PLJ 2006 Karachi 1 (DB)
Present: Muhammad Mujibullah Siddiqui and Maqbool Baqar, JJ.
ARBAB AKBAR ADIL--Petitioner
versus
GOVERNMENT OF SINDH through HOME SECRETARY--Respondent
Const.P. No. D-705 of 2005, heard on 24.6.2005.
(i) Constitution of Pakistan, 1973--
----Art. 10(4)--Detention order passed against detenus--Review board--Proceedings before Review Board outlined and illustrated. [Pp. 11 & 12] B
(ii) West Pakistan Maintenance of Public Order Ordinance, 1960--
----S. 3--Constitution of Pakistan (1973), Art. 199--Detention order of detenus assailed--Legality--Word "satisfied" as used in S. 3(1) of Ordinance, 1960, was indicative of fact that Authority issuing detention order must apply its mind to material/grounds forming basis of such order--Grounds on which detention order was made must precede satisfaction of competent authority--Order passed by authority must not be inconsistent with Fundamental Right conferred by the Constitution--Impugned order of detention of detenus being violative of provisions contained in S. 3 of the Ordinance of 1960 and with Arts. 10(4), (5) and (6) of the Constitution was not sustainable and the same was set aside resulting in release of detenus of not required in any other case. [Pp. 11 & 12] A & C
(iii) West Pakistan Maintenance of Public Order Ordinance, 1960--
----S. 3--Constitution of Pakistan, 1973 Arts. 10 & 199--Detention order of detenus assailed--Detention order passed against detenus was ground to be violative of S. 3 of the Ordinance of 1960 and Arts. 10(4) (5) & (6) of the Constitution, therefore, not sustainable--Ground, on which detention order relating to detenus was found to be not sustainable stated and illustrated. [Pp. 12, 13 & 14] D
Mr. Shahadat Awan, Advocate for Petitioner.
Mr. Ahmad Pirzada, learned A.A.G. alongwith Section Officer, Home Department for Respondent.
Date of hearing : 24.6.2005.
Judgment
Muhammad Mujibullah Siddiqui, J.--The petitioner has assailed detention order in respect of detenue Arbab Murad Ali son of Wali Muhammad Nohri, who is stated to be a senior practicing lawyer aged about 70 years at Mithi and a respectable Zamindar.
It is contended in the memo of petition that the detenue Arbab Murad Ali, advocate is a political rival of the present Provincial Government and, therefore, on the ground of political vicitmisation, his detention order has been issued. It is also alleged that in addition to being vague and violative of the provisions contained in Section 3(1) of the Sindh Maintenance of Public Order Ordinance, 1960, the detention order is bad in law, being violative of Section 3(6) of the said Ordinance as copy of the detention order has not been supplied to the detenue.
We have heard Mr. Shahadat Awan, learned counsel for the Petitioner and Mr. Ahmed Prizada, learned Addl. A.G.
For the sake of convenience the detention order is reproduced below:
"No. SO (Judl. II) 6-09/2005: Whereas, the Government of Sindh are satisfied that with a view to prevent Murad Ali s/o Wali Muhammad Nohri, resident of village Bukhario Taluka Diplo District Tharparkar, from acting in a manner prejudicial to public safety and maintenance of public order in the Province of Sindh, it is necessary to take action against him.
And Whereas, it has been made to appear to me through police reports that Murad Ali is a dangerous, hazardous, notorious and always indulges in anti Government activities and is likely to disrupt peace of the area.
Now, Therefore, I, Brig. (R) Ghulam Muhammad Mohatarem, Secretary, Home Department, Government of Sindh, Karachi in exercise of the powers vested in me under Section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1969, do hereby order for detention of said Murad Ali for thirty (30) days commencing from 4th June, 2005 to 3rd July, 2005 and he be remained in Central Prison, Hyderabad. The grounds for detention are as under:--
(i) That there are reasons to believe that he will indulge in activities prejudicial to public safety, and maintenance of good order in Sindh.
(ii) That he is a dangerous, hazardous, notorious and always indulges in anti Government activities and is likely to disrupt peace of the area.
SECRETARY TO GOVT. OF SINDH
HOME DEPARTMENT'
Mr. Shahadat Awan, learned counsel for the Petitioner has submitted that the law relating to preventive detention already stands settled by various judgments of this Court and other superior Courts wherein the parameters have been laid down for a valid detention order and the circumstances in which the detention order shall not be held to be valid and shall be liable to be struck down.
He has taken us through the detention order in support of his contention that the detention order is totally vague, indefinite and in general terms in which the Home Secretary has merely reproduced the words used in Section 3(1) of the Sindh Maintenance of Public Order Ordinance, 1960. He has contended that para-1 of the detention order states that the Government of Sindh is satisfied that it is necessary to prevent the detenue from acting in a manner prejudicial to public safety and maintenance of public order in the Province of Sindh.
In para-2 of the detention order it is stated that it appears to the Home Secretary through police reports that detenue is a dangerous, hazardous, notorious and always indulges in anti Government activities and is likely to disrupt peace of the area.
In para-3 of the detention order it is stated that the Home Secretary is satisfied that the detenue should remain in Central Prison. Hyderabad from 4.6.2005, to 3.7.2005, on the grounds that (i) there are reasons to believe that he will indulge in activities prejudicial to public safety, and maintenance of good order in Sindh and (ii) that he is a dangerous, hazardous, notorious and always indulges in anti Government activities and is likely to disrupt peace of the area.
In support of his contention that the generalised statements are not sufficient, he has placed reliance on the law laid down by a Division Bench of this Court in the case of Liaquat Ali vs. Government of Sindh Through Secretary, Home Department and another, P.L.D. 1973 Karachi 78, wherein, after a detailed survey of the law and the judgments passed by the Hon'ble Supreme Court, the dictum has been laid down as follows:
"6. An order of preventive detention has to satisfy the requirements laid down by their Lordships of the Supreme Court in the aforesaid four judgments, that is to say, (i) the Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention: (ii) that satisfaction should be established with regard to each of the grounds of detention and, if one of the grounds is shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid; (iii) that initial burden lies on the detaining authority to show the legality of the preventive detention, and (iv) that the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the Court to decide. In addition to these requirements, the Court has further to be satisfied, in cases of preventive detention, that the order of detention was made by the authority prescribed in the law relating to preventive detention; that each of the requirements of the law relating to preventive detention should be strictly complied with; that "satisfaction" in fact existed with regard to the necessity of preventive detention of the detenue; that the grounds of detention had been furnished within the period prescribed by law, and if no such period is prescribed, then "as soon as may be"; that the grounds of detention should not be vague and indefinite should not be vague and indefinite and should be comprehensive enough to enable the detenue to make representation against his detention to the authority prescribed by law; that the grounds of detention are within the scope of the law relating to preventive detention, that is they are not irrelevant to the aim and object of this law and that the detention should not be for extraneous considerations or for purposes which may be attacked on the ground of malice."
After considering the contentions raised in the cited case it was reiterated that there should be strict compliance of the provisions of any law which permits detention without trial of a citizen. It was observed that in the said case two essential requirements of the West Pakistan Maintenance of Public Order Ordinance, 1960 were not carried out, that is to say, (i) the grounds of detention were not served on the detenue "as soon as may be", as required by sub-section (6) of Section 3 of the Ordinance and (ii) there was no compliance of sub-section (2) of Section 3 of the Ordinance which requires the District Magistrate to refer the prejudicial activities of a person to the Provincial Government, which reference appears to be a condition precedent for the order of detention.
After examining the facts it was further observed that the grounds of detention were served on the detenue in compliance of the order of the Court, i.e. after 15 days of the order of detention which was violative of the provisions contained in sub-section (6) of Section 3 of the Ordinance.
Dilating on the provisions contained in sub-section (2) of Section 3 it was held that, "at first a reference has to be made by the District Magistrate to the Provincial Government with regard to the prejudicial activities of a person before an order of detention is made under sub-section (1) of this Section." It was further held that, "the procedure which should be adopted would be that firstly a reference is made by the District Magistrate to the Provincial Government with regard to the prejudicial activities of a person and then it is the Provincial Government which should be satisfied as to the necessity that such person should be detained under the Ordinance, and, upon such satisfaction being reached the necessary order is made directing the District Magistrate to arrest or detain such person." It was observed that, "the evidence of the Home Secretary establishes that no reference whatsoever was received by the Provincial Government from the District Magistrate of Dadu before he made the order of detention." After examining the facts of the case it was held that, "the grounds of detention were vague and indefinite and by reason of the vagueness and indefinite nature of grounds the detention order was bad."
Mr. Shahadat Awan has further placed reliance on a Division Bench judgment of this Court in the case of Muhammad Abdullah vs. District Magistrate West Karachi, 1988 P.Cr.L.J. 1087. In this case reliance was placed on the judgment in the case of Liaquat Ali vs. Government of Sindh through Secretary, Home Department and another (supra). In this case detention order was issued mainly on two grounds. "First, that" the detenue was' facing trial in some cases and secondly, that his activities were prejudicial to the interest of the State. It was held that mere pendency of a case is not a sufficient ground for detention of a person and that the ground that the activities of the detenue were prejudicial to the interest of the State were vague and indefinite. The learned Division Bench of this Court agreed with the contention of counsel for the petitioner that since the specific instances in respect of the alleged activities of the detenue and particulars in regard to the places, dates and times thereof were not given, therefore, the grounds were vague. It was observed that it has been repeatedly held by this Court that the detention of a person cannot be based on vague and general grounds.
Mr. Ahmed Prizada, learned Addl. A.G. has contended that it is not necessary that all the grounds on basis whereof opinion is formed or the Provincial Government is satisfied that remaining of a person at large is prejudicial to the interest of State or Government, should be incorporated in the detention order. We partly agree with the contention that it is not necessary to give the entire details and all such material in the grounds contained in the detention order, but as held in the judgments cited earlier the necessary particulars and details are required to be given in the detention order so that the detenue is able to make the representation to the competent authority while challenging the detention order. We are of the considered opinion that a detention order taking away the liberty of a citizen is not sustainable on subjective considerations. There should be objectivity in the detention order and the objectivity can be demonstrated by giving necessary details and particulars in the detention order. We will further add that the word "satisfied" used in Section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 is indicative of the fact that the authority issuing the order should apply his mind to the facts forming basis of detention order. Until and unless there is something tangible in the detention order it cannot be said that the Authority issuing the detention order has applied his mind objectively and his opinion is based on reasons.
At this stage we would like to observed that, we have made enquiry from Mr. Ahmed Prizada, the learned Addl. A.G. whether any material was placed before the Government or was called, by it for satisfying that the circumstances do exist necessitating prevention of detenu Arbab Murad Ali from acting in any manner prejudicial to public safety or maintenance of public order. We further asked to show that the competent authority issuing detention order, i.e. Home Secretary had applied his mind to the grounds on the basis of which the order was to be made. In reply to the query the learned Addl. A.G. has produced a letter dated 2.6.2005 written by District Police Officer Tharparkar at Mithi, to the Home Secretary, Government of Sindh stating therein that the detenue is a dangerous and hazardous person, he is desperate and is instigating public to come on road and protest against the Government and his remaining outside the jail is against public safety. There is an endorsement on this letter as follows:
"Pl. pend till recommendation of PPO.
Sd/-
SO (J-II) "
The endorsement indicates that no action was to be taken till the recommendation of Provincial Police Officer. The learned Addl. A.G. has produced another letter from the Provincial Police Officer addressed to Home Secretary dated 10.6.2005 forwarding the letter written by RPO, Hyderabad to PPO, Sindh dated 3.6.2005 forwarding the letter of DPO dated 2.6.2005. The letter dated 3.6.2005 written by a PDSP namely, Mehfooz Ahmed Junejo on behalf of Regional Police Officer, Hyderabad states that the request be made to Secretary, Government of Sindh to issue warrant of arrest against Murad Ali son of Wali Muhammad Nohri for his detention under Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 for a period of 30 days as reported by District Police Officer, Tharparkar. A perusal of letter addressed by RPO to PPO shows that it was received in the office of PPO on 6.6.2005. The letter written by PPO dated 10.6.2005 to the Secretary, Government of Sindh, Home Department was received in the office of Home Department on 13.6.2005. There are various endorsements on the letter dated 10.6.2005. Muhammad Khalid Khan, Section Officer, Home Department, who is present in Court has stated that there is initial of Additional Home Secretary on this letter which is dated 14.6.2005 and there is an endorsement of Section Officer to the effect that the detention order has already been issued. A perusal of the material produced by the learned Addl. A.G. shows that the detention order was issued on 4.6.2005 and the recommendation of PPO as noted above was received in the office of Home Department on 13.6.2005, meaning thereby that the detention order was issued, nine days before the receiving of recommendation of the PPO. It further shows that the detention order is violative of the order appearing on the letter dated 2.6.2005 to the effect that the matter may be kept pending till receiving of recommendation from the PPO.
After the pronouncement of judgments referred to above, the law has been amended. In the case of Liaquat Ali (Supra), the provision contained in sub-section (2) of Section 3 was heavily relied upon which has been omitted by Sindh Ordinance No. XXXVI of 2001 dated 28.11.2001 and, therefore, it is imperative to consider the effect of omissions and the requirements of law as it exists at present.
For the sake of convenience, Section 3 of the Sindh Maintenance of Public Order Ordinance 1960, is reproduced below:--
"3. (1) Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in such custody as may be prescribed under sub-section (7), of such person for such period as may, subject to the other Provisions of this section, be specified in the order, and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may, extend from time to time the period of such detention, for a period not exceeding six months at a time.
Explanation I-For the purposes of this section--
(i)
dealing in black-market' orhoarding' as defined in the Hoarding and, Black Market Order, 1958 (P.C. No. XIV of 1956); or
(ii) an act of smuggling punishable under the Customs Act, 1969 (IV of 1969), or under other law for the time being in force;
shall be deemed to be an act prejudicial to the Maintenance of public order.
(iii) an act punishable as an offence under the Passport Act, 1974:
Explanation II, Whoever is or was a member of an association or its Executive committee, which association is or has been declared to be unlawful under any law for the time being in force in the Province, at any time during the period of seven days immediately before it was so declared to be unlawful, or association is on the Executive Committee thereof after it has been so declared to be unlawful shall be deemed to be acting in a manner prejudicial to be public order for the purposes of this Section:
(2) ...........Omitted.
(3) (a) An order of arrest under sub-section (1) may be addressed to a Police Officer or any other person and such officer or person shall have the power to arrest the person mentioned in the order and in doing so he may use such force as may be necessary. The Police Officer or the other person, as the case may be, shall commit the arrested person to such custody as may be prescribed under sub-section (7).
(b) A Police Officer not below the rank of Sub-Inspector, if satisfied on receipt of credible information that a person against whom an order of arrest or of arrest and detention has been made under this section is present within such officer's jurisdiction, may arrest him without a warrant in the same manner as he would have done if such order of arrest had been addressed to him and thereupon commit the arrested person to such custody as may be prescribed under sub-section (7), or if he receives any requisition in this behalf from the police officer or other person to whom the warrant of arrest for the person arrested is addressed, make over the custody of the arrested person to such police officer or other person.
(4) ............. Omitted
(5) Government shall constitute a Board consisting of a Judge of the High Court of who shall be nominated by the Chief Justice of that Court, and a senior officer in the Service of Pakistan, who shall be nominated by the Government of Sindh.
(5-a) No person shall be detained for a period exceeding three months unless the Board has reported, before the expiration of the said period of three months, that there is, in its opinion, sufficient cause for such detention.
(5-b) Where a person is to be detained for a period exceeding three months, Government shall, before the expiration of the said period of three months, refer his case to the Board.
(5-c) A person whose case has been referred to the Board under the provisions of sub-section (5-b), shall not be entitled to appear by any legal practitioner in any matter connected with the case referred to the Board.
(5-d) The Board shall, after considering the material placed before it and the representation, if any, made by the person whose case has been referred to it, hearing such person, if he so desires, and calling for such further information as it may require from Government or may be placed before it by the person detained, submit its report before the expiration of the period of three months specified in sub-section (5-b), to Government whether in its opinion there is sufficient cause for the detention of such person.
(5-e) The proceedings and the report of the Board excepting that part of the report in which the opinion of the Board is specified, shall be confidential.
(5-f) If in any case the Board reports that there is, in its opinion, no sufficient cause for the detention of the person whose case has been referred to it, for a period exceeding three months, Government shall rescind the detention order and direct such person to be released on the expiry of the said period of three months. In case the Board reports that there is in its opinion, sufficient cause for the detention of such person, Government may, subject to the provisions of sub-section (1), continue to detain him for such period as it may deem fit.
(6) Where a detention order has been made under this section Government shall as soon as may be communicate to such person the grounds on which the order has been made, inform him that he is at liberty to make a representation to Government against the order, and afford him the, earliest opportunity of doing so:
Provided that Government may refuse to disclose facts which such authority consider it to be against public interest to disclose.
(6-a) where a representation is made to Government under sub-section (6), Government may, on consideration of the representation and giving the person detained an opportunity of being heard, modify, confirm or rescind the order.
(7) So long as there is in force in respect of any person an order under this Section directing that he be detained, he shall be liable to be detained in such custody and under such conditions as to maintenance, discipline and punishment for offences and breaches of discipline as Government may from time to time prescribe by general or special order.
(8) If Government has reason to believe that a person in respect of whom an order of arrest and detention has been passed under this section has absconded or is concealing himself so that such order cannot be executed, Government may--
(a) forward a copy of the order, with a declaration that such person cannot be found, to a Magistrate of the first class having jurisdiction in the place where the said `person ordinarily resides and thereupon the provisions of Sections 87, 88 and 89 of the Code shall apply in respect of the said person and his property as if the order directing that he be arrested and detained where a warrant issued by the magistrate:
(b) by order notified in the Official Gazette direct the said person to appear before such officer at such place and within such period as may be specified in the order and if the said person fails to comply with such direction he shall, unless he proves that it was not possible for him to comply therewith and that he had within the period specified in the order, informed the officer concerned of the reasons which rendered compliance there with impossible and of his whereabouts or taken all possible steps to give such information, be punishable with imprisonment for a term which may extend to three years or with fine, or with both.
(9) Government may at any time, subject to such conditions as it may think fit to impose, release a person detained under this section and may require his to enter into a bond, with or without sureties, for the due observance of the conditions.
(10) the Government or any person authorised by it in this behalf may summon and interrogate or cause the summoning and interrogation of any person, including a person arrested or detained under this section, if in his opinion such interrogation is likely to lead to the discovery of information, which may enable the more effective exercise of powers under this Ordinance, whether in respect of the person interrogated or any other person, and the person interrogated under this sub-section shall be bound to answer truthfully all questions pertaining to the subject of the enquiry.
A perusal of the above, section in its present form shows that the procedure prescribed in sub-section (2) has been omitted with the result that the situation has become very fluid. The effect of omission of sub-section (2) of Section 3 is that now the law laid down in Liaquat Ali's case (supra) pertaining to the procedure to be adopted, which envisaged a reference by District Magistrate or any other servant of Government authorised in this behalf by a general or special order of the Government, is no more valid. However, it does have the effect of taking away the element of objectivity from the order to be made under Section 3(1) of the said Ordinance.
As already observed earlier the word "satisfied" used in Section 3(1) of the said Ordinance, is indicative of the fact that the authority issuing order shall apply its mind to the material/grounds forming basis of the order and for that purpose it is always imperative that there should be necessary material before the competent authority issuing the detention order under Section 3(1). On the basis such material/grounds, the said authority shall satisfy itself that for preventing of any person from acting in any manner prejudicial to the public safety `or maintenance of public order, it is necessary to arrest and detain such person in custody. It is cardinal principle of interpretation of laws, that entire scheme of law is to be read together and no provision of law is to be read in isolation. Adhering to this principle, when the provisions contained in sub-section (1) of Section 3 are read with sub-section (6), we find that the grounds on which the detention order is made must precede the satisfaction of the competent authority. For this purpose the existence of necessary material before the competent authority is sine-qua-non.
The necessary material may be brought to the notice Government by subordinate functionaries under the Provincial Government or may be called by the Provincial Government itself, for satisfying that the situation do exists necessitating the issuance of detention order in respect of a person preventing him from acting in any manner prejudicial to public safety or Maintenance of public order. In the absence of any such material the detention order would become subjective in nature. It is also necessary because the constitution of Islamic Republic of, Pakistan, has jealously guarded the fundamental rights of the citizens. It is provided in Article 8 of the Constitution that, any law or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by Chapter I, Part-II of the Constitution, shall, to the extent of such inconsistency, be void. It is contained in Article 10(4) of the Constitution that, no law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorise the detention of a person for a period exceeding three months unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of three months, unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention.
It is further provided in Article 10(5) that, when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, within fifteen days from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order. Provided that authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose.
A perusal of the above provisions clearly indicates that the person detained is entitled to receive the grounds on which the detention order has been made. Until and unless the authority making such order refuses to disclose the facts which such authority considers it to be against the public interest to disclose. In the ordinary course, the authority making the order is also required to furnish all the particulars before the Review Board, all documents relevant to the case unless a certificate signed by the Secretary to the Government concerned, to the effect that it is not in the public interest to furnish a document, is produced. Thus, in the ordinary course there should be certain documents available with the authority issuing detention order on the basis whereof the said authority is satisfied on the grounds disclosed in the detention order that detention of a person in order to prevent him from acting in a manner prejudicial to public safety or the maintenance of public order is necessary.
In the light of law culled from the provisions contained in Section 3 of the sindh Maintenance of Public Order Ordinance, 1960 read with Article 10(4), (5) & (6) of the Constitution of Islamic Republic of Pakistan, as well as the dicta laid down in the judgments relied upon by Mr. Shahadat Hussain Awan, for the reasons recorded above and after going through the material placed before us, we are of the considered opinion that the impugned detention order is not sustainable on the following grounds:--
There is a specific plea raised in Para-6 of the petition that the copy of the detention order has not been communicated to the detenue as required under Section 3(6) of the Ordinance. In the comments filed on behalf of the Home Secretary, there is nothing in reply to the contention. As the comments are silent on this point, therefore, the averments made in the memo of petition to the effect that the copy of the detention order was not supplied shall be deemed to have been admitted.
A perusal of record produced before us shows that the recommendation of the Provincial Police Officer for issuance of detention order was received in the office of the Home Secretary on 13.6.2005 and the detention order was issued on 4.6.2005.
The grounds of detention contained in the detention order are generalised, vague and indefinite and do not confirm to the requirements of law as explained in the judgments cited above. On the basis of these vague, indefinite and generalised grounds it is not possible for the detenue to make any representation, to the competent authority, against the detention order.
The Home Secretary has not applied his mind to the facts of the case and has acted in mechanical manner, probably under the directives of some administrative authority whose name does not transpire on the record. The allegations are against the Chief Executive of the Province namely, the Chief Minister but in the absence of sufficient material on record in this behalf we would not like to give any finding as to who directed the Home Secretary to issue the detention order and under what circumstances. It is sufficient to observe that the detention order is violative of the safeguards and requirements provided in the Sindh Maintenance of Public Order Ordinance, 1960 and impinges upon the fundamental rights of the citizens enshrined in the Constitution of the Islamic Republic of Pakistan.
The learned Addl. A.G. argued that there are several cases, FIRs and complaints against the detenue. We have examined the entire file produced before us which contains FIRS starting from the year 1972 but we have not found any such material on the basis whereof a detention order can validly be issued. It already stands decided that if any person is facing trial in a case in which he can be punished by the Court of competent jurisdiction, the pendency of such case shall not be sufficient basis for issuance of detention order against a person.
It also stands decided that if out of several grounds even a single ground is not sustainable in facts and law, the entire detention order would be held to be invalid and not sustainable in law. The detention order contains that the detenue is dangerous, hazardous and notorious which is not supported by any material. We would like to reiterate that the detenu is a senior practising lawyer and is aged about 70 years. This ground alone is insufficient to strike down the entire detention order.
For the foregoing reasons the detention order is held to be illegal, not in accordance with law, void and invalid. The detention order is hereby struck down accordingly. The Superintendent Central Prison. Hyderabad is directed to release the detenue Arbab Murad Ali son of Wali Muhammad Nohri forthwith, if not required in any other case.
The Petition is allowed as above.
(A.A.) Detenus released.
PLJ 2006 Karachi 14
Present: S. Zawwar Hussain Jafri, J.
QASIM INTERNATIONAL CONTAINER TERMINAL AZAD EMPLOYEES UNION through its PRESIDENT/JOINT
SECRETARY--Petitioner
versus
REGISTRAR OF TRADE UNIONS, SINDH and 2 others--Respondents
C.P. No. (S) 243 of 2002, decided on 23.5.2005.
Industrial Relations Ordinance, 1969 (XXIII of 1969)--
----S. 22(1)--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Registered Trade Union--Issue of CBA Certificate--H.C.A. regarding CBA status in O.I.C.T. pending before High Court--Collective bargaining agent certificate not issued--Validity--No direction can be passed for respondent to issue C.B.A. certificate under Section 22(1) of I.R.O. 1969 in favour of petitioner union till final decision--This is pre-mature petition filed by petitioner as impugned order 6.2.2003 is not passed against petitioner--Held : No relief can be granted to petitioner to set aside--Petition dismissed. [P. 17] A
Mr. Muhammad Shafiq Qureshi, Advocate for Petitioner.
Mr. Abbas Ali, Additional Advocate General for Respondent No. 1.
Mr. Mehmood Abdul Ghani, Advocate for Respondent No. 2.
Mr. Khalid Imran, Advocate for Respondent No. 3.
Chaudhry Ashraf Khan, Advocate for Intervenor.
Date of hearing : 4.3.2005.
Judgment
Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has prayed for the following reliefs:--
(a) Quash the impugned order dated 6.2.2002.
(b) Direct the Respondent No. 1 to issue collective bargaining agent certificate under Section 22(1) of IRO, 1969 in favour of petitioner union to represent the permanent workers employed by the Respondent No. 2.
(c) Direct the Respondent No. 1 to issue Provincial Certificate of CBA in favour of petitioner union till the final disposal of the petition and or alternatively the respondent No. 2 be directed to treat the petitioner union as recognised union to perform the functions of CBA union untill certificate of CBA issued; meanwhile impugned order be suspended.
(d) Any other relief/reliefs deemed fit any proper under the circumstances of the case be also granted: Cost of the petition be also allowed in the interest of justice.
The brief facts of the case as enumerated in the petition are that the petitioner is a registered union in respect of the workers employed directly by the Respondent No. 2 on permanent job to carry out operation duties, both skilled and unskilled in connection with the business and affairs of the Respondent No. 2. The Respondent No. 2 are carrying out the business of loading and unloading containers, to and from the ship at Port Qasim Berth Nos. 5, 6 and 7. The Respondent No. 2 has built Container Terminal on B.O.O. under the agreement with Government of Pakistan/ Port Qasim Authority and its lease was for a period of 30 years. The petitioner union was formed on 11.2.2001, an application was submitted for its registration on 12.2.2001 alongwith necessary documents on which Respondent No. 1 raised objections which were removed by the petitioner but the Respondent No. 1 delayed its registration at the instance of Respondent No. 2 and thereby acted malafidely. The Respondent No. 1 sent the file to Law Department for their opinion, with sole object to delay the matter, whereas under Section 8 of IRO, 1969 the union is to be registered or refused within 15 days. The petitioner union wrote letter to the Respondent No. 1 but no action was taken and matter was delayed, but however union was registered on 3.1.2002. The petitioner union apprehended commission of acts of unfair labour practice due to the action of union, as such, filed a case before the learned Member NIRC at Karachi Camp, on the said petition ad-interim orders were passed restraining respondents, removal from employment which orders were confirmed by the consent of parties but the petition was dismissed for non-prosecution. The Port Qasim Authority issued pre-qualification conditions for handling Cargo at Port Qasim on Berth Nos. 2, 3 and 4, previously it was also for Berth Nos. 5, 6 and 7. The petitioner union being only registered Trade Union applied for Collective Bargaining Agent Certificate under Section 22(1) of IRO, 1969 alongwith membership list on 13.1.2002 but the Respondent No. 1 without considering the facts of case at the instance of Respondent No. 2 refused to issue CBA Certificate and it was pleaded that HCA No. 249/2001 fled by the Port Muhammad Bin Qasim Harbour & Dock Workers Union regarding CBA status in Q.I.C.T. is pending in this Court. This information was conveyed to the petitioner union vide letter dated 6.2.2002 which is impugned in this petition.
Mr. Muhammad Shafiq Qureshi learned counsel for petitioner has contended that the Respondent No. 1 has committed illegality in rejecting the application of petitioner for Issuing CBA certificate under Section 22(1) of IRO, 1969. Although, the petitioner union had more than 1/3rd membership out of the total strength of workers employed by the Respondent No. 2. The Port Muhammad Bin Qasim Harbour & Dock Workers Union also claims to be CBA union in respect of Dock Workers employed or to be employed at Port Qasim as defined under the Dock Labourers Act, 1934 and Dock Workers (Regulation Emp.) Act, 1974. Whereas, the petitioner union applied for CBA Certificate in respect of permanent workers employed directly on permanent job by Respondent No. 2 who are workmen under Pakistan Industrial and Commercial Employment (S.O.) Ordinance, 1968. According to the learned counsel the Respondent No. 1 committed illegality on the fact of ignoring that the said Port Muhammad Bin Qasim Harbour & Dock Workers Union is not the registered Trade Union of workers employed by Respondent No. 2 nor its constitution, provides the members of Respondent No. 2. He further urged that the rejections of application of the petitioner the fundamental rights of petitioner and its members and is perpetuating injustice by the Respondent No. 1 ignoring the object of IRO, 1969. Learned counsel further contended that the petitioner is entitled to CBA Certificate under Section 22(1) of IRO, 1969.
Mr. Mehmood Abdul Ghani learned counsel for Respondent No. 2 has vehemently opposed this petition and submitted that the petitioner has admitted in the petition for the pendency of HCA No. 249/2001 in this Court and the impugned order is only an information to the petitioner on the basis of application moved by the petitioner on 13.1.2002 and the said order can not be challenged in writ jurisdiction. In support of his arguments Mr. Mehmood Abdul Ghani has relied upon the case of Muslim Commercial Bank Ltd. v. Registrar, Industry Wise Trade Union (2002 PLC 145) and Rice Export Corporation Labour Union v. Full Bench of the National Industrial Relations Commission (1992 PLC 125).
Mr. Khalid Imran learned counsel for Respondent No. 3. Has also opposed this petition and submitted that the Certificate was issued to the petitioner as CBA and against that order an appeal is also pending. The petitioner has claimed in this petition for quashment of the order dated 6.2.2002 which has been issued by the Directorate of Labour (East Division) on the basis of application moved by the petitioner. He has also relied on the case viz; Muslim Commercial Bank Ltd. v. Registrar, Industry Wise Trade Union (2002 PLC 145).
Chaudhry Muhammad Ashraf Khan learned counsel for the Intervenor has adopted the arguments advanced by the M/s. Mehmood Abdul Ghani and Khalid Imran advocates.
Mr. Abbas Ali learned Additional Advocate General for the official respondent has raised point, about the maintainability of this petition. According to him the impugned order/letter dated 6.2.2004 is an information and fact regarding pendency of HCA No. 249/2001 which is pending in this Court, filed by Port Muhammad Bin Qasim Harbour & Dock Workers Union regarding CBA status in Q.I.C.T. as no adverse order has been passed against the petitioner, therefore petition is liable to be dismissed.
I have heard learned counsel for the respective parties, examined the record and case law cited at bar.
From perusal of the impugned order/letter dated 6.2.2002 it is obvious that petitioner had moved an application to the Directorate of Labour dated 13.1.2002 which was received in the office of Respondent No. 1 on 14.1.2002 for seeking CBA certificate under Section 22(1) of IRO, 1969, therefore, the information was conveyed to the petitioner that application as referred above was rejected by the Respondent No. 1 and the said order has been challenged in the appeal being HCA No. 249/2001 which is pending in this Court filed by Port Muhammad Bin Qasim Harbour & Dock Workers Union and same is still pending in which interim relief was granted. The said interim relief still holding the field. The petitioner Para `C' of the grounds of his petition has admitted regarding pendency of HCA No. 249/2001. It is manifest that no direction can be passed for the Respondent No. 1 to issue CBA certificate under Section 22(1) of IRO, 1969 in favour of petitioner union till the HCA No. 249/2001 is finally decided. This is pre-mature petition filed by the petitioner as the impugned order dated 6.2.2002 is not passed against the petitioner. In view of the above discussion no relief can be granted to the petitioner by set aside the impugned letter/order of Respondent No. 1. The petition is misconceived and same is dismissed with cost.
(A.S.) Petition dismissed.
PLJ 2006 Karachi 17
Present: Muhammad Sadiq Leghari, J.
M/s. EMMAY ZED PUBLICATIONS (Pvt.) Ltd.--Appellant
versus
ABDUL REHMAN BALOCH--Respondent
Labour A. No. 227 of 2004, decided on 3.5.2005.
(i) Industrial Relations Ordinance, 2002--
----S. 48(2)--Newspaper Employees (Conditions of Service) Act 1973, S. 4--Termination of services of employee on ground of re-organization--Legality--Re-organization of establishment was not visible anywhere--Single termination seems to be the entire re-organization--Re-organization has to be fully justified and its process is to be carried essentially under just and fair scheme--Appellant's plea that employee was not acquainted with new equipments does not carry any weight-Such plea was not only invalid but after thought too--Such plea was not mentioned in notice of termination. [Pp. 22 & 23] A & B
(ii) Newspaper Employee (Conditions of Service) Act, 1973--
----S. 4--Industrial Relations Ordinance, 2002, S. 48(2)--Letter of termination--One cause of termination was better allegedly sent by employee to functionaries of Federal Government--Original letter having not be produced or sent for, the same could not be deemed to have been signed and despatched by employed such plea raised by appellants was thus, not proved. [P. 23] C
(iii) Newspaper Employees (Condition of Service) Act, 1973--
----S. 46(5)--Awarding of compensation in lieu of re-instatement--Legality--Awarding of compensation to employee in lieu of re-instatement has no force except academic interest--Provision of S. 46(5) of the Act of 1973, itself speak, re-instatement as first right of workmen whose services were terminated wrongfully--Section 46(5) of the Act of 1973 was only enabling one authorizing labour Court to award compensation in lieu of re-instatement--Labour Court having hold termination to be malicious and with object to frustrate verdict and direction of Court, compensation was not required to be awarded. [P. 23] D
(iv) Newspaper Employees (Conditions of Service) Act, 1973--
----S. 17--Industrial Relations Ordinance, 2002, S. 48(2)--Sub-editor of newspaper--Status as workman--Proviso to S. 17 of the Act of 1973, does not apply to editor of a newspaper--Sub-Editors do not get that status from any provision of law--Sub-editor of newspaper is thus, workman and can seek his grievance in terms of Industrial Relations Ordinance, 2002--Termination of employee being malicious and outrageous Labour Court had rightly ordered re-instatement of employee, therefore, no interference was warranted in the same. [P. 24] E
PLD 1999 SC 990; LLC 1967 Dacca 641, ref.
Mr. Shahid Anwar Bajwa, Advocate for Appellant.
Mr. Shahenshah Hussain, Advocate for Respondent.
Dates of hearing : 14.4.2005; 18.4.2005 & 19.4.2005.
Judgment
Present labour appeal arises out of the facts that Respondent Abur Rahman Baloch was employed by the appellant as Sub-Editor of their newspaper Daily Business Recorder on 16.6.1992. While serving as such he had been complaining of non-payment of the benefits as allowed under the 6th Wages Board Award. The row resulted in termination of the services of the respondent on 23.5.96.
He challenged the termination order before Labour Court through Grievance Application No. 93/96 but the same was dismissed. His appeal against that dismissal was, however, accepted by the learned Singh Labour Appellate Tribunal Vide order dated 17.9.1997. The appellant challenged the said order before this Court through writ petition which was dismissed on 5.1.1998. The matter was further agitated before the Hon'ble Supreme Court through civil appeal which dismissed it by order dated 5.12.2000 holding therein as under:
"......Since it is a question of termination of service of an employee, therefore, the reasons of his termination which may constitute good cause primarily, among others, should relate to the performance of his duties and conduct and other cause of similar nature and not that his period under the contract has expired. It is allowed to be used by the employer for termination of his service, the same would amount to nullify the provisions of Section 4 of the Act..........."
The appellant issued order of reinstatement of the respondent on 1.2.2001. Two days thereafter i.e. on 3.2.2001 another order terminating his services of the respondent once again was issued by the appellant.
This way the respondent was pushed into second round of the litigation. He challenged the termination order through grievance petitioner before the Labour Court No. 1 at Karachi under Section 25-A, IRO, 1969. The application was accepted by the Labour Court on 27.1.2004 directing the termination order illegal and malicious. The learned Labour Court also directed the reinstatement of the respondent within one month. That the order has been impugned through present labour appeal.
Mr. Bajwa representing the appellant argued that the services of the respondent were terminated for good causes which were expressly mentioned in the written notice issued to the respondent under Section 4 Newspaper EMP (Conditions of Service) Act (hereinafter referred to as the Act). According to him, the learned Labour Court fell in error by declaring the reasons mentioned in the termination notice not to be the good causes. He further contended that the main cause for the termination of the respondent employment was reorganization of the establishment which had become essential on advancement of computer technology and necessity of internet edition. In support of his contention the learned advocate referred to the case of United Bank Ltd. reported in PLD 1999 SC 990. continuing with his contentions Mr. Bajwa stated that after the news room of Daily Business Recorder had been set on fire by unruly mob the appellant re-habiliated the same by equipping it with state of Art technology whereafter the internet edition became the main work engine of the newsrooms. He further argued that since all Sub Editors except the respondent had got acquainted with the new equipments therefore only he deserved to be retrenched/terminated in the process of reorganization.
Mr. Bajwa next contended that the other cause of the termination of the respondent service was loss of mutual confidence in the result of a letter which he had sent to the authorities including Chief Executive on May 27, 2000 levelling therein serious and penal allegations against the appellant including one that the owner of daily Business Recorder would try to eliminate him.
The learned Advocate also raised objections about the maintainability of grievance application before the Labour Court arguing that although the designation of the respondent was Sub-Editor but the nature of the duties being performed by him had given him status of Editor, therefore, the provisions of Section 17 the Act does not recognize him as workman. Consequently, he not being a workman could not approach Labour Court against the termination order. He referred to the proviso to Section 17 of the Act which excludes the application of the Section to a person who is employed as the Editor of a newspaper.
In the last he contended that when the Labour Court had reached the conclusion that the termination was not legal then it should have kept in view the strained relations between the parties and allowed adequate compensation to the respondent instead of his reinstatement. In support of this contention the learned Advocate referred to the case Re: Qamarul Inam Khan, Managing Director Azad and Publication Ltd. vs. Abdul Rasheed Basitpuri and another (LLC 1967 (DACCA) 641).
Against the above contentions Mr. Shahenshah Hussain, learned Advocate representing the respondent has defended the impugned order arguing that that his client had been appointed as Sub-Editor and was performing duties as such. He was not employed as Editor. The nature of his duties were also different from the nature of the duties and privileges of Editor. Moreover, the appellant had not produced evidence in respect of the actual duties performed by Editor and Sub-Editor nor such position was taken before the Labour Court and in the memo of the appeal. Therefore, the plea that the respondent was Editor is after though and cannot be taken at the time of arguments of the appeal.
On merits Mr. Shahenshah further argued that reorganization of the appellant has not been proved. Even if it is accepted that the appellant re-organized itself then also termination of only one particular Sub-Editor who remained locked with it in litigation is big reflector of the targeted termination and mala fides. Moreover, the notice does not contain the reason for which the respondent was picked for terminating his services in the process of so called re-organization.
As the termination of the respondent employment is claimed to be under Section 4 of the Act. It will be proper to examine its provisions for proper understanding. It reads as under:
"Termination of employment.--The services of a newspapers employee shall not be terminated by a newspaper establishment without good cause shown, through a notice, in writing, of such termination--
(a) .............................
(b) .............................
(c) ............................."
A look in the above provisions gives out that the Section is barring provisions restraining the termination of an employee without communicating good cause through a written notice. Thus, emphasize is on good cause without which the service of an employee/workman cannot be terminated.
"THROUGH OCS
No. MAZ/2001/2 03 February 2001
Mr. Abdul Rehman Baloch, D-17, Block `L', North Nazimabad, Karachi.
Dear Mr. Baloch, Reference your letter of 27.1.2001 and further to our letter No. MAZ/2001/dated 1.2.2001, we have go advise you as under:
That as you are aware the newspaper office was attacked and burnt by an unruly mob on 18th May 2000 and the newsroom which was located on the first floor of the office building was totally gutted. The new newsroom has been built on the third floor of the building and is Alhamdolillah equipped with the `state of the art' technology. The introduction of new technology has necessitated a total re-organization of the scheme of work in the newsroom with different work flows. As a result, the internet edition of the newspaper is now the main work engine of the newsroom and drives the print editions.
That as a consequence of the aforesaid re-organization, we do not have any assignment/work for you and are therefore constrained to terminate your employment under Section 4 of the Newspaper Employees (Conditions of Service) Act 1973, which, we hereby do with immediate effect.
Additionally and without prejudice to the foregoing in view of your letter dated 23.5.2000 addressed to functionaries of the federal government and other circumstances, it is difficult for the management to have confidence in you and it is imprudent to continue with your services.
A cheque fore Rs. 1,11,677/- (Rupees one hundred eleventh thousand six hundred and seventy seven only) as per statement attached, representing your three months wages in lieu of 3 months notice of termination of employment and your gratuity for the period while you were in service is enclosed herewith. A copy of the tax paid challan will be sent to you in due course.
Yours Sincerely
Sd/-
WAMIQ A SUBERI
(Chief Executive)
Encl. Cheque No. 9537118 dated 3.2.2001 Drawn on MCB, Record House Branch For Rs. 111,677/-"
Munute reading of the notice specially its Paragraph Nos. 1 and 2 lead to the conclusion that it was the re-organization only which was mentioned in Paragraph No. 1 as cause of the termination. Para No. 2 speaks of the termination of the service with immediate effect. Paragraph No. 3 comes later as an expression that it was also difficult for the management to have confidence in the respondent.
As regards the reorganization mentioned in Para No. 1 of the notice as cause of termination it can be said, at the very out set that reorganization of the establishment of Business Recorder is not visible anywhere. In effect the said single termination is the entire so called reorganization of the establishment. Re-organization is not a knee jerk reaction. It has to be fully justified and then its process is to be carried essentially under just and fair scheme. The case of UBL vs. Shamim Ahmed Khan reported in PLD 1999 SC 990 referred to by the appellant's learned Advocate in support of his contention that re-organization is valid cause for termination was also the case of Organization with full justification and the retrenchment/down sizing under a proper scheme. In present case the termination of respondent's service was under the colour of re-organization without any scheme or formula. It was targeted termination without good cause as required by the law.
The argument of Mr. Bajwa that respondent was not acquainted with new equipments does not carry any weight. It is not only invalid in the circumstances but after thought too. Nothing such was mentioned in the notice of termination.
Although, as mentioned above the letter allegedly sent by the respondent to the functionaries of the Federal Government was not the cause of the termination yet if it is examined then also the same cannot be treated as good cause. If the receipt of letter dated 27.5.2000 by the functionaries of Federal Government is accepted on the basis of evidence of Shafqat Abbas who produce the photostat copy of the letter then also it is not proved that the letter was signed and despatched by the respondent. After his denial for having signed and sent the letter those two facts had to be proved but were not proved. Although the signatures of the respondent were taken for comparing them with the signature appearing on the photostat of the letter produced by Shafqat Abbas from Ministry of Information but they were not sent to the expert. Nor the Court itself undertook the exercise of comparing the signatures. Obviously, the Labour Court did not consider it material as it was not the cause of the termination.
Moreover when so called reorganization is not recognized as good cause additional expression about the letter could not take the place of the cause. Additionally even if the letter is assumed to have been sent by the respondent then also it was not in capacity as an employee of the appellant. It was as the General Secretary, Karachi Union Journalists and as such is assumed to be a letter by the union.
As regards the awarding of the compensation to the respondent in lieu of reinstatement under Section 46(5) that contention has no force except academic interest. sub-section (5) itself speaks reinstatement as the first right of workmen whose services are termination wrongfully. This section is only enabling one authorizing the Labour Court to award the compensation in lieu of reinstatement. Since the Labour Court held the termination to be malicious and with the object to frustrate verdict and direction issued by the Hon'ble Supreme Court it was not required to award the compensation. In the circumstances, the decision of High Court of East Pakistan Dacca in the case of Abdul Rasheed Basitpuri (LLC 1967 DACCA 641) is not helpful to the appellant learned counsel. From one aspect this decision goes against the contention raised by Mr. Bajwa about the status of respondent that Sub-Editor is not workman. It was the case of a Sub-Editor daily Azad and Publication Ltd. which was decided first by the Labour Court of East Pakistan exercising it jurisdiction.
In the last I take the arguments on the question of maintainability of grievance petition before the Labour Court and applicability of Section 17 News Paper EMP (Conditions of Services) Act. Proviso to Section 17 referred by Mr. Bajwa reads as under:
"Section 17.......................................
"Provided that the provisions of this section shall not apply to a person who is employed as the editor of a newspaper."
The proviso speaks of the employment as Editor of a newspaper. Thus deciding factor for the applicability of Section 17 is the nature of the employment and not the nature of work being performed by the employee. Status of workman is given to the employees of the newspaper by the provisions of the Act. They do not get that status from the provisions of any other law including IRO, 1969 or its successor. Thus the contention relating to the question of status under Section 17 of the Act cannot be agreed to.
Moreover, the question about the duties being performed by the respondent is the question of fact and in the earlier round of the litigation upto to the Hon'ble Supreme Court. Therefore, the appellant cannot raise this plea in second round of the litigation. The plea was even not raised before the Labour Court, therefore, parties were not require to adduce evidence on that aspect nor the Court was supposed to record the finding. This contention is not to be entertained at this stage for that reason also. The respondent is, therefore, workman and the provisions of Ordinance XXIII 1969 and its successor Ordinance are applicable to him. Section 18 of the Act is clear in that respect.
In view of the above the termination of the respondent was malicious and outrageous. The order passed by the learned Labour Court declaring the termination as malicious does not call for interference and the appeal is liable to be dismissed. Consequently, the same is dismissed with costs.
(A.A.) Appeal dismissed.
PLJ 2006 Karachi 24
Present: Rehmat Hussain Jafferi, J.
MUNAWAR A. MALIK MANAGING DIRECTOR NOW CHAIRMAN, KARACHI and another--Applicants
versus
ABDUL SALAM--Respondent
Labour Revision Appln. No. 22 of 2005, decided on 23.9.2005.
Industrial Relations Ordinance, 2002 (XLI of 2002)--
----Ss. 48(3) & 80(2)(b)--Industrial Relations Ord., 1969 (Repealed), S. 32(1A) & 83(3-A) read with Ss. 54 and 55--Revision application--Maintainability--Administrative order--Pending proceeding--An industrial dispute was referred to Labour Court which passed order dated 17.8.2002--Hence revision application was filed before the Sindh Labour Appellate Tribunal while stay order proceedings were operating when IRO, 1969 was repealed new IRO 2002--Appellate Tribunal abolished and all appeals, revisions and other matters pending before said tribunal were sent to High Court for proceedings in accordance with law--High Court retained appeals but returned all applications and other matter, through an administrative order--Question raised as to whether revisions applications were rightly returned or there are deemed to be pending before High Court--S. 80(2)(d) of Ordinance, 2002 speaks of transfer of appeals as if proceedings are commenced under repealed Ordinance then the same are deemed to have been commenced under IRO, 2002--Once proceedings have commenced then unless they are terminated or lapsed, they remained pending from where they commenced or deem to have commenced. [Pp. 26, 28 & 29] A, B & C
Industrial Relations Ordinance, 2002 (XLI of 2002)--
----S. 80(2)(b)--Transferring of application--Status--Lapse and termination of proceedings--Under repealed Ordinance and New Ordinance no right to file revision application has been provided but suo moto powers available with Labour Appellate Tribunal and High Court respectively--Parties have to do nothing in the matter except to point out irregularity, propriety and illegality in proceedings--Such powers can however, be exercised by higher forum even on information received from any source including parties. [P. 30] D & E
Words & Phrases--
----Definition--American heritage Talking Dictionary--It is termination of a right or privilege through disuse, neglect or death--A person to whom a gift is made by will, dies before testator, the gift lapses, (fails to take effect)--Defined by harms. [P. 31] G & H
Statutes--
----Repeal--Provision--Enactments--When statutes are repealed, no provision has been made for transferring the cases pending before the Court under repealed enactments to the Courts created under new enactments--New Courts created under new enactments assume the jurisdiction of the pending cases and try the same in accordance with law. [P. 30] F
Temporary Statute--
----Defined--A temporary statute is one which expires or lapses by afflux of time or on fulfillment of certain condition--As such the proceedings taken under repealed law would neither lapse nor ipso facto terminate but would deemed to be pending before the Higher forum. [P. 32] J
Mr. Mehmood Abdul Ghani, Advocate for Applicants.
Mr. M.A.K. Azmati, Advocate for Respondent.
Date of hearing: 23.9.2005.
Judgment
This is a revision application under Section 48(3) of Industrial Relations Ordinance, 2002 to examine the correctness, legality and propriety of order dated 16.4.2005 passed by the Labour Court No. II Karachi.
An industrial dispute under Section 32(1-A) of I.R.O., 1969 between Hashmi Can Company Ltd. and respondent was referred to Labour Court No. II Karachi. The respondent for the purpose of acceptance of certain demands of the Union filed a Complaint No. 1/99 under Sections 54 and 55 of I.R.O., 1969 before the said Court. The Labour Court passed an order dated 17.8.2002. A Revision Application No. K-167/01 was filed before the Sindh Labour Appellate Tribunal Karachi under Section 38(3-A) of I.R.O., 1969. The Tribunal called the record and proceedings of the case. The operation of the said order was suspended on 29.9.2001. While the order of stay of the proceedings of the Labour Court was operating when I.R.O., 1969 was repealed with the result that Sindh Labour Appellate Tribunal was abolished. In place of repealed Ordinance new statute in the name of Industrial Relations Ordinance, 2002 was promulgated. Thereafter all the appeals, revisions and other matters pending before the then Sindh Labour Appellate Tribunal were sent to the High Court for proceedings in accordance with law. However the High Court retained the appeals but returned all the revisions applications and other matters which are presently lying the office of Labour Court No. 1 being custodian of the cases of Sindh Labour Appellate Tribunal Karachi. In this background the Labour Court No. II Karachi started the proceedings which were already stayed by the then Sindh Labour Appellate Tribunal at Karachi and passed the impugned order hence the present revision application.
I have heard the parties' advocates, Mr. Agha Zafir State Council who has represented the Advocate-General Sindh, perused the record of this case and law involved in the matter very carefully. Mr. Agha adopted the arguments of the learned advocate for the applicant.
The learned advocate for the applicant has stated that the revisions applications sent to this Court by Sindh Labour Appellate Tribunal Karachi have been wrongly returned by the High Court as they have been saved under Section 80(2)(b) of I.R.O., 2002; that Sections 48(3) of I.R.O., 2002 and section 38(3-A) of I.R.O., 1969 are same therefore the revisions applications are deemed to be pending before this Court; that order of the Honourable Chief Justice sending the R&Ps back to the Labour Court No. 1 was an administrative order therefore judicial order is required to be passed in this matter. He has relied upon 2004 PLC 400.
On the other hand the learned advocate for the respondent has argued that under Section 80(2)(d) of I.R.O., 2002 only appeals were required to be transferred to this Court after the abolition of Sindh Labour Appellate Tribunal; that there is no provision in the I.R.O., 2002 whereby the revisions applications are required to be transferred to this Court therefore the revisions applications stand lapsed hence the proceedings before the Labour Court are in accordance with law.
It is pertinent to point out that after the repeal of I.R.O., 1969 and promulgation of I.R.O., 2002 the appeals, revisions and other cases were sent to this Court for proceedings in accordance with law. The breakup of the matters is as under:--
(i) Appeals pertain to Karachi 320 (ii) Revisions pertain to Karachi 132
(i) Appeals pertain to Hyderabad 39 (ii) Revisions pertain to Hyderabad 17
(i) Appeals pertain to Sukkur 7 (ii) Revisions pertain to Sukkur 4
(i) Appeals pertain to Larkana 2 (ii) Revisions pertain to Larkana 1
Complaints filed with the Labour Appellate Tribunal pertain to Karachi 6
The office after receiving the said matters submitted a note on the recommendation and suggestions of Mr. Shahid A. Bajwa, Advocate to the Honourable Chief Justice. The office note and suggestion concerning revision applications are as under:
"It is further stated that under Section 80(2)(b) of the I.R.O., 2002, only appeals pending before the Sindh Labour Appellate Tribunal stand transferred but the Tribunal has also sent revisions applications and other cases when under the provisions of I.R.O., 2002, revisions have not been ordered to be transferred to this Court, therefore, in law revisions stand lapsed. It is proposed to seek appropriate order from the concerned bench of the commission.
Revisions applications which have been transferred to this Court without having any order or provisions in the I.R.O., 2002 the same may be returned back to the custodian of the record of Sindh Labour Appellate Tribunal i.e. Presiding Officer, Sindh Labour Court No. 1 Karachi being custodian of cases of Sindh Labour Appellate Tribunal Karachi."
The Hon. Chief Justice accepted the above proposal through an administrative order on 28.4.2005. In pursuance of the said order all the revisions applications were sent to Presiding Officer, Sindh Labour Court No. 1 Karachi. Now the question arises as to whether the revisions applications have been rightly returned or they are deemed to be pending before this Court.
Admittedly there is no provision in I.R.O., 2002 about the transfer of revisions applications from Sindh Labour Appellate Tribunal to High Court. The Section 80(2)(d) of I.R.O., 2002 only speaks of transfer of appeals from the Sindh Labour Appellate Tribunal to High Court. In this background the learned advocate for the applicant has stated that the proceedings of revisions applications have been saved under Section 80(2)(b) of I.R.O., 2002 whereas office note of this Court and the advocate for the respondent has argued that after the abolition of Sindh Labour Appellate Tribunal the revisions applications stand lapsed. In order to arrive at the proper conclusion it will be profitable to reproduce Section 80(2)(b) of I.R.O., 2002 that reads as under:
"80. Repeal and savings.--(1)
(2) Notwithstanding the repeal of Industrial Relations Ordinance, 1969 (XXIII of 1969), hereinafter to be called the repealed of Ordinance, and without prejudice to the provisions of Sections 6 and 24 of General Clauses Act, 1897 (X of 1897):--
(a)
(b) anything done, the rules made, notification or order issued, officer appointed, Court constituted, notices given, proceedings commenced or other actions taken under the repealed Ordinance shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may be, under the corresponding provisions of this Ordinance; and"
From the above provision of law it is clear firstly that if under the repealed Ordinance I.R.O., 1969 anything done, rules made, notifications or orders issued, officers appointed, Court constituted, notices given, proceedings commenced and other actions taken then they are saved. Secondly above mentioned acts done, rules made notifications or orders issued, officers appointed, Court constituted, notices given, proceedings commenced or taken are deemed to have been done under the corresponding provisions of I.R.O., 2002.
Thus the proceedings commenced and Court constituted under I.R.O., 1969 have been saved and they are deemed to have been commenced and constituted under the corresponding provisions of I.R.O., 2002. It will be noticed that Sindh Labour Appellate Tribunal was created under Section 38 of I.R.O., 1969 but the Constitution of Labour Appellate Tribunal has not been saved under the above provisions of law. In place of Tribunal the appeals are required to be filed before the High Court under Section 48(1) and High Court has been given revisional powers to be taken on its own motion under Section 48(3) of I.R.O., 2002. As the Constitution of Labour Appellate Tribunal has not been saved under I.R.O., 2002 therefore the said Tribunal stands abolished. Consequently appointment of the Chairman Labour Appellate Tribunal also stands terminated. A Reference is invited to Municipal Board, Kanpur v. Biharilal, AIR 1960 All. 546 (F.B.). Thus there is neither Labour Appellate Tribunal nor its Chairman. As such there is no such Tribunal/office where the cases can be kept or remained pending.
It is perintent to point out that Labour Appellate Tribunal had revisional powers under Section 38(3-A), I.R.O., 1969. The revisions applications were pending under the said provisions of law. Similar provisions are available under Section 48(3) of I.R.O., 2002 under which High Court has been given revisional powers. Under Section 80(2)(b) of I.R.O., 2002 if proceedings are commenced under the repealed Ordinance then the same are deemed to have been commenced under I.R.O., 2002. The revisions applications were commenced under Section 38(3-A) of I.R.O., 1969 therefore by virtue of Section 80(2)(b) of I.R.O., 2002 they are deemed to have been commenced under Section 48(3) of I.R.O., 2002. Once the proceedings have commenced then unless they are terminated or lapsed, they remain pending before the forum where they commenced or deem to have commenced. As the pending proceedings before the Labour Appellate Tribunal are deemed to have commenced under the relevant provision i.e. Section 48(3) of I.R.O., 2002 therefore by virtue of Section 80(2)(b) of I.R.O., 2002 they stand commenced before the High Court as such they are deemed to be pending before the High Court.
Next question arises as to whether the said proceedings lapsed or terminated in the absence of provision in the I.R.O., 2002 about transferring the revisions applications pending before the Sindh Labour Appellate Tribunal. It will be noticed that revisional powers are supervisory powers of superior authority over the inferior authority and officers. Reference is invited to Riasat Ali v. Muhammad Jafar Khan, 1991 SCMR 496. Under the repealed Ordinance and New Ordinance the parties have not been provided any right to file revision application but suo moto powers were/are given to the Labour Appellate Tribunal and High Court respectively. Such powers can be exercised on information received from any source including the parties. A Reference is invited to a case of Norwich Union F.I.S. Ltd. v. Muhammad Javed Iqbal, 1986 SCMR 1071. After receiving such information if the Court finds that proceedings are required to be initiated and admitted the proceedings, then the proceedings are between the higher forum and lower forum in which the parties have nothing to do in the matter except to point out irregularity, propriety and illegality in the proceedings or order of the lower forum. As such no vested rights of the parties are involved in initiating such proceedings therefore the question of extinguishing the said rights of the parties in such proceedings does not arise.
It will be noticed that in several other statutes when the statutes are repealed no provision has been made for transferring the cases pending before the Court under repealed enactments to the Courts created under new enactments. Nevertheless the new Courts created under new enactments assume the jurisdiction of the said cases and try the same in accordance with law. For example when Banking Tribunal Ordinance, 1984 was repealed through Banking Companies (Recovery of loans, Advances, Credits and Finances) Act, 1997 (XV of 1997) no provision was made for transferring the cases pending before the Banking Tribunals created under the repealed Ordinance to the Courts created under the Act XV of 1997. It will be further noticed that through the Act XV of 1997 the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, 1997 (XXV of 1997) was also repealed. However under Section 27 of the Act XV of 1997 all criminal proceedings pending before the Special Courts constituted under Ordinance XXV of 1997 were transferred to the newly created Banking Courts under the Act XV of 1997. But no provision was made for transferring the Banking cases of civil jurisdiction from the Courts of repealed Ordinance XXV of 1997 to the Courts created under Act XV of 1997. Banking cases of civil jurisdiction under both the repealed Ordinances were tried by the newly created Banking Courts created under the Act XV of 1997 by assuming the jurisdiction of said cases. It will be further noticed that Act XV of 1997 was repealed by the Financial Institutions (Recovery of Finances) Ordinance, 2001 but no provision has been made for transferring the cases pending before the Banking Courts of Act (XV of 1997) to the Courts created under the new Ordinance of 2001. Nevertheless the Courts created under Ordinance, 2001 assumed the jurisdiction of the cases pending before the Banking Courts created under Act (XV of 1997) and started trying the cases. The said cases are still being tried by the newly created Courts of Ordinance 2001.
From the above examples it is clear that it is not always the scheme of the Legislature to make a specific provision for transferring all the matters pending before the Courts created under the repealed enactments to the newly created Courts under new law but the intention of legislature is to be examined in the light of newly created enactment. It appears that the intention of the Legislature was not that the revisions applications pending before Sindh Labour Appellate Tribunal of the repealed Ordinance I.R.O., 1969 should lapse, because it was in the knowledge of the Legislature that I.R.O., 1969 was not a temporary statute.
Great emphasis has been made that revisions applications have lapsed therefore it is essential to examine the definition of "lapse". The word "lapse" has been defined in the American Heritage Talking Dictionary in the following manner:
"4. The termination of a right or privilege through disuse, neglect, or death."
"Lapse. Term used in English law. When a person to whom a gift is made by will, dies before the testator, the gift lapses, i.e. fails to take effect. But where a gift is to a child or other issue of testator, and the said issue, or the child has died leaving issue, the latter take the ancestor's legacy or devise. The word "lapse" also applies to the failure of the pattern of a church living to appoint on a vacancy. At the end of six months the right the presentation lapses and falls to the bishop.
The word appears also in connection with the British Rule in India, as the equivalent of escheat. If the ruler of native territory leaves no heir it has been held that this territory lapses to the Crown; and a number of native States have been acquired under this law. Childless Princes sought to avoid the lapse of adopting an heir, but the British authorities frequently refuse to recognize these adoptions. Lord Dalhousie is known for the extent to which he has made use of this doctrine of lapsed."
If the above rule is applied then after the abolition of Labour Appellate Tribunal another forum has been provided in the shape of High Court therefore there is no vacuum created on the abolition of Labour Appellate Tribunal. Thus, the proceedings pending before the Labour Appellate Tribunal would not lapse.
It is pertinent to point out that proceedings are lapsed or automatically terminated in the case of expiry of temporary statutes. A temporary statue is a statute which expires or lapses by efflux of time or on fulfillment of certain conditions. In such statutes general rule is that in the absence of special provisions to the contrary, the proceedings which are taken under it would ipso facto terminate on the expiry of the statute. A Reference is invited to a case of Muhammad Arif v. State, 1993 SCMR 1589. I.R.O., 1969 was not a temporary statute. It did not expire or lapse by efflux of time but it was repealed through another permanent statute I.R.O. 2002. As such the proceedings which were taken under I.R.O., 1969 would neither lapse nor ipso facto terminate but would deemed to be pending before the High Court. The above question is answered accordingly.
In the present case Revision Application No. K-167/2001 pending before the Labour Appellate Tribunal is deemed to be pending before this Court in which the operation of the impugned order of the revision application was suspended. As the revision application is pending before this Court therefore the said order would continue to operate. Thus the Labour Court was not justified in proceeding with the case and such proceedings are illegal therefore they are set aside.
Office is directed to call the above mentioned revision application from the concerned Court and place the same before this Court for further proceedings.
In the light of what has been discussed above the revision application is allowed in the above terms.
(Z.A.S.) Application allowed.
PLJ 2006 Karachi 33 (DB)
Present: Syed Zawwar Hussain Jaffery and Maqbool Baqar, JJ.
ABDUL SHAFIQUE and another--Appellants
versus
AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN, NOW ZARAI TARAQIATI BANK LTD. and 3 others--Respondents
F.A No. 17 of 2005, CMA 584/2005, decided on 31.1.2006.
Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 22--Appeal against order of Banking Court--Held: Record showed that appellants, despite several extentions, of time, failed to deposit even 10% down payment of the amount which they were required to pay in terms of State Bank Circular No. 29--Impugned order was maintained. [P. 34] A
Ms. Soofia Saeed, Advocate for Appellants.
Syed Zaki Muhammad, Advocate for Respondents Nos. 2 & 3.
Mr. Sanaullah Noor Ghouri, Advocate for Respondent No. 1.
Date of hearing : 15.4.2005.
Order
Maqbool Baqar, J.--The Appellants through the above appeal had challenged the order dated 4.4.2005, whereby the learned Banking Court No. III at Karachi, dismissed the Appellant No. 2's application dated 9.12.2004, for allowing her to pay off to the respondent Bank its dues towards appellants as determined by the State Bank Committee, in terms of State Bank Circular No. 29, and to make the down payment in terms thereof in the third week of January, 2005 and confirmed the sale of the mortgaged properties in the execution proceedings.
In brief the background of the case is that a suit filed by the respondent Bank against the appellants for recovery of its dues in respect of finance granted by the respondent Bank to the appellants was decreed by Banking Court No. III vide judgment dated 24.8.1998. For enforcement of the above decree the respondent Bank filed Execution Application
No. 15/2000. In the meanwhile the appellants offered to pay to the respondent Bank its dues in terms of BPD Circular 29 and by letter dated 25.5.2004 the State Bank Committee for resolution of cases under the aforesaid scheme conveyed to Appellant No. 2 its decision to the effect that the appellants may settle their outstanding liabilities towards the respondent Bank by making payment of Rs. 3,006,200/- out of which 10% was to be paid to the time of signing of the Settlement Agreement and the balance 90% was payable in 12 equal installments over a period of 2 years. In pursuance of the above, the respondent Bank, by letter dated 25.6.2004 requested the appellants to make the down payment before 10.7.2004 and sign the agreement. However, admittedly the appellants failed to adhere to the above schedule and could not even pay 10% towards down payment. In the meanwhile the Banking Court ordered sale of the mortgaged property in the above Execution Application.
By letter dated 26.8.2004 the State Bank's Committee, upon request made by the appellants for extension of time for depositing down payment of 10% up to 5.8.2004, requested the respondent Bank to advise the borrower to make the down payment within next 15 days, failing which settlement package may be withdrawn. In pursuance of the above letter the respondent Bank vide letter dated 11.10.2004 advised the appellants to deposit the token money before 26th October 2004 as a last chance or else the bank shall proceed with the execution of the decree before the Banking Court. However, the appellants yet again failed to pay any amount and through letter dated 21.10.2004 requested the Governor, State Bank of Pakistan to waive the amount of mark-up to enable her to pay back, to the respondent Bank, only the principal amount of Rs. 18,66,000/-, which amount she will somehow arrange, and pay to the bank. The waiver was however declined by the State Bank vide letter dated 29.10.2004.
It appears that the appellants again approached the State Bank Committee, who vide letter dated 18.12.2004, required the appellants to adhere to the decision of the committee conveyed to them through the aforenoted letter dated 25.5.2004. However, the appellants still failed to make any payment and on 19.12.2004 Appellant No. 2 filed an application before the Banking Court No. III, wherein she submitted that it was due to the circumstances beyond her control that the outstanding dues towards the respondent Bank could be paid and prayed that she may be allowed to pay such amount as per schedule decided by the State Bank of Pakistan and offered to make the initial payment in the third week of January 2005.
From the above, it is clear that the appellants despite several extension of time failed to deposit even the 10% down payment of the amount that they were required to pay in terms of State Bank Circular No. 29. The Appellant No. 2's application in the circumstances was rightly dismissed by the Banking Court No. III through the impugned order.
For the foregoing reasons, we found no merits in the appeal and dismissed the same along with the listed application by short ordered dated 16.1.2006.
(Javed Rasool) Appeal dismissed.
PLJ 2006 Karachi 35
Present: Faisal Arab, J.
Dr. AMJAD WAHEED--Plaintiff
versus
NATIONAL INVESTMENT TRUST LIMITED through Chairman/Chief Executive--Defendant
Suit No. 198 of 2003 & C.M.A. No. 8742 of 2004, decided on 23.10.2005.
(i) Service Tribunals Act, 1973 (LXX of 1973)--
----S. 2-A--Civil Procedure Code (V of 1908), O. VII, Rr. 2 & 11--Constitution of Pakistan 1973, Art. 212--Rejection of plaint--Suit for recovery of balance amount claimed as unpaid bonus--Defendant had moved application for rejection of plaint--High Court had no jurisdiction to try the suit of plaintiff being a civil servant--Contention--Claim of plaintiff for bonus had arisen from terms and conditions of his service--Plaintiff would be deemed to be a civil servant under provisions of S. 2-A of Service Tribunal Act, 1973 and suit filed by him was barred under Art. 212 of Constitution--Admittedly, plaintiff's claim according to S. 2-A of said Act was not applicable to the case because he was employed for a period of three years only which term had expired before filing of suit and could not be treated as a civil servant--According to definition of "civil servant", `even a person who had been a civil servant in the past, was also to be treated as "civil servant"--Plaintiff's remedy laid before Service Tribunal, being a Civil Servant--Application for rejection of plaint was allowed and plaint was rejected by defendant. [Pp. 36, 37, 38 & 39] A, C & D
(ii) Service Tribunals Act, 1973 (LXX of 1973)--
----S. 2-A--Constitution of Pakistan (1973), Art. 212--Preamble--Jurisdiction of service tribunal--Object of legislation--Exclusive forum for dealing with matters arising out of terms and conditions of a civil servant was evident from specific provision that had been made in the form of Art., 212 of Constitution--From preamble of Service Tribunals Act, 1973, it was quite evident that in matters of terms and conditions of service of a civil servant, Tribunal would exercise exclusive jurisdiction--Civil Servants grievances arising from his terms and conditions of service, be it statutory were to be brought before Service Tribunal for adjudication--Plaint rejected. [Pp. 36 & 37] B
Mr. Yousuf Ali Saeed, Advocate for Plaintiff.
Mr. Kazim Hasan, Advocate for Defendant.
Date of hearing : 14.11.2005.
Order
The plaintiff was employed for three years as head of Defendant's Fund Management Division under a contract dated 24.4.1998. Under the said contract the plaintiff was entitled to Performance Bonus for the years 1999 and 2000, which was to be calculated at the close of every financial year as equivalent to 10% of basic annual salary for every 1% increase in the value of funds. The plaintiff calculated the amount of Bonus at Rs. 6,911,000 whereas the Defendant worked out Plaintiff's entitlement at Rs. 3,277,627. This led to filing of the present suit by the Plaintiff for recovery of balance of Rs. 3,633,373 claimed by him as unpaid Bonus.
The defendant moved application CMA No. 8742 of 2004 under Order VII, Rule 11 CPC seeking rejection of the plaint on the ground that the plaintiff being a civil servant, this Court has no jurisdiction to try this suit.
It is contended by the learned counsel for the defendant that plaintiff's claim for Bonus which the plaintiff claims to have remained unpaid arises from the terms and condition of his service. The learned counsel therefore, without touching upon the merits of plaintiff's claims, contended that under the provisions of Section 2-A of the Service Tribunals Act 1973, the plaintiff is deemed to be a civil servant and as such the present suit is barred under Article 212 of the Constitution of Pakistan. In support of his contention, the learned counsel for the defendant relied upon judgment of the Supreme Court in the case of National Investment Trust Ltd. v. Sami Ullah reported as 2001 SCMR 116 wherein the plea of the defendant that its employees are not civil servants was rejected and the employees of defendant were declared to be civil servants by virtue of deeming provision of Section 2-A of the Service Tribunals Act, 1973.
The judiciary consists of various types of Courts, with the highest at the apex as ultimate Court of Appeal. Outside this pyramid there are other Special Tribunals. The functions of each Court or Tribunal are defined under the Constitution or the laws made under the Constitution. The Constitution or the laws, as the case may be, also specify the subjects with which these Courts or Tribunals are to deal with. Under such multiple system, limitations are inherent so that one Court or Tribunal may not encroach upon the defined field or subject of the other. In numerous judicial pronouncements it has been time and again held that functions of each Court or Tribunal are circumscribed within the four corners of their defined jurisdiction.
The object of the legislature that there has to be exclusive forum for dealing with the matters arising out of terms and conditions of service of a civil servant is evident from the specific provision that has been made in the Constitution in the form of Article 212 of the Constitution. Its relevant portions, for the purposes of the present case, are as follows:--
212.--(1) Notwithstanding anything herein before contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters;
(b) ... ... ...
(d) ... ... ...
(2) Notwithstanding anything herein before contained, whereby any Administrative Court or Tribunal is established under Clause (1), no other Court shall grant and injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal other than an appeal pending before the Supreme Court, shall abate on such establishment.
"Whereas, it is expedient to provide for the establishment of Administrative Tribunals, to be called Service Tribunals, to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, and for matters connected therewith or ancillary there to......."
From the above discussion it is evident that a Civil Servant's grievances arising from his terms and conditions of Service, be it statutory or contractual, are to be brought before the Service Tribunal for adjudication.
The plaintiff's counsel though admitted that plaintiff's claim arises from his terms and conditions of service he nevertheless contented that Section 2-A of the Service Tribunals Act, 1973 has no application to plaintiff's case as he is no more in the employ of the defendant. He submitted that the plaintiff was employed for a period of three years only which term expired before filing of the present suit and therefore the plaintiff cannot be treated as a civil servant.
On the other hand the defendant's counsel referred to the definition of "Civil Servant" as provided in Section 2(a) of The Service Tribunals Act, 1973 and submitted that even a person who has been a civil servant in the past is also to be treated as "Civil Servant". He is absolutely right as the words "has been" in the definition, which also appear in Article 212 (1) (a) of the Constitution, clearly mean that a person who though no more a civil servant but has been one in some point of time, is also to be regarded as civil servant for the purposes of the application of the Service Tribunals Act, 1973.
The plaintiff's counsel next argued that no order has been passed by the defendant which could have been taken to the Service Tribunal for decision. The word "order" appearing in Section 4 of the Service Tribunals Act has wider connotation. It includes any communication which could adversely affect a civil servant. If such a wide meaning to the word "order" is not given, then unless a communication is titled as "order" a civil servant would find himself disabled from challenging the same which he considers to have infringed upon his rights secured under terms and conditions of his service. In the present case the communication of Board's decision vide defendant's letter dated 29.10.2001 is sufficient to term it as an "order" as contemplated under Section 4 of the Service Tribunals Act.
The plaintiff's counsel then argued that under the provisions of Section 4 of the Service Tribunals Act, 1973, there has to be a "final order" passed by the departmental authority regarding any of the terms and conditions of service, which alone would have entitled him to invoke the jurisdiction of the Service Tribunal and as final decision was yet to be taken in plaintiff's case, he was disabled from invoking the jurisdiction of Service Tribunal. The plaintiff's counsel therefore argued that the plaintiff having left with no other alternative had to file the present suit for recovery of unpaid Bonus. In support of his contention that there exists no final order which the plaintiff could have challenged before the Service Tribunal, he referred to defendant's letter dated 1.10.2002 filed as annexure "I" to the plaint wherein in response to plaintiff's legal notice dated 18.9.2002, the defendant has stated "We acknowledge receipt of your letter dated September, 2002, contents of which are being examined by us. We shall soon be in a position to give you detailed reply". While referring to annexure "I", the plaintiff's counsel explained that as the plaintiff did not receive any reply as promised by the defendant, no final order existed which could be challenged before the Service Tribunal.
The defendant's counsel responded to this argument by referring to defendant's letter dated 29.10.2001 filed as annexure "B" to the plaint through which the plaintiff was informed of the decision of defendant's Board approving plaintiff's entitlement to Bonus with a precise amount of Rs. 3,277,627. The defendant's counsel stated that letter dated 29.10.2001 was final decision determining the quantum of plaintiff's entitlement of Bonus and therefore it is to be treated as final order. He also referred to annexure "D" and "F" filed with the plaint in which the defendant reaffirmed the quantum of Bonus at Rs. 3277,6727 based on the decision of its Board dated 29.10.2001.
No doubt vide letter dated 1.10.2002 defendant promised to respond to plaintiff's legal notice dated 18.9.2002, which it never did, but this does not mean that Board's decision dated 29.10.2001, communicated by the defendant to the plaintiff, in any way, is to be considered as provisional. All that the defendant did through letter dated 1.10.2002 that it promised to respond to legal notice but choose not to. Failure to respond to a legal notice may not have any impact on the merits of ones stand, but this certainly does not wipe out the existence of the defendant's decision, right or wrong, communicated to the plaintiff in absolute terms vide its letter dated 29.10.2001. The plaintiff's reliance on defendant's letter dated 1.10.2002 in order to demonstrate that defendant was yet to take decision on plaintiff's entitlement to Bonus is therefore misplaced.
The plaintiff's Advocate has cited the case of Safdar Hussain v. Conservator of Forest reported in 2002 PLC (C.S.) 1527. In the said judgment it was held "Any matter that is to be challenged by way of an appeal has to have a final order passed. If no such final order exists and merely an enactment or a general act and its vires are challenged then this Court would have jurisdiction". In the present case there existed a complete and final order in the form of decision of defendant's Board communicated to the plaintiff vide letter dated 29.10.2001 and therefore the said case has no application to the fact of the present case. The said case also does not apply for the reason that in the cited case it was held that where no final order exists but where vires of Rules or Regulations are challenged then jurisdiction under Article 199 can be exercised by the High Court. The High Court therefore exercised its extraordinary jurisdiction under Article 199 for the reason that vires of Rules and Regulations of service were under challenge in the said case which is not the case in the present suit. The cited case is therefore clearly distinguishable.
It was lastly contented by the counsel for the plaintiff that in the present case even the evidence of the plaintiff has been recorded and it is too late in the day to consider defendant's application under Order VII, Rule 11 C.P.C. Simple answer to this is that it is never too late to bury a stillborn child. No useful purpose would be served by further putting the parties to the trouble or regular trial in order to come to the inescapable conclusion that this Court has no jurisdiction to try this suit.
From the above discussion it is evident that plaintiff is a civil servant as defined under Section 2-A of the Service Tribunals Act, 1973 and his remedy lays before the Service Tribunal. In the circumstances the CMA No. 8742 of 2004 filed under Order VII, Rule 11 C.P.C. is allowed and the plaint if rejected as the suit is barred under Article 212 of the Constitution. Costs shall follow the event.
(Aliya Sattar Chaudhry) Plaint rejected.
PLJ 2006 Karachi 40
Present: Faisal Arab, J.
TAHIR HASSAN CHOUDHERY--Plaintiff
versus
SHAHID AHMED KHAN--Defendant
Suit No. 520 of 2005, CMA No. 5059 of 2005, decided on 21.12.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, R. 2--Summary suit was filed for recovery of the amount of four dishonoured cheques issued by the defendant to the plaintiff--In the month of May and June 2003, plaintiff paid specified amount to the defendant as an investment for a monthly return of specified amount only as profit on the invested amount--Such investment was made for eleven months commencing from August 2003 and ending in June 2004--Principal amount only as to he returned at the end of contract period i.e. June 2004--Plaintiff received monthly profit uptill March 2004--Thereafter four cheques issued by defendant to plaintiff were dishonoured upon presentation to bank on account of insufficiency of funds--Defendant in his lease to defend application admitted plaintiffs, invest of specific amount only with the defendant and also admitted that a return of amount per month was payable by him for eleven months commencing from August 2003 to June 2004, however he claims that monthly payments were not profit but were rent of the machines purchased from the amount invested by the plaintiff with the defendant. [P. 41] A & B
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O.XXXVII, R. 2--Defendant's leave to defend application has been dismissed, resultantly the contents of the plaint are deemed to be admitted and such suit is decreed with costs for the sum of specified amount with interest at the rate of 8% per annum payable from the date of dishonour of the cheques till the recovery of the entire decretal amount. [P. 44] C
Raja Muhammad Basharat, Advocate for Plaintiff.
Mr. Ahmed Hassan Rana, Advocate for Defendant.
Date of hearing : 9.12.2005.
Order
This is a summary suit filed under Order XXXVII, Rule 2 CPC for recovery of the amount of four dishonoured cheques issued by the defendant to the plaintiff.
The case of the plaintiff is that in May and June 2003, he paid Rs. 5, 700,000/- to the defendant as an investment for a monthly return of Rs. 1,25,250/- as profit on the invested amount. This investment was made for eleven months commencing from August 2003 and ending in June 2004. The principal amount of Rs. 5,700,000/- was to be returned at the end of contract period i.e. June 2004. The plaintiff received monthly profit uptill March 2004. Thereafter following four cheques issued by the defendant to the plaintiff were dishonored upon presentation to bank on account of insufficiency of funds:
(i) Cheque No. 976865 dated 30.4.2004 Rs. 125,250/-
(ii) Cheque No. 976866 dated 30.5.2004 Rs. 125,250/-
(iii) Cheque No. 976867 dated 30.6.2004 Rs. 5,825,250/-
(iv) Cheque No. 976875 dated 30.4.2004 Rs. 19,250/-
Total amount of dishonoured cheques Rs. 6,095,000/-
The defendant in his leave to defendant application admits plaintiff's investment of Rs. 5,700,000/- with the defendant and also admits that a return of Rs. 125,250/- per month was payable by him for eleven months commencing from August 2003 to June 2004, however he claims that monthly payments were not profit but were rent of the machines purchased from the amount invested by the plaintiff with the defendant.
Now it is to be examined whether the defendant has made out a case for leave to defend the suit in his application.
In paragraph 6 of the affidavit filed in support of leave to defend application, the defendant states:
"....it was the plaintiff who expressed his consent to invest Rs. 5,700,000/- in the said business of the defendant by purchasing the machinery through the defendant and give the said machines to the defendant on rent."
".....the defendant purchased 4 embroidery machines and other assets from local market on behalf of the plaintiff, which was required to be used by the defendant and a rent of Rs. 125,250/- per month was agreed to be paid by the defendant to the plaintiff for a period of 11 months commencing from August 2003 to June 2004 and as per the agreement upon completion of 11 months, it was also agreed that the defendant shall purchase the machines and assets from the plaintiff against the principal amount subject to adjustment of payment of rent....."
From the above two excerpts of paragraph 6 of the defendant's affidavit it is evident that the business was solely of the defendant and that defendant admits that plaintiff invested a sum of Rs. 5,700,000/- in defendant's business. It is also an admitted position that a return of Rs. 125,250 per month was payable thereon by the defendant for eleven months i.e. from August 2003 to June 2003. It is also evident that at the end of investment period the plaintiff was to receive back his entire principal amount of Rs. 5,700,000/- invested with the defendant. Through the defendant maintains that the monthly return Rs. 125,250/- on the investment was rent for the machinery which was purchased from the invested amount.
The defendant in paragraphs 7 and 8 further proceeds to state as follows:
From paragraph 7
"....It is, however, correct to the effect that the cheques were issued, however it is pertinent to place it on record that such cheque was forcibly obtained by the plaintiff from the defendant for the payment of rent of Rs. 125,250/- for the month of March 2004, knowingly that the plaintiff is not in a position to pay the said amount, as such the same could not be encashed due to the aforesaid reasons, however later on the defendant arranged and made the payment of such cheque in cash but the plaintiff due to ulterior motive, did not return the cheque to the defendant........".
"....It is respectfully submitted that due to non-payment of rent, the plaintiff demanded from the defendant the entire principal amount as against the machines/assets. The plaintiff forcibly compelled to the defendant and obtained cheques from the defendant and retained the possession of the machines/assets with him with the intention that he will sell these machines/assets and pay off the principal amount to the plaintiff. Though the defendant tried to make arrangement for the payment however due to the fact that the machines of the plaintiff could not be sold, the cheques issued by the defendant were not honoured."
From the above two quotes of paragraphs 7 and 8 of defendant's affidavit it is evident that defendant made monthly payments uptill March 2004 and thereafter issued four posted dated cheques to the plaintiff which were dishonoured on presentation. Admittedly these dishonoured four cheques include Cheque No. 976867 dated 30.6.2004 for a sum of Rs. 5,825,250/-. This cheque for Rs. 5,825,250/- is obviously inclusive of the principal amount of Rs. 5,700,000/- and June 2004's monthly return of Rs. 125,250/-. Thus it becomes quite clear that through this cheque the principal amount was being returned irrespective of the two different versions setup by the parties in their respective pleadings as the common element in both the versions is payment of Rs. 125,250/- per month for eleven months as return on the invested amount of Rs. 5,700,000/-. Therefore with the issuance of dishonoured cheques, the contract of investment came to an end. The only thing, which was left in the matter was the clearance of the issued cheques as the clearance of cheques would have discharged the defendant from his obligation towards the plaintiff. This did not happen as the cheques were dishonoured, which led to filing of the present suit.
In view of the fact that defendant issued cheque also for the principal amount in June 2004 when the entire arrangement between the parties was to come to an end, all subsequent pleas raised in paragraph 9 and onwards seems to be setup to avoid the consequences of dishonouring of cheques.
The defendant has also taken the plea that the four cheques which were dishonoured were forcibly obtained from him by the plaintiff. This is nothing but an attempt to avoid consequences of default committed on cheques. Such a plea is of no legal consequence for the reason that firstly, what kind of force was used is not stated by the defendant. Secondly, no criminal complaint was lodged by the defendant from which one can ascertain the nature of force applied. There is always an element of force or pressure a creditor in similar circumstances applies which do not have the colour of criminal intent. This is done by making-nagging demands for return of one's money or creating physiological pressure by visiting several times at the debtor's residence or place of business and pressing for settlement of one's claim which is usual practice in our society. But all this is done only to seek recovery one's stuck up amount. Therefore nothing turns on the bald and vague plea of "forcibly obtained cheques". The cheques were issued not for an amount which was not payable to the plaintiff. These cheques were in fact for the amount which the defendant was contractually bound to pay to the plaintiff. In such circumstances also the plea of use of force looses its significance. The defendant who has himself not honored his contractual commitment, cannot now present himself as an innocent person on the basis of some vague allegation of use of force not even described in the application for leave to defend.
It does not appeal to reason that in the background of mistrust created on account of dishonour of four cheques parties would come to a new arrangement as set up in Paragraphs 9 and 10 of the leave to defendant application without putting down new terms in writing. Even the return of the dishonoured cheques was not sought from the plaintiff. In this background the plea of the defendant that he handed over the machines and other assets to the plaintiff and that too in absence of any acknowledgment of handing over of the machinery is nothing but an after thought just to claim regular trial. Such a plea also amounts to setting up an altogether a new and independent case. On such plea plaintiffs case cannot be defeated. The defendant having put an end to the entire transaction by issuing cheque for return of the principal amount, cannot seek leave in this suit to establish his own case of handing over his machinery to the plaintiff. The business was admittedly of the defendant and had the defendant's plea of plaintiff taking away the machinery to be bona fide, which is not, the defendant had the remedy to file separate suit against the plaintiff for wrongful takeover of defendant's machinery. The dishonoured cheques are still in the custody of the plaintiff which the defendant should have sought back from the plaintiff if the defendant was allowing the plaintiff to take over the custody of the machinery. This was the normal course of event in such a situation which did not happen. This leads to the inescapable conclusion that such a plea was raised only to prolong the trial in order to delay the consequence of not honouring the cheques.
Considering the facts in their totality, the defendant's pleas taken in Paragraphs 9 and 10 of the leave to defend application are not real. There exists no fair dispute to be tried and in absence of a serious conflict, grant of leave to the defendant on the basis of untenable pleas would only facilitate defendant to prolong the litigation. The whole object of Order 37 CPC is to curtail defendant's ordinary right to raise a defence and seek full trial of the suit. He has to first establish that he is entitled to grant of leave to defend the suit. Any defence, which is eyewash and intentionally fabricated just to avoid the consequence of a clear and admitted default committed on a negotiable instrument cannot be entertained in summary jurisdiction.
In view of the above discussion there exists no fair dispute to be tried. The defendant's leave to defend application is dismissed. Resultantly, the contents of the plaint are deemed to be admitted and this suit is decreed with costs for the sum of Rs. 6,095,000/- with interest at the rate of 8% per annum payable from the date of dishonour of the cheques till the recovery of the entire decretal amount.
(Rafaqat Ali Sohal) Leave to appeal refused.
PLJ 2006 Karachi 45
Present: Zia Pervaiz, J.
M/s SHELL PAKISTAN LIMITED through its LEGAL AFFAIRS ADVISOR & HOLDER OF POWER OF ATTORNEY--Appellant
versus
AURANGZAIB KHAN--Respondent
Labour Appeal No. 273 of 2003, heard on 31.5.2005.
Industrial Relation Ordinance, 1969 (XXIII of 1969)--
----S. 25(a)--Dismissal from service for non-prosecution--Re-instatement by Labour Court--Validity--Plea of appellant--Perusal of evidence of inquiry officer shows that respondent was afforded opportunity to defend charges levelled against him--However respondent opted to remain absent on the day of inquiry--Plea taken by respondent that at venue of enquiry, no body was present is only afterthought plea--Respondent also claims himself to be union activist--Question of not holding of inquiry proceedings against such activist would obviously would not go unnoticed in institution having strong organized trade union which is belied from record of present proceedings--Labour Court has failed to appreciate fact that respondent has also not been able to produce independent witness to corroborate his version--On other hand appellant has produced witnesses and no material contradiction is shown to be there and therefore, same cannot be ignored--Held: Case of misreading of evidence has been made out in addition to ignorance of material evidence on record--Appeal allowed. [Pp. 49 & 50] A, B, C & D
Mr. Mahmood Abdul Ghani, Advocate for Appellant.
Mr. Shahenshah Hussain, Advocate for Respondent.
Dates of hearing : 11.5.2005, 25.5.2005 and 31.5.2005.
Judgment
This appeal is directed against the order of the Sindh Labour Court No. V, Karachi, dated 26.5.2003 whereby the application under Section 25-A of the IRO 1969 (since repealed) was allowed and the appellant was directed to reinstate the respondent with all back benefits.
Brief facts of the case are that the respondent was employee of the appellant company. On 10th of April, 2002 when one Rana Atique Ahmed, Dispatch Officer was checking the dipping tank of Lorry No. LSA8589, where the respondent was on the duty, dip stick reading showed that the lorry was filled in excess to the extent of 33 m.m. Rana Atique Ahmed reported this fact to his senior Rasib Gul, Disptach Officer. The Dispatch officer personally checked lorry and found it filled in excess to the extent of 33 m.m. The excess furnace oil was retrieved from the tank lorry to the required dip level. This detection infuriated the respondent. He abused Rana Atique Ahmed. Then he pushed him, however, Rana Atique Ahmed maintained his equilibrium by taking help of railing of platform. The respondent then took up a steel rod and hit the same on the head of Rana Atique Ahmed, however, as Rana Atique was wearing safety helmet, he survived the injury. Rana Atique was provided medical check up, given medicines and advised rest. Rana Atique Ahmed immediately reported the matter in writing to Iftikhar Ali Khan, Dispatch Manager.
On 3.5.2002 the appellant with reference to the above incident, issued a show-cause notice to respondent calling upon him to show-cause within three days as to why disciplinary action may not be taken against him according to law. Brief reply to the said notice was submitted by the respondent on 8.5.2002. He denied the charges and requested for a copy of the complaint to prepare his defence. By a letter dated 10th of May, 2002 the appellant conveyed the explanation was to be unsatisfactory and Mr. Iftikharuddin. Transport Manager, OPT/1 was appointed as Inquiry Officer to hold inquiry on 17.5.2002 at 1000 hours at KMR Installation Conference Room. A copy of the complaint was also enclosed in pursuance of the request of the respondent. Respondent was required to appear and participate along with his witnesses. He was also offered an opportunity to nominate a co-worker for his assistance in inquiry. A copy of the report on the basis of which show-cause notice was issued was also enclosed along with the said letter. Respondent did not appear to participate in the inquiry proceedings. After holding the inquiry on 17.5.2002 where both the appellants witnesses were examined. The Inquiry Officer gave his finding on the same day. In the light of inquiry report, on 21.5.2002 the appellant issued the dismissal order to the respondent whereby respondent was informed that he was found guilty of the charge of misconduct levelled against him.
Being aggrieved with the dismissal, the respondent addressed a notice under provisions of 25-A of the IRO 1969 dated 22.6.2002 followed by an application under Section 25-A of the IRO before the Sindh Labour Court No. 5, who allowed the application and ordered to reinstate the respondent hence the appellant preferred this appeal.
Heard the learned counsel and perused the material available on record.
Before proceeding further Mr. Mahmood Abdul Ghani, learned counsel for the appellant, has led emphasis on three objections as to the maintainability of application, under Section 25-A of the IRO 1969. His first objection in this regard is that the matter did not relate to any industrial dispute or any right is secured or guaranteed to the respondent, therefore the application before the learned Labour Court did not lie. In support of this contention he has placed reliance on the cases of Board of Governors Aitchison College, Lahore v. Punjab Labour Appellate Tribunal (2001 SCMR 1928), Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCMR 2213).
It is clearly stipulated in clause (3) of the Standing Order that in case of any grievance, the workman may take action in accordance with provisions of Section 25-A of the IRO, 1969, as held by the Hon'ble Supreme Court in the case of M/s. Millat Tractors Limited v. Punjab Labour Court Nos. 3 & 2 others (PLJ 1996 SC 1184). The case law cited by the learned counsel are distinguishable from the present case. In the case of Trustees of the Port of Karachi (supra) the services of employees were governed by KPT Officers & Services (Efficiency & Discipline) Rules under the Karachi Port Trust Act, 1886. The remedy for appeal was provided under the Statute and therefore this case is distinguishable from the present case. The case of Board of Governors Aitchison College, Lahore (supra) pertains to employee of an Educational Institution not covered by the provisions of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 was held as not a member engaged in an industry or industrial establishment. These facts are entirely distinguishable from the present case as no such rules or exemption has been cited by the learned counsel that may exempt the present case from the scope of applicability of West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968. Accordingly, the objection has no force and is over ruled.
The second objection of the learned counsel as to the validity of Grievance Notice served upon the employer under provisions of Section 25-A of IRO on the ground that the Grievance Notice addressed to the Installation Manager, Shell Pakistan Limited, was not a valid notice in the light of cases of Zar Khan v. The Senior Vice President, Muslim Commercial Bank Ltd. (1984 PLC 89), Manager Atlas Autos Ltd. v. Mumtaz Ahmed (1990 PLC 115).
This objection is not tenable in view of the fact that the purpose of notice is to bring to the notice of the employer grievance of a person/employee. even shop Steward is competent to receive the Grievance Notice under the provisions of Section 25-A of the IRO 1969. The case law cited by the learned counsel are distinguishable as in the case of Zar Khan (supra) it was alleged that no grievance notice was sent and in the case of Manager, Atlas Auto Ltd. (supra) no grievance notice was served before commission. In the present case the notice was admittedly served upon the Installation Manager, thus the facts of the case cited by the learned counsel are entirely distinguishable from the present case. Under the circumstances notice has been property served.
His third objection is that during the pendency of proceedings, whereby the jurisdiction of NIRC was invoked by way of a petition pertaining to the same cause of action, the respondent had taken up a remedy available under the law. Having done so, he was barred from invoking the jurisdiction of the Labour Court. He has also cited case of Messrs Azad Papers Ltd. and another v. Province of Sindh (PLD 1974 Karachi 80) and National Engineering Services Pak. v. N.I.R.C. and others (2006 PLC 106).
It is a settled principle of law that where two remedies are available to a person he has option to choose either of the two remedies however once he exercises such option he could not resort to the other remedy. A pre-condition for application of such bar is that the two remedies to be available before forums having jurisdiction to adjudicate over the matter. A relief sought before a Tribunal not having jurisdiction cannot bar the remedy available before the competent Court. The Full Bench of NIRC has already held that the application was not maintainable in such cases in the case of Boots Pharmaceuticals Limited vs. Member, N.I.R.C. Bench, Karachi and another (1994 PLC 476) which has been relied upon by the learned Member of the NIRC who has dismissed the application on the ground that the appellant was neither party before the NIRC in earlier proceedings nor such point was taken before the learned Labour Court or the NIRC, hence the objection is not attracted to the facts of the present case and is accordingly dismissed.
Reverting to the merits, I have heard Mr. Mehmood Abdul Ghani, learned counsel for the appellant, and Mr. Shehanshah Hussain, learned counsel for the respondent. I have also carefully examined the evidence available on record and the view taken by the learned Labour Court in the impugned judgment.
In order to prove his case the respondent filed his affidavit-in-evidence as well as affidavit-in-evidence of one Shabbir Ahmed. The respondent has also filed certain documents in support of his case. Both the witnesses were duly cross-examined. The respondent examined Kamran Abbasi, Rasib Gill, Rana Atique Ahmed, Muhammad Yousuf Charolia, Dr. Jameel Qadri, Iftikhar-ud-Din (Inquiry Officer), Owais Sultan and Tariq Saeed. All the witnesses were cross-examined at length. Witness Iftikhar-ud-Din has also produced inquiry proceedings and other relevant record.
Learned Labour Court framed the following points for determination:--
Whether applicant was dismissed from service after raising industrial dispute by the Employees Union under Section 22-A (8)(g) before NIRC?
Whether dismissal of applicant not being related to the Industrial Dispute nor having led to Industrial dispute hence applicant could not filed application under Section 25-A?
Whether grievance application is not maintainable as grievance notice has been served against the installation Manager and not against the Shell Pakistan Ltd?
Whether applicant is entitled to any relief?
What should the order be?
The appellant is aggrieved by the finding on Points Nos. 2 and 3 and the result thereof reflected in the Finding Nos. 4 and 5.
A perusal of the impugned judgement in the light of the facts of the case reveals that the evidence has been grossly misread by the learned Labour Court. The determination of points is to be based on evidence however learned Labour Court has not appreciated the evidence in its proper context. Perusal of the evidence of the inquiry officer Mr. Iftikharuddin shows that the respondent was afforded full opportunity to defend the charges levelled against him. However, the respondent opted to remain absent on the day of inquiry. The plea taken by the respondent that at the venue of inquiry, no body was present is only an afterthought plea and is belied by his own statement as in Grievance Notice, he has stated that he waited for about one hour at the place of inquiry, while in his letter dated 17.5.2002 delivered by him on the next day i.e. 18.5.2002 at 13.50 hours, he stated that he waited for more than 45 minutes and in cross the time is stated at 2 hours. Furthermore the respondent has not produce any witness in support of his plea that he was present at the place of inquiry. The only witness produced by the appellant has not said any thing about that. Learned Labour Court has failed to appreciate this aspect of the matter. Even otherwise the witness happened to be the driver of the vehicle involved in the incident.
The plea taken by the respondent that he has not given reply to the show-cause notice but has asked for copy of complaint has no force. The wording of the reply to show-cause notice itself reveals that the respondent has denied the charges and asked for copy of complaint to prepare the defence. The same clearly reveals that the respondent was to make preparation for an inquiry.
Learned Labour Court has also observed that Rasib Gill has made contradictory statement. In fact he has specifically stated that he has seen the incident but he did not observe helmet being hit and broken. This statement cannot be termed as a contradictory statement.
The respondent has stated in his cross-examination that he remained in employment with the appellant for a period of 24 years. A statement made to the effect that he neither knew Mr. Iftikharuddin, Inquiry Officer, nor has seen his office. The communication was conveyed to him well in time and if he had any doubts he could have clarify the same as though he remained absent from the proceedings but he was present on his duty. He did not make any effort to ascertain the position and made oral statements to contradict the contents of written opportunity provided to him to attend the inquiry proceedings. The same cannot be made basis for arriving at the conclusion particularly when there was further evidence to the effect that the respondent was also called to attend the proceedings but he refused to do so. Learned Labour Court has also failed to appreciate the contradictory statement of the appellant in this regard as. Learned Labour Court has also failed to appreciate the evidence inasmuch as the reply in cross-examination of Rasib Gill. Supervisor. "I did not observe helmet being hit and broken" is a statement of the witness to the effect of hitting. He has not denied that the complainant was not wearing the helmet but the learned Labour Court has wrongly deduced a conclusion that because witness did not see the incident of hitting by the respondent with iron rod, therefore, Rana Atique Ahmed was not wearing helmet at all. The conclusion thus based on misreading of evidence is also erroneous and is liable to be set aside.
The respondent was afforded opportunity to participate in the proceedings, he had prior notice of the proceedings. He had ample opportunity to ascertain the venue of proceedings in case of any doubt, which hardly arises as the respondent also claims himself to be a union activist. The question of not holding of inquiry proceedings against such an activist would obviously not go unnoticed in an institution having a strong organised trade union which is belied from the record of the present proceedings.
Learned Labour Court has also failed to appreciate the fact that the respondent has also not been able to produce any independent witness to corroborate his version. On the other hand the appellant has produced 8 witnesses and no material contradiction is shown to be there and therefore the same cannot be ignored.
In view of the above position a case of misreading of evidence has been made out in addition to the ignorance of the material evidence on record. This appeal is allowed, the impugned order of the Labour Court dated 26.5.2003 in Application No. 166/2002 is set aside and the order of dismissal is restored.
(Aliya Sattar Chaudhry) Appeal allowed.
PLJ 2006 Karachi 50
Present: Zia Perwaiz, J.
ALLIED BANK OF PAKISTAN LTD. through its TWO ATTORNEYS--Appellant
versus
MUHAMMAD BASHIR KHAN --Respondent
Labour Appeal No. 207 of 2004, decided on 2.6.2005.
(i) Industrial Relations Ordinance, 1969 (XXIII of 1969)--
----S. 25-A--Grievance notice served by employee upon employer--Validity--Grievance notice addressed to Chairman Review Committee, who was not appointing authority was not valid as the same was required to be addressed to appointing authority/employer. [P. 54] A
(ii) Industrial Relations Ordinance, 2002 (XCI of 2002)--
----S. 47(3)--Employee of Bank--Charge of embezzlement--Proof--Amount sent by respondent on behalf of appellant Bank was found to be deficient--Respondent when confronted with such shortfall admitted his guilt and agreed to re-imburse the same--Respondent at no stage of proceedings raised any objection or contended that confession was obtained from him through undue influence, or under duress or coercion--Admission of respondent and subsequent return of amount by him proved charge of embezzlement--Misappropriation of specified amount by respondent/ employee, thus, stood proved beyond any shadow of doubt--Charges of theft, fraud had dishonestly were also proved against employee--Employee/respondent was thus, rightly dismissed from service on basis of inquiry conducted by inquiry officer--Labour Court had no discretion to reduce such punishment--Employer alone has discretion to decide quantum of punishment--Modification of punishment by Labour Court was set aside and punishment of dismissal from service awarded by employer was restored. [Pp. 54, 56 & 57] B, C & D
2005 SCMR 638; 2005 SCMR 752; 2003 PLC (CS) 1247 and 2003 PLC (CS) 497, ref.
Mr. Shahid Anwar Bajwa, Advocate for Appellant.
Mr. Islam Hussain, Advocate for Respondent.
Date of hearing : 12.5.2005.
Judgment
This Appeal under Section 47(3) of the Industrial Relations Ordinance, 2002, (the IRO) is directed against the impugned Order dated 12.1.2004 passed by the learned Labour Court V at Karachi on Application No. 197 of 2002, filed by the Respondent herein which was partly allowed and the Respondent was directed to be reinstated in service.
The respondent was an employee of the appellant, working as Cashier at its Adam Arcade Branch Cash dealings of this Branch of the appellant involved transfer of cash in excess of the prescribed limit as well as providing of cash as and when required by the Branch were being dealt with by its main feeding branch at Zaibunnisa Street. On 23.5.2001, the respondent, working as Cashier at the Adam Arcade Branch of the appellant transmitted cash amounting to Rs. 1.4 million to the Zaibunnisa Street Branch, which was the feeding branch. On physical verification of the transmitted amount a shortage of Rs. 146,000/- was detected and therefore the cash was no accepted and was returned back to the Adam Arcade Branch at about 4.45 p.m. The Branch Manager of Adam Arcade Branch also physically checked the cash at the counter which led to discovery of further shortage of Rs. 375,000/- making a total shortfall of Rs. 521,000/-. The respondent accepted the shortfall of Rs. 521,000/- and passed a voucher dated 23.5.2001 for the shortfall in the suspense account to the extent of Rs. 521,000/- and the Books were balanced. On 19.6.2001, a Charge Sheet was issued to the respondent. Thereafter an inquiry was conducted and the respondent was found guilty. Accordingly, he was dismissed from service. The respondent filed an appeal before the Chairman, Review Committee which was also dismissed. The respondent, then, filed Grievance Petition under Section 25-A of the IRO, 1969 before the Labour Court V at Karachi, which was partly allowed by the impugned Order and the penalty of dismissal from service was converted into postponement of promotion for three years and the respondent was directed to be reinstated in service. Being aggrieved by the impugned Order, the appellant has filed the present appeal.
Learned Counsel for the appellant submitted that once the employee was found guilty of misconduct, it was the sole discretion of the employer to decide the quantum of punishment and contended that the Labour Court has no jurisdiction to interfere with exercise of such discretion of the employer. He also contended that once that employee uses the funds of the employer for his personal benefits, recovery of such funds does not absolve the employee of the misconduct committed by him.
On the other hand, the Counsel for the respondent has contended that it is admitted position that no financial loss was suffered by the appellant as the entire amount of the shortfall has been made good by the respondent. He also contended that the allegation of shortage has been leveled against the respondent and that no charge of embezzlement or misappropriation has been made in the Special Report and the charge of misappropriation and embezzlement was only an after-thought. He submitted that shortage of amount in the cash in a usual matter and, it cannot be termed as misappropriation or embezzlement. He also contended that had this been a case of misappropriation the appellant would have lodged a report to that effect with the area police, however, no such report has been lodged. Finally he stated that the trial Court has rightly reached the conclusion that the respondent has not committed any wrong for which the major penalty could be awarded and prayed that the appeal may be dismissed and the respondent be allowed to resume his duties. In support of his contentions, he relied on the cases reported as (i) Shamim Ahmed Kazmi v. Pakistan International Airlines Corporation and another (2005 SCMR 638), (ii) A.D.B.P. and another v. Akif Javed (2005 SCMR 752), and (iii) President, United Bank Limited v. Iftikhar Hussain Khan and another (2003 PLC (CS) 497).
I have heard the learned counsel for the parties and have gone through the record with the assistance of the learned counsel.
In view of the arguments advanced by the respective counsel for the parties, the points for consideration are:
Whether the grievance notice served by the respondent upon the appellant was valid?
Whether the Charge of embezzlement has been proved?
Whether the impugned order, imposing penalty of postponement of promotion for a period of three years from the date when it became due, is a legal order?
Regarding the first point, concerning the validity of the grievance notice, the admitted position is that in the year 1981, when Habib Bank Limited, United Bank Limited, Muslim Commercial Bank and Allied Bank Limited were all nationalized banks, the rules of service were framed for the manner of service of grievance notice by an aggrieved employee. In the present case the dismissal order was signed by the Regional General Manager, however, instead of addressing the grievance petition to the Regional General Manager, who was the Competent Authority, the respondent addressed the grievance petition to the Chairman, Review Committee. The question regarding issue of grievance notice has been discussed in detail in the case of (2002 SCMR 943) the relevant portion whereof reads as under:
"6. On the other hand learned counsel appearing for caveator contended that the appeal so filed by the petitioner against letter of dismissal dated 2nd May, 1996 to the next higher authority cannot be treated a grievance notice within the meaning of Section 25-A, IRO. To substantiate his arguments, he relied upon 1984 PLC 89.
As a result of above discussion we are of the opinion that petitioner initiated incompetent proceedings against the respondent as no grievance notice under Section 25-A, I.R.O. was issued. As such, relief was rightly declined to him by the High Court, vide impugned order.
In view of the above, a grievance notice addressed to the Chairman, Review Committee, who was not the appointing authority, was not valid and it was required to be addressed to the appointing authority/employer.
The second point for consideration is whether the charge leveled against the respondent i.e. The charge of embezzlement, was proved or not. Admittedly, it was the respondent who sent an amount of Rs. 1.4 million to the Zaibunnisa Branch of the appellant. The amount on arrival was found short by Rs. 146,000/-. When the amount was not accepted and returned back by the Zaibunnisa Branch, it was again checked by the Branch Manager and a further deficit of Rs. 375,000/- was detected. It was found that in the packets 2 currency notes of Rs. 1000 denomination were put on top and two on bottom and in between 96 currency notes of Rs. 500 denomination were put. Thus, giving an impression that it was a packet of 100 notes of Rs. 1000/- denomination, containing Rs. 100,000/- while in fact it was a packet containing 4 notes of Rs. 1000 denomination and 96 notes of Rs. 500/- denomination, totaling Rs. 52,000/-. When the respondent was confronted with this he admitted that it was done by him and readily agreed to reimburse the amount. Since the respondent admitted his guilt, therefore, there was no need togather any evidence to prove the same. At no point of time the respondent raised any objection or contended that the confession was obtained from him through undue influence or under duress or coercion. Accordingly, I am of the considered view that in view of the admission of the respondent and the subsequent return of the major portion of the amount, the charge of embezzlement stood proved beyond any reasonable doubt.
The third point for consideration is whether the order setting aside the penalty of dismissal from service and imposing a penalty of postponement of promotion for a period of three years from the date when it became due, is a legal order.
The types of punishment that could be awarded under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 are enumerated in Section 15 thereof, relevant portion whereof is as under:
"15. Punishments. (1) .....not relevant......
(2) A workman found guilty of misconduct shall be liable to any of the following punishments:--
fine in the manner prescribed under the Payment of Wages Act, 1936 (IV of 1936), upto three paisa in the rupee of the wages payable to him in a month;
withholding of increment or promotion for a specified period not exceeding one year;
reduction to a lower post; or
dismissal without payment of any compensation in lieu of notice.
A bare perusal of the above Section shows that a person found guilty of misconduct shall be liable to any one of the following punishments, namely (i) fine in the manner prescribed under the Payment of Wages Act, 1936 (IV of 1936); withholding of increment or promotion for a specified period not exceeding one year; reduction to a lower post; or dismissal without payment of any compensation in lieu of notice.
Sub-section (3) of Section 15 of the above Standing Order describes "misconduct" as under:
"(3). The following acts and omissions shall be treated as misconduct:--
.......(not relevant)........
theft, fraud, or dishonesty in connection with the employer's
business or property;
to (1) ............ (not relevant) ..........
From the above quoted clause (b) of sub-section (3) of Section 15 of the Ordinance it is clear that a person guilty of theft, fraud or dishonesty in connection with the employer's business or property is liable to one of the above mentioned punishments.
Now it may be seen whether the acts of the respondent attract the above quoted provisions of law or whether they fall out of the pail. As discussed above, a shortage of Rs. 521,000/- was found in the cash which was under the direct supervision of the respondent. The respondent never reported to his superiors of any shortage in cash. As argued by the counsel for the respondent, in banks shortage of cash is a routine occurrence. However it is worth mentioning that shortage of cash of such a huge amount (more than halt a million Rupees) appears to be distinct from shortage of a few currency notes which may be attributed to human error. Furthermore, the manner in which the respondent tried to deceive his superiors coupled with the amount involved is not a routine matter. It smells of ulterior motives and dishonesty. The respondent tried to deceive his superiors by putting two notes of Rs. 1000 denomination on top and two on the bottom and between them, in place of 96 notes of Rs. 1000/-, he put same number of notes of Rs. 500/- denomination. Thus, he deliberately misrepresented Rs. 500/- notes as Rs. 1000/- notes and tried to cheat his employers. The respondent did not approach his superiors straight-way to inform them that a sum of Rs. 521,000/- is short in his cash. Then perhaps he would have been considered as guilty of negligence. The acts of the respondent confirm that he misappropriated a sum of Rs. 521,000/- and then he tried to cover up the matter by cheating his superiors/employers in the manner described above and the case is not one involving "short cash" simplicitor. Thus, the respondent is not guilty of theft only, but he is guilty of all the three acts mentioned in the said sub-clause i.e. theft, fraud and dishonesty.
An inquiry revealed that the respondent was guilty and accordingly he was dismissed from service. It is the sole discretion of the employer to decide the quantum of punishment keeping in view the nature of the banking business and maintenance of financial discipline. The Labour Court has no jurisdiction to interfere with exercise of such discretion of the employer. This issue was considered at length in the case of Punjab Road Transport v. Punjab Labour Court No. 2 and another, wherein, after observing that in determining the exact punishment to be inflicted the factors invariably taken into consideration in the case of an employee are the length of his service, the quality of service rendered by him and the gravity of the default or dereliction of duty, it was held that "In awarding a punishment permitted by law the employer is exercising a discretion which is not open to review by any outside authority. It is only when he does not observe the law or exceeds its limits that the intervention of an outside authority or Tribunal is called for." Therefore, employer acted in accordance with the law and did not exceed its limits, it was not open to the Labour Court to set aside the punishment awarded by the employer and to substitute his own judgment therefor.
The learned counsel for the respondent has contended that the allegation of shortage has been leveled against the respondent and that no charge of embezzlement or misappropriation has been made in the Special Report and the charge of misappropriation and embezzlement was an after thought. This contention is fully repelled by the first para on page 2 of the Special Report, which reads as under:
"From the foregoing, it is evident that Mr. Muhammad Bashir, Cashier has committed misappropriation/embezzlement." (emphasis supplied).
The learned counsel also contended that no loss was caused to the appellant and that if this was a case of misappropriation the appellant would have lodged a report to that effect with the area police, however, no such report has been lodged.
Mere fact that the amount embezzled was returned by the respondent to the appellant does not absolve the respondent of the misconduct committed by him. It is proved that the respondent is liable to refund the amount so embezzled but at the same time he has also to face the other consequences of his dereliction. One such consequence is the departmental inquiry and punishment for the default committed by the employee. In the present case the shortage was detected by the Zaibunnisa Street Branch and then by the Manager of the Adam Arcade Branch. Since there was a deliberate act to the defraud the persons involved with handling of the cash, therefore, it cannot be termed as a simple shortage of cash. Therefore, apart from refunding the money so embezzled, the respondent was also liable to face the departmental action therefor. In the case of Sultan Ahmed v. National Bank of Pakistan & others (2003 PLC (CS) 1247), a similar plea, that since the alleged embezzled amount was already deposited by the employee, therefore, penalty of dismissal from service was illegal, which was repelled in the following manner. "The mere fact that the amount allegedly drawn in a fraudulent manner, was returned and no loss was caused to the bank, would not remove the charge of misconduct against the petitioner who being custodian of public and private money was not supposed to act in breach of trust. The employees of financial institutions and banks are required to be extremely fair in the dealings and their conduct should be above board so that people may not loose confidence in the financial institutions. The dishonest use of private property for personal gain even temporarily, without an intention to cause loss to a party or the bank, would not only be an act of misconduct but also constitutes a criminal offence." The penultimate sentence in the above quoted passage also furnishes ample reason for not initiating a criminal proceedings against the respondent as this would cast a shadow as to the financial discipline and credibility in the mind of public in respect of such bank. Even otherwise, if, for obvious reasons, taking a lenient view of the matter, no criminal proceedings were initiated against the respondent, it would not mean that no misconduct was committed by the respondent. If the employer took a lenient view and did not report the matter to police, such leniency cannot be made basis to conclude that no case for misappropriation and embezzlement has been made out.
The learned counsel for the respondent has relied on the case of President United Bank Limited v. Iftikhar Hussain Khan and another (2003 PLC (CS) 497) wherein the Hon'ble Supreme Court partly allowed the appeal of the Bank and instead of dismissal from service, awarded penalty of postponement of promotion of the employee for a period of three years. In this case the facts were that the Respondent No. 1, who was manager of a branch of the appellant obtained some advance which was duly sanctioned. However, there was some delay as he deposited the amount beyond the prescribed period. Thus, the facts of this case, where no embezzlement is involved, are totally different than the case in hand.
Likewise, the cases relied upon by learned counsel for the respondent, namely, (i) Agricultural Development Bank of Pakistan & another v. Akif Javed (2005 SCMR 752) and (ii) Shamim Ahmed Kazmi v. Pakistan International Airlines (2005 SCMR 638) are also distinguishable. In the first case, the respondent, who was an employee of the bank was dismissed from service on the ground that he obtained illegal gratification from a person for providing him employment in the bank. The Service Tribunal, mainly on the grounds that the employee was not in a position to appoint any person in the bank and that in the preliminary inquiry neither the respondent nor the complainant will examine, partly accepted the appeal of the respondent and modified the punishment of dismissal from service to compulsory retirement. In the second case the petitioner, on the complainant of a foreign passenger for overcharging on excess baggage, was dismissed from service. In this case also the Service Tribunal converted such punishment into compulsory retirement. The facts of these two cases are totally different and therefore the law laid down in these cases is of no help to the appellant. In none of these cases the employees were custodians of the amounts which they misappropriated. In the case in hand, the respondent was custodian of the amounts out of which he embezzled.
As the guilt of the respondent is proved, the conversion of the punishment by the Labour Court is not tenable and the impugned Order dated 12.1.2004 of Labour Court V is hereby set aside. Appeal is allowed.
(Aziz Ahmad Tarar) Appeal accepted.
PLJ 2006 Karachi 58 (DB) [Companies Jurisdiction)
Present: Muhammad Mujeebullah Siddiqui and Khilji Arif Hussain, JJ.
TAHIR SAEED EFFENDI--Appellant
versus
CHAIRMAN, SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN, ISLAMABAD and 3 others--Respondents
Misc. A. No. 4 of 2003, CMA Nos. 517, 519 of 2003, decided on 20.10.2005.
Civil Procedure Code, 1908 (V of 1908)--
----S. 96--Limitation Act (IX of 1908), S. 5--Delay of 106 days in filing appeal, expiry period of limitation--Condonation of delay--Justification for--Wrong impression entertained by appellant/petitioner that review was competent and he had filed review petition instead of appeal and after dismissal of review petition, he had waited for disposal of similar application for condonation of delay filed by a stranger to lis, would not provide sufficient justification for condonation of delay--Law of Limitation being very strict, person seeking condonation of delay has to explain delay for each day, failing which condonation would not be allowed--No reasonable explanation for non-filing of appeal within period of limitation and, particularly for delay in filing appeal after dismissal of review application has been provided--Application for condonation of delay being without substance the same was dismissed as also the appeal which had been filed beyond period of limitation. [P. 60] A
Mr. Anjum Ghani Khan, Advocate for Appellant.
Mr. Agha Faquir Muhammad, Advocate for Respondents Nos. 1 to 3.
Mr. Jawed Asghar, Advocate for Respondent No. 4.
Date of hearing : 20.10.2005.
Order
We have heard Mr. Anjum Ghani Khan, learned counsel for the appellant, Mr. Agha Faquir Muhammad, learned counsel for Respondents Nos. 1 to 3 and Mr. Jawed Asghar, learned counsel for Respondent No. 4.
Mr. Anjum Ghani Khan has submitted that after passing of impugned order on 27.12.2002, the appellant filed a review application before the Respondent No. 2 on 17.2.2003, which was dismissed on 1.4.2004 for the reason that the review was not competent in law. He has further submitted that an appeal was filed by Mr Akhtar Ali Khan, one of the Directors, who had not filed appeal against the order of Registrar, but had instead opted to pay the aggregate penalty of Rs. 30,000/-, subsequently filed a time barred appeal before the Respondent No. 2 and the delay was condoned. The delay in the case of Mr. Akhtar Ali Khan was condoned and appeal was admitted on 17.4.2003, copy whereof was received by the appellant on 19.4.2003 and thereafter this appeal was filed on 3.5.2003.
Mr. Anjum Ghani Khan has submitted that in the first instance the appeal was not filed before this Court within the period of limitation under that impression that review application was competent and after dismissal of review application on 1.4.2003 the appeal was still not filed as the appellant was waiting for the result of condonation application submitted by Mr. Akhtar Ali Khan before Respondent No. 2. He has no explanation as to why the appeal was not filed within a day or two after receiving the copy of order in the case of Mr. Akhtar Ali Khan.
Even otherwise, we are of the opinion that the wrong impressions entertained by any person cannot provide sufficient justification for the condonation of delay. The Law of Limitation is very strict and there is plethora of rulings on the point that a person seeking condonation of delay has to explain of each day, failing which the condonation shall not be allowed. In the present case there is no reasonable explanation for non-filing of the appeal within the period of limitation and particularly for the delay in filing the appeal after dismissal of review application. The application is without substance, which stands dismissed accordingly.
2 & 3. Consequent to the dismissal of application under Section 5 of the Limitation Act, the appeal along with the listed application stands dismissed on the point of limitation.
(Aziz Ahmad Tarar) Appeal dismissed.
PLJ 2006 Karachi 60 (DB)
Present: Azizullah M. Memon and Ghulam Rabbani, JJ.
LIBRA ENTERPRISES--Petitioner
versus
Messrs MACTER PHARMACEUTICALS (PVT) LTD.--Respondent
High Court Appeal No. 189 of 2003, decided on 7.10.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 2--Law Reforms Ordinance (XII of 1972), S. 3--Appeal--Suit for recovery of outstanding amount--Claimed by respondent for recovery of remaining outstanding amount against appellant towards supplies made to defendant--By mutual consent, the distributorship in question was cancelled and respondent issued certificate, stating that outstanding amount was actually paid to respondent by appellants--Nothing was outstanding against appellants was further confirmed by proprietor of plaintiff/respondent, who issued certificate that respondent had received all outstanding dues from appellant and nothing remained to be paid to respondent--Suit decreed filed by respondents taking into consideration affidavit in evidence filed by respondents in proof of their claim--Held: Cases between parties showed be decided which were framed to foster cause of justice, should sparingly come in way of dispensation of justice on merits, rules and procedure--Impugned judgment and decree passed in suit were recalled and appellants were afforded with an opportunity to file written statement within specified period--Appeal allowed. [Pp. 61, 62, 63 & 64] A, B, C, D, E & F
Mr. Asim Mansoor, Advocate for Appellants.
Mr. Ghulam Ghous, Advocate for Respondents.
Date of hearing : 12.9.2005.
Judgment
Azizullah M. Memon, J.--The appellant Libra Enterprises has filed this High Court Appeal against the judgment and decree both dated 6.3.1997 passed by a learned Single Judge of this Court in Suit No. 611 of 1995.
Heard Mr. Asim Mansoor, Advocate for the appellant and Mr. Ghulam Ghous, Advocate for the respondent.
The facts giving rise to filing of this High Court Appeal are to the effect that in its Suit Bearing No. 611 of 1995, the plaintiff/respondent asserted that it was working as a corporate body duly registered under the Corporate Law Authority under the provisions of Companies Ordinance, 1984 and was doing business of the trade/manufacture of pharmaceuticals etc. Defendant/appellant was a distributor/agent of the plaintiff's production at Peshawar but then discontinued the same with the plaintiff with effect from November/December, 1992 and a sum of Rs. 8,47,514.71 remained outstanding against the defendant/appellant towards the supplies made to them by the plaintiff; plaintiff asserted to have "tentatively negotiated the settlement subject to actual accounts to be prepared on the basis of the record available at their respective offices. The parties in presence of witnesses undertook to settle down their actual accounts at suitable time".
It was further averred in the plaint that vide letter dated 7th December, 1993 the defendant/appellant was required to pay the said outstanding dues but it failed to pay the same. Hence the plaintiff/respondent prayed in the said suit for decree of the said amount together with equalizer at 10% per annum till final settlement/payment of the said amount from the date it fell due.
Vide judgment dated 6.3.1997 a learned Single Judge decreed the said suit by recording his observations, "the defendants were served in the suit and Mr. Sallahuddin Gandapur, Advocate filed Vakalatnama on behalf of the defendants on 6.12.1995 but failed to file written statement. The matter was fixed for final disposal on 5.8.1996, 26.9.1996, 9.10.1996, 28.10.1996, 11.12.1996, 27.1.1997, 17.2.1997 and 5.3.1997. On these dates the defendants' counsel remained absent. The plaintiff's counsel was directed to file affidavit in evidence which has been filed by him. The facts of the plaint have been reiterated by the deponent who is Resident Director of the plaintiff's company. He has stated on oath all the facts duly supported with the documents. There is no rebuttal as such the evidence adduced on behalf of the plaintiff is to be believed and the suit is decreed for Rs. 8,47,514.71 with equalizer at 10% from the date of the suit till realization of the entire amount with costs of the suit". Hence the defendant/appellant has filed this appeal against the said judgment, which was followed by a decree dated 6.3.1997.
Learned counsel for the appellant argued that by mutual consent, the distributorship in question was cancelled and the respondent/plaintiff issued certificate dated 31.12.1992 stating therein that the outstanding amount of Rs. 691, 383.60 was actually paid to them by the defendants/ appellants and that nothing was outstanding against the appellants, which was further confirmed by Mr. Jamaluddin Ahmed, the proprietor of the plaintiff on 25.3.2003, further that the appellants were never served with the summons of the suit and that they never executed any Vakalatnama in favour of Mr. Salahuddin Gandapur, Advocate to make appearance on their behalf; that the Vakalatnama filed in the suit purporting to have been executed by the appellants was not so executed by them and contained a forged signature of the appellant who received a notice from the Court of learned Senior Civil Judge, Peshawar on 13.6.2003 informing that an Execution Application was filed against them in respect of the impugned judgment and decree whereafter their representative came to Karachi to make enquiries but could not locate the case file till the month of September, 2003 whereafter the appellant filed an application on 9.9.2003 to have the certified copies of the plaint of the suit, judgment and decree with other documents, that the said Vakalatnama was said to have been signed by one Akbar Qayyum son of Abdul Qayyum on their behalf, whereby appointing Mr. Salahuddin Gandapur, Advocate to appear on their behalf, but the said Akbar Qayyum was never proprietor of the appellant company, nor was ever in employment therein, and was never authorized to engage Mr. Salahuddin Gandapur to make appearance in the suit on behalf of the defendant company.
The defendants/appellants have, inter alia, placed reliance on a certificate, dated 31.12.1992 which is said to have been issued by Mr. Jamaluddin Ahmed on behalf of the plaintiff-company, certifying therein that they had received all outstanding dues from the defendants/appellants, and nothing remained to be paid by them, which further bears endorsement dated 25.3.2003 of the said Jamaluddin, proprietor of the plaintiff-company, thereby confirming the contents of the said certificate in presence of the witnesses; the defendants/appellants have specifically pleaded that Akbar Qayyum, who allegedly received the summons of the suit, was neither proprietor of the defendant-company nor was ever appointed by them in any capacity, nor was ever authorized to receive the process of the suit on their behalf or engage any Advocate to pursue the proceedings of the said suit on their behalf.
The said certificate, thereby certifying no dues outstanding against the defendants/appellants, coupled with the fact that the defendants/ appellants specifically plead that the said Akbar Qayyum not having remained connected with the defendant-company, strengthen the case of the appellants, reference may be made to the observations recorded by the Honourable Supreme Court of Pakistan in Wak Orient Power and Light Limited v. Westinghouse Electric Corporation and others 2002 SCMR 1954 to the following effect:--
"Under Order VIII, Rule 1, C.P.C. The time given for filing of written statement ordinarily would not exceed 30 days but in exceptional circumstances in case of failure on the part of defendant to file the written statement, the trial Court in its discretion may extend the time for filing the written statement beyond the prescribed time of 30 days and further the Court in suitable cases can grant more time if it is satisfied that the explanation offered by the defendant for not filing the written statement within the time given was reasonable, it is also within the domain of the trial Court to condone the default of filing of the written statement of all defendants in a case in which there are more defendants and the explanation offered by one of the defendants is found satisfactory. In the case in hand, it is an admitted fact that Defendants Nos. 3 and 4 were not served till 1st of March, 1999 and fresh summons were issued for their service for 14th of April, 1999. The Respondent No. 1 without proper service through the process of the Court, on coming to know about the filing of suit by the appellant instructed a counsel to watch his interest and the said counsel without having power of attorney on behalf of the respondent, represented him, therefore, he would not be deemed to be the recognized agent of the said respondent under Order III, Rule 1, C.P.C. In any case learned counsel who appeared on behalf of the respondents before filing his power of attorney raised the objection relating to the jurisdiction of Court and sought time to seek instructions from his client who was abroad, therefore, in the given circumstances instead of invoking the penal provisional of Order VII, Rule 10 C.P.C. The Court with a view to provide a fair opportunity to the respondents to defend the suit should only proceed further either on their proper service through the process of Court or at least after the submission of power of attorney by the learned counsel appearing on their behalf as without filing power of attorney, he would not be in a position to act as their recognized agent and file the written statement. Legally the respondents were neither being represented by a recognized agent nor were yet served, therefore, non-compliance of order of filing the written statement would be of no penal consequence as no such order could be passed without proper service of the respondents. In any case, the Court in such cases instead of imposing the penalty of striking off the defence under Order VII, Rule 10, C.P.C. would prefer to condone the delay to avoid any injustice and would be hesitant in exercising the discretionary powers under Order VII, Rule 10, C.P.C. unless there are compelling reasons and exceptional circumstances. It is also not necessary that Court after striking off the defence of the defendant under Order VII, Rule 10, C.P.C. must pass a decree and may proceed against the defendant ex parte as despite failure of defendant to file the written statement, he does not lose the right of participation in the subsequent proceedings and can still defend himself by filing the counter-affidavit and thus, the Court is not bound to essentially pass a decree under Order VII, Rule 10, C.P.C. without recording evidence in a case in which defendant fails to file the written statement."
The Honourable Supreme Court of Pakistan, time and again, has laid stress on the fact that the cases in between the parties should be decided on merits and the rules and procedure are framed to foster the cause of justice and should sparingly come into the way of dispensation of the same on merits, reference may be made to "Syeda Tahira Begum and another v. Syed Akram Ali and another 2003 SCMR 29.
In the circumstances, we are of the opinion that the defendants/appellants have made out a case to allow them to defend themselves in the abovesaid suit in order that it may be heard and decided on merits, consequently. C.M.A. No. 1079 of 2003 (wherein a prayer has been made to condone the delay in filing this appeal against the impugned judgment and decree) is hereby allowed and the appeal itself also stands allowed. The impugned judgment and decree passed in Suit No. 611 of 1995 are hereby recalled and the defendant/appellant is afforded with an opportunity to file its written statement in the suit within thirty days from the date of announcement of this judgment, provided that they shall pay the cost of Rs. 20,000/- to the plaintiff/respondent for all such purposes, for further proceedings with the suit on merits.
(Aliya Sattar Chaudhry) Order accordingly.
PLJ 2006 Karachi 65
Present: Qaiser Iqbal, J.
SMITHKLINE BEECHAM CORPORATION and 3 others--Plaintiffs
versus
PHARMEVO (PVT.) LTD. through its CHIEF EXECUTIVE--Defendant
Suit No. 1288 of 2005, decided on 19.1.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O.XXXIX, Rr. 1 & 2 r/w S. 151--Patents Ordinance, (LXI of 2000), Ss. 60 & 61--Exclusive marketing rights under Black Box Patent Application--Interim injunction, granted of--Plaintiff had prima facie case--Balance of convenience and irreparable loss was in favour thereof, if defendant was not restrained from infringing patent right of plaintiff by matring the product in-question--Prima facie defendant sought imitation of patent process arisen out of process patent registered in Pakistan--There was no controversy existed on the point that defendant's products were registered with Health Department--Defendants did not disclose their manufacturing process except presumption--Interim process except presumption--Interim injunction was granted. [Pp. 71 & 72] C
(ii) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 129--Patent Ordinance (LXI of 2000), Ss. 60 & 61--Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2--Exclusive marketing rights under Black Box Patent Application--Manufacturing process--Protection their rights pertaining to the process patent registered in Pakistan--Plaintiffs company claimed to have exclusive marketing rights under Black Box Patent Application with regard to medicine in question and sought injunction against defendant, restraining from manufacturing, importing, formulating or offering for sale and selling in form of any of its pharmaceutical products--Plaintiff's patent had novelty in use much prior to its registration defendant did not disclose its manufacturing process--Presumption of exclusive right of use subsists in favour of the plaintiff who had placed on record the process of preparation of the pharmaceutical and had incurred billion of US dollars upon the invention--Question of infringement of patent was distinct one which required to be adjudication under the relevant law. [P. 72] A & B
1991 CLC Kar. 69; 1986 MLD 1535; AIR 1969 Bom. 255; 1992 CLC Kar. 2382; 2003 CLD Kar. 416; 1980 CLC Kar. 826; 2002 Kar. CLD 120; 1985 CLC Kar. 2182, relied.
Mr. Moeen Qamar & Mr. Hassan Irfan Khan, Advocate for Plaintiffs.
Mr. Abdul Hameed Iqbal, Advocate for Defendant.
Date of hearing : 19.1.2006.
Order
This is an application under Order XXXIX Rules 1 & 2 read with Section 151 CPC, moved by the plaintiffs seeking interim injunction against defendant restraining them from manufacturing, importing formulating or offering for sale and selling Rosiglitazone, in the form of any of its pharmaceutical with addition to any other pharmaceutical ingredients and from infringing plaintiffs' Patent No. 133856, 136289, 136427 and 136429, on account of plaintiff's exclusive marketing rights under Block Box Patent Application No. 218/98, 341/2000 and 342/2000 in any manner.
Precisely, the facts leading to the case are that the Plaintiff Nos. 1 to 3 are corporation organized in U.S.A. and U.K. while the Plaintiff No. 4 is a Group of companies. The plaintiffs are dealing in pharmaceutical Chemical Groups operating throughout the world with the strategy of innovation and globalization to respecialize in production, research and marketing the pharmaceutical being the world leader. The Glaxo SmithKline Group of Companies had several subsidiaries associated companies situated worldwide with a vast net work of distribution of its product. The Plaintiffs Nos. 1 to 3, after the successful research invented a novel product of substantial therapeutic importance including its process manufacture and formulation composition, known as Rosiglitazone for the treatment of diabetes type-II, the Plaintiffs Nos. 1 to 3 are the proprietor in Pakistan having Pakistani patents relating to the process of the manufacturer of the Rosiglitazone Bearing No. 133856, 136429, 136428 and 136289, the Plaintiffs Nos. 1 to 3 were registered as patentee by the Government of Pakistan under the Patent & Design Act 1911. The aforementioned patentees are also proprietor of other investions relating to the Rosiglitazone per Black Box Patent Application moved by the Plaintiffs Nos. 1 to 3 Bearing Nos. 218/98 dated 26.2.1998, No. 341/2000 dated 19.4.2000, (Priority U.K date 20.4.1999) and Bearing No. 342/2000 dated 19.4.2000 (Priority UK date 30.4.1999), the above referred Black Box Patent Application would be examined by the patent office after 31.12.2004, in accordance with the provision of Patent Ordinance, 2000 and Article 70 (8 & 9) of the TRIPS Agreement. The patents equivalent and corresponding to Pakistan Black Box Patent Applications were granted in Europe, New Zealand, Australia, where the plaintiffs group of companies had obtained marketing approval from the concerned authorities, the Rosiglitazone is produced and marketed exclusively by the plaintiffs. During the process of examination of the above referred applications by the Pakistan Patent Office notices of acceptance of application were duly issued by the Controller of the Patents & Designs, the applications advertised for possible opposition and claim were laid open for public inspection even subsequent to the grant of patent no third party has ever filed revocation petition to challenge the validity of the Letters Patents in Pakistan. The name Rosiglitazone was adopted by the plaintiffs known in many other countries worldwide. The plaintiffs came to know through market sources that the employees of the defendants were canvassing and announcing to the doctors and in the trade that they had obtained patent registration from the Ministry of Health for manufacturing Rosiglitazone formulating and marketing pharmaceutical products containing Rosiglitazone in the form of Rosiglitazone maleat salt under the trademark Rosita (2 mg 4 mg Tablets) and they will soon introduce such products in the market on the large scale, on further query from the market it transpired that the defendant had made supply of small quantity of its infringing Rosiglitazone products in the market without taking pre-launch seminars against the norms of the industry, the defendants are packaging pharmaceutical and had infringed the product Rosiglitazone under trademark "Rosita" unauthorizedly formulated, marketed and selling the same in the market by infringing the plaintiffs' patent mark and imitated the plaintiffs' patents, which can only be prepared under the patents and Black Box Patents Application of the plaintiffs, which is a threatened violation of the plaintiffs' patent rights, entitling them for grant of injunction against the defendants. The plaintiffs had prima facie case, balance of convenience in their favour and in case of refusal they will suffer irreparable loss and injury.
On the other hand, the defendant set up the case that the plaintiff were granted Patent No. 133856 the formula claimed in claim 7 is 5 [4-(2-(N-Methyl-N-(2-Pyridyl) amino) ethroxy) benzl] thiozolidin-2, 4-dione Maleic acid Salt. On comparison as given in Merck index, the formula is not exactly the same. The Patent No. 133856 may be any derivative of thiozolidinedione based on E.P. 0306228 is not for the compound of Rosiglitazone. Black Box applications were advertised in the Gazette of Pakistan, do not show the title of the invention, still pending the Patent No. 136289 granted under Application to 220198, Black Box Application No. 218198 were filed on the same day having same specification. Copy of Patent No. 0306228 with malafide object to get the benefit treated under GATT and Trips agreement. It is averred that dishonesty of the plaintiff is more clear from the facts, that under Patent No. 136289 and Black Box Application No. 218198, filed same specifications, the subject-matter of EP Patent No. 0306228 dated 26.8.1988, copy of the said patent was submitted by the plaintiff in Patent No. 133856 a foreign patent, after the lapse of ten years. The plaintiffs had obtained the patents in negation of law, the defendants had filed revocation petition for cancellation of the said patents. The defendants is a reputable corporate group with a sale and marketing in pharmaceutical and health care business since 1974 with the group turnover around US $ 70 Million and acquired the position based on quality and professionalism and marketing ethics. The defendants from National pharmaceutical publication accessible worldwide learnt about the composition compound of the drug commonly known as Glitazone Bind PPARY patent involved in prescription in numerous Metabolism insulin "sensitizers" without increasing insulin secretion. These are of three type (a) Rosiglitazone (b) Pioglitazone (c) Trogilitazone, the defendants were already manufacturing, selling the drug under the brand. The Ministry of Health, Government of Pakistan, had granted the drug registration under the name of "Rosita" on account of the success of the brand "Rosita" plaintiffs started harassing and threatening the defendants under the garb of alleged patents and proceeded to file suit based on malafides.
I have heard Mr. Moeen Qamar, learned counsel appearing for the plaintiffs and Mr. Abdul Hameed Iqbal, learned counsel appearing of the defendants.
Learned counsel for the plaintiffs has contended that after the grant of the plaintiffs registration containing products were launched in Pakistan during the month of April, 2004. The defendant had obtained registration from the Ministry of Health for manufacturing and marketing products Rosiglitazone under the trademark Rosita by infringing the plaintiffs patent for treatment of Diabetes Mellitus Type-II.
Learned counsel appearing for the plaintiffs has contended that the process of manufacturing as well as ingredients of the medicine launched and marketed by the defendants are the same, which is registered with the patents granted to the plaintiffs in UK as well as in Pakistan, the defendants did not rebut the position by disclosing the process of manufacturing of Rosiglitazone, they are admittedly involved in the product by processing and manufacturing of product in Pakistan. It is urged that the plaintiffs have filed their Black Box Patent Application prima facie case is made out in their favour, in case of refusal they shall suffer irreparable loss and balance of convenience is also in favour of the plaintiffs. In support of the above contentions the reliance has been placed on the following case law:--
(i) Smith Kline & French Laboratories Limited v/s Pakistan Pharmaceutical Products Limited (1991 CLC Karachi Note 69).
The dictum laid down is that onus was on the defendants to establish the process of the preparation of two products was not the same. The defendants having failed to establish otherwise, plaintiffs' evidence was sufficient to establish that the product of the defendant and the process of its manufacture was the same as that of plaintiffs' product.
(ii) Messrs Annor Textile Mills Ltd. v/s Messsrs Sh. Ashfaq and 2 others (1986 MLD 1535).
Relevant portion is at Page No. 1539.
In which it is held that best evidence, which could be produced was possession of the defendants, which they have withheld, therefore, the presumption is drawn against the defendants.
(iii) Farbwerke Hoechst Aktiengesellschaft vormals Meister Lucius & Burning a Corporation etc. v/s Unichem Laboratories and others (AIR 1969 Bombay 255).
Relevant portion at Page Nos. 260 to 261, the dictum laid down is that Mr. Mistree's contention was that there was nothing in the evidence on record to show that manufacture of Uni-Tolbid Tablets or Tolbutamid by Defendants Nos. 1 and 3 was carried out by using the processes mentioned in the plaintiffs patent and the plaintiff, therefore, have not proved the alleged infringement of the said patent by Defendants 1 and 3. An infringement in plaintiffs' patent in respect of process of the manufacture of the medicinal product where the defendant admit that the drug, which they manufactured under different name is a drug in respect of which the plaintiffs obtained their patent on presumption that the defendants' drug has been produced by the patent process by which it is alleged to be an infringement can be drawn against the defendants under the general provision contained in Section 114 of Evidence Act, moreover, though the general burden of establishing the case of infringement undoubtedly rest on the plaintiffs in accordance with the Section 114 Evidence Act, the burden of proving particularly fact viz, the process by which the defendants product is being prepared by the defendants would be on the defendants. Since that is the fact especially within the terms of Section 114 Evidence Act. It is impossible for the plaintiffs to know of the precisely process that product is being prepared by the defendants and it is precisely to that sort of the case that Section 106 intended to apply.
(iv) GLAXO GROUP LIMITED and others v/s AVERON (PRIVATE) LIMITED (1992 CLC Karachi 2382)
Learned counsel for the plaintiffs emphasized that the plaintiffs enjoy exclusively marketing rights in Rosiglitazone in terms of Section 12 of the Patent and Design Act 1911, as well as under Section 30(4) of the Patent Ordinance, 2000, on the basis of Black Box Patent applications in Pakistan approved by Worldwide Health Organization as generic name of the product subsequent thereof, the world came to know about the name of Rosiglitazone and it was granted in UK since 1999 and United Kingdom since 2000 under the trademark AVANDIA. It is next urged that after the plaintiffs had filed an application for grant of drug registration for Rosiglitazone with the Health Ministry of Pakistan, the requirements of the chemical trial were imposed, which delayed the registration, after chemical trials the registration was granted to the plaintiff's Rosiglitazone containing the product the Ministry of Health finally granted drug registration on November 23, 2003, whereas the Patent Rule 2003, were promulgated in December 23, 2003, which is a date subsequently to the accrual of exclusive marketing rights in favour of the plaintiff. It is urged that till the plaintiffs, patents are not revoked, they can enforce the same against the defendants. The defendants had obtained registration from the Ministry of Health under the trademark Rosita violated plaintiffs' mark, exclusive marketing right, launched the product by infringing.
Attention is also drawn to Annual Report that in research and Development of drug during the year 1999-2000 plaintiff had spend 2.3 Billion US Dollars beside untiring human intellectual and physical efforts. It is clear that on the date of the grant of Patent No. 133856 to the plaintiffs in Pakistan on Sept. 4, 1993, Act of 1911 was in force and requirement of novelty was local. The defendant had alleged that their process of producing Rosiglitazone is different from the patentee of the plaintiffs, or otherwise covered by plaintiffs Black Box Patent.
The onus to prove was on the defendant to establish that the process of preparation of two products was not the same.
The question arises for determination as to whether the plaintiffs patent have been infringed by the defendants by processing manufacturing and marketing the goods and whether the process of manufacturing of Rosiglitazone of the registered patent in favour of the plaintiffs and one in favour of the defendants are same and whether there is a novelty and were already moved in Pakistan before its registration under Act 1911. The learned counsel for the plaintiffs has contended that plaintiffs' Patent No. 133856 relates to Rosiglitazone a derivatives of Thiazolidinedione this specification also appears in Merck Index and physician desk reference. It is urged that Thiazoldinedione is not itself pharmaceutical product but the same is a chemical generic group. The objection of defendants in relation to Patent No. 136429 and 136428 is illogical as the plaintiffs patents granted by the Controller from their title specification and claims clearly relateable to the process for production of the product Rosiglitazone. The legal aspect of the onus to prove is decided in number of authorities cited by the learned counsel appearing for the plaintiffs to thrash the legal aspect as to the onus to prove in such situation reliance is placed on Merc & Co. Ing. and others v/s Hilton Pharma (Pvt.) Ltd. (2003 C.L.D. Karachi 416), the dictum laid down is that for action of infringement of registered process patent of a drug in case of temporary injunction the onus to prove was on the defendant, which they had failed to discharge. The plaintiffs in order to show genuineness of their claim had offered to refer the product of the defendant to some expert for his opinion as to whether process of its preparation was different from the defendants' patent process, the defendants had not responded, Courts, in such circumstances drew adverse resumption against the defendants."
The learned counsel appearing for the defendant has placed reliance on the case of MESSRS PLASTICRAFTERS LTD. KARACHI v/s MESSRS MANIAR INDUSTRIES LTD. (1980 CLC Karachi 826) it has been laid down that it may be pertinent to mention that there is distinction between the registration of trademark and the registration of Design & Patent in the formal case the trademark act and the rule framed thereunder contemplates the publication of a prior notice and hearing of objection to the application for registration etc. whereas under the Patent & Design Act the registration is granted secretly without any prior publication, in other words the effected parties have particularly to contest the application. The relief of grant of interim injunction whether prima facie, there are some serious issues about the validity of the designs, said to be enforced pending adjudication in a competent Court, it will cause hardship to the effective parties. In case of (1) ATCO Lab. (Pvt.) Limited v/s PFIZER LIMITED and others (2002 Kar. CLD 120), it has been laid down if the loss and damages likely to be suffered by party due to refusal of calculable in the terms of money and whether the party breach the Court injunction as suppressed the material facts acted in the malafide manner relief of injunction is discretionary nature can be declined having regard to the facts of the each case.
(2) Tajuddin v/s Haji Mushtaq and others (1985 CLC Kar. 2182), the rule laid down is that principle as given for patent in cases of designs should be "new and original" and should not have been used prior to the date of application for registration. The plaintiff could not be allowed any hire having on the basis of copyright that defendants in challenge from foundation and question of validity of patent itself, therefore, prayer of injunction is disallowed in circumstances.
The learned counsel for the defendants has further contended that the plaintiffs have also claimed damages, easily calculated and the plaintiffs would not be entitled to the discretionary relief of injunction, to rebut the above contention, the learned counsel for the plaintiffs has contended the plaintiffs are also entitled for money decrees on account of partial compensation of the loss and damages for injury goodwill and reputation of the plaintiffs, therefore, the prayer of the injury to the goodwill and reputation to the plaintiffs is altogether different than the decree of the permanent injunction sought by the plaintiffs restraining the defendants for infringing and violating plaintiffs patent marks in respect of production of Rosiglitazone and its marketing.
It is spelled out from the record that the process of manufacturing of Rosiglitazone, one which is registered patent in favour of the plaintiff, and other of defendant are one and the same. The plaintiffs patent had novelty in use much prior to its registration. It is manifestly borne out that the defendants did not disclose their manufacturing process, it gives presumption in favour of the plaintiff against the defendant. The submission of the learned counsel appearing for the defendant that the plaintiffs patent locked novelty are without force.
The plaintiffs after the chemical trials as was demanded by the Government of Pakistan Health Department, protected their rights pertaining to the process patent registered in Pakistan.
It is an admitted position that the defendants did not disclose the process of preparation of the pharmaceutical registered at "Rosita" only deny the case of the plaintiffs that patent was formal and process was available, which came to their knowledge through different journal and periodicals, the defendants had raised plea of manufacturing of the pharmaceutical similar that of the plaintiffs admittedly sold in the local market the packet bearing endorsed Rosiglitazone similar to the plaintiffs' latent granted to the plaintiff yet they had deliberately suppressed the process of its preparation failed to discharge the burden in consonance with law. The plaintiffs had placed on record the process of preparation of the pharmaceutical and had incurred billions of US Dollars upon the invention, process of manufacturing and its marketing, therefore, balance of convenience and irreparable loss lies in favour of the plaintiffs if they are not restrained from infringing the patent right of the plaintiffs by marketing the product Rosiglitazone in Pakistan.
The presumption of the exclusive right of use subsists in favour of the plaintiffs, as the defendants rectification obligations are subjudice. Prima facie defendants sought limitation of the patent process arisen out of process patent registered in Pakistan. On account of infringement the patent pieces the plaintiffs are entitled to grant of relief of injunction. There is no controversy on the point that the defendants products are registered with Director General Health, Government of Pakistan. The question of infringement of the patent is altogether a distinct question, which is required to be adjudicated under the related law. The plaintiffs enjoying exclusive right of making selling and using novel invention throughout the Pakistan, which has now reached to point of turning high business the balance of convenience and irreparable loss is also in favour of the plaintiffs.
For the foregoing reasons, the plaintiffs application is hereby granted, consequently, the instant application is allowed and the defendants are restrained during the pendency of the suit, manufacturing, importing or offering for sale pharmaceutical Rosiglitazone.
The observations made hereinabove are tentative in nature and shall not effect the merits of the case.
(Zulfiqar Ahmad Sheikh) Injunction granted.
PLJ 2006 Karachi 73 (DB)
Present: Muhammad Mujibullah Siddiqui & Khilji Arif Hussain, JJ.
Messrs CHENAB FABRICS & PROCESSING MILLS LTD., FAISALABAD—Petitioner
versus
--Respondents
Constitutional Petition No. D-1665 of 2000, decided on 20.10.2005.
(i) Administration of Justice--
----Rights conferred on the citizens under law would not be denied on account of any administrative lapse on the part of any public functionary. [P. 81] C
(ii) Constitution of Pakistan, 1973--
----Art. 199--Customs Act, (IV of 1969)--Ss. 39(c) & 156(1)(17)--Petitioner exported consignment of 100% Cotton Dyed Cloth--Application field for the refund of duty drawback--Dimissed by respondent--Appeal also dismissed by respondent--Assailed--Validity--All the requirements for availing the concession under a S.R.O. are fulfilled, thereafter, a lapse on the part of a tax official in compliance with an administrative order would not have the effect of negating the concession available under the law--Respondents have committed a serious error in rejecting the claim of the petitioner on a frivolous ground which was not sustainable in law--Petition fulfilled all the requirements for availing the rebate/duty draw back on export which had been wrongly withheld by the respondents--All impugned orders passed by respondents set aside being illegal and un-warranted and respondents directed to refund the duty drawback to the petitioner in terms of S.R.Os. Nos. 1083/(1)/90 and 929(I)/92--Petition allowedPp. 81 & 82] A, B, F & G
(iii) Constitution of Pakistan, 1973--
----Art. 199--Procedures and administrative instructions--Substantive rights of citizens--Administrative instructions for carrying out the purposes of law would not be acted in a manner that the mandate of law itself it negated--Procedures and administrative instructions were always devised and issued for the sake of convenience and uniformity and for promoting the purposes of substantive law and not otherwise--Held: Substantive rights of the citizens would not be clarified on the alter of some procedural, administrative instructions, if otherwise the requirements of a beneficial legislation or notifications issued thereunder were fulfilled. [P. 82] D
PLD 1963 S.C. 382.
(iv) Constitution of Pakistan, 1973--
----Art. 199--Concession/exemption notifications--Value of--Normally the concession/exemption notifications issued under the various Tax Statutes are complete code in themselves until and unless provided to be otherwise and concession/exemption is to be allowed on fulfillment of the conditions specified therein and cannot be withheld on the ground of any administrative instructions on the part of tax officials subordinate to C.B.R. [P. 82] E
Mr. Amir Malik, Advocate for Petitioner.
Raja Muhammad Iqbal, Advocate for Respondents.
Date of hearing : 20.10.2005.
Judgment
Muhammad Mujibullah Siddiqui, J.--The petitioner has prayed as follows:--
"(i) The petitioners therefore pray that this Honourable Court may be pleased to hold and declare that;
(ii) The consignment in case was covered under SRO's 1083(1)/90 dated 16.10.1990 and 929(1)/92 dated 28.9.1992 for the purpose of refund of duty drawback as notified in the said SRO's and the actions taken by the respondents their servants, subordinates are illegal void, unwarranted and without lawful authority.
(iii) That the Honourable Court may be pleased to pass an order directing the respondents to refund the duty drawback arbitrarily withheld by the respondents without lawful reason/basis/jurisdiction.
(iv) Declare that the impugned order passed annexure "E to E-2" issued by the respondents to the petitioners are illegal malafide, void.
(v) Direct the respondents to pay the petitioners with the specified period their claim of export rebate, which the respondent arbitrarily withheld without provision of any lawful reason/basis."
The relevant facts stated in the petition are that the petitioner is a limited company engaged in the business of Textile Production and Exports. The petitioner exported consignment of 100% Cotton Dyed Cloth on 22.5.1993. The shipment was examined by the concerned officer of the customs and was found exactly in accordance with the declaration made in the relevant documents and shipping bill. It is alleged that the declaration was accepted and the customs officers on examination of goods were fully satisfied, therefore, the petitioner acquired the entitlement/vested right for the refund of duty drawback under S.R.O. 1083 (1)/90 dated 16.10.1990 and S.R.O 929(1)/92 dated 28.9.1992. The petitioner therefore, after completion of shipment formulates and receipt of Bank Credit Advice from the appropriate bank regarding realisation of the amount, filed refund application on 14.6.1993 before the Respondent No. 5, the Deputy Collector (Exports) Custom House Karachi, for refund of duty.
The respondent instead of finalising the duty drawback claimed in accordance with the directives contained in the two S.R.O's referred to above issued a Show Cause Notice dated 8.3.1995, requiring the petitioner to show cause as to why their claim should not be rejected for the reason that the examination report endorsed on reverse of the quadruplicate copy of the Bill of Exports was not got countersigned by the concerned Assistant Collector of Examination. The Show Cause Notice reads as follows:
Dated : 8.3.1995.
"SHOW CAUSE NOTICE
M/s Chenab Fabrics & Processing Mills, exported a consignment of 100% Cotton Dyed Cloth valuing Rs. 982091/- vide bill of Export No. 57618 dated 22.5.1993 and filed a duty drawback claim bearing SR No. 144563 dated 14.6.1993 under notification SRO No. 1083(I)/90 dated 18.10.1990 and SRO No. 938(I)/92 dated 29.9.1992.
On scrutiny of the documents it revealed that the examination report endorsed on reverse of the quadruplicate copy of the bill of export had not been got countersigned by the concerned Assistant Collector (Examination) although the bill of export had correctly been marked to him by the concerned Principal Appraiser (Examination). The exporters were accordingly asked to get the examination report duly signed by the concerned Assistant Collector, vide this Collectorate's letter of even number dated 4.10.1993. In response thereof vide their letter No. RB/Customs/1994 dated 20.4.1994, they informed that due to over look they could got the needful done before filing of the instant duty drawback claim. They also requested for condonation of this mistake.
From the facts referred to above, it is established that the exporters have contravened provisions of Section 39(c) of the Customs Act 1969 punishable under clause 17 of Section 156(I) of the customs act ibid. Had this gone undetected the Government would have deprived of it's legitimate revenue amounting to Rs. 191056/- is shape of payment of aforesaid duty drawback claim which is otherwise not admissible.
M/s. Chenab Fabrics & Processing Mills are, therefore, called upon to show cause as to why their aforesaid claim should not be rejected being unsubstantiated and why penal action against them should not be taken under the aforesaid provisions of law.
Documentary response/written reply should reach the undersigned within fifteen days from the date of issuance of this notice. Hearing in this case has also been fixed for 27.3.1995 at 10.00 a.m when the exporters or their accredited representative may appear before the undersigned to plead the case. If no one appears on the date of hearing of no reply is received within stipulated time, the case will be decided ex-parte on merits on the basis of available record."
The petitioner replied that under the Law/Appraising Manual proper endorsement of report is liability/responsibility of the appropriate authorities but the respondent instead of following the spirit of mandatory provision of law rejecting the claim vide order dated 19.4.1995 as follows:
"ORDER IN ORIGINAL
M/s. Chenab Fabrics & Processing Mills, exported a consignment of 100% Cotton Dyed Cloth valuing Rs. 982091/- vide bill of Export No. 57618 dated 22.5.1993 and filed a duty drawback claim bearing SR2 No. 144563 dated 14.6.1993 under notification SRO No. 1083(I)/90 dated 18.10.1990 and SRO No. 938(I)/92 dated 29.9.1992.
On scrutiny of the documents it transpired that the examination report endorsed on reverse of the quadruplicate copy of the bill of export had not been got countersigned by the concerned Assistant Collector (Examination) although the bill of export had correctly been marked to him by the concerned Principal Appraiser (Examination). The exporters were accordingly asked to get the examination report duly signed by the concerned Assistant Collector, vide this Collectorate's letter of even number dated 4.10.1993. In response thereof vide their letter No. RB/Customs/1994 dated 20.4.1994, they informed that due to over look they could got the needful done before filing of the instant duty drawback claim. They also requested for condonation of this mistake.
From the facts referred to above, it is established that the exporters have controvened provisions of Section 39 (C) of the Customs Act 1969, punishable under Clause 17 of Section 156(I) of the customs act ibid. Had this gone undetected the government would have suffered a loss of revenue to the extent of Rs. 1,91,056/- in the shape of payment of duty drawback claim which was otherwise not admissible.
M/s. Chenab Fabrics & Processing Mills were called upon the show cause as to why their claim should not be rejected being unsubstantiated and why penal action should not be taken against them under the aforesaid provisions of law. Hearing in this case was fixed on 27.3.1995.
Mr. Muhammad Abdul Majeed, Manager of M/s Chenab Fabrics & Processing Mills Ltd appeared and submitted a written reply dated 27.3.1995 to the Show Cause Notice and reiterated the same arguments as raised in his written reply. Briefly, he stated that due to oversight and rush of work they could not get the examination report endorsed on the reverse of the quadruplicate copy of the Bill of Export countersigned by the concerned Assistant Collector. This examination report relates to 1993 and it is not possible for them to get it now countersigned by the then Assistant Collector. He requested that keeping their goods reputation their claim may be proceeded by condoning mistake which has taken place inadvertently.
I have gone through the case record and also considered the written as well as oral submissions of the exporter. The arguments advanced by the exporter is not convincing. It is, therefore, established that the exporters has contravened the provisions of Section 39(c) of the Customs Act, 1969, punishable under Clause (17) of Section 156(1) ibid. The duty drawback claim bearing SR2 No. 144563 dated 14/6/1993 is, thus, rejected being inadmissible."
The petitioner filed appeal before the Respondent No. 4, Collector of Customs (Appeals) Karachi, which was dismissed, vide order dated 10.1.1996. The petitioner then filed revision application before the Respondent No. 3, Member Judicial C.B.R. which was also dismissed, and hence this petition.
In the Para-wise Comments, the respondents have admitted that the Bill of Export was filed and the goods were examined by the Examination Staff. However, the Examination Report was not countersigned by the Assistant Collector of Customs, as required under Standing Order No. 2 of 1990 dated 30.6.1990. They have produced the copy of Standing Order No. 2 of 1990, issued by the Collector of Customs (Presentive). It is contained in this Standing Order that shipper shall submit seven copies of the shipping bail giving full particulars of the consignments. The original shall be sent to the Valuation Department through the Computer Bureau, duplicate and triplicate copies of the shipping bill shall be returned to H.C.D. The fourth copy shall make the basis of grant of rebate and the seventh copy will be returned to the exporters for their record. The fifth copy shall accompany the sample to Rebate Section and sixth copy sent to Statistical Division. The exporters will make declaration on all copies of the shipping bills to the effect that they will lodge a refund claim for customs duty and sales tax paid on the imported raw material used in the production of the goods and for excise duty on locally manufactured exciseable goods exported out of the country and present for registration. After registration of the shipping bill in the exported, it shall be presented to Appraising Staff who will examine the goods in respect of quantity and quality and other details as required for duty drawback purposes and endorse the same on fourth copy of the shipping bill as well. The Appraising Staff shall carry out the examination of rebateable goods with great care and discrepancy found in the examination report will be dealt with seriously. It is further provided in this Standing Order that after the registration at the Machine Number Counter, since further processing takes more time, the shipping bill is often required by the Clearing Agents for the purpose of `Passed in Full' or payment of duty/cess etc. which should be given back to the agents for their purposes. It is also provided that processing shipping bill shall be completed on the same day they are filed in the section. The processing section shall maintain a register wherein particulars of shipping bills not processed/completed on the same day shall be recorded showing reasons for non-completion. The Assistant Collector, Export, shall inspect this register next morning and shall personally try to resolve the issue and incomplete shipping bills be completed without loss of time. The Standing Order also contains that the examination report particularly those under claims of rebate recorded on the reverse of triplicate and quadruplicate copies of shipping bills should be self contained and comprehensive giving every vital information, that should enable the staff in Rebate Section to finalise duty drawback claims. It is further provided in the Standing Order that the shippers or their agents shall present the duplicate and triplicate copies of the shipping bill alongwith quadruplicate copy to the Inspector Preventive Services on duty. He will retain the duplicate and triplicate copies in the Division and handover the quadruplicate copy to their agents, after endorsing the, "Allow Loading" order on reverse of all the copies. Thereafter it was the duty of the shipper or Clearing Agent to produce before the Divisional Officer Quadruplicate copy of the shipping bill for endorsement. The Divisional Officer shall affix the stamp showing his designation and he should write his name in block letters under his signatures. He will also indicate the actual quantity of the goods shipped on the quadruplicate copy of shipping bill and thereafter quadruplicate copy will be returned to the shippers/agents.
It is further stated in the Para-wise Comments that the Exports, Clearing and Forwarding Agent got the goods examined by the examiner, Appraiser and Principal Appraiser. Finally Principal Appraiser marked the bill of export to the Assistant Collector of Customs but agent did not get it examined by the Assistant Collector which is a mandatory requirement. It is alleged that non-compliance with the mandatory requirements tantamounts to disqualification for the duty drawback claim. The filing of claim for duty drawback and rejection thereof by the Respondent No. 5 is admitted. It is further contended that after filing of duty drawback claim documents were scrutinised and it was found that the goods were not examined by the Assistant Collector of Customs, which was mandatory requirement under clause 25 of the Standing Order No. 2/1990, which provides that the shipment of goods involved less than 14% rebate may be allowed by the Principal Appraiser and for goods involved more than 14% rebate, shipment may be allowed by the Assistant Collector. According to respondents since the Assistant Collector did not examine the goods and endorsement was not made by him on the quadruplicate copy, therefore, duty drawback claim was inadmissible. It is averred that it is sole responsibility of the Exporter or his Clearing and Forwarding Agent to get their goods examined and have the report endorsed on the reverse of the bill of export. Since exporter failed to fulfil a mandatory requirement, duty drawback claim was not admissible and the claim was consequently rejected.
We have heard the learned advocates for the parties.
Mr. Amir Malik, learned counsel for the petitioner has submitted that the claim for refund of duty drawback has been declined on the sole ground that the petitioner failed to get quadruplicate copy of the bill of export counter signed by the Assistant Collector (Examination). He has submitted that the duty drawback claim was preferred in pursuance of notification SRO No. 1083(I)/90 and SRO No. 929(I)/92 dated 16.10.1990 and 28.9.1992 respectively. Admittedly, all the conditions for claiming duty drawback were duly complied with and still the petitioner has been penalised for lapse of a procedural requirement on the part of Assistant Collector of Customs (Examination) which was prescribed in Standing Order No. 2 of 1990, issued by Collector of Customs (Preventive). He has further submitted that the administrative instructions which are procedural in nature issued by he Collector of Customs cannot have the overriding effect, over the S.R.O. issued by the C.B.R. in exercise of powers conferred on it under Section 21 of the Customs Act, 1969. According to learned counsel an administrative order issued by Collector of Customs, who is a subordinate official of C.B.R. by no stretch of imagination can take away a vested right in favour of petitioner created under the SRO issued by the C.B.R, which is apex body in the Tax hierarchy. He has further submitted that once the shipping bill is presented by an exporter, thereafter, it comes a document which is to be handled by the customs officials and the exporter of his agent not being the officials of the Customs Department cannot be saddled with any responsibility for any official act to be performed qua the said document. He has further pointed out that in addition to the fact that the processing of shipping bills is entirely within the domain of the customs official and on account of any lapse on their part, an exporter cannot be deprived of any right accruing under law, even in the administrative instructions contained in Standing Order No. 2/1990, the petitioner was not required to get the fourth copy endorsed by the Assistant Collector. He has taken us through the Standing Order to show that in para 1, it is provided that the shipper shall submit seven copies of the shipping bill giving full particulars of the consignments. The original shall be sent to the Valuation Department thought he computer Bureau, duplicate and triplicate copies of the shipping bill shall be returned to H.C.D, the fourth copy shall make the basis for grant of rebate and the seventh copy will be returned to the exporters for their record. The fifth copy shall accompany the sample to Rebate Section and sixth copy be sent to Statistical Division. The exporter will make declaration on all copies of the shipping bills to the effect that they will lodge a refund claim for customs duty and sales tax paid on the imported raw material used in the production of the goods and for excise duty on locally manufactured exercisable goods, exported out of the country. It is provided in para 2, that after registration of the shipping bill in export department, it shall be presented to the Appraising Staff, who will examine the goods in respect of quantity and quality and other details as required for duty drawback purposes and endorse the same on fourth copy of the shipping bill as well. He has pointed out that under this instruction, the endorsement on the fourth copy is to be made by the Appraising Staff. Under para 5, the processing of shipping bills shall be completed on the same day they were filed in the Section. The Assistant Collector (Export) was required to inspect the register maintained in this behalf next morning and was further required to personally try to resolve the issue in case of any objection. Under para 14, the Examination Reports particularly those under claim of rebate recorded on the reverse of triplicate and qua druplicate copies of shipping bills were required to be self contained and comprehensive giving every vital information that should enable the staff in Rebate Section to finalise duty drawback claims. It is also indicative of the fact that the endorsement and everything else on quadruplicate copy was the duty of the customs officials and not the exporter. Under paragraphs 16 and 25, the shipment of goods involving less than 14% rebate was to be allowed by the Principal Appraiser and the goods involving more 14% rebate was to be allowed by the Assistant Collector. Again it is indicative of the fact that all necessary acts for the purpose of rebate were to be performed by the customs officials. Under para 29, the shippers and their agents were required to present the duplicate and triplicate copies of the shipping bill alongwith the quadruplicate to the Inspector Preventive Services on duty. The duplicate and triplicate copies were to be retained in the Division and the quadruplicate copy was to be given to the agent of exporter after endorsing the "ALLOW LODING" order on reverse of all the copies. According to para 31, it was the duty of shipper of clearing agent to produce the quadruplicate copy before the Division for endorsement Mate's Receipt Number and date over his stamped designation. After doing the needful, it was to be returned to the shipper/agent. He has pointed out that in the Standing Order No. 2 of 1990, it is nowhere provided that the shipper/agent was required to get the endorsement made on the reverse of the quadruplicate. He has submitted that since the genuineness of the claim has not been doubted at all, therefore, the refusal of rebate/duty drawback for the reason that the shipper failed to get the reverse of quadruplicate copy, countersigned by the Assistant Collector would amount to negation of the concession available in law and perpetration of injustice on the basis of some so called practice which is not the requirement of any law.
Mr. Raja M. Iqbal, learned counsel for the respondent has supported the impugned orders but he is not able to rebut the contentions raised by the learned counsel for the petitioner. He is not able to show any law under which a private person can be saddled with the responsibility of getting an act done by a public functionary. The sole contention is that on account of paucity of staff employed in the Customs Departmental the shippers/their agents are asked to take the documents from one official to another and get the process completed.
We find no substance in the contention. The reason being that if the work load is more and the staff employed by the Customs department is less, it is the responsibility of C.B.R. to employee sufficient number of staff to cope-up with the work load.
We are persuaded to agree with the contentions of the learned counsel for the petitioner that once all the requirements for availing the concession under a S.R.O. are fulfilled, thereafter, a lapse on the part of a tax official in compliance with an administrative order shall not have the effect of negating the concession available under the law.
For the foregoing reasons, it is held that the Respondent Nos. 5, 4 and 3 have committed a serious error in rejecting the claim of the petitioner on a frivolous ground which is not sustainable in law. The rights conferred on the citizens under the law should not be denied on account of any administrative lapse on the part of any public functionary. The administrative instructions for carrying out the purposes of law should not be acted in a manner that the mandate of law itself is negated. The procedures and administrative instructions are always devised and issued for the sake of convenience and uniformity and for promoting the purposes of substantive law and not otherwise. The substantive rights of the citizens should not be crucified on the alter of some procedural, administrative instructions, if otherwise the requirements of a beneficial legislation or notifications issued thereunder are fulfilled.
We would like to refer the principle of law laid down by the Hon'ble Supreme Court in the case of Imtiaz Ali v. Ghulam Ali, PLD 1963 SC 382, which has acquired the status of classic principle of law in the administration of justice, which reads as follows:--
".....the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. Any system which by giving effect to the form and not the substance defeats substantive rights is defective to that extent."
We would further like to observe that normally the concession/exemption notifications issued under the various tax statutes are complete code in themselves untill and unless provided to be otherwise and the concession/exemption is to be allowed on fulfillment of the conditions specified therein and cannot be with held on the ground of any administrative instructions on the part of tax officials subordinate to C.B.R.
For the foregoing reasons it is held that the petitioner has fulfilled all the requirements for availing the rebate/duty drawback on export which has been wrongly with held by the respondents. All the impugned orders passed by the respondents are hereby set-aside being illegal and unwarranted. The respondents are directed to refund the duty drawback to the petitioner in terms of S.R.O. Nos. 1083(I)/90 dated 16.10.1990 and 929(I)/92 dated 28.9.1992. The petition is allowed as prayed.
After hearing the learned advocates for the parties on 20.10.2005, the petition was allowed by short order. These are the detailed reasons in support thereof.
(M. Ajmal Rana)0
PLJ 2006 Karachi 82 (DB)
Present: Anwar Zaheer Jamali & Muhammad Ather Saeed, JJ.
MUHAMMAD AFZAL--Petitioner
versus
PAKISTAN INTERNATIONAL AIRLINES CORPORATION, KARACHI--Respondent
C.P. No. 395 of 2005, decided on 28.3.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 47--Execution of decree--Scope of Executing Court--Question of interpretation--Scope of--Executing Court is limited to the extent that it cannot behind the decree, but the fact remains that where in the implementation and execution of a decree the question of its interpretation is involved, then it is for the Executing Court to examine the relevant record to conclude exact nature of the reliefs allowed to a party on the basis of decree framed in a suit. [P. 91] B
(ii) Constitution of Pakistan, 1973--
----Art. 199--Civil Procedure Code (V of 1908), S. 47--Suit for declaration and decreed by trial Court, First Appellate Court and High Court--Execution petition--Objection petition of respondent dismissed by Civil Court--Appeal was treated as revision and allowed--Validity--Plain reading of prayer clause (b) of the decree under execution revealed that it was only the first part of such payer which was declaratory in nature while the consequence of such declaration was incorporated in the second part--Petitioner was entitled to pension and other benefits--Held: Petitioner had succeeded in his prolonged litigation with the respondent but practically he was gained nothing out of its which obviously cannot be his intention in filing the suit, or of Court which had passed the decree in favour of the petitioner in the terms that suit was decreed as prayed"--By virtue of decree under execution petitioner was not only entitled for the sum of Rs. 46000 towards the provident fund but also other lawful benefits of retirement, excluding those which were given up by him--Impugned order declared as without jurisdiction and of no legal effect and the case remanded to the executing Court. [Pp. 91 & 92] C & D
(iii) Duty of Court--
----Multiplicity of litigation should be avoided for mere hypertechnical reasons and further while interpreting a document--Courts instead of giving effect to its form or literal meaning should give more weight to its substance to give effective and substantive reliefs to the parties in litigation. [P. 91] A
2003 SCMR 29; 1994 SCMR 22; 1986 SCMR 1927 ; PLD 1983 Lah. 445; 1979 CLC 446; PLD 1960 Dacca 305; 2004 YLR 1218 and PLD 2005 Lah. 331, rel.
Mr. Qamar Abbas, Advocate for Petitioner.
Mr. Amir Malik, Advocate for Respondent.
Date of hearing : 28.3.2006.
Order
Anwar Zaheer Jamali, J.--The petitioner, an ex-employee of respondent corporation, has preferred this constitutional petition with the prayer that the order dated 22.3.2005 passed by II-Additional District Judge, Malir, Karachi, in Civil Appeal No. 44/2004, (subsequently treated as Revision Application) thereby allowing the said Revision Application and directing the respondent to pay only the decretal amount of Rs. 46,000/- (Provident Fund) alongwith mark up at 6% per annum from 1976 till date within one month, and declining other reliefs allowed to the petitioner by the Executing Court in its order dated 11.10.2004 passed in Execution Application No. 18/2003, may be declared as of no legal effect and without jurisdiction.
"(a) For a declaration that the defendant order contained in letter dated 4.5.1976 is illegal, mala fide, arbitrary and discriminatory.
(b) Declaration that all subsequent proceedings and Orders passed against the plaintiff are illegal and void and the plaintiff is entitled to pension and all other benefits.
(c) Mandatory injunction directing the defendant to accept the resignation of the plaintiff w.e.f. 15th April, 19/6.
(d) A decree against the defendant for a sum of Rs. 68,600/- towards the provident Fund, and for accumulated leave and bonus for the year 1972-73 and a sum of Rs. 10,000/- towards damages for the loss of reputation and mental agony suffered by the plaintiff may be passed against the defendant, and for any other sum found due and payable by the defendant after the trial of the suit.
(e) cost of the suit.
(f) Interest at the rate of 14% may also be granted.
(g) Any other relief which this Honourable Court may deem fit and proper."
Initially, on an application under Order VII, Rule 11 CPC moved by the respondent in this suit on 21.12.1982, plaint in the suit was rejected by the Senior Civil Judge vide order dated 14.3.1983. This order was challenged by the petitioner by way of filing Civil Appeal No. 162/1983 before the District Judge, Karachi. During the pendency of this appeal when question of its maintainability was raised by the respondent on the ground of lack of pecuniary jurisdiction of the Appellate Court, the petitioner/appellant moved an application under Order XXIII, Rule 1 CPC before the Appellate Court, relinquishing his claim for leave and gratuity amounting to Rs. 20,100/- and also for damages amounting to Rs. 10,000/- thereby reducing his claim in the suit to Rs. 46,000/- only for provident fund with other ancillary reliefs. Such application of the petitioner was allowed by the Appellate Court by its order dated 19.7.1984, which was challenged by the respondent though Revision Application No. 204 of 1984 before the High Court, but unsuccessfully, as the said revision application was dismissed vide order dated 10.2.1985. Later on when Civil Appeal No. 162/1983 was heard by the Appellate Court on merits it was allowed, vide order dated 6.8.1986. This order was again challenged by respondent by filing of Revision Application No. 319 of 1986 preferred in the High Court. This revision application was disposed of vide judgment dated 11.10.1987 in the terms that the appellate Court was directed to decide the issue of limitation after allowing opportunities to both the parties. After such order of remand, the Civil Appeal No. 162/1983 (re-numbered as Civil Appeal No. 176 of 1985) was again heard by the appellate Court and allowed vide its judgment dated 6.4.1988. The respondent being again dis-satisfied with such judgment of the appellate Court, thereby setting aside the order of rejection of plaint dated 14.3.1983 and remanding suit to the lower Court for its disposal on merits, preferred yet another Revision Application No. 264/1988 in High Court, which was dismissed vide judgment dated 18.4.1990.
After the above noted first round of litigation with reference to the maintainability of the suit, when the suit proceeded on merits various issues arising out of the pleadings of the parties were framed, parties evidence was recorded, and vide judgment dated 13.12.1993 the suit of the petitioner was decreed as prayed and accordingly decree was framed on 20.1.1994, in terms of the prayers made in the amended plaint filed in the suit, which reads as under:
"Plaintiff prayed as under:--
(a) For declaration that the defendant order contained in letter dated 4.5.1976 is illegal, mala fide, arbitrary and discriminatory.
(b) Declaration that all subsequent proceedings and orders passed against the plaintiff are illegal and void and the plaintiff is entitled to pension and all other benefits.
(c) Mandatory Injunction directing the defendant to accept the resignation of plaintiff with effect from 15th April 1976.
(d) To pass a decree against the defendant in the sum of Rs. 46,000/- towards Provident Fund.
(e) Grant cost of the suit.
(f) Interest at the rate of 14% may also be granted.
(g) Any other relief which this Court may deem fit and proper.
This suit is coming up for final disposal on this 13th day of December 1993 before Mr. Inderyas Barkat, Ist Senior Civil Judge, Karachi East, in presence of both parties counsels.
It is ordered that the suit of the plaintiff is hereby decreed as prayed with Cost."
In the appeal preferred by the respondent, being civil Appeal No. 4/1994, judgment and decree passed in Suit No. 1296/1982 were maintained and consequently appeal was dismissed vide judgment dated 17.9.1997. The respondent being dissatisfied with the concurrent findings of the two Courts below, preferred Civil Revision Application No. 45/1998 in the High Court, which was also dismissed vide judgment dated 21.4.2002.
Before the Executing Court when the matter came up for execution of decree passed in Suit No. 1296/82, which had already attained finality upto the level of High Court, objections were filed on behalf of judgment-debtor/respondent. The Executing Court by its order dated 11th October 2004 rejected such objections and allowed the execution application with directions to the Nazir of the Court to calculate the sums in terms of the decree and issuance of writ of attachment accordingly. When the writ of attachment was issued for recovery of decretal amount in the sum of Rs. 31,68,390/-, the respondent preferred Misc. Civil Appeal, before the learned II-Additional District Judge, Malir, challenging the quantum of decretal amount claimed by the petitioner in the execution application. The crux of the case of the respondent was that the money decree passed in the suit is only in the sum of Rs. 46,000/-, therefore, on the basis of other declaratory decree in the suit, petitioner was not entitled to recover any sum more than the one specifically contained in the decree. The appellate Court treating the misc, appeal as revision application and agreeing with the contentions of the respondent, allowed the Revision Application by its impugned order.
Mr. Qamar Abbas, learned counsel for petitioner in his arguments made reference to the chequered, history of litigation between the parties, commencing from the year 1982. He made particular reference to the prayers made in the amended plaint of the suit and contended that relief prayed for as per clause (b) of the plaint, which was granted by the Civil Court and maintained upto the level of High Court, contained not only declaration that all subsequent proceedings and orders passed against the petitioner were illegal and void but also other consequential relief that the petitioner was entitled to pension and all other benefits. He contended that in view of such executable nature of decree the petitioner at the time of filing of execution application rightly calculated and mentioned his upto date claim of pension and other benefits which are recoverable from the respondent in term of the said decree. To reiterate the stand of the petitioner about his total claim allowed by the Executing Court in relation to his pension from the date of retirement and other permissible allowances. Mr. Qamar Abbas also referred various documents to show that on facts respondents are unable to controvert such claim of the petitioner being based on their own documents and record.
Learned counsel also placed on record photostat copies of judgments in the following cases to fortify the case of the petitioner:
(i) Syeda Tahira Begum and another v. Syed Akram Ali and another (2003 SCMR 29).
(ii) Mst. Naseem Akhtar and Four others v. Shalimar General Insurance Company Ltd. and two others (1994 SCMR 22).
(iii) The Administrator Thal Development & another v. Mehboob Ali Khan (1986 SCMR 1927)
(iv) Abdul Khaliq v. Haji and another (PLD 1983 Lahore 445).
(v) Ali Hussain v. Rafiquddin & nine others (1979 CLC 446).
In the first case Hon'ble Supreme Court, dilating upon well recognized principles of administration of justice observed that the technicalities of law should not obstruct the way of justice as rules of procedure are framed to foster the cause of justice and not otherwise. In the second case, it was held by the Hon'ble Supreme Court that the defendants in execution proceedings could not take up plea, which they had not taken before the trial Court during the course of hearing of suit, which was ultimately decreed and decree became final. It was further observed that once a decree was passed it had to be executed in its terms and it was not open to Executing Court to go behind it and re-determine the liability of parties. In the third case, it was observed by the Hon'ble Supreme Court that contumacious refusal of authority in discharge of statutory duties provided justification to employee of invoke constitutional jurisdiction of High Court, therefore, case of employee was not one of merely enforcing a declaratory decree by means of a constitutional petition. Based on such view, it was held that the petitioner was entitled for reinstatement and arrears of pay. In the fourth case it was observed by the learned single Judge of Lahore High Court that finding on issue even if in favour of the respondent is of no use to them because what has to be executed, is not particular finding of trial Court but decree which was ultimately passed and not interfered with by any higher forum. It was further held that the decree deserves to be executed as it is, regardless of findings of trial Court on issue in question. In the fifth case it was observed by learned single Judge of Lahore High Court that Executing Court was bound to execute the decree and it was not empowered to decide any matter derogating from execution, except where specific jurisdiction conferred by law, such as by section 47 or order XXI, Rules 58 and 97 to 103 of CPC. It was further held that there was no scope for the Executing Court for invoking inherent powers under Section 151 CPC.
In reply to the submissions of Mr. Qamar Abbas, Mr. Amir Malik, learned counsel for respondent, did not dispute the previous record of litigation between the parties and the fact of finality of the decree in Suit No. 1296/1982 passed in favour of the petitioner. To dispute the claim of the petitioner, the main arguments of Mr. Amir Malik are that the declaration sought in prayer clause (b) of the suit could not be stretched to the extent of covering the pension benefits and other permissible allowances of the petitioner against the respondent in the form of money decree till this date, as such declaratory decree under the provisions of Specific Relief Act was not executable and for further relief of recovery of such sums, the petitioner had to file a fresh suit. In support of his arguments, learned counsel placed reliance upon the following cases:
(a) Gladstone Wyllte & Co. Ltd. v. Badshah Miah (PLD 1960 Dacca 305);
(b) Salma Akhtar Bhatti v. Mehboob Qadir Shah & Five others (2004 YLR 1218).
(c) Muhammad Ali v. Zakir Hussain (PLD 2005 Lahore 331).
In Galdstone's case it was held that a declaratory decree obtained in the suit was not executable. In Salma Akhtar Bhatti's case, the learned single Judge dilated upon various kinds of decrees and their execution and held that declaratory decree is not executable, while prohibitory decree can be executed only when it is violated. In Muhammad Ali's case it was held that the Executing Court must take the decree as it stands and cannot make any alteration or modification therein. The executability of decree is to be judged in the manner it is drawn and the Executing Court cannot go behind the decree.
While concluding with his submissions. Mr. Amir Malik supported the impugned order passed by the Appellate Court and contended that since the Executing Court cannot go beyond the decree, therefore, under the grab of mere declaration sought by the petitioner in his suit, he cannot claim the recovery of sums mentioned in the execution application/subsequent statement, in excess to the sum of Rs. 46,000/- only for which the suit was valued by the petitioner after withdrawal/deletion of certain other reliefs at the appellate stage.
In order to examine respective contentions of parties counsel in more comprehensive manner and for convenience sake, it will be useful to reproduce hereunder the statement of account submitted by the petitioner before the Executing Court, which according to him, is covered by prayer clause (b) of the decree framed in the suit:
Monetary value of claim under Decree by Ist Senior Civil Judge Karachi (East) in Suit No. 1290 of 1992 read with Civil Revision No. 45 of 1998 Interest
at 14% p.a.
Specified claims which may be verified by summoning PIA
(I) (b) Pension estimated by plaintiff at Rs. 662.50 per month from 15.4.1976 to 31.12.2002 26 years 8 months and 15 days 212,994 383,336 Calculation attach
pension entitlement on service of 15 years for SR FE 1 plus 25% increase negotiated in 1971 as per F.E.N.A. agreement with PIA per schedule. Annexure I
(b) Other benefits
1. Bonus for the year 1972-73 Proportionate - say Annexure 2 2,738 10,267 26 years 9 months 15 days to 31.1.2000
2. Accumulated leave which could not be availed due to PIA's operational requirements 293 days compensation @ Rs. 3,650 pm 35,648 133,703 26 years 9 months 15 days to 31.1.2000
Evidence of unavailed leave Annexure 3
II (d) Provident Fund contribution by self and PIA estimated by plaintiff kept by Provident Fund Trustees invested per Fund Rules 73,000 273,794 26 years 9 months ____________ ______ 15 days to 31.1.2000
Annexure 4 specified at 324,380 801,099 Rs. 46,000 in the decree ___________ _______
Unspecified claims which may be Require negotiations with PIA
(b) Other benefits
1. Value of leave passage entitlement for self and family members during, service which could not be availed as leave declined by PIA 6 members family at Rs. 3,000 for six members per leave i.e. 9 times Karachi/ London/Karachi 162,000 607,597 26 years 9 months 15 days to 31.1.2000
2. Value of free annual passage
Since 1977 to 2002 - 26 times for self and wife and 2 unmarried daughters at average cost of Rs. 10,000 per passage per annum KYC/LON/KYC 1,040,000 waived
for two sons 31 passages at Rs. 7,500 per passage KYC/LON/KYC 232,500 waived
___________ _______ 1,434,500 607,597 ___________ _______
Total Specified benefits 423,380 Interest on specified benefits 801,099 1,125,479 _________
Unspecified claims 1,434,500 Interest on unspecified claims 607,597 2,042,097 _________
Legal costs 813
____________ 3,168,389 ____________
In the next column, unspecified claims, which require negotiations with PIA have been mentoined in the sum of Rs. 14,34,500/- with corresponding mark up at the rate of 14% per annum on one head of account amounting to Rs. 607,597/-.
There is no cavil to the proposition of law canvassed by Mr. Aamir Malik on behalf of respondent that the Executing Court cannot go behind the decree. Keeping in view this settled principle of law, the crucial point for consideration before us is that whether the prayers made in the prayer clause (b) of the amended plaint, are merely for declaratory decree not executable one, or only its first part "declaration that all subsequent proceedings and orders passed against the plaintiff are illegal and void" is declaratory in nature, while the second part of the prayer "and the plaintiff is entitled to pension and all other benefits" is in the form of consequential money decree executable under the law. In this regard, the view taken by the Executing Court of learned Senior Civil Judge Malir in its order dated 11.10.2004 was that in terms of the decree under execution, the petitioner is entitled for the claims, which form part of the statement of claim submitted before the Executing Court, while the Revisional Court came to the contrary conclusion and thereby disallowed all further claims of the petitioner as per their statement filed before the Executing Court. Not only this but for no reasons the interest at 14% per annum allowed in terms of prayer clause (f) of the decree was also reduced to 6% per annum.
On merits of the claim of the petitioner against the respondent. Mr. Aamir Malik could not advance any other arguments except that for recovery of such claims the petitioner should have filed separate suit or that the claim submitted by the petitioner before the Executing Court is factually incorrect and highly exaggerate one.
In our opinion, it should always be the approach of the Courts of law that multiplicity of litigation should be avoided for mere hyper-technical reasons, and further while interpreting a document, the Courts instead of giving effect to its form or literal meaning should give more weight to its substance to give effective and substantive reliefs to the parties in litigation. Both the learned counsel are in agreement on the well recognized proposition of law that the scape of Executing Court is limited to the extent that it cannot go behind the decree, but the fact remains that where in the implementation and execution of a decree the question of its interpretation is involved then it is for the Executive Court to examine the relevant record to conclude exact nature of the reliefs allowed to a party on the basis of decree framed in a suit. As observed above, plain reading of prayer clause (b) of the decree under execution reveals that it was only the first part of such prayer, which was declaratory in nature, while the consequence of such declaration was incorporated in the second part, that the petitioner is entitled to pension and other benefits. If we agree to the arguments of Mr. Aamir Malik that the decree under execution to the extent of prayer clause (b) is only declaratory in nature, it will mean that though the petitioner has succeeded in his prolonged litigation of over twenty years with the respondent but practically he has gained nothing out of it, which obviously cannot be his intention in filing of the suit, or of the Court which has passed the decree in favour of the petitioner in the terms that "suit is decreed as prayed". Thus, we are of the considered opinion that by virtue of the decree under execution, the petitioner is not only entitled for the sum of Rs. 46,000/- towards the provident fund as prayed in the prayer clause (d) of the decree but also other lawful benefits of retirement, excluding those which were given up by him in terms of his application under Order XXIII, Rule 1 CPC dated 18.7.1984 moved before the Appellate Court in Civil Appeal No. 162/1983.
Insofar as the entitlement of the petitioner for the actual monetary claim to be worked out on the basis of decree under execution is concerned, we find substance in the submission of Mr. Aamir Malik that unilateral statement of account submitted by the petitioner before the Executing Court cannot be accepted by the Executing Court without calling upon objections from the respondent and verification of such claim in a judicious manner. Even as per statement of claim submitted by the petitioner, the second part of his claim under the head "unspecified claims" is dependent upon his negotiations with the respondent. Thus, such claim is yet to be adjudged and determined by the parties through negotiations.
For the foregoing reasons we declare the impugned order dated 22nd March 2005 passed by the Court of II-Additional District Judge Malir in Civil Appeal No. 44/2004 as without jurisdiction and of no legal effect and remand the case to the Executing Court with the directions to invite fresh objections from the respondent to the statement of monetary claim submitted by the petitioner in the executing proceedings. If deemed appropriate, a Commissioner be appointed for this purpose at the cost of the decree-holder to be added towards the cost of execution application and upon submission of final adjudged claim of the petitioner/Decree-holder, necessary Court fee be recovered on the said amount and further execution proceedings be held for the satisfaction of decree under execution in terms thereof. It is expected that such exercise will be completed within three months from the date of this order.
(M. Ajmal Rana) Case remanded.
PLJ 2006 Karachi 93 (DB)
Present: Mushir Alam & Azizullah M. Memon, JJ.
MUHAMMAD HANIF KHAN--Petitioner
versus
PROVINCE OF SINDH, SECRETARY LAND UTILIZATION DEPARTMENT SINDH SECRETARIAT, KARACHI and 8 others--Respondents
C.P. No. D-1229 of 2005, decided on 11.5.2006.
(i) Constitution of Pakistan, 1973--
----Art. 23 & 24--Land Acquisition Act, (I of 1894), S. 4--Right of property--No person could be deprived of his property in accordance with law--Land Acquisition Act, 1894 is one of such law under which a person could be deprived of his personal property, provided of cause, it is acquired or sought to be acquired "for public purpose" and only in manner as provided therein. [P. 95] B
(ii) Land Acquisition Act, 1894 (I of 1894)--
----Ss. 4, 6 & 45--Constitution of Pakistan, 1973, Arts. 23 & 24--Acquisition of land--Notification published in official Gazette without issuance of notice to petitioner/land owner--Issuance of notification challenged by petitioner--Validity--Where record owner of the land, proposed to be acquired, is associated and known, then notice to such person is necessary--Respondents conceded that petitioner might file his objection within 30 days and controversy as to vires of notification and mala fide could be raised and examined by the authority under the Land Acquisition Act--Since the respondents have conceded to such right of the petitioner, High Court did not deem it necessary to engage ourselves into controversy as raised in the petition as to vires of impugned notification--Petition disposed of. [P. 95 & 96] A, E, H, I & J
(iii) Land Acquisition Act, 1894 (I of 1894)--
----Ss. 4, 6 & 45--Acquisition of land--Publiction of Gazette notification--Purpose of--Purpose of publication of gazette notification is to inform person affected and the public at large for the proposed acquisition of land for public purpose--Held: In order to comply with the requirement of principle of natural justice, at the time of publication and issuance of notification u/Ss. 4, 6 & 46 of the Land Acquisition Act might also be served on the record owners or on the affected person. [Pp. 92 & 96] C & G
(iv) Obiter Dictum--
----It is common knowledge that publication and circulation of Official Gazette is limited and usually confixed to meet the statutory requirement of law--It has come to notice that, at times not many persons, were aware of the important and valuable information that a Gazette Notification tends to communicate and dispense--Limited access and circulation of official gazette notification at the time defeat the principle of natural justice and frustrate the very object of law. [P. 96] F
(v) Principle of Natural Justice--
----Applicability--No person could be condemned unheard and no person could be divested of property without due course of law--Principle of natural justice is deemed to be imbedded and enshrined in every statute unless expressly excluded. [P. 95] D
Mr. Farrukh Nasim, Advocate for Petitioner.
M/s. Saalim Salam Ansari, Mukhtair Ahmad Kober and Irfan G. Ali, Advocates for Respondents.
Mr. Manzoor Ahmad, Advocate for CDGK.
Ch. Rafiq Rajveri, A.A.G.
Date of hearing : 11.5.2006
Order
Mushir Alam, J.--Petitioner has impugned the notification dated 23.2.2005 under Section 4 of the Land Acquisition Act, inviting objections as to acquisition of Petitioner's land. Mian Trust of the arguments of the learned counsel for the Petitioner appears to be that the Petitioner is the owner of the subject property, right was perfected pursuant to the orders passed in Suit No. 1201/98.
It is stated that earlier attempt of the Respondents numbers, 8 and 9 to acquire the private property of the Petitioner was successfully defeated in Suit No. 1201/1988. Claim of the Petitioner was sustained in HCA No. 88/01, copy of the judgment is available at page 291.
It is urged by the learned counsel that, after being unsuccessful in attaining their designs to deprive the Petitioner from the subject property. Respondents Nos. 8 & 9 have used armed forces as a cloak and conduit to deprive the Petitioner of their property. According to him, impugned notification is motivated aimed at personal aggrandizement of officers of NLC. It is urged that, in terms of the notification, where under NLC was established, it is clearly specified that the NLC could acquire the land through specified mode namely rent, purchase or lease, as reflected in the orders of the Court available at page 207 @ page 221). It is stated that the land is being acquired in a dubious manner as no notice was issued to the petitioner, impugned notification was got published in a surreptitious manner in gazette. According to the learned counsel such clandestine mode of acquiring the property is violative and prejudicial to the fundamental rights to property guarded in terms of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973. It was urged that, rights as guaranteed under the constitution are jealously guaranteed by the Court. It is further urged that sufficient land in the vicinity and area around the Petitioner's land is available and resting with Provincial Government, which could have been easily acquired. It is urged that some of the officers of the NLC have made it a matter of ego, and at all cost want to deprive the Petitioner of his land. In support of his contention he has placed reliance on a case reported as Abdul Ghani and Another v. Province of Balochistan 2 and others (PLD 1992 Quetta 63), the Court did not approve the land acquisition proceedings without service of Notice on the person effected in another case reported as Mst. Surayya Aziz v. Collector, Lahore District, Lahore and 2 others (2003 CLC 1510), when the acquisition of land under MLO was successfully defeated, subsequent resort to acquire land under the Land Acquisition Act, was held to be motivated under the garb of public interest.
Dr. Farough further points out that the limitation of 30 days to file objection had long lapsed as the Petitioner was not served any notice nor was aware of the impugned Notification.
Mr. Saalim Salam Ansari, learned counsel appearing for the Respondents Nos. 8 & 9 contended that no personal notice on the petitioner is required, the notification has been issued in due compliance of Section 4 of the Land Acquisition Act. When the attention of the learned counsel was drawn to Section 45 of the Land Acquisition Act, he conceded that no personal notice was served. He however, without contesting the matter further, on instructions submits that the Petitioner may file his objection within 30 days from today and controversy as to vires of notification and mala fide could be raised and examined by the authority under the Land Acquisition Act.
Mr. Manzoor Ahmed learned counsel for CDGK is also of the similar view.
Right to property is valuable right guaranteed under Articles 23 and 24 of the Constitution of Pakistan. No person could be deprived of his property save in accordance with law. Land Acquisition Act, 1894 is one of such law under which a person could be deprived of his personal property, provided of course, it is acquired or sought to be acquired "for public purpose" and only in manner as provided therein. Action as to acquisition and or "public purpose" is justifiable. Publication of the Notification in the official gazettes, though sine qua non for assumption of jurisdiction under the Land Acquisition Act, it is first step towards acquisition. Purpose of publication of gazette Notification is to inform person effected and the public at large for the proposed acquisition of land for public purpose. It is now a settled principal of law that no person could be condemned unheard and no person could be divested of property without due course of law, principals of natural justice is deemed to be imbedded and enshrined in every statute unless expressly excluded. Where the recorded owner of the land, proposed to be acquired, is ascertained and is known, then notice to such person is necessary, publication of Notification in official gazette meets only the extrinsic and not the intrinsic requirement of law. It is common knowledge that publication and circulation of Official Gazette is but limited and usually confined to meet the statutory requirement of law. It has come to notice that, at times not many persons are aware of the important and valuable information that a Gazette Notification tends to communicate and dispense Limited access and circulation of official gazette notification at times defeat the principal of natural justice and frustrate the very object of law. In order to comply with the requirement of principal of natural justice, at the time of publication and issuance of Notification under Section 4 and or 6 ibid notice under Section 45 of the Land Acquisition Act may also be served on the recorded owners or on the affected person.
Object of Land Acquisition Act, is not to deprive a person from his property-right without due process of law. One of the essential intrinsic requirements of principal of natural justice is to give proper and meaningful opportunity to the affect person to challenge and object to the proposed or likely acquisition of land under the Act of 1894.
Since the respondents have conceded to such right of the petitioner, we do not deem it necessary to engage our selves into controversy as raised in the petition as to vires of impugned Notification therefore, the Petition is being dispose off in the following terms:--
(1) Petitioner shall file his objection to the impugned notification dated 23.2.2005 within 30 days from the date of passing of this date.
(2) Petitioner shall be entitled to challenge the impugned notification and may raise all objections as raised in this petition or any other objections as may be available to him under the law.
(3) The authority concerned shall pass appropriate speaking orders dealing with all objections as may be raised by the petitioner, after providing opportunity of being heard to the petitioner, personally or through his counsel/representative strictly in accordance with law.
(4) The authority shall decide the objections preferably not later than 60 days from the date of filing of the objections.
(5) Till passing of the order and or final determination of the rights of the petitioner's subject to appeal as may be permissible under the law the respondents shall not take any coercive action against the petitioner nor disturb his possession.
(6) Petitioner shall also not create any third party interest nor shall change the complexion of the property till final determination of controversy in land acquisition Act.
Petition in terms of the above disposed of with no order as to costs.
(M. Ajmal Rana) Petition disposed of.
PLJ 2006 Karachi 97
Present: Khilji Arif Hussain, J.
MUHAMMAD MATLOOB and 10 others--Plaintiffs
versus
JAMSHED K. MARKER and 2 others--Defendants
Suit No. 1048 of 2005, decided on 10.5.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXIX, Rr. 1 & 2--Contract Act (IX of 1872), S. 10--Interim injunction, grant of--Valid agreement--Prima facie--Question of--No binding contract between the parties thus existed--Plaintiff, therefore, failed to establish prima facie case in his favour for the grant of injunction--Question whether parties reached a concluding contract or not depended upon the fact whether the parties were of one mind and all material terms were finalized between them and they intended that the matter was closed and concluded between them--High Court declined to grant interim injunction and application was dismissed. [Pp. 102 & 103] F & G
Contract--
----Principles--Converting proposal into contract--Fundamental terms--Intention of the parties--In order to convert a proposal with binding contract, acceptance of proposal must be absolute and unqualified--Existence of a consensus ad idem with regard to all fundamental terms of the contract must be shown--Whether an agreement is a completed bargain or merely provisional agreement depends on the intention of parties as deducible from language used while negotiations take a contract shape and whether the intention to have formed document drawn up postponed the formation of contract depends on the circumstances of each case. [P. 100] C
Contract Act, 1872 (IX of 1872)--
----S. 10--Valid contract--Contract if it is made by free consent of the parties--Essential condition--To constitute a valid contract between parties one of the essential condition is that consensus ad idem must exist between the parties with regard to all the terms of contract and in case of any ambiguity, the same can adversely reflect about existence of the contract. [P. 100] A & B
Contract Act, 1872 (IX of 1872)--
----S. 10--Constitution of Pakistan, 1973, Art. 199--Valid contract--Receipt, whether a valid contract--Receipt can be termed as a contract if on going through the receipt, four components to form an agreement can be spelt out without any ambiguity i.e. one identification of seller and purchaser, two sale consideration amount, three identification of property to be sold, and parties to agreement to sell of the disputed property are at consensus ad idem. [P. 100] D
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2--Injunction, grant of--Valid agreement--Plaintiff relied upon a receipt acknowledging payment of cheques to defendants--Contention of--Receipt was a valid contract as it was signed by the defendants and it was made out from the receipt that the amount was paid in consideration of sale of the suit property--Plea of defendants was that the cheques were not got encashed and were subject to maturity of the proposal--Validity--Cheques would be encashed only on reaching agreement of sale--At the time of execution of receipt, parties were not intended to sell the property but would like to enter into an agreement at subsequent date was established. [P. 102] E
1989 MLD 1317 and PLD 1956 (WP) Kar. 521 disting. PLD 1986 Kar, 358; PLD 1956 Kar. 521; PLD 1976 Kar. 458; PLD 2006 Kar. 108; 2002 CLD 218; AIR 1956 Allahabad 725; 1996 CLC 1758; (1931) 2 Chancery Division 307 ref.
Mr. Ghulam Ali Khokhar, Advocate for Plaintiffs.
Mr. Bilal Shaukat, Advocate for Defendants.
Date of hearing: 10.5.2006.
Order
Khilji Arif Hussain, J.--For the purposes of disposing of the application under Order XXXIX, Rules 1 and 2, C.P.C. brief facts of the case are that on 30-9-2004 Attorney of the Plaintiff alongwith the Legal Advisor Mr. Muhammad Younis Memon, Advocate met with Defendants Nos. 1 and 2, both Trustees of F.N.E. Dinshaw Trust to purchase Immovable Trust Property Bearing No. 25, SB-6 admeasuring 867 and 3/4 square yards situated at Zaib-un-Nisa Street Saddar, Karachi in consideration of Rs. 85,000,000 (Rupees Eighty Five Million), and handed over 11 undated cheques of Rs. 80,000,000 (Rupees Eighty Million only). Out of these 11 cheques five cheques were issued in the name of Defendant No. l amounting to Rs. 40,000,000 and six cheques of Rs. 40,000,000 in the name of Defendant No. 2 and they wrote receipt which according to the plaintiff is an agreement of sale in respect of the property in question. It is alleged that after entering into the agreement of sale on 30-9-2004 defendants have to complete the sale transaction by executing and getting deed of conveyance registered but in spite of many requests made to them by the plaintiff's attorney and their Legal Adviser the defendants are avoiding to perform their part of obligation whereas the plaintiffs are ready and willing to pay Rs. 5,000,000 being the balance amount of sale consideration. It is alleged that Defendant No. 3 is the third trustee of F.N.E. Dinshaw Trust, and Defendant No. 2 is her constituted attorney.
Defendants filed counter-affidavit to the listed-application and denied that they agreed to sell the property in question to the plaintiffs while raising preliminary objection about the maintainability of the suit. It was further stated that the parties being unable to finalize terms of sale therefore no agreement of sale has been executed and the Note/Receipt Annexure A filed alongwith the plaint cannot be treated as an agreement between the parties.
Heard Mr. Ghulam Ali Khokhar, learned counsel for the plaintiffs, and Mr. Bilal Shaukat, learned counsel for the defendants.
Mr. Ghulam Ali Khokhar, learned counsel for the plaintiff, vehemently argued that the receipt Annexure A filed alongwith the plaint is an agreement between the parties by which defendants agreed to sell the property in question in favour of the plaintiff in total sale consideration of Rs. 85,000,000. Learned counsel for the plaintiff argued that description of the property has been given in the receipt and defendants acknowledged receipt of Rs. 80,000,000, which, in fact, is an agreement of sale between the parties as the said receipt (Annexure A) is clearly a receipt of payment in which names of purchaser and seller are mentioned alongwith the description of the properties and their price and merely because formal agreement of sale could not be entered into between the parties, will not disentitle the plaintiff to ask for performance of the agreement. The receipt (Annexure A) by itself is an agreement of sale between the parties. In support of his contention the learned counsel relied upon the case Mst. Najma Rana v. S. M. Maroof (1989 MLD 1317), Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan (PLD 1956 (WP) Kar 521), Mobinul Haq Siddiqi and another v. Mrs. Hajra Farooqo and 3 others (PLD 1986 Kar, 358), Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan (PLD 1956 Kar. 521) and Province of West Pakistan v. Gammon's Pakistan Ltd. Karachi (PLD 1976 Kar. 458).
Mr. Bilal Shaukat, learned counsel for the defendant, in reply to the arguments argued that the receipt dated 30-9-2004 cannot be termed as an agreement between the parties as the parties had not reached to a concluding contract at any point of time. The said receipt at the most can be termed as an understanding between the parties to enter into an agreement of sale, if so agreed. Learned counsel further argued that undated cheques were handed over in Trust to defendants by the plaintiffs, were not encashed by the defendants, which also clearly demonstrate that the parties had not entered into an agreement of sale of the property in question. Learned counsel further argued that all the Trustees are not parties to receipt in question which according to the plaintiff, is an agreement of sale is not binding upon the defendants as section 48 of the Trust Act required that all the Trustees must act jointly. In support of his contention, he relied upon the case of Muhammad Kamran Khan v. F.N.E. Dinshaw Trust (PLD 2006 Kar. 108), Al-Huda Hotels and Tourism Co. and others v. Paktel Limited and others (2002 CLD 218), Seth Banarsi Dass v. Cane Commissioner UP and another (AIR 1956 Allahabad 725), Khayaban-e-Iqbal (Pvt) Ltd and others v. Mustafa Haji Muhammad (1996 CLC 1758), Riley and another v. Troll (1953 AELR 966).
I have taken into consideration respective arguments advanced by the learned counsel for the parties and also gone through the record. In terms of Section 10 of the Contract Act provided that all agreements are contracts if they are made by the free consent of the parties competent to contract, for the lawful consideration and with a lawful object and are not hereby expressly declared to be void. To constitute a valid contract between the parties one of the essential condition is that consensus ad idem must exist between the parties with regard to all the terms of the contract and in case of any ambiguity, the same can adversely reflect about the existence of the contract.
In order to convert a proposal with binding contract the acceptance of a proposal must be absolute and unqualified there must be shown to exist a consensus ad idem with regard to all the fundamental terms of the contract, where an agreement is a completed bargain or merely provisional agreement depends on the intention of the parties as deducible from the language used while negotiations take a contract shape and whether the intention to have formed document drawn up postponed the formation of the contract depends on the circumstances of each case.
Keeping in view this principle of law now I would like to examine whether receipt Annexure A can be termed as an agreement between the parties to sell the property in question. Before proceeding further I would like to make it clear that a receipt can be termed as a contract if on going through the said receipt, four components to form an agreement can be spelt out without any ambiguity i.e. (i) identification of seller and purchaser, (ii) sale consideration amount, (iii) identification of property to be sold, and (iv) that parties to agreement to sell the property in question are at consensus ad idem.
The receipt Annexure A-1 which according to the plaintiff is an agreement of sale between the parties provided that Defendants Nos. 1 and 2 received 11 undated cheques out of which Defendant No. 1 received five cheques for total amount of Rs. 40,000,000 and Defendant No. 2 received six cheques for total amount of Rs. 40,000,000. The receipt further provided that:
"the cheques shall be retained in Trust of the Defendants Nos. 1 and 2 and shall only be encashed on reaching the agreement of sale of the property 867 and 3/4 square yards."
From the above receipt Annexure A it is clear that the plaintiff handed over cheques "in trust" to Defendants Nos. 1 and 2 with specific understanding that the same will be encashed on reaching the agreement of sale. This phrase in the receipt that "cheques will be retained in trust to be encashed on reaching the agreement of sale" clearly established that the parties at the time of execution of the receipt wanted to do something more to enter into an agreement of sale till such time defendants undertook that they will not encash the cheque, which fact . was further established from the conduct of the parties that on the date of execution of said receipt i.e. 30.9.2004 till dated cheques were not encashed by the defendants and after about four months of issuance of receipt and handing over undated cheques for the first time plaintiff's attorney addressed a letter to Defendant No. 1, called upon him to complete the bargain in respect of the property in question. The defendant alongwith his written statement placed on record letter dated 1-10-2004 addressed to Mr. Muhammad Younis Memon, Advocate, Legal Adviser of the defendant that if for any reason whatsoever the Trustees of F.N. Dinshaw Trust cannot reach an agreement of sale for the building to you or to any of your nominees the cheque will be returned uncashed. Legal Adviser of the plaintiff filed his personal affidavit that such letter was not received by him.
Mr. Ghulam Ali Khokhar, learned counsel for the plaintiffs, relied upon the case of Mst. Najma Rana (supra), where the learned Judge of this Court accepted "receipt" as an agreement, but facts of the said case are distinguishable. In the case of Mst. Najma Rana (supra), the seller admitted that he had received a sum of Rs. 10,000 as part consideration of sale, but since purchase did not abide by the commitments in the receipt and asked for adjustment of sale consideration towards rent on the basis of these facts learned Judge vacated the order of status quo. In the case of Mrs. Parveen Begum (supra), it has been held that for the purpose of deciding the question whether or not a temporary injunction should be issued, the Court will not go into nice question, whether in a suit for specific performance, the defendant's son, who had negotiated the transaction of sale of plot of land with plaintiff, who had received the earnest money by cheque which defendant had actually encashed have authority or not. It was held that it is difficult to draw a line between the scope of authority conferred on Raja Mahboob Asghar and on the basis of these facts held that plaintiff made out a prima facie case.
The facts of the case are distinguishable as in the instant case cheques received by the Defendants Nos. 1 and 2 have not been encashed by the defendants towards sale consideration whereas in the case of Mrs. Parveen Begum (supra)(sic).
In the case of PIDC (supra), learned Judge relied upon the case of Hatzfeltit-Wildenburg Alexander, (1912) 1 Ch. 284, 288, it was held that:
"It appears to be well-settled by the authorities that if the documents or letter relied on as constituting a contract contemplated the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognize the contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored."
Be that as it may, since receipt by itself provided that cheques will be encashed only on reaching agreement of sale clearly established that at the time of execution of the receipt parties were not intended to sell the property but would like to enter into the agreement at subsequent date.
In the case of Al-Huda Hotels and Tourism Co. and others v. Paktel Limited and others (supra), 2002 CLD 218, identical question came under consideration before this Court. Brief facts of the said case were that the parties entered into negotiations for sale and the transfer of (he shareholdings owned by one of the defendants. It is claimed that the oral agreement was reduced into writing through a letter and accordingly a letter dated 10-12-1999 was sent by which the terms of agreement for confirmation which was returned by Defendant No. 2 with certain handmade changes whereafter Defendant No. 2 accepted the offer letter through its covering letter dated 15-12-1999. The letter contained a condition on its top, which read as "subject to contract" it is claimed that the use of the phrase "subject to contract" did not mean that the agreement has not been finalized.
After discussing various case-laws learned Single Judge held that it is not possible at this stage to hold that there is binding contract between the parties and the plaintiff therefore failed to establish prima facie case in its favour for grant of injunction.
The question whether parties reached a concluding contract or not depend upon the fact where the parties were of one mind and all the material terms have been finalized between them and they intended that the matter was closed and concluded between them.
Mr. Bilal Shaukat, learned counsel for the defendant, in support of his argument stated that the agreement of sale was not concluded between the parties and relied upon the case of Raingold v. Bromley, (1931) 2 Chancery Division 307, where it has been held:
"That there was no binding contract to grant a lease, as the expression "subject to terms of the lease" in the letter of December 9, 1930, meant "subject to the terms to be contained in the lease executed by the lessor".
Apart from the above, it also appears that receipt Annexure A-l has been executed only by Defendants Nos. 1 and 2 whereas there are three Trustees, and in terms of Section 48 of the Trust Act, they had to act jointly. The contention of Mr. Ghulam Ali Khokhar learned counsel for the plaintiff that Defendant No. 2 is father of Defendant No. 3 and also an attorney has no force as Defendant No. 2 has not signed the receipt in question for and on behalf of Defendant No. 3 to bind her with the contents of the said receipt.
I also have my reservations about the maintainability of the suit as framed. Instead of filing the suit against the Trust and/or making the Trust as one of the defendants and or issuing cheques of sale consideration in the name of Trust, the plaintiff has filed the suit against the Trustees however this question can be decided at an appropriate time, as none of the parties addressed on it. The plaintiff failed to make out any case for grant of injunction.
For the foregoing reasons listed application has no merit, which is accordingly dismissed. These are the reasons of my short order dated 20-4-2006.
(Fouzia Fazal) Application accordingly dismissed.
PLJ 2006 Karachi 103
Present: Nadeem Azhar Siddiqui, J.
Messrs BAHRIA FOUNDATION, KARACHI--Plaintiff
versus
ABDUL ALEEM BUTT--Defendant
Civil Suit No. 1110 of 2001, decided on 13.6.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, Rr. 2 & 3--Suit for recovery--Leave to defend the suit, non-availing of--Effect--If defendant has failed to obtain leave to defend the suit. Court is required to apply its mind to the facts and documents, placed on record before passing order or judgment, notwithstanding the fact--No person has appeared before it to oppose such order or the person who wanted to oppose was not allowed to oppose because he failed to fulfil the requirement of law. [P. 106] A
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, Rr. 2 & 3--Stamp Act (II of 1899), S. 11--Suit for recovery on the basis of promissory note--Leave to defend--Non-compliance of conditional order--Presumption against negotiable instrument--Defendant was granted leave to defend the suit subject to furnishing of surety bond--Defendant failed to furnish any surety as directed by the Court--Effect--Plaintiff, while producing promissory note and acknowledgment of debt and undertaking of repayment had proved, that the promissory note was executed, against consideration--Presumption was also in favour of negotiable instrument that the same was made and drawn against consideration--Defendant, in spite of getting opportunity to defend the case, had failed to file any defence--Plaintiff proved that the defendant had executed a promissory note and had failed to repay the amount mentioned in it--Suit was decreed. [Pp. 108 & 109] E & F
1996 SCMR 1530 and PLD 2005 SC 322 ref. PLD 1995 SC 362 rel.
Stamp Act, 1899 (II of 1899)--
----S. 11----Civil Procedure Code (V of 1908), O.XXXVII, R.2--Promissory note written on stamp paper--Promissory note was assailed on the ground that it was not written on a paper containing adhesive stamp as required under S. 11 of Stamp Act--Validity--Provisions were directory and permissive in nature and were not mandatory--Promissory note could be written on a paper having adhesive stamps and could be written on a stamp paper--Promissory note was not written on a paper having adhesive stamp did not lose its utility as promissory note--Promissory note must be affixed with adhesive stamp was not necessary--Promissory note written on stamp paper was as good as written on paper containing adhesive stamps. [Pp. 106, 107 & 108] B, C & D
2000 CLC 759 and 1988 CLC 2397 disting. PLD 1987 Kar. 76; 1991 CLC 164; AIR 1978 Madras 412 and AIR 1968 Rajasthan 45 rel.
Mr. Yasin Azad, Advocate for Plaintiff.
Choudhry Abdul Rasheed, Advocate for Defendant.
Date of hearing: 1.6.2006.
Judgment
This is a suit for recovery of Rs. 5,050,000 under Order XXXVII Civil Procedure Code. The facts necessary for the disposal of the suit are that the defendant was appointed as Special Technical and Sale Advisor on January 12, 1998. The plaintiff during the course of employment of the defendant has from time to time provided a sum of Rs. 5,450,000 to him. The defendant supplied accessories comprising 817 Mobile Antennae, 120 Base Antennae and 65 power Supplied to Punjab Police at his risk and cost, which were rejected by Punjab Police. The defendant undertook to sell the said accessories to prospective buyers at this own risk and to pay the proceeds of sale to the plaintiff against the aforesaid debit of Rs. 5,050,000. It is further stated in the plaint that after receiving the aforesaid amount the defendant remained absent form his duties, from April 1, 1998. The defendant on June 13, 1998 executed a Promissory Note in favour of plaintiff acknowledging his liabilities in the sum of Rs. 5,050,000 and also executed an acknowledgment on stamp paper and undertook to repay his liabilities on or before August, 12, 1998. The services of the defendant was terminated on June 17, 1998. The plaintiff lodged F.I.R. against, the defendant and the defendant filed civil suits against the plaintiff.
The summons under summary chapter were served upon the defendant, who vide C.M.A. No. 6629 of 2001 applied for leave to defend the suit unconditionally. After hearing, vide order dated 30-3-2004 conditional leave to defend the suit subject to furnishing surety was allowed to the defendant. The defendant instead of furnishing surety filed C.M.A. No. 2537 of 2004 seeking review of order dated 30-3-2004. The review application was disposed of vide order dated 17-5-2004 as not pressed and two weeks time was allowed to the defendant to furnish security. In spite of extension of time surety was not furnished and the matter was fixed for arguments/final disposal.
Mr. Yasin Azad, learned counsel for the plaintiff has submitted that the suit is based on negotiable instrument and the same is not disputed by the defendant. He further submits that the defendant has confirmed his liabilities by executing acknowledgment of debt and undertaking of repayment, which is also an undisputed document. He also refers to Section 118 of Negotiable Instruments Act and has submitted that presumption is in favour that all the negotiable instruments were made or drawn for consideration. His further contention is that since the defendant has failed to obtain leave to defend the suit the contents of the plaint shall be deemed to be admitted and the plaintiff is entitled to a decree without further proceedings.
The learned counsel for the plaintiff relied upon the following reported cases:--
(1) Naeem Iqbal v. Mst. Zarina 1996 SCMR page 1530.
(2) Haji Muhammad Siddique v. Rana Muhammad Sarwar PLD 2005 SC page 3223.
The learned counsel for the defendant Choudhary Abdul Rasheed has submitted that the suit has been filed on the basis of a document which is not a promissory note as the same is written on a paper having no adhesive stamps and is hit by Section 11 of Stamp Act. He further submits that in view of Section 35 of the Stamp Act the document not properly stamped is inadmissible in evidence and the judgment and decree under Order XXXVII, C.P.C. cannot be passed. He further submits that the alleged Promissory Note at the best can be treated as Bond and the suit has to be proceeded as a long cause suit. He relied upon the following reported cases:--
(1) Muhammad Akram v. Khuda Bux 2000 CLC page 759.
(2) Farid Akhtar Hadi v. Muhammad Latif Qazi 1988 CLC page 2397.
In rebuttal Mr. Yasin Azad, learned counsel for the plaintiff has submitted that since the defendant fails to obtain leave to defend the suit, the contention raised by him cannot be considered. He further submits that affixing of adhesive stamp is not mandatory requirement of law and the Promissory Note was properly written on a proper stamp paper and is admissible in evidence. He relied upon the following reported cases:--
(1) Muhammad Sharif v. Muhammad Hashim Paracha and another PLD 1987 Karachi page 76.
(2) Habib Bank Limited v. Chaudhry Cloth House 1991 CLC page 164.
(3) P. Moorthy v. A.R. Kothandaraman AIR 1978 Madras page 412.
(4) Somdatta v. Abdul Rashid AIR 1968 Rejasthan page 45.
I have heard the learned counsel for the parties and perused the record.
No-doubt the defendant has failed to obtain leave to defend the suit. However, the Court is required to apply its mind to the facts and documents before passing any order or judgment notwithstanding the factum that no person has appeared before it to oppose such an order or that the person, who wanted to oppose, was not allowed to oppose because he failed to fulfil requirement of law. The contention of Mr. Yasin Azad, Advocate is that the contention raised by the defendant cannot be considered has no force.
The learned counsel for the defendant has challenged the Promissory Note on the ground that it has not been written on a paper containing adhesive stamp and referred to Section 11 of the Stamp Act in support of his contention. Section 11 of Stamp Act provides use of adhesive stamps, the same reads as under:--
"11. Use of adhesive stamps.--The following instruments may be stamped with adhesive stamps, namely--
(a) instruments chargeable with the duty of one anna [or half an anna], except parts of bills of exchange payable otherwise than on demand and drawn in sets;
(b) bills of exchange and promissory notes drawn or made out of (Pakistan);
(c) entry as an Advocate, wakil or attorney on the roll of a High Court;
(d) notarial acts; and
(e) transfers by endorsement of shares in any incorporated company or other body corporate."
From bare reading of the above provisions, it is clear that the provisions are directory and permissive in nature and are not mandatory. The Promissory Note can be written on a paper having adhesive stamps and can also be written on a stamp paper and only because Promissory Note was not written on a paper having adhesive stamp does not lose its utility as Promissory Note. In the reported case of Muhammad Sharif v. Muhammad Hashim Paracha PLD 1987 Karachi page 76 the learned Single Bench of this Court has held as under:
"Mr. Kanwar Mukhtar Ahmad, the learned counsel for the defendant, has specifically referred to Section 11 and contended that according to this provision of law promissory note executed or made out of Pakistan can be stamped with adhesive stamp, but other promissory notes made in Pakistan cannot be stamped with adhesive stamp. The provision of Section 11 is directory and permissive as the words used are that the following instruments `may' be stamped with adhesive stamp. It does not prohibit nor impose restriction that promissory notes of any other value cannot be stamped with adhesive stamp. This reasoning finds support from Rule 13 read with Article 49 as amended by the Sindh Finance Ordinance VI of 1982 which permit fixation of adhesive stamp on promissory note even in cases where amount exceeds Rs. 2,50,000."
In another reported case of Habib Bank Limited v. Chaudhry Cloth House 1991 CLC page 164 the learned Single Bench of this Court has held as under:
"The expression used in Rule 13 of the Rules is `may'. The Rule is merely a permissive one, permitting the use of adhesive stamp on promissory notes payable on demand when the amount in any other case is rupees ten. The rule does not lay down that such promissory note shall be stamped with adhesive stamp of the requisite value. The result is that a promissory note in any other case can be written on a paper having an impressed stamp or it can be stamped with special adhesive stamps of the requisite value. In my view a promissory note can be stamped either with special adhesive stamps or adhesive stamps or engraved on a stamp paper of proper value."
The judgment reported in case of Muhammad Akram v. Khuda Bux 2000 CLC page 759 dealt with a situation where document affixed with adhesive stamps were not properly cancelled and was rendered inadmissible in evidence and is not applicable to the present case.
The other reported case of Farid Akhtar Hadi v. Muhammad Latif Qazi 1988 CLC page 2397 was dealt with a case of grant of leave on the ground that the document on the basis of which the suit was instituted was not a promissory note, but was a bond, and as such, the suit was not maintainable and leave to defend was granted, which was challenged in the revision.
The Indian views expressed in the above mentioned reported cases are that in view of word `may' used in Section 11 and Rule 14 the promissory note of any value can always be written on impressed stamp paper and can be stamped with adhesive stamps.
In view of the above reported judgment, it is clear that it is not necessary that the Promissory Note must be affixed with adhesive stamp and a Promissory Note written on a stamp paper is as good as written on a paper containing adhesive stamps.
As far as Section 35 of the Stamp Act is concerned, the same shall only be pressed into service when an instrument not duly stamped is produced in evidence. In this case since I have already held that the promissory note is properly stamped. Section 35 is not applicable.
Since the suit has been filed under summary chapter of the Civil Procedure Code, the Order XXXVII sub-rule (2) of Rule 2 provides that where the defendant fails to appear or obtain leave to defend or fulfil the conditions on which the leave was granted, the contents of the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. The plaintiff while producing the promissory note and acknowledgment of debt and undertaking of repayment has proved that the promissory note was executed against consideration. The presumption is also in favour of the negotiable instrument that the same was made and drawn against consideration. There is no rebuttal to the above facts, as the defendant, in spite of getting opportunity to defend the case, has failed to file any defence.
In the reported case of Haji Ali Khan and Company v. Allied Bank of Pakistan Limited PLD 1995 Supreme Court page 362 the Honourable Supreme Court has held as under:
"It may also be noticed that sub-rule (2) of Rule 2 of the above Order envisages that if a suit is filed in terms of sub-rule (1), the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend. It further contemplates that in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree in terms of sub-clauses (a), (b) and (c) provided in aforesaid sub-rule (2). Whereas, sub-rule (3) thereof lays down that a decree passed under the above rule may be executed forthwith."
In the same judgment the Honourable Supreme Court after considering number of reported cases has held as under:
"The ratio decidendi of the above-referred cases seems to be that if a defendant fails to appear or fails to obtain leave to defend in response to a summons served in Form No. 4 provided in Appendix B to the C.P.C. or fails to fulfil the condition on which leave was granted or where the Court refuses to grant leave, the Court is to pass a decree. It may further be observed that in sub-rule (2) of Rule 2, C.P.C., it has been provided that if a defendant fails to appear or defaults in obtaining leave, the allegations in the plaint shall 'be deemed to be admitted and the plaintiff shall be entitled to a decree, but no such consequences are provided for in Rule 3 of the above Order in a case where the Court refuses to grant leave or the defendant fails to fulfil the condition on which leave was granted. In our view, notwithstanding the above omission in Rule 3, the effect of refusal of the Court to grant leave to failure on the part of the defendant to comply with the condition of the leave, will be the same i.e. the defendant shall not be entitled to defend the suit on any ground and the Court would pass a decree in favour of the plaintiff."
In view of the above, the plaintiff has proved that the defendant has executed a promissory note and has failed to repay the amount mentioned in the promissory note. I have, therefore, no option but to decree the suit of the plaintiff in the sum of Rs. 5,050,000 with interest at the rate of 6% from the date of the suit till realization of the amount. The defendant is also liable to pay the costs of the suit to the plaintiff. The office is directed to prepare the decree in the above terms.
(Fouzia Fazal) Suit decreed.
PLJ 2006 Karachi 110
Present: Muhammad Mujeebullah Siddiqui and Faisal Arab, JJ.
GAHI alias GADA HUSSAIN and others--Petitioners
versus
SHAMAN and 7 others--Respondents
Constitutional Petition No. 140 of 2006, decided on 24.5.2006.
Civil Procedure Code, 1908 (V of 1908--
----S. XLVII & O.XXIII, R. 3--Constitution of Pakistan, 1973--Art. 199--West Pakistan Land Revenue Act (XVII of 1967), S. 42--Constitutional petition--Compromise decree--Grievance of decree holders was that they had approached revenue department for the mutation in the record of rights according to the compromise decree in a suit, but refused the mutation and therefore, it may be declared that the act of concerned revenue department refusing to mutate the entry in the record of rights in the name of decree holders in accordance with the compromise decree was illegal, mala fide and without lawful authority--Officers be directed to mutate the record in the name of petitioners/decree holders in accordance with the compromise decree--Validity--Held, if the decree stopped short with declaring the rights and obligations of the parties relating to the property forming the basis of the claim sought to be enforced, it was a decree declaratory in nature--Parties, in the compromise decree, had settled the terms and conditions of compromise and after specifying the survey number and areas, which was to be held by each party, it had been agreed that after passing of decree the record shall be prepared accordingly and revenue department was a party to the compromise decree--When there was a specific condition compromise and the compromise decree had been passed in pursuance of the terms and conditions agreed between the parties containing the condition that the record shall be prepared accordingly, it was not a decree declaratory in nature simpliciter and therefore, if revenue department being a party to the compromise decree had refused to act according to the compromise, the decree holders ought to have approached Civil Court for the execution of the decree--If there was no dispute about the title of the land, the Revenue Authorities had no jurisdiction to refuse the mutation in accordance with a decree of Civil Court on the ground that the suit was barred by time or the decree passed by the lower Court was not in accordance with the law--If, however, the decree was not capable of execution for the reason that it was between" the parties who had no right in law to enter into compromise in respect of the properties, for the reason that they were not owners of the properties--Revenue authorities were justified in not mutating the record depriving the persons, who were not party to the decree, of their valuable rights and were shown as owners in the record of rights--Such 'questions could be decided by the Civil Court and particularly the point that the persons, in whose names the lands were mutated in the record of rights, were bound by the compromise decree being successors--Interest of the parties to the compromise--All such questions could not be decided in the Constitutional petition by the High Court and petitioners may pursue a remedy through Civil Court seeking clarifications on all such points as well as execution of decree--Constitutional petition was disposed of by the High Court. [Pp. 113 & 114] A & B
PLD 1973 Kar. 686; 1992 CLC 125 and 1972 SCMR 322 ref.
Mr. Moohanlal K. Makhijani, Advocate for Petitioners.
Mr. Muhammad Bachal Tonyo, Addl. A.G. Sindh alongwith Mr. Muhammad Hanif Pitafi, Mukhtiarkar, Land Revenue, Taluka Bakrani.
Date of hearing: 24.5.2006.
Judgment
Muhammad Mujeebullah Siddiqui, J.--The grievance of the Petitioners is that they approached the Respondents Nos. 6 and 7 for the mutation in the record of rights according to compromise decree in First Class Suit No. 60 of 1995, but they have refused the mutation and therefore, it may be declared that the act of Respondent No. 6, Mukhtiarkar, refusing to mutate the entry in the record of rights in the names of the petitioners/decree holders in accordance with the compromise decree is illegal, mala fide and without lawful authority and that the Respondents Nos. 6 and 7 be directed to mutate the record in the name of petitioners/decree holders in accordance with the compromise decree.
The Respondent No. 6, Mukhtiarkar, has filed the parawise comments, stating therein that Respondent No. 7, District Officer (Revenue), Larkana sent a letter dated 18-2-2006 to him with the directions to go through the contents of the compromise decree passed in First Class Suit No. 60 of 1995 and taken further necessary action in accordance with law. It is further stated that the report of Tapedar was called, wherein details of the lands and names of Khatedars were given. It was stated that there are several survey numbers shown' in the compromise decree in the name of parties to the decree but in the record of rights those survey numbers are not mutated in the names of such persons. The Mukhtiarkar has further stated that he has himself gone through the record and has verified the contents of report of Tapedar. He has stated that the following survey numbers, which are mentioned in the compromise decree do not belong to the parties in the compromise decree and their owners, according to the record, are as under:
S.Nos. Area Owners according to R/R
274 1-06 acres Mst. Izzat Khatoon 0-50
Sultan 0-50
231 1-31 acres Same as above
236 6-32 acres Ghulam Muhammad
Ghulam Ali
Ghulam Mujtaba
Mst. Ghulam Fiza
277 1-00 acres Mst. Izzat Khatoon 0-50
Sultan 0-50
279 2-15 acres = =
289/1 0-15 acres = =
452 5-11 acres = =
376 3-11 acres = =
359 1-05 acres = =
250 7-12 acres = =
378/2 1-19 acres = =
379 2-04 acres = =
The above persons were not joined as parties in the Civil suit. and they are not party to the compromise decree and, therefore, the decree is not binding on the above persons. He has further submitted that on account of the . above reasons the compromise decree cannot be executed upon as per terms and conditions mentioned in the decree. He has explained that he has refused to mutate the record of rights as per terms and conditions of decree for the reasons that the parties in the suit are not owners as per record of rights.
We have asked Mr. Moohanlal whether any execution application has been filed before the Civil Court for the execution of decree, to which he has replied that no execution application has been submitted because the compromise decree is a declaratory decree, which is not capable of being executed. He has further submitted that without filing any execution application the petitioners are entitled to get the mutation in the record of rights in pursuance of the declaratory decree passed by the Civil Court. In support of his contentions he has placed reliance on a D.B. judgment of this Court in the case of Muhammad Yousif v. Abdul Rashid PLD 1973 Karachi 686, wherein it has been held that if a decree does not contain any absolute direction but has stopped short with declaring the rights and the obligations of the parties relating to the property forming the basis of the claim sought to be enforced through execution proceedings, the decree would be merely declaratory in nature and not capable of execution. He has further replaced reliance on a single Bench judgment of the Lahore High Court in the case of Khushi Muhammad v. Member, Board of Revenue 1992 CLC 125, wherein it has been held that the Revenue Officer is bound by a decree of the Civil Court and has no authority to review or scrutinize the merits of the decree of the Civil Court and even it is barred by time, the Revenue authorities are obliged to sanction mutation on the basis of decree of the Civil Court. He has next placed reliance on the judgment of Honourable Supreme Court in the case of Ali Ahmad v. Muhammad Fazal 1972 SCMR 322, wherein it has been held that the Revenue authorities are under obligation to sanction mutation on the basis of a decree.
We have examined the compromise decree and we are not persuaded to agree with the submission of Mr. Moohanlal that it is a declaratory decree simpliciter. The test has been laid down in the D.B. judgment of this Court in the case of Muhammad Yousuf (supra), wherein it has been held that if the decree stops short with declaring the rights and obligations of the parties relating to the property forming the basis of the claim sought to be enforced, it was a decree declaratory in nature. In the compromise decree in first class Suit No. 60 of 1995 we find that the parties have settled the terms and conditions of compromise and after specifying the survey number and the area, which shall be held by each party, it has been agreed that after passing of decree the record shall be prepared accordingly. Mukhtiarkar, Larkana was a party to the compromise decree. Thus, when there is a specific condition in the compromise and the compromise decree has been passed in pursuance of the terms and conditions agreed between the parties containing the condition that the record shall be prepared accordingly, it is not a decree declaratory in nature simpliciter and therefore, if Mukhtiarkar being a party to the compromise decree has refused to act according to the compromise, the decree holders ought to have approached Civil Court for the execution of the decree.
Mr. Muhammad Bachal Tonyo has pointed out that at the time of submitting compromise application the learned counsel for the plaintiff had filed statement withdrawing the suit against Respondents Nos. 4 to 6 i.e., Mukhtiarkar, Larkana, S.H.O. Taluka Police Station, Larkana and Government of Sindh through D.C. Larkana. Even if the suit was withdrawn against the Respondents Nos. 4 to 6, the record was to be mutated by the Revenue Authorities and the Civil Court is competent to get the decree executed. However, if Mr. Moohanlal is of the view that the decree is declaratory in nature, the relief lies in filing the suit for execution of a decree, more particularly because the facts are disputed. According to Tapedar and Mukhtiarkar, the lands are mutated in the names of persons who were not party to the suit and therefore, the trite law is that nobody can transfer any right, title or interest in a property which he himself does not hold in the said property. Mr. Moohanlal has submitted that the lands are mutated in the names of the persons, whose heirs were party to the compromise decree. This is also a question of fact and cannot be decided in exercise of jurisdiction under Article 199 of the Constitution. The ratio of the judgments, on which Mr. Moohanlal placed reliance, leads us to the conclusion that if there is no dispute about the title of the land, in that case the Revenue Authorities have no jurisdiction to refuse the mutation in accordance with a decree of Civil Court on the ground that the suit was barred by time or decree had become barred by time or the decree passed by the Civil Court was not in accordance with the law. However, if the decree is not capable of execution for the reason that it is between the parties who had no right in law to enter into compromise in respect of the properties, for the reason that they were not owner of the properties, the Revenue Authorities are justified in not mutating the record depriving the persons, who were not party to the decree, of their valuable rights and are shown as owners in the record of rights. These questions can be decided by the Civil Court and particularly the point that the persons, in whose names the lands are mutated in the record of rights, are bound by the compromise decree being predecessors-in-interest of the parties to the compromise. All these questions cannot be decided in this petition and therefore, the petitioner may pursue a remedy through Civil Court seeking clarifications on all the above points as well as execution of decree. The petition stands disposed of in the above terms.
(Fouzia Fazal) Order accordingly.
PLJ 2006 Karachi 114
Present: Ali Sain Dino Metlo, J.
AURANGZEB--Petitioner
versus
Mst. GULNAZ and another--Respondents
Constitutional Petition No. 121 of 2006, decided on 24.3.2006.
Constitution of Pakistan, (1973)--
----Art. 199--West Pakistan Family Courts Act (XXXV of 1964), Ss. 5, 14 & Shedl.--Constitutional petition--Maintainability--Alternate remedy, availability of--Grant of decree for dissolution of marriage on ground of Khula'--Determination and restoration of mutual benefits--Decree for marriage on the ground of Khula' though was not appealable in view of S. 14, West Pakistan Family Courts Act, a decision with regard to determination and restoration of mutual benefits was always appealable--Alternative remedy of appeal being available, Constitutional petition was not maintainable. [P. 118] E
1982 CLC 2057; PLD 1987 Lah. 420 and 2003 YLR 2708 ref.
Khula--
----Contention of--Khula cannot be granted without restitution of dower is not tenable in law. [P. 117] A
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----Ss. 5 & 14--Dissolution of marriage on the ground of Khula'--Principles--Restitution of dower is not an indispensable condition for grant of Khula' and non--restoration of dower and other benefits will not have any effect upon the validity of the decree--Once the Family Court comes to conclusion that a wife was entitled for Khula it must pass such decree in her favour--Decision regarding the restoration of mutual benefits will have to be taken in the light of facts of each case and it will have the effect of only creating a civil liability--If the contention that Khula' cannot be granted without restitution of dower and other benefits, is accepted, then a destitute wife, who is found otherwise entitled to Khula', will stand deprived of the right simply because of her incapacity to return the benefits, which will be highly unfair and against the spirit of law and justice--Wife, in the present case, admittedly lived with the husband for over one and half year, such living can be treated as sufficient reciprocal benefit received by the husband for a dower of specified amount--Wife who belonged to a lower class, seemed to be not in a position to pay the amount particularly after undergoing the litigation for 2«--Family Court, taking into consideration the overall facts of the case, had rightly considered proper to dissolve the marriage by way of Khula' without ordering restoration of dower, it was within the discretion of the Family Court, and therefore, the decree could not be termed as 'without lawful authority' so as to warrant interference of the High Court under its Constitutional jurisdiction. [Pp. 117 & 118] B, C & D
2003 YLR 70; 2003 YLR 599; PLD 1959 (W.P.) Lah. 566; PLD 1977 Kar. 855; NLR 1982 SC 104; PLD 1983 SC 169 ref.
Mr. Muhammad Ali Abbasi, Advocate for Petitioner.
Nemo for Respondents.
Date of hearing: 24.3.2006.
Judgment
Petitioner Aurangzeb, by way of this petition under Article 199 of the Constitution, seeks declaration to' the effect that the decree passed on 17-12-2005 by the Family Court IV, Karachi Central, in Respondent No. 1's Family Suit No. 302 of 2003, dissolving marriage between the parties on the ground of Khula' without restitution of dower was without lawful authority and of no legal effect, and mandatory injunction to direct her (Respondent No. l) to join him (petitioner) and perform her marital obligations.
Briefly, the facts are that the marriage between the parties, which took place in January 2000 at Darband, Abbotabad, proved unsuccessful. The parties lived together for about one and half year but no child was born to them as, according to the petitioner, the Respondent No. 1 was using contraceptive devices against his wish. In or about the month of July, 2003, the Respondent No. 1 filed the suit for dissolution of marriage, past maintenance and dowry alleging that the conduct of the petitioner, right from the beginning, was very harsh and cruel and he used to beat her severely on every petty matter and ultimately he drove her out from his house in three clothes. According to her, the ornaments of dower were also taken away from her by petitioner's mother just after few days of the marriage on the pretext that they were to be worn only on ceremonial occasions, and were never returned back, and the dowry, which was worth about rupees two lac, was also retained by the petitioner. She further pleaded that due to the conduct of the petitioner she had developed intense hatred for him and it was not possible for her to live happy life with him within the limits prescribed by Allah. The petitioner contested the suit and contended that there was nothing wrong with him and the Respondent No. l had been simply misguided by her maternal uncle. He denied that his mother had taken away the ornaments from her and contended that the dowry was hardly of rupees ten or fifteen thousand.
By an order dated 15-7-2003, the Family Court, on failure of its reconciliatory efforts, dissolved the marriage on the ground of Khula' and directed the Respondent No. 1 to return dower to the petitioner. On appeal, filed by the Respondent No. 1, the matter was remanded to the Family Court to decide the issue about the restitution of dower after recording evidence. The Respondent No. 1 examined herself and her father, while the petitioner examined himself and two other witnesses. In spite of its finding that the Respondent No. 1 had failed to prove that petitioner's mother had taken away the ornaments of dower from her, the Family Court, by its judgment and decree dated 7-12-2006, dissolved the marriage without ordering for the restoration of dower holding that for the grant of Khula' restitution of dower was not necessary. The prayer for maintenance was refused on the ground that the petitioner was not obliged to provide maintenance for the period she lived separate from him and the prayer for dowry was allowed only to the extent of the dowry admitted by the petitioner.
Mr. Muhammad Ali Abbasi, learned counsel for the petitioner argued that the decree was without lawful authority and of no legal effect' as, according to him, Khula' can't be granted without restituting the dower. However, he could not cite any authority in support of his argument.
The finding of the Family Court that the Respondent No. 1 had failed to prove that petitioner's mother had taken away the ornaments of dower from her is premised only on the ground that in support of her contention she had examined herself and her father and no other independent witness, ignoring that the petitioner had also not examined his mother to deny the allegation and in view of Section 17 of the Family Courts Act, 1964, the rules of evidence as contained in the Qanun-e-Shahadat, 1984, were not applicable in family matters. Thus, one may reasonably differ with the finding. But as far as the present petition is concerned, the question raised in it can be decided without disturbing the finding and, therefore, it will be unnecessary to reappraise the evidence.
The contention of the petitioner that Khula' cannot be granted without restitution of dower is not tenable in law. The view taken by the A Family Court is not only consistent with the view taken in the cases of Mst. Saiqa v. Additional District Judge, Rawalpindi PLD 2003 Lahore 70 and Munawar Iqbal Satti v. Mst. Uzma Satti and others 2003 YLR 599 Lahore, referred to in its judgment, but is also in accord with the judicial opinion expressed in many other judgments of the superior Courts.
In his landmark judgment in Mst. Balqis Fatima's case PLD 1959 (W.P.) Lahore 566, which was first of its kind in the field of family laws in Pakistan, B.Z. Kaikaus, J. speaking for the Full Bench observed in paragraph 24 at page 582 of the report:
"Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation. If the dissolution is due to some default on the part of the husband, there is no need of any restoration. If the husband is not in any way at fault, there has to be restitution of property received by the wife and ordinarily it will be of the whole of the property but the Judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a benefit received."
In the case of Mst. Shamshad Begum v. Abdul Haque alias Nawaz and 2 others PLD 1977 Karachi. 855 a Division Bench of this Court, referring to verse 20 of Sura-al-Nisa and opinion expressed in `Radd-ul-Muktar' observed that it was not lawful for a husband to take back anything from his wife particularly when Khula' was due to some fault on his part. In the case of Mst. Razia Begum v. Saghir Ahmed NLR 1982 SC 104 Karachi Saleem Akhtar, J. (as his Lordship then was) held that after dissolution of marriage on the ground of Khula', a decree for unpaid dower could validly be passed as it was not necessary to forgo dower in lieu of Khula'. In the case of Dr. Akhlaq Ahmed v. Mst. Kishwar Sultana and others PLD 1983 SC 169 the Hon'ble Supreme Court was pleased to hold that non-restoration of consideration for Khula' did not invalidate the dissolution of marriage by Khula' and once the Family Court came to the conclusion that the parties could not remain within the limits of God, the dissolution must take place and the inquiry and finding with regard to the benefits to be returned by the wife to the husband would only create civil liabilities upon the wife and would not have any effect upon the dissolution itself.
Thus, the consensus of judicial opinion is that restitution of dower is not an indispensable condition for the grant of Khula' and non-restoration of dower and other benefits will not have any effect upon the validity of the decree. Once the Family Court comes to conclusion that a wife was entitled for Khula' it must pass such decree in her favour. The decision regarding the restoration of mutual benefits will have to be taken in the light of facts of each case and it will have the effect of only creating a civil liability. If the contention of the petitioner that Khula' cannot be granted without restitution of dower and other benefits is accepted, then a destitute wife, who is found otherwise entitled to Khula, will stand deprived of the right simply because of her incapacity to return the benefits, which will be highly unfair and against the spirit of law and justice.
The Respondent No. 1 admittedly lived with the petitioner as his wife for over one and half year and in the light of the weighty observations made in Mst. Balqis Fatima's case, such living can be treated as sufficient reciprocal benefit received by the petitioner for a dower of Rs. 42,000 which is not a big amount in these days. Moreover, the Respondent No. 1, who belongs to a lower class, seems to be not in a position to pay the amount particularly after undergoing the litigation for two and half years. The Family Court, taking into consideration the over all facts of the case, considered it proper to dissolve the marriage by way of Khula' without ordering restoration of dower. It was within its discretion and, therefore, the decree cannot be termed as 'without lawful authority' so as to warrant interference in the exercise of Constitutional jurisdiction.
The petition is not maintainable, from another angle also. Though a decree for the dissolution of marriage on the ground of Khula' is not appealable in view of the proviso to Section 14 of the Family Courts Act, 1964, a decision with regard to determination and restoration of mutual benefits is always appealable and for this view reference may be made to the cases of Muhammad Shafi v. District Judge Gujrat and another 1982 CLC 2057 Lahore, Muhammad Sanaullah v. Muhammad Ilyas, Senior Civil Judge/Judge Family Court Toba Tek Singh and 2 others PLD 1987 Lahore 70, and Muhammad Shaban v. Judge Family Court and others 2003 YLR 2708 Lahore. In presence of the alternate remedy of appeal, Constitutional petition under Article 199 is not maintainable.
It was for the above reasons, recorded now, that the petition, being not maintainable and meritless, was dismissed in limine by a short order passed on 24-3-2006.
(Rafaqat Ali Sohal) Petition dismissed.
PLJ 2006 Karachi 119
Present: Azizullah M. Memon, J.
Syed AMJAD ALI--Appellant
versus
Mst. KANEEZ FATIMA and 3 others--Respondents
Second Appeals Nos. 3, 4 and Misc. No. 235 of 2006, decided on 31.5.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 100 & O.XLI, R. 31--Specific Relief Act (I of 1877), S. 42--Second appeal--Issue wise finding--Concurrent findings--Parties were real brother and sisters in relation and dispute between them was with regard to possession of first floor of the house in-dispute, which was owned by their father--Cross suits were filed by both parties and the suit filed by respondents was concurrently decreed by Courts below while that of the appellant was dismissed by Courts below--Plea raised by appellant was that the Courts below failed to record their findings on the pleadings of the parties and on the basis of separate issues framed by the trial Court and provisions of O.XLI, R.31 of Civil Procedure Code (V of 1908) were infringed--Validity--Where complicated questions of fact and law were not involved in a case and on the other hand, findings recorded by Courts below, on the pleadings of the parties, were clear enough to determine their rights on the basis of their pleadings the judgment so passed by trial Court and First Appellate Court could not be said to have infringed the provisions of law--Dispute between the parties was as to whether the father had at any time agreed to transfer first floor of disputed property in favour of appellant, his own son--Father having purchased the property through registered document and executed gift-deed in favour of his daughters (respondents), the oral version of appellant to the extent that father entered into oral agreement to execute declaration of transfer of first floor premises in his favour could not be believed--High Court declined to interfere with the concurrent judgments and decrees passed by Courts below--Second appeal was dismissed. [P. 126] C & D
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 129--Presumption--Question of ownership--Raising of construction--Proof--House in-question was owned and possessed by father, while son also living in the same house claimed to have constructed first floor of the house after its purchase by the father--Validity--Presumption of law would be that the owner himself raised the construction of the first floor building until and unless contrary was proved through reliable evidence. [P. 126] A
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 102--Evidence--Registered document--Validity--It is settled principle of law that oral version cannot be entertained, much less believed over and above the contents of the registered document. [P. 126] B
Mr. Muhammad Akhtar, Advocate for Appellant (in both the Appeals).
Qazi Majid Ali, Advocate for Respondents (in both the Appeals).
Date of hearing: 31.5.2006.
Order
Both the above appeals have been filed by appellant, Syed Amjad Ali, against the consolidated judgment dated 28.11.2005 passed by the learned 1st Additional District Judge, (Central) Karachi in Civil Appeal No. 108 of 2005 and Civil Appeal No. 109 of 2005 whereby both the appeals stand dismissed and the judgment and decree passed by learned VIth Senior Civil Judge, Karachi Central, in Civil Suit No. 312 of 2004 and Civil Suit No. 313 of 2004 stand upheld.
The earlier numbers mentioned to both the suits separately were Civil Suit No. 369 of 2002 and Civil Suit No. 1401 of 2001, which were filed in this Court under the original civil jurisdiction and were then made over to the learned District Court of the competent jurisdiction in pursuance of the amendment of the relevant provisions of law regarding the enhancement of the pecuniary jurisdiction of the District Courts.
The Plaintiffs, Mst. Kaniz Fatima and Miss Anis Fatima of the Civil Suit No. 369 of 2002 made the following prayers:-
(a) To direct to the defendant or any body in possession of the suit property to give to and had over the vacant and peaceful possession of the same alongwith two suitcases and other articles of the Plaintiff No. 1 and her father to the plaintiffs so as to put the plaintiffs into vacant peaceful possession thereof.
(b) To grant injunction against the Defendant No. 1 restraining him permanently to enter into Ground Floor of House No. R-18, Block 15, F.B. Area, Karachi, and causing mental and physical torture to the plaintiffs and their parents by verbal or physical abuse.
(c) To direct to the Defendant No. 2 to rescue the plaintiffs and their old age parents against the maltreatment and high handedness of the Defendant No. 1, as and when situation arises.
(d) Granting mesne profits for illegally using the premises from the month of January, 1998 at Rs. 4,500 per month till the possession of the premises is restored to the plaintiff.
(e) Granting cost of the suit.
(f) Grant such better and appropriate relief to the plaintiff as may be deemed fit and proper by this honourable Court keeping in view the conduct of the defendant and in the interest of justice.
Where the plaintiff, Syed Amjad Ali, of Civil Suit No. 1401 of 2001 made the following prayers:--
"(a) To cancel the Declaration of Oral Gift dated July 1, 1998 executed by the Defendant No. 1 in favour of the Defendants Nos. 2 and 3 in respect of the First Floor of the Property bearing House No. R-18, Block 15, Federal 'B' Area, Karachi, known as Dastagir Society and any other document(s) executed and or obtained by the Defendants Nos. 2 and 3 in their favour on the basis of the said document of Oral Gift from any authority(s).
(b) To declare that document of Oral Gift dated July 1, 1998 is void ab inito in law, as the plaintiff is in occupation, enjoyment and physical possession of the Property bearing House R-18, Block 15, Federal `B' Area, Karachi known as Dastagir Society, Karachi an also declare that the plaintiff is the owner of the suit property.
(c) To direct the Defendant No. 1 to perform his commitment, promise and execute the necessary Settlement Deed in favour of the plaintiff whereby, the plaintiff is the exclusive owner of the First Floor of the House bearing No. R-18, Block 15, Federal `B' Area, Karachi known as Dastagir Society.
(d) Permanent Injunction restraining the defendants agent(s), person(s), servant(s), successor-in-interest or any other person claiming through or under them from interfering with the peaceful physical possession, occupation, enjoyment, of the Plaintiff in respect of House bearing No. R-18, Block 15, Federal 'B' area, Karachi known as Dastagir Society without due process of law.
(e) Any other relief befitting to the facts and circumstances of this case may also be awarded."
For the reason that both the present second appeals arise out of the very same consolidated judgment passed by the learned additional District Judge Central, Karachi, and also the fact that the same pertain to the very same property involved in the said two suits, the present appeals are being disposed of by this common order.
Plaintiff, Syed Amjad Ali asserted in his suit that defendant Syed Akhtar Ali, is his father while defendants Mst. Kaniz Fatima and Miss Anis Fatima are his sisters. Syed Akhtar Ali and Miss Anis Fatima reside on the ground floor of the House Bearing No. R.18, Block 15, Federal `B' Area, Dastagir Society, Karachi, whereas the plaintiff resides on the first floor premises of the said property since the year 1996 having exclusive possession thereof without any interruption or hindrance from any person and got his telephone connection installed at the first floor premises; he further contended that his sister, Mst. Kaniz Fatima, Defendant No. 2 is separately residing with her husband and children, as well as working as grade II Officer in the Credit Management Division, Allied Bank of Pakistan Limited, "and has good connection with the high officials of the police and also with the Army people"; his father Syed Akhtar Ali retired from service in the year 1994 while Defendant No. 3 is working as a household lady and, therefore., the plaintiff asserts that they both are being maintained by him and by no body else having great love and affection with his own mother also who resides on the ground floor premises of the said suit property.
Plaintiff further asserted that his brother left the suit property for the reasons that the defendants Mst. Kaniz Fatima and Miss Anis Fatima, allegedly used to fight with their respective wives and created domestic problems for them, whereas the plaintiff being "obedient and loving son of his father continued living with the father" and also went on paying all his salary amount to the father since he got himself employed; further his father handed over the physical possession of the first floor premises of the suit property to him with oral agreement that he will execute "the Settlement Deed in connection thereof" so that the ownership rights in the first floor premises of the plaintiff should get confirmed whereas Defendant No. 3, his sister Miss Anis Fatima would become owner of the ground floor premises "after the death of Defendant No. 1".
The plaint makes the narration of the household affairs and it so appears that the relations in between the parties got strained in due course of time; in short, the plaintiff asserts that he had all along been fully devoting, himself towards proper maintenance of the household affairs by spending all the amounts of his own earnings and also paid some amount to the Defendant No. 1 who had promised and agreed to transfer the first floor premises of the property in his name, and he went on spending money towards proper maintenance of the first floor premises itself; but the Defendant No. 1 then executed "declaration of gift in favour of Defendants Nos. 2 and 3 and did not fulfil his promise of transferring the same in the name of the plaintiff by means of execution of proper transfer documents and to get the same registered; on the basis of the said declaration/oral gift the mutation of the property stands effected in the names of the Defendants Nos. 2 and 3, although the plaintiff continues to be in physical possession and enjoyment of the first floor premises since the year 1996; Defendant No. 1 allegedly was requested by the plaintiff to fulfil his said promise; but he refused to transfer the portion of the said property in his favour and instead some notorious gundas were hired with intention that they may attack upon the plaintiff; hence the above quoted prayers were made by the plaintiff, Syed Amjad Ali in his own suit.
On the other hand, plaintiffs Mst. Kaniz Fatima and Miss Anis Fatima asserted in their own suit that their father purchased the said house as a single storey building through registered document and then himself constructed the first floor premises thereon during the year 1973 and then gifted out the entire property to them by means of registered document before the Sub-Registrar Karachi, on 1st July, 1998 and the mutation in the record of rights stands effected in their names whereas Defendant No. 1/plainitff Syed Amjad Ali was residing with the family in the first floor premises of the said house "under permission of the father/owner" and they being his sisters, allowed them to continue temporarily to reside on the first floor premises out of love and affection for their brother but who then became harsh and aggressive, used abusive language while addressing them and therefore they revoked the permission, which they had accorded to him to temporarily reside in the first floor rooms of the house, and asked him to vacate the same, who then filed suit for cancellation of the gift-deed for declaration and for permanent injunction against them and against their father (referred to above); they further asserted that plaintiff Syed Amjad Ali was allowed to utilize one room of first floor only whereas remaining two rooms remained in possession of the Plaintiff No. 2 and her father but he falsely claimed in the suit to be in possession of the entire first floor premises and he declined to vacate the house; hence the above quoted prayers were made by them in their own suit.
As stated above, learned VIth Senior Civil Judge, Karachi Central, dismissed the suit of plaintiff Syed Amjad Ali whereas the suit of plaintiffs Mst. Kaniz Fatima and Miss Anis Fatima was decreed; learned Additional District Judge (Central) Karachi, dismissed both the appeals; hence the present two appeals have been filed by him.
Relevant observations of the appellate Court read as under:
"Admittedly the Respondent No. 1 being a lawful owner of the suit property had gifted the suit property to the Respondents Nos. 2 and 3 by registered gift-deed. Respondent No. 1 in his evidence confirmed the said fact. On the contrary appellant also admitted that Respondent No. 1 was lawful owner of the suit property. Appellant further admitted that Respondent No. 1 gifted the same to the Respondents Nos. 2 and 3 who are real daughters of the Respondent No. 1. Appellant deposed that execution of gift-deed dated 1-7-1998 in respect of the suit property was in his knowledge. Appellant alleged that Respondents Nos. 2 and 3 with a collusion obtained a gift in their name. Execution of gift-deed is admitted, acceptance of gift-deed is also admitted, only delivery of possession of gifted property was not made because younger brother of the Respondents Nos. 2 and 3/appellant was residing on the first floor of the property who was allowed to occupy the same for love and affection. Appellant's counsel contended that since possession of the gifted property has not been handed over to the persons to whom gift has been made, meaning thereby ingredient of the gift has not been fulfilled, it is held in the case reported in PLD 1991 SC page 466 "That strict proof by the donee of transfer of physical possession was not insisted upon when the father is donor for a daughter". It is further reported in 2004 SCMR 1701 that "In a case of gift to wife or to ward, the delivery of possession was immaterial". In the instant case the Respondents Nos. 1 and 3 were in possession of the suit property , therefore, possession of one donee i.e. Respondent No. 3 can be assumed as possession of both donees. The appellant deposed that the alleged gift was made regarding the ground floor of the suit property and not for the first floor of the suit property. Respondent No. 1 in rebuttal to statement of the appellant stated that the description of the disputed property was prepared from the sale-deed dated 18-7-1967, because at that time a house was constructed only on the ground floor and therefore, the sale-deed was in respect of single storey only. First floor was constructed by the Respondent No. 1 in the year 1973 as per approved plan. At the time or execution of gift-deed the suit property was. double storey. Respondents Nos. 2 and 3 accepted the gift-deed of the entire house made by the Respondent No. 1 in their favour. On the other hand the appellant has not produced any documentary evidence establishing that the ground floor of the suit property was gifted to Respondents Nos. 2 and 3. The related documents produced by the appellant and the respondents proved without any shadow of doubt that in all the related documents the word single storey house on Plot No. 18, Block No. 15, measuring 142 Square Yards is mentioned and no where is mentioned the word ground floor or except first floor of the house. Respondents Nos. 1, 2 and 3 step into the witness box in the Court and confirmed about the gift made by the Respondent No. 1 to Respondents Nos. 2 and 3 of entire house. Appellant failed to establish that the gift-deed dated 1-7-1998, in respect of the suit property is void and was got registered by. the Respondent No. 1 in collusion of the Respondents Nos. 2 and 3 illegally. Appellant to prove his possession of the first floor of the suit property produced telephone and electricity bills. Bills are for payment of utility consumed by him. Appellant has not produced any document to establish that he constructed first floor of the suit property after spending huge amount from time to time on construction of first floor to his father. There is oral version of the appellant not supported by any independent evidence. Appellant has failed to established that settlement between him and his father regarding transfer of ownership rights in favour of appellant in respect of first floor of the suit property was made. There was no contract between the appellant and the Respondent No. 1 regarding transfer of ownership rights in favour of the appellant. Respondent No. 1 on his own free will. executed declaration of gift in favour of the Respondents Nos. 2 and 3, who got mutated the suit property in their names. The appeal filed on behalf of the appellant is totally misconceived and has been filed to deprive the respondents from their legal rights. Learned VI Senior Civil Judge Karachi Central has rightly appraised the evidence and arrived at right conclusion. VI Sr. C.J. made appreciation of evidence in accordance with law which requires no interference. Appellant has miserably failed to point out any illegality, error and misreading of evidence while dismissing the suit filed on behalf of the appellant. I hereby maintain the . judgments and decrees dated 5-7-2005 and 13-7-2005."
Heard Mr. Muhammad Akthar for the appellant in both the appeals and Mr. Qazi Majid Ali for the respondents.
It has come to the evidence recorded by the trial Court that father of the parties namely, Syed Akhtar Ali, admitted/deposed that he had gifted out the entire property to both the ladies, viz. his daughters: Articles 138-139 of Muhammadan Law empower a Muslim owner of the property to gift out his property in favour of any person, whereas in the present case he himself admitted that the entire property was gifted out by him to his own daughters to the exclusion of his son, viz. Syed Amjad Ali.
The house was admittedly purchased by the father of the parties through registered document and it has come on record that first floor premises of the said property was constructed after Syed Akhtar Ali purchased the same; the presumption of law would be that the owner himself raised the construction of the first floor building until and unless contrary is proved through reliable evidence, which is not available from the side of the appellant the evidence recorded by the trial Court.
Needless to say that the dispute being in between the son/brother on the one hand and father/daughters/sisters on the other, it would have been but natural that the son/brother must have been spending some money towards welfare of his own father and sisters, but then such expenditure of the amount on his part could not be treated as consideration towards part of the property in his favour, for the simple reasons that the property documents in favour of Syed Akhtar Ali, father of the appellant, as also in the names of his daughters are in the shape of registered documents, and it is a settled principle of law that oral version cannot be entertained, much less than to believe over and above the contents of the registered documents.
Learned counsel for the appellant has argued that the courts below failed to record their findings on the pleadings of the parties and on the basis of separate issues framed by the trial Court and therefore the provisions of Order XLI, Rule 31, C.P.C. were infringed.
Suffice it to say that it is also a settled principle of law that where the complicated questions of fact and/or law are not involved in a case/suit and on the other hand the findings recorded by the Courts below on the pleadings of the parties are clear enough to determine their rights on the basis of their pleadings, respectively raised by them, the judgment so, passed by the Courts below could not be said to have infringed the provisions of law; as stated above, the dispute in between the parties is as to whether the father had at any time agreed to transfer the first floor premises of the disputed property in favour of the appellant, his own son; it has already been observed above that it would be suffice to say that father having purchased the property through registered document and executed documents in favour of his daughter, the oral version of the appellant to the extent that father entered into oral agreement to execute declaration of transfer of first floor premises in his favour cannot be believed.
Under the circumstances there is no force in these two appeals which are hereby dismissed in limine together with the listed applications.
(Rafaqat Ali Sohal) Appeals dismissed.
PLJ 2006 Karachi 127
Present: Sarmad Jalal Osmany, J.
ABDUL LATEEF--Applicant
versus
ASHIQUE ALI and others--Respondents
C.R.A. No. S-15 of 1996, decided on 17.3.2006.
Specific Relief Act, 1877 (I of 1877)--
----Ss. 12 & 39--Transfer of Property Act (IV of 1882), Ss. 58(c) & 60--Suit for specific performance and cancellation of sale-deed--Mortgage by way of conditional sale--Claim of petitioner was that respondent obtained amount as loan from him and as security for repayment of said loan, with a stipulation date that if said amount would not be paid by stipulated date, mortgage deed would be treated as one for absolute sale; and thereafter respondent would execute sale-deed in favour of petitioner--Petitioner had alleged that respondent had failed to repay amount by stipulated date and instead fraudulently had executed a sale-deed for sale of said shop in favour of other respondent--Respondent denied claim of petitioner--Suit filed by petitioner was decreed by the trial Court, but appellate Court set aside decree of the trial Court--Assailed--Validity--Held: In view of stipulations and conditions contained in mortgage deed in question, it was a mortgage by conditional sale within the meaning of Section 58(c) Transfer of Property Act, and suit based upon same for specific performance would be barred being a clog on equity of redemption which had been accorded to the mortgager under Section 60 of Transfer of Property Act--Suit for specific performance filed by petitioner upon document in question, would be barred by law--No exception could be taken to impugned order passed by First Appellate Court. [Pp. 128, 131 & 132] A, B & C
1992 SCMR 417; PLD 1959 Dhaka 293; PLD 1967 Kar. 859; 2001 YLR 263; 1991 SCMR 819; 1991 CLC 2056; PLD 1993 SC 292; PLD 1982 AJK 79; 1990 MLD 1592; PLD 2003 Pesh. 235; PLD 2002 Pesh. 1 and 1996 SCMR 336 ref.
Mr. Abdul Naeem, Advocate for Applicnat.
Mr. Abdul Qadir Shaikh, Advocate for Respondents.
Dates of hearing: 12, 19, 26.8.2005, 9, 16 and 30.9.2005.
Judgment
This Civil Revision Application impugns the judgment dated 28-1-1996 passed by the learned Additional District Judge, Kandiaro whereby Civil Appeal No. 70 of 1994 filed by respondents against the applicant was allowed and the judgment and decree passed by the learned Senior Civil Judge, Kandiaro dated 20-11-1994 and 27-11-1994 in F.C. Suit No. 141 of 1993 in favour of the applicant was set aside.
Briefly stated the facts of the matter are that the applicant Abdul Latif had filed Civil Suit No. 141 of 1993 (old No. 73 of 1983) against respondents Ashiq Ali and Rahmat Ali wherein it has been averred that respondent Ashiq Ali had obtained a loan from Applicant Abdul Latif in a sum of Rs. 25,000 and as security for repayment of the same he had mortgaged the shop in question on 11-3-1982 in favour of the former with a stipulation that if the said amount was not repaid by 5-4-1983, the mortgage deed would be treated as one for absolute sale and thereafter the respondent Ashiq Ali would execute such sale-deed in favour of the applicant. The possession of the shop was also delivered to the applicant on 11-3-1982 and so also a power of attorney was executed by the Respondent No. 1 in favour of the applicant's son namely Abdul Razzaq, on the said date whereby the Attorney was authorized to execute the sale-deed in favour of the applicant. Per the applicant, respondent Ashiq Ali failed to repay the amount of Rs. 25,000 by 5-4-1983 and instead fraudulently executed a sale-deed for the said shop in favour of Respondent No. 2 Rahmat Ali. Hence the suit for specific performance of the agreement between the parties and for cancellation of the subsequent sale-deed in favour of Respondent No. 2. In the written statement filed by the respondents it is denied that the shop was ever mortgaged to the applicant by Respondent No. 1 as it was rented out to him and the amount of Rs. 25,000 was in fact the security deposit given by the applicant. In the alternative it has also been pleaded that the said mortgage deed is not a binding and legal document and hence does not create any right, title or interest in favour of the applicant. It is further averred that the said amount has been returned to the applicant by Respondent No. 1 on 3-4-1983 and the possession of the shop was delivered to the respondent on the same day in presence of the witnesses. The execution of the power of attorney by the Respondent No. 1 in favour of Abdul Razzaq is also denied whereas the sale-deed in favour of Respondent No. 2 has been admitted. Hence it is prayed that the suit be dismissed. As observed g above, the said Suit was decreed by the learned Senior Civil Judge but under appeal the decree was set aside and hence this Revision Application.
In support of the revision application, Mr. Abdul Naeem has submitted that in order to prove his case, the applicant has examined himself and has fully supported the plaint and also produced a copy of the mortgage deed alongwith Power of Attorney as well as utility bills etc. in his own name for the shop in question. Under cross-examination he has denied that the amount of Rs. 25,000 was returned to him by the Respondent No. 1 and also that it was a security deposit. Similarly, P.W.2 Muhammad Akram who is a witness to the mortgage deed has supported the case of the plaintiff but he did not know whether the amount of Rs. 25,000 was returned to the applicant by Respondent No. 1. So also, P.W.3 Muhammad Hashim, who was sitting at the shop of P.W. Muhammad Salik when the mortgage deed was being written, has also supported the case of applicant. Finally, per learned Counsel P.W.4 Abdul Razzaq, the applicant's son has again fully supported the case vis-a-vis the execution of the mortgage deed in favour of the applicant and the power of attorney in his favour. On the other hand per learned Counsel the Respondent No. 1 has denied the execution of both these documents and stated that he had returned the advance deposit of Rs. 25,000 to the applicant in presence of Master Amin Salik and Nazeer. Under cross-examination, he stated that the rent agreement for the shop in question was written at the shop of Master Amin Salik on 5-4-1982 but he has not retained any copy of the same. Similarly, D.W.2 Muhammad Amin Salik has deposed that he never wrote the mortgage deed and neither the power of attorney in favour of the applicant or his son respectively. He has also stated that the amount of Rs. 25,000 was received by the Respondent No. 1 as security deposit and was returned by him to the applicant in his presence on 4th or 5th March, 1983. He had counted the money and had given it to the applicant at which time Nazeer was also present. Under cross-examination, he has stated that he had written the rent agreement between the parties and was also a witness to the same. Finally, learned Counsel has referred to the deposition of D.W.3 Babu Abdul Majeed, the respondent's son, who has again supported the respondent's case to the extent that he had purchased the shop in question from the respondent for a sum of Rs. 50,000 and as Rs. 25,000 was to be returned to the applicant such amount was given to him while the balance was given to the Respondent No. 1 in the presence of Master Amin Salik upon which the latter registered the sale-deed in his favour.
On the basis of foregoing evidence on record, learned counsel for the applicant has submitted that the case has been fully established and hence the learned Civil Court had correctly passed the decree in favour of the applicant. However, per learned counsel the learned appellate Court fell into error by allowing the Appeal on a legal ground viz. no Suit for specific performance could be filed on the basis of a mortgage by conditional sale as this was a clog on the equity of redemption as held by the Honourable Supreme Court of Pakistan in Abdul Sattar v. Sardar Begum 1992 SCMR 417. However, per learned counsel the mortgage deed does not satisfy the requirements of mortgage by conditional sale per Section 58(c) of the Transfer of Property Act. In this regard learned counsel has referred to Ganu Mia v. Abdul Jabbar PLD 1959 Dhaka 293 which lays down the essential tests to be fulfilled before a mortgage can be construed as one by way of conditional sale. He has also cited Allahanda v. Sardarangmal PLD 1967 Kar. 859 and Aziz Ullah Khan v. S. H.O. 2001 YLR 263. Consequently per learned counsel the document in question can only be construed as an agreement to sell and hence enforceable under Section 12 of the Specific Relief Act. Learned Counsel's next contention was that even a mortgage by conditional sale was enforceable per settled law. In this regard he has cited Muhammad Ramzan v. Yaqoob Begum 1991 SCMR 819, Muhammad Iqbal Nasim v. Seema Shamim 1991 CLC 2056 and Aman Enterprise v. Rahim Inds. Pak. Ltd. PLD 1993 SC 292. Learned counsel has therefore prayed that this Revision Application be allowed and the Judgment and decree of the learned Civil Court reinstated.
On the other hand Mr. Abdul Qadir Shaikh, learned counsel for the respondents has fully supported the impugned Judgment on the legal plain as the document in question is a mortgage by way of conditional sale and hence no suit can be filed for specific performance of the same, it being a clog on the equity of redemption as held by the Honourable Supreme Court in Abdul Sattar v. Mst. Sardar Begum (supra) and Abdus Saboor v. Saeed Mir PLD 1982 AJK 79. Consequently, the only remedy which was available to the applicants, was to have filed a suit for foreclose or sale of the property or recovery of the mortgage money under Sections 67 and 68 respectively of the Transfer of Property Act. Learned Counsel has further submitted that even otherwise the applicant has failed to prove the mortgage deed and power of attorney since only copies have been produced and no reasons have been given for doing so. In support of his submission learned counsel has relied upon Allah Rakha v. Muhammad Yousaf 1990 MLD 1592, Wazirdullah v. Land Acquisition Collector PLD 2003 Pesh. 235 and Sher Baz Khan v. Adam Khan PLD 2002 Pesh. 1. In this regard per learned counsel P.W. Abdul Razzaq has stated in his examination-in-chief that the originals of the aforementioned document were returned by the applicant to the respondents on the ground that the amount in question would be given to the applicant but this was not done and thereafter the Respondent No. 1 had burnt the same. However, as this stand was never taken in the plaint of the suit hence no evidence could be led on the same. For this submission learned counsel relied upon Binyameen v. Hakim 1996 SCMR 336. Learned counsel's next submission is that the burden of proving both the mortgage deed and power of attorney was upon the applicant since he relied upon the same and execution thereof was denied by Respondent No. 1. As both these documents created financial obligations between the parties they were to be compulsory attested by at least two male witnesses or two female and one male witness in accordance with Article 19 of the Qanun-e-Shahadat Order and the only method to do so was by examining such attesting witnesses as per Article 79 of the Order, which has not been done. Hence per learned counsel these documents have not been proved in accordance with law since only P.W. Muhammad Akram a marginal witness to the mortgage deed has been examined and neither the scribe nor the person who attested the same has been examined. Learned counsel has therefore prayed that this Revision Application be dismissed.
I have heard both the learned counsel and have examined the record very carefully with their assistance. My conclusions are as follows.
Considering the legal aspect of the case as to whether the document in question is a mortgage by way of conditional sale and hence the suit based upon the same is barred under the equity of redemption, it would be seen that the following tests have been evolved in order to establish the true identity of such document per Ganu Mia v. Abdul Jabbar (supra), by Khan, J. (as he then was)--
(a) the existence of a debt;
(b) the period of repayment, a short period being indicative of a sale and along period of a mortgage;
(c) the continuance of the grantor in possession indicates a mortgage;
(d) a stipulation for interest on repayment indicates a mortgage;
(e) a price below the true value indicates a mortgage;
(f) a contemporaneous deed stipulated for re-conveyance indicates a mortgage, but one executed after a lapse of time points to a sale.
The aforementioned tests were cited with approval in the case of Allahanda v. Sardarangmat (supra) by Noorul Arfin, J. (as he then was). Applying such tests to the document in question, it would be seen that under the same (which is titled as a mortgage deed) the Respondent No. 1 Ashiq Ali has stated that he owns, the shop in question and that in order to meet his household expenses, he has borrowed an amount to Rs. 25,000 from the applicant and as security for repayment" has mortgaged the shop in his favour. It has been further stipulated that the amount of Rs. 25,000 would be returned to the applicant by 5-4-1983 failing which the transaction would be converted to an agreement to sell between the parties and the applicant would be considered as the sole owner of the shop. Furthermore, he has given a special power of attorney to Abdul Razzaq the son of the applicant authorizing him to register the sale agreement on this behalf regarding the shop with the applicant. So also it has been stipulated by the Respondent No. 1 that during the period up to 5-4-1983 to interest shall be payable by him to the applicant on the borrowed amount. In view of the foregoing stipulations and conditions contained in the mortgage deed in question I have no hesitation in coming to the conclusion that in fact it is a mortgage by conditional sale within the meaning of Section 58(c) 'of the Transfer of Property Act and hence any suit based upon the same for specific performance would be barred being a clog on the equity of redemption which has been accorded to the mortgager under Section 60 of the Act. In this respect it would also be seen that all along it has been the case of the applicant that the property in question was mortgaged to him by the Respondent No. 1 as security for the loan of Rs. 25,000 advanced to said respondent with a stipulation that in case the money was not returned to the applicant by the due' dates a sale-deed would be executed by the Respondent No. 1 in his favour. Consequently, it cannot be argued at this stage that in fact the document in question was not a mortgage by a conditional sale but an agreement to sell. Hence, in my opinion the suit filed by the applicant upon the document in question would be barred by law and hence no exception can be taken to the impugned order passed by the learned appellate Court. Insofar as the cases cited by learned counsel in support of his submission that even a mortgage by conditional sale could be specifically enforceable as an agreement to convey property, in my opinion the same are distinguishable. In this regard in the case of Muhammad Ramzan v. Yaqoob Begum (supra), the Honourable Supreme Court did not consider Section 58(c) of the Transfer of Property Act at all since the case only turned on the performance of an agreement to sell although it has been observed by the Honourable Supreme Court that the seller had executed a mortgage as well in favour of the buyer earlier in time. The facts of Muhammad Iqbal Nasim v. Seema Shamim (supra) cited by learned counsel are also identical to the foregoing case as those of Aman Enterprises v. Rahim Industries Limited (supra).
As I have reached the conclusion that the suit filed by the applicant based upon a mortgage by conditional sale would not be maintainable being barred by law, there is no further need to discuss the merits of the case. Revision application accordingly stands dismissed alongwith the listed application.
(Rafaqat Ali Sohal) Revision dismissed.
PLJ 2006 Karachi 132
Present: Gulzar Ahmed, J.
MUHAMMAD SALEEM--Plaintiff
versus
Mst. FARIDA SALEEM and 3 others--Defendants
Suit No. 281 of 1998 and C.M.A. No. 7041 of 2005, heard on 3.2.2006.
Specific Relief Act, 1877 (I of 1877)--
----Ss. 39, 42 & 54--Civil Procedure Code, (V of 1908), Ss. 151 & 152---Suit for declaration, permanent injunction and cancellation of gift-deed--Application for amendment of consent decree--Defendant on terms among others that suit property would be sole and exclusive property of defendant and that defendant would not alienate, transfer or encumber property in-question or create any charge thereon during her life time--Decree was drawn on said terms--Parties through their application had sought deletion of the terms that "defendant would not alienate, transfer"--Compromise decree was passed by the Court on agreement of parties whereby parties were at liberty to have it amended or modified by their mutual consent--Sanctity was attached to a decree passed by Court and provisions of Civil Procedure Code, provided for the situation where a decree could be sought to be amended or modified or even altogether set aside, for example by review, revision, appeal, on application under Ss. 12(2) or u/S. 152 of Civil Procedure Code--Defendant was a sole and exclusive owner of property, she in law had a right to deal with it in any manner she considered appropriate--Defendant, in doing so, had right to alienate, transfer, encumber or create charge on the property--Clog under the terms of consent decree, could not justifiably be put on exercising such right by defendant--Bar contained in said clause of the agreement would either be redundant or not in accordance with law--Provisions of Section 151, C.P.C. whereunder application was filed for amendment of decree by deleting the clause therein, were attracted to circumstances of the case whereby inherent power of the Court could justifiably be invoked to meet the ends of justice and to amend or modify consent decree by mutual agreement of parties--Application was allowed. [Pp. 136 & 137] A, B, C & D
AIR 1932 Born. 615; AIR 1968 Gujarat 265; AIR 1969 All. 296; AIR 1957 Tripura 50; AIR 1958 Pat. 618; 1991 SCMR 425; 1997 SCMR 586; AIR 1961 Mysore 175; AIR 1965 Madras 305; AIR 1951 Pat. 299; PLD 2002 Lah. 268; AIR 1941 Lahore 419; PLD 2002 SC 491; 1999 MLD 3156; PLD 1961 (W.P. Lahore 579 and 1988 CLC 1129 ref.
Plaintiff in person.
Mr. Abdul Hameed Iqbal, Advocate for Defendant No. 1.
Date of hearing: 3.2.2006.
Order
This application under Section 151, C.P.C. has been filed by the Defendant No. 1 in which she has prayed to amend the decree passed by consent of the parties to the extent that the Defendant No. 1 be allowed to sell the suit property for the betterment of children and that the plaintiff who is the husband of the Defendant No. 1 has no objection to the grant of this application. The plaintiff has appended his no objection to the grant of this application as prayed. The consent decree in this case was passed on 25-10-1999. The Counsel for the Defendant No. 1 was asked to support the application with necessary case law. Some have been cited by him.
The suit was filed by plaintiff Muhammad Saleem for declaration, permanent injunction and cancellation of documents in which he has alleged that Plot Bearing No. D-2. Blocks 5, Park Lane, Clifton KDA Scheme No. 5., Karachi was purchased by him benami in the name of Defendant No. 2 his father-in-law and the father of the Defendant No. 1 his wife. He has further alleged that from his own fund he has constructed a bungalow on the said plot and that he and his family were residing in it. The plaintiff came to know that the Defendant No. 2 without his permission, secretly and with mala fide intention gifted the said bungalow to the Defendant No. 1 on which dispute arose between the plaintiff and the Defendant No. 1. The plaintiff also learnt that the Defendant No. 1 is selling the said bungalow for which a public notice has appeared in newspaper. The plaintiff has therefore, filed this suit to obtain declaration of his ownership in respect of the said bungalow and cancellation of gift made by the Defendant No. 2 in favour of the Defendant No. 1 and consequential injunction. The suit was resisted by the Defendant No. 1 who filed her written statement and denied the-claim made by the plaintiff. The issues were framed and thereafter the Commissioner was appointed to record evidence of the parties but it appears that no evidence was recorded and when on 25-10-1999 the matter came up in Court, the following order was. passed:
"25-10-1999:
Mr. Nizamuddin Memon alongwith the plaintiff Muhammad Saleem.
Mr. Muhammad Aqil for Defendants Nos. 1 and 2 alongwith Defendant No. 1. Mrs. Fareeda Saleem.
Mr. Abdul Ghafoor Qureshi Commissioner.
At the joint instance of the learned Counsel for the plaintiff and Defendants Nos. 1 and 2, the present suit is taken up, disposed of and decreed with consent of the plaintiff and Defendant No. 1. present in Court in the following terms--
(i) the subject property Bearing No. D-2 Block 5, Park Lane, KDA Scheme No. 5, Karachi, alongwith structure thereon is acknowledged as the sole and exclusive property of the Defendant No. 1;
(ii) the Defendant No. 1 shall not alienate, transfer and/or encumber the said property or create any charge thereon during her life time;
(iii) the plaintiff may continue to occupy the ground floor portion and the Defendant No. 1 shall continue to use and occupy the first floor portion of the said property without any let or hindrance by the plaintiff;
(iv) the plaintiff shall procure and obtain independent utility connections for use at the ground floor portion whereas the existing utility connections shall belong to the Defendant No. 1. However, the plaintiff may continue using the present utilities for a period of three months or further period as may mutually be agreed in writing, until independent connections/services are obtained by him, for the period of three months, as above, the liability to pay for the utility bills shall be that of the plaintiff whereafter the two parties namely the plaintiff and Defendant No. 1 shall be liable for the utilities, respectively availed by them;
(v) liability to pay the property tax shall exclusively be that of the plaintiff;
(vi) parties shall bear their own cost.
Commissioner shall be paid a sum of Rs. 5,000 by the plaintiff for the work he has so far done towards recording evidence. The payment being made within 15 days.
As a result of disposal of the suit, as above, the two Misc. Applications and the Commissioner's report are disposed of.
(Sd.) JUDGE".
In terms of the above order the decree was drawn.
Mr. Abdul Hameed Iqbal, learned counsel has submitted that if the parties have obtained a consent decree on certain terms such terms are merely an agreement/contract between the parties and it can be varied at any time by consent of the parties and there is no impediment in accepting the same. In support of his submission, he has relied upon the cases of Yousaf Ismail Bhai Abdullahbai Lalji v. Abdullabhai Lalji and others AIR 1932 Born. 615; Alarakha Hassan and others v. Amir Hussain Aladmiya and others AIR 1968 Gujarat 265; Habib Mian and another v. Mukhtar Ahmad and another AIR 1969 Allahabad 296; Banka Behari Bhattancherjee v. United Bank of India Ltd. and others AIR 1957 Tripura 50; Bindeshwari Pd. Chaudhary v. Debendra Pd. Sindh and Others AIR 1958 Pat. 618; Sindh Road Transport Corporation v. Major (Rtd.) S. M. Ali Zaheer Khan 1991 SCMR 425; Mian Shamsul Haq and others v. Mian Hamid Haq and others 1997 SCMR 586; Bhima Rama Jadhav v. Abdul Rashid AIR 1961 Mysore 175; R. Subramanita lyer and others v. Thangammal AIR 1965 Madras 305; Ramjanam Tewary and another v. Bindeshwari Bai AIR 1951 Pat. 299; Water and Power Development Authority v. Mian Abdul Rauf PLD 2002 Lah. 268; Ram Rakha Mal Bhandari v. Dina Nath Bhatia and others AIR 1941 Lahore 419; Muhammad Anwar Khan and 5 others v. Chaudhary Riaz Ahmad and 5 others PLD 2002 SC 491; Mst. Zakia Begum v. Niaz Ahmad 1999 MLD 3156; Sher Muhammad and others v. Khuda Bux and another PLD 1961 (W.P. Lahore) 579.
I have considered the submissions made by the learned counsel and have gone through the case-law on the subject and have also perused the record.
Apparently, the case is where the parties by consent have obtained decree from this Court on the terms stated therein and now through the present application the parties seek deletion of term (ii) of the said consent decree and has sought that Defendant No. 1 be allowed to sell the property in question. In the cited judgments which are mostly from the Indian jurisdiction, it has been observed that compromise is a creature of an agreement made between the parties and is subject to the incident of such agreement with an order of the Court added to it. The fundamental principle governing the construction of the contract will be applicable for the construction of the compromise between the parties. At the same time in the case of Banka Behari Bhattancherjee (supra) an observations is made that the consent decree cannot be altered by the Court without consent of all the parties concerned. In the case of Water and Power Development Authority (supra) the Hon'ble Judge of the Lahore High Court has observed that compromise decree only amounts to an agreement between the parties superimposed by seal of Court, but such superimposition of Court's seal would not make compromise decree untouchably sacred as parties still have option to amend terms thereof mutually. In the case of Riaz Hussain v. Mazaray Khan 1988 CLC 1129 Munir A. Shaikh J. (as his Lordship then was) at page 1132 has observed as follows:
"I have considered the arguments. I have not been able to persuade myself to accept the same. Decree Exh.P.6 which is the main stay of the case of the petitioner is merely a consent and a compromise decree and under the law it has no better legal status than agreement between the parties, but of course with authority of the Court superseded to it. Decree, dated 30-11-1965 passed in the suit of Mazaray Khan which he filed against the petitioner challenging mutation of gift in his favour having also been passed on the basis of compromise and agreement between the parties, therefore, similarly can safely be concluded to be an agreement. Decree, dated 30-11-1965, being an agreement later in time therefore, shall be deemed to be an agreement by which the parties intended to modify and supersedes the previous agreement embodies in Exh.P.6."
After examining the law as discussed above, it appears that it is a recognized principle of law that where by agreement of the parties a compromise decree is passed by the Court, the parties are at liberty to have it amended or modified by their mutual consent. The question is that under which provision of law such amendment and modification in the compromise decree can be obtained by the parties with their mutual consent. Apparently there is no gain in saying that sanctity is attached to a decree passed by a Court and the provision of Civil Procedure Code provide for the instance where a decree may be sought to be amended or modified or even altogether set aside for example by review, revision, appeal an application under Section 12(2) or by application under Section 152. In all these provisions, grounds and reasons are provided on the basis of which the decree can be amended or modified or even set aside altogether. In the present case, the parties are not taking any ground or giving any reason for the amendment or modification of a decree as provided in the above mentioned provisions of the C.P.C. rather it is being sought to be amended or modified merely for convenience sake and to suit the interest of the parties. In my respectful view, in a situation like the present one where clause (i) of the consent decree provides an unambiguous acknowledgement that it is a sole and exclusive property of the Defendant No. 1 while clause (ii) provides that Defendant No. 1 shall not alienate, transfer, and/or encumber the said property or create any charge thereon during her life time, apparently are not consistent with each other. Rather the stipulation in clause (ii) is 'in contradiction of the stipulation in clause (i) for the mere reason that once the Defendant No. 1 is acknowledged to be the sole and exclusive owner of the property, bar contained in clause (ii) will seem to be either redundant or not in accordance with law. Once it is acknowledged that the Defendant No. 1 is a sole and exclusive owner of the property she in law has a right to deal with it in any manner she may consider appropriate. In doing so, she has right to alienate, transfer, encumber or create charge on the property and I may say, with all due respect, that a clog cannot justifiably be put on exercising such right by the Defendant No. 1. However, I do not wish to enter upon the debate as to whether the "clause (ii) of the compromise decree is redundant or is. not in accordance with law and I will not record my finding on it as I am not called upon to do so.
The Defendant No. 1 has made an application under Section 151 C.P.C. and in my view, such provision attracts to the facts and circumstances of the present case where inherent power of the Court can justifiably be invoked to meet the ends of justice and to amend or modify the consent decree fey the mutual agreement of the parties. As regards the question of limitation is concerned, as stated above, the compromise decree having been passed by agreement of the parties and so far the agreement remain in the field, the parties have option to amend or modify its term and no limitation in this respect will bar obtaining of such amendment or modification in the agreement.
The consent decree was passed on the agreement made between the plaintiff and the Defendants No. 1 while Defendants Nos. 2 and 3 was merely a pro forma party. Though notice of this application was given but Defendants Nos. 2 and 3 have neither filed any objection nor they have chosen to make appearance in this case. The application is therefore, allowed as prayed.
(Fouzia Fazal) Application allowed.
PLJ 2006 Karachi 138
Present: Gulzar Ahmed, J.
Mian MANZOOR HUSSAIN and 2 others--Plaintiffs
versus
GOVERNMENT OF PAKISTAN through SECRETARY MINISTRY OF COMMUNICATIONS, RAWALPINDI and 2 others--Defendants
Suit No. 201 of 1967, decided on 27.3.2006.
Contract Act, 1872 (IX of 1872)--
----S. 73--Specific Relief Act (I of 1877), S. 19--Compensation for loss caused by breach of contract, grant of--Breach of contract not proved--Effect--Provisions of Section 73 of Contract Act, and Section 19 of Specific Relief Act, would not come into operation. [Pp. 145 & 146] A
PLD 1970 Kar. 229 ref.
Raja Qureshi and Mr. Abdul Ghafoor Qureshi, Advocates for Plaintiffs Nos. 1 and 2.
Mr. Abrar Hassan, for Official Liquidator of Plaintiff No. 3.
Mr. S. Tariq Ali, Standing Counsel for Defendant No. 1.
Mr. Himayat Ali Pirzada, Advocate for Defendant No. 2.
Dates of hearing: 15, 23, 29.9.2005 and 12.10.2005.
Judgment
It is a very old suit of 1967 and I wonder why it has remained pending up till now. The fact that it has happened so is most unfortunate. Indeed, the file is voluminous but that in itself may not be the cause of its pendency for such a long period. Whatever may be the causes, administration of justice requires that the matters brought in Court of law are to be decided and disposed of as early as possible. It so happens in certain cases, that extraordinary delay in the decision of the case takes its tool to the extent that the matter ceases to have either live issue or parties become disinterested for lack of getting appropriate relief within a reasonable period of time. This reflects gravely on the institution of Court of justice and in my respectful view, special attention needs to be given to old pending cases to obviate the miseries of the litigants who have come to the door of Court for seeking justice in accordance with law. Having said so I will not deal with the matter.
This suit is filed for the grant of licences under the contract or for recovery of Rs. 19,38,864.
Plaintiffs in the suit respectively are (1) Mian Manzoor Hussain through his legal heirs, (2) Mian Muhammad Akhtar and (3) Karachi' Road Transport Corporation Limited. The defendants respectively are (1) Government of Pakistan, (2) Province of West Pakistan (subsequently substituted by Province of Sindh) and (3) Commerce Bank Ltd. (subsequently substituted by United Bank Ltd.).
Brief facts of the suit are that through Ordinance XXI of 1959, the Government of Pakistan, the Defendant No. 1 has established a Corporation by the name of Karachi Road Transport Corporation (hereinafter referred to as KRTC) with authorized share capital of seven crore of rupees with subscribed capital in the first instance of three crore of rupees divided into thirty lakh shares of ten-rupees each of which seventeen lakh shares were to be issued immediately,, and remaining from time to time with previous sanction of the Central Government and in the first place offer of forty nine per cent of the issued capital was to be made to public for subscription out of the total paid-up capital of Rs. 1,70,00,000. The Defendant No. 1 held share of Rs. 1,35,42,130 of Rs. 10 each while the remaining were held by the public. KRTC was established to operate road transport services in the Federal Capital and it has acquired a fleet of 456 single decker and 24 double decker new buses from 1959 up to 1961 and earned profit of Rs. 24,53,065. It is alleged in subsequent year, on account of mismanagement and gross negligence the profit of KRTC was substantially reduced and ultimately Defendant No. 1 advanced loan of Rs. 67 lakh to help it to survive in the year 1962/63 but it incurred loss of Rs. 63 lakh. Defendant No. 1 therefore decided to disinvest its share-holding and transfer the management of KRTC to private sector. It is alleged that Plaintiffs Nos. 1 and 2 being one of the biggest and experienced bus operators were approached by the Defendant No. 1 officials. After negotiations, by letter dated 13-6-1963, the Defendant No. 1 offered to sell its shares at per value of Rs. 1,35,42,130 to the Plaintiff No. 2. The Plaintiff No. 2 by letter of the same date i.e. 13-6-1963 accepted the offer of the Defendant No. 1. These letters were treated to be the contract. The contract was acted upon and on payment of Rs. 5 lakh furnishing of Bank Guarantees for payment of balance sale price of the shares and of refund of loan of Rs. 67 lakhs, the Defendant No. 1 shares were transferred to the Plaintiff No. 2 and on 1-7-1963 the management and control of KRTC was taken over by the new Board of Directors nominated by the Plaintiff No. 2 and notified by the Defendant No. 1. Plaintiffs have alleged that the Defendant No. 1 failed to comply with clause No. 13 of the Contract and has sought specific performance of such clause and in the alternative has claimed damages. The prayer made in the suit is as follows:-
"It is therefore, respectfully prayed:
(1) Decree for specific performance for the grant of licences for the . replacement of the entire fleet of 480 buses and for the spare parts, tubes, tyres, machines, tools and equipments for the workshop sufficient to repair and maintain the entire fleet of the value of Rs. 3,50,00,000 and damages amounting to Rupees 15,88,93864 may be passed against Defendants Nos. 1 and 2.
Or in the alternative a decree for compensation or damages of Rs. 19,38,93,864 with interest at 9% per annum from the date of suit till payment thereof may be passed in favour of plaintiffs against Defendants Nos. 1 and 2.
(2) Defendant No. 1 may be restrained from making any recovery from Defendant No. 3 on account of plaintiffs or Defendant No. 3 may be restrained to make any payment to Defendant No. 1 on account of plaintiffs.
(3) Costs of the suit may be awarded to the plaintiffs.
(4) Any other, alternative or additional remedy may be granted to the plaintiffs, as may be just and proper in the circumstances of the case".
Defendants have filed their separate written statement. On the pleading of the parties following issues were framed:--
(1) Whether Defendant No. 1 committed breach of clause 13 of the Agreement incorporated in its letter dated 13-6-1968? If so, what is the effect?
(2) Whether plaintiff suffered losses in the manner as alleged in the plaint?
(3) To what relief, if any, the plaintiffs are entitled and against which of the defendant or defendants?
(4) General.
Plaintiffs have examined (1) Lt.-Col. (Rtd.) S. Z.H. Zaidi employed as an O.S. D. KRTC affairs with the Defendant No. 3 (Commerce Bank Ltd.), (2) Haji Amin, a clerk of Karachi Stock Exchange, (3) Abu Muhammad, Statistical Officer, Federal Bureau of Statistics, (4) Muhammad Ibrahim, Transporter, (5) Safdar Baig, Bus owner, (6) Mian Muhammad Akhtar, the Plaintiff No. 2.
The defendant did not examine any witness and consequently the defendant's side was closed on 3-11-1998. The parties counsel have filed elaborate written note of arguments and oral arguments have also been heard.
Learned Counsel for the plaintiff in the first place has emphasized that the only question that needs to be addressed in the present case is of the enforcement of clause No. 13 of the contract and that the suit having been filed before the winding up order of the Plaintiff No. 3 was passed, therefore, provision of Section 316 of the Companies Ordinance, 1984 has no application to the case in hand and that plaintiff has proved its case for the specific performance and alternatively for grant of damages as claimed in the suit. On the other hand, Mr.Abrar Hasan, learned Counsel for the Official Liquidator of the Plaintiff No. 3 has submitted that all the assets of the Plaintiff No. 3 have been sold and all the claims that were made against the Plaintiff No. 3 have been met.
Learned Counsel has further stated that the file of the said J.M. No. 7/1968 may be examined for the appropriate decision of the matter. Mr. Sayed Tariq Ali, learned Standing Counsel for the Defendant No. 1 has contended that the suit has been filed for the benefit of the Plaintiff No. 3 company and the company having been wound up the prayer for specific performance has become infructuous. He has further stated that the alternative claim for damages cannot be granted where the case for specific performance is not made out. He has further contended that the Plaintiffs Nos. 1 and 2 have received their shares in the company and they have no subsisting claim of whatsoever nature either against the Plaintiff No. 3 or against the Defendant No. 1. He has further contended that no permission as required under Section 316 of the Company Ordinance is obtained and that the Plaintiffs Nos. 1 and 2 have ceased to be the directors. Suit cannot be maintained by them. In support of his submission he has relied upon PLD 1970 Karachi 229. Mr. Himayat Ali Pirzada, learned Counsel for the Defendant No. 2 has contended that the plaintiffs have no locus standi to maintain the suit and has also relied upon the note of written arguments and PLD 1970 Karachi 229.
ISSUE NO. 1.
The main dispute between the parties rests on clause No. 13 of the Defendant No. 1's letter dated 13-6-1963 which has been produced as Exh.11/4 and is admittedly a term of contract. Clause-13 of Exh.11/4 is as follows:
(13) Subject to an upper annual ceiling to be fixed on receipt of your concrete requirements and scrutiny by this Ministry and the Ministry of Commerce, you will be given licences for import of bus chassis and spare parts for the first two years after the transfer to enable you to replace any obsolete buses and to repair such off-road buses out of the existing fleet as can be that bus chassis and spare parts of the required makes and types are not available within the country.
The contract between the parties was acted upon. Plaintiff No. 2 made initial payment of Rs. 5 lakhs to the Defendants No. 1. two bank guarantees, one on behalf of the Plaintiff No. 2 Ex-11/15 for payment of balance sale price of shares amounting to Rs. 1,25,42,130 together with 5-1/2% interest per annum and the other by KRTC Ex-11/16 for payment of loan amount of Rs. 67 lakhs together with 5% interest per annum were furnished to the Defendant No. 1. On 29-6-1963 Defendant No. 1 issued notification Ex. 11/13 in terms of Section 5 of the KRTC Ordinance 1959 by which new Board of Directors of KRTC comprising of Plaintiff No. 2 and his three nominees was notified. On 30-6-1963 through Exh. 11/14, the Defendant No. 1 transferred its shares of the value of Rs. 1,35,41,130 to the Plaintiff No. 2. On 1-7-1963 the new Board of Directors took over the management and control of the KRTC. Soon thereafter, the KRTC under the signature of its Secretary wrote a letter dated 5-7-1963 Exh.11/16 requesting the Defendant No. 1 for implementation of the said clause-13 of the contract and asked for providing of licences for import of spare parts for. 250 off-road single decker buses, replacement of 200 single decker buses and spare parts etc. of buses for the period ending in June, 1965 in the total sum of Rs. 1,37,70,000. After scrutiny of requirement, the Defendant No. 1 through its letter dated 7-5-1964 Exh. 11/21 made an allocation of Rs. 17 lakhs to the KRTC for the import of 50 new bus chassis and spare parts with condition that new as well as the repaired buses be brought on road not later than 31.12.1964 and its report be submitted to the Ministry. In the meanwhile KRTC (Repeal) Ordinance 1964 (Ordinance XXIV of 1964) was promulgated by which the KRTC Ordinance 1959 was repealed. The Plaintiff No. 3 was incorporated as a limited company, on 5-6-1964 and it took over all the assets, liabilities and operations of KRTC. As it appears, that the plaintiffs were not satisfied with import licences and foreign exchange allocation of Rs. 17 lakhs and asked for issuing of further import licences and allocation of foreign exchange. The Defendant No. 1 through its letter dated 27-1-1965 Ex-11/33 addressed to the General Manager of the Plaintiff No. 3, informed that the foreign exchange worth Rs. 17 lakh was granted to the KRTC for importing such parts, material as was to repair 350 buses. Another Rs. 14.50 lakh was granted for importing 50 new chassis with 20% spare parts and building material and that these grants covered 400 buses fleet and it was taken to have met the stipulation and there is no case for further grant of foreign exchange and asked for providing full details of the foreign exchange already granted. It further noted that there is increased availability of chassis from the local assemblers and other requirements and the Plaintiff No. 3 may purchase the same from them as is being done by other operators of buses. It was further informed that transportation being the provincial subject, the plaintiff may approach Provincial Government of West Pakistan.
The evidence shows that the plaintiffs did not honour its commitment with regard to payment of balance sale price of the shares purchased from the Defendant No. 1 and also did not honour commitment for payment of loan amount to the Defendant No. 1. Consequently, the Defendant No. 1 encashed the said two bank guarantees and made recovery of its dues. The record further shows that Plaintiff No. 3 made default in meeting its obligations so much so that winding up petition being JM No. 7/68 was filed against it and on 6-5-1969 the Court passed the order of winding up and appointed the Official Assignee as its Official Liquidator. Defendant No. 3 so also National Bank of Pakistan have filed recovery suits against the plaintiffs. In the plaint the plaintiff's claim is that in terms of clause-13 of the contract, the Defendant No. 1 should have provided licences for replacement of more than 200 chassis, spares, tubes, tyres, machine and machine tools for maintenance of 280 buses for the first year and that by the time the allocation of Rs. 17 lakhs was made, the entire fleet of buses had become incapable of operation and required replacement and by not providing the licence, as above, the Defendant No. 1 has committed breach of contract. The plaintiff has claimed granting of licences for replacement of entire fleet of 480 buses spare parts, tubes, tyres, machines and machine tools for maintenance of entire fleet and workshop or in the alternative compensation of the losses incurred. There is no mention in the plaint that besides allocation of Rs. 17 lakh an allocation of Rs. 17 lacks and Rs. 14.50 lakhs was also made for making import of bus chassis spare parts etc. The fact of allocation Rs. 14.50 lakh is apparently suppressed by the plaintiffs. The Plaintiff No. 2 in his cross-examination has admitted that amount of Rs. 14.50 lakh was further allocated by the Defendant No. 1. It may be noted that although there was an allocation of Rs. 14.50 lakhs to the plaintiff but the plaintiff has not produced any document or record to show that these allocations were utilized by them for the benefit and use of the KRTC or the Plaintiff No. 3. In cross-examination, the Plaintiff No. 2 has stated that the import licences of Rs. 17 lakh and Rs. 14.50 lakh were utilized but stated that details of import made by the plaintiffs against these import licences could not be given by him.
He admitted in his cross-examination that the plaintiffs were not able to obtain release of 50 bus chassis from United Bank Limited as it was not having funds to make payment to UBL and the bank auctioned those 50 chassis. The record therefore, clearly shows that although the Defendant No. 1 did issue import licences and made allocation of foreign exchange to the plaintiffs for purchase of 50 new bus chassis and spare parts in terms of clause 13 of the contract but the plaintiffs are unable to give any details of the imports made by them. On the record, there is information of import of 50 bus chassis but that too was allowed to be auctioned by the Bank. Thus this import of 50 buses became meaningless. The Defendant No. 1 apparently made compliance of said clause-13 of the contract by issuing of import licences and making allocation Of foreign exchange of Rs. 17 lakhs and Rs. 14.50 lakhs but as it appears the plaintiff did not utilize such licences for the benefit and use of the KRTC or the Plaintiff No. 3.
The Plaintiff No. 2 in his evidence has asserted that he has agreed to purchase the shares of KRTC at par value for the reasons that the Government undertook and assured the plaintiffs to compensate the possible losses and one of the concession offered to the plaintiff was the condition that the Government would give plaintiffs import licence for importing 480 new buses. Whatever may be the share price being quoted in Stock Exchange, the contract for purchase of the shares was made in the sum of Rs. 1,35,42,130 out of which the Plaintiff No. 2 merely paid an amount of Rs. 5 lakh to the Defendant No. 1 and against it acquired the assets as shown in Exh. 11/31 of Rs. 2,66,30,525. The liabilities shown in Exh. 11/31 were that of loan of Rs. 67 lakhs of the Government while there were also sundry creditors in the sum of Rs. 23,74,333. Apparently the reason assigned for purchase of shares at par value does not appear to be correct from the above facts and figures. In his cross-examination the Plaintiff No. 2 was confronted with clause-13 of the contract Ex-11/4 and he stated as follows:
"It is correct that no specific number of the buses is mentioned in this paragraph. It is also correct that in para-13 of the Agreement (Exh. 11/4) it was for the Government to fix annual selling after scrutiny of the requirement submitted which was done by the Government."
This statement of the Plaintiff No. 2 altogether demolishes the case of the plaintiffs that by clause-13 of the Contract Exh. 11/4 the Defendant No. 1 has either undertaken or given assurance for issuance of import licence to the plaintiffs of 480 buses. The Plaintiff No. 2 in his cross-examination has also stated that the Committee constituted by the Government has recommended providing of foreign exchange to KRTC in the sum of Rs. 61 lakhs. This report has been produced as Exh. 11/19. It is not either alleged in the plaint nor any evidence to that effect has been brought on record to show that the recommendation of the Committee by any means was binding upon the Defendant No. 1 that the Defendant No. 1 could not have taken its own decision regarding the requirement of the plaintiff. This witness in respect of the representations that are stated to have been made for granting of further licences and foreign exchange in his cross-examination has made following statement.
"After this sanction the plaintiff had made repeated representation to the Government for further sanction for import of the spare parts and for equipments for repair of the buses but no reply was received from Federal Government. I cannot produce any copy of the letter in this connection at this moment but I have proof for that."
Therefore, looking at the facts and circumstances and the evidence that has been brought on record, the only conclusion that can be reached on this issue is that the Defendant No. 1 did not commit breach of clause-13 of the Contract embodied in the letter dated 13-6-1963 Ex-11/4 rather it complied the same as mentioned in Ex. 11/33.
ISSUE NO. 2:
The burden to prove this issue was upon the plaintiff. The suffering of losses is based upon the fact that the Defendant No. 1 committed breach of clause-13 of the contract embodied in the letter dated 13-6-1963 Exh.11/4. Thus loss is claimed for breach of contract. In issue No. 1 it has been found that no breach of clause-13 of the contract embodied in the letter dated 13-6-1963 Exh.11/4 was committed by the Defendant No. 1. Consequently, the suffering of losses by the plaintiffs in operating KRTC or the Plaintiff No. 3 could not justifiably be blamed to the Defendant No. 1. It may be noted that the plaintiff took over from the Defendant No. 1 fleet of buses comprising of 456 single decker buses and 24 double decker buses. Besides, there were stores and spares of the value of Rs. 31,14,444. The Plaintiff No. 2 in his evidence has stated that by the time the allocation of Rs. 17 lakhs was made, the entire fleet of buses were incapable of operation and required replacement. It is unbelievable that the buses as were handed over to the plaintiffs on 1-7-1963 all of a sudden by 7-5-1964 the date of letter Exh. 11/21 making allocation of Rs. 17 lakh came to a pass where it becomes incapable of operation. It was suggested to the Plaintiff No. 2 that in the first place, plaintiffs have not utilized the import licences and foreign exchange allocation for the benefit of KRTC or the Plaintiff No. 3 and it was further suggested that the plaintiffs through their own mismanagement and inexperience have suffered losses and also that the spares and other assets of the KRTC were transferred to Gujrat Bus Service. All these suggestions were denied by the witnesses. The Plaintiff No. 2 in his cross-examination has made the following statements:
"We were the biggest and experienced bus operators in whole of India before partition and after that we were biggest and experienced bus operators in Karachi till 1967."
"In 1966-67 when we had started Gujrat Bus Service in Karachi, we had 10 buses. We had about 100 buses all over India before partition. Before partition our services were confined to Gujrat only."
"Our family members Mian Muzzafar Hussain, Mian Manzoor Hussain, Mian Asghar Hussain, myself and several others were partners in Gujrat Bus Service."
"I cannot say why the business of Gujrat Bus Service was discontinued when it was running in profit. Actually said business was belonged to my cousins and they can only say why this was discontinued by them."
The above evidence apparently shows that the plaintiff's own claim that he was an experienced bus operator is negated and that the losses that are stated to have been suffered by the plaintiff had no nexus with the clause-13 of the contract and that either they were on account of plaintiff's own inexperience or there was no will to continue the bus service. It is admitted in the evidence by the Plaintiff No. 2 that the assets of KRTC/ the Plaintiff No. 3 were sold by him and no amount was paid to the shareholders. The plaintiff's claim for compensation is based on breach of contract. No breach of contract is found. The provision of Section 73 of the Contract Act is not attracted nor the provision of Section 19 of the Specific Relief Act comes into operation as the breach of Contract is not proved.
The Plaintiff No. 2 in his evidence has admitted that there was no contract between the plaintiffs and Defendant No. 2. As regards Defendant No. 3, the Plaintiff No. 2 in his evidence has admitted that the suit against it has been filed as it has allowed encashment of Bank Guarantee to the Defendant No. 1. No illegality in respect of encashment of Bank Guarantee is either established or pointed out. Consequently, there is no evidence or material on record to find that plaintiffs have suffered losses on account of Defendants Nos. 2 and 3.
ISSUES NOS. 3 AND 4:
As the Issues Nos. 1 and 2 have been answered against the plaintiffs, therefore, there is nothing to hold that the plaintiff is entitled to any relief. Consequently both the issues are answered against the plaintiffs and the suit is dismissed.
(Fouzia Fazal) Suit dismissed.
PLJ 2006 Karachi 146
Present: Gulzar Ahmed, J.
DADABHOY INVESTMENTS (PVT.) LTD. KARACHI--Plaintiff
versus
PRIVATIZATION COMMISSION through DIRECTOR-GENERAL, ISLAMABAD and 2 others--Defendants
Civil Suit No. 743 of 2005, decided on 18.4.2006.
Administration of Justice--
----For setting aside an order or to challenge the proceedings; remedy should be availed first of all within the hierarchy of the law under which the forum whose proceedings had been objected to was functioning instead of approaching different forum for the redressal of the grievances. [P. 151] A
PLD 2002 SC 526; PLD 1973 SC 368 and PLD 1997 Quetta 69 ref.
Mr. Aziz. A Munshi, Advocate for Plaintiff.
Mr. Munir A. Malik, Advocate for Defendant No. 1.
Shaikh Abdul Aziz, Advocate for Defendant No. 2.
Mehmood Alam Rizvi, Standing Counsel for Defendant No. 3.
Dates of hearing: 8, 23.11.2005, 14.12.2005, 14.2.2006, 16, 17, 20, 27.3.2006 and 10.4.2006.
Order
These are applications under Order XXXIX, Rules 1 and 2, C.P.C. filed by the plaintiff. In C.M.A. No. 6858 of 2005 the relief claimed is to restrain the Defendant No. 1 from inviting, entertaining, accepting any bid/tender for the sale of assets shares and right of management of Defendant No. 2 or to accept any bid or enter into any negotiations for the said purpose with any other person except the plaintiff till disposal of the suit. In C.M.A. No. 7110 of 2005 the relief claimed is to restrain the Defendant No. 1 from inviting other bidders and holding the meeting of bidders schedules to be held on 14-9-2005 under the auspices of the Defendant No. 1 at Islamabad or any other place for the purpose of inviting bids for sale of the assets/shares/management of the Defendant No. 2 and further restrain the Defendant No. 1 from entertaining or inviting any bids in violation-of the rights of the plaintiff as the highest bidder and/or may have the effect of creating third party interest to the prejudice of the plaintiffs right. Counter-affidavit and additional counter-affidavit are filed by the Defendant No. 1. The Defendant No. 2 has also filed counter-affidavit. Plaintiff has filed rejoinder affidavit as well as additional affidavit.
Mr. Aziz A. Munshi, learned counsel for the plaintiff and Mr. Munir A. Malik, learned counsel for the Defendant No. 1 have made their submissions at length. Mr. Aziz A. Munshi has placed on record a written note of facts and propositions and further two written notes of submissions. Mr. Shaikh Abdul Aziz, learned counsel for Defendant No. 2 and Mr. Mahmood Alam Rizvi, Standing Counsel for Federation of Pakistan, the Defendant No. 3 have adopted the submissions of Mr. Munir A. Malik.
The facts relevant for the determination of the two applications are that the Defendant No. 1 namely Privatization Commission invited bids for the privatization of Defendant No. 2 namely Javedan Cement Limited. Plaintiff submitted highest bid but it was rejected by the Defendant No. 1. The plaintiff ultimately filed a Constitution Petition No. 984 of 1993 against Defendants Nos. 1 and 3 in this Court. This constitution petition was decided vide judgment dated 24-8-1994 delivered by a Division Bench, the operative part of it is as follows:
"In view of the above, we allow the prayer (b) of the petitioners and direct the respondents not to put to any other auction the shares, assets and management of Javedan Cement Limited and/or to open or accept any bids or enter into any negotiations for the said purpose with any other person except the petitioner. The petition is allowed to the above extent with no order as to costs."
The Defendant No. 1 challenged this judgment in the apex Court by Civil Petition No. 282-K of 1994 which was dismissed vide order dated 12-2-1996. It is stated that the deal could not materialize because of pendency of another Civil Petition No. 370-K of 1997 filed by Javedan Cement Mehntkash Union in the apex Court which was dismissed vide judgment dated 6-7-1998. It is pleaded that on 21-4-1999 and 3-5-1999 meetings took place between the plaintiff and Defendant No. 1 and ultimately vide letter dated 24-8-1999 the plaintiff agreed to the terms of Defendant No. 1. on 11.7.2002, the Defendant No. 1 published in daily Dawn inviting an Expression of Interest for acquisition of 85 % shares of Defendant No. 2. Plaintiff filed a contempt application in C.P. No. D-984 of 1993 which was decided vide order dated 15-4-2005 by a Division Bench of this Court. Paras 13 and 14 of this Order are relevant and are reproduced as follows:
"13. There can be no two views about the submission of Mr. Shahanshah Hussain that in view of the judgment of this Court dated 24-8-1994 passed in this petition, which attained finality on dismissal of C.P. No. 282-K of 1994 filed by Respondent No. 2 by the Hon'ble Supreme Court vide judgment dated 12-2-1996, the Respondent No. 2 had no option but to hold negotiations with the petitioner/applicant in the terms as specified in the above judgment. However, in our opinion, prima facie, it appears that the petitioner/ applicant misinterpreted the spirit of such judgment when they presumed that in view of the directions for negotiation with the petitioner contained in the judgment, the Respondent No. 2 were bound to finalize the deal of Javedan Cement Limited with the petitioner/applicant at their terms. There is no denial of the fact that the contents of the minutes of meeting dated 3-5-1999 are correct and show that during the negotiations with Respondent No. 2, the petitioner even did not stick to their earlier offer and they tried to dictate the Privatization Commission for the payment of the balance amount in the shape of furnishing bank guarantee after 60 days of the transfer of Unit to them, which condition was neither in consonance to the condition of sale as laid down in the instructions to Bidders nor acceptable to the Privatization Commission. The submission of Mr. Munir A. Malik with reference to the judgment in the case of Javedan Mehnat Kash (supra), relevant observations reproduced above, has much force that on the pretext of negotiations with the Petitioner/applicant the sale of Javedan Cement Limited could not be delayed by Respondent No. 2 for indefinite period as already more than ten years have passed, thus the action for inviting of fresh bids taken by Respondent No. 2 is fully justified.
The offer made by the Defendant No. 1 as mentioned in the last sentence is referred in para. 10 of the above order in these words:
"To show good faith and bona fide of the Privatization Commission (Respondent No. 2) the learned counsel also extended before this Court that whenever sale of Javedan Cement Limited takes place, the petitioner will not only be at liberty to participate in such proceedings by offering their bid for purchase of Javedan Cement Ltd. but they will also be given option/right of first refusal to match the highest offer, to meet the spirit of the judgment delivered by this Court and also to show respect to this Court."
On 21-5-2005, the plaintiff filed this suit for declaration, permanent injunction and specific performance. In para. 13 of the plaint it is pleaded that the cause of action for the suit has accrued to the plaintiff on 11-7-2002 when Defendant No. 1 invited fresh bid for sale of shares of Defendant No. 2. With the plaint of this suit, the plaintiff filed an application under Order XXXIX, Rules 1 and 2, C.P.C. The Plaintiff did not had this application fixed in Court. On 1-9-2005 C.M.A. No. 6858 of 2005 was filed in which it was alleged that news item has appeared in Dawn dated 26-7-2005, 11-8-2005 and 31-8-2005 inviting intending bidders for clarifications. This application was placed in Court on 1-9-2005 and an order was passed on it of notice to the defendants for 15-9-2005 and in the meantime, Defendant No. 1 was restrained from finalizing any deal with any other party or person which may cause prejudice to the rights and interest of the plaintiff. On 10-9-2005, plaintiff filed C.M.A. No. 7110 of 2005 pleading that despite service of process, Defendant No. 1 has issued press release in Dawn and Jang dated 6.9.2005 inviting bids for sale of Defendant No. 2 and fixed a meeting of bidders on 14-9-2005 at Islamabad. On the same day, order of notice for 13.9.2005 was passed. On this date the Court noted that in view of order dated 1.9.2005, no further interim order is required. On 15-9-2005 matter was adjourned to 28-9-2005 whereafter it was adjourned to 5-10-2005. On 5.10.2005 while the matter was adjourned to 18-10-2005, a note has been made of the statement of the Defendant No. 1 counsel that if the plaintiff wants to exercise the right of first refusal as per the order dated 15-4-2005 passed on contempt application in C. P. No. 984 of 1993, it may do so within a week's time on the terms and conditions prescribed in the bid documents pertaining to the present transaction. The reason for such statement apparently was that the counter-affidavit filed on 26-9-2005 has disclosed the fact that it has received highest offer of Rs. 80 per share from M/s. Haji Ghani Usman & Group on 14-9-2005.
Learned counsel for the plaintiff has first contended that the learned Division Bench of this Court has exceeded in its jurisdiction while passing order dated 15-4-2005 deciding the contempt application of plaintiff in C.P. No. D-984/1993 inasmuch as it has adjudicated the civil right of plaintiff which stood already decided by a Division Bench of this Court through judgment dated 24-8-1994 and upheld by the apex Court vide its order dated 12-2-1996. He has contended that while hearing contempt application, Court's jurisdiction was only to see whether there is contempt or no contempt and it was not the function of such Court to adjudicate upon and decide already decided civil right of the plaintiff up to apex Court. He stated that the order dated 15-4-2005 violates the Division Bench judgment dated 24-8-1994 of this Court and so also the order dated 12-2-1996 of the apex Court. In support of his submission he has relied upon the case of Syed Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823, The State v. Khalid Masood PLD 1996 SC 42, State v. Mujeeb-ur-Rehman Shami PLD 1973 Lah. 1, State v. Tariq Aziz 2000 SCMR 751, Om Prakash Jaiswal v. D.K. Mittal AIR 2000 SC 1136, Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173 and Muhammad Ibrahim v. Syed Ahmed PLD 2000 SC 71.
I have considered this submission of the learned counsel and on its face find that the plaintiff through above submission is assailing the order dated 15-4-2005 passed by a Division Bench of this Court in C.P. No. D-984 of 1993 on a contempt application filed therein by the plaintiff. Admitted fact of the matter is that the plaintiff has not challenged the order dated 15.4.2005 before the higher forum i.e. Hon'ble Supreme Court of Pakistan.
Learned counsel for the plaintiff has not cited any law on the basis of which a Single Judge sitting on the original side while hearing an application for injunction can examine the legality and proprietary of the order passed by Division Bench of this Court more particularly when the parties to the dispute and the subject-matter of the dispute are substantially the same. Hierarchy of the judiciary functions in a disciplined and systematic manner in accordance with rules, practice, procedures and substantive law and I am not aware of any rule, practice, procedure or substantive law where a Single Judge can sit in judgment over a judgment/order passed by a Division Bench of this Court to determine its legality or propriety. The Division Bench by its order dated 15-4-2005 in its wisdom has not only found that no contempt of Court has been committed by the alleged contemners before it but has gone on to consider the fact of Defendant No. 1 inviting fresh bids for the sale of shares of Defendant No. 2 and found it to be fully justified. In reaching such decision, the learned Division Bench took into consideration the fact of plaintiff deviation from its earlier offer the judgment rendered by the apex Court in the case of Javedan Cement Mehnat Kash Union (1998 SCMR 2182). The ultimate effect of the order dated 15-4-2005 apparently seems that the plaintiff has lost the benefit of judgment dated 24-8-2004 passed in C.P. No. D-984 of 1993 which was maintained by the apex Court by its order dated 12-2-1996. In the case of Shaukat Khan v. Asstt. Political Agent Landi Kotal Khyber Agency, (PLD 2002 SC 526). It is observed as follows:
"3. Besides above it is recognized principle of administration of justice that for setting aside an order or to challenge the proceedings remedy should be availed first of all within the hierarchy of the law under which the forum whose proceedings have been objected to is functioning instead of approaching different forum for the redressal of the grievances. Reference in this behalf may be made to the cases (i) Muhammad Ashfaq v. The State, (PLD 1973 S. C. 368) and (ii) Khudai Dad and others v. The State PLD 1997 Quetta 69)."
Consequently, the further submissions of the plaintiff counsel of distinction between exercise of contempt and civil jurisdiction, enforcement of order of apex Court has no bearing to the case where the Division Bench of this Court vide order dated 15-4-2005 has closed the chapter of plaintiffs earlier litigation and its outcome.
Learned counsel for the plaintiff next contended that there is concluded contract between the plaintiff and Defendant
No. 1 and the Defendant No. 1 is liable to specifically perform the said contract. In this regard the counsel referred to the minutes of meeting dated 3-5-1999 annexure B' with the plaint, the plaintiff's letter dated 3-5-1999 and 24.8.1999 respectively annexuresB-l' and 'C' with the plaint. In the minutes of meeting dated 3-5-1999 the decision is recorded in para. 10 which provide that plaintiff will furnish its final offer which will be taken up with PC/Committee of PBP for their consideration and all contingent liabilities will be bidder's responsibility.
In the letter dated 3-5-1999, plaintiff has made an offer in terms of the minutes of the same date. Yet again by letter dated 24-8-1999 the plaintiff has made an offer and requested that it may be accepted by the
Defendant No. 1. No acceptance of the plaintiff's offer came from the side of the Defendant No. 1 for almost two years and eleven months. Rather, the
Defendant No. 1 through annexure D' to the plaint published inDawn' dated 11-7-2002 invited expression of interest for the acquisition of minimum of 85% of shares of Javedan Cement Ltd. Admittedly, on this publication, the plaintiff filed contempt of Court Application in the said C.P. No. D-984 of 1993 which came to be decided by order dated 15-4-2005 which has already been referred to above. In its most simplest form, a contract comprises of an agreement which is enforceable in law. To establish the fact of existence of an agreement, a party has to show that there was a proposal by it to another party and that another party has accepted its proposal. As noted above, through order dated 15-4-2005 passed in C.P. No. D-984 of 1993, the plaintiff apparently seems to have lost the benefit of judgment dated 24-8-1994 passed in the same C.P. and maintained by the order dated 12-2-1996 of the apex Court. Independently of the above circumstance, there are merely offer of the plaintiff through letter dated 3.5.1999 and 24-8-1999 to which there is no acceptance by the Defendant
No. 1. Rather by placing the advertisement in `Dawn' dated 11-7-2002, the Defendant No. 1 has expressed its non-acceptance or rejection of the plaintiffs offer contained in the said two letters. Thus prima facie, no contract between the plaintiff and the Defendant No. 1 came into existence which could be specifically enforced by this Court. Similar is the position with regard to the relief of declaration and injunction sought by the plaintiff as prima facie, plaintiff has not been able to establish through material that the Defendant No. 1 is under an obligation to sell and transfer the shares, assets and management of the
Defendant No. 2 to the plaintiff. The obligation as is sought to be enforced is said to have arisen out of the judgment dated 24-8-1984 passed in C.P. No. D-984 of 1993 and upheld by the order dated 12-2-1996 of the apex Court which as noted above through order dated 15-4-2005 has been brought to naught.
Further the plaintiff has not been able to prima facie, establish a contract on the subject-matter with the Defendant No. 1.
Mr. Munir A. Malik, learned counsel for the defendant has taken an objection to the maintainability of the suit on the ground that it is barred by res judicata and in support has relied upon the cases of Muhammad Chiragh-ud-Din Bhatti v. The Province of West Pakistan, (1971 SCMR 447), Asif Jehan Siddiqui v. Government of Sindh, (PLD 1983 SC 46), Abdul Majeed v. Abdul Ghafoor Khan, (PLD 1982 SC 146) and Mehdi Hassan v. Zulfiqar Ali, (PLD 1960 (W.P) Lahore 751).
In this respect, learned counsel for the plaintiff has submitted that the question regarding maintainability of the suit on the principle of res judicata may be adverted to after a preliminary legal issue is framed. The Defendant No. 1 who is the relevant party has already filed its written statement. Consequently the following preliminary legal objection is framed:-
"Whether the suit herein is barred by the principle of res judicata?
Office is directed to fix this matter for hearing of arguments of the Advocates of the parties on the above preliminary legal objection.
By a short order passed on 10-4-2006 the listed-applications were dismissed. The above are the reasons for it.
(Fouzia Fazal) Applications dismissed.
PLJ 2006 Karachi 153 (FB)
Present: Sabihuddin Ahmed, C.J., Muhammad Mujeebullah Siddiqui and Khilji Arif Hussain, JJ.
RIMPA SUNBEAM CO-OPERATIVE HOUSING SOCIETY LTD. through MANAGING DIRECTOR--Plaintiff
versus
KARACHI METROPOLITAN CORPORATION through ADMINISTRATOR--Defendant
Suits Nos. 639 of 1987, 181 and 789 of 1991 and 735 of 1993, heard on 12.12.2005.
Per Sabihuddin Ahmad, C.J.,; Muhammad Mujeebullah Siddiqui and Khilji Arif Hussain, JJ, agreeing.--
Constitution of Pakistan (1973)--
----Art. 143 & Fourth Sched., Concurrent Item 46--Valid in terms of--Act of Provincial Legislature relating to a subject falling within the Concurrent Legislative List of the Constitution was repugnant to an act of Parliament, whether enacted before or after the provincial law, the latter would invariably prevail--Concurrent Item 46 in the Fourth Sched. of the Constitution confers legislative power upon the Parliament and a Provincial Assembly to make laws with respect to jurisdiction and powers of all Courts except the Supreme Court with respect to any of the matters contained in the aforesaid. [Pp. 155, 157 & 161] A, B & D
West Pakistan Civil Courts Ordinance, 1962 (II of 1962)--
----S. 7 [as amended by Sindh Civil Courts (Amendment) Ordinance, (XXX of 2002)]--Jurisdiction of High Court to entertain suits is basically neither the ordinary nor the extraordinary original' civil jurisdiction of the High Court but simply a District Court jurisdiction, which was conferred and regulated by a Provincial Statute--Karachi Courts Order, 1956, was not a law made by the Parliament in the exercise of powers under the Concurrent Legislative List of the Constitution of Pakistan--No conflict between a Federal and Provincial Law existed in said context and, therefore, in accordance with Section 7 of the Sindh Civil Courts Ordinance, 1962, the jurisdiction of Sindh High Court to try Civil Suits is confined to matters where the pecuniary value of the subject--matter exceeds Rs. 30,00,000--All other suits are liable to be tried by the District Courts. [P. 160] C
PLD 1961 Kar. 565; (PLD 1974 Kar. 345; 2005 SCC 591; PLD 1975 Kar. 944 and PLD 1968 SC 171 ref.
Per Muhammad Mujeebullah Siddiqui, J. agreeing with Sabihuddin Ahmad, C.J.--
His Lordship after finding out the genesis of the original civil jurisdiction of the Sindh High Court and examination of the issue whether said jurisdiction was ever conferred by an Act of the Federal Legislature concluded that: "From a survey of the statutes dealing with the original civil jurisdiction of the Chief Court of Sindh/Sindh High Court, there is no scintilla of doubt in my mind that at no point of time any original civil jurisdiction was conferred on the Court of record functioning at Karachi by the Federal Legislature. In fact the Federal Legislature has not enacted any law pertaining to the jurisdiction of the Sindh High Court functioning--Sindh Courts Act 1926 was admittedly Provincial Legislature--Thereafter certain orders were passed by the Governor--General and President of Pakistan including Karachi Courts Order, 1956 and after integration of Federal Capital of Pakistan comprising Karachi in the West Pakistan as Karachi Division and on dismemberment of the West Pakistan as Karachi Division of the Province of Sindh. All the laws which have conferred the jurisdiction on the Chief Court/High Court, or have curtailed the jurisdiction were passed by the Provincial Legislature. At this juncture, I would like to point out that under Art. 211 of the, Constitution, 1956 the Constituent Assembly had clearly made a distinction in the powers vested in the President under Clause (2) of Art. 211 and the powers vested in the Parliament (Federal Legislature) under Clause (3) of the Art. 211 and has specifically provided that the President was empowered to make laws pertaining to the jurisdiction of High Court functioning in the Federal Capital and that the Parliament had no power to make laws in the matters relating to the High Court. Thus, no question of repugnancy arises between any provision of an Act of Provincial Assembly and the Act of Majlis-e-Shoora (Parliament) as envisaged under Art. 143 of the Constitution of Pakistan, 1973--Since there is no inconsistency, conflict or repugnancy therefore, the objection to the validity of various Provincial Laws enhancing pecuniary jurisdiction of the District Judge at Karachi is without substance and consequently, I fully agree with the view expressed by the Hon'ble Chief Justice to the effect that there is no law made by the Parliament in exercise of the powers under the Concurrent Legislative List pertaining to the original civil jurisdiction of the Chief Court of Sindh, erstwhile West Pakistan High Court Karachi Bench and Sindh High Court and consequently, there is no conflict as envisaged under Art. 143 of the Constitution of Pakistan and thus, in accordance with S. 7 of the Sindh Civil Court Ordinance, jurisdiction of High Court to try civil suits is confined to matters where the pecuniary jurisdiction exceeds Rs. 30,00,000 and all other suits are liable to be transferred and disposed of by the District Courts--I would like to add only this much that from the year 1981, there is one provincial law only in the field governing the original civil jurisdiction of Sindh High Court and District and Subordinate Court at Karachi. It is Sindh Civil Court Ordinance, 1962. There is no Federal Law at all in the field and never occupied the field, therefore the question of repugnancy, inconsistency or conflict in Federal and Provincial Law does not arise." [Pp. 176 & 177] E
Mr. Iqbal Kazi, Advocate for Plaintiff (in Suit No. 639 of 1987).
Mr. Manzoor Ahmed, Advocate for C.D.G.K.
Mr. Rashid A. Razvi, Amicus Curiae.
Mr. Anwar Mansoor Khan, A.G. Sindh.
Date of hearing: 12.12.2005.
Judgment
Sabihuddin Ahmed, C.J.--This Full Bench has been constituted on the Reference of Honourable Mr. Justice Shabbir Ahmed (as his Lordship then was) as to whether the provisions of the Sindh Civil Courts (Amendment) Ordinance 2002, transferring suits of the value of Rs. 30,00,000 and less were constitutionally valid in terms of Article 143 of the Constitution.
Before proceeding to discuss the merits of the contentions raised it may be pertinent to keep in view the relevant statutory dispensation on the subject involved. The first in point of time appears to be the Sindh Courts Act of 1926, whereby Courts were created for the Chief Commissioners, Province of Sindh, which was enforced in 1940. While District Court were established in all other Districts, like such Courts in all other Districts (except the Presidency Towns of Bombay, Calcutta and Madras) were declared to be the principal Civil Courts of original jurisdiction. No District Court was set up for the district of Karachi and under Section 8 the Chief Court of Sindh was declared to be the principal Civil Court of original jurisdiction for the District of Karachi. In. other words all suits not falling within the jurisdiction of the Courts of Small Causes were triable by the Chief Court. On 30th September 1955, the Constituent Assembly passed an Act merging all the Provinces in West Pakistan and some States and Tribal Areas into the Province of West Pakistan this Act received the assent of the Governor-General on 3rd October and Section 7 empowered him to establish by an order a High Court for the Province of West Pakistan to replace, inter alia, the Sindh Chief Courts. Such order was issued on 9th October and under Section 5 thereof the Bench of the High Court at Karachi was required to exercise the same original civil jurisdiction as was being exercised by the Sindh Courts under Section 8 under the 1926 Act.
On 23rd March, 1956 Pakistan's first Constitution came into effect. Under Article 211(1) Parliament was authorized to make a law provided for determination of the Capital of the Federation and till such time as it was done, the area comprised in the Capital before the Constitution day (District of Karachi) was to continue as the Capital. Under sub-Article (2) the administration of the capital was to vest in the President, who was empowered to make provisions, by order relating to its government and administration and with respect to jurisdiction of any Courts exercising the jurisdiction of the High Court therein. Under sub-Article (3) the Parliament was empowered to make laws for the Federal Capital with respect to matters enumerated in the Provincial Legislative List.
In exercise of the powers under Article 211(2), the President promulgated the Karachi Courts Order, 1956, whereby a District Court was established for the Federal Capital (Karachi) for the first time. Under Section 4(2) of the Order the jurisdiction of the Court in civil suits and appeals was only confined to the pecuniary value of the subject-matter up to Rs. 25,000 and such matters wherein evidence had not yet been recorded were required to be transferred to the District Court, the High Court continued to exercise original jurisdiction over matters exceeding such amount.
Through President Order 9 of 1961 dated 1st July, 1961 known as West Pakistan Administration (Merger of Federal Territory of Karachi) Order, Karachi was merged into a Province of West Pakistan. Such merger had no immediate effect upon the jurisdiction of the Courts except to the extent that the powers of the President under Article 211(2) and those of the Parliament under Article 211(3) came to be exercised by the Government and the legislature of the Province of West Pakistan. On 8th January, 1962, the Governor of West Pakistan promulgated the West Pakistan Civil Courts Ordinance, 1962, purporting to consolidate and unify the law relating to Civil Courts in the province. The Courts of District Judges were declared to have original jurisdiction without limit as regards value in the rest of the province under Section 7 and under Section 9, the High Court was authorized to determine the jurisdiction to be exercised in original civil suits by a Civil Judge through a Notification dated 13th September, 1973. The High Court in fact conferred jurisdiction upon Civil Judges of the First Class to entertain suits irrespective of the value of the subject-matter. Nevertheless for the District of Karachi, a special dispensation was made so as to confine the jurisdiction of the District Court to the extent of the value of Rs. 25,000 and the original jurisdiction of the High Court beyond such limit was preserved. Similarly, while a number of enactments including the Sindh Courts Act and the Karachi Courts Order were repealed, Section 8 and Section 4(2) respectively of the two statutes conferring jurisdiction upon the High Court were preserved.
The West Pakistan Civil Courts Ordinance subsequently (being renamed as Sindh Civil Courts Ordinance) was amended to raise the limits of pecuniary jurisdiction of the District Court of Karachi from time to time. In 1970, it was raised to 50,000, in 1981 up to 100,000, in 1992 upon 500,000 and in 2002 up to 30,00,000. Except for the amending Ordinance of 1970, all the three subsequent statutes postulated transfer of pending cases falling within the pecuniary jurisdiction of the District Court on account of the. legislation in question. Therefore, from the stand point of provincial legislation on the subject the District Court had exclusive jurisdiction to entertain original suits falling within its jurisdiction in terms of pecuniary limit.
Nevertheless Mr. Iqbal Kazi, learned Counsel for the Plaintiff argued with a great deal of emphasis that the original civil jurisdiction of the High Court in respect of Karachi under the Sindh Courts Act, 1926, was protected and preserved by Federal Legislation, i.e. Karachi Courts Order, the High Court Establishment Order, 1970, and the Sindh and Balochistan High Court Order, 1976. He urged that by virtue of Article 143 of the Constitution when in respect of a matter falling within the concurrent Legislative List legislation had been enacted both by the Provincial legislature and the Parliament, the Federal Law whether made before or after the Provincial law must prevail.
Indeed, there could be no cavil with the proposition that under Article 143 of the Constitution whenever an Act of a Provincial legislature relating to a subject falling within the concurrent Legislative List was repugnant to an Act of Parliament, whether enacted before or after the provincial law, the latter would invariably prevail. It is also not disputed that Item 46 of the concurrent Legislative List in the 4th Schedule confers legislative power upon both the Parliament and a Provincial Assembly to make laws with respect to jurisdiction and powers of all Courts except the Supreme Court with respect to any of the matters contained in the aforesaid. Nevertheless, the following two questions arise, which need to be answered:
(i) Whether the jurisdiction available with the High Court of Sindh to try civil suits was conferred by Federal Legislation at any point of time and whether its curtailment by Provincial Legislation is of no lawful effect?
(ii) Whether any repugnancy exists between the Federal and the Provincial law relating to the jurisdiction of the High Court to. try suits on the original side?
Mr. Rashid. A. Rizvi, learned amicus curiae, on the other hand, argued that the jurisdiction to try suits was never conferred upon the High Court by an Act of Parliament or any Federal Legislation and, therefore, no question of any kind of conflict or repugnance was involved. Learned Counsel for the parties referred to a number of precedents, wherein the genesis of the original civil jurisdiction presently exercised by the High Court of Sindh has been discussed in great detail, i.e. Firdous Trading Corporation v. Japan Cotton and General Trading Company (PLD 1961 Karachi 565), Asad Ali v. Settlement Commissioner (PLD 1974 Karachi 345). Mr. Razvi also referred to a recent judgment of the Supreme Court of India in Jamshed and Guzdar v. State of Maharashtra (2005 2 SCC 591) and placed before us a copy of the pronouncement of a 05 Member Bench of the Honourable Supreme Court in Province of Sindh v. Haji Razak and others, decided on 2nd July, 1975.
For the purposes of determining inconsistency, it needs to be considered whether the jurisdiction upon the High Court to try suits beyond certain pecuniary value was conferred by a Provincial or a Federal statutes and in the case of a former whether such jurisdiction was enlarged or curtailed by a Federal law. Admittedly, the Sindh Courts Act, 1926, whereby the Chief Court and District Courts for Sindh were established was a provincial law enacted by the Bombay Legislative Assembly and the Chief Court was declared to be the principal Civil Court of original jurisdiction for the District of Karachi under Section 8 of the Act. The jurisdiction of the Court was substantially affected by the Karachi Courts Order, 1956 and subsequently, by the West Pakistan Civil Courts Ordinance, 1962, the former being a Federal law and the latter a Provincial law.
As far as the other Federal Laws operating in the field are concerned, it is important to mention that the High Court of West Pakistan Establishment Order, 1955, the High Court Establishment, 1970, and the Sindh and Balochistan High Courts Order, 1976, merely preserved the original jurisdiction being exercised by the Chief Court or the High Court. None of these legislative instruments enlarged or curtailed such jurisdiction. Such provisions never had the effect of altering the terms or the statutes of the legal provisions under which jurisdiction was conferred.
The Karachi Courts Order, 1956, nevertheless was a legal instrument of a special nature in the context of the present controversy. It needs to be kept in view that upon the enforcement of the Constitution of 1956, Karachi happened to be the Federal Capital and was required to remain so until the Parliament by law determine any other area to be the capital under Article 211(1) of the Constitution. By virtue of sub-Articles (2) and (3) of the aforesaid Article, the administration of the capital was to vest in the President and the Parliament was authorized to make laws with respect to matters falling in the Provincial Legislative List as regards the area of the capital. Under the 5th Schedule to the Constitution Item 16 in the Federal List only related to constitution, organization and jurisdiction of the Supreme Court and Item 29 to powers of other Courts only with respect to matters covered by the Federal List and Item 18 of the concurrent list in respect of those falling within that list. Item 92 of the Provincial List, however, spoke of jurisdiction and powers of all Courts except the Supreme Court with respect to any other matters in the Provincial List.
As is evident from the preamble to the Karachi Courts Order, the aforesaid Order was made by the President in the exercise of his powers under Article 211(2). In other words, the source of authority was not that of the federation but only the special powers vested in him for government and administration of the federal capital, which would in any other area be exercisable by the provincial government. It must, therefore, be stated that the Karachi Courts Order was neither an Act of Parliament nor a federal law in the strict sense. Therefore, we are not impressed by the contention that the original jurisdiction available to the High Court to entertain suits of the value of Rs. 25,000 above could not be curtailed by any subsequent provincial law enacted even after the merger of the erstwhile federal territory of Karachi into the Province of West Pakistan.
With the object of establishing a uniform pattern of Civil Courts throughout the Province of West Pakistan, the West Pakistan Civil Courts Ordinance was promulgated on 9th January, 1962. Through Section 7 the Courts of District Judges in the province several enactments in a number of statutes relating to establishment and jurisdiction of Courts in different areas was repealed. The Sindh Courts Act, 1926 and the Karachi Court Order, 1956 were also repealed except for Section 8 of the former and Section 4(2) of the latter, which enabled the Karachi Bench of the High Court to exercise original jurisdiction in suits of the value exceeding Rs. 25,000. However, through subsequent amendments in the Ordinance the jurisdiction of District Courts was enhanced to Rs. 100,000 in 1981, Rs. 500,000 in 1992 and Rs. 30,00,000 in 2002. The latter two Ordinances postulated transfer of suits of the enhanced value of the District Courts from the High Court to such Courts. Mr. Iqbal Kazi urged that the amendment in the Ordinances only purported to enhance the jurisdiction of the District Courts and would have no bearing upon that of the High Court. Consequently, at best, it could be stated that where the value of the subject-matter exceeded Rs. 25,000 but fell short of Rs. 30,00,000 the jurisdiction of the High Court and the District Court was concurrent.
The above contention requires us to examine the genesis of the jurisdiction of the Sindh High Court to entertain ordinary suits where the value of the subject-matter exceeds a certain amount. Fortunately, the issue is covered by variety of precedents arising under different contexts. The first case in point seems to be the pronouncement of Wahiduddin Ahmed, J., in Firdous Trading Corporation v. Japan Cotton and General Trading Company Limited (PLD 1961 Karachi 565). It was urged that no Court-fee was payable on an appeal against a decree passed by a learned Single Judge in a civil suit on the ground that the Court Fee Act did not stipulate any fee on an appeal against the judgment of a Single Judge in the exercise of the ordinary original civil jurisdiction of the High Court. It was explicitly held that the jurisdiction conferred upon the Chief Court of Sindh under the Sindh Courts Act, 1926, to act as the principal Civil Court of original jurisdiction for the District of Karachi, which was being exercised by the Karachi Bench of the West Pakistan High Court was completely different from the ordinary original civil jurisdiction available to certain High Court under their Letters Patent and was in fact only a District Court's jurisdiction.
No doubt, the view in Firdous Trading Corporation was not followed by Division Bench in Haji Razak v. Usman and others (PLD 1975 Karachi 944), where Dorab Patel, J., after tracing the history of judicial fora in the British India came to the conclusion that the jurisdiction to try suit was part of the ordinary original civil jurisdiction of the Court.
Mr. Rashid A. Razvi, learned amicus curiae, however, has placed an unreported decision of the Honourable Supreme Court in Province of Sindh v. Haji Razak, whereby a five-Member Bench proceeded to reverse the findings of the Division Bench mentioned above and explicitly held that the jurisdiction to try civil suits was Special District Court's jurisdiction exercisable by the Sindh High Court and could not be treated as the ordinary civil jurisdiction of a High Court. The view taken in Firdous Trading Company was expressly approved.
Mr. Iqbal Kazi, however, placed reliance upon the pronouncements of the Hon'ble Supreme Court in Ahmed Khan vs. The Chief Justice and Judges of the High Court, (PLD 1968 SC 171) and a Pull Bench of this Court in Asad Ali vs. Settlement Commissioner, (PLD 1974 Karachi 345) in support of his point of view. In both these cases, their lordships have dilated upon the jurisdiction of the Presidency High Courts of Bombay, Calcutta and Madras to entertain suits conferred by the respective letters patent establishing such Courts. Indeed, there could be force in learned counsel's contentions if such jurisdictions were conferred upon this Court through letters patent, which might have force of an Act of Parliament. Nevertheless, admittedly, Letters Patent of the Bombay High Court were never extended to the Chief Court of Sindh and those of the Lahore High Court whose jurisdiction was extended to the Bench at Karachi under the Establishment of West Pakistan Act, did not confer any jurisdiction to entertain suits. It is, therefore, evident that such jurisdiction being conferred by a provincial law, no question of any repugnancy arises.
The upshot of the above discussion, therefore, is that the jurisdiction of this Court to entertain suits is basically neither the ordinary nor the extraordinary original civil jurisdiction of the High Court but simply a District Court jurisdiction, which was conferred and regulated by provincial statutes. The Karachi Courts Order, 1956, was also not a law made by the Parliament in exercise of powers under the concurrent Legislative list.
For the foregoing reasons, we are clearly of the view that there is no conflict between a federal and a provincial law in the above context and, therefore, in accordance with Section 7 of the Sindh Civil Courts Ordinance, the jurisdiction of this Court to try civil suits is confined to matter where the pecuniary value of the subject-matter exceeds Rs. 30,00,000 all other suits are liable to be tried by the District Court.
(Sd.) SABIHUDDIN AHMED, C.J.
(Sd.) KHILJI ARIF HUSSAIN, J.
Muhammad Mujeebullah Siddiqui, J.--I agree with the reasons assigned and the conclusion drawn by my lord Hon'ble Chief Justice. However, I would like to record a separate note in support of the opinion recorded by the Hon'ble Chief Justice.
The main thrust of arguments addressed by Mr. Iqbal Qazi, learned counsel for the plaintiff is, that, Section 7 of the Civil Courts Ordinance, 1962, as amended by Sindh Civil Courts (Amendment) Ordinance 2002, enhancing the pecuniary limits of original civil jurisdiction of the subordinate Courts and the District Judges in Karachi Districts to Rs. 30,00,000, and restricting the jurisdiction of the Sindh High Court, in civil suits and proceedings of the value exceeding Rs. 30,000,000 is repugnant to the provision of law enacted by the Federal Legislature, and therefore, by virtue of the provisions contained in Article 143 of the Constitution of Islamic Republic of Pakistan, the provision contained in Section 7 of the Sindh Civil Courts Ordinance, 1962 to the extent of repugnancy is void. Consequently the Federal Law conferring pecuniary jurisdiction on the Sindh High Court in relation to the civil suits and proceedings in excess of Rs. 25,000, shall remain intact. The existing law shall prevail and the Sindh High Court shall continue to have pecuniary jurisdiction pertaining to the civil suits and proceedings of value exceeding Rs. 25,000 in exercise of its original civil jurisdiction. The points for consideration have been very ably formulated by the Hon'ble Chief. Justice which cover the entire gamut of controversy.
It is provided in Article 143 of the Constitution of the Islamic Republic of Pakistan, that if any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) is competent to enact, or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent Legislative List, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, or, as the case may be, the existing law, shall prevail and the Act of the Provincial Assembly shall, to the extent of repugnancy, be void.
Mr. Iqbal Qazi, contended that the Provincial Assembly can confer jurisdiction on the District and Subordinate Courts but cannot take away the jurisdiction of the High Court which is conferred by the Federal Legislature at any time before the commencing day of the Constitution. He maintained that civil original jurisdiction was originally conferred on Chief Court of Sindh, by a provincial statute namely Sindh Courts Act, 1926, but subsequently on establishment of District and Subordinate Courts in Karachi by the Federal Government in the year 1956, the original civil jurisdiction in respect of the civil suits and proceedings in excess of Rs. 25,000 was conferred by the Federal Legislature and consequently the pecuniary jurisdiction to this extent can not be taken away by any provision of the Act of Provincial Assembly and any jurisdiction conferred in this behalf on the Civil Court would not take away the jurisdiction vested in High Court but shall at the most be treated as concurrent jurisdiction.
As rightly observed by the Hon'ble Chief Justice, it is imperative to find out the genesis of the original civil jurisdiction of the Sindh High Court and to examine whether this jurisdiction was ever conferred by any Act of the Federal Legislature.
It is admitted position that Sindh Courts Act, 1926 under which the Chief Court of Sindh was established is a provincial law namely Bombay Act No. VII of 1926. It was provided in Section 8 of the said Act that the Chief Court of Sindh shall be the principal Civil Court of original jurisdiction of the Civil District of Karachi. This legal dispensation continued till the independence and up to 22nd July, 1948. On this date the Governor General of Pakistan issued G.G.O. 14 of 1948, (The Pakistan Provisional Constitution (Fourth Amendment) Order, 1948) in exercise of the powers conferred by Section 9 of the Indian Independence Act, 1947. Through this G.G.O Section 290-A was inserted in the Schedule to the Pakistan (Provisional Constitution) Order, 1947, thereby amending the Government of India Act, 1935, Section 290-A inserted in the Government of India Act, 1935 read as follows:
"290-A. Establishment of the Capital of the Federation.--(1) Notwithstanding anything contained in the preceding sections, the Governor-General may by order demarcate, for purposes of the Capital of the Federation, an area forming part of a Province, and thereupon so much of the area as may be specified in the said order shall cease to form part of that Province.
(2) The Governor-General may by order make, in respect of the area demarcated for purposes of the capital of the Federation, such provisions--
(a) for its government and administration;
(b) for varying the composition of the Legislature of the Province affected thereby and the representation in the Federal Legislature of that Province;
(c) with respect to the laws which are to be in force in the area;
(d) with respect to the jurisdiction, expenses or revenue of any Court theretofore exercising the jurisdiction of a High Court in the area;
(e) with respect to apportionments and adjustments of and in respect of, assets and liabilities; and
(f) with respect to other supplemental, incidental and consequential matters;
as he may deem necessary or proper.
(3) Any provision with respect to the jurisdiction of a High Court contained in an order made under this section shall be subject to the provisions of Chapter II of Part IX of this Act, except to the provisions of sub-section (1) of Section 230 and of sub-section (2) of Section 231 thereof shall not apply.
(4) The Governor-General may by an Order alter, amend, modify any order made under this Section."
A perusal of the above provision shows that under sub-section (2)(b) the Governor-General was empowered to make provisions with respect to the jurisdiction, expenses or revenues of any Court, thereto, exercising the jurisdiction of a High Court in the area. On 23rd July, 1948 Governor-General issued G.G.O. 15 in pursuance of the resolution passed by the Constituent Assembly of Pakistan, that the Capital of Pakistan shall be located at Karachi, and further that all executive and administrative authority in respect of Karachi and such neighbouring areas which in the opinion of the Central Government may be required for purposes of the capital of Pakistan shall vest in and shall be exercised by or on behalf of the Government of Pakistan and the Legislative power shall vest in the Federal Legislature. In exercise of the powers under sub-section (1) of Section, 290-A of the Government of India Act, 1935 as well as under sub-section (2) of the said section, which contained that the Governor-General may make provisions as deemed necessary with respect to the laws which are to be in force in that area, and with respect to jurisdiction of any Court theretofore exercising the jurisdiction of the High Court, and the other incidental and consequential matters, an order was issued to be cited as Pakistan (Establishment of the Federal Capital), Order, 1948. Under Article 6 of this order it was provided that unless and until other provision is duly made, all enactments of laws, all notifications, orders, schemes, rules, forms or bye-laws issued, made, or prescribed thereunder, which immediately before the date appointed under Article 3 when the Karachi shall cease to form part of the Province of Sindh, as are in force in, or prescribed for, any of the areas comprised in Karachi, shall continue to be in force and shall have effect in Karachi. It was specifically provided in Article 9 that subject to the provisions of sub-section (3) of Section 290-A of the Government of India Act, 1935, the Chief Court of Sindh shall continue to be the High Court for Karachi and shall retain such jurisdiction as it has immediately before the date appointed under Article 3.
It is evident from a bare perusal of Article 9 of G.G.O. 15 of 1948 that although under sub-section (2) of Section 290-A of the Government of India Act, 1935, the Governor-General was empowered to make provision in respect of the jurisdiction of any Court theretofore exercising the jurisdiction of a High Court in the capital of Federation but, no such provision was made through G.G.O. 15 of 1948 and it was merely provided that the Chief Court of Sindh shall continue to be the High Court for Karachi and shall retain such jurisdiction as it has immediately before the date appointed under Article 3. Admittedly the Chief Court of Sindh was exercising original civil jurisdiction under Section 8 of the Sindh Courts Act, 1926 (Provincial Law) before the establishment of Federal Capital at Karachi. It was provided in sub-section (3) of Section 290-A that any provision with respect to the jurisdiction of a High Court contained in an order made under Section 290-A shall be subject to the provision of Chapter-11 of Part-IX of the Government of India Act, 1935, except to the provisions of sub-section (1) of Section 230 and of sub-section (2) of Section 231 thereof shall not apply. Under Section 290-A, of the Government of India Act, 1935, the Chief Court of Sindh was deemed to be High Court which was subsequently merged in the High Court of West Pakistan by the establishment of West Pakistan Act, 1955 and on establishment of the High Court of West Pakistan by G.G.O. No. 19 of 1955. It was provided in Section 223 of the Government of India Act, 1935, that subject to the provisions of Part-IX of the Government of India Act, 1935, any order in council made under this Act or any other Act, the provisions of any order made under the Indian Independence Act; 1947 and to the provisions of any Act of competent legislature or any order made thereunder, the jurisdiction of, and the law administered in, any existing Higli Court and the respective powers of the Judges thereof in relation to the administration of justice in the Court including any powers to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in division Courts shall be same as immediately before the establishment of the Federation. Thus, under this provision also the High Courts were to exercise the jurisdiction which they were exercising before the establishment of the federation until and unless any provision was made under the Government of India Act, 1935.
No new provisions were made by the Federal Legislature in respect of the High Courts until the promulgation of West Pakistan (Establishment Order 1955) by G.G.O. Order No. 4 of 1955, dated 27-3-1955. By this Order the Province of West Pakistan was established. In Article 5 of this order it was provided that it shall not effect the composition of the jurisdiction of any High Court. Thereafter the Establishment of West Pakistan Act, 1955 was passed on 3rd October, 1955 by the Constituent Assembly of Pakistan. It was provided in Section 2(2) that the capital of federation shall be administered in accordance with the provisions of Section 290-A of the Government of India Act, 1935. It was provided in Section 7 of this Act that notwithstanding anything to the contrary contained in any law, including the Government of India Act, 1935, the Governor-General may by order establish a High Court for the Province of West Pakistan to replace the High Court in Lahore, the Chief Court of Sindh and the Judicial Commissioners' Courts in North-West Frontier Province, and Balochistan. Under Section 10 of this Act, the Government of India Act, 1935 was amended and Section 290-A was omitted. Karachi was declared to be Chief Commissioner's Province. Section 290-A Government of India Act, 1935, as inserted by G.G.O. No. 14 of 1948 was omitted by the Establishment of West Pakistan Act, 1955 with effect from 3rd October, 1955. The Government of India (Second Amendment) Act, 1955 was passed on 8th October, 1955 and received the assent of Governor-General on 13th October, 1955. Under Section 9 of this Act, Section 290-A was again inserted in Government of India Act, 1935 with certain amendments, which reads as follows:--
"290-A. (1) Except in respect of matters relating to High Court, the Provincial legislature shall have no power to make laws in respect of the Capital of the Federation.
(2) The Governor-General may by order make, in respect of the Capital of the Federation, such provisions--
(a) for its Government and administration;
(b) for varying the composition of the Legislature of the Province affected thereby and the representation in the Federal Legislature of that Province;
(c) with respect to the laws which are to be in force in the area;
(d) with respect to the expenses or revenues of any Court theretofore exercising the jurisdiction of a High Court in the area;
(e) with respect to apportionments and adjustments of, and in respect of assets and liabilities; and
(f) with respect to other supplemental, incidental and consequential matters;
as he may deem necessary or proper.
(3) The Governor-General may by order alter, amend or modify any order made under this section.
(4) The executive authority of the Federation extends to the capital of the Federation and any order made under this sub-section may be controlled or superseded by an Act of the Federal Legislature, which shall have also power to make laws for the Capital of the Federation with respect to matters enumerated in the Provincial Legislative List, other than matters relating to High Court.
(5) An order made under this section may authorize expenditure from the revenues of the Federation."
A comparison of the original Section 290-A inserted in the Government of India Act, 1935, which was omitted by the Establishment of West Pakistan Act, 1955 and the amended Section 290-A reinserted in the Government of India Act, by the Government of India (Second, Amendment) Act, 1955, with effect from 14th October, 1955 shows that the original sub-section merely empowered the Governor-General to demarcate an area forming part of the province for the purpose of capital of the federation and in pursuance thereof the Governor-General issued G.G.O. No. 15 of 1948 demarcating the areas forming federal capital. In the amended sub-section (1) of Section 290-A, it was provided that the Provincial Legislature has no power to make laws in respect of the capital of the federation except in respect of the matters relating to High Court. It means that the federation instead of acquiring jurisdiction for legislation in respect of the matters relating to High Court conferred this jurisdiction on the Provincial Legislature. I further find that under the original Section 290-A(2)(d) the Governor-General was empowered to make order in respect of the areas demarcated for the purpose of capital of federation in respect of the jurisdiction, expenses or revenues of any Court theretofore exercising jurisdiction of a High Court in the area. However, under the amended Section 290-A(2)(d), the powers of the Governor-General were restricted to making order with respect to the expenses or revenues of any Court theretofore exercising jurisdiction of a High Court in the area. The omission of the word `jurisdiction' from the amended Section 290-A(2)(d) is very significant. As already observed earlier, the Governor-General in spite of holding powers to make orders in respect of the jurisdiction of the High Court at Karachi had not passed any order pertaining to the jurisdiction of the High Court except promulgation of Karachi Courts Ordinance 1955 (Ordinance XXIX of 1955), dated 13-8-1955, which was never brought into force. The Pakistan (Establishment of the Federal Capital) Order, 1948, (G.G.O. No. 15 of 1948) had merely provided in Section 9 that subject to the provisions of Article 3 of Section 290-A of the Government of India Act, the Chief Court of Sindh shall continue to be the High Court of Karachi and shall retain such jurisdiction as it has immediately before the day appointed under Article 3. However, under the amended Section 290-A, inserted with effect from 14th October, 1955, the Governor-General was not conferred any power pertaining to the jurisdiction of High Court in the area and his powers were restricted in respect of the expenses and revenues of any such Court only. It is further very significant to note that in original Section 290-A, it was provided that any provision with respect to the jurisdiction of High Court contained in any order made under this section shall be subject to the provisions of Chapter-II of Part-IX of the Government of India Act, except the provisions of sub-section (1) of Section 230 and of sub-section (2) of Section 231 thereof shall not apply. This provision was altogether omitted in the amended Section 290-A of the Government of India Act. Meaning thereby that the Governor-General was no more empowered to make any provision with respect to the jurisdiction of a High Court. The position is further clarified from the new provision inserted through sub-section (4) of Section 290-A, to the effect that the executive authority of the federation extends to the capital of the Federation and any order made under this sub-section may be controlled or superseded by an Act of the Federal Legislature, which shall have also power to make laws for the Capital of the Federation with respect to the matters enumerated in the Provincial Legislative List, other than matters relating to High Court. (underlining is mine). It has left no ambiguity to the effect that the executive authority of the Federation as well as the Federal Legislature was restricted to the matters pertaining to Government and administration, in respect of laws which are enforced in the area and other allied matters except the matters relating to the High Court which remained within the competence of the Provincial Legislature. It is pertinent to note here that under Section 2(2) of the Establishment of West Pakistan Act, 1955, it was provided that, notwithstanding anything contained in the preceding sub-sections the Capital of the Federation shall be administered in accordance with the provisions of Section 290-A of the Government of India Act, 1935. When this provision is read with the amended Section 290-A discussed above, I find that the matters relating to High Court i.e. the Chief Court of Sindh were not within the competence of the federation or the Federal Legislature and always remained within the competence of the Provincial Legislature, except for the period between 22nd of July, 1948 and 3rd of October, 1955, when the original Section 290-A, of the Government of India Act, 1935 was in force. During this period Governor-General was competent to make order in respect of jurisdiction of High Court and not the Federal Legislature.
On 9th October, 1955, the High Court of West Pakistan (Establishment) Order, (G.G.O. XIX of 1955) was promulgated in pursuance of Section 7 of the Establishment of West Pakistan Act, 1955. It was provided in Article 5 of this Order that, notwithstanding anything in this Order or in any other law for the time being in force, the Bench of the High Court at Karachi shall have the same original civil jurisdiction for the Civil District of Karachi and the same criminal jurisdiction and powers of the Court of Session for the Sessions Division of Karachi, as were exercisable immediately before the commencement of this Order, by the Chief Court of Sindh under Section 8 of the Sindh Court Act, 1926. A proviso was added to the effect that the Governor-General may by notification in the Official Gazette direct that, as from a specified date such jurisdiction and powers as are mentioned therein shall cease to be exercisable by that Bench and as from that date that Bench shall cease to exercise that jurisdiction and powers.
As already observed earlier, on 13th August, 1955, the Governor-General promulgated Karachi Courts Ordinance (Ordinance XXIX) of 1955. It was provided in Section 2 of this Ordinance that, on and from the appointed day, the Sindh Courts Act, 1926 shall in its application to the Capital of Federation, be subject to the amendments set out in the Schedule to the said Ordinance. It was provided in Section 3 that on and from the appointed day, there shall be deemed to have been established in the Capital of Federation following classes of Civil Courts namely:
Court of District Judge; and
Courts of Subordinate Judges.
It was provided in Section 5 that the Court of the District Judge shall be deemed to be the District Court or principal Civil Court of original jurisdiction. It was provided in sub-section (2) of Section 5 that except as otherwise provided by any enactment for the time being in force, the Court of District Judge shall have jurisdiction in original civil suits without limit as regards the value. It was further provided in Section 8 that the ordinary jurisdiction of a Subordinate Judge of a first class shall extend to all original suits and proceedings of civil nature, without limit as regards the value.
An amendment was made in Sindh Courts Act, 1926 whereby in Section 8 words "and the principal Civil Court of original jurisdiction for the Civil District of Karachi and shall be the Court of Session and shall exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi" were omitted. It was further provided that the Chief Court may transfer any proceeding pending immediately before the appointed day in the Chief Court functioning as the Court of Session and exercising powers and performing the duties of a Sessions Judge in the Sessions Division of Karachi shall be deemed to be transferred to the Court of Sessions Karachi and such Court shall proceed to try and determine or otherwise deal with such proceedings as if it had been instituted in such Court.
The above provisions show that by Karachi Courts Ordinance, 1955, the Governor-General created the Court of District Judge and conferred powers on the District Judge and subordinate Judges but did not confer any power or jurisdiction on the Chief Court of Sindh which was exercising its original jurisdiction under the Provincial Legislation namely Sindh Court Act, 1926. Through this Ordinance, the original jurisdiction of the Chief Court was abolished by an amendment in Section 8 of the Sindh Court Act, 1926, as narrated above. At the relevant time capital of the federation was being governed under Section 290-A of the Government of India Act, 1935 as inserted by the Provisional Constitution (Fourth Amendment) Order 1948, and under sub-section (2) of Section 290-A, the Governor-General was empowered to make provision with respect to the jurisdiction of the High Court.
It appears that this Ordinance never came into force for the reason that the Provincial Government did not issue notification in the Official Gazette bringing it into force as required under Section 1(3) of this Ordinance. This Ordinance was published in the gazette on 18th August, 1955 and thereafter the Constituent Assembly passed the Establishment of West Pakistan Act, 1955 on 3rd October, 1955 whereby Section 290-A of the Government of India Act was omitted and was again inserted with effect from 14th October, 1955 with the amendments as already discussed. In the amended Section 290-A of the Government of India Act, 1935 the Federation was not empowered to make any legislation pertaining to the jurisdiction of the High Court. Thereafter on 29th February, 1956, the Constituent Assembly framed the Constitution of Islamic Republic of Pakistan, which came into force from 23rd of March, 1956 and the Government of India Act, 1935 and the Indian Independence Act, 1947 were repealed. In the Constitution, Article 211 dealt with the matters pertaining to the federal capital which has been referred to in the Judgment of Hon'ble Chief Justice. It was provided in Article 211(2) that the administration of the federal capital shall vest in the President, who may, by order make such provisions as he may deem necessary or proper with respect to the laws which are to be enforced therein, and with respect to the jurisdiction, expenses or revenues of any Court exercising the jurisdiction of High Court therein. These provisions are pari materia to the provisions contained in Section 290-A of the Government of India Act, 1935 as inserted by G.G.O.No. 14 of 1948 with the difference that under sub-section (3) of Section 290-A, as it existed up to the 3rd of October, 1955 any provision with respect to the jurisdiction of High Court contained in an order made thereunder, was subject to the provisions of Chapter-II of Part-IX of the Government of India Act, 1935 which included Article 223. It was provided in Article 223 that subject to the provisions of Part-IX of the Act, the provisions of any order in council made under the said Act or any other Act, the provisions of any order made under the Indian Independence Act, 1947 and to the provisions of any Act of competent legislature or any order made thereunder, the jurisdiction of, and the law administered in, any existing High Court and the respective powers of the Judges thereof in relation to the administration of justice in the Courts, shall be same as immediately before the establishment of Federation and under sub-section (3) of Article 211 of 1956 Constitution, it was provided that notwithstanding anything in the Constitution, Parliament shall have powers to make laws for the Federal Capital with respect to matters enumerated in the Provincial Legislative List, and matters not enumerated in any list in the V Schedule other than matters relating to High Court. (The underlining is mine). Thus, there is one pertinent feature, which is common in Section 290-A as inserted in the Government of India Act, by G.G.O. No. 14 of 1948. Section 290-A as inserted by Government of India (Second Amendment) Act of 1955 and Article 211 of 1956 Constitution of the Islamic Republic of Pakistan. Under Section 290-A as inserted by G.G.O.No. 14 of 1948, the Governor-General was empowered to make order in respect of the area demarcated for the purpose of the capital of the federation which inter alia included the matters in respect of the jurisdiction of a High Court in the area. It is silent on the point of competence of Federal Legislature in respect of jurisdiction of High Court. Thus, the Federal Legislature was not conferred powers to legislate in respect of the jurisdiction of a High Court working in the capital of the federation. This exclusion of power was by implication. However, under Section 290-A as re-inserted by Government of India (Second Amendment) Act, 1955, the powers of Governor-General were curtailed to the extent of matters with reference to the expenses or revenues of any Court exercising the jurisdiction of High Court in the area and it was specifically provided in sub-section (4) of the said section that the Federal Legislature shall have powers to make laws for the capital of a federation with respect to the matters enumerated in the Provincial Legislative List other than the matters relating to High Court. It means the legislation in respect of matters relating to High Court were specifically vested in the Provincial Legislature and the Federal Legislature was specifically debarred from making any legislation pertaining to the High Court. Likewise, it was specifically provided in sub-Article (3) of Article 211 of 1956 Constitution, that notwithstanding anything contained in the Constitution, Parliament shall have powers to make laws for the Federal Capital with respect to the matter enumerated in the Provincial List and matters not enumerated in any list in the Vth Schedule other than the matters relating to the High Court. The provisions contained in sub-section (4) of Section 290-A of the Government of India Act, 1935, as inserted by Government of India (Second Amendment) Act, 1955 and in sub-Article (3) of Article 211 of the 1956 Constitution, are pari materia so far the powers of Federal Legislature/Parliament pertaining to the making of laws relating to High Courts are concerned. As already observed earlier the Governor-General was empowered under Section 290-A of the Government of India Act, 1935 as inserted by G.G.O. No. 14 of 1948 to make laws with respect to jurisdiction of the High Court working in the capital federation but no orders were passed conferring any jurisdiction on Chief Court of Sindh in respect of original civil jurisdiction being exercised in respect of Karachi which was declared as Federal Capital and consequently by virtue of the provisions contained in Section 223 of the Government of India Act, 1935, the Chief Court of Sindh continue to exercise the original civil jurisdiction conferred on it under the Sindh Courts Act, 1926 which is a Provincial Law, except issuance of Karachi Courts Ordinance, fully discussed earlier abolishing the original civil jurisdiction of the Chief Court of Sindh by amending Section 8 of the Sindh Courts Act, 1926 but the said Ordinance never became operative. Under Article 211 of the 1956 Constitution, the Parliament (Federal Legislature) had no power to make legislation pertaining to the matters relating to the High Court exercising jurisdiction in the Federal Capital. Under sub-Article (2) of Article 211, the President was empowered to make the provisions with respect to the laws to be enforced in the Federal Capital and with respect to the jurisdiction of the High Court working therein. In exercise of the powers conferred under Clause (2) of Article 211 of the 1956 Constitution, the President promulgated the President's Order II of 1956 to be called as Karachi Courts Order 1956, thereby making certain amendments in Sindh Courts Act, 1926, under which the Chief Court of Sindh and subsequently, the West Pakistan High Court Karachi Bench was exercising original civil jurisdiction as principal Court of original civil jurisdiction. As already referred to above, it was provided in Section 8 of the Sindh Courts Act, 1926, that Chief Court of Sindh shall be the principal Civil Court of original jurisdiction for the Civil District of Karachi and shall be the Court of Session and shall exercise the powers and perform duties of Sessions Judge in the Sessions Division of Karachi. After establishment of Karachi as Federal Capital by the Pakistan (Establishment of the Federal Capital) Order, 1948 this jurisdiction was retained by Article 9 of G.G.O. No. 15 of 1948, whereby it was held that the Chief Court of Sindh shall continue to be High Court of Karachi and shall retain such jurisdiction as immediately before the day appointed under Article 3 of the said Order and again on establishment of Pakistan by integrating all the Provinces in the West Pakistan and establishment of High Court of West Pakistan under the G.G.O. No. XIX of 1955 the original civil and criminal jurisdiction of the High Court of West Pakistan at Karachi was retained empowering to exercise same original civil jurisdiction of High Court Karachi Bench and same criminal jurisdiction for the Sessions Division Karachi, as were exercisable immediately before the commencement of the G.G.O. No. XIX of 1955 with effect from 14th October, 1955, by Chief Court of Sindh under Section 8 of the Sindh Courts Act, 1926. Under the, President Order II of 1956 (Karachi Courts Order 1956), the words, "and shall be the Court of Session and shall exercise the powers and perform duties of a Sessions Judge in the Sessions Division of Karachi" were substituted with the words, "in respect of suits and proceedings wherein the subject-matter in amount and value exceeds 25,000 rupees or such sums as the Central Government may, by order under the provisions of sub-section (2) of Section 22 prescribe." With this amendment Section 8 of the Sindh Courts Act, 1926 read as follows:
"8. Civil and Criminal Jurisdiction of Chief Court.
The Chief Court shall be the highest Civil Court of appeal and revision and the highest Court of criminal appeal and revision for Sindh and the principal Civil Court of original jurisdiction for the Civil District of Karachi in respect of suits and proceedings wherein the subject-matter in amount or value exceeds 25,000 rupees or such sums as the Central Government may, by order under the proviso to sub-section (1) of Section 22 prescribe."
A proviso was added to sub-section (2) of Section 22 of the Sindh Courts Act, 1926, which reads as follows:
"Provided that, unless Central Government by order otherwise directs the District Court of Karachi shall not have jurisdiction in original civil suits and the proceedings wherein a subject-matter exceeds 25,000 rupees in amount or value."
Under Article 3 of the Karachi Courts Order 1956, the Court of the District Judge and the Courts of subordinate Judges were established in the Federal Capital. It was provided in Article 4(2) as under:
"Unless the Central Government by order under the proviso to sub-section (2) of Section 22 of the Sindh Courts Act, 1926 (BOM. Act VII of 1926) otherwise direct the Court of the District Judge shall not have jurisdiction in original civil suits and proceedings wherein the subject-matter exceeds 25,000 rupees in amount or value."
It will be seen that the above order was passed by the President of Pakistan in exercise of the powers conferred by Clause (2) of Article 211 of the Constitution and not by the Parliament (Federal Legislature) for the obvious reason that under Article 211 Clause (2) the President was empowered to pass such order which affected the jurisdiction of High Court, while no law was promulgated by the Parliament (Federal Legislature) as under Clause (3) of Article 211 the Parliament was not empowered to make any laws in the matters relating to the High Court. Secondly, under Karachi Courts Order 1956, no jurisdiction was conferred on the High Court of West Pakistan Karachi Bench rather the jurisdiction was curtailed. Prior to the promulgation of Karachi Courts Order 1956, the Chief Court of Sindh and subsequently after the establishment of West Pakistan High Court, the Karachi Bench of the West Pakistan High Court was exercising the powers of appellate and revisional as well as original jurisdiction in civil matters pertaining to the civil District of Karachi which was subsequently declared as the Federal Capital. With the promulgation of Karachi Courts Order 1956 by the President's Order II of 1956, the original civil jurisdiction of the High Court was restricted to the subject-matters exceeding 25,000 rupees in amount or value and the ordinary jurisdiction of subordinate Court of first class Civil Judge was created in respect of original suits and proceedings of civil nature wherein the subject-matter in amount or value does not exceed 25,000 rupees or such sums as the Central Government may by order under the proviso to sub-section (2) of Section 22 of the Sindh Civil Court Act, 1922 prescribe. Under Section 28 of the Karachi Courts Order, 1956, all suits, executions and other proceedings wherein the subject-matter in amount or value does not exceed 25,000 rupees or such sums as the Central Government may by order under the proviso to sub-section (2) of Section 22 of the Sindh Courts Act, 1926 prescribe, other than appeals, revisions and reviews pending before the Bench of High Court of West Pakistan at Karachi in which no evidence was recorded stood transferred to the Court of District Judge who was required to dispose of such suits, executions and other proceedings in the manner as if they have been instituted in his Court. This legal dispensation continued till the promulgation of President Order No. IX of 1961 called as West Pakistan Administration (Merger of the Federal Territory of Karachi) Order 1961. The federal territory of Karachi became part of West Pakistan and ceased to be administered as federal territory and was to be known as the Karachi Division of West Pakistan. It was provided that the specified territory referred in any Act or Ordinance or any rule, regulation, or bye-law or notification was to be construed as referred to the provisions of West Pakistan or as the context may indicate, to the Karachi Division. However, all the laws were to continue in force with necessary adaptation until altered, repealed or amended by the competent authority. The Governor-General of West Pakistan was empowered to carry out the purposes of this Order, issue orders supplemental and incidental to or consequential upon the enforcement of this order.
After the merger of Karachi with the West Pakistan and ceasing of the same as federal territory, the Governor of West Pakistan promulgated the Civil Court Ordinance 1962 (II of 1962). Under Section 28 of this Ordinance, the Sindh Courts Act, 1926 as applicable to the District of Karachi was repealed except Section 8 under which the original civil jurisdiction was exercised earlier by the Chief Court of Sindh and subsequently by the erstwhile West Pakistan High Court Karachi Bench. It was provided in Section 7 of the Civil Court Ordinance, 1962 that in the Karachi District, the original jurisdiction in civil suits and proceedings of value exceeding 25,000 of rupees shall be exercised by the High Court. With the promulgation of Civil Courts Ordinance, 1962 there were two laws in. the field, one the amended Section 8 of the Sindh Courts Act, 1926 which provided that the Chief Court shall be the principal Civil Court of original jurisdiction for the Civil District of Karachi in respect of the suits and proceedings wherein the subject-matter in amount or value exceeds 25,000 rupees or such sum as the Central Government may, by order under the proviso to sub-section (2) of Section 22 prescribe. By virtue of this provision the Karachi Bench of West Pakistan High Court was Principal Civil Court of original jurisdiction for the District of Karachi in respect of the suits and proceedings in amount or value exceeding 25,000 rupees or such sums as the Central Government may by order under the proviso to sub-section (2) of Section 22 prescribe. At the same time the District Judge Karachi became the principal Civil Court of original jurisdiction in respect of the cases and suits not exceeding the amount or value of rupees 25,000. By the Civil Courts Ordinance, 1962 the Karachi Courts Order 1956 was also repealed except clause 4(2) which provided that unless the Central Government by order under the proviso to sub-section (2) of Section 22 of the Sindh Courts Act, 1926 otherwise directs the Courts of the District Judge shall not have jurisdiction in original civil suits and proceedings wherein the subject-matter exceeds 25,000 rupees in amount or value. The result was that the District Judge was the principal Court of original civil jurisdiction in the matters up to 25,000 rupees by virtue of the provisions contained under Article 4(2) of the Karachi Courts Order, 1956 read with amended Section 8 of the Sindh Courts Act, 1926 and Section 7 of the West Pakistan Civil Courts Ordinance 1962, and by virtue of the same provisions, the Karachi Bench of the West Pakistan High Court was principal Court of civil jurisdiction at Karachi in respect of the matters exceeding 25,000 rupees.
Although the Karachi Courts Order 1956 was repealed by the West Pakistan Civil Courts Ordinance, 1962 except Clause 4(2) but by President's Order 1 of 1964 in pursuance of Clause (1) of Article 225 of the 1962 Constitution, read with Clause (4) of the said Article, the Karachi Courts Order 1956 was also amended/modified to the effect that throughout the order except in Clause (3) of Article l(a) for "Federal Capital", Karachi Division, was substituted and for "Central Government", "Provincial Government", was substituted. The effect of this amendment was that Clause 4(2) of the Karachi Courts Order 1956 was to read as follows:
"Unless the Provincial Government by order under the proviso to sub-section (2) of Section 22 of the Sindh Courts Act, 1926, otherwise directs the Court of the District Judge shall not have jurisdiction in original suits and proceedings wherein the subject-matter exceeds twenty-five thousand rupees in amount or value."
As already narrated above Section 8 of the Sindh Courts Act, 1926 was the only provision left intact after repeal of the entire Act by the West Pakistan Civil Courts Ordinance, 1962, and it contained similar provision. It appears that while repealing the Sindh Courts Act, 1926 as applicable to District of Karachi and the Karachi Courts Order 1956 and leaving amended Section 8 of the former Act and Clause 4(2) of the later order it was not noticed by the draftsman that the Central Government/Provincial Government, could not prescribe any higher amount enhancing pecuniary jurisdiction of the District Judge Karachi under proviso to sub-section (2) of Section 22 because while repealing entire Sindh Courts Act, 1926, the proviso to sub-section (2) of Section 22 of the Sindh Courts Act, 1926 which was added by Clause (2) of the Karachi Courts Order 1956 also stood repealed. Without properly. attending to this anomaly Civil Courts (Sindh Amendment) Ordinance 1970 (XIII of 1970) was promulgated with the purpose of amending the 'Karachi Courts Order 1956 and the West Pakistan Civil Courts Ordinance, 1962. It was done in pursuance of Martial Law Proclamation of 25th March, 1969, read with the Provisional Constitution Order, and in exercise of all powers enabling the Governor of Sindh in that behalf. Article 4 Clause (2) of the Karachi Courts Order 1956 was substituted as follows:
"2. The Court of the District Judge Karachi shall not have jurisdiction on the original civil suits and proceedings wherein the subject matter exceeds fifty thousand rupees."
In the West Pakistan Civil Court Ordinance, 1962, in Section 24 in the proviso to sub-section (1) and in sub-section (2A) for the words, "twenty-five thousand" the words "fifty thousand" were substituted. With this amendment the pecuniary jurisdiction of the District Judge, Additional District Judge and Civil Judge of the First Class at Karachi was enhanced to Rs. 50,000 without curtailing the jurisdiction of the West Pakistan High Court Karachi Bench. The result was that the West Pakistan High Court Karachi Bench and the District Judge and Civil Judge First Class at Karachi started enjoying concurrent jurisdiction in respect of the matters exceeding rupees twenty-five thousand and not exceeding fifty thousand rupees.
Ordinance VI of 1981 namely Sindh Courts (Amendment) Ordinance 1981 was promulgated for the purpose of further amending Sindh Civil Courts Ordinance 1962 and repeal of the Sindh Courts Act, 1926 and the Karachi Courts Order 1956. It appears that at this point of time the anomaly was noticed and therefore, the whole of Sindh Courts Act 1926 as applicable to Karachi and the Karachi Courts Order 1956 were repealed. Section 7 of the West Pakistan (re-named, as Sindh) Civil Court Ordinance 1962, was substituted. Substituted Section 7 read as follows:
"subject to any law for the time being in force, the original jurisdiction of the District Judge in civil suits and proceedings shall be without limit of the value thereof except in Karachi District wherein the original jurisdiction in civil suits or proceedings of the value exceeding one lac of rupees shall be exercised by the High Court."
In Section 24 of the said Ordinance words, "fifty thousand rupees" were substituted by "one lac of rupees". After this amending Ordinance the anomaly was removed and thereafter the original civil jurisdiction at Karachi was governed by the Sindh Civil Courts Ordinance, 1962 whereby the District Judge became the principal Court of original jurisdiction in the matters not exceeding Rs. 1,00,000 and the High Court became the principal Court of original jurisdiction at Karachi in respect of the suits and proceedings of the value exceeding one lac rupees. By Sindh Civil Courts (Amendment) Ordinance, 1991, the pecuniary jurisdiction of the District Judge was enhanced to Rs. 5,00,000. It was provided that the civil suits and proceedings of the value not exceeding 5,00,000 rupees in respect of Karachi District pending in High Court shall be disposed of by the High Court. Subsequently, Sindh Civil Courts (Amendment) Act 1991 was enacted by the Provincial Legislature as Act III of 1992.
Lastly through Sindh Civil Courts (Amendment) Ordinance, 2002, the pecuniary jurisdiction of the District Judge Karachi was enhanced, to Rs. 30,00,000 and the jurisdiction of the High Court was restricted to the civil suits and proceedings exceeding 30,00,000 rupees. It was further provided that all suits, appeals and proceedings not exceeding the original or appellate pecuniary jurisdiction of District Judge at and outside Karachi respectfully pending in the High Court immediately before the commencement of the Ordinance shall stand transferred to the concerned District Judge for disposal.
From a survey of the statutes dealing with the original civil jurisdiction of the Chief Court of Sindh/West Pakistan High Court Karachi Bench/Sindh High Court, there is no scintilla of doubt in any mind that at no point of time any original civil jurisdiction was conferred on the Court of record functioning at Karachi by the Federal Legislature. In fact the Federal Legislature has not enacted any law pertaining to the jurisdiction of the High Court functioning at Karachi. The Sindh Courts Act 1926 was admittedly a Provincial Legislation. Thereafter certain orders were passed by the Governor-General and President of Pakistan including Karachi Courts Order 1956 and after integration of Federal Capital of Pakistan comprising Karachi in the West Pakistan as Karachi Division and on dismemberment of the West Pakistan as Karachi Division of the Province of Sindh. All the laws which have conferred the jurisdiction on the Chief Court/High Court, or have curtailed the jurisdiction were passed by the Provincial Legislature. At this juncture, I would like to point out that under Article 211 of the 1956 Constitution, the Constituent Assembly had clearly made a distinction in the powers vested in the President under Clause (2) of Article 211 and the powers vested in the Parliament (Federal Legislature) under Clause (3) of the said Article and has specifically provided that the President was empowered to make laws pertaining to the jurisdiction of High Court functioning in the federal capital and that the Parliament had no power to make laws in the matters relating to the High Court. Thus, no question of repugnancy arises between any provision of an Act of Provincial Assembly and the Act of Majlis-e-Shoora (Parliament) as envisaged under Article 143 of the Constitution of Islamic Republic of Pakistan, 1973. Since there is no inconsistency, conflict or repugnancy therefore, the objection to the validity of various Provincial Laws enhancing pecuniary jurisdiction of the District Judge at Karachi is without substance and consequently, I fully agree with the view expressed by the Hon'ble Chief Justice to the effect that there is no law made by the Parliament in exercise of the powers under the Concurrent Legislative List pertaining to the original civil jurisdiction of the Chief Court of Sindh, erstwhile West Pakistan High Court Karachi Bench and Sindh High Court and consequently, there is no conflict as envisaged under Article 143 of the Constitution of Islamic Republic of Pakistan and thus, in accordance with Section 7 of the Sindh Civil Court Ordinance jurisdiction of High Court to try civil suits is confined to matters where the pecuniary jurisdiction exceeds to Rs. 30,00,000 and all other suits are liable to be transferred and disposed of by the District Court. I would like to add only this much that from the year 1981, there is one provincial law only in the field governing the original civil jurisdiction of Sindh High Court and District and Subordinate Court at Karachi. It is Sindh Civil Court Ordinance, 1962. There is no Federal Law at all in the field and never occupied the field, therefore the question of repugnancy, inconsistency or conflict in Federal and Provincial Law does not arise.
(Fouzia Fazal) Reference answered.
PLJ 2006 Karachi 178 (DB)
Present: Muhammad Mujeebullah Siddiqui and Syed Zawwar Hussain Jafri, JJ.
Messrs FACTO BELARUS TRACTORS LIMITED KARACHI and another--Petitioners
versus
FEDERATION OF PAKISTAN through SECRETARY, MINISTRY OF INDUSTRIES, PRODUCTION & SPECIAL INITIATIVES ISLAMABAD and others--Respondents
Constitutional Petitions Nos. D-304 of 2006, D-1347 of 2005, decided on 4.5.2006.
Constitution of Pakistan (1973)--
----Art. 199--Constitutional petition--Relief cannot be granted--Relief can be denied in the cases in which High Court is exercising original jurisdiction in suit or appellate or revisional jurisdiction--Dominant jurisdiction--Even in exercise of such jurisdiction the dominant prevailing view is that the Court can mould the relief and allow the same though it is not prayed for, as the Courts are not merely slaves of technicalities but are the Courts of justice and, therefore, relief can be moulded in a way which serves the purpose of justice. [P. 193] B
Constitution of Pakistan (1973)--
----Art. 199--Constitutional jurisdiction--Judicial review--Import, object and scope--High Court, in exercise of such jurisdiction is required to see whether public functionaries have acted in accordance with law--Such jurisdiction of High Courts and particularly the superior Courts is in accordance with the concept of checks and balances which is integral part of concept of separation of powers enshrined in the Constitution--Court, in exercise of jurisdiction of judicial review of public action, is required to see whether functionaries of the state in connection with the affairs of federation, province or local authorities have done things in accordance with the law or actions have been taken otherwise than in due course of law--In the realm of public actions every thing should be taken objectively and on basis of criteria already determined and fixed--No room available for subjectivity or actions which smack of arbitrariness, favouritism or discrimination--If yardsticks are not determined prior to the taking of decisions then decisions are bound to be subjective and non-transparent, which are not the hallmark of good governance--In democratic set up the complete transparency and accessibility to the policy decisions in pursuance of right of information are strictly observed. [Pp. 187, 193, 194] A & C
Constitution of Pakistan, (1973)--
----Art. 199--Jurisdiction of High Court--Maintainability--Principles--Objection raised by the authorities was that as some of the respondents were based at Islamabad, therefore, Sindh High Court did not have jurisdiction to adjudicate the matter--Validity--All the High Courts in Pakistan were exercising jurisdiction under Art. 199 of the Constitution in respect of orders made by the Federation and authorities functioning with the affairs of Federation--Sindh, Balochistan and Peshawar High Courts therefore, had the jurisdiction. [P. 194] D
Constitution of Pakistan (1973)--
----Art. 199--Administrative decision--Judicial review--One time import at zero tariff--Petitioner was refused but respondents were granted permission by authorities to one time import of tractors at zero tariff--Plea regarding the order of authorities was not transparent and was subjective, arbitrary and in excess of jurisdiction as well as based upon favouritism--Validity--Proceedings initiated with advertisements inviting proposals for import of agriculture tractors were not in accordance with the decision of Economic Coordination Committee--Entire proceedings suffered from lack of transparency and smacked of subjective decision, arbitrariness and excess of jurisdiction as well as favouritism--High Court directed the members of Committee set up by Economic Coordination Committee to devise a detailed scheme containing modalities for proper implementation of the decision taken by Economic Coordination Committee, prescribing criteria as well as measures which were to be adopted for achieving purpose of supply of tractors to farmers at reasonable rates and to evolve the safety-valves to prevent misuse of the scheme--Sindh High Court further directed the authorities that after devising detailed scheme giving parameters, conditions, requirements, time frame and other necessary guidelines, they should re-advertise the scheme and invite proposals and thereafter recommend allocation of import of tractors to companies/investors who were found eligible and most suited--High Court in exercise of constitutional jurisdiction quashed all the proceedings. [P. 195] E & F
Mr. Munir A. Malik, Advocate for Petitioner (in C.P. No. D-304 of 2006).
Mr. Khalid Jawaid Khan, Advocate for Petitioner (in C.P. No. D-1347 of 2005).
Mr. Aamir Raza Naqvi, Advocate for Respondent No. 8 (in C.P. No. D-304 of 2006).
Shaikh Jawaid Mir, Advocate for Respondent No. 8 (in C.P. No. D-1347 of 2005).
Mr. S. Tariq Ali, Federal Counsel for Respondents Nos. 1, 2, 3 and 9 (in C.P. No. D-304 of 2006).
Mr. Salman Talibuddin, Advocate for Respondent No. 4.
Raja Qasit Nawaz, Advocate for Respondent No. 5.
Mr. Mehmood A. Shaikh, Advocate for Respondent No. 6.
Mr. Nasir Ali Jafri, Advocate for Respondent No. 7.
Date of hearing: 2.5.2006.
Judgment
Muhammad Mujeebullah Siddiqui, J.--Both these petitions arise out of the same set of facts and the parties are also almost same, therefore, with the consent of learned Advocates for the parties, both the petitions have been heard together and are disposed of by this single judgment.
C.P. No. D-304 of 2006 is treated as leading petition and for the sake of convenience the marshalling of facts shall be as on the record of this petition.
The relevant facts giving rise to these petitions are that the Economic Coordination Committee of the Cabinet, made the following decision on 1-7-2005:
"Case No. ECC-89/6/2005 Allowed One Time Import of Dated 1-7-2005 10,000 Tractors (CBU) at Zero Tariff.
DECISION
(I) The Economic Coordination Committee (ECC) of the Cabinet considered the summary dated 28th June, 2005 submitted by the Ministry of Food, Agriculture and Livestock on "Allowing One Time Import of 10,000 Tractors (CBU) at Zero Tariff" and decided to set up a Committee under Secretary, Ministry of Industries, Production- and Special Initiatives to work out the modalities and review the plan of import of 10,000 Tractors at zero tariff. The Committee shall comprise senior level representatives from the Ministries of Finance, Food, Agriculture and Livestock and Board of Investment.
(II) Import of tractors shall be allowed only to those companies who have their tractor manufacturing units in Pakistan or are in the process of installing these. Bank guarantees may be obtained in order to ensure use of this facility by genuine manufacturers only.
(Ill) The Committee shall submit its recommendations to the Prime Minister for approval."
The above decision was communicated to various ministries/ divisions by the Joint Secretary (Cabinet Committees) vide covering letter dated 4th July, 2005, with the direction for necessary action to be initiated immediately and for reporting the status of implementation to Cabinet Division within a fortnight.
However, before initiation of any action as directed vide letter dated 4th July, 2005,, the Economic Coordination Committee of the Cabinet modified its decision dated 1-7-2005 on 4-7-2005. Para (ii) of the decision dated 1-7-2005 was substituted as follows:--
"(ii) Import of tractor shall be allowed only to those companies who want to install their Tractor manufacturing facility in Pakistan. Bank guarantees may be obtained in order to ensure use of this facility by the genuine prospective companies/investors. In case, they are unable to fulfil their commitment the proposed committee will review the matter."
Consequent to the above substitution of decision dated 1-7-2005, the Cabinet Secretariat issued a corrigendum on 12th July, 2005. After substitution the ECC decision read as follows:-
"(I) The Economic Coordination Committee (ECC) of the Cabinet considered the summary dated 28th June, 2005 submitted by the Ministry of Food, Agriculture and Livestock on 'Allowing One time Import of 10,000 Tractors (CBU) at Zero Tariff and decided to set up a Committee under Secretary, Ministry of Industries, Production and Special Initiatives to work out the modalities and review the plan of import of 10,000 Tractors at zero tariff. The Committee shall comprise senior level representatives from the Ministries of Finance, Food, Agriculture and Livestock and Board of Investment.
(II) Import of Tractor shall be allowed only to those companies who want to install their Tractor manufacturing facility in Pakistan. Bank guarantees may be obtained in order to ensure use of this facility by the genuine prospective companies/investors. In case, they are unable to fulfil their commitment the proposed committee will review the matter.
(Ill) The committee shall submit its recommendations to the Prime Minister for approval."
Thereafter the Ministry of Industries, Production and Special Initiatives invited proposals for import of Agricultural tractors through publication of notices in the National Dailies which read as follows:-
GOVERNMENT OF PAKISTAN MINISTRY OF INDUSTRIES, PRODUCTION AND SPECIAL INITIATIVES
NOTICE INVITING PROPOSALS FOR IMPORT OF AGRICULTURAL TRACTORS
Ministry of Industries, Production and Special Initiatives, Government of Pakistan hereby invites proposals for import of 10,000 agricultural tractors in CBU condition at zero tariff rate for supply to farmers, from those registered companies which are in the process of Installing the tractor manufacturing/ assembling units in Pakistan. The said companies shall be required to fulfil the following documents:
(a) Number of tractors allocated to companies qualifying as per given below criteria shall be subject to a maximum of 2,500 units.
(b) The tractors shall be imported during the financial year 2005-2006.
(c) Company(ies) submitting their proposals would be required to submit proof for establishing local tractor manufacturing/ assembly plaint, i.e. land acquisition, technical agreement with the foreign firm for joint venture, planned annual production capacity, application for deletion program duly approved by Engineering Development Board and schedule for setting up of after sale service in the country.
(d) Verification of proposals received for import of tractors (CBU) on the basis of the above criteria would be conducted by the Engineering Development Board of Ministry of Industries, Production and Special Initiatives if needed. Engineering Development Board would also conduct on spot verification.
(e) The company(ies) allowed to import tractors would be required to establish irrevocable L.C. within 90 days from date of approval by Ministry of Industries, Production and Special Initiatives.
(f) The company(ies) approved to import tractors as per above conditions would be required to submit a Bank Guarantee.
(2) The interested manufacturing firms may submit their detailed proposals in light of the above conditions so as to reach this office in sealed cover within 10 days of publication of this Notice. Sealed proposals will be opened on 15th August, 2005 at 11-00 a.m. in the Committee Room, 1st Floor, Block-A, Pak Secretariat, Islamabad in the presence of the applicants or their authorized representatives.
(3) Proposals received after due date would not be entertained. Clarification, if any, can be obtained from the undersigned."
By another notice published in the National Dailies dated 13th August, 2005, the date for receipt of the proposals was extended up to 18th August, 2005. In pursuance of above advertisements eleven companies/investors submitted their proposals to the Ministry of Industries, Production and Special Initiatives. The committee constituted by ECC examined the proposals on the basis of eligibility requirements approved by the Prime Minister and short-listed three companies namely Messrs Dewan Automotive Engineering Co., Universal Tractors Ltd., and Agro Tractors (Pvt.) Ltd., Respondents Nos. 4, 5 and 6 in C.P. No. D-304/2006. A summary was submitted to the Prime Minister for approval who approved the award of import of tractors to these three companies. It is alleged by the petitioner Fecto Belarus Tractors Ltd., that five companies were short-listed which included the petitioner, the Fecto Belarus, Respondent No. 7, Dewan Automotive Engineering Ltd., Respondent No. 5, Universal Tractors, Respondent No. 6 Agro Tractors and Respondent No. 7, Hero Motors. It is alleged that this short-listing was done in presence of the representatives of all these five companies. However, it is denied by the Respondent No. 1, the Ministry of Industries, Production and Special Initiatives, alleging that three companies only were short-listed. According to the Respondent No. 1, in the summary submitted to Prime Minister it was provided that the Respondent No. 7 Hero Motors shall submit additional documents and after examination thereof, the case of Messrs Hero Motors will be finalized. This proposal was also approved by the Prime Minister. Subsequently Messrs Hero Motors supplied the additional documents. In the meanwhile the petitioner Fecto Belarus made a representation to the Prime Minister of Pakistan and the representative of petitioner Fecto Belarus Tractors and respondent Hero Motors were heard who explained their respective positions. The committee formed unanimous view that the petitioner Fecto Belarus Tractors did not qualify under the scheme, as the scheme was for new entrants only and the Fecto Belarus Tractors was an existing unit. The proposal of Hero Motors was found in accordance with the scheme and the Committee recommended Hero Motors for the award of quota. The case of petitioner Shehzad Riaz in C.P. No. D-1347 of 2005 was not considered as he had not submitted his case in time. Finally quota of 2500 units was allotted to each of the Respondents Nos. 4, 5 and 6 while Respondent No. 7 was recommended for allocation of similar quota which is still under consideration.
It is contended by the petitioner Fecto Belarus Tractors that only those companies were eligible under the zero tariff rate who had manufacturing and assembling agreements with foreign firms for the local manufacturing and assembling of these tractors. It is alleged that Respondent No. 7, Hero Motors does not fulfil this condition. It is averred that the petitioner was refused the quota for the reasons that it was an existing manufacturing unit but the Respondents 4 and 5 Messrs Dewan Automotive Engineering Limited and Messrs Universal Tractors Pakistan (Pvt.) Limited in spite of being existing units were allotted the quota. Therefore, the implementation of the scheme was not transparent or fair, but was mala fide and arbitrary. It is alleged that for the first time, the petitioner was provided the corrigendum dated 12th July, 2005 on 13rd February, 2006, whereby the existing units were excluded from the eligibility criteria. It is further alleged that the Respondent No. 4, is already in production of tractors and Respondent No. 5 is also in production but has merely changed its name from G.M. Tractors (Pvt.) Ltd. to Messrs Universal Tractors Pakistan (Pvt.) Ltd. The petitioner has produced copy of certificate issued by Farmtrac North America dated 9th August, 2005, according to which the foreign manufacturer had signed agreement on 16th December, 2003 with G.M. Tractors (Pvt.) Ltd. the name of which has been changed to Universal Tractors (Pvt.) Ltd.
It is further contended in the petition that the implementation of scheme is non-transparent, unfair, unjust and arbitrary.
It is also pleaded that the Respondent No. 9, C.B.R. has issued three special exemption orders Bearing Nos. 10, 11 and 20 of 2006, dated 13th February, 2006 and 24th February, 2006 in favour of Respondent No. 4 Messrs Dewan Automotive Engineering (Pvt.) Ltd., Respondent No. 5, Messrs Universal Tractors Ltd., and Respondent No. 6, Messrs Agro Tractors Ltd., granting exemption from whole of the customs duty leviable on the import of 2500 tractors by each of these respondents in CBU and CKD condition. It is contended that initially the Respondents 4 and 5 were allowed import of tractors in CBU condition but vide letter dated 2nd November, 2005 by modifying their earlier letter dated 26th September, 2005 they have granted exemption for import of the tractors in CKD condition also, which is beyond and contrary to the decision taken by ECC. It is alleged that the exemption notification for import of tractors in CKD condition is non-transparent, illegal and mala fide.
The petitioner in C.P. No. D-304 of 2006 has prayed as under:--
(a) Declare that the permission granted to the Respondents Nos. 4 to No. 7 to import 2,500 units of tractors each under the zero tariff . import scheme is illegal, mala fide and of no legal effect.
(b) Declare that the Special Exemption Order No. 10/2006, dated February 13th 2006, Special Exemption Order No. 11/2006, dated February 13, 2006, and Special Exemption Order No. 20 of 2006, dated 27th February, 2006, are without jurisdiction, illegal and of no legal effect.
(c) Restrain the Respondents Nos. 4 to 6 from importing any tractors (i.e. in CBU or CKD condition) under the zero tariff import scheme.
(d) Restrain the Respondent No. 7 from importing any tractors, including Belarus Tractors, (i.e. in CBU or CKD condition) under the zero tariff import scheme.
(e) Grant any other relief deemed appropriate and just in the circumstances of the present case."
Or in the alternative
(a) Declare that the decision of the Economic Co-ordination Committee of the Cabinet (Corrigendum No. F.1/6/2005, Com. dated 12th July, 2005) is discriminatory and violative of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973, and of no legal effect.
(b) Direct the Respondents No. 1 to No. 3 and No. 9 to grant permission to the petitioner to import 2,500 Belarus Tractors under the zero tariff import scheme in terms of the decision of the Co-ordination Committee of the Cabinet (Case No. ECC-89/6/2005, dated 1st July, 2005);
(c) Declare that the permission granted to the Respondent No. 7 to import 2,500 units of tractors under the zero tariff import scheme is illegal, mala fide and of no legal effect;
(d) Restrain the Respondent No. 7 from importing any tractors, including Belarus Tractors, (i.e. in CBU or CKD condition) under the zero tariff import scheme;
(e) Grant any other relief deemed appropriate and just in the circumstances of the present case;"
The petitioner in C.P. No. D-1347 of 2005 has prayed as follows:--
"(a) Declare that grant of permission by Respondent No. 1 to private Respondents Nos. 5 and 7 and others for import of 7500 tractors in violation of the terms and conditions stipulated in public notice/advertisement dated 13-8-2005 is arbitrary, illegal, mala fide and set aside the same.
(b) Declare that the Respondent No. 5 having submitted technical manufacturing agreement of one manufacturer cannot import zero tariff tractors from different manufacturer under the Scheme.
(c) Declare that the Respondents Nos. 4 and 6 are not qualified/eligible in terms of the conditions stipulated in the public notice dated 13-8-2005 to be granted permission under the scheme to import 2500 tractors at zero tariff.
(d) Direct that in the execution/implementation of Government policy/Scheme of grant of permission to import 10,000 tractors at zero tariff, the Respondent No. 1 must act in order to achieve the objective of promoting interests of farmers by timely supply of tractors to them and to pass on the benefit of zero tariff/reduced price to the farmers and not to provide opportunity to private importers/respondents to unjustly enrich themselves at the expense of farmers and public exchequer.
(e) Direct the Respondent No. 1 to grant permission to the petitioner to import 2500 Belarus tractors at zero tariff under the Scheme.
(f) Grant any other relief deemed appropriate in the circumstances of the present case.
(g) Grant costs of the petition."
The Respondent No. 1 in its parawise comments has taken plea that the advertisement was published in the National Dailies inviting proposals in accordance with the amended ECC decision and it was mentioned in the advertisement that import of tractors shall be allowed only to those companies who, "want to install their tractors manufacturing facility in Pakistan". The attention of learned Federal Counsel was drawn to the advertisements dated 4-8-2005 and 13-8-2005 and it was pointed out that the assertion in para. 4(a) of the parawise comments is factually incorrect. It, was not mentioned in the advertisement that import of tractors shall be allowed only to those companies, "who want to install their tractors manufacturing facility in Pakistan". The advertisements contain that, "the proposals for import were invited from those registered companies, which are in the process of installing the tractors manufacturing/assembling units in Pakistan". It is further contended in para. 4(b) that the import of tractors was allowed in CBU condition to Messrs Dewan Automotive Engineering Co. Ltd., Universal Tractors Ltd. and Agro Tractors, but import of tractors in CKD condition was also allowed by ECC on the representation of. approved firms. However, no such modified decision of ECC has been brought on record.
It is also averred in para. 4(c) of the parawise comments that the committee worked out modalities strictly within the parameters laid down by the ECC Cabinet. However, copy of the alleged modalities either by Economic Coordination Committee or the Committee of officials has not been brought on record and it appears that no modalities whatsoever, giving the requirements and conditions were worked out within the parameters of the decision of ECC as modified on 4-7-2005. This aspect shall be discussed further at its appropriate place. It is stated in the parawise comments that the petitioner Fecto Belarus Tractors Ltd., was an existing manufacturing unit and therefore, they were not new entrant with the result that they did not meet the criteria prescribed by ECC. Dewan Farooq Automotive, Respondent No. 4 had acquired a sick unit for manufacturing of tractors and were trying to revamp the same and therefore, they fulfil the criteria. Respondent No. 5, Universal Tractors were also having an existing manufacturing unit and they were in the process of establishing second plant. The Committee of officials formed view that since new plant was being established by the company its case was being treated differently as compared to other existing tractor manufacturing units who also applied for import of tractors. The second plant of Messrs Universal Tractors Ltd., was therefore, found to be qualified for import of tractors at zero tariff rate. It is also alleged that some terms were varied after approval of Prime Minister on a summary submitted by Ministry after examination of joint presentation filed by three eligible firms namely Respondents 4, 5 and 6. However, the copy of any such summary or copy of approval order of the Prime Minister has not been produced. It is also alleged that Respondent No. 7, Messrs Hero Motors Ltd., are new entrant and therefore, they qualify the prescribed conditions.
The Respondent No. 4, has raised objection to the jurisdiction of this Court on the ground that no writ can be issued to a person not performing any action in connection with the affairs of federation, province or local authorities and that intricate and complicated questions of fact are involved which cannot be resolved in a petition under Article 199 of the Constitution. They have stated that they acquired a tractor manufacturing plant (sick unit) in April, 2004 and it was in the process of re-vitalizing, revamping and modernizing of the sick unit at relevant time and therefore, it fell in the category of companies eligible to apply for import of tractors at zero tariff rated under the scheme. It is stated that Respondent No. 4 applied in response to the advertisement and was granted permission to import 2500 tractors in accordance with the scheme. It is further stated that the Respondent No. 4 acquired the sick unit alongwith the stock including number of unassembled tractors. These tractors were assembled by them by way of test run of the plant. It is alleged that Respondent No. 4 was not aware of the corrigendum issued on 12th July, 2005 and came to know about it for the first time when the copy of this petition was received.
The Respondent No. 5, Messrs Universal Tractors Pakistan Ltd., has contended that the petition is not maintainable as the petitioner has no cause of action against them. It is stated that they are already engaged in establishment of plant with new technology. It is further alleged that disputed questions of fact have been raised which cannot be decided in the petition.
The Respondent No. 6, Agro Tractors (Pvt.) Limited, has raised objection to the territorial jurisdiction of this Court for the reason that the respondents Nos. 1 to 3 and 9 are located at Islamabad. It is stated that the petitioner Facto Belarus Tractors is not qualified to import the tractors at zero tariff rate because they have a plant at Lahore which is closed for almost 14 years and therefore, no tractor was being manufactured and or assembled by them. It is contended that in fact it is a dispute between petitioner and the Respondent No. 7 and the Respondent No. 6 has been unnecessarily impleaded in this case.
The Respondent No. 7 has mostly taken pleas pertaining to its status and the status of the petitioner. All these pleas pertain to the disputed questions of fact. This respondent has admitted that the original decision of ECC was modified and the scheme was restricted to the companies who want to install their tractor manufacturing facility in Pakistan but has alleged that the scheme was announced by the Government of Pakistan for those companies only which on 15-8-2005 were in the process of installing the Tractor manufacturing/assembling units in Pakistan.
The interest of Respondent No. 8 is not adverse to the interest of petitioner. He is himself petitioner in the connected petition C.P. No. D-1347/2005 and the interest of Respondent No. 8 in the connected petition is also not adverse to the interest of petitioner in the leading petition and therefore, it is not necessary to narrate their pleas.
We have heard Mr. Munir A. Malik, learned counsel for the petitioner in C.P. No. D-304 of 2006. Mr. Khalid Jawaid Khan, learned counsel for the petitioner in C.P. No. D-1347/2005. Mr. Aamir Raza Naqvi, Advocate for Respondent No. 8 in the main petition and Mr. Shaikh Jawaid Mir, Advocate for Respondent No. 8 in C.P. No. D-1347/2005. The later three Advocates have adopted the arguments addressed by Mr. Munir A. Malik, Advocate. We have also heard Syed Tariq Ali, learned Federal Counsel for the Respondents Nos. 1, 2, 3 and 9 in the main petition. Mr. Salman Talibuddin, learned counsel for Respondent No. 4. Mr. Raja Qasit Nawaz, Advocate for Respondent No. 5, Mr. Mehmood A. Shaikh, learned counsel for Respondent No. 6 and Mr. Nasir Ali Jafri, learned counsel for Respondent No. 7.
During the course of arguments the following position has emerged:--
(1) The ECC took a decision on 1-7-2005 for allowing one time import of 10,000 Tractors (CBU) at zero tariff and decided to set up a committee under Secretary Ministry of Industries, Production and Special Initiatives and comprising senior level representative from the Ministries of Finance, Food, Agricultural and Livestock and Board of Investment to work out the. modalities and review the plant of import of 10,000 tractors at zero tariff.
(2) The import of tractors was to be allowed only to those companies who have their manufacturing units in Pakistan or are in the process of installing these. It was further decided that the bank guarantees may be obtained in order to ensure use of this facility by genuine manufacturers only. It was also decided that the Committee shall submit its recommendations to the Prime Minister for approval.
(3) This decision was communicated by Joint Secretary (Cabinet Committees) through a secret/immediate letter dated 4th July, 2005. to the Secretaries of various divisions. Immediate implementation of the decision was directed.
(4) After three days of the first decision, i.e. on 4th July, 2005 when the decision dated 1-7-2005 was communicated, the ECC reconsidered the decision and modified the decision dated 1-7-2005 by substituting para. (ii) thereof. Under the modified decision the import of tractors was to be allowed only to those companies who want to install their tractor manufacturing facility in Pakistan. In the original decision the bank guarantees were to be obtained in order to ensure use of this facility by genuine manufacturers only. Under the modified decision the bank guarantees were to be obtained in order to ensure use of this facility by the genuine prospective companies/investors. It was also added that in case they are unable to fulfil their commitment the proposed Committee will review the matter.
(5) Under the original decision the existing manufacturing units and those in process of installing these manufacturing units were eligible for the facility and the bank guarantees were also to be obtained from the genuine manufacturers only. Under the modified decision the existing manufacturing units were excluded from the eligibility criteria and the scope of second category was expanded. Under the original decision only such companies who are in the process of installing manufacturing units were eligible and the bank guarantees were to be obtained in order to ensure that the applicants were genuine manufacturers. In the modified decision the eligibility threshold was extended to all those companies who want to install their tractor manufacturing facility in Pakistan. Meaning thereby, that, under the original decision the second category comprised of such companies who were actually engaged in the process of installing manufacturing units in Pakistan while under the modified decision all those companies became eligible for the facility whether in actual process or having mere intention to install their tractor manufacturing facility in future which is indicated from the expression used, "those companies who want to install". This change is further indicated from the fact that under the original decision the bank guarantees were to be obtained to ensure use of facility by genuine manufacturers only while under the modified decision the bank guarantees were to be obtained to ensure that this facility is used by genuine prospective companies/investors. Under the original decision only companies were eligible who were existing manufacturers or in the process of installing manufacturing units while under the modified decision the facility became available to the companies as well as to the investors, whether they were companies, firms or individuals and to all the prospective companies and investors. It was not necessary that they should be in the process of installing manufacturing units or had taken any steps in that behalf. The result is that the modified decision became too wide, uncertain and fluid.
(6) Although under the original decision also a committee comprising senior officers headed by Secretary Ministry of Industries was set up and was given to work out the modalities for implementation of the scheme and to review the plan but under the new dispensation it became more necessary to work out the modalities before the scheme was initiated in order to bring some certainty to the scheme and avoid further complications, but, it appears that no modalities were worked out prior to the initiation proceedings for implementation of scheme and inviting of proposals through advertisement.
(7) The decisions of ECC were communicated to the various ministries concerned through a secret letter. This unnecessary secrecy has created complications, which shall be explained presently.
(8) As already pointed out the Respondent No. 1, in its comments took plea that in the advertisement it was clearly mentioned that import of tractors shall be allowed only to those companies who want to install their tractor manufacturing facility in Pakistan but it is incorrect assertion. It was pointed out to the learned Federal Counsel that both the advertisements dated 4-8-2005 and 13-8-2005 are in terms of as part of the original decision dated 1-7-2005 which was substituted by the decision of ECC dated 4th July, 2005. Under the original decision the second category of the persons eligible were the companies which were in process of installing manufacturing units. It appears that on account of unnecessary secrecy the modified decision was not brought to the notice of relevant officers of the Respondent No. 1, Ministry of Industries, Production and Special Initiatives, with the result that in the advertisements it was stated that the proposals were invited from those registered companies who are in the process of installing the tractor manufacturing/assembling units in Pakistan. Thus, these advertisements are not in accordance with the modified decision and the eligibility criteria as existing on the dates when the advertisements were published.
(9) The purpose of decision to allow one time import of 10,000 tractors at zero tariff is not contained in the decision of ECC. It appeared for the first time in the advertisements dated 4-8-2005. The purpose was shown as supply to farmers. It is not known as to who incorporated this purpose in the decision.
(10) As already observed the modalities criteria and the parameters of the scheme are not contained in the decision of the ECC which is confined to the eligibility condition only. No working of the committee of senior officers set up by the ECC has been produced before us. It is not known as to who has taken the decision that 2500 units shall be allocated to each company qualifying under the scheme.
(11) It is provided in Clause (c) of the advertisement that the company submitting proposals would be required to submit proof for establishing local tractor manufacturing/assembling plant i.e. land acquisition, technical agreement with the foreign firm for joint venture, planned annual production, capacity, application for deletion program duly approved by Engineering Development Board and schedule for setting up after sale service in the country. This condition further indicates that no parameters and criteria • were appeared prior to the advertisement and in any case it appears to be in continuation of the condition that proposals were to be given by those registered companies which are in the process of installing the tractor manufacturing/assembling units in Pakistan. In fact the criteria ought to have been fixed keeping in view the decision of ECC that the import of tractors shall be allowed only to those companies who want to install their tractor manufacturing facility in Pakistan. As observed earlier on account of unnecessary secrecy in respect of the modified decision of the ECC the advertisement was published containing wrong condition of eligibility and consequently wrong criteria which was in consonance with the condition published in the advertisement and was not in consonance with the decision of ECC as it stood after modification of the decision with effect from 4th July, 2005.
(12) In view of the modified decision it was imperative for the Committee of the senior officers to devise a detailed scheme giving the criteria and the parameters bringing certainty to the scheme and specifying as to what would be the indicators to establish that a company wants to install its tractor manufacturing facility in Pakistan and that it was genuine prospective company/investor. It was also necessary to specify in the detailed working prepared by the Committee of the officers as to what would be the time limit for import of machinery for the purpose of establishing the tractor manufacturing facility and what would be outer time limit for the installation of the manufacturing unit and in case of non-fulfillment of the commitment what would be the consequences such as forfeiture of the bank guarantees or imposition of penalty etc. The committee also ought to have devised necessary ways and means to ensure that the benefit of this facility is actually availed by the formers and the amount saved on account of import at zero rated tariff is not' siphoned off by the companies. The Committee was also required to fix the criterion whether this facility shall be available to the new entrants meaning thereby that they had no existing manufacturing units or it shall be available to the companies/investors who were existing manufacturing units and wanted to establish an entirely new manufacturing unit. It was necessary to avoid the taking of subjective decisions by the members of the Committee and to avoid the discriminatory treatment. For this purpose the definition of expression "prospective companies/investors" was required to be given in order to alienate the adoption of varying criterion for determining the eligibility. Without working out the detailed scheme and modalities the scheme was put to implementation giving rise to the complications.
(13) The ECC in its original and modified decision allowed import at zero tariff to tractors in (CBU) condition but the C.B.R. has issued exemption notification under Section 20 of the Customs Act, extending the benefit to the import in CKD condition also. It is not known as to how, the import in CKD condition was also included in the facility. No decision of the ECC has been produced before us to show that the facility was extended to import of tractors in CKD condition also. Prima facie and in the absence of any decision/order of the ECC the notification of C.B.R. granting exemption to import in CKD condition also at zero tariff appears to be beyond the decision of ECC.
Learned Advocates for the Respondents 4, 5, 6 and 7 are not able to controvert the above position but have vehemently contended that the prayer clauses of the two petitions do not contain any relief which may flow from the consideration of the issues narrated above. All of them have contended that the petitioners have filed the petitions with the purpose to get themselves included in the list of persons who were allowed the facility of importing tractors at zero tariff rate, for which both of them are not entitled and consequently the petitions are liable to be dismissed. Their plea is that the Court should not grant any relief which is not sought by the petitioners.
We are not impressed with the contention for the reason that such plea is normally raised in the cases in which the Court is exercising original jurisdiction in suit or appellate or revisional jurisdiction. Even in exercise of such jurisdiction the dominant prevailing view is that the Court can mould the relief and allow the same though it is not prayed for, as the Courts are not merely slaves of the technicalities but are the Courts of justice and, therefore, the relief can be molded in a way which serves the purpose of justice.
So far, jurisdiction under which the present petitions are being heard, it falls within the category of judicial review of administrative/public action. In exercise of such jurisdiction the Court is required to see whether the public functionaries have acted in accordance with the law. This jurisdiction of the Courts and particularly the superior Courts is in accordance with the concept of checks and balances which is integral part of the concept of separation of powers enshrined in the Constitution of Islamic Republic of Pakistan. In exercise of this jurisdiction, of judicial review of administrative/public action, the Court is required to see whether the functionaries of the State in connection with the affairs of federation, province or local authorities have done the things in accordance with the law or actions have been taken otherwise than in due course of law. The basic principles in this behalf are that in the realm of public actions every thing should be done with complete transparency and the decisions should be taken objectively and on the basis of criteria already determined and fixed. There is no room for subjectivity or the actions which smack of arbitrariness, favourtism or discrimination. If the yardsticks are not determined prior to the taking of decisions then the decisions are bound to be subjective and non-transparent, which are not the hallmarks of good governance. In a democratic set up the complete transparency and accessibility to the policy decisions in pursuance of right of information are strictly observed. In the present case, we find that first, the modified decision of the ECC was kept secret to the extent that not only the persons from whom proposals were invited were not aware of the modified decision but the relevant officials of the Ministry of Industries, Production and Special Initiatives were also not aware of the correct position with the result that the advertisements were wrongly published giving the condition of eligibility which was no more existing and omitting the eligibility condition which was holding the field. Secondly, the necessary detailed scheme was not worked out as highlighted above, with the result that the situation was uncertain and fluid which led to the subjective decisions which is reflected from the fact that some of the companies who had already existing manufacturing units were treated to be new entrants. Thirdly, the facility was extended to import of tractors in CKD condition also although in the decision of ECC produced before this Court no such decision was taken by the ECC. Fourthly, the C.B.R. issues exemption notification to import in CKD condition also which is beyond the purview of decision of the ECC. Fifthly, the purpose of the scheme finds place in the advertisement only and no detailed scheme has been devised as to how this benefit shall reach the farmers. No safeguards have been provided in the absence of detailed modalities which were to be worked out by the Committee of the senior officers.
At this stage, we would like to observe that Mr. Mehmood A. Shaikh, Advocate for Respondent No. 6, raised objection to the jurisdiction of this Court on the plea that the Respondents Nos. 1, 2, 3 and 9 are stationed at Islamabad. It was pointed out to the learned counsel that all the High Courts in Pakistan are exercising jurisdiction under Article 199 of the Constitution in respect of the decisions/orders made by the federation and the authorities/officers functioning with the affairs of federation and asked him to show any judgment of the Hon'ble Supreme Court, holding that the Sindh, Balochistan and Peshawar High Courts have no jurisdiction. The learned counsel stated that he is not in possession of any such judgment of the Hon'ble Supreme Court. The objection is therefore, repelled.
Before concluding the judgment we would like to observe that we have not considered any disputed question of fact arid any other fact affecting rights of any of the parties for the reasons that the authority competent in law should take these decisions and the disputed questions of fact are to be considered by the Civil Court.
For the reasons recorded above, both these petitions are disposed of in the terms that the entire proceedings initiated with the advertisements inviting proposals for import of agricultural tractors are not in accordance with the decision of the ECC. The entire proceedings suffer from lack of transparency and smack of subjective decision, arbitrariness and excess of jurisdiction as well as favouritism. All the proceedings are therefore, quashed. The members of the Committee set up by the ECC are directed to devise an detailed scheme containing the modalities for the proper implementation of the decision taken by ECC, prescribing the criteria as discussed above, as well as measures which are to be adopted for achieving the purpose of supply of the tractors to the farmers at the reasonable rates and to evolve the safety-valves to prevent the misuse of the scheme. After devising the detailed scheme giving the parameters, conditions, requirements, time frame and other necessary guidelines, they shall re-advertise the scheme and invite proposals and thereafter recommend the allocation of the import of tractors to the companies/investors found eligible and most suited. The exemption notification issued by the C.B.R. to the extent of import in CKD condition being beyond the purview of ECC decision is also struck down, while the; exemption to import by the approved parties in CBU condition shall remain intact, but fresh notification shall be issued after the new allocations. The existing notifications are not to be acted upon.
At the conclusion of the arguments Mr. Mehmood A. Shaikh, learned counsel for the Respondent No. 6 contended that the Respondent No. 6 has already imported 156 tractors which are not in CBU condition and the Respondent No. 6 shall have to bear heavy demurrage, therefore, it may be allowed to get the tractors released on zero tariff basis. We are not inclined to allow this relief because we have held that the exemption granted by C.B.R. to the imports in CKD condition is beyond the purview of decision by ECC and we have struck down the exemption notification to that extent. However, the Respondent No. 6, shall be at liberty to get the tractors imported by it released, on payment of normal duties and taxes.
Both the petitions stand disposed of accordingly.
(Fouzia Fazal) Order accordingly.
PLJ 2006 Karachi 196 (DB)
Present: Zia Perwaz and Amir Hani Muslim, JJ.
BAKHAT ALI and another--Petitioners
versus
SHAHNAWAZ and 15 others--Respondents
Constitutional Petition No. 162 and C.M.A. No. 424 of 2006, heard on 26.4.2006.
Constitution of Pakistan, (1973)--
----Art. 199--Sindh Local Government Elections Rules, 2005, R. 76--Constitutional election petition--Corrupt and illegal practice, charge of--Recounting to ballot papers, application for--Irregularity in counter--foils--Non--recording of evidence of parties--Election Tribunal while deciding such application declared election as a whole void on ground of such irregularity and adoption of such practice by returned candidate in collusion with polling staff--Validity--In absence of prayer and without proof of such irregularity. Election Tribunal could not un-seat the returned candidate on such ground--Allegations in election petition in absence of evidence could not be treated as proof against returned candidate--Satisfaction of Election Tribunal had to be objective satisfaction which was absent in the present case--High Court set aside impugned order. [P. 196 & 198] A, B & C
2005 SCMR 1130 and 2004 YLR 993 distinguished.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 122--Fact alleged by a party--Burden of proof--Such party had to prove such fact. [P. 199] D
Mr. Abdul Qayoom Shaikh and Mr. Nazeer Ahmed Pathan, Advocates for Petitioners.
Mr. Muhammad Nawaz Shaikh, Advocate for Respondents Nos. 1 and 2.
Mr. Ghulam Dastagir Shahani, Addl. A.-G.
Date of hearing: 26.4.2006.
Order
Amir Hani Muslim, J.--Through this petition the petitioners have impugned the order dated 18-3-2006 passed by the Respondent No. 13 whereby he has declared the whole elections as void as a consequence the petitioners who were declared as returned candidate were unseated.
The facts as it appears from the record are that Respondents Nos. 1 and 2 contested election for the seat of Nazim and Naib Nazim of U.C. Shah Abdul Latif District Khairpur and the Respondents Nos. 1 to 10 were also contesting candidates. The petitioners secured 1726 votes and were declared returned candidates, whereas Respondents Nos. 1 and 2 had secured, 1576 votes.
The Respondents Nos. 1 and 2 had challenged the election of the petitioners by way of Election Petition No. 7 of 2005, before the Respondent No. 13 inter alia on the ground of corrupt and illegal practice. The petitioners on service of the notice filed their written statement denying the averments made in this petition and in the intervening period the Respondents Nos. 1 and 2 made an application before the Tribunal which is reproduced as under:
"For the reasons mentioned in an appended affidavit, it is prayed on behalf of the petitioners that this Honourable Court/Tribunal may be pleased to conduct re-checking and re-counting of the ballot papers cast during the poll, after calling the same from concerned returning officer and scrutiny thereof."
This application was supported by the affidavit of the Respondent No. 1 in which it was prayed that the Respondent No. 13 may undertake exercise of re-count of ballot papers cast during the polls. This application was consented to by the petitioners and apparently it was agreed between the parties that the petition would be disposed of in terms of the result of the proposed re-count. However, we have noticed that in the order dated 21-10-2005 the Respondent No. 13 while disposing of the application of the Respondents Nos. 1 and 2 had inadvertently added the word "with counter-foils" which prayer was missing in the original application for which no explanation of the Respondent No. 13 is available on record. It appears that the ballot papers were counted in the recount by the Respondent No. 13 in presence of the parties and the petitioners secured 1611 votes whereas the Respondents Nos. 1 and 2 secured 1445.
The grievance of the petitioners is that instead of dismissing the petition in terms of the result of recount, the Respondent No. 13 travelled further by recounting the counter-foils of ballot papers and held that there were irregularities in the counter-foils and influenced by such irregularities the Respondent No. 13 in absence of proof against the petitioners had declared the election as a whole void inter alia on the ground that the petitioners adopted corrupt, illegal practice, illegal acts in collusion with the polling staff. According to the learned counsel for the petitioner the findings recorded in the impugned order by the Respondent No. 13 in absence of the proof was nullity. He submits that this was done on the mere allegation contained in the election petition ' which cannot be equated as evidence.
As against this the learned counsel for the Respondents Nos. 1 and 2 submits that such finding "could be recorded by the Respondent No. 13 in absence of proof. He submits that even Hon'ble Supreme Court has endorsed such an action and he has relied upon the case of Muhammad Naeem v. Ashraf reported 2005 SCMR 1130 and in the case of Rana Muhammad Mustafa v. Javed Iqbal Siddiqui reported 2004 YLR. 993.
Mr. Shahani learned Addl. A.-G. has not supported the impugned judgment.
We have heard the learned counsel and have perused the record.
We find that the Respondent No. 13 has travelled beyond the scope of the application made to him by the Respondents Nos. 1 and 2 for disposal of the election petition inasmuch as the word counter-foils introduced by him in his consent order dated 21-10-2005 was not there in the original application of the respondent Nos. 1 and 2. We are further surprised to notice that Respondent No. 13 without providing the opportunity to parties to lead evidence and had proved allegation of corruption on the part of the petitioners gave finding against the petitioners on an interlocutory application holding that they were responsible for corrupt and illegal practice. There is nothing on record which could show that any person either from the respondents side or from the side of Election Commission were examined by the Respondent No. 13.
The Respondent No. 13 has no basic knowledge of election laws and finding of such a nature unseating the petitioners was misuse and abuse of judicial power. We have further noticed that the Respondent No. 13 had treated the allegations made in the petition as proof against g the petitioners' evidence to unseat the returned candidates defeating the intent of the voters of the constituency in absence of any proof. Pleadings of the parties can never be treated as evidence. There was no occasion for the Respondent No. 13 to hold that any irregularity committed in the counter-foil by the election authority or violation of any rule by them would unseat petitioners unless it was proved by evidence. Even otherwise the Respondent No. 13 has overlooked the provision of Rule 76(2)(a) of the Sindh Local Government Elections Rules, 2005, which provides that even if any corrupt or illegal practice has been committed if the Tribunal is satisfied that it was not committed by or with the consent or connivance of that candidate. The satisfaction of the Tribunal has to be objective satisfaction which in the case is missing. The returned candidate on the basis of allegations contained in an election petition cannot be un-seated on the basis of examination of counter-foils which reflect that election staff has not followed the rules, in absence of proof that the Returned candidate was instrumental in commission of such violation. The judgments cited are distinguishable on facts. We for the aforesaid reasons allow this petition.
Before parting with the order we feel that the Respondent No. 13 has passed the impugned order, overlooking the provisions of election laws, and ignoring the settled principles that party which alleges a fact has to prove it. The impugned order passed by the Respondent No. 13 was passed on the outcome of an interlocutory application for recount. The Respondent No. 13 did not record evidence and gave finding against the petitioners which alone speaks volumes. We therefore recommend disciplinary action against the Respondent No. 13 and direct the office to send this order to the M.I.T. for placing it before the Hon'ble Chief Justice for appropriate orders.
D
(Fouzia Fazal) Petition accepted
PLJ 2006 Karachi 199
Present: Khilji Arif Hussain, J.
ABDUS SALAM--Decree-Holder
versus
GHULAM RASUL--Judgment-Debtor
C.M.A. No. 6606 of 2005 in Suit No. 126 of 2004, C.M.A. No. 129 of 2004 in Execution No. 39 of 2005 and C.M.A. No. 1914 in Execution No. Nil of 2005, heard on 22.2.2006.
Transfer of Property Act, 1882 (IV of 1882)-
----Ss. 55(l)(g) & 55(5)(b)--Specific Relief Act (I of 1877), Section 12--Civil Procedure Code (V of 1908), Section 151--Adjustment of profits--Public charges--Suit for specific performance of agreement to sell was decreed in favour of purchaser, who deposited full consideration amount--During execution proceedings, seller handed over possession of suit property to representative of Court--Amount received from purchaser was deposited by representative of Court in profit bearing scheme as possession of property in-question could not be transferred to him due to certain other proceedings--After transfer of possession, purchaser claimed to be entitled to the profit accrued on the amount deposited in the scheme, on the ground that despite making full payment he could not take any benefit of the property--On the other hand seller claimed his right to the profit for the reason that he was out of possession and did not reap any benefit from the property--Representative of Court, informed that certain amounts in shape of utility charges and other government dues against the property were outstanding--Effect--All public charges and rent accrued in respect of property up to the date of sale were to be paid by the seller under Section 55 (1) (g) of Transfer of Property Act, whereas buyer was bound under Section 55 (5)(b) of Transfer of Property Act, to pay or tender amount of purchased money to seller retaining amount of encumbrances on the property--Seller had to transfer the property free from all encumbrances till the date of execution of transfer deed but since he was ready and willing to perform his part of obligation but due to reason beyond his control same could not be transferred within the stipulated period of time--High Court directed representative of Court that out of profit earned from amount deposited, he should first clear encumbrances on the property in-question upto the date of--execution of transfer deed in favour of purchaser--High Court directed the representative that after clearance of encumbrances, if any amount remained with him, then purchaser would be entitled for the interest accrued up to the execution of sale--deed as despite his being out of pocket of money for considerable period of time, purchaser could not get benefit from the property till execution of the transfer deed--Any interest accrued after execution of transfer deed till date, be paid to seller--Application was decided. [Pp. 205, 208 & 209] A, B & C
1981 SCMR 684 and 1983 CLC 1085 ref.
Mr. Arshad Tayebaly, Advocate for Plaintiff.
Qazi Faez Isa, Advocate for Defendant No. 1.
S. A. Samad Khan, Advocate for Defendant No. 2.
Mr. Naveed-ul-Haq, Advocate for Defendant No. 3.
Date of hearing: 22.2.2006.
Order
y this order I intend to dispose of Nazir's report dated 2-1-2006 and C.M.A. No. 6606 of 2005, filed by Defendant No. 1 in Suit No. 126 of 2004, C.M.A. No. 129 of 2004, filed by the Decree-Holder Ghulam Rasool in Execution No. 39 of 2005 and C.M.A. No. 1914 of 2005, filed by Decree-Holder Abdus Salam in Execution No. Nil of 2005.
Heard Mr. Qazi Faez Isa, learned Advocate for the Decree-Holder in Execution No. 39 of 2005, Mr. Arshad Tayebaly learned counsel for the Decree-Holder in Execution No. Nil of 2005 and Mr. Naveedul Haq learned" counsel for Defendant No. 3 Saudi Pak. Leasing Co. Ltd. the issue in the matter is as to who is entitled for the profit earned on the amount deposited by Decree-Holder Abdul Salam in Execution No. Nil of 2005 . To dispose of these applications alongwith Nazir's reference I would like to give brief facts of the case.
Mr. Abdus Salam, Decree-Holder in Execution No. Nil of 2005, filed suit for the specific performance of the contract dated 22-12-2003 with a prayer for delivering actual and physical possession of Plot No. F/424 situated at SITE free from any encumbrance or lien and executing documents of transfer/mutation in favour of the plaintiff with Defendant No. 2. The Defendant No. 1 agreed to sell the property in question alongwith the machineries etc. to plaintiff Abdul Salam for a sum of Rs. 5,50,00,000 out of which sum of Rs. 5,500,000 was paid to Defendant No. 1 at the time of execution of agreement of sale and balance amount was payable within three months from the date of agreement. Vide order dated 12-2-2004, Nazir was appointed as Commissioner to prepare inventories of the machineries lying in the suit premises. On 20-2-2004, Nazir was directed to appoint guard at the expenses of the plaintiff on the property in question and plaintiff was directed to deposit 50% of balance sale consideration after adjusting 10% which has already been paid to Defendant No. 1 within two weeks from the date of order which amount was deposited by the plaintiff. On 12-4-2004, after having complaint from the plaintiff that despite order of the Court defendant has removed the machineries from the premises in question, the Nazir was directed to inspect the premises and verify the facts in terms of the inventories of plant equipment and machineries recorded by him earlier and to submit the report whether the factory premises is running or not. It was further ordered that in case if factory is not functioning or is not in a running condition, to put his lock. At this stage. Saudi Pak. Leasing Co. came forward and stated that some of the machineries in factory premises subject-matter of agreement are leased out by them and without their consent the same cannot be transferred. On 12-4-2005 an application under Order XXIII, Rule 3 duly signed by the plaintiff, Defendant No. 1 and Defendant No. 3, Saudi Pak. Co. Ltd. was submitted in Court and suit was decreed in terms of the said applications. To appreciate the respective contentions of the learned counsel for the parties, it would be useful to reproduce the terms of the application as follows:--
"1. That the Defendant No. 1 shall transfer the subject property being factory built on Industrial plot of land Bearing No. F-424 measuring 0.65 acres plus extended land of 0.11 acres situated within the jurisdiction of SITE with complete construction thereon and machineries installed therein, as inspected and listed by the Nazir under his report dated 20-2-2004 (hereinafter referred to as the "Subject Property") to the plaintiff for the total agreed sale consideration of Rs. 55,000,000 (Rupees Fifty Five Million only) (hereinafter referred to as the "Total Sale Consideration").
The Defendant No. 1 acknowledges that he has already received an amount of Rs. 5,500,000 (Rupees five Million Five Hundred Thousand only) as part payment towards the total agreed sale consideration of the Subject Property.
That an amount of Rs. 31,100,140 (Rupees Thirty One Million One Hundred Thousand and One Hundred forty only) out of the total Sale Consideration shall be paid by the plaintiff to the Defendant No. 3 for settlement of the liabilities of Defendant No. 1 towards Defendant No. 3 in respect of the lease rentals for the leased assets, and on receipt of this payment by Defendant No. . 3, the Defendant No. 3 undertakes to transfer the title and ownership of all the leased assets, and on receipt of this payment by Defendant No. 3, the Defendant No. 3 undertakes to transfer the title and ownership of all the leased assets in favour of the plaintiff. The Defendant No. 3 further confirms that on receipt of the said amount of Rs. 31,100, 140 no further amount shall be paid by the plaintiff to Defendant No. 3, so as to ensure that the total amount paid to the Defendant No. 3 is Rs. 31,100,140.
That the balance sale consideration of Rs. 18,399,860 (Rupees Eighteen Million Three Hundred Ninety Nine Thousand Eight Hundred sixty only) shall be paid by the plaintiff to Defendant No. 1 on simultaneous transfer of the Subject Property, from all claims and encumbrances in favour of the plaintiff within a period of 25 days from the date of this compromise application. It is clarified that the amount of Rs. 31,100,140 as suggested above, shall also be paid to the Defendant No. 3 simultaneously on the transfer of the subject Property in favour of the plaintiff.
That the break-up value of land and Building for the purpose of registration and transfer is a sunder:-
Rs. 12,500,000 (Rupees twelve Million Five Hundred Thousand only) for Land and Building for which a deed of Assignment will be registered by the Defendant No. 1 in favour of the plaintiff.
Rs. 42,500,000 Rupees Forty Two Million Five Hundred Thousand only) for Plant and • Machinery.
That Defendant No. 1 shall assist and fully cooperate with the plaintiff for mutation of the Subject Property including extended land of 0.11 acres in favour of the plaintiff with Defendant No. 2 i.e. Sindh Industrial Trading Estate Limited, Karachi.
That the Defendant No. 1 shall clear all outstanding dues of the subject property and convey in favour of the plaintiff with clear and marketable title and hand over its vacant and peaceful possession together with original documents of title.
That costs of stamp duty, registration and transfer fees shall be borne by the plaintiff.
That on failure of the defendants to transfer the subject property in favour of the Plaintiff, the Nazir shall be empowered to take necessary steps for transfer of the Subject Property in favour of the Plaintiff on the plaintiff depositing the balance amount of Total Sale Consideration with the Nazir of this Hon'ble Court."
After passing of the decree, both plaintiff and Defendant No. 1 filed application requesting the SITE to transfer the plot in question in favour of the plaintiff.
Defendant No. 1 filed application under Section 151, C.P.C. (C.M.A. No. 6606 of 2005) and prayed to amend the decree dated 17-1-2005 by adding the following sentence at the end of para-4 that:
"In case the plaintiff failed to make payment of the balance amount as mentioned above the advance payment shall stand forfeited in favour of the Defendant No. 1 and the defendant will be at liberty to sell the subject property."
The said application was listed for order on 29-8-2005, when the learned Judge issued notice to parties for 2-9-2005, on 2-9-2005 the following order was passed:
"It appears that this suit was decreed on 17th day of January, 2005 and the parties had performed their respective parts as stated in the said compromise decree. Grievance of Mr. Qazi Faez Isa is that deal is not being finalized. Mr. Asif Ali says that approval of the draft of sale-deed forwarded to SITE is still awaited. It appears that sufficient time has been passed and by now this exercise must have been done. SITE Authorities are directed to examine the said draft and return the same to the concerned party for further proceedings as per law, if there is no objection or other legal impediment in doing so. The objection, if any, should also be specified in writing and parties be intimated within ten days from today."
On 16-9-2005 in presence of the Advocates for the parties learned Judge directed the office to issue notice to Secretary SITE for his appearance on 21-9-2005. On 21-9-2005, Mr. Qazi Faez Isa stated that his clients have no objection and they are ready and willing to execute the required assignment deed in favour of the plaintiff on receipt of balance amount and the following order was passed:
"Mr. Qazi Faez Isa states that his clients have no objection and they are ready and willing to execute the required assignment deed in favour of the plaintiff on receipt of the balance amount. However, this assignment deed is also to be assigned by the Secretary SITE as a consenting party and only thereafter it can be accepted by the SITE. Mr. S. A. Samad Khan counsel for the SITE states that Secretary is willing to sign this document if so ordered by this Court.
Secretary SITE was issued notice to appear in person today, but he is not present and there is no explanation for his non-appearance. However, in view of the statement made by Mr. S. A. Samad Khan learned counsel for the SITE and in order to ensure that the matter is resolved at the earliest, I will direct the Secretary SITE to sign the assignment deed under the SITE Rules, Regulations and practice. This exercise shall be completed positively within one week from today and compliance shall be reported on 3-10-2005."
On 27-10-2005, Defendant No. 3, Saudi Pak Leasing Co. Ltd., filed an application under Section 151, C.P.C. (C.M.A. No. 8724 of 2005) praying that Nazir be directed to release the amount in its favour and further to direct the Decree-Holder to make remaining payment directly to Defendant No. 3 in terms of the paragraph 3 of the decree, dated 17-1-2005. Notice of the said application was ordered to be issued to the plaintiff as well as to the Nazir and on the said date-Mr. Qazi Faez Isa pointed out that in terms of order dated 21-9-2005 plaintiff was directed to submit compliance report dated 3-10-2005 and such compliance report has not been submitted by the Advocate for the plaintiff and accordingly office was directed to issue notice to the plaintiff for 8-11-2005. On 8-11-2005 learned Advocate for the plaintiff stated that the entire amount in terms of the decree has been deposited with the Nazir of Court and after execution of the sale-deed in favour of the plaintiff he has no objection if the Nazir releases the amount to Defendant No. 3 for his share and accordingly Nazir was directed to release the amount of share of Defendant No. 3 within two weeks from the date of execution of the Sale Deed after due verification in accordance with rules which amount was received by the Defendant No. 3 on 5-12-2005.
On the amount invested by the Nazir, substantial amount as interest has been accrued and now each party is claiming the same, which is the dispute in the matter.
From the Nazir's report dated 3-1-2006 it appears that a sum of Rs. 34,03,5334 is required for the payment of electric charges, dues of EOBI, telephone bills, Income Tax, Profession tax and Property tax and Decree-Holder Abdus Salam requested the Nazir to pay said amount from the profit lying with him.
The question, which requires consideration, is whether plaintiff Abdus Salam required to deposit balance sale consideration in terms of Clause 4 of compromise decree within a period of 25 days from the date of compromise application irrespective to transfer of the subject property free from all claims and encumbrances in his favour or same became payable at the time when the property was transferred in his favour.
Before I examine this question, I would like to reproduce dates when the plaintiff/Decree-Holder deposited sale consideration:
(i) Rs. 55,00,000 paid to Ghulam Rasool on 22-12-2003;
(ii) Rs. 2,20,00,000 deposited on 11th March, 2004.
(iii) Rs. 77,14,140 deposited on 1-11-2005;
(iv) Rs. 1,25,00,000;
(v) Rs. 48,99,860;, (vi) Rs. 3,07,000;
(vii) Rs. 20,79,000 on 6-12-2005.
(viii) Sale-deed executed on 19-12-2005.
From the facts stated hereinabove it appears that after passing compromise decree the parties filed application before the Secretary SITE for the transfer of the plot in favour of Abdus Salam but for one reason or other property in question could not be transferred in favour of the purchaser. On behalf of Ghulam Rasool, seller, an application under Section 151, C.P.C. being C.M.A. No. 6606 of 2000 was filed with a prayer that consent decree may be modified/amended and at the end of para. 4 it may be inserted that "in case the plaintiff failed to make payment of the balance amount as mentioned above the advance payment shall stand forfeited in favour of the Defendant No. 1 and the defendant will be at liberty to sell the subject property." On 2-9-2005 the following order was passed:
"It was observed that parties had performed their respective parts as stated in the said compromise deed and the grievance of Mr. Qazi Faez Isa is that the deal is not being finalized. Mr. Asim Iqbal learned advocate for the Abdus Salam stated that approval of the draft sale-deed forwarded to SITE still awaited. In view of above learned Judge directed the SITE authorities to examine the draft and return the same to concerned parties for further proceedings and if they have any objection they should specify such objection in writing to the parties within 10 days and matter was adjourned to 19-9-2005."
On 16-9-2005, Secretary of the SITE was directed to appear in person on the next date of hearing and on 21-9-2005 Mr. Isa stated that his client has no objection and they are ready and willing to execute the. required assignment deed in favour of the plaintiff on receipt of the balance amount and further stated that assignment deed is also to be signed by the Secretary SITE as consenting party and only thereafter it can be accepted by the SITE Mr. S. A. Samad Khan learned counsel for the SITE stated that the Secretary is willing to sign these documents if so ordered by the Court. In view of this learned Judge directed the Secretary, SITE to sign the assignment deed under the SITE Rules and Regulations within a week's time from the date of the order. The assignment deed was executed in favour of Abdus Salam on 19-12-2005.
From the facts stated hereinabove it appears that till 21-9-2005 at least seller has not asked for interest on the balance amount to be received by him and express his willingness to execute assignment deed on receipt of the balance amount. Be that as it may, clause 4 of the compromise deed provided reciprocal promises i.e. the balance sale consideration shall be paid by the plaintiff to the defendant on simultaneously transfer of the subject property free from all encumbrances within a period of 25 days. The balance amount in terms of the said clause was payable to Defendant No. 1 on transfer of the plot and that too subject to free from all claims and encumbrances. Admittedly for one reason or the other, property could not be transferred in favour of the plaintiff free from all claims and encumbrances till 19-12-2005 without any fault on the part of the plaintiff, whereas purchaser has paid the entire sale consideration much before the said date of transfer.
It is interesting to note that 50% of the sale consideration was paid by the purchaser on 11-3-2004 i.e. one year and nine months before the execution of the sale-deed and about nine months before the compromise decree and remained out of pocket of such considerable amount without taking any benefit from the property. As regards the balance amount of Rs. 2,54,21,000, a sum of Rs. 2,51,42,000 was deposited by the purchaser about one and a half month before the execution of transfer deed and rest of the amount of Rs. 2,79,000 was deposited about 15 days prior to the execution of the transfer deed.
The contention of Mr. Qazi Feaz Isa, learned Advocate for the seller, that his client remained out of pocket of such considerable amount without taking any benefit from the property in question as the same remained in the custody of the Nazir of this Court and accordingly he is entitled for the interest on the amount deposited with the Nazir. I would like to observe here that from the record it appears that the factory in question was lying idle and after receiving the complaint about the removal of the machineries from the factory premises despite restraint order Nazir of the Court was directed to put his lock and key if he found that the factory is not functioning or not in running condition. The order to put lock and key was passed in presence of the learned Advocate for the seller and at no point of time any request was made to modify the order. In these circumstances when property in question was not in the use of the seller, Nazir had taken over the possession and the seller cannot complain that the property did not remain in his possession and he could not avail the benefit from it.
In the case of Pirzada Nazir Hassan v. Major (Retd.) Ejaz Ahmed Khan 1981 SCMR 684, while dealing with the question about the, entitlement of interest accrued on the sale consideration deposited in the Court, Hon'ble Supreme Court held that:
".......... We have heard the learned counsel for the petitioner. Admittedly according to the basic agreement of sale executed between the parties, a sum of Rs. 2 lakhs was paid in advance by ' the respondent to the petitioner against its execution on the 29th of June, 1974 and according to one of the terms of this agreement, the remaining sale price of Rs. 6 lakhs had to be paid by the respondent to the petitioner at the value of registration of the sale-deed before the Sub-Registrar and delivery of the possession of the Bungalow to him within 45 days. Evidently the petitioner had failed to exercise his part of the agreement and the respondent had to file suit for the enforcement of the agreement through Court. On the 22nd of November, 1974, the trial Court decreed the suit of the plaintiff-respondent for specific performance of the agreement on deposit of Rs. 6 lakhs by him before 21st December, 1974. The respondent deposit the sum of Rs. 6 lakhs due from him in Court. But then the execution of the decree was stayed in appeal by the High Court at the instance of the petitioner. It was eventually on the 26th of July, 1978 in course of the execution proceedings that the necessary sale-deed was got executed and registered in favour of the respondent and the petitioner became entitled for the first time to receive the sum of Rs. 6 lakhs lying in deposit as the balance of the sale price. Before this execution of the sale-deed through Court the petitioner was not entitled in law to withdraw the money from the Court without having executed the sale-deed in favour of the respondent. In this view of the matter therefore, we have no doubt in our mind that the petitioner was not entitled to the interest that had accrued on the sum of Rs. 6 lakhs for the period before the 26th of July, 1978. In the circumstances the order passed by the High Court is unexceptionable. We, therefore, see no force in this petition which is dismissed."
In the case of Shaikh Muhammad Taqi v. Muhammad Anwar Khan Ghauri 1983 CLC 1085, a Division Bench of this Court held that:
"appellant/seller is still enjoying the possession of the property in dispute, although the moment the sale consideration was deposited by the purchaser in Court the possession should have been delivered to him, the appellant cannot allow benefit of possession of the property and also to appropriate interest which is accumulated on the amount of sale consideration."
Taking into consideration facts on record it appears that after passing of the consent decree all the parties in the matter made an effort to get the property in question transferred in favour of the purchaser, but due to inaction on the part of SITE, same could not be transferred, for which the purchaser alone cannot be blamed and cannot be penalized however at the same time the seller who was also willing to perform his part of obligation also remained deprived of sale consideration.
In terms of Section 55(l)(g) of the Transfer of Property Act all public charges and rent accrued in respect of the property up to the date of the sale are to be paid by the seller, whereas sub-section (5)(b) of Section 55 of Transfer of Property Act provided that buyer is bound to pay or tender the amount of purchased money to the seller retaining the amount of encumbrances on the property.
No doubt owner/seller has to transfer the property free from all encumbrances on the date of execution of transfer deed but from the facts and circumstances of this case and since the seller was ready and willing to perform his part of obligation after the execution of compromise application, but due to reason beyond his control same could not be transferred within the stipulated period of time, to meet the ends of justice, Nazir is directed that out of profit earned from amount deposited he should first clear encumbrances on the property in question from 12-4-2005, i.e. up to the date of execution of transfer deed in favour of the purchaser (the date of performance of agreement of sale between the parties). After clearance of said encumbrances, if any amount remained with the Nazir, then purchaser is entitled for the interest accrued up to 19-12-2005, as despite he was out of pocket of money for considerable period of time he could not get benefit from the property till the execution of the transfer deed. Any interest accrued after 19-12-2005, i.e. date of execution of transfer deed till date be paid to Defendant No. 1 seller.
The Saudi Pak Leasing Co. Ltd. filed application under Section 151, C.P.C. (C.M.A. No. 8724 of 2005) on 27-10-2005, i.e. after about 10 months of paying of claim, but did not claim any interest over the above the amount of Rs. 31,100,140 and for the first time by listed application, filed on 4-2-2006, they are now asking that they are entitled for the profit by way of compensation. Since said party himself agreed to accept Rs. 31,100,140 in full and final settlement of lease rentals for the leased assets and transferred the assets in favour of the purchaser on receipt of the amount and admitting SPL has not transferred leased assets till the transfer deed executed by SITE in favour of the purchaser, they are not entitled for any profit on the amount invested by the Nazir.
Nazir is directed to release the amount in terms of the compromise decree and, in terms of the order hereinabove disburse the same to respective parties.
The listed-applications and Nazir's Reference are disposed of in the above terms.
(Fouzia Fazal) Order accordingly.
PLJ 2006 Karachi 209
Present: Rahmat Hussain Jafferi, J.
PAKISTAN ENGINEERING CONSULTANTS through MANAGING PARTNER--Plaintiff
versus
PAKISTAN INTERNATIONAL AIRLINES CORPORATION through MANAGING DIRECTOR and another--Defendants
Suit No. 565 of 1986, decided on 26.8.2005.
Arbitration Act, 1940 (X of 1940)--
----S. 34--Agreement--Stay of proceedings--Prerequisite--Defendant filed written statement in the suit filed by plaintiff and raised objection to maintainability of the suit--Validity--No application under Section 34 of Arbitration Act, (X of 1940), was filed by defendant before filing of written statement, which was a requirement of law--Defendant did not invoke arbitration clause of agreement but allowed the suit to continue before the Court--Suit could not be dismissed under Section 34 of Arbitration Act, (X of 1940)--Suit was maintainable. [P. 214] A & B
Partnership Act, 1932 (IX of 1932)--
----S. 42--Partnership deed--Death of partner--Reconstitution of partnership--Original partners of firm were father, son and daughters and after the death, of father, son and daughters took over the control of firm and reconstituted it--Such intimation was conveyed to defendant, who accepted reconstitution of the partnership and allowed the firm to continue the contract not only after reconstitution but after the death of one of the partners--Partners also allowed to continue the contract--Effect--Suit filed by the partners was not hit by Section 42 of Partnership Act--Suit was maintainable. [P. 215] C
PLD 1957 Kar. 557 and AIR 1945 PC 71 rel.
Specific Relief Act, 1877 (I of 1877)--
----S. 54--Injunction, grant of--Entitlement--Recovery of money and damages--Plaintiffs entered into agreement with defendant for completing its project within the specified period--Grievance of plaintiffs was that due to delay on the part of defendant with regard to certain acts to be done by him, the project could not be completed in due time and their payments were withheld without any justification--Validity--Delay in execution of work started from the very beginning--Defendant could not point out anything from the evidence which could suggest that plaintiffs were responsible for violating terms of agreement and delay could be attributed to them--On the contrary various letters produced by plaintiffs indicated that delay was caused on the part of defendant on various aspects of the contract--Plaintiffs could not be held responsible for breach of contract but on the contrary it was the defendant who was the cause for such delay--Plaintiffs were entitled to claim total amount as the defendant failed to prove that breach of contract had occurred due to plaintiffs' action--Plaintiffs were thus entitled to the injunction as prayed for--Suit was decreed. [Pp. 216, 218 & 220] D, E & H
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 72 & 78--Documentary evidence--Proof--Document exhibited during evidence--Defendant produced an unsigned report of Chartered Accountant alongwith a covering letter addressed to General Manager of defendant--Such report of Chartered Accountant was duly exhibited during evidence--Neither the person who had signed the document was examined nor it had been proved through any other evidence to suggest that the document was issued by the person mentioned in it--Plea plaintiff was that unless execution of the document could be proved, such document could not have been relied upon--Validity--Production of document and proof of document were two different subjects--Document could be produced in evidence which was always subject to proof as required under Art. 78 of Qanun-e-Shahadat Order, 1984--Document relied upon by defendant had been formally exhibited but was not proved in accordance with law, therefore, it could not be relied upon in circumstances. [P. 219] F & G
PLD 1973 SC 160 rel.
Mr. Yawar Farooqui, Advocate for Plaintiffs.
Mr. Amir Malik and Mr. Naveed-ul-Haq, Advocate for Defendants.
Date of hearing: 11.8.2005.
Judgment
On 31-8-1986 the plaintiffs, Pakistan Engineering Consultants filed the Suit against Pakistan International Airlines Corporation and Bank of Credit and Commerce International which was merged into Habib Credit and Exchange Bank Limited that was again merged in to Bank Alflah Limited, claiming the following reliefs:
"(a) A perpetual injunction to issue to the defendants restraining them from encashing the Bank Guarantee and Performance Bond Annexures B14, B15 and the defendants be restrained from making any payments under the cited annexures.
(b) The Defendant No. 1, be restrained from completing the works in accordance with the plaintiff's designs which is in their custody pending payment of the plaintiff's dues.
(c) Money decree be awarded against the Defendant No. 1, on account of the plaintiff's dues including outstanding/ compensation/damages in the sum of Rs. 9,749,775.
(d) Interest on amount "C" 15% p.a. from the date of suit until realization.
(e) Cost of the suit and any other relief deemed fit and proper be also granted.
The case of the plaintiffs is that the plaintiffs upon the Defendant No. 1's invitation dated 3-8-1983 submitted a proposal for extension and modernization of their flight kitchen at Karachi Airport. The proposal inter alia included architectural design, drawings, procurement of a requisite equipment, consultancy and supervision of the work by a building contractor. The Defendant No. 1 accepted the proposal vide their letter of intent dated 27-10-1983. The envisaged mobilization advance representing 10% of Contract Price upon plaintiff's submission of the relatable guarantee on 17-11-1983 was released to them on 31-12-1983. The contemplated period for completion of the work was two years. The value of the work was estimated at Rs. 43.9 million and the plaintiffs were to get 3% consulting charges for the services rendered thereto. The plaintiffs submitted to the Defendant No. 1 the requisite Mobilization Advance, Bank Guarantee and Performance Bond for corresponding value, commenced the work after effecting mobilization submission of relative drawings and appointing the approved building contractor. It is alleged in the plaint that the relative drawings although timely submitted by the plaintiffs were belatedly approved by the Defendant No. 1 whose considerable delay affected their services drawings. Although the work was in full swing its progress was retarded owing to the Defendant No. 1's acts of omission and commission. The Defendant No. 1 in the matter of payment of the plaintiffs dues under the contract adopted a dilatory stand which adversely affected the progress of the work. In the meantime the then Managing Director died on 28-11- 1985. A formal supplemented deed dated 30-11-1985 envisaging the appointment of the present Managing Partner was executed by the partners of the firm. The Defendant No. 1 accepted the alteration in the firm and continued dealing with them. However, during its final phase of completion and with a view to eliminate the plaintiffs from the scene, the Defendant No. 1 with mala fide intention embarked on a preconceived design at the managerial level to exclude the plaintiffs and get the finishing done by the building contractor with whom during the execution of work requisite liaison had developed by the concerned managerial staff. The plaintiffs formal written request for extension of time submitted on 1-1-1986 though ostensibly granted was in writing being withheld. The plaintiffs however, in good faith, continued with work on the Defendant No. 1's representation in the arising context.
It is alleged that the Defendant No. 1 addressed a notice dated 13-8-1986 contending primarily on account of the death of the previous managing partner that the subject contract had come to an end. The plaintiffs received a further letter dated 19-8-1986 to the effect that in connection with the completion of the contract the plaintiffs were required to prepare the requisite documentation in furtherance of the contract. On account of Defendant No. 1's illegal action including breach of contract the plaintiffs are entitled to recover their dues, interests and damages. The Defendant No. 1, with a view to justify their delay in making payment, have set up baseless and vague charges regarding the plaintiffs purported default which is denied. The Defendant No. 1 with a view to further aggravate the situation are making steps for encashment of Bank Guarantee and Performance Bonds. The Defendant No. 1 notwithstanding their breach are threatening to continue with the works without the plaintiffs although they are fully utilizing the plaintiffs design • thereof, hence the plaintiffs filed this suit.
Only Defendant No. 1 Pakistan International Airlines Corporation contested the suit. The Defendant No. 1 admitted the letter of intent dated 27-10-1983 and agreement dated 16-4-1984 with the plaintiffs a partnership firm but took the plea that the plaintiffs breached the terms of contract as they did not complete the work within the stipulated time mentioned in the agreement. The Defendant No. 1 however, took further plea that Kafiluddin Ahmed Managing Partner of the firm died on 28-11-1985, therefore, the agreement had come to an end and the Defendant No. 1 was no longer bound and liable under the said agreement. The Defendant No. 1 also took the plea that because of the delay in completion of the contract, the Defendant No. 1 has suffered serious financial losses and counter-claimed damages in the amount of Pak Rs. 28,277, 574 and US $ 218486 alongwith interest of 15% per annum. The Defendant No. 1 also alleged that the suit was not maintainable.
Out of the pleadings of the parties the following issues were framed.
ISSUES
(1) Whether the suit is or is not maintainable?
(2) Whether the plaintiff is entitled to the injunctions prayed for in the Suit?
(3) Whether the plaintiff is entitled to any money decree as prayed for?
(4) Did the plaintiff commit any breach of the contract dated 27th October, 1983, and if so, to what effect?
(5) Is the Defendant No. 1 entitled to the counter-claim?
(6) Has the plaintiff got any cause of action?
(7) To what relief the Defendant No. 1 is entitled?
In support of the case the plaintiffs examined Hyderuddin Ahmed one of the partners of the plaintiffs' firm who produced series of documents from Exhs. P/l to P/109 containing deed of partnership, agreement executed between the parties, correspondence exchanged between them on various subjects concerning the contract and other documents. The Defendant No. 1 examined Fareed Ahmed Mughal Manager Projects. He also produced various documents containing general conditions of the contract, correspondence exchanged between the parties, letter of termination of contract, partnership deed of plaintiff's firm, etc.
I have heard the parties' Advocates, perused the evidence and documents available on the record. My findings on the above issues are as under for the following reasons:
FINDINGS
Issue No. 1 The suit is maintainable.
Issue No. 2 In affirmative.
Issue No. 3 In affirmative (as under).
Issue No. 4 In negative.
Issue No. 5 In negative.
Issue No. 6 In affirmative.
Issue No. 7 The suit of the plaintiff is decreed as under.
REASONS
ISSUE NO. 1.--The burden of proof lies upon the Defendant No. 1 to prove the issue. Learned Advocate for the Defendant No. 1 has argued that the suit is hit by Section 34 of Arbitration Act as there was an arbitration clause in the agreement and that the suit is not maintainable under Section 42 of Partnership Act as the firm was dissolved on the death of Kafiluddin Managing partner of the firm.
Conversely learned Advocate for the plaintiffs has stated that Section 34 of Arbitration Act is not applicable: that the suit is not hit by Section 42 of Partnership Act as the parties intended to continue the contract on the old terms and conditions.
A perusal of Section 34 of Arbitration Act reveals that it is applicable in a case when a suit is filed without referring the matter to arbitrator as per agreement. Under this provision the Court has power to simply stay the proceedings of the suit and refer the matter to the arbitrator. In the present case no such application was filed by the Defendant No. 1 before filing written statement, which is requirement of the law. It appears that the Defendant No. 1 did not invoke the said arbitration clause of the agreement but allowed the suit to continue before this Court. Under Section 34 of Arbitration Act the suit cannot be dismissed. Confronted with the above position, the learned Advocate for the Defendant No. 1 has agreed that suit is not hit by Section 34 of Arbitration Act.
As regards the second submission, it is an admitted position that Kafiluddin Ahmed Managing Partner of the plaintiffs' firm died on 28-11-1985. Thereafter the terms of the contract were being implemented. The Defendant No. 1 allowed the firm to continue its obligation under the terms of agreement even just after the death of Kafiluddin and after the firm was reconstituted by the remaining partners of the firm. As such, the conduct of the parties shows that they allowed the contract to continue the business of the firm after the death of one of partners. A similar question arose in a case of Tarachand Ghanshamdas v. Pakistan PLD 1957 Kar. 557. In that case during subsistence of agreement one of the partners died. The Division Bench of this Court examined the question but there was difference of opinion between the members of the Bench. One of the members of the Bench Muhammad Bakhsh, J. took the view that there was no dissolution because a contract to continue the firm after the death of a partner could be inferred from the conduct of the parties whereas another member of the Bench Munshi, J. took the view that the Writ Petition was not maintainable inasmuch as the alleged agent could not represent a dissolved firm. As there was conflict of opinion between the Judges, therefore, the matter was referred to Constantine, J. under the Letters Patent. The learned Constantine, J. agreed with the view taken by learned Muhammad Bakhsh, J. by holding that implied contract excluding dissolution by death of a partner may be inferred from the circumstances of the case. The rule laid down in the above authority is fully applicable to the facts and circumstances of this case. It is pertinent to point out that the original partners of firm were father, son and daughters. A similar question was examined by the Privy Council in the case of Deviji Goa v. Tricumji Jiwandas AIR 1945 PC 71 it was observed as under:
"Their lordships are also of opinion that having regard to the nature of the partnership which went on as a living concern continuously since the time it was started, that separation or death of some members of the firm, others-their sons or grandsons-taking their place, cannot amount to dissolution, as Goa Petha presumably agreed to treat as partners the remaining members of the firm or such members as were added to it from time to time.".
In the present case also the original partners of the firm were father, son and daughters. After the death of father, the son and daughters took over the control of the firm. They further reconstituted the firm with the remaining partners and then such intimation was conveyed to the Defendant No. 1 who accepted the said reconstitution of the partnership and allowed the firm to continue the contract not only after reconstitution but after the death of one of the partners. The partners also allowed the firm to continue the contract.
In view of above circumstances the suit of the plaintiffs is not hit by Section 42 of Partnership Act.
ISSUE NO. 4.--The burden of proof, to prove the issue lies upon the Defendant No. 1. The learned Advocate for the Defendant No. 1 has stated that the plaintiffs have committed the breach of contract when they failed to fulfil the contract within 2 years of its execution. In order to substantiate his arguments, he has stated that the plaintiffs delayed in carrying out the work by taking irrelevant matters in their letters with regard to mobilization of advance, approval of layout plans, installment of equipment etc. Conversely, the learned Advocate for the plaintiffs has stated that contract was not completed because of delaying tactics adopted by the Defendant No. 1. He referred to various documents by showing that delay had occurred in advancing the mobilization advance which was to be given after 15 days of furnishing bank guarantee; that the Defendant No. 1 delayed in approving of kitchen layout drawing, providing import licence, releasing foreign exchange, installation of equipment imported directly by the Defendant No. 1, insistence of Defendant No. 1 on single manufactures specified by them for certain items, withholding payments for work done and equipment delivered.
Defendant No. 1 examined Farid Ahmed Mughal Manager Project whereas the plaintiffs examined one of partners Haderuddin Ahmed who produced various letters and documents in support of the case.
I have examined the evidence and the documents produced by the parties in support of their respective claims and find that before the actual agreement there as a letter of intent dated 27-10-1983 between the parties containing the same terms and conditions which are mentioned in the agreement of contract dated 16-4-1984. Thereafter there were general terms of contract which have been produced by the parties. The Defendant No. 1 has produced these documents as Exhs.D-1/1 to D-l/3. According to the terms and conditions of the contract mobilization advance was to be provided by the Defendant No. 1 within 15 days after furnishing insurance guarantee. According to general terms of conditions the drawings were to be approved by the Defendant No. 1 within 15 days of their submission. In this case from the very start delay has occurred in advancing mobilization advance. No date was fixed for furnishing insurance guarantee but the plaintiffs submitted bank guarantee on 17-11-1983 but the mobilization advance was given after 45 days. Thereafter the Defendant No. 1 wanted to change the alignment of boundary wall and approval was given on 10-1-1984. Drawings were submitted to the Defendant No. 1 for approval but the approval was given after delay of 150 days. There was delay in providing import licence and releasing foreign exchange. There was delay in providing equipment imported directly by the Defendant No. 1. There was delay in withholding payments of running bills. When confronted, the learned Advocate for the defendant firstly stated that the drawings were not required to be approved by the Defendant No. 1, as per clause (b) of the letter of intent, dated 27-10-1983, which was the initial contract between the parties till drawing up a formal agreement. But when he was confronted with the general conditions of the contract appearing at page 5 of the said conditions and mentioned in para. 12, then he frankly conceded that the plaintiffs were required to furnish two sets of complete final details of working drawings which were to be approved by the Defendant No. 1 within 15 days. He frankly conceded that the said approvals were not provided within the required period. He also admitted that the mobilization advance was not furnished within 15 days of furnishing bank guarantee but he took the plea that under the agreement the plaintiffs were required to provide insurance guarantee and not bank guarantee. On queries he frankly conceded that the Defendant No. 1 never objected to furnishing bank guarantee instead of insurance guarantee by the plaintiffs. Thus delay in executing of the work starts from the very beginning. Learned Advocate for the Defendant No. 1 could not point out anything from the evidence which can suggest that the plaintiffs were responsible for violating the terms of agreement and the delay can be attributed to the plaintiffs but on the contrary various letters produced by the plaintiffs clearly indicate that the delay was caused on the part of the Defendant No. 1 on various aspects of the contract. As such, the plaintiffs cannot be held responsible for breach of the contract but on the contrary it was the Defendant No. 1 who was the cause for such delay. The Defendant No. 1 has failed to prove this issue, therefore, the same is replied in negative.
ISSUE NOS. 2 AND 3. As both the issues are connected with each other therefore they are discussed together. The burden of proof lies upon the plaintiffs to prove these issues. The plaintiffs in para.7(a) of the plaint has claimed the following amount:--
S. No. Description Date Amount Mark-up @ Total 15% p.a. till date of filing suit.
Local Currency 1. Reimbursement of 26.1.1986 605,900 52,041 657,941 Import Licence fees, Letters of Credit and Insurance charges
15th Running Bill 20.2.1986 1,481,365 108,972 1,590,337
Consultancy Fees 20.3.1986 658,500 42,487 700,987 (1.5%)
16th Running Bill 13.5.1986 508,893 21,332 530,225 (Total 1,990,258)
Generator 11.6.1986 2,000,000 60,000 2,060,000
Balance Consultancy Not Yet 658,500 --- 658,500 Fees (1.5%) billed
Reimbursement of Not yet 40,392 --- 40,392 Insurance billed
Foreign Exchange 19.3.1986 1,786,278 115,986 1,902,264 Third shipment ($137,406 of equipment @ Rs. 13) (30.12.1985)
Balance of 12.12.1985 402,384 46,785 509,129 second shipment of equiment (31.10.1985)
Office running --- --- --- 600,000 expenses since January 1986 @ Rs. 75,000 p.m.
Installation of --- --- --- 500,000 equipment imported by PIAC
Grand Total: Rs. 9,749,775
With regard to the expenses at Serial No. 1, the plaintiff has relied upon Exhs.65, 75 and 84. A perusal of these exhibits reveal that they are the letters sent by the plaintiffs to the Defendant No. 1. The plaintiffs have claimed reimbursement of Import Licence Fees, Letters of Credits and Insurance charges. From this it appears that the plaintiffs had paid these amounts to the concerned departments but no proof whatsoever in the shape of payment vouchers or through any mode has been produced to show that the amount of Rs. 605,900 was paid by the plaintiffs towards the charges. Merely on the letters and without proof of payments, the amounts cannot be claimed by the plaintiffs.
As regards the payment of 15th and 16th running bills, the defendants' witness in the cross-examination has admitted the 15th and 16th running bills owed by the defendants to the plaintiff for the work done after the death of Kafiluddin Ahmed had not been paid, as such, the plaintiffs are entitled to-recover the amount mentioned at Serial Nos. 2 and 4.
The plaintiffs have also claimed consultancy fees. Under clause 4 of the Contract of agreement Exh.P-1/3, the consultancy fees are to be paid to the plaintiffs at 3% of the cost of the project. The defendant's witness in the cross-examination has also admitted that the consultancy fee at 3% of the project costs at Rs. 43.9 million is to be paid to the plaintiffs. Therefore, the consultancy fees at Serial Nos. 3 and 6 are required to be paid to the plaintiff.
As regards the claim of purchase of generator, the defendant's witness in the cross-examination has admitted that the plaintiffs had supplied the generator of value of Rs. 20,00,000 to the defendants on 11-6-1986 and such invoice of payment was submitted to the defendants on 11-6-1986 vide Exh. 102. Thus the amount claimed at Serial No. 5 is required to be paid to the plaintiff. As regards the claims at Serial Nos. 8 and 9, the plaintiffs have produced the invoices which were attached to Exhs.97 and 82, as such, they are entitled to recover the amount mentioned at Serial Nos. 8 and 9. As regards the claim at Serial Nos. 7, 10 and 11, no proof has been filed to prove the payments, as such, the plaintiffs are not entitled to claim such amounts.
In view of above discussion, the plaintiff are entitled to claim total amount of Rs. 75,55,920. As the defendants have failed to prove that the breach of contract had occurred due to plaintiff's action, therefore, the plaintiffs are entitled to the injunctions as prayed in the. suit. The issues are replied in affirmative.
ISSUE NO. 5. The burden lies upon the Defendant No. 1 to prove the issue. Learned Advocate for the Defendant No. 1 has stated that the Defendant No. 1 has counter-claimed as per statement prepared by Hyder Bhimji and Co. which has been produced in evidence. At the time of production of this document an objection was raised. Learned Commissioner did not allow the document to come on the record on the ground that this document was not mentioned in the plaint, therefore, without leave of the Court the document cannot be accepted. This document is not prepared by the Defendant No. 1 but it was prepared by Hyder Bhimji and Co. Chartered Accountants, This document merely bears the stamp of the said Chartered Accountant but it was not signed by any of their officer. A covering letter has been produced which is purported to be signed by one Hyder Ali. It was addressed to general Manager Works Pakistan International Airlines Corporation. A production of document and proof of documents are two different subjects. A document can be produced in evidence which is always subject to proof as required under Article 78 of Qanun-e-Shahadat Order. The said Section reads as under:
"Proof signature and handwriting of person alleged to have signed or written document produced.--If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the documents as is alleged to be in that person's handwriting must be proved to be in his handwriting."
"I am of the view that even if such documents are brought on record and exhibited without objection, they remain on the record as "exhibits" and faithful copies of the contents of the . original but they cannot be treated as evidence of the original having been signed and written by the persons who purport to have written or signed them, unless the writing or the signature of that person is proved in terms of the mandatory provisions of Section 67 of the Evidence Act. If instead of the copy Exh.PE., the original Form "E" which formed the primary evidence, had been exhibited on the record without proving as to who was its author can it be argued that by merely exhibiting it, the document should be taken for granted as bearing the signature of the appellant without proof that in fact it was written and signed by him. The onus obviously lay on the respondent to prove this fact and his failure to prove it did not cast any responsibility on the appellant to negatively disprove it."
This document which has been formerly Exhibited as D/6 has not been proved in accordance with law, therefore, it cannot be relied upon. The learned Advocate for the Defendant No. 1 has frankly conceded that documents Exh.D/6 is the only document which can support the counter-claim of the Defendant No. 1. As the said document has neither been produced in evidence in accordance with law nor proved as required by law, therefore, the same cannot be relied upon. Thus the Defendant No. 1 has failed to prove this issue.
ISSUE NO. 6. In view of my findings on the above issues, the plaintiffs have cause of action, as such, the issue is replied in the affirmative.
ISSUE NO. 7. In view of my findings on the above issues, the suit of the plaintiffs is decreed against the Defendant No. 1 for an amount of Rs. 75,55,920 with 15% mark-up from the date of suit till realization of amount. The suit in respect of injunction is also decreed as prayed with costs.
(Rafaqat Ali Sohal) Suit decreed.
PLJ 2006 Karachi 220
Present: Gulzar Ahmed, J.
MUHAMMAD KAMRAN KHAN through ATTORNEY--Plaintiff
versus
F.N.E. DINSHAW TRUST through TRUSTEES and others--Defendants
Suit No. 1121 and C.M.A. No. 6166 of 2004, decided on 24.10.2005.
(iii) Trusts Act, 1882 (II of 1882)--
----Ss. 48, 36, 37, 38, 39 & 17--Power of trustee to convey property--Scope--Convey or dispose of the property--Trustee has to be empowered to sell the trust property, which power has to be derived from the Trusts Act, and the instrument of trust--Trusts Act, has no provision which empowers a trustee to sell trust property--It is the instrument of trust that will govern the affairs of the trust and its properties--Where the trust deed specifically provided that it would be lawful for the trustees to sell or dispose of the trust properties or any of them and to give effectual receipt for purchase money, it empowered all the trustees jointly to sell or dispose of the trust property and give effectual receipt for purchase money--Provision of S. 48, Trusts Act, (II of 1882) in circumstances, would have application to the case which provided that where there were more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provided. [Pp. 226 & 227] A & B
2000 SCMR 506; PLD 1983 Kar. 387; PLD 1983 SC 693; 1983 SCMR 183; 1997 SCMR 1443; 1987 MLD 2035; PLD 1982 Lah. 49; PLD 1997 SC 835; 2000 SCMR 506; 1999 SCMR 2267; 1992 SCMR 786; 1991 SCMR 305; PLD 1990 SC 612; SBLR 2003 Sindh 57; AIR 1936 Mad. 14; PLD 1986 Kar. 358 and AIR 1980 SC 1334 ref.
Trusts Act, 1882 (II of 1882)--
----S. 48--Civil Procedure Code, 1908 (V of 1908), O. XXXIX, Rr. 1& 2--Specific Relief Act (I of 1877), S. 12--Suit for specific performance of agreement to sell--Application for grant of injunction--Private trust property--Trustees of the property were required to execute the sale agreement but they had altogether denied the execution of alleged agreement to sell--Plaintiffs task in such a "situation became more onerous than just relying upon the doctrine of indoor management and even if said doctrine was applied to the case, plaintiff had to show, prima facie that the agreement was executed by the trust/trustees according to S. 48, Trusts Act, (II of 1882) which he had failed to establish--Application of plaintiff for grant of injunction was dismissed. [P. 229] C
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Civil Procedure Code, 1908 (V of 1908), O. VII, R. 7--Suit for specific performance of agreement to sell--Obligation annexed to the ownership of the property in dispute--Scope--Plaintiff or his father was a tenant of one shop in the property in question--Plaintiff had not been able to establish prima facie that there was an agreement to sell the in his favour--In order to claim some interest in the said property, plaintiff in the first place had to show that there was some material on the record which gave him right to acquire some interest in the property--No such material having been shown or pointed out, alleged agreement was nothing but an abstract. [Pp. 231 & 232] D
Mr. Rasheed A. Razvi, Advocate for Plaintiff.
Mr. Khalid Anwar, Advocate for Defendants Nos. 1(a), (b) & 3.
Mr. Mustufa Lakhani, Advocate for Defendant No. 2.
Date of hearing: 19.10.2005.
Order
This is an application under Order XXXIX, Rules 1 & 2, C.P.C. (C.M.A. 6166/04) in which plaintiff has prayed that the defendants be restrained from entering into any agreement or transaction with respect to the plot of land Bearing No. 25.SB-6. Zaibunnisa Street, Saddar. Karachi measuring 867.75 square yards alongwith construction thereon (hereinafter called the said property). Counter affidavit has been filed by Defendant No. 1 to which rejoinder affidavit is filed by the plaintiff.
Facts necessary for the disposal of this application are that one Muhammad Akhtar Khan the father of plaintiff is the tenant of one shop in the said property where he is running a jewellery outlet by the name of Tessori, The said property is stated to be owned by the Defendant No. l which is the Trust and Defendants 1(a), 1(b) and 3 are the Trustees. It is stated that the Defendant No. 1 desired to sell the said property and the plaintiff showed interest of purchasing the same on which negotiation took place between both the parties. As there was problem of Sanad and registration the matter was referred by both the parties to a mutually trusted friend namely Mr. Naim-ur-Rehman, Barrister who agreed to examine it and prepare an Aide Memoire. It is alleged that subsequently the parties entered into an agreement to sell dated 26-8-2003 whereby defendants trust/trustees agreed to sell while plaintiff agreed to purchase the said property for a total consideration of US $ 1 million and towards advance an amount of US $ 1,50,000 was paid by the plaintiff to the Defendant No. 1(a) which is also acknowledged in the agreement. It is alleged that due to the problem of Sanad, the defendant trust trustees asked the plaintiff not to publish notice in newspaper as it desired to resolve this problem first. A public notice appeared in newspaper on 28-8-2004 published by an Advocate for an undisclosed purchaser inviting objections in respect of purchase of the said property on as is where is basis. This led to giving of legal notice by the plaintiff which was replied by the defendants trust trustees Advocate. The plaintiff thereupon filed this suit for specific performance of agreement to sell in which following prayer is made:--
(a) Declare that the Agreement to sell dated 26-8-2003 between the plaintiff and the Defendant No. 1 is liable to be specifically performed by the Defendant No. 1, through its trustee.
(b) Grant mandatory injunction directing the Defendant No. 1, to specifically perform the Agreement to sell dated 26-8-03 and execute and register the sale-deed/sanad/power in favour of the plaintiff and do all acts necessary to put the Plaintiff in full, exclusive and quiet possession and ownership of Plot of land bearing No. 25, SB-6, Zaibunnissa Street, Saddar, Karachi. Admeasuring 867.75 square yards, alongwith construction thereon including shop presently lying vacant.
(c) In the event of failure of the trustee (s) of the Defendant No. 1 to fulfil their obligations to execute and register the sale-deed Sanad power in favour of the Plaintiff with respect to plot of land Bearing No. 25, SB-6, Zaibunnissa Street, Saddar, Karachi, admeasuring 867.75 square yards, alongwith construction thereon, direct the Nazir to perform the aforesaid acts.
(d) Direct the concerned authorities to register the sale-deed/sanad/power in favour of the plaintiff and do all acts necessary to put the plaintiff in full, exclusive and quiet possession and ownership of plot of land Bearing No. 25, SB-6, Zaibunnissa Street, Saddar Karachi, admeasuring 867.75 square yards, alongwith construction thereon.
(e) Declare that agreement, deed or transaction, if any, between the Defendant No. 1, and the undisclosed buyer/Defendant No. 2, with respect to the suit property is illegal, void and of no legal effect whatsoever.
(f) In addition, grant compensation to the plaintiff caused due to failure of the Defendant No. 1 to specifically perform the agreement in time and also grant mesne profits.
(g) Grant any other relief, which is deemed just and proper in the circumstances of the case.
(h) Grant costs of the suit.
The Defendants Nos. 1, 1(a) and 1(b) have filed a joint written statement in which preliminary objections to the maintainability of the suit are taken. Besides it, the tenancy and preparing of Aide Memoire is admitted but the entering into agreement dated 26-8-2003 is altogether denied and it is labelled as fictitious document fabricated by the plaintiff in order to serve his mala fide and fraudulent intentions. The receipt of advance amount of US. $ 1,50,000 is also denied.
Mr. Rasheed A. Razvi learned counsel for the plaintiff has contended that the agreement to sell dated 26-8-2003 is duly executed and the trust trustees are obliged to perform the same. He has contended that Defendant No. l(a) as trustee has dealt with all the affairs of the said property and relying upon doctrine of indoor management has stated that the agreement is binding on the trust/trustees. He has stated that the copy of the trust deed was not supplied to the plaintiff. He has relied upon the case of Sripada Satyanarayana Sarma v. Ravikanti Venkataramamurithy and others, (AIR 1935 Mad. 454), Messrs Canal Breeze Cooperative Housing Society Limited v. Agricultural and Transport Development Corporation (Pvt.) Limited, (2000 SCMR 506), Muhammad Matin v. Mrs. Dino Manekji Chinoy and others, (PLD 1983 K 387), Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693. He has also contended that for any reason, the agreement to sell is found to be not reliable, his alternate plea is. that there is a oral agreement to sell between the plaintiff and the trust/trustees which can be specifically enforced. He has further stated that plaintiff has prima facie case and granting of injunction in suit for specific performance is a rule and relied upon Bashir Ahmed v. Muhammad Yousuf, (1983 SCMR 183), Manzoor Ahmed v. Hamid Shah Gilani, (1997 SCMR 1443), and Ferozuddin v. Tien Ying lee, (1987 MLD 2035). In the end, he has contended that the application is liable to be granted against Defendant No. 2 also as protection of Section 27 Specific Relief Act is not available to him.
Mr. Khalid Anwar, learned counsel for the defendants trust/trustees has on the other hand argued that trust is not a legal person and suit against it is not maintainable, that the trust deed governs how trust is to be operated and that plaintiff was aware of all the trustees. He has further contended, that the agreement is not signed as per the trust deed, the resolution mentioned in the agreement does not exist, no public notice published in terms of clause 2 of the agreement, the problem of Sanad was already there since two years and plaintiff was in knowledge that there is no new sanad as is mentioned in Aide Memoire. He contended that no sale of the said property can be made in the manner as suggested in the Aide Memoire. That there is no plea of oral agreement in the plaint. That there can be no decree for specific performance in the absence of sanad. That plaintiff has not stated as what steps he has taken for performance of the agreement for the last two years. That Mr. Naim-ur-Rehman is not a witness to the agreement, the origin card of Mr. Jamshed Marker and NIC of the Ardeshir Cowasjee are not available with plaintiff and even Mr. Jamshed Marker who is named as one of the trustees and party to the agreement was not present at Karachi. He has stated that the agreement comprises of four pages but except for last page, there is no signature or initials of the parties on the first three pages. He has stated that though Mr. Jamshed Marker is named in the agreement but it does not bear his signature. No receipt of advance payment of US $ 1.50.000 is filed with the plaint or rejoinder but a photo-copy of receipt is filed with C.M.A. 7012/05 after about one year of filing of counter affidavit. He stated that plaintiff never asked for the copy of trust deed. He contended that the defects, flaws, shortcomings and lacunas make the agreement improbable and not safe to rely upon and no injunction can justifiably be granted. He has distinguished the case-law relied upon by the plaintiff counsel and also the provisions of Sections 36, 37 & 39 of the Trust Act and relied upon Section 21(e) of the Specific Relief Act and the case of Jamil Ahmad v. Provincial Government of West Pakistan, (PLD 1982 L-49) and Obaidullah v. Habiabullah, (PLD 1997 SC 835).
On the point of doctrine of indoor management he has relied upon the case of Gajendra Naith Dey v. Moulvi Ashraf Hussain, (AIR 1923 Cal. 130). Messrs Canal Breeze Cooperative Housing Society Limited v. Agricultural and Transport Development Corporation (Pvt.) Limited (2000 SCMR 506). He has stated that there can be no specific performance of oral agreement and relied upon Muhammad Aslam v. Muhammad Khan, (1999 SCMR 2267). That there is no waiver by Mr. Jamshed Marker and relied on Jam Pari v. Muhammad Abdullah, (1992 SCMR 786) and Gohar Rehman v. Liaqat Ali, (1991 SCMR 305). That prayer in suit is only against one trustee and that there being no Sanad no specific performance of registered sale-deed power can be granted.
Mr. Mustufa Lakhani, learned counsel for the Defendant No. 2 contended that the Defendant No. 2 was not aware of prior agreement.
Mr. Rasheed A. Rizvi in rebuttal has argued that definition of word `trust' in Trust Act and Specific Relief Act are different and that of Trust Act has application to this case. He has stated that Section 21(e) of Specific Relief Act is not applicable to the case. In respect of doctrine of indoor management, he has relied upon the case of Mrs. M.N. Arshad v. Miss Naeema Khan (PLD 1990 SC 612), Gajendra Nath Dey v. Moulvi Ashraf Hussain, (AIR 1923 Cal 130), Hussain A Haroon v. Mrs. Laila Sarfaraz, (SBLR 2003 Sindh 57), Nalmani Poricha v. Appanna Poricha (AIR 1936 Mad. 14). He stated that Mr. Ardeshir Cawasjee is also attorney of Ms. Ava Ardeshir Cawasjee the Defendant No. 3 and that in this way the agreement is signed by two trustees out of three which is majority. He stated that the defendants trust/trustees have taken two pleas that agreement is a forgery and at the same time has raised grounds to show that it is not validly executed. He has stated that these are mutually destructive pleas which cannot be advanced. On the point that specific performance of oral agreement is provided in law, he has cited Mobinul Haq Siddiqi v. Mrs. Hajra Farooqi, (PLD 1986 K 358). In the last he has contended that he plaintiff can be granted transfer of interest by extending the scope of relief in terms of Order 7, Rule 7, C.P.C. and relied upon Bai Dosabai v. Mathurdas Govinddas (AIR 1980 SC 1334).
I have considered the arguments of the learned counsel and have gone through the case-law relied upon by them and also perused the record of the case.
The admitted fact is that the said property is in the name of Trust the Defendant No. 1 and Defendants Nos. l(a), (b) and 3 are its trustees. The trust deed dated 29-1-1936 in its clause 4 empowers the trustees to sell, exchange and dispose of the trust properties, give effectual receipts and assurances etc. In the present case, the agreement, as per trust is concerned apparently shows signature of only one trustee that of Defendant No. l(a) only and the same is the case with receipt of US $ 1,50,000 stated to be advance of the sale consideration.
Learned counsel for the plaintiff has referred to Sections 36, 37 and 39 of the Trust Act 1882 to demonstrate that the law gives power to one trustee to act for the trust property and even to convey the trust property and in this respect has relied the cases of Sripada Satyanarayana Sarwa and Nilamani Povicha (Supra). On the other hand learned counsel for the defendant Trust/trustees has contended that Sections 36 and 39 of the Trust Act have no application to the case in hand and that all the trustees could only contract for the sale of trust property and receive consideration for it. Sections 36, 37 and 39 of the Trust Act are as follows:-
`36. General authority of trustee.--In addition to the powers expressly conferred by this Act and by the instrument of trust, and subject to the restrictions, if any, contained in such instrument, and to the provisions of Section 17, a trustee may do all acts which are reasonable and proper for the realization, protection or benefit of the trust property, and for the protection or support of a beneficiary who is not competent to contract.'
`37. Power to sell in lots, and either by public auction or private contract.--Where the trustee is empowered to sell any trust-property, he may sell the same subject to prior charges or not, and either together or in lots, by public auction or private contract, and either at one time or at several times, unless the instrument of trust otherwise directs.'
`39. Power to convey:--For the purpose of completing any such sale, the trustee shall have power to convey or otherwise dispose of the property sold in such manner as may be necessary.'
Perusal of Section 36 shows that it confers additional powers on a trustee apart from that what is expressly conferred by Act and by the instrument of trust and subject to the restrictions, if any, contained in such instrument and to the provision of Section 17, a trustee may do all acts which are reasonable and proper for the realization, protection or benefit of the trust property and for the protection or support of a beneficiary who is not competent to contact. Section 37 provides that where the trustee is empowered to sell the trust property he may sell it in the manner laid down in this Section. Section 39 provides that for the purpose of completing such sale, the trustee shall have power to convey or dispose of the property sold in the manner as may be necessary. Section 36 does not in any way help the cause of the plaintiff as it no where gives authority to a trustee to sell the trust property. Section 37 starts with the words where the trustee is empowered to sell any trust property' so to be able to sell a trust property, trustee has to be empowered to do so. Section 39 refers to `such sale' i.e. sale which is provided in Section 37. Therefore in order to convey or dispose of the property the trustee has, to be empowered to sell the trust property. From where such empowerment has to be derived, obviously it has to be by the Act and the instrument of trust i.e. trust deed. No provision in the Act is shown which itself empowers a trustee to sell trust property. The Act itself provides that it is the instrument of trust that will govern the affairs of the trust and its properties. In the instrument of trust which is trust deed dated 29-1-1936 in the present case, specifically provides that it will be lawful for the trustees to sell or dispose of the trust properties or any of them and to give effectual receipt for purchase money. Thus the instrument of trust in the present case empowers all the trustees jointly to sell or dispose of the trust property and to give effectual receipt for purchase money. In this case Section 48 of the Trust Act will have application which provides that when there are more trustees than one, A all must join in the execution of the trust, except where the instrument of trust otherwise provides. In the case of I.L. Janakirama lyer and others v. P.M. Nilakanta lyer and others AIR 1962 SC 633 the Indian Supreme Court has laid down at page 642 as follows:
(21) Clause 23 has been thus translated by the High Court
`In all the proceedings to be taken in connection with this estate, you three either unanimously or according to the decision of the majority, shall act.'
In the earlier litigation started by Defendants 1 to 6 this clause was thus translated:
`All the steps to be taken in connection with this estate should be according to the unanimous opinion of all the three of you or as decided by the majority.'
The learned trial Judge has made this translation of the clause in the present proceedings: In all the proceedings to be taken in connection with the estate all the three should act either unanimously, or according to the decision of the majority.
The learned Attorney-General has supplied us with this estate, in all proceedings to be taken decision of the majority shall act. We have carefully compared all the translations, and we feel no difficulty in holding that the translation supplied in the earlier litigation is somewhat inaccurate, whereas all the three translations made in the present proceedings substantially agree. Taking the translation supplied by the learned
Attorney-General it is clear that what this clause requires is that the three trustees shall act, and it provides that they shall act according to the decision which may be reached either unanimously or by majority. You three' that is to say the three trustees, is the subject of the predicateshall act'.
And the words between the subject and the predicate indicate how the decision has been reached. Reading the clause as a whole it is difficult to accept the argument that this clause allows two of the three trustees to act without joining the third trustee in the actual action to be taken in the execution of the trust. It is not necessary under the clause that in the matter of executing the trust every decision must be unanimous. The clause recognizes that in some matters decision may be by majority, but nevertheless it requires that once a decision is reached either unanimously or by majority in giving effect to the decision and in taking any given action in the execution of the trust all the three must act. Thus read this clause confirms to the statutory provisions contained in S. 48 of the Indian Trusts Act and is not intended to provide for an exception to the said provisions at all. It is urged that if no departure was intended to be made from the principles laid down in S. 48 the clause need not have been added at all. This argument is wholly inconclusive. There are several other clauses in the trust deed which all bring out provisions corresponding to the relevant provision of the Trusts Act and this argument may apply to the said clause as well. The authors of the trust-while creating the trust, have made elaborate provisions in respect of the several matters concerning the execution of the trust, and the whole scheme of the trust deed is consistent with the operative C1.23 in that it seems to require all the trustees to act together even though the decisions which they seek to give effect to may have been majority decisions and not unanimous decisions. Therefore in our opinion, the Courts below were right in holding that C1.23 like the main provision of S. 48 requires that all the trustees should have joined in the execution of the-sale-deeds in question. That being so. Exhs.B-94 and B-37 which are respectively executed in favour of defendant 14 and defendant 13 are invalid and can pass no title to the alienees on the ground that only two out of the three trustees have executed them (Vide: Man
Mohan Das v. Janki Prasad 72 Ind app. 39 (AIR 1945 PC 23).
In the first cited Judgment of the Madras High Court, the rule laid down was that of acceptance of rent after default by a trustee who had been held out by co-trustees as having authority to receive payments of amount to an acceptance binding on the trustees. In the second case also of Madras High Court the rule laid down was that arrangements between parties to carry out the duties of a trust if conducive to the interest of smooth administration of the affairs of the trust are really in the nature of scheme framed for the management of the trust and will be binding on the parties. Both the cases are distinguishable as in the first place the matter was mainly of receipt of rent by a trustee and there was authority held out by co-trustees of receiving the rent by. him. In the second case there was arrangement scheme of management of Trust. Both the elements are lacking in this case as no authority to sell trust property is held out by co-trustees nor there is any arrangement scheme of management of trust shown. The receipt of rent otherwise is merely a ministerial act as it can also be done by a Rent Collector. Even if the Defendant No. 1(a) is assumed to have signed the agreement also as an attorney of Defendant No. 3 (which assumption in the present case is not available for that the name of Defendant No. 3 as one of the co-trustees is not mentioned in the agreement) still there is no signature of Defendant No. 1(b) in the agreement whose name is otherwise specifically mentioned in the agreement. The agreement mentions about resolution but neither the date of resolution is given nor copy of resolution filed.
The plaintiff had full knowledge that they are dealing in respect of trust property. Prudency required so also the plaintiff ought to have asked for providing him copy of trust deed so as not only to make agreement in accordance with it but also had the hall mark of it being genuine and bona fide. This admittedly was not done and the plaintiff alone is to be blamed for this.
As regards the question of doctrine of indoor management. Even if such doctrine is accepted to be applicable-to a private trust. It may be noted that this argument would have been available to the plaintiff had the agreement been challenged only on the ground of competency of its execution by the trust/trustees. Though, in the earlier part of this judgment it has been clearly held that by force of Section 48 of the Trust Act, all the trustees are required to execute the agreement and a judgment of the Indian Supreme Court is referred, yet in this case the defendant trust/trustee have altogether denied execution of the agreement. Therefore, in my respectful view, the plaintiff's task is more onerous than just of relying upon the doctrine of indoor management. Even if this doctrine is applied to this case, the plaintiff has to show prima facie that the agreement was executed by the trust/trustees and it could have been made in the circumstances of the case.
Indeed there is an admitted document on the record i.e. an Aide Memoire which is attached with a letter dated 20-7-2002 of Mr. M. Naim-ur-Rehman, Barrister. It will be advantageous to reproduce the said letter and Aide Memoire attached to it:
Kamran Khan Esq., 20.7.2002 Chairman, M/s. Tessori Trading Co. (Pvt.) Ltd. Zaibunuissa Street, Karachi.
Dear Mr. Kamran Khan.
RE: AIDE MEMOIRE
I am enclosing herewith a copy of my Aide Memorie, which I had prepared in the middle of February, 2001 and the same may be forwarded to Mr. Jamshed Marker.
The relevant portions are 5, 6, 7, 8, 9,10 and 11 mentioned therein.
This is as already advised to Mr. Ardeshir Cowasjee and Mr. Jamshed Marker in February, 2001.
Yours sincerely, (Sd.) (M. Naim-ur-Rehman)
AIDE MEMOIRE
RE: SALE OF PLOT NO. SB-6 SURVEY NO. 25, SADAR BAZAR, KARACHI
(1) The property belonging to trust in which Mr. Ardeshir Cowasjee and Mr. Jamshed Marker are inter alia, Trustees.
(2) The initial lease expired in 1963 but was renewed and PT-1 Form in this regard was issued.
(3) The property desired to be sold by Mr. Ardeshir Cowasjee and Mr. Jamshed Marker to Mr. Akhtar Khan of Tessori.
(4) No new Sanad was issued after 1963 and after recent contacts with the Commissioner, Karachi none are likely to be issued for the foreseeable future.
(5) According to Mr. Jamshed Marker the Deputy Commissioner South states that he will mutate PT-1 Form to record the change of ownership pursuant to an agreement.
(6) I am informed by Mr. Yakub Kapadia, Advocate that the Deputy Commissioner has issued instructions to the Registrar of Rights and assurances not to register any transactions which would include registration of a Power of Attorney with power to sell from the present owners to the purchaser Mr. Akhtar Khan.
(7) If the PT-1 Form can be mutated in favour of the purchaser Mr. Akhtar Khan of Tessori, then this is the evidence of transfer of ownership of the new purchaser under the Qanun-e-Shahadat, 1984.
(8) Present course in the circumstances is for an agreement of Sale.
(9) Hand over possession.
(10) Agreement of sale on the basis of 10-15% part payment and at the time of mutation 98-99 % of the sale price be given.
(11) An unregistered Power of Attorney may also be issued in favour of the third party to have the property registered in the name of the purchaser as and when sanads are again issued by the land Revenue Department, Government of Sindh.
REQUIREMENTS
(1) Up-to-date property tax receipt.
(2) Approved plan of the construction on the plot.
(3) Proceedings against tenant M/s. Sanaullah.
Learned counsel for the plaintiff frankly conceded that that problem of Sanad is still intact and in terms of Aide Memoire it is not likely to be issued in foreseeable future and that there is embargo imposed by the Deputy Commissioner on registration of transactions including registration of power of attorney with power to sell from present owner to the purchaser Mr. Akhtar Khan. In the face of above state of things prevailing with the property, learned counsel for the plaintiff had no limbs to support the stipulation contained in clause 5 of the agreement which is as follows:
"5. That vendor shall complete the sale by:
(a) Making out a valid marketable subsisting and unencumbered title to the said property to the satisfaction of the Vendee, (b) removing satisfying any objection or claim if received pursuant to Public Notice to be published by the vendee or if otherwise coming to the knowledge of the vendee, (c) by execution and registration of proper conveyance deed and causing the same to be registered in favour of the Vendee or his nominee. The balance sale consideration shall be paid by the Vendee at the time of execution and registration of Conveyance deed."
Learned counsel for the plaintiff found it hard even to support the prayer made in the suit that of directing defendants trust/trustees or on their failure Nazir of the Court to execute and register sale-deed/sanad/ power in favour of the plaintiff.
Faced with above difficulties, learned counsel for the plaintiff raised the plea that in the face of admitted document of Aide Memoire which speaks of negotiation of transaction of sale of said property between the parties, at least there is a case of oral agreement between the parties which can be specifically enforced. As regards this submission, it may first be noted that there is no plea of oral agreement in the plaint. Secondly, the Aide Memoire contains state of deficiencies which are incapable of annulment in the foreseeable future besides some personal view/opinion of Mr. Naim-ur-Rehman to how to over come it. None of the parties as it appear has agreed to what is stated inside Memoire and yet more the plaint does not speak nor it is argued before me as to how the contents of Aide Memoire can be specifically enforced. The relief claimed in the suit is altogether contrary to what is mentioned in the Aide Memoire.
Learned counsel for the plaintiff then came up with the plea that the plaintiff can be granted relief in terms of Order VII, Rule 7, C.P.C. that of acquiring of some interest in the said property and relied upon the case of Bai Dosabai (supra). There is no cavil with the proposition that Order VII, Rule 7, C.P.C. does give power to the Court to mould the relief or extend it if the facts and circumstances of the case so require to meet the ends of justice. It is admitted position on the record that the plaintiff or his father is a tenant of one shop in the said property. Plaintiff has not been able to establish prima facie that there is an agreement to sell the said property in his favour. Then on what basis the acquiring of unspecified nature of interest in the property can be granted is not clear. In order to claim some interest in the said property, plaintiff in the first place has to show that there is some material on the record which gives him right to acquire some interest in the said property. No such material is on the record nor any has been pointed out to me. To me, this argument seems to be nothing but abstract. As regards the authority of the Indian Supreme Court, it may be noted that there was an admitted agreement between the parties and one of the parties was claiming of having interest in the property on the basis of the said agreement, as the case unfolded and on the facts the Court observed that there was an obligation annexed to the ownership of the property not amounting to an interest in the property that is an obligation in the nature of trust and therefore an obligation which may be specifically enforced. I am unable to find nexus of this authority with this case for that the plaintiff is not saying that through material on record, it has made a case of creation of an obligation annexed to the ownership of the property. There is no material nor any has been spelt out before me whereby the plaintiff may have created an obligation annexed to the ownership of the property.
After giving all due consideration to the facts and circumstances of the case and the case-law relied upon by the parties. I find that plaintiff has failed to establish prima facie case and that the balance of inconvenience and irreparable loss is in his favour.
After hearing the learned counsel, by short order dated 19-10-2005 the application was dismissed. Above are the reasons for it.
(Fouzia Fazal) Application dismissed
PLJ 2006 Karachi 232
Present: Muhammad Mujeebullah Siddiqui, J.
Mst. LEELA--Petitioner
versus
Mst. RAZIA GILL and 2 others--Respondents
Constitutional Petition No. S-604 of 2002, decided on 28.11.2005.
Constitution of Pakistan (1973)--
----Art. 199--Sindh Rented Premises Ordinance, (XVII of 1979), S. 15--Constitutional petition--Ejectment of tenant--Determination--Tenant raised plea that she had purchased the premises during her tenancy, thus denied relationship of landlord and tenant--Tenant had filed suit for declaration of title, while landlord filed suit for cancellation of agreement to sell on the basis of which tenant claimed to be the owner of the premises--Rent Controller dismissed ejectment application due to pendency of declaratory suit--Order passed by Rent Controller was maintained by Appellate Court--Suit filed by tenant had been dismissed and the question pertaining to title had been decided by the original Court in favour of landlord, which issue was pending before Appellate Court--Validity--It was not possible to decide the question of relationship of landlord and tenant between the parties, at the most proceedings could be kept in abeyance and the landlord could not be non-suited--High Court set aside the orders passed by Rent Controller and First Appellate Court and case was remanded to Rent Controller--High Court directed the Rent Controller to afford opportunity to both the parties to lead evidence on the point of relationship of landlord and tenant between the parties and if, after giving opportunity to both the parties and recording of evidence--Rent Controller would feel that it was not possible to decide the question pertaining to relationship of landlord and tenant between the parties without decision of Civil Court, the matter might be kept in abeyance till the appeal was finally decided by Appellate Court--Petition was allowed. [Pp. 233, 235 & 236] A, B, C & D
PLD 1991 SC 242; 1991 SCMR 1376; PLD 1985 SC 1 and 1983 SCMR 1064 ref.
Mr. Iqbal Quadri, Advocate for Petitioner.
Mr. M. Akbar Awan, Advocate for Respondents.
Date of hearing: 28.11.2005.
Judgment
This petition is directed against the order dated 14-4-2000, passed by the learned IInd Rent Controller, Karachi South, in Rent Case No. 280/1994 and the judgment dated 11-1-2002 passed by the learned Vth Additional District and Sessions Judge, Karachi, Sought in F.R.A. No. 272/2001, upholding the order passed by the Rent Controller.
Briefly stated the relevant facts are that the petitioner filed ejectment application against the Respondent, No. 1, on the ground of default in payment of rent. The Respondent No. 1 filed written statement taking plea that earlier she was tenant under the petitioner but during continuance of tenancy she purchased the property through a sale agreement and made payment of the entire sale consideration whereafter the petitioner ceased to be tenant and became owner of the property. It was further stated in the written statement that the Respondent No. 1, has filed a suit in Civil Court seeking declaration that she has become lawful owner of the property in pursuance of sale agreement dated 1-6-1987 and that the petitioner has filed a suit seeking cancellation of the sale agreement on the plea that it was forged document.
The learned Rent Controller, thereafter heard the learned Advocates for the parties on the point of maintainability of the rent application and ultimately held that since civil suits were pending in which the question of title in the property was to be determined therefore, the rent application was not maintainable on account of non-existence of relationship of landlord and tenant between the parties. The appeal preferred by the petitioner was dismissed and the finding of the Rent Controller was upheld.
Mr. Iqbal Quadri, learned counsel for the petitioner has submitted that the civil suit filed by the Respondent No. 1, has been dismissed while the civil suit filed by the petitioner seeking cancellation of the sale agreement has been decreed. The Respondent No. 1 filed appeal which was dismissed and in revision before this Court the matter has been remanded to the learned First Appellate Court on the ground that the learned First Appellate Court failed to frame the points for determination as required under Order XLI, Rule 31, C.P.C. Mr. Iqbal Quadri, has further submitted that the petitioner has been condemned unheard and has not been provided opportunity to lead evidence to establish that the relationship of landlord and tenant exists between the parties. He has submitted that in this case it was admitted that there was relationship of landlord and tenant between the parties but a plea was taken that during continuance of tenancy the Respondent No. 1, purchased the property through sale agreement and thereby she became owner of the property. Mr. Iqbal Quadri, has contended that whenever a plea is taken by a person who has admitted himself to be tenant taking plea that during continuance of tenancy he/she became owner, it is incumbent on the Rent Controller to provide opportunity to both the parties to lead their respective evidence and thereafter decide the limited question of relationship of landlord and tenant without giving any finding on the point of title in the property which is exclusively within the domain of Civil Court. In support of his contention he has placed reliance, on the judgment of Hon'ble Supreme Court in the case of Iqbal v. Mst. Rabia Bibi, PLD 1991 SC 242. It has been held by the Hon'ble Supreme Court as follows:
"In some recent judgments this Court has taken the view that in cases like the present one, where the sale agreement or any other transaction relied upon by a tenant is seriously and bona fide disputed by the landlord, the appellant/tenant cannot be allowed to retain the possession during the litigation where he continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation. It has been ruled that in such cases although the tenant has a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a hostile title which is denied by the landlord; but on the well-known bar of estoppel in this behalf, he (the tenant) cannot be permitted to remain the occupation and fight the litigation for long time, even for decades. In this case it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness to both sides, while the tenant is at liberty to prosecute the litigation wherein he should try to establish his claim but it should not be at the cost of landlord/owner. It should be at the cost of himself and he must vacate though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing his title against his own landlord."
On the other hand, Mr. M. Akbar Awan, learned counsel for the Respondent No. 1, has submitted that the Rent Controller has no jurisdiction if there is a dispute between the parties about the title over the suit premises. The question is to be decided by Civil Court. In support of his contention he has placed reliance on the judgment of Hon'ble Supreme Court in the case of Abdul Hameed Naz v. Mst. Razia Begum Awan 1991 SCMR 1376. The Hon'ble Supreme Court has held in this case that where issue regarding relationship of landlord and tenant depended solely and not only incidentally on question of ownership and title to property and it was not possible for Rent Controller to decide the case without deciding the basic question involved regarding title, then it would not be appropriate to evaluate such situation by observing that decision on question of title was only tentative. Rent Controller could not decide question of relationship of landlord and tenant against tenant when landlord had failed to establish his position as landlord beyond reasonable doubt. It was further observed that in such circumstances the proper course for the Rent Controller would be to decide the issue of such relationship against the landlord and advise him to first get his title established before seeking ejectment. The Hon'ble Supreme Court further observed that it has been held in the earlier judgment in the case of Province of Punjab v. Abdul Ghani PLD 1985 SC 1, that there is one exception to Section 116 of the Evidence Act, to the extent that if the denial is during the continuation of tenancy and not after the determination thereof the issue is to be decided in favour of landlord who let the tenant in and not any other person.
Mr. Akbar Awan, has further placed reliance on an earlier, judgment of the Hon'ble Supreme Court in the case of Rehmatuallh v. Ali Ahmed, 1983 SCMR 1064, wherein it has been held that the question of relationship of landlord and tenant is to be decided after affording reasonable opportunity to the tenant and that after complete satisfaction as result of opportunity having been afforded to the parties to satisfy the Controller one way or the other. If the landlord is not able to establish the relationship after affording an opportunity then only the Rent Controller can non-suit the landlord.
I have carefully considered the facts on record and the judgments of the Hon'ble Supreme Court referred to above. I am of the opinion that in this case, the Respondent No. 1 admitted that initially she was the tenant under the petitioner and alleged that by virtue of sale agreement she became owner of the premises. In these circumstances, even if the Rent Controller was of the view that it is not possible to decide the question of relationship of landlord and tenant between the parties at the most the proceeding could be kept in abeyance and the landlord could not be non-suited. In this case, the admitted position is that the suit filed by Respondent No. 1, has been dismissed and the question pertaining to title has been decided by the original Court in favour of the petitioner and the issue is pending before the First Appellate Court.
In the above circumstances, the orders passed by the Respondents Nos. ,2 and 3 are hereby set aside. Case is remanded to the IInd Rent Controller Karachi, South with the direction to afford opportunity to the parties to lead evidence on the point of relationship of landlord and tenant between them.
However, if after giving opportunity to both the parties and receding of evidence in this behalf, the Rent Controller feels that it is not possible to decide the question pertaining to relationship of landlord and tenant between the parties without decision by the Civil Court, the matter may be kept in abeyance till the appeal is finally decided by the District Court. The petition is allowed accordingly. I have been informed that the appeal at the instance of Respondent No. 1, is pending in the Court of First Additional District Judge, Karachi South. The suit at the instance of Respondent No. 1 Mst. Razia Gill, was filed in the year 1993 therefore, the learned District Judge seized of the appeal is directed to dispose of the appeal within three months of receiving the copy of this judgment. The office is directed to send the copy of this judgment to the learned First Additional District Judge, Karachi South, as well, in addition to the Respondents Nos. 2 and 3.
(Rafaqat Ali Sohal) Petition allowed
PLJ 2006 Karachi 236 (DB)
Present: Muhammad Mujeebullah Siddiqui and Khilji Arif Hussain, JJ.
Messrs EMIRATES AIRLINES--Appellant
versus
Dr. Prof. HAROON AHMED and 3 others--Respondents
High Court Appeal No. 90 of 2004, decided on 19.10.2005.
Limitation Act, 1908 (IX of 1908)--
----Ss. 3 & 5--Condonation of delay--Applicability--Exemption under S. 5 of Limitation Act, (IX of 1908) to the party who, for sufficient cause could not approach Court within the time fixed by law, and being an exception clause, same has to be construed liberally--Expression sufficient cause' used in S. 5 of Limitation Act, (IX of 1908) should be given liberal construction so as to advance substantial justice--Such discretion has to be exercised judicially and not arbitrarily--Every suit instituted, appeal preferred and application made after the period of limitation prescribed therefor by the First Schedule of the Act has to be dismissed even if limitation has not been set up as defence--Party seeking indulgence of Court for condonation of delay has to explain satisfactorily each and every day of delay and further that the delay has been caused by the reason beyond his control. [Pp. 238 & 239] A & B
Sindh Civil Courts Rules (O.S.)--
----R. 162--Limitation Act, (IX of 1908), Ss. 5 & 12--Sindh Chief Court Rules, R. 185--High Court appeal--Limitation--Condonation of delay--Matter under consideration before higher authority--Suit for damages and compensation was filed before High Court, in its original Civil Jurisdiction, which was decreed in favour of plaintiff--Judgment and decree against defendant was passed on 3-3-2004, application for certified copy of judgment and decree was filed on 4-4-2004, copies were made and delivered to appellant on 17-4-2004 and appeal was filed on 8-5-2004--Defendant also filed application for condonation of delay alongwith the appeal, on the ground that the matter was under consideration before higher authority--Validity--Judge when signing the decree, under R. 162 of Sindh Civil Court Rules (O.S. ), like R.185 of Sindh Chief Court Rules, wrote below his signature also the date, month and year on which the decree was actually signed by him; accordingly time started to run for the purposes of limitation against the defendant from the date of signing of the decree--Defendant failed to give any explanation, for not filing appeal within the prescribed period of time after receiving certified copy of judgment and decree except that the matter was under consideration before the higher authority of the defendant--Merely because the matter remained under examination before the higher authority, same was not a valid ground for extension of period of limitation--High Court declined to condone the delay in filing of appeal. [P. 240] D
Limitation Act, 1908 (IX of 1908)--
----Art. 156--Civil Procedure Code (V of 1908), O.XX, R. 7--Constitution of Pakistan, 1973, Art. 199--Original Civil Jurisdiction--Art. 156 of Limitation Act prescribes twenty days from the date of decree for an appeal against order/judgment of High Court in exercise of its original Civil Jurisdiction. [P. 240] C
2003 SCMR 83; PLD 2003 SC 724; 2002 SCMR 343; 2001 SCMR 827; 2002 CLD 1528; 2001 YLR 1032 and 2000 CLC 1790 ref. 1981 SCMR 37 rel.
Mr. Mahmud Alam, Advocate for Appellant.
Mr. Akhtar Hussain and Mr. Khalid Rehman, Advocates for Respondents.
Date of hearing: 19.10.2005.
Judgment
Khilji Arif Hussain, J.--This High Court Appeal has been filed against the judgment and decree passed by the learned Single Judge decreeing the suit in the sum of Rs. 2,43,670 towards air fare plus US $17,928 on account of medical treatment and for general damages or non-pecuniary loss on account of physical and mental agonies, humiliation and defamation at US $ 500 per day for 30 days.
Brief facts of the case are that the Respondent No. 1 filed suit for damage and compensation for Rs. 10 million against the appellant and Respondents Nos. 2, 3 and 4. The plaintiff filed the suit, as he had not been allowed boarding by the appellant against confirmed reservation on the tickets issued by the Respondent No. 2. Confirmed air tickets were issued for a journey originating from Karachi on 14th April, 1999 on Emirates Airline to Dubai and from Dubai to further destination on British Airways. On 14.4.1999 when Respondent No. 1 alongwith his son reported at check-in-counter of the appellant for obtaining their boarding cards, they were informed that they have no reservation and on showing computer slips about the confirmation of seats the check-in staff of the appellant changed the stance and informed that since the seats were not re-confirmed 72 hours before the start of the journey they could not be accommodated. Due to refusal of the appellant from boarding Respondent No. 1 and his son they could not avail the appointment with Dr. Earnest Methew fixed on 16-4-1999. The Respondent No. 1 on account of ailment of his son had to obtain alternate appointment from other consultants in USA for immediate relief. As per averments made in the plaint the plaintiff alongwith his wife travelled to USA, incurred heavy expenses in getting the interim treatment before he could see. Dr. Earnest Mathew by subsequent appointment. It is stated that Respondent No. 1 was denied boarding card by the appellant just to accommodate some high officials who wanted to go to see cricket tournament in Sharjah and attend trade festival in Dubai. After recording evidence and hearing the parties, learned Single Judge decreed the suit. Aggrieved by the judgment and decree passed by the learned Single Judge appellant preferred this appeal alongwith the application under Section 5 of the Limitation Act for condonation of delay in filing the appeal.
Heard Mr. Mahmud Alam, learned counsel for the appellant, Mr. Akhtar Hussain, learned counsel for Respondent No. 1, and Mr. Khalid Rehman, learned counsel for the Respondent No. 2.
Mr. Mahmud Alam, learned counsel for the appellant argued in support of his application under Section 5 of the Limitation Act that delay in filing of the appeal has been caused due to reason beyond the control of the appellant. It is contended by the learned Advocate for the appellant that the Advocate who was appearing in Suit No. 530/2000 did not inform the appellant immediately after passing of the judgment and decree dated 3.3.2004 and he applied for the certified copy on 4-4-2004 which were made ready on 17-4-2004. It is further contended by the learned counsel for the appellant that the appellant received copy of judgment and decree after the judgment was reported in daily "Dawn" dated 13-4-2004 when for the first time appellant came to know about the judgment and decree passed by this Court.
Learned counsel for the appellant in support of his contention relied upon the cases of Muhammad Bashir and another v. Province of Punjab 2003 SCMR 83; Managing Director Sui Sourhern Gas Company v. Ghulam Abbas and others PLD 2003 SC 724; Haji Hussain Haji Dawood and others v. M. Y. Khrati 2002 SCMR 343; Muhammad Shafi v. Muhammad Hussain 2001 SCMR 827; CGM (Compagine General Maritime) v. Hussain Akbar 2002 CLD 1528 (Karachi), Town Committee Kot Abdul Malik District Sheikhupura v. Province of Punjab 2001 YLR 1032 (Lahore) and Jinnah Sports Club (Regd.) v. Pakistan Cricket Board 2000 CLC 1790 (Lahore).
On the other hand, Mr. Akhtar Hussain learned counsel for Respondent No. 1 opposed the application and argued that no plausible reason has been given for condonation of delay in filing the appeal. The application under Section 5 of Limitation Act is not supported by the personal affidavit of the learned Advocate for the appellant.
Learned Advocate for appellant pointed out from the judgment that. the learned Single Judge has granted US $10,000 towards medical expenses whereas in fact respondent had claimed US $1,000.
We have taken into consideration arguments advanced by the learned Advocate for the respective parties and also gone through the case-law relied upon by them. By Section 5 of the Limitation Act legislature gives exemption to the party who for sufficient cause could not approach Court within the time fixed by law, and being an exception clause, the same has to construe liberally. The expression "sufficient cause" used in Section 5 of the Limitation Act should be given liberal construction so as to advance substantial justice. However, discretion given has to be exercised judicially and not arbitrarily. Section 3 of the Limitation Act provides that subject to Sections 4 to 25 every suit instituted, appeal preferred and application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed even if limitation has not been set up as defence. It is by now settled that the party who is seeking indulgence of Court for condonation of delay has to explain satisfactorily each and every day of delay and further that the delay has been caused by the reason beyond his control.
Keeping in view the above principle of law we will now examine whether appellant has explained satisfactory delay in filing the appeal, and appeal could not be preferred within the period of limitation for the reason beyond the control of appellant.
The judgment and decree in the suit was passed on 3-3-2004. The appellant filed application for certified copy of judgment and decree dated 4.4.2004. Copies of judgment and decree were made and delivered to the appellant on 17-4-2004 and the appeal has been filed on 8-5-2004.
The appellant tried to shift the entire burden on the shoulder of the Advocate who was representing the appellant before the learned Single Judge. Affidavit of the learned Advocate for the appellant who was appearing before the learned Single Judge has not been filed that the delay has been caused due to act of the Advocate. Be that as it may, it is an admitted fact that the copy of the judgment and decree was delivered on 17-4-2004 and same has been received by the appellant on 19-4-2004. Sufficient time was available for filing the appeal within the period of limitation when appellant received the copy, but appellant chooses not to file the appeal within the prescribed period of time. No explanation has been given why the appellant has not preferred the appeal immediately after receiving certified copy of judgment and decree particularly when sufficient time for filing the appeal was available at that time. The decree in the instant case was drawn on 16.4.2004 accordingly time starts to run from the date of preparation other decree and till the copy delivered has to be excluded, while computing the period for filing the appeal. The appellant after receiving certified copy on 1.4.2004 had to file the appeal within 20 days from the said date, which expired on 5-5-2005, whereas the appellant had filed the appeal on 8-5-2005. Article 156 of the Limitation Act prescribes twenty days from the date of decree for an appeal against the order/judgment of Single Judge of High Court in exercise of its original Civil Jurisdiction. Rule 7 of Order XX of Civil Procedure Code specifically deals with the "date of decree" and lays down that it shall bear the date and the day on which the judgment was pronounced. Order XLI, Rule 1 required that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader, and such memorandum while presented to the Court or to such officer as it appoints in this behalf shall be accompanied by a copy of the decree appealed and of the judgment unless the Appellate Court dispenses therewith on which it is founded. Rule 162 of Sindh Civil Court Rules (O.S. ), like Rule 185 Sindh Chief Court Rules provides that the Judge when signing the decree shall write below his signature also the date, month and year on which the decree is actually signed by him. Accordingly time started to run for the purposes of limitation against the appellant from the date of signing of the decree. The appellant has failed to give any explanation, what to say plausible, for not filing appeal within the prescribed period of time after receiving certified copy of judgment and decree except that the matter was under consideration before the higher authority of the appellant. It is by now settled that merely because matter remained under examination before the higher authority is not a valid ground for extension of period of limitation. If any case-law is required, it is available in the case of Commissioner of Income Tax v. Rais Pir Ahmad Khan 1981 SCMR 37.
For the foregoing reasons application under Section 5 of the Limitation Act is dismissed and consequently appeal is also dismissed as barred by time.
Before parting we would like to observe that the appellant's Advocate pointed out certain typographical error in the judgment which can be rectified, if so advised, by filing application under Section 152, C.P.C.
These are the reasons of our short order dated 19-10-2005 by which we have dismissed the appeal alongwith the listed application.
(Rafaqat Ali Sohal) Appeal dismissed
PLJ 2006 Karachi 241
Present: Khilji Arif Hussain, J.
MUHAMMAD MATLOOB and 10 others--Plaintiffs
versus
JAMSHED K. MARKER and 2 others--Defendants
Suit No. 1048 of 2005, decided on 10.5.2006.
Contract Act, 1872 (IX of 1872)--
----S. 10--Specific Relief Act (I of 1877), S. 12--Valid contract--Essential conditions--To constitute a valid contract between parties one of the essential conditions is that consensus ad idem must exist between the parties with regard to all the terms of contract and in case of any ambiguity, the same can adversely reflect about existence of the contract. [P. 244] A & B
Contract Act, 1872 (IX of 1872)--
----Ss. 7 & 10--Converting proposal into contract--In order to convert a proposal with binding contract, acceptance of proposal must be absolute and unqualified--Existence of a consensus ad idem with regard to all fundamental terms of the contract must be shown--Whether an agreement is a completed bargain or merely provisional agreement depends on the intention of parties as deducible from language used while negotiations take a contract shape and whether the intention to have formed document drawn up postponed the formation of contract depends on the circumstances of each case. [P. 244] C
Contract Act, 1872 (IX of 1872)--
----S. 10--Valid contract--Receipt, whether a valid contract--Determination--Receipt can be termed as a contract if on going through the receipt, four components to form an agreement can be spelt out without any ambiguity i.e. identification of seller and purchaser sale consideration amount, identification of property to be sold, and parties to agreement to sell property in question are at consensus ad idem. [P. 244] D
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Civil Procedure Code, (V of 1908), O.XXXIX, Rr. 1 & 2--Existence of agreement--Interim injunction, grant of--Plaintiff relied upon a receipt acknowledging payment of cheques to defendants--Contention of plaintiff was that the receipt was a valid contract as it was signed by the defendants and it was made out from the receipt that the amount was paid in consideration of sale of the disputed property--Defendant raised plea that the cheques were not got encashed and were subject to maturity of the proposal--Validity--Receipt by itself provided that cheques would be encashed only on reaching agreement of sale--At the time of execution of receipt, parties were not inclined to sell the property but wanted to enter into an agreement at subsequent date was established--No binding contract between the parties thus existed--Plaintiff, therefore, failed to establish prima facie case in his favour for the grant of injunction--Question whether parties reached a concluding contract or not depended upon the fact whether the parties were of one mind and all material terms were finalized between them and they intended that the matter was closed and concluded between them--Sindh High Court declined to grant interim injunction and application was dismissed.
[Pp. 246 & 247] E, F & G
1989 MLD 1317 and PLD 1956 (WP) Kar. 521 disting. PLD 1986 Kar, 358; PLD 1956 Kar. 521; PLD 1976 Kar. 458; PLD 2006 Kar. 108; 2002 CLD 218; AIR 1956 Allahabad 725; 1996 CLC 1758 and 1953 AELR 966 ref.
Mr. Ghulam Ali Khokhar, Advocate for Plaintiffs.
Mr. Bilal Shaukat, Advocate for Defendants.
Date of hearing: 10.5.2006.
Order
For the purposes of disposing of the application under Order XXXIX, Rules 1 and 2, C.P.C. brief facts of the case are that on 30-9-2004 Attorney of the Plaintiff alongwith the Legal Advisor Mr. Muhammad Younis Memon, Advocate met with Defendants Nos. 1 and 2, both Trustees of F.N.E. Dinshaw Trust to purchase immovable Trust Property Bearing No. 25, SB-6 admeasuring 867 and 3/4 square yards situated at Zaib-un-Nisa Street Saddar, Karachi in consideration of Rs. 85,000,000 (Rupees Eighty Five Million), and handed over 11 undated cheques of Rs. 80,000,000 (Rupees Eighty Million only). Out of these 11 cheques five cheques were issued in the name of Defendant No. 1 amounting to Rs. 40,000,000 and six cheques of Rs. 40,000,000 in the name of Defendant No. 2 and they wrote receipt which according to the plaintiff is an agreement of sale in respect of the property in question. It is alleged that after entering into the agreement of sale on 30.9.2004 defendants have to complete the sale transaction by executing and getting deed of conveyance registered but in spite of many requests made to them by the plaintiff's attorney and their Legal Adviser the defendants are avoiding to perform their part of obligation whereas the plaintiffs are ready and willing to pay Rs. 5,000,000 being the balance amount of sale consideration. It is alleged that Defendant No. 3 is the third trustee of F.N.E. Dinshaw Trust, and Defendant No. 2 is her constituted attorney.
Defendants filed counter-affidavit to the listed-application and denied that they agreed to sell the property in question to the plaintiffs while raising preliminary objection about the maintainability of the suit. It was further stated that the parties being unable to finalize terms of sale therefore no agreement of sale has been executed and the Note/Receipt Annexure A filed alongwith the plaint cannot be treated as an agreement between the parties.
Heard Mr. Ghulam Ali Khokhar, learned counsel for the plaintiffs, and Mr. Bilal Shaukat, learned counsel for the defendants.
Mr. Ghulam Ali Khokhar, learned counsel for the plaintiff, vehemently argued that the receipt Annexure A filed alongwith the plaint is an agreement between the parties by which defendants agreed to sell the property in question in favour of the plaintiff in total sale consideration of Rs. 85,000,000. Learned counsel for the plaintiff argued that description of the property has been given in the receipt and defendants acknowledged receipt of Rs. 80,000,000, which, in fact, is an agreement of sale between the parties as the said receipt (Annexure A) is clearly a receipt of payment in which names of purchaser and seller are mentioned alongwith the description of the properties and their price and merely because formal agreement of sale could not be entered into between the parties, will not disentitle the plaintiff to ask for performance of the agreement. The receipt (Annexure A) by itself is an agreement of sale between the parties. In support of his contention the learned counsel relied upon the case Mst. Najma Rana v. S. M. Maroof (1989 MLD 1317), Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan (PLD 1956 (WP) Kar 521), Mobinul Haq Siddiqi and another v. Mrs. Hajra Farooq and 3 others (PLD 1986 Kar, 358), Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan (PLD 1956 Kar. 521) and Province of West Pakistan v. Gammon's Pakistan Ltd. Karachi (PLD 1976 Kar. 458).
Mr. Bilal Shaukat, learned counsel for the defendant, in reply to the arguments argued that the receipt dated 30-9-2004 cannot be termed as an agreement between the parties as the parties had not reached to a concluding contract at any point of time. The said receipt at the most can be termed as an understanding between the parties to enter into an agreement of sale, if so agreed. Learned counsel further argued that undated cheques were handed over in Trust to defendants by the plaintiffs, were not encashed by the defendants, which also clearly demonstrate that the parties had not entered into an agreement of sale of the property in question. Learned counsel further argued that all the Trustees are not parties to receipt in question which according to the plaintiff, is an agreement of sale is not binding upon the defendants as Section 48 of the Trust Act required that all the Trustees must act jointly. In support of his contention, he relied upon the case of Muhammad Kamran Khan v. F.N.E. Dinshaw Trust (PLD 2006 Kar. 108), Al-Huda, Hotels and Tourism Co. and others v. Paktel Limited and others (2002 CLD 218), Seth Banarsi Dass v. Cane Commissioner UP and another (AIR 1956 Allahabad 725), Khayaban-e-Iqbal (Pvt.) Ltd. and others v. Mustafa Haji Muhammad (1996 CLC 1758), Riley and another v. Troll (1953 AELR 966).
I have taken into consideration respective arguments advanced by the learned counsel for the parties and also gone through the record. In terms of Section 10 of the Contract Act provided that all agreements are contracts if they are made by the free consent of the parties competent to contract, for the lawful consideration and with a lawful object and are not hereby expressly declared to be void. To constitute a valid contract between the parties one of the essential condition is that consensus ad idem must exist between the parties with regard to all the terms of the contract and in case of any ambiguity, the same can adversely reflect about the existence of the contract.
In order to convert a proposal with binding contract the acceptance of a proposal must be absolute and unqualified there must be shown to exist a consensus ad idem with regard to all the fundamental terms of the contract, where an agreement is a completed bargain or merely provisional agreement depends on the intention of the parties as deducible from the language used while negotiations take a contract shape and whether the intention to have formed document drawn up postponed the formation of the contract depends on the circumstances of each case.
Keeping in view this principle of law now I would like to examine whether receipt Annexure A can be termed as an agreement between the parties to sell the property in question. Before proceeding further I would like to make it clear that a receipt can be termed as a contract if on going through the said receipt, four components to form an agreement can be spelt out without any ambiguity i.e. (i) identification of seller and purchaser, (ii) sale consideration amount, (iii) identification of property to be sold, and (iv) that parties to agreement to sell the property in question are at consensus ad idem.
The receipt Annexure A-l which according to the plaintiff is an agreement of sale between the parties provided that Defendants Nos. 1 and 2 received 11 undated cheques out of which Defendant No. 1 received five cheques for total amount of Rs. 40,000,000 and Defendant No. 2 received six cheques for total amount of Rs. 40,000,000. The receipt further provided that:
"the cheques shall be retained in Trust of the Defendant Nos. 1 and 2 and shall only be encashed on reaching the agreement of sale of the property 867 and .3/4 square yards."
From the above receipt Annexure A it is clear that the plaintiff handed over cheques "in trust" to Defendants Nos. 1 and 2 with specific understanding that the same will be encashed on reaching the agreement of sale. This phrase in the receipt that "cheques will be retained in trust to be encashed on reaching the agreement of sale" clearly established that the parties at the time of execution of the receipt wanted to do something more to enter into an agreement of sale till such time defendants undertook that they will not encash the cheque, which fact was further established from the conduct of the parties that on the date of execution of said receipt i.e. 30.9.2004 till dated cheques were not encashed by the defendants and after about four months of issuance of receipt and handing over undated cheques for the first time plaintiff's attorney addressed a letter to Defendant No. 1, called upon him to complete the bargain in respect of the property in question. The defendant alongwith his written statement placed on record letter dated 1-10-2004 addressed to Mr. Muhammad Younis Memon, Advocate, Legal Adviser of the defendant that if for any reason whatsoever the Trustees of F.N. Dinshaw Trust cannot reach an agreement of sale for the building to you or to any of your nominees the cheque will be returned uncashed. Legal Adviser of the plaintiff filed his personal affidavit that such letter was not received by him.
Mr. Ghulam Ali Khokhar, learned counsel for the plaintiffs, relied upon the case of Mst. Najma Rana (supra), where the learned Judge of this Court accepted "receipt" as an agreement, but facts of the said case are distinguishable. In the case of Mst. Najma Rana (supra), the seller admitted that he had received a sum of Rs. 10,000 as part consideration of sale, but since purchase did not abide by the commitments in the receipt and asked for adjustment of sale consideration towards rent on the basis of these facts learned Judge vacated the order of status quo. In the case of Mrs. Parveen Begum (supra), it has been held that for the purpose of deciding the question whether or not a temporary injunction should be issued, the Court will not go into nice question, whether in a suit for specific performance, the defendant's son, who had negotiated the transaction of sale of plot of land with plaintiff, who had received the earnest money by cheque which defendant had actually encashed have authority or not. It was held that it is difficult to draw a line between the scope of authority conferred on Raja Mahboob Asghar and on the basis of these facts held that plaintiff made out a prima facie case.
The facts of the case are distinguishable as in the instant case cheques received by the Defendants Nos. 1 and 2 have not been encashed by the defendants towards sale consideration whereas in the case of Mrs. Parveen Begum (supra) (sic).
In the case of PIDC (supra), learned Judge relied upon the case of Hatzfeltit-Wildenburg Alexander. (1912) 1 Ch. 284, 288, it was held that:
"It appears to be well-settled by the authorities that if the documents or letter relied on as constituting a contract contemplated the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognize the contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored."
Be that as it may, since receipt by itself provided that cheques will be encashed only on reaching agreement of sale clearly established that at the time of execution of the receipt parties were not intended to sell the property but would like to enter into the agreement at subsequent date.
In the case of Al-Huda Hotels and Tourism Co. and others v. Paktel Limited and others (supra), 2002 CLD 218, identical question came under consideration before this Court. Brief facts of the said case were that the parties entered into negotiations for sale and the transfer of the shareholdings owned by one of the defendants. It is claimed that the oral agreement was reduced into writing through a letter and accordingly a letter dated 10-12-1999 was sent by which the terms of agreement for confirmation which was returned by Defendant No. 2 with certain handmade changes whereafter Defendant No. 2 accepted the offer letter through its covering letter dated 15-12-1999. The letter contained a condition on its top, which read as "subject to contract" it is claimed that the use of the phrase "subject to contract" did not mean that the agreement has not been finalized.
After discussing various case-laws learned Single Judge held that it is not possible at this stage to hold that there is binding contract between the parties and the plaintiff therefore failed to establish prima facie case in its favour for grant of injunction.
The question whether parties reached a concluding contract or not depend upon the fact where the parties were of one mind and all the material terms have been finalized between them and they intended that the matter was closed and concluded between them.
Mr. Bilal Shaukat, learned counsel for the defendant, in support of his argument stated that the agreement of sale was not concluded between the parties and relied upon the case of Raingold v. Bromley, (1931) 2 Chancery Division 307, where it has been held:
"That there was no binding contract to grant a lease, as the expression "subject to terms of the lease" in the letter of December 9, 1930, meant "subject to the terms to be contained in the lease executed by the lessor".
Apart from the above, it also appears that receipt Annexure A-1 has been executed only by Defendants Nos. 1 and 2 whereas there are three Trustees, and in terms of Section 48 of the Trust Act, they had to act jointly. The contention of Mr. Ghulam Ali Khokhar learned counsel for the plaintiff that Defendant No. 2 is father of Defendant No. 3 and also an attorney has no force as Defendant No. 2 has not signed the receipt in question for and on behalf of Defendant No. 3 to bind her with the contents of the said receipt.
I also have my reservations about the maintainability of the suit as framed. Instead of filing the suit against the Trust and/or making the Trust as one of the defendants and or issuing cheques of sale consideration in the name of Trust, the plaintiff has filed the suit against the Trustees however this question can be decided at an appropriate time, as none of the parties addressed on it. The plaintiff failed to make out any case for grant of injunction.
For the foregoing reasons listed application has no merit, which is accordingly dismissed. These are the reasons of my short order dated 20.4.2006.
(Fouzia Fazal) Application dismissed
PLJ 2006 Karachi 247 (DB)
Present: Sabihuddin Ahmed, C.J. and Mrs. Qaiser Iqbal, J.
FARRUKH NIAZ --Petitioner
versus
FEDERAL GOVERNMENT OF PAKISTAN--Respondent
C.P. No. D-251 of 2006, decided on 19.5.2006.
Constitution of Pakistan, 1973--
----Arts. 199 & 15--National Accountability Ordinance, (XXXV of 1999), S. 18--Constitutional petition--Delay in conclusion of inquiry--Exit Control List--Petitioner raised plea that his name could not remain on Exit Control List for indefinite period--Validity--There were certain allegations against petitioner in which the inquiry conducted could not be concluded despite lapse of more than two years--No reason was assigned by the authorities, for placing name of the petitioner on Exit Control List, nor notice or intimation was served upon him--Placement of the name of petitioner on Exit Control List was not justified and tantamounts to restrict rights of his liberty--High Court in exercise of Constitutional jurisdiction, directed the authorities to remove the name of petitioner from Exit Control List--Petition was allowed. [P. 248] A, B & C
PLD 2006 Kar. 193; PLD 1997 Lah. 617 and PLD 1999 Kar. 177 rel.
Mr. Shoukat Hayat, Advocate for Petitioner.
Mr. S. Mehmood A. Rizvi, Standing Counsel for Respondent.
Order
Mrs. Qaiser Iqbal, J.--Learned counsel appearing for the petitioner has contended that the name of the petitioner was placed on the Exit Control List on 2-6-2004, on account of inquiry conducted by National Accountability Bureau for accumulating assets beyond known source of income. According to the learned counsel the petitioner had repeatedly approached the respondent for redress but no order for recalling his name was passed.
Learned counsel has asserted that the inquiry before the National Accountability Bureau against the petitioner is pending adjudication since June, 2004, could not be a conceivable ground for placing fetters upon his right of movement. The petitioner having not been redressed has resorted to file the petition against the respondents, the comments filed ex facie revealed that the grounds of placement of the name of the petitioner in the Exit Control List were not divulged out, simultaneously it is stressed that the petitioner should have made representation setting out the grounds, on which he sought the review of the order. Petitioner was bound to be heard before passing any of the order by the Federal Government to prohibit him from leaving Pakistan, unless it was considered in the public interest not to specify the ground. In the instant case, the respondent had failed to specify ground for placing fetters upon the right of movement of the petitioner. There are certain allegations against the petitioner, the inquiry conducted, could not be concluded despite of the lapse of more than 2 years, therefore, no reason was assigned by respondent, for placing his name on E.C.L. nor notice or intimation was served upon him. In support of the above contention reliance is placed on the case of Ashfaq Yousuf Tola v. Federation of Pakistan (PLD 2006 Kar. 193; Wajid Shamsul Hassan v. Federation of Pakistan PLD 1997 Lah. 617 and Saleem Akhtar v. Federation of Pakistan PLD 1999 Kar. 177.
We are, therefore, of the view that the placement of the name of the petitioner on Exit Control List was not justified, tantamounts to restrict rights of his liberty, therefore, it is directed that his name should be removed from the Exit Control List forthwith. Petition is allowed accordingly.
These are the reasons for the short order dated 14-5-2006, whereby the petition was allowed, in above terms.
(Fouzia Fazal) Petition allowed
PLJ 2006 Karachi 249 (DB)
Present: Mushir Alam and Azizullah M. Memon, JJ.
MUHAMMAD HANIF KHAN--Petitioner
versus
PROVINCE OF SINDH through SECRETARY, LAND UTILIZATION DEPARTMENT, KARACHI and 8 others--Respondents
C.P. No. 1229 of 2005, decided on 11.5.2006.
Constitution of Pakistan, 1973--
----Arts. 23 & 24--Land Acquisition Act (I of 1894), Ss. 4, 6 & 45--Notification of land acquisition--Purpose--Service of notice on landowner/affected person--No person could be deprived of his property save in accordance with law--Purpose of publication of notification in the Official Gazette though was to inform affected person and public-at-large of proposed acquisition for public purpose, but same would meet only extrinsic, but not intrinsic requirement of law--Natural justice would require service of notice on landowner/affected person alongwith publication of notification in Official Gazette--Principles--The right to property is valuable right guaranteed under Arts. 23 and 24 of the Constitution of Pakistan. No person could be deprived of his property save in accordance with law. Land Acquisition Act, (I of 1894) is one of such law under which a person can be deprived of his personal property, provided of course, it is acquired or sought to be acquired for "public purpose" and only in manner as provided therein. Action as to acquisition and/or "public purpose" is justifiable. Publication of the Notification in the Official Gazettes, though sine qua non for assumption of jurisdiction under the Land Acquisition Act, (I of 1894) it is first step towards acquisition. Purpose of publication of Gazette Notification is to inform person affected and the public at large of the proposed acquisition of land for public purpose. [Pp. 251 & 252] A & B
Land Acquisition Act, 1894 (I of 1894)--
----Ss. 4, 6 & 45--Constitution of Pakistan, 1973, Arts. 23 & 24--Notification of land acquisition--Essentials--Purpose--Where the recorded owner of the land, proposed to be acquired, is ascertained and is known, then notice to such person is necessary, publication of Notification in Official Gazette meets only the extrinsic and not the intrinsic requirement of law--It is common knowledge that publication and circulation of Official Gazette is limited and usually confined to meet the statutory requirement of law--It has come to notice that at times not many persons are aware of the important and valuable information that a Gazette Notification tends to communicate and dispense--Limited access and circulation of Official Gazette Notification at times defeat the principle of natural justice and frustrate the very object of law--In order to comply with the requirement of principle of natural justice, at the time of publication and issuance of Notification u/Ss. 4 and 6 of Land Acquisition Act, 1894, notice u/S. 45 thereof may also be served on the recorded owners or on the affected person. [P. 252] D
Land Acquisition Act, 1894 (10 of 1894)--
----Ss. 4, 6 & 45--Constitution of Pakistan, 1973, Arts. 23 & 24--Object of--The object of Land Acquisition Act, 1894 is not to deprive a person from his property right without due process of law. One of the essential intrinsic requirements of principle of natural justice is to give proper and meaningful opportunity to the affected person to challenge and object to the proposed or likely acquisition of land under Land Acquiition Act. [P. 252] E
Principles of Natural Justice--
----No person could be condemned unheard and divested of property without due course of law--Principles of natural justice would be deemed to be imbedded and enshrined in every statute, unless expressly excluded. [P. 252] C
Mr. Farrukh Nasim, Advocate for Petitioner.
Mr. Saalim Salam Ansari, Mr. Mukhtiar Ahmed Kober and Mr. Irfan G. Ali, Advocates for Respondents Nos. 8 and 9.
Mr. Manzoor Ahmed, Advocate for CDGK.
Ch. Rafiq Rajveri, A.A.-G.
Date of hearing: 11.5.2006.
Judgment
Mushir Alam, J.--Petitioner has impugned the notification dated 23-2-2005 under Section 4 of the Land Acquisition Act, inviting objections as to acquisition of Petitioner's land. Main thrust of the arguments of the learned counsel for the Petitioner appears to be that the petitioner is the owner of the subject property, right was perfected pursuant to the orders passed in legal proceeding in Suit No. 1201 of 1998.
It is stated that earlier attempt of the Respondents Nos. 8 and 9 to acquire the private property of the petitioner was successfully defeated in Suit No. 1201 of 1998. Claim of the petitioner was sustained in H.C.A. No. 88 of 2001, copy of the judgment is available at page 291.
It is urged by the learned counsel that, after being unsuccessful in attaining their designs to deprive the Petitioner from the. subject property, Respondents Nos. 8 and 9 have used armed forces as a cloak and conduit to deprive the petitioner of his property. According to him, impugned notification is motivated aimed at personal aggrandizement of officers of N.L.C. It is urged that, in terms of the notification, where under N.L.C. was established, it is clearly specified that the N.L.C. could acquire the land through specified mode namely rent, purchase or lease, as reflected in the orders of the Court available at page 207 at page 221. It is stated that the land is being acquired in a dubious manner as no notice was issued to the Petitioner, impugned notification was got published in a surreptitious manner in gazette. According to the learned counsel such clandestine mode of acquiring the property is violative and prejudicial to the fundamental rights to property guaranteed in terms of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973. It was urged that, rights as guaranteed under the constitution are jealously guarded by the Court. It is further urged that sufficient land in the vicinity and area around the Petitioner's land is available and resting with Provincial Government, which could have been easily acquired. It is urged that some of the officers of the N.L.C. have made it a matter of ego, and at all cost want to deprive the Petitioner of his land. In support of his contention he has placed reliance on a case reported as Abdul Ghani and another v. Province of Balochistan and 2 others (PLD 1992 Quetta 63), the Court did not approve the land acquisition proceedings without service of Notice on the person affected. In the another case reported as Mst. Surayya Aziz v. Collector, Lahore District, Lahore and 2 others (2003 CLC 1510), when the acquisition of land under M.L.O. was successfully defeated, subsequent resort to acquire land under the Land Acquisition Act, was held to be motivated under the garb of public interest.
Dr. Farough, further points out that the limitation of 30 days to file objection had long lapsed as the Petitioner was not served any notice nor was aware of the impugned notification.
Mr. Saalim Salam Ansari, learned counsel appearing for the Respondents Nos. 8 and 9 contended that no personal notice on the petitioner is required, the notification has been issued in the due compliance of Section 4 of the Land Acquisition Act. When the attention of the learned counsel was drawn to Section 45 Land Acquisition Act, he conceded that no personal notice was served. He however, without contesting the matter further, on instructions submits that the Petitioner may file his objection within 30 days from today and controversy as to vires of notification and mala fide could be raised and examined by the authority under the Land Acquisition Act.
Mr. Manzoor Ahmed learned counsel for CDGK is also of the similar view.
Right to property is valuable right guaranteed under Articles 23 and 24 of the Constitution of Pakistan. No person could be deprived of his property save in accordance with law. Land Acquisition Act, 1894 is one of such law under which a person could be deprived of his personal property, provided of course, it is acquired or sought to be acquired "for public purpose" and only in manner as provided therein. Action as to acquisition and or "public purpose" is justifiable. Publication of the Notification in the official gazettes, though sine qua non for assumption of jurisdiction under the Land Acquisition Act, it is first step towards acquisition. Purpose of publication of gazette Notification is to inform person affected and the public at large for the proposed acquisition of land for public purpose. It is now a settled principle of law that no person could be condemned unheard, and no person could be divested of property without due course of law, principles of natural justice is deemed to be imbedded and enshrined in every statute, unless expressly excluded. Where the recorded owner of the land, proposed to be acquired, is ascertained and is known, then notice to such person is necessary, publication of Notification in official Gazette meets only the extrinsic and not the intrinsic requirement of law. It is common knowledge that publication and circulation of official Gazette is but limited and usually confined to meet the statutory requirement of law. It has come to notice that, at times not many persons are aware of the important and valuable information that a Gazette Notification tends to communicate and dispense. Limited access and circulation of official Gazette notification at times defeat the principle of natural justice and frustrate the very object of law. In order to comply with the requirement of principle of natural justice, at the time of publication and issuance of Notification under Section 4 and or 6 ibid notice under Section 45 of the Land Acquisition Act may also be served on the recorded owners or on the affected person.
Object of Land Acquisition Act, is not to deprive a person from his property-right without due process of law. One of the essential intrinsic requirements of principle of natural justice is to give proper and meaningful opportunity to the affected person to challenge and object to the proposed or likely acquisition of land under the Act of 1894.
Since the Respondents have conceded to such right of the Petitioner, we do not deem it necessary to engage ourselves into controversy as raised in the Petition as to vires of impugned Notification; therefore, the Petition is being disposed off in the following terms:--
(1) Petitioner shall file his objection to the impugned notification dated 23-2-2005 within 30 days from the date of passing of this order.
(2) Petitioner shall be entitled to challenge the impugned notification and may raise all objections as raised in this petition or any other objections as may be available to him under the law.
(3) The authority concerned shall pass appropriate speaking orders dealing with all objections as may be raised by the Petitioner, after providing opportunity of being heard to the Petitioner, personally or through his counsel/representative strictly in accordance with law.
(4) The authority shall decide the objections preferably not later than 60 days from the date of filing of the objections.
(5) Till passing of the order and or final determination of the rights of the Petitioner's subject to appeal, as may be permissible under the law, the Respondents shall not take any coercive action against the Petitioner nor disturb his possession.
(6) Petitioner shall also not create any third party interest nor shall change the complexion of the property till final determination of controversy in Land Acquisition Act.
Petition in terms of the above disposed of with no order as to costs.
(Fouzia Fazal) Petition disposed of
PLJ 2006 Karachi 253 (DB)
Present: Mushir Alam and Syed Zawwar Hussain Jaffery, JJ.
QUAID-E-AZAM'S MAZAR, MANAGEMENT BOARD, KARACHI--Petitioner
versus
PROVINCE OF SINDH through SECRETARY, HOUSING AND TOWN PLANNING KARACHI and others--Respondents
C.P. No. D-953 of 2004, decided on 21.12.2005.
Constitution of Pakistan (1973)--
----Art. 4--Qauid-i-Azam's Mazar (Protection and Maintenance) Ordinance, 1971, S. 8--Recommendation of authority--State functionaries--Principles--Desire or recommendation howsoever solemn, devout or laudable may be or for that matter, it having flown from the authority how highsoever it may be, cannot be equated with law or legal command enforceable under the law--Under the scheme of the Constitution, source of all power, authority and duties exercisable by the State and its executive functionaries emanates from the Constitution itself or the law that may be framed thereunder by the competent Legislature--Such power can only be exercised within defined under the Constitution or statutory instrument--No person can be prevented under Art. 4 of the Constitution, from or be hindered in doing that which is not prohibited by law--State and its executive functionaries have no inherent powers to permit or otherwise prohibit doing of that, which law does not prohibit. [Pp. 259 & 260] A & B
Notification--
----Issuance of notification--Scope--Authority to issue notification emanates from Constitution or statutory instrument enacted by competent Legislature--Issuance of notification, a legislative function, is to be exercised by the delegatee under mandate of law--No plenary authority can be invoked nor is available to issue a notification, prohibiting doing of that which is not prohibited by law. [P. 260] C
Quaid-i-Azam's Mazar (Protection and Maintenance) Ordinance, 1971 (XXVII of 1971)--
----Ss. 2, 8 & Preamble--For the protection, maintenance, prevention of acts derogatory to the dignity and sanctity of Quaid's Mazar and its peripheral area, Quaid-i-Azam's Mazar (Protection and Maintenance) Ordinance (XXVII of 1971), was promulgated--Mazar was declared to be historical monument of national importance and its peripheral area is Federally administered area--Board constituted under Quaid-i-Azam's Mazar (Protection and Maintenance) Ordinance (XXVII of 1971), is a Management and maintenance Board and not a regulatory authority--Board exercises administrative and management authority and enjoys control over the area as defined under S. 2 of Quaid-i-Azam's Mazar (Protection and Maintenance) Ordinance (XXVII of 1971), and not beyond--Board cannot act or interfere in the affairs of Province or on any area beyond the territorial bounds as defined under S. 2 of Quaid-i-Azam's Mazar (Protection and Maintenance) Ordinance, (XXVII of 1971)--Any authority acting under Quaid-i-Azam's Mazar (Protection and Maintenance) Ordinance, 1971, is required to act within the framework of the Ordinance. [P. 260] D
Sindh Buildings Control Ordinance, 1979 (V of 1979)--
----S. 21-A--Quaid-i-Azam's Mazar (Protection and Maintenance) Ordinance (XXVII of 1971), Ss. 2 & 8--Sindh Building and Town Planning Regulation, 2005--Regul. 25-1-10-2--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Control of buildings around Quaid-i-Azam's Mazar--Provincial Government issued a notification on the basis of directive of President of Pakistan, whereby no building could be constructed within the radius of 3/4 miles of the Mazar, which would be 91 feet Mean Sea Level--Grievance of Quaid-i-Azam's Mazar Management Board was that authorities had allowed building around the Mazar, which were raised beyond permissible height--Board sought direction for demolishing all such buildings and structures--Validity--Board or any other authority deriving power under the provisions of Quaid-i-Azam's Mazar (Protection and Maintenance) Ordinance, (XXVII of 1971), could not issue any directive beyond the defined territorial bounds and scope of the Ordinance--Even the notification issued by Provincial Government was without lawful authority--Curb on height of a building above the podium level of 91 feet (27.72 m) Mean Sea Level, within 3/4 mile (1.2 km) radius of Quaid-i-Azam's Mazar, could only be enforced from the date of enforcement of Sindh Buildings and Town Planning Regulations--Karachi Building Control Authority could not approve any plan after 4-4-2005, beyond the height limits set down in Regul. 25 of Sindh Building and Town Planning Regulations--Petition was disposed of accordingly by the High Court. [P. 261] E & F
2000 YLR 2655 rel. PLD 1988 SC 416; PLD 1987 Kar. 296 and PLD 1989 SC 26 ref.
Mr. Naim-ur-Rehman, Advocate for Petitioner.
Mr. Abbas Ali, A.A.-G. for Respondent No. 1.
Mr. Manzoor Ahmed and Mr. Faisal Siddiqui, Advocates for Respondents Nos. 2, 3 and 4.
Mr. Khalid Anwer and Mr. Afser Ali Abedi, Advocates for Respondents Nos. 5 and 6.
Dates of hearing: 14 and 16.12.2005.
Judgment
Mushir Alam, J.--Petitioner, Quaid-i-Azam's Mazar Management Board (Board) through instant petition has impugned buildings constructed above 91 feet Mean Sea Level (M.S.L.) within the radius of 3/4 miles of Quaid-i-Azam's Mazar with consequential direction to the Respondents Nos. 1 to 4 to demolish all structures and buildings in excess of permissible limit, being derogatory to the sanctity and dignity of the Mazar.
It was contended by Mr. Naim-ur-Rehman, learned counsel for the Petitioner that, in order to maintain sanctity of Quaid-i-Azam's Mazar "the Quaid-i-Azam's Mazar (Protection and Maintenance) Ordinance, 1971 (Q.M.O., 1971) was promulgated on 14-10-1971, which inter alia, provided that, sanctity of the Mazar and peripheral area shall be maintained. To carry out the objective of the Q.M.O., 1971 under Section 4 thereof, Petitioners Board was constituted.
On the directive of the then President of Pakistan, the Board convened a special meeting on 29-1-1979. The members of the Board, so also various other authorities including the then Deputy Martial Law Administrator Zone C, attended the meeting. In the special meeting a resolution in following terms was passed:
"The Deputy Martial Law Administrator emphasized that bye-laws be made by K.M.C./K.D.A. to regulate the height of all structure within three-fourth of a mile from the Mazar. The Board agreed with the suggestion and the K.D.A./K.M.C. representatives promised to comply forthwith."
According to Mr. Naimur Rehman, above amounts to order and directives issued by the Deputy Martial Law Administrator and in view of the Article 270-A of the Constitution of Pakistan, 1973, is binding as law, he relies on PLD 1988 Supreme Court 416. In furtherance to such directions, special committee on the sanctity of Quaid-i-Azam's Mazar in its meeting dated 10 August, 1991 resolved and recommend amendment in the Karachi Building Control Authority Ordinance, 1979 to impose height restriction. The committee also proposed amendment in Section 8 of the Q.M.O., 1971 defining action that may be termed as violative or prejudicial to the sanctity or dignity of the Quaid-i-Azam's Mazar.
Mr. Naimur Rehman, learned counsel contended that the instructions of the President are binding on Province under Article 145 of the Constitution of Pakistan, 1973. It was therefore, urged that, since the special meeting convened on the directive of the President of Pakistan, had passed a resolution, therefore, the Provincial Government in furtherance thereto issued a notification dated 10th September, 1991 imposing height restriction. The Notification is available at page 49 which, inter alia, reads as follows:
"No. SOI(KDA)6-108/90.-The Government of Sindh is pleased to reaffirm and confirm the decision of Quaid-i-Azam's Mazar Management Board dated 29-1-1979 to the effect that, no building will be constructed above the podium level of Quaid-i-Azam's Mazar i.e. 91 feet above Mean Sea Level (M.S. L.) within a radius of six (6) furlongs of the Quaid-i-Azam's Mazar."
It was contended that in number of Constitution Petitions this Court enforced such height restrictions.
It was vehemently argued that large number of buildings have been constructed around Quad-i-Azam's Mazar in violation of above directives as detailed in para. 17 of the petition. It is alleged that, 40 buildings were constructed before 1979. 54 buildings were completed after 1979 and 55 buildings were also raised in violation of the height restriction as noted above. He vehemently urged that, all such buildings are liable to be demolished and in future no building beyond permissible limit be allowed to be raised nor plan be approved.
Mr. Faisal Siddiqui, learned counsel for KBCA, contended that, the restriction of height limit around Mazar was first time imposed under Regulation No. 25.10.1 of Karachi Building and Town Planning Regulation, 2002 (KB&TP Regulations, 2002) as notified on 4-4-2002 and not before. He contended that the resolution of the Board referred to by Mr. Naimur Rehman is not the law declared. It is, at the best, an opinion or suggestion to the authority concerned. According to him, though the recommendation was there but the law was not amended as recommended by the Special Committee. It was further urged that, Regulation No. 25 of KB&TP Regulations, 2002 is being implemented and followed in letter and spirit. No building plan beyond the permissible limit have been approved since the date of enforcement of KB&TP Regulations, 2002. It was further contended that the Regulations are prospective in nature end cannot be enforced retrospectively.
Mr. Khalid Anwar, learned counsel appearing for the private Respondents Nos. 5 and 6 argued that the Q.A.O., 1971 was promulgated for the management and maintenance of the Quaid-i-Azam's Mazar and its peripheral area as defined in Section 2 thereof. According to him, the Board, constituted thereunder, cannot exercise jurisdiction or authority beyond the area specified therein. He urged that, neither the President nor the Board could issue any directive under the Q.M.O., 1971 of the nature sought to be enforced through instant petition. It was further contended that the Board constituted under the Ordinance, 1971 is a management board and not a regulatory authority, and it cannot issue any directives of the regulatory nature in respect of the area beyond its territorial bounds.
It was further contended that Notification dated 10-1-1991 issued by the Government of Sindh is without any authority, it has no legal sanction. According to him, impugned construction was raised almost 18 years before this petition was filed. No case is made out and therefore, the petition is liable to be dismissed.
Exercising right of rebuttal, Mr. Naimur Rehman urged that directives of Federal Government and the Notification have force of law. In support of his contention, reliance was placed on Muhammad Bachal Memon v. Government of Sindh PLD 1987 Karachi 296, Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 Supreme Court 26.
We have heard the arguments and perused the record.
Only controversy that needs to be addressed in this petition appears to be the law that is applicable as regard height restriction within a radius of 3/4 mile from the Quaid's Mazar.
Adverting to the stance taken by Mr. Naimur Rehman, that first time, height restriction could be read into the directive of Deputy Martial Law Administrator Zone 'C' as contained in the resolution passed by the Special Committee in the following terms:
"The Deputy Martial Law Administrator emphasized that bye-laws be made by K.M.C./K.D.A. to regulate the height of all structures within three-fourth of a mile from the Mazar. The Board agreed with the suggestion and the K.D.A./K.M.C. representatives promised to comply forthwith."
15 Mr. Naimur Rehman, on the strength of case of Benazir Bhutto v. Federation of Pakistan (PLD 1988 Supreme Court 416 at 498, 507, 509 and 511) whereby lending constitutional validity to the President's Order, Martial Law Regulations or Martial Law Orders made during the specified date.
Cases relied upon by Mr. Naimur Rehman, do not support his case. In the case of Muhammad Bachal Memon (PLD 1987 Karachi 296) apex Court, at page 315 in para. 2 while examining Article 270A, held that, "its Clause 1 gives validity to all laws including Martial Law Orders, and Regulations made during 5-7-1977 to 30-12-1985 and provides that same shall not be called in question in any Court on any ground whatsoever notwithstanding any judgment of any Court or any thing contained in the Constitution. In paragraph 5 of same page and in paragraph 2 at page 317 reiterated dicta it laid in the case of Ziaur Rehman 1973 Supreme Court 49, "that in spite of the bar provided in the said clause the jurisdiction of the superior to scrutinize action of military authority was not completely barred in respect of those actions, which were mala fide, without jurisdiction or corum-non-judice". In the case of Ghulam Mustafa Khar PLD 1989 SC 26 at page 54 para. 30 apex Court reaffirmed that "this Article does not take away the jurisdiction of High Court from reviewing acts, action or proceedings which suffered from defect of jurisdiction or were corum non judice or were mala fide. For this purpose it is unnecessary to draw a distinction between malice in fact and malice in law".
Resolution as reproduced cannot be read either as President's Order, or Martial Law Regulation or Martial Law Order, within the contemplation of Article 270-A of the Constitution of Pakistan. At the best it could be labeled as a wish or recommendation of the Special Committee convened at the desire of the President of Pakistan, that did not come true. Avowed wish or recommendation how solemn, devout or laudable it may be or merely on the strength that it had flown from the highest authority, cannot be enforced as a command of law unless translated into law by the appropriate legislature.
Adverting to seemingly strong bit of reliance on the Notification issued by the Government of Sindh dated 10th September, 1991. Mr. Naimur Rehman vainly contended that, pursuant to directives of Chief Martial Law Administrator, Government of Sindh reinforced decision recorded in the minutes dated 29-1-1979 through a Notification dated 10th September, 1991 (page 49 of the court file). Whereby, height restriction on the building within the specified vicinity of Mazar was imposed. The Notification dated 10-9-1991 reads as under:
"NO. SOI(KDA) 6-108/90.--The Government of Sindh is pleased to reaffirm and confirm the decision of Quaid-e-Azam's Mazar Management Board dated 29-1-1979 to the effect that no building will be constructed above the podium level of Quaid-e-Azam's Mazar i.e. 91 feet above Mean Sea Level (M.S. L.) within a radius of six (6) furlongs of the Quaid-e-Azam's Mazar."
Learned counsel when confronted as to under what mandate of Constitution or law, the notification was issued. Mr, Naimur Rehman urged that, it was pursuant to the directions of C.M.L.A. referred to above and in furtherance to the directive of the President of Pakistan pursuant to Section 8 of the Q.M.O., 1971, in obedience of the constitutional duty the Provincial Government had issued the subject Notification. He urged that directives of the President of Pakistan in terms of Article 145 of the Constitution, 1973 are binding on the Provincial Government, which the Provincial Government is obliged to follow. He further extracted support from Section 8 of the Q.A.M. Ordinance, 1971 which, inter alia, provides that "no person shall do any act or behave in any manner which is or tends to be derogatory to the sanctity and dignity of the Quaid-i-Azam's Mazar". According to him, the directive of the President of Pakistan was in light the Section 8 ibid. When he was required to point out any directive of the President, our attention was drawn to extract of the Minutes of the Meeting of Quaid-i-Azam Memorial Fund Board dated 29-1-1979. Wherein it was noted that "on the directive of the President a special meeting of the Quaid-I-Azam Memorial Fund Board presided by the Chairman, Mr. Fida Muhammad Khan, Minister for Housing and Works to consider the development of the area around the Mazar called the peripheral area at Karachi.
It may be observed that, such meeting only resolved to amend the K.B.C.A. Ordinance 1979 thereby, providing height restriction within specified are of 3/4 radius of Mazar. It further recommended substitution of Section 8 of the Q.A.M. Ordinance, 1971 thereby articulating acts that may be violative of the sanctity and dignity of the Mazar. As observed) above, desire or recommendation howsoever solemn, devout or laudable may be or for that matter, it having flown from the authority how highsoever it may be, cannot be equated with law or legal command enforceable under the law. Under the scheme of 1973 Constitution source of all power, authority and duties exercisable by the State and its executive functionaries emanates from Constitution itself or the law that may be framed thereunder by the competent legislature. Such power, authority or jurisdiction could only be exercised within parameters defined under the Constitution or statutory instrument. Article 4 of the Constitution of 1973, mandates that, no person could be prevented from or be hindered in doing that which is not prohibited by law. State and its executive functionaries have no inherent powers to permit or otherwise prohibit doing of that, which law does not prohibit. (See also Mehran Security Services (Pvt.) Ltd. v. Pakistan and others (2000 YLR 2655).
Authority to issue notification emanates from Constitution or Statutory instrument enacted by the competent legislature. Notification of the Provincial Government dated 10-9-1991 as reproduced in para. 18 above, admittedly has not been issued under any legislative instrument. Issuance of Notification, a legislative function, is to be exercised by the delegate under mandate of law, no plenary authority could be invoked nor are available to issue a `Notification', whereby prohibit doing of that which is not prohibited by law. We are clear in our mind that the Notification sought to be enforced, has not been issued under any statutory law cannot be enforced as command of law.
21-A. On examination of the Scheme of the
Q.M.O., 1971 Authority, as may be notified by the Federal Government, is responsible to maintain and manage Mazar' and itsperipheral area'. Section 2 of the Q.M.O., 1971, defines the peripheral area to mean the land measuring 71 acres or thereabouts situated outside the grill of boundary wall and detailed in the plan set out in the schedule. The Quaid-i-Azam's Mazar was declared to be over plot of land and structure measuring 61 acres or thereabouts surrounded by grilled boundary wall.
It may be noted that the Q.M.O., 1971 was promulgated for the protection and maintenance of the Quaid's Mazar and its peripheral area, as detailed in the schedule appended to the Q.M.O., 1971 and for the prevention of the acts derogatory to the dignity and sanctity thereof. The Mazar was declared to be historical monument of National importance. The Mazar and its peripheral area under the Q.M.O., 1971 are the federally administered area. The Board, constituted thereunder is a management and maintenance Board, it is not a regulatory authority. The Board exercises administrative and management authority and enjoys control over the area as defined under Section 2 thereof, and not beyond. It cannot act or interfere in the affairs of the Province or on any area beyond the territorial bound as defined under Section 2 ibid. Any authority acting under the Q.M.O; 1971 is required to act within the framework of the Q.M.O., 1971. Even if the directives of the President of Pakistan are presumed to be under Section 8 ibid as suggested by Mr. Naimur Rehman, then too, such directive, if any, could only be read and be enforceable, within the bounds as set down under the Q.M.O., 1971 and not beyond.
Mr. Naimur Rehman therefore, contends that, the recommendation of the Board, pursuant to directives of the President, to the Provincial Government to amend the law to restrict the height of the building within a radius of 3/4 mile around Quaid's Mazar are of binding nature. As noted above the Board or any other authority deriving power under the Q.M.O., 1971 could not issue any directive beyond the defined territorial bound and scope of Q.M.O., 1971. Even the Notification dated 10th September, 1991 issued by the Provincial Government as noted above, was without lawful authority. At the relevant time, there was no law that empowered or authorized the Provincial Government to regulate such height restriction. Even, the Federal Government, as is apparent in the Minutes of Meeting dated 10th August, 1991 adopted such position. In para-14 of such minutes, (at page 35 of the Petition) Mr. G.A. Jehangir, Secretary Environment Affairs stated that Q.M.B. has no legal authority. The Sindh Government said it would issue a notification, but in the last one year no such thing has been done. The Q.M.B. is banking on the Sindh Government". In para-19 (at page 37) it was noted that "the building on the provincial land is with the permission of the Provincial Government. This is not even a concurrent subject, it would be against the Constitution, if the Federal Government intervenes or issues a Notification. He was of the opinion that no ordinance is necessary, it can be done by issuing of a building regulations, order for restricting the construction of building". The meeting only recommended the amendment in the law.
It seems that under Section 21-A of the Sindh Building Control Ordinance, 1979 Karachi Building Town Planning Regulations, 2002 were enforced on 4-4-2005 imposing height restriction. Regulation 25-1-10 reads as follows:
25-1-10 Height Restriction of the Building
25-1-10.1 The restricted flying gap and safety zone as prescribed by the Civil Aviation Authority and P.A.F. shall be taken into consideration while determining the height of the building.
25-1-10.2: The height of the building shall not be above the podium level of 91 feet (27.72 m) M.S. L. within 3/4 mile (1.2 Km) radius of Quaid-e-Azam Mausoleum.
It could thus be seen that, curb on height of a building, above the podium level of 91 feet (27.72 m) M.S. L. within 3/4 mile (1.2 K.m) radius of Quaid-e-Azam Mazar, could only be enforced from the date of enforcement of S. B. & T.P. Regulations, 2002. Therefore, after 4-4-2005, K.B.C.A. cannot approve any Building Plan beyond the height limits set down in Regulation 25 as reproduced above.
Above are the reasons for the short orders that was passed on 16.12.2005, which reads as follows:--
"For the reasons to follow the Petition is disposed off, alongwith all the pending applications, in the following terms:
(1) Height restriction of a building above podium level of Quaid-e-Azam's Mazar i.e. 91 feet (27.72 m) above Mean Sea Level ("MSL") within 3/4 mile (1.2 km) radius of Quaid-e-Azam's Mazar become enforceable from the date of Notification of Karachi Building Town Planning Regulations ("KBTPR 2002") with effect from 4/4/2002.
(2) Approval of building plan, if any, after 4-4-2002 in violation of Regulation 25-1-19.2 of KBTPR 2002 is illegal and cannot be compounded or regularized under the amnesty scheme as in force.
(3) K.B.C.A. are duty bound and shall take appropriate action forthwith, in accordance with law, for demolition of any construction raised beyond the permissible limit after 4/4/2002.
(4) K.B.C.A. is directed to place on record details of the building plans that have been approved regarding any construction within the radius of 3/4 miles of Quaid-e-Azam's Mazar after 4.4.2002 within four weeks from today with advance copy to the Petitioner.
(Fouzia Fazal) Order accordingly
PLJ 2006 Karachi 262
Present: Nadeem Azhar Siddiqui, J.
Messrs BAHRIA FOUNDATION, KARACHI--Plaintiff
versus
ABDUL ALEEM BUTT--Defendant
Civil Suit No. 1110 of 2001, decided on 13.6.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, Rr. 2 & 3--Suit for recovery on the basis of negotiable instrument--Leave to defend the suit, non-availing of--Effect--If defendant has failed to obtain leave to defend the suit, Court is required to apply its mind to the facts and documents, placed on record before passing order notwithstanding the fact that no person has appeared before it to oppose such order or the person who wanted to oppose was not allowed to oppose because he failed to fulfil the requirement of law. [Pp. 263, 264 & 265] A, B & C
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXVII, R. 2--Stamp Act, (II of 1899)--S. 11--Suit for recovery on the basis of negotiable instrument--Promissory note written on stamp paper--Defendant assailed promissory note on the ground that it was not written on a paper containing adhesive stamp as required under Section 11 of Stamp Act, (II of 1899)--Validity--Provisions of S. 11 of Stamp Act, were directory and permissive in nature and were not mandatory--Promissory note could be written on a paper having adhesive stamps and could also be written on a stamp paper--Only because the promissory note was not written on a paper having adhesive stamp did not lose its utility as promissory note--Promissory note was not necessary to be affixed with adhesive stamp--Promissory note written on stamp paper was as good as written on paper containing adhesive stamps. [Pp. 266 & 267] D & E
2000 CLC 759 and 1988 CLC 2397 distinguished. PLD 1987 Kar. 76; 1991 CLC 164; AIR 1978 Madras 412 and AIR 1968 Rajasthan 45 rel.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, Rr. 2 & 3--Suit for recovery on the basis of promissory note--Leave to defend the suit--Defendant was granted leave to defend the suit subject to furnishing of surety bond--Despite extension in time, defendant failed to furnish any surety as directed by the Court--Effect--Plaintiff, while producing promissory note and acknowledgment of debt and undertaking of repayment had proved, that the promissory note was executed against consideration--Presumption was also in favour of negotiable instrument that the same was made and drawn against consideration--No rebuttal to such fact, as the defendant, in spite of getting opportunity to defend the case, had failed to file any defence--Plaintiff proved that the defendant had executed a promissory note and had failed to repay the amount mentioned in it--Suit was decreed in circumstances. [Pp. 267 & 268] F & G
1996 SCMR 1530 and PLD 2005 SC 322 ref. PLD 1995 SC 362 rel.
Mr. Yasin Azad, Advocate for Plaintiff.
Choudhry Abdul Rasheed, Advocate for Defendant.
Date of hearing: 1.6.2006.
Judgment
This is a suit for recovery of Rs. 5,050,000 under Order XXXVII Civil Procedure Code. The facts necessary for the disposal of the suit are that the defendant was appointed as Special Technical and Sale Advisor on January 12, 1998. The plaintiff during the course of employment of the defendant has from time to time provided a sum of Rs. 5,450,000 to him. The defendant supplied accessories comprising 817 Mobile Antennae, 120 Base Antennae and 65 power Supplied to Punjab Police at his risk and cost, which were rejected by Punjab Police. The defendant undertook to sell the said accessories to prospective buyers at this own risk and to pay the proceeds of sale to the plaintiff against the aforesaid debit of Rs. 5,050,000. It is further stated in the plaint that after receiving the aforesaid amount the defendant remained absent form his duties from April 1, 1998. The defendant on June 13, 1998 executed a Promissory Note in favour of plaintiff acknowledging his liabilities in the sum of Rs. 5,050,000 and also executed an acknowledgment on stamp paper and undertook to repay his liabilities on or before August, 12, 1998. The services of the defendant was terminated on June 17, 1998. The plaintiff lodged F.I.R. against, the defendant and the defendant filed civil suits against the plaintiff.
The summons under summary chapter were served upon the defendant, who vide C.M.A. No. 6629 of 2001 applied for leave to defend the suit unconditionally. After hearing, vide order dated 30-3-2004 conditional leave to defend the suit subject to furnishing surety was allowed to the defendant. The defendant instead of furnishing surety filed C.M.A. No. 2537 of 2004 seeking review of order dated 30-3-2004. The review application was disposed of vide order dated 17-5-2004 as not pressed and two weeks time was allowed to the defendant to furnish security. In spite of extension of time surety was not furnished and the matter was fixed for arguments/final disposal.
Mr. Yasin Azad, learned counsel for the plaintiff has submitted that the suit is based on negotiable instrument and the same is not disputed by the defendant. He further submits that the defendant has confirmed his liabilities by executing acknowledgment of debt and undertaking of repayment, which is also an undisputed document. He also refers to Section 118 of Negotiable Instruments Act and has submitted that presumption is in favour that all the negotiable instruments were made or drawn for consideration. His further contention is that since the defendant has failed to obtain leave to defend the suit the contents of the plaint shall be deemed to be admitted and the plaintiff is entitled to a decree without further proceedings.
The learned counsel for the plaintiff relied upon the following reported cases:--
(1) Naeem Iqbal v. Mst. Zarina 1996 SCMR page 1530.
(2) Haji Muhammad Siddique v. Rana Muhammad Sarwar PLD 2005 SC page 3223.
The learned counsel for the defendant Choudhary Abdul Rasheed has submitted that the suit has been filed on the basis of a document which is not a promissory note as the same is written on a paper having no adhesive stamps and is hit by Section 11 of Stamp Act. He further submits that in view of Section 35 of the Stamp Act the document not properly stamped is inadmissible in evidence and the judgment and decree under Order XXXVII, C.P.C. cannot be passed. He further submits that the alleged Promissory Note at the best can be treated as Bond and the suit has to be proceeded as a long cause suit. He relied upon the following reported cases:--
(1) Muhammad Akram v Khuda Bux 2000 CLC page 759.
(2) Farid Akhtar Hadi v. Muhammad Latif Qazi 1988 CLC page 2397.
In rebuttal Mr. Yasin Azad, learned counsel for the plaintiff has submitted that since the defendant fails to obtain leave to defend the suit, the contention raised by him cannot be considered. He further submits that affixing of adhesive stamp is not mandatory requirement of law and the Promissory Note was properly written on a proper stamp paper and is admissible in evidence. He relied upon the following reported cases:--
(1) Muhammad Sharif v. Muhammad Hashim Paracha and another PLD 1987 Karachi page 76.
(2) Habib Bank Limited v. Chaudhry Cloth House 1991 CLC page 164.
(3) P. Moorthy v. A.R. Kothandaraman AIR 1978 Madras page 412.
(4) Somdatta v. Abdul Rashid AIR 1968 Rejasthan page 45.
I have heard the learned counsel for the parties and perused the record.
No-doubt the defendant has failed to obtain leave to defend the suit. However, the Court is required to apply its mind to the facts and documents before passing any order or judgment notwithstanding the factum that no person has appeared before it to oppose such an order or that the person, who wanted to oppose, was not allowed to oppose because he failed to fulfil requirement of law. The contention of Mr. Yasin Azad, Advocate is that the contention raised by the defendant cannot be considered has no force.
The learned counsel for the defendant has challenged the Promissory Note on the ground that it has not been written on a paper containing adhesive stamp and referred to Section 11 of the Stamp Act in support of his contention. Section 11 of Stamp Act provides use of adhesive stamps, the same reads as under:--
"11. Use of adhesive stamps.--The following instruments may be stamped with adhesive stamps, namely:--
(a) instruments chargeable with the duty of one anna [or half an anna], except parts of bills of exchange payable otherwise than on demand and drawn in sets;
(b) bills of exchange and promissory notes drawn or made out of (Pakistan);
(c) entry as an Advocate, wakil or attorney on the roll of a High Court;
(d) notarial acts; and
(e) transfers by endorsement of shares in any incorporated company or other body corporate."
From bare reading of the above provisions, it is clear that the provisions are directory and permissive in nature and are not mandatory. The Promissory Note can be written on a paper having adhesive stamps and can also be written on a stamp paper and only because Promissory Note was not written on a paper having adhesive stamp does not lose its utility as Promissory Note. In the reported case of Muhammad Sharif v. Muhammad Hashim Paracha PLD 1987 Karachi page 76 the learned Single Bench of this Court has held as under:
"Mr. Kanwar Mukhtar Ahmad, the learned counsel for the defendant, has specifically referred to Section 11 and contended that according to this provision of law promissory note executed or made out of Pakistan can be stamped with adhesive stamp, but other promissory notes made in Pakistan cannot be stamped with adhesive stamp. The provision of Section 11 is directory and permissive as the words used are that the following instruments `may' be stamped with adhesive stamp. It does not prohibit nor impose restriction that promissory notes of any other value cannot be stamped with adhesive stamp. This reasoning finds support from rule 13 read with Article 49 as amended by the Sindh Finance Ordinance VI of 1982 which permit fixation of adhesive stamp on promissory note even in cases where amount exceeds Rs. 2,50,000."
In another reported case of Habib Bank Limited v. Chaudhry Cloth House 1991 CLC page 164 the learned Single Bench of this Court has held as under:
"The expression used in rule 13 of the Rules is `may'. The rule is merely a permissive one, permitting the use of adhesive stamp on promissory notes payable on demand when the amount in any other case is rupees ten. The rule does not lay down that such promissory note shall be stamped with adhesive stamp of the requisite value. The result is that a promissory note in any other case can be written on a paper having an impressed stamp or it can be stamped with special adhesive stamps of the requisite value. In my view a promissory note can be stamped either with special adhesive stamps or adhesive stamps or engraved on a stamp paper of proper value."
The judgment reported in case of Muhammad Akram v. Khuda Bux 2000 CLC page 759 dealt with a situation where document affixed with adhesive stamps were not properly cancelled and was rendered inadmissible in evidence and is not applicable to the present case.
The other reported case of Farid Akhtar Hadi v. Muhammad Latif Qazi 1988 CLC page 2397 was dealt with a case of grant of leave on the ground that the document on the basis of which the suit was instituted was not a promissory note, but was a bond, and as such, the suit was not maintainable and leave to defend was granted, which was challenged in the revision.
The Indian views expressed in the above mentioned reported cases are that in view of word `may' used in Section 11 and Rule 14 the promissory note of any value can always be written on impressed stamp paper and can be stamped with adhesive stamps.
In view of the above reported judgment, it is clear that it is not necessary that the Promissory Note must be affixed with adhesive stamp and a Promissory Note written on a stamp paper is as good as written on a paper containing adhesive stamps.
As far as Section 35 of the Stamp Act is concerned, the same shall only be pressed into service when an instrument not duly stamped is produced in evidence. In this case since I have already held that the promissory note is properly stamped. Section 35 is not applicable.
Since the suit has been filed under summary chapter of the Civil Procedure Code, the Order XXXVII sub-rule (2) of rule 2 provides that where the defendant fails to appear or obtain leave to defend or fulfil the conditions on which the leave was granted, the contents of the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. The plaintiff while producing the promissory note and acknowledgment of debt and undertaking of repayment has proved that the promissory note was executed against consideration. The presumption is also in favour of the negotiable instrument that the same was made and drawn against consideration. There is no rebuttal to the above facts, as the defendant, in spite of getting opportunity to defend the case, has failed to file any defence.
In the reported case of Haji Ali Khan and Company v. Allied Bank of Pakistan Limited PLD 1995 Supreme Court page 362 the Honourable Supreme Court has held as under:
"It may also be noticed that sub-rule (2) of Rule 2 of the above Order envisages that if a suit is filed in terms of sub-rule (1), the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend. It further contemplates that in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree in terms of sub-clauses (a), (b) and (c) provided in aforesaid sub-rule (2). Whereas, sub-rule (3) thereof lays down that a decree passed under the above rule may be executed forthwith."
In the same judgment the Honourable Supreme Court after considering number of reported cases has held as under:
"The ratio decidendi of the above-referred cases seems to be that if a defendant fails to appear or fails to obtain leave to defend in response to a summons served in Form No. 4 provided in Appendix B to the C.P.C. or fails to fulfil the condition on which leave was granted or where the Court refuses to grant leave, the Court is to pass a decree. It may further be observed that in sub-rule (2) of rule 2, C.P.C., it has been provided that if a defendant fails to appear or defaults in obtaining leave, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree, but no such consequences are provided for in Rule 3 of the above Order in a case where the Court refuses to grant leave or the defendant fails to fulfil the condition on which leave was granted. In our view, notwithstanding the above omission in Rule 3, the effect of refusal of the Court to grant leave to failure on the part of the defendant to comply with the condition of the leave, will be the same i.e. the defendant shall not be entitled to defend the suit on any ground and the Court would pass a decree in favour of the plaintiff."
In view of the above, the plaintiff has proved that the defendant has executed a promissory note and has failed to repay the amount mentioned in the promissory note. I have, therefore, no option but to decree the suit of the plaintiff in the sum of Rs. 5,050,000 with interest at the rate of 6% from the date of the suit till realization of the amount. The defendant is also liable to pay the costs of the suit to the plaintiff. The office is directed to prepare the decree in the above terms.
(Rafaqat Ali Sohal) Suit decreed
PLJ 2006 Karachi 269 (DB)
Present: Muhammad Mujeebullah Siddiqui and Faisal Arab, JJ.
GAHI alias GADA HUSSAIN and others--Petitioners
versus
SHAMAN and 7 others--Respondents
Const.P. No. 140 of 2006, decided on 24.5.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 47 & O.XXIII, R. 3--Constitution of Pakistan, (1973), Art. 199--West Pakistan Land Revenue Act (XVII of 1967), S. 42--Constitutional petition--Compromise decree--Execution--Grievance of the petitioners--Petitioners had approached concerned revenue department for the mutation in the record of rights but they refused the mutation and therefore, the act of revenue department refusing to mutate the entry in the record of rights in the name of decree holders in accordance with the compromise decree was illegal, mala fide and without lawful authority--Validity--Held: If the decree stopped short with declaring the rights and obligations of the parties relating to the property forming the basis of the claim sought to be enforced, it was a decree declaratory in nature--Compromise decree, had settled the terms and conditions of compromise and after specifying the survey number and areas, which was to be held by each party, it had been agreed that after passing of decree the record shall be prepared accordingly and Mukhtiarkar of the District was a party to the compromise decree--When there was a specific condition in the compromise and the compromise decree had been passed in pursuance of the terms and conditions agreed between the parties containing the condition that the record shall be prepared accordingly, it was not a decree declaratory in nature simpliciter and therefore, if Mukhtiarkar being a party to the compromise decree had refused to act according to the compromise, the decree holders ought to have approached Civil Court for the execution of the decree--If there was no dispute about the title of the land, in that case the Revenue Authorities had no jurisdiction to refuse the mutation in accordance with a decree of Civil Court on the ground that the suit was barred by time or decree had become barred by time or the decree passed by the Civil Court was not in accordance with the law--If, however, the decree was not capable of execution for the reason that it was between the parties who had no right in law to enter into compromise in respect of the properties, for the reason that they were not owners of the properties, the Revenue Authorities were justified in not mutating the record depriving the persons, who were not party to the decree, of their valuable rights and were shown as owners in the record of rights--Such ' questions could be decided by the Civil Court and particularly the point that the persons, in whose names the lands were mutated in the record of rights, were bound by the compromise 'decree being successors--in--interest of the parties to the compromise--All such questions could not be decided in the Constitutional petition by the High Court and therefore, the petitioners may pursue a remedy through Civil Court seeking clarifications on all such points as well as execution of decree--Constitutional petition was disposed of. [Pp. 272 & 273] A & B
PLD 1973 Kar. 686; 1992 CLC 125 and 1972 SCMR 322 ref.
Mr. Moohanlal K. Makhijani, Advocate for Petitioners.
Mr. Muhammad Bachal Tonyo, Addl. A.-G. Sindh alongwith Mr. Muhammad Hanif Pitafi, Mukhtiarkar, Land Revenue, Taluka Bakrani.
Date of hearing: 24.5.2006.
Judgment
Muhammad Mujeebullah Siddiqui, J.--The grievance of the Petitioners is that they approached the Respondents Nos. 6 and 7 for the mutation in the record of rights according to compromise decree in First class Suit No. 60 of 1995, but they have refused the mutation and therefore, it may be declared that the act of Respondent No. 6, Mukhtiarkar, refusing to mutate the entry in the record of rights in the names of the petitioners/decree holders in accordance with the compromise decree is illegal, mala fide and without lawful authority and that the Respondents Nos. 6 and 7 be directed to mutate the record in the name of petitioners/ decree holders in accordance with the compromise decree.
The Respondent No. 6, Mukhtiarkar, has filed the parawise comments, stating therein that Respondent No. 7, District Officer (Revenue), Larkana sent a letter dated 18-2-2006 to him with the directions to go through the contents of the compromise decree passed in First Class Suit No. 60 of 1995 and taken further necessary action in accordance with law. It is further stated that the report of Tapedar was called, wherein details of the lands and names of Khatedars were given. It was stated that there are several survey numbers shown in the compromise decree in the name of parties to the decree but in the record of rights those survey numbers are not mutated in the names of such persons. The Mukhtiarkar has further stated that he has himself gone through the record and has verified the contents of report of Tapedar. He has stated that the following survey numbers, which are mentioned in the compromise decree do not belong to the parties in the compromise decree and their owners, according to the record, are as under:
S.Nos. Area Owners according to R/R
274 1-06 acres Mst. Izzat Khatoon 0-50 Sultan 0-50
231 1-31 acres Same as above
236 6-32 acres Ghulam Muhammad Ghulam Ali Ghulam Mujtaba Mst. Ghulam Fiza
277 1-00 acres Mst. Izzat Khatoon 0-50 Sultan 0-50
279 2-15 acres = =
289/1 0-15 acres = =
452 5-11 acres = =
376 3-11 acres = =
359 1-05 acres = =
250 7-12 acres = =
378/2 1-19 acres = =
379 2-04 acres = =
The above persons were not joined as parties in the Civil suit and they are not party to the compromise decree and, therefore, the decree is not binding on the above persons. He has further submitted that on account of the above reasons the compromise decree cannot be executed upon as per terms and conditions mentioned in the decree. He has explained that he has refused to mutate the record of rights as per terms and conditions of decree for the reasons that the parties in the suit are not owners as per record of rights.
We have asked Mr. Moohanlal whether any execution application has been filed before the Civil Court for the execution of decree, to which he has replied that no execution application has been submitted because the compromise decree is a declaratory decree, which is not capable of being executed. He has further submitted that without filing any execution application the petitioners are entitled to get the mutation in the record of rights in pursuance of the declaratory decree passed by the Civil Court. In support of his contentions he has placed reliance on a D.B. judgment of this Court in the case of Muhammad Yousaf v. Abdul Rashid PLD 1973 Karachi 686, wherein it has been held that if a decree does not contain any absolute direction but has stopped short with declaring the rights and the obligations of the parties relating to the property forming the basis of the claim sought to be enforced through execution proceedings, the decree would be merely declaratory in nature and not capable of execution. He has further replaced reliance on a single Bench judgment of the Lahore High Court in the case of Khushi Muhammad v. Member, Board of Revenue 1992 CLC 125, wherein it has been held that the Revenue Officer is bound by a decree of the Civil Court and has no authority to review or scrutinize the merits of the decree of the Civil Court and even it is barred by time, the Revenue authorities are obliged to sanction mutation on the basis of decree of the Civil Court. He has next placed reliance on the judgment of Honourable Supreme Court in the case of Ali Ahmad v. Muhammad Fazal 1972 SCMR 322, wherein it has been held that the Revenue authorities are under obligation to sanction mutation on the basis of a decree.
We have examined the compromise decree and we are not persuaded to agree with the submission of Mr. Moohanlal that it is a declaratory decree simpliciter. The test has been laid down in the D.B. judgment of this Court in the case of Muhammad Yousuf (supra), wherein it has been held that if the decree stops short with declaring the rights and obligations of the parties relating to the property forming the basis of the claim sought to be enforced, it was a decree declaratory in nature. In the compromise decree in first class Suit No. 60 of 1995 we find that the parties have settled the terms and conditions of compromise and after specifying the survey number and the area, which shall be held by each party, it has been agreed that after passing of decree the record shall be prepared accordingly. Mukhtiarkar, Larkana was a party to the compromise decree. Thus, when there is a specific condition in the compromise and the compromise decree has been passed in pursuance of the terms and conditions agreed between the parties containing the condition that the record shall be prepared accordingly, it is not a decree declaratory in nature simpliciter and therefore, if Mukhtiarkar being a party to the compromise decree has refused to act according to the compromise, the decree holders ought to have approached Civil Court for the execution of the decree.
Mr. Muhammad Bachal Tonyo has pointed out that at the time of submitting compromise application the learned counsel for the plaintiff had filed statement withdrawing the suit against Respondents Nos. 4 to 6 i.e., Mukhtiarkar, Larkana, S. H.O. Taluka Police Station, Larkana and Government of Sindh through D.C. Larkana. Even if the suit was withdrawn against the Respondents Nos. 4 to 6, the record was to be mutated by the Revenue Authorities and the Civil Court is competent to get the decree executed. However, if Mr. Moohanlal is of the view that the decree is declaratory in nature, the relief lies in filing the suit for execution of a decree, more particularly because the facts are disputed. According to Tapedar and Mukhtiarkar, the lands are mutated in the names of persons who were not party to the suit and therefore, the trite law is that nobody can transfer any right, title or interest in a property which he himself does not hold in the said property. Mr. Moohanlal has submitted that the lands are mutated in the names of the persons, whose heirs were party to the compromise decree. This is also a question of fact and cannot be decided in exercise of jurisdiction under Article 199 of the Constitution. The ratio of the judgments, on which Mr. Moohanlal placed reliance, leads us to the conclusion that if there is no dispute about the title of the land, in that case the Revenue Authorities have no jurisdiction to refuse the mutation in accordance with a decree of Civil Court on the ground that the suit was barred by time or decree had become barred by time or the decree passed by the Civil Court was not in accordance with the law. However, if the decree is not capable of execution for the reason that it is between the parties who had no right in law to enter into compromise in respect of the properties, for the reason that they were not owner of the properties, the Revenue Authorities are justified in not mutating the record depriving the persons, who were not party to the decree, of their valuable rights and are shown as owners in the record of rights. These questions can be decided by the Civil Court and particularly the point that the persons, in whose names the lands are mutated in the record of rights, are bound by the compromise decree being predecessors-in-interest of the parties to the compromise. All these questions cannot be decided in this petition and therefore, the petitioner may pursue a remedy through Civil Court seeking clarifications on all the above points as well as execution of decree. The petition stands disposed of in the above terms.
(Fouzia Fazal) Order accordingly
PLJ 2006 Karachi 273
Present: Ali Sain Dino Metlo, J.
AURANGZEB--Petitioner
versus
Mst. GULNAZ and another--Respondents
Const.P. No. 121 of 2006, decided on 24.3.2006.
Constitution of Pakistan, 1973--
----Art. 199--Dissolution of marriage on the ground of Khula'--Restitution of dower is not an indispensable condition for grant of Khula' and non-restoration of dower and other benefits will not have any effect upon the validity of the decree--Once the Family Court comes to conclusion that a wife was entitled for Khula it must pass such decree in her favour--Decision regarding the restoration of mutual benefits will have to be taken in the light of facts of each case and it will have the effect of only creating a civil liability--If the contention that Khula' cannot be granted without restitution of dower and other benefits, is accepted, then a destitute wife, who is found otherwise entitled to Khula', will stand deprived of the right simply because of her incapacity to return the benefits, which will be highly unfair and against the spirit of law and justice--Wife, in the present case, admittedly lived with the husband for over one and half year, such living can be treated as sufficient reciprocal benefit received by the husband for a dower of Rs. 42,000--Wife who belonged to a lower class, seemed to be not in a position to pay the amount particularly after undergoing the litigation for two and half years, Family Court, taking into consideration the overall facts of the case, had rightly considered proper to dissolve the marriage by way of Khula' without ordering restoration of dower, it was within the discretion of the Family Court, and therefore, the decree could not be termed as without lawful authority' so as to warrant interference of the High Court under Constitutional jurisdiction. [Pp. 276 & 277] A, B & C
2003 YLR 70; 2003 YLR 599; PLD 1959 (W.P.) Lah. 566; PLD 1977 Kar. 855; Verse 20 of Sura Al-Nisa; NLR 1982 SC 104 and PLD 1983 SC 169 ref.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----Ss. 5, 14 & Shedl.--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Khula--Maintainability--Alternate remedy, availability of--Suit for dissolution of marriage was decreed on ground of Khula'--Determination and restoration of mutual benefits--Decree for marriage on the ground of Khula' though was not appealable in view of S. 14, West Pakistan Family Courts Act, 1964, a decision with regard to determination and restoration of mutual benefits was appealable--Alternative remedy of appeal being available, Constitutional petition was not maintainable. [Pp. 277 & 278] D & E
1982 CLC 2057; PLD 1987 Lah. 420 and 2003 YLR 2708 ref.
Mr. Muhammad Ali Abbasi, Advocate for Petitioner.
Nemo for Respondents.
Date of hearing: 24.3.2006.
Judgment
Petitioner Aurangzeb, by way of this petition under Article 199 of the Constitution, seeks declaration to the effect that the decree passed on 17.12.2005 by the Family Court IV, Karachi Central, in Respondent No. 1's Family Suit No. 302 of 2003, dissolving marriage between the parties on the ground of Khula' without restitution of dower was without lawful authority and of no legal effect, and mandatory injunction to direct her (Respondent No. 1) to join him (petitioner) and perform her marital obligations.
Briefly, the facts are that the marriage between the parties, which took place in January 2000 at Darband, Abbotabad, proved unsuccessful. The parties lived together for about one and half year but no child was born to them as, according to the petitioner, the Respondent No. 1 was using contraceptive devices against his wish. In or about the month of July, 2003, the Respondent No. 1 filed the suit for dissolution of marriage, past maintenance and dowry alleging that the conduct of the petitioner, right from the beginning, was very harsh and cruel and he used to beat her severely on every petty matter and ultimately he drove her out from his house in three clothes. According to her, the ornaments of dower were also taken away from her by petitioner's mother just after few days of the marriage on the pretext that they were to be worn only on ceremonial occasions, and were never returned back, and the dowry, which was worth about rupees two lac, was also retained by the petitioner. She further pleaded that due to the conduct of the petitioner she had developed intense hatred for him and it was not possible for her to live happy life with him within the limits prescribed by Allah. The petitioner contested the suit and contended that there was nothing wrong with him and the Respondent No. 1 had been simply misguided by her maternal uncle. He denied that his mother had taken away the ornaments from her and contended that the dowry was hardly of rupees ten or fifteen thousand.
By an order dated 15-7-2003, the Family Court, on failure of its reconciliatory efforts, dissolved the marriage on the ground of Khula' and directed the Respondent No. 1 to return dower to the petitioner. On appeal, filed by the Respondent No. 1, the matter was remanded to the Family Court to decide the issue about the restitution of dower after recording evidence. The Respondent No. 1 examined herself and her father, while the petitioner examined himself and two other witnesses. In spite of its finding that the Respondent No. 1 had failed to prove that petitioner's mother had taken away the ornaments of dower from her, the Family Court, by its judgment and decree dated 7-12-2006, dissolved the marriage without ordering for the restoration of dower holding that for the grant of Khula' restitution of dower was not necessary. The prayer for maintenance was refused on the ground that the petitioner was not obliged to provide maintenance for the period she lived separate from him and the prayer for dowry was allowed only to the extent of the dowry admitted by the petitioner.
Mr. Muhammad Ali Abbasi, learned counsel for the petitioner argued that the decree was `without lawful authority and of no legal effect' as, according to him, Khula' can't be granted without restitution the dower. However, he could not cite any authority in support of his argument.
The finding of the Family Court that the Respondent No. 1 had failed to prove that petitioner's mother had taken away the ornaments of dower from her is premised only on the ground that in support of her contention she had examined herself and her father and no other independent witness, ignoring that the petitioner had also not examined his mother to deny the allegation and in view of Section 17 of the Family Courts Act, 1964, the rules of evidence as contained in the Qanun-e-Shahadat, 1984, were not applicable in family matters. Thus, one may reasonably differ with the finding. But as far as the present petition is concerned, the question raised in it can be decided without disturbing the finding and, therefore, it will be unnecessary to reappraise the evidence.
The contention of the petitioner that Khula' cannot be granted without restitution of dower is not tenable in law. The view taken by the Family Court is not only consistent with the view taken in the cases of Mst. Saiqa v. Additional District Judge, Rawalpindi PLD 2003 Lahore 70 and Munawar Iqbal Satti v. Mst. Uzma Satti and others 2003 YLR 599 Lahore, referred to in its judgment, but is also in accord with the judicial opinion expressed in many other judgments of the superior Courts.
In his landmark judgment in Mst. Balqis Fatima's case PLD 1959 (W.P.) Lahore 566, which was first of its kind in the field of family laws in Pakistan, B.Z. Kaikaus, J. speaking for the Full Bench observed in paragraph 24 at page 582 of the report:
"Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation. If the dissolution is due to some default on the part of the husband, there is no need of any restoration. If the husband is not in any way at fault, there has to be restitution of property received by the wife and ordinarily it will be of the whole of the property but the Judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a benefit received."
In the case of Mst. Shamshad Begum v. Abdul Haque alias Nawaz and 2 others PLD 1977 Karachi 855 a Division Bench of this Court, referring to verse 20 of Sura-al-Nisa and opinion expressed in `Radd-ul-Muktar.' observed that it was not lawful for a husband to take back anything from his wife particularly when Khula' was due to some fault on his part. In the case of Mst. Razia Begum v. Saghir Ahmed NLR 1982 SC 104 Karachi Saleem Akhtar, J. (as his Lordship then was) held that after dissolution of marriage on the ground of Khula', a decree for unpaid dower could validly be passed as it was not necessary to forgo dower in lieu of Khula'. In the case of Dr. Akhlaq Ahmed v. Mst. Kishwar Sultana and others PLD 1983 SC 169 the Hon'ble Supreme Court was pleased to hold that non-restoration of consideration for Khula' did not invalidate the dissolution of marriage by Khula' and once the Family Court came to the conclusion that the parties could not remain within the limits of God, the dissolution must take place and the inquiry and finding with regard to the benefits to be returned by the wife to the husband would only create civil liabilities upon the wife and would not have any effect upon the dissolution itself.
Thus, the consensus of judicial opinion is that restitution of dower is not an indispensable condition for the grant of Khula' and non-restoration of dower and other benefits will not have any effect upon the validity of the decree. Once the Family Court comes to conclusion that a wife was entitled for Khula' it must pass such decree in her favour. The decision regarding the restoration of mutual benefits will have to be taken in the light of facts of each case and it will have the effect of only creating a civil liability. If the contention of the petitioner that Khula' cannot be granted without restitution of dower and other benefits is accepted, then a destitute wife, who is found otherwise entitled to Khula, will stand deprived of the right simply because of her incapacity to return the benefits, which will be highly unfair and against the spirit of law and justice.
The Respondent No. 1 admittedly lived with the petitioner as his wife for over one and half year and in the light of the weighty observations made in Mst. Balqis Fatima's case, such living can be treated as sufficient reciprocal benefit received by the petitioner for a dower of Rs. 42,000 which is not a big amount in these days. Moreover, the Respondent No. 1, who belongs to a lower class, seems to be not in a position to pay the amount particularly after undergoing the litigation for two and half years. The Family Court, taking into consideration the over all facts of the case, considered it proper to dissolve the marriage by way of Khula' without ordering restoration of dower. It was within its discretion and, therefore, the decree cannot be termed as `without lawful authority' so as to warrant interference in the exercise of constitutional jurisdiction.
The petition is not maintainable, from another angle also. Though a decree for the dissolution of marriage on the ground of Khula' is not appealable in view of the proviso to Section 14 of the Family Courts Act, 1964, a decision with regard to determination and restoration of mutual benefits is always appealable and for this view reference may be made to the cases of Muhammad Shafi v. District Judge Gujrat and another 1982 CLC 2057 Lahore, Muhammad Sanaullah v. Muhammad Ilyas, Senior Civil Judge/Judge Family Court Toba Tek Singh and 2 others PLD 1987 Lahore 70, and Muhammad Shaban v. Judge Family Court and others 2003 YLR 2708 Lahore. In presence of the alternate remedy of appeal, constitutional petition under Article 199 is not maintainable.
It was for the above reasons, recorded now, that the petition, being not maintainable and meritless, was dismissed in limine by a short order passed on 24-3-2006.
(Fouzia Fazal) Petition dismissed
PLJ 2006 Karachi 278 (DB)
Present: Saiyed Saeed Ashhad, C.J., and Maqbool Baqar, J.
JEHANGIR--Petitioner
versus
GOVERNMENT OF SINDH through SECRETARY, LOCAL GOVERNMENT OF SINDH and 3 others--Respondents
Const. P. No. D-733 of 2004, decided on 9.2.2005.
Constitution of Pakistan, (1973)--
----Art. 199--Sindh Local Government Ordinance (XXVII of 2001), S. 191--Constitutional petition--Framing of Rules--Non-publication of proposed rules--Right of hearing of objector--Assailed vires of rules--Neither they were publicized through print media nor opportunity of hearing was given to him, as he had filed objections with regard to proposed Rules--Validity--Publicizing proposed rules through print or electronic media or to be sent to Nazims of Union Councils concerned, was neither required under S. 191 of Sindh Local Government Ordinance, nor under any provision of any other law--Personal hearing of objector was also not required under S. 191 of Sindh Local Government Ordinance, with regard to objections filed by any person--Non-consideration of objections/suggestions per se would not render promulgation of rules illegal or without authority. [Pp. 280 & 281] A & B
Sindh Local Government (Election Authority) Rules, 2004--
----R. 19--Sindh Local Government Ordinance (XXVII of 2001), Ss. 24, 47 & 62--Constitution of Pakistan (1973), Art. 199-- Constitutional petition--Vires of Rules--Replacement of Nazim or Naib Nazim--Procedure--Election Authority, jurisdiction of--Petitioner being Nazim of Union Council contended that Election Authority did not have any jurisdiction to restrain him from performing his functions--Validity--Under no circumstances, Sindh Local Government Ordinance, allowed replacement of Nazim or Naib Nazim by Government functionary and in all events, functions of Nazim or Naib Nazim were to be discharged by the elected representative as provided for by the Ordinance itself--Nazim or Naib Nazim being elected persons could not seize to hold office unless a recall motion was voted upon and passed by councils/houses as provided for--Conferring discretionary powers on Election Authority of restraining Nazim from performing his functions as such was ultra vires of the purpose, spirit and specific provisions of Sindh Local Government Ordinance--Such powers were not conferred upon Election Authority, by Sindh Local Government Ordinance, itself and the same were derogatory to the exercise of power of the public representative--Provision of R.19 of Sindh Local Government Election Rules, 2004, was beyond the mandate of law, and repugnant to and violative of the various provisions thereof--Mechanism and scheme prescribed by Sindh Local Government Ordinance, for recall of a Nazim or Naib Nazim, except in case of external recall of Zila Nazim, required such recall motion to be approved by two houses/councils before the same could be put into effect--Such provision of R.19 of Sindh Local Government Election Rules, 2004, was oppressive and arbitrary and was against settled democratic norms and was ultra vires of Sindh Local Government Ordinance--Constitutional petition was allowed accordingly. [Pp. 284 & 285] C, D & E
PLD 2004 SC 694 fol.
Mr. Khalid Shah, Advocate.
Mr. Jhamat Jethanand, Advocate.
Mr. Sher Habibani, Advocate.
Mr. Kamal Azfar, Advocate.
Mr. Rasheed A. Razvi, Advocate.
Mr. Anwar Mansoor Khan, Advocate-General.
Date of hearing: 24.12.2004.
Order
Maqbool Baqar, J.--Through this petition, the petitioner, who is Nazim, Union Council, Mitho Khoso, Taluka Tando Adam, District Sanghar, has challenged the Sindh Local Government (Election Authority) Rules, 2004, as having been framed without lawful authority and of no legal effect.
The impugned Rules, before being promulgated, vide Notification dated 18-6-2004, published in the Sindh Government Gazette dated 22.6.2004, were, as required by sub-section (3) of Section 191 of the Sindh Local Government Ordinance, 2001 (SLGO, 2001), published in the Sindh Government Gazette dated 10-6-2004, soliciting objections and suggestions in respect of the said proposed Rules. Such objections and suggestions were required to be sent to the Secretary, Government of Sindh, Local Government Department, within a period of seven days of the said publication. According to the petitioner, the aforenoted publication dated 10.6.2004 came to the knowledge of the petitioner and other Nazims on 16.6.2004, whereupon they tried to transmit their objections to Respondent No. 2, Secretary, Local Government, through, fax, but could not do so as the fax machine was out of order. However such objections/suggestions were sent by Zila Nazim Badin to the Chief Secretary, Government of Sindh through fax and on 16-6-2004 the petitioner sent his objections/suggestions regarding the proposed Rules to the Secretary Local Government, Government of Sindh and the Election Authority Sindh, the Respondents Nos.2 and 3, and also to the Chief Election Commissioner by courier service. Such objections/suggestions were also submitted by the petitioner to the Respondent No. 2, personally on 17-6-2004. However, the Chairman of Respondent No. 3, advised the Respondent No. 2, not to accept the said objections/suggestions, as according to him time for filing objections/ suggestions had expired, and sought immediate publication of the Rules. It is further alleged that the Respondent No. 2 being dissatisfied with the above contention of the Chairman of Respondent No. 2, referred the matter to the Secretary Law for legal opinion. The Secretary Law in response opined that the aforesaid objections/suggestions were time-barred and were not required to be considered. It is contended that the impugned Rules are violative of the provisions of, Article-2 of Sindh Local Government Election Order-VIII of 2000, Sections 150, 164 and 190(3) of Sindh Local Government Ordinance, 2001, and Rule 3(1) and Chapter-V of Local Government Election Rules, 2000, and are also in conflict with the judgment of the Hon'ble Supreme Court in the case of Khawaja Ahmed Hussain v. Government of Punjab and others in Civil Appeal No. 1390/2003 (PLD 2004 SC 694). It is further contended that the Rules have been framed/promulgated, without affording an opportunity of hearing to the petitioner and other objectors and in disregard of such objections. The other contention raised by the petitioner is that the Notification dated 9-6-2004, containing the proposed Rules ought to have been sent to the petitioner and other Nazims through post and the same should have been publicized through electronic and print media and further that sufficient time should have been given for submitting objections/suggestions in respect of the proposed Rules. It is urged that the Respondents Nos. 1 and 2 had no jurisdictions to frame the Rules without deciding the objections/suggestions and further that the Rules as framed/promulgated are against the democratic decentralization and the welfare of the people.
Comments to the above petition were tiled on behalf of the Respondents Nos.2 and 3, whereas, Respondent No. 4, filed his counter-affidavit.
The instant petition was filed on 10.8.2004, and as noted above, the impugned Rules were promulgated and so published, vide Notification dated 18-6-2004, in the Sindh Government Gazette dated 22-6-2004. The impugned Rules have been framed and promulgated by the Respondent No. 1, under and in terms of Section 191 of the Sindh Local Government Ordinance, 2001. In terms of sub-section (3) of Section 191 such Rules, before the same could be promulgated and notified as such, were to be published in the official Gazette. The Rules were accordingly published in the official Gazette dated 10-6-2004 and in terms of the said publication, objections/suggestions in respect of the proposed Rules were to be sent to the Secretary, Local Government Department, Government of Sindh within a period of seven days of such publication. Neither Section 191 or any other provisions of the Sindh Local Government Ordinance, 2001 nor any provisions of any other relevant Law require publicizing such proposed Rules through print or electronic media or to be sent to Nazims as contended. The contention of the petitioner that before adopting the Rules the petitioner and other objectors ought to have been given an opportunity of hearing is also misconceived as Section 191 of the SLGO, 2001 does not require any personal hearing in that regard. It is true that contrary to the contention of the Respondent No. 1, the objections/suggestions by the petitioner, as evident from the acknowledgement of receipt dated 17-6-2004 (annexure E-1 to the petition), were submitted within the prescribed time. However non-consideration of the said objections/suggestions per se would not render the promulgation of the Rules illegal, or without authority.
It is well-entrenched principle of interpretation of statutes that the rules made under statute must be consistent with the statute under which they are made, and that rules cannot repeal or contradict express provisions of the statute, from which they derive their authority. It is equally well-recognized principle that if the rules framed under a statute, are in excess of the provisions of such statute or are in contravention of or inconsistent therewith, or are repugnant to any well-established principle of statute, such rules must be regarded as ultra vires of the statute and cannot be given effect to.
The petitioner, in order to obtain a declaration sought through the instant petition, was thus required to show that the impugned Rules were either directly repugnant to the general purpose of SLGO, 2001, or the general principle of said Ordinance or that the Rules are not in consonance therewith or were in excess of or inconsistent with the provisions of the said enabling Ordinance. But, despite being repeatedly called upon, to point to any of the impugned Rules as being so plagued. The counsel for the petitioner could only point to Rule 14 of the impugned Rules as such. He however, without specifying any particular rule, submitted that the impugned Rules are inconsistent with Sections 150, 164 and 190 of SLGO/2001. We have examined the said sections and may observe that Section 150 of SLGO, 2001 provides that the Local Government elections under SLGO, 2001, shall be conducted by the Chief Election Commissioner, in pursuance of the Local Government Elections Order, 2000. Section 190 provides that appeal against orders passed in pursuance of SLGO, 2001 or rules or bye-laws made thereunder shall be preferred before such authority in such manner and within such period as may be prescribed, and in terms of Section 164, SLGO 2001, notifications of elections, by-election, of the result of such election and of resignation, removal, or recall of a member, Nazim or Naib Nazim are to be issued by the Chief Election Commissioner.
Whereas impugned Rules, as can also be seen from the title of the said Rules, pertain to the Election Authority as envisaged by explanation to Section 24 of SLGO, 2001 and deals with the Constitution, nomination and appointment of the said Authority in consonance with the said provisions. The impugned Rules specify the procedure and mechanism for internal and external recall motions against the Nazims and Naib Nazims of various tie of Local Government as contemplated by Sections 24,47,62,63, 72,84 and 85 of SLGO, 2001 and specify powers and functions of the Election Authority in relation to the said recall motions, in consonance with the various provisions, spirit and purpose of SLGO, 2001 and Sindh Local Government Election Rules, 2000, such powers and functions are neither repugnant to the Election Rules nor do they impinge upon any such rules. We may observe here that issuance of Notification of removal or recall of a member, Nazim or Naib Nazim as provided for by Section 164 of SLGO, 2001 certainly falls within the exclusive domain of the Chief Election Commissioner and none of the impugned Rules confer such power to the Election Authority. Although in terms of Rule 27(2) of the impugned Rules, results of voting on the recall motions, declared and authenticated by the Election Authority are required to be notified by the Government, however the functions and power to issue notification of removal or recall of a Nazim or a Naib Nazim, as noted above still remains with the Chief Election Commissioner.
We shall now proceed to examine the vires of Rule 19 of the impugned Rules, the only rule singled out by the learned counsel for the petitioner as ultra vires of SLGO, 2001. The learned counsel in support of his contention had relied on the judgment of the Hon'ble Supreme Court in the case of Ahmed Hasan v. Government of Punjab (PLD 2004 SC 694), whereby the Hon'ble Supreme Court has held Rule 14 of the Punjab Local Government (Recall Motions against the Nazim and Naib Nazim) Rules, 2004, which rule is analogous to and couched in almost similar language as is Section 19 of the impugned Rules. The relevant portion of the said judgment is reproduced hereunder:- .
`41. We have no hasitation in our mind after having examined the provisions of Rule 14 of the rules, that it is not inconsistent with the provisions of Section 63 of the Ordinance. There is neither any logic nor reasoning behind such substitution as allowed by the rules whereby a public functionary can be substituted with that of a bureaucrat. The speculative misuse of powers can be prevented by invoking the provisions as contained in Section 63(4) of the Ordinance which provides that if the motion referred to in sub-section (1) of Section 63 is approved by majority of the votes of its total membership through a secret ballot, the Election Authority shall cause a vote to be cast by the members of Union Councils in the Tehsil. It can be done within a short span of time, which would eliminate the possibility of misuse of power of Nazim or Naib Nazim. The second phase concerning the recall motion a envisaged in Section 64(4) of the Ordinance which otherwise should be completed at the earliest enabling the house to elect the new Nazim which would be in the interest of public and moreso, there would be no occasion for suspicion/doubts, abuse of authority and misuse of power. The subordinate power of framing rules granted by the statute cannot be exercised to override the express provisions of the statute itself, therefore, rule 14 of the Rules is ultra vires of the Punjab Local Government Ordinance and cannot be given effect to. It is well-settled by now that "a statutory rule cannot enlarge the scope of the section under which it is framed and if a rule goes beyond what the section contemplates, the rule must yield to the statute. The authority of executive to make rules and regulations in order to effectuate the intention and policy of the Legislature, must be exercised within the limits of mandate given to the rule-making authority and the rules framed under an enactment must be consistent with the provision of said enactment. The rules framed under a, statute, if are inconsistent with the provisions of the statute and defeat, the intention of Legislature expressed in the main statute, same shall be invalid. The Rule-making authority cannot clothe itself which power which is not given to it under the statute and thus the rules made under a statute, neither enlarge the scope of the Act nor can go beyond the Act and must not be in conflict with the provisions of statute or repugnant to any other law in force." Pakistan v. Aryan PETRO Chemical Industries (Pvt.) Ltd. 2003 SCMR 370; Ziauddin v. Punjab Local Government 1985 SCMR 365; Hirjina Salt Chemicals (Pak) Ltd. v. Union Council Gharo 1982 SCMR 522; Mehraj Flour Mills v. Provincial Government 2001 SCMR 1806 and Collector of Sales Tax v. Superior Textile Mills Ltd. PLD 2001 SC 600.'
Rule 19 of the impugned Rules which, as noted above is couched in almost similar language as is Rule 14 of the Punjab Local Government (Recall Motions against the Nazim and Naib Nazim) Rules, 2004, reads as follows:
"19. (1) When the motion for recall of Nazim or Naib Nazim of a council has been approved under Sections 24, 47, 63, 72 and 84, sub-section (2) of Sections 62 and 84, the Election Authority may restrain the Nazim or Naib Nazim from performing his functions till the declaration of result of the votes to be cast by the members of the respective councils to ensure free and fair exercise of right of vote by the members.
(2) Where the Election Authority restrains a Nazim or Naib Nazim from performing his functions under sub-rule (1), the Government may nominate any officer to perform his functions during the said period."
We have minutely examined the above Rules vis-a-vis SLGO, 2001 and are of the firm view that the same is clearly beyond the mandate of law, is patently repugnant to and violative of the various provisions thereof. The machanism and scheme prescribed by SLGO, 2001 for recall of a Nazim or a Naib Nazim, except in case of external recall of a Zila Nazim, requires such recall motions to be approved by two houses/councils before the same could be put into effect. Section 24 of SLGO, 2001 which provides internal recall of the Zila Nazim and prescribes a mechanism in respect thereof, requires that after a motion for recall of the Zila Nazim is approved by the Zila Council, the same shall be put to vote before the Union Councils in the District and that it is only after the motion has been approved by such Union Councils that the Nazim shall seize to hold the office and that too from the date of notification issued in this behalf by the Election Authority.
Section 47 requires that after a recall motion against a Naib Zila Nazim has been approved by the Zila Council, the same shall be put to vote before the Union Councils in the District. Section 63 requires an internal recall motion against a Taluka Nazim to be first approved by the Taluka Council and thereafter by the Union Councils in the District. Section 72 provides that a recall motion against a Naib Taluka Nazim shall first be approved by the Taluka Council and thereafter by the Union Councils in the Taluka. In terms of Section 84 a resolution for external recall against a Union Nazim is first required to be approved by the Taluka Council and thereafter by the Union Councils, village councils and neighbourhood councils in the Union, whereas Section 62 requires an external recall motion against Taluka Nazim to be first approved by the Zila Council and thereafter by the Union Councils in the Taluka and it is only after the motion is approved by voting through the second phase as noted above that a notification, to the effect that such Nazim ceases to hold office can be issued and that too by the Election Authority and in terms of Section 156, SLGO, 2001 a vacancy of Union Nazim or Naib Union Nazim is required to be filled through by-election within, as far as practicable, 120 days of the occurrence of vacancy and a vacancy of Zila Nazim or a Naib Zila Nazim or Taluka Nazim or a Town Nazim, Naib Taluka Nazim, or Naib Town Nazim is to be filled through by-election within, as far as practicable, 120 days of the occurrence of the vacancy. Sub-section (6) of Section 156 provides that when the office of Zila Nazim, Taluka Nazim or Town Nazim falls vacant the members of concerned councils shall, by a majority vote elect an officiating Nazim from amongst its members and sub-section (7) of the said section requires that when the office of an Union Nazim falls vacant, the members of the concerned Councils shall be majority vote elect an officiating Union Nazim from amongst its members. In terms of Section 22 SLGO, 2001, in the event the office of Zila Nazim falls vacant for reasons of his death, resignation, removal or suspension etc. the Naib Zila Nazim shall act as Zila Nazim till an officiating Zila Nazim is appointed under sub-section (2) of Section 156 or a Zila Nazim is elected under sub-section (5) of that Section. In terms of Section 48 SLGO, 2001 in case the office of Zila Nazim falls vacant by reasons of his death, resignation or removal, the Zila Council is required to elect one of its members as an officiating Zila Nazim till a new Zila Nazim is elected under the provisions of Section 156. Section 61 provides a similar stopgap arrangement in case of Taluka Nazim as does Section 22, in case of a Zila Nazim and in terms of Section 68, in case the office of a Taluka Nazim falls vacant by reasons of his death, resignation or removal, Taluka Council is required to elect an officiating Taluka Nazim from, amongst its members till a new Taluka Nazim is elected.
From the foregoing it is manifestly clear that under no circumstances, SLGO, 2001 allows replacement of a Nazim or a Naib Nazim by a Government functionary and in all events the functions of Nazim or Naib Nazim are to be discharged by the elected representative as provided for by the Ordinance itself. A Nazim or a Naib Nazim being elected persons does not seize to hold office unless a recall motion is voted upon and passed by Councils/Houses as provided for, conferring discretionary powers on the Election Authority, of restraining him from performing his functions as such, is ultra vires of the purpose, spirit and specific provisions of SLGO 2001 such powers are not conferred upon the authority by the Ordinance itself and the same are derogatory to the exercise of power of the public representative. The Rule, is therefore, oppressive and arbitrary and is against settled democratic norms. We therefore, declare Rule 19 as ultra vires of SLGO, 2001. The petition stands disposed of in the foregoing terms.
(Fouzia Fazal) Order accordingly
PLJ 2006 Karachi 285
Present: Muhammad Mujeebullah Siddiqui, J.
MUHAMMAD RAMZAN and 2 others--Applicants
versus
GOVERNMENT OF SINDH through DISTRICT OFFICER (REVENUE), NAWABSHAH and 3 others--Respondents
R.Appln. No. 24 of 2001, decided on 18.4.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 11--Sindh Public Property (Removal of Encroachment) Act (V of 1975), Ss. 3, 4, 11 & 12--Constitution of Pakistan, 1973, Art. 199--Rejection of plaint--Jurisdiction of Civil Court--Non-availability of Tribunal--Notice issued by authorities for removal of encroachment was assailed by plaintiff in civil suit--trial Court rejected the plaint under O.VII, R. 11 C.P.C., in view of the bar contained in S. 11 of Sindh Public Property (Removal of Encroachment) Act, 1975--Order passed by trial Court was maintained by Appellate Court--Contention of the plaintiff was that at the time of filing of suit there was no Tribunal as provided in proviso to S. ll of Sindh Public Property (Removal of Encroachment) Act, therefore, notice for removal of encroachment was assailed before Civil Court--Validity--Even if the contention of plaintiff was correct that at relevant time no Tribunal was constituted, it would not confer jurisdiction on Civil Court, which was otherwise barred under S. ll of Sindh Public Property (Removal of Encroachment) Act, 1975--If no forum was available to an aggrieved person and the jurisdiction of Civil Court was barred under the law, then the absence of forum would not have the effect of conferring jurisdiction on a Civil Court--Aggrieved person in such circumstances could approach High Court invoking Constitutional jurisdiction, which provided that if no remedy was available to a person, such person could approach High Court under Art. 199 of the Constitution--Jurisdiction of Civil Court was barred, was not open to any exception--High Court declined to interfere with the orders passed by Courts below--Revision was dismissed. [Pp. 286 & 290] A & B
Mr. Jhamat Jethanand, Advocate for Applicants Nos. 1 to 3.
Mr. Masood A. Noorani, Addl. A.-G. Sindh. for Respondents Nos. 1 to 3.
Mr. Ghulam Shabbir Memon, Advocate for Respondent No. 4.
Date of hearing: 18.4.2005.
Judgment
This revision application is directed against the judgment and decree dated 19-12-2000 and 5-1-2001 respectively passed by the learned IInd Additional District Judge, Nawabshah thereby maintaining the order passed by the learned IInd Senior Civil Judge, Nawabshah rejecting the plaint under Order VII, Rule 11, C.P.C.
The relevant facts are that the applicants filed a suit for declaration and Injunction in the Court of learned lind Senior Civil Judge, Nawabshah being F.C. Suit No. 163 of 1999 seeking declaration that notice issued under Section 3 of the Sindh Public Property (Removal of Encroachment) Act, 1975 by the Administrator Town Committee, Sakrand was illegal. A permanent injunction was also sought restraining the respondents including the Respondent No. 4 from demolition/removal of the construction/structure from the land in possession of the applicants. .
The plaint was rejected under Order VII, Rule 11, C.P.C. for the reasons that no suit was competent challenging the notice under Section 3 of the Sindh Public Property (Removal of Encroachment) Act, 1975. The applicants preferred appeal which was also dismissed.
Mr. Jhamat Jethanand, learned counsel for the applicants has submitted that the point in issue is governed by the provisions contained in West Pakistan Highways Ordinance, 1959. The relevant provision is contained in Section 8 of the above Ordinance which reads as follows:-
"8. (1) As respects all highways which on or after the date of the coming into operation of this Ordinance are maintained by the Provincial Public Works Department or are provincial property maintained by local bodies, the following restrictions shall apply, that is to say, it shall not be lawful without the consent of the Highways Authority:--
(a) to construct or layout any means of access to or from the highway;
(b) to erect any building upon land within two hundred and twenty feet from the middle of the highway.
(2) No restrictions in force under the last proceedings sub-section shall apply in relation:--
(a) any building which is used or intended to be used mainly or exclusively for purpose relating to cultivation of land adjacent thereto otherwise than as a dwelling house;
(b) any works begun before the date of the coming into operation of this Ordinance or any works carried out in accordance with a permission granted by any competent authority before that date;
(c) any highway in respect of which a building line has been determined in accordance with Section 16.
He has further submitted that other law is the National Highway Authority Act, 1991 and the rules framed thereunder known as National Highways and Strategic Roads Control Rules, 1998. The relevant provision is contained in Rules 3 and 4 of the above Rules which reads as follows:-
"3. Restriction on Ribbon Development.--(1) Subject to sub-rule (2), no person shall, without the consent, in writing, of the Authority, erect any building or structure on land:--
(i) within seventy meters from centre line of a National Highway and no industrial building within one hundred meters on either side of the centre line;
(ii) within two hundred and fifty meters from centre line of a motorway;
(iii) within one thousand meters on either side of centre line at all interchanges and service areas in a length of one kilometre beyond connecting point of ramps and loops with a motorway and feeding roads; and
(iv) within forty meters from centre line of the nearest carriageway in case of sections of a National Highway or strategic road which is situated in Municipal limits.
(2) No such restriction on ribbon development referred to in sub-rule (1), shall apply in case of--
(a) any building which is used or intended to be used mainly or exclusively for purposes of or relating to cultivation of land adjacent thereto otherwise than as a dwelling house or a commercial property;
(b) any work begun before the date of coming into force the Highway Ordinance, 1959 (W.P. Ord. XXXII of 1959), or any other provincial law on the subject or any work carried out in accordance with permission of any competent authority before that date; or
(c) any National Highway in respect of which a building line has been determined under Rule 5 or under any provincial law before the commencement of the Act.
Mr. Jhamat Jethanand has contended that under the relevant provision of law the Administrator Town Committee is not empowered to issue the impugned notice and even an officer competent in law is merely empowered to remove the structure and is not empowered to remove the owner from the possession of the land.
He has submitted that through the impugned notice the possession of the applicants was also intended to be taken away therefore the impugned notice was without jurisdiction and the learned two Courts below have not considered this aspect of the matter.
On the other hand Mr. Ghulam Shabbir Memon, learned counsel for the Respondent No. 4 has pointed out that the impugned notice was issued by the Administrator/Assistant Commissioner and the Assistant Commission was empowered to issue notice under Section 3 of the Sindh Public Property (Removal of Encroachment) Act, 1975.
Mr. Masood A. Noorani, learned A.A.-G. has pointed out that the jurisdiction of Civil Court is barred in respect of a notice issued under Section 3 of the Sindh Public Property (Removal of Encroachment) Act, 1975 and a person aggrieved with issuance of notice may submit the review application under Section 4 of the Sindh Public Property (Removal of Encroachment) Act, 1975 which provides that any person dissatisfied by the order passed under Section 3 may within seven days from the service thereof prefer a review application to the Government or any Authority of officer who has passed such order. It is further provided that the Government or, as the case may be, the Authority or the officer as aforesaid may, after perusing the review petition filed under sub-section (1) and giving opportunity to the petitioner or his duly authorized agent of being heard, confirm, modify or vacate the order. He has further pointed out that the jurisdiction of Civil Court is completely barred under Section 11 of the Sindh Public Property (Removal of Encroachment) Act, 1975 which reads as follows:-
(2) All suits, appeals and applications relating to, encroachment and dispute that any property is not a public property or, that any lease or licence in respect of such property has been determined, for the purpose of this Act, shall abate on coming into force of this Act:
Provided that a party to such suit, appeal or application may, within thirty days of the coming into force of this Act, file a suit before a Tribunal in case of a dispute that any property is not a public property or that any lease or licence in respect of such public property has not been determined."
The learned Additional A.-G. has submitted that the forum available to the applicant was as provided under Section 4, by way of review before the same authority which passed the order and before the Tribunal constituted under Section 12 of the said Act. The learned A.A.-G. has submitted that admittedly the applicant did not prefer any review application before the Assistant Commissioner, Sakrand to issue notice and did not approach the Tribunal having jurisdiction. Mr. Noorani has produced a copy of the Notification issued in the year 2003 whereby all the District Judges in the Province have been appointed Tribunal under Section 12 of the Sindh Public Property (Removal of Encroachment) Act, 1975 within their respective jurisdiction, Mr. Jhamat Jethanand has submitted that at the time of filing suit there was no Tribunal and consequently the applicants had to approach the Civil Court. Even if the contention is correct to the extent that at the relevant time no Tribunal was constituted, it will not confer jurisdiction on the Civil Court which is otherwise barred under Section 11 of the Sindh Public Property (Removal of Encroachment) Act, 1975. If no forum is available to an aggrieved person and the jurisdiction of Civil Court is barred under the law, then the absence of the forum shall not have the effect of conferring jurisdiction on a Civil Court not vested in it, under the law, and particularly when it is specifically excluded. An aggrieved person in such circumstances can approach the High Court invoking the writ jurisdiction which clearly provides that if no remedy is available to a person he can approach the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan.
In the above circumstances. I am of the opinion, that for the reasons recorded above, the conclusion of the two Courts below that the jurisdiction of the Civil Court is barred, is not open to any exception. As I agree with the conclusion of the two learned Courts below, therefore, I do not find any reason to interfere with the impugned orders. The revision application is accordingly dismissed alongwith the listed application.
Before parting with this order I would like to clarify and notwithstanding the rejection of the plaint and dismissal of the revision application by this Court, the applicant shall be at liberty to seek the remedy available to him before the competent forum in accordance with law.
(Fouzia Fazal) Revision dismissed
PLJ 2006 Karachi 290 (DB)
Present: Muhammad Mujeebullah Siddiqui and Muhammad Moosa K. Leghari, JJ.
MUHAMMAD YAMIN KHAN--Petitioner
versus
GOVERNMENT OF PAKISTAN through CHAIRMAN MINISTRY OF RAILWAY, ISLAMABAD and 3 others--Respondents
Const. P. No. D-280 of 2004, decided on 21.4.2005.
Constitution of Pakistan, (1973)--
----Arts. 2, 2A, 14 & 199--Constitutional jurisdiction--Scope--Dignity of man--Petitioner being disabled person sought intervention of High Court to get him allotted a vending stall, against disabled quota--Contention of--There was no disabled quota for allotment of vending stalls--Validity--By virtue of various provisions contained in the Constitution, High Court could exercise its discretion for providing means of respectable livelihood to petitioner and save him from the ignominy and indignity of resorting to begging--If any department had failed to device a policy for disabled persons. High Court, which was saddled with responsibility of getting the principles contained in the Constitution enforced and protect the rights of citizen in accordance with social justice as enunciated in the Holy Qur'an and Sunnah, was duty bound to exercise Constitutional jurisdiction and issue a suitable writ in such behalf. [Pp. 292 & 294] A & C
Constitution of Pakistan, 1973--
----Arts. 14 & 2-A--Dignity of--Petitioner being disabled person, if he was asked to compete with other wealthy persons it would amount to negation of his right to earn his livelihood in a respectable manner and would amount to compel him to resort to begging--As such the same would be violative of the provisions contained in Arts. 14 and 2A of the Constitution--High Court directed the authorities to issue allotment order/licence in favour of petitioner at the railway station--High Court recommended the authorities to take a policy decision and provide a quota for disabled persons so that all such persons in the country could earn their livelihood in a respectable manner--Petition was, allowed accordingly. [Pp. 294 & 295] D & E
Constitution of Pakistan (1973)--
----Arts. 2, 2A & 14--Social justice--Dignity of man--Providing means of livelihood--Duty of State--Scope--Pakistan is Islamic State and the Constitution enjoins upon the State to observe the principles of social justice as enunciated by Islam and it is one of the basic duty of an Islamic State to help and provide sufficient means to every citizen to earn his livelihood in respectable manner--Begging is prohibited in Islam and, therefore, nobody should be put in a situation that he should have no option but to resort to begging to keep his two ends meet--Begging is violative of the dignity of a man and under Art. 14 of the Constitution, the dignity of man is to be protected, which is inviolable. [P. 294] B
Mr. Jhamat Jethanand, Advocate for Petitioner.
Mr. Muhammad Hussain Daudani, Advocate for Respondent No. 4.
Date of hearing: 21.4.2005.
Judgment
Muhammad Mujeebullah Siddiqui, J.--Through this petition, the main grievance of the petitioner is that he is a handicapped person. The petitioner met with an accident and his right arm has been amputated from the elbow joint and left arm has been amputated from the above elbow joint and his left leg was also broken, which was operated upon and iron rod was inserted therein. He has submitted that being a disabled person, he was favoured by the Railway authorities and a vending licence was granted for a stall at Railway Station, Hyderabad where he used to sell food item and earn his livelihood. Subsequently the stall was auctioned and he also participated in the auction and gave highest bid for Stall No. 2 at Platform No. 1, but the said stall is situated for away from the place where the trains stop, with the result that the passengers are not attracted to the far-off place where Stall No. 2 is situated and consequently he was not able to earn his livelihood. His licence expired and his request for granting licence for a stall situated near the place of stoppage of trains without participating in open auction has been turned down. In short the prayer is that he is disabled person and may not be compelled to compete with the others in open auction, which is not possible for him and a suitable stall may be allotted to him out of disabled persons quota and without participating in the open auction.
The learned counsel for the respondents has stated on the earlier dates that they have approached the higher authorities for sympathetic consideration of the request of the petitioner purely on humanitarian grounds, but they have received reply from Chief Commercial Manager, Lahore to the effect that although they are receiving letters from the Divisions, Ministry of Railways, Prime Minister Secretariat, President Secretariat and the individuals for allotment of vending stall contracts to disabled persons without open auction, but no quota of vending stalls is allocated to the disabled persons according to the policy in vogue and there is no policy directive available in this respect. The matter has been referred to the Director Operation, Ministry of Railway (Railway Board) Government of Pakistan, Islamabad to resolve the issue. However, no policy decision in this behalf has been received so far.
The learned counsel for the respondents has submitted that they have all sympathies with the petitioner and want to help him, but in the absence of policy decision, they are not able to extend any help to the petitioner.
In the circumstances as above, we are of the opinion that by virtue of various provisions contained in the Constitution of Islamic Republic of Pakistan, this Court can exercise its discretion for providing A means of respectable livelihood to the petitioner and save him from the ignominy and indignity of resorting to begging. It is provided in Article 2 of the Constitution of Islamic Republic of Pakistan that Islam shall be the State Religion of Pakistan. Under Article 2A of the Constitution, the principles and provisions set out in the objective Resolution reproduced in the Annexure have been made substantive part of the Constitution and shall have effect accordingly. The annexure containing the objective Resolution is reproduced hereunder:
"Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised with the limits prescribed by Him is a sacred trust;
This Constituent Assembly representing the people of Pakistan resolves to frame a Constitution for the sovereign independent State of Pakistan;
Wherein the State shall exercise its powers and authority through the chosen representatives of the people;
Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;
Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah;
Wherein adequate provision shall be made for the minorities to profess and practise their religions and develop their cultures;
Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;
Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith worship and association, subject to law and public morality;
Wherein adequate provisions shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;
Wherein the independence of the Judiciary shall be fully secured;
Wherein the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air, shall be safeguarded;
So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity."
A perusal of the objective Resolution shows that the founding father of this country resolved that the principles of democracy, freedom, equality, tolerance and social justice as enunciated by the Islam shall be fully observed. It was further resolved that in the State of Pakistan fundamental rights including equality of Status, of opportunity and before law, social economic and political justice and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality shall be guaranteed. Thus, under the Article 2A, the objective resolution, which is now substantive part of the Constitution envisages that the social justice as enunciated by Islam shall be fully observed and social and economic justice to every citizen shall be guaranteed.
It is provided in Article 227 of the Constitution that all existing laws shall be brought in conformity with the Injunction of Islam, as laid down in Holy Our'an and Sunnah.
It is further provided under Article 14 that the dignity of man and, subject to law, the privacy of home is inviolable.
Admittedly, the Pakistan is a Islamic State and the Constitution enjoins upon the State to observe the principles of social justice as enunciated by the Islam. It is one of the basic duty of an Islamic State to help and provide sufficient means to every citizen to earn his livelihood in respectable manner. We are of the considered view that begging is prohibited (haram) in Islam and, therefore, nobody should be put in a situation that he has no option but to resort to begging to keep his two ends meet. The begging is violative of the dignity of man and, under Article 14 of the Constitution, the dignity of man is to be protected, which is inviolable.
Keeping these principles in view the Federal and Provincial Governments have provided quota for disabled persons in all the Departments and recently disabled persons quota has been introduced even in the C.S. S examination, which is held for recruiting suitable persons on competitive basis for various superior services in the Federal Government. We are of the opinion that if any Department has failed to device a policy for disabled persons, this Court which is saddled with the responsibility of getting the principles contained in the Constitution enforced and protect the rights of the citizen in accordance with the social justice as enunciated in the Holy Quran and Sunnah, is duty bond to exercise its constitutional jurisdiction and issue a suitable writ in this behalf.
It needs no emphasis that in an Islamic welfare State, which Pakistan is in accordance with the Constitution,, it is the responsibility of the State to provide respectable conditions for earning the livelihood.
We have already observed that admittedly the petitioner is a disabled person and if he is asked to compete with other wealthy persons it would amount to negation of his right to earn his livelihood in a respectable manner, and would amount to compel him to resort to begging. It would be violative of the provisions contained in Article 14 and Article 2A of the Constitution.
In the above circumstances, we direct the respondents to issue an allotment order/licence in favour of petitioner in respect of Stall No. 15 at Platform No. 1 Hyderabad Railway Station with effect from 1-6-2005, as Muhammad Aslam, Station Superintendent the Respondent No. 4 has stated that the Stall No. 15 shall be vacated with effect from 31st May, 2005. The petitioner is directed to deposit the amount of Rs. 29,000 for which he had given bid in respect of Stall No. 2 within fifteen days from today. Initially the licence shall be issued to the petitioner for a period of two years and on commencement of second year, there shall be increase of 10 per cent.
Before parting with this order, we would like to observe that the Respondents Nos. 1 and 2 are expected to take a policy decision and provide a quota for disabled persons so that all such persons in the country may earn their livelihood in a respectable manner.
The petition is allowed as above.
(Fouzia Fazal) Petition allowed
PLJ 2006 Karachi 295
Present: Anwar Zaheer Jamali, J.
Dr. HASAN MAHFUZ JALISI--Plaintiff
versus
KHAWAJA MOINUDDIN and 2 others--Defendants
Suit No. 1148 of 2003, C.M.As. Nos. 1211 of 2005 and 6571 of 2004, decided on 21.11.2005.
Civil Procedure Code, 1908 (V of 1908)--
KHAWAJA MOINUDDIN and 2 others. [P. 300] A
PLD 1968 Kar. 154 and 1989 MLD 21 ref.
Civil Procedure Code, 1908 (V of 1908)--
----O. I, R. 10(2) & S. 151--Application for joining a person as defendant in the suit on the ground that during the pendency of the suit said person had purchased suit property from the defendants, and thus his presence in the proceedings of the suit was necessary--Validity--Held: Joining of proposed defendant would have been relevant and material in case the plaintiff had sought the relief of specific performance of agreement of sale--Plaintiff having filed the suit only for seeking refund of his earnest money from the defendants and damages, no case for joining of subsequent purchaser of suit property/proposed defendant as party in the suit, was made out. [Pp. 300 & 301] B & C
Mr. Khurshid A. Hashmi, Advocate for Plaintiff.
Mr. Kamal Azfar, Advocate for Defendants Nos. 1 and 2.
Mr. Salahuddin Ahmed, Advocate for proposed Defendant.
Date of hearing: 21.11.2005.
Order
C.M.A. No. 1211/2005.
By this application under Order VI Rule 17 read with Section 151, C.P.C., plaintiff has sought following amendments in the plaint;-
"(a) Title to be read as:
Suit for Declaration, Specific performance, Permanent Injunction, Cancellation of Documents, Recovery and Damages.
(b) After Para-17, following para. to be added as Para-17(A):
17A. That the Hon'ble Court was graciously kind to call the parties to the chambers and ask them to settle the matter amicably and inconsequence thereof, the Plaintiff enhanced his offer from Rs. 21,000,000 to Rs. 24,000,000 and as such in view of the enhanced price, he manifested his intention/will for the specific performance of the said Agreement of Sale but the Defendants Nos. 1 and 2, with mala fide intentions in utter disregard of the law and established norms, sold the same to the proposed Defendant as reliably learn on a much lesser price vis-a-vis Plaintiff's enhanced price.
(c) Prayers to be read as:
(A) Declare that the Defendants 1 and 2 failed to fulfil their contractual obligations under the Agreement of Sale in question and in breach thereof, sale of the suit property to the proposed Defendant is prime facie illegal, mala fide and liable to be set aside.
(B) Direct the Defendants 1 and 2 to execute the conveyance deed pertaining to the suit property, favouring plaintiff, handing over possession thereof, alongwith title documents of the property in question.
OR
In the event of Defendants 1 and 2 failing to comply, then the Nazir of this Hon'ble Court be directed to execute the same.
(C) Cancellation of Conveyance Deed registered with Sub-Registrar T-Div-II-A, Karachi, having Registration No. 3792, Book-1, Addl: dated 6-7-2004, pertaining to the suit property, executed by Defendants Nos. 1 and 2 favouring Mr. Shahid Malik son of Noor Muhammad, the proposed Defendant No. 4.
(D) Alternatively in the present scenario award damages jointly or severally, against the Defendants to the tune of Rs. 5 Million for suffering, mental torture, undergoing inconvenience/hassles, and recovery of Rs. 2.1 Million with profit on both the amounts at 14% till the realization of decretal amount.
(E) Recovery of Anticipatory Rent at Rs. 150,000 (Rupees One Lac Fifty Thousand) per month from 1st August, 2003 till the disposal of the suit and the profit thereon, at 14% till the realization of decreetal amount.
(F) Permanent Injunction against the defendants restraining them from further disposing of, alienating or creating third party interest in the suit property.
(G) Cost of the suit.
(H) Any other relief/reliefs which this Hon'ble Court may deem fit and proper in the circumstances of the case.
Prayed accordingly in the best interest of Justice."
"(A) Declare that the defendants failed to fulfil their contractual obligations under the agreement of sale in question.
(B) declare that the Plaintiff has a lien on the suit property to the extent of his claim.
(C) A permanent prohibitory injunction against the defendants restraining them from disposing of, alienating or creating third party interest in the suit property.
(D) (i) Direct the Defendants to return Rs. 2,100,000 (Rupees Twenty One Lacs) alongwith 14% per cent. interest/mark-up, till the finalization of suit or the realization of Plaintiff's claim.
(D) (ii) Damages to the tune of Rs. 5,000,000 (Rupees Five Million).
(D) (iii) Anticipatory rent at Rs. 150,000 per month, from 1st August, 2003 till the disposal, of the suit.
(E) Cost of the suit.
(F) Any other relief/reliefs which this Hon'ble Court may deem fit and proper in the circumstances of the case."
For grant of above reliefs, precisely, the case of the plaintiff is that on 14-7-2003 he has entered into an agreement of sale with the' Defendants Nos. 1 and 2 in respect of Plot No. 103/1 admeasuring 1000 Sq. Yards, together with double storeyed Bungalow constructed thereon, situated on 25th Street, Phase-VI, DHA, Karachi, for a total sale consideration of Rs. 21,000,000 (Rupees two crores ten lacs), and has paid them Rs. 2,100,000 (Rupees twenty one lacks) as part payment towards such sale agreement.
Subsequently, despite best efforts of the plaintiff, due to the non-cooperation and non-fulfilment of contractual obligations by the Defendants Nos. 1 and 2 such transaction of sale could not be finalized, whereupon, ultimately, plaintiff, through his counsel served legal notice dated 9-9-2003, to them, cancelling the said agreement and calling upon them for the refund of earnest money in the sum of Rs. 2.1 million with 14% mark-up from the date of its payment and also damages at Rs. 150,000 per month from 12.7.2003. At the time of institution of instant suit in addition to such. claims plaintiff also claimed damages in the tune of Rs. 5.0 million against the Defendants Nos. 1 and 2. The peculiarity of this suit is that plaintiff consciously and deliberately, in line of his instance in the notice dated 9.9.2003, did not seek specific performance of the agreement of sale dated 14.7.2003.
The Defendants Nos. 1 and 2 in their joint written statement, not only challenged the maintainability of the suit on various grounds, but also disputed the assertion of the plaintiff as regards shifting of responsibility of non-finalization of agreement of sale dated 14-7-2003 due to their fault. They also disputed the claim of the plaintiff for refund of earnest money to them, as well as other claims made by plaintiff.
It seems that during the pendency of this suit, before passing of detailed order dated 14-5-2004 on C.M.A. Nos. 5909 and 6397 of 2003, efforts were made by the Court for some amicable settlement, of dispute between the parties, which failed, therefore in terms of such order the Defendants Nos. 1 and 2 deposited the earnest money of Rs. 21,00,000 with the Nazir of this Court, which now appears to have been invested in some profit bearing saving scheme of the Government. As regards other condition imposed in the order dated 14-5-2004, for furnishing of surety in the sum of Rs. 50,00,000, such order was challenged by the Defendants Nos. 1 and 2 in appeal, being H.C.A. No. 106 of 2004, wherein order dated 14-5-2004, to that extent has been suspended, while the appeal is stated to be still pending. It appears that thereafter the Defendants Nos. 1 and 2 sold the suit bungalow to the proposed defendant Shahid Malik, who now claims himself to be its bona fide purchaser for valuable consideration and without notice of any alleged disability of Defendants Nos. 1 and 2 to sell the suit property.
It further seems that as a second thought, during the pendency of this suit, the plaintiff made up his mind to seek specific performance of the agreement of sale dated 14-7-2003, though, as evident from the language of the notice dated 9-9-2003 and the averments of the plaint, he has already given up such relief, and unilaterally revoked/cancelled the sale agreement, and with this object the instant application seeking amendments in the plaint for adding the relief of specific performance in the suit has been moved by the plaintiff.
The proposed amendments sought in the plaint have been strongly opposed by the Defendants Nos. 1 and 2 for the following reasons;-
"(i) The proposed amendments are not necessary for determining the real question in controversy between the parties and in this case the Plaint and the Written statement have been filed and the only question involved is, whether the plaintiff is entitled to the return of the earnest money and/or damages.
(ii) The proposed amendments would introduce a totally different, new and inconsistent case.
(iii) The proposed amendments are not in good faith and unduly belated. The Plaintiff cannot be allowed to change the entire complexion of the suit.
(iv) Since the property has been sold after the compliance of the order for deposit of Earnest Money with the Nazir of this Honourable Court in H.C.A.No. D-106 of 2004, the relief of specific performance cannot be granted."
Mr. Khurshid Hashmi learned counsel for the plaintiff while arguing this application for amendment in the pleadings frankly conceded that even before filing the present suit for Declaration, Permanent Injunction and Damages, the plaintiff by way of his legal notice dated 9-9-2003 addressed to the Defendants Nos. 1 and 2 has given up his right to claim specific performance of agreement of sale dated 14-7-2003 and it was in furtherance to such firm stand taken by him earlier that he has given up the relief of specific performance at the time of institution of present suit. Learned counsel, however, strongly contended that as it can be verified from the contents of the order dated 14-5-2004, subsequently the plaintiff was willing to seek specific performance of the agreement of sale dated 14-7-2003 and for this purpose even he was extended his offer from Rs. 21 million to Rs. 24 million, so that further litigation in the matter may be avoided. But it was due to the inflexible attitude of the Defendants Nos. 1 and 2 that such offer could not materialize.
Learned counsel lastly contended that in order to bring all the controversies involved in relation to the agreement of sale dated 14-7-2003 it will be just, equitable and proper that the proposed amendments sought through listed application may be allowed to enable the plaintiff to seek specific performance of the agreement dated 14-7-2003.
Mr. Kamal Azfar learned counsel for the Defendants Nos. 1 and 2 during the course of his arguments did not dispute that the provisions of Order VI Rule 17 C.P.C., which have been provided to enable a party to seek amendments in the pleadings, are to be applied liberally to meet the ends of justice. But, he added that at the same time such amendments cannot be allowed, which are mala fide, or will change the whole nature or character of the suit to the prejudice of the opposite party. He further submitted that once the plaintiff has given up the relief of specific performance with reference to the agreement of sale dated 14-7-2003, by way of allowing the proposed amendments in the pleadings he cannot be permitted to set up an absolutely inconsistent case in his plaint, which will totally change the nature of suit. To fortify his submissions, learned counsel has placed reliance on the following cases:-
(1) Ardeshir H. Mama v. Flora Sassoon (AIR 1928 PC 208)
(2) K.S. Sundaramayyar v. K. Jagadeesan (AIR 1965 Madras 85)
(3) Anwar Ali Khan v. A. Sattar Abu Bakar (PLD 1968 Karachi 154)
(4) Shama Enterprises (Pvt.) Ltd. v. Malik Ghulam Sarwar (1989 MLD 21)
In the case of Ardeshir H. Mama (Supra), it was held by the Privy Council that for seeking the relief of specific performance party has to show his readiness to do his part of the contract up to the passing of decree. In the case of K.S. Sundaramayyar (Supra) with reference to Section 24(b) of the Specific Relief Act, it was observed that if the purchaser has claimed damages on the footing of breach of contract by the seller, no suit for specific performance thereafter can be maintained by him. In the case of Anwar Ali Khan (Supra), learned Single Judge of this Court held that when the purchaser by his letter addressed to the seller has claimed damages and refund of earnest money such letter would establish waiver of agreement, therefore, specific performance of such contract cannot be allowed. In the case of Shama Enterprises (Private) Ltd. (Supra), a Division Bench of this Court has reiterated the view that the party seeking specific performance of the contract has to show his readiness and willingness to perform his part of the agreement in respect of which specific performance was sought.
I have carefully considered the arguments advanced by learned counsel for the parties and perused the case record. There is no denial of the fact that in the present suit, even before its institution, the plaintiff has given up his right to seek specific performance of the agreement of sale dated 14.7.2003, as evident from the language of his notice dated 9-9-2003. The instant suit has also been filed by the plaintiff on same line inasmuch as in the plaint the plaintiff has consciously and deliberately only sued the defendants for the reliefs as reproduced above, not mentioning therein his claim of specific performance, arising out of the agreement of sale dated 14.7.2003. In such circumstances, the submissions of Mr. Kamal Azfar learned counsel for the Defendants Nos. 1 and 2 that the proposed amendments sought in the pleadings by the plaintiff are mala fide, being tempted due to the rapid increase in the value of suit property, and further the proposed amendments, if allowed, will change the whole nature and character of the suit have force. Such arguments of Mr. Kamal Azfar are also fully supported from the case-law cited by him at the bar.
For the foregoing reasons, I had found no substance in this application, which was accordingly dismissed by short order passed on 14.11.2005.
C.M.A. No. 6571 of 2004.
By this application under Order I, Rule 10(2) read with Section 151, C.P.C. moved by the plaintiff, he has prayed for joining Shahid Malik son of Noor Muhammad as defendant in the suit, on the ground that during the pendency of this suit said defendant has purchased the suit property from the Defendants Nos. 1 and 2, and thus his presence in the proceedings of the present suit is necessary.
On notice, Defendant No. 1 has filed his counter-affidavit so also the proposed defendant Shahid Malik wherein they have strongly opposed this application, mainly for the reason that the plaintiff by way of filing the present suit for Declaration, Permanent Injunction and Damages has already given up his claim for specific performance in respect of suit property subject-matter of sale agreement dated 14-7-2003, therefore, joining of proposed defendant Shahid Malik, the subsequent purchaser of property, to the proceedings of the present suit will be futile and unwarranted by law.
In the context of relief sought in the application I have heard the arguments of learned counsel and perused the case record and find force in the submission of Mr. Salahuddin Ahmed, counsel for the proposed defendant Shahid Malik that joining of proposed defendant would have been relevant and material in case the plaintiff has sought the relief of specific performance of agreement of sale dated 14-7-2003. But since the plaintiff has filed this suit only for seeking refund of his earnest money from Defendants Nos. 1 and 2 and damages, therefore, no case for joining of subsequent purchaser of suit property/proposed defendant as party in this suit is made out.
In view of the above stated facts and circumstances of the present case, the instant application for joining the new purchaser of the property Shahid Malik as co-defendant in the suit is devoid of merits.
Foregoing are the reasons for the short order passed on 14-11-2005.
(Fouzia Fazal) Order accordingly
PLJ 2006 Karachi 302
Present: Muhammad Moosa K. Leghari, J.
ALLAH DINO--Applicant
versus
HAJI AHMED through LEGAL HEIRS and 3 others--Respondents
Revision Appl. No. 98 of 1995, decided on 2.12.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O. VIII. R. 10--Suit for declaration and permanent injunction--On failure of party to file written statement within the time fixed by the Court--Effect--Court may pronounce judgment against such party, or make such order in relation to the suit as. it thinks fit--Order VIII, R. 10, C.P.C. clearly demonstrates that in every case in which written statement is not filed, the Court is not bound or required to pronounce the judgment as it is not stipulated by the law--By using word "may" in O.VIII, R.10, C.P.C., it has been left open to the Court, that on consideration of the material annexed with the plaint, either it should pronounce the judgment or may make such other order it deems fit--Court has to take into consideration the facts and circumstances of each case and keeping in view the circumstances the Court may make such order as it thinks fit. [Pp. 304 & 306] A & B
1987 SCMR 1365 and SCMR 2527 ref.
Specific Relief Act, 1877 (I of 1877)--
----Ss. 42 & 55--Civil Procedure Code, (V of 1908), O. VIII, R. 10--Suit for declaration and permanent injunction--Ex-parte proceedings against defendants--Plaintiff filed application wherein he requested the Court to dispose of the suit under O.VIII, R.10, C.P.C. and reason stated in the application for passing the judgment by trial Court was that the plaint was verified on oath--Application further stated that plaintiff was ill and, as such, ex parte proof could not be filed--Plaintiff did not request for extension of time--Validity--Prudent view which could be taken was that the applicant/plaintiff himself did not want to file affidavit in ex-parte proof and wanted his suit to be disposed of under O.VIII, R.10, C.P.C.--When the plaintiff himself prayed the Court to proceed to pronounce the judgment without producing any evidence or documents, the trial Court was justified in arriving at a conclusion that the documents placed on record were inadmissible in evidence--Plaintiff, who approached the Court had to succeed on the strength of his own case and not on the weakness of the other side--Merely because the defendants were proceeded ex parte, ipso facto, would not be legal and valid ground to decree the suit of the plaintiff as it was the plaintiff who had to prove his case. [P. 307] C
Limitation Act, 1908 (IX of 1908)--
----S. 5--Specific Relief Act (I of 1877), Ss. 42 & 55--Civil Procedure Code (V of 1908), S. 96--Suit for declaration and mandatory injunction--Condonation of delay in filing appeal was claimed on medical grounds--Validity--If condonation of delay was claimed on medical grounds, the medical certificate must disclose that the person concerned was bedridden and was unable to move--Medical certificate produced by the appellant alongwith the application for condonation of delay did not contain the address of the doctor or that of his clinic, reading of the certificate showed that according to the doctor the patient had recovered and was able to "join his duty" and certificate did not disclose that the appellant, who was allegedly suffering from Sciatica was bedridden for the entire period and that he was unable to move or even communicate the instructions to the advocate to prefer an appeal--Jurisdiction exercised by the appellate Court in not condoning the delay in circumstances, was neither illegal nor arbitrary thus no interference was called for. [Pp. 307 & 308] D & E
1980 SCMR 722 ref.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction of High Court--Scope and object--Revisional jurisdiction of High Court is always discretionary and equitable in nature and no party is entitled to it as of right. [P. 308] F
Mr. Aijaz Ali Hakro, Advocate for Applicant.
Mr. Naimatullah Soomro, Advocate for Respondents.
Date of hearing: 2.12.2005.
Judgment
Through this Revision Application the applicant has called in question the judgment dated 6-4-1995 and decree dated 14-5-1995 passed by District Judge, Hyderabad, in Civil Appeal No. 288 of 1994, whereby the judgment dated 27-4-1994 and decree dated 24-5-1994, passed in F.C. Suit No. 108 of 1992, by Ill-Senior Civil Judge, Hyderabad, was maintained.
(a) It may be declared that Entry No. 35 Ann:P. dated 21-3-1990 in respect of S. No. 106/1-2-5 admeasuring 9-01 acres Deh Bhanoki Taluka Matiari of plaintiff in favour of Defendant No. 1 and orders dated 16-3-1992 passed on application 16-3-1992 of Defendant No. 2 by Defendant No. 3 are illegal ab initio, void in excess of jurisdiction without lawful authority based on mala fide and they may be set aside.
(b) The permanent injunction be issued against the defendant restraining them through themselves, their servants subordinates, agents, and assigns from interfering with the proprietary rights of the plaintiff and his lessee Kodoo Solangi and from implementing the order dated 16-3-1992 passed on application dated 16-3-1992. .
(c) The cost of the suit be borne by the defendants and any other relief deemed just and proper be granted to the plaintiff.
Despite service the respondents/defendants failed to appear before the trial Court and did not file any written statement, therefore, they were declared ex parte. The applicant/appellant/plaintiff was directed to file his affidavit in ex parte proof. The applicant/plaintiff instead prayed the Court for passing appropriate judgment on consideration of the material placed on the record. Learned trial Court, however, dismissed the suit.
Being dissatisfied with the said judgment and Decree the applicant/plaintiff preferred an appeal. The appeal was heard by District Judge, Hyderabad, who after hearing the parties arrived at a conclusion that the appeal was barred by time and, therefore, dismissed the same.
Learned counsel for the applicant has attacked the judgments passed by the two Courts below. It is contended that the plaint in the suit filed by the applicant/plaintiff was verified on oath. It was supported by photostat copies of the documents. Since the defendants in the suit were ex parte and no written statement in rebuttal of the claim of the plaintiff was filed, therefore, in all circumstances the trial Court ought to have decreed the suit of the plaintiff as provided under Order VIII Rule 10 C.P.C. He further contended that the affidavit in ex parte proof could not be filed due to continuous illness of the plaintiff as the plaintiff was suffering from Sciatica. Thus the judgment dismissing the suit was untenable.
It was further contended that on account of continuous illness, the applicant could not file the appeal in time but moved an application under Section 5 of the Limitation Act, which was supported by Medical Certificate of a qualified Medical Officer. The applicant/appellant had shown a sufficient cause for delay in filing of the appeal which appellate Court ought to have considered more particularly when there was no counter-affidavit. It was submitted that in the affidavit filed in support of application for condonation of delay the applicant/appellant has explained the delay of each day. Thus the dismissal of appeal on the point of limitation was unwarranted. On the above premises it was contended that the Judgments passed by both the courts below being without jurisdiction were untenable.
On the other hand it was contended on behalf, of the respondents that it was not the requirement of Order VIII Rule 10 C.P.C. that in all circumstances, the Court was required to decree the suit of the plaintiff. In the present case the plaintiff was directed by the trial Court to file an affidavit in ex parte proof which he failed to file without assigning any reason. The trial Court after proper discussion dismissed the suit of the plaintiff as the photostat copies of the documents were inadmissible in evidence. It was further contended that the appeal was hopelessly time-barred and that the Medical Certificate was improper and thus was rightly not believed by the appellate Court. If was further contended that the limitation had created the vested right in favour of the respondents/defendants and that the applicant has failed to account for delay of each and every day. It was pleaded that the judgments passed by courts below were legal and proper.
In support of their contentions both the learned counsel had referred to certain case-law.
The contentions put forward by learned counsel for the parties have been given due and proper consideration, the judgments passed by the two courts below have been examined in light of the relevant case-law and the material available on the record.
In order to properly appreciate the contention raised by learned counsel for the applicant with regard to applicability of Order VIII Rule 10 C.P.C. it will be pertinent to reproduce the same which is as under:
"10. Procedure when party fails to present written statement called for by Court.--Where any party from whom a written statement is so required failed to present the same within the time fixed by Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."
It will be pertinent to reproduce hereunder the rule laid down by the apex Court in the case of Sakhawatuddin v. Muhammad Iqbal (1987 SCMR 1365) which reads as follows:
"Rule 10 is in two parts. No doubt under the first part a judgment can be pronounced against the defendant, but it will be pronounced only if it can be so done under the law. For example, if the suit is for enforcing a contract or obtaining any other relief which is prohibited by law expressly or impliedly, the judgment could not be pronounced. Similarly no decree could be passed if there is no cause of action shown in the plaint or the material placed before the Court or relied upon by the plaintiff even if not in the form of evidence will make it a case of no evidence (if the trial is taken to its logical ends). Hence, in all such cases and other similar cases it will be impermissible for the Court to proceed under the first alternative. The proper course then would be to proceed under the second alternative. It will be in rare cases, when, on account of the material placed on record that it would not only be legal but also just and fair, on the merits of the case, that judgment is pronounced it would not be proper to proceed under the first part. Like Rule 12, Rule 10 also creates a liability and it is not mandatory for the Court to pronounce judgment or strike off the defence. The matter being in the discretion of the Court the penalty should not be imposed without a compelling reasons" but as emphasised above that too not without satisfying the conditions as are being discussed e.g., even then it is not mandatory to pronounce judgment without satisfaction of the Court that it is good case on merits for doing so."
Same principle was reiterate in the case of The Secretary, Board of Revenue, Punjab, Lahore and another v. Khalid Ahmad Khan 1991 SCMR 2527.
The perusal of the Judgment passed by the trial Court reveals that an application was filed by Advocate for the plaintiff/applicant wherein he requested the Court to dispose of the suit under Order VIII, Rule 10, C.P.C. The reason for passing such judgment as mentioned in the application was that the plaint was verified on oath. It appears that in the said application moved on behalf of the plaintiff/applicant it was stated that the plaintiff was reported to be ill and, as such, ex parte proof could not be filed. In such situation, the prudent view which could be taken was that the applicant/plaintiff himself did not want to file affidavit in ex parte proof and wanted his suit to be disposed of under Order VIII, Rule 10, C.P.C. It is not the case of the applicant/plaintiff that he requested the Court for grant of time to file affidavit in ex parte proof due to illness of the plaintiff/applicant and that his such prayer was declined. In the circumstances, when the plaintiff/applicant himself prayed the Court to proceed to pronounce the judgment without producing any evidence or documents, the trial Court was justified in arriving at a conclusion that the documents placed on record were inadmissible in evidence. It is a well-settled proposition of law that the plaintiff who approaches the Court has to succeed on the strength of his own case and not on the weaknesses of the other side. Merely because the defendants were ex parte ipso facto would not be legal and valid ground to decree the suit of the plaintiff as it is the plaintiff who has to prove his case.
Regarding the Judgment passed by the appellant Court, it must be stated that the appeal filed by the appellant was admittedly barred by time. As evident from the perusal of the judgment of the appellate Court, the decree was prepared on 24-5-1994, the application for supplying the certified copies was made on 22-11-1994 which was delivered to the appellant on 23.11.1994. The appeal was however, filed on 27-11-1994. So far as the application for condoning the delay in filing the appeal is concerned, as mentioned in ground No. 3 of the affidavit filed in support to the application under Section 5 of the Limitation Act, it reveals that the applicant/appellant was suffering from serious illness of Sciatica from 9-4-1994 to 20-11-1994, he could not move out of his house and remained under treatment of doctor Habibullah Memon, therefore, he could not contact his Advocate and the appeal could not be filed in time. In support of this application a certificate issued by Dr. Habibullah has been placed on record. Learned appellant Court did not believe the medical certificate for which it assigned the reasons which are contained in para. 12 of the judgment which are reproduced here:
"12. I have gone through the medical certificate which was issued on 20-11-1994. The certificate is not on the pad of Dr. Habibullah Memon but it only bears the name of said doctor. It is on the plain paper. The certificate does not show that the appellant was advised complete bed rest but from the certificate it appears that from 9-4-1994 to 20-11-1994 the appellant was suffering from Sciatica. The disease was not such where the appellant was not able to move or contact his Advocate. Therefore, this certificate has not helped the appellant in any manner. Moreover there is no affidavit of doctor to support this certificate. Mere production of certificate will not be enough to hold that this certificate was properly issued. In order to prove this certificate, the appellant should have filed the affidavit of said doctor which he has failed to do so."
"The question whether limitation should not be condoned lies within the discretion of the authority before whom a matter is agitated and this discretion cannot be interfered with unless it has been exercised illegally or arbitrarily. This is not the case here. The result is that this petition must, therefore, fail which is dismissed hereby."
It is settled proposition of law that condonation of delay if claimed on medical grounds, the medical certificate must disclose that the person concerned was bedridden and was unable to move. As observed by the appellate Court the medical certificate produced by the appellant alongwith the application did not contain the registration number of the doctor who treated the applicant, even it did not contain the address of the doctor or that of his Clinic. The reading of the certificate shows that according to the doctor the patient had recovered and was able to 'join his duty'. The certificate does not disclose that the applicant who was allegedly suffering from Sciatica was bedridden for the entire period, and that he was unable to move or even communicate the instructions to the Advocate to prefer an appeal.
Above discussion will lead to the conclusion that the jurisdiction exercised by the appellate Court in not condoning the limitation was neither illegal nor arbitrary thus no interference was called for.
It needs no emphasis that the revisional jurisdiction of this Court is always discretionary and equitable in nature and no party is entitled to it as of right. The object of High Court while exercising its discretionary jurisdiction has always been to foster the justice, preserve the rights of the parties and to right a wrong. Precisely the discretionary revisional jurisdiction is meant to correct the errors and to check the mistakes and lapses committed by the Courts below so as to ensure that of the judgment/orders passed by the lower Courts were not marred by lack of jurisdiction and to present illegal and irregular exercise of jurisdiction.
The above discussion adequately shows that no perversity or illegality, and/or, instance of lack of jurisdiction or illegal and irregular exercise of jurisdiction has been noticed. The judgments impugned in the revision application are unexceptionable and thus need no interference. Consequently the revision application stands dismissed.
(Fouzia Fazal) Application dismissed
PLJ 2006 Karachi 309
Present: Faisal Arab, J.
ANWARUL HUDA and another--Plaintiffs
versus
FAHIMUL HUDA and another--Defendants
Suit No. 1452 of 1999 and C.M.A. No. 1257 of 2004, decided on 29.11.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 10--Sindh Civil Courts (Amendment) Ordinance (XXX of 2002), S. 5--West Pakistan Civil Courts Ordinance (II of 1960), S. 9--Court Fees Act (VII of 1870), S. 7--Jurisdiction of Courts cannot be ousted by undue overvaluation of claims made in a suit as it amounts to fraud upon law--Court should not allow a plaintiff to evade the law relating to the matters of jurisdiction--Where it is found that plaintiff has deliberately exaggerated his claim in order to bring his suit in a Court which otherwise would not have jurisdiction, the plaint should be returned for presentation before Court of appropriate jurisdiction. [P. 311] A & B
Court Fees Act, 1870 (VII of 1870)--
----S. 7(iv)(c)--Interpretation of--Suit for declaration--Court-fees--Provision of S. 7(iv) has given discretion to the plaintiff to value his suit as he deems appropriate--Words used in concluding part of S. 7(iv)(c) of Court Fees Act, 1870 are "according to the amount at which the relief is valued in the plaint" and "the plaintiff shall state the amount at which he values the reliefs sought"--Object of entrusting the plaintiff with such an absolute discretion in cases covered by S. 7(iv) appears to be that it was difficult for the lawmakers to provide basis for valuing the suit covered by S. 7(iv)(c) with any precision--Once the plaintiff puts his own valuation to a suit covered under S. 7(iv)(c), the jurisdiction of the Court where suit is to be tried is determined and in such cases defendant does not have the option to seek interference of the Court for re--determination of the value in order to seek change in the 'forum before which suit is to be tried as the Court cannot question plaintiff's valuation, however, arbitrary it may be--Where, however, the plaintiff puts value for the purposes of declaration and also for the purpose of other reliefs it is the cumulative value of all the reliefs which determines the jurisdiction of the Court before which the suit is to be filed. [P. ] C & D
Civil Procedure Code, 1908 (V of 1908)—
----O.XLI, R. 1--Court Fees Act (VII of 1870), S. 17--Multifarious suit--Computation--Court fees--Aggregate value of only such reliefs is to be taken into account which are distinct and final in nature--Where relief is not distinct from other and appears to be only superfluous or not arising out of the suit, the same cannot be joined together to determine value for purposes of jurisdiction--Only such reliefs, decision on which results in final resolution of a controversy, are to be valued for the purposes of valuation of a suit and not the reliefs which are purely of interim nature and are sought till the disposal of the final controversy in suit--Relief of receivership, which though arising in the suit, being purely of interim nature, cannot be made basis for the purposes of valuing a suit. [P. ] E
Court Fees Act, 1870 (VII of 1870)--
----S. 7(iv)(c)--Specific Relief Act (I of 1877), S. 42--Suit for declaration--Aggregate computation--Section 7(iv)(c) only speaks about seeking relief of declaration and consequential relief, it does not speak of the nature of declaration or of the consequential relief, which a plaintiff has to seek in a suit--Nature of relief entirely depends upon the grievance, which the plaintiff brings to the Court and is discernible from the contents of the plaint--All such reliefs, which flow from the contents of the plaint are legally permissible and can be sought by a plaintiff--No restrictions can be imposed on the nature of declarations, which a plaintiff can seek as long as they are lawful and arise from the contents of plaint. [P.] F
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Courts Fees Act (II of 1870), S. 7(iv)(c)--Suit for declaratory relief for dissolution of partnership--Claim of forgery of documents--Value of Court-fee--Principles--Plaintiff is entitled to ask for any relief to which he is entitled under the law which relates to his claim either to any legal character or to a right in a property--In order to seek declaration or consequential relief it is not necessary that such reliefs must find mention in S. 7(iv)(c), Court Fees Act--Plaintiffs are therefore justified in seeking declaratory reliefs with regard to dissolution of the firm or for declaration with regard to their claim of forgery of documents. [P. ] G
PLD 1981 Kar. 210 fol.
Mr. Monawwer Ghani, Advocate for Plaintiffs.
Mr. Zahid Hamid, Advocate for Defendant No. 1.
Mrs. Sofia Saeed Shah, Advocate for Defendant No. 2.
Date of hearing: 17.11.2005.
Order
This is an application filed under Section 151, C.P.C. read with Section 5 Civil Courts Amendment Ordinance, 2002. Through this application the Defendant No. 1 has sought directions for transfer of the present suit for trial to Civil Court on the ground that the plaintiff has overvalued the suit as its correct value is less than three million rupees.
"8. That for the purposes of Court-fees and jurisdiction the suit is valued at Rs. 1,500,000.00 for declaration, for accounts at Rs. 1,000,000.00 for dissolution at Rs. 500,000.00 and for the relief of Receivership at Rs. 50,000.00. The Plaintiffs have paid maximum Court Fees of Rs. 15,000.00 thereon."
It is contended by Defendant No. 1's counsel that the aggregate value of the suit in paragraph 8 of the plaint has been shown at Rs. 3,050,000 which include Rs. 50,000 as value for the relief of Receivership. He submitted that the relief of Receivership being of interim nature, the same could not be made basis for valuation of the suit. It was therefore contended that when the valuation of Rs. 50,000 for the relief of Receivership is ignored, the residual value of the suit become Rs. 3,000,000 only, making it triable before Civil Court under Section 5 of the Civil Courts (Amendment) Ordinance No. XXX (Sindh) of 2002. He also contended that the plaintiffs have also overvalued the reliefs of declaration.
It is a settled principle that jurisdiction of Courts cannot be ousted by undue overvaluation of claims made in a suit as it amounts to fraud upon the law. The Courts should not allow a plaintiff to evade the law relating to the matters of jurisdiction. Where it is found that plaintiff has deliberately exaggerated his claim in order to bring his suit in a Court which otherwise would not have jurisdiction, the plaint should be returned for presentation before Court of appropriate jurisdiction.
In the present suit reliefs for declaration and accounts of a partnership concern has been sought. I will therefore first examine the relevant provisions of the Court Fees Act in order to see whether the plaintiffs have committed any legal error in the valuation of the suit. The relevant provisions are sub-sections (iv)(c) and (t) of Section 7 of the Court Fees Act which read a follows:
"Section 7 of the Court Fees Act
(i)
(ii)
(iii)
(iv) In suits
(a)
(b)
(c) For a declaratory decree and consequential relief.--To obtain a declaratory decree or order, where consequential relief is prayed, .
(d)
(e)
(f) for accounts: for accounts:
according to the amount at which the relief sought is valued in the plaint or memorandum of appeal;
in all such suits the plaintiff shall state the amount at which he values the reliefs sought.
Reading all sub-sections of Section 7 it becomes apparent that in contrast to other sub-sections, sub-section (iv) of Section 7 has given discretion to the plaintiff to value his suit as he deems appropriate. The words used in the concluding part of sub-section (iv) of Section 7 which are underlined by me are "according to the amount at which the relief is valued in the plaint" and "the plaintiff shall state the amount at which he values the reliefs sought". The object of entrusting the plaintiff with such an absolute discretion in cases covered by sub-section (iv) of Section 7 appears to be that it was difficult for the lawmakers to provide basis for valuing the suit covered by the said sub-section with any precision. Thus, once the plaintiff puts his own valuation to a suit covered under sub-section (iv) of Section 7, the jurisdiction of the Court where suit is to be tried is determined. In such cases the defendants do not have the option to seek interference of the Court for re-determination of the value in order to seek change in the forum before which suit is to be tried as the Court cannot question plaintiff's valuation, however, arbitrary it may be.
It is also a settled principle that where a plaintiff puts value for the purposes of declaration and also for the purpose of other reliefs, it is their cumulative value of all the reliefs which determines the jurisdiction of the Court before which the suit is to be filed. Section 17 of the Court Fees Act reads as follows:
Section 17 of Court Fees Act
Nothing in the former part of this Section shall be deemed to affect the power conferred by the Code of Civil Procedure, Section 9.
Aggregate value of only such reliefs are to be taken into account which are distinct in nature. Where one relief is not distinct from other and appears to be only superfluous or not arising out of the suit, the same cannot be joined together to determine value for the purposes of jurisdiction. In the present case none of the reliefs sought by the plaintiff can be regarded as superfluous or not arising in the suit except for the relief of Receivership which though arising in the suit, is purely of interim nature. Only such reliefs, decision on which result in final resolution of a controversy, are to be valued for the purposes of valuation of a suit and not the reliefs which are purely of interim nature and are sought till the disposal of the final controversy in suit. Therefore, such relief cannot be made basis for the purposes of valuing a suit. Thus only such reliefs, which are distinct from the other and are of final in nature are to be combined together for the purposes of valuation of a suit. The value of Rs. 50,000 attributed for the relief of Receivership in the present case is therefore unwarranted and has to be ignored from the aggregate valuation of the suit.
It was also contented by the defendants' Advocate that the value for the relief of declarations with regard to dissolution of partnership and alleged forged documents is not warranted by law as such specific reliefs do not find mention in Section 7 of the Court Fees Act. He therefore contends that value of such declarations be also reduced from the aggregate valuation. This argument is utterly misconceived. Section 7(iv)(c) of the Court Fees Act only speaks about seeking relief of declaration and of consequential relief. It does not speak of the nature of declaration or of the consequential relief, which a plaintiff has to seek in p a suit. The nature of such reliefs entirely depends upon the grievance, which the plaintiff brings to the Court and is discernible from the contents of the plaint. Therefore, all such reliefs, which flow from the contents of the plaint are legally permissible and can be sought by a plaintiff. No restrictions can be imposed on the nature of declarations, which a plaintiffs can seek as long as they are lawful and arise from the contents of the plaint. In this regard reference can be had to the provisions of Section 42 of the Specific Relief Act, which read as follows:
Section 42 of the Specific Relief Act
Discretion of Court as to declaration of status or right. Bar to such declaration.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and, the plaintiff need not in such suit ask for any further relief.
From the bare reading of Section 42 of Specific Relief Act it becomes evident that a plaintiff is entitled to ask for any relief to which he is entitled under the law which relates to his claim either to any legal character or to a right in a property. Therefore, in order to seek declaration or consequential relief it is not necessary that such reliefs must find mention in Section 7(iv)(c) of the Court Fees Act or for that matter in any other provision of the Court Fees Act. The plaintiffs are therefore justified in seeking declaratory reliefs with regard to dissolution of the firm or for declaration with regard to their claim of forgery of documents.
From the above discussion it has become quite apparent that apart from the value attributed to the relief of Receivership all other reliefs have been rightly valued. This brings the value of the suit to exactly three million rupees. However, there is another aspect of the case. Apart from the present suit, there are three other suits, which have been consolidated with the present case. These are Suit No. 1477 of 1999, Suit No. 1696 of 1999 and Suit No. 548 of 2000. The present suit was consolidated with Suit No. 1477 of 1999 and Suit No. 1696 of 1999 vide consent order dated 15-5-2000 passed in Suit No. 1696 of 1999 and Suit No. 548 was later connected with the three suits vide order dated 6-11-2000. In all the four suits common issues are to be framed and common evidence is to be led in terms of consent order dated 15-5-2000 in order to avoid multiplicity of proceedings and conflicting judgments. Furthermore, Suit No. 1477 of 1999 was filed with regard to partition and possession of the shop in which partnership business i.e. Najami's Shoes was being run and the same has been valued at Rs. 6,500,000. In view of the consolidation of Suit No. 1477 of 1999, the joint value of the subject-matter of controversy travels much beyond three million rupees. Therefore there would be no justification to dispatch this case to lower Court for trial. It would also defeat the very purpose for which all the four suits were consolidated, with the consent of the parties.
In addition to the above, another overriding factor which warrants dismissal of the present application is that this Court possesses concurrent jurisdiction alongwith the Civil Courts as was held by the Full Bench judgment of this Court in the case reported in PLD 1981 Karachi 210. In the said reported judgment there is elaborate discussion on the con-currency of jurisdiction of this Court. Therefore, this Court has the power to try the present suit irrespective of its valuation.
In view of the above discussion, this Court can proceed with the trial of the present case and therefore C.M.A. No. 1257 of 2004 is dismissed with no order as to costs.
(Fouzia Fazal) Application dismissed
PLJ 2006 Karachi 315
Present: Faisal Arab, J.
TRADING CORPORATION OF PAKISTAN (PVT.) LTD.--Plaintiff
versus
Messrs SYED CORPORATION--Defendant
Suit No. 558 of 1997, decided on 13.3.2006.
Limitation Act, 1908 (IX of 1908)--
----S. 5 & Art. 177--Civil Procedure Code (V of 1908), O. XXII, R. 4--Death of defendant--Application for impleading heirs of deceased defendant--Limitation--Condonation of delay--Court was permitted under O.XXII, R.4, C.P.C. to proceed with the suit notwithstanding the death of defendant, in the same manner as if he was alive--Provision of law--Such power, however was circumscribed by the condition that in case application for bringing legal heirs on record was not moved within the time prescribed by law under Art. 177 of Limitation Act, Court could proceed with the matter notwithstanding the death of defendant--Provision of law was in nature of an exception to the general law under which no proceedings could be held against a dead person and such law was to be strictly construed--Effect of failure to implead legal representatives of deceased defendant within prescribed time would bar them from taking part in proceedings--Application for impleading legal heirs of deceased defendant was filed after an inordinate delay of about 29 months, whereas Art. 177 of Limitation Act, had provided a period of 90 days for moving said application--Only reason disclosed for seeking condonation of delay was unawareness of pendency of suit, which was not a plausible reason as ignorance of pendency of suit, could not be made ground for condonation of delay--Legal heirs of deceased were debarred from participating in the proceedings--Suit was to be proceeded against dead defendant and any judgment that could be pronounced in the case, would have the same force and effect as if it had been pronounced during lifetime of the deceased. [Pp. 318 & 319] A, B & C
AIR 1932 Bombay 516; PLD 1961 Dacca 693; 2001 CLC 419; PLD 2002 Kar. 315; 1992 MLD 490; 1989 CLC 825 and 1999 MLD 1781 ref.
Mr. Mamoon Hassan, Advocate for Plaintiff.
Mr. Khalid Dawood Pota and Agha Faquir Muhammad, Advocates for Defendant.
Date of hearing: 6.2.2006.
Order
The sole proprietor of the Defendant, Tariq Pervaiz expired during pendency of his suit on 10-7-2001. On 9-2-2004 his counsel moved an application C.M.A. No. 685 of 2004 under Order XXII, Rule 4 seeking the heirs of the decreased to be impleaded as party. Another application C.M.A. No. 3873 of 2004 under Section 5 of the Limitation Act was also moved seeking condonation of delay in moving C.M.A. No. 685 of 2004. In paragraph 4 of the supporting affidavit the reason for seeking condonation was shown to be the unawareness of pendency of this suit.
Mr. Mamoon Hassan, learned Counsel for the Plaintiff opposed the grant of the application for impleading the legal heirs of the deceased on the ground that it is patently barred by time. He further contended that the deceased alongwith his written statement did not file list of his presumptive legal heirs which was a requirement under Order VIII, Rule 13, C.P.C. and hence failure to bring legal heirs on record within the time limited by law, debars them from participating in the proceedings.
The Defendant's counsel at the very outset candidly conceded that no list of legal heirs was filed at the time of filing of the written statement. However, he submitted that delay may be condoned as the legal heirs were themselves not aware of the pendency of this suit and therefore, application could not be moved within prescribed time.
Initially I was of the opinion that the present suit itself is not maintainable as the plaintiff has sued the defendant which is business name of a sole proprietorship concern and a sole proprietorship concern not being legally recognized entity, the Proprietor of a sole proprietorship concern is to be sued in his personal name. However, the learned counsel for the plaintiff contended that law do not permit a suit to be filed in the business name of a proprietorship concern but it certainly allows a plaintiff to sue a proprietorship concern in its business name. In support of his argument he referred to Order XXX, Rule 10, C.P.C. and relied upon Bhagvan Managi Marwadi and others v. Hiraji Permaji Marwadi AIR 1932 Bombay 516, Ismail Haji Sulaiman v. Messrs Hansa Line and another PLD 1961 Dacca 693. The Collector of Customs (Appraisement), Collectorate of Customs, Government of Pakistan Customs House v. Messrs Imran Eenterprises through proprietor and others (2001 CLC 419) and Messrs M.A. Majeed Khan v. Karachi Water and Sewerage Board and others (PLD 2002 Karachi 315). In all the four cited cases it has been held that the proprietorship concern can »be sued in its business name and the only bar is that it cannot sue in such name. Therefore, the learned counsel for the Plaintiff is absolutely right when he maintains that the defendant has been rightly sued and the suit is maintainable.
Adverting to the controversy that the application for impleading the legal heirs of the deceased has become barred by time, the learned counsel for the plaintiff relied upon the case of Bibi Khudeja v. Pir Sarwarduddin Shah reported in 1992 MLD 490. In the said judgment at page 494 it is held as follows:
"It would thus be seen that according to Rule 4, as it originally stood, the burden was on the Plaintiff to implead the legal representatives of the deceased Defendant as parties to the suit failing which, the proceedings in the suit were to abate. However, after the said amendment by the Law Reforms Ordinance, the position has materially altered because although the Plaintiff can proceed with the suit without joining the legal representatives of the deceased defendant, an option has been left with the legal representatives to join the suit proceedings and to make any defence appropriate to their character as legal representatives of the deceased defendant. The afore-stated position has been made clear by sub-rules (2) and (3), the latter being substituted for the original sub-rule (3). Sub-rule (4) was also added through the said amendment though we are not concerned at present with the same. Thus under the newly-added sub-rule (3), if no application has been made for impleading the legal representative the Court may proceed with the suit and notwithstanding the death of the Defendant it may pronounce any order or judgement and the same shall have the same force and effect as if it had been pronounced before the death of the Defendant took place. Now, under Article 177 of the Limitation Act the period prescribed for making such application, which may be made either by the plaintiff or by the legal representatives of the deceased Defendant, is 90 days, which period is to be computed from the date of the death of the deceased Defendant. Consequently, if no application is made either by the Plaintiff or by the legal representatives of the deceased Defendant within the time prescribed by the law, the Court would be obliged to continue the proceedings notwithstanding the death of the Defendant and any judgment or order pronounced thereby would have the same force and effect as provided in sub-rule (3), as pointed out earlier."
Then at page 495 of the above-cited judgment it was held as follows:--
"It is pertinent to note that, as has been pointed out earlier, failure of the Plaintiff to apply for joining the legal representatives will not result into abatement of the suit, whereas, in case of failure of the legal representatives of the deceased Defendant to apply within the time prescribed by the law, they would be debarred from taking part in the proceedings and the suit, in that case, would continue in the name of the dead Defendant. It would therefore, be erroneous to assume that the effect of the said amendment on the Plaintiff or the legal representatives of the deceased Defendant is the same."
In the above-cited judgment which is binding on this Court, reliance was also placed on the case of Mst. Sardar Begum v. Mst. Chiragg Bibi (1989 CLC 825). It has been clearly held in that case that Order XXII, Rule 4, C.P.C. permits the Court to proceed with the suit notwithstanding the death of the Defendant, in the same manner, as if he was alive. This power is, however circumscribed by the condition that in case application for bringing legal heirs on record is not moved within the time prescribed by law under Article 177 of the Limitation Act, the B Court can proceed with the matter notwithstanding the death of the Defendant. This provision is in nature of an exception to the general law under which no proceedings can be held against a dead person and is therefore is to be strictly construed. Thus the effect of failure to implead the legal representative of defendant within prescribed time debars them from taking part in the proceedings.
As to the reasons contained in the application for condonation of delay, learned counsel for the Plaintiff Mr. Mamoon Hassan Advocate has stated that no reasonable ground has been shown. He relied upon Messrs Ahan Saz Contractors v. Pak Chromical Limited (1999 MLD 1781). In the said case it was held that party seeking condonation of delay in filing suit or application was required to explain satisfactorily the delay of each and every day. In the present case the application was moved on 9-2-2004 whereas death took place on 10-7-2001 i.e after an inordinate delay of about 29 months whereas Article 177 of the, Limitation Act provides a period of only 90 days for moving such-application. The only reason disclosed for seeking condonation of delay is unawareness of the pendency of this suit, which is not a plausible reason. Ignorance of the pendency of suit cannot be made ground for condonation of delay. It may be so that the legal heirs were not aware of the pendency of the suit but the law has made it mandatory for a party to a suit to file a list of his or her presumptive legal heirs so that in the event of death of a party, the Court can on its own motion send notice to the legal heirs at the address mentioned in the list. This would have taken care of the situation where the legal heirs were not aware of the proceedings. Having not complied with the requirements of law, the legal heirs have to suffer the consequences provided under the law for the omission committed by their predecessor. Had there been a list of legal heirs filed with the written statement, I would have still condoned the delay in moving the application, as the names of the legal heirs in any case were already on the case file. In such a situation it would have been just a mere formality to make them a party. This being not the case in the present case, the facts of the case reported in 1992 MLD 490 by learned counsel for the plaintiff are fully attracted to the present case and there is no other alternative left with this Court but to dismiss the listed-applications.
In view of the above legal position, legal heirs of the deceased are debarred from participating in the proceeding. Suit is to proceed against the dead Defendant and any judgment that may be pronounced in the present case shall have the same force and effect as if it has been pronounced during lifetime of the deceased. As there is no other defendant to this suit, office is directed to fix the case for final disposal. The plaintiff is directed to file affidavit in ex parte proof before the next date of hearing. Both the listed-applications are dismissed. However there shall be no order as to costs.
(Fouzia Fazal) Applications dismissed
PLJ 2006 Karachi 319 (DB)
Present: Amir Hani Muslim and Sarmad Jalal Osmany, JJ.
SUHAIL AKHTAR ABBASI--Petitioner
versus
Syed AMIR ALI SHAH and 4 others--Respondents
Constitutional Petition No. D-71 of 2006 in C.R. No. D-36 of 2006 (Sukkur), decided on 3.3.2006.
Sindh Local Government Elections Rules, 2005--
----R. 67--General Clauses Act (X of 1897), S. 24-A--Constitution of Pakistan, 1973, Art. 199--Election petition--Order of Election Tribunal allowing application for re--counting of votes--Non--incorporation of arguments of one counsel in such order--Effect--Mere such fact could not be made a ground to declare such order as nullity, unless the order ex facie was without reasons. [Pp. 320 & 321] A & B
Sindh Local Government Elections Rules, 2005--
----R. 67--Constitution of Pakistan (1973), Art. 199--Constitutional election petition--Corrupt practice and disqualification of returned candidate, grounds of--Re--counting of votes--Acceptance of such application by election tribunal while keeping pending election petition--Validity--Such application would not deprive petitioner from agitating other grounds raised in election petition in case if he failed to succeed on basis of re-count--Laws did not debar election tribunal from passing such order--Constitutional petition was dismissed. [P. 322] C & D
Words & Phrases by Mian Muhibullah Kakakhel Vol. II, Edn. 1996 and 1998 SCMR 2268 ref. 2005 SCMR 1699 distinguished. 2002 SCMR 1523 and 2003 CLC 310 rel.
Mr. Abdul Fattah Malik, Advocate for Petitioner.
Mr. Imdad Ali Awan alongwith Mr. Asif Kamal, Advocate for Respondent No. 1.
Mr. A.R. Faruq Pirzada, D.A.-G. and Mr. Habibur Rehman Shaikh, A.A.-G. on behalf of official Respondents.
Date of hearing: 14.2.2006.
Judgment
Amir Hani Muslim, J.--The petitioner has impugned the order of the Respondent No. 4 whereby he has allowed the application of the Respondent No. 1 in Election Petition No. 1 of 2005 for re-count of votes filed by him against the Petitioner and others.
The facts as they appear from the pleadings of the parties are that the petitioner and Respondents Nos. 1 and 2 contested the Sindh Local Bodies Election for the office of Taluka Nazim Bhiria. The results were announced on 6-10-2005 and the petitioner was declared as returned candidate. The petitioner according to the results had secured 63 votes as against the Respondent No. 1 who secured 62 votes. The record reveals that on 7-10-2005 the Respondent No. 1 had approached the Respondent No. 5 for re-count of the votes which application appears to have not been decided as a result of which the Respondent No. 1 filed C.P. No. 457/05 before the principal seat of this Court and by order dated 25-10-2005 this Court had disposed of the said Constitution Petition inter alia, on the ground that since the Election Tribunal has been constituted therefore the Respondent No. 1 may avail his remedy by approaching the Tribunal.
The Respondent No. 1 had filed Election Petition No. 1 before the Respondent No. 4 in terms of Rule 67 of Sindh Local Government Election Rules, 2005 against the petitioner and others. In the Petition No. 1 of 2005, the Respondent No. 1 had challenged the qualification of the petitioner to hold the office of Taluka Nazim. The Respondent No. 1 further alleged that in connivance the Presiding Officers of the Polling Stations has got rejected three valid votes of Respondent No. 1. It was also alleged that petitioner in connivance of Election Authorities has committed corrupt practice in order to succeed in the elections. In the Election Petition it was prayed that the election of the petitioner be declared void and Respondent No. 1 be declared as" returned candidate. After service of the notices the petitioner filed written statement alongwith an application under Order VII, Rule 11, C.P.C. for dismissal of election petition whereas the Respondent No. 1 has also filed in application for re-count of the votes during the pendency of the election petition. Both these applications were heard together by the learned Respondent No. 4 and by two separate orders passed on 18-1-2006 the Respondent No. 4 has allowed the application of re-count of the Respondent No. 1 and has dismissed the application of the petitioner under Order VII, Rule 11, C.P.C. The petitioner being aggrieved against the order allowing the application of Respondent No. 1 for re-count has filed the present proceedings.
It has been contended by the learned counsel for the petitioner that the impugned order is without reasons and is not a speaking order. It was further contended by him that the learned Tribunal has failed to incorporate the contentions of the petitioners counsel and has passed the impugned order mechanically without application of mind. His next contention was that the learned Tribunal should have disposed of the entire petition while allowing the application of the Respondent No. 1. Mr. Abdul Fattah Malik in support of his contention has relied upon the case of Muhammad Naeem Kasi and another v. Abdul Latif and 7 others reported in 2005 SCMR 1699. He has relied upon the definition of natural justice given in the Words and Phrases by Mian Muhibullah Kakakhel Vol. II, Edition 1996.
As against this the counsel for the Respondent No. 1 has submitted that the order impugned was lawful and both the counsel were heard at length and there is no bar in the Sindh Local Government Ordinance which could restrict the Respondent No. 4 from deciding the application for re-count of votes during the pendency of the election petition. Mr. Imdad Ali Awan has relied upon the case of Sheikh Iftikahr-ud-Din and another v. District Judge, reported in 2002 SCMR 1523, Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others reported in 1998 SCMR 2268 and the case of Moula Bux v. Muhammad Rahim reported in 2003 CLC 310.
We have heard the learned counsel and have perused the record. We find that the order impugned is a reasoned order which has taken note of the Judgments of the Hon'ble Supreme Court as well as the judgment of D.B. of this Court on the issue of re-count therefore we do not accept the contention of the learned counsel for the petitioner that the order impugned was without reasons. As far as his next contention is concerned that the contentions raised by him before the learned Tribunal on behalf of the petitioner were not incorporated and therefore the order be declared bad in law. We have not been assisted by the learned counsel on this proposition of law. Admittedly the counsel were heard at length which fact is reflected from the tenor of the order. Mere non-incorporation of the arguments of one of the counsel cannot be made a ground to declare such an order as nullity unless such order ex facie is without reasons. The further contention of the learned counsel for the petitioner that the disposal of the application of re-count was erroneous as the learned Tribunal should have disposed of the entire petition while allowing the application of the Respondent No. 1 for re-count does not appeal to reason inasmuch as a re-count can be ordered on an application in a election petition. We have perused the election petition in which the allegation of corrupt practice and disqualification of the petitioner has been made. Therefore mere disposal of application of re-count of the Respondent No. 1 would not deprive the Respondent No. 1 from agitating the other grounds in the election petition in case if he fails to succeed in the election on the basis of re-count. In this respect we are fortified by the judgment of the Hon'ble Supreme Court in the case of Sheikh Iftikhar-ud-Din and another v. District Judge, in which their Lordship have held that the order of re-count is of interim nature and a constitution petition does not lie against such an order. It has further been held in the said case by the Hon'ble Supreme Court that order of re-count does not prejudice either party. Even Division Bench of this Court in the case of Moula Bux v. Muhammad Rahim reported in 2003 CLC 310 has held that the Election Tribunal can order re-count of votes without recording evidence which order is of interim nature and it could not be challenged by invoking the constitutional jurisdiction of this Court. Election laws do not debar the Tribunal from passing order of, recount on an application of a party during pendency of an election petition. The cases relied upon by the learned counsel for the petitioner are inapplicable to the facts of the case in hand. Under these circumstances, for the aforesaid reasons we find that the order impugned in these proceedings was proper as the record reveals that on 7-10-2005 the re-count was requested by the Respondent No. 1 which request was not acceded to and thereafter a constitution petition was also filed which was disposed of on account of constitution of the Election Tribunals. For the aforesaid reasons this petition merits dismissal alongwith all listed-applications.
(Fouzia Fazal) Petition dismissed.
PLJ 2006 Karachi 322
Present: Sarmad Jalal Osmany, J.
KHALIL-UR-REHMAN and others--Applicants
versus
Mst. VAKEELAN and another--Respondents
C.R. No. 89 of 2004, decided on 10.3.2006.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 17(2)(a), 47, 79, 80 & 118--Specific Relief Act (I of 1877), S. 12--Suit for specific performance of agreement to sell--Executants of agreement three in number--Denial of execution by vendee-defendant, but its acceptance and performance by other co-vendees--Produced in evidence by plaintiff copies of depositions of co-vendees recorded in earlier suit for specific performance between parties regarding execution of agreement by all three ladies and receipt of sale consideration by them--Non-production of attesting witnesses of agreement--Statement of plaintiff during cross--examination that one attesting witness had died, but not stating anything about other witness, whether or not he was alive and capable of giving evidence--Non-production of death certificate of other witness--Non-appearance of vendee--defendant as witness--Effect--As a result of denial of execution of agreement by vendee, burden of proving same would lay upon plaintiff--Duty of plaintiff was to have examined both attesting witnesses unless shown to have been died or incapable of giving evidence--Such depositions of co-vendees could be used only when plaintiff was able to establish that attesting witnesses were either dead or could not be found--Such depositions would not be sufficient to prove agreement--Plaintiff had failed to discharge burden, which could not shift to vendee-defendant--Suit was dismissed. [Pp. 324, 326 & 327] A, B, D, E, F & G
PLD 2005 SC 418; 2005 CLC 269; PLD 2003 Pesh. 40; PLD 2003 AJK-16; 2002 SCMR 1089; 2003 MLD 329 and 2003 MLD 954 ref. PLD 1995 Lah. 395; 1995 CLC 1173 and 1990 SCMR 1259 rel. 2005 MLD 261; 1993 CLC 257 and 2000 YLR 2789 distinguished.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 17(2)(a)--Transfer of Property Act (IV of 1882), S. 54--Agreement to sell--Attestation by witnesses--Requirements--Such agreement being in nature both of a financial and future obligation, would require attestation by two male or one male and two female witnesses. [P. 326] C
Mr. Abdul Haque Kamboh, Advocate for Applicants.
Miss Sabra Ali Rajput, Advocate for Respondents.
Date of hearing: 12.9.2005.
Order
This Civil Revision Application impugns the judgment dated 19-5-2004 passed by the learned District Judge, Naushahro Feroze, in Civil Appeal No. 37 of 2003 whereby the Judgment and Decree dated 19-3-2003 passed by the Learned 1st. Civil Judge, Naushahro Feroze in F.S. Suit No. 13 of 1995 was set aside.
Briefly stated the facts of the matter are that the Applicants/Plaintiffs had filed Suit No. 65 of 1991 on 8-5-1991 against Respondent No. 1 Mst. Wakeelan praying for specific performance of the Sale agreement dated 4-4-1991 between the parties for sale of agricultural land situated in Deh Gagi-II admeasuring about 5-00 acres, Taluka Naushahro Feroze. In the said Suit, it has been averred by the Applicants that they had entered into the said agreement with Respondent Mst. Wakeelan and Mst. Akhtari/Mst. Rashidan all of them being joint owners of the land in question. Whereas Mst. Akhtari and Mst. Rashidan had performed their part of bargain by conveying their share of the property to the Applicants, Mst. Wakeelan had refused and hence the Suit. Mst. Wakeelan appointed Respondent No. 2 Maqbool Ahmed as her General Attorney, who filed a written statement on her behalf denying the agreement in toto. The evidence of Applicant Khalilur Rehman, Mst. Rashidan and Mst. Akhtari was recorded as well as that of Maqbool Ahmed. However at the stage of final arguments the Suit was withdrawn with permission to file a fresh.
Thereafter on 25-8-1995 Suit No. 13 of 1999 (New Number 12 of 2002) was filed by the Applicants against Mst. Wakeelan and Maqbool Ahmed with the same prayers as in the previous Suit i.e. for Specific Performance of the Agreement to sell between the parties. Again a written statement was filed by Maqbool Ahmed on his own behalf as well as on behalf of Mst. Wakeelan since according to him he had purchased the land from the lady per registered sale-deed and possession had already been handed over to him. In order to prove the case again Applicant Khalilur Rehman stepped into the witness box and produced the agreement to sell between the parties as well as true copies of the depositions of Mst. Rashidan and Mst. Akhtari recorded in Civil Suit No. 65 of 1991. The Respondent Maqbool Ahmed examined himself only in defence of the Suit and denied that the agreement to sell was ever executed by Mst. Wakeelan. As stated above the Suit was decreed in favour of the Applicants but in Appeal said Decree was reversed.
In support of the case Mr. Abdul Haq Kamboh, learned Counsel for the Applicants has submitted that he only ground whereby the learned Appellate Court allowed the Appeal was non-examination of the attesting witnesses of the agreement to sell between the parties which was mandatory in terms of Article 79 of the Qanun-e-Shahadat Order and hence fatal to the Applicants' case. Per learned Counsel this line of reasoning adopted by the learned Appellate Court entirely ignores the deposition of Applicant Mehrban Khan according to which the Notary Public who had notarized the agreement viz. Allah Bux, Stamp Vendor/Scribe Muhammad Uris and marginal witness viz. Ghulam Mustafa had died. Hence per learned Counsel the transaction between the parties would not be covered under Article 79 of the Qanun-e-Shahadat Order, which provides that atleast two attesting witnesses must be examined, if they are alive, in order to prove the agreement in question. Consequently in the circumstances the evidence of Mst. Rashidan and Mst. Akhtari could be relied upon who were the co-executants of the agreement in question and who have admitted the same as well as the fact that Mst. Wakeelan had also executed it. In this respect learned Counsel has referred to Article 47 of the Qanun-e-Shahadat Order, according to which the evidence given by a witness in any judicial proceedings can be relied upon in a subsequent judicial proceedings for proving the truth of any fact when the said witness cannot be produced again without an amount of delay and expense. Per learned counsel it has come on the record that Mst. Akhtari the mother of Mst. Wakeelan and Mst. Rashidan is an aged lady of more than 85 years and is living in the Punjab and similarly Mst. Rashidan is also residing there. Hence they could not be produced without an amount of delay and expense. In support of his submissions learned counsel has relied upon Allah Jiwai v. Maqbool Shah (2005 MLD 261), Nazir Ahmad v. Muhammad Rafiq (1993 CLC 257) and Zafarullah Khan v. Karim Bibi (2000 YLR 2789).
Next learned counsel submitted that under Article 71 of the Qanun-e-Shahdat Order the oral evidence of a living person must in all cases be direct and "hence it was incumbent upon Mst. Wakeelan to have appeared before the learned Civil Court, filed her written statement and given evidence. Since she has failed to do so, her defence cannot be considered. In this regard learned counsel has also submitted that when Mst. Wakeelan could come from Punjab in order to execute the registered Sale-Deed on 25-8-1995 in favour of Maqbool Ahmed, she could very well appear in Court. In support of this proposition, learned counsel has relied upon Allah Jiwai v. Maqbool Shah (2005 MLD 261).
Finally learned counsel has submitted that under Section of the Contract Act, a Power of Attorney must specify the acts which the Attorney is authorized to perform on behalf of his principal. Mst. Wakeelan had not authorized Maqbool Ahmed to appear in Court and file the written statement on her behalf or give evidence. Consequently, the evidence of Maqbool Ahmed cannot be considered vis-a-vis denial of the agreement to sell by Mst. Wakeelan. In support of his proposition learned counsel has relied upon Imamdin v. Bashir Ahmed (PLD 2005 SC 418), Talat Jahan Burki v. Member, Board of Revenue Chief Settlement Commissioner, Punjab. Lahore (2005 CLC 269), Mst. Afzal Paracha v. Mst. Fouzia Begum (PLD 2003 Pesh. 40) and Munir Hussain v. Muhammad Aslam (PLD 2003 AJK-16).
In view of the foregoing submissions and in the facts and circumstances of the case, learned Counsel has prayed that this Revision be allowed and the judgment and decree of the learned Appellate Court be set aside.
On the other hand learned counsel for the respondents has fully supported the judgment of the learned Appellate Court. According to her the burden of proving the agreement to sell was upon the Applicants as they had relied upon it which had been denied by the Respondents. Hence failure by the Applicants to produce the attesting witnesses of the agreement to sell is fatal to their case being in violation of Article 79 of the Qanun-e-Shahadat Order. In support of her case Learned Counsel has relied upon Mst. Rashidan Begum v. Muhammad Yousif (2002 SCMR 1089), Imamdin v. Merajdin (2003 MLD 329) and Muhammad Arif v. Mahmood Ali (2003 MLD 954).
I have heard both learned counsel and my conclusions are as follows:
It would be seen that per the case set up by the Applicants in the Suit, all the three ladies viz. Mst. Rashidan, Mst. Akhtari and Mst. Wakeelan had executed the agreement to sell the suit property to the Applicants. Whereas Mst. Rashidan and Mst. Akhtari had performed their part of the bargain and had conveyed their portion of the Suit property to the Applicants, Respondent Mst. Wakeelan had refused to do so, on the ground that she had never executed the agreement in question. In the written statement filed by Mst. Wakeelan, this factual assertion is denied viz. execution of the agreement by her, consequently, the burden of proving the same lay upon the Applicants. In this regard it would be seen that per Article 17(2) of the Qanun-e-Shahadat Order, in matters pertaining to financial or future obligations if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly. Further according to Article 79 of the Qanun-e-Shahadat Order if a document is required by law to be attested it shall not be used in evidence until two attesting witnesses at least have been called for the purpose of proving its execution if they are alive and capable of giving evidence and subject to the process of the Court. Finally per Article 80 if no such attesting witness can be found it must be proved that the witnesses are either dead or cannot be found and that the document was executed by the person who purports to have done so. As admittedly the document in question, viz. agreement to sell is in the nature both of a financial and future obligation, therefore, in my opinion it had to be attested by two male or one male and two female witnesses. A perusal of such document would show that indeed it has been attested by two male witnesses viz. Ghulam Mustafa son of Jamil Ahmed and Badurudin son of Nabi Bux Rajput. Consequently in terms of Articles 79 and 80 of the Order it was incumbent upon the Applicants to have examined both these witnesses unless it could be shown that they were either dead or incapable of giving evidence, in which event the Applicants were free to prove the document in any other manner provided by law. In this regard only a simple statement has been made by Applicant Mehrban Khan under cross-examination that attesting witness Ghulam Mustafa had died whereas nothing has been stated as to whether or not the other attesting witness Badruddin was alive and capable of giving evidence. No death Certificate of Ghulam Mustafa or for that matter Badruddin has been produced in order to prove this factum. In view of the foregoing in my opinion the Applicants have failed to prove that the agreement to sell was executed by Mst. Wakeelan. In this respect reference can be made to Muhammad Yakoob v. Naseer Hussain (PLD 1995 Lah. 395), Auqaf Department v. Javed Shuja (1995-CLC 1173) and Mansoor Hussain v. Maqbool Begum (1998 SCMR 1259).
As regards the submission of learned counsel for the Applicants that in the previous Suit Being No. 65 of 1991 both ladies viz. Mst. Rashidan and Mst. Akhtari had deposed that they alongwith Mst. Wakeelan had executed the agreement and all of them had received the sale consideration, which is sufficient proof of the execution of said document by Mst. Wakeelan in terms of Article 47 of the Order, suffice it to say that such evidence could only be used if the Applicants were able to establish that the attesting witnesses were dead and hence could not be found. As I have already held that the Applicants have failed to do so, hence the depositions of these two ladies are not sufficient to prove the document in question. As regards the cases cited by learned counsel viz. Nazeer Ahmed v. Muhammad Rafiq, Mst. Allah Jiwai v. Maqbool Shah and Zafarullah Khan v. Mst. Hakim Bibi, in my view these are distinguishable as in all of them at least one marginal witness/scribe was examined in order to prove the document in question.
As regards learned counsel's submission that Mst. Wakeelan has not stepped into the witness box in order to establish that she never executed the agreement in question, suffice it to say that this burden lay upon the Applicants and not her. Where this burden has not been discharged as in the present case, it could hardly shift to the other side.
Finally, vis-a-vis the Power of Attorney in question, a close scrutiny of the same would show that Mst. Wakeelan has authorized her attorney Respondent Maqbool Ahmed, to sell, gift, exchange or otherwise dispose of her share in the property in question as well as to appear in any Court of law in any matter regarding the property and to pursue the same as well as engage counsel for this purpose. In view of such observation I am satisfied that Respondent Maqbool Ahmed had sufficient authority on behalf of Mst. Wakeelan to file the written statement etc. as well "as appear in Court to depose on her behalf. Insofar as the case-law cited by Mr. Kamboh on this point is concerned in my opinion the same enunciates the principles regarding interpretation of a power of attorney and I respectfully agree with the same.
For all the foregoing reasons this Revision Application is dismissed.
(Fouzia Fazal) Revision dismissed.
PLJ 2006 Karachi 328
Present: Sarmad Jalal Osmany, J.
ABDUL SATTAR--Applicant
versus
Mst. KALSOOM--Respondent
Civil Transfer Application No. 10 of 2005, decided on 6.3.2006.
Dissolution of Muslim Marriages Act, 1939 (VIII of 1939)--
----S. 2--West Pakistan Family Courts Act (XXXV of 1964), Ss. 5, 10(4), proviso (as added by Family Courts Amendment Ordinance (LV of 2002) & Sched.--Suit for dissolution of marriage on ground of Khula' or any other ground--Pre--trial conciliation efforts, failing of--Absence or presence-of dispute as to payment/remission of dower--Preliminary decree for dissolution of marriage, passing of--Scope--In absence of such dispute, decree for dissolution of marriage would be passed immediately upon failure of pre--trial proceedings between the parties--In presence of such dispute, only upon deposit of dower amount in Court by wife such preliminary decree could be passed, whereafter such dispute would be resolved upon taking of evidence--In presence of such dispute and upon failing of wife to deposit dower amount in the Court, no decree for dissolution of marriage could be passed, rather matter would be decided after recording evidence. [Pp. 330, 331 & 332] A, B & G
Dower--
----Husband asserting payment, but wife denying receipt of dower--Burden of proof--Husband had to prove payment, as onus of proof would always lie upon the person alleging a fact. [P. 331] C
Bayan-ul-Qur'an by Hazart Moulana Ashraf Ali Thanvi rel.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----Ss. 5, 10(4), proviso (as added by Family Courts (Amendment) Ordinance (LV of 2002), 17 & Sched.--Applicability--Principles--Suit for dissolution of marriage on ground of Khula' or any other ground--Preliminary decree for dissolution of marriage, passing of--Non--applicability of Qanun-e-Shahadat, and Civil Procedure Code, to proceedings before Family Court would not debar same from passing such preliminary decree--Section 17 of West Pakistan Family Courts Act 1964, provides that the Qanun-e-Shahadat, and Civil Procedure Code, shall not apply to proceedings before the Family Court--It does not debar such Court from passing a preliminary decree dissolving the marriage on the basis of Khula' or any other ground--Object of provision of Section 17 as to non-applicability of the Qanun-e-Shahadat and Civil Procedure Code, is to expedite the proceedings before Family Court, so that the same are not delayed for lack of procedural formalities as contained in such laws, which cannot be construed so as to defeat the purposes of the Family Courts Act, which is a beneficial piece of legislation designed to expedite family cases. [P. 331] D
Bridal Gift--
----Marriage, dissolution of--Khula', ground of--Consideration for dissolution of marriage would be remission of dower amount by wife, if not received or its payment, if received--All bridal gifts given to wife before or after marriage would not be returned to husband. [P. 332] E
2005 CLC 1844 ref.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----Ss. 5, 10(4), proviso (as added by Family Courts (Amendment Ordinance (LV of 2002)] & Sched.--Suit for dissolution of marriage also involving issues of return of dowry articles, custody of children, dower and maintenance--Failing of pre-trial conciliation efforts--Absence or presence of dispute as to payment/remission of dower--Preliminary decree for dissolution of marriage, passing of--Scope--If husband disputed all such claims of wife, then such contentious issues would be decided only after recording evidence--Where issue of dower was not contested, then such preliminary decree could be passed upon failing of conciliatory efforts, whereafter Court would decide other issues--Where issue of dower was contested, then upon deposit of dower amount in Court by wife, such preliminary decree could be passed, whereafter issue of dower alongwith other issues, if any, would be decided after recording evidence--In presence of such dispute and failing of wife to deposit dower in Court, no decree could be passed for dissolution of marriage, rather matter would be decided after recording evidence. [P. 332] F
Mr. Faiz Muhammad Brohi, Advocate for Applicant.
Mr. Arbab Ali Chandio and Mr. Muhammad Yakoob Lakhair, Advocates for Respondent.
Mr. Abdul Qadir Shaikh, Advocate as Amicus Curiae.
Dates or hearing: 10 and 24.10.2005, 21.11.2005 and 8.12.2005.
Order
Vide this Transfer Application it has been prayed that Family Suit No. 77 of 2005 filed by the respondent against the applicant for dissolution of marriage on the basis of Khula' pending with the learned 1st Senior Civil Judge, Sukkur be transferred to any Family Court in District Naushahro Feroze on the grounds mentioned therein. Vide order dated 10-10-2005, the Transfer Application was dismissed. However, learned counsel were directed to address the Court on the issue regarding dissolution of marriage between the parties upon failure of pre-trial proceedings, in terms of the proviso to Section 10(4) of the Family Courts Act. 1964 as the respondent had stated before myself that although such pre-trial had failed between her and her husband (the applicant) yet the learned Family Court had not decreed her suit on the basis of Khula'. Mr. Abdul Qadir Shaikh was requested to assist the Court as Amicus Curiae. Comments were also called from the learned Family Court.
In this regard learned counsel for the respondent has submitted that per the diaries of the learned Family Court on 5-9-2005, pre-trial had failed between the parties and hence in terms of the proviso to Section 10(4) of West Pakistan Family Courts Act, 1964, the Suit filed by the respondent against the applicant being Family Suit No. 77 of 2005 before the learned 1st Senior Civil/Family Judge, Sukkur should have been decreed on this ground alone. Per learned counsel this was the only course left open to the learned Family Court as the issue regarding dower amount (Haq Mahr) was not contested and so also no other issues had been raised between the parties.
Mr. Abdul Qadir Shaikh learned Amicus Curiae has firstly stated that according to the learned religious scholars, the only consideration for grant of Khula' is remission of dower if not received by the wife and if so received an offer to return the same to the husband. If this be done then Khula' can be granted. However, under no circumstances is the wife obligated to return gifts etc.; given to her by the husband other than by way of dower. Per learned counsel even under the Bridal Gifts and Dowry Articles Act, 2004, all the benefits received by the wife from the husband prior to and after the marriage other than dower amount is not to be returned to the latter upon a divorce between the parties. In this regard learned counsel has referred to Bayan-ul-Quran by Hazart Moulana Ashraf Ali Thanvi and Ahsan-ul-Khitaba by Mufti Rasheed Ahmed Khan. Furthermore in Bahishti Zewer authored by Moulana Thanvi, it has been stated that where the husband is at fault, he should never even demand the return of dower amount from his wife upon divorce taking place between the parties. In this respect he has also cited Muhammad Zafar v. Judge Family Court 2005 CLC 1844. Insofar as the proviso to Section 10(4) of the Act is concerned, learned counsel has submitted that where the only issue before the learned Family Court is that of dower and the same is not disputed between the parties, then in terms of the said proviso a decree for dissolution of marriage is to follow immediately upon pre-trial proceedings having failed. However, where this issue is disputed, it has to be resolved before any decree for dissolution of marriage can be passed by the learned Family Court. Similarly per learned Amicus Curiae, even where the issue of dower is not disputed but other issues have been raised in the matter before the Family Court viz. custody of children, return of dowry articles and/or maintenance, again these would have to be resolved before a decree could be passed since no preliminary decree can be passed in family suits as per Section 17 of the Act, the C.P.C. is not applicable.
I have heard both the learned counsel as well as learned Amicus Curiae. It would be seen that the West Pakistan Family Courts Act, 1964 was amended in 2002 with a view to expediting family suits and also allowing the wife, in a Suit for dissolution of marriage, to claim return of dowry articles/personal property, maintenance, custody of children, visitation rights etc. In this regard reference can be made to the newly added proviso to Section 7(2) of the Act. So also vide Section 12(a) a family Suit is to be disposed of within a period of six months from the date of institution. Finally per the proviso to Section 10(4) of the Act in a suit for dissolution of marriage, where the pre-trial fails between the parties, then a decree for dissolution is to be passed forthwith and at the same time the Family Court shall restore to the husband the Haq Mahr (dower amount) received by the wife. This amendment is in consonance with Islamic law as under the same, marriage is a civil contract and like other civil contracts can be terminated at the behest of either party, although in the eyes of Allah Almighty divorce is one of the most abhorrent of acts. Hence the wife can obtain dissolution of her marriage by remitting the dower amount if not received and paying it back to the husband if so received. Consequently, where there is no dispute between the parties on the issue of dower, then in terms of the proviso to Section 10(4) of the Act a decree for dissolution of marriage on the basis of Khula' or on any other ground is to be passed immediately upon the failure of pre-trial proceedings between the parties. However, where a dispute arises on this issue between the parties as to the payment/receipt/remission of dower then the same would have to be resolved by the Family Court. In this situation if the wife is willing to deposit the dower amount in Court, then too a preliminary decree for dissolution of the marriage should be passed by the Family Court whereafter the disputed issue regarding the dower amount could be resolved. Of course if the wife does not deposit the dower amount in Court; the matter would have to be decided upon taking evidence whereafter the decree should be passed accordingly. In this connection it would be seen that where the husband asserts payment but the same is denied by the wife, he would have to prove the same because the onus of proof is always upon the person who alleges a fact. Reference can also be made to Mulkhan Bibi v. Muhammad Wazir Khan PLD 1959 (W.P.) Lahore 710. As regards Section 17 of the Family Courts Act, 1964, which provides that the Qanun-e-Shahadat, 1984 and the Code of Civil Procedure, 1908 shall not apply to proceedings before the Family Court, in my opinion the same does not debar such Court from passing a preliminary decree dissolving the marriage on the basis of Khula' or any other ground. The provision of Section 17 as to non-applicability of the Qanun-e-Shahadat Order and Civil Procedure Code in my view, is to expedite the proceedings before the Family Court so that the same are not delayed for lack of procedural formalities as contained in the aforementioned laws. The same cannot be construed so as to defeat the purposes of the Family Courts Act, 1964 which is a beneficial piece of legislation designed to expedite family cases. It may also be observed that per settled law the only consideration for dissolution of marriage on the ground of Khula' is the remission of dower amount by the wife if not received or payment to the husband if received. All bridal gifts etc.; given to the wife before or after the marriage are not to be returned to the husband.
Insofar as other issues agitated by the wife before the Family Court in a suit for dissolution of marriage viz. return of dowry articles, custody of children and maintenance etc.; where these are disputed by the husband obviously such contentious issues could only be resolved after evidence has been recorded and the decree would follow. However, where the issue of dower is not contested, in my opinion, a preliminary decree dissolving the marriage can be passed upon the failure of pre-trial proceedings whereafter the other issues as stated above could be decided by the learned Family Court. Again the same result would follow if the wife deposits the dower amount in Court where this is a contested issue whereafter the same could be decided.
From the foregoing discussion the following broad principles can be laid down vis-a-vis the procedure to be followed by the Family Court in suits for dissolution of marriage on the basis of Khula' or on any other ground filed by a Muslim wife where pre-trial proceedings fail.
(a) Where the only relief sought by the wife in her suit is dissolution of marriage on the basis of Khula' or on any other ground and pre-trial proceedings fail between the parties, then the Family Court is bound to decree the suit dissolving the marriage where there is no dispute between the parties as to the dower amount. However, where such a dispute arises, and the wife deposits the dower amount in Court, a preliminary decree for the dissolution of marriage should be passed whereafter this issue would be decided by the Family Court upon taking of evidence. Of course where the wife does not deposit the disputed amount of dower in Court then no preliminary decree can be passed and the matter would have to be decided after taking evidence. In this context it is important to note that dissolution of marriage by way of Khula' is only premised on remission of dower amount if not received and payment of the same to the husband if so received by the wife. She is not bound to return gifts received before or after the marriage to the husband.
(b) Where besides dissolution of marriage, the wife in her suit seeks other reliefs viz. custody of children, maintenance and return of dowry articles etc.; then again if the issue of dower is not disputed, a preliminary decree can be passed dissolving the marriage where the pre-trial proceedings fail. Again where this issue is contested and the wife deposits the dower amount in Court a preliminary decree should be passed dissolving the marriage. Thereafter this issue could be resolved through evidence alongwith other disputed issues if any i.e. custody of children, return of dowry articles and maintenance etc. However, if the wife does not deposit the dower amount in Court, then no preliminary decree can be passed for dissolution of marriage in which event this issue alongwith other contested issues would have to be decided by the Family Court after taking evidence.
(Fouzia Fazal) Order accordingly
PLJ 2006 Karachi 333
Present: Faisal Arab, J.
MUHAMMAD MUBEEN--Applicant
versus
Messrs LONG LIFE BUILDERS and others--Respondents
Judicial Misc. No. 29 of 2000 in Suit No. 407 of 1993 (Ex. No. 66 of 1999), decided on 17.3.2006.
Transfer of Property Act, 1882 (IV of 1882)--
----S. 52--Rule of lis pendens--Applicability of--Provisions of--No party to the suit could alienate disputed property so as to affect his opponent--Party who had obtained decree in his favour, was entitled to execute the decree not only against the person against whom decree was passed, but also against person who derived title to the disputed property during pendency of suit--Change of title or transfer of possession during pendency of suit from the judgment--debtor to a third party was to be treated only symbolical title and possession and there was no reason why decree--holder be not allowed to proceed also against third party who was in actual possession of suit property--When a party to a suit would sell disputed property to third party during pendency of suit and ultimately he failed in establishing his title to it, purchaser of such property could not even seek protection of a bona fide purchaser in order to deprive decree-holder the fruit of decree--Third party in whose favour title was transferred during pendency of suit by a judgment-debtor, was to be regarded only a representative of judgment-debtor and act of selling the property, could not be allowed to defeat the claim of decree-holder merely because property changed hands during pendency of suit--That was so because rule of lis pendens was applicable also to the third party and in such a ease, he was not entitled to defend suit independently from judgment--debtor through whom he claimed ownership rights during pendency of suit--Judgment and decree passed against judgment-debtor, would also be binding on the purchaser in the same manner and to the same extent, as it was binding on judgment-debtor. [P. 336] A
PLD 1995 Lah. 255; (1857) 1 De. G. & J. 566; 1999 YLR 2589 and PLD 1966 SC 328 ref.
Rule of lis pendens--
----Effect of--Effect of rule of lis pendens, laid down in S. 52 of Transfer of Property Act, 1882 to a controversy, was very clear: It provided that where the title of a litigant was already in dispute in a suit, then any alienation of disputed property by such litigant to a third party was subject to final outcome of suit--Upon failure of a party to a suit that alienated disputed property, the transferee was stripped of his title to suit property on basis of rule of lis pendens--No legal proceedings were required to get the status of transferee determined who claimed title from an unsuccessful transferor as he was no more regarded as lawful transferee so as to seek protection of his title--Such transferee was to be regarded merely a representative of unsuccessful transferee--Decree against a transferee pendente lite was as much executable as it was against the party who alienated disputed property during pendency of suit. [Pp. 337, 338 & 339] B & C
PLD 2006 Kar. 155 and PLD 1981 Kar. 210 ref.
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Transfer of Property Act (IV of 1882), S. 52--Challenging decree on ground of fraud and mis--representation--Applicant was established to be a transferee of disputed property pendente lite and as his transferor had failed in suit to establish her claim to disputed property, under provisions of S. 52 of Transfer of Property Act, 1882» applicant could not claim his independent right to disputed property so as to seek judgment and decree of setting aside under S. 12(2), C.P.C. [P. 339] D
Mr. Gohar Iqbal and Mr. Munawar Malik, Advocate for Applicant.
Nemo for Respondent No. 1.
Date of hearing: 2.3.2006.
Judgment
This order shall dispose of application filed by the applicant Muhammad Mubeen under Section 12(2), C.P.C. The applicant claims that he is owner of Bungalow No. A-211 measuring 240 square yards in Gulistan-e-Jouhar, K.D.A. Scheme No. 36, Karachi which he purchased in the year 1995 from Mrs. Nayar Sultana Sylani wife of Khawaja Rehmatullah Sylani. The case of the Applicant is that Suit No. 407 of 1993 filed for by Abdul Hameed seeking specific performance of the contract and for cancellation of lease deed in relation to the same bungalow was decreed on 2-12-1998 at Applicant's back as he was not made a party to the suit. The Applicant therefore seeks setting aside pf the judgment and decree passed in Suit No. 407 of 1993 in favour of Abdul Hameed.
Controversy in Suit No. 407 of 1993.
In 1986, Lifelong Builders a partnership firm of Fayyaz Ahmed, Ch. Zufiquar Ali Syed Ahmad, Muhammad Aleemuz Zaman (the defendants No. 1 to 5 in the suit) launched a housing project in Gulistan-e-Jouhar, K.D.A Scheme No. 3 6, Karachi in the name and style pf Long Life Houses for construction and sale of small town houses and bungalows. In the same year i.e. 1986, Abdul Hameed who was plaintiff in the suit booked the bungalow in dispute with the Lifelong Builders for a total sale consideration of Rs. 475,000 and started making payments as per schedule of instalments. Abdul Hameed paid the entire sale consideration up to 1991. When the construction of his bugalow was completed in 1992, Abdul Hameed asked Lifelong Builders for its possession. Longlife Builders however did not deliver possession and kept Abdul Hameed on high hopes. In the meanwhile, Abdul Hammed received a phone call by a person claiming to be a relative of Mrs. Nayar Sultana Sylani. The caller claimed that the bungalow in question has been purchased by Mrs. Nayar Sultana Sylani wife of Khawaja Rehmatuallah Sylani for Rs. 1,050,000 and lease-deed has also been executed in her favour by Lifelong Builders. The caller also offered that in case Abdul Hameed is interested in buying the house for Rs. 1,100,000 he can arrange with Mrs. Nayar Sultana Sylani to sell it for Rs. 1,100,000. Abdul Hameed who had already purchased the same bungalow earlier from Lifelong Builders and made entire payment, sensed fraud. He first obtained copy of the lease-deed dated 14-10-1992 executed by Lifelong Builders in favour of Mrs. Nayar Sultana Sylani from the office of the Sub-Registrar and filed Suit No. 407 of 1993 seeking specific performance of contract against Lifelong Builders and its partners Fayyaz Ahmed, Ch. Zufiquar Ali, Syed Ahmad and Muhammad Aleemuz Zaman and also made Mrs. Nayar Sultana Sylani as Defendant No. 6 in the suit and sought cancellation of lease-deed executed by Longlife in her favour. Finally on 2-12-1998, suit for specific performance was decreed in favour of Abdul Hammed and the lease deed dated 14-10-1992 executed in favour of Mrs. Nayar Sultana Sylani was ordered to be cancelled. When Abdul Hamed sought. execution of the decree from this Court, the present Applicant namely Muhammad Mubeen appeared on the scene, who filed the present application under Section 12(2), C.P.C., raised claim to the bungalow on the basis of his transaction which he entered with Mrs. Nayar Sultana Sylani in 1995 during pendency of the suit and sought setting aside of the decree passed in the suit in favour of Abdul Hameed.
In the instant application filed under Section 12(2) CPC, the Applicant Muhammad Mubeen has claimed that by a registered sale-deed executed in 1995, he purchased the bungalow from Mrs. Nayar Sultana Sylani for a total sale consideration of Rs. 350,000. The Applicant claimed that before purchase of the bungalow he obtained Search Certificate from Sub-Registrar on 30-3-1995 wherein the owner of the house was shown to be Nayyar Sultana Sylani. The Applicant in his application claims that he has been victim of fraud, misrepresentation and collusion of Mrs. Nayyar Sultana Sylani and that he was not made party either in the suit or execution application and when the bailiff came to the bungalow on 19-4-2000 to take its possession he rushed to this Court and filed the present application. He further claims that the judgment and decree is not binding on the applicant as he was not party in the suit.
It is an admitted position that the bungalow was allotted to Abdul Hammed by Lifelong Builders in the year 1986 and he started paying instalments from 31-1-1986 and completed all payments by 12-10-1991. It is also an admitted position that in spite of receiving the entire sale consideration. Lifelong Builders executed lease deed of the bungalow in favour of Mrs. Nayar Sultana Sylani on 14-10-1992. It is also an admitted position that the Applicant Muhammad Mubeen claims that in 1995 the bungalow in question was sold to him by Mrs. Nayar Sultana Sylani who was Defendant No. 6 in the suit. At that time suit was still pending and interim injunction was in operation against Longlife Builders, its four partners and Mrs. Nayar Sultana Sylani herself.
In this background, the question which arises is that even if the Applicant succeeds in establishing his claim that he purchased the bungalow from Mrs. Nayar Sultana Sylani in 1995, can he still succeed in getting the decree set aside which was passed in the suit in favour of Abdul Hammed. It is an admitted position that the Applicant derives his title from Mrs. Nayar Sultana Sylani on the basis of a transaction which took place in 1995 when suit against her was already pending and restraint order was in operation. The effect of restraint order and of Section 52 of Transfer of Property Act on the transaction between the Applicant and Mrs. Nayar Sultana Sylani is to be examined in order to see whether the transaction has any legal validity in the eyes of the law so as to create any independent right, title and interest in the bungalow in favor of the Applicant and therefore he be allowed to establish his claim through a full inquiry after setting aside the decree passed in the suit.
Under Section 52 of the Transfer of Property Act, no party to the suit can alienate the disputed property so as to affect his opponent. A party who has obtained decree in his favour is entitled to execute the decree not only against the person against whom decree was passed but also against person who derived title to the disputed property during the pendency of the suit. The change of title or transfer of possession during the pendency of the suit from the judgment-debtor to a third party is to be treated only symbolical title and possession, and there is no reason why the Decree Holder be not allowed to proceed also against the third party who is in actual possession of the suit property.
When a party to a suit sells disputed property to third party during pendency of the suit and ultimately he fails in establishing his title to it, the purchaser of such property cannot even seek protection of a bona fide purchaser in order to deprive the decree-holder the fruits of the decree. The third party in whose favour title is transferred during the pendency of suit by a judgment-debtor is to be regarded only a representative of the judgment-debtor and the act of selling the property cannot be allowed to defeat the claim of the decree-holders merely because the property changed hands during pendency of the suit. This is so because the rule of lis pendens is applicable also to the third party. In such a case, he is not entitled to defend the suit independently from the judgment-debtor through whom he claimed ownership rights during the pendency of the suit. The judgment and decree passed against the judgment-debtor shall also be binding on the purchaser in the same manner and to the same extent as it was binding on the judgment-debtor.
In the case of Abdus Saeed Khan and 2 others v. Bashrat Ali and 13 others reported as PLD 1995 Lahore 255 it was held at page 258-259 as follows:
"We are afraid, this contention of the learned counsel is devoid of any merit. Admittedly it was during the pendency of the suit for specific performance that the appellants had purchased the land in dispute from Respondents Nos. 5 to 16. The sale in their favour was, therefore, clearly hit by the doctrine of lis pendens which finds legislative recognition in Section 52 of the Transfer of Property Act, 1882......"
"....... Mian Iqbal Hussain, learned counsel for the appellants, however, attempted to argue that as the appellants were not aware of the pendency of the suit, the principle of lis pendens has no applicability to them. This contention of the learned counsel is again not legally sound. The doctrine of pendente lite is not simpliciter based upon the principle that filing of a suit is notice to the whole world but more so on the public policy that no one should be allowed to affect the rights of the parties pending the decision of cause before a Court of law. It is useful to refer to Bellamy v. Shabine (1857)1 De G. and J 566 in which the rationale on which the doctrine of lis pendens rests was propounded by Turner L.J. in the following words:
"It is as I think, a doctrine common to the Courts both of Law and Equity, and rests, as I apprehend upon this foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The Plaintiff would be liable in every case to be defeated by the Defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject. again to be defeated by the same course of proceeding." •
In the same case Lord Cranworth explained that the doctrine did not rest on the ground of notice and observed that:
"it is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite-party."
In the case of Khair Din through L.R. v. Muhammad Iqbal and 2 others (1999 YLR 2589) it was held at page 2592-2593 as follows;
"Further, the judgment and decree, dated 29-4-1972 passed in Civil Suit No. 49 of 1972 in favour of the petitioners decided the status entitlement of the disputed property in favour of the petitioners. In view of Article 56 of the Qanun-e-Shahadat Order, 1984, the judgment in Civil Suit No. 419 of 1970, dated 29-4-1972 is conclusive proof as to what it states between Khair Din and Maqbool Ahmed. Muhammad Iqbal claims under Maqbool Ahmed who was a party to the proceedings in which the said judgment was given. As such if he had taken the risk of getting sale-deed executed in his favour during the pendency of the said suit, he has done so at his own peril. Of course he has the right to get his sale consideration back from Muhammad Iqbal and the decree, dated 29-4-1972 cannot be made subject to the sale-deed which is subject to all consequences of the decree delivered by a Court of law competent to deliver it. The Plaintiff in that case played no fraud on the Defendant. It is the Defendant Maqbool Ahmed who played fraud with Muhammad Iqbal, knowing fully well that the matter was pending before the competent Court."
Reference can also be had to case of Usman v. Haji Omer Haji Ayub, and Haji Razzak reported in PLD 1966 SC 328 at page 336.
The effect of rule of lis pendens laid down in Section 52 to a controversy like the present one is very clear. It provides that where the title of a litigant is already in dispute in a suit, then any alienation of the disputed property by such litigant to a third party is subject to the final outcome of the suit. Upon failure of a party to a suit that alienated the disputed property, the transferee is stripped of his title to the suit n property on the basis of rule of lis pendens. No legal proceeding? are required to get the status of the transferee determined who claims title from an unsuccessful transferor. He is no more regarded as lawful transferee so as to seek protection of his title. He is to be regarded merely a representative of the unsuccessful transferee. The decree against a transferor pendente lite is as much executable as it is against the party who alienated the disputed property during the pendency of the suit.
Counsel for the applicant lastly submitted that on account of change in the pecuniary jurisdiction of this Court this application be sent to the Civil Court for adjudication. However in the written argument the applicant's counsel has stated that the Hon'ble Supreme Court in several cases has held that the application under Section 12(2), C.P.C. is to be filed in the same Court which passed the original order/decree. In a case reported as Anwarul Huda v. Fahimul Huda (PLD 2006 Karachi 155) I after relying upon Full Bench judgment of this Court reported as PLD 1981 Karachi 210 I held that this Court possesses concurrent jurisdiction alongwith the civil courts and therefore the present application filed under Section 12(2), C.P.C. is maintainable before this Court.
In the light of the above discussion, it is clearly established that.
Applicant is transferee of the disputed property pendente lite and as his transferor Mrs. Nayar Sultana Sylani has failed in the suit to establish her claim to the disputed property, therefore under the provisions of Section 52 of Transfer of Property Act the Applicant cannot claim his independent right to the disputed property so as to seek the judgment and decree set aside under Section 12(2), C.P.C. The application is therefore dismissed with costs.
(Fouzia Fazal) Application dismissed
PLJ 2006 Karachi 339
Present: Sajjad Ali Shah, J.
Messrs HABIB INSURANCE CO. LTD.--Petitioners
versus
Messrs STATE LIFE INSURANCE CORPORATION OF PAKISTAN LTD. and another--Respondents
C.P. Nos. 152, 153, 256 and 257 of 2005, decided on 27.2.2006.
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----S. 8--Constitution of Pakistan, 1973, Art. 199--Fixation of fair rent--Landlord seeking fixation of fair rent of premises in-question, had filed affidavit-in-evidence and produced various documents showing increase of taxes, increase in repair and maintenance charges and also prevailing rent of similar premises situated in similar circumstances in same and adjoining locality--Submission of tenant that landlord had failed to prove all the four factors as reflected in Section 8 of Sindh Rented Premises Ordinance, was without any substance as absence of any of the factors would not, in any case, prejudice the case of landlord seeking fixation of fair rent--Landlord had placed on record sufficient evidence to establish that rent in same building was being charged at the rate of Rs. 10 per sq. ft. per month, whereas rent of a premises situated on third floor of same building was being charged at the rate of Rs. 8.57 per sq. ft. per month as fixed by High Court and upheld by the Supreme Court--Rent of premises was fixed Rs. 8.57 per sq. ft. per month payable to landlord from the date as fixed by Rent Controller in its order. [Pp. 342, 346 & 347] A, C, D & F
1996 SCMR 1329 and 2001 SCMR 1103 ref.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 73--Appreciation of evidence--Where evidence was led by filing affidavit-in-evidence, the documents filed alongwith such affidavit, were always exhibited in the affidavit by the person filing such affidavit-in-evidence--Primarily, it was for the Court to examine the witnesses producing such documents and to exhibit the documents so produced and to refuse production of those documents which otherwise could not be produced in accordance with law--If such an exercise was not carried out by the Court, then it was for the adversary to challenge veracity of any document during cross-examination; or ask for production of its original; and if no such objection was raised then it would lead to conclusion that production and/or genuineness of the document or its contents were not disputed. [P. 346] B
Constitution of Pakistan, (1973)--
----Art. 199--Constitutional jurisdiction--Findings of facts, normally, were not to be interfered with in exercise of constitutional jurisdiction unless it was shown that the findings were recorded by mis--appreciation of evidence and against appraisal of evidence. [P. 346] E
Mr. Mazhar Imtiaz Lari, Advocate for Petitioners (in C.Ps.Nos. 152 and 153 of 2005) and for Respondents (in C.Ps. Nos. 256 and 257 of 2005).
Mian Mushtaq Ahmed, Advocate for Respondents (in C.P. Nos. 152 and 153 of 2005) and for Petitioners (in C.P. Nos. 256 and 257 of 2005).
Date of hearing: 31.1.2006.
Judgment
By this common judgment I intend to decide Constitutional Petitions Bearing Nos. 152, 153, 256 and 257 of 2005.
The brief facts for the purposes of determining these petitions are that the petitioners in C.Ps. Nos. 256 and 257 of 2005 viz. State Life Insurance Corporation of Pakistan are the landlords whereas the Petitioners in C.Ps. Bearing Nos. 152 and 153 of 2005 viz. Habib Insurance Company Limited are the tenants. The State Life Insurance Corporation of Pakistan filed two separate applications under Section 8 of the Sindh Rented Ordinance, 1979 (hereinafter referred to as 'the Ordinance') seeking fixation of fair rent against their tenants Habib Insurance Company Limited who were occupying two different tenements in different buildings adjacent to each other one being State Life Building No. 6 and other being 6-A situated at M.A. Jinnah Road Karachi. The Rent Case Bearing No. 592/92 was in respect of the premises situated on the first floor of State Life Building No. 6-A comprising of 2599 sq. ft., in possession of Habib Insurance Company Limited at a monthly rental of Rs. 1303 i.e. 0.50 paisa per sq. ft., whereas Rent Case No. 593/1992 was in respect of the premises situated on the first floor of State Life Building No. 6 comprising of 6216 sq. ft., in possession of Habib Insurance Company Limited at a monthly rental of Rs. 4140 i.e. 0.67 paisa per sq. ft.
The grounds for seeking fixation of fair rent being that the building wherein the demise premises is situated are located in the heart of commercial area of Karachi where most of the offices of reputed firms, companies, banks and other bodies are situated and claimed that the prevailing rent of the similar premises situated in the similar circumstances in the same and adjoining locality is Rs. 12 per Sq. ft., per month. Increase in cost of construction, repairs, maintenance charges, imposition of new taxes and increase therein was further pleaded and prayed that the fair rent of the said premises be fixed at the rate of Rs. 12 per sq. ft., per month from the date of institution of the case.
The Respondents/tenants filed their written-statement and pleaded that the increase sought is very exorbitant and sought the dismissal of the application on the ground that neither any maintenance has been carried out by the landlords nor there is any increase in taxes and they have already increased the rent by 50% in the year 1994 and then again by 20% in the year 1997, The landlords filed their affidavit-in-evidence and produced various documents showing the increase of taxes as well as the statement of expenses reflecting increase in the repair and maintenance charges and further two leases one in respect of a premises situated in one of the buildings owned by the landlords being No. 1-C the entrance whereof is from I.I. Chundrigar Road Opposite Mohammadi House reflecting rate of rent at Rs. 16 per sq. ft., whereas the other in respect of a premises situated on the ground floor of the same building i.e. 6-A reflecting rate of rent being charged at the rate of Rs. 10 per Sq. ft. per month. The copies of the aforesaid lease deeds were produced by the witness of the petitioner alongwith his affidavit-in-evidence as Exh.A/2 and Exh.A/3, respectively, whereafter the respondents/tenants filed their affidavit-in-evidence and reiterated the contents of the written statement and thereafter both the witnesses were cross-examined by the Advocates of their adversaries. The Rent Controller on the basis of the pleadings and evidence before him enhanced the rent from paisas 50 and paisas 67 per sq. ft., per month to Rs. 2 per sq. ft., per month. However, the lease deed produced by the landlords as Exh.A/2 and Exh.A/3 reflecting charging of rent at Rs. 16 per sq. ft., per month in the building situated in the adjoining locality and Rs. 10 per sq. ft., per month in the same building were not considered on the ground that the original of the said documents were not produced. This order was only challenged by the landlords by filing two separate Appeals bearing Nos. 472 and 473 of 2001 which were decided by the VII Addl. District Judge Karachi South by a common judgment dated 29-4-2004 whereby the learned VII Addl. District Judge also without taking into consideration the aforesaid two leases, produced as Exhs. A/2 & A/3 enhanced the rent from Rs. 2 to Rs. 5 per sq. ft., per month. This common judgment of the learned VII Addl. District Judge was challenged by the landlords by filing Constitutional Petitions bearing Nos. 501 and 502 of 2004 and by the tenants/respondents by filing Constitutional Petitions bearing Nos. 509 and 510 of 2004. The said petitions were decided by this Court by a common order dated 24-11-2004, relevant portion whereof being very material for deciding the controversy involved in these petitions as such is reproduced below:
". .... the Lease Deed Exh.A/3, which was produced in the evidence, has not been considered at all by the learned Additional District Judge and consequently the impugned order suffers from non-reading of evidence.
Mr. Mazhar Imtiaz Lari, learned counsel for the respondent is not able to rebut the contention.
Since the material evidence has not been considered at all by the learned Additional District Judge while disposing of the Appeal, therefore, the impugned order is not sustainable. With the consent of both the learned Advocates, the impugned order passed by the learned Additional District Judge is hereby set aside and the case is remanded to the learned VII Additional District Judge (South) Karachi, with direction to re-hear the parties and decide the appeals afresh after considering the entire evidence available on record and pass a speaking order."
Consequently, the order was set aside and the case was remanded back to the VII Addl. District Judge Karachi to decide the matter afresh after hearing the parties and considering the entire evidence available on record by passing the speaking order. The VII Addl. District Judge, thereafter, decided the said appeal afresh vide his judgment dated 17-1-2005 which has been impugned by the landlords by filing Constitutional Petitions bearing Nos. 256 and 257 of 2005 and by the tenants by filing Constitutional Petitions bearing Nos. 152 and 153 of 2005.
Learned counsel for the Petitioners/landlords has urged that despite directions of this Court as contained in its order dated 24-11-2004 whereby the case was remanded-to the VII Addl. District Judge Karachi South to re-hear the parties and decide the appeals afresh after considering the entire evidence available on record, the Appellate Court has failed to take into consideration Exhs.A/2 and A/3 on the ground that the same being photocopies and despite opportunity provided to the landlords they have failed to produce the original of the said exhibits. The learned counsel has pleaded that the said documents were - exhibited as Exhs. A/2 and A/3 in the evidence without any objection as to the validity or genuineness of the said documents. He has further invited my attention to the following portion of cross-examination of the witness of landlords: ; '
". . . . It is correct to suggest that Exh.A/3 is executed with Gul Ahmed. It is incorrect to suggest that one Khalid son of said Gul Ahmed is working as a Typist in company of applicant. I do not know Khalid son of Gul Ahmed. It is correct to suggest that premises given to Gul Ahmed for purpose of restaurant. It is correct to suggest that some portions of Exh. A/3 are blank. It is incorrect to suggest that there is no kitchen in the cases premises."
It has been urged that no where during the cross-examination the veracity of Exh.A/3 was challenged nor the original was demanded. Consequently, it was pleaded that if the photostat copy of a document is exhibited without objection from the other side then the veracity of such document cannot be challenged at the appellate stage. In support of his contention, the learned counsel has relied upon the following observations of the Hon'ble Supreme Court in the case of Habib Bank Ltd. v. Anis Ahmad and others (1996 SCMR 1329):
"It seems to be an admitted position that the above Photostat copies of the documents were exhibited by the learned Rent Controller without any objection from the side of the respondents, in this view of the matter, the ratio decidendi of the judgment of this Court in the case of Ghulam Muhammad v. United States Agency for International Development (USAID), Islamabad (1986 SCMR 903) was applicable. If an objection to formal proof of a document is not raised at the earliest point of time, no such objection can be allowed to be raised at the appellate stage. Reliance was placed in the above judgment on an earlier judgment of this Court rendered in the case of Malik Din and others v. Muhammad Aslam (PLD 1969 SC 136)."
Learned counsel has further argued that since this Court in earlier round of litigation while deciding Constitutional Petitions bearing Nos. 501, 502, 509 and 510 of 2004 had specifically directed the Appellate Court to decide the appeals afresh after considering the entire evidence on record which included Exhs, A/2 and A/3, despite, the Appellate Court for extraneous reasons did not consider the said documents in clear violation of said direction.
It is further contended that the Petitioners/landlords had filed another case seeking fixation of fair rent against their other tenant viz. Messrs Olympia Spinning and Weaving Mills Limited who are tenant of the same building i.e. State Life Building No. 6 in respect of premises situated at 2nd and 3rd floors and were also paying rent @ paisas 50 per sq.ft., the petitioner/landlord sought increase at the rate of Rs. 10 per sq.ft., the Rent Controller fixed the fair rent at the rate of Rs. 7 per sq.ft., on appeal this Court after appreciating the evidence produced increased the rent to the extent of Rs. 8.67 per sq.ft. The tenant filed an appeal before the Hon'ble Supreme Court which was dismissed. The learned counsel has contended that the judgment of the Hon'ble Supreme c Court is binding on this Court as such the fair rent should be at least Rs. 8.67 per Sq.ft.
The learned counsel further contended that the petitioners/ landlords have produced statements reflecting significant raise in the betterment tax, water charges, taxes of KMC/KWSB as such the order of the Rent Controller as well as of Appellate Court is based on misreading and non-reading of the material produced before them. In the end, the learned counsel prayed that instead of remanding the case and prolonging the agony of the landlord, the rate of rent fixed by this Court at Rs. 8.67 per sq, ft., per month in respect of other premises of the landlord in the same building and upheld by the Hon'ble Supreme Court may be fixed as fair rent. On the other hand, learned counsel for the Respondents-tenants has contended that the petitioners have miserably failed to prove all four factors as envisaged under Section 8 of the Ordinance being prerequisite of such increase. It was further contended that the increase in the taxes is insignificant and not proportionate to the increase as demanded by the landlord. The learned counsel further contended that despite opportunity, the landlords were not able to produce the original of Ex.A/3 therefore the Appellate Court has rightly refused to consider the said exhibit. In rebuttal, learned counsel for the Petitioner/landlord has produced the original of Exh.A/3 before this Court which after inspection was returned. The learned counsel for the Petitioner/landlord in response to the contention of the learned counsel for the Respondents/tenants that the landlord has failed to prove all four factors as required under Section 8 of the Ordinance has relied on the case of Messrs Olympia Spinning and Weaving Mills Limited v. State Life Insurance Corporation of Pakistan Limited (2001 SCMR 1103) and invited my attention to the following observations:
"16. Viewed in the light of the language employed by the Legislature and the earlier precedents it may be observed that four factors incorporated in law are in the nature of guiding principles for the Rent Controller for determination of fair rent. The cumulative effect of all these factors being quite relevant and helpful in arriving at a just conclusion must be given due weight. Nevertheless, common ground available in most of cases would be the prevalent market rent of the similar premises situated in similar circumstances in the same or adjoining locality. It may, thus, be made clear that existence of all the four conditions is not the invariable rule of law and presence of all factors in a case might lead to appreciation in determining rate of rent for the purpose of fair rent. Absence of any of the factors would not, in any case, prejudice the case of the applicant before the Rent Controller."
I have given due consideration to the arguments advanced at the bar and perused the record and case law produced before me.
It was not controverted that the main cause of grievance of the landlord in the earlier round of litigation was non-consideration of Exh.A/3 by the Rent Controller as well as by Appellate Court while fixing fair rent despite the fact that the respondent/tenant has not challenged the validity or genuineness of the said document. It is also not disputed that in the earlier round of litigation the case was remanded by this Court to the Appellate Court with the directions to pass an appropriate order after considering entire evidence produced before the Rent Controller. A perusal of order passed by this Court in the earlier round of litigation, as above, reflects that even before this Court no challenge was thrown as to the production or genuineness or validity of the said exhibits. In cases where the evidence is led by filing affidavit-in-evidence, the documents filed alongwith such affidavits are always exhibited in the affidavit by the person filing such affidavit-in-evidence, however, primarily it is for the Court to examine the witness producing 'such documents and to exhibit the documents so produced and or to refuse the production of those documents which otherwise cannot be produced in accordance with the law. However, if such an exercise is not carried out by the Court then it is for the adversary to challenge the veracity of any document during the cross-examination or ask for the production of its original and if no such objection is raised then it leads to the conclusion that the production and or genuineness of the documents or its contents are not disputed. In the circumstances, it was out of place for the appellate Court to ask for the production of original of Exh.A/3. The Appellate Court, as such, has erred in law in not considering Exh.A/3 which leads to the conclusion that the landlord has proved that the rate of rent charge in the same building for a premises situated on the ground floor is at Rs. 10 per sq. ft., per month. The next submission of the learned counsel for the Respondent/tenant that the petitioner/landlord has failed to prove all the four factors as reflected in Section 8 of the Ordinance are without any substance as by now it is well-settled law that absence of any of the factors would not, in any case, prejudice the case of the landlord seeking fixation of fair rent as held by the Hon'ble Supreme Court in the case of Messrs Olympia Spinning and Weaving Mills Limited (supra).
A perusal of record further reflects that the landlord has specifically asserted in the affidavit-in-evidence filed on its behalf that the prevailing rent of the similar premises situated in the similar circumstances in the same and the adjourning locality is at Rs. 12 per sq. ft. per month. However, the said assertions are gone unrebutted in the cross-examination. On the other hand, in the affidavit-in-evidence filed on behalf of the Respondent-tenant by its authorized representative there is no denial of the petitioners/landlords' assertions that the prevalent rent in the locality is not as claimed by the petitioners/landlords nor any documentary evidence was produced to the contrary, in fact, the said representative of the Respondent-tenant during his cross-examination has shown ignorance regarding rate of rent being charged in the said area, in the circumstances such ignorance amounts to an admission. The petitioners/landlords have placed on record sufficient evidence to establish that the rent in the same building is being charged at the rate of Rs. 10 per sq. ft. per month whereas the rent of a premises situated on the third floor of the same Building is being charged at the rate of Rs. 8.57 per sq. ft. per month as fixed by this Court and upheld by the Hon'ble Supreme Court. However, the Appellate Court for the reasons best known to it has failed to consider the evidence despite specific directions from this Court and thereby failed to exercise jurisdiction vested in it in accordance with law. The findings of facts normally are not to be interfered in exercise of constitutional jurisdiction unless it is shown that the findings are recorded by mis-appreciation of evidence and against the well-settled principles for appraisal of evidence. In my view the case of the petitioners/landlords falls within such exception as the Appellate Court has totally failed to appreciate the evidence on record due to misconception of law. It would, therefore, be very harsh and unjust to remand the case to the Appellate Court for fixing the fair rent upon appreciation of evidence available on record specially when the learned counsel for the petitioners/landlords has shown his willingness to accept the same amount of rent as was fixed by this Court in respect of another premises of the petitioners/landlords situated on the third floor of the same building and such fair rent was maintained by the Hon'ble Supreme Court. In the circumstances, there is no question of fact which requires determination from this Court, as the petitioners/landlords cannot be allowed to suffer again and again due to an illegality committed by the Rent Controller or the Appellate Court, consequently, the amount of fair rent fixed by the Appellate Court at Rs. 5 per sq. ft. per month is modified by enhancing the same to the extent of Rs. 8.57 per sq. fit., per month payable by the respondent-tenant to the landlords from the date as fixed by the Rent Controller in its order.
As a result. Constitutional petitions Bearing Nos. 256 and 257 of 2005 are allowed and Constitutional petitions Bearing Nos. 152 and 153 of 2005 are dismissed.
(Fouzia Fazal) Order accordingly
PLJ 2006 Karachi 347
Present: Rehmat Hussain Jafferi, J.
Mrs. UZMA AZIZ--Plaintiff
versus
Mrs. MARYAM (DORISLIONS) & others--Defendants
Suit No. 929, C.M.As. Nos. 62, 88, 6289, 6627 of 2002, 2296, 2297, 1117, 3432, 3422 and 3434 of 2004, decided on 29.8.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 14 & O.V, R. 7--Production of documents--Plaintiff was required to produce documents on which he had sued--Defendant was directed to appear, answer and produce all documents in his possession upon which he intended to rely in support of his case. [Pp. 349 & 350] A, B & D
Civil Procedure Code, 1908 (V of 1908)--
----O.XIV, R. 1(5) & O.XIII, R. 1--Non-production of document--Framing of issues--If parties did not file the documents at the initial stage then documents might be filed on first hearing--If documents which could not have been filed at the initial stage they could be filed on the date of framing issues being the first hearing of the suit. [Pp. 349 & 350] C & F
(ii) Sindh Chief Court Rules (O.S.)--
----Rr. 3(4), 111 & 194--Civil Procedure Code (V of 1908), O.XIII, Rr. 1 & 2 & O.XVI, R. 1--Extension of time--Oral motion for extension of time for producing the document could not be accepted because motions could be made orally in matters of routine or indulgence--Commission would also to be notified on the first hearing--Order accordingly. [Pp. 350 & 351] E, G & H
Mr. Fazle Ghani Khan, Advocate for Plaintiff.
Mr. Mushtaq A. Memon, Advocate for Defendants Nos. 1 and 2.
Mr. Yawar Farooqui, Advocate for Defendants Nos. 3, 5 and 6.
Date of hearing: 29.8.2005.
Order
During the course of arguments of C.M.As. Nos. 1117/2004 and 3434/2004 filed by the plaintiff and Defendants 3, 5 and 6 respectively, the learned Advocate for the Defendants 1 and 2 filed a photostat copy of extract of entries of City Register of Birth in Municipal limits of Karachi Bearing No. 212704 in support of the proof that Defendant No. 2 was born during the marriage between Defendant No. 1 and deceased Haroon Qasim (copy be supplied to the learned Advocates for the plaintiff and Defendants 2 and 3). It was found necessary to examine the question by allowing the parties to lead evidence in support of their claims. Therefore, the parties' Advocates agreed for framing preliminary issues, which are as under:--
(1) Whether the deceased Haroon Qasim had adopted the Defendant No. 2 or the Defendant No. 2 was born during the marriage between Defendant No. 1 and deceased?
(2) What should the order be?
The Certificate of readiness, list of witnesses documents be filed within a period of 7 days. Both the above mentioned C.M.As. will be considered on the next date of hearing.
The learned Advocate for the Defendants 1 and 2 has objected that 7 day's time for filing the documents cannot be fixed as no time limit is fixed under Order XIII, Rule 1, C.P.C. Therefore, the time may be extended for eight weeks because the Defendants 1 and 2 are out of country.
Under the law the parties are required to file documents alongwith pleadings because under Order VII, Rule 14, C.P.C the plaintiff is required to produce the document on which he sues. The Order VII, Rule 14, C.P.C. reads as under:--
"14. Production of document on which plaintiff sues.--(1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.
List of other documents.--(2) Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint."
There is no corresponding provision in Order VIII for producing the documents along with written statement. The Province of Punjab have made corresponding amendment in Order VIII, but the Province of Sindh have not made such amendment for the simple reason that under Order V, Rule 7, C.P.C. the defendant is directed to appear, answer and produce all documents in his possession or power upon which he intends to rely in support of his case. The Order V, Rule 7, C.P.C. reads as under:
"7. Summons to order defendant to produce documents relied on by him.--The summons to appear and answer shall order the defendant to produce all documents in his possession or power upon which he intends to rely in support of his case."
If for any reason the parties do not file the documents at the initial stage then law provides that the documents be filed on first hearing, as required under Order XIII, Rule 1, C.P.C., that reads as under:--
"1. Documentary evidence to be produced at first hearing.--(1) The parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced.
(2) The Court shall receive the documents so produced: Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.
(3) On production of documents under this rule, the Court may call upon the parties to admit or deny the documents produced in the Court and record their admission or, as the case may be, denial."
It is pertinent to point out that the summons are issued to the defendant either to settle the issues or for final disposal as required under Order V, Rule 5, C.P.C. that reads as under:--
"5. Summons to be either to settle issues or for final disposal.--The Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly:
Provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit."
Under Order VIII, Rule 1, C.P.C. the defendant is required to file written statement on first hearing. It reads as under:
Provided that the period allowed for filing the written statement shall not ordinarily exceed thirty days.
Under the proviso the defendant is allowed to file written statement within a period shall not ordinarily exceed 30 days. If for any reason the suit is adjourned then the adjourned hearing would be deemed to be first hearing as provided under Rule 3 sub-rule (4) of Sindh Chief Court Rules (O.S), which reads as under:
"3(4) "first hearing" includes the hearing of a suit for settlement of a suit for settlement of issues and any adjournment thereof;"
The issues are to be framed on the first hearing, as required under Order XIV, Rule 1(5), C.P.C. therefore, the documents which could not have been filed at the initial stage can be filed on the date of framing of the issues being the first hearing of the suit. If no documents are filed on that date then the parties cannot produce the document or exhibit it in the evidence unless good cause is shown within the meaning of Order XIII, Rule 2, C.P.C. that reads as under:--
In the present case the learned Advocate for the Defendants 1 and 2 has produced the photostat copy of birth certificate, which is taken on record, but the same is required to be received through a list in the form as shown in annexure `H' Form 5 attached to the C.P.C. The said document has not been produced alongwith the required list, as such, the parties were directed to file the list of documents within a period of 7 days.
The oral motion made by the learned Advocate for the Defendants 1 and 2 for extension of time for producing the documents cannot be accepted before under Rule 111 of Sindh Chief Court Rules motions can be made orally in matters of routine or indulgence or in matters wholly within the discretion of the Judge. In the present case the Defendants 1 & 2 want to produce the documents beyond the period provided under Order XIII, Rule 1, C.P.C. therefore, for that purpose a good cause is required to be shown for extension of time. Furthermore, a vested right has been created in favour of other party which cannot be disturbed without providing opportunity to him and passing appropriate order within the meaning of Order XIII, Rule 2, C.P.C. Apart from above, if the time for filing the list of documents is extended beyond the period of 7 days then it might come in conflict with Order XVI, Rule 1; C.P.C. as the list of witnesses is required to be filed within 7 days. The commission is also to be notified on the first hearing as required under Rule 194 of Sindh Chief Court Rules, that reads as under:--
(2) No application for the issue of such commission as aforesaid shall be entertained after the suit or matter has been set down for final disposal in default of such intimation unless the Court is satisfied that the application could not have been made earlier, and in that case the Court may make such orders as to costs as it deems fit.
Thus for producing documents which have not been filed as required under Order V, Rule 7, Order VII, Rule 14 and under Order XIII, Rule 1, C.P.C. the parties may adopt legal course by invoking the provisions of Order XIII Rule 2, C.P.C. The suit is adjourned for evidence of the parties and hearing of C.M.As. Nos. 1117/2004 and 3434/2004.
Learned Advocate for he Defendants 1 and 2 requests that the birth certificate may be returned so that he may obtain its photostat copies, to be supplied to the other side as this is the only copy with him. The office is directed to give the birth certificate to the learned Advocate for the Defendants 1 and 2, after procuring receipt from him for getting the copies and thereafter it shall be re-filed.
(Fouzia Fazal) Order accordingly
PLJ 2006 Lahore 1
[Rawalpindi Bench Rawalpindi]
Present: Nasim Sikandar, J.
Dr. TARIQ IQBAL--Petitioner
versus
Dr. HAMID-UD-DIN etc.--Respondents
W.P. No. 1655 of 2004, decided on 6.12.2004.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition in the nature of quo-warranto calling upon respondent to show under what authority of law, he was holding post in question--Departmental Promotion Committee had recommended petitioner for the post in question--Secretary Health, however, turned down such recommendation and appointed respondent to that post observing that respondent possessed requisite qualification, and experience--Such fact was not seriously disputed by petitioner--Petitioner's emphasis that on disagreement with recommendation of Departmental Promotion Committee, matter ought to have been referred back to such committee by Secretary Health was not supported by any provision of Civil Servant Act, 1973 or Rules framed thereunder--Reliance of petitioner on S.L. No. 189 page 285, ESTA Code in given circumstances was not relevant--Departmental Promotion Committee only makes recommendation while appointing authority is obliged to accept or reject such recommendation in accordance with law, equity and fairness--All such requirements appear present in decision in hand, of competent Authority, therefore, no exception can be taken to appointment in question--No case was made out for issuance of writ of quo-warranto. [Pp. 3 & 4] A, B & C
2003 PLC (C.S.) 503, ref.
Hafiz S.A. Rehman, Advocate for Petitioner.
M/s Babar Bilal & Muhammad Shabbir Ahmad, Advocates for Respondent No. 1.
Date of hearing : 6.12.2004.
Order
In this Constitutional petition following prayer has been made.
"In view of the foregoing it is respectfully prayed for and on behalf of the petitioner:--
(i) That the Respondent No. 1, who is holding or purporting to held the post of Associate Surgeon Pakistan Institute of Medical Sciences, Islamabad be called upon to show that under what authority of law he holds or purports to hold that post.
(ii) That the impugned order is void, ab-initio and is contrary to the provisions of Constitution of the Islamic Republic of Pakistan, 1973 especially of Article-18 thereof and in violation of the Rules 2(d) and Rule-7 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 be struck down, quashed, reversed, modified or varied.
(iii) That the impugned orders having been issued unilaterally, abruptly, arbitrarily and in contravention of the age old and well meant doctrine of "Audi Altrum Partum", and may graciously be struck down.
(iv) The petitioner having acquired vested right in all aspects of morality, legality and equity be directed to be considered for appointment in accordance with law."
The petitioner Dr. Tariq Iqbal is working as Associate Surgeon (Plastic Surgery (BS-18) on deputation basis at PTMS since 2001. That post was sought to be filled on contract basis as well as on regular basis through Federal Public Service Commission. However, in view of urgent need of the department, hospitals/institutes under the Ministry of Health were requested to furnish particulars of Medical Officers/Registrars (BS-17) eligible for promotion to the post of Associate Surgeon (Plastic Surgery).
In response two nominations were received. The first being Dr. Hamid-ud-Din, Medical Officer (BS-18), Jinnah Postgraduate Medical Centre, Karachi/Respondent No. 1 and secondly the petitioner Dr. Tariq Iqbal. The Departmental Promotion Committee on 14.1.2004 recommended the name of the petitioner for "Appointment by Transfer" as he was basically a Medical Officer (BS-18) of Federal Govt. Services Hospital Islamabad and was working as Associate Surgeoan in PIMs on deputation basis. The proposal/recommendation of the DPC was, however, rejected by Respondent No. 2/Secretary Health on the ground that Dr. Tariq Iqbal did not possess the requisite decree/diploma in Plastic Surgery while Dr. Hamid-ud-Din possessed the qualification and experience. Therefore, he was directed to be transferred and posted as Associate Surgeon (Plastic Surgery) in PIMS. That order is assailed in this Constitutional petition on various grounds.
Having heard the learned counsel for the parties I am not persuaded to allow the said relief for the following reasons:--
Firstly, the observation of the respondent/Secretary Health that Dr. Hamid-ud-Din Medical Officer possesses the required experience for the post is not seriously disputed. According to the office note a copy whereof has been placed on record, said Dr. Hamid-ud-Din is FCPS (Plastic Surgery) while the petitioner Dr. Tariq Iqbal is FCPS (General Surgery). The respondent Dr. Hamid-ud-Din is holding a regular appointment in that discipline since 17.8.1988 while the petitioner Dr. Tariq Iqbal was appointed in General Surgery on 22.10.1990.
Secondly, the emphasis that on disagreement with the recommendations of D.P.C. the matter ought to have been referred back to them by the Secretary is not supported from any provisions of Civil Servants Act or the Rules framed there under. The reference/reliance by the learned counsel for the petitioner on para-19 of a Division Bench judgment of this Court in re. Muhammad Zafeer Abbasi, Deputy Secretary vs. Govt. of Pakistan, (2003 PLC (C.S.) 503) is not relevant. In that case the petitioner Civil Servant was ignored/superseded by the Departmental Promotion Committee on the oral objection of one of the members of the Committee against whom a specific allegation of mala fide was made. In the case in hand the competent authority rejected the recommendation of D.P.C. for cogent and relevant reasons and instead transferred Dr. Hamid-ud-Din an account of his being eligible to hold the position. The position was filled merely transfer as Dr. Hamid-ud-Din was already working as a Medical Officer in BS-18 while the post of Associate Surgeon in the Plastic Surgery Department of PIMs also fell in BS-18. The equivalence certificate dated 2.7.2004 by Pakistan Medical and Dental Council Islamabad as relied upon by the petitioner Dr. Tariq Iqbal is hardly of any significance. The question of equivalence arises only when the holder of a specific degree/diploma or certificate is not available in the field. The respondent Dr. Hamid-ud-Din being a fellow of College of Physicians and Surgery in Plastic Surgery Discipline, the question of equivalent professional qualification did not arise at all. And, Lastly, the reliance of the petitioner on S.L. No. 189 page 285 Esta Code in the given circumstances again is not relevant. A Departmental Promotion Committee only makes a recommendation while the appointing authority is obliged to accept or reject the recommendations in accordance with law, equity and fairness. All the three requirements appear present in the decision in hand of the competent authority and, therefore, no possible exception to the same can be taken.
Dismissed in-limine.
(A.A.) Petition dismissed.
PLJ 2006 Lahore 4
Present: Umar Ata Bandial, J.
Haji FAZAL-UL-REHMAN--Appellant
versus
ABDUL HAFEEZ @ BABAR--Respondent
S.A.O. No. 5 of 2005, decided on 17.2.2005.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Alleged non-deposit of rent in compliance of Rent Controller's order--Deposit of rent has been made by tenant in those names as he was making prior to order under S. 13(6) of the Ordinance of 1959--Tenant in doing so was following direction given by Rent Controller--No element of intentional disobedience or ulterior motive was thus, evident from such conduct--No dispute of title has been raised by tenant to advance of which he could be accused of adding land lord's son's name to title of deposit account--Land lord has not shown any dispute with his son that might hamper him from withdrawing amount deposited by tenant--Order in question, having approved of the manner in which rent was being deposited by tenant and landlord having failed to raise any objection that time, no intentional violation of mandate under S. 13(6) of the Ordinance of 1959, or order of Rent Controller passed thereunder was committed. [P. 7] A, B & C
1991 SCMR 429 and PLD 1980 SC 9, ref.
Mr. Ali Masood Hayat, Advocate for Appellant.
Mr. Muhammad Saleem Chaudhry, Advocate for Respondent.
Date of hearing : 17.2.2005.
Order
This order shall dispose of SAO 5 and SAO 6 of 2005 as these proceed against a common order dated 18.12.2004 passed by the First Appellate Court reversing the order of the learned Rent Controller dated 25.5.2004 for the ejectment of the respondent passed in proceedings for his eviction filed by the landlord appellant.
Learned counsel submits that the rent deed is an unsigned document and has, therefore, no significance in the eyes of law. He states that the contract between the parties is, therefore, an oral contract established by the conduct of the parties. Accordingly, reference to the rent deed is inappropriate in the circumstances of the case; the learned Appellate Court should have referred the admission made in the written statement of the respondent who has been unduly let off from the penal consequence of his conduct.
Pursuant to notice to these proceedings, learned counsel for the respondent has entered appearance. He referred to the order dated 17.2.2003 passed by the learned Rent Controller under Section 13(6) of the Ordinance. This order recognizes that the respondent tenant was already depositing rent in the government treasury in respect of the two shops in question. Having noted the same learned Rent Controller then ordered that "in these circumstances the respondent is directed to keep on depositing the rent at the rate of Rs. 3772/- per month accumulatively for both the Shops Nos. 16 & 17 in the government treasury before the 15th of each succeeding month." It was emphasized by the learned counsel for the respondent that by the said order, the learned Rent Controller had approved the manner and practice of deposit of rent by the respondent in the government treasury and has ordered that the respondent continue to deposit as done before. The record does not show nor is it asserted that the appellant landlord raised any objection to the title of the recipient of his deposit of rent that was adopted by the respondent tenant.
The respondent had been depositing rent in pursuance of his application dated 26.4.2002 in the names of the appellant and his son. Acting upon the order of the learned Rent Controller the respondent thereafter continued to deposit the rent directed therein in the same manner and in favour of the same persons as he had been doing before. The learned Rent Controller struck out the defence of the respondent by order of 25.5.2004 for his failure to produce challan showing deposit of rent rather than for depositing rent in the wrong name. In the Appellate Court the challans were produced by the respondent. At that stage the appellant landlord took the objection that the challans showed deposit in the wrong name; and this amounted to non-compliance with requirements of Section 13(6) of the Ordinance and the order of the learned Rent Controller under that provision. Learned counsel for the appellant made reference to the judgment of the Hon'ble Supreme Court in the case of Bahadar Khan v. Ch. Muhammad Hussain (1991 SCMR 429) which held that deposit of the rent by the tenant in the name of Muhammad Hussain son of Imam Din rather than Muhammad Hussain son of Wali Dad, latter being the landlord's name, was in violation of the direction under Section 13(6) of the Ordinance. The appellant therein had full knowledge of the facts yet deposited rent in favour of a wrong person. Accordingly the said deposit of rent was held not to be in conformity with the provisions of Section 13(6) of the Ordinance. Reliance was placed in the said judgment upon the precedent case in Ghulam Mustafa v. Mian Waqar Ahmad (PLD 1980 S.C. 9), wherein the deposit of rent by the tenant was not in the name of landlord but in the name of his heirs. This conduct was held to be intentional disobedience of order passed under Section 13(6) of the Ordinance and meant to harm the interest of the landlord by creating hurdles for him in withdrawal of the rent.
In the present case the deposit in question has been made by the respondent in the same names as he was making prior to the order under Section 13(6) of the Ordinance. In doing so, the respondent was following the direction given by the learned Rent Controller. Therefore no element of intentional disobedience or ulterior motives is evident from such conduct. No dispute of title has been raised by the respondent tenant to advance which he may have been accused of adding the landlord's son's name to the title of the deposit account. Further, the landlord has not shown any dispute with his son that may hamper him from withdrawing the amount deposited from the treasury. Learned counsel for the respondent tenant says that his client made the deposit in the joint names of the landlord and his son in good faith and he is willing to render every cooperation to facilitate and ensure the withdrawal of deposited rent by the appellant landlord including any consent required in the procurement of an appropriate order from a competent Court for withdrawal and indeed for regulating future deposits made by the respondent.
The precedents cited by the appellant deal with intentional default in the compliance of order under Section 13(6) of the Ordinance committed with the object of causing harm to the landlord. In the present case since the order under Section 13(6) by the learned Rent Controller approved of the manner in which the rent was being deposited by the respondent and the appellant failed to raise any objection at that stage, therefore as such, there is no intentional violation of the mandate under Section 13(6) of the Ordinance of the order of the learned Rent Controller passed thereunder. The allegation that the respondent intended to deprive the landlord appellant from the benefit of the rent deposited is also unjustified in the light of the foregoing acquiescence by the appellant and approval of the learned Rent Controller. The objection and grievance of the landlord about difficulty in withdrawal can be redressed by an appropriate order of the learned Rent Controller, making correction or giving clarification for which the tenant has undertaken his fullest cooperation, and not by depriving the respondent from his right to defend his tenancy.
As as result, the alleged non-compliance is of a technical nature and does not stand in the way of meeting the requirement and object of Section 13(6) of the Ordinance or for that matter the order passed by the learned Rent Controller on 17.2.2003 under the said provisions.
In view of what is discussed above, these appeals have no merit and are, accordingly, dismissed in limine.
(A.A.) Appeals dismissed.
PLJ 2006 Lahore 8
Present: Ch. Ijaz Ahmad, J.
Mst. RASHIDAN BIBI (deceased) through Legal Heirs--Petitioners
versus
Mst. JANTAY BIBI etc.--Respondents
C.R. No. 966 of 2005, decided on 10.5.2005.
(i) Administration of Justice--
----Each and every case is to be decided on its own particular circumstances and facts. [P. 13] B
(ii) Muhammadan Law--
----Inheritance--Mutations of Inheritance sanctioned in accordance with Hanafi fiqh was assailed by plaintiff on assertion that deceased belonged to "Fiqh Jaffaria"--Courts below dismissed suit disbelieving plaintiff's assertion--Copy of Roznamcha containing note of Patwari that inheritance mutation is to be sanctioned in accordance with "Fiqah Jaffaria" was found to be fake when compared with original entry of Roznamcha--Plaintiffs thus failed to prove that deceased was follower of Fiqh Jaffaria--Initial presumption that Muslims in Pakistan were governed by Hanafi law unless contrary was established by strong evidence, was not controverted by cogent evidence--Concurrent findings of Courts below which had been given after proper appreciation of evidence on record did not warrant interference in revisional jurisdiction. [Pp. 10, 13, 14 & 15] A, C, D & E
PLD 1987 SC 139; PLD 1989 SC 568; 1994 SCMR 2213; PLD 1974 SC 322; PLD 1977 Karachi 320; Muhammadan Law by Mulla Sections 28 & 31; PLD 1965 SC 134; 1989 CLC 1591; 1998 MLD 1857; PLD 1954 Lahore 480; PLD 1952 Sindh 54; PLD 1949 P.C 26 and PLD 1988 SC 625, ref.
Mr. Ali Akbar Qureshi, Advocate for Petitioners.
Date of hearing : 10.5.2005.
Order
The brief facts out of which present petition arises are that the land in-question measuring 24 kanals is situated in Chak No. 8/1-R, Tehsil and District Okara, which was owned by late Jaffar Khan. After death of said late Jaffar Khan. Mutation of Inheritance No. 925 was sanctioned by the Revenue Officer on 12.3.1996 considering the original owner as Sunni in favour of the respondents i.e. Mst. Jannatay Bibi, Babu Khan and petitioners. The petitioners being aggrieved filed suit for declaration along with permanent injunction in the Court of Civil Judge Okara. According to the contents of plaint, it is alleged that late Jaffar Khan belonged to Fiqa Jaffaria. Mst. Jannatay Bibi was not wife of late Jaffar Khan. The respondents filed written statement controverting the allegations leveled in the plaint except Mst. Bashiran Bibi, who has filed consenting written statement. Out of pleadings of the parties, the learned trial Court framed the following issues:--
Issues
(1) Whether the deceased Jafar Khan, father of the plaintiff was follower of Fiqa Jafria till the time he breathed his last? OPP
(2) If the above issue is proved, whether the plaintiff being daughter of the deceased, is sole heir old entitled to succeed the entire estate, as such the impugned mutation of Inheritance No. 925 dated 12.3.1996 in favour of the defendants is illegal, void and ineffective on the rights of the plaintiff to that extent? OPP
(3) Whether Defendant No. 1 Jannatay Bibi was widow of Jaffar Khan and the impugned mutation of inheritance was validly sanctioned in favour of the defendants? OPD.
(4) Whether the plaintiff has got no cause of action to bring this suit? OPD
(5) Whether this suit is improperly valued for the purpose of Court fee and jurisdiction? OPD.
(6) Whether the defendants are entitled to recover special cost under Section 35-A of CPC, if so to what quantum? OPD.
(7) Relief.
The learned trial Court dismissed the suit vide judgment and decree dated 12.7.2004. The petitioners being aggrieved filed an appeal before the learned Addl: District Judge, Okara, who also dismissed the same vide impugned judgment and decree dated 2-3-2005. Hence, the present revision petition.
"Karamat Hussain etc. vs. Muhammad Zaman and others" (PLD 1987 S.C. 139);
"Nasir Abbas versus Manzoor Haider Shah" (PLD 1989 S.C. 568);
He further submits that the petitioners/plaintiffs produced six witnesses along with documentary evidence to prove on record that late Jaffar Khan belonged to "Fiqa Jaffaria", but both the Courts below wrongly rejected the evidence of the petitioners/plaintiffs while appreciation of evidence on record. The land in-question was allotted in the name of the original owner on 14.6.1957, which contained a note by Halqa Patwari that "Mutation of inheritance would be sanctioned in accordance with Fiqa Jaffaria" and this fact was also supported by the petitioners by producing the witnesses, who have stated in their statements that late Jaffar Khan has given "Chanda" to them as Member of their Society, who are also belonged to "Fiqa Jaffaria". He further submits that the judgments of both the Courts below are the result of mis-reading and non-reading of record.
I have given my anxious consideration to the contention of learned counsel of the petitioners and perused the record.
The basic document relied by the petitioners/plaintiff is Ex. P-1 dated 20.4.1957, which was rejected by the Courts below with cogent reasons firstly that the petitioners/plaintiffs have produced photo copy and Court has called original record in which this note was not mentioned, therefore, I do not find any infirmity and illegality in the impugned judgments of Courts below. It is better and appropriate to reproduce the findings of First Appellate Court on Issues Nos. 1 & 3 to resolve the controversy between the parties:--
Issue No. 1
This issue is most important issue in this regard. To prove this issue, plaintiff has relied upon oral as well as documentary evidence. In oral evidence produced six PWs. Similarly in rebuttal, defendant has also relied upon the oral as well as documentary evidence. Onus to prove this issue was on the plaintiff. Even otherwise presumption in a subcontinent is that every Muslim is deemed to Sunni until and unless contrary is proved. To prove the sect of deceased Jaffar Khan, plaintiff has examined PW-1 patwari Halqa, who brought the record of Roznamcha No. 1426/57 and copy of said Roznamcha produced in evidence as Ex. P-1. Perusal of that roznamcha shows that order of A.D.N. was passed on 20.4.1957 wherein it was directed that in RL-II upon which land was confirmed in favour of deceased. Note be given that Jaffar Khan being to shia sect and further direction was given that on the death of Jaffar Khan, his mutation be sanctioned in accordance with Fiqa Jaffaria. In the same context copy of RL-II/Ex. P-5 has been produced which bears the note as mentioned in Ex.P-1. In rebuttal of this documentary evidence, defendant has summoned original record of RL-II, which was produced by DW-2 wherein claim form of Jaffar Khan was entered and according to that record, no note as directed in Ex.P-1 and as mentioned in Ex. P-5 is available in original RL-II.
Learned counsel for the appellant argued that copy of Roznamcha is record of more than thirty years old. Presumption of truth is attached to it. No rebuttal to this document is available. No objection was taken regarding admission of this document in evidence, hence no objection can be taken at this stage regarding genuineness of this document while on the contrary learned counsel for the respondents argued that alleged direction of ADM for giving note on RL-II has been proved falsely by the statement of DW-2 and from the record of original RL-II wherein said note is available. Original order of ADM dated 20.4.1957 has not been produced which means that best evidence in this regard was withheld, even said roznamcha has been prepared as admitted by PW-1 is not on a proforma meant for that purpose. Every patwari had printed book of roznamcha having particulars number of leaves. Against each respective number of leave entry in roznamcha is made while PW-1 has admitted that it is prepared on a simple paper which shows that this piece of evidence has been manipulated by the plaintiff, hence has no value.
Besides other oral evidence, which will be discussed later on, to prove or disprove sect of deceased Ex. P-1 and Ex. P-5 statement of PW-1 and DW-2 is most important evidence. This Court has gone through the documents and statement of PWs in this regard and found that entry recorded in Ex. P-1 regarding sect of particular person is unique phenomenan which is not generally found in Revenue record. Original order of ADM dated 20-4-1957 has not been produced on the basis of which roznamcha was entered. This roznamcha has no number to show on what number of leave of roznamcha, this entry was made, while entry in roznamcha is made in printed book available with the Patwari Halqa Secondly said entry in RL-II has been rebutted by the production of original record of RL-II and statement of DW-2. There is no explanation, how RL-II produced by the plaintiff, as Ex. P-5 carries note regarding sect of deceased while original record do not carry any such note. Meaning thereby that this entry has been proved to be forged one through record, which further shows the intention of the plaintiff that to prove her father's sect, according to her own wishes, she has tried to develop forged entry. This entry has further made entries in roznmacha doubtful. So in this back ground, no presumption can be attached to this document. Besides this appellant has produced a person, who belong to shia sect, to prove that deceased belong to shia sect, specially PW-6 has produced the receipts through which contribution from the deceased was recorded by PW-6 but perusal of those receipts shows that those belong to mosque and Imam Bargah, situated in Kamoki while deceased was resident of Renala Khurd. No connection has been established between deceased and Imam Bargah of Kamoki. Similarly Receipt No. 258 pertains to year 1979 while receipt No. 177 pertains to year 1983. All these facts show that these documents are not reliable, has been prepared as an after thought in effort to prove the sect of plaintiff as shia. The plaintiff's son has appeared as attorney of her mother whose statement has also been perused and who has tried to conceal the fact that he was Imam of Janaza prayer of deceased while he is resident of same village where Janaza prayer was performed and deceased was his maternal grand father, so all these facts show that the plaintiff has herself failed to [prove sect of deceased as shia rather above discussion shows that mala fide effort has been made to develop record by applying illegal practice to prove sect of deceased as shia. Findings of the trial Court regarding this issue is upheld.
Issue No. 3.
Onus of this issue was placed on defendant by trial Court, which has wrongly placed on defendant. It is plaintiff who has alleged that Janatay Bibi is not widow of deceased Jaffar Khan, so onus should have been on plaintiff to prove this fact. In this regard, learned counsel for the plaintiff has relied upon evidence of PW-5 and argued that assertion of PW-5 that Defendant No. 1 was not wife of his grand father, has not been cross-examined by the defendant, hence it would be deemed to be admitted under Article 133 of Qanun-e-Shahadat. On the contrary learned counsel for the defendant argued that DW-3 Babu Khan would have benefited if he has also denied that Janatay Bibi is not widow of deceased, his share would have been increased in that case but he has stated that Janatay Bibi was widow of deceased. Mutation Ex. P-4 was sanctioned in the village wherein both the lumberdar Imam Masjid of the village and different other persons, who were related to the deceased have appeared and stated categorically that deceased belong to sunni sect and Janatay Bibi was his widow and there is no rebuttal of this evidence except sole statement of grand son of deceased as attorney of his mother.
After the death of Defendant No. 1, daughter of Defendant No. 1 filed consenting written statement accepting the plaint but she did not appear nor she was produced as witness to support the contention that her mother was not widow of deceased Jaffar Khan, hence due to non-appearance of daughter of Defendant No. 1, no weight can be given to the written statement filed by her, as no one was to contest the suit on behalf of Defendant No. 1, hence non cross-examination on the part of Defendant No. 1, regarding the fact Defendant No. 1 was not widow of Jaffar Khan, cannot be termed as admission on the part of Defendant No. 3. Onus was on the plaintiff to prove this issue but they have failed to prove hence, this issue is decided against the plaintiff and in favour of defendant."
Mere reading of the operative part of the impugned judgment of First Appellate Court, clearly shows that witnesses produced by the petitioners did belong to village where the land is situated as well as original owner, who died where the "Namaz-e-Janaza" was performed; whereas the respondents/defendants have produced witnesses of the area, where the land is situated and "Namaz-e-Janaza" was performed. The witnesses produced by the petitioners/plaintiffs being office bearers of Anjuman-e-Fiqa Jaffaria, did not produce a single document to show that they are office bearers of Anjuman Fiqa Jaffaria. Similarly, receipts are contrary qua dates. According to the Receipt No. 177 Mark - "B" is dated 21.7.1983 and Receipt No. 258 Mark - "B" is dated 2-8-1979, receipt for receipting of Chanda Mark-"D" is dated 19.9.1985, receipt Mark-"E" is dated 2.7.1983 and certificate of Membership of Fiqa Jafaria Mark-"F" is dated 15.2.1981.
In case, dates of receipts are put in juxta position, then both the Courts below were justified for non-believing the receipts as genuine and have rightly rejected the said documents. The judgments cited by the learned counsel of the petitioners clearly reveal that two "Namaz-e-Janaza" were performed as cited in the case, one performed by Sunni Maulvi and the other performed by Shia Maulvi; whereas in the present case, "Namaz-e-Janaza" was only performed by one Maulvi belonging to Sunni Sect. The judgments cited by the learned counsel of the petitioners are distinguished on facts and law. It is also settled principle of law that each and every case is to be decided on its own peculiar circumstances and its facts, as per principle laid down by the Honourable Supreme Court in "Trustees of Port of Karachi vs. Muhammad Saleem" (1994 SCMR 2213). It is pertinent to mention here that the parties are bound by their pleadings. The petitioners have not taken stand in the ground of appeal before the First Appellate Court that the respondents-plaintiffs failed to produce the attesting witnesses of mutation in-question, therefore, the petitioners are not within their rights to agitate this plea before this Court. In arriving to this conclusion. I am fortified by the law laid down by the Superior Courts in "Murad Begum's case" (PLD 1974 S.C. 322) and in "Hussain's case" (PLD 1977 Karachi 320). It is also pertinent to mention here that in Indo-Pak Subcontinent, there is an initial presumption that Muslim is governed by "Hanfi" law unless contrary is established by the strong evidence in view of Sections 28 & 31 of "Muhammadan Law" by "Mollah". In arriving to this conclusion, I am fortified by the law laid down by the Superior Courts in the following judgments:--
"Pathana's case" (PLD 1965 S.C. 134).
"Sabir Hussain's case" (1989 C.L.C. 1591).
"Zain-ul-Hassan's case" (1998 M.L.D. 1857).
"Hussain's case" (PLD 1977 Karachi 320).
"Mst. Sardar Bibi's case" (PLD 1954 Lahore 480).
"Maula Bakhsh's case" (PLD 1952 Sindh 54).
In the present case, both the Courts below have given concurrent findings of fact on Issue No. 1 that late Jaffar Khan is "Sunni" by faith. Whereas the petitioners' counsel failed to point out any material irregularity committed by the Courts below at the time of appreciation of evidence on record by rendering the findings of facts against the petitioners, therefore, findings on this issue are up-held. The petitioners failed to rebut the initial presumption by good evidence and did not bring on record any circumstantial evidence to show that late Jaffar Khan has attended "Majlis" of "Shia" Sect, therefore, therefore, the petitioners failed to discharge its burden of proof by rebutting circumstantial evidence to rebut the initial presumption that later Jaffar Khan is not governed by "Hanfi Law", which is just of aforesaid case law, therefore, judgments of both the Courts below are within parameters prescribed by the Superior Courts in the aforesaid judgments. Similarly, both the Courts below have given concurrent findings of fact on Issue No. 3 after proper appreciation of evidence on record that Mst. Jannatay Bibi was widow of late Jaffar Khan and mutation in-question was sanctioned in accordance with law.
"This is section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with maternal irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matter, it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
The judgment of the Privy Council was considered and relied upon by this Court in "Board of Intermediate & Secondary Education, Lahore. vs. Syed Khalid Mehmood" (NLR 1985 Civil 114).
In view of the what has been discussed above, this revision petition has no merit and the same is dismissed.
(A.A.) Revisional dismissed.
PLJ 2006 Lahore 15
Present: Sayed Zahid Hussain, J.
RAZIA SULTANA and 4 others--Petitioners
versus
Mrs. RAZIA BEGUM and 3 others--Respondents
C.R. No. 2163 of 2004, heard on 22.12.2004.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 47--Execution of decree--Principles--Decree drawn by Court in executable and not Court's judgment/findings--Executing Court cannot go behind decree--Executing Court must take decree as it stands and cannot make any alteration or modification therein while in case of reversal, modification or alteration of decree by Court of last instance, decree is to be executed accordingly. [P. 17] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 47--Execution of decree--Decree in question, contained no mention of delivery of possession--Delivery of possession cannot be delivered to decree-holder by ejecting Court--Executing Court's view that delivery of possession to plaintiff/decree holder was not warranted was correct while Appellate Court's view that delivery of possession be granted to decree holder was not warranted and the same was set aside. [Pp. 18 & 19] B & C
PLD 1963 SC 265; 2002 SCMR 122; 1972 SCMR 237; 1989 SCMR 640; 1994 SCMR 22; AIR 1960 SC 388 and AIR 1977 SC 1201, ref.
Mr. Mansoor-ur-Rehman Afridi, Advocate for Petitioners.
Mr. Ahmad Awais, Advocate for Respondents.
Date of hearing : 22.12.2004.
Judgment
A suit under Section 39 of the Specific Relief Act, for cancellation of sale-deed dated 10.3.1979 had been instituted by Mst. Razia Begum respondent No. 1 against late Dr. Abdul Ghafoor, the predecessor-in-interest of the petitioners. After contest and trial, the same was decreed on 28.4.1998 by the learned trial Court. The judgment was maintained by the appellate Court and C.R. No. 1469/2003 filed by the successors of late Dr. Abdul Ghafoor was dismissed with certain clarification made in paragraph-6 of the judgment on 14.1.2004. Statedly the matter is now pending before the Hon'ble Supreme Court of Pakistan in the form of C.P. No. 643/2004. The learned counsel for the parties state that there is no stay/restraint order passed by the august Court. That is how the execution of the decree was taken in hand by the executing Court.
The first execution petition was filed in the year 1998, which, however, due to the remedies being resorted to by the petitioners, remained pending. It was after the dismissal of the revision petition by this Court on 14.1.2004 that another execution petition was filed by the respondent/decree holder which has given rise to another round of litigation, and the matter again has come before this Court. The warrant of possession ordered by the executing Court was executed on 6.2.2004 and the petitioners were dispossessed. Feeling aggrieved of the execution proceedings, the matters was agitated by the petitioners before the learned District Judge, Lahore, who on 12.2.2004, ordered the withdrawal of the execution petition from the Court of Malik Rehmat Ali, Civil Judge and entrusted the same to Mr. Haider Amin, Civil Judge, where the previous execution petition was pending. Thereafter the possession was restored to the petitioners. For the sake of brevity un-necessary details of interlocutory proceedings and orders is being avoided and only salient features are being mentioned. The executing Court eventually dismissed the execution petition on 12.5.2004 primarily on the grounds that there was no mention in the decree as to possession and the decree could not be executed against the dead person as the legal heirs of Dr. Abdul Ghafoor, had not been impleaded as party to the execution proceedings. Appeal preferred by Respondent No. 1, thereagainst, however, succeeded before the appellate Court which was accepted on 17.8.2004, remanding the matter to the executing Court with the direction that "fresh warrant of possession be issued in favour of the appellant against the respondents/legal heirs of deceased who have been arrayed as judgment debtor in the second execution petition without further delay." This is revision petition thereagainst.
The learned counsel for the parties have been heard and material brought on the record has been considered with their assistance.
The prime contention of the learned counsel for the petitioners with reference to the decree is that since it is silent about delivery of possession, the execution petition was rightly dismissed by the executing Court. It is contended that para-6 of the judgment of this Court dated 14.1.2004 (C.R. No. 1469/2003) has been ignored by the appellate Court as unless the entire property was partitioned, warrant for possession for 16 marlas, 38 ft. cannot be issued. According to him there was no plan on the record of the trial Court to identify the precise area. It is contended that the learned appellate Court has acted illegally and with material irregularity by leaving this matter to be dealt by the Bailiff. Reference has been made by him to Ghulam Muhammad vs. Sultan Mahmud and others (PLD 1963 SC 265) and Sardar Ahmed Yar Khan Jogezai and 2 others vs Province of Balochistan through Secretary, C & W Department (2002 SCMR 122).
The learned counsel for the respondents/decree holders, on the other hand, makes reference to the judgment of the trial Court dated 28.4.1998 and the finding recorded therein qua Issues Nos. 4 and 8. According to him the decree should be construed as consistent with the findings recorded by the Court in the judgment. It is contended that there is no ambiguity either in the judgment or the decree, therefore, possession could be delivered to the decree holder by the executing Court and the learned appellate Court has committed no error or illegality in the matter. According to him the decree holder is being denied the fruits of the decree on technicalities.
There are few settled principles in regard to the execution of a decree such as that; (i) it is the decree drawn by the Court which is executable and not the judgment/findings, (ii) the executing Court cannot go behind the decree; (iii) it must take the decree as it stands and cannot make any alteration or modification therein and (iv) that in case of reversal, modification or alteration of the decree by the Court of last instance, the decree is to be executed accordingly; Reference in this context may be made to Syed Riaz Ahmad Shah and another vs. Dayal Singh College Trust Society and another (1972 SCMR 237), Muhammad Ali vs. Ghulam Sarwar and others (1989 SCMR 640), Mst. Naseem Akhtar and 4 others vs. Shalimar General Insurance Company Limited and 2 others (1994 SCMR 22), Sardar Ahmad Yar Khan Jogezai and 2 others vs. Province of Balochistan through Secretary, C&W Department (2002 SCMR 122), Ghulam Muhammad vs. Sultan Mahmud and others (PLD 1963 SC 265) Topanmal Chhotamal vs. M/s Kundomal Gangaram and others (AIR 1960 SC 388), and Sunder Das vs. Ram Parkash (AIR 1977 SC 1201). Thus in view of these settled principles, the execution proceedings taken by Respondent No. 1 and the orders passed by the Courts are to be examined.
As mentioned above, the suit was decreed on 28.4.1998, the decree that was drawn was to the effect that "It is ordered that the suit of the plaintiff is hereby decreed and the alleged sale-deed dated 10.3.79, is hereby cancelled." This is the decree that was passed by the trial Court. The appellate Court had dismissed the appeal thereagainst on 23.7.2003, maintaining the same decree whereas the revision petition was dismissed by this Court on 14.1.2004, with the clarification made in paragraph-6 of the judgment of this Court. It is evident from the perusal of the decree that there was no mention about grant or delivery of possession. The learned counsel for the respondent decree holder has endeavoured to support the view taken by the learned Additional District Judge in his judgment dated 17.8.2004 and contends that the decree should be read in the light of the findings recorded by the trial Court in the judgment particularly on Issue No. 4 and it should be deemed that the suit had been decreed as a whole as prayed for. This, however, is not possible without reading something into the decree what is not there. Nothing more can be read into the decree as the same is to be taken as it stands. No doubt, while recording finding on Issue No. 4, the learned trial Court had decided the said issue in favour of the plaintiff/decree holder, but it finds no reflection in the decree. Reference at this juncture may appropriately be made to Ghulam Muhammad's case (PLD 1963 SC 265). In the precedent case a declaratory suit had been filed with a relief of possession. The suit was dismissed by the trial Court and the First Appellate Court, however, second appeal was accepted by the High Court but in the decree drawn although relief of declaration was incorporated nothing was said about the relief of possession. The suit for possession was thereafter filed and was dismissed. That litigation ultimately reached before the Supreme Court of Pakistan and the issue of applicability of principle of resjudicata arose in view of the earlier suit and non mention of relief of possession in the decree. It was observed that the decree did not ex-facie grant the relief of possession. The suit for possession that had been dismissed by the Courts below was decreed by the Hon'ble Supreme Court of Pakistan. It shows that the sanctity of the decree remains intact till such time it is corrected, altered or modified by the Court in accordance with law. But so far as the executing Court is concerned, the same is to execute it as it is, subject however, to any modification/alteration therein by the higher forum. In the present case as mentioned above, the decree was silent as to possession. The executing Court thus rightly took the view in his order dated 12.5.2004. In the facts and circumstances of the case I also find substance in the contention of the learned counsel for the petitioner that an essential function of the Court cannot be entrusted to the Bailiff, who is merely excepted to carryout the mandate given to him by the Court. The appellate Court has thus not acted in accordance with law. The judgment of the appellate Court is, therefore, not sustainable in law which is set aside.
The learned counsel for the respondent/decree holder has complained about the delay that has occurred in this case and that the decree holder has not been able to reap the fruits of the decree since long. There is no cavil that there should be expeditious disposal of the matters and the litigants should get justice as expeditiously as possible but in that effort settled principles of law cannot be trampled or ignored. The petitioners cannot be wholly blamed for the delay in the matter.
As a result of the above, the revision petition is accepted with no order as to costs.
(A.A.) Revision accepted.
PLJ 2006 Lahore 19
Present: Muhammad Muzammal Khan, J.
M.M. KHAN--Petitioner
versus
FEDERAL GOVT. EMPLOYEES HOUSING FOUNDATION--Respondent
W.P. No. 3377 of 2003, decided on 11.5.2005.
Constitution of Pakistan, 1973--
----Art. 199--Federal Public Service Commission (Composition and Conditions of Service) Regulation, 1978--Rule 18--General Clauses Act, 1877, S. 24-A--Petitioner as Secretary, Federal Public Service Commission applied for a plot to the respondent--Allocation of plot provisionally in his name--Subsequently plot was cancelled from his name on the ground that petitioner being a contractual employee of Federal Public Service Commission, was not a civil servant--Challenged through Constitutional petition--Validity--The petition irrespective of his post remained in government service till 5.11.1999 and was a civil servant within the meaning of Civil Servant Act, 1973--Entitlement and status of service of petitioner was not correctly decided, out of sketchy/unreasoned order which being violative of Section 24-A of the General Clauses Act, 1877 cannot be graded as lawful--Impugned orders were declared void being without any lawful authority and of no legal consequence--Writ as prayed issued in circumstances. [Pp. 23 & 24] A, B & C
1998 SCMR 2268 and PLD 2002 SC 630, referred.
Mr. M. Saleem, Advocate for Petitioner.
Malik Muhammad Nawaz, Advocate for Respondents.
Date of hearing : 11.5.2005.
Order
Instant Constitutional petition prayed orders dated 2.12.2002 and 4.2.2003, passed by Respondent No. 1 to be declared illegal, void and of no legal consequence whereby Plot No. D-13/E Phase-III Sector G/13, Islamabad, allotted in the name of the petitioner on 27.8.1999, was cancelled.
Succinctly, relevant facts are that the petitioner initially started his service career with the Government of Pakistan in April, 1974, in BPS-20 as Managing Director of Pak Iran Agro Live Stock Complex, and thereafter he remained posted on different postings. He was transferred as Secretary Federal Public Service Commission on 21.9.1994 wherefrom he was drawing his salary in Grade-21 besides subscribing to GPF. Petitioner while holding the office of Secretary Federal Public Service Commission on 20.8.1996, in response to an advertisement/invitation by the Federal Government Employees Housing Foundation for allotment of plots to the government servants in Sector G-/13, Islamabad, applied vide Application No. 36051 for allotment of plot alongwith Pay Order No. 174173 dated 21.8.1996, for an amount of Rs. 1,25,000/-. The petitioner distinctly stated in his application that he was working at that time, as Secretary, Federal Public Service Commission besides disclosing all his relevant details. Petitioner being a civil servant as defined by Civil Servants Act, 1973 fulfilled all the terms/conditions of allotment/allocation of the plot and thus, he was allocated Plot No. 13/E, Sector G-13, Islamabad, provisionally on 27.8.1999.
Petitioner being disappointed with the development work by the respondents, represented before them but his representation, according to him, annoyed the officials of the respondents who after seeking advice from Respondent No. 2 cancelled his plot on the basis of advise so received through the impugned order, on the ground that the petitioner being a contractual employees of Federal Public Service Commission, was not a civil servant in terms of Act of 1973. His efforts to convince the respondents that he was a civil servant at the relevant time and was a bona fide employee of the Federal Government, entitled to the benefits of a civil servant, brought no fruitful result, which necessitated maintaining of instant Constitutional petition with the relief noted above.
The learned counsel for the petitioner submitted that the petitioner on the date of application for allotment of plot i.e. 25.8.1996 was a civil servant and continued to be so till the date of his retirement i.e. 5.11.1999. Further contended that the petitioner while holding the office of Secretary, Federal Public Service Commission, was governed by statutory rules, in the name of Federal Public Service Commission (Composition) and Conditions of Service) Regulations 1978 which provided that the Secretary will be a civil servant and shall be governed by Civil Servants Act 1973. A reference to Gazette Notification No. 11/3/97-E-I by the Government of Pakistan Cabinet Secretariat (Establishment Division) dated 2.2.1997 was made to contend that the petitioner was to continue as civil servant till the date of his retirement whereafter his job was to become contractual. Reference to alike notification dated 17.12.1999 was also made to claim that the petitioner was governed by Rules/Regulations, as applicable to other civil servants in BPS-21. Precise submission of the petitioner was that through he remained Secretary/Member Federal Public Service Commission from 26.9.1994 to 5.9.2000 but earlier to his retirement i.e. 5.11.1999 he was a civil servant and could not be deprived of his legitimate right of allotment. It was also argued that the petitioner was not provided an opportunity of hearing earlier to the impugned orders which were sketchy/non speaking orders and thus being violative of Section 24-A of the General Clauses Act, were not sustainable at law, besides being violative of principle of natural justice. Principle of locus-poenitentiae was also relied in support of the prayer in the petition with the arguments that after receipt of two instalments and allocation of plot, the same could not be rescinded at the back of the petitioner.
The learned counsel appearing on behalf of the respondents assertively resisted the arguments of the petitioner with the submissions that the petitioner had been serving in different private/public sector organization in various capacities hence was not entitled to allotment of any plot in scheme of the respondents, so the withdrawal of his provisional offer of allotment vide letter dated 4.2.2003 was justified. It was further submitted that at the most case of the petitioner fell within the 10 percent quota reserved of employees of Autonomous Bodies of the Federal Government but in this quota as well, the petitioner did not quality as the last applicant had the date of birth as 1.6.1937 whereas the petitioner was born on 5.11.1939.
I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith. Respondents duly advertised their Sector, G-13/Phase-III, for Federal Government Employees, on ownership basis by laying down terms/conditions for allocation/distribution of plots. The criteria so given by the respondents in their brochure reads as under:--
"The available residential plots shall be distributed among the various categories of applicants who fulfil the criteria for eligibility as given below:--
(a) Judges of the Supreme Court, High Courts and Federal Shariat Court and Federal Government Employees who have been declared as civil servants as defined under Civil Servants Act 1973 (including civilian employees paid from defence estimates) and were in service on 1.4.1996.
(b) Employees of autonomous/semi-autonomous organizations and public sector corporations under the administrative control of the Federal Government (including employees serving in the Federal Government Employees Housing Foundation), who were in service on 1.4.1996.
(c) Journalists.
(d) Retired Federal Government employees governed under Civil Servants Act, 1973.
(e) Widows of those eligible Federal Government Employees who died during service or those Federal Government employees who became disabled during service or extremely hardship cases.
Note: Armed forces personnel are not eligible to participate in the scheme."
"during the process of scrutiny it transpired that you are not civil servant according to Civil Servants Act, 1973. So you are not eligible for allotment of plot".
"It is informed that your case was referred to the Establishment Division for seeking advice whether you were Civil Servant at the time of applying for allotment of a plot in Phase-III of the Housing Scheme. The Establishment Division vide their Letter No. 1/142/94-E-6 dated 22nd November, 2002 informed that you have served in different/private and public sector organizations in various capacities. Therefore, you cannot be termed as civil servant."
Rule 18 of the Federal Public Service Commission (Composition and Conditions of Service) Regulations 1978, reads as under:--
"Terms and conditions of service of officers and staff.--The terms and conditions of the Secretary and other officers and staff of the Commission shall be the same as of civil servants of corresponding grades under Government and they shall be governed by the Civil Servants Act, 1973 (LXXI of 1973), and the rules made thereunder."
Petitioner also produced a Notification No. II/3/97-E-/I dated 2.2.1997 whereby he was elevated to BS-21, Federal Public Service Commission for a tenure of three years which clearly laid down that after the date of his retirement i.e. 5.11.1999, he will be treated as re-employed on contract basis. Similar is the clarification in letter-dated 17.10.1999 issued by Cabinet Secretariat (Establishment Division) that Rules/Regulations will govern him as applicable to other civil servant in BS-21. Since, the learned counsel for the respondent did not refute the date of retirement of the petitioner namely 5.11.1999 thus, in view of the above material it is clear that the petitioner irrespective of his post, remained in government service till 5.11.1999 and was a civil servant within the meaning of Civil Servants Act, 1973 and his plot allotted in the capacity of a Federal Government Employee could not be cancelled by the respondent on mere unfounded assumptions and that too, without hearing the petitioner, without giving reasons in support of the impugned order of cancellation which was prejudicial to his interest, especially when he was equipped with voluminous documentary proof in support of his claim of being a civil servant. Assuming for the sake of arguments that posting of the petitioner at the relevant time, as Secretary to Federal Public Service Commission, was for a specified period but the same does not make his job, contractual. Petitioner while holding office of the Secretary continued to be a civil servant in terms of Rule 18 (Ibid)."
Above reproduced letters of the respondents show that entitlement and status of service of petitioner was not correctly decided, out of sketchy/unreasoned order which being violative of Section 24-A of the General Clauses Act, 1877 cannot be graded as lawful. The Honourable Supreme Court in the cases of Messrs Airport Support Services Versus The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) and Col. (Retd.) Ayub Ali Rana Versus Dr. Carlite S. Pune and another (PLD 2002 Supreme Court 630) ruled that any Authority or person exercising/discharging statutory obligations is expected to act justly, fairly and for advancement of the purposes of the enactment, through reasons reflecting his state of mind.
For the reasons noted above, I have no doubt in my mind that the petitioner was a civil servant at the relevant time of filing applications for allotment of plot, mentioned in the Brochure of the respondents and he continued to be so, till his retirement on 5.11.1999, thus, the unreasoned impugned orders dated 2.12.2002 and 4.2.2003, are without any lawful authority and of no legal consequence, hence, the same are declared to be void and consequently, writ as prayed, is issued with no order as to costs.
(R.A.) Petition accepted.
PLJ 2006 Lahore 24
[Rawalpindi Bench, Rawalpindi]
Present: Muhammad Akhtar Shabbir, J.
YEZDIAR HOMI KAIKOBAD & another--Appellants
versus
FEROZSONS LIMITED & 3 others--Respondents
F.A.O. 155 of 2003, heard on 26.11.2004.
(i) Arbitration Act, 1940 (X of 1940)--
----S. 34--Cantonment Rent Restriction Ordinance, 1963, S. 17--Filing of ejectment petition by appellant--Respondent appeared through counsel and filed memo of appearance--Case adjourned for filing reply--Filing of application u/S. 34 of Arbitration Act and two applicationer under O. 1, R. 10 C.P.C. by respondent--Acceptance of application by Rent Controller who referred the matter for arbitration--Challenged to--Validity--Respondents have failed to apply to the Court for referring the matter to arbitration before filing of written statement or taking any other steps in the proceedings, the adjournment sought by respondent was a step in the proceedings--Appellant had not applied to the Court at the first date of hearing of the ejectment petition and failed to take the benefit of Section 34 of the Act, while after seeking adjournment of the case--Petition accepted and impugned order of Addl. Rent Controller, set aside in circumstances. [Pp. 27 & 29] B, C & D
PLD 1952 Dacca 22 and 1984 CLC 1605, relied.
(ii) Arbitration Act, 1940 (X of 1940)--
----S. 34--Application for referring the matter to arbitrator--Held: The party must without any ado and before submitting to the jurisdiction of the Court inform the Court in an unequivocal terms that he is going to insist upon the implementation of the Arbitration Clause--Further held: Where the defendant appears in the Courts obtains adjournment for filing written statement such party deemed to have waived his right and proceeding could not be stayed. [P. 27] A
2000 CLC 206; AIR 1948 Cal. 59; PLD 1952 Dacca 22; PLD 1965 Dacca 260; PLD 1980 BJ 1; 1984 CLC 1605; PLD 1985 Kar. 745; PLD 1986 Kar. 138; PLD 1986 Kar. 1 and PLD 1993 Lah. 306, referred.
Qazi Zahid Hussain, Advocate for Appellants.
Mr. Bashir Ahmad Ansari, Advocate for Respondents.
Date of hearing : 26.11.2004.
Judgment
This appeal has been filed against the order dated 26.6.2003 passed by the learned Additional Rent Controller, Rawalpindi Cantonment.
The facts giving rise to the present appeal are to the effect that an ejectment petition under Section 17 of the Cantonment Rent Restriction Ordinance, 1963, has been filed by Yezdia Home Kaikobad, appellant herein, against Feroze Sons Limited and two others. On 31.8.2001, the learned Additional Rent Controller issued process against the respondents to face the ejectment petition. The respondents were served who appeared on 20.9.2001 in person as well as through their counsel and Mr. Munir Bashir Ansari, Advocate, filed memo of appearance on behalf of Respondents Nos. 1 and 2 but the Court again summoned them for 23.10.2001. On the date too Mr. Munir Bashir Ansari, Advocate, filed memo of appearance on behalf of all the three respondents. The case was then adjourned to 13.11.2001 and the request was made by the counsel for the respondents to file the reply of the application/ejectment petition. The case had been adjourned due to one reason or the other. On 17.1.2002, two applications under Order 1 Rule 10 CPC and one application under Section 34 of the Arbitration Act have been filed by the respondents. The learned Additional Rent Controller after hearing the objections of the parties accepted the application filed under Section 34 of the Arbitration Act, 1940 and referred the matter for arbitration but did not made any order on the two applications. This order has been assailed by the appellants through the instant appeal.
The moot point for determination before this Court is that whether the application for referring the matter to arbitration was filed within time and the Court was competent to refer the dispute for its resolution through arbitration.
Learned counsel for the respondents when confronted that, on the very first day, the application for referring the matter for arbitration has not been filed and on many dates, the proceedings of the ejectment petition were conducted by the learned Additional Rent Controller contending that he had filed the applications under Order 1 Rule 10 CPC so that the question of implementation of necessary party be decided.
On the other hand, learned counsel for the appellants vehemently opposed the arguments of the learned counsel for the respondents contending that the application for referring the matter to arbitration, if there was any arbitration clause in the agreement, would have been filed at the earliest on the very first day of the appearance of the respondents.
I have heard the learned counsel for the parties and perused the record. Respondent No. 3 appeared in Court with his counsel and Mr. Munir Bashir Ansari, Advocate, had also filed Memo of appearance on behalf of Respondents Nos. 1 and 2 and thereafter on 5.10.2001 he filed another Memo of appearance on behalf of Respondent No. 3 and on 13.11.2001, he requested for adjournment for filing the reply of the application and the ejectment-petition was adjourned to 6.12.2001 and on 17.1.2002, three applications under Order 1, Rule 10 CPC and one under Section 34 of the Arbitration Act, 1940, were filed.
"S. 34--Power to stay legal proceedings where there is an arbitration agreement. Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings, and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and will to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings."
From the bare reading of the above provisions of the Statute, it is quite clear that any party to the proceedings may at any time before filing a written statement or taking any step in the proceedings can apply to the Court for referring the matter to the arbitration must without any ado and before submitting to the jurisdiction of the Court inform the Court in an unequivocal terms that he is going to insist upon the implementation of the Arbitration Clause, but where the party/defendant appears in the Court, obtains adjournments for filing written statement such party deemed to have waived his right and proceedings could not be stayed. Reliance in this behalf can be placed on Muhammad Ilyas Khokhar vs. Ihsan Illahi Mughal (2000 CLC 206 (Lahore), Sahan Kumar Bhattacherjee vs. Sunil Kumar Bhattacherjee and others (AIR 1948 Cal. 59), New Bangal Shipping Company vs. Eric Lancaster Stump (PLD 1952 Dacca 22), Muhammad Idris and others vs. Tobarak Hossain (PLD 1965 Dacca 260), Mubarik Cotton Factory vs. Messrs General Agencies, Multan (PLD 1980 BJ I), Akbar Cotton Mills Ltd. vs. Messrs VES/Ojuanojo Obtedinenije Teck/Amesh Export and another (1984 CLC 1605), Messrs ASLO Marines Ltd. vs. M.T.Magda and another (1985 Kar. 745), Eckhardt & Company Marine GMBH, West Germany and another vs. Muhammad Hanif (PLD 1986 Kar. 138), Uzin Export Import Enterprises vs. Iftikhar & Company Ltd. (PLD 1986 Kar. 1) and Messrs Alazizia Industries Uch Sharif Road, Ahmadpur East vs. Messrs Alfalah Insurance Company Ltd. and 4 others (PLD 1993 Lah. 306).
It is an admitted position that the respondents have failed to apply to the Court for referring the matter to arbitration before filing of the written statement or taking any other steps in the proceedings, the adjournment sought by the respondent was a step in the proceedings.
In the case of New Banghal Shipping Company vs. Eric Lancaster Stump, (PLD 1952 Dacca 22), the defendant asked for adjournment of the case to file written statement and after that the defendant applied to the Court for the stay of the proceedings and his application was rejected on the ground that it was not filed at the earliest possible opportunity and the Honourable Judges of the Dacca High Court observed as under:--
"On adjourned date defendant filed two applications one for further time for filing written statement and the other under Section 34 of the Arbitration Act for staying the suit. Objection petition was not confined to question of jurisdiction. It contained grounds on merits of case and was without reservation and all this amounts to step in proceedings and the suit was not stayed.
In Muhammad Idris and others' case PLD 1965 Dacca 260 (supra), a Division Bench of Dacca High Court relying on New Bangal Shipping Company vs. Eric Lancaster Stump of Singapore held that :
"An application for time to file written statement to certain circumstances might be regarded as amounting to steps in the proceeding within the meaning of Section 34 of the Arbitration Act and in this Muhammad Idris's case the petitioners did not ask for stay before taking any step in proceedings and it was held that the filing of written statement is surely a kind of step taken in the proceedings and a prayer for time to put in written statement for the purpose of contest in surety another kind of step within the meaning of Section 34 of the Arbitration Act."
In case of Mubarik Cotton Factory PLD 1980 BJ 1 (supra) it was held that:--
"an early application for extension of time to file written statement amounts to taking step in the proceedings and in this case ex-parte proceedings were ordered and the defendant applied to set aside the ex-parte proceedings through an application which was set aside on 15.9.1968 and thereafter, the application for stay was filed and during the pendency of the stay application adjournments were obtained thrice on 15.1.1968, 31.1.1968 and 16.2.1968 for a compromise. His Lordship Mr. Justice Abdul Shakoor-ul-Islam who became the Chief Justice of the Lahore High Court afterwards; observed that while getting the adjournments on stay application for a compromise the party had submitted, to the jurisdiction of the Court and did not insist upon the implementation of the Arbitration Clause and thereafter, the party was not entitled to ask for stay of proceedings."
In case of Akbar Cotton Mills Ltd, 1984 CLC 1605 his Lordship Mr. Justice Saeed-uz-Zaman Siddiqui, Judge of Sindh High Court (them Honourable Chief Justice of Supreme Court of Pakistan) observed that:--
"a party applying under Section 34 of the Arbitration Act does not have a right to obtain stay of legal proceedings in Court. Such an order purely discretionary and in appropriate cases, the Court may refuse to stay the proceedings in spite of an arbitral clause in the agreement between the parties which provided for reference of dispute arbitration. No doubt the Court has to exercise this discretion in a judicious manner but the discretion conferred on the Court can neither be curtailed nor circumvented by means of agreement between the parties. It is true and ordinarily when a party has entered into an agreement of which the arbitral clause is an integral part, he should not receive assistance from the Court, if he resiles from it, but this does not mean that even in a case where the Court is satisfied that the very purpose and objection of the arbitration would be frustrated or it is not likely to be achieved it will stay the legal proceedings and direct that parties to have recourse to arbitral clause. No doubt one of the commonly understood object of inserting an arbitral clause in commercial agreements is to avoid expenses and the conventional delays experience in Court of law but the paramount and avowed object of arbitration still remained the same namely the resolution of dispute between the parties is a fair, just and impartial manner. This letter stated objected cannot be sacrificed in the name of less expensive and speedy mode to settle the dispute between the parties. Therefore, where the Court finds that a party to the dispute is not likely to get a fair, just or impartial treatment of his cause in arbitration proceedings it may refuse to stay the legal proceedings in Court brought in contravention of the arbitral clause in the agreement under Section 34 of the Arbitration Act."
In view of the above discussion and following the dictum laid down in the cases referred supra, I am of the considered view that the appellants had not applied to the Court at the first date of hearing of the ejectment petition and failed to take the benefit of Section 34 of the Arbitration Act, 1940, while after seeking adjournment of the case.
For the foregoing reasons, this petition is accepted and the impugned order dated 26.6.2003 passed by the learned Additional Rent Controller referring the matter to arbitration is set aside and the petition shall be deemed to be pending before him, who will decide the same within a period of ninety days from the date of this order in accordance with law.
(R.A.) Petition Accepted.
PLJ 2006 Lahore 29
[Rawalpindi Bench Rawalpindi]
Present: Muhammad Akhtar Shabbir, J.
Mst. NOREEN IQBAL--Petitioner
versus
SOHAIL IQBAL and others--Respondents
T.A. No. 3/C/04 and C.M. No. 126-C of 2004, decided on 18.4.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 24--Divorce Act, 1869, S. 10--Court of civil judge was empowered to hear the petitions filed u/S. 10 of the Divorce Act, 1869 and the procedure in C.P.C. is also attracted to the cases tried by Civil Court and S. 24 of C.P.C. empowers the High Court to transfer any case pending before Civil Court to any other Court of competent jurisdiction. [P. 35] D
(ii) Divorce Act, 1969--
----S. 10--Remedy of appeal--Assailed order of civil Judge passed in any suit or proceeding under the Divorce Act, 1869, appeal shall be filed in like manner as the decree and orders of the Civil Court made in exercise of its original jurisdiction, meaning thereby to the District Court or to High Court--Held: The remedy of appeal is a statutory remedy provided under the Special Act. [P. 34] B
(iii) West Pakistan Family Courts Act, 1974 (XXXV of 1964)--
----S. 25-A--Transfer of a family case filed by non-muslim from one Court to another--Transfer of the family suit from one Court to another is a matter of procedure only--Held : Application of S. 25-A to the cases of non-muslims is not barred. [P. 34] C
1981 CLC 195; PLD 1985 Kar. 362; 1994 MLD 1078; PLD 1971 Kar. 857 and PLD 1998 Kar. 42, relied.
(iv) West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----Ss. 5, 25-A and Schedule--Divorce Act, 1869, S. 10--Civil Procedure Code (V of 1908), S. 24--Application for transfer of a family case filed by Christian spouses--Application of the Family Courts Act in the cases of Christian--Family Courts Act 1964 and the Rules made there-under are not applicable to cases of Christian community--Contention of--Held: Family Courts possess exclusive jurisdiction in matters specified in schedule to the Family Court Act, 1964--Further held: There is no bar in Family Court Act that it is not applicable to the family cases filed by non Muslims. [P. 33] A
1981 CLC 195; PLD 1985 Kar. 362; 1994 MLD 1078; PLD 1971 Kar. 887 and PLD 1998 Kar. 42, relied.
Mr. Sana Ullah Zahid, Advocate for Applicant No. 1.
Mr. Ajmal Kamal Mirza, Advocate for Petitioner.
Date of hearing : 18.4.2005.
Order
A transfer application under Section 25-A of the Family Courts Act, 1964, read with Section 24 of the Code of Civil Procedure and Section 45 of the Divorces Act, 1869, has been filed by Mst. Noreen Iqbal against the respondent Sohail Iqbal/applicant for transfer of the case titled, "Sohail Iqbal vs. Noreen Iqbal" under Section 10 of the Divorce Act, 1869, for dissolution of marriage filed by the respondent. The learned Judge of this Court vide order dated 19.1.2004 has withdrawn the said case from the Court of Mr. Mumtaz Ahmad Tarar, Judge Family Court, Rawalpindi and entrusted the same to Senior Civil Judge/Judge Family Court, Jhelum, to proceed further in the matter. Sohail Iqbal applicant has filed the present application for recall of the aforesaid order transferring the petition to the Judge Family Court, Jhelum.
Learned counsel for the applicant contends that the spouses are Christian by religion and the West Pakistan Family Courts Act, 1964, and the Rules made there-under are not applicable to the family disputes of the Christian community. Further contends that under the said Act the Court has the jurisdiction where the parties/spouses residing or resided. Learned counsel submits that the parties lastly resided at Rawalpindi and the learned Civil Judge has the jurisdiction to hear the petition filed under Section 10 of the Divorce Act, 1869. Further submits that the Rules under West Pakistan Family Courts Act, 1964, are inconsistent with the Divorce Act, 1869. Reliance in this context has been placed on Mrs. Daphne Joseph. vs. Malik Eric Roshan Khan (PLD 1978 Karachi 336), Sultan Ahmad vs. Mst. Mehr Bhari and another (PLD 1982 F.S.C. 48), Mian Zaiud Din vs. Punjab Local Government and others (1985 S.C.M.R. 365). The Chairman, Railway Board, Lahore and others vs. Messrs M. Wahabud Din and sons (PLD 1990 Supreme Court 1034) and Messrs Mehraj Flour Mills and others vs. Provincial Government and others.
On the other hand, learned counsel for the petition Mst. Noreen Iqbal, has vehemently opposed the arguments of the learned counsel for the applicant/respondent contending that the procedural provisions of the West Pakistan Family Courts Act, 1964, are applicable to the non-Muslims and in this respect place reliance on the cases of Mulchand vs. Smt. Indra and others (PLD 1985 Karachi 362), Mst. Shamshad Yousaf vs. Yousaf Masih (1994 M.L.D. 1078) and Ramdas vs. Mst. Bernadat (PLD 1998 Karachi 42).
I have heard the arguments of the learned counsel for the parties and perused the record. Sohail Iqbal had filed a petition under Section 10 of the Divorce Act, 1869, against his wife Mst. Noreen Iqbal for dissolution of marriage. Section 10 of the Act reads as under:--
"Section 10.--When husband may petition for dissolution: Any husband may present a petition to the [Court of Civil Judge] praying that his marriage may be dissolved on the ground that his wife, has, since the solemnization thereof, been guilty of adultery.
When wife may petition for dissolution: Any wife may present a petition to the (Court of Civil Judge) praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman;
or has been guilty of incestuous adultery.
or of bigamy with adultery.
or of marriage with another woman with adultery.
or of rape, sodomy or bestiality.
or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro.
or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.
"Section 3(2),--"Court of Civil Judge" means in the case of any petition under this Act, the Court of the Civil Judge within the local limits of whose ordinary jurisdiction the husband and wife resided or last resided together."
From the above provisions of law, it clearly means that the petition can be filed in the Court of Civil Judge where the spouses resided or bad been residing together.
Schedule under Section 5 of the West Pakistan Family Courts Act, 1964, provided the following suits triable by the Judge Family Court.
(1) Dissolution of marriage including Khula.
(2) Dower.
(3) Maintenance
(4) Restitution of conjugal rights.
(5) Custody of children.
(6) Guardianship.
(7) Jactitation of marriage.
(8) Dower.
(9) Personal property and belongings of a wife.
"Rule 6.--The Court which shall have jurisdiction to try a suit will be that within the local limits of which:--
(a) the cause of action wholly or in part has arises; or
(b) where the parties resided together:
Provided that in suits for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction."
"Section 5.--Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule."
"I am afraid none of the contentions raised above has any substance. It has been held in Mrs. Daphne Juseph vs. Malik Eric Roshan Khan (1), and Casper vs. Jannifer and another (2), that the provisions as contained in the West Pakistan Family Courts Act, 1964, are applicable to Muslims as well as non-Muslims equally.
In another case, Mulchand vs. Smt. Indra and others (PLD 1985 Karachi 362), it was observed by the Hon'ble Judge of the Sindh High Court, that the cases relating to marriage and family affairs of non-Muslims including Hindus not excluded from the ambit of Section 5 of the West Pakistan Family Courts Act, 1964. The Family Courts Act is a procedural statue and does not come into conflict with the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946. A similar point regarding transfer of the family suit under Section 5 of the West Pakistan Family Courts Act, 1964, has been dealt with by an Hon'ble Judge of the Lahore High Court in a case of Mst. Shamshad Yousaf vs. Yousaf Masih (1994 M.L.D. (Lahore) 1078). In this case, both the parties were Christian and the Hon'ble Judge while resolving the controversy observed that it would be seen from the "preamble" that the Family Courts, Act was enacted with the purpose to make provision for the establishment of Family Courts for expeditious settlement and disposal of disputes relating to family affairs or matters connected therewith. There is no reference of any religion or any particular enactment. The proposition becomes further clear if reference is made to the Schedule under Section 5 of the Act in which only the subjects like dissolution of marriage, dower, maintenance etc., have been mentioned instead of referring to particular enactment or religion. In the judgment, reliance has been placed on the case of Mrs. Daphne Joseph vs. Eric Roshan Khan (PLD 1971 Karachi 887), wherein it has also been held that there is nothing in the Family Courts Act by which it can be said that it is inapplicable to the Christians. The above view was further followed in Ramdas vs. Mst. Bernadat (PLD 1988 Karachi 42), wherein it was also observed that the case of every non-Muslim pertaining to family matters irrespective of religion would come under the provisions of West Pakistan Family Courts Act, 1964.
Against the decree or order made by the Court of Civil Judge in any suit or proceedings under the Divorce Act, 1869, appeal shall be filed in like manner as the decree and orders of the Court made in exercise of its original jurisdiction or an appeal from under the laws or rules for the time being in force. It would mean that the appeal against the order and judgment of the Civil Judge would lie to the District Court or to the High Court. The remedy of appeal is a statutory remedy provided under the special Act.
So far the decrees and orders of the Judge Family Court are concerned, Section 14 of the Act provided the remedy of appeal against the decision given or decree passed by the Family Court to the District Court and to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or any person notified by the Government to be of the rank and status of a District Judge or an Additional District Judge.
The controversy regarding application of the provisions of West Pakistan Family Courts Act, 1964, have also been dealt with the cases of non-Muslims under Divorce Act, 1869, Christian Marriages Act, Parsi Marriages and Divorce Act, 1936, and Native Converts Marriage Dissolution Act. Federal Shariat Court, in the case Sultan Ahmad vs. Mst. Mehr Bhari and another (PLD 1982 F.S.C. 48) while dealing Section 14(2)(a) of the Act held that in the case of Federation of Pakistan vs. Mst. Farishta, the word, Muslim Personal Law in Article 203 of the Constitution has been interpreted to include all statutory laws which are enforced for Muslims only. This Court's jurisdiction is excluded in matters of Muslim Personal Law. Since it is clear to us that clause (a) deals only with dissolution of marriage of Muslims it will have to be held that "notwithstanding" the fact that some or most of the provisions of the West Pakistan Family Courts Act may be applicable to Muslims and non-Muslims alike, the applicability of Section 14(2)(a) is confined to Muslims only and as such it falls within the category of Muslim Personal Law. So far as the observation of the Court with regard to Section 14 of the Act, it has been observed that Section 14 deals with matters of procedure, which are beyond the jurisdiction of Shariat Court.
The transfer of the family suit from one Court to another is a matter of procedure only, therefore, application of Section 25-A of the West Pakistan Family Courts Act, 1964, to the cases of non-Muslims is not barred. This argument is backing of the case-laws referred to above. Furthermore, the Court of Civil Judge is empowered to hear the petitions filed under Section 10 of the Divorce Act, 1869, and the procedure provided in the Civil Procedure Code is also attracted to the cases tried by the Civil Court and Section 24 of the CPC empowers the High Court to transfer any case pending before the Civil Court to any other Court of competent jurisdiction.
In view of the above discussion, it is observed that there is no illegality in the order dated 19.1.2004 passed by the learned single Judge of this Court transferring the case of the parties to some other Court. Consequently, for the foregoing reasons, the instant application being devoid of any forced is dismissed.
(M.A.R.) Application dismissed
PLJ 2006 Lahore 35
[Multan Bench Multan]
Present: Sh. Hakim Ali, J.
MUHAMMAD RAMZAN--Petitioner
versus
JUDGE FAMILY COURT KEHROR PACCA DISTT. LODHRAN and another--Respondents
W.P. No. 5593 of 2004, decided on 1.12.2004.
(i) Constitution of Pakistan, 1973--
----Art. 199--Availability of remedy of writ in suit for recovery of dowery articles--Validity--As a substitute for the appeal or revision with regard to those decrees for which legislature in its wisdom, has closed remedy of appeal or revision through statutory provision--Exercise of jurisdiction under Art. 199--There must be grave injustice being done to the parties to the proceedings--Petition dismissed. [Pp. 36 & 37] A, B & C
(ii) Customary Law--
----Recovery of dowery articles--Contention of--No dowery has been given to the plaintiffs/respondent at time of marriage--Petitioner failed to prove the statement--Held: Parents of girl had given nothing in dowery to her daughter at the time of her marriage as it is being a custom in Pakistan which is based upon tradition of our Prophet, Muhammad (P.B.U.H)--Petition dismissed. [P. 37] D
Malik Javed Akhtar Wains, Advocate for Petitioner.
Date of hearing : 1.12.2004.
Order
Mst. Kalsoom, Respondent No. 2, had filed a suit for recovery of dowry articles or in the alternative awarding of their price amounting to Rs. 47,400/-, before the learned Judge Family Court, Kehror pacca. The suit was contested by the defendant/petitioner. Issues were framed and learned Judge Family Court passed a decree on 28.2.2004 with regard to the return of dowry articles or in the alternative to pay their price equivalent to Rs. 25,000/- in favour of plaintiff/Respondent No. 2. The aforesaid judgment and decree has been challenged through this writ petition.
Petitioner's learned counsel submits that the plaintiff had not brought any dowry articles at the time of marriage. She was not able to give out the details of all the dowry articles allegedly delivered to her in her statement. There was no evidence/corroboration to the statement of the plaintiff and the evidence brought on the record was not properly appreciated by the learned Court below. Therefore, the impugned judgment and decree requires to be set aside.
After considering the arguments of learned counsel for the petitioner and from the perusal of the record, it may be pointed out that the remedy of writ cannot be made available, accessible or outstretched as a substitute for the appeal or revision with regard to those decrees for which the legislature in its wisdom, has closed the remedy of appeal or revision through statutory provision. If the relief/remedy of Article 199 of the Constitution of Islamic Republic of Pakistan 1973 is extended to such decrees, it would be creative of an impression that for a decree of meager amount, an extra ordinary remedy (writ petition) is available from a superior Court (High Court) while of a decree of huge and large amount, the appeal and that before the subordinate Court can only be availed of. Meaning thereby, the intent of the legislature to grant the finality to the decision of learned Judge Family Court, especially to a decree passed up to the extent of an amount of Rs. 25,000/- with regard to the dowry articles in favour of wife would be tarnished. As the decree has been passed in the instant case to the extent of Rs. 25,000/- so, this writ petition cannot be maintained. I have got support to form this opinion from the following judgments:--
"1996 SCMR 1165 (Syed Saghir Ahmad Naqvi vs. Province of Sindh and another) and 1981 Law Notes 505 (International Food Centre Ltd. vs. Unified Bank Ltd. Etc.).
Although the above mentioned decisions were emanating from interlocutory orders yet principle would be the same.
(H.A.) Petition dismissed
PLJ 2006 Lahore 37
[Rawalpindi Bench Rawalpindi]
Present: Syed Shabbar Raza Rizvi, J.
FAISAL ZULFIQAR--Petitioner
versus
JUDGE FAMILY COURT RAWALPINDI and another--Respondents
W.P. No. 3403 of 2004, decided on 1.2.2005.
West Pakistan Family Court Acts, 1964 (XXXV of 1964)--
----S. 7(3)(ii)--Interpretation of--Suit for dissolution of marriage--Documents of reliance--Filing of "relies"--Held: One can only rely on a document, a paper or thing which exist--Document in dispute did not exist--At the time of filing of dissolution suit, how could she--Rely on the same at that time--S. 7(3)(ii) not attracted--Petition dismissed. [Pp. 38 & 39] A, B, C, D & E
Ch. Tajammal Murad, Advocate for Petitioner.
Mr. Tahir Jameel Butt, Advocate for Respondent No. 2.
Date of hearing : 1.2.2005.
Order
In the present writ petition, an order of the Judge Family Court; Rawalpindi dated 27.11.2004 has been impugned whereby Respondent No. 2 was allowed to bring on record the decision of revision petition dismissed by the Court of learned Sessions Judge, Sialkot. The learned counsel for the petitioner contends that the respondent had not mentioned the said document in her list of reliance as it is required under Section 7 sub-section 3(ii) Family Court Ordinance. He further contends that earlier that request of Respondent No. 2 was turned down by Respondent No. 1, therefore, Respondent No. 1 was not competent to grant the same subsequently. Accordingly to him, the impugned order is clearly violative of mandatory provisions of Section 7 sub-section 3(ii) of the Family Court Ordinance, therefore, liable to be set aside.
The learned counsel for Respondent No. 2 submits that suit for dissolution was filed by Respondent No. 2 on 9.9.2003, whereas, the private complaint was filed in December, 2003, against which a criminal revision was filed by the petitioner which was decided by the learned Sessions Judge, Sialkot on 29.5.2004. He elaborated that the said document was not available to him as the suit was filed much earlier i.e. on 9.9.2003. For the same, he could not have referred the same at the time of filing dissolution suit. He further contends that it is not correct that Respondent No. 1 refused to grant permission to place on record the document earlier. He referred to the statement of DW-3 wherein DW-3 referred the above document during her cross-examination which was objected on the ground that the same could not be referred during the cross-examination. The learned counsel submits that in view of the above objection, a proper application was filed before Respondent No. 1, on which the impugned order has been passed which is a valid and well reasoned order and should not be set aside.
I have heard the learned counsel for the parties and considered the provisions of Section 7 sub-section 3 (ii) of the Family Court Act which reads as under:--
"(ii) Where he relies (underline is mine) on any other document not in his possession or power, as evidence in support of his claim, he shall enter such documents in a list to be appended to the plaint (giving reasons of relevancy of these documents to the claim in the plaint).
The pivotal word is "relies". One can rely on a document, a paper or thing which exist. The document is dispute certainly did not exist even not conceived at the time of filing of dissolution suit by Respondent No. 2, therefore, how could she or her counsel rely on the same at that time? As mentioned above, the suit for dissolution was filed before the Family Judge, Rawalpindi on 9.9.2003, the decision in the criminal revision was given by the learned Sessions Judge, Sialkot on 29.5.2004. Therefore, in my humble opinion, Section 7 sub-section 3(ii) of Family Court Act is not attracted in the fats and circumstances of the present case pending before the learned Family Judge, Rawalpindi.
(H.A.) Petition dismissed
PLJ 2006 Lahore 39
[Multan Bench Multan]
Present: Sh. Hakim Ali, J.
Mst. MUSSARAT BIBI--Petitioner
versus
SHAH MUHAMMAD & another--Respondents
W.P. No. 3853 of 2004, decided on 8.12.2004.
West Pakistan Family Court Act, 1964 (XXXV of 1964)--
----S. 5--Jurisdiction of family Court--Suit for recovery of dower amounting to Rs. 500/- and two acres of land--Contention--Entries nikahnama forged and fictitious with regard to land family Court has no jurisdiction--Held: S. 5 granted exclusive jurisdiction to the Family Court to adjudicate upon the the cases provided in the schedule attached to family Court Act--Dower is one of the items shown in the schedule--Nature, quantum even the recovery of dower all question are to be considered to have been covered by S. 5 read with schedule of the Family Court Act--Impugned order illegal--Petition accepted. [P. 40] A
Mr. Muhammad Akbar Sajid, Advocate for Petitioner.
Ch. Ghulam Din Aslam, Advocate for Respondent No. 1.
Date of hearing : 8.12.2004.
Order
Mst. Mussarat Bibi, writ petitioner had filed a suit for recovery of dower amounting to Rs. 500/- and two acres of land allegedly gifted away by Shah Muhammad, respondent, the bridegroom, to her, the bride, in lieu of dower. In the plaint, Mst. Mussarat Bibi had claimed two acres of land to consist of her dower, while defendant Shah Muhammad, in para No. 4 of the preliminary objections of his written statement had denied the making of gift of two acres to Mst. Mussarat Bibi or delivery of its possession to her in lieu of dower. It was stated therein that the entries in Nikah nama were forged and fictitious, with regard to the above noted lands. The suit was decreed by the learned Judge Family Court on 27.1.2004 while appeal filed before learned Addl. District Judge, was accepted on 24.6.2004 and the suit relating to the claim of dower was dismissed by holding that the suit was not maintainable in the Family Court.
Petitioner's learned counsel submits that the land in dispute was granted in consideration of marriage as a dower, and it was well within the jurisdiction of the Family Court to determine the dower. He has referred to 1997 SCMR 1122 (Liaqat Ali vs. Addl. District Judge and two others).
Learned counsel appearing on behalf of respondent submits that only Rs. 500/- were fixed as dower and two acres of lands entered and shown in the Nikah nama as dower was never given to the petitioner. The entries contained in Nikah nama have been interpolated and inserted thereafter and the learned Judge Family Court had no jurisdiction to decide it.
After considering the arguments and from the perusal of the record, it has been found that the writ petitioner has claimed two acres of land in lieu of dower, whereas the version of the respondent is that no such land was given to the petitioner in lieu of dower and that the entries in the Nikah nama were forged and fictitious and the result of interpolation. The question arises as to which learned Court, Civil or Family has to determine the above noted disputatious question. Section 5 of the West Pakistan Family Court Act 1964 has granted exclusive jurisdiction to the learned Family Court to adjudicate upon the cases which are provided in the schedule attached to the Act. Dower is one of the subjects/items shown in that schedule. To determine as to how much the amount or property was given to the bride in lieu of dower, how much was settled to be paid, it was prompt or deferred and all these related questions are to be resolved by the learned Family Court, in other words the existence nature, quantum and even the recovery of the dower, all these polemical questions are to be considered to have been covered by Section 5 read with that schedule of the Family Courts Act 1964. So, relying upon the above noted decisions, it cannot be held that Family Court has got no jurisdiction to entertain or adjudicate the above mentioned controversial questions. The judgment and decree passed by learned Addl. District Judge, is, therefore, declared to be illegal and unlawful, and the case is remanded to learned Judge Family Court concerned, who shall grant the opportunity of hearing to both the parties, if need be felt, may frame fresh issues if the case requires, allow the parties to produce their evidence if they desire and then to decide the same strictly on merits and in accordance with law.
(H.A.) Petition allowed
PLJ 2006 Lahore 41
[Rawalpindi Bench Rawalpindi]
Present: Muhammad Muzammal Khan, J.
Mst. AYESHA BIBI--Appellant
versus
DISTRICT JUDGE--Respondent
W.P. No. 156 of 2005, decided on 7.2.2005.
(i) Guardian and Wards Act, 1890 (VIII of 1890)--
----S. 17(3)--Custody of minor--Minors option to select amongst their parents--Suit for custody of minors--Both petitioner and respondent re-married--Held: Through provisions of S. 17(3) of Guardian and Wards Act are directory in nature, yet in order to see whether some intelligent selection amongst their parents by the minors is in their welfare--Parents were summoned held--Petitioner's husband has no interest in proper bringing up of the minors and one of them being female of the age of 14 years, it is not safe for her to live with petitioner--Respondent No. 1 has no off shoot from the second marriage--He cannot be deprived of the custody of the minors--Petition dismissed. [P. 43] A
(ii) Principle of Law--
----Lawful decision--Held: A lawful decision taken by the Courts within ambit of their jurisdiction conferred by law, can neither be interfered nor can be substituted in Constitutional jurisdiction--Petition dismissed. [P. 43] B
Sh. Kamran Shahzad Siddiqui, Advocate for Petitioner.
Syed Muhammad Tariq Shah and Mirza M. Nizakat Baig, Advocates for Respondent No. 1.
Date of hearing 7.2.2005.
Order
Instant Constitutional petition seeks judgments/orders dated 8.6.2004 and 8.12.2004 passed by the learned Guardian Judge and learned District Judge, Attock, to be declared illegal, void and of no legal consequence, whereby custody of minor daughter and son of the parties were ordered to be handed over to Respondent No. 1.
Precisely, relevant facts are that Respondent No. 1 married with the petitioner on 20.11.1986 and cohabitation between the spouses gave birth to a daughter Mst. Naila Bibi and a son Farhat Abbas, who are at present about 15« and 13« years of ages respectively. Relations between the spouses did not remain cordial and ultimately ended in divorce on 19.10.1996 through Court on the basis of Khula. Since the minors were in custody of the petitioner, she leaving them with their old/ailing maternal grandmother, solemnized second marriage with one Zahoor Shah, not within the prohibited degrees of the minor Mst. Naila Bibi. On 15.10.2003 petitioner on behalf of her minor children filed a suit for recovery of their maintenance allowance which was ultimately decreed and the minors were awarded maintenance at the rate of Rs. 500/- per month per head with effect from 1st May, 2002 to October 2003 and at the rate of Rs. 650/- per month per head from November 2003 onward. Respondent No. 1 also filed an application under Section 25 of the Guardian and Wards Act, which was contested by the petitioner, but was accepted by the learned Guardian Judge, Attock on 8.6.2004.
Petitioner aggrieved of the decision of the learned Guardian Judge, filed an appeal before the learned District Judge, but remained unsuccessful as the same was dismissed on 8.12.2004. She has now filed instant Constitutional petition with the prayer, noted above. Respondent No. 1 in response to notice by this Court has appeared and is represented through counsel.
Learned counsel for the petitioner submitted that both the Courts below contrary to provisions of Section 17(3) of the Guardian and Wards Act neither summoned the minors nor took into consideration their intelligent selection amongst the parents for their future, thus the impugned judgments are not sustainable at law. It was also argued that it was in the welfare of the minors that they should have been allowed to remain in the custody of the petitioner, who being their mother, was in a better position to help their better brought up. Learned counsel for the petitioner further argued that the minors are living with their mother since their birth, whereas Respondent No. 1 has never cared to look after their welfare, hence deprivation of petitioner from the custody of the minors, would adversely affect the future of the minors.
Learned counsel appearing on behalf of Respondent No. 1 refuted the arguments of the petitioner, supported the concurrent judgments of the two Courts below and argued that petitioner after her second marriage has lost her right of custody under Muslim Law and that she has already given birth to two children from her second marriage, thus it would be against the welfare of the minors to allow them to remain with her. It was further submitted that the minors whose custody has concurrently been ordered to be handed over to Respondent No. 1 are living with their maternal grandmother at Hairpur who being an old/ailing lady is not in a position to look after their affairs because they have entered into very sensitive ages. Learned counsel for the respondent also urged that both the parties belong to a different sect, as Respondent No. 1 is Shia by faith and petitioner is a follower of Hanfi sect, hence the custody of the minors has to be given to the father to follow his religious faith. According to him, Respondent No. 1 though has also entered into a second marriage, but he has no off shoot from the second marriage and it is in the interest of the minors that their custody should be given to him as they will be in better position to nourish in a healthy atmosphere.
I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Besides the fact that both the learned Guardian Judge and the learned appellate Court have concurrently decided that custody of the minors be given to Respondent No. 1, the mother, petitioner having entered into a second tie of marriage with a person, not within the prohibited degrees of her daughter of the age of 14 years, is disqualified to have her custody. Both the minors have crossed the age of Hizzanat and the mother being disqualified, their custody is right of the father under Mahomedan Law. Though provisions of Section 17(3) of the Guardian and Wards Act are directory in nature, yet in order to see whether some intelligent selection amongst their parents by the minors is in their welfare, they were summoned. Both the minors elected to remain in custody of the petitioner and also admitted that they at one stage had been putting up with their maternal grandmother at Haripur. Since the minors are living with the petitioner at least from the date of divorce between the spouses, their choice of remaining with her is not surprising but their living with the petitioner is not in their welfare. Petitioner's husband has no interest in proper bringing up of the minors and one of them being a female of the age of 14 years, it is not safe for her to live with the petitioner. On the other hand, Respondent No. 1 who has a right to claim custody of his minor children, inspite of second marriage as he has no offshoot there from. It appears that a woman without any child would not give step motherly treatment to the children and that too while living with their real father. Respondent No. 1 might have acted in counterblast to the maintenance suit by seeking custody of the minors, but it being his vested right, he cannot be deprived of the same on imaginary grounds. The judgments relied by the learned counsel for the petitioner, proceed in peculiar facts and circumstances of the cases which were altogether different to the case in hand. Besides the reasons noted above, both the learned Guardian Judge and the learned District Judge, Attock have given reasons in support of their respective decisions and I am not persuaded to take a different view, to the one taken by them. Even otherwise, a lawful decision taken by the Courts within the ambit of their jurisdiction conferred by law, can neither be interfered nor can be substituted in constitutional of this Court.
For the reasons noted above, no illegality could be pointed out to have been committed by the Courts while passing the impugned orders which being not arbitrary/fanciful, are immune from indulgence by this Court. This constitutional petition accordingly having no merit in it, is dismissed with no order as to costs.
(H.A.) Petition dismissed
PLJ 2006 Lahore 44
Present: Ali Nawaz Chowhan, J.
Mian JAVID AMIR--Petitioner
versus
UNITED FOAM--Respondent
C.O.Nos. 3 of 2005, decided on 7.6.2005.
(i) Companies Ordinance, 1984 (XLVII of 1984)--
----Ss. 265 & 305--Petition for winding up company as well as for rectification of the register of share-holders--Validity--Serious accusations have been made against each other by the parties and there are questions involved which call for investigation as envisaged u/S. 265 of the Company Ordinance--S.L.C.P. asked by the High Court to act under the provisions of Section 265 by appointing a reputable Inspector to investigate into grievances of both sides and the return report suggesting whether a case under Section 305 was made out or whether this was merely a case u/S. 76 of the Companies Act--Inspector also asked to point out the acres where correction in the working of the company was required and whether that was possible--Petition disposed of in circumstances. [P. 51] A, C & D
(ii) Obiter Dictum--
----Public limited Companies are required to work within corporate morality and when accusations are made by the members of the company itself, it damages the image of the company and its actors and accusations are required to be enquired into and action taken in accordance with the spirit of the Company law. [P. 51 B
Mr. Uzair Karamat Bhindari, Advocate for Petitioner.
Mr. Shahid Waheed, Mian Nisar and Mr. Umar Alvi, Advocate for Respondent and Muhammad Younas, Asstt. Registrar.
Date of hearing : 3.6.2005.
Judgment
This is a petition under Section 305 read with Section 152 of the Companies Ordinance 1984 asking for winding up of the Company as well as for rectification of the register of share-holders. It was said that the Company was formed on the basis of the close relationship and long standing friendship between Petitioner No. 1 and Respondent No. 2 and this was in fact a business which flowed out of the cordial personal bond between these two major actors based on mutual faith and goodwill. But this confidence is being no longer reposed by either side for the reasons which have been given in the petition itself.
"26. That as detailed above, till 1999 Respondent No. 2 was only a shareholder in the Company and was not a Director therein. As such, he had no authority to act for the Company. However, Respondent No. 2 incorrectly and unlawfully manoeuvered to file a backdate Form A dated 31.12.1997 in' the office of Respondent No. 9, which purports to show that on 10.10.1997 Petitioner No. 1 transferred No. 10. Thus the said Form A purports to show that Petitioner No. 1 holds 245,000 shares instead of 470,000. The same (incorrect) information is given in the Forms "A" for subsequent year. Respondent No. 2 had thereby (unlawfully) attempted to show that the shareholding of the MJA Group had been reduced from 38% to 23%.
Copies of Form A dated 23.12.1997 and 31.12.2000 are attached herewith as Annexure J/1-J/2. Reference may also be made to the more recent Forms A, details of which are given below.
That Petitioner No. 1 has never transferred his shares to Respondent No. 2 or Respondent No. 10 nor has he executed any documents showing or effecting such a transfer. As such, the purported transfer is illegal, void ab initio, and totally ineffective against Petitioner No. 1. To the extent that Respondents Nos. 2 and 10 assert that there was such a transfer, they are put to strict proof thereof. It is pertinent that the said Form "A" does not even purport to show that Respondent No. 2 was a Director in the Company.
That the alleged transfer of shares dated 10.10.1997 reflected in the said Form A is bogus, spurious and unlawful to the knowledge of Respondent No. 2 and the KRS Group. This is, reflected in some of the correspondence by Respondent No. 2. For instance, in his letter dated 21.1.1999 (attached as Annexure E/1) he admits that the MJA Group owns 38% shares. Similarly, in his letter dated 1.2.2000, which purports to contain minutes of a board meeting dated 31.1.2000, Respondent No. 2 again states that Petitioner No. 1 represents 38% shareholding. This is without prejudice to the petitioner's contention that no such board meeting took place on the said date, and that this letter is one of many wherein Respondent No. 2 has unilaterally tried to fabricate minute of fictitious meetings. That is why the said letter was never signed by Petitioner No.1."
"30. That Respondent No. 2 filed two Forms A dated 31.12.2001 and 31.12.2002 with the office of the Respondent No. 9 recording that the authorized share capital of the Company is Rs. 40,000,000/- divided into 4,000,000 shares of Rs. 10 each. The alleged increase in the share capital is illegal, fictitious and unauthorized as the Company has not filed any Form III nor has it followed the other requirements laid down in the Ordinance, as for instance in Section 92 of the Ordinance. Furthermore, it is clear that in violation of Section 86 of the Ordinance, the (so called) further shares were neither offered nor issued to all the existing shareholders in proportion to their existing shareholders. The KRS Group is put to strict proof that any such increase in the share capital of the Company was lawfully effected."
"31. That the foregoing is significant as the Petitioner' entitlement to the increased share capital has been worked out on the basis of 23% shareholding rather than 38%. This illegality has been committed to assume total control over the affairs of the Company, to give some credibility to other forged documents which have been illegally filed by Respondent No. 2 and to compound the effect of the unlawful (purported) reduction in the shareholding of Petitioner No.1."
"34. That resultantly, one of the fundamental motives for establishing the Company was in danger of being frustrated. Petitioner No. 1 had devoted a lifetime to the Company exclusively in the hope that his future generations will reap the reward of his labours. He had no other business nor any other source of livelihood. However, it was obvious that he and his children had no future in the Company. Coming at the heels of the purported reduction in the shareholding of Petitioner No. 1, the attempt by Respondent No. 2 to exclude Petitioner No. 3 from active management and his steadfast refusal to allow any other member of the MJA Group onto the board made it clear that the KRS Group was going all out to oust Petitioner No. 1 and his family from the management and membership of Company."
"39. That things were quiet for a couple of months after the petitioners left the management of the Company. However, the petitioners were shocked to learn that Respondent No. 2, alongwith the Company, had filed a civil suit against them and Joy Foam, alleging (totally incorrectly) that Joy Foam was a subsidiary of the Company, having been set up with the latter's funds. Having orchestrated the ouster of the MJA Group from the management of the Company, the KRS Group was now funning for their investment in Joy Foam also."
"40. That while the concerned petitioners are preparing to defend the said civil suit, and will file a written statement in due course, they are, for the purposes of the present proceedings particularly aggrieved of the manner in which the record of the Company has been manipulated and fabricated in an attempt to provide succour to the said suit. The KRS Group has prepared bogus records of shareholders' and directors' meetings and resolutions in order to further their plans. In particular, the petitioner refer to the alleged resolution dated 27.1.2001 whereby (allegedly) the Company resolved to set up a subsidiary company, and the alleged resolution dated 26.12.2003 (mentioned in the letter dated 27.12.2003 attached herewith as Annexure P/1) passed at an extraordinary shareholders' meeting. The petitioners categorically state that no meetings as alleged were held on the said dates, nor were these resolutions ever passed. The KRS Group is put to strict proof of these facts."
"46. That the petitioners received notices dated 9.10.2004 informing them that an AGM of the Company will be held on 30.10.2004. Along with the notices, the petitioners received accounts of the Company for the financial year 2004, which were to be put up for approval at the said AGM."
"47. That much to the petitioners' surprise, the said accounts revealed that the during their preparation, accounts for the financial year 2002--2003 had been revised. This was totally inexplicable as the accounts for the financial year 2002 to 2003, prepared by Respondent No. 7, had been signed and submitted by Respondents Nos. 4 and 5, and no basis or justification for the said revision had ever been put forward. Significantly, the accounts for the financial year 2003 - 2004 showed that the Company had run up losses of Rs. 101, 325,867/- even though the accounts for the financial year 2002 to 2003, signed and submitted by the KRS Group themselves, showed that the Company had earned a profit of Rs. 2,823,964/-. Indeed, the Company had declared profits for the years preceding 2003."
"48. That it hardly needs to be emphasized that the said accounts for the financial year 2003 - 2004 were bogus, fictitious and had been fabricated simply in order to avoid payment of any dividends to the petitioners and to caste a negative light on the time the MJA Group was involved in the management of the Company."
Therefore, the following prayer was made:--
"In the light of the foregoing, it is most respectfully submitted that this Honourable Court may be pleased to:--
(i) declare that the attempted reduction in the shareholding of Petitioner No. 1 by means of the purported transfer of his shares to other respondents is illegal and of no legal effect;
(ii) declare the attempted increase in the share capital of the Company from Rs. 15,000,000/- to Rs. 40,000,000/- to be illegal and of no legal effect;
(iii) declare the allotment and issuance of shares based on the attempted increase in share capital to be illegal and of no legal effect;
(iv) declare that prior to the attempted reduction in his shareholding and the attempted increase in the share capital of the Company, Petitioner No. 1 held 470,000 instead of 245,000 shares and that the petitioners collectively held 38% of the shares in the Company, instead of 23%, and continue to do so;
(v) direct the Company and the KRS Group to rectify the register of shareholders of the Company to reflect that prior to the attempted reduction in his shareholding and the attempted increase in the share capital of the Company Petitioner No. 1 held 470,000/- instead of 245,000 shares and that the petitioners collectively held 38% of the shares in the Company instead of 23%, and continue to do so, and direct respondent No. 9 to rectify its records accordingly;
(vi) order that the Company be wound up;
(vii) order that upon liquidation, and after paying the creditors, the assets of the Company be distributed amongst the shareholders on the basis that the petitioners hold 38% of the shares in the Company;
(viii) Order the KRS Group to pay costs of the case to the petitioners;
(ix) Grant such other relief as may be deemed just and proper on the facts of the case."
The respondent's side in its written statement has taken a number of objections. It was said that the petition was not maintainable because a necessary party, to whom the petitioner had transferred his shares i.e. M/s. Sheikh Combined Industries Pvt. Ltd., has not been made a party. But subsequently the said Company was represented by Mian Nisar Ahmad, Senior Advocate on their behalf. It was also the case of the respondents that the Company was making profit and no good grounds were made for its winding up even if the petitioner had to make the allegation against oppressive management.
Counter allegations were hurled against the petitioner in paragraph 6,8,13,19,20 of the written statement. It was said:--
"(6) That the petitioners by abusing the process of this Honourable Court want to take benefit of their some of the following misdeeds:--
(i) Making up money of over Rs. 1000 millions by indulging in fraud, forgery and embezzlement through:--
(a) cloth purchase and short supplies, (b) payment to fictitious names without support of purchase.
(c) Sale of drums, (d) Kick-backes, (e) Payment to M/s. Joy Foam Industries (Pvt.) Ltd., against their capital.
(f) Embezzlement in creating and declaring bad debts and writing them off without resolution and authority of Board of Director.
(ii) Damages of over 2,000 million which the petitioners caused to the company by their wilful default and various wrong decisions.
(iii) Illegal Commissions."
"(8) That it is an established principle of law that Companies, as far as possible, should be left to self-Government and self-determination through the wishes of majority of shareholders. It would not be equity, if the petition is allowed contrary to the wishes of majority, as in such situation the petitioners would get following illegal benefits:--
(a) That cases of fraud and forgery and embezzlements over rupees one hundred crores would be sabotaged.
(b) The damages due to wilful defaults and wilful wrong decisions during his tenure as Chief Executive of over rupees two hundred crores would end up.
(c) Case of United Foam filed against Joy Foam would be automatically finished, (d) Above all simultaneously shares have been sold to save themselves from Balance Sheet of 30.6.2004, which confirms their share-holding negative by rupees two crore forty lacs only. Copy Annex: R/8.
(e) Petitioners' new company M/s Joy Foam Industries (Pvt.) Ltd., would flourish at the cost of United Foam Industries (Pvt.) Ltd."
"(13) The petitioners also have no locus standi to file the instant petition either under Section 152 or under Section 305 of the Companies Ordinance, as before the filing of the petition they on 24.12.2004 have sold all their shares in United Foam Industries (Pvt.) Ltd. It is pertinent to mention here that the petitioners firstly offered to sell their equity in United Foam (Pvt.) Ltd. to Respondents Nos. 2 to 6 and upon the refusal of the said respondents to purchase the shares of the petitioners, they entered into an agreement with M/s. Shaikh Combined Industries (Pvt.) Ltd. for the sale of their entire holding to the latter. Copies of the letters exchanged between the petitioners and Respondents Nos. 2 to 6 containing the offer of the petitioners for sale of shares and refusal of the respondents. Copy of Agreement dated 24.12.2004, between the petitioners and M/s. Shaikh Combined Industries (Pvt.) Ltd. for the sale of shares of the petitioners are annexed as Annex: R/9. It is worth mentioning here that the Board of Directors of Respondent No. 1 has also approved this transaction of transfer of shares and the name of M/s. Shaikh Combined Industries (Pvt.) Ltd. has already been entered in the register of members."
"(19) That the jurisdiction of this Honourable Court under Section 152 of the Companies Ordinance, 1984 is also not available to the petitioners as the instant controversy requires settlement through evidence. The summary procedure provided under Section 152 of the Companies Ordinance, 1984 cannot be invoked by the petitioners for the settlement of such complicated questions of fact without a regular trial."
"(20) That it has been clearly laid down in a long line of rulings of the Superior Courts that although powers of the High Court to rectify Register of Members is very wide, yet the jurisdiction of High Court being summary, is not to be invoked for the resolution of disputes of complicated nature necessitating regular trial - parties in such situations would be required to have the controversy resolved through a regular suit under the C.P.C. It is obvious from the contents of the titled petition itself that the questions of fact involved therein cannot be answered within the confines of the summary procedure provided in Section 152 of the Companies Ordinance, 1984. The petitioners have deliberately avoided taking their dispute, if any, to the Civil Courts for regular trial, with the sole object of coercing the respondents and of preventing them from pressing the corporate rights of Respondent No. 1 Company in the equity of M/s. Joy Foam (Pvt.) Ltd. The petitioners are thus trying to abuse the process of law to the detriment of the respondents. They have not come to the Court with clean hands and are not entitled to any relief."
On the other side, it was said that there has not been any sale of shares and if at all there was any sale, it was based on the fraudulent act of the respondents' side. The learned counsel for the petitioner went on to say that as he is in possession of the scripts of the shares, those provide enough evidentiary proof for the Company to rectify the register of the share-holders or to refrain from omitting the name of the petitioner from the register of the share-holders.
The parties have placed material on record in support of their accusations. The consensus is that these accusations call for a detailed inquiry which may also require production of evidence and which is not possible under the summary procedure of this Court.
Since serious accusations have been made against each other by the parties and there are questions involved inter-alia to the effect whether the petitioner did sell their shares or was withholding the same cleverly and whether the rectification of the register of share-holders had been effected bonafidely or malafidely and whether the affairs of the Company can be conducted in the future smoothly. These do call for investigation as envisaged under Section 265 of the Companies Ordinance, 1984.
Public limited companies are required to work within a corporate morality and when such like accusations are made by the members of the company itself, it damages the image of the company and its actors and accusations are required to be enquired into and action taken in accordance with the spirit of the Company Law.
This Court, therefore, would ask the S.E.C.P. to act under the provisions of Section 265 by appointing a reputable Inspector to investigate into the grievances raised by both sides and to return its report to this Court thereafter while also suggesting whether a case under Section 305 was, under the circumstances, made out or whether this was merely a case covered under Section 76 of the Companies Act. The Inspector will also point out the areas where correction in the working of the company was required and also point out whether that was possible.
As the matter has been referred under Section 265 of the Companies Ordinance 1984 to the S.E.C.P. this C.O. as far as this Court is concerned, is being disposed of. The matter shall be re-agitated by the parties after the report of the S.E.C.P. was available and favourable to the petitioner and not otherwise. Because, otherwise, it will be presumed that no case has been made out for rectification or for winding up and the matter will end there while only requiring the placement of the report of the Inspector on the file. The S.E.C.P. will appoint a reputable Inspector within 14 days from today and the Inspector will be giving his report within the next 2 months without fail.
(R.A.) Petition disposed of
PLJ 2006 Lahore 52
Present: Tanvir Bashir Ansari, J.
MUHAMMAD AKRAM through SPECIAL POWER OF ATTORNEY, TEHSIL DESKA, DISTRICT SIALKOT--Petitioner
versus
Mst. BUSHRA BEGUM & 3 others--Respondents
W.P. No. 10695 of 2003, decided on 9.2.2005.
West Pakistan Family Courts Act, 1964 (XXV of 1964)--
----S. 13(2)--Constitution of Pakistan, 1973, Art. 199--Execution of decree for amount as alternate value of the dowry articles--Contention of--Family Court has not possessed a decree for any amount--The entitlement to receive the alternate value of the dowery articles can only be enforced if the articles of dowry are not returned--Petitioner himself denied to be in possession of the dowry articles in his written statement, it was incombent upon the executing Court to straight away execute the decree for money as alternatively decree by the judge Family Court--Petition dismissed. [P. 54] A
Ch. Khan Muhammad Bajwa, Advocate for Petitioner.
Mr. Tasawar Hussain Qureshi, Advocate for Respondent No. 1.
Date of hearing : 9.2.2005.
Order
The brief facts are that Respondent No. 1 filed a suit for recovery of dowry articles or in the alternative a sum of Rs. 3,63,900/- as the cost of the dowry articles. The petitioner contested the suit. In para 3 of the written statement it was specifically averred that plaintiff/Respondent No. 1 had taken away all the dowry articles and that the petitioner/defendant was not in possession of any item of dowry.
The learned Judge Family Court framed the necessary issues. Upon the strength of evidence produced by Respondent No. 1 in the shape of statements of PW.1 plaintiff as her own witness and PW.2 alongwith the list of dowry articles Ex. P.1, the learned Judge Family Court decreed the suit in favour of Respondent No. 1 and against the petitioner with cost vide judgment and decree dated 21.3.2000.
In pursuance of the said decree Respondent No. 1 filed execution proceeding on 25.5.2005. The petitioner resisted the execution proceedings. It was contended that the Family Court has not passed a decree for any amount; it was submitted that the entitlement to receive the alternative value of the dowry articles can only be enforced if the articles of dowry are not returned. According to the petitioner, the decree was to be executed under Section 13(2) of the West Pakistan Family Courts Act, 1964 and not under the Provisions of CPC. On 30.4.2003 the petitioner offered to produce the decreed dowry articles in Court in the satisfaction of the decree. On 9.5.2003 the petitioner produced some dowry articles but the counsel for decree holder as well as the decree holder herself objected that articles produced by the petitioner were not articles of dowry which were mentioned in Ex. P.1. It was urged by the decree holder that in such a situation the decree holder is entitled to the value of dowry articles as claimed in the plaint and as decreed. On 28.5.03 the decree holder took an Oath on the Holy Quran stating that the articles shown to her on 9.5.2003 were not the articles which were given to her as dowry. Upon this statement the learned counsel for the petitioner asserted that whether or not the dowry articles produced by him were the same as given to Respondent No. 1 calls for recording of evidence of the parties. The learned Executing Court rejected the plea of the petitioner and ordered the auction of the attached property to satisfy the decree of the Judge Family Court. The Court Auctioner was also appointed. This order was challenged by the petitioner in revision which was dismissed by a learned Addl. District Judge Daska vide order dated 18.7.2003.
These orders viz 28.5.2003 passed by the Executing Court and the order dated 18.7.2003 passed on revision are challenged through the present writ petition.
It is contended by the learned counsel for the petitioner that under the Family Courts Act only dowry articles can be restored by the Family Court and if the claim to the value thereof the appropriate forum would that be of the Civil Court. It is further submitted that the order of the attachment and auction of immovable property of the petitioner in satisfaction of a decree for dowry was unwarranted at law. To support his contention the learned counsel placed reliance upon Mst. Mehbooba vs. Abdul Jalil 1996 SCMR 1063 and Mst. Nasreen vs. Government of Sindh PLD 1989 Karachi 28 in support of this contention. Further relies on AIR 1959 Mysore 164 to contend that giving of an alternate remedy did not give the decree holder an option of refusing to take the delivery of the property and of insisting upon the payment of money.
On the other hand, the learned counsel for the respondent submits that question of delivery of dowry articles during the execution proceedings was an after thought as it was the case of the petitioner/ defendant right from his written statement that the Plaintiff/Respondent No. 1 has herself removed all the dowry articles and that he was not in possession of any items of dowry. It is contended that the decree that was passed by the Judge Family Court had direct nexus with the prayer made by the Plaintiff/Respondent No. 1 in her plaint. Although the decree was in respect of dowry articles but as the said dowry articles as mentioned in Ex. P. 1 were admittedly not in possession of the petitioner, Respondent No. 1 could validly and lawfully insist upon the alternative decree for value of the same. The learned counsel for the respondent has placed reliance upon Muhammad Akram vs. Mst. Shahida Parveen PLD 2004 Lahore 249 in support of his contention.
Arguments have been heard and record perused.
There is no force in the submission made by the learned counsel for the petitioner that it is only the dowry articles which can be recovered by a decree holder and not its value as decreed. The reliance upon the case of Mst. Mehbooba Supra is not apt. Infact the dictum of the Hon'ble Supreme Court in the cited case affirms the proposition that a decree holder can insist upon the value of the dowry articles if the dowry articles themselves cannot be restored. The reliance upon AIR 1959 Mysore 164 shall not advance the case of the petitioner. The pre-condition for obliging the decree holder to seek the recovery of the moveable property itself and not its value is that moveable property should be available to be restored to the decree holder.
In the present case it is admitted on the record that the original dowry articles were not in possession of the judgment debtor and that his attempt to replace the same would amount to re-opening the case as the question regarding the quality and condition of the replaced dowry articles would always be open to question. It is in these circumstances, that where the petitioner had himself denied to be in possession of the dowry articles in his written statement, it was incumbent upon the executing Court to straight away execute the decree for money as alternatively decreed by the Judge Family Court. The reliance placed upon the case of Muhammad Akram PLD 2004 Lahore 249 Supra by the learned counsel for Respondent No. 1 is appropriate and also applies to the circumstances of the instant case.
In view of the fore-going there is no force in the writ petition which is hereby dismissed.
(H.A.) Petition dismissed
PLJ 2006 Lahore 55
Present: Ch. Ijaz Ahmad, J.
DILSHAD AHMAD KHAN--Petitioner
versus
Mst. SAFIA BEGUM and another--Respondents
C.R. No. 1507 of 2000, heard on 19.5.2004.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Exercise of--Empowers of High Court to satisfy itself upon the facts that the order of trial Court is within its jurisdiction, case is suitable for exercise of jurisdiction and any illegality in exercise jurisdiction i.e. breach of some provision of law or any material irregularity or material error or procedure in the caurse of trial, which may effect ultimate decision--If High Court is satisfied upon these matters, it has no power to interfere because it differs, however profoundly from the conclusion of the subordinate Court upon question of fact or law--Director General FDA was directed to constitute a committee to probe into the matter, complete the process within three months and submit the report to the Deputy Registrar of the Court--Petition disposed of. [Pp. 59 & 60] A & B
1995 MLD 480; 1999 MLD 198; 1997 CLJ 459; PLD 1973 SC 236; 1983 SCMR 196; PLD 1974 SC 322; PLD 1949 P.C. 26; NLR 1985 Civil 114; 2003 SCMR 1140 & 2002 SCMR 1120.
Mr. Talib H. Rizvi, Advocate for Petitioner.
Hafiz Muhammad Yousaf, Advocate for Respondents.
Date of hearing : 19.5.2004.
Judgment
I intend to decide Civil Revision No. 1507/2000 and Constitutional Petition No. 2322/2001 by one consolidated judgment having similar facts and law and both the Civil Revision and Constitutional Petition are dependent upon each other.
The brief facts out of which the aforesaid revision petition arises are that Plot No. 2-W-9 which is situated at Madina Town (Chak No. 213 RB) Faisalabad was allotted by Respondent No. 2 to Respondent No. 1. An agreement was also executed between Respondent No. 1 and Respondent No. 2 on 21.5.1980. The plot in question is measuring 8-Marlas 249 Sq. ft. Possession of the plot in-question has been allegedly handed over to Respondent No. 1 by Respondent No. 2. Respondent No. 1 has made certain construction over the plot in-question. Respondent No. 2 also allotted Plot No. 4-W-9 which is also situated in Madina Town, (Chak No. 213 RB) Faisalabad to the present petitioner-defendant in the suit. Respondent No. 1 has allegedly encroached the area of the plot of the petitioner. The petitioner has made complaint to Respondent No. 2. Respondent No. 2 has initiated proceedings against Respondent No. 1 to demolish the construction over the excess area, allegedly taken possession by Respondent No. 1 without any justification. Respondent No. 1 being aggrieved filed a suit for declaration with consequential relief, in the Court of Civil Judge Faisalabad. The contents of the plaint reveals that Respondent No. 1/plaintiff alleged that the disputed plot was allotted to her and the sale agreement was duly executed by Respondent No. 2/Defendant No. 2 in favour of Respondent No. 1/plaintiff on 28.5.1980. She raised construction over it and also got erected the boundary wall. The contents of the plaint further reveal that the area of the plot in-question is measuring 8-Marlas 249 sq. ft. At 1.00 p.m. Respondent No. 2/Defendant No. 2 alongwith official of Respondent No. 2 came to the plot of Respondent No. 1/plaintiff and started demolishing the Eastern wall. Respondents/defendants filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed the following issues:--
Whether this Court has got no jurisdiction to try the suit? OPD
Whether the plaintiff has not come to the Court with clean hands. If so, with what effect? OPD
Whether the plaintiff was allotted the disputed plot measuring 8 Marlas 249 sq. ft? OPP
Whether the defendants are entitled to special cost. If so, to what extent? OPD
Relief.
The learned trial Court decreed the suit of Respondent No. 1/plaintiff vide judgment and decree dated 30.3.1989. The petitioner being aggrieved filed appeal before the Addl. District Judge, Faisalabad, who dismissed the same vide impugned judgment and decree dated 15.3.2000, hence, the present revision petition.
The learned counsel of the petitioner submits that P.W. 1 Muhammad Tariq Record Keeper of the F.D.A. admitted in cross-examination that Plot No. 2-W-9 measuring 7 marlas 244 feet was allotted to the Respondent No. 1/plaintiff. P.W.1 further admitted in cross-examination that F.D.A. had given plot more than entitlement to Respondent No. 1/plaintiff. The learned counsel of the petitioner further submits that both the Courts below misconstrued the evidence of P.W.1, therefore, judgments of both the Courts below are result of mis-reading and non-reading of the evidence on record. He further submits that F.D.A. in its written statement has specifically taken a stand that plot was allotted to Respondent No.1/plaintiff measuring 7 marlas 244 Sq. Ft. and the possession of the plot was handed over to that extent to Respondent No. 1/plaintiff and site plan was also sanctioned in favour of Respondent No. 1/plaintiff according to the measurement of the plot measuring 7-Marlas 244 Sq. Ft. He further submits that according to the scheme of F.D.A. Respondent No. 2 the plot could not be allotted to any person more than measuring 5 marlas. The category of the plots is reserved according to the Master Plan 5-marlas plot each, therefore, Respondent No. 1 has taken possession more than her entitlement without any justification. He further submits that both the Courts below misconstrued the evidence on record and did not advert to the evidence of D.W.1 Zawar Hussain and D.W.2 Muhammad Aslam Record Keeper.
The learned counsel of Respondent No. 2 also supported the case of the petitioner and submits that both the Courts below have decided the case in favour of Respondent No. 1/plaintiff by mis-reading and non-reading the evidence on record. He further submits that Respondent No. 1 has not placed on record any order of the competent authority to allotment of the plot measuring 8-Marlas 249 Sq. Ft. Learned counsel of the petitioner further submits that petitioner has filed an application for additional evidence, which was dismissed by the First Appellate Court without any justification.
The learned counsel of Respondent No. 1 submits that both the Courts below have given concurrent findings of fact against the petitioner and Respondent No. 2 and the learned counsel of the petitioner failed to point out any piece of evidence, which was misread or non-read by the Courts below. He further submits that this Court has very limited jurisdiction to interfere in the concurrent findings of fact and the petitioner failed to bring the case within the parameter prescribed by the superior Courts to interfere in the findings of fact recorded by the Courts below after proper appreciation of evidence. In support of his contentions, he relied upon the following judgments:--
Water and Power Development Authority vs. Mian Ghulam Bari (1995 MLD 480).
Rao Sakhawat Ali vs. Mst. Zahooran Begum (1999 MLD 198).
Muhammad Hussain vs. Umer Shah etc. (1997 C.L.J. 459).
He further submits that petitioner has not challenged the order of dismissing the application of the petitioner for producing additional evidence at the relevant time and also did not take a single ground in the grounds of the revision petition before this Court, therefore, petitioner's counsel is not entitled to raise new plea, which was not taken by the petitioner in the grounds of the revision petition. He further submits that petitioner Dilshad filed Constitutional Petition No. 21964-2000 before this Court without impleading Respondent No. 1 as respondent in the Constitutional petition to secure a direction from this Court on 31.10.2002 to the extent that Respondent/F.D.A. be directed to decide the application of the petitioner Dilshad. The petitioner being aggrieved filed this Constitutional petition that both the Courts below have decided the case in favour of the petitioner/plaintiff and against the Respondents/F.D.A., therefore, the respondent/F.D.A. be restrained to take any action against the petitioner Mst. Saifa Begum, on the application filed by Dilshad before the F.D.A.
The learned counsel of respondent-Dilshad submits that F.D.A. is duty bound to decide the application in accordance with law and the respondent-Dilshad is satisfied if direction is issued to the F.D.A. authorities to demarcate both the plots of the petitioner and respondent-Dilshad in accordance with the allotment letter issued by the F.D.A. in their favour and Dilshad shall not press his revision petition. The learned counsel of F.D.A. submits that action of the Respondent-F.D.A. is in accordance with law, therefore, Constitutional petition be dismissed.
The learned counsel of the petitioner/plaintiff, in rebuttal, submits that F.D.A. authority has no lawful authority to nullify the effect of the judgments of the courts below when the matter has been finally decided by the competent Court in the Judicial side.
I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
It is admitted fact that respondent Dilshad has filed Constitutional Petition No. 21964-2000 without impleading the Respondent No. 1-plaintiff (Mst. Saifa Begum) as respondent in the writ petition; therefore, respondent Dilshad secured the order from this Court by concealing material facts. In this view of the matter, this Constitutional petition is accepted and the order passed in the Constitutional petition of Dilshad is recalled on the ground that Dilshad has secured the order by playing fraud, by misrepresentation by not impleading the respondent-plaintiff as respondent in the Constitutional petition as the law laid down by the Honourable Supreme Court in the following judgments:--
"Nawab Syed Raunaq Ali vs. Chief Settlement Committee" (PLD 1973 S.C. 236).
"Principal, K.E.M. College vs. Ghulam Mustafa etc." (1983 S.C.M.R. 196).
It is admitted fact that F.D.A. has not filed any appeal against the Judgment & decree of the Trial Court and also did not file any revision petition before this Court. Coupled with the fact that petitioner has not produced any evidence and the petitioner has filed application for producing additional evidence before the First Appellate Court, which was rejected by the First Appellate Court as is evident from para 7 of the impugned judgment of the First Appellate Court and petitioner has not taken a single ground in the grounds of the revision petition before this Court qua this fact/decision. It is settled principle of law that parties are bound by their pleadings as the law laid down by the Honourable Supreme Court in Mst. Murad Begum vs. Muhammad Rafique (PLD 1974 S.C. 322). It is admitted fact that both the Courts below have given concurrent findings of the facts against the petitioner and this Court has very limited jurisdiction to disturb the concurrent findings of the Courts below while exercising power under Section 115 of CPC. The Privy Council has also laid down parameters to interfere in the findings of the Courts below while exercising power under Section 115 of CPC in "N.S. Vankatagiri Ayyangar and another vs. The Hindu Religious Endowments Board Madrass" (PLD 1949 P.C. 26). The relevant observation is as follows:--
"This is section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with maternal irregularity, that is, by committing some error or procedure in the course of the trial which is material in that if may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interefere because it differs, however profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
The judgment of the Privy Council is followed by this Court in "Board of Intermediate & Secondary Education, Lahore vs. Syed Khalid Mehmood." (NLR 1985 Civil 114). It is pertinent to mention here that the judgment of this Court is upheld by the Honourable Supreme Court. The learned counsel of the petitioner failed to bring the case within the parameter prescribed by Privy Council in the aforesaid judgment, therefore, revision petition has no merits. It is pertinent to mention here that petitioner has not produced any evidence before the Courts below. Respondent No. 1/plaintiff has produced following witnesses before the trial Court:--
(i) P.W. 1 Muhammad Tariq Record Keeper F.D.A.
(ii) P.W. 2 Zawar Hussain Shah Account Clerk
F.D.A. has produced the following witnesses before the trial Court:--
(i) D.W. 1 Jawad Hussain, Building Inspector, (ii) D.W. 2 Muhammad Aslam Record Keeper, In case the evidence of all the aforesaid officials are put in juxta position then they are contradicting each other. In this view of the matter, the Director General F.D.A. is directed to constitute a committee to probe into the matter and fix responsibility, who is responsible officer-official to create trouble to the citizens coupled with the fact that according to the written statement of F.D.A. agreement was executed between Respondent No. 1 and Respondent No. 2 on 28.5.1980 according to which the measuring of the plot allegedly is not in accordance with the prescribed scheme of the F.D.A. and is not in accordance with the statement of the aforesaid official witnesses, who are contradicting each other. He is directed to constitute a committee to probe into the matter qua the conduct of the responsible official-officer. In case the committee finds any of them is responsible then he is directed to proceed against that officer-official under Efficiency and Discipline Rules. In case the committee finds any of them is responsible for any mischief then the petitioner Dilshad would be compensated by the F.D.A. authorities and the amount, which would be paid by the F.D.A. authorities to the petitioner Dilshad, would be recovered from The responsible officer-official of F.D.A. as the law laid down in the following judgments:--
Sami Ullah Khan Marwat's case (2003 SCMR 1140).
Syed Yaqoob Shah's case (2002 SCMR 1120).
He is directed to complete this process within three months. He is further directed to submit his report to the Deputy Registrar (Judicial) of this Court within the stipulated period. The learned legal advisor of the F.D.A. is directed to notify the order to the Director General, F.D.A. for necessary action and compliance. Office is directed to provide one copy of this judgment to Mr. Muhammad Hanif Khatana, Addl. Advocate General, who is directed to transmit the same to the Director General F.D.A. for necessary action and compliance.
With these observations the revision petition and the writ petition are disposed of.
(R.A.) Petition disposed of
PLJ 2006 Lahore 60 (DB)
[Rawalpindi Bench Rawalpindi]
Present: Tanvir Bashir Ansari and Abdul Shakoor Paracha, JJ.
MUKHTAR AHMED and others--Petitioners
versus
NATIONAL ACCOUNTABILITY BUREAU through its CHAIRMAN RAWALPINDI and others--Respondents
W.P. Nos. 2660 of 2003, 216 of 2004 and 2533 of 2003, decided on 22.6.2004.
(i) Bail
----Further Inquiry--Held: All this clear indicates that this is a case of further inquiry which cannot be decided one way or the other without recording the detailed evidence by the prosecution. [P. 64] B
(ii) Rule of Court--
----Award--Rule of the Court--It is not denied that after making the award the same was submitted to the Court of competent civil jurisdiction--It is also not disputed that initially objection were filed to the award--However, it was communicated by the approver to the Law Division that N.T.B was satisfied with the Arbitrator Award--Consequently a representative of the Govt. appeared before the civil Court at objection having not been pressed the Civil Court made the award as the Rule of the Court--Held: It is tribe law that without the mechanism of the Arbitration Act 1940, no Arbitration Award remains in effective till made Rule of the Court and a decree is passed accordingly. [P. 64] A
Mr. Malik Rab Nawaz Noon, Dr. Babar Awan, Advocates for Petitioners.
Sardar Asmat Ullah Khan, Advocate Addl. Deputy Prosecutor General NAB for Respondents.
Date of hearing : 26.4.2004.
Judgment
Tanvir Bashir Ansari, J.--This common judgment shall decide W.P. No. 2660/03, W.P. No. 216/2004 and W.P. No. 2533/03 which have been filed in NAB Reference No. 86/2003 titled The State vs. Sher Akbar and 5 others. The said Reference is pending before the Accountability Court No. 4 Rawalpindi/Islamabad.
(i) Sher Akbar son of Muhammad Akbar Ex-D.G. National Training Bureau Islamabad.
(ii) Syed Safdar Hussain Kazmi Secretary (RTD) Ministry of Labour & Manpower Islamabad.
(iii) Saleem Maqsood Ex-Joint Secretary Ministry of Labour & Manpower Islamabad.
(iv) Mukhtar Ahmad Ex-Financial Advisor Ministry of Labour and Manpower Islamabad.
(v) Muhammad Hussain Shah Deputy Secretary (Rtd.) Ministry of Labour and Manpower Islamabad.
(vi) Syed Anwar Shah Proprietor, Tahmoor Construction Company Quetta.
(i) that Muhammad Hussain Shah the then Deputy Secretary Ministry of Labour and Manpower in connivance with Sher Akbar D.G.N.T.B dishonestly awarded the contract of V.T.C. Dera Murad Jamali to M/S Thamoor Construction Company of Syed Anwar Shah accused at a composite rate of rupees 536. sq.ft. which was on higher than the rates of other sites of the same scheme. It is alleged that the completion cost of rupees 24.92 million was contemplated as against the estimated cost of rupees 9.3. million.
(ii) that Syed Anwar Shah moved Sher Akbar D.G N.T.B for appointment of an arbitrator for settlement of his escalation claim whereupon Muhammad Hussain Shah was appointed as the sole arbitrator. It is further alleged that Muhammad Hussain Shah in collusion with accused Sher Akbar and Asad-Bin-Zafar Approver delivered an award of rupees 6.48 million which, after having been made as the rule of the Court was paid to Syed Anwar Shah.
The allegations against Mukhtar Ahmed Ex-Financial Advisor alongwith Sher Akbar D.G. NTB and petitioner Saleem Maqsood Joint Secretary were the Members of Escalation Committee and had dishonestly and in violation of the directive of the Minister of State, recommended the payment of rupees. 7.81 million as Escalation Cost to accused Syed Anwar Shah.
The allegations against the third petition namely Saleem Maqsood Joint Secretary Ministry of Labour & Manpower are that he was the Chairman Escalation Committee who alongwith the accused Sher Akbar D.G. and accused Mukhtar Ahmad Financial Advisor dishonestly recommended the payment of rupees 7.81 million as Escalation costs to accused Syed Anwar Shah.
Dr. Babar Awan, Advocate for Muhammad Hussain Shah petitioner contends that there is nothing on the record to establish any mens rea qua the petitioner as far as the allegation of the initial award of the contract is concerned. It is submitted that the tenders for construction of V.T.C. Dera Murad Jamali were opened on 29.12.88. The acceptance of tender and award of work was made on 2.1.1990 but the same does not show any complicity of the petitioners. Further there is no direct evidence against the petitioner that he was instrumental in the approval of the contract as according to letter dated 27.5.89 the award of the said contract was considered at various levels including the approval of the Chairman ECUEC. It is submitted that so many different senior officials had considered the award of the contract that it is not reasonable to infer that each and every officer had colluded to deliberately grant illegal benefit to a Contractor.
Regarding the allegations that Muhammad Hussain Shah petitioner was appointed a sole Arbitrator who also submitted his award whereby the Escalation charges were allowed to the Contractor, it is contended that firstly, the proceedings of Arbitrator are subject to and governed by the Provisions of the Arbitrator Act, 1940. The Arbitrator proceedings were detailed and long drawn out proceedings, wherein, the government had been fully represented through its representatives. The petitioner had fulfilled all the requirements of law and recorded copious evidence and then submitted his award to the Court of competent jurisdiction. Objection were filed against the said award. The award would be a dead letter had it not been reduced into a rule of the Court and a decree was passed in accordance with award. It is further submitted that even as per the statement of the Approver, it was this approver who had communicated to the Ministry of Law that N.T.B. was satisfied with the award.
On the other hand, the learned A.D.P.G.A., N.A.B. submits that the charge has long been framed and that any observation made by this Court at this stage might prejudice the case of either party before the Accountability Court. It is emphasised that Asad-Bin-Zafar Approver had recorded his statement under Section 164 Cr.P.C. before a Judicial Magistrate Rawalpindi after having been duly warned and that such statement fully implication this petitioner. The learned ADFGA NAB has also submitted that under Section 26 of the NAB Ordinance, 1999, the Chairman NAB is fully authorised to grant pardon to any person who is supposed to have been directly or indirectly concerned with the offence subject to the condition that such a person makes a full disclosure of the entire circumstances. It is submitted that it was in pursuance of this provision of law that the statement of Asad Bin Zafar was recorded by the Magistrate.
After hearing both the parties and without commenting upon the merits of the case, suffice it to say that the charge against Muhammad Hussain Shah petitioner on both counts cannot be proved unless and until substantial evidence is brought on the record. The efficacy of the statement of an Approver depends upon the circumstances of each case and no implicit faith can be reposed in such a statement till such time that the said statement is put to test in accordance with law. The other charge against Muhammad Hussain Shah petitioner that he is sole arbitrator proceeded to dishonestly award the escalated amount to the Contractor, can not be decided without referring to the circumstances which led to the award to become rule of the Court. It is not denied that after making the award the same was submitted to the Court of competent Civil jurisdiction. It is also not disputed that initially objections were filed to the award. However, it was communicated by the Approver to the Law Division that N.T.B. was satisfied with the Arbitrator award. Consequently, a representative of the Government appeared before the Civil Court and the objections having not been pressed the civil Court made the award as the rule of the Court. It is tribe law that without the mechanism of the Arbitration Act 1940, as Arbitration Award remains ineffective till made rule of the Court and decree is passed accordingly.
All this clearly indicates that this is a case of further inquiry which can not be decided one way or the other without recording of the detailed evidence by the prosecution. The petitioner Muhammad Hussain is allowed bail subject to furnishing of bail bonds in the sum of rupees 5 million with two surties in the like amount to the satisfaction of the Accountability Court.
The petitioner in W.P. 216/04 is Mukhtar Ahmed who was the Member of the Escalation Committee which was headed by Saleem Maqsood petitioner in W.P. 2533 of 2003. It is submitted on behalf of these two petitioners that no case whatsoever has been made out against them. It is submitted that neither of the said petitioners has caused pay less whatsoever to the National Exchequer. It is submitted that in case of both these petitioners, nothing substantial has been brought on the record in order to establish mensrea against them. It is further submitted that whether or not any offence has been committed as alleged a reference is made to the Finance Department Regulations Wing O.M. dated 30.9.1975 and Notification dated 3.6.1992, wherein, guidelines are provided. According to the learned counsel detailed guidelines have been provided for the grant of Escalation and it has not been specifically alleged if the petitioners had violated any of the said guidelines. It is also emphasized that there is no rule of law that no escalation can be granted if it is not so provided in the original contract agreement. It has been taken note of in the Notification of 3.6.1992 that the lawful Escalation Charges are commensurate with the increase in the price of the constructional material which could not be contemplated when the original contract was signed.
On the other hand, the grant of bail has been opposed strenuously by the learned ADFGA NAB who submits that the allegations against all the petitioners are of a very serious dismension and that the nature of the white collar crime is such that the detection of the offence is both very complex as well as technical. He urged that for this reason bail may not be allowed to the petitioners and that the Accountability Court be directed to conclude the trial expeditiously.
After hearing the learned counsel, it is found that the allegations against both these petitioners are indentical. One was the Chairman while the other was a Member of the Escalation Committee. The legality of the proceedings of the Escalation Committee can not be prejudged at this stage. Once it is found that in all Government contracts, the Finance Division has been recognizing the right of genuine escalation based upon an unforseen increase in The building material, whether or not such Escalation is commensurate with the actual rise in the prices or not is a case of further inquiry.
In view of the foregoing Mukhtar Ahmed petitioner in W.P. 216/04 and Saleem Maqsood petitioner in W.P. 2533/03 are allowed bail subject to furnishing of bail bonds in the sum of rupees five million each with two sureties each in the like amount to the satisfaction of the Accountability Court.
(Z.H.) Bail allowed.
PLJ 2006 Lahore 65 [Multan Bench Multan]
Present: Muhammad Akhtar Shabbir, J.
ARIF ZAMAN--Appellant
versus
PIR DOST ALI SHAH & others--Respondents
R.S.A. No. 476 of 1967, heard on 19.4.2004.
(i) Beneficiary of document--
----Duty of--A person who is beneficiary of a document is under legal obligation to prove the validity of deed by producing sufficient and cogent evidence. [P. 69] B
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 100--Second Appeal--Concurrent findings of lower Courts--Challenged to--Suit for declaration that plaintiff is owner of suit property and entitled to get compensation of the same from Govt.--Suit decreed by both Courts--There is concurrent findings of fact against appellant and both Courts below have observed that a valid gift has been made in favour of plaintiff--Held: Findings of fact cannot be disturbed in second appeal, if the case is not covered within the provision of Section 100 CPC--Judgment and decrees of Courts below call for no interference and this affirmed--Regular second appeal dismissed. [Pp. 71 & 72] I, J & K
1986 SCMR 1304; 1970 SCMR 465; 1970 SCMR 565; 1986 CLC 2261; 1985 SCMR 1052; 1980 SCMR 675; 1982 SCMR 286; PLD 1971 SC 730, Relied.
(iii) Construction possession--
----Requirements of a valid gift--Delivery of possession--Property was in possession of tenant, true owner could make gift of property provided donor did all that he could do to complete the gift enable donee to acquire possession of subject matter--Held: Delivery of possession in such situation need not be physical but could be constructive or symbolic. [P. 70] E
1989 CLC 1467, relied.
(iv) Gift--
----To establish a valid gift litigant has to prove following three ingredients and if any of them is missing, there can be no legal/valid gift:--
(i) Declaration by the donor.
(ii) Acceptance of gift by donee.
(iii) Delivery of possession under the gift. [P. 69] A
(v) Limitation Act, 1908 (IX of 1908)--
----Art. 120--Suit for declaration--Prayer for declaring him owner and entitled to get compensation--Defendant intended to realize the amount denying right of plaintiff--Every denial of right would furnish plaintiff a fresh cause of action--The suit filed was held to be within limitation. [P. 71] G & H
1995 SCMR 284; PLD 1993 Pesh. 127; 1993 MLD 763, relied.
(vi) Qanun-e-Shahadat Order, 1984 (X of 1984)--
----S. 100--Thirty years old document--Presumtion of--A document which is more than 30 years old has a backing of legal authority and cannot be ignored easily. [P. 69] D
(vii) Registered document--
----Validity of--Presumption of truth is attached to a registered document and contents of such document cannot be controverted through oral evidence. [P. 69] C
(viii) Valid Gift--
----Essential ingredients of--Delivery of possession is not condition precedent in all cases--This condition is subject to all just exceptions--The donor if makes his intention to direct himself in the ownership of property by doing all that he could do--Held: The validity of gift is not open to challenge merely on the basis of non delivery of possession. [P. 71] F
1993 CLC 1084; PLD 1964 SC 143; 1980 CLC 1110 (S.C. AJ&K); AIR 1930 Oudh. 71; PLD 1979 S.C. (AJ&K) 245, relied.
Mirza Manzoor Ahmad, Advocate for Appellant.
Nemo for Respondent No. 1. Proceeded ex-parte vide orders dated 12.4.2000 & 26.11.2002.
Date of hearing : 19.4.2004.
Judgment
This Regular Second Appeal has been directed against the judgment and decree dated 15.6.1967 passed by Addl. District Judge, Multan whereby, the judgment and decree dated 10.3.1966 passed by Senior Civil Judge, Multan decreeing the suit of the plaintiff/respondent herein had been maintained.
The brief resume of the case is that Pir Dost Ali Shah, plaintiff had instituted a suit for declaration to the effect that he is the owner in possession of the suit property the description of which has been narrated in the plaint, entitled to get compensation of the land from the Government of West Pakistan for acquiring his property. He also prayed in the plaint a perpetual injunction against the defendants restraining them from receiving/realizing the amount from the Defendant No. 6 Plaintiff averred in the plaint and Sardar Shah, his father, was owner of the disputed land which he gifted to him through a registered gift-deed dated 16.10.1930 and under the gift delivered its possession in his favour and he further stated in the plaint that most of the area of the disputed land was covered under the river bed and whatever area came out it had been cultivated by the plaintiff. The Defendants Nos. 1 to 4 were sons of Muhammad Hussain Shah, the elder step-brother of the plaintiff. Defendant No. 5 was also plaintiff's elder step-brother. The plaintiff claimed that they had no right or title in the suit land and he came to know that the Defendants Nos. 1 to 5 have made entries in their favour in the revenue record as owners of the suit land, he denied such entries. The Government of West Pakistan Defendant No. 6 had acquired the suit property for Sidhnai Barrage Scheme and proposed compensation for the standing crops. The plaintiff claimed that only he was entitled for such compensation of the crops on the suit land but the defendants were trying to realize the compensation from the Government by making entries in their names and about a year prior to the institution of the suit he came to know of the wrong entries incorporated in the revenue record which prompted him to file the instant suit. The Defendants Nos. 1 to 4 admitted the claim of the plaintiff. The Defendant No. 5 died during the pendency of the suit and his legal heirs were brought on the record as representatives. The Defendant No. 7 contested the suit who by filing his written statement denied the averments of the plaint raising some objections.
From the factual controversies appearing on the pleadings of the parties, the learned trial Court led to frame the following issues:--
Whether the plaintiff was in possession of the land described in the heading of the plaint, when Defendant No. 6 took proceedings for its acquisition, If not what is its effect?
Whether the suit is not properly valued for purposes of Court fee and jurisdiction?
Whether the late Syed Sardar Shah made a gift of the land in question in favour of the plaintiff, If so, when?
Whether the gift mentioned in Issue No. 3 was acted upon?
In the plaintiff estopped by his conduct from beginning this suit.
Is the suit barred by limitation?
Whether Defendant No. 7 or his predecessor-in-interest perfected his title to the land in the plaint through adverse possession of 12 years? If so what is its effect?
Is the suit collusive? If so what is its effect?
To what relief is the plaintiff entitled?
After recording, appreciating the evidence, pro and contra, the trial Court vide, its judgment and decree dated 10.3.1966 decreed the suit. The appeal filed by the defendant Arif Zaman son of Barkhurdar before the Lower Appellate Court also met with failure vide impugned judgment and decree dated 15.6.1967.
Nemo appeared for the respondents, therefore, they were proceeded against ex parte. The case was fixed for final arguments.
I have heard the arguments of the learned counsel for the appellants who contended that the judgment of the Courts below is result of misreading and non-reading of evidence and not sustainable in law. Further contended that the alleged gift made in favour of plaintiff Pir Dost Ali Shah/Respondent No. 1 was invalid in the eyes of law as for lack of delivery of possession. He relied on case of Ghulam Hassan and others vs. Sarfraz Khan and others (PLD 1956 S.C. (Pak.) 309). Further contended that there are discrepancies and material contradictions in the plaintiff's evidence and plaintiff has failed to establish all the three legal requirements of a valid gift. Further argued that the Courts below erred in law in observing that the suit was filed within limitation. He forcefully stressed that the alleged gift deed has been made in the year 1930 and thereafter in number of Jamabandis/record of rights the name of the legal heirs of the deceased Sardar Shah had been entered in he column of ownership and the appellant was conscious of this fact, therefore, the suit was hopelessly barred by limitation.
I have heard the learned counsel for the appellant, perused the record with his kind assistance. The plaintiff acquired the property through a registered deed of gift wherein it is specifically recited that the delivery of possession has been made and the making of gift by the donor/father of the plaintiff had been accepted by donee.
It is settled proposition of law that the litigant to establish a valid gift has to prove three ingredients (i) declaration by the donor (ii) acceptance of gift by the donee and (iii) delivery of possession under the gift and there is no cavil to this legal aspect that if any of the three ingredients is missing there can be no legal/valid gift.
It is also settled proposition of law by the superior Courts that the person who is beneficiary of the deed/transaction is under legal obligation to prove the validity of the gift by producing sufficient and cogent evidence. In this regard in the instant case the learned trial Court has framed Issue No. 3 which reads as under:--
"3. Whether the late Syed Sardar Shah made a gift of the land in question in favour of the plaintiff? if so, when?
The onus to prove this issue was upon the plaintiff/Respondent No. 1. To discharge his onus the plaintiff produced Mutalli PW-3, Noora PW-4, Ghazi
PW-5, Dain PW-6 and Allah Ditta
PW-8. All these plaintiff's witnesses deposed in the line with each other stating that they had been cultivating the land in dispute as tenant of Pir Dost Ali Shah at different times and paying rent to him through his Munshi. The plaintiff to corroborate the oral evidence also produced documentary evidence Ex. P2 to P-12. From the perusal of Jamabandi pertaining to the year 1959-60, Ex. P-2, it reveals that the entire land was mostly "Ghair
Mumkin Darya". Some of it was Seelabi' and the rest was "Banjar Qadeem". This fact is further proved by the entries of Khasra girdawari for the crops from Kharif 1962 to Kharif 1963 and the same was shown asGhair Mumkin Darya" or "Seelabi". The above circumstances proved that most of the area of land in dispute was under the river bed and was not cultivable and the remaining area which was not under the river bed was cultivated by the tenants who appeared in the Court and deposed in favour of the plaintiff.
The document of gift deed Ex. P-1 has not been doubted nor controverted by the defendant/appellants through strong evidence. It is also settled law that presumption of truth is attached to a registered document and contents of such document cannot be controverted through oral evidence. The most important features of the case is that this document is more than 30 years old which has a backing of legal authority and cannot be ignored easily.
The two requirements, declaration by donor and acceptance by donee have not been categorically denied by the appellants. The force of the arguments of learned counsel for the appellant was that delivery of possession of the gifted land has not been effected. Where the property was in possession of a tenant, true owner could validly make the gift of that property, provided donor did all that he could do to complete the gift and to enable donee to acquire possession of subject matter of gift. Delivery of possession in such a situation need not be physical but could be constructive or symbolic. Reliance in this context can be placed to case of Khursheed Islam vs. Qamar Jahan (1989 CLC 1467).
In the instant case it is an admitted position as per documentary evidence produced by the plaintiff that the property was under the river bed or `Seelabi', therefore, delivery of actual/physical possession of the property was not possible and it has been held in case of Muhammad Bashir and 6 others vs. Muhammad Yaqub and 11 others (1993 CLC 1084) where possession was not with the donor at the relevant time, but he has made his intention to divest himself of the ownership of the property clearly by doing all that he could do to complete the gift was not open to challenge on the basis of non-delivery of the possession and factum of non-delivery of possession would not invalidate the gift in the circumstances. In case of Shamshad Ali Shah vs. Syed Hassan Shah (PLD 1964 SC 143) it has been held by the Hon'ble judges of the Supreme Court that delivery of possession in case of a gift is necessary and where the donor was admitted in possession he should deliver the possession to donee. It was further observed that as the possession at the time of gift was with tenant it was not necessary to give specific direction to the tenant to hand over the possession for the completion of the gift. In an other case Rehm Ali vs. Abdul and three others (1989 CLC 1110 (SC) AJ&K), it was observed that gift cannot be held as invalid for non-delivery of possession; and that the constructive possession as corpus is susceptible accompanied by he act of the donor showing that he parted with the ownership of the property would suffice, for the delivery of the gift and in case of Zahuran and others vs. Abdul Salam and others (AIR 1930 Oudh 71) it was also observed that delivery of actual possession is not necessary in all cases to make valid gift if the circumstances so warrant a constructive delivery of possession would suffice. In an other case Sadia vs. Pinnu and another (PLD 1979 SC (AJK) 245) that where gifted property had been mortgaged in such case it was observed that the delivery of the possession is not necessary for making valid gift and in such case gift cannot be invalid for non-delivery of possession.
It is evident from the above citations that the delivery of possession is not condition precedent for the validity of the gift in all cases and the condition is subject to all just exceptions and if the possession, as is in the present case, was not with the donor at the relevant time, but he makes his intention to divest himself in the ownership of the property by doing all that he could do, the validity of the gift is not open to challenge merely on the basis of non-delivery of possession.
In the instant case there is sufficient evidence that the donor did all acts for the delivery of the possession to the plaintiff. The tenants who were in possession at different times appeared in the Court and stated that they were the tenants of the plaintiff Pir Dost Ali Shah and had been paying share of `Batai' to him.
For what has been stated above, it is established that the plaintiff/Respondent No. 1 has been successful in establishing the valid registered gift in his favour by his father Syed Sardar Shah.
The answer to the arguments of learned counsel for the appellants that the suit is barred by limitation is that under Article 120 of the limitation Act the time for filing of a suit for declaration starts when rights is denied by the defendant. There can be no right to sue until there is unequivocal threat to infringe their rights by the defendant against whom the suit is instituted. The plaintiff has prayed for declaring himself owner in possession of the property and entitled for receipt of a compensation of his acquired land by the Government of West Pakistan but when the defendant intended to realize the same denying the rights of the plaintiff he filed the suit for declaration on every denial of his right and every denial of right would furnish the plaintiff a fresh cause of action Reliance is placed on case Wali and 10 others vs. Akbar and 5 others (1995 SCMR 284), Ata Muhammad vs. Naseer-ud-Din (PLD 1993 Pesh. 127) and Muhammad Yousaf vs. Noor Din and others (1993 MLD 763).
As observed in preceding paragraphs that the defendant intended to realize the amount of compensation of acquired land he filed the instant suit, therefore, from that date the right to sue accrued to him and he filed the suit which was within limitation.
There is a concurrent findings of the fact against the appellants and both the Courts below have observed that a valid gift has been made in favour of the plaintiff/Respondent No. 1 and the findings of the Courts below have been challenged by the appellant through this second appeal Section 100 CPC provides as under:--
100-Second Appeal: (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by a Court subordinate to a High Court on any of the following grounds:--
(a) the decision being contrary to law or the usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the proceeding provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
From the plain reading of the above provision of Section 100 CPC, it would mean that the finding of fact cannot be disturbed in second appeal, if the case is not covered within the above referred provisions of Section 100 of CPC. Reference can be made to case of Pir Walayat Shah vs. Muhammad Shafi and another (1986 SCMR 1304), The Province of West Pakistan through Deputy Commissioner Khairpur vs. Imam Bakhsh (1970 SCMR 465), Lal Badsha and five others vs. Sohail Khan (1970 SCMR 565), Abdul Rasool vs. Muhammad Nawaz and others (1986 CLC 2261), Sitaran Bibi vs Sher Muhammad Khan (1985 SCMR 1052). In case of Begum Bibi and nine others vs. Abdul Ghani and four others (1980 SCMR 675) it has been observed by the apex Court that the finding of fact recorded by trial Court and District Judge on ownership of a transaction could not be competently set aside by High Court unless judgment passed by District Judge shown to be contrary to law or some usage having force of law or to have failed to determine some material issue of law or procedure adopted shown to be wrong or defective possibly affecting decision on merits. It was further observed in case of Akbar and others vs. Muhammad Shah and four others (1982 SCMR 286) that the findings of fact recorded by the District Judge not to be interfered with in the second appeal Reappraisal of evidence at this stage not possible. Non-interference by the High Court accompanied by finding of fact by Courts below was also followed in case of Sikandar Hayat vs. Master Fazal Karim (PLD 1971 SC 730).
For what has been discussed above, the judgment and decree passed by the two Courts below call for no interference and unexceptionable, thus, affirmed. For the foregoing reasons, this regular second appeal being devoid of force is dismissed.
(M.A.R.) Appeal dismissed.
PLJ 2006 Lahore 72 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD JAMIL & 4 others--Petitioners
versus
CHIEF SETTLEMENT COMMISSIONER, LAHORE & 3 others--Respondents
W.P. No. 35-R of 2001, heard on 30.6.2004.
Constitution of Pakistan, 1973--
----Art. 199--Entries of P.T.D.--Challenged to--A Cotton Ginning Factory owned by non-Muslim evacuee put to auction and purchased by a lady and executed surrender deed in favour of Respondent No. 4--Another property (10 shops) allotted to petitioners and vendors and P.T.Ds. issued--Entitlement--Shops were also part of factory purchased by her dismissed by settlement authorities and then High Court and Supreme Court also rejected her request by dismissing her revision petition--Approval of surrender deed in favour of respondent by the Settlement Commission (Industries)--Issuance of A.T.O. (Transfer Order)--Added that upper portion of the shops is also included in the property--Challenged to through writ jurisdiction--It stands finally concluded upto Supreme Court of Pakistan that shops were expressly excluded from industrial zone and were never put to auction--Review petition of lady was dismissed by Supreme Court and judgment of High Court upheld, whereby High Court confirmed the order of Chief Settlement Commissioner declaring that only factory was put to auction and sold to the lady--Examination of T.O. in juxtaposition to the orders of settlement authorities and High and Supreme Court, it is held that the words "roofs of all the shops" is an interpolation not supported by any order--No order passed by settlement authorities that roofs of shops admittedly transferred to petitioners were included in factory--On the other hands the orders are to effect that shops were not included in factory--Writ Petition in these circumstances was allowed and entry of words "upper portions of all shops" in Transfer order declared to be without lawful authority and set aside. [Pp. 75 & 76] A, B, C, D & E
1981 SCMR 892; 1982 CLC 2177; 1984 CLC 1004 & 1984 CLC 1587; PLD 1984 SC 213; 1983 SCMR 1285; 1984 SCMR 1439, ref.
Syed Muhammad Ali Gillani, Advocate for Petitioners.
Ch. M. Musa, Advocate for Respondent No. 4.
Nemo for remaining Respondents.
Date of hearing : 30.6.2004.
Judgment
The admitted facts of this case as per pleadings of the contesting parties are that a Cotton Ginning Factory was owned by non-Muslim evacuees, namely, Davi Das and Hans Raj. Another property comprising of 10 shops was owned by Govind Ram evacuee. Both the properties are adjacent located at G.T. Road, Mian Channu City.
The shops were allotted to some of the petitioners and to the vendors of the others. PTDs (Annexes: A/1 to A/11) were issued in the year 1963. The said
Factory was proposed to be auctioned on 23.7.1959. On the day of auction, a controversy arose as to whether the said 10 shops are to be treated as part of the Factory, the matter was referred by the Auction
Committee to the Additional Settlement Commissioner, Multan, who further referred the matter to Additional Settlement Commissioner
(Industries), Lahore.
Vide memo dated 19.8.1959 (Annex: B'), the said officer ordered that the shops are to be excluded and only the Factory is to be auctioned. Consequently, the auction was held on 18.9.1959. One Mst. Khair-un-Nisa made the highest bid of
Rs. 2,06,000/-. She made a deposit of Rs. 1,64,677/- and the possession of the factory was delivered to her on 15.10.1959. The Settlement Department demanded the payment of balance amount of Rs. 41,323/-. The said lady did not pay the same and consequently the
Factory was sealed. Later upon an undertaking given on behalf of the said lady for the payment of the balance amount, the Factory was desealed. On 14.8.1967 an application was filed before the ASC (Industries) that possession of shops be delivered. This application was dismissed on the ground that shops were never sold to the said auction purchaser. The matter then came up before a
Settlement Commissioner (Industries) when an offer was made that in case the demand of Rs. 41,323/- is withdrawn, the lady would not demand the possession of the shops. The said Settlement Commissioner
(Industries) referred the matter to the Chief Settlement Commissioner with a report that as the shops were excluded from the auction and were never sold to the auction purchaser and that since the same had been allotted to the persons in possession, the said demand be withdrawn. However, the Chief Settlement
Commissioner did not agree and dismissed the application on 29.9.1970 with the observation that the shops were not included in the auction. The auction purchaser then filed W.P. No. 1022-R/70 to challenge the said order dated 29.9.1970 of the CSC. The writ petition was dismissed by this Court on 7.10.1974 vide judgment (Annex:D'). The Hon'ble Supreme Court of Pakistan refused to grant leave on 27.1.1991 (Annex: E') while review petition was dismissed on 14.4.1991 (Annex:F'). The allottee of Shop No.
4 which had a Chobara on top filed ejectment application against Khair-un-Nisa for vacation of Chobara which was allowed. A first appeal was dismissed by learned District Judge on 20.2.1994 while SAO No. 7/94 was dismissed by this
Court on 19.3.1995. At this juncture Mst. Khair-un-Nisa executed a surrender deed in favour of present Respondent No. 4 on 12.9.1995 which was approved by the Settlement Commissioner (Industries) on 29.9.1995. On 20.12.1995, he directed that transfer order be issued in favour of Respondent No. 4 A T.O. was issued on 18.1.1996. Now in this document, while describing the property subject matter of the transfer, it was stated in the schedule that the upper portion of the shops is also included. This fact came to the knowledge of the petitioners during the proceedings before a Rent Controller whose order dated 29.5.2000 is Annex: J/1. The copy of transfer order dated 18.1.1996 is Annex:
`K'.
It has been stated that since the shops were never sold to the said auction purchaser and were transferred to the petitioners or their vendors, the addition of the roofs of the said shops in the said T.O. by the official respondents is illegal and void. The Respondent No. 4 in his written statement while admitting the said history of the case insists that the roofs of the shops were adjacent to the factory and as such had been sold and consequently transferred by the Settlement Department.
Syed Muhammad Ali Gillani, learned counsel for the petitioners in the aforenoted admitted state of facts argue that settled law is that unless otherwise provided in the PTDs issued to his clients who have admittedly been transferred the shops, the transfer would mean from bottom to sky. He relies on the cases of Nazir and others v. Syed Israr Ahmad etc. (1981 SCMR 829), Mushtaq Ali etc. v. Noor Muhammad etc. (1982 CLC 2177), Haji Faqir Ali v. Siraj Din and others (1984 CLC 1004) and Mirza Hashim Baig v. Settlement Rehabilitation Commissioner and others (1984 CLC 1587). Learned counsel for the Respondent No. 4 on the other hand, has cited the judgments in the cases of Sher Bahadar Khan v. Qazi Islamuddin and another (PLD 1984 SC 213), Abdul Rashid v. Settlement Commissioner and others (1983 SCMR 1285) and Salahuddin v. The Settlement Commissioner and others (1984 SCMR 1439) to urge that this Court cannot go behind the said transfer order while exercising constitutional jurisdiction.
I have examined the several documents referred to by me above. It stands finally concluded upto the Hon'ble Supreme Court of Pakistan that the shops were expressly excluded, as these were never put to auction alongwith the industrial concern and that it has been opined that when the said lady offered the highest bid she must have been aware that the shops were not part of the industrial concern and that she cannot claim that the shops should be transferred to her alongwith the Factory. Now the matter was finally concluded on 14.4.1991 when C.R.P. No. 16-L/91 was also dismissed by the Hon'ble Supreme
Court. Needless to state that the Hon'ble Supreme Court had upheld the judgment of this Court in W.P. No. 1022-R/70 which in its turn confirmed the order dated 29.9.1970 of the Chief Settlement Commissioner declaring that only the Factory was put to auction and sold to the said lady. I have examined the order dated 20.12.1995 (Annex: M'). It narrates that the Respondent No. 4 is present, all the dues for Davi Das Hans Raj Cotton Factory has been deposited and it has been verified. The proceedings are complete and a T.O. be issued in favour of
Respondent No. 4 regarding the said Cotton Factory. Now in the said T.O.
(Annex:R/19' to the written statement of the Respondent No. 4) in Schedule-A against Serial No. 1 (Particulars of the property), it is written Devi Das Hans
Raj Cotton Factory, Mian Channu. Against the Name of evacuee owner, it is mentioned Gobind Ram Mansar Ram, Ram Krishan, Devi Das & others. Against
Serial No. 3 (Extent of right/interest transferred), it is written 100%.
Thereafter, in bracket, the following words are written:--
Land, Building, Machinery & Upper Portion of all shops."
Now upon an examination of the T.O. in juxta-position to the orders consistently passed by the Additional Settlement Commissioner (Industries), Chief Settlement Commissioner (Industries), this Court and the Hon'ble Supreme Court of Pakistan, I do not feel any hesitation in holding that the said words i.e. "roofs of all the shops" is an interpolation which is not supported by any order of any competent authority of the Settlement Department and, of course, the judicial orders passed by this Court or Hon'ble Supreme Court of Pakistan.
The said judgments cited by the learned counsel for the petitioners fully supports his contention and the PTD states that the respective shops have been transferred to the transferees and there is nothing in any of the said PTDs that the roof is not included.
So far as the judgments cited by the learned counsel for the Respondent No. 4 are concerned, these laid down that the orders passed by the Settlement Authorities determining the extent of the property transferred are not to be lightly intereferred with. In the present case, there is no order passed by any Settlement Authority that the roof of the shops admittedly transferred to the petitioners is included in the said Factory sold to Khair-un-Nisa and ultimately transferred to Respondent No. 4. On the other hand, the orders are to the effect that the shops are not included in the Factory; these were not included in auction and these were never sold to the said-lady.
This writ petition accordingly is allowed inasmuch as the said entries in the Transfer Order No. 307/SC/Ind./96 dated 18.1.1996 whereby the "upper portion of all shops" is mentioned in Schedule-A is declared to be without lawful authority and is set aside. The official respondents are hereby directed to correct the transfer order accordingly. No orders as to costs.
A copy of this judgment be remitted to the Respondents Nos. 1 to 3.
(M.A.R.) Order accordingly.
PLJ 2006 Lahore 76 (DB)
Present: Muhammad Muzammal Khan & Syed Shabbar Raza Rizvi, JJ.
KHURRAM NAZIR--Petitioner
versus
UNIVERSITY OF HEALTH SCIENCES LAHORE through its Vice-Chancellor, Sheikh Zayed Hospital, Lahore and another--Respondents
Writ Petition No. 5617 of 2005, heard on 20.4.2005.
Educational Institutions--
----Constitutional petition--Constitution of Pakistan, 1973--Art. 199--Final MBBS Examination--Petitioners failed in examination--Deficiency from other paper in which secured excessive marks refused--Grace marks declined--Discrimination--Allegation of--Manifest from regulation that candidate failing in more than one subject--Not entitled to any grace marks--Candidates failing in one subject only was to be bestowed with of 5 grace marks in order to make up his deficiency in that subject if that be of 5 marks or less--No case of treatment of petitioners with discrimination could be made out, as they were treated at par along with others candidates who appeared in final professional examination of MBBS--Respondents used one yard stick for all students in tabulating results, hence it cannot be accepted that petitioners were treated with any discrimination--Held : Petitioners were not entitled to benefit of 5 grace marks having been failed in two subjects--Excessive marks in other subjects cannot be used to make up deficiency in failing subject--Petitions devoid of force deserved dismissed--Petition dismissed. [Pp. 80 & 82] A, B & C
Malik Azam Rasul, Advocate for Petitioner.
Mr. Rasal Hassan Syed, Advocate for Respondents.
Date of hearing : 20.4.2005.
Judgment
Muhammad Muzammal Khan, J.--This judgment proposes to decide 10 Constitutional petitions, the one in hand and the other mentioned in the schedule appended herewith, which are being disposed of collectively as those raise similar question of law/facts and require alike interpretation of the provisions of law applicable and are directed against the same set of respondents.
Sr. W.P. No. Name. Examination Failing in Failing No. of
No Margin subjects
MBBS Supp
(Composite), Dec,04
Nawaz MBBS Jan, (Theory), 05
ii. ENT 1 marks
(Clinical)
Total :3
Allah (Clinical)
Ahmad (Clinical)
ii. Surgery 5 marks
(Clinical &
Practical)
iii. Eye: 5« marks
iv. ENT 4 marks
(Clinical)
Total: 18«
Yaqub (Clinical)
ii. Surgery 5 marks
(Clinical)
Total: 6
Aman (Clinical)
Nazir (Clinical & 6 marks One
Practical)
Ashraf
Saleem (Clinical)
S.# W.P.# Petitioner's College Professional Result
name.
Subject Failing
Mehmood MBBS Surgery 1
Eye 1.5
Total 2.5
The above detailed result of the writ petitioners depicts that most of them could not clear two of their subjects and rest of them who failed in one subject, were short by more than 5 marks.
Respondents in response to notice by this Court besides filing report and parawise comments, appeared through their Legal Advisor and maintained that none of the petitioners is entitled to the benefit of the regulation relied by them and according to respondents none of the regulations in question, equipped any of the functionaries of the respondents to grant the adjustment of marks from the other subject or to give grace marks in case of failure of the students in more than one subject or in case of failure in one subject, if the short marks are more than 5 marks. They stressed that these regulations have to be structly construed/complied and violation of those, if any, in the earlier days, do not furnish lawful basis for alike treatment by coding those incidents as precedent. It was assertively argued that neither the petitioners have claimed any malice on the part of the respondents nor the same is made out from the record, hence, the arguments of treatment of the petitioners with discrimination has no substance. All the writ petition were contested by them from tooth to nail except in one case (WP. 4338-2005) filed by Zeeshan Hassan students of third Professional Examination MBBS who was declared unsuccessful in two subjects i.e. Community Medicine by two marks, and Pathology by 4 marks. The learned Legal Advisor for the respondents attempted to justify the adjustment of Zeeshan Departmentally by urging that his paper of Community Medicines was falsely marked by the Examiner with total marks of 99 instead of 100 hence, his deficiency of 2 marks in this subject stood cured if the paper is marked with total marks of 100.
We have minutely considered the respective arguments of the learned counsel for the parties and have examined the record with their assistance. No doubt Vice Chancellor/Chief Executive of the University of the Health Sentences vide office order dated January, 23, 2004, granted 5 extra grace marks in Theory in all the Supplementary Professional Examination held for 2003-2004, in each subject but through subsequent notification dated 24.2.204, 5 grace marks were ordered to be added to the subject in Theory, Practical, Clinical etc., in various MBBS/BDS Examination provided the candidate who failed in one subject only. The question which hinges for determination is that as to whether Vice Chancellor/Chief Executive was competent to confer 5 extra marks in each subject under the Calendar of the University of Health and Sciences, Lahore. In order to appreciate the controversy and for ready reference, regulation No. 2 of the Calendar, being directly applicable which was notified by the respondents on 14.7.2004 is reproduced below namely:--
"The minimum number of marks requires to pass this Examination for each subject shall be fifty percent (50%) in written, fifty percent (50%) of the aggregate in the oral and practical/clinical and fifty percent (50%) in the clinical examination, separately at one and the same time. Candidates two secure eighty percent (80%) in the clinical Examination separately atone and the same time, candidates who secured eight percent (80%) or above marks in any subject shall be declared to have passed "with distinction" in that subject and no candidate who does not pass in all the subjects of the second Professional Examination as a whole at one and the same time shall be declared to have passed "with distinction" in any subject."
Besides the above reproduced regulation, the controlling provision for conferment of grace marks, reads as under:
"Provided a candidate shall be deemed to have passed if he/she fails only in one subject (written, oral and practical and aggregate) by a margin of 5 marks, when, he takes the Examination, either in all the subjects at one time or having appeared and failed in a part of the examination, re-appear in the subject in which he had not passed provided further that he/she will be granted this concession only once in this Examination (Annual or Supplementary) The number of marks by which failing in more than one subject shall not be entitled to any grace marks."
Theory Viva/Practial/Clinical
Examination
(1) Theory 50% of the (1) Viva/practical/clinical
allocated marks of the examination/internal
Subject. assessment constituted 50%
of the total allocated marks
of the subject
(2) 50% marks out of total (2) 50% marks out of total
Allocated marks of the allocated marks with at least
Theory would be the 50% marks in clinical
Pass Marks examination were required
to pass Examination.
Departure from the formula flowing from the above referred regulations was not permissible under law, and in expressing this principle, we have backing of earlier precedent set by the superior judiciary of this country in the cases of Karim Bakhsh vs. Controller of Examination and others (1997 CLC 1524) and Murid Hussain vs. Bahauddin Zakriya University, Multan through Vice-Chancellor and another (2004 YLR 1375).
Office order dated 23.1.2004 and the judgment by the learned Single Judge in Chamber of this Court in writ Petition No. 2896-2004 have no legal basis, as Vice Chancellor could not confer 5 grace marks in each subject, in violation of the controlling regulation of the Calander and thus, we feel ourselves handicapped to contribute to this view that such grace marks should be given to the students in each failing subject. If the view canvassed by the petitioner is adopted, the result would be annulling the regulations which is not the function of the Courts. In alike circumstances, this Court took of its hands from interfering in executive orders, in the judgment in the case of Zahoor Ahmed Azhar vs. Islamia University, Bahawalpur through Vice-Chancellor and 4 others (PLD 1998 Lahore 324). Besides it, law has now settled about the proposition that the acts have to be done in the manner prescribed and in no other method. Office order dated 23.1.2004 was un-authorizedly issued, hence, the same did not confer any right on the petitioners to claim that the same treatment be met with them on the basis thereof. Judgment if needed in support of this principle of law, reference can be made to the case of Jalil Ahmad vs. Public Service Commission and another (1998 CLC 435).
As regards the submissions of the petitioners that the regulations under discussion having been notified on 14.7.2004 i.e. during the course of their studies, could not be given retrospective effect, and would apply to the students who get admission in MBBS after promulgation these regulations. We do not see an eye to eye with the petitioners because, these regulations, become instantly applicable and would control the students already getting education with the respondents. This controversy was examined by the Honourable Supreme Court and decision was against the writ petitioners in the case of Miss Sultana Khokhar and 2 others vs. The University of the Punjab through its Registrar (PLD 1962 SC 35). This judgment was followed in the case of Muhammad Akbar vs. Bahauddin Zakariya University through its Registrar and others (1997 CLC 280).
There is no assertion by the petitioner that regulations in hand were tainted with malice towards of the respondents which as a matter of fact were brought in order to get better result and well oriented doctors. Similarly, no case of treatment of the petitioners with discrimination could be made out, as they were treated at par alongwith 1285 candidates who appeared in final Professional Examination of MBBS. The respondents used one yard stick for all the students in tabulating their results, hence we are not ready to accept that the petitioners were treated with any discrimination. The case of Zeeshan Hassan in Writ Petition No. 4338 of 2005 really deserved indulgence by the departmental authorities as his paper of community medicine was marked on the basis of total marks as 99 instead of 100.
For the reasons noted above, we have no ambiguity that the petitioners were not entitled to benefit of 5 grace marks having been failed in two subjects, and the candidates failing in one subject, were deficient by more than 5 marks. Their excessive marks in other subjects cannot be used to make up deficiency in the failing subjects thus, all these petitions being devoid of force deserved dismissal. Even otherwise this Court cannot undertake exercise of tabulation of marks falling within the exclusive ambit of jurisdiction of the respondents. All the petitions noted above are accordingly dismissed being devoid of any force, with no order as to costs.
(A.S.) Petitions dismissed.
PLJ 2006 Lahore 82
(Rawalpindi Bench Rawalpindi)
Present: Maulvi Anwar Ul Haq, J.
SAQIB SAEED SOLE PROPRIETOR SAQIB FABRICS P. 213, FAISALABAD--Petitioner
versus
FEDERATION OF PAKISTAN through the SECRETARY MINISTRY OF COMMERCE GOVT. OF PAKISTAN, ISLAMABAD
& 2 others--Respondents
W.P. No. 1166 of 2000, 2119 to 2121 of 2000, hard on 19.3.2004.
Constitution of Pakistan, 1973--
----Art. 199--Vice Chairman of Export Promotion Bureau proceeded against petitioners--Froged the export licences forms and mentioned quantities and value far in excess of genuine export licences that issued to them by respondent, and effected export against forged documents--Allegation of--Petitioners accepted liability and showed readness to make good the losses suffered while replying show cause notice issued to them--Vice Chairman directed petitioners to provide quota for the excess quantity determined therein for EU-Cot-20 from every possible source, excess shipment not to be counted towards performance in next year and to pay fine equal to FOB value of illegal exported consignments--Review application declined by Secretary--Challenged through Writ Petitions--The provisions under which said orders have been passed are contained in the statutory orders under which show cause notices were issued--Determination that who forged documents resulting in excess shipment in not contemplated in said provisions--Petitioners throughout stated to be ready to recompensate and surrender excess quota--The penalty of fine had to be considered in the light of circumstance mentioned in the order of chairman--The offer of petitioners to surrender the excess quota is binding upon them and they are bound to comply with the same--Matter of fine imposed and offer of petitioners to pay compensation equal to quota against excess quantities exported against forged documents need examination by Secretary--Writ Petitions partly accepted and petitioners directed to surrender the excess quota as per order of Chairman--Case remanded to Secretary (Respondent No. 1) for re-hearing review applications afresh considering the offer of petitioners vis-a-vis fine imposed by the Vice Chairman. [Pp. 86, 87 & 88] A, B, C, D, E, F & G
PLD 1965 (W.P.) 742, AIR 1956 Allahabad 610, AIR 1970 SC 253, PLD 1979 Kar. 709, PLD 1996 Kar. 68, 1997 MLD 737 and 2004 MLD 144 ref.
Mr. Aitzaz Ahsan, Advocate for Petitioner.
Qazi Ahmad Naeem Qureshi, Federal Counsel with Mr. Mushtaq Ahmad, Deputy Director for Respondents.
Date of hearing : 19.3.2004.
Judgment
This judgment shall decide the instant writ petition, Writ Petition No. 2119 of 2000, Writ Petition No. 2120 of 2000 and Writ Petition No. 2121 of 2000, as common questions are involved and these were ordered to be heard together.
As per contents of these somewhat similarly worded writ petitions, all the petitioners therein were served with show-cause notices calling upon them to show cause as to why punitive action should not be taken against them under Para-19(3) of SRO, 11(1)/99 dated 9.1.1999 and Para-20(3) of SRO.1(1) 2000 dated 6.1.2000. The allegations in the show cause notices were that the petitioners forged the export licenses Forms and mentioned quantities and values for in excess of the genuine export licenses that had been issued to them by the respondents and to have effected export against the said forged documents. The written replies were filed by the petitioners in all these cases. After making a statement of the charges levelled against them, the petitioners stated that upon receipt of the show cause notices, they were shocked to learn that a huge amount of money had not been paid to the Government Treasury/concerned parties, then there is a reference to a probe and the revalation that one Irshad Ahmad who was engaged as an agent/employee of the petitioners and who was the owner/Proprietor of M/s. Hitee International was responsible for all this mess. He was the sole person who was handling all the paper-work for the export of products of the petitioners including the purchase and rent quota/visas for export. According to the petitioners, the said Irshad Ahmad had actually falsified the said documents. It was further urged that the said Irshad Ahmad had been obtaining the signatures of the petitioners on certain documents from time to time whereas they had no knowledge as to what they were signing and all this was done by Irshad Ahmad of his own for his own monetary and personal gains. These activities were detected by the respondents resulting in the disciplinary proceedings against the petitioners. It was then stated that the efforts are being made to trace the said Irshad Ahmad. Legal notices have been served and suits have also been filed wherein Isrhad Ahmad has been summoned. Criminal proceedings are also being initiated. Thereafter, the petitioners have stated that they acknowledged that fraud had been committed but this all had happened because of sheer inexperience and under reliance on Irshad Ahmad, but there was no guilty intention on their part. Ultimately, the petitioners accepted their liability and stated that they are ready to make good to losses suffered by the concerned parties and assure that all precautions will be taken so that nothing of this sort could happen in future.
The proceedings were conducted by the respondents-Vice Chairman of Export Promotion Bureau. Vide order passed on 15.3.2000, the said Vice Chairman directed the petitioners to provide the quota for the excess quantity determined therein for EU-Cat-20 from whatever source possible. The excess shipment was not to be counted towards the performance in the next year or in any subsequent year. The petitioners were also directed to pay fine equal to FOB value of all the illegal exported consignments. I may note here that during the course of proceedings, one Saqib Saeed who alongwith his father represented all the petitioners before the said Vice-Chairman was confronted with some further acts of forgery and illegal excess export against forged documents. It was observed that the said person stated that he was aware of the said forgeries and volunteered to provide quotas held by them in the said cases as well. The said order also covers the said additional forgeries and the excess export made against the forged documents. Against the said order dated 8.5.2000, the petitioners filed review applications which were decided by a Secretary (Respondent No. 1) on 22.5.2000, who refused to interfere. The petitioners were directed to comply with the orders passed by the Vice-Chairman failing which the quota services will remain suspended and the action will be taken against them under the relevant laws and rules.
Writ Petition No. 1166/2000 was filed in this Court on 30.5.2000. It came up for hearing before the Court on 5.6.2000 when a report was called for. Writ petition was then taken up on 29.8.2000 when it was admitted to regular hearing. C.M. No. 3546/2000 was taken up when it was stated on behalf of the petitioner that he is prepared to surrender the excess quota and to furnish Bank-guarantee for half of the amount of penalty and an adequate security for the remaining half to the satisfaction of the said Vice-Chairman. Upon the said representation, the recovery of the penalty was stayed upon fulfillment of the said conditions. I may note here that the remaining writ petitions were filed in this Court on 12.9.2000. These were taken up on 13.9.2000 and were admitted and directed to be heard alongwith Writ Petition No. 1166/00.
Vide order of this Court dated 18.10.2000, it was noted that none of the said conditions have been performed by the petitioner whereupon the interim relief granted vide order dated 29.8.2000 was accordingly recalled.
Mr. Aitzaz Ahsan, learned counsel for the petitioners argued that notwithstanding the fact that the forgery as alleged by the respondents was committed and as a result excess import was made. Since the penalty was proposed to be imposed upon the petitioners, therefore, the burden of proof was upon the respondents to establish that the forged documents were used by the petitioners with the said knowledge and intention and unless this was to be done, the penalty could not have been imposed. He has relied upon Muhammad Yaqoob Gorowara vs. Mir Muhammad Hasan and another (PLD 1962 (W.P.) 742, State vs. Sheo Prasad Jalswal (AIR 1956 Allahabad 610), M/s. Hindustan Steel Ltd., vs. The State of Orissa (AIR 1970 Supreme Court 253), Anis Ahmad vs. Government of Pakistan and 3 others (PLD 1979 Karachi 709), M/s. Kamran The Collector of Customs (Exports) and 4 others (PLD 1996 Karachi 68), Hussain Industries Limited vs. Textile Quota Management Directorate, Government of Pakistan, Karachi and 2 others (1997 MLD 737) and Muhammad Anar vs. The State (2004 MLD 144). The precise reliance of the learned counsel is upon the observation of the Vice-Chairman that the possibility that the petitioners were in fact defrauded by the said Irshad could not be ruled out. He argues that the element of doubt being there, the benefit was to be granted to the petitioners and the penalty could not have been imposed upon them. Learned counsel has also made out a grievance about the said additional forgeries which were taken up during the course of proceedings by the Vice-Chairman and penalty was imposed in respect thereof as well.
Mr. Ahmad Naeem Qureshi, learned Federal Counsel for Pakistan, on the other hand, contends that this is a case where forgery was admitted. According to learned Federal Counsel in view of the admitted fact that not only the excess quantity was exported by and corresponding price/value was also received by the petitioners in Pakistan, it is not believable that they were not aware of the factum of forgery and the corresponding benefits received by them. Learned Federal Counsel further refers to the order in review passed by the Secretary to urge that in the said proceedings as well, the said fact of forgery was not denied and the offer to recompensate particularly with reference to the quota was reiterated. Accordingly to the learned Law Officer, illegal export exceeds by millions of kilograms of the corresponding value, therefore, the penalties have been lawfully imposed.
I have given some thought to the respective contentions of the learned counsel for the petitioners and the learned Law Officer. I have already reproduced above in some detail the proceedings commenced from the service of show-cause notice and ended in the decision of the said review application by the Secretary. Now upon plain reading of the show-cause notice, the reply and the stance taken by the petitioners during the course of proceedings before the Vice-Chairman as well as the matter of review before the Secretary, there is no manner of doubt that the export documents were forged and utilized. Even the learned counsel for the petitioners has not denied the said fact while arguing the case. With reference to some of the judgments cited by him above in the matter of forged currency, learned counsel for the petitioner has sought to draw an analogy that since more possession of the forged currency is not an offence, similarly the admission of the petitioners that the documents were forged which were not in their knowledge and without a criminal intent, they are not liable to any penalty.
As noted by me above, the primary reliance by the learned counsel is upon the observations of the Vice-Chairman in the said order passed by him on 15.3.2000 to the effect that there is a strong possibility of fraud by the said Irshad Ahmad being perpetrated on the petitioners. However, at the same time, the observations of the Vice-Chairman are that the petitioners have certainly been irresponsible, careless, negligent, over-indulgent and connivance in the whole matter inter-se the said Irshad Ahmad and the petitioners cannot be completely ruled out. Again the Vice-Chairman has observed that since the remittance has been received according to the excessive forged export license quantity, the stance of the petitioners is credible to some extent.
The provisions under which the said orders have been passed are contained in the said statutory orders and the same are reproduced as under:--
"Contravention of the policy.--(1) No allocation shall be valid unless it is in accordance with the provision of this order.
(2) Any exports made in contravention of the provisions of this order shall not count towards performance of the exporter and shall be treated as irregular and void.
(3) Cases of shipments in contravention of the rules, and other malpractices including circumvention of bilateral agreements, exports against forged, fake visas, export licences, shipment in excess of the allocated quantity, misdeclaration of value, weight and category shall be liable to any or all of the following penalties, namely:--
(a) Suspension or cancellation of a part or the whole of export quotas whether acquired on the basis of performance or purchase or any other means whatsoever, imposition of a fine up to two hundred per cent of the F.O.B. value of the consignment or any or all of the above; and
(b) suspension or cancellation of export registration or other action under the Registration (Importers and Exporters) Order, 1993.
It will be seen that the penalty prescribed in sub-clause (a) of Clause-3 of said Para-20 is to be incurred upon in a case, inter-alia, of exports against forged, fake visas, export licenses or shipment in excess of the allocated quantity. To my mind, the determination as to who has forged the documents resulting in the excess shipment is not prima facie contemplated in the said provisions. The fact that the export in excess shipment was made against forged or fake documents would result in the imposition of the said penalty. As stated by me above, the said fact stands admitted in this case, i.e. excess shipment against forged documents. The petitioners have not alleged that the products that were so exported did not belong to them and they did not receive the value thereof after the said excess shipment. I also find that right from the day one and also after receipt of the said show-cause notices, the petitioners had throughout been stating that they are ready to recompensate and surrender the excess quota. This was their stance before the Vice-Chairman as well as before the Secretary and even before this Court.
So far as the imposition of fine is concerned, the Vice-Chairman is authorized under the said statutory order to impose a fine upto two hundred per cent of the F.O.B. value of the consignment. The Vice-Chairman has imposed the fine equal to one hundred per cent of the F.O.B value of the said illegal consignment. To my mind, the penalty of fine had to be considered in the light of the circumstances stated by the Vice-Chairman in his order. I may further note here that there is no objection as to the quantities worked out by the Vice-Chairman vis-a-vis the excess shipment against the said forged documents.
The learned Federal Counsel has pointed out that even before the Secretary, the petitioners offered that the quotas held by them be adjusted against their liabilities in the export EU Cat-20 items and they further offered compensation equal to the quota rent exported against the forged documents. Learned counsel for the petitioners after consulting his client states that they are still bound by the said offer. Learned Federal Counsel after consulting with the concerned Officer is of the opinion that even going by the said offer, the consequences would be the same as observed in the order by the said Vice-Chairman and was upheld by the Secretary. Be that as it may, as stated by me above, since the petitioners had throughout been stating that they are bound to surrender the excess quota, the same offer is binding upon them and thus are bound in law as well as equity to abide by and comply the same. However, the matter of fine imposed by the Vice-Chairman and the said offer made by the petitioners to pay compensation to the respondents equal to the quota/rent against the excess quantities exported against the forged documents needed to be property constituted by the Secretary, which has not been done.
For all what has been stated above, all the other petitions are partly allowed and disposed of in the following manner:--
(i) The petitioners to surrender the excess quota as ordered by the Vice-Chairman in his order and as per their own undertaking.
(ii) So far as the matter of imposition of fine is concerned, the case is remanded to the Secretary (Respondent No.1) for re-hearing and decision of the review applications afresh after considering all the relevant facts and the offer of the petitioners vis-a-vis the fine imposed by the Vice-Chairman.
(M.A.R.)
PLJ 2006 Lahore 88
[Bahawalpur Bench Bahawalpur]
Present: Sh. Hakim Ali, J.
FATEH MUHAMMAD--Petitioner
versus
FAQIR MUHAMMAD etc.--Respondents
W.P. No. 893 of 1993/BWP, decided on 25.4.2005.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 84 (2)--Comparison of signatures/thumb impression of disputed document--Issuance of bailable warrants of marginal witnesses of document in question, on their non-appearance on service of summons, assailed--Summoning of parties/witnesses through processes, provided is basic power upon which whole fabric of trial of suit in dependent--If any witness does not appear inspite of his service or refuses to appear in Court, Trial Court has got enough power to compel his attendance through modes prescribed by C.P.C.--Section 32 of C.P.C. empowers Court to cause attendance of any person in Court to obtain his signatures for purpose of comparison--Trial Court besides issuing notice can also attach salary or property of such disobedient person who refuses to appear and can impose fine also--Section 94 of C.P.C. also grants powers to Court to pass any other inlocustory order which such Court considers necessary just and convenient in a case in given situation, particularly where law has not provided any of its solution--Order in question, passed by Court being proper and in accordance with law, no interference was warranted into the same. [Pp. 90 & 91] A
PLD 1978 Lahore 1459, ref.
Mr. Ijaz Ahmad Chaudhry, Advocate for Petitioner.
Mr. Muhammad Mahmood Bhatti, Advocate for Respondents Nos. 1 to 3.
Date of hearing : 25.4.2005.
Order
Two interim orders, passed by learned trial Court and appellate Court, as far back as in the years 1992, 1993, during the pendency of a suit, are the subject matter of this writ petition.
Brief facts, leading to filing of this writ petition, are that one Fateh Muhammad, had filed a suit against his brethren, namely, Faqir Muhammad, Nazir Ahmad and Bashir Ahmad, and one Umar Din, seeking declaration from learned Civil Judge, Sadiqabad with regard to Mutation No. 472 dated 28.11.1974 and subsequent Mutation No. 5531 dated 11.4.1981, which was based upon a registered gift deed dated 26.1.1987, and as a consequential relief he had prayed for recovery of possession of lands measuring 57 kanals and 5 marlas, situated in Mouza Kot Jangu, Tehsil Sadiqabad. The suit was contested as defendants had filed written statement controverting the material facts entered in the plaint. Issues were framed and plaintiff had led his evidence. Upon defendant's turn, an application was filed by defendants/respondents that marginal witnesses of agreement to sell (Ex. D.1) upon which Mutation No. 472 was sanctioned on 26.11.1974 in favour of Khushi Muhammad, be appointed as Referees for the case and the suit be decided upon their statements. The Court issued notices to them, who refused to make any statement as Referee. Evidence of the plaintiff was closed on 20.4.1990. After that an application was moved by the above noted defendants/respondents for comparison of signatures of Muhammad Yousaf and Muhammad Shafi, attesting witnesses, and of Fateh Muhammad, plaintiff. Application was disallowed by learned Civil Judge on 9.9.1990 against which civil revision was filed by defendants/respondents before learned Addl. District Judge, who by accepting the civil revision dated 18.7.1992 directed the learned trial Court to obtain the specimen signatures/thumb impressions of executants as well as of the attesting witnesses and get it compared from Hand Writing Expert. Learned trial Court in compliance of that order passed on 18.7.1992, by learned Addl. District Judge, issued a notice to all these persons for their appearance in the Court but they did not turn up. Learned trial Court was thereafter compelled to issue bailable warrants against all these persons for 20.4.1993. Aggrieved from those orders dated 6.4.1993 for issuance of bailable warrants and 18.4.1992 for acceptance of application for comparison of signatures/thumb impressions passed by learned Additional District Judge, this writ petition has been filed.
Learned counsel for the petitioner submits that learned trial Court was not empowered to issue bailable warrants of the marginal witnesses of the document of Ex. D.1 (the disputed agreement to sell) under Sub-Article (2) of Article 84 of the Qanun-e-Shahadat Order, 1984 as the Court was not authorized or conferred with such power by the aforesaid Order. As per learned counsel, the Court may direct any person who is present in Court to write any words and figure for the purpose of comparison but cannot compel marginal witnesses and plaintiff to appear to get their thumb impressions or their signatures for comparison.
On the other hand, learned counsel for the respondents submits that learned trial Court had issued bailable warrants as the aforesaid marginal witnesses had not appeared and this power was granted and available to the aforesaid learned trial Court under Section 32 of the CPC. As the marginal witnesses had refused to entered into witnesses box to give the evidence, therefore this procedure was adopted. This writ is also not maintainable against order dated 18.7.1992 which was passed by learned Addl. District Judge because it was challenged after the passing of 9 months. No explanation as to the delay in filing of the writ petition has been given by the petitioner. He has referred to PLD 1978 Lahore 1459 (Muhammad Saeed vs. Secret-ul-Fatima etc.).
After considering the arguments of learned counsels for the parties and from the perusal of record, it appears that Sub Article(2) of Article 84 of the Qanun-e-Shahadat Order, 1984 has empowered the Court to direct any person present in the Court to write any words and figures for the purpose of enabling the Court to compare the words or figures so written with the disputed words/figures. From the above noted provision, I find that the Court has got the power to examine/compare itself or to get the document compared from any expert, and for that purpose, it can direct any person to write any words of figures. The Court can also issue notice/summons to the marginal witnesses for their presence for comparison of their signatures/thumb impressions. The power to summon the witness is not only inherent but is also allowed by Order XVI of the CPC to a Civil Court. If a Court is not considered to have been invested with this power, then no party can summon for any purpose in the Court any person. Summoning of parties/witnesses through the processes, provided is the basic power upon which the whole fabric of the trail of the suit is dependent. In case such power is not presumed to lie with the Court, the whole actions of the Court would become farcical. Therefore, the interpretation being put to the Article is devoid of any force. If a witness does not appear in spite of his service or refuses to appear in the Court, learned trial Court has got enough power to compel his attendance through modes prescribed by the Code. Section 32 of the CPC has empowered the Court to cause the attendance of any person in his Court to obtain his signatures for the purpose of comparison. Trial Court cannot issue notice but can also attach salary or property of such disobedient person who refuses to appear and can impose fine also. There is yet another provision of Section 94 of the CPC which has granted powers to the Court to pass any other interlocutory order when it considers just and convenient in a case in a given situation, particularly where law has not provided any of its solution. The Court, which is seized of the case, has to act for the smooth running and trial of a case for its conclusion. There is no prohibition to the Court, to pass such an order. Therefore, I do no see any reason to interfere into this order. So, the writ petition is dismissed with no order as to costs.
(A.A.) Petition dismissed
PLJ 2006 Lahore 91 (DB)
Present: Ch. Ijaz Ahmad & Muhammad Khalid Alvi, JJ.
WAPDA and another--Appellants
versus
M/s. GHULAM RASOOL & Co. (Pvt.) Ltd. through its MANAGING DIRECTOR--Respondent
R.F.A. No. 484 of 1999, heard on 28.4.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXIX, R. 1 & O. XIV, R. 1--Suit for recovery of specified amount--Preliminary objection raised by defendant in written statement that suit had not been competently instituted by plaintiff, was not framed by Court--Plaintiff had neither placed on record its memorandum and Articles of Association nor pleaded that Technical Advisor was duly authorized by company through resolution to institute suit, therefore, objection raised by defendant in its written statement regarding incompetent presentation of plaint did require framing of issue qua competency of person who had signed plaint on behalf of plaintiff company--Power of attorney in favour of person who had signed and verified plaint was not in accordance with law as the same was not based on any resolution adopted by company in accordance with its Memorandum and Articles of Association--Trial Court was thus, under duty and obligation to frame proper issues to resolve controversy between parties--Impugned judgment and decree was set aside and case was remanded to Trial Court allowing parties to adduce evidence only to extent of additional issue framed by the High Court and to decide the same afresh within specified time. [Pp. 94, 95 & 96] A, B & C
NLR 1983 UC 184; NLR 1993 UC 54; NLR 1991 AC 432; PLD 1986 SC 684; PLD 1971 SC 550; 1982 CLC 2575; PLD 1975 Karachi 327; PLD 1969 SC 278; PLD 1965 SC 690; PLD 1975 Lahore 7, ref.
Mr. Abdul Rehman Madni, Advocate for Appellants.
Mr. Muhammad Raza Qureshi, Advocate for Respondent.
Date of hearing : 28.4.2005.
Judgment
Ch. Ijaz Ahmad, J.--Brief facts out of which the present appeal arises are that respondent/plaintiff who is a private limited company filed a suit for recovery of Rs. 45,01,849/- plus mark up on this amount as well as on the amount of Rs. 16,41,562/- on account of delayed payment against the appellant in the Court of Civil Judge First Class Lahore on 8.9.94. The contents of the plaint reveal that the respondent-plaintiff was awarded the work of Construction of Structures on Mitha Tiwana Drain RD O + 000 to 201 + 050 Mohajir Branch Unit of Thal Canal SCARP. The contract was executed between the parties of value amounting to Rs. 2,95,54,775.00. The said work was executed and completed till 31.12.90. The respondent-plaintiff submitted two bill on escalation basis in terms of Clause 5(65) of the contract to the appellant-defendant. The contents of the plaint further reveal that the said bill were verified by the Project Director but in spite of repeated requests the said amount was not paid by the appellant-defendant on unjustified grounds. The defendant-appellant filed written statement controverted the allegations leveled in the plaint including preliminary objections raised by the appellant-defendant qua the maintainability of the suit on the ground that the suit has not been competently instituted on behalf of respondent/plaintiff company.
Out of the pleadings of the parties the learned trial Court framed the following issues:--
Whether the suit is not maintainable in its present form? OPD.
Whether the suit is time barred? OPD
Whether this Court lacks territorial jurisdiction to adjudicate upon this matter? OPD
Whether the plaintiff is entitled to a decree for recovery of dispute amount as claimed in the main suit? OPP
Relief.
The trial Court decreed the suit vide impugned judgment and decree dated 23.6.99. The appellant being aggrieved filed this appeal.
Learned counsel for the appellant submits that learned trial Court has not framed proper issues specially with respect to preliminary objection raised by the appellant-defendant in its written statement that the suit has not been competently instituted on behalf of the respondent-plaintiff company. He further submits that it is the duty of the trial Court to frame proper issue but the trial Court failed to perform its duty as it has not framed issue qua the competency of Muhammad Iqbal Qureshi to file the suit on behalf of the respondent-company. He further submits that no resolution of the company has been placed on record authorizing any person to verify and file the plaint on behalf of the company. Suit was not properly instituted, therefore, findings on the other issues have no relevancy unless and until the suit is properly instituted before the trial Court on behalf of the respondent-company. In support of his contention he relied upon PLD 1991 Lahore 381 (Premier Sugar Mills case).
Learned counsel for the respondent submits that issues were framed on 2.2.95. The appellant defendant did not raise any objection with regard to non-framing of issue as being now claimed. He further submits that this is mere irregularity, which can be cured at any stage even otherwise the Respondent-plaintiff has specifically mentioned and highlighted facts in para 1 of the plaint that Mr. Muhammad Iqbal Qureshi has been duly authorized to sign and verify the pleadings. Therefore, appellant is not within its right to raise this plea at such belated stage on the well known principle of estoppel and waiver.
We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record ourselves. It is better and appropriate to reproduce the relevant paragraphs of plaint, written statement, and Order XXIX Rule 1 Of the CPC to resolve the controversy between the parties.
Relevant Paragraph of Plaint.
Relevant paragraphs of written statement
Reply on merits of Para No. 1 The corporate status of the plaintiff and Defendant No. 1 is not denied. The answering defendants do not admit that Mr. Muhammad Qureshi has been competently authorized to sign and verify the pleadings or institute the suit.
Order XXIX Rule 1 CPC
Subscription and verification of pleading.--In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case.
The status of respondent/plaintiff as a private limited company is not disputed between the parties. Order XXIX Rule 1 CPC regulates the procedure of signing and verification of pleadings on behalf of the corporation. It postulates that three types of person can perform this act i.e. the Secretary, any Director or other Principal Officer of the Corporation. The present plaint filed by the respondent was signed and verified by Mr. Iqbal Qureshi as its Technical Advisor. Undoubtedly he was neither Secretary nor a Director of the respondent company. In the capacity of Technical Advisor whether he fell in the category of Principal Officer of the Corporation or not has not been adjudicated upon by the learned trial Court.
For valid institution/presentation of a plaint on behalf of a company/corporation two distinct authorities are required. First requirement is that it should be signed and verified by a person competent to do so. For this purpose Order XXIX Rule 1 provides the guide line as observed above. The second step is the requirement of authorization to institute suit on behalf of company to any person through a resolution adopted in a meeting held for the said purpose in accordance with its Memorandum and Articles of Association duly registered under Section 30 of the Companies Ordinance, 1984. A similar distinction in the above referred two steps was highlighted in NLR 1983 U.C. 184 in the following words:--
"The provisions of Order 29 Rule 1 CPC deal only with the subscription and verification of pleadings in suits by against the corporations. In other words, the rule merely authorized the persons mentioned therein to sign and verify pleadings on behalf of a corporation. The rule does not authorize such institute suit on behalf of the corporation. Substantial question in issue herein is whether Mr. Tarras was authorize by societe Dumes to institute the present suit. Therefore, merely because the person signing the plaint was Principal Officer of the company is not sufficient to establish that he has authority to bring the suits on behalf of the company".
Further reference can be made to NLR 1993 U.C. 54 (Millat Tractor Ltd. vs. Tawakal Ullah Chaudhary), NLR 1991 A.C. 432 (Millat Tractor Ltd. vs. Tawakal Ullah Chaudhary), PLD 1986 SC 684 (M. Siddique's case) PLD 1971 SC 550 (Iftikhar Hussain Khan of Mumdot's case), 1982 CLC 2575 (Phool Muhammad vs. Abdul Ghaffar) and PLD 1975 Karachi 327 Mushtaq Ahmad'.
The plaintiff/respondent has neither placed on record its Memorandum and Articles of Association nor has pleaded that Mr. Iqbal Qureshi was duly authorized by the company through a resolution to institute the present suit, therefore, the objection raised by the appellant in its written statement regarding incompetent presentation of plaint did require framing of an issue.
A private limited company is established by joining two or more persons to run a joint business in the name of a company by getting it registered under the Companies Ordinance, 1984. In this way, the private limited company acquires the status of a juristic person. The object of having an authorization of the company through a resolution for the institution of a suit is that all the share holders/directors are involved for taking a decision as to whether the company as a whole intends to institute legal proceedings or not. A Director or a Principal Officer of the company on his own without authorization of the company cannot take a decision for institution of a legal proceedings/suit. However for the purposes of signing and verification of pleadings such a person can act as permitted by Order XXIX Rule 1 CPC.
Mr. Muhammad Iqbal Qureshi while appearing as PW-1 stated that company had authorized him to institute the instant suit. He also submitted a special power of attorney Ex. P1 issued in his favour. Perusal of Ex. P1, indicates that this special power of attorney was executed by one Amanant Ali Khan, Chief Executive of the respondent in favour of Muhammad Iqbal Qureshi. This power of attorney is not in accordance with law as the same is not based on any resolution adopted by the company in accordance with its Memorandum and Articles of Association. This action is unilateral act on the part of the Chief Executive of the company. As against this, if there is resolution of the company which show the will and command of all the Members/Shares Holders/Directors of the company for the purposes of initiating a legal action. Meaning thereby that the company as a juristic person has expressed through resolution its willingness to reap the fruits of the legal action and also to face any adverse consequence thereof If any person associated with the company in any capacity files a suit without such authorization, the company as a juristic person can neither take advantage nor can suffer any consequence on account of such presented plaint, therefore, the same has to be termed as an incompetently presented suit.
In view of the aforesaid circumstances it was duty and obligation of the trial Court to frame proper issues to revolve the controversy between the parties but the trial Court has not framed proper issues with regard that the plaint has not been competently signed, verified and instituted on behalf of the respondent-plaintiff company. Therefore, finding on other issues are redundant because this is the basic issue qua the maintainability of the suit filed by the respondent-plaintiff company which is admittedly not framed by the trial Court as is evident from the issues framed by the trial Court reproduced above. It is settled principle of law that a Judge must wear all the laws of the country on the sleeve of his robe. Any failure of the counsel to properly advise him is not a complete excuse in the matter as the law laid down in Muhammad Sarwar's case (PLD 1969 SC 278). It is also settled principle of law that question of law on the basis of provision of law can be raised at any stage as law laid down by the Hon'ble Supreme Court in PLD 1965 SC 690 (Haji Abdullah Khan's case). It is also settled principle of law that nobody should be prejudiced by the act of the Court as the law laid down by this Court in Mian Irshad Ali's case (PLD 1975 Lahore 7). It is an omission of the Court, not to frame proper issues, therefore, parties were not properly put to notice to produce their evidence in terms of the issues framed by the Court, therefore, we set-aside the impugned judgment and decree and remand the case to the trial Court after framing the following additional issue:
"Whether Mr. Muhammad Iqbal was lawfully authorized to sign and verify the plaint and whether he was competently authorized by the company to institute the suit, if not, its effect? OPP.
The parties are directed to appear before the Senior Civil Judge concerned on 10.5.05 who is directed either to hear the case himself or entrust the same to any competent Court to allow the parties to adduce evidence only to the extent of additional issue. Then decide the case afresh in accordance with law within four month seven at the cost of day-to-day proceedings. The trial Court shall of course decide the case in accordance with law after recording evidence, without being influenced by the observation of this Courts.
(A.A.) Case remanded.
PLJ 2006 Lahore 96 (DB)
[Multan Bench Multan]
Present: Fazal-e-Miran Chauhan and Sh. Javaid Sarfraz, JJ.
MUHAMMAD MAJID (deceased) through His Legal Representatives--Petitioners
versus
UNITED BANK LTD., MULTAN--Respondent
W.P. No. 1941 of 2003, decided on 21.3.2005.
Civil Procedure Code, 1908 (V of 1908)--
----S. 47--Constitution of Pakistan (1973), Art. 199--Payment of decretal amount was to be made in installments as per order of Court--First installment was made within target date--Remaining instalments were not paid in time, however, petitioners paid entire decretal amount after target date set by Court for payment of last installment--Failure to pay two remaining installments rendered petitioners liable to pay mark up on remaining balance of decretal amount--Respondents claimed mark up at stipulated rate on entire decretal amount from date of decree till its realization--Such claim/demand was incorrect and against terms of judgment and decree--Other ground raised by petitioners that after receiving entire amount, respondent issued statement of accounts, showing balance as nil against petitioners, therefore, respondent was estopped by its conduct to claim any mark up from petitioners has no force in as much as, petitioners having failed to deposit second and third installments on target dates, had rendered themselves liable to pay mark up on remaining decretal amount till realization thereof--Statement of accounts allegedly issued by respondent was of no help to petitioners--Writ petition was partly allowed holding that petitioners were liable to pay mark up on remaining balance and not on entire decretal amount. [Pp. 99 & 100] A & B
Mian Irshad Ali Qureshi, Advocate for Petitioners.
Mr. Abdul Majid Malik, Advocate for Respondent.
Date of hearing : 3.3.2005.
Judgment
Fazal-e-Miran Chowhan, J.--The petitioners, who are legal heirs of Late Muhammad Majid, who was loanee of United Bank Ltd. Respondent bank had challenged the impugned order dated 17.3.2003 of the Judge Banking Court No. 3, Multan vide which objection petition filed by the petitioners was dismissed.
The decree holder bank on 16.8.2001 filed execution for recovery of Rs. 2,05,191/-. In the said execution application admitted receipt of Rs. 8,05,991/-. As per execution application a total sum of Rs. 10,11,142/- was calculated, as outstanding amount from which amount received as Rs. 8,05,991/-, was deducted and demand Rs. 2,05,151/- due from the judgment debtors as mark up due on the amount paid.
The petitioners judgment debtors filed objections before the Banking Court No. 3, Multan to the effect that they had paid the entire suit amount of Rs. 8,00,000/- with cost by 29.11.2000 and a statement of accounts showing nil as balance was issued by the bank. Nothing is due as per statement of accounts against the petitioners, and it was only on the demand of title documents of the mortgaged property by the petitioners, the bank on 16.8.2001 almost after nine months of receiving the total amount filed the execution application by calculating mark up of Rs. 2,05,404/- from the date of decree till filing of the execution application. The decree holder bank at the most could charge mark up from 29.6.1999 on the remaining balance amount and not beyond that.
The learned Judge Banking Court No. 3, Multan, dismissed the objections filed by the petitioners without framing issues, recording evidence and holding inquiry on the objections. Hence this writ petition.
It is argued by learned counsel for the petitioners that the learned Judge Banking Court No. 3, Multan passed the impugned order in sheer violation of law, equity and principle of natural justice. The respondent, decree holder bank, having received the entire suit amount and cost of the suit i.e. Rs. 8,05,991/- from the petitioners, without, raising and objection to the late payment are estopped by their conduct for raising objections and claiming mark up from the date of decree, till realization of the decretal amount. The respondent bank also issued a statement of accounts showing balance as nil. It is further argued that at the most the decree hold bank could claim mark up on the balance remaining amount from 28.6.1999 to 29.11.2000 at the stipulated rate which comes to Rs. 54,628.77.
Learned counsel appearing on behalf of the respondent bank argued that the judgment debtors petitioners failed to live up to their commitment and failed to deposit 25% of the remaining amount by 28.6.1999, resultantly the entire remaining amount become due and the decree holder bank if entitled to recover the same with mark up from the date of decree till its realization. He further argued that word amount used in the judgment means the decretal amount and the bank has rightly calculated mark up from the date of decree till realization on the decretal amount. He also challenged the genuineness of the statement of accounts attached with the writ petition as Annexure F.
We heard learned counsel for the parties at some length, perused documents annexed with the writ petition. Our findings on the issues raised in the writ petition are as under:--
The petitioners/defendants being orphans and widow of the original loanee adopted a responsible and respectful attitude by conceding and agreed to pay the suit amount in three installments, if liquidated damages and other accessory expenses are set aside. The Judge Banking Court No. 3 Multan decreed the suit allowing the petitioners to pay the suit amount with cost of Court fee if, they paid « of the decretal amount i.e. Rs. 8,00,000/- till 28.12.1998 and ¬ of the remaining amount by 28.6.1999 and the remaining balance till 28.12.1999. It was further observed, that if the judgment debtors failed to pay any one of the installment in time, the remaining balance shall become recoverable forthwith through process of execution with mark up till its realization. It is admitted position that the petitioners paid Rs. 4,00,000/- i.e. « of the decretal amount on 23.9.1998 within the target date. The remaining installments were not paid in time, as ordered by the Judge Banking Court No. 3, Multan. The petitioners, however, were able to pay the entire decretal amount on 29.11.2000 and a statement of accounts showing a balance of nil was issued by the respondent bank, photo copy of which is annexed with this writ petition. The petitioners having not lived up to their promise, failed to pay the two remaining installments in time, rendered themselves liable to pay mark up on the remaining balance i.e. Rs. 4,05,891/- of the decretal amount. The petitioners' case with the demand of respondent bank to calculate mark up at the stipulated rate on the entire decretal amount from the date of decree till its realization, is incorrect and is against the terms of judgment and decree dated 30.9.1998. The words used in the judgment and decree dated 30.9.1998 by the Judge Banking Court No. 3, Multan, are that "if the judgment debtors failed in the above quoted schedule in any one of the installments, the entire remaining amount shall be recoverable forthwith through process of execution i.e. sale of mortgaged property, detention etc. etc. And in that event, the amount shall be recoverable with mark up, to the date of realization". The word `amount' used in the latter part of order qualifies the word used as "the entire remaining amount" and not the entire decretal amount.
Similarly the decree which was prepared in the light of the judgment says (if the defendants fail to comply with the above quoted schedule, the entire remaining balance shall be recoverable forthwith alongwith mark up, to the date of realization) Here in the decree again it was clarified that, in case of default, the decree holder bank would be entitled to recover the entire remaining balance with mark up and not entire decretal amount. The decree holder bank, wrongly calculated mark up on the entire decretal amount, from the date of decree. It was only on 28.6.1999, when petitioners defaulted to pay ¬ of the remaining balance, the whole remaining amount became due authorizing the decree holder bank to recover the same with mark up. As is obvious from the judgment and decree, the mark up is to be calculated from the date, when the remaining balance becomes due, and not from the date, when the decree was passed. Here in this case, as per judgment and decree, the remaining balance becomes due on 28.6.1999, when ¬ of the remaining decretal amount was to be deposited. The mark up on the remaining balance calculated by the petitioners is Rs. 54,628.77 and not 2,05,404/- as calculated by the decree holder bank on the entire decretal amount from 30.9.1998 onward. The respondent bank has not placed any document showing the correct position of the judgment debtors' account. No statement of accounts duly verified has been placed on the record.
The other ground raised by the petitioners to the effect that after receiving the entire decretal amount by 29.11.2000, the respondent bank issued a statement of accounts, showing balance as nil against the petitioners. Hence the respondent bank is estopped by their conduct to claim any mark up from the petitioners. This argument raised by the petitioners has no force, as the petitioners having failed to deposit the second installment by 28.6.1999 had rendered themselves liable to pay mark up on the remaining decretal amount till its realization. The statement of accounts allegedly issued by bank is of no help to the petitioners.
For the foregoing reasons, we partly allow this writ petition holding that the petitioners are liable to pay mark up on the remaining balance of the decretal amount from 28.6.1999 till its realization and not on the entire decretal amount from 30.9.1998 till its realization. The claim of respondent bank to this effect is set aside and it is declared that the respondent bank can claim simple mark up on the remaining balance i.e. Rs. 4,05,991/- from 28.6.1999 till its realization.
(A.A.) Order accordingly.
PLJ 2006 Lahore 100
Present : Ch. Ijaz Ahmad, J.
JAMAL DIN--Petitioner
versus
SYED ALTAF HUSSAIN SHAH and 14 others--Respondents
C.R. No. 1034 of 1994, heard on 5.5.2005.
(i) Transfer of Property Act, 1882 (II of 1882)--
----S. 53-A--Civil Procedure Code (V of 1908), S. 115--Agreement to sell--Validity--Person holding general power of attorney on behalf of owner of property--Agent of general attorney executing agreement to sell in favour of petitioner. Agent of attorney was not attorney of owner--Any agreement to sell executed by such agent was not binding on original owner on general attorney even if he was proved to be agent of general attorney--However agent of general attorney had refuted petitioners assertion that he had executed any document in favour of petitioner or sold him property in question--Petitioners being beneficiaries of agreement to sell, they had to prove agreement to sell but could not prove that duly authorized agent of original owner had executed such agreements in their favour--Concurrent findings of Courts below that agent of attorney had no power to sell property in question was not open to interference and the same were maintained. [Pp. 105 & 106] A
(ii) Specified Relief Act, 1877 (I of 1877)--
----S. 12--Suit for specific performance of agreement to sell--Relief claimed in such suit being discretionary, both Courts below had refused to grant such relief to petitioners after judicial application of mind, thus, no interference was warranted in such finding. [P. 106] B
(iii) Principal and Agent--
----Creation of agency--Proof--Once agency was created in favour of any person which showed complete trust by principal, qua agent, each word of agency is to be construed strictly and also to be the strictly proved--Where general power of attorney does contain any specified authority empowering general attorney to delegate his power to any other persons, sale by that person would be void. [P. 106] C
(iv) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Specific Relief Act (I of 1877), S. 12--Revisional jurisdiction--Petitioners were required to place before revisional Court copies of all those documents which they had placed before trial Court in terms of Section 115 C.P.C.--Basic document in present case being general power of attorney executed by original owner in favour of general attorney, which is material document to determine whether original owner had authorities general attorney to appoint any agent for sale of property in question--Such document having not been produced before lower Courts as also before High Court, agents authority to sell property in question, was of the consequence--Courts below on basis of evidence, on record had concurrently found that petitioners were not entitled to discretionary relief--Such finding of Courts below being which and legal does not call for interference. [Pp. 106 & 107] D
NLR 1987 Civil 798; 2003 SCMR 286; PLD 1962 Dacca 655; NLR 1995 CLJ 227 and NLR 1989 App. Cases 857 ref.
S.M. Mohsin Zaidi, Advocate for Petitioner.
Mr. Muhammad Sarwar Awan, Advocate for Respondents.
Date of hearing : 5.5.2005.
Judgment
I intend to decide the following revision petitions by one consolidated judgment having similar facts and law:-
C.R. No. 1034/94.
C.R. No. 1035/94
C.R. No. 3346/94
The brief facts out of which C.R. No. 1035/94 arises are that land in question was originally owned by late Mst. Zubaida Khatoon who appointed Syed Fayyaz Miran as her general attorney through general power of attorney duly executed and registered in his name on 15.8.1967. The said attorney allegedly executed an agreement dated 7.5.1980 in favour of Malik Muhammad Akbar Respondent/Defendant No. 1 authorizing him to sell the suit property. Subsequently, another agreement of the same nature with time limit was substituted on 20.5.1980. After its expiry he executed another agreement on 21.12.1980 in favour of Respondent/Defendant No. 1 authorizing him to sell the pot in question. On the basis of this agreement Respondent/ Defendant No. 1 executed aforesaid agreement to sell dated 30.7.1983 in favour of the petitioner/plaintiff to enter into agreement who executed agreement to sell in favour of Jamal Din on 30.7.1983. According to terms of the agreement to sell total consideration was fixed as Rs. 55,140/- out of which Rs. 50,000/- was paid. Possession of the land in question was given to Jamal Din plaintiff/petitioner. The agreement to sell was witnesses by Subedar Major Muhammad Sharif (PW.1) and Miraj Din (PW.2). The said Malik Akbar failed to get the sale-deed completed in terms of the agreement. Jamal Din being aggrieved filed suit for specific performance in the Court of Civil Judge Ist Class, Lahore.
The brief facts out of which C.R. No. 1034/94 arises are that the original owner also gifted land measuring 1 Kanal 16 Marlas and 195 Sq. ft. through registered deed dated 22.5.1984 in favour of Syed Altaf Hussian Shah. Syed Altaf Hussain Shah also filed a suit for possession.
Both the above suits were consolidated vide order dated 10.6.1992. The parties filed written statements. Out of pleadings of the parties trial Court framed the following issues:--
Whether the suit is not maintainable in its present form ? OPD
Whether the suit is bad for non-joinder and mis-joinder of parties ? OPD.
Whether the plaintiff has no locus-standi and cause of action to bring the present suit ? OPD.
Whether the suit has not been correctly valued for the purpose of Court-fee and jurisdiction ? If so, its effect OPD.
Whether the plaintiff is owner in possession of the disputed property ? OPP.
5-A. Whether the suit filed by Jamal Din is barred by time ? OPP.
5-B. Whether the agreement to sell dated 30.7.83 is forged and fictitious? OPP.
5-C Whether the plaintiff Jamal Din is entitled to the decree for specific performance of the contract as prayed for in view of the averments made in the plaint ? OPD.
The trial Court dismissed the suit of Jamal Din and decreed the suit of Syed Altaf Hussain. The petitioner being aggrieved filed two appeals in the Court of Addl. District Judge, Lahore who dismissed the same vide impugned judgment dated 8.2.1994. Hence the present C.R. No. 1034/94 and 1035/94.
The brief facts out of which C.R. No. 3346/94 arises are that plot in question was owned by late Mst. Zubaida Khatoon Defendant No. 2/Respondent No. 2 who appointed her son Syed Fayyaz Miran Gillani Respondent No. 3/Defendant No. 3 as her general attorney in order to sell her property situated in Khasra No. 943. Respondent No. 3/Defendant No. 3 appointed Respondent No. 1 Muhammad Akbar as his agent for the purpose of sale of said property who accordingly executed agreement to sell dated 30.7.1983. Prior to that the said attorney allegedly executed an agreement dated 7.5.1980 in favour of Malik Muhammad Akbar Respondent/Defendant No. 1 authorizing him to sell the suit property. Subsequently, another agreement of the same nature with time limit was substituted on 20.5.1980. After its expiry he executed another agreement on 21.12.1980 in favour of Respondent/Defendant No. 1 authorizing him to sell the plot in question. On the basis of this agreement Respondent No. 1/Defendant No. 1 executed aforesaid agreement to sell dated 30.7.1983 in favour of the petitioner/plaintiff. According to the terms of the agreement total consideration was fixed as Rs. 62,000/- out of which Muhammad Shafiq had paid Rs. 20,000/- and possession of the property was delivered to him on 18.10.1988. Respondent No. 4 has taken possession of the plot in question forcibly from the petitioner on 18.10.1988. The petitioner being aggrieved filed suit for specific performance of agreement dated 30.7.1983. Respondents Nos. 2 to 4 filed written statement, controverted the allegations leveled in the plaint. Out of pleadings of the parties the trial Court framed the following issues:--
Whether an agreement to sell was executed between the parties ? OPP.
If Issue No. 1 is proved whether the plaintiff is entitled for specific performance of the contract ? OPP.
Whether gift deed registered on 22.5.1984 in favour of defendant is illegal void ? OPP.
Whether the plaintiff has no cause of action ? OPD
Whether this suit is malafide and has been filed as counter-blast ? OPD
Whether the suit is not properly valued for the purposes of court fee, if so its effect ? OPD.
Whether the suit is barred by law of limitation ? OPD
Whether the suit is collusive ? OPD
Whether the suit is bad for mis-joinder of parties ? OPD
Relief.
The trail Court dismissed the suit vide impugned judgment and decree dated 5.4.1993. The petitioner being aggrieved filed appeal in the Court of Addl. District Judge who dismissed the same vide impugned judgment and decree dated 8.2.1994. Hence the present C.R. No. 3346/94.
Learned counsel of the petitioners submits that Malik Muhammad Akbar was agent appointed by Fayyaz Miran general attorney of original owner late Mst. Zubaidar Khatoon. The possession of the land in question was handed over to Jamal Din and Muhammad Shafiq Butt. Malik Muhammad Akbar did not appear in witness box in spite of the fact that petitioners have impleaded him as defendant/respondent in their suits, appeals and revision petitions. Malik Muhammad Akbar denied his authorization in his written statement but he did not enter appearance in the witness box. Therefore, adverse inference can be drawn against him. In support of his contention he relied upon Abdul Khaliq Qureshi Versus Anis Ahmad (NLR 1987 Civil 798). He further submits that gift was not properly executed in favour of Altaf Hussian as possession of the property in question was not handed over to him as possession of the land in question is with Muhammad Shafiq Butt and Jamal Din. Therefore, there is no valid gift in favour of Altaf Hussain by the original owner. In support of his contention he relied upon Muhammad Bakhsh Versus Ellahi Bakhsh (2003 SCMR 286).
Learned counsel of the respondents submits that it is not requirement of law to hand over physical possession by the donor in case the donor is not in possession of the land in view of para-152 of Mohammaden Law. He further submits that both the Courts below have given concurrent finding of fact against the petitioners. Therefore, revision petitions are liable to be dismissed. He further submits that petitioners failed to bring on record any authorization in favour of Malik Muhammad Akbar. Therefore, both the Courts below were justified to dismiss the suit of the petitioners Muhammad Shafiq and Jamal Din.
I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
It is better and appropriate to reproduce basic facts in chronological order to resolve the controversy between the parties:--
(i) The original owner late Mst. Zubaida Khantoon Respondent No. 2 appointed her son Syed Fayyaz Miran Gillani Respondent No. 3 as her general attorney for the purpose to sell her property in question. Respondent No. 3 appointed Respondent No. 1 Malik Muhammad Akbar as his agent vide agreement dated 7.5.1980 according to which Respondent No. 1 has to arrange bargain qua the land in question as agent/broker who could only receive token amount whereas the sale consideration has to be received by Syed Fayyaz Miran Gillani himself. This agreement was substituted by said attorney of the original owner in favour of Respondent No. 1 Malik Muhammad Akbar alongwith Sajjad Hussain and Abdul Majeed on 20.5.1980 authorizing them to arrange a bargain of property in question within a period of 2 months after executed of the agreement after completing the legal formalities.
(ii) Thereafter another agreement was allegedly executed by said attorney of the original owner in favour of Respondent No. 1/Defendant No. 1 on 21.12.1980. It is pertinent to mention here that this agreement was not produced on record.
(iii) Respondent No. 1/Defendant No. 1 entered into agreements for sale of respective plots in favour of the petitioner on 30.7.1983. He also received major part of the consideration from the petitioners.
(iv) Jamal Din petitioner also filed suit for permanent injunction against WAPDA authorities wherein he took a stand that he purchased the property in question from Respondent No. 3 Syed Fayyaz Miran Gillani and did not mention a single word about purchase of the property from Malik Muhammad Akbar. In case the aforesaid facts are put in a juxta position then it is crystal clear that Respondent No. 1 was not agent of the attorney of the original owner or the original owner at the relevant time. Therefore, any agreement executed by the petitioner with Respondent No. 1 Malik Muhammad Akbar has no binding force upon the general attorney of the original owner as well as the original owner. It is pertinent to mention here that witnesses Muhammad Sharif and Meraj Din admitted in their statements that they did not have seen authorization in favour of Malik Muhammad Akbar by Syed Fayyaz Miran Gillani who had orally mentioned to them that he was authorised by said attorney to sell the property in question.
There is no doubt that Malik Muhammad Akbar Respondent No. 1 did not appear as a witness in the present case but he filed written statement and controverted the allegations leveled by the petitioners in the contents of the plaint to the extent that he had not executed agreements dated 30.7.1983 in favour of the petitioners Jamal Din and Muhammad Shafiq Butt respectively. The petitioners are beneficiaries of the agreements to sell, therefore, it was their duty to prove that the agreements were executed in favour of the petitioners by Malik Muhammad Akbar duly authorized agent of general attorney of the original owner. Both the Courts below have given concurrent finding of fact that Malik Muhammad Akbar has no lawful authority to execute agreements to sell in question on behalf of the general attorney of original owner. Therefore, findings of the Courts below in the suits and appeals filed by Muhammad Shafiq Butt and Jamal Din for specific performance of agreements to sell dated 30.7.1983 are upheld. It is also settled principle of law that it is discretionary relief. Both the Courts below have refused to grant discretionary relief to the petitioners after judicial application of mind which is in consonance with the law laid down in Nawab Meah Chowdhary Vs. Syed Ezaz-ud-Din Ahmad (PLD 1962 Dacca 655). It is also settled principle of law that once the agency is created in favour of any person which shows complete trust by the principal qua the agent, each word of the agency is to be construed strictly and also to be strictly proved. In arriving to this conclusion I am fortified by the law laid down in Haji Mitha Khan's case (NLR 1995 CLJ 227). It is also settled principle of law that in case the general power of attorney does not contain any specific authority empowering the general attorney to delegate his power to any other person, sale by that person would be void. Therefore, in the present case even if general attorney has executed authority in favour of Respondent No. 1 the same is void. In arriving to this conclusion I am fortified by the law laid down by the Division Bench of Karachi High Court in Gulfam etc. Vs. Ali Muhammad etc. (NLR 1989 Appeal cases 857). In the present case there is another important aspect of the matter that it is settled proposition of law that it is the duty and obligation of the petitioners to place on record copies of the documents which are before the Courts below in view of Section 115 CPC. The basic document in this case is general power of attorney executed by original owner late Mst. Zubaida Khatoon in favour of her son Syed Fayyaz Miran Gillani on 15.8.1967 which is a material document to determine whether Syed Fayyaz Miran Gillani was authorized by the original owner to appoint any agent for the purpose of selling the property in question. This document was not produced by the petitioners before the lower Courts and they also did not attach the same with the revision petitions.
In view of what has been discussed above, there is no illegality or irregularity in the impugned judgments of both the Courts below. All the three revision petitions have no merit and the same are dismissed.
(A.A.) Revision dismissed.
PLJ 2006 Lahore 107 [Rawalpindi Bench Rawalpindi]
Present: Abdul Shakoor Paracha, J.
AMIR AKBAR KHAN--Petitioner
versus
IRSHAD AHMAD KHOKHAR and 5 others--Respondents
Writ Petition No. 676 of 2005, decided on 14.6.2005..
(i) Islamabad Rent Restriction Ordinance, 2001 (IV of 2001)--
----S. 17 read with Ss. 1(2) & 2-K--Ejectment Petition--Maintainability of--Objection that no notices were issued by Federal Govt. under Section 1(2) & 2-K--Held: Such objection was not tenable as it had not been raised before Rent Controller, Appellate Court or High Court in first round of Litigation--Moreover such notices had already been issued through Notification No. SRO 83(Re)/02 dated 19.2.02 but that fact could not be brought in the notice of High Court in another Writ Petition Judgment of which was so not to be relief upon objection as to maintainability was turned down. [P. 109] A
(ii) Islamabad Rent Restriction Ordinance, 2001 (IV of 2001)--
----S. 17--Ejectment Petition--Bona fide personal need--Held: Ejectment of tenant on ground of bona fide personal need of the landlord could to be refused when his statement was consistent to the averments in ejectment petition & not shaken in cross-examination or disproved in rebuttal by tenant--Record showed that landlord had 5 daughters and had no other commercial property--His temporary job waiting vacation of disputed shops in order to meet both ends of life was neither illegal nor negatively reflected on his personal requirement. [Pp. 110 & 111] B, C & D
(iii) Islamabad Rent Restriction Ordinance, 2001 (IV of 2001)--
----S. 17--Ejectment petition--Bona fide personal need--Held: Failure of landlord to give details of the business to be started in the shops needed by him, his experience in the business and disclosure of funds in this behalf were neither relevant factors nor these furnished a concrete basis for his exclusion to utilize his own property. [P. 111] E
1987 SCMR 307; 2003 CLC 1819; PLD 1986 Kar. 16; 2000 SCJ 306; PLD 1976 Kar. 832 and NLR 1997 Civ. 706 ref.
Mr. Zaheer Bashir Ansari, Advocate for Petitioner.
Mr. Hassan Ahmad Khan Kanwar, Advocate for Respondents.
Date of hearing: 2.6.2005.
Judgment
Amir Akbar Khan son of Gul Mir Khan, tenant occupant of Shops Nos. 3 & 4, Farrukh Plaza, Block No. 27-A, G-9 Markaz, Islamabad, impugns the judgment dated 16.02.2005 passed by learned Addl. District Judge, Islamabad, whereby appeal against the order dated 06.10.2003 of the learned Rent Controller dismissing the ejectment petition has been accepted. The eviction petition filed by respondent Irshad Ahmed Khokhar has been accepted and the petitioner has been directed to vacate the disputed property.
Brief facts of the case are that irshad Ahmed Khokhar respondent initially filed a suit for ejectment and possession against Aamir Akber Khan, Taj Muhammad Khan and Saleem Akhtar in respect of Shops Nos. 3 & 4 alongwith basement (3 & 4). The said suit was withdrawn and thereafter ejectment petition was filed on the promulgation of Islamabad Rent Restriction Ordinance, 2001. Respondent sought ejectment of the petitioner alongwith performa respondents on the ground of personal bona fide need, default, sub-leasing and damage to the property. The petition was resisted by filing written reply of the ejectment petition. Learned Rent Controller framed the issued and by order dated 06.10.2003 dismissed the ejectment petition of the respondent vide order dated 06.10.2003. Appeal filed against the said order was also dismissed on 12.02.2004 by the learned Addl. District Judge, Islamabad. Respondent Irshad Ahmad Khokhar filed Writ Petition No. 1107/2004 in this Court which was accepted vide order dated 16.09.2004. Consequently, both the orders aforesaid were set at naught and the case was remanded to the learned Addl. District Judge, Islamabad, to decide the appeal afresh without being influenced by any observation in the order passed by this Court.
On remand, learned Addl. District Judge, Islamabad, accepted the appeal filed by Respondent No. 1 Irshad Ahmad Khokhar vide his order dated 16.02.2005 and had directed the petitioner to vacate the said property within one month from the date of decision, hence this writ petition.
Learned counsel for petitioner contends that Islamabad Rent Restrict Ordinance, 2001 was published in the Gazette on 23.01.2001 two notifications under the Ordinance were required to be published by the Federal Government under Section 1(2) and Section 2-K of the Ordinance ibid regarding such buildings and rented lands in Islamabad Capital Territory to which the Ordinance would extent and urban area was to be defined under the Ordinance was to be notified by the Federal Government. According to the learned counsel since no notification was issued, therefore, on the mandate of order passed by this Court in Writ Petition No. 346 of 2004 the date of commencement of Ordinance was 30.06.2004 when the writ petition was decided. Since no notice terminating the tenancy was issued, therefore, ejectment petition filed by the respondent Irshad Ahmad Khokhar was infructuous from its inception as no Ordinance was in the filed when the ejetment petition was filed.
Ground of non-maintainability of the ejectment petition on the ground that two statutory notices are required under Section 1(2) and 2(K) of the Ordinance ibid declaring such buildings and rented lands in Islamabad Capital Territory to which the Ordinance would extend and whereby urban area within the meaning as defined under the Ordinance was to be notified and is not available to the petitioner on two grounds. Firstly, this point was not raised before the trial Court or the Court of appeal or before this Court in first round of litigation therefore the petitioner is stopped by his conduct to raise this point for the first time. Secondly, while deciding Writ Petition No. 346 of 2004, notification SRO 83(Re)/02 dated 19.07.2002 published in Gazette of Pakistan Extraordinary on 01.08.2002 which was issued in terms of said provisions of Islamabad Rent Restriction Ordinance, 2001 was not brought in the notice of this Court. The above point of the learned counsel regarding statutory notification dated 19.07.2002, maintainability of ejectment petition and jurisdiction of the Rent Controller came up for consideration before this Court in case reported as Raja Hassan Ali Khan versus Additional District Judge, Islamabad and 2 others (2003 CLC 1819) and it was observed that, "A reading of the table appended to the said notification, dated 01.08.2002 leaves no manner of doubt that the properties are located in area which stands specified in the said notification to be urban area for the purpose of Islamabad Rent Restriction Ordinance, 2001. It is true that when petition in both cases were filed, the said notification has not been published. However, to my mind, nothing turns on the said plank in favour of the petitioners as under Section 1(3) said Ordinance shall come into force at once. The urban area was of course to be specified which stand so specified in terms of Section 1(2) read with Section 2(k) of the said Ordinance, 2001. I may note here that there is no allegation or objection that the learned Rent Controller who took cognizance of the matter was not validly appointed in terms of Section 7 of the said Ordinance, 2001. This being so, institution of the applications in the Court of learned Rent Controller being in accord with Section 7(3) of the said Ordinance, 2001, the same cannot be said to be without lawful authority." Further contends that the petitioner entered into the possession of the shop by putting considerable amount as "pagri" and thus provision of Islamabad Rent Restriction Ordinance, 2001 cannot be utilized to the benefit of landlord. Reference is made to the case reported as Muhammad Hanif versus Mumtaz Ahmad (PLD 1986 Karachi 16). It was also argued that had the need of the petitioner being bona fide. He should have prayed for possession of one shop but he instead prayed for ejectment of both the shops, which negatively reflect on his bona fides. Further argues that the petitioner has not disclosed the business which he intends to start, without showing his experience therein and has not stated that he has funds to do his own business; further that there was no violation of any agreement and denied the default in payment of monthly rent and damage to the property or impairment of its utility.
On the other hand, learned counsel for respondents contends that bona fide personal need of the Respondent regarding shops in question was proved on the file and therefore ejectment order has rightly been passed by the learned Addl. District Judge; possession of the shop by Respondent Nos. 2 to 4 has not been denied by them which has been attempted to be explained as of brothers and an employee but there is not an iota of evidence on the file to substantiate this defense plea. It has been proved on the file that shops was sub-letted; further contends that Respondent No. 1 committed willful default in payment of agreement monthly rent including the 10 percent increase after two years, besides non-compliance of orders of the learned Rent Controller under Section 17(9) of the Ordinance 2001. It was further contended that the petitioner has admitted the impairment of utility of the property. This being so, arguments of the learned counsel that ejectment petition was not maintainable in repealed.
Before I proceed to discuss the issue of sub-letting of property violation of terms of agreement and that the respondents have committed default and that the fact of receiving of "Pagri" of Rs. 6,50,000/-, I advert to the question of bona fide need of the demise property. Law regarding bona fide personal need of the landlord to occupy the rent premises for his own business for the use of the children is that ejectment of the tenant on the ground of bona fide personal need of the landlord cannot be refused when statement of the landlord on that is consistent to his averments in the ejectment petition and not shaken in cross-examination or disproved in rebuttal by the tenant. In case reported as Muhammad Shoaib Alam and others versus Muhammad Iqbal (2000 SCJ 306) the Hon'ble Supreme Court while deciding the question of bona fide of personal requirement held, that, "statement of landlord on oath if consistent and not shaken in cross examination or disproved in rebuttal is sufficient to prove that requirement of landlord was bona fide." It has been held in case reported as Hassan Khan versus Mrs. Munawar Begum (PLD 1976 Karachi 832) that, "assertion or claim on oath by landlord that he required premises for his personal use found to be consistent with his averments in his application and not shaken in cross-examination or disproved in rebuttal. To be accepted by Rent Controller as bona fide." On the touch stone of the above said case laws, I have examined the ejectment petition and the statement of Respondent No. 1 Irshad Ahmad Khokhar as AW-1. Record reveals that the respondents-petitioners are in possession of the demise property since 1989. Respondent Irshad Ahmad Khokhar during this period was abroad and the affairs of the shop was looked after by his father in law being a special attorney. He filed ejectment petition and meanwhile he joined the temporary job. He had stated that he had returned from Saudi Arabia in July, 1999 and gone through a surgical operation. Having five daughters, he had no other commercial property. He deposed in cross-examination that he is doing a temporary employment with M/s. Rafan Food Products. Petitioner was cross-examined at length but his case in the ejectment petition and his statement as AW-1 are absolutely in-consistent with each other. Temporary job by the landlord, waiting vocation of the shops needed by him, in order to meet both ends of life, is neither illegal nor it negatively reflects on his personal requirement. Moreoever, he has produced the termination letter Ex. A/2, though during his statement in rebuttal yet the same lends support to his stance already taken by him. Therefore, learned Addl. District Judge was right in recording the finding on issue of personal bona fide need of the demise premises in favour of the respondent and no exception can be taken to it. Failure of landlord to give details of the business to be started in the shops needed by him, his experience in the business and disclosure of funds in this behalf were neither relevant factors nor these furnished a concrete basis for his exclusion to utilize his own property. Reference can be made to case reported as Muhammad Ramzan versus Mian Muhammad Shahbaz Ranjha (NLR 1997 Civil 706). No doubt in the ejectment petition petitioner has not asserted that part of shop is required for his daughter who is doing her M.B.B.S. but it might be that at the time of filing ejectment petition, the shop was not required for utilization by the daughter of the landlord who had at that time doing M.B.B.S. but at the time his entering in the witness box this plea of the petitioner of utilization of part of the shops by his daughter might have arisen and it may be an additional ground for eviction of the respondents but it too did not negate his bona fide personal need. Further more, protection has been given to the tenant under Section 17(6) of the Ordinance, 2001 to move for re-occupation of the rented premises in case landlord fails to occupy it for his use. In this view of the matter, finding of the learned Addl. District Judge on the issue of personal bona fide need of demise premises does not call for any interference and is maintained.
Learned counsel for petitioner contends that he entered into possession of the shops by paying a considerable amount as "Pagri" and thus provisions of Islamabad Rent Restriction Ordinance, 2001 cannot be utilized to the benefits of landlord. He relies on the case reported as Muhammad Hanif versus Mumtaz Ahmad (PLD 1986 Karachi 16). Firstly, it has not been proved on the record that the petitioner has paid an amount of Rs. 6,50,000/- as "Pagri" to the respondent landlord. Section 6 of the Islamabad Rent Restriction Ordinance, 2001 contemplates that landlord not to claim in excess of fair rent. In case reported as Muhammad Hanif (PLD 1986 Karachi 16) Supra agreement between the land and tenant was executed indefinite period. Such agreement also providing that lessor would not eject lessee under any circumstances. Therefore, High Court Karachi held that such clauses of agreement relating to duration of tenancy and limiting right of landlord, clearly manifested intention of parties that "Pagri" was given and accepted, providing proper cover in agreement that tenant would not be evicted and could transfer tenancy with consent of landlord. In case reported as Sheikh Muhammad Yousaf versus District Judge, Rawalpindi and 2 others (1987 SCMR 307) while interpretating the term "Pagri" the Hon'ble Supreme Court held that, "plea that landlord having received amount as Pagri at time of letting out shop to tenant, was debarred from seeking ejectment, repelled for that being a mutual arrangement between parties would not debar landlord from instituting eviction proceedings on ground of bona fide personal need."
Agreement of 1998 is not admitted between the parties. Respondent states that they are in possession of the premises according to the agreement of 1997. According to which monthly rent was Rs. 9,350/- and in the property the flat was also included whereas after the disputed agreement of 1998 the flat was missing but the rent was increased to Rs. 12,000/-. The evidence on the record shows that parties entered into agreement on 12.12.1998 and the same has also been placed on the record but the same was not exhibited yet its terms have been approved. According to this agreement, petitioner was under legal obligation to deposit rent till fifth of every month but the record reveals that the petitioner never deposited the rent till the fifth of every month. Petitioner was required to make payment on the increased rate of rent at Rs. 12,000/- per month before fifth of every month. Which was not paid in accordance with the agreement dated 12.12.1998.
Petitioner was running a medical store on the ground floor whereas the Respondent No. 4 was doing his own business in one of the shop and the basement of the shop was also in possession of the Respondent No. 4. While appearing as AW-1 respondent stated that Respondent No. 4 had been depositing income tax as owner of the business. This part has not been cross-examined by the petitioner. Respondent No. 4 although submitted joint written reply alongwith other respondents but he never appeared in the Court to establish that he was the servant of other respondents. Respondent No. 4 was proceeded ex parte because in the trial Court he made statement on summon for his appearance that he had left the shop two years back as his period of tenancy expired. Again as per report of another summon of Gul Aziz issued earlier, it was reported that basement shops were found close, therefore, learned Addl. District Judge had rightly concluded that the Respondent No. 4 was performing business and after his vacation the shops were closed. It is established on the record that shop was sub-leted to Gul Aziz Respondent No. 4 However, as to the Respondents Nos. 2 and 3 the same is not proved as they are brothers of Respondent No. 1 and there can be joint business. So, it is established on the record that respondent has sub-leted the shops in basement to Gul Aziz Respondent No. 4.
It is admitted that partition wall and front wall in the basement has been removed. Learned counsel for petitioner argues that removing of these walls was agreed by the parties vide Iqrarnama Exh. D. 3. On the basis of Iqrarnama Ex. D.3, it was agreed between the parties that wall in between Shops Nos. 3 & 4 on the ground floor would be removed and it did not pertain to the shop in basement. This being so, finding recorded by the learned Addl. District Judge, that the petitioner has damaged the property by removing the wall of the basement is in accordance with the correct reading of the evidence on record. Learned Addl. District Judge while appreciating the evidence on record, keeping in view of the provision of law and the remand order of this Court has correctly appreciated the evidence and accepted the appeal of the respondent and passed the ejectment order by accepting the ejectment petition against the petitioner which does not call for any interference in exercise of writ jurisdiction of this Court. Resultantly, this petition fails and the same is dismissed.
(J.R.) Petition dismissed.
PLJ 2006 Lahore 113 [Rawalpindi Bench Rawalpindi]
Present: Muhammad Akhtar Shabbir, J.
REHMAT ELAHI--Petitioner
versus
PAKISTAN through SECRETARY DEFENCE RAWALPINDI/ ISLAMABAD and 8 others--Respondents
F.A.O. No. 161 of 2004, decided on 20.4.2005.
Words and Phrases--
----Terms "judgment in Personam" and "judgment in rem"--Distinction--Applicability--Judgment passed by Referee Court--Except one person, none of other persons challenged judgment rendered by Referee Court--Claim of person who had challenged judgment of Referee Court is appeal relating to enhancement of compensation amount was accepted and he was awarded enhanced compensation--Judgment of Referee Court had however, attained finality against appellant and other persons who had not challenged judgment of Referee Court--Judgment of High Court in favour of person who had appealed against judgment of Referee Court was "judgment in personam" therefore, appellant who had not challenged judgment of Referee Court could not claim benefit of judgment which was "judgment in personam" and not "judgment in rem". [P. 114] A
Words and Phrases--
----Terms "judgment in rem" and "judgment in personam" distinction between "judgment in rem" and "judgment in personam" defined and illustrated. [Pp. 114 & 115] B
Words and Phrases--
----Phrase, "judgment in rem" and "judgment in personam"--Effect--Applicability--Judgment inter se parties, though binding between them, does not affect rights of third parties--"Judgment in rem" creates what is in fact a right good against all mankind--Effect of action "in rem" is to conclude the whole community, whereas effect of action "in personam" is to conclude individual only--Appellant having himself accepted that he did not assail judgment passed he Referee Court on his Reference and such judgment having attained finality, he would not be entitled to any benefit out of judgment passed by High Court in favour of third party. [P. 116] C
PLD 1974 Note 5 and 2001 Cr.L.J. 28 ref.
Mr. Mazhar Masood Khan, Advocate for Appellant.
Date of hearing: 20.4.2005.
Order
The facts giving rise to the present appeal are to the effect that the appellant and Respondents Nos. 6 to 9 owned land measuring 1-Kanal, 1-Marlas Bearing Khasra Nos. 530 and 541 situated in the area of Jatial, Tehsil and District Attock, which was required by the Land Acquisition Collector, Attock, for the extension of domestic Colony M.R.F. (P.A.C.) Kamra through Award No. A-64/514/AC/LAC dated 26.9.1991. In the award the compensation had been awarded at the rate of Rs. 50,000/- per Kanal plus 15% compulsory land acquisition charges. The appellant as well as Respondents Nos. 6 to 9 objecting the Award filed a Reference under Section 18 of the Land Acquisition Act. The Collector has also referred the same to the learned Senior Civil Judge, Attock. During the pendency of the References in the Court of learned Senior Civil Judge, a senior Advocate was appointed as a Local Commissioner for determination of the market value, who assessed the same at the rate of Rs. five and a half lacs per Kanal. The Court consolidated all the References with Reference Nos. 18/11 and 51/11 and framed the relevant issues out of the pleadings of the parties. Vide his judgment-dated 4.12.1995, the learned Senior Civil Judge dismissed the Reference. One of the petitioners in Reference No. 18/II challenged the judgment passed by the learned Senior Civil Judge through RFA No. 146 of 1996 but the appellant did not file any appeal. RFA No. 146 of 1996 filed by Ch. Naeem-Ullah against Land Acquisition Collector was decided by the Lahore High Court, Rawalpindi Bench, Rawalpindi, on 10.12.2003 and set aside the judgment passed by the learned Senior Civil Judge, Attock, on 4.12.1995 and it was directed that Issues Nos. 7 and 8 be decided afresh.
The present appellant moved an application before the learned Senior Civil Judge for extension of the benefit of the judgment passed by this Court in RFA No. 146 of 1996. On 12.7.2004, the learned Senior Civil Judge has decided the Reference of Ch. Naeem Ullah filed against the Land Acquisition Collector and the compensation was enhanced from Rs. 50,000/- to Rs. 1,00,000/- and the application for extension of the benefit of that judgment was dismissed.
The appellant through the instant appeal has challenged the order dated 12.7.2004 whereby his application was dismissed and has prayed for extension of benefit to him also.
I have heard the learned counsel for the appellant and have perused the record. The appellant did not challenge the judgment passed by the learned Senior Civil Judge, Attock, in his Reference by way of an appeal before the High Court and out of the whole lot, one party/Ch. Naeem Ullah had filed RFA No. 146 of 1996, which was accepted and the case was remanded to the learned Senior Civil Judge, who enhanced the compensation amount of his land. The judgment passed by this Court as well as the learned Senior Civil Judge was a judgment between the appellant in the aforesaid appeal and the Land Acquisition Collector. It was a "judgment in personam" and Not "judgment in rem". The appellant can claim the benefit of a judgment, had it "judgment in rem", but the dictum laid down by the High Court in "judgment in personam" is not attracted to the case of the present appellant.
The term "in rem" and
"in personam" are of Roman Law used in connection with the action, that is, action "in rem" and action "in personam" to denote the nature of actions and with the disappearance of the Roman forms of procedure, each of the two terms "in rem" and "in personam" got tagged with the word judgments to denote the end-products of action in rem' and actionin personam'. Thus, according to the civil law an action in which a claim of ownership was made against all other persons was an action in rem' and the judgment pronounced in such action was a judgmentin rem'. The judgment `in personam' means as defined in Black's Law Dictionary, one imposing on the defendants personal liability to pay it, and which may, therefore, satisfied out of any of his property which is within reach of process, distinugished from one which would be satisfied only out of a particular fund or the process of particular property. Judgments in which Court has personal jurisdiction over parties.
In the case of Noor Muhammad and 5 others vs. The Chairman, Allotment Committee, Pakpattan (PLD 1974 Note 5), the Hon'ble Judge of the Lahore High Court to observed that a "judgment in personam" or inter-se parties is that which determines the right of parties inter-se to or in the subject-matter in dispute whether it be corporeal property of any kind or a liquidated or unliquidated demand, but does not affect the status of either persons or things, or makes any disposition of property or declares or determines any interest in it except as between the parties litigant.
A judgment inter-se parties, though binding between them does not affect the rights of third parties. A
"judgment in rem" creates what is in fact a right good against all mankind. The effect of an action in rem' is to conclude the whole community, but the effect of actionin personam' is to conclude individual only. In this context, reference can be made to a judgment of this Court in the case of Esra
Omer Yousaf vs. Controller of Examination, Bahauddin Zakarya University, Multan
(2001 Cr.LJ 28).
The appellant himself has accepted that he did not assail the judgment passed by the Referee Court on his Reference and the said judgment has attained finality, therefore, he is not entitled to any benefit out of the judgment passed by this Court in RFA No. 146 of 1996. Consequently, for the foregoing reasons, the present appeal being devoid of any force is dismissed in limine.
(A.A.) Appeal dismissed
PLJ 2006 Lahore 116 [Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
MUHAMMAD AMIN--Petitioner
versus
ELECTION TRIBUNAL and 11 others--Repsondents
W.P. No. 6114 of 2005, decided on 31.10.2005.
Approbation and Reprobation--
----Dictum of law--Doctrine of election--Doctrine of election or approbation and reprobation comes to play where party enters into an agreement of its own free will for disposal of matter except party denies having given consent or pleads mistaken view of situation or alleged to have been duped or taken in--Held: Petitioner was debarred from challenging the consent given by him with free will and consent before tribunal for recounting of votes. [P. 118] C
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Recounting of votes with consent--Validity--Jurisdiction--Election tribunal had no jurisdiction to direct recounting without recording evidence as well as recording finding on subject necessitating recounting of votes--Petitioner gave his consent with free will in presence of his counsel and did not raise objection about recounting--Held: Legal position as pointed was not applicable as held in PLD 1986 SC 542--Further held: Tribunal could not act on consent given by petitioner and should not be allowed to do so--Petition dismissed. [P. 118] A, B & D
Pir Muhammad Asif Rafi, Advocate for Petitioner.
Mirza Aziz Akbar Baig, Advocate for Contesting Respondent No. 2.
Malik Arshad Hussain Bhatti, Advocate for Respondent No. 5.
Date of hearing: 31.10.2005.
Order
The petitioner has filed this Constitutional petition, seeking quashment of order dated 27.9.2005 whereby the learned Election Tribunal Respondent No. 1 by accepting application of Respondent No. 2 with the consent of the petitioner, directed recounting of votes at Polling Station No. 2 Govt. Girls Primary School 433/TDA for the seat of Peasant Councilor of Union Council No. 34.
Learned counsel for the petitioner by placing reliance on "Zulfiqar Ali versus Election Tribunal/Civil Judge Ist Class, Khanpur and 5 others" (2000 MLD 746), "Muhammad Saeed Qazi and another versus Election Tribunal/Additional District and Sessions Judge, Lahore and 16 others" (2004 CLC 631) and "Malik Muhammad Munawar Khan versus Election Tribunal/District Judge, Lahore and 8 others" (1991 CLC 180), has argued that without recording evidence necessitating recounting of votes, the Election Tribunal had got no jurisdiction to order recounting of votes and that the consent attributed to the petitioner by the Election Tribunal is mistaken view of the situation, as before obtaining consent, the petitioner was not sufficiently explained the circumstances but the same was sought by way of query which the petitioner could not understand and thus the consent so obtained was neither legal nor binding on him.
On the other hand, learned counsel appearing on behalf of contesting Respondent No. 2/Election Petitioner has argued that the petitioner gave his consent after fully understanding the result and that there was no such like situation terming it that same was bad mistaken view of the situation.
I have considered the arguments of learned counsel for the parties and gone through the record.
There is no cavil to the proposition that while deciding the question of recounting, the Election Tribunal has not jurisdiction to direct such recounting without recording evidence as well as recording findings on the subject necessitating recounting of votes. However, in the instant case the position is not that as argued by learned counsel for the petitioner, as also held in the cited judgments. In the instant case the petitioner gave his consent with free will in the presence of Sardar Manzoor Ahmad Khan, Advocate his learned counsel and his learned counsel answering the query by the Tribunal, raised no objection about said recounting. In such like situation, the legal position as pointed above, is not applicable as held by the Hon'ble Supreme Court of Pakistan in the case "Haji Muhammad Asghar versus Malik Shah Muhammad Awan and another" (PLD 1986 SC 542) that where a party to the proceedings before a Court or Tribunal enters into an agreement of its own free will for disposal of the matter, it cannot turn round and successfully plead that the tribunal could not act on the consent given by the petitioner and should not be allowed to do so. It was further held by the Hon'ble Supreme Court in the cited judgment that doctrine of election, or approbation and reprobation comes to play where party enters into an agreement of its own free will for disposal of matter except where party denies having given consent, or pleads mistaken view of the situation or alleges to have been otherwise duped or taken in. Respectfully following the above dictum of law, I am satisfied that the petitioner is debarred from challenging the consent given by him with free will and consent before the learned Election Tribunal for recounting of votes.
Even the impugned order is an interlocutory order, whereby the entire dispute has not been decided by the learned Election Tribunal and as held by the Hon'ble Supreme Court in the case "A.F. Ferguson & Co. versus The Sindh Labour Court and another" (PLD 1985 SC 429), High Court should refrain from exercising Constitutional jurisdiction in cases where the entire dispute has not been completely disposed of.
The result of above discussion is that this petition has no merit and is dismissed as such.
(R.A.) Petition dismissed
PLJ 2006 Lahore 119 [Multan Bench, Multan]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD SHARIF--Petitioner
versus
TEHSIL COUNCIL KAHROOR PAKKA, DISTRICT LODHRAN through NAZIM and another--Respondents
W.P. No. 6049 of 2004, heard on 3.3.2005.
Punjab Local Government Ordinance, 2001--
----Ss. 67 & 57--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Functions and powers of Tehsil Council and Nazim--Resolution passed by respondent--Petitioner has been declared to be a police tout and debarred from entering P.S. City--Ss. 67 & 57 of Punjab Local Government Ordinance, 2001, provides the function and powers of Tehsil Council and Nazim--Not find any power vesting in Tehsil Council or Tehsil Nazim to declare a citizen to be a police tout--Petition allowed and impugned resolution is set aside being without lawful authority and void. [P. 119] A
Miss Moona Safdar, Advocate for Petitioner.
Malik Qasim Khan Joya, Advocate for Respondent No. 1.
Date of hearing: 3.3.2005.
Judgment
This writ petition questions a resolution passed by the Respondent No. 1 (Annex `G') whereby the petitioner has been declared of a Police tout and it has been recommended that his entry in P.S. City be banned.
Learned counsel for the petitioner contends that the Respondent No. 1 has no lawful authority to pass such a resolution and that too without any notice or hearing of the petitioner. Learned counsel for the Respondent No. 1 has stated that the matter was taken as an item of public interest in the house and the resolution passed.
I have examined the said resolution. The proposal is that the petitioner be declared to be a Police tout and he be debarred from entering P.S. City. The resolution was carried.
Now Section 67 of the Punjab Local Government Ordinance, 2001 provides the functions and powers of the Tehsil Counsel while Section 57 of the said Ordinance provides for the functions of a Tehsil Nazim. I do not find any power vesting in the Tehsil Council or the Tehsil Nazim to declare a citizen to be a police tout. The writ petition in accordingly allowed and the impugned resolution is set aside being without lawful authority and void. No orders as to costs.
The petitioner may approach a Civil Court by filing a properly constituted suit for damages, if so advised.
(A.S.) Petition allowed.
PLJ 2006 Lahore 120
Present: Umar Ata Bandial, J.
Mst. BUSHRA BEGUM--Petitioner
versus
GOVERNMENT OF THE PUNJAB through SECRETARY EDUCATION, CIVIL SECRETARIAT, LAHORE and 4 others--Respondents
W.P. No. 1266 of 2004, decided on 21.10.2005.
Constitution of Pakistan, 1973--
----Arts. 199, 4, 8 & 25--Servoce matter--Restrained from performance of duties verbally without passing any order in writing--Resort to High Court in Constitutional jurisdiction and direction in the nature of mandamus sought on ground that appointment order till date intact and Chief-Minister Punjab allowed re-instatement of 1000 teachers whose appeal were dismissed by Service Tribunal and even Supreme Court respondents stated in comments that there was no direction from Chief-Minister qua petitioner she was never terminated however admitted that--Held: Stand taken by respondents suffered from two flaws--Firstly without having been terminated from service the petitioner did not have to be re-instated and therefore no direction by Chief Minister in her case was necessary--Secondly if one thousand similarly placed teachers have been restored to office there is no reason for assigning her work in district consequently writ petition allowed with a direction to respondent to allowed duties to the petitioner as SVT--Further held: If any proceedings are to be under taken against petitioner same shall be done within two months subject to notice and after hearing the petitioner--Petition disposed of. [P. 121] A, B, C, D, E & F
Mr. Pervaiz Inayat Malik, Advocate for Petitioner.
Mr. Misbah-ul-Islam, AAG with Arshad Pervez Qamar, AEO Nurkot, Distt. Narowal with record.
Date of hearing: 21.10.2005.
Order
Learned counsel for the petitioner has referred to the order dated 29.1.2001 by Respondent No. 3 issued on the appeal filed by the petitioner wherein it is acknowledged that the appointment letter of the petitioner was never cancelled by the concerned authorities on account of an error. Consequently, learned counsel for the petitioner submits that the petitioner was admittedly never terminated from the post of an SVT. One thousand other teachers holding the same post whose appointments had been cancelled on bloc were restored to their posts by order of the Chief Minister Punjab during his visit to District Sialkot. The written comments by the Respondent No. 1 state that no direction for reinstatement of the petitioner has been given by the Chief Minister and therefore no action has been taken to assign duties to her.
The stand taken by the Respondent No. 1 suffers from two flaws. Firstly, without having been terminated from service, the petitioner did not have to be reinstated and therefore no direction by the Chief Minister in her case was necessary. Secondly, if one thousand similarly placed teachers have been restored to office, there is no reason for the Respondent No. 1 to discriminate against the petitioner for assigning her work in the district.
The Respondent No. 3 is accordingly directed to assign duties to the petitioner as a SVT since admittedly she has never been terminated from service. If on the other hand, there are any proceedings to be taken against the petitioner, the District Education Officer, Narowal may commence the same subject to notice and hearing to the petitioner and strictly in accordance with law. The needful shall be done within a period of two months.
With the foregoing observation the petition is disposed of.
(R.A.) Petition disposed of
PLJ 2006 Lahore 121
Present: Ch. Ijaz Ahmed, J.
Mst. AZRA PERVEEN--Petitioner
versus
PAKISTAN CRICKET BOARD through its CHIEF EXECUTIVE, GADDAFI STADIUM, LAHORE and 2 others--Respondents
W.P. No. 356 of 2005, decided on 4.3.2005.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Pakistan Women Cricket Association--Nomination of Respondent No. 3 as Convener/coordinator by Chairman Pakistan Cricket Board--Civil suit pending in civil Court on some controversy--Non-mentioning facts in writ petition--Effect of--Constitutional jurisdiction is discretionary in character--Petitioner has concealed material facts from Court which is fatal in nature--Held: Writ petition is not maintainable and accordingly dismissed. [P. 126] A
Mr. Shahzad Hassan Mian, Advocate for Petitioner.
Syed Asghar Haider, Advocate for Respondents.
Date of hearing: 4.3.2005.
Order
The petitioner has filed this Constitutional petition with the following prayer:
"Under the circumstances, it is most respectfully prayed that this petition may be accepted and the act of the Respondent No. 2 for the nomination of Respondent No. 3 as national convener/ coordinator may kindly be declared as void, mala fide, arbitrary and without lawful authority.
It is further prayed that Respondent No. 1 may be directed firstly to frame proper rules of business for appointment of national convener/coordinator and create a national set up of Women Cricket in Pakistan which should be preferably amongst the provincial set-up already formulated by Respondent No. 1 and then proceed with the matter on merits in accordance with law.
It is further prayed that till the final disposal of this writ petition, the act of the Respondent No. 2 for the nomination of Respondent No. 3 may be declared as void and without any lawful authority."
"RECOMMENDATIONS:
(i) In order to take control of women cricket in Pakistan.
(ii) To give representation women in their General Council.
(iii) PCB may establish a women wing in which a well-reputed lady may be appointed as manager cricket affairs for women in Pakistan.
(i) PCB appoint a neutral selection committee to select a National Team.
(ii) An impartial team management may be appointed by PCB.
(iii) PCB may intimate IWCC regrading the representation of Pakistan Women Cricket Team under the umbrella of PCB.
The PCB may establish Provincial Cricket Association and provide a playing structure, domestic/international, which based on club cricket. PCB may also create an administrative structure.
Sindh and Balochistan Provincial Cricket Associations may be announced in consultation with PWCCA or the representative of PWCCA may coordinate affair of the women cricket in Sindh and Balochistan.
The same treatment should be given to the PWCA with regard to the Provincial Cricket Association of Punjab and N.W.F.P.
The PCB may draft a Constitution for Provincial Cricket Associations, wherein an elected body of women would run the Cricket affair in their Provinces.
PCB should draft a code of conduct and ethics for persons involve in women cricket, which should be implemented strictly.
The recommendations of the scrutiny committee was approved by the Pakistan Cricket Board in the following terms:--
"(a) Women Cricket of Pakistan has come under the governance of Pakistan Cricket Board.
(b) An office has been allocated in the PCB Secretariat, which will be run by a lady coordinator.
(c) Provincial setup has been formed and names of lady office bearers will soon be announced.
(d) National Selection Team comprising of renowned Test Cricket Mr. Imtiaz Ahmad and Mr. Ejaz Faqih have been nominated to carry out trials of Women Cricketers to select a strong Pakistan Women Cricket Team (PCB) on merit for the forthcoming Women World Cup to be held in June, 2003.
The above decision will come in force with immediate effect and with your cooperation and support a strong Pakistan Women Cricket Team (PCB) will be selected."
Thereafter Pakistan Cricket Board also accepted nomination papers. Respondents also issued letters to the petitioner on 4th April, 2003 in the following terms:
No. PCB/Women/Punjab/-01 Dated: 4th April, 2003 Miss Azra Praveen Lahore.
Subject: Pakistan Women Cricket.
I am pleased to advise that the Chairman Pakistan Cricket Board has appointed you as Secretary Punjab Provincial Women Cricket Association to run the affairs of Women Cricket Association at provincial level with following:
(a) Mrs. Bushra Aitzaz Ahsan President
(b) Mrs. Shirin Javed Co-President
The Provincial Association will be under the governance of PCB and you will report to the PCB through Cricket Operations Department. Your tenure of appointment will continue till elections are held for the office bearers of Provincial Women Cricket setup. These elections will be announced at a later stage. Please submit your acceptance of this nomination to us at your earliest.
Ahmad Anwar
A/G.M Cricket Operations.
Respondent No. 2 has nominated Respondent No. 3 as National convener of Women Cricket Pakistan as is evident from newspaper and press release dated 3.11.2004. The petitioner came to know this fact through the aforesaid clipping news, filed this Constitutional petition on the ground that Respondent No. 3 has no experience in the cricket side undoubtedly keeps an outstanding reputation in educational circle, therefore, Respondent No. 2 has no authority whatsoever to appoint any person as convener/coordinator at National level, therefore, action of the Respondent No. 2 is without lawful authority. He further submits that respondents accepted the direction of this Court with regard to certain direction but did not accept the recommendations in toto while appointing Respondent No. 3 as convener, therefore, action of the respondents is without lawful authority. He further submits that action of the respondents is in derogation of the order passed by this Court in W.P. No. 25720/98 vide judgment dated 30.6.2002, which is binding on the parties. He further submits that Respondent No. 2 has no lawful authority to appoint Respondent No. 3 as national convener/ coordinator as the law does not authorize him to appoint Respondent No. 3, therefore, petitioner has lot of experience in the field as is evident from Annexure-A attached with the Constitutional petition, therefore, appointment of Respondent No. 3 is result of nepotism and favoritism.
(i) Mr. Justice (R) Karamat Nazir Bhandari;
(ii) Mr. Makhdoom Ali Khan, Attorney General for Pakistan;
(iii) Mr. Zahid Hamid, Advocate Supreme Court of Pakistan.
He further submits that there are no statutory rules of the respondents, therefore, Constitutional petition is not maintainable. He further urges that the matter does not entail cricketing experience at all. Women Cricket is in initial stages and requires a visionary person to establish a sound administrative setup, the Respondent No. 3 was obvious choice for this purpose because of her experience and international exposure, therefore, Constitutional petition is not maintainable.
Ardeshir Cowasjee and others vs. K.B.S.A. & other (2001 YLR 2403).
Dr. Insaf Ahmed vs. Medical Superintendent C.M.C. Hospital, Larkana and 4 others (2001 YLR 1088).
He further submits that petitioner has filed a civil suit which has no nexus in the present case, therefore, none mentioning of the civil suit in the Constitutional petition is not fatal. He further submits that the respondents are not working within the parameters prescribed in the recommendations, which are at page 19 of this file, therefore, action of the respondents is mala fide. He further urges that the respondents are not exercising powers within the framework of law, therefore, Constitutional petition is not maintainable.
I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
It is admitted fact that petitioner has filed a civil suit as is highlighted by the respondents in preliminary Objection No. 4 titled Miss Azra Parveen vs. Imtiaz Ahmed, which is pending in the competent Civil Court. This fact is not mentioned by the petitioner in the contents of the writ petition and even did not file copy of the suit after filing report and parawise comments by Respondent No. 2 in the office on 9.2.2005. He also did not request to file the same for comparison purpose during the arguments. It is settled principle of law that Constitutional jurisdiction is discretionary in character. The petitioner who has concealed the material facts from this Court which is fatal in nature as per law laid down by the Honourable Supreme Court in the following judgments:
Principle, King Edward Medical College Lahore vs. Ghulam Mustafa etc. (1983 SCMR 196)
Abdur Rashid vs. Pakistan and others (1969 SCMR 141).
With these observations the writ petition is disposed of.
(A.S.) Petition disposed of.
PLJ 2006 Lahore 127 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD MAQBOOL HASSAN ANEES--Petitioner
versus
PRESIDING OFFICER PUNJAB LABOUR COURT NO. 9, MULTAN and 2 others--Respondents
W.P. No. 2661 of 2003, heard on 13.7.2005.
Service Tribunal Act, 1973 (LXX of 1973)--
----Ss. 2(a) & 6--Constitution of Pakistan, 1973, Arts. 199 & 212(3)--Constitutional petition--Abatement--Petitioner, employee of Pak Arab Fertilizers (Pvt.) Ltd.--Dismissed from service--Re-instated in service by labour Court without back benefits--Appeal filed by employer allowed--While appeal filed by petitioner was dismissed--Supreme Court remanded case to Labour Court for decision afresh--Validity--Matter was not so decided for more than a decade after judgment--Meantime S. 2-A of Service Tribunal Act, 1973, was promulgated--Insertion having been made, entire statute is to be read--All suits, appeals or applications regarding any matter within jurisdiction of tribunal pending in any Court immediately before commencement of act shall abate fortwith--Appellate tribunal had not complied with clear directives of Supreme Court, in second, with knowledge of said statutory change, proceeded to send back case to Labour Court holding its judgment to be perverse on basis of statements recorded with direction to decide matter in accordance with law--Labour Court ultimately has held that no jurisdiction to decide matter and returned grievance petition--Held: Petitioner has very rightly complained that remanding case to Labour Court was utterly without jurisdiction--Petition dismissed. [Pp. 129, 130 & 131] A, B, C, D & E
Petitioner in person.
Mr. Javed Altaf, Advocate for Respondents.
Date of hearing: 13.7.2005.
Judgment
This judgment shall dispose of W.P. No. 2661/03 an FAO No. 56/03 as, in fact, these proceed against an order passed by a learned Punjab Labour Court No. 9, Multan, on 31.5.2003 and also question the order passed by the learned Punjab Labour Appellate Tribunal on 24.5.2002.
"The learned counsel for the appellant and the respondent have unanimously stated that the judgment of the Court below dated 8.6.1977 is perverse and does not represent the true appraisal of evidence hence the instant appeal filed by the appellant establishment may be allowed and the case may be remanded to the learned Labour Court No. 9, Multan for re-writing of the judgment.
The request being genuine and unanimous is allowed. I, therefore, allow this appeal, set aside the impugned judgment and remand the case to Punjab Labour Court No. 9, Multan for fresh adjudication of the case in the light of the evidence available on the file and after hearing the learned counsel for the parties.
Parties are directed to appear before Labour Court No. 9, Multan, on 8.6.2002. Expeditious disposal is required, preferably within 60 days."
After the said remand, the learned Punjab Labour Court No. 9, Multan, proceeded to hold vide judgment dated 31.5.2003 that in view of the said Section 2-A of the Service Tribunals Acts, 1973, which is fully applicable as the employer-Company is an establishment owned, controlled and supervised by the Federal Government with a controlling share of 52%, the grievance petition is not proceedable in the Labour Court and then the said Labour Court proceeded to return the grievance petition to the petitioner for its presentation before a Court of competent jurisdiction.
The petitioner in person vehemently contends that he had duly brought the factum of the said amendment of the said statute to the notice of the learned Labour Appellate Tribunal still it proceeded to remand the case. He also adds that he never agreed to the said remand. His precise plea is that if Section 2-A of the said Act, 1973, was to be applied then by all means the appeal filed by his employer before the learned Labour Appellate Tribunal stood abated alongwith his own appeal and then matters were to be governed by legal and Constitutional provisions. Mr. Javed Altaf, Advocate/ learned counsel for the employer-Company while not denying that the said Section 2-A is applicable, and thus trying to support the judgment of the Labour Court, urges that since the remand was ordered with the consent of the petitioner, the said objection would not be available and it cannot be said that the Labour Court or the learned Appellate Tribunal had acted without jurisdiction or without lawful authority.
I have duly considered the respective contentions of the parties and have examined the entire available records, with the assistance of the petitioner in person and the learned counsel for the respondents. I have already detailed above the entire history of this case. Now the Hon'ble Supreme Court of Pakistan in the judgment dated 10.11.1990 (I may note here that this judgment is reported as PLD 1991 SC 258 and the matter was decided alongwith some other similar matters) had directed the learned Labour Appellate Tribunal to decide the matter afresh in accordance with law. It is but obvious that the matter was not so decided for more than a decade after the said judgment. In the meantime Section 2-A of the Service Tribunals Act, 1973, was promulgated on 10.6.1997 vide the Service Tribunals (Amendment) Act (XVII of 1997). The result was that a person holding a post under anauthority, corporation, body or organization estbalished by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest was deemed to be a civil servant for the purposes of this Act. Admittedly, the employer-Company is such a body or corporation and the petitioner is holding a post under it. The said insertion having been made, the entire statute is to be read. Now Section 6 of the said Act of 1973, provides that all suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith. The proviso entitles any party to such a suit, appeal or application to file an appeal within the time prescribed in respect of any such matter which is under issue in such a suit, appeal or application. The result was that both the appeals pending before the learned Appellate Tribunal stood abated. Now the said Section 2-A came up for interpretation in context of Section 6 of the said Act, 1973, in the case of G.M. National Bank of Pakistan and others v. Abdul Aziz and others (2002 PLC (C.S.) 18). The Hon'ble Supreme Court of Pakistan Court approved the following dictum earlier given in the case of Federation of Pakistan v. Muhammad Siddiq (PLD 1981 SC 249) at pages 24 and 25 of the said report:
"It is not possible, we regret, to uphold the view taken by a learned Single Judge in the High Court in the case of S.M. Nafisul Hassan Shah to the effect that on appeal filed by the
Government is not at all entertainable under the Act. It is true that in the proviso to Section 6 of the Ordinance which preceded the Act it was specified that a civil servant, who was a party to suit, appeal or application which abated under the purview of Section 6 could prefer an appeal to the appropriate tribunal. But in the Act itself a change was brought about in the language of the proviso. The phrase any civil servant who is a party to such a suit' was substituted by the phraseany party to such a suit'. The Act was promulgated on the 29th of September, 1973 while the appeal before the Service Tribunal in the said case was filed on the 24th of October, 1974, if this change would have been brought to the notice of the High Court, the observation that the Service
Tribunal had no jurisdiction to hear appeal or to entertain any proceedings `of any kind whatsoever at the instance of the Government', would not have been made."
I have also the advantage of going through another judgment of the Hon'ble Supreme Court of Pakistan Court of Pakistan which was given in a very case pertaining to the respondent-employer-Company in the case of General Manager Pak. Arab Fertilizers Ltd. Khanewal Road, Multan v. Muhammad Ayub son of Fazal Elahi (C.A. No. 796 of 2000) on 10.2.2005. Their Lordship have held that the original remedies provided in the statutes governing the parties in a labour matter would stand abated but not a writ petition that was filed after all the remedies had been exhausted.
Now what happened in the present case is that the learned Appellate Tribunal, in the first instance, had not complied with the clear directives of the Hon'ble Supreme Court of Pakistan, in the second, with knowledge of the said statutory change (and to my mind the statute would take effect whether or not the Court or tribunal is aware), he proceeded to send back the case to the learned Labour Court holding its judgment to be perverse on the basis of the statements recorded and with the direction to decide the matter in accordance with law. The Labour Court ultimately has held that he has no jurisdiction to decide the matter in view of Section 2-A of the said Act, 1973 and has returned the grievance petition.
The petitioner has very rightly complained that the said order of the learned Labour Appellate Tribunal remanding the case to the Labour Court is utterly without jurisdiction. The reason being that there was no proceeding before him either in fact or in law on the day when he proceeded to remand the same for the reason that the appeals of both the parties stood bated in terms of Section 2-A read with Section 6 of the Service Tribunals Act, 1973 and Article 212(3) of the Constitution of the country.
The writ petition as well as the FAO are allowed and the order passed by the learned Labour Appellate Tribunal at Lahore on 24.5.2002 and consequent proceedings and order passed by the learned Punjab Labour Court No. 9, Multan, on 31.5.2003, are declared to be without lawful authority and are set aside with a further declaration that both the appeals against the original order dated 8.6.1977 of the learned Labour Court No. 9, Multan, stood abated by operation of Section 2-A read with Section 6 of the Service Tribunal Act, 1973 and Article 212(3) of the Constitution. No orders as to costs.
(A.S.) Order accordingly
PLJ 2006 Lahore 131 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
Mst. HUMA BILAL--Appellant
versus
GHULAM FARID--Respondent
S.A.O. No. 33 of 2000, heard on 9.3.2005.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(a)--Ejectment application--Change of ownership--Notice served on tenant--Defualt in payment of rent--Application allowed--Finding of Rent Controller reversed--Challenge to--Explanation on record as to after receipt of notice rent was made deposited in favour of respondent--No explanation as to why even after putting in appearance in ejectment petition, no attempt was made to deposit rent for said period--Needless to state benefits only such a tenant who after receipt of notice deposits entire rent due within 30 days--Important condition is missing--Deposit made in favour of landlord cannot be deemed to be deposit in favour of respondent--Held: If service of notice under S. 13-A has not proved, filing of petition itself is notice and even rent due is not paid to new landlord, tenant can be ejected on ground of defaul. [Pp. 134 & 135] A, B & C
Mian Habib-ur-Rehman Ansari, Advocate for Appellant.
Mirza Aziz Akbar Baig, Advocate for Respondent.
Date of hearing: 9.3.2005.
Judgment
On 17.12.1996 the respondent filed an application for the ejectment of the appellant from a building located in Multan urban area. It was stated in the application that the appellant was tenant in the building question under the previous owner since 1993 and that the respondent acquired the said building by means of a registered exchange deed dated 2.6.1996. He informed the appellant verbally as well as in writing of the said fact and called upon her to pay rent at the agreed rate of Rs. 10,000/- per month. The ejectment was sought on the ground of default in payment of rent at the said rate w.e.f. June, 1996 and also on the ground that the building is bona fide required for personal use and occupation. The appellant filed a written reply on 5.5.1997. She admitted that the respondent is owner of the building. She, however, stated that the respondent has entered into an agreement to sell the building in favour of one Javed Khan Niazi vide agreement dated 5.1.1997. It was further stated that the building was previously owned by Ghulam Abbas and was rented out to the appellant on his behalf by Khadim Hussain Sahar and that she is running a School in the said building. She appended a copy of the rent deed. She came to know about factum of transfer by means of a written notice dated 27.11.1996 served upon her by the respondent which she replied through her counsel on 10.12.1996. She appended the copies of the notice as well as the reply. She further sated that she has deposited rent upto December, 1996, in accordance with the rent agreement and that rent for June, 1996, was paid to Khadim Hussain against receipt whereafter he refused to receive the rent and an application was filed that learned Rent Controller where the rent is being deposited. She also denied the plea of personal requirement. Issues were framed. Evidence of the parties was recorded. The learned Rent Controller allowed the application and passed an order of ejectment on 13.2.1999. I may note here that issues pertaining to both the said ground. i.e. default and personal requirement were found in favour of the respondent by the learned Rent Controller. A first appeal filed by the appellant was heard by a learned ADJ, Multan, who vide judgment dated 3.5.2000 reversed the finding of the learned Rent Controller in the matter of personal requirement but affirm the findings in the matter of default and dismissed the first appeal.
Learned counsel for the appellant contends that a case of willful default has not made out. According to him, his client was not aware of the change of ownership prior to the receipt of notice and she had deposited the rent after refusal by the said Khadim Hussain Sahar in Court. He further contends that by the time the notice was received, rent for December, 1996, had already been deposited and thereafter rent was deposited in favour of the respondent. Primary reliance is being placed on the case of Mst. Bushra Fayaz v. Ismail (1987 CLC 390) by contending that a copy of the exchange deed was not provided despite demand contained in the reply to the notice and that the rent although deposited in favour of the previous owner would not constitute a default within the meaning of Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959. Further relies on the cases of Muslim Commercial Bank Ltd. and another v. Additional District Judge, Faisalabad and 7 others (1985 CLC 1854) and Qaisar Zamani v. Rasheeda Begum and 2 others (1985 CLC 596) to urge that notice under Section 13-A of the said Ordinance, is must for ordering ejectment on the ground of default. Learned counsel further contends that an application filed for production of additional evidence was not attended to by the learned ADJ. According to him, this failure constitutes material irregularity. Relies on the case of Muhammad Umer v. Muhammad Qasim and another (1991 SCMR 1232).
Learned counsel for the respondent, on the other hand contends that even if the contention of his client that he had verbally informed the appellant of the transfer is not accepted, it is an admitted position that the notice as contemplated by Section 13-A of the said Ordinance, had been served upon the appellant calling upon her to pay all the arrears w.e.f. 2.6.1996 but still she did not pay the same. Thereafter, she was served with a notice in the ejectment petition itself and she put in appearance and filed a reply, still the arrears were not paid or deposited in favour the respondent. The precise contention is that the deposit made in favour the said Khadim Hussain Sahar would be of no avail to the appellant-lady to meet the allegation of default which, according to the learned counsel, stands established on record.
I have gone through the lower courts records, with the assistance of the learned counsel for the parties. I have already reproduced above the contents of the respective pleadings of the parties. It will further be seen that before me only the matter of default has been agitated by both the parties. Before I proceed further, I deem it necessary to reproduce hereunder Section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959: -
"13-A. Tenant to be informed in case of transfer of ownership. Where the ownership of a building in the possession of a tenant or rented land has been transferred by way of sale, gift, inheritance or in any other manner, whatsoever, from one person to another, the new owner shall send an intimation of such transfer in writing by registered post, to the tenant of such building or rented land, and the tenant shall not be deemed to have defaulted in the payment of rent for the purposes of clause (i) of sub-section (2) of S. 13, if the rent due is paid within thirty days from the dated when the intimation should in the normal course have reached him."
It will be seen that upon a plain reading of the said provision of law, a person acquiring a building which is occupied by a tenant is required to intimate the tenant in writing by registered post of the said fact. The benefit given to the tenant is that he shall not be deemed to have been defaulted in payment of rent for purposes of Section 13(2)(i) of the said Ordinance in case he pays the rent "due" within 30 days from the date when he receives the intimation.
Now the appellant herself produced the notice received by her as Ex. R. 2. It does intimate the appellant that the building has been acquired vide exchange deed. The notice finally calls upon the appellant to pay the rent to the respondent against receipt since 2.6.1996 till date.
Now the case of the appellant is that the said Khadim Hussain Sahar received the rent for June, 1996 against receipt Ex. R. 4 and then he refused to receive the rent. The attorney of the appellant RW-2 was confronted as to why Khadim Hussain Sahar refused to receive the rent. The reply is that he did not state any reason. Now the copy of the application filed by the appellant on 4.7.1996 for deposit of rent is Ex. C. 1. The only person arrayed as respondent is Khadim Hussain Sahar. It has been stated that she has tendered the rent to Khadim Hussain Sahar for Payment but he refused to receive the same and alongwith one Nadeem Jatoi tried to dispossess her whereupon she filed a civil suit and obtained a stay order. According to Ex.C.2, the said Khadim Hussain appeared in person on 5.10.1996 and stated that he has no objection if the appellant deposits the rent in Court. The application was disposed of accordingly. Now the said attorney RW-2 stated that he came to know in December, 1996, through notice Ex.R. 2 that the building has been purchased by the respondent. He did not remember the date of receipt of notice and thereafter rent for January, 1997, was deposited in favour of the respondent in Court. It will, thus, be seen that there is no explanation whatsoever on the record as to why after receipt of notice the rent was not deposited in favour of the respondent. Further there is no explanation as to why even after putting in appearance. In the ejectment petition, no attempt was made to deposit the rent for the said period. Needless to state that Section 13-A of the said Ordinance benefits only such a tenant who after receipt of the notice deposits the entire rent due within 30 days. In the present case, this all important condition is missing. No gain saying the fact that a deposit made in favour of Khadim Hussain Sahar cannot be deemed to be a deposit in favour of the respondent.
Now coming to the judgments cited by the learned counsel; on this point as noted above, nothing turns on the same as the Hon'ble Supreme Court of Pakistan has held that even if service of a notice under Section 13-A of the said Ordinance has not proved, the filing of the petition itself is a notice and even thereafter if the rent due is not paid to the new landlord, the tenant can be ejected on the ground of default. The cases of Major (Retd.) Muhammad Yousaf v. Mehraj-ud-Din and others (1986 SCMR 751) and Syed Azhar Imam Rizvi v. Mst. Salama Khatton (1985 SCMR 24) may be referred.
In the case of Suleman and another v. M.A. Mallick (1988 SCMR 775), in response to a notice issued by the new landlord, the tenant demanded the titled document and continued to deposit the rent in favour of the previous landlord. Their Lordships allowed the appeal of the landlord and ordered ejectment of the tenant. I, therefore, find that the appellant has been correctly held to be a defaulter within the meaning of Section 13(2)(i) read with Section 13-A of the said Ordinance and liable to ejectment.
As to the said second contention of the learned counsel, the judgment being relied upon by him interprets Order XLI, Rule 27 CPC. The provisions of Section 15(3) of the Punjab Urban Rent Restriction Ordinance, 1959, are completely different. Whereas Order XLI, Rule 27 CPC contemplates an application to be filed by a party, Section 15(3) of the said Ordinance only refers to the powers of the appellate Court in the matter of conducting further inquiry. Reference be made to the case of Mst. Umari and another v. Faqir Muhammad and another (PLD 1983 Lahore 349). Be that as it may, the appellant sought production of the records from the Court of the learned Rent Controller with whom she had been depositing the rent with the contention that the rent has not been withdrawn. To my mind, nothing would turn on the said record for the simple reason that the factum of deposit stands proved by production of the relevant challans. What has not been proved is that at any time after the admitted receipt of notice and then filing of the ejectment petition, the due rent from June to December, 1996, was paid or deposited in favour of the respondent.
No other point has been urged. The SAO is accordingly dismissed with no orders to costs. However, the appellant is directed to vacate the building in question and to hand over vacant possession to the respondent on or before 30.6.2005 failing which the respondent shall be entitled to recover vacant possession by executing the impugned ejectment orders.
The records of the learned lower Courts be remitted back immediately.
(A.S.) Order accordingly
PLJ 2006 Lahore 136 [Multan Bench Multan]
Present: Muhammad Nawaz Bhatti, J.
MUHAMMAD ASLAM and 16 others--Petitioners
versus
GHULAM FATIMA (WIDOW) and 6 others--Respondents
C.R. No. 1096-D of 1994, heard on 29.6.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII, Rr. 3 & S. 115--Closure of evidence--Petitioners given seven opportunities--Evidence not adduced even on last date fixed for evidence--Appeal dismissed--Challenge to--Respondents/Plaintiffs concluded their evidence--Petitioners/defendants were given about seven opportunities for production of evidence--On petitioners/defendants were given last opportunity for evidence--Did not produce any evidence nor assigned any reason for non-production of evidence--Trial Court proceeded to close evidence of petitioners--Held: Dismissal of appeal by affirming judgment and decree of trial Court does not suffer from any illegality, jurisdictional error or material irregularity--Petition without merits is accordingly dismissed. [Pp. 138 & 139] A & B
Malik Javaid Akhtar Vains, Advocate for Petitioners.
Ch. Ghulam-ud-Din Aslam, Advocate for Respondents.
Date of hearing: 29.6.2005.
Judgment
This civil revision filed under Section 115 CPC is directed against the judgment dated 5.4.1994 passed by the learned Additional District Judge Lodhran, whereby the appeal of the petitioner was dismissed observing that the learned trial Court had validly closed the evidence of the petitioners and had properly appreciated the evidence brought on record and the relevant law.
Brief facts giving rise to this civil revision are that the respondents claim themselves as owners of land measuring 4 kanals 1 marla situated in Mauza Wahi Fato Channer, Tehsil Lodhran, in accordance with the entries in Misl-e-Haqyat for the year 1963-64. The petitioners allegedly took possession illegally of the said land in the year 1984. The respondents asked to hand over the possession of the suit property but they refused to give the same. The suit was contested by the petitioners by filing written statement, wherein it was contended that the suit was barred by time; that the respondents were estopped by word and conduct from filing the suit; that the suit was not properly valued for the purposes of Court fee and jurisdiction and that they had raised construction over the suit land at the expenses of Rs. 2,00,000/- therefore, they were entitled to the recovery of the expenses.
Out of the pleadings of the parties, following issues were framed:--
Whether the plaintiffs are entitled to the possession of the suit land? OPP
Whether the suit is barred by time? OPD 2 to 4 and 6 to 14.
Whether the suit is barred by way of estoppel? OPD 2 to 4 and 6 to 14.
Whether the suit is not properly valued and stamped? OPD 2 to 4 and 6 to 14.
Whether this Court lacks jurisdiction to try this suit? OPD 2 to 4 and 6 to 14.
Whether the defendants have been enjoying the suit land for a period of more than 12 years and without any interruption? OPD 2 to 4 and 6 to 14.
Whether the defendants are entitled to recover Rs. 2,00,000/- on account of improvements? OPD 2 to 4 and 6 to 14.
Whether the defendants are entitled to special costs? If so upto what extent? OPD 2 to 4 and 6 to 14.
Relief.
The respondents adduced their evidence. The petitioners did not produce the evidence, whereupon their right of evidence was closed under Order 17 Rule 3 CPC on 6.3.1991 and ultimately the suit was decreed against the petitioners by the learned Civil Judge Lodhran vide his judgment dated 1.12.1992. Against the said judgment, the petitioners filed an appeal before the learned Additional District Judge, Lodhran, who vide his judgment dated 5.4.1994 dismissed the same. Hence this civil revision.
Learned counsel for the petitioner has contended that if the case according to the trial Court was to be adjourned for recording the evidence in rebuttal of the respondents/plaintiffs though the petitioners,' evidence had been closed, the discretion should have been exercised in granting another opportunity in the interest of justice to the petitioners to produce evidence, as such the trial Court acted arbitrarily. Reliance in this regard was placed upon Sultan Vs. Yara and others (1995 MLD 1078).
On the other hand, learned counsel for the respondents has vehemently opposed the civil revision and has supported the impugned judgment. He further submitted that the petitioners were given about seven opportunities for the production of evidence but they did not produce any evidence, therefore, the order passed by the trial Courts for closing of evidence was in accordance with law. Reliance in this behalf was placed upon Fateh Sher Vs. Muhammad Zubair (2003 SCMR 797).
I have heard learned counsel for the parties and perused the record.
For the disposal of the civil revision, it is necessary to reproduce Order XVII Rule 3 CPC, which is as under:
"Court may proceed notwithstanding either party fails to produce evidence, etc.--Whether any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.
A bare perusal of the said rule reveals that matter of adjournment and closing of evidence rests in Court's discretion.
Perusal of the record of the trial Court reveals that the respondents/plaintiffs concluded their evidence on 11.12.1989. Thereafter the petitioners/defendants were given about seven opportunities for the production of evidence. On 19.1.1991, the petitioners/defendants were given last opportunity for evidence. On 6.3.1991, they did not produce any evidence nor assigned any reason for non-production of evidence, therefore, the learned trial Court proceeded to close the evidence of the petitioners under Order XVII Rule 3 CPC. It is averred in para 2 of the appeal filed by the petitioners before the learned Addition District Judge that 6.3.1991 was the dated fixed for evidence of the petitioners. One of the petitioners was died on that date, so the petitioners could not bring their evidence. The name of the petitioner had not been disclosed who died on that date. Record shows that none of the petitioners died on that date. Ground of the death of one of the petitioners is not correct and is an after thought. Even otherwise the order dated 6.3.1991, supra, was never assailed.
In the authority referred by learned counsel for the petitioners i.e. 1995 MLD 1078, on the adjourned dated i.e. 13.4.1991 the petitioner alongwith his two witnesses appeared before the Court at 9.00 a.m. but the Court timings started from 7.30 a.m. instead of 9.00 a.m., therefore, the petitioner had no notice of the changed Court timings and as such the order of the trial Court was set aside. But in the present case, on the adjourned date i.e. 6.3.1991, counsel for the parties were present but the evidence of the petitioners was no present despite giving last opportunity to the petitioners on the last dated i.e. 19.1.1991. The facts of the case referred to by learned counsel for the petitioners are different from the facts of the present case, therefore, the authority relied upon by learned counsel for the petitioners is not applicable to this case.
In view of the above circumstances, I am of the view that the dismissal of appeal of the petitioners by the learned Additional District Judge by affirming the judgment and decree dated 1.12.1992 of the learned trial Court does not suffer from any illegality, jurisdictional error or material irregularity. Therefore this petition has no merits which is accordingly dismissed. No order as to cost.
(A.S.) Petition dismissed
PLJ 2006 Lahore 139
Present: Muhammad Sair Ali, J.
Sh. MUHAMMAD AYUB--Petitioner
versus
MUHAMMAD YOUSUF--Respondent
C.R. No. 1381 of 2003, decided on 14.1.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O.XXXVII, R. 3--Suit for recovery of specified amount on basis of negotiable instrument--Leave to appear and defend suit--Principles for grant of leave to defend suit--Court must consider facts disclosed in affidavit filed by defendant alongwith application for seeking leave to appear and defend suit--Where such facts showed plausible defence or substantial question of fact or law needing trial or investigation, defendant would be entitled to leave to defend suit--If defence set up was vague or un-satisfactory or doubtful or ingenuine, leave should not be refused altogether but defendant would be put on terms either to furnish security or to deposit amount claimed; or where allegations in affidavit were illusory or improbable not raising triable issue as to consideration for the Bill, leave can be refused by Court. [Pp. 141 & 142] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O.XXXVII, R. 3--Application for grant of leave to defend suit--Essentials--Facts and questions as disclosed in affidavit and application to such leave to appear and defend suit form basis for grant or refusal of leave and/or to allow leave upon terms or otherwise--Imposition of a term is Court's discretion to be exercised judicially upon facts of case before it--Such exercise, however, should not be arbitrary, perverse or unduly harsh so as to amount denial of defence to deserving defendant. [P. 143] B
(iii) Civil Procedure Code, 1908 (V of 1908)--
----O.XXXVII, R. 3--Leave to appear and defend suit--Imposition of conditions--Discretion of Court--Trial Court on evaluation of facts had concluded that petitioner's defence deserved trial and granted leave conditionally upon furnishing of surety bond for claimed amount--Trial Court, thus, exercised discretion to impose term by its evaluation of case circumstances--No interference was thus, warranted in impugned order. [P. 147] C
(iv) Civil Procedure Code, 1908 (V of 1908)--
----O.XXXVII, R. 3 & S. 115--Non-compliance of Court's order--High Court's offer to extend time for compliance of trial Court's order turned down by counsel for petitioners--High Court despite such refusal by counsel in its discretion extended time for fulfillment of conditional order of Court, failing which, however, trial Court would proceed with the case in terms of its impugned order of specified date. [P. 148] D
PLD 1999 Karachi 398; 1993 CLC 1291; 1984 SCMR 693; PLD 1963 SC 163; 1984 SCMR 963; PLD 1996 SC 49; PLD 1991 SC 976; PLJ 1985 Lahore 48 and PLJ 1992 SC 261 ref.
Mr. Muhammad Yousaf Kazmi, Advocate for Petitioner.
Mr. Hamid Ali Mirza, Advocate for Respondent.
Date of hearing: 24.11.2004.
Judgment
In the respondent's suit under Order XXXVII, Rule 2 of the Civil Procedure Code 1908 for recovery of Rs. 20,80,000/-, the petitioner as defendant was granted leave to appear and defend the suit but subject to the term of "submission of surety bond equal to the disputed amount up-till 04.07.2003" per order dated 27.6.2003 of the learned Additional District Judge Lahore.
Instead of submitting the requisite surety bond, the petitioner filed a review application dated 04.07.2003 to seek deletion of the above condition/term from order dated 27.6.2003. The learned Additional District Judge by order dated 08.07.2003 dismissed the review application. Aggrieved therefrom, the petitioner has filed the present civil revision on 18.7.2003.
The learned counsel for the petitioner referred to the cases of "Agrofoster (Pvt.) Ltd and 2 others v. Judge Banking Court No. 5, Karachi and another" (PLD 1999 Karachi 398), "Haji Abdul Wahid v. Hoechst Pakistan Limited and another" (1993 CLC 1291), "Ehsanul Haq Kiani v. Allied Bank of Pakistan Karachi and 2 others" (1984 SCMR 693), and "Fine Textile Mills Ltd. Karachi v. Haji Umar" (PLD 1963 S.C. 163) to contend that upon the findings of existence of a plausible and triable issue, the leave could not have been made subject to the condition of furnishing a security or surety bond. And that the refusal by the learned Addl. District Judge to exercise the powers of review against illegal condition was a material irregularity and that the order was reviewable.
Contrarily, the learned counsel for the respondent supported the impugned orders, also relying upon the case of Fine Textile Mills Ltd. to state that in an appropriate case, the condition could be imposed by the leave granting Court.
The question thus requiring determination in this case is as to whether upon finding on the basis of facts disclosed in the affidavit by the petitioner, of the existence of a plausible ground of defence and "prima-facie material question for grant of leave to appear and defend the suit," was the learned trial Court legally competent under Rule 3 of Order XXXVII CPC to subject the leave to the term of submission of surety bond through the impugned order dated 27.6.2003.
Significantly both the learned counsel for the parties have placed reliance upon the principles settled by the Hon'ble Supreme Court of Pakistan in the case of "Fine Textile Mills Ltd. Karachi v. Haji Umer" (PLD 1963 S. C. 163) holding that:
"In a suit of this nature where the defendant discloses upon his affidavits fact which may constitute a plausible defence or even show that there is some substantial question of fact or law which needs to be tried or investigated into, then he is entitled to leave to defend. What is more is that even if the defence set up be vague or unsatisfactory or there be a doubt as to its genuineness, leave should not be refused altogether but the defendant should be put on terms either to furnish security or to deposit the amount claimed in Court.
The principles upon which the provisions of Order XXXVII of the Code of Civil Procedure should be applied are not dissimilar to the principles which govern the exercise of the summary power of given liberty to sigh final judgment in a suit filed by a specially endorsed writ of summons under Order XIV of the Rules of the Supreme Court in England. One of such principles laid down by the Court of Appeal in the case of Kodak v. Alpha File Corporation (1) was that at the stage when leave to defend is sought "the Judge is not to try the action; he is to see that there is a bona fide allegation of a triable issue, which is not illusory; he need not be satisfied that the defence will succeed; it is enough that such a plausible defence is verified by affidavit."
It was further observed in this case that "where the allegations are not merely illusory, leave to defend should be granted." The allegations in the affidavit filed on behalf of the petitioner in the present case are by no means illusory". But the Supreme Court further found that "since the conduct of the appellant is not entirely free from suspicion", leave was to be subject to the condition of deposit of the entire amount of Rs. 90,000/- in the Court.
(i) The Court should consider the facts disclosed in the affidavit filed by a defendant alongwith application for seeking leave to appear and defend the suit;
(ii) If such facts show a plausible defence or a substantial question of fact or law needing trial or investigation, the defendant will be entitled to the leave to defend the suit;
(iii) If the defence set-up is vague or unsatisfactory or doubtful or ingenuine, leave should not be refused altogether but the applying defendant should be put on terms either to furnish security or to deposit the amount claimed; or
(iv) If the allegations in the affidavit are illusory or improbable not raising a triable issue as to the consideration for the Bill, leave can be refused by the Court.
While pronouncing the above principles, the Hon'ble Supreme Court of Pakistan reconsidered and revised the facts disclosed in the affidavit seeking leave and it was held that the defendant in that case had failed to show connection of the appellant i.e. Fine Textile Mills Limited with that of defendant's partnership business with the Chairman of the appellant company wherefor triable issues were found to have been raised regarding absence of consideration for the cheques and employment of fraud or misrepresentation by the plaintiff in obtaining these cheques. Despite the finding of existence of a "plausible defence" of a "substantial question of fact or law" or a "triable issue" in the case, the Supreme Court subjected the grant of leave to the term of cash deposit in the Court by the appellant (defendant in the suit) for the reason that "conduct of the appellant is not entirely free from suspicion."
In the present case also, the learned trial Judge on finding of existence of a plausible case, granted leave to the petitioner but made the leave, under circumstances of the case, subject to the submission of surety bond equal to the disputed amount.
The petitioner did not comply with the term but sought review of the same. The learned Additional District Judge dismissed the review application in absence of any ground for review. It was also observed by the learned Additional District Judge that leave to appear and defend the suit shall be deemed to have been dismissed in absence of compliance with the term and the case was fixed for the respondent plaintiff's evidence. However, the civil revision was admitted for the regular hearing on 21.7.2003 and proceedings before the learned Additional District Judge were stayed.
Reliance of the learned counsel for the petitioner on the case of "Ehsanul Haq Kiani v. Allied Bank of Pakistan Karachi" (1984 SCMR 963) is inapt. In this case, the only observation made by the Supreme Court was that leave can be granted by the Court even unconditionally i.e. without the compulsion of placing terms on the leave. However denial of leave to defend the suit and exparte decree therein by the Special Judge (Banking) was up-held by the Supreme Court.
The case of "Agrofaster (Pvt.) Ltd and 2 others v. Judge Banking Court No. 5 Karachi and another" (PLD 1999 karachi 398) also does not reinforce the case of the petitioner. In this case, the provisions contained in Section 10 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act 1997 and the equivalent provisions contained in Section 7 of the repealed Ordinance of Banking Companies (Recovery of Loans) Ordinance 1979 and Section 6 of the Banking Tribunals Ordinance No. LVIII of 1984, were considered and interpreted. It was particularly held at page 401 of this judgment by an Hon'ble Division Bench of Sindh High Court Karachi that:
"It is noted that the provisions of Order XXXVII C. P. C. did not apply to suit under Section 6 of said Ordinance. It was not necessary for defendant to apply under Order XXXVII C. P. C. for leave to appear and defend the suit."
The case in hand was not a case under the special banking jurisdiction provided for in the Banking Statutes. It was a suit filed on the basis of dishonoured cheques under the special provision of Order XXXVII of the Civil Procedure Code.
"That principle on which leave to defend conditionally or unconditionally is granted, are well-settled. The consensus of authorities is that so far the grant of leave conditionally or unconditionally is concerned, it is entirely within the discretion of the Court. "
Reference was made to the case of Haji Karim and another v. Zakir Abdullah (1973 SCMR 100) and to the case of Fine Textile Mills Ltd. (PLD 1963 SC 163) to observe:
"It will be seen that once the Court is satisfied that defendant ought to be granted leave to appear and to defend the suit, it has discretion to grant leave unconditionally or subject to such terms as it thinks fit .................................. unconditional leave might be granted where the defence appears to be incontrovertible. Now, in the present case, although the allegations are made against the plaintiff and the manner in which he manipulated the two promissory notes, yet signatures on these documents are not denied. Under Section 118 of the Negotiable Instrument Act, 1881, there is an initial presumption that a negotiable instrument is made, drawn, accepted or endorsed for consideration. Although this presumption is a rebuttable presumption, yet the onus is on the person denying consideration to allege and prove the same. In the present state of the record, we are not at all able to say that the presumption attaching to the two promissory notes under Section 118 aforesaid stands rebutted. In these circumstance, the High Court was clearly right in imposing terms on the two defendants."
In unreported decision dated 29.7.1991 of the Hon'ble Supreme Court in Civil Appeals Nos. 608-K, 609-K and 610-K of 1990 in National Security Insurance Company Ltd. and another v. Emirates Bank International and others, held as follows:
"The consensus of authorities seems to be that where a plausible case has been made out leave must be granted but the question whether it should be granted conditionally or unconditionally is entirely within the discretion of the Court. One of the grounds of which discretion can be exercised in favour of granting unconditional leave is that the defence pleas raised are incontrovertible and unimpeachable. Where the defence plea raised does not come up to this standard the trial Court is competent to exercise discretion in requiring the defendant to furnish security. Therefore, in such cases when such order is challenged, the appellant must establish that the discretion exercised by the Court is perverse, illegal, devoid of any reasoning and principles of justice."
"From the preceding discussion, it is quite clear that leave to defend in a suit instituted under Order XXXVII CPC shall be granted by the Court where the fact disclosed by the defendant on affidavit made out a case of shifting of onus on plaintiff to prove consideration for the instrument, which is the basis of the suit. Leave may also be granted on any other ground or facts which the Court considers sufficient to support the application for grant of leave meaning thereby that refusal to grant leave to defend is a rare phenomena, confined to cases where no defence at all is disclosed by the defendant. Ordinarily, the Court would not decline leave to defend even in cases wherein defence appears to be very weak or a sham one, as in such cases leave may be granted by the Court conditionally. The next important question which arises for consideration is, when leave to defend may be granted by the Court unconditionally. Grant of conditional or unconditional leave, is undoubtedly a matter within the discretion of the Court which is to be exercised keeping in view the facts and circumstances of each case. It is, however, neither possible nor advisable to lay down any hard and fast rule in this behalf. From a careful analysis of the provisions of Order XXXVII, Rule 3, CPC and review of the case law, it appears that when the facts disclosed by the defendant in the affidavit filed in support of his application for grant of leave to defend, are such that i becomes necessary for the plaintiff to prove consideration of the instrument, which is the basis of the suit, leave to defend may be granted unconditionally, provided the defence is found to be bona fide and the conduct of defendant is free from suspicion. Leave to defend may also be granted unconditionally, in cases where the execution of the negotiable instrument is denied by the defendant and from the material before the Court it is not possible for it to record a positive finding in this regard at the state of consideration of the application for grant of leave to defend. Similarly, where the claim in the suit on its face appears to be prima facie time barred and there is no material before the Court to infer that the defendant has acknowledged his liability to pay the time barred debt, leave to defend may be granted unconditionally. These instances are however, only illustrative and by no means exhaustive, as there may be other similar circumstances which may persuade the Court to grant leave to defend unconditionally. However, where the defence disclosed by the defendant in his affidavit filed in support of application for grant of leave to defend is found by the Court to be illusory or lacking bona fides or is intended to delay the proceedings or is based on allegation of vague and general nature relating to misrepresentation, fraud and coercion without any supporting material, leave may be granted on condition of either deposit of the amount claimed in the suit or on furnishing of security for the same or on such other terms and conditions which the Court may think fit."
In this case, reference was also made to the following observations from the case of "M/s Ark Industrial Management Ltd. v. M/s Habib Bank Ltd." (PLD 1991 SC 976):
"It would be improper to lay down on rule of thumb for the exercise of powers in matters of discretion vesting in a Court when even statute has left is unfettered. In view of the Legislative history of these provisions the overall object envisaged by the legislature was to provide for expeditious disposal of litigation involving commercial transactions of a particular nature by a summary procedure so that the defendant does not have the means open to exploitation in the ordinary procedure for trial of suits to prolong the litigation and to prevent plaintiff from obtaining an early decision by raising untenable and frivolous defences."
"....... It is the quality of the defence and not the extent of the security which should be the governing factor in considering the question of leave."
In this case, the Division Bench went through the record of the case and upheld the orders of the trial Court imposing the condition of pre-deposit of the entire suit amount as a condition for grant of leave to defend.
"The rule with regard to imposition of conditions and grant of leave is that unconditional leave cannot be granted in cases where the possibility of the defence being a sham one cannot be overlooked. On the same principle and indeed as an extension of it, I am of the opinion that the defendant would be entitled to unconditional leave where as regards to the plaintiff's claim, such as being frivolous, vexatious or otherwise untenable cannot be ruled out."
The rule that these emerges from the principles of law settled in the above precedents is that the facts and the questions as disclosed in the affidavit and application to seek leave to appear and defend the suit, form the basis for grant or refusal of the leave and/or to allow the leave upon terms or otherwise. Imposition of a term is the Court's discretion to be exercised judicially upon the facts of the case before it. Such exercise should of-course not be arbitrary, perverse or unduly harsh so as to amount denial of the defence to a deserving defendant.
In the present case, the petitioner in his affidavit and the leave application filed under Rule 3 of Order XXXVII CPC admitted that the parties had a business relationship whereunder the respondent plaintiff invested Rs. 21,60,000/- in cash with the petitioner defendant, though the respondent plaintiff in his plaint had pleaded to have loaned Rs. 20,80,000/- to the petitioner. The petitioner also admitted that the balance payable by him to the respondent plaintiff was Rs. 20,80,000/- and that cheques of Rs. 20,80,000/- were issued by him in favour of the respondent. The petitioner claimed issuance of these cheques "as security for the amount invested." The above cheques were admittedly dishonoured as not arranged for by the petitioner. And further that Shahid i.e. petitioner's son issued more cheques of Rs. 17,80,000/- in favour of the respondent in order to satisfy respondent's business creditor.
Execution, issuance and the dishonouring of the cheques thus ceased to be the litigated questions in the present case upon admission of the petitioner.
The learned trial Court as such reproducing the entire defence story of the petitioner in the impugned order concluded that the petitioner's defence deserved a trial and granted leave conditionally upon the furnishing of a surety bond for the suit amount. The learned trial Judge thus exercised discretion to impose a term by his evaluation of the case circumstances.
Examining the record to assess whether exercise of discretion of subjecting the leave to a condition by the learned Additional District Judge was improper or perverse of arbitrary, I find that the petitioner has not produced any document to support his plea of the investment by the respondent in business transaction. This plea in fact proves existence of a financial transaction between the parties by admitted payment of money by the respondent. Issuance of cheques totally amounting to Rs. 20,80,000/- by the petitioner is also a proof that the respondent's money was backed by the petitioner's cheques. The petitioner admitted the receipt of money claimed by the respondent plaintiff and the issuance of post-dated cheques forming subject-matter of the suit. The petitioner further admitted in his application/affidavit that upon dishonouring of the cheques issued by him, more cheques for a cumulative sum of Rs. 17,80,000/- were also issued by his son Shahid. The nature and the value of the defence plea terming these cheques as securities and the effect thereto can only be determined upon investigation in a trial particularly in the perspective of the admitted execution, issuance of cheques by the petitioner and dishonouring of the same.
Furthermore, blank and unsubstantiated oral pleas of the petitioner are not adequate at this stage to displace the initial presumption attached under Section 118 of the Negotiable Instruments Act that the negotiable instruments were made, drawn, accepted or endorsed for a consideration. The petitioner has yet to discharge his onus of proof that the cheques made and drawn by him were not for a consideration.
Under these circumstances, this Court is of the considered opinion that the learned trial Judge validly and reasonably exercised the discretionary powers vesting in him to grant leave to defend the suit conditionally upon the submission of surety bond equal to the disputed amount by the petitioner. The learned trial Judge was also justified in rejecting petitioner's application for review through the impugned order dated 08.07.2003. As such the impugned order do not deserve interference by this Court.
During the course of hearing of this civil revision, on Court's query and suggestion, the learned counsel for the petitioner clearly and categorically refused to accept extension in time to comply with the term/ condition as imposed by the learned Additional District Judge in the leave granting order dated 27.6.2003. The learned counsel for the petitioner firmly and categorically sated that even if this Court shows any indulgence of extending time which was not prayed for, the petitioner will not comply with the term of submission of surety bond as he cannot.
Under these circumstances and for the reasons stated above, this civil revision is liable to be dismissed.
The petitioner's learned counsel has though pertly denied to accept any equitable assistance of the Court yet this Court cannot overlook its duty to exercise restraint, indulgence and compassion towards the litigants who in this case are close relatives as well. The learned trial Judge protected the respondent plaintiff by demanding a surety bond for the suit amount from the petitioner defendant, who defaulted for no valid reason at all. Yet this Court is inclined to allow an opportunity of a trial to the petitioner defendant by granting further time uptill 31st January 2005 to the petitioner to furnish a surety bond for the suit amount as per order dated 27.6.2003 of the learned trial Judge. As a consequence thereof, order dated 08.07.2003 is modified by directing deletion of para 4 thereof relating to the returning of the written statement to the petitioner. However, if the petitioner fails to furnish the surety bond upto 31.01.2005, the said order dated 08.07.2003 shall remain in the field and the learned trial Court shall proceed to decide the suit expeditiously in accordance with law.
This civil revision is thus decided in above terms with no order as to the cost.
(A.A.) Revision dismissed.
PLJ 2006 Lahore 149
Present: Sh. Azmat Saeed, J.
ANJUMAN HIMAYAT-E-ISLAM through GENERAL ATTORNEY--Petitioner
versus
DR. FAROOQ HASSAN--Respondent
C.R. No. 686 of 2000, decided on 27.4.2005.
(i) Musslman Wakf Validation Act, 1913--
----Ss. 2, 3 & 4--Wakf-ul-Aulad--Word, "Aulad"--Meaning, scope and import of--Word, Aulad" in its meaning and import is not limited to immediate off spring i.e. children but can with reference to its context extend to descendants--Provisions of Ss. 2, 3 and 4 of Musslman Wakf Validation Act, 1913, however, are permissive in nature and permit a Muslim to create Wakf wherein benefit and management of property vests in family/children and descendants of Wakf till extinction of line of descendant, whereafter such property can be used for charitable purposes--Provision of S. 4 of the Act of 1913, cannot be interpreted to mean that all Wakf-ul-Aulad must necessarily be for the benefit of the family, and children and descendant of wakif till extinction of line of descendant. [P. 155] A & B
(ii) Muhammadan Law--
----Wakf--Intention of Wakf must be gathered and construed from Wakf deed itself. [P. 155] C
(iii) Muhammadan Law--
----Wakf deed--Menaing and import of--Wakf deed in question, leads of conclusion that upon demise of last Mutwali, Management of property would vest in Anjuman Himayet Islam (petitioner) and benefits therefrom were to be used for up keep of Muslim orphans. [P. 156] D
(iv) Muhammadan Law--
----Wakf--Validity--Transaction in question is wakf whose validity has been sanctified and upheld in Mubak Jan's case (AIR 1938 Lahore 453)--Validity thereof, has also been upheld by Supreme Court in its remand order dated 8.9.2004--Even no plea has ever been taken by respondent/plaintiff that wakf was not valid and transaction was in fact and is law a gift of usufruct of property. [Pp. 156 & 157] E
(v) Societies Registration Act, 1860--
----S. 6--Suit against validity of gift--Maintainability--Petitioner being registered society, Section 6 of Societies Registration Act, 1860, clearly provides that all litigation/legal proceedings must necessarily be initiated in name of the Principal officer or trustees and not in name of society--Suit against petitioner society had been filed by Estate Officer who had no authority to file the same--Courts below had rightly concluded that suit was no validly instituted--Even otherwise suit for injunction simplicitor was not maintainable and was rightly dismissed thus calling for no interference--Last Mutwali and beneficiary of wakf having died, petitioner would be entitled to management of property as Mutwali as per terms of wakf-deed. [P. 157] F & G
AIR 1938 Lahore 953; 1901 AC 495; PLD 1975 Karachi 26; PLD 1987 SC 145; 1994 SCMR 2213; PLD 1962 Karachi 620; PLD 1977 SC 75; PLD 1990 Lahore 432 and PLD 1997 SC 730 ref.
Sh. Ijaz Feroz, Advocate for Petitioner.
Dr. Farooq Hassan, Muhammad Ghani, Dr. Riaz-ul-Hassan Gillani and Sh. Noor Muhammad, Advocates for Respondent.
Dates of hearing: 25.2.2005, 1.3.2005, 2.3.2005 and 3.3.2005.
Judgment
The captioned Civil Revision is directed against the appellate judgement and decree dated 7.3.2000 whereby the appeal filed by the petitioner against the judgement and decree of the trial Court dated 8.10.1999 was dismissed.
The relevant facts giving rise to this Civil Revision are that on 30.12.1992, petitioner filed a suit for permanent injunction praying that decree be passed against the respondent restraining him from interfering in the management of the property in dispute which stood vested in the petitioner as Mutawali. It was alleged in the plaint that the property in dispute Bearing No. SE/36-R/81 situated at Railway Road Lahore was originally owned by Rehmat Ali Khan who vide an instrument in writing dated 29.7.1931 registered on 31.7.1931 created a "Wakf ul Aulad" and in terms whereof, it was alleged, that the executant Rehmat Ali Khan would be the first Mutawali, whereafter, upon his death Mst. Taj Begum his wife would be the second Mutawali. It was further stipulated that upon the demise of Mst. Taj Begum, Qamar Sultan and Daisy Dilara would be the next joint Mutawalis. The aforesaid Qamar Sultan and Daisy Dil Ara were the maternal grand children of the Wakif Rehmat Ali Khan being the children of his pre deceased daughter namely Rehmat Jehan. And at the time of the execution of the Waqf, said Qamar Sultan and Daisy Dilara were minors as stated in the Waqf deed. It was further alleged in the plaint that according to the Waqf deed, after the demise of Qamar Sultan and Daisy Dilara, the petitioner would be the Mutawali of the property in dispute. The respondent is the son of the last Mutwali namely Daisy Dilara who passed away in 1992, whereas Qamar Sultan is stated to have passed away earlier. In the above perspective, decree of permanent injunction was prayed for against the respondent restraining him from interfering in the management of the property in dispute.
defendant entered appearance, filed his written statement and took up the plea that in terms of admitted Waqf deed, after the demise of Daisy Dilara, the respondent would be the Mutwali and the management of the property would only vest in the petitioner upon the extinction of the line of descendant of the original Wakif namely Rehmat ALi Khan. Objection as to the maintainability of the suit were also raised and that the suit was not properly framed the relief of possession having not been claimed. It was further contended that the suit did not bear the requisite Court fee and had not been filed through the duly authorized representative of the petitioner.
The trial Court vide its order dated 21.2.1994 rejected the plaint. Being aggrieved, petitioner filed an appeal which was accepted by the First Appellate Court vide its judgment and decree dated 18.5.1994, and the case was remanded with direction to frame the issues and to decide the controversy afresh.
Consequently, in the post remand proceedings, the trial Court framed one issue qua the competence of the suit in its present form. It appears from the record that petitioner did not produce any evidence and ultimately the suit was dismissed by the trial Court by means of its judgment and decree dated 15.11.1994 which was challenged, but petitioner's appeal failed to find favour in the First Appellate Court and was dismissed vide judgement and decree dated 22.4.1997.
Petitioner filed CR No. 787 of 1997 which was accepted and by setting side the judgment and decrees of both Courts below dated 15.11.1994 and 22.4.1997, respectively the case was remanded to the trial Court for deciding the controversy afresh with direction that issues on all matter arising from the pleadings be framed.
In pursuance of the aforesaid order, the trial Court on 15.7.1999 framed 8 issues relating to the question of law and facts emanating from the respective pleadings of the parties, whereafter, the evidence was recorded and suit was again dismissed by way of judgement and decree dated 8.10.1999 holding that suit was not maintainable in its present form, inasmuch as, relief of possession had not been sought. It was also held that the plaint had not been filed by a duly authorized representative. It was however held that proper Court fee had been affixed on the plaint. In respect of the pivotal matter inter se the parties, it was held that petitioner was not the Mutwali of the property.
Petitioner assailed the said judgment and decree by way of filing an appeal, but the same was dismissed by the First Appellate Court vide its judgment and decree dated 7.3.2000 affirming the findings and conclusion of the trial Court on all issues, whereafter, petitioner filed a Civil Revision before this Court and in terms of order dated 26.10.2000, the same was dismissed by this Court holding that judgments and decrees of both the Courts below did not suffer from any irregularity and their finding could not be disturbed. And eventually, the petitioner invoked the jurisdiction of the Apex Court and vide judgment dated 8.9.2004, the case was remanded back to this Court with direction to decide all controversial issues on merit and that the parties would be at liberty to raise the questions relevant for the resolution of the controversy arising in the instant case.
It may be stated that during the course of the proceedings before this Court, an application (CM No. 87-C 2005) under Order 1 Rule 10 CPC was filed by one Syed Farooq Qamar for being impleaded as a party as the applicant therein claimed himself to be the legal heir of aforesaid Qamar Sultan, which was resisted by the respondent.
Learned counsels for the parties have been heard and the record appended with this petition perused.
The learned counsel for the petitioner contends that both the Courts below have failed to exercise jurisdiction vested in them by law and have committed material irregularity in the exercise of jurisdiction by misconstruing and misinterpreting the oral as well documentary evidence, and more particularly, the terms of the Waqf deed. It was next argued that the question as to the vesting of the management of the property in the petitioner as a Mutwali had been decided in the earlier round of litigation initiated by the collaterals of the respondent and the said proceedings had culminated in a DB judgment of this Court reported as Mst. Mubarik Jan Vs Taj Begum and other (AIR 1938 Lahore 453), wherein it was held that upon the death of aforesaid Qamar Sultan and Daisy Dilara, the management of the property would vest in the petitioner as Mutwali, hence, the two Courts below could not and should not have reopened the issue. It was next asserted that the Courts below have erroneously held that the aforesaid judgment and the observation made therein are merely obiter dicta hence not binding. It was further argued that the suit had been validly filed and correctly framed and the findings of the Courts below in these particular matter are against the law and facts.
Conversely, the learned counsel for the respondent as also the respondent who appeared in person, have contended that the decision of the Division Bench of this Court rendered in Mubarak Jan case, supra, was merely obiter dicta and not res judicata nor otherwise precluded this Court or the Courts below from interpreting the contents of the Waqf deed. It was next submitted that interpretation of the Courts below in this behalf was legally and factually justified and no exception could be taken thereto. It was also averred that the suit had not been validly instituted on behalf of the petitioner, and the person through whom the suit had been filed was not duly authorized to do so. And the findings of the two Courts below in this regard are in consonance with the settled provisions of the law on the subject. It was further submitted that the suit having not been properly framed, judgments of the Courts below are totally unexceptionable and the concurrent findings cannot and should not be interfered with.
It would be appropriate to advert to the contentions raised on behalf of the petitioner that the observations of this Court in Mubarak Jan's case is a complete answer to the defence taken by respondent and neither the Courts below nor this Court could go behind the observations emanating from the said judgment. In support of his contentions learned counsel relies upon the observation in the said case.
Rehmat Ali Khan executed a Waqf-alal-Aulad on 29th of July 1931, under which he was himself the first beneficiary, then his wife Taj Begum, defendant 1, then his two grandchildren, Daisy Dilara and Qamar Sultan, after which the property was to go to Anjuman Hamayat Islam.
There is no question that Wakf is valid. In fact in the present case is goes completely to the Anjuman Hamayat Islam after the death of the two grandchildren.
On the strength of the above observations, the learned counsel for the petitioner contends that it has been held that on the demise of Qamar Sultan and Daisy Dilara, the management of the property would vest in the petitioner as a Mutwali.
Whereas on behalf of the respondent, it has been stated that the aforesaid observations are not binding in the matter nor would operate as complete answer to his defence. In this behalf the counsel for the respondents has relied upon the following judgments:
1901 AC 495 QUINN v. LEATHEM, PLD 1975 Karachi 26 Messers Jamia Industries Ltd Karachi Vs Karachi Municipal Corporation, PLD 1987 Supreme Court 145 Pir Bakhsh and others Vs. The Chairman Allotment Committee and others, 1994 SCMR 2213 Trustees of the Port of Karachi Vs Muhammad Saleem, PLD 1962 (WP) Karachi 620 Nooruddin Vs the State, PLD 1977 SC 75 Ghulam Shabbir Vs Mst. Noor Begum and others, PLD 1990 Lahore 432 Syed Ghayyur Hussain Shah and another Vs Gharib Alam.
The learned counsel on the strength of the above judgments has drawn a distinction between res judicata, ratio decidendi and obiter dicta. He has also dilated upon the principles of stare dessis and the binding nature of the judicial precedent.
It is not the case of either of the parties that principles of res judicata as annunciated in Section 11 of the CPC is applicable to the facts and circumstances of the case. Furthermore the doctrine of estoppel per rem judicatam is also not attracted. The question of interpretation of a document (as in the instant case is the Wakf deed) is not a pure question of law.
The principle thus attracted in the instant case is that "... a case is only an authority for what it actually decides" as has been held by the House of Lords in the case reported as Quinn vs Leathem supra noted and quoted with approval of the Apex Court in the case reported as 1994 SCMR. 2213 supra.
The judgment in Mubarak Jan's case supra must necessarily be examined and interpreted on the touchstone and criteria set down in the said principle. The matter in issue in the said case was:
The short point in the appeal is whether the Waqf is valid. It was contended that as it was against the Mahomedan Law of inheritance and the principal heir had been excluded it was illegal according to Muhammadan Law.
It is thus clear and obvious that the issue as to when the management of the property would vest in the petitioner was not the matter directly or substantially in issue before this Court while adjudicating upon Mubarak Jan case supra, therefore, the contention of the petitioner that Wakf deed in question cannot be interpreted by this Court to examine and determine as to when or with the happening of what events, the management of the property would vest in the petitioner is not tenable. However, it may be added that the observations of this Court in Mubarak Jan case must be viewed and treated with great respect and a heavy burden lies upon the respondent on whose behalf it has been canvassed at the bar that a different view may be taken by this Court.
It was next contended by the learned counsel for the respondent that the Wakf deed in question has been interpreted by the two Courts below who have returned a concurrent finding to the effect that the management and benefit of the property shall vest in the petitioner after the extinction of the line of the descendant of Wakif and it is contended that this Court in its revisional jurisdiction should not interfere with the concurrent/consistent findings.
This Court vide its judgment dated 26.10.2000 upheld the judgement of the trial Court without itself interpreting the document and it was set aside by the Apex Court through its order dated 8.9.2004 whereby the case was remanded to this Court with a specific direction to decide all the issues/questions to be raised by the parties including interpretation of the Wakf deed and in view of the specific direction of the Apex Court in its remand order, the contentions raised on behalf of the respondent are untenable.
Dr. Riaz ul Hasan Gillani, Advocate one of the counsels of the respondent contended that the document in question "Wakf ul Aulad" which necessarily implies that the benefit and management of the property subject matter of the Wakf shall vest in the line of descendant of Wakf until its extinction. The learned counsel has relied upon Fatawa Alamgiri translated by Alama Maulana Syed Amir Ali Volume IV Pages 79 to 83 to contend that the exact words till the end of the line of the Wakif need not necessarily be employed to extend the vesting of the management and benefits of the property in the Wakif's descendant till extinction of the line of descendants.
It has been further contended that Aulad is not limited in its meaning merely to the offspring of the Wakif but would include the descendant how so ever low. Reference is also made to Mussalman Wakf Validation Act 1913, more particularly, Sections 2, 3 and 4 thereof.
There can ben no cavil with the argument that Aulad in its meaning and import is not limited to the immediate offspring i.e., the children but can with reference to its context extend to descendants. However, the provision of the Musslman Wakf Validation Act 1913, more particularly, Sections 2, 3 and 4 thereof are permissive in nature and permit a Muslim to create a Wakf wherein the benefit and management of the property vests in the family/children and descendants of the Wakif till the extinction of the line of descendant, whereafter, the property may be used for charitable purposes. This is clear and obvious from the tenor of Section 4 of Musslman Wakf Validation Act 1913 which is reproduced as hereunder:
No such wakf shall be deemed to be in valid merely because the benefit reserved therein for the poor or other religious, pious or charitable purpose of a permanent nature is postponed until after the extinction of the family, children or descendants of the person creating the wakf.
The above quoted provision of law cannot be interpreted to meant that all Wakf ul Aulad must necessarily be for the benefit of the family and children and descendant of Wakif till the execution of the line of descendant.
The relevant portion of the Fatawa Alamgiri relied upon by the learned counsel for the respondent is a series of example in which a Wakf ul Aulad has been considered to be valid or invalid, as the case may be, depending on the words employed. There is nothing in the said Fatawa to the effect that merely because it is a Wakf ul Aulad, it automatically extends to the descendants till the extinction of the line of descent. There is also nothing in the said treatise to the effect that where the Wakif states that after the demise of the named descendant, the benefit of the property will be used for charitable purpose. It must necessarily be read into the Wakf deed that future generations also derive benefit therefrom or are entitled to its management. The intention of the Wakif must necessarily be gatherered and construed from the Wakf deed itself. In this view of the matter, there is no other choice but to venture forth to gather the intention of the Wakif Rehmat Ali from Wakf deed dated 27.3.1931.
It was submitted on behalf of the respondent that true and faithful interpretation of the Wakf deed in question leads to the conclusion that the benefit and management of the property would vest in the petitioner, only if, Qamar Sultan and Daiy Dilara had died in their minority. In support of his argument, the learned counsel has relied upon the following portion of the Wakf Deed:
The word ( ) is being read as word ( ) which is disputed by the learned counsel for the petitioner. Be that as it may, we are not left at the mercy of the scribe alone, as the intention can be gathered from the undisputed portion of the Wakf deed including the succeeding portion of the para relied upon by the respondent which reads as follows:-
The intention of the Wakif is also evident from the following portion of the Wakf deed
It may be noted that Wakif in clear and unambiguous terms states that upon the demise of the Daisy Dilara and Qamar Sultan, the management and related benefits of the property would vest in Anjuman Himayat Islam. Furthermore, any term or words to the effect that the benefit or the management of the property would vest in the descendants of Qamar Sultan and Daisy Dilara are conspicuous by their absence.
The clear wording of the Wakf deed leads to an irresistible conclusion that upon the demise of the last Mutawali Mst. Daisy Dilara, the management of the property would vest in Anjuman Himayet Islam, and the benefits therefrom are to be used for the up keep of Muslim orphans. Similar are the observations of the Division Bench judgment of this Court in Mubark Jan case, supra, and the counsels for the respondent were unable to persuade this Court to take a contrary view.
Such an interpretation of the document is not only reasonable and logical but also in accordance with the traditions of the classic Islamic Law as is obvious from the following extract from Mahommedan Law by Syed Amir Ali 5th Edition by Raja Said Akbar Khan (Page 293):
"This is different from the case a Wakf on so and so and so and so, naming them specifically among his (the wakif's) children, and then on the poor, in such a case upon the death of any of the specific individuals so named, the share of such deceased would be for the poor, etc."
The learned counsel for the respondent at this stage attempted to argue that in fact the document is Umra Gift and in this behalf referred to (PLD 1997 Supreme Court 730) Abdul Hameed and 23 others Vs. Muhammad Mohiyuddin Siddique Raja and 3 others. I am afraid this contention cannot be accepted. Transaction in question is a Wakf whose validity has been sanctified and upheld in the Mubak Jan case, supra. The validity has also been upheld by the Apex Court in its remand order dated 8.9.2004. Even otherwise, no plea has ever been taken by respondent that the Wakf was not valid and the transaction was in fact and in law a gift of usufruct of the property. Hence, the condition is repelled.
Adverting to the maintainability of the suit, in this context suffice it to say that admittedly petitioner is a registered society, and Section 6 of the Societies Registration Act, 1860 clearly provides that all litigation/ legal proceedings must necessarily be initiated in the name of the principal officer or the trustees and not in the name of the society, as in the instant suit, which must necessarily fail. I am fortified in this view by the judgment reported as (1992 Karachi 54) Muntizma Committee, Al-Mustafa Colony (Regd) Karachi and 3 others Vs Director Katchi Abadies Sindh and 5 others. The suit had been filed through Azmat Ullah the Estate Officer of the petitioner. No authority in favour of Azmat Ullah has been produced in evidence. It has also been noticed that no document pertaining to the constitution of the society or identifying the persons authorized to initiate legal proceedings or to delegate such powers has been produced in evidence. Thus, the Courts below rightly concluded that the suit was not validly initiated. In addition thereto, the form of the suit is also dubious. In the facts and circumstances, the suit for injunction simplicitor is not maintainable. Relief of declaration and/or possession must necessarily should have been made. Thus, it is clear and obvious that the suit has neither been filed through a duly authorized representative nor is framed in accordance with law, hence not maintainable and liable to be dismissed.
That CM filed by the applicant referred to herein above is not maintainable. The petitioner filed a suit for permanent injunction raising a grievance only against the respondent and not the said applicant. The said applicant is neither necessary nor proper party. Even otherwise, the said application being palpably belated is bound to be dismissed
The upshot of the above discussion is that pursuant to the demise of Daisy Dilara the last surviving named Mutwali and beneficiary of the Wakf, the petitioner would inevitably be entitled to the management of the property as a Mutwali, and of course, benefits derived therefrom would be used for the up keep of Muslim orphans in line with the unambiguous intention of the Wakif. However, the suit from which civil revision arises has not been validly filed is liable to be dismissed.
Civil Revision dismissed in the terms enumerated above leaving the parties to bear their own costs.
(A.A.) Revision dismissed
PLJ 2006 Lahore 158 [Rawalpindi Bench Rawalpindi]
Present: Muhammad Akhtar Shabbir, J.
CH. MUHAMMAD ARSHAD and 4 others--Petitioners
versus
S.H.O. POLICE STATION FIA/SIU ISLAMABAD and 4 others--Respondents
W.P. No. 1066 of 2005, heard on 27.4.2005.
(i) Co-operative Societies Act, 1860--
----S. 43--Contravention of provisions of Co-operative Societies Act, 1860--Power to enquire into such matter--F.I.A. Authorities have neither function nor duty to enquire into matter of Societies--Such power has been invested exclusively on Registrar in terms of S. 43 of Co-operative Societies Act, 1860--Where election of Co-operative Society have been conducted without permission and information supplied to Registrar Co-operative Societies or fake election have been conducted, power in that regard vests in Registrar Co-operative Societies to take action in terms of S. 70-A of the Act 1860--No other Court or Authority would have jurisdiction to entertain or to adjudicate upon any such matter which is exclusively within jurisdiction of Registrar Co-operative Societies or Provincial Government--F.I.A. has no concern with procedure or contravention or violation of any provision of Co-operative Societies Act, 1860--Government or Registrar of Co-operative Societies or any other Authority empowered in that behalf can procedure initiate any legal action against Members or other Office bearers of such Society. [Pp. 162 & 164] A & B
(ii) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 420--Co-operative Societies Act, 1860, Ss. 43 & 40-A--Constitution of Pakistan, 1973, Art. 199--F.I.R. registered against office bearers of Housing Society under S. 420 P.P.C.--Contents of F.I.R. would show that accused named therein being office bearers of Co-operative Society concerned have cheated no one, rather they have made efforts to give benefit to its members--No member of Co-operative Society concerned has made any complaint against office bearers of Society in question--Provision of S. 420 P.P.C. was thus, not attracted--If office bearers of Society in question, have contravened any provision of the Act of 1860, Registrar of Co-operative Society or Provincial Government can take action against such persons--F.I.A. has no jurisdiction or Authority to take action against such persons--Even otherwise, no offence against office bearers of Co-operative Society concerned has been made out--High Court in its Constitutional jurisdiction is competent to interfere in such matters--F.I.R. registered against petitioners does not constitute any offence, therefore, the same was quashed--Case against officials of Government having been registered with mala fidely, illegally was also quashed. [Pp. 167 & 169] C, D & E
1994 PSC 168; PLD 2000 Lahore 421; PLD 1956 SC (Pak) 412; 1980 SCMR 402; PLD 1962 S.C. 402; 1990 ALD 291; 2000 SCMR 122 and 2000 PCr.LJ 888.
Ch. Mushtaq Ahmad Khan, Advocate for Petitioners.
Raja Iftikhar Javed, Standing Counsel for Federation with Malik Safdar Ali, Ch. Zulfiqar Ali, Deputy Directors, Safeer Hussain Shah & Liaqat Ali, Inspectors, FIA.
Date of hearing: 27.4.2005.
Judgment
Petitioners Nos. 1 to 4 are office bearers of Islamabad Co-operative Housing Society, Respondent No. 5. They have invoked the Constitutional jurisdiction of this Court for quashment of FIR No. 4 dated 26.3.2004 registered under Sections 420/409/109 PPC read with Section 5 (2) of the Prevention of Corruption At, 1947, at Police Station FIA/SIU, Islamabad.
Briefly stated the persecution story as per contents of the FIR is that during the course of an inquiry, it came to the knowledge of the FIA that Islamabad Co-operative Housing Society, Respondent No. 5 has been originally registered in the year 1988 vide Registration Certificate No. 313 and this Society could not launch any project and in October, 1997, the whole record was collected by the officials of Circle Registrar Co-operative Department, Islamabad, and the said Society was treated as dormant/dead since then. In August, 2003, M/s Muhammad Arshad son of Taj Din, Zohaib Najeeb son of Aamir Najeeb, Muhammad Rafique son of Mansab Dar, Khalid Waseem Khan son of Khan Muhammad, Mehdi Khan Shakir son of Muhammad Khan, Raja Muhammad Rafiq Khan son of Mir Zaman Khan Mahmood Akhtar son of Haji Karim Bux, Mahmood Ahmad son of Ch. Mir Muhammad and Liaquat Ali Butt son of Ghulam Ali Butt were interested in establishing a new Cooperative Housing Society but since a ban was imposed by the Department for registration of the new Cooperative Housing Society, they could not get registered a new Cooperative Housing Society. They with the help of Riaz Hussain Inspector Cooperative Societies Department, ICT, Islamabad, got control of the then dormant Islamabad Cooperative Housing Society unlawfully by holding its general body meeting on 28.8.2003 without the participation of previous office bearers or lawful members of the Society. During its unlawful meeting, the said persons were shown elected as President, Vice President, Secretary General, Finance Secretary, Joint Secretary and Executive members and Riaz Hussain Inspector submitted a false and fabricated report in their favour that the meeting had been attended by the lawful members. This new Society after its revival opened Bank Account No. 0110-5 with A.B.L. Stock Exchange Branch, Islamabad, on 8.9.2003 and started its membership while allowing registration to the genuine/original Islamabad Co-operative Housing Society in the year 1988. The terms and conditions of the Registration included that the area of operation was restricted to the Federal Territory of Islamabad. However, these persons unlawfully using the cover/registration of Islamabad Cooperative Housing Society deceitfully and fraudulently entered into an agreement on 16.9.2003 with M/s Leo International Islamabad for purchase of 3000-Kanals of land beyond the territory of ICT, Islamabad in Villages Qutbal and Hattar, Tehsil Fateh Jang, District Attock at excessive rates of Rs. 1,00,000/- per Kanal without the prior approval of the Registrar Cooperative Societies ICT. In the advertisement published in the newspaper, the site was deceitfully shown as Sectors E-20 and E-21, which Sectors do not exist in the CDA Master-plan. As a matter of fact, as per revenue record, the average sale/purchase rates of the land in the same locality during the last one-year were between Rs. 18,805/- to Rs. 30,479/- per Kanal. It further transpired during the enquiry that for purchase of the same land, the present Management Committee had earlier contacted the concerned landowners directly who demanded the rate of Rs. 70,000/- per Kanal while the Society was willing to pay Rs. 60,000/- per Kanal to them. However, these negotiations were dropped mysteriously and on 19th of September, Malik Din, Assistant Registrar Cooperative Societies, ICT, Islamabad, contacted the said landlords and succeeded in arranging an agreement for sale of the said land at the rate of Rs. 65,000/- in favour of M/s Leo International Islamabad, which is a registered partnership concern owned by Mrs. Nusrat Sharif and Muddasar Ali, wife and brother-in-law respectively of the aforesaid Assistant Registrar Cooperative Societies ICT, Islamabad. Thus, in this deal M/s Leo International with the active connivance of the Managing Committee of the Society and without any investment of their own gained unlawful financial benefit to the extent of Rs. 105-Millions (3000 Kanals, Rs. 35,000/-) at the expense of the general public. The Society has already paid Rs. 170-Millions to M/s Leo International without obtaining any Bank-guarantee. Mutation for 639 Kanals and 14-Marlas of land has been proposed in the revenue record in the name of the Society on 23.9.2003, which has, however, yet to be approved by the Tehsildar.
Notices to the respondents were issued for 27.4.2005 and arguments of the learned counsel for the parties have been heard. The allegation against the petitioner/Islamabad Co-operative Housing Society is that with the connivance of Riaz Hussain Inspector Cooperative Societies Department, the present office-bearers of the Society got revived the then dormant Islamabad Cooperative Housing Society by holding its general body's meeting and that through M/s Leo International got purchased land for the Society from the landowners at the rate of Rs. 65,000/- per Kanal. So far as the allegation regarding revival of the old/dead Society, the Government is empowered under Section 4 of the Co-operative Societies Act, 1925, to appoint a person to be Registrar of Co-operative Societies for the Province or any portion of it, and may appoint a person or persons to assist such Registrar) and may, by general or special order, confer on any such person or persosn all or any of the powers of a Registrar under this Act. Under sub-section (4) of Section 3 of the Cooperative Societies Act, Housing Society is defined as under:
"Housing Society" means a Society formed with the objection of providing its members with dwelling houses on conditions to be determined by its bye-laws."
A list of such Societies so classified under Section 3 shall be published annually in the official Gazette and a Housing Society may be registered. Subject to provisions hereinafter contained in Section 5 of the Act, a Society which has as its object the promotion of the economic interest of its members in accordance with cooperative principles or a Society established with the object of facilitating the operation of such a society, may be registered under this Act with or without limited liability and no Society other than the Society of which a member is a Society, shall be registered under this Act, which does not consist of at least ten persons above the age of eighteen years and, where the object of the Society is the creation of funds to be lent to its members and for registration of the Society at least ten persons qualified in accordance with the requirements of Section 7 sub-section (b) may apply through an application accompanied by a copy of the proposed bye-laws of the Society and the persons by whom or on whose behalf such application is made shall furnish such information in regard to the Society, as the Registrar may require and a certificate of registration signed by the Registrar shall be conclusive evidence that the Society therein mentioned is duly registered unless it is proved that the registration of the Society has been cancelled. A special general meeting may be called at any time by a majority of the Committee and shall be called within one month on the requisition in writing of one-fifth of the members of the Society or at the instance of the Registrar and a Society may, by a resolution of a general meeting and with the approval of the Registrar, change its name but such change shall not affect any right or obligation of the Society or of any of its members, or past members and any legal proceedings pending may be continued by or against the Society under its new name. It has further been provided in the ibid. Act that any two or more Societies may, with the approval of the Registrar by a resolution passed by a three-fourth's majority of the members present a a special general meeting of each such Society held for the purpose, amalgamate as a single Society, provided that each member has had clear fifteen day's written notice of the resolution and the date of the meeting. Such an amalgamation may be effected without a dissolution, or a division of the funds, of the amalgamating Societies and any Society may by a resolution passed in accordance with the procedure laid down in sub-section (1) transfer its assets and liabilities to any other Society which is prepared to accept them but subject to three months notice to the creditors of both or all such societies.
The petitioner/Islamabad Cooperative Housing Society was already registered with the Registrar Cooperative Societies an it was revived by its members by passing a resolution in its general meeting and electing the new office bearers, who have taken the responsibility in the interest of the members of the Society to reactivate the funds of the Society and to establish a housing colony for the benefit of its members.
As alleged by the complainant/FIA, the allegation against the Society is that without convening the general meeting of the previous members of the Society, the election has been conducted and the persons nominated in the FIR have been elected as office bearers and the previous office bearers or lawful members of the Society have not been heard. It is not the function and duty of the FIA Authorities to enquire into the matters of the Societies. This power has been invested exclusively on the Registrar as provided in Section 43 of the Cooperative Societies Act. The provisions of Section 43 are reproduced below for ready reference: -
"S. 43. Inquiry by Registrar.---(1) The Registrar may of his own motion by himself or by a person duly authorized by him in writing in this behalf hold an inquiry into the constitution, working and financial condition of a Society.
(2) The Registrar shall hold such an inquiry as is contemplated in sub-section (1) of this section:--
(a) on the requisition of Society duly authorized by rules made in this behalf to make such requisition in respect of one of its members, such member being itself a Society, (b) on the application of a majority of the Committee of the Society, (c) on the application of 1/3rd of the members of the Society.
(3) All officers and members of the Society whose affairs are investigated shall furnish such information in their possession in regard to the affairs of the Society as the Registrar or the person authorized by the Registrar may require.
(4) The result of any inquiry under this section shall be communicated to the Society whose affairs have been investigated."
(i) acts in a manner prejudicial to the interest of the Society or its members; or
(ii) has incurred any of the disqualifications or has ceased to possess any of the qualification for being an officer provided by the Act, rules or bye-laws; or
(iii) has committed an act in respect of which the Registrar is empowered to take an action under Section 50-A.
(2) An order under sub-section (1) shall not be passed without giving to the concerned officer a reasonable opportunity to being heard."
(1) Where, in the course of the winding up of a Society it appears that any person who has taken part in the organization or management of the Society or any past or present chairman, secretary, member of the managing committee or officer of the Society has misapplied or retained or become liable to accountable for any money or property of the Society or has been guilty of misfeasance or breach of trust in relation to the Society [or, where the Society is acting under sub-section (4) of Section 34 as agent of the financing bank, has made any payment contrary to the instructions of the financing bank] the Registrar may, on the application of the liquidator of any creditor or contributory, examine into conduct of such person and make an order requiring him to repay or restore the money or property or any part thereof respective with tinters at such rate as the Registrar thinks just or to contribute such sum to assets of the Society [or of the financing bank] by way of compensation in regard to the misapplication, retainer, misfeasance or breach of trust as the Registrar thinks just.
(2) This section shall apply notwithstanding that the act is one for which the offender may be criminally responsible."
(a) Default by a Society officer or member. --- A Society with a working capital of Rs. 50,000/- or more or an officer or member thereof, fails without any reasonable excuse to give any notice, send any return or document, do or allow to be done anything which the Society, officer or member is by this Act, [or rules made thereunder] required to give, send, do or allow to be done; or
(b) Willful neglect or default by a Society, etc. --- A Society or an officer or a member thereof willfully neglects or refuses to do any act or to furnish any information required for the purposes of this Act [or rules made thereunder] by the Registrar or other person duly authorized by him in writing in this behalf; or
(c) Willfull furnishing of false information. --- A Society or an officer or member thereof, willfully makes a false return or furnishes false information; or
(d) Disobedience of summons, requisition or order. --- Any person willfully or without any reasonable excuse disobeys any summons, requisition or lawful written order issued under the provisions of this Act [or rules made thereunder] or does not furnish any information lawfully required from him by a person authorized to do so under the provisions of this Act [or rules made thereunder]."
(1) Notwithstanding anything provided in any other law for the time being in force, but save as expressly provided in this Act:--
(a) no Court or other authority whatsoever shall have jurisdiction to entertain, or to adjudicate upon, any matter which the Provincial Government, the Registrar or his nominee, any arbitrator or liquidator, a Society, a financing Bank, a Cooperative Bank or any other person as empowered by or under this Act, or the rules or bye-laws framed thereunder, to dispose of or to determine."
The allegation against the Society is that without convening the general meeting of the previous members of the Society, the election has been conducted and the persons nominated in the FIR have been elected as office bearers. If it is so without permission and information supplied to the Registrar Cooperative Societies, the election has been conducted by the members of the Society or that no election has been conducted and the said persons have claimed to be the officer bearers on the basis of fake resolution of the Society, it can be termed as contravention of the provisions of the Act. The power in this regard has been conferred on the Registrar Cooperative Societies to take any action against the members or the officer bearers of the Society as provided in clause (a) of sub-section (1) of Section 70-A of the Act, which provides that no other Court or other Authority shall have jurisdiction to entertain, or to adjudicate upon any matter which the Provincial Government or the Registrar or his nominee etc is empowered by or under this Act or the rules or bye-laws framed thereunder. It means that the FIA Authorities have no concern with the procedure or contravention or violation of any provisions of the Cooperative Societies Act. It is within the exclusive competence of the Government or the Registrar or any other Authority empowers in this behalf to proceed or initiate any legal action against the members or office bearers of the Society.
The other allegation against the members of the petitioner/Islamabad Cooperative Housing Society that they have misappropriated or made embezzlement of the funds of the Society by purchasing the land on higher rates than the rates prevailing in the market is concerned, the answer is provided in Section 409 of the PPC and this Court has to determine, as to whether the provisions of the said section are attracted to the present case or not. This section reads as under:-
"S. 409. Criminal breach of trust of public servant, or by banker, merchant or agent.--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
"Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property dishonestly, misappropriates or convicts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust or willfully suffers any other person so to do, commits "criminal breach of trust."
According to the prosecution, the petitioner/Islamabad Cooperative Housing Society through M/s Leo International purchased the land for establishing a Cooperative Housing Society for benefiting the members of the Society and the land purchased has been transferred in the name of the Society as a whole and not in the name of any individual or collectively in the name of any person or members of the Society. No property was previously entrusted with the members of the Society and according to the petitioner, no dishonest misappropriation or conversion to the use of any property by the persons name in the FIR has been made in violation of any direction of law.
The following are the essential ingredients of criminal breach of trust:--
(a) Entrustment;
(b) Dishonest misappropriation or conversion to his own use in whom confidence reposed;
(c) Dishonest use or disposal of the property in violation of the direction of law;
(d) Dishonest use or disposal of property in violation of any legal contract.
Reference in this context can be placed to the case of 1994 PSC (Cr) 768 and Muhammad Yaqoob Vs. Senior Superintendent of Police, Gujranwala and 2 others (PLD 2000 Lahore 421).
To establish the charge of criminal breach of trust, the prosecution must prove not only entrustment of the property but also that the accused dishonestly misappropriated the property. Even absence of money is not sufficient to establish the said offence, as laid down in the cases of Shakir Hussain Vs. The State (PLD 1956 Supreme Court (Pk.) 417), Nadir Shah Vs. The State (1980 S.C.M.R. 402) and Mir Ahmad Vs. The State (PLD 1962) Supreme Court 489). When no such evidence is available on record, the proceedings against the accused are liable to be quashed as laid down in the case of Muhammad Naeem Vs. The State (1990 ALD 291 (2). To establish and substantiate the charge under Sections 406 and 409 PPC mensren is the requirement of the offence under the said section. In the present prosecution case , this important ingredient is missing.
The fault of the petitioners is that they have given a new life to a dead or dormant Society, they did not use the property for their own benefits but for the benefits of their members, who have acquired the membership of the Society since the year 1988 and since then have been waiting for any benefit or establishing of a Housing Society for them.
The other offence added in the FIR is that Section 420 PPC which enshrines as under: -
"S. 420. Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable or being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
"Cheating. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property or intentionally induce the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission caused or is likely to cause damage or harm to that person [or any other person] in body, mind, reputation or property, is said to "cheat".
From the perusal of the FIR, it is crystal clear that the office bearers of the petitioners, Islamabad Cooperative Housing Society, have not cheated any person intentionally nor they have caused any wrongly loss to its members, rather they have made efforts to give benefits to its members and up-till now no member of the Society, whether new or old, have made any complaint to the Registrar Cooperative Societies or any competent Authority against the petitioner/Islamabad Cooperative Housing Society for dishonestly inducing them to deliver any property to any person or to make, alter or destroy the whole or any part of a valuable security. In the present case, the prosecution in order to attract Section 420 PPC was bound to prove that the accused has cheated the complainant and that he, by such cheating has induced the member to deliver any property to any person.
Another astonishing feature of the case is that the case has been registered on the basis of an inquiry conducted by Safir Hussain Shah, Inspector/SHO, FIA/SIU, Islamabad. Learned Standing counsel for the Federation representing the F.I.A., Mr. Safir Hussain Shah, Inspector, and Liaquat Ali, Inspector when confronted to establish the provisions of Sections 409 and 420 PPC for its application to the case of the petitioners could not respond.
If any irregularity or illegality in reactivating/making the Society to function has been committed by the present office bearers of the Society, it is the duty and powers of the Provincial Government or the Registrar Cooperative Societies or any other Authority empowered under the Cooperative Societies Act and the F.I.A. Authorities have no jurisdiction or right to interfere with the affairs of the Cooperative Housing Societies. On the basis of the present prosecution story, a case FIR No. 1/2004 dated 14.2.2004 had also been registered against the partner M/s Leo International, a third party who played an active role in purchasing the land for the aforesaid Society. This FIR was challenged through Writ Petition No. 1983 of 2004 seeking quashment of the said FIR, wherein report and parawise comments were called for and Mr. Kishwar Kiani, Assistant Director FIA appeared in Court in response to the notice issued by the High Court who stated to the effect that the aforesaid FIR against Mst. Murat Sharif and Mudassar Ali has been cancelled. It would mean that the FIA/respondents failed to establish the offence of embezzlement and delivery of property by the members of Society on inducement of the writ petitioners and on the same story, the instant FIR has been registered against the office bearers of Islamabad Cooperative Housing Society.
As alleged by the prosecution, Malik Din Assistant Registrar Cooperative Societies intervened in the bargain and was successful in obtaining the property from the land owners in the name of M/s Leo International, which was a partnership concern of the petitioners society. Whoever, being a public servant, and being legally bound as such public servant not to engage in trade, engages in trade, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both as provided in Section 168 PPC. In the subsequent Section 169, it envisages that whoever, being a public servant, and being legally bound as such public servant not to purchase or bid for certain property, purchases or bids for that property either in his own name or in the name of another, or jointly, or in shares, with others shall be punished with simple imprisonment for a term which may extent to two years, or with fine or with both; and the property, if purchased shall be confiscated. The main ingredient of Section 169 is that a public servant if he purchases or bids some property either in his own or in the name of another, or jointly, or in shares which would mean that he acted for his own benefit. This argument is further clarified by the words used in Section 168 PPC. The said public servant Malik Din Assistant Registrar Cooperative Societies has neither engaged in any trade or business, nor has used the property for his own use in his name or in the name of another person. Had he intervened in the bargain with the owners of the properties of the village land holders and the Leo International? The Leo International has purchased the land through Malik Din for its supply to the petitioner Islamabad Cooperative Housing Society, which is sufficient proof of the factum that the said public servant did not avail of any benefit out of the said transaction made between the land owners and the Leo International.
From the contents of the F.I.R. no other allegation against the said public servant has been made out. The provisions of Sections 420/409/ 109 PPC are also not attracted to him.
So far as the case of Riaz Hussain Inspector Cooperative Society is concerned, the only allegation against him is that he made a false report to the effect that the meeting of the Members of the Islamabad Co-operative Housing Society, the petitioner was held while it was actually not held and in the meeting the Office bearers were elected. It is not covered within any section, provisions of Pakistan Penal Code. At the most, it would be violation of the provision of Co-operative Societies Act and if it is so, the Registrar Co-operative Society or any other Authority empowered under the Act are competent to proceed against him departmentally.
From the above discussion, no offence against Malik Din Assistant Registrar Cooperative Societies and Riaz Hussain, Inspector under Section 420/409/109 PPC read with Section 5 (2) of the Prevention of Corruption Act, 1947 is constituted.
The High Court in its Constitutional jurisdiction is very much competent to interfere with the matters of public functionaries, Police, F.I.A. and other agencies and their actions are not immune from judicial scrutiny of the High Court. The High Court in its Constitutional jurisdictional can quash the FIR, if it is based on malafide or is a case of no evidence. Reliance in this context can be praised to the cases of Miraj Khan Vs. Gul Ahmad and 3 others (2000 S.C.M.R. 122) and Sikandar Hameed v. Deputy Commissioner Vehari and others (2000 P.Crl.L.J. 888).
For what has been stated above, it is established that the case against the petitioners and said two public servants has been registered by the F.I.A. malafidely and there is no material on the file of this Court to constitute the offences mentioned in the F.I.R. against them.
For the foregoing reasons, this writ petition is accepted and F.I.R. No. 4/2004 dated 26.3.2004 registered under Section 420/409/109 read with Section 5 (2) of the Prevention of Corruption Act, 1947 at Police Station FIA/SIU, Islamabad, is declared to have been registered with malafidely, illegally and of no legal effect, therefore, it is quashed.
(A.A.) F.I.R. quashed
PLJ 2006 Lahore 169 (DB) [Multan Bench Multan]
Present: Ijaz Ahmad Chaudhry and Maulvi Anwarul Haq, JJ.
PROVINCE OF PUNJAB through COLLECTOR RAJANPUR and 2 others--Appellants
versus
MUHAMMAD ZAMIR KHAN and 5 others--Respondents
R.F.A. No. 94 of 1994, heard on 30.3.2005.
(i) Land Acquisition Act, 1884 (1 of 1884)--
----S. 23--Compensation for acquired land--Mode to determine--Referee Court rightly relied upon documentary evidence on record which clearly showed that land in vicinity of land in question, had been sold at the rate of Rs. 6000/- or more per marla--Documentary evidence produced by respondents also finds support from oral evidence--Fact that reference was barred by 10 days would have no effect is as much as, reference cannot be directly filed in Court and the same has to be filed before Land Acquisition Collector who has to send such reference to Referee Court--Time-barred reference thus, could not be dismissed for that reason and provides no ground for interference. [P. 173] A
(ii) Land Acquisition Act, 1884 (1 of 1884)--
----S. 23--Civil Procedure Code (V of 1908), O.XLI, R. 27--Additional evidence, production of--Essentials--No reason has been given by appellants as to why said evidence which they intend to produce, could not be produced before trial Court--Sufficient cause has to be shown for producing additional evidence at appellate stage, but no such cause has been shown--Application for permission to produce additional evidence having no force, was dismissed--Impugned judgment being based on cogent evidence does not warrant interference and was thus, maintained. [P. 173] B
AIR 1991 SC 21 and PLD 1988 SC 32 ref.
Sh. Ashraf Qureshi and Mr. M. Yousaf Syed, Advocates for Appellants.
Rana Luqman Ali Khan and Malik Muhammad Tariq Ranjwana, Advocates for Respondents.
Date of hearing: 30.3.2005.
Judgment
Ijaz Ahmad Chaudhry, J.--This Regular First Appeal has been filed against the judgment dated 1.9.1994 passed by the learned Senior Civil Judge Rajanpur, whereby application filed by the respondents under Section 18 of the Land Acquisition Act, 1894, has been accepted with the direction that the Land Acquisition Collector should have awarded compensation to them at the rate of Rs. 5,000/- per marla and for setting aside the said judgment/award and to uphold the award dated 24.5.2002 announced by the Land Acquisition Collector (GSC) WAPDA, Lahore.
The brief facts of the case are that in order to construct 132 X.V. Grid Station Jampur, 74 kanals 8 marlas of land situated in Mauza Basti Gudden, Tehsil Jampur District Rajanpur was acquired. Notification under Section 4 of the Land Acquisition Act, 1894 was issued on 24.1.1990 in the Punjab Gazette. The Land Acquisition Collector was appointed by the Government of the Punjab to complete the process according to the notification under Section 17 (4) and under Section 6 of the Land Acquisition Act, land measuring 77 kanals 10 marlas was acquired on the request of the WAPDA. The award was announced by the Land Acquisition Collector for the said land on 24.5.1992 and the possession of the land was also taken on 20.2.1992 while allowing compensation to the land owners fixed at the rate of Rs. 550/- per marla and also allowed Rs. 2,25,000/- as compensation of trees etc. The respondents being aggrieved of the said award moved an application under Section 18 of the Land Acquisition Act, 1894 for the enhancement of the payment before the learned Senior Civil Judge/Referee Court. In the reference it was stated by the respondents that the property was situated on Highway Road at a distance of 2 kilo-meter from the office of Sub Division Jampur; that the property falls within the abadi; that the Degree College for Boys, Microwave Station, Middle School for Boys and Ghazali Industries are situated at a distance of 500/700 feet that several plots were already sold or being sold for residential and commercial purposes and houses were also constructed near the land and that it was the best locality in the town. The market value of the land was claimed as Rs. 15,000/- per marla and that the award at the rate of Rs. 550/- was inadequate and against the norms of justice.
The appellants submitted the written statement while denying the averments of the reference and claimed that the Land Acquisition Collector had fixed the correct rate of Rs. 550/- per marla on the basis of "Oust Padawar" and was sustainable. The controversial pleadings of the parties necessitated the framing of following issues:--
Whether the reference was filed in the wrong form?
Whether the reference was filed with time?
Whether the Land Acquisition Collector had no jurisdiction to refer the time barred objection to this Court?
Whether the reference is liable to be rejected under Order 7 Rule 11 CPC?
Whether the award has become final under Section 12 of the Land Acquisition Act? If so with what effect?
Whether the compensation awarded by the Land Acquisition Collector was inadequate? If so what was the correct compensation for the suit land?
Relief.
To prove the case the respondents produced Muhammad Mahmood one of the respondents as PW. 1, Muhammad Zamir Khan one of the respondents as PW. 2 and Rafique Hussain as PW. 3 besides copies of the sale-deeds Ex. P. 2 to Ex. P. 17, copy of Jamabandi for the year 1988-89 Ex. P.18 and copy of Aks Shjara Ex.P.19 and closed their evidence. On the other hand the appellants produced Saeedul Hassan Qanungo as RW.1, Shahab-ud-Din Patwari RW. 2 and Jabbar Ahmad RW. 3 who was SDO Civil Scarp Electrician WAPDA D.G. Khan and closed the defence evidence. Documents Ex. R. 1 to R. 5 were also produced. The learned Senior Civil Judge/Referee Judge has increased the price of the land at the rate of Rs. 5,000/- per marla vide judgment dated 1.9.1994. Hence this appeal.
Learned counsel for the appellants contends that sufficient evidence was produced on the record through the statements of official witnesses RWs. 1 to 3 supported by the documentary evidence R. 1 to R. 5 and the compensation was correctly fixed, which was not inadequate and the learned trial Court has passed the impugned judgment on surmises and conjectures; that the compensation so awarded is very excessive which is not in consonance with the price of the land at the time of acquiring the land through notification under Section 4 of the Land Acquisition Act; that the appellants have also filed an application for additional evidence which may be allowed in the interest of justice; that the reference being barred by ten days was liable to be dismissed; that the land was agricultural situate at a distance of 3 kilo-meter from urban abadi surrounded by abadi deh and was not used for commercial purposes but the learned trial Court has failed to appreciate the evidence on record while passing the impugned judgment which is against the facts and law. Relies upon "AIR 1991 S.C. Page 2" in support of his contentions. It is lastly contended that the impugned judgment may be set aside and the rate fixed by the Land Acquisition Collector be restored.
Learned counsel for the respondents on the other hand supports the impugned judgment and draw our attention to the documentary evidence produced before the Land Acquisition Collector and the learned trial Court and prays for dismissal of this appeal.
We have heard the arguments of the learned counsel for the parties and also perused the record as well as the award announced by the Land Acquisition Collector. The award shows that the claim of the respondent was that the value of the land was Rs. 10,000/- per marla and not Rs. 550/- per marla as approved by the Commissioner D.G. Khan Division and they also claimed that the possession was delivered to the Land Acquisition Collector on 24.4.1991 when the construction work was also completed by the WAPDA. The trees were standing on the land and were damaged. The Land Acquisition Collector inspected the site and found that the land under acquisition was costly being situated near the Factories, other abadi and on mettled road (National Highway) which leads from D.G. Khan to Jampur. The sale deeds of Muhammad Amir etc. were produced by the land owners and were examined but he fixed the price of the land at the rate of Rs. 550/- per marla without any cogent reason for discarding the evidence produced by the respondents. PW. 1 and PW. 2 remained consistent on the point that the land is situated at the National Highway coming from D.G. Khan to Rajanpur. A Degree College was constructed about 400/500 away from the land besides a Microwave Station and Ginning and Oil Factories and in front of the Degree College there were residential colonies and around the said land there was a hotel. It was also claimed that the price of the land was about Rs. 6,000/7,000/- per marla which was situated 2 kilo-meter away from Rajanpur on the main road. Similar type of statement was made by PW. 3 and during cross-examination nothing could be gained by the appellants from these witnesses.
On the other hand Saeedul Hassan Qanungo appeared as RW. 1 and produced "Oust Beh" for one year prepared by Patwari Halqa. The said Halqa Patwari who prepared Ex. R. 1 was not produced though according to RW. 2 Shahab-ud-Din Patwari Halqa he was available and he could be produced. During cross-examination RW. 1 has admitted that he had not seen the acquired land and showed his ignorance about the exact location of the land. RW. 2 Shahab-ud-Din Patwari Halqa stated that Rab Nawaz Patwari and Qazi Ijaz Ahmad Qanungo who prepared Ex.R. 1 and Ex.R. 2 were alive, but they were not produced by the respondents. RW. 2 during cross-examination admitted that the land was situated on the National Highway and in front of the acquired land the respondents had sold their land for commercial and residential purposes. According to him the residential area started at a distance of 6/7 acres from the acquired land. RW. 3 also admitted that Microwave was 6/7 acres away from the acquired land; that the said land was situated within the limits of Chungi; that the land of other villages Basti Rindan and Basti Gudden and the acquired land was of the same nature and value; that in Basti Rindan some land was sold at the rate of Rs. 10,000/- per marla; that according to contents of Ex.R. 2 some of the land was sold at the rare of Rs. 6,000/- per marla; that the land in Ex.R. 2 also included agricultural land; and that some of the land in village Gudden was sold at the rate of Rs. 5,000/-
The documentary evidence produced by the respondents fully supports that the land in the vicinity was sold at the rate of Rs. 6,000/- or more that Rs. 6,000/- per marla and the learned trial Court has rightly relied upon the said documentary evidence which was proved by PWs 1 to 3 and it also finds support from the statement of RW. 2 produced by the appellants. The assessment is supported by the evidence on the record and the oral evidence can also be considered for the fixation of the price as laid down by the Supreme Court of Pakistan in Malik Aman and others Vs. Land Acquisition Collector and others (PLD 1988 S.C. 32). The contention of the learned counsel for the appellants is that the reference was barred by 10 days. It has been repeatedly held by this Court as also the Supreme Court of Pakistan that if reference is barred by time, it will have no effect as the reference cannot be directly filed in the Court and has to be filed to the Land Acquisition Collector who has to send the same to the Referee Judge. the time barred reference cannot be dismissed for this reason and we do not find it a ground for interference as well.
During the pendency of this appeal C.M. No. 1101/C-94 was filed by the appellants for placing on record certain documents as additional evidence. No reason has been given by the appellants that why the said evidence which they intend to produce could not be produced before the learned trial Court. This Court as also the Supreme Court of Pakistan have repeatedly held that sufficient cause has to be shown by the party for producing additional evidence at the appellate stage but no such cause has been shown and this application having no merit is dismissed.
For the foregoing reasons we are satisfied that the impugned judgment is based on cogent reason, which is supported by the evidence on the record and calls for no interference. Hence this appeal having no merit is dismissed with no order as to costs.
(A.A.) Appeal dismissed.
PLJ 2006 Lahore 174 [Rawalpindi Bench Rawalpindi]
Present: Muhammad Sayeed Akhtar, J.
SONIA ABID--Petitioner
versus
THE PRINCIPAL, POST GRADUATE COLLEGE FOR WOMEN, RAWALPINDI and another--Respondents
W.P. No. 585 of 2005, decided on 13.4.2005.
Educational Institutions--
----Constitution of Pakistan (1973), Art. 199--Calendar of the Board of Intermediate and Secondary Examination, Vol. 2, Chapter 2, R. 3--Petitioner obtaining "F" grade in internal examination--Admission Form of petitioner was not forwarded to Board of Intermediate and Secondary Examination for taking examination of Intermediate--Legality--Admission Form of a student obtaining "F" grade cannot be forwarded to Board for taking examination--Principal, by giving successive chances to petitioner to improve her grade had already shown too much indulgence to petitioner--No student has vested right to have his form forwarded to Board if he fails to secure required grade in internal assessment scheme/send up test--Prospectus framed by College authorities was not in conflict with rules framed by Board of Intermediate and Secondary Education--Prospectus clearly stated, that it is essential for student to pass in all subjects for forwarding his/her form to Board of Intermediate and Secondary Education--Action of respondents being in accordance with relevant rules and regulation, petition against such action has no merit, therefore, dismissed. [P. 176] A
Mr. Shah Khawar, Advocate for Petitioner.
Ch. Saleem-ul-Haq, A.A.G. with Munaza Rehman, Principal and D.E.O. Colleges Rawalpindi.
Date of hearing: 13.4.2005.
Order
The petitioner is a student of F.A. (Part-I) of the Post Graduate College for Women, Satellite Town, Rawalpindi. She failed to obtain 50% marks in the send-up test for taking the Board annual examination. Her form for admission to the Intermediate Examination was not forwarded to the Board of Intermediate and Secondary Education.
Learned Counsel for the petitioner contended that the policy framed by the College is administrative in nature only and against the right of the petitioner to appear in any examination. The petitioner cannot be left at the whims of the Principal of the College. Reliance was placed on Irfan Nadir Vs. The University of Punjab (1996 CLC 550) to contend that a lenient view is to be taken in favour of the student.
Conversely the Principal appeared in person and stated that the petitioner remained unsuccessful in the first two tests. She was given twelve days to improve her grade. She reappeared and again failed. Third time she was given six days for repeating the test and thereafter one month. Lastly she was given three weeks. She submitted that the petitioner was given six opportunities but she has not been able to improve and secure the requisite marks. D.E.O. (Colleges) also appeared and submitted that under Rule 3 of Chapter 2 of the Calendar of the Board of Intermediate and Secondary Education, Volume-2 an admission form of a student obtaining `F' grade cannot be forwarded to the Board for taking examination.
Test Marks Total
Secured Marks
(i) Sessional test October/November 24 100
(ii) December test/Admission test 30 100
(iii) First retest after interval of 15 days 30 100
(iv) Second retest after six days 23 100
(v) Third Retest after one month 28 100
(vi) Last test 26 100
It is thus clear that after December/send up test, the petitioner was given three opportunities to improve her grades. In addition to the above she was given the last opportunity for improvement on 19.3.2005 in which she secured 26 marks. Rule 3, Chapter 2 of the aforementioned Rules reads as under: -
"3. The Head of Institution will maintain proper record of the lectures, practicals, physical exercise, class work, manual work and civil defence training referred to in Rule 2(4)
Record of students performance
(b) (i) The Head of the Institution will also maintain proper record of the marks obtained by students in the periodic tests held during the course of studies. He shall indicate the proper place in the admission forms Letter Grades Assigned to the students, on the basis Of average of aggregate number of marks of the best four out of six tests held during two years. The criteria for determining Letter-Grades shall be as follows:
Internal Assessment and Grading of Students.
Limits of average Marks Grade to be Representing
Marks obtained by assigned
A student
80% and above A-I Extraordinary
70% and above but below 80% A Excellent.
60% and above but below 70% B Very Good
50% and above but below 60% C Good
40% and above but below 50% D Fair
below 40% to 33% E Satisfactory
below 33% F Fail
(ii) The admission form of students obtaining `F' Grade in the Internal Assessment Scheme shall not be forwarded to the Board as they are not eligible to take Examination."
(underlining is mine)
Policy regarding Students obtaining Grade F.
The aforementioned rules shows that the admission form of students obtaining `F' grade in the Internal Assessment Scheme shall not be forwarded to the Board. The Principal has already shown too much indulgence to the petitioner. No student has vested right to have his form forwarded to the Board if he fails to secure the required grade in the internal assessment scheme/send up test. the prospectus framed by the college authorities is not in conflict with the rules framed by the Board of Intermediate and Secondary Education, Rawalpindi. The prospectus clearly state that it is essential for the student to pass in all the subject for forwarding his/her form to the Board. The authority relied upon by the learned counsel is not applicable to the facts of the instant case. In the said case the student had been expelled for cheating in the exam, whereas, in the instant case the Principal has shown enough indulgence to the petitioner.
(A.A.) Petition dismissed
PLJ 2006 Lahore 177
Present: Muhammad Akhtar Shabbir, J.
LIAQAT ALI--Petitioner
versus
PROVINCE OF PUNJAB through D.C.O. GUJRAT and 6 others--Respondents
C.R. No. 1228 of 2005, decided on 8.6.2005.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Concurrent findings of fact--Validity--Such findings could not be disturbed in absence of misreading or non-reading of record. [P. 180] E
Gift--
----Essential ingredients--Held: Muslim could make an oral gift or through an unregistered instrument--Where factum of gift was challenged, then donee must establish its validity by producing cogent and satisfactory evidence regarding declaration by or intention of donor to make gift in favour of donee, acceptance of gift by donee and delivery of physical or constructive possession under gift--Principles stated. [Pp. 178 & 179] A, B & C
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 17(2)(a) & 79--Gift-deed--Proof--Held: Statement of one attesting witness, not corroborated by other attesting witness--No one appeared to verify signature of other deceased marginal witness--Gift-deed was not admissible in evidence. [P. 180] D
PLD 1955 Lah. 191; PLD 1996 Pesh. 86; 1999 YLR 2576; NLR 1999 Civ. 640; 1990 CLC 2027; 1989 SCMR 1491 and 1987 SCMR 1005 ref.
Mian Muhammad Ashraf Tanvir, Advocate for Petitioner.
Date of hearing: 8.6.2005.
Order
Revisional jurisdiction of this Court has been invoked to set-aside the judgment and decree dated 26.7.2004 pronounced by the learned Civil Judge, Gujrat and that of the learned District Judge, Gujrat dated 25.2.2005, who dismissed the appeal of the petitioner maintaining the dismissal of the suit filed by the petitioner.
Facts leading to the instant revision petition, in substance, are that the plaintiff/petitioner filed a suit for declaration with regard to the landed as well as residential property of the deceased Muhammad Hussain, situated in village Tanda Tehsil & District Gujrat. The plaintiff asserted in the plaint that Muhammad Hussain deceased was his real uncle who has no male issue. He had got mortgaged his property but failed to redeem the same due to the paucity of funds. The deceased used to live with him and adopted him as his son. The plaintiff further claimed that he got redeemed the property of the deceased by depositing the loan amount and Muhammad Hussain deceased promised to gift his property in his favour and since then, he being the owner of the property is in possession of the same. The plaintiff prayed that a decree be passed in his favour directing the revenue authorities to enter the mutation of gift in his favour and restraining the defendants/respondents from claiming the property of the deceased as his legal heir. The suit was contested by the defendants/respondents who filed their written statement controverting the assertions of the plaint.
From the factual controversy appearing on the pleadings of the parties, the learned trial Court led to frame the various issues: -
Learned trial Court, after recording and appreciating, the evidence of the parties, pro and contra, dismissed the suit. Feeling aggrieved, the petitioner preferred an appeal which was also dismissed by the learned lower appellate Court vide the impugned judgment and decree dated 25.2.2005.
I have heard the learned counsel for the petitioner and perused the record.
The main controversy that boils down for determination before this Court is whether the deceased Muhammad Hussain has gifted the suit property in favour of the plaintiff through gift-deed dated 15.12.1996? There in no cavil with the fact that a Muslim can make an oral gift or though an un-registered instrument. Be that as it may, a person who is the beneficiary of the gift, the donee has to establish by cogent and sufficient evidence the requirements of a valid gift. The litigant has to prove (a) declaration by the donor (b) acceptance of gift by the donee (c) delivery of possession under the gift.
To establish his assertion, the plaintiff/petitioner has produced a copy of unregistered gift-deed Ex. P-1 attested by two attesting witnesses Abdul Haq and Muhammad Saleem and also produced four persons. The plaintiff/petitioner has appeared as PW-1 as his own witness and has also produced Khadim Hussain PW-2, Muhammad Saleem PW-3 and Mst. Shafqat Bibi as PW-4.
The first ingredient of a valid gift is the declaration/intention of the donor to make the gift in favour of the donee. The plaintiff/petitioner in his examination-in-chief has no where stated that when and where, the donor, deceased Muhammad Hussain has declared his intention to gift away the suit property in his favour. So much so, PW-2, PW-3 and PW-4 are also silent on this factum. PW-4 Shafqat Bibi in her cross-examination has deposed that about 6/7 years back, the deceased had stated that he had gifted out his property. PW-3 Muhammad Saleem who claims to be the attesting witness of Ex. P-1 has also not stated even a single word to the effect that donor has declared his intention in his presence. He only admits the signature on the Ex. P-1. He also admits that he is an illiterate person. It means that he did not know the contents of the Ex. P-1/deed of gift. The first ingredient of a valid gift i.e. declaration has not been proved by the plaintiff/petitioner.
There is a also no evidence on the record to establish that after the declaration by the donor, the plaintiff has accepted the gifted property. 3rd ingredient of a valid gift is delivery of possession under the gift and the petitioner has not produced any evidence that the property was handed over to him by the donor after making his declaration of intention. He deposed that the suit property is in his possession and he installed a Tube Well and constructed a Dera in the land. He stated that the suit property was previously in his possession. It is sufficient to infer that the donor did not deliver the possession of the suit property to him after the gift. PW-2 Khadim Hussain has controverted the statement of PW-1 plaintiff/petitioner stating that the Tube Well has been installed during the life time of the deceased Muhammad Hussain and the trees were also standing in his life time. So much so, the earlier suit with regard to the same land was filed by the petitioner wherein, the petitioner has not taken the plea of gift.
What is really required by Muslim Law is that there should be satisfactory evidence that the donor did in fact part with possession of the subject-matter of his gift either physically or constructively as held in the case of Safi Ullah Vs. Ghulam Jabbar and four others (P.L.D. 1955 Lahore 191). It is also a settled preposition of law with regard to Mohammedan gift that beneficiary of gift must prove validity of gift where factum of gift was challenged. Reference in this context can be placed to the case of Yar Baz Khan Vs. Lal Nawaz (P.L.D. 1996 Peshawar 86). In case of Mst. Fateh vs. Khair Muhammad (1999 Y.L.R 2576), it has also been observed by this Court that deliver of possession is a condition precedent to the validity of the gift.
The statement of the plaintiff that he is in possession under the gift is belied from the statement of PW-2 Khadim Hussain who deposed in his examination-in-chief that the land was under cultivation of Feroz Din father of the plaintiff. It means that after his death, the petitioner continued the possession and cultivation of the land. It is also an admitted position that the disputed land is a joint khata and father of the plaintiff was cultivating the same.
Ex. P-1 the alleged deed of gift has not been proved in accordance with Article 17 read with Article 79 of Qanun-e-Shahadat Order. Only Muhammad Saleem attesting witness has appeared as PW-3 and his statement has not been corroborated by any other attesting witness. The other marginal witness Abdul Haq has died and no one has appeared to verify his signature on the said deed and it is established that this document Ex. P-1 is not admissible in evidence.
Gift will be null and void when circumstances and evidence on record show that no gift ever was made by deceased and every thing was fictitious and concocted. In this context reference can be made to the case of Allah Javai etc. Vs. Mst. Javai etc. (N.L.R. 1999 Civil 640). The plaintiff/petitioner has miserably failed to establish on record the validity of gift in his favour.
The most important aspect of the case is that there is a concurrent findings of fact which would not be disturbed in revision in absence of misreading/non-reading of the record. In this context reliance can be placed to the case of Allah Bakhsh and 3 others Vs. Mst. Bakhat Bhari and another (1990 C.L.C. 2027), Riaz Vs. Muhammad Saleem and 4 others (1989 S.C.M.R. 1491) and Abdul Hameed Vs. Ghulam Muhammad and others (1987 S.C.M.R. 1005). Learned counsel for the petitioner has not been able to point out any illegality, jurisdictional defect, mis-reading and non-reading of evidence in the judgments and decrees passed by the lower Courts.
For the foregoing reasons, this revision petition having no force is dismissed in limine.
(J.R.) Revision dismissed
PLJ 2006 Lahore 180
Present: Jawwad S. Khawaja, J.
IRSHADULLA--Petitioner
versus
MUHAMMAD ARSHAD--Respondent
C.R. No. 1766 of 2001, heard on 8.6.2005.
Power of Attorney--
----Suit for pre-emption filed through attorney--Power of attorney conferred power to file or defend suits in respect of property owned by the plaintiff--It did not relate to any other property including the subject matter of present litigation--Held: Pre-emption suit filed by attorney on behalf of plaintiff was beyond the scope of authority vested in him. [P. 182] A
Punjab Pre-emption Act, 1991--
----S. 14 read with S. 13--Talabs through attorney--Held: An agent/attorney could make the requisite talabs only if plaintiff was unable to do so--Mere fact that he was residing in Saudi Arabia could not prove that he was unable to make talabs--Moreover agent could only make the required talabs if the principal authorized him to do so. [P. 182] B
Punjab Pre-emption Act, 1991--
----S. 14--Contract Act, Ss. 196, 197 & 199--Applicbaility to pre-emption suits--Held: Provisions of Contract Act have no application in the context of provisions of Pre-emption Act, S. 14 thereof, as the Pre-emption Act, being a special law, overrides the Contract Act which is a general law. [P. 182] C
Mr. Manzoor Qadir, Advocate for Petitioner.
Mr. Abdul Majeed Khan, Advocate for Respondents.
Date of hearing: 8.6.2005.
Judgment
The petitioner/plaintiff impugns the concurrent decrees of the learned trial Court dated 11.1.2001 and of the learned appellate Court dated 11.7.2001, whereby a suit for possession through pre-emption filed by the respondent/plaintiff has been decreed.
The questions before me are as to whether the respondent/plaintiff had competently filed the suit and as to whether the requisite talabs had been properly made. These questions arise because the suit was filed by the respondent Muhammad Arshad through his father Fazal Karim, who was purportedly constituted general attorney of the respondent/plaintiff vide power of attorney (Ex. P-3) dated 14.10.1998.
The case of the petitioner/defendant is that the power of attorney (Ex. P-3) did not authorize the attorney Fazal Karim either to file a pre-emption suit or to make any talabs in respect of the respondent's right of pre-emption. I have examined Ex. P-3, which has, in substantial part been reproduced in the appellate judgment. This document has been executed by the respondent/plaintiff in Saudi Arabia. It has been attested by a Consular Officer of the Pakistan Embassy and has also been registered with the concerned Sub Registrar.
In order to determine the powers delegated to the attorney by the respondent/plaintiff, it is necessary to see the language of the document. Firstly, it is relevant to note that the power of attorney has expressly been granted to authorize the attorney to perform acts, deeds and things in respect of the property owned by the respondent/plaintiff situated at a Chah Pippalwala, Pathanwali, tehsil Wazirabad. It is clear to me that the attorney was to have powers during the respondent's absence from Pakistan only in respect of the property owned by the respondent/plaintiff. There is no authority granted to the attorney to file a suit for pre-empting a sale of other property, which by definition is not owned by the respondent/plaintiff. The main thrust of the power of attorney (Ex. P-3) appears to be to enable the attorney to alienate the respondent's property and to manage and supervise the same.
The power of attorney does confer on the attorney a power to file, institute or defend suits. This power, however, is circumscribed by the clear wording that all powers granted to the attorney are in respect of the property owned by the respondent/plaintiff. It cannot be disputed that the subject-matter of the present litigation is property other than the property owned by the respondent/plaintiff. Thus, I am not in any doubt that the pre-emption suit filed by the attorney on behalf of the respondent/plaintiff was beyond the scope of the authority vested in him.
Learned counsel for the respondent supported the impugned decrees and, firstly, drew the attention of the Court to Section 14 of the Punjab Pre-emption Act, 1991 to argue that the attorney of the respondent, being his agent, was entitled to make the requisite talabs under Section 13 of the said Act. In order to appreciate the argument of learned counsel for the respondent, Section 14 is reproduced as under:
"14. Demand by guardian or agent.--Where a person is unable to make demands under Section 13, his guardian or agent may make the required demands on his behalf."
It is evident from Section 14 aforesaid that an agent can make the required talabs but only if the plaintiff is unable to do so. There is nothing on record to show that the respondent was suffering from any disability due to which he was unable to make the requisite talabs. The mere fact that the respondent was residing in Saudi Arabia does not prove that he was unable to make talabs. Secondly, it is obvious to me that even an agent can only make the requisite talabs if he has been authorized to do so. The word agent, used in Section 14 above, presupposes that the agency created by the principal authorizes the agent to make the talabs under Section 13.
Learned counsel for the respondent/plaintiff next adverted to Sections 196, 197 and 199 of the Contract Act to argue that even where an act of an agent is done without the knowledge or authority of the principal, the principal may elect to ratify or to disown such act. The aforesaid provisions of the contract, however, have no application in the context of the provisions of the Pre-emption Act and Section 14 thereof, discussed in the preceding paragraph. Nor can the provisions of a general law such as the Contract Act, override a special law such as the Pre-emption Act.
In addition to the above the general attorney of the respondent/plaintiff, namely, Fazal Karim appeared as PW-3 and deposed that he had made the requisite talb-e-muwathbat on 27.11.1998 when he was informed of the sale by one Tufail. There is nothing on record to show that the respondent/plaintiff himself had made talb-e-muwathibat when he became aware of the impugned sale. In this view of the matter and considering the contents of the power of attorney (Ex. P-3), noted above, I have no doubt that the talabs, purportedly made by Fazal Karim as attorney of the respondent/plaintiff, did not fulfill the requirements of Section 13 of the Punjab Pre-emption Act.
In the foregoing circumstances, I am not in any doubt that pre-emption suit filed by the father of the respondent/plaintiff, purporting to be his general attorney, was beyond the scope of the authority delegated to him. Furthermore, the talabs, which were made by the attorney, were also unauthorized.
In the light of the above discussion, I find that the impugned decrees proceed on an error of law and are, therefore, not legally sustainable. The same are, therefore, set aside. As a result, the suit filed by the respondent/plaintiff is dismissed.
(J.R.) Revision allowed
PLJ 2006 Lahore 183 [Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
Mst. IRFANA FAIZ and another--Petitioners
versus
STATE and 2 others--Respondents
W.P. No. 5988-Q of 2005, decided on 6.10.2005.
Talaq--
----Before expiry of iddat--Validity of talaq--Talaq is not effective and in present case distinguish feature was that petitioner's marriage who stood within prohibited degree before expiry of iddat period--Held: No inclined to legalize that marriage on touchstone of law declared by Supreme Court by ignoring distinguishable feature--Constitutional petition being equitable discretionary relief same could not be extended exercised when grant of such relief is immoral unfair or against dictates of good conscience and fair play--Marriage between parties just three days after alleged divorce with real sister of earlier wife was an unholy which could not be perpetuated by High Court through Constitutional petition. [Pp. 184 & 185] A
Malik Muhammad Jafar Arain, Advocate for Petitioners.
Date of hearing: 6.10.2005.
Order
Through this Constitutional petition, a prayer for quashment of FIR No. 327 dated 24.7.2005 under Section 11 of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) Police Station Jampur District Rajanpur, has been made on the ground that both the petitioners being sui-juris have married with their free will and right of marriage being protected by the Constitution, hence registration of FIR was not warranted by law. In support of this contention, reliance has been placed on the case "Hafiz Abdul Waheed Ropari versus Mrs. ASMA Jehangir and another" (PLD 2004 Supreme Court 219).
I am afraid the aforesaid contention of the petitioner is sustainable in the peculiar facts and circumstances of the case and the case law referred to above is applicable to the present case, being distinguishable. Kaleem Ullah Petitioner No. 2 was admittedly married with Mst. Rukhsana real sister of Petitioner No. 1. However, it is submitted that Kaleem Ullah contracted marriage with Petitioner No. 1 on 26.7.2005 after divorce given to Mst. Rukhsana on 23.7.2005. When questioned, whether any notice in terms of Section 7 of the Muslim Family Laws Ordinance, 1961 was given, learned counsel frankly conceded that no such notice was issued. He however, argued that it is now a declared law that any Tallaq given under Muslim Law shall not be rendered ineffective for want of notice and further that at the most a marriage between the parties before effectiveness of said Tallaq could be considered as irregular but not void.
I have considered arguments but am not persuaded to agree with the same. The fact that Petitioner No. 2 allegedly divorced his wife Mst. Rukhsana real sister of Petitioner No. 1 on 23.7.2005 and married Petitioner No. 2 just after three days i.e. on 23.7.2005, cannot be approved on any legal or moral consideration. I am of considered opinion that before the expiry of Iddat, Tallaq is not effective and since in the present case distinguishing feature is that Petitioner No. 2 married Mst. Irfana Petitioner No. 1 who stood within the prohibited degree, before the expiry of Iddat period, hence, I am not inclined to legalize such marriage on the touchstone of law declared by Hon'ble Supreme Court in the cited judgment by ignoring the distinguishable feature of present case. Even otherwise, Constitutional petition being equitable/discretionary relief, same cannot be extended/ exercised when grant of such relief is immoral, unfair or against the dictates of good conscience and fair play, as held in the case "Secretary to the Government of the Punjab versus Ghulam Nabi" (P.L.D. 2001 Supreme Court 415). To me, the marriage between the parties just three days after the alleged divorce with the real sister of earlier wife is an unholy alliance which cannot be perpetuated by this Court through the relief sought in this Constitutional petition. Even otherwise, since the petitioners have not approached this Court with clean hands, no such relief can be granted to such persons. I am fortified in my view by the judgment of Hon'ble Supreme Court of Pakistan in Raunaq Ali's case (P.L.D. 1973 S.C. 236) and by this Court in "Nisar ul Haq versus Tehsil Municipal Administrator City" (P.L.D. 2002 Lahore 359). Lastly, it would not be out of place to observe that as held by the Hon'ble Supreme Court in "Shaukat Ali versus Altaf Hussain Qureshi and another" (1972 S.C.M.R. 398) the Courts do not function in vacuum and must take due notice of social and moral environments prevailing in community, such as, tendency on part of some youngmen to abuse provisions of law in furtherance of their illicit love affairs. Although, the said observation of the Hon'ble Supreme Court was passed while deciding a habeas corpus petition under Section 491 Cr.P.C. yet the pronouncement of the Apex Court can be equally made applicable while exercising Constitutional jurisdiction, especially in the matter like the one in hand seeking enforcement of an unholy relationship between the petitioners.
The result of above discussion is that I find no substance in this petition which is accordingly dismissed in limine.
(R.A.) Petition dismissed
PLJ 2006 Lahore 185
Present: Muhammad Muzammal Khan, J.
GHULAM ABBAS--Petitioner
versus
PROVINCE OF PUNJAB through DISTRICT COLLECTOR JHANG and 9 others--Respondents
W.P. No. 5373 of 2005, decided on 10.6.2005.
Administration of Justice--
----Anyone dispensing judicial or quasi-judicial functions, if was not conferred any jurisdiction over some matter, the same could not be injected by consent/concurrence of parties to lis. [P. 189] C
Conciliation Courts Ordinance, 1961--
----S. 7(2) read with Sch., Part I(b)--Jurisdiction of Conciliation Courts--Held: Conciliation Courts were given jurisdiction in civil matters having value upto Rs. 1,00,000/- and it was no where provided that they were conferred with jurisdiction to impose a penalty of Rs. 1,00,000. [P. 188] A
Conciliation Courts Ordinance, 1961--
----S. 5 read with S. 7 & Schedule--Constitution of reconciliation committee--Legal status--Chairman constituted reconciliation committee on application of petitioner (husband) for seeking direction to Respondent No. 10 (wife) to perform her marital obligations--Held: Such a Committee did not figure any where in the Ordinance--By no standard such committee could act as reconciliation Court under S. 5(1) for assuming jurisdiction under S. 7(2) of the said ordinance--Held further: Chairman or reconciliation committee could not even entertain any dispute regarding resolution of conjugal rights as same was not included in schedule to the Ordinance High Court declared order of committee imposing penalty of Rs. 1,00,000/- to petitioner, as without jurisdiction. [Pp. 188 & 189] B & D
Constitution of Pakistan, 1973--
----Art. 199--Writ jurisdiction--Laches--Condonation of delay--Held: Petitioner had already filed application for condonation of delay and had fully explained such delay in detail--According to which he did not sleep over his rights and did not accept impugned orders at any stage which were ultimately challenged by present writ petition--As impugned orders were patently void and so an illegality could not be allowed to be perpetuated, High Court condoned delay in such circumstances. [Pp. 189 & 190] E
PLD 1964 SC 97; PLD 1958 SC 104 and PLD 2003 SC 132 ref.
Mr. Khalid Ikram Khatana, Advocate for Petitioner.
Mr. Muhammad Yasin Badar, Advocate for Respondents.
Date of hearing: 10.6.2005.
Order
Instant Constitutional petition prayed order dated 11.6.2003 passed by reconciliation committee (Respondents Nos. 6 to 8) to be declared illegal, void and of no legal consequence whereby the petitioner was burdened with a penalty of Rs. 1,00,000/- for not abiding with his commitment and the decision of the reconciliation committee dated 25.6.2003.
Precisely relevant facts are that Respondent No. 10 was married with the petitioner on 22.12.1998 through a registered Nikah Nama according to Muslim Rites, in exchange of marriage of her brother with sister of the petitioner. Rukhsati of Respondent No. 10 did not take place at the time of Nikah.
The petitioner filed an application before Respondent No. 4 for grant of permission of second marriage which was withdrawn and another application was filed by him, for a direction that Respondent No. 10 may be ordered to join him as his wife, in form of restitution of conjugal rights. Reconciliation committee was constituted by Respondent No. 4 consisting of Respondents Nos. 6 to 8 who with the concurrence of the parties resolved the matter on 11.6.2003 requiring the petitioner to give further assurance through some writing that he will provide to his wife a healthy atmosphere. Petitioner did not abide with the decision dated 11.6.2003 of the reconciliation committee whereupon he was burdened with an amount of Rs. 1,00,000/-, payable to Respondent No. 10 and accordingly a decree was passed on 25.6.2003.
Petitioner being aggrieved of decision of reconciliation committee dated 25.6.2003 filed a suit for declaration with permanent injunction before the learned Civil Judge, Shorkot, District Jhang but withdrew the same, without adjudication on 20.10.2004. He thereafter filed an appeal before the learned District Judge, Jhang against the order of reconciliation committee dated 25.6.2003 and withdrew this appeal, as well, on 14.4.2005. He then moved an application before the District Officer (Revenue) for stay of recovery of Rs. 1,00,000/- from him. This petition was also withdrawn by him on 4.5.2004 and on the same day, he filed instant Constitutional petition before this Court with the relief noted above. In response to notice by this Court, the respondents have appeared and are represented through their counsel.
Learned counsel for the petitioner submitted that reconciliation committee constituted by Respondent No. 4 had no jurisdiction to impose penalty of Rs. 1,00,000/- as under Section 7 of the Conciliation Courts Ordinance, 1961, maximum penalty of Rs. 500/- could have been awarded. It was further argued that the impugned order is without jurisdiction, as Respondents Nos. 6 to 8 had no lawful jurisdiction to pass the same and could at the most refer the matter with their recommendations to Respondent No. 4. It was further submitted that petitioner had been following the matter vigorously before different forums thus, delay, if any, in approaching this Court, deserved to be condoned under Section 14 of the Limitation Act, 1908 and for this purpose a separate application, explaining reasons for the delay in approach to this Court has been filed.
Learned counsel for the respondents opposed the arguments of the petitioner, supported the impugned order and urged that Constitutional petition before this Court suffered from laches which inspite of void order cannot be condoned in view of law laid down by the Hon'ble Supreme Court in the cases of Khiali Khan versus Haji Nazir and 4 others (PLD 1997 SC 304) and Members (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another versus Syed Ashfaque Ali and others (PLD 2003 S.C. 132). It was further submitted on behalf of the respondents that under Section 7(2) read with Section (B) of Part-I of the Schedule to the Conciliation Courts Ordinance, 1961, the reconciliation committee had jurisdiction to award penalty of Rs. 1,00,000/- thus the impugned order is not void. It was argued with emphasis that in all civil cases in which value of the claim does not exceed to Rs. 1,00,000/- the Conciliation Courts was competent to pass any order, including the orders like the one impugned. It was further contended that the impugned order was passed in presence of the petitioner, as is evident from the fact that he filed a suit on 1.9.2003 before the Civil Court and had been maintaining certain incompetent proceedings there against thus, approach to this Court after lapse of two years is not condonable.
I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Before taking up the case on merits, I would like to examine legality or otherwise of the impugned order through which application of the petitioner seeking restitution of conjugal rights was not decided and he was burdened with a penalty of Rs. 1,00,000/- on account of not furnishing written undertaking of keeping his wife with harmony in compliance to order of the reconciliation committee dated 11.6.2003. The reconciliation Courts constituted under the Conciliation Courts Ordinance, 1961 were given jurisdiction with regard to matters detailed in the schedule appended therewith, which included criminal, as well as, civil cases. In later mentioned cases, jurisdiction of the reconciliation Courts extended to the matters value of the claim in which did not exceed Rs. 1,00,000/-. Relevant Part-II of the schedule reads as under":
"All civil cases (excepting those mentioned in Section B of Part-I of this Schedule), in which the value of the claim does not exceed Rs. 1,00,000/-."
The above reproduced Part-II of the Schedule clearly depicts that pecuniary jurisdiction of the arbitration Courts was fixed at Rs. 1,00,000/- and it does not convey that the Courts were conferred with jurisdiction to impose a penalty of Rs. 1,00,000/-. There is no provision in he Conciliation Courts Ordinance, 1961 equipping Respondents Nos. 6 to 8 to act as a conciliation committee and to discharge functions fo conciliation Court or to penalize any of the parties before them, with any kind of penalty thus, the impugned order was passed without any backing of law and is patently corum-non-judice. Record revealed that Respondent No. 10 had subsequently filed a suit for dissolution of her marriage and the petitioner instituted suit for restitution of conjugal rights and the learned Judge Family Court concerned dissolved the marriage out of consolidated judgment dated 28.1.2004 refusing restitution of conjugal rights. The petitioner had been running to pillar to post for bringing Respondent No. 10 to his house for performing marital obligations and in this effort, he moved an application before Respondent No. 4 who constituted the reconciliation committee. Examination of provisions of law applicable, revealed that such a committee does not figure any where and the one which could be constituted was conciliation Court, in terms of Section 5 of the Ordinance, 1961 which had to be a body consisting of a Chairman and tow representatives to be nominated in the prescribed manner, one by each of the parties to the dispute. By no standard, the committee of Respondents Nos. 6 to 8 could act as reconciliation Court under Section 5(1) of Ordinance (ibid) and to assume jurisdiction in terms of Section 7(2) of the Ordinance. For elucidation, we can refer the judgment in the case of Arbab Hafizullah Khan versus Mir Badshah and another (PLD 1968 Peshawar 190). Under law, any one dispensing judicial or quasi judicial functions, if was not conferred any jurisdiction over some matter, the same cannot be injected by consent/concurrence of the parties to the lis. Reference in this behalf can be made to judgments in the cases of Muhammad Swaleh and another versus Messrs United Grain & Fodder Agencies (PLD 1964 SC 97) and Yousaf Ali versus Muhammad Aslam Zia and 2 others (PLD 1958 SC 104). As a matter of fac, Respondent No. 4 or Respondents Nos. 6 to 8 could not even entertain any dispute regarding restitution of conjugal rights as the same was not included in the Schedule to Ordinance (ibid) wherein, civil cases triable by conciliation Courts only included suits for recovery of money on contracts, for recovery of movable property, for compensation on wrongful taking or damage to movable property and for damages by cattle trespass. In this manner, as well, order of Respondents Nos. 6 to 8 (reconciliation committee) is without jurisdiction.
Coming to merits of the case, application of the petitioner before Respondent No. 4 had prayed that his wife, Respondent No. 10 may be made to live with him for performing martial obligations. Such an application to establish conjugal rights, as observed above, could not have been entertained, adjudicated or decided by Respondents Nos. 4 to 8 and if they could not decide it, how they could pass any order, like the one impugned before this Court but they being oblivious of their short comings of jurisdiction, without lawful powers burdened the petitioner with an excessive/exorbitant penalty. Petitioner was not granted his prayer and instead was wrongly made liable to pay Rs. 1,00,000/- which was disproportionate to the default committed by him.
Efforts of the petitioner have already been detailed in factual part of this judgment which show that he did not sleep over his rights and did not accept the orders impugned at any stage which were ultimately challenged by him through instant Constitutional petition. The petitioner has already moved an application for condonation of laches suffered in approaching this Court and according to the principles laid down by the Hon'ble Supreme Court in the case of Member (S&R)/Chief Settlement Commissioner), Board of Revenue, Punjab, Lahore and another versus Syed Ashfaq ALi and others (LD 2003 SC 132) petitioner has explained delay in his approach to this Court through petition in hand. Besides all this, orders impugned being patently void cannot remain in field and an illegality cannot be allowed to be perpetuated solely for the reason that the petitioner being illiterate kept on roaming before different Courts/authorities who could not adjudge/rescind the orders passed by an incompetent forum i.e. conciliation committee consisting of Respondents Nos. 6 and 8. Besides these reasons, grounds urged in C.M. No. 1/2005 filed by the petitioner under Sections 5 and 14 of the Limitation Act, 1908 are enough to condone the laches.
For the reasons noted above, impugned order by Respondents Nos. 6 to 8 (conciliation committee) being illegal, void and without jurisdiction are declared to be so and instant petition is allowed, in consequence of which, writ as prayed is issued with no order as to costs.
(J.R.) Petition allowed.
PLJ 2006 Lahore 190
Present: Muhammad Muzammal Khan, J.
LAKHI--Petitioner
versus
MEMBER (COLONIES) BOARD OF REVENUE PUNJAB and 5 others--Respondents
W.P. No. 3020 of 2005, decided on 11.7.2005.
Natural Justice--
----Provision of notice to affected party and principles of natural justice have to be read in each statute even if they have not been specifically provided therein--Further held: MBR would have decided the entire his pending before him and if he would find petitioner with no right to land allotted to respondents his application should also have been dismissed--Impugned orders were set aside and case remanded to the BOR for decision afresh. [P. 192] A & B
PLD 2002 SC 408; 1991 MLD 267; 1991 CLC 229; 1971 SCMR 681 and 1981 SCMR 1061 ref.
Mr. Aamir Majeed Rana, Advocate for Petitioner.
Ch. Muhammad Sadiq, A.A.G. for Respondent No. 1.
Mr. Naveed Shaharyar, Advocate for Respondent No. 6.
Date of hearing: 11.7.2005.
Order
Instant Constitutional petition prayed orders dated 12.5.2004 and 16.2.2005 passed by Member (Colonies), Board of Revenue, Punjab, Lahore (Respondent No. 1) to be declared illegal, void and of no legal consequence whereby first review petition against judgment dated 9.10.2003 in ROR No. 239/2004 was accepted and second review by the petitioner was dismissed, respectively.
Succinctly, relevant facts are that predecessor of Respondents Nos. 2 and 3 namely Ghulam Muhammad deceased, got allotment of land measuring 42 Kanals and 10 Marlas alongwith Khurshid Bibi and Bano being heirs of Nathu deceased under the Ejected Tenants Scheme vide Letter No. 650. The land so allotted was sold by the allottees to Shafqat Hussain and Tassaduq Hussain Respondents Nos. 4 and 5. Respondents Nos. 2 and 3, according to the petitioner, got another allotment of 100 Kanals 15 Marlas being heirs of Nathu deceased by concealing their previous allotment out of fraud/misrepresentation under same scheme for "Ejected Tenants" which was consequently challenged by him by way of an appeal, claiming that the land so allotted was in his cultivating possession for the last 20 years. The petitioner after withdrawing his appeal from Executive District Officer (Revenue), Sargodha filed an application under Section 30(2) of the Colonization of Government Lands (Punjab), Act 1912 before the Member, Board of Revenue (Respondent No. 1) for cancellation of conveyance deeds dated 12.12.1975 and 14.4.2003 in favour of Respondents Nos. 2 and 3. Petitioner's application was entertained by Respondent No. 1 and respondents were restrained from transferring the land in question, besides which, a report was requisitioned from District Collector in order to satisfy as to whether the State land was correctly transferred. This was done by Respondent No. 1 vide order dated 9.10.2003.
Respondents Nos. 4 and 5, in the meanwhile, had filed a review petition against order dated 9.10.2003 (Review No. 239/2004) which was accepted with the findings that land was lawfully allotted to Respondents Nos. 2 and 3 who correctly transferred to Respondents Nos. 4 and 5 and they are bona fide purchasers. This review was allowed on 12.5.2004.
Petitioner was not arrayed as a party to Review Petition No. 239/2004 thus he being aggrieved of order dated 12.5.2004 filed another review that the order dated 9.10.2003 by Respondent No. 1 had been passed on their application and the subsequent order of review being against their interest, the same could not have been reviewed without notice to them. Respondent No. 1 refused to interfere vide order dated 16.2.2005. The petitioner thereafter filed instant Constitutional petition for the relief noted above. The respondents in response to notice by this Court have appeared and are represented through their counsel.
I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, the petitioner was not made party by Respondents Nos. 4 and 5 while filing review against order dated 9.10.2003 which had been passed on his application. Similarly, no notice was issued to the petitioner by Respondent No. 1 earlier to passing of impugned order dated 12.5.2004, contrary to the provisions of law and principles of natural justice. The petitioner may had no right, title or interest in the property in question but since the order dated 9.10.2003 was passed on his application in ROR No. 1439/2003 he had a right of hearing earlier to review of order on his petition which was being recalled against his interest. Learned counsel for the respondents could not refute the fact that neither any notice was issued to the petitioner nor any opportunity of hearing was granted to him by Respondent No. 1 earlier to order dated 12.5.2004 thus the same was not sustainable because provision of notice to the affected party and principles of Natural Justice have to be read in each Statute, even if those have not been specifically provided, therein. Reference in this behalf can be made to the judgments in the cases of Mst. Zahida Sattar and others versus Federation of Pakistan and others (PLD 2002 S.C. 408), Messrs Murree Brewery Company Limited versus Director General, Excise and Taxation and 3 others (1991 MLD 267) and Gul Muhammad versus Buxal and 2 others (1991 CLC 229). Contention of the learned counsel for the respondents that the petitioner was heard at the time of decision of his Review Petition No. 560/2004 has not impressed me as this hearing would not cure the inherit defect in order dated 12.5.2004, as per judgments of the honourable Supreme Court in the cases of Collector, Sahiwal and 2 others versus Muhammad Akhtar (1971 SCMR 681) and Fateh Muhammad versus Mushtaq Ahmad and 9 others (1981 SCMR 1061). As a matter of fact, Respondent No. 1 should have decided the entire lis pending before him including ROR No. 1439/2003 and if according to his estimation, the petitioner had no right to the land allotted to Respondents Nos. 2 and 3, his application in this behalf (ROR No. 1439/2003) should have also been dismissed.
For the reasons noted above, both the impugned orders dated 12.5.2004 and 16.2.2005 are not sustainable thus by accepting instant Constitutional petition, those are declared to be illegal and non-existent, with the result that the respondents Review Petition No. 239/2004 shall be deemed to be pending before Respondent No. 1 which shall be decided afresh after hearing the parties, including the petitioner, alongwith ROR No. 1439/2003. Parties are directed to appear before Respondent No. 1 on 26.7.2005. There will be no order as to costs.
(J.R.) Case remanded
PLJ 2006 Lahore 193
Present: Ali Nawaz Chowhan, J.
M/s. ADIL TEXTILE MILLS etc.--Petitioners
versus
GOVERNMENT OF PUNJAB--Respondent
W.P. No. 1914 of 2004, decided on 28.7.2005.
Punjab Local Government Ordinance, 2001 (XIII of 2001)--
----Sched. VI, Paras, 89 and 90--Constitution of Pakistan (1973), Art. 199--Demand of licence fee by local councils assailed--Jurisdiction to demand licence fee for specific trade on calling--New Ordinance of 2001, has changed entire spectrum of local bodies while re-distributing areas and re-assigning duties and powers therefore, body so created i.e. council, have now to meet requirements reflected in Paras 89 and 90 of 6th Schedule to Ordinance of 2001--Fee to be charged is against premises and some standard or yard-stick has to be set for charging fee on basis of size and area of premises, therefore, de-novo exercise is required and has to be done even with respect to old payees--Old payees of fee who are some of petitioners have thus, a right to demand on basis of size and area of premises, without being barred by Section 185 of Punjab Local Government Ordinance, 2001 and they have to be treated equally with new licensee, who have to be enrolled under new dispensation--Local bodies have to formulate policy through by laws--Local bodies have to come out with proper regulatory system and having done so, they would have locus standi to ask for fee from beneficiaries. [Pp. 201 & 202] A
(ii) Punjab Local Government Ordinance, 2001 (XIII of 2001)--
----Sched. VI, Paras 89 & 90--Constitution of Pakistan (1973), Art. 199--Demand notices by local councils, demanding licence fee for specific trade or calling, assailed--Demand notices are gust bald notices which have been issued on basis of resolution without keeping in view requirements and policy of law under new dispensation--Local bodies, however, have to make their own by laws specific to licence fee in question--Therefore, in areas where fee in question, is chargeable, same can only be charged after framing by laws relating to specific trade or calling so as to regulate and stream line entire system envisaged under the new Ordinance of 2001. [P. 202] B
2003 SCMR 162; PLD 1958 SC 41; PLD 1993 Lah. 194; 2003 SCMR 162; PLD 1998 SC 449; 1999 SCMR 1402; PLD 1965 Dacca 156 and PLD 1958 SC (Pak.) 41.
Dr. Mohy-ud-Din, M. Tariq Hussain Malik, Ijaz Ahmad Awan and Mr. Faisal Zaman Kh. Advocates for Petitioners.
Mr. Fauzi Zafar, Mirza Aziz-ur-Rehman, Abdul Wadood, Advocates for Respondents.
Mr. Aftab Iqbal Ch. A.G. assisted by Mr. Khurshid Anwar Addl. A.G. for the State.
Dates of hearing 6.7.2005, 7.7.2005, 8.7.2005, 11.7.2005, 12.7.2005 & 13.7.2005.
Judgment
This judgment will dispose of the writ petitions, the details of which have been provided in Schedule-A, attached to this judgment.
In all these Writ Petitions the demand for payment of licence fee has been assailed. There are three types of Demand Notices in this connection., One type of notices emanates from Zila Councils, the second emanates from Town Councils and the third type of notices have come from the Union Councils.
The main arguments against demand of licence fee by the Zila Council, Town Council and the Union Council relate to the question of their jurisdiction and in this connection reference is made to Item No. 1, Part V of the Second Schedule to the Punjab Local Government Ordinance, 2001.
It is said that with respect to the powers and jurisdiction of Zila Councils, the areas where it may interfere are given in Part II of the said Schedule and as far as the Town Council is concerned, it is given in another separate part of the schedule, all of these areas are distinct and different.
Besides, the Demand Notices coming from the Zila Council, we have in a number of cases notices issued by the Union Council itself. A challenge has also been thrown to the notices of the Union Council with respect to the demand of the licence fee on the ground that the Union Council can only have a locus standi to demand such a fee while rendering a service to the person from whom the fee is being demanded, in view of the principle of quid pro quo. While dilating on this aspect, it was said that the service in this respect will be a special service and not a general service which the Union Council is required to perform for all and sundry against public taxes because demand of a fee would relate to the special services and its costs. In this connection, reference has been made to the case of: Pakistan Flour Mills Association and another vs. Government of Sindh and others (2003 SCMR 162). That another requirement on the part of the Union Council will be to establish a regulatory system for ensuring that the fee so charged is sued for the said special services so offered and the licence is issued in this connection for regulating obligations and duties under the licence.
Reference in this connection is made to Para 90 of the Schedule VI to the Punjab Local Government Ordinance, 2001 which is re-produced below:--
"Conditions which may be attached to licences:--A licence granted to any person under paragraph 89 shall specify the part of the local area in which the licence may carry on his trade, calling or occupation, and may regulate the hours and manner of transport within the local area of any specified articles intended for human consumption and may contain any other conditions which the concerned Local Government thinks fit to impose in accordance with the bye-laws made under this Ordinance."
Reference was made to case of M/s. East & West Steamship Co. Vs. Pakistan and two others (PLD 1958 SC 41). While further dilating on the subject, it is said that the fee has also to correspond with the expenditure involved for purposes of maintaining the said regulation and in this connection the case of Ayaz Textile Mills Ltd. v. Federation of Pakistan and another (PLD 1993 Lah. 194) was also referred to.
It is said that the present demand made by the Union Council is just a bald demand without informing the petitioners as to who were the recipients of the special services about the performance of special service being provided justifying expenditure to be derived from the demanded fee. That a person to whom a Demand Notice is addressed, has a right of knowing this fact and all the incentives offered in terms of services. That once he is aware of the service, he will rather feel comfortable in paying the fee in terms of the services. Reference was made to the following case law:- (1) Pakistan Flour Mills Association and another vs. Government of Sindh and others (2003 SCMR 162); (2) Noon Sugar Mills Ltd. vs. Market Committee and others (PLD 1989 SC 449); (3) Collector of Customs and others vs. Sheikh Spinning Mills (1999 SCMR 1402); (4) Haji Ghulam Zamin and another vs. A.B. Khondkar and others (PLD 1965 Dacca 156) and (5) M/s. East and West Steamship Co. vs. Pakistan and others (PLD 1958 SC Pak. 41).
It was said that the demand which is so made is being made as if it were a tax and not a fee and that the Union Council is assuming such a position without realizing its own obligations under the law.
In this connection and on the distinction between tax and fee, reference has been placed on the case of: Collector of Customs and others vs. Sheikh Spinning Mills (1999 SCMR 1402).
Historically speaking, the Local Government was authorized to levy taxes since 1911 when for the first time the professional and vocational tax was imposed by virtue of Section 61 of the said law. Section 121 of the same law also authorized the Municipal Bodies to levy taxes on dangerous trades and professions. This necessitated regulation which also included the issuance of licence. A reference in this connection may be made to the case of: M/s. East and West Steamship Co. vs. Pakistan and others (PLD 1958 SC 41).
Whereas, 1911 Law through its Section 123 also authorized the Municipal Bodies to prohibit a dangerous trade or vocation, where it found that prohibition order was more suitable.
Subsequently, the 1911 Law was replaced by the basis Democracy Order 1959. In this law, the local bodies were divided in four categories in the rural areas. These were Union Committee, Tehsil Council District Council and Town Committee. Whereas, the Municipal Administration Ordinance 1960 brought within its ambit the Municipal Administration of the urban area while categorizing these as Municipal Corporations for bigger towns and Municipal Committees for smaller towns.
Section 92 of the Municipal Administration Ordinance 1960 catered for dangerous profession and vocation. This Act by virtue of Section 121 also authorized the Municipal Bodies to regulate through prohibition such trade and vocation which was dangerous. The Dangerous and Offensive Articles and Trades Rules 1960 were promulgated which bestowed powers of issuing licences to the Municipal Bodies to regulate the trade under the caption "Dangerous Trade and Vocation". In this connection, more details were provided under the 4th Schedule pertaining to Section 121 of this old law.
Whereas, Section 33 of the Urban Municipal Administration Ordinance 1960 related to the powers to levy taxes, fees etc. for the 3rd Schedule and for the first time, tax on trade, on taxation, on profession and calling was introduced, whereas, Section 122 pertaining to the licence fee. The modalities of charging fee was left for the Municipal Bodies to be regulated through their by-laws as per matters pertaining to their jurisdictions given in the 5th Schedule of the Ordinance, 1960.
The next law on the subject referred to was the Punjab Local Government Ordinance 1979. This Ordinance in the matter of categorization of the local bodies for urban areas extended the number of such bodies to four and these were Town Committee, Municipal Committee and Municipal Corporation and their Metropolitan Corporation.
In the said Ordinance of 1979, Section 73 pertained to the Dangerous and Offensive Articles and Trades read with its 1st Schedule. Whereas, Section 137 of the 1979 Law pertained to the powers of taxation given to these bodies and 2nd Schedule mentioned the areas where this taxation was possible.
In Section 137 of the Ordinance 1979, the word "tax" was only mentioned whereas, its definition was given in Section 3(45) of the Ordinance and this included tax and fee.
Part 2 of the 2nd Schedule to the Ordinance 1979 authorized the Zila Council to issue licence/permits and charge fee, the tax on professional trade and calling was given in Items 12 of this Schedule.
Reference is made to Section 137 of the Ordinance of 1979 and the two Notifications which were issued under the same Ordinance, one of which was Notification No. 9055 of 15th October, 1992 which was subsequently amended through Notification No. 592 dated 26th January 1995 to be published in the Gazette on 21st June 1995 taxing or bringing under the licensing power of the Government trades and callings and factories.
After 1979 Law ceased, we have the Presidential Ordinance under the Punjab Local Government Ordinance 2001 which was enforced on 14th August 2001, which recomposed the Local Government at various tiers. It is for the first time that the Nazim and his administration have been distinguished from the legislative council and both have been ascribed different functions. The administration has been made as the body corporate which can be sued in its name.
In its 2nd Schedule, Part I, the powers with respect to levy of fee for licences and for specific services rendered by a District Government are reflected in its Paragraph Nos. 6 & 7. Whereas the powers of Zila Council in City/District which is the council itself, are reflected in Part II.
Section 116 of the present Ordinance provides the methodology for fixing of fee and taxes. This also grants powers to the Zila Council to make changes in the taxation and fee already levied and also to withdraw the same. One novel part of the scheme based on the rules of natural justice is that even the proposals for new taxation or changes in the taxation and fee are to be given publicity through gazette Notification and objections invited as per the amended Section 116(2).
Section 180 of the Punjab Local Government Ordinance 2001 has also brought about a substantial change in the previously existing situations. For instance, in the case of previous law i.e. 1979 Law only the Urban Bodies of the Local Government were allowed taxation in respect of the dangerous trades but this now has been spread over different bodies including Zila Council.
Section 185 of the Ordinance also allows different Local Governments to be successors of the Urban Administration for purposes of tax fee, rates etc. as long as they were valid and not withdrawn through any Ordinance. Whereas, Section 195 allows the various councils to function and to make their by-laws and rules. The transitory period is covered by Section 195. According to which, only those by-laws which were made the by-laws as given in the 6th Schedule, will be followed by them.
We may again advert to Section 180 of the Punjab Local Government Ordinance, 2001 which speaks of the successors to the previous system and we find that Metropolitan Corporations or Municipal Corporations are to be succeeded by the City District Government. The District Government is to succeed the District Council, Tehsil Municipal Administration in the case of Municipal Corporations, Municipal Committees and Town Committees in Tehsil. The Union Administration is to succeed Union Councils. Therefore, when read with Section 185 of the Ordinance, we have the succeeding units to the previous units of the Local Government.
A perusal of Section 196 further suggests that the dangerous trades and occupations which were left under the previous law, have been saved. Section 192 of the new law authorizes various tiers of the Local Government to make their bye-laws and until they make their bye-laws, they have to be guided by the paradigm, which is given in Schedule fifth.
A perusal of 5th Schedule reflects that dangerous and offensive trades and articles are shown in Item No. 17 and No. 21 speak of licensing, whereas, Item No. 43 empowers Zila Council to levy licence in new areas which in its opinion ought to be burdened with a license fee.
Incidentally, we find that the dangerous and Offensive Articles and Trades are also embodies in the 6th Schedule of the new Ordinance and in its paragraph 44 licensing fee is to be paid by the premises which such a trade is to be carried on irrespective of its corporate status.
In these cases, there are six categories of the petitioners who are assailing the licence fee and their categories are as follows: (1) Spinning Mills, (2) Electric Manufacturing Units, (3) Paper and Tissue Papers Units, (4) Shows Manufacturing (5) Banks, and (6) Petroleum and Petroleum Products.
Whereas, in the writ petitions, the writ petitioners also referred to other subjects but at the time of the arguments confined themselves only to the question of levy of licence fee because some of the subjects indicated were already subjudice before the Supreme Court or related to other writ petitions which have been separated from these.
Taking the matter category-wise, the learned counsel for the Zila Council, Sheikhupura, referred to the Second Schedule to Punjab Local Government Ordinance 2001 and Item No. 6 which reads: "fees for licenses or permits and penalties fines for violations" and states that the Zila Council can ask for fee for licences which are covered by the Dangerous and Offensive Articles and Trades as reflected in Paragraph 44 of the 6th Schedule.
A perusal of which shows that in its para 8, manufacturing by any process whatever for cloth or yarn is included, thus empowering the Zila Council in this respect.
It is said that paper manufacturing is also covered by Dangerous and Offensive Articles and Trades. But a perusal of the Schedule reflects that only the business of storing or selling papers is reflected there and not the manufacturing part, which, therefore, will exclude the area where manufacturing of papers is involved.
The next question is whether production of electricity is also covered within the ambit of powers bestowed on the Zila Council. That a perusal of the Dangerous and Offensive Articles and Trades reflects that manufacturing of electricity is not covered under the Schedule. However, it was learnt that this matter is already subjudice before the Hon'ble the Supreme Court of Pakistan and, therefore, this Court is not inclined to discuss it here but shall rather await the judgment of the Hon'ble Supreme Court on the subject.
The next category is manufacturing of jute. The reading of relevant portion of the Schedule in the presence of the parties reveals that the manufacturing of jute is also not covered under the Schedule empowering the Zila Council to ask for a licence fee. So this is excluded.
The next category is the petrol and petroleum products. A perusal of the relevant Schedule reflects that this is covered under the Schedule as a dangerous and offensive trade and exempted as per paras 89 and 90 of the 6th Schedule.
Regarding shoe and shoe trade, the matter may not be gone into after the learned counsel for the respondent's side stated that they were not subjecting this industry presently to any fee.
So, the overall discussion reveals that the areas allegedly covered for purposes of fee at the local council level are now short-listed after what has been stated above and regarding the matters reflected in Paragraph 17 we have to await the decision of the apex Court.
Para 44(2) of the 6th Schedule of Local Government Ordinance 2001 reads as follows:--
"Except under and in conformity with the conditions of a licence granted by the concerned Local Government:--
(a) no person shall carry on any dangerous or offensive trade;
(b) no premises shall be used or offered to be used to any dangerous or offensive trade; and
(c) no person shall store or keep in any premises:--
(i) any dangerous or offensive articles for domestic use; or
(ii) any dangerous or offensive articles in excess of such limits and quantity as may be fixed by by-laws."
Which requires the grant of license and the conditions required to be observed under the licence and the services required for purposes of enforcing the licence, entailing a cost and providing the justification for recovering the cost through the licence fee.
"89(1)(a) to 89(1)(m)
"89(1)(n) any other trades and occupations specified in the bye-laws, or through public notice by local council from time to time;
shall carry on his trade, calling or occupation in such part of a local area as may be designated by the local council unless he has applied for and obtained a licence in this behalf from the concerned Local Government.
(2)
(3) Notwithstanding anything contained in sub-paragraph (1)--
(a) no person who was, at the commencement of this Ordinance carrying on this trade, calling or occupation in any part of a local area shall be bound to apply for a licence for carrying on such trade or occupation in that part until he has received from the concerned Local Government not less than three months' notice in writing of his obligation to do so, and if the concerned Local Government refuses to grant him a licence, it shall pay compensation for any loss incurred by reason of such refusal;
(b) no person shall be required to take a licence for the sale or storage of petroleum or for the sale or possession of poisons or white arsenic in any case in which he is required to take a licence or such sale, storage or possession under any Federal or Provincial statute.
(4) A local council may charge fees for the grant of licences under this paragraph."
"90. Conditions which may be attached to Licences.--A licence granted to any person under Paragraph 89 shall specify the part of the Local Area in which the licensee may carry on his trade, calling or occupation, and may regulate the hours and manner of transport within the Local Area of any specified articles intended for human consumption and may contain any other conditions which the concerned Local Government thinks fit to impose in accordance with the bye-laws made under this Ordinance."
The basis arguments, therefore, relevant to the disposal of these writ petitions can be summarized as follows: That a regulatory body has to be established before demand of a fee and this regulatory body has to set the terms of the licence, the local areas where dangerous trade or calling is to be allowed in a premises. That as the matter would involve dangerous trade and calling and a licence was required for regulating the said trade, there was also a requirement for providing special services to meet dangers in connection with such trade and these services are required to be indicated to the persons liable for the fee. Another argument which was raised was whether those bodies who have been previously paying the licence fee shall continue to do so.
The argument that the general facilities are to be provided in any area and also to a licensee of such trade or calling, has no persuasive value because such like general services are even otherwise to be provided by the local councils to the inhabitants of that locality and which expenditure is to be met through taxes and not through fee where the principle of quid pro quo will always be taken into account.
We find that the new law has changed the entire spectrum of the local bodies while re-distributing areas and re-assigning duties and powers, therefore, the bodies so created have now to meet the requirements reflected in Paragraph Nos. 89 & 90 of the 6th Schedule to the Ordinance 2001. We also see that the fee to be charged is against premises and some standard or yardstick has to be set for charging fee on the basis of the size and area of the premises, therefore, a de-novo exercise is required and has to be done even with respect to the old payees. Therefore, the old payees of the fee who are some of the petitioners before this Court have a right to demand what has been stated above under the law without being barred by Section 185 of the Local Government Ordinance 2001, in view of the changed circumstances and they have to be treated equally with the new licensee who have to be enrolled under the new dispensation. This answers the question with respect of the old payees.
Since the fee under reference is specific to dangerous trade and calling and Paragraph Nos. 89 & 90 of the 6th Schedule to the Ordinance requires certain regulations and there may also be yet other requirements vis-a-vis public safety, protection of environment and attending to the safety aspects and the risks involved, the local bodies have to, therefore, formulate a policy through by-laws in this connection or decide to adopt the model of the by-laws already given in the schedule after so declaring.
But, of course, the extent of obligations which the local bodies may like to burden themselves with, will also require an arithmetic calculation and the formulation of a formula on the basis of such calculation for fee to be charged against special services to be rendered.
For, therefore, meeting the new dispensation and the new requirements in the public interest, the local bodies have, therefore, to come out with a proper regulatory system and having done so, they have the locus-standi to ask for the fee from the beneficiaries.
The demand notices are just bald notices which have been issued on the basis of resolutions without keeping in view the requirements and policy of law under the new dispensation. We also find that the local bodies have as yet to make their own by-laws specific to the licence for dangerous trade while either adopting the model given or formulating their own. So, therefore, this Court holds that in the area where the fee under reference is chargeable, it can only be charged after observance of the exercise, pointed out above, and which exercise may be performed as early as possible for regulating and streamlining the entire system envisaged under the new dispensation.
These 53 Writ Petitions reflected in Scheudle-A attached to this judgment, are therefore, disposed of in these terms which no order as to cost.
The services of an amicus curiae became necessary keeping in view the circumstances of this case and the number of writ petitions which were involved, therefore, this Court engaged Dr. M. Mohy-ud-Din Qazi, Senior Advocate who is author of many books on Local Government, to act as such. This is to acknowledge the good services rendered by him, for which he deserves a minimum fee of Rs. 25,000/- which is to be equally shared by the Zila Council Sheikhupura and Zila Council Kasur, and is to be paid within the next 15 days by the respondents-local bodies under intimation to the Deputy Registrar (Judicial) of this Court or the amount will be recoverable from them in law.
(A.A.) Order accordingly.
PLJ 2006 Lahore 203 (DB)
Present : Sayed Zahid Hussain and Syed Sakhi Hussain Bokhari, JJ.
DIRECTOR GENERAL LOCAL GOVERNMENT & RURAL DEVELOPMENT DEPARTMENT, LAHORE--Appellant
versus
MUHAMMAD TUFAIL TARAR and 3 others--Respondents
I.C.A. No. 8 of 1999 in W.P. No. 12764 of 1998, heard on 16.2.2005.
Civil Procedure Code, 1908 (V of 1908)--
----S. 100--Law Reform Ordinance, (XII of 1972), S. 3--Appeal to High Court--Final Payment of bill--Liability admitted by appellant & writ petition under Art. 199 of Constitution of Pakistan, 1973, accepted by single judge in Chamber--Validity--Government functionaries are expected to be just, fair and reasonable in their approach towards citizens--Claim of respondent was not in dispute and not being paid simply for reasons that funds were not available, could not denied relief in writ jurisdiction--Held: It does not behave Government functionaries to deny what was due of a citizen and take shelter behind technicalities--No valid justification to interfere in judgment--Appeal dismissed. [Pp. 203 & 204] A, B & C
Mian Ghulam Hussain, Advocate for Appellant.
Ch. Safdar Hussain Tarar, Advocate for Respondents.
Date of hearing : 16.2.2005.
Judgment
Sayed Zahid Hussain, J.--By filing writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, a direction was sought by Respondent No. 1 that the respondents (in the petition) may be ordered to pay final bill of the petitioner amounting to Rs. 2,19,066/-. The petition was accepted through the judgment dated 9.12.1998 which has been assailed through this intra Court appeal.
The learned counsel contends that the proper remedy for the writ petitioner in view of the factual controversy involved in the case was to file a civil suit and writ petition was not maintainable in the circumstances. It is contended that the learned Single Judge has erred in law in allowing such a petition. The learned counsel for Respondent No. 1 supports the judgment of the learned Single Judge and contends that since the liability had been admitted by the Government functionaries, the petition was justifiably accepted by the learned Judge.
We have considered the respective contentions of the learned counsel and the material on the record has been considered. In the judgment it has been noted that liability had been admitted and the claim of the appellant had been examined by a Committee and on scrutiny, the claim was passed the same was not, however, paid due to paucity and lack of funds. Such a view was taken by the learned Judge in view of the report that had been filed before the Court. In the report submitted by the Secretary Local Government and Rural Development Department, Government of Punjab. It was conceded and stated that "The work was allocated to Mr. Muhammad Tufail, contractor. An amount of Rs. 4,13,934/- was paid to the contractor on account of the work done by him at site. The remaining amount worth Rs. 2,19,066/- has not been paid to the contractor due to non-availability of funds." No different plea could be taken by anyone, in view of such a clear stance. In such view of the matter, the learned Single Judge was fully justified to place reliance upon the report of Respondent No. 1 and to grant relief to Respondent No. 1 in view of the admitted liability. To relegate Respondent No. 1 to the Civil Court would have in the circumstances been merely an exercise in futility which could have resulted in prolongation of an unproductive litigation. Suffice it to observe that in a democratic set up, the Government functionaries are expected to be just, fair and reasonable in their approach towards the citizens. If the claim of Respondent No. 1 was not in dispute and he was not being paid simply for the reasons that the funds were not available, he could not be denied relief in writ jurisdiction. It does not behave the Government functionaries to deny that what is the due of a citizen, and take shelter behind technicalities.
As a result of the above, we find no valid justification to interference in the judgment rendered in the writ petition. The appeal is accordingly dismissed with costs.
(A.S.) Appeal dismissed
PLJ 2006 Lahore 204
Present: Umar Ata Bandial, J.
MUHAMMAD NADEEM AMIN--Petitioner
versus
CH. FARASAT ULLAH--Respondent
C.R. No. 1248 of 2005, decided on 14.9.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, R. 1, O. V, R. 24--Suit on negotiable instrument--Service of defendant in jail--Held: No final order be passed until trial Court is satisfied that a defendant has been duly served and been given a sufficient opportunity to arrange his defence--Production order in such circumstances, would advance cause of justice, for defendant to appear and be heard before passing the final order. [P. 206] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, R. 4 & O. V, R. 24--Setting aside ex parte decree--Special circumstances--Absence of proper service of a jailed defendant--Held: Quite apart from the rules of natural justice a reasonable opportunity to defend a lis is inherent to fundamental right of access to justice--Physical confinement in jail was certainly not a case of petitioner's wilful abstention nor was it an occurrence of a routine nature--It was indeed a good ground to explain his non-appearance as a special circumstance--Impugned order was set aside & case remanded. [Pp. 206 & 207] B & C
1991 SCMR 1964 & PLD 1998 SC 1445, ref.
Mr. Muhammad Sharif Chowhan, Advocate for Petitioner.
Mr. Khalid Wazir, Advocate for Respondent.
Date of hearing : 14.9.2005.
Order
The short question arising for determination in this civil revision petition is whether the petitioner who was the defendant in a suit under Order XXXVII CPC, filed by the respondent/plaintiff, can be proceeded ex parte by the learned trial Court when he was confined in jail and no order for his production in Court has been made. The relevant provision regarding service of summons on an imprisoned defendant is Order V Rule 24 CPC. No special procedure or consequential safeguards are provided therein for enabling a jailed defendant to represent himself in the proceedings. However, comment on this aspect of the case was made by the Hon'ble Supreme Court in Ghulam Rasool vs. Abdullah (1991 SCMR 1964) with the following observation:
"4. According to the appellant, his case was fixed for pronouncement of judgment on 22.3.1987. He had given oral instructions to a Petition Writer for drafting his written statement which was prepared by him and was presented by his son on 24.3.1987. The Court in spite of the knowledge with regard to the detention of the appellant did not direct the Jail authorities to produce him in Court on 5.4.1987. It is an admitted feature of the case that the appellant was convicted on a criminal charge and his absence was not willful. It was beyond his control. No process was issued to the appellant for 5.4.1987, as such ex parte proceedings could not be taken against him. The appearance of the minor son of the appellant was not appearance on behalf of the appellant. He was not a constituted attorney of the appellant. He had only informed about a fact, when it came to the notice of the Court that the appellant had been detained on a criminal charge, it was obligatory on the Court to have issued a process to the appellant. Thus, the Qazi had exercised the jurisdiction in proceeding ex parte illegally and against the provisions of law. The Majlis-e-Shoora and the High Court has not taken into consideration these facts. The ex parte decree, in the circumstances of the case, could be set aside on appeal by the appellate Court. The High Court has not adverted to this aspect of the case that no process was issued to the appellant, therefore, ex parte proceedings could not be have been drawn against him."
The foregoing view of the Hon'ble Supreme Court contemplates a trial Court to pass a production order of a detained defendant before taking ex parte action against him. It stands to reason that no final order be passed until the trial Court is satisfied that a prisoner defendant has been duly served and been given a sufficient opportunity to arrange his defence. A production order would advance the cause of justice for the defendant to appear and be heard before a final order is passed in the proceedings.
Learned counsel for the respondent has defended the impugned order dated 28.2.2005 dismissing the petitioner's application under Order XXXVII Rule 4 CPC that gave the petitioner's confinement as the "special circumstances" for his non-appearance and seeking setting aside of the ex-parte decree passed against the petitioner. He submits that the said application was filed on 11.2.2005 after considerable delay when the petitioner had been released from prison on 9.12.2004. He has also tried to distinguish the facts of the precedent case.
The salutary principle laid down by the Hon'ble Supreme Court in the precedent case referred above assures the right of a party to defend himself before a Court of law and not to be prejudiced on account of his imprisonment. Quite apart from the rules of natural justice a reasonable opportunity to defend is inherent to the fundamental right of access to justice recognized by the Hon'ble Supreme Court in Mehram Ali and others vs. Federation of Pakistan and others (P.L.D. 1998 SC 1445). The opportunity to defend necessitates that a party should be provided access to counsel and an opportunity to answer the case against him. In the light of the foregoing principle the ex parte order passed by the learned trial on 19.10.2004 was harsh for adopting the basis that the petitioner had been served on the report of the process server dated 5.10.2004; that the petitioner refused to accept service in jail. The trial Court ignored the other report on the summons by the Superintendent, District Jail, Lahore that the petitioner's refusal to accept service was to obtain legal advice and to appear in Court personally to comply with the judicial order. In other words, the petitioner was seeking an opportunity to access legal advice and to appear in Court personally. This opportunity was denied by the ex parte order dated 19.10.2004. Even the impugned order dated 28.2.2005 passed on the petitioner's application under Order XXXVII Rule 4 CPC for setting aside the ex parte decree passed on 9.12.2004 took notice of the report by the Superintendent, District Jail but failed to draw the necessary inferences from it. No consideration was given to the meaning of the statutory criterion of "special circumstances" in Order XXXVII Rule 4 CPC for setting aside an ex parte decree. The physical confinement of the petitioner in jail is certainly not a case of willful abstention by the petitioner nor is it an occurrence of a routine nature. It is indeed a special circumstance that prevented the petitioner from attending the Court in answer to its summon and constituted a good ground to explain the petitioner's non-appearance. To promote the interest of justice, it was necessary for the petitioner in this case to have been granted a substantive opportunity to defend himself. The impugned order accordingly suffers from material irregularity in the appreciation and application of the relevant law. It is therefore set aside.
The parties are directed to appear before the learned trial Court on 31.10.2005 when the petitioner's application for leave to defend shall be decided on merits. The learned trial Court shall endeavour to decide the suit pending before it at the earliest possible. Petition allowed.
(J.R.) Petition allowed.
PLJ 2006 Lahore 207 [Multan Bench Multan]
Present: Nazir Ahmad Siddiqui, J.
MIAN IJAZ HUSSAIN and another--Petitioners
versus
DISTT. RETURNING OFFICER and 2 others--Respondents
W.P. No. 4901 of 2005, decided on 11.8.2005.
Punjab Local Government Election Rules, 2005--
----Rr. 14 & 12--Constitution of Pakistan 1973 Art. 199--Rejection of nomination papers--Constitutional petition--Counsels of respondent could not utter even one word in defence--Held: Certificate in question relied upon by respondent with reference to his candidature for the seat of Naib Nazim, was proved to be a forged document, which could not be allowed to stand--Writ allowed--Nomination papers rejected. [P. 208] A
M/s. Altaf Ibrahim Qureshi and Ch. Zafar Iqbal Chadhar, Advocates for Petitioners.
Mr. Muhammad Ramzan Khalid Malik, A.A.G. for Respondent No. 1.
Malik Muhammad Rafique Rajwana, Mr. M. Tariq Rajwana, Syed Izharul Haq Gillani & Ch. M. Ashraf Dhallon, Advocates for Respondents Nos. 2 & 3.
Date of hearing : 11.8.2005.
Order
Nomination papers of Respondents Nos. 2 and 3 for Nazim and Naib-Nazim respectively; Union Council No. 82, Tehsil Burewala, District Vehari had been accepted by the Returning Officer vide his order dated 23.7.2005 despite an objection taken by the petitioners to the effect that Secondary School Certificate relied upon Respondent No. 3 was fabricated. Appeal of the petitioners against this order was also dismissed by the District Returning Officer, Vehari vide his order dated 26.7.2005, hence this Constitutional petition against the same.
Pursuant to the order of this Court dated 8.8.2005, Professor Abdul Hafeez Somroo, Controller of Examinations Board of Intermediate and Secondary Education, Hyderabad Sind has appeared in the Court, along with the relevant record. A perusal of the same with reference to the Secondary School Certificate in question with Seat No. 50883 (on the basis thereof Niaz Ahmad (Respondent No. 3) claimed to have qualified Secondary School Certificate Examination 1986 and filed his nomination papers for the seat of Naib Nazim), shows that the same is not genuine, rather patently forged one, inasmuch as parentage and date of birth recorded in the relevant record do not tally with the same. On my asking, respondent No. 3 (Niaz Ahmad) claimed to be son of Ahmad Yar caste Baluch with date of birth 1.1.1952 whereas in the relevant record father's name was shown to be Ahmad Khan, caste Memon with date of birth 4.7.1968. I have requested the learned counsel appearing on behalf of Respondent No. 3, (namely, Malik Muhammad Rafique Rajwana and Ch. Muhammad Ashraf Dallon) to check the record themselves. After remaining the same they felt sorry for their client and could not utter even one word in his defence. At this stage I also asked the Controller of Examinations (present in Court) to state as to whether certificate in question could be held to be genuine, in any manner. He firmly replied in negative and also verified that the report (appended with this petition as Annex-B) declaring the said certificate as bogus was correct by all means and the same had been issued from his office.
Viewed from above dimension I am fully convinced that the certificate in question relied upon by Respondent No. 3 with reference to his candidature for the seat of Naib Nazim, was a forged document and the same cannot be used for any purpose, what to talk of taking advantage with reference to his said candidature in the coming Local Bodies Election.
Resultantly this Constitutional petition is allowed by declaring the impugned order passed by the Returning Officer as well as District Returning Officer to be without lawful authority and of no legal effect; resulting in rejection of the nomination papers filed by Respondents Nos. 2 and 3.
At this stage Ch. Muhammad Ashraf Dhallon Advocate, learned counsel for the said respondent states that his client seeks pardon from this
Court and requests that penalty of Rs. 50,000/ as mentioned in the order of this Court dated 8.8.2005 be waived as he has sufficiently been penalized after having been ousted from the arena of election. It is also undertaken by him that he would be very careful in future. I was not inclined to accede to such a request but it is stated by the learned counsel appearing on behalf of the petitioners that whatever had happened today in the Court, would not only amount to teaching a good lesson but also an eye opener to the said respondent as well as to all others who intend to adopt such unlawful means for obtaining temporary worldly gains, therefore, the proposed fine qua the said respondent may be dispensed with; so giving due regard to it the proposed penalty to be awarded to the said respondent is hereby dispensed with, however, it is believed that the said respondent and his supporters in this ugly design would also seek pardon from Almighty Allah.
(J.R.) Writ allowed
PLJ 2006 Lahore 209 [Multan Bench Multan]
Present: Maulvi Anwarul Haq, J.
NADEEM AHMAD WAINS and another--Petitioners
versus
ELECTION TRIBUNAL and 5 others--Respondents
W.P.No. 6209 of 2005, heard on 24.10.2005.
Punjab Local Government Election Rules, 2005--
----R. 71--Re-counting of votes--Order challenged in Writ Petition--High Court set aside the order while directing the Tribunal to record evidence of the parties by giving them a chance to cross examine each other, before deciding the matter of recount. [P.210] A
PLD 1986 SC 483, 2004 SCMR 852 & 2000 MLD 746, ref.
Mr. M. Arif Alvi, Advocate for Petitioners.
Mr. Altaf Ibrahim, Advocate for Respondents Nos. 2 & 3.
Date of hearing : 24.10.2005.
Judgment
Election to the seats of Nazim and Naib Nazim in Union Council No. 83, District Sahiwal, was contested by the private parties. The petitioners were declared returned. Feeling aggrieved, the Respondents Nos. 2 and 3 filed an election petition. The petition was contested by the petitioners by filing a written statement denying the several allegations made therein. After the completion of the pleadings, an application was filed by the Respondents Nos. 2 and 3 stating that the Polling Staff at some Polling Station was closely related to the petitioners. In Polling Station of Chak No. 88/12-L the ladies were not provided with stamp and they were asked to put their thumb impressions. However, the ballots bearing thumb impressions as were cast in favour of the petitioners were counted as valid but those in favour of the Respondents Nos. 2 and 3 were rejected. It was further stated that in Chak Nos. 90, 93 and 88/12-L the ballots that came out of the boxes exceeded the polled ballots by one thousand. The 3rd allegation was that during the counting of votes, there was an electrical failure and it is apprehended that some ballot papers of the Respondents Nos. 2 and 3 were destroyed. with these allegations, the prayer was made that re-counting be ordered. The application was resisted by the petitioners. Vide order dated 14.10.2005 the learned Election Tribunal proceeded to order a re-count and to summon the election record on the ground that this would resolve the controversy.
Mr. M. Arif Alvi, Advocate/learned counsel for the petitioners with reference to the case of Kanwar Ijaz Ali v. Irshad Ali and 2 others (P.L.D. 1986 SC 483), Naveed Sadiq Khan and another v. Election Tribunal and others (2004 S.C.M.R. 852), Zulfiqar Ali v. Election Tribunal/Civil Judge 1st Class, Khanpur and 3 others (2000 MLD 746) and Liaquat Ali and another v. Election Tribunal, Sialkot and others (2003 SCMR 1313) argues that the impugned order is without lawful authority inasmuch as the learned Tribunal has passed the same on vague allegations and not on specific allegations and the order has been passed without recording evidence. Mr. Altaf Ibrahim, Advocate/learned counsel for Respondents Nos. 2 and 3, on the other hand, relies on the case of Sheikh Iftikhar-ud-Din and another v. District Judge, Bahawalpur Exercising Powers of Election Tribunal for Union Council of District Lodhran and 8 others.
Mr. Altaf Ibrahim, Advocate, complains that his clients have given up all other grounds and if evidence is to be recorded, it will take years. To my mind, the apprehension is mis-placed.
The writ petition accordingly is allowed. the impugned order dated 14.10.2005 of the learned Respondent No. 1 is declared to be without lawful authority and is set aside. He shall proceed to record the statement of any one of the election petitioners and then in rebuttal to record the statement of any one of the writ petitioners and of course, giving a chance to both the parties to cross-examine each other and thereafter to decide the matter of re-count. A copy of this judgment be immediately remitted to the learned Respondent No. 1. No. orders as to costs.
(J.R.) Writ allowed.
PLJ 2006 Lahore 211 (Rawalpindi Bench Rawalpindi)
Present: Syed Shabbar Raza Rizvi, J.
LIEUT MUHAMMAD ASJID IQBAL, EX PA-33756--Petitioner
versus
FEDERAL GOVERNMENT SECY. GENERAL MINISTRY OF DEFENCE, RAWALPINDI through THE CHIEF OF THE ARMY STAFF, GENERAL HEADQUARTERS, RAWALPINDI--Respondent
W.P. No. 2914 of 2003, heard on 11.1.2005.
Pakistan Army Act, 1952 (XXXIX of 1952)--
----S. 133--Constitution of Pakistan (1973), Art. 199--Army Officer--Conviction and removal from service ordered by Field General Court Martial, assailed--Constitutional jurisdiction--Extent of--Petitioner was serving officer of Pakistan Army when alleged offences were committed by him--Petitioner was thus, fully amenable to Pakistan Army Act, 1952--Record does not show that required procedure was not followed in his trial--Writ jurisdiction can be filed against "a person" in terms of Art. 199(5) of the Constitution--Art. 199(5) of the Constitution exclude from definition of "person", Supreme Court, High Court and Courts established under the law relating to Armed Forces--Petitioner was convicted by Field General Court Martial established under Pakistan Army Act 1952, therefore, such Court is not covered by expression "person" in view of provision of Art. 199(5) of the Constitution--Jurisdiction of High Court was thus, barred in present case. [P. 214] A
2004 PCr.L.J. 560; 2004 SCMR 1676; PLD 1996 SC 632 and 1999 SCMR 664 ref.
Col. Muhammad Akram, Advocate for Petitioner.
Ch. Muhammad Tariq, Dy A.G. alongwith Lt. Col. Iqbal Hashami, A.J.A.G. for Respondent.
Date of hearing : 11.1.2005.
Judgment
The petitioner, who was an Army officer, has challenged his conviction and sentence of 2« years RI, and also his dismissal from the service. The petitioner was tried by Field General Court Martial (F.G.C.M). His trial was terminated on 12.6.2001, the promulgation was made on 22.9.2001.
He has challenged the impugned order on ground of mala fide. The background is given in detail in the writ petition.
The learned counsel appearing for the petitioner contends that where statutory functionaries act malafidely or in a partial and unjust manner, the High Court in exercise of writ jurisdiction can take judicial notice and thereby can also grant relief to an aggrieved person. For the above reasons, the learned counsel for the petitioner prays that the trial by F.G.C.M of the petitioner be declared to be mala fide, illegal, ab initio void and of no legal effect. The learned counsel has relied upon Brig. F.B Ali's case, PLD 1975 SC 506. According to him in this judgment it has been held that if impugned action is without jurisdiction and bonafide then the bar of Article 199(3) of the Constitution shall not be operative. It may be noted that in the Brig. F.B. Ali's case the said officers were booked under Section 121-A of the PPC to be read with Section 2(1)(d) of the Pakistan Army Act, whereas in the instant case the petitioner was charged under Section 34 of Pakistan Army Act; neglect to obey standing orders, under Section 41, PAA; malingering, under Section 36(1) PAA; desertion from service, under Section 55 PAA; prejudice to good order and military discipline, again under Section 55 PAA; conduct to the prejudice of good order and military discipline, under Section 52 PAA behaving in a manner unbecoming of an officer and the character expected from an officer, therefore, the case of Brig. F.B. Ali is distinguished from the case of the present petitioner. Moreover, in Brig. F.B. Ali's case the Supreme Court has held that it seems quite settled that if the Court-Martial has tried a particular case with jurisdiction, then the ordinary Courts of Superior Jurisdiction well not interfere in exercise of their power of judicial review merely on the ground that some rule of procedure has not been followed. The learned counsel for the petitioner also referred Saboor Rehman vs. Government of Sind, PLD 1996 SC 801. I am afraid this judgment does not support the contention of the learned counsel for the petitioner rather it goes against him. In fact the decision of the High Court was upheld and the appeal was dismissed by the Hon'ble Supreme Court in Saboor Rehman's case (Majority View). The High Court had held that the impugned order was passed on evidence and for the same, High Court had refused to interfere. The Supreme Court further held "there is no doubt that in some of the cases it has been held that if a finding is based on no evidence, it will be a case of without jurisdiction, but the basic question is, as to whether the High Court in exercise of its Constitutional jurisdiction or this Court while hearing an appeal arising out of refusal of the High Court to set aside conviction can take upon itself the role of an appellate Court to reappraise the entire evidence on record and to analyze it and then to conclude that it is a case of no evidence in order to render the conviction as without jurisdiction. In my humble opinion, this is not permissible."
The learned counsel further contended that Section 133 of the Pakistan Army Act and Article 199(3) of the Constitution do not provide absolute bar to the jurisdiction of the High Court under Article 199(3). In this context he has referred to Shaheda Zaheer Abbasi's case PLD 1996 SC 632. On basic proposition referred to by the learned counsel, I have no disagreement with him but every case has to be decided on its own facts and circumstances. The above judgment is not applicable in this case. Lastly, the learned counsel has referred Federation of Pakistan vs. Khurshid Ahmad, 1999 SCMR 664, I am afraid this judgment is also distinguishable from the facts and circumstances of the case in hand. In the said reported judgment the respondent Khurshid Ahmad was a civilian working in the office of Judge, Advocate-General, whereas, in the instant case the petitioner at the relevant time was a serving officer.
The learned Deputy Attorney General Ch. Muhammad Tariq, appearing on behalf of the respondent has contended that Article 199(3) of the Constitution and Section 133 of PAA bar jurisdiction of this Court in matter in hand. He further contended that this Court must decide question of jurisdiction before touching the merits of the petition.
I have already rendered my own observation on the judgments referred to and relied upon by the learned counsel for the petitioner in the preceding paras 3 & 4. The learned counsel for the petitioner tried to convince the Court, on the strength of judgments he referred to above, that question of jurisdiction, do not come in his way. I do not agree with the learned counsel for the petitioner as I have already dilated upon in my effort to demonstrate that the facts were different in cases cited by the learned counsel for the petitioner, therefore, the said reports do not advance his case on point of jurisdiction also. The learned Deputy Attorney General has referred Capt. Syed Jamil Ali Shah vs. Federal of Pakistan, 2004 P.Cr.L.J 560. According to the said judgment, Court-Martial is part of ordinary law of land are not to be confused with Martial Law Courts, which are brought into existence on suspension of ordinary law. Such Courts are established institutions with well known procedure which cannot be described arbitrary, perverse or lacking in fairness in any manner.
The learned Deputy Attorney General has also referred to Federal Government, Ministry of Defence vs. Sepoy Liaqat Ali wherein competence of the Field General Court Martial was upheld. Para-8 of the judgment is reproduced as under:--
"As regards competence and jurisdiction of the Field General Court Martial, similar situation arose in Jail Petition No. 103 of 1995 in the case of Muhammad Afzal v. The State and this Court in terms of a detailed order dated 14.10.1996 had declared that Field General Court Martial had competently and justifiably convicted Muhammad Afzal petitioner therein. Undoubtedly, respondent Sepoy Liaqat Ali at the relevant time was on duty in his Unit., and as member of the Armed Forces of Pakistan was completely amenable to Pakistan Army Act. Furthermore, clause (3) of Article 199 of the Constitution was quite clearly attracted, and thus, jurisdiction of the High Court was barred with regard to the conviction recorded and sentence awarded by the Field General Court Martial."
In the instant petition, the petitioner was also a serving officer of the Pakistan Army when the alleged offences were committed by him. Therefore, he was fully amenable to the Pakistan Army Act. Apparently the record does not show that the required procedure was not followed in his trial. Therefore, I am convinced, that 2004 SCMR 1676 is fully applicable in this case and this Court is bound to follow the above judgment in view of provisions of Article 190 of the Constitution.
Besides, in the present controversy/point of jurisdiction, provisions of Article 199(5) are relevant to mention which have not been touched by the learned Deputy Attorney General as well as learned counsel for the petitioner. The Constitutional/writ jurisdiction can be exercised against a "person" Article 199(5) of the Constitution excludes from the definition of "person" the Supreme Court, a High Court and a Court established under the law relating to the Armed Forces. The petitioner was convicted by a Court i.e. Field General Court Martial established under Pakistan Army Act, hence, the said Court is not covered by expression "person" in view of the provisions of Article 199(5) of the Constitution, hence jurisdiction is barred.
In view of my findings expressed above, this writ petition is dismissed.
(A.A.) Petition dismissed
PLJ 2006 Lahore 214
Present: Sayed Zahid Hussain, J.
DR. MAJAHID ALI MANSOORI and others--Petitioners
versus
UNIVERSITY OF THE PUNJAB through VICE-CHANCELLOR, NEW CAMPUS, LAHORE and 2 others--Respondents
W.P. No. 13654 of 2004, heard on 21.2.2005.
(i) University of the Punjab Act, 1973--
----Ss. 17 & 26 (2)(s)--Constitution of Pakistan (1973), Art. 199--Writ in the nature of quo-warranto calling upon respondent (employee) to show under what authority of law he was holding post of Registrar University of the Punjab--Registrar is to be appointed by Syndicate on such terms and conditions as may be determined by such body--Decision to fill up vacancy of post of Registrar either by promotion or by direct recruitment lies with Vice Chancellor of the University whereas power of appointment vests with Syndicate--Petitioner's initial appointment was made by Vice Chancellor and such appointment eventually received blessing and approval of Syndicate--Decision of Syndicate does not suffer from any procedural or other legal flaw and infirmity--Writ of quo warranto would not be issued where issuance of such writ would be futile--Where holder of public office was ineligible for appointment to that office and remains ineligible upto the date of hearing of writ petition he would undoubtedly a usurper and in that case writ of quo-warranto would be issued--Respondent had shown from decision taken by Syndicate, that his appointment was in conformity with provisions of University of the Punjab Act 1973 and University statutes, no justification to issue writ of quo-warranto was available. [Pp. 217 & 218] A, B & C
(ii) University of the Punjab Act, 1973--
----S. 17--Power to make appointment of Registrar of University--Syndicate although has power to make appointment of Registrar and for that matter Selection Board does not come in to the picture, High Court considered it appropriate that University lays down criteria and procedure for making appointment to the post of Registrar reflecting transparency and fairness, in order to ward off any insinuation or allegation of arbitrariness. [P. 219] D
1996 SCMR 1349; 1997 SCMR 1730; 2000 SCMR 1720; AIR 1975 Delhi 66; PLD 1970 SC 98; PLD 1986 Lahore 310; Halsbury's Laws of England 4th ed. Para 177 vol. 1; PLD 1969 SC 42, ref.
Hafiz Tariq Naseem, Advocate for Petitioners.
Dr. A. Basit, Advocate for Respondents.
Date of hearing : 21.2.2005.
Judgment
Respondent No. 3, who was appointed as Registrar, University of the Punjab Lahore by the Vice Chancellor under Section 15(3) and (4)(vi) of the University of Punjab Act, 1973 on contract basis for a period of six months with effect from 1.11.2000 and continued to hold that post as such, his appointment has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which is primarily in the nature of quo warranto calling upon him "to show under what authority of law he is holding the post of Registrar University of the Punjab Lahore." Report and parawise comments were called, whereafter the writ petition was admitted to hearing and written statement has also been filed by the respondents.
It is contended by the learned counsel for the petitioner that an advertisement for the post of Registrar University of the Punjab Lahore had been published in the daily "Jang" dated 15.6.2000 and applications were invited for the same but instead of completing that process Respondent No. 3, was appointed as Registrar vide Office Order dated 31.10.2000 with effect from 1.11.2000 on contract basis for a period of six months, which appointment was illegally made. According to the learned counsel similar orders were repeated thereafter and same arrangement was continued for years till the filing of the present petition. It is contended that such appointment was wholly unwarranted and illegal, in view of In re: Abdul Jabbar Memon and others (1996 SCMR 1349) & Pakistan Railways through G.M., Lahore and another v. Zafarullah Assistant Electrical Engineer and others (1997 SCMR 1730). It is contended that when the law prescribes a mode of doing a thing in a particular manner, it is to be done in that manner alone and not otherwise.
The learned counsel for the respondents has made reference to Section 17 of the University of the Punjab Act 1973 to contend that power to appoint a Registrar of the University vests with the syndicate who has since made the appointment of Respondent No. 3, in its 1660th meeting held on 30.10.2004, the writ of quo warranto is liable to be dismissed summarily as the said respondent is holding the post on the strength of the order of appointment passed by the competent authority. It is further contended that the appointment of Registrar, University of the Punjab could be made either by selection or directly and that in making appointment of Respondent No. 3, the Syndicate has not violated any law. Reference in this context has been made to page 462 of the University Calendar, relating to terms and conditions of service of University Employees.
There is no cavil that when a vacancy occurs in a public office the same has to be filled in the manner prescribed and the conditions/procedure laid down for the same are to be adhered to. There is also no cavil that adhoc appointments cannot be extended for indefinite length of period and the regular appointments should be made strictly in accordance with law. In the instant case reference to the relevant provisions of the University of the Punjab Act, 1973 would show that there are certain designated officers of the University, which include the "Registrar", Section 10(1)(ix) of the Act, 1973 may be referred for that purpose. Under Section 17 of the Act, the "Registrar" is supposed to be "a whole time officer of the University and shall be appointed by the Syndicate on such terms and conditions as may be determined by it." (underlined by me). It also lays down the duties and functions to be performed by him. There is envisaged a "Syndicate", composition whereof is mentioned in Section 25 of the Act, 1973. Under Section 26(1) the Syndicate is the Executive body of the University. In view of Section 26(2)(s) of the University of the Punjab Act, 1973 it has the power inter Alia to "appoint University Teachers and other Officers on the recommendations of the Selection Board for Teaching and other posts in the initial pay of Rs. 450/- per mensem or above". The statute of the University of the Punjab 6(1) envisages a Selection Board whose functions as per statute No. 7 include the making of recommendations for Teaching and other posts (after consideration of the applications received in response to the advertisement) to the Syndicate. The method of appointment of Registrar laid down in University Employees terms and conditions of service page 462 of the University Calendar is by Selection or by direct appointment, Footnote No. 1, on the said page empowers the Vice Chancellor to decide "whether the post be filled in by promotion or by direct recruitment vide Paragraph No. 2 Chancellor's Committee dated 3.12.1973" The provisions mentioned above would show that the "Registrar" of the University has been considered as a category apart from the Teachers and other Officers in the matter of appointment. He is to be appointed by the Syndicate on such terms and conditions as may be determined by it, in view of the provisions of Section 17 of the Act. In contradistinction to other appointments envisaged by Section 26(2)(s) of the Act, the said provision does not make mention of recommendations of the Selection Board. It is thus evident that decision to fill up the vacancy of the post of Registrar i.e. by promotion or by direct recruitment lies with the Vice-Chancellor of the University whereas the power of appointment vests with the Syndicate.
Although, belatedly yet the Syndicate had in its 1653rd meeting held on 23.8.2003 recorded the proceedings that "Chief Justice (Retd.) Sardar Muhammad Iqbal pointed out that Registrar and his staff was so efficient that they did never commit even a petty mistake while preparing agenda and recording minutes. He state that all the anticipatory orders regarding appointment of the Registrar and subsequent extension in his term of appointment passed by the Vice-Chancellor to date under Section 15(3) of the University of the Punjab Act 1973, on behalf of the Syndicate may be confirmed. This was unanimously agreed to." This was so even before the filing of this writ petition. In the 1660th meeting held on 30.10.2004 the appointment of Respondent No. 3, as Registrar came to be considered again when after lengthy deliberation, despite a dissenting note by Petitioner No. 1, the Syndicate took the decision that "the Syndicate confirmed the anticipatory orders passed by the Vice-Chancellor regarding appointment of Col. (R) Masud-ul-Haq as Registrar, University of the Punjab, Lahore upto 31.10.2004 on contract basis. Additionally, the Syndicate further appointed Col. (R) Masud-ul-Haq as registrar for a further period of one year commencing from 31.10.2004." Even if it be assumed for a moment that there was same lacuna in the appointment of Respondent No. 3, the same stood removed and ratified with the approval and decision of the Syndicate who as mentioned above was he competent authority in view of Section 17 of the Act in the matter of appointment of Registrar of the University.
Insofar as the observations appearing in "Capt. (Retd) Muhammad Naseem Hijazi v. Province of Punjab through Secretary , Housing and Physical Planning and 2 others (2000 SCMR 1720), relied upon by the learned counsel for the petitioner that "The invalidity of appointment may arise not only from one of qualifications but also from violation of legal provision for appointment" are concerned, the same are undoubtedly entitled to highest respect and regard. But as noticed above in the instant case the appointment of Respondent No. 3, eventually received blessing and approval of the Syndicate. The decision of Syndicate does not suffer from any procedural or other legal flaw and infirmity. Suffice it to observe that aim and object to a writ in the nature of quo warranto is to pose a question to the person holding public office to show his authority as to under what law he claims to hold such office and if it is proved that public office is being usurped then the writ may be issued by the Court. It is settled law that in order to succeed in a petition of quo warranto it is to be shown that such a disqualification to hold a public office must exist and persist not only on the date of institution of the petition but also at the time of decision by the Court. The principle well settled qua a writ of quo warranto is that a writ of quo warranto is not issued if it is found that the issuance of such a writ will be futile. If the holder of public office is ineligible for appointment to that office and remains ineligible up to the date of the hearing of the writ petition he is undoubtedly a usurper and the principle of futility of writ would not be attracted. However, in Hari Shankar Prasad v. Sukhdeo Prasad (AIR 1954 Allahabad 227 (FB)) the principle of futility of issue of a writ of quo warranto was applied and the writ to quo warranto was refused as the holder of the office though not qualified on the date of his appointment thereto acquired the necessary qualification during the pendency of the petition. This principle was followed and applied by the Full Bench of the Delhi High Court in P.L. Lakhanpal v. Ajit Nath Ray, Chief Justice of India, New Delhi and others (AIR 1975 Delhi 66) wherein the appointment of Chief Justice of India had been assailed on the ground that the appointment of Mr. Justice A.N. Ray was in violation of the principle of seniority but writ of quo warranto was refused. Similar principle is deducible from Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan (PLD 1970 SC 98) and Sardar Asseff Ahmad Ali v. Mr. Muhammad Khan Junejo and others (PLD 1986 Lahore 310). In Halsbury's Laws of England fourth edition paragraph No. 177 of Volume-1, it has been dealt as follows:
"An information in the nature of a quo warranto was not issued, and an injunction in lieu thereof will not be granted, as a matter of course. It is in the discretion of the Court to refuse or grant it according to the facts and circumstances of the case. The Court would inquire into the conduct and motives of the applicant, and the Court might in its discretion decline to grant a quo warranto information where it would be vexatious to do so, or where an information would be futile in its results".
It may be observed that in "Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42), it was observed by their lordships that "a writ of quo warranto in particular is not to issue as a matter of course on sheer technicalities on a doctrinaire approach".
Since the respondent has shown from the decision taken by the Syndicate, that his appointment was in conformity with the provisions of the Act and the University statutes, there is no justification to issue a writ of quo warranto. The reliance of the learned counsel for the petitioner on a Division Bench judgment dated 22.12.2004 in ICA No. 582/2000 is inpat inasmuch as that the precedent case was not that of writ of quo warranto and in that case it was found as a fact on the petition of an aggrieved party that the appointments were made on the intervention of Prime Minister Secretariat in violation of the merit. The ratio deducible from the precedent case is not attracted to the present case.
The above view taken by the Court is based purely on consideration of the existing provisions as have been brought to the notice of the Court but it need to be observed that though the power to make appointment of the Registrar vests with the Syndicate and for that matter the Selection Board does not come in to the picture, it would be appropriate that the University lays down a criteria and procedure for making appointment to the post of Registrar reflecting transparency and fairness, in order to ward off any insinuation or allegation of arbitrariness.
In view of the above, this petition is dismissed with no order to costs.
(A.A.) Petition dismissed
PLJ 2006 Lahore 219
Present: Muhammad Muzammal Khan, J.
KAMAL-UD-DIN CHAUDHRY and 2 others--Appellants
versus
NADEEM BABAR--Respondent
F.A.O. No. 74 of 2005, decided on 21.4.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, Rr. 1,2 & O. XLIII, R. 1--Specific Relief Act (I of 1877), S. 12--Suit for specific performance of agreement to sell--Temporary injunction restraining defendants from alienating property in question till final disposal of suit, assailed--Appellants (defendants) entered into agreement to sell property in question, after receipt of earnest money--Defendants themselves agreed to get "No Objection Certificate" from concerned Housing Society without which they could not transfer property in question in favour of plaintiffs--Suit filed by defendants against concerned Housing Society stood conceded by defendant society but the same was not decided on account of some formal defects--Defendants were duty bound to remove those defects and to have case decided--Tentatively, apparent lapse appears to be on part of defendants, out of ulterior motives--No lapse was pointed out on part of plaintiffs--In cases involving contract of sale of immovable property time was not essence of contract--Prima facie, arguable case was thus, made out by plaintiffs and in case of alienation by defendants they would suffer irreparable loss--Balance of convenience was also in favour of plaintiffs--Defendants being in possession of property in question, would face no inconvenience if injunction issued was not vacated--Appeal against issuance of injunction was thus, not warranted. [P. 222] A
(ii) Transfer of Property Act, 1882 (IV of 1882)--
----S. 53--Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1, 2--Discretion vesting in Civil Court by terms of O. XXXIX, Rr. 1, 2 C.P.C. is not subject to provisions of S. 53, Transfer of Property Act 1882. [P. 222] B
(iii) Specific Relief Act, 1877 (I of 1877)--
----S. 12--Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1, 2--Objection of defendants that without requiring plaintiffs to deposit balance sale price, injunction prayed should not have been issued was repelled in as much as, defendants had already returned earnest money through pay order and in addition, they were not interested in payment of balance sale price--Besides, property in question, being in use of defendants, they cannot be heard to say that they would not part with possession of property and plaintiffs be required to deposit entire sale price, without any benefit to them--Order impugned i.e. issuance of temporary injunction being lawful does not call for interference. [P. 222] C
PLD 1975 Lahore 492 and NLR 1984 Civil 323, ref.
Mr. Tariq Aziz, Advocate for Appellants.
Sayed Najam-ul-Hassan Kazmi and Rasaal Hassan Syed, Advocates for Respondent.
Date of hearing : 21.4.2005.
Order
Instant first appeal is directed against order dated 8.2.2005 passed by learned Civil Judge, Lahore for its recall/setting aside whereby application of the respondent for issuance of temporary injunction was accepted and the appellants were restrained from alienating the suit property till final disposal of the suit.
Succinctly, relevant facts of the case are that the appellants being owners of the property consisting of House No. 138/139, Block-G, Model Town Cooperative Society, Lahore being successors of late Feroz Din, the original owner entered into an agreement to sell the same with the respondents through a written agreement dated 23.4.2004. The sale price was settled at Rs. 33,000,000/- out of which an amount of Rs. 50,00,000/- was paid as earnest money. According to the terms settled between the parties, duly incorporated in the agreement, the appellants were to get "No Objection Certificate" from the Model Town Society within 60 days whereafter the sale-deed was to be executed within 30 days. It was further envisaged in the agreement that in case of delay in issuance of "No Objection Certificate", the period for execution of sale-deed shall be extended with the consent of the parties. The appellants contacted the society for issuance of "No Objection Certificate" but were required to produce a decree of the Court, declaring them legal heirs of Feroz Din (deceased), the original owner. The appellants filed a suit for their declaration of being heirs/legal representative of the deceased Feroz Din, against Model Town Cooperative Society but inspite of concessional written statement by the society, suit is reported to be still pending. The appellants on 6.9.2004 issued a notice of rescission of agreement and returned through a pay order of the earnest money received by them. The respondent in response, filed a suit for specific performance with the averments that he had always been ready and willing to perform his part of contract by paying the balance sale price but the appellants failed to get the requisite "No Objection Certificate" without which the sale-deed could not be executed. The respondent also filed an application under Order XXXIX, Rules 1 and 2 C.P.C. in his suit praying temporary injunction that the appellants may be restrained from alienating the property agreed to be sold in his favour to any body else.
The appellants being defendants in the suit contested it and opposed issuance of injunction by filing their written statement/written reply, admitting the agreement to sell between the parties dated 23.4.2004. Stance of the appellants was that they had exerted to execute sale-deed and filed a suit against the society as well but failed hence while opting option of cancellation of agreement according to its clause (6), the same was cancelled and the earnest money was returned. The learned Civil Judge who was cognizant of the suit, after hearing the parties,, issued the injunction prayed by accepting application of the respondent vide his order dated 8.2.2005. The appellants have now filed this instant appeal wherein the respondent has appeared through his counsel, in response to notice by this Court.
Learned counsel for the appellants submitted that agreement to sell dated 23.4.2004 stood cancelled by invocation of its clause (6) and the earnest money received by the appellants had already been returned those, they should not have been restrained from dealing with title of their property. It was further argued that the appellants had exerted hard to fulfil their commitment but inspite of their efforts, suit against the society is not being decided on account of formal defects therein, hence the agreement to sell cannot be performed. It was further argued that time was essence of the contract on expiry of which, the appellants are not bound to perform their part of contract. It was also submitted on behalf of the appellants that principle of lis pendens is there to protect rights of the respondent, if any, and its presence, the appellants could not have been restrained from alienating their owned property. According to him, injunction issued by the trial Court without requiring deposit of balance of sale price from the respondent is unwarranted hence the same deserves to be vacated. It was further submitted that no prima facie/arguable case existed in favour of the respondent hence, his application should have been dismissed.
Learned counsel for the respondent refuted the arguments of the appellants, supported the impugned order and urged that according to the agreement, the appellants were to get "No Objection Certificate" from Model Town Society and unless and until such certificate was not obtained, sale-deed could not be executed. Learned counsel for the respondent expressed his willingness to pay the entire sale-price on two weeks notice, in case the terms of the agreement, including NOC is fulfilled. It was further submitted that injunctive order issued by the trial Court cannot be vacated solely on the ground that lis pendense is there to protect rights of the respondent. According to him, in case of alienation, the dispute would become more complex which would multiply the litigation between the parties. It was urged with emphasize that the appellants could not unilaterally cancel the agreement as no such authority was given to them by its clause (6). Prima-facie/arguable case in favour of the respondent was assertively claimed besides the submissions that he will suffer irreparable loss/injury if the injunction issued is vacated. It was submitted on behalf of the respondent that balance of convenience lies in his favour and he may not be required to deposit the balance sale-price because suit property is in use of the appellants. Learned counsel for the respondent offered to pay the balance sale price in case the possession of the property is handed over to the respondent till issuance of NOC or execution of sale-deed.
I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, the appellants entered into an agreement to sell their property after receipt of earnest money of Rs. 50,00,000/-. They themselves agreed to get "No Objection Certificate" from Model Town Housing Society without which they could not transfer the suit property in favour of the respondent. Suit filed by the appellants against the society stood conceded by the defendant therein but is being not decided on account of some formal defects. It was the responsibility of the appellants to remove the defects in their suit and to have the same decided. Tentatively, the apparent lapse appears to be on the part of the appellants, out of ulterior motives. The appellants could not point out any lapse on part of the respondent in discharging his part of the contract, without which the agreement could not be rescinded unilaterally. Penalty clause of the agreement prima facie is not meant for the purpose, for which it has been used and the same, prima facie, will not relieve the appellants of their liability to perform their part of contract. Similarly in the cases involving contract of sale of immovable property, time appears to be not essence of the contract and inspite of clause (6), suit of the respondent can be decreed to the judicial discretion of the trial Court. All this brings me to hold that a prima facie/arguable case existed in favour of the respondent and in case of alienation by the appellants he would suffer an irreparable loss/injury. Balance of convenience also lies in his favour and the appellants being in actual physical possession/use of the property would face no inconvenience if the injunction issued is not vacated.
As regards principle of lis pendense, no doubt, it is there to protect rights of the respondent in case of his success in the suit but even on availability/applicability of principle acknowledged by Section 53 of the Transfer of Property Act, 1940, Courts are not denuded from their jurisdiction to restrict the alienation of the suit property. However, the discretion vesting in the Civil Court by terms of Order XXXIX, Rules 1 and 2 C.P.C. is not subject to the provisions of Section 53 of Transfer of Property Act, 1940. Reference in this behalf can be safely made to the judgments in the cases of Sardar Wali Muhammad versus Sardar Muhammad Iqbal Khan Mokal and 7 others (PLD 1975 Lahore 492) and Rustam Ali versus Chaudhry Mukhtar Ahmad Anwar (NLR 1984 Civil 323).
Adverting to the objections of the appellants that without requiring the respondent to deposit the balance sale price, injunction prayed should not have been issued. It goes without staying that the appellants have already returned the earnest money through a pay order dated 6.9.2004 which was produced by the respondent in original, before the trial Court and remained their without encashment and in view of their stance, they are not interested in payment of balance sale price. Besides it, they have been offered the payment of entire sale price in case they hand over possession of the property to the respondent but they paid no heed to it. Above all, the property being in use of the appellants, they cannot be heard to say that they will not part with the possession of the property and the respondent be required to deposit the entire sale price, without any benefit to him.
For the reasons noted above, the order impugned was not only lawful/justified but the same could not, as well, be shown, as opposed to any known canon for administration of justice, or in any manner was arbitrary/financial hence, no interference in the order of the trial Court is called for. Consequently, this appeal being devoid of force is dismissed with no order as to costs but in the interest of justice, the trial Court is directed to conclude the proceedings in the suit before ensuing winter holidays i.e. till 24.12.2005.
(A.A.) Appeal dismissed
PLJ 2006 Lahore 223 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
MUBASHIR ALI KHAN--Petitioner
versus
GOVERNMENT OF PUNJAB through its SECRETARY HOME DEPARTMENT LAHORE and 2 others--Respondents
W.P. No. 460 of 2005, heard on 31.3.2005.
Anti Terrorism Act, 1997 (XXVII of 1997)--
----S. 11.EE. r.w. 4th Schedule--Constitution of Pakistan 1973, Art. 199--Held: Home Secretary had given finding that petitioner was not associated with any prescribed religious organization and also that no material was available to sustain the continuous entry of his name in 4th Schedule--Respondent was directed to strike off his name from the said list. [P. 225] A
Mr. Abdul Aziz Khan Niazi, Advocate for Petitioner.
Mr. M. Qasim Khan, A.A.G. for Respondents.
Date of hearing : 31.3.2005.
Judgment
The petitioner feels aggrieved of the entry of his name in the list under 4th Schedule to Anti-Terrorism Act, 1997, in terms of Section 11-EE of the said Act. An order for his detention was also passed by the same Authority i.e. the Home Secretary to the Government of the Punjab on 9.10.2004. The petitioner filed a representation. The Home Secretary heard the matter. He found his detention to be improper and ordered his release but observed that his name shall continue to remain in the said list.
Reply has been filed on behalf of the Home Secretary. He has stated that on the recommendation of the Provincial Police Officer, Special Branch, Punjab and DPO, Khanewal, he had placed his name in the said 4th Schedule. There is a report attached with the reply stating that three criminal cases stand registered against the petitioner is various Police Stations and that he is a member of proscribed organization.
Learned counsel for the petitioner contends that the impugned portion of the order runs against the very reasoning stated by the Home Secretary for ordering the release of his client. Further contends that his client is not a member of the said Organization and that the said cases were false and he has since been acquitted. Learned AAG under instruction from the Police Officer present with record does confirm that the petitioner has since been acquitted in all the three cases and that no other material is available against him. The learned AAG, however, had contended that a remedy is provided under the said Section 11-EE(3) of the said Act in the form of an appeal to the Provincial Government.
I have perused the writ petition, the reply and the documents placed on record by both the parties. I deem it appropriate the produce the following paras-4 and 5 of the order dated 20.11.2004:--
"4. A perusal of the record placed before me reveals prima facie that the detenu has no association with any religious organization fanning sectarianism in the society. There is nothing on record to prove any such linkage with any proscribed religious out fit. The DSP (Legal) has conceded to the effect that no documentary evidence is on record to prove that contention. It was because of this reason that no case whatsoever, was registered against him in the last three years.
I have carefully examined and considered the contentions of both the parties. I am of the considered opinion that the activities of the detenu are not prejudicial to public safety as well as public order. The representation of the petitioner is hereby accepted. The detenu shall be released forthwith if not required in any other case. However, his name shall continue to remain in the 4th Schedule of Anti-Terrorism Act, 1997."
It will be seen that the Home Secretary is the competent person both under the said Section 11-EE of the said Act and Section 3 of the MPO. It is his own finding that the petitioner is not associated with any proscribed religious organization. In view of the said findings and the admitted fact that the petitioner stands acquitted in the aforesaid criminal cases and further that no case is now pending against him and that no material is available to sustain the continuous entry of his name in the 4th Schedule, I find that the petitioner is entitled to the relief being claimed by him in this writ petition and it will not serve any purpose to ask him to file an appeal before the Provincial Government.
The writ petition accordingly is allowed and the respondents are directed to strike off the name of the petitioner from the 4th Schedule read with Section 11-EE of the Anti-Terrorism Act, 1997. No orders as to costs.
(J.R.) Writ Petition allowed
PLJ 2006 Lahore 225
Present: Mian Saqib Nisar, J.
RAJA AMEER HAIDER--Petitioner
versus
GOVERNMENT OF PAKISTAN through SECRETARY, MINISTRY OF MINORITIES, CULTURE, SPORTS, TOURISM & YOUTH AFFAIRS, ISLAMABAD and 5 others--Respondents
W.P. No. 9668 of 2005, decided on 31.10.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O. 7, R. 11(d)--Evacuee Trust Property (Management & Disposal) Act, 1975, Ss. 8 & 14--Rejection of plaint--Bar against jurisdiction of civil Court--Question regarding the evacuee status of the property--Held: Chairman of Board has exclusive jurisdiction to decide such issue, so civil Court has no jurisdiction in same behalf--Order of rejection of plaint maintained. [P. 226] A
Rana Maqbool Ahmed Khan, Advocate for Petitioner.
Mr. Shaukat Umar Pirzada, Advocate for Respondents Nos. 3 & 4.
Date of hearing : 31.10.2005.
Order
The petitioner filed a suit for the declaration, against the respondents, claiming that the property in dispute is not an evacuee trust property, rather is a Shamlatdeh; the respondent/Board through its Secretary moved an application under Order VII, Rule 11 CPC for the rejection of the plaint, which application was dismissed by the learned trial Court vide order dated 13.7.2004; the respondent/board preferred a revision, which has been accepted and the plaint has been rejected.
Learned counsel for the petitioner contends that there is a distinction between the bar of jurisdiction of the Civil Court to entertain a suit and the bar of law about the institution of the suit. According to him, the plaint could only be rejected under Order VII, Rule 11 CPC, if it is barred by law and when the question of bar of jurisdiction of the Court has been raised, it is the duty of the Court to frame an issue and necessarily record the evidence, and thereafter to decide the matter. But in the present case, this procedure has not been followed.
Heard. Infact, the Order VII, Rule 11 CPC is not an exhaustive regarding the rejection of the plaints. Obviously according to the sub-section (d) of Order VII, Rule 11 CPC, the plaint could be rejected, when the suit is barred under any law e.g. bar of resjudicata or limitation, etc. However, besides the above, the Court has the power to dismiss the suit in the nature of rejecting the plaint, where there is a clear law ousting the jurisdiction of the Civil Court. In this case, according to Section 8 read with 14 of the Evacuee Trust Property (Management & Disposal) Act XIII of 1975, if a question arises, whether any property is evacuee trust property or not, it is the Chairman of the Board, who shall have the exclusive jurisdiction to decide the issue and his decision should be the final. As per Section 14 of Act XIII of 1975, the Civil Courts cannot take the cognizance of such matter, therefore, in such circumstances, the petitioner instead of approaching the Civil Court, should have approached the Chairman of the Evacuee Trust Board, by raising the question about the status of the property. Therefore, I am constrained to hold that the Civil Court has no jurisdiction in this behalf and the learned revisional Court has rightly rejected the plaint of the petitioner, which order is akin to the dismissal of the suit. Moreover, I am not impressed with the argument that the Court could only decide the matter after framing of the requisite issues and enabling the parties to lead evidence. Suffice it to say that such procure or course can be dispensed with, where the ouster of jurisdiction, as in the present case, is eminent on the basis of clear provisions of law. In the light of above, this petition has no merits and the same is hereby dismissed.
(J.R.) Petition dismissed
PLJ 2006 Lahore 227
Present: Ch. Ijaz Ahmad and Muhammad Khalid Alvi, JJ.
SECRETARY EDUCATION (SCHOOLS) GOVERNMENT OF PUNJAB, CIVIL SECRETARIAT, LAHORE and 2 others--Appellants
versus
TARIQ MEHMOOD, PTC TEACHER, GOVERNMENT PRIMARY SCHOOL GOPE-RAY NO. 2, NIAZ BAIG, LAHORE--Respondent
I.C.A. No. 476 of 2004 in W.P. No. 10639 of 2004, decided on 9.3.2005.
Law Reforms Ordinance, 1972 (XII of 1972)--
----S. 3(2)--Intra Court Appeal--Maintaining--Respondent was a civil servant--Right of appeal qua with holding of his salary before appellants and thereafter a right of second appeal before the Service Tribunal--I.C.A. was dismissed as non-maintainable. [Pp. 228 & 229] A & B
PLD 1984 SC 344, PLD 1975 Lah. 379, PLD 1985 SC 107 and PLD 1975 Lah. 1339, ref.
Mr. M. Hanif Khattana, Addl.A.G. for Appellants.
Date of hearing: 9.3.2005.
Order
The brief facts out of which the present appeal arises are that respondent filed W.P. No. 10639/2003 with the following prayer:--
"In the light of above submissions it is respectfully prayed that the respondents may kindly be ordered to pay the salaries of the petitioner from 1.12.1995 to 31.5.2001 without any further delay.
It is further prayed that Respondent No. 3 especially be ordered to clear the petitioner's back benefits without creating any hindrance and making it the matter of prestige."
Learned single Judge accepted the Constitutional petition vide impugned judgment dated 15.9.2004. The appellants being aggrieved filed this Intra Court Appeal.
Learned counsel of the appellants submits that respondent was confined in jail in a criminal case only for one month and was released on bail and finally acquitted vide judgment dated 20.12.1999. The respondent claimed the salary for the period from 1.12.1995 to 31.5.2001. The respondent was not entitled to salary for the said period as the respondent did not attend office and performed the duties of the appellants. He further submits that respondent was not performing duties under the appellants and in fact he was performing duties under DDEO Lahore Cantt when he was involved in criminal case. He further submits that learned Single Judge erred in law to direct the DDEO Lahore City to release the salary of the respondent. He further submits that impugned order is passed by the learned single Judge without adverting to the parawise comments of the appellants filed by the appellants in response to the direction of the learned single Judge. When the learned counsel of the appellants is asked as to whether Intra Court Appeal is maintainable in view of proviso of Section 3(2) of Law Reforms Ordinance, 1972 he submits that no appeal or revision is available to the appellant against withholding of salary of the respondent as well as to the respondent. Therefore, Intra Court Appeal is maintainable.
We have given our anxious consideration to the contentions of the learned counsel of the appellant and perused the record.
It is admitted fact that respondent is a civil servant. Salary is part and parcel of terms and conditions as is evident from Section 2(e) of Punjab Civil Servants Act, 1974 wherein the word pay is defined which is synonymous to the word salary. The respondent has a right of appeal qua withholding of salary of the respondent before the appellants by virtue of Section 21 of Punjab Civil Servants Act, 1974 and thereafter respondent has right to file appeal before the Service Tribunal by virtue of Section 4 of Punjab Service Tribunal Act, 1974. The Honourable Supreme Court has defined word `proceedings' in Karim Bibi's case (PLD 1984 S.C. 344 which is to the following effect:--
"The crucial words are the "original order". It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the Constitutional petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, provided in the relevant statute. Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings was subject to an appeal under the relevant law.
The conclusion was expressed thus:--
"Apparently the meaning of the expression "original order" is the order with which the proceedings under the relevant statute commenced."
The aforesaid view was also approved by the Honourable Supreme Court subsequently in Muhammad Abdullah's case (PLD 1985 S.C. 107). It is also settled principle of law that in case respondent has not availed the remedy provided under the statute even then the Intra Court Appeal is not maintainable as the law laid down by this Court in the following judgments:
M. Jamil Chaudhry vs. M. Hanif Chaudhry (PLD 1975 Lahore 379).
Yusuf Ali Khan vs. Muhammad Javed Iqbal Cheema (PLD 1975 Lahore 1339).
In view of what has been discussed above, this Intra Court Appeal is not maintainable in view of proviso of Section 3(2) of Law Reforms Ordinance, 1972 as the law laid down in the aforesaid judgment, therefore, the same is dismissed.
(J.R.) Appeal dismissed.
PLJ 2006 Lahore 229 [Multan Bench Multan]
Present: Muhammad Nawaz Bhatti, J.
Mst. BUSHRA PARVEEN--Petitioner
versus
SELECTION/RECRUITMENT COMMITTEE OF EDUCATORS (2004) DISTRICT KHANEWAL through DISTRICT CO-ORDINATION OFFICER KHANEWAL ITS CHAIRMAN and 3 others--Respondents
W.P. No. 6155 of 2004, decided on 8.3.2005.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petitions--Appointment of Senior Elementary School Teacher--Held: Petitioner secured 6 marks and rival contestant secured 57 marks--Grievance was against the mode of selection on the basis of interview--Factual controversy was involved which could not be resolved in writ jurisdiction--Petition dismissed. [P. 231] A & B
2002 PLC (C.S.) 712; 2001 SCMR 1493; 1987 SCMR 2078; 1993 SCMR 618; PLD 1987 SC 582 and PLD 2001 SC 116 ref.
Mr. Muhammad Arif Alvi, Advocate for Petitioner.
Mr. M.R. Khalid Malik, Addl.A.G. for Respondents.
Mrs. Zubeda Sahar, DEO (W) Khanewal in person.
Date of hearing: 8.3.2005.
Order
Brief facts giving rise to the present writ petition are that the respondent DCO Khanewal invited the applications for the appointment of Educators in different Schools of District Khanewal. The petitioner applied for the post of Senior Elementary School Educator (Arts) against a vacant post at Govt. Girls Middle School 54/15-L Mianchannu District Khanewal. She having educational career of first Division from Matric to B.Ed annexed all documents with her application. The merit list was prepared by the Recruitment Committee headed by Respondent No. 2. According to the said merit list, the petitioner was placed at Serial No. 3 while Respondent No. 4 Mst. Kaukab Jahan was placed at Serial No. 5. Two applicants, namely, Uzma Chand and Qaisra Anjum placed at Serial Nos. 1 & 2 of the merit list, were not joined as they opted to join at some other place, therefore, instead of appointing the petitioner, Respondent No. 3 appointed Respondent No. 4 as SESE (Arts). The petitioner approached Respondent No. 2 for the redressal of her grievance but he paid no heed to the same. Hence, this writ petition.
On 19.11.2004, comments were called from Respondent No. 3 which have been filed, wherein it is stated that a provisional merit list was compiled and the petitioner was placed at Serial No. 3. After the process of interview a final merit list was prepared. In the final merit list, the petitioner was placed at Serial No. 4 whereas Respondent No. 4 was placed at Serial No. 3. As candidates at Serial Nos. 1 and 2 joined some other stations, Respondent No. 4 being senior in the final merit list was appointed after awarding 10 additional marks on the basis of Union Council of school in accordance with the recruitment policy.
It is contended by learned counsel for the petitioner that the petitioner secured 60 marks without 10 additional marks on the basis of Union Council of the school whereas Respondent No. 4 inspite of calculating 10 additional marks on the basis of the Union Council of the school secured 57 marks but the respondent Selection Committee with mala fide intention gave 5 marks of interview to Respondent No. 4 and gave one mark of interview to the petitioner and issued appointment letter in favour of Respondent No. 4 and this act of the respondents has deprived the petitioner of her valuable rights. He while placing reliance on Muhammad Azam vs. Senior Superintendent of Police, Lahore (2002 PLC (C.S.) 712), has argued that the selection solely on the basis of interview without regard to performance in written examination could not be said to be an acceptable mode of selection because in that case Appointing Authority would have absolute discretion to reject or accept a candidate at its sweet-will and, therefore, the act of the respondent is in violation of the mode of selection determined by this Court in the said citation. As such, he prayed that this petition may be accepted and Respondents Nos. 1 to 3 may be directed to appoint the petitioner as SESE (Arts) in Government Girls Middle School Chak No. 54/15-L Mian Channu District Khanewal instead of Respondent No. 4.
The learned Additional Advocate-General has supported the comments filed by Respondent No. 3 DEO (W) Khanewal who is present in Court. He further stated that the factual controversy is involved in this case which cannot be resolved in writ jurisdiction.
I have heard learned counsel for the petitioner as well as the learned Additional Advocate-General and perused the comments submitted by Respondent No. 3.
It is an admitted position that the petitioner secured 60 marks and Respondent No. 4 secured 57 marks. The only grievance of the petitioner is against the mode of selection on the basis of interview and in this regard, he has relied upon Muhammad Azam vs. Senior Superintendent of Police, Lahore (2002 PLC (C.S.) 712). The facts of the case cited by learned counsel for the petitioner are different from the facts of this case, therefore, the above-referred authority cannot be relied upon. Even otherwise the factual controversy is involved in this case which cannot be resolved in writ jurisdiction.
On being questioned the DEO(W) present in Court informed that no other post of SESE (Arts) is available at present and the mode of selection adopted by the recruitment committee is in accordance with the policy of the Government.
In view of the circumstances of the case and placing reliance on Mst. Kaniz Fatima through Legal Heirs vs. Muhammad Salim and 27 others (2001 SCMR 1493), Muhammad Afzal and others vs. Government of Pakistan and others (1987 SCMR 2078), Muhammad Younas Khan and 12 others vs. Government of NWFP through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618), Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/O Finance, Islamabad and 6 others (PLD 1987 SC 582) and Messrs Ittehad Cargo Service and 2 others vs. Messrs Syed Tasneem Hussain Naqvi and others (PLD 2001 SC 116), no interference can be made for the appointment of the petitioner through he Constitutional petition as Senior Elementary School Educator (Arts) in Government Girls Middle School Chak No. 54/15-L Mian Channu District Khanewal. As such this writ petition is dismissed. No order as to costs.
(J.R.) Petition dismissed
PLJ 2006 Lahore 232 (DB)
Present: Sayed Zahid Hussain and Syed Sakhi Hussain Bokhari, JJ.
DISTRICT CO-ORDINATION OFFICER, PAKPATTAN and 2 others--Appellants
versus
SAFDAR ALI and another--Respondents
Rev. Appl. No. 75 of 2005 in I.C.A. No. 54 of 2004, decided on 14.10.2005.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 114 & 151, O.XVIIL, R.I--Law Reforms Ordinance, 1972, S. 3--Review application against judgment in I.C.A.--Competency--Held: Applicant did not file any I.C.A. against the judgment of Single Judge, so he could neither object to the dismissal of I.C.A., which was filed by other contestant nor can be regarded as an aggrieved person--Review petition being misconceived was dismissed. [P. 233] A
PLD 1987 SC 145.
Mr. Muhammad Yaseen Chughtai and Ch. Aamer Rehman, Addl. A.G. Punjab for Applicants.
Date of hearing: 14.10.2005.
Order
This is petition under Section 114 and Order 47, Rule 1 read with Section 151 of the Code of Civil Procedure, 1908 by Khadim Hussain seeking review of judgment dated 1.6.2005 passed in I.C.A. No. 54/2004 by which the appeal filed by the District Coordination Officer and two others was dismissed.
The learned counsel has been heard whose prime contention is that though the applicant had not assailed the judgment of the learned Single Judge yet in the Intra Court Appeal (filed by the District Coordination Officer and others) he was one of the respondents and should have been issued notice before dismissing the appeal so that he could be heard or file cross objections.
After hearing the learned counsel we are not persuaded to accept his contentions. It is correct that the judgment of the learned Single Judge directly affected the petitioner herein, which judgment had been passed after notice and hearing him. By that judgment his appointment was declared as illegal. Surprisingly he did not assail the same, and acquiesced in the matter. The Intra Court Appeal which was dismissed by us on 1.6.2005 had been filed by the Government officials only which was not even admitted to hearing. He was one of the respondent in that appeal. There is no known principle of law nor brought to our notice whereunder while dismissing an appeal in limine the respondent should necessarily be issued notice or heard. Admittedly the judgment of the learned Single Judge rendered in the writ petition was not assailed by him, (despite being aware of the same) he, therefore, can neither object to the dismissal of Intra Court Appeal nor can be regarded as an "aggrieved person" as contemplated by Section 114 and Order 47, Rule 1 of the Code of Civil Procedure, 1908 to maintain the review petition. By virtue of the judgment of the learned Single Judge a determination of the controversy and lis was made which on account of non-filing of appeal by the present petitioner became conclusive and final. In Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others (PLD 1987 S.C. 145) distinction between judgment in rem and judgment in personam was highlighted by their Lordships. It was observed at Page-167 that "If he was party then the judgment of the competent Court as a plea is a bar or as an evidence conclusive between the same parties upon the same matter directly in question in another Court or in another action between the same parties in the same Court. In legal parlance this bar is known as estoppel by judgment or res judicata." Having come to the conclusion in the precedent case that it was determination of the grievances of the individuals and the judgment was in personam it was observed that "So, long this determination was not set aside in appeal, the judgment remained in the field irrespective of the quality of determination as to whether it was incorrect on questions of fact or law. The rights of the parties thereunder assumed finality and took the colour of a "past and closed transaction." The rule culled out from Pir Bakhsh case is that a non-appealing party to the litigation is bound by the determination made by the Court. In the instant case the judgment of the learned Single Judge not having been assailed by the petitioner the same attained finality qua him he is precluded now to challenge the same through the side wind or to object the dismissal of Intra Court Appeal filed by someone else.
The review petition in the circumstances is entirely misconceived and is dismissed accordingly.
(J.R.) Petition dismissed.
PLJ 2006 Lahore 233 [Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
Mst. HUSINA BIBI--Petitioner
versus
STATION HOUSE OFFICER, P.S. SHAHR SULTAN, DISTRICT MUZAFFARGARH and 5 others--Respondents
W.P. No. 5743 of 2005, decided on 13.10.2005.
Constitution of Pakistan, 1973--
----Arts. 35 & 199--Criminal Procedure Code, (V of 1898), S. 491--Violation of fundamental right--Offence of Zina (Enforcement of Hudood) Ordinance, 1979, S. 16--Fundamental rights--Held: Petitioner, a sui juris muslim girl could not be kept in Dar-ul-Aman for an indefinite period in violation of fundamental rights guaranteed by Constitution--High Court allowed petitioner to accompany her husband, however the investigation of case was to proceed on merits--Further held: Findings of the judge Family Court regarding the jactitation of her previous marriage would decide the fate of the criminal case. [Pp. 235 & 236] A, B & C
2004 SCMR 219 ref.
Mr. Muhammad Ayub Khan Alizai, Advocate for Petitioner.
Syed Asif Raza Gillani, Advocate for Respondent No. 3.
Muhammad Aslam, Assistant, Darul Aaman D.G. Khan.
Hazoor Bakhsh, father of Mst. Husina Mai, in person.
Date of hearing: 13.10.2005.
Order
This case was partly heard in the early hours of the day and was kept pending till 10.45 a.m. when it was called for the next time Syed Asif Raza Gillani, Advocate did not appear and Muhammad Hashim petitioner's father appeared and informed that his counsel had left the Court premises on account of ailment of his son.
Earlier Mst. Husina and Ghulam Nazak filed Writ Petition No. 773/05 which was heard by my learned brother Ijaz Ahmad Chaudhry, J. and was disposed of on 7.3.2005 with the direction that the Investigating Officer, present in Court, would obtain the thumb-impression of Mst. Husina Bibi by producing her before the Illaqa Magistrate and send the same to the Finger Print Bureau alongwith nikahnama produced by the complainant. On receipt of the report of Finger Print Bureau the investigation of the case would further be carried out and in the meanwhile the Investigating Officer could also verify nikahnama produced by the complainant after checking the record of the Union Council and recording the statements of the witnesses. As regards the release of the petitioner from Dar-ul-Aaman it was directed that she would be lodged in Dar-ul-Aaman D.G. Khan till the completion of investigation and would only be released if as a result of the report of the Finger Print Bureau it was proved that she was not earlier married.
Through this Constitutional petition Mst. Husina Bibi has again prayed that she being a sui juris having contracted marriage with Ghulam Nazak with her free will and consent and the criminal case FIR No. 18/05 dated 15.11.2004 under Section 16 of the Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979 at P.S. Shaher Sultan District Muzaffargarh was mala fide with the object of pressurizing her for disconnecting her relations with her legally husband as the said marriage was not approved by her parents.
My learned brother Ijaz Ahmad Chaudhry, J. on 21.9.2005 directed that the notice be issued to Respondents Nos. 1 to 3 to appear in person and also to Respondent No. 2 for arranging production of the petitioner in the Court.
In compliance with the above said order Mst. Husina Bibi petitioner has been produced today. Muhammad Hashim petitioner's father/ complainant of the said case is also present. Allah Dawyia S.I. submits that pursuant to the Court order dated 7.3.2005 the thumb-impression of the petitioner was obtained and the same were sent for verification to the Finger Print Bureau and the report of the Finger Prin Bureau was received but the same was objected to by the District Police Officer, Muzaffargarh on the ground that the thumb-impression mark Exh.PA/1 and sent to the Finger Print Bureau was in fact the thumb-impression of Imtiaz Ahmad and not Mst. Husina Bibi. Therefore, the thumb-impression of Mst. Husina Bibi obtained earlier were sent for verification on 16.7.2005 but the result of the report is yet awaited.
I am afraid how in this state of affair Mst. Husina Bibi can be kept in Dar-ul-Aaman for an indefinite period which is not only violative of fundamental rights under Art. 10 of the Constitution but also militates against the right of marriage protected by Constitution under Art. 35. Again through order dated 7.3.2005 the I.O. was also directed to verify the nikah nama produced by the complainant by checking the record of the Union Council and recording the statement of the witnesses. The Police Officer, present in Court submits that on 7.7.2005 Allah Bakhsh S.I. had appeared in the Court. Allah Bakhsh, S.I. having since transferred the investigation of the case was entrusted to him. He, however, admits that the perusal of the police file shows that no such efforts was made by Allah Bakhsh S.I. All the facts and circumstances lead me to conclude that this is a fit case where Intizar Hussain claiming Mst. Husina Bibi his legally wedded wife be directed to approach the Family Court in terms of law declared by Hon'ble Supreme Court of Pakistan in PLD 1984 SC 95 and get a finding about the validity/genuineness of his nikah. It has been held in the said judgment by the Hon'ble Supreme Court that the findings of the Family Court in such like cases is not only final and conclusive but binding even up to Supreme Court. I am, therefore, satisfied that despite lapse of seven months from the decision of this Court in earlier Writ Petition No. 773-05 on 7.3.2005 for one reason or the other the matter is being kept pending. Even the District Police Officer Muzaffargarh did not care to take action against the person responsible for sending the thumb-impression of a wrong person and for the act of public servant petitioner who being sui juris cannot suffer and be detained in Dar-ul-Aaman indefinitely against her wishes. Prima facie petitioner claims herself as the wife of Ghulam Nazazk even otherwise as declared by Hon'ble Supreme Court of Pakistan in Abdul Waheed Roperi vs. Aasima Jehangir (2004 SC 219) it is the exclusive right of a sui juris muslim girl to decide with whom to marry and she cannot be compelled to disassociate her relations with her husband and for the simple reason that her marriage is not approved by her parents.
The up shot of the above discussion is that this petition is allowed. The petitioner being a sui juris muslim girl is directed to be released from Darul Aman. She may accompany her husband, namely, Ghulam Nazak. However the investigation of the case shall proceed on its merits and in the meanwhile Intizar Hussain may, if so advised, approach the Court of competent jurisdiction. It has been informed by the learned counsel for the petitioner that suit for jactitation of marriage filed by Mst. Husina Bibi is pending before the Judge Family Court, Muzaffargarh and Intizar Hussain has already entered appearance in the said suit. As pointed out above in such like cases finding of the Judge Family Court is conclusive and is binding on all the Courts. This petition is accordingly disposed of, however, the findings of the Judge Family Court shall decide the fate of criminal case. The ASI shall ensure that no person shall cause illegal harassment or interferes in the matrimonial life of the petitioner.
(J.R.) Order accordingly.
PLJ 2006 Lahore 236 (DB) [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq and Ijaz Ahmad Chaudhary, JJ.
Mst. NASREEN BEGUM and 2 others--Appellant
versus
PROVINCE OF PUNJAB through DISTRICT COLLECTOR, VEHARI and others--Respondents
R.F.A. No. 111 of 1998, heard on 24.3.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R.11 r/w S. 96--Rejection of plaint--Assailed--Held: Nothing was admitted on record--Trial Court relied upon its imagination while proceeding to reject plaint raising substantial questions involving title and possession of the valuable immoveable property--Such issues of law and facts could not be resolved without a proper trial--Case remanded for decision on merits. [P. 239] A
Mirza Aziz Akbar Baig and Mr. Muhammad Ramzan Khalid Joyia, Advocates for Appellants.
Malik Zahoor Hussain Tahim, Advocate for Respondent No. 3.
Nemo for others.
Mian Arshad Latif, Advocate for Respondent No. 5.
Date of hearing: 24.3.2005.
Judgment
Maulvi Anwar-ul-Haq, J.--On 26.3.1997 the appellants filed a suit against the respondents. We deem it appropriate to narrate the contents of the said plaint in some detail. It was stated that the suit property mentioned in detail in the plaint was owned by Lekh Raj and his wife Mst. Shanti Devi. Both the said persons embraced Islam and adopted the Muslim names as Ghulam Mustafa and Mst. Ghulam Fatima respectively. They had three sons, namely, Malik Rab Nawaz, Haq Nawaz and Shah Nawaz. The appellants and Respondents Nos. 2 to 4 are the widow and children of the said Malik Rab Nawaz. The said three sons of Ghulam Mustafa and Mst. Fatima went to India on 27.7.1963. Malik Rab Nawaz came back to Pakistan but the said two sons opted to permanently reside in India. They again converted to Hinduism and adopted the names of Hans Raj Maita and Anil Kumar Batra. They are Respondents Nos. 5 and 6 respectively. The Respondent No. 6 died and Respondents Nos. 6-A to 6-D are his LRs. In view of the said circumstances, only Malik Rab Nawaz was the sole heir of Mst. Ghulam Fatima and Ghulam Mustafa. Then a reference was made to a gift under which the Respondents Nos. 5 and 6 claimed title. The said gift was stated to be illegal and void because of absence of declaration, acceptance and delivery of possession. In January, 1997 Respondent No. 5 came to Pakistan on the death of the said Malik Rab Nawaz and claimed his share in the said property both as an heir and as a donee. Reference was also made to some exchange mutations and revenue entries with reference to the suit land in the Muslim names of Respondents Nos. 5 and 6. These were also stated to be void. With these averments, a declaration was sought that the appellants and Respondents Nos. 2 to 4 are the sole owners of the suit property and Respondents Nos. 5 and 6 have nothing to do with it and the several transactions were also sought to be declared as void. The suit was conceded by Respondents Nos. 2 to 4. Respondents Nos. 5 and 6 filed a written statement raising several objections. They took the plea that the suit land had not devolved upon them by way of inheritance but by means of a gift. They also pleaded that Malik Rab Nawaz was the attorney of the said respondents and entered into several transactions treating them to be the owners of the land and that he remained an attorney till his death. The gift deed was stated to be valid and legal. On 4.12.1997 the appellant's filed an application praying for a decree in terms of Order XII, Rule 6 CPC alleging that the Respondents Nos. 5 and 6 have not denied the conversion to Hinduism. In response, the Respondents Nos. 5 and 6 stated that the matter can be decided only after recording evidence. On 14.4.1998 the Respondent No. 5 filed an application under Order VII, Rule 11 CPC for rejection of the plaint. He referred to some admissions made by the appellants and Respondents Nos. 2 to 4 to the effect that Rab Nawaz had been an attorney of Respondents Nos. 5 and 6. Then they referred to a suit filed by Respondents Nos. 2 to 4 on 17.11.1996 containing an admission that they had purchased land from Haq Nawaz and Shah Nawaz. The plaint was rejected on 6.5.1997. Then there is reference to an application by Respondents Nos. 2 to 4 for transposition which was later withdrawn. Then there was a reference to a Mutation No. 183 attested on 23.2.1998 during the pendency of the suit after the death of Shah Nawaz Respondent No. 6 which was later reviewed and that an appeal is pending. Their case was that since they have been admitted to be Muslim, the plaint is liable to be rejected. In their reply, the several facts were denied.
Learned trial Court took up both the applications together. Now regarding the application filed by the appellants, it was held that the Respondents Nos. 5 and 6 have denied the allegations made in para-4 of the plaint regarding conversion and there is no admission. Now thereafter he proceeded to discuss the application under Order VII, Rule 11 CPC and proceeded to reject the plaint vide order and decree dated 10.10.1998.
Learned counsel for the appellants argue that the learned trial Court proceeded to reject the plaint on erroneous assumption in violation of the provisions of Order VII, Rule 11 CPC as interpreted by the superior judiciary. According to him, there is no admission on record and the admissions pleaded by the respondents have to be proved in accordance with law. Learned counsel for Respondent No. 5, on the other hand, contends that in view of the facts pleaded in the written statement and the said application the rejection of the plaint is legal and proper.
We have gone through the trial Court records, with the assistance of the learned counsel for the parties. We have already narrated above in some detail the contents of the plaint that was filed by the appellants. Now it will be seen that as stated in the earlier part of his order, by the learned trial Court, this is a case of facts pleaded in the plaint and denied in the written statement. Now what has to be seen is as to whether upon an examination of the plaint and upon proof of the facts narrated therein, the appellants would be entitled to a relief or not. We have no manner of doubt in our mind that in case it is proved that the gift was not made by late Ghulam Mustafa and further that the Respondents Nos. 5 and 6 converted to hinduism and were hindus at the time of death of Ghulam Mustafa and Mst. Ghulam Fatima, the appellants would certainly be entitled to the relief being claimed by them.
Now the learned trial Court has somehow or the other proceeded to observe that the facts narrated in the said application or the written statement are admitted. We have not been able to find any such admission, at least, in the plaint and there is no other pleadings available on record apart from the plaint and the written statement. Apparently, no additional pleadings were called for by the learned trial Court. The learned trial Court has, thus, simply relied upon its imagination while proceeding to reject the plaint raising substantial questions involving title and possession of the valuable immovable property. So far as the rejection of the plaint of earlier suit filed by Respondents Nos. 2 to 4 and the mutation of inheritance of Respondent No. 6 pendente lite which in any case stands reviewed is concerned, the same shall have to be examined after being duly tendered in evidence.
Having, thus, examined the records, we do not find any grounds being made out for rejection of the plaint filed by the appellants. In view of the allegations made by the appellants and the denial by the Respondents Nos. 5 and 6, there are issues of law as well as facts to be tried in the suit and this cannot be done without a proper trial after giving reasonable opportunity to both the parties to lead their respective evidence. The RFA accordingly is allowed. The impugned order and decree dated 10.10.1998 of the learned trial Court is set aside. The result would be that the suit shall be deemed to be pending before the learned Senior Civil Judge, Vehari, before whom the parties shall appear on 26.4.2005. The records shall immediately be remitted to the said learned Senior Civil Judge. Issues arising out of the pleadings of the parties shall be framed and their evidence will be recorded. In view of the joint request being made by the learned counsel for the parties, it is directed that the learned trial Court shall take all steps to conclude the trial and decide the suit in accordance with law within one year of the said date.
A copy of this judgment be immediately remitted to the learned Senior Civil Judge, Vehari.
No orders as to costs.
(J.R.) Case remanded.
PLJ 2006 Lahore 239
Present: Jawwad S. Khawaja, J.
MUHAMMAD ASLAM alias BHOOLA--Petitioner
versus
MUMTAZ HUSSAIN BABOO and another--Respondents
Civil Revision No. 300 of 2000, heard on 13.12.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O.II, R. 2--Bar on subsequent suit--Held: Petitioner took possession of the disputed property after judgment of the previous suit filed by the respondent--Subsequent suit for possession was based on fresh cause of action, so it was not barred under O.II R.2--Petition dismissed. [P. 240] A, B & C
Ch. Muhammad Sarwar, Advocate for Petitioner.
Ch. Javed Rasool, Advocate for Respondents.
Date of hearing: 13.12.2005.
Judgment
This revision petition impugns the concurrent findings of the learned trial Court dated 19.10.1995 and of the learned lower Appellate Court dated 27.12.2000, whereby a suit filed by the respondent/plaintiff was decreed.
The facts of the case have been set out in the impugned judgments and need not therefore, be reproduced in extenso.
The petitioner/defendant claimed that the matter in contention had been determined in an earlier suit filed by the respondent/plaintiff, namely, Mumtaz Hussain Baboo. It was argued that the present suit was barred under Order 2, Rule 2 CPC.
I have gone through the judgment (Ex.P-1) dated 18.6.1988 rendered in the earlier suit. I have also considered the contents of the plaint in the present suit. The allegation therein is that the petitioner took forcible possession of the disputed property measuring 2« marlas after the decision in the earlier suit and it is for this reason that the present suit was filed claiming possession from the petitioner.
The petitioner relied on an agreement between him and Fazal Din, father of the respondent/plaintiff, in support of his possession. I have examined the said agreement (Ex.P-4) dated 22.7.1981. It is clear from the earlier judgment (Ex.P-1) that the father of the respondent was held to have no right in the property. Secondly, the agreement (Ex.P-4) itself indicates that possession was to be delivered on 15.10.1981 after payment by the petitioner, of the sums of money specified in the agreement. The earlier suit was filed on 8.10.1981. This itself was sufficient to show that the petitioner was not in possession of the suit property when the earlier suit was filed. The second suit, which seeks possession of the suit property, was, therefore, based on a different cause of action. It follows that the second suit, out of which the present petition arises, was not barred by Order II, Rule 2 CPC.
The above aspects of the case have been duly considered by the learned Courts below by holding that the present suit was maintainable. The learned Courts have also taken note of the fact that a temporary injunction, directing status quo to be maintained, had been issued in the earlier litigation on 8.10.1981.
In the foregoing circumstances, I find the impugned decrees to be consistent with the record. Furthermore, learned counsel for the petitioner was unable to advert to any such jurisdictional error or other legal infirmity in the impugned judgments, which would justify interference therein while exercising revisional jurisdiction. In these circumstances, I find no merit in this petition, which is, therefore, dismissed.
(J.R.) C.R. dismissed.
PLJ 2006 Lahore 241 [Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
MUHAMMAD MURAD and others--Petitioners
versus
ALLAH BAKHSH and others--Respondents
Civil Revision No. 88-D of 2004, decided on 12.10.2005.
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 4--Interpretation of law--Retrospective effect--Held: S. 4 has no retrospective effect and is applicable at the time the succession of the propositus opens--Succession of a Muslim opens at the moment he died and same is neither dependent nor suspended till happening or non-happening of certain event--Original owner admittedly denied in 1951 notwithstanding the fact that property in dispute was mutated in 1974--Provision of of S. 4 of the Ordinance, 1961 was not in vogue in 1951, so it could not be relied upon by petitioners--Revision dismissed. [P. 243] A & B
2002 CLC 819 ref.
Mr. Muhammad Naveed Hashmi, Advocate for Petitioners.
Date of hearing: 12.10.2005.
Order
The petitioners who are legal heirs of Wali Muhammad and Muhammad Bakhsh pre-deceased sons of Ramzoo the original owner of the property in dispute, are aggrieved of the judgment and decree dated 18.11.2000 passed by learned Civil Judge 1st Class, Multan dismissing their suit for declaration and permanent injunction and also the judgment and decree dated 24.9.2003 passed by learned Additional District Judge, Multan dismissing their appeal against the above judgment and decree of the trial Court.
The facts succinctly are that Ramzoo the original owner of the property in dispute, died in the year 1951 and his two sons Wali Muhammad and Muhammad Bakhsh died during his life time. It appears that some property owned by said Ramzoo actually devolved on him through registered sale-deed dated 24.10.1974 and same was mutated in favour of his legal heirs (respondents) by excluding the petitioners being the sons and daughters of said Wali Muhammad and Muhammad Bakhsh, pre-deceased sons of Ramzoo. The petitioners, feeling aggrieved of said mutation, filed a suit before the learned trial Court on 14.3.1993 claiming that as the property in dispute was originally owned by Ramzoo, therefore, they being the sons and daughters of Wali Muhammad and Muhammad Bakhsh, his pre-deceased sons, were entitled to inherit the same in terms of Section 4 of Muslim Family Laws Ordinance, 1961. The suit was contested by the respondents/ defendants on the ground that as at the time of death of Ramzoo in 1951, Section 4 of the said Ordinance was neither in force nor the same had retrospective effect, hence, the petitioners/plaintiffs were not entitled to claim the benefit of Section 4 of Muslim Family Laws Ordinance, 1961. The learned trial Court framed issues, recorded evidence of the parties and vide judgment and decree dated 18.11.2000 dismissed the suit of the petitioners/plaintiffs. Against the said judgment and decree, the appeal filed by the petitioners/plaintiffs was also dismissed by the learned Additional District Judge, Multan on 24.9.2003, hence this petition.
Learned counsel for the petitioner has argued that applicability of Section 4 of Muslim Family Laws Ordinance, 1961 is to be considered from the date when the property actually devolved on Ramzoo deceased and not from the date of his death in 1951. He has therefore, argued that two Courts below have acted illegally and with material irregularity by non-suiting the petitioners/plaintiffs on the ground that as at the time of death of Ramzoo in 1951 Section 4 of above Ordinance was not applicable, hence the petitioners were not entitled to claim share in the inheritance of Ramzoo deceased.
Heard. Record perused.
The Muslim Family Laws Ordinance, 1961 was enforced in its totality on 2nd of March, 1961 with no retrospective effect. Section 4 of the said Ordinance, reads as under:
"Succession. In the event of the death of any son of daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be, would have received, if alive."
A perusal of the above Section 4 clearly indicates that it is applicable when the succession of propositus opens. It is an established principle of Muslim Law that succession of a Muslim opens the moment he dies and same is neither dependent nor suspended till happening or non-happening of certain event. Admittedly, Ramzoo the original owner died in 1951 notwithstanding the fact that property in dispute was mutated in his name in 1974. Learned counsel for petitioners has not been able to point out any provision of law making succession of Ramzoo effective upon happening or non-happening of some future event in order to bring the case of the petitioner within the ambit of Section 4 of the Muslim Family Laws Ordinance, 1961 with retrospective effect. Since, admittedly when Ramzoo died in 1951 provisions of Section 4 of the above Ordinance were not in vogue nor the said provisions have been made effective retrospective, the two Courts below acted within the framework of law by non-suiting the petitioners and excluding them from inheritance of Ramzoo deceased, the original owner. Reliance is placed on the case "Muhammad Yaqub and others versus Muhammad Ibrahim and others" (2002 CLC 819). Resultantly, this Civil Revision fails and is dismissed in limine, leaving the parties to bear their own costs.
(J.R.) Revision dismissed.
PLJ 2006 Lahore 243
Present : Ali Nawaz Chowhan, J.
ZAFAR IQBAL alias KAKA--Petitioner
versus
ADDITIONAL SESSIONS JUDGE and 3 others--Respondents
W.P. No. 2044 of 2005, decided on 17.2.2005.
(i) Criminal Procedure Code, 1898 (V of 1898)--
----S. 176(2)--Constitution of Pakistan 1973 Art. 199--Disinterment of dead body--Held : Application was made after 11 months of the death of deceased--No FIR was lodged regarding murder--Remedy of private complaint was still open to the respondent if he had strong doubt regarding the unnatural death--Distinterment could be exercised only if applicant succeeded in making a persuasive accusation after explaining the delay and then moved for the same through police. [P. 245] A, B & C
(ii) Criminal Procedure Code, 1898 (V of 1898)--
----S. 176--Disinterment of dead body--Held : Being Muslims, we have to respect a dead body and its disinterment could only be allowed against serious accusation. [P. 245] D
Mr. Imran Humayun, Advocate for Petitioner.
Sardar Muhammad Zubair Dagor, Advocate for Respondent No. 3.
Rana Naeem Sarwar, Addl.A.G. for State.
Date of hearing: 17.2.2005.
Order
Zafar Iqbal alias Kaka has filed this writ petition against an order of the learned Additional Sessions Judge, Pattoki, District Kasur, allowing an application under Section 176(2) Cr.P.C. and issuing a direction for disinterment of the body of the deceased Nazir Ahmed for Forensic testing and location of his cause of death. Prior to this when an application for disinterment was made before the learned Illaqa Magistrate, he held an inquiry and during the inquiry Khalil Ahmed, Respondent No. 3 as well as Sardar Ali recorded their statements. Both of them are brothers of the deceased. Zafar Iqbal is the nephew of the deceased and is opposing disinterment of the body inter alia on the following grounds:--
(a) That this application for disinterment of the body has made almost after 11 months of the death of Nazir Ahmed.
(b) That the purpose was based on mala fide because of a dispute over property.
(c) That the said Khalil respondent has filed a suit two days after filing of the application for disinterment to create a wrongful impression about the death of the deceased.
The medico-legal report is not available because the deceased was never sent for examination purposes. Annexure-A is the death certificate which shows that the deceased remained sick for seven days before his death and the reason for death is given as heart attack.
Khalil Ahmed, Respondent No. 3 in his testimony appeared before the trial Court and stated as follows:
This is supported by the statement of Sardar Ali, another brother of the deceased.
According to the learned counsel for the petitioner, the purpose of disinterment is only to harass the petitioner and nothing else.
The question is whether the allegation in any tangible shape with respect to the death of the deceased through crime has been made. Learned counsel for Respondent No. 3 was questioned whether an FIR was registered to which he has stated that the learned Addl. Sessions Judge refused to give the relief when approached under Section 22-A, Cr.P.C. on the ground that the cause of death the first known. But this did not mean that the learned Addl. Sessions Judge required the disinterment of the body for determining the allegation of the complainant side. The complainant had to assert a motive and had also to assert the ground on which he was basing his suspicion regarding the death of the deceased. And, once he was able to substantiate the same while also informing the Court about the justification of the delay, a case would have been registered.
It is only after registration of the case, the police has to collect evidence for purpose of proceeding further on the ground that a crime was committed. An FIR has also its implication because a falsely lodged FIR is triable under the law. Whereas, all this presently appears to be an academic exercise, which is being done after almost 11 months. Therefore, the impugned order of the learned Additional Sessions Judge shall not be acted upon. However, there is a way open for the respondent side through lodging of a private complaint in case they nourish a strong doubt against the petitioner and feel that Nazir Ahmed died un-naturally. All this is being said because they have agitated this question after a delay of 11 months based on the statements of which they were aware months back while being close relations of the deceased.
The crux of the decision is that this Court is not closing an opportunity of disinterment, but this should only be exercised in case the petitioner succeeds in making a persuasive accusation after explaining the delay and then moved for disinterment of the body through the police who has then to collect evidence. Being Muslims, we have to respect a dead body and only against serious accusations should allow disinterment.
With these directions, the matter stands disposed of.
(J.R.) Writ allowed.
PLJ 2006 Lahore 245 (DB)
Present: Ch. Ijaz Ahmad and Muhammad Khalid Alvi, JJ.
BABU JAVED AHMAD, TEHSIL NAZIM, TEHSIL MUNICIPAL ADMINISTRATION CITY GUJRANWALA and 2 others--Appellants
versus
ABDUL HAFEEZ--Respondent
I.C.A. No. 29 of 2005, heard on 21.3.2005.
(i) Contract Act, 1872 (IX of 1872)--
----S. 2--Law Reforms Ordinance (XII of 1972), S.3--Bid made at an auction--Nature of--Bid made by a person in auction proceedings is in the nature of an offer which does not mature into contract at all till its acceptance--Auctioneer acts as agent of seller and if he has authority to accept bid, concluded contract comes into being the moment bid was accepted either by word of mouth or any other customary method--Where auctioneer was not vested with power to accept bid and such was with another power or authority, contract would only come into being when the same was accepted by the authorized person. [P. 251] A
(ii) Contract Act, 1872 (IX of 1872)--
----S. 2--Law Reforms Ordinance (XII of 1972), S.3--Bid made at subsequent auction during pendency of writ petition--Respondent's Constitutional petition against bid in question, was filed without impleading that person who was the highest bidder--No vested right, however, accrued to highest bidder whose bid was subject to final decision of writ petition coupled with the fact that respondent in his constitutional petition had not made him party therein--Respondent thus, had not approached the Court with clean hands--Constitutional petition was thus, not maintainable in view of conduct of respondent as he did not challenge vires of specified resolution of appellants and also did not implead subsequent highest bidder in his constitutional petition--Judgment of single judge in favour of respondent was set aside and appellants were directed to invite bids for re-auction of collection rights of entry fee in question by mentioning base bid of specified amount as offered by subsequent highest bidder and to complete that process in accordance with law within specified period with intimation to High Court through Deputy Registrar Judicial within stipulated period. [Pp. 251 & 252] B
PLD 1973 SC 144; PLD 1971 SC 376; 1971 SCMR 533; 1970 SCMR 542; 1974 SCMR 337; 1973 SCMR 342; PLD 1960 Lahore 823; PLD 1968 Lahore 1419; AIR 1923 Madras 582 and 1984 SCMR 433, ref.
Mr. Kashif Nawaz Bajawa, Advocate for Appellants.
Mian Irfan Akram, Advocate for Respondents.
Date of hearing : 21.3.2003.
Judgment
Ch. Ijaz Ahmad, J.--The brief facts out of which the present Intra Court Appeal arises are that a public notice was published in daily Khabrain' on 26.10.2003 for collection rights of entry fee namely children games amusement park which is located in Quaid-e-Azam Park, G.T. Road Gujranwala. The auction proceedings were held on 6.11.2003 in terms of aforesaid public notice. The bid of the respondent was highest amounting to
Rs. 60,000/- which was not approved by the appellants and issued second public notice for the said purpose which was published in dailyNawa-e-Waqt' on 9.12.2003. The auction proceedings were held in terms of aforesaid public notice on 20.12.2003. The bid of the respondent was highest amounting to Rs.
320,000/- which was also not approved by the appellants. Consequently, the appellants issued another public notice which was published in daily Khabrain' on 7.1.2004. The auction proceedings were held on 20.1.2004. The bid of the respondent was highest amounting to Rs. 320,000/-. The sub committee of the appellants recommended the case of the respondent but Tehsil Nazim did not place the same before the house in accordance with Rules and Regulations of the appellants. The respondent being aggrieved filed W.P. No. 12342/2004 with the prayer that the Tehsil Nazim be directed to place the case before the house which was disposed of with certain directions to Tehsil Nazim vide order dated 8.9.2004. The appellants issued public notice which was published in dailyPakistan' on 4.11.2004 according to which the auction proceedings would be held on 13.11.2004. The respondent being aggrieved filed W.P. No. 18513/2004 challenging the vires of the auction notice dated 4.11.2004. The constitutional petition was filed on 10.11.2004 which was placed before the learned single
Judge on 12.11.2004. Notice was issued to the appellants for 29.11.2004. The following interim order was also passed:
"In the meanwhile, no auction with regard to awarding of a contract invited vide advertisement published in daily Pakistan in its edition dated 4.11.2004 shall take place."
The auction proceedings in terms of the public notice were held on 13.11.2004. One Muhammad Shafiq alongwith others participated in the auction proceedings held by the appellants on 13.11.2004 whose bid was highest amounting to Rs. 370,000/-. The respondent being aggrieved filed W.P. No. 19450/2004 on 26.11.2004 challenging the vires of the auction proceedings held on 13.11.2004 without impleading Muhammad Shafiq the highest bidder. W.P. No. 18513/2004 was accepted by the learned single Judge vide impugned judgment dated 3.12.2004. W.P. No. 19450/2004 was also disposed of on the same day in the following terms:
"As W.P. No. 18513/2004 has been decided in favour of the petitioner, there is no need to issue any direction in the instant petition which is also disposed of."
The appellants being aggrieved filed this Intra Court Appeal against the impugned judgment of the learned single Judge dated 3.12.2004 passed in W.P. No. 18513/2004.
Learned counsel of the parties have been notified that this appeal will be decided as pacca case. With concurrence of the learned counsel of the parties the appeal is decided as pacca case.
Learned counsel of the appellants submits that appellants placed the case in terms of the direction of this Court dated 8.9.2004 passed in W.P. No. 12342/2004 before the house and the house has rejected the bid of the respondent and consequently appellants issued public notice which was published in daily `Pakistan' on 4.11.2004 for fresh auction which was held on 13.11.2004. One Muhammad Shafiq participated in the auction proceedings whose bid is highest amounting to Rs. 370,000/- which was in the knowledge of the respondent as the date of auction was mentioned in the public notice dated 4.11.2004 for 13.11.2004 which in fact the respondent has challenged in the constitutional petition. Therefore, it was in the knowledge of the respondent that one Muhammad Shafiq participated and has given highest bid but the respondent did not implead said Muhammad Shafiq as respondent in the constitutional petition. Therefore, constitutional petition is liable to be dismissed. He further submits that respondent has not challenged the order of the house in which the bid of the respondent was rejected under the direction of this Court. Therefore, respondent is estopped to file a constitutional petition on the well known principle of estoppel and waiver without challenging the order of the house qua the auction proceedings held on 20.1.2004. He further submits that auction of the appellants is in consonance with the auction rules of the appellants and bid of the respondent was not accepted. Therefore, respondent has not been accrued any vested right.
Learned counsel of the respondent submits that respondent has challenged the public notice dated 4.11.2004 in W.P. No. 18513/2004 on the ground of mala fide and the learned single Judge has noted the manner of exercising power by the appellants and accepted the constitutional petition in accordance with law. He further submits that respondent participated in the auction proceedings on three occasions qua auction proceedings held by the appellants on 6.11.2003, 20.12.2003 and 20.1.2004 and the bid of the respondent was highest which was not accepted by the appellants with mala fide intention. The fourth public notice and auction proceedings held on 13.1.2004 are also without lawful authority in view of the conduct of the appellants. He further submits that appellants issued notice to the respondent to execute an agreement with the appellants vide letter dated 25.1.2005 in spite of the fact that restraining order was secured by the appellants from the Division Bench of this Court on 19.1.2005. He further submits that respondent has presented the cheque to the appellants which has been withdrawn by the appellants on 9.2.2005. Therefore, Intra Court Appeal has become infructuous.
Learned counsel of the appellants in rebuttal submits that counsel of the respondent has presented and relied upon photo-copy of the letter of the appellant dated 9.2.2005 but it does not amount that appellants have withdrawn the said amount. He further submits that this fact was not agitated by the respondent by filing an application before this Court whereas he has not such instructions from the appellants that they have withdrawn the said amount as this fact is pointed out by the counsel of the respondent during arguments. He further submits that respondent has filed Crl. Org. No. 39-W/2005 against the appellant which is pending adjudication.
We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record.
It is better and appropriate to reproduce basic facts in chronological order to resolve the controversy between the parties:--
(i) The appellants invited bids from general public for collection of the fee in question in the first attempt to hold the auction and had remained unsuccessful as noted in the impugned judgment in para-2.
(ii) The second bid was held in response to public notice dated 26.10.2003 on 6.11.2003. The bid of the respondent was highest amounting to Rs. 60,000/- which was not approved by the competent authority.
(iii) Public notice for the said purpose was published in daily `Nawa-e-Waqt' on 9.12.2003 and the auction was held on 20.12.2003. The highest bid amounting to Rs. 320,000/- was of the respondent which was also not approved by the competent authority.
(iv) Thereafter public notice published in daily `Khabrain' on 7.1.2004. The auction was held on 20.1.2004. The bid of the respondent was highest amounting to Rs. 320,000/-. The sub committee of the appellants recommended the same for approval to the Tehsil Nazim who did not place the same before the house in terms of the Rules.
(v) The respondent filed W.P. No. 12342/04 which was disposed of by this Court vide judgment dated 8.9.2004 and directed the Tehsil Nazim to place the matter relating to award of contract to respondent before the house within current month, so that an appropriate decision to taken by the house in the matter.
(vi) The Tehsil Nazim placed the matter in the house on 29.9.2004. The house rejected the same vide Resolution No. 16 dated 29.9.2004.
(vii) The appellants invited bids for the said purpose through public notice published in daily `Pakistan' dated 4.11.2004 and the auction date was fixed as 13.11.2004.
(viii) The respondent being aggrieved filed W.P. No. 18513/04 on 10.11.2004 challenging the vires of public notice dated 4.11.2004 which was accepted by the learned single Judge vide impugned judgment dated 3.12.2004 after securing parawise comments from the appellants wherein the appellants had taken a stand that matter was placed before the house in terms of the direction of this Court passed in judgment dated 8.2.2004 passed in W.P. No. 13432/2004 which was rejected vide Resolution No. 16 dated 29.9.2004. Intimation was also sent to this Court as well as intimation to the respondent as is evident from Annexure-A, B, C & D with the reply of the appellants before the learned Single Judge.
(ix) The learned single Judge passed following interim order in the said writ petition on 12.11.2004:--
"In the meanwhile, no auction with regard to awarding of a contract invited vide advertisement published in daily Pakistan in its edition dated 4.11.2004 shall take place."
(x) During the pendency of the writ petition auction was held by the appellants on 13.11.2004. One Muhammad Shafiq has given highest bid amounting to Rs. 370,000/- which was subject of final decision of the constitutional petition filed by the respondent.
(xi) The respondent filed W.P. No. 19450/2004, without impleading said Muhammad Shafiq, challenging the vires of auction proceedings held by the appellants on 13.11.2004 which was also disposed of by the learned single Judge in view of the judgment dated 3.12.2004 passed in W.P. No. 18513/2004 vide order dated 3.12.2004.
In case aforesaid facts are put in a juxta position then it is crystal clear that auction proceedings were held three times on 6.11.2003, 20-12-2003 and 20.1.2004 respectively wherein the bid of the respondent was highest amounting to Rs. 60,000/-, Rs. 320,000/- and Rs. 320,000/- respectively. The Tehsil Nazim did not place the case before the house and respondent filed W.P. No. 12342/2004 which was disposed of by this Court vide judgment dated 8.9.2004. In obedience of the direction of this Court Tehsil Nazim placed the case before the house and the house rejected the same vide Resolution No. 16 dated 29.9.2004. This resolution was not challenged by respondent before any higher forum under the provisions of Punjab Local Government Ordinance, 2001 and Rules framed thereunder or before this Court. Therefore, the respondent is estopped to challenge the public notice dated 4.11.2004 in the constitutional petition on the well known principle of approbate and reprobate as the law laid down by the Honourable Supreme Court in the following judgment:--
Dr. Habib Ullah's case (PLD 1973 S.C. 144)
Ch. Ghulam Rasool's case (PLD 1971 S.C. 376).
It is also admitted fact that bid of the respondent was not approved by the appellants. Therefore, auction of the appellants is in consonance with the law laid down by the superior Courts in the following judgments:--
Munshi Muhammad's case (1971 SCMR 533);
Meraj Din's case (1970 SCMR 542);
Babu Pervaiz Qureshi's case (1974 SCMR 337);
Rehmat Ali's case (1973 SCMR 342);
Muhammad Din's case (PLD 1960 Lahore 823).
The ratio of the aforesaid judgments is that it is well settled law that a bid made at an auction is in the nature of an offer which does not mature into contract at all till its acceptance. The auctioneer acts as an agent of the seller and if he has authority to accept the bid, concluded contract comes into being the moment bid is accepted either by the word of mouth or any other customary method. If however, auctioneer is not vested with the power to accept the bid which is with another person or authority, the contract only comes into being when the bid is accepted by that authorized person. In case of Dr. Azeem Shah versus Municipal Committee Multan (PLD 1968 Lahore 1419), a D.B. of this Court was pleased to hold that as the acceptance of the offer made by contractor, was not communicated to him, no concluded contract came into being. In case of Muthu Pillali vs. Secretary of State (AIR 1923 Madras 582), the relevant observation is as follows:--
"That till such time the sale at auction is not confirmed by the authority, competent to do so, there cannot be said to be a concluded contract between the parties."
It is pertinent to mention here that the aforesaid facts were not highlighted by the counsel of the appellant before the learned single Judge. The Honourable Supreme Court has laid down parameters qua maintainability of constitutional petition in Ali Mir's case (1984 SCMR 433) wherein it is the duty and obligation of the writ petitioner to point out that action of the respondent is in derogation of its Rules and Regulations which the respondent's counsel has failed to point out before the learned single Judge as well as before us. Therefore, constitutional petition is not maintainable. The photo-copy of receipt produced by the counsel of the respondent has also no value in the eyes of law in the given circumstances which does not reveal that the appellant has withdrawn the amount deposited by the respondent.
In view of what has been discussed above, the judgment of the learned single Judge is not in accordance with the dictum laid down by the Honourable Supreme Court in the aforesaid judgments. Therefore, Intra Court Appeal is accepted. The appellants are directed to invite bids for re-auction of the collection rights of entry fee in question by mentioning the base bid amount amounting to Rs. 370,000/- and shall complete the process in accordance with law within one month in terms of the Rules and Regulations of the appellants. They are further directed to submit report to Deputy Registrar (Judl) of this Court within the stipulated period.
(A.A.) Appeal accepted.
PLJ 2006 Lahore 252 (DB)
Present: Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ.
Mst. MUNIRA RAFIQUE ANWAR (deceased) through L.Rs. etc.--Appellants
versus
KHALID JAVED ANWAR etc.--Respondents
R.F.As. Nos. 296 & 373 of 1999, heard on 25.5.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XIV, R.1--Framing of issues--Objection of--Held: Object of framing of issues in that the parties should be appraised of the points for which they are expected to lead evidence and to avoid any prejudice being caused to either side, due to absence of material issues. [P. 259] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XIV, R. 3--Material for issues--Held : All the material controversies in pleadings, applications, affidavits and statements were to be covered in the form of issues to enable parties to lead requisite evidence. [P. 259] B
(iii) Civil Procedure Code, 1908 (V of 1908)--
----O. XIV, R.5--Amendment of issues--Held : Rule 5 empowers the Court to amend issues, frame additional issues necessary for determining real controversy, at any time before passing of a decree. [P. 259] C
(iv) Civil Procedure Code, 1908 (V of 1908)--
----Preamble--Held: Civil Procedure Code consists of two parts, Sections & Orders Part I consists of sections which is substantive law whereas second part consists of orders, which is procedural in nature. [P. 259] D
(v) Civil Procedure Code, 1908 (V of 1908)--
----O. XIV, R.1--Framing of issues--Held: Aim of framing issues is to ascertain the real dispute between the parties by narrowing down the sphere of controversy. [P. 260] F
(vi) Civil Procedure Code, 1908 (V of 1908)--
----O. XIV, R.1--Framing of issues--Error in--Held: Error of framing wrong issue and recording a finding on it is considered necessarily fatal to the decision of Court. [P. 260] G
(vii) Civil Procedure Code, 1908 (V of 1908)--
----O. XIV, R. 5, S. 107--Recasting of issues and power of appellate Court--Held: Power to recast issues which is required to be exercised for determining the matter in controversy between the parties is equally available to the appellate Court u/s 107. [P. 260] H
(viii) Duty of Court--
----Civil Procedure Code, (V of 1908), O. XIV, R. 1--Framing of issues--Held: It is the duty and obligation of the Court to frame issues keeping the divergent pleas of the parties mentioned in contents of the plaint and written statement--It is however not the duty of Court to frame an issue with regard to the controversy arising out of the written statement qua the controversy between the defendants. [P. 260] E
(ix) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 77--Execution of gift deed--Proof of--Held: Appellants/Defendants were beneficiaries of gift in question so it was their duty and obligation to prove its execution--Whereas they had badly failed--Stamp papers were purchased on different dates and executed on the same date as stated by DW3, whereas the same was not in consonance with the stand taken in their written statement--Contents of document revealed that appellants were majors but they were shown to be minors in their own written statement--Finding of trial Court was upheld by High Court. [Pp. 262 & 263] I, J, K & L
NLR 1992 CLJ 78, ref.
Sh. Zia Ullah, Advocate for Appellants.
Mr. Muhammad Ishtiaq Javed, Mr. Muhammad Farooq Qureshi Chishti & Mr. Rao Saeed Ahmed, Advocates for Respondents.
Date of hearing : 25.5.2005.
Judgment
Ch. Ijaz Ahmad, J.--We intend to decide the following appeals by one consolidated judgment arising out of the same impugned judgment of the Trial Court dated 1.6.1999:--
(i) R.F.A. No. 296/99
(ii) R.F.A. No. 373/99
It is only signed by Khan Aziz-ur-Rehman, Advocate. Waqas Shafiq Anwar and Jawad Shafiq Anwar/Defendants Nos. 3 & 4 have also filed written statement on 5.3.1998, which is at page 32 of the Paper Book. Mst. Roshana Shafiq and others also filed written statement, which is at page 37 of the Paper Book on 23.11.1998. Mst. Munira Rafique Anwar also filed another written statement on 7.12.1998 which is at page 41 of the Paper Book which is not in consonance with the earlier written statement filed by Mst. Munira Rafique Anwar. Late Muhammad Shafique Anwar/Defendant No. 1 also filed another written statement on 2.10.1996, which is at page 43 of the Paper Book. Similarly, Mst. Munira Rafique Anwar/Defendant No. 2 also filed another written statement on 2.10.1996, which is at page 48 of the Paper Book. Waqas Shafiq Anwar and Jawad Shafiq Anwar/Defendants Nos. 3 & 4 also filed another written statement on 2.10.1996, which is at page 53. Muhammad Shafique Anwar/Defendant No. 1 also filed written statement on 1.3.1993, which is at page 58. Mst. Munira Rafique Anwar filed another written statement, which is at page 62 on 1.3.1993, which is also signed by Mst. Munira Rafique Anwar. Mst. Munira Rafique Anwar also filed an application before the Trial Court on 13.6.1998 that his counsel has not acted upon her directions; therefore, she has cancelled power of attorney in favour of her counsel Kh. Aziz-ur-Rehman, Advocate and also has given power of attorney to Miss Zareen Siddiqi Advocate, which is at page 116 of the file. Out of the pleadings of the parties the Trial Court framed the following issues:--
Whether the plaintiff has no cause of action? OPD1-2.
Whether the plaint is liable to be rejected under O. VII, Rule 11 CPC? OPD1-2.
Whether valuation of the suit for purpose of Court fee is not correct? If so, what is the correct valuation? O.P. Parties.
Whether the property in dispute is heritable estate left by late Mian Muhammad Rafique Anwar? If so, what is the share of the plaintiff out of it? OPP.
Whether the property in dispute was transferred through oral gift by late Mian Muhammad Rafique Anwar to his grand son Muhammad Waqas Shafiq Anwar and Muhammad Jawad Shafiq Anwar (Defendants Nos. 3 & 4) on 16.7.1992 and delivered its possession to the donees who accepted the same? OPD 1-2.
Whether Mst. Munira Rafique Anwar also orally gifted away her own property 1/2 of plot No. 11-A/1, Satellite Town, Gujranwala on 16.7.1992 to Muhammad Waqas Shafiq Anwar and Muhammad Jawad Shafiq Anwar Defendants Nos. 3 & 4 and delivered its possession to the donees? OPD 2.
Whether late Mian Muhammad Rafique Anwar and Defendant No. 2 made an application registered at Serial No. 6060 dated 27.7.1992 to the Housing & Physical Planning Department, Gujranwala for substituting the names of the above said donees as owners in their record? If so, with what effect? OPD.
Whether Defendant No. 2 submitted a reminder application dated 20.10.92 to the Housing & Physical Planning Department, Gujranwala for entering the names of Muhammad Waqas Shafiq Anwar and Jawad Shafiq Anwar as owners of 11-A-1, Satellite Town, Gujranwala, in their record? If so, with what effect? OPD-2.
Relief.
The Trial Court, as mentioned above decreed the suit vide judgment and decree dated 1.6.1999, hence, the aforesaid appeals.
Sh. Zia Ullah Advocate in R.F.A. No. 296/99 filed on behalf of late Mst. Munira Rafique Anwar submits that judgment of the Trial Court is contradictory in nature as the Trial Court did not accept the gift executed by late Mian Muhammad Rafique Anwar on the basis of the evidence of the parties but the gift executed by late Mian Muhammad Rafique Anwar in favour of Waqas Shafiq Anwar and Jawad Shafiq Anwar was accepted on the basis of the same evidence produced by the parties with regard to both the gifts. He further submits that Mst. Munira Rafique Anwar has been living with the respondents and she was not in the knowledge of the litigation inquestion in true sense and thereafter when she has come to know about the real controversy, she has filed written statement, controverting the stand taken by her in her earlier written statement and has also engaged another counsel. The trial Court erred in law not to consider the stand taken by her in the subsequent written statement in its true perspective. He further submits that there is no controversy in the contents of the plaint qua 1/2 portion of the property inquestion, which is owned by the late Mst. Munira Rafique Anwar; therefore, Trial Court erred in law to decree the suit in favour of the defendants in the suit on the basis of the written statement filed by her in the suit. The Trial Court cannot grant relief to the defendants in the suit over and above the claim of the plaintiff in the plaint. He further urges that in view of the relief claimed by Respondent No. 1/plaintiff in his plaint, the trial Court had no jurisdiction or at least justification, both in fact and law to decide the interse controversy of the defendants cropped up during the litigation.
The learned counsel of the respondents in R.F.A. No. 296/99 and appellant in R.F.A. No. 373/99 submits that the Trial Court has framed the issues in view of the pleadings of the parties and Issues No. 6 was framed. Parties have led their evidence; therefore, parties were conscious about the controversy. The trial Court was justified to decree the suit to the extent of gift executed by late Mian Muhammad Rafique Anwar in favour of Waqas Shafiq Anwar and Jawad Shafiq Anwar. He further submits that the trial Court is not justified to decree the suit in favour of Respondent No. 1/plaintiff in view of the gift executed by late Mian Muhammad Rafique Anwar in favour of the appellants. The trial Court erred in law to decree the suit without adverting to the evidence on record as the application was filed by late Mian Muhammad Rafique Anwar and Mst. Munira Rafique Anwar in the Housing & Physical Planning Department, Gujranwala along with their affidavits, which was not finalized in view of the influence of Respondent No. 1/plaintiff. He further submits that findings of the trial Court with regard to the gift, which was executed in favour of the appellants Waqas Shafiq Anwar and Jawad Shafiq Anwar, in Appeal No. 373/99, which is in accordance with the injunctions of Islam as all the ingredients are fulfilled but the findings of the trial Court is contrary to the injunctions of Islam and the evidence on record. Respondent No. 1 has long standing litigation with his late father but this fact was not considered by the trial Court in its true perspective. The learned counsel of Respondent No. 1 submits that the impugned judgment and decree is valid.
We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record.
Mst. Munira Rafique Anwar has filed four written statements, of which one written statement is at pages 26 to 31 of the Paper Book, filed on 5.3.1998. It is pertinent to mention here that this written statement was not signed by Mst. Munira Rafique Anwar/Defendant No. 2, it is only signed by her counsel Kh. Aziz-Ur-Rehman, Advocate. Mst. Munira Rafique Anwar also filed another written statement on 7.12.1998 which is at pages 41 to 42 of the Paper Book, signed by her Advocate as well as by Mst. Munira Rafique Anwar, which is not in consonance with the contents of the earlier written statement. In this she has taken a stand that property inquestion to the extent of 1/2 share is owned by her. Mst. Munira Rafique Anwar/Defendant No. 2 also filed another written statement on 2.10.1996, which is at pages 48 to 52 of the Paper Book, which is not signed by Mst. Munira Rafique Anwar. She filed another written statement, which is at pages 62 to 66, which is signed by the Advocate as well as Mst. Munira Rafique Anwar, on 1.3.1993. Mst. Munira Rafique Anwar filed an application before the trial Court on 13.6.1998, which is at page 116 of the paper book that her counsel Kh. Aziz-Ur-Rehman, Advocate is not acting in accordance with her instructions, therefore, she has cancelled power of attorney in favour of her counsel Kh. Aziz-ur-Rehman, Advocate and also has appointed her counsel Miss Zareen Siddiqi Advocate, Gujranwala. It is better and appropriate to reproduce relevant provisions of C.P.C. to resolve the controversy between the parties:
0.6. R.2 Pleadings to state material facts and not evidence.--Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleadings relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures.
O. 14 R. 1 Framing of issues.--(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
(4) Issues are of two kinds: (a) issues of fact, (b) issues of law.
(5) ..........
(6) ..........
0.14 R.2 Issues of law and of fact.--Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined.
O. 14, R. 3. Materials, from which issues may be framed.--The Court may frame the issue from all or any of the following materials:--
(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties;
(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;
(c) the contents of documents produced by either party.
Order 6 Rule 2 contemplates that every pleadings shall contain, and contain only, a statement in a concise form of the material facts on which the party pleadings relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures. Order 14 Rule 1(1)(2) & (3) prescribes that the issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (under line is our). Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. (under line is our for the purpose of emphasize) and each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
The object of framing issues is that the parties should be appraised of the points for which they are expected to lead evidence and to avoid any prejudice being caused to either side due to absence of material issues. Under Order 14 Rule 3 of C.P.C., all the material controversies in pleadings, applications and affidavits, statements, are to be covered in the form of issues to enable the parties to lead requisite evidence. Meaning thereby every material proposition affirmed by one party and denied by the other has to be a subject of distinct issue in terms of Rule 1 of Order XIV, C.P.C. Rule 5 of Order XIV, empowers the Court of amend issues, frame additional issues, necessary for determining the real controversy at any time before the passing of a decree.
It is pertinent to mention here that issues are framed with regard to material facts as alleged in the plaint and denied in the written statement and from any other material along with the pleas of the parties. Issues are necessary matter, directly and substantially in issue between litigants. Civil Procedure Code is itself a Code providing mechanism to decide the controversy between the parties within the parameters prescribed under C.P.C. The Civil Procedure Code consists of two parts; Sections and Orders. Part I consists of Sections, which is substantive law whereas second part consists of orders, which is procedural in nature. It is duty and obligation of the Court to frame issues keeping in view the divergent pleas of the parties mentioned in the contents of the plaint and written statement. It is not the duty of the Court to frame an issue with regard to the controversy arising out of the written statement qua the controversy between the defendants in the suit; therefore, trial Court erred in law to frame Issue No. 6, which is purely interse between the defendants, which is beyond the scope of the plaint. It is well accepted principle of law that the issues arise from the material proposition of fact or law affirmed by one party and denied by the other. The aim of framing issues is to ascertain the real dispute between the parties by narrowing down the sphere of controversy. As there was no allegation with regard to the property inquestion owned by Mst. Munira Rafique Anwar in the contents of the plaint; therefore, it was unnecessary for the trial Court to frame Issue No. 6 and thereby record its finding in that respect. The error of framing of wrong issue and recording a finding on it is considered necessarily fatal in the given circumstances of the case to the impugned judgment and decree. Meaning thereby the issue inquestion i.e. Issue No. 6 being foreign to pleadings of the parties, was erroneous. As the Issue No. 6 held erroneous. The finding on such issue is equally erroneous. Power to recast issues stands conferred by Rule 5 of Order XIV C.P.C., which is required to be exercised for determining the matters in controversy between the parties and Section 107 C.P.C. empowers the Appellate Court to perform the same duty. In arriving to this conclusion, we are fortified by the law laid down in Noor Din etc. vs. Muhammad Hussain (NLR 1992 CLJ 78). Issue No. 6 does not arise out of the pleadings of the parties because it only arises between the defendants in the suit. Plaint and written statement are undoubtedly pleadings, therefore, issues are to be framed on the basis of the allegations made by the parties in their pleadings to the extent divergent pleas between the plaintiffs and defendants but the trial Court erred in law to frame Issue No. 6 with regard to divergent pleas interse defendants, which has no nexus with the contents of the plaint and relief claimed by the plaintiff in his suit. What are material proposition of law and facts, must be determined not merely from the allegations in the plaint but also from the defence put forward in the written statement, therefore, trial Court, as mentioned above, erred in law to frame Issue No. 6, which is deleted by us in view of the aforesaid discussion. Consequently findings on Issue No. 6 is also irrelevant to decide the present controversy arising in the suit filed by the plaintiff against the appellants.
In view of what has been discussed above the impugned judgment and decree to the extent of Mst. Munira Rafique Anwar is not sustainable in the eye of law; therefore, appeal is partly accepted to the extent of Mst. Munira Rafique Anwar. It is pertinent to mention here that Mst. Munira Rafique Anwar has filed four written statements before the trial Court. We do not dilate upon this so that the case of either party may not be prejudiced. The parties may take benefit of the written statements before the competent authority/competent Court, of-course, the competent authority/competent Court shall decide the same in accordance with law.
It is better and appropriate to reproduce basic facts in chronological order to resolve the controversy between the parties with regard to Issue No. 5 out of which R.F.A. No. 373/99 arises:--
(i) According to the version of Defendants Nos. 3 & 4, late Mian Muhammad Rafique Anwar has celebrated the birthday party of his sons Muhammad Shafique Anwar on 16.8.1992 wherein he has executed oral gift with regard to his share in the property inquestion in favour of Defendants Nos. 3 & 4 namely Waqas Shafiq Anwar and Jawad Shafiq Anwar;
(ii) late Mian Muhammad Rafique Anwar died on 4.10.1992.
(iii) Respondent No. 1 has filed suit for partition on 1.12.1992;
Defendants Nos. 3 & 4 have produced following witnesses and documents to discharge their onus with regard to the gift inquestion in their favour by late Mian Muhammad Rafique Anwar. D.W. 1 Walayat Ali Accounts Clerk Office of the Housing & Physical Planning Department, Gujranwala, received application from late Mian Muhammad Rafique Anwar and Mst. Munira Rafique Anwar on 27.7.1992. Muhammad Dawood D.W. 2 (attended the birthday ceremony). D.W. 3 Shah Din, who identified the signatures on the application and affidavits. D.W.3 Muhammad Waqas Anwar, D.W.5 Muhammad Aslam Cheif Security Officer of Anwar Group of Industries, who stated that property inquestion is gifted by donor in favour of Defendants Nos. 3 & 4, Ex. D. 1 application submitted by late Mian Muhammad Rafique Anwar and Mst. Munira Rafique Anwar in the office of the Deputy Director Office of Housing & Physical Planning Department on 20.10.1992, Ex. D. 2 application submitted by Mst. Munira Rafique Anar on 20.10.1992 to the Deputy Director Office of Housing & Physical Planning Department, Gujranwala, Ex. D.3. affidavit of late Mian Muhammad Rafique Anwar, Ex. D. 4 affidavit of Mst. Munira Rafique Anwar, Ex. D. 5 affidavit of late Mian Muhammad Rafique Anwar. The star witness of the Defendants Nos. 3 & 4 is Muhammad Dawood Taseer D.W.2, who is stated to be family friend of late Mian Muhammad Rafique Anwar. He does not state a single sentence in his statement that whether the donees are present at the time of declaration of gift by late Mian Muhammad Rafique Anwar in favour of them and possession of the property inquestion was delivered to them coupled with the fact that the stand of the Defendants No. 3 & 4 in their written statement is that both the donees were minors on 16.7.1992 whereas documents Ex. D. 1 and Ex. D. 2 show otherwise. Coupled with the fact that Dr. Muzafar Abbas and certain others notables of the city inquestion were present in the birthday ceremony, who are not produced to corroborate the statement of Muhammad Dawood Taseer D.W.2 whereas respondent has controverted the celebration of the birthday whereas Muhammad Waqas Shafiq Anwar admitted that it was not regular function. Muhammad Aslam D.W. 5 was not present in the birthday ceremony celebrated by late Mian Muhammad Rafique Anwar on 16.7.1992; therefore, trial Court was justified to ignore the evidence of Muhammad Aslam D.W. 5. It is pertinent to mention here that affidavits consists of Ex. D.3 and Ex. D. 5 are only affidavits to the extent to be presented to the Deputy Director Office of Housing & Physical Planning Department, Gujranwala. The contents of the affidavits further show that late Mian Muhammad Rafique Anwar and Mst. Munira Rafique Anwar do not own any plot in any of the Housing Scheme coupled with the fact that aforesaid affidavits do not bear any date, which are not attested by any Oath Commissioner and the name of the scribers are also missing. The defendants have produced Shah Din to prove the contents of the affidavits. His evidence was ignored/not believed by the trial Court with cogent reasons. The trial Court has given findings that stamp papers were purchased on 28.6.1992 and 15.6.1992. The trial Court after reappraisal of the evidence has decided Issue No. 5 in favour of Respondent No. 5 in the following terms:--
"Under the circumstances, it is proved to the hilt that late Mian Muhammad Rafique Anwar never made any oral gift of the disputed property in favour of Defendants Nos. 3 & 4 on 16.7.1992. It is better and appropriate to reproduce basic facts to resolve the controversy between the parties with regard to issue No. 5:--
The alleged gift was executed orally on 16.7.1992 in the birthday ceremony arranged by late Mian Muhammad Rafique Anwar of his son Muhammad Shafique Anwar;
In the said ceremony late Mian Muhammad Rafique Anwar orally announced the gift of his share with regard to the property inquestion in favour of Defendants Nos. 3 & 4 appellants;
Late Mian Muhammad Rafique Anwar died on 4.10.1992 and Respondent No. 1 has filed the suit on 1.12.1992.
In case whole of the evidence of Defendants Nos. 3 & 4/appellants be put in a juxtaposition then Defendants Nos. 3 & 4 failed to prove that gift was executed in their favour. The stamp papers were purchased on different dates and executed on the same date in terms of the evidence of D.W. 3 whereas the same is not in consonance with the stand taken by the Defendants Nos. 3 & 4 in their written statement coupled with the fact that affidavits do not contain the name of the scribe and also did not contain date of execution; therefore, affidavits of late Mian Muhammad Rafique Anwar were rightly ignored or not believed by the trial Court with cogent reasons. Similarly, applications submitted by the donor in the office of the Deputy Director Office of Housing & Physical Planning Department, were also rejected by the trial Court with cogent reasons in view of the circumstances that the donors have only intimated to the Housing & Physical Planning Department that they did not have any plot in their names. The appellants/defendants No. 3 & 4 are the beneficiaries of the gift inquestion; therefore, it is duty and obligation of the beneficiaries to prove the execution of the gift which they badly failed in the present case. The statement of D.W. 3 Shah Din is stated to be family friend, who also is not in a position to prove the same. Similarly D.W. 5 Muhammad Aslam is not a witness of the execution of the gift inquestion as he was not present on the birthday celebration of Muhammad Shafique Anwar arranged by his father late Mian Muhammad Rafique Anwar. The contents of the documents reveal that Defendants Nos. 3 & 4/appellants are major whereas the stand taken by Defendants Nos. 3 & 4/appellants in their written statement that they are minors; therefore, trial Court was justified after nothing the discrepancies in the evidence produced by the appellants that appellants/Defendants Nos. 3 & 4 failed to prove the execution of the gift in their favour by late Mian Muhammad Rafique Anwar. We have reappraisal the evidence on record and upheld the findings of the trial Court on Issue No. 5. As mentioned above, Issue No. 5 is the basic issue with regard to this appeal, which has been decided against the appellants/Defendants Nos. 3 & 4 and consequently the findings on other issues are also upheld to the extent of the gift executed by late Mian Muhammad Rafique Anwar. We do not find any infirmity or illegality with regard to the findings on Issue No. 5, which is upheld as the learned counsel of the appellants in R.F.A. No. 373/99 failed to point out any infirmity or illegality in the impugned judgment and decree.
In view of what has been discussed above, this appeal is dismissed with no order s to costs.
(J.R.) Appeal dismissed.
PLJ 2006 Lahore 263
Present: Muhammad Akhtar Shabbir, J.
FEROZE DIN (deceased) through L.R. & others--Appellants
versus
HUSSAIN & others--Respondents
R.S.A. No. 14 of 2002, decided on 7.6.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XXIII, R. 1(2)(b)--Withdrawal of suit--Held: Several plaintiffs, suit can be withdrawn without consent of all the plaintiffs but any of them can withdraw his suit in so far as his own interest is concerned. [P. 267] A
(ii) Doctrine of Sinker--
----Superior right of pre-emption--Plaintiff who having superior right of pre-emption joins another plaintiff/pre-emptor with him who has no superior rights of pre-emption or is a stranger, then in such circumstances, doctrine of sinker shall be attracted to the case and suit would fail. [P. 268] C
(iii) Principle of Partial Pre-emption--
----Partial pre-emption simply prevents a pre-emptor from making a pick and choose in the sale and requires that normally bargain has to be taken as a whole by pre-emptor who could not elect to get only a part of property sold--Where no part of land had been left out and entire land sold, forms subject matter of suit, then no case of partial pre-emption was made out in the circumstances. [P. 267] B
(iv) Pre-emption Act, 1913 (I of 1913)--
----S. 17--Punjab Pre-emption Act 1991, S. 8--Entitlement--Joint right of pre-emption--Held: Two plaintiffs exercised their right of pre-emption but out of two, one withdraw the suit--Right of pre-emption of the other plaintiff could not be defeated on such ground as at the time of withdrawal defendant or co-plaintiff did not object to such withdrawal, nor the matter was agitated in earlier litigation. [P. 268] D
AIR 1943 Kal. 427; PLD 2004; Lah. 43; PLD 1972 SC 59; 1988 CLC 548 & 1980 CLC 1274, ref.
Mr. Zaheer Zulfiqar, Advocate for Appellants.
Ch. Muhammad Nasrullah Warriach, Advocate for Respondent No. 1.
Date of hearing : 7.6.2005.
Judgment
The brief resume of the case is that a suit for pre-emption had been instituted by Bahawal son of Walidar and Hussain son of Sher Muhammad on 19.2.1975, against the defendants Muhammad Mazhar and other claiming their superior rights of pre-emption qua the defendants against the sale of suit land transferred through Mutation No. 14 dated 6.6.1974, for a consideration of Rs. 45,000/-, of Mst. Fatima Bibi, Mst. Bashiran Bibi, the vendors. The plaintiff asserted in their plaint that the defendants were stranger in the village and they were co-owners in the estate.
ISSUES:
Whether the plaintiffs have not thumb marked the plaint and whether they had not verified it, if so, its effect? OPD.
Whether the plaintiffs are estopped from filing the suit? OPD
Whether this suit has been improperly valued for the purposes of Court fee and jurisdiction if so what is the proper valuation and what is its effect? OPD
What is the effect of non-filing of copy of the disputed mutation with the plaint? OPD
Whether the plaintiffs have superior rights of pre-emption against the defendants-vendee? OPP
Whether Rs. 45,000/- were fixed in good faith or paid by the defendants to the vendor? OPD
What was the market value of the suit land at the time of its sale in favour of the defendants? OPP
Relief.
On 14.9.1976, the following additional issues were framed as 7-A.
Issue No. 7-A
Whether the plaintiffs failed to make up deficiency in Court fee deposit time that have been granted by the Court? If so, to what effect? OPD.
Thereafter the following two other additional issues were framed on 13.3.1978.
Issue No. 7-B
Whether this Court lacks jurisdiction? OPD
Issue No. 7-C
Whether the suit is not maintainable in law? OPD
On 3.10.1984, Issue No. 7-C was re-casted as under:--
Issue No. 7-C
Whether the suit is not maintainable as the transaction in question was truck with the approval of District Collector? OPD
On 19.2.1983, Bahawal, plaintiff had withdrawn his claim of pre-emption and the suit was dismissed to his extent as withdrawn. The other plaintiff-Hussain, contested the superior right of pre-emption qua the defendants claiming the whole suit land. After recording, appreciating the evidence of the parties, the learned trial Court vide its judgment and decree dated 7.3.1985, decreed the suit.
The said judgment and decree had been assailed by the appellants and the predecessor-in-interest of Respondents No. 2-a to 2-d, through an appeal in the Court of learned District Judge, Sheikhupura, which was accepted by the appellate Court vide judgment and decree dated 24.3.1986, whereby the judgment and decree of the learned trial Court was set aside and suit of the plaintiff was dismissed.
On 22.12.1990, the predecessor-in-interest of Respondents No. 2-A to 2-D, sold out of the disputed land, his share measuring 120 kanals through his general attorney, Muhammad Sadiq in favour of appellants No. 7 to 12, qua bona fide purchaser without notice.
Respondent No. 1/plaintiff-Hussain, filed RSA No. 153/86, in the Lahore High Court, Lahore, against the judgment and decree dated 24.3.1986, passed by the learned appellate Court. The RSA No. 153/1986, was accepted on 20.2.2001, and the case was remanded to the learned Additional District Judge, for decision afresh. During the hearing of the appeal, the learned appellate Court (ADJ), Sheikhupura, impleaded Respondents No. 7 to 8-a to 8-D, as party in the appeal. The learned First Appellate Court vide judgment and decree dated 16.2.2002, dismissed the appeal.
The learned counsel for the appellants contended that the co-plaintiff/pre-emptor has withdrawn the suit and such withdrawal of the suit would result into partial pre-emption and the principle of sinker is attracted to the case of the plaintiff/Respondent No. 1 and his suit is liable to be dismissed on this sole ground. He has placed reliance on Nandi etc. vs. Shyama Sundar Nandi (A.I.R. 1943 Kalcutta 427) and Muhammad Zafarullah Khan and 3 others vs. Hasan Muhammad and another (PLD 2004 Lahore 43).
On the other hand, the learned counsel for contesting respondents vehemently opposed the arguments advanced by the learned counsel for the appellant and supported the judgment and decree passed by the learned trial Court. He has placed reliance on Mehr Allah Ditta and another vs. Muhammad Ali and another (PLD 1972 SC 59) and Malik Hadayat Ullah and 2 others vs. Murad Ali Khan (PLD 1972 Lahore 69).
I have heard the learned counsel for the parties and perused the record. There is cavil to the fact that the co-plaintiff, Bahawal has withdrawn suit on 19.2.1983, before the passing of the judgment and decree of the learned trial Court dated 7.3.1985.
Order XXIII, Rule 1 CPC has provided that:
"(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
Sub-clause (b) of Sub-Rule (2) of Rule 1, contemplated that a plaintiff who intends to institute a fresh suit for the subject-matter of that suit or part of a claim on the same subject-matter, he advance sufficient grounds and if permitted to withdraw such suit with permission of the Court and he is at liberty to institute a fresh suit in respect of the subject-matter of such suit and if plaintiff withdraws from a suit, or abandons part of a claim without the permission referred to in Sub Rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim but the Court is not authorized to permit one of the several plaintiffs to withdraw without consent of the others plaintiffs.
In the instant suit there was only two plaintiffs, Bhawal and Hussain, Bhawal had withdrawn his suit, the other plaintiff has not objected to his withdrawal. Neither he has prayed for to the Court for permission to institute a fresh suit. Where there are several plaintiffs the suit can be withdrawn without consent of all the plaintiffs but any of them may withdraw his suit in so far as his own interest is concerned.
As to the objection of the learned counsel for the appellants that the withdrawal of the suit by a co-plaintiff would attract to the principle of partial pre-emption, the partial pre-emption simply prevents a pre-emptor from making a pick and choose in the sale and requires that normally bargain has to be taken as a whole by pre-emptor who could not elect to get only a part of property sold. Where no part of land had been left out and entire land sold forms subject-matter of suit, then no case of partial pre-emption is made out in the circumstances. Reference can be made to Ghulam Haider and 9 others vs. Ghulam Muhammad and 18 others (1988 CLC 548) and Murad Bakhsh and another vs. Abdul Ghafoor and 5 others (1980 CLC 1274), in this case six plaintiffs had filed a suit for possession through "pre-emption" and prayer of five of plaintiffs was that they be given possession of 3/4 share in disputed land and sixth plaintiff be given possession of remaining 1/4th share. Name of sixth plaintiffs turning out to be a stranger, later removed from list of plaintiffs. The defect in suit having thus been remedied with omission of stranger plaintiff's name and other plaintiffs cannot be made to suffer on that account. The remaining plaintiffs were entitled to possession of entire land in dispute. In the present case the entire sold land was the subject-matter of the suit. No portion of the land was left by the pre-emptor and the remaining plaintiff Hussain has proved his cannot be made to suffer on that account. The remaining plaintiffs were entitled to possession of entire land in dispute. In the present case the entire sold land was the subject-matter of the suit. No portion of the land was left by the pre-emptor and the remaining plaintiff Hussain has proved his superior rights of pre-emption qua the vendee, defendants/appellants and he is entitled for the decree of the whole suit land. This argument is further strengthened by the dictum laid down by the Honourable Supreme Court in case of Mehr Allah Ditta and another vs. Muhammad Ali and another (PLD 1972 SC 59). In this suit for pre-emption, the plaintiff associated a co-owner with himself and co-owner having no right of pre-emption, the question for consideration raised whether by associating him with himself a stranger, the pre-emptor in the circumstances lost his right of pre-emption of the property in dispute. It was observed by the Honourable Judges of the Apex Court that the right of a pre-emptor-plaintiff is not lost if in a suit to enforce his right he joins with him a stranger. If such plaintiff, however, insisted in getting the relief jointly, then it was obvious that no relief could be granted at all to them because of associating a stranger. A plaintiff who having superior right of pre-emption joins another plaintiff-pre-emptor with him who having superior rights of pre-emption has no superior rights or is a stranger, then in such circumstances the doctrine of sinker shall be attracted to the case and suit would fail.
Herein the instant suit the co-plaintiff, whether he had superior right of pre-emption qua the defendant-vendee or was a stranger, he has withdrawn himself from the suit and if there was any defect that has been cured. The learned counsel for the appellants could not establish on the record that the plaintiff/decree holder had claimed part/portion of the suit land by establishing a superior right.
Section 17 of the Punjab Pre-emption Act, 1913, read with Section 8 of the Punjab Pre-emption Act 1991, provided that where a right of pre-emption vests in any class or group of persons, the right may be exercised by all the members of such class or group jointly, and if not exercised by them all jointly, by any two or more of them jointly, and if no exercised by any two or more of them jointly, by them severally. In the instant case two plaintiffs/pre-emptors have exercised their right of pre-emption but out of two one has withdrawn the suit and only one plaintiff having superior rights of pre-emption remained in the field. His right could not be defeated on the ground that a co-plaintiff has withdrawn the suit while at the time of withdrawn of the suit, the defendant or co-plaintiff did not object to his withdrawal neither the matter was agitated in earlier litigation through appeal or in the revision in the High Court when the case was remanded to the learned appellate Court for decision afresh.
As to the case law Baidyanath Nandi vs. Shyama Sundar (AIR (30) 1943 Calcutta 427), referred by the learned counsel for the appellants, the facts of the case are not attracted to the present case. In this case Order XXIII Rule 1 CPC was discussed by the learned Division Bench of the High Court Calcutta wherein it has been observed that no permission for fresh suit was asked for by one of the several plaintiffs applying to withdraw the suit, the provisions of Sub Rule (4) of Rule 1 Order XXIII CPC has no application.
For the foregoing reasons, this regular second appeal being devoid of any force, is dismissed.
(J.R.) Appeal dismissed.
PLJ 2006 Lahore 269
Present: Syed Sakhi Hussain Bokhari, J.
ABDUL KARIM--Petitioner
versus
MUHAMMAD ISMAIL--Respondent
C.R. No. 401-D of 1997, heard on 28.2.2005.
(i) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 129(F)--Specific Relief Act, (I of 1877) S. 42--Suit for declaration claimed owner of land in question by Plaintiff--Corroborated statement--Objection raised that document had not figure in list of plaintiff--Objection raised was over ruled and document was allowed to be exhibited--Validity--Document naturally gives rise to presumption raised by Art. 129(F) of Qanun-e-Shahadat Order, according to which assumed that common course of business was followed in regard to transaction contained in document have accepted plea of respondent that petitioner did receive amount of money in question--No worthwhile rebuttal of such document has come from defendant/petitioner--Held : No explanation was forth coming as to why exception was not taken to admissibility at time of reception into evidence. [Pp. 271 & 272] A & B
(ii) Specific Relief Act, 1877 (I of 1877)--
----S. 42--Technical objection--Despite being out of possession--Disregard or violation--Legality--Objection was technical nature which was not effect on merit of the case--Petitioner can be declared to be holding possession for and on his behalf has actually claimed to be in constructive possession of land, the petitioner has automatically become tenant of respondent--Held: Respondent could competently seek eviction from the suit land through revenue authorities thus respondent seems to be quite adequate and did not involve disregard or violation of legal provision--Further held: No body could be non-suited on account of technicality of the nature--Mistake highlighted even floating on surface of the record and can be conveniently corrected without any difficulty--Petition dismissed. [Pp. 272 & 273] C & D
Mr. Muhammad Farooq Qureshi Chishti, Advocate for Petitioner.
Dr. Abdul Basit, Advocate for Respondent.
Date of hearing : 28.2.2005.
Judgment
This revision petition is directed against the judgment dated 24.2.1997 passed by learned Addl. District Judge, Kasur whereby appeal brought by petitioner against the judgment and decree dated 18.12.1995 passed by learned Civil Judge, Kasur was dismissed.
Relevant facts for the disposal of this revision petition are that Muhammad Ismail, respondent filed suit for declaration against Abdul Karim, petitioner and stated that he was owner of suit land (measuring 45-Kanals 19-Marlas Khewat No. 13 situated in Chak No. 55 Tehsil and District Kasur) and defendant/petitioner was in possession of the same as tenant. He further stated that defendant/petitioner is real brother of his wife and he (plaintiff/respondent) was serving in England. He visited Pakistan in 1966 and planned to purchase some land, whereupon Abdul Karim, petitioner, advised him that he would purchase land for him and he would cultivate the same as his tenant and pay him share of produce. The respondent paid him Rs. 2000/- for payment of earnest money and under-took to send him (petitioner) remaining price from England. He sent him one thousand pounds (Rs. 19,228/-) through bank draft, whereupon defendant/petitioner informed him that he had purchased land measuring 45-Kanals 19-Marlas for him and that he was cultivating the same as his tenant. The plaintiff came back after about 1« years and defendant met him in his village (Chak No. 271-RB District Faisalabad) and on his inquiry defendant admitted that he had purchased land measuring 45-Kanals 19-Marlas from Iftikhar Ali Shah, vide Mutation No. 518 dated 26.9.1966, for the plaintiff. He averred that in June 1973, he was in need of money and he demanded share of produced from defendant but he became annoyed. He asked his relatives to get copies of revenue record but they informed the plaintiff that defendant/petitioner had got transferred the suit land in his own name, whereupon the plaintiff lodged criminal case under Section 406, PPC against defendant/petitioner and his father. Thereafter defendant and his father requested the plaintiff not to pursue the criminal case and promised to pay his share of produce and also to transfer suit land in his favour, therefore, plaintiff did not pursue the criminal case and the same was cancelled. The plaintiff stated that he visited Pakistan after 2/3 months and asked the defendant to arrange for transfer of the suit land in his favour and to pay share of the produce, but he refused, therefore, he was constrained to file suit. The petitioner/defendant mentioned in written statement that the plaintiff had obtained Rs. 8500/- from him, as loan, when he left for England and thereafter he paid Rs. 11,000/- to his wife and children. He asserted that he had himself purchased land measuring 31-Kanals 5-Marlas vide Mutation No. 518 dated 26.9.1996 from Iftikhar Ali Shah and since then he was in possession of the same. Learned trial Court framed issues, recorded evidence and decreed the suit, brought by the respondent, vide judgment dated 18.12.1995. The petitioner filed appeal thereagainst which was dismissed by learned Addl. District Judge, vide judgment dated 24.2.1997. Hence this revision petition.
I have heard the arguments and perused the record.
As mentioned above the case of respondent is that petitioner is real brother of his wife and that he had paid him amount for purchasing suit land, therefore, he is owner of the same but petitioner/defendant fraudulently got the same transferred in his own name. However case of the petitioner is that he had paid the sale price of the suit land, therefore, he was owner of the same and respondent/plaintiff has no concern with the same. The plaintiff examined PW.1, Muhammad Ramzan, who is general attorney of plaintiff/respondent. He stated that plaintiff is resident of Chak No. 271-RB and he asked petitioner to purchase land for him and the same would remain under his cultivation as tenant. The plaintiff paid Rs. 2000/- to defendant for payment of earnest money and promised to send remaining amount from England. He further stated that thereafter plaintiff sent remaining amount (one thousand pounds) through bank draft. Thereafter defendant sent letters (Ex. P. 3 to Ex. P. 6) to plaintiff. PW.2, Muhammad Boota also corroborated the statement of PW.1. The defendant examined DW.1, Muhammad Siddique and he himself appeared as DW.2 in support of his case. As mentioned above, respondent/plaintiff sent 1000/- pounds to petitioner through bank draft Ex. P.2. It is pertinent to note that certificate of remittance (Ex. P.2) was not taken exception to with any vehemence at the time the same was introduced into evidence. The only objection raised was that the document (Ex. P.2) did not figure in the list of reliance of the plaintiff. However the objection, so raised, was over ruled by the learned trial Court and the document was allowed to be exhibited. This document quite naturally gives rise to the presumption raised by Article 129(F) of Qanun-e-Shahadat, according to which it has to be assumed that common course of business was followed in regard to the transaction contained in document, Ex. P.2. Learned Courts below have accepted the plea of the respondent that the petitioner did receive the amount of money in question vide Ex. P.2. Apart from self-serving statement of the petitioner, no worthwhile rebuttal of the said document has come from the side of defendant/petitioner.
The same appears to be the position of the letters (Ex. P.3 to Ex. P.6) which were admitted into evidence by learned trial Court without objection by the defendant/petitioner. The petitioner denied any responsibility for the author-ship of letters Ex. P. 3 to Ex. P.6, in his statement before the learned trial Court. However no explanation in forth coming as to why exception was not taken to admissibility of the said letters at the time of their reception into evidence. Likewise the petitioner has failed to explain as to why the letter sent by his father to the respondent were allowed to be exhibited without objection in the trial Court.
As regards the technical objection raised on behalf of the petitioner that since respondent has failed to ask for the further relief of possession, despite being out of possession, therefore, his suit is not maintainable in view of the bar contained in the proviso to Section 42 of the Specific Relief Act. This objection is of technical nature, which has no effect on the merits of the case. The respondent by asking the relief that the petitioner may be declared to be holding possession for and on his behalf, has actually claimed to be in constructive possession of suit land. As a consequence of the decree passed in favour of the respondent, the petitioner has automatically become tenant of the respondent. Hence the respondent can competently seek his eviction from the suit land through revenue authorities thus the relief prayed for by the respondent seems to be quite adequate and does not involve disregard or violation of aforementioned legal provision.
It has also been agitated on behalf of the petitioner that area of the suit land, as described in the plaint, quite clearly exceeds the land actually transferred by Iftikhar Ali Shah, vendor, vide Mutation No. 518, which is on record as Ex. P. 9 and Ex. D. 1, according to which land measuring 33-Kanals 2 Marlas was transferred by Iftikhar Ali Shah, vendor. The area of the suit land has been shown to be 45-Kanals 19-Marlas in the plaint. Having Juxtaposed the plaint with the particulars borne on Mutation No. 518, I find that plaintiff/respondent, while drafting the plaint, fell into error by showing area of suit land to be 45-Kanals 19-Marlas. This was perhaps done inadvertently. Vide sale Mutation No. 518, Iftikhar Ali Shah transferred 31-Kanals 5 Marlas from Khewat No. 13 and 1-Kanal 17-Marlas from Khewat No. 15 (1/8 share), total area whereof stood at 14-Kanals 14-Marlas. The vendor, therefore transferred only 1-Kanal 17-Marlas out of Khewat No. 15. However it seems that respondent/plaintiff mistakenly included the entire area of Khewat No. 15 in the suit land. That is why area of suit land was mistakenly alleged to be 45-Kanals 19-Marlas, which unduly included total 14-Kanals 14-Marlas area of Khewat No. 15, although out of this Khewat only 1/8th share, measuring 1-Kanal 17-Marlas, had been transferred by the vendor, through the mutation in question. This, therefore, appears to be case of mis-description of the suit land in the plaint. The law is well settled that no body can be non-suited on account of any technicality of this nature. The mistake highlighted above is even otherwise floating on the surface of the record and can be conveniently corrected without any difficulty. It is accordingly held that the correct area of the suit land is only 33-Kanals 2-marlas, as reflected in Mutation No. 518 (Ex. P.9/Ex. D.1). With the above modification, this revision petition is dismissed. No order as to costs.
(R.A.) Revision dismissed.
PLJ 2006 Lahore 273 [Multan Bench Multan]
Present: Muhammad Khalid Alvi, J.
MUHAMMAD SHARIF--Petitioner
versus
MEMBER (COLONIES) BOARD OF REVENUE PUNJAB, LAHORE and 4 others--Respondents
W.P. No. 1989 of 2005, heard on 30.6.2005.
Colonization of Government Lands Act, 1912 (V of 1912)--
----Ss. 10 & 30--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Proprietary rights in respect of land in possession under Fifteen years lease Scheme--Petitioner entitled for grant of proprietary rights--Petitioner failed to deposit the installment--Colony Assistant directed the resumption of land--Appeal dismissed--Instead of challenging the order before B.O.R., petitioner made application to Distt. Collector for extension of time which was allowed--Arrears were paid in compliance with the said order--Conveyance Deed was prepared--But some body from the village filed a complaint against petitioner--Distt. Collector referred the matter to commissioner for review of order of appeal--Reference was answered in negative--Revision dismissed--Conduct of the petitioner was not fair enough to exercise the discretion but the petitioner associated the land for the last more than three decades--Petitioner was allowed to continue in possession in terms of the existing policy--Petitioner shall be at liberty to file fresh application for the grant of PRS as and when any scheme is enforced. [Pp. 274 & 275] A, B & C
Syed Kabir Mehmood Shah, Advocate for Petitioner.
Rana Muhammad Amir Khan, A.A.G. and Mr. Muhammad Khalid Zauq, D.D.O.(R) Pakpatten, for Respondents.
Date of hearing : 30.6.2005.
Judgment
Brief facts of the case are that land in question was allotted to the petitioner on 22.5.1971 on 15 years' lease scheme. The Deputy Commissioner vide order dated 8.8.1982, considered the case of the petitioner for the grant of proprietary rights and held him to be entitled. Accordingly petitioner was called upon to pay the installment. On failure of the petitioner vide order dated 9.2.1987, he was allowed two month's time with some fine to clear all the arrears. The petitioner failed to deposit the installment and on 11.4.1987 he applied to the Colony Assistant for the extension of time. The Colony Assistant vide order dated 22.4.1987 on the ground that the installments have not been paid, directed the resumption of the land of the petitioner. This order was assailed by the petitioner through an appeal before the Commissioner, which was dismissed on 28.4.1987.
Instead of challenging this order before the Board of Revenue the petitioner on 9.5.1987 made an application to the Deputy Commissioner for extension of time, which was allowed and the petitioner was directed to make payment of installments within one month. Except for one installment the rest of the arrears were however paid by the petitioner in compliance with the said order. In the meanwhile, Conveyance Deed was also prepared for its registration in favour of the petitioner but somebody from the village filed a compliance against the petitioner, whereupon, the Deputy Commissioner on 17.5.1984 referred the matter to Commissioner and requested to review the order dated 28.4.1987. This reference was answered by the Commissioner in negative vide order dated 8.8.1995 keeping in view the conduct of the petitioner. Thereafter, in the year 1995, petitioner filed a revision before the Board of Revenue challenging order dated 28.4.1987 passed by the Additional Commissioner, the same was dismissed by the learned Member Board of Revenue vide order dated 10.1.1996 on the ground that the revision is barred by time. This order was sought by the petitioner to be reviewed by the Board through a petition filed in the year 2000 which also stands dismissed vide order dated 22.5.2003. All these orders are being assailed through the instant Constitutional petition.
It is contended by the learned counsel for the petitioner that he is associated with the land in question for the last about 35 years and is in actual physical possession; that the petitioner has re-shaped the land in question into an ideal piece of land by spending a huge amount from his pocket; that the petitioner has deposited all the arrears of the State and nothing is outstanding against him; that the defaults, if any during this period committed by the petitioner were curable defaults and at the most some penalties could have been imposed which were actually imposed and paid by the petitioner.
On the other hand, learned AAG contends that the land in question was resumed vide order dated 22.4.1987. Appeal against the said order was dismissed by the learned Additional Commissioner (Consolidation) vide order dated 28.4.1987. Thereafter, instead of challenging the said order before the Board of Revenue the petitioner filed an application before the Deputy Commissioner on 9.5.1987 seeking extension of time, without disclosing the dismissal of his appeal by the Additional Commissioner and obtained extension of time of one month. It is thus contended that the petitioner by playing fraud had obtained extension from Deputy Commissioner. Since the conduct of the petitioner is unfair, therefore, he is not entitled to discretionary relief by this Court. It is further submitted that Commissioner had also commented upon the conduct of the petitioner while refusing on 8.8.1995 the reference sent by the Deputy Commissioner for review of order dated 28.4.1997.
As a right of reply, learned counsel for the petitioner contends that the appeal filed by the petitioner against the order dated 22.4.1987 was dismissed in limine and the fact of its dismissal was not conveyed by petitioners counsel to the petitioner, therefore, since he was not having any knowledge of its dismissal, therefore, he had innocently filed application before the Deputy Commissioner on 9.5.1987 for extension of time and faithfully complied with the order.
After having heard the learned counsel for the parties on 4.7.2005 I directed the learned Law Officer to ensure the presence a responsible office who is in a position to make a positive statement with respect to the status of the land in question, Mr. Muhammad Khalid Zauq DDOR PPS is present in Court he states that the petitioner is associate with the land in dispute for the last about 30/35 years. The said land presently is not required for any purpose. Even if, the said land is resumed from the petitioner, the same would be leased out to some other person for cultivation as per the on going policy.
Keeping in view the above statement although the conduct of the petitioner was not fair enough to exercise the discretion by this Court in Constitutional jurisdiction but still in view of the fact that he is associate with the land in dispute for the last more than three decades and also for the reason that land was not required by the State for any public purpose for the time being, he may be allowed to continue in possession as lessee in terms of the existing policy. The DDOR present in Court is directed to calculate the entire outstanding amount and penalties leviable on the petitioner and the amounts deposited by him towards the said lease money and penalties and also sale consideration deposited by him. If anything is still outstanding against him, the same shall be recovered from him and if he has deposited more than the said amount, the same may be refunded to him or adjusted in future lease. The petitioner shall however will be at liberty to file fresh application for the grant of PRs as and when any scheme is enforced. With this observation this petition stands disposed of.
(R.A.) Petition disposed of
PLJ 2006 Lahore 276
Present: Mian Saqib Nisar, J.
QASIM ALI--Petitioner
versus
KHADIM HUSSAIN (deceased) through Legal Representatives and anothers--Respondents
C.R. No. 1761 of 1999, heard on 22.6.2005.
(i) Transfer of Property Act, 1882 (IV of 1882)--
----S. 53-A--Agreement to sell--Proof of--Admission of co-defendant--Effect--Admission of co-defendant would not be binding upon other defendant--Despite admission of co-defendant, petitioner/defendant having denied execution and attestation of agreement to sell, claiming the same to be result of fraud and collusion, plaintiff was required to have proved valid execution and attestation of document in question. [Pp. 278 & 279] A & B
(ii) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 17 & 79--Agreement to sell--Two attesting witnesses of agreement to sell must be examined to prove execution of the same--Agreement to sell relating to immovable property if not proved by examining two attesting witnesses inspite of the same having been admitted by co-defendant, the same would not stand proved. [Pp. 279 & 280] C & D
(iii) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 79--Statement of scribe of document--Evidentiary value of--Where second attorney witness has not been produced in support of execution of document relating to immovable property, scribe cannot be treated to be the attesting witness unless he had signed that document as an attesting witness--Conditions for producing scribe as a witness of execution of document stated. [Pp. 280 & 281] E
(iv) Specific Relief Act, 1877 (I of 1877)--
----S. 12--Suit for specific performance of agreement to sell--Defendant having resisted suit and having challenged agreement to sell, alleging the same to be back-dated and result of collusion between plaintiff and co-defendant, plaintiff should have produced cogent corroborative evidence in proof of such document--Courts below erred in relying on admission of co-defendant--Findings of Courts below being based misreading and non-reading of record coupled with ignorance and misapplication of law were set aside resulting in dismissal of plaintiff's suit. [Pp. 281 & 282] F & G
NLR 1983 AC 11; PLD 1996 Lahore 367; PLD 1995 Lahore 395; 2002 SCMR 1089; 2001 YLR 1967 and 2000 YLR 2953 ref.
Ch. Manzoor Hussain Basra, Advocate for Petitioner.
Mr. Muhammad Farooq Qureshi Chishti, Advocate for Respondents.
Date of hearing : 22.6.2005.
Judgment
The suit for the specific performance brought by Khadim Hussain/predecessor-in-interest of Respondent No. 1 to 10 against the petitioner and Respondent No. 11 Nazar Muhammad, has been allowed by the learned trial Court vide judgment and decree dated 23.7.1996. Appeal of the petitioner has failed on 26.6.1999.
Briefly stated the facts of the case are, that Nazar Muhammad Respondent No. 11, was the owner of the suit land measuring 14-Kanals situated at Mauza Kot Qazi Tehsil Kamoki District Gujranwala. He, through a Sale Mutation No. 421 dated 21.2.1989 sold the said land in favour of the Petitioner/Defendant No. 2. At the relevant time, the possession of the land was with Khadim Hussain/the plaintiff. It is the case of the petitioner that Khadim Hussain was a tenant of the property. Anyhow, said Khadim Hussain claiming that Nazar Muhammad through an earlier agreement to sell dated 9.10.1988 had agreed for the sale of the same land to him for a consideration of Rs. 25,000/- out of which Rs. 20,000/- were received by him as earnest money, whereas for the payment of balance consideration of Rs. 5,000/-, 14 months time i.e. till 3.12.1989 was granted to the plaintiff, when the sale was to be finalized. But according to Khadim Hussain/the plaintiff, Nazar Muhammad failed to fulfil his obligation under the agreement and had sold the property in favour of the Petitioner/Defendant No. 2, therefore, he on 20.1.1990 brought the suit for the specific performance impleading the petitioner as a defendant and also impugning the sale in his favour. It is interesting to note, that Nazar Muhammad, in his written statement, conceded the agreement to sell in favour of the plaintiff Khadim Hussain/predecessor-in-interest of Respondents Nos. 1 to 10 and also pleaded that no sale was made in favour of the petitioner through Mutation No. 421 dated 21.2.1989, which according to him was the result of fraud and misrepresentation. However, in Paragraph No. 4 of the written statement, he averred that he is prepared to finalize the deal in favour of the plaintiff, after the cancellation of the Mutation No. 421, for which, he asserted to take appropriate legal action, but did not do so. The Petitioner/Defendant No. 2, in his written statement, denied the execution of the agreement to sell and claimed it to be back dated and also collusive between the plaintiff and Nazar Muhammad.
Issues were framed; he parties were put to trail. In order to prove the agreement to sell (Ex.P.1), the respondent/plaintiff examined PW-2 Ch. Muhammad Afzal Bhatti, Advocate, the alleged scribe of the document. PW.3 is Muhammad Ashraf, the marginal witness, whereas the other two marginal witnesses of the document (Ex. P.1) have not been examined. On the conclusion of the trial, the learned Civil Judge held that as the agreement to sell has been admitted by Nazar Muhammad, hence, the admitted facts need no proof; therefore, no dispute remains qua the proof and the execution of agreement and the receipt of earnest money of Rs.20,000/-. About the validity of the sale mutation in favour of the petitioner, it is held that because of the findings on Issue No. 1, and in view of the assertion of Nazar Muhammad in his written statement challenging the same on the basis of fraud etc, the mutation has lost its legal value. The findings upon the issue of bonafide purchaser were also returned against the petitioner and resultantly, the suit was allowed. The petitioner preferred an appeal, but without any success and the findings of the trial Court have been affirmed more or less for the same reasons, hence this revision petition.
Learned counsel for the petitioner has argued, that according to the law, an admission of a co-defendant is not binding upon the other and this rule shall squarely apply to the present case, because the petitioner, who had an independent right to challenge the sale agreement, took a clear stance, that the said agreement is back-dated and is the result of fraud and collusion between the plaintiff/respondent and Nazar Muhammad, therefore, the agreement should have been proved against the petitioner in accordance with law. In this context, it is submitted that according to Article 79 read with Article 17(2) of the Qanun-e-Shahadat Order, 1984, for the purposes of validity and the proof of the execution of an agreement envisaging future contractual obligation, the instrument is required to be attested and proved by two witnesses, in the instant case, the other alleged marginal witnesses of Ex. P.1, have not been examined; PW-2 Ch. Muhammad Afzal Bhatti, Advocate, is only the alleged scribe of the document, but is not an attesting witness, therefore, his statement cannot be considered to meet the mandatory requirement of Article 17(2) and 79 of the Order ibid. Thus, the findings of the two Courts below, even concurrent, about the validity and the proof of the agreement (Ex. P.1), cannot be sustained.
I have hard the learned counsel for the parties. The two Courts below infact have basically relied upon the admission of the respondent Nazar Muhammad about the execution of the agreement to sell. But according to the settled law, an admission of a co-defendant is not binding upon the other. This rule, in my view, shall more stringently be applicable to the present case, because the petitioner had already purchased the suit property from Nazar Muhammad and a mutation in this behalf had been attested in his favour. Through, Nazar Muhammad, in his written statement, as a defendant, had denied the sale and asserted to challenge it in appropriate proceedings, but he never did so. Therefore, for all intents and purposes, throughout the petitioner possessed the legal title to the suit property and had every right to defend and protect this rights as lawful owner thereof. Nazar Muhammad when had ostensibly transferred his interest and rights in the suit property in favour of the petitioner, and never challenged the alienation independently before any forum, except setting up the defence in this case, his admission about the execution of Ex. P.1, cannot be received as an admission binding the petitioner, being a co-defendant of the case. Reliance in this behalf can be placed upon Saleem and another vs. Malik Jalal-ud-Din and 7 others (NLR 1983 AC 11). Therefore, despite the admission of Nazar Muhammad in the circumstances of the case, when the petitioner has denied the execution and attestation of Ex. P.1 and claimed it to be the result of fraud and collusion between Nazar Muhammad and the respondent Khadim Hussain, it was incumbent upon the plaintiff to have proved the valid execution and attestation of Ex. P.1.
Now coming to the question, if the valid execution and the attestation of Ex. P.1 has been proved. According to Article 17 of the Qanun-e-Shahadat Order, 1984, an agreement of sale regarding immovable property, which falls within the purview of the above article, requires compulsorily attestation by two witnesses. Article 79 of the Order ibid., ordains that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses are called for the purpose of proving its execution. From the collective reading of these two articles, it was absolutely essential for the respondent to have examined at least two attesting witnesses of the agreement to sell, in order to prove its execution, but he only examined Muhammad Ashraf as PW.3, whereas two other marginal/attesting witnesses of the document namely Sarwar Hussain and Muhammad Arif have not been examined and no reason for this lapse has been propounded. The argument of the respondent's counsel, that Ch. Muhammad Afzal Bhatti, Advocate, who has scribed the document and has signed Ex. P.1, has appeared as P.W.2 and deposed about its due execution, therefore, he should be considered to be the other attesting witness of the instrument, has no force for the reason that the Article 17(2) has two fold application, when exclusively and independently considered and applied, it only confines, relating to the validity of an instrument/agreement; thus, such an instrument, which falls within the mischief of this Article, but is not attested by the two witnesses, notwithstanding any admission of the opposite party about its execution, still its validity and enforceability can be called in question and the rights and obligations arise out of an agreement can be avoided on account of its failure to meet the mandatory requirements of the law. The present case does not fall within the above category as ostensibly Ex. P-1 is attested by three witnesses; however, the other application of Article 17 is when it is read together with Article 79, which provides that a document, if required by law, to be attested, it shall not be used as a evidence until two attesting witnesses are called for the purposes of proving its execution, in this status Article 17 is providing the basis and is the source of attracting Article 79, as it is the law requiring the compulsorily attestation of the instrument. Thus in a case, where the execution of a document is in issue, it is essential and mandatory upon the person relying upon the document to examine two of the attesting witnesses. Reliance in this behalf can be placed upon the following judgments, holding:--
Abdul Khaliq vs. Muhammad Asghar Khan and 2 others (PLD 1996 Lahore 367).
"The appellant to prove this document should have examined at least two of attesting witnesses whereas he only examined one attesting witness namely Qaisar Iqbal DW-1. The document, therefore, was not proved in accordance with law. The same has to be excluded from the consideration."
Muhammad Yaqoob and others vs. Naseer Hussain and others (PLD 1995 Lahore 395).
"In order to prove such document plaintiff has to call at least two attesting witnesses and if the document is not proved in accordance with law it has to be excluded from consideration."
Mst. Rasheeda Begum and others vs. Muhammad Yousaf and others (2002 SCMR 1089).
"The agreement to sell in Civil Appeal No. 1348 of 1996 was executed on 18.3.1991 and attested by Muhammad Rafiq and Muhammad Sarwar. Having been executed after promulgation of the Qanun-e-Shahadat Order, 1984 its execution ought to have been proved in accordance with Article 79 (ibid) but the evidence on record consists of only one attesting witness. Payment of earnest money has also not been proved on record. The evidence produced by the appellant does not meet the requirements of Article 79 of the Qanun-e-Shahadat Order, 1984."
From all the above decisions, it is undoubtedly clear that, where a document is required by law to be attested, as an agreement to sell immovable property is, by two attesting witnesses, it has to be proved by examining such number, otherwise, the document is not proved and even if it has been admitted in evidence in the statement of one of the witnesses, yet it cannot be used. In this case, the petitioner has only examined one attesting witness and there is no explanation as to why the two others have not been produced or summoned through the process of the Court, to testify about the attestation and the execution of Ex. P.1, by Nazar Muhammad. The submission that PW.2 Ch. Muhammad Afzal Bhatti, Advocate, who scribed the document, should be considered to be the second attesting witness, suffice it to say that there is no bar in law that the statement of a scribe can never be considered as being that of a person witnessing the execution. But, in my firm view, this is subject to two very basic conditions. Firstly, that the scribe should also have signed the document as an attesting witness and if that is not so, it must be proved on the record that at the time when the document was executed, he was present and not only witnessed the execution by the executants, but also the attestation by the required number of witnesses. Secondly, that the witnesses, whom the parties have chosen as the attesting witnesses, with the obvious intention, that in case of dispute about the execution, it is they, who shall testify in this behalf, but for inevitable and the circumstances, beyond the control of the parties, cannot be examined. Except fulfilling the second condition, it shall be impermissible for a party, to examine the scribe as a substitute for the attesting witness, who shall not be considered as an attesting witness in terms of Article 79, with the consequences to follow. Besides, the principles of withholding the best evidence could also be attracted against the defaulting party.
Besides, Muhammad Afzal Bhatti, Advocate (PW-2) in his statement, has not stated that he signed the document as an attesting witness, rather specifically deposed that it was as " " therefore, his statement has no much evidentiary value in the light of the following judgment, which provides:
Altaf Hussain Shah vs. Nazar Hussain Shah (2001 YLR 1967).
"A party relying upon a document which is denied by the opposite party must prove its execution in accordance with law. In such a case the rule of best evidence has to be followed and if such best evidence is not produced, the standard of proof required to prove the document shall be lacking." Furthermore that "The statement of the scribe has no evidentiary value as he has signed it merely as a scribe and not as a witness. Ordinarily, the scribe writes out the document and signs his name before the executant signs the document. It is, therefore, not proper to treat the scribe as an attesting witness."
Further reliance in this behalf can be placed upon Mst. Fatima Bibi vs. Mst. Nasim Akhtar and others (2000 YLR 2953).
Therefore, the nutshell of the above discussion is, that the PW-2, admittedly has not signed the document as an attesting witness; he does not qualify the above specified criteria, which to my mind, is sine qua non for a scribe to be an attesting witness; and his statement had no much evidentiary value. Resultantly, on account of the above, it can be safely held that Ex. P.1 was not proved in accordance with law.
In addition to the above, I also feel it expedient to hold that the petitioner had resisted the suit and challenged the agreement to sell specifically alleging it to be back-dated, and the result of collusion between the plaintiff and Nazar Muhammad. Thus, in such circumstances, the plaintiff should have produced further corroborative evidence, such as by summoning the relevant record/register of stamp vendor, alongwith the vendor to establish that the stamp paper for the purpose of the agreement was purchased on or before 9.10.1988, so as to eliminate the possibility and the doubt that the document was antedated. This has not been so done and the omission has not been explained. Moreover, the document is allegedly shown to have been scribed by an Advocate and not a professional deed-writer, in my view, it was probably done to avoid the difficulty, that if it was scribed by a deed-writer, the incorporation in his requisite record was required, which register has page-marking and carries serial numbers. Whereas, a lawyer is not supposed to maintain any such record and can conveniently claim, the writing of a document on a particular date, without there being any independent and corroborative proof about the date on which it was actually written.
Both the Courts below have glaringly ignored these important aspects, which tantamount to misreading and non-reading of the record, and the ignorance and misapplication of law, therefore, such judgments and decrees cannot be sustained, especially in the light of the facts that the respondent/plaintiff could not prove the agreement to sell in accordance with law and the admission of Nazar Muhammad has no effect upon the rights of the petitioner, who admittedly had purchased the property from Nazar Muhammad. Moreover, Nazar Muhammad, though in the written statement, had asserted to challenge this sale, but never did so, through any proceedings and therefore, the sale as against Nazar Muhammad remains intact. Resultantly, by setting aside the judgments and decrees of the two Courts below, the suit filed by the plaintiff/respondent against Nazar Muhammad for the specific performance stands dismissed. The revision petition is accordingly allowed.
(A.A.) Revision accepted.
PLJ 2006 Lahore 282
Present: Mian Saqib Nisar, J.
FATEH SHER--Petitioner
versus
MUHAMMAD HAYAT and others--Respondents
C.R. No. 2547 of 2004, heard on 15.4.2005.
(i) West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (V of 1962)--
----Ss. 3 & 7--Punjab Limitation (Custom) Act, 1920--Preamble--Punjab Custom Power to contest Act 1920, Preamble--Punjab Muslim Law (Shariat) application Act 1948, Preamble--Last male owner dying issueless--Widow of deceased owner became limited owner--Suit for declaration by reversioner was compromised whereby plaintiffs were declared to be owners to the extent of 2/3 rd share of property left by deceased male owner--Widow became limited owner to the extent of 1/3rd of property left by her deceased husband--Limited owner died in 1981--West Pakistan Muslim Personal law (Shariat) Application Act, 1962, having become law of land, Punjab Limitation Custom Act 1920, Punjab Custom Power to contest Act 1920 and Punjab Muslim Law (Shariat) Application Act 1948 were repealed by S. 7 of the Act of 1962--After repeal of above mentioned Acts, heirs of limited owner became co-owners--There is no limitation for a co-sharer to enforce his such rights against another co-sharer--Besides, period of limitation would not impede enforcement of rights of inheritance--Suit of plaintiffs for enforcement of their rights of inheritance was thus, within limitation. [Pp. 288 & 289] A & B
(ii) Specific Relief Act, 1877 (I of 1877)--
----S. 42--Suit for declaration without seeking separate possession--Maintainability--Plaintiff's suit was for declaration, about their right of inheritance in property in question and was also for joint possession--If plaintiff's suit was decreed, they would get "Hisadari possession" and therefore, omission in that behalf, would not bring case of plaintiffs within mischief of S. 42, Specific Relief Act 1877--Findings of Courts below that suit was in competent was set aside and the same was decreed in terms of Muslim Law of inheritance--Shares of heirs were worked out by High Court in accordance with law of inheritance in terms of Muslims Law. [P. 290 & 291] C & D
Sheikh Naveed Shahryar, Advocate for Petitioner.
Mr. Muhammad Farooq Qureshi Chishti, Advocate for Respondents Nos. 1 to 4, 7 (i), (iii), 9 (i) to (iv) and 10.
Kh. Saeed-uz-Zafar, Advocate for Respondents 6, 7 (i) (iv) 8 (i) to 8(vii) and 11 to 16.
Date of hearing : 15.4.2005.
Judgment
The instant revision i.e. 2547 of 2004, as also FAO No. 264 of 2002, CR No. 3044/2004 and FAO No. 330 of 2004, are being disposed of together, as all involve common questions of law and facts.
Briefly stated the facts of the case are, that Gama and Shera, were two brothers; Gama had a son Fateh Sher and two daughters Mst. Changi and Mst. Gullan; Shera was succeeded by Lal and Jamal; Fateh Sher died issue-less, in the year 1927, and Mst. Fateh Khatoon his widow became the limited owner of the estate of the deceased. Lal and Jamal, filed a suit for declaration on 8.3.1936, alongwith Mst. Changi, challenging the limited ownership of Mst. Fateh Khatoon by relying upon a will in their favour by Fateh Sher; this suit was compromised and a joint application dated 7.12.1937 Ex. P-6, in this behalf was moved to the Court by the parties, according to which, it was agreed that Mst. Fateh Khatoon shall retain 1/3rd of the estate as a limited owner, whereas 2/3rd shall be the exclusive ownership of Lal and Jamal, who were acknowledged to be already in possession of such share. In terms of the compromise, the suit was decreed on 7.12.1937, Ex. P-8 and this decree was given due effect in the revenue record through Mutation No. 394 dated 29.11.1938.
Out of the 1/3 share, which Mst. Fateh Sher retained as a limited owner under the aforesaid decree, she through Mutation No. 582 dated 24.10.1950, sold certain land in favour of Baro, Hayat, and Noor Muhammad etc., the predecessor in interest of some of the defendants. Mst. Changi, Mst. Gullan, Lal and Jamal filed a suit in the year 1950, challenging the sale as being without the necessity and against their reversionary rights. This suit was decreed on 29.11.1951, Mst. Fateh Khatoon, was affirmed as the limited owner of 1/3 share and the sale was adjudged as ineffective qua the reversionary rights of Lal and Jamal, but was dismissed to the extent of two ladies. However, the decree was to take effect on account of the re-marriage or the death of Fateh Khatoon.
Mst. Fateh Khatoon, died on 12.1.1981 and in pursuance of the decree mentioned above, the Mutations Nos. 37 to 42 were attested on 14.9.1981, in favour of Lal and Jamal. Aggrieved of the above, the vendees of such sale or their successors challenged the mutations on the revenue side as being illegal and ineffective qua their rights. Their appeal was rejected by the Collector Khushab vide order dated 17.5.1982 Ex.P-25. They further assailed the matter through revision, but without any success, which was dismissed by the Commissioner by the order dated 17.10.1982 Ex. P-26. The respondents thereafter approached the Board of Revenue in its revisional jurisdiction, which petitions were accepted on 18.12.1985, Ex. P. 27; the relevant portion of the order is reproduced as under:--
"According to the decree granted by the Civil Court Fateh Khatoon was declared to be the owner of 1/3rd property with 2/3 property vesting in Lal and Jamal. The sale subsequently made by Mst. Fateh Khatoon in favour of her brother Baroo 1/2, Muhammad Hayat 1/4th and Noor Muhammad 1/4th is, therefore, to be considered as restricted as to the 1/3rd portion of the property, which Mst. Fateh originally inherited in 1927 as a limited owner. 2/3rd property would continue to vest with Lal and Jamal and their successors in interest. 3/4th of the property which vested with Mst. Fateh Khatoon after she had alienated 1/4th property in favour of Baroo, Muhammad Hayat and Noor Muhammad would then pass on to her their after her death in 1981. Accordingly, it is ordered as follows:
(i) Of the total property of 3200 Kanals inherited by Mst. Fateh Khatoon in 1927, she become full owner by virtue of the civil decree of 1/3rd property measuring 1066 Kanals and 7 Marlas;
(ii) of this 1066 Kanals and 7 Marlas, 1/4th share will vest in Baroo 1/2, Muhammad Hayat 1/4th and Noor Muhammad 1/4th;
(iii) the remaining 3/4th of 1066 Kanals and 7 Marlas would be inherited by the legal heirs of Mst. Fateh Khatoon on her death in 1981; and
(iv) the remaining property (3200) K-minas 1066 K-7Ms) would vest in Lal and Jamal/their successors.
This decision would be implemented in the revenue record."
On 22.2.1986, the successors of Jamal and Lal brought a civil suit, challenging the order of the Board of Revenue, claiming that out of 1/3 of the share, which was allowed to be retained by Fateh Khatoon, as the limited owner, they are entitled to 3/4th share on account of the inheritance, as being the legal heir of Fateh Sher, the last male owner of the property and only 1/4th share could have been validly sold by Fateh Khatoon to the vendees. They thus claimed to be the co-sharers of the property to the extent of their share mentioned above. This suit has been contested by the respondents, and the following issues were framed:--
Whether plaintiffs are owners in possession of suit land in their capacity as heirs and on the basis of decree of Civil Court dated 7.12.1937 and 19.11.51 and mutation Bearing Nos. 37 to 42, attested on 14.9.1981, and that the order passed by the Collector/EACO & Addl. Commissioner (C) Sargodha, respectively dated 17.5.1982 and 17.10.1982, are in accordance with law as held by Civil Court?
Whether order passed by Member Board of Revenue dated 18.12.1985 is against law, facts, without authority, void abinitio, arbitrary, malafide, as such it fails to effect rights of the parties?
Whether plaintiffs are entitled to the possession of land measuring 399 Kanals fully described at "B" of head note of plaint?
Whether the suit is not maintainable in its present form and as such plaintiffs are not in possession of the suit land?
Whether suit is not property valued for the purposes of Court fee and jurisdiction? If so, its effect?
What should have the proper Court fee for both the purposes?
Whether suit is bad for mis-joinder of causes of action and necessary parties?
Whether consolidation of holding land ordinance serves a bar to the institution of this suit?
Whether suit is not maintainable in view of preliminary objection No.---?
Whether defendants are entitled to recover special posts u/S. 35-A CPC?
Relief?
After the trial, the learned Civil Judge, seized of the matter, vide judgment and decree dated 16.5.1995, dismissed the suit, holding that on the enforcement of the Muslim Personal Law (Shariat) Application Act, 1962, the decrees dated 7.12.1937 and 19.11.1951, shall have no legal effects and shall be deemed to be void; therefore, Mst. Fateh Khatoon, would inherit 1/4th share in the whole of the estate of the deceased Fateh Sher and thus the sales made by her within the limits of such share, in favour of the respondents, is valid. The learned Civil Judge, though the order of the Board of Revenue was never challenged before him by the respondents, but of his own, declared the order of the Board of Revenue as illegal, in the following words:
"Plaintiff Fateh Khatoon was entitled to inherit the property of deceased husband according to her Islamic share of ¬ out of his property, whereas MBR confirmed 1/3rd share to Fateh Khatoon and as such his order to that extent to held to be illegal.";
The plaintiffs were thus not found entitled to 399 Kanals of the land, about which, they sought the declaration of ownership; the suit was also declared to be not maintainable, as the possession had not been asked. It may be pertinent to mention that on Issue No. 1, the trial Court has made lengthy discussion on account of which, its view is quite indiscernible about the limitation. But it seems if the Court was also of the view that the suit is out of limitation, whereas, there was no issue framed in this behalf. Anyhow, aggrieved of the above, the petitioners challenged the judgment and decree in appeal, which has been sustained by the learned Court of appeal, with the additional clear reason that the suit is barred by limitation.
"The plaintiffs have also proved that compromise dated 7.12.1937, of which Ex.P-1 is the attested copy. It is definitely mentioned in Ex. P-1 that Mst. Fateh Khatoon (Defendant No. 4) would retain one third share for her life time or till remarriage only. In this way instead of being made a full owner of one third share in her husband's land Defendant No. 4 continued to hold her husband's one third land in a manner peculiar to a widow's life estate."
Furthermore, while giving findings on the effect of the Shariat Act, 1948, upon the rights of the parties, it was held "It is true that under the provisions of the Shariat Act 1948 she will be entitled to one fourth share as Fateh Sher's heir under Islamic Law because he died without leaving any issue but this 1/4th share will be only out of the lead held by her now as a limited heir and not out of the whole of the land left by him." Therefore, according to the learned counsel, under the decree dated 7.12.1937, Lal and Jamal had acquired the rights of absolute ownership of the 2/3 estate of Fateh Sher, and to this an extent, the matter was a past and closed transaction; which was not effected or reopened in any manner on account of the enforcement of the Muslim Personal Law (Shariat) Application Act 1962. The first decree, therefore, shall not be rendered void and ineffective, rather it is only the decree dated 29.11.1951, which would be deemed to have abated, and Mst. Fateh Khatoon became the co-sharer to the extent of 1/4th out of 1/3rd which, she was holding as a limited owner, alongwith Lal and Jamal, as being the legal heir of the last male owner, under the Islamic Law of Inheritance. On the basis of above, it is submitted that it is settled law by now, that the possession of a co-sharer shall be the possession of all and that no limitation shall run against a co-sharer, thus the contrary view expressed by the two Courts below cannot be sustained. It is also submitted that the point of limitation had never been an issue between the parties, resultantly, to non-suit the petitioners on that basis, without given them proper opportunity of adducing the evidence, is nullity in the eyes of law. Likewise, it was argued that the petitioners being the co-sharers in the property, asking the possession under joint khata, their suit should not have been dismissed on account of the maintainability for not asking for the separate possession of the property, when they were asserting the Hisadari possession thereof.
Conversely, Kh. Saeed-uz-Zafar, learned counsel for the respondents has argued that the petitioners' suit is out of limitation, because they have never challenged the sales in favour of the respondents, within 12 years from the enforcement of the Muslim Personal Law (Shariat) Application Act, 1962, even if considering that they had become the co-sharers of the property; besides, on the promulgation of the Shariat Application Act, 1962, as also the enforcement of Section 2-A of the Muslim Personal Law (Shariat) Application Act (Amendment) Ordinance, 1983, the decrees dated 7.12.1937 and 29.11.1951, being under the Customary Law and on the basis of the reversionary rights of Lal and Jamal, shall stand abated and the entire estate of the deceased, shall be deemed reverted to the deceased for its distribution to his legal heirs according to the Shariat Law, therefore, Fateh Khatoon being widow, shall have 1/4th share, out of whole estate of her husband and resultantly, the sales made by Fateh Khatoon, within the limit of her 1/4th, are protected under the law.
I have heard learned counsel for the parties and find that there was no issue about the limitation and resultantly, both the Courts have erred in non-suiting the petitioners on a question, which has never been the proposition between the parties at the trial or before the Appellate Court. Assuming that it is purely a question of law and on the basis of the admitted facts of the case, can be resolved; and u/S. 3 of the Limitation Act, it is the duty of the Court to see if a lis before it within time or not. Yet the legal position in this behalf is quite simple. Because admittedly, Lal etc. challenged the sale made by Fateh Khatoon in favour of the vendee within the prescribed period of limitation under the provisions of the Punjab Limitation Act 1920 and that is at the best what they could have done under the law in vogue at the relevant time. This suit was decreed in the terms as below:
"In view of the above findings, this suit, so far as it relates to Mst. Chungi and Mst. Gullan, fails but succeeds as regards Lal and Jamal plaintiffs.
I, therefore, dismiss Mst. Chungi plaintiff's suit but pass a decree in favour of Lal and Jamal, plaintiffs, granting them the declaration that the sale in suit, shall be void and inoperative as against their reversionary rights after the death or remarriage of Defendant No. 4."
Obviously the above decree was to take effect, on the happening of the eventualities mentioned therein. But as per the record, Mst. Fateh Khatoon never married and died on 12.1.1981, there was thus no occasion for Lal, etc. to enforce the decree, before the termination of the limited ownership of Mst. Fateh Khatoon. However, in the meantime, a vital and important legal change was brought by West Pakistan Muslim Personal Law Shariat (Act 1962), and u/S. 3 thereof, the limited ownership in respect of the immovable properties held by a Muslim Female under the customary law, was terminated. In addition u/S. 7 of the Act, inter-alia Punjab Limited (Custom) Act, 1920, Punjab Custom Power to Contest Act 1920 and Punjab Muslim Law, (Shariat Application) Act 1948, were repealed, with the further signified legal consequences that the limited owner property would revert back to the last male owner, who in this case, was Fateh Sher, to be distributed amongst his legal heirs, whosoever were surviving at that time, according to the Muslim Law of Inheritance. In such a situation, Mst. Fateh Khatoon, remains entitled to the ownership of 1/4th share and the remaining has to go to Mst. Chungi and Mst. Gullan, Lal and Jamal. The decree dated 19.11.1951, on account of the law, was rendered nugatory and no further action on the basis of such decree under the earth while customary law could have been initiated or sustained by Lal, etc. Rather they alongwith Mst. Chungi, Mst. Gullan and Mst. Fateh Khatoon, or her vendees, who stepped into her shoes, became the co-owners of the property by operation of law and it is settled by now that there is no limitation for a co-sharer, to enforce his such rights against another co-sharer. Likewise, it is also an eminent principle, that period of limitation, shall not impede the enforcement of the rights of inheritance. Thus on both the counts, the suit of the plaintiffs could not be debarred by limitation. The view taken by the Courts below, particularly, the Court of appeal, that the suit is barred on account of limitation, in the following words--
"As the decree passed 1951 by Civil Court was not executable because of custom of Limitation Act 1920 was applicable to that decree and limitation for controlling alienation for filing a suit for declaration is 6 years and after death of limited owner, suit for possession should have been filed within three years. In this case limited ownership was terminated by operation of Muslim Personal Law, Shariat Application Act, 1962 and plaintiffs should have filed suit within three years from the termination of limited ownership, which they have not filed. According to customs limited Act of 1920, it is mandatory after having the decree of declaration that after termination of limited ownership, the claimants of property should file a suit for possession within prescribed period of 3 years but the present appellants-plaintiffs have not filed a suit for possession within time. If Article 141 of Limitation Act which is general law, is to be applied then limitation for filing a suit for possession is 12 years and as limited ownership of Fateh Khatoon terminated in 1962, therefore, plaintiffs should have filed suit upto 1974, which they have not filed within the limitation."
is based upon erroneous understanding and application of law. In the facts and circumstances of the case, Punjab Limitation Act, 1920, had no application at all, because Lal, etc. were not seeking the implementation of any decree declaring their rights under the customary law, rather, were asking for the enforcement of their rights of co-ownership and inheritance, which they had acquired under the law, and for which, as mentioned earlier, there is no limitation. The general law regarding the suits for the possession of the immovable property also did not create any hurdle in the way of Lal, etc, because the possession of the respondents/defendants was in the nature of the co-owners and Article 141, etc. was not attracted to the matter at all. Therefore, the view of the Courts below that the suit of the petitioners is barred cannot sustain, and it is hereby set aside, with the result that the dismissal of the suit on this account by two courts below, also stand reversed.
The other key question, involved in the case is about the effect of the decrees dated 7.12.1937 and 29.11.1951. As regards the first decree is concerned, suffice it to say that Lal, etc. and Mst. Chungi, had filed a suit for the declaration, against Fateh Khatoon wherein Mst. Chungi claimed that Fateh Sher, had made a will in her favour, about the whole of the property and the parties in that suit, entered into a compromise out of their own free will, whereby Mst. Fateh Khatoon, voluntarily gave 2/3rd share of the estate of Fateh Sher to Lal, etc, whereas 1/3rd share was retained by her, as being the limited owner. Lal, etc. in pursuance of the said decree, got sanctioned the Mutation No. 394 dated 29.11.1938 and thereafter their possession was under the decree. Thus for all intents and purpose, they became the exclusive owners of the property, which whereafter, never remained a part of the estate of Fateh Sher, to be distributed after the termination of the limited ownership of Fateh Khatoon. It is only 1/3 share, which remained with Mst. Fateh Khatoon, as the limited owner. The above reasoning is further strengthen that when Mst. Fateh Khatoon, sold her part of ¬ share in favour of contesting respondents; Lal, etc. Mst. Gullan and Mst. Chungi, all the four challenged the said sale as against their reversionary rights and the Court was pleased to re-affirm the exclusive ownership of Lal, etc. about 2/3rd share of Fateh Sher's estate, which is undoubtedly clear from the various paragraph of the judgment dated 29.11.1951 reproduced above. Consequently, when in the year 1962, the limited ownership of the females terminated, it only related to 1/3rd which Fateh Khatoon was holding under the custom and had nothing to do with 2/3rd share, which had already been conferred upon Lal, etc under the decree dated 7.12.2937. This decree as mentioned earlier had attained the finality and was a past and closed transaction. Mst. Fateh Khatoon, as the heir/widow of Fateh Sher, was only entitled to 1/4th of 1/3rd share, of which, she could validly transfer to the respondents and could be protected. The Courts below have fallen in serious error to hold that the decree dated 7.12.1937 had abated and therefore, Fateh Khatoon, shall be entitled to 14th Share of the Whole estate; this is absolutely misconceived and against the law, also for the reason that even under the provision of Section 2-A of the 1983 Ordinance, such decree never abated. Therefore, the judgments and decrees of the Courts below, refusing the relief to the petitioners with regard to their rights of inheritance in the property, cannot sustain.
As regards the question of maintainability of the suit for the lack in asking the separate possession is concerned, it may be held that the suit of the petitioners is for the declaration, about their right of inheritance in the property and also for the joint possession. Obviously, if they are declared to be the co-sharers of the property, they get Hisadari possession and therefore, the omission in this behalf, shall not bring the case of the petitioners within the mischief of the proviso to Section 42 of the Specific Relief Act. Resultantly, the findings of the Courts below particularly, the trial Court, that the suit is incompetent cannot be upheld.
The nutshell of the above discussion is, that the decree dated 7.12.1937, was not the customary decree, rather based upon an agreement between Lal etc. & Fateh Khatoon, which was arrived at, out of their free will, containing a super added command of the Court; the said decree was never challenged by Mst. Fateh Khatoon or any other person deriving any subsequent title from her and therefore, has become final; the said decree was given due effect in the revenue record and the possession of Lal, etc. was recognized under the decree; the said decree when considered in the subsequent litigation, about the reversionary rights of Lal, etc. against Mst. Fateh Khatoon and the contesting respondents, was affirmed in the manner as stated in the preceding paragraphs, and despite having abated by the operation of law, it is, however, clear from the decree that 2/3rd share was severed from the limited ownership of Fateh Khatoon and was given in the absolute ownership of Lal, etc. and was never a customary decree.
In the light of above, by setting aside the impugned judgments and the decrees, the suit of the petitioners is allowed that only to the extent of 1/12th share of 1/3rd share of the deceased Fateh Sher's estate, as this is the share, which they shall be entitled to inherit, as being the legal heir of Fateh Sher, whereas, 1/4th shall go to Mst. Fateh Khatoon, while remaining 2/3 to Mst. Gullan and Mst. Chungi. And if the sales made in favour of the contesting respondents falls within the limits of 1/4th share of Fateh Khatoon, such sales shall be protected and be valid. However, to the extent of 2/3rd share of Ghulla, etc, it cannot be declared invalid in the present suit, because they have never come forward to challenge the said sales regarding enforcement of their rights and their share cannot be given to the petitioners. Therefore, as mentioned earlier, the suit of the petitioners shall be decreed to the extent of 1/12 of 1/3, which Mst. Fateh Khatoon has retained as limited owner of the property with the relief granted to the petitioners about the joint possession of such sharer.
As regards CR No. 3044 of 2004, and FAO No. 264 of 2004, as also FAO No. 330 of 2004, are concerned, these have been filed by the petitioners therein, for seeking the enforcement of the compromise, allegedly entered into between some of the parties, which has not given effect by the lower appellate Court. I find that in the light of the decision made in the noted petition i.e. CR No. 2547 of 2004, the said revision petition as also the eappeals, have become infructuous, and therefore, the same are accordingly disposed of.
(A.A.) Order Accordingly.
PLJ 2006 Lahore 291 [Multan Bench Multan]
Present: Muhammad Nawaz Bhatti, J.
MUHAMMAD HAYYAT (deceased) through Legal Representatives and others--Petitioners
versus
MEMBER BOARD OF REVENUE, PUNJAB, LAHORE and 3 others--Respondents
W.P. No. 352 of 1994, decided on 6.4.2005.
Thal Development Act, 1949--
----Preamble--Thal Development Authority Colonies (Appeal & Revision) Rules 1973, Rr. 3 & 4--Review of predecessor's order by Commissioner--Commissioner has no power/jurisdiction to review order passed by his predecessor--Initially petitioners lot was cancelled due to non-payment of instalement in time--Appeal filed by petitioners predecessor was accepted by commissioner whereby lot cancelled from the name of predecessor of petitioners was restored and full proprietary rights were conferred on them after payment of remaining instalment--Successor Commissioner order in review cancelling allotment was not warranted as he had no power/jurisdiction to review order of restoration of allotment either under Act of 1949 or the Rules of 1973--Order of Commissioner cancelling lot of petitioners who had purchased the same from original allottees after conferment of proprietary rights was not warranted by law and the same was set aside. [Pp. 296 & 207] A & B
PLD 1981 SC 94; 1993 CLC 589; 2004 MLD 1685; 1994 Law Notes 147; PLD 1974 SC 180; PLD 2001 Lahore 668; 2004 SCMR 1551; 2004 CLC 1985; 2004 CLC 1545 and PLD 2004 Karachi 555, ref.
Ch. Abdul Sattar Goraya, Advocate for Petitioners.
Mr. M.R. Khalid Malik, Addl. A.G. for Respondents.
Date of hearing: 9.3.2005.
Judgment
This writ petition is directed against the orders dated 31.3.1976 passed by Respondents Nos. 2 & 3, order dated 7.6.1976 of Respondent No. 4 order dated 30.8.1988 of Respondent No. 2 and orders dated 9.5.1990 and 19.12.1993 passed by Respondent No. 1 whereby the petitioners were deprived of the lot sold to them by the original purchasers on the ground that the original purchasers had no right to sell the land.
The facts giving rise to the instant writ petition are that Lot No. 19 comprising rectangle No. 54/58 Killa Nos. 1 to 5, rectangle No. 57/61, rectangle No. 55/59 Killa No. 112, and rectangle No. 56/60, an area measuring about 184 kanals situated in Chak No. 495/TDA, was originally purchased by Noor Muhammad and Karam Din sons of Nikka under fixed price scheme framed under Section 30(2) of the Thal Development Act, 1949. The sale took place on 29.6.1960. Possession was also given on 29.6.1960.
According to the statement of conditions the Thal Development Authority undertook vide Condition No. 12, that the authority will supply source of water and level the land which was admittedly consisted of big sand dunes. Subsequently TDA resiled from its commitment and did not level the land, although it accepted a major portion of the amount with the result that practically it become beyond the reach of the purchasers to make payment of instalment. A protest from the public sector was lodged to the then Chairman, Thal Development Authority who issued administrative instruction and imposing new condition allowed rebate of Rs. 12/- per cent to the purchasers.
Instead of implementing those instructions and calling upon the purchasers, to make payment, Respondent No. 3 on 31.3.1976 passed ex parte resumption order which was assailed in appeal by the original purchasers on 3.5.1976 before Respondent No. 4 who vide his order dated 27.7.1976 allowed the appeal directing that last instalment shall be paid by the purchaser by 15.1.1977. The entire payment of the land in dispute was paid by the purchasers as detailed below:--
First instalment of Rs. 1437.08 was paid on 9.6.1969 vide Challan No. 196 in the Habib Bank Limited, Bhakkar.
Second instalment of Rs. 2901.65 was paid on 9.6.1964 vide Challan No. 9664 in the Habib Bank Limited, Bhakkar.
Third instalment of Rs. 1391.72 was paid on 8.6.1965 in the Habib Bank Limited, Bhakkar vide Challan No. 2301.
Fourth instalment of Rs. 3000/- was paid on 7.7.1992 in the National Bank of Pakistan, Layyah.
Fifth instalment of Rs. 5000/- was paid on 10.8.1973 in the National Bank of Pakistan, Layyah.
Sixth instalment of Rs. 3000/- was paid on 16.7.1976 in the National Bank of Pakistan, Layyah.
Seventh instalment of Rs. 1582.01 was paid on 31.5.1977 in the National Bank of Pakistan, Layyah.
Since the land was banjar Qadeem, it became beyond the reach of the purchasers to make payment, in time. The last instalment was, however, paid on 31.5.1977. Respondent No. 4 had dealt with the case on executive side on 7.6.1976 and dismissed the appeal of the petitioners.
The original purchasers on 3.3.1983 moved an application before Respondent No. 2 seeking condonation of default of late deposit which was allowed. Respondent No. 2 on 12.4.1983 addressed a Robcar in the name of EACO Layyah to restore the lot in favour of the purchasers. After depositing the entire sale price, in the treasury, conveyance deed in favour of the purchasers was issued which was registered with the Sub-Registrar on 10.10.1986. In pursuance of conveyance deed, necessary Mutation No. 45 dated 22.6.1988 was sanctioned in favour of the original purchasers who sold the land to the petitioners through a Mutation No. 39 dated 24.8.1986.
Respondent No. 2 sent a detailed list of the cases which included the case of the petitioners, seeking permission to review the orders passed by his predecessor Commissioner, to the Board of Revenue, although during the pendency of exercise and lapse of time, the Member (Colonies) Board of Revenue, on 4.12.1985 had issued administrative instructions to rectify the breach in such like cases including the case of the petitioners. The Member (Colonies) Board of Revenue vide his Memo No. 295-88/650/T dated 8.3.1988 allowed Respondent No. 2 to review the orders of his predecessor Commissioner on the analogy of Section 163 of the West Pakistan Land Revenue Act.
Respondent No. 2 vide his order dated 30.8.1998 reviewed the order dated 12.4.1983 of his predecessor holding it to be a fraudulent transaction. Order dated 30.8.1988 passed by Commissioner D.G. Khan Division was challenged through ROR No. 1737/1988 which was dismissed by Member Board of Revenue(C) on 9.5.1990 by placing the case of the petitioners in category III. Order dated 9.5.1990 was assailed in Review Petition No. 36-93 before Respondent No. 1 who vide his order dated 19.12.93 dismissed the petition with the observation that the original purchasers had no right to sell the land which was cancelled from their names. Hence this writ petition.
It is contended by learned counsel for the petitioners that the impugned orders passed by Respondents Nos. 1 to 4 are uncalled for and unwarranted by law having been passed in an arbitrary and summary manner, that there is no provision either in the Thal Development Act, 1949 or in the Thal Development Authority (Colonization) (Appeal & Revision) Rules, 1973 framed under Section 50(1) (xix) of the Thal Development Act, 1949, which empowers Respondent No. 2 or for that purpose the Member Board of Revenue to review the order passed by the predecessor officer. This point was specifically urged before Respondent No. 1 who neither adverted to this aspect of the case nor findings have been given thereon which renders the impugned orders to be clearly without jurisdiction and without lawful authority. Reliance in this behalf is placed on Muzaffar Ali vs. Muhammad Shafi (PLD 1981 SC 94), Province of Punjab through Collector, District Khushab and 2 others vs. Malik Ghulam Qasim (1993 CLC 589), Muhammad Hussain vs. Member, Board of Revenue (Colonies) Punjab, Lahore (2004 MLD 1685) and Mst. Bakhat Bibi etc. vs. MBR etc. (1984 Law Notes (Multan) 147; that Respondent No. 1 while passing the impugned order has gone by the only consideration that Noor Muhammad etc. the original purchasers could not possibly sell the land which was cancelled from their names. The sale-deed was executed by the Collector in favour of the original purchasers on 6.12.1986 and it was thereafter that the petitioners purchased the disputed lot and, therefore, there was no sale at all in favour of the petitioners before the conferment of proprietary rights; and Respondent No. 1 had no powers to rescind the sale-deed; that the Member Board of Revenue issued curative instructions to rectify the breach. After issuance of the administrative instructions, the finality of the Commissioner order if any stood destroyed and there was no justification available with Respondents Nos. 1 & 2 to re-open the past and closed transaction. Reliance in this behalf is placed on Commissioner of Sales Tax (West) Karachi vs. Messers Kruddsons Ltd. (PLD 1974 SC 180); that it was the Thal Development Authority itself who committed breach of condition by not levelling the land and supply the source of irrigation, as such the petitioners alone could not be blamed for making default which was rectifiable in nature and that the Member (Colonies), Board of Revenue vide his order dated 9.5.1990 recorded a non-speaking findings while preparing a summary of cases and placing the case of the petitioners in category No. III. The findings are general in nature. This, in fact, is a mechanical order passed on whims and conjectures by laying unwarranted emphasis on the conduct of the original purchases.
On the other hand, the learned Additional Advocate-General has supported the impugned orders and submitted that Noor Muhammad and Karam Din sons of Nikka were bona fide purchasers of land in dispute, which was resumed on 3.3.1976 and their appeal against the said order was allowed by the Commissioner Multan Division condition all on 27.7.1976 that purchase price was to be deposited on or before 15.1.1977. The appeal was presented again before the Commissioner, Multan Division as no proof of deposit of amount was given, so the appeal was dismissed and the land in dispute was resumed in favour of State on 7.6.1977. This order dated 7.6.1977 was never challenged by the allottees or petitioners. They in connivance with the field staff got the lost restored on 12.4.1983 while concealing order of resumption dated 7.6.1977. The order dated 12.4.1983 as well as the order of proprietary rights were set aside by the Commissioner D.G. Khan on 30.8.1988. This order of Commissioner was never challenged by bona fide purchasers Noor Muhammad and Karam Din but the same was challenged by the petitioners before the Member Board of Revenue in Revision as well as in review. Their revision was dismissed on 9.5.1990 and their review petition was dismissed on 19.12.1993 by MBR against which present writ petition has been filed by the petitioners without having locus standi. It is further submitted that this writ petition is not maintainable as held in Mst. Shah Sultan vs. Chief Commissioner etc. (2004 CLC 145 Lahore); that the order of restoration dated 12.8.1983 was procured by the petitioners through concealment of facts/concealment of original resumption order dated 7.6.1977, so the writ petition is not maintainable. Reliance in this behalf is placed on Dilawar Hussain etc. vs. DCO Okara (2004 CLC 324 LHR). It is also submitted that the revenue authorities i.e. Commissioner and MBR concurrently decided against the petitioners Vide orders dated 30.8.1988, 9.5.1990 and 19.12.1993 so the writ petition is liable to be dismissed as laid down in the following citations:
Faisal Afzal Sheikh vs. ADJ etc. (PLD 2004 LHR 668);
M. Munir vs. Hafiz M. Rafique (2004 SCMR 1551);
M. Shamim vs. Mrs. Raheel etc. (2004 CLC 1985);
Mirza Shahid Baig vs. Mst. Lubna Riaz (2004 CLC 1545); and
Malik Abdul Qadir vs. Atteeq Ahmad (PLD 2004 Karachi 555).
I have heard learned counsel for the petitioners as well as the learned Additional Advocate-General and gone through the record.
The disputed land was originally purchased by Noor Muhammad and Karam Din sons of Nikka. As the Thal Development Authority resiled from its commitment and did not level the land, they did not make payment of instalment. On 31.3.1976 Respondent No. 3 Extra Assistant Colonization Officer, Layyah, passed resumption order, which was assailed by the original purchasers in appeal before Respondent No. 4, Commissioner Multan Division Multan who vide order dated 27.7.1976 allowed the appeal on the condition that last instalment be paid by 15.1.1977. As the last instalment was paid on 31.5.1977 instead of 15.1.1977, Respondent No. 4 Commissioner Multan Division Multan, dismissed the appeal of the original purchasers vide his order dated 7.6.1977. On 3.3.1983 the original purchasers moved an application before Respondent No. 2 Commissioner D.G. Khan Division D.G. Khan seeking condonation of default of late deposit. Respondent No. 2 allowed the said application and issued a Robkar on 12.4.1983 in the name of EACO Layyah/Respondent No. 3 to restore the lot in favour of the original purchasers. After the restoration of the lot the petitioners purchased the land is dispute from the original purchase with the permission of the District Collector Layyah dated 15.7.1986. Mutation No. 39 was sanctioned in favour of petitioners on 24.8.1986. Conveyance deed in favour of petitioners was thereafter also executed by the TDA on 6.12.1986 and they became full owners of the land in dispute.
Respondent No. 2 sent a detailed list of the case which included the case of the petitioners, seeking permission to review the orders passed by his predecessor Commissioner, to the Board of Revenue and the Member (Colonies) Board of Revenue vide his memo No. 295-88/650 dated 8.3.1988 allowed Respondent No. 2 to review the orders of his predecessor Commissioner on the analogy of Section 163 of West Pakistan Land Revenue Act. Respondent No. 2 vide his order dated 30.8.1988 reviewed the order dated 12.4.1983 of his predecessor officer, holding it to be a fraudulent transaction. Against the said order, the petitioners, filed ROR No. 1737-88, which was dismissed by the Member (Colonies) Board of Revenue, Lahore vide order dated 9.5.1990 by placing the case of the petitioners in category No. III. Order dated 9.5.1990 was assailed in Review Petition No. 36-93 before Respondent No. 1 who vide his order dated 19.12.1993 dismissed the petition with the observation that the original purchasers had no right to sell the land which was cancelled from their names.
There is no provision either in the Thal Development Act, 1949 or in the Thal Development Authority (Colonies) (Appeal & Revision) Rules, 1973 framed under Section 50(1) (xix) of the Thal Development Act, 1949, which empowers Respondent No. 2 or for that purpose the Member Board of Revenue to review the order passed by the predecessor officer. In support of this proposition, reliance is placed on Muhammad Hussain vs. Member, Board of Revenue (Colonies) Punjab, Lahore (2004 MLD 1685). So Respondent No. 2 had no authority to review the order of his predecessor dated 12.4.1983. Respondent No. 2 allowed the application of the original purchasers and condoned the default of late deposit vide his order dated 12.4.1983. He also issued a robkar in the name of EACO Layyah to restore the lot in their favour. The learned Member Board of Revenue issued administrative instructions to Respondent No. 2 to review the said order passed by his predecessor officer. Respondent No. 2 reviewed the same. After the issuance of the administrative instructions, the finality of the Commissioner's order stood destroyed as Respondents Nos. 1 & 2 had no jurisdiction to re-open the past and closed transaction. In this respect Reliance is placed on Commissioner of Sales Tax (West) Karachi vs. Messers Kruddsons Ltd. (PLD 1974 SC 180). The appeal before Respondent No. 4 was filed by the original purchasers and application to condone the fault was also filed by them before the Commissioner D.G. Khan who directed Respondent No. 3 to confer proprietary rights which were conferred upon the original purchasers and it was thereafter that the sale had taken place in favour of the petitioners. Therefore, the petitioners are bona fide purchasers and Respondent No. 1 had no jurisdiction to direct Respondent No. 2 to rescind the sale-deed. Even otherwise Respondent No. 3 passed an ex parte order while making resumption of the land as the original purchasers were neither heard nor served. After the restoration of the lot in dispute, the proprietary rights were conferred upon the petitioners and as they had become full owners of the land in dispute, so they had challenged the order dated 30.8.1988 passed by the Commissioner D.G. Khan because the actual aggrieved party were the petitioners and not the original purchasers.
For the foregoing reasons, this writ petition is accepted and the impugned orders are set aside. Parties are left to bear their own costs.
(A.A.) Petition accepted.
PLJ 2006 Lahore 297 [Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
Syed MUHAMMAD NAWAZ SHAH--Petitioner
versus
DISTRICT RETURNING OFFICER, D.G. KHAN and others--Respondents
Writ Petition No. 5114 of 2005, heard on 21.10.2005.
Punjab Local Government Ordinance, 2001 (XIII of 2001)--
----S. 152(e)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Election of Nazim and Naib Nazim disqualification--Sanad from religious institution--Equivalent to matriculation certificate--Question of--Contested election on basis of Sanad knew as Shahadat-ul-Sanvia issued by institutions not recognized without having passed additional subjects of English, Urdu and Pak Studies and further without obtaining equivalence certificate from Inter Board Committee of Chairman, thus they were disqualified from contesting that election--Held: They are not entitled to hold elective offices--Petitions accepted and nomination papers of contesting respondents rejected. [P. 302] A
Mirza Manzoor Ahmed, Advocate for Petitioner.
Ch. Abdul Sattar Goraya, Advocate for Respondent No. 3.
Date of hearing : 21.10.2005.
Judgment
Since similar questions of law and facts are involved, hence through this single Judgment, I proposed to dispose of following three Writ Petitions:--
(i) W.P. No. 5114 of 2005.
(ii) W.P. No. 5101 of 2005.
(iii) W.P. No. 5115 of 2005.
The petitioners in all these writ petitions are unsuccessful candidates for the seat of Nazim and Naib Nazim of their respective Union Councils. In Writ Petition No. 5114 of 2005, the matter relates to Union Council No. 38-Fateh Khan Nutkani, Tehsil Taunsa Sharif, District Dera Ghazi Khan, Writ Petition No. 5101 of 2005 and Writ Petition No. 5115 of 2005 relate to Union Council No. 8-Multan and Union Council No. 39-Tibbi Qaisarani, Tehsil Taunsa Sharif District Dera Ghazi Khan, respectively.
The grievance of the petitioners in Writ Petition No. 5114 of 2005 is that as Respondents Nos. 3 and 4, in Writ Petition No. 5101 of 2005 Respondents Nos. 4 and 5 and in Writ Petition No. 5115 of 2005 Respondents Nos. 3 and 3-A, contested the election of Nazim and Naib Nazim of their respective Union Councils, they were disqualified from contesting that election on the ground that either of said respondents in each writ petition, was not holding requisite educational qualification within the meaning of Section 152(e) of Punjab Local Government Ordinance, 2001, hence their election for said offices as elective officers is liable to be declared as without lawful authority and of no legal effect.
The cause for seeking said respondents' disqualification, as alleged in respective writ petition is that in terms of Section 152(e) of Punjab Local Government Ordinance, 2001, the candidates of both the offices of Nazim and Naib Nazim must have academic qualification of not less than Matriculation or Secondary School Certificate or equivalence from a recognized Institution. But, since either of the two contesting respondents in each Writ Petition, was not holding the said requisite educational qualification of Matriculation, Secondary School Certificate or equivalence from any recognized Institution, rather are laying foundation of their qualification on the basis of SANADs known as "Shahadat ul Sanvia" issued by private religious Institutions, without having passed three subjects of English, Urdu and Pakistan Studies at Secondary School level i.e. Board of Intermediate & Secondary Education of Pakistan, coupled with a Certificate of equivalence issued by Inter Board Committee of Chairman, hence, their Nomination Papers were liable to be rejected. In support of these writ petitions, reliance has been placed on judgments delivered by this Court in "Muhammad Younas Iqbal and another versus District Returning Officer, Gujranwala and nine others" (PLD 2005 Lahore 695) and judgment of the Apex Court dated 16.8.2005 passed in "Sanaullah Khan and another versus District Returning Officer, Mianwali and others" (PLD 2005 S.C 858) and also passed in C.P. No. 1673-L/2005 in Muhammad Nadim's case on 24.8.2005 and in the case of "Abdul Khaliq and another versus Maulvi Noor Muhammad and others" (PLD 2005 S.C. 962).
Earlier, all these writ petitions were allowed by this Court vide order dated 25.8.2005 and the election of contesting respondents was declared as without lawful authority and of no legal effect however, the above-mentioned contesting respondents filed I.C.As and the learned Division Bench of this Court was pleased to remand these cases for decision afresh after affording opportunity of hearing to them, as according to the said learned Division Bench, earlier order had been passed either in the absence of contesting respondents or without any notice to them. These writ petitions have now been heard in the presence of learned counsels representing the petitioners as well as the contesting respondents in each writ petition.
At the very outset, learned counsel appearing on behalf of the contesting respondents have raised a preliminary objection with regard to the maintainability of these writ petitions on the ground that as the petitioners have got an alternate remedy by way of approaching the Election Tribunals constituted under Rule 67 of the Punjab Local Government Election Rules, 2005 and since the election disputes including pre-election disqualification of candidates can be decided and determined by the respective Election Tribunals, hence these Constitutional Petitions were no more maintainable. Reliance has been placed on the case "Ch. Nazir Ahmed and others versus Chief Election Commissioner and 4 others" (PLD 2002 S.C. 184) and "Muhammad Shavez Khan versus District Returning Officer, Attock and another" (2002 CLC 342).
On the other hand, learned counsel for the petitioners by placing reliance on the case "Dilawar Jan versus Gul Rehman and 5 others" (PLD 2001 SC 149) and "Government of Punjab through Collector, Faisalabad and another versus Hudabia Textile Mills, Faisalabad through Chairman and 4 others" (2001 SCMR 209), have argued that where the action/order impugned in the writ petition, suffers from jurisdictional defect or violates any provision of law and if the error is so glaring and patent that same may not be acceptable, invocation of constitutional jurisdiction is justified and this Court has got the jurisdiction to interfere in such like matters.
Before deciding this objection, I would like to dilate upon the main controversy with regard to qualification/disqualification of contesting respondents.
The question whether a person holding mereby a SANAD from some religious Institution, without passing three subjects of English, Urdu and Pakistan Studies and obtaining equivalence Certificate from Inter Board Committee of Chairman, could become a candidate, firstly arose on account of criteria laid down by Inter Board Committee of Chairman for such purpose vide memo No. IBCC/ES/MISC/1219 dated 21 July, 2005 which reads as under :--
"Subject EQUIVALENCE OF MATRICULATION OR SECONDARY SCHOOL CERTIFICATE FROM RECOGNIZED INSTITUTIONS:--
Kindly refer to your letter No. F3(4)/2005-Elec. dated 21.7.2005 on the above subject. Inter Board Committee of Chairman considers the following certificates of local and foreign educational qualifications equivalent to Secondary School Certificate issued by any Board of Intermediate and Secondary Education in Pakistan:--
(i) Grade-1 from any recognized/accredited school/college in USA.
(ii) O Levels in five subjects UK including subject of English from any recognized institution located outside Pakistan.
(iii) O Levels in seven subjects including the compulsory Subjects of English, Urdu, Pakistan Studies and Islamiat.
(iv) Shahadat ul Sanvia from any recognized institution/Wafaq located in Pakistan subject to passing the subjects of English, Urdu and Pakistan Studies at SSC level, from any BISE of Pakistan."
In terms of above mentioned memo any sand i.e. Shahadat ul Sanvia issued by any recognized Institution/Wafaq located in Pakistan can only be considered as equivalent to Matriculation certificate unless the holder of such a SANAD has passed the subjects of English, Urdu and Pakistan Studies at Secondary School level from any Board of Intermediate and Secondary Education in Pakistan and unless the Inter Board Committee grants equivalence Certificate, no educational certificate can be considered as Matriculation Certificate regardless of the claim of the private Institutions or Foreign Institutions or any Organization, which might be running that Institutions.
Following the above memo of Inter Board Committee of Chairman of Board of Intermediate and Secondary Education, while deciding W.P. No. 14075/2005 titled "Muhammad Younas and another versus D.R.O., etc" the worthy Chief Justice of this Court held as under:--
"Where an equivalence certificate is granted for a limited purpose, that certificate can be utilized by the person, possessing that certificate, for that purpose only and not for any other purpose. Equivalence denotes and means hundred per cent parity and equality in every sense. A limited, partial or substantial parity with the official Matriculation Certificate, cannot be treated as making a person eligible under Section 152(1)(e). Rather, the very concept that a certificate, which is not hundred per cent at par or equivalent to the Matriculation Certificate, should be treated as such, is a preposterous and unacceptable. Such a certificate therefore, would not make a candidate eligible under Section 152(1)(e), of the Punjab Local Government Ordinance, 2001 to contest election for an office of a Local Government.
The legislative provisions relating to qualification or eligibility of a particular candidate for the office of Nazim and/or Naib Nazim have to be construed strictly. Relaxation of criteria is not envisage by the law, because relaxing the criteria, would defeat the very purpose of the scheme of devolution of power, which is being enforced through the Ordinance and compromise in this contest is not permissible and no concession can be given to any candidate on any other considerations. A candidate must be matriculate in terms of provisions of Section 152 (1)(e) of the Ordinance to be eligible to contest the election. Sans Matriculation Certificate or a certificate, which has been declared to be at part in all respects, with the Matriculation or Secondary School Certificate, a candidate is ineligible to contest the election and cannot be permitted to take part in the election process.
In the case in hand, the petitioner Muhammad Asghar had relied upon a Sanad of a private institution, claiming the same to be certificate of Matriculation. His nomination papers were rejected on the ground that the candidate had failed to produce equivalence certificate to be issued by the Inter Board Committee of Chairman. Even in these proceedings, petitioners were afforded an opportunity to obtain certificate of equivalence from the Inter Board Committee of Chairman Despite availing of opportunity, petitioners were unable to produce the requisite certificate. As Petitioner No. 2 was not in possession of Matriculation or Secondary School Certificate, he could not claim himself to be qualified to be elected to an office of local Government."
The said judgment is now reported in PLD 2005 Lahore 695.
Similar question also came under consideration before the Apex Court of Pakistan in the cases cited in para-3 above, and the Hon'ble Supreme Court of Pakistan after surveying the entire law on the subject, held that where a candidate was holding SANAD issued by Deeni Madaris having not been approved/recognized by U.G.C./H.E.C. or he has not passed examination in additional subjects of English, Urdu and Pakistan Studies from any recognized Institution by the Government nor has obtained equivalence Certificate, was not qualified to contest the election of either Nazim or Naib Nazim. In view of the above mentioned law declared by the Hon'ble Supreme Court, there is no doubt left with regard to disqualification of contesting respondents in each writ petition, because either of two respondents in each petition, is carrying SANAD issued by different religious Institutions, neither recognized by U.G.C./H.E.C. nor they qualified in said three additional subjects and also is not in possession of equivalence Certificate from Inter Board Committee of Chairman, therefore, disqualification of both the contesting respondents in each writ petition is not only patent and glaring but is also floating on the surface, requiring no factual inquiry by the Election Tribunal, therefore, the objection raised by the learned counsel for the contesting respondents about maintainability of these Constitutional Petitions, is repelled.
Respectfully following the law declared by the Apex Court as well as this court in the above referred judgments, I have no hesitation to hold that since either of the two contesting respondents in each of these writ petitions, contested the election of Nazim or Naib Nazim of their respective Union Councils on the basis of SANAD known as Shahadat-ul-Sanvia issued by institutions not recognized by U.G.C./H.E.C.; without having passed additional subjects of English, Urdu and Pak Studies and further without obtaining an equivalence Certificate from Inter Board Committee of Chairman, thus they were disqualified from contesting the said election and are also not entitled to hold the said elective offices. Resultantly, all these Constitutional Petitions (W.P.No. 5114/2005), W.P. No. 5101/2005 as well as W.P. No. 5115/2005) are accepted and the Nomination Papers of contesting respondents in each petition, for the election of Nazim and Naib Nazim of their respective Union Councils are rejected, as such their election for the said offices is declared as without lawful authority and of no legal effect.
All these three matters are however, referred to the worthy Chief Elections Commissioner of Pakistan, who is also sitting Judge of the Hon'ble Supreme Court of Pakistan, in terms of Section 152(2) read with Section 161 of the Punjab Local Government Ordinance, 2001 for passing appropriate orders on all these references.
(A.S.) Petitions accepted.
PLJ 2006 Lahore 302
Present: Muhammad Khalid Alvi, J.
Hafiz ALTAF AHMED--Appellant
versus
Haji AHMED DIN--Respondent
Second Appeal Order No. 64 of 2005, heard on 4.7.2005.
Punjab Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(3)--Eviction of tenant--Personal need--Held: First agreement between parties containing condition that no eviction would be claimed on personal need had been terminated--Such condition was not included in subsequent agreements--Even otherwise such condition being contrary to the Rent Restriction Ordinance, could not be termed as a legal condition--Eviction order maintained. [P. 305] A
Punjab Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(3)(a)(ii)--Proviso--Eviction of tenant--Tenancy for specified period--Held: According to the proviso to S. 13(3)(a)(ii) restriction imposed upon landlord was only for the specified period agreed upon between the parties--After the lapse of such agreement landlord would be relieved of such like condition. [P. 306] B
Punjab Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(3)--Eviction of tenant--Personal need--Held: Continuation of terms of an agreement although expired would be permissible in rent cases provided same was not inconsistent with the Rent Restriction Ordinance itself. [P. 306] C
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Punjab Urban Rent Restriction Ordinance, 1959, S. 13----Eviction of tenant--Suit for specific performance of agreement--Held: Ejectment petition by landlord and a suit for specific performance by tenant were two distinct proceedings--Effect of ejectment order could not be diluted by mere pendency of a civil suit on basis of agreement to sell--Ejectment order was necessarily required in letter and spirit, however the tenant if succeeds in his suit, could get possession restored through execution of his decree. [P. 308] D
1988 CLC 402; PLD 1988 SC 190; PLD 1993 Lah. 97; 2000 CLC 1484; PLD 1991 SC 242 and 1991 SCMR 850 ref.
Ch. Imdad Ali Khan, Advocate for Appellant.
Mr. M. Naeem Sadiq, Advocate for Respondent.
Date of hearing: 4.7.2005.
Judgment
With the concurrence of learned counsel for the parties this case is being treated as Pacca Case.
Brief facts of the case are that the property in dispute was obtained by the father of the appellant on rent from the respondent for the first time through agreement dated 12.10.1986. Inter alia among the other conditions one condition was that the property in question shall not be got vacated from the appellant by the respondent's predecessor-in-interest or his legal heirs on the ground of personal need. This agreement was for a period of 11 months. After the death of the predecessor-in-interest of the respondent the tenancy continued with the respondent and various agreements/Rent Deeds were executed between the parties but the above-referred condition was not mentioned in any of the latter agreements/Rent Deeds. On 13.11.2000, a Rent Deed was executed on behalf of the appellant, the same was signed by the respondent but was refused to be signed by the appellant on the ground that above-referred condition is not incorporated in the same, therefore, he would not sign the same. In this background of the facts the present ejectment petition was filed by the respondent on 13.12.2000. The same was contested by the appellant. After recording evidence of the parties, the learned trial Court vide order dated 8.2.2005, directed the eviction of the appellant. This order was assailed by the appellant through an appeal, which too was dismissed vide order dated 18.5.2005, hence this second appeal.
It is contended by the learned counsel for the appellant that despite expiry of the first agreement dated 12.10.1986, its conditions would continue in force till the tenancy exists between the parties and its effect will also be binding upon the legal heirs of the parties. He has also referred the Clause 2 of the first agreement to contend that the agreement as it is was extendable beyond a period of 11 months, therefore, the conditions of the said agreement were automatically being followed by the parties with mutual consent. Reliance is placed on PLD 1988 SC 190 (Mrs. Zarina Khawaja versus Agha Mahboob Shah).
It is further contended with reference to Section 13(3)(a)(ii) First Proviso that in view of this proviso read with condition No. 10 of the first rent note Exh. A/II the appellant could never be sought to be ejected on the ground of personal need, particularly, in view of Clause 2 of A/II and Clause 3 in Exh. A/II to A/VII that the tenancy of one year was agreed to be made renewable. It is next argued that respondent had admittedly signed the last agreement dated 13.11.2000, which also contained the condition of its further extendibility, therefore filing of the ejectment petition just after one month on 11.12.2000 speaks volumes about bona fide and good faith of the respondent's cause of personal need.
It is further argued that on refusal of the appellant to sign last agreement dated 13.11.2000 the respondent had entered into an agreement to sell the property in question to the appellant on 23.11.2000 on the basis of which the appellant has already filed a suit for specific performance on 22.5.2001 against the respondent which is pending adjudication. The said sale agreement also stands established through the statements of PWs 3 & 4 to which there is no rebuttal. With reference to PLD 1993 Lahore 97 (Dr. Arslan Razzaq versus Ali Hussain), 1988 CLC 402 (Sardar Muhammad Anwar Khan versus Mian Asghar Ali), 2000 CLC 1684 (Miss Shazia Umar Choudhry versus Board of Intermediate and Secondary Education, Faisalabad through Chairman and 2 others) and 1991 SCMR 850 (Aleem-ud-Din and another versus Muhammad Aslam and 2 others) it is contended that, firstly, both the cases i.e. ejectment petition and suit for specific performance should have been consolidated or should have been tried simultaneously or as a last resort the execution of ejectment order be stayed till the final decision of the suit for specific performance.
On the other hand, learned counsel for the respondent contends that personal need, its basis, bona fide, and good faith were stated by the respondent in the affidavit of Haji Ahmad Din respondent. These facts were not challenged by way of cross-examination.
With reference to PLD 1991 SC 242 (Iqbal and 6 others versus Mst. Rabia Bibi and another) it is contended that pendency of a civil suit is no ground either to stay the proceedings or execution of an order of ejectment.
It is further argued that since the respondent has categorically denied the execution of the sale agreement and suit to that effect filed by the appellant is pending, therefore, its genuineness or otherwise cannot be determined in these proceedings.
I have considered the arguments of the learned counsel for the parties.
Although, the first agreement dated 12.10.1986 executed by the predecessor-in-interest of the respondent in favour of the appellant does contain the condition that the property in question shall not be got vacated either by him or by his legal heirs on the ground of personal need, but this agreement stood terminated after the expiry of 11 months from the date of its execution. Thereafter numerous agreements were executed by the parties in continuation of the tenancy but none contained the above-referred disputed condition. Meaning thereby that the said condition ceased to exist between the parties. Even otherwise, such a condition which by itself is inherently against the provisions of Rent Restriction Ordinance which gives a right to the Landlord to seek eviction on the ground of personal need cannot be termed to be a legal condition. Even if by mutual consent such a condition was agreed upon the same cannot have perpetual effect depriving the landlord from seeking eviction on the ground of personal need if at a latter point of time such a need accrues. In particular when in the subsequent agreements the said condition was also not mutually agreed.
Protection sought by the learned counsel for the appellant under first proviso to Section 13(3)(a)(ii) of the Rent Restriction Ordinance is also not available to him. The said provision is reproduced for ready reference:
"Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this sub-section before the expiry of such period."
Bare perusal of the above provision indicates that restriction imposed upon the landlord in the said provision is only for the specified period agreed upon between the parties. In the instant case the first agreement was executed on 12.10.1986 for a period of 11 months only. After the lapse of 11 months the landlord was relieved of the said condition.
Admittedly, the respondent got executed a Rent Agreement dated 13.11.2000 on behalf of the appellant which he refused to sign on the ground that Condition No. 10 of first agreement dated 12.10.1986 be also incorporated in the said agreement. Respondent was well within his right to change his view and instead of allowing further extension of tenancy preferred to accommodate his son in the premises. This change is primarily because of the conduct of the appellant by way of which he wanted the respondent landlord to be bound with such condition, which is inherently contrary to law. In this view of the situation the bona fide of the landlord could not be doubted.
Coming to the case-law relied by the learned counsel for the appellant, it is to be observed that in PLD 1988 SC 190 their lordships observed as follows:
"Thus, it can safely be said that the rent laws permit all covenants in agreements, alive or expired; which, are permissible under the general law and not inconsistent with or repugnant to that special law; and enforces the same accordingly whenever it is so required under that law. In addition, they also remain operative for other purposes permitted by the general law. [p. 199] E."
It is thus evident that continuation of terms of an agreement, although expired, in rent cases is permissible provided the same are not inconsistent with the Statute itself. In the instant case, Condition No. 10 of the original agreement could not continue for two reasons; firstly, the said condition ceased to exist when subsequent Rent Deeds were executed between the parties without the said condition. Secondly, the condition by itself is inconsistent with the Statute, which provides a right to the landlord to seek eviction of a tenant on the ground of personal need.
"On the question of protection of the possession of the appellants till the decision by the Civil Court, learned counsel for the caveator did put up a spirited resistance; understandably with a view to oust the appellants before they are able to get final verdict in the hierarchy of the Civil Courts. We having made observation that the judgments impugned in this case shall be subject to the final verdict by the Civil Court, it is but natural that till the Civil Court is able to render the final decision and/or is able to control the question of possession (till the decision by that Court) the appellants should be provided limited protection till they are able to apply before the Civil Court and obtain an order thereon, interim or otherwise, granting/withholding interim relief. Accordingly in the facts of this case, in exercise of the power of this Court to do complete justice, the appellants are allowed one month's stay to seek/apply for interim relief from the Civil Court. There shall be no order as to costs."
It is evident from the observations made above by the Hon'ble Supreme Court that question of possession can only be regulated by the Civil Court seized of the matter. In PLD 1991 SC 242 the following is the observation of their lordships:
"Be that as it may, in some recent judgments this Court has taken the view that in cases like the present one, where the sale agreement or any other transaction relied upon by a tenant is seriously and bona fide disputed by the landlord, the appellant/tenant cannot be allowed to retain the possession during the litigation; where he continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation. It has been ruled that in such cases although the tenant has a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a hostile title which is denied by the landlord; but on the well-known bar of estoppel in this behalf, he (the tenant) cannot be permitted to remain in occupation and fight the litigation for long time - even for decades. In this case it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness to both sides, while the tenant is at liberty to prosecute the litigation wherein he should try to establish his claim but it should not be at the cost of landlord/owner. It should be at the cost of himself and he must vacate --- though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing his title against his own landlord. See Makhan Bano v. Haji Abdul Ghani (PLD 1984 Supreme Court 17), Allah Yar and others v. Additional District Judge and others (1984 SCMR 741) and Province of Punjab v. Mufti Abdul Ghani (PLD 1985 SC 1)."
It is evident from the above declaration of the Hon'ble Supreme Court that an ejectment petition under the Rent Laws and a suit for specific performance by a tenant are two distinct proceedings. The effect of ejectment order cannot be diluted by mere pendency of a civil suit on the basis of an agreement to sell. If an ejectment order is passed against a tenant, the same is necessarily required to be executed in letter and spirit. However, the tenant if succeeds in his litigation can get the possession restored through execution of his decree.
Scanning of the above case-law brings me to the conclusion that neither the two proceedings were required to be consolidated nor the effect of ejectment order could be diluted on the ground of pendency of a civil suit filed by the appellant.
I would deliberately abstain from commenting upon the evidence led by the appellant in support of his agreement to sell lest it might prejudice case of either side in civil suit.
For what has been stated above, I find no merit in this appeal which is accordingly dismissed.
(J.R.) Appeal dismissed.
PLJ 2006 Lahore 308
Present: Sh. Hakim Ali, J.
SHALIMAR FABRICS (PRIVATE) LTD.--Petitioner
versus
DISTRICT OFFICER REVENUE and others--Respondents
W.P. No. 4210 of 2003, decided on 18.1.2005.
(i) Constitution of Pakistan, (1973)--
----Art. 199--Petitioner's status as a Private Limited Company, assailed--Registered sale-deed in favour of petitioner showed that land was sold to petitioner as Private Limited company and thereafter, name of petitioner as a Private Limited Company was appearing in all judicial proceedings and even in revenue record also with no objection ever raised by any one and display of name of petitioner itself gives impression that appellant is a private limited company--Similar is the position of respondent company--Objection raised on behalf of respondent that petitioner was not a private limited company was over-ruled. [Pp. 312 & 313] A
(ii) Land Acquisition Act, 1894 (I of 1894)--
----S. 40--Land owned by petitioner private limited company--Such land cannot be got acquired by respondent private limited company. [P. 314] B
(iii) Land Acquisition Act, 1894 (I of 1894)--
----Ss. 4, 5 & 5-A--Constitution of Pakistan, (1973), Art. 199--Constitutional petition--Competency--Acquisition of land--No notification under S. 5, Land Acquisition Act, 1894, issued--Constitutional petition was thus, maintainable in such matter. [Pp. 314 & 315] C
(iv) Land Acquisition Act, 1894 (I of 1894)--
----Ss. 4 & 5--Constitutional petition--Maintainability--Purpose and intent of acquisition--Facts were apparent and purpose itself noted into notification of acquisition--High Court has got ample jurisdiction to decide as to whether purpose and intent of acquisition shown in notification can be held to be of public purpose or not--High Court thus, has jurisdiction to interfere in such matter--Notifications concerned issued by District Officer Revenue relating to acquisition of land of petitioner for the benefit of respondent company was declared to be illegal and unlawful. [P. 315] D
2004 YLR 1711; 2000 MLD 322; PLD 2002 SC 1079; PLD 1966 SC 639; 1991 CLC 1001; PLD 2002 SC 1079; 2002 SCMR 1652; PLD 1976 Lahore 747; NLR 2002 SCJ 755; 1991 SCMR 1881; 2001 CLC 1853; PLJ 1994 AJK 63 and 2002 CLC 1257 ref.
Mr. Muhammad Irfan Wyne, Advocate for Petitioners.
Malik Muhammad Rafique Rajwana, Advocate for Respondents.
Date of hearing: 10.12.2004.
Judgment
Preferring the background of the instant writ petition, petitioners' learned counsel has submitted that Shalimar Fabrics (Private) Limited (hereinafter referred to as the Shalimar Fabrics), the petitioners and Appolo Textile Mills (to be noted as the Appolo Textile), Respondent No. 3 had purchased through two different registered sale-deeds Bearing Nos. 538 and 537, on 2.11.1973, the Agricultural lands measuring 212 kanals 8 marlas and 196 kanals 9 marlas respectively, situated in Mauza Jasil Wain, Tehsil and District Muzaffar Garh, from Mian Ghulam Rasool and others, to establish two separate and independent industrial units as the names of both these petitioner and Respondent No. 3 depict the purpose, for which they had purchased the above noted lands. The pioneers of both these industrial private limited companies are inter se close relatives. The proprietors of the Appolo Textile got a suit for pre-emption instituted against the lands, which were purchased by the Shalimar Fabrics through registered sale-deed No. 538, in the year 1973, through Abdul Hakeem and others. The owners of the Shalimar Fabrics contested the suit for pre-emption and turned out successful as the suit was dismissed on 18.4.1990 from the Court of learned Senior Civil Judge and the appeal preferred there against was also dismissed. In this scenario of strained relations, the owners of the Appolo Textile filed application for partition against the Shalimar Fabrics, which proceedings culminated into framing of two wandas. Wanda No. 1 was allocated to the Appolo Textile while Wanda No. 2 was ear marked for Shalimar Fabrics. To give effect to this partition order, Mutation No. 1026 was also sanctioned on 10.7.1996 in the revenue record. Narrating facts further, the learned counsel for the petitioners has submitted that the owners of the Appolo Textile had always been making efforts that the owners of the Shalimar Fabrics could not set up the industry, as they thought it a rival company in the field to destroy their business. The suit for partition, the application for partition and thereafter the efforts to create obstacles/impediments in the way of the Shalimar Fabrics to get the loans from different institutions/banks and industrial promotion institutions were made by the owners of Appolo Textile. Different manners and methods adopted by the proprietors of the Appolo Textile to deprive the proprietors of the Shalimar Fabrics to get the loans from. The Industrial Development Investment Bank of Pakistan, The Investment Bank of Pakistan, The Industrial Development Finance Corporation, The Bank of Credit and Commerce International and so many other institutions were referred to by the learned counsel and delineated in the writ petition to display that the proprietors of the Appolo Textile wanted that the Shalimar Fabrics might not be able to establish the industrial concern. As in all these attempts and efforts, the proprietors of the Appolo Textile failed, so, as a last resort, they came out through publication of two notifications, Bearing Nos. 1195 and 1196 issued on 10.9.2003 under Section 4 of the Land Acquisition Act through the District Officer (Revenue) Muzaffargarh, published in the Punjab Gazette of 13th of September, 2003 with regard to the acquisition of lands of the Shalimar Fabrics to the extent of 71 kanals 5 marlas and 80 kanals, total land measuring 151 kanals and 5 marlas to be acquired. According to the learned counsel, these notifications under Section 4 of the Land Acquisition Act are, therefore, based upon mala fides and are liable to be declared illegal and unlawful on the following grounds:--
(a) Both are private limited companies, so one company cannot get acquired the lands of the other company.
(b) There was no public purpose as required by Section 4 of the Land Acquisition Act.
(c) The object and intent of acquisition was clearly mala fide and with ulterior motives. The owners of the Appolo Textile have got issued these notifications. So, in these circumstances the remedy of writ was available. He has referred to 2000 YLR 1711/1712 (Gulshan Hussain and another vs. Commissioner (Revenue), Islamabad/Deputy Commissioner, District Collector, I.C.T./Assistant Commissioner, Saddar, Islamabad and another), 2000 MLD 322-324 (Nazir Ahmad and 8 others vs. Commissioner, Lahore Division, Lahore and 3 others), PLD 2002 SC 1079-1080 (Federal Government Employees' Housing Foundation through Director-General, Islamabad and another vs. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad), PLD 1966 SC 639 (Anjuman-e-Ahmadiya, Sargodha vs. The Deputy Commissioner, Sargodha and another). Mala fide acquisition and with ulterior motive notifications can be set aside. For this proposition, learned counsel has referred to 2000 MLD 322-324 (Nazir Ahmad and 8 others vs. Commissioner, Lahore Division, Lahore and 3 others), 1991 CLC 1001 (Mst. Nasreen Zohra vs. Multan Development Authority through Director General and another).
(d) Acquisition of private land for purpose other than public purpose is not legal and such acquisition for personal benefit of particular class of employees would not be termed as for the public interest. He has referred to PLD 2002 SC 1079-1080 (Federal Government Employees' Housing Foundation through Director-General, Islamabad and another vs. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad), 2002 SCMR 1652 (Muhammad Ishaq and others vs. Government of Punjab and others), PLD 1976 Lahore 747 (Muhammad Akbar (Through Legal Representatives) and 7 others vs. The Commissioner, Rawalpindi Division and 2 others) and NLR 2002 SCJ 755-756 (Federal Government Employees Housing Foundation Through its Director-General, Islamabad and another vs. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad).
(e) It has also been stated by the learned counsel that as no remedy is provided against the notification under Section 4 of the Land Acquisition Act, therefore, this writ petition is maintainable. He has relied upon the above noted decisions for this purpose.
(f) Learned counsel has produced the maps to show that the land which is proposed to be acquired is consisting of such killa numbers so as to deprive the petitioners to establish the industrial concern. Some of the land which is being left from acquisition would become completely useless for the petitioners. This also shows the intent of the owners of the Appolo Textile as to how they intend to acquire the lands of the Shalimar Fabrics.
(g) Respondent No. 3, the Appolo Textile has got excess land, which is lying vacant to the extent of 100 kanals, which is not being used by Respondent No. 3, although it could be used by Respondent No. 3 for the purpose alleged and stated in the notification, issued under Section 4 of the Land Acquisition Act.
(a) The filing of the suit of pre-emption by Abdul Hakeem and others cannot be linked with the owners of the Appolo Textile. It was an act of other persons, namely Abdul Hakeem and others. So, filing of the suit for pre-emption cannot be attributed to their intent.
(b) The maps being shown by the writ-petitioners to prove that the land was being acquired in such a way so as to make the remaining lands of the petitioners useless cannot be brought on the record at this stage.
(c) The ground that 100 kanals of excess land is being still retained by the Appolo Textile and the notification is a mala fide move, is incorrect as the excess land of 100 kanals is being used for keeping the bales thereon.
(d) The petitioners having got alternate and efficacious remedy under Section 5-A of the Land Acquisition Act to challenge the acquisition and make objections, the writ petition is not maintainable and is liable to be dismissed. To support his contention, learned counsels have referred to 1991 SCMR 1881 (Khalid Mahmood vs. Collector of Customs, Customs House, Lahore) 2001 CLC 1853 (Zafeer Gul and 19 others vs. NWF Province through Secretary, Government of NWFP, Revenue Department and Senior Member, NWFP, Board of Revenue, Peshawar and 5 others) and PLJ 1994 AJK 63 (Muhammad Shafi vs. Collector, Land Acquisition, Mirpur and 19 others).
(e) The petitioners, the Shalimar Fabrics is not a company as no proof of its registration, etc. has been brought on the record.
(f) This Court being a Court of appeal under Section 54 of the Land Acquisition Act, cannot exercise its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. To get support of their arguments, learned counsels have referred to 2002 CLC 1257 (Mst. Razia Sultana and 2 others vs. Chairman Evacuee Trust Property Board, Lahore and 13 others). Precise contention is that if an authority has got appellate/revisional power, it cannot exercise the other powers as it cannot become a Judge twice of the same cause.
First point for consideration is as to whether the Shalimar Fabrics is a private limited company or not? The registered sale-deed dated 2.11.1973, which was executed in favour of the Shalimar Fabrics (Pvt.) Limited, Muzaffar Garh shows and thereafter this name was appearing in all the judicial proceedings and even in the revenue record also with no objection ever raised by any one and the display of name of the Shalimar Fabrics (Pvt.) Limited itself gives the impression that this is a private limited company, because the word "limited" cannot be used by any group or class of persons who have not formed a limited company. The persons, who are the Directors of that private limited company, have been noted and arrayed as petitioners in the writ petition. The same is the position of the Appolo (Pvt.) Limited. Both have not placed their memo of associations and other relevant documents to prove their being private limited company, as no objection was ever raised against each other by any one. So, I consider both these parties to be private limited companies. Therefore, this objection of the learned counsel for Respondent No. 3 is over ruled.
As regards the acquisition, the question arises as to whether a private limited company can get acquired the lands of other private limited company and whether this proposed acquisition can be termed and considered for the public purpose, as envisaged by Section 4 of the Land Acquisition Act or for the intents and purposes entered into Section 40 of the Land Acquisition Act? The notification Bearing No. 1195, dated 10.9.2003 has noted the purpose of acquisition as "extension of building for installing the new machinery and storage" while in notification Bearing No. 1196, dated 10.9.2003 the purpose of acquisition has been mentioned as "extension of building for residential quarters of labour and storage". From these words, the purpose and intent of Respondent No. 3, owners of Appolo Textile is unveiled. From this it becomes evident that they wanted to extend their present buildings for installation of new machinery, storage and residential quarters for labour. Meaning thereby the proprietors of Appolo Textile/Respondent No. 3 wanted the extension of their industrial unit and for building of residential quarters and storage. In other words, the industry is going to be expanded by them. This purpose of extension cannot be termed to be for public purpose. Extension or expansion of an already established concern, is not envisaged or covered by the provision of Section 40 of the Land Acquisition Act. Moreover, if it is considered to be a public purpose, then the same is the case and purpose of the other i.e. Shalimar Fabrics. So, by causing the death of one company, the other would not gain life as it already has. But permission to acquire certainly would cause the death of Shalimar Fabrics. It would be therefore, unjust to give priority to the Appolo Textile upon the Shalimar Fabrics.
At this juncture, I wonder as to why the extension is being sought towards the lands of the Shalimar Fabrics? Why they are trying to get the lands of the Shalimar Fabrics from their sought, when they have got sufficient opportunity to get the lands from their north? Learned counsel for the petitioners has shown me the maps of the lands proposed for acquisition by Respondent No. 3/the Appolo Textile, which if allowed, would make the remaining lands of the petitioners to be fruitless and useless. The Appolo Textile wants to acquire these lands of the Shalimar Fabrics which would strangulate the industrial concern of the Shalimar Fabrics. The extension of the Appolo Textile in such manner and with such circumstances, towards lands of the Shalimar Fabrics would prove one proverb in the words of the learned Division Bench of this Court, to rob Peter to pay to Paul, which rule was held not to be based on the injunctions of Islam vide 2000 MLD 322-324 (Nazir Ahmad and 8 others vs. Commissioner, Lahore Division, Lahore and 3 others).
Due to above noted circumstances, the proprietors of the Appolo Textile, who are at daggers drawn with the owners of the Shalimar Fabrics, cannot be allowed to cause the death of another sister industrial concern, namely, the Shalimar Fabrics, because both are sailing in the same boat. Both these industrial concerns are working for the public purpose, if considered as such, so, one cannot be given preference and superiority over the other to rob the other in such a way that the very existence of the other industrial concern might be converted into extinction. A private limited company cannot be allowed to get the land of other private limited company, as it would have the effect of destruction/annihilation of the other private limited company. In 2000 MLD 322-324 (Nazir Ahmad and 8 others vs. Commissioner, Lahore Division, Lahore and 3 others), it was clearly laid down that one cannot be enriched at the cost of other and for the purpose other than the public purpose, acquisition cannot be allowed. In 2000 YLR 1711/1712 (Gulshan Hussain and another vs. Commissioner (Revenue), Islamabad/Deputy Commissioner District Collector, I.C.T./Assistant Commissioner, Saddar, Islamabad and another), existence of public purpose was held open to judicial review. Acquisition for personal benefit of a person or class of persons was held ultra vires the others. In 1991 CLC 1001 (Mst. Nasreen Zohra vs. Multan Development Authority through Director General and another), mala fide, unjust, unfair, oppressive, in an illegal manner, with ulterior motive, acquisition was held to be illegal. In NLR 2002 SCJ 755-56 (Federal Government Employees Housing Foundation through its Director-General, Islamabad and another vs. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad) acquisition of land for a person other than public purpose, for personal benefit of a particular class of employees was held to be not in the interest of public. In PLD 1976 Lahore 747 (Muhammad Akbar (Through Legal Representatives) and 7 others vs. The Commissioner, Rawalpindi Division and 2 others), "public purpose" was defined. In that decision, it was held that one cannot be allowed to rob Peter to pay to Paul. That may be Robin Hood's philosophy but not the part of the laws of this land. So was held in PLD 2002 SC 1079-1080 (Federal Government Employees' Housing Foundation through Director-General, Islamabad and another vs. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad).
As far the alternate remedy against the issuance of notifications under Section 4 of the Land Acquisition Act is concerned, no remedy has been provided by the aforesaid Act. The filing of objections and its hearing can be made under Section 5-A of the Land Acquisition Act when the land has been notified under Section 5 of the Land Acquisition Act. As admittedly, no notification under Section 5 of the Land Acquisition Act, has been issued/made, so the writ petition is maintainable. Moreover, this Court has got jurisdiction as noted above to review the purpose and intent for which the alleged acquisition is being proposed or made, as held in 2000 YLR 1711/1712 (Gulshan Hussain and another vs. Commissioner (Revenue), Islamabad/Deputy Commissioner District Collector, I.C.T./Assistant Commissioner, Saddar, Islamabad and another). When the facts are apparent and the purpose is itself noted into the notifications, then no further inquiry into the purpose is needed. This Court has got ample jurisdiction to decide as to whether the purpose and intent of acquisition shown in the notification can be held to be of public purpose or not?
In the above noted circumstances, I consider it a fit case for interference in the exercise of Constitutional jurisdiction. Therefore, by allowing this writ petition, I declare both the impugned notifications Bearing Nos. 1195 and 1196 dated 10.9.2003, issued by the District Officer (Revenue), Muzaffargarh to be illegal and unlawful.
(A.A.) Petition accepted.
PLJ 2006 Lahore 315
Present: Syed Shabbar Raza Rizvi, J.
SAQIB MUKHTAR--Petitioner
versus
INSPECTOR GENERAL OF POLICE PUNJAB, LAHORE and 4 others--Respondents
W.P. No. 14152 of 2005, decided on 23.8.2005.
(i) Constitution of Pakistan, (1973)--
----Arts. 199, 184(3), 9, 10, 14 & 25--Fundamental rights as guaranteed under the Constitution--Powers of High Court and Supreme Court to protect fundamental rights, stated and illustrated. [P. 320] A
(ii) Constitution of Pakistan, (1973)--
----Arts. 5, 9, 10 & 244--Production of detenues before Court within 24 hours of arrest--No person can be detained or kept in custody beyond said period without authority of Magistrate--Detenus were never produced before any Magistrate; they were not allowed to meet their counsel, therefore, apparently their rights under Arts. 9 and 10 of the Constitution were infringed. [P. 320] B
(iii) Constitution of Pakistan, (1973)--
----Arts. 199 & 183(4)--Fundamental rights--Strength and independence of judicial system stressed so as to enhance strength of Nation and bring stability to that Nation/Country. [P. 321] C
(iv) Constitution of Pakistan, (1973)--
----Art. 199--Habeas corpus petition--Detenus were produced in Court wherein they stated that they would not proceed any further and want to withdraw petition--Writ petition was disposed of in terms of statement of detenus. [P. 321] D
Mr. Farooq Amjad Mir and Sardar Khurram Latif Khan Khosa, Advocates for Petitioner.
Mr. Aftab Iqbal Chaudhry, Advocate General Punjab and Ch. Khursheed Anwar Bhinder, Addl. A.G. with Malik Pervez Akhtar, Deputy Attorney General for Respondents.
Date of hearing: 23.8.2005.
Order
The petitioner filed this writ petition for the recovery of seven detenus namely, Zubair Qayyum, Sultan Qayyum (cousins of the petitioner), Shahid Baig, Shahbaz alias Nikki Butt, Shahbaz alias Fheena and Kamran alias Kami and Moon from the illegal and improper custody of the respondents.
The petitioner and Detenus Nos. 1 and 2 are close relatives and they deal in business of iron scrap based at Misri Shah, Lahore. According to the learned counsel for the petitioner, on the night of 17th July, 2005, two young persons drove in rashly in the Food Street, Old Anarkali, in a vehicle without registration number. Their car struck into the car of Detenus Nos. 1 and 2, bearing Registration No. LRX/532. It was further alleged that car of the said two young persons entered into the Food Street by violating one-way traffic sign. Both parties had a quarrel. However, emergency police arrived at the scene of occurrence who took the detenus and their vehicle to the police station. A case FIR No. 293/05 was registered against the detenus. The detenus also lodged a complaint but no F.I.R. was registered on their complaint. According to the learned counsel for the petitioner, by that time, the identity of two persons was revealed as Lieutenant Najeeb of 4-Northern Light Infantry and Lieutenant Imran of 12-Baloch Regiment.
The narrative part of the FIR registered at the instance of one of the above-mentioned army officials, is reproduced as under:
"We both Lt. Imran, 12-Baloch Regiment and Lt. Najeeb 4-NLI were going to Food Street for Dinner as we turned towards Food Street, a Corolla Registration No. LRX/532 came out escorted by two gunmen holding AK-47. We were followed by a Rikshaw so we could not take the vehicle back. We said; "wait, we will go back". They took no time and pulled my shirt on gun point while I was sitting inside the car. I rolled up the window of the car. They then fired upon right side of the vehicle and one of them fired in air and ran away. There were five persons in the vehicle. After this, we called 15/Police."
According to the learned counsel for the petitioner, on the same night, after registration of the case, a heavy police contingent, under the command of Dr. Usman/Respondent No. 3, SP City raided the house of the Detenus Nos. 1 & 2 and arrested Zubair Qayyum, Shahid Baig, Shahbaz alias Nikki Butt and Shahbaz alias Fheena. The houses of the detenues were looted and plundered by the persons who were included in the raiding party. According to the learned counsel, licensed arms were taken away besides valuables. The fundamental rights of privacy of home, etc. were violated. Four vehicles of detenues were also forcibly taken away by Respondent No. 3 and his men.
On the following day, i.e. 8th of July, 2005, Sultan Qayyum, after obtaining interim pre-arrest bail from the Court of Sessions alongwith Kamran and Moon appeared before the Respondent No. 2, SSP Investigation, Lahore. Respondent No. 2 detained the above said three persons as well. Since 17th July night, and 18th July afternoon, whereabouts of the above mentioned persons became unknown to the petitioner and families of the detenus. The learned counsel for the petitioner feared that the above-mentioned seven detenus might have been killed in a fake police encounter or by some other illegal means. The learned counsel further apprehended that since two army officers were involved in the matter, detenus might have been taken, by them, into illegal custody and the detenus might have also been caused bodily harm. The learned counsel further submitted that four detenus were arrested by Respondent No. 3 and three of them were produced before SSP Investigation in the presence of dozens of people. Yet the respondent police officials were not ready to tell about their whereabouts. The learned counsel further submitted that fundamental rights guaranteed under Articles 2A, 4, 9, 14 and 25 of the Constitution have been grievously contravened by the respondents and others.
In the above circumstances, the present writ petition was filed by the petitioner for the recovery and production of the detenus.
This writ petition was fixed for the first time, before my learned brother, Kh. Muhammad Sharif, J., on 3.8.2005. His Lordship directed to the learned Addl.A.G. Punjab to advise Respondent No. 3 to appear himself as well as produce the detenus before this Court on 4.8.2005. On 4.8.2005, Respondent No. 3, SP City appeared before the Court and stated that the detenus were required in a case registered under Section 324 PPC, at P.S. Old Anarkali. He further submitted that a detention order had also been issued by the Home Department. The SP City further added that the detenus were not in his custody. The Court directed him to file a reply alongwith his affidavit. Similar direction was also issued by the Court to Shafqaat Ahmad, SSP Investigation and the proceedings were adjourned till 11 a.m., the same day i.e. 4.8.2005. The above-mentioned two police officials appeared before the Court at 11 a.m. and submitted their affidavits to the effect that the alleged detenus were neither with them nor they were aware of whereabouts of the detenus and that even the detenus were not in the police custody. The learned counsel for the petitioner disputed the contents of affidavits and submitted that the Inspector General of Police be directed to produce the said detenus before the Court. The learned counsel further complained that five godowns of the detenus as well as their homes were sealed and the inmates were not being allowed to enter into their houses. The Court directed Capital City Police Officer, Lahore to depute an efficient and honest police officer to recover the alleged detenus from where ever they were available. The case was adjourned for 11.8.2005 to be fixed before any available Bench.
On 11.8.2005, the case came up for hearing before me as my learned brother, Kh. Muhammad Sharif, J. left for vacation. The SP Investigation appeared before me as he was deputed by Capital City Police Officer, as investigating officer in this matter. The said officer expressed his complete inability to recover the detenus. The learned Addl. Advocate General Punjab also showed his helplessness. Both of them submitted that whereabouts of the detenus were not known to anybody, despite the fact that four were arrested by SP City, and three appeared before SSP Investigation on 17.8.2005 and 18.8.2005 respectively. Both of them insinuated that the detenus might be in custody of some other agencies as the detenus had a conflict/quarrel with two army officers, on whose application FIR was registered at Old Anarkali Police Station. On this, the learned Attorney General as well as the learned Advocate-General Punjab were noticed to appear on 12.8.2005. The learned Attorney General of Pakistan was noticed as Armed Forces of Pakistan are under the control and command of the Federal Government, as provided under Article 243 of the Constitution. On 12.8.2005, the learned Advocate-General Punjab appeared and stated that whereabouts of detenus were not known to the respondent police officials. The learned Advocate-General Punjab reiterated statement of the police officials as well as the learned Addl. Advocate General made on previous dates. The Court was not satisfied with the answer and recorded that it was unbelievable that police officials were unaware of whereabouts of the detenus. It was observed that it was Constitutional and statutory duty of respondents to find out the detenus and to produce them before the Court. The Court was left with no other option except to summon Principal Secretary to the Governor of the Punjab, and the Principal Secretary to the Chief Minister Punjab, so that authorities at the highest level in the Province must known the facts of the case. The Home Secretary Punjab was also directed to appear. The said officials were directed to appear before the Court on 15.8.2005. The Deputy Attorney General of Pakistan was directed to convey the direction of the Court to the learned Attorney General of Pakistan to appear personally on 15.8.2005. On 15.8.2005, Mr. Makhdoom Ali Khan, Attorney General of Pakistan appeared with Dr. Danishwar Malik, Deputy Attorney General of Pakistan. The learned Advocate General Punjab alongwith Mr. G.M. Sikandar, Principal Secretary to the Chief Minister Punjab, also appeared. Mr. Hassan Wasim Afzal, Home Secretary, Government of the Punjab, also appeared. The Principal Secretary to the Chief Minister Punjab submitted that the Chief Minister was not in knowledge of the case; he submitted that he would apprise the Chief Minister to take appropriate measures in the matter. However, the learned Attorney General of Pakistan requested for a short adjournment. The case was adjournment to 16.8.2005. On 16.8.2005, Mr. Makhdoom Ali Khan, learned Attorney General of Pakistan, and Mr. Aftab Iqbal Chaudhary, the learned Advocate General Punjab, appeared before the Court and sought another adjournment till 23.8.2005. The learned counsel for the petitioner conceded to their request.
On 23.8.2005, the learned Advocate-General Punjab and Malik Pervez Akhtar, learned Deputy Attorney General of Pakistan appeared alongwith SP City and some other police officials and stated that detenus had been formally arrested in a case registered at P.S. Gulberg, Lahore. The Court directed them that they must produce the detenus before the Court in compliance of orders of this Court. They were further directed to produce the detenus by 1.30 p.m. On this, the proceedings were adjourned till 1.30 p.m. (23.8.2005). At 1.30 p.m., all seven detenus were prdocued. The learned counsel for the detenus identified them and expressed his satisfaction that all of them were in good health. The Court asked the detenus if they wanted to make any statement, the detenus chose not to make any statement, against any person. However, all of them expressed their gratitude, that they were produced before this Court, to be dealt with in accordance with law.
This habeas corpus petition was filed under Article 199 of the Constitution. The facts narrated above show the peculiar circumstances of this case. The incident took place between the detenus and two young army officials. The FIR was registered at the instance of one of the said army officers. The SP Investigation raided and arrested, four of seven detenus. Three detenus, themselves, after obtaining bail before arrest appeared before the SSP Investigation, Lahore. Thereafter, they disappeared from the scene and remained so, for more than a month. They were not produced despite several previous orders, a detail of which has already been related above. However, they have been produced today before this Court. Despite whatever happened, the detenus are satisfied, that they have been produced in the Court and they do not want to make any statement. The learned counsel appearing on behalf of the petitioner submits that he wants to withdraw this habeas corpus petition as instructed by the petitioner.
The fundamental rights of citizens and other persons are guaranteed under the Constitution of Pakistan. Not only that, the framers of the Constitution empowered the Supreme Court and the High Courts of Pakistan to protect these fundamental rights. For the same reasons, the Supreme Court and the High Courts of Pakistan have been conferred upon required powers under Articles 184(3) and 199 of the Constitution to enforce the same rights if the infringement of these rights is reported. Likewise, Article 199(2) of the Constitution gives right to citizens of Pakistan an unabridged right to move a High Court for enforcement of any fundamental right guaranteed by the Constitution. In the instant case, prima facie, fundamental rights of detenus under Articles, 9, 10, 14 and 25, to be read with Article 4 have been violated.
Under Article 199(1)(b)(i), this Court is under obligation to satisfy itself that a detenu is not being held in custody without lawful authority or in unlawful manner. The said duty has been performed by this Court by ordering production of the detenus as well as getting the orders implemented and by asking detenus if they wanted to record their statements.
The Constitution of Pakistan has created no right or duty in vain. Article 9 provides that no person shall be deprived of his life and liberty save in accordance with law. Article 9 is closely followed by Article 10 which requires that when a person is arrested, he shall not be denied the right to consult and be defended by a Lawyer of his choice. Likewise, such arrested or detained person is required to be produced before a Magistrate within a period of 24 hours of such arrest. No person can be detained or kept in custody beyond the said period without the authority of a Magistrate. In case, the above requirements are not fulfilled, the detention/custody would amount deprivation of a liberty guaranteed under Article 9 of the Constitution. The detenus were never produced before any Magistrate; they were not allowed to meet their counsel, therefore, apparently their rights under Articles 9 and 10 were infringed. In addition to that, whether they were in custody of police or with any other agency, the obedience to the Constitution and law is an inviolable obligation of all. In this regard provisions of Article 5 should be read with provisions of Article 244 of the Constitution. The language of these two Articles suggests that the command is very clear, and nobody can be relieved of obligation mentioned therein, in any circumstances.
The declared and avowed policy of the present Government is to have an enlightened society. The conduct of the respondents and some others in this case is not consistent or reflective of the said policy. All citizens of Pakistan are entitled to be treated in accordance with law. Similarly, no one is above the law. Therefore, if any person commits an offence, he should be dealt with in accordance with law and by the concerned agencies only. If Government officials of any department or organization will take law in their own hands, how can powerful individuals be stopped from doing the same? Therefore, everything needs to be done within a system, and strictly in accordance with law. It is appreciated that detenus have been produced before this Court and orders of this Court have been complied with.
In the past and present, the level of civilization of any Nation is judged from the strength and independence of its Judicial System. Judiciary itself has no force to get its orders executed. It is other organs of the State who have to do it. Therefore, strength of the Judiciary lies in the strength of the Society. Respect and obedience to judicial orders enhances strength of a Nation and a country and brings stability to it. It is in interest of everyone that Rule of law must prevail and it certainly elevates esteem and stature of Government of the day. At this juncture, I may quote a historic incident from history of the British Judiciary. The incident is quoted in my book at page 1370 (Constitutional Law of Pakistan, 2nd Edition Vol. II). A Crown Prince misconducted himself in the Court and attempted to get released his servant who was being tried by the Court. At that point, the Hon'ble Judge addressed/admonished Prince. The words of the Hon'ble Judge, and subsequent events are briefly described as under:
"Sir, remember yourself; I keep here the place of King, your sovereign Lord and father, to whom you owe double obedience. In his name, I charge you desist from your willfulness and unlawful enterprise and thereby give good example to those who hereafter shall be your subjects and now for your contempt and disobedience I send you to the prison of the King's Bench where I commit you and direct that you shall remain there until the pleasure of your father, the King, be further known.
Upon these words the Prince was abashed and: laying his weapons apart and doing reverence, departed and went to the King's Bench, as he was commanded. His servant felt disdainful at this came and told the King of what had happened, whereupon, in all gladness. The King holding his hand upwards said in a loud voice" "O. Merciful God, how much am I above all other men bound to your infinite goodness, especially because you have given me a Judge who fears not to administer justice and also a son who can suffer and obey justice."
As noted above, the learned counsel for the petitioner, on instructions, submits that he is satisfied that detenus have been produced, therefore, wants to withdraw this habeas corpus petition to move for bail or any other relief, under the law, before appropriate fora. The detenus also state that they do not want to proceed any further and want to withdraw this petition. Consequent to the above statements of the learned counsel for the petitioner and detenus, this writ petition is disposed of.
Before I part with this order, I want to appreciate efforts made by Mr. Makhdoom Ali Khan, learned Attorney General of Pakistan and other Law Officers. I also appreciate the assistance rendered by Mr. Farooq Amjad Mir and other learned counsels for the petitioner.
(A.A.) Order accordingly.
PLJ 2006 Lahore 322
Present: Umar Atta Bandial, J.
Haji MUHAMMAD IKRAM--Petitioner
versus
TAXATION OFFICER, INCOME TAX, CIRCLE-20, COMPANIES ZONE, FAISALABAD and another--Respondents
W.P. 19436 of 2004, decided on 5.5.2005.
Income Tax Ordinance, 1979 (XXXI of 1979)--
----Ss. 96 & 136--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Withholding refund of tax--Pendency of proceedings against order of refund--Suspension of obligation of income tax department--Validity--Respondents do not provide any justification to withhold refund amount adjudicated in favour of petitioners--Held: Mere fact of pendency proceedings against order of refund do not suffice to suspend the obligation to refund--Order accordingly. [P. 323] A & B
Mr. Ibrar Hussain Naqvi, Advocate for Petitioner.
Mr. Ilyas Khan, Advocate for Respondents.
Date of hearing: 5.5.2005.
Order
In response to the petitioner's claim for refund in the amount of Rs. 21,64,967/- pursuant to adjudication made in his favour, the learned counsel for the respondents has referred to the para-wise comments filed on behalf of his clients. He states that representation by the respondents is pending before the President of Pakistan against order of the F.T.O. dated 28.2.2004 and reference is also pending before this Court filed under Section 136 of the Income Tax Ordinance, 1979 against the order dated 3.9.2002 passed by the learned Income Tax Appellate Tribunal. As a result, the obligation of the respondents to refund the amount does not arise presently. Learned counsel for the petitioner has clarified that the representation by the respondents before the President of Pakistan has been dismissed vide order dated 4.4.2005, a copy whereof has been placed on record. In sofaras reference filed by the respondents against the order passed by the learned
Income Tax Appellate Tribunal is concerned, learned counsel for the petitioner after consulting the record states that there is no stay application therein, nor has any order of stay been passed by the learned bench of this Court dealing with the said matter. The foregoing reasons given for the respondents do not provide any justification to withhold the refund amount adjudicated in favour of the petitioners. Reference is made to the orders passed in W.P. No. 3764/04 titled M/s. Universal Foot Wear versus Deputy Commissioner Income Tax and W.P. No. 6037/2001 titled State Cement Corporation of Pakistan versus Chairman Land Zone, Lahore wherein this Court allowed the prayer of refund after holding that the mere fact of pendency of proceedings against the order of refund do not suffice to suspend the obligation to refund. Learned counsel for the respondents states that the department has verified the amount of petitioners refund in the amount of Rs. 11,82,558/- while the remaining amount of Rs. 9,82,409/- is still under verification. This exercise is being conducted as a double check although the department admits in paragraph 2 of its comments that the petitioner has indeed paid the amount of Rs. 21,64,967/-. Respondent No. 1 is given two weeks to do the needful and consequently directed to pay the petitioner the amount of refund due within 15 days of this order. In case of failure to do so, the petitioners shall be at liberty to file appropriate proceedings. On the request of the learned counsel for the respondents it is clarified the amount refunded shall be subject to the decision in the reference filed on behalf of the department in respect of aforesaid order by the Appellate Tribunal. Disposed of.
(A.S.) Order accordingly.
PLJ 2006 Lahore 323 [Multan Bench Multan]
Present: Maulvi Anwar ul Haq, J.
KHIZER HAYAT--Petitioner
versus
DISTRICT RETURNING OFFICER, VEHARI and 3 others--Respondents
W.P. Nos. 4991, 4907, 4753, 4941 and 4776 of 2005, heard on 27.9.2005.
Constitution of Pakistan, 1973--
----Art. 199--Election for seat of Nazim and Naib Nazim--Sanads obtained from Deeni Maddrissa--In one writ petition nomination papers were rejected and in all others were accepted--Orders challenged to on ground that their sanads were not equivalent to matric--Validity--None of said persons have passed examination of additional subjects i.e. English, Urdu and Pakistan Studies from any Board of Intermediate and Secondary Education--Accordingly one writ petition dismissed and all other allowed holding that orders accepting nomination papers for contesting elections to seats of Nazim and Naib Nazim by private respondents declared to be without lawful authority and set aside--Held: Said respondents being not duly nominated shall not be considered as contesting candidates within meaning of law. [Pp. 325 & 326] A, B & C
Mr. Nadeem Ahmad Tarrar, Advocate for Petitioner.
Mr. M.R. Khalid Malik, A.A.G. for Respondents.
Mr. Altaf Ibrahim Qureshi, Advocate for Respondents Nos. 3 & 4.
Date of hearing: 27.9.2005.
Judgment
This judgment shall decided W.P. No. 4991/05, 4907/05, 4753/05, 4941/05 and 4776/05 as common questions are involved in all these cases.
W.P. No. 4991/05
The nomination papers filed by Khizar Hayat petitioner to contest election to the seat of Nazim alongwith Naib Nazim in UC-78/ Burewala Distt. Vehari were rejected by the R.O. on the ground that he is not a Matriculate as his "Sanad ud Faragh" was found not to be equivalent to Matric as claimed by the petitioner. Learned DRO dismissed the appeal on 26.7.2005. Writ petition was filed in this Court on 15.8.2005.
W.P. No. 4907/05
The nomination papers filed by Respondents Nos. 3 & 4 were objected be on the ground that the "Sanad Shahadat us Sania tul aamia" was not equivalent to Matric and Shehzada Atta Hussain Khan, Respondent No. 3 is not qualified to contest election to the seat of Nazam in UC-50/Mailsi, distt. Vehari. Objection was rejected and the appeal filed by the petitioner was dismissed by the DRO, Vehari on 26.7.2005. W.P. was filed in this Court on 6.8.2005.
W.P. No. 4753/05
Nomination papers filed by the Respondents Nos. 3 & 4 were objected to on the ground that Mian Khalid Mustafa, Respondent No. 3 was not qualified to contest election to the seat of Nazam in UC-52/Manakpur Tehsil and Distt. Muzaffar Garh as his certificate "Shahadat us Sania tul Aamia" is not equivalent to M.A. and he is not Matriculate. Objections were allowed by the R.O. However, appeal filed by the Respondents Nos. 3 & 4 was allowed by the learned D.R.O. on 22.7.2005 and the papers were accepted. W.P. was filed in this Court on 29.7.2005.
W.P. No. 4941/05
Nomination papers filed by Respondents Nos. 3 & 4 for contesting election to the seats of Nazim and Naib Nazim in UC-79/Burewala, Distt. Vehari were objected to on the ground that Majid Hussain, Respondent No. 4 is not qualified to contest election as decree of "Shahadat ul Sanviatul Aama" is not equivalent to Matriculation Certificate. Objections were rejected by the learned R.O. and appeal was dismissed by learned DRO., Vehari on 26.7.2005. W.P. was filed in this Court on 10.8.2005.
W.P. No. 4776/05
Nomination papers filed by the Respondents Nos. 3 & 4 to contest election to the seats of Nazim and Naib Nazim in UC-84 Multan were objected to on the ground that decree "Shahadat us sanvia tul Aama" is not equivalent to Matriculation Certificate. Objection was rejected by the learned R.O. and appeal filed before the learned DRO was dismissed on 27.7.2005. W.P. was filed in this Court on 29.7.2005.
Learned counsel for the petitioners and the said respondents as noted by me above, have tried to argue that the sanads (degrees) being held by them are equivalent to Matric and on the basis thereof they are qualified to contest the said elections. Another common argument is that since during the pendency of the writ petition election having been held and the said persons have won the election, the matter be left to be decided by the Election Tribunal since constituted by the Learned Chief Election Commissioner of Pakistan. Learned counsel on the other side have placed implicit reliance upon the judgment dated 16.8.2005 of the Hon'ble Supreme Court of Pakistan inter alia in CPLA No. 1569/L/05 to urge that the said persons being not qualified to contest elections, the orders be passed accordingly.
It should not take me long to decide these matters in view of exhaustive judgment of the Hon'ble Supreme Court of Pakistan dealing with this matter and the admitted fact that name of the said persons has passed examination of additional subjects i.e. English, Urdu and Pakistan Studies from any Board of Intermediate and Secondary Education. I may further note here that in para 8 of the said judgment at page-5 thereof is a list of Sanads that were examined by their Lordships and these do include Sanads being relied upon by the said persons.
Now so far as the said objection of the said persons is concerned, suffice it to say that all these writ petitions have been filed before the election and in the scrutiny process.
Accordingly the W.P. No. 4991/05 is dismissed while W.P. Nos. 4907/05, 4753/05, 4941/05 and 4776/05 are allowed. The orders accepting the nomination papers for contesting elections to the seats of Nazim and Naib Nazim by the private respondents are declared to be without lawful authority and are set aside. Copy of this judgment be remitted to the office of learned Chief Election Commissioner for Pakistan and also the respective D.R.Os. Needless to state that the said respondents being not duly nominated shall not be considered as contesting candidates within the meaning of law.
No orders as to costs.
(M.A.R.) Order accordingly.
PLJ 2006 Lahore 326
Present: Muhammad Sayeed Akhtar, J.
MUHAMMAD AMIN and 2 others--Petitioners
versus
AKHTAR MUNIR--Respondent
C.R. No. 1412 of 2000, heard on 29.3.2005.
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Civil Procedure Code (V of 1908), S. 115, O. XXXIX, Rr. 1 & 2--Suit for declaration--Execution of general power of attorney by petitioner in favour of defendant his real brother--Disposal of property by attorney in favour of his sons and daughters by way of gift--Suit decreed--Appeal accepted--Validity--Respondent was not party to proceedings--Not bound by compromise--Compromise deed shows that respondent was not party to it--Defence of petitioner taken in written statement was that land had been transferred under compromise--Respondent was not party to contract, said agreement/compromise is not binding upon him--Law propounded--Scope of--Power of attorney in alienating property was that where agent alienates property of his principal in favour who were closely related, should in his own interest obtain consent of principal failing which principal was at liberty to repudiate transaction--Held: Record did not show any consideration was paid to respondent before land was gifted in favour of petitioners--Petition dismissed. [Pp. 328 & 329] A, B & C
Mr. Nazir Hussain Chishti, Advocate for Petitioners.
Mr. Riaz Ahmad Rana, Advocate for Respondent.
Date of hearing: 29.3.2005.
Judgment
This revision petition is directed against the judgment dated 24.5.2000 passed by the learned Additional District Judge, Sheikhupura affirming the decree of the learned Civil Judge dated 25.2.2000.
The suit was resisted alleging that the plaintiff had appointed the defendant/Petitioner No. 1 as his general attorney "as a result of a family settlement through the Court of Civil Judge, Haripur Hazara. The gift of the land was made with the consent of the plaintiff."
Out of the pleadings of the parties following issues were framed:--
Whether the gift in dispute is result of exceeding of authority by Defendant No. 1 and is illegal and collusive? OPP
Whether the suit is not maintainable for want of possession of plaintiff? OPD
Whether the suit is properly valued if so what is correct valuation? OPD
Whether the plaintiff is estopped by his words and conduct to file the suit? OPD
Whether the suit is bad for mis-joinder? OPD
Whether the transaction took place as a result of family settlement? OPD
Relief.
The learned trial Court after recording the evidence of the parties decreed the suit vide judgment dated 25.2.2000. The petitioners preferred an appeal before the District Judge, Sheikhupura which came up for hearing before the learned Additional District Judge, Sheikhupura who vide his judgment dated 24.5.2000 dismissed the suit.
Conversely the learned counsel for the respondent submitted that Muhammad Amin, petitioner, the attorney of the Respondent No. 1 had no authority to alienate his land to his sons and that the respondent was not a party in the earlier suit.
I tend to agree with the learned counsel for the petitioner that the relevant section for authentication of the power of attorney in Section 33 of the Registration Act and not Section 28, however, I have already held that the petitioner should have resorted to his principal before transferring the land as gift. The plea would not help the petitioner. The authority relied upon by the learned counsel for the petitioner is not applicable to the facts of the instant case.
(A.S.) Petition dismissed.
PLJ 2006 Lahore 329 (DB)
Present: Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ.
MUHAMMAD AKHTAR--Appellant
versus
ZAHAR KHAN--Respondent
R.F.A. No. 56 of 2004, decided on 18.5.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXVII, R. 2--Recovery suit on the basis of promissory note--Execution of pronote/receipt was admitted but the objection was that same had been execute as surety--Held: Burden to prove such fact was upon appellant/defendant which he could not prove through his evidence--Decree of trial Court was upheld by High Court. [P. 331] A
Negotiable Instruments Act, 1881 (XXVI of 1881)--
----S. 118--Negotiable instruments--Presumption of law--Held: There was an initial presumption that negotiable instrument was made, drawn, accepted and endorsed for consideration although such presumption was rebutable and the onus in such case was on the person who denied the same. [P. 331] B
1996 CLC 741; 1979 SCMR 465; PLJ 2000 Lahore 2194; PLD 1993 Lahore 244 and PLD 2004 Lahore 95 ref.
Mr. Waheed Babar Butt, Advocate for Appellant.
Ch. Javed Rasool, Advocate for Respondent.
Date of hearing: 18.5.2005.
Order
The brief facts out of which the present appeal arises are that appellant executed promissory note and receipt on 1.6.1999 and had promised to return the amount mentioned therein on demand. The appellant failed to return the said amount on demand. The respondent being aggrieved filed suit for recovery of Rs. 300,000/- under Order 37 of CPC in the Court of Addl. District Judge, Jhang. The appellant filed application for leave to defend the suit which was allowed. In view of the divergent pleadings of the parties the trial Court framed the following issues:--
Whether the defendant received Rs. 300,000/- as loan from the plaintiff and executed promissory note in the presence of the witnesses? OPP
Whether the plaintiff has got no cause of action to file the present suit? OPD
Whether the plaintiff is estopped to sue by his words and conduct? OPD
Whether the suit is false and frivolous and the defendant is entitled to special costs u/S. 35-A of CPC? OPD
Whether the suit is liable to be dismissed in view of preliminary Objection No. 5? OPD
Relief.
The trial Court decreed the suit vide impugned judgment and decree dated 14.1.2004. Hence the present appeal.
Learned counsel of the appellant submits that onus of Issue No. 1 was on the respondent, therefore, appellant could not produce evidence in view of the aforesaid circumstances. As such the impugned judgment and decree is not sustainable in the eyes of law. He further submits that on account of putting onus on respondent the appellant was not in a position to defend the suit in proper manner, therefore, impugned judgment and decree is hit by principle of natural justice. He further submits that appellant/ defendant never got any amount of loan from the respondent/plaintiff and he had executed promissory note and receipt in favour of respondent/ plaintiff only as surety. This fact was not considered by the trial Court in its true perspective.
Learned counsel of the respondent submits that initial burden was upon the defendant in view of Section 118 of Negotiable Instruments Act, 1881. The appellant failed to discharge his initial onus as the appellant accepted the execution of promissory note and receipt. Therefore, presumption is in favour of the respondent and impugned judgment and decree is in accordance with the law laid down by the Superior Courts.
We have given anxious consideration to the contentions of the learned counsel of the parties and perused the record.
It is admitted fact in the present case that the appellant/ defendant admitted the execution of pronote/receipt with the objection that pronote/receipt was executed as surety. In other words execution of the document was admitted by the appellant/defendant. Therefore, burden to prove that the document in question was executed as surety was on the appellant/defendant but he could not prove this fact by producing evidence. Therefore, trial Court was justified to decree the suit against the appellant/defendant which is in consonance with the law laid down in Farid Akhtar Hadi's case (1993 CLC 2015). It is settled principle of law that under Section 118 of Negotiable Instruments Act, 1881 there is an initial presumption that negotiable instrument is made, drawn, accepted and endorsed for consideration although this presumption is rebutable yet it is settled law that the onus is on the person denying consideration to allege and prove the same as the law declared by the Honourable Supreme Court while interpreting aforesaid provision of law in Haji Karim's case (1973 SCMR 100). The aforesaid proposition of law is also supported by the following judgments:
Khalid Mukhtar's case (1996 CLC 741)
Muhammad Boota's case (1979 SCMR 465)
Muhammad Rafiq's case (PLJ 2000 Lahore 2194)
Muhammad Yousaf's case (PLD 1993 Lahore 244)
The question of law has also been settled by a Division Bench of this Court in Muhammad Ashiq vs. Niaz Ahmad (PLD 2004 Lahore 95) laid down the following principle:
"It is settle principle of law that making of payment in connection with promissory note does not require to be proved and it is sufficient if the execution of the promissory note is either proved or admitted."
In view of what has been discussed above, we do not find any infirmity or illegality in the impugned judgment and decree of the trial Court. This appeal has no merit and the same is dismissed.
(J.R.) Appeal dismissed.
PLJ 2006 Lahore 332 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD ABI WAQAS--Petitioner
versus
CHAIRMAN ADMISSION BOARD MEDICAL COLLEGES/PRINCIPAL, KING EDWARD MEDICAL COLLEGE/MEDICAL COLLEGES, NEELA GUMBAD, LAHORE and 3 others--Respondents
W.P. No. 720 of 2005, heard on 24.2.2005.
Educational Institution--
----Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Admission in Medical Colleges--Under developed districts--Reservation of seats--Declared policy for admission in Medical College--Entitlement of--Admissions was made in accordance with declared policy, which in its turn has been framed in compliance with judgment of Supreme Court, have not been controverted--High Court directed respective Governments to identify socially and educationally backward areas to qualify far admission to Medical Colleges against reserved seats--No allegation that any candidate has been so admitted in violation of judgment of Supreme Court--Held: Candidate must have domicile in identified under-developed District and have completed his requisite education to entitle him to apply for admission to seat reserved for particular district--Petition dismissed. [P. 335] A & B
Mr. Muhammad Arif Alvi and Ch. Abdul Hakeem, Advocates for Petitioner.
Mr. Qasim Khan, AAG with Abdul Rashid, Litigation Assistant, K.E. Medical College, Lahore for Respondents.
Date of hearing: 24.2.2005.
Judgment
This judgment shall decide W.P. No. 720/05 and W.P. No. 375/05 as somewhat common questions are involved.
Muhammad Abi Waqas petitioner is domiciled in District Lodhran, studied upto Matric in a School in Muzaffargarh and passed his Matriculation Examination (Annual, 2001) (Science Group) vide
Certificate Annex: A' issued by BISE, Dera Ghazi Khan. However, he passed his
Intermediate Parts-I and II Annual Examination, 2004 from BISE, Lahore (Annex:B').
(ii) W.P. 375/05
Mahboob Alam petitioner is domiciled in
District Lodhran. He passed his Matric Examination (Annual, 2002) (Science
Group) from a school in Muzaffargarh and Intermediate from a Higher Secondary School in Muzaffargarh, vide Certificates Annexes: B' andB/1' issued by BISE, D.G.
Khan.
Pursuant to the judgment delivered by the Hon'ble Supreme Court of Pakistan in the case of Mst. Attiyya Bibi Khan and others vs. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others (2001 SCMR 1161) four seats were reserved for District Lodhran as an under-developed District in the prospectus for the Sessions 2004-2005 for the Government Medical Colleges in the Punjab. These seats were reserved in the Nishter Medical College, Multan. The grievance being made out in these writ petitions is that notwithstanding the fact that the two writ petitioners are domiciled in Lodhran and that they have also completed their education from another under-developed District, namely, Muzaffargarh, they have not been admitted to a Medical College against the said reserved seats although they were eligible for the same.
Before I proceed further I may note that it has been stated at the bar by the learned AAG under instructions from the said officer, present in Court, that all the four seats reserved in Lodhran District have since been filled up and the candidates admitted are domiciled in Lodhran and they have completed their relevant education in Lodhran.
Both the learned counsel appearing for the petitioners in these two cases urge that upon a proper reading of the judgment of the Hon'ble Supreme Court in the said case of Mst. Attiyya Bibi Khan and others, and the relevant provisions of the prospectus, it can safely be inferred that a candidate who is domiciled in Lodhran and has completed his education in Muzaffargarh, both being under-developed Districts, would be entitled to be admitted to the seats reserved for Lodhran. Mr. Arif Alvi, Advocate, has gone a step further to state in the matter of his client that the domicile of Lodhran would be enough and notwithstanding the fact that he cleared his Intermediate Examination from Lahore would be of little consideration. Learned AAG, on the other hand, contends that the seats have been reserved in the said under-developed Districts in strict accordance with the said judgment of the Hon'ble Supreme Court of Pakistan and the relevant provisions of the Prospectus have also been worded in accordance with the judgment and the policy adopted has been followed strictly inasmuch as all admissions to reserved seats have been made on the same basis i.e. only such candidates have been admitted to the seats reserved in Lodhran who were domiciled in Lodhran and they also completed their education in Lodhran.
I have given some thought to the respective contentions of the learned counsel for the writ petitioners and the learned Law Officer. No doubt, the contentions of the learned counsel for the petitioners particularly of Mr. Abdul Hakeem for Mahboob Alam petitioner do appear to be attractive at a first glance but upon a close scrutiny in the light of the circumstances of these cases, hold little water.
Now several persons challenged the reservation of seats on the ground that the same is violative of the provisions of Article 25 of the Constitution of the country. The matter ultimately went upto the Hon'ble Supreme Court in the said case of Mst. Attiyya Bibi Khan and others and was resolved accordingly. The portion of the judgment relevant to these cases appears at page 1187 of the report and is as follows:
"In the same spirit Articles 22 and 25 of the Constitution permit special provision to be made for women and children or socially or educationally backward and undeveloped classes. Therefore, reservation of seats for such category may be justified. It must, however, be pointed out that the benefit of such reservation should only be confined to those who have acquired their school and intermediate education from such less developed areas and not to anyone who manages to obtain a domicile certificate from that area."
The directions were reiterated in the case of Abdul Baqi and others v. Muhammad Akram and others (PLD 2003 SC 163). Consequentially, the seats were reserved for under-developed Districts, inter alia, in Multan Division. These are as follows:
Sr. Name of District No. of Seats.
Rajanpur 2(1 for settled and 1 for tribal areas
Lodhran 2
D.G. Khan 3(2 for settled and one for tribal areas.
Muzaffargarh 2
The conditions are worded in the following terms:--
(i) The candidate must have a domicile of the same Districts Areas, and must have completed his/her school and Higher Secondary Education from the same Districts Area."
Now Mr. Arif Alvi, Advocate, is of the view that the term "Districts Areas" used in the said condition is not to be read disjunctively. According to the learned counsel, the term "Districts" referred to the District of domicile while the term "Areas" referred to the entire area of the undeveloped Districts. I am afraid the contention does not have any force. It will be seen that in the matter of Rajanpur and Dera Ghazi Khan, some seats are reserved for settled areas and some seats are reserved for the tribal areas. To my mind, the term "Districts" is referable to the specific under-developed District while the term "Areas" is referable to the tribal area in question.
Needless to state that the matters have been stated in unambiguous term in the Prospectus for the relevant year and it is to be assumed that applications have been filed with reference to the same. The factual position stated by the learned AAG that admissions have, in fact, been made in accordance with the said declared policy which in its turn has been framed in compliance with the said judgment of the Hon'ble Supreme Court of Pakistan, have not been controverted. I may further note here that in para-12 of the said judgment in the case of Mst. Attiyya Bibi Khan and others the Apex Court directed the respective Governments to identify socially and educationally backward areas in order to enable the children receiving education in such areas to qualify for admission to Medical Colleges against reserved seats. This needful has since been done. There is no allegation that any candidate has been so admitted in violation of the said judgment of the Hon'ble Supreme Court of Pakistan.
Thus, upon a reading of the said judgment of the Hon'ble Supreme Court of Pakistan and the policy framed, in compliance therewith, the only possible interpretation is the one being made by the learned A.A.G., i.e., the candidate must have a domicile in the identified under-developed District and must have completed his requisite education in the said District to entitle him to apply for admission to the seat reserved for that particular District. Both the writ petitions are accordingly dismissed without any orders as to costs.
(A.S.) Petition dismissed.
PLJ 2006 Lahore 335 [Multan Bench Multan]
Present: Muhammad Nawaz Bhatti, J.
Mst. SHAMIM AKHTAR SAMINA--Petitioner
versus
JAFFAR HUSSAIN and 2 others--Respondents
W.P. No. 9767-F of 2002, heard on 8.12.2005.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 9--Constitution of Pakistan, 1973, Art. 199--Personal appearance--Suit for recovery of dowry article--Defendant is bound to appear personal in family Court for the purpose of filing written statement and his attendance cannot be dispensed with therefore, written statement filed by special attorney of respondent/defendant did not deserve consideration in the eye of law--Held: Case remanded back to District Judge to pass afresh order after hearing the parties. [P. 337] A & B
Sardar Muhammad Akram Khan Pitafi, Advocate for Petitioner.
Respondent No. 1 already proceeded ex-parte.
Date of hearing: 8.12.2005.
Judgment
Brief facts leading to this writ petition are that the petitioner filed three suits, (1) suit for maintenance allowance, (2) suit for recovery of dower and (3) suit for recovery dowry articles, against Respondent No. 1 before the learned Family Judge, Muzaffargarh, who decreed two suits, one for recovery of maintenance allowance and the other for recovery of dower but dismissed the suit for recovery of dowry articles vide his judgment dated 17.4.2004. The petitioner challenged the vires of the judgment dated 17.4.2001 passed by the learned Judge Family Court Muzaffargarh, whereby a suit for recovery of dowry articles was dismissed. The appeal was also dismissed by the learned District Judge, Muzaffargarh, vide his judgment dated 1.6.2002. Against the said judgment, the petitioner has filed this writ petition.
learned counsel for the petitioner has contended that the written statement to the suit for recovery of dowry articles was not filed by the respondent/defendant Jaffar Hussain himself but was filed by the special attorney of the respondent, as such the same did not deserve consideration and reliance in this behalf is placed on Mazhar Iqbal vs. Falak Naz and 2 others (PLD 2001 Lahore 495) and that the appeal before the learned District Judge Muzaffargarh was within time as the copies of the decree-sheets of the judgment and decrees were delivered to the petitioner on 4.7.2001 but if it is admitted for the time being that the appeal was barred by time, even otherwise limitation would not run against void order and in this behalf reliance is placed on Mustajab Hasan and others vs. Director Trade Organisations and others (1996 CLC 1725) and, therefore, the impugned judgment dated 17.4.2001 passed by the learned Judge Family Court Muzaffargarh and the judgment dated 1.6.2002 passed by the learned District Judge Muzaffargarh are illegal, void ab initio and against well-settled principles of equity and law.
Arguments heard. Record perused.
4 Perusal of the written statement to the suit for recovery of dowry articles filed by the petitioner itself shows that it was filed by Jam Ghulam Rasool special attorney of the respondent/defendant Jaffar Hussain and not filed by the respondent himself. Under Section 9 of the West Pakistan Family Courts Act, 1964, a defendant is bound to appear in the Family Court himself for the purpose of filing a written statement and his attendance cannot be dispensed with. Therefore, the written statement filed by the special attorney of the respondent/defendant Jaffar Hussain did not deserve consideration in the eye of law. On this proposition, I am supported by the authority cited by learned counsel for the petitioner i.e. Mazhar Iqbal vs. Falak Naz and 2 others (PLD 2001 Lahore 495).
As far as the limitation is concerned, learned counsel for the petitioner has stated that as the decree sheet of the decree dated 17.4.2001 was not prepared well in time, the Copying Agency did not deliver the copy to the petitioner on 18.6.2001 and the copy of the decree sheet of the decree dated 17.4.2001 was delivered to the petitioner on 4.7.2001 when it was prepared. If it is admitted that the appeal before the learned District Judge Muzaffargarh was barred by time, even though limitation would not run against the void order. Reliance in this behalf is placed on Mustajab Hasan and others vs. Director Trade Organisations and others (1996 CLC 1725). The judgment dated 17.4.2001 was passed by the learned Judge Family Court Muzaffargarh without the written statement of the respondent/ defendant Jaffar Hussain, therefore, it was void and illegal. As the judgment dated 17.4.2001 was illegal and void, limitation would not run against the same order.
In view of the above circumstances, this writ petition is accepted, the judgment dated 17.4.2001 passed by the learned Judge Family Court Muzaffargarh and the judgment dated 1.6.2002 passed by the learned District Judge Muzaffargarh are set aside and the case is remanded back to the learned District Judge Muzaffargarh to pass a fresh order after hearing both the parties and considering the observations made above.
(R.A.) Case remanded.
PLJ 2006 Lahore 337
Present: Umar Ata Bandial, J.
BILAL YAMEEN and 4 others--Petitioners
versus
SECRETARY, CO-OPERATIVES, GOVERNMENT OF PUNJAB, LAHORE and 3 others--Respondents
W.P. No. 7573 of 2005, decided on 9.5.2005.
Constitution of Pakistan, 1973--
----Art. 199--Petitioners/Members Board of Directors of Punjab Provincial Cooperative Bank Ltd., whose term of office had expired but was subsequently extended for stipulated period--Extension, afterwards was withdrawn--Held: Financial exposure of Government of Punjab as a guarantor of the borrowings made by Bank showed that it was the only entity accountable of financial obligations of the Bank and therefore had a direct interest in its sound financial health and hence restructuring & revival--Action taken by Government of Punjab in tandem with SBP for such purposes could not be faulted either on the ground of jurisdiction and authority or on basis of motives and mala fides--Petitioners were not even representatives of Bank and were merely transitional caretakers continuing for administrative convenience at the grace & pleasure of Provincial Government--Extention in time in office conferred no vested right because it was not based upon the qualifying criteria of elected & representative status--Extension was therefore revocable and could be terminated without incurring any bar or estoppel or locus poenitentiae--Further held: Government of Punjab had sufficient legal interest and right to undertake restructuring of Bank in consultation--Financial restructuring by Provincial Government would include measures to safeguard interest of equity holders of the Bank, financial interest and their right to representation in the decision making process of the Bank--Writ petition dismissed. [Pp. 340 & 341] A, B & C
Syed Zulfiqar Abbas Naqvi, Advocate for Petitioners.
Mr. Muhammad Ilyas Khan, Advocate for Respondents.
Date of hearing: 9.5.2005.
Order
This is a petition filed by five persons who are members of the Board of Directors of Punjab Provincial Cooperative Bank Limited ("Bank"), whose term of office expired on 30.9.2004. In exercise to powers under Clause 34 of the Byelaw of the Bank, the Registrar Cooperative Societies, Respondent No. 2 initially extended the term of office of the Board of Directors of the Bank for 3 months upto 31.12.2004. Thereafter by order dated 6.1.2005 he further extended their term for another six months upto 30.6.2005. The impugned order dated 20.4.2005 has been issued by the Respondent No. 2 during the extended period of the petitioner's term which declares as follows:
"ORDER
Whereas, the tenure of the Board of Directors of the Punjab Provincial Co-operative Bank Limited (PPCBL), was extended w.e.f. 1.1.2005 to 30.6.2005 vide order dated 6.1.2005 issued under No. RCS/B&C/BOD/III.
And Whereas, the State Bank of Pakistan has been stressing from time to time for restructuring of the PPCBL enhancing its capital base, developing a formal criterion for selection of the Bank's Board Members and rationalizing its number of Directors in accordance with the guidelines issued by the State Bank of Pakistan, etc. etc.
And Whereas, the Government of the Punjab has also stressed for restructuring of the PPCBL to make it a financially viable and self-reliant Institution.
Now Therefore, I Khalid Pervez, Registrar Co-operatives, Punjab in exercise of the powers vested in me by virtue of Byelaw No. 34 of Punjab Provincial Co-operative Bank, Ltd., have sufficient reasons and fully satisfied, specially to facilitate the restructuring in compliance of the directions of the Government of the Punjab and State Bank of Pakistan, hereby withdraw the extension of the remaining period of the Board of Directors of PPCBL, which shall cease to exist with immediate effect.
(KHALID PERVEZ)
Registrar Co-operatives, Punjab, Lahore.
No. RCS/B&C/PA-846 Dated: 20.4.2005"
Learned counsel for the petitioners has urged that the Respondent No. 2 does not have power to retract the extension granted to the petitioners and, therefore, the impugned order is alleged to be arbitrary, unlawful and passed without lawful authority. He also pointed out that the Government of Punjab, Respondent No. 1 has no equity in the Bank but it is nevertheless developing a strategy for restructuring of the Bank whereas it has no right to commit interference in the Bank's affairs.
Learned counsel for the respondents has placed before the Court substantive material showing the financial exposure of the Provincial Government to secure the obligation of the Bank which is a scheduled bank under the Banking Companies Ordinance, 1962. The Government of Punjab has issued a guarantee dated 26.6.2004 to the State Bank of Pakistan ("SBP") in the amount of Rs. 9.00 billion to secure the liabilities of the Bank owed to the SBP for the financial year 2004-05. The Bank's borrowing from the SBP as on 31.3.2005 is in the amount of Rs. 7.961 million. The Bank has a previous overdue financial obligation of Rs. 2,528 billion owed to the SBP for borrowing made during the financial year 2003-04. The SBP has extended time for repayment of this amount upto 30.6.2005. For the current financial year 2004-05 the financial obligation of the Bank towards the SBP is Rs. 6.0 billion which is to be repaid by the Bank on or before 31.12.2005. The foregoing amounts are in addition to a liability of Rs. 1.5 billion plus mark upto SBP which is outstanding in the books of the Bank ever since 1977.
Learned counsel for the respondents has emphasized that the Bank is in a state of financial distress and surviving upon roll-overs by the SBP given upon the financial guarantee furnished by the Government of Punjab. The impugned order must be examined in the foregoing background of financial difficulties of the Bank and in particular, the fact the SBP has since long been asking the Provincial Government to take serious measures to restructure the Bank for which it has fixed 30.6.2005 as a deadline. These measures include enhancement of capital base of the Bank from its present figure of Rs. 457.0 million to the benchmark of Rs. 2.0 billion set by the SBP. The restructuring requirements of the SBP also include the development of formal criteria of qualification and selection of the members of the Board of Directors of the Bank. the present criteria being non-technical, general and out dated. It is emphasized that the Bank is a financial institution that renders public service of immense importance to the rural economy of the province. The Provincial Government is committed to rescue it rather than to allow its dissipation due to financial default.
The SBP is the principal regulator of all financial institutions in the country. Unless its mandate and requirements are met, the Bank faces threat of its de-scheduling by the SBP. Such action would mean the closure of banking services and business of the Bank. Accordingly the steps recommended by the SBP represent careful deliberations which must be adopted, with or without a modifications as are approved by the SBP, in order to save the Bank. This is precisely the objective of the impugned order.
The petitioners do not dispute the Bank's overdues and the conditionalities lay down by the SBP. Accordingly, the Court has neither any reason nor material on record to disagree with the object of the impugned action. Furthermore, the financial exposure of the Government of Punjab as a guarantor of the borrowings made by the Bank, leaves no doubt that by virtue of its obligation as surety, the Provincial Government is the only entity accountable for performance of financial obligations of the Bank and therefore has a direct interest in its sound financial health and hence restructuring and revival. Any action taken by the Government of the Punjab in tandem with SBP for the foregoing purpose cannot be faulted either on the ground of jurisdiction and authority or on the basis of motives and mala fides.
6-A. What remains to be considered is whether the petitioners have any legal right by virtue of their office to prevent the consideration, formation and implementation of the restructuring measures for the Bank by the Government of the Punjab in consultation with the SBP. By their present status the petitioners are not even representative of the membership body of the Bank. They are merely transitional caretakers continuing for administrative convenience at the grace and pleasure of the Provincial Government. The extension in their time in office confers no vested right because it is not based upon the qualifying criteria of elected and representative status. The extension is therefore revocable and can be terminated without incurring any bar or estoppel or locus poenitentiae.
When, however, the petitioners occupy representative status then they have locus standi to defend the valuable rights of the equity holders of the Bank that deserve protection. According to the financial statement of account attached on record the members of the Bank have an equity of Rs. 4.41 million in its capital as on 31.3.2005. Notwithstanding the allegation that this amount actually represents deposits of member co-operative societies converted into the share capital the Bank, the fact remains that the said equity holding has been generated from the funds belonging to more than a thousand member co-operative societies who therefore have an interest that merits to be represented and defended in the affairs of the Bank. The restructuring proposals for the Bank that are finally formulated in consultation with the SBP must contain provisions to safeguard the interest of the equity holding co-operative societies that are members of the Bank. This, however, does not mean that criteria of competence, integrity and professional accomplishment cannot be laid down as qualification for the office of directors of the Bank as appears to be intended by the impugned order. It would make good sense if such qualifications are spelled out and implemented through elections at the earliest so that competent input and consultation may be rendered on behalf of the equity holders with respect of the restructuring proposals.
However, that stage of discussion has not arrived yet. It is accordingly held that the Government of the Punjab has sufficient legal interest and right to undertake restructuring of the Bank in consultation with the SBP. The final restructuring proposals by the Provincial Government shall include measures to safeguard the interest of the equity holders of the Bank both with respect to their financial interest and their right to representation in the decision making process of the Bank. At the present stage when no action that is detrimental to the equity holders of the Bank has been taken, renders this petition to be premature and it is accordingly dismissed.
(J.R.) Petition dismissed.
PLJ 2006 Lahore 342
Present: Muhammad Akhtar Shabbir, J.
CH. MUHAMMAD AFZAL--Petitioner
versus
GOVERNMENT OF THE PUNJAB through SECRETARY, IRRIGATION AND POWER DEPARTMENT, LAHORE and 4 others--Respondents
W.P. No. 11148 of 2002, decided on 21.3.2005.
Canal and Drainage Act, 1873 (VIII of 1873)--
----Ss. 4 & 68--Constitution of Pakistan, 1973, Art. 129--Constitutional petition--Amendment in schedule and alteration in local limits--Vires of notification--Governor can exercise authority or all exclusive actions would be taken in his name--No authority has been exercised u/S. 4 of Canal and Drainage Act, in the name of Governor--Notification directly issued by Secretary Irrigation and Power Development Department, Government of Punjab, such notification was neither issued by Governor nor in the name of Governor of Punjab--Rules of business cannot be equated with statute law--Subordinate legislation tending to facilitate expeditions disposal of Govt., business to meet convenience and requirements of public in domestic set up--Respondent placed no proof of fact that Governor has vested any authority u/S. 4 of Canal and Drainage to Secretary of Department--Held: Impugned notification has been issued illegally and without lawful authority--Petition accepted. [Pp. 344 & 345] A, B, C & D
Ch. Muhammad Zahoor Nasir, Advocate for Petitioner.
Ch. Muhammad Suleman, Addl. A.G. for Respondents.
Date of hearing: 21.3.2005.
Order
The petitioner through the instant writ petition has challenged the vires of the notification dated 21.1.2002, issued by Respondent No. 1.
Report and parawise comments from the respondents were called for, which have been received and perused. Therefore, after hearing the learned counsel for the parties I have decided to dispose of this petition as notice case.
The learned counsel for the petitioner contended that Respondent No. 1 had issued a notification dated 21.1.2002, making amendment in the schedule and altered the local limits of the officer mentioned in Column No. 2, for the exercise of the powers under Section 68 of the Canal and Drainage Act (VIII of 1873). The impugned notification is reproduced hereunder:
Government of the Punjab Irrigation & Power Department Dated Lahore the 21st Jan., 2002
NOTIFICATION
No. SO (Rev) (I&P) 3-93/2001: In exercise of the power conferred on him by Section 4 of the Canal & Drainage Act, 1873 (VIII of 1873) (Amended 1975) read with Government of the Punjab Irrigation & Power Department Notification No. SO (Rev) (I&P) 3-93/86 dated 11.8.1987. The following amendment is made to fix local limits as shown in Column 3 of the Schedule in respect of the officer mentioned in Column 2 thereof for the exercise of Powers as Sub-Divisional Canal Officer under Section 68 of the said Act.
S.No. Name of the Deputy Local Limits
Collector/Sub-Divisional Zilladari Section
Canal Officer
Deputy Collector Balloki Div.
Kalasan Section.
Sub Divisional Canal Officer Akhtarabad Sub-Division.
Khokhar Section.
Sd/-
SECRETARY
IRRIGATION & POWER DEPARTMENT
LAHORE"
The learned counsel for the petitioner contended that Respondent No. 1, has exercised the authority in issuing the Notification in dispute without lawful authority, the powers under Section 4 of the Canal and Drainage Act, is conferred on the Governor of the Punjab.
On the other hand, the learned Additional Advocate General, vehemently opposed the arguments of the learned counsel for the petitioner, contending that the respondent was competent/authorized to issue the said notification under Article 139(3) of the Constitution of Islamic Republic of Pakistan 1973, in accordance with the allocation and transaction of the Rules of Business of the Provincial Govt.
I have heard the learned counsel for the parties and perused the record. On 11.10.1987, the Governor of the Punjab issued a Notification No. S.O. (Rev) (I&P) 3-93/86 and determined the local limits as shown in the column of the schedule in respect of the officer mentioned in Column No. 2, for the exercise of the powers as Sub-Divisional Canal Officer, under Section 68 of the Act.
Section 4 of the Canal and Drainage Act envisaged as under:
....... Powers to appoint officers.--The Provincial Government may from time to time declare, by notification in the Official Gazette the officers by whom, and the local limits within which all or any of the powers or duties hereinafter conferred or imposed shall be exercised or performed.
All officers mentioned in Section 3, clause (7) shall be respectively subject to the orders of such officers as the Provincial Government from time to time directs."
interpretation' of the wordGovernment' provided in Section 4 of the Canal and Drainage Act, to the extent whether the powers of the Govt. shall be exercised by the Governor or any other functionary of the State like Respondent
No. 1. In this context, it would be beneficial to reproduce Article 129 of the
Constitution of Islamic Republic of Pakistan, 1973 ....."Exercise of executive authority of the Province.--The executive authority of the Province shall vest in the Governor and shall be exercised by him, either directly or through subordinate to him, in accordance with the Constitution.
Article 139 of the Constitution emerges as under:
Conduct of business of Provincial Govt.
(1) All executive action of the Provincial Govt. shall be expressed to be taken in the name of the Governor.
(2) The Governor shall by rules specify the manner in which orders and other Instruments made and executed in his name shall be authenticated, and the validity of any order or instrument so authenticated shall not be questioned in any Court on the ground that it was not made or executed by the Governor.
(3) The Governor shall also make rules for the allocation and transaction of the business of the Provincial Government.
From the plain reading of the above referred provisions of the Article of the Constitution of Islamic Republic of Pakistan, 1973, it reveals that it is the Governor who can exercise the authority or all executive actions shall be taken in his name. Reference can be made in case of M/s. Al-Noor Textile Mills Limited and another vs. Additional Chief Secretary, Housing Town Planning Local Government and Rural Development Department, Government of Sindh and 3 others (1992 MLD 654). Reference can also be made to (Sh.) Akbar Hussain vs. Government of the Punjab (NLR 1986 Civil Cases 565), Sabimullah Khan and 10 others vs. Raqib Khan and 15 others (1989 SCMR 1879). It has been laid down by the honourable Supreme Court which is apex Court of the Country. In the said case it has been laid that the only authority was to be exercised in the name of the Governor and not necessarily by the Governor himself. From the perusal of the Notification impugned, it has transpired that no authority has been exercised under Section 4 of the Canal and Drainage Act, in the name of the Governor. This notification directly issued by the Secretary Irrigation and Power Development Department, Govt. of the Punjab, this notification was neither issued by the Governor nor in the name of the Governor of the Province of Punjab. In this regard the guidance can also be sought from a judgment of the Division Bench of Karachi High Court in case of Abdul Haq and others vs. Province of Sindh and others (PLD 2000 Karachi 224). The Honourable Judges have settled in this case that executive authority of Province vests in the Provincial Govt. under Article 129 of the Constitution of Islamic Republic of Pakistan, 1973. Such authorities exercised by him directly or through other officers or under the Constitution and further observed that all the functionaries in a Constitutional set up derived before and from the Constitution itself or from the law as may be framed by the Legislature. The rules of business cannot be equated with the statute law. Same are subordinate legislation tending to facilitate expeditious disposal of Govt. business to meet the convenience and requirements of public in a democratic set up. Respondent have placed no proof of the fact that the Governor has vested any authority under Section 4 of the Canal and Drainage Act (VIII of 1873) to the Respondent No. 1, Secretary of the Department.
For the foregoing reasons there is no option but to declare the impugned notification dated 21.1.2002, to have been issued illegally and without lawful authority. Resultantly, this writ petition is accepted as prayed for.
(A.S.) Petition accepted.
PLJ 2006 Lahore 345
Present: Syed Shabbar Raza Rizvi, J.
MUHAMMAD SARFRAZ and another--Petitioners
versus
SIKANDAR HAYAT and 5 others--Respondents
W.P. No. 14168 of 2005, decided on 6.9.2005.
Punjab Local Government Ordinance, 2001 (XIII of 2001)--
----S. 152(1)(e)--Constitution of Pakistan, 1973, Art. 199--Competency of--District Returning Officer declared respondents as eligible candidates for seats of Nazim & Naib Nazim--Assailed--Matter was kept pending before High Court awaiting decision of Supreme Court on the same point in a similar matter--Due to non-availability of copy of judgment of Supreme Court and on the request of respondents, parties were allowed to contest elections with the condition that election result would be subject to final decision of writ petition--Respondents on having won the election, raised objection that writ petition had become incompetent & so remedy would lie only before election tribunal--Held: High Court had jurisdiction to decide the petition in the light of recent judgment of Supreme Court on the point of ineligibility of candidate--Writ was accepted accordingly. [P. 349] A
Constitution of Pakistan, 1973--
----Arts. 225 & 199--Punjab Local Government Election Rules, 2005, R. 65--Election dispute--Held: Constitution did not provide any provision for Local Council Election disputes, so R. 65 of the Election Rules, 2005 could not be equated with Art. 225 of the Constitution in any sense--Yet in certain circumstances High Court could interfered in its constitutional jurisdiction. [P. 350] B
Constitution of Pakistan, 1973--
----Art. 189--Decision of Supreme Court--Effect of--Held: Any decision of Supreme Court to the extent that it decided a question of law or was based upon or enunciated a principle of law would be binding on all other Courts in Pakistan. [P. 352] D
Punjab Local Government Ordinance, 2001 (XIII of 2001)--
----S. 152(1)(e)--Punjab Local Government Election Rules, 2005, R. 3--Qualification of candidates--Held: Election Laws made it incumbent on the Chief Election Commissioner & other Election Functionaries to ensure elections fair, just & in accordance with law--District Returning Officer accepted the nomination papers of respondents despite of their disqualification--It could not be countenanced as helpless onlooker on the ground that Election Tribunal would take care at the appropriate stage & in the meanwhile they be allowed to reap the benefits of their disqualification. [Pp. 350 & 351] C
Mr. Muhammad Farooq Qureshi Chishti, Advocate for Petitioners.
Mr. Muhammad Ramzan Chaudhary, Advocate for Respondents Nos. 1 and 2.
Date of hearing: 6.9.2005.
Order
Petitioners were candidates in election for Nazim and Naib Nazim to the Union Council No. 37 District Khushab. Respondents Nos. 1 and 2 also filed their nomination papers for the same offices. Petitioners Nos. 1 and 2 filed objections at the time of scrutiny of their nomination papers. The objections were accepted and nomination papers of Respondents Nos. 1 and 2 were rejected by the learned Returning Officer vide his order dated 23.7.2005, holding that Respondent No. 1 was not qualified in terms of clause (1)(e) of Section 152 of the Punjab Local Government Ordinance, 2001.
Respondents Nos. 1 and 2 filed an appeal before the learned District Returning Officer Khushab who vide order dated 27.7.2005, accepted the appeal and Respondents Nos. 1 and 2 were permitted to contest the election. The present writ petition has been filed to impugned the order dated 27.7.2005 passed by the learned District Returning Officer.
The learned counsel for the petitioner contended that sub-section (1)(e) of Section 152 clearly lays down that "A person shall qualify to be elected or to hold an elective office or membership of a Local Government, if he has academic qualification of not less than matriculation secondary school certificate or equivalent from a recognized institution, for contesting the election of a Nazim or a Naib Nazim." Learned counsel submits that Respondents Nos. 1 and 2 have annexed with their nomination papers "Sanadats" which are not issued by any recognized institution. According to him the "Sanadats" were issued by Ittehad Al-Madaris Al-Arabia Pakistan, Darul Alum Islamia Anwarul Alum Powerati Mardan. Learned counsel in this regard produced a letter of Higher Education Commission Islamabad dated 7.4.2001. According to the learned counsel for the petitioners respondents were not qualified in the above terms, therefore, they were disqualified to contest the election. The learned counsel pointed out some other disqualification of Respondents Nos. 1 and 2 but his main focus and decisive attack remained on disqualification mentioned above.
The Respondents Nos. 1 and 2 were noticed on 3.8.2005 and the case was fixed for 8.8.2005. On 8.8.2005 respondents did not appear, the case was adjourned for 10.8.2005. On 10.8.2005, on the request of Ch. Muhammad Ramzan, Advocate, appeared for Respondents Nos. 1 and 2 the case was adjourned to 11.8.2005. After arguments of the learned counsel for the petitioner on 11.8.2005, the learned counsel for Respondents Nos. 1 and 2 submitted that on the same point, an appeal was pending before the Hon'ble Supreme Court and the final order was likely to be pronounced soon i.e. on 12.8.2005. In view of the request of learned counsel for Respondents Nos. 1 and 2 the case was adjourned for 15.8.2005. On 15.8.2005, on the request of learned counsel for Respondents Nos. 1 and 2, the case was adjourned to 17.8.2005. Though the decision was announced on 16.8.2005, but copy of the orders was not available on 17.8.2005. It was requested by the learned counsel for the Respondents Nos. 1 and 2 that he was unable to argue his case as copy of the orders was still not available; parties may be allowed to contest the election due on 18.8.2005 (the following day), subject to final decision of the writ petition, in light of the order of the Hon'ble Supreme Court. The case was adjourned to 22.10.2005. For convenience and to rule out any misunderstanding order dated 17.8.2005 is reproduced as below:
"17.8.2005 Presence as before.
I have been informed that a Bench of the Hon'ble Supreme Court, presided by the Hon'ble Chief Justice of Pakistan, sitting at the Lahore Registry, have announced their final order on the same point. On the other hand, the election is due tomorrow i.e. 18.8.2005. In such situation, I have no option except to keep pending this petition before me and allow parties to contest election which will be subject to order of this Court in this writ petition which will be taken in the light of order of the Hon'ble Supreme Court, as ordained in Article 189 of the Constitution. Adjourned to 22.8.2005."
"22.8.2005.
Adjourned to 6.9.2005, as agreed."
On 6.9.2005, the learned counsel for the Respondents Nos. 1 and 2 submitted that Respondents Nos. 1 and 2 had been declared returned candidates. He further submitted that respondents are matriculate and added that they have passed additional subjects of English, Urdu and Islamic Studies, therefore, the requirement of Section 152(1)(e) of the Punjab Local Government Ordinance, 2001 has been fulfilled. He sought time to produce the required result which has not been produced till to-date despite above statement. He also submitted that after the notification of result of election, the writ was not competent and the petitioners should now approach to the concerned Election Tribunal to seek their remedy.
On the other hand, the learned counsel for the petitioners submitted that proceedings in this writ petition before this Court started prior to the election. He also submitted that parties bound themselves that election result would be subject to the final order of this writ petition to be delivered in the light of the judgment of the Hon'ble Supreme Court as it is evident from the order-sheet. He added that the learned counsel for the Respondents Nos. 1 and 2 is estopped at this stage to submit that this Court is denuded of power to decide this writ petition. He further submitted that impugned order which was passed by the learned DRO was illegal at the very outset and there was hardly any reason for any factual inquiry, therefore, this Court was competent to decide this writ petition and is still competent. He also submitted that this Court is also under obligation to decide this writ petition in light of judgment on the same point of Hon'ble Supreme Court dated 16.8.2005 in civil petition for leave to Appeal No. 1569-L of 2005 and five other petitions.
I have heard the learned counsels. As already mentioned in the foregoing paras, particularly order dated 17.8.2005, and 22.8.2005, the learned counsel for Respondents Nos. 1 and 2 categorically requested that he would be bound by the decision of this Court to be decided in the light of the order of the Hon'ble Supreme Court on the same point in the above mentioned case. He also requested that he needed to read judgment of the Hon'ble Supreme Court to address this Court. It is not appropriate for him to contend that since Respondents Nos. 1 and 2 have been notified as successful candidates, therefore, this writ petition should be disposed of and petitioners may seek their remedy from the Election Tribunal. The case, on 17.8.2005 was adjourned on his request as, according to him, certified copy of the order of Hon'ble Supreme Court was not available. On 17.8.2005, this Court knew that Election Tribunals would be constituted and this fact was also known to the learned counsel for the parties, including the learned counsel for Respondents Nos. 1 and 2 yet the learned counsel for Respondents Nos. 1 and 2 made a request that the parties be allowed to contest election and the result of election would be subject to the final decision of this Court. Therefore, in view of the peculiar features of this case, narrated above in detail, this Court has jurisdiction to decide this matter in light and guidance of the recent decision of the Hon'ble Supreme Court delivered on 16.8.2005. However, before that, some earlier decisions of Superior Courts are proposed to be discussed as earlier.
On powers of High Court to issue a writ of certiorari the Hon'ble Supreme Court in Rahim Shah's case held as under:
"PLD 1973 SC 24"
"Cases of no evidence, bad faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings under taken by the tribunal on this ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior tribunal in support of some point material to the conviction or order, certiorari will be granted."
In the present case, the learned DRO passed impugned order clearly in disregard of provisions of Section 152(1)(e) of the Punjab Local Government Ordinance, 2001. Not only that, the learned counsel for Respondents Nos. 1 and 2 requested this Court that this case be not decided until the certified copy of the order of the Hon'ble Supreme Court is available and gone through, though he knew very much, that after election i.e. 18.8.2005, Election Tribunals would be in place. So if the request of the learned counsel for Respondents Nos. 1 and 2 was allowed, should he now be permitted to back out?" Would it not mean to allow some thing unfair and unjust and taking undue advantage of accommodation shown by this Court on request of the learned counsel for Respondents Nos. 1 and 2 on 17.8.2005? This would not be allowed to happen in the honour, and majesty of the law as well as this Court.
The Hon'ble Dacca High Court held in a case where parties had bound themselves to refer the matter to the Arbitrator. Subsequently one party tried to challenge the impugned order strictly on legal grounds, the Court held as under:
"The parties having agreed to refer the dispute to arbitration took the matter outside the ambit of legal rights. Their agreement to refer the dispute to an Arbitrator implies consent to have the disputes settled without reference to strict legal provisions. (Abdul Halim vs. Faizunnessa Bibi (PLD 1969 Dacca 670).
"In view of the above peculiar features, the above noted case is distinguishable from the present case. In the above report, the minority view was rendered by one of us, Nasim Hassan Shah, J. (as he then was), in which it was held that the order of the Returning Officer altering the approved list and substituting it with a new list of the staff was without jurisdiction and the same was fit for interference under Article 199 of the Constitution. We are inclined to hold that the appellant's above Constitutional petition was competent and the High Court by declining to exercise its Constitutional jurisdiction for the reason quoted hereinabove has failed to exercise jurisdiction vested in it."
Section 152 of the Punjab Local Government Ordinance, 2001 and Election Rules, 2005, particularly Rule 3 of the Punjab Local Government Election Rules, 2005, make it incumbent on the Chief Election Commissioner and other Election Functionaries to ensure that elections are held fairly and justly and in accordance with law. In this context to ensure strict observance of provisions of Section 152(1)(e) was duty of the learned District Returning Officer. However, the Respondents Nos. 1 and 2 managed to get their nomination papers accepted despite their disqualification detail of which has been mentioned in the preceding paras. The mandate of the law is very clear, therefore, it cannot be countenanced as helpless onlooker on the ground that election tribunal shall take care at the appropriate stage and in the meanwhile, the Respondents Nos. 1 and 2 be allowed to reap the benefits of their disqualification etc.
In another case, a Division Bench of this Court held as under:
"It is a settle principle of law that where ever this Court finds order by any Tribunal, Court, or authority as without jurisdiction or in excess of jurisdiction or in manifest breach of some law, this Court has jurisdiction to come to the help of the petitioner and set aside such order in Constitutional jurisdiction." (NLR 1992 Civil 696).
"I regret my inability to agree with this contention of the learned counsel. In quo-warranto proceedings the validity of the notification can be questioned and the mere fact that an elected person is in possession of a notification declaring him to be elected cannot divest this Court of its jurisdiction to determine the validity of the notification itself."
In the instant case the disqualification was challenged before this Court before the election was held and it remained pending on request of the learned counsel for Respondents Nos. 1 and 2 to await the order of the Hon'ble Supreme Court. The details of which have already been given and not required to be repeated. It would be sufficient to state that the present case is at better footing than the case mentioned above. So, even if this writ petition is treated as a writ of quo-warranto, challenging the disqualification of the respondents, it can be decided as the Respondents Nos. 1 and 2 have manifestly breached and violated the provisions of Section 152(1)(e) and suffering disqualification to held public office, their success or notification of their success cannot bar this Court to decide the present case.
Hon'ble Supreme Court, giving its final verdict in CPLA No. 1569-L of 2005 alongwith other five petitions decided on 16.8.2005, has held in its para 28 as under:
"Thus, it is concluded that:--
"(i) If `Sanad' i.e. Shahadat-ul-Aalmia-Fil-Uloom-ul-Arabia-Wal-Islamia obtained by a candidate from a "Deeni Madrasah" (seminary), which is duly recognized by UGC/HEC and its holder had passed examination of additional subjects as it has been mentioned in Notification dated 17th November 1982 (No. 8-418/Acad/82/128) issued by UGC/HEC and equivalence certificate has also been issued by Higher Education Commission under Section 10(o) of the Higher Education Commission Ordinance, 2002, then it is acceptable for the purpose of employment and for any other purpose including the Elections of Local Government.
AND
(ii) `Sanad' of Shahada-tul-Sanvia-tul-Aama (SSC) and Shahada-tul-Sanvia-tul-Khasa (HSSC), if obtained by a candidate from recognized "Deeni Madrasha" by UGC/HEC and he has also passed examination of English, Urdu and Islamic Studies, from any Board of Intermediate and Secondary Education and had obtained equivalence certificate from IBCC, in pursuance of Notification No. IBCC/ES/Misc/1219 dated 21st July 2005 read with Notification No. F. 5-5/90-JAE(CW) dated 22nd April, 1990 he shall be qualified to contest the Local Government/Elections, according to the provisions of Section 152(1)(e) of Punjab Local Government Ordinance, 2001."
(J.R.) Petition allowed.
PLJ 2006 Lahore 353
Present: Muhammad Jehangir Arshad, J.
SHAFAQAT KARIM--Petitioner
versus
SHAUKAT KARIM--Respondent
C.R. No. 1920 of 2005, heard on 20.9.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O. VIII, R. 1--suit for specific performance--Striking of defense--Validity--While passing impugned order trial Court acted in a most harsh manner resulting in causing prejudice to petitioner as he was entitled to be granted at least one more opportunity for filing of written statement--Trial Court, before passing such orders need to stress Counsel appearing on behalf of defendant to file written statement on very day by administering warning that in case if needful was not done, penal provisions of O. VIII, R. 1 C.P.C. would be invoked and if despite such written warning the written statement was not filed. [P. 356] A & B
Civil Procedure Code, 1908 (V of 1908)--
----O.VIII, R. 1--Words and Phrases--"Ordinarily" amended proviso--Incorporation of word "Ordinarily" in amended proviso to Order VII, Rule-1 C.P.C. also indicates that Legislation was aware of situation that provision would cause hardship to litigant public--Held: Court can grant opportunity to defendant for filing of written statement by burdening him with reasonable costs which would be source of consolation for other party--Revision allowed. [P. 357] C & D
Syed Ikhtisar Ahmad, Advocate for Petitioner.
Hafiz Ch. Mahmood Tahir, Advocate for Respondent.
Date of hearing : 20.9.2005.
Judgment
With the concurrence of learned counsel for the parties, this case is being treated as a Pacca case and decided as such.
The petitioner who is defendant before the learned trial Court in a suit filed by the respondent for specific performance of agreement to sell dated 1.11.2004, is aggrieved of the order dated 7.6.2005 whereby petitioner's right of filing written statement was closed/struck down by the learned trial Court in terms of amended proviso of Order VIII, Rule 1 C.P.C.
The facts discernable from the record, briefly stated are that the respondent who is real brother of the petitioner filed a suit for specific performance of agreement to sell dated 1.11.2004 against the petitioner on 20.4.2005. The learned trial Court issued notice to the petitioner on the same day i.e. 20.4.2005 for 27.4.2005. The petitioner entered his appearance before the trial Court alongwith his counsel on 27.4.2005 and case was adjourned to 5.5.2005 for filing written statement as well reply to the application for interim relief. On 5.5.2005, written statement was not filed and sought an adjournment which was granted till 12.5.2005. Again, on 12.5.2005 at the request of the petitioner/defendant for filing written statement, the case was adjourned to 21.5.2005 and then to 28.5.2005 for the said purpose, as the last opportunity. The record reveals that on 28.5.2005 the learned Presiding Officer was on leave and the case was adjourned by the Reader to 7.6.2005 and on 7.6.2005 the learned trial Court closed petitioner's right of filing the written statement in terms of amended Proviso (1) to Order VIII, Rule 1 C.P.C. at the expiry of thirty days from appearance of the petitioner/defendant before the trial Court. It is the said order of the learned trial Court dated 7.6.2005, which has now been sought to be annulled through this Civil Revision.
Learned counsel for the petitioner has argued that on 28.5.2005 the case was adjourned in routine and also by the Reader of the Court who had no authority to fix the next date i.e. 7.6.2005 for the purpose of filing written statement. According to the learned counsel, even the tenor of the impugned order shows that no serious attempt was made by the learned trial Court for obtaining written statement from the petitioner and his right of filing the written statement was closed in a mechanical manner and without application of mind to the fact that the requirement of maximum period of thirty days for filing written statement in terms of Proviso (I) to Order VIII, Rule 1 C.P.C., is neither mandator nor can be invoked in every case and by using the word "ordinarily" in the said Proviso the Legislature still reserved the authority of the trial Court to allow further opportunity to the defendant, before closing down the defence. Learned counsel argued that if by grant of more than two adjournment by the learned trial Court itself in violation of Proviso (2) to Order VIII, Rule 1 C.P.C. no prejudice was caused to the respondent, then by allowing one more opportunity to the petitioner for submission of his written statement even by burdening him with costs, the respondent/plaintiff would not have been deprived of any legal right, whereas the same would have promoted the cause of justice, which is the ultimate object of Civil Procedure Code. Learned counsel has contended that Proviso (1) as amended in the year 2002 is meant only for accelerated hearing of the suit and not to be used as a trap for knocking down the defendant by applying it invariably in every case. It is next submitted that the rules framed under Civil Procedure Code are for the advancement of justice and not to defeat the justice. Reliance has been placed on the case "Factory Manager, Burewala Textile Mills And Others versus Asghar Ali and another" (2005 S.C.M.R. 1144). It is lastly argued that as held by this Court in "Liaqat Ali versus Mst. Bashiran Bibi, etc." (PLJ 2005 Lahore 1075 (D.B)), the rules of procedure are intended to foster justice and technicalities, unless these offer insurmountable hurdles, cannot be permitted to operate as a tyrant master.
On the other hand, learned counsel for the respondent/plaintiff has not only supported the impugned order of the learned trial Court but has vehemently argued that conduct of the petitioner being contumacious, hence, the impugned order was rightly passed and by passing the said order, the learned trial Court neither committed any illegality or irregularity nor the same suffers from jurisdictional defect.
I have considered the arguments of learned counsel for the parties and also perused the available record.
To me, one thing is quite clear i.e. negligent conduct of the petitioner by not filing written statement despite obtaining adjournments was narrated above, but at the same time, I am conscious of the fact that the said negligence cannot be solely attributed to the person of the petitioner, rather it is equally attributable to the conduct of his counsel also, who had been appearing before the trial Court and obtaining adjournments unmindful of the fact that after amendment in Order VIII, Rule 1 C.P.C. obtaining opportunities for filing of written statement in a mechanical manner and without span of time, is no more rule of law or practice. At the same time, after incorporation of the said amendment, the learned trial Court was also obliged to ensure that the amended provision is followed strictly and adjournment within a period of thirty days not to be granted in a mechanical manner and without putting the defendant at notice about the rigors of penal amended provision of Order VIII Rule 1 C.P.C. which inter-alia provide that not more than two adjournments shall be granted for presenting the written statement but in the instant case, the learned trial Court continued adjourning the case for more than two occasions, which encouraged the defendant/petitioner not to comply with the requirement of filing written statement within thirty days, under the impression that another opportunity like the previous ones, would be granted, hence, to this extent, I also hold the trial Court equally responsible for not enforcing the amended Provision of Order VIII, Rule 1 C.P.C. in strict terms. Had the learned trial Court, while adjourning the case on 21.5.2005 to 28.5.2005, put the petitioner/defendant on notice by striking a warning to him about closure of his right of filing written statement in case of his further default on the said date, definitely the defendant/petitioner would have filed the written statement on the date, so fixed. The object of narrating the above position is to remind the learned trial Court that instead of passing the impugned order on 7.6.2005, the Court should have granted at least one more opportunity to the petitioner/defendant with the warning of closing his right of filing written statement. Although, the trial Court has now been relieved of its duty of extending such type of warning by omission of the word "if so required by the Court" through similar amended but the same does not mean that Court should invoke penal provisions of Civil Procedure Code to trap and knock down the defaulting party with immunity. Despite omission of the above words, the object of Civil Procedure Code, as held by Hon'ble Supreme Court in the case "Factory Manager, Burewala Textile Mills and others versus Asghar Ali and another" (2005 S.C.M.R. 1144) "It is well settled by now that the rules framed in the C.P.C. are for the advancement of justice and should not, as far as possible, be allowed to operate so as to defeat the ends of justice." And also the view of this Court in the case "Liaqat Ali versus Mst. Bashiran Bibi, etc." (PLJ 2005 LHR 1075 (D.B.) "Rules of procedure are intended to foster justice, technicalities, unless these offer insurmountable hurdles, cannot be permitted to operate as a tyrant master" still remains the same and while passing the impugned order the learned trial Court shall follow the same. In the instant case, there is another aspect of the matter also i.e. on 28.5.2005, the learned Presiding Officer of the trial Court was on leave and case was adjourned to 7.6.2005 by the Reader of the Court for the purposes of filing written statement and it is doubtful whether Reader of the Court had an authority to adjourn the case for filing written statement, which is usually considered as a date of hearing and as to whether the Reader of the Court while adjourning the case to 7.6.2005 acted in terms of Order XVII, Rule 5 C.P.C. because as held by the Hon'ble Supreme Court in the case "Kamran Co. and others versus Messrs Modern Motors and another" (PLD 1990 SC 713), "non-compliance of Rule 5 of Order XVII CPC renders the proceedings on the day when the Presiding Officer is absent, as illegal and invalid".
I am therefore, satisfied that while passing the impugned order dated 7.6.2005, the learned trial Court acted in a most harsh manner, resulting in causing prejudice to the petitioner as he was entitled to be granted at least one more opportunity for filing of written statement, especially when the learned Presiding Officer of the trial Court was on leave on 28.5.2005 and the case was adjourned by the Reader to 7.6.2005 without disclosing whether the Reader of the trial Court while adjourning the case to 7.6.2005 followed the procedure of Order XVII, Rule 5 C.P.C. and also that he was so authorized to adjourn the case to 7.6.2005 for filing written statement. Before closing this order, I would also like to point out that in such like case the trial Court before passing such like orders, need to stress the learned counsel appearing on behalf of the defendant to file written statement on the very day by administering a warning that in case if the needful was not done, penal provisions of Order VIII, Rule 1 C.P.C. would be invoked and if despite such a written warning the written statement is not filed, the same fact be written on the file and if possible signatures of the defendant or his counsel be also obtained in order to thwart any apprehension that the defendant might not subsequently take the plea that he was not aware of the fact that in case of non-filing of written statement, newly added provision of Order VIII, Rule 1 C.P.C. would be invoked without immunity. Adoption of such a practice by the trial Court becomes more necessary because most of the members of legal profession are not aware, either of the amendment incorporated in Order VIII, Rule 1 C.P.C. or the consequences ensuing for not strictly adhering to the said amended provisions and it would take some time to put them at the track because till date the practice is to obtain innumerable opportunities without following the span of time provided in the said amended provision and to grant adjournment by the Court in a mechanical manner without taking into consideration the implications of said amendment, that is why, when amended provisions are invoked and the right of filing written statement is closed after span of one month, the said exercise appears to be a bit harsh, although the same is always in accordance with law. Hence, in order to diminish such an impression, it has been considered necessary to direct the trial Courts to adopt above-mentioned practice, as an interregnum arrangement. But, this would never mean that amended provisions of Order VIII Rule 1 C.P.C. shall not be invoked where the defendant acts in a contumacious manner and adopts a stubborn attitude to unnecessarily delay the trial of a suit.
Further it is to be pointed out that incorporation of word "ordinarily" in the amended proviso to Order VIII, Rule 1 C.P.C., also indicates that the Legislature was aware of the situation that invariable application of said provision would cause hardship to the litigant public and in such eventuality the Court can grant opportunity to the defendant for filing of written statement by burdening him with reasonable costs, which would be a source of consolation for the other party.
The upshot of above discussion is that this civil revision is allowed, the impugned order dated 7.6.2005 is set-aside and the petitioner/defendant is granted one last opportunity to file the written statement on or before 30.9.2005, subject to payment of Rs. 5000/- as costs which shall be a condition precedent, failing which this civil revision shall be deemed to have been dismissed and order dated 7.6.2005 shall automatically stand revived.
At this moment, learned counsel for the respondent/plaintiff submits that this being a matter between two brothers, the petitioner is adamant to prolong the proceedings of the suit, it would therefore, be in the interest of justice, if a direction for accelerated hearing of the suit is issued to the trial Court. The learned trial Court shall therefore, ensure that hearing of the suit is completed as early as possible as but not later than 31.3.2006, with a compliance report to the Additional Registrar (Judicial) of this Court.
(A.S.) Revision allowed.
PLJ 2006 Lahore 358
Present: Muhammad Muzammal Khan, J.
SALMA--Petitioner
versus
ADDL. DISTRICT & SESSIONS JUDGE, FAISALABAD and 2 others--Respondents
Writ Petition No. 22062 of 2001, heard on 11.10.2005.
Guardians & Wards Act, 1890 (VIII of 1890)--
----S. 25--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Custody of minor--Father contracted second marriage--Long attachment of minor with mother--Welfare--Minor never went to live with his father (Respondent No. 3) and thus has no intimate relation with him rather both father and sons are alien to each other--Minor is compared to his father is attached with petitioner having lived with her since birth--Attachment of father with his two sons out of his second marriage was not only natural but understandable as he is detached from minor--Right from birth minor is living with mother and this period of spread over about 13 years and to uproot minor from his given and familiar surroundings although permissible but cannot be done as there is nothing on record to suggest that she would be given beneficent treatment by step mother on assumption that he would live with father in presence of her own two minor sons--There was no other better institution than lap of loving mother and there can be no better tutor than mother--Held: Impugned orders was not worth to be shared at cost of health, life and education of minor by forcibly thrusting him to live in hostile and new environment--Petition accepted. [Pp. 360 & 361] A, B, C, D & E
Mr. Shaukat Rafique Bajwa, Advocate for Petitioner.
Respondent ex-parte vide order dated 27.10.2003.
Date of hearing : 11.10.2005.
Judgment
Instant constitutional petition assailed orders/judgments dated 17.7.2001 and 31.10.2001 passed by learned Guardian Judge and learned Additional District Judge, Faisalabad to be declared illegal, void and of no legal consequence whereby petitioner was refused custody of her minor son Saad.
Succinctly, relevant facts are that Respondent No. 3 solemnized his marriage with the petitioner which led to birth of a male child who was named as Saad Relations between the spouses did not remain cordial and resulted in separation. Respondent No. 3 Muhammad Anees filed an application under Section 25 of the Guardian and Wards Act, 1890 for the custody of his minor son Saad. Learned Guardian Judge who was seized of the matter vide his order dated 2.5.1995 dismissed the petition with a direction that he will be entitled to see the minor, after every fortnight. Respondent No. 3 filed an appeal against the order dated 2.5.1995 which was disposed of on the basis of compromise between the parties, to the effect that petitioner will hand over minor to Respondent No. 3, after 12.8.1999 on attaining age of 7 years and in case of failure of the petitioner, Respondent No. 3 shall get custody through process of the Court. During the period of custody by the petitioner, Respondent No. 3 was given right of meeting with the minor on every first Monday of each month, within the premises of trial Court at 9.00 a.m. to 10.00 a.m. This arrangement was made vide order dated 29.1.1996.
Respondent No. 3 Muhammad Anees filed an execution petition whereon meeting of the minor continued. Petitioner on 29.7.1999 filed an application under Section 25 of the Guardian & Wards Act, 1890 to retain the custody of minor besides praying stay of execution proceedings. Learned Guardian Judge issued a warrant under Section 100 Cr.P.C. for production of the minor but dismissed application of the petitioner under Section 25 of the Act, 1890 vide order dated 9.2.2000. Petitioner assailed this order in appeal where she succeeded as the impugned order was set aside and the Guardian Judge was directed to decide the matter after consolidating petition under Section 25 of the G & W Act, 1890 alongwith execution petition filed by Respondent No. 3 and by deciding afresh, the question of welfare of the minor, before issuing warrants under Section 100 Cr.P.C.
Arrangement for return of custody of the minor by the petitioner dated 29.1.1996 was claimed to have been made on account of second marriage of the petitioner but in the meanwhile, Respondent No. 3 also entered into second tie of marriage with one Mst. Bushra out of whom Respondent No. 3 had two sons and for this reason, he was said to have lost interest in custody of petitioner's minor son Saad. Under the directions of appellate Court contained in order dated 16.3.2000, Guardian Judge framed issues regarding welfare of the minor/restoration of his custody to the petitioner. Parties produced their respective evidence and according to appraisal of evidence by the learned Guardian Judge he dismissed application of the petitioner vide his order dated 17.7.2001 alongwith execution petition of Respondent No. 3.
Petitioner aggrieved of order dated 17.7.2001 filed two separate appeals challenged the order to the extent of her dismissal of petition under Section 25 of the Guardian and Wards Act, 1890 and the other against order regarding warrants under Section 100 Cr.P.C. but she remained unsuccessful as both the appeals were dismissed through appellate judgment dated 31.10.2001. She thereafter filed instant constitutional petition assailing concurrent judgments/orders with the relief noted above. The petition was admitted to regular hearing hence Respondent No. 3 in response to notice by this Court appeared and was represented through Mian Shahid Rasool, Advocate who did not appear on behalf of Respondent No. 3 and consequently ex-parte proceedings were taken against him vide order dated 27.10.2003.
I have heard the learned counsel for the petitioner and have examined the record, appended herewith. There is no cavil about the fact that initially application of Respondent No. 3 under Section 25 of the G & W Act, 1890 was dismissed on 2.5.1995 but on appeal by Respondent No. 3, petitioner agreed to hand over custody of the minor to him after 12.8.1999 as she intended to solemnize second marriage which as a matter of fact was solemnize second marriage which as a matter of fact was solemnized. Respondent No. 3 also entered into a tie of second marriage and had two living sons therefrom and lost interest in custody of his minor son Saad who since his birth is in custody of the petitioner. Petitioner had been looking after his day-to-day needs till attaining the age of 13 years 29 days at present. Concurrent orders of the two Courts below have been impeached mainly on the ground that the petitioner committed to return of custody of her minor son as she intended entered into second tie of marriage but on account of medical problem no child born to her out of this marriage and against it, Respondent No. 3 has two sons out of his second marriage and consequently it was claimed that on the basis of these charged circumstances and strong love/affection between mother and son for long period of 13 years, custody of the minor should be allowed to continue with the petitioner. The other supporting submissions of the learned counsel for the petitioner were that Respondent No. 3 has lost interest with the minor who was also not being paid any maintenance allowance by him hence in view of welfare of the minor, both the impugned orders may be adjudged.
Even though instant petition cannot take place of an appeal, nevertheless it being a guardianship matter, evidence produced by the parties was scanned. Both the divorced spouses have contracted their respective second marriage. Respondent No. 3 has children from his second wife but no such issue was born to the petitioner and she rested/satisfied with brining up of her minor son Saad. Respondent No. 3 had never paid any maintenance allowance to minor Saad who at the present is in 7th class. The minor had been appearing before this Court and his brilliant elect to live with the petitioner is born out from the interim orders of this Court. The minor never went to live with his father (Respondent No. 3) and thus has no intimate relation with him rather both father and sons are aline to each other. The minor as compared to his father is attached with the petitioner, having lived with her since his birth. Attachment of Respondent No. 3 with his two sons out of his second marriage is not only natural but understandable as he is living with them and for this reason also, he is detached from minor Saad. Apparently, absence of Respondent No. 3 and his counsel from proceedings before this Court is deliberate and is aimed at to allow custody of minor with the petitioner.
Viewing welfare of the minor, there is no doubt about it that the same shall be provided by the petitioner with more devotion. I have no doubt in my mind that there is no other better institution than a lap of a loving mother and there can be no better tutor than the mother. There is nothing on record to show the nature of the woman, to whom the father of the minor has married the second time e.g. whether she is of the type to take proper care of a step-child. Our experience about step-mothers in this society is not very healthy, especially when the step-mother has her own children out of her marriage with father of the child. Besides it, I cannot loose sight of the fact that right from birth the minor is living with the mother and this period is spread over about 13 years and to uproot the minor from his given and familiar surroundings although permissible but cannot be done in this case as there is nothing on record to suggest that she would be given beneficent treatment by step-mother on the assumption that he would live with father in presence of her own two minor sons. Inspite of sitting in constitutional jurisdiction, I would not like to consign the minor to uncertain environments and surroundings, as done by the two Courts below. I feel it in-evitable to intervene to undo the orders which would result in prejudice to the future/personality of the minor and would work against his welfare.
I am cognizant of the remarks in the impugned judgments that petitioner is living/putting up with a person who has 4/5 children from his previous wife but these findings did not disturb me while concluding as per foregoing paragraphs, for multiple reasons. First of these is that 4/5 children living in house of the petitioner are not from her womb and in the second place, she has no other off spring of her second marriage and the last but not the least is that minor Saad has lived and survived in those environment, during his crucial period of life of 13 years whereafter he having attained sensible age, can pull his life to his practical era. Above all, the view formed in support of the impugned orders is not worth to be shared at the cost of health, life and education of the minor by forcibly thrusting him to live in hostile and new environments.
For all the reasons noted above, I accept this petition and declare both the orders dated 17.7.2001 and 31.10.2001 passed by Respondents Nos. 1 and 2 to be illegal, void and of no legal consequence with the result that initial order of Respondent No. 2 dated 2.5.1995 stands revived whereby petition under Section 25 of the Guardian & Wards Act, 1890 filed by Respondent No. 3 was dismissed.
It is, however, clarified that notwithstanding adjustment of impugned orders, subject to law it will be open to the father (Respondent No. 3) to approach the Guardian Judge afresh for seeking orders ensuring better
education etc, meant to promote welfare of the minor, after discharge of his liabilities regarding payment of maintenance allowance etc. With these observations, writ as prayed is issued with no order as to costs.
(A.S.) Petition accepted
PLJ 2006 Lahore 362 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
QAMAR-UZ-ZAMAN--Petitioner
versus
MUHAMMAD SIDDIQUE--Respondent
Civil Revision No. 99-D of 1995, heard on 27.1.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Limitation Act (IX of 1908), S. 15--Specific Relief Act (I of 1877), S. 9--Suit for possession filed by respondent decreed by trial Court--Appeal dismissed--Assailed--Validity--Marginal witnesses of agreement filed affidavits that neither agreement was executed in their presence nor any payment was made--Petitioner himself admitted that attesting witnesses had filed affidavits--Scribe of agreement admitted that parties and attesting witnesses were not known to him--Held: Execution of the documents has not been proved--Admittedly respondent was allottee of plot, he paid the entire price and possession was delivered to him--Order A.D.J. not liable to be interfered within meaning of Section 115 C.P.C.--Revision dismissed. [Pp. 364 & 365] A, B, C, E & F
(ii) Limitation Act, 1908 (IX of 1908)--
----S. 15--Specific Relief Act (I of 1877), S. 9--Suit for possession--Decreed by both Courts--Respondent not vested with title, suit filed beyond period of six months of date of dispossession was barred by time--Contention of--Petitioner filed suit seeking injunction that he be not dispossessed on which was dismissed in view of statement made by Counsel for respondent--Section 15 of the Limitation Act the stipulated period would be excluded--Held: Suit is covered by Section 9 of the Specific Relief Act, 1877, after excluding the said period of time, it would be within time prescribed in provision of law. [P. 364] D
NLR 1992 SCJ 561.
Malik Javed Akhtar Wains, Advocate for Petitioner.
Syed Kabir Mehmood, Advocate for Respondent.
Date of hearing : 27.1.2005.
Judgment
On 30.9.1986 the respondent filed a suit against the petitioner. In the plaint, it was stated that the plot described in the plaint stood allotted to the respondent by Housing and Physical Planning Department and the entire price has been paid in installments. In the year 1980, the respondent had gone abroad and had authorised his brother Abdul Hameed to act on his behalf in the Housing Department. In January, 1986, he was informed by his brother that a few days ago, the petitioner has forcibly occupied the plot. The criminal proceedings were lodged whereupon the petitioner filed a civil suit. In the civil suit, the plea taken was that the petitioner is in possession on the plot under the agreement dated 24.4.1980 between the parties. An injunction was sought that his possession be not disturb. The learned counsel for the respondent made a statement that he will not be dispossessed other than in due course of law and the suit was accordingly dismissed. It was stated that the agreement is forged and fabricated and that he was not even present in Pakistan on the date when the document was stated to have been executed. He also claimed Rs. 500/- per month by way of compensation for use and occupation. The petition in his written statement admitted that the respondent is an allottee. He also admitted the factum of filing of the suit by him and its disposal. He asserted that the respondent received Rs. 50,000/- by way of consideration and executed agreement dated 24.4.1980 in his favour and delivered him the possession and he is liable to transfer the plot to him. By way of amendment an objection was ruined that the suit is covered by Section 9 of the Specific Relief Act, 1877 and having been brought beyond the period of six months from dispossession is barred by time. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit vide judgment and decree dated 23.5.1993. A learned ADJ, Burewala, dismissed the first appeal filed by the petitioner on 27.11.1994.
Learned counsel for the petitioner contends that the agreement was duly proved alongwith the payment of consideration. The respondent having not been vested with title, the suit could have been filed only under Section 9 of the Specific Relief Act, 1877 and admittedly having been brought beyond six months of the date of dispossession, it was barred by time. It has also been argued that the person who filed the suit had no authority to do so. The learned Counsel for the respondent, on the other hand, contends that there is no evidence of the execution of the agreement on the record. According to him, there is no dispute that the entire price has been paid by the respondent to the said Department and possession was delivered to him and such the suit was competent under Section 8 of the said Act. Further states that the suit was filed by the brother of the respondent who was duly authorized by means of the registered power of attorney, copy whereof is on the record.
I have gone through the copies of the records, with the assistance of the learned counsel for the parties. The original agreement was produced in Court through DW-2 Hafeez Ullah who produced the file of criminal case wherein the agreement dated 24.4.1980 was present. This very witness stated that Mirza Amir Baig and Shahid Gulzar are the attesting witnesses and both of them filed affidavits, present in the file, to the effect that neither the agreement was executed in their presence nor any payment was made. The petitioner while appearing as DW-5 was confronted and he admitted that he said attesting witnesses had filed affidavits controverting his plea. This leaves DW-4 Nazir Ahmad who is Scribe of the agreement. He admits that he did not know any of the parties and neither does he know the attesting witnesses. He says that he is not maintaining any register, neither he is possessed with the relevant licence. He further admits that he did not ask any of the said persons to show him their identity cards. DW-3 is the Stamp Vendor Muhammad Mushtaq. In his cross-examination, he stated that he did not know the respondent personally neither he obtained any identity document of the person purchasing the stamp. Regarding his register, he stated that the same has been lost.
Having gone through the said evidence, I do find that the learned Courts below have very correctly held that the execution of the said document has not been proved by the petitioner.
Now coming to the said second contention of the learned counsel for the petitioner, I do find that, admittedly, the respondent was the allottee of the plot. He has paid the entire price vide receipts Exs. P.2 to P.10. The possession has been delivered to him through his brother and attorney vide Ex. P. To my mind the learned counsel for the respondent has correctly argued that the respondent is possessed of sufficient title to bring the suit. I further find that it is the stated case of the petitioner himself that the possession was delivered to him by the respondent. There is another aspect of the matter as well, if is an admitted fact that the petitioner filed a suit on 12.1.1986 inter alia, seeking an injunction that he be not dis-possessed. The suit remained pending till 3.7.1986 when it was dismissed in view of the statement made by the learned counsel for the respondent. To my mind, the provision of Section 15 of the Limitation Act, 1908, and the principle underlying the same would definitely come into play and the said period of time i.e. from 12.1.1986 to 3.7.1986 would be excluded. Thus, even if it be assumed that the suit is covered by Section 9 of the Specific Relief Act, 1877, after excluding the said period of time, it would be within the time prescribed in the said provision of law. In somewhat similar circumstances, in this case of Investment Corporation of Pakistan Syed Jamaat Ali Shah and another (NLR 1992 SCJ 561), the Hon'ble Supreme Court of Pakistan reversed a finding to the contrary recorded by this Court and held that where a temporary injunction had been issued on the instance of a borrower, the suit filed by the lending agency would be within time after excluding the period during which the said suit for injunction remained pending with a temporary injunction in force.
So far as the said third contention of the learned counsel is concerned, the copy of the power of attorney is available at page 98-A of the paper book. The date of execution is not discernible but it was registered on 22.12.1986 in Pakistan. It appears to have been executed in the State of Oman. The basis of the argument is that it will be deemed that the document was executed on 22.12.1986. Now the document having been executed out of Pakistan could have been registered in accordance with the provisions of Section 26 of the Registration Act 1908. Since there is no dispute that the document was registered, it shall be deemed that it was registered within four month after the document came in Pakistan. According to Section 47 of the Registration Act, 1908, the register document is to operate from the date of its execution and not from the time of its registration. To my mind, the decision of the learned ADJ in the matter of competency of the person filing the suit would not be liable to be interfered with within the meaning of Section 115 CPC.
No other point has been urged. The civil revision dismissed leaving the parties to bear their own costs.
(M.R.A.) Revision dismissed.
PLJ 2006 Lahore 365
Present: Muhammad Akhtar Shabbir, J.
Mst. C. GABRIEL alias SHAMIM--Petitioner
versus
MEMBER (JUDICIAL-III), BOARD OF REVENUE PUNJAB, LAHORE and another--Respondents
W.P. No. 8516 of 2003, heard on 24.3.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XLVII, R. 9--Costitution of Pakistan, 1973, Art. 199--Second review petition--Maintainability of--After dismissal of first review petition, second application on the same grounds and against the same order could neither be entertained nor adjudicated--Held: No express prohibition for second review in West Pakistan Board of Revenue Act, 1957, yet the Act did not either expressly or impliedly exclude general principle res-judicata and rule of finality of judgment--Except for correction of clerical or arithmetical mis-take or accidental slips or omissions in the decision. [P. 369] C
1994 CLC 966.
(ii) Constitution of Pakistan, 1973--
----Art. 199--Land of petitioner fraudulently got transferred by Halqa Patwari--Criminal case lodged by petitioner--Conviction awarded maintained upto Supreme Court--Petitioner made application to M.B.R. for implementation of order of Special Judge Anti Corruption--As per direction of M.B.R. the petitioner moved to the Addl. Commissioner through revision petition who directed her to file appeal before collector--Petitioner filed two review petitions before M.B.R.--Acceptance of--Respondent's review applications were with drawn but fresh review petitions were accepted--Challenge to--Validity--In view of observation of the criminal Court, it was the legal function of the hierarchy to review the mutation--By concealing to dismissal of his earlier review petitions, respondent filed subsequent review petitions which were incompetent--Writ accepted and impugned order of M.B.R. declared to have been passed illegally and without lawful authority. [Pp. 368 & 369] A, B & D
1995 CLC 966.
Ch. Nazar Hussain and Mr. Muhammad Arif Raja, Advocates for the Petitioner.
Malik Yousaf Farooq, Advocate for Respondent No. 2.
Ch. Muhammad Suleman, Addl. Advocate General.
Date of hearing : 24.3.2005.
Judgment
Briefly the facts giving arise to the present writ petition are to the effect that the petitioner is owner of 326 Kanals 17 Marlas of land in village Saidpur Tehsil Depalpur District, Okara, being a female and permanent resident of City, Lahore not in a position to manage and control her land. She leased the land through an agreement to Muhammad Ishtiaq, Respondent No. 2, for a period of five years w.e.f. Kharif 1993 to Rabi 1998 at the rate of Rs. 45,000/- per year as lease money. In this respect a mutation of lease on the revenue record on 4.1.1993 had been entered.
On 5.9.1995 the Circle Patwari named Muhammad Ali had entered a false entry at Serial No. 5 in register Roznamcha Waqiati showing G.F. Gabriel being attorney of the petitioner, who appeared before him stated that he has soled the land measuring 126 Kanals 19 Marlas for a consideration of Rs. 4,00,000/- to four persons Muhammad Ishtiaq, Kamal Din, Muhammad Ismail and Mst. Sikana, wife of Muhammad Ali on the basis of Roznamcha Waqiati Mutation No. 251 has been entered/sanctioned on 28.11.1996. While it will not be out of place mentioned here that attorney of the petitioner had died on 21.11.1996 earlier then the attestation of mutation.
The Respondent No. 2, Muhammad Ishtiaq had made an exchange of 200 Kanals of land through a forged exchange deed dated 25.9.1995 with a plot of one Kanal situated in Chak No. 2/4-L, Cooperative Housing Society, Okara. The exchange deed has also been entered in report Roznamcha Waqiati No. 44 dated 1.10.1996 and in this contest a Mutation No. 271 had also been attested on 2.10.1996. Soon after this illegal attestation of the mutation one Mst. Najma a co-sharer in the property and Mauza Saidpur made a complaint to the Addl. Deputy Commissioner (Consolidation), who called for a report from the filed staff. The Consolidation Officer solicited permission to review the mutation because these were attested an absence of the owner of the land, in agreeing with the report of the Consolidation Officer, the Collector Consolidation accorded the permission this order was challenged by Respondent No. 2, in revision before Addl. Commissioner, Lahore, but later on made a statement to the effect that he does not want to the review petition which was consigned to the record vide order dated 29.10.1997.
The petitioner when came to know of the illegal transactions made by Respondent No. 2 got registered a criminal case F.I.R. No. 188/1997 against the Respondents Nos. 2 and 9 others under Sections 420, 468, 471 and 467 PPC read with Section 5(2) of P.C.A. at P.S. Hujra Shah Muqeem, Okara. Respondents Nos. 2 and 3 others the beneficiary had filed W.P. No. 16423 of 1998 for the quashment of the above F.I.R. which was dismissed by this Court on 23.2.1998. This case was tried by the Special Judge Anti Corruption, Lahore it was found that through Mutation No. 251, Muhammad Ali, Patawri a co-accused transferred the land in favour of his wife Mst. Sikana, Muhammad Ismail, brother of Mst. Sikana Bibi, Muhammad Ishtiaq and Kamal Din. The learned Special Judge Anti Corruption convicted the accused persons. The conviction was challenged before the High Court Lahore, through an appeal, which was also dismissed on 16.4.2001. The criminal petitions for leave to Appeals Nos. 121/2001, 134/2001, 174/2001 and 175/2001 were also dismissed by the Hon'ble Supreme Court.
As the village was under consolidation operation, thus the petitioner made an application to the Member Consolidation Board of Revenue for implementation of the order of the Special Judge Anti Corruption, who directed the petitioner to appear before the Addl. Commissioner Consolidated and the petitioner in compliance with the direction of the Board filed a revision petition before the Addl. Commissioner, who directed the petitioner to file appeal before the Collector. The petitioner feeling aggrieved of the order of the Addl. Commissioner file two review petitions before the Member Board of Revenue which had been accepted vide order dated 22.3.2003 by the Member Board of Revenue.
That Respondent No. 2 filed two review applications before Member Board of Revenue Review Petitions Nos. 104/2003 and 105/2003 before the Member Board of Revenue, later on these were withdrawn by the respondent, thereafter the Respondent No. 2 by concealing the fact that his review petitions had already been dismissed as withdrawn filed two fresh review Petitions Nos. 153/2003 and 154/2003 which were accepted by the Member Board of Revenue vide his impugned order dated 31.5.2003. This order has been assailed by the petitioner through the instant writ petition.
I have heard the learned counsel for the parties and perused the record.
It is established on record that the Respondent No. 2 alongwith other his companions including Patawri Halqa, Muhammad Ali was convicted by the Special Judge Anti Corruption for illegally and fraudulently transferring the land of the petitioner in favour of Mst. Sikana Bibi, Muhammad Ismail, brother of her wife's, Muhammad Ishtiaq, Respondent No. 2 and Kamal Din, the conviction had been maintained up to the Apex Court, the Member Board of Revenue has observed that the Collector has allowed review of the Mutations Nos. 251 and 271 vide his order dated 19.2.1997 observing that it was result of fraud and mis-representation in collusion with the field staff.
Under the direction of the Member Board of Revenue, the petitioner has filed a review petition before the Addl. Commissioner Consolidation, who advised the petitioner to move to the Court of Addl. Deputy Commissioner (Consolidation)/the Collector by filing a regular appeal against the said mutation and in compliance with the order, the petitioner filed an appeal before the Collector, who directed to review the aid mutations but the order of the Collector was set aside by the Addl. Commissioner and directed the petitioner to approach the Civil Court for declaring the Mutations Nos. 251 and 271 attested in favour of the Respondent No. 2 and others, as a result of fraud and mis-representation as presumption of truth attached to the judicial verdict which has already attained finality, therefore, in such circumstances the Addl. Commissioner was not competent to direct the petitioner to approach the Civil Court. It was incumbent on the beneficiary of the mutation to get determine the legality and validity of these mutations. In view of the observation of the criminal Court, it was the legal function of the hierarchy to review the mutation. There was no denial to the judgment of the trial Court as well as superior Courts, thus Member Board of Revenue has rightly set aside the order of the Addl. Commissioner vide his order dated 22.3.2003.
The petitioner has once withdrawn his earlier Review Petitions Nos. 104 and 105/2003 on the ground that he has stated before the Member Board of Revenue that he has filed a declaratory suit before the Civil Court, Depalpur for redressal of his grievance. By concealing the fact of dismissal of his earlier review petitions the Respondent No. 2, file subsequent Review Petitions Nos. 153 and 154 of 2003, the subsequent review petitions were incompetent and all these ground for review were available to the petitioner at the time of withdrawal of his earlier review petitions, there is no provisions of law in the West Pakistan Law Revenue Act and Board of Revenue Act for a second review, but also this is fact that there is no bar or restraint in the above referred Act for filing a subsequent review petition before the same authority.
The second review application had been barred by Rule 9 Order 47 CPC which reads ad under:--
Bar of applications:
No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained.
Nothing in this order shall apply to any judgment pronounced or made by the Hon'ble Supreme Court.
The said legal objection has dealt with in case of Muhammad Shafi vs. The Member (Cons.) Board of Revenue and 2 others (1995 CLC 966). The Hon'ble Judge of this Court observed that after dismissal of first review application, second application on the same grounds and against the same order could neither be entertained nor adjudicated. Although there was no express prohibition for second review in West Pakistan Board of Revenue Act, 1957, yet the Act did not either expressly or impliedly exclude general principle res-judicata and rule of finality of judgment. Except for correction of clerical or arithmetical mistake or accidental slips or omissions in the decision.
It has further been observed in his judgment that the grounds for review would be similar to those specified in Order 47 Rule 1 CPC or for other sufficient reasons. The learned counsel for the respondents when confronted with the above legal aspect of the case could not respond.
For the foregoing reasons this writ petition is accepted and the impugned order passed by the Member Board of Revenue an Application No. 153 and 154 of 2003 is declared to have been passed illegally and without lawful authority and of no legal effect.
(M.A.R.) Petition accepted.
PLJ 2006 Lahore 370
Present: Muhammad Muzammal Khan, J.
M. SALEEM AKHTAR--Petitioner
versus
S.H.O. etc.--Respondents
W.P. No. 4858 of 2005, decided on 5.7.2005.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional Petition--Quashing of FIR--Earlier FIR, registered on same set of facts, allegation and occurrence stood cancelled--Re-embarkment upon same matter--Validity--Registered case was duly investigated and was proposed to be cancelled by I.O. under order of concerned Magistrate met fate of its death--On basis of same occurrence, facts/allegations, second, FIR was not permissible, when earlier FIR stood cancelled on basis of Police report u/s 173 Cr.P.C.--Held: FIR on complaint of same person with same set of facts/occurrence was sheer out of colourful exercise of powers u/S. 154 and amounted to misuse of process of law, same was not sustainable--Petition allowed. [P. 371] A, B & C
Syed Zulfiqar Ali Bokhari, Advocate for Petitioner.
Mr. M.A. Ghaffar-ul-Haq, Advocate for Respondents No. 2.
Sh. Tariq Amin Khalid, Advocate on behalf of Addl.A.G.
Date of hearing : 5.7.2005.
Judgment
Petitioner being an accused of FIR No. 22 dated 1.2.2005 under Sections 452, 354, 420, 468, 471, 419, 148, 149 PPC, registered with Police Station Chotiana, District Toba Tek Singh, prayed for quashment on the ground that regarding same occurrence earlier FIR No. 136 dated 7.8.2004 was registered on complaint of Respondent No. 2, which after due inquiry/investigation, was cancelled by the investigating officer (DSP), where after registration of second case on the basis of same set of facts, allegations and occurrence, is misuse of process of law and is contrary to provisions of Section 154 Cr.P.C. Reliance in this behalf was placed on the case of Ch. Waheed-uz-Zaman vs. Jamil and 8 others (1997 P.Cr.L.J. 1167).
Learned counsel for Respondent No. 2 strenuously opposed the petition with the arguments that successive registration of cases on the basis of same occurrence is not barred under law, thus the prayer made by the petitioner cannot be granted. Reliance was placed on the judgment in the case of Wajid Ali Khan Durani and others vs. Government of Sindh and others (2001 SCMR 1556).
I have heard the learned counsel for the parties and have examined the record, appended herewith. Examination of contents of both the FIRs i.e. 136 dated 7.8.2004 and 22 dated 1.2.2005 revealed that both are verbatim reproduction of each other and there is no difference of a word therein. The first case after its registration, was duly investigated and was proposed to be cancelled by the investigating officer, which under the orders of concerned Magistrate met the fate of its death. After cancellation of case, Respondent No. 2 being its complainant could have filed a private complaint under Section 200 Cr.P.C. or could have further challenged the order of cancellation, but he by deserting these remedies opted to have registration of fresh case after about six months through FIR No. 22. Once the petitioner having been declared to be innocent, having not committed any cognizable offence, provisions of Section 154 Cr.P.C. were not available for re-embarking upon the matter on the same facts/allegations. This Court after scanning the case law including judgment by the Honourable Supreme Court in the case of Jamshed Ahmed vs. Muhammad Akram Khan and another (1975 SCMR 149) held in the case of Ch. Waheed-uz-Zaman (supra) that on the basis of same occurrence, facts/allegations, second FIR is not permissible, especially when the earlier FIR stood cancelled on the basis of police report under Section 173 Cr.P.C.
There is no cavil about the proposition that had there been any malpractice by the police or anybody else in registration of first FIR, the subsequent registration of case could have been done, as mandated by the Honourable Supreme Court in the case of Wajid Ali Khan Durani and others (supra). In this precedent case, widows of the deceased were not satisfied with two previous registered FIRs as they had felt that those did not reflect the true facts. In this case, first FIR was registered at the instance of a police officer, who was suspected by the widows of the deceased, being himself accused in the case whereas the second FIR was registered at the instance of a private servant of one of the widows, who was in police custody. In these circumstances, registration of third FIR under the orders of this Court was not interfered, but in the instant case no such circumstance croped up and registration of second FIR, on the face of it, was misuse of process of law.
For the reasons noted above, I am constrained to hold that after cancellation of FIR No. 136 dated 7.8.2004 FIR No. 22 dated 1.2.2005 on the complaint of same person with same set of facts/occurrence, was sheer out of colourful exercise of powers under Section 154 Cr.P.C. and amounted to misuse of process of law, thus the same is not sustainable. This petition is accordingly allowed, FIR No. 22 dated 1.2.2005 registered with police station Chotiana, district Toba Tek Singh, is declared to be void and of no legal consequence and the same is quashed with no order as to costs.
(A.S.) Petition allowed.
PLJ 2006 Lahore 372
Present: Sh. Azmat Saeed, J.
MUBARAZ--Petitioner
versus
ABDUL QADUS and another--Respondents
S.A.O. No. 3 of 2005, decided on 27.4.2005.
(i) Punjab Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 15--Second Appeal--Maintainability of--Premises in question were residential in nature, no second appeal was maintainable--Contention of--Validity--Appellant has been unable to establish that premises were let out for residential purposes and not for commercial use--In first sound of litigation respondent did not object the maintainability of appeal--Before Apex Court also this particular issue was not raised--Contention repelled and appeal was held to be competent. [P. 375] A, B & C
(ii) Sindh Rented Premises Ordinance, XVII of 1979--
----Sec. 2(f)(g)--Punjab Urban Rent Restriction Ordinance (VI of 1959), S. 2(c)--Concurrent findings challenged to--R. No. 1 is the owner of the property while ejectment was ordered on the basis of personal need--Contention of--Validity--Judgment in Sh. Khalid's case is restricted in its application to cases under the Sindh Rented Premises Ordinance and cannot be attracted to the cases involving the applicability of Rent Restriction Ordinance, 1959--Held: Land lord for purpose of Ordinance, 1959 would mean and include any person entitled to receive the rent who cannot necessarily be the owner of the property. [P. 376] D & E
1992 CLC 2307.
(iii) Punjab Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----Sec. 13--Eviction petition of accepted by trial Court as well as appellate Court--Challenge to through second appeal--Validity--Both Courts determined the bona fide personal need of respondents and their concurrent and persistent findings are not open to any exception--No default was committed nor assertion for property's conversion could be established--Courts have competently and justifiably dilated upon the crucial issue--Judgments impugned hardly revealed any ambiguity or illegality misreading or over looking of any material evidence--Appeal dismissed. [P. 377] F, G & H
1992 CLC 2307.
Malik Abdul Wahid, Advocate for Appellant.
Malik Akhtar Hussain Awan, Advocate for Respondents.
Dates of hearing : 24.1.2005, 17, 18, 22, 24 and 25.3.2005.
Judgment
This second appeal calls in question the validity of the judgment dated 11.12.2004 of the learned Additional District Judge, Sialkot, whereby, the appeal filed by the appellant against his ejectment order dated 26.6.2004 was dismissed.
Relevant facts leading to the filing of this appeal are that Abdul Qadoos/Respondent No. 1, filed an application under Section 13 of the Urban Rent Restriction Ordinance, 1959 against the appellant seeking his eviction from the premises in dispute on the ground of damage to the property and its alleged conversion to commercial use from residential without the requisite consent and approval of the landlord. The appellant entered appearance and contested the ejectment petition, inter alia, by denying the relationship of the landlord and tenant claiming that Respondent No. 2 Rana Abdul Sami was in fact and in law the landlord of the appellant. Issues were struck, and evidence was led by the parties, whereafter, vide order dated 21.11.1995, the ejectment petition was accepted and the appeal arising therefrom was also dismissed by the first appellate Court by means of order dated 18.7.1996. Subsequently, the appellant filed SAO No. 172 of 1996, and this Court vide judgment dated 20.2.2002, by accepting the same, set aside both the orders of the Rent Controller and that of the first appellate authority and remanded the case to the Rent Controller with the observation that the Ejectment Petition shall be deemed to be pending before the Rent Controller, where Respondent No. 2 Abdul Sami will not only be entitled to be impleaded as a petitioner, but also to take any other legal ground available under the law to seek tenant's eviction if it had arisen during the proceedings including default in the payment of rent. The learned Judge of this Court also observed that "In this situation, learned first appellate authority was right to observe that both Abdul Qadoos and his brother Rana Abdul Sami were landlords as far the tenant is concerned."
In post remand proceedings, Respondent No. 2 was impleaded as petitioner and additional grounds of personal need as also default in the payment of rent were pleaded. The amended written reply was filed and from divergent the pleadings of the parties, the following issues were framed:
Whether the petitioner is barred by law? OPR
Whether there exists relationship of landlord and tenant between the parties? OPA
2-A whether the respondent/tenant has converted the demise property into commercial one without the permission of the petitioner? OPA
2-B Whether the respondent is defaulter of rent since March 1996 till the institution of the petition? OPA
2-C Whether the disputed house is required to the petitioner for his personal bona fide need? OPA
Relief.
The learned Rent Controller after analyzing the evidence adduced by the parties vide judgment dated 26.6.2004 accepted the ejectment petition holding that the petition was maintainable in law and the relationship of landlord and tenant existed between the parties, the eviction of the appellant/tenant was ordered on the ground of bona fide personal need of the respondent. However, the plea of default in the payment of rent and conversion into commercial unit by the appellant without the consent and prior approval of the respondents were rejected.
Being aggrieved of his eviction ordered by the learned Rent Controller ibid, the appellant preferred an appeal under Section 15 of the Urban Rent Restriction Ordinance 1959, which was dismissed by the learned District Judge Sialkot by means of judgment dated 11.12.2004 with direction that the appellant shall handover the vacant possession of the disputed premises to the respondents within a period of thirty days.
I have carefully examined the respective contentions raised on behalf of both the learned counsel for the appellant as well as the respondents in the light of the relevant provisions of the Ordinance and perused the entire evidence and the record and various orders of the Courts below.
The learned counsel for the appellant strenuously argued that the eviction order affirmed in appeal is not sustainable in law on the ground that plea of bona fide personal need could not be allowed to be raised by the Rent Controller nor the amendment in the ejectment petition could have been allowed. Further asserts that the respondents failed to substantiate the plea of personal bona fide need, and that the evidence led in that context is contradictory. It is added that appellant's ejectment was ordered primarily on the basis of bona fide personal need of the Respondent No. 2 who may be the landlord, but it is the Respondent No. 1 who is the owner of the property and the ejectment order could only be passed on the basis of the personal need of the owner and not any other person who may in law be the landlord. Reliance in this regard was placed on 1992 CLC 2307 Sh. Muhammad Khalid vs. Fakhar ud Din.
conversely, the learned counsel for the respondents has seriously controverted the assertions raised on behalf of the appellant. The learned counsel also raised an objection about the maintainability of this appeal to contend that the premises in question were in fact residential in nature, and hence, no second appeal was maintainable. To supplement this preliminary objection, it was contended that essentially the property was residential and had been let out only for residential purposes and none else, but the appellant without the consent and approval of the respondents converted it as a commercial unit, which does not in any manner affect the residential character of the property, and consequently, no second appeal was competent within the ambit of Section 15 of the Urban Rent Restriction Ordinance, 1959.
First of all I would like to deal with the issue regarding maintainability of the appeal. Admittedly, there is a concurrent finding of fact by both the Courts below that the appellant has been unable to establish that the premises in dispute were let out for residential purposes and not for commercial use. I have scanned the entire evidence and hardly fund any misreading or non reading of evidence so as to persuade myself to interfere with the concurrent finding of fact. Unquestionably, in the first round of litigation, SAO No. 172-1996 was filed by the appellant, wherein, the respondent (who is Respondent No. 1 in the present proceedings) did not object to the maintainability of the appeal. This Court adjudicated upon the matter by exercising its appellate jurisdiction under Section 15 of the said Ordinance. Subsequently, Respondent No. 1 unsuccessfully challenged the said order before the Apex Court, where too, this particular issue was not raised. In this view of the matter, the objection raised by the learned counsel for the respondents is palpably untenable, and I hold that the captioned appeal before Court is quite competent and has to be decided on its own merit.
At this juncture, the learned counsel for the appellant has drawn this Court's attention to the following observation made in Sh. Khalid's case supra:
"Personal need is to be the need of the owner of the property and of none else".
He further argues that admittedly the Respondent No. 1 is the owner of the property, whereas Respondent No. 2 is his brother while the ejectment was ordered purely on the basis of personal need of Respondent No. 2.
(f) "Landlord" means the owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises;
(g) "Personal use" means the use of premises by the owner thereof or his wife (or husband), son or daughter.
"Landlord" means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person or as a trustee, guardian, receiver, executor or administrator for any other person and includes a tenant who sublets any building or rented land in the manner hereinafter authorized and every person from time to time deriving title under a landlord".
"In the instant statute not merely the word "landlord" is defined but the phrase "personal use" is also defined. As per definition, the pristine meaning of the word "landlord" is the "owner of the premises" but the definition goes on to embrace and "include" persons authorized or entitled to receive rent. However, when it comes to "personal use", the Legislature becomes emphatic and exclusively certifies "the use of the premises by the owner thereof or his wife (or husband), son or daughter" (Section 2(g). Thus, wherever the statute confers a right on a landlord to seek eviction on the ground of "personal use" the word "landlord" is used in its elementary or basic sense of the owner of property alone as distinguished from "landlord" in the extended version of those "authorized" or "entitled" to receive rents."
It is thus clear and obvious that judgment in Sh. Khalid's case is restricted in its application to cases under the sindh Rented Premises Ordinance, 1979 and cannot be attracted to the present case involving the applicability of Rent Restriction Ordinance, 1959.
It has been the consistent view of the August Supreme Court of Pakistan and this Court in innumerable cases that landlord for purposes of Ordinance, 1959 would mean and include any person entitled to receive the rent who may not necessarily be the owner of the property. Thus, the contention of the learned counsel for the appellant is repelled.
That in order to prove the bona fide personal need, the respondents filed affidavit in evidence of Respondent No. 2 and that of the attorney of Respondent No. 1. Respondent No. 2 successfully withstood the rigors of cross examination and his stance that the premises in dispute in fact required for the personal bona fide need of both the respondents was not shaken. The attorney of Respondent No. 2 in his affidavit in evidence deposed that the premises in dispute required for bona fide personal use of the respondent. The learned counsel for the appellant has attempted to raise the issue that the said affidavit in evidence pertains only to the personal need of Respondent No.
In this regard, it may be noted that this Court while adjudicating upon SAO 172/1996 clearly observed that both the respondents were the landlords. In addition thereto, it may be stated that the said attorney was not at all cross examined as to the bonafide personal need either of the two respondents and in fact not even a suggestion was not put in this context to the said witness. Contrarily, in the affidavit in evidence filed by the appellant before the Rent Controller, no assertion at all was made that respondent (s) or either of them did not require the property for their bona fide personal use.
Both the Rent Controller and the first appellate Court determined the bona fide personal need of the respondents and their concurrent and persistent findings are not open to any exception being free from any misreading or overlooking of material evidence, I am fortified in my view by the law laid down by the Apex Court in the cases reported as PLD 1982 Supreme Court 218 (Fazal Azim and another vs. Tariq Mehmood and another) and PLD 2001 Supreme Court 158 (Haji Abdullah and 10 others Versus Yahya Bakhtiar).
Reverting to the issue raised by the respondents regarding default in the payment of rent as well as conversion of the premises from residential to commercial, needless to add that, there is equally concurrent finding of fact that no default was committed nor the assertion for property's conversion could be established, therefore, both these issues hardly require any interference by this Court. In nutshell, the Courts below have competently and justifiably dilated upon the crucial issue emerging in this case and the entire evidence appears to have been thoroughly scanned. Judgments impugned hardly reveal any ambiguity or illegality misreading or overlooking of any material evidence so as to warrant interference by this Court.
For the facts, circumstances and reasons enumerated herein above, I do not find any merit in this appeal and dismiss the same accordingly leaving the parties to bear their own costs. The appellant is directed to hand over the vacant possession of the premises to respondents on or before 14th of May 2005.
(M.A.R.) Appeal dismissed.
PLJ 2006 Lahore 378
Present: Ch. Ijaz Ahmad, J.
MALIK BASHIR AHMED--Appellants
versus
NAVEED AAMER RAJA and 6 others--Respondents
F.A.O. Nos. 65, 88 and 94 of 2004, decided on 18.4.2005.
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2--Ad-interim relief was granted to restrianed changing nature property in questoion subject to--Status of said note cannot be decided without recording evidence--Appellant was ready to deposit amount to show his bonafide instead of providing bank guarantee for said amount--Offier is not accepted by counsel of respondents, based on equity will protect the interest of parties to avoid multiplicity of litigation--Impugned order is modified in view of principle laid down by High Court to extent that instead of furnishing of bank guarantee by appellant, qua amount--Appellant was directed to deposit said amount within 15 days--Failed to deposit amount within prescribed period--Restraining order shall be vacated automatically--Appeal partly accepted, two appeals are dismissed--Order accordingly. [Pp. 381 & 382] A, B & C
Mr. Muhammad Afzal Wahla, Advocate for Appellant in F.A.O. No. 65/2004.
Mian Israr-ul-Haq, Advocate for Appellant in F.A.O. No. 88/2004.
Qazi Awais Ahmad, Advocate for Appellant in F.A.O. No. 94-2004.
Date of hearing: 18.4.2005.
Judgment
I intend to decide the following appeals by one consolidated order having similar facts and law arising out of one impugned order of the learned trial Court.
(i) F.A.O. No. 65/2004.
(ii) F.A.O. No. 88/2004.
(iii) F.A.O. No. 94-2004.
"In order to test the bonafide of the plaintiff, he is directed to furnish the bank guarantee to the tune of Rs. 1,70,00,000/- within 15 days of passing of this order. Resultantly this application for the grant of temporary injunction is accepted and Respondents Nos. 1 to 2 and 4 to 7 are restrained for selling changing the nature of the suit property. If the plaintiff fails to furnish the bank guarantee within 15 days, then this petition for the grant of temporary injunction shall be deemed to have been dismissed."
The appellant Malik Bashir Ahmad being aggrieved filed FAO No. 65/2004. Naveed Aamar Raja and others being aggrieved filed FAO No. 88/2004 and Mst. Saeeda Anwar and others being aggrieved FAO No. 99/2004 against the said order.
The learned counsel of the appellant in FAO No. 65/2004 submits that agreement dated 10.3.2002 was written between the appellants and Naveed Anwar Raja on 6.4.2004, which was signed by the parties on 10.4.2004. Subsequently the date of execution was extended from 9.12.2002 to 9.1.2003 with the mutual consent of the parties. He further submits that Malik Bashir Ahmad, appellant is ready to deposit the amount mentioned by the learned trial Court amounting Rs. 1,70,00,000/- before the Executing Court, in case same shall be invested in some national profit bearing scheme and the learned trial Court be directed to decide the case as early as possible. He further submits that the property in question is not in possession of the appellant, therefore, the impugned order of the learned trial Court is very harsh. In support of his contention, he relied upon "Friends Association vs. Bunni Bank" (PLD 2003 Lahore 17).
The learned counsel of the appellant in FAO No. 88/2004 submits and respondents in FAO 65/2004, submits that the agreement was modified by the parties, therefore, the original terms and conditions of the agreement are changed. In support of his contention, he relied upon side note written in the end of the agreement to sell which is to the following effect:--
URDU
(under line is mine, which is crossed in the contents of side-note of the aforesaid agreement). He further submits that the learned trial Court erred in law to grant restraining order in favour of the appellant, which is not consonance with Section 31 of the Contract Act and Section 92 of Evidence Act, as per laid down by the Superior Courts. In support of his contention, he relied upon "Mohsin A. Rehman vs. M/s. Premier Insurance Co. of Pakistan" (PLD 1967 Karachi 204) and "T.V. Kochuvareed and another vs. P. Mariapps Gounder and others" (AIR 1954 TRA-Co. 10, Vol. 41. CN.5).
The learned counsel of Respondents Nos. 4 to 7 and appellant in FAO No. 94/2004 submits that Respondents Nos. 4 to 7 are not party to the agreement executed between the appellant and Mian Muhammad Ibrahim through his attorney Naveed Aamar Raja on 10.3.2002, therefore, agreement to sell executed between them not binding upon Respondents Nos. 4 to 7. He further submits that original owner has executed agreement with Respondents Nos. 4 to 7 through his attorney Naveed Aamar Raja, therefore, the learned trial Court was not justified to grant restraining order against them, which is not consonance with Section 53-A of the Transfer of Property Act.
The learned counsel of the appellant in FAO No. 65/2004 in rebuttal submits that the learned counsel of the respondents did not read the whole note which is also part of said note, which is as follows:--
URDU
I have given my anxious consideration to the contentions of learned counsel of the parties and perused the record.
It is better and appropriate to reproduce the side note of the agreement to sell and operative part of order of the learned trial Court to resolve the controversy between the parties.
Side Note of agreement.
URDU
Operative part of impugned order dated 9.2.2004 of learned trial Court.
"In order to test the bonafide of the plaintiff, he is directed to furnish the bank guarantee to the tune of Rs. 1,70,00,000/- within 15 days of passing of this order. Resultantly this application for the grant of temporary injunction is accepted and Respondents Nos. 1 to 2 and 4 to 7 are restrained for selling changing the nature of the suit property. If the plaintiff fails to furnish the bank guarantee within 15 days, then this petition for the grant of temporary injunction shall be deemed to have been dismissed."
The aforesaid note does not allow the parties to sell the property in-question to any third party. Therefore, status of the said note cannot be decided without recording the evidence of the parties. The appellant is ready to deposit the Rs. 1,70,00,000/- before the learned trial Court to show his bonafide instead of providing bank guarantee for the said amount. Although, this offer is not accepted by the learned counsel of respondent, which is based on equity which will protect the interest of the parties to avoid multiplicity of litigation, therefore, Appeal No. 65/2004 is partly accepted and order of the learned trial Court is modified, as per law laid down by this Court in "Fateh Muhammad vs. Muhammad Hanif and another" (PLD 1990 Lahore 82), which is also up-held by the Honourable Supreme Court. The relevant observations is as follows:--
In view of the aforesaid circumstances, the appeal is allowed, the impugned order of the learned Judge below is set-aside and defendants are retrained from transferring the land in dispute till the final adjudication is made in the civil suit subject to their depositing the balance sale consideration in the Court within two months from today. In default, injunction shall not operate. However, during the period of two months allowed for the deposit of balance sale price, defendants shall not alienate the land in dispute.
It may be observed that sale price if deposited shall be invested in some profit bearing approved scheme of the Government and final disbursement of the amount plus the accrued benefits shall be regulated by the order of the Court in accordance with decision in the civil suit."
The impugned order of the learned trial Court is modified in view of aforesaid principle laid down by this Court in the aforesaid case to this extent that instead of furnishing of bank guarantee by the appellant (Malik Bashir Ahmad) qua the amount Rs. 1,70,00,000/-, the appellant is directed to deposit the said amount before the learned trial Court within 15-days from today. The learned trial Court shall deposit the same in some national profit-bearing scheme immediately and final disbursement of the amount plus accrued benefits shall be regulated by the order of the Court in accordance with decision in main suit. The party, who succeeds shall be entitled for the said amount alongwith profit. In case, the appellant fails to deposit the said amount with in prescribed period before the learned trial Court, then the restraining order shall be vacated automatically. The judgments cited by the learned counsel of the parties are distinguished on facts and law. It is also settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts, as per principle laid down by the Honourable Supreme Court in "Trusts of Port of Karachi vs. Muhammad Saleem" (1994 SCMR 2213).
With these observations, Appeal No. 65/2004 is partly accepted, while other two appeals i.e. FAO Nos. 88 & 94 of 2004 are dismissed. Copy Dasti on payment of usual charges.
(A.S.) Order accordingly.
PLJ 2006 Lahore 382
Present: Sayed Zahid Hussain, J.
SIKANDAR KHAN and 6 others--Petitioners
versus
TAJ--Respondent
Civil Revision No. 466 of 2000, heard on 17.2.2005.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115, O. XLI, R. 25--Specific Relief Act (I of 1877), S. 56--Revision--Agreement to sell--Suit for specific performance of decreed--Appeal accepted--Case remanded--Such context when authentically of judicial proceedings and order of Court in suit are being disputed, denied by respondent--Both parties should have equal opportunity to prove their respective versions by producing such evidence--Held: Truth about compromise between parties referred and recorded by Civil Court need to be unveiled--Fate of suit filed by petitioner hinged upon finding on issue--Both Courts had varient approach to evidence on record--Judgment set aside and case remanded for decision afresh in accordance with law. [P. 384] A, B & C
Mr. Ch. Manzoor Hussain Basra, Advocate for Petitioners.
Mr. Ch. Javed Rasool, Advocate for Respondent.
Date of hearing : 17.2.2005.
Judgment
On the basis of an alleged agreement to sell dated 30.3.1987 claimed to have been affirmed by the Civil Court on 12.6.1998 a suit for Specific Performance thereof was filed by Shahadat Khan deceased predecessor-in-interest of the petitioners, which was contested by the respondent. After trial, the suit was decreed by the learned trial Court vide judgment and decree dated 15.9.1994. Appeal preferred thereagainst by the respondent however was accepted by the learned appellant Court vide judgment dated 6.3.2003. This is revision petition in that context.
The learned counsel for the parties have been heard and material on the record considered.
The learned counsel for the petitioner strongly places reliance upon the statement of the parties made on 12.6.1988 and the order of even date passed by the Civil Court in the earlier suit titled "Taj son of Nawab vs. Shahadat Khan son of Sarang Khan" and contends that the respondent had owned and affirmed agreement dated 30.3.1987 therefore, the finding of the learned appellate Court are contrary to evidence. The learned counsel for the respondent on the other hand denies the worth and authenticity of the same. He disowns even the thumb impression as it appears on the copy of the order sheet dated 12.6.1988 (Ex. P.3).
As mentioned above, the suit was based on agreement dated 30.3.1987 as affirmed by the Civil Court dated 12.6.1988. Prima facie it appears that such a statement was made by the respondent as a result of compromise between the parties. The learned trial Judge had returned findings in favour of the petitioner/plaintiff on Issue No. 4, i.e. "whether the plaintiff is entitled to the decree for specific performance on the basis of agreement dated 30.3.1987 and compromise dated 12.6.88, if so, on what terms? OPP". The findings however, were reversed by the learned Additional District Judge, Gojra, on the appeal preferred by the respondent, who was of the view that the petitioner/plaintiff had not succeeded in proving the agreement dated 30.3.1987, and that the compromise and the order of Civil Court dated 12.6.1988, had been denied by the respondent. In such view of the matter, the learned counsel for the petitioner has offered that the matter may be remanded to the trial Court so that the statement made by the respondent before the trial Court on 12.6.1988 and his thumb impression is proved in accordance with law. In such context when the authenticity of the judicial proceedings and order of the Court in the suit are being disputed and denied by the respondent, I consider it just and proper that both the parties should have equal opportunity to prove their respective versions by producing such evidence as they may like to do. Suffice it to observe that it was observed in North-West Frontier Province Government, Peshawar through Collector, Abbottabad and another v. Abdul Ghaffoor Khan through Legal Heirs and 2 others (PLD 1993 SC 418), that "the entire body of the procedural law is meant for advancement of the cause of justice and not to pose any technical difficulty in the way of the Court to unveil the truth and do complete justice between the litigating parties, for the administration of which alone it has been created." Such an observation was made by the apex Court while considering the scope of the provisions of Rule 25 of Order 41 of the Code of Civil Procedure, 1908 when it was further observed that "the underlying principle and the procedure envisaged thereby regulating the way, for ascertaining the truth as to the factual aspect of the case, with reference to the evidence on the record, with necessary adoption, not forbidden by law, can well be applied to the instant case." To achieve that object by accepting the appeal the case was remanded by their Lordships to the trial Court. Since in the present case the truth about the compromise between the parties referred and recorded by the Civil Court on 12.6.1988 need to be unveiled, the suggestion so made by the learned counsel for the petitioner is found to be reasonable and fair. Suffice it to observe that the fate of the suit filed by the petitioner hinged upon the findings on Issue No. 4 but both the Courts had variant approach to the evidence on the record. Thus the judgments are set-aside and the case is remanded to the trial Court for decision afresh in accordance with law after affording equal opportunity to both the parties of producing evidence in support of their respective pleas. Let the parties enter appearance before the trial Court on 1.3.2005, who will take all possible steps for decision of the suit before the commencement of summer vacation of the year 2005.
The revision petition is accepted accordingly in the above terms. No order as to costs.
(A.S.) Revision accepted.
PLJ 2006 Lahore 385 [Multan Bench Multan]
Present: Fazal-e-Miran Chauhan, J.
TEHSIL COUNCIL TRIBAL AREA, (de-excluded area) D.G Khan through its TEHSIL NAZIM--Petitioner
versus
GOVERNMENT OF PUNJAB through SECRETARY, LOCAL GOVERNMENT & RURAL DEVELOPMENT, CIVIL SECRETARIAT, LAHORE and others--Respondents
W.P. No. 5410 of 2003, decided on 30.5.2005.
Punjab Local Government Ordinance, 2001 (XIII of 2001)--
----S. 116--Constitution of Pakistan (1973), Art. 199--Levying of tax by Tehsil Council, assailed--Respondent Authority directed Tehsil Administration to withdraw such tax--Order of respondent authority impugned by petitioner--During pendency of writ petition, petitioner itself wrote letter to respondent Authority, admitting therein, that levy of tax of all kinds of cement stone, marble stones etc. excavation and transportation, through conveyor belt etc. has been exempted from tax category and further conveyed that petitioner had fully implemented order impugned by petitioner in writ petition--In view of petitioner's admission impugned order was implimented in letter and spirit by petitioner--Subsequently petitioner resiled from its letter and insisted that it can impose tax--Such action of petitioner was again challenged and respondent authority again set aside action taken by petitioner--Such order having not been challenged by petitioner, its writ petition as not competent and was dismissed having become infructuous. [P. 391] A
PLD 1997 Karachi 62; PLD 1971 SC 401; PLD 1975 SC 506; PLD 1958 Lahore 887; PLD 1994 Lahore 175 & PLD 1963 Karachi 319, ref.
Mian Abbas Ahmad, Advocate for Petitioner.
Mr. Abid Aziz Sheikh, Advocate for Respondents.
Date of hearing : 11.4.2005.
Judgment
Through the instant writ petition, the petitioner has called in question the order dated 21.5.2003 passed by the Secretary, Local Government and Rural Development, Civil Secretariat, Lahore.
Brief facts of the case are that the Tehsil Municipal Administration, Dera Ghazi Khan vide notification dated 16.2.2002 levied tax @ Rs. 1/- per bag on the cement. Similarly, Tehsil Municipal Administration, Tribal Area, D.G. Khan through Notification No. 179/TO dated 22.10.2001 levied local tax on cement stone @ Rs. 20/- per ton after inviting objections through the press. Against the said levy, D.G. Khan Cement Factory filed separate appeals which were accepted by Respondent No. 1 vide order dated 7.7.2003 and Tehsil Municipal Administrations were directed to withdraw the notification and levy the taxes/fees after getting approval from the Government as required under Section 116 of Punjab Local Government Ordinance, 2001.
It is argued by learned counsel for the petitioner that consequent to the promulgation of Punjab Local Government Ordinance, 2000, Respondent No. 1 issued notification dated 6.10.2000, whereby, the Revenue Estate including existing De-excluded are of D.G. Khan was declared as Tehsil. The Tehsil Council proposed certain taxes on different items under Local Government Ordinance, 2000. It got published citation in daily Nawa-e-Waqt dated 27.8.2001 calling upon the objection as required under the rules. Respondent No. 2, D.G. Khan Cement Factory filed its objection and requested for withdrawal of proposal regarding levy of taxes on gypsum, lime stones and other mineral being lifted or excavated from within the jurisdiction of De-excluded, which are being used in the manufacturing of cement. This objection was rejected by the committee and notification regarding charging of taxes was issued, against which appeals were filed before Respondent No. 1, who vide impugned order directed the petitioner to withdraw the notification. He further argues that the petitioner can propose and levy tax under the Punjab Local Government Ordinance, 2000. According to the definition Municipal Services defined under Section 2(xxii) are:--
"Municipal Services include, but no limited to intra city or intra or inter-town or Tehsil network of water supply, sanitation, conservancy, removal and disposal of sullage, refuse, garbage, sewer of storm water, solid or liquid waste, drainage, public toilets, express ways bridges, flyovers, public roads, street, foot paths, traffic signals, pavements and lighting thereon public parks gardens, arboriculture, landscaping, bill boards, hoardings, fire fighting land sue control zoning master planning, classification declassification or reclassification of commercial or residential area, markets, housing urban or rural infrastructure environment and construction, maintenance or development thereof and enforcement of any law or rules relating thereto".
Similarly the taxes have been defined in sub-section (xxxi) of Section 2.
Section 18 and Section 39 are relatable to propose of taxes by Zila Council/District Government specified under Part-I of the second schedule.
Section 54(1) empowers Tehsil Municipal Administration to propose taxes, cess. User fees, rates, tolls charges, levies, fines and penalties under Part-II of the second schedule for approval of the Tehsil Council and notify the same after such approval.
Sub (m) of Section 54 empowers the Tehsil Municipal Administration to collect, all this approved taxes etc. notified after such approval.
Section 57 deals with the powers and functions of Tehsil Council, wherein, the same powers have been conferred on the Tehsil Council.
According to schedule second, Article 111(1) of un-amended Local Government Ordinance, 2001 the petitioner rightly approved the taxes on the excavation of the lime stone, gypsum and other mineral and even on the other items. All these taxes fall within the ambit of the services being provided by the Tehsil Administration to the public at large which has been elaborated under sub-section (xxii) of Section 2 and have nothing to do with other taxes paid by the tax payee to other Government departments.
Keeping in view the above mandatory provisions of law and even keeping in view the amendment in second schedule in Part-I of the Punjab Local Government (fifth amendment) Ordinance XXXV of 2002 dated 24.6.2002, the order passed by Respondent No. 1 is not only oppose the basic spirit of law, but was also without consideration of the relevant provisions of law. Keeping in view the rules of interpretation, Respondent No. 1 did not take into consideration any of the submissions made before him. He did not meet with the situation that the petitioner had been providing services within the peculiar jurisdiction of Tehsil for which the Tehsil Council has been specifically empowered to levy the taxes on the services prescribed under the law. It was further argued that the tax on the excavation and use of stone by the respondents was levied in accordance with the provisions of Section 54 of the Local Government Ordinance and was duly approved by the Tehsil Council on 25.10.2001. It was levied on the services being provided to the respondents in the area by the petitioner such like roads, sewerage, water supply and sanitation. He further argues that as respondents are using the territory which falls within the jurisdiction of the petitioner, they are liable to pay tax under Section 54(1) sub-section (xxii) of Section 2 and in terms of item I of Part-III of the second schedule of the Local Government Ordinance which was imposed in the basis of the definitions provided under the provisions of law the petitioner can impose tax.
Conversely, learned counsel for the respondents argues that in the notice published in daily Nawa-e-Waqt dated 27.9.2001, showing intention to levy a local tax on stones, bajris, gypsum and lime stones. Notice was issued under Rule 4(2)(a) of the Punjab Local Government Taxation Rules, 2001. According to these rules clear 30 days time had to be given for filing of objections, but the notice published in the daily Nawa-e-Waqt fixed last date for filing of objections as 16.10.2001 i.e. only within 18 days. The notice in question was violation of the rules. Objections were filed on 10.10.2001, within 12 days contending that the petitioner has no authority in law to levy the proposed tax were rejected in the meeting held on 20.10.2001. The petitioner notified the levy w.e.f. 1.11.2001 vide notification dated 22.10.2001. Contact was awarded to the contractor for Rs. 43 lacs to collect the said tax. The contractor issued notices on 5.1.2002, 7.1.2002 and final notice dated nil was issued for exorbitant demand of Rs. 150,00,000.00 for the period of five months only. This notification was challenged before the Secretary Local Government of Punjab, who vide his order dated 7.7.2003 accepted the appeal, holding that the petitioner is not competent to levy tax, no rules has been prescribed on the basis of which the said tax on service could be levied. Even otherwise, (without prejudice) under licensing permit rules, it was the power of the District Government and not of the approval of the Government as required by law. The petitioner has no jurisdiction or authority under the law to levy tax on stone, bajri, gypsum and lime stones either under Section 116 or any other provision of the Punjab Local Government Ordinance, 2001. Tehsil Council is authorized to levy such taxes which have been specified in Part-III of Second Schedule of Ordinance, 2001. None of the entries, in the second schedule authorized the petitioner to levy tax on gypsum, stones and bajri etc. He further argues that if it is to consider as service then it should be prescribed by the rules.
The definition of word service' prescribed under sub-section (xxvii) of
Section 2, means "prescribed by rules". Such tax can only be levied by the District Government after getting approval of the Provincial Government, the said levy does not fall within the Entry No.
1 of Part-III of the Second Schedule (local tax on services as prescribed). The wordservice' has been defined by the superior Courts that, "it is performance of labour for the benefit of another or another's command". (Reliance is placed on PLD 1997 Karachi 62). It is further argued that the stones, bajri and gypsum are goods and not services; hence no tax can be levied on these goods.
No service is provided by the petitioner with regard to lime stone, gypsum and cement stone used by the Respondent No. 2. Stones, gypsum and lime stone are excavated from mountains which are a lease with Respondent No. 2 and they are paying heavy amount of lease/rent and surface rent. They are also paying royalty to the Government on these items, such like lime stones and cement stores. The lime stones and cement stones are delivered to the respondents factually through a 6 k.m. long conveyer belt which is built and maintained by the Respondent No. 2 itself, whereas, the gypsum is brought through trolleys which are also managed by Respondent No. 2. All the labour at the site and for transportation is employed by Respondent No. 2. Respondent No. 2 had also constructed and is maintaining a 6 k.m. road from the leased area up to its factory. Absolutely no service is provided by the petitioner in any shape regarding excavation and transportation of lime stone, gypsum and cement stones.
He further argued that, on the other hand, Respondent No. 2 is providing various services to the residents of the petitioner Tehsil Council, as well as, to Tehsil Council D.G. Khan, where the factory and residential area of labour are located. Sections 54(1),(m), 57, 2 (xxii)
(22)(26)(118) are not relevant as no such service is provided relating to use or even excavation of tax on each goods. He further argues that Entry No. 1
Part III of Second Schedule of Local Government Ordinance 2001 as mended on 24.6.2002 the local tax on services as prescribed' defined under sub-clause
(xxvii) of Section 2 of the Punjab Local Government Ordinance, 2001 meansprescribed by rules made under this Ordinance'; meaning thereby that tax on services can only be levied if the rules prescribing the tax on services are made by the Provincial Government. No such rules have been framed, hence, levy of tax on services by the petitioner is without lawful authority and was rightly held so by the Secretary Local Government vide his order dated 7.7.2003.
It is further argued that the petitioner even otherwise has no authority in law to impose the impugned levy. The tax is being levied on goods like lime stones, gypsum, cement stones etc. meaning thereby, the impugned tax is thus in pith and substance an excise duty covered under Entries Nos. 44 and 49 of the Federal Legislative List, Fourth Schedule of the Constitution of Islamic Republic of Pakistan, 1973. Under Article 142(A) of the Constitution power to levy excise duty vests only with the Federal Government and not with the Provincial Government or its delegates. Reliance is placed on 199 SCMR 1402, 1913 SCMR 1342, PLD 1971 SC 401, PLD 1975 SC 506, PLD 1958 Lhr 887, PLD 1984 Lhr 175 and PLD 1963 Karachi 319.
It is urged that Respondent No. 2 falls within the definition of `Corporation', therefore, the petitioner has no jurisdiction to levy tax on the respondent under Item No. 48 of the Federal Legislative List. (Relied on 2000 CLD 1010). It is further argued that Secretary, Local Government has rightly set aside the impugned levy, as under Ordinance, 2001 (Section 116) amended vide notification dated 17.8.2002, the proviso of sub-section (3) was added an according to the proviso. The proposals of local Government shall first be vetted by the Government prior to approval of these proposals by the respective council. Secondly under notification dated 3.9.2002, the said levy can only be levied by the District Government and not by the petitioner (Tehsil Council).
The petitioner is not defined as Tehsil Council and has no jurisdiction to impose the impugned tax under Section 7 of the Local Government Ordinance, 2001. Government had to declare Tehsil and District under Sections 12, 49, 65 and 116 of the Ordinance, 2001 Tehsil Council is constituted for each Tehsil. The Government has issued a notification dated 15.8.2001 notifying the Tehsil Councils but this notification does not include the name of Tehsil Council Tribunal Area. This defect in the notification having been notices by the D.C.O., who conveyed to the Government vide letter dated 27.8.2001, but so far no amendment has been made in the notification to declare the petitioner as Tehsil Council. Hence, no tax can be levied by the petitioner. The notification dated 6.10.2000 relied upon by the petitioner in its writ petition is not relevant as the same was issued prior to the Local Government Ordinance 2001 under Sections 2(1) and 3 of the Punjab Local Government Elections Ordinance, 2000 and was for the purpose of that Ordinance only as provide under Section 3 of the said Ordinance and does not declare the petitioner as Tehsil Council for the purpose of Ordinance, 2001.
The writ petition is not maintainable as factual controversy regarding the alleged supply of service, his claim by the petitioner is involved, which can not be determined without recording evidence, hence, writ petition is not maintainable.
Lastly, learned counsel for the respondents before concluding his arguments stated that some further developments after filing of the writ petition took place which rendered the instant writ petition infructuous. It is stated that the petitioner after filing of the writ petition, the petitioner informed Respondent No. 2 vide letter 20.12.2003 that in variance of the order dated 7.7.2003, the D.G. Khan Cement Company has been exempted from the taxes at category-iii, which was only to be recovered from the D.G. Khan Cement Company-Respondent No. 2. The T.M.A. has fully implemented the order issued by Respondent No. 2. The same position was confirmed by the letter dated 22.12.2003 written by the petitioner to the Respondent No. 2. However, later on in the publication dated 26.5.2004, only conveyor belt was exempted from tax, and the order was dated 31.7.2003 was also issued in which Transportation by conveyor belt has been exempted. Respondent No. 2 vide letter dated 11.6.2004 filed his petition demanding that the petitioner shall honours his commitment made to the Respondent No. 1 in his letter dated 20.12.2003, whereby the respondent company as been exempted from all kinds of taxes on cement stone, marble stone, limestone, gypsum etc. and made also mentioned that no tax shall be recovered from respondent-company in respect of the above mentioned items through conveyor belt, truck, tractor trolley to the cement factory, whereas, in your auction notice dated 26.5.2004 made mentioned that no tax will be charged from the respondents in respect of the above items carried out through conveyor belt only. No reply to the said letter was given by the respondent-company and Respondent No. 2 again filed appeal before Respondent No. 1 Respondent No.1/Secretary Local Government accepted the appeal vide his order dated 24.1.2005 and again held that the subsequent levy by the petitioner is illegal and without jurisdiction and declared that since the Local Government are not competent to levy excavation tax so its levy as well as leasing out the collection the rights is against rules and the petitioner/T.M.A. is directed to comply with the order dated 7.7.2003. This subsequent order dated 24.1.2005 of the Secretary Local Government has not been challenged in the writ petition and the same has attained finality, hence, the writ petition has become infructuous.
I have heard the learned counsel for the parties at length perused the record and documents filed on the writ petition. In view of the latest development which took place during the pendency of this writ petition as the petitioner itself wrote a letter dated 20.12.2003 to Respondent No. 1 admitted therein that levy of tax of all kinds of cement stones, marable stones etc. excavation and transportation through conveyor belt, trucks and tractor trolley, cement factory has been exempted from the tax category-(iii). It was further conveyed that T.M.A./petitioner has fully implemented the order dated 7.7.2003 impugned by the petitioner in the instant writ petition. In view of the admission on the part of the petitioner vide letter dated 20.12.2003 the impugned order dated 7.7.2003 was implemented in letter and spirit by the petitioner. Later on, the petitioner while in the auction notice dated 26.5.2004 published in daily "Khabrain" try to resile from its letter conveyed to the Secretary/Respondent No. 1 mentioned that only transportation through conveyor belt is exempted and issue work order by imposing tax on all kinds of cement and marble stones etc. and on its excavation and transportation. The respondent-company challenged this action of the petitioner by filing an appeal before Secretary, Local Government, Rural Development/Respondent No. 1, who vide his order dated 24.1.2005 again set aside the action taken by the petitioner-company and declaring that Local Governments are not competent to levy excavation tax so its levy as well as leasing out the collection rights is against rules. This order has not been challenged by the petitioner nor any amendment has been sought in the writ petition. Hence this writ petition is dismissed having become infructuous.
(A.A.) Petition dismissed
PLJ 2006 Lahore 391 [Rawalpindi Bench Rawalpindi]
Present: Muhammad Akhtar Shabbir, J.
M/s. VOYAGE DE-AIR GENERAL SALES AGENT SHAHEEN AIR INTERNATIONAL RAWALPINDI and another--Appellants
versus
SHAHEEN AIR INTERNATIONAL PVT. LTD. KARACHI and others--Respondents
F.A.O. No. 132 of 2005, heard on 7.11.2005.
(i) Jurisdiction--
----Validity--No pecuniary jurisdiction to hear the appeal then Court was not even to competent to entertain or hear cross objection--No objection was raised by defendant to jurisdiction of Civil Court and such objection was also not raised before lower appellate Court by defendants. [P. 396] D
(ii) Jurisdiction--
----Jurisdiction value was fixed and determined by plaintiff of the plaint as Rs. 20,000/- and the forum of appeal would be determined from original value of suit. [Pp. 396 & 397] E
(iii) Jurisdiction--
----Court lacking jurisdiction--Effect--When Court came to conclusion that it had no jurisdiction over matter in question of the suit or appeal, it could not decide any question on merits and could decide the question of jurisdiction--First Appellate Court after remanding the appeal was not competent to entertain cross-objection filed by defendant--Order passed by first appellate Court remanding the appeal for its presentation before forum was set aside by High Court and appeal would be deemed pendency before First Appellate Court. [P. 398] H & I
(iv) Pecuniary Jurisdiction--
----Pecuniary jurisdiction of appellate Court is less than specified amount--Appeal was returned to appellant for its presentation before proper forum. [P. 395] A
(v) Suits Valuation Act, 1887 (VII of 1887)--
----Ss. 9 & 11--Value of--Value of the original suit would mean the amount or value of subject matter of the suit and forum of appeal would be decided according to value of the suit which would mean that irrespective of what may be amount for which decree is passed--Appeal will lie in the Court according to value of the suit. [P. 396] B
(vi) Suits Valuation Act, 1887 (VII of 1887)--
----S. 11--Jurisdiction--Appellate Court was precluded from entertaining an objection as jurisdiction of trial Court or of lower appellate Court founded on the ground of over-valuation or under--valuation unless such objection of Court of first instance was raised by party at or before hearing of the case when issues were settled in case--Suit or appeal was over--Valued or under valued and that over--Valuation or under-valuation had prejudicially affected disposal of the suit or appeal on its merits. [P. 396] C
(vii) West Pakistan Civil Court Ordinance, 1962 (II of 1962)--
----S. 18--Suits valuation Act (VII of 1887) Ss. 3, 9 & 11--Specific Relief Act (I of 1877) Ss. 42, 52 & 53--Suit for declaration--Appeal forum of--S. 18 of West Pakistan Civil Court Ordinance, 1962 provided that pecuniary jurisdiction of District Judge always derived from valuation in plaint--Appeal against decree or order of civil Judge would lie to High Court if value of suit in which decree or order made exceed rupees 25,000/- and District Judge in any other case--Determination--Neither defendant nor trial Court or appellate Court had determined original jurisdiction value and Court if disgrace with determination of jurisdiction value of the suit could pass order fixing value but that too after framing an issued and affording opportunity to parties for production of evidence Court having not done such exercise had wrongly observed that it lacked pecuniary jurisdiction to hear the appeal--Appeal was therefore, competently filed. [Pp. 397 & 398] F & G
PLD 1996 SC 292; PLD 1985 SC 393; 2005 SCMR 1388; 2003 YLR 2226 and 1992 MLD 833.
Sh. Muhammad Akram and Mr. Muhammad Ilyas Sheikh, Advocates for Petitioners.
Mr. Mustafa Ramday, Advocate for Respondents Nos. 1 to 7.
Mr. Babar Ali, Advocate for Respondent No. 8.
Mian Abdul Rauf, Advocate for Respondent No. 9.
Date of hearing : 7.11.2005.
Judgment
This judgment will dispose of FAO No. 132 of 2005, Civil Revision No. 597 of 2005 and Civil Revision No. 617 of 2005, arising out of the same impugned judgment involving identical common question of law and facts.
Brief resume of the case is that the appellant M/s. Voyage de-Air, General Sales Agent of Shaheen Air International Pvt. Limited and Babar Hussain Shah son of Muhammad Hussain is the Managing Partner of M/s. Voyage de-Air-plaintiff, who had instituted a suit for declaration with permanent injunction against the defendant petitioner in Civil Revision No. 597 of 2005 in the Court of Senior Civil Judge, Islamabad, on 7.12.2004, for issuance of decree for declaration to the effect that the letters actions for claiming/recovering the illegal/disputed amounts from the plaintiff by the defendant are illegal, mala fide, tainted with ulterior motives, qua the approvals granted by the management against the principles of natural justice and terms and conditions governing the subject and ineffective qua the rights of the plaintiffs with permanent relief of injunction restraining defendants Respondents Nos. 1 to 7 from encashing the bank-guarantees or from terminating the above agreements (management agreement and GSA agreement dated 10.12.2001 Ex. C-2 and 3) in any manner or from interfering into the business affairs of the plaintiffs or reservation system and codes or from physical possession control over all the offices, outlets, equipments, revenue documents/stock, including outlets at Islamabad Airport and reservation system and codes in any manner. Alongwith the suit, the plaintiffs also filed an application for temporary injunction under Section 39, Rules 1 and 2 CPC. The plaint as well as the application was contested by the defendants/Respondents Nos. 1 to 7 herein in the appeal. The learned trial Court after hearing the preliminary arguments issued interim injunction in favour of the plaintiffs/appellants vide its order dated 7.12.2004.
The plaintiffs filed an application for initiation of proceedings under Order 39, Rule 2 sub-rule (3) read with Section 151 CPC against the defendants for violation of the order dated 7.12.2004. Notice was issued by the Court in this application. During the course of hearing, an application under Order 1, Rule 10 CPC was filed. On 10.6.2005, the Court called reply from the parties for 11.6.2005. The reply was not filed on the aforesaid date, but the learned Senior Civil Judge vide his order dated 11.6.2005 directed the plaintiffs to deposit an amount of 29,36,840/- in Court with a further direction to deposit an amount of Rs. 95,33,628/- to Defendants Nos. 1 to 7 or to furnish the proof of payment of this amount. Furthermore, the plaintiffs were also directed to submit copies of FSRs alongwith cheques of that amount to the defendants or in Court uptil 25.6.2005 and in case of default the Court observed that the stay order shall stand vacated. The said order dated 11.6.2005 has been impugned by the appellants before the learned District Judge, Islamabad, through an appeal, which was entrusted to a learned Additional District Judge for disposal. The lower appellate Court vide its order dated 16.8.2005 returned the appeal to the appellants for its presentation before the proper forum on the ground that the Court lacked the pecuniary jurisdiction. It has further been observed that the memorandum of appeal alongwith its all annexures be returned to the appellants after retaining Photostate copies thereof. The Court also directed that subject to availing of the suggested remedy, within a week, all the injunctive orders already passed shall remain operative.
The appellants in view of the above order preferred the instant FAO No. 132 of 2005 as well as Civil Revision No. 617 of 2005 challenging the impugned order dated 16.8.2005 regarding return of appeal for its presentation before the proper Forum.
The condition imposed by the appellate Court that all injunctive orders already passed shall remain operative has been challenged by Respondent No. 1/Shaheen Air International Pvt. Limited, through Civil Revision No. 597 of 2005.
I have heard the learned counsel for the parties and have perused the record. The appellants as well as petitioners in Civil Revision No. 617 of 2005 have preferred FAO No. 132 of 2005 against the order dated 11.6.2005 passed by the learned trial Court. Both the revision petitioners/plaintiffs as well as the defendants have challenged the vires of the order dated 16.8.2005, therefore, I have decided to dispose of these revision petitions as a notice case.
The question that boils down for determination in this case is, whether the appeal against the order dated 11.6.2005 passed by the learned trial Court was maintainable before the learned District Judge or before the High Court. The plaintiffs in paragraph-45 of the plaint has determined/fixed the jurisdictional value of the suit as Rs. 20,000/- which reads as under:-
"That the value of the suit for the purposes of Court-fee and jurisdiction is fixed at Rs. 20,000/- which is exempted from the levy of Court-fee."
In paragraph-40 of the plaint, the plaintiffs have stated that Defendant No. 4 issued inter office "Memo dated 25.9.2004 whereby he called upon Defendant No. 5 to ensure recovery of Rs. 2776,340/- against group fare and Rs. 160,500/- against cash incentive and some other amounts from the plaintiffs. On the basis of these entries, the lower appellate Court has observed that the pecuniary jurisdiction of the appellate Court is less than the said amount, therefore, the appeal was returned to the appellants/petitioners for its presentation before the proper forum.
Section 3 of the Suits Valuation Act, 1887, contemplates as under:--
"Section 3.--Power of Provisional Government to makes rules determining value of land for jurisdictional purposes. (1) The Provincial Government may make rules for determining the value of land for purposes of jurisdiction in the suits mentioned in the Court Fees Act, 1870, Section 7, paragraphs (v) and (vi), and paragraph (x), clause (d).
(2) The rules may determine the value of any class of land, or of any interests in land in the whole or any part of a local area, and may prescribe different values for different places within the same local area."
In this regard, a schedule is annexed with the Act showing the valuation of the suit for the purpose of computing the Court-fee and determining the jurisdiction of the Courts respectively. The suit filed by the plaintiffs/appellants pertains to the moveable property for declaration and permanent injunction. The plaintiffs as per Suits Valuation Act has fixed the valuation of the suit for the purpose of Court-fee and jurisdiction as Rs. 20,000/- less than Rs. 25,000/- which is exempted from the levy of Court-fee. As per Sections 9 and 11 of the Suits Valuation Act, the value mentioned in the plaint would govern the jurisdiction of the Court. The value of the original suit would mean the amount or value of the subject-matter of the suit and forum of appeal would be decided according to the value of the suit, which would mean that irrespective of what may be the amount for which decree is passed, the appeal will lie in the Court according to the value of the suit. In this context, reference can be made to the case of Sardar Din vs. Elahi Bakhsh and another (PLD 1976 Lahore 1).
Section 18 of the Civil Courts Ordinance, 1962, provides as under:--
"Section 18.--Appeals from Civil Judges: (1) Save as aforesaid, an appeal from a decree or order of a Civil Judge shall lie:--
(a) to the High Court if the value of the original suit in which the decree or order was made exceeds twenty five hundred thousand;
(b) to the District Judge in any other case."
Section 11 of the Suits Valuation Act, 1887 would show that an Appellate Court was precluded from entertaining an objection as to the jurisdiction of the trial Court or of a lower Appellate Court founded on the ground of over-valuation or under valuation unless such objection, in the case of the Court of first instance, was raised by the party at or before the hearing of the case when the issues were settled in the case, and in the case of lower Appellate Court the objection had been raised in the memo of appeal. Another condition which was required to be satisfied for entertaining the above objection was that the Appellate Court must record its reasons of satisfaction that the suit or appeal was over-valued or under-valued and that the over-valuation or under-valuation had prejudicially affected the disposal of the suit or appeal on its merits.
Another important aspect of the case is that the defendant/revision petitioner in Civil Revision No. 597 of 2005 have filed cross-objections before the lower Appellate Court, which was not returned by the Court for its presentation in this Court. It is still pending before the Court and if the Court has reached to the conclusion that it has no pecuniary jurisdiction to hear the appeal, then the Court was not even to competent to entertain or hear the cross-objections. In the instant case, no objection was raised by the defendants to the jurisdiction of the Civil Court and this objection was also not raised before the lower Appellate Court by the defendants/revision petitioners in Civil Revision No. 597 of 2005 (M/s Shaheen Air International Limited). It is an admitted fact that the jurisdictional value was fixed and determined by the plaintiffs in Paragraph-
45 of the plaint as Rs. 20,000/- and the forum of appeal would be determined from the original value of the suit. In this context, reference can be made to the cases of Ali Muhammad and others vs. Muhammad Shafi and others (PLD 1996 Supreme Court 292) and Illahi Bakhsh and others vs. Mst. Bilqees Begum (PLD 1985 Supreme Court 393). The relevant portion of the judgment of the apex Court for further ready reference and guidance is reproduced as under:--
"A perusal of the provisions of Section 18 of Ordinance 11 of 1962 also does not provide anywhere that the forum of appeal is to be determined on the basis of the sale price or the market value of the land. It only lays down that this is to be determined on the basis of the value of the original suit. The value of the suit in such cases being the one which is nationally fixed, it will be the same value which will determine the forum of appeal. In fact, the question is really no longer resintegra. This Court in the case of Jan Muhammad and others vs. Dr. Abdul Ghafoor etc. (PLD 1966 SC 461) already clarified that the value for purposes of jurisdiction in the matter of appeal shall be the same as in the plaint. In this connection, the following observation appearing at page 463 of the report is relevant:--
"The plaintiff went up in appeal before the District Judge on the valuation for the purposes of jurisdiction stated in the plaint, namely, Rs. 3,091,14 that was the correct forum of appeal."
The aforesaid view was upheld by the Hon'ble Supreme Court in the case of Munawar Hussain and 2 others vs. Sultan Ahmad (2005 SCMR 1388). In this case, the Hon'ble Judges have observed that under Section 18, West Pakistan Civil Courts Ordinance, 1962, pecuniary jurisdiction of the District Judge was always derived from the valuation in the plaint. An amendment has been made in Section 18 of the Civil Courts Ordinance, 1962, wherein it is clearly provided that the appeal against the decree or order of the Civil Judge shall lie to the High Court if the value of the original suit in which the decree or order was made exceeds rupees twenty-five hundred thousand and to the District Judge in any other case.
In the instant case, neither the defendants have determined or fixed the original jurisdictional value of the suit nor the trial Court or the Appellate Court had determined the original jurisdictional value and the Court if disagrees with the determination of jurisdictional value of the suit could pass an order fixing the said value but that too after framing an issue and affording an opportunity to the parties for production of their evidence. No such effort was made by the lower Appellate Court to determine the original jurisdictional value of the suit. Without such exercise, the Court could not observe or come to the conclusion that it lacks the pecuniary jurisdiction to hear the appeal. In this view of the matter, the appeal was competently filed by the appellants against the order dated 11.6.2005 of the learned trial Court and while admitting the appeal the order dated 20.6.2005 was rightly passed by the learned, lower appellate Court.
It is settled preposition of law that where the Courts having no jurisdiction over subject-matter of suit or appeal, it cannot decide any question on merits. It can simply decide question of jurisdiction and order return of plaint for its presentation to proper Court if it comes to conclusion that it has not jurisdiction. Reference in this context can be made to the cases of Athmanathaswami Devasthanam vs. K. Gopalaswami Ayyangar (A.I.R. 1965 Supreme Court 338(V 52 C 63), Karachi Electric Supply Corporation Limited through Secretary vs. Messrs Haji Hashim Haji Ahmad Brothers (2003 YLR 2226), Maqsood Ali Khan vs. National Bank of Pakistan through President, Head Office, I.I. Chundrigar Road, Karachi and 3 others (2003 PLC (CS) 226) and Qabool Muhammad Shah vs. Bibi Bushra and others (1992 MLD 833).
For the foregoing reasons, Civil Revision No. 597 of 2005 and Civil Revision No. 617 of 2005 are accepted and the impugned order dated 16.8.2005 passed by the lower Appellate Court returning the appeal for its presentation before the appropriate Forum in toto is set aside, as a result of which the appeal preferred by the appellants before the lower Appellate Court shall be deemed to be pending before the said Court. The Office to return the present Memo. of Appeal alongwith its all annexures to the appellants for its presentation before that Court within a period of fortnight and the said Court will decide the same strictly in accordance with law after affording an opportunity of being heard to both the parties.
(R.A.) Order accordingly.
PLJ 2006 Lahore 398 (DB)
Present: Nasim Sikandar and Jawwad S. Khawaja, JJ.
M/s ROYAL TRAVEL SERVICE (PVT) LTD., FAISALABAD through its CHIEF EXECUTIVE--Appellant
versus
INCOME TAX APPELLATE TRIBUNAL OF PAKISTAN, LAHORE BENCH, LAHORE & 2 others--Respondents
I.T.A. No. 535 of 1999, heard on 7.2.2005.
Income Tax Ordinance, 1979 (XXXI of 1979)--
----Ss. 50(4A), 52 & 136--Reference to High Court--Deduction of tax at source--Appellant derived income from selling air tickets on commission basis--Assessing officer found no tax as envisaged under provisions of Section 50(4A) was withheld by assesses company--Appellant treated as "assessee in default"--Raising of tax demand and imposition of penalty--Validity--Forum in which part of commission was ceded certainly means selling of air tickets at rate lower than one on which assessee was allowed by its principal airline to sell tickets--Best ceding of part of commission was discount both in case of walk in passengers as well as sub-agent bears weight--A sub-agent in such line of business only purchases ticket from agent at rate lesser that one shown on its face--In that manner he only shares part of commission earlier allowed to agent but does not receive any cash payment from agent nor he makes any payment to end customary i.e. air passenger--Two basic conditions required to attract provisions of Section 50(4A), i.e. kind of obligation to pay and secondly actual payment made on account of brokerage or commission are absent--Held : Assessee/appellant was not liable nor he could possibly be treated as assessee in default--Appeal allowed. [Pp. 402 & 403] A, B, C & D
Syed Zia Haider Rizvi, Advocate for Appellant.
Mr. Muhammad Ilyas Khan, Advocate for Respondent.
Date of hearing : 7.2.2005.
Judgment
Nasim Sikandar, J.--This further appeal under Section 136 of the late Income Tax Ordinance, 1979 seeks to challenge an order of the Income Tax Appellate Tribunal, Lahore Bench dated 23.11.1999. Following questions of law stated to have arisen out of the said order of the Tribunal:
"(i) Whether on the facts and circumstances of the case the trade discount allowed could be treated as payment made u/S. 50 attracting Section 52 of the Income Tax Ordinance, 1979?
(ii) Whether the passing of discount from Principal Airline to purchaser and in turn seller at the tail end, could be treated as Commission?
(iii) Whether the recipient of air-tickets' price could be treated as prayer responsible to deduct income tax u/S. 50(4A) of the Income Tax Ordinance, 1979?
(iv) Whether in the absence of any relationship of agency between the appellant and the purchasers of air-tickets for sale at their end, the purchasers could be treated as sub agents of the appellant?"
"1. That the assessee company had not made any cash payment to any sub agent.
That the assessee company only sold air tickets to the sub agents at reduced rates and that the transaction could at the best be regarded as cash discount allowed on sale.
That the assessee company was factually a recipient and not payer and hence not responsible to deduct tax U/S 40(4A)."
The Assessing Officer, however, found these submissions to be unsatisfactory for the following reasons:--
That since commission was disbursed on account of the assessee company, the responsibility to withhold tax U/S 50(40A) was hence vested in the assessee's company.
That the arrangement made between the assessee company and the sub agents regarding passing on sale proceeds of tickets to the assessee company after deduction of amount of commission, was immaterial, as primarily the responsibility for payment/withholding of tax lied with the company.
That the transaction could not be regarded as cash discount as major portion of the commission was itself claimed by the assessee to have passed on to the sub agents.
That the sub agents were rendering service to the assessee and were hence genuinely entitled to commission for the work done by them."
Thereafter by proceeding under the said provisions of Section 52 of the late Income Tax Ordinance, 1979 read with Section 50(4A) he proceeded to raise tax demand and also imposed additional tax keeping in view default in terms of days. The assessment order so recorded on 28.12.1998 was challenged unsuccessfully before the Commissioner of Income Tax (Appeals-I), Faisalabad.
The learned First Appellate Authority on 29.4.1999 after reproducing the reply as also the basis on which it was rejected. proceeded to approve the treatment meted out to the assessee.
On further appeal a Division Bench of the Tribunal by way of the impugned order in similar manner agreed with the Assessing Officer and therefore, maintained both the assessment as well as the Appellate order. However, in the order so recorded the commission receipts shown by the appellant were directed to be bifurcated under the head "commission" and "discount" to reach the exact tax liability. Earlier, the learned Members of the Tribunal agreed in principle with the Revenue authorities, the Assessing Officer as well as CIT (Appeals), that the amount of commission passed on to the sub agents attracted the provisions of Section 52 and Section 50(4A) of the late Ordinance. Hence the claim of the appellant that the order of the Tribunal gives rise to the aforesaid questions of law.
After hearing the learned counsel for the parties, we are of the view that the assessee/appellant has not been treated in accordance with law. Sub-section (4A) of Section 50 at the relevant time provided as under:--
"(4A) Any person responsible for making any payment in full or in part (including a payment by way of an advance) to any person, on account of brokerage or commission on behalf of Government, a local authority, a company, [a registered firm] a foreign contractor or consortium shall deduct advance tax, at the time of making such payment, at the rate specified in the First Schedule and credit for the tax so deducted in any financial year shall, subject to the provisions of Section 53, be given in computing the tax payable by the recipient for the assessment year commencing on the first day of July next following the said financial year, or in the case of an assessee to whom Section 72 or Section 81 applies, the assessment year, if any, in which the "said date", as referred to therein, falls, whichever is the later."
The above provision when read with Section 52 of the late Income Tax Ordinance leads us to a definite conclusion that the liability of a person to be treated as an "assessee in default" is co-related to the default made under Section 50(4A) as reproduced above. That provision in turn is clear that a person falling in the categories contemplated in the said provisions making any payment in full or in part shall be required to deduct tax at the time of making such payment on the rate specified in the First Schedule. Obviously, in case of default the provisions of Section 52 will come into motion and he shall be deemed to be an "assessee in default" in respect of such tax. In the case in hand it is not disputed that the assessee as an agent of the airline ceded part of its commission to walk in passenger i.e. tickets sold at the counter as also to other persons who acted as sub agents directly or indirectly. It is also not disputed that the assessee company did not make any cash payment to any sub agent. The question of cash payment to a walk in passenger or over the counter hardly arises at all. The form in which part of the commission was ceded certainly means selling of air tickets at a rate lower than the one on which the assessee was allowed by its principal airline to sell the tickets. Therefore, the contention that at best the ceding of a part of commission was a discount both in case of walk in passengers as well as sub agents bears weight.
Now let us look at the provisions of Section 50(4A) of the late Ordinance once again. The first condition that a person "responsible" for making any payment in full or in part is certainly missing in this case. The assessee as a commission agent was not responsible to make any payment either while selling tickets over the counter or through sub agents. It is correct that the words "discount" and "commission" have two different connotations and even results. It is that word "commission" generally signifies disbursement of an amount relatable to the total amount involved in a transaction. It can be any percentage or any sub division of the amount involved in the transaction. On the other hand, the word "discount" signifies a certain amount of money normally identified by percentage, which is taken away from the face value of the security or property which is subject matter of the transaction. It is certainly correct that the payment of a sum as "commission" as visualized in the provision by and on behalf of the entities stated therein is squarely hit by the mischief of the provision. However, in the case of the assessee in hand as a travel agent the term "commission" with its significance is not attracted for the simple reason that his commission from the principal air lines already stands determined. Whatever he is ceding or parting with is a chunk of his own commission earlier allowed to him on every ticket.
Also the use of the word "responsible" in the said provision indicates some kind of duty or obligation on the part of the person to make the payment on behalf of the entities identified in the provision. The word "commission" in that sense signifies that a transaction was reached between two persons, a buyer or a seller of commodities and services etc. which were done and completed through the medium of a third person who, besides doing many other acts brought the two parties together. Such person or commission agent plays a key role keeping in view the trust and confidence reposed in him by the seller as well as the purchaser of the commodity or services. Not only that he acts on behalf of both parties but also his judgment as to the quality, quantity and standard of the thing or services sought to be bargained is accepted by the parties. The earning of that amount, of course subject to the deduction of admissible expenses is the income of the commission agent. Most significant character of this kind of income is its receipt or payment in cash or in any other form to be categorized as an "amount".
On the other hand, in case of a commission agent selling out either the product of his principal or providing services as in the case of a travel agent he does not pay any "amount" either as discount or as commission. Therefore, the basic ingredient to attract the provision i.e. "making any payment in full or in part" is absent in such cases. It further needs to be noted that in cases of sub agents though they fall in the same character yet they also like the assessee as travel agent are neither "responsible" to make any payment to an air passenger nor any payment is made to them by the travel agent. A sub-agent in this line of business only purchases a ticket from the agent at a rate lesser that the one shown on its face. In that manner he only shares part of the commission earlier allowed to the agent but does not receive any cash payment from the agent nor he makes any payment to the end customer, i.e. the air passenger.
Since the two basic conditions required to attract the provisions of Section 50(4A) i.e. a kind of obligation to pay and secondly the actual payment made on account of brokerage or commission are absent in the case in hand the assessee/appellant was not liable nor he could possibly be treated as an assessee in default.
This appeal shall, therefore, be allowed and our answer to all four questions will be in the negative.
(A.S.) Appeal allowed
PLJ 2006 Lahore 403
Present: Syed Hamid Ali Shah, J.
GENERAL MANAGER KASHMIR SUGAR MILLS LIMITED--Petitioner
versus
COMMISSIONER WORKMEN'S COMPENSATION JHANG and another--Respondents
Writ Petition No. 3473 of 2005, decided on 30.11.2005.
West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (VI of 1968)--
----S.Os. 1, 10-B & 14--Constitution of Pakistan (1973) Art. 199--Constitutional petition--Amount of group insurance--Entitlement--Sugar Mill was a seasonal factory and deceased was an seasonal employed in Mill during season 2002-2003--Services were terminated--Petitioner died at the time when he was not employee of mill--Application moved for payment of amount of group insurance--Accepted--Validity--Being a seasonal workmen, deceased was offered job at the beginning of crushing season, was relieved at end of such season, was not employee of mill at time of death--Appointment letter was with heading "Permanent Staff" but nature of appointment had been described in said letter as pan-mate retainee--Clearance certificate had shown, signed by deceased was relieved and all dues were cleared--When deceased was retrenched at end of relevant crushing season, he ceased to be an employee of petitioner--Held: Deceased, was not a `permanent worker' at the time of his death, and such was not entitled to claim group insurance under said Act--Impugned order set aside by High Court--Petition allowed. [Pp. 404, 405 & 406] A, B, C, D, E, F, G & H
Mr. Shahid Karim, Advocate for Petitioner.
Nemo for Respondent No. 1.
Malik M. Rashid, Advocate for Respondent No. 2.
Date of hearing : 8.4.2005.
Judgment
Brief facts giving rise to this petition are that the petitioner is engaged in the manufacture of sugar, which is a seasonal factory where the employees are appointed as permanent, seasonal and temporary. Services of seasonal workers are statedly engaged during the crushing season. These workers work during the crushing season and thereafter they are relieved and retrenched until the next crushing season. Son of Respondent No. 2 namely Baber Sher was appointed as pan-mate on 7.12.1997, through appointment letter (Mark-A). He was employed during the season 2002-2003 on 25.11.2002 and his services stood terminated on 16.4.2003. He died on 26.9.2003 at the time when he was statedly not in the employment of the petitioner. Respondent No. 2 moved an application before Respondent No. 1 Commissioner Workmen Compensation Jhang on 26.12.2003, claiming therein an amount of Rs. 2,00,000 as group insurance due to the deceased. Petitioner contested the application, filed his written reply, controverted therein the averments of the application. Respondent No. 1 vide order dated 8.1.2005 accepted the application and directed the petitioner to pay the claim of group insurance. The order dated 8.1.2005 has been assailed through the instant petition.
Learned counsel for the petitioner has contended that group insurance is the right of a permanent workman, while the deceased son of Respondent No. 2 was not a workman within the contemplation of Standing Order 1. He added that at the time of death, the deceased was not drawing any wages from the petitioner. His services were retrenched at the relevant time. Learned counsel further contended that the learned Court while passing the impugned order has ignored the material evidence on record. The appointment letter shows his appointment as "pan-mate retainee". It is proved from clearance certificate dated 12.4.2003 that when his services were relieved, he had received his dues. Leave register does not show his attendance. After referring to these documents, learned counsel contended that there was ample evidence on record to show that deceased was retainee and not permanent worker.
Learned counsel for the Respondent No. 2, on the other hand, has fully supported the impugned order. He has referred to mark-A (Appointment Letter) and has stated that the appointment letter is with the heading permanent staff, which shows that deceased son of Respondent No. 2 was a permanent employee. He then referred to clause (3) of the appointment letter and has stated that the clause, which provides for a probationary period at the expiry of the said period, an employee is deemed as confirmed. Since the deceased son of Respondent No. 2 completed his probationary period and became confirmed soon on completion of the said period. Learned counsel has drawn attention to Exh. P-1 to Exh. P-5 to show that the retention letter does not contain the signatures of the deceased and such are not binding on Respondent No. 2.
Heard learned counsel for the parties and perused the record.
The appointment letter is although with the heading permanent staff but the nature of appointment has been described in the said letter as pan-mate retainee. Clearance certificate dated 12.4.2003 shows that the deceased was relieved and all his dues cleared. The certificate is signed by the deceased. Exh. P-1 to Exh. P-5 are the retention letters which show the retention period on which the petitioner was retained from time to time. Exh. R-2 is the final settlement sheet, showing deceased at Serial No. 12. The deceased has signed the relevant column which also speaks that son of Respondent No. 2 was a seasonal worker. The evidence available on record proves that deceases was a seasonal worker.
Standing Order No. 1 of the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968 the workmen are classified into five categories which are.
Permanent
Probationers
Badlies
Temproary
Apprentices.
Admittedly the deceased was employed on the job of permanent nature and has been employed season after season by the factory and as such he is deemed as a permanent workman. Standing Order 14 provides that in case of a seasonal factory if a workman is retenched at the end of a season, he has the right to be employed at the beginning of the next season. This clearly indicates that when he was retenched at the end of the season he ceased to be an employee of the organization. Standing Order 14 is reproduced as under:
"Where any number of workmen are retrenched and the employer proposes to take into his employment any person within a period of one year from the date of such retrenchment he shall be given an opportunity to the retrenched workmen belonging to the category concurred, by sending a notice by registered post to their last known addresses to offer themselves for re-employment, and they shall have preference over the persons, each having priority according to the length of his service under the employer."
The deceased son of Respondent No. 2, being a seasonal workman was offered the job at the beginning of the season and was relieved at the end of such season, which fact is evident, from the perusal of Exh. P-1 to Exh. P-5.
Son of the Respondent No. 2 died on 26.9.2003 when he was not in the employment of the petitioner which fact is evident from the perusal of the retention letter dated 15.4.2003, the clearance certificate dated 12.4.2003 and final settlement sheet for the season 2002-2003. It has been clearly stipulated in clause 1 of the retention letter that son of Respondent No. 2 was retrenched on 7.6.2003 and it was to continue till the start of next crushing season 2003-2004. The clearance certificate (Exh. R-1) dated 12.4.2003 shows that the services of the deceased were terminated on 16.4.2003 and that there was nothing due to or against the deceased employee. The deceased has signed the clearance certificate which shows that the has accepted his retrenchment. The deceased was thus not a permanent worker at the time of his death and as such was not entitled to the claim of group insurance under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
For the foregoing, the instant writ petition is allowed, order dated 8.1.2005 (impugned at this petition) is set aside. No order as to the costs.
(A.S.) Petition allowed.
PLJ 2006 Lahore 406
Present: Muhammad Jehangir Arshad, J.
MUHAMMAD MURAD and 12 others--Petitioners
versus
ALLAH BAKHSH and 34 others--Respondents
C.R. No. 88-D of 2004, decided on 12.10.2005.
Muslims Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 4--Specific Relief Act (I of 1877), Ss. 42, 52 & 53--Succession--Scope--Applicability of S. 4--Muslim Family Laws Ordinance, 1961 was enforced in the year 1961 and provisions of S. 4 had no retrospective effect, could not be applicable to present case--On the death of owner succession opened and children of predeceased sons were not entitled to inherit the state of deceased, according to Islamic Law--Lower Courts acted within frame work of law by non-suiting petitioners and excluding them from inheritance of deceased--Original owner of property--Petition dismissed. [P. 408] A, B & C
2002 CLC 819 ref.
Mr. Muhammad Naveed Hashmi, Advocate for Petitioners.
Date of hearing : 10.12.2005.
Order
The petitioners who are legal heirs of Wali Muhammad and Muhammad Bakhsh pre-deceased sons of Ramzoo the original owner of the property in dispute, are aggrieved of the judgment and decree dated 18.11.2000 passed by learned Civil Judge 1st Class, Multan dismissing their suit for declaration and permanent injunction and also the judgment and decree dated 24.9.2003 passed by learned Additional District Judge, Multan dismissing their appeal against the above judgment and decree of the trial Court.
The fact succinctly are that Ramzoo the original owner of the property in dispute, died in the year 1951 and his two sons Wali Muhammad and Muhammad Bakhsh died during his life time. It appears that some property owned by said Ramzoo actually devolved on him through registered sale-deed dated 24.10.1974 and same was mutated in favour of his legal heirs (respondents) by excluding the petitioners being the sons and daughters of said Wali Muhammad and Muhammad Bakhsh, pre-deceased sons of Ramzoo. The petitioners, feeling aggrieved of said mutation, filed a suit before the learned trial Court on 14.3.1993 claiming that as the property in dispute was originally owned by Ramzoo, therefore, they being the sons and daughters of Wali Muhammad and Muhammad Bakhsh, his pre-deceased sons, were entitled to inherent the same in terms of Section 4 of Muslim Family Ordinance, 1961. The suit was contested by the respondents/defendants on the ground that as at the time of death of Ramzoo in 1951, Section 4 of the said Ordinance was neither in force nor the same had retrospective effect, hence, the petitioners/plaintiffs were not entitled to claim the benefit of Section 4 of Muslim Family Laws Ordinance, 1961. The learned trial Court framed issues, recorded evidence of the parties and vide judgment and decree dated 18.11.2000 dismissed the suit of the petitioners/plaintiffs. Against the said judgment and decree, the appeal filed by the petitioners/plaintiffs was also dismissed by the learned Additional District Judge, Multan on 24.9.2003, hence this petition.
Learned counsel for the petitioner has argued that applicability of Section 4 of Muslim Family Laws Ordinance, 1961 is to be considered from the date when the property actually devolved on Ramzoo deceased and not from the date of his death in 1951. He has therefore, argued that two Courts below have acted illegally and with material irregularity by non-suiting the petitioners/plaintiffs on the ground that as at the time of death of Ramzoo in 1951 Section 4 of above Ordinance was not applicable, hence the petitioners were not entitled to claim share in the inheritance Ramzoo deceased.
Heard. Record perused.
The Muslim Family Laws Ordinance, 1961 was enforced in its totality on 2nd of March, 1961 which no retrospective effect. Section 4 of the said Ordinance, reads as under:--
"Succession. In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be, would have received, if alive.
A perusal of the above Section 4 clearly indicates that it is applicable when the succession of propositus opens. It is an established principle of Muslim Law that succession of a Muslim opens the moment he dies and same is neither dependent nor suspended till happening or non-happening of certain event. Admittedly, Ramzoo the original owner died in 1951 notwithstanding the fact that property in dispute was mutated in his name in 1974. Learned counsel for petitioners has not been able to point out any provisions of law making succession of Ramzoo effective upon happening or non-happening of some future event in order to bring the case of the petitioner within the ambit of Section 4 of the Muslim Family Laws Ordinance, 1961 with retrospective effect. Since, admittedly when Ramzoo died in 1951 provisions of Section 4 of the above Ordinance were not in vogue nor the said provisions have been made effective retrospectively, the two Courts below acted within the framework of law by non-suiting, the petitioners and excluding them from inheritance of Ramzoo deceased, the original owner. Reliance is placed on the case "Muhammad Yaqub and others v. Muhammad Ibrahim and others" (2002 CLC 819). Resultantly, this civil revision fails and is dismissed in limine, leaving the parties to bear their own costs.
(A.S.) Petition dismissed.
PLJ 2006 Lahore 409 [Rawalpindi Bench Rawalpindi]
Present: Ch. Ijaz Ahmad, J.
MUHAMMAD YAQOOB--Petitioner
versus
HAMEEDA BEGUM & 4 others--Respondents
C.R. No. 1598 of 1998, heard on 3.3.2005.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revision--Petitioner filed suit for declaration challenging mutation in favour of respondent on ground that deceased was Shia by faith and being brother, entitled to inhert land to extent of S. 24 share--Suit decreed--Findings reversed on appeal--Validity--Petitioner has challenged mutations that petitioner/plaintiff was not present at time of sanctioning mutations and his signatures are forged--First Appellate Court has compared signatures of petitioner himself and has gives findings against petitioner--By virtue of Section 73 of Evidence Act, or S. 84 of Qanun-e-Shahadat Order, 1984, Court can itself compare signatures alongwith other relevant material to effectively resolve main controversy--Petitioner submitted application for comparison of signatures from hand-writing expert which was subsequently withdrawn by petitioner--First Appellate Court was justified to compare signature itself which is in consonance with law--Three revenue officials/officers appeared who endorsed and proved contents of mutations to extent that petitioner was present and signed mutations in their presence, principle of estopple is attracted in all respects--Man can tell a lie but documents cannot--Issue No. 3 is decided in favour of respondents then question of belonging to faith of deceased is irrelevant as petitioner himself signed documents wherein, it is mentioned that late "A" is Shia--First Appellate Court has all powers to reappraisal evidence while deciding appeal exercising power u/S. 96 of C.P.C.--Held: No infirmity or illegality in impugned judgment and decree of First Appellate Court--Revision petition was dismissed. [Pp. 412, 413, 415, 416 & 417] A, B, C, D, E, F, G & H
Mr. Muhammad Iftikhar Shah, Advocate for Petitioner.
Ch. Muhammad Amin Javed, Advocate for Respondents.
Date of hearing : 3.3.2005.
Judgment
The brief facts out of which the present revision petition arises are that the land inquestion belongs to late Ata Muhammad, who is real brother of the petitioner and father of the respondents. After the death of late Ata Muhammad, Mutations Nos. 1452 and 1485 were sanctioned in favour of the respondents on 19.3.1987. The petitioner being aggrieved filed suit for declaration with possession in the Court of Civil Judge Hafizabad. The contents of the plaint reveal that the petitioner is real brother of late Ata Muhammad, who belongs to Shia sect. The petitioner being aggrieved filed aforesaid suit for declaration to the effect that impugned mutations are patently wrong, against the law and facts, void and inoperative qua the rights of the petitioner/plaintiff, who is entitled to inherit the land from the estate of Ata Muhammad deceased up to the extent of 5/24 shares. The contents of the plaint further reveal that said late Ata Muhammad died about 1-1/4 year before the institution of the suit inquestion and about his estate mutations were attested on 19.3.1987 in which through the collusion with the revenue staff Ata Muhammad deceased was shown to be belonged to Shia sect and the mutations were got sanctioned against the law and facts, who was not Shia by faith and was Sunni. The contents of the plaint further reveal that presence of the petitioner/plaintiff and signatures were wrongly shown in the disputed mutations. The petitioner/plaintiff was not present at that time and the requisite mutations which were attested without notice and knowledge of the petitioner/plaintiff and his signatures are fake and fabricated. The deceased was the real brother of the petitioner/plaintiff. The respondent filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, learned trial Court framed the following issues:--
Whether the Mutation No. 1452 dated 19.3.1987 and Mutation No. 1485 dated 19.3.1987 are collusive, against facts, illegal and ineffective against the rights of the plaintiff? OPP
Whether the plaintiff has no cause of action or locus standi to file this suit? OPD
Whether the plaintiff is estopped by their act and conduct from filing this suit?
Whether the defendants are entitled to recover special costs? If so, up to what extent?
Relief.
The trial Court decreed the suit vide judgment and decree dated 9.7.1997. The respondents being aggrieved preferred an appeal in the Court of Addl. District Judge, Hafizabad, who reversed the findings of the trial Court on Issues Nos. 1 & 3 and dismissed the suit vide impugned judgment and decree dated 18.5.1998, hence the present revision petition.
The learned counsel of the petitioner submits that the First Appellate Court reversed the findings of the trial Court without adverting to the reasoning of the trial Court. He further submits that trial Court has given findings after proper appreciation of evidence on record that late Ata Muhammad is not Shia and is in fact belonging to Sunni Sect. He further urges that the First Appellate Court reversed the findings by misreading and non-reading of the record whereas the trial Court has given findings after proper appreciation of evidence on record on Issues Nos. 1 and 3. The witnesses produced by the petitioner categorically stated in their statements that late Ata Muhammad is Sunni whereas the respondents failed to produce evidence to rebut the stand of the petitioner/plaintiff. He further urges that the petitioner produced Nawazish Ullah P.W.1, Lal Din P.W. 2 Imam Masjid, the petitioner/plaintiff himself appeared as P.W. 3 and also produced Abdul Hameed P.W. 5 to prove Issue No. 1 whereas respondents have only produced Mst. Mehmooda D.W. 8 and Syed Muhammad Tasleem Alam Zaidi D.W.1, who executed the alleged affidavit of late Ata Muhammad. One of the witnesses of the affidavit Abdul Hameed denied the execution of affidavit by late Ata Muhammad, therefore, findings of the trial Court is in accordance with the evidence on record whereas the findings of the First Appellate Court is not in accordance with the evidence on record and is in fact based upon surmises and conjectures. He further urges that the petitioner/plaintiff P.W. 3 Muhammad Yaqoob appeared to prove Issue No. 3, who has categorically denied that he was not present at the time of sanctioning the mutations in favour of the respondents and his signatures are also fake, therefore, findings of the trial Court is in accordance with the evidence on record whereas respondents failed to dislodge this fact, which was not proved by the petitioner/plaintiff whereas respondents/defendants failed to prove the same by producing Arif Hussain Qanungo D.W. 2, Muhammad Shafi Patwari Halqa D.W.3, Lal Din Qanungo D.W.4, Ch. Liaqat Ali Ex-Tehsildar D.W.5, Nasrullah Khan D.W. 6, Amanat Ali D.W.7, and Mst. Mehmooda D.W.8. He further urges that none of the relations of late Ata Muhammad is belonging to Shia sect and his "Namaz-e-Jinaza" was also performed in accordance with Sunni sect as stated by P.W.2 Imam of Mosque of the village inquestion. He further submits that there are two mosques in the village and none of the mosque is in the possession and under the control of any person, who is belonging to Shai sect, therefore, judgment of the First Appellate Court is result of misreading and non-reading of the record. He further submits that none of the witnesses has any knowledge about the faith of late Ata Muhammad, who were produced by the respondents/defendants. This fact was not considered by the First Appellate Court in its true perspective.
The learned counsel of the respondents supported the judgment of the First Appellate Court and submits that the First Appellate Court has compared the signatures of the petitioner/plaintiff himself and found similarity of the signatures of the petitioner/plaintiff on the mutations inquestion, which is valid in accordance with Article 84 of Qanun-e-Shahadat Order, 1984. He further submits that the petitioner has submitted application before the trial Court for comparison of the signatures but subsequently he has withdrawn his application for comparison. He further urges that affidavit of late Ata Muhammad was exhibited without objection of the petitioner/plaintiff, therefore, the First Appellate Court was justified to take notice of the affidavit of late Ata Muhammad according to which Ata Muhammad is not belonging to Sunni sect. He further urges that the petitioner himself intimated the Halqa Patwari to enter the mutations qua late Ata Muhammad who belongs to Shia sect as is stated by Mst. Mehmooda D.W. 8 in her examination in chief. The petitioner failed to cross-examine her on this material point. He further submits that the First Appellate Court rightly reversed the findings of the trial Court on Issues Nos. 1 and 3. The petitioner has no right to agitate the matter with regard to sect of late Ata Muhammad after signing the mutations inquestion on the well-known principle of estoppel and waiver. He further urges that mutations were duly approved by producing the official witnesses, who had signed and entered the mutations inquestion in favour of the respondents. They had categorically stated in their statements that the petitioner/plaintiff has signed the mutations and those were sanctioned in his presence, who have no enmity against the petitioner, therefore, First Appellate Court was justified to reverse the findings of the trial Court. He further submits that the petitioner failed to point out any irregularity committed by the First Appellate Court, therefore, revision petition is liable to be dismissed. In support of his contention, he relied upon Ashiq Hussain vs. Prof. Muhammad Aslam & 9 others (2004 MLD 1844). He further urges that mutations were sanctioned in presence of the petitioner/plaintiff on 19.3.1987 whereas the petitioner has filed suit on 24.5.1993 after the prescribed period of six years, therefore, suit of the petitioner was time barred. In support of his contention, he relied upon Hakim Muhammad Buta and another vs. Habib Ahmad and others (PLD 1985 S.C. 153).
The learned counsel of the petitioner in rebuttal submits that both the Courts below have given concurrent findings of fact with regard to the issue of limitation in favour of the petitioner and the respondents have not filed any cross objection challenging the vires of the findings of the Courts below, therefore, respondents' counsel is not within his right to agitate this matter at this stage with regard to the limitation. Coupled with the fact that respondents had not raised objection with regard to limitation in written statement.
I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
It is admitted fact that mutations were sanctioned in favour of the respondents on 19.3.1987. The contents of the mutations reveal that the petitioner/plaintiff was present and signed the mutations. The petitioner has not challenged the mutations that the petitioner/plaintiff was not present at the time of sanctioning the mutations and his signatures are forged one. The petitioner has submitted the application for comparison of his signatures before the trial Court, which has been withdrawn by the petitioner/plaintiff subsequently. The First Appellate Court has compared the signatures of the petitioner himself and has given findings against the petitioner in the following terms:--
"I have myself compared the signatures of Muhammad Yaqoob respondent/plaintiff available on Ex. P.1 and Ex. P.2 with the sale deeds Ex. D. 1 to Ex. D.3 and found that these signatures are similar from every angle."
It is settled proposition of law that by virtue of Section 73 of the Evidence Act, or Article 84 of the Qanun-e-Shahadat Order, 1984, the Court can itself compared the signatures alongwith the other relevant material to effectively resolve the main controversy as is evident from the first part of the said section. In arriving to this conclusion. I am fortified the law laid down by the superior Courts in the following judgments:--
M/s Waqas Enterprises case (1999 SCMR 85).
Syed Iftikhar Hussain's case (1990 ALD 570).
S.M. Zaheer's case (1974 SCMR 490).
Haji Muhammad Khan's case (1992 SCMR 2439).
It is admitted fact in this case that the petitioner has submitted an application before the trial Court for comparison of the signatures from the Hand-Writing Expert, which was subsequently withdrawn by the petitioner. In such situation the First Appellate Court was justified to compare the signatures itself, which is in consonance the law laid down by this Court in Mr. Arif Beg's case (PLD 1992 Lahore 366). The relevant observation is as follows:--
"When the parties had not brought forward any expert witness to give opinion about the genuineness of the signatures inquestion, the learned trial Court was competent to form its opinion by comparing the disputed signatures with the admitted signatures. The opinion which it had formed in the present case appears to be quite justified."
It is pertinent to mention here that the Honourable Supreme Court has compared the signatures at the level of apex Court in Waqas Enterprises case aforementioned. The Karachi High Court has also considered the effect of Article 84 of the Qanun-e-Shahadat Order, 1984 in Muhammad Din's case (1991 MLD 1070) and laid down the following principle:--
"In the present case, however, the learned Judge simply failed to apply his mind in spite of the admission made by the respondent that a number of documents on record bear his signatures. He certainly was in a position to form his own opinion on the basis of the material before him without recourse to handwriting expert. I have looked into the signatures of the respondent on the document before me and I am of the view that the signatures as appearing on Ex. P.3 is not different from his signatures on the other documents as admitted by him."
It is pertinent to mention here that in cited case the Appellate Court has compared the signatures like in the present case the First Appellate Court has compared the signatures itself and material irregularity committed by the trial Court was rectified by the First Appellate Court. The question of law was also considered in Abdul Hameed alias Ladai Mia (PLD 1956 Dacca 14). The relevant observation is as follows--
"(1) By proof of signature and handwriting of person alleged to have signed or written the document Section 67; (2) By the opinion of experts who can compare hand writing Section 45; (3) By a witness who is acquainted with the handwriting of the person by whom it is supposed to be written and signed Section 47; (4) By comparison of signatures or writing with others admitted and proved signature or writing. Under line is mine."
A further observation was made in that case which is as follows:--
Here in the present case the document having been proved by a person who was present at the time of its execution, the appellant's grievance on this score is absolutely senseless."
The First Appellate Court has given findings of fact against the petitioner by comparison that signatures on Ex. P.1. and Ex. P.2 are exactly of the petitioner as is evident from the operative part of the judgment of the First Appellate Court reproduced above as held in Ahsanullah Chowdhury's case (PLD 1958 Dacca 57). The Dacca High Court has considered this proposition of law in Ahsanullah Chowdhury vs. Haji Abdul Jabbar Chowdhury 9 DLR 543). The relevant observation is as follows:
"The question of law in this case is thus quite clear. Comparison of a writing or signatures with admitted writings or signature is a legal mode of determining the genuineness or otherwise of the writing or signature. In certain circumstances it is unsatisfactory and dangerous to base a decision on the correct determination of the genuiness of a handwriting or a signature by more comparison with admitted handwriting or signature without the aid in evidence of microscopic enlargements or expert advise. Nevertheless, since it is a legal mode of coming to a conclusion with regard to the genuineness or otherwise of a document by comparison of handwriting and signature it cannot be said that the Court which bases its decision on such comparison and examination acts illegally or improperly. Besides it is a question of fact and the High Court will not interfere with the decision based on such comparison by the lower appellate Court. Under line is mind."
It is pertinent to mention here as mentioned above that three revenue officials/officers appeared as Muhammad Shafi Halqa Patwari D.W. 3, Lal Din Qanungo D.W.4, Ch. Liaqat Ali Ex-Tehsildar D.W.5, who also endorsed and proved the contents of the mutations to the extent that the petitioner was present and signed the mutations in their presence, therefore, principle of estopple is attracted in all respects. In arriving to this conclusion, I am fortified the law laid down by the Division Bench of the Karachi High Court in Haji Muhammad Younas's case (PLD 1959 Karachi 755). The relevant observation is as follows:
"The principle which is incorporated in Section 115 of the Evidence Act is a simple and equitable doctrine which lays down that if a person has acted to his detriment or altered his position on the basis of any declaration, act or omission of another person, that other person will not be allowed in any suit or proceedings between himself and the other person or his representative to go back upon it to the detriment of the opposite party. The Privy Council said as far back as (1892) 19 A.P. 203 at P. 215 that:
"What the law and the Indian statute mainly regard is the position of the person who was induced to act; and the principle on which the law and the statute rest is, that it would be most inequitable and unjust to him that if another, be a representation made, or by conduct amounting to a representation, has induced him to act as he would not otherwise have done, the person who made the representation should be allowed to deny or repudiate the effect of his formal statement, to the loss and injury of the person who acted on it."
The aforesaid proposition of law is also considered by the Honourable Supreme Court in Haji Ghulam Rasool's case (PLD 1971 S.C. 376) and laid down the following principle:--
"It is true that entries in the mutation registers are by themselves not conclusive evidence of the facts which they purport to record but they are, nevertheless, not an "unimportant part of the testimony as to a fact which is available", as observed by the Judicial Committee in the case of Nageshar Baksh Singh v. Mt. Ganesh (AIR 1920 PC 46). The weight and importance to be attached to them, is in no way, diminished by the fact that they have been allowed by those who were going to be adversely affected by them to remain unaltered for such a large number of years, even though they were aware of the entries in the records.
The doctrine of estoppel is not confined to the matters dealt with under Section 115 of the Evidence Act, for, as pointed out by Garth, C.J. in the case of Ganges Manufacturing Co. v. Sourajmull (ILR 5 Cal. 669) "estoppels in the sense in which the term is used in the English legal phraseology are matters of infinite variety and are by no means confined to the subjects dealt with in Chapter VIII of the Evidence Act". It has been defined in Halasbury's Laws of England (2nd Edn.), Vol. 13, "as a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability". It is in these sense that it has often been held that even as a rule of evidence or pleading a party should not be allowed to approbate and reprobate. This principle was acted upon by the Judicial Committee in the case of Lakshmana Goundan v. Subramania Aiyar (AIR 1924 PC 44).
Muhammad Shafi Halqa Patwari D.W.3, Lal Din Qanungo D.W.4, Ch. Liaqat Ali Ex-Tehsildar D.W. 5, who stated in their statements that the mutations were entered and sanctioned in presence of the petitioner, who has also signed the mutations in presence of them. It is settled principle of law that man can tell a lie but the documents cannot. The documents were proved by the revenue officials, who have no enmity with the petitioner/plaintiff and no love with the respondents. This fact brings the case in the area that the petitioner has no right to wriggle out from this situation on the well known principle of estoppel and waiver as the law laid down by the Honourable Supreme Court in Haji Ghulam Rasool and others vs. The Chief Administrator of Auqaf, West Pakistan (PLD 1971 S.C. 376). The material issue between the parties is Issue No. 3. In case Issue No. 3 is decided in favour of the respondents then question of belonging to faith of late Ata Muhammad is irrelevant as the petitioner himself signed the documents wherein it is mentioned that late Ata Muhammad is Shia. It is also admitted fact that E. D/4 affidavit was exhibited without objection by the petitioner although the petitioner has produced Abdul Hameed P.W.5, who is attesting witness of the affidavit, who has taken a stand that it was not executed whereas the scriber has admitted that he has executed the affidavit as the affidavit was exhibited without objection of the petitioner. The document is on the record, therefore, Courts are bound to look into it. According to the affidavit submitted by late Ata Muhammad shows that Ata Muhammad belongs to Shia sect. Coupled with the fact that some of the land is also sold out through registered sale-deeds. The petitioner has not challenged the same till date and also filed the present suit after considerable delay i.e. after six years, which is prescribed to file a suit for declaration. It is also settled principle of law that First Appellate Court has all the powers to reappraisal evidence while deciding the appeal exercising power under Section 96 of C.P.C. The Privy Council has laid down the parameter to interfere in the findings of the First Appellate Court while exercising powers under Section 115 of CPC, in "N.S. Vankatagiri Ayyangar and another vs. The Hindu Religious Endowments Board Madrass" (PLD 1949 P.C. 26). The relevant observation is as follows:
"This section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with maternal irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no powers to interfere because it differs, however profoundly. From the conclusion of the subordinate Court upon questions of fact or law"
It is pertinent to mention here that the judgment of the Privy Council is followed by this Court in "Board of Intermediate & Secondary Education, Lahore vs. Syed Khalid Mehmood" (N.L.R. 1985 Civil 114), which was up-held by the Honourable Supreme Court in C.P. No. 1146 of 1984 vide Judgment dated 31.3.1985, which was again re-affirmed and approved by the Honourable Supreme Court in Ghulam Qadir's case (PLD 1988 S.C. 625). The learned counsel of the petitioner fails to bring the case within the parameter prescribed by the Privy Council in the aforesaid judgment.
In view of what has been discussed above, I do not find any infirmity or illegality in the impugned judgment and decree of the First Appellate Court, therefore, the revision petition has not merit and the same is dismissed with no order as to costs.
(A.S.) Revision dismissed.
PLJ 2006 Lahore 417 (DB)
Present: Sayed Zahid Hussain and Syed Sakhi Hussain Bukhari, JJ.
MUHAMMAD ASHIQ and 9 others--Appellants
versus
WAPDA through its CHAIRMAN, LAHORE and 14 others--Respondents
ICA No. 575 of 2003 in W.P. No. 512 of 1987, heard on 2.3.2005.
Land Acquisition Act, 1894 (I of 1894)--
----S. 4--Acquisition of land--Award announced--Contention of appellants that land being scattered in parcels, therefore acquisition is mala fide and also not for public purposes repelled--Validity--Main strain of objections and arguments put up by petitioners is that land acquired is not for Government nor it is for public purposes--Central material testing laboratories important component of Wapda Complex in village has already been sanctioned by Federal Government funds have been allocated and construction of building is awaiting demarcation and handing over of land to Dam Monitoring Organization, Subordinate Deptt. of Wapda--If land acquired is not put to use for which acquired, there is adequate provision in land Acquisition Act to deal with such situation--As such no mala fides are involved--Contention as to the effect of land being scattered in parcels and that therefore, acquisition be held to be a mala fide did not find favour with single Judge--Like wise contention that some other land owned by few others was not acquired does not ipso facto lead to any conclusion of mala fide on part of collector or commissioner--Assistant Commissioner, was not empowered to act as collector for purpose of Act of 1894--Award rendered on basis of said proceedings cannot be sustained--Petitions were partly allowed to that extent, that part of judgment has not indeed been assailed by respondents, which declaration thus binds the respondents--Held: No new case can be set up in appeal nor judgment of single Bench can be assailed on any such plea--Appeals dismissed. [Pp. 422 & 423] A, B, C, D & E
Mr. Faisal Islam, Advocate for Appellants.
Mr. Sajjad Hussain Naqvi, Advocate for Appellants (in other cases).
Mr. Munir Ahmad Bhatti and Muhammad Mudassar Bodla, Advocates for Respondents.
Dates of hearing : 28;.2.2005 & 2.3.2005.
Judgment
Syed Zahid Hussain, J.--This Intra Court Appeal and two connected appeals i.e. ICA No. 565/03 and ICA No. 579/03 are directed against the judgment of the learned Single Judge dated 15.10.2003 whereby W.P. No. 512/87 and W.P. No. 419/87 were partly allowed observing "For what has been stated above, both these writ petitions are partly allowed only to the extent of re-determination of compensation payable to the petitioner by the concerned Land Acquisition Collector while the proceedings for acquisition of the land in dispute are upheld. The petitioners will be associated by the learned Land Acquisition Collector in the process of re-determination of the compensation and they will be entitled to produce evidence in support of their claim. No order as to costs."
The case sought to be setup by the appellants/writ petitioners in essence was that the whole acquisition process commenced with the issuance of Notification dated 8.1.1986 was mala fide; it was not for a public purpose; and the acquisition was meant for Water and Power Development Authority Employees Co-operative Housing Society Limited, which had been selling the plots and indulging in commercial activity. A case of discrimination was sought to be made that land situated within the vicinity of the land acquired, which was owned by `Roti Plant Corporation' and one Saith Abid had not been subjected to acquisition.
M/s. Sajjad Hussain and Faisal Islam, Advocates have been heard on behalf of the appellants, who have reiterated the contentions raised before the learned Single Bench with the addition of a plea centering around Section 39 of the Land Acquisition Act, 1894 and judgment of the Hon'ble Supreme Court in Federation of Pakistan through G.M. Telegraph & Telephone Department, Lahore Telephone Region, Lahore v. Province of Punjab through Land Acquisition Collector/Assistant Commissioner, Headquarters, Lahore and 2 others (1993 SCMR 1673).
Mr. Munir Ahmed Bhatti Advocate the learned counsel for the respondents has with reference to the report and parawise comments (filed in the writ petition and the material on the record) endeavoured to support the judgment of the learned Single Judge, that all material aspects of the matter had been adverted to in the judgment and the view taken by the learned Single Judge is borne out by the record and is consistent with the law on the subject. It is contended by him that no new plea can be allowed to be raised in appeal.
The respective contentions of the learned counsel have been considered.
The land in dispute is situated in village Khamba Tehsil and District Lahore. Notification under Section 4 of the Land Acquisition Act, 1894 was made on 8.1.1986 reciting that the land was required by the Government "at the public expense for a public purpose namely for the construction of WAPDA offices and official residential colony". Notification under Section 17(4) was, thereafter, issued on 1.10.1986 and award was announced on 17.1.1987. This factual background of the matter, which gave rise to writ petitions, has been taken note of and elaborately dealt with by the learned Single Judge. The contentions, which were raised before the learned Single Judge on behalf of the appellants were:--
"(i) As per the disputed notifications, the land in dispute is acquired for WAPDA and not for the Government and WAPDA being a Corporation, the disputed acquisition is not for public purpose.
(ii) The land in dispute falls within the area development scheme of the WAPDA Co-operative Housing Society, Respondent No. 5 (herein-after referred to as the Society) and the Society is going to the ultimate beneficiary, the society had proposed to acquire the land including the land of the petitioners but they abandoned the acquisition proceedings and purchased land through private negotiations from other land owners. It was further contended that Col. (Retd.) Ikhlaq Gillani, Secretary of the Society has been representing WAPDA and had submitted a reply to the objections of the petitioners before the Land Acquisition Collector. According to him representation of WAPDA through Secretary of the Society in the disputed acquisition proceedings affirms that the land was in fact, acquired for the Society.
(iii) That the proceedings of acquisition were mala fide. The submission in support of this plea is that according to the site plan, which was filed on the record of this writ petition, the acquired land was situated in scattered pieces, it was not in a compact block and therefore ostensibly it was not meant for the purpose for which it was acquired. The other submission in support of this plea is that land of one Seth Abid and the Roti Corporation also falls within the WAPDA Town Scheme, which was not touched.
(iv) It was also contended that the WAPDA had initially asked the Society to hand over an area measuring 400 kanals for the purpose but the society refused on which acquisition proceedings were initiated. According to him the Society has already purchased land in excess of their requirement and the land required for the purposes of construction of WAPDA offices and the residential colony could be conveniently spared by the Society.
(v) That except for the construction of the Material Testing Laboratories, on a small area, the acquired land not been utilized.
(vi) The objections of the petitioners were not duty considered by the learned Land Acquisition Collector and personal notices under Section 9 of the Land Acquisition were not even served on the petitioners.
(vii) Up to 17.12.1986 Mr. Safdar Mahmood (Assistant Commissioner, Headquarter, Lahore) had been the duly notified Land Acquisition Collector who was replaced Mr. Farooq Ahmed Khan. He was appointed as Assistant Commissioner on 17;.12.1986 and only by virtue of order dated 11.1.1987 of the learned Commissioner powers of Collector under Act 1 of 1894 were conferred upon him. His submission precisely is that the proceedings taken on 4.1.1987 and 5.1.1987, which included recording of the statement of the Patwari, the basis of the award, were wholly without jurisdiction and the award rendered by him stands vitiated.
(viii) Notification under Section 17(4) was also challenged on the ground That there was no urgency;. He referred to the comments of the learned Commissioner, to contend that he had not even adverted to the contention of the petitioners in his report and para-wise comments.
Suffice it to observe that all aspects of the matter have been duly adverted to by the learned Single Judge. It has been held that "requirement of the land for WAPDA and the residential colony for the staff serves a public purpose because the entire scheme is to be executed through public funds. Even acquisition for a Co-operative Housing society has been held to be valid in Dr. Muhammad Nasim Javed vs. Lahore Cantonment Housing Society Ltd. and 2 others (PLD 1983 Lahore 552)." The above view also finds support from Muhammad Ishaq and others v. Government of Punjab and others (2002 SCMR 1652) wherein it has been held that "We have examined the relevant provisions of the Land Acquisition Act with the assistance of learned counsel for the petitioners and find that acquisition of any land for a Company may not necessarily be for "public purpose" as defined and contemplated by law with the same strictness as the said expression was made applicable in the other cases." Reference at this juncture may also be made to Manubhai Jethalal Patel and another v. State of Gujrat and others (AIR 1984 S.C. 120) wherein acquisition made for Gujrat State Road Transport Corporation, a company within the meaning of Companies Law had been in controversy and it was held that "Even where land is acquired for a company, the State Government has the power to acquire land for a public purpose from the revenue of the State. In other words, this is an acquisition for public purpose with contribution from the State revenue. The state is acquiring land to carry out public purpose with the instrumentality of the Gujrat State Road Transport Corporation. It is not an acquisition for a company with the funds exclusively provided by the company which would attract part VII of the Land Acquisition Act. In our opinion, the High Court is right in reaching the conclusion that neither part VII of the Land Acquisition Act nor the Company Acquisition Rules would be attracted. Therefore, we are in agreement with the conclusions reached by the High Court." It was remarked that even a contribution of Rs. 1/- from the State revenue could be held adequate that the acquisition was for public purpose with State fund. In Girija Dubey and others v. State of Bihar and others (AIR 1985 Patna 15) also a similar view was taken wherein the acquisition of land for construction of residential houses for the purpose of company namely M/s. Hayderabad Asbestos and Cement Product Ltd., as made. The acquisition was upheld that the same was for public purpose and that it was not necessary to go through the procedure laid down under part VII of the Act. Reference made by the learned counsel for the appellants to Federation of Pakistan through G.M. Telegraph & Telephone Department, Lahore Telephone Region, Lahore v. Province of Punjab through Land Acquisition Collector/Assistant Commissioner, Headquarters, Lahore and 2 others (1993 SCMR 1673) is inapt inasmuch as in that case the acquisition was made for construction of residential colony for the Punjab Board of Revenue Employees Society, Lahore whereas the said land had already been purchased by the Pakistan Telephone & Telegraph Department from the Settlement Department for a public purpose. In that context Section 39 of the Land Acquisition Act, 1894 came to be considered by the Hon'ble Supreme Court and it was observed that "There is no doubt the acquisition of the land for a Housing Scheme formulated by the Board of Revenue Employees Housing Society Limited is a public purpose. By public purpose is meant an object or aim in which the general interest of the community as compared with the interest of an individual is involved, but it can hardly be denied that the object for which the land has been purchased by the Telegraph and Telephone Department from the Settlement Authorities is also a public purpose. The learned counsel for the appellant has drawn our attention to the transfer order under which the land in question together with other area was purchased by the Department from the Settlement Department and submitted that the land so purchased has to be utilized for construction of a housing colony for the employees of the Department, but so far as the appellant's land acquired at the instance of the Housing Society is concerned. It is essentially earmarked for construction of Telecommunication Building. Office and for allied objects mentioned in letter dated 9.4.1985." It was in that context i.e. public purpose of two competing departments that the acquisition made for Board of Revenue Employees Housing Society was set aside. In the present case it has rightly been held by the learned Single Judge, that the land was validly acquired for public purpose.
The setting up of Central Testing Laboratories in consultation and collaboration of UNDP and WAPDA Thermal Institute could well justify and be made basis for invoking emergency provisions of Section 17(4) of the Act and making provisions of Section 5-A of the Land Acquisition Act, 1894 as inapplicable. The learned Single Judge has placed reliance upon Rasheed Ahmed and 64 others v. Province of Sindh and others (1986 CLC 1841) and Sardar and 149 others v. Government of N.W.F.P. (1997 CLC 812) in support of such view. The perusal of report/comments would lead to the justification not only for acquisition but also for invoking emergency provisions. The position stated is "As UNDP was pressing for early construction of laboratories we in turn had to request the Collector and the Commissioner to expedite the process. The Notification U/S. 17 Annex `G') was Gazetted on 4.10.1986 under order of Commissioner Lahore Division. By now the requirement of land for the Central Laboratories had been more or less firmed up, with a little margin for any later adjustment. In Section 17 the land requirement had been finalised at 478 Kanals 18 Marlas. It has been further stated that "The main strain of objections and arguments put up by the Petitioners is that the land acquired is not for Govt. nor it is for public purposes. If WAPDA. A Federal Govt Organization, is not entitled to compulsory Acquisition of land, no Grid Stations, Buildings, Power Houses and Transmission Lines could be built in the Country, WAPDA has paid for the land in question. The Central Material Testing Laboraties, an important component of WAPDA complex in Village Khamba has already been sanctioned by the Federal Government, funds have been allocated and construction of building is awaiting demarcation and handing over of land to the Dam Monitoring Organization a subordinate Deptt of WAPDA. If the land acquired is not put to the use for which acquired, there is adequate provision in the Land Acquisition act to deal with such a situation. As such no mala fides are involved". We have been informed by the learned counsel that Central Material Testing Laboratries and WAPDA Thermal Institution have already been setup and functional. We, therefore, do not find any valid justification to differ with the view of the learned Single Judge as to the invocation of emergency powers envisaged by Section 17 of the Act. It fell within the domain of subjective assessment and satisfaction of the authority.
The contention as to the effect of the land being scattered in parcels and that therefore, the acquisition be held to be a mala fide did not find favour with the learned Single Judge. It has not even impressed us, as acquisition cannot be rendered illegal on such a ground. Likewise the contention that some other hand owned by few others was not acquired does not ipso facto lead to any conclusion of mala fide on the part of the Collector or the Commissioner.
It has rightly been remarked by the learned Single Judge that "In fact that proceedings taken by the learned Assistant Commissioner on 4.1.1987 and 5.1.1987, were the basis of determination of the compensation awarded to the petitioners. On the said dates, Mr. Farooq Ahmed Khan, the learned Assistant Commissioner, was not empowered to act as Collector for the purpose of Act I of 1894. Therefore, the award rendered on the basis of the said proceedings cannot be sustained." It was thus that petitions were partly allowed to that extent. That part of the judgment has not indeed been assailed by the respondents, which declaration thus binds the respondents.
Suffice it to observe that no new case can be set up in appeal nor the judgment of the learned Single Bench can be assailed on any such plea, which was not taken before him.
As a result we see no valid justification to interfere with the impugned judgment. The appeals are dismissed accordingly. No order as to costs.
(A.S.) Appeal dismissed.
PLJ 2006 Lahore 423
Present: Mian Saqib Nisar, J.
SAFDAR ALI--Petitioner
versus
NAVEED SADIQ etc.--Respondents
C.R. No. 1771 of 2005, heard on 20.2.2006.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 74, 75 & 76--Secondary evidence--Enforcement of agreement to sell--Executing of documents--Production of document itself in original claimant party is enable to produce evidence--Matter is required to prove a document by primary evidence--Scope--Execution of document has been denied by respondents--Original document can get destroyed or lost cannot be ruled out--Provisions of Art. 76 allowed a party to lead secondary evidence of document in terms of Art. 74, but would not be allowed as a matter of right--Secondary evidence would be put to strict test of proof not only about the loss of documents--If original document before evidence stage is arrived, party is precluded to adduce the document itself, strict proof about the existence, execution and loss of document, secondary evidence can be permitted--Petition allowed. [P. 425] A, B & C
Kh. Saeed-uz-Zafar, Advocate for Petitioner.
Malik Muhammad Aslam Awan, Advocate for Respondents.
Date of hearing : 20.2.2006
Judgment
The petitioner is a plaintiff in a suit for the specific performance filed against the respondents through which, he seeks the enforcement of the agreement to sell dated 21.3.1997, regarding the Bungalow in dispute, allegedly executed by the respondents and also claims to have made the payment of the amount of Rs. 50,00,000/- as the advance money. Alongwith the suit, the photo copies of the agreement to sell and the receipt of the advance/earnest money amounting to Rs. 50,00,000 were also filed; but the execution of the documents and the receipt of consideration has been vehemently denied by the respondents. It may be pertinent to mention here that the respondents have also filed two suits, one for the cancellation of the same agreement to sell and the other for the possession of the suit property. All these cases have been consolidated; when the case of the petitioner reached the stage of his evidence, he moved an application under Article 76 of the Qanun-e-Shahadat Order, 1984 (the Order), asserting that the agreement to sell and the receipt in original, are lost and therefore, he should be permitted to produce/adduce secondary evidence. Alongwith the application, the petitioner appended the Rapt, which he got registered with the concerned police station about the loss of documents. The learned trial Court, instead of inquiring into the matter, within the purview of Article 76 ibid has summarily dismissed the application, holding that "The petitioner did not file this document with his plaint as required by the C.P.C. The photo copy of a document, which was categorically denied by the defendant/respondent does not come within the purview of Section 74 Qanun-e-Shahadat Order, 1984, therefore, the production of photo copy is not admissible in evidence u/S. 76 Qanun-e-Shahadat Order, 1984; it will highly prejudice the case of defendants, therefore, the application is dismissed."
Learned counsel for the petitioner by relying upon the Articles 74 and 76, states that it is the right of the petitioner to produce the secondary evidence of the documents, which he is able to prove that the originals has been lost. It is further stated that alongwith the suit, the photocopies of the original agreement and the receipt were also appended, the petitioner was obliged to tender the original documents at the time of evidence, and these are the two documents upon which his suit is based, therefore, the view of the Court below that original should have been filed alongwith the plaint/suit and the omission in this behalf, disentitle the petitioner to adduce secondary evidence is illegal and misconceived.
Heard. According to Article 75 of the Order, a party to a matter is required to prove a document by primary evidence, which undoubtedly means the production of the document itself in original. However, the possibility that the original document may get destroyed or lost cannot be ruled out. Thus in such an eventuality, the provisions of Article 76, allows a party to lead secondary evidence of the document in terms of Article 74. But this should not be allowed as a matter of course or right to the concerned, but the party asking for secondary evidence should be put to the strict test of proof not only about the loss of the document, but also its very existence, especially in the cases, where the execution of the document has been denied by the other side. Obviously, this can be done only if the claimant party is enabled to produce evidence to both the above effect. Unfortunately, in the present case, this exercise has not been conducted by the Court below, rather the Court has fallen prey to extraneous considerations, loosing sight of the fact that the said documents are those upon which the petitioner has based his claim and in legal parlance are termed as documents "sued upon". Therefore, such documents could in the originals be tendered by the petitioner at the turn of his evidence. However, if the original document before the evidence stage is arrived, has been lost or destroyed etc. and for such reason, the party is precluded to adduce the document itself; resort could always be had to Article 76 of the Order, and upon strict proof about the existence, execution and loss of the document, the secondary evidence can be permitted. But this could only be done after enabling the parties to adduce evidence in this behalf. The impugned order, which does not conform to the above rules, cannot be sustained and is hereby set aside. This petition is therefore, accordingly allowed with the direction that the Court below shall decide the petitioner' application for adducing evidence afresh in accordance with law.
(A.S.) Petition allowed.
PLJ 2006 Lahore 425 [Multan Bench Multan]
Present: Muhammad Nawaz Bhatti, J.
AGHA NADIM and another--Petitioners
versus
PROVINCIAL QUALITY CONTROL BOARD GOVERNMENT OF THE PUNJAB HEALTH DEPARTMENT, CIVIL SECRETRIAT, LAHORE through its CHAIRMAN and 5 others--Respondents
Writ Petition No. 2546 of 1995, decided on 21.4.2005.
(i) Constitution of Pakistan, 1973--
----Art. 199--Quashment of F.I.R.--Held: Every criminal case should be judged on its own facts & circumstances--It was not necessary that before moving High Court petitioners must move trial Court u/Ss. 249-A or 265-K Cr.P.C.--If Court was satisfied that on the basis of false complaint, process of Court was being abused to subject to accused for unnecessary harassment, it has power to quash such criminal proceedings. [P. 429] E
(ii) Drugs Act, 1976 (XXXI of 1976)--
----S. 22--Punjab Drugs Rules 1988--R. 4(3)--Held: Report of Drugs Testing Laboratory was not supplied to petitioners, so they could not challenge the same u/S. 22--Moreover case was registered on the complaint of drug inspector, on the permission of Provincial Quality Control Board which did not issue any show cause notice to petitioners u/R. 4(3) of the Rules 1988--Registration of case against petitioners was held to be without lawful authority. [Pp. 428 & 429] A, C & D
(iii) Drugs Act, 1976 (XXXI of 1976)--
----S. 17--Appointment of drug inspector--In presence of one drug inspector appointed for a District, appointment of another inspector for the whole division, including said District--Held: Such appointments are overlapping. [P. 428] B
1968 SCMR 1256; 1989 P.Cr.L.J. 507 & 1985 SCMR 257, ref.
Sh. Zia Ullah, Advocate for Petitioners.
Mr. Muhammad Sarwar Bhatti, AAG for Respondents Nos. 1 to 5.
Date of hearing : 13.4.2005.
Judgment
Briefly stated the prosecution case is that on 18.12.1994, Respondent No. 4 inspected the premises of M/s Imran Drug Centre, Club Road, Vehari, recovered and seized 47 x 15 mg skilax Drops, Batch No. 7318, purported to be manufactured by M/s Highnoon Laboratory, Lahore/Respondent No. 6, on Form No. 5, which were suspected to be spurious due to a number of differences in the packing material. A sample of the same was sent to Drug Testing Laboratory Lahore for test/analysis. The Government Analyst/Respondent No. 2 reported the said drug to be spurious vide Test Report No. TRA 32/DTL dated 2.1.1995. Muhammad Younas, the Chief Manager production of M/s Highnoon Laboratory, Lahore, examined the said drug in presence of Respondent No. 4 and stated that the said drug was not manufactured by M/s Highnoon Laboratory, Lahore, and hence a supurious as defined under Section 3(ZB)(ii) of the Drugs Act, 1976. M/s Imran Drug Centre, Club Road, Vehari, has supplied the invoice/warranty as a proof of his purchase of the said drug from M/s Azmat Medical Store, Arif Bazar, Burewala. M/s Azmat Medical Store, Arif Bazar, Burewala, has also supplied the invoice/warranty as a proof of his purchase of the said drug from M/s Quality Traders, 7-A, Alminar Market, O/s Lahore/Petitioner No. 2. M/s Quality Traders has supplied the Invoice/Warranty as a proof of their purchase of the said drug from M/s Gujrat Medicine House, Jinnah Medicine Market, Lahori Gate, Lahore. On 30.3.1995, Respondent No. 4 got the case FIR No. 46 registered against the petitioners with Police Station, City Vehari.
Through this writ petition, the petitioners have prayed that the permission granted by Respondent No. 1 for the registration of the case against the petitioners, the appointment of Respondents Nos. 2, 3 & 4 as Government Analyst, Punjab, and Drug Inspector, Vehari District, Vehari, respectively, and the consequent registration of the case against the petitioners by Respondent No. 5 at Police Station City Vehari, under Section 14 of the Dangerous Drugs Act, 1930, and Section 23, read with Section 27 of the Drugs Act, 1976, may kindly be declared to be without lawful authority and of no legal effect and the FIR may be quashed.
Learned counsel for the petitioners has contended that before granting the permission under Sections 11(5)(b) and 19(6) of the Drugs Act, 1976, read with Rule 4 of the Punjab Drug Rules, 1988, for the registration of the case against the petitioners, Respondent No. 1 failed to observe the principles of natural justice by not issuing show cause notices to the petitioners, getting their replies or providing them an opportunity of hearing, therefore, the permission granted by Respondent No. 1 for registration of the case is a nullity in the eye of law; that the appointments of Mian Ghulam Nabi as Drug Inspector for whole of the Multan Division, including Vehari District and Muhammad Zubair as Drug Inspector for the District Vehari are in violation of the provisions of the Drugs Act, 1976 being overlapping appointments and, therefore, the registration of the case against the petitioners by Respondent No. 5 at the instance of Respondent No. 4 is a nullity in the eye of law; that under Section 22 (4) of the Drugs Act, 1976, an accused person has the right to challenge the result of the Government Analyst within 30 days and it is the report of the Laboratory specified in sub-section (5) of Section 22 of the Drugs Act, 1976 which is to be treated as final in the case. As the report of the Government Analyst dated 2.1.1995 has not been supplied to the petitioners, they have not challenged the same before the Laboratory specified in sub-section (5) of Section 22 of the said Act, therefore, the report of the Government Analyst dated 2.1.1995 being not final, no case could be got registered against the petitioners and that as the offence of manufacture and sale of the drug in question took place at Lahore, no case could be registered against the petitioners at Police Station City Vehari. Reliance is placed upon Agha Nadim and another vs. The Station House Officer Police Station, Lohari Gate, Lahore and another (1998 P.Cr. L.J. 181) and Shuja Ullah vs. The State and others (1994 P.Cr.L.J. 1065).
On the other hand, the learned Assistant Advocate General has vehemently opposed the petition and support the comments submitted by Respondents Nos. 1, 2, 3, 4 and 6. He has submitted that an alternate remedy is available under Sections 249-A & 265-K Cr.P.C. to the petitioner therefore, they must seek that remedy before the trial Court.
I have heard learned counsel for the petitioners as well as the learned Assistant Advocate-General and gone through the comments submitted by Respondents Nos. 1, 2, 3, 4 and 6.
The case was registered on the complaint of Respondent No. 4 who was granted permission by Respondent No. 1 for the said purpose. But the permission was granted to Respondent No. 4 without issuing show-cause notices to the petitioners, which is the requirement of sub-rule (3) to Rule 4 of the Punjab Drugs Rules, 1988. Sub-rule (3) to Rule 4 is reproduced below:
"The Board shall examine the cases referred to it by any Inspector under the Act before directing him to prosecute such accused or recommending it to the Licencing Authority for cancellation or suspension of the Licence:
Provided that no such action shall be taken without a show-cause notice to the accused".
Comments submitted by Respondent No. 1 also reveal that show-cause notices were not issued to the petitioners before granting permission to Respondent No. 4 for registration of the case.
"The Federal Government or a Provincial Government may, by notification in the official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Federal Inspectors or, as the case may be provincial Inspectors for the purpose of this Act within such local limits as it may assign to them respectively:
Provided that no person who has any financial interest in the manufacture, import, export or sale of any drug shall be appointed:
Provided further that a person serving under the Federal Government or another Provincial Government shall not be so appointed without the previous consent of such Government".
In presence of appointment of Muhammad Zubair as Drug Inspector for the District Vehari, which is the concerned District, appointment of Mian Ghulam Nabi as Drug Inspector for whole Multan Division including District Vehari is overlapping.
The recovered sample of the drug in question was sent by Respondent No. 4 to Respondent No. 2 for test and analysis, who vide his report dated 2.1.1995 found the same to be of substandard quality. But the said report was not supplied to the petitioners and for this reason they had not challenged the same under Section 22 of the Drugs Act, 1976. Comments of Respondent No. 4 reveal that a copy of test report was supplied to the petitioner vide letter dated 5.1.1995. But the said letter was addressed to Agah Nadeem M/s Gujrat Medicine House, Jannah Medicine Market Lahori Gate, Lahore, and not to Agha Nadeem M/s Nadeem Medical Store, Academic Road, Lahore Cantt. In this petition Petitioner No. 1 Agha Nadeem himself says that he has nothing to do with M/s Gujrat Medicine House, Jannah Medicine Market Lahori Gate, Lahore. Therefore, the report being not final, the registration of the case against the petitioners is without lawful authority. Even otherwise case cannot be registered at Vehari as the offence allegedly took place at Lahore.
So far as the contention of the learned Assistant Advocate-General that the petitioners must seek an alternate remedy under Sections 249-A and 265-K Cr.P.C. before the trial Court is concerned, suffice it to say that it is not necessary that before moving the High Court the petitioners must move the trial Court under Sections 249-A or 265-K Cr.P.C. Every criminal case should be judged on its own facts and circumstances. This Court has power to quash criminal proceedings if satisfied that a false complaint had been brought and the process of Court was being abused to subject to the accused to unnecessary harassment. Reliance in this behalf is placed upon Raja Haq Nawaz vs. Muhammad Afzal and others (1968 SCMR 1256), Ghulam Ali vs. Javid and another (1989 P.Cr.L.J. 507), Abdul Ghafoor vs. The State (NLR 1999 Criminal 66) and Mian Munir Ahmad vs. The State (1985 SCMR 257).
In view of the above circumstances, this writ petition is accepted and the permission granted by Respondent No. 1 for the registration of the case against the petitioners being unlawful authority, the FIR in question is quashed.
(J.R.) Writ petition allowed
PLJ 2006 Lahore 429 [Rawalpindi Bench Rawalpindi]
Present: Muhammad Muzammal Khan, J.
GUL BIBI (WIDOW) and 2 others--Petitioners
versus
SURAYYA BEGUM (WIDOW) and 2 others--Respondents
Civil Revision No. 595-D of 2000, heard on 29.6.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII, R. 3--Closure of evidence--Validity--Case was adjourned through routine order on account of indisposition of petitioner's counsel which was not opposed by respondents/defendants--Neither any warning was made, as it would be last opportunity, nor petitioners were penalized with any cost--Held: Closure of evidence was not justified--High Court remanded case to Civil Court giving petitioners' one final opportunity to produce their evidence, subject to cost of Rs. 1,000/-. [Pp. 431 & 433] A, B & C
1985 SCMR 585 & PLD 1986 SC 129, ref.
Malik Shaukat Ali, Advocate for Petitioners.
Mr. Sajid Ilyas Bhatti, Advocate for Respondents.
Date of hearing : 29.6.2005.
Judgment
Instant revision petition assailed judgments/decrees dated 10.10.1998 and 25.7.2000 passed by the learned Civil Judge and learned Additional District Judge, Rawalpindi, whereby petitioners' suit and appeal were dismissed respectively.
Succinctly, relevant facts are that Petitioner No. 1 claiming herself to be a widow of deceased Anwar Aftab alongwith her two minor children filed a suit for permanent/mandatory injunction to the effect that they being descendents of the deceased were entitled to pensionary, gratuity and GP Fund benefits of late Anwar Aftab, who breathed his last on 15.5.1995.
Respondent No. 1 who is also a widow of late Anwar Aftab being defendant in the suit contested the same by filing her written statement, wherein she denied status of the petitioners as heirs/legal representatives of the propositus. Respondents Nos. 2 and 3 also contested the claim of the petitioners by filing their separate written statement. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. During the course of recording of evidence, learned counsel for the petitioners after recording statements of three PWs, wished to produce further evidence but the request was declined by the trial Court vide order dated 29.7.1998 by invoking provisions of Order XVII Rule 3 CPC on the ground that the case was lastly adjourned on their request and in presence of direction by this Court to conclude trial expeditiously, case cannot be adjourned. The trial Court after recording of evidence of the respondents/defendants dismissed the suit of the petitioners vide judgment/decree dated 10.10.1998.
Petitioners being aggrieved of the decision of the trial Court filed an appeal before the learned Additional District Judge where they specifically raised an objection to closure of their right to lead evidence vide order dated 29.7.1998, but remained unsuccessful as the same was dismissed on 25.7.2000. Petitioners thereafter filed instant revision petition, which was admitted to regular hearing and after completion of record has now been placed for final determination. Respondents, in response to notice by this Court, have appeared and are represented through counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Petitioners' right to produce evidence in support of their case was closed by the trial Court on 29.7.1998 and they while assailing final judgment/decree in the suit raised a specific plea about incorrect invocation of provisions of Order XVII Rule 3 CPC, but the learned Additional District Judge while deciding the appeal, has not adverted/addressed to this aspect of the case. Learned counsel for the petitioners stated at the Bar that this point was specifically argued at the time of hearing of appeal, but the same remained undecided, out of inadvertence of the appellate Court. Since the dispute is between the windowed ladies, I deliberately avoided to remit this case to the appellate Court for decision about applicability of provisions of Order XVII Rule 3 CPC and decided to resolve this controversy in the revision petition to avoid to void wastage of time.
Evidence of the petitioners stood closed on 29.7.1998 on account of their lapse to produce the remaining evidence, as according to the trial Court, case had been adjourned on their request. The interim order on the preceding date i.e. 27.7.1998 revealed that request for adjournment of the case was made by the petitioners on account of indisposition of their counsel, which was not opposed by the respondents/defendants. Petitioners were not warned that they will not be granted any more opportunity to produce evidence and at the same time, they were not penalized with anything, like costs etc. Adjournment of case from 27.7.1998 to 29.7.1998 appears to be through a routine order on the basis of which penal provisions of Order XVII Rule 3 CPC could not have been invoked. This view gets strength from judgment by the Hon'ble Supreme Court in the case of Syed Tasleem Ahmad Shah vs. Sajawal Khan etc. (1985 SCMR 585), wherein adjournment had not been objected by the plaintiff on earlier date and on the basis of it, order of closure of evidence of the defendant under Order XVII, Rule 3 CPC was set aside and the case was remanded for fresh decision after affording opportunity to the defendant to produce evidence. Alike view was taken by the Honourable Supreme Court Haji Muhammad Ramzan Saifi vs. Mian Abdul Majid and others (PLD 1986 S.C. 129). Respectfully following the dictum above noted, I am of the considered view that evidence of the petitioners could not have been closed on the basis of a routine order, as observed above.
Since the petitioners were not afforded proper/full opportunity of proving their case under a fake cover of direction by this Court to conclude the proceedings expeditiously which did mean that rights of the parties should be curtailed by incorrectly applying provisions of law, which were not applicable. Record of the trial Court revealed that inspite of closure of evidence of the petitioners on 29.7.1998, the case was not decided till 10.10.1998 and there are more than two intervening dates, hence grant of another opportunity by fixing case after couple of days, would have brought nothing adverse to the direction issued by this Court. As a matter of fact, a fake shelter under the directions by this Court was taken to deprive the petitioners of their right to produce evidence which course cannot be justified on the basis of any canon known for administration of justice.
For the reasons noted above, I am contained to hold that petitioners' evidence was illegally closed by the trial Court vide order dated 29.7.1998 and structure there-over by subsequent judgments/decrees by the trial/appellate Court cannot be allowed to remain intact. This revision petition is consequently accepted and besides setting aside judgments/decrees dated 10.10.1998 and 25.7.2000 passed by the learned Civil Judge and learned Additional District Judge, Rawalpindi, order dated 29.7.1998 by the trial Court is set aside, subject to payment of costs of Rs. 1000/-, with the result that suit of the petitioners shall be deemed to be pending before the trial Court, who shall afford one final opportunity to the petitioners for producing their entire evidence by fixing a specific date for this purpose and would decide the suit afresh in accordance with law. Parties are directed to appear before the trial Court on 12.7.2005.
(J.R.) Revision petition allowed.
PLJ 2006 Lahore 432
Present: Syed Hamid Ali Shah, J.
ABDUL MAJEED--Petitioner
versus
MEMBER (JUDICIAL-II) BOARD OF REVENUE PUNJAB, LAHORE and 2 others--Respondents
Writ Petition No. 19640 of 2004, decided on 14.7.2005.
West Pakistan Land Revenue Rules, 1968--
----R. 17--Constitution of Pakistan 1973, Art. 199--Appointment of Lambardar--E.D.O.R. appointed Respondent No. 3 as Lambardar not only on the basis of rule of primogeniture but also due to his being Hafiz-e-Quran, Young man of 35, has no previous history of anti-social activities, with sufficient land to meet the requirement of Zar-e-Bharat and an educated person to cope with demand of office of Lambardar--Revenue Board upheld decision of EDOR further holding that respondent had Ihata in the Chak, so was not an absentee--Impugned orders had no jurisdictional error or violation of any statute or law, as those were passed after hearing the parties, considering the record and relevant law on subject. [P. 434] A & B
PLD 1999 SC 484; PLD 1972 Rev. 16; PLD 1974 Rev. 82; 1982 SCMR 202; 1986 SCMR 1368; 2002 MLD 1844 and PLJ 2005 Lah. 594 ref.
Ch. Mushtaq Masood, Advocate for Petitioner.
Ch. Javed Rasool, Advocate for Respondent No. 3.
Date of hearing : 1.7.2005.
Order
Shah Muhammad Lambardar of Chak No. 324/JB Tehsil and District Toba Tek Singh died and the vacancy fell vacant, for which applications were invited. Eight persons including the petitioner applied for the appointment as Lambardar, the statements in this respect were recorded, reports from field staff officers were received and Deputy District Officer (Revenue) submitted report dated 13.11.2002 wherein he recommended the petitioner for appointment. Petitioner was appointed vide order dated 1.10.2003 by District Officer Revenue/Collector. Respondent No. 3 alongwith other candidates challenged the order of the appointment of the petitioner, in appeal, which was accepted on 10.2.2004, resultantly Respondent No. 3 was appointed as Lambardar in place of the 7.8.2004 refused to interfere in the impugned order of Respondent No. 2. The petitioner has called in question through the instant writ petition the order dated 7.8.2004 and 10.2.2004.
Learned counsel for the petitioner has contended that the claim of Respondent No. 3 for appointment as Lambardar is hereditary claim, on the basis of rule of primogeniture. Adds that such claim has been declared repugnant to the injunctions of Islamic in the case of "Maqbool Ahmad Qureshi versus Islamic Republic of Pakistan" (PLD 1999 SC 484). It was argued that the Collector after getting report from the Field Staff Officers, considered the petitioner as a suitable candidate. The opinion of Collector cannot be brushed aside by Respondent No. 1, unless such opinion is perverse or without any lawful justification. He argued further that the Board of Revenue has not followed its own policy in this respect and referred to the judgments of the Board of Revenue in the cases of "Abdul Salama versus Muhammad Amir Khan Rajpoot" (PLD 1972 (Revenue) 16) and Haji Burhan versus Haji Ibrahim" (PLD 1974 Revenue 82). He has lastly contended that Respondent No. 3 is an absentee and does not possess land in the area to meet the requirement of Zar-e-Bharat.
Learned counsel for Respondent No. 3, on the other hand, fully supported the impugned decision and rebutted the arguments of the learned counsel for the petitioner. He referred to the voter list of the village to show that the Respondent No. 3 is a registered voter of the village although his name appears in the voter list of another village as pointed out by the learned counsel for the petitioner. He has referred to the National Identity Card of Respondent No. 3 and the receipts for the payment of Abiana which show the residence of Respondent No. 3 in Chak No. 324/JB. He has lastly argued that instant writ petition is not maintainable as the appointment as Lambardar is not a vested right and the decision of Member Board of Revenue, even if assumed to be erroneous, does not call for interference in the exercise of writ jurisdiction by High Court. He in this respect placed reliance on the cases of "Abdul Ghafoor versus Member (Revenue) Board of Revenue" (1982 SCMR 202) "Sharf Din versus Qazi Abdul Jalil" (1986 SCMR 1368). "Muhammad Hanif versus Zulifqar Ali" (2002 MLD 1844) and "Amir Latif versus Member (Colonies) Board of Revenue" (PLJ 2005 Lahore 594).
Heard learned counsel for the parties and perused the record.
Respondent No. 2 (Executive District Officer Revenue) in his order dated 10.2.2004 has taken into consideration the requirement of Rule 17 of the West Pakistan Land Revenue Rules, 1968, while appointing Respondent No. 3 as Lambardar. He has not based his selection totally on the rule of primogeniture. He has taken into consideration other factors that he is Hafiz-e-Quran, young man of thirty five, has no previous history of anti social activities, owns sufficient land to meet the requirement of Zar-e-Bharat and is an educated person to cope with the demands of the office of Lambardar. Respondent No. 1 has upheld the decision through impugned order dated 7.8.2004 and while doing so he has held that petitioner is owner of IHATA in the Chak and has conceded frankly that his mother owns a house and a shop in adjoining Chak No. 326/JB. Respondent No. 1 mother in the adjoining Chak does not make him an absentee.
I do not find any jurisdictional error of violation of statute or law in the orders impugned before me. The Respondents Nos. 1 and 2 have decided the matter after taking into consideration the record of the case, hearing of the parties and law on the subject. No appraisal of the evidence can be made in the writ jurisdiction.
For the foregoing the instant writ petition has not merit and accordingly the same is dismissed.
(J.R.) Writ petition dismissed.
PLJ 2006 Lahore 434 [Bahawalpur Bench Bahawalpur]
Present: Sh. Hakim Ali, J.
Mst. TAHIRA KAUSAR--Petitioner
versus
S.H.O. etc.--Respondent
W.P. No. 2018 of 2005/BWP, decided on 27.7.2005.
Constitution of Pakistan (1973)--
----Art. 204--Contempt of Court Ordinance (I of 2004), S. 3--Contempt of Court proceedings against Advocate--Party wanting to get its case prolonged or transferred hired services of Mr. Riaz Hanif Rahi, Advocate who did not adopt legal way for transfer of cases, but under hand and illegal means to get cases transferred by mere filing of power of attorney in those cases--Cases in question, wherein such method was being adopted were enumerated by Court and same were pending--Such practice cannot be approved with blessings in as much as such practice was opening door of malpractice, corruption and undermining of authority of Court--Advocate concerned, manner and method of arguing case would indicate over awing and threatening Court with effort to low down and bow down the Court before him and to yield to his request at any cost--Disrespectful, disgraceful and spiteful attitude to get his desired goal is being adopted by him--Advocate such conduct prime facie, prove commission of contempt of Court--Show-cause notice was served upon Advocate concerned to explain his acts and conduct as to why contempt of Court proceedings, which prima facie were committed by him, should not be initiated/commenced against him under Art. 204 of the Constitution and Contempt of Court Ordinance 2004 and be punished for that. [Pp. 440 & 441] A, B & C
PLD 1971 SC 72; PLD 1976 SC 713; PLD 1961 Dacca 153 and PLD 1966 SC 94 ref.
Mr. Ahmed Mansoor Chisti, Advocate for Petitioner.
Mr. Riaz Hanif Rohi, Advocate for Respondent No. 2/Appellicant in R.A. No. 3-2005 BWP.
Ch. Shafi Muhammad Tariq, A.A.G. for Respondents.
Date of hearing : 27.7.2005.
Order
Do Justice is an easy word to say, but difficult for a Judge to do justice in an atmosphere, in which a member of Bar is out to frighten a Judge by his aggressive acts, conduct, exposure, and through bickering of spoken words, overawing attitude, threatening writings and speeches, using irresponsible, irrelevant words, provocative, repulsive, rebuffing, disrespectful, disgraceful words and sentences, hateful, contemptuous, scornful, insultive language, disturbing the Court by interfering into its proceedings, not allowing the Judge to regulate the proceedings of his Court, adopting stubborn attitude, maligning the dignity and honour of a Judge, poking nose into the personal affairs of a Judge, and displaying himself a champion for the rights of others, by lowering the honour and respect of a Judge, wasting the precious time of Court by extraneous, unrelated, immaterial words and giving arguments having no nexus with the case, filing frivolous applications, conducting cases without any legal justification, superseding another engaged learned counsel after alluring the litigant to get the desired result in any event, thrusting upon the Judge with threatening voice and in such a manner that the Judge be compelled either to accede to his dictative predetermined decision or be in such a frightened state of depression so as to leave the Court room. Whether a judge in such an atmosphere can do justice needs answer, because all the above noted facts, gestures, words, and acts are some of examples and kinds of conduct to which a learned member of Bar cannot claim privilege and exemption, and a Court cannot grant to a learned Advocate a licence to do the above noted deeds and actions, as these are stumbling blocks in the smooth, and speedy doing of justice.
A child of law (accused) is a protected person but not a child of Bar (learned Advocate/a member of Bar). The former is considered to be an innocent at its inception unless proved otherwise, while the latter has to explain his derogatory and contemptuous actions and has to claim lawful exemptions after proving the bona fides of legally justified permissions.
With heavy heart, I am dictating and passing this order with the following facts. One Mst. Tahira Kausar, a young lady, had approached this Court, by invoking the writ jurisdiction of this Court, beseeching the exercise of extra ordinary jurisdiction of this Court, when she had felt that her contract of marriage with Kausar Abbas, Respondent No. 3, on 14.5.2005, which she had solemnized with her own will and free consent, was being endangered by her father Muhammad Ibrahim, Respondent No. 2, a police official, through lodging of FIR No. 100/2005, with Police Station City C-Division, Rahimyar Khan, under Sections 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with Section 34 of the PPC. She had prayed for the quashment of that FIR through the writ petition, to save her marital contract and to keep it intact, by claiming that she being a sui juris girl of the age of 19 years, had contracted marriage with Kausar Abbas, Respondent No. 3, with her own wishes, who belonged to another caste of Korai Baloch. That this act and contract of marriage of the petitioner was disliked by her father, who was putting pressure to harass and humiliate the petitioner and wanted to get annulled that marriage contract. The collusiveness of SHO, Respondent No. 1 of the above noted Police Station, with Respondent No. 2 was also alleged in the above noted writ petition. At the time of arguments, it was brought to the police of this Court that Respondent No. 2, Muhammad Ibrahim, father of aforesaid lady, because of his influence in the Police Department was using his post and privileges as a vehicle, to get the desired results. In these circumstances, on 13.6.2005, this Court had summoned the Investigating Officer for 20.6.2005, on which date, Investigating Officer was present in person. Para-wise comments were got submitted from that SHO/I.O. by Respondent No. 2, although those were never called for. Learned Advocates of the petitioner as well as of Respondent No. 2 (Muhammad Ibrahim) were present on that date. After hearing the learned counsels, the Investigating Officer was directed to record the statement of Mst. Tahira Kausar, petitioner outside the Court room and to collect all those documents, which she wanted to produce before him. After recording of the statement of the petitioner, the Investigating Officer sought a short adjournment so as to complete the investigation and probe further into the matter, which request was allowed and date of 13.7.2005 was fixed.
Before 13.7.2005, an application in the shape of Review, under Order 47 Rule 1 read with Sections 114 and 151 of the CPC was filed by Muhammad Ibrahim, Respondent No. 2, through Mr. Riaz Hanif Rahi, learned Advocate in the office on 12.7.2005. This review application was got fixed for 13th of July 2005. Before the commencement of Court working, Mr. Riaz Hanif Rahi, learned Advocate stood up and asked the Court to take up his application first. Learned counsel was politely replied to take his seat and to appear when his turn would come up. At the time of call of the review application in urgent motion, the learned Advocate started commanding the Court with disrespectful attitude to transfer his case to another learned Bench because as per learned counsel, this Court had committed an excess of its jurisdiction and the impugned order of getting examined the lady was passed without jurisdiction. This Court went on listening the speech of the learned counsel which was without any relevance to the case. The learned Advocate was repeatedly asked as to why this case be transferred or entrusted to another learned Bench. At last, the answer came out from the learned Advocate with very scornful, contemptuous tone and as the Court had already passed an order on 21.6.2004 in Writ Petition No. 2027-2004/BWP (Citi Council versus Province of Punjab etc.) that the cases of Mr. Riaz Hanif Rahi, Advocate might not be fixed before this Court, so, that case must be transferred to another Bench. Learned Advocate was further asked as to how a review application can be heard by another learned Bench when it was filed by him for the review of an order passed by this Court in a pending case. There was no answer to it rather attitude was threatening. As the learned Advocate was shouting and repeating the same arguments by stating that he had got a fundamental right to be heard in the case and that this Bench must not hear this case. So, due to wasting of time with repetition, a few learned Advocates, at this stage, stood up and asked Mr. Riaz Hanif Rahi, learned Advocate to allow the others to attend their cases and to get his turn after regular business was done, if he wanted much time to address the Court with his arguments. They also requested this Court to grant time to Mr. Riaz Hanif Rahi, Advocate after the urgent and regular work was over. As the precious time of the Court was being wasted, so in these circumstances, Mr. Riaz Hanif Rahi, Advocate was asked to appear and argue his case at about 1.15 p.m. This Court after having a long and heavy list of cases and due to rush of work was able to take up the case at about 1.40 p.m. But the learned Advocate blatantly refused to argue the case by stating that it was 1.40 p.m., and he was not ready to argue the case. Although the refusal to argue the case and attitude was against decorum of the Court yet to grant an opportunity to the learned Advocate, the case was adjourned to 18.7.2005.
Before that date i.e. on 14.7.2005, another application Bearing No. 1641-2005/BWP was filed by Mr. Riaz Hanif Rahi, Advocate under Section 151 of the CPC read with Article IV of the Code of Conduct issued by Supreme Judicial Council. On 18.7.2005, again learned counsel stood up against his turn and asked the Court to decide this application first before proceeding further in the case. The same words and actions were repeated by the learned counsel, which also annoyed some of the learned members of the Bar, sitting in the Court room. Again the request was made by them to grant time to the learned Advocate after the remaining cause list was exhausted. At about 1.30 p.m. the case was taken up and the learned Advocate was allowed time at this choice. The learned Advocate asserted that he would like to get a decision upon C.M. No. 1641-2005/BWP first. He referred to Article IV of the Code of Conduct and read out that Article in the Court. As to how that Article of the Code of Conduct was relevant, nothing was stated by him. An objection was made by him that the office was directed by this Court on 21.6.2004 in W.P. No. 2027-2004/BWP not to fix the cases of the learned Advocate before this Court, but the office had fixed this case. Upon repeated insistence of the learned Advocate, it was told by this Court to the learned Advocate that he had himself filed review application, so it was necessary to be fixed before this Court and as the aforesaid order of this Court was an administrative order to its own office, so, the learned Advocate could not get any premium in the case for transfer from this Court to another learned Bench on the basis of that order. The learned Advocate was directed to argue the main case as well as the review application but he deviated from that course and stated in the following words :--
Learned Advocate was heard in spite of his scaring, scorning remarks, and shouting voices, trying to over awe the Court, making efforts to dictate his will, as he had already preconceived and pre-decided it for the transfer of case, at any cost. Learned Advocate some time referred to fundamental rights as enshrined in the Constitution of the Islamic Republic of Pakistan, 1973 and on the other occasion read out the Code of Conduct framed by the Supreme Judicial Council under Article 128(4) of the Constitution. In nutshell, the stress and insistence of the learned counsel was for the transfer of the case to another learned Judge. Learned counsel was asked to apply/approach to the proper higher forum for such transfer, if it was necessary for him, but the learned Advocate displayed stubborn, disgraceful, spiteful, insultive attitude and wasted about two hours in which the references to Supreme Judicial Council made were in fact threatening the Court to accede to his dictates and transfer the case or to face the consequences.
These actions, conduct and arguments of the learned counsel, were opposed by the learned counsel for the writ petitioner and it was explained by him that in fact Respondent No. 2 (Muhammad Ibrahim), who is a police serving employee and is posted as Reader of DSP (Legal), wanted to get replaced the statement of Mst. Tahira Kausar (writ petitioner), on the record by bringing the statement of his own choice and of his whims from the one which was recorded by the Investigating Officer outside the Court. Resisting the prayer of transfer, it was stated by him that there was no ground to accede to the request of transfer of the case. It was also stated by the learned counsel that to insist and to say for the transfer of the case from this Court to the other learned Court or Bench, was also a contempt of Court, which was being committed by the learned counsel for Respondent No. 2. It was further argued by the learned counsel that such tendency might be discouraged and should not be appreciated and encouraged. Submitting to the Court, the learned counsel stated that no relevant discussion/grounds or arguments were addressed by the learned counsel for Respondent No. 2, namely, Mr. Riaz Hanif Rahi and the derogatory, indecent and contemptuous attitude, should be discouraged and the frivolous applications, filed by Mr. Riaz Hanif Rahi, Advocate should not only be dismissed but the contempt proceeding be initiated against him as well as against Respondent No. 2.
Learned AAG fully supported the arguments of the learned counsel for petitioner.
The insistence of the learned counsel and the attitude, which was adopted by him on the previous dates of hearing in this case, led me to think that why such an insistence was being made for the transfer of the case. So, the office was directed to place all the cases, in which the learned counsel had been trying to get those cases transferred from this Court by mere filing of his power of attorney and had got the cases transferred. The office has presented the following cases:--
(i) C.R. No. 541-D-1994/BWP (Muhammad Iqbal etc. vs. Shuja-ud-Din Khan etc.)
This case was fixed in this Court on 11.1.2005, 1.3.2005 and 7.4.2005. On 15.4.2005, power of attorney was submitted on behalf of respondents Shuja-ud-Din Khan and two others by Mr. Riaz Hanif Rahi, Advocate although Ch. Masood Ahmed Bajwa, Ch. Abdul Mustafa Nadeem and Ch. Shafi Muhammad Tariq. Advocates were already representing the aforesaid respondents.
(ii) W.P. No. 193-2005/BWP (Malik Atta Muhammad vs. DIG etc.).
The case was pending and being fixed in this Court. Sardar Zafar Iqbal, Advocate was already appearing on behalf of respondents but on behalf of Respondent No. 6 (Malik Khuda Bakhsh, ASI) power of attorney was presented on 6.4.2005 by Mr. Riaz Hanif Rahi, Advocate.
(iii) Crl. Appeal No. 8-2002/BWP (Nazir Ahmed vs. The State).
This appeal was fixed in this Court on 18.11.2003 and 15.3.2004 when on behalf of Nazir Ahmed, appellant power of attorney was submitted on 13.4.2005 by Mr. Riaz Hanif Rahi, Advocate.
(iv) C.R. No. 378-2003/BWP (Mehmood Ahmed vs. Muhammad Irshad etc.)
Respondents Nos. 1 and 2 were being represented by Raja Muhammad Sohail Iftikhar, Advocate when power of attorney was submitted by Mr. Riaz Hanif Rahi, Advocate on 24.5.2005.
From the above noted cases, it has come to my notice that Mr. Riaz Hanif Rahi, Advocate has, in fact, invented a mechanism to get the cases transferred from this Court by mere filing of his power of attorney on behalf of a party. It also depicts that any party, if due to some reasons wants to get the case prolonged or transferred, in that event, services of Mr. Riaz Hanif Rahi, Advocate were being hired for this purpose, who was rendering it with great happiness. In other words, the legal way is not being adopted for the transfer of cases, but the under hand and illegal means are being practiced by the learned counsel prima facie, to get the cases transferred by mere filing of power of attorney in a case. It may be noted here with concern that all the above noted cases are those cases, which were pending and during the pendency of those cases, those were sought and got transferred, through the above mentioned mechanism, therefore, this practice cannot be approved with blessings because it is opening a door of malpractice, corruption and undermining the authority of the Court. Rather it has to be deprecated and discourage, the office is directed not to place the case of Mr. Riaz Hanif Rahi before any other learned Bench merely by filing of his power of attorney in any case pending before this Court in future.
As regards the manner and method of arguing the case, addressing the Court, threatening and over awing the Court with efforts to low down and bow down the Court before him and to yield to his request at any cost, the interruption in the working of the Court, the disrespectful, disgraceful and spiteful attitude towards the Court, so as to compel the Court to do what the learned counsel wants the result of the case, the contemptuous wording used in the Review Application No. 3 of 2005 and its filing before this Court, prima facie, prove the commission of contempt of Court. The insistence of Mr. Riaz Hanif Rahi, Advocate and his asking to The Court, to transfer the case and the filing of C.M. No. 1641-2005/BWP, referring the Code of Conduct issued by Supreme Judicial Council, all these facts tantamount to hurling threats to accede to the dictates of the learned counsel or to face the consequences before the Supreme Judicial Council. The above noted Urdu words and sentences are also displaying as to how the learned Advocate wanted to get his desired result from this Court. It may be noted that to ask a Judge of a superior Court to transfer the case to another learned Bench and not to hear the same is a gravest type of contempt of Court, particularly when no cogent reason is advanced. If the learned counsel is not satisfied with the decision of this Court, he can approach the superior Courts. But the learned Advocate has got no absolute privilege. He cannot make submissions in a manner, not approved in the traditional nature of courtesy, which is due to the Court. PLD 1996 S.C. 94 (Rashid Murtaza Qureshi vs. The State). Duty of lawyer is to uphold the prestige and honour of the Court and not to indulge in making statements, derogatory or insulting to the Presiding Officer. PLD 1961 Dacca 153 (The State vs. Delwar Hussain). Exposure has to be in a decorous and respectful language. PLD 1976 SC 713 (Hakam Qureshi President, District Bar Association, Lahore and 2 others vs. The Judges of the Lahore High Court through the Registrar and another). Lowering the authority of a Judge, interfering with a administration of Justice, scandalizing the character of a Judge, quality of word and imputing improper motive are the instances of contempt. PLD 1971 SC 72 (In re: Arif Nizami and 2 others (In the matter of Contempt of the Supreme Court).
All the above decisions have guided me to serve a Show Cause Notice upon the learned Advocate, Mr. Riaz Hanif Rahi to explain his acts and conduct as noted above as to why contempt proceedings, which prima facie, were committed by him before and in the view of this Court, as noted above, should not be initiated/commenced under Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 read with Contempt of Court Ordinance No. I of 2004 and he may not be punished for that.
Separate file or contempt proceedings be opened, kept and maintained by the office by retaining the copy of judgment in the file.
(A.A.) Order accordingly.
PLJ 2006 Lahore 442 (DB) [Rawalpindi Bench Rawalpindi]
Present: Muhammad Akhtar Shabbir and Abdul Shakoor Paracha, JJ.
S.M. ISMAIL--Appellant
versus
CAPITAL DEVELOPMENT AUTHORITY ISLAMABAD & 5 others--Respondents
I.C.A. No. 161 of 2004, heard on 28.6.2005.
(i) Constitution of Pakistan, 1973--
----Art. 199--Maintainability of--Respondent proceeded against appellant and dispossessed him from the site in dispute in violation of mandatory provisions of requiring prior notice--Held: Writ petition before High Court is competent. [P. 449] E
(ii) Constitution of Pakistan, 1973--
----Art. 199--Jurisdiction--Public functionaries deriving authority from or under law, are obliged to act justly, fairly, equitably, reasonably, without any element of discrimination and squarely within parameters of law, as applicable in a given situation--Held : Deviations, if of substance, can be corrected through appropriate orders under Art. 199 of Constitution. [P. 451] H
(iii) Constitution of Pakistan, 1973--
----Art. 199--Islamabad Rent Restriction Ordinance, (IV of 2001), Ss. 2(J)(i) & 17--Intra Court appeal--Capital Development Authority leased out plots to C.D.A. Staff Welfare Organization for setting Petrol Pump for thirty years in first instance and renewable for two subsequent terms of thirty years each--Staff Welfare Organization leased one plot to appellant for thirty years on 11.10.1973--Installation of petrol pump and C.N.G. Station by appellant--Application for renewal by applicant--Extention of lease for five years subject to payment of Rs. one lac per month--Appellant did not decline offer and requested extension for 30 years--Dispossession of appellant and sealing of premises--Constitutional petition of appellant disposed of--Validity--Action of dispossession of appellant by Staff Welfare Committee was without any lawful authority--Appellant has been dispossessed illegally, therefore, he is entitled for restoration of the possession--Rule of equity, good conscious and fairplay necessitates that period of lease of appellant be extended for further thirty years as same benefit has been availed by respondent for itself but they are relevant to extend such concession to appellant--Rejection of offer of appellant for extension of lease for 30 years is not only malicious act but this also shows the arrogant attitude of respondents--Intra Court appeal accepted, impugned order set aside and respondents directed to extent lease for thirty years. [Pp. 448, 451, 452 & 453] C, I, J & K
(iv) Islamabad Rent Restriction Ordinance, 2001 (IV of 2001)--
----Ss. 2 (j)(i) & 17--Dispossessed after expiry of lease period--Relationship of land lord and tenant between the parties and Rent Controller at Islamabad has jurisdiction--Contention of--It was a lease agreement originally executed between the parties and relationship between them is a lessor and lesse--Held: Contention is misconceived and cannot be accepted--Since it was a tenancy and did not cover under Islamabad Rent Restriction Ordinance, 2001. [P. 449] D
(v) Jurisdiction--
----Exercise of--Routine contractual disputes between private and public functionaries are not open to scrutiny under Constitutional jurisdiction--Breaches of such contracts which do not entail inquiry into or examination of minute or controversial questions of fact, if committed by Government, semi-Government or local Authorities or alike controversies if involving derelictions of obligation, flowing from a statute, rules or instructions can adequately be addressed to for relief under Constitutional jurisdiction. [P. 450] F
(vi) Obiter dicta--
----Contract carrying elements of public interest, concluded by functionaries of the State, has to be just, fair, transparent, reasonable and free of any taint of malafidies, and such aspects remaining open for judicial review. [Pp. 450 & 451] G
(vii) Possession--
----Status of--After expiration of the term fixed, lessee continuing in possession, will in absence of assent by the lessor or his representative in interest, only be a tenant by sufference--He can be sued in ejectment any time without any previous notice or demand of possession. [P. 448] B
AIR 1919 Oudh 124; AIR 1929 Pat. 494; AIR 1919 Patna 254; AIR 1981 Raj. 206; AIR 1927 Bombay 192; AIR 1940 Lah. 410.
(viii) Transfer of Property Act, 1882 (IV of 1882)--
----Ss. 106 & 116--Expiry of lease period of appellant--Continuing his possession over the site in dispute--Status of holding over possession falls within ambit of Section 116--Held: Provisions of Transfer of Property Act are not applicable to Islamabad Capital Territory, principle of Ss. 106 & 116 can be invoked as these provisions are not to be regarded being opposed by principle of equity and good conscious. [P. 448] A
1988 SCMR 2268.
Mr. Mujeeb-ur-Rehman Kiani, Advocate for Appellant.
Malik Muhammad Nawaz & Mrs. Misbah Sharif, Advocates for Respondents.
Date of hearing : 28.6.2005.
Judgment
Muhammad Akhtar Shabbir, J.--This Intra Court Appeal arises out of the judgment dated 30.6.2004 passed by learned Single Judge of this Court in Chamber in a Writ Petition No. 346/2004 vide which, the learned Judge referred the case of the appellant to the Staff Welfare Committee of the C.D.A. to decide the fate of the lease of the appellant afresh.
Facts leading to the filing of the present I.C.A. are to the effect that the appellant entered into a lease agreement in respect of a plot measuring 90 x 150 feet, Embassy Road, G-6/4, Islamabad. The lease agreement had been reduced into writing and the period of lease agreed between the parties was 30 years w.e.f. 1.1.1973. That vide letter dated 15.1.2002, the C.D.A. (S.W.A.) had agreed to renew the lease period of the site Petrol-pump for a further period of 5 years subject to payment of Rs. 1,00,000/- per month with immediate effect without waiting for expiry of current lease agreement and sought the consent of the appellant. The appellant was also required to hand over the possession of the site in question forthwith. The plot/site in dispute had been reserved for installation of a patrol-pump after the lease agreement. The appellant installed a patrol-pump at his own cost and thereafter installed a C.N.G. Filling Station with the approval of the respondents. That in response to the offer of the respondents, the appellant through letter dated 21.1.2002 consented to the extension of the lease agreement but nor for a period of 5 years as per term of 30 years with an increase of 15 times in the initial rent i.e. Rs. 1,000/- per month. The offer of the appellant had not been responded to by the C.D.A./respondent. However, vide letter dated 27.12.2002, the vacation of the site was demanded by the C.D.A. from the appellant till 31.12.2003.
The appellant feeling aggrieved of this letter had instituted a civil suit for perpetual injunction seeking protection of his possession on the site in the Court of Civil Judge, Islamabad. The respondent entered appearance in response to the process issued by the Civil Judge and made a statement in the trial Court to the effect that the appellant shall not be dispossessed except in due process of law. On undertaking of the learned counsel for the respondent, the suit was accordingly disposed of.
The appellant had also filed an application under Section 29(c) read with other provisions of Islamabad Rent Restriction Ordinance, 2001 for the determination of fair rent of the site in question before the learned Rent Controller, Islamabad on 20.1.2003. The respondents entered appearance filed written reply to the application of the petitioner and the learned Rent Controller vide his order dated 27.3.2003 fixed Rs. 20,000/- as tentative rent of the site in question and settled issue.
That vide letter dated 10.4.2003 issued by the respondents, the appellant had been intimated that a meeting was scheduled to be held on 12.4.2003 to discuss the matter of renewal of leases of the Petrol-pumps including the Petrol-pump of the appellant. In response thereto, the appellant gave consent to attend the meeting. On 7.2.2004, a notice was again issued by the Respondent No. 2 requiring the appellant to vacate the premises within 24 hours otherwise dispossession of the appellant from the site in question was threatened forcefully. The appellant sent reply to the said notice but through an illegal and arbitrary process on 8.2.2004, the respondents forcefully dispossessed the appellant from the site in question and sealed the premises including assets valuing of Rs. 30 million. Feeling aggrieved, the appellant instituted Writ Petition No. 346 of 2004 in the Lahore High Court, Rawalpindi Bench, Rawalpindi and the Hon'ble Judge in Chamber vide order/observation dated 30.6.2004 disposed of the writ petition with the direction contained in Para Nos. 42 to 44 of the judgment.
The learned counsel for the appellant contended that the appellant was initially granted lease of the plot by the respondent for the terms of 30 years w.e.f. 1.1.1973. The said plot was leased out to the appellant for installation of petrol-pump. The appellant installed Petrol-pumps well as the C.N.G. Filling Station at his own expenses and remained in possession till the time, but he has been forcefully dispossessed by the respondents. Further contended that the appellant in view of provisions of Section 2 (J)(i) of the Islamabad Rent Restriction Ordinance was still a tenant and was not liable to be evicted from the site premises in his possession except in due process of law which has been prescribed in Section 17(1) of the said Ordinance and that the legal status of the appellant was that of a tenant with regard to site in dispute. Further contended the appellant had been dispossessed in violation of existing law. Further contended that despite the statement made by the counsel for the respondent before the Civil Judge, the appellant was forcefully dispossessed from the site in dispute and the statement given by the learned counsel for the C.D.A was binding upon it. The act of respondents dispossessing the appellant was illegal and without lawful authority. Further contended that the controversy for determination of the rent of the disputed site was subjudice before the Rent Controller Islamabad, who has directed the appellant to deposit the tentative rent of Rs. 20,000/- per month. Further contended that the Transfer of Property Act is not applicable to the Islamabad Territory. And there was only one legal remedy available to the appellant before the Rent Controller. Further that the contract of lease was executed inter se between the appellant and the Staff Welfare Committee. Further contended that the relationship between the appellant and respondent was that of tenant and landlord which is governed under the Islamabad Rent Restriction Ordinance and the remedy against his dispossession though a Constitutional petition in the High Court was competent. In this context, he has placed reliance on the case of Abdul Haq and 2 others vs. The Resident Magistrate, UCH Sharif, Tehsil Ahmadpur East, Bahawalpur (P.L.D. 2000 Lahore 101). Further contended that the High Court is competent to restore the illegal possession of the appellant through a writ jurisdiction. In this context, he has placed reliance on the cases of Sikandar and 2 others vs. Muhammad Ayub and 5 others (P.L.D. 1991 S.C. 1041) and Muhammad Aslam vs. Station House Officer and others (1993 M.L.D. 152). Learned counsel further contended that the action of the respondents of forceful dispossess of the appellant is illegal, without lawful authority, based upon mala-fide and liable to be set-aside.
On the other hand, learned counsel for respondents Malik Muhammad Nawaz & Mrs. Misbah Gulnar Sharif, Advocates vehemently opposed the arguments of the learned counsel for the petitioner contending that after the expiry of period of 30 years of lease of the appellant, an offer was made to him by respondents for extension of further time for five years for demanding Rs. 1,00,000/- as lease money per month. The said offer had not been accepted by the appellant, who has claimed the extension of lease for 30 years on the basis of Rs. 1,000/-, the original consideration of lease. Further contended that the matter was put up before the C.D.A. authorities and the offer made by the appellant was declined by the Authorities. Further contended that the appellant neither deposited the rent nor any further agreement of lease has been executed, therefore, after expiry of lease period, he was liable to be ejected forthwith. Further contended that required notice was issued to the appellant either to accept the offer of the respondent or vacate the premises. Further contended that the appellant is a lessee under the lessor/respondent and not a tenant and no relationship of landlord and tenant exist between the parties. Further contended that the case of the appellant is not covered within the provisions of Section 2(J)(i) of the Islamabad Rent Restriction Ordinance. Further contended that the notification was required to be issued in accordance with law declaring the area to be covered by the Islamabad Rent Restriction Ordinance, which had not been issued at the time of institution of the rent petition of the appellant. Further contended that lease period could be extended with the mutual consent of the parties. Further contended that under the direction of this Court, the Staff Welfare Committee considered the case of the appellant and declined to accept his offer for extension of his lease at the rate of Rs. 1,000/- per month for further 30 years. Learned counsel further contended that the provision of Section 106 of T.P. Act can be followed as principles of justice, equity and good conscience. Under this provision notice was issued to the appellant and compliance of law has been made. In this context, he has placed reliance to the case of Barkat Ullah Khan vs. Abdul Hamid (1981 S.C.M.R. 1200).
We have heard the arguments of the learned counsel for the parties and perused the record.
It is an admitted position that in the year 1973, two plots measuring 90 x 150 fee (1500 sq. yards) located at Embassy Road, Sector G-6/4, Islamabad, were allotted to the CDA Staff Welfare Organization vide letter dated 9.10.1973 for setting up Petrol-pump. The period of lease was thirty years in the first instance, which was renewable for two subsequent terms of thirty, years each on such terms and conditions as may be prescribed by the Authority. The annual ground rent was liable to be enhanced by 20% per month on expiry of first term of thirty years and then 40% for the next term. The Staff Welfare Organization further leased out one of the plots to the appellant for a period of thirty years at the rate of Rs. 1,000/- as rent per month for fifteen years and after fifteen years increase in the rent would be subject to the ceiling of 20% per month. Consequently, a lease agreement dated 11.10.1973 was executed between the appellant and the Staff Welfare Committee.
After obtaining the lease, the appellant installed a Petrol-pump at the site and continued payment of rent to the respondent Staff Welfare Committee as per terms and conditions of the agreement. Before the expiry of the lease period, the appellant applied to the respondent for renewal of rent agreement of the Petrol-pump and in response to the letter dated 18.5.2001, the respondent through letter dated 15.1.2002 informed the appellant for extension of lease period only for five years subject to payment of Rupees one lac per month as rent. The appellant had applied to the respondent before the expiry of the term of lease period i.e. 31.12.2002 meaning thereby that the appellant proposed to get extended further period of lease. The appellant did not decline the offer of the respondent Staff Welfare Committee and requested for extension of the period of lease for further thirty years. A meeting of the Staff Welfare Committee had been convened to discuss the matter regarding renewal of the rental agreement of the Petrol-pump site. In the meeting, it was decided that the negotiation with the lessees for new lease at the rate of Rs. 1,00,000/- per month may be carried out by the Chairman (SWC) and in the light of those negotiations Secretary (SWC) may bring a revised summary in the Board for consideration. In case no settlement is reached then the lease may be cancelled.
In the present case, now the question to be determined between the parties was the period of lease and the amount of rent/lease money per month. There was correspondence between the parties and no specific denial or refusal by the appellant is established on the record for extension of the lease period. After the expiry of the lease period, the appellant continuing his possession over the site in dispute and his status of holding over possession clearly falls within the ambit of Section 116 of the Transfer of Property Act. Though the provisions of Transfer of Property Act are not applicable to Islamabad Capital Territory, but the principle of Sections 106 and 116 can be invoked as the provisions of Section 106 are not to be regarded being opposed by the principle of equity and good conscious. This proposition was discussed by the Hon'ble Judges in the case Messrs Airport Support Services vs. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268). After the expiration of the term fixed, the lessee continuing in possession, will, in the absence of an assent by the lessor or his representative in interest, only be a tenant by sufferance. He can be sued in ejectment at any time without any previous notice or demand of possession, as laid down in AIR 1919 Oudh 124, Pratap Udai Nath Sahi Deo and another vs. Jagannath Mahto and others (AIR 1929 Pat. 444), E.W.C. Moore and another vs. Makhan Singh (AIR 1919 Patna 254), AIR 1981 Raj 206, Maganlal Dulabhdas vs. Bhudar Purshottam and others (AIR 1927 Bombay 192), and Banwari Lal vs. Mt. Hussaini and another (AIR 1940 Lahore 410).
The plot has been allotted on lease for about ninety years to the respondent/Staff Welfare Committee, which is an Organization of the employees of CDA, therefore, they being a private party could not proceed against the appellant except in due process of law. The Staff Welfare Committee has no authority or power and their action of dispossession of the appellant from the plot in dispute was without any lawful authority. After allotment of plot on the basis of lease agreement, the CDA Authorities, during the period of lease, have become functus officio and they have also no power to authority to act against the appellant without due process of law. Thus, the action of the respondents, either by the CDA or by the Staff Welfare Committee regarding dispossession of the appellant from the site in dispute was illegal, without lawful authority and based upon mala fide.
The appellant has though requested for extension of the lease period for further thirty years and also wanted that the rent may be fixed at the rate of Rs. 1,000/- per month for fifteen years and thereafter 20% increase for further fifteen years. But the request of the appellant for extension of lease period for thirty years at the rate of Rs. 1000/- per month was declined and vide notice dated 7.2.2004, the respondents issued a notice to the appellant to hand over the possession of the site within 24-hours.
In all the above said circumstances, the appellant was only liable to be dispossessed through a suit for possession and not illegally or forcibly, as has been done by the respondents in the case of the appellant.
In the instant case, before expiry of contract of lease, the appellant has requested the Staff Welfare Committee to extend the lease period and this offer was accepted by the Staff Welfare Committee and offered the extension for a period of further five years at the rate of Rs. 1,00,000/- per month as rent but the appellant did not decline this offer. The appellant only requested for extension of lease for further thirty years at the same rate.
After obtaining the lease of the site in dispute, the appellant has installed a Petrol-pump and CNG Station from their own expenses and spent a colossal amount of rupees 3-4 Crors, as such the offer by the respondents regarding extension of lease only for five years was not based upon bona fide; rather it was with malicious intention. Since the appellant was under the impression that the Staff Welfare Committee/respondent is the lessee of the plots for ninety years, therefore, the respondent will also treat the appellant with the same terms and conditions and his lease would be extended for further thirty years.
Admitted, that it was a lease agreement originally executed between the parties and the relationship between them is a lessor and lessee. As to the argument of the learned counsel for the appellant that there was a relationship of landlord and tenant between the parties and the learned Rented Controller at Islamabad has the jurisdiction to determine the fair rent, as Rent Restriction Ordinance has been enforced in Islamabad Capital Territory being misconceived cannot be accepted. Since it was not a tenancy and did not cover under Islamabad Rent Restriction Ordinance, certainly it was a lease agreement and the argument of the learned counsel for the respondent that to constitute the agreement, necessary requirement would be unconditional and acceptance thereof by the competent person/authority. In the present case, the offer was not categorically refused or declined by the appellant, therefore, a right has accrued to the appellant to approach this Court for enforcement of legal right.
In the present case, the Staff Welfare Committee/respondent under the shed of the CDA has proceeded against the appellant and dispossessed him from the site in dispute and in such circumstances if in violation of the mandatory provisions of the requiring prior notice the appellant has been dispossessed, the writ petition before the High Court is competent, as laid down in the case, referred to above, wherein the rule is founded on the premises that the public functionaries, deriving authority from or under law, are obligated to act justly fairly, equitably, reasonably, without any element of discrimination and squarely within the parameters of law, and deviations, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution. In another case Suleiman Khan & Co. vs. Pakistan Railways through General Manager, Railways Headquarters & 2 others (2003 SCL 331) it has been observed that the fee of leased property was enhanced and the High Court set aside the order of the Authority and remanded the case for decision afresh in accordance with law.
The learned Single Judge of this Court while disposing of the Writ Petition No. 346 of 2004 filed by the appellant has observed that the question with respect to the renewal of lease has now independently be decided by the Staff Welfare Committee as the offer of the respondents with regard to the rate of rent of rupees one lac has been admitted by the appellant, therefore, their one condition has been accepted. The respondents have already offered the extension of lease for a period of five years, which is not declined by the appellant, but his request is for extension of lease period for thirty years, as he has spent a huge amount, therefore, keeping in view the expenses incurred by the appellant on the installation of Petrol-pump and CNG Station at the site in dispute, he is fully entitled for extension of further longer period of 30-years.
Learned counsel for the appellant has submitted that the appellant has accepted the lease when nobody was willing to install a Petrol-pump on the said place because at that time, Islamabad City was not thickly populated and its roads were not so busy and the rush of traffic was not like the present one. However, after the arguments of the case, while dictating the judgment, learned counsel for the appellant has entered appearance in our Chamber and made a statement that his client/appellant is willing to accept the offer of the respondents for extension of the lease for a consideration/rent of Rupees one lac per month. In this respect, one condition of the respondent has been accepted by the appellant and his other demand is that the lease period be extended for further fifteen or thirty years. The appellant is a licensee of the Oil Company who supplies petrol to the appellant's Petrol Pump. The appellant has also installed CNG Station. As it is the requirement of the Oil Company marketing for long term lease rights at least for fifteen years, extendable for further fifteen years' term, the renewal period should also not be less than thirty years.
So far as the objection of the learned counsel for the respondents that the writ petition is not maintainable, suffice it to say that routine contractual disputes between the private parties and public functionaries are not open to scrutiny under the Constitutional jurisdiction, breaches of such contracts, which do not entail inquiry into or examination of minute or controversial questions of fact, if committed by the Government, semi-Government or Local Authorities or alike controversies if involving derelictions of obligations, flowing from a statute, rules or instructions can adequately be addressed to for relief under the Constitutional jurisdiction. Further a contract, carrying elements of public interest, concluded by functionaries of the State, has to be just, fair, transparent, reasonable and free of any taint of mala fides, all such aspects remaining open for judicial review. The rule is founded on the premises that public functionaries, deriving authority from or under law, are obligated to act justly, fairly equitably, deriving authority from or under law, are obligated to act justly, fairly equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. Deviations, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution.
the appellant has been dispossessed by the C.D.A. authority which is a statutory body and the dispossession has been made by them without performing requirement of law and it has been held in the case Messrs Airport Support Services Vs. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) that the question before the High Court in Constitutional petition under Article 199 of the Constitution was not one of enforcement of contractual obligations but of violation of mandatory provisions of the requiring prior notice as envisaged in Section 3, Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965, writ petition was maintainable.
In another case, M/s. Wak Orient Power & Light Limited Gulberg-III Lahore vs. Govt. of Pakistan, Ministry of water and Power through its Secretary Islamabad & 2 others (PLJ 1998 Lahore 665 (FB) it has been observed by the Full Bench of the High Court that trend of authorities has now changed and remedy of writ is permitted to be resorted to in cases involving contract between private person and state/statutory functionary as it is considered to be more efficacious and speedy remedy as compared to civil suit or arbitration proceedings. The lessees/tenants have enforceable rights against their landlords/lessors to protect their tenancy rights through Courts and it is settled proposition that if a person is dispossessed forcibly, he has a legal right for restoration of his possession on the basis of the protective legislation vis-a-vis by filing a suit for possession under Section 9 of the Specific Relief Act. This argument is strengthened by the dictum laid down in Sikandar and 2 others vs. Muhammad Ayub and 5 others (PLD 1991 Supreme Court 1041) and Muhammad Aslam vs. Station House Officer and others (1993 MLD 152) wherein the writ petitioner had challenged the action of the police functionaries whose duty is to protect the citizens against all kinds of excesses from any corner, but instead of performing their duty strictly within the four corners of law, the guardians of law themselves sided with the law-breakers and acting in a most indecent haste had deprived the petitioner of his possession of the Petrol-pump in spite of existence of status quo order issued by the Civil Court. The police functionaries were overzealous in completing the illegal mission. The whole action of police functionaries in depriving the petitioner of his possession of filling station was consequently declared as illegal having got no sanction of law and the petitioner was directed to be put back in possession forthwith by the High Court in exercise of its Constitutional jurisdiction. The same is the case of the present petitioner, who has been dispossessed illegally and forcibly by the CDA Staff Welfare Association without due process of law, therefore, the appellant is entitled for restoration of the possession.
So far as the consideration/price of the lease per month at the rate of Rs. 1,00,000/- is concerned, learned counsel for the appellant has made a statement that the appellant has authorized him to accept the offer of the respondents in respect of the lease at the rate Rs. 1,00,000/- per month, meaning thereby that the condition imposed by the respondents offering the appellant to accept the extension of lease for further period at the rate of rupees one lac having been accepted.
Now the question remains in respect of the period of lease. Admittedly, the respondents have themselves offered the extension for a period of five years and the appellant wanted extension in period for thirty years. The appellant has spent colossal amount at the site in dispute for installation of Petrol-pump and the CNG Station and if the lease period is not extended, the appellant's family would be financially ruined and doomed. In such circumstances, we are of the view that the rule of equity, good conscious and fair play necessitate that the period of lease of the appellant be extended for further thirty years as the same benefit has been availed by the respondent/Staff Welfare Committee for itself but they are reluctant to extend this concession to the appellant. The Staff Welfare Organization having it upper hand as lessor should consider the difficulties and hardship of the other party/appellant.
the offer letter issued by the Staff Welfare Organization for extension of the lease of the appellant for further five years has not been declined by him rather a request was made for extension of lease for a longer period. The offer for extension of lease period is impliedly accepted by the appellant and his learned counsel while entering appearance in our Chamber has made a statement whereby he accepted the payment of lease consideration of Rs. 1,00,000/- (Rupees one lac) per month. It means that the appellant is ready and willing to fulfill his obligation but so far as the decision of the Staff Welfare Committee rejecting the offer of the appellant for extension of lease for further period of thirty years is concerned, it is not only their malicious act but this also shows the arrogant attitude of the respondents. When the leased plot has been allotted by the C.D.A. to the Staff Welfare Committee for ninety years by two subsequent terms of thirty years each why the respondent/CDA (SWA) is not giving the same benefit to the appellant who has also accepted its demand regarding the rate of rent of Rs. 1,00,000/- per month.
In view of the above discussion and keeping in view the principle of equity, good conscious as well as fairness and also in order to save the appellant's family from financial ruinous, we are constrained to accept this Intra Court Appeal and the impugned order passed by the learned Single Judge in Chamber is set aside and the respondents are directed to extend the lease in favour of the appellant for further period of thirty years in two consecutive terms of fifteen years each at the rate of rupees on lac per month with increase of 20% rent after fifteen years. There is no order as to costs.
(M.A.R.) Appeal accepted.
PLJ 2006 Lahore 453
Present: Muhammad Muzammal Khan, J.
SAYED SAFDAR ALI RAZVI--Petitioner
versus
STATION HOUSE OFFICER; POLICE STATION CIVIL LINES, LAHORE and 2 others--Respondents
W.P. No. 11087 of 2004, decided on 29.9.2005.
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), S 489-F--Dishonoured cheque--Registration of case--Quashment of FIR--Petitioner can not be punished for his misdeeds, if any, of year 1996 in 2004 after lapse of 8 years at time of issuance of cheques, act of fake issuance of cheques was not punishable by law and inspite of fact, tentatively complainant acted with malice as having sold their lands to third parties got criminal cases registered in order to get out of their binding obligations under agreements of sale with petitioner and to keep pressure on him through putting criminal law in motion, whereas no offence was committed and prerequisites of S. 154 Cr.P.C. were not made out--Petitioner did not commit any cognizable offence in any of few cases, which were got registered out of civil dispute in place of report to Civil Court--Held: No statute shall be construed to have retrospective operation unless such construction appeared very clearly or through necessary implication from act itself--Petitions accepted. [Pp. 458 & 459] A, B, C & D
Ch. Muhammad Bashir, Advocate for Petitioner.
Sheikh Abdus Sattar and M. Zahoor Nasir, Advocates for Respondents.
Date of hearing : 29.9.2005.
Order
This judgment proposes to decide four Constitutional petitions, one in hand and three others i.e. W.Ps. 11088, 11089 and 11090 of 2004, as all these involve similar questions of law/facts, require interpretation of same provisions of law, are directed against the same set of respondents except Respondent No. 2 in each case who are complainants of four different criminal cases registered on their complaints which are sought to be quashed through these petitions.
Succinctly facts as deciphered from Writ Petition No. 1188/Q of 2004 are that Muhammad Salim Bhatti/Respondent No. 2 therein, got a criminal case registered vide FIR No. 372 dated 17.6.2004 under Sections 406, 420, 468, 471 PPC with Police Station Satto Katla, Lahore, against the petitioner complaining that the petitioner entered into an agreement to sell of land measuring 9 kanals and 11 marlas on 23.5.2003 for a consideration of Rs. 55,00,000/- and received a sum of Rs. 15,00,000/- as earnest money through pay order drawn on Bank Alfalah Lahore but despite repeated requests, he failed to get transaction completed, as per agreement. According to the complainant, it revealed to him that owner of the land had already cancelled her power of attorney in favour of petitioner and that petitioner had no right to enter into the agreement with regard to land measuring 9 kanals 11 Marlas that did not vest in him. Quashment was prayed on the grounds that the dispute, if any, was of civil nature and no cognizable offence was committed. The petitioner claimed that he had been ready and willing to perform his part of contract but the complainant failed to discharge his obligations under the agreement within the time prescribed. The petitioner asserted that the owner of the land Mst. Shahida Iqbal had entered into an agreement to sell of 5 kanals of land besides executing power of attorney in his favour and he owned rest of the land measuring 4 kanals 11 marlas vide Mutation No. 22566 dated 24.12.1985 revived on 25.5.2004 on the basis of which agreement to sell in question was correctly executed by the petitioner. Complainant was said to have filed a suit for specific performance of the agreement dated 23.5.2003 in his favour which was reported to be pending before the Civil Court at Lahore, pending which complainant and Mst. Shahida Iqbal who had executed irrevocable agreement and power of attorney in favour of the petitioner, were said to have colluded and a sale-deed of the same 5 kanals was executed by Mst. Shahida in favour of complainant/Respondent No. 2, despite contrary direction by the Civil Court, cognizance of the petitioner's suit against Mst. Shahida Iqbal and, thus, registration of criminal case was asserted to be in violation of Section 154 Cr.P.C. and in abuse of process of law.
Facts of Writ Petition No. 11089-Q of 2004 are that the petitioner issued three cheques in the year 1996 in favour of Muhammad Iqbal Sindhu, the complainant (Respondent No. 2) for the sums of Rs. 1,00,000/- Rs. 3,00,000/- and Rs. 50,000/- respectively, which were alleged to have been dishonoured, on presentation to the Drawee Bank, leading to Registration of criminal case vide FIR No. 501 dated 22.6.2004 under Section 489-F with Police Station Civil Lines, Lahore against the petitioner and it was prayed to be quashed on the ground that the complainant entered into an irrevocable agreement to sell dated 8.5.1996 of land measuring 2 kanals and 17 marlas for consideration of Rs. 5,00,000/- and received a sum of Rs. 50,000/- as earnest money and for the balance sale price of Rs. 4,50,000/- the cheques in question were given as security which were to be encashed at the time of completion of transaction under clause (vii) of the agreement between the parties. It was asserted that the petitioner had been ready and willing to perform his part of contract but complainant could not discharge his obligations within the stipulated time, thus, the dispute if any, was of civil nature that is why complainant withdrew his suit filed by him for recovery of the cheques amounts filed under Order XXXVII, Rule 1 CPC . Registration of case was said to be out of malice, in counter blast to the case registered against the wife of the complainant through FIR. No. 386 dated 14.6.2004 in violation of provisions of Section 154 Cr.P.C. and in abuse of process of law.
Assertions of the petitioner in Writ Petition No. 11090-Q of 2004 were that the petitioner issued three cheques in the year 1996 in favour of Muhammad Jawad Respondent No. 2 therein, for the sums of Rs. 2,00,000/-, Rs. 50,000/- and Rs. 2,00,000/- respectively, which were dishonoured on presentation to the Drawee Bank, leading to registration of criminal case vide FIR No. 502/2004 under Section 489-F PPC. Petitioner claimed to have issued these cheques as security under the agreement to sell between him and the complainant of land measuring 2 Kanals and 4 Marlas for a sale consideration of Rs. 5,00,000/- out of which an amount of Rs. 1,00,000/- was paid as earnest money to the complainant and for the balance sale price cheques in question were issued as security for encashment at the time of completion of transaction under clause (vii) of the agreement between them. It was asserted that since the petitioner remained ready/willing to perform his part of contract within the stipulated time but the complainant failed to discharge his obligations and since, the transaction was not completed, the cheques in question were not to be presented for encashment. The case was said to have been registered in counter blast to the case got registered against mother of the complainant and was claimed to be out of malice, in violation of provisions of Section 154 Cr.P.C. and in misuse of process of law with the claim that the dispute if any between the parties was of civil nature and that, these cheques having been issued in the year 1996 when Section 489-F, PPC was not on the statute book and it being not retrospective in affect, the petitioner could not have been charged, thereunder.
All the four petitions were opposed by the learned counsel appearing on behalf of the complainant in each case on the grounds that prima facie the petitioner committed cognizable offence and exposed himself to penal consequence, as per law and this Court should not embark upon inquiry about the factual controversy between the parties, in constitutional jurisdiction. It was further argued that the petitioner misrepresented the complainant regarding ownership of the land as Mst. Shahida Iqbal the owner of the land had given power of attorney to the petitioner of only 5 kanals whereas the petitioner entered into an agreement to sell of land measuring 9 kanals and 11 marlas and thus he had no authority to enter into an agreement in question. It was further emphasized that the petitioner issued fake cheques which were dishonoured on presentation, hence, the offence under Section 489-F PPC was apparently committed by the petitioner besides execution of unauthorized/fake agreement hence, the prayer made by him may not be granted. The learned counsel for the complainants relied on the judgments in case of A Habib Ahmad versus M.K.G. Scott Christian and 5 others (PLD 1992 SC 353), Ahmad Saeed Versus the State and another (1996 SCMR 186) and (PLJ 2001 Karachi 1198) in support of opposition of the Constitutional petitions.
I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended with all the four petitions. Undeniably dispute in all the four petitions emerged out of sale transaction between the parties regarding different parcels of land situated adjacent to Nawan Pind, Mauza Niaz Baig Tehsil and District Lahore. Complainant of the case in hand namely Mst. Shahida Iqbal had agreed to sell her 5 kanals of land to petitioner and Muhammad Iqbal Sindhoo complainant of FIR No. 501/2004 under Section 489-F PPC is her husband who agreed to sell his land measuring 2 kanals 7 marlas whereas Muhammad Jawad, complainant of FIR No. 502/2004 under Section 489-F PPC is son of earlier mentioned two complainants and agreed to sell the petitioner land measuring 2 kanals and 4 marlas. Agreements by all those three were executed in the year 1996-97 with verbatim same language/terms and were inscribed/signed by them after receipt of earnest money as per details, given in factual part of this judgment. According to these agreements, the remaining agreed prices fixed, were secured through crossed cheques, detailed in para (iv) of each agreement and receipts of those were acknowledged in para (v), thereof. Parties deferred execution of sale-deeds on account of Ban imposed by Lahore Development Authority, till the parties get N.O.C. from the Authority, which was to be conveyed/informed by the complainants to the petitioner. Para (VII) of the agreement was to the following effect:--
"(vii) That for the time being Lahore development/Local authority has imposed a ban on the registration of the sale-deeds. Both the parties will also get "No Objection Certificate" collectively for the alienation of the said piece of land in favour of Party No. 2. As and when the ban is lifted and no objection certificate is obtained from the LDA/Local authority. The Party No. 1 will inform the Party No. 2 through a registered AD letter. The vendor/Party No. 2 after receiving a formal information would execute the sale-deed within three months from the date of the receipt of the above NOC and lifting of the ban."
Cheques issued in the year 1996 were presented to the Bank in the year 2004 which in itself shows that those were to be encashed on completion of transaction of sale in term of para (VII) of agreement above reproduced. All these three cases were got simultaneously registered on 22.6.2004 and till that time neither the required NOC was obtained nor transactions matured through any sale-deed. Question which hinges for determination is whether petitioner's cheques could have been presented without discharging corresponding obligations and whether on refusal of encashment of those, it would attract mischief of Section 489-F PPC which was introduced through Ordinance LXXXV dated 25.10.2002, regarding the cheques issued in 1996/97.
Language of Section 489-F, PPC is un-ambiguous which lays that when any person dishonestly issues a cheque towards repayment of a loan or fulfillment of some obligation but the same is dishonoured, the person issuing such fake cheque will be liable to the prescribed imprisonment. In the instant case, the cheques were given for payment of balance sale price, which was to become due on getting of NOCs from the LDA and on maturity of sale transactions but none of these eventualities, took place till the registration of cases. By the time cheques were presented, complainants had already transferred their lands through registered sale-deeds though in violation of their earlier irrevocable agreements and had no lawful right to get the balance sale price from the petitioner by presenting him cheques to the drawee bank. This shows that the petitioner did not issue the cheques with dishonest intention and at the time of presentation of those he was also not liable to fulfil any of his obligations under the agreements of sale by the complainants, as he was liable to pay the balance price only after issuance of NOCs by LDA and notice by the complainant through registered cover but those were never issued.
Law regarding retrospectively of penal provisions is firmly settled by this time by holding that these are always prospective. Article 12 of the Constitution of this country warranted the citizens, protection against retrospective punishment by providing that no law shall authorize the punishment of a person, for an act or omission, that was not punishable by law at the time of the act or omission. Basic judgment on the subject was given by the Honourable Supreme Court of Pakistan in the case of Nabi Ahmad versus Home Secretary (PLD 1969 SC 599) laying conditions of coming under prohibitions of Fundamental Rights as to retrospective laws and the salient condition is regarding punitive laws. In another case of Income Tax Officer Versus Suleman Jiwa (PLD 1970 SC 80) it was held that no statute shall be construed to have a retrospective operation unless such a construction appeared very clearly or through necessary implication from the Act, itself. Alike view was taken in the case of Abdur Rehman Versus the State (1978 SCMR 292) by holding that sentence of transportation of life was 20 years at the time of commission of offence and life imprisonment, being 25 years, was subsequently substituted, could not be inflicted. Other judgments relevant to the point are in the cases of Farid Khan versus the State (PLD 1965 (WP) Peshawar 31) Hashim Ali Versus Abdul Karim (PLD 1968 LAhore 188), Mir Ghaus Bakhsh Bizinjo Versus Islamic Republic of Pakistan (PLD 1976 Lahore 517) and Bhai Khan Versus the State (PLD 1992 SC 14). From scan of case law and Article 12 of the Constitution, it is clear that convictions and sentences to be recorded in the criminal jurisdiction under ex-post facto laws, are prohibited. Petitioner can not be punished for his misdeeds, if any of year 1996 in 2004 after lapse of 8 years and that too, at the time of issuance of cheques, act of fake issuance of the those was not punishable by law and inspite of the fact, tentatively complainants acted with malice, as having sold their lands to third parties, got criminal cases registered in order to get out of their binding obligations under the agreements of sale with petitioner and to keep pressure on him through putting criminal law in motion, whereas no offence, as discussed above was committed and prerequisites of Section 154 Cr.P.C. were not made out. Complainants apparently acted with ulterior motives in counter blast to the cases got registered by the petitioner against Mst. Shahida Iqbal who was wife of complainant Muhammad Iqbal Sindhoo and mother of complainant Muhammad Jawad, to usurp big amounts of earnest money received by them and to keep the petitioner away from asserting his rights under the above referred agreements. Complainants attempted to settle civil dispute through criminal proceedings, by misusing the process of law.
Taking case of the fourth petition wherein case was got registered by Muhammad Salim Bhatti who is transferee through registered sale-deed from Mst. Shahida Iqbal. He besides entering into agreement of purchase of land measuring 9 kanals 11 marlas from the petitioner, by-passing him got sale-deed of 5 kanals directly from Mst. Shahida Iqbal. He reported to the police that petitioner was given power of attorney of 5 kanals by Mst. Shahida Iqbal but he out of fraud and misrepresentation entered into an agreement of sale with him for land measuring 9 kanals and 11 Marlas. Petitioner has produced certified copy of Mutation No. 22566 dated 24.12.1985 as revived on 25.5.2004 to show that besides 5 kanals of land, he owned 4 kanals and 11 marlas and in this manner, agreement of land measuring 9 kanals and 11 marlas with Respondent No. 2, complainant of FIR No. 372 dated 17.6.2004 was correct and he did not commit any offence, as charged, because in order to apply offence under Section 420 PPC, a person will be said to have cheated some other person if he knowingly substituted one person for another or misrepresenting that he or any person is a person other than he or such other person really was. As per averment in the FIR, there are no such allegations against the petitioner hence, offence under Section 420 PPC was not made out from the prosecution case. Similarly for charging offence under Section 406 PPC there should have been some dishonest misappropriation from the property entrusted and in absence of any entrustment, mischief of Section 406 will not be attracted. So is the case of offences under Sections 468 and 471 PPC, there should have been some forgery for the purpose of cheating but the complainant of this case never set up any such case against the petitioner that he forged any document in order to misrepresent him, the title of his property. In this manner none of the offences charged through FIR No. 372 of 2004 were applicable/attracted and registration of this case was violative of the provisions of Section 154 Cr.P.C. as no cognizable offence was committed and these provisions were misused to earn ulterior motives.
For the reasons noted above, it is clear that petitioner did not commit any cognizable offence in any of the four cases, which were got registered out of civil dispute, in place of resort to Civil Court. There is no ambiguity that all the four cases were in abuse of process of law and those cannot be allowed to continue in order to secure the ends of justice. All the four petitions, above noted, are consequently accepted and registration of all the four cases, vide FIR No. 372 dated 17.6.2004 Police Station Satoo Katla, District Lahore, FIR No. 500 dated 22.6.2004, Police Station Civil Lines, Lahore, FIR No. 501 dated 22.6.2004 Police Station Civil Lines, Lahore and FIR No. 502 dated 22.6.2004, Police Station Civil Lines, Lahore, are declared to be illegal, void and of no legal effect and by quashing those, writ as prayed in all the four petitions is issued, with no order as to costs.
(A.S.) Petitions accepted
PLJ 2006 Lahore 460
Present: Syed Shabbar Raza Rizvi, J.
Major (R) IJAZ AHMAD BHATTI--Petitioner
versus
STATE and 3 others--Respondents
W.P. No. 3465 of 2005, heard on 14.6.2005.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 489-F--Constitution of Pakistan (1973), Art. 199--Repugnancy to injunctions of Constitution--Quashment of F.I.R. dated 3.9.2004 sought on the ground that S. 489-F whereunder F.I.R. was lodged was not a valid piece of legislation in as much Ordinance comprising S. 489-F of P.P.C. was never placed before National Assembly--Section 489-F P.P.C. contained in Ordinance (LXXXV of 2002), would remain protected by Art. 5(1) of Order 9 of 1999 dated 15.11.1999 and by Constitution (17th Amendment) Act, 2003, which was Gazetted on 31.12.2003--Art. 270-AA was further amended, whereunder proclamation of emergency of 14th October, 1999 and all President's Orders including all other laws made between 12th day of October 1999 and the date on which Art. 270-AA (as amended) comes into force (31.12.2003) made by competent authority were affirmed, adopted and declared to have been validly made notwithstanding contained in Constitution--Even otherwise law should be saved rather than destroyed--Provision of S. 489 P.P.C. and Ordinance (LXXXV of 2002), were thus, declared to be valid and living law. [Pp. 463 & 464] A
KLR 2005 Cr.C. 39 ref.
Mr. Tahir Mehmood Butt, Advocate for Petitioner.
Ch. Khursheed Anwar Bhinder, Addl. A.G. for State
Date of hearing: 14.6.2005.
Judgment
The petitioner has filed this Writ Petition No. 3465/05 for quashment of FIR No. 555/04 dated 3.9.2004, under Sections 489-F and 506 PPC at P.S. Manga Mandi, District Lahore. The petitioner has called in question registration of FIR No. 555/04 mainly on the ground that Section 489-F PPC is not a valid piece of legislation. Another Writ Petition No. 7261/05 is also filed for quashment of FIR No. 60/05 dated 18.1.2005 under Section 489-F PPC registered at P.S. North Cantt., Lahore on the same ground. Both these writ petitions are being decided through this single order as both relate to the same question of law.
According to the learned counsel for the petitioners Section 489-F PPC was inserted in the Pakistan Penal Code by Criminal Law Ordinance-LXXXV of 2002. The said Ordinance was not placed before the National Assembly, therefore, after expiry of four months period, as provided under Article 89 of the Constitution, it ceased to be a law. Therefore, according to them, registration of FIRs under Section 489-F PPC is void ab initio. They have placed reliance on KLR 2005 Cr.C. 39, Mian Hussain Ahmad Hyder vs. SHO and others.
According to the said judgment, the legislative instruments like Ordinances, Orders, etc., were saved under Article 270-AA introduced in the Constitution by the Legal Framework Order of 21.8.2002, but Criminal Law Amendment Ordinance (LXXXV of 2002) was not in existence prior to 21.8.2002. According to his lordship, Criminal Law (Amendment) Ordinance, 2002 was enforced from 25.10.2002 after enforcement of the Legal Framework Order or Article 270-AA, therefore, Criminal Law (Amendment) Ordinance (LXXXV of 2002) or Section 489-F PPC was not saved by the Legal Framework Order. Likewise, the Ordinance by which Section 489-F PPC was inserted needed to be placed before the National Assembly to make the same an act of the parliament or a living law. After General Elections of October, 2002, the National and Provincial Assemblies had come into existence and the Constitution was revived. The said Ordinance was not made an act, therefore, after expiry of four months it ceased to be a valid law. for the purpose of clarity and convenience, the relevant para is reproduced as under:
"After expiry of period of four months, the Criminal Law Amendment Ordinance (LXXXV of 2002) has died its natural death. No further Ordinance in continuation of the said Ordinance has been promulgated enforced by the President. After General Election, October, 2002 of the National and Provincial Assemblies and taking of Oath by the members of Legislature, the Constitution of the country has been revived. All proclamations, President's Orders, Ordinances, Chief Executive's Orders, laws, regulations, enactments, Notifications, rules, orders or policies enforced immediately before the date on which Article 270-AA of the Constitution comes into force, shall continue in force until altered, repealed or amended by the competent authority. The above said Criminal Law Amendment was not enforced before the date on which Article 270-AA was introduced through the Legal Framework Order, thus, it has no Constitutional and legal protection. Learned counsel for the petitioner when confronted with the above legal position of the case, could not respond neither has been able to advance or produce any other Ordinance in continuance of the Criminal Law Amendment Ordinance (LXXXV of 2002)."
The learned Additional Advocate General Punjab submitted that though National Assembly came into existence in November, 2002 and it is also true that the Ordinance No. LXXXV, 2002 was not placed before the National Assembly, however, it was protected under Article 270-AA of the Legal Framework Order.
I have heard the learned counsel anxiously. The learned counsel for the petitioners as well as the learned Additional Advocate General Punjab have missed something to refer to arrive at a right conclusion. It is also respectfully stated that my learned brother, Muhammad Akhtar Shabbir, J. was also not properly assisted.
Sub-section 5(a) of Provisional Constitution Amendment Order, 1999, also known as Order-9 of 1999 gazetted on the 15th of November, 1999 reads, "An Ordinance promulgated by the President or by the Governor of the Province shall not be subject to the limitation as to its duration prescribed in the Constitution." Therefore, till the enforcement of the Legal Framework Order in August, 2002, all Ordinances issued and promulgated by the President and the Governors were protected by the said Order-9 of 1999. In August, 2002 Legal Framework Order came into existence and Article 270-AA gave validation and affirmation to all the Ordinances issued and promulgated either by the President/Chief Executive of Pakistan or the respective Governors of the four provinces. After the Election 2002, National Assembly, Senate and Provincial Assemblies were elected. The Legal Framework Order was enforced on 21.8.2002 whereby many amendments were made in the Constitution of 1973. But the Constitution itself was not immediately restored. There is a general impression that with the enforcement of the Legal Framework Order, 2002, the Constitution was also revived from the same date. This elusion has misled to the learned counsel for the petitioners, that is why, they believe that Ordinance LXXXV, 2002 is subject to the provisions of Article 89 or in other words that the Ordinance should have been placed before the Parliament to make it an act. Had Article 89 or its provisions been operative on the 25th of October, 2002, the day Ordinance LXXXV was introduced, the arguments of the learned counsel for the petitioners would have correct. The judgment, relied upon by the learned counsel for the petitioners, is also based on interpretation of provisions of Article 89 of the Constitution. As the learned Court also assumed revival of Article 89 from 21.8.2002, the day, Legal Framework Order came into force. His Lordship held as under:
"This Ordinance was enforced by the President of Pakistan in exercise of the powers conferred on him under Article 89 of the Constitution of Pakistan, which envisaged that the President may, except when the National Assembly is in session, if satisfied that the circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may required. Sub-clause (a) of sub-article (2) of Article 89 further provides that (i) before the National Assembly if it (contain provisions dealing with all or any of matters specified in clause (2) of Article 73), and shall stand repealed at the expiration of our months from the promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution (ii) ..... The Ordinance will become Act if it has been laid before the National Assembly through a Bill and if passed by the National Assembly and signed by the President."
"The provisions of the Constitution, as amended by the Order and by such other Orders as may be promulgated hereinafter, shall stand revived on such day as the Chief executive may, by Notification in the official Gazette, appoint; and different days may be so appointed in respect of different provisions."
In pursuance of the provisions of Article 4 of the Legal Framework Order, 2002, another instrument known as Legal Framework Order 2002 (date of coming into force of provisions of Constitution) Gazette of Pakistan Extraordinary, Part-II 16.11.2002, SRO 799(1)/2002 dated 15.11.2002 was issued. It reads as under:
"In exercise of the power conferred upon him by Ordinance of 2002, (Chief Executive's Order 24, 2002) and all other powers enabling him in that behalf, the Chief Executive of the Islamic Republic of Pakistan is pleased to appoint the 16th day of November, 2002 to be the day on which the following provisions of the Constitution as amended by the said Order shall come into force; Preamble: Articles 1 to 58 (both inclusive), Article 64 to 100 (both inclusive), Articles 139 to 231 (both inclusive), Articles 240 to 280 (both inclusive) annexes and schedules to the Constitution."
The above reading will clarify that Article 64 to 100 cover Article "89" which was revived on 16.11.2002, therefore, on 25th October, 2002 when Ordinance LXXXV of 2002 whereby Section 489-F PPC was inserted, Article 89 and its operation was still suspended and time limitation of four months for the validity of any Ordinance issued by the President/Chief Executive was not applicable and relevant. Furthermore, Ordinance LXXV of 2002 was issued by the President/Chief Executive under P.C.O. No. 1 of 1999 read with P.C.O. (Amendment) Order 9 of 1999 and not under Article 89 of the Constitution. Please read preamble of Ordinance (LXXXV of 2002).
Section 489-F PPC or Ordinance LXXXV, 2002 would remain protected by Article 5(1) of Order (9 of 1999) dated 15.11.1999 and by Constitution (17th Amendment) Act, 2003 which was gazetted on 31.12.2003. Under the said Act, Constitution was further amended. Likewise, Article 270-AA was also further amended. According to Article 270-AA of the 17th Amendment Act, the proclamation of emergency of the 14th of October, 1999 and all President Orders including all other laws made between the 12th day of October, 1999 and the date on which this Article comes into force (31.12.2003) are accordingly affirmed, adopted and declared to have been validly made by the competent authority notwithstanding anything contained in the Constitution.
Even otherwise, the consistent view of the Superior Courts of the country is that law should be saved rather than destroyed and Courts must lean in favour of upholding the Constitutionality of the legislation, 2000 SCMR 1956, Dr. Tariq Nawaz vs. Government of Pakistan.
In view of the above discussion and Constitutional position, both Writ Petition No. 3465/05 (Major Retd. Ijaz Ahmad Bhatti vs. State) and Writ Petition No. 7261/2005 (Qureshi Abdur Rauf vs. DPO, etc.) are dismissed, the Section 489-F PPC is declared as valid and a living law.
(A.A.) Petitions dismissed.
PLJ 2006 Lahore 464 (DB) [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq and Muhammad Jehangir Arshad, JJ.
AAMAR TUFAIL--Appellant
versus
MUHAMMAD SADIQ on behalf of his Legal Heirs--Respondents
R.F.A. No. 57 of 1992, heard on 11.10.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O.XX, R. 5 & S. 96--Findings of Court on merits--Non-compliance of provision of O.XX, R. 5 of C.P.C.--Impugned judgment was set aside and case was remanded to trial Court for decision afresh in accordance with law. [P. 468] D
Negotiable Instruments Act, 1881 (XXVI of 1881)--
----S. 4--Promissory note--Attestation--No witness is required to testify promissory note--In absence of requirement of attestation by law i.e. Negotiable Instruments Act, Promissory note requires no attestation of witnesses and thus, is neither covered by Art. 17 of Qanun-e-Shahadat, 1984 which is a general law nor non-production of at least two witnesses to prove execution of Pro-note was fatal for making the same admissible in evidence--Trial court was, thus, not right in excluding disputed Pronote from consideration either for want of attesting witnesses or for non-production of two witnesses for proof thereof, in terms of Art. 79 of Qanun-e-Shahadat Order, 1984. [Pp. 467 & 468] A, B & C
NLR 1994 AC 661; PLD 1986 Quetta 232; PLD 2000 Lahore 1619; PLD 2003 S.C. 31 and PLD 1996 Lahore 367 ref.
Ch. Muhammad Iqbal Abid, Advocate for Appellant.
Ch. Ghulam Muhammad, Advocate for Respondents.
Date of hearing: 11.10.2005.
Judgment
Muhammad Jehangir Arshad, J.--The Appellant who was plaintiff before the learned trial Court is aggrieved of the judgment and decree dated 29.3.1992 whereby the suit filed by him for the recovery of Rs. 7,60,000/- on the basis of some Pronote dated 22.4.1987 was dismissed by the learned Additional District Judge, Sahiwal.
ISSUES:
Whether the Pronote in question in forged, fictitious and without consideration? OPD
Whether the deceased defendant now succeeded by the legal representatives on record was liable to pay the said amount to the plaintiff? OPP.
Relief.
The case was fixed for recording evidence of the appellant. In the meanwhile, another application of the respondents seeking decree of the suit to the extent of known estate of the deceased also stood dismissed by the learned trial Court on 31.3.1990. However, after recording evidence, the learned trial Court vide judgment and decree dated 29.3.1992 dismissed the suit. Hence, this R.F.A.
Before this Court, it is argued by Chaudhry Muhammad Iqbal Abid, Advocate learned counsel for the appellant that the learned trial Court dismissed the suit, firstly by holding that as the Pronote was neither attested by two witnesses as required by Article 17 of the Qanoon-e-Shahadat Order nor two witnesses have been produced within the meaning of Article 79 of Qanoon-e-Shahadat Order, hence, the same could not be used in evidence and secondly that the evidence of PWs was not confidence inspiring, therefore, was not relied upon by the learned trial Court. The contention of the learned counsel for the appellant is that as Pronote Ex.P-1 as defined by Section 4 of the Negotiable Instruments Act is not required to be attested by any witness, therefore, the learned trial Court was not justified in excluding the same from consideration by applying provisions of Articles 17 and 79 of Qanoon-e-Shahadat Order. On merits, it has been argued by the learned counsel that the findings recorded by the learned trial Court cannot be considered as a judgment at all, as the same neither refers to the evidence nor is in consonance with the provisions of Order XX, Rule 5 CPC. In support of this contention, the learned counsel has placed reliance on the case of "Zaheer ud Din Sheikh versus Shatab Khan Nasim" (NLR 1994 A.C 661), "Mst. Sughran Begum and 11 others versus Haji Mir Qadir Bakhsh and 2 others" (PLD 1986 Quetta 232).
On the other hand, Ch. Ghulam Muhammad, Advocate appearing on behalf of the respondents has supported the findings of the learned trial Court and by placing reliance on the case "Muhammad Nawaz versus Abdul Sattar" (PLD 2000 Lahore 1619) and "Maqsood Ahmad and others versus Salman Ali" (PLD 2003 Supreme Court 31) has contended that Pronote being a document creating future obligation, was thus required to be attested by two witnesses in terms of Article 17 of Qanoon-e-Shahadat Order and the execution of the same could only be proved by producing at least two witnesses as required by the said Article. Further contends that the learned trial Court rightly decided Issues Nos. 1 and 2 against the appellant/plaintiff after proper appraisal of evidence produced by the parties.
We have considered the arguments of learned counsel for the parties, gone through the record and also perused the cited case law.
The first question requiring determination is as to whether a Pronote is a document which requires attestation of two witnesses within the contemplation of Article 17 of Qanoon-e-Shahadat Order? We have gone through the case law cited by both the parties. We are not persuaded to agree with the findings of the learned trial Court as well as the arguments of learned counsel for the respondents that Pronote Ex.P-1 is a document which requires attestation by two witnesses within the meaning of Article 17 of Qanoon-e-Shahadat Order, for the simple reason that a transaction through Pronote is governed by Special Law i.e. Negotiable Instruments Act and Section 4 of the said Act defines the Promissory Note as under:
"Promissory Note. A "Promissory Note' is an instrument in writing (note being a blank-note or a currency note) containing an unconditional undertaking, signed by the maker, to pay (on demand or at a fixed or determinable future time) a certain sum of money only to, or to the order of, a certain person, or the bearer of the instrument."
The above definition of Negotiable Instruments Act makes it quite clear requiring no witness to testify the Promissory Note and obviously for the reason that Promissory Note is a promise by its maker for the payment of amount received under Negotiable Instruments Act and in case if the same requires certain attestation, the very nature of the instrument i.e. Promissory Note would become a bond. At this stage reference to the following definition of "Bond" as given in Section 2(5) of the Stamp Act, 1899 would not be inapt for the proper understanding of difference between the Promissory Note and a Bond:
"(5) "Bond": "Bond" includes--
(a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed as the case may be;
(b) any instrument attested by a witness and not payable to order or bearer whereby a person obliges himself to pay money to another; and
(c) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another."
In terms of clauses (b) and (c) of above definition, it is clear that Bond is also a promise made by its maker but to be attested by witnesses, whereas, the definition of Promissory Note as given in Negotiable Instrument Act, though also says that same is a promise by its maker yet does not require that the same be attested by witnesses. We are supported in our view by a Division Bench judgment of Quetta High Court reported in "Mst. Sughran Begum and 11 others versus Haji Mir Qadir Bakhsh and 2 others" (PLD 1986 Quetta 232) and have no hesitation in holding that in the absence of requirement of attestation by law i.e. Negotiable Instruments Act, a Promissory Note requires no attestation of witnesses and thus is neither covered by Article 17 of the Qanoon-e-Shahadat Order which is a general law nor non-production of at least two witnesses to prove the execution of Pronote was fatal for making the same admissible in evidence. The judgment of this Court in "Zaheer ud Din Sheikh versus Shatab Khan Nasim" (NLR 1994 A.C. 661) is also to the same effect.
As regards the case law cited by learned counsel for the respondents i.e. "Maqsood Ahmad and others versus Salman Ali" (PLD 2003 Supreme Court 31), the same is not applicable to the present case as the dispute in the said case was of execution of General Power of Attorney and not of Promissory Note. However, as far as the judgment delivered in "Muhammad Nawaz versus Abdul Sattar" (PLD 2000 Lahore 1619) is concerned, we are not persuaded by the same on the ground that said judgment is based on a Division Bench judgment of this Court in "Abdul Khaliq versus Muhammad Asghar Khan and 2 others" (PLD 1996 Lahore 367) and the matter in dispute in the said judgment was about validity of agreement to sell in the absence of attesting witnesses and by analogy the said judgment of Division Bench has been applied by the learned Single Judge in the case "Muhammad Nawaz versus Abdul Sattar" (PLD 2000 Lahore 1619) holding the Pronote a document requiring attestation of two witnesses. The question whether attestation of two witnesses was legal requirement of Pronote under Negotiable Instruments Act was neither raised nor considered by the learned Single Judge in his judgment. We, therefore, find force in the contention of learned counsel for the appellant that the learned trial Court was not right in excluding the disputed Pronote from consideration either for want of attesting witnesses in terms of Article 17 of Qanoon-e-Shahadat Order or for non-production of two witnesses for its proof as required by Article 79 of the said Order.
As regards the second contention of learned counsel for the appellant that the learned trial Court while recording its findings on merits of the case has neither fully discussed the evidence nor has passed the said judgment within the meaning of Order XX, Rule 5 CPC, we have gone through the said findings of the learned trial Court and find substantial force in the said contention of the learned counsel. The findings of the learned trial Court on merits as discussed in para-16 of the impugned judgment neither can be considered a reasoned judgment nor the same fulfills the requirement of Order XX, Rule 5 CPC.
Resultantly, this appeal is allowed, the impugned judgment dated 29.3.1992 is set-aside and case is remitted to the learned trial Court for deciding the same afresh by proceeding from the stage of hearing final arguments of both the parties and recording fresh judgment, in accordance with law. The parties are directed to appear before the learned District Judge, Sahiwal on 23.11.2005.
(A.A.) Case remanded.
PLJ 2006 Lahore 469 [Rawalpindi Bench Rawalpindi]
Present: Muhammad Muzammal Khan, J.
M/s. FUEL AUTO SUPPLY COMPANY, ISLAMABAD and 5 others--Petitioners
versus
FEDERATION OF PAKISTAN through Secretary, MINISTRY OF COMMUNICATION, ISLAMABAD and 2 others--Respondents
W.P. No. 2589 of 2004, heard on 6.7.2005.
National Highways and Strategic Roads Control Rules, 1998--
----Art. 199--General Clauses Act (X of 1897), S. 24--Constitution of Pakistan, 1973, Art. 24--Contract Act (IX of 1872), S. 2(e)--Cancellation of concluded transaction/agreement--Validity--Lease holders were not given any notice nor they were provided opportunity of hearing and explaining their stance--Rule of locus poenitentiae was fully attracted and vested right of user and protection of leased properties had accrued in favour of petitioners which could not be taken away at their back--Respondent Ministry was not vested with power to cancel leases in question--Respondent Authority being sanctioning authority could have done so, had lease agreements been not acted upon and no right in favour of lessees had been created thereunder--Cardinal principle of natural justice which required that no one should be condemned un-heard having not been followed, concluded transactions could not have been cancelled through a sketchy, non-speaking order--Impugned orders being illegal, un-warranted and without jurisdiction were struck down. [Pp. 475, 476 & 477] A, B & C
Administrative Law by H.W.R. Wade and C.F. Forsyin, (17th ed); Halsbury's Laws of England (Fourth) Vol. 1 in Chapter Administrative powers; PLD 1975 Karachi 373; AIR 1952 S.C. 16; 1994 CLC 2214; 1972 SCMR 154; PLD 1975 SC 355; 1989 CLC 1255; PLD 1990 SC 1070; 1992 SCMR 1420; 2003 SCMR 1128; 2004 SCMR 497; PLD 1962 Lahore 151; 1985 CLC 2859; 1990 Law Notes 138; 1991 MLD 267; 1991 CLC 229; PLD 2002 SC 408; 1998 SCMR 2268; PLD 2002 SC 630 ref.
Raja Muhammad Akram, Advocate for Petitioners.
Dr. Danishwar Malik, Deputy Attorney General for Respondent No. 1.
Mr. Jehanzeb Khan Bharwana, Advocate with Muhammad Younas Chaudhry, Director Legal NHA for Respondents Nos. 2-3.
Date of hearing: 6.7.2005.
Judgment
This judgment proposes to decide instant Constitutional petition alongwith Writ Petitions Nos. 12693/2004, 2079/2004/RWP, 2705/2004/RWP, 2725/2004/RWP, 2853/2004 RWP, and 2941/2004/RWP, as all these petitions challenged same action of the respondents and raised similar questions of law/facts. All the petitioners challenged the legality of orders conveyed through Letters No. 8(1)/NHA/GM(OPS)/2004/2045, 8(1)/NHA/ GM(OPS)/2004/2046, 8(1)NHA/GM(OPS)/2004/2065, 8(1)/NHA/GM (OPS)/2004/2066, 8(1)/NHA/GM(OPS)/2004/2088 and 8(1)/NHA/GM (OPS)/2004/2092 based on letters dated 24.6.2004 issued by the Ministry of Communications and prayed the same to be declared illegal, void and of no legal consequence, whereby respective leases of the petitioners were ordered to be cancelled.
Precisely, relevant facts for disposal of all the above referred petitions are that National Highway Authority, a body corporate constituted under the National Highway Authority Act (XI of 1991), as amended in 2001 whose affairs, administrative/ministerial vest in Executive Board, headed by Chairman with designation of Chief Executive in pursuance of Section 9 of the Act and its policy guidelines for tolls and commercial use of ROW (Right of Way) were approved by NHA Executive Board in its 92nd meeting held on 15.3.2000 and the Control Rules, in this behalf, were approved in its 104th meeting on 29.5.2002. In this manner, NHA was empowered to implement its policies for preservation/commercial use of ROW regarding establishment of filling/CNG stations, hotels/motels, restaurants, nurseries, factories, shops, khokhas, kiosks, hoarding boards, utility lines etc. Section 10(2)(xiii) of NHA Act, 1991 empowered the NHA to raise funds (local and foreign) through borrowing, floating of bonds, sharing or leasing of assets or any other means from time to time. Similarly, Rule 14 of the National Highways and Strategic Roads Control Rules, 1998 as amended in 2002 empowered the authority to lease the Government lands for establishment of movable properties like nurseries, kiosks, khokhas, vendor stalls etc. and for issuance of such like licenses and entering into lease agreements for the construction or use by private persons. NHA having been equipped with the statutory powers through its Chairman and General Manager (Operations) decided to utilize the Road Assets available to it for generating/collecting revenue through licences for construction of the approach roads, installation of filling/CNG stations and leasing of the available land of the ROW. The income collected through these measures wherein all the NOC fees, lease charges, approach and ground rental charges, administrative and other revenues generated from commercial use of ROW is channeled into Road Maintenance Fund Account of NHA. With this background, in order to achieve those objectives, NHA invited applications from general public through advertisement in all the leading newspapers throughout Pakistan for installation of filling and CNG Stations on National Highways network spreading over 1800 kilometers N-5 from Karachi to Peshawar in November, 2001 and onward.
Petitioners in all the petitions in response to above referred advertisements, applied to the Chairman NHA for lease of different pieces of land for establishing filling/CNG stations etc., on different points and they submitted bank guarantees as security deposits, paid the demanded registration/NOC fees, deposited the required amounts for lease expenses and also completed all the codal formalities. All the applications for grant of leases were processed for a long period of two years through a transparent and open process. Respondents after completing all the requirements, ultimately approved the respective leases in favour of the petitioners and approval as required from the Chairman NHA was granted and was conveyed to them through official correspondence. The lease money was deposited and lease agreements were duly signed between the petitioners and NHA, whereunder, the lessees entered into possession of the lands leased out to them and a few of them had also raised certain constructions for raising of proposed sites. The process of the leases was complete on delivery of possession of the leased parts of the properties when Ministry of Communications unilaterally decided to cancel all the already completed leases by cancelling lease agreements without pointing out any fault on part of the lessees, without assigning any lawful reason for the decision taken, without issuing notice to the lessees and without providing them an opportunity of hearing through the letters under challenge before this Court, detailed above.
In all the Constitutional petitions, it is claimed that cancellation order by the Ministry of Communications is bad at law, as the same was claimed to have been motivated under political pressure and for considerations alien to law/norms of natural justice. It was also asserted by the petitioners that NHA is an autonomous authority controlled and administered by a law, wherein Ministry of Communications does not figure anywhere for an action like the one taken against them. According to the petitioners, lease once completed could not have been rescinded except for the reasons detailed in the lease deeds or on account of any default on part of the lessees and since the petitioners did not violate the terms of the lease, action complained was unwarranted, having been taken unilaterally, without notice and hearing them. It was further emphasized on behalf of the petitioners that impugned action of Ministry of Communications is violative of their fundamental rights warranted by the Constitution of Islamic Republic of Pakistan, 1973 and the principles governing the subject, settled through dictates on the basis of stare decises. Rule of locus poenitentiae was also pressed into service, as according to them, completed transactions which were acted upon, could not have been rescinded earlier to the period for which those were sanctioned. The letters impugned were also challenged being violative of terms and conditions between the parties as laid down in the concluded lease agreements.
All the petitions were opposed by Mr. Jehanzeb Khan Bharwana, Advocate for NHA, who was accompanied by Muhammad Younas Chaudhry, Director Legal NHA and by the learned Deputy Attorney General on behalf of the Ministry of Communications, refuting the arguments of the petitioners with the submissions that lessees had no vested right in the property which was owned by the Federal Government, who in its discretion cancelled all the leases without any exception, hence the petitioners have no right to maintain Constitutional petitions, as the decision impugned related to policy matter. It was further urged that possession of the leased parts of Federal Government land has not been taken over by the lessees so far, hence all the principles invoked by them are not applicable.
I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, general directions, administration, management and affairs of NHA vest in its Executive Board, which is governed by NHA Act (XI of 1991) and Control Rules, 1998 as amended up-to-date and it through 92nd meeting dated 15.3.2000 and 104th meeting dated 29.5.2002 empowered the NHA to implement its policies of preservation/commercial use of ROW regarding establishment of filling/CNG stations etc. In the entire framework of the Act (ibid) or the Rules above referred, Ministry of Communications does not figure anywhere to take action of cancellation/rescission of acts done by the NHA. The question which hinges for determination is when an authority is not conferred with any power, could it embark upon to annul the lawful actions taken by the competent statutory functionary. In order to examine the legality or otherwise of the action by the Ministry of Communications, Government of Pakistan through letters impugned, I can with advantage refer to Administrative Law by H.W.R. Wade and C.F. Forsyth, Seventh Edition, wherein under the heading of Power in the wrong hands, the author remarked in the following words:
"Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with some one else, or may allow some one else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at lease in part, by the wrong authority, and the resulting decision is ultra vires and void."
Similarly, Halsbury's Laws of England, Fourth Edition, by Lord Hailsham of St. Marylebone, Volume-I, in Chapter "Administrative Powers", under the heading of "Acting under dictation", remarked as below:
"Acting under dictation. A body entrusted with a statutory discretion must address itself independently to the matter for consideration. It cannot lawfully accept instructions from, or mechanically adopt the view of, another body as to the manner of exercising its discretion in a particular case, unless that other body has been expressly empowered to issue such directions or unless the deciding body or officer is a subordinate element in an administrative hierarchy within which instructions from above may properly be given on the question at issue."
A Division Bench of Sindh High Court in the case of Haji Noor Muhammad vs. Karachi Development Authority and others (PLD 1975 Karachi 373) while examining the Allotment Regulations framed by Karachi Development Authority, remarked about action of its Chairman, as below:
"The K.D.A is a statutory authority and one of its functions is to prepare housing schemes, develop plots and give them to housing societies, individuals and construction companies. It was in compliance with its statutory duties that it had issued the scheme for allotment of plots and it was under that scheme that the petitioner had applied for and obtained a plot. This was thus not a case of simple agreement, but a performance of statutory obligation and function."
In case of Commissioner of Police, Bombay vs. Gordhandas Bhanji (AIR (39) 1952 S.C. 16) Supreme Court of India while examining powers conferred by Rules framed under Section 22 of the City of Bombay Police Act, held that the only person vested with authority to grant or refuse a license for the erection of a building to be used for purposes of public amusement was the Commissioner of Police and this power could not be exercised by the State Government in place of the person authorized.
In case of Taj Muhammad vs. Town Committee, Fatehjang through Chairman and 3 others (1994 CLC 2214), this Court held that if a statutory functionary has been invested with certain power, it must be exercised by him uninfluenced by any other person after independent application of mind and his powers could not be exercised even by his superiors, in absence of specific delegation of powers, if conferred by the statute. The other relevant judgments on the subject are in the cases of Superintendent of Police, Special Branch, Karachi and others vs. Abubakar and another (1972 SCMR 154), The Majlis-i-Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur vs. The Secretary to Government of West Pakistan, Communication and Works Department, Lahore (PLD 1975 S.C. 355) and Barkat Ali and another vs. Ch. Fazal Hussain and another (1989 CLC 1255).
The Honourable Supreme Court of Pakistan in the case of Ahmad Khan vs. Member (Consolidation), Board of Revenue, Punjab, Lahore and others (PLD 1990 S.C. 1070) graciously struck down order of the Minister for Consolidation for interference in a confirmed consolidation scheme under Section 13 of the West Pakistan Consolidation of Holdings Ordinance, 1960 and held that under the law Minister for Consolidation had no jurisdiction or authority to pass any order in respect of consolidation scheme already confirmed under the law against which all the objections and judicial proceedings in the nature of appeals and revisions had already been exhausted and disposed of. It was further observed in the judgment that order of the Minister for Consolidation was without jurisdiction and void ab initio. The statutory functionaries were held, alone could have interfered with the orders challenged before them and the Minister being not one of those functionaries had no authority to intervene.
Besides absence of authority in the Ministry of Communications, let us examine the legal worth of cancellation of leases order, pronounced by it. Letter of Ministry of Communications No. 9(2)/97-Roads-Vol.II reads as under:
"Subject: Allotment of land by NHA for Pumps/CNG
I am directed to refer to the above subject and to state that in order to make the process of allotment of land by NHA for petrol pumps/CNG and other facilities more transparent the following steps be taken forthwith:--
(a) The further allotment of NHA land for above purpose be stopped till the new SOP is in operation. The new SOP will be devised which will have legal cover as per law.
(b) The previous allotments will stand cancelled, however, the places where either the construction has been completed or is in progress the same will be reviewed by a Committee in the MOC about the fixation of its price having relevancy to the rates prevalent in the vicinity. The Committee will consist of Joint Secretary (II), Ministry of Communications, Representative of NHA, Representative of Motorway Police, Representative of viguance.
(c) The facilities which existed before the federalization of the roads and were supposed to be regularized should be processed for regularization within sixty days.
(d) The sites available for future allotment be identified after survey which will be disposed of through an open auction and wider publicity."
(Underlining is mine to highlight observation applicable)
The above reproduced decision of the Ministry of Communications clearly depicted that there was no reason mentioned for cancellation of the already concluded transactions, the lease holders were not given any notice earlier to taking this decision and they were not provided an opportunity of hearing and explaining their stance/position. With the background already detailed in factual part of this judgment, Rule of locus poenitentiae was fully attracted because completion of leases and taking over of possession by the petitioners is not disputed by any of the respondents and out of this process, vested rights of user and protection of leased properties accrued in favour of the petitioners which could not be defeated or taken away at their backs. The Honourable Supreme Court in the case of Muhammad Nawaz vs. Federation of Pakistan and 61 others (1992 SCMR 1420) held that where a competent authority had competently passed the orders regularizing the service of certain officers and the same authority had confirmed the service of other officers which orders had taken effect and created valuable rights in favour of the persons mentioned in the said orders, cancellation of those by the Ministry of the department was not valid as under the rule of locus poenitentiae the said order could not be cancelled.
Alike dictum was propounded by the Honourable Supreme Court in the case of Pakistan International Airlines Corporation through Chairman vs. Inayat Rasool (2003 SCMR 1128) and it was held that authority having power to make an order has also power to undo the same except when the order once having taken legal effect and created certain rights in favour of any individual and the same cannot be withdrawn or rescinded to the detriment of those rights.
The Honourable Supreme Court reaffirmed earlier judgments in the case of Muhammad Zakir Khan vs. Government of Sindh and others (2004 SCMR 497). Applying the judgments of the Honourable Supreme Court to the case in hand and if the impugned orders are examined on the touchstone given therein, it will become manifest that on the one hand Ministry of Communications could not cancel the leases being not authorized by law, whereas on the other hand, such an action could have even been taken by NHA, who being the sanctioning authority could have done so, had the lease agreements been not acted upon and no right in favour of the lessees had been created there-under. At the risk of repetition, it is observed that since the lessees had entered into possession of the leased parts of the properties and had raised certain constructions, action if at all, was to be taken against them, the same could only be taken in terms of lease agreements reduced to writing between them.
From the above resume, law does not favour actions/orders/decisions to be taken at the back of the parties to be effected. Notice/hearing earlier to cancellation of concluded leases, was right of the lessees, which was denied, as observed above. Law on the subject is settled by this time, where under it is the mandate that principles of natural justice have to be read in every statute irrespective of the fact that no such provision is incorporated therein. One of the cardinal principles of natural justice is that no one should be condemned unheard. If law on this point is needed, a reference can be made to the cases of Mst. Sattan and others vs. Group Captain Masroor Hussain, Officer Commanding P.A.F. Station Sargodha Cantt. (PLD 1962 Lahore 151), Mst. Abeda Begum vs. Government of Pakistan and others (1985 CLC 2859), Muhammad Tufail vs. Government of Punjab (1990 Law Notes 138), Messrs Murree Brewery Company Limited vs. Director-General, Excise and Taxation and 3 others (1991 MLD 267), Gul Muhammad and 8 others vs. Buxal and 2 others (1991 CLC 229) and Mst. Zahida Sattar and others vs. Federation of Pakistan and others (PLD 2002 S.C. 408).
Under law, every Court or authority dispensing judicial or quasi judicial functions is required to give reasons in support of its decisions/orders, especially when those deprive someone of his vested rights, but the Ministry of Communications through a sketchy, non-speaking and unreasoned order took the action under discussion, which course was not permissible. Transactions in favour of the petitioners were concluded through transparent means and no one objected to those. The above reproduced decision of the Ministry has not pointed out as to why those leases were being cancelled and how the forthcoming transactions would be transparent. Such an order cannot sustain the scrutiny of judicial review if carried on the basis of provisions of Section 24 of the General Clauses Act, 1897 and the judgments in the cases of Messrs Airport Support Services vs. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) and Col. (Retd.) Ayub Ali Rana vs. Dr. Carlite S. Pune and another (PLD 2002 S.C. 630). In view of this analysis, submissions of the learned counsel for the respondents have no legal value.
For what has been discussed above, action by the Ministry of Communications, Government of Pakistan, reflected in the impugned letters, is absolutely illegal, unwarranted and without jurisdiction in result of which all the Constitutional petitions are allowed and striking down the action in dispute, writs as prayed are issued, with no order as to costs.
(A.A.) Petition accepted.
PLJ 2006 Lahore 477 (DB)
Present: Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ.
PERVAIZ AKHTAR and 3 others--Appellants
versus
STATE through CIRCLE OFFICER, ANTI-CORRUPTION DEPARTMENT, TOBA TEK SINGH--Respondent
I.C.A. No. 79 of 2005 in W.P. No. 190 of 2005, decided on 13.4.2005.
(i) Constitution of Pakistan, 1973--
----Art. 189--Decision of Supreme Court--Binding effect of--Any decision of Supreme Court shall to extent that the same decides a question of law or is based upon annunciate a principle of law, be binding upon other Courts of Pakistan. [P. 482] C
(ii) Criminal Procedure Code, 1898 (V of 1898)--
----S. 154--Laws Reforms Ordinance (XII of 1972), S. 3--Word "proceedings" as mentioned in proviso (1) of S. 3 of Law Reforms Ordinance 1972, whether includes F.I.R.--F.I.R. is included in word "proceedings--Order of single bench to register F.I.R. or its refusal to register a case would be covered by the word proceedings, therefore, such order was appealable under I.C.A. [P. 482] B
(iii) Words and Phrases--
----Terms "proceedings" and "original order"--Connotation--Proceedings are taken before judicial forum--Proceedings include any stage before matter therein was concluded--Expression "original order" mean an order passed under a law which provides an appeal or revision to challenge said order. [P. 481] A
2003 SCMR 1597; PLD 1984 SC 344; 1989 SCMR 1351; PLD 1996 Lahore 82; 2003 SCMR 1597 and PLJ 1996 Lahore 82 ref.
Mr. Sher Afgan Asadi, Advocate for Appellants.
Date of hearing : 13.4.2005.
Order
Muhammad Muzammal Khan, J.--The appellants have called in question in this Intra Court Appeal order dated 2.2.2005, passed by a learned Single Bench of this Court in Writ Petition No. 190/05.
The learned counsel for the appellants has prayed that the order of the learned Single Judge be set aside in FIR No. 24/05 dated 14.12.2004, under Sections 409, 420 PPC read with Section 5(2) of Prevention of Corruption Act, 1947 registered at P.S. Anti Corruption Establishment, T.T. Singh be quashed, etc.
The background of filing Writ Petition No. 190/05 is given in the writ petition is that, "all the petitioners/appellants are Patwaris. On 3.2.1991, the Members, Municipal Committee, Gojra moved an application for extension of municipal limits of Municipal Committee, Gojra. Apparently a
Notification was issued by the Commissioner, Faisalabad Division on 17.7.1991, whereby the municipal limits of M.C. Gojra were extended, but the said
Notification was not published in the Gazette of the Government of the Punjab. An anonymous application was sent by a citizen to
Senior Member, Board of Revenue and Directorate of Anti Corruption
Establishment, Faisalabad, alleging that in certain mutations, of Chak No.
296/JB, Tehsil Gojra, District T.T. Singh, grave irregularities had been committed causing colossal loss to the Government. According to the application, the sale of certain land had to be transferred only through registered deeds, whereas, the lands were transferred through oral mutations, thereby a lot of money on stamp fee account and development fee account was embezzled by the appellants, and approximately a loss of Rs. 40 lacs was caused to the Government. The DDO(R) suspended all the appellants on 31.5.2004. The
DDO (R) also made a reference to the Additional Director, Anti Corruption
Establishment, Faisalabad on 9.6.2004 attributing illegalities, irregularities to the appellants. The appellants challenged registration of case against them on the grounds that there was no one as complainant against the petitioners in the instant case.
The inquiry and subsequent FIR was registered on an anonymous application, on which, no signature or name was mentioned. Neither any extention of urban limits of Gojra was registered in the roznamcha waqiati' nor was it published in the Gazette of Government of the Punjab and without Gazette Notification there could not be imposition of stamp duty on registration of sale-deed under the Registration Act, even the value table drawn by the Collector was never notified in the official Gazette, under Section 27-A. No such demand could be made even by the Sub-Registrar; that the appellants' duty was only to enter the mutations in theroznamcha waqiati' which was to be further attested by the attesting Revenue Officer. Therefore, the basic responsibility was of the
Revenue Officer and not of the appellants. The appellants were not aware of any official Notification through which the urban limits were extended. For the above reasons, the learned counsel for the appellants contends that registration of FIR No. 24/04 is without lawful authority and of no legal effect.
The learned Single Bench dismissed the writ petition while observing that the Notification was issued by the Commissioner, Faisalabad Division regarding extension of the municipal limits of M.C. Gojra and it was also notified by the Commissioner on 17.7.1991, therefore, appellant cannot say that they were not in the knowledge that limits of Municipal Committee had not been extended. On this question, according to the learned Single Bench, trial Court could go into further details after recording the evidence of the parties. The learned Single Bench further observed that a thorough inquiry was held in this matter by Section Officer, Anti Corruption Establishment, according to which, appellants as well as concerned Tehsildar who attested the mutations were found guilty.
The first hurdle which the learned counsel for the appellants has been asked to over come is, whether an ICA is competent against an order of a Single Bench of this Court whereby quashment of FIR has been refused? According to the learned counsel, the ICA is competent in this case.
Similar question came under consideration before the Hon'ble Supreme Court in Nawazul Haq Chowhan vs. The State and others, 2003 SCMR 1597. Briefly, facts of the above cited case are that a Writ Petition No. 178/93 was filed before the Lahore High Court, Rawalpindi Bench, Rawalpindi to seek quashment of an FIR No. 553/94. The prayer was allowed against which ICA No. 7/93 was filed which was also accepted and the order passed by the learned Single Bench for the quashment was set aside. The order of the Lahore High Court Lahore in the ICA was challenged in Civil Petition No. 29/94 before the Hon'ble Supreme Court in which leave to appeal was granted, inter alia, on the ground as to whether or not ICA lie against the order passed in Writ Petition by the learned Single Bench and as to whether or not the word "proceedings" mentioned in the proviso (1) of Section 3 of Law Reforms Ordinance, 1972, includes the FIR. The Hon'ble Supreme Court held that the above controversy had been resolved by this Court in the case of Mst. Karim Bibi and others vs. Hussain Bakhsh and another (PLD 1984 SC 344) and Settlement Commissioner(L) and others vs. Mauj Din and others (1989 SCMR 1351). The Hon'ble Supreme Court held while holding that in view of Section 3(2) of the Law Reforms Ordinance, 1972 ICA is not maintainable, accordingly, Civil Appeal No. 553/94 was allowed and order dated 14.3.1993, passed in ICA No. 7/93 by the learned Division Bench of the Lahore High Court, Rawalpindi Bench was set aside.
The important question before the Hon'ble Supreme Court in the above case was whether the word "proceedings" mentioned in the proviso (1) of Section 3 of the Law Reforms Ordinance, 1972, includes the FIR? The Hon'ble Court accepted the argument that it does while referring and relying Mst. Karim Bibi and others vs. Settlement Commissioner (L) and others, two earlier cases decided by the Hon'ble Supreme Court as referred to above. It is important to point out that above cases were decided in settlement matters. The definition of word "proceedings" was discussed with the help of previous case law, similarly, the expression "original order" was also discussed as these words are essential, to determine in the above context, whether ICA is competent or not? For convenience, paras-8 & 9 of the said judgment cited above are reproduced as under:--
"8. After giving our anxious consideration to the arguments urged in support of this appeal we are, however, not impressed by any of the contentions raised. The test laid down by the Legislature in the proviso is that if the law applicable to the proceedings from which the Constitutional Petition arises provides for at least one appeal against the original order, then no appeal would be competent from the order of a Single Judge in the Constitutional jurisdiction to a Bench of two or more Judges of the High Court. The crucial words are the "original Order". It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the Constitutional Petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, provided in the relevant statute. Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether then original order passed in the proceedings subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed of or not. Apparently the meaning of the expression "original order" is the order with which the proceedings under the relevant statute commenced. The word "proceedings" has been used in different enactments and has been subject to judicial interpretation in a number of cases wherein it has received either restricted or wide meaning according to the text and subject-matter of the particular statute. I do not consider it necessary to notice the various judgments in which this word was so construed. Suffice it to refer to the case of Nawab Din v. Member Board of Revenue (1) in which this Court had occasion to examine the scope and meaning of the word as it occurs in Section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. A useful discussion will be found in this case with reference to precedents as the meaning of the term "proceedings". An earlier case of Jan Muhammad and another V. Home Secretary, West Pakistan others (2) was referred to in this connection and the view taken therein was declared by this Court as the correct enunciation of the law on the subject. In the latter case reference was made to the definition of the term "proceedings" in the book "Words and Phrases" which may usefully be reproduced as under:
"The term proceedings' is a very comprehensive term, and, generally speaking means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked. Aproceedings' would include every step taken towards the further progress of a cause in Court or before a
Tribunal, where it may be pending. It is the step towards the objective to be achieved, say for instance the judgment in a pending suit. The proceeding commences with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed a comprehensive expression and includes all possible steps in the action under the law, from its commencement to the execution of the judgment".
In the light of the aforesaid definition the proceedings under the Displaced Persons (Compensation and Rehabilitation) Act would seem to commence with the application of a person entitled to the transfer of a property in the compensation pool under the Schedule and the Schemes framed thereunder. Normally the application will be disposed of by an order passed by the Deputy Settlement Commissioner which will apparently be the original in the proceedings. Any party aggrieved by such an order may then invoke appellate or revisional jurisdiction conferred under the statute before the higher authorities or officers. In such a case the proceedings remain the same until their conclusion by the order of the final authority as all the intermediary stages are steps taken towards the further progress of a cause of towards the objective to be achieved, the transfer of a particular property to the person entitled thereto under the relevant provisions of law. Before the amendment of the Displaced Persons (Compensation and Rehabilitation) Act in 1973 there was a right of appeal provided by Section 19, therefore, no letters Patent Appeal was then competent against the order of a Single Judge of the High Court to a larger Bench of the same High Court. Similarly there can no dispute that in cases in which the original order was passed after the aforesaid amendment of law such appeal was competent as the right of appeal under the Displaced Persons (Compensation and Rehabilitation) Act was taken away by the amendment."
From the above judgment, it is clear that proceedings are taken before a judicial forum and proceedings include any stage before the matter is finally concluded. Similarly, the expression "original order" means an order passed under a law which provides an appeal or revision to challenge the said order. The subject-matter of the present I.C.A. or subject of Civil Appeal No. 553/94 before the Hon'ble Supreme Court was for registration of a FIR. Taking an application before SHO for registration of a FIR, according to the appellants, cannot be called "proceedings". It is also contended that Criminal Procedure Code does not provide any right of appeal or revision if registration of a FIR is refused or if a request for registration of a FIR is accepted and the same requires to be challenged. A similar controversy is reported to have been decided by a Division Bench of this Court in Iftikhar Hussain etc. vs. Government of Pakistan etc. (PLD 1996 Lah. 82, D.B). The learned Division Bench held that the relevant law does not provide appeal or revision against an act of the registration of a FIR. The learned Division Bench also discussed PLD 1984 SC 344. For guidance para-6 of the report is reproduced as under:
"6. According to the view taken by the learned Judges of the Division Bench the impugned order dated 24.11.1973 by the Additional Settlement Commissioner was passed in proceedings arising out of the original order dated 25.7.1960 by which property was initially transferred in favour of the predecessor-in-interest of the appellants and in that view of the matter, as the Displaced Persons (Compensation and Rehabilitation) Act, 1958 contained provisions for appeal etc. the bar contained in the proviso to sub-section (2) of Section 3 of the Law Reforms Ordinance as amended was plainly applicable and no Letters Patent Appeal was, therefore, competent."
(A.A.) Appeal dismissed.
PLJ 2006 Lahore 483
Present: Muhammad Akhtar Shabbir, (Chairman) Mian Hamid Farooq and Sh. Abdul Rashid, (Members)
Raja MUHAMMAD SHAFIQUE JAVAID, EX. CIVIL JUDGE--Appellant
versus
LAHORE HIGH COURT, LAHORE through its REGISTRAR--Respondent
Service Appeal No. 51 of 2001, heard on 10.12.2004.
Punjab Sub-ordinate Judiciary Service Tribunal Act, 1991--
----S. 5--Civil Judge--Dismissal order on charge of misconduct, assailed--No evidence of corruption against appellant was available on record--Administration Committee of High Court failed to adopt procedure provided in High Court Rules and Orders--Evidence of prosecution witnesses has not in any way supported allegation of complainant--Strict Compliance of provisions of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 have not been complied with by inquiry officer as well as Authorized Officer--Observations made by or sufficient material--Pendency of disciplinary proceedings against appellant for a long time of seven years is punishment mental agony and torture, therefore, he is entitled for the benefit of the same--Neither complainant nor her special attorney appeared before inquiry officer in support of allegations levelled in complaint--Punishment awarded to appellant was thus, not warranted therefore, he was entitled to re-instatement in judicial service with back benefit. [Pp. 492 & 493] A & B
2003 PLC 316; AIR 1958 Cal. 49; AIR 1958 Bombay 204; 1994 PLC (CS) 111 and 2001 SCMR 256 ref.
Sh. Muhammad Rafiq Goreja, Advocate for Appellant.
Mr. Muhammad Azam Rasool, Advocate for Respondent.
Date of hearing : 10.12.2004.
Judgment
M. Akhtar Shabbir, Chairman.--This service Appeal has been filed under Section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991, against the dismissal order dated 31.1.2001 passed by the Administration Committee, Lahore High Court, Lahore, vide Notification No. 25/RHC/CJJ/ENDST No. 90/RHC/CJJ dated 31.1.2001.
The facts giving rise to the present appeal are to the effect that the appellant joined the judicial service as Civil Judge on 1.4.1978 and has been serving at various places of postings and then he was upgraded as Civil Judge First Class. In the year 1990, while posted at Gujranwala, the appellant has entertained a civil suit on 31.12.1990, which was been decreed ex-parte within a period of one month on 27.1.1991. The defendant/judgment-debtor in that suit was a lady and her husband namely Muhammad Ashraf while posing himself as special attorney made a complaint against the appellant on 9.2.1991 leveling allegation that the appellant being a civil Judge entertained the civil suit on 31.12.1990 and marked the same to his own Court and within a period of one month, he decreed the said suit ex-parte and a fictitious report from the Process Server was obtained showing the judgment-debtor that she had declined to accept the summons issued to her by the Court. On receipt of the said application, an inquiry was conducted against him by Mr. Muhammad Aslam Khan, District & Sessions Judge, Toba Tek Singh, who held the appellant as guilty under the provisions of Rule 3 (b) and (c) of the Punjab Civil Servants (Efficiency and Discipline) Rules 1975, and recommended the major penalty to him.
Mr. Justice Khalil-ur-Rehman Ramday, the Hon'ble Judge of this Court, as he then was, was appointed as an Authorized Officer under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, who charge-sheeted the appellant and the following charges were leveled against him:--
(a) That while posted as Civil Judge Ist Class, Gujranwala during the year 1990-91 you entertained a civil suit for specific performance titled Ijaz Ahmad vs. Begum Rashida Ashraf on 31.12.1990 as Duty Judge and entrusted the same to your own Court.
(b) That you exhibited undue haste in decreeing the said suit ex-parte on 27.1.1991 within a period of one month.
(c) That you passed this decree on the fictitious report of Process Server qua refusal of service by the defendant lady.
(d) That you decreed the suit in collusion with the plaintiff Ijaz Ahmad to thwart the proceedings in ejectment petition titled Begum Rashida Ashraf vs. Doctor Zafar Chaudhry, a relative of the plaintiff.
(e) That you violated the High Court Rules and Orders in not recording the order sheet and the evidence in the civil suit in your own hand.
(f) That in the order dated 9.1.1990 you tampered with the date for which notice was ordered to be published in daily "Wafaq" to make it read as 20.1.1991.
(g) That you failed to record the order dated 27.1.1991 in the order sheet.
(h) That you passed the decree ex-parte in favour of the plaintiff for extraneous considerations.
(i) That you conduct was unbecoming of a gentleman more so a judicial officer;
The Authorized Officer while declaring him to be guilty of misconduct and considering him to be corrupt falling within the ambit of Rule 3(b) and (c) of the Punjab Civil Servant (Efficiency & Discipline) Rules, 1975, was directed to submit his written defence before the Inquiry Officer. Mr. Muhammad Aslam Khan, District and Sessions Judge, Mandi Baha-ud-Din within a period of fourteen days.
The appellant submitted his written reply to the Inquiry Officer on 3.6.1999 whereby he denied the allegations leveled against him. The Inquiry Officer recorded the evidence of Muhammad Ismail PW-1, Clerk of Court to the Civil Court Gujranwala. Muhammad Yaqoob PW-02, Bailiff Civil Courts Gujranwala, Muhammad Akram PW-3, Ahmad to the Court of Senior Civil Judge, Gujranwala, and Mahmood Anwar PW-4, Reader Sessions Court. Neither the complainant nor her alleged attorney namely Muhammad Ashraf, husband of Mst. Rashida Ashraf, defendant/judgment-debtor, appeared before the Inquiry Officer to prove the charges leveled against the appellant. However, the Inquiry Officer on the statements of the four PWs, mentioned above found all the charges, except No. (f), proved against the appellant, found him guilty and recommended major penalty.
On 17.6.2000, the Authorized Officer issued show cause notice to the appellant and directed him to appear before him on 24.6.2000 at 12.00 noon at Lahore.
The appellant made a written reply to the show cause notice on 17.6.2000 and also offered for his personal appearance at the relevant date before the Authorized Officer, who agreeing with the report of the Inquiry Officer imposed a major penalty of dismissal from service of the appellant, but the Hon'ble Chief Justice and the Judges of the High Court after perusing the record of the proceedings and recommendation of the Authorized Officer had ordered for issuance of final show cause notice to the appellant and he was directed to file his explanation within a period of ten days from the receipt of the notice with a further direction to appear before Mr. Justice Mian Nazir Akhtar-J for personal hearing on behalf of the Authority on 5.8.2000 at 11.00 a.m. Mr. Justice Mian Nazir Akhtar, as he then was, also sided with the opinion of the Inquiry Officer as well as the Authorized Officer affirmed the penalty of dismissal of the appellant from service.
Learned counsel for the appellant contends that on the date when the prosecution evidence was closed, the appellant was directed to produce his defence, which was not possible for the appellant. It was the requirement of natural justice that the appellant should have been provided an opportunity to lead his evidence to rebut the allegations leveled against him. Further contends that the applicant/complainant and his wife/defendant judgment-debtor did not appear before the Inquiry Officer to support the allegations. Learned counsel submits that the Inquiry Officer has recommended major penalty while it was not his function, rather it was the power of the Authorized Officer. Further submits that the case of the appellant was an act of only omission and it was not a case of mis-conduct, Therefore, he is entitled to reinstatement in service with back benefits. He placed reliance on the case of Muhib Ali, Chairman, State Life Insurance Corporation of Pakistan and 6 others (2003 PLC 316). Further submits that all the charges leveled against the appellant have arisen out of one allegation that the appellant entertained the suit tilted; Ijaz Ahmad vs. Begum Rahsida Ashraf, on 31.12.1990 and entrusted the same to his own Court, which was decreed ex-parte within a period of one month. Learned counsel argues that the main allegation against the appellant does not cover within the ambit of misconduct and thus no major penalty could be imposed upon him. Further argues that the Inquiry Officer was not within his powers to recommend the penalty of dismissal of the appellant which is the major penalty and it was the competent Authority which could impose the same. Reliance in this context has been placed on the case of Monmatha Nath Ghosh vs. Director of Public Instructions Government of West Bengal and others (AIR 1958 Calcutta 49). He further argues that the appellant has not admitted several charges framed against him. Although, he was asked for personal hearing yet he was not provided an opportunity to rebut the statement of the prosecution evidence and the application of relevant rules is not attracted to the case of the appellant. Reliance in this behalf is placed on the case of Dadarao Shegoji Tidke vs. State of Madhya Pradesh and another (AIR 1958 Bombay 204). He further argues that no charge of corruption and corrupt practices has been leveled or proved and the case for mis-conduct against the appellant is not made out in the facts and circumstances of the case, therefore, the major penalty has been illegally imposed upon him. Lastly argues that Article 129 of the Qanun-e-Shahadat Order have also not been complied with. Learned counsel contends that the appellant is entitled to the benefit of doubt also which was his legal right.
On the other hand, learned counsel appearing on behalf of the High Court vehemently opposed the arguments of the learned counsel for the appellants contending that the appellant made hurry in decreeing the suit ex-parte against the defendant/judgment-debtor which is sufficient to infer that he obtained some ill-gotten benefits and he also violated the High Court Rules and Orders in performing the procedure for hearing of the suit. He further contends that the allegation leveled against the appellant are proved against him and two Hon'ble Judges of the High Court concurring with the Inquiry Officer who imposed a major penalty of dismissal from service. In this context, reliance has been placed on the case of Abdullah vs. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 3 others (1994 PLC (C.S.) 111) and Allah Yar vs. General Manager, Railways Headquarters Lahore and another (2001 S.C.M.R. 256).
We have heard the learned counsel for appellant as well as the learned counsel for the respondent and perused the record with their kind assistance. On 31.12.1990, the appellant was the Duty Judge at Gujranwala and no other Judicial Officer/Civil Judge was available due to winter vacation and the appellant was directed to entertain the matters during the vacations. The said suit titled; Ijaz Ahmad vs. Begum Rashida Ashraf was filed by the plaintiff and the appellant entrusted the same to his own Court, as not other Court was functioning on the said date. The entertainment of the suit by the appellant himself is neither an offence nor irregularity/ illegality.
The main allegation against the appellant is that he had decreed the suit within a shortest period of one month without performing the formalities of law. The suit was fixed on 9.1.1991 and notice was issued to the defendant for the said date, but the Process Server has reported that the defendant/respondent has refused to accept the service, therefore, the Court adjourned the case to 20.1.1991 and the publication was issued in the daily "Wafaq" for 20.1.1991. On the said date, no one entered appearance, therefore, ex-parte proceedings were initiated against the defendant/ respondent and after recording ex-parte evidence on 27.1.1991, the suit was decree ex-parte. The allegation against the appellant is that the defendant party was not residing at the given address, rather in those days the defendant was residing in United Kingdom. The record itself belies the stand of the prosecution, because the application for setting aside ex-parte decree had been filed by the defendant through Ch. Mahmood Bashir Virk, Advocate, on 9.2.1991, wherein it has been stated that the defendant was owner of Kothi No. 15 measuring 7 Kanals consisting of nine rooms situated at D.C. road Gujranwala. She is the joint owner of the said property with Muhammad Ikram, younger brother of his husband. She further stated in the application that her husband has left for United Kingdom where he was doing his own business and in the month of August, 1987, she also went to England to reside with her husband in Manchester and rented out this bungalow through his general attorney Ch. Ziafat Ali Khan Advocate to Dr. Zafar Chaudhry on monthly basis and her tenant Dr. Zafar Chaudhry stopped payment of rent due to one pretext or the other and the applicant/defendant on 25.9.1989 returned from England alongwith the other family members and stayed in some portion of the said bungalow and on 30.9.1989 she filed an ejectment-petition against Dr. Zafar Chaudhry, her tenant, which was pending at the time of filing of the civil suit against her. She admitted that the next date of hearing in the ejectment petition before the Rent Controller was fixed on 6.2.1991. She further stated in the application that the said Dr. Zafar threatened her to the dire consequences and she sought the help of the police for her protection and got recorded four FIRs Bearing Nos. 36/90 dated 9.2.1990, 4.4.1990 and 15.2.1990 at Police Station Civil Lines and FIR No. 1/91 dated 3.1.1991 and 7/91 dated 6.1.1991 at Police Station Peoples Colony, Gujranwala, which shows that at the time of institution of the civil suit, when the process was issued against her, she was residing in Pakistan. The allegation that she was not residing in Pakistan in those days is totally contrary to the record.
The allegation that the date of the suit i.e. 9.1.1991 was tampered with by the appellant is also not proved and the Inquiry Officer had opined that this allegation was not proved. In nutshell, the main allegation against the appellant is that he entertained the suit himself to his own Court and decreed the same within a period of one month, therefore, his case is covered within the purview of Section 3 (b) and (c) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, and he was declared to be guilty of misconduct and corrupt practices.
As to the allegation of decreeing the suit within a period of one month, it is not a case of misconduct or it was not the only suit which was decreed by him ex-parte or he was the only person/Judicial Officer who passed the ex-parte decree. This fact cannot be ignored that usually every Presiding Officer passes many ex-parte decrees in those cases where either the parties refuse to accept the service or despite service did not appear in Court. The law has not restrained the Courts to pass the ex-parte decree in such like circumstances. If the Court is competent to pass ex-parte decree, it cannot be termed that it was an act of misconduct or corruption. The prosecution has not been able to bring on record that the appellant has passed only the aforesaid ex-parte decree and all other decrees have been passed on merits after hearing the parties. Neither any material has been placed on record to establish that in the subordinate judiciary, he was the only presiding Officer who passes the ex-parte decrees.
There is also no evidence on record that while passing the expert decree within a period of one month, the Presiding Officer has secured illegal or ill-gotten gains from the plaintiff. No such allegation has been leveled against the appellant, only it has been inferred that since the decree was passed ex-parte within a period of one month, therefore, he passed the decree for securing illegal benefits and committed misconduct and corruption. This is only the inference which was drawn by the Inquiry Officer as well as the Authorized Officer. It is settled proposition of law that the principle of Qanun-e-Shahadat Order will apply to all executive, judicial and quasi-judicial proceedings. The application of the principle of Qanun-e-Shahadat Order/Evidence Act cannot be oversight especially by the Judicial Officers, while punishing or prejudicing his subordinate. If case against an accused is not proved beyond any shadow of doubt in accordance with provision of Qanun-e-Shahadat Order, he is liable to be acquitted. It is the basic principle of Islamic Jurisprudence that an innocent person cannot be punished even if alongwith him ten guilty are benefited.
The most important feature of the case is that the complaint was filed through special attorney Haji Muhammad Ashraf, the husband of the defendant Begum Rashida Ashraf. Neither his complaint was exhibited by the Inquiry Officer nor the special attorney or the defendant appeared before the Inquiry Officer or the Authorized Officer to substantiate the allegation leveled against the appellant. The Inquiry Officer recorded the evidence of four witnesses, the employees of the subordinate Judiciary. Muhammad Ismail PW-1, clerk of Court to the Civil Courts, appeared before the Inquiry Officer. He stated that the summons was issued by the appellant against the defendant for 9.1.1991 on the given address and the address in the summons was shown "D.C. road Gujranwala". According to him, this D.C. road was a pretty long road of 3-4 furlongs but it did not mean that the summons was issued on a wrong address. The summons were entrusted to Muhammad Yaqoob Process Server, who reported that the defendant had refused to accept the same and the report was verified by the Reader of the Court of Senior Civil Judge at that time. No action whatsoever has been taken if, for the sake of arguments, the report of the Process Server was maneuvered by the plaintiff and inquiry against him was initiated but the Process Server was exonerated in that inquiry and later on he was promoted. In this case, it was the Process Service who created the mischief by reporting that the defendant had refused to accept the service but he was not punished, the reasons best known to the Authority. The inquiry against the Process Server was conducted by Syed Akhtar Hussain Zahid, Civil Judge, who exonerated the said Process Server from the charge and the Senior Civil Judge also agreed with the report of the Inquiry Officer and inquiry against him was dropped and he was subsequently promoted as Bailiff. Muhammad Yaqoob, Process Server, while appearing before the Inquiry Officer as PW-2 admitted that the summons was entrusted to him for effecting service upon Begum Rashida Ashraf, who was the resident of D.C. road Gujranwala. He want to her bungalow, but she refused to accept the service and accordingly he reported. He admitted the report and signatures on the same. He has, in his examination-in-chief, nowhere stated that he was directed by the appellant/Presiding Officer to furnish report of refusal by the defendant. PW-3 Muhammad Akram Ahlmad in the Court of Senior Civil Judge has stated that it is the duty of the clerk of the Court of Senior Civil Judge to maintain the Register and enter the institution of the suits. It was never the duty of the Presiding Officer to maintain the Register and if any entry has not been made in the Register, it was the fault of the concerned clerk and not the Presiding Officer. PW-4 Mahmood Anwar Reader Sessions Court, Gujranwala, in his cross-examination admitted that according to Paishi Register on 9.1.1991, the case titled; Ijaz Ahmad vs. Begum Rashida Ashraf, the report to refuse the summons was received and substituted service through newspaper was ordered for 20.1.1991 and this date is clear and without any overwriting. He is also supported this version that it is not the duty of the Judge to record the entries in the institution of cases register and Paishi register. He has stated that the clerk of the Court used to record the entries in the institution of the cases register. He has admitted that on the page of 20.1.1991 of the Paishi register, the case titled; Ijaz Ahmad vs. Begum Rashida Ashraf, was posted at Serial No. 11 and on the page of 24.1.1991, the case titled above was posted at Serial No. 28 and on that date, fifty-one cases were fixed whereas 20.1.1991, sixty-two cases were fixed. He also admitted that on 27.1.1991 of the Paishi register, the said case was posted at Serial No. 49 whereas fifty-one cases were fixed that date.
From the minute scrutiny of evidence of these four PWs. no allegation of misconduct or corruption has been leveled or proved on record against the appellant. If, for the sake of arguments, on the very first day when the service was refused, the Court had issued process for substituted service, therefore, it cannot be termed or inferred that the Judge was in collusion with the plaintiff and he was in haste in decreeing the suit ex-parte. This factual position also cannot be ignored that on the application for setting aside ex-parte decree, the same was set aside and during this period, the suit was withdraw by the plaintiff and the property was sold out by Begum Rashida Ashraf through her husband in favour of Dr. Zafar Chaudhry for a consideration of Rs. 12,92,000/-.
From the above circumstances, we find that the applicant or the defendant had never been prejudiced or caused any financial loss by the Presiding Officer of the Court and the Inquiry Officer had relied upon the witnesses without going into details of reasons on the basis of which he arrived at the conclusion and the findings of the Inquiry Officer in the circumstances are contrary to the evidence available on record is not sustainable in law. Neither the complaint was exhibited nor the complainant was examined in evidence. Furthermore, the chance of cross-examination of such complainant by the accused/appellant had not been provided to him. Rule 7(1) of the Punjab Civil Servants (E & D) Rules, 1975, provides that on receipt of the record and the explanation of the accused referred to in the preceding true the Inquiry Officer or the Inquiry Committee, as the case may be, shall enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused, as may be considered necessary, the either party shall be entitled to cross-examine that witness and in case where the complainant did not appear in support of his allegation and he was not examined by the accused, the inquiry in such circumstances would be illegal and violative of the mandatory provisions of the Rules and one such inquiry, no punishment can be imposed upon the accused persons.
The complaint against the appellant was received by the District & Sessions Judge on 9.2.1991. The appellant was charge sheeted in the year 1999. He filed his reply to the charge-sheet and statement of allegations made on 3.6.1999. The Inquiry Officer completed the statements of the prosecution witnesses on 13.11.1999 and submitted his Inquiry report and thereafter the Authorized Officer issued show-cause notice to the appellant on 3.6.2000 and reply whereof was furnished by the appellant on 17.6.2000 to the Authorized Officer and final show cause notice was issued to him on 19.7.2000 by the Hon'ble Chief Justice and Judges of the High Court/the Authority. According to Rules 7(6) of the Punjab Civil Servants (E & D) Rules 1975, provides that the Inquiry Officer or the Inquiry committee, as the case may be, shall complete inquiry within a period of sixty days commencing from the last date of submission of the written defence by the accused and shall within ten days of the expiry of the said period of sixty days or within such further period as may be allowed by the authorized officer, submit his finding and grounds thereof to the authorized officer.
We cannot ignore that the application levelling allegations against the appellant was filed on 9.2.1991 and the disciplinary proceedings against him remained pending for about more than seven years. It was a hanging sword on the head of the appellant, who suffered mental agony as a result of these inquiry proceedings, therefore, this fact cannot be lost sight of that if a simple application levelling some false allegations is filed against a civil servants, he cannot have a sound sleep unless the application is decided in his favour. This aspect of the case has also not been attended to by the Authorized Officer or the competent Authority that pendency of the disciplinary proceedings is also a punishment and the appellant suffered this agony and mental torture for such a long period. It was the duty of the competent Authority and Authorized Officer to appoint the Inquiry Committee or the Inquiry Officer without wastage of time to thrash out the allegations leveled against the appellant, but it was kept pending for more than seven years without any sufficient reasons and there is no answer to this factual aspect of the case. Neither the learned counsel for the Prosecution could satisfy this Court nor advanced any reason for prolonged pendency of the inquiry proceedings. Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, provides a procedure for proceeding against a civil servant, whether these were mandatory or directory cannot be ignored and the application of the same is attracted to the present case. Rule 5 of the ibid. Rules provides that if on the basis of its own knowledge or information placed before it the Authority is of the opinion that there are sufficient grounds for proceeding against a civil servant, or where in a case in which Anti-Corruption Committee as defined in the Punjab Anti-Corruption Establishment Rules, 1974, has decided to take departmental action, it shall direct the Authorized Officer to proceed against such civil servant and where no Authorized Officer stands designated in respect of the accused civil servant, the authority shall simultaneously appoint an officer, senior in rank to the accused to perform the functions of an authorized officer.
There is nothing on the record to show that in accordance with the aforesaid provisions of Rules on receipt of the application-levelling allegation against the appellant, the Authorized Officer has been appointed immediately by the Authority. Furthermore, the charges framed against the appellant have not been supported by the facts on record, which could from sufficient basis to justify awarding of major penalty of termination of his service. Therefore, in the circumstances, the appellant is entitled for his reinstatement in service on the following grounds:--
(a) There is no evidence of corruption against the appellant nor any record is available inferring his intention to obtain illegal benefits from the plaintiff.
(b) If he has not adopted the procedure provided in the High Court Rules and Orders, it was only an omission and not an act of mis-conduct. Furthermore, the applicant or the defendant had never been prejudiced or caused any financial loss by the appellant.
(c) The evidence of four prosecution witnesses/officials of the Subordinate Judiciary has not in any way supported the allegation of the applicant/complainant. They deposed only with regard to the procedure of entertaining or disposal of the civil suits.
(d) The strict compliance of the provisions of Punjab Civil Servants (Efficiency & Discipline) Rules, 1975, have not been complied with the Inquiry Officer as well as the Authorized Officer.
(e) The observations made by the Hon'ble Judge of Lahore High Court, Mian Nazir Akhtar-J, as he then was, are not based on record or sufficient material. He has drawn the inferences only on the basis of the inquiry report and his own thinking. For instance, the learned Judge has observed that the appellant has not passed a short order in `Urdu' on 27.1.1991. It is suffice, to observe, that the appellant though not passed a short order on 27.1.1991 when he passed the judgment and decree, but he passed a detailed judgment in English. The learned Judge has further observed that the decision of the case was not without any motive. This observation is not supported by any other evidence. His further observation that the publication in daily "Wafaq" was made, which was not widely circulated among the people, suffice it to say that there is also a condition recognized by law that the citation be issued in any daily publication which is approved by the High Court. There is nothing in law or Rule that the daily "Wafaq" if approved for publication by the High Court, then the appellant has not committed any illegality. This Tribunal cannot support these observations in absence of strong and convincing reasons. No person without the evidence can be declared as corrupt person unless it is proved by cogent and sufficient evidence.
(f) The pendency of the disciplinary proceedings against the appellant for such a long time is punishment, mental agony and torture, therefore, the appellant is entitled for the benefit of the same.
(g) Neither the special attorney of Begum Rashida Ashraf nor she herself appeared before the Inquiry Officer on whose behalf charges have been leveled against the appellant and if the complainant fails to appear before the Inquiry Officer, it would certainly mean that the allegations have not been proved in accordance with law. Learned counsel for the respondent/prosecution has also not been able to answer or satisfy this Court regarding this legal defect of the case.
(h) Although, there was not time limit for the competent Authority to give its verdict under the Efficiency and Discipline Rules, however, it was not the intention of the law-makers that the agency of an aggrieved government servant should prolong for an indefinite period, in case the Authority failed to decide the matter within a reasonable time.
(A.A.) Appeal accepted.
PLJ 2006 Lahore 493
Present: Muhammad Muzammal Khan, J.
HASNAIN AHMAD SHAH--Petitioner
versus
IJAZ AHMAD SHAH etc.--Respondents
C.R. No. 2172 of 2005, decided on 20.10.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O.XXIII, R. 3--Qanun-e-Shahadat Order (10 of 1984), Arts. 163 & 129--Specific Relief Act (I of 1877), S. 12--Suit for specific performance of oral agreement to sell--Offer decided on oath by defendant--Plaintiff had not denied offer of decision on basis of statement which was required in two applications under Art. 163 of Qanun-e-Shahadat Order, 1984--Plaintiff did not deny his statement nor he moved application--Order sheet was signed by Advocate only for identification--Plaintiff having done all this on losing the case could not be permitted to turn back to say that statement of defendant was not recorded on oath--Presumption of correctness was attached to judicial proceeding--Plaintiff's contention that statement of defendant should have been recorded on oath was repelled. [Pp. 494, 495 & 496] A, B & C
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 163--Civil Procedure Code (V of 1908), O.XXIII, R. 3--Specific Relief Act (I of 1877), S. 12--Suit for specific performance of oral agreement to sell--Statement on oath by plaintiff and dismissal of suit--Question--Plaintiff in absence of documentary proof out of free will called for making statement on oath before Court that there was no agreement between parties suit be dismissed--Such factual aspect made Courts below felt satisfied about genuineness of compromise between parties and procedure adopted by trial Court--No illegality or irregularity having been pointed out revision was without merit and was dismissed by High Court. [Pp. 496 & 497] D & E
Mr. Muhammad Zaman Qureshi, Advocate.
Date of hearing: 20.10.2005.
Order
Instant civil revision assailed the judgments/decrees dated 4.10.2004 and 29.1.2005 passed by the learned Civil Judge and the learned Additional District Judge, Samundari, (Faisalabad) dismissing the petitioner's suit as well as appeal, respectively.
Succinctly, relevant facts are that the petitioner filed a suit for specific performance of an asserted oral agreement to sell whereby 7 Kanals of land was allegedly agreed to be sold by Respondent No. 1, his brother, for an amount of Rs. 1,80,000/-. The petitioner pleaded that Respondent No. 1 had received an amount of Rs. 55,000/- as earnest money and promised to get the mutation of the suit land sanctioned in his favour from the revenue officer on the next day but he did not appear before the Revenue Officer, inspite of the fact that petitioner had been willing/ready to perform his part of contract of payment of balance sale price of Rs. 1,25,000/-.
The respondents being defendants in the suit contested the same by filing their respective written statements. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The petitioner initially on 25.11.2002 filed an application under Article 163 of Qanun-e-Shahadat Order, 1984 requiring his brother, Respondent No. 1 to given an oath on the Holy Quran that bargain as asserted in the plaint was not struck and if he gives such oath, his suit may be dismissed. Alike application was repeated by the petitioner on 5.6.2003 and Respondent No. 1 each time refused to give the oath, required by the petitioner. Thereafter on 25.9.2004 the petitioner made a statement before the trial Court offering that if Respondent No. 1 states before the Court that bargain of sale was not struck between the parties, his suit may be dismissed. In response to statement by the petitioner, Respondent No. 1 appeared before the trial Court on 4.10.2004 and stated that suit by the petitioner is false and claim of Respondent No. 2 is correct. The learned trial Judge who was seized of the matter, acting on statements of the parties dismissed the suit of the petitioner vide his judgment/decree dated 4.10.2004.
The petitioner aggrieved of the decision of the trial Court dated 4.4.2004 filed an appeal before the learned Additional District Judge but remained unsuccessful as the same was dismissed through the appellate judgment/decree dated 29.1.2005. He has now filed the instant revision petition for adjustment of concurrent judgments/decrees of the two Courts belows.
The learned counsel for the petitioner submitted that the trial Court after rejection of two applications by the petitioner under Article 163 of Qanoon-e-Shahadat Order, 1984 had no occasion to have resort to the same exercise purpose especially when the suit was already fixed for recording of evidence. According to him, controversy between the parties should have been resolved on merit, instead of its decision on statements of the parties. It was further submitted that the suit was being adjourned awaiting decision by the Appellate Court and the same being not fixed for hearing trial Court had no jurisdiction to record statements of the parties. It was further emphasized that the trial Court acted in vacuum in not recording the offer/acceptance of the parties about the decision of the suit and that, statement of Respondent No. 1 was to be recorded on oath of the Holy Quran but dismissal of suit without such course being adopted, was not lawful. The learned counsel for the petitioner further emphasized that the procedure adopted by the trial Court for decision of the suit was not covered by Order XXIII, Rule 3 CPC, or by any other provision of law, hence, the impugned judgments/decrees deserved reversal.
I have minutely considered the arguments of the learned counsel for the petitioner and have examined the record appended herewith. The petitioner had not denied his offer dated 25.9.2004 of decision of his suit on the basis of statement by Respondent No. 1 which was also in line with his requirement in his two earlier applications under Article 163 of the Qanoon-e-Shahadat Order, 1984. The petitioner also did not refute before any of the Courts below that his statement dated 25.9.2004 was not correctly recorded. At the time of recording of statement of Respondent No. 1 on 3.10.2004 after about 8/9 days, the petitioner alongwith his counsel was present in the Court and he signed the statement of Respondent No. 1/order of the trial Court on the margin but did not object to the manner of recording of statement of his brother (Respondent No. 1). The petitioner, thereafter filed an appeal before the learned Addl. District Judge and again did not dispute his statement, as it stood and his only objection was that he had required the Respondent No. 1 to make the statement on oath of the Holy Qur'an. Now the petitioner having not reacted before the trial Court on 25.9.2004, the day of his own statement, slept for all 8/9 days and did not move application resiling or refuting his offer and then again accepting mode of statement by Respondent No. 1 on 4.10.2004 when his counsel was also present in Court did raise any object. After all this, he cannot be permitted to turn back to say that statement of Respondent No. 1 was not recorded on oath of the Holy Qur'an or getting offer/acceptance of parties for decision and that too, after loosing the case. Under law presumption of correctness/regularity is attached to judicial proceedings/orders, recorded/undertaken in routine/due course, hence, in view of the above noted conduct of the petitioner of remaining silent on each occasion. I am not ready to accept his after thought defence of not making the statement on the Holy Qur'an. The petitioner has admitted even before this Court, his signatures on the margin of both the interim orders of the trial Court dated 25.9.2004 and 4.10.2004 in presence of which it is immaterial that beneath his signatures, some other Advocate signed who was not his counsel. Such signatures are normally obtained for identification purposes, hence, in view of the admission of the petitioner of his signatures it is immaterial that his counsel did not sign on the order sheet dated 25.9.2004.
Stance of the petitioner that the procedure adopted by the trial Court is not covered by Rule 3 of Order XXIII CPC has also no worth in it as the petitioner out of his own free will/volition called upon the Respondent No. 1 to make the statement before the Court that if there was no agreement between the parties, his suit be dismissed. Decision on the basis thereof, was an adjustment of the suit through a lawful agreement/compromise, covered by above referred provision of Civil Procedure Code. Reference in this behalf can additionally be made to the judgments in the cases of Madan Mohan Gargh versus Munna Lal and others (AIR 1928 Allah Abad 497), and Muhammad Ijaz and 3 others versus M. Khurshid Malik and 4 others (PLJ 1986 Lahore 395).
Under Order XXIII, Rule 3 CPC, Courts have to satisfy their judicial conscience about lawfulness of compromise inter parties. The petitioner in view of his claim being based on an oral agreement to sell, on account of absence of any documentary proof in form of agreement of receipt etc., had been persistently calling upon the Respondent No. 1 to admit or deny his narrations in the plaint. Earlier calls through written applications for making statement on oath of the Holy Quran were not accepted by Respondent No. 1 and for the third time, call by the petitioner to make statement without oath on the Holy Qur'an, appears to be factually correct because after two denials by Respondent No. 1 there was no occasion to repeat the same offer for the third time. In view of this factual aspect, both the Courts felt satisfied about the genuineness of compromise between the parties, hence, rightly acted on it to dismiss the suit of the petitioner. Even before this Court no argument about lawfulness or otherwise of this arrangement inter parties was addressed.
For the reasons noted above, none of the Courts below committed any illegality/irregularity amenable to revisional jurisdiction of this Court and the impugned judgment/decrees are not tainted with any legal defect, hence, this revision petition having no merit in it, is dismissed in limine.
(R.A.) Petition dismissed
PLJ 2006 Lahore 497
Present: Muhammad Muzammal Khan, J.
BASHEER AHMAD--Petitioner
versus
FAZAL DIN--Respondent
C.R. No. 2574 of 2000, heard on 14.2.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O.II, R. 2--Deceased gave an oath on Holy Qur'an was sufficient to conclude that he was a man of unsound mind--Validity--Petitioner could not be permitted to turn back to pick fake defect in suit which did not come up for scrutiny before First Appellate Court due to requirement of petitioner for decision of the case on oath by deceased--Appellate Court did not commit any illegality irregularity in dismissing the petitioner's appeal--Petition dismissed. [Pp. 498 & 499] A & B
Mr. Riaz Ahmad Kasuri, Advocate for Petitioner.
Mr. Muhammad Ijaz Ahmad Lashari, Advocate for Respondent.
Date of hearing: 14.2.2006.
Judgment
Instant civil revision assailed the judgments/decrees dated 27.6.1997 and 17.10.2000 passed by the learned Civil Judge and the learned Additional District Judge Kasur, whereby suit filed by the predecessor-in-interest of the respondents, for possession was decreed and appeal of the petitioner was dismissed, respectively.
Succinctly, relevant facts are that Fazal Din deceased, predecessor-in-interest of the respondents, filed a suit for possession of land measuring 6 Kanals 14 Marlas, duly detailed in the plaint with permanent injunction as consequential relief. It was pleaded in the plaint that the petitioner was tenant of the suit land and he with a view to avoid his ejectment, forged the agreement to sell dated 2.10.1984, in his favour. It was further averred that the petitioner filed a suit for specific performance of the agreement against Fazal Din deceased which was dismissed on 2.3.1991, thus he has no right to remain in possession of the land owned by Fazal Din. A decree for permanent injunction was also prayed to the effect that the petitioner be permanently restrained from alienating the suit land or changing its nature by raising construction.
The petitioner being defendant in the suit, contested the same by filing his written statement wherein he pleaded that he is in possession of the suit land under the agreement to sell executed by Fazal Din. The petitioner also averred that he has spent an amount of Rs. 30,000/- on development of the land. Certain preliminary objections regarding payment of Court fee and lack of jurisdiction were also raised in the written statement. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge who was seized of the matter, after doing the needful, decreed the suit of Fazal Din predecessor-in-interest vide his judgment and decree dated 27.6.1997.
The petitioner aggrieved of the decision, filed an appeal before the learned Additional District Judge where he offered that in case Fazal Din deceased makes a statement on oath of the Holy Qur'an that he did not enter into a bargain of sale with the petitioner and he did not execute the agreement to sell, his appeal may be dismissed. This offer of the petitioner was accepted by the deceased Fazal Din and statement of the both the parties were recorded by the Court on 17.10.2000.
Fazal Din deceased according to the offer of the petitioner stated on oath of the Holy Qur'an that he did not enter into any bargain with the petitioner and had not executed any agreement to sell in his favour. After oath on the Holy Qur'an, the Appellate Court again recorded statement of the petitioner which was counter signed by the learned counsel for the parties, expressing his satisfaction about oath administered and thereafter Appellate Court dismissed the appeal of the petitioner vide order dated 17.10.2000. The petitioner, thereafter, filed instant civil revision, which was admitted to regular hearing and after completion of record has now been fixed for hearing. Respondents in response to notice by this Court, were represented through their counsel Mr. Muhammad Ijaz Ahmad Lashari, Advocate.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Submissions of the learned counsel for the petitioner that according to showings of the respondents themselves, their predecessor-in-interest (Fazal Din) was a man of un-sound mind and thus could not file suit in his own name, without next friend and that respondent's suit for possession was barred under Order II, Rule 2 CPC, as earlier suit by Fazal Din for declaration of his ownership over the suit land was dismissed, have not impressed me for multiple reasons.
The petitioner did not raise any such objection in his written statement that Fazal Din was a man of un-sound mind and could not file suit in his own name under Order 32 CPC. On the other hand, Fazal Din deceased was not adjudged to be of un-sound mind by any competent Court, hence a bald statement that Fazal Din was not mentally fit to distinguish between his good and bad was not enough to hold that he was a man of un-sound mind. Above all, the petitioner himself called upon Fazal Din deceased, pending appeal, to give an oath on the Holy Qur'an was sufficient to conclude that he was not a man of un-sound mind. Declaratory suit filed by Fazal Din, was dismissed on the ground that he was in position to seek further relief of possession and thus was barred under Section 42 of the Specific Relief Act, 1887. Fazal Din deceased after filing instant suit for possession, withdrew his civil revision emanating out of his declaratory suit, hence bar as contained in Order-II, Rule-2 was not attracted, as his earlier suit was not maintainable. Reference is made to the judgments in the cases of Ghulam Nabi and others versus Seth Muhammad Yaqoob and others (PLD 1983 Supreme Court 344), Saeed Ahmad and 3 others versus Tanveer Ahmad and another (1990 MLD 788), Ejaz Hussain versus Abbas Ali (1993 CLC 2478) and Khaleeq Ahmad versus Tahir Saeed etc. (1998 U.C. 740).
The petitioner has not disputed his offer to deceased Fazal Din for giving oath on the Holy Qur'an regarding existence or otherwise of the transaction/agreement as two statements in this behalf were duly signed by him and his counsel. In presence of statements of the parties dated 17.10.2000 the petitioner cannot be permitted to turn back to pick fake defects in the suit which did not come up for scrutiny before the First Appellate Court, due to requirement of the petitioner, for decision of the case on oath by the deceased.
For the reasons noted above, Appellate Court committed no illegality/irregularity in dismissing the petitioner's appeal, thus instant petition being devoid of any merit, is dismissed, with no order as to costs.
(R.A.) Petition dismissed
PLJ 2006 Lahore 499
Present: Asif Saeed Khan Khosa, J.
MUHAMMAD RAMZAN--Petitioner
versus
STATION HOUSE OFFICER P.S. NOSHEHRA VIRKAN DISTT. GUJRANWALA and 6 others--Respondents
W.P. No. 1389 of 2006, heard on 24.2.2006.
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----S. 16--Constitution of Pakistan, 1973, Art. 199--Allegation of enticing away--Suit for dissolution of marriage had been instituted prior to lodging FIR--Enticee had denied allegation of her enticing away--Alleged enticee happened to be star witness of prosecution and she did not support prosecution's case that there was no likelihood of accused and co-accused being convicted of the offence at end of the day--Matrimonial issue had been converted by complainant party into criminal case so as to bring weight of criminal law to bear upon alleged enticee in order to break resolve and to force her back into matrimonial fold--Such utilization of criminal process was found by High Court to be nothing but abuse of process of law which could not be allowed--Petition allowed. [P. 501] A
Mr. Imran Yousaf, Advocate on behalf of Mr. Muhammad Ahsan Bhoon, Advocate for Petitioner.
Syed Husnain Kazmi, Assistant Advocate-General for Respondent.
Respondent No. 2 in person.
Nemo for Respondent No. 3.
Respondents Nos. 4 to 7 in person.
Date of hearing: 24.2.2006.
Judgment
Through this writ petition the petitioner has sought quashing of FIR No. 52 registered at Police Station Noshera Virkan, District Gujranwala on 2.2.2006 for an offence under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The said FIR has been lodged by Respondent No. 2 in respect of an alleged enticing away of his sister namely Mst. Husna Bano (Respondent No. 4 herein) by the present petitioner and Respondents Nos. 5 to 7.
(R.A.) Petition allowed.
PLJ 2006 Lahore 501
Present: Ch. Ijaz Ahmad, J.
MUHAMMAD ASIF IFTIKHAR--Petitioner
versus
ZILA NAZIM, KASUR (EX-CHAIRMAN) ZILA COUNCIL, KASUR and 4 others--Respondents
W.P. No. 3973 of 2005, decided on 17.3.2005.
Administration of Justice--
----State functionaries are expected to act fairly and justly in manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise as per law laid down by Supreme Court. [P. 505] I
Civil Procedure Code, 1908 (V of 1908)--
----Principles of--It is settled principle of law that principles of C.P.C. are applicable in Constitutional proceedings as per law laid down by Supreme Court in Hussain Bakhsh's case PLD 1970 SC 1. [P. 504] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 11--Maintainability--Second writ petition qua the same subject-matter and relief is not maintainable by Supreme Court. [P. 504] B
Constitution of Pakistan, 1973--
----Art. 201--Virtue of--Direction of High Court is binding on each and every organ of the state by virtue of Art. 201 of Constitution--It is also settled principle of law that Constitution is a social binding contract with regard to four pillars of the society; (i) Legislature, (ii) Executive, (iii) Judiciary, (iv) People of Pakistan. [Pp. 504 & 505] C
Constitution of Pakistan, 1973--
----Art. 4--Mandate of--According to mandate of Art. 4 of Constitution it is duty and obligation of the public functionaries to decide the applications of the citizens without fear favour and nepotism. [P. 505] D
Constitution of Pakistan, 1973--
----Art. 5(2)--Terms of mandate of Constitution--No body is above the Constitution in terms of the mandate of the Constitution vide Art. 5(2) of Constitution as per law laid down by Supreme Court in Ch. Zahoor Elahi's case (PLD 1975 SC 383)--It is also settled principle of law that no body should be penalized by inaction of the public functionaries as per law laid down by High Court. [P. 505] E & F
Duty of Court--
----It is not only duty of Court to provide justice to the people of Pakistan but it is also duty of every organ and functionary to provide justice by discharging his duties in accordance with law without fear, favour and nepotism as per law laid down by High Court. [P. 505] K
General Clauses Act, 1897 (X of 1897)--
----S. 24-A--Public functionaries are receiving salaries from the public exchequer for the purpose to discharge their duties in terms of the law--Public functionaries failed to proceed and decided cases of the citizens on account of which legislature is S. 24-A of General Clauses Act according to which it is duty and obligation of the public functionaries to decide applications of citizens in accordance with law with reasons within reasonable time. [P. 505] G
Interpretation of Administration--
----Awareness has been given to the world 14 hundred years ago by Almighty Allah in Holy Book of Qur'an in Surah Rehman warned human beings not to disturb balance in any sphere of life otherwise destruction is must as observed by High Court--Held: We have to live as a nation then every body has to work within the framework of law. [P. 505] H
Interpretation of Justice--
----In the interest of justice and fair play, let a copy of writ petition be sent to respondent who is directed to decide application of the petitioner preferably with three months after receiving order of High Court after providing proper hearing to all concerned including petitioner and any other person who would be aggrieved by his order. [P. 506] L
Interpretation of Statute--
----Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in Pakistan including even judicial principles law laid down by Supreme Court in Ch. Zahoor Elahi vs. Federation of Pakistan and another (PLJ 1975 SC 75). [P. 505] J
Mr. Manzoor Qadir, Advocate for Petitioner.
Mr. Muhammad Hanif Khatana, Addl. Advocate General entered appearance on Court's call.
Date of hearing: 17.3.2005.
Order
The brief facts out of which the present writ petition arises are that Respondent No. 1 issued advertisement in the Daily Pakistan on 14.10.2000 for construction of a Bus/Wagon Stand at Allahabad, Tehsil Chunain, District Kasur. The petitioner's brother approached Respondent No. 1 after perusing the contents of the advertisement and offered him for land without any costs, which was accepted by Respondent No. 1 as is evident from letter dated 16.6.2001 issued by Respondent No. 1 to Ch. Muhammad Sarwar brother of the petitioner. The aforesaid brother of the petitioner and other family members had gifted the land for the said purpose measuring 4 Kanals which was accepted by the respondents. The brother of the petitioner and his other share-holders have transferred the total land measuring 5-Kanals 2-Marlas. Subsequently demanded by Respondent No. 1 and Mutation No. 10389 and 10388 was sanctioned in favour of Respondent No. 1 by the revenue officer. The brother of the petitioner after donation of the land approached Respondent No. 1 and prayed Respondent No. 1 for the construction of Bus/Wagon Stand inquestion. Respondent No. 1 prepared the estimate through Engineering Staff. The Engineering Staff had estimated costs of the project amounting to Rs. 26,00,000/-. Respondent No. 1 did not construct the Bus/Wagon Stand on account of non-availability of funds. The petitioner's brother also requested higher authorities of Respondent No. 1 to construct the Bus Stand in the land inquestion but the respondents did not take any action. The brother of the petitioner being aggrieved filed Constitutional Petition No. 11500/2002, with the following prayer:
"In the light of the submissions made above, it is most respectfully prayed that the respondents may very kindly be ordered to take the active and necessary steps for the construction of the said Bus/Wagon Stand as early as possible."
The said writ petition was disposed of by this Court vide order dated 1.7.2002 and directed Respondent No. 3 to decide the application of the brother of the petitioner in accordance with law. Respondent No. 3 did not decide the same and sent the same to Respondent No. 4 who also did not take any action. The petitioner being aggrieved alongwith other relatives submitted application before Respondent No. 3, who did not decide the same till date. The petitioner being aggrieved filed this Constitutional petition.
The learned counsel of the petitioner submits that it is the duty and obligation of the respondents to decide the application of the petitioner in terms of the direction of this Court as the direction of this Court is binding on each and every organ of the State by virtue of Article 201 of the Constitution. He further submits that petitioner and his other family members are penalized by the inaction of the public functionaries as the petitioner and his other family members had gifted the land inquestion in the larger interest of the people of the area but the respondents did not care to honour their commitment. He further submits that the petitioner is ready to construct the Bus/Wagon Stand by his own resources subject to the condition that the same may be given to the petitioner on lease in accordance with law. He further submits that in case the respondents are not interested to construct the Bus/Wagon Stand over the land inquestion then the respondents be directed to hand over the land of the petitioner back to the petitioner as the respondents have not utilized the land for the purpose for which the petitioner has gifted the land to the respondents.
Mr. Muhammad Hanif Khatana, Addl. Advocate General entered appearance on Court's call, he submits that writ petition is not maintainable.
I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record.
It is settled principle of law that principles of C.P.C. are applicable in Constitutional proceedings as per law laid down by the Honourable Supreme Court in Hussain Bakhsh's case (PLD 1970 SC 1). It is settled principle of law that second writ petition qua the same subject-matter and relief is not maintainable in view of Section 11 of C.P.C. as per law laid down by the Honourable Supreme Court in Pir Bakhsh vs. The Chairman Allotment Committee (PLD 1987 SC 145). It is also settled principle of law that direction of this Court is binding on each and every organ of the State by virtue of Article 201 of the Constitution. It is also settled principle of law that Constitution is a social binding contract with regard to the four pillars of the society:--
(i) Legislature;
(ii) Executive;
(iii) Judiciary;
(iv) People of Pakistan.
According to the mandate of Article 4 of the Constitution it is the duty and obligation of the public functionaries to decide the applications of the citizens without fear, favour and nepotism. It is also settled principle of law that no body is above the Constitution in terms of the mandate of the Constitution vide Article 5(2) of the Constitution as per law laid down by the Honourable Supreme Court in Ch. Zahoor Elahi's case (PLD 1975 SC 383). It is also settled principle of law that no body should be penalized by the inaction of the public functionaries as per law laid down by this Court in Ahmad Lateef Qureshi vs. Controller of Examination Board of Intermediate, Lahore (PLD 1994 Lahore 3). It is admitted fact that public functionaries are receiving salaries from the Public Exchequer for the purpose to discharge their duties in terms of the law. The public functionaries failed to proceed and decide the cases of the citizens on account of which the Legislature is compelled by the aforesaid circumstances to add Section 24-A of the General Clauses Act according to which it is duty and obligation of the public functionaries to decide the applications of the citizens in accordance with law with reasons within reasonable time as per law laid down by the Honourable Supreme Court in M/s. Airport Support Service vs. The Airport Manager, Karachi (1998 SCMR 2268). It is also admitted fact that awareness has been given to the world 14 hundred years ago by Almighty Allah in the Holy Book of Quran in Surah Rehman warned the human beings not to disturb the balance in any sphere of life otherwise destruction is must as observed by this Court in Mrs. Anjum Irfan vs. Lahore Development Authority & others (PLD 2002 Lahore 555). In case we have to live as a nation then every body has to work within the framework of law. Lord Denning in Breen's case (1971) 1 All E.R. 1148) says, "The giving of reasons is one of fundamentals of good administration." It is also settled principle of law that state functionaries are expected to act fairly and justly in manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise as per law laid down by the Honourable Supreme Court in Shaukat Ali and others vs. Government of Pakistan and others (PLD 1997 S.C. 342). It is also settled principle of law that; "Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the Superior Courts as per law laid down by the Honourable Supreme Court in Ch. Zahoor Elahi vs. Federation of Pakistan and another (PLJ 1975 SC 75). Laws are made not to make them merely on the statute book which are framed to act upon them which is in consonance with the Holy Qur'an as enshrined in Sura Baqra. It is not only the duty of the Courts to provide justice to the people of Pakistan but it is also the duty of every organ and functionary to provide justice by discharging his/its duties in accordance with law without fear, favour and nepotism as per law laid down by this Court in judgment dated 23.2.2005 in Writ Petition No. 2778/2005. In somewhat similar circumstances, after considering all the case law on the subject, this Court has observed in Ghulam Murtaza vs. Headmaster Ch. Inayatullah and others (1998 PLC (C.S.) 274) in the following terms:
"Non-observance by the functionaries of the dictum laid down by the Supreme Court of Pakistan is violation of Article 189 of the Constitution. If all the prevailing circumstances i.e. judgments of the Supreme Court, action of the authorities and attitude of the public representatives put in juxtaposition, then it becomes crystal clear that the legislators and executive have refused to give due respect to the dictum of Supreme Court of Pakistan; which is not congenial and conducive for the existence of the country, to run the State smoothly, mutual cooperation, respect and understanding. This situation will create chaos. So, in a word, it can be safely concluded that each organ must work within its limits prescribed by the Constitution and law."
However, in the interest of justice and fair play, let a copy of the writ petition be sent to Respondent No. 3, who is directed to decide the application of the petitioner preferably within three months after receiving the order of this Court after providing proper hearing to all the concerned including the petitioner and any other person, who would be aggrieved by his order. The petitioner is directed to appear before Respondent No. 3 in his office at 11.00 a.m. on 28.3.2005, who is directed to decide the application of the petitioner preferably within three months till 28.6.2005 in terms of the aforesaid direction either himself or send the same to the competent authority, who is directed to decide the same in terms of the aforesaid direction. He is further directed to submit his report to the Deputy Registrar Judicial of this Court within the stipulated period.
With these observations the writ petition is disposed of. Copy Dasti on payment of usual charges.
(R.A.) Petition disposed of.
PLJ 2006 Lahore 507
Present: Syed Shabbar Raza Rizvi, J.
TARIQ SIDDIQUE KHOKAR and 5 others--Petitioners
versus
LEARNED ADDITIONAL SESSIONS JUDGE, LAHORE and 3 others--Respondents
W.P. No. 1215 of 2006, decided on 13.2.2006.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 154--Registration of F.I.R.--Legal requirements--Every information relating to commission of a cognizable offence whether given in writing or reduced to writing shall be signed by person giving it and substance shall be entered into a book to be kept by such office in such form as Provincial Government can prescribed in such behalf--Simple reading of S. 154 Cr.P.C. required registration into book known as Daily Diary. [P. 508] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 157--Mandatorily bounden duty of Police--Registeration of F.I.R.--U/S. 157 Cr.P.C., Police Officer has to send his report to Magistrate, if concerned Police Officer does not want to investigate a case for reason of insufficient ground--Held: Investigating Officer has discretion to decline investigation u/S. 157 Cr.P.C. if he considers that there was no evidence or ground to initiate investigation. [P. 509] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 154--Obligatory in nature--S.H.O. had no option but to record statement of complainant in relevant register, if it discloses commission of a cognizable offence. [P. 509] D
F.I.R.--
----Correct or incorrect--Question of--Whether information is correct or incorrect depend on investigation subsequent to registration of F.I.R. [P. 509] C
Police Rules, 1934--
----R. 25.2(3)--Criminal Procedure Code (V of 1898), Ss. 156 & 157--S.H.O. was directed to register an FIR, if information reported to SHO by respondent disclosed commission of a cognizable offence--SHO was further directed to investigate same as required u/S. 156 Cr.P.C. to be read Rule 25.2(3) of the Police Rules, 1934 or proceed u/S. 157 Cr.P.C. as the case may be--Petition disposed of. [Pp. 509 & 510] E
Kh. A. Tariq Rahim, Advocate for Petitioners.
Malik Muhammad Jamil Awan, Advocate for Respondents.
Date of hearing; 13.2.2006.
Order
The petitioners have filed this petition to call in question order of the learned Addl. Sessions Judge, Lahore dated 4.2.2006. The learned Addl. Sessions Judge directed SHO to register a case if legal requirements are fulfilled. The main objection is on para-2 of the impugned order, which is as under:
"Be that as it may, the petitioner is directed to approach concerned SHO with written application regarding his grievance and SHO concerned while acting in accordance with law shall register a case if the contents of the application disclose a cognizable offence."
According to the learned counsel for the petitioners, the above order is neither a speaking order nor consistent with the law. According to him, SHO is first required to enter substance of the complaint in a register and then register F.I.R; this legal requirement is missing in the impugned order.
The relevant law on the subject is Section 154, Cr.P.C. According to the said section, every information relating to the commission of a cognizable offence whether given in writing or reduced to writing shall be signed by the person giving it and the substance thereof shall be entered into a book to be kept by such officer in such form as the Provincial Government may prescribed in this behalf. Simple reading of Section 154, Cr.P.C. requires registration of FIR and substance of the complaint to be entered into a book known as Daily Diary (NLR 2000 Criminal 1). The condition is that such information must disclose commission of a cognizable offence. Whether the complaint is false or true, it is not relevant to know that action is taken either under Section 156 or 157, Cr.P.C. The learned Addl. Sessions Judge directed SHO in the impugned order that he would register a case if the contents of the application disclosed a cognizable offence. Therefore, I do not think that the impugned order is inconsistent with Section 154, Cr.P.C.
The learned counsel has referred, particularly, PLD 1990 Lahore 428. If this judgment is read in conjunction with Section 154, Cr.P.C. and Rule 24.1 of the Police Rules, 1934, it becomes clear that every information regarding commission of a cognizable offence has to be reduced into writing. That means registration of an FIR. The substance of the FIR shall be entered into police station daily diary. Both these two acts have to be done together. If the information provided or disclosed no commission of a cognizable offence, the concerned police officer would proceed as contemplated under Section 157, Cr.P.C, otherwise he would proceed as envisaged under Section 156, Cr.P.C. to be read with Rule 25.2(3) of the Police Rules, 1934.
According to the Hon'ble Supreme Court, under Section 154, Cr.P.C. it is mandatorily bounden duty of the police officer to register an FIR of a cognizable offence. Under Section 157, Cr.P.C. he has to send his report to the Magistrate if he does not want to investigate a case for reason of insufficient grounds. This decision of the Hon'ble Supreme Court clearly requires registration of a case if commission of a cognizable offence is reported. The SHO/I.O. has discretion to decline investigation under Section 157, Cr.P.C. if he considers that there is no evidence or ground to initiate the investigation. Therefore, registration of a case under Section 154, Cr.P.C. and non-investigation under Section 157, Cr.P.C. are two distinct actions. In the first, if a complaint discloses commission of a cognizable offence, the police officer has no discretion but in the second situation, he has discretion to refuse investigation (Syed Saeed Muhammad Shah vs. State, 1993 SCMR 550). A Full Bench of this Court also held that Section 154, Cr.P.C. leaves no doubt that it is incumbent upon the officer incharge of the police station to record the first information report (State vs. Zulfiqar Ali Bhutto, PLD 1978 Lahore 523). His lordship, Mr. Justice Mian Allah Nawaz, after reviewing the previous case law on the subject produced a comprehensive judgment on the subject. Referring to M. Anwar's case (PLD 1972 Lahore 493), his Lordship held that correct or true implementation is not necessary to record the FIR. This question, whether the information/complaint is correct or incorrect, depends on the investigation subsequent to registration of the FIR. His Lordship further observed that Section 154 Cr.P.C. is obligatory in nature and SHO has no option but to record the statement of the complainant in the relevant register, if it discloses commission of a cognizable offence. If he finds that the occurrence reported, does not disclose any cognizable offence, he will record a report under Section 155, Cr.P.C. The omission to do so is liable to penal as well as disciplinary action under the relevant law and rules.
It may be pointed out that a register in which F.I.R. is recorded is known as the First Information Report Register. A register in which substance of the First Information Report is to be entered is known as the Station Diary (Roznamcha). For further details, Rule 22.45 of the Police Rules, 1934 is referred to. How to enter a complaint in the First Information Report Register, Rules 24.1 and 24.5 of the Police Rules, 1934 are referred to.
7A. In view of the above discussion, the SHO is directed to register an FIR, if the information reported to him by the Respondent No. 2, disclosed commission of a cognizable offence. The SHO/I.O. is further directed to investigate the same as required under Section 156, Cr.P.C. to be read with Rule 25.2(3) of the Police Rules, 1934, or proceed under Section 157, Cr.P.C., as the case may be. With the above observations, this writ petition is disposed of.
(R.A.) Petition disposed of.
PLJ 2006 Lahore 510 (DB) (Banking Jurisdiction)
Present: Mian Saqib Nisar and Sh. Azmat Saeed, JJ.
UNION LEASING LIMITED--Appellant
versus
PAKISTAN INDUSTRIAL CREDIT AND INVESTMENT CORPORATION Ltd. and 8 others--Respondents
F.A.O. 272 of 2004, heard on 15.12.2004.
(i) Financial Institution (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 15--Execution of decree--Dismissal of objection to attachment, assailed--Objections to attachment were wrongly dismissed by Executing Court on the ground that decree passed in favour of respondents was earlier in time than that of appellant and that decree in favour of respondent was passed by superior forum i.e. High Court as compared to decree passed in favour of appellant by Banking Court, therefore, respondent, had preferential right to seek satisfaction of decree by sale of property in question--Property in question having been mortgaged with petitioner, view of executing Court that respondent; decree wherein owner of such property had given personal guarantee for repayment of loan, was erroneous and illegal--Rights of mortgagees should have priority in cases where owner of property has also stood as simple surety/guarantee, but no mortgage was involved--Reasoning of Executive Court that decree passed in favour of respondent was by a higher forum was also of no substance. [Pp. 513 & 514] A
(ii) Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 15--Mortgage--Validity--Mortgage in favour of appellant on the ground that memorandum of title documents has been duly executed by owner of property in question--In addition, documents of title bear stamp of Borrower Company and was signed by Chief Executive thereof, who is also husband of owner lady--Original documents were in possession of appellant/mortgagee with intention to create equitable mortgage--Requirement of S. 58(F) of Transfer of Property Act, 1882 were thus fully satisfied--Owner of property had never denied in suit her status as mortgagor which had been instituted against here-by appellant and which stood decreed--Validity of mortgage, thus stood proved. [P. 514] B
(iii) Transfer of Property Act, 1882 (IV of 1882)--
----S. 58--Mortgage--Effect--Consequences--Mortgage in terms of S. 58 of Transfer of Property Act, creates, specific interest in immovable property providing security for performance of a duty or payment of debt as against none, in favour of person who only is surety or guarantor simplicitor--Such interest would have full legal effect, and consequences and would be enforceable as a right--Such rights having been conferred by special law upon mortgagee of property, cannot be nullified and defeated for the reason that another financial institution has also filed suit against common defendant/judgment debtor in capacity as simple surety/guarantor and has procured decree against him--Such decree has to give way to rights of mortgagee/decree holder under general as also the special law and should await execution till such time, the right of mortgagee under law as also under decree were first satisfied--Such aspect of case having not been kept into view by Executing Court its order in question, was set aside--In execution of another decree, Court cannot attach mortgage property causing prejudice to rights of mortgagee through process of execution. [P. 514 & 515] C, D & E
Miss Ayesha Malik, Advocate for Appellant.
Mr. Muhammad Raza Qureshi, Advocate for Respondents.
Date of hearing : 15.12.2004.
Judgment
Mian Saqib Nisar, J.--Through the impugned order dated 21.9.2004, the learned Banking Court, presided over by the Honourable Judge of this Court, has dismissed the objection petition, filed by the appellant, challenging the order of attachment of "the property", passed in execution process of a decree in favour of the PICIC.
The brief facts of the case are, that Mst. Firdous Chughtai, admittedly is the owner of the house Bearing No. 63-Z LCCHS (hereinafter called "the property"). She has mortgaged the property in favour of the Union Leasing Ltd., the appellant for the purpose of securing the finance facility allowed to M/s. King Tyres Ltd, and in this regard, MODT dated 18.3.1999 was duly executed, coupled with physical deposit of the title documents of the property with the appellant. In addition thereto, the mortgage was acknowledged, through the charge registered with the SCCP and form X in this behalf is on the record.
The appellant, for the recovery of the above finance, brought a suit for an amount of Rs. 96,78,886/- against M/s. King Tyres Ltd, as also Mst. Firdous Chughtai, the mortgagor, which after the contest, was decreed to the tune of Rs. 74,92,137/- by the learned Banking Court on 15.3.2002. For the satisfaction of its decree, the appellant brought an application u/S. 15 etc. of the Financial Institutions (Recovery of Finances) Ordinance No. XLVI of 2001, for procuring the possession of the property. But we are told by the learned counsel for the appellant, that the Court has not yet disposed off the application, rather has directed for the sale of the property through a court-auctioneer and a Court-auctioneer for the above purpose has also been appointed.
Further facts relevant for the disposal of the case are, that M/s. PICIC, the respondent, on 1.4.2000 brought a suit for the recovery against M/s. R.C Textile Ltd. arraying Mst. Firdous Chughtai as Defendant No. 5, claiming that she stood as a guarantor/surety for repayment of the finance made to R.C Textile Mills by the PICIC. Mst. Firdous Chughtai did not contest the suit, which was decreed, inter-alia against her on 8.2.2001 by the Banking Court presided over by a learned Judge of this Court. For seeking the execution of this decree, PICIC filed a petition on 22.5.2001 and the property Bearing No. 63-Z LCCHS, belonging to Mst. Firdous Chughtai was attached by the Court vide order dated 21.10.2003. On attaining the knowledge of the above, the appellant filed objections to the attachment, which have been dismissed through the impugned order dated 21.9.2004. Hence this appeal.
Miss Ayesha Malik, learned counsel for the appellant has argued, that the learned Banking Judge has dismissed the objections, mainly on two grounds; firstly that the decree passed in favour of PICIC is earlier in time, then that of the appellant; secondly, this decree is passed by the superior forum i.e. High Court, as compared to the decree passed in favour of the appellant by the Banking Court No. 3, therefore, the PICIC has the preferential right to seek the satisfaction of its decree by the sale of the property, resultantly, the attachment order has been upheld. It is submitted that the above reasoning and the impugned order founded thereupon, is absolutely erroneous and illegal; according to the learned counsel, the decree in favour of the appellant is based upon the mortgage of the property by Mst. Firdous Chughtai; the mortgage, according to the provisions of Section 58 of the Transfer of Property Act, 1882, is the transfer of an interest in the specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement, which may give rise to a pecuniary liability against the above; the property was never mortgaged with PICIC and Mst. Firdous Chughtai only stood as a surety and a guarantor, which was a personal obligation in nature, without, in any manner, creating any right or interest of the PICIC in the property. She has further argued that the principles of Section 58 of the Transfer of Property Act, have been duly recognized and incorporated in Section 15 of the Financial Institutions (Recovery of Finances) Ordinance No. XLVI of 2001, and in addition thereto, certain special rights have also been conferred upon the financial institution, envisaged by the said provision, which are not available to a mortgage under the general law; furthermore, according to Section 19(3) of the Act ibid, the financial institution has the right to sell or cause the mortgage property to be sold with or without the intervention of the Court. Therefore, on account of the attachment of the property and also through the impugned order, the rights guaranteed to the appellant, under the law, have been nullified and frustrated. It is submitted that irrespective of the date of the two decrees, and also the forums, which Court passed the decrees, the appellant has the right to recover its decretal amount from the sale of the property as the mortgage. Resultantly, in the circumstances, the attachment of the property by the Court, which has created an impediment in the exercise of appellant's right, should be set aside.
Mr. Muhammad Raza Qureshi, learned counsel for the respondents, in reply has formulated the following four questions:--
(i) Whether the mortgage property in relation to a debt can be attached for the satisfaction of another decree;
(ii) Whether the person having no title to the property could create a valid mortgage. And while elaborating his submissions, he states that the property was not mortgaged by Mst. Firdous Chughtai, rather by her husband Mr. Riaz Chughtai, who has signed the memorandum of deposit of title deed dated 18.2.1999 on behalf of M/s. Kings Tyres Ltd. being its Chief Executive, therefore, such mortgage shall not create any valid rights in favour of the appellant, which could be recognized or protected under Section 58 of the Transfer of Property Act or Sections 15 and 19 of the Financial Institutions (Recovery of Finances) Ordinance No. XLVI of 2001;
(iii) Whether from the documentary evidence, produced by the appellant, the claim about the mortgagee of the property has been substantiated;
(iv) Whether on account of equitable mortgage, the title in teh property stands transferred to the mortgagee or it is only the transfer of interest, but in no way, deterring another decree-holder against the common judgment-debtor to seek the satisfaction of its decree from the attachment and sale of the suit property.
We have heard the learned counsel for the parties and find, that the reasons given by the learned Court while passing the impugned order, are not in accordance with the law and cannot be sustained. Irrespective of the dates of the two decrees, the property was mortgaged in favour of the appellant and while considering the objections, the effect of the mortgage including its validity should have been kept into view by the Court, rather than the timing of the decrees. Likewise, there is no substance in the reasoning of the impugned order that the decree passed in favour of the PICIC is by a higher forum and, therefore, should have preference over the decree of the appellant. This view cannot be sustained as per the principle that the rights of the mortgagee should have priority in the cases where the owner of that very property has also stood as a simple surety/guarantee, but no mortgage is involved.
To our mind, the main question involved in the case is, whether a valid mortgage has been created in favour of the appellant and if so, what is the nature of the interest, which the appellant has acquired in the property. We have considered the question about the validity of the mortgage and find, that the memorandum of deposit of the title documents dated 18.2.1999 has been duly executed by Mst. Firdous Chughtai, who has been mentioned therein as the depositor. If additionally, the document bears the stamp of the Borrower Company and is signed by Mr. Riaz Chughtai, its Chief Executive, who also in the husband of the lady, it cannot be held that no valid equitable mortgage was created. Besides the original title documents admittedly are in possession of the appellant, which were handed over with the intention to create the equitable mortgage, thus the requirements of Section 58(f) of the Transfer of property Act, are fully satisfied moreover, the charge has also been registered with SCCP and this factum has not been denied by the respondents' side. Above, all it may be significant to mention, that in the plaint of its suit, the appellant had duly described and arrayed Mst. Firdous Chughtai as a mortgagor of the property, she did contest the matter and never denied that the property was not mortgaged by her. The banking Court while passing the decree in this case was duly cognizant of the above fact and had mentioned this specifically in its judgment dated 15.3.2002 in the following words:--
"The Defendant No. 10 mortgaged her property alongwith the execution of Memorandum of deposit of title deeds in favour of the plaintiff."
Obviously, when such decree has not been challenged by Mst. Firdous Chughtai, the same has attained finality and operates as a res-judicata against her. Thus, the PICIC only for the reason that she was a personal guarantor for the discharge of some liability towards it, cannot be permitted to raise the plea that shall affect the aforesaid decision of the Court. Therefore, we are of the firm view, that a valid mortgage of the property Bearing No. 63-Z LCCHS, was created in favour of the appellant by Mst. Firdous Chughtai and the arguments of the learned counsel for the respondents and the questions formulated by him in this regard, are hereby accordingly answered.
"When a financial institution serves a notice of demand, all the powers of the mortgagor in regard to recovery of rents and profits from the final mortgaged property shall stand transferred to the financial institution until such notice is withdrawn and it shall be the duty of the mortgagor to pay all rents and profits from the mortgaged property to the financial institution." Furthermore, where a mortgagor fails to pay the amount as demanded within the period prescribed under sub-section (2), and after the due date given in the final notice has expired, the financial institution may, without the intervention of any Court, sell the mortgaged property or any part thereof by public auction and appropriate the proceeds thereof towards total or partial satisfaction of the outstanding mortgage money. Besides, the above certain rights of the mortgage are further recognized by Section 19 sub-sections (3) (4) (5) and (6).
These rights undoubtedly, to our mind, are conferred by the special law upon a mortgagee of a property and cannot be nullified and defeated, for the reason that another financial institution has also filed a suit against the common defendant/judgment debtor, but only in the capacity as a simple surety/guarantor and has procured a decree against him. Such a decree has to give way to the rights of the mortgagee/decree-holder under the general as also the special law, and should await execution, till such time, the rights of the mortgagee, under the law as well as under the decree, are first satisfied. These aspects of the case have not been kept into view by the learned Court while passing the impugned order, therefore, the same is liable to be set aside.
(A.A.) Appeal accepted.
PLJ 2006 Lahore 516
Present: Maulvi Anwar-ul-Haq, J.
Mst. GULSHAN PARVEEN--Petitioner
versus
MUHAMMAD TAYYAB--Respondent
C.R. No. 651 of 2005, heard on 16.11.2005.
Suits Valuation Act, 1887 (VII of 1887)--
----S. 11--Specific Relief Act (I of 1877) Ss. 88, 42--Revision--Suit for declaration and possession--Scope--Wrong valuation of Court fee and jurisdiction of suit--Objection--Judgment and decree set aside by Appellate Court--Essentials--Civil Judge III Class had no pecuniary jurisdiction to decide suit, value whereof was 6/7 lacs--Case was referred for entrustment to Civil Judge Ist Class for fresh decision--No objection had been taken in written statement to pecuniary jurisdiction of Court of Civil Judge Ist Class--Neither in first appeal nor in second appeal, any objection was taken to pecuniary jurisdiction of trial Court--No objection was taken to jurisdiction of Civil Judge III Class till such time that suit was decided--Section 11 of said Act, provided for entertaining of objection by party to pecuniary jurisdiction of Court in appeal and provided in clear terms that such objection would not be entertained by Appellate Court under objection was taken in Court of first instance--Firstly, No objection was taken at any stage in trial Court to the jurisdiction of Civil Judge III Class, secondly, no finding recorded by Court of first appeal that there had been failure of justice on merits of case because of said defect--Impugned order is wholly without lawful authority and could not be sustained--High Court allowing revision impugned order set aside--Result would be the first appeal filed by petitioner would be deemed to be pending before Appellate Court and would be decided on merit within specified time--Revision allowed. [Pp. 516, 517 & 518] A, B, C & D
Rana Meraj Khalid, Advocate for Petitioner.
Mr. Tariq Muhammad Iqbal, Advocate for Respondent.
Date of hearing : 16.11.2005.
Judgment
On 6.12.1999 the petitioner filed a suit against the respondent. For the Order I propose to pass in this case, I will not be referring to the pleaded facts in much detail. Suffice it to say that the suit was for declaration that the registered gift-deeds, mentioned in the plaint, and the mutations attested thereon are illegal and void. Possession was also sought. In para. 7 of the plaint it was stated that the value of the suit for purposes of Court-fee and jurisdiction is fixed at Rs. 400. On 11.5.2000 the respondent filed a written statement, inter alia, it was objected that proper Court-fee has not been paid on the plaint. Issues including the following Issue No. 5 were framed on 27.9.2000:--
"5. Whether the suit has been improperly valued for the purposes of Court-fee and jurisdiction, if so then what is the exact valuation of the suit for this purpose? OPD"
Evidence of the parties was recorded. Vide judgment and decree dated 8.2.2003 a learned Civil Judge-III Class, Sahiwal proceeded to decree the suit. I may note there that under the said Issue No. 5 it was held that the plaintiff has admitted that the value of the suit property is Rs. 6/7 lacs, as such, no Court-fee has been paid. In para. 6 of the judgment he directed the plaintiff to pay the Court-fee within 30 days. Against this judgment and decree a first appeal was filed on 10.4.2003. This appeal was dismissed by a learned Additional District Judge, Sahiwal on 13.4.2004. the respondent filed R.S.A. No. 64 of 2004 in this Court. It was allowed on 3.11.2004 and the case was remanded back to the learned Court of appeal for afresh decision. Vide judgment and decree, dated 9.3.2005 learned Additional District Judge, Sahiwal proceeded to allow the appeal and to set aside the judgment and decree of the learned trial Court on the ground that he being a Civil Judge-III Class had no pecuniary jurisdiction to try and decide the suit the value whereof was Rs. 6/7 lacs. The case was referred to the learned Additional District Judge, Sahiwal for entrustment to a learned Civil Judge Ist Class, Sahiwal for afresh decision.
Learned counsel for the petitioner contends with reference to Section 11 of the Suits Valuation Act, 1887 that the learned Appellate Court had no lawful authority to set aside the judgment and decree of the learned trial Court on the said ground. The precise contention is that no objection was taken to the jurisdiction of the learned Civil Judge-III Class in the manner prescribed.
Learned counsel for the respondent supports the impugned order with the contention that an objection as to valuation was taken in the written statement.
I have gone through the copies of the available records. Now, the suit was initially filed in the Court of learned Senior Civil Judge, Sahiwal and as per endorsement on the same was entrusted to a learned Civil Judge Ist Class. The written statement also shows that it was filed in the Court of learned Civil Judge 1st Class.
Now, there is no objection, and it could not have been there in the written statement, to the pecuniary jurisdiction of the Court as it was filed in a Court of learned Civil Judge Ist Class. It appears that the case was entrusted to a learned Civil Judge-III Class in routine. Be that as it may, neither in the first appeal nor in the said second appeal, I find any objection taken to the pecuniary jurisdiction of the learned trial Court. Of course, no objection was taken to the jurisdiction of the learned Civil Judge-III Class till such time that the suit was decided.
Now, Section 11 of the Suits Valuation Act, 1887 provides for entertainment of an objection by a party to the pecuniary jurisdiction of a Court in an appeal. Now, it provides in clear terms that such an objection shall not be entertained by an Appellate Court unless the objection was taken in the Court of first instance at or before the hearing at which issues first framed and recorded or that the Appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit was overvalued or undervalued, and that the overvaluation or under-valuation thereof has prejudicially affected the disposal of the suit on its merits. Sub-section (2) further clarifies that even if the objection was taken in the manner prescribed in Section 11(1)(a) yet if the Appellate Court is not satisfied of the said conditions it shall dispose of the appeal as there is no defect of jurisdiction in the Court of first instance.
Now, examining the present case in the light of the said statutory provisions. In the first instance no objection was taken at any stage in the trial Court to the jurisdiction of the learned Civil Judge-III Class and in the second there is no finding recorded by the Court of first appeal that there has been a failure of justice on merits of the case because of the said defect. This being so, the impugned order is wholly without lawful authority and cannot be sustained. The C.R. is allowed. The impugned order, dated 9.3.2005 of the learned Additional District Judge, Sahiwal is set aside. The result would be that the first appeal filed by the petitioner shall be deemed to be pending before the learned District Judge, Sahiwal in whose Court the parties shall appear on 21.12.2005. The learned District Judge shall requisition the records and proceed to decide the appeal either himself or entrust it to a learned Additional District Judge, who shall decide the first appeal on its own merits preferably within three months of the said date.
A copy of this judgment be immediately remitted to the learned District Judge, Sahiwal.
(A.S.) Revision allowed.
PLJ 2006 Lahore 519 (DB)
Present: Ch. Ijaz Ahmed & Mian Saqib Nisar, JJ.
MUHAMMAD RAFIQUE--Appellant
versus
UNITED BANK LTD. LAHORE and 2 others--Respondents
E.F.A. No. 215 of 2001, decided on 17.5.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XXIII, R. 3--Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, S. 21--Compromise between parties during pendency of appeal--While passing such order on basis of compromise in question Court had not considered validity of compromise and also did not take into consideration, whether judgment debtors, whose property was being sold in pursuance of agreement/compensation were also party thereto or not--Such omission, having not been pointed out by those who were present at the time of order in question, can be construed as a concealment of material fact, on part of parties to compromise--When any lis was disposed off by Court on basis of compromise between parties, such order/judgment would not be the one passed by Court on merits of case--Where however agreement/compromise was challenged as invalid, and same was so adjudged by Court, decision of the Court based upon such agreement would automatically sink alongwith annulment of agreement/compromise--Appellant being not a party to contract/compromise in question, would have no legal effect upon ownership right of appellant and was thus, annulled. [Pp. 522 & 523] A & B
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XXI, Rr. 65 & 66--Mortgaged property of judgment debtor--Sale of--Mortgaged property of judgment debtor cannot be sold through private negotiation by decree holder, in favour of third party even if such party claims any prior agreement of sale with judgment debtor--Where Executing Court has decided to attach and sell property of any judgment debtor, under O. XXI, R. 65 C.P.C. sale has to be conducted. [Pp. 523 & 524] C
(iii) Financial Institution (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 19--Private sale made by decree holder under S. 19 of the Ordinance, 2001--Legality--Sale of mortgaged property, under Ordinance, 2001, though is permissible and can be made by decree holder, with or without intervention of Court, yet subject to essential conditions that such sale should either be through sealed tender or by public auction. [P. 524] D
(iv) Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2) & O. XXI, R. 65--Execution of decree--Private sale negotiated between decree holder and third party--Legality--Jurisdiction--Order of Court on basis of compromise procured from Court by concealment--Compromise itself appeared to be unlawful--Order in question based on such compromise being not within jurisdiction of that Court was set aside. [P. 524] E
(v) Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2) & O. XXI, R. 65--Auction of property without notice to judgment debtor--Such order tantamounts to condemning judgment debtors unheard and being violative of principle of natural justice was set aside. [P. 524 & 525] F
Ch. Muhammad Aslam Zia, Advocate for Applicant.
Mr. Muhammad Iqbal, Advocate for Appellant (in EFA).
Mr. Ch. Naseem Mahmood, Advocate for Respondents.
Date of hearing : 17.5.2005.
Judgment
Mian Saqib Nisar, J.--By this single judgment, we intend to dispose of the following applications and the appeals, as all involve common questions of law and facts:--
CM No. 646-C-2002 IN EFA No. 215/2001.
CM No. 647-C-2002 IN EFA No. 216/2001.
CM No. 648-C-2002 IN EFA No. 217/2001.
CM No. 649-C-2002 IN EFA No. 218/2001.
CM No. 650-C-2002 IN EFA No. 219/2001.
CM No. 651-C-2002 IN EFA No. 220/2001.
CM No. 652-C-2002 IN EFA No. 221/2001.
CM No. 653-C-2002 IN EFA No. 222/2001.
CM No. 654-C-2002 IN EFA No. 223/2001.
CM No. 655-C-2002 IN EFA No. 224/2001.
Through these applications u/S 12(2) CPC, the order dated 14.5.2001, passed by this Court, on CM No. 3/2001, in the main appeals, whereby the said appeals were disposed of on the basis of a compromise, between the decree holder/bank (hereinafter called the "respondent-bank") and Respondent No. 2, who was the appellant in that appeal (hereinafter called the "other respondent"), has been assailed.
Briefly stated the facts of the case, necessary for the disposal of these applications are, that the respondent-bank, brought two suits for the recovery of the amount of Rs. 35,312,090 and Rs. 28,354,984/- against M/s. Mashriq (Pvt.) Limited (applicant) and National Press Trust, which were decreed on 15.1.1994 and 16.1.1994 respectively. For the purposes of the execution and the satisfaction of the decrees, the respondent-bank brought execution petitions on 19.3.1997, in which, the immovable property Bearing No. 7 Abbot Road, Lahore, commonly known as Mashriq Plaza, belonging to the judgment debtor (applicant) was attached. For the sale of such property, notices under Order 21, Rule 66 CPC, were issued to them. However, before the property could be sold through Court auction, some of the occupants/tenants of the property filed objections before the learned executing Court, claiming that the judgment debtors/owners of the property, out of the same, has agreed to sell certain premises to him/them. And therefore, such part of the attached property, cannot be sold in execution of the above decrees.
These objections were not disposed of by the learned executing Court, but the property was directed to be put to auction. Aggrieved of the above, the other respondent (objectors) filed the noted EFAs, with the basic grievance that without the disposal of their objections, the auction of the property could not be ordered.
Pre-admission notices were issued to the respondents in the appeals i.e. the respondent-Bank and the judgment debtors (the applicants). From the record, it transpires that for some earlier occasion, the service of the applicant was affected, but it neither appeared before the Court nor was proceeded ex-parte. However, there is nothing on the record, to show, if any service of the applicant was affected specifically for 14.5.2001; when the respondent-bank, as also the other respondent moved a joint application bearing CM No. 3-2001, in which, it is stated that the respondent-bank and the respondents have entered into a compromise, whereby the bank has agreed to transfer certain premises of the attached property in his/their favour for the consideration of a specific amount, mentioned in the application. The application on behalf of the other respondent, is signed by M. Iqbal Advocate, whereas, the representative of the respondent/bank as also Mr. Naseem Mehmood, Advocate on behalf of the bank, have affixed their signatures. When this application came up before this Court on 14.5.2001, no request was made by the parties thereto, for the issuance of the notice to the applicant and the following order was procured from the Court:--
"The matter has been settled between the parties outside the Court. The parties have placed on record this application to dispose of appeal in terms of contents of this application. The application is duly signed by both the Advocates of appellant and respondents. The application is supported by the affidavit of applicant. The application is allowed as prayed for. Consequently, the appeal is disposed of in terms of contents of this application."
Aggrieved of this order, the applicant M/s. Mashriq (Pvt.) Limited, being the owner of the property, who was Respondent No. 2, in the main appeal, has filed the applications u/S. 12(2) CPC, challenging the above order, on the grounds that the same has been obtained by, and is the result of fraud and misrepresentation, etc; the applicant was neither served in the case for 14.5.2001, nor was represented on the said date; the applicant is not a party to the compromise, whereas its property has been sold, otherwise than in accordance with law, by private means, without involving and associating the actual owner and without its consent.
These applications have been resisted by the respondent-bank, as also the other respondent, on the ground that the conduct of the applicant does not entitle it to the equitable relief, because not only in the executing Court, but even before this Court, the applicant has been trying to delay the execution of the decrees; the applicant was duly served, but did not put in appearance before the Court and in the circumstances, any agreement arrived at between the respondent-bank and the other respondent for the disposal of mortgage property is valid. It is further submitted from the respondents' side that under the provisions of Section 18 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 as also under Section 19 of the Financial Institutions (Recovery of Finances), Ordinance 2001, the decree holder/bank has the power and the authority to sell the mortgaged without the intervention of the Court, therefore, any agreement/compromise arrived at between the respondents in this behalf, is valid in law, especially, when it has been accepted and endorsed by this Court.
We have heard learned counsel for the parties. As far as the question of the service of the applicant is served, suffice it to say that even if served for any earlier date, the applicant has never been proceeded ex-parte and there is nothing on the record, that any notice was issued or served upon the applicant for 14.5.2001, particularly on CM No. 3/2001, which came up as an urgent matter, for the first time on the said date. Obviously, on account of the above, the applicant seems to have no notice of the settlement between the bank and the other respondent. Moreover, the main appeal was yet at the motion stage and only pre-admission notice was sent to the respondents of the case, when the respondents moved a joint application that a compromise has been affected and the matter must be settled on the basis thereof. While passing the order dated 14.5.2001, this Court has not considered the validity of the compromise and also did not take into consideration, the factum, if the judgment debtors, whose property is being sold in pursuance of the agreement, is/are also party thereto, or otherwise. This was neither pointed out to the Court, by those present at the time of passing the order, nor this is specifically spelt out from the contents of the CM No. 3/2001. Therefore, such omission can reasonably construed, as a concealment of a material fact, on part of the parties to the compromise. Rather from the tenor of the order dated 14.5.2001, it seems that the Court was given the impression that the settlement has been arrived at between the appellant of the case and all the respondents, which shall obviously include the applicant. The Court, therefore, passed the order being oblivious of the true position, that the applicant is not a party to the compromise.
Notwithstanding the above, it shall be expedient to hold that when a lis is disposed off by the Court on the basis of a compromise between the parties, the order/judgment shall not be the one passed by the Court on the merits of the case, which always is based upon the proper adjudication of the Court about the factual and legal controversy involved in the matter; such decision has altogether a different status, sanctity and legal value. But where the case is decided on account of an agreement/compromise between the parties, even if approved by the Court, the validity of the order/judgment remains dependent upon being the lawful agreement. Therefore, the agreement/compromise is challenged as being invalid and it is so adjudged by the Court, the decision of the Court based upon the agreement shall automatically sink alongwith the annulment of the agreement/compromise.
Therefore, it has become expedient for us to assess, adjudicate and determine, whether the agreement between the other respondent and the respondent-bank envisages through CM No. 2001 on the foundation of which the order dated 14.5.2001 is rested, is lawful or otherwise. It is settled law that the contract shall only be valid inter se the parties and no stranger thereto can be bound by the terms of the contract until and, unless such stranger has expressly or by necessary implication accepted the contract. There is neither the defence in the reply to this application, nor it has been argued that the applicant in any manner, whatsoever has ever accepted the agreement between the respondent-bank and the other respondent. Resultantly, we are constrained to hold that the compromise between the respondent-bank and the other respondent shall have no legal effect, upon the ownership right of the applicant and therefore, is annulled.
As regards the plea raised by the respondents, if the mortgaged property of a judgment debtor can be sold through private negotiation, by the decree holder, in favour of a third party, even if such party claims any prior agreement of sale with the judgment debtor. The answer is `No'. Because for the purposes of the execution and satisfaction of a money decree, the mode has been clearly provide by Order 21 Rule 30 CPC, which reads as below:
"Decree for payment of money:- Every decree for the payment of money, including a decree for the payment of money, as the alternative to some other relief, may be executed by the dentention in [ ] prison of the judgment debtor, or by the attachment and sale of his property, or by both."
Therefore, when the executing Court, has decided to attach and sell the property of a judgment debtor, under Order 21 Rule 65 CPC, the sale has to be conducted, if it is not prescribed otherwise through a public auction. In the instant case, the executing Court, when had taken a conscious decision to sell the property by the auction and notice under Order 21 Rule 66 CPC, was issued to the judgment debtor/applicant, which had neither been suspended or set aside by this Court, in the appeals of the other respondent; the respondent-bank under the law had no authority to circumvent the authority and the mode chosen by the executing Court for the disposal of the property and to agree for selling the same in favour of the other respondent, through private means.
Now examining the proposition, whether the private sale could be made by the decree holder under the provisions of Section 18 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 or Section 19 of the Financial Institutions (Recovery of Finances), Ordinance 2001, suffice it to say that the sale of the mortgaged property under the above law, though is permissible and can be made by the decree holder, with or without the intervention of the Court, but subject to the essential conditions that the sale should either through the sealed tender or by public auction. The purpose behind is that no room should be left to default and cause prejudice to the rights of the judgment debtor, who is the owner of the property and the sale proceeds are to be appropriated to his debt and credit. Therefore, we find ourselves in disagreement with the counsel for the respondents that the sale made on the basis of the compromise between them is covered by the above laws.
For what has been stated above, we find that case of the applicant squarely falls within the purview of Section 12(2) CPC, inasmuch as the order dated 14.5.2001 has been procured from this Court by the concealment and also not putting the Court to the full facts that the private sale cannot be negotiated between the respondent-bank and the other respondent, which agreement was unlawful and therefore, any order based thereupon shall not be within the jurisdiction of this Court, resultantly, the order dated 14.5.2001, is set aside with the result that the main appeals filed by Respondent No. 2, mentioned above stand restored.
Coming to the appeals, the main grouse/complaint in these appeals are that though the appellants have entered into an agreement of sale with the judgment debtors/owners of the property, yet in violation of the terms under the agreement, the property is being put to auction, when they brought these objections before the executing Court; the learned Court has absolutely ignored the same and directed for the auction of the property. Obviously, this tantamount to condemning the appellants unheard and therefore, such order being violative of the principle of natural justice, cannot sustain, therefore, these appeals are also accepted, the matter is sent to the learned Banking Court, where the objections of the appellant, shall be deemed pending, with the direction to decide the same in accordance with law.
Before parting it may be stated that as under the agreement dated 26.4.2001, which was made the basis of the order of this Court dated 14.5.2001, the appellants have paid certain amount to the decree holder, resultantly, when the said order is being set aside, the respondent-bank is obliged to return that amount to the appellants, which should be done within three weeks from today without fail.
(A.A.) Order accordingly.
PLJ 2006 Lahore 525
Present: Sayed Zahid Hussain, J.
JDW SUGAR MILLS LTD. through G.M. Finance--Petitioner
versus
PROVINCE OF PUNJAB, through Secretary Deparmtent of Irrigation and Power Lahore and another--Respondents
W.P. No. 3761 of 2002, decided on 10.6.2005.
(i) Punjab Finance Ordinance, 2001 (VI of 2001)--
----S. 13(4)--Constitution of Pakistan (1973), Art. 199--Notification dated 25.8.2001, whereby any person generating electric power from generator having capacity of more than 500 K.W was required to pay electricity duty with effect from 1.7.2001, assailed as being repugnant to constitutional provisions--Provisions of S. 13(4) of Punjab Finance Ordinance 2001, would indicate that in case of energy other than that supplied by a licensee, person generating energy would pay to Government electricity duty in respect of energy consumed--Word "licensee" as used in S. 4 of Punjab Finance Ordinance, 2001 would include any person generating electric power from a generator having capacity of more than 500 K.W. for self use--Notification in question was thus, valid. [Pp. 532 & 533] A & C
(ii) Interpretation of Statutes--
----Provisions of law cannot be interpreted in isolation, ignoring progressive trends of time--While discovering true meanings one must have regard to enactment as a whole, to its objects and to the scope and effect of provisions thereof. [P. 533] B
(iii) Punjab Finance Ordinance, 2001 (VI of 2001)--
----S. 13(4)--Notification dated 25.8.2001--Operation of notification with retrospective effect--Applicability of notification in question with effect from a date prior to its issuance cannot be regarded as legal--Notification dated 25.8.2001 would be effective from the date of its issuance i.e. 25.8.2001 and not from 1.7.2001. [P. 533] D
(iv) West Pakistan Electricity Duty Rules, 1964--
----R. 11--Constitution of Pakistan (1973), Art. 199--Questions relating to energy lost in process of generation etc.--For settlement of such disputes resort can be had to provisions of R. 11 of West Pakistan Electricity Duty Rules 1964, which are still in force and Electric Inspector can enquire into such issues and decide the matter according to law. [P. 534] E
1995 SCMR 1856; 1996 SCMR 1470; 1997 SCMR 641; PLD 2003 Lahore 531 and PLD 1997 SC 582, ref.
M/s Ijaz Ahmad Awan, Salman Akram Raja, Noman Akram Raja & Mahmood-ur-Rasheed, Advocates for Petitioner.
Ch. Aamer Rehman, Addl. Advocate General Punjab; Mr. M.A. Aziz, Advocate; Mr. Abdul Rehman Madni, Advocate for WAPDA.
Dates of hearing : 11, 13 & 15.4.2005, 10, 17, 19 and 20.5.2005.
Judgment
Notification dated 25.8.2001 issued under Section 4 of the Punjab Finance Ordinance, 2001 (Ordinance VI of 2001) whereby it was provided that "any person generating the Electric Power from a Generator having the capacity of more than 500 KW shall pay the Electricity duty w.e.f. 1.7.2001" has been assailed through this and the other petitions on the subject mentioned in the attached list "A".
M/s Salman Akram Raja, Noman Akram Raja and Ijaz Ahmed Awan, Advocates have mainly argued the cases on behalf of the petitioners whereas rest of the learned counsel for the petitioners have adopted their arguments.
The main thrust of the contentions of the learned counsel for the petitioners is that electricity duty which was levied through Section 13 of West Pakistan Finance Act, 1964 is payable only with respect to consumption by a consumer when supplied by a licensee. It is contended that mere generation of electricity and its self use is not subject to levy of duty. According to them it is the licensee who is to pay the electricity duty on behalf of the consumer out of the revenue that comes into its hands and that since self use by the licensee generates no revenue their can be no question of payment of electricity duty. In order to supplement and fortify their contentions, amendment made through Punjab Finance Ordinance 1980 (Ordinance VIII of 1980) in the Punjab Finance Act, 1964 is pressed into service, that the duty was payable on energy charges worked out according to the tariff and that since self consumption by a producer of electricity is not subject to a tariff determination, self consumption cannot be subjected to electricity duty. It is added that supplier of electricity and consumer are two separate entities and both are to be treated distinctly. It is contended that even with the amendment made through Section 4 of the Punjab Finance Ordinance, 2001 (Ordinance VI of 2001) creating a category of deemed licensee, the scope of word supply has not been altered. It is further contended that even if it be assumed that self consumption by the producer of electric power by means of private power generators is dutiable even then by virtue of notification dated 13.12.1985 they are exempt from its payment which exemption notification has not been withdrawn or rescinded. It is contended that notification dated 25.8.2001 which purports to impose electricity duty on all persons generating electric power from generator having capacity more than 500 KW is ultravires as it has no legal backing i.e. Section 13 of West Pakistan Finance Act, 1964. With reference to the provisions of Clause (2) (b) of Article 157 of the Constitution of Islamic Republic of Pakistan, 1973 it is contended that tax can be levied only on consumption of electricity within the Province. It is further contended that the line losses and losses of energy in the course of generation has also not been kept in view as the energy lost cannot be capable of consumption and the notification is bad for such reason also. Legality of the notification has also been assailed on the ground of retrospectivity that whereas the notification was issued on 25.8.2001 it purports to levy electricity duty w.e.f. 1.7.2001, the same cannot operate retrospectively. Reference has been made to Amanullah Khan v. Chief Secretary, Government of N.W.F.P. and 2 others (1995 SCMR 1856) and B.P. Biscuit Factory Ltd., Karachi v. Wealth Tax Officer and another (1996 SCMR 1470) to highlight the principles applicable for interpreting fiscal laws.
The learned Additional Advocate General Punjab while contesting the petitions and controverting the contentions of the learned counsel for the petitioners has contended with reference to the provisions of Article 157 of the Constitution of Islamic Republic of Pakistan, 1973, that levy of electricity duty is within the competence of Provincial Government and Section 13 was validly enacted as also the amendment made through Punjab Finance Ordinance 2001. Reference in this context has been made by him to Messrs Gadoon Textile Mills and 814 others vs. WAPDA and others (1997 SCMR 641) and Messrs Fecto Cement Ltd. v. Federation of Pakistan and others (PLD 2003 Lahore 531). It is contended that not only the petitioners had been paying electricity duty in the past but in all other Provinces also such duty has been levied and is being paid. It is pointed out that even WAPDA is paying the duty as every body generating or consuming energy is liable to pay duty and self-consumption is not excluded. According to him under the West Pakistan Finance Act 1964, West Pakistan Electricity Duty Rules 1964 had been framed, the petitioners had the alternate remedy under Rule 11 thereof before the Electric Inspector, therefore, the petitions are liable to be dismissed for that reason.
The learned counsel for the petitioners, responded to the alternate remedy aspect that the issues of vires and legality of the leviability cannot be adequately decided by the Electric Inspector, therefore, therefore, the petitioners' availing of the said remedy could not serve any real purpose.
"157. (1) The Federal Government may in any Province construct or cause to be constructed hydro-electric or thermal power installations or grid stations for the generation of electricity and lay or cause to be laid inter-Provincial transmission lines.
(2) The Government of a Province may--
(a) to the extent electricity is supplied to the Province from the national grid, require supply to be made in bulk for transmission and distribution within the Province;
(b) levy tax on consumption of electricity within the Province;
(c) construct power houses and grid stations and lay transmission lines for use within the Province; and
(d) determine the tariff for distribution of electricity within the Province.
This provision of the Constitution came to be considered by their Lordships of the Supreme Court of Pakistan in Messrs Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCMR 641) and it was observed that sub-clause (b) of clause (2) empowers the Government of a Province to levy tax on consumption of electricity within the Province. This provision and provisions of Section 13 of West Pakistan Finance Act 1964 were also considered by a learned Bench of this Court in Messrs Fecto Cement Ltd. v. Federation of Pakistan and others (PLD 2003 Lahore 531), though in some different context yet on consideration of the matter the validity of Section 13 of West Pakistan Finance Act 1964 was upheld.
"13. (1) From the first day of July, 1964, there shall be levied and paid to Government, on the units of energy consumed for the purposes specified in the first column of the Fifth Schedule, excluding losses of energy in transmission and transformation, a duty (hereinafter referred to as `Electricity Duty') at the rates specified in the second column of that Schedule:
Provided that Electricity Duty shall not be leviable on the energy consumed by, or in respect of the consumers enumerated in the Sixth Schedule, except to the extent specified therein:
Provided further that for reasons to be recorded, Government may, by notification in the official Gazette, exempt any other consumer or class of consumers from the operation of this section.
Explanation--In this Section, unless there is anything repugnant in the subject or context--
(a) "Consumer" means any person other than a distributing licensee, who is supplied with energy by licensee;
(b) "energy" means electrical energy when generated, transmitted, supplied or used for any purpose except the transmission of a message;
(c) "licensee" means any person licensed under Part II of the Electricity Act, 1910 (Act IX of 1910), to supply energy and includes any person who has obtained the sanction of the Government under Section 28 of the Act. (This clause was amended in 2001 which finds mention in the subsequent paragraphs).
(2) Every licensee shall collect and pay to the Government the electricity Duty payable under this section in such manner as may be prescribed. The duty so payable shall be a first charge on amount recoverable by the licensee for the energy supplied by him and shall be a debt due by him to the Government:
Provided that:--
(i) the licensee shall not be liable to pay the duty in respect of any energy supplied by him for which he has been unable to recover his dues;
(ii) the licensee shall be entitled, for his cost of collection of the duty, to a rebate of such percentage, as may be determined by the Government, on the amount of the duty collected and paid by him under this sub-section.
(3) Where any person fails or neglects to pay the amount of Electricity Duty due from him, the licensee may, without prejudice to the right of Government to recover the amount under Section 3 of the [Punjab] Government Dues Recovery Ordinance 1962 (West Pakistan Ordinance XXII of 1962), discontinue to supply energy to him and for this purpose, exercise the power conferred on a licensee by sub-section (1) of Section 24 of the Electricity Act, 1910 for recovery of any charge or sum due in respect of energy supplied by the licensee.
(4) In case of energy other than that supplied by a licensee, the person generating the energy shall pay to the Government the electricity Duty payable under this section in respect of the energy consumed, in such manner as may be prescribed.
Section 17 thereof empowered the Government to make rules for that purpose. Accordingly West Pakistan Electricity Duty Rules, 1964 were framed. Section 13(1) of Punjab Finance Act, 1964 (Act XXXIV of 1964) was sought to be substituted through Punjab Finance Ordinance, 1978. However, the said Ordinance was repealed on 9.7.1978 w.e.f. from the date of its promulgation, which lost its legal efficacy. Through the Punjab Finance Ordinance, 1980 some amendments were carried out in the Fifth and Sixth Schedule. Thereafter the relevant legislation came through Section 4 of Punjab Finance Ordinance, 2001 (No. VI of 2001) substituting explanation "C" to sub-section (1) of Section 13 of the Punjab Finance Act, 1964 (Act XXXIV of 1964). This because of its significance is reproduced:--
"(c) "licensee" means a person licensed under Section 15 or 20 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (XL of 1997) to engage in the generation and sale of energy to a consumer and includes any person generating the electric power from a generator having the capacity of more than five hundred kilowatt for self use."
Notification dated 25.8.2001 was then issued, which has been assailed by the petitioners. It reads as follows:
"In exercise of the powers conferred upon him under Section 4 of the Punjab Finance Ordinance, 2001), and in suppression of all previous notifications, the Governor of the Punjab is pleased to direct that any person generating the Electric Power from a Generator having the capacity of more than 500 KW shall pay the Electricity Duty w.e.f. 1.7.2001."
Thus, the prime question to be considered is as to whether notification dated 25.8.2001 has been issued within the parameters of law and has got the backing of contemporaneous law.
(i) "That in view of wide variety of diverse economic criteria, which are to be considered for the formulation of a fiscal policy, Legislature enjoys a wide latitude in the matter of selection of persons, subject-matter, events, etc. for taxation. But with all this latitude certain irreducible desiderata of equality shall govern classification for differential treatment in taxation law as well.
(ii) That Courts while interpreting laws relating to economic activities view the same with greater latitude than the laws relating to civil rights such as freedom of speech, religion etc., keeping in view the complexity of economic problems which do not admit of solution through any doctrinaire or strait jacket formula as pointed out by Holmes, J. in one of his judgments.
(iii) That Frankfurter J., in Morey v. Doud (1957) U.S. 457 has remarked that "in the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to the legislative judgment";
(iv) that the Legislature is competent to classify persons or properties into different categories subject to different rates of tax. But if the same class of property similarly situated is subject to an incidence of taxation, which results in inequality amongst holders of the same kind of property it is liable to be struck down on account of infringement of the fundamental right relating to equality.
(v) That "a State does not have to tax everything in order to tax something. It is allowed to pick and choose districts, objects, persons, methods and even rates for taxation if it does so reasonably" (Willi's Constitutional Law).
(vi) ......
(vii) ......
(viii) That while interpreting Constitutional provisions Court should keep in mind, social setting of the country, growing requirements of the society/nation, burning problems of the day and the complex issues facing the people, which the Legislature in its wisdom through legislation seeks to solve. The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid.
(ix) That the law should be saved rather than be destroyed and the Court must lean in favour of upholding the constitutionality of a legislation keeping in view that the rule of Constitutional interpretation is that there is a presumption in favour of the constitutionality of the legislative enactments unless ex facie it is violative of a Constitutional provision.
(x) .......
(xi) .......
(xii) .......
(xiii) .......
(xiv) .......
(xv) .......
(xvi) .......
(xvii) That generally the effect of a deeming provision in a taxing statute is that it brings within the tax net an amount which ordinarily would not have been treated as an income. In other words, it brings within the net of changeability income not actually accrued but which supposedly to have accrued notionality.
(xviii) ........
(xix) That where a person is deemed to be something the only meaning possible is that whereas he is not in reality that something, the Act required him to be treated as he were with all inevitable corollaries of that state of affairs.
These are the salutary principles to be kept in view while deciding the controversy.
The contentions of the petitioners if considered with reference to Section 13(1) of Act XXXIV of 1964 alone, it appears to be attractive, however, on a closer examination when considered in the context of all the legislative measures including provisions of Section 4 of Punjab Finance Ordinance 2001, the tenability of the claim of the petitioners becomes questionable and is found to be not worthy of countenance. Section 13(1) provides the levy of electricity duty on the units of energy consumed Explanation thereto defines "consumer", "energy" and the "licensee". Sub-section (2) thereof burdened the licensee with the duty to collect and pay the electricity duty to the Government. Sub-section (4) thereof is, however, of some significance according to which in the case of energy other than that supplied by a licensee, the person generating the energy shall pay to the Government the electricity duty payable under this section in respect of the energy consumed. It brought within its ambit the person generating the energy. If there was some obscurity the same was set at rest with the promulgation of Ordinance VI of 2001 i.e. The Punjab Finance Ordinance, 2001. Section 4 whereof substituted the term "licensee" and enlarged its meaning to "include any person generating the electric power from a generator having the capacity of more than five hundred kilowatt for self use."
Too much stress and emphasis has been laid upon the expression "consumer" and "consumption" as used in Section 13(1) of The Punjab Finance Act, 1964 (W.P. Act, XXXIV of 1964) and sub-clause (b) of Clause (2) of Article 157 of the Constitution of Islamic Republic of Pakistan, 1973. It need to be kept in view that these terms are not to be construed in a pedantic, restrictive and limited manner. With the changing trends and passage of time, dependency upon the supply of energy from the national grid system has lessened and self-generation for self-consumption is being encouraged and taking place. The provisions of law cannot, therefore, be interpreted in isolation, ignoring the progressive trends of time. It may be observed that while discovering the true meanings one must have regard to the enactment as a whole, to its objects and to the scope and effect of the provisions.
The issuance of notification dated 25.8.2001 that "any person generating the electric Power from a Generator having the capacity of more than 500 KW shall pay the electricity Duty w.e.f. 1.7.2001." was consistent with the legislative field of power of Provincial Government and its will. The notification thus sought to be assailed had the backing of the statutory provisions, validity whereof is beyond any doubt. The levy of the duty, therefore, cannot be disputed or assailed on any sustainable grounds.
The reliance of the petitioners on exemption notification of 1985 whereby "consumers using private generators" were exempt from the payment of electricity duty is also not apt inasmuch as notification dated 25.8.2001 was issued "in suppression of all previous notifications", thus the notification relied upon by the petitioners (regarding exemption) had lost its legal efficacy having been superseded and cannot be pressed into service.
There is some substance, however, in the contention of the learned counsel as to the retrospective operation of notification dated 25.8.2001. Whereas the notification dated 25.8.2001 is and has been found to be valid and intra vires having the backing of law, its application w.e.f. a date prior to its issuance cannot be regarded as legal. From the tenor of notification it appears that the same has been given effect w.e.f. 1.7.2001 whereas it was issued on 25.8.2001. In view of the settled law that such subordinate legislative measures cannot operate retrospectively it is clarified that the notification will be effective from the date of its issuance i.e. 25.8.2001 and not from 1st July 2001.
There are few peripheral issues about the energy lost in the process of generation etc. For the settlement of such disputes resort can be had to the provisions of Rule 11 of West Pakistan Electricity Duty Rules 1964 which statedly are still in force and the Electric Inspector can well enquire into such issues and decide the matter according to law.
In view of the above the petition is dismissed with the clarification made in Paragraph No. 11 and observations contained in Paragraph No. 12 above.
The parties to bear their own costs.
(A.A.) Order Accordingly.
PLJ 2006 Lahore 534 (Rawalpindi Bench Rawalpindi)
Present: Muhammad Akhtar Shabbir, J.
MALIK MUHAMMAD DIN and 2 others--Petitioners
versus
CHIEF ADMINISTRATOR AUQAF GOVT. OF PUNJAB LAHORE and another--Respondents
W.P. No. 994 of 2004, decided on 28.6.2005.
(i) General Clauses Act, 1897 (X of 1897)--
----S. 21--Principle of locus poenitentaie--Applicability--Authority competent to make order has power to undo such order--Order made by authority, however cannot be withdrawn or rescinded once it had taken legal effect and certain right were created in favour of any individual and principle of locus poenitentiae, would be available. [P. 537] A
(ii) Punjab Waqf Properties Ordinance, 1979 (IV of 1979)--
----S. 7--Administration, control, management and maintenance of Mosque taken over by Auqaf Administration and then handed over to a committee to manage the same--Subsequent recession and withdrawal of that order--Mangement committee claiming vested right in such Mosque--right to offer payer in a mosque is vested to all Muslim and not to any particular person, sect, group or particular school of thought. [P. 537] B
(iii) Delegation of Powers Rules, 1960--
----R. 4--Powers of Chief Administrator Auqaf--Delegation of--Powers of Chief Administrator Auqaf cannot be delegated except the officers mentioned in R. 4 of Delegation of Powers Rules 1960--Delegator is empowered to recall powers from delegatee--Delegation does not imply parting with powers of person who grants delegation. [P. 538] C
(iv) General Clauses Act, 1897 (X of 1897)--
----S. 21--Constitution of Pakistan 1973, Art. 199--Administration, control, management and maintenance of Mosque delegated to committee by Chief Administrator Auqaf--Withdrawal and recession of notification of delegation--Chief Administrator while issuing notification in question had applied his own mind accepting request of people of that area--Constitutional petition was not maintainable against order in question. [P. 538] D
1997 MLD 303 and 2004 SCMR 497, ref.
Mr. Mujeeb-ur-Rehman Kiani, Advocate for Petitioners.
Malik Muhammad Jehanzeb Khan Tamman, Advocate for Respondent (in C.M. No. 1111 of 2004).
Date of hearing : 28.6.2005.
Order
Facts constituting to the filing of this writ petition are to the effect that Respondent No. 1/Chief Administrator, Auqaf, Government of Punjab, Lahore, vide Notification dated 1.10.1998 in exercise of powers conferred under Section 7 of Punjab Waqf Properties Ordinance, 1979 had taken over and assumed the administration control management, and maintenance of Jamia Masjid Tehraran situated in the revenue estate of Tehsil Talagang District, Chakwal on an area of 14 Marlas containing 8 shops bearing Property No. B-I-22-A. Through the said notification, Respondent No. 2 was appointed as Manager of the said Waqf to manage and maintain the same. Vide, the powers conferred under Article 61 of the Punjab Auqaf Department Delegation of Power (Rules 1960), a committee was constituted consisting of 9 members including that of Chairman and the Secretary vide Notification No. 2534 dated 15.10.1998. The notification dated 1.10.1998 taking over the control of the said Mosque had been withdrawn by a subsequent notification dated 27.3.2004 on the reference received from District Nazim, Chakwal and a petition from Namazian of the Mosque. The petition filed by one Haji Abdul Hameed under Section 11 of Punjab Waqaf Properties Ordinance, 1979 before the District Judge, Chakwal challenging the Notification dated 15.10.1998 was also dismissed as withdrawn on 26.3.2004 and the Notification had attained finality.
Malik Baz Khan and 5 others had filed C.M. No. 1111/2004 for impleading them as respondents in the writ petition and providing for opportunity of hearing.
Learned counsel for the petitioner contended that Respondent No. 1 was not empowered to rescind, cancel or withdraw his earlier Notification, which has taken effect and a vested right has been accrued to the petitioner and the notification could be set-aside by the District Judge, if a petition within 30 days of the publication of the notice is preferred before him. Further contended that the Respondent No. 1 has delegated his powers to the Committee under the rules and that the principal of locus poenitentiae is attracted to the present case. Further contended that the notification issued on the direction of Minister or Chief Minister recalling the earlier notification cannot sustain in law. In this context he has placed reliance on the case of Muhammad Tufail and two others vs. Chief Administrator of Auqaf and two others (1991 M.L.D. 303).
Learned counsel for the application in C.M. No. 1111/2004 has vehemently opposed the arguments of the learned counsel for the petitioners contending that Respondent No. 1 was competent to re-call or rescind the earlier notification under the law. Further contended that the Mosque was being run by registered Anjuman `Ahle Sunnat Wal Jamaat' Jamia Masid Tehraran Talagang and the petitioners now are not allowing the people of the other sect to say their prayers in the mosque. Further contended that on the request of the District Nazim, Respondent No. 1 has withdrawn the earlier notification. Further contended that it was not an evacuee trust property.
I have heard the arguments of the learned counsel for the parties and perused the record.
The Notification dated 1.10.1998 had been issued for taking over the control and management of the said mosque under Section 7 of the Punjab Waqf Properties Ordinance, 1979. Lateron it was withdrawn by a subsequent Notification.
The question that boils down for determination in this case is that whether the notification issued under Section 7 with regard to the "Waqf Property" can be rescinded, altered, varied, recalled or withdrawn by the Chief Administrator Auqaf.
Remedy under Section 11 of the Ordinance has been provided to any person claiming any interest, in any Waqf property in respect of which a notification has been issued under Section 7 may, within thirty days of the publication of such notification petition the District Court within whose jurisdiction the waqf property or any part thereof is situated for a declaration:--
(a) that the property is not waqf property;
(b) that the property is waqf property within the limits stated in the petition.
Provided that, notwithstanding, anything contained in any law for the time being in force, or in any custom or usage, or in any decree, judgment, or order of any Court or other authority no such petition shall lie in respect of any interest in the income, offerings, subscriptions or articles, referred to in Explanation 4 to clause (c) of Section 2, or the services or ceremonies (Rasoomat) mention in Section 7.
(2) The District Court may, for reasons to be recorded, refuse to issue any process for compelling the attendance of any witness for the purpose of examination or the production of any document or other thing if it considers that it has been made for the purpose of vexatious or delay.
Whereby any [Central Act] or Regulation, a power to (issue notifications), order rules, or bye-laws is concerned, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend vary or rescind any (notifications), orders rules or bye-laws so issued).
It means that the authority competent to make order has the power to undo it, but the order cannot be withdrawn or rescinded once it has taken legal effect and certain rights are created in favour of any individual and principle of "locus poenitentiae" would be available.
As to the arguments of learned counsel for the petitioner that a vested right has been accrued in favour of the Committee. It is suffice to say that no such notification delegating the power of Chief Administrative has been placed on the record. Mosque is meant for the people to offer their prayers. It is the right of every Muslim to enter into the Mosque and make his prayer in accordance with the injunctions of Quran and Sunnah according to his own religious school of thought. No restriction can be imposed on any person restraining him to enter into the Mosque and joining he religious ceremonies. The Mosque is for all Muslims of any sect because the Mosque is the house of `Almighty Allah'. The right is vested to all the Muslims not to a particular person sect. Group or particular school of thought.
The arguments of the learned counsel for the petitioners is that the notification dated 1.10.1998 has taken legal affect and a vested right has accrued to the petitioners and the Chief Administrative Auqaf has delegated the powers to the Committee constituted by him. The delegation of powers Rule 1960 has empowered the Chief Administrative Auqaf to delegate his powers. Section 3 of the Ordinance deals with the delegation of powers which for ready reference is reproduced as under:--
Delegation of powers.--(1) Subject to provisions of the Ordinance and the rules made there under, the power specified in Column 2 of the Schedule appended hereto shall be exercised by the officer mentioned against each in Column 3 to the extent referred to in Column 4 thereof.
(2)
Section 4 of the Ordinance contemplated that the Chief Administrator may, by an order notified in the official Gazette, delegate any of his powers under the Ordinance to an administrator or a Deputy Administrator and may, subject to the provisions of the Ordinance, specify in the said order the manner in which such powers may be exercised.
From plain reading of provisions of Section 4, of the Auqaf Delegation of Powers Rules, 1960, it is manifestly clear that the power of Chief Administrator can be delegated to any one to an Administrator or a Deputy Administrator and subject to the provisions of the Ordinance. It would mean that his power cannot be delegated except the officers mentioned in Rule 4 of the Delegation of Powers Rules 1960.
So far as the aspect of delegation of powers to the Committee is concerned, the delegator is empowered to recall his power from the delegatee. Delegation does not imply parting with the powers of the person, who grants the delegation.
In the above circumstances, it is observed that as per General Clauses Act, the power of rescission or recall of the earlier order is always available to the authority passing an earlier order. In this context reference can be placed to the case of Muhammad Zakir Khan vs. Government of Sindh and others (2004 SCMR 497). The Administrator has recalled the earlier notification on the request of reference received from the District Nazim Chakwal and the petition from the Namazian of the Mosque. It was in the interest of all the Muslim Community of that area. There is no mention in the notification issued by Respondent No. 1 dated 27.3.2004 that the said notification was issued under the direction of any minister. In this respect, facts of the case relied upon by learned counsel for the petitioner is not applicable to the present case. If for the sake of arguments, it is accepted that some political figure/authority has desired to recall or rescind the earlier notification. The Chief Administrator Respondent No. 1 was competent not to comply with any such direction or instruction. From perusal of notification, it seems that the Administrator while issuing the said notification for withdrawal of earlier notification dated 1.10.1998 has applied his own mind accepting the request of the people of the area. Learned counsel for the petitioners has not been able to persuade this Court to issue a writ in favour of the petitioners.
For the foregoing reasons, this petition having no force is dismissed and issuing of rule `nisi' is declined.
(A.A.) Petition dismissed.
PLJ 2006 Lahore 539 [Multan Bench Multan]
Present: Sh. Hakim Ali, J.
MIRZA MUHAMMAD ARSHAD--Petitioner
versus
EXECUTIVE DISTRICT OFFICER (REVENUE) LODHRAN and 7 others--Respondents
W.P. No. 3698 of 2004, decided on 18.1.2005.
(i) Constitution of Pakistan, 1973--
----Arts. 199 & 212--Civil servant--Jurisdiction of High Court--Extent of--Question of eligibility--Service Tribunal has got jurisdiction in matter of eligibility of civil servant relating to terms and conditions of service--Service Tribunal however, has no jurisdiction relating to question of fitness of a civil servant to be appointed, promoted or to hold a particular post--Where any civil servant challenges fitness of any official/rival to hold a post or to be not fit to be appointed in comparison to him, in such event jurisdiction of High Court can be invoked in terms of Art. 199 of Constitution and applicability of Art. 212 barring jurisdiction of High Court would vanish. [P. 544] A
(ii) Constitution of Pakistan (1973)--
----Art. 199--Petitioner's claim to be promoted as compared to junior officials, who were not fit to be promoted--No cogent reason has been adduced as to why petitioners who were admittedly senior from some respondents were ignored and as to how juniors were promoted--Petitioners could not have been deprived for the reasons that their ACR and other documents were not completed from being considered to be promoted in as much as duty to fill up ACR lie with superior officers--Order in question whereby respondent were promoted and petitioners were not consideration for promotion was declared to be illegal and unlawful departmental promotion committee was directed to make fresh decision in accordance with law and rules on the subject. [Pp. 544 & 545] B & C
2003 SCMR 1241; 1999 SCMR 2828; 1999 SCMR 2186; 2004 SCMR 145; 2004 SCMR 35; 1997 PLC (CS) 412; 1997 PLC (CS) 77; NLR 1995 Service 1; NLR 1995 Service 89; PLD 1994 SC 539; 1997 PLC (CS) 319; 1997 PLC (CS) 127; 1990 SCMR 927 and 1995 PLC (CS) 151, ref.
Mr. Tariq Zulfiqar Ahmad Chaudhry & Mr. Iqbal Hussain Pawar Hajwari, Advocates for Petitioner.
Mr. Tahir Mahmood, Advocate and Mr. Muhammad Ramzan Khalid, Addl. A.G. for Respondents.
Date of hearing : 27.10.2004.
Judgment
Through the instant judgment, I intend to dispose of the following writ petitions because of their common origin, common fact and common points of law involved therein:--
(i) W.P. No. 3698 of 2004/MN (Mirza Muhammad Arshad vs. E.D.O (R) Lodhran & 7 others.
(ii) W.P. No. 3849 of 2004/MN (Muhammad Khizar Hayat vs. E.D.O. (R) Lodhran and 7 others.
(iii) W.P. No. 3880 of 2004/MN (Rana Muhammad Jamil and another vs. E.D.O. (R) Lodhran and 7 others.
(iv) W.P. No. 4011 of 2004/MN (Shamshad Ali vs. D.C.O. Lodhran and two others).
(i) Mr. Muhammad Iqbal son of Muhammad Ahmad.
(ii) Mr. Muhammad Bakhsh son of Ghulam Qadir.
(iii) Mr. Muhammad Saleem son of Siraj Din.
(iv) Mr. Allah Bakhsh son of Ghulam Qadir.
(v) Mr. Allah Dad son of Ghulam Qadir.
(vi) Mr. Akbar Ali son of Faiz Muhammad and
(vii) Mr. Zafar Iqbal son of Abul Raful.
The above mentioned patwaris, who were selected as Kanungos, were appointed through order dated 16.6.2004 against the place of postings mentioned in that order, by the Executive District Officer (Revenue), Lodhran. This order caused annoyance to the writ petitioners, the Patwaris, who had claimed seniority-cum-fitness but were ignored and persons who were junior to them but were promoted, so they filed the above noted writ petitions.
"In Writ Petition No. 3698/MN, as per learned counsel, except Respondent No. 2/Muhammad Iqbal, Kanungo all other respondents/selectees were junior to the writ petitioner while Respondent No. 6, Allah Dad, Respondent No. 7, Rana Akbar Ali and Respondent No. 8, Zafar Iqbal had only participated in the Kanungo course examination but the result had not been declared as yet but they were considered and selected as such. Making grievance to this manner and method of selection, it has been stated by the learned counsel that persons who had still not passed the examination, could not be entered into seniority list showing them to have passed the examination, and the consideration of their case was the clear partiality on the part of Officer, preparing the seniority list as well as the Departmental Promotion Committee selecting them. The seniority list was incorrectly prepared and it could no be termed as a fair and transparent/promotion and it was liable to be cancelled and declared illegal.
In all the other writ petitions, the same grievance with difference of the persons who were not senior to the writ petitions and were promoted, was agitated.
It has also been argued by the learned counsel that in the comments which have been submitted by District Co-ordination Officer, Lodhran, it has been admitted that the claim of Shamshad Ali, petitioner was correct and list was liable to be cancelled as the prayer of the writ petitioners was fair and just.
(a) The Executive District Officer (Revenue) was the competent authority and the District Co-ordination Officer, Lodhran had nothing to do with the promotion of Patwaris. Referring to Rule 16 of the Punjab District Government (Rules of Business), 2001 it has been stated by the learned counsel that the District Co-ordination Officer, Lodhran does not figure any where in that Rule.
(b) According to Article 212 of the Constitution of Islamic Republic of Pakistan 1973, the matter relates to "Terms and Conditions" of a civil to entertain or adjudicate upon the matter in dispute. Learned counsel has referred to the following decisions for this proposition :--
(i) 2003 SCMR 1241 (Superintendent Engineer Highways Circle, Multan and others vs. Muhammad Kursheed and others).
(ii) 1999 SCMR 2828 (Sarfraz Ahmad Hiraja vs. WAPDA and others).
(iii) 1999 SCMR 2186 (Sajjad Ahmed Javed Bhatti vs. The Secretary Establishment Division and 11 others).
(iv) 2004 SCMR 145 (Nazakat Ali vs. WAPDA through Manager and others).
(v) 2004 SCMR 35 (Zia Ghafoor Piracha vs. Chairman Board of Intermediate and Secondary Education, Rawalpindi and others).
(vi) 1997 PLC (CS) 412 (Province of Punjab vs. Shah Muhammad Chaudhry).
(vii) 1997 PLC (CS) 77 Govt. of the Punjab vs. Rana Ghulam Sarwar Khan and others).
(viii) NLR 1995 Service 1 (Dr. Naeem Akhtar vs. Dr. Ahmad Salman Waris, etc.)
(ix) NLR 1995 Service 89 (Abdul Wakeel Malik vs. Ashfaq Ahmad Qureshi).
(c) Clause (b) of sub-section (2) of Section 8 of the Punjab Civil Servants Act, 1974 provides that in the case of non-selection post, promotion has to be made on the basis of seniority-cum-fitness. So, the power was vested with the concerned Officer to select proper persons on the basis of seniority-cum-fitness and as the Departmental Selection Committee has selected appropriate candidates, therefore, the matter requires factual inquiry as to whether the persons selected were proper persons to have been promoted or not, which controversy cannot be undertaken in the writ jurisdiction. So, the writ petitions were not competent.
PLD 1994 SC 539 (Muhammad Anis and others vs. Abdul Haseeb and others).
Referring to para 15 of the judgment of the Hon'ble Supreme Court, it has been stated by the learned Addl. A.G. that the Service Tribunal had the exclusive jurisdiction with regard to the appointment or promotion. So, the writ petitions were not competent.
Replying to the arguments of the learned Addl. A.G. and learned counsel for the respondent, it has been stated by learned counsel for the petitioners that according to Section 4(b) of the Service Tribunal Act, 1973, the words are that no appeal shall lie ot a tribunal against an order or decision of departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade". Basing his arguments on this clause (d) of Section 4 of the Service Tribunals Act, 1973, learned counsel has argued that the promotion to a higher grade does not fall within the jurisdictional compass of Service Tribunal, therefore, the petitioners had got no other remedy except to approach this Court for the redressal of their grievances. He has also given a long list of citations i.e., 1997 PLC (CS) 319 (Ateeq Khanzada vs. The Secretary Education), 1997 PLC (CS) 127 (Muhammad Ahsan-ul-Haq vs. Secretary to Government of Pakistan Ministry of Interior, Islamabad and 11 others) 1990 SCMR 927 (M.A. Rafique vs. Managing Director (Powers) WAPDA and 7 others) and 1995 PLC (CS) 151 (Muhammad Raees (Azam) vs. Government of Balochistan through Chief Secretary, S&GAD). On the strength of these authorities, learned counsel has stated that this Court has got the jurisdiction to declare the impugned order dated 16.6.2004 of Respondent No. 1 EDO (R), Lodhran, to be illegal and unlawful.
The hearing of arguments, perusal of record, the survey of law on the subject, the survey of cited authorities, and their analysis has brought me to conclude with the following results:--
The most important question for resolution in these writ petitions is as to whether this Court has got jurisdiction to upset the selection made by the Departmental Promotion Committee and the consequent order dated 16.6.2004 passed for the promotion of the patwaris as Kanungo, by the E.D.O. (R) Lodhran. The wording of Clause (d) (i) of Section 4 of the Service Tribunals Act, 1973, are of vital importance which are as under ".......an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade." (Underlining is mine) Whether the cases of the writ petitioners fall within the ambit of this clause or not? To consider the meaning and connotation of these words "determining the fitness" The apex Court has expounded and has laid down the criteria for making the differentiation between the words "Eligibility" and "Fitness" in PLD 1994 SC 539 (Muhammad Anis and others vs. Abdul Haseeb and others). Unfolding the meaning of eligibility, it has been set down by the Hon'ble Supreme Court that question of eligibility relates primarily to the terms and conditions of a Civil Servant and their applicability to the Civil Servant concerned, while the question of fitness is a subjective evaluation on the basis of objective criteria which substitution for an opinion of the competent authority is not possible by that Service Tribunal or of a Court. So, when there is a question of eligibility, then the Service Tribunal has got jurisdiction but in the case of question of fitness, it does not lie with the Service Tribunal to decide the question of fitness of a civil servant to be appointed, promoted or to hold a particular post. When any civil servant challenges the fitness of an official/rival, to hold a post or to be not fit to be appointed in comparison to him, in such an event the jurisdiction of this Court comes into operation and applicability of Articles 212 of the Constitution of Islamic Republic of Pakistan, 1973, barring the jurisdiction of this Court vanishes and cannot be made applicable to a case. Viewed from this angle and perspective and criteria laid down by the Hon'ble Supreme Court in the above noted citations, the case of petitioners falls within the confines of the determination of fitness and takes away the jurisdiction of the Service Tribunal to adjudicate upon that dispute through an appeal to be filed by a civil Servant. The cases of the petitioners that in the matter of promotion they were to be promoted as compared to the junior patwaris who were not fit to be promoted, the allegation that Respondents Nos. 6, 7 and 8 had not passed kanungo examination at the time of preparation of seniority list of the patwaris for the purpose of promotion to be post of Kaungo, the inclusion of their names theirin, was arbitrarily made and that these persons were not fit to be considered or promoted, cannot be lost sight of by this Court. No consent reason has been adduced, as to why these petitioners, who were admittedly seniors from some of the respondents, were ignored and as to why and how the juniors were promoted. If the reason was that the ACRs or other documents were not completed, so their cases were not considered, this ground could not be allowed to be made a sole foundation to deprive the petitioners from being considered to be promoted, because the duty to fill up the ACRs lies with the superior Officers. The remissness of superior cannot be made a ground to deprive a civil servant and on this basis their cases could not be ignored from consideration. Before preparation of list for candidates to be considered for promotion, sufficient period for filling and submission of ACRs was to be granted to the officials, if it was not submitted already well in time or had missed due to some reason. Therefore, after perusal of decision above noted and relying upon PLD 1994 SC 539 (Supra). I consider it a fit case for exercise of jurisdiction conferred upon this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
Consequently, the order dated 16.6.2004 passed by E.D.O. (R), Lodhran on the recommendation of Departmental Promotion Committee is held to be illegal and unlawful and the E.D.O. (R), Lodhran is directed to order the preparation and completion of service record of all the candidates/officials of revenue department (Patwaris who were qualified at the time of convening of earlier Departmental Promotion Committee and then to re-examine/reconsider the cases of the petitioners alongwith other qualified respondents, by the Departmental Promotion Committee and for fresh decision, keeping in view the rules, regulations and the law on the subject within shortest possible time. With this direction/observation, the writ petitions are accepted but with no order as to costs.
(A.A.) Petition accepted.
PLJ 2006 Lahore 545
Present: Syed Sakhi Hussain Bukhari, J.
MUBARIK ALI and 6 others--Appellants
versus
MANZOOR HUSSAIN--Respondent
R.S.A. No. 44 of 2002, heard on 20.5.2005.
Specific Relief Act, 1877 (I of 1877)--
----S. 39--Civil Procedure Code (V of 1908), S. 100--Suit for cancellation of sale-deed and possession--Plaintiff's claim that sale-deed was forged document being never thumb marked by alleged vendor and that the consideration was paid to vendor, was not supported by evidence on record--Admittedly, sale deed was registered--Petition writer and local commissioner in their evidence claimed to have identified vendor at time of registration and such evidence was not controverted by plaintiffs--Evidence produced by plaintiffs shows that their claim such vendor was not fit to enter into contract of sale was not supported by any cogent evidence--Impugned judgment as affirmed by First Appellate Court was just and proper--No justification was pointed out to set aside the same, therefore, judgment, in question, were affirmed. [Pp. 547 & 550] A & B
Mr. Jahangir A. Jhoja, Advocate for Appellants.
Mr. Abdul Wahid Chaudhry, Advocate for Respondent.
Date of hearing : 20.5.2005.
Judgment
This RSA is directed against the judgment dated 30.4.2002 passed by learned Addl. District Judge, Lahore whereby appeal brought by appellants against the judgment and decree dated 28.7.1998 passed by learned Civil Judge, Lahore was dismissed.
ISSUES:
Whether the suit is not maintainable? OPD
Whether the plaintiffs have no cause of action and locus-standi to bring this suit? OPD
Whether the suit is improperly valued for the purpose of Court fee and jurisdiction? OPD.
Whether the plaintiffs are estopped by their own conduct to file the present Suit? OPD
Whether the description of suit property is wrong, if so, to what effect? OPD
Whether the sale in question is based on fraud, without consideration, void and liable to be rescinded? OPD
Whether the plaintiffs are entitled to get possession of the suit land? OPP
Relief.
The parties adduced evidence in support of their respective claims and learned trial Court dismissed the suit brought by appellants/plaintiffs vide judgment dated 28.7.1998. The appellants filed appeal thereagainst which was dismissed by learned Addl. District Judge, Lahore vide judgment dated 30.4.2002. Hence this RSA.
I have heard the arguments and perused the record.
As mentioned above Suba was owner of suit property and he transferred the same in favour of respondent vide sale-deed dated 7.7.1982. The case of appellants is that sale is based on fraud and that suba had never thumb marked the sale deed. However the case of respondent is that Suba transferred the suit property in his favour through registered sale deed after receiving its price. The plaintiffs/appellants had examined five witnesses in support of their version. They also produced documents Ex. P. 1 to Ex. P. 8. On the other hand respondents examined seven witnesses. The appellants have failed to produce any worthwhile evidence in support of their version. Admittedly sale-deed was registered through local commissioner (Ch. Riyassat Ali Bhinder, Advocate). He appeared as DW.2 and stated that he knew the parties before the registration of the sale-deed. He further stated that he knew Suba, vendor and Manzoor Hussain, vendee and he attested the sale-deed dated 04.7.1982 as local commissioner and the same bears his signature. The witness deposed that amount (sale price) was paid in his presence. Manzoor Hussain, Vendee paid said amount to Suba, vendor. He read over the sale-deed to Suba who admitted the same to be correct. He was in good mental and physical condition, Malik Arif Hussain Bajwa and Ghulam Hussain identified him. Muhammad Latif, petition writer also identified him and all the witnesses signed the sale-deed and proceedings were completed at the residence of Suba. DW.3 Muhammad Latif, petition writer, DW.5 Hassan Muhammad (brother of Suba) and DW.6 Muhammad Ashiq also supported the version of the respondent/defendant. However as mentioned earlier the plaintiffs/ appellants have failed to produce any worthwhile evidence in support of their case. They have not explained how fraud was committed. The case of appellants is that Suba, deceased was not in a position to sell the suit land but they have not examined any doctor in support of their version. They have produced death certificate as Ex. P. 7, according to which Suba died due to fever and heart attack. This document does not support the case of plaintiffs/appellants. Even otherwise according to this document (Ex. P.7) Suba was under treatment of Dr. Muhammad Jamil of Hanjarwal but plaintiffs/appellants have not examined him as witness. It shows that their claim is baseless.
It is pertinent to note that Mubarik Ali, plaintiff/appellant got registered criminal case against respondent and others regarding the sale deed in question but accused were acquitted vide judgment dated 24.5.1999. So in the circumstances of the case I find that learned trial Court had rightly dismissed the suit brought by appellants. The judgment dated 30.4.2002 shows that learned Addl. District Judge has decided the appeal after appraisal of entire material available on record. Paras Nos. 13 to 16 of the said judgment read as under:--
"13. It is the contention of the appellants that the impugned sale deed is based upon fraud and deceased Suba never thumb marked the impugned sale-deed. But appellant has neither specifically described that how fraud was committed and in what term the impugned sale-deed is a forged document. The evidence led by appellant is not sufficient in this regard. P.Ws. 2 to 4 have not stated anything regarding the commission of forgery and it is only the appellant himself appeared as P.W.5 and stated that the impugned sale-deed is fake and also stated that opinion was taken from Fingure Print Bureau who declared that thumb impression of Suba is fake and forged. But in this regard only oral evidence of appellants to an record and there is no corroboratory evidence addued by the appellants. Although the appellant has produced the copy of report of Fingure Expert in the statement of his counsel as Ext. P.4, regarding which objection was raised by counsel for the respondent. In order to produce the copy of report of Fingure Print Bureau, the appellant has not produced the Fingure Print Expert in evidence, therefore, that report as in-admissible. It is pertinent to mention that it is the case of the appellant that deceased Suba never thumb marked on the impugned sale-deed. But during cross-examination on the witnesses of respondent i.e., D.Ws. 6 & 7 is as under:--
During cross-examination of D.W.6, the suggestion was made "it is incorrect that Suba was ill and due to ailment, his thumb impression was marked on the impugned sale-deed." Similarly the respondent Manzoor Hussain D.W.7 was given suggestion "it is incorrect that thumb impression of Suba was procured when he was unconscious against his consent." This suggestion clearly shows that the appellant is not exactly aware of his case and he is giving suggestion against his pleadings. It is pertinent to mention that D.W.7 is also given a suggestion "it is incorrect that Suba neither executed sale deed nor marked his thumb impression on the sale-deed." The appellant is blowing hard and cold in the same breath which law does not permit. Further D.Ws produced by respondent as already discussed above, have specifically and categorically stated that Suba was in good health and he thumb marked on the impugned sale-deed before them.
It is also the contention of the appellant that the impugned sale deed was without consideration and in order to prove this, the evidence led by appellant is not sufficient, as P.Ws. 2 to 4 has not stated anything regarding consideration. They merely stated that Suba deceased was not in a need of money, which necessitated to dispose of his property through impugned sale-deed. Only P.W. 5 appellant has stated that the impugned sale-deed was without consideration. Execpt his sole oral evidence, there is no corroboratory piece of evidence on record. On the other hand, the respondent has produced Ch. Riyassat Ali, Advocate local commission D.W.2, who has categorically stated that the payment was made before me and purchaser Manzoor Hussain has made payment to the Suba seller. Similarly D.W.3 Muhammad Latif, petition-writer has also stated that payment was made by Manzoor Hussain to Baba Suba and Baba Suba handed over the amount to a person who was standing beside him. Similarly D.W.5 who is the brother of Suba stated that payment was made to Suba by Manzoor Hussain in front of me. The respondent himself appeared as D.W.7 who has stated categorically that he purchased the suit property in consideration of Rs. 2,00,000/- and Suba after receiving the amount delivered it to his brother Hassan Muhammad and nephew Ameer Ali. The evidence of appellant regarding consideration is not confidence inspiring and he has failed to prove that the impugned sale-deed was without consideration. It is pertinent to mention that appellant P.W. 5 in his cross-examination deposed, he had no knowledge that Suba was handed over the sale proceed to his nephew.
It is the contention of appellant and his witnesses P.W. 2 to 4 that Suba was not in need of money, therefore, he was not necessitated to dispose of his property. For selling property, need is not necessary if a person is competent and is not suffering from any infirmity then he can dispose of his property according to his will. In this regard it is pertinent to mention that appellant while appearing as P.W. 5 admitted in his cross-examination that deceased Suba sold his property of Shadiwal in his life time and that property was sold few months prior to the disputed property. He also admitted that the property of Shadiwal was sold in consideration of Rs. 7,00,000/-. If appellants' contention is admitted for the sake of arguments then he has not given any explanation of this fact that why Suba had sold his property of Shadiwal.
In the light of my above findings, I am of the view that the appellant has failed to prove that at the time of execution of impugned sale-deed, Suba was seriously ill which made him infirm and incapacitated and impugned sale-deed is based on fraud and without consideration, therefore, I upheld the findings of the learned trial Court on this issue."
It is well-reasoned judgment. There is no illegality or infirmity in the impugned judgments. Even otherwise as stated earlier appellants have not produced any worthwhile evidence in support of their case. So the findings recorded by learned Courts below on Issues Nos. 6 and 7 are affirmed. The findings on other issues were not challenged before learned Addl. District Judge. I find that impugned judgments are just and proper, therefore, there is no justification to set aside the same.
(A.A.) Appeal dismissed.
PLJ 2006 Lahore 550 (DB)
Present : Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ.
Mst. REHANA BASHIR--Petitioner
versus
Mst. BADAR JEHAN and others--Respondents
Rev. Appli. No. 1.C. of 1994 in RSA No. 63 of 1991.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 17--Amendment of pleading--Suo motu power of Court--Held: This provision does not equip the Courts with any power to allow vague/unspecified amendment of pleading without looking at the proposed amendment and that too in suo motu powers taking away rights of other contestants to opposite the same. [P. 554] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 17 read with S. 114 & O. XLVII R. 1--Conversion of declaratory suit into suit for specific performance--Prayer taken in review application against dismissal of R.S.A.--Held : Petitioner's suit for declaration, were dismissed but he had never opted to pray for such amendment before Trial Court, First Appellate Court or even before High Court during hearing of his second appeal--Such prayer could not be granted in review jurisdiction--Review petition was dismissed. [P. 555] B & C
PLD 1964 SC 337; AIR 1931 Lah. 595; PLD 1964 Pesh. 110; PLD 1978 Lah. 679; PLD 1985 Lah. 523 & 1996 MLD 1959, ref.
Mr. A.K. Dogar, Advocate for Petitioner.
Dr. Mohy-ud-Din Qazi, Advocate for Respondents.
Date of hearing : 16.1.2006.
Judgment
Instant petition under Section 114 read with Order XLVII, Rule 1 CPC prayed review/reconsideration of judgment dated 16.11.1993 by this Court in RSA No. 63 of 1991, whereby second appeal of the petitioner was dismissed in limine. The review was prayed on the ground that a declaratory suit could have been treated, one for specific performance and this relief should have been granted by the Court in Suo Moto powers, even in absence of any prayer or specific application in this behalf because after such treatment, the petitioner was only required to pay deficient Court fee on the plaint.
Succinctly, relevant facts are that Mst. Rehana Bashir, filed a suit for declaration to the effect that Saleh Muhammad deceased, the allottee of Plot No. 88-A, Peoples Colony, Faisalabad, had agreed to sell the plot for a consideration of Rs. 17,500/- vide agreement to sell dated 8.5.1969, who after receipt of the entire sale consideration, delivered possession of the plot to her, and thus, she had become owner of the same. She further pleaded that after death of Saleh Muhammad allottee his heirs/legal representatives had no right, title or claim to the suit plot. She also prayed permanent injunction restraining the respondents from getting the plot in question transferred from Urban Rehabilitation Department in their names or from interfering in her possession.
Respondents being defendants in the suit contested the same by filing their written statements, wherein bargain or the agreement to sell relied by the petitioner was denied and suit was claimed to be barred by provisions of Section 42 of the Specific Relief Act, 1887, as possession of the suit property was pleaded to be with the respondents. Certain other preliminary objections regarding maintainability and valuation of the suit were also raised. Controversial pleadings of the parties necessitated framing of issues, which included bona fide subsequent transfer in favour of Defendants Nos. 6 and 7. The learned Civil Judge who was seized of the matter after recording of evidence of the parties and in due appraisal of evidence on the file, dismissed the suit vide his judgment and decree dated 12.4.1989.
The petitioner being aggrieved of dismissal of her suit by the trial Court, filed an appeal before the learned Additional District Judge Faisalabad, but remained unsuccessful as the same was dismissed vide appellate judgment/decree dated 4.6.1991. The petitioner, thereafter, filed second appeal before this Court, (RSA No. 63 of 1991), but it also met the same fate of dismissal in limine vide judgment/decree-dated 16.11.1993. The petitioner, thereafter, filed instant review petition with the relief noted above, which was admitted to regular hearing and after completion of record was placed before us for final determination as the Hon'ble Judge who decided the RSA, had already retired.
We have heard the learned counsel for the parties and have examined the record, appended herewith. There is no cavil about the proposition that suit for declaration could have been converted into for specific performance if the same is made out from substance in the plaint, with the leave of the Court under Order-VI Rule 17 CPC, in case such conversion/amendment does not alter the cause of action or the nature of the suit. The other question which hinges for determination is as to whether a plaintiff who with due deliberations, insisted on decision of her suit, in the form filed before the Court cognizant of it, should itself directed the plaintiff to amend the plaint, the answer is in negative. The petitioner's suit was contested by the respondents and in the written statement it was alleged that agreement to sell dated 5.8.1959 was forged, fake and fictitious as no bargain was struck between their predecessor and the petitioner, besides the averments that the suit in its present form, was not maintainable as the petitioner was out of possession and her suit was bad by virtue of Section 42 of the Specific Relief Act, 1887. On the basis of these allegations in the written statement, specific issues regarding maintainability of suit and locus standi of the petitioner to file the suit were farmed i.e. Issues Nos. 1 and 6 (f) but petitioner did not pay any heed to the objections of the respondents and did not claim amendment of the plaint inspite of the fact that her suit remained pending before the trial Court from 27.7.1972 to 31.10.1988 and the petitioner was represented through an eminent civil lawyer of Faisalabad District Bar Association, namely Ch. Muhammad Bashir Advocate. The petitioner lost her case before the trial Court and consequently filed an appeal before the learned District Judge, where inspite of challenging the findings of the trial Court on Issue No. 1 and raising a detailed ground attacking findings returned by the trial Court on this issue, emphasized that the suit was maintainable in its present form and did not make any prayer that she may be permitted to amend her plaint. The petitioner, thereafter, came in second appeal before this Court, here she was represented again by a very competent civil lawyer namely Sh. Naveed Shaharyar, Advocate, who drafted the memorandum of appeal wherein, it was averred by challenging the findings on Issue No. 1 that the suit was maintainable in the form it was filed. The second appeal before this Court, was argued by Ch. Khursheed Ahmad, Advocate, who besides being amongst the Senior most civil lawyers, his competence cannot be doubted but he did not elect to move any application under Order VI Rule 17 CPC, even in second appeal or to argue that his suit may be allowed to be amended. We have noted that plea of amendment of paint for the first time was raised in review application brought against the judgment in RSA No. 63 of 1991.
Narrations in the foregoing paragraphs, did not mentally detain us for even a while to hold that the petitioner from the very inception of proceedings was conscious that her suit was being attacked inter alia on the ground that it cannot proceed, being simplicitor for declaration. Nature/character of both the plaints, one for declaration and the other for specific performance, are altogether opposed to each other because in suit for declaration the plaintiff has to make out his title as per Section 8 of the Specific Relief Act, 1887, by claiming that she be declared to be owner of the suit property, whereas in the suit for specific performance, the plaintiff has to assert own readiness/willingness to perform her part of contract and failure of her adversary to do the needful within the time specified. Elements of suit for specific performance unless are not pleaded, the plaint cannot see its success.
From the above resume, we have examined the plaint, as it was filed and the same with lengthy averments which run into 16 paragraphs, in substance is a suit for declaration simplicitor and by no standard the same can be treated as one for specific performance because narrations required for specific performance as detailed in the foregoing paragraph, are altogether missing. In this context Para 12 of the plaint has much relevance which is reproduced for convenience purposes and reads as under":
"12. That Defendants Nos. 1 to 5 have been asked several times to admit the transferee rights of the plaintiff in respect of said plot and building thereon but they are not prepared to do so. On the other hand they have applied to the Urban Rehabilitation Department, Lyallpur to transfer the said plot and the Building thereon in their favour. This wrong claim of Defendants Nos. 1 to 5 has necessitated this suit. They are also trying to interfere with the possession of the plaintiff."
Keeping in view the narrations of the plaint of the petitioner, dispute in the esteemed judgment by the Honourable Supreme Court in the case of S. Sibtian Fazli Versus Star Films Distributors (PLD 1964 SC 337), relied by the learned counsel for the petitioner for the proposition that suit for declaration can be treated as one for specific performance, related to dispute under a licence for import of a Bangali Film and the Licencee in anticipation of grant of import licence, entered into an agreement with M/s. Screen Classics of Calcutta for acquiring rights of distribution, exhibition and exploitation of that Film in East Pakistan for a period of 12 years who further entered in to an agreement with Star Film Distributors. On some dispute, Star Films Distributors filed a suit for declaration and mandatory injunction and their substance in the plaint justified conversion of the same into the one for specific performance whereunder it was pleaded on the basis of a clause of the agreement that in case the right of distribution of the film sold, was not available, the plaintiff would be entitled to have another picture of its own choice imported by the defendants, therein. Since, the Honourable Supreme Court after taking into consideration substance of the plaint in the precedent case, graciously permitted conversion but we after undertaking the same exercise are of the considered view that petitioner's plaint did not contain any substance for the conversion urged in the review petition.
A Division Bench of this Court in the case of Ram Asra and another versus Ullah Jawaya and another (AIR 1931 Lahore 595) declined conversion/amendment of Declaratory Suit filed on the basis of an agreement to sell, so as to make it for specific performance. Besides these judgments, reference can be made to the judgments by the Honourable Supreme Court in the cases of Mst. Khudeja Versus Jehangir Khan and 37 others (1971 SCMR 395 and 1977 SCMR 284).
We have also examined the provisions of Order VI Rule 17 CPC, which equipped the Courts with jurisdiction to allow amendment in pleadings in such manner, and on such terms, which would be necessary for determination of the real question in controversy between the parties. According to our humble view, these provisions do not equip the Courts with any power to allow vague/unspecified amendments of the pleadings, without looking at the proposed amendments and that too, in Suo Motu powers, taking away rights of the other contestants to oppose the same. Reference in this behalf cannot be made to the judgments in the cases of AIR 1939 Lahore 172, Shuja-ul-Mulk versus Firm Abdul Ghafoor Abdul-Qadim (PLD 1964 Peshawar 110), Karim Dad versus Arif Ali and another (PLD 1978 Lahore 679), Irfan Iqbal and 2 others versus Ch. Muhammad Hanif and 4 others (PLD 1985 Lahore 523), and Muhammad Saleem and another Versus Mst. Zarina Begum and 4 others (1996 MLD 1959).
We are not oblivious of the situation that in certain situations, Courts have inherit powers to allow the amendments in the pleadings but those should be of the nature of clerical/typographical mistakes, not resulting in change of nature/character of the suit and through these powers mis-description of parties or properties in dispute can be allowed to be corrected. In case before us, the petitioner insisted for grant of declaration of her ownership under the claimed sale, inspite of being represented through eminent lawyers at the Bar.
We while deciding this review petition are also alive to the situation that both the Courts below concurrently answered that the petitioner is not in possession of the suit plot which was never handed over to her under the claimed agreement to sell dated 5.8.1959 and of the fact that specific performance of such the denied agreement, after lapse of a period of almost five decades will not only be harsh but also would effect to subsequent transferees who were bona fide purchasers for valuable consideration and have raised constructions by incurring huge expense. We cannot also loose sight of increase in property, and the devaluation in currency on account of inflation, many folds, especially when after allowing the such amendment after five decades, the parties will have to be put again to trial by providing the respondents an opportunity to meet the pleas raised by the petitioner through the amended plaint and this exercise will again take the time already consumed.
The petitioner could not explain before us as to how an incompetent suit for declaration, on the basis of an alleged agreement to sell which created no title in the property was initially filed and as to why the same was throughout emphasized to be decreed in the same form. We have already detailed in the factual part of this judgment that the petitioner did not opt to pray for amendment before the trial Court, the First Appellate Court or before this Court during hearing of second appeal, thus we feel our self-unable to grant such prayer, in review jurisdiction. Even today in suo motu jurisdiction, as such exercise is not permissible in view of clear language of Section 14 and Order XLIII Rule 1 CPC permitting review on discovery of new and important matter/evidence which was not within his knowledge or could not be procured at the time of decision or on account of some mistake or error apparent on the face of the record but none all these pre-requisites were made out in this case.
For the reasons noted above, we are of the considered view, that no case for review of judgment dated 16.11.1993 in RSA No. 63 of 1991 was made out within the frame work of law, hence this petition being devoid of any merit is dismissed, with no order as to costs.
(J.R.) Petition dismissed.
PLJ 2006 Lahore 570
Present: Muhammad Muzammal Khan, J.
MAJOR ZAHID HUSSAIN--Petitioner
versus
CHAIRMAN ARBITRATION COUNCIL CANTONMENT BOARD LAHORE CANTT. and others--Respondents
W.P. No. 10765 of 2005, decided on 8.7.2005.
(i) Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 7--Copy of notice to Chairman--If any person who wishes to divorce her wife has to give notice in writing of having done so to the Chairman with a copy of notice to the wife in terms of S. 7 of Muslim Family Laws Ordinance, 1961. [P. 571] A
(ii) Muslim Family Laws Odinance, 1961 (VIII of 1961)--
----S. 7--Terms of--Chairman means of--Chairman concern means Chairman of Union Council or Town in which wife at the time of pronouncement of talaq was residing and not Chairman in whose jurisdiction wife subsequently shifted her abode. [P. 571] B
(iii) Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 7--Provision of jurisdiction--No provision of transfer of notice of divorce by Chairman Union Council/Town Council either in Muslim Family Law Ordinance, 1961 or in Rules framed thereunder and in absence of any such provision transfer of the matter regarding divorce by respondent was also with out jurisdiction. [P. 572] C
Sh. Shahid Waheed, Advocate for Petitioner.
Mr. Akhtar Masud Khan, Advocate for Respondent No. 3.
Mr. M. Rasheed Ahmad, Advocate for Respondent No. 1.
Mr. Muhammad Sharif, Secretary, Union Council Shahpur Saddar, District Sargodha.
Date of hearing : 8.7.2005.
Order
Instant Constitutional petition prayed that order dated 21.5.2005 passed by Respondent No. 1 may be declared illegal, void and of no legal consequence whereby he refused to issue certificate of divorce and transferred the matter to Nazim Union Council, Mohallah Imam Bakhsh, Tehsil Shahpur Saddar, District Sargodha.
Succinctly, relevant facts are that Respondent No. 3 was married with the petitioner on 25.3.1995 through a registered Nikah Nama at Walton Cantt. Lahore according to Injunction of Islam and provisions of Muslim Family Laws Ordinance, 1961. Relations between the spouses did not remain cordial and without any child out of the wedlock, resulted in separation. The petitioner while posted at Lahore where Respondent No. 3 also lived with him, on 7.2.2005 issued a notice of divorce under Section 7 of the Muslim Family Laws Ordinance, 1961 to the Chairman Arbitration Council, Cantonment Board, Lahore Cantt. Copy of which was remitted to Respondent No. 3 who according to him, was residing in the area of Lahore Cantonment, at that time.
Respondent No. 1 on receipt of notice of divorce, summoned Respondent No. 3 for 15.2.2005 and thereafter on each two days of hearing, received report of the process server that she was not living at the given address. Ultimately, notice to Respondent No. 3 was got published in daily newspaper "Pakistan" requiring her attendance on 25.4.2005 on which date an application was moved by Respondent No. 3 for transfer of proceedings to Nazim Union Council, Mohallah Imam Bakhsh, Tehsil Shahpur, District Sargodha as Respondent No. 3 was residing at that time within that area Respondent No. 1 without calling upon the petitioner to explain as to why matter be not transferred to Tehsil Shahpur as prayed by Respondent No. 3, directed the transfer being influenced by application of Respondent No. 3. The petitioner has challenged order of transfer, as noted above. Respondent No. 3 in response to notice by this Court has appeared and is represented through her counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Under law, if any person who wishes to divorce her wife has to give notice in writing of his having done so to the Chairman with a copy of notice to the wife in terms of Section 7 of the Muslim Family Laws Ordinance, 1961. To which Chairman such a notice is to be given for that matter, we will have to refer to the West Pakistan Rules under Muslim Family Laws Ordinance, 1961 whereunder Rule 3(b) is relevant and reads, as under:
(b) in the case of notice of talaq under sub-section (1) of Section 7, it shall be the Union Council of the Union or Town in which the wife in relation to whom talaq has been pronounced was residing at the time of the pronouncement of talaq; and
The above reproduced Rule clearly envisaged that the Chairman concerned means Chairman of the Union Council of the Union or Town in which the wife at the time of pronouncement of talaq was residing and not the Chairman in whose jurisdiction she subsequently shifted her abode.
According to the claim of the petitioner, Respondent No. 3 was residing within the area of Walton Cantonment, Lahore when he pronounced the divorce hence, he correctly remitted the notice to Respondent No. 1. The transfer order by Respondent No. 1 revealed that he without determining this aspect of the matter remitted the file to Shahpur, on a simple request of Respondent No. 3. There is no provision of transfer of notice of divorce by the Chairman Union/Town Council, either in Muslim Family Laws Ordinance, 1961 or in the Rules framed thereunder and in absence of any such provision, transfer of the matter regarding divorce by Respondent No. 1 was also without jurisdiction. Confronted with this legal position, both the learned counsel for the parties agreed that the transfer order of Respondent No. 1 may be set aside and case may be remitted back to him for fresh decision with a specific finding in view of the above legal position, touching his jurisdiction.
(R.A.) Petition accepted.
PLJ 2006 Lahore 572
Present: Muhammad Jehangir Arshad, J.
ABDUL KHALIQ and others--Petitioners
versus
Mst. SAIRAN--Respondent
C.R. No. 1768 of 2000, decided on 21.9.2005.
West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (V of 1962)--
----S. 2-A [added by Punjab Muslim Personal Law (Shariat) (Amendment) Act (XIII of 1983)--Death of last male owner in 1945--Property owned by deceased went to his widow under custom for maintenance--Second marriage by widow in 1950, was proved when Punjab Muslim Personal Law (Shariat) Application was made applicable in place of custom--Widow was thus, entitled to 1/4 share of estate left by her deceased husband who had died issueless--Plaintiffs being collaterals/nephews) of deceased were entitled to 3/4 share of estate left by last male owner--Provision of S. 2-A, having been incorporated in West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 by Act XIII of 1983, revision filed by petitioners claiming entire estate of deceased on basis of custom, was not maintainable and the same was dismissed on basis of Rule laid down by Supreme Court in PLD 1985 SC 407. [Pp. 567 & 577] A & B
PLD 2005 SC 511 and PLD 1985 SC 407, ref.
Ch. Abdul Wahid, Advocate for Petitioners.
Mr. Zafar Iqbal Ch., Advocate for Respondent.
Date of hearing : 16.9.2005.
Judgment
The facts briefly stated are that on the death of Sattar Muhammad in the year 1945 the estate left by him (fully described in the head note of the plaint) went to his widow namely Mst. Sairan Bibi under custom for maintenance. The petitioners who are nephews of said Sattar Muhammad (heirs of his brother Shah Muhammad) filed a suit on 7.12.1989 claiming that according to custom under which the estate left by their predecessor Sattar Muhammad was mutated vide Mutation No. 53 dated 3.1.1945 in favour of Mst. Sairan Bibi for her maintenance as a limited owner, the said limited estate had to terminate either on her remarriage or death, whichever was earlier and that since Mst. Sarian Bibi had contracted second marriage before the enforcement of Muslim Personal Law (Shariat) Application Act, 1948, hence she was not entitled to retain the said property as a limited owner and the property automatically stood transferred to the petitioners being the legal heirs of last male owner Sattar Muhammad and per custom in vogue at the relevant time the widow of last male owner was deprived to inherit even her legal share under Muslim Law. The suit was contested by Mst. Sairan Bibi through written statement, wherein she besides denying petitioners' claim that she contracted second marriage before enforcement of Punjab Muslim (Shariat) Application Act, 1948, specifically pleaded that she had contracted second marriage in the year 1950 and that the suit was malafide having been filed just to disinherit her from the estate left by her deceased husband Sattar Muhammad and that she being his widow was entitled to inherit the estate left by him to the extent of 1/2 share and she had been collecting her share of produce from the petitioners till the institution of the suit. The learned trial Court framed the following issues and put the parties at trial:--
ISSUES:--
Whether the plaintiffs are owners in possession of the suit land and entries in the jamabandi are against facts, law and liable to be cancelled? OPP.
Whether the plaintiffs have got no cause of action and locus standi to institute this suit? OPD.
Whether the suit is within time? OPP.
Relief.
The petitioners produced Muhammad Latif PW-1, Ghulam Sarwar PW-3, Muhammad Din PW-4 whereas Muhammad Khaliq one of the petitioners appeared as PW-2 and by tendering documents Ex. P-1 to Ex P-5, they closed their evidence. In rebuttal, Mst. Sairan Bibi appeared as PW-1, produced Muhammad Sattar DW-2, Muhammad Latif DW-3 and closed her case by tendering documents Ex. D-1 and 2.
On conclusion of the trial, the learned trial Court vide judgment and decree dated 29.4.1991 decreed petitioners' suit to the extent of 3/4 share of the suit property only and dismissed the same to the extent of remaining ¬ share holding that Mst. Sairan Bibi was entitled to inherit the estate of her deceased husband to the said extent according to Muslim Law of inheritance. The petitioners filed appeal against the above said judgment and decree of the learned trial Court and the learned Appellate Court vide judgment dated 16.4.1996 remanded the case to the trial Court after recasting Issue No. 1 and framing an additional Issue as Issue No. 1-A to the following effect:--
Whether Mst. Sairan Bibi was limited owner of the estate left by Sattar Muhammad? OPP.
1-A. Whether Mst. Sairan Bibi defendant had contracted second marriage with Muhammad Ali on 15.3.1948, if so, its effect? OPD.
On remand, the parties before the learned trial Court opted not to lead any further evidence on the above mentioned recast as well as additional issue and addressed arguments. Resultantly, the learned trial Court vide judgment and decree dated 13.6.1998 decreed the suit of the petitioners by holding that Mst. Sairan Bibi was a limited owner and that by contracting second marriage in 1947 she had extinguished her right and the petitioners being collaterals of Sattar deceased were owners of the entire property to the exclusion of Mst. Sairan Bibi. Mst. Sairan feeling aggrieved of the above mentioned judgment and decree of the learned trial Court filed an appeal which was allowed by the learned District Judge on 14.6.2000, whereby the petitioners were declared as owners of the suit property being heirs of Sattar Muhammad last male owner to the extent of 3/4 share but dismissed the same to the extent of remaining 1/4 share declaring Mst. Sarian Bibi as owner of the said property being entitled to inherit the estate of Sattar her deceased husband and last male owner of the said property under Muslim Law, hence this civil revision.
Mr. Abdul Wahid Chaudhry, learned counsel for the petitioners has argued that the learned Appellate Court acted illegally and with material irregularity by reversing the findings of the learned trial Court and accepting the appeal of the respondents declaring Mst. Sairan as the owner of suit property to the extent of 1/4th share as widow of Sattar Muhammad, the last male owner whereas, it is established from the record that Mst. Sarian contracted second marriage with one Muhammad Ali some time in the year 1947, hence her right to retain the said property left by her deceased husband Sattar Muhammad and to occupy the same as a limited owner, automatically stood terminated on her remarriage and per custom prevalent in the family of deceased Sattar Muhammad, the last male owner, she could not even lay her claim to the extent of 1/4th share over the suit property as widow of the deceased.
On the other hand, Mr. Zafar Iqbal, learned counsel representing the respondents has argued that neither the allegation of the petitioner that Mst. Sairan contracted second marriage before the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948, is established nor there is any evidence on the record to establish the existence of any valid custom in the family of deceased Sattar Muhammad, the last male owner, disentitling a widow to claim her legal share under the Muslim Law, after termination of the limited estate. By placing reliance on the case of "Muhammad Saleem Ullah and others versus Additional District Judge, Gujranwala and others" (PLD 2005 SC 511), learned counsel submits that after incorporation of Section 2-A in West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, custom was no more the rule of succession and property left by a Muslim deceased shall be deemed to have devolved under Islamic Law on the date of his death and all his legal heirs, who were in existence at the time of his death, would be entitled to inherit his property under the law of Shariah. Further submits that even the present Civil Revision was not maintainable after the incorporation of Section 2-A, referred to above and also in view of the law declared by the Hon'ble Supreme Court of Pakistan in the case "Abdul Ghafoor and others versus Muhammad Shafi and others" (PLD 1985 Supreme Court 407). The learned counsel has therefore, concluded his arguments by contending that findings of the learned Appellate Court do not suffer from any legal or material irregularity or any jurisdictional defect and the suit filed by the petitioner being malafide with the object of depriving the widow of her legal share in the estate left by her deceased husband, has rightly been dismissed by the learned Appellate Court to the extent of widow's share.
I have considered the arguments of learned counsel for the parties, scanned the available evidence and thrashed the relevant case law.
The ultimate analysis of above arguments and appraisal of evidence, leads met to determine the following three important points, in this Civil Revision:--
(i) Whether Mst. Sairan was holding/possessing the suit land as a limited owner under custom and contracted second marriage, if so when?
(ii) Whether there was any custom in vogure in the family of Sattar Muhammad deceased, the last male owner of the suit land, depriving the widow to her normal right of inheritance from the estate of the deceased in case of her remarriage or death, before the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948? And
(III) Whether the present Civil Revision is maintainable after incorporation of Section 2-A in the Punjab Muslim Personal Law (Shariat) Application Act, 1962?
So far as the first limb of Point No. 1 is concerned, there is no dispute about the status of Mst. Sairan that on the death of her husband namely Sattar Muhammad, the last male owner, his property stood automatically transferred to her under custom as a limited owner for her maintenance. There is also no dispute between the parties that Mst. Sairan contracted second marriage after the death of said Sattar Muhammad. However, the real controversy between the parties is as to when she contracted second marriage, whether before or after the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948. According to the petitioners she contracted second marriage some times in 1947, hence she was not entitled to claim any right of inheritance in the estate of her deceased husband under customs, whereas, the contention of respondent is that she contracted marriage in 1950 i.e. after the enforcement of above Act and was thus entitled to inherit her normal 1/4th share under the Muslim Law. Although, the findings of two Courts below on the point of time of second marriage of Mst. Sairan, are at variance yet the conclusions arrived at by the learned Appellate Court are more natural and based on proper appreciation of evidence. There is another important aspect of the case also i.e.. Abdul Khaliq, etc. the present petitioners filed an appeal against mutation in question i.e. Mutation No. 53 dated 3.1.1945 before the Assistant Commissioner/Collector, Toba Tek Singh and plea taken in the said appeal was that Sattar Muhammad deceased had divorced Mst. Sairan Bibi respondent in his life time. Copy of memo of said appeal is Ex. D-1. But, in the instant suit, a different plea has been taken with the object of depriving the respondent of her right of inheritance. I am, therefore, satisfied that while holding that Mst. Sairan contracted second marriage with Muhammad Ali in the year 1950, the learned Appellate Court committed no illegality or irregularity and the findings of the learned Appellate Court on this score are sustained.
Since, it is established that Mst. Sairan contracted second marriage in the year 1950 i.e. after the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948, hence, she was legally entitled to inherit her normal 1/4th share under the Muslim Law from the estate left by her deceased husband Sattar Muhammad, on the termination of limited estate. Reliance is placed on "Muhammad Saleem Ullah and others versus Additional District Judge, Gujranwala and others" (PLD 2005 SC 511). Even otherwise, the petitioners have brought no evidence on the record showing existence of any valid custom in the family of deceased Sattar Muhammad depriving widow of her normal share under the Muslim Law, in case of her remarriage or death and in the absence of any such evidence regarding existence of any such valid custom, the presumption would be that the family of Sattar Muhammad deceased was governed by Muslim Law on the termination of limited estate.
Finally, it is established that after the termination of limited estate, Mst. Sairan respondent was entitled to inherit 1/4th normal share under the Muslim Law and the property was mutated in her favour on the death of her deceased husband Sattar Muhammad for the purposes of maintenance only, hence the findings of the learned Appellate Court to this effect are also maintained being in consonance with the provisions of Section 2-A (added by Punjab Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983) in the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and this Civil Revision is therefore, not maintainable in the light of law declared by the Hon'ble Supreme Court of Pakistan in the case "Abdul Ghafoor and others versus Muhammad Shafi and others" (PLD 1985 Supreme Court 407).
The net result of above discussion is that this Civil Revision has no force and the same is accordingly dismissed, leaving the parties to bear their own costs.
(A.A.) Revision dismissed.
PLJ 2006 Lahore 577
Present: Syed Hamid Ali Shah, J.
M/s GRAYS OF CAMBRIDGE (PAKISTAN) LTD., SMALL INDUSTRIES ESTATE SIALKOT through CHIEF EXECUTIVE--Petitioner
versus
BOARD OF EMPLOYEES OLD-AGE BENEFITS INSTITUTION and 2 others--Respondents
W.P. No. 22902 of 1999, decided on 14.7.2005.
Employees Old-Age Benefit Act, 1976--
----S.33--Constitution of Pakistan (1973), Art. 199--Demand for payment of specified amount being contribution towards Old-Age Benefit for specific period--Petitioners' employees status as employees under S. 2(bb) of Act of 1976--Demand raised by respondent pertains to employees who do not fall within category of persons, who have been excluded under S. 47(F) of employees of petitioner are employees in terms of S. 2(bb) of Act of 1976--Petitioner is thus, not absolved from liability to pay contribution under Employees Old Age Benefits Institution Act, 1976. [P. 580] A
1983 PLC 198; 1980 PLC 888; 1961 PLC 432; 1988 SCMR 765; 1998 SCMR 1571 and 2001 SCMR 949 ref.
Rana Nasrullah Khan, Advocate for Petitioner.
Mr. Muhammad Anwar Bhinder & Mr. Wasim Anwar Bhindar, Advocates for Respondents.
Date of hearing : 10.5.2005.
Judgment
A demand for payment of Rs. 5,49,411/- was raised against the petitioner, being contribution towards the old age benefit for the period January 1991 to December 1992. The petitioner objected to calculation and a local commissioner was appointed who prepared his report on 22.11.1997. The matter was not resolved on the basis of report of local commissioner, resultantly the petitioner filed a petition under Section 33 of Employees Old Age Benefit Act 1976. Second report by another commission was submitted and Respondent No. 2, passed order dated 15.4.1999, wherein the petitioner was found liable to pay an amount of Rs. 2,43,313/- alongwith statutory increase making total of Rs. 3,64,970/-. A review application was filed by the petitioner, which was dismissed on 2.6.1999. The petitioner then filed appeal before Respondent No. 1 wherein the order dated 15.4.1999 of Respondent No. 2 was maintained to the extent of actual amount unpaid, while the amount of statutory increase was waived. The petitioner has through the instant petition, called in question, the orders dated 15.4.1999 and 11.9.1999, passed by the Respondents Nos. 1 and 2 respectively.
Learned counsel for the petitioner has contended that respondents have withdrawn all the demands except the charges/dues for outside processing. Respondents have placed reliance with regard to the definition of worker as contemplated in Section 2(bb) of the Act 1976. Learned counsel referred to various provisions of Act 1976 and argued that the contributions are to be collected from institutions for disbursement to insured employees. He placed reliance on Section 2(b) of the Act, 1976 and stated that contribution is sum payable in respect of insured person. Insurable employment as per Section 2(1) relates to person in employment in respect of whom contribution are payable. Section 3 provides that all employees be insured. Learned counsel claimed that combined reading of provisions of Act, 1976 provide that worker or employee, is only that employee who is insured. It was then contended that outside workers, comprise of small groups of persons, who in houses, use their own equipments and tools and also certain raw materials, do not fall within the definition of workman. Learned counsel has referred to the cases of "Abdul Aziz Noor Muhammad and others Versus Employees Old age Benefits Institutions" (1983 PCL 198), "Muhammad Umer and 25 others versus M.M. Isphahi Ltd." (1980 PLC 888) and "State of Kerela Versus V.M. Patel" (1961 PLC 432) to contend that persons employed to work under independent contractor are not under supervision and disciplinary control of establishment, they receive pay directly from the contractor and as such do not maintain the relationship of workers and employer with establishment.
Learned counsel for the respondent on the other hand has raised serious objection as to the maintainability of the petition. He has referred to the case of "Employees Old age Benefits Institution versus National Industrial Relation Commission" (1988 SCMR 765) to contend that EOBI has been established under Section 4(1) of Act of 1976, which provides old age benefits to industrial, commercial and similar organization. Such functions do not relate to any sovereign functions of state. Learned counsel supported the impugned orders and submitted that employees are defined in Clause 2(bb) of Act of 1976 and for the purpose of EOBI Act 1976, the definition of employees as contained in Section 2(bb) is only relevant. He in support of this contention has referred to the cases of "Lahore Race Club versus Deputy Director EOBI" (1998 SCMR 1571) and "Messrs Cawasjee and Sons versus Board of Trustees EOBI" (2001 SCMR 949).
Heard learned counsel for the parties and perused record.
Appellate Authority while passing the impugned order, has observed that employees under contract, convert the raw material supplied by establishment into finished good, at agreed rate therefore these employees are actually working in connection with the affairs of industry and come within the ambit of Section 2(bb) of the Act. The impugned orders do not suffer from any legal infirmity and resultantly do not call for any interference in writ jurisdiction.
The arguments of the learned counsel for the petitioner that the definition of employee as contemplated in Section 2(bb) of the Act of 1976 is not relevant, has no force. The apex Court has held the employer liable for contribution with regard to persons who have been found to be employees in terms of Section 2(bb) of the Act of 1976, in the case of 2001 SCMR 949 (supra). Any person in service of industry or establishment, whether employed directly or indirectly, falls within the definition of employee. August Supreme Court in the case of "Lahore Race Club versus Deputy Director, Employees Old Age Benefits Institution" (1998 SCMR 1571) has defined the employees:--
The definition of the term "employee" does not exclude from its operation the part-time employees engaged in one's service for wages or otherwise. Only such persons are excluded from the provisions of the Act, who fall within the purview of clause (f) to Section 47 of the Act which reads thus:--
"persons in the service of statutory bodies other than those employed in or in connection with the affairs of a factory (as defined in) Section 2(i) of the Factories Act, 1934 (XXV of 1934), (or a mine as defined in the) Mines Act, 1923 (IV of 1923).
"provided that workshops maintained exclusively for the purposes of repair or maintenance of equiptment or vehicles used in such statutory bodies shall not be treated as factories for the purposes of this clause."
The demand raised by respondent pertains to employees who do not fall within the category of person, who have been excluded under Section 47(f) of Employees Old Age Benefits Act 1976, therefore outside employees of the petitioner are employees, as envisaged by Section 2(bb) of the Act of 1976. Definition of the employee as interpreted by the learned counsel for the petitioner is not well founded. Thus the petitioner is not absolved from liability to pay contribution under Employees Old Age Benefits Institution Act, 1976.
This petition has no merits and is dismissed as such.
(A.A.) Petition dismissed.
PLJ 2006 Lahore 580
Present: Mian Saqib Nisar, J.
ABDUL QADIR KHAN and 12 others--Appellants
versus
MANAGING DIRECTOR, MILLAT TRACTORS (PVT.) LTD. and another--Respondent
L.A. No. 159 of 2004, decided on 20.6.2005.
(i) Industrial Relations Ordinance, 2002 (XCI of 2002)--
----S. 2 (x)(b)--Word, "employer"--Definition of--Word "employer" includes any person responsible for directions, administration, management and control of establishment concerned--Managing Director of company being head of institution and being chief executive is juristic person and is overall incharge of management and administration of company--Factory Manager is sub-ordinate to Managing Director, therefore, grievance notice served upon Managing Director was duly issued. [P. 587] A
(ii) Industrial Relations Ordinance, 2002 (XCI of 2002)--
----S. 46--Service of job of permanent nature against permanent post--Appellants serving in such capacity cannot be deemed to have no cause of action on termination of their service--Grievance petition were thus, competently filed by appellants. [P. 588] B
(iii) Industrial Relations Ordinance, 2002 (XCI of 2002)--
----S. 46--West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance (VI of 1968), S. O. 12(2)--Scope of grievance petition--No person would be allowed to prove his case beyond scope of his pleadings--No evidence, however, was produced that Appellants were working on permanent posts or that their jobs were permanent in nature--Plea of appellants that they were working on permanent posts or were permanent employees was not established on record. [Pp. 588 & 589] C
(iv) Industrial Relations Ordinance, 2002 (XCI of 2002)--
----S. 46--Employees of establishment engaged on daily basis--Termination of services--Employees claimed to be working on permanent post for more than statutory period whereafter they were to have been inducted on permanent basis--Employees however, did not take plea that respondents as a device and with object to defeat their rights of workmen class, kept them on daily basis and that amounts to fraud upon labour laws--Such plea having not been taken by employees Court refrained to dilate upon such aspect. [P. 589] D
1993 SCMR 105; 2003 PLC 443; 1997 PLC 446; 1997 PLC 451; 1991 PLC 912; 1982 PLC 20; 2005 SCMR 100; 2002 SCMR 878; 1996 SCMR 826; PLD 1978 Karachi 649 and 2000 PLC 325 ref.
Mr. Farooq Zaman Qureshi & Mr. M. A. Hamid Awan, Advocates for Appellants.
M/s Muhammad Saleem Sehgal & Muhammad Naeem Khan, Advocates for Respondents.
Date of hearing : 11.5.2005.
Judgment
The following appeals L.A. Nos. 159/2004, 160/2004. 161/2004, 162/2004, 163/2004, 164/2004, 165/2004, 166/2004, 167/2004, 168/2004, 169/2004, 170/2004, 171/2004, 172/2004, 173/2004, 174/2004, 175/2004, 176/2004, 177/2004, 178/2004, 179/2004, 180/2004, 181/2004, 182/2004, 183/2004, 184/2004, 185/2004 and 237/2004, involve common questions of law and facts and are directed against the single judgment of the learned Labour Court, whereby the grievance petitions of the appellants, were dismissed, therefore, all these matters shall be disposed off through this decision.
At the very outset, Mr. Farooq Zaman Qureshi, the learned counsel for the appellants has stated that the noted appeals fall into two categories; first are the cases, in which, the appellants had filed the grievance petitions, seeking their regularization in the service, on account of the expiry of the probationary period, whereas in the other category, the appellants challenged the termination of their employment. He, however, promised to provide a list in this behalf, but the needful has not been done. It may also be pertinent to mention that Mr. Saleem Sehgal, the learned counsel for the respondents, has vehemently controverted that any of the appellants has filed the grievance petition, on account of his alleged termination.
Be that as it may, their aspect shall be considered and determined, if it has any significance in the matter.
Briefly stated the facts of the case are, that the appellants after service of the grievance notices dated 14.4.2003 upon the Managing Director of the Millat Tractors Private limited (Respondent No. 1), filed grievance petitions before the learned Labour Court, stating therein that the appellants were employed in the Millat Tractors Ltd, against work and posts of permanent nature; they were designated as Technician, Crain Operator, Drivers, etc. in different sections of the respondents' factory and since the date of their respective appointment, they are performing their duties regularly; they have rendered 3 to 16 years regular service, but till date, have neither been treated as regular/permanent employees nor are being paid the benefits available to a permanent workmen. It is further stated in the petition, that although, by operation of law, the appellants have attained the status of permanent workmen on the completion of their statutory period of probation as envisaged under Standing Orders, Ordinance 1968, but in utter disregard and violation of the provisions of law, the appellants are being denied their valuable rights; that at the time of their respective recruitment, the required letters of appointment contemplating the terms and conditions of their service were not issued, obviously this was objected to avoid the payment of all those benefits, which are available to the permanent employees; the names of the appellants were not got registered with Social Security Department, the cards of employment were also not issue to them; the appellants infact are being discriminated, as they are not paid yearly bonuses; the amount of 5 % workers participation fund, which is paid to other factory workers; the appellants have not been even got ensured under the Standing Order 10 (b), which is mandatory requirement of law; they are not being granted the leave facilities annually or for the casual and other leaves and are made to work for more than nine hours a day without weekly holiday or sick leave allowed to them.
Thus, on the basis of the above facts, the following relief was claimed:--
"It is therefore, respectfully prayed that by accepting the present petition, the respondents may be directed to treat the petitioners as a permanent workmen from the dates, they completed the statutory period of probation, against the posts of permanent nature and be granted all the benefits available to permanent workman employed in the establishment. The respondents may also be directed to pay/grant the petitioner amount of bonuses, workers participation fund, leave facility, registration with employees old age benefits Incentive Scheme, Registration with Social Security institution and also registration for insurance under Ordinance 10(B) of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance 1968"
"The respondents may further be directed to pay the petitioners the arrears of the above referred bonuses.
Pending disposal of the petition, the respondents may be restrained from removing/retrenching or terminated the petitioners from service"
The petitions were resisted by the respondents and in their written reply, the pleas of limitation; the jurisdiction of the labour Court, mis-joinder of causes of action were raised and specifically it is mentioned that according to the contents of the grievance petition, at the best, the appellants are the daily wagers and therefore (i) Such daily wagers are not issued any letter of appointment, thus they do not complete probation as they do not work against any post of permanent nature (ii) They are paid their wages daily. They are not paid for weekly and gazetted holidays (iii) Daily wagers are hired by the Company as and when and whenever required by the Company, therefore, there is a time and again discontinuity in their engagements as Daily Wagers being no longer required. The averments of Paragraph No. 1 of the grievance petition, in which the assertion about the appellants working against a permanent post and performing the duties of permanent nature, has been made, were categorically and unequivocally denied, in reply, adding thereto "Suffice it to state that the petitioners worked with the Company, as Daily Wagers from time to time subject to the entitlement of a Daily Wager. They cannot hence, claim to be workmen of the company in law and facts, inasmuch as inter-alia they were not hired a Daily Wagers to work against any work or post of permanent nature."
On account of their divergent pleadings, the parties were permitted to adduce the evidence; the appellants in their respective cases, examined certain witnesses, they also either appeared personally or through attorneys and the trend of all these testimonies, is towards the proof of the factum that they have been working in the respondents' factory for a particular length of time, which is beyond the statutory period required for the probation and performing duties of the permanent character against a permanent post, but for extraneous reasons, they were not made permanent and are being kept as daily wagers. The respondents also examined Assistant Manager Legal as RW-1; certain documentary evidence was also brought on the record by the parties and on the conclusion of the trial, the learned Judge was pleased to dismiss the grievance petitions, mainly on three counts:--
Firstly: In the grievance petitions, no date of the accrual of cause of action has been mentioned; the appellants have not stated that as to when the cause of action first accrued to them; when allegedly did they completed their probationary period against a permanent post; they have also not mentioned that when second cause of action had accrued to them, when did they demanded their regularization as the permanent workmen and refusal by the management of the respondents' company was made, giving rise to the final cause of action, therefore, the Court held "The absence of said mandatory provision of law, will render the grievance notices and the petitions invalid and not maintainable under law and such grievance notices will not attract the jurisdiction of the Labour Court."
Secondly: The grievance notices, the service of which upon the concerned person i.e. the employer was sine qua non for the maintainability of the petition, have not been served upon the Factory Manager, rather the Managing Director of the respondents, therefore "The non-service of grievance notice to the employer by the employee will render this Court having no jurisdiction to pass any order regarding redressal of any grievance of the petitioners."
Thirdly: That the appellants have failed to prove that they have been working against permanent post for a long time without any break, and has attained the status of a permanent workman. According to the learned Judge, "they were under legal obligation to adduce evidence to the effect that they had been working continuously for over nine months or that any of them had ever completed the statutory probationary period against any particular post, which was sanctioned on permanent basis. They could conveniently summon record of the respondents establishment pertaining to the sanction and continuation of the posts on year to year basis so as to prove their plea that each one of them held the sanctioned post on permanent basis at least for the statutory period so as to enable them to assert eligibility to claim regularization of their service against particular post." On the subject, it was further dilated "No document, instrument, data or material was confronted with the RWs during the course of their cross examination, which could reveal that petitioners had occupied permanent posts for the statutory period. The aforementioned verbal evidence adduced in this respect, in absence of any corroboration does not inspite confidence. Under the circumstances, the petitioners have failed to discharge their onus to prove regarding their eligibility to be deemed/treated as permanent workmen."
On the basis of the above, as mentioned earlier, all the grievance petitions were dismissed through the impugned order dated 8.4.2004. Hence these appeals.
Mr. Farooq Zaman Qureshi, the learned counsel for the appellants, has argued that all the reasons propounded by the Labour Court, are erroneous and illegal. It is submitted that the grievance notice was served upon the Managing Director, who according to the Articles of Association, of the respondents is the administrative Head of the Establishment and is the person, who is responsible for the administration, management and the control of the establishment, therefore, squarely falls within the definition of the employer given in the Section 2 (x)(b) of the Industrial Relations Ordinance, 2002.
As regards the limitation and the cause of action, that the same is reaccuring in the nature and therefore, the appellants could serve the grievance notice upon the respondents according to their choice and the option about time, followed by the grievance petitions within 30 days, which is the admitted position in the matters.
On the proposition, whether the appellants were necessarily entitled to be regularized, as having completed their probationary period of nine months against a permanent post, it is argued that the jobs on which, the appellants were made to work as Daily wagers, were infact permanent in nature and the appellants throughout have been performing duties of permanent character; they have been paid salaries for the whole of the month, including weekly holidays, as also other public holidays; they were also paid bonus and therefore, for all intents and purposes, the appellants were the permanent employees.
Mr. Farooq Zaman Qureshi, has also made reference to certain provisions of the Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 (VI of 1968), such as Schedule 1, to submit that according to the classification of the workmen, there are five categories; (1) Permanent; (2) Probationers; (3) badlis; (4) temporary; (5) apprentices. Each class has been defined and the respondents are precluded to employ any person on daily wages, which shall tantamount to circumvent and defeat the statutory provisions of the law; he also argued that the respondents under Standing Order 2, were obliged to issue a ticket or a apprenticeship card to the appellant, which was not done. Under Standing Order 12(2), the employment of a workman whatever class he belonged could not be terminated without their being an order in this behalf and every workman was entitled to a notice about the termination of the service. But the above provisions have been deliberately flouted by the respondents, with the object that the appellants should not attain the fruits of the rights available to them, as the permanent workmen. Mr. Qureshi, categorically argued that such intentional actions and inactions/omissions on part of the respondents, is a fraud upon law. In support of his various contentions, learned counsel has relied upon the judgment reported as National Bank of Pakistan and another vs. Punjab Labour Appellate Tribunal 2 others (1993 SCMR 105 at page 111), Syed Nasir Abbas Naqvi vs. Punjab Lahore Appellate Tribunal (2003 PLC 443), United Bank Limited vs. Sindh Labour Appellate Tribunal Karachi and 42 others (1997 PLC 446). M/s Fauji Sugar Mills, Khoski, District Badin vs. Ali Nawaz and 2 others (1997 PLC 451). The President Manager FFC vs. Punjab Labour Appellate Tribunal, Lahore and 2 others (1991 PLC 908 at 912). Forbes Campbell & Co. Ltd. and 3 others vs. Bs. Habib ur Rehman and 2 others (1982 PLC 20 at 21 & 22) and Ikram Bari and 524 others vs. National Bank of Pakistan through President and others (2005 SCMR 100).
Further on his submission that every workman even a daily wager cannot be terminated, without the letter of termination, learned counsel has relied upon the cases reported as Govt. of Punjab and others vs. Punjab Appellate Tribunal, Lahore and others (2002 SCMR 878), Neimat Ali Goraya and 7 others vs. Jaffar Abbas, Inspector/Sergeant Traffic (1996 SCMR 826), Muhammad Aqil vs. Sind Labour Appellate Tribunal and another (PLD 1978 Karachi 649) and M/s Holiday Inn, Crowne Plaza Main Shahra-e-Faisal Karachi vs. Aftab Ahmed Siddiqui and another (2000 PLC 325).
Mr. Saleem Sehgal, the learned counsel for the respondents has supported the impugned judgments; he however, submits that according to the case of the respondents, their services have been eventually terminated, but the order of termination has not been challenged independently and even no amendment was sought in the pending grievance petitions, to claim relief against the alleged termination, resultantly, the grievance petitions in the situation, were rendered infructuous; he further submits that one of the essential facts, which is most expedient for the consideration is that according to the agreement between the respondent's company and the CBA of the Millat Tractor, there are 325 permanent workmen employed and this has been so admitted by Muhammad Ashraf, while appearing as AW-1 in the case of Pervaiz. vs. the respondents; the said Muhammad Ashraf, was the then Secretary General of the CBA and has also made reference to the said agreement. On the strength of the above fact, it is submitted that when the appellants were not working against either of above mentioned permanent post, they cannot under the law, seek the relief of their regularization or the permanent employment.
I have heard learned counsel for the parties. As regards the question about the service of the grievance notice is concerned, this is a mandatory requirement of law, and non-compliance thereof renders a grievance petition incompetent. However, the real question involved in these matters is not about the non-issuance of the requisite notice, but if it has been addressed/sent to the appropriate persons i.e. the "employer". Because according to Mr. Saleem Sehgal, it is only the Factory Manager of Millat Tractor, who had the power of hiring and firing and thus exclusively falls within the terms "employer". I have considered the definition of the word "employer" given in Section 2(x)(b) of IRO, 2002 which leaves no room for doubt that it includes any person responsible for the directions, administration, management and control of the establishment. Undoubtedly, the Managing Director of a company is the head of the institution, who being the Chief Executive, of a juristic person, is the over all incharge of the management and the administration of the company, whereas the factory manager is an Officer subordinate to him, thus if under the law, the purpose of the grievance notice is that a workman instead of rushing to the Court straightway, which may involve expenses and cause botheration to a poor man, should in the first instance, make an attempt to approach the employer for the redressal of his grievance and that may solve his problem, the Chief Executive was the right person, to whom the notice should be sent. And the Chief Executive on account of his superior position, could either himself or through the Board of Directors, take a conclusive decision, particularly about the policy matter of making the daily wager as permanent or not, or he could conveniently refer or send the matter to the Factory Manager, an officer subordinate to him, for an appropriate action. Therefore, in view of the broad spectrum of the definition of "Employer" the purpose of the law behind the issuance of the grievance notice, the same issued to the Chief Executive, can be held to have been issued to an authorized person, and thus on account of a technical reason, the grievance petition could not be dismissed. Therefore, I am constrained to hold that the grievance notice was duly issued and the reasoning propounded by the learned Labour Court, to non-suit the appellants on this ground, cannot sustain and is hereby set aside.
As regards the question, whether the cause of action, in favour of the appellants, is re-accruing or was the time bound and therefore, having not pressed for their permanent employment immediately on the completion of the probationary period, if the claim of the appellants is rendered out of/beyond limitation, suffice it to say that if a workman, who is working against a permanent post and performing the duties of a permanent nature and has successfully completed his probationary period, but does not promptly press for his permanent employment, may be under the fear to avoid a situation of earning a displeasure of his employer, if the later is not ready and willing to confirm him immediately, rather continues to service silently with an object to inspire more confidence and trust of the employer, shall not loose his right to be made permanent, only for the reason that he has been some what indolent, because the principles of equity regarding delay in enforcing the statutory rights, the rules of waiver and estopple, etc, shall not come in his way, unless it is a case of some express or overt act on part of the workman, which brings the matter within the purview of the above doctrines, and the appropriate defence is set out by the employer in this behalf in the written statement and is also able to prove the same. However, this position is conspicuously missing in the present case. Therefore, the workman, who is either a probationer or a temporary employee and is otherwise qualified for the permanent recruitment, undoubtedly, shall have a right at any point of time, but during the continuity of his service to ask his employer to make him permanent and if the needful is not done, legal recourse may be adopted without there being any danger of limitation. The grievance notice in these cases, was served upon the respondents on 14.4.2003 and there is no discord between the parties that the grievance petitions were filed within a period of one month as prescribed by Section 46 of the IRO 2002. Therefore, subject to the rule and the proof about their continuity in service of a job of the permanent nature, against a permanent post, the appellant cannot be said to have no cause of action for the reasons mentioned by the Labour Court, rendering their petitions either incompetent or out of limitation. Therefore, the view of the learned Labour Court in this regard, too cannot sustain.
To my mind, the key, fundamental and pivotal question involved in the matters is, whether the appellants were working against the permanent posts and were performing the duties of permanent nature, in this regard, the onus was upon the shoulder of the appellants. As has been mentioned while narrating the facts, that in their petitions, the appellants stated as working in the respondents' factory as the technicians, drivers, crane operators, storekeeper, etc and the length of their service, being 3 to 16 years. But, they themselves have conceded of not receiving any salary for the Holidays, or the bonus, which was given to the permanent workmen. They however, attempted to improve their case in their evidence, e.g. when Abdul Qadir, one of the appellants, appeared in the case titled Abdul Qadir Khan, etc. vs. Millat Tractors, etc, as PW-1, and states that "All of us used to get our salaries on monthly basis. On the 1st or 2nd of each succeeding month, the cashier used to come to our machine Division, where he used to give us our salaries on the monthly basis after obtaining our signature. We used to get two weekly holidays namely Saturday and Sunday and we used to get salaries for the said holidays. We also used to get salary for the public holidays like Eid, 23rd March and 1st May, etc. We were given computer cards when we used to enter in the factory through Gate No. 4 and we used to return these cards on the gate of out way back after duty hours. We used to get bonus of Rs. 700/- on each Eid. The Eid bonus amounts were given to the workers by the cashier after obtaining their signatures." But this statement is not only beyond the scope of the petitions, rather contradictory thereto. Therefore, the rule that no person shall be allowed to prove his case beyond the scope of his pleadings, is squarely applicable to the matters in hand. Furthermore, except their own statements or in one or two cases, the statement of the Union Leaders, there is no independent or probable evidence to prove that the appellants were working on the permanent posts and their jobs were permanent in nature, meaning thereby that without the appellants or any other person working on that specific assignment, the respondent could not accomplish their object, e.g. if there were 5 cranes in the company, and all have to be necessarily operated daily, but only two operators were recruited on permanent basis and remaining three were kept on daily wages but they are performing their duties skin to the permanent employees, obviously, the post and its nature is permanent in character and thus on the expiry of the requisite period, the daily wagers shall become entitled to be made permanent. This also could be true for the technicians, machine-men, helpers, etc. But for the above, the appellants were required to establish on the record, the essential requirements of the respondents for particular assignments/jobs and to show the shortfall of the permanent employees. But this was not done through the production of any independent evidence. The record of the company was never summoned before the trial Court and even no effort was made in this behalf in appeals. Therefore, I share the view of the learned Labour Court that the appellants have failed to discharge the burden on the key issue.
As regards the argument of learned counsel for the appellants that certain provisions of the Standing Orders, have been disregarded by the respondent, suffice it to say that if it was so and it had the effect of damaging the appellants' rights, they should have agitated their grievance at the appropriate point of time. But such lapses now cannot be held to be relevant for the determination of the key issue, which has gone against the appellants.
Before parting, it may be pertinent to mention here that I would have considered with all the seriousness the argument of the appellants' side, that the respondents as a device and with an object to defeat the rights of the labour/workmen class, kept them on daily wages and this amounts to a fraud upon the labour laws. But unfortunately, the appellants have failed to prove the key issue, upon which the fate of this proposition was dependent. And thus on account of the lack of proof in this behalf, such a serious vice cannot be subjectively imputed to the respondent. Therefore, I am refraining myself to dilate in this behalf any further.
Furthermore, because of the dismissal of these appeals, I am also not dilating upon the issue raised by Mr. Sehgal that because of the termination order, as alleged by the appellants, fresh notices and a grievance petition was required and those already pending were rendered infructuous, because I have already held that the appellants have failed to prove their case entitling them for permanent employment, resultantly, the question of termination or otherwise has lost its relevancy. In the light of above, the conclusion is that the appellants have failed to prove their employment on permanent basis against the permanent post, and resultantly, I do not find that they are entitled to the grant of the relief prayed for in their petitions. These appeals thus have no merits and the same are hereby dismissed.
(A.A.) Appeals dismissed.
PLJ 2006 Lahore 590 (DB)
Present : Mian Hamid Farooq and Syed Hamid Ali Shah, JJ.
KHALID MAHMOOD--Appellant
versus
ASGHAR ALI BHATTI--Respondent
R.F.A. No. 910 of 2001, heard on 12.7.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. 1, R. 10--Impleading/adding a party to suit--Courts have ample power to suo motu implead add a party whose presence was necessary to effectually and completely adjudicate upon all questions involved in suit. [P. 592] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 33--Powers of appellate Court--Appeal is continuation of suit therefore, appellate Court in exercise of its powers under O. XLI, R. 33 C.P.C. can pass any order which ought to have been passed or made as that Court would require, including impleading necessary party to suit. [Pp. 592 & 593] B & C
1998 SCMR 2020; 1995 CLC 1632; 1980 CLC 1375; PLJ 1981 Lah. 486; 1994 MLD 452; 1996 SCMR 1217; 1986 CLC 2410; 1996 SCMR 781 and PLD 1992 SC 590 ref.
Malik Tabassum Maqsood, Advocate for Appellant.
Malik Taj Muhammad Khan, Advocate for Respondent.
Date of hearing : 12.7.2005.
Judgment
Mian Hamid Farooq, J.--Appellant/plaintiff, through the appeal in hand, has called in question judgment and decree dated 12.11.2001, whereby the learned trial Court dismissed his suit for specific performance of agreement.
Facts in brief are that the appellant instituted the suit for specific performance of agreement dated 14.4.2000, against the respondent/ defendant (Asghar Ali Bhatti), in respect of the suit land, described in the plaint, pleading therein that the appellant entered into an agreement to sell regarding the purchase of the suit land for consideration of Rs. 33,00,000/-, out of which an amount of Rs. 12,00,000/- was paid. According to the appellant, the refusal of the respondent to execute the sale deed necessitated the filing of the suit. The respondent was summoned and he on 15.9.2001, made the statement before the Court that he has no objection if the suit is decreed, provided the remaining amount of Rs. 17,00,000/- is paid. The original agreement to sell and other documents were produced before the Court. Whereafter, the learned trial Court, after coming to the conclusion, that Muhammad Sarwar son of Muhammad Shafi, who is a necessary party, has not been impleaded in the suit, therefore, no decree for specific performance can be passed, proceeded to dismiss appellant's suit, vide impugned judgment and decree dated 12.11.2001. The appellant has challenged the said decree through the appeal in hand and alongwith the appeal, has filed the application under Order 1 Rule 10 CPC (C.M. No. 1-C of 2001) praying that he may be allowed to add the name of Respondent No. 2 (Muhammad Sarwar son of Muhammad Shafi) in the main suit.
Learned counsel for the appellant states that the appellant felt contended, when the respondent admitted the claim of the appellant and thus could not file an application for impleading Muhammad Sarwar son of Muhammad Shafi as one of the defendants in the suit. He has added that the learned trial Court did not provide any opportunity to the appellant to implead the said person in the suit. He has further stated that this Court is empowered to implead the said person as one of the defendants in the suit. He has relied upon Muhammad Anwar Naseem vs. Commissioner of Income Tax, Gujranwala and another (1998 SCMR 2020), Chiraghuddin vs. Muhammad Ibrahim and others (1995 CLC 1632), Messrs Ideal Life Insurance Co. Ltd. and another vs. Mst. Khairunnisa A.G. Mirza (1980 CLC 1375). Conversely, the learned counsel for the respondent has refuted the above noted contentions and supported the impugned decree. He further adds that at the appellate stage, a person cannot be impleaded as party to the suit.
We have heard the learned counsel for the parties, examined the summoned record and perused the impugned judgment. Agreement to sell, dated 14.4.2000, manifests that it was executed between Muhammad Sarwar son of Muhammad Shafi, through his general attorney, namely, Asghar Ali Bhatti son of Barkat Ali Bhatti (vendor) and Khalid Mehmood son of Abdul Ghani (vendee). The appellant filed the suit for specific performance of agreement dated 14.4.2000, only against Asghar Ali Bhatti. Undoubtedly, Muhammad Sarwar son of Muhammad Shafi was a necessary party to the suit and it was so found by the learned trial Court. The plaint shows that he was not impleaded as one of the defendants and the suit was filed only against the attorney (Asghar Ali Bhatti, the defendant/respondent) of Muhammad Sarwar. Admittedly, the respondent appeared and admitted appellant's claim in the suit. The appellant neither filed any application before the learned trial Court for impleading Muhammad Sarwar as one of the defendants in the suit nor made any oral request in this regard. The learned trial Court, in the impugned judgment, has although held that Muhammad Sarwar son of Muhammad Shafi, being the real owner of the property, was a necessary party to the suit, yet proceeded to dismiss the suit on the ground of absence of Muhammad Sarwar in complete oblivion of the settled law that the Courts have ample power to suo moto implead/add a party, whose presence was necessary to effectually and completely adjudicate upon all the questions involved in the suit. If any case law is needed, judgments reported as Muhammad Ashraf vs. Ghulam Nabi etc. (PLJ 1981 Lahore 486) and University of the Punjab through Vice Chancellor and another vs. Malik Jehangir Khan (1994 MLD 452) can be referred. In the present set of circumstances, we feel that the learned trial Court was under an obligation that once it has come to the conclusion that Muhammad Sarwar son of Muhammad Shafi is a necessary party, then it should have itself impleaded the said person in the suit instead of short cutting the matter by dismissing the suit. Had the learned trial Court been slightly cautious and vigilant and conversant with the law on the subject, parties' valuable time and money could have been saved, who have come to this Court in appeal.
Reverting to the question as to whether at this stage Muhammad Sarwar son of Muhammad Shafi can be impleaded as one of the defendants, in the suit. The appellant did not file any application, before the learned trial Court, for impleading Muhammad Sarwar, however, he has now filed the application (C.M. No. 1-C of 2001) alongwith the appeal for the said purpose. There cannot be any cavil to the proposition that the appeal is a continuation of the suit and the appellate Court, in exercise of its powers under Order XLI Rule 33 CPC, can pass any order which ought to have been passed or made as the case may require. It has been held in the case of Hazrat Khan vs. Amanullah Khan and others (1996 SCMR 1217) that once the appellate Court has come to the conclusion that a person was necessary party, then the learned Judge ought to have passed order directing him to be joined as a party. It would be appropriate to reproduce a portion from the said judgment, which reads as follows:--
"However, in view of the opinion expressed by the learned Single Judge we feel that having come to the conclusion that the petitioner was a necessary party, the learned Judge ought to have passed orders directing him to be joined as a party. We are unable to appreciate what complications would have been created if the petitioner was joined as a party in appeal. It seems the attention of the learned Judge was not invited to the rule laid down by this Court in Karamat Hussain vs. Mst. Fatima and others (1969 SCMR 256), to the effect that the introduction of the plaintiff or the defendant for one stage of a suit is an introduction to all stages. It was held in that case that substitution in appeal, even that from an interlocutory order was in the same proceedings, and therefore, once the legal representatives of a deceased party had been brought on the record they were on the record for all purposes. Although this principle was laid down in connection with the substitution of the legal representatives of a deceased party to a suit, it is equally applicable to the joinder of a party at appellate stage under Order 1 Rule 10 CPC because the appeal is a continuation of the proceedings of the suit. A learned Judge of the Lahore High in Zakira Begum etc. Vs. Aziz Ahmad etc. (1986 CLC 2410 (2)) applied this principle in Constitutional jurisdiction to correct a revisional order passed by the District Judge. We are, therefore, of the opinion that the petitioner's application under Order I, Rule 10 CPC ought to have been allowed by the learned Single Judge which would have enured for the purpose of the suit in consonance with the principle laid down in the cited decision of this Court."
(Underlinging is for emphasis).
The Hon'ble Apex Court of the country in a case reported as Muhammad Anwar Naseem vs. Commissioner of Income Tax, Gujranwala and another (1998 SCMR 2020) took the view that the Service Tribunal was not justified in dismissing the appeal purely on a technical ground that the person likely to be effected by the judgment has not been impleaded as party in the appeal. It has been held in the case reported as Muhammad Sharif vs. Dr. Khurshid Anwar Mian (1996 SCMR 781) that under Order I, Rule 10 CPC and Order XXII, Rule 10 CPC, a Court has discretion to allow any party to join or substitute as a party.
In the above perspective and in view of the principles of law laid down by the Hon'ble Supreme Court of Pakistan, we are fortified in our view that this Court, in exercise of its appellate powers, is empowered to order for impleading the necessary party in the suit.
There is another aspect of the case. Order I, Rule 9 CPC provides that no such shall be defeated by reasons of mis-joinder or non-joinder of parties. In this regard, reproduction of a portion from the judgment reported as Central Government of Pakistan and others vs. Suleman Khan and others (PLD 1992 SC 590) appears to be necessary, which is completely applicable in the facts and circumstances of the case in hand:--
"Order I, Rule 9 CPC gives also, very strong support for the foregoing approach regarding interpretation and application of Order I, Rule 10 CPC. This provision (Rule 9) is in a mandatory negative form; that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interest of the parties are concerned. It is not at all in dispute nor the High Court had any such constraint that what is applicable to the plaintiff and defendant at the trial stage can also apply in appeal, to the appellant and the respondent in so far as these two provisions in Order I, Rule 9 and 10 CPC are concerned. Not only this it is now well-settled that under Order XLI Rule 33 CPC that the High Court and under Order XXXIII Rule 5 of the Supreme Court Rules this Court, can exercise the appellate powers in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection."
(Underlinging is ours)
The same view was taken in the case of Muhammad Anwar Naseem (ibid).
In the above backdrop and in view of the law declared by the Hon'ble Supreme Court of Pakistan, in the cases cited above, we have examined the impugned judgment and find that the learned trial Court under the circumstances fell into grave legal error in dismissing appellant's suit and thus we are inclined to accept the appeal, order for impleading Muhammad Sarwar son of Muhammad Shafi in the suit and to remand the case to the learned trial Court for its decision on merits.
In view of the above reasons and findings, we decide the appeal in the following terms:--
(i) Present appeal as well as C.M. No. 1-C of 2001 are allowed.
(ii) Impugned judgment and decree dated 12.11.2001 are set aside.
(iii) Muhammad Sarwar son of Muhammad Shafi is ordered to be impleaded as Defendant No. 2 in appellant suit for specific performance, which shall be deemed to be pending before the learned trial Court.
(iv) Parties are directed to appear before the learned trial Court on 25.7.2005, on which date the appellant shall file the amended plaint, thereby impleading aforementioned Muhammad Sarwar as Defendant No. 2.
(v) The learned trial Court shall decide the suit after hearing the parties and of course in accordance with law.
(vi) No order as to costs.
(A.A.) Case remanded.
PLJ 2006 Lahore 595 (DB) [Multan Bench Multan]
Present: Ijaz Ahmad Chaudhry & Maulvi Anwar-ul-Haq, JJ.
Syed NAFS-E-NABI and others--Appellants
versus
PROVINCE OF PUNJAB through DISTRICT COLLECTOR, MULTAN and others--Respondents
R.F.A. No. 181 of 2001, heard on 21.9.2005.
Land Acquisition Act, 1894 (I of 1894)--
----S. 18--Acquisition of land--Entitlement to compound interest--Petitioner's claim that they were entitled to compound interest with effect from the date when first notification for acquisition was issued was rightly rejected by trial Court is as much as possession was not taken over by respondent nor any procedure was adopted by respondents--Possession of land was taken over by respondents after issuance of last notification on 18.9.1997 and in pursuance of the same requisite procedure was adopted by respondents--Appellants, however, have been rightly awarded compound interest with effect from 18.9.1997 when last notification for acquisition of land was issued and thereafter, formalities were conducted for taking possession of land coupled with announcement of Award on 26.8.1999--No illegality or infirmity in impugned judgment having been pointed out--Appeal was found to be devoid of merit and dismissed. [Pp. 598 & 599] A
NLR 1990 Revenue 15, ref.
Rana Javed Akhtar, Advocate for Appellants.
Mr. Azmat Ali Khanzada, Advocate for Respondents Nos. 1 & 2.
Mr. Ahmad Usman Khanmana, Advocate for Respondents Nos. 3 to 9.
Date of hearing : 21.9.2005.
Judgment
Ijaz Ahmad Chaudhry, J.--On conclusion of trial in a reference made to it by the appellants under Section 18 of the Land Acquisition Act, 1894, the learned Senior Civil Judge, Multan vide judgment dated 15.1.2001 accepted the same and held the appellants entitled to compound interest upon the amount of compensation approved by Board of Revenue at the rate of 8% per annum with effect from 18.9.1997 till the date of fixed payment. As regards previous period commencing from 25.11.1981 to 17.9.1997 the appellants were held entitled to get compound interest of lease money per acre per year settled and decided by the District Collector. However, claim of the appellants that they should be paid compound interest since from 25.11.1981 when the first notification was issued has been rejected.
The land owners, namely, Nafs-e-Nabi etc. (hereinafter referred as appellants) have filed RFA No. 181/2001 while the Province of Punjab (hereinafter referred as respondents) has filed RFA No. 179/2001 against the above said judgment, which having involved same questions of facts and law are being disposed of together through this single judgment.
The brief facts of the case are that the appellants were land owners of revenue estate falling in village Mauza Thada Thaheem Tehsil and District Lodhran, measuring 35 Kanals 14 Marlas, which was proposed to be acquired by the respondents under the Land Acquisition Act, 1894 for the purpose of construction of Dunyapur to Adamwahan Section and Rukanpur to Adamwaham Mileage Nos. 8 to 18 road in 1980-81 against Award dated 26.6.1999. The appellants preferred reference u/S. 18 of the Act with objections that compensation was not awarded at market value of the acquired land in terms of sub-para 10(iii)C of the Land Acquisitions Rules 1985; that land was acquired in 1980-81 when the possession was parted with, as such the appellants were entitled to receive compound interest in terms of Sections 28-C and 34 of the Act, and that 3 Acres land was situated the Municipal limits of District Lodhran, hence the compensation amount should be enhanced.
The respondents contested the reference by filing written reply and raised certain preliminary objections. The controversial pleadings of the parties necessitated the framing of the following issues by the learned trial Court:--
(1) Whether the petitioners are entitled to the compensation to be worked out on the basis of the averments made in the reference? OPA.
(2) Whether the reference is not competent in its present form? OPR.
(3) Whether the petitioners are bereft of cause of action and locus standi to make this reference after acceptance of compensation and have come to the Court with mala fide intention? OPR.
(4) Whether the compensation was paid strictly in accordance with law and Rules on the subject? OPR.
(5) Relief.
Syed Nafs-e-Nabi, one of the appellants appeared as AW-1 and also placed on record Gazette Notifications and Award Ex. A/1 to A/10. On behalf of the respondents Muhammad Arshad, Assistant line Control Officer appeared as RW-1 and documents Ex. R/1 to R/6 were also produced. Then after hearing the arguments of learned counsel for the parties, the impugned judgment was passed.
Learned counsel for the appellants contends that under Section 34 read with Section 28(c) of the Land Acquisition Act the appellants were entitled to the compound interest since from 1981 as the possession of the land was taken when the first notification regarding acquisition of the land owned by the appellants was issued on 25.11.1981. Also refers to the statement of RW-1 that the possession of the land was taken in the year 1981. Relies upon Akbar Ali etc. vs. Province of Punjab etc. (NLR 1990 Revenue 15). However, the learned counsel for the appellants has foregone the other grounds regarding enhancement of compensation etc. settled through the impugned Award.
On the other heard learned counsel for the respondents has contended that the appellants were not entitled to any compound interest as after the issuance of earlier notifications on 25.11.1981, 19.8.1984 and 31.7.1993 no further proceedings regarding acquisition of land were initiated, which elapsed by the afflux of time and it was only after the issuance of notification dated 18.9.1997 that the land was acquired for the project and Award was duly announced on 26.6.1999 whereby compensation was fixed. It is also contended that the appellants have also no claim for compound interest for the reason that they have been paid compensation of their lands as per rates prevailing in the year 1997 and not at the rates which prevailed in 1980-81.
We have heard the learned counsel for the parties and perused the entire record. No doubt earlier notifications were issued under Section 4(1) of the Act on 25.11.1981, 19.8.1984 and 31.7.1993, but there is nothing on the record to substantiate the plea of the appellants that the possession of the land was taken after the issuance of first notification in the year 1981. Procedure has been specified in the Act for taking possession of the land after issuance of the notification. Sub-section (2) of Section 4 thereof provides that after issuance of the notification it shall be lawful for any officer, either generally or specifically authorized by such Government in this behalf and for his servants and workmen to enter upon the lands for survey, dig or bore into the subsoil and to do all other acts necessary to ascertain whether the land is adapted for such purpose. And sub-section (3) lays down that the officer so authorized shall at the time of such entry pay or tender payment for all necessary damage to be done as aforesaid, and, in case of dispute to the sufficiency of the amount so paid or tendered, he shall at once refer the dispute to the decision of the Collector or other Chief Revenue Officer of the District, and such decision shall be final. The appellants have failed to tender any document showing that the above-said formalities were ever conducted before the last notification was issued on 18.9.1997 or that notice was ever served upon them earlier as required u/S. 9 of the Act or any enquiry provided under Section 11 thereof was conducted by the Collector to resolve the objections, if any, raised by the appellants. Then under Section 12 of the Act the final Award is announced. Section 16 provides that when the Collector has made an award under Section 11, only then he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances. The oral version of the appellant and concessional statement made by RW-1 during cross-examination in the shape of probability that possession might have been parted with by the appellants voluntarily in the year 1981 is not sufficient to declare that the possession was actually taken from the appellants in the year 1981 without completing the above formalities. Whereas RW-1 in the examination-in-chief has specifically stated that the possession of the land was taken from the appellants at the time of payment of compensation to them, which admittedly was made after the issuance of last Notification dated 18.9.1997 accompanied by the Award announced on 26.6.1999.
Now we come to another aspect of the case that if the possession was actually taken in the year 1981 when the first notification was issued, then the compensation to be awarded to the land owners was to be assessed at the rates prevailing at that time and not in the year 1997 when the last notification was issued. The appellants are breathing hot and cold at the same time, who want to get the compensation at the high rates prevailed in 1997 and strangely on the said rates they are claiming compound interest for the last 16 years, which cannot be accepted from any stretch of imagination. The scheme of compound interest has been introduced so that unnecessary delay should not occur in the payment of compensation to the land owners after taking possession of the land. Section 34 of the Land Acquisition Act, 1894 reads as follows:--
"When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with compound interest thereon at the rate of eight per centum per annum from the time of so taking possession until it shall have been so paid or deposited:
Provided that any waiver of the above right by the land-owners shall be void and he shall be entitled to the said interest notwithstanding and agreement to the contrary."
In the present case admittedly the price of the proposed acquired land was never assessed after the issuance of earlier three notifications and as such there was no question of taking the possession of the land by the Collector without adopting the procedure. There is nothing on the record to show that the appellants had ever complained to any forum/higher authority that wrong was being done with them and their land was acquired without payment of any compensation. The silence of the appellants for a long period of more than 17 years is a sufficient proof to infer that possession of the land was only taken after the issuance of last notification on 18.9.1997. As such the claim of the appellants for awarding compound interest since from 1981 has been rightly rejected by the learned trial Court. The case law relied upon by the learned counsel for the appellants is not applicable to the facts and circumstances of the present case.
(A.A.) Appeals dismissed.
PLJ 2006 Lahore 599 (DB)
Present: Ch. Ijaz Ahmad and Muhammad Khalid Alvi, JJ.
ASAD WAHEED--Appellant
versus
KHALID PERVAIZ and anothers--Respondents
R.F.A No 16 of 2005, heard on 7.3.2005.
(i) Administration of Justice--
----Each and every case is to be decided on its peculiar circumstances and facts. [P. 602] B
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. IX, R. 12 & O. V, R. 4--Non-appearance of appellant in Court to made statement--Appellant's application for extension of time was dismissed by trial Court without application of mind--Impugned judgment and decree on that basis being not in consonance with law was not sustainable law. [P. 604] C & D
(iii) Duty of Court--
----Courts must decide cases on merits instead of technicalities. [P. 605] E
(iv) Interpretation of Statute--
----Document must read as a whole. [P. 602] A
2000 CLC 1493; PLD 1997 Karachi 622; PLD 1988 SC (AJK) 42; PLD 1982 Lahore 63; 1994 MLD 1659; PLD 1957 SC 219; PLD 1992 SC 595; 1994 SCMR 2213; PLD 1970 SC 158; PLD 1970 SC 173; 1988 SCMR 2268; PLD 1979 Lahore 387; PLD 1962 Lahore 401; 1995 MLD 923; PLD 1960 SC 301; PLD 1982 Lahore 63 and PLD 1964 SC 829, ref.
Mr. Muhammad Hussain Chotiya, Advocate of Appellant.
Sheikh Shafiq Iqbal, Advocate for Respondent No. 1.
Mr. Muhammad Aslam Sheikh, Advocate for Respondent No. 2.
Date of hearing : 7.3.2005.
Judgment
Ch. Ijaz Ahmad, J.--The brief facts out of which the present appeal arises are that agreement to sell dated 22.8.2003 was executed between the appellant and Respondent No. 1 regarding land in question measuring 257 Kanals and 15 Marlas for consideration of Rs. 1,44,98,438/- at the rate of Rs. 450,000/- per acre. According to the terms and conditions of the agreement appellant has paid Rs. 36,24,160/- to Respondent No. 1 through two pay orders amounting to Rs. 17,00,000/- and Rs. 15,00,000/- and Rs. 424,610/- in cash. The sale-deed has to be executed in terms of the agreement to sell within four months and 15 days which comes to 9.1.2004. The respondent failed to execute sale-deed in favour of the appellant. The appellant being aggrieved filed suit for specific performance against the respondent in the Court of Civil Judge 1st Class, Lahore. Respondent No. 1 appeared in the Court on 22.3.2004 and admitted the claim of the appellant subject to deposit of balance amount of Rs. 108,73,828/- Learned counsel of the appellant requested adjournment to secure instructions from the appellant. The appellant on the next date filed application before the trial Court for appointment of local commission which was dismissed by the trial Court vide order dated 29.3.2004. Thereafter the appellant and Respondent No. 1 filed miscellaneous applications before the trial Court. Finally the trial Court directed the appellant to appear in person on the following dates:--
(i) 19.7.2004, (ii) 22.7.2004, (iii) 17.9.2004 and 7.10.2004.
The appellant failed to appear consequently on account of his failure the trial Court dismissed the suit vide judgment and decree dated 25.11.2004. Hence the present appeal.
The appeal was fixed before this Court on 12.1.2005. Notice was sent to the respondents. Learned counsel of the respondents have entered appearance. With the concurrence of the learned counsel of the parties the appeal is decided as pacca case.
Learned counsel of Respondent No. 1 has raised a preliminary objection that appeal is not maintainable before this Court in view of the contents of Para-13 of the plaint in which the appellant has mentioned value of the suit as 15,000/-. Therefore, appeal is not maintainable before this Court in view of Section 18(1)(a) of Punjab Civil Courts Ordinance, 1962. In support of his contention he relied upon the following judgments:--
National Bank of Pakistan vs. Muhammad Akram Khan (2000 CLC 1493).
Ghulam Mustafa vs. Rawat and others (PLD 1997 Karachi 622).
Learned counsel of the appellant submits that appellant has mentioned Rs. 15,000/- as value of the suit for Court fee. Further contends that the contents of the plaint be read as a whole and in case para-13 is read with paras 2 and 4 of the plaint then it becomes clear that the appellant has filed suit for specific performance with regard to the property with a value of Rs. 1,44,98,438/-. Therefore, objection raised by the learned counsel of the respondent has no force.
Learned counsel of the appellant submits on merits that the trial Court erred in law to dismiss the suit of the appellant for non-appearance of the appellant which is not in consonance with Order IX Rule 12 and Order V, Rule 4 CPC. In support of his contention he relied upon the following judgments:--
Ghulam Mohy-ud-Din vs. Noor Dad (PLD 1988 S.C. (AJK) 42.
Safdar Ali Khan Sayal vs. District Judge (PLD 1982 Lahore 63).
M. Aftab Sehgal vs. Station House Officer (1994 MLD 1659).
Learned counsel of Respondent No. 1 submits that four opportunities were granted to the appellant for personal appearance but he failed to appear and filed mala fide miscellaneous applications before the trial Court, therefore the trial Court was justified to dismiss the suit of the appellant which is in accordance with law keeping in view the conduct of the appellant and the legal position that specific performance is discretionary relief. Therefore, trial Court was justified to dismiss the suit of the appellant in view of the conduct of the appellant.
Learned counsel of Respondent No. 2 submits that Respondent No. 2 was only an instrument for execution of agreement to sell between the appellant and Respondent No. 1 which is admitted by both the parties. He further submits that Respondent No. 2 has no interest in the case.
We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record.
First we would like to decide the preliminary objection raised by the learned counsel of Respondent No. 1 qua maintainability of the appeal before this Court. It is better and appropriate to reproduce para-13, para-2, para-4 of the plaint to resolve the controversy between the parties:--
"13. That the value of the suit for the purpose of Court fee is Rs. 15,000/- and the plaintiff will deposit when this Honourable Court make order for deposit of Court fee.
That before the execution of the agreement to sell with the Defendant No. 1, the Defendant No. 1 identified his land himself in the presence of the Defendant No. 1 that his land is located on the said mettled road and the front of the land is near about 1000 feet which is located on the said mettled road, therefore, upon the assurance of the Defendant No. 1 regarding the front of the land the plaintiff entered into an agreement to sell with the Defendant No. 1 on 22.8.2003 @ Rs. 450,000/- per acre amounting to a total of Rs. 1,44,98,438/- for 257 Kanals 15 Marlas and the plaintiff at the time of execution of the said agreement paid Rs. 36,24,610/- in the form of pay order No. 2088751, dated 23rd August 2003 amounting to Rs. 17,00,000/- and pay order No. ABN-AMBRO No. 2900297 dated 25.8.2003 amounting to Rs. 15,00,000/- and paid Rs. 4,24,610/- cash to the Defendant No. 1 and for the remaining rest amount i.e. Rs. 1,08,73,828/- is to be paid in four months to the Defendant No. 1 for the execution of sale-deed in favour of the plaintiff. Copy of the agreement to sell dated 22.8.2003 is annexed as Annexure-A. Whereupon the defendant not only put his signatures but also imposed his thumb mark on the agreement to sell.
That the plaintiff as per the agreement arranged the balance amount of Rs. 108,73,828/- and got prepared and deposited the same in the name of Defendant No. 1 Khalid Pervaiz and got issued a pay Order No. 20643 dated 8.1.2004 drawn at Union Bank Township Branch, Lahore Annex-G for the balance consideration amount to be paid to the defendant No. 1. It is also important to mention here for the preparation of the sale-deed in favour of the plaintiff, the plaintiff required some documents i.e. Fard Nishandahi, Fard Aks, Fresh Fard Bai and Fard Masavi required and requested through his counsel requesting the Defendant No. 1 to forthwith to provide the requisite documents required for the preparation of the title deed but the Defendant No. 1 reluctant to adhere the lawful request of the plaintiff."
It is settled principle of law that the plaint is to be read as a whole in case it is read as a whole then the objection raised by the learned counsel of Respondent No. 1 has no force. It is settled principle of interpretation that document must be read as a whole as the law laid down by the Honourable Supreme Court in the following judgments:--
Reference by the President of Pakistan (PLD 1957 SC 219);
Hakim Khan vs. Govt. of Pakistan (PLD 1992 S.C. 595);
Even otherwise if para-13 is read alone still the objection is not sustainable in the eyes of law in terms of the language used by the appellant in para-13 which clearly reveals that it is for the purpose of Court fee and not for purpose of value of jurisdiction of the Court. At this stage we would not hesitate to hold that para-13 of the plaint is not happily worded in accordance with law. It is settled principle of law that each and every case is to be decided on its peculiar circumstances and facts as the law laid down by the Honourable Supreme Court in Trustee of Port of Karachi vs Muhammad Saleem (1994 SCMR 2213). The judgments cited by the learned counsel of Respondent No. 1 are not attracted in the present case in view of peculiar circumstances highlighted in the above paragraphs. Therefore, objection raised by learned counsel of Respondent No. 1 has no force.
"It is, therefore, respectfully prayed that application may be accepted and the petitioner may kindly be allowed some reasonable time to produce the attorney duly attested by the Embassy before this Honourable Court in the interest of justice and fair play."
The said application was dismissed by the trial Court in the impugned order in the following terms:--
"The application moved for offering another opportunity is absolutely unjustified."
It is better and appropriate to reproduce Order IX Rule 12 and Order V, Rule 4 CPC to resolve the controversy between the parties:--
"Order IX, Rule 12. "Consequence of non-attendance, without sufficient cause shown of party ordered to appear in person.--Where a plaintiff or defendant, who has been ordered to appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively, who do not appear." (underlining is our).
Order V, Rule 4 CPC "No party to be ordered to appear in person unless resident within certain limits.--No party shall be ordered to appear in person unless he resides--(underlining is our).
(a) within the local limits of the Court's ordinary original jurisdiction, or
(b) without such limits but at a place less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixth of the distance between the place where he resides and the place where the Court is situate) less than two hundred miles distance from the Court-house."
It appears that without adverting to the above provisions of law the trial Court has dismissed the application of the appellant without judicial application of mind which is condition precedent as the law laid down in the following judgments:--
Gouranga Mohan Sikdar vs. Controller of Import and Export (PLD 1970 S.C. 158).
Mollah Ejahar Ali vs. Govt. of East Pakistan (PLD 1970 SC 173)
Even the public functionaries are duty bound to decide the controversy between the parties after judicial application of mind after addition of Section 24-A in the General Clauses Act as the law laid down by the Honourable Supreme Court in Airport Support Services' case (1998 SCMR 2268). It is admitted fact, as mentioned above, that appellant has filed application for extension of time to allow appellant to produce his attorney before the trial Court which application was decided as mentioned above without application of mind. The impugned order is not sustainable in the eyes of law, as mentioned above, the application filed by the appellant was dismissed without cogent reasons by the trial Court. Therefore, impugned judgment and decree is not in consonance with the law laid down by the superior Courts in the aforesaid judgment. The appellant has also filed application under Order 12 read with Section 151 CPC on 25.10.2004 with the following prayer:--
"Under the above mentioned circumstances, it is, most respectfully prayed that the application may kindly be allowed and the defendant may kindly be directed to admit or deny the same after inspection."
The aforesaid application was not decided by the trial Court as is evident from impugned judgment and decree which is not in consonance with the law laid down by the superior Courts in the aforesaid judgment. It is pertinent to mention here that trial Court must have to decide the application of the appellant keeping in view the requirements and conditions prescribed under Order IX, Rule 12 and Order V, Rule 4 CPC. Therefore, impugned order and decree is not sustainable in the eyes of law.
It is pertinent to mention here that there are certain conditions prescribed under Order V, Rule 4 CPC as the law laid down by this Court in Bilqees's case (PLD 1979 Lahore 387). This Court has interpreted Order IX, Rule 12 CPC in Syed Muhammad Abdul Jaleel Shah's case (PLD 1962 Lahore 401) wherein following principle has been laid down:--
"After giving due consideration to the matter, I am clearly of the opinion that Order IX, Rule 12 CPC does not empower the Court to strike of the defence. In passing the impugned order the subordinate Court appears to have acted in the exercise of its jurisdiction illegally and with material irregularity. I accordingly set aside the impugned order and direct the Court to proceed in accordance with law. The Court will be at liberty to require the presence of Syed Muhammad Abdul Jalil Shah Gardezi either under Order III, Rule 1, CPC or under Order X, Rule 4, CPC and if he fails to appear then the Court may proceed either in accordance with the provisions of Order IX, Rule 12, CPC or under Order X, Rule 4, CPC."
The aforesaid judgment was considered and followed by this Court in the following judgment.
Muhammad Sharif's case (1995 MLD 923)
The Honourable Supreme Court in such circumstances has laid down a principle in Muhammad Ismail Chaudhry's case (PLD 1960 S.C. (Pakistan 301) that trial Court has misused the power under Order IX, Rule 12 CPC. It is pertinent to mention here that counsel of the appellant has filed application duly supported by his affidavit that he could not contact the appellant on account of illness of his mother and who ultimately died on 22.11.2004. Therefore, impugned judgment and decree is not in accordance with the law laid down by this Court in Sardar Ali Khan Sayal's (PLD 1982 Lahore 63). It is settled principle of law that Courts should decide the cases on merits instead of technicalities. It is pertinent to mention here that appellant has filed application to admit of deny certain documents on 25.10.2004 which was not decided by the trial Court as is evident from the impugned order and decree. Therefore, trial Court has dismissed the suit in hurry in view of order of the District Judge dated 23.11.2004 which is not in consonance with the law laid down by the Honourable Supreme Court in Ghulam Mohy-ud-Din's case (PLD 1964 S.C. 829).
In view of what has been discussed above, this appeal is accepted and impugned order and decree dated 25.11.2004 is set aside and the case is remanded to the trial Court to decide the applications of the parties afresh in accordance with law. The parties are directed to appear before the trial Court on 28.3.2005.
(A.A.) Case remanded.
PLJ 2006 Lahore 605
Present: Muhammad Jehangir Arshad, J.
SAHIB DAD KHAN--Petitioner
versus
LAL KHAN NIAZI--Respondent
C.R. No. 857 of 2005, decided on 22.9.2005.
(i) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24--Dismissal of suit for non-deposit of 1/3rd amount of sale price--Legality--Plaintiff had himself admitted in his plaint that land was sold for Rs. 2,50,000/- but fictitious exaggerated price of Rs. 4,00,000/- was shown in mutation in order to defeat right of pre-emption--Plaintiff however applied for deposit of 1/4th of sale price of Rs. 40,000/- only--Device adopted by plaintiff showed contumacy on his part--No justification existed for trial Court to have directed plaintiff to deposit 1/3rd of Rs. 40,000/- in clear disregard to contents of plaint. [P. 607] A
(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 25--Concept of deposit of 1/3rd of sale price--Provision of S. 25 of Punjab Pre-emption Act 1991, talks of sale price only as mentioned in sale-deed or in mutation--Court can require deposit of 1/3rd probable value only of price so mentioned appears to be inflated. [P. 608] B
(iii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24--Non-deposit of 1/3rd of sale price as mentioned in mutation--Dismissal of suit--Legality--Non-deposit of requisite amount on part of plaintiff was not due to his fault alone but was also on account of act of Court as well--Appellate Court acted without jurisdiction by directing trial Court for fixing probable value of land in question, while remanding case to trial Court--High Court, directed plaintiff to deposit 1/3rd of sale price as mentioned in mutation within 30 days--Case was remanded to trial Court with direction to order plaintiff to deposit such amount failing which has plaint would stand rejected. [Pp. 608 & 609] C
Mr. Inayat Ullah Khan Niazi, Advocate for Petitioner.
Mr. Zahid Hussain Khan, Advocate for Respondent.
Date of hearing: 21.9.2005.
Judgment
The petitioner who is defendant before the learned trial Court in a pre-emption suit filed by respondent, is aggrieved of the order dated 19.3.2005 passed by learned Additional District Judge, Mianwali, whereby the said learned Additional District Judge while accepting appeal of the respondent against the order dated 3.11.2004 passed by learned trial Court dismissing suit of the respond for pre-emption for non-deposit of 1/3rd of the sale price, remanded the case to the learned trial Court with the direction to fix the probable value of the dispute property and then order 1/3rd of that probable value/price to pay on behalf of the respondent/plaintiff within the period fixed by the trial Court.
"I have heard the arguments and perused the record carefully. At this time it appears that Halqa Revenue Officer while attesting the mutation both in words and figures has written the sale price of Rs. 40000/-, therefore, 1/3rd of the sale price i.e. 13340/- be deposited by the plaintiff on or before 22.9.2004."
The petitioner/defendant on becoming aware of the said order of the learned trial Court moved an application on 22.10.2004 stating therein that in fact the sale price mentioned in the mutation was Rs. 4,00,000/- which though inadvertently was mentioned as Rs. 40,000/- by the Patwari yet the said omission was corrected by the Revenue Officer on 15.9.2004 and the sum of Rs. 4,00,000/- was duly incorporated in the relevant record. It was further stated in the said application that despite the above mentioned inadvertent mistake, the fact remains that the respondent in para-2 of the plaint himself admitted that the sale in dispute, in fact, took place for Rs. 2,50,000/- but a fictitious price of Rs. 4,00,000/- was entered in the mutation, therefore, there was no justification for the trial Court to have directed the respondent/ plaintiff to deposit Rs. 13333/- being 1/3rd of the sale consideration of Rs. 40,000/-. The learned trial Court allowed that application and dismissed the suit on 3.11.2004 holding that the respondent/plaintiff having failed to deposit the correct amount knowingly that the sale price as mentioned in the mutation was Rs. 4,00,000/-. Against this order of the learned trial Court dated 3.11.2004, an appeal was filed by the respondent/plaintiff which was allowed in the terms mentioned in the opening paragraph of this judgment. This order of the learned Additional District Judge has now been assailed by the defendant/vendee through the instant civil revision.
Heard. Record perused.
At the very outset when question as to how the respondent/plaintiff could ask the trial Court for deposit of 1/4th of the sale price of Rs. 40,000/- only, whereas in para-2 of the plaint, he himself had admitted that suit land was in fact sold for Rs. 2,50,000/- but a fictitious exaggerated amount of Rs. 4,00,000/- was shown in the mutation in order to defeat the right of pre-emption, learned counsel for the petitioner failed to give any satisfactory explanation. The device adopted by respondent/plaintiff while obtaining order dated 7.9.2004 does not only show contumacy on his part but also appears to be the result of collusion between the respondent and the trial Court, otherwise, no justification at all existed for the trial Court to have directed the respondent/plaintiff for deposit of 1/3rd of Rs. 40,000/-, in clear disregard to the contents of para-2 of the plaint. This however, was an act of the Court and subsequently by dismissing the suit of the respondent, the trial Court committed yet another legal mistake because dismissal of suit in fact, impliedly amounts to extending time for the deposit of 1/3rd of the amount shown in the mutation, whereas, there is no concept at all to extend the time for deposit of 1/3rd of price in presence of expressed provisions of Section 24 of the Punjab Pre-emption Act, 1991, which clearly provides deposit of 1/3rd of the sale price of the property in cash within a period not extendable in any case beyond thirty days of filing of the suit.
Similarly, I wonder how and wherefrom the learned Additional District Judge, Mianwali (Mr. Javed Iqbal Warriach), derived the concept of determining the probable value of the property before passing direction for deposit of 1/3rd at the time of institution of the suit, whereas Section 25 of the Punjab Pre-emption Act, 1991 simply talks of sale price of the property and such sale price has a reference in Proviso-II of the said Section, as sale price mentioned in the sale-deed or in the mutation and only, if the price so mentioned appears to be inflated, the Court can require deposit of 1/3rd probable value of the property. If the course directed by the learned Additional District Judge while passing the order for deposit of 1/3rd of the sale price under Section 24 of the Punjab Pre-emption Act, 1991 is allowed to be followed, then I am sure that the plaintiff may easily circumvent the object of provisions of sub-section (1) of Section 24 of the Punjab Pre-emption Act, 1991, by simply moving an application requiring the trial Court to first determine the probable value of the property after recording of evidence of both the sides, as directed by the learned Additional District Judge in the impugned order and in this way, he can keep on lingering the suit at a very initial stage, without complying with the provisions of sub-section (1) of Section 24 of Punjab Pre-emption Act, 1991 because in such an eventuality the aggrieved party may have a recourse to appeal, revision, writ petition, etc. against the determination of such probable value of the property by the trial Court, which was never the object of Section 24 of the above Act, for the reason that same was enacted for protecting the right of vendees against frivolous suits under the Pre-emption Act and it was in these circumstances that even the powers of the learned trial Court to extend time for deposit of 1/3rd of the sale price have been taken away, as against similar provisions contained in the old Punjab Pre-emption Act, 1913.
In the above mentioned circumstances, I am satisfied that the course adopted by both the learned Courts below, were neither legal or proper nor justified in any manner. If by dismissal of suit for non-deposit of 1/3rd of the sale price mentioned in the mutation or plaint, the learned trial Court acted without jurisdiction because the said non-deposit on the part of respondent was not due to his fault alone but was on account of the act of the Court as well. The learned Appellate Court equally acted without jurisdiction by directing the trial Court for fixing probable value of the disputed property after record evidence in the absence of any provision to this effect in the Punjab Pre-emption Act, 1991, while remanding case to the trial Court. Both the learned counsel for the parties, therefore, rightly agreed with the view of the Court that it would be in consonance with Section 24(1) of Punjab Pre-emption Act, 1991 as well as true spirit of the said Act, if the respondent/plaintiff is directed to deposit 1/3rd of Rs. 4,00,000/-, as mentioned in the mutation, within a period of thirty days from today.
Resultantly, the judgment of the learned Additional District Judge dated 11.3.2005 directing the trial to fix probable value of the suit property after recording evidence, being without lawful authority and jurisdiction, is set-aside and this civil revision is disposed of with the direction that respondent/plaintiff shall deposit 1/3rd of the sale price of Rs. 4,00,000/- as mentioned in the mutation, which would come to Rs. 1,34,000/- minus the amount, if already deposited, on or before 20.10.2005 with the trial Court, failing which the Plaint shall be deemed to have been rejected with costs. The parties are left to bear their own costs.
Copy of this order shall be sent to the trial Court as well as the learned Additional District Judge-II, Mianwali for perusal.
(A.A.) Case remanded.
PLJ 2006 Lahore 609
Present: Syed Hamid Ali Shah, J.
Mst. NAZIR BEGUM and 2 others--Petitioners
versus
MUHAMMAD TAHIR and another--Respondents
C.R. No. 2973 of 2004, decided on 28.3.2005.
(i) Transfer of Property Act, 1882 (IV of 1882)--
----Ss. 52 & 41--Concept of lis pendens--Object purpose and scope of S. 52 of Transfer of Property Act, 1882--Broad purpose of S. 52 of Transfer of Property Act 1882, is to protect parties to litigation against alienation by their opponents during pendency of suit--Application of principle of lis-pendens however cannot be stretched where property is purchased against valuable consideration without knowledge of pendency of litigation--Rights of such transferee are protected under S. 41 of Transfer of Property Act 1882, being bona fide purchaser. [P. 612] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, Rr. 1 & 2--Transfer of Property Act (IV of 1882), S. 52--Purchaser bound by doctrine of lis pendens--Entitlement to grant of ad-interim injunction--Despite applicability of doctrine of lis pendens, Court can pass temporary injunction to avoid multiplicity of proceedings and to prohibit introduction to strangers into lis to enlarge scope of dispute between parties, provided petitioner succeeds in establishing his case on parameters of prima facie case, balance of convenience and irreparable loss and injury--Refusal of Courts below to issue temporary injunction was thus, arbitrary exercise of jurisdiction vested in Courts--Temporary injunction was granted to petitioner. [Pp. 613 & 614] B
PLD 1976 Karachi 181; PLD 1975 Lahore 492; 1987 MLD 2828; PLD 1990 Lahore 82; PLD 2001 SC 440; 2002 SCMR 2003; 1999 CLC 1044; PLD 2003 SC 344; PLD 1982 Lahore 49 and PLD 1975 Lahore 492, ref.
Mr. Muhammad Shahzad Shaukat, Advocate for Petitioners.
Ch. Abdul Haque Sindhu, Advocate for Respondent No. 1.
Date of hearing : 8.2.2005.
Order
The petitioners have in the instant revision petition challenged orders dated 12.1.2004 passed by learned Civil Judge, Lahore and 9.12.2004 of the learned Addl. District Judge, Lahore respectively, wherein the relief of temporary injunction was declined to the petitioners.
Brief facts giving rise to the filing of this revision petition are that Muhammad Aziz, pre-decessor-in-interest of the parties, was owner of 80 kanals of land in village Raiwaind District Lahore, died in the year 1952, leaving behind Mst. Hidayat Bibi (widow), Mst. Nazir Begum (daughter), Mst. Ulfat Bibi (daughter) and Muhammad Tahir, (son). Among the said legal heirs, Mst. Hidayat Bibi died in the year 1975 and thereafter Mst. Ulfat Bibi died, latter is survived by Petitioners Nos. 2, 3 and Respondent No. 2. Muhammad Tahir, Respondent No. 1, got 80 kanals of land/suit property, mutated in his name through Mutation No. 1744 dated 15.5.1961. The mutation refers to an oral sale dated 1.5.1961 and a gift, without any distinction about the vendors and the donors.
Petitioner No. 1 instituted a suit for declaration and permanent injunction that mutation of sale and Gift No. 1744, is illegal, void, inoperative and ineffective against the rights of the plaintiffs. Petitioners Nos. 2 & 3 who impleaded in the array of defendants, were transposed as plaintiffs subsequently. The respondents are contesting the suit and also resisted the interim relief of injunction, sought by the petitioners, through application under Order XXXIX, Rule 1 & 2 read with sub-section 151 CPC. Learned trial Court dismissed the application of the petitioners for interim relief on 12.1.2004, which order was affirmed and upheld by the learned lower appellate Court vide its order dated 9.12.04. The Courts below have declined, the grant of temporary injunction, to the petitioners mainly on the grounds that impugned mutation was sanctioned in the year, 1961, presumption of truth is attached to it and it's cancellation requires proof through cogent evidence and as such the plaintiff has no prima facie case. Further the rights of the petitioner are protected under the principle of lis pendens. The principle of lis pendens, since holds the field, therefore, specific restraint order may not be the requirement of law.
Learned counsel for the petitioners has submitted that by refusing to grant temporary injunction to the petitioners, learned Courts below have enlarged the scope of dispute between the parties, The object of temporary injunction is to minimize the litigation between the parties and to avoid the multiplicity of proceedings. Learned counsel in this respect found support from the judgment in the case of "Mst. Muhammad Bibi vs. Additional Settlement Commissioner, Khairpur and 2 others" (PLD 1976 Karachi 181). He has further argued that the principle of lis pendens was made the sole basis of the impugned orders, which according to him is no ground to refuse the relief of temporary injunction. To support his contention, he has placed reliance on the following cases:--
(i) Sardar Wali Muhammad vs. Sardar Muhammad Iqbal Khan Mokal and 7 others (PLD 1975 Lahore 492).
(ii) Haji Gul Muhammad Haji Ismail and others vs. Munawar Ali Khan and others (1987 MLD 2828).
(iii) Fateh Muhammad vs. Muhammad Hanif and another (PLD 1990 Lahore 82).
(iv) Muhammad Zafar uz Zaman and 4 others vs. Faqir Muhammad through Legal Heirs (PLD 2001 S.C. 44).
(v) Muhammad Nawaz Khan vs. Muhammad Khan and 2 others (2002 SCMR 2003).
It was also contended that the rights of bona fide purchaser are protected under Section 41 of Specific Relief Act and principle of lis pendens cannot hinder the rights of a bona fide purchaser. He lastly submitted that the Courts below have failed to take into consideration the questions of irreparable loss and injury as well as the balance of convenience and the case law referred in this respect was not considered.
Learned counsel for the respondents, on the other hand, supported the impugned orders and contended that the petitioners have approached the Court with unclean hands and falsely stated the year of death of Mst. Hidayat Bibi as 1960, in earlier plaints and corrected the year of death as 1975, in the third plaint (plaint originally filed was amended twice during the course of proceedings). He has stated that the impugned mutation was entered in the last column of register of mutations by Patwari on 15.5.1961, Girdawar made verifications on 20.5.61 and the same was presented for the attestation. The entires of mutation were compared with the revenue record. The mutation was attested after complying with all the formalities and the same remained unchallenged until 17.9.2003, which speaks of it's genuineness. He has argued that certain portion of suit-land has already been alienated through registered sale-deeds and remaining land still vests in the name of Respondent No. 1, in the revenue record and has referred to Misl-e-Miadi in this respect. He has placed reliance on the judgments in the cases of "Syed Ahmad Shah vs. Lal Khan and 8 others" (1999 CLC 1044) and "Irshad Hussain vs. Province of Punjab and others" (PLD 2003 S.C. 344) to contend that the relief of temporary injunction was rightly refused to the petitioners on the basis of principle of lis pendens. The respondents learned counsel also argued that the suit under reference is hopelessly time barred and the Courts below have rightly refused the grant of temporary injunction, in a suit which is time barred and concurrent findings arrived at, by the Courts, do not call for interference in revisional jurisdiction.
I have heard the learned counsel for the parties and perused the material on the record.
Learned Courts below have declined the relief of temporary injunction to the petitioners on the ground that the rights of the petitioners are protected under the doctrine of lis pendends. There is no doubt that the object and scope of the doctrine of lis pendens, contemplated in Section 52 of the Transfer of Property Act is that neither party to litigation can alienate the property in dispute so as to effect his opponent. During the course of litigation nothing new should be introduced which means that neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to effect his opponent. The primary object is to protect parties to a litigation against alienation by their opponents during the pendency of the suit. It has been held by the superior Courts, within and outside the country, that broad purpose of Section 52, is to maintain the status quo un-effected by the Act, to parties to litigation pending its determination. The rights of successful litigants are protected against alienation but the application of this principle cannot be stretched too far, as in certain cases where a property is purchased against valuable consideration without the knowledge of the pendency of a litigation, the rights of such transferee are protected u/S. 41 of the Transfer of Property Act, being bona fide purchaser.
Learned counsel for the petitioners in order to establish his prima facie case, has referred to the judgment in the case of "Ghulam Ali and 2 others vs. Mst. Ghulam Sarwar Naqvi" (PLD 1990 S.C. 1) to contend that possession held by one co-sharer in the joint property would be taken to be the possession of other co-sharers and no adverse possession can be claimed. Respondent No. 1 was in possession of the suit land on behalf of the petitioners as well and as such the question of limitation does not arise. He has further referred to the judgment in the case of "Jamil Ahmad vs. Provincial Government of West Pakistan and 4 others" (PLD 1982 Lahore 49) to contend that temporary injunction is not granted where perpetual injunction is barred u/S. 56 of the Specific Relief Act and it is to be granted where provisions of Section 56 of the Specific Relief Act is attracted. The petitioners are entitled to the grant of injunction to prevent multiplicity of proceedings and as there is continuing breach of obligation, thus it provides an opportunity for filing a suit every time and in such cases injunction shall not ordinarily be refused.
The applicability of the doctrine of lis pendens has been held by this Court as no ground for refusing to issue temporary injunction in case titled "Sardar Wali Muhammad vs. Sardar Muhammad Iqbal Khan Mokal and 7 others" (PLD 1975 Lahore 492) with the following main observation:--
"I am of the view that the applicability of principle of lis pendens is no ground for refusing to issue a temporary injunction. In case where prima facie the property in suit is jointly owned by a party, the denial of the right of one party by the other may be a source of causing irreparable loss and injury. In the present case the suit has been filed for rendition of accounts against Sardar Wali Muhammad. If the alienates this property, the persons who will be in possession of the property by way of alienation will have to be impleaded as party to the case at least in order to compel them to make a restitution of whatever income and profits the plaintiff is deprived. In these circumstances, I am of the view that the temporary injunction was rightly issued and the balance of convenience was in favour of the issuance to temporary injunction inter alia on the ground that it would avoid multiplicity of suits or inclusion of stranger to the suit. The appeal of Sardar Wali Muhammad has no force and is liable to be dismissed."
The question of grant of injunction on the ground that the purchaser was bound by the doctrine of lis pendens was also discussed in the case of "Haji Gul Muhammad Haji Ismail and others vs. Munawar Ali Khan and others" (1987 MLD 2828) wherein it was held as under:--
"The object of granting interim injunction is to maintain the status quo and not to disturb it. The Defendants 3 to 6 therefore cannot be allowed to sell, alienate or deal in any manner whatsoever or develop or to construct a building or to change the entire situation to the disadvantage of the other party."
In order to prohibit and avoid introduction of strangers the grant of injunction was upheld by this Court in the case of "Fateh Muhammad vs. Muhammad Hanif and another" (PLD 1990 Lahore 82) in the following terms:--
"Though rule of lis pendens applied to the suit for specific performance and amply protected the plaintiff against apprehended pendent elite alienations, yet in order to prohibit and avoid introduction of strangers into the lis which is likely to enlarge the scope of dispute between the parties, injunction ought to issue to prohibit the defendants from transferring the land in suit."
The criteria as mentioned herein above, in the cases cited supra, there is no cavil with the proposition that despite applicability of the doctrine of lis pendens, the Court can pass temporary injunction to avoid multiplicity of the proceedings and to prohibit the introduction to strangers into lis to enlarge the scope of dispute between the parties, provided the petitioner succeeds in establishing his case on the parameters of prima facies case, balance of convenience and irreparable loss and injury, in its favour.
The learned Courts below have not considered the case in the light of the above point and the cases relied upon by the learned counsel for the petitioners have not been discussed in the impugned orders. The refusal to issue temporary injunction by the learned Courts below is arbitrary exercise of jurisdiction vested in the Courts.
For the foregoing discussion, this revision petition is accepted and the orders dated 12.1.2004 and 9.12.2004 passed by the learned Civil Judge, Lahore and learned Addl. District Judge, Lahore respectively, are set aside. Resultantly, I grant the petitioners temporary injunction by accepting the application filed u/S. 39 Rules 1 & 2 CPC. Parties are left to bear their own costs.
(A.A.) Revision accepted.
PLJ 2006 Lahore 614 [Multan Bench Multan]
Present: Fazal-e-Miran Chauhan, J.
AMJAD FAROOQ and 9 others--Petitioners
versus
GUL HAMEED KHAN ROKHRI MINISTER FOR REVENUE, RELIEF AND CONSOLIDATIONS PUNJAB, LAHORE and 2 others--Respondents
W.P. No. 5179 of 2005, decided on 10.10.2005.
Constitution of Pakistan, 1973--
----Art. 199--Administrative Order--Legality--Exercise of judicial functions of specified statutory authorities--Interference by administrative authorities in exercise of such powers not warranted by law, unless statute by itself contains provision in that behalf--Findings of fact recorded by Punjab Service Tribunal and acted upon by Revenue authorities in compliance of order of Service Tribunal--Minister of Revenue has no authority and power to interfere in such finding--Order of Service Tribunal having not been challenged further before Supreme Court had attained finality--Order passed by Revenue Minister being without lawful authority was set aside and all subsequent inquiries and proceedings conducted by respondents in compliance of order in question, were also struck down. [Pp. 618 & 619] A & B
1980 SCMR 509, ref.
Ch. Saghir Ahmad, Advocate for Petitioners.
Mr. M. Qasim Khan, Asstt. A.G. along with Rana Nazir Ahmed, Naib Tehsildar on behalf of Respondent No. 3.
Mr. Abdur Rahseed Qureshi, Sr. Clerk on behalf of Respondent No. 2.
Ch. Anwar-ul-Haq, Advocate for Respondents Nos. 4 to 10.
Date of hearing : 10.10.2005.
Order
By filing this writ petition, Amjad Farooq-petitioner No. 1 had called in question the order dated 4.8.2005 passed by Gull Hameed Khan Rokhri-Respondent No. 1 to be illegal, without lawful authority and the same may be quashed.
"It is observed that the Departmental Promotion Committee shall score out the condition of passing of the examination of Kanugos by the Patwaris as the rules were subsequently amended, details given in the preceding paragraph of this judgment, and shall not form part of the criteria which shall come up for consideration of merit policy. The Departmental Promotion Committee shall be convened within a period of four months from today for consideration of the promotion of the appellants and other to the post of Kanugos".
In the light of the judgment passed by the Punjab Service Tribunal, Board of Revenue issued direction to the Executive District Officer (R) regarding the implementation of the decision of the Punjab Service Tribunal and the Govt. of Punjab also issued direction to the E.D.O.R, Rajanpur to implement the judgment of Punjab Service Tribunal. In the light of judgment passed by the Punjab Service Tribunal, direction issued by the Board of Revenue and Government of Punjab, the Departmental Promotion Committee was constituted and its meeting was scheduled to be held on 29.3.2005, but some of the employees challenged the Constitution of D.P.C. and its proceedings before this Court in W.P. Nos. 1610 and 2452 of 2005. In the interim order dated 29.3.2005 passed in C.M. No. 2/2005 issued notice to the respondents that the decision of the D.P.C. shall not be acted upon till the final decision of this writ petition. The D.P.C. meeting was held on 12.4.2005 considering 170 Patwaris for promotion as Kanugos but finally recommended 12 Patwaris including the petitioners, but due to the interim order passed by this Court in W.P. Nos. 1610 and 2452 of 2005, decision was not acted upon. The writ petition was dismissed vide judgment dated 28.7.2005 with the observation that if writ petitioners have any grievance, they shall approach the Punjab Service Tribunal. After the decision of writ petition, there was no alternate but to implement the decision of Punjab Service Tribunal. The E.D.O. (R) vide notification dated 2.8.2005 ordered that the petitioners are entitled for the salary of Kanugos from 2.8.2005 i.e. The joining date and it was further held that Patwaris, who were promoted in D.P.C. held on 26.8.2005 as Kanugos are not entitled of salary as Kanugos. After the implementation of the decision of Punjab Service Tribunal and the decision given by this Court, there were no justification for the employees, who were parties before this Court in the writ petitions, before Punjab Service Tribunal to agitate the matter further but they again on one side filed departmental appeal before the Member Board of Revenue and on the other side, they challenged the judgment passed in W.P. Nos. 1610 and 2452 of 2005 in the Hon'ble Supreme Court of Pakistan. Surprisingly, the employees who filed departmental appeal before Member Board of Revenue and CPLA in the Hon'ble Supreme Court approached the Minister for Revenue of Punjab through one application by concealing all the facts and by not brining the facts to the notice of Minister that the matter has been finally decided by the Punjab Service Tribunal or by the High Court. Respondent No. 1 marked the application for inquiry to D.C.O., Rajanpur and further implementation, recommendations was ordered to be held in abeyance till further order. In the light of direction given by Respondent No. 1, D.C.O. Rajanpur marked the application E.D.O.(R) for compliance and the E.D.O. (R) stopped the implementation of the notification issued by D.O.(R) in compliance of the order dated 4.8.2005 passed by Respondent No. 1.
It is contended by learned counsel for the petitioners that promotion of any civil servant is terms and conditions of service, which has to be made strictly in accordance with law by the competent authority, and if any person is aggrieve, he may file departmental appeal as well as to challenge the same before the Punjab Service Tribunal. Respondent No. 1 has no authority to pass any order regarding promotion, transfer or posting of the employees. The competent authority in revenue hierarchy in the District Officer (R), Executive District Officer (R) and the Board of Revenue, Punjab, the Minister's function under the rule of business is only administrative in nature and interference in promotion, transfer or posting of the civil servant by the Minister has already been struck down by the Hon'ble Supreme Court of Pakistan in so many cases. Further contends that the impugned order passed by the Minister, whereby, the implementation of the D.P.C. recommendations in the light of judgment passed by the Punjab Service Tribunal and the direction given by P.S.T. dated 26.4.2005 has been held in abeyance is totally illegal, unlawful, without jurisdiction and cannot be sustained in the eye of law. The D.P.C.'s recommendations dated 12.4.2005 have already been implemented after the notification dated 2.8.2005 by E.D.O. (R). The order passed by Minister (Respondent No. 1) dated 4.8.2005 have no retrospect effect and the direction not to implement the notification is also illegal and without lawful authority. An order, once has been implemented, cannot be set aside through an administrative order only the remedy available to the aggrieved person is to challenge the same before the competent forum constituted under the law. The aggrieved persons had already challenged the D.P.C. recommendation and its implementation before M.B.R. through departmental appeal and that appeal is still sub-judice. If any administrative order is passed, it will definitely prejudice the judicial proceedings pending before the M.B.R.
Conversely, learned Assistant Advocate-General appearing on behalf of respondents states that the direction order was issued by Muhammad Arshad Gopang, who was not District Officer(R), having the powers of District Collector, was competent to issue order but as the post of the District Officer (R), Rajanpur was vacant, he was temporarily given charge only to look after the routine work of the post. He was not competent to issue direction orders because it is mandatory for him having the powers of District Collector. It is admitted by Respondent No. 2 that the Minister for Revenue, Relief and Consolidation, Punjab (Respondent No. 1 ) on the application of the employees order Respondent No. 2 to conduct the inquiry into the promotion of junior Patwaris as Kanugos and also held din abeyance the orders passed by the officiating District Officer (R) in compliance of the order of Punjab Services Tribunal. Further contends that on the direction of the Minister, he had conducted the inquiry and found that promotion of Patwaris as Kanugos has not been done according to the rules and regulations for promotion because many senior Patwaris were ignored due to the reason that either their ACRs were not complete or these were not counter-signed and instead of deferring them junior Patwaris, were promoted which means that the seniors were ignored and were deprived without any justification.
Learned counsel appearing on behalf of Respondents Nos. 4 to 10 argued that the Minister is the Incharge of the Department and on application, if some irregularity is found by him, he can order for an inquiry with regard to the same to rectify the illegality or injustice done by the employees.
I have heard learned counsel for the parties, perused the record, the reply filed by the respondents and relevant law on the subject. The point involves in the instant writ petition is as to whether Minister for Revenue (Respondent No. 1) while exercising powers of supervision vesting in the Government, does possess powers to interfere with exercise of judicial functions of specified statutory authorities. In the instant case, on the basis of Departmental Promotion Committee recommendation, District Officer (R) issued letter dated 26.8.2002 regarding the promotion of 23 Patwaris as Kanugos. The present petitioners were promoted by the criteria adopted by the D.P.C. Some of the petitioners filed an appeal before the Punjab Services Tribunal. P.S.T. vide, its judgment dated 23.5.2003 announced on 2.6.2003 accepted the appeal with the observations as under:--
"It is observed that the Departmental Promotion Committee shall score out the condition of passing of the examination of Kanugos by the Patwaris as the rules were subsequently amended, details given in the preceding paragraph of this judgment, and shall not form part of the criteria which shall come up for consideration of merit policy. The Departmental Promotion Committee shall be convened within a period of four months from today for consideration of the promotion of the appellants and other to the post of Kanugos".
In the light of judgment passed by the Punjab Services Tribunal, the Board of Revenue issued direction to the E.D.O. (R) for implementation of the decision of the Punjab Services Tribunal. Government of the Punjab also issued direction to E.D.O. (R), Rajanpur to implement the judgment of the Punjab Services Tribunal immediately in the light of direction given by the Board of Revenue and the Government of the Punjab. The Departmental Promotion Committee was constituted and its meeting was scheduled to be held on 29.3.2005 when two writ petitions were filed in this Court and the Departmental Promotion Committee was directed to proceed with the meeting, but the decision of the said Committee shall not be acted upon till the decision of these writ petitions. However, the said writ petitions were dismissed on 28.7.2005 with the observations that if the petitioners have any grievance, they shall approach the Punjab Services Tribunal. The judgment of this Court has been challenged by filing C.P.L.A. in the Hon'ble Supreme Court of Pakistan, which is still pending. On the other hand, in compliance of the order of the Punjab Services Tribunal and the direction issued by the Board of Revenue, Punjab and in the light of D.P.C. recommendation, notification dated 2.8.2005 was passed by the E.D.O. (R) that the petitioners are entitled for the salary of Kanugos from 2.8.2005 i.e. the joining date. It was further held that the Patwaris, who were promoted by the D.P.C. held on 26.8.2005 as Kanugos are not entitled to salary of Kanugos, the employees, who were party before the Punjab Services Tribunal. Respondent No. 1 vide his order dated 4.8.2005 directed that the implication of D.P.C. recommendation passed in compliance of the order of Punjab Services Tribunal be held in abeyance.
The learned A.A.G. as well as learned counsel for Respondents Nos. 4 to 10 had failed to show any law or authority, which confers the powers upon Minister (Respondent No. 1) authorizing to act in revision or review over the judicial orders made by the Punjab Services Tribunal and this Court in Writ Petition Nos. 1610 and 2452 of 2005. The general power of supervision vesting in the Government has never been deemed to include a power to interfere with the exercise of judicial functions of the specified statutory authorities unless the statute by itself contains a provision in that behalf.
In this view of the matter, reliance can be placed on Abdul Aziz vs. Member (Colonies), Board of Revenue Punjab etc. (1980 SCMR 509). Thus, it is held that the Minister for Revenue, Relief and Consolidation Punjab Lahore (Respondent No. 1) had no jurisdiction or power to go behind the finding of fact recorded by the Punjab Services Tribunal and acted upon by the Revenue authorities in compliance of the order of the said Tribunal. As the order of the Punjab Services Tribunal was not challenged by any of the party before the Hon'ble Supreme Court and it attains finality.
The order dated 4.8.2005 passed by Respondent No. 1 directing District Co-ordinating Officer, Rajanpur (Respondent No. 2) to hold an inquiry report regarding the promotion of the petitioners. Since the order passed by Respondent No. 1 is without lawful authority, same is set-aside and all the subsequent inquiries and proceedings conducted by Respondent No. 2 in compliance of the order of Respondent No. 1 are also struck down. The effected employee, who had filed appeal before the Member Board of Revenue, Punjab and also in the Hon'ble Supreme Court of Pakistan shall pursue the same and the respondents Department shall not pass any order till the decision of the Hon'ble Supreme Court of Pakistan W.P. is allowed.
(A.A.) Order accordingly.
PLJ 2006 Lahore 619 (DB)
Present: Mian Hamid Farooq and Syed Hamid Ali Shah, JJ.
ANJUMAN BHAHBOOD-E-MUTASSRIN TAJ COMPANY LTD. through its PRESIDENT--Appellant
versus
REGISTRAR OF COMPANIES COMPANY REGISTRATION OFFICE, AL-JANAT BUILDING BANK SQUARE, LAHORE and another--Respondents
I.C.A. No. 9-L of 2003, heard on 6.4.2005.
Companies Ordinance, 1984 (XLVII of 1984)--
----Ss. 284 to 287--Scheme for re-arrangement of management of Company not approved by Company Judge--Legality--Court before sanctioning any scheme of re-arrangement of management of company has to examine and satisfy itself whether proposed scheme was fair and reasonable taking into consideration all material facts, interest of all classes and bonafide of petitioner--Scheme in question, dealt with of un-secured creditor and was silent with regard to interests of secured creditors--Any scheme protecting rights and interests of only one class at the alter of interests of other classes in a company is not required to be approved by Court--Such scheme being unfair and un-reasonable, company judge has rightly rejected the same calling for no interference. [Pp. 621 & 622] A, B & C
Law Lexicon Vol. II. P. 144; Corpus Juris Secondum Vol. 57. P. 1044; 1989 CLC 818; (1890) 44 Ch. D. 402; 39 Ch. D. 582; 5 Ch. D. 894, ref.
Mr. Khurram Saeed, Advocate for Appellant.
Nemo for Respondents.
Date of hearing : 6.4.2005.
Judgment
Syed Hamid Ali Shah, J.--Brief facts giving rise to this appeal are that the effectees of Taj Company formed and registered an association for their welfare with the name and style of Anjuman-e-Behbood-e-Mutassarin-e-Taj Company. They filed petition under Sections 284 to 287 i.e. C.O. No. 9 of 1998, seeking therein the sanction of scheme of re-arrangement, with regard to the management of Company. The scheme was proposed mainly for the transfer of the management to the unsecured creditors subsequent to their agreement to swap their claims for shareholding in the respondent company or alternately the transfer of the assets of the company, to a company to be set up by unsecured creditors. The petition (C.O. 9 of 1998) was filed, when other two petitions i.e C.O. No. 45 of 1990 under Section 290 of the Companies Ordinance, 1984 and C.O. No. 12 of 1997 under Section 305 for winding up of the Company (both filed by the Joint Registrar of Companies), were pending. The order for the winding up of the Company was passed in the latter petition on 18.5.1998. The Court appointed three joint Official Liquidators who took over the assets as well as the record of the Company. The petition remained pending for a considerable long time without any order passed on it, until 12.2.2002, when it was held that the proposed scheme of arrangement be presented in a meeting before the unsecured creditors of the company. Various modes of holding the meeting were considered on different dates and ultimately the learned Company Judge vide order dated 17.7.2002 ordered the holding of a meeting of the effectees/creditors of the company for the consideration of the scheme of arrangement.
The learned Company Judge, provided guidelines for holding of the meeting, after appointing Mr. Azmat Saeed Sheikh, Advocate, (as he then was) as Chairman of the meeting. The meeting was held on 15.9.2002 and the report by the Chairman was submitted within stipulated period of two weeks. The appellant filed the objections through C.M. No. 877 of 2002, seeking therein the declaration that proceedings and result of the meeting be declared illegal, as the appointed Chairman had not followed the directions given by the Court, in holding the meeting. The report by the appointed Chairman reveals that the proposed scheme was rejected by 65.51% and was approved by 33.03% voters, representing the amount of deposits of Rs. 261,851,837/- and Rs. 132,022,837/- respectively. The scheme was not accepted by the simple majority of effectee/creditors, while Section 284(2) provides the approval of scheme by 3/4th majority. Learned Judge in Chamber overruled the objections and dismissed C.M. No. 877 of 2002 with costs. Hence this appeal.
Learned counsel for the appellant has contended that the Court imposed certain conditions vide order dated 17.7.2002 and provided guidelines for the holding of the meeting but the meeting was not held in terms of the directions and guidelines. He stated that the voters were allowed to pole their votes without any scrutiny. It was further submitted by referring to the definition of word meeting' inLaw Lexicon', Volume-II page 144 and Corpus Juris
Secondon Volume 57 at page 1044 that the meeting in question as conducted by the appointed Chairman does not qualify to be a meeting. Further added that the basic requirement of meeting is, coming together of persons for the purposes discussion and acting upon some matter or matters in which the members have common interest. While the impugned meeting lacked a necessary ingredient of a meeting, viz the opportunity to the members/participants for discussion on the agenda, therefore, the meeting under reference is no meeting in the eyes of law.
We have heard learned counsel for the appellant and perused the record.
The perusal of the record reveals that the notices of the meeting were published in newspapers with wide publicity i.e. daily Jang, Nawa-e-Waqt and the News. The voters, mentioned in the list provided by the administrator, were issued notices through pre-stamped envelopes under postal certificates. The voters, who were thousands in number, came from various parts of the country to attend the meeting. They were given the ballot papers, after proper scrutiny of papers. They were allowed in the batches of 20 effectee at a time to cast their votes. There was unruly crowd, who disrupted polling but it was the ideal arrangement of the Chairman that situation was handled and polling continued till the end of the day. The learned Judge in Chamber has held that the meeting was conducted in the manner as directed by the Court in its order dated 17.7.2002. We find from the record that the meeting was held according to the guidelines, in the best possible manner, in the existing circumstances and find no justification to set at naught the whole proceedings of the meeting simply on the ground that there was slight or negligence deviation.
There is another aspect of the matter that the scheme of arrangement is not liable to be approved or sanctioned, only on the ground that the resolution to this effect has been passed by 3/4th majority. The Court does not sit merely to register the decision of the meeting. The Court before sanctioning a scheme has to examine and satisfy itself whether the proposed scheme is fair and reasonable, taking into consideration all the material facts, interest of all the classes and the bona fide of the petitioner. The Honourable Sindh High Court in the case of Lipton Pakistan Ltd. reported as 1989 CLC 818, has dealt with this question in the following manner:--
"------(iii) Lastly, in exercising its discretion under Sections 284 and 287, the Court is not merely acting as a rubber stamp. It is the function of the Court to see the background and object of the scheme, is a reasonable one and if the Court so finds it is not for the Court to interfere with the collective wisdom of the members of the Company. When once the Court finds that the scheme is fair one, then it is for the objector to convincingly show that the scheme is unfair and that, therefore, the Court should exercise the discretion to reject the scheme, notwithstanding the views of a very large majority of the members shareholders that the scheme is a fair one."
There are other classes of creditors in the Company, specially the secured creditors comprising of Banking Companies and other DFIs. The proposed scheme is silent with regard to the rights and interests of this class. A scheme protecting the rights and interests of only one class at the altar of the interests of other classes in a company, is not required to be approved by the Court. While holding so we find support from the judgments in the English jurisdiction. In the case of Empire Mining Company. [(1890) 44 Ch. D 402] the proposed scheme was declined as the shareholders were given advantage of payment in full with 13s per share as against payment to the unsecured creditors full in cash. In another case Barrow Haemalite Steel Company (39 Ch. D. 582) the scheme of arrangement depriving the debenture holders of their security, was refused. The Court in the case of Griffith versus Paget (5 Ch. D 894) declared the scheme of arrangement, ignoring rights of debenture holders (who were preference shareholders), as invalid.
The scheme of arrangement proposed by the appellant is silent with regard to the safeguard of the interests of other classes specially the secured creditors. Such scheme is unfair and unreasonable, therefore, we are not inclined to interfere and unsettle the judgment passed by the learned Single Judge in Chamber. We are also conscious of the fact that the proposed scheme has not been approved by the effectees themselves and the winding up proceedings have already been a longer course, the proposed scheme, in such circumstances, will enhance the agony of all the creditors who have already suffered immense loss.
For the foregoing reasons we do not find any merit in this appeal, which is hereby dismissed in limine.
(A.A.) Appeal dismissed.
PLJ 2006 Lahore 623 [Multan Bench Multan]
Present: Muhammad Nawaz Bhatti, J.
MUHAMMAD AZMAT--Petitioner
versus
MEMBER BOARD OF REVENUE MEMBER JUDICIAL-III, PUNJAB, LAHORE and 3 others--Respondents
W.P. No. 5492 of 2003, heard on 3.10.2005.
West Pakistan Land Revenue Rules, 1968--
----R. 19--Constitution of Pakistan (1973), Art. 199--Appointment as Lambardar--Petitioner's appointment as Lambardar by Collector and maintained by Commissioner, set aside by Board of Revenue--Legality--Board of Revenue, while deciding matter in question, has failed to appreciate that when cause of action accrued "Rule of primogeniture" was not declared to be un-Islamic by Shariat Bench of Supreme Court--Shariat Bench of Supreme Court has given finding in Maqbool Ahmad Qureshi's case (PLD 1999 SC 484) against application of rule of primogeniture for appointment of lambardar and declared that rule against injunctions of Islam--Supreme Court's decision had no retrospective effect on the past cause of action on basis where of decision of Board of Revenue rested--Impugned order passed by Board of Revenue was set aside and case was remanded to Board of Revenue for decision afresh in accordance with law applicable to case after giving full opportunity hearing to parties. [P. 626] A
2003 SCMR 708; PLD 1999 SC 484; 1991 CLC 667; PLD 1973 Lahore 359 and PLD 1981 SC 553, ref.
Mr. Saghir Ahmad Bhatti, Advocate for Petitioner.
Ch. Abdul Ghani, Advocate for Respondents.
Date of hearing : 3.10.2005.
Judgment
Through this writ petition the petitioner has challenged the vires of orders dated 23.5.2003 and 11.10.2003 passed by Respondent No. 1 Member Board of Revenue, Punjab, Lahore, whereby he accepted the revision petition, set aside the impugned order dated 7.6.1999 passed by the Commissioner, Multan Division, Multan and appointed Respondent No. 4 as permanent Lambardar.
Brief facts of the case are that Haq Nawaz (deceased) father of petitioner was permanent Lumbardar of Chak No. 94/10-R Tehsil and District, Khanewal and on his death the District Collector Khanewal invited fresh applications on 3.6.1991 for filling the vacancy. As many as fourteen candidates including petitioner and Respondent No. 4 submitted their applications for the said post. After fulfilling all the formalities the petitioner Muhammad Azmat was appointed as Lumbardar vide order dated 7.2.1994 passed by AC/Collector, Khanewal. Being aggrieved Respondent No. 4 preferred an appeal before the Commissioner, Multan Division, Multan which was dismissed vide order dated 7.6.1999. Respondent No. 4 being aggrieved filed a Revision Petition before the Member Board of Revenue Punjab, Lahore which was accepted vide order dated 23.5.2003 and both the orders passed by District Collector as well as Commissioner Multan Division were set aside and Respondent No. 4 was appointed as Lumbardar. Petitioner filed review petition against the order dated 23.5.2003 before the Member Board of Revenue, Punjab, Lahore, which was dismissed vide order dated 11.10.2003 hence, this writ petition.
Learned counsel for the petitioner submits that the impugned orders passed by Member Board of Revenue are against the law and facts of case and are not sustainable in the eyes of law as while passing the same he has wrongly held that petitioner's property is insufficient to stand security for Zar-e-Bhrat, this observation is against the record as is evident from the reports of Tehsildar and A.C/Collector; that it has wrongly been held that petitioner is defaulter of Agricultural Development Bank of Pakistan, there is no evidence on the record relating to this aspect of the matter; that Member Board of Revenue has wrongly set aside the concurrent findings of both the Courts below without any material; that the impugned orders have been passed mechanically, arbitrarily and without application of judicial mind to the peculiar circumstances of the case and also based on surmises and conjectures and far-fetched conclusions. Further submits that the impugned orders are not in consonance with the real facts, they are based on malafide and liable to be set aside. He has relied on "Noor Muhammad Lambardar vs. Member (Revenue) Board of Revenue, Punjab, Lahore and others" (2003 SCMR 708), contending thereby that the rule of primogeniture was applicable in the petitioner's case up to 1.9.1999, on which date Shariat Appellate Bench of Supreme Court in "Maqbool Ahmad Qureshi vs. Islamic Republic of Pakistan and others" (PLD 1999 S.C. 484) gave a verdict against the application of rule of primogeniture for the appointment of lambardar and declared the said rule against the injunctions of Islam.
On the other hand learned counsel appearing on behalf of Respondent No. 4 has contended that as per rule of primogeniture eldest son is entitled to the post of Lambardar but petitioner owns only 1 kanal and 16 marlas of land which is insufficient for Zar-e-Bhrat; that performance of petitioner as temporary Lambardar was not upto to mark; that petitioner is uneducated and is a man of ill repute whereas respondent owns 40 kanals of land and has passed primary school and also belongs to majority community. He has relied on "Muhammad Hassan vs. The State" (1991 CLC 667) and "Allah Ditta vs. Mian Nasir Ahmad and another" (PLD 1973 Lahore 359).
I have heard learned counsel for the parties and carefully perused the record. Petitioner is the son of Haq Nawaz (deceased) Lambardar. As per report submitted by the Tehsildar he owns 3 kanals and 16 marlas land. Perusal of record shows that he had purchased more land measuring 5 kanals and 11 marlas in the same locality and as such his ownership was sufficient to meet the requirement of zar-e-bhrat as it is admitted fact that total revenue of the revenue estate becomes upto Rs. 29,000/- and it has no where incorporated that how much land a Lumbardar should own. This condition is only to meet the requirement of Zar-e-Bharat. On the other hand respondent is stranger and is also having primary pass certificate so education of the parties is equal. So far as the respondent's stand that petitioner has been defaulter, he has not placed on record any material from where it can be presumed that petitioner is defaulter.
The Member Judicial-III Board of Revenue vide impugned order has observed that petitioner is defaulter of agricultural Development Bank of Pakistan and also defaulter of Government dues, he is uneducated and man of ill repute but nothing has been said in the judgments of the lower hierarchy. The findings of the Member Board of Revenue that the claim of petitioner for appointment as a lambardar on the principle of primogenitor is un Islamic. The Member Board of Revenue could not appreciate that when the cause of action accrued in the petitioner's case the rule ibid had not been declared un Islamic by the Shariat Appellate Bench of Supreme Court of Pakistan.
The petitioner was appointed temporary lambarder being son of deceased Haq Nawaz permanent lambardar of the estate Chak No. 94/10-R Tehsil and district Khanewal. He was appointed as permanent lambarder by the Collector keeping in view the hereditary claim under Rule 19(2) of the West Pakistan Land Revenue Rules, 1968 which reads as under:--
(2) In other estates, the nearest eligible heir, according to the rules of primogeniture shall be appointed unless some special custom of succession to the office be distinctly proved but subject, in every case, to the following provisions:--
(a) The claim of collateral of the last incumbent to succeed shall not be admitted solely on the ground of inheritance, unless the claimant is a descendant, in the male line, of the paternal great grand father of the last incumbent;
(b) Where a headman has been dismissed in accordance with the provisions of Rule 18 the Collector may refuse to appoint any of his heirs:--
(i) If the circumstances of the offence, dereliction of duty or disqualification, for which the headman was dismissed, make it probable that he would be unsuitable as a head man;
(ii) If there is reason to believe that he has connived at the offence or dereliction of duty for which the headman has been dismissed;
(iii) If any disqualification for which the headman has been dismissed, attaches to him;
(iv) If he may reasonably by supposed to be under influence of the dismissed headman or his family to as undesirable extent."
The allegations leveled by Abdur Rehman Respondent No. 4 against the petitioner were found pre-mature and that is only petitioner who was appointed permanent lambardar. While deciding the matter, in the revision, the Member Board of Revenue has failed to appreciate that when the cause of action accrued the Hon'ble Shariat Bench decision was not in the field and the decision had no retrospective effect on the past cause of action as had been held in "Pakistan International Air Lines Corporation vs. Messrs Pak Saaf Dry Cleaners" (PLD 1981 S.C. 553). Keeping in view the rule of primogeniture there is no disqualification imputed to the petitioner.
For what has been discussed above instant writ petition is accepted, impugned orders dated 23.5.2003 and 11.10.2003 passed by Member Board of Revenue are set aside and the case is remanded to the Member Board of Revenue to decide afresh on merits in accordance with law applicable to the case after giving full opportunity of hearing to both the parties.
(A.A.) Case remanded.
PLJ 2006 Lahore 626 (DB)
Present: Ch. Ijaz Ahmad and Muhammad Khalid Alvi, JJ.
NASIR KHAN--Appellant
versus
PROVINCE OF PUNJAB through the SECRETARY IRRIGATION, PUNJAB, LAHORE and 2 others--Respondents
R.F.A. No. 57 of 2001, heard on 6.9.2005.
(i) Administrative Order--
----Respondent `Department' not making any effort through legal means/legal process for bringing on record amended written statement and thus, not pursuing matter involved in suit in accordance with law diligently--Copy of present judgment was directed to be sent to Secretary concerned to probe into the matter--In case persons found to be responsible for such negligence were pointed out, they would be proceeded against under Efficiency and Discipline Rules and also criminal proceeding be initiated against them. [Pp. 630 & 631] C
(ii) Arbitration Act, 1940 (X of 1940)--
----S. 34--Arbitration agreement--Court's power to stay legal proceedings--Defendant before filing his written statement or taking any other step in proceedings can apply to Court to stay proceedings so that matter involved therein could be referred to arbitration under agreement to which he and plaintiff were parties--Plaintiff already having invoked jurisdiction other than Arbitrator by way of initiating proceedings against defendant has by his choice waived his right to Arbitration--Defendant before joining proceedings if does not make such application for stay of proceedings, he would be deemed to have waived his right of arbitration. [P. 629] A
(iii) Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 17 & O. XII, R. 6--Judgment of High Court not challenged before any higher forum would be binding upon parties on principle of res-judicata--Operative part of judgment in earlier litigation shows that the same to the extent of order passed against respondent under O. XII, R. 6 C.P.C. only was set aside and order passed under O. VI, R. 17 C.P.C. was not set aside. [P. 630] B
PLD 1981 SC 553 and PLD 1987 SC 145, ref.
Mr. Riaz Karim Qureshi, Advocate for Appellant.
Mr. Muhammad Hanif Khatana, Addl. A.G. for Respondents.
Date of hearing : 6.9.2005.
Judgment
Ch. Ijaz Ahmad, J.--Brief facts of the case are that the appellant filed a suit for recovery of an amount of Rs. 26,48,159/- on the basis of the work awarded by the respondent to the appellant before the learned Civil Judge, Okara. According to the averments of the plaint, the appellant had completed the work. The respondent filed written statement and controverted the allegations leveled in the plaint. The suit was decreed in the first instance vide judgment and decree dated 11.1.1999 under Rule 6 of Order XII C.P.C. which was challenged by the respondents before this Court through R.F.A. No. 184/1999, which was allowed vide order dated 28.2.2000 and the case was remanded. After the remand, the learned trial Court dismissed the suit vide judgment and decree dated 30.9.2000 on the basis of arbitration clause contained in the agreement executed between the parties. The appellant being aggrieved has filed the present appeal.
Learned counsel for the appellant submits that the appellant filed written statement before the trial Court in the shape of report of facts and parawise comments/departmental reply in which the respondent had not taken objection qua staying of proceedings before the trial Court on the basis of provisions of Section 34 of the Arbitration Act, 1940. The respondent filed application for amendment of the written statement before the trial Court under Order VI Rule 17 of C.P.C. which was dismissed vide order dated 11.1.1999. The appellant also filed an application under Rule 6 of Order XII of C.P.C. whereby the suit of the appellant was decreed vide judgment and decree dated 11.1.1999. He further submits that the judgment dated 28.2.2000 was consent decree and is binding upon the parties. Order dated 11.1.1999 to the extent of dismissing application for amended written statement was not set-aside by the D.B. of this Court, therefore, report and parawise comments/written statement filed by the respondent be considered as written statement. He further submits that the trial Court has allowed the respondent to file amended written statement. He further submits that the learned trial Court erred in law by dismissing the suit of the appellant which power did not vest with the trial Court in view of the provisions of Section 34 of the Arbitration Act, 1940.
The learned Law Officer states that the case was remanded to the trial Court vide judgment dated 28.2.2000 with the direction to decide the case afresh on merits. The learned trial Court in the first instance decided two applications, one filed by the appellant under Order XII Rule 6 C.P.C. and the other filed by the respondent for amendment of written statement under Order VI Rule 17 of the C.P.C. which were decided by one consolidated order dated 11.1.1999, therefore, it is to be presumed that this Court has set-aside the order qua the application for amendment in the written statement. He further submits that it is duty and obligation of the trial Court to stay the proceedings in the suit under the provisions of Section 34 of the Arbitration Act, 1940. He further submits that application of the respondent for amendment of the written statement under Order VI Rule 17 be deemed to be pending adjudication and the respondent has also filed amended written statement alongwith the application, therefore, the trial Court was justified to dismiss the suit of the appellant in the presence of Arbitration clause in the contract/agreement which was executed by the parties of their free will.
We have given our anxious consideration to the contention of the learned counsel for the parties.
It is better and appropriate to reproduce Section 34 of the Arbitration Act, 1940 to resolve the controversy between the parties:
"34. Power to stay legal proceedings where there is an arbitration agreement. Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before which the proceedings are pending to stay the proceedings; and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time, when the proceedings were commenced, and still remains, ready and waiting to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings."
Mere reading of the aforesaid provision of law shows that the impugned judgment and decree is not sustainable in the eye of law as the trial Court has no jurisdiction whatsoever to dismiss suit of the appellant in view of the presence of the Arbitration clause contained in the agreement executed between the parties. The question of law involved in this case has been considered and decided by the Hon'ble Supreme Court according to which the impugned judgment is not sustainable in the eye of law in Pakistan International Air Lines Corporation vs. Pak Saaf Dry Cleaners (PLD 1981 S.C. 553).
Under Section 34 of the Arbitration Act the defendant before filing his written statement or taking any other step in the proceedings can apply to the Court to stay the proceedings so as the matter may be referred to or considered by the Arbitrators under the agreement to which he and the plaintiff are parties. The plaintiff already having invoked a jurisdiction other than the Arbitrator by way of initiating proceedings against the defendant has by his choice waived his right to Arbitration. Similarly if the defendant before joining the proceedings before the Court/authority does not make such an application under Section 34 he also waives his right of Arbitration. It is thus obvious that the plaintiff by initiating a proceedings and a respondent/defendant by not applying under Section 34 of the Arbitration Act had waived their right to Arbitration. Meaning thereby that both the parties to the arbitration agreement by their conduct had agreed not to go to Arbitration. Thus the proceedings in the matter will continue in accordance with law. However if any such application is made then the Court/authority after considering the same, at the most can stay the proceedings till the Arbitration is finalized. However mere existence of arbitration agreement does not authorize a Court/authority to dismiss such proceedings outright.
It is pertinent to mention here that in the earlier round of litigation the order dated 11.1.1999 passed u/O. XII Rule 6 of CPC was only set aside. It is better and appropriate to reproduce para 4 of the judgment of this Court dated 28.2.2002.
"4. The learned counsel for the appellants accepts the offer of the learned counsel for the respondent and submits that he will be satisfied if the judgment and decree based on Rule 6 of Order XII of the Code of Civil Procedure is set aside and the suit is remanded and will not press the appeal for any other relief. This appeal is accordingly disposed of with the consent of the learned counsel for the parties. The impugned judgment to the extent it decreed the suit of the respondent under Rule 6 of Order XII of the Code of Civil Procedure is set aside and the suit is remanded to the learned trial Court for its decision afresh in accordance with law. The learned trial Court will dispose of the suit by 30.9.2005."
It is pertinent to mention here that the judgment of this Court is not agitated by any of the parties before any higher forum and judgment of this Court is binding upon the parties on the principle of resjudicata as law laid down in Pir Bakhsh versus The Chairman Allotment Committee and others (PLD 1987 SC 145). The operative part of the judgment of this Court clearly shows that the judgment & decree to the extent of order passed against the respondent in the earlier round of litigation on 11.1.1999 under Order XII Rule 6 of CPC only was set aside and the order passed on the application under Order VI Rule 17 CPC was not set aside. In this view of the matter the contention of the learned law officer has no force.
It is pertinent to mention here that representative of the respondents have filed report of facts and parawise comments/departmental reply before the learned trial Court directly and not through any Advocate or Law Officer, which is not in consonance with the direction of the learned trial Court. The learned trial Court has directed the respondents to file written statement. The application under Order VI of Rule 17 CPC was dismissed alongwith the application of appellant under Rule 6 Order XII vide order dated 11.1.1999, which was challenged by the respondents before this Court in RFA No. 184/1999, which was allowed vide judgment dated 28.2.2000, as mentioned above, the same was set-aside to the extent of judgment & decree dated 11.1.1999 passed under Rule 6 of Order XII C.P.C. whereas, the order to the extent of Order VII of Rule 17 for amendment of the written statement was not set-aside. Anyhow, the respondents have not made any efforts through legal means/legal process for bringing on record amended written statement. In case all the facts be put in juxta position, then respondents are not pursuing the matter in accordance with law diligently. Keeping in view this fact let a copy of this judgment be sent to the Secretary concerned, who is directed to constitute a committee to probe into the matter that who is responsible officer/official to file report and parawise comments instead of written statement directly before the learned trial Court. In case the Committee finds any person responsible for that then he is directed to proceed against him under Efficiency and Disciplinary Rules and also in the light of the findings of the Committee criminal proceedings be initiated against the responsible officer. Respondents may take necessary steps to defend the case properly before all the forums in accordance with law.
(A.A.) Order accordingly.
PLJ 2006 Lahore 631
Present: Muhammad Sayeed Akhtar, J.
SHUJA-UL-HAQ--Petitioner
versus
MUHAMMAD SHARIF and 2 others--Respondents
W.P. No. 2990 of 1999, heard on 26.9.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O. XX, R. 14(1)(a)--Constitution of Pakistan (1973), Art. 199--Suit for pre-emption decreed on basis of compromise of parties on payment of specified price which was to be deposited before 23.12.1985--Pre-emption amount was got deposited on 23.12.1985--No date for deposit of pre-emption amount had been fixed by defendant in his consent statement--Trial Court had fixed date for payment of decretal amount which was clearly against mandate of O. XX, R. 14(1) (a) C.P.C.--Executing Court had rightly accepted execution application--Order in appeal passed by Appellate Court setting aside order of Executing Court was erroneous and the same was set aside while that of Executing Court allowing execution application was maintained. [P. 633] A
PLD 1991 SC 782; 1979 SCMR 593; 1974 SCMR 19 and 1985 SCMR 1719, ref.
Mr. Shamim Iqbal Butt, Advocate for Petitioner.
Mr. Taki Ahmad Khan, Advocate for Respondents.
Date of hearing : 26.9.2005.
Judgment
The facts giving rise to this petition are that Muhammad Sharif, Defendant/Respondent No. 1 purchased land measuring 10 marlas vide registered sale-deed dated 16.8.1984 from the plaintiff/petitioner. The plaintiff/petitioner, (now the decree-holder) filed a suit on 23.7.1985 pre-empting the sale. The Defendant/Respondent No. 1 (vendee) made an offer that if the pre-emptor paid a sum of Rs. 44,400/- to him, he would have no objection if the suit is decreed against him. The offer was accepted by the plaintiff/petitioner and suit was decreed on 3.11.1985 with the direction to deposit the remaining purchase price before 23.12.1985. On 22.12.1985, the petitioner moved for issuance of challan to deposit the decretal amount. The said challan was issued at 11.00 a.m. the respondent was not able to deposit the decretal amount on 22.12.1985 owing to closure of the Bank and the same was deposited on 23.12.1985. The petitioner/decree-holder moved an application on 13.1.1986 under Sections 151, 152 & 153 C.P.C. for correction of the judgment stating that under Order 20 Rule 14 CPC, no order could be passed for depositing the decretal amount before 23-12-1985, it should have been "on or before" 23.12.1985. The said application was dismissed by the learned trial Court on 23.2.1986. This order was assailed in revision petition before the Revisional Court. The Ld. Addl. District Judge vide order dated 17.7.1986 allowed the revision petition with the direction to the learned trial Court to amend the decree accordingly. The revisional order dated 17.7.1986 was challenged in W.P. No. 4570-1986, which was allowed on 4.2.1998 with the consent of the parties and case was remanded to the learned trial Court for decision afresh in the light of rule enunciated in "Fateh Khan. Vs. Bozmir" (PLD 1991 S.C. 782). The respondents being aggrieved filed CPLA No. 563-1998 before the Honourable Supreme Court, which was disposed of with the following observations:--
"We are also of the view that the question of applicability or otherwise of the rule laid down in Fateh Khan's case (supra) should have been left to be decided by the Executing Court".
The petitioner/decree-holder filed execution petition before the learned Executing Court on 25.2.1998, which was accepted on 29.10.1998. The respondents being aggrieved filed revision petition before the Revisional Court, which was allowed vide order dated 17.1.1999 and order of the learned Executing Court was set-aside with the direction to proceed with execution petition in the light of observation made in the order.
The learned counsel for the petitioner contended that the learned Revisional Court has mis-interested the judgment of Honourable Supreme Court in "Fateh Khan's case". He further urged that execution petition filed by the petitioner, was not barred by time. This Court vide order dated 15.10.1986 had suspended the operation of revisional order dated 17.7.1986.
Conversely, the learned counsel for the respondents submitted that Court below has rightly allowed the revision petition. The rule laid down in "Fateh Khan's case" supra was not applicable to the instant case as the same did not apply to the "past and closed transaction". He urged that execution petition was filed on 25.2.1998 and the same was barred by time. He further argued that the Court has no jurisdiction to extend the time in a consent decree. In support of his contention, he relied upon the following judgments:--
"Saat Malook vs. Rozi Khan" (1979 SCMR 593).
"Syed Ahmad Shah, etc. Vs. Muhammad Yar, etc." (1974 SCMR 191).
"Mushtaq and others vs. Rabian Bibi and others" (1985 SCMR 1719).
Arguments heard and record perused.
The learned Addl. District Judge, Sialkot erroneously came to the conclusion that rule in "Fateh Khan's case" was inapplicable to the instant case. The Honourable Supreme Court laid down following rule:--
"In our view, the Court has no option under Order XX Rule 14(1)(a) to direct the pre-emptor but to deposit the amount "on or before" a day specified by the Court. A direction for payment of money in a pre-emption suit under Order XX, Rule 14(1)(a) is mandatory and the order should specify a date as contemplated in this rule. In case of failure of the Court, a successful pre-emptor cannot be penalized as no party has to suffer on account of an act of the Court."
It is thus clear that the Court could not be allowed to exercise the discretion in either of the two ways. The August Court, however, observed that this judgment will have no effect on the "past and closed transaction". In my view by filing an application under Sections 151, 152 & 153 CPC for correcting the decree, the matter became subjudice. The revisional order dated 17.7.1986 passed in favour of the petitioner was suspended by this Court vide order dated 15.10.1986 passed in W.P. No. 4570-1986. In the circumstances, there was no occasion to file execution petition as such question of limitation would not arise. In the earlier W.P. No. 4570-1986 this Court has made following observations:--
"The learned Executing Court, if so moved, will determine this question in the light of points raised by the parties and in the light of rule laid down in "Fateh Khan's case (PLD 1991 SC 782) and according to law."
In view of above discussion, this writ petition is allowed and impugned order dated 17.1.1999 is declared without lawful authority and of no legal effect, the order passed by the learned Executing Court dated 29.10.1998 is upheld.
(A.A.) Petition accepted.
PLJ 2006 Lahore 634
Present: Muhammad Akhtar Shabbir, J.
BARKAT ALI--Petitioner
versus
AHMAD DIN and another--Respondents
Writ Petition No. 18630 of 2005, decided on 17.1.2006.
(i) Constitution of Pakistan, 1973--
----Art. 199--Constitutional jurisdiction of High Court--Scope--High Court cannot sit as Court of appeal against judgment passed by Special Tribunal. [P. 637] E
(ii) Punjab Tenancy Act, 1887 (XVI of 1887)--
----S. 77--Constitution of Pakistan, 1973--Art. 199--Jurisdiction--Maintainability--Exercised jurisdiction of Revenue Officer--Revenue Officer was exercised jurisdiction with respect to any suit as described with respect to an appeal or other proceeding arising out of such suit--Held: Revenue officer has exclusive jurisdiction to take cognizance or entertain suits provided in sub-section (3). [P. 636] A
(iii) Punjab Tenancy Act, 1887 (XVI of 1887)--
----S. 77--Constitution of Pakistan, 1973--Art. 199--Maintainability--Controversy--Claim of share of profit--Plaintiff sought recovery of share of profits from defending being co-sharer--Revenue Court decreed in favour of plaintiff--Judgment and decree passed by Revenue Court was set aside by first appellate Court--Revenue Board restored decree through revision petitions--Plea raised by defendant was that there was no relationship of landlord and tenant between the parties as he had been paying share to another co-sharer--Validity--Plaintiff purchased two khasra numbers from two other person, which were in their possession of vendors had continued and plaintiff was legally owner of land--Revenue Court on basis of evidence rightly found that relationship of land lord and tenant existed between parties and decreed which was affirmed by MBR--Appellate Court had not based their finding on basis of documentary evidence--High Court declined to interfere with order passed by Revenue Board--Petition was dismissed. [Pp. 636 & 637] C, D & F
(iv) Punjab Tenancy Act, 1887 (XVI of 1887)--
----S. 14--Recovery of profits--Right of co-sharer--Scope of--Co-sharer can claim his share of profits from other co-sharer and tiller of land in joint holding. [P. 636] B
Mr. Muhammad Azam Bhaur, Advocate for Petitioner.
Date of hearing : 17.1.2006.
Order
This order will dispose of Writ Petitions Nos. 18630 of 2005 and 18631 of 2005 as common question of law and facts are involved in both these writ petitions.
The facts giving rise to the filing of the present writ petitions are to the effect that Ahmad Din Respondent No. 1 in both the writ petitions had filed separate suits for recovery of produce of `Hisa Batai' against Barkat Ali present petitioner amounting to Rs. 4257/- and Rs. 2928/- for Rabi and Kharif 1997-1998 before the Revenue Court/Assistant Collector Ist Grade Narowal with regard to Khasra Nos. 933/2 and 954/1 who after recording the evidence of the parties decreed the suits in favour of Respondent No. 1 vide his judgment and decree dated 31.5.2000.
Feeling aggrieved the petitioner preferred an appeal against these judgments and decrees before the A.C/Collector, Narowal who vide, his judgment and decree dated 22.12.2000 accepted the appeal, dismissed the suit of Respondent No. 1. The appeal of Respondent No. 1 had also been dismissed by the Executive District Officer (Revenue), Narowal on 21.1.2002. Feeling aggrieved, this Respondent No. 1 preferred separate revision petitions before the learned Member (Judicial-I), Board of Revenue, Punjab Lahore and the M.B.R. vide his order dated 20.4.2004 accepted the revision petition setting aside the orders of Collector and the E.D.O. (Revenue) dated 21.1.2002, the order of the M.B.R. was assailed by the present petitioner through a review petition which was dismissed by the Member (Judicial-I) Board of Revenue vide order dated 12.9.2005. The said order has been assailed by the petitioner through the instant writ petitions.
The learned counsel for the petitioner contended that Barkat Ali petitioner being a co-sharer in the joint khata was not liable to pay the `Hisa Batai' to Respondent No. 1 and suit was not competent before the Revenue Court. It is further contended that a co-sharer cannot claim the share of produce against another co-sharer.
I have heard the arguments of the learned counsel for the petitioner and perused the record. It is admitted position that Ahmad Din Respondent No. 1 had purchased specific khasra numbers from Muhammad Amin etc. who were co-sharer' in thejoint khata' and having a long possession over the said khasra numbers.
After the purchase of the land the Respondent No. 1 had stepped into the shoes of the first owners who were landlord and the petitioner was a tenant at will under them. After recording, appreciating the evidence pro and contra, the
Revenue Officer/A.C-I, had observed that the relationship of landlord and tenant exist between the parties. The Member Board of Revenue affirmed the view of the Revenue Officer vide order dated 20.4.2004 and 12.9.2005.
Section 77 of the Punjab Tenancy Act envisaged that when a Revenue Officer is exercising jurisdiction with respect to any such suit as is described is sub-section (3) or with respect to an appeal or other proceeding arising out of any such suit, he shall be called a Revenue Court and the Revenue Court has exclusive jurisdiction to take cognizance or entertain suits provided in sub-section (3) First Group, Second Group and Third Group. Clause (n) of Third Group of sub-section (3) envisages that suits by a landlord for arrears of rent or the money equivalent of rent, or for sums recoverable under Section 14 of the Punjab Tenancy Act. Clause (o) further contemplated that suits by a land-owner to recover moneys claimed as due for the enjoyment of rights in or over land or in water including rights of irrigation, rights over fisheries, rights of pasturage and forest rights. Clause (k) of the Second Group empowered the Revenue Court entertain suits by a co-sharer in an estate or holding for a share of the profits thereof or for a settlement of accounts.
It means that a co-sharer can claim for his share of the profits from other co-sharer and these real tiller of the land in a joint holding, certainly if at all Barkat Ali petitioner is a co-sharer of the land in the joint khata but he is under obligation to pay profits of the crops to the other co-sharer as per law or terms and conditions of the tenancy access to his own ownership rights. It is admitted position that Barkat Ali was tenant at will under Muhammad Amin etc. to the extent of their share and Respondent No. 1 who stepped into their shoes would also enjoy the same status of the landlord and the tenant (petitioner).
The stand taken by petitioner before the Revenue Court that he has been paying the `Hisa Batai' to one Mst. Ramzan Bibi a co-sharer in the khata which is in his possession over and above his owner share. The Respondent No. 1 purchased two khasra numbers from Muhammad Amin etc. which were in their possession, thus this possession would have been continued and the Respondent No. 1 Ahmad Din under the law was legally owner of that portion of the land under plough of the petitioner. The learned Tehsildar on the basis of the evidence rightly held that the relationship of land-lord and tenant exists between the parties and thus, decreed the plaintiff's suit which was affirmed by the Member Board of Revenue. The Collector or the E.D.O. (R) have not based their finding on the basis of any documentary evidence. Rather they passed the orders on conjectures and surmises.
In this context reference can be made to the case of Faqir Muhammad versus Bashir Ahmad and 2 others (1990 A.L.D. 1975). The other aspect of the case is that if the petitioner claimed to be the co-sharer even then his suit could have been treated as suit for rendition of accounts between the co-sharers under Section 77 (3)(a) of the Punjab Tenancy Act. The learned counsel for the petitioner has not pointed out any illegality or jurisdictional defect in the impugned orders passed by Tehsildar as well as Respondent No. 2 or that the impugned order have been passed without lawful authority. It is settled proposition of law that the High Court would not sit as Court of appeal qua the judgment/order passed by the Special Tribunal. Reference in this context can be made to the cases of Muhammad Husain Munir and others Versus Sikandar and others (PLD 1974 SC 139) and Sub. Muhammad Asghar Versus Mst. Safia Begum and another (P.L.D. 1976 S.C. 435).
The matter pertains to the question of facts determined by the Revenue Court as well as the Member Board of Revenue after evaluating the evidence of the parties and in such like cases the High Court would be reluctant to interfere with their findings as laid down in the cases of Benedict F.D. Souza versus Karachi Building Control Authority and three others (1989 S.C.M.R. 918), Federation of Pakistan and two others Versus Major (Rtd.) Muhammad Sabir Khan (P.L.D. 1991 S.C. 476) and Muhammad Younas Khan Versus Government of N.W.F.P. through Secretary and others (1993 S.C.M.R. 618).
For the foregoing reasons these writ petitions being devoid of any force are dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2006 Lahore 637
Present: Mian Saqib Nisar, J.
Haji MUHAMMAD IDREES and others--Petitioners
versus
INAYAT and others--Respondents
Civil Revision No. 2072 of 2003, heard on 23.2.2996.
Muslim Personal Law (Shariat) Application Act, 1962--
----S. 2 A readwith Punjab Amendment Ordinance, 1983--Declaratory suit filed by reversioners was decreed--During pendency of appeal Punjab Amendment Ordinance, 1983 was promulgated--Effect of--Held: S. 2A simply ordained under the custom which were contrary to Shariat shall abate forthwith and if any decree existed in violation thereof, would be rendered void and inexecutable--However the proviso to S. 2A created an exception to the main provision but could not over ride the section and was purely based upon the rule of finality and conclusiveness--If any transaction was past and closed, the condition precedent was that chapter in relation to the subject must be conclusively shut, meaning thereby that the decree if any passed must have attained finality either not challenged or remained so throughout the appellate or revisional forums etc--If however any appeal was pending against a judgment and decree, particularly first appeal which was an important right of a litigating party and was the continuation of the suit/lis, the entire matter was rendered reopen and during its pendency no decree could be held to the final, conferring thereto the sanctity of the doctrine of past and closed transaction--Judgment and decree of appellate Court set aside and judgment & decree of Civil Court was held to be null and void as the original suit was abated. [Pp. 640 & 642] A, B & C
PLD 1985 SC 407; 2005 PTD 2462 & 1995 SCMR 1830, ref.
Khawaja Saeed-uz-Zafar, Advocate for Petitioners.
Mr. S.M. Masud & Mr. Muhammad Ashfaq Mughal, Advocates for Respondents.
Date of hearing: 23.2.2006.
Judgment
Allah Din having acquired the suit property measuring 18 Kanals and 14 Marlas situated in Mauze Khoram Tehsil and District Kasur, under the custom, had sold it to the predecessor-in-interest of the petitioners/the vendees; the respondents, who are the sons of Allah Din, on 14.11.1970, filed a suit under the customary law claiming such sale to be against their reversionary rights; the petitioner contested the matter and the learned Civil Judge vide judgment and decree dated 29.5.1980, decreed the suit; against the above, the petitioners preferred an appeal, which was pending, when on 1.8.1983, the provisions of Section 2-A of the Muslim Personal Law (Shariat) Application Act. The Punjab (Amendment) Ordinance, 1983, were promulgated; in the light whereof, the learned ADJ accepted the appeal, holding that the judgment and decree dated 29.5.1980, has become inexecutable. Against this, the petitioners preferred a C.R. No. 1157 of 1984, which came up for hearing before this Court on 8.5.2002 and was decided in the following terms:
"I have heard learned counsel for the parties and find that the question whether or not, the possession has been taken over by the petitioners in execution of the decree, dated 29.5.1980, is a question of fact, on which, parties were entitled to lead evidence, before the appeal of the respondent, could be accepted in view of the promulgation of the Act. But this has not been done by the Court of appeal. Resultantly, this revision petition is allowed, the learned appellate Court is directed to frame requisite issue and after enabling the parties to produce evidence, to prove/disprove, whether or not, the possession was delivered to the petitioners under the decree dated 29.5.1980 to decide the matter afresh in accordance with law, considering the effect thereof.
In the light of above, by setting aside the impugned judgment of the Court of appeal, this petition is allowed."
In the post remand proceedings, the learned ADJ, framed an additional issue i.e. "whether the physical possession of the suit property was actually delivered to the plaintiffs in pursuance of judgment and decree dated 29.5.1980 and if so, what is its effect? And after recording the evidence led by the parties, on the said issue; and while upholding the judgment and decree of the learned trial Court, on merits and also by giving finding about the possession on the additional issue in favour of the respondents, it has concluded that "With due regard the judgment referred by learned counsel for the appellants/defendants is not relevant according to the peculiar circumstances of the instant case because appeal is being dismissed and impugned judgment and decree is being upheld and it is also established that possession was delivered to the respondents/plaintiffs before the amendment was made in 1983. As such respondents/plaintiffs are protected by proviso of Section 2-A of Muslim Personal Law (Shariat) Application Act, 1962." Accordingly, the appeal has been dismissed vide judgment and decree dated 1.11. 2003. Hence this revision.
Learned counsel for the petitioners has argued that the proviso to Section 2-A would only come into play, where the transaction is past and closed, and under which, the possession of the suit land had been delivered to the decree holder in execution of the decree. It is stated that where an appeal, which is the continuation of the suit, was pending against the original decree, and in the meanwhile, Section 2-A came into force, the suit and the decree were clearly hit by the said law, which are not protected by the proviso thereto. Because, the matter was not a past and closed transaction; thus irrespective that the possession of the land had been taken over by the decree holder in an execution of that decree, the decree on account of Section 2-A was rendered void and inexecutable and the suit stood abated; therefore, the appeal should have been accepted, declaring the decree dated 29.5.1980, as nullity, etc. In this regard, he has relied upon the case reported as Ghulam Muhammad vs. Ghulam Qadir etc. (1995 SCMR 1830).
Mr. S. M. Masud, learned counsel for the respondents by replying upon the cases reported as Sardar through Legal Heirs vs. Ghulam Haider (1991 CLC Note 252) and Abdul Ghafoor and others vs. Muhammad Shafi and others (PLD 1985 SC 407 @ 424 (m) (n), has argued that where the possession of the land under a decree passed according to the custom, had already been delivered to the plaintiff/decree holder, when Section 2-A came into force, the transaction shall necessarily be covered by the rule of past and closed, so as to attract the proviso to Section 2-A of the Act ibid.
Heard. Immediately after the partition of the sub-continent and with the creation of the Pakistan, a State emerging in the name of Islam, a conscious effort was made by the legislature, to annual the custom in the matters of inheritance, so that the succession, should be governed by the rules of Shariah. The legislative endeavours and the historical background in this behalf has been very enormously given by the Honourable Supreme Court in the case reported as PLD 1985 SC 407 supra. Therefore, I do not find expedient to undertake the same exercise, but shall like to emphasis that the enforcement of Section 2-A is a very substantial and deliberate exertion of the law maker in same direction and thus has to be construed and interpreted in that perspective.
As mentioned earlier, Section 2-A was enforced on 1st August, 1983 and sub-clause (b) in unequivocal and categorical terms postulates that any judgment and decree, or the order affirming the right of any reversioner under Custom to call in question such an alienation or delivery of possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to Muslim Personal Law (Shariat) Act. According to sub-section (c) all suits and other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree, shall abate forthwith. From the clear wording of the section, there does not seem to be any doubt and ambiguity about the scope of interpretation and the application of this section, which when considered in isolation while excluding the proviso, simply ordains that all the matters pending or decided under the custom, which are contrary to the Shariah, shall abate forthwith and if any decree in violation thereof exists, it shall be rendered void and inexecutable, having no effect or the consequence. And there seems no difficulty in comprehending the section and the purview of its application. However, the proviso to Section 2-A, which under the rules of interpretation, only creates an exception to the main provision but cannot override the section, to which it forms part and is purely based upon the rule of finality and conclusiveness, in the judicial dispensation attached to a judgment and decree, has only secured and protected those transactions, which are firstly past and closed, a principle and phraseology well understood in the legal pralance and secondly, in addition thereto, the possession under such transactions has also been delivered to the decree holders. Thus in order to attract the proviso, the two conditions mentioned above must co-exist and are duly satisfied. But if one of those is missing, the proviso shall not apply. However, in order to adjudge, if any transaction is past and closed, the condition precedent is that the chapter in relation to the subject, to which the transaction pertains, must be conclusively shut, meaning thereby that the decree, if any passed, must have attained the finality, either it is not challenged by the aggrieved party or if so done by crossing the forums of appeals, or revisions, etc. in the hierarchy, it is passed. If however, any appeal is pending against a judgment and decree, particularly, the first appeal, which is an important right of a litigating party and is the continuation of the suit/lis, the entire matter is rendered reopen and during the pendency of the appeal, no decree can be held to be final, conferring thereto the sanctity of the doctrine of past and closed transaction. In support of the above, reliance can be placed upon the judgment of the Division Bench of the Karachi High Court, reported as Messrs Lever Brothers, Pakistan Ltd. vs. Customs, Sales Tax and Central Excise Appellate Tribunal through Registrar and another (2005 PTD 2462).
In view of the above, obviously, till the petitioners' pending appeal was awaiting decision, the judgment and decree passed in favour of the reversioners/respondents was never final or conclusive and was subject to the verdict of the Court of appeal. But before any decision could be made, the provision of Section 2-A was enforced and thus not only the suit of the respondents stood abated on account of the sub-clause (c) of the section, rather the decree passed in their favour under the dictate of sub-clause (b) became, void, nullity in the eyes of law and was rendered inexecutable, therefore, irrespective whether the possession of the property, had been taken over by the respondents during the pendency of the appeal, may be on account of the reason that no injunction was granted by the Court of appeal or it was during the period, when the appeal yet not filed, would not bring the case of the respondents within the mischief of the proviso, which as mentioned earlier, comprises of two parts and both the conditions provided therein are to squarely satisfied and co-existent.
"This provision declared the judgment and decrees already obtained by reversioners as void and of no legal effect. Confronted with this legal position, learned counsel sought to rely upon the proviso to section 2-A, which excluded the application of the substantive provisions of the said section to the transactions past and closed where possession of the land had already been delivered under the decrees obtained by the reversioners under custom and contended that the petitioners having obtained the possession of the suit land under the decree passed by the trial Court, long before Section 2-A was inserted in the West Pakistan Muslim Personal Law (Shariat) Act by amending Ordinance XIII of 1983, the provisions contained therein were not attracted to his case. In the submission of the learned counsel, delivery of possession of the suit land to the petitioner under the decree of the Court rendered the transaction past and closed within the purview of the proviso aforementioned and consequently Section 2-A was not applicable to his case. We are not persuaded to accept this contention. Possession of the suit land is no doubt shown to have been delivered to the petitioner in execution of the trial Court's decree but that decree was not final. It was brought under challenge in an appeal before the District Judge and failing there, the respondents preferred second appeal in the High Court. Thus notwithstanding the execution of the trial Court's decree and delivery of possession to the petitioner, the dispute remained alive throughout until the High Court allowed the respondents' appeal and setting aside the judgments and decrees of the Courts below dismissed the petitioner's suit. Needless to observe that the delivery of possession in execution of the trial Court's decree was subject to the result of appeal before the District Judge and further appeal in the High Court and of Course C.P.C. provided for restitution on acceptance of appeal. In the circumstances, mere delivery of possession to the petitioner did not make it a case of past and closed transaction with the result that the petitioner cannot take the benefit of proviso relied upon by his learned counsel."
In my view, the proposition has been clinched and any law to the contrary expressed in the judgment reported as 1991 CLC Note 252, has not legal effect.
In the light of what ever has been stated above, I am constrained to hold that infact the Court of appeal should have rendered and declared the judgment and decree of the learned trial Court as being void, inexecutable and the suit having abated with the consequences to follow, therefore, the revision petition is accepted; the judgment and decree of the Court of appeal is set aside and it is held that the judgment and decree dated 29.5.1980 passed by the learned trial Court, in favour of the respondents is void and the respondents' suit stands abated. No order as to the costs.
(J.R.) Revision accepted.
PLJ 2006 Lahore 642
Present: Mian Saqib Nisar, J.
MUHAMMAD ILYAS--Petitioner
versus
LEARNED ADDL. DISTRICT JUDGE, LAHORE and 2 others--Respondents
Writ Petition No. 11211 of 2005, heard on 6.2.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Punjab Pre-emption Act, (IX of 1991), Ss. 30 & 31--Rejection of plaint, due to time barred--Held: S. 30 was very much clear that maximum period of limitation provided for the cases falling under clause a & b was 4 months--Plaint did not contain any good of exemption on the basis of S. 18 of Limitation Act rather no specification as to when the cause of action had been arisen to the plaintiff was set out-No case of exclusion of time from 4 months period was even claimed in the plaint--Moreover it was not pleaded that notice u/S. 31(2) had not been issued by the Registering Authority--On the basis of admitted facts no case of mixed question of law and facts as the cause of action was made out--Plaint was legally liable to be rejected--Impugned orders were set aside by remanding the matter for decision afresh in accordance with law. [Pp. 645, 646 & 647] A, C, D & E
(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 30--Limitation Act, (IX of 1908), Ss. 29, 4, 9, to 18 or 22--Question of--Limitation period of 4 months could be extended--Held: S. 29 clearly enunciates that it applies to the Special or Local laws untill and unless its applicability is expressly excluded--The Act 1991, which is a special law, is silent about the exclusion of S. 29 so plaintiff in pre-emption into can take the benefit of the section--But for the purpose he according to Order VII R, 6 C.P.C. has to show and state in the plaint the grounds of exemption from which the Limitation is claimed, this is mandatory and foundational in nature [1]without which no structure of proof can be raised. [Pp. 645 & 646] B
PLD 2001 SC 499; 2000 SCMR 1305 & 2005 SCMR 1926.
Malik Noor Muhammad Awan, Advocate for Petitioner.
M/s Zaka-ur-Rehman & Muhammad Afzal Awan, Advocates for Respondents.
Date of hearing : 6.2.2006.
Judgment
Writ Petitions Nos. 11211/2005 and 11212/2005, are being decided together as both involve common questions of law and facts.
On 26.6.2003, Respondent No. 3, filed two suits for pre-emption, pre-empting the sales of the suit land made in favour of the petitioner, vide registered sale-deeds dated 10.12.2002, and the mutations to the above effect also sanctioned the same day. It is the case of the respondent in his plaint, that he learnt about the sale on 19.6.2003, made Talb-i-Muwathibat, followed by a notice of Talb-i-Ishhad; the suits, as mentioned earlier, having been filed on 26.6.2003, were obviously beyond the limitation period of four months, as prescribed by Section 30 of the Punjab Pre-emption Act, 1991 (the Act).
The petitioner thus, instead of filing the written statement, moved an application under Order VII Rule 11 C.P.C., seeking the rejection of the plaints being barred by time. The learned Civil Judge, has dismissed the application on 12.10.2004, holding that the question of limitation in these matters, is a mixed question of law and facts, which can only be resolved after the framing of the issues and recording of the evidence; the revisions filed by the petitioner based upon the same reasoning have been dismissed by the learned ADJ on 22.2.2005. Hence these writ petitions.
Learned counsel for the petitioner states, that notwithstanding any reason or the situation, where the transaction of sale has been effected through a registered sale-deed, the maximum period of limitation prescribed under Section 30 of the Act, for pre-empting such sale is four months. If is further submitted, that the provisions of Sections 30 and 31 of the Punjab Pre-emption Act, 1991, are entirely independent, and do not have any conjunctive effect; the application of Clauses (a) and (b) of Section 30 is not subject to the requirement of the affixation of a public notice, of the sale by the concerned officers. The Courts below thus, under Section 3 of the Limitation Act, were bound to reject such time barred plaint. The Courts have failed to exercise their jurisdiction in accordance with law and have drawn a patently illegal conclusion, that the question of limitation is a mixed question of law and facts, and therefore, can only be resolved after the recording of evidence, rather no factual enquiry was/is needed in the matter, as the requisite facts between the parties are admitted.
On the contrary, Mr. Zaka-ur-Rehman, Advocate for Respondent No. 3, states that at the time of the sales the respondent was in possession of the suit property, but the transaction was collusively kept secret by the vendee and the vendor, with the obvious and fraudulent object to prevent the respondent from exercising his right of pre-emption within time; it is only on 19.6.2003, when an attempt was made by the petitioners to dispossess the respondent from the suit properties, that he learnt about the sales and made the Talabs in accordance with law, therefore, the respondent's case squarely falls within the ambit of Section 30(c) and not the Clause (a) (b) of the Act. It is further submitted, that Sections 30 and 31 are interdependent and the period of limitation prescribed by Section 31(a)(b), is subject to the fulfillment of the condition laid down in latter section inasmuch as, the display of the public notice within two weeks of the registration of the sale-deed, is a sine quo non for the purposes of the start of the limitation of four months; besides, the period of limitation shall commence from the date of knowledge and not from the actual registration of the sale-deeds. In support of his case, the learned counsel for the respondent has relied upon Mian Asif Islam vs. Mian Muhammad Asif and others (PLD 2001 SC 499) and Muhammad Khan vs. Muhammad Hussain and 2 others (2002 YLR 1353).
I have heard the learned counsel for the parties and find it expedient to reproduce Section 30 of the Punjab Pre-emption Act, 1991, which reads as follows:--
"30. Limitation.--The period of limitation for a suit to enforce a right of pre-emption under this Act shall be four months from the date.
(a) of the registration of the sale-deed;
(b) of the attestation of the mutation, if the sale is made otherwise than through a registered sale-deed;
(c) on which the vendee takes physical possession of the property if the sale is made otherwise than through a registered sale-deed or a mutation; or
(d) of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph (b) or paragraph (c)."
According to the bare reading of the section, when considered and applied independent of Section 31 of the Act, it is undoubtedly clear, that the Legislature, in the cases falling within the ambit of Clauses (a) and (b), has fixed the maximum period of limitation for filing a pre-emption suit as four months, notwithstanding whether the knowledge of the sale has been attained by the pre-emptor or not; whereas according to clause (c), if the physical possession of the pre-empted property is taken under the sale, and the sale has been made otherwise than a registered deed, or by an attestation of the mutation, the time shall commence from the date of the change of physical possession, while clause (d), is the residuary provision which shall be attracted, if the case does not fall within the ambit of clauses (a) to (c). The provisions of Section 30 thus, when considered in exclusion of any other section of the Act; it is quite clear and vivid, without any fear of doubt that, irrespective of any eventuality or the situation, the maximum period of limitation provided for the cases falling in clauses (a) and (b) is four months.
However despite the above, the question may arise, if by virtue of Section 29 of the Limitation Act, 1908, the prescribed and conclusive period of four months can be extended, when the plaintiff has brought his case within the scope and purview of any of the Sections 4, 9, to 18 or 22 of the law ibid. The answer to the above due to the clear and express language of Section 29 is free from any difficulty. This section which is the part of the general law of the land on the subject of limitation, in unambiguous terms enunciates that it shall apply to the special or local laws, until and unless its applicability is expressly excluded. The Act 1991, which is a special law is silent about the exclusion of Section 29, meaning thereby that the plaintiff in a pre-emption matter can take the benefit of the section if he has made out a case squarely falling within the provisions, mentioned therein. But, before a plaintiff of a pre-emption cause can take benefit of the said section, he according to Order VII Rule 6 C.P.C. has to show and state in the plaint the grounds upon which the exemption from the limitation is claimed; this is mandatory and foundational in nature, without which no structure of proof can be raised. The plaint of the instant case, has been perused and it is found conspicuously lacking in this behalf. Not only that no ground of exemption on the basis of Section 18 of the Limitation Act, which at the most was attracted to the petitioner's case has been set out, rather without specifying as to when the cause of action has arisen in favour of the plaintiff, it is mentioned. Therefore, I am of the considered view, that no case for the exclusion of the time from four months period was either claimed or set out by the petitioner on any count.
Now considering the other question, if Section 30 is regulated or is dependent upon Section 31 of the Pre-emption Act, suffice it to say, that in the judgment reported as Mian Asif Islam vs. Mian Muhammad Asif and others (PLD 2001 SC 499), through the learned Author Judge has taken the view that later section has an impact upon the former section, but the other learned Judge on the Bench, has shown concurrence with the view earlier expressed by the judgment reported as Maulana Nur-ul-Haq vs. Ibrahim Khalil (2000 SCMR 1305), holding:--
"7. The explicit and the mandatory provisions of Section 31 of the Act leave no room for doubt that in case of a sale effected through a registered sale-deed the period of one hundred and twenty days shall be computed from the date of registration of the sale-deed. The contention that if the Registrar fails to issue public notice envisaged by the mandatory provisions of Section 32 of the Act the period of limitation is to be computed from the date of knowledge by the pre-emptor is misconceived. Such a provision is neither contained in Section 31 of the Act nor can be read into it in view of settled law that Court cannot supply "casus omissus".
"It would thus, appear that in the present case, paragraph (a) of Section 30 of the Act was attracted and the date of the registered sale-deed was terminus a quo for computing the limitation period. the other paragraphs of Section 30 (ibid) would have no application. Moreover, the provisions of Section 30 operate proprio vigore and are independent of Section 31 of the Act. The period of limitation for filing the pre-emption suits is governed by Section 30 and not by Section 31 of the Act."
Without prejudice to the above, even otherwise the petitioner has not pleaded in his plaint, that the registration officer failed to comply with the provisions of Section 31(2) of the Act, as no notice within the specified time was given after the registration of the sale-deed. It is for the first time, that in reply to the application under Order VII Rule 11 C.P.C., filed by the petitioner, the plea was raised that the plaintiff learnt about the sale when he was dispossessed from the property and that no notice was issued by the officer concerned, in terms of Section 31. I am afraid, that by the time the stage to propound the plea had passed, because the presumption of regularity is attached to the official acts and nothing had been stated to controvert the said presumption in the plaint.
According to Section 3 of the Limitation Act, it is the duty of the Court to apply the limitation, even if this has not been set out as a defence, but in the instant case, the petitioner very expressly had attacked the respondent's suit on the ground of limitation, therefore, on the basis of the admitted facts of the case and by applying the correct law, mentioned above, the Court should have decided the application under Order VII Rule 11 C.P.C., rather keeping the matter pending on the pretext, that the issue pertained to limitation is a mixed question of law and facts, whereas there was no requirement of any probe into any factual aspect of the matter, as no controversy on the basis of the admitted facts was involved. The impugned orders, therefore, cannot be sustained, which are hereby set-aside; the matter is remanded to the learned trial Court, to decide afresh the application of the petitioner, under Order VII Rule 11 C.P.C., in accordance with law. Accordingly, these writ petitions are allowed.
(J.R.) Petition allowed.
PLJ 2006 Lahore 647
Present: Syed Hamid Ali Shah, J.
MUHAMMAD ASHRAF--Petitioner
versus
DISTRICT COORDINATION OFFICER, LAHORE and 2 others--Respondents
Writ Petition No. 4557 of 2005, decided on 26.1.2006.
Destitute and Neglected Children Ordinance, 2004--
----S. 28--Custody of destitute & neglected child--Held: Custody of such child is to be entrusted to a suitable person who is capable and willing to look after the child--Such person is responsible for his care, education & well being--Respondents had been looking after the child for the last 10 months, their application was earlier in time and there was no other claimant at the time child was handed over to them--They had developed emotional attachment with the child--They were ordered to keep the custody subject to depositing Rs. 5 lacs in his name and furnishing a surety bond to the effect that the child should be brought up & educated properly and should not be forced to do any job or work for respondent until attaining majority. [P. 650] A, B & C
Mr. Falak Sher, Advocate for Petitioner.
Mr. Shahid Azim, Advocate for Respondent No. 1.
Mr. Naeem Sadiq, Advocate for Respondents Nos. 2 & 3.
Date of hearing : 19.1.2006.
Judgment
The newly born (male) child was found within the vicinity of the shrine of Hazrat Data Gunj Bakhsh and was taken into custody by the Religious Affairs Committee of Data Darbar. The petitioner claims the custody of the abandoned child, on the plea that the child was handed over to him by Mr. Mukhtar, Manager of Data Darbar and the petitioner and his wife on his instructions, moved an application to the Chairman Religious Affairs Committee for the entrustment of the child to them. The child was statedly sick and was admitted in Mayo Hospital on 22.2.2005 where he remained under treatment for a few days. The petitioner in response to the notice dated 5.3.2005 appeared before Zonal Administrator for the custody of the abandoned child. The child was removed from the custody of the petitioner on the night between 8/9th of March, 2005 by the officials of the Auqaf Department and the local police. The child was handed over to Respondents Nos. 2 and 3 after his recovery from the petitioner.
The respondents in their reply controverted the averments made in the petition. It was denied that the custody of the child was even handed over to the petitioner. The child was handed over temporarily to Mst. Irshad Bibi, an employee of Data Darbar Industrial School, he remained with her until he was entrusted to Respondents Nos. 2 & 3 by Respondent No. 1 through order dated 8.3.2005. The petitioner through the instant petition has challenged the order of Respondent No. 1 dated 8.3.2005, wherein the unclaimed child was entrusted to the custody of Respondents Nos. 2 & 3.
Learned counsel for the petitioner has contended that the unclaimed child was entrusted to the petitioner by the Manager of Data Darbar. He has looked after the child, got him admitted in the hospital. The petitioner has the prior right to keep the custody of the child. Respondent No. 1 has illegally handed over the custody of the child to Respondents Nos. 2 & 3. The child was illegally snatched and is liable to be returned to the petitioner. The petitioner has placed on record some documents to show that the petitioner is proprietor of Badshah Packages, a tax payer and is registered with the Collectorate of Sales Tax. The petitioner has also filed the documents of Mst. Rehana Kausar and Mst. Samia Naseer ud Din to show that the relative of the petitioner are educated and can look after the child properly.
On the other hand, learned counsel for Respondents Nos. 2 & 3 has submitted that the petitioner as well as Respondents Nos. 2 & 3 moved applications before Respondent No. 1 for entrustment of the custody of an abandoned child. The respondents submitted their application on 22.10.2004 while the petitioner submitted his application on 17.2.2005. The respondents' application is of earlier date and as such has the prior right as against the petitioner. He has further submitted that the petitioner has incorrectly stated that the child remained in his custody. Necessary information regarding handing over the child and his medical treatment by the petitioner was missing in the application. He submitted that it can be ascertained from perusal of Para 4 of the writ petition that the question of entrustment of custody was yet to be made by the concerned officials. The medical record do not show that in pertains to the child. There is no proof that the child was admitted in hospital and remained there under treatment as alleged by the petitioner. He has lastly contended that the petitioner in response to the notice has not appeared before the D.C.O., Lahore. He has placed on record the evidence regarding income of Respondent No. 2 including the income tax receipts. The documents of the properties were submitted to show that he is in a position to look after the child. Respondent No. 2 is also willing to deposit a sum of Rs. 500,000/- in the name of the child to secure his future.
I have heard the learned counsel for the parties and perused the material available on the record.
The child is an abandoned child who was found unclaimed by the Religious Affairs Committee of Data Darbar. The child is a "destitute and neglected child" within the contemplation of Section 3(k)(vi)(vii). Section 3 (k) (vi)(vii) read as under:--
"destitute and neglected child" means a child who--
(i) ....................
(ii) ....................
(iii) ....................
(iv) ....................
(v) ....................
(vi) is beyond the parental control; or
(vii) has lost his parents or one of the parents and has no adequate source of income; or
(viii) ....................
The custody of a destitute and neglected child under the provisions of Destitute and Neglected Children Ordinance, 2004, is either to be entrusted to a suitable person or is to be admitted to a Child Protection Institution. Child Protection Institution as per clause-f of the Act has not yet been constituted; therefore, custody of the child is to be entrusted to a suitable person under the provisions of 28 of the Act. The provisions of Section 28 of the Act require that the custody of a destitute or neglected child is to be entrusted to a suitable person who is capable and willing to look after the child. Such person is responsible for the care, education and well being of the child. In the instant case, Respondents Nos. 2 & 3 are looking after the child, their application was earlier in time and when Respondent No. 1 handed over his custody to Respondents Nos. 2 & 3, there was no other claimant before him on that date. It is reflected from the application moved by the petitioner, for the custody of the child, that no one has entrusted him the custody of the child. Perusal of the parawise comments submitted by Respondent No. 1 reveal that the child until his entrustment to Respondent Nos. 2 & 3, remained in the custody of Mst. Irshad Bibi, an employee of Data Darbar Industrial School. It cannot be proved from the medical report submitted by the petitioner that the child, who was medically treated, was the one claimed by the petitioner. There is no proof of admission of the child in the hospital and his discharge from there. Respondents Nos. 2 & 3 who are looking after the child for the past 10 months, have developed emotional attachment. They are in a position to look after the child properly and suitable persons for the purposes of provisions of Punjab Destitute Neglected Children Act, 2004.
The petitioner who has already applied for the adoption of an unclaimed child, can claim another child. The petitioner may approach Respondent No. 1 through a fresh application, who if approached, is directed to entrust the custody of some other unclaimed child on priority, after satisfying himself to the effect that the petitioner is a suitable person and is capable of properly bringing up the child.
Respondents Nos. 2 & 3 can keep the custody of the child subject to furnishing of a surety bond to the effect that the child shall be brought up properly, will be admitted in a school and shall not be forced to do any job or work for Respondents Nos. 2 & 3, until he attains the age of majority. Respondents Nos. 2 & 3 shall also deposit as per their undertaking, a sum of Rs. 500,000/- in the name of the child, which amount shall be incurred on his education. Neither any Board nor a Court under the Act has been established, therefore, Respondents Nos. 2 & 3 are directed to submit periodical reports as to the welfare of the child under Section 28(3) of the Act, 2004 to the learned District & Sessions Judge, Lahore.
The instant petition is disposed of in the above terms. No order as to costs.
(J.R.) Petition disposed of.
PLJ 2006 Lahore 651
Present: Mian Saqib Nisar, J.
Mst. RASOOL BIBI and others--Petitioners
versus
ADDL. DISTRICT JUDGE SIALKOT and another--Respondents
Writ Petition No. 8016 of 2000, decided on 31.1.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Application u/S. 12(2) was accepted by Civil Court--Order reversed by revisional Court--Assailed--Held: No valid reasons on the issue of limitation and on merits while upsetting the decision of Civil Court were found so revisional Court's order was declared to be without lawful authority--Order of Civil Court was well reasoned and found in accordance with law so it was restored in circumstances. [P. 653] A
Mr. Taqi Ahmad Khan, Advocate for Petitioners.
Mr. Muhammad Sohail Bhatti, Advocate for Respondents.
Date of hearing : 31.1.2006.
Judgment
Jehan Khan, the predecessor-in-interest of the parties, admittedly was the owner of the land measuring 40 Kanals and 12 Marlas (the suit land); his son Khushi Muhammad, Respondent No. 2, filed a suit on 4.10.1978, claiming that his father had gifted the land to him; the suit was allegedly conceded by Jehan Khan, the next day i.e. 5.10.1978 and thus the decree dated 7.10.1978 was passed. On the basis of this decree, the mutation of gift dated 31.1.1981, was sanctioned in favour of the Respondent No. 2. Anyhow, on 30.10.1993, the petitioners, who are the widow and daughters of Jehan Khan and step mother and sisters of the Respondent No. 2, brought an application u/S. 12(2) CPC, challenging the decree dated 7.10.1978 by alleging therein that Jehan Khan had never appeared in the Court to admit the claim of Respondent No. 2 regarding the gift and therefore, the consent decree obtained by him on 7.10.1978 is fraudulent and result of misrepresentation and impersonation. This application was resisted by Respondent No. 2; issues weer framed; parties were put to trial and the learned Civil Judge, vide order dated 16.12.1999, while holding that the application u/S. 12(2) CPC, is not barred by time, because it has been filed within time after attaining the knowledge of the alleged decree dated 7.10.1978, and that the Respondent No. 2, has not been able to prove that it is Jehan Khan, who appeared before the Court on 5.10.1978 and made a conceding statement, therefore, as the decree has not been proved to have been validly passed, rather is tainted with fraud and misrepresentation, therefore, the application u/S. 12(2) CPC, was accepted and the judgment and decree dated 7.10.1978 was set aside.
Against the above, Respondent No. 2, preferred a revision petition, which has been accepted and the findings of the learned trial Court on the issue of limitation as also on facts, have been reversed and the application u/S. 12(2) CPC of the petitioners, has been dismissed. On the question of limitation, the learned revisional Court, has held that at the best, the petitioner came to know about the decree in August, 1993, when an attempt was made by the Respondent No. 2, to dispossess them from the land in question, whereas, the application was filed on 30.10.1993 and therefore, the delay of three months has not been explained, whereas, it is required by the law to explain the delay of each day; no application u/S. 5 of the Limitation Act, has been filed and resultantly, the application u/S. 12(2) CPC was barred by time.
I am afraid, the learned revisional Court has not kept in view the provisions of Section 18 of the Limitation Act. It is the case of the petitioners that the decree was procured fraudulently and by misrepresentation and their predecessor Jehan Khan and they were kept in dark about the passing of the decree in a fraudulent manner, thus according to the above section, the period of limitation, which is prescribed for filing an application u/S. 12(2) CPC under Article 181, shall commence when the petitioners attained the knowledge in August 1993, thus the application has been filed within the period of the limitation and the petitioners were not supposed to explain why the application was not filed within the prescribed period; however, if the period of limitation has expired as no case u/S. 18 was made, then obviously the application under Section 5 of the Limitation Act, if applicable to such cause, should have been moved by the petitioner. The view taken by the learned revisional Court is absolutely misconceived and illegal.
As regards the merits of the case are concerned, Respondent No. 2, is the beneficiary of the decree dated 7.10.1978 and also of the alleged gift; there is no independent evidence led by him, as to when, his father Jehan Khan and in whose presence, had gifted the suit property to him. Be that as it may, the suit was filed on 4.10.1978, whereas the next day i.e. 5.10.1978, Jehan Khan appeared before the Court and made the conceding statement and thus the suit was got decreed on 7.10.1978. It is not established through any independent evidence, if Jehan Khan was the person, who appeared before the Court on 5.10.1978 and made the statement by conceding the suit of Respondent No. 2.
The argument of the respondent's side that the Finger Print Expert has given the positive report about the thumb impression of Jehan Khan affixed on his statement dated 5.10.1978 before the Court, suffice it to say that such report has not been tendered into the evidence; the expert was not examined for the purpose of enabling the petitioner to have an opportunity to cross-examine him, therefore, such report has no legal value.
As far as the view of the learned revisional Court that the Petitioner No. 1, in her statement before some local commission, has conceded about the knowledge of the gift, suffice it to say that when the said petitioner appeared as AW-1 in this case, she has not been confronted with her earlier statement to explain her position as required under Article 140 of the Qanun-e-Shahadat Order, 1984, therefore, such deposition made before the local commission, which was only to undertake the task of the local inspection and was never appointed with an object to record the statement of the parties, so as to be made part of the evidence for the purpose of adjudication of the questions involved in this case, cannot be used against the petitioners. It may be reiterated that for the purpose of proving a valid gift, particularly about the declaration, acceptance, consideration and delivery of possession, as the Respondent No. 2, is the beneficiary of the transaction, therefore, it was his duty to prove that a valid gift was made by his father in his favour, which was acknowledged by him in the suit, but I am afraid that no worth mentioning positive evidence has been brought on the record by the Respondent No. 2, particularly it is highly doubtful on the basis of the record, if the possession was delivered to the Respondent No. 2 under the gift, which is a sine-qua-non for the validity thereof.
There is another important feature of the case that the mutation in this case was not immediately attested on the basis of the alleged decree dated 7.10.1978, but after about three years i.e. on 31.1.1981; even at the time of the attestation of the mutation, Jehan Khan is not shown to be present, rather the mutation was attested on the basis of the decree dated 7.10.1978 alone. Be that as it may, as I do not find that the learned revisional Court has given valid reasons on the issue of limitation and also on merits, which can be taken validly for upsetting the decision of the learned trial Court, which is well reasoned, and an adjudication made in accordance with law; therefore, the order of the learned revisional Court cannot sustain, which is declared to be without lawful authority and of no legal effect and that of the learned trial Court dated 16.12.1999 is upheld. It may, however, be observed that even after the acceptance of application u/S. 12 (2) CPC, the suit of Respondent No. 2, which was decreed on 7.10.1978, shall be deemed pending; petitioners can be impleaded as party to the suit in place of Jehan Khan, who has died and it shall be decided on its own merits; anyhow, any observation made in this judgment, however, shall cause no prejudice to the rights of the Respondent No. 2. This petition is accordingly allowed.
(J.R.) Writ Petition allowed.
PLJ 2006 Lahore 654
Present: Sayed Zahid Hussain, J.
Dr. ANJUM HABIB VOHRA--Petitioner
versus
WASEEM AHMAD KHAN--Respondent
C.R. No. 1714 of 2005, heard on 21.2.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. XV, R. 3--Rejection of application to decide issue--Assailed--Held: All the issues including issue No. 3A required recording of evidence--It was not only consistent with the policy, rationale and object of the law that the piecemeal decision should be avoided--It was also in the interest of the parties as well to adopt such a course which could not prolong litigation--No illegality was committed by trial Court. [P. 657] A
PLD 1975 SC 457; AIR 1922 PC 405; AIR (34) 1947 Pat 185; AIR (36) 1949 H.P. 7; PLD 1976 Lah. 1433 & 1996 MLD 55, ref.
Dr. Danishwar Malik, Advocate for Petitioner.
M/s. Ch. Bashir Ahmed & Muhammad Ahmed Qayyum, Advocates for Respondent.
Date of hearing : 20.2.2006.
Judgment
Order dated 4.7.2005 whereby application moved by the petitioner for decision of Issue No. 3-A in the first instance was dismissed by the learned trial Court, has been assailed through this revision petition.
The contention of the learned counsel for the petitioner is that since Rule 3 of Order 15 of the Code of Civil Procedure, 1908 permitted and enabled the petitioner to make such an application, the same was moved, which application has been misconceived by the learned trial Court and a wrong decision has been made as if the application was for treating the issue as "preliminary" one. It is further contended that even if the application mentioned an incorrect legal provision yet it was indeed an application under Order 15, Rule 3 of the Code of Civil Procedure, 1908, which should have been decided by the trial Court within the parameters of the said provision of law. According to the learned counsel such illegality committed by the trial Court, need to be corrected and interfered with by this Court in revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908.
The learned counsel for the respondent on the other hand has supported the order passed by the learned trial Court who has urged that in the earlier round when C.R. No. 597/2005 was disposed of by this Court with consensus on 23.5.2005, not only the case was transferred from the Judicial Officer then seized of the matter it was ordered to be tried expeditiously but now an attempt has been made to prolong the litigation by seeking piecemeal decision of the matter although the respondent/plaintiff was ready to cooperate in the decision of the matter expeditiously.
The respective contentions have been considered. Suffice it to observe that in the suit for specific performance which is pending before the trial Court initially the issues were framed on 24.9.2004 whereafter an additional Issue (No. 3-A) was also framed. At the stage of recording of evidence, application for rejection of the plaint under Order VII, Rule 11 of the Code of Civil Procedure, 1908 was filed by the petitioner/defendant, which was dismissed by the learned trial Court vide order dated 18.1.2005. C.R. No. 597/2005 was filed in order to assail the said order. The said revision petition was disposed of on 23.5.2005 in the following manner:--
"(i) That the factual controversies emerging from the respective pleas in the suit qua which even issues have been framed, need to be decided after recording evidence by the trial Court. Application for seeking rejection of the plaint under the circumstances and litigation ensuing qua the same would have merely prolonged the agony of litigation between the parties.
(ii) The apprehension of the petitioner as expressed by the learned counsel that while deciding application the trial Court has made certain observations which may prejudice the stance of the petitioner-defendant, can be taken care of, by observing that such an order passed by the Court in an interlocutory application is merely a tentative assessment and does not take the place of findings to be recorded by the Court on the basis of evidence that may be produced by the parties. I have no doubt that the Court while dealing with the suit would not in any way be influenced by any such assertion noted in the order or observation made therein and that part of the order of the trial Court whereby the petitioner has been burdened with costs of Rs. 2000/- in view of the above consensus is modified that no costs will be claimed by the respondent from the petitioner.
(iii) In order to save the parties from lengthy and prolonged litigation, the learned counsel for the parties have agreed that the trial Court may be ordered to conclude the trial and dispose of the same expeditiously. Accordingly the trial Court is directed to conclude the trial and decide the suit before the end of year 2005.
(iv) In view of the approach adopted by the trial Court in order dated 18.1.2005, the learned counsel for the petitioner has expressed certain apprehensions that the said learned Court may not feel free to decide the matter on merits. In order to ward off this apprehension, the learned counsel for the respondent has agreed to the transfer of the suit to any other Court of competent jurisdiction. For that matter, let the file be placed before the learned District Judge, Lahore, who will entrust the suit to some other learned Civil Judge, for its trial and conclusion in accordance with law."
It was thereafter that application (under Order 14 and Section 151 of the Code of Civil Procedure, 1908) was filed on 21.6.2005 with the prayer that "the said issue may expediently be tried and decided first postponing the other issues to facilitate quick decision of the suit." Issue which was sough to be "tried and decided first" was No. 3-A, which reads as follows:--
"Whether the defendant has rescinded the sale agreement through notice dated 13.7.2004, and paid Rs. 20,00,000/- to the plaintiff? OPD."
The application was contested and as observed above, was dismissed on 4.7.2005. A great stress has been laid by the learned counsel to highlight that the object and purpose of Rule 3 of Order 15 of the Code of Civil Procedure, 1908 has been ignored by the trial Court who should have decided the said issue in the first instance.
In the instant case, as mentioned above, number of issues have been framed. Issue No. 3-A is one of those issues. All the issues require recording of evidence. It is not only consistent with the policy, rationale and object of the law that the piecemeal decisions should be avoided, it is also in the interest of the parties as well to adopt such a course, which may not prolong the litigation. In dismissing the application the learned trial Court did not commit any illegality or error of jurisdiction which could attract the supervisory jurisdiction of this Court under Section 115 of the Code of Civil Procedure, 1908. I would, therefore, decline interference with the order passed by the trial Court.
It may be observed that while disposing of the above-mentioned earlier revision petition it was observed with the concurrence of the then learned counsel for the parties that the trial Court will decided the suit before the end of year 2005. Since it is not possible now to adhere the said schedule it is expected and observed that the learned trial Court will proceed in the matter expeditiously and hopefully decide the suit before the end of year 2006.
The revision petition is dismissed accordingly with no order as to costs.
(J.R.) Revision dismissed.
PLJ 2006 Lahore 658
Present: Muhammad Khalid Alvi, J.
JAVED AKHTAR--Petitioner
versus
NASREEN AKHTAR and 2 others--Respondents
Writ Petition No. 20708 of 2004, heard on 15.2.2006.
Guardian and Ward Act, 1890 (VIII of 1890)--
----S. 12--Constitution of Pakistan 1973 Art. 199--Interim custody of minors--Guardian Court allowed the father to have 24 hours custody of the minors in a month--Appellate Court substituted the order by allowing him to have one meeting with than only in the Court--Assailed--Held: Paramount consideration in such cases was the welfare of the minors--Technicalities were not come in the way--The minors are statedly age 13/14 years needed care of the father as well--Totally depriving the minors from their association with father would not bring any healthy state of mind--Order of Guardian Judge was restored. [P. 659] A
Chaudhry Ahmad Masood Gujjar, Advocate for Petitioner.
Mr. Muhammad Yousaf Kazmi, Advocate for Respondents.
Date of hearing : 15.2.2006.
Judgment
With the concurrence of the learned counsel for the parties, this petition is treated as "Pacca Case".
Brief facts of the case are that petitioner being father filed an application under Section 25 of the Guardian & Ward Act for the custody of two minors; one male and female, against Respondent No. 1, who is the mother of the minors. An application under Section 12 for interim custody was also filed by the petitioner, which was disposed of by the learned Guardian Judge vide order dated 2.9.2004 and it was observed that on the last Saturday of the month at 7:00 PM the minors will be handed over to the petitioner and shall be returned at 7:00 PM on the next day. In this regard a security of Rs. 50,000/- was also called upon to be furnished with the learned Guardian Judge. The security in the said terms statedly has been provided. The order was, however, assailed by the respondent through an appeal, which has been allowed by the learned ADJ vide order dated 8.11.2004 and had only permitted meeting of the petitioner with his minor children in the Court. This order is being assailed through the instant constitutional petition.
It is contended by the learned counsel for the petitioner that petitioner being father cannot be deprived of the facility to see his children, even for one day in one month. It would not be good for the minors that they are not permitted to live with their father even for a day in a month, therefore, the order passed by the learned Guardian Judge was absolutely against the welfare of the children.
On the other hand, learned counsel for the respondent contends that petitioner had filed the main Guardian Petition as a counter-blast to the decree of maintenance passed against him. Despite there being a decree the petitioner is not making payment of any maintenance allowance and is only litigating on the sidelines. It is further added that petitioner is not interested in the welfare of the minor children.
I have considered the arguments of the learned counsel for the parties.
The paramount consideration in such like cases is the welfare of the minor. Technicalities are not to come in the way of decision in a case which relates to the welfare of minor. The minors are statedly aged about 13/14 years. They undoubtedly need care of the father as well, therefore, the arrangement made by the learned Guardian Judge of their meeting with their father once a month was a fair arrangement and also depicted welfare of the minors. Totally depriving the minors from their association with father would not bring any healthy state of mind. Resultantly, this petition is allowed. Order passed by the learned ADJ dated 8.11.2004 is declared to be illegal and without lawful authority. As a result thereof the order passed by the learned Guardian Judge dated 2.9.2004 shall hold the field.
(J.R.) Writ allowed.
PLJ 2006 Lahore 659
Present: Syed Shabbar Raza Rizvi, J.
LIAQAT ALI SHAHID--Petitioner
versus
DISTRICT RETURNING OFFICER etc.--Respondents
Writ Petition No. 16243 of 2005, decided on 26.9.2005.
Punjab Local Govt. Ordinance, 2001 (XIII of 2001)--
----S. 158--Bar to contest election--Petitioner, a Union Council Nazim wanted to contest election for the seat of Tehsil Nazim--Rejection of his nomination papers, assailed--Held: According to the bar mentioned in S. 158(1), if a Union Nazim or a Union Naib Nazim wanted to contest election for the office of Zila Nazim or Tehsil Nazim or Town Nazim he was required to resign from his office to qualify the election--Writ was disposed of in such terms that if petitioner had already taken oath as Union Nazim, he was to be presumed as disqualified to contest election, otherwise bar of S. 158 was not applicable to him. [P. 661 & 662] A, B & C
Mr. Muhammad Ahsan Bhoon, Advocate for Petitioner.
Date of hearing : 26.9.2005.
Order
The petitioner and the Respondents Nos. 4 to 8 submitted their nomination papers for the office of Tehsil Nazim, Sambarial District Sialkot. The nomination papers of the petitioner were accepted by the learned Returning Officer on 16.9.2005. The Respondent No. 3 filed appeal under Rule 14(4) of the Punjab Local Council Election Rules, 2005, objecting therein, the candidature of the petitioner on the ground that petitioner being a Nazim of UC No. 54 District Sialkot was disqualified to contest election as he had not resigned. Respondent No. 1, the learned District Returning Officer accepted appeal of Respondent No. 3 and rejected nomination papers of the petitioner vide order dated 19.9.2005, which has been impugned herein.
The learned counsel for the petitioner contends that learned District Returning Officer has not been able to interpret the provision of Section 158 of the Punjab Local Government Ordinance, 2001 correctly. The learned counsel for the petitioner submits that under Section 158, a person cannot hold more than one political offices but he can contest for the second office without resigning from the first office.
An electoral college for the election of a Tehsil Nazim, Town, Nazim and reserved seats of women, peasant and workers and minorities in the Tehsil council and Town council shall be all the members of the Union Council in the Tehsil or, as the case may, Town, including Union Nazim and Naib Union Nazim. The qualifications for candidates to contest election to an office of a Local Government are given under Section 152 of the Punjab Local Government Ordinance, 2001. Section 158 provides a bar against Nazims for dual Membership etc. which reads as under:--
"(1) A Zila Nazim, Naib Nazim, Tehsil Nazim, Naib Tehsil Nazim, Town Nazim, Naib Town Nazim, Union Nazim and Naib Union Nazim may contest election for any other political Office after resigning from the office of Nazim or, as the case may be, Naib Nazim":
Provided that a member of Zila Council, Tehsil Council, Town Council or Union Council may contest election for any other political office without resigning from the membership of such council:
Provided further that such member shall not hold more than one office at one time.
(2) Nothing in sub-section (1) shall apply to a Union Nazim or Naib Union Nazim, becoming members of the Zila Council or Tehsil Council, or the Members elected against reserved seats in the Zila Council or Tehsil Council, or being elected as Naib Zila Nazim or, as the case may be, Naib Tehsil Nazim."
It may be pointed out that sub-section (2) was added vide Punjab Local Government Amendment Act (XXVI of 2005). Original Section 158 consisted of sub-section (1) only and it included all Nazims i.e. Zila Nazim, Naib Zila Nazim, Tehsil Nazim, Naib Tehsil Nazim, Town Nazim, Naib Town Nazim, Union Nazim, and Naib Union Nazim. By new sub-section (2) of Section 158 Union Nazim or Naib Union Nazim have been taken out of the list given in sub-section (1) and nor there is no bar on them becoming members of the Zila council or Tehsil Council or the members elected against reserve seats in the Zila Council or Tehsil Council or being elected as Naib Zila Nazim or, as the case may be, Naib Tehsil Nazim. That means bar contained in sub-section (1) still applies to a Union Nazim or a Naib Union Nazim if he wants to contest election of Zila Nazim or Tehsil/Town Nazim. This amendment is consistent with Rule 53, which provides that, "in the first meeting of Zila Council, Tehsil/Town Council presided by Returning Officer cause the conduct of poll where the members of Zila/Tehsil/Town Council, as the case may be, shall elect from amongst themselves a Naib Zila/Tehsil/Town Nazim securing majority votes of total membership of the council through a secret ballot".
As noted above, Nazim Union Council or Naib Union Council has not been exempted from the bar mentioned in sub-section (1) of Section 158 of the Ordinance as far as election of Zila Nazim or Tehsil Nazim is concerned. For election of Zila Nazim or Tehsil/Town Nazim it is not necessary that candidate should be from amongst members of the respective house. For this reason, sub-section(2) of Section 158 of the Punjab Local Government Ordinance, 2001 allows Union Nazim or Naib Union Nazim to contest election of Naib Zila Nazim or as the case may be, Naib Tehsil Nazim without resigning from his office as both are members of Zila Councils and Tehsil Councils respectively, by virtue of their office. But if a Union Nazim or a Naib Union Nazim wants to contest the election for the office of Zila Nazim or Tehsil Nazim/Town Nazim, he is required to resign from his office to qualify for the election and bar mentioned in sub-section (1) of Article 158 of the Punjab Local Government Ordinance 2001 will apply with full force.
However, it may be clarified that a Nazim of a Union Council shall be deemed a Nazim for the purpose of performance of his functions, duties, rights etc. after his election result has been notified by the Chief Election Commissioner and he has taken oath. Under Section 160 of the Punjab Local Government Ordinance, 2001, a Nazim or a Naib Nazim is required to take oath before assuming the charge. Likewise unless a Nazim and Naib Nazim assumes the charge of his office, he cannot perform his functions, duties or exercise any powers etc. It flows from the above that he will also not be deemed a Nazim qualified or disqualified as a voter or a candidate to contest any election i.e. as mentioned in Rule 53 of Punjab Local Government Election Rules, 2005. Whenever an oath is provided for any office, the incumbent can only become functional after he has been administered the oath. Section 160 of the Punjab Local Government Ordinance, 2001 is reproduced as under:--
"(1) The elected Nazims, Naib Nazims and members shall take oath before assuming the charge of their respective offices.
(2) A Zila Nazim, Naib Zila Nazim and the members of Zila Council shall be administered oath of office by the concerned District and Sessions Judge.
(3) A Tehsil Nazim, Naib Tehsil Nazim, Town Nazim, Naib Town Nazim and members of the Tehsil Council and Town Council shall be administered oath of office by an Additional District and Sessions Judge designated by the District and Sessions Judge of the concerned District.
(4) A Union Nazim, Union Naib Nazim and members of a Union Council shall be administered oath of office by a judicial officer designated by the District and Sessions Judge of the concerned District."
"(iii) Where, under the Constitution, a person is required to make an oath before he enters upon his office, he shall be deemed to have entered upon the office on the day on which he makes the oath."
Can a member of the Parliament or a Provincial Assembly become a candidate or a voter for election of the President of Pakistan who has not taken oath?
The present writ petition is disposed of in the above terms i.e. if the petitioner has taken oath under Section 160 of the Punjab Local Government Ordinance, 2001, he shall be deemed to have assumed office of Union Nazim, therefore, shall be disqualified to contest election of Tehsil Nazim and his case will be covered by sub-section (1) of Section 158 of the Punjab Local Government Ordinance, 2001 but if he has not taken the oath as mentioned under Section 160 of the Punjab Local Government Ordinance, 2001, he shall not be deemed to have assumed the office of Nazim Union Council, in that case, the bar contained in sub-section (1) of Section 158 of the Punjab Local Government Ordinance, 2001, will not apply.
Order accordingly.
(J.R.) Writ disposed of.
PLJ 2006 Lahore 663
Present: Muhammad Muzammal Khan, J.
MUHAMMAD ASHIQ--Petitioner
versus
SAMEER ASHFAQ and others--Respondents
C.R. No. 524 of 2001, heard on 14.2.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 27--Production of additional evidence--Petitioner's application for production of additional evidence was dismissed by appellate Court in isolation of the appeal through a separate order mainly on the ground that no certified copies of the documents had been placed on record--Held : Appellate Court could not decided the matter of necessity of the documents for decision of appeal without hearing main appeal--Placing of photocopies of public documents was no ground for rejection of the petitioner as certified copies could be required to be produced at the stage of recording additional evidence--Civil revision was accepted and matter was remanded to Appellate Court for decision afresh in accordance with law. [Pp. 665, 666 & 667] A, C, D & E
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 27--Production of additional evidence--Held: O. 41, R. 27 has two parts--Under the first part, the required evidence to be produced should have been refused by trial Court and under the second, necessity of such evidence should have been felt by the Appellate Court. [P. 666] B
PLD 1992 SC 811; 1992 SCMR 1778; PLJ 1999 Lah. 1071; PLJ 2003 SC 50; PLJ 2004 Lah. 1768 & PLJ 2004 Lah. 697, ref.
M/s. Abdul Aziz Akhgar & Khanzada Mukaram Khan, Advocates for Petitioner.
Mr. Jahangir A. Jhoja, Advocate for Respondents Nos. 1 to 9.
Mr. Muhammad Ghani, Advocate for Respondent No. 10.
Date of hearing : 14.2.2006.
Judgment
This judgment proposes to decide two civil revisions, one in hand and the other C.R. No. 525/2001, as both these petitions arise out of consolidated judgments of the two Courts below, raise similar questions of law/facts and are inter same parties. Both these revision petitions challenged judgments/decrees dated 11.4.1998 and 8.1.2001 passed by the learned Civil Judge and learned Additional District Judge, Lahore, whereby suit for declaration filed by the petitioner was dismissed and the other for possession filed by the respondents was decreed and two appeals filed by the petitioner were dismissed, respectively.
Succinctly, relevant facts are that land measuring 7-kanlas 14-marlas and 22-sq. ft. Khata No. 1364 of the revenue estate lchhra Lahore was jointly owned by Muslims and non-Muslims as per revenue record for the year 1941-42. One Din Muhammad son of Fazal Din was one of the co-owners in the joint Khata under discussion on whose death his share of land measuring 1-Kanal 5-marlas and 12-sq. ft. was inherited by his three sons, four daughters and two widows. One of the legal heirs of Din Muhammad namely, Mst. Muhammadi Begum, being his daughter became owner to the extent of 2-marlas 45 sq. ft. but instead, she sold land measuring 1-kanal through different sale-deeds in favour of the respondents. Petitioner, who is purchaser of 15-marlas of land out of evacuee share in the joint Khata, sold by the Settlement Department in an open auction in favour of Muhammad Yaqub Sethi, got additional 7-marlas and 75 sq. ft. of land allotted under Settlement Scheme dated 11.8.1970 being in possession of the same. Petition filed a suit for declaration to the effect that mutations sanctioned on the basis of alienations made by Mst. Muhammadi Begum beyond her entitlement may be annulled as she lost litigation in revenue hierarchy. It was prayed in the suit that Mutations Nos. 2827 and 2897 touching Khasra No. 7206 may be declared void, being in excess of entitlement and consequently revenue officer concerned may be directed to correct the revenue record.
Respondents being defendants in the suit contested the same by filing their written statement wherein they claiming themselves to be bona fide purchaser for consideration. Counter defence of the respondents was that transfer of 7-marlas and 75-sq. ft. by the settlement department in favour of the petitioner was illegal/unauthorized.
Respondents on the other hand, filed a suit for possession of land mentioned in their plaint, which according to them, remained in their possession till 1990 when their predecessor Muhammad Ashiq breathed his last. Respondents pleaded that petitioner encroached the suit land unauthorizedly, hence they were entitled to possession of land measuring 1-Kanal, as per details given in their plaint.
Petitioner being defendant in the suit by the respondents, contested the same by filing his written statement, controverting the assertions in the plaint. The learned Civil Judge, cognizant of both the suits framed 28 consolidated issues arising out of controversial pleadings of the parties and after recording of their evidence, dismissed the suit for declaration filed by the petitioner and decreed the suit of the respondents for possession vide his judgment/decree dated 11.4.1998.
Petitioner aggrieved of dismissal of his suit and decretal of suit by the respondents, filed two separate appeals before the learned Additional District Judge, where he also moved an application praying permission to produce certain documents by way of additional evidence under Order XLI Rule 27 CPC. Learned Additional District Judge vide order dated 30.11.2000 dismissed application of the petitioner under Order I, Rule 10 and Order XLI Rule 27 CPC and thereafter dismissed his both appeals vide judgment/decrees dated 8.1.2001. Petitioner, thereafter, filed above referred to civil revisions wherein he again moved two distinct applications under Order XLI, Rule 27 and Order XVIII, Rule 2 read with Section 151 CPC praying similar relief as was refused by the appellate Court vide order dated 30.11.2000. Both these civil revisions were admitted to regular hearing and after completion of record have now been fixed for hearing. Respondents in response to notice by this Court appeared and where represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Besides the submissions of the parties touching merits of the case which included errors of law committed by Additional Commissioner (Revenue) who reversed well reasoned order of the Collector/DC, Lahore directing review of disputed mutations, overlooking of provisions of Section 7 of Evacuee Property Act, void nature of transfer of 7-marlas 75 sq.ft. to petitioner by Settlement Authorities and share of vendor/purchaser of the parties in joint Khata, appellate Court decided application of the petitioner moved under Order XLI, Rule 27 CPC in isolation of the appeal through a separate order dated 30.11.2000, whereas the appeal was decided later on 8.1.2001. Order disallowing permission to lead additional evidence to the petitioner, clearly demonstrates that first appellate Court did not consider respective cases of the parties and opted to dismiss the application on the grounds that certified copies of the documents sought to be produced were not placed on record inspite of the fact that those form part of the public record, petitioner did not furnish any cogent reason for not producing those documents before the trial Court, all the documents were in the knowledge of the petitioner but were deliberately withheld and that the trial Court did not refuse to accept those documents. All the reasons, which weighed with the appellate Court while dismissing application under Discussion, were given at random without keeping in view relevant provisions of law i.e. Rule 27 of Order XLI of the CPC. This provision of law is couched in negative language prohibiting parties to adduce additional evidence whether oral or documentary, at appeal stage but with two exceptions. Firstly, that the Court from whose decree the appeal is preferred had refused to admit evidence which ought to have been admitted and secondly that appellate Court required any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, it may allow such evidence to be produced. The provision under examination has its two parts, under the first the evidence should have been refused by the trial Court and under the second necessity of recording of evidence sought to be produced should have been felt by the appellate Court itself. In the case in hand, petitioner was not refused permission to produce evidence by the trial Court, hence his case fell under sub-rule (b) of Rule 27 of Order XLI of the CPC, under which the appellate Court should have felt the necessity of production of documents or examination of any witness or the same should have been felt by it for any other substantial cause. This determination could not be done while deciding application under this provision in isolation to the appeal before merits of the case were not brought to the notice of the Court and were not within its compass at that time. Precisely, my humble view is that application for additional evidence should have been decided alongwith the appeal so that in case of necessity felt by the appellate Court, it may not feel itself handicapped in allowing such evidence to be brought on record. In other words, appellate Court emerges in a better position to decide whether the documents sought to be produced are needed for just/fair decision of the case or will be helpful for it, in administering justice to the parties when it decides both the appeal and application for additional evidence, simultaneously, at one time.
Petitioner claimed that fraud/forgery committed by the respondents was scrutinized by the Collector/DC Lahore and the documents in support of their claim could only be traced after decision by the trial Court and being relevant to the controversy, were necessary for proper administration of justice. He asserted that the documents sought to be produced were copies of public record and those could not be manoeuvred by him, subsequently. Petitioner prayed for withdrawal of C.M.1-C/2001 moved by him before this Court under Order XLI, Rule 27 CPC and emphasized that by striking down appellate order dated 30.11.2000, he may be permitted to produce documents mentioned in his petition, which was verbatim reproduction of the application filed before the appellate Court.
From the above resume the Honourable Supreme Court in the case of Mst. Fazal Jan vs. Roshan Din and 2 others (PLD 1992 SC 811), wherein dispute of inheritance by an allottee was involved, it was graciously held that trial Court as well as appellate Court were not denuded of powers to summon all the necessary revenue record and also to summon the Patwari so as to supply omissions in evidence, from both sides. It was further held that was an appropriate case for exercise of power under Order XLI Rule 27 CPC for brining on record additional evidence even under suo moto exercise of jurisdiction. In another case of Zar Wali Shah vs. Yousaf Ali Shah and 9 others (1992 SCMR 1778) it was mandated that trial Court should have collected more evidence for administration of justice but it failed to exercise a vested jurisdiction and the case was remanded by the Honourable Supreme Court to the trial Court for fresh decision with the direction that all the legitimate facilities would be granted to both the parties, not only to produce evidence but also to make necessary amendments in the pleadings. This Court in case of Abdul Haq vs. Mst .Mughalani and 10 others (PLJ 1999 Lahore 1071) propounded that additional evidence can be led at any stage of proceedings and concept of bar against filling gaps/lacunas was no more available in Pakistani Jurisprudence and law, including the principle of Islamic justice. The recent case-law by the Honourable Supreme Court on the subject under evaluation has been brought about in the case of Ghulam Ahmad Chaudhry vs. Akbar Hussain (deceased) through his L.Rs. and another (PLJ 2003 S.C. 50). My own view in two earlier cases of Mst. Fatima Bibi and 5 others vs. Ghulam Safdar and another (PLJ 2004 Lahore 1768) and Mst. Naziran Bibi as Abdul Sattar and 12 others (PLJ 2004 Lahore 697) was that legitimate prayer to produce copies of public record, involving no probability of tampering, should be decided alongiwth the appeal, ignoring the old principles of filling of lacunas or filing of such applications at belated stage. All these aspects of the case were not kept in mind by the First Appellate Court. While disallowing application of the petitioner pryaing permission to produce additional evidence, on untenable reasons. Photocopies of the documents sought to be produced though could be considered, as per Article 164 of Qanun-e-Shahadat Order, 1984 yet certified copies of those were needed after the permission prayed, at the time of recording of evidence. Similarly, non-production of this evidence before the trial Court was also explained and withholding of these documents by the petitioner, was merely imaginary. I with a view to remand the case to the said Court for its just decision again, deliberately avoided to comment upon the documents sought to be produced so that this matter be decided at the time of re-hearing of appeal and my finding in this behalf may not prejudice the appellate judgment. Since both the appeal and application of the petitioner under Order XLI, Rule 27 CPC were decided in isolation to each other, against the spirit of law, both the judgments/decrees and orders in this behalf are not sustainable, being tainted with material illegalities/irregularities, envisaged by Section 115 CPC.
For the reasons noted above, C.M. No.1-C/2001 is dismissed as withdrawn whereas both these revision petitions are accepted, impugned order dated 30.11.2000 and judgment/decrees dated 8.1.2001 are set aside and both the cases are remanded back to the First Appellate Court for fresh decision in light of the observations made above by hearing both the matters together. Parties are directed to appear before the learned Additional District Judge, Lahore, on 27.2.2006, where the cases shall be decided preferably within a period of two months. There will be no order as to costs.
(J.R.) Revisions Accepted.
PLJ 2006 Lahore 668
Present: Sh. Abdul Rashid, J.
SHAHZADA ASHRAF DURRANI--Petitioner
versus
PROVINCE OF PUNJAB through CHIEF SECRETARY CIVIL SECRETARIAT, LAHORE and another--Respondents
Writ Petition No. 17574 of 2004, decided on 14.7.2005.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional Petition--Implimentation of order of B.O.R.--Forefather of petitioner was granted 182 Acres of agricultural land in 1891 on lease--Petitioner, being his only living grandson applied for its proprietary rights--MBR ordered to grant proprietary rights to the extent of 12« acres only--On review application the proprietary rights of the whole land was ordered--An application u/S. 12(2) CPC was also dismissed against such order by the B.O.R.--Held: Order of BOR attained finality--Government or B.O.R. was now estopped to raise any objection--Respondents were directed to implement the order and to grant the petitioner the proprietary rights of the land subject to deposit of its price according to the market value prevailing in the year 1992. [Pp. 676, 677, 678 & 681] A, B, C & D
PLD 1970 SC 1; 1999 SCMR 2268; 1995 CLC 583; 2003 SCMR 280 & 2004 SCMR 1274, ref.
Mr. Muhammad Ahmad Qayyum, Advocate for Petitioner.
Syed Ijaz Qutab, Mian Hanif Tahir, Muhammad Anzak Raja, Advocates & Mr. Najeeb Faisal Chaudhry, Addl. A.G. for Respondents.
Date of hearing : 29.4.2005.
Judgment
The facts leading to the institution of the present writ petition are that the Government of India in the year 1878 granted lease of 2000 Acres of waste land in District Montgomery (presently District Sahiwal) to Shahzada Nadir son of Shah Shuja-ul-Mulk the King of Kabul who was grand son of Ahmad Shah Abdali vide letter dated 28th August 1877. A regular lease-deed was executed between the parties on 1.7.1877 copy of which has been placed on the file as Annex B. Shahzada Nadir surrendered his 2000 Acres land in District Montogomery and in exchange he was granted lease of 182 Acres of waste land in Rakh Bangah of Tehsil and District Lahore vide letter dated 10.11.1890 and this subsequent grant was also on the same terms and conditions as were stipulated in lease-deed Annex B. The subsequent lease deed was executed between the parties on 30.11.1891 copy of which has been placed as Annex C. It was stipulated in the lease-deed dated 30.11.1891 (Annex-C) that the proprietary rights in the land shall be granted under Part V, Class II in terms--
"That if during term of this lease or on its expiration the Government shall resolve to sell the proprietary rights in the suit land, the first offer thereof shall be made to the lessee at a reasonable price to be fixed by the Deputy Commissioner Lahore."
In the lease-deed it was also stipulated that Shahzad Nadir during his life term and his one generation of legitimate male heirs will hold the lease free of revenue and a nominal amount of Rs. 250/- per year was fixed by the Government as annual lease money of the total land of 182 acres payable after the expiry of revenue free period of the lease. During the lifetime of Shahzada Nadir and after his death his male legal heirs all long remained in possession of the land and they brought the waste land under cultivation and developed it at huge expense and hard labour in the hope of getting proprietary rights. Sahibzada Ashraf Durani the petitioner being the only grand son of Shahzada Nadir applied for the grant of proprietary rights which was considered by the board of revenue firstly on executive side and later on judicial side by way of R.O.R. No. 2192 of 1982 decided on 16.6.1983 by Mr. S.M. Nasim then Member (Colonies) Board of Revenue. He had held that the petitioner was not entitled for grant of ownership as a matter of right and he however, directed that in view of the long standing possession and development of the lease land by the petitioner and his predecessors the petitioner be granted proprietary rights of 12« acres only under Government Policy vide order dated 166,1983 (Annex D). Aggrieved by said order, the petitioner then approached States and Frontier Regions Division, Government of Pakistan (SAFRON) successor of Secretary to State Government of India which had ordered the grant of proprietary rights to the petitioner. The Law and Justice Division of Government of Pakistan also endorsed the said order vide letters dated 26.1.1993 and 20.5.1993 copies of which are (Annex E and F), in which it had been stipulated that the lease document was self-contained in law and a further coverage of Government Grants Act 1895 was provided, which made it completely independent of application of any other law in this regard. Only the functional responsibility was entrusted to the Government of Punjab through Board of Revenue Punjab within the framework of law prescribed on the subject and thus it being a special case of special law was dealt accordingly by the SAFRON being successor of Secretary of State Government of India "in council".
In the meanwhile the petitioner challenged the order of Member (Colonies) Board of Revenue dated 16.6.1983 by filing Review Petition No. 131 of 1992 which was heard by Dr. Imtiaz Ahmad Senior Member (Colonies) Board of Revenue who vide order dated 29.9.1992 reviewed and recalled the order of his predecessor Mr. S.M. Nasim, Member (colonies) Board of Revenue by holding that in view of the petitioners of the lease-deed, continuous possession of the petitioner on the lease land for over 100 years and the petitioner being the only living grand son of Shahzada Nadir was entitled for proprietary rights of remaining granted land i.e. 169« acres. Copy of his decision is Annex G. Against the said order an application under Section 12(2) of CPC and review petitions were filed by some allegedly interested persons, which were finally dismissed by the full Court, Board of Revenue Punjab, Lahore on 18.3.2004. Copy of the said decision in Annexure K and at present no lis against the order of Senior Member Board of Revenue Punjab Lahore dated 29.9.1992 which has attained finality for all intents and purposes of law is pending. However, notwithstanding the aforesaid order and instructions of the Member Board of Revenue the Government of Punjab on one pretext or the other did not implement the said order by granting proprietary rights to the petitioner which has constrained the petitioner to file this petition with the prayer that the respondents may be directed to implement, execute order dated 29.9.1992 made by Member Board of Revenue/Colonies, (copy Annex G) in letter and spirit in the revenue record and confer proprietary rights of the land in favour of the petitioner with effect from year 1956 on a reasonable price as prevailed in the said area under the schedule of rates issued by the Government of the Punjab for such lands.
The respondents contested this petition and submitted their comments and as well as report to the effect that State land measuring 182 Acres situated in the revenue estate of Kalas Mari Tehsil and District Lahore was granted to late Shahzada Nadir son of Shah Shuja-ul-Mulk, the king of Kabul and grand son of Aala Hazrat Ahmad Shah in the year 1891 subject to the following conditions:--
"(i) The lease was for the term of Shahzada Nadir's life time and one generation of his legitimate male heirs and "Revenue Free".
(ii) If during the term of lease or its expiration, the Government shall resolve to sell the proprietary rights in the said land, the first offer thereof shall be made to the lessee, at a reasonable price to be fixed by the Deputy Commissioner and to be accepted or refused by the lessee within a time fixed by the Government provided that the said proprietary rights shall not be transferred to the lessee unless and until he shall have accepted to pay the land revenue assessed upon the said land by the proper officers of the Government. Provided further that the lessee shall have no right to such offer if the said lands are required for public purpose."
That the original lessee Shahzada Nadir expired on 25.12.1995 leaving behind the following five sons:--
Shahzada Hamdam,, 2. Shahzada Muazam, 3. Shahzada Muhammad Umar, 4. Shahzada Muhammad Akbar, 5. Shahzada Ahmad Mukhtar, The fifth son Shahzada Muhammad Akbar was the last who died in India on 7.12.1956 and thus the first generation of Shahzada Nadir Shah ended in the year 1956. The deceased lessee/lessees could not avail concession of acquiring proprietary rights in the lease in the tenancy during currency of lease or at the expiry of the said lease. In the year 1962 through a petition one Shahzada Yaqoob a descendent of Shahzada Nadir (the original grantee) requested for extension of the lease and the Board of Revenue Punjab vide order dated 13.5.1963 ordered that the lease could not be extended in favour of a third male generation of the grantee and also ordered that the same be resumed from the sitting lessee. Aggrieved by the said resumption order Mr. S.A. Durani the present petitioner filed an application before the then Member (Colonies) Board of Revenue Punjab, requesting for grant of proprietary rights in respect of 182 Acres of State grant land and the said Member (Colonies) vide order dated 16.6.1983 in ROR No. 2192 of 1982 decided that the lease according to the terms was to subsist only up to one generation of Shahzada Nadir and after that came to an end and the petitioner being the third generation was not entitled to get the proprietary rights under the terms of lease. However, as a special dispensation keeping in view the long occupation on the land ordered to confer proprietary rights up to 12 « Acres and had further ordered for resumption of the remaining land. Mr. S.A. Durrani the present petitioner then filed a review against the said order dated 16.6.1983 in the Court of Senior Member Board of Revenue which was decided in Review No. 131 of 1992 with the observation that the Government would resolve to sell proprietary rights after lifting up the ban imposed by the Chief Minister Punjab regarding sale of State land through private treaty. It had also been couched in the comments that the petitioner alongwith other descendents had dragged the Government in Writ Petitions Nos. 15184 of 1993, 17777 of 1996, ICA No. 407 of 1997 in Writ Petition No. 17777 of 1996 and Writ Petition No. 7305 of 1995 but the petitioner could not succeed to establish his claim and that he is not legally entitled for the grant of proprietary rights being third generation as the original lease term was only confined to first generation which expired in the year 1956.
During course of proceedings some applicants i.e. Ahmad Shujah, Nadeem Durani, Muhammad Yousaf Durani and Muzammil Durani filed C.M. No. 479 of 2005 and Shahzad Muhammad Zar Bakhat filed C.M. No. 696 of 2005 under Order I Rule 10 CPC read with Section 151 CPC for being impleaded as parties while claiming as successors in interest of late Shahzada Nadir. They alleged that they were necessary and proper party of the subject matter of the present writ petition and the petitioner had filed the petition by intentionally omitting them to acquire the entire rights under the lease to their exclusion.
The petitioner had resisted their said applications with the submission that the order dated 29.9.1992 passed by Dr. Imtiaz Ahmad Khan Member Colonies clearly held the petitioner to be the sole legal heir qualified to acquire rights under the lease and the same had attained finality against the applicants and until the said finding was set aside, they had no status or claim to be treated as necessary party to be impleaded under Order I Rule 10 CPC. The two applications C.M. No. 479/05 and C.M. No. 696/05 need to be addressed and adjudicated first.
It is admitted by the applicants that there is a finding against them i.e. vide order dated 29.9.1992 passed by Dr. Imtiaz Ahmad Khan Member (Colonies) Board of Revenue Punjab, S.A. Durani the present writ petitioner has been held to be the only living and son of the original lessee Shahzada Nadir entitled to the grant of proprietary rights of the disputed land under the instrument of lease dated 30.11.1891. They have further indicated that they had sought to have the same set-aside by filing of the Review Petition before the Board of Revenue Review No. 131 of 1992 and Section 12(2) CPC application in the Review No. 131 of 1992. The same had admittedly been dismissed vide order dated 18.4.2004 by the Full Board. It has also been stated that the applicant had further sought to have the same set-aside by filing a further Review Application before the Board of Revenue, which is statedly pending. While it is doubtful that such a review application lies under the law and the same has not, to this date, been brought on the record. Respondents in their report and parawise comments had also indicated that some kind of proceedings is pending before the Full Board but when confronted with the order dated 18.3.2004 were unable to indicate what further proceedings remained that could nullify the findings given in order dated 29.9.1992 by Dr. Imtiaz Ahmad Khan Member (Colonies). Even if some proceedings are pending before the Board of Revenue, the Board itself has not suspended the order dated 29.9.1992 which still holds the filed and remains final and binding qua the applicants. The applicants seem to be urging their case merely as being descendents of Shahzada Nadir, what they failed to recognized is that they have to pass the requirement of the lease deed itself in which they have failed miserably. The determination that they possess the qualifications under the lease deed for grant of proprietary rights was properly required to be adjudicated at the level of Board of Revenue and as noted already the applicants had availed their remedy against the same and had failed to convince the Board of Revenue about the merits of their case that they were descendents of Shahzada Nadir and a joint lessee of the land alongwith the present petitioner. The order, dated 29.9.1992 passed by the Member Colonies had, therefore, attained finality against them.
It is established proposition of law that before any person can be impleaded as a party in the proceedings he has to show that he is either necessary or proper party. The necessary and proper party had been defined in several judgments of this Hon'ble Court as well as that of Hon'ble Supreme Court of Pakistan that it is in relation to the subject-matter of the suit or for that matter a constitutional petition to which CPC is applicable in view of the law declared by the Hon'ble Supreme Court of Pakistan in Hussain Bakhsh vs. Settlement Commissioner, Rawalpindi and others (PLD 1970 S.C. 1). The subject-matter of the present writ petition is implementation of order dated 29.9.1992 passed in ROR No. 131 of 1992 by the learned Member Board of Revenue Punjab and in relation to the subject matter the applicants are neither proper nor necessary party as their presence is not necessary for the adjudication of the point in issue in the writ petition itself. The applicants claim to be successors in interest of Shahzada Nadir and during course of arguments their learned counsel has referred to "revised pedigree table of the families mentioned in the Revised Edition of Chiefs and Families of Note in the Punjab in which Pedigree table of Sardar Muhammad Hamdam Saddozai, Shah Shuja-ul-Mulk has been appended at page 58. The applicants claim to be the descendents of Imtiaz Jan born in the year 1910 and Niaz Ahmad Jan born in the year 1940 and Yaqoob born in the year 1923. This pedigree table does not link the applicants with their said three alleged predecessors as their off-springs have not been mentioned in the same. Furthermore, no proof of revenue record regarding Shajra Nasab of Imtiaz Jan, Niaz Ahmad Jan and Yaqoob has been brought on the file to show the applicants' link with Imtiaz Jan, Niaz Ahmad Jan and Yaqoob mentioned in the pedigree table given on page 58. The applicants in their review petition before the Board of Revenue had failed to establish their claim that they were the successors-in-interest of Shahzada Nadir and secondly the order dated 29.9.1992 passed by Dr. Imtiaz Ahmad Khan holding the petitioner to be the only living grand-son of Shahzada Nadir has attained finality, thus there is no force in the contentions of the applicants and as such their applications are dismissed.
Regarding the main petition it is submitted on behalf of the petitioner that the lease deed dated 20.11.1891 in part V thereto in sub clause (1) provides that upon expiry of the said lease the Government shall necessarily resolve to sell the land with first right of refusal to the petitioner at the reasonable price fixed and that the words "expiry of lease" referred to expiry of the revenue free period and since that event happened in 1956 the petitioner may be granted proprietary rights upon payment at the rates existing in the year 1956. Further in support of conferment of proprietary rights the petitioner has also placed reliance on a letter dated 28.9.1877 written by under Secretary Government of Punjab to the Secretary Financial Commission Punjab which expresses that hopes may be held out to the Shahzada that if they improve the estate the proprietary rights will be granted and that further on a letter dated 10.11.1890 written by Revenue Secretary Government of the Punjab to the Financial Commission of Punjab that proprietary rights would be conducted if in that time they improve the estate in a proper fashion. The case of the petitioner is that since the land had been improved, brought under cultivation at huge expense and with hard labour the term of the lease having been fulfilled he has become entitled to the grant of proprietary rights.
The learned Addl. Advocate General while appearing on behalf of the respondents has in support of the reply and comments had stated that the lease of the disputed land was for the term of Shahzada Nadir's life time and one generation of his legitimate male heirs and was revenue free and if during the term of said lease the Government desired to sell the proprietary rights in the suit land, the first offer thereof was to be made to the lessee at a reasonable price to be fixed by the Deputy Commissioner and to be accepted or refused by the lessee within a time fixed by the Government provided that the proprietary rights would not be transferred to the lessee unless and until he had paid the land revenue assessed on the said land by the proper officers of the Government and that the lessee would have no right to such offer if the land was required for any public purpose and that the original lessee Shahzada Nadir died on 25.12.1895 and his last son Shahzada Muhammad Akbar died in India on 7.12.1956 and thus the first generation of Shahzada Nadir came to an end in the year 1956 and the deceased lessee or lessees could not avail the concession of acquiring proprietary rights in the tenancy during currency of the lease or at its expiry and that the lease in favour of the petitioner no longer subsisted to entitle him to the grant of proprietary rights at a reasonable price. The perusal of the instrument of lease dated 30.11.1891 executed between the Secretary for State of India and Shahzada Nadir son of Shah Shuja-ul-Mulk of Kabul show that it is self contained law and its analysis can be made as under:--
(a) That the term of lease was for life time of Shahzada Nazir and one generation of his legitimate male heirs, "Revenue Free" (Clause 1 part 1 of the deed). It is obvious that the clause in question is primarily meant for qualifying the specific period during which it would be retained by the original lessee, his legitimate male heirs and one generation of the said heirs as "Revenue Free". After the expiry of the aforesaid period an exercise was to be conducted. It was optional on the part of Government to conduct an exercise, during the currency of the aforesaid clause or at its expiration, to offer the proprietary rights to the lessee under Clause 2 Part V of the lease deed.
(b) That the Government shall resolve to sell the proprietary rights during the term of the lease or at its expiration to the lessee (Clause 2 Part V of the deed). In the said clause of the instrument it has been held that "if during the term of the lease or at its expiration, the GOVERNMENT SHALL RESOLVE to sell the proprietary rights in the said land during the term of the lease or at its expiry. This is lent support by the letter of Mr. C.L. Trupper, under Secretary, Govt. of the Punjab to the Secretary, Financial Commissioner Punjab dated 28th August, 1877, which ways "Hopes may be held out to Shahzadas that if they improve the Estate proprietary rights will be granted". Similarly Mr. R.G. Thomson, Offg. Revenue Secretary Government, of the Punjab to the Financial Commissioner, Punjab dated 10th November, 1890, proprietary rights would be granted, if in that time they improve the Estate in a proper fashion. It appears that the Hopes were held out by using the word "SHALL" in the lease deed instead of the word "MAY". It is therefore, obvious that the Government is under obligation to sell this land and first offer would be given to the lessee. It is in the light and spirit of the referred Clause that proprietary rights are claimed by the petitioners.
(c) That the said land could only be resumed if required for public purpose, after giving lessee six month notice, on payment of compensation, during the term of the lease. There is absolutely no other clause under which the land could be resumed. (Clause 3 of part III of the deed).
(a) Clause 1 of Part-I relates to the period of the lease for which it is to be "Free of Revenue".
(b) Clauses 2 and 3 of the Part V read with the future i.e. sale or renewal/extension of lease to the lessee on the expiry of period mentioned in (a) above."
The Advocate-General had further opined that the Government did not take any action with regard to the resumption of land in 1956 when the male heir of the first generation died and instead mutations of inheritance were sanctioned in favour of descendent and further the land was not required for any public purpose so it was an implied renewal and extension of the lease on the payment of land revenue. The Advocate-General observed that as the petitioner's family was in continuous possession of this land for over 100 years it would be unlawful to eject him under the terms and conditions given in the lease form. He also observed that initial lease was granted by Secretary of State for India in Council and its successor was the State and Frontier Region Division Government of Pakistan. Therefore, their instructions contained in letter dated 6.8.2001 to decide the case in the light of the provisions contained in Clauses 2 and 3 of Part V of the lease deed were to be kept in view. After going through the terms of lease deed dated 30.11.1891, advice of the State and Frontier Region Division and view of the Advocate-General Punjab Lahore dated 27.6.1992 Dr. Imtiaz Ahmad Khan, Member Colonies, Board of Revenue vide his order dated 29.9.1992 observed as under:--
"It is evident from the record that the petitioner is in continuous possession one way or the other and under provisions of Clause 3 of Part V of the lease deed, if Government is not in need of the disputed land for any public purpose, the disposal of the land at the expiry of the lease shall be made according to the provision of Clause 2 of Part V of the lease deed which reads as under:--
"That if during the term of this lease or its expiration the Government shall resolve to sell the proprietary rights in the said lands, the first offer thereof shall be made to the lesse at a reasonable price to be fixed by the Deputy Commissioner of Lahore and to be accepted or refused by the lessee within the time named by the Government. Provided that the said proprietary rights shall not be transferred to the lessee unless and until he shall have consented to pay the land revenue assessed upon the said land by the proper officers of Government. Provided further that the lease shall have no right to such offer if the said land be required for any public purpose."
In this case the petitioner being the only living grand son of the original lessee Shahzada Nadir, is entitled to the proprietary rights of the disputed land under the instrument of lease dated 30.11.1891. If after lifting/relaxation of temporary ban by the Chief Minister, the Government resolves to sell the proprietary rights in the said land; the first offer thereof shall be made to the petitioner as per provisions of para 2 of Part V of lease deed dated 30.11.1891. However, till such time he will continue to hold the possession of the remaining land on lease on the terms and conditions to be worked out since the expiry of the first lease "Revenue Free" tenure."
(a) That the petitioner was the only living grand son of the original lessee Shahzada Nadir.
(b) That the Government did not take any action with regard to resumption of the land in 1956 when the male heir of the first generation died and instead mutations of inheritance were sanctioned in favour of the descendents which implied renewal/extension of the lease on the payment of land revenue etc. Thus the status of the petitioner as lessee of the land had been confirmed.
(c) That the land was not required by the Government for any public purpose.
(d) Ministry of State and Frontier Region, Government of Pakistan Islamabad, Law Justice Division Government of Pakistan, the concerned Agencies of the Federal Government came to the conclusion that the Government was obliged to grant proprietary rights under the instrument of lease.
(e) The Advocate-General Punjab in his letter also supported the grant of proprietary rights to the petitioner.
(f) That during the term of the lease or at its expiration the Government shall resolve to sell the proprietary rights in the said lands the first offer thereof shall be made to the lessee at a reasonable price to be fixed by the Deputy Commissioner of Lahore and to be accepted or refused by the lessee within the time named by the Government and by the use of expression "SHALL" in the lease deed the Government is bound to sell the land to the lessee in accordance with the terms of the lease deed.
(g) That the petitioner being the only living grand son of the original lessee Shahzada Nadir is entitled to the proprietary rights of the disputed land under the instrument of lease deed dated 30.11.1891.
Against the said order dated 29.9.1992 of Dr. Imtiaz Ahmad Khan, Member Colonies, Board of Revenue, an application under Section 12(2) CPC in Review No. 131 of 1992 and Review No. 30 of 1994 had been filed before the Full Board, Board of Revenue Punjab which was dismissed vide order dated 18.3.2004. Thus the order of Dr. Imtiaz Ahmad Khan Member Colonies Board of Revenue Punjab dated 29.9.1992 has attained finality. The reply filed by the respondents strangely is against their own record and particularly seems to have not noticed the order of Member Colonies dated 29.9.1992 or even the order of the Full Board, Board of Revenue dated 18.3.2004. The respondents have sought to argue that the lease expired with the first generation of Shahzada Nadir whereas the order dated 29.9.1992 by Dr. Imtiaz Ahmad Khan, Member Colonies had already settled this issue. When examined, the said order has no infirmity in it as well. It has been further submitted on behalf of the respondents that various proceedings before this have been undertaken in regard to the matter at hand but when examined none of the petitions were found to be seeking grant of proprietary rights. The respondents even failed to specifically indicate what precise proceedings were pending before them after the order of the Board dated 18.3.2004. It was also asserted that the matter may be referred back to the respondents for determination in accordance with law. It is however, clear from the record that after the order of the Member Colonies dated 29.9.1992 which has attained finality, there is no case for remand. Even otherwise the petitioner has been contesting the matter for several decades before the respondents and the matter has been delayed enough and needs to be resolved finally.
"The Respondent No. 1 (present petitioner) who is the only living grandson of Shahzada Nadir and falls in the second generation, acquired the status of the lessee in terms of Clause 2 Part V of the lease-deed when his father Shahzada Muhammad Hamdam, the eldest son of Shahzada Nadir, died in the year 1939. It was only the Respondent No. 1 who applied and came forward himself to get the proprietary rights of the entire land, under Clause 2 Part V of the lease deed as "The Lessee". The Senior Member (Colonies Board of Revenue, Punjab vide his judgment dated 16.6.1983 ordered that the proprietary rights up to 12 « acres be given to Mr. S.A. Durrani. The Mutation No. 457 dated 24.6.1984 for the land measuring 122 Kanals, 8 Marlas, comprising Khasra Nos. 385, to 390, 399, 400 and 406, situated in Revenue Estate Kalas Mari Tehsil Cantt., Lahore was sanctioned as reward in favour of the Respondent No. 1. (S.A. Durrani) as he and his family developed the land since the last 100 years and that the remaining land was to be taken away from him. Aggrieved by the order of Mr. S.M. Nasim Senior Member Board of Revenue, Punjab, dated 16.6.1983 for taking away the remaining land, the Respondent No. 1 approached the Ministry of States and Frontier Region, who are the lessors in respect of this property. This Ministry referred the matter to the Ministry of Law and Justice Division Government of Pakistan for scrutiny from the point of view of the prescribed law on the subject. Finally both the Ministers in conformity with each other held that the Government was under obligation to grant the proprietary rights in the present case. Dr. Imtiaz Ahmad, the then senior Member Board of Revenue (Colonies) further obtained the opinion of the Law Department Punjab and the Advocate-General, Punjab who confirmed the views given by the Federal Government on the subject of grant of proprietary rights to the Respondent No. 1 in terms of Clause 2 Part V of the lease deed. After fully satisfying himself with the scrutiny of his Department on the executive side, he transferred the case to the Judicial wing of the Board of Revenue and finally, in his judgment dated 29.9.1992, held that the Respondent No. 1 (S.A. Durrani) is the only living grandson of Shahzada Nadir who is entitled to acquire the proprietary rights of the remaining land under the prescribed law on the subject. However he added that the said proprietary rights would be transferred after a temporary/relaxable ban imposed by the Chief Minister, Punjab, on the sale state-land in the province is lifted/relaxed. He further observed that the Respondent No. 1 (S.A. Durrani) will continue to hold the land in question as on lease with effect from the termination or the `Revenue Free' tenure of the first lease money in 1956, till the proprietary rights are conferred. The Deputy Commissioner was accordingly directed to recover the lease money from the entire period of forty years in this regard. The lease money has been paid by the Respondent No. 1 from 1956 to date."
In view of the stance of the Government of the Punjab and Board of Revenue, as mentioned above, the respondents are now estopped to challenge the claim of the petitioner for grant of proprietary rights of the lease land.
After examination of Clause 1 of Part V of the lease dated 30.11.1891 and the letter dated 28.9.1877 it is clear that after expiry of the first generation of Shahzada Nadir the Government of India now Respondent No. 1 were under obligation to sell the land with first right of refusal to the petitioner. The sale under the lease instrument was to be at a reasonable price, which is distinct from market price. Further as the order of the Member Colonies dated 29.9.1992 has attained finality and the said order clearly found that the petitioner being the only living grandson of the original lessee Shahzada Nadir is entitled to the proprietary rights of the subject land under the instrument dated 30.11.1891. No reason is available on the record as to why the same may not be implemented now.
A legal question may arise that whether the Constitutional jurisdiction can be availed in order to enforce a right for conferment of the proprietary rights duly recognized in a judicial order of the Member Board of Revenue, the answer to this is furnished by Muhammad Iqbal Shah vs. Board of Revenue (1995 CLC 583) in which it had been observed as under:--
"Provincial Government having promised to transfer State land as awarded to the petitioner in the year 1971-72 could not now turn around and withdraw the same as valuable rights had accrued to the petitioner. Subsequent order of the Board of Revenue to deprive the petitioner of the benefit of reward was set-aside and direction was issued to it to complete the process of transfer of the land to the petitioner within three months".
The reported judgment was upheld by the Hon'ble Supreme Court of Pakistan in C.A. No. 1040/95 and appeal filed by Member Board of Revenue was dismissed with the following observations.
"There is abundant material on the record to support the contention of Respondent No. 1 that he was recommended for allotment by the Governor/MLA Zone-C, Lahore and in pursuance to that recommendation, Board of Revenue had issued special directions for allotment of land to him. In these circumstances, the learned Judge rightly held that the order passed by the Board of Revenue on 6.6.1993 was wholly without jurisdiction."
The present case of the petitioner rests on a higher pedestal than the claim of the petitioner in the said citation inasmuch as the right of conferment of proprietary right was accrued to in the original lease deed of 30.11.1891 and subsequently given due recognition in the judicial order of the Board of Revenue.
The case of the petitioner can be examined yet from another point of view that obligation arisen out of lease deed dated 30.11.1891 duly recognized in a judicial order is enforceable in a Constitutional jurisdiction under Article 199 of the Constitution and the reliance can be placed on Government of Pakistan through Collecorate of Customs and another vs. Amar Mehmood (1999 SCMR 2268), Muhammad Afzal vs. Shahzad Asghar Dar and another (2003 SCMR 280) and Messrs Ramna Pipe and General Mills (Pvt.) Ltd. vs. Messrs Sui Northern Gas Pipe Lines (Pvt.) and others (2004 SCMR 1274).
In view of the above discussion the petitioner has fully made out his case for implementation of order dated 29.9.1992 (Annex G) and grant of proprietary rights in respect of the lease land in pursuance of the said order.
Now a pertinent question arises as to what reasonable price can be charged from the petitioner for grant of proprietary rights in the lease land. The petitioner claims that reasonable price prevailing in the year 1956 under the schedule of rights issued by the Government of the Punjab for such land be charged from him. However, the first judicial order which recognized the right of petitioner for grant of proprietary rights was passed by Dr. Imtiaz Ahmad Khan, Member (Colonies) Board of Revenue on 29.9.1992, therefore, it will be fair that the petitioner be charged the price prevailing in the year 1992 under the schedule of rates issued by the Government of the Punjab for such lands for grant of proprietary rights in the lease land.
In view of the above discussion and findings I accept this petition and direct the respondents to implement the order dated 29.9.1992 (Annex G) passed by Dr. Imtiaz Ahmad Khan Member (Colonies) Board of Revenue, Punjab, and confer proprietary rights of the land in favour of the petitioner w.e.f. the year 1992 on payment of reasonable price that prevailed in the year 1992 under the schedule of rates issued by the Government of the Punjab for such lands. The petitioner will deposit the said reasonable price with the respondent within three months and from the date of its deposit the respondents shall confer proprietary rights in favour of the petitioner within one month.
(J.R.) Writ petition accepted.
PLJ 2006 Lahore 681 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
Mst. BHAGARI--Petitioner
versus
KHIA and 2 others--Respondents
C.R. No. 309/D of 1983, heard on 21.7.2005.
(i) Constitution of Pakistan, 1973--
----Art. 260 (3)--(added by Constitution (Second Amendment) Act, 1974 and substituted by Constitution (Third Amendment) Order, 1985--Muslim--Definition of--Any person who professes Muhammadan religion and acknowledges that there is no God but one Allah and that Hazrat Muhammad (PBUH) is his last Prophet is Muhammadan; that such person has absolute belief in absolute finality of Prophethood of Hazrat Muhammad (PBUH) and does not believe or recognize any other person claiming to be a prophet--Petitioner lady having professed to be a Muslim in strict terms laid down in the Constitution, her such statement/belief cannot be questioned--As far question of marriage of petitioner lady with a Quadiani or Ahmadi is concerned, such fact may affect validity of her marriage but would not affect her right to inherit her father. [Pp. 684 & 685] A & B
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XXIII, R. 3 & S. 115--Earlier suit between the same parties and on the same cause of action as the present one was withdrawn un-conditionally by plaintiffs/respondents--Present suit filed by same plaintiffs against same defendant on the same cause of action was barred by law and was not competent. [P. 685] C
PLD 1952 Sindh 54; Muhammadan Law by Mulla Ed., 1944 P. 17, Para 14 and Muhammadan Law by Tyabji 3rd (Ed) Pp. 56 & 57 ref.
Malik Muhammad Sharif, Advocate for Petitioner.
Mr. Kabir Mahmood, Advocate for Respondents.
Date of hearing : 21.7.2005.
Judgment
The parties are admittedly the sons and daughter of Ahmad Khan. In the first instance on 3.5.1972, the respondents filed a suit against the petitioner seeking a declaration that she is Ahmadi or Mirzai and is not entitled to inherit the estate of their father Ahmad Khan and that the entries in the revenue records to the contrary are illegal and void. On 4.12.1972, the petitioner-lady appeared before the learned trial Court to state on oath that she is the daughter of Ahmad Khan and sister of the plaintiffs and that she is a Sunni Muslim and it is her faith that Hazrat Muhammad (PBUH) is the last Prophet of Allah and the Mirza Ghulam Ahmad is not such prophet. On the same date Respondent No. 1 and the learned counsel for other plaintiffs withdrew the suit unconditionally. On 7.9.1977, Respondent No. 1 again filed a suit against the petitioner and impleading other brothers and sister as co-defendants for the same relief. The suit was contested by the petitioner. She filed written statement in Court on 5.10.1977 which was signed and verified on oath by her. In para-2 of her written statement she stated as follows:--
Apart from the said categorical statement one of the objection raised was that the suit is barred under Order 23, Rule 1 C.P.C. Learned trial Court framed the following issues:--
Whether the instant suit is barred by virtue of Section 12 read with Order 23, Rule 1, sub-rule 3 C.P.C.?
Whether the suit is mala fide, if so, whether the defendant is entitled to special costs under Section 35-A C.P.C.?
Whether the suit is time barred?
Whether the suit is wrongly valued for the purpose of Court fee and jurisdiction? If so, its effect and what is the correct valuation?
Whether Mst. Bhagari defendant was non-Muslim on her conversion as Mirza or Quadiani at the time of death of her father Ahmad Khan?
Relief.
Evidence of the parties was recorded. Vide judgment and decree dated 14.1.1981, learned trial Court decreed the suit of the Respondent No. 1 declaring the petitioner to the Mirzai/Quadiani. First appeal filed by the petitioner was dismissed by learned District Judge. D.G. Khan on 15.5.1983.
Earlier I had allowed this C.R. ex-parte vide my judgment dated 8.2.2000. Pursuant to C.M. No. 1637/2000, filed by the petitioner a re-hearing was ordered. I have reheard the case accordingly.
Learned counsel for the petitioner contends that the petitioner categorically stated professing to be a Muslim, believing in oneness and unity of Allah almighty and the finality of the prophethood of Hazrat Muhammad (PBUH). He contended that the said categorical statement of the lady professing to be a Muslim could not have been questioned at all and could not have been probed into and that the learned Courts below have acted without jurisdiction while holding the petitioner to be a non-Muslim despite her said statement. He relies on the case of Maula Buksh vs. Charuk and others (P.L.D. 1952 Sindh 54). Learned counsel for the Respondent No. 1 on the other hand, contends that it has come on record that the lady married with a Quadiani and that her progeny is also Qadiani and as such the learned Courts below have very correctly declared that she is not a Muslim as defined in Article 260 of the Constitution of the Country. According to the learned counsel since the first suit was withdrawn in view of misrepresentation made by the petitioner-lady the second suit was not barred.
I have gone through the available copies of the records with the assistance of the learned counsel for the parties. I have already noted above the statement made by the petitioner-lady. On the first occasion the suit was withdrawn on the statement made by her. She reiterated and professed to be a Muslim in her written statement which was signed and verified by her on oath. Now Article 260(3) of the Constitution defines a Muslim and a non-Muslim respectively as follows:--
"(a) "Muslim" means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophethood of Muhammad (PBUH), the last of the Prophets, and does not believe in, or recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad (PBUH); and
(b) "non-Muslim" means a person who is not a Muslim and includes a person belonging to the Christian, Hindu, Sikh, Budhist or Parsi community, a person of the Quadiani Group or the Lahori Group who call themselves "Ahmadis" or by any other name or a Bahai, and a person belonging to any of the Scheduled castes".
Now it will be seen that according to the Constitution of our country a Muslim means a person professing belief in the unity of Almighty Allah and in the absolute and unqualified finality of the Prophethood of Hadzat Muhammad (PBUH), the last of the Prophets and further does not believe in or recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any definition whatsoever, after Muhammad (PBUH).
Now going by the said definition of the Muslim it has to be seen as to how the faith is to be expressed by a person. Now any person who professes Muhammadan religion and acknowledges that there is no God but one Allah and that Hazrat Muhammad (PBUH) is his last Prophet is Muhammadan. Further terms are that such a person has absolute belief in absolute finality of Prophethood of Hazrat Muhammad (PBUH) and does not believe or recognize any other person claiming to a prophet.
Now to my mind, the petitioner-lady does profess to be a Muslim in strict terms laid down in the Constitution of the Country. Now if she so professes can she be questioned? Answer has to be in the negative. Learned counsel for the petitioner has very correctly relied upon the judgment of the Chief Justice (Tyubji) in the said case of Maula Bukhsh. I deem it proper to reproduce the following observations of his Lordship appearing at page-56 of the said report.
"The question raised before the Magistrate was whether Maula Buksh, who professed and claimed to be a Sunni-Muslim, was a Sunni Muslim, Evidence of the character given by Syed Abdul Rahim, besides being inadmissible, was wholly beside the point. For, it is well settled law, and one of the fundamental principle of the Muhammadan Law itself, that no Court can test or guage the sincerity of religious belief, as in order to hold that a person was Sunni Muslim, it was sufficient for a Court to be satisfied that he professed to be a Sunni Muslim. It is not permissible to any Court to enquire further into the state of the mind and the beliefs of a person who professed to belong to a particular faith and inquire whether his actual beliefs conformed to the orthodox tenets of that particular faith of (Mulla Muhammadan Law, 1944 Edn. P. 17 para 14, and Tyabji Muhammadan Law, 3rd Edn. pp. 56-57."
I may further note here that Sub-Article 3 was added to Article 260 of the Constitution vide Section 3 of the Constitution (Second amendment) Act, 1974 and then was substituted vide Article 6 of the Constitution (3rd amendment) Order 1985. Even where there are statutory requirements that certain act can be done only by a Muslim and that certain rights or privileges are available only to a Muslim, they are required to express the faith in the terms stated in the Constitution and to my mind such expression has never been questioned. This course is in accord with the settled state of law.
Now so far as question of marriage of the petitioner-lady with a Quadiani or Ahmadi is concerned, it may affect the validity of her marriage but it certainly does not affect her right to inherit her father.
Now the learned Courts below have further acted without lawful authority in holding the suit to be competent. There is no manner of doubt in my mind that earlier suit was withdrawn unconditionally and the present suit was barred by law and was not competent.
In view of the aforesaid reasons, this C.R. is allowed. Both the impugned judgments and decrees are set side and the suit file by Respondent No. 1 is dismissed with no orders as to costs.
(A.A.) Revision accepted.
PLJ 2006 Lahore 685 [Multan Bench Multan]
Present: Muhammad Nawaz Bhatti, J.
M/s. FECTO SUGAR MILLS LIMITED, KARACHI--Petitioner
versus
FEDERATION OF PAKISTAN through MINISTRY OF FINANCE & ECONOMIC AFFAIRS, ISLAMABAD and 4 others--Respondents
W.P. No. 6751 of 1996, decided on 18.5.2005.
Sales Tax Act, 1990 (VII of 1990)--
----S. 6(1-A)--Customs Act (VI of 1969), S. 31-A--Petitioner claiming exemption of regulatory duty and sales tax on his imported machinery--Admittedly, when bills of entry were filed by petitioner for release of machinery in question, SRO 560(1)/96 dated 1.7.1996 had already come into force--Section 6 (1-A) Sales Tax Act, 1990 provides that provision of S. 31-A, Customs Act 1969, would be deemed to have always been in corporated in Sales Tax Act, 1990, provided that amount of duty may have become payable in consequence of withdrawal of whole or any part of exemption or concession from duty whether before or after conclusion of contract for sale of such goods or opening of letters of credit in respect thereof--Even if after conclusion of contract of sale some duty has become payable the same would be recoverable--When disputed Bills of entry were filed, SRO 560(1) dated 1.7.1996 being in force, respondents were competent to claim and recover regulatory duty/sales tax in question. [P. 692] A
1996 SCMR 1917; 1994 PTD 5757; 1994 MLD 1136; 1998 SCMR 1404; 1993 SCMR 2267; PLD 1993 SC 176; PLD 1970 SC 514; PLD 1975 SC 397 and (1952) AC 109, ref.
Malik Muhammad Rafique Rajwana, Advocate for Petitioner.
Ch. Saghir Ahmad, Standing counsel for Government of Pakistan for Respondent.
Date of hearing : 20.4.2005.
Judgment
Brief facts of the case are that the petitioner company entered into a contract on 14th December 1993 with Messers Nissho Iwai Osaka, Japan. They in accordance with the provision of said contract, established an irrevocable Letter of Credit No. 0001/01/46/0301-D/A-D on 30.3.1994 through Muslim Commercial Bank for the importation of a complete particle Board Plant (Second Hand) from France, which inter alia contained Plant and Machinery and other equipment for said product. The Machinery reached at Karachi Port on 3.9.1996 against IGM No. 1279/96 dated 3.9.1996 and IGM No. 1302/96 dated 8.9.1996. The petitioner company filed Bill of Entry for the partial release of the machinery in question at Dry Port Multan, claiming the exemption of 10% regulatory duty and 18% of sales tax imposed by the Federal Government vide SRO 560(I)/96 dated Ist July 1996 but Respondent No. 5 through his order dated 29.9.1996 has imposed 10% regulatory duty on the basis of SRO No. 560(I)/96 dated Ist July 1996 and 18% sales tax on the basis of Section 3 of the Sales Tax Act, 1990. The petitioner company has also filed a Bill of Entry for the release of remaining consignment at Karachi, wherein the Custom Authorities at Karachi, Respondent No. 3 are demanding the impugned regulatory duty and sales tax on the basis of aforesaid notifications. Hence this writ petition.
Learned counsel for the petitioner does not press the prayer for enhancement of custom duty as well as the regulatory duty keeping in view the provision of Section 31-A of the Customs Act, 1969. However, he maintains his grievance to the extent of difference in rate of sales tax.
It is contended by learned counsel for the petitioner that crucial date for the assessment of regulatory duty would be the date of opening of Letter of Credit. Since the Letter of Credit in the present case was opened much before coming into force of SRO No. 560(I)/96 dated 1.7.1996, therefore, the rate of regulatory duty through the said SRO is not applicable to the petitioner's case. It is next submitted that provisions of Section 3(1-A) of the Sales Tax Act, 1990 were introduced through Finance Act much after the opening of Letter of Credit, thus are not applicable to the petitioner's case and that provisions of Section 31-A of the Custom Act, 1969 are also not applicable to the petitioner's case. He has further contended that a vested right has accrued with regard to the imposition of customs duty and sales tax. He relied on Al-samreze Enterprises vs. Federation of Pakistan (1986 SCMR 1917), Ahmad Investment (Pvt.) vs. Federation of Pakistan (1994 PTD 5757) and Fecto Cement Ltd. vs. Collector (1994 MLD 1136).
On the other hand, the learned Standing Counsel has vehemently opposed the writ petition and has submitted that according to Section 6(1A) of the Sales Tax Act, 1990, Section 31-A of the Customs Act 1969 shall be deemed to have always been incorporated in the Sales Tax Act, 1990, meaning thereby that enhancement in the rate of duty will be applicable to the petitioner's case. The learned Standing Counsel for Government of Pakistan has put his reliance on Messers M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others vs. Government of Pakistan through Secretary Finance, Islamabad and others (1998 SCMR 1404), whereby their lordships, after distinguishing Al-Samreze case (supra) (1986 SCMR 1917), Federation of Pakistan vs. Punjab Steel Limited (1993 SCMR 2267) and Govt. of Pakistan vs. Muhammad Ashraf (PLD 1993 SC 176), have held that language of Section 31-A of the Act is wide enough to include within its ambit all those cases where exemptions have been withdrawn after the insertion of Section 31-A in the Act. Relevant paras of the above cited judgment are reproduced below:
"My conclusion therefore is that Section 31-A has effectively achieved the purposes for which it was enacted as explained above. They only other position produced by Section 31-A depriving an importer of the right to be protected against any change in the quantum of exemption, on the basis of which he has entered into a contract for the sale of goods to be imported and opened a letter of credit or performed other acts, to what extent this section can be given retrospective effect and whether such retrospective effect can be given so as to affect past and closed transactions.
It is clear from the provisions of Section 5 of the Finance Act, 1988 that by the device of the deeming clause the newly-inserted Section 31-A is to be treated as part and parcel of the Act since its enforcement in 1969. Undoubtedly, therefore, the section is retrospective in operation. It is agreed on all hands that the well-settled principles of interpretation of statutes are that vested rights cannot be taken away save by express words or necessary intendment. It also cannot be disputed that the Legislature, which is competent to make a law, has full plenary powers within its sphere of operation to legislate retrospectively or retroactively. Therefore vested rights can be taken away by such a legislation and it cannot be struck down on that ground. However, it has also been laid down (Province of East Pakistan vs. Sharafatullah (PLD 1970 SC 514) that a statute cannot be read in such a way as closed or any facts or events that have already occurred. In that case the following postulation has been made:
`In other words liabilities that are fixed or rights that have been obtained by the operation of law upon facts or events for or perhaps it should be said against which the existing law provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends'.
This is an important principle which has to be kept in mind in the context of the present cases. Reference may also be made to another principle which has been followed in several decisions but to quote from Mehreen Zaibun Nisa v. Land Commissioner, Multan (PLD 1975 SC 397) where it was observed;
`When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist.' The classic statement as to the effect of deeming clause is to be found in the observations of Lord Asquith in East End Dutching Company Ltd. vs. Finsbury Borough Council (1952) AC 109) namet)'
However, in that case the aforesaid principle was subjected to in application to a given case to a condition that the Court has to determine the limits within which and the purposes for which the Legislature has created the fiction. It has been quoted from an English decision that `when a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between the persons the statutory fiction is to be resorted to'.
In the light of the aforesaid principles it cannot straightaway be held that the mere fact that Section 31-A has been given retrospective effect it will affect even the past and closed transaction or all the vested rights that have accrued. It is in this context that the remaining contentions of the learned counsel for the appellants are to be examined.
It has been urged on behalf of the appellants that as the bill of entry was presented in all these cases before Ist July, 1988, when Section 31-A was enacted and enforced, their cases are past and closed transaction.
There seems to be a great deal of force in this submission. Before the insertion of Section 31-A the position was that upon the presentation of a bill of entry, by virtue of Section 30 of the Act the levy of duty was crystalised. As explained in the case of Al-Samrez Enterprizes, the liability to tax was created under Section 18 with reference to the tax because it is the rate of duty by application of which the tax liability is to be quantified or assessed. Simultaneously, any benefit of exemption also takes effect on the same date because in the very nature of thing the liability is wiped off by virtue of the exemption at the same rate. Therefore, this is the crucial point of time at which by operation of law the liability is discharged. In other words, the rights and liabilities of the importers attained fixity on the said crucial date. Therefore a vested right has been created and the transaction is the quantification of the tax, if any, or by the discharge of liability on that date. The mere fact that any proceedings remained pending for assessment of the tax by a statutory functionary for the purpose of recovery of the dues will not prevent the law from operating and producing the result of closing the transaction. This is on the simple principle that every functionary is bound by the provisions of law and has to pass a lawful order which alone is protected. Besides on this mere calculation in terms of Section 30 read with Sections 18 & 19 of the Act, because the rate and value of the goods become fixed with reference to this date. Indeed no adjudicative process is involved in such a matter. Viewed in this perspective, if effect is given to the provisions of Section 31-A so as to undo the discharge of the liability which had already taken effect, it will amount to re-opening a past and closed transaction. The simple reason is that under the existing law there was no further liability to pay the tax and by giving retrospective operation to the new dispensation a liability is being created for the payment of the tax. I cannot see anything in the language of Section 31-A, expressly or by necessary intendment, to that effect. Such result is therefore not a necessary corollary of the fiction created by the deeming provisions of Section 5 of the Finance Act, 1988. Otherwise also it will be contrary to the principle, mentioned above, namely, that liabilities once fixed or rights created by operation of law upon facts or events, must not be disturbed by a general provision given retrospective effect unless such intention is clearly manifested by the language employed. In the case of Mehreen Zaibun Nisa (Supra) retrospective effect was not given to the changed law so as to invalidate certain acts of Legislature, although the entry in the relevant legislative list had been changed with retrospective effect".
The majority opinion in Malasses Trading and Export (Pvt.) Ltd. was referred with approval in the case of Federation of Pakistan vs. Punjab Steel (Supra) and Government of Pakistan vs. Muhammad Ashraf (PLD 1993 SC 176).
The effect of insertion of Section 31-A in the Act is that when exemption from payment of customs duty granted by the Government under Section 19 of the Act is withdrawn, then notwithstanding the fact that while exemption was enforced, the party had opened a letter of credit or concluded the contract with the foreign suppliers the amount of customs duty payable on the goods will be that which may have become payable as a result of withdrawal of exemption. It is, therefore, quite clear that the right to claim exemption from customs duty under a notification issued under Section 19 of the Act remains available to a party only as long as the exemption notification holds the field. However, as soon as the exemption notification is withdrawn, the payment of customs duty on the imported articles is to be determined in accordance with the provisions of Section 30 of the Act. The contention of the appellants that Section 31-A was inserted in the Act with the sole objection of doing away with the effect of the judgment of this Court in Al-Samrez's case and therefore, the exemptions granted by the Government after insertion of Section 31-A are not controlled by Section 31-A does not appear to be correct. Section 31-A was inserted in the Act by Section 5(2) of Finance Ordinance II of 1988 which provided that Section 31-A shall be deemed always to have been so inserted in the Act, meaning thereby that it was given retrospective effect from the date the Customs Act, 1969 came into effect. There is nothing in the language of Section 31-A (ibid), to justify the interpretation that this section applied only to the cases covered by the judgment of this Court in Al-Samrez's case or to those cases only, which did not acquire the character of past and closed transaction on the date of insertion of Section 31-A (ibid) is wide enough to include within its amit all those cases where exemptions have been withdrawn after the insertion of Section 31-A in the Act, as well".
I have heard learned counsel for the parties and perused the relevant documents.
The provisions relevant for determination of this case are Section 6(1A) of the Sales Tax Act, 1990, which are reproduced for ready reference:--
"6. Time and manner of payment.--(1) The tax in respect of goods imported into Pakistan shall be charged and paid in the same manner and at the same time and if it were a duty of customs payable under the Customs Act, 1969 (and the provisions of the said Act including Section 31-A thereof), shall, so far as they related to collection, payment and enforcement tax under this Act on such goods where no specific provision exists in the Act, apply;
(1A) Notwithstanding anything contained in any other law for the time being in force, including but not limited to the protection of Economic Reforms Act, 1992 (XII of 1992), and notwithstanding any decision or judgment of any forum, authority or Court whether passed, before or after the promulgation of the Finance Act, 1998 (III of 1998), the provisions of Section 31-A of the Customs Act, 1969 (IV of 1969) referred to in sub-section (1) shall be incorporated in and shall be deemed to have always been so incorporated in this Act and no person shall be entitled to any exemption from or adjustment of or refund of tax on account of the absence of such a provision in this Act, or in consequence of any decision or judgment of any forum, authority or Court passed on that ground or on the basis of the doctrine of promissory estoppel or on account of any promise or otherwise, by any Government department or authority".
The other provision relevant is Section 31-A of the Customs Act, 1969 which is reproduced as under:--
"31-A. Effective rate of duty. (1) Notwithstanding anything contained in any other law for the time being in force or any decision of any Court, for the purposes of Sections 30 and 31, the rate of duty applicable to any goods shall include any amount of duty imposed under Section 18 and the amount of duty that may have become payable in consequence of the withdrawal of the whole or any part of the exemption or concession from duty whether before or after the conclusion of a contract or agreement for the sale of such goods or opening of a letter of credit in respect thereof.
(2) For the purpose of determining the value of any imported or exported goods, the rate of exchange at which any foreign exchange is to be converted into Pakistan currency shall be the rate of exchange in force,--
(a) in the case goods referred to in clause (a) of Section 30, (immediately preceding the date) referred to in that clause;
(b) in the case of goods referred to in clause (b) of the aforesaid section (immediately preceding the date) referred to in that clause, and
(c) in the case of goods referred to in Section 31 on the date referred to in that section".
There is no denying the fact that when the disputed bills of entry were filed by the petitioner for the release of the machinery in question , SRO 560(I)/96 dated 1.7.1996 had already come into force. Section 6(1A) of the Sales Tax Act provides that provisions of Section 31-A of the Customs Act, 1969 shall be deemed to have always been incorporated in the Sales Tax Act, 1990 and Section 31-A of the Customs Act, 1969 provides that amount of duty may have become payable in consequence of withdrawal of the whole or any part of the exemption or concession from duty whether before or after the conclusion of contract or agreement for sale of such goods or opening of letters of credit in respect thereof. Thus, it is evident that if even after the conclusion of contract of sale some duty has become payable the same would be recoverable. Since in the instant case when the disputed Bills of entry were filed, SRO 560(I)/96 dated 1.7.1996 was in force, therefore, the respondents were competent to claim and recover the rate of duty/sales tax accordingly.
For what has been stated above, I find no merit in this writ petition which is accordingly dismissed. There is no order as to costs.
(A.A.) Petition dismissed.
PLJ 2006 Lahore 692
Present: Sayed Zahid Hussain, J.
MUHAMMAD MUSHTAQ, REGISTRAR GOVERNMENT COLLEGE UNIVERSITY, FAISALABAD--Petitioner
versus
CHANCELLOR GOVERNMENT COLLEGE UNIVERSITY FAISALABAD and 4 others--Respondents
W.P. No. 5506 of 2005, decided on 3.6.2005.
(i) Government College University Faisalabad Ordinance, 2002 (LXX of 2002)--
----S. 14--Petitioner removal from service by invoking concept of "pleasure" of Chancellor without adhering to principles of natural justice--Legality--Expression "pleasure of the Chancellor" mentioned in notification relating to termination of petitioner's service as Registrar of the University does not find support from contemporaneous law and is contrary to provision of S. 14 of Ordinance of 2002, which postulates appointment of Registrar by following certain procedure and observing criteria mentioned therein--Petitioner's appointment was not in absolute discretion of Chancellor "at his pleasure" therefore, pleasure of Chancellor appearing in notification in question, is to be regarded as otiose, superfluous and futile being contrary to statutory law--Any administrative/executive order/ instrument that may tend to deprive a person of his right to notice about proposed action or opportunity of showing cause to be given is not only un-Islamic but also unlawful--Besides even though petitioner had no Constitutional protection qua any such action against him, he had at least statutory protection and right of showing cause in terms of S. 41, of Ordinance 2002--Such procedure having not been followed, termination of service of petitioner was declared to be of no legal effect and un-sustainable in law. [Pp. 700 & 702] B & D
(ii) Government College University Faisalabad Ordinance, (LXX of 2002)--
----S. 14--Registrar of the University--Termination of service through notification issued on behalf of Chancellor of University, assailed--Principles of natural justice were not followed before terminating petitioner's service--Respondent's plea that petitioner appeared before Principal Secretary of Governor could not be treated as having afforded to him opportunity of being heard in terms of S. 41 of the Ordinance of 2002--Termination of petitioner's service was thus, not warranted and notification to that effect was declared to be of no legal effect and un-sustainable in law. [P. 702] C
(iii) Natural Justice--
----Principles of--Mere absence of provision of natural justice in a Statute--Effect--Principles of natural justice are integral part of jurisprudence and legal dispensation--Principle that no man should be condemned unheard is presumed to be embodied in Statute in absence of any provision to the contrary--Mere absence of provision as to notice in a Statute cannot override principle of natural justice. [P. 700] A
Lord Denning:--What next in law . P. 309; PLD 1958 Lahore 185; 1994 SCMR 2232; 2001 SCMR 934; 2004 PLC (C.S.) 992; AIR 1973 SC 205; 1998 SCMR 2268; PLD 2004 SC 108; PLD 2004 SC 271; 2004 CLC 1184; 2004 SCMR 1747; PLJ 2005 Lahore 727; 1990 SCMR 1404; 1988 PLC (CS) 759; PLD 1968 Lahore 786; 2005 PLC (CS) 558; PLD 1961 SC 531; PLJ 1997 Karachi 779; 1998 SCMR 1930; PLJ 1962 SC 142; PLD 1987 SC 304; PLD 1958 Lahore 185; PLD 1964 SC 410; PLD 1964 SC 451; 2001 SCMR 934; 2004 PLC (CS) 992; PLJ 2005 SC 212 and 1998 SCMR 1930 ref.
Mr. Muhammad Ahsan Bhoon, Advocate for Petitioner.
Ch. Aamer Rehman, Addl. A.G. Punjab; Ch. Rafiq Hussain; Advocate, Mr. Mushtaq Ahmad Malik, Advocates; Khalid Mahmood, Deputy Secretary Education and Javed Aslam Bajwa, Deputy Registrar/Advisor for Respondents.
Date of hearing : 30.5.2005.
Judgment
On 11.2.2004 Muhammad Mushtaq, the petitioner, was appointed as Registrar, Government College University, Faisalabad for a period of three years under Section 14(1) of the Government College University, Faislabad Ordinance, 2002. This was through a notification issued by the Government of Punjab, Education Department under the order of Governor/Chancellor. He assumed the charge of the office w.e.f. 14.2.2004 (A.N.) as is evident from notification dated 17.2.2004. His terms and conditions of appointment were notified by the Government of Punjab, Education Department through notification dated 26.3.2005 mentioning his tenure that "He shall hold office during the pleasure of the Chancellor for term not exceeding 3 years starting from 11.2.2004." Soon thereafter vide notification dated 30.3.2005 issued from the Governor's Secretariat, Punjab his services were dispensed with "with immediate effect as the same are no longer required by the University". This has been assailed by the petitioner through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 that the same be declared as "illegal and without lawful authority and ab-initio, void and nullity in the eyes of law."
Report and parawise comments have been filed by the contesting respondents.
The learned counsel for the petitioner contends that bare reading of notifications dated 11.2.2004, 17.2.2004 and 26.3.2005 would show that the appointment of the petitioner was under the specific provisions of the law i.e. Section 14(1) of the Ordinance which was for a fixed term, it could neither be curtailed nor described as contractual simpliciter. It is contended that three days prior to the impugned notification, the terms of appointment of the petitioner were notified and the abrupt action of his removal from service is un-understable and unlawful as the petitioner was not issued any show-cause notice nor afforded opportunity of hearing who has been taken aback by such a drastic action. It is contended that there was no complaint, allegation or charge sheet against the petitioner, which could justify such an action. As to the stance taken by the respondents in the comments, it is contended that concept of service during "pleasure" cannot be invoked which is no longer available to any authority under the prevailing Constitutional dispensation and that even no absolute and unbridled discretion vests in any of the respondents nor the discretion could be exercised in such an unreasonable and unjust manner. Reference has been made by him to a passage from "What next in the law" page 309 by Lord Denning, Mr. A.R. Azar Deputy Chief Engineer, West, North-Western Railway Lahore & others vs. The Federation of Pakistan another (PLD 1958 Lahore 185), Mrs. Anisa Rehman v. P.I.A.C. and another (1994 SCMR 2232), Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others (2001 SCMR 934), Pakistan State Oil Company Ltd. v. M. Akram Khan and others (2004 PLC (C.S.) 992), The D.F.O. South Kheri & others v. Ram Sanehi Singh (AIR 1973 S.C. 205), Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268), Government of Punjab through Minister for Revenue, Board of Revenue, Lahore and others v. Messrs Crescent Textile Mills Limited (PLD 2004 SC 108), Brig Muhammad Bashir v. Abdul Karim and others (PLD 2004 S.C. 271), Government of Pakistan through Secretary Ministry of Defence, Rawalpindi and another v. Messrs Shoaib Bilal Corporation and 2 others (2004 CLC 1104), Zubair Ahmad and another v. Shahid Mirza and 2 others (2004 SCMR 1747), and Prof. Dr. Aftab Ahmed Malik v. University of Engineering & Technology Lahore through its Registrar and 3 others (PLJ 2005 Lahore 727).
The learned Additional Advocate General Punjab and the learned counsel for the respondents have vehemently contested and opposed the petition and endeavoured to support the action taken against the petitioner. The learned Law
Officer has objected to the maintainability of the petition, as according to him the petitioner was a contract employee, which contract cannot be enforced through writ jurisdiction. According to him he was not governed by any statutory rules, therefore, the rule of master and servant was applicable and remedy for him at the most was the filing of suit for damages. It is contended that the petitioner had appeared before Respondent No. 5 on 14.1.2005 and according to his instructions was counseled. It is contended that his appointment was subject to the pleasure' of Respondent No. 1 and was terminable at any time without any cause. He has cited Sindh Road Transport
Corporation through its Chairman v. Muhammad Ali G. Khokhar (1990 SCMR 1404), Muhammad Aslam Chaichee v. Azad Government of the State of J&K through
Chief Secretary and another (1988 PLC (CS) 759), Shafqat Mahmood Lodhi v. The
Accountant-General West Pakistan Lahore (PLD 1968 Lahore 786), and Muhammad
Saeed Zameer and others v. Board of Governors, Aitchison College through
Chairman and 2 others (2005 PLC (C.S.) 588). M/S Ch. Rafiq Hussain and Mushtaq
Ahmed Malik, Advocates, learned counsel for the respondents in addition to the contentions of the learned Additional Advocate General Punjab have cited Messrs
Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury, and two others
(PLD 1961 S.C. 531), Liaqat Ali Channa etc. v. Federation of Pakistan etc. (PLJ 1997 Karachi 779), and Agha Salim Khurshid and another v. Federation of
Pakistan and others (1998 SCMR 1930) to supplement the contentions of the learned Law Officer. It is contended that he was promotingBradri-ism' in the
University and had been encouraging grouping of teachers and other staff members.
It has been contended that in such circumstances it had become extremely difficult for the Vice-Chancellor to run the affairs of the University in congenial and conducive atmosphere.
In view of the tenor of order of appointment of the petitioner and order dated 30.3.2005 whereby the services of the petitioner have been dispensed with, I need not dilate and dwell much upon the respective contentions of the learned counsel for the parties inasmuch as in my humble view the matter can be resolved and determined by examining the nature of appointment of the petitioner and as to whether he was entitled to a notice of show-cause and be heard in the matter before the action was taken against him. The parent legislation under which the Government College University, Faisalabad was established is the Government College University Faisalabad Ordinance 2002 (Punjab Ordinance No. LXX of 2002). It was promulgated on 19.10.2002. The object and purpose of the said Ordinance was to establish Government College University, Faisalabad, as is evident from its preamble. It was established accordingly being a body corporate having perpetual succession as per Section 3 of the Ordinance. Section 8 thereof serialized "Officers of the University" which included "the Registrar" of the University as per item (No. viii) thereof. The other Officers of the University included the Chancellor. The Vice Chancellor etc. Sections 9, 10 and 11 make mention of the powers, duties and functions of the Chancellor whereas Sections 12 and 13 with that of Vice-Chancellor. Section 14 deals with the office of Registrar, which reads as under:--
"14. Registrar:--(1). The Registrar shall be a whole time officer of the University and shall be appointed by the Chancellor on the recommendations of the government which shall consider for this purpose a panel of three persons recommended by a Search Committee appointed by the Syndicate and headed by the Vice-Chancellor on such terms and conditions as it may determine.
(2) Under the general supervision of the Vice-Chancellor, the Registrar shall--
(i) be custodian of the Common Seal and the academic records of the University;
(ii) maintain a register of Registered Graduates in the prescribed manner;
(iii) conduct elections of members to the various authorities in the prescribed manner;
(iv) be the Secretary of the Syndicate, the Academic Council, Advanced Studies and Research Board, the Selection Board and such other Committees as may be prescribed ; and
(v) preform such other duties as may be specified by the Vice-Chancellor and other authorities from time to time.
It is this provision of the Ordinance by virtue of which the petitioner was appointed vide notification dated 11.2.2004 and has been performing his duties and functions as such till 30.3.2005, the date when the impugned notification was issued. There are allegations and counter allegations contained in the petition and the reply filed by the respondents. As to what prompted the action against the petitioner and the issuance of notification dated 30.3.2005, its probe, verity and credibility need not be gone into by this Court in writ jurisdiction .
The stance of the respondents in essence is that the service of the petitioner was at the `pleasure' of the Chancellor meaning thereby, the same could be dispensed with at anytime irrespective of the tenure mentioned in notifications dated 11.2.2004, 17.2.2004 and 26.3.2005, and was a contract employment. The question, therefore, is whether such a holder of office could be removed in such a manner as has been done through the impugned notification. Such issues had been coming up before the Superior Courts directly or indirectly in several cases. Reference in this context may be made to Khawaja Ghulam Sarwar v. Pakistan through the General Manager, P.W.R. Lahore (PLD 1962 S.C. 142). That was a case of fundamental importance which was heard and decided by a Special Bench of the Hon'ble Supreme Court of Pakistan (Four Hon'ble Judges of Supreme Court of Pakistan and three learned Judges of the High Courts). The contract of service of the appellant in that case, a railway employee, was terminable at anytime on one month's notice or month's pay in lieu of notice. On 24.8.1953 termination order was issued to Kh. Ghulam Sarwar appellant therein that "his services were no longer required by the Administration, and that they were being terminated with effect from the same day with one month's pay in lieu of notice, in terms of paragraph 3 of his Service Agreement." Dealing with the subject as to the legality of the action terminating his services. It was observed by the learned Chief Justice late A.R. Cornelius, J. that "It seems to me necessarily to follow that the claim to an absolute and unfettered power of discharge by notice, without assignment or even ascertainment of reasons is inconsistent with these provisions." It was concluded by the Hon'ble Chief Justice that "Thus, I come to the conclusion that to contract employees also, all those protections must be extended which are not excluded either expressly or by necessary intendment. The employer namely the Government acting through a competent authority, cannot affect to ignore the requirements of the Constitution of 1935, and plead the letter of any clause in a contract in bar of a protection which is provided by that Constitution in the particular case." while agreeing with the views of the Hon'ble Chief Justice, late Fazle-Akbar, J, added that "There seems to be a disposition to draw highly refined distinction between removal by way of penalty and termination of service brought about otherwise than by way of punishment. I think that the tendency and its consequence will be lessened if it is borne in mind that the consequence is the same both in removal and termination of service by notice." Late Mr. Justice B.Z. Kaikaus, observed that "It was immaterial whether the order was passed as a result of disciplinary proceedings or otherwise or whether it implied a stigma or not. Every termination of service is a punishment for the employee because it inflicts harm on him. That is the criterion for deciding whether it is punishment or not and not whether it is a result of disciplinary proceedings. The servant places a value upon his employment and if he is deprived of it he stands punished." It was further observed that "No statutory provision was needed for enforcing a principle of natural justice. In the exercise of certiorari jurisdiction any such finding of guilty could always be quashed." Late Hamoodur Rahman, J, also found the termination of the appellant illegal and wrong for the conclusion that "I have come to this conclusion for I too wish, in the words of noble Lord Roche in the opinion which he delivered at the Board of the Judicial Committee of the Privy Council in the case of Venkata Rao (1) to "regard the terms of the section as containing a statutory and solemn assurance that the tenure of office, though at pleasure, will no be subject to capricious or arbitrary action" and am as equally anxious as the noble Lord was "that supreme care should be taken that this assurance should be carried out in the letter and in the spirit" in which it was granted by Parliament." (Underlined by me for emphasis).
Besides the above valuable observations in Kh. Ghulam Sarwar case
(Supra), reference may be made to Pakistan and others v. Public at large and others (PLD 1987 S.C. 304) wherein the Shariat Appellate Bench of Supreme Court had dealt with somewhat identical issue of retirement of a civil servant wherein some pertinent observations worth guidance are available that "The retirement is admittedly premature. Thus, it is deprivation of right to continue up to age of sixty which the other civil servants even placed in the same categories, not to talk of the civil servant in general, do not suffer.
Right to work in this context is very valuable, which is denied. This denial is more significant when it is visualised that in both categories, nature, experience and those placed in higher strata are normally hit by these provisions. It becomes more harsh when looked at from the angle that at the relevant stage of one' life and service, he needs the job to show his ultimate worth on the one hand and settle his affairs including family and children on the other. The application of this law also involves element of compulsion. The civil servant is forced to retire. Although no fault need be attributed and none is in fact attributed; however, the rules and practice relating thereto assume that it is not without fault or deficiency. Thus, it carries the stigma and disgrace in the public eye. This interference gets confirmed from the fact that the law itself is explicit in informing the enquirer, whosoever may be, that the retirement is in public interest. In other words, the continuance any further in the service of the affected officer is not in the public interest.
This cannot be without a fault, deficiency etc. Thus, this type of retirement adversely affects his reputation also. and as the curtailment of service is summary and sudden, the injury to reputation is also pronounced and acts as severe blow to the self-respect and dignity of man." Referring to the various Ayyat' of the Holy Qur'an and injunctions of Islam it was observed that "Right to property and honour, in addition to life, were also declared sacred with means: not only that their violation is to be punished and/or compensated but also that it is to be prevented. In this behalf while the victim needs to be protected against the violation, the one who violates is made accountable. All this cannot be possible without a notice and opportunity of hearing. The denial of these safeguards for doing justice would amount to
Zulm and Ziaditi against oneself as also the victim." After quoting someAhadees' it was observed " This Command is specific to the effect that when a public authority is to be exercised for resolving a controversy regarding rights and liabilities the decision would not be rendered without proceedings in which the person affected is also afforded an opportunity of hearing." Shafiur Rahman, J., (as his lordship then was), in respect of
Section 4 of the Civil Servant Act, 1973 that "every civil servant shall hold office during the pleasure of President", by referring to the
Constitutional provisions, the objectives resolution of Pakistan and the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet
(P.B.U.H) recorded the conclusion that "it must be held that the concept of tenure at pleasure is repugnant to the Injunctions of Islam" (Portions underlined by me due to relevance). These were observations made in presence of the statutory provisions in the Civil Servants Act, 1973 i.e. Section 4, ibid.
Reference at this juncture may also be made to Division Bench judgment in Mr. A.R. Azar, Deputy Chief Engineer, West, North-Western Railway, Lahore and others v. The Federation of Pakistan and another (PLD 1958 (W.P.) Lahore 185), wherein late M.R. Kayani, J., observed that "I add this note with a view to laying greater emphasis on the futility of the phrase "during pleasure" occurring in Article 180. I had occasion to say in an introduction to a Commentary (1) that members of the public services were said to hold office during the pleasure of the President or the Governor, as through anyone could be dismissed by either of them at his pleasure. This, I said, was a vicious phrase and a vestige of royal prerogative, for that there is no one so superior in a democracy that his pleasure can cause such havoc, and the Constitution should not have been encumbered with a misleading expression."
Suffice it to observe that principles of natural justice are integral part of our jurisprudence and legal dispensation and the principle that no man should be condemned unheard is presumed to be embodied in Statute in absence of any provision to the contrary. It has been laid down by the Hon'ble Supreme Court of Pakistan that mere absence of provision as to notice in a Statue cannot override principle of natural justice. Reference may be made to Commissioner of Income-Tax, East Pakistan v. Fazlur Rahman (PLD 1964 S.C. 410) and Province of East Pakistan and another. Nur Ahmad and another (PLD 1964 S.C. 451).
Besides, as mentioned above, the petitioner was one of the Officer of the University in view of clause (xiv) of Section 2 and item (viii) of Section 8 of the Ordinance, 2002. Since Section 14(1) of the Ordinance provided that the Registrar shall be a whole time officer of the University and he had been appointed for a period of three years, he could well be construed to hold that post permanently (for the term mentioned) unless of course removed in accordance with law earlier by giving him opportunity of showing cause for the action proposed to be taken against him. Even though he had no Constitutional protection qua any such action against him, he had at least a statutory protection and right of showing cause, as envisaged by Section 41 of the Ordinance, 2002. In presence of such provisions the petitioner was entitled to have an opportunity of showing cause against the proposed action.
It may be observed that gone are the days when the "pleasure" of the rulers and executive, used to be the rule. This Islamic Republic of Pakistan and the Nation is now governed by the Constitution and the laws. Such an absolute power and authority cannot be arrogated or exercised by any State functionary.
In Pakistan International Airlines Corporation (PIAC) through Chairman and others vs. Nasir Jamil Malik and others (2001 SCMR 934) the order of termination of employees of Pakistan International Airlines Corporation made without notice and hearing in violation of principles of `audi alteram partem' notwithstanding the principle of "master and servant" having been invoked therein was not approved by their Lordships and their reinstatement was upheld. In Pakistan State Oil Company Ltd. v. M. Akram Khan and others (2004 PLC (C.S.) 992) while disposing of large number of appeals relating to different State Corporations, it was observed that "It is well-settled by now that the principle of natural justice is attracted in the proceedings whether judicial or administrative if it result in consequence affecting "the person or property or other right of the parties concerned". Though the principle of "master and servant" was applicable yet this Court in the case of Mrs. Anisa Rehman v. PIAC and others (1994 SCMR 2232) has held the action of the Corporation violating the principles of natural justice as without lawful authority and of no legal consequences." In Farasat Hussain and others v. Pakistan National Shipping Corporation through its Chairman and others (PLJ 2005 S.C. 212) on consideration of the case law elaborately it has been observed that the concept of "master and servant" has undergone a change and the relationship of "master and servant" does not confer unbridled or unfettered powers to act whimsically or capriciously in violation of the principles of natural justice and well settled norms of justice. The legal position thus, being quite plain I feel no necessity of dilating upon this aspect any further.
The precedent cited by the respondent side i.e. Agha Salim Khurshid and another v. Federation of Pakistan and others (1998 SCMR 1930), however, has engaged my attention. That was the case regarding the removal of two members of National Industrial Relations Commission. They had been appointed for a specified period but with the change of Government their appointment was terminated, which was assailed through Constitutional petitions which were dismissed. The conspicuous feature of the appointment of those two members of National Industrial Relations Commission was that the contract of their service specifically provided that their appointment shall be liable to termination on three month's notice or three months salary in lieu thereof. In such context it was observed that "The services of appellants were governed by the terms of contract which they executed at the time they entered the employment, their services could be terminated in accordance with the terms contained in their service contract which provided 3 months' notice or 3 months' salary in lieu of the notice." Their termination since was found in conformity with the contract was upheld. In the present case, however, notification of appointment of the petitioner did not envisage the termination clause. It could thus reasonably be implied that he was in normal course entitled to complete his tenure unless curtailed earlier in accordance with law, after notice and opportunity of showing cause. The above-cited precedent, therefore, is not attracted to the facts and circumstances of the present case.
The contention of the learned counsel for the respondents that the petitioner appeared before the Principal Secretary of Governor on 14.1.2005 and was counseled, which according to them should be treated as hearing afforded to the petitioner, cannot be accepted, for the reason, firstly that it there was any complaint against the petitioner and he was facing some allegations for which he was heard on 14.1.2005, (as claimed by the respondents), then there was no occasion for issuing notification dated 26.3.2005. approving the terms and conditions of his appointment under Section 14 (1) of the Ordinance; Secondly such a counseling cannot be a substitute for a notice or opportunity of showing cause as envisaged by Section 41 of the Ordinance, 2002.
The disclosures made in the comments/reply, filed on behalf of the respondents show that the petitioner was indulging in such activates as were not conducive to the atmosphere of the University and the Vice Chancellor of the University had complaints against him and that even a criminal case was registered against him. Similarly the petitioner has his own view point that he had incurred the displeasure of the Vice-Chancellor by pointing out his some ill activities and was proceeded against accordingly; and that he has been found innocent in the investigation of the criminal case. As mentioned above I tend to refrain from even nothing such allegations and counter allegations in toto in the judgment and avoid to make any observation. However, prima facie, it appears that the action against the petitioner was prompted by such allegations and he was summarily removed vide notification dated 30.3.2005, although his terms and conditions of appointment were approved three days before i.e. on 26.3.2005. In such background the notice and opportunity of showing cause was absolutely necessary but his services were dispensed with, summarily without adhering and observing the minimum requirement of natural justice.
In view of the above, the notification dated 30.3.2005 whereby the services of the petitioner were dispensed with summarily without any show-cause notice to him is unsustainable in law, which is declared as of no legal effect. The petition is accepted accordingly with no order as to costs.
(A.A.) Petition accepted.
PLJ 2006 Lahore 703
Present: Muhammad Muzammal Khan, J.
MUHAMMAD YOUSAF and others--Petitioners
versus
Mst. ZAINAB BIBI--Respondent
C.R. No. 199 of 2000, heard on 30.9.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. 1, R. 9 & S. 115--Non-impleading of persons who claimed to be descendents of deceased land owner and were allegedly entitled to their share of inheritance besides respondent lady--Such person had neither challenged sale transaction nor challenged mutation in question independently--Mutations of sale to the extent of non-impleaded persons remained intact in as much as they were not challenged in suit filed by respondent lady and they themselves had no challenged the same independently--Non-impleaded persons could not be made co-plaintiffs at revisional stage and by impleading them as defendants no effective degree could be passed in their favour--Persons claiming to be impleaded would (have option to file independent suit to challenge sale mutation which had been kept intact by Court below. [Pp. 710 & 711] E
(ii) Specific Relief Act, 1877 (I of 1877)--
----S. 42--Limitation Act (IX of 1908), Art. 120--Suit for declaration claiming title filed after lapse of 20 years--Suit for declaration envisages 6 years time computable from date of accrual of cause of action--Petitioners being admittedly tenants had been paying due share of produce as per evidence on record--Respondent's claim in plaint that one year and nine months prior to filing of suit petitioners denied respondent's title where upon she filed suit for declaration of her title was not rebutted--Suit filed by respondent was thus, well within time. [Pp. 709 & 710] C
(iii) Specific Relief Act, 1877 (I of 1877)--
----S. 42--Civil Procedure Code (V of 1908), S. 115--Refusal of Appellate Court to allow petitioner to produce additional evidence--Legality--Petitioners availed maximum time for conclusion of their evidence before trial Court--File was however absolutely thirsty of proof--No prayer was made by petitioners for comparison of signatures before any of two Courts below or even before High Court--First Appellate Court had correctly refused permission to lead additional evidence therefore, no interference was warranted in the same. [P. 710] D
(iv) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 53--Illiterate Village lady--Mutation of sale by respondent lady on basis of alleged sale agreements assailed as being illegal, void, fraudulent, without consideration and result of impersonation--Respondent lady being illiterate and having denied transaction of sale--Onus shifted to petitioners to prove such transaction through positive evidence--Petitioners besides their oral evidence which was not confidence inspiring and the same being self contradictory was not worth reliance, also failed to prove sale through alleged agreement in as much as such agreement was not proved by producing marginal witnesses--Record showed that mutation of sale was entered one day prior to the alleged agreement to sell--Respondents' husband and her young sons who were alive at the time of transaction in question, were not associated in transaction of sale--Transaction of sale on basis of agreement to sell fell short of required proof--Suit filed by respondent lady was thus, rightly decreed by Courts below, warranting no interference in revision. [Pp. 708 & 709] A & B
AIR 1925 PC 204; AIR 1931 P.C. 303; 1984 SCMR 890; PLD 1990 SC 642; PLD 1990 SC 661; PLD 1991 SC 402; PLJ 1996 Lahore 989; 2001 SCMR 609; PLD 1992 SC 96; PLD 1981 SC 165; 1986 CLC 320 and 1988 MLD 1601 ref.
Ch. Shahid Saeed, Advocate for Petitioners.
M/s Syed Ahmad Saeed Kirmani and Muhammad Afzal Khan, Advocates for Respondents.
Mian Ghulam Rasul, Advocate for Applicant (in C.M. No. 328-2000).
Date of hearing : 30.9.2005.
Judgment
This judgment proposes to decide two civil revisions, one in hand and the other C.R.No. 279 of 2000 as those arise out of alike judgments/decrees, raise similar questions of law/facts, require appraisal of alike evidence and are directed against the same set of respondents. Both these revision petitions assailed judgments/decrees dated 29.6.1991 and 17.1.2000 passed by the learned Civil Judge and learned the learned Additional District Judge Jaranwala, District Faisalabad, whereby two suits filed by Mst. Zainab Bibi, the respondent were decreed and the appeals of Muhammad Yousaf etc. the petitioners and Ghulam Rasool, were dismissed, respectively.
Succinctly, relevant facts are that Mst. Zainab Bibi filed two suits for possession/declaration regarding land measuring 8 Kanals and 13 Marlas to the effect that the mutation of Sale No. 288 dated 12.4.1967, sale Mutation No. 289 of even date and that of inheritance of Abdul Karim (Mutation No. 837 dated 30.9.186) sanctioned by AC-II Jaranwala, on her behalf and on death of Abdul Karim were illegal, void, fraudulent, collusive without consideration and result of impersonation as she never entered into any sale transaction with predecessor of Muhammad Yousaf etc-petitioners, i.e. Abdul Karim deceased, and Ghulam Rasool sons of Muhammad Bakhsh, the mortgagees under her. Respondent in her one suit challenged sale Mutation No. 288 sanctioned on her behalf in favour of Abdul Karim deceased and in the other, she assailed sale Mutation No. 289 allegedly attested on her behest in favour of Ghulam Rasool petitioner in C.R. No. 279 of 2000 and in both these suits she also prayed a decree for permanent injunction to the effect that petitioners may permanently be restrained from claiming any title on the basis of mutations in dispute and thus, may also be restrained from alienating the property by any means whatsoever. The respondent prayed that she may be declared owner of the land detailed in the plaints, possession of which, may be given to her after declaring that the impugned entries in the revenue record on the basis of impugned sale/inheritance mutations were fake and ineffective qua her rights.
The petitioners being successors of Abdul Karim defendant in the one suit and Ghulam Rasool defendant in the other suit contested the suits by filing their respective written statements. Certain preliminary objections regarding suit being barred by limitation, estoppel and non-maintainability of suit against petitioners were raised whereas in the other suit, Ghulam Rasool vendee also contested the suit against him by filing his written statement. Controversial pleadings of the parties in both the suits led to framing of separate issues and recording of evidence. The learned Civil Judge who was seized of these matters after doing the needful, decreed both the suits of the respondent (Mst. Zainab Bibi) and through separate judgments decrees dated 29.6.1991 adjudged both the sale mutations as well as inheritance mutation sanctioned regarding her land.
The petitioners and Ghulam Rasool, being aggrieved of both the decrees in the two suits filed by the respondent, filed two separate appeals before the learned Additional District Judge wherein they also moved application under Order XLI Rules 27 CPC praying summing of revenue officer who attested the Mutations Nos. 288 and 289 namely Muhammad Afzal AC-II, and Muhammad Shafi son of Fazal Muhammad, the marginal witnesses of the agreement, finger print expert for comparison of thumb impressions of Mst. Zainab Bibi over the agreement (Ex. D.1), record keeper who attested the copies of Mutation No. 230 creating mortgage by Mst. Zainab Bibi and Baboo son of Kala in their favour, by way of additional evidence. The respondent contested the appeals and the prayer for permission to lead additional evidence and the appeals were dismissed alongwith their application by the learned Additional District Judge on 17.1.2000 whereafter the petitioners filed C.R. No. 199 of 2000 challenging the concurrent judgments and decrees of two Courts below, in the suit filed by Mst. Zainab Bibi (respondent) and Ghulam Rasool filed the other C.R. No. 279 of 2000 praying adjudgment of judgments/decrees in the other suit which were admitted to regular hearing and after completion of record have now been placed for final hearing. The respondent in response to notice by this Court appeared and was represented through her counsel.
Maqbool Ahmad etc, descendents of Baboo son of Kaka a co-vendor of the respondent who was her cousin as well as, co-sharer her co-mortgagor and had allegedly got sanctioned both the disputed mutations to the extent of his share, filed two applications, one in each civil revision (C.M.No. 328-C of 2000 and C.M.No. 329-C of 2000) seeking their impleadment as party to the civil revisions, under Order I, Rule 10 CPC. They had claimed that fictitious sale shown on behalf of their predecessor Baboo son of Kaka incorporated in the mutations challenged by the respondent, had been cancelled by the trial Court in totality but were incorrectly directed to be kept intact to their extent, by the appellate Court at their back, hence, they were necessary/proper parties to the revision petitions.
The learned counsel for the petitioners submitted that they were bona fide purchasers for valuable consideration and had proved sale in their favour through evidence on the file but a contrary view taken in the impugned judgments was not in consonance with the evidence on the file and thus, the same is not sustainable. It was further submitted that respondent after receiving the entire sale consideration, transferred the possession of the land subject of suit to the petitioners and both these acts were acknowledged by her before the revenue officer sanctioning mutations in dispute, hence, after completion of sale, her suits could not have been decreed. It was further submitted that both the parties hail from one village where they reside till today but respondent after about 20 years of sale filed a time barred suit to satisfy her greed on account of increase of prices of the property. According to them, suits on the face of those, were barred by limitation and could not have been decreed. It was further emphasized that there is no rebuttal to the statement of Lumberdar of the village who identified the respondent at the time of attestation of mutations, as DW. (Mushtaq Ahmad). It was further submitted that there were traces of sale in favour of the petitioners through the documents like an agreement to sell but those were incorrectly not relied by the two Courts below to the disadvantage of the petitioners. It was further urged that the application of the petitioners under Section XLI, Rule 27 C.P.C. was wrongly dismissed whereas, had the permission prayed been granted, the appellate Court could have given a better decision.
The learned counsel appearing on behalf of Maqbool Ahmad etc. The inter-pleaders who had prayed their impleadment to the civil revisions on the ground that the appellate Court erroneously kept the mutations of sale intact to the extent of their predecessor Baboo son of Kaka, submitted on their behalf that the appellate Court could not have reversed the judgments/decrees of the trial Court to their extent at their back or without giving them a notice, hence they were necessary parties to the revision petition.
The learned counsel appearing on behalf of the respondent refuted the arguments of the petitioners as well as those of the inter-pleaders and supported the concurrent judgments/decrees of the two Courts below, by urging that the respondent being an illiterate villager parda observing lady was entitled to special protection by way of independent advice at the time of parting with her immovable property but there was absolutely no evidence that she availed such opportunity inspite of the fact that her husband and young sons were available for this purpose but none of those appeared at the time of sanctioning of mutations. According to him, respondent had denied the transaction of sale, receipt of sale consideration and sanction of mutations whereafter onus of proof of all these things shifted on the shoulders of the petitioners who were the beneficiaries of the transaction but failed to discharge this obligation. It was further submitted that the petitioners were in the joint possession of the land in dispute since before the disputed mutations, as mortgagees and had been paying share of produce to the respondent regularly on account of which fake mutation proceedings, did not come to her knowledge According to him, on refusal by the petitioners to pay the share of produce of the land to the respondent, she sorted out the matter and came to know that her share of land had been fictitiously transferred in the names of Abdul Karim predecessor of the petitioners and Ghulam Rasool, whereafter she instantly filed the suits in hand which cannot be said to be barred by limitation. Prayer with regard to permission to lead additional evidence refused by the First Appellate Court was said to have been rightly denied as this evidence was available to the petitioners during the trial and was deliberately withheld.
I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, respondent is an illiterate villager lady and her denial of having entered into any transaction of sale with the predecessor of the petitioners and Ghulam Rasool petitioner through her suits and as witness (PW.3), onus shifted towards the beneficiaries to prove through positive evidence, not only the bargain between the parties but also the transactions of sale to have rightly been matured and reflected in the mutations under challenge in the suits. The petitioners in order to discharge the onus of proof coming towards them, examined DW.1 Mukhtar Ahmad who being a Patwari claimed to have entered the transaction in daily diary and the mutations in dispute but during the course of cross-examination admitted that no sale consideration was paid in his presence. DW.2 Allah Ditta tried to became a witnesses of the transaction without being named in this capacity on the mutations, deposed that bargain was struck for Rs. 6300/- out of which Rs. 4300/- was paid as earnest money, Rs. 1400/- was to be adjusted towards mortgage money and the rest of the sale price was to be paid at the time of attestation of mutation. He admitted in the witness-box that his narrations about visit to Patwari and Rapt Roznamcha were based on hearsay evidence. DW. 3 is Mushtaq Ahmad, who deposed that the respondent only acknowledged the receipt of sale consideration which was not paid in presence of the revenue officer sanctioning of the mutations and deposed to have identified the parties at the time of its attestation. DW.4 is Muhammad Yousaf one of the defendants/petitioners who deposed that bargain was struck by Rasheed and Allah Ditta DW.2 for an amount of Rs. 6300/- out of which Rs. 4300/- (1900 E.M. + 1400 Mortgage were paid) at the time of bargain and Rs. 2000/- was paid at the time of attestation of mutation. Examination of statement of DW.2 revealed that the stance of the petitioners (as DW.4) was not supported by him who stated that Rs. 4300/- was paid as earnest money and rest of the amount after adjusting mortgage debt of Rs. 1400/- was to be paid at the time of sanctioning of mutation. Statements of both the witnesses DW.2 and 4 were negated by copy of Mutation Ex. D. 3 and DW.1 who had stated that sale price was not paid in his presence. The other witness of bargain namely Rasheed was deliberately withheld and natural presumption is that had he appeared, would not have supported them. The petitioners besides their oral evidence which was not confidence inspiring and being self contradictory was not worth reliance, also failed to prove the sale by the respondent through agreement (Ex. D.7) as the same was not proved by producing its marginal witnesses. This lacuna in their evidence was attempted to be filled by moving an application under Order XLI, Rule 27 of CPC at belated stage. This aspect of the matter will be taken care, in the later part of this judgment. From resume of facts, the record revealed that mutations of sale were entered one day prior to the alleged agreement to sell (Ex. D.7) grading it to be oral sale but it has not been explained as to why the necessity of execution of agreement to sell was felt when the sale mutations had already been entered. It appears that the petitioners over acted to secure the claimed transactions of sale and those went against them due to lack of proof. Entries in the mutations revealed that the entire sale price was admitted to have been received by the respondent, earlier but contrary to it both the witnesses of the petitioners DW.2 and 3 categorically deposed that the balance sale price was agreed to be paid at the time of sanctioning of disputed mutations. Similarly, Ghulam Rasool produced same witnesses and their depositions were verbatim reproduction except, he himself appeared as DW.5 and produced DW.6 Muhammad Iqbal, Patwari who simply proved copy of Rapt Roznamcha Ex. D.2 which was prepared by him and Ex. D.3 copy of Jamabandi. In this manner, scan of evidence revealed that the payment of sale price to the respondent could not be proved by the petitioners who were already in possession of the land as tenants/mortgages. Revenue record on the file reflected that the petitioners remained in possession of the land as tenants/mortgages which did not mature into that of exclusive owner, on the basis of the claimed sale. These necessary requirements for completion of sale i.e. transfer of possession and payment of sale consideration, remained thirsty of proof.
Undeniably at the time of mutations challenged by the respondent, she had her young sons and her husband was also alive but none of them is shown to have been associated in the asserted transactions of sale. There is no evidence on the file to show that the respondent ever consulted any body about the sale or parting with her only a small piece of immovable land inspite of the fact that she was entitled to such advice. Under law parda observing ladies like the respondent, are protected while entering into the alleged sale transactions of their immovable property and the transferees/beneficiaries are bound to prove good conscience of the transaction but no such evidence was produced by the petitioners, negatively reflecting on their transaction. The petitioners were required not only to prove their bargain with the respondent but also to prove the transactions through independent evidence and then to prove the mutations of sale by showing payment of sale consideration and transfer of possession, thereunder. The petitioner failed to bring an iota of evidence in support of bargain, transactions of sale or mutations as neither the revenue officer who attested the mutations was summoned or produced nor any witnesses who negotiated the bargain, was examined and at the same time, none of the marginal witnesses of the claimed agreement to sell (Ex. D.7) was produced. In this manner the petitioners failed to prove the sale in their favour. If any precedent about the required proof of transactions by a female lady is needed, reference can be made to the judgments in the cases of Mst. Farid-un-Nisa versus Munshi Mukhtar Ahmad and another (AIR 1925 Privy Council 204), Tara Kumari versus Chandra Mauleshwar Prasad Singh (AIR 1931 Privy Council 303), Mst. Mahmooda Begum and others Versus Major Malik Muhammad Ishaq and others (1984 SCMR 890), Janat Bibi versus Sikandar Ali and others (PLD 1990 SC 642), Mst. Fazal Jan versus Roshan Din and 2 others (PLD 1990 SC 661) Mst. Badshah Begum versus Ghulam Rasool and 4 others (PLD 1991 SC 1140), Mst. Hassan Bibi versus Ghulam Siddiqu and others (1992 CLC 402), Bajju versus Mst. Rahman Bibi (PLJ 1996 Lahore 989) and Amirzada Khan and another versus Itbar Khan and others (2001 SCMR 609).
As regards objection of the petitioners about the suits of the respondent, being barred by limitation, as those were filed in 1987 to challenge mutations of 1967, after lapse of 20 years. Apparently the objection appeared to be very attractive but lost its worth on deeper examination. For filing a suit under Section 42 of the Specific Relief Act, 1877, Article 120 of the Limitation Act 1908, envisaged 6 years time computable from the date of accrual of cause of action. Respondent in her plaint pleaded that the petitioners had been paying her due share of produce of the part of the land which was not mortgaged with them and averred in paragraph 3 thereof that she had mortgaged 69/836 share of her holding with the petitioners for an amount of Rs. 1.400/-. All the three witnesses of the respondent (PWs.1 to 3) unanimously deposed that the respondent had mortgaged 6 Kanals of land out of her holding of 18 Kanals 3 Marlas and rest of it remained with the petitioners as tenants, share of which they had been paying to her regularly. These witnesses were subjected to lengthy cross-examination but veracity of their statements could not be shattered. Respondent while appearing as her own witness as PW.3 deposed that about one year and nine months earlier to the filing of her suit, petitioners stopped paying her share of produce whereupon she inquired and revealed attestation of mutation in question. She further deposed that petitioners committed fraud, as she never entered into any transaction of sale with them and did not receive any sale consideration. There is no rebuttal to the stand taken by the respondent and mere self-serving statements of DWs in this behalf were not enough to misplace impact created by the evidence of the respondent. Under law fraud vitiates even solemn proceedings and there is no time limit to challenge any such transaction, which was deliberately kept away from the affectee, as per judgment of the Honourable Supreme Court in the case of Messrs Bisvil Spinners (Pvt.) Ltd versus Pakistan through Secretary, Ministry of Finance, Islamabad and 2 others (PLD 1992 SC 96). Besides it, limitation for filing declaratory suit would start only from the date of actual threat to title visualized by the owner. The respondent had claimed and proved that the petitioners had denied her title only one year and nine months earlier to the filing of the suit hence, from this date; both the suits were within time. Reference in this behalf can be made to the cases of Mst. Izzat versus Allah Ditta (PLD 1981 SC 165). Fateh Sher and another Versus Sharif Khatoon and 3 others (1986 CLC 320) and Qutab Din through his Legal Heirs Versus Muhammad Siddiq and 2 others (1988 MLD 1601).
Scan of evidence on the file and the trial Court's record revealed that the petitioners availed maximum time for conclusion of their evidence before the trial Court and left no stone unturned in effort to proved their case. File is absolutely thirsty of the proof as to why application for comparison thumb impressions was not moved to the trial Court. Law regarding comparison of signatures is settled by this time to effect that this exercise could be done by the Courts themselves but no prayer to this effect was ever made by the petitioners before any of the two Courts below or even before this Court. Besides all these reasons, the First Appellate Court correctly refused permission to lead additional evidence and the petitioners could not demonstrate that reasons assigned in this behalf were not lawful.
As regards impleadment of descendents of Baboo son of Kaka, there is no cavil that initially the suits to challenge the mutations in question were filed by respondent and she asserted that she did not enter into any sale transaction with the predecessor of the petitioners and Ghulam Rasool. Baboo son of Kaka neither filed his own independent suit to challenge the discussed mutations nor he applied to became co-plaintiff alongwith respondent, meaning thereby that mutations to the extent of Baboo remained unchallenged in these proceedings but the same were wrongly adjudged in toto by the trial Court, without there being any such allegation. In view of this legal position and facts proved on the file, the appellate Court kept the mutations of sale to the extent of Baboo son of Kaka, intact. The applicants, who are his descendents and seek impleadment to the civil revisions for the first time, are not necessary/proper parties thereto as their presence is not needed for just/fair decision of the suits by the respondent. Thus the applicants may, if law permits them and they are advised, to file their independent suits to challenge the sale transactions by their predecessor, may do so but they cannot be allowed to be impleaded parties to these proceedings. Another aspect of the case is that suits were filed by the respondent to which if at all, these persons can be impleaded, they will be arrayed as defendants or respondents in the revision petitions and in this capacity no effective decree to the extent of their share of mutations, can be passed.
For all the reasons noted aboved, both the revision petitions have no merit and prayer of the petitioners regarding grant of permission to lead additional evidence is declined and both the applications filed by Maqbool Ahmad etc. for their impleadment are dismissed alongwith the main revision petitions being devoid of merit. There will be no order as to costs.
(A.A.) Order accordingly.
PLJ 2006 Lahore 711 [Rawalpindi Bench Rawalpindi]
Present: Abdul Shakoor Paracha, J.
ZAFAR AWAN, ADVOCATE, TALA-GANG DISTT. CHAKWAL--Petitioner
versus
DISTRICT/SESSIONS JUDGE CHAKWAL & another--Respondents
W.P. No. 3173 of 2003; heard on 15.3.2005.
(i) Civil Courts Ordinance, 1962--
----S. 3--Criminal Procedure Code (V of 1898), Ss. 190 & 193--Court of Additional District Judge and Court of Additional Sessions Judge--Jurisdiction to take cognizance of offences--Extent of--Court of Additional District Judge has been created for purpose of Civil jurisdiction in terms of S. 3 of Civil Courts Ordinance, 1962--However, for purpose of exercise of criminal jurisdiction, no Court by the name of Additional Sessions Judge has been created under Cr.P.C.--Only one Court in the name of Court of Sessions has been created by Legislature--Additional Sessions Judges are however, appointed to exercise jurisdiction in Court of Sessions while deciding sessions cases--Session Court by itself has no jurisdiction to take cognizance of any offence--Proceeding for taking cognizance by Court of Sessions explained and illustrated in terms of Ss. 190 and 193 Cr.P.C. [Pp. 715, 716 & 717] A, B & C
(ii) Criminal Procedure Code, 1898 (V of 1898)--
----S. 193--Authority of Sessions Judge to distribute criminal cases to Additional and Assistant Sessions Judges in terms of S. 193 Cr.P.C. explained and procedure for hearing of cases outlined. [Pp. 717 & 718] D
(iii) Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 9(1) & 190(2)--Creation of separate Sessions Division at "T" and appointment of Sessions Judge at "T"--Magistrate in such new Sessions Division had to sent case to
Sessions Judge at T' and not to Sessions Judge atCh', the previous Sessions
Division--Magistrate having sent challan to Sessions Judge at "Ch" has acted wrongly in as much as Sessions Judge at "Ch" had no jurisdiction to withdraw case from the Court of Sessions Judge at "T" and transfer the same to Additional Sessions Judge in his own Sessions
Division--Challan of case was directed to be submitted to competent Magistrate who would send the same in terms of S. 190 Cr.P.C. to the Court of Sessions
Division at "T". [P. 718] E
Mr. Zafar Awan, Advocate for Petitioner.
Mr. Tanvir Iqbal, A.A.G. for Respondents.
Date of hearing : 15.3.2005.
Judgment
This judgment shall dispose of Writ Petition No. 3173 of 2003 as well as Criminal Revision No. 206 of 2003, because in both of them validity of the order dated 22.11.2003, passed by learned Sessions Judge, Chakwal in case F.I.R. No. 50 dated 3rd July, 2001, registered under Sections 302/324/148/149 PPC, at Police Station Tamman, District Chakwal has been challenged and interpretation of Section 9(1) Cr.P.C. on the basis of which Notification of the Government of Punjab dated 8.11.1995 has been issued, is involved.
Brief facts of the case are that the Writ Petition No. 3173/2003 is filed by Mr. Zafar Awan, Advocate, praying that all the orders passed by the learned Additional Sessions Judge, Chakwal, after 28th of October, 2003 relating to the above mentioned case F.I.R. be declared void, illegal and of no legal effect. Another connected Criminal Revision No. 206 of 2003 is filed by Malik Muhammad Masoom against the order dated 22.11.2003, passed by the Sessions Judge, Chakwal, whereby the aforesaid case F.I.R. was withdrawn from the Court of the Additional Sessions Judge, Talagang and was made over to the Court of Additional Sessions Judge, Chakwal.
It is contended that Talagang has been notified as an independent Sessions District vide notification of the Government of the Punjab dated 8th November, 1995, purported to have been issued under Section 9(1) Cr.P.C. and therefore after creation of Sessions District/Civil District at Talagang, the Sessions Judge, Chakwal, may be named as Sessions Judge Headquarters for administrative purposes was not vested any jurisdiction to withdraw the case pending in the Court of Session at Talagang. Next it is argued that Circular No. 7886/RHC/MIT dated 25th of May, 1999 was merely administrative in nature and it could not curtail the independence of Session District of Talagang. It was also contended that through the administrative notification, the Lahore High Court could not abridge or curtail the jurisdiction of Session District of Talagang. Next it was argued that without prejudice to the jurisdiction of the Lahore High Court to issue an administrative notification like the one dated 25th of May, 1999, such administrative notification could not nullify the effect of statutory notification purported to have been issued under Section 9(1) of the Code of Criminal Procedure.
To resolve the controversy between the parties reading of notification, issued under Section 9(1) Cr.P.C. by the Government of the Punjab, is necessary. Relevant parts of Notification (No. SO/Judl-II), 8(16)/91 dated 8.11.1995, issued by the Government of the Punjab is reproduced hereunder:--
"In exercise of the powers conferred upon him under Section 9(1) of the Cr.P.C. 1898, the Governor of the Punjab is pleased to appoint the following Additional District & Sessions Judges/District & Sessions Judges to be the Sessions Judge in Session at the districts mentioned against each with effect from the date they took over the charge as such.
1-11
13-24
In exercise of the powers conferred upon him under Section 5 of the Punjab Civil Courts Ordinance, 1962 (West Pakistan Ordinance II of 1962), the Governor of the Punjab is pleased to appoint the above mentioned Addl. District & Sessions Judge/District & Sessions Judges to be the District Judge at Civil Divisions mentioned against each with effect from the date they took over the charge as such.
SECRETARY TO
GOVERNMENT OF THE PUNJAB
HOME DEPARTMENT"
"Classes of Criminal Courts and Magistrates.--(1) Besides the High Court and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of criminal Courts in Pakistan, namely:--
(i) Courts of Session;
(ii) Courts of Magistrates"
"9. Court of Session.--(1) The Provincial Government shall establish a Court of Session for every Sessions Division and appoint a Judge of such Court.
(2) The Provincial Government may, by general or special order in the official Gazette, direct at what place or places the Court of Sessions shall hold its sitting; but until such order is made the Courts of Session shall hold their sittings as heretofore.
(3) The Provincial Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts.
(4) A Sessions Judge of one Sessions Division may be appointed by the Provincial Government to be also an Additional Sessions Judge of another Division, and in such case he may sit for the disposal of cases at such place or places in either Division as the Provincial Government may direct.
(5) All Courts of Sessions existing when this Code comes into force shall be deemed to have been established under this Act."
A bare reading of Section 9 reveals that under sub-section (1) the Provincial Government is required to establish a Court of Session for every Sessions Division and appoint a Judge of such Court. (The said Judge is known as Sessions Judge). Under sub-section (3), which is very relevant, the Provincial Government is authorized to appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts.
Generally, Additional Sessions Judges are treated as separate Courts. The difference can very well be appreciated when we examine the Civil Jurisdiction of Additional District Judge under Section 3 of Civil Courts Ordinance, 1962 a separate Court in the name of `Court of the Additional District Judge' is created alongwith the Courts of District Judge and Civil Judge. The said provision reads as under:--
"3. Classes of Courts.--Besides the Courts of Small Causes established under Provincial Small Cause Courts Act, 1887, and the Courts established under any other enactment for the time being in force, there shall be the following classes of Civil Courts, namely:--
(a) The Court of the District Judge;
(b) The Court of the Additional District Judge; and
(c) The Court of the Civil Judge."
Thus for the purpose of Civil Jurisdiction, the legislature has created a Court of Additional District Judge. But for the purpose of exercise of Criminal Jurisdiction no Court by the name of the Court of the Additional Sessions Judge has been created under the Code. The legislature has created only one Court in the name of Court of Sessions.
From the above position, it is manifest that in a Sessions Division there is only one Court by the name of "Court of Session" which is presided over by the Sessions Judge. The Additional Sessions Judges are appointed to exercise jurisdiction in the Court of Session while deciding the Sessions cases.
The Sessions Court, by itself has no jurisdiction to take direct cognizance of any offence (Section 193(1)). The procedure for taking cognizance is that when a case exclusively trial-able by the Court of Session is challaned, first it is to be presented before the Court of Magistrate of First Class. The said Magistrate takes the cognizance of the offence and without recording any evidence, sends the case to the Court of Session for trial as required under Sections 190 (1) and (2) of the Code. The said provisions reads as under:--
"190. Cognizance of offences by Magistrate.--(1) Any Magistrate of the First Class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court, may take cognizance of any offence--
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police officer;
(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion that such offence has been committed which he may try or send to the Court of Session for trial.
(2) A Magistrate taking cognizance under sub-section (1) of an offence trial-able exclusively by a Court of Session shall, without recording any evidence, (send the case to Court of Session for trial.)"
Under sub-section (1) of Section 193 of the Code, the Court of Session takes cognizance on two occasions. (1) When case is sent up to the Court of Session by the Magistrate under Section 190(2) of the Code. (2) In special cases, when the same is expressly directed by the Code or by any other law. In the former case after receipt of the case from the Magistrate, the Court of Session is required to take cognizance and then proceed further for trial.
Under sub-section (2) of Section 193 of the Code, the Additional and Assistant Sessions Judges are barred to try Sessions cases directly. The Additional and Assistant Sessions Judges can try only such cases which the Provincial Government or the Sessions Judge of the Division, may be general or special order direct them to try or make over to them for trial. Section 193 of the Code reads as:--
"193. Cognizance of offences by Courts of Session.--(1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction (unless the case has been sent to it under Section 190, sub-section (2).
(2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the Provincial Government by general or special order may direct them to try, or as the Sessions Judge of the Division, by general or special order, may make over to them for trial."
Thus, it is clear that Additional and Assistant Sessions Judges have no power to try cases by themselves without the above mentioned directions of the Provincial Government or making over the cases by the Sessions Judge. The specific bar to try the cases directly by the Additional and Assistant Sessions Judges, created under the above provision clearly demonstrate the intention of legislature that without such direction and making over cases as referred to above, the said Judges cannot try the cases. Under Section 9, of the Code when Additional and Assistant Sessions Judges are appointed by the Provincial Government they are appointed, only to exercise jurisdiction of the Sessions Court in a Sessions Division or more Divisions.
Once the Additional or Assistant Sessions Judge is posted in a Sessions Division, then the bar contained in Section 193 (2) of the Code, will apply to the said Judge for trial of a case or cases, unless the said bar is removed by issuing a direction or making over of a case or cases given/made by the Provincial Government or the Sessions Judge respectively. The said order will authorize only such Judge to try such case or cases, which are made over to him and for that Division only. Thus, even if the Additional or Assistant Sessions Judge is posted in any Sessions Division with the powers to exercise jurisdiction under Section 6(3) of the Code in the Sessions Division, will not by itself give authority to the said officer to try a case or cases of said Division unless an order within the meaning of Section 193(2) of the Code is passed by the competent authority, to remove the bar contained there-under. As such for removal of such bar the order as required under Section 193(2) is must whenever such Judge is posted in a Sessions Division.
The Sessions Judge is authorized to distribute the business to other Additional and Assistant Sessions Judges by making over the cases to them under Section 193, of the Code. Thus, it is the Sessions Judge, the Presiding Officer of the Sessions Court, that is required to try the cases, but for particular case or class of cases, he delegates his powers of trial of the cases to Additional and Assistant Sessions Judges. A such, the Sessions Judge becomes delegator and Additional and Assistant Sessions Judges become delegatee. (Not strictly in real sense). In such a situation, the delegator will remain in the control of the cases, which he made over to his delegatee. But a bar has been created to exercise some of the powers of the delegator in respect of cases in which charge has been framed by the Additional Sessions Judge (delegatee). However, where the Additional Sessions Judge to whom such powers were delegated ceased to exercise jurisdiction in the Sessions Division, the Sessions Judge would then be in a position to exercise all powers. The bar contained in Section 528(1-A), of the Code will be to the extent of the Additional Sessions Judge who had framed the charge in the case and still posted in that division. When the said Additional Sessions Judge is transferred the bar by itself will be removed.
There is procedure for hearing of cases by the Sessions or Additional Sessions Judge. After receipt of the case from the Magistrate, the same is placed before the Presiding Officer (Sessions Judge) of the Sessions Court. The Sessions Judge after taking the cognizance within the meaning of Section 193(1), of the Code sends the case to the office to be entered in the Register of Sessions cases as required by High Court Rules. The office assigns a number to the case and enters it in the said register. Thereafter the Sessions Judge either decides to try the case himself or makes it over to any Additional Sessions Judge posted in the Division to exercise jurisdiction of the Sessions Court. If Sessions Judge makes over the case to Additional Sessions Judge, such entry is made in the Register of Sessions case against number of the said case. The Additional Sessions Judge after receipt of the case starts exercising jurisdiction of Sessions Court in that particular case only. The said Additional Sessions Judge gives no separate number to the said case. The High Court Rules do not provide any separate register for Additional Sessions Judge. The number assigned to the said case by Sessions Court would remain the same as given to it under the Register of Sessions cases kept in the office of Sessions Judge. Thus, the case would remain on the file of Sessions Court, whose Presiding Officer is Sessions Judge even if the case is made over to the Additional Sessions Judge for the simple reason that the said Additional Sessions Judge is required to simply exercise jurisdiction of the Sessions Court in respect of the said case. The case was also simply made over to the Additional Sessions Judge for the trial only. After decision of the case by the Additional Sessions Judge, the required particulars are written in the register kept in the office of Sessions Court. Until the time the said Additional Sessions Judge is posted in the Sessions Division, the Sessions Judge has no power to recall the said case from the said Additional Sessions Judge if charge has been framed by him, as provided by Section 528(1A), of the Code because framing of the charge is first step towards the trial of the case.
Taking the case in hand, it is to be observed that on the strength of the Notification dated 8th November, 1995 issued under Section 9(1), Cr.P.C., Talagang was created as Session Division and at that time Mr. Shaukat Iqbal Sikka, Additional District and Sessions Judge was appointed to be the Judge in Session at Talagang. As such the Magistrate had to forward the case to the Sessions Judge at Talagang and not to the District & Sessions Judge District Headquarters at Chakwal. If the challan has been wrongly sent to the District Headquarters at Chakwal, then the challan has not been legally sent up on the mandate of Section 190(2), Cr.P.C. In the present case the challan was not sent up by the Magistrate on the mandate of Section 190(2) Cr.P.C. to the Sessions Division of Talagang. The District & Sessions Judge, Chakwal had no power to withdraw the case from the Court of Sessions Judge, Talagang, and transfer it to the Court of Mr. Sohail Nasir, Additional Sessions Judge, Chakwal.
For the reasons state above, this writ petition is allowed, the order dated 22.11.2003, passed by the learned Sessions Judge, Chakwal, withdrawing the case F.I.R. No. 50 dated 3.7.2001, P.S. Tamman from the file of Mr. Jawed Mehmood Sindhu, Additional Sessions Judge, Talagang, and transferring the same to Mr. Sohail Nasir, Additional Sessions Judge, Chakwal for disposal, is declared to be without lawful authority and is set aside. The challan shall be submitted to the Magistrate, who, on the mandate of Section 190 Cr.P.C. shall send it to the Court of Session Division (Additional Sessions Judge, Talagang) created under Section 9(1) Cr.P.C.
For the same reasons the criminal revision is also allowed and disposed of.
(A.A.) Revision accepted.
PLJ 2006 Lahore 719 [Multan Bench Multan]
Present: Fazal-e-Miran Chauhan, J.
Mst. SHAZIA KAUSAR--Petitioner
versus
MUHAMMAD AHMED and another--Respondents
W.P. No. 5541 of 2005, decided on 3.10.2005.
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----Ss. 9 & 10--Constitution of Pakistan, Art. 199--Suit for maintenance and recovery of dower--Suit was decreed--Preferred appeal, accepted--Assailed--Non-payment of prompt dower--Entitlement--Appellate Court failed to note essential legal implication for non-payment of dower that wife was under no obligation to live with husband and husband was duty bound to maintain wife during period of separation--Failure of Appellate Court to consider facts of jurisdiction--Impugned order was declared without lawful authority that both appeals were to be deemed pending for fresh decision. [Pp. 720 & 721] A & B
Ch. Muhammad Anwar-ul-Haq, Advocate for Petitioner.
Nemo for Respondent No. 1.
Respondent No. 2 is proforma respondent.
Date of hearing: 3.10.2005.
Order
This judgment shall dispose of W.P. No. 5541 of 2005 filed by the petitioner challenging the judgment dated 10.5.2005, passed by Additional District Judge, Sahiwal (Respondent No. 2).
Briefly, the facts giving rise to the instant writ petition are that the petitioner filed a suit for maintenance titled as Shazia Kausar vs. Muhammad Ahmad" in the Court of Senior Civil Judge, Sahiwal, which was decreed on 18.3.2005 by Judge Family Court, Sahiwal. In her plaint, the petitioner claimed maintenance from 5.5.2003 at the rate of Rs. 10,000/- per month. The suit was contested by Respondent No. 1 and written statement was filed. Judge Family Court framed issues arising out of the divergent pleadings of the parties. Evidence of the parties was recorded. The plaintiff appeared as PW.1 and produced five documents Ex. P.1. to Ex. P.5. Respondent No. 1 failed to produce the evidence, which was closed on 4.3.2005. Ultimately, the suit was decreed on 18.3.2005 and the petitioner was granted maintenance allowance at the rate of Rs. 3000/- per month from the date of institution of the suit till she holds the status of wife of Respondent No. 1. The petitioner has also filed suit for recovery of prompt dower Rs. 15,00,000/- against Respondent No. 1, which was also decreed in favour of the petitioner and against Respondent No. 1 by the same Court.
Respondent No. 1 also filed a suit for restitution of conjugal rights, which was dismissed on 4.3.2005. Respondent No. 1 filed two separate appeals against both the judgments and the petitioner also filed an appeal against the judgment & decree of maintenance for enhancement of rate of maintenance and the period. Both the appeals were heard and decided on 10.5.2005. The appeal filed by the petitioner was dismissed regarding dower and accepted the appeal of Respondent No. 1 filed against him for enhancement of the maintenance by Additional District Judge, Sahiwal through a consolidated judgment dated 10.5.2005.
It is contended by the learned counsel for the petitioner that Respondent No. 2 has failed to appreciate that the parties before him were Muslim and in case of maintenance would be governed by their personal law i.e. Mohammadan Law. Under Section 277 of Mohammedan Law by D.F. Mullah that "The husband is bound to maintain his wife (unless she is too young for matrimonial intercourse, so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him, or is otherwise disobedient, unless the refusal or disobedience is justified by non-payment of prompt dower, or she leaves the husband's house on account of his cruelty." Further contends that Respondent No. 2 failed to consider both the grounds recognized for refusal and disobedience. Also contends that Respondent No. 2 has not considered that non-payment of prompt dower for entitling the petitioner to get maintenance from Respondent No. 1 for the period in which she is living in the house of her parents and not performing her conjugal rights. Respondent No. 2 misread the evidence on record and has also wrongly interpreted the law on the subject.
I have heard learned counsel for the petitioner and perused the record. Admittedly, it is true that wife cannot claim maintenance if she is living separately from her husband without any justification, but it is equally recognized that wife can refuse herself to go to the husband's house and also can live separate from him unless the prompt dower is paid by the husband during the period of such separation, the husband is duty bound to maintain his wife. A reference may be made to Section 48 of Muhammadan Law, which reads as under:--
"In addition to her right to recover the prompt dower by regular suit, the wife may refuse to admit her husband to sexual intercourse, to obey his orders, or even to live in the same house with him, so long as it is unpaid; and this without forfeiting any right to be maintained at his expense, or her right of inheritance as his wife. But it seems to be now settled that a suit for restitution is maintainable in case of refusal after sexual intercourse has once taken place without her free consent, but the decree may be made conditional on payment of the prompt dower."
In the case of Mst. Chanani Begum vs. Muhammad Shafiq and others (1985 MLD 310 Lahore), it has been observed that a wife is not under obligation to live with her husband, who has not paid the prompt dower, yet the husband was duty bound to maintain her. Reliance is placed in this behalf on Tahira's Begum case (PLD 1971 Lah. 866).
For what has been discussed above, it is held that the learned Additional District Judge, Sahiwal while passing the impugned judgment dated 10.5.2005 has not applied the correct law on the subject and had failed to consider the finding of the trial Court for not maintaining the petitioner during the period of separation which had not been done, which means that he did not exercise the jurisdiction properly vested in him and committed illegality. Consequently, the impugned judgment dated 10.5.2005 is declared to be without lawful authority, with the result that the two appeals of the petitioner would be deemed to be still pending before Additional District Judge Sahiwal, who shall make fresh decision in the light of above observations.
For the foregoing reasons, this Writ Petition is disposed of.
(R.A.) Petition disposed of.
PLJ 2006 Lahore 721
Present: Ali Nawaz Chowhan, J.
MUHAMMAD SHAHBAZ--Petitioner
versus
SHO etc.--Respondents
W.P. No. 14914 of 2003, heard on 24.2.2006.
(i) Constitution of Pakistan, 1973--
----Art. 199--Quashing of FIR--Punjab Prevention of Gambling Ordinance (VII of 1978), S. 5--Pakistan Penal Code (XLV of 1860), S. 216--Contradictions of story--No proclaimed offender was arrested and, therefore, such gave rise to a presumption that intention of police was otherwise and was not for apprehending proclaimed offender--Thus, provisions of law cannot be allowed to get frustrated on basis of lame excuses. As action of police was bad and illegal at its very genesis, FIR has no status in law and it is; therefore, quashed. [P. 724] D
(ii) Punjab Prevention of Gambling Ordinance, 1978 (VII of 1978)--
----Ss. 5 & 8--Pakistan Penal Code, (XLV of 1860), S. 216--Constitution of Pakistan, 1973, Art. 14--Protection of privacy of a private place--Fundamental right--Question of--Precise question before High Court was whether offence was constituted under Gambling Ordinance was within purview of raiding party upon discovery that instead of proclaimed offenders being present in that house some people were gambling there--Police ingresses in a house for catching hold of proclaimed offenders about to escape or was creating a threat that could legally covered while taking cognizance of a matter which was forbidden for police until a cognizance is taken with intervention of a Magistrate, who cannot even otherwise delegate those powers to police as per Section 8 (amended of new Ordinance). [Pp. 723 & 724] A & C
PLD 2002 Peshawar 34; PLD 2003 Pesh. 77; W.P. No. 2664 of 2004; W.P. No. 7100 of 2004, ref.
(iii) Police Order, 2002--
----S. 4(1)--Constitution of Pakistan, 1973, Art. 14--Privacy of private place--Fundamental right--According to S. 4(1) of Chapter II of Police Order, 2002, police is authorized to enter and inspect without warrant on reliable information in any public place mentioned in Police Order, 2002--But such authorization of law is not meant for a private premises or a house. [P. 724] B
Mr. Saif-ul-Malook, Advocate for Petitioner.
Ch. Khurshid Anwar Bhinder, Addl. A.G. for Respondent.
Date of hearing : 24.2.2006.
Judgment
The matter pertains to case FIR No. 282 of 2003 dated 15.9.2003, registered under Section 5 of the Punjab Prevention of Gambling Ordinance (No. VII) of 1978 read with Section 216 P.P.C. on the complaint of Mubashar Ahmed, S.I. Police Station Gowal Mandi, Lahore.
Precisely, the story is that after having learnt about the presence of the proclaimed offenders at a house in a street within his jurisdiction, the Investigating Officer formed a raiding party for arrest of those proclaimed offenders and immediately proceeded towards that place because he apprehended that upon knowledge the proclaimed offenders will make good their escape. He then entered that house and found a different scenario attracting the offence under which he registered the FIR under reference.
This Court had the opportunity of hearing Mr. Saif-ul-Malook, learned counsel for the petitioner as well as Mr. Khurshid Anwar Bhinder, learned Additional Advocate-General at length on this subject.
According to the learned counsel for the petitioner, there is no statement in the FIR showing that any proclaimed offender was arrested.
The precise question before this Court is whether the offence as is constituted under Gambling Ordinance was within the purview of the raiding party upon discovery that instead of the proclaimed offenders being present in that house some people were gambling there. The latest law on the subject is Section 8 of the Punjab Prevention of Gambling Ordinance, (No. VII) of 1978 which reads as follows:--
Power to enter and search. If a District Magistrate, Sub-Divisional Magistrate, Magistrate of the First Class upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used as a common gaming-house, or that an offence under Section 6 is being committed at or in any place, he may;
(a) enter such place at any time with such assistance as he may require and using such force as may be necessary.
Provided that, if such place is in the actual occupancy of a woman who according to custom, does not appear in public, the officer so entering such place shall give notice to her that she is at liberty to withdraw and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the place;
(b) search such place for any instruments of gaming kept or concealed therein, and also the person of all those who are found in that place, except the women;
(c) seize and take possession of gaming moneys and securities for money and articles of value reasonably suspected to have been used or intended to be used for the purpose of gaining which are found therein or upon any person found therein; and
(d) take into custody all persons, except women, found in that place, whether or not then actually gaming.
Learned counsel for the petitioner has argued that in Section 8 of the West Pakistan Prevention of Gambling Ordinance (I of 1961), a permission was given to the police to raid at a particular place upon obtaining warrant from a Magistrate who also authorized them to raid. Later on, the law has undergone a change by which a Magistrate cannot delegate these powers to the police, but can only proceed to raid a place himself upon sufficient information pertaining to the offence.
Learned counsel for the petitioner has also placed reliance on the following case law:--
Qayyum Nawaz v. The State (PLD 2002 Peshawar 34);
Siddique Ullah v. The State (PLD 2003 Peshawar 77);
Tariq Mahmood But v. D.P.O. etc. (W.P. No. 2664 of 2004);
Muhammad Iqbal v. S.S.P. Operation etc. (W.P. No. 7100 of 2004).
"4(1) enter and inspect without a warrant on reliable information any public place, shop or gaming-house where alcoholic drinks or narcotics are sold or weapons are illegally stored and other public places of resort of loose and disorderly characters."
But, of course, this authorization of the law is not meant for a private premises or a house.
It is further stated that the very reasons for amendment of the law was to stop invasion of the privacy under one excuse or the other or the type of the excuse which is usually advanced that the police was under stress to capture proclaimed offender and, therefore, their entry into a private premises was justified without warrants.
In case, the police ingresses in a house for catching hold of proclaimed offenders about to escape or was creating a threat that may get legally covered. But then police cannot act beyond that while taking cognizance of a matter which is forbidden for police until a cognizance is taken with intervention of a Magistrate, who cannot even otherwise delegate those powers to police as per Section 8 (amended of the new Ordinance).
One wonders whether the police could have proceeded as they did in search of proclaimed offenders without being in possession of the search warrant. The Inspector General of Police, Punjab, has to ensure that the police is properly policed and such like acts of highhandedness are not allowed to be repeated.
Anyway, the story of the police that they went to apprehend proclaimed offender is even otherwise belied by the fact that no proclaimed offender was arrested and, therefore, this gave rise to a presumption that the intention of the police was otherwise and was not for apprehending the proclaimed offenders. Thus, the provisions of the law cannot be allowed to get frustrated on basis of lame excuses. As the action of the police was bad and illegal at its very genesis, the FIR has no status in law and it is; therefore, quashed.
(M.A.) FIR quashed.
PLJ 2006 Lahore 725 (DB)
Present: Ali Nawaz Chowhan and Umar Ata Bandial, JJ.
Sardar MUHAMMAD NASEEM--Petitioner
versus
JUDGE, ACCOUNTABILITY COURT, LAHORE--Respondent
W.P. No. 13901 of 2005, decided on 19.1.2006.
(i) Criminal Trial--
----Accused is not only entitled to a fair trial but also to a proper and humane treatment--A proper treatment envisages an honest investigation, an honest preparation of record and charge-sheet and a trial without delay. [P. 727] D
PLD 2003 SC 668; PLD 1962 SC 495; 2000 YLR 407; 2004 SCMR 660 ref.
(ii) Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Constitution of Pakistan, 1973, Art. 199--National Accountability Bureau Ordinance, (XVIII of 1999), S. 16(a)--Constitutional jurisdiction--Prayer for release on bail--Petitioner's earlier pre-arrest bail was confirmed by Special Judge, Anti-Corruption--Petitioner was again taken into custody by NAB Authorities and during his incarceration of 5 years there has been as many as 222 adjournments out of which 141 were sought by prosecution itself--Trial still not completed--Keeping in view history of case, High Court expected that trial would take more time--Defence has yet to produce its witnesses and thus petitioner will suffer further incarceration--Petitioner was released on ad-interim post-arrest bail in circumstances. [P. 728] G
(iii) Interpretation of Justice--
----There is truth in proposition that justice delayed is justice denied. [P. 727] B
(iv) National Accountability Bureau Ordinance (XVIII of 1999)--
----S. 16(a)--Constitution of Pakistan, 1973, Art. 199--Constitutional jurisdiction--Statutory period of 30 days for hearing and trial of a case--Violation thereof--Effect--Offence might be of a very serious nature calling for a prolonged trial but High Court did not expect such to be an unending exercise--Object of criminal justice is to confront a criminal with charge as early and precisely as possible--In cases which end in acquittal of an accused, a question often arises as to who will be responsible for his agony, pain and hardship due to prolonged period of his incarceration and delayed trial--Whereas, in case he remains on bail he can still be made to suffer an imprisonment after trial--State is under an obligation to ensure that its Courts were well-equipped with required manpower for handling trials with dispatch--Likewise, prosecutors are required to be equipped with required skills essential for establishing a foolproof case before a Court without much cost of time--Section 16(a) of National Accountability Ordinance, 1999, has been enacted with such a rationale--It has laid a period of 30 days for disposing of a trial. [P. 727] A, C, E & F
Mr. A.K. Dogar, Advocate for Petitioner.
Mr. M. Asad Manzoor Butt, Advocate for NAB.
Date of hearing : 19.1.2006.
Order
Ali Nawaz Chowhan, J.--Sardar Muhammad Naseem, petitioner is asking for his release on bail through this Constitutional petition. He is involved in Reference No. 24 of 2001 and is in incarceration since January, 2001. There is also a history before this arrest. He was released on bail before arrest by the Special Judge, Anti Corruption, Lahore way back in 1995, later his bail was confirmed and according to the learned counsel this happened because for several months the learned Special Judge, Anti Corruption had been demanding from the prosecution to produce such tangible incriminating evidence which may deny him the benefit of bail.
Later when the petitioner was taken into custody by NAB authorities his trial proceeded and that too has not been accomplished. According to the learned counsel for the petitioner in above five years which have elapsed there has been as many as 222 adjournments out of which 141 were sought by the prosecution itself.
The main allegation against the petitioner is that while working in the DC Office he became party to a fraud and further allegation against him is that he had been endorsing some bogus vouchers in consultation with his higher officers which pertained to refund of stamp papers, etc.
According to the learned counsel for the petitioner whereas this is a classical case of delay at the end of NAB and the very fact that so many adjournments had been granted gives arise to the inference that the prosecution is still looking in askance for incriminating evidence for getting the conviction of the petitioner otherwise, this delay which is inordinate and exceptional would not have taken place.
Learned counsel for the petitioner further went on to say that the delay is absolutely contrary to the natural rule of justice, fairness and the rationale contemplated under Section 16(a) of the National Accountability Ordinance, 1999 which requires the Court to accomplish the trial within the prescribed time which according to the section itself was 30-days. It is said that when the prosecution was itself violating the Law a citizen has to be protected. It may be pointed out that previously vide orders of this Court dated 14.12.2005, we had observed as follows:--
"2. Learned counsel for the petitioner has pointed out that 222 adjournments have taken place in this case which is pending since about five years and the completion of the trial is nowhere in sight. Learned counsel is of the view that with this speed the matter may not be over for another two years. That after the prosecution completes its evidence the defence will also have to produce the evidence.
The trial did not end and so we decided to hear this petition after our orders of 17.1.2006.
Learned counsel for NAB while explaining the position from his side, stated that the case against the petitioner was of a very serious nature and certainly this will end in his conviction. According to him, the petitioner also was a contributory factor against adjournments.
The offence may be of a very serious nature calling for a prolonged trial but we do not expect this to be an unending exercise.
The object of criminal justice is to confront a criminal with the charge as early and precisely as possible while (sic) verdict through a prolonged incarceration. There is truth in the proposition that justice delayed is justice denied.
In cases which end in the acquittal of an accused, a question often arises as to who will be responsible for his agony, pain and hardship due to the prolonged period of his incarceration and the delayed trial. Whereas, in case he remains on bail he can still be made to suffer an imprisonment after the trial.
An accused is not only entitled to a fair trial but also to a proper and humane treatment. A proper treatment envisages an honest investigation, an honest preparation of the record and the charge-sheet and a trial without delay.
A State is under an obligation to ensure that its Courts were well equipped with the required manpower for handling the trials with dispatch. Likewise, the prosecutors are required to be equipped with the required skills essential for establishing a foolproof case before a Court without much cost of time.
Section 16(a) of the National Accountability Ordinance, 1999, has been enacted with such a rationale. It has laid a period of 30 days for disposing of a trial.
A question for consideration of the concerned Authorities will be whether the prosecutors working for NAB and its different forums were respecting this important provision of the law or not and were skilled for meeting the requirements of law? This case, however, does not give a commendable impression about them.
It is now for the Authorities to take curative measures so that the intention and the spirit of law is respected in the matter of the tenure of a trial otherwise, as we have seen in case of Anti-Corruption Laws, the NAB law will also lose its purpose while defeating the expectations and aspirations attached to the law. The entire desire for elimination of corruption and corrupt practices through expeditious trails will then be a far of cry and ultimately the public confidence will get totally shattered. Who will then bridge the credibility gap?
If any case law is required on what has been stated above, reference may be made to the following cases: (1) Abdul Aziz Khan Niazi vs. The State through Chairman NAB, Islamabad (PLD 2003 SC 668); (2) Khalid Saigol vs. The State (PLD 1962 SC 495); (3) Ahmad Yar vs. State (2000 YLR 407) and (4) Saeed Ullah Somoroo vs. State through NAB (2004 SCMR 660).
A copy of the order of this typical case in hand be sent to the Chairman NAB by name by the Deputy Registrar (Judicial) of this Court in a sealed cover marking it as `confidential' for such necessary action as be needed in the national interest.
Coming back to this case and while keeping in view its history, it is expected that the trial will take more time. The defence has as yet to produce its witnesses and thus the petitioner will suffer further incarceration. We are, therefore, releasing the petitioner on ad-interim post arrest bail provided he furnishes bail bond in the sum of rupees one million along with a respectable surety of Lahore in the same amount to the satisfaction of the learned trial Court.
If released on bail, the petitioner shall keep appearing on every date fixed by this Court and the Court below, otherwise, this order may be recalled. The trial Court shall also take into custody his passport before he is released on bail.
(M.A.) Petition allowed.
PLJ 2006 Lahore 728
Present: Syed Hamid Ali Shah, J.
ZULFIQAR AHMAD BUTT and another--Petitioners
versus
ASAD DAR and 5 others--Respondents
Civil Revision No. 2609 of 2005, decided on 1.3.2006.
(i) Administration of Justice--
----Justice should not be denied by resorting to strict technical approach, for, law leans in favour of adjudication on merit and abhors decisions on technicalities. [Pp. 731 & 732] C
1997 MLD 1910, ref.
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XLIII, R. 3--O. XXXIX, Rr. 1 & 2-- Stay application was dismissed by trial Court--Appeal also failed having incompetent for non-compliance of mandatory requirements--Assailed--A notice before presenting appeal to respondent or his Advocate with a copy of memorandum/grounds of appeal and copy of order appealed against, is a mandatory requirement--Appellant is required to file acknowledgment due, postal or other receipt with memorandum of appeal for record of Appellate Court--Non-compliance of such requirement entails penal consequences and no appeal can be entertained without issuance of requisite notice--No cavil with proposition that an appeal against an impugned order during pendency of suit, without complying Rule 3 ibid cannot be entertained--Mandatory provisions of law are to be applied with its force and vigor. [P. 731] A & B
PLJ 1984 SC 1 rel. 1990 MLD 1871 & 1990 CLC 929.
(iii) Civil Procedure Code, 1908 (V of 1908)--
----O. XLIII, R. 3--Dismissal of appeal on non-compliance of O. XLIII, R. 3, CPC--Remedy--Dismissal of appeal on non-compliance of O. XLIII, R. 3 does not stop appellant from seeking relief on merits as applicant subsequent to dismissal of appeal under O. XLIII, R. 3 CPC can file fresh appeal after complying with provisions of Rule 3 ibid. [P. 732] D
PLD 1988 Quetta 9, ref.
(iv) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil Revision--O. XXXIX, Rr. 1 & 2--Injunction, refusal to grant--Appeal filed but mandatory requirement of Rule 3 was not complied with--Held: No illegality or infirmity in impugned order which, as such, did not call for any interference in revisional jurisdiction--Revision petition had no force and was dismissed accordingly. [P. 732] E
M/s Rao Tajammal Abbas and Manzoor Qadir, Advocates for Petitioners.
Mr. Mansoor-ur-Rehman Khan Afridi, Advocate for Respondent No. 1.
Date of hearing : 13.2.2006.
Judgment
Facts of the case in a narrow compass are that the petitioner instituted a suit for declaration with permanent injunction against the respondent to the effect that the act of respondents, qua the installation of mobile phone booster/tower and huge generator in purely residential area is unlawful and illegal. The petitioner moved an application under Order XXXIX Rules 1 and 2 CPC with his suit for the grant of mandatory injunction, seeking a restraint order regarding installation of mobile phone booster. Respondent No. 1 contested the suit by filing written statement wherein the assertions made in the plaint were controverted. Learned trial Court dismissed the application vide order dated 1.11.2005. Petitioner assailed the order in appeal and the learned Appellate Court dismissed the appeal being incompetent for non-compliance of mandatory requirements of Rule 3 of Order XLIII CPC. Hence this petition.
Learned counsel for the petitioner has contended that a due notice was served upon the contesting respondents. Although neither the affidavit nor receipt thereof were filed at the time of filing of the appeal. The unserved respondents including LDA who did not appear before the learned trial Court were not served with the notices. Learned counsel then submitted that the respondent entered appearance and the condition of statutory notice stands waived on appearance of the respondents. Learned counsel has referred to the cases of "M/s Nasir Metal Crafts Pvt. Ltd. through Chief Executive versus Zasha through Chief Executive and 2 others" (1997 MLD 1910) to contend that when parties to appeal had appeared before the Court and the appeal had gone through the stage of admission, the question of lack of service of notice in terms of Order XLIII Rule 3 CPC would pale into insignificance.
Learned counsel for the respondents, on the other hand, has submitted that while using word "shall" in Rule 3 the legislature intended to make the requirement of notice mandatory and its non-compliance entails the penal consequences i.e. dismissal of appeal. Learned counsel in support of this contention has referred to the case of "Mrs. Dino Manekji Chinoy and others versus Muhammad Muteen" (PLJ 1984 SC 1). Learned counsel has submitted that the Hon'ble Supreme Court has laid down that issuance of notice to respondent before presentation of appeal against order passed during the pendency of suit is obligatory and no appeal is liable to be entertained without the issuance of notice. The principle of law enunciated by the Hon'ble Supreme Court in the above referred case is binding on all the Courts by virtue of Article 189 of the Constitution of Islamic Republic of Pakistan. Learned counsel then drew attention to order dated 14.11.2005 passed by learned Additional District Judge, Lahore where the Court adjourned the appeal for 15.11.2005 and subsequently incorporated another order on the same day that photo copy of the notice has been filed by the appellants. He added that perusal of the order sufficiently proves that photo copy of the notice was not filed at the time of filing of the appeal.
Heard learned counsel for the parties and perused the record.
The perusal of Rule 3 of Order XLIII reveals that a notice before presenting the appeal to the respondent or his Advocate with a copy of the memorandum/grounds of the appeal and copy of the order appealed against, is a mandatory requirement. The appellant is required to file the acknowledgment due, postal or other receipt with the memorandum of appeal for the record of the learned Appellate Court. Non-compliance of this requirement entails penal consequences and no appeal can be entertained without issuance of the requisite notice. The Hon'ble Supreme Court of Pakistan in the case of "Mrs Dino Manekji Chinoy and others versus Muhammad Muteen" (supra) has held as under:--
"Hence we think that issuance of a notice to the respondent before presentation of an appeal preferred against an order passed during the pendency of a suit is obligatory and no appeal can be entertained without issuance of the requisite notice. It would therefore, be entirely appropriate, with a view to ensuring that the provisions of this beneficial rule are given effect to in letter & spirit that the officers responsible for inter alia receiving and scrutinizing appeals preferred against the interlocutory orders made during the pendency of a suit of all the Courts concerned, do require the appellant or his Advocate to submit, alongwith the order documents required for filing an appeal, an affidavit that he has given notice of such appeal to the respondent or his Advocate by delivering him a copy of the memorandum of grounds of appeal along with a copy of the order appealed against and shall also attach with the said affidavit a copy of the acknowledgement receipt obtained from the respondent or his Advocate, as the case may be. Any appeal, which is not accompanied by such an affidavit and a copy of the acknowledgement receipt should not be entertained."
The above dictum of law laid down by the Hon'ble Supreme Court was subsequently followed in the cases of "Ghulam Rabbani versus Abdul Qayyum and 2 others" (1990 MLD 1871) and "Noor Muhammad vs Ch. Liaqat Ali Khan" (1990 CLC 929). Thus there is no cavil with the proposition that an appeal against an impugned order during the pendency of suit, without complying Rule 3 ibid cannot be entertained. The mandatory provisions of law are to be applied with its force and vigor.
Learned counsel for the petitioner tried to wriggle out of the situation by taking the stance that where respondent has entered appearance or the appeal has gone through the stage of admission, the question of lack of service of notice becomes insignificant. This argument, however, will not come to his rescue as in the instant case the appeal was not admitted to regular hearing and additionally all the respondents have not appeared before the Court at the limine stage. Respondents Nos. 3 to 5 did not appear in the lower appellate Court. The case law referred by the learned counsel for the petitioner will not be helpful in the circumstances. I do not agree with the arguments of learned counsel for the petitioner that justice should not be denied by resorting to the strict technical approach, for, law leans in favour of adjudication on merit and abhors the decisions on technicalities. Dismissal of appeal on non-compliance of Order XLIII Rule 3 does not stop the appellant from seeking relief on merits as the applicant subsequent to the dismissal of appeal under Order XLIII Rule 3 CPC can file fresh appeal after complying with the provisions of Rule 3 ibid. Fresh appeal is no bar, reference in this respect can be made to the case of "Haji Muhammad Naeem and another versus Malik Ghulam Nabi and 5 others" (PLD 1988 Queta 9).
For the foregoing, I do not find any illegality or infirmity in the impugned order which, as such, does not call for any interference in the revisional jurisdiction. This revision petition has no force and is dismissed accordingly. Parties to bear their own costs.
(M.A.) Petition dismissed.
PLJ 2006 Lahore 732
Present: Ali Nawaz Chowhan, J.
AHMAD FAROOQ KHAN and another--Petitioners
versus
ABDALIAN CO-OPERATIVE HOUSING SOCIETY and another--Respondent
Civil Revision Nos. 821 and 820 of 1999, heard on 24.2.2006.
Land Acquisition Act, 1894 (I of 1894)--
----S. 6--Martial Law Instructions--Acquisition of Land for Co-operative Housing Society--Non compliance of compensation policy of 30% land for exception to private owner--Validity--Held--When compulsory acquisitions are made, it ought to be for welfare of people and the welfare of the affectees should also be kept in mind--Governments are also supposed to follow policies based on fairness & it has to avoid credibility gaps--Governments cannot be allowed to acquire compulsorily the property of someone and then to dispose it of the way it likes--When a Government exercises discretions, there are exercisable according to the policies, otherwise it will mislead the public which has to be checked by Courts--Judgment of Civil Court upheld. [P. 739] A, B & C
2003 YLR 1032 & PLD 1983 Lah. 552, ref.
Mian Hamid Khan, Advocate for Petitioners.
Mr. Abid Aziz, Advocate for Respondents.
Date of hearing : 24.2.2006.
Judgment
This judgment shall dispose of the following Civil Revisions Bearing Nos. 821/1999 and 820/1999, being connected matters and involving similar question.
These arise because of findings which are at variance. The learned Civil Judge, Lahore, vide his judgment dated 16.6.1996 decreed the suit in favour of the plaintiff/petitioner. The judgment of the learned Civil Judge was reversed by the Court of learned Additional District Judge, Lahore, vide his judgment dated 15.10.1998 and hence these civil revisions.
Precisely the facts are as follows: This was a suit for declaration and consequential relief through mandatory injunction. According to the plaintiff, he was owner of land located in Khasra No. 7803 situated at Mauza Niaz Baig, Tehsil and District Lahore, which he had purchased through a sale-deed in the year 1979 and this became the subject matter of the consolidation proceedings and the Khasra number was altered to 12504 through a Mutation No. 12035 which was sanctioned on 30.12.1979.
Later on, this land was acquired by the Lahore Development Authority for its housing scheme known as Muhammad Ali Johar Town Scheme. A Notification of the Punjab Government dated 28.10.1982 declared the scheme as such.
A policy was laid for compensating the owners and according to that policy 30% of the acquired land was to be exempted to a private owner.
Later on, it transpired that this Khasra number had been deleted from the said Muhammad Ali Johar Scheme. Subsequently, this land was acquired for the Abdalians' Co-operative Housing Society and was included in the area measuring 968 Kanals' land for this purpose at the Hanjarwal and Niaz Baig Mauzas of Lahore through a Notification Bearing No. LAC/17987 dated 6.12.1982 published in Punjab Gazette of 6.12.1982.
This Society entered into an agreement with the Government of Punjab and in the said agreement undertook to abide by the rules and regulations framed by the Government in respect of acquisition of the land.
This agreement was also published in the Punjab Gazette of 8.10.1985 etc. and the Collector was authorized to take over possession of the land under Section 6 of the Land Acquisition Act, 1894.
It is said that the policy with respect to acquisition of land from private owners having been laid by the Government of Punjab, was also extendable to the present acquisition. The plaintiff, therefore, asked for the exemption allowed under that policy and served them with a notice. But no exemption was granted and, therefore, a suit was filed for declaration and injunction.
The case of the defendant side was that the property had not been acquired for an Official Development Agency or for public purpose. The said exemption policy was not extendable to the present acquisition being a private and not a Public Housing Scheme.
The Notifications with respect to the acquisition of land were never disputed but it was only stated that the Martial Law Instruction No. 23 of 17.8.1979 which laid this policy of exemption of 30% to the land owners, was not applicable to the present case.
The learned trial Court had framed four issues on the subject and came to the conclusion on the basis of the evidence recorded that the relief sought was justified and it decreed the suit in favour of the plaintiff and against the defendant.
The learned Additional District Judge in appeal was of a different view. In Paragraph Nos. 10 to 13 of the judgment, the view taken by the learned Additional District Judge was that the agreement (Ex. P-13) inter-se the owners and the Government does not lay a stipulation for the exemption being asked. He referred to an excerpt from Ex. P-13 which reads as follows:-
"That the society shall abide by the rules and regulations framed by the Government or any other authority as may be legally applicable."
And in Paragraph No. 13 he concluded his arguments by saying:--
"This clause, therefore, does not contain any condition binding the appellant to grant exemption of residential plots to the extent of 30% to the owners of land whose land is acquired. It requires the applicant only to abide by rules and regulations issued by the Government or any authority in this regard. In this context reliance was made on Martial Law Instruction No. 23."
"12. In future schemes all owners will be exempted 30% of the land acquired from them in the form of developed plots, on payment of development charges only unless the land acquired is less than 10 Marlas. This exemption policy will also apply to such on going schemes in which possession of land had not been taken over the acquiring agencies before 17th August, 1977, but will not apply to the schemes including Faisal Town, Model Town Extension, Band Road, Allama Iqbal Scheme for which exemption policy have already been announced or finalized."
did not bring within its ambit the private schemes and was applicable only to the schemes as envisaged in Paragraphs (a) to (d) of Paragraph No. 1. It was his view that the learned trial Court had misread the instructions.
In Paragraph 17 of the judgment, however, the learned Additional District Judge referred to Ex. P-11 which reflects an offer to the land owners to contact the Secretary of the Society for exemption purposes. But he concludes by stating that this offer was never meant to be so serious as to oblige the Secretary to grant the exemption.
It is the case of the petitioner before this Court that the learned Additional District Judge fell in error in holding the views aforementioned and that these views were not based on the factual position.
A reference has been made to an advertisement which has been published as a general notice by the Abdalians' Co-operative Housing Society Ltd., in a newspaper and this is Ex. P-11 on the file of Writ Petition No. 821/1999 at page 103. The relevant excerpt from which reads as follows:-
"Some of the land owners have already approached the Society for allotment of exempted plots equivalent to 30 per cent of their land holdings. The land owners interested in exempted plots may immediately contact the Secretary of the Society at the following address along with ownership documents:........"
"... ... ... is required to be taken by the Abdalians' Co-operative Housing Society Limited, Lahore, which has been declared as Official Development Agency for public purpose for the construction of residential colony for its members at Niaz Baig/Hanjarwal, Tehsil/City Lahore."
"An whereas, the Government has required the Society under the provisions of Sections 41 & 42 of the Act to enter into agreement with the Government hereinafter contained."
It is, therefore, on the basis of this material contended that as the 30% land was exempted for the land owners by the Society admittedly and a notice to that effect was also given, the petitioner was allowed to take benefit of the exemption if he did not choose to take the compensation as determined by the award of the Land Acquisition Collector.
The learned counsel appearing on behalf of the respondent side while referring to the following case law: (1) PLD 1983 Lahore 552, 2003 YLR 1035 and also a Writ Petition decided by a Bench of this Court on 16.11.2001, contended that the Abdalians' Co-operative Housing Society Ltd. has already been declared by a learned Single Bench of this Court to be a society acquiring land for private purposes and not for public purposes. It is, therefore, stated that as the exemption scheme as it then was related only to the society where the land was acquired for public purposes, this will come out of the ambit of the policy of the relevant time. That merely because some persons were offered exempted plots instead of the price, it would not have a binding effect for following the same policy for others.
In the case of Abdalians' Co-operative Housing Society Ltd. vs. Muhammad Bilal Anwar (2003 YLR 1032), the learned Single Bench of this Court in a Civil Revision had observed as follows:--
"3. I have gone through the copies of the record appended with this Civil Revision, with the assistance of the learned counsel for the parties. Exh. D-1 is the award. According to this document 733 Kanals, 3 Marlas of land was notified for acquisition under Section 4 of the Land Acquisition Act, 1894 which notification was published in the official Gazette on 8.8.1985. Provisions of Section 17(4) of the said Act were invoked. After issuance of notification under Section 6 proceedings commenced. A total sum of Rs. 91,64,375 was assessed as compensation as also 25% compulsory acquisition charges. This amount was deposited and possession was delivered vide Exh. D-2. Thus the land came to vest in the petitioner subject to the provisions of the said Land Acquisition Act, 1894. Now the respondents demanded that a plot be allocated to him from the said land admittedly vested in the petitioner. Now an owner of a land cannot be divested of the same otherwise than in accordance with law. Both the learned Courts have virtually conceded that there is no legal provision obliging the petitioner to allocate the land, as claimed by the respondent, to him. However, both the learned Courts below have relied upon Exhs. P-4 and P-5 in support of their respective judgments. There are letters issued by the petitioner to some of the landowners asking them that if they wished to negotiate with the petitioner for exemption of plot equal of 30% of the holding they may enter into an agreement with the petitioner. Now to my mind in case the petitioner had agreed to exempt the plots after negotiations with some landowners, the same does not at all mean that they were under a legal obligation to allot the land to Respondent No. 1 as well. Both the learned Courts below have also acted under the impression that the Rules and Regulations of the LDA would be binding upon the petitioner in the matter of acquisition of the said land. It may be stated that the provision for 30% exemption was contained in Martial Law Instruction No. 23 issued on 17.8.1977. Para 12 of the said MLI provided that 30% of the acquired land is to be exempted in favour of the landowners. This MLI stood withdrawn upon lifting of the Martial Law in the year 1985. This Court in the case of Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. (PLD 1983 Lahore 552) has held that the said provisions would not at all be applicable to acquisition of land by a Housing Society as the petitioner is.
For all that has been discussed above I do agree with the learned counsel for the petitioner that the impugned judgments and decrees have been passed without lawful authority and cannot be sustained. This Civil Revision accordingly is allowed. Both the impugned judgments and decrees are set aside and the suit filed by Respondent No. 1 is dismissed without any orders as to costs."
In rebuttal, the learned counsel for the petitioner stated that the decision in the case of the Abdalians' Co-operative Housing Society Ltd. (ibid), would not be applicable in the present case for inter-alia the following reasons: That in that case, the learned Judge was not provided with proper assistance inasmuch as that all the documents which have been now placed before this Court were not available to the said learned Judge, especially the agreement under Section 41/42 (Ex P13), the notice (Ex. P-11 and the statement of the Estate Officer (DW-1).
The learned counsel once more placed reliance on the Notification under Section 6 of the Land Acquisition Act (Ex. P-12) and states that the purpose is made absolutely clear for which the acquisition is to be made and the Notification being published in the Official Gazette was meant for public notice and information and the public understood the purpose as was given in the notice and now ascribing a different intention to the scheme itself contrary to what was said in the Notification under Section 6, will be against the public policy.
Learned counsel went on to further state that the case of Dr. Muhammad Nasim Javed vs. Lahore Cantonment Housing Society Ltd. and others (PLD 1983 Lahore 552), will also not be attracted because it pertains to a different set of circumstances quite distinct and separate from the facts and circumstances of this particular case. Nevertheless, the learned counsel stated that in that judgment as well, the apex Court has given a verdict stating that "public purpose does not cease to be so simply because incidental benefit will inure to private individuals".
Besides what has been stated by the learned counsel for the petitioner and keeping in view the public notice already given and the intention of the Collector referred to in the notice under Section 6 of the Land Acquisition Act and also the notice given by the Abdalians' Cooperative Housing Society Ltd. itself attract the principle of estoppel in pais.
Of course, the Martial Law Instruction No. 23 was mant for acquisition of lands for Government societies but this was the policy during the said period which was being followed and we find that certain steps were admittedly taken by the society and by the Punjab Government in providing such a benefit and this is clear from the Notification under Section 6, the advertisement given and the statement of the Estate Officer although as is stated by the learned counsel for the respondent's side, that no specific case has been mentioned where this exemption may have been allowed. But we find that DW-1 was also not re-examined by the respondent's side for any further elucidation or clarification.
The case in hand, therefore, has, in evidence, facts which were not in evidence before another learned Single Bench of this Court and in that eventuality this Court has to give its decision on the basis of what is available on the file and in that connection, I may have to respectfully differ with the dictum laid by the said learned Single Bench of this Court because obviously its the facts before a Court which build a case one way or the other and we have to see what is before us at the relevant time.
Really the problem is with respect to compensation. The compensation can be given in accordance with the award which is later challengeable under Section 18 of the Land Acquisition Act as a reference or the compensation can be given through exempting the 30% of land within a particular scheme.
When compulsory acquisitions are made by the Government, such acquisitions ought to be firstly for the welfare of the people and secondly Government should also keep in mind the welfare of the affectees. The Governments are also supposed to follow policies based on fairness and it has to avoid credibility gaps. When Government takes a stand as we have seen here in the case of Notification under Section 6 of the Land Acquisition Act then withdrawing from that stand or taking aberration later on, would certainly amount to widening the credibility gap between Government and public.
The Secretary of the Government in this case, it is said, did invite people to appear before him pursuant to the offer made in the public notice given by the Society itself. The allegation is that in some cases the relief was given and in some not. Which means that the discretion in respect of some was followed in one way and in respect of others it was followed in a different way. Can a Government be allowed to acquire compulsorily the property of someone and then to dispose it of the way it likes. When Government exercises discretions, these are exercisable according to the policies laid and if the discretions are not properly exercised and used then these discretions, I am sorry to say, mislead the public and this has to be checked by Courts.
In case the Government thinks that as a matter of fact the land was actually meant for a private scheme and what was stated in the Notification under Section 6 of the Land Acquisition Act was on account of some inadvertence or mistake, it always has the choice of restoring back the land to the owners and cancelling the agreement instead of giving different meanings at different times to definitions of words relating to private ownership and property.
This Court, therefore, feels that the decision of the learned Additional District Judge, Lahore, is not based on correct consideration nor on correct appreciation of law and, therefore, it is set aside and subject to the observations which are made above, the decision of the learned Civil Judge is upheld.
(J.R.) Revision accepted.
PLJ 2006 Lahore 740 [Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
Mst. ZOHRA BIBI--Petitioner
versus
SUPERINTENDENT DAR-UL-AMAN MULTAN and another--Respondents
W.P. No. 4940 of 2005, decided on 11.10.2005.
Constitution of Pakistan, 1973--
----Arts. 10, 35 & 199--Petitioner's confinement in Dar-ul-Aman--Petition for release of petitioner from Dar-ul-Aman and setting her at liberty--Petitioner admittedly in sui-juris, thus, she had inalienable right to contract marriage with person of her own choice--Petitioner admitted her marriage with person claiming to be her husband and strongly deniedher previous marriage with a person claimed to be her husband by her father--S.H.O. of the area under direction of High Court made inquiry about her previous marriage which fact was not proved as per report of S.H.O.--Petitioner being sui-juris cannot be ordered to be kept in Dar-ul-Aman for in definite period, which is even otherwise violative of Art. 10 of the Constitution--Right of marriage is also Constitutionally protected under Art. 35 of the Constitution--Perosn claiming to be petitioner's first husband was directed to get verdict of genuineness of his Nikah with petitioner from Judge Family Court, if so advised--S.H.O. presented in Court was directed to ensure that no illegal harassment was caused to petitioner. [Pp. 742 & 743] A & B
PLD 1984 SC 95 and PLD 2004 SC 219, ref.
Mr. Humera Khand, Advocate for Petitioner.
Malik Muhammad Tariq Nonari, Advocate for Respondent No. 2.
Malik Muhammad Qasim Khan, Asstt. A.G.
Date of hearing : 11.10.2005.
Order
Petitioner claiming herself to be sui-juris filed a Constitutional Petition No. 4538/2005 titled "Mst. Zuhra Bibi versus Superintendent Darul Aman, etc." praying that she having contracted marriage with her free will with Ali Sajid Nawaz without the approval of her parents, hence she apprehended danger to her life at the hands of her parents and other family members, she therefore, prayed that she be kept in Darul Aman till further orders. The said writ petition came up for hearing before my learned brother Ijaz Ahmad Chaudhry, J. and was disposed of on 27.7.2005 with the following directions:
"In view of the above the Superintendent Darul Aman, Multan, is directed to keep the petitioner in Darul Aman at the expense of the petitioner till she is released by the orders of this Court. However, the petitioner can move application before this Court for her release from Darul Aman when the notices shall also be issued to her father Respondent No. 5, before passing any appropriate orders. In the meantime, no body will be allowed to meet the petitioner in Darul Aman."
Earlier to the said writ petition, the petitioner had also filed Writ Petition No. 4224/2005 seeking registration of case against several members of his family leveling allegation of Zina bil jabr. The said writ petition was also disposed of on 14.7.2005 with a direction to D.P.O., Sahiwal to inquire into the matter and get a criminal case registered, if commission of some cognizable offence was disclosed.
With the above background, the petitioner has filed this writ petition praying for her release from Darul Aman by setting her at liberty. On 11.8.2005, when this petition came up for hearing, notice was issued to the S.H.Os Police Station Ghalla Mandi and Shah Kot, District Sahiwal. Perusal of the file shows that on 13.9.2005 Respondent No. 2 namely Abdul Hameed (petitioner's father) appeared and stated that in fact the petitioner was married with one Azhar Iqbal on 7.1.2004; as such she could not marry Ali Sajid Nawaz on 10.10.2004 during the subsistence of her earlier marriage. My learned brother seized of the matter at that time, directed a thorough inquiry to be conducted in order to determine the validity of either of the two Nikahs of the petitioner, allegedly one with Azhar Iqbal and second with Ali Sajid Nawaz and the S.H.O was directed to visit the place where Nikah had been allegedly performed, join the Nikah Khawan and other witnesses who allegedly participated in the said Nikah with Azhar Iqbal. However, prayer of the petitioner for her release from Darul Aman was withheld till the completion of inquiry, she was as such; ordered to be kept in Darul Aman and S.H.O. was directed to join her with the inquiry proceedings in Darul Aman and case was adjourned for 10.10.2005, when the S.H.O. made a categorical statement that the Nikah Khawan as well as the witnesses of alleged Nikah of the petitioner with Azhar Iqbal, have denied the performance of such Nikah. Whereas, the father of the petitioner vehemently stuck to his claim that she was given in marriage with Azhar Iqbal. The case was adjourned to today i.e. 11.10.2005.
Today, the petitioner has been produced by Superintendent, Darul Aman and case has been heard in presence of the parties as well as their learned counsels and the learned Assistant Advocate General.
The learned counsel for Respondent No. 2 (Abdul Hameed) has strenuously contended that in view of direction of this Court dated 13.9.2005, the petitioner could not be set aside liberty and same would amount to perpetuating or encouraging the immoral act of the petitioner who contracted marriage with Ali Sajid Nawaz on 10.10.2004 knowingly that she was already married with Azhar Iqbal on 7.1.2004.
Conversely, the learned counsel for the petitioner submits that petitioner being sui juris contracted marriage out of her free will and consent with Ali Sajid Nawab and the allegation against her that she contracted this marriage in the presence of her earlier marriage with some Azhar Iqbal, was not only incorrect and mala fide but has also proved to be false during the inquiry conducted by the S.H.O. under the direction of his Court.
I have considered the arguments of learned counsel for the parties.
The interim order dated 13.9.2005 has been perused, which is not the final order but was passed as interim arrangement. Admittedly, the petitioner is sui-juris, as such had inalienable right to contract marriage with the person of her own choice. She admits her marriage with Ali Sajid Nawaz and strongly refutes her alleged previous marriage with Azhar Iqbal. In order to cater such like situation, the Hon'ble Supreme Court of Pakistan in the case "Muhammad Azam versus Muhammad Iqbal and others" (P.L.D. 1984 Supreme Court 95), laid down the guidelines, whereby the question of determination of valid marriage was ordered to be raised before the Family Court constituted under Family Courts Act, 1964 and the findings of the Judge Family Court were declared as conclusive and even binding up to the Supreme Court. Keeping in view the above law declared by the Hon'ble Supreme Court, I am satisfied that the petitioner being sui-juris cannot be ordered to be kept in Darul Aman for an indefinite period, which is even otherwise violative of Article 10 of the Constitution of Islamic Republic of Pakistan, 1973 and this Court being the custodian of the Constitution cannot become a party by ordering her confinement in Darul Aman for an indefinite period against her wishes. Further right of marriage is also constitutionally protected right in terms of Article 35 of the Constitution and as held by the Hon'ble Supreme Court of Pakistan in the case "Hafiz Abdul Waheed versus Mrs. Asma Jehangir and another" (P.L.D. 2004 Supreme Court 219), it is the right and desire of sui-juris muslim girl to marry with a person of her choice and no person, including this Court, can dictate a sui-juris girl to disconnect her marital tie with her husband, just at the wishes or pleasure of her parents or to struck balance in the society. Prima-facie the Nikah of the petitioner with Azhar Iqbal becomes doubtful in the light of inquiry conducted by the S.H.O. under directions of this Court.
For what has been discussed above, by following the course set down by the Hon'ble Supreme Court in Azam's case and Abdul Waheed's case, referred to above, this petition is allowed, the petitioner is set at liberty and Azhar Iqbal her alleged husband is directed to get a verdict about genuineness of his Nikah with the petitioner from a competent Court of jurisdiction (Judge Family Court), if so advised. The S.H.O., present in Court, is directed to ensure that no illegal harassment is caused to the petitioner of no body should cause illegal interference in her matrimonial life with Ali Sajid Nawaz. It is further made clear that any observation/finding of this Court recorded in this order, is purely tentative in nature and will have no bearing or binding effect on decision of the matter, if so agitated, before the Judge Family Court.
(Aziz Ahmad Tarar) Order accordingly.
PLJ 2006 Lahore 743
Present: Muhammad Muzammal Khan, J.
MUHAMMAD ARSHAD--Petitioner
versus
TEHSIL MUNICIPAL ADMINISTRATION, LAHORE through its NAZIM and another--Respondents
W.P. No. 9945 of 2005, decided on 24.3.2006.
(i) Punjab Local Government (Auction of Collection Rights) Rules, 2003--
----R. 18(3)--Stamp Act, (II of 1899)--Art. 5(ccc) and Schedule--Constitution of Pakistan, 1973--Art. 199--Levy of tax on transfer of immovable property--Provisions--Collective study all provisions left no shadow of doubt that stamp duty payable to the "local council" per Art. 5 (ccc) of Schedule I of Stamp Act, 1899 as amended up to date could be recovered by Tehsil Municipal Administration and cannot be avoided solely on the ground that no corresponding amendment in such provision of law had been made by substituting TMA in place of "Local Council"--For instants and purposes TMA is the successor of "Local Council" and can lawfully recover the fees, debts and other dues payable by the contractors--Petition dismissed. [P. 744] B
(ii) Stamp Act, 1899 (II of 1899)--
----Art. 5 (ccc) Sched. of S. 22-A (amended by Punjab Finance Act (X of 1997)--Punjab Local Government Ordinance, (XIII of 2001), Ss. 189, 196(2)--Constitution of Pakistan, 1973, Art. 199--Contract was awarded for collection of Tax on Transfer of Immovable Property by T.M.A.--Virtue of--Controversy--Determination--Whether Stamp duty payable under Art. 5(ccc) of Schedule I of Stamp Act, 1899 as amended by Punjab Finance Act, (IX of 1997) payable to "Local Council" can be recovered by T.M.A. under S. 196(2) of Punjab Local Government Ordinance, 2001 fees payable to a local council which were not inconsistent with any provisions of Ordinance, 2001 were to continue to be paid and were to remain in force--Section 180 provides succession of properties assets and liabilities of the "local councils". [P. 744] A
Mr. Muhammad Asadullah Siddiqui, Advocate for Petitioner.
Ch. Muhammad Sadiq, Additional Advocate General for Respondents.
Date of hearing : 24.3.2006
Order
Petitioner was awarded a contract for collection of Tax on Transfer of Immovable Property by Tehsil Municipal Administration, Nishtar Town, Lahore (Respondent No. 1) with a bid of Rs. 8,00,50,000/- for a period of seven months with effect from 1.12.2004 to 30.6.2005 and he in this capacity filed instant constitutional petition, to avoid demand by Respondent No. 1 to pay stamp duty on the lease amount, equivalent to fifty paisas for every hundred rupees or part thereof on the ground that by virtue of amendment in Section 22-A of the Stamp Act, 1899 as per the Punjab Finance Act, 1997, he was only liable to pay the stamp duty to the "local council" which has already been abolished/dissolved at the strength of Section 196 of the Punjab Local Government Ordinance, 2001 and that T.M.A. (Respondent No. 1) has no right to recover this Stamp Duty.
I have heard the learned counsel for the petitioner and learned Additional Advocate General, besides examination of report/parawise comments by Respondent No. 1. Controversy which hinges for determination is as to whether stamp duty payable under Article 5(ccc) of Schedule I of Stamp Act, 1899, as amended by the Punjab Finance Act, 1997 (Act IX of 1997) payable to a "local council" can be recovered by Tehsil Municipal Administration (Respondent No. 1). Besides, under Section 196(2) of the Punjab Local Government Ordinance, 2001 fees payable to a "local council" which were not inconsistent with any of the provisions of Ordinance, 2001 were to continue to be paid and were to remain in force. Section 180 of the same enactment, provides succession of properties, assets and liabilities of the "local councils" namely Metropolitan Corporations; Municipal Corporations; District Councils; Municipal Committees; Town Committees, established under Punjab Local Government Ordinance, 1979 by the City District Government in case of Metropolitan Corporations and Tehsil Municipal Administrations in case of Municipal Corporation etc. Similarly, according to second Schedule, Part-IV to the Ordinance, 2001, levy of tax on transfer of immovable property by the Town Council, could be recovered by it, under Rule 18(3) of the Punjab Local Government (Auction of Collection Rights) Rules 2003, Collective study of all these provisions left no shadow of doubt that stamp duty payable to the "local council" as per Article 5(ccc) of Schedule I of Stamp Act, 1899, as amended up to date, could be recovered by Respondent No. 1 and the same cannot be avoided solely on the ground that no corresponding amendment in this provision of law has been made by substituting TMA in place of "local council". For all intents and purposes TMA is the successor of "local council" and can lawfully recover the fees, debts and other dues payable by the contractors.
For the reasons noted above, no case for interference in Constitutional jurisdiction was made out, hence this petition being devoid of merits, is dismissed.
(Rafaqat Ali Sohal) Petition dismissed
PLJ 2006 Lahore 745
Present: Sayed Zahid Hussain, J.
M/s. IRIS-RIST TECHNOLOGIES (PVT.) LTD., LAHORE--Petitioner
versus
GOVERNMENT OF PUNJAB through its SECRETARY I.T.D. etc.--Respondents
W.P. No. 16000 of 2005, heard on 10.2.2006.
Constitution of Pakistan 1973--
----Art. 199--Constitutional jurisdiction--Writ of mandamus--Held: Vires of action of public functionaries on the touchstone of reasonableness and fairness could be challenged in writ jurisdiction even in the matters falling within contractual regime yet it should be dependent upon the facts and circumstances of each case--Elementary and crucial facts were not disputed by the parties as the factual inquiry & recording of evidence was not the function of High Court in writ jurisdiction--Petition dismissed. [Pp. 751 & 752] A
1998 SCMR 2268; 1998 CLC 1178; 1999 CLC 745; 2001 CLC 681; 1995 MLD 15; PLD 1999 Kar. 472; PLD 2001 SC 116; PLD 1983 SC 268; 1959 SC (Pak.) 147; PLD 1963 SC 203; 2005 SCMR 445; 1974 SCMR 337; AIR 1961 Mad. 289; PLD 1968 Lah. 1419; 1970 SCMR 542; 1971 SCMR 533; 1974 SCMR 337; PLD 1983 Kar. 340 & 1999 SCMR 467, ref.
Mr. Ali Sibtain Fazli, Advocate for Petitioner.
Ch. Aamer Rehman, Addl. A.G. Punjab for Respondent Nos. 1 & 2.
Dr. Danishwar Malik, Deputy Attorney General Pakistan for Respondent No. 3.
Date of hearing : 10.2.2006.
Judgment
This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 primarily rests upon letter dated 10.12.2004, purported to have been issued by the Project Manager. Government of Punjab. Information Technology Department, the authenticity of which is disputed and controverted by Respondent Nos. 1 and 2. The petition was amended alter on so as to implead National Data Base and Registration Authority (NADRA) as one of the respondents (Respondent No. 3). Narrating the factual background in which the above-mentioned letter is claimed to have been issued it proceeds to make the prayer that "the respondents' act of negotiating the contract with other parties or NADRA may kindly be declared to be illegal, without lawful authority and of no legal effect. It is further prayed that the Respondent Nos. 1 & 2 may also kindly be directed to do what they by law are required to do, i.e. to execute and implement the formal contract with the Petitioner. The letter of Award dated 10.9.2005 in favour of Respondent No. 3 (NADRA) may kindly be declared to be illegal, without lawful authority and of no legal effect." The petition is being contested by all the three respondents through the reply filed by them. The very maintainability of the petition before this Court has also been objected to.
"To
IRIS-RIST Technologies (Pvt.) Ltd.
5A Gulberg II, Lahore
Pakistan
Attention: Mr. Omer Iqbal Wahla
LETTER OF AWARD -- GOVERNMENT OF THE PUNJAB MOTOR TRANSPORT MANAGEMENT INFORMATION SYSTEM PROJECT.
With reference to the above, we are pleased to inform you that our technical evaluation committee has accepted your tender submission for the supply of smart cards and associated software & hardware with a total bid value of Rs. 353,740,974,00, therefore, we have decided to engage your company to undertake the said project.
Upon the approval by the Finance Department of the Government of the Punjab, we will be issuing you a formal purchase order for the deliverables outlined in your tender submission. The contract signing will take place after the negotiation between both parties and approval of the contract by the Law department of the Government of the Punjab.
Please provide us with a written confirmation of your acceptance of your earliest convenience to undertake the project so as we can commence planning for the project implementation.
(Faysal Jamshaid)"
Project manager.
It was affirmatively responded by the petitioner.
"5. Incorrect. Denied. The issue has been examined in detail in IT Department during which it has transpired that:--
(i) No such letter as placed by the petitioner at Annex-B/1 is available on record.
(ii) No authorization by any official has been found on the note sheet records for issuance of any such letter.
(iii) The file number of aforementioned letter i.e. SO (Admn-IT) 8-23/2003 does not relate to the correspondence of MTMIS file.
(iv) There is no entry of dispatch number of said letter in the dispatch record of IT Department.
Further, since the purchase was over Rs. 6.00 million, therefore, under para 102 of Purchase manual, matter was to be decided by the Standing Purchase Committee and was to be subsequently approved by the Finance Department.
Financial bids were opened on 10.12.2004 and the meeting of Standing purchase committee was held on 19.4.2005, therefore, letter could not have been issued on 10.12.2004. Even otherwise, as per the standing instructions of IT Department, Project managers were not competent to issue any such letter. Only Purchase Officers i.e. Section Officer, Deputy Secretary, Additional Secretary or the Secretary as notified under para 28-29 of the Purchase manual were competent in this regard. Similarly the letter has not been authenticated by the Purchase Officer which is a mandatory requirement u/S. 29 of Purchase manual.
Therefore, letter attached at annex-B.1 has never been issued by IT Department and its submission amounts to contempt of this honourable Court."
Thus the authenticity of the very basic document (upon which the case of the petitioner rests) has been disputed by the respondents. It is in this context that when no conclusive and binding contract had yet been arrived at between the parties and the transaction was still at the stage of bid and negotiations, it is to be seen as to whether the petition can be maintained for such a relief as has been prayed. Another question of significant importance is the legal efficacy of the letter itself i.e. 10.12.2004.
Mr. Aamer Rehman, the learned Additional Advocate General Punjab while vehemently opposing the maintainability of the petition has contended that mere participation in the bid even if it be the highest or lowest (as the case may be), does not clothe the party concerned with any right to invoke writ of mandamus to compel the Government to enter into a contract. While making reference to Paragraphs 5, 6 and 7 of the reply, he disputes the very issuance of letter dated 10.12.2004. According to him writ of mandamus does not lie for such a purpose as laid down in The State of Pakistan and another v. Mehrajuddin (1959 S.C. (Pak.) 147), Masudul Hassan v. Khadim Hussan and another (PLD 1963 S.C. 203) has been relied upon to contend that for the issuance of writ of mandamus there has to be in existence a legal right to seek performance of a legal duty. He has also cited Asadullah Mangi and others v. Pakistan International Airlines Corporation and others (2005 SCMR 445) in this context. Babu Parvez Qureshi v. Settlement Commissioner, Multan & Bahawalpur Division, Multan and 2 others (1974 SCMR 337) has been cited by him that where the bid of an auction purchaser is subject to confirmation it does not create any right in the bidder unless the bid had been confirmed. Subramania Mudaliar v. Ammapet Co-Operative Weavers Production and Sales Society Ltd. by its President S. Gopalaswami Mudaliar (AIR 1961 Madras 289) has been cited by him to contend that a casual communication of acceptance by the President of the Society could not be considered as a concluded contract. A Division Bench judgment of this Court in Dr. Azeem Shad v. Municipal Committee Multan (PLD 1968 Lahore 1419) has been cited to show that all legal formalities must have been completed in order to create a binding contract and mere acceptance of tender could not be considered as a valid contract.
Dr. Danishwar Malik, the learned Deputy Attorney General Pakistan who represents Respondent No. 3 (NADRA) has contended that dispute as to whether letter dated 10.12.2004 had been issued or not is a question of fact which cannot be determined by this Court nor such an inquiry can be undertaken about such assertions of the respective contending parties. According to him even the negotiations said to have been commenced between the parties are indicative of the fact that no contract had yet been concluded and unless there was an absolute and unqualified agreement the petitioner could not claim any right merely for the reason that he was one of the participants in response to the tender. According to him even the acceptance of the tender did not in itself make contract. For this purpose he cites "Principles of the English Law of Contract by Sir William R. Anson, Twentieth Edition, Page 44. He has also made reference to Law of Contract, page 35 by Dr. Avtar Singh, Sixth Edition. It has been contended by him that the award of contract to his client was in the best interest of the Government and the public exchequer and even no tender was required when the contracting parties are two Government Departments.
I have had the occasion and advantage of hearing able arguments of the learned counsel representing the parties whose contentions apart from the competency or otherwise of the petition touched certain factual aspects of the matter also. However, in view of the order that I propose to pass after hearing them, I tend to refrain from entering into the factual realm as there is serious controversy about the same.
The case of the petitioner in short is that the Evaluation Committee of the Government of Punjab had determined the bid submitted by the petitioner as the lowest one and thus was the winner who was entitled to the award of contract. Though the issuance of letter dated 10.12.2004 is being vehemently disputed by Respondent Nos. 1 and 2 yet assuming for the present that it was so conveyed to the petitioner, its perusal itself was indicative of fact that the contract was yet to be negotiated and formalized and thereafter to be executed after approval by the Finance Department and the Law Department of the Government of the Punjab. Nothing has come on the record to establish that such stages and steps had been overcome and finalized. Such an inchoate process meant to arrive at a contract did not confer any indefeasible right to compel Respondent Nos. 1 and 2 by means of a writ in the nature of mandamus "to execute and implement the formal contract with the petitioner". Indeed clause 30.1 of the Bid Document itself provides that "The Purchaser reserves the right to accept or reject the bid and to annul the bidding process at any time prior to award of Contract, without thereby incurring any liability to the bidder or any obligation to inform the bidder of the grounds for the Purchaser's action." The italicised portion of the clause would leave no room for doubt that the petitioner before participation in the bid must have known and was aware of the procedure and the powers reserved by the Government. It may be observed that this clause is akin to many such clauses which are part of public auctions/bids. It has in such context repeatedly been held that the mere fact that the petitioner was the lowest bidder does not clothe him with a right or locus standi to succeed on that basis. In Meraj Din v. Noor Muhammad (1970 SCMR 542) it was held that even the highest bidder at an auction who had deposited a substantial amount of auction money did not acquire any right whatsoever in the property as the auction was subject to confirmation in terms of relevant conditions of auction which provided that even the highest bid could be rejected without assigning any reason. In Munshi Muhammad v. Faizanul Haq (1971 SCMR 533) it was held by their Lordships of the Supreme Court of Pakistan that the highest bidder in an auction in absence of final approval was not clothed with any right in the auctioned property and had no locus standi in the matter. In Pervez Qureshi v. Settlement Commissioner (1974 SCMR 337) it was held that a mere bid at an auction does not create any contractual right until the bid is confirmed if it is subject to confirmation and the bidder cannot be considered to be a person aggrieved by cancellation of the auction. In Fawwad & Fareen Enterprises Ltd. v. Director of Industries, Government of Sindh, Karachi (PLD 1983 Karachi 340), a Division Bench of the Sindh High Court, (which was a case of tenders), it was observed that where the authority had reserved the right to accept or reject the bid the mere fact, that the bid was lowest would not confer any right unless the petitioner could prove that the offer had been accepted. In view of the factual controversy involved in the case the petition was dismissed by the learned Division Bench. In Nizamuddin and another v. Civil Aviation Authority and 2 others (1999 SCMR 467). It was observed that "The argument advanced by the learned counsel for the appellants that as the latest trend of superior Courts in our country and also elsewhere is to enlarge the scope of judicial review, therefore, availability of alternate remedy or matter involving contractual obligation should not pose hurdle in exercise of power of judicial review under Article 199, is too wide and sweeping to be adopted in every case. It is axiomatic principle of law that every case is to be adjudged on its own facts, circumstances and merits. If in a particular case both the parties admit the factual aspect which give rise to the dispute and the Court feels that the matter is of such an urgent nature that the very remedy would get frustrated, if the aggrieved party is directed to seek redress through alternative remedy available under the law, then in that case it would be proper for the Court to entertain the writ petition---. If in every contractual matter giving rise to enforcement of contractual obligation or a dispute which can be redressed through other remedy available under the law, writ petitions are entertained, then this would defeat that very purpose of law and which competent Courts are established and vested with jurisdiction under the law." At page 650 of the "Administrative Law by Sir William Wade, Seventh Edition, in the context of writ of mandamus the learned author has commented "A distinction which needs to be clarified is that between public duties enforceable by mandamus, which are usually statutory, and duties arising merely from contract. Contractual duties are enforceable as matters of private law by the ordinary contractual remedies, such as damages, injunction, specific performance and declaration. They are not enforceable by mandamus, which in the first place is confined to public duties and secondly is not granted where there are other adequate remedies." There is thus no obscurity or confusion that in the facts and circumstances, the petitioner cannot legitimately seek a command in the nature of mandamus from this Court to compel the Government to enter into the contract with him. Resort to the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is entirely misdirected and misconceived.
The precedents cited by the learned counsel for the parties though show the tendency of the Courts in the recent times to examine the vires of the actions of the public functionaries on the touchstone of reasonableness and fairness even in matters falling within the contractual regime yet such an exercise to be undertaken by the Court, is dependent upon the facts and circumstances of each case. The essential feature to be kept in view is that elementary and crucial facts were not disputed by the parties as there is a consensus in the judicial approach that controversy as to disputed questions of facts entailing factual inquiry and recording of evidence, cannot appropriately be the function of the Court in writ jurisdiction. In the present case it has been noted that the very basic facts are in dispute.
As a result direction in the nature of writ of mandamus to Respondents Nos. 1 and 2 "to execute and implement the formal contract" with the petitioner cannot be issued. Since the petitioner has not been found entitled to maintain his petition against Respondents Nos. 1 and 2 no relief can be granted against Respondent No. 3. The petition is dismissed accordingly with no order as to costs.
(Javed Rasool) Petition dismissed.
PLJ 2006 Lahore 752
Present: Ali Nawaz Chowhan, J.
MUHAMMAD SAIFULLAH KHAN etc.--Petitioners
versus
GULLU etc.--Respondents
C.R. No. 845 of 1994, heard on 16.2.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 31--Judgment of Appellate Court--Held: It was a peculiar case pertaining to the rights bestowed by law and District Judge ought to have given reasons for differing the trial Court instead of merely stating that he was upsetting the finding on issue--Case remanded for decision afresh. [P. 760] A
Malik Allah Wasaya, Advocate for Petitioners.
Mr. Gohar Razzaq Awan, Advocate for Respondents.
Date of hearing : 16.2.2006.
Judgment
This revision petition is against a judgment in appeal handed down by Hafiz Khalil Ahmad, the learned District Judge, Bhakkar in Civil Appeal No. 123 of 1992, dated 24.4.1993.
"9. After the enforcement of MLR No. 64 the Land Reform Commission had issued the instructions, whereby Adna Maliks were made the full proprietors of the land held by them, while the name of Aala Maliks were to be deleted from the revenue record. Martial Law Regulation No. 64 has been enforced in the year 1959. It was in the year 1962 that the two Mutations Nos. 48 and 49 were sanctioned in favour of the respondents. Mutation No. 48 was of Qaimi Malkiyat while Mutation No. 49 was of Tark-e-Malkiyat. The copies of those mutations have been produced as Exh. P.9 and Exh. P.10. Ex. P.9 shows that the names of Aala Malikans were changed into the full proprietors. The entries of Exh. P. 9 show that the property was Shamilat Deh and in possession of Adna Malikan. So, distinction was very much there in between Aala Malikan and Shamilat Deh, that was the ownership of the Adna Malikan as observed earlier. After the enforcement of MLR No. 64 Para No. 22 in the year 1959 there was no question of declaring Aala Malikan to be the owners that was in violation of MLR No. 64. When the entries of Aala Malikan has been abolished, how they could be made the full proprietors of the same property. Exh. P. 10 is very interesting. It was entered on the same day and sanctioned on the same time when Mutation No. 48 was sanctioned. According to them the Aala Malikans were changed to Adna Malikans and in the column of Shamilat Deh the names of these persons were recorded and it was given the name of Tark-e-Malkiyat Aala. There was no question of Tark-e-Malkiyat Aala, as their Aala Malkiyat had been abolished by virtue of MLR No. 64 Para No. 22. It appears that these mutations were entered in connivance with Aala Malikans with the revenue authorities. The persons who were tillers of the land were not even intimated nor they were heard. These mutations were sanctioned at a place far away where the land is situated in violation of the Land Revenue Act."
"10. It is admitted fact the civil litigation and different suits between Aala Malikan and Adna Malikan were instituted, whereby Mutations Nos. 48 and 49, the subject-matter of the present suit were challenged. The suits were dismissed by the Civil Judge Bhakkar. The appeal was filed and the learned District Judge accepted the appeals and held that the Mutations Nos. 48 and 49 were illegal. The appeals were filed and the Honourable High Court concluded that the findings of the District Judge Mianwali were correct, meaning thereby that Mutation Nos. 48 and 49 were kept illegal and void. The Civil Appeals Nos. 432, 433 and 434 were filed before the Supreme Court of Pakistan and they were dismissed as is evident by Exh. P.11. So, Mutations Nos. 48 and 49 have been held to be illegal up to the level of the Supreme Court of Pakistan as they were in violation of Para No. 22 of the Martial Law Regulation No. 64. The prayer of the appellants in the instant suit was that Mutations Nos. 48 and 49 were illegal and void. In view of the judgment Exh. P. 11 the learned trial Court could not give any further finding except that Mutations Nos. 48 and 49 were illegal and void being in violation of MLR No. 64 para No. 22, the respondents have acquired the right in Shamilat Deh on the basis of Mutations Nos. 48 and 49."
"14. For what has been discussed above I have come to the conclusion that the appellants have been in possession of this property which was Shamilat Deh since the time of immemorial. They had not shared the produce with the respondents, who were Aala Malikan. The rights of Aala Malikan stood abolished by virtue of Para No. 22 of MLR No. 64. The respondents could not claim that they were Aala Khud adna as Mutations Nos. 48 and 49 were the result of connivance in between the revenue Authorities and the Aala Malikan and they could not defeat the right of the appellant in the suit property. So, the findings of the learned trial Court on Issue Nos. 1, 2 and 3 were set aside. These issues are decided in favour of the appellants. The remaining issues had also been decided in their favour."
The petitioners in this case claim themselves to be Malik-a-Aala of the land which is Shamilat land and was covered by Mutations Nos. 48 and 49. Incidentally, it may be mentioned that both the Mutations had transferred the entire village Shamilat land and, therefore, these were not persons specific.
Learned counsel for the petitioners stated that the observation given by the learned District Judge that Mutations Nos. 48 and 49 had been declared void by the Hon'ble Supreme Court was based on misreading and non-reading of record showing the factual position prevailing before him and without first finding out whether Mutations Nos. 48 and 49 were void, he should not have upset the decision given by the learned trial Court.
The question then arises what is the status of Mutations Nos. 48 and 49 On one hand, we have the judgment of the apex Court in Civil Appeal No. 432 of 1990 etc., dated the 5th of March 1991. Going through this judgment, we find that these were specific to the parties and there is no declaration to the effect that Mutations Nos. 48 and 49 have been declared void in entirety.
Learned counsel for the petitioner for finding an answer to this question finds support from an observation made in the judgment of Mr. Justice Munir A. Sheikh, passed in Writ Petition No. 11126 of 1994, dated 11.2.1995, where the following observation has been made:--
"After hearing learned counsel for the petitioner and Syed Jamshed Ali Shah, Advocate learned counsel for Respondent No. 2 at limine stage, I do not find myself in agreement with the learned counsel for the petitioner that in the said suit Mutations Nos. 48 and 49 as a whole in general were declared to be inoperative and void. The petitioner was declared to be the owner of land measuring 200 Kanals 15 Marlas and qua this land and the petitioners rights of ownership on it that Mutations Nos. 48 and 49 were declared to be ineffective and nothing more. He could not claim that the consolidation in the village qua the other land as a whole should be stayed treating the said mutation as a whole inoperative. The petitioner has been granted ownership rights in the land measuring 206 Kanals 15 Marlas through Mutation No. 84 sanctioned on 10.2.1976 therefore he cannot claim any land in excess thereof."
So, the matter is clinched here and the judgment aforementioned and the observation as given support his theory that Mutations Nos. 48 and 49 were not held to be illegal in entirety and a sifting had been made as to who were the persons who were to take benefit in view of Martial Law Regulation No. 64 and on the basis of the touchstone as given in the case of Ghulam Haider v. Ghulam Raza Shah (PLD 1979 Lah. 481) and the touchstone as given in the judgment reads as follows:--
Clearly, therefore, the effect of the abolition of ala milkiat is that the ala maliks become the owner of a property which is not shown in the ownership of any adna malik. In view of this clear provision of law the observations of their Lordships in the authority relied upon by the learned counsel may be confined to the facts of that particular case but cannot be treated to have a general overriding effect over the rights of the ala Maliks as determined by the West Pakistan Land Commission in exercise of power under para. 4(5) of the Regulation.
Even if this provision had not been there the conclusion would not have been different. The division of the proprietary rights and consequent rights of superior proprietor and inferior proprietors have been dealt with in Punjab Settlement Manual by Sir James M. Douie (15th Edn.) in paras. 143, 167, 168, 169 and 171. The origin of the rights may differ from district to district but the rights of both types of proprietors are almost uniform. The rights of both categories of proprietors in Muzaffargarh District particularly with reference to waste as explained by Mr. O' Brien are dealt with in Para. 169 of the Settlement Manual. The relevant portion of this quotation is as follows:--
"The superior proprietors claim to be owners of all unappropriated land. The malikan adna are full proprietors of the land in their possession subject to the payment of the share of the old proprietors, and not liable to eviction on failure to pay it, and are entitled to introduce tenants without reference to the superior proprietors.......Their rights (rights of superior proprietors) are restricted.........to disposing of the unappropriated waste in the village.........The unappropriated waste belongs to the superior proprietors.........."
In para. 171 it is stated that the title of the superior landlord has been most fully preserved in Mianwali and in the Sanawan Tehsil of Muzaffargrah. Reference is made to Mr. Tucker's Settlement Report of Dera Ismail Khan.
"(1) The ala malkiyat is not ordinarily to be partitioned, though such partition may be allowed for sufficient reasons. In case of partition the rights of the adna maliks in the common land of the whole village will be continued as before. For instance, an adna malik will continue to graze his cattle and to beak up waste in all the patties into which a Mauzah may be dividend.
(2) The ala maliks will have the first right to cultivate waste, and after them the adnas. Failing these the ala maliks may give lands to outsiders to cultivate.
(3) Though the ala maliks have paid no jhuri hitherto, they will pay it in future for any lands they may clear. There will, however, be this different between them and the adna maliks that it will be optional with the ala maliks to take jhuri from an adna malik, in which case he will remain an occupancy tenant only. The individual ala malik on the other hand, will be entitled, if he chooses, to pay jhuri at a fair rate, and to thus become an adna malik. In such a case the other ala maliks will not be able to refuse to take jhuri.
(4) The question as to the taking of jhuri, or as to its amount, will for the future be determined by the ala maliks as a body, and the decision come to be recorded, by the partwari.
(5) The lambardar will be entrusted with the power of allotting common waste for cultivation. Any persons feeling aggrieved at the way in which he exercises such power, must put in a complaint at once, otherwise person clearing jungle, with the lambardar's permission, will acquire occupancy rights, and pay rent at the customary village rate to the superior proprietary body.
(6) The right to profits from the produce of common waste land, other than grazing, has been continued to the superior proprietors subject to the right of the adna maliks and cultivators to take first what they want for their own requirements. The ala maliks have been given the option of taking a third of whatever munj grass there may be, leaving the rest to the cultivating body generally or of leaving the whole to the adna maliks till Ist January after which the ala maliks are at liberty to sell the remainder. In neither case are the adna maliks at liberty to sell any munj gross that they may have out, for dispose to it to outsiders.
(7) All classes of cultivators are entitled to firewood from the common lands. Non-cultivators such as traders and artisans, will in future pay 8 annas a year for the privilege of taking gross and wood and munj from the common lands. Payment under this head will go to meet the grazing jama assessed on such lands, and will not be a pre-requisite of the ala maliks.
(8) In some cases partial partition of the waste may be effected. In such cases, the existing, waste can be divided among the superior proprietary share without touching the cultivated lands, and it can be provided that the malikana due on the partitioned lands, when these are brought under the cultivation, will be paid into the common fund. In this way the right to the malikana will continue to be held undivided as before, but each ala malik will be able to make his own arrangement for taking jhuri, etc. for the lands that may have fallen to his portion. A portion of this sort, though it effectively protects the interests of the shares claiming partition, is not generally what the ala maliks care for. The great idea of every ala malik is to get patti of his own, with adna maliks over whom he can rule, and a share of the lambardari."
(1) Ala malkiat means the right to give waste land for cultivation to others.
(2) Persons among the body of the ala maliks can bring a portion of the waste under cultivation and become the adna malik themselves. This proprietorship is subject to the right of ala malik to the payment of jhuri and malikana.
(3) Where the waste is not common land and the title of the maliks of the village to it and not only to all malkiat in it is recognized by Government, the waste is the property of the ala maliks, which they may use in any way they like, and
(4) If the unappropriated waste is common land (Shamilat-i-deh) it is not exclusive property of any body but the nature and extent of such rights will depend upon the terms of the Wajibularz which incorporates the agreement in respect of this land between the Government, the ala maliks, the adna maliks and the other representatives of the village.
On the facts of that case it was held that according to the conditions of the Wajibularz the ala maliks have the first right to bring the Shamilat land under cultivation. Though it was held that ala maliks could not be deemed to be the exclusive owner but a decree for ejectment of the defendants, adna malikan, was passed. This case was, as stated above taken to the Supreme Court by the defendant but the appeal was not pressed and was dismissed as such.
The other case decided by a Division Bench of Lahore High Court is K.B. Muhammad Abdul Rahim Khan v. Hussaina (1). This case dealt with the land in villages Hetu and Tinda Thal of District Mianwali. On the basis of wajibularz of the village, the ala maliks were held entitled to partition of the shamilat deh and were held to be sole owners of it, which means that they had full proprietary interest in it to the exclusion of the adna maliks and tirniguzars. It was observed that the wajibularz determines the rights inter alia of the two types of proprietors.
The view that ala maliks have the right to partition of waste land is thus uniform. Similarly position of the wajib-ul-arz as a charter of rights of right holders in an estate is undisputed."
"35. This document is of the same pattern as the wajibularz in the case decided in K.B. Muhammad Abdul Rahim Khan v. Hussaina and supports the principles laid down in Mr. Tucker's report. Another document is Exh. D.2, a judgment between ala maliks and the adna maliks of village Daggar Yar Shah dated 10.6.1933 delivered by Mr. P.R.B. May, District Judge, Mianwali. The ala maliks were held in that case also to have proprietary rights in the shamilat area. As a result of this finding the suit of the dana maliks who had claimed a right in the shamilat of village and a right to claim its partition, was dismissed by the said learned District Judge. This judgment was confirmed by the High Court in Civil Case No. 1863 of 1933 on 26.4.1935 (copy Exh. D.3). From the facts as stated above as well as law it is clear that:
(1) Ala maliks bringing any of the area of shamilat under cultivation will also become the adna maliks of that area with the result that their right of proprietorship becomes all exclusive.
(2) In case of reclamation of barani area, no right of adna milkiyat can be claimed by the person breaking the waste, and
(3) The ala maliks have a right to partition of the waste without any interference from the adna maliks."
The question next is whether the petitioners being Ala Malik had any Adna Malik working under them in the land under Reference.
The suit was filed by the ten persons seeking a declaration in respect of the land the description of which is given in the plaint which reads as follows:--
"120 Kanals situated in Khata No. Nil, Khasra No. 324/4, 325/2 to 5, 328/3 to 8, 9/1, 111/9-10, 109/4 of Muaza Daggar Yar Shah Sharqi Tehsil and District Bhakkar, praying that Mutations Nos. 48 and 49 dated 30.6.1962 of creation of Adna Malkiat and abolition of Ala Malkiat are against law and facts and ineffective upon the rights of plaintiffs. They are Adna Maliks of the suit land and their possession over it is Basharah."
reclaimed the suit land and they have become owner of it due to operation of M.L.R No. 64, Para No. 22, Mutations Nos. 48 and 49 sanctioned on 30.6.1962 and 7.6.1962 in favour of defendants are illegal, void, against law and ineffective upon the rights of plaintiffs? OPP
and the finding on this issue as given in paragraph 18 reads as follows:--
"Plaintiffs by their evidence have failed to prove themselves Adna Maliks over the suit land as defined in Land Reforms and reproduced above. Their version that suit land was reclaimed by them is also not proved from their documentary evidence EXP-5 and EXP-6. If in any way it is deemed that suit land was reclaimed by them even then Para No. 22 does not grant any proprietorship to them. Plaintiffs were recorded as Ghair Dakhilkaran in revenue record above discussed, therefore, at the time of sanctioning of Mutations Nos. 48 and 49 they were not required to be given any intimation, as they have added that these mutations were without notice to them. AC-II during consolidation, while founding the plaintiffs as non occupancy tenant in previous revenue record rightly sanctioned Mutations Nos. 48 and 49 of creation of Adna Malkiat and abolition of Aala Malkiat in favour of defendants. Had plaintiffs been recorded Adna Maliks of the Shamilat land, then he has considered their rights under Para No. 22 of M.L.R. No. 64. Plaintiffs by their evidence failed to prove this issue, therefore, it is answered against them."
According to this issue, the plaintiffs have failed to establish themselves as Adna Maliks under the law.
However, when the matter went in appeal before the learned District Judge, he did not dilate on Issue No. 1 as he should have done. The learned District Judge was merely impressed by the fact that as Mutations Nos. 48 and 49 had been declared to be illegal, therefore, even if the petitioners claim themselves to be Aala Malik, had no right left, which is an erroneous conclusion as we have seen because Mutations Nos. 48 and 49 were not declared illegal as such as was observed by the learned District Judge. The learned District Judge ought to have decided the status of the plaintiffs and the defendants while giving his views whether it was upholding the findings of the learned trial Court or not and in case, he was differing with the views of the learned trial Court what were basis in reference to the facts on the record for disagreeing with the trial Court.
This is a peculiar case pertaining to the rights bestowed by law and the learned District Judge ought to have given reasons for differing with the trial Court instead of merely stating that he was upsetting the finding on Issue No.
(Javed Rasool) Case remanded.
PLJ 2006 Lahore 761
Present: M. Bilal Khan, J.
Haji MUHAMMAD ASHIQ--Petitioner
versus
STATE and another--Respondents
W.P. No. 19342 of 2005, decided on 19.1.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Constitution of Pakistan, 1973--Art. 199--Stay of proceeding--Constitutional Petition--Criminal Court to stay criminal proceeding till decision of civil Court relating to same subject matter--Validity--Civil suit and criminal case both have to be decided on their own merits and evidence recorded in one case cannot be used in other--Civil case would not be binding in criminal case--Held: Both governed by different laws--Petition dismissed. [P. 762] A
PLD 1968 SC 281, rel.
Pir S.A. Rashid, Advocate.
Date of hearing : 19.1.2006.
Order
Haji Muhammad Ashiq son of Mian Meraj Din, the petitioner, by filing this Constitutional petition, seeks setting aside of the orders dated 30.7.2005 and 24.10.2005 passed by the learned Judicial Magistrate Ist Class and the learned Additional Sessions Judge, Lahore, respectively. He has further prayed that "a direction be issued to the learned Magistrate Mr. Zia Tariq Khokhar, to complete the trial proceedings but should not announce the final judgment till the pendency of the civil suits for specific performance between the parties pending in the Court of Mr. Shahzad Masood Sadiq, C.J. Lahore and application u/S. 12(2) CPC also pending in the same Court".
Briefly the facts giving rise to this petition were that Dr. Shahid Aziz (Respondent No. 2) got registered case F.I.R. No. 53, dated 3.4.2004, at Police Station Shadman Colony, Lahore for offences under Sections 420, 468, 471 P.P.C., alleging therein that the petitioner had played a fraud with him while selling Property No. 714/B, Shadman Colony, Lahore. During the course of trial, the petitioner moved an application before the learned trial Magistrate seeking stay of proceedings of the aforesaid case till the decision of the civil suit for Specific Performance and an application under Section 12(2) C.P.C. pending in the Court of Mr. Shahzada Maqsood Sadiq, Civil Judge, Lahore. The said application had been dismissed by the learned trial Magistrate vide order dated 30.7.2005. Being aggrieved thereof, the petitioner preferred a revision petition before the learned Court of Sessions, which too met the same fate vide order dated 24.10.2005 passed by the learned Additional Sessions Judge, Lahore. Hence, the instant constitutional petition.
I have heard the learned counsel for the petitioner at considerable length and have also gone through the impugned orders.
There is no provision of law, which mandates a criminal Court to stay criminal proceedings till decision of civil suit relating to the same subject-matter. Civil suit and criminal case both have to be decided on their own merits and evidence recorded in one case cannot be used in the other. Likewise the judgment in the civil case would not be binding in the criminal case. Both the proceedings are governed by different laws. It would be useful to quote the dictum laid down by the Hon'ble Supreme Court in the case of Muhammad Akbar v. The State and others (PLD 1968 SC 281), wherein the Hon'ble apex Court had held that there was no invariable rule that the proceedings in a criminal case should be stayed pending civil litigation. It was held that it was a matter of pure discretion. The learned counsel for the petitioner has not been able to point out any irregularity much less any illegality in the impugned orders passed by the learned Court s below warranting interference by this Court in its constitutional jurisdiction. There is no merit in this petition, which is dismissed in limine.
(Rafaqat Ali Sohal) Petition dismissed
PLJ 2006 Lahore 762
Present: Muhammad Muzammal Khan, J.
FAISAL NAEEM SARWAR--Petitioner
versus
S.H.O., POLICE STATION DIJKOT DISTRICT FAISALABAD and 7 others etc.--Respondents
W.P. No. 3394 of 2006, decided on 25.4.2006.
Constitution of Pakistan, 1973--
----Art. 199--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 11--Quashment of FIR--Sui juris marriage out of her free will--Petitioner entered into a tie of marriage with "Mst. B.N" through a registered Nikha Nama--Registration of criminal case of alleged abductee was not only unauthorized but also misuse of process of law--Constitutional jurisdiction--Abductee being major/sui juris with the age of 20 years performed Nikah with petitioner and also shown affidavit that no body had abducted her and abductee left the house of the complainant of her own empty handed--Held: There had been a lawful marriage between the petitioner and abductee, thus they had not committed any cognizable offence--Where two major Muslims of sound mind solemnize marriage out of free will, by entering into a contract for procreation and legalization of their children according to Muslim Family Laws Ordinance, 1961 no cognizable under the Offence of Zina (Enforcement of Hadd) Ordinance, 1979 is made out--Further Held--Registration of criminal case against accused was apparently without commission of cognizable offence and was opted by police out of sheer misuse of process of law--Petition accepted. [Pp. 763 & 764] A, B & C
PLD 1981 FSC 306, PLD 1981 FSC 308, PLD 1982 FSC 42 and PLD 1984 FSC 93, ref.
Mr. Nazir Ahmad Ghazi, Advocate for Petitioner.
Ch. Muhammad Arshad, Advocate for State alongwith M. Ashraf Sub Inspector.
Date of hearing : 25.4.2006.
Order
Petitioner being an accused of FIR No. 175 dated 30.3.2006 under Section 11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 registered with police station Dijkot District Faisalabad, prayed its quashment on the ground that the alleged abductee namely Mst. Babra Nasim entered into a tie of marriage with him on 27.2.2006 through a registered Nikah Nama. It was contended that Mst. Babra Nasim according to her birth certificate issued by the Secretary, Union Council No. 253 R-B, Faisalabad, is of 20 years age, having been born on 15.11.1985. It was further submitted that Mst. Babra Nasim being major/sui juris solemnized the marriage out of her free will/volition and no body abducted her thus no cognizable offence in terms of Section 154 Cr.P.C. was committed. It was also emphasized that registration of criminal case on complaint of mother of the alleged abductee was not only unauthorized but was also misuse of the process of law thus the same deserved to be quashed in Constitutional jurisdiction of this Court.
On Court's requisition Muhammad Ashraf Sub Inspector of Police Station Dijkot District Faisalabad appeared alongwith the case file and submitted that according to preliminary investigation Mst. Babra Nasim the alleged abductee is of 20 years age and entered into a tie of marriage with the petitioner, of her own accord. The official present in Court further submitted that petitioner's Nikah with Mst. Babra Nasim was duly performed by a registered Nikah Khwan and the Nikah Nama has been registered in accordance with the law applicable.
I have heard the learned counsel for the parties and have examined the police record. According to the attested copy of extract from the birth register maintained by Union Council No. 253-R-B District Faisalabad, Mst. Babra Nasim was born on 15.11.85. Her birth entry was entered at Serial No. 123 of the birth register. Abductee is also mentioned as 20 years old in the Nikah Nama whereas, in the FIR she had been shown as major, without mentioning any age. Undeniably, Mst. Babra Nasim being major/sui juris with the age of 20 years performed Nikah with the petitioner and also sworn an affidavit on 27.2.2006 that no body had abducted her and she left the house of her mother, of her own empty handed.
According to Muslim and Hadood Laws, a girl on attaining of puberty will be deemed to have attained majority. The complainant has not given age of the alleged abductee and according to her own declaration before this Court and in the Nikah Nama she is of 20 years of age. There is no doubt that Mst. Babra Nasim is major and appeared to be sensible from her appearance. Both these spouses are living together. In view of respective claims of the parties and Nikah Nama registered with Union Council concerned, it appeared that there had been a lawful marriage between the petitioner and Mst. Babra Nasim thus they have not committed any cognizable offence. Law regarding marriages is settled by this time to the effect that where 2 major Muslims of sound mind solemnize marriage, out of their free will, by entering into a contract for procreation and legalization of their children, according to the Muslim Family Laws Ordinance, 1961 no cognizable under the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 is made out. Reference in this behalf can be made to the judgments in the cases of Khalid Parvez and other versus The State (PLD 1981 FSC 306), Muhammad Imtiaz and another Versus the State (PLD 1981 FSC 308), Arif Hussain and Azra Parween versus State (PLD 1982 FSC 42) and Muhammad Ramzan versus State (PLD 1984 FSC 93).
For the reasons noted above, registration of criminal case against the writ petitioner was apparently without commission of cognizable offence and was opted by the police concerned, out of sheer misuse of process of law. This petition is accordingly accepted and by quashing the FIR No. 175 dated 20.3.2006 under Section 11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 registered with police station Dijkot District Faisalabad writ as prayed, is issued with no order as to costs.
(Rafaqat Ali Sohal) Petition accepted.
PLJ 2006 Lahore 764
Present: Muhammad Muzammal Khan, J.
ABDUL GHAFOOR--Petitioner
versus
NASWARI and 12 others--Respondents
W.P. No. 3661 of 2006, decided on 20.4.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Constitution of Pakistan, 1973--Art. 199--Contitution of Jurisdiction Elements of fraud and misrepresentation--Joint Khata--Suit for declaration filed with claim that decree was obtained through fraud and misrepresentation accepted--Revision petition was dismissed--Assailed--Scan of record and judgment revealed that all the pre-requisites for adjudging setting aside a decree u/S. 12(2) CPC were fulfilled--Elements of fraud and misrepresentation on part of petitioner and respondents qua the Court--Held: No prejudice to the petitioner has been caused through impugned order as he will get the decree again to extent of share of respondents to prove his entitlement--None of respondent committed any illegality amenable to Constitutional jurisdiction of High Court--Petition dismissed. [P. 766] B & C
(ii) Co-sharer--
----Every co-sharer of joint property will be considered owner in every inch of that joint property according to ratio of his share in Khata. [P. 766] A
PLJ 1986 Lahore 499, 1998 CLC 2006, 1989 SCMR 130 and 1992 SCMR 138 rel.
Sardar Muhammad Ramzan, Advocate for Petitioner.
Date of hearing : 20.4.2006.
Order
Petitioner and his brother earlier had purchased one kanal 16 marlas of land out of a joint holding through registered sale-deed dated 19.8.1990, he then claimed another purchase of land measuring 6 kanals 11 marlas from the same "Khata" from the other co-sharers namely Respondents Nos. 6 to 9. The petitioner claimed that possession of the subsequent orally sold land was given to him but on interference therein, he filed a suit for declaration against Respondents Nos. 6 to 9 before the learned Civil Judge Bhakkar. The said respondents conceded the claim of the petitioner and his suit was decreed vide judgment/decree-dated 3.9.1997.
Respondents Nos. 1 to 5 who were purchasers of land measuring 5 kanals one marla from Qaiser Iqbal co-owner of the petitioner, filed an application under Section 12(2) CPC before the trial Court on 18.10.1997 with the claim that decree subject of attack was obtained through fraud and misrepresentation regarding specific khasra numbers/specified portion of joint khata which under law could not have been passed, thus the same being without jurisdiction may be adjudged. The application filed by Respondents Nos. 1 to 5 was contested by the petitioner but after recording of evidence in pro and contra, the same was accepted by the trial Court vide order dated 11.1.2005 with the result that petitioner's suit became alive.
Petitioner being aggrieved of the order-dated 11.1.2005 filed a revision petition before the learned Additional District Judge, Bhakkar but remained unsuccessful as the same was dismissed on 14.2.2006. He has now filed a Constitutional petition praying that both the concurrent orders of Respondents Nos. 12 and 13 may be declared illegal, void and of no legal consequence.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, the petitioner in his plaint had claimed sale of land measuring 6 kanals and 11 marlas with specific khasra numbers by specifying the boundaries of the land, out of joint khata from Respondents Nos. 6 to 9 who filed concessional written state-ment. Parties to the suit also filed compromise deed (Ex. P.C/1) on the basis of which the suit of the petitioner was decreed on 3.9.1997 and it also gave the same specification as given in the plaint. Sale of specific khasra numbers with specified boundaries out of joint holding could not have been affected but inspite of the same was allowed to be done through a decree under attack. The learned counsel for the petitioner could not deny with Khata No. 820 wherein the suit land is situated, has not been partitioned, so far and that some parts of the joint holding are valuable being abutting the mettled road whereas other parts, are of less value being located at the back. Law regarding joint holding is firmly settled by this time to the effect that every co-sharer of it will be considered owner in every inch of the joint property according to the ratio of his share in the khata. While forming this view, I have to my credit judgments in the cases of Azam Khan Versus Azad Khan and 6 others (PLJ 1986 Lahore 499), 1998 CLC 2006, Ali Gohar Khan versus Sher Ayyaz and others (1989 SCMR 130), and Atta Muhammad Versus Sahibzada Manzoor Ahmad and others (1992 SCMR 138).
Scan of record and judgments passed by Respondents Nos. 12 and 13 revealed that all the three pre-requisites for adjudging/setting aside a decree under Section 12(2) CPC were fulfilled. Besides the elements of fraud and misrepresentation on part of the petitioner and Respondents Nos. 6 to 9 qua the Court, the decree under challenge could not have been passed, as noted above thus, the same was also without jurisdiction. Above all, no prejudice to the petitioner has been caused through the impugned order as he will get the decree again to the extent of share of Respondents Nos. 6 to 9, in case of his success to prove this entitlement, thereto.
For the reasons noted above, none of the Respondents Nos. 12 and 13 committed any illegality amendable to Constitutional jurisdiction of this Court. Even otherwise, a lawful decision within the ambit of conferred jurisdiction, cannot be substituted on this petition which being devoid of any merit is dismissed in limine.
(Rafaqat Ali Sohal) Petition dismissed.
PLJ 2006 Lahore 766
Present: Muhammad Muzammal Khan, J.
Mst. NAZIRAN BIBI--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, MIANWALI and 2 others--Respondents
W.P. No. 19402 of 2005, decided on 24.1.2006.
Guardian and Wards Act, 1890 (VIII of 1890)--
----S. 25--Constitution of Pakistan (1973), Art. 199--Custody of minor daughter--Mother and father of minor having been separated by divorce were living apart--Both claimants i.e. mother and father of minor had entered into their respective second marriages--Father of minor was admittedly serving in Army where he had to perform his full time duty and he was periodically transferred from one cantonment to another--In absence of father, grandmother of minor was to look after minor, however, she was ill, aged and could not look after minor--Step mother could not be relied upon to take care of minor--Petitioner/mother's second husband was closely related to minor besides being from same brother hood--Lap of mother is the best school for growing child and no one else can look after welfare of minor as compared to woman who had given birth to child--Minor is of four years age and from her birth is living with her mother and thus, must have developed deep association/ attachment with her--Snatching of minor's custody from her mother in such tender age and entrustment to step-mother could not be justified--Evidence on record revealed that welfare of minor was being best served while her living with her mother as compared to respondent who due to his service remains out of house and was not in a position to look after affairs or well being of minor--Appellate Court's judgment handing over custody of minor to her father was thus, not warranted and was declared to be void and non-existence in the eye of law--Trial Court's judgment handing over custody to petitioner mother being in accordance with law was thus, restored. [Pp. 768 & 769] A & B
PLJ 2000 SC 1094; PLJ 2003 Lahore 641; 2004 CLC 160; NLR 1994 Civil 4 and PLJ 2000 Peshawar 242 ref.
Mr. Zafar Iqbal Malik, Advocate for Petitioner.
Rana Muzaffar Hussain, Advocate for Respondents.
Date of hearing : 24.1.2006.
Order
Instant Constitutional petition challenged the appellate judgment/order dated 7.10.2005 to be declared illegal, void and of no legal consequence whereby custody of the minor daughter of the petitioner was ordered to be handed over to father (Respondent No. 2) by reversing the orders of the learned Guardian Judge dated 13.5.2005.
Succinctly, relevant facts are that Respondent No. 2 entered into a tie of marriage with the petitioner, which led to birth of a daughter Mst. Robina on 11.12.2001. Relations between spouses did not remained cordial and resulted in decree for dissolution of marriage on suit by the petitioner, vide judgment/decree dated 26.8.2002 maintenance allowance, was also awarded to the minor daughter of the petitioner at the rate of Rs. 1,000/- per month. Respondents Nos. 2 and 3 filed an application under Section 25 and Guardian and Wards Act, before the learned Judge Family Court, Mianwali averring that the petitioner has solemnized the second marriage with person within the prohibitory degrees of the minor who is also sick and that petitioner did not permit their meetings with the minor.
The petitioner being respondent contested the custody application filed by Respondent Nos. 2 and 3 wherein she asserted that Respondent No. 2 cannot take better care of the minor on account of his heavy work in the Army, where he is employed and Respondent No. 3 being of an old age with ill health, is not in a position to look after the welfare of the minor. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Guardian Judge who was seized of the matter, after doing the needful dismissed the application of Respondents 2 and 3 vide his judgment and decree dated 13.5.2005.
Respondent Nos. 2 and 3 aggrieved of the decision of the learned Guardian Judge, filed an appeal before the learned Additional District Judge where they succeeded as their appeal was accepted and by reversing the order of the learned Guardian Judge, custody of the minor was ordered to be handed over to them. Petitioner, thereafter, filed instant Constitutional petition wherein respondents in response to notice by this Court have appeared and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Undeniably, both the petitioner and Respondent No. 2 have entered into their respective second marriages. It is also not disputed that Respondent No. 2 is serving in Army as a Soldier where he has to perform full time duties. Respondent No. 2 is also not permanently stationed at one place of his posting and constantly remains under transfer from one Cantonment to another. In absence of respondent No. 2 his mother will look after the affairs of the minor who besides being of elderly age, is not keeping good health. As against this, petitioner's second husband is real brother of her stepmother and in this manner is closely related to the minor besides being from the same brotherhood. Besides the lawful reasons which weighed with the learned Guardian Judge while refusing the custody of the minor to the Respondent Nos. 2 and 3, it is known to every body that lap of real mother is the best school for a growing child, and no one else can look after the welfare of the minor as compared to the woman who had given birth to the child. The minor at the present is said to be of four years age and is living since her birth with the petitioner and thus must have developed deep association attachment with her. Snatching of her custody from her mother in such a tender age and entrustment to a stepmother though in the supervision of paternal grant mother, could not be justified on the touch stone of any canon known for administration of justice.
Petitioner might have lost her right of "Hanazat" to retain custody of her minor daughter, on account of her second marriage but earlier to deprive her the supervision of her own blood, welfare of the minor has to be looked into which certainly lies in keeping her in custody of the petitioner. Reference in this behalf can conveniently be made to the judgments in the cases of Mst. Firdous Iqbal versus Shifaat Ali and others (PLJ 2000 SC 1094) Syed Tahsen Razi versus Dr. Farhana Shaheen and another (PLJ 2003 Lahore 641), Muhammad Aslam versus Additional District Judge and others (2004 CLC 160) and Muhammad Nafees Abbas Versus The Guardian Judge Lahore etc. (NLR 1994 Civil 4) and Mst. Shaheen Versus Jafar Khan and another (PLJ 2000 Peshawar 242).
Scan of evidence revealed that welfare of the minor was being best served while her living with mother/petitioner, as compared to Respondent No. 2 who due to his service remains out of house and was not in a position to look after the affairs or well being of the minor.
For all the reasons noted above, the impugned appellate judgment by Respondent No. 1 being contrary to law, evidence on the file and opposed to the welfare of Mst. Robina Bibi, is declared to be void and non-existence in the eye of law being not sustainable. Instant petition is accordingly accepted and the appellate judgment/decree dated 7.10.2005 passed by the learned Additional District Judge Mianwali is adjudged as nullity with the result that judgment/order dated 13.5.2005 by the learned Guardian Judge will stand revived. There will be no order as to costs.
(Aziz Ahmad Tarar) Appeal accepted.
PLJ 2006 Lahore 769 [Multan Bench Multan]
Present: Maulvi Anwarul Haq, J.
Mst. KANWAL IRAM--Appellant
versus
Dr. HABIBULLAH--Respondent
F.A.O. No. 223 of 2005, decided on 21.2.2006.
Cantonment Rent Restriction Act, 1963 (XI of 1963)--
----S. 17(4)(b)-Utility of building--Bonafide requirement--Application for ejectment was filed--Requirement for personal use and impairment in value and utility of building were bona fide--During pendency of the ejectment petition shop was vacated and that has since been rented out--Petitioner did not say single word in her evidence that the shop was not suitable for her need or as to why it rented out when it was in her possession--Held: It was prerogative of the petitioner to select the shop for occupation and tenant could not give dictation--Contention was true but where all the shops were occupied choice still be available but in case of a vacant shop the petitioner was required by law to prove that vacant shop was not suitable for her requirement--F.A.O. dismissed due to lack of evidence. [P. 770] A & B
Ch. Ayyaz Muhammad Khan, Advocate for Appellant.
Date of hearing : 21.2.2006.
Order
On 12.9.2002, the appellant filed an application against the respondent for his ejectment from a building located in Multan Cantonment. The grounds for ejectment were bona fide requirement for personal use and impairment in value and utility of the building. The respondent filed written statement on 4.1.2003. He denied the said allegations and specifically stated that a shop owned by the petitioner is vacant and she had put up a banner for letting it out. Issues were framed. Evidence of the parties was recorded. Learned Rent Controller dismissed the application vide order dated 22.10.2005.
Learned counsel for the appellant contends that the learned Rent Controller has passed an order which is against law and facts inasmuch as he has observed that the appellant did not mention the factum of said vacant shop in the petition. According to him upon on over all reading of the evidence requirement of Section 17(4)(b) of the Cantonment Rent Restriction Act, 1963 stands fulfilled and his client was entitled to the grant of ejectment order.
I have gone through the entire records, copies where of have been appended with the FAO, with reference whereof, learned counsel has made his submissions. Now as noted by me above, a specific plea was taken by the Respondent in his written statement filed in Court on 4.1.2003. The appellant lady entered the witness-box as A.W.1 on 20.9.2003. She opted to remain silent with reference to the said vacant shop in the examination-in-chief. In her cross-examination she admitted that during the pendency of the ejectment petition a shop was vacated and that the same has since been rented out. There is not a word in this statement that the said shop was not suitable for her need or as to why it was rented out when it was in her possession. Similarly her witness Gulzar Hussain A.W. 2 also admitted the said fact. He in fact admitted the entire plea of the respondent thus the shop was vacant and a banner was displayed for letting it out and it was then so let out.
Now learned counsel insists that it was suggested to the respondent as RW-1 and he admitted that the size of the said shop was smaller than the shop in question.
I have examined the statement of the said R.W. 1 and I find that nothing turns on the said contention of the learned counsel reason being that it was primarily for the landlady to have proved the ingredients of the said Section 17(4)(b) of Cantonment Rent Restriction Act, 1963.
Learned counsel for the petitioner then contends that it is the prerogative of the landlady to select the shop or occupation and the tenant cannot give dictation. The contention is true but to my mind it would apply where all the shops are occupied. Choice would still be available but in case of a vacant shop the landlady is required by law to prove or at least to state that the vacant shop is not suitable for her requirement. This all important evidence or even the statement of the landlady is missing in the present case. The FAO is without any force and is accordingly dismissed in limine.
(Rafaqat Ali Sohal) F.A.O. dismissed.
PLJ 2006 Lahore 771
Present: Muhammad Jahangir Arshad, J.
GHULAM NABI and another--Petitioners
versus
MANAK and another--Respondents
Civil Revision No. 273 of 1997, heard on 21.9.2005.
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Performance of Talabs--Held: Question of fulfillment of requisite Talabs was a question of fact and same having been recorded by Courts below against the petitioners and in absence of any misreading or non-reading of evidence, same could not be declared as without jurisdiction--Revision dismissed. [P. 773] A
2005 SCMR 1201; PLJ 2002 Lah. 1901 & 2000 CLC 409, ref.
Sh. Naveed Shehryar, Advocate for Petitioners.
Mr. Allah Bukhsh Gondal, Advocate for Respondents.
Date of hearing : 21.9.2005.
Judgment
This civil revision is directed against the judgment and decree dated 21.11.1996 passed by learned Additional District Judge, Mandi Bahau Din dismissing petitioners' appeal against the judgment and decree of the learned Civil Judge, Mandi Bahau Din, whereby pre-emption suit filed by the petitioners was dismissed on 22.12.1993.
Issues:
Whether the plaintiffs have right of pre-emption , if so, its effect? OPP.
Whether the plaintiffs had fulfilled the requirement of the Talabs before bringing this suit? OPP.
Whether the ostensible price of Rs. 150,000/- was actually paid? OPD.
If the above issue is not proved then what was the market value of the suit land at the time of its sale? OPD.
Whether the suit is not maintainable? OPD.
Whether the suit has been incorrectly valued for the purposes of Court fee and jurisdiction, if so, what is the correct valuation? OPD.
Whether the defendants have incurred expenditure on mutation etc, if so, how much and to what effect? OPD.
Relief.
The petitioners in their evidence produced Ghulam Nabi one of the petitioners as PW-1 and also got recorded the statements of Khizar Hayat PW-2 and Bati PW-3 and closed their evidence by producing documents Ex. P-1 to Ex. P-4. In rebuttal, Khushi Muhammad one of the respondents appeared as DW-2 and produced Manak DW-2, Rehmat Khan DW-3. On conclusion of the trial, the learned trial Court vide judgment and decree dated 22.12.1993 besides holding that petitioners had a right of pre-emption qua sale in dispute and that the land in dispute was in fact sold for a sum of Rs. 1,50,000/- dismissed the suit on the basis of its findings on Issue No. 2 regarding non-fulfillment of requisite Talabs. Against the said judgment and decree, the petitioners filed an appeal but the same was also dismissed on 21.11.1996, hence this revision.
It has been argued by learned counsel for the petitioners that the findings of two Courts below suffer from misreading and non-reading of evidence. His contention is that the reasons given by the two Courts below while recording findings on Issue No. 2 are to more sustainable in view of the latest pronouncement of the Apex Court in the case "Azmatullah through L.Rs versus Mst. Hameeda Bibi and others" (2005 S.C.M.R. 1201) and "Allah Bakhsh and another versus Falak Sher" (2004 S.C.M.R. 1580).
On the other hand, learned counsel for the respondents has argued that the petitioners have miserably failed to prove the essentials of Talab-i-Muwathibat and unless the said Talab is specifically proved, the remaining two Talabs i.e. Talab-i-Ishhad and Talb-i-Khusumat, even if proved, are of no help to the petitioners and to this effect, he has placed reliance on the case "Muhammad Khan versus Muhammad Arif" (PLJ 2002 Lahore 1901). He has further argued that the evidence produced by the petitioners on the performance of Talb-i-Muwathibat is not only vague and ambiguous but is also not confidence inspiring.
Heard. Record perused.
There is no cavil to the contention of learned counsel for the petitioners that after the judgment of Hon'ble Supreme Court of Pakistan in the case reported in (2000 S.C.M.R. 329), the pre-emptors are not required to pinpoint specific time and place about making of Talab-i-Muwathibat and other details, in the plaint, as earlier held by the Apex Court, yet at the same time the fact whether the plaintiff infact succeeded in proving the requisite Talabs can also not be lost sight by the Court while deciding issues of Talabs in the context of evidence led by the parties, otherwise, incorporation of requirement of performance of Talabs in Punjab Pre-emption Act, 1991 through Section 13 would become redundant. On the point of Talabs the statement of Ghulam Nabi one of the petitioners is neither confidence inspiring nor fulfills the legal requirements, even the same is silent as to when the petitioners got first information about the sale in question and when talab-i-Muwathibat was made. Again Ghulam Nabi PW-1 has referred Khizar Hayat who informed him about the sale in question, whereas, Khizar Hayat while appearing as PW-2 has referred the source of his information to be one Safi who has not been produced. Even the notice Ex. P-1 allegedly sent by the petitioners to the respondents, does not sufficiently disclose the necessary particulars of Talab-i-Muwathibat. The learned two Courts below in their judgments although have laid stress for not disclosing minute particulars of making Talab-i-Muwathibat as was the law declared by the Hon'ble Supreme Court at that time, yet the same cannot be thrown away merely on the ground of law declared by the Apex Court referred to above, subsequent to the decisions of the two Courts below. The law declared by the Hon'ble Supreme Court in the cited authorities, also do not hold that requirements of Talabs must be held as fulfilled, even without any evidence. Since the question of fulfillment of requisite Talabs on the part of the petitioners, is a question of fact and same having been recorded by the two Courts below against the petitioners and in the absence of any misreading or non-reading of evidence having been pointed out by the learned counsel for the petitioners, I am not persuaded to declare the same as without jurisdiction. The learned counsel for the respondents has therefore, rightly argued that unless Talab-i-Muwathibat is established, second two Talabs i.e. Talab-i-Ishhad and Talab-i-Khushumat, even if proved would be of no help to the petitioners, as held by this Court in Fateh Muhammad's case (2000 C.L.C. 409).
For what has been discussed above, I find no merit in this petition and the same is hereby dismissed.
(Javed Rasool) Petition dismissed.
PLJ 2006 Lahore 773
Present: Mian Saqib Nisar, J.
MUHAMMAD BIBI--Petitioner
versus
PROVINCE OF PUNJAB through COLLECTOR GUJRANWALA and others--Respondents
C.R. No. 471-D of 2000, heard on 27.1.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----Ss. 115 & 9--Jurisdiction of civil Court--Extent--Question of jurisdiction was not decided by Courts below in accordance with law--Prior allottee although had the right to challenge order in question, in settlement hierarchy, however, order in question, being void in nature, could always be assailed before civil Court which is a Court of ultimate inherent civil jurisdiction and jurisdiction of civil Court does not stand ousted by any enactment--Judgments and decrees of Courts below were modified to the extent that Civil Court had jurisdiction to adjudicate upon void orders. [P. 779] E
(ii) Limitation Act, 1908 (IX of 1908)--
----S. 3--Civil Procedure Code (V of 1908), S. 115--Refugee from Jammu and Kashmir--Allotment in favour of such refugee for his and family's maintenance--Property allotted for such purpose goes out of compensation pool and exclusively vests in Ministry for Azad Jammu and Kashmir--Any allotment made thereafter, by settlement authorities treating the same to be evacuee property, would be without jurisdiction, void and of no legal effect. [P. 777] A
(iii) Void Order--
----Void order not challenged within period of limitation--Effect--Allotment in question had been made in favour of deceased predecessor of plaintiff for maintenance of his family--In presence of such allotment, said property could not have been allotted in favour of subsequent allottee--Subsequent allottee sold land in question, in favour of third person who took land in question into his possession through revenue authorities--Subsequent allotment was although void, yet prior allottee despite his knowledge of subsequent allotment did not challenge such allotment or its sale in his life time--Plaintiff being daughter of deceased challenged subsequent allotment after about 24 years of such allotment despite knowledge and transfer of possession in favour of vendee--Suit of plaintiff was hit by law of limitation--Allotment in favour of plaintiff's father was not heritable, therefore, she had no locus standi to challenge the same--Void order of allotment in favour of subsequent allottee and the same having been given due effect in relevant record of rights, plaintiff being third person cannot choose its own time and venue to challenge that order especially after period of limitation--Order of allotment in question having been passed in 1966, suit filed in 1990 i.e., after 24 years of such allotment was not maintainable and was rightly dismissed by Courts below on ground of bar of limitation. [Pp. 777, 778 & 779] B, C & D
PLD 1991 SC 391; PLD 1979 SC 985; PLD 1977 Lahore 202; 2003 SCMR 286; 1986 CLC 2095; 2002 SCMR 1330; PLD 1997 SC 397; PLD 1975 BJ 29; 1983 SCMR 168 and 1973 CLC 120, ref.
Mian Ghulam Rasool, Advocate for Petitioner.
Rana Amir Ahmad Khan, A.A.G for Respondent No. 1.
Mr. Sher Zaman Khan, Advocate for Respondent No. 2.
Sh. Umer Draz, Advocate for Respondents Nos. 3 to 5.
Date of hearing : 27.1.2006.
Judgment
The suit for the declaration, filed by the petitioner, challenging the allotment of the land in question in favour of Respondent No. 2 Ramzan and claiming herself to be entitled to the allotment, has been dismissed by the learned trial Court vide judgment and decree dated 10.2.1998. Appeal filed by the petitioner has also failed on 7.12.1999.
The brief facts of the case are, that the petitioner, who is the daughter of one Hassan Muhammad, on 27.1.1990, filed a suit for the declaration claiming that the land bearing Khasra Nos. 617, 855, 856, 857, 917 and 918 measuring 44-Kanals and 8-Marlas, situated in Mauza Daira Shah Jamal, Tehsil Noshehra Virkan District Gujranwala, was allotted not only in the name of Hassan Muhammad, her predecessor, but also Mst. Hakam Bibi, Abdul Ghani and herself for their maintenance allowance being the refugees from the Jammu & Kashmir, however, without cancelling the allotment, out of the said land, the land measuring about 33-Kanals (suit land) has been illegally and unlawfully allotted to one Razman, as an evacuee property by the settlement department, against his claim vide RL-II No. 245 dated 3.10.1966, who has further sold the said land in favour of Muhammad Yaqoob vide Mutation No. 53 dated 31.3.1969. Thus, she challenged the above two transaction being void, and also sought the decree of her entitlement for the transfer of the proprietary rights of the suit property in her favour.
The suit was contested by the respondents. Respondent No. 2 defended the validity of the transfer of the land in question to his predecessor by the competent authority, and according to him this was followed by a lawful sale in his favour; besides, the pleas of limitation and the waiver on the plaintiff's part, were also set out in the written statement. Accordingly, the learned trial Court, framed the following important issues:--
Whether the suit is time barred? OPD
Whether this Court has no jurisdiction to entertain that suit? OPD
4-A. Whether Hassan Muhammad predecessor-in-interest of plaintiff has waived his right and executed Iqrarnama in this respect? OPD No. 3.
After recording of the evidence, the learned trial Court, by returning its findings on all the above issues against the petitioner and in favour of the respondents, dismissed the suit. It was held that the suit was barred by time, as the allotment of the land in favour of Ramzan made in the year 1966 has been challenged by the plaintiff/petitioner in the year 1990 and that too after the death of Hassan Muhammad, who was the original allottee of the property. It was further found that as Hassan Muhammad has not challenged the disputed allotment/transfer during his lifetime, therefore, the petitioner as his successor could not impugn the same. The issue of jurisdiction has also gone against the petitioner and therefore, her suit was dismissed. Aggrieved of this judgment and decree, the petitioner preferred an appeal, but without any success and the findings of the trial Court upon the above-mentioned issues have been maintained, hence this revision.
Learned counsel for the petitioner, by relying upon the judgments reported as Ghulam Muhammad and another vs. Ahmad Khan and another (PLD 1991 SC 391), Jan Muhammad and others vs. Sher Muhammad and another (PLD 1979 SC 985), Mst. Sakina Bibi and another vs. Mamla and 2 others (PLD 1977 Lahore 202), has argued that the property in dispute was not allotted exclusively in the name of Hassan Muhammad, as the maintenance allowance being a refugee from the Jammu & Kashmir, but the other members of his family as well, including Muhammad Bibi, the petitioner; thus, once the property had been so allotted, it becomes the property of the Ministry of Jammu & Kashmir, meant for transfer to a refugee, with the legal consequences that it stood excluded from the compensation pool and the settlement authorities were left with no power to make the allotment of such land as an evacuee property. The learned counsel has further submitted, that the Courts below have misread the record and misapplied the judgment reported as Allah Rakhi vs. Sughra Bibi and others (1986 CLC 2095), while holding that the land was allotted only to Hassan Muhammad and that it is not heritable by the petitioner and therefore, the petitioner could not maintain a cause of action for the suit after the death of her father, to whom the allotment was originally made; he argued that the allotment, as is clear from the record, was also in the name of Muhammad Bibi and therefore, notwithstanding the death of Hassan Muhammad, she had the independent right for the transfer of the property to her and could also challenge the allotment of Ramzan and further transfer in favour of Yaqoob.
Confronted with the above, learned counsel for Respondent No. 2 has argued that the issues of limitation and jurisdiction have been rightly decided against the petitioner; in this behalf; there is a concurrent finding of facts, which is not defective on account of any misreading and non-reading of the evidence or for any other factual or legal infirmity, thus, in the revisional jurisdiction, such concurrent findings of facts, cannot be interfered. Reliance in this behalf has been placed upon the judgment reported as Muhammad Bakhsh vs. Ellahi Bukhsh and others (2003 SCMR 286). It is further argued that the issue of limitation had been decided against the petitioner by the two Courts below and such finding has not been assailed in the revision petition as no ground of attack has been set out in the petition. The learned counsel submits that the judgment reported as 1986 CLC 2095 is squarely applicable to the case in hand, because the allotment of the land through the order dated 20.2.1957 is only vis-a-vis Hassan Muhammad; Hassan Muhammad has never challenged the allotment of Ramzan and the sale in favour of Respondent No. 2 during his lifetime, therefore, after his death, the present petitioner has no right or locus standi to assail the same; the learned counsel submits that PW-1, the attorney of the petitioner, in his statement has admitted that the land was only allotted to Hassan Muhammad and not to her.
Heard. As regards the question about the transfer of the allotment in favour of Ramzan is concerned, it is established on the record that Hassan Muhammad was the prior allottee of the suit land measuring 44 Kanals and 8 Marlas, which was given to him for his and the maintenance of his other members of the family, being the refugee from the Azad Jammu & Kashmir. Therefore, as per the ratio of the judgments cited by the learned counsel for the petitioner, referred to in Paragraph No. 4 of this judgment, it is settled that the property once allotted for the above purposes, goes out of the compensation pool and exclusively vests in the Ministry for the Azad Jammu & Kashmir and thereafter, any allotment made by the Settlement Authorities, treating it to be an evacuee property, is without jurisdiction; shall be void and of no legal effect.
Anyhow, despite the above, the important questions to be examined in this case however, are:--
(i) The legal effect of non-assailment of the allotment/transfer in favour of the respondents by Hassan Muhammad;
(ii) Whether Muhammad Bibi was a co-allottee and if not, whether the allotment of Hassan Muhammad was heritable;
(iii) Even if, the allotment order in favour of Ramzan was void, it should have been challenged within the prescribed period of limitation or not;
(iv) Whether the issue of limitation going against the petitioner, has not been assailed in the present revision petition, and its effects.
I find it expedient to decide the first two questions together. Though in the plaint, it is stated by the plaintiff that the allotment had been made in favour of Hassan Muhammad as also the others including her, but from the record, particularly the allotment order, it transpires that it is only Hassan Muhammad, who was the allottee of the property and the names of his other family members were incorporated perhaps to assess the needs for determining the quantum of the land required for the allowance. Even otherwise, the attorney of Muhammad Bibi, while appearing as PW-1, in clear and unequivocal terms has stated that Hassan Muhammad was the allottee and that Muhammad Bibi is agitating her claim on the basis of the allotment of her father; this is also the finding of the two Courts below that Muhammad Bibi is not the allottee and such findings have not been assailed in the revision petition. From all the above factors, it is answered that Muhammad Bibi was not the co-allottee and, therefore, in accordance with the law laid down in the judgment reported as Allah Rakhi vs. Sughra Bibi and others (1986 CLC 2095 at page 2096), such rights under the allotment
are not heritable, with the legal effect that Muhammad Bibi could not competently challenge the allotment/transfer in favour of the respondents.
"Plaintiffs claiming property through A as his heirs and filed the suit in 1979, about nine years after sanction of mutation, which had already been given effect in the record of rights. Plaintiffs had no locus standi to challenge the mutation independently, for A through whom they claimed inheritance had not challenged the same during his lifetime."
challenge the order, not in the jurisdiction and hierarchy in which it is passed, but before the Civil Court, after the extinction of the requisite forms.
Therefore, despite the legal position that a void order has no legal effect and the significance, yet vis-a-vis a person who is affected on account of such order, when he comes to know of the same, he cannot be allowed to remain silent and allow the prescribed period of limitation, for challenging the order affecting his rights, to pass and thereafter to initiate a cause as per his convenience after the expiry of the limitation.
In the instant case, as has been mentioned earlier, the basic order of allotment was passed in favour of Ramzan in the year 1966, who in the year 1969, transferred the land through sale in favour of Yaqoob, but for long 24 years the affected party never challenged the order through any proceedings and allowed the necessary change in the record of rights to remain intact. It is also the finding of the two Courts below that when the sale was made in favour of Yaqoob, the possession of the land was delivered to the purchaser. Considering this to be an overt act on the part of Ramzan and Yaqoob in asserting their allotment and transfer and denying that of Hassan Muhammad, even on the basis of the void order, the period of limitation commenced from that point of time. My view, that the affected party has to bring an action within the prescribed period of limitation, after attaining the knowledge of a void order, is fortified by the judgments reported as Muhammad Raz Khan vs. Government of N.W.F.P. and another (PLD 1997 SC 397), Sayed Sajid Ali vs. Sayed Wajid Ali (PLD 1975 Baghdad-ul-Jadid 29), Muhammad Ismail vs. Abdul Rashid and 2 others (1983 SCMR 168) and Riasat Ali and 2 others vs. Mahmood Ahmad (1993 CLC 120). Therefore, I am not inclined to upset the findings of the Courts below on the issue of limitation, which is a mixed question of law and facts and on factual premises, it has been held that the petitioner was aware of the allotment/transfer and had not challenged the same for long 24 years.
As regards the issue of jurisdiction is concerned, I am of the considered view that the same has not been decided by the two Courts below in accordance with law. Obviously, Hassan Muhammad had the right to challenge the order in the settlement hierarchy, but at the same time, order being void in nature could always be assailed before the Civil Courts, which are the Courts of ultimate inherent civil jurisdiction and under the settlement and rehabilitation laws, neither any projection has been provided to such orders nor the jurisdiction of the Civil Court is ousted. Consequently, the findings of the two Courts below on Issue No. 3 are hereby reversed and it is held that the Civil Court possessed the jurisdiction to adjudicate the matter.
In the light of above, this petition has no merits and is hereby dismissed.
(A.A.) Revision dismissed.
PLJ 2006 Lahore 780 [Multan Bench Multan]
Present: Sheikh Hakim Ali, J.
Syed MANZOOR HUSSAIN--Petitioner
versus
A.D.B.P, BRANCH MUZAFFARABAD through its MANAGER and another--Respondents
Writ Petition No. 2455 of 2002, decided on 23.9.2004.
Constitution of Pakistan 1973--
----Art. 199--Constitutional jurisdiction--Claim of Bank--Challenged by loanee--Held: Incentive package to the loanees Bank had invited the loanees to apply--Acceptance of such offer and payment of amount in its compliance had created a valuable vested right in the loanees from which bank was not authorized to deviate by bringing out a clarification circular especially when the offer had been accepted by the loanees--Bank could not be allowed to demand claims of further amount from the petitioner--Bank's claim was declared as illegal and unlawful. [Pp. 781 & 782] A & B
Sardar Muhammad Akram Khan Patafi, Advocate for Petitioner.
Mr. Waseem-ur-Rehman, Advocate for Respondents.
Date of hearing: 23.9.2004.
Order
Through this writ petition Syed Manzoor Hussain, the petitioner, who had obtained a loan facility of Rs. 2,51,000/- under A/c No. 103434 in the year 1992-93 has challenged the claim demand being made by respondent-Bank, on the basis of a letter/Circular No. RD/8/2000 dated 4.12.2000 as he had fulfilled all the conditions of relief package, as publicised through Circular No. RD/9/2000 dated 17.10.2000.
The learned counsel appearing on behalf of the petitioner states that the petitioner, who had obtained the above mentioned loan from Respondent No. 1 had already re-paid an amount of Rs. 2,57,200/- against the loan amount and was defaulter of two installments uptill 17.10.2000. In the meantime a Circular No. RD/9/2000 dated 17.10.2000 was advertised by the Agricultural Development Bank of Pakistan in which clause (ii) had offered to all the loanees, who had defaulted in the payment of two or more installments on 16.10.2000 to be eligible to get the benefit of relief package. As the case of the petitioner had fallen within that clause, therefore, the petitioner had applied for that before the prescribed period to Respondent No. 1, who had after holding the case of the petitioner to have been encompassed by that relief package, received an amount of Rs. 27,104/- through Receipt No. 16 dated 20.10.2000 and in the Account Books Registers of the Bank closed the account of the petitioner but afterwards the respondents have initiated proceedings for the recovery of amount considering due against the petitioner as a defaulted loanee. As per learned counsel, the respondents have got no authority power to claim any amount from the petitioner after the payment was made and the account was closed in accordance with the circular of 17.10.2000.
Learned counsel appearing on behalf of respondents has opposed the contention of the learned counsel for the petitioner by stating that after the issuance of circular dated 17.10.2000, the Agricultural Development Bank of Pakistan had issued another circular/letter of 17.10.2000 explaining the earlier circular on 4.12.2000 as noted above. According to the learned counsel the instalment, which was to be paid up to 7.7.2000 was not to be considered as default in the installment dues as per circular/letter of 4.12.2000. So, according to the respondents, the case of the petitioner had not fallen with the relief package of 17.10.2000 and so the petitioner was bound to pay the amount, which according to the respondents had become to the extent of Rs. 2,49,590/- up to 30.6.2004.
After considering the arguments of both the learned counsels and the scanning of the record my conclusions are based on the following reasons. By advertising a relief/incentive package to the loanees on 17.10.2000, through the circular (noted above) the respondent Bank has invited the loanees to apply for that. This was an offer made by the respondent/Bank to the loanees, the acceptance of this offer and payment of the amount in compliance of that offer had created a valuable vested right in the loanee, from which the package/incentive Bank, was not authorized/empowered to deviate through a mechanism of bringing out a clarification circular and making the offer acted upon to be ineffective especially when the offer was accepted by the loanee. It may be pointed out here that the loanee had accepted the offer made through circular/letter dated 17.10.2000 indicated above and had acted upon it. It was a representation upon which the loanee had changed his position, and had paid the amount within the prescribed period according to that relief package. The amount having been accepted by the Bank, and the case of the loanee having admitted to have fallen in the relief/incentive package of 17.10.2000, the bank cannot resile from that position and cannot be permitted to turn the turtle and adopt a new version or to demand or make any other claim from the petitioner contrary to that relief package. There is no ambiguity in clause (ii) of circular of 17.10.2000 in which the date of 16.10.2000 was clearly mentioned and it was provided that the defaulter of two or more installments before that date would be eligible. The latest circular which has brought in the field on 4.12.2000 in fact has deprived the persons, who had acted upon the earlier letter (offer) of the Bank and had got a valuable vested right after they had fulfilled/completed the representation of the Bank. Therefore, the circular/letter dated 4.12.2000, referred to above which has got the effect of nullifying the earlier contract made between the parties cannot be permitted to apply on those loanees whose case was held to fall within the circular of 17.10.2000 and was acted upon. In such case, the Bank cannot be allowed to demand claim any more amount from the petitioner. Therefore, the claim for more amount of the respondent/Bank to the above-mentioned loan account is declared illegal, unlawful and the respondent Bank is directed to close the account of the petitioner by redeeming the mortgage of the lands of the petitioner in consequence.
(Javed Rasool) Petition accepted
PLJ 2006 Lahore 782
Present: Sayed Zahid Hussain, J.
PROVINCE OF PUNJAB through SECRETARY TO GOVT. OF PUNJAB, HOME DEPARTMENT and 2 others--Appellants
versus
MUHAMMAD YASIN--Respondent
F.A.O. No. 205 of 2005, heard on 28.9.2005.
Punjab Requisition of Immovable Property (Temporary Power) Act, 1956--
----S. 6--Determination of compensation--Assailed--Held: Rate & quantum of compensation as assessed determined by ADJ i.e. at the rate of specific amount per month till handing over possession was not unreasonable, unjustified or exorbitant--However the payment of interest, as had already been held to be repugnant to injunctions of Islam, by Supreme Court in PLD 1994 SC 141, could not be sustained--Impugned order was so modified. [Pp. 783 & 784] A & B
PLD 1994 SC 141; 1994 SCMR 1488; 1993 MLD 2430 & 1986 CLC 593, ref.
Mr. Rizwan Mushtaq, Assistant Advocate General alongwith District Education Officer (W.EE) for Appellants.
Rana Pervaiz Khalid, Advocate for Respondent.
Date of hearing : 28.9.2005.
Judgment
On a petition under Section 6 of the Punjab Requisitioning of Immovable Property (Temporary Power) Act, 1956 made by the respondent, the learned Additional District Judge, Lahore has vide judgment (Award as contemplated by law) dated 12.5.2004 determined the compensation of the requisitioned property which has been assailed through this appeal by the Provincial Government.
It is stated by the learned Assistant Advocate General, Punjab and not disputed by the learned counsel for the respondent that since June 2005 the property in dispute has been vacated. Thus, the controversy at present is only in respect of the past period of compensation. According to the learned Assistant Advocate General Punjab, such compensation could only be awarded up to three years preceding the filing of petition whereas the learned Additional District Judge, Lahore has granted the compensation at the revised rates w.e.f. 6.3.1978 i.e. date of requisition. Reliance is placed upon Ashfaq-ur-Rehman v. Chaudhri Muhammad Afzal (PLD 1968 SC 230). It is contended that even the petition filed by the respondent was time barred who had been accepting Rs. 100/- per month as compensation. He has made reference to Province of the Punjab v. Amin Jan Naeem and 4 others (PLD 1994 SC 141) to contend that since provisions of Section 7 of the Act as to interest have been declared as repugnant to Injunctions of Islam and Sunna, the order of Additional District Judge is illegal. The learned counsel for the respondent has supported the impugned judgment.
The premises were occupied by a school known as Government Rubab Girls Primary School, Aziz Colony, Wandala Road, Shahdra, Lahore since 1973 which was then requisitioned for this purpose vide order dated 6.3.1978. The compensation for its use and occupation paid to the respondent was Rs. 100/- per month. Though the said compensation used to be received by the respondent yet his case is that he continued requesting for fixation of fair compensation which remained unheeded and ultimately filed petition under Section 6 of the Act on 13.10.1998. The learned Additional District Judge has after trial, recording evidence and hearing the parties determined the compensation at the rate of Rs. 500/- per month for the period commencing from 6.3.1978 to 9.9.2000 and from 10.9.2000 till handing over of possession at the rate of Rs. 2000/- per month. The compensation so fixed has been ordered to be paid with interest. The rate and quantum of compensation assessed and determined by the learned Additional District Judge in the light of the evidence that came before him, cannot be regarded either unreasonable, unjustified or exorbitant. His appraisal and appreciation of the evidence does not suffer from any illegality.
The only issue that emerges is about the period for which the compensation at the rate of Rs. 500/- is to be paid and the direction about the payment of interest. The reliance of the learned Assistant Advocate General, Punjab on Ashfaq-ur-Rehman's case (supra) to contend that such compensation could be granted at the most for a period of three years preceding the filing of petition before the Court is inapt in view of the observations in Government of the Punjab through Secretary, Education, Lahore v. Shahida Begum (1994 SCMR 1488) wherein it was noted that "there is a lot of difference in payment of rent by tenant and payment of compensation by the Requisitioning Authority. The Authority did not at any stage apply its mind to the present controversy or the assessment of the compensation as required by Rules 8 and 9. Therefore, mere payment of rent which was paid prior to requisition cannot be treated as compensation after the requisition for the use and occupation of the property." It may be observed that in the precedent case though the petition was filed in the year 1991 for determination of compensation of the requisitioned property yet the revised compensation was ordered to be paid w.e.f. The year 1977 i.e. The date of requisition of the property. In Province of Punjab v. Mst. Hanifan (1993 MLD 2430) also while making determination of the compensation, the revised compensation was ordered to be paid from the date of requisition of the property and the mere fact that the owner had been receiving the amount lesser than that before filing of the petition was treated as no bar for agitating his right to have fair amount of compensation fixed, assessed and determined. Reference may also be made to Sh. Muhammad Shafi v. The Province of Punjab and another (1986 CLC 593). There is thus no fault with the order passed by the Additional District Judge in respect of either making determination and assessment of the compensation on the basis of the material that came before him nor his direction qua payment of the enhanced compensation w.e.f. the date of requisition of the property.
The contention of the learned Assistant Advocate General, Punjab as to the delayed approach of the respondent for determination of the compensation of the requisitioned property cannot be given effect to inasmuch as neither such a plea was taken before the lower Court nor was any issue even claimed/framed qua the same. Since in the context of the controversy the question of limitation is a mixed question of law and fact dependent upon factual assertions, evidence and findings it cannot be countenanced for the first time in the appeal.
The contention of the learned Assistant Advocate General, Punjab however to the extent of the direction of the learned Additional District Judge qua the payment of interest has substance inasmuch as it had already been held by the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan in the case of Province of the Punjab v. Amin Jan Naeem and 4 others (PLD 1994 SC 141) that such provision i.e. Section 7 of the Act was repugnant to injunctions of Quar'an and Sunna which judgments still holds the field. The payment of interest, thus, cannot be upheld.
In view of the above, this appeal is dismissed with the modification that interest as ordered by the learned Additional District Judge, Lahore in his impugned judgment will not be payable to the respondent. No order as to costs.
(Javed Rasool) Order accordingly.
PLJ 2006 Lahore 785
Present: Ch. Ijaz Ahmad, J.
SHAHEEN--Applicant
versus
MUHAMMAD ALI--Respondent
Transfer Application No. 503-C of 2004, decided on 6.9.2005.
Civil Procedure Code, 1908 (V of 1908)--
----S. 24--Transfer of civil suit--Inconvenience of ladies--Petitioner/lady resident of Lahore, being delegate of the right of divorce, sent a notice of talaq to respondent/husband--Respondent in a counter blast filed a civil suit against her in the Civil Court, Rawalpindi--Held: Superior Courts would give due weight and benefit to the inconvenience of the ladies--Case was transferred from Rawalpindi to Lahore. [Pp. 785 & 786] A & B
Ms. Hifza Aziz, Advocate for Applicant.
Nemo for Respondent.
Date of hearing: 6.9.2005.
Order
The brief facts out of which the present petition arises are that the petitioner and respondent solemnized marriage on 2.7.2000 at Lahore in accordance with injunctions of Islam. Subsequently, the relationship between the petitioner and respondent became strained. The respondent delegated the right of divorce to the petitioner. The petitioner sent a notice to the respondent through the Chairman Arbitration Council Cantonment Board, Lahore Cantt. The divorce was effective on 29.11.2004. The respondent has filed a suit for declaration and permanent injunction against the petitioner in a counter blast in the Court of Mr. Tahir Abbas Sipra, Civil Judge/Magistrate Rawalpindi. The petitioner being aggrieved filed this application for transfer of the suit filed against the petitioner by the respondent titled "Muhammad Ali son of Muhammad Afzal vs. Mst. Shaheen daughter of Muhammad Yasin" which is pending in the Court of Mr. Tahir Abbas Sipra, Civil Judge/Magistrate Rawalpindi, on the ground that respondent has filed the aforesaid suit against the petitioner as a counter blast.
(i) Directly;
(ii) Through the agency of Senior Civil Judge concerned;
(iii) Through registered A.D.
The proceedings in the suit "Muhammad Ali son of Muhammad Afzal vs. Mst. Shaheen daughter of Muhammad Yasin" pending in the Court of Mr. Tahir Abbas Sipra, Civil Judge/Magistrate Rawalpindi, were stayed till the said date. The case was fixed on 12.1.2005, Malik Akhtar Hussain Awan, Advocate appeared and got adjournment on the ground that he had received the telephonic message from the respondent to appear in this case, which was allowed. Malik Akhtar Hussain Awan, Advocate was directed to file power of attorney and reply of the petition within fortnight with advance copy to the learned counsel of the petitioner. Thereafter the case was fixed on 1.3.2005; office was directed to fix the case after notice to the respondent directly as well as through the agency of the Senior Civil Judge concerned for 31.3.2005. The restraining order shall remain in the field till the aforesaid date with the same conditions. Thereafter the case was fixed on 18.5.2005. The aforesaid facts were highlighted in order dated 18.5.2005 and office was directed to fix this case after notice to the respondent in terms of the modes prescribed in order dated 18.5.2005 for 16.6.2005. Office sent notice to the respondent on 28.6.2005 for 6.9.2005. Despite notice no body entered appearance on behalf of the respondent. The proceedings in the suit of the respondent have already been stayed in view of the order dated 7.12.2004, which was extended off and on as is depicted from the order sheet of this Court with regard to staying of the proceedings must be in the knowledge of the respondent, copy of the same would have come on the file of his suit; therefore, I have no other alternative except to pass exparte order against the respondent. Despite repeated calls he did not enter appearance. This fact shows that respondent is not interested to oppose this application.
The learned counsel of the petitioner submits that the respondent has filed the suit inquestion against the petitioner malafide simply to harass the petitioner. In spite of the service, he did not enter appearance before this Court as is evident from the order sheet. She further submits that convenience of the lady be given due weight as compared to the men.
I have given my anxious consideration to the contents of the learned counsel of the petitioner and perused the record.
It is settled proposition of law that superior Courts will give due weight benefit to the inconvenience of the ladies as compared to the men as per law laid down by this Court in T.A. No. 324/C/2004 vide order dated 7.9.2004 after considering all the case law on the subject. For the reasons recorded in the said order of this Court, this application is allowed as prayed for. Therefore, I would direct that the suit filed by respondent titled "Muhammad Ali son of Muhammad Afzal vs. Mst. Shaheen daughter of Muhammad Yasin" suit for declaration and permanent injunction, which is pending in the Court of Mr. Tahir Abbas Sipra, Civil Judge/Magistrate Rawalpindi, be withdrawn from the said Court and entrusted to the Senior Civil Judge, Lahore, who is directed to entrust the same to the competent Court, Civil Judge/Magistrate, Lahore, who is directed to proceed in the matter after notice to the plaintiff. The petitioner is directed to appear before the Senior Civil Judge, Lahore on 17.10.2005.
With these observations the application is accepted. Copy Dasti on payment of usual charges.
(Javed Rasool) Application accepted.
PLJ 2006 Lahore 787
Present: Mian Hamid Farooq, J.
IRSHAD AHMAD KHAN--Petitioner
versus
LEARNED RENT CONTROLLER & 2 others--Respondents
W.P. No. 17108 of 2005, decided on 28.11.2005.
(i) West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Constitution of Pakistan (1973), Art. 199--Eviction from premises on ground of default and personal need--Direction to deposit the rent in case of denial of relationship of landlord and tenant--Rent Controller is no way empowered to straightaway direct a respondent to deposit the future monthly rent in exercise of the jurisdiction conferred upon the Rent Controller under S. 13(6)--In such circumstances Rent controller should frame issue regarding the existence of relationship of landlord and tenant between the parties, call upon the ejectment petitioner to prove the said issue, provide opportunity to the respondent to rebut evidence, and then to pass a reasoned order regarding fate of the said issue--Petition allowed. [P. 789] A
PLD 1991 Karachi 417, PLJ 1997 Lahore 1773, PLD 1996 Peshawar 8 ref.
(ii) Constitution of Pakistan, 1973--
----Art. 199--West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959), S. 13(6)--Order without jurisdiction--Subsequent orders--Void--On the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, whole series of such orders, together with the superstructure of rights and obligations, built upon them, must, fall to the ground, because such orders have a little legal foundation as void order on which they are founded. [P. 789] B
PLD 1958 SC (Pak.) 104, ref.
Mr. Anwaar Akhtar, Advocate for Petitioner.
Mirza Mehmood Baig and Ghazala Khan, Advocates for Respondent No. 3.
Date of hearing : 28.11.2005.
Order
Respondent No. 3's ejectment petition for the eviction of the petitioner from the questioned premises, on the grounds of default and personal need, was resisted by the petitioner, through filing the written reply, inter alia, denying the existence of relationship of landlord and tenant. The learned Rent Controller, on 29.6.2004, directed the petitioner to deposit the future monthly rent @ Rs. 10,000/- and framed the solitary issue regarding the existence of relationship of landlord and tenant between the parties. It appears that the petitioner did not comply with the terms of the said order and consequently the learned Rent Controller struck off his defence and accepted the ejectment petition, vide order dated 4.12.2004. The said order was maintained, when petitioner's appeal was dismissed by the learned appellate authority, vide judgment dated 28.7.2005, hence the present petition.
Learned counsel for the petitioner contends that the order passed by the learned Rent Controller, under Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959 and simultaneously to frame issue of relationship of landlord and tenant between the parties, is contradictory in nature and self-destructive. He adds that as the basic order is illegal and void, therefore, subsequent series of orders have no legal value. Conversely the learned counsel for Respondent No. 3 have supported the impugned orders and submitted that the petitioner failed to comply with the terms of order Section 13(6) of the Ordinance, 1959, therefore, the impugned order was rightly passed.
I have heard the learned counsel and examined the available record. Admittedly, the learned Rent Controller after the receipt of written reply to the ejectment petition, passed the rent deposit order and simultaneously framed the issue regarding the existence of relationship of landlord and tenant, vide order dated 20.6.2004. Further admittedly, the plea of the petitioner before the learned Rent Controller was that he is not tenant under the respondent. In view of the pleadings of the parties, the learned Rent Controller rightly framed the issue qua the existence of relationship of landlord and tenant, but committed grave legal error, while directing the petitioner to deposit the rent in Government Treasury. To say the least the approach of the learned Rent Controller is violative of the settled law on the subject. Undoubtedly, to establish the existence of relationship of landlord and tenant between the parties, a person claiming to be landlord has to produce documentary or/and unimpeachable oral evidence. The learned Rent Controller, without deciding issue of relationship of landlord and
tenant, has no jurisdiction to proceed with the case, unless the issue, touching the jurisdiction of the learned Controller, is decided at the first instance. In such circumstances, learned Rent Controller should frame issue regarding the existence of relationship of landlord and tenant between the parties (as has been done in the present case), call upon the ejectment petitioner to prove the said issue, provide opportunity to the respondent to rebut the evidence, if produced by the petitioner, and then to pass a reasoned order regarding the fate of the said issue. In case of denial of relationship of landlord and tenant, the learned Rent Controller, without adopting the said course of action, is no way empowered to straightaway direct a respondent to deposit the future monthly rent in exercise of the jurisdiction conferred upon the learned Rent Controller under Section 13 (6) of the Ordinance. If any judgments are needed, cases reported as Kamran Butt vs. Lt. Col. Syed Iftikhar Ahmad (PLD 1991 Karachi 417), Tariq Ali Sheikh vs. Rent Controller Mr. Khalid Nawaz Lahore and another (PLJ 1997 Lahore 1773) and Mst. Razia Begum and another vs. Senior Civil Judge (Rent Controller), Charsadda and 2 others (PLD 1996 Peshawar 8).
In the above perspective, I am of the firm view that the order dated 29.6.2004, to the extent it directs the petitioner to deposit the future monthly rent and on the basis of which subsequent orders were passed, is without jurisdiction and cannot be allowed to be sustained.
As the basic order dated 29.6.2004, upon which the entire superstructure has been built, is held to be without jurisdiction, therefore, the subsequent orders, on the basis of which the ejectment has been ordered, have also no legal value in the eye of law. It has been held in Yousaf Ali vs. Muhammad Aslam Zia and 2 others (PLD 1958 SC (Pak.) 104) that if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, whole series of such orders, together with the superstructure of rights and obligations, built upon them, must, fall to the ground, because such orders have a little legal foundation as the void order on which they are founded.
In the above perspective, the impugned orders are not sustainable and I am inclined to set aside all the orders and to remand the case to the learned Rent Controller for its fresh decision.
Upshot of the above discussion is that the present petition is allowed and the orders dated 29.6.2004 and 4.12.2004, passed by the learned Rent Controller and the judgment dated 28.7.2005, passed by the appellate authority, are declared to be illegal, without lawful authority and having no legal effect. Resultantly, the ejectment petition, filed by the Respondent No. 3, shall be deemed to be pending before the learned Rent Controller, who at the first instance shall decide the issue regarding the existence of relationship of landlord and tenant between the parties, in the manner as stated above and of course in accordance with law within a period of four months from today. Parties are directed to appear before the learned Rent Controller on 6.12.2005.
(Anwar Akhtar) Petition allowed.
PLJ 2006 Lahore 790
Present: Muhammad Muzammal Khan, J.
DISTRICT COUNCIL (District Govt.)--Appellant
versus
Ch. MUHAMMAD YASIN etc.--Respondents
R.S.A. No. 150 of 2005, decided on 5.10.2005.
Limitation Act, 1908 (IX of 1908)--
----S. 5--Punjab Local Government (Accounts) Rules, 2001, R. 39--Condonation of delay--Departmental misunderstandings, complications and non-availability of funds for purchase of court-fee stamp-papers--Explanation for delay--Scope--Grounds in support of condonation of delay prayed was restriction on issuance of temporary advance which could be made for development purposes--Requisite court-fee could not be purchased, due to difficulty of release of funds--Mere bald statement that there was restriction on release of funds was not enough to come to their rescue especially when stamp-papers appended with appeals were purchased on 16.8.2005 and inspite of it, appeals were filed after 14 days without any explanation--Even problem if any was within department of appellants and it could not be cited as valid ground for condonation of delay which was not sufficient and did not justify to deprive respondents of valuable rights which had accrued to them by lapse of appellants--Held: Law regarding condonation of delay was firmly settled by High Court that departments cannot be given any preferential treatment as against private litigants--Further held: Appellants were required to ex-plain each days delay which was lacking and without it prayer cannot be granted--Appeals dismissed as barred by limitation. [Pp. 793 to 795] A, B, C, D & E
Ch. Khurshid Ahmad, Advocate for Appellant.
Date of hearing : 5.10.2005.
Order
This judgment proposes to decide 14 time barred appeals, one in hand and the others, detailed in the schedule appended herewith. All these appeals are directed against alike judgments/decrees, raise similar questions of law/facts, arise in similar circumstances and require interpretation/ applicability of same provisions of law and are directed against same set of respondents. Condonation of delay occasioned in filing all these appeals has been prayed through applications (C.M. No. 1/2005) separately moved in each appeal, on account of some departmental misunderstandings, complications and non-availability of funds for purchase of Court-fee stamp-papers.
All these appeals challenged appellate judgments/decrees dated 17.3.2004 whereby appeals of the respondents were accepted by the learned Additional District Judge, Faisalabad and by reversing judgment/decrees of the trial Court dated 31.5.1992, their suits for declaration/specific performance were decreed.
"that if the shopkeepers are willing to purchase the land in question by private treaty on prevailing market rate, a proposal for sale may be sent to Board of Revenue through the Commissioner, Faisalabad."
In response, desire of shopkeepers and other occupants was transmitted to the Board of Revenue where they also filed their undertakings on non-judicial stamp-papers, expressing their willingness to purchase the parts of the property on the proposed price. This offer and acceptance of sale at the agreed sale price, was claimed to have matured into sale contracts in favour of the respondents who ultimately filed their respective suits for declaration and specific performance, averring their willingness to perform their part of contract by paying the price, claiming sale price at the rate of Rs. 5,00,000/- per marla with 10% surcharge and prayed from the Court that they be declared owners in possession of the suit property.
Appellants being amongst the defendants contested the suits by filing their written statements wherein it was pleaded that although District Council had shown its' willingness to purchase the land but no final decision was taken by the Province of the Punjab to sell this property to the respondents. Plea of absence of any contract between the parties was also raised, asserting that the suits by the respondents were not maintainable. Controversial pleadings of the parties, necessitated framing of issues and recording of evidence. The learned Civil Judge who was seized of the matter, after doing the needful, dismissed all the suits of the respondents vide judgment/decrees dated 31.5.1992.
Respondents being aggrieved of the decision of the trial Court, filed their respective appeals before this Court which on enhancement of pecuniary jurisdiction of learned District Judges, where remitted there and were fixed before the learned Additional District Judge where the respondents succeeded as their appeals were accepted and by reversing judgment/decrees by the trial Court dated 31.5.1992, all the suits of the respondents were decreed on 17.3.2004. Petitioners have now filed 14 time barred appeals for setting aside of appellate judgments/decrees, as noted above.
I have heard the learned counsel for the appellants and have examined the record with his assistance. Since by virtue of Section 3 of the Limitation Act, 1908 it is obligatory for the Courts to advert to the point of limitation, in the first instance, even in absence of any objection from the respondent or the office of this Court hence, I opt to decide it first. Appellate judgments and decrees in all the cases were announced on 17.3.2004 and application by the appellants for getting certified copies of the judgments/decrees in all the cases except RSA Nos. 147/2005, 151/2005 and 156/2005 were moved/applied on 21.5.2004. In these cases the certified copies were prepared on 10.6.2004 and were delivered/issued to the appellants on 16.6.2004.
In RSA No. 147/2005 appellate judgment/decree was dated 17.3.2004 but its copy was applied by the appellant on 16.8.2005 which were prepared and issued to them on 20.8.2005. In other two cases i.e. RSA No. 151/2005 and RSA No. 156/2005 appellate judgment/decree was announced on the same day i.e. 17.3.2004, certified copies of which were applied by the appellants on 23.8.2005 which were prepared and issued to the appellants on 27.8.2005.
All the 14 appeals were to be filed within 90 days under Article 156 of the Limitation Act, 1908 obviously after excluding time spent on getting certified copies of documents required to be filed along with appeals under Order XLI, Rule 1 CPC but are hopelessly time barred. The appeals in which certified copies of the judgments/decrees were issued to the appellants on 16.6.2004, those appeals could have been filed till 5.7.2004 after excluding the time spent in getting the certified copies under Section 12 of the Act (ibid) whereas in RSA No. 147/2005, it could have been filed within a period of three months which had already lapsed when the certified copies were applied i.e. on 16.8.2005. Similarly, in RSA No. 151/2005 and RSA No.156/2005 copies were applied long after the expiry of period of limitation i.e. 23.8.2005.
Second appeals with numbers 146/2005, 148/2005 to 150/2005, 152/2005 to 155/2005 and 157/2005 to 159/2005 were filed on 6.9.2005 each of those were barred by limitation by one year and two months whereas in the remaining appeals limitation had already expired when the certified copies were applied as earlier observed.
Appellants moved applications under Section 5 of the Limitation Act, 1908 (C.M.No. 1/2005) and prayed condonation of delay in filing the appeals. In each appeal, such application is verbatim reproduction of each other. Grounds in support of condonation of the delay prayed, were that Zila Councils were dissolved by Punjab Local Government Ordinance, 2001 and their properties, assets and liabilities were succeeded by the District Governments by virtue of Section 180 of the Ordinance but under Rule 39 of the Punjab Local Government (Accounts) Rules, 2001 there was a restriction on the issuance of temporary advance which could only be made for development purposes hence, the requisite Court-fee could not be purchased, due to difficulty of release of funds. The other reason given was that there was ambiguity as to in whose name the appeals be filed against the appellate judgments/decrees which generated out of pendency of two other appeals before this Court (RSA No. 202/2004 and RSA No. 203/2004) which were filed in the name of Province of the Punjab. These applications were supported by affidavit of DCO praying condonation of delay of 397 days in filing the appeals.
Primarily there are two grounds taken by the appellants in support of prayer of condonation of delay, first being that non-availability of funds are purchase of Court-fee stamp-papers and the other ambiguity about the person in whose name the appeals were to be filed but none of those reasons was either specified with dates nor was made out of the applications under Section 5 of the Limitation Act 1908, as drafted. Appellants have not explained as to why certified copies were not applied for long two months as in most of the cases, as noted above, copies were applied on 21.5.2004. The appellants in Paragraph 3 of the applications attempted to explain that on account of dissolution of Zila Council which were taken over by District Government, there remained some ambiguity about filing of appeals but they have themselves asserted that this ambiguity stood resolved under Punjab Local Government Ordinance, 2001 District Governments successfully worked their first tenure and were functioning when the appellate Court announced judgments on 17.3.2004. The appellants did not mention which actual dates when they moved for sanction/allocation of funds for purchase of Court-fee/stamp-papers and when those were sanctioned by the District Government and mere bald statement that there was restriction on release of funds, was not enough to come to their rescue especially when the stamp-papers appended with the appeals were purchased on 16.8.2005 and inspite of it, the appeals were filed after 14 days without any explanation. It is deciphered from the applications under discussion that on the last day for filing of appeals, funds were available to the appellants for purchase of Court fee and there was no difficulty of funds, ambiguity of the name of the individual for filing of appeals or closure of this Court on account of summer vacations and this date was 5.7.2004. During summer vacations, office of this Court remained open for entertaining case involving limitation thus protection of Section 4 the Limitation Act was not available to the appellants. Inspite of the fact that appellants have not produced any document showing their efforts to file the appeals, earlier to 1.9.2005, as they have themselves purchased stamp-papers only on 16.8.2005 and all the documents including memorandum of appeals, affidavits and opening-sheets were prepared only on 1.9.2005 hence their stance that this Court remained closed during summar vacations from 1.8.2005 to 31.8.2005 is not acceptable for condonation of delay, especially when they have not explained delay from 5.7.2004 to 1.8.2005.
Besides the fact that there is no sufficient cause/reason for condonation of delay, the one furnished has also not been satisfactorily explained, thus the same has no legal value and on the basis thereon, the appellants cannot be given any different treatment, as compared to an ordinary litigant. Assuming for the sake of arguments that the appellants have correctly narrated the factual position, even then, problem if any was within the department of the appellants and it could not be cited as a valid ground for condonation of delay which was not sufficient and did not justify to deprive the respondents of valuable rights which had accrued to them by lapse of the appellants. Law regarding condonation of delay is firmly settled by this Court to the effect that Government departments cannot be given any preferential treatment as against private litigants. The Hon'ble Supreme Court in the case of Chairman/Secretary, Pakistan Railways, Ministry of Railways, Government of Pakistan, Islamabad and others versus Muhammad Sharif Javaid Warsi (PLD 2003 SC 6) graciously refused condonation of delay to the Government Department by holding that no preferential treatment can be rendered to them qua civil litigants. The Hon'ble Supreme Court re-emphasized their earlier consistent view in this behalf by relating judgments in the cases of Pakistan through Secretary, Ministry of Defence versus Messrs Azhar Brothers (1990 SCMR 1059), Government of the Punjab through Secretary (Services), Services General Administration and Information Department, Lahore and another versus Muhammad Saleem (PLD 1995 SC 396), Federation of Pakistan through Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad and 5 others versus Jamal-ud-Din and others (1996 SCMR 727), Central Board of Revenue, Islamabad through Collector of Customs Sialkot Dry Port Samberial, District Sialkot and others versus Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others (1998 SCMR 307), Lahore High Court, Lahore through Registrar versus Nazar Muhammad Fatiana and others (1998 SCMR 2376) and Chairman, District Evacuee Trust, Jhelum versus Abdul Khaliq (PLD 2002 SC 436). The Hon'ble Supreme Court in the case of Chairman/Secretary, Pakistan Railways (supra) graciously refused to condone the delay of only 20 days whereas instant appeals as observed above, are beyond (397 days) according to the appellants themselves.
Appellants failed to explain inordinate delay occasioned on account of their negligent/indolent conduct. Initially they applied certified copies without any cause after two months then they consumed more than a year in filing the appeals after getting the copies from the concerned copying agency. Under law, appellants were required to explain each day's delay which was lacking in all these cases and without it, prayer cannot be granted solely on the basis of judgment relied by the learned counsel for the appellants in the case of Aamir Ikram and 10 others versus District Health Officer, Vehari and others (PLD 2003 SC 266). In this case, the Hon'ble Supreme Court condoned the delay of 146 days in filing civil petition for leave to appeal for the reasons that out of impugned judgment, the Hon'ble Supreme Court had already granted same relief to the other employees of the same department. This judgment proceeds on all together different facts/circumstances and laid down a different proposition of law, hence on the basis of it, no relief can be granted in favour of the appellants. RSA No. 202/2004 and RSA No. 203/2004 are no doubt pending but in those, on the first hand, limitation has not been condoned by this Court and on the other hand, there is a dispute regarding tampering of record of copying agency concerned by the appellants therein, for bringing the appeals before this Court within limitation. Above all, these appeals have been filed by the Government of Punjab, the owner of the property, whereas appellants of the appeals under discussion, were lease holders which too, had been resumed leaving no right with them in the property.
For the reasons noted above, there is no ambiguity that appellants had neither any sufficient cause for condonation of an inordinate unexplained delay nor the same was asserted or made out from the file hence, C.M. No. 1/2005 is devoid of any merit and consequently, same is disallowed declining condonation of delay and all the appeals are dismissed as barred by limitation, in limine.
(Aliya Sattar Chaudhry) Appeal dismissed.
PLJ 2006 Lahore 796
Present: Muhammad Muzammal Khan, J.
SHELL PAKISTAN LTD., KARACHI through its ATTORNEY & LEGAL AFFAIRS OFFICER--Appellant
versus
DAEWOO CORPORATION through its CHIEF EXECUTIVE/PRESIDENT and 2 others--Respondents
F.A.O. No. 240 of 2005, decided on 3.10.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, Rr. 1 & 2--Suit for temporary injunction--Institution of Fuel Filling Station at motorway by appellant under agreement--Entering into agreement after stipulated period of agreement--Dismissal of temporary injunction by trial Court--Validity--Reduced condition of admitted agreement between parties that on completion of eight years, agreement would be renewed by mutual consent of parties but subject to condition that respondent has not introduced itself as oil marketing company in Pakistan and had no marketing interest in relation thereto--Respondent had not introduce itself as Oil Marketing Company in Pakistan but it has marketing interest relating to supply of oil as respondent has started functioning as dealer of Pakistan State Oil Company Limited--Neither appellant and respondent could mutually agree to further extension of agreement nor extension could have been granted to appellant on account of marketing interest of respondents--On account of already taken over possession of filling stations by respondent no irreparable loss/injury was to be sustained by appellant and as compared to respondent it was not to suffer any inconvenience--Held: Injunction prayed was rightly refused by trial Court--Appeal dismissed. [Pp. 798 & 799] A, B, C & D
Mr. Muhammad Saleem Shehnazi, Advocate for Appellant.
Mr. Tallat Farooq Sheikh, Advocate for Respondent 2.
Sh. Anwar-ul-Haq and Sh. Naveed Anwar, Advocates for Respondent No. 3.
Date of hearing : 3.10.2005.
Order
Instant first appeal against the order dated 21.9.2005 passed by the learned Civil Judge, Lahore, prayed for issuance of injunction restraining the respondents from taking over control of Fuel Filling Stations of the appellant, already installed on different points of the Motorway (M-2), Lahore-Islamabad.
Succinctly, relevant facts as deciphered from the plaint are that the appellant and Daewoo Corporation proposed to develop Motorway service areas and Fuel Filling Stations etc. over the Motorway (M-2) controlled by National Highway Authority (NHA). On account of acceptance of these proposals, appellant entered into an agreement dated 10.9.1997 with Respondent No. 1 for installation of Fuel Filling Stations at ten motorway service areas and was to retain control thereof for eight initial years. Appellant further pleaded in the plaint that after completion of eight years, term of agreement was to be automatically extended for further seven years but inspite of complying with all legal formalities of getting licences/NOCs, Respondent No. 1 in meeting scheduled on completion of initial eight years, intended to thrust its own terms of agreement and those unilateral terms proposed were not acceptable to it, as was evident from minutes of meeting dated 27.6.2005 and instead an agreement with Respondent No. 3 was illegally entered to the detriment of the appellant, contrary to the agreement dated 10.9.1997. Appellant further averred that it had underwent huge expenses by developing the filling stations, installation of dispensing equipment and filling fuel in the tanks, hence the impugned memorandum of understanding dated 28.5.2005 may be declared to be illegal, void and of no legal consequence and that the earlier agreement stood automatically extended for another period of seven years which still subsists between the parties. Appellant prayed by way of permanent injunction against the respondents that they should not be disturbed in its possession over the filling stations. Appellant along with the suit filed an application under Order XXXIX, Rules 1 and 2 CPC praying temporary injunction, requiring the respondents to maintain status quo pending suit.
Respondents contested the suit and opposed the issuance of temporary injunction by filing their written statements/written replies averring that agreement between the appellant and Respondent No. 1 stood vanished on account of completion of contractual period of eight years whereafter the agreement was to be extended by mutual concurrence which was declined by Respondent No. 1, hence appellant had no right to maintain the suit or application for temporary injunction. Respondents also maintained that entire service areas were constructed and developed by Respondent No. 1 by incurring its own expense, wherein appellant did not contribute. They further asserted that appellant only installed signs and retail visual identity components. The learned Civil Judge cognizant of the suit after hearing the learned counsel for the parties, refused to issue temporary injunction and dismissed application of the appellant in this behalf vide his order dated 21.9.2005. Appellant has now filed instant appeal, after issuance of notice to the respondents in terms of Order XLIII, Rule 3 CPC and Respondent Nos. 2 and 3 appeared through their respective counsel, who were holding watching briefs.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Learned counsel for Respondent No. 2 had submitted before this Court on 23.9.2005, in presence of learned counsel for the appellant, that they had already taken over the management of fuel pumps located at the Motorway and have started functioning as dealers of PSO. Presently, learned counsel for the appellant refuted this statement of Respondent No. 2 and stated that appellant still holds managerial control over all the fuel stations. In view of this opposing stance by the parties, two main points which hinge for determination are that as to whether appellant's agreement with Respondent No. 1 stood automatically extended for another period of seven years in the terms of agreement dated 10.9.1997 and that the appellant still holds control over the filling stations. None of the parties refuted the agreement dated 10.9.1997 entered between Daewoo Corporation and Shell Pakistan Ltd. which tenure-wise was controlled by its clause 8, which read as under:--
"8. Term
The term of this Agreement shall commence on the date hereof and shall remain in effect for eight (8) years thereafter. This agreement will then be renewed on mutually agreed terms for an additional seven years hence thereafter, provided that DAEWOO has not introduced itself as an Oil Marketing Company in Pakistan and has no marketing interest in relation thereto, during the period of first eight years. For the period of first five years the Management Fee shall be given in the same manner and proportion as provided in the Clause [3] herein above, and for the remaining three [3] years term, SPL will get 10% of the Net Profit in the same manner as provided herein above. If this agreement is renewed for an additional seven years, SPL will get 10% of the Net Profit (in the same manner as provided herein above) for the subsequent 2 years, and 5% for the remaining 5 years. This agreement may be renewed mutually before expiration of the said term. Notice of intent for such renewal shall be given six months before the said expiry.
It is evident from the above reduced condition of the admitted agreement between the parties that on completion of eight years, the agreement would be renewed by mutual consent of the parties but subject to the condition that Respondent No. 1 has not introduced itself as an Oil Marketing Company in Pakistan and had no marketing interest in relation thereto. Minutes of meeting with the appellant dated 27.6.2005 and letter dated 30.7.2005 that no concurrence could prevail between both of the parties for extension of agreement for another period of seven years and thus intendment which
prevailed is also apparent from the plaint itself. Besides this, though Respondent No. 1 has not introduced itself as an oil marketing company in Pakistan but it has a marketing interest relating to supply of oil as Respondent No. 2 has started functioning as dealer of Pakistan State Oil Company Limited. In these circumstances, neither appellant and Respondent No. 1 could mutually agree to further extension of agreement nor extension could have been granted to the appellant, on account of marketing interest of the respondents, as noted above.
Respondent No. 2 has placed on file copy of a petition dated 27.9.2005 moved by Imtiaz Ahmed Shah, Manager of the appellant under Section 22-A Cr.P.C. praying registration of criminal case against 11 named and 30/35 unknown persons, who were employees of Respondent No. 1, from the Court of learned Additional Sessions Judge, Pindi Bhattian. In this application it was categorically reported that named employees of Respondent No. 1 illegally and forcibly dispossessed the appellant by removing all the signboards of Shell and took away petrol/diesel lubricants of the quantity mentioned therein. Examination of this application leave no room that appellant still holds control or possession over the filling stations regarding which injunction application was disallowed by the trial Court.
As regards incurring of expenses by the appellant for construction of filling stations within the service areas on Motorway (M-2) of Respondent No. 1, Clause-I of the above referred agreement dated 10.9.1997, is relevant whereby Respondent No. 1 undertook to construct the filling stations at each MSA according to the specifications, layout and with the technical assistance provided by Shell Pakistan Limited. Respondent No. 1 was also to provide the skilled, unskilled supervisory and/or other employees and staff, proper electricity, gas, water and sanitary facilities etc. This Clause demonstrated that all the expense was to be incurred by Respondent No. 1 and under Clause 2(b)(1) of the agreement SPL was only responsible for supply of fuel, lubricants and other ancillary products mentioned therein. Case of the appellant is demolished by the terms of agreement itself and thus no prima facie/arguable case existed in its favour. On account of already taken over possession of the filling stations by Respondent No. 2, no irreparable loss/injury was to be sustained by the appellant and as compared to Respondent No. 2 it was not to suffer any inconvenience, thus the injunction prayed was rightly refused by the trial Court.
For the reasons noted above, this appeal has no merit and is accordingly dismissed, in limine.
(Aliya Sattar Chaudhry) Appeal dismissed.
PLJ 2006 Lahore 800
Present: Mian Saqib Nisar, J.
SARFRAZ & others--Petitioners
versus
MUHAMMAD HUSSAIN & others--Respondents
C.R. No. 1215 of 1998, heard on 3.2.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 11 & O.XVII, R.3--Resjudicata--Dismissal of suit for non-production of evidence--Principle of resjudicata--Validity--Earlier suit which has been made basis of applying resjudicata by Courts below was not filed by N' or his legal heirs, but only by few legal heirs ofA', therefore dismissal of that suit u/O. XVII, R. 3, C.P.C. for non-production of evidence by plaintiffs of such case could not be made basis of resjudicata for other plaintiffs/petitioners--Res judicata is a question of law, but its applicability is dependent upon factual premises of proof that issues involved in earlier litigation were substantially and directly in issue in latter case--Foundation of facts have to be laid down by party resorting to `resjudicata' and thus should tender into evidence pleadings, issues and judgment of earlier case, but non of these essential documents have been brought on record in such matter and merely on basis of decree sheet it cannot be ascertained and held that said bar was attracted--No challenge thrown to sale of 34 kanals and thus two suits cannot be held to be based upon same cause of action--Held: Judgments and decrees of two Courts impugned in petition being against rules laid down, cannot sustain--Case remanded to Court of appeal for decision afresh. [Pp. 802 & 803] A, B, C & E
(ii) Rule of Lispendens--
----Lis-pendens--Applicability--Limitation--Rule of lis-pendens would be duly applicable during period of limitation available to aggrieved party challen-ging a decree, if ultimately appeal is filed against decree and it succeeds--Sale/alienation has taken place during time after passing of decree but no appeal had been filed, shall not save transaction from legal effects of lis pendens, rather such alienation shall be clearly hit by said rule--Held: No legal or factual infirmity in judgment of Court of appeal. [P. 803] D
Mr. Shaukat Ali Mehr, Advocate for Petitioners.
Mr. Muhammad Farooq Qureshi Chishti and Mr. Akhtar Masood, Advocates for Respondents.
Date of hearing : 3.2.2006.
Judgment
Fateh Khan, was the owner of the land measuring 200 Kanals, which, according to the case of the petitioners, was sold in favour of Ali Muhammad and Nawab vide registered sale-deed dated 25.8.1964; this sale was thereafter, challenged by Fateh Khan, himself on the ground of fraud, etc. and his suit was decreed on 23.12.1965; against the above, the purchasers Ali Muhammad, etc, preferred an appeal, which was accepted on 7.12.1966 and the suit was dismissed. Fateh Muhammad assailed the above through RSA No. 13/1967, which was disallowed on 10.1.1967. It may be pertinent to mention here that during the pendency of the above referred first appeal, out of the aforesaid 200 kanals, Fateh Muhammad, sold 34 Kanals in favour of Atta Muhammad and Soni Khan, the predecessors-in-interest of Respondent Nos. 15 to 20.
Independent of the above, the heirs of Fateh Muhammad brought a suit for the declaration, challenging the sale of Ali Muhammad and Nawab being against their reversionary rights under the custom. The suit was allowed by the trial Court on 30.4.1974; aggrieved of this, Ali Muhammad and Nawab, preferred an appeal, which was dismissed on 25.11.1976. however, on their second appeal, RSA No. 974 of 1976, which was accepted on 2.5.1990, the suit of the heirs of Fateh Muhammad was dismissed. This is the final outcome of both the litigations.
On the conclusion of the above matter, the petitioners moved an application to the District Magistrate for the implementation of the sales in the relevant revenue record, but this was refused vide order dated 27.4.1991, with the direction to the petitioners, to seek their remedy from the Civil Court. Thus the petitioners in this backdrop, filed the suit for the declaration on 14.5.1991, which was contested by the Respondent Nos. 14 to 20 and was dismissed by the trial Court, on 31.10.1995 on two counts, firstly it was held to be barred by the res judicata and secondly, that the sale in favour of the Respondent Nos. 14 to 20, is not hit by the rule of lispendens. The petitioners challenged this judgment and decree through an appeal, and the learned appellate Court vide judgment and decree dated 3.7.98 has reversed the finding of the trial Court on the proposition of lispendens, whereas, the finding on res judicata has been upheld, resultantly, the appeal has been dismissed. Hence this revision petition.
Learned counsel for the petitioner argued that for the purpose of attracting the bar of res judicata, it has to be established on the record by the objecting party and should also be determined and adjudicated by the Court, that the issues in the previous litigation were directly and substantially in issue in the subsequent/present litigation. As the onus of the issues regarding the bar of resjudicata was upon the Respondent Nos. 14 to 20, but they miserably failed to discharge the onus as having led no evidence to prove on the record about the proximity of the issues in the two litigations; neither the plaint nor the written statement of the earlier case or even the judgment have been tendered in evidence, rather the decree sheet was placed by them, which was absolutely inadequate for proving their case. The earlier suit, which has been made the basis of the resjudicata by the Courts below, even according to the decree sheet, was not filed by all the plaintiffs of this case, but only by three heirs of Ali Muhammad, namely Ghulam Muhammad, Muhammad Nawaz and Atta Muhammad, who in that suit simply sought the protection of their possession, by asking an injunctive relief and the question of title was not an issue, and it could not be, because such question had already been conclusively decided in the earlier two rounds of the litigation. It is further submitted that Ali Muhammad, was also survived also by the other heirs, who are Petitioner Nos. 7 to 12 in this case, and Nawab by the Petitioner Nos. 13 to 15; they admittedly were a party to that earlier suit, therefore, resjudicata was inapplicable. It is argued that in order to attract res judicata, the cause of action in the earlier suit and the subsequent suit, should be common, but because there is no evidence on the record, which was the duty of the Respondent Nos. 14 to 20, enabling the Court to adjudge and ascertain the commonality of the causes of action, resultantly, the resjudicata in the circumstances, shall not be applicable, as has been held in the cases reported as Mrs. Irene Wahab vs. Lahore Diocesan Trust Association (2002 SCMR 300), and Mst. Gul Shahnaz vs. Abdul Qayyum Soomro, etc. (PLD 2002 Karachi 333). It is also submitted that where the relief claimed in the earlier suit and the one agitated in the second suit, are different, the resjudicata shall not debar the second suit, the support in this regard, has been drawn from the case reported as Sapphire Textile Mills Ltd. etc. vs. A.P.L. Pakistan (Pvt.) Ltd. and others (2002 CLD 1767).
I have heard learned counsel for the parties. This is undoubtedly an admitted position on the record that the earlier suit, which has been made the basis of applying resjudicata by the two Courts below, was not filed by Nawab or his legal heirs, but only by few legal heirs of Ali Muhammad, therefore, the dismissal of that suit, under Order XVII, Rule 3 CPC for the non-production of the evidence by the plaintiffs of that case, could not be made the basis of the resjudicata for the other plaintiffs/petitioners. Besides, the onus of the issue regarding resjudicata, was upon the shoulder of the Respondent Nos. 14 to 20, which they failed to discharge, due to their omission to tender in evidence, the pleadings of the parties in the previous suit. In this context, it may be held that though the application of the rule of res judicata is a question of law, but its applicability is dependent upon the factual premises of proof that the issues involved in the earlier litigation, were substantially and directly in issue in the latter case. This foundation of the facts have to be laid down by the party resorting to res judicata and thus should tender into evidence the pleadings, the issues, and the judgment of the earlier case; but none of these essential documents have been brought on the record in this matter and merely on the basis of the decree sheet it cannot be ascertained and held that the said bar was attracted.
Moreover, in the earlier litigation, at the best, the dispute between the plaintiffs of that case and Respondent Nos. 14 to 20 was restricted to 34 Kanals, while on the basis of the verdicts of the Court in the two litigations, referred to above, through the decision in the earlier two round of litigation terminated in favour of the petitioners, they in the present matter were only asking for the implementation of the sale, which has been affected in favour of Nawab and Ali Muhammad, admittedly and as adjudicated by the Courts was validly made by Fateh Muhammad in their favour; there was no challenge thrown to the sale of 34 kanals and thus the two suits cannot be held to be based upon the same cause of action. Resultantly, the judgments and decrees of the two Courts impugned in this petition, being against the rules laid down, cannot sustain.
As regards the question of lis-pendens is concerned, this issue earlier decided against the petitioners by the trial Court has been reversed by the Court of appeal, no cross-appeal or cross-objection has been filed, but the counsel for the contesting respondents, has orally assailed those before me. But I do not find any merit in the submission, because it is proved on the record that the sale made in favour of Respondent Nos. 14 to 20 was during the pendency of the appeal and thus it is hit by the lispendens. However, even if, the sale was made after the decree in favour of Fateh Muhammad, and before the filing of the appeal by Ali Muhammad etc, yet it is undisputedly made before the expiry of the period of limitation available to Ali Muhammad, etc for filing the appeal against that judgment and decree. It may be pertinent to hold that the rule of lispendens shall be duly applicable during the period of limitation available to the aggrieved party challenging a decree, if ultimately the appeal is filed against the decree and it succeed. And merely because a sale/alienation has taken place during the time after the passing of the decree but when no appeal had been filed, shall not save the transaction from the legal effects of lispendens; rather such alienation shall be clearly hit by the said rule, therefore, I do not find any legal or factual infirmity in the judgment of the learned Court of appeal on this issue.
In the light of above, by allowing this revision, the impugned judgment and decree is set aside, the case is remanded to the learned Court of appeal for decision afresh on all other issues except those covered by this petition.
(Aliya Sattar Chaudhry) Case remanded.
PLJ 2006 Lahore 804
Present: Muhammad Muzammal Khan, J.
MUHAMMAD IQBAL--Petitioner
versus
MUHAMMAD SHOAIB and others--Respondents
W.P. No. 14822 of 2004 and W.P. No. 11374 of 2005, decided on 22.3.2006.
(i) Constitution of Pakistan, 1973--
----Art. 199--Civil Procedure Code (V of 1908), O. VII, R. 11--Cause of action--Applicants being successors of tenancy rights by their father pleaded that alleged special attorney was never appointed--As the principal being on deathbed was incapacitated to execute any such document--Elements of fraud/misrepresentation are there, hence the same could not have been rejected--Petition dismissed. [Pp. 807 & 808] A & F
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. I, R. 10 & S. 12(2)--Deletion of names--Respondents cannot seek deletion of names--Trial Court is equipped with the powers of deletion names of unnecessary parties. [P. 808] E
(iii) Civil Procedure Code, 1908 (V of 1908)--
----O. XL, R. 1--Insufficient evidence--Appointment of receiver could not have been accepted especially when the pre-requisites of O. XL, R. 1 CPC were not fulfilled. [P. 807] C
(iv) Qanoon-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 117--Fake signatures--Direction by trial Court to appear in person and to certify the impleadments on to refute the same--Court adopted by trial Court is just/fair and requires no interference. [P. 807] B & D
Nemo for Petitioner (in W.P. No. 11374 of 2005).
Ch. Bashir Ahmad, Advocate for Petitioner (in W.P. No. 14822 of 2004 and for Repsondent (in W.P. No. 11374 of 2005).
Date of hearing : 22.3.2006.
Order
This judgment proposes to decide two Constitutional petition, one in hand and the other WP 11374-2005, as both these petitions are directed against the same orders/judgments, raise similar question of law/facts and are inter the same parties. Petitioners in both these petitions, challenged the judgments/orders dated 27.5.2003 and 9.8.2004 passed by the learned Senior Civil Judge, and the learned Additional District Judge Bhakkar, to be declared illegal, void and of no legal consequence whereby six different applications filed by the parties, and their revision petitions were dismissed, respectively.
Succinctly, relevant facts are that land measuring 1240 kanals 9 marlas situated in Chak No. 6, Rakh Mankera, District Bhakkar was allotted to one Muhammad Ayub son of Samand Khan under Tube Well Scheme in the year 1963-64 who appointed one Ch. Ghulam Rasul son of Muhammad Ibrahim as his general attorney. Ch. Ghulam Rasul the appointed general attorney of the allottee, was the real father of Muhammad Iqbal writ petitioner of the petition in land i.e. WP. 14822 of 2004 and that of Muhammad Shoaib writ petition of the connected petition i.e. (WP. 11374-2005,) whereas allottee of Tube Well Grant has also died and is represented through Respondent Nos. 7 to 13. Muhammad Iqbal writ petitioner filed a suit for declaration against the sons of Muhammad Ayub Khan allottee, and alleged that special attorney, appointed by Ch. Ghulam Rasul. Namely Sabir Hussain Respondent No. 7 had agreed to transfer the suit property vide agreement dated 1.2.1986, for a consideration of Rs. 4, 72,714/- out of which he received an amount of Rs. 3,50,000/- as earnest money. It was further pleaded that under the agreement dated 1.2.1986 it was settled that remaining instalments and all other dues which were payable to the Government, thenceforth shall be paid by Muhammad Iqbal writ petitioner/plaintiff on behalf of the Lessee Muhammad Ayub Khan. Muhammad Iqbal petitioner further averred that physical possession of the suit land was delivered to him in pursuance of the aforesaid sale agreement with approval of the Board of Revenue vide Memo No. 165-76/977 TR-III dated 27.3.1976. According to him, on conformant of proprietary rights to the allottee, land subject of agreement was to be transferred in the name of Muhammad Iqbal petitioner. As per assertions, in the plaint filed by Muhammad Iqbal, the petitioner, he had paid to Thal Development Authority, an amount of Rs. 1,22,714/- on account of outstanding instalments due against the allottee and this amount was deposited against Bank Challans. Muhammad Iqbal petitioner narrated in the plaint that he spent a huge amount on improvement of land by plantation of large number of trees, sinking of a tube well, raising of construction and making the land cultivable. Muhammad Ayub Khan, the allottee died before the conformant of proprietary rights where after his successor refused to honour the agreement to sell allegedly executed by special attorney appointed by Ch. Ghulam Rasul. On refusal of the heirs/legal representative so the allottee Muhammad Ayub Khan to perform their part of contract on behalf of their father, Muhammad Iqbal was forced to file this suit.
Respondent Nos. 7 to 13 being defendants in the suit filed by Muhammad Iqbal, contested the same by filing their written statements whereas Sabir Hussain the alleged attorney filed his consenting written statement. In view of controversial pleading of the parties to the suit they were put to trial by framing of issues. Pending suit, heirs/legal representatives of original allottee Muhammad Ayub Khan received an amount of Rs. 2,50,000/- from Muhammad Iqbal petitioner and deserted contest of the suit which was ultimately decreed by the then the learned Senior Civil Judge, Bhakkar vide judgment/decree dated 30.7.1998.
Muhammad Shoaib and Mst. Ghazala Yasmeen along with Riaz Ayub their brother on 24.4.2000 filed an application under Section 12(2) CPC before the learned Senior Civil Judge, Bhakkar which is reported to be pending. Their case was that their father Ch. Ghulam Rasul had purchased tenancy rights of land measuring 1240 kanals 9 Marlas from the allottee of the tube well grant i.e. Muhammad Ayub Khan who after receipt of the entire price executed a general power of attorney in the name of Ch. Ghulam Rasul which was registered on 21.11.1978. According to them, their father suffered from brain haemorrhage and was accordingly admitted in Ganga Ram Hospital Lahore on 5.10.1981 and thus was on death bed till 21.9.1989 was not in a position/capacity to visualize understand his good or bad but their brother Muhammad Iqbal, connived with the other respondents in the application under Section 12 (2) CPC and manoeuvred a fictitious special power of attorney on 21.1.1986 allegedly executed by their father Ch. Ghulam Rasul in favour of Sabir Hussain. These writ petitioners further averred in their application that their father used to sign in English whereas, the alleged special power of attorney in favour of Sabir Hussain was said to have been thumb marked by him. They further challenged the agreement to sell dated 1.2.1986 as fake/collusive which was executed by the special attorney in favour of Muhammad Iqbal petitioner and in this manner they prayed the judgment/decree-dated 30.7.1998 may be adjudged being tainted with fraud and misrepresentation qua the Court.
Parties to the application under Section 12(2) CPC filed different six applications before the learned Senior Civil Judge, cognizant of the same, for review/recall of the injunctive order dated 10.4.2004, application for deletion of name of Gohar Ayub Khan Respondent No. 3 therein, application by Riaz Ayub for withdrawal of application under Section 12(2) CPC to his extent and application for appointment of receiver of the suit land. The learned Senior Civil Judge, after getting replies to all these applications and hearing the parties dismissed all of those vide his consolidated order dated 27.5.2003.
Parties to the lis were not satisfied with the decision of the trial Court dated 27.5.2003 and they accordingly filed three revision petitions, out of which two were filed by Muhammad Iqbal and others whereas the third one was filed by Muhammad Shoaib and others before the learned Additional District Judge Bhakkar but they remained unsuccessful as all the three revision petitions were dismissed through consolidated revisional judgment dated 9.8.2004. Muhammad Iqbal thereafter filed Writ Petition No. 14822 of 2004 whereas Muhammad Shoaib along with Mst. Ghazala Yasmeen filed Writ Petition No. 11374 of 2005 and respondents in each
petition, in response to notice by this Court have appeared and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Muhammad Iqbal petitioner had moved an application under Order VII Rule 11 CPC averring that his brother Muhammad Shoaib and his sister Mst. Ghazala Yasmeen had no cause of action locus standi to file the application under Section 12(2) CPC but on this score by invoking the provisions under examination, application could not be rejected, as prima facie the applicants thereof being successors of Ch. Ghulam Rasul had claimed purchase of tenancy rights by their father and pleaded that the alleged special attorney namely Sabir Hussain Respondent No. 14 was never appointed as special attorney and was not conferred any authority to enter into an agreement, as his principal Ch. Ghulam Rasul being on deathbed was incapacitated to execute any such document. Tentatively, Muhammad Shoaib etc. The writ petitioners had made out elements of fraud/misrepresentation quo the Court and their application under Section 12(2) CPC did disclose a cause of action, hence the same could not have been rejected under Order VII Rule 11 CPC.
As regards the application for review/recall of the order dated 10.4.2003 filed by Muhammad Iqbal petitioner, the order sought to be reviewed was only interlocutory in nature, suspending the judgment/decree dated 30.7.1997 and would automatically stand vacated on decision of main the petition under Section 12(2) CPC. Even otherwise judgment/decree dated 30.7.1998 is declaratory in nature and cannot be put to execution, thus its suspension would not effect the decree holders especially when he claims to be in possession of the suit land. Concurrent findings returned by the Respondent Nos. 5 and 6 accept no exception and as accordingly maintained.
Coming to other two applications filed by Muhammad Shoaib etc. petitioners, one under Article 117 Qanoon-e-Shahadat Order, 1984 and the other for appointment of receiver of the land subject of litigation, Muhammad Iqbal petitioner is in possession of the land under a judgment/decree dated 30.7.1998 which has not been cancelled/set-aside or adjudged, so far and at the present, his possession cannot be disturbed. Muhammad Shoaib etc. in case of their success in their application under Section 12(2) CPC will have a right to demand rendition of Accounts or recovery of mesne profits by initiating appropriate proceedings but unless they established their case by producing evidence, their prayer of appointment of receiver could not have been accepted especially when the pre-requisites of Order XL, Rule 1 CPC were not fulfilled. Likewise their prayer to require Muhammad Iqbal petitioner to prove his asserted forgery/fraud in associating/making Mst. Ghazala Yasmeen as one of the applicants by inscribing her fake signatures, vanished in view of direction already given by the trial Court to her to appear in person and to certify her impleadment or to refute the same Mst. Ghazala Yasmeen is co-petitioner with Muhammad Shoaib in WP. 11374 of 2005 and in view of it, I am of the considered view that course adopted by the trial Court is just/fair and requires no interference by this Court. It goes without saying that Muhammad Iqbal himself being a respondent to application under Section 12(2) CPC cannot seek deletion of name of Mst. Ghazala Yasmeen especially when the trial Court is equipped with the powers of deletion names of unnecessary parties as per provisions of Order 1 Rule 10 CPC and this exercise will be undertaken on compliance of order dated 10.4.2003 by the trial Court.
For the reasons noted above, none of the Respondent Nos. 5 and 6 committed any illegality amenable to Constitutional jurisdiction of this Court, as they decided all the applications by the parties strictly in accordance with the law applicable and the record. Even otherwise a lawful decision rendered within the ambit of conferred jurisdiction, cannot be substituted on this petition which being devoid of any merit is dismissed with no order as to costs but in view of contest inter the real brothers/sister and its pendency since the year 2000, it will be in the interest of justice to conclude the same expeditiously, hence the trial Court is directed decide the matter pending before it, within a period of 4 months even by undertaking day to day proceedings. There will be no order as to costs.
(Rafaqat Ali Sohal) Case remanded.
PLJ 2006 Lahore 808
Present: Syed Hamid Ali Shah, J.
KHAN MUHAMMAD KHAN deceased through his LEGAL HEIRS--Petitioners
versus
MEMBER (JUDICIAL-I) BOARD OF REVENUE, PUNJAB LAHORE and 5 others--Respondents
W.P. No. 1426 of 2005, decided on 15.3.2006.
(i) Constitution of Pakistan, 1973--
----Art. 199--West Pakistan Board of Revenue Act (XI) of 1957--S. 8--Second review--Maintainability--Review is a substantive right and is always creation of the relevant state--Court cannot grant relief by invoking the inherent powers--Impugned order suffered from Legal infirmity---Ignoring the expressed provisions of law was not sustainable--Petition allowed. [Pp. 810 & 811] A & D
(ii) West Pakistan Board of Revenue Act, 1957 (XI of 1957)--
----S. 8--Competency of review--Review is competent when new and important matter or evidence is discovered--On account of some mistake or error apparent on the face of record--Despite the exercise of due diligence was not produced when the order or decree was passed. [P. 811] B
(iii) West Pakistan Board of Revenue Act, 1957 (XI of 1957)--
----S. 8(2)--Limitation of review--Review filed after the lapse of two years and 11 months--Period of filing review application is 90 days from the order--Review is entertained, ignoring the period of limitation prescribed by law was without any lawful authority. [Pp. 811 & 812] C & F
(iv) West Pakistan Board of Revenue Act, 1957 (XI of 1957)--
----S. 8(1)--Power of review--Power of review is available or can be exercised only--Statute expressly bestows any power of review--Jurisdiction cannot be exercised when it is not specifically provided. [P. 812] E
PLD 1981 S.L. 94, 2005 CLC 1512, 1989 SCMR 285, 1996 CLC 1907 & PLD 1981 SC 94.
Mr. Zia Ullah Khan Niazi, Advocate for Petitioners.
Nemo for Respondent No. 1.
Malik Noor Muhammad Awan, Advocate for Respondent Nos. 3 to 6.
Date of hearing : 7.10.2005.
Judgment
Briefly stated the facts of the petition, are that the predecessor of Respondent Nos. 2 to 6 namely Muhammad Zaman Khan effectee of Chashma Barrage was issued entitlement Certificate No. 83. The certificate was cancelled subsequently through order dated 26.6.1994 on the ground that land acquired from the effectee is less than the minimum required for alternative land. The allottee, however, was not dispossessed and was given advantage of memo No. 1144-93/167-CI, dated 2.2.1994 of the Board of Revenue Punjab, Lahore. The predecessor of Respondent Nos. 2 to 6 challenged the order of cancellation in appeal before Commissioner Sargodha Division, which met the same fate and was rejected on 27.3.1995. Respondent Nos. 2 to 6 assailed order of rejection of appeal, dated 27.3.1995 in revision, before Board of Revenue Punjab, Lahore, which too was dismissed vide order dated 11.10.1999. First review application was fixed before learned Member Judicial-I, who vide order dated 6.5.2002 dismissed the review application. The second review was accepted by learned Member (Judicial-I), Board of Revenue Punjab Lahore vide order dated 7.12.2004, who observed in the impugned order that the petitioners be accommodated keeping in view their long association of more than 30 years, over the land in dispute. Respondent Nos. 3 to 6 were allowed to purchase the land at the market rate with 10% surcharge, in 14 equal installments. The petitioner has voiced his grievance through the instant petition against the order passed in the second review application.
Learned counsel for the petitioner has submitted that review is a substantive right, it is the creation of the Statute which cannot be extended to a litigant, unless it is so provided by the Statute. Learned counsel in support of this contention has referred to the case of "Muzaffar Ali vs. Muhammad Shafi" (PLD 1981 SC 94). He has submitted further that the provisions of Land Revenue Act provide only one review. No provision of law under the relevant statute provides second review. Learned counsel in this respect found support from the case of "Ghulam Muhammad vs. Member, (Judicial-III), Board of Revenue Punjab, Lahore" (2005 CLC 1512). He has further added that learned Member Judicial-I, Board of Revenue Punjab Lahore, dismissed the first review application being barred by 2 years and 11 months.
Learned counsel for the respondents, on the other hand, has fully supported the impugned order. Learned counsel has submitted that the order impugned is not a review in stricto senso. Respondent No. 1 has granted the relief to the petitioner on the principle of equality between the citizens. Learned counsel has referred to the case of "Mst. Noor Begum and others vs. Member, Board of Revenue and others" (1989 SCMR 285) and "Fazal Hussain vs. Walidad Khan and 22 others" (1996 CLC 1907) to contend that the second review is competent on different grounds between the different parties and there is no bar for the second review. Learned counsel has lastly contended that a litigant who has not taken any legal proceedings, is entitled under the rule of good governance to the benefit of judgment which covers the case of such litigant in the identical circumstances. Learned counsel has vehemently urged that rules of good governance demand that the benefit of judgment of Hon'ble Supreme Court be extended to the appealing or the non-appealing party equally.
I have heard the learned counsel for the parties and perused the material available on the record.
There is no cavil with the proposition that review is a substantive right and is always creation of the relevant Statute on the subject. Power of review is available or can be exercised, only when the Statute expressly bestows any power of review. This jurisdiction cannot be exercised when, it is not specifically provided and the Court cannot grant relief by invoking the inherent powers on the assumption that the review, in fact, is the continuation of the proceedings. While saying I am guided by the dictum of law laid down by Hon'ble Supreme Court in the case of "Muzaffar Ali vs. Muhammad Shafi" (PLD 1981 S.C. 94).
The power of review has been conferred upon Board of Revenue by virtue of Section 8 of the West Pakistan Board of Revenue Act (XI) of 1957. The relevant provisions of law are re-produced for ready reference.
"Review of orders by the Board.--(1) Any person considering himself aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made, or on account of some mistake or error apparent on the face of the record, desires to obtain a review of the decree passed or order made against him, may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require.
(2) Every application for a review of a decree or order under sub-section (1) shall be made within ninety days from the date of that decree or order."
The above provisions of law provide that review is competent when new and important matter or evidence is discovered, which was not within the knowledge of the party despite exercise of due diligence and which was not produced by the party at the time when the order or decree was passed. Additionally, the power to review can be exercised on account of some mistake or error apparent on the face of the record. In the instant case, nothing new was placed before Respondent No. 1 at the time of the second review. Respondent No. 1 entertained the second review application on two grounds namely the respondents had long association with the land in dispute which was in their occupation for the past 30 years and there were precedents (order dated 6.7.1995 passed in B.O.R. No. 2395/1995) of sale of land by Board of Revenue to the occupants in continuous possession. These grounds were urged before Respondent No. 1 at the time of first review application. Nothing new was agitated in the second review. Mr. Maqbool Ahmad Khan, Member Judicial-I, Board of Revenue Punjab, Lahore considered all these contentions and incorporated the same in para-3 of his order dated 6.5.2002. The then learned Member Board of Revenue, refused to review the order as the respondents have filed the review application after the lapse of two years and 11 months. The respondents filed second review application on 10.6.2002, on which the impugned order was passed. The period for filing a view application in 90 days from the order. Respondent No. 1 has entertained the review application ignoring the period of limitation prescribed by law, while his predecessor had already declined to review the order considering the application being barred by limitation. The impugned order suffers from legal infirmity, it has been passed, ignoring the express provisions of law and is not sustainable. Additionally, no provision exists under the law to allow the second review application, before the Board of Revenue. A learned Division Bench of this Court in the case of "Province of Punjab vs. Muhammad Akram (2004 YLR 915) has held that the Court cannot do what the statute expressly forbids. The order passed on the first review application, rejecting the review application, attained finality, as it has not been challenged before any other forum.
The upshot of the above discussion is that the impugned order (passed in the second review application) is without any lawful authority, in excess of jurisdiction. It has no legal effect.
Resultantly, this petition is allowed, the impugned order dated 7.12.2004 is set aside, with the result that order dated 6.5.2002 passed in first review application, is maintained. No order as to costs.
(Rafaqat Ali Sohal) Petition allowed.
PLJ 2006 Lahore 812
Present: Muhammad Sair Ali, J.
GHULAM HUSSAIN and another--Petitioners
versus
MUHAMMAD HANIF (deceased) Represented by L.Rs. and others--Respondents
C.R. No. 347 of 1999, heard on 24.3.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Limitation Act (IX of 1908)--Ss. 12(2) & (3)--Revision petition--Delay of 97/98 days--Maintainability--Decision of subordinate Court is to be availed of within 90 days--Provisions of Ss. 115 and 12 CPC would only mean that excluding the period consumed in obtaining the certified copies--Civil revision shall be filed within 90 days--Revision dismissed as being barred by time. [P. 815] B & D
(ii) Civil Procedure Code, (V of 1908)--
----S. 115--Limitation Act (IX of 1908), S. 12--Supporting pleadings--Filing of support pleadings and the documents along with the civil revision cannot reinforce the case. [P. 815] C
PLD 2003 Peshawar, 217.
(iii) Limitation Act, 1908 (IX of 1908)--
----S. 12(2)(3)--Separately supplied copies--Computation--Separate applica-tions on different dates of decree and judgment--Petitioners could have claimed that minus the overlapping period--They were entitled to compute the limitation from the later date. [P. 814] A
Malik Noor Muhammad Awan, Advocate for Petitioners.
Mr. Naveed Shahryar Sheikh, Advocate for Respondent No. 1
Mr. Muhammad Sharif Butt, Advocate for Respondent Nos. 12, 17, 46, 48 & 49.
Date of hearing : 24.3.2006.
Judgment
This civil revision was filed on 18.1.1999 against judgment and decree dated 12.10.1998 passed by the learned Addl. District Judge, Kharian confirming findings of the learned trial Judge passed in his judgment and decree dated 16.5.1988 and thus dismissing appeal of the petitioners. Admittedly, an application for the grant of certified copies of the impugned appellate judgment and decree was made on 22.10.1998. The certified copies of the said judgment and decree were immediately prepared and delivered to the petitioners on the same date i.e. 22.10.1998.
The learned counsel for the parties computed the period of limitation jointly and stated that the present civil revision was filed after 97/98 days of the appellate judgment and decree dated 12.10.1998. The learned counsel for the respondents seriously objected that the civil revision as such was barred by time and had been filed by the petitioners after seen or eight days of the period of limitation.
The learned counsel for the petitioners through a valiant effort to explain his stand point that the civil revision was within time, relied upon the joint reading of Section 115 of the Civil Procedure Code and Section 12 of the Limitation Act. The consequence which he endeavoured to canvass was that Section 115 CPC compulsorily required filing of the civil revision along with the "copies of pleadings, documents and order of the subordinate Court". He thus stated that the time consumed for obtaining the certified copies of the pleadings and documents have also to be reckoned in computation of the period of limitation. Pressing the provisions of Section 12 of the Limitation Act to the benefit of his client, the learned counsel for the petitioners relied upon sub-section (3) thereof to state that "the time requisite for obtaining a copy of the judgment from which it is founded shall also be excluded." He thus stated that the petitioners' civil revision as filed was not beyond the period of limitation because the petitioners applied for the grant of certified copies of the judgment and decree dated 16.5.1998 of the learned trial Court and judgment and decree dated 23.12.1988. The same were prepared and delivered on 14.1.1999. He thus stated that the period of limitation was to be computed by the exclusion of time also consumed in obtaining the trial Court's judgment and decree.
Heard.
The endeavour made by the learned counsel for the petitioners to save the civil revision is interestingly intriguing. His arguments are however based upon part reading of the provisions of Section 115 of the Civil Procedure Code and Section 12 of the Limitation Act. Second Proviso to sub-section (1) of Section 115 CPC being relevant is referred to here. It prescribes that "such application shall be made within 90 days of the decision of the subordinate Courts." In the present case, the decision by the learned First Appellate Court was made on 12.10.1998 which infact was challenged through the present civil revision on the purported ground of material irregularity committed by the learned First Appellate Court by not accepting petitioners' appeal. The petitioners had filed their appeal against the judgment and decree dated 16.5.1998 passe by the learned trial Court. Appeal before the learned First Appellate Court was within time which on consideration and hearing was dismissed by the learned First Appellate Court through judgment and decree dated 12.10.1998. The civil revision against the trial Court's judgment and decree dated 16.5.1998 before this Court was not maintainable because the remedy of appeal was availed of by the petitioners. The civil revision was thus filed by the petitioners against the judgment and decree dated 12.10.1998 of the learned First Appellate Court.
The provisions of sub-section (3) of Section 12 of the Limitation Act also do not help the case of the petitioners. Without going into the question of applicability of the provisions of Section 12 of the Limitation Act to the civil revisions, per the observations made in the case of "Faizullah and others vs. Rustam & others" (2003 PLD Peshawar 217), cumulative reading of sub-sections (2) & (3) of Section 12 of the Limitation Act shows that the time requisite for obtaining the copy of a decree is excludable as well as the time requisite for obtaining the certified copy of the judgment on which such decree is founded. Sub-section (3) of course specifically prescribes that "the time requisite for obtaining a copy of a judgment from which it is founded shall be excluded."
The learned counsel for the petitioners intriguingly interprets that the judgment referred to in sub-section (3) of Section 12 of the Limitation Act does not relate to the judgment upon which the decree appealed against or reviewed against or sought to be revised is founded upon but the same relates to the judgment of the Court of first instance against which the appeal was filed and stood decided. Such interpretation will be defeative of the law of limitation; the object of which is to put a period cap for each available remedy. Sub-section (2) talks of the decree appealed against etc. and sub-section (3) obviously relates to the judgment upon which such decree is founded. The provisions of sub-section (3) cannot be stretched to include the judgment or the decree against which the remedy of appeal was availed of.
Furthermore, in the present case, the date of the application for the certified copies and that of the supply of the certified copies respectively of the decree and the judgment were not different therefore excludable period under the provisions of said sub-sections (2) & (3) will be the same. Subject to the availability of the period of limitation, if separate applications on different dates had been made to obtain the certified copies of the decree and the judgment and the copies thereto had been separately supplied on different dates, the petitioners could have claimed that minus the overlapping period, they were entitled to compute the limitation for civil revision from the later date.
It is also well settled that the application for obtaining a copy of the judgment upon which is founded, even if made separately, has to be filed within the period of limitation to avail of the provisions of Section 12(2) & (3) of the Limitation Act.
This provision does not leave it to the option of a litigant or a petitioner to apply for and obtain a copy as and when he chooses and thus develop a case for the exclusion of time. He cannot be allowed the freedom to apply for and obtain the certified copies of the impugned decree or its judgment on different dates outside the prescribed period of limitation only with the object to save the period of limitation. The petitioner has to restrict himself to the normal statutory requirements in keeping with the provisions of limitation prescribed to seek copies and the consequence exclusion.
In the present case, the judgment and decree was passed by the learned Addl. District Judge, Kharian on 12.10.1998. The application to obtain certified copies of the judgment as well as the decree was made on 22.10.1998. The same were delivered on the same date i.e. 22.10.1998. The civil revision was filed against the said judgment and decree dated 12.10.1998 on 18.1.1999 which was beyond the period of limitation.
Furthermore, the above referred second proviso to Section 115 CPC provides that the decision of the learned subordinate Court is to be availed of within "90 days of the decision of the subordinate Court". This provision is though parallel to the provisions of sub-sections (2) & (3) but is not in conflict therewith. Even if the provisions of Section 115 CPC and those of Section 12 of the Limitation Act are read as interwoven, no contradiction arises. These provisions would only mean that excluding the period consumed in obtaining the certified copies of the decree and the judgment upon which such decree is founded, the civil revision shall be filed within 90 days thereof.
Also that the first proviso to Section 115 CPC only requires furnishing of copies of the pleadings and the documents in the civil revision over and above the impugned order/decree/judgment of the subordinate Court to support the civil revision. This requirement of filing the support pleadings and the documents along with the civil revision cannot by any stretch reinforce the case of the petitioners and justify delayed filing of the civil revision on the pretext of supply of the certified copies of such documents after the prescribed period of limitation for the civil revision.
Consequently, this civil revision filed beyond the prescribed period of 90 days is hereby rejected as being barred by time. There shall be no order as to the costs.
(Rafaqat Ali Sohal) Revision dismissed.
PLJ 2006 Lahore 816
Present: Syed Sajjad Hussain Shah, J.
MUHAMMAD NAWAZ--Petitioner
versus
ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE, JHANG and 12 others--Respondent
W.P. No. 2185 of 2006, decided on 4.4.2006.
Muslim Marriage Act,--
----S. 2(7)--Entitlement to obtain a decree for dissolution of marriage--Repudiation of marriage--Validity--By oral or even by conduct seeking rejection of marriage and if minor was entered into second marriage on attaining age of puberty it would have sufficient proof of repudiating her marriage and subsequent marriage would be valid--Held: No offence was made out therefore, no direction could be issued for registration of criminal case--Petition dismissed. [P. 817] A
Mr. Zafar Iqbal Chowhan, Advocate for Petitioner.
Mr. Faisal Ali Qazi, AAG for Responents.
Date of hearing : 4.4.2006.
Order
Petitioner Muhammad Nawaz through the instant petition has sought direction to Respondent No. 3 for registration of criminal case against the Accused/Respondents Nos. 4 to 13 according to complaint (annexure-H) of the petitioner.
Learned counsel for the petitioner contends that Nikah of his brother Ejaz was performed with Mst. Nasreen Bibi d/o Falaksher Respondent No. 5 in presence of her father when she was of the age of 5/6 years and after attaining the puberty, Mst. Nasreen never repudiated her Nikah and without dissolution of marriage from Ejaz Hussain, brother of the petitioner, she performed another Nikah with one Muhammad Rafique on 8.10.2005. The petitioner made certain Jirgas for Rukhsati of Respondent No. 5 but of no avail and on his complaint, she filed a suit for dissolution of her marriage on 23.12.2005 which was withdrawn and thereafter filed a suit for jactitation of marriage. Further contends that second nikah is illegal and, therefore, a direction be issued to the police for the registration of the case.
On the other hand, learned AAG opposed the instant petition and contends that no nikah was ever performed with Ejaz and only Due-e-Khair to this effect has been made, when she was of the age of 4/5 years.
Arguments heard. Record perused.
According to Section 2 of Muslim Marriage Act which provides that a woman marriage under Muslim Law shall be entitled to obtain a decree for dissolution of her marriage on any one or more than of the following grounds. Sub-section (7) of Section 2 is reproduced below:--
"When she having been given in marriage by her father or other guardian before she attained the age of 16 years repudiated the marriage before attaining the age of 18 years provided that the marriage has not been consummated".
The law does not prescribe any particular form of the procedure for repudiation of marriage, it may be by oral or even by conduct seeking rejection of marriage and if the minor is entered into second marriage on attaining the age of puberty it would have sufficient proof of repudiating her marriage and subsequent marriage would be valid.
In view of the above, prima facie no offence is made out against Respondents Nos. 4 to 13, therefore, no direction could be issued for registration of criminal case as prayed for. Hence, this petition is dismissed.
(Rafaqat Ali Sohal) Petition dismissed
PLJ 2006 Lahore 817 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
Mst. FATIMA & anothers--Petitioners
versus
KHUSH NASEEB KHAN and others--Respondent
C.R. No. 305/D of 1991, heard on 24.5.2005.
(i) Punjab Rehabilitation Settlement Scheme--
----Para 46--Suit for inheritance--Rule of law--Inheritance in the case of non-confirmed allottee is to be governed by Para 46 of Punjab Rehabilitation Settlement Scheme. [P. 819] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Rule of procedure--Plea was not required to be taken as it required first to be established and then to be rebutted by the opposite party--Petitioners entitlement to the relief under law Section 115 CPC authorities Court to examine the records and pass orders as are deemed to be just & proper--Petition allowed. [P. 819] B, C & D
Hakim Amir Bukhsh Awan, Advocate for Petitioners.
Mr. Kanwar Intizar Muhammad Khan & Mr. Muhammad Riaz Latifi, Advocates for Respondents.
Date of hearing : 24.5.2005.
Judgment
On 28.11.1984, the petitioners filed a suit against the respondents. According to them Abdul Ghafoor was the last male owner of the suit land mentioned in the plaint. He was allotted the same. On his death apart from his sons i.e. three defendants in the case he was survived by Abdul Shakoor a 4th son who died after death of Abdul Ghafoor. He was survived by Petitioner No. 1 as widow and Petitioner No. 2 as daughter and son Jafar Khan who died after Abdul Shakoor and his estate devolved upon the petitioners. However, the defendants in the case got mutation of inheritance No. 881 attested to the exclusion of Abdul Shakoor and consequently the petitioners. A declaration was accordingly sought. The petitioners while admitting that Abdul Shakoor was son of the said Abdul Ghafoor and that the petitioners are his widow and daughter stated that whereas Abdul Ghafoor died in 1957, Abdul Shakoor died in the year 1947 and as such the land has been accordingly mutated in their favour to the exclusion of the petitioner lady. It was also denied that Abdul Shakoor was survived by a son. Issue were framed. Evidence of the parties was recorded. Learned trial Court found that Abdul Shakoor had in fact predeceased Abdul Ghafoor and that he was not survived by a son. The suit was dismissed on 8.12.1987. Learned Addl. District Judge, Multan dismissed first appeal filed by the petitioners on 26.2.1991.
Learned counsel for the petitioners states that he would not be questioning the said finding and contends that the mutation of inheritance was attested at a point of time when Abdul Ghafoor was not a confirmed allottee and as such the matter was to be governed by Para-46 and 46-A of the Rehabilitation Scheme. Learned counsel for the respondent, on the other hand, object that they have rather been taken by surprise and as this plea was never taken in the trial Court or the appellate Court or even at the time of admission of this C.R. Kanwar Intizar Ahmad, Advocate, has cited a judgment in the case Muhammad Siddiq and others versus Fateh Muhammad (NLR 1988 SCJ 592) to urge that in this revision petition this Court would not be comprent to entertain the said plea.
I have gone through the copies of the records. It is an admitted position that Abdul Ghafoor had four sons, i.e. the defendants in the suit and the Said Abdul Shakoor. It is also admitted that Petitioner No. 2 is the daughter of said Abdul Shakoor. Now learned counsel for the petitioner has conceded that Abdul Shakoor predeceased Abdul Ghafoor. The other admitted fact on the record is that Mutation No. 881 (Ex. P/6) was taken up and attested at a point of time when Abdul Ghafoor was not a confirmed allottee. This being so, upon admitted facts on record the Petitioner No. 2 is entitled to inherit the property of her grand father to the extent of her share in the estate of her father i.e. it will be deemed that Abdul Shakoor survived his father and then Petitioner No. 2 inherited on the death of her father her Muslim law share.
Needless to state that it is by now well settled that inheritance in the case of non-confirmed allottee is to be governed by Para-46 of the Punjab Rehabilitation Settlement Scheme. Reference be made to the case of Zafarullah and 23 others versus Muhammad Siddiq and others (PLD 1980 S.C. 76). Now coming to the said objection of the learned counsel of the Respondents, I do find that through out the petitioners had been fighting with the plea that Abdul Shakoor survived Abdul Ghafoor. However, other admitted facts have already been referred to by me about. I further find that it was on 3.5.2005 that the learned counsel for the petitioner raised the said contention in presence of the learned counsel for the contesting parties and If I may say so, they cannot feign surprise. So far as the said judgment being relied upon by Kanwar Intizar Muhammad Khan, Advocate is concerned, I have gone through the same. Their lordships specifically observed that the plea would not be allowed to be taken as it requires first to be established and then to be rebutted by the opposite party and this would cause prejudice. In the present case upon admitted said facts, Petitioner No. 2 is entitled to the relief under the law. Section 115 CPC authorises this Court to examine the records and to pass such orders as are deemed to be just and proper. Said relief flows from the admitted facts on the record and the Court will not wait for a party to take a plea of law in order to enable it to grant relief. To my mind even if the plea had not been taken, upon the said facts of the case, this Court is bound to grant the relief to which the said lady is entitled.
C.R. is accordingly allowed. Both the impugned judgments and decrees, passed by both the learned Courts below are set aside. The suit filed by the petitioners is decreed inasmuch as Mst. Jafri Begum daughter of Abdul Shakoor is held entitled to 1/2 share out of 1/4 share while Abdul Shakoor might have inherited from Abdul Ghafoor, his father. In other words, Mst. Jafri Begum, plaintiff/Petitioner No. 2 is found entitled to 1/8 share in the suit land, mentioned in the plaint and is declared to be the co owner in the suit land to the extent of 1/8 share. Mutation No. 881 (Ex. P. 6) shall stand revised accordingly. No orders as to costs.
(Hina Anwar) Revision allowed.
PLJ 2006 Lahore 820 [Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
Mst. JAMILA BIBI--Petitioner
versus
SHABIR AHMAD and 2 others--Respondents
W.P. No. 5134 of 2005, heard on 19.10.2005.
Guardians and Wards Act, 1890 (VIII of 1890)--
----S. 25--Constitution of Pakistan (1973) Art. 199--Custody of minor boy of over 7 years--Contest between father and maternal grandmother--Courts below handing over custody of minor to father on sole ground that he had crossed age of 7 years--Legality--Despite specific issue regarding welfare of minor, neither Guardian Judge nor Appellate Court bothered to record findings with reference to evidence of parties to that effect--Custody of minor boy over 7 years of age can only be handed over to father if the same was in welfare of minor--Judgment of two Courts below being violative of law declared by Supreme Court in Sardar Hussain's case (PLD 2004 SC 357) were not maintainable and the same were set aside--Case was remanded to Guardian Judge to pass fresh judgment after hearing arguments of both parties on issue relating to welfare of minor. [P. 822] A
PLD 2004 SC 357; 1998 SCMR 1593; 1988 SCMR 608 and Muhammadan Law by D.F.. Mulla Para 357, ref.
Arshad Latif, Advocate for Petitioner.
Ch. Khalil Asghar Sindhu, Advocate for Respondents.
Date of hearing : 19.10.2005.
Judgment
Through this Constitutional petition, Mst. Jamila Bibi petitioner has sought annulment of judgment dated 7.4.2005 passed by learned Judge Family Court/Guardian Judge accepting application of respondent Shabir Ahmad moved under Section 25 of the Guardians & Wards Act, thereby directing the delivery of custody of minor Ali Raza from Mst. Jamila Bibi petitioner to Shabir Ahmad; and also the judgment dated 13.6.2005 passed by learned Additional District Judge, dismissing petitioner's appeal against the judgment of learned Guardian Judge.
ISSUES:
Whether the welfare of minor lies with the applicant, hence, he is entitled to his custody?
Relief.
The parties led their respective evidence. On conclusion of the trial, the learned Guardian Judge vide judgment dated 7.4.2005 accepted the said application and directed that custody of the minor be delivered to Shabir Ahmad, respondent. Aggrieved against the said decision, Mst. Jamila petitioner filed an appeal which was dismissed by learned Additional Sessions Judge vide judgment dated 13.6.2006. Hence, this Constitutional petition.
It has been argued by learned counsel for the petitioner that neither the learned Guardian Judge/Respondent No. 3 nor the learned Additional District Judge/Respondent No. 2 recorded any findings about the welfare of the minor and both the judgments have been passed on the assumption that on crossing the age of seven years, father automatically becomes entitled to obtain custody, whereas, it is an established law that despite having crossed the age of seven years, in the absence of any specific findings by the learned Guardian Judge about welfare of the minor, custody of the minor could not be handed over to the father, on account of expiry of above mentioned age alone. In support of his contentions, the learned counsel has placed reliance on the case "Sardar Hussain, etc. versus Mst. Parveen Umar, etc." (P.L.D. 2004; S.C. 357) and "Mst. Nighat Firdous versus Khadim Hussain" (1998 SCMR 1593).
On the other hand, Ch. Khalil Asghar, Advocate appearing on behalf of the respondent argues that apart from recording findings on the question of delivery of minors' custody after attaining the age of seven years, the learned Guardian Judge also came to the conclusion that on appreciation of evidence that welfare of the minor lay in favour of Shabir Ahmad, father being his natural guardian. Learned counsel further contends that the judgments cited by learned counsel for the petitioner are distinguishable, inasmuch as, in the cited judgments, the dispute was between the father and mother, whereas, in the present case dispute is between father and maternal grandmother. In support of his arguments, learned counsel for that respondent has placed reliance on the case "Sh. Abdus Salam another versus Additional District Judge, Jhang and 2 others" (1988 SCMR 608).
I have considered the arguments of learned counsel for the parties, gone through the record and also perused the cited case law.
The only question requiring determination in this Constitutional petition is as to whether, without recording any findings about the welfare of minor, the learned Guardian Judge was justified in handing over custody of the minor to the respondent on the sole ground that he had crossed the age of seven years. Despite a specific issue i.e. Issue No. 1 regarding welfare of the minor, neither the learned Guardian Judge nor the learned Additional District Judge bothered to record findings with reference to the evidence of the parties, to this effect and they were mainly persuaded with the provisions of para 357 of Muhammadan Law by D.F. Mulla (Pakistan Edition) entitling the father to obtain custody of a body over seven years of age, whereas the same is not a rule of thumb in view of the law declared by the Hon'ble Supreme Court of Pakistan in the above referred judgment, that custody of a minor boy over seven years of age can only be handed over to the father where it is in the welfare of the minor. I am therefore, satisfied that the judgments recorded by two Courts below being violative of the law declared by the Hon'ble Supreme Court, are not sustainable and are set-aside. Resultantly, this Writ Petition is allowed and the matter is remitted to the learned Guardian Judge/Respondent No. 3 with the direction to pass a fresh judgment after hearing arguments of both the parties in the above terms. Parties are directed to appear before the learned Guardian Judge/Respondent No.3 on 14.11.2005. This being a guardianship matter, the learned trial Court shall try to decide the case as early as possible but not later than 23.12.2005.
(Aziz Ahmad Tarar) Case remanded
PLJ 2006 Lahore 822 [Rawalpindi Bench Rawalpindi]
Present: Abdul Shakoor Paracha, J.
MUSSARRAT WARIS--Petitioner
versus
MUHAMMAD AFSAR KHAN and 4 others--Respondents
W.P. No. 1571 of 2005, heard on 27.10.2005.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 491--Constitution of Pakistan (1973), Art. 199--Dismissal of petition under S. 491 Cr.P.C. by Additional Sessions Judge concerned assailed--Legality--Petitioner seeking custody of her three minor children from father of minors who had allegedly snatched them from their mother and turned her out of his house--Petitioner's application under S. 491 Cr.P.C. was dismissed--Male child of petitioner and her husband is below 7 years while female children are aged 7 and 6 years--All three children having not attained puberty, mother is entitled to custody of her male child until he has completed age of 7 years and female children till they have attained puberty--Mother can impart love and affection to minors being of tender age--Whether welfare of minors essentially lies with mother or father is yet to be determined by Guardian Judge in a petition under S. 25, Guardian and Wards Act, if filed--Custody of minors with respondent/father if not illegal is at least improper, therefore, order of Additional Sessions Judge concerned, is set aside and respondents are directed to hand over custody of minors to mother/petitioner. [P. 825] A
PLD 1997 SC 852; 1997 SCMR 1480; PLJ 1996 Cr.C. 1493; 2004 SCMR 990; 1988 SCMR 1891 and PLD 2004 SC 1, ref.
Ms. Nahida Mehboob Elahi, Advocate for Petitioner.
Ch. Musawar Iqbal Javed Anwar, Advocate for Respondents.
Dates of hearing : 19.10.2005 & 27.10.2005.
Judgment
Petitioner Musarrat Waris through the instant petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 assails the order dated 25.4.2005, passed by the learned Additional Sessions Judge, Rawalpindi, whereby, the petitioner's application under Section 491 Cr.P.C. for recovery of the minors namely Samita Khan aged 7 years, Janita Khan aged 6-years and Muhammad Asghar Khan aged 4 « years was dismissed.
The brief facts of the case are that the petitioner was married to Respondent No. 1 on 18th of December, 1996 and out of the wedlock above named three children were born. A matrimonial dispute arose between the parties and it was alleged that Respondent No. 1 alongwith his mother and sisters (Respondents Nos. 2 & 3) ill treated the petitioner and also deprived minor children of her proper love and affection and finally the petitioner was turned out of the house of Respondent No. 1 in April, 2005 by snatching the children. The custody of the minors with the respondents is illegal and improper, therefore, petitioner filed a petition in the nature of habeas corpus under Section 491 Cr.P.C. against Respondents Nos. 1 to 3 for the recovery of her minor children and for the delivery of their custody to the petitioner, but the same was declined to the petitioner, through the impugned order dated 25.4.2005, hence, this petition.
At the outset the learned counsel for the respondents contends that this Court lacks jurisdiction u/S. 491 Cr.P.C. to hand over the custody of the minors to mother because they are living with the father/Respondent No. 1, happily, who is the natural guardian of the minors and in the circumstances, the custody of the minors with Respondent No. 1 can not be termed as illegal or unlawful. Above, all during the pendency of the petition before the learned Additional Sessions Judge, Rawalpindi, all the minors categorically denied to join the company of their mother/petitioner. Further contends that the petitioner has an alternate remedy of filing a petition under Section 25 of the Guardians and Wards Act (VIII of 1890) to have the custody of the minors.
On the other hand, the learned counsel for the petitioner on the strength of the case reported as Nisar Muhammad and another vs. Sultan Zari (PLD 1997 SC 852) contends that availability of another legal remedy (under Section 25 of the Guardians and Wards Act (VII of 1890) is no bar and is not a valid ground to refuse the application for habeas corpus by the parent or guardian of the minor who is entitled to have his or her custody, where the minor is being illegally detained by the other person. She contends that Muhammad Ashar Khan, the male child is below the age of 7 years and the rest of the two female children have not attained the age of puberty, therefore, the petitioner-mother, prima facie, is entitled to (Hizanat) for the limited purpose of Section 491 Cr.P.C. therefore, the custody of the aforesaid minors with the respondents be declared as illegal or at least improper.
The learned counsel for the respondents, on the other hand, while relying on the case reported as Abdul Rehman Khakwani and another vs. Abdul Majid Khakwani and 2 others (1997 SCMR 1480) contends that where the dispute between the parties is essentially regarding custody of the girl and no question of any forcible detention arises, such is essentially a matter for Guardians Judge to resolve and no justification is made out in such a case for issuing a direction in the nature of a Writ of Habeas Corpus. Further relies on the case reported as Sherimati Pari Bai vs. Amrat Lal etc. (PLJ 1996 Cr.C. (Karachi) 1493) in support of his arguments.
I have heard the arguments of the learned counsel for parties and perused the record with their assistance.
In the case reported as Mst. Shaista Naz vs. Muhammad Naeem Ahmed and another (2004 SCMR 990) while interpreting Sections 17 and 18 of the Guardians and Wards Act (VIII of 1890), the honourable Supreme Court ruled that in the matter pertaining to the custody of minors of tender ages, High Court is empowered to issue directions in the nature of habeas corpus u/S. 491 Cr.P.C. if the custody of the minor was improperly disturbed. Section 491 Cr.P.C. provides a more efficacious, speedy and appropriate remedy in the case of illegal or improper custody of the minor and the High Court can pass an order regarding the temporary custody without prejudice to the right of the parties for final determination of the dispute pertaining to the custody of the minor by the Guardians and Wards Court but the remedy under Section 491 Cr.P.C. is not available to a person for seeking declaration regarding his suitability for having custody of minor on any ground which is linked with the welfare of the minor. In the case of Muhammad Javed Umrao vs. Miss Uzma Vahid (1988 SCMR 1891) it has been ruled that the matter to be dealt with by Section 491 Cr.P.C. and Guardians and Wards Act are entirely different--Provisions are neither mutually exclusive nor one overlaps or destroys the other.
In the case reported as Mst. Khalida Parveen vs. Muhammad Sultan Mehmood and another (PLD 2004 SC 1) the honourable apex Court ruled that although ordinarily a petition under S. 491 Cr.P.C. is not found to be competent when there is no element of illegal custody by the father of his own child, but in the welfare of the child as well as to ensure that the rights conferred upon the child are fully protected in a suitable manner, Court can also pass appropriate orders in exercise of its inherent jurisdiction.
In the instant case where the male child is below the age of 7 years namely Muhammad Ashar Khan and the female children namely Samita Khan aged 7-years, Janita Khan aged 6-years have not attained the age of puberty the petitioner would have a right of khizanat. Under the principles of Mahommedan Law, by D.F. Mulla's the mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven year and her female child until she has attained puberty.
The mother can impart love and affection to the minors being of tender age. The statements of the children before the Court regarding the father/Respondent No. 1, being minors was of no value. Whether the welfare of the minors essentially lies with the mother or the father is yet to be determined by the Guardian Judge, in a petition u/S. 25 of the Guardians and Wards, if filed.
Before parting with this judgment it must be noted that if the father-respondent filed a petition u/S. 25 of the Guardians and Wards before the learned Guardian Judge, for custody of the minors that shall be decided of its own, without being influenced by the present order of this Court.
On receipt of the application u/S. 12 of the Guardians and Wards Act, the learned Guardian Judge shall also provide opportunity to the father to meet with the minor children, regularly. In this context the Court shall fix a schedule of meeting of the father with the minors during vacations.
With these observations and directions, the instant writ petition stands disposed of.
(Aziz Ahmad Tarar) Petition accepted.
PLJ 2006 Lahore 826 [Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
ZEESHAN SHEHZAD and another--Petitioners
versus
DISTRICT RETURNING OFFICER and 10 others--Respondents
W.P. No. 4576 of 2005, decided on 25.8.2005.
Punjab Local Government (Election) Rules, 2005--
----R. 12--Constitution of Pakistan (1973) Art. 199--Disputed question of fact--Jurisdiction--Respondents for seat of Nazim and Naib Nazim filing more than one nomination papers in same electoral ward in different panels--On specified date i.e. 24.7.2005 one of such nomination was rejected as withdrawn, while the other was accepted--Questions to which of two nomination papers was earlier accepted/allowed by Returning officer in- disputed question of fact which cannot be gone into in Constitutional petition and for that matter petitioner has got alternate remedy by way of filing election petition before Election Tribunal--Election Tribunal has got ample power/jurisdiction to decide about question of validity or otherwise of nomination of respondent/Returned candidates. [P. 830] A
2003 CLC 64; PLD 2002 SC 184 and 2003 SCMR 400 ref.
M/s M. Arif Alvi, M. Javed Iqbal Addum and Sardar Mehboob, Advocates for Petitioners.
Mr. M. R. Khalid Malik, Addl. A.G. and Pir Muhammad Asif Shah, Advocate for Respondents Nos. 4 to 11.
Malik M. Tariq Rajwana, Advocate for Respondents Nos. 4 to 7.
Date of hearing : 24.8.2005.
Judgment
Petitioners were candidates of the seat of Nazim and Naib Nazim respectively of Union Council No. 16, Multan (although having lost the said election) filed this Constitutional petition seeking annulment of order dated 26.7.2005 passed by the learned District Returning Officer as an Appellate Authority, Multan whereby the appeal filed by Respondents Nos. 4 and 5 against the rejection of their nomination papers for the said election by the Returning Officer against the order dated 24.7.2005 was allowed their nomination papers were accepted and they were permitted to contest the election. This Constitutional petition was admitted for regular hearing on 28.7.2005 and it was directed that the matter shall be fixed for hearing on 22.8.2005 although no interim order was passed on the said date yet on 8.8.2005 while disposing of C.M. No. 1429/05 it was made clear that the result of the seat in question shall be subject to the ultimate decision of the Constitutional petition in hand. On 22.8.2005 Respondents Nos. 5 to 7 entered their appearance through the learned counsel and also filed written reply and the case was adjourned for today i.e. 24.8.2005 for final hearing. Today arguments on behalf of both the learned counsel have been heard and record perused with the assistance of both the learned counsel for the parties.
It has been vehemently argued by Mr. Muhammad Arif Alvi Advocate learned counsel for the petitioner that in fact seven following joint sets of nomination papers for the election of Nazim and Naib Nazim were filed.
Wajad Hussain Respondent No. 6 alongwith Muhammad Aslam Respondent No. 5.
Amjad Ali Respondent No. 4 alongwith Muhammad Aslam Respondent No. 5.
Amjad Ali Respondent No. 4 alongwith Wajad Hussain Respondent No. 6.
Saadat Ali, Respondent No. 7 alongwith Wajad Hussain Respondent No. 6.
Khasif Ali Respondent No. 8 alongwith Sajjad Hussain Respondent No. 9.
Rana Muhammad Tariq Respondent No. 10 alongwith Sajjad Abid Shah Respondent No. 11. and lastly.
Zeeshan Shehzad Petitioner No. 1 alongwith Malik Zubair Akhtar Petitioner No. 2.
Since the dispute is between the present petitioners and Respondents Nos. 4 and 5 only, hence the remaining set of candidates need not be discussed in detail except the one pointed out above. The nomination papers of Respondents Nos. 4 and 5 at Serial No. 2 above were rejected by the Returning Officer vide order dated 24.7.2005 on the ground that since the nomination papers of Muhammad Aslam respondent as a Naib Nazim alongwith Wajad Hussain as Nazim (Respondent No. 6) at Serial No. 1 above were accepted earlier, hence the nomination papers of Muhammad Aslam Naib Nazim alongwith Amjad Ali Nazim would be accepted. Feeling aggrieved against the order of the Returning Officer Respondents Nos. 4 and 5 filed appeal before the learned District Returning Officer and the learned District Returning Officer, vide order dated 26.7.2005 allowed the same and they were declared to be a validly nominated candidates. The above mentioned order of the learned District Returning Officer has now been sought to be quashed through this Constitutional petition.
The grievance of the petitioner is that in terms of Rule 12 of the Punjab Local Council Rules 2005 the Respondents Nos. 4 and 5 could not have been considered as a validly nominated candidate as both the said respondents had joined different other persons as Nazim and Naib Nazim with them as shown above. The argument is that in terms of Rule 154(2) of the Punjab Local Government Ordinance it is mandatory that Union Nazim and Naib Nazim had to contest the election as a joint candidate and that under Rule 12 of the Punjab Local Government Election Rules 2005 candidate for the election of Nazim and Naib Nazim had to file a joint nomination papers meaning thereby that both the said candidates, i.e. Nazim and Naib Nazim must file one nomination paper as a joint candidate although they may file jointly more than one nomination paper but is no case either of them may file nomination paper by associating another person as a joint candidate other than the one with whom the nomination paper was actually filed, hence by filing different nomination papers with different persons for the election of Nazim and Nazim the Respondents Nos. 4 and 5 could not heave been considered as a validly nominated candidates and thus their nomination papers was rightly rejected by the learned Returning Officer which was erroneously and illegally set aside by the learned District Returning Officer through the impugned order. In support of this contention learned counsel has placed reliance on the case of "Sahibzada Farook Anwar Abbasi and another vs. Appellate Authority/District and Sessions Judge, Bahawalpur and 9 others (2003 CLC 64).
On the other hand Peer Muhammad Asif Rafi Advocate, appearing on behalf of Respondents Nos. 4 and 5 submits that as held by Hon'ble Supreme Court of Pakistan in the case of "Ch. Nazir Ahmad and others vs. Chief Election Commissioner and 4 others" (P.L.D. 2002 SC 184) this Constitutional petition is no more maintainable and that the only remedy available to the petitioner is to approach the Election Tribunal in terms of Section 63 of Punjab Local Government Election Rules 2005. His further contention is that although the Respondents Nos. 4 and 5 filed different nomination papers a detailed above yet the same was not fatal and as all the remaining nomination papers had been withdrawn by the contesting respondents, therefore, their appeal was rightly allowed by the learned District Returning Officer. The learned counsel for the respondents in support of his contention has placed reliance in the case of "Muhammad Jamil Akhtar and another vs. Appellate Authority, District Judge, Rawalpindi and 4 others" (2003 SCMR 400).
I have considered the arguments of both the learned counsel, perused the record with the assistance of the learned counsel and have also gone through the judgments referred above.
Prima facie the impugned order of learned District Returning Officer dated 26.7.2005 neither suffers from jurisdictional defect nor to be interfered with in view of the law declared by the Hon'ble Supreme Court of Pakistan in Jamil Akhtar's case referred to above. The relevant portion of the judgment of the Hon'ble Supreme Court of Pakistan is reproduced as below:--
"The examination of relevant rules would show that there is neither any restriction for a candidate to file more than one nomination papers in the same electoral ward in the different panels nor he is debarred to withdraw the nomination papers before the date of scrutiny and thus it would be entirely choice of the candidate to withdraw his nomination papers or not from any panel at any time before the scrutiny if he has filed more than one nomination papers and if no such withdrawal is made before the scrutiny, his candidature shall be determined on the basis of nomination papers first received by the Returning Officer and all remaining nomination papers shall be valid. The nomination papers which are withdrawn before the scrutiny would be deemed to have been not filed and therefore cannot be considered for declaring a person either to be a validly nominated candidate in the election or for rejection of this candidature. In the present case, Ansar appellant filed three sets of nomination papers in three different panels but subsequently he withdrew the nomination papers in panels of Badar Munir and Tahir Mehmood before the date of scrutiny of nomination papers therefore, the same could not be legally deemed to be pending for scrutiny and consequently the candidature of the petitioner for the purpose of election would be determinable on the basis of nomination papers available with the Returning Officer at the time of scrutiny. The District Returning Officer and the learned Judg in Chambers in the High Court having failed to properly attend the proposition in the light of the rules on the subject, were misguided in rejecting the nomination papers of the appellants.
However, one other aspect of the case to which much stress has been laid by the learned counsel for the petitioner. It is argued by the learned counsel for the petitioner that although Amjad Ali Respondent No. 4 withdrew his nomination paper filed by him alongwith Wajad Hussain as Naib Nazim before the scrutiny but the nomination paper of Muhammad Aslam Naib Nazim Respondent No. 5 alongwith Wajad Hussain Respondent No. 6 was accepted on the same day i.e. 24.7.2005 alongwith nomination paper of Muhammad Aslam respondent as Naib Nazim with Amjad Ali Nazim, Annexure B to this petition, hence Muhammad Aslam Respondent No. 5 could not be considered as a validly nominated candidate having got his nomination papers with different panel.
On the other hand, learned counsel for Respondents Nos. 4 and 5 has controverted the above contention of the learned counsel for the petitioner by arguing that in fact the nomination paper of Muhammad Aslam respondent alongwith Wajad Hussain was accepted by the Returning Officer erroneously and in the absence of the parties and on getting knowledge of the said mistake Respondents Nos. 5 and 6 immediately rushed to the Returning Officer and got the said nomination paper withdrawn which was accordingly allowed by the Returning Officer vide order dated 24.7.2005.
I have also considered the above mentioned contention of the learned counsel for the petitioner and have also examined the record available on the file.
The nomination form filed by Respondents Nos. 5 and 6 Annexure-K on the file and it is clearly indicated on the said nomination form that the same was rejected as withdrawn by the learned Returning Officer on the same day i.e. 24.7.2005. The question which of the two nomination papers Annexures A and B was earlier accepted/allowed by the Returning Officer is disputed question of fact which cannot be gone into in this Constitutional jurisdiction and for that matter petitioner has got an alternate remedy by way of filing election petition before the Election Tribunal appointed under Rule 64 of the Punjab Local Government Election Rules 2005 and in terms of Rule 76 of the said Rule the Election Tribunal has got ample jurisdiction to decide about the question of validity or otherwise nomination of Returned Candidate.
The upshot of the discussion is that this Constitutional petition has got no force and the same is dismissed. The petitioners may however, if so advised, file regular petition before the Election Tribunal when constituted and if any such petition is filed the Election Tribunal would be at liberty to decide all the disputed questions of facts and law raised in the petition after holding regular trial. No order as to costs.
(Aziz Ahmad Tarar) Petition dismissed.
PLJ 2006 Lahore 830
Present: Syed Hamid Ali Shah, J.
PAK CHINA CHEMICAL--Appellant
versus
DEPARTMENT OF PLANT PROTECTION and another--Respondents
F.A.O. No. 169 of 2005, decided on 2.8.2005.
(i) Arbitration Act, 1940 (X of 1940)--
----S. 34--Arbitration clause in agreement--Stay of proceedings in civil suit--Respondent claiming stay of suit and reference of matter to arbitration cannot claim the same in as much as, he has participated in proceedings and has filed written statement. [P. 836] D
(ii) Contract Act, 1872 (IX of 1872)--
----S. 201--Termination of agency--Essentials--Agency can only be terminated either by serving upon other party notice or as per express stipulation of contract. [P. 835] B
(iii) Contract Act, 1872 (IX of 1872)--
----S. 23--Contract in restraint of trade--Doctrine of--Applicability--Appointment of sole distribution/agent--Agreement relating to sole distribution agent--Condition imposed on principal not to sell goods covered by agreement inquestion through other agents and that agent could not deal with competing goods--Condition so incorporated in such agreement when not wholly one sided and when the same operates during currency of period of contracts, such condition cannot be regarded in restraint of trade provided that condition so incorporated in agreement was reasonable, on equal bargaining strength and the same was not unilateral and operates during currency of agreement--Appellant after lapse of period of agreement has no right to claim privilege of sole agent--Agency would stand terminated after lapse of prescribed period especially when quantity of specified goods had already been imported by appellant. [P. 835] A & C
(iv) Civil Procedure Code, 1908 (V of 1908)--
----S. 20--Jurisdiction of Court--Import of goods--Letter of credit was established in Pakistan--Parties by mutual consent can neither confer jurisdiction upon a Court nor can take away the same, if so vested--Court in whose jurisdiction cause of action has arisen, has jurisdiction to entertain suit, irrespective of residence of defendant--Plaintiffs suit was thus, rightly entertained and tried by Court below and order in question, being barred on valid grounds was maintained. [P. 836] E
PLD 1972 Karachi 226; AIR 1995 SC 2375; AIR 1925 Rangoon 275; PLD 1980 SC 588; 1994 CLC 726; PLD 2001 Karachi 30; PLD 2002 Karachi 359; 1978 SCMR 3271; PLD 1970 SC 139; PLD 1981 SC 137; 2000 YLR 2700; 1998 SCMR 68; 2002 SCMR 307; 2004 MLD 662; 1997 CLC 1441 and2000 CLC 1405 ref.
Mian Sultan Tanvir Ahmad, Advocate for Appellant.
Sardar Ali, Entomologist, Department of Plant Protection, Lahore representative for Respondent No. 1.
Mian Irfan Akram, Advocate for Respondent No. 2.
Date of hearing : 2.8.2005.
Order
This single order will dispose of F.A.O. No. 169/2005 titled "Pak. China Chemicals versus Department of Plant Protection etc" and F.A.O. No. 184-2005 titled" Habei Vian Bio Chemical Co. Ltd. versus Pak China Chemicals Ltd. and another" as both these appeals have been preferred against the same order. The appellant in F.A.O. No. 169 shall hereinafter be referred to as the appellant. whereas Respondent No. 1 in F.A.O. No. 169-2005 shall be hereinafter be referred to Respondent No. 1 and appellant in F.A.O. No. 184-2005, who is Respondent No. 2 in F.A.O. No. 169-2005 shall hereinafter be referred to Respondent No. 2, for the purposes of disposal of these appeals.
Briefly stated facts of the case for the purpose of decision of these appeals are that appellant deals in various pesticides. It agreed to import Emamectin Benzoate in Pakistan and sell the same being sole agent of Respondent No. 2, with its brand name "Timer'. Respondent No. 2, subject to issuance of license by Respondent No. 1, exports its chemical products/pesticides from China to Pakistan. The appellant and Respondent No. 2 entered into an agreement wherein as per it's clause 7, the exclusive rights were conferred upon the appellant to sell the product of Respondent No. 2 in Pakistan, being its sole agent. It was further agreed that Respondent No. 2 shall not sell its product, in any shape, to any other importer in Pakistan and the NOC for the registration of another importer regarding the registration before Respondent No. 1, was agreed to be withdrawn. Agreement is admitted by both the parties, which is for a period till June, 2005. The registration certificate issued by Respondent No. 1 has also expired on 30.6.2005. Respondent No. 2 after signing the agreement as per agreed terms, issued letter to Respondent No. 1 directing therein the Respondent No. 1 to stop and cancel the registration process of the other applicants who intended to import Emamectin Benzoate through Respondent No. 2, Respondent No. 1 subsequently started the process of registration of other importers for the supply of Emamectin Benzoate, which gave cause to the appellant to file a suit for specific performance and permanent injunction on 31.5.2005. Respondent No. 2 contested the suit, controverted the assertions made in the plaint and raised various preliminary objections, including the objection as to the jurisdiction of the Court.
The plaintiff alongwith the suit filed an application under Order XXXIX Rules 1 and 2 CPC for the grant of temporary injunction. Learned trial Court vide order dated 1.6.2005 granted the appellant interim injunction, restraining Respondent No. 1 from issuing registration certificate to any other importer. The application was subsequently dismissed vide order dated 16.6.2005. The Respondent No. 2 filed an application under Section 34 of the Arbitration Act and took serious exceptions as to the jurisdiction of the Court. Learned trial Court while passing the impugned order dismissed the application of Respondent No. 2 moved under Section 34 of the Arbitration Act and also assumed the jurisdiction while placing reliance on Section 20-C of CPC and dictum of law laid down in PLD 2003 Karachi 382. Learned Court, refused the relief of temporary injunction to the appellant considering Clause 7 of the agreement oppose to public policy as contemplated in Section 23 of the Contract Act, 1872. The appellant has challenged in appeal the dismissal of his application while Respondent No. 2 has impugned the conclusion of the Court qua the assumption of jurisdiction and dismissal of application moved under Section 34 of the Arbitration Act.
Learned counsel for the appellant has contended that the learned trial Court declined the relief of injunction solely on the ground that the agreement under reference, specially it's Clause (7) is against the public policy and that the contract is void under Section 23 of the Contract Act. He added that the question whether a contract or its performance is against public policy, is a mixed question of law and fact and is required to be decided by allowing the parties to lead evidence after the issue is framed. He in support of his arguments referred to "Sultan Textile Mills Ltd. versus Muhammad Yousaf Shami" (PLD 1972 Karachi 226). Case of "M/s Gujrat Bottling Company Limited versus Coca Cola Ltd" (AIR 1995 SC 2375) was relied upon to contend that the agreements granting sole distribution rights in present commercial world contain the restrictive clause and exclusive right is a normal condition which cannot be termed as an agreement in restraint of trade for the purpose of Section 27 of the Contract Act. Such a condition restricting the right of the franchisee to deal with competing goods is for facilitating the distribution of the goods of the franchiser and it cannot be regarded as restraint of trade. Learned counsel while placing reliance on the case of "Mung Sein Htin Versus Cher Pan Ngaw" (AIR 1925 Rangoon 275) has contend that it was for Respondent No. 1 to prove how the contract was against the public policy. It was next contended by the learned counsel for the appellant that the appellant was the sole agent and agency cannot be revoked or terminated unless a notice is issued and provisions of Section 202 of the Contract Act are complied with. He in support of his contention referred to the case of "Muhammad Aref Efendi versus Egypt Air" (PLD 1980 SC 588). He has referred to the case of "M/s Universal Trading Corpn (Pvt.) Ltd. versus M/s Beechan Group PLC and another" (1994 CLC 726) to contend that the appellant is entitled to the grant of temporary injunction if the terms of agreement were breached and agency agreement was terminated, without any lawful justification. He lastly contended that the appellant has a prima facie case and while referring to "Pakistan Shaheen Containers Service versus Trustees of Post of Karachi" (PLD 2001 Karachi 30) and "Liaqat National Hospital Association Versus Province of Sindh" (PLD 2002 Karachi 359), has submitted that Government functionaries are expected to act fairly and justly and breach of contract calls for interference by Court, entitles the appellant for the relief of temporary injunction.
Learned counsel for Respondent No. 1, on the other hand, has referred to Article 129(e) of the Qanoon-e-Shahadat Order, 1984 to contend that presumption of trust is attached to official acts and to rebut such presumption the appellant was required under law to prove mala fide with definite proof. He then contended that the issuance of license by Respondent No. 1 is privilege and not a right. Adds that the appellant has not right to interfere in the issuance of license to other importers, and in this respect relied upon the case of "Zamir Ahmad Khan versus Government of Pakistan" (1978 SCMR 327). He has then referred to Section 56(d) of Specific Relief Act (Act I of 1887) and contended that the injunction against the Government functionaries is barred. Learned counsel referred to the cases of "Shahzada Muhammad Umar Baig versus Sultan Mehmood Khan" (PLD 1970 SC 139) and (PLD 1981 SC 137) to contend that injunctive order cannot be issued as a matter of course. He has lastly contended that the interim relief in the form of ultimate relief, cannot be granted and in support of his contention placed reliance on "Sheikh Irshad Ahmad versus English Leasing Ltd" (2004 YLR 2700) and "United Bank Ltd. versus Ahmad Akhtar" (1998 SCMR 68). He concluded his arguments with the submission that the time for which the contract was arrived at between the parties has since elapsed, therefore, the interim relief cannot be granted to the appellant.
Learned counsel for Respondent No. 2 has supported the impugned order and stated that the agreement for sale of pesticide (Emamectin Benzoate) is subject to a valid license from Respondent No. 1. The license of the appellant has since elapsed and was not renewed, therefore, the appellant cannot import Emamectin Benzoate without a valid license. He has then contended that Emamectin Benzoate is an important pesticide for pests' control in cotton crop and a monopoly in this respect will adversely affect the rights and interest of agriculture in the country. The restraint clause in the agreement results in discouraging healthy competition between the importers and as such it is against the public policy. He argued vehemently that the agreement between the appellant and Respondent No. 2 is for a specific time and for a specific quantity of Chemical for which the letter of credit has already been established and the quantity of chemical, for which the agreement was arrived at, has already been supplied. The agreement has elapsed on 30.6.2005 and no part of agreement remains capable of being performed. He in support of this contention has placed reliance on the case of "Muhammad Ashiq versus Government of Sindh" (2002 SCMR 307). He has further argued that the Courts in Pakistan have no jurisdiction as the parties have agreed for arbitration by an arbitrator outside China and Pakistan, which shows that the suit can be tried by a Court situated in a country other than these two countries. He in support of his contention has relied upon "Mahtab Ahmad versus Meer Shakeel-ur-Rehman" (2004 MLD 662), "M/s EFU General Insurance versus Faheem-ul-Haq" (1997 CLC 1441). Learned counsel has stated that the learned trial Court has erroneously assumed the jurisdiction. The learned trial Court has no jurisdiction to entertain the suit.
Heard learned counsel for the parties at length and examined the record.
There is no cavil with the proposition that a sole distribution/agent is appointed to deal with the goods of principal and in such agreement a condition is imposed on principal not to sell the goods through other agents and at the same time, on the agent not to deal with competing goods. When such condition is not wholly one sided and when it operates during the currency of the period of contract, it cannot be regarded as one in restraint of trade. Global trade, in growing business, is mostly based on Franchise Agreements and sole distribution agreements. Incorporation of a restraint clause in such agreement cannot be said to be hit by doctrine of restraint of trade, provided it is reasonable, on equal bargaining strength, is not unilateral and operates during the currency of the agreement.
The original agreement dated 20.4.2005 is an agreement whereby the appellant was appointed as sole agent of Respondent No. 2. Perusal of the agreement reveals that the agreement was for sale of specific quantity of chemical and was for a specific period i.e. uptill June, 2005. The appellant was entitled to sell the product of Respondent No. 2 being sole agent in the country, to the exclusion of other persons/importers, within the period of validity of the agreement. The appellant after the lapse of the period of the agreement has no right to claim the privilege of sole agent. The agency stood terminated after the prescribed period.
There is no cavil with the proposition that once a person is appointed as a sole agent he has the right to act in that capacity to the exclusion of other persons. The agency can only be terminated either by serving upon the other party a notice or as per express stipulation of the contract. Section 201 of the Contract Act, 1872 is reproduced for ready reference:--
"An agency is terminated by the principal revoking his authority; or by the agent renouncing the business of the agency; or by either the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors."
The agreement between the appellant and Respondent No. 2 was for a fixed term, the expiration of the term has put an end to the agency. Additionally the parties entered into an agreement for a specific quantity of Emamectin Benzoate, which quantity has already been imported by the appellant. Thus the business of the agency being accomplished terminates the agency between the appellant and Respondent No. 2. The appellant in these circumstances has failed to establish a prima facie case in this favour.
Respondent No. 2 in its Appeal No. 184 has stressed that the proceedings in the suit are liable to be stayed and the matter has to be referred to the arbitration. This objection has lost its force as Respondent No. 2 has itself participated in the proceedings and has filed the written statement.
Now I will revert back to the question of jurisdiction. The agreement between the appellant and Respondent No. 2 was arrived at in Pakistan. The import of Emamectin Benzoate is governed under the provisions of Agricultural Pesticides Ordinance, 1971 (II of 1971). The letter of credit was established in Pakistan. The arguments of learned counsel for Respondent No. 2 that the parties have since agreed for arbitration outside Pakistan and China, therefore, Courts in Pakistan have no jurisdiction, have no force. The parties, by mutual consent, can neither confer jurisdiction upon a Court nor can take away the same, if so vested. The Court in whose jurisdiction the cause of action has arisen, has the jurisdiction to entertain the suit, irrespective of the residence of the defendant. This question has already been settled in the case of "T. Zubair Ltd. versus Judge Banking Court Lahore" (2000 CLC 1405). Learned trial Court has rightly decided the question of jurisdiction.
For the foregoing reasons both these appeals are dismissed and the impugned order, wherein the temporary injunction was declined to the appellant is upheld, without any order as to costs.
(Aziz Ahmad Tarar) Appeal dismissed.
PLJ 2006 Lahore 836 (DB)
Present: Syed Hamid Ali Shah & Syed Sakhi Hussain Bokhari, JJ.
MUHAMMAD ASHIQ--Appellant
versus
RANA TARIQ MAHMOOD--Respondent
R.F.A. No. 123 of 2005, decided on 23.2.2006.
Stamp Act, 1899 (II of 1899)--
----Ss. 36 & 61--Admission of document insufficiently stamped--Legality--Promissory note admitted in evidence without objection--Once such document has been admitted in evidence, the same could not be called in question subsequently on ground that such document was not duly stamped--Such document, however, can be called in question under S. 61, Stamp Act, 1899--Insufficiently document can legally be considered and read in evidence--Trial Court has legally decreed suit on basis of promissory note in question--There being no infirmity or illegality in impugned judgment and decree, appeal against the same was devoid of merit and dismissed. [Pp. 838 & 839] A, B & C
AIR 1916 Cal. 888; 2000 CLC 759; AIR 1958 Raj. 183; AIR 1934 Lahore 606; AIR 1939 Lahore 31; PLD 1963 Karachi 905; PLD 2004 Lahore 95; PLD 2003 Lahore 173; 1993 CLC 2105; PLD 2004 Lahore 95; PLD 1994 Karachi 492; 1995 CLC 1914 and AIR 1996 Cal. 888 ref.
Mr. S. M. Masud, Advocate for Appellant.
Mr. Muhammad Shahid Rana, Advocate for Respondent.
Date of hearing : 20.12.2005.
Order
Syed Hamid Ali Shah, J.--The suit of respondent, on the basis of promissory note dated 28.3.1996 for an amount of Rs. 4,00,000/-, was decreed against the appellant vide judgment and decree dated 25.2.2005. Appellant through instant appeal has called inquestion the decree dated 25.2.2005.
Learned counsel for the appellant has submitted that the promissory note (Exh. P-1), is signed by Muhammad Akram son of Chiragh Muhammad as witness. A promissory note, which is signed by a witness ceases to be a promissory note. Summary proceedings on the basis of such document under Order XXXVII CPC are not competent. Learned counsel in support of this contention has placed reliance on the case of "Keshari Chand Surana and others versus Asharam Mahato" (AIR 1916 Cal. 888) and "Malik Muhammad Akram versus Khuda Bakhsh" (2000 CLC 759). He argued further that promissory note is insufficiently stamped, stamps of the value of Rs. 60/- (Sixty rupees) were to be affixed but the promissory note is stamped to the tune of Rs. 52/- (fifty two rupees). The document is inadmissible in evidence. Case of "Ramdeo versus Gulabchand" (AIR 1958 Rajastan 183) was referred in this respect. The Court has decreed the suit on the basis of insufficiently stamped document, which is inadmissible in evidence. A document bearing deficient stamp duty can neither be legally admitted in evidence nor used to corroborate oral evidence. Learned counsel in support of this contention has referred to the cases of "Sohanlal Nihal Chan versus Ranghu Nath Singh" (AIR 1934 Lahore 606), "Firm Sri Chan Sheo Parshad versus Lajja Ram" (AIR 1939 Lahore 31) and "K.M. Munner versus Mirza Rasheed Ahmad" (PLD 1963 Karachi 905).
Learned counsel for the respondent on the other hand has contended that insufficiency of stamp, do not render the document as void or inadmissible. At the most, a direction to make the deficiency can be given. In the instant case the deficiency was of meager amount of Rs. 8/- (eight rupees) only. Learned counsel has argued further that the promissory note according to the provisions of Sections 33 and 35 is valid document and the decree was rightly passed. It was lastly contended that once a document is admitted in evidence and duly exhibited then the objection to its inadmissibility is of no avail at a later stage. Case of "Muhammad Ashiq and another versus Niaz Ahmad and another" (PLD 2004 Lahore 95) was referred in support of this contention. Learned counsel has then argued that document once admitted in evidence, even if not admissible by virtue of Section 35 of the Stamp Act could not be challenged at subsequent stage of the same suit. The document which is admitted in evidence cannot be called in question at any stage of the suit or proceedings on the ground that it was not sufficiently stamped except under Section 61 of the Stamp Act, 1899. Learned counsel in support of his contentions has referred to the cases of "Munir Ahmad Kahloon versus Rana Muhammad Yousaf" (PLD 2003 Lahore 173), "Farid Akhtar Hadi versus Muhammad Latif Ghazi" (1993 CLC 2105) and "Muhammad Ashiq and another versus Niaz Ahmad and another" (PLD 2004 Lahore 95). It was lastly argued by the learned counsel for the respondent that the document in question, is a promissory note for, provisions of Negotiable Instruments Act, the attestation of such document by witnesses, does not change its nature.
Heard learned counsel for the parties and perused the record.
It is an admitted that during the course of recording of evidence the promissory note was admitted in evidence as Ex.P-1, without any objection. Once such document is admitted in evidence, the same could not be called in question subsequently on the ground that it was not duly stamped. The only course available to call in question the document, which has been admitted in evidence is to challenge the same under Section 61 of the Stamp Act, 1899. If any case law is needed reference can be made to Muhammad Luqman's case (PLD 1994 Karachi 492), "M/s Rasheed Ullah versus Punjab Province and others" (1995 CLC 1914) and "Muhammad Ashiq and another versus Niaz Ahmad and another" (PLD 2004 Lahore 95). It is reflected from the provisions of Section 36 of the Stamp Act that a document even if deficiently stamp can be admitted in evidence. Learned counsel for the appellant has failed to challenge the impugned promissory note under the provisions of Section 61 of the Stamp Act and as such cannot be called in question at this stage. Promissory note as defined in Section 4 of the Negotiable Instruments Act 1881 is required under law to be an instrument in writing wherein there is :--
(i) Unconditional undertaking to pay.
(ii) Sum must be a sum of money and certain.
(iii) The payment is to the order of a person who is certain or the bearer of instrument, and
(iv) The maker has signed it.
If these conditions are present in a document it becomes a promissory note. The mere signing of such document by a witness does not change the nature of the document. Any document or instrument which contains the aforementioned conditions, is a promissory note. The provisions of Negotiable Instruments Act, 1881 nowhere stipulate that if an instrument is signed by witnesses becomes void or loses its significance as a negotiable instrument. The judgments referred to by the learned counsel for the petitioner AIR 1996 Calcutta 888 (supra) is not relevant in the instant case firstly for the reason that the instrument subject-matter of the said judgment was a "Hundi" and not a promissory note and secondly the provisions of Article 17(2) of the Qanoon-e-Shahadat Order, 1984 provide for attestation of a document by two witnesses.
Although the promissory note Ex. P-1, is not sufficiently stamped, since it has been admitted in evidence during the course of recording the evidence, without any objection therefore cannot be called in question subsequently. Such document can legally be considered and read in evidence. Learned trial Court has rightly decreed the suit on the basis of Ex.P-1. We do not see any infirmity in this respect. Negotiable instrument which is once admitted in evidence, is subject to challenge only, under the provisions of Section 61 of Stamp Act, 1899 and not otherwise.
For the foregoing, we do not see any merit in the instant appeal, do not see any justification to unsettle the judgment which has been passed on sound legal basis. There is no infirmity or illegality in the impugned judgment and decree. The appeal is accordingly dismissed with no order as to costs.
(Aziz Ahmad Tarar) Appeal dismissed.
PLJ 2006 Lahore 839 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
Mst. GHULSHAN PARVEEN--Petitioner
versus
MUHAMMAD TAYYAB--Respondent
C.R. No. 651 of 2005, heard on 16.11.2005.
Suits Valuation Act, 1887 (VII of 1887)--
----S. 11--Civil Procedure Code (V of 1908), S. 115--Jurisdiction--No objection was taken to jurisdiction of Civil Judge concerned--Suit in question, was initially filed in Court of Senior Civil Judge and the same was entrusted to Civil Judge 1st Class--Written statement was also filed in Court of Civil Judge 1st Class--No objection could have been raised in written statement as the case was pending in Court having jurisdiction--Subsequently case was entrusted to Civil Judge III Class in routine who decided the same--No objection as to lack of jurisdiction was raised either in first appeal or in revision before High Court--No objection was raised to jurisdiction of Civil Judge III Class who decided that suit--Provision of S. 11, Suits Valuation Act postulates that objection when not taken before trial Court the same cannot be taken before Appellate Court--No finding has been recorded by Court of first appeal that there has been failure of justice on merits of case because of such defect--Impugned appellate order whereby case was remanded on the ground that Civil Judge-III, Class had no jurisdiction to decide the same was wholly without lawful authority and cannot be sustained as no objection to jurisdiction had been raised either before trial Court or in appeal--Order in question, was set aside and appeal would be deemed to be pending before concerned District Judge who would decide the same himself or entrust the same to Additional District Judge for decision afresh on its merits within specified period. [Pp. 841 & 842] A & B
Rana Meraj Khalid, Advocate for Petitioner.
Mr. Tariq Muhammad Iqbal, Advocate for Respondent.
Date of hearing : 16.11.2005.
Judgment
On 6.12.1999 the petitioner filed a suit against the respondent. For the order, I propose to pass in this case, I will not be referring to the pleaded facts in much detail. Suffice it to say that the suit was for declaration that the registered gift-deeds, mentioned in the plaint, and the mutations attested thereon are illegal and void. Possession was also sought. In para 7 of the plaint it was stated that the value of the suit for purposes of Court fee and jurisdiction is fixed at Rs. 400/-. On 11.5.2000 the respondent filed a written-statement, inter alia, it was objected that proper Court fee has not been paid on the plaint. Issues including the following Issue No. 5 were framed on 27.9.2000:--
"5. Whether the suit has been improperly valued for the purposes of Court fee and jurisdiction, if no then what is the exact valuation of the suit for this purposes? OPD."
Evidence of the parties was recorded. Vide judgment and decree dated 8.2.2003 a learned Civil Judge-III Class, Sahiwal proceeded to decree the suit. I may note here that under the said Issue No. 5 it was held that the plaintiff has admitted that the value of the suit property is Rs. 6/7 lacs, as such, no Court fee has not been paid. In para 6 of the judgment he directed the plaintiff to pay the Court fee within 30 days. Against this judgment and decree a first appeal was filed on 10.4.2003. This appeal was dismissed by a learned Additional District Judge, Sahiwal on 13.4.2004. The respondent filed R.S.A. No. 64/2004 in this Court. It was allowed on 3.11.2004 and the case was remanded back to the learned Court of appeal for afresh decision. Vide judgment and decree dated 9.3.2005 learned Additional District Judge, Sahiwal proceeded to allow the appeal and to set side the judgment and decree of the learned trial Court on the ground that he being a Civil Judge-III Class had no pecuniary jurisdiction to try and decide the suit the value whereof was Rs. 6/7 lacs. The case was referred to the learned Additional District Judge, Sahiwal for entrustment to a learned Civil Judge Ist Class, Sahiwal for afresh decision.
Learned counsel for the petitioner contends with reference to Section 11 of the Suits Valuation Act, 1887 that the learned appellate Court had no lawful authority to set aside the judgment and decree of the learned trial Court on the said ground. The precise contention is that no objection was taken to the jurisdiction of the learned Civil Judge-III Class in the manner prescribed.
Learned counsel for the respondent supports the impugned order with the contention that an objection as to valuation was taken in the written-statement.
I have gone through the copies of the available records. Now, the suit was initially filed in the Court of learned Senior Civil Judge, Sahiwal and as per endorsement on the same was entrusted to a learned Civil Judge Ist Class. The written-statement also shows that it was filed in the Court of learned Civil Judge Ist Class.
Now, there is no objection, and it could not have been there in the written-statement, to the pecuniary jurisdiction of the Court as it was filed in a Court of learned Civil Judge Ist Class. It appears that the case was entrusted to a learned Civil Judge-III Class in routine. Be that as it may, neither in the first appeal nor in the said second appeal. I find any objection taken to the pecuniary jurisdiction of the learned trial Court. Of course, no objection was taken to the jurisdiction of the learned Civil Judge-III till such time that the suit was decided.
Now, Section 11 of the Suits Valuation Act, 1887 provides for entertainment of an objection by a party to the pecuniary jurisdiction of a Court in an appeal. Now, it provides in clear terms that such an objection shall not be entertained by an Appellate Court unless the objection was taken in the Court of first instance at or before the hearing at which issues first framed and recorded or that the Appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit was over-valued or under-value, and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit on its merits. Sub-section (2) further clarifies that even if the objection was taken in the manner prescribed in Section 11 (1)(a) yet it the appellate Court is not satisfied of the said conditions it shall dispose of the appeal as is there is no defect of jurisdiction in the Court of first instance.
Now, examining the present case in the light of the said statutory provisions. In the first instance no objection was taken at any stage in the trial Court to the jurisdiction of the learned Civil Judge-III Class and in the second there is no finding recorded by the Court of first appeal that there has been a failure of justice on merits of the case because of the said defect. This being so, the impugned order is wholly without lawful authority and cannot be sustained. The C.R. is allowed. The impugned order dated 9.3.2005 of the learned Additional District Judge, Sahiwal is set aside. The result would be that the first appeal filed by the petitioner shall be deemed to be pending before the learned District Judge, Sahiwal in whose Court the parties shall appear on 21.12.2005. The learned District Judge shall requisition the records and proceed to decide the appeal either himself or entrust it to a learned Additional District Judge, who shall decide the first appeal on its own merits preferably within three months of the said date.
A copy of this judgment be immediately remitted to the learned District Judge, Sahiwal.
(Aziz Ahmad Tarar) Case remanded.
PLJ 2006 Lahore 842 (DB)
Present: Muhammad Sair Ali & Muhammad Khalid Alvi, JJ.
M/s. AJWA CENTRE, 17 COOPER ROAD, LAHORE--Appellant
versus
COMMISSIONER OF INCOME/WEALTH TAX, LAHORE--Respondent
W.T.A. No. 59 of 2004, decided on 8.12.2005.
Wealth Tax Act, 1963 (XV of 1963)--
----Ss. 2(5)(ii) & 27--Gift of property in favour of 7 persons who entered into agreement to undertake joint venture with all rights and liabilities and charges and to erect and raise plaza thereon--Assessing officer's assessment for relevant year at net wealth of specified amount was maintained and upheld by Income Tax hierarchy upto the level of Income Tax Appellate Tribunal--Legality--Joint ventures themselves agreed to acquire property for specified purposes much before valuation date and got the site-plan sanctioned from L.D.A. even before executing deed of joint venture on specified date--Mere by giving effect to dead from specified date would not nullify object of the deed whereunder they had agreed to acquire rights liabilities and charges etc. with effect from the date of execution of title deed i.e. 24.1.1998--Question as to whether a group of persons is or is not an "Associate of Persons" within meaning of S. 2(5)(ii) of Wealth Tax Act 1963, is pure question of fact to be determined keeping in view all attending circumstances--Appellants admittedly being "Association Persons", course adopted by income hierarchy was in accordance with law--Where law provides to do a particular thing in a particular manner then all other modes are necessarily forbidden--Questions raised by appellants were thus, answered in the negative. [Pp. 846 & 847] A & B
Mr. Shahbaz Butt, Advocate for Appellant.
Mr. Sajjad Ahmad Jafferi, Advocate for Respondent.
Date of hearing : 29.11.2005.
Judgment
Muhammad Khalid Alvi, J.--Brief facts of the case are that Property No. SE-34-4178, a residential house measuring 38 Marlas 95 sq. ft. situated at Cooper Road, Lahore was owned by Mr. Sajid Saleem. He gifted this property through his general attorney in favour of 7 persons through registered gift-deeds dated 24.1.1998. The said 7 persons entered into an agreement to undertake a joint venture with inter alia objectives of acquiring the said property "with all its rights and liabilities" and charges thereon from the date of execution of the title deeds i.e. 24.1.1998 and to erect and raise a plaza namely "Ajwa Centre". The site-plan for the construction of the plaza was submitted and approval thereto obtain from LDA by the said persons on 7.9.1998 i.e. before the agreement of joint venture dated 17.12.1998 was even written and executed.
(a) Whether on the facts and in the circumstances of the case, the Learned ITAT ignored/ministerpreted the provisions of clause (ii) of sub-section (5) of Section 2 of the Wealth Tax Act, 1963?
(b) Whether on the facts and in the circumstances of the case, the Learned ITAT wrongly confirmed the orders of authorities below regarding status of appellant as an AOP?
(c) Whether on the facts and in the circumstances of the case, the learned ITAT fell in grave error while holding that AOP existed in the assessment year 1998-99?
(d) Whether the act of Learned ITAT assigning the status of an AOP to the Appellant was beyond jurisdiction as in the same is contrary to the provisions of Sections 2(5)(ii) and 2(16) of the Wealth Tax Act 1963?
It is contended by the learned counsel for the appellant that according to Clause 19 of the deed of joint venture it had to take effect from 1.7.1998, therefore, no AOP existed on the valuation date i.e. 30.6.1998.
It is next argued that since no AOP existed on the valuation date therefore provisions of Section 2(5)(ii) of the Wealth Tax Act, 1963 were not attracted. It is further added with reference to Section 3, the charging Section, that Wealth Tax could only be recovered against the net Wealth or assets. Since the property in question was not in the hands of AOP on the relevant date, it did not qualify to attract the provisions of Section 2 (5)(ii) of the Wealth Tax Act, 1963.
It is lastly argued that as no AOP was in existence on the valuation date, therefore, the property in question was not an asset of the AOP, thus the same could not also qualify to be the net Wealth as defined in Section 2(16) of the Wealth Tax Act.
On the other hand, learned counsel for the Revenue argued that 7 persons who acquired this property through gift deeds from its original owner Mr. Sajid Saleem, had neither any relationship with the original owner to provide the rationale for the gift of such a valuable property nor were they inter-related. The reason of having joined hands for acquiring this property on 24.1.1998, was nothing but to run a joint business of construction and letting out or sale etc., therefore, for all practical purposes it was an AOP within the meaning of Section 2 (5)(ii) of the ibid Act.
We have considered the arguments of the learned counsel for the parties.
Before embarking upon discussion on the merits of the case it would be advantageous to reproduce the relevant provisions of the Wealth Tax Act 1863:--
Definitions.-- (1)--------------------------
(2)--------------------------
(3)--------------------------
(4)--------------------------
(5) "assets" includes--
(i) in the case of an individual and a Hindu undivided family, property of every description movable or immovable, except--
(a) growing crops, grass or standing trees on agricultural land; and
(b) any building owned or occupied by a cultivator or received of rent or revenue out of agricultural land:
Provided that the building is on or in the immediate vicinity of the land and is a building which the cultivator or the receiver of rent or revenue by reason of his connection with The land requires as a store house or an outhouse; and
(ii) in the case of a firm, an association of persons or a body of individuals, whether incorporated or not, and a company, immovable property held for the purpose of the business of construction and sale, or letting out, of property;
The following amendment was introduced through Finance Act, 1991 after the judgment of the Hon'ble Supreme Court dated 19.1.1989 in Civil Appeal No. K-140 of 1981:
Explanation:--For removal of doubt, it is hereby declared that immovable property and the purpose, referred to in his sub-clause, includes--
(i) immovable property held for the purpose of letting out, or business of letting out, of property;
(ii) immovable property held for the purpose of construction and letting out of property; and
(iii) immovable property held for the purpose of construction and sale of property.
(16) Net wealth" means the amount of which the aggregate value computed in accordance with the provisions of this Act of all the assets, whenever located, belonging to the assessee on the valuation date, including assets required to be included to his net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than--
Charge of wealth-tax.--Subject to the other provisions contained in this Act, there shall be charged for every financial year commencing on and from the first day of July, 1963; a tax (hereinafter referred to as wealth-tax) in respect of the net wealth or assets on the corresponding valuation date of every individual, Hindu undivided family, from association of persons or body of individuals, whether incorporated or not, and company at the rate or rates specified in the Schedule.
Clause (i) of sub-section (5) of Section 2 deals with the moveable and immovable property of the individuals and Hindu undivided family and includes property of every description with certain exceptions while clause (ii) of the same sub-section deals only with immovable property held by AOP and others. This clause however prescribes that mere holding of an immovable property by an AOP is not sufficient to qualify it as an asset. Holding of the such property should be with the purpose of the business of construction and sale, or letting out of the property. If it is proved from the attending circumstances that a property is held by an AOP with the said purposes it undoubtedly becomes an asset of the AOP chargeable to tax under Section 3.
To determine this question as to whether appellant was or was not an AOP holding taxable immovable property on the valuation date, two paras of the deed of joint venture executed on 17.12.1998 are relevant and are reproduced for ready reference i.e. para 4 and 19:--
"4. That the objectives of this joint venture shall be to acquire the Property No. SE-34-R-17/B i.e. 17-Cooper Road, Lahore with all it rights and liabilities and charges thereon as on the date of execution of title deeds viz 24th January, 1998 and to erect and raise a plaza named "AJWA CENTRE" and to alter, onlarge, improved, manage, renovate, erect and construct into shops, show rooms, offices, workshops, flats and godowns etc. for the purposes of out right sale, mortgage or letting out and as the circumstances may permit from time to time.
That this deed shall take effect as from 1.7.1998"
Para 4 clearly indicates that seven persons formed themselves into an AOP as a joint venture with the object to acquire this property to construct the plaza comprising shops, show rooms, offices, workshops and godowns etc. for the purposes of sale, mortgage or letting out alongwith all rights, liabilities and charges thereon w.e.f. the date of the execution of the title deed i.e. 24.1.1998. Meaning thereby that as the joint ventures themselves agreed to acquire the property for the specific purposes much before the valuation date. To achieve this objection/purpose they got the site-plan sanctioned from LDA on 7.9.1998 i.e. even before executing the deed of joint venture on 17.12.1998. Under clause 19, merely giving effect to the deed from 1.7.1998 would not nullify the effect of the earlier para 4 of the deed where under they had agreed to acquire rights, liabilities and charges etc. w.e.f. 24.1.1998 with the specific objects.
Even otherwise the question as to whether a group of persons is or is not an AOP within the meaning of Section 2(5)(ii) of the Wealth Tax Act, 1963 is a pure question of fact to be determined keeping in view all the attending circumstances. Had it not been the admitted position as in the instant case, the case could have been examined from a different angle i.e. whether the Tribunal had or had not attended to all the circumstances to formulate an opinion regarding the appellant being an AOP within the meanings of Section 2(5)(ii) of the Wealth Tax Act, 1963. Of course, where the law provides to do a particular thing in a particular manner then all other modes are necessarily forbidden.
For what has been discussed above, the questions raised in this appeal are answered in the negative. Resultantly the appeal fails and is accordingly dismissed.
(Aziz Ahmad Tarar) Appeal dismissed.
PLJ 2006 Lahore 847
Present: Sayed Zahid Hussain, J.
IDREES TEXTILE MILLS LTD. through its MANAGER--Petitioner
versus
WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA) through its CHAIRMAN WAPDA HOUSE, LAHORE and 4 others--Respondents
W.P. No. 2093 of 2004, heard on 24.4.2006.
Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (XL of 1997)--
----S. 22--Constitution of Pakistan (1973), Art. 199--Respondent's refusal to reduce sanctioned load of electricity assailed--Judgment of High Court reported as PLJ 2002 Lahore 1467 as confirmed by Supreme Court, would indicate that insistence of respondents to charge petitioner on basis of originally sanctioned load was deemed to be neither fair nor equitable--Judgment of High Court (PLJ 2002 Lahore 1467) had even been accepted by WAPDA, subject only to commencement date of implementation of policy framed by WAPDA--Affirmation of judgment inquestion by Supreme Court would bind parties as WAPDA was party to such judgment--Such is the rationale and objective of Arts. 189 and 190 of the Constitution--Petitioners who have similar grievance are entitled to be governed by judgment of Lahore High Court PLJ 2002 Lahore 1467 as affirmed by Supreme Court in like manner--Respondent's were directed to act in line and accordance with judgment of Supreme Court dated 18.4.2005 in C.P. No. 2626-L/02 whereby judgment of High Court PLJ 2002 Lahore 1467 was affirmed. [Pp. 850 & 851] A & B
PLJ 2002 Lahore 1467; PLD 2001 Karachi 344; 1995 CLC 569 ref.
Mr. Navid Ashiq Alvi, Advocate for Petitioner.
Mr. Muhammad Ilyas Khan, Advocate for Respondents.
Mr. Anwar Kamal, Advocate for Respondents in W.P. No. 6110/05.
Date of hearing : 24.4.2006.
Judgment
The petitioners in this case and in the connected petitions i.e. W.P. No. 4305/04, W.P. No. 4306/04, W.P. No. 4307/04, W.P. No. 8018/04, W.P. No. 681/05, W.P. No. 1998/05 and W.P. No. 6110/05 have almost identical grievance that their request for reduction of load has either not been attended to properly or rejection was illegal and unwarranted. A direction is, thus, sought to the respondents to reduce their sanctioned load.
The petitions are being contested. The learned counsel for the parties have been heard.
Whereas the learned counsel for the petitioner places reliance upon M/s Century Paper & Board Mills Ltd. v. WAPDA and another (PLJ 2002 Lahore 1467) as affirmed by the Hon'ble Supreme Court of Pakistan through judgment dated 18.4.2005 in C.P. No. 2626-L/02 and contends that even under the policy dated 2.2.2005 the petitioners are entitled to reduction of load; the learned counsel for the respondents have opposed the petitions by relying upon provisions of Section 22 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 [Act XL of 1997]. Mr. Anwar Kamal, Advocate has also referred to Standard Chartered Bank v. Karachi Electric Supply Corporation Ltd. through Managing Director (PLD 2001 Karachi 344) and the order of the Hon'ble Supreme Court of Pakistan dated 14.11.2001 whereby leave was granted by their lordships against the judgment of the Karachi High Court.
In the context of the grievance of the petitioners, reference to the judgment in the case of M/s Century Paper & Board Mills Ltd. (Supra) is eminently appropriate. It was observed by his lordship Karamat Nazir Bhandari, J. as he then was now a Judge of the apex Court of the Country that:--
"6. The reasons of the respondents that reduction in load cannot be allowed unless some machinery is physically removed does not seem to be fair. There was time when WADPA was short of electricity and particularly in summer season, it had to resort to long periods of load shedding, which resulted in suspension of work in factories and so on. If, in term of policy of the Government the petitioner installed its own power plant it does not seem fair and equitable on the part of the respondents to insist that it will charge the petitioner on the basis of originally sanctioned load. The argument against this view is that WAPDA will suffer loss as under the contract it has to purchase electricity from private power producers, but this argument is equally available to the petitioner. Should the petitioner be condemned to pay for some thing, which it never utilities and therefore, suffer loss. To my mind this argument does not help the respondents. The two judgments from Karachi jurisdiction relied upon by the learned counsel for the petitioner, may not be strictly relevant but the case reported as Messrs Ilyas Marine and Associated Ltd. vs. Karachi Electric Supply Corporation Ltd. (1995 CLC 596) does indicate that the licensee was not entitled to charge the consumer on the basis of sanctioned load of 150 KW, after the request of the consumer to reduce the load to 50 KW. The licensee was directed to refund the amount of fix charges for the period of two years that the licensee kept the request for reduction under consideration. In fact the consumer was granted the amount of interest on this amount.
For what has been stated above I accept this petition and declare the impugned decision dated 27th September 1997 as without lawful authority and consequently of no legal effect. Respondents are directed to accept the request for reduction of load w.e.f. 26.9.1997 the date of impugned decision and to adjust the account accordingly w.e.f. the said date. No order as to costs."
The matter was agitated by WAPDA before the Hon'ble Supreme Court of Pakistan which petition was dismissed by refusing leave on 18.4.2005 but Paragraph Nos. 4, 5 and 6 of the judgment of their lordships are quite instructive which are reproduced here:--
"4. On an earlier date of hearing the learned ASC for the petitioners had informed us that the question of reduction of load sanctioned for different consumers was under active consideration with the petitioners and some decision was likely to be made in the matter. The learned ASC has, today, placed before us a policy decision taken by the WAPDA in the said connection which is reproduced hereunder:--
The authority allowed reduction of load upto fifty percent of existing load but not less than the minimum threshold of 500 KW, whichever is higher, in respect of B-3 industries, who have either switched over to self generation or are in the process of setting up the plants, without the requirement to have higher capacity transformers replaced by lower capacity transformers and physical removal of motive load subject to the following conditions:--
(a) The requests for reduction of load by such consumers shall be submitted before June 30, 2005 in order to take effect from July 1, 2005. The applications for reduction of load, received after the start of the next financial year, would be considered for implementation with effect from next financial year.
(b) In case the maximum demand of such consumer, who have been allowed reduction of load, exceeds the reduced load, this maximum demand shall be the sanctioned load with effect from date of increase.
What transpires from perusal of the above quoted decision is that WAPDA has accepted the decision taken by the learned High Court through the impugned judgment with the only reservation that the WAPDA wishes this decision to take effect from 1st July, 2005 and is not agreeable to extend the said concession to the consumers who had requested for grant of the same during the periods of time prior to 1.7.2005. We have not been able to appreciate to fixation of the said point of time for the implementation of the said policy and no reasons are forthcoming as to why the earlier applications for the said favour should have been discriminated in the said matter.
Having thus examined to all aspects of the matter, we find that no exception could be taken the impugned judgment, which, as a matter of policy, has even been accepted by the WAPDA subject only to the commencement date of the implementation of the said policy from the WAPDA."
The policy decision of WAPDA circulated through letter dated 2.2.2005 which finds mention in the judgment of the Hon'ble Supreme Court of Pakistan is still in the field. The reasons which prevailed with the learned Judge of this Court in deciding the case of M/s Century Paper & Board Mills Ltd. and affirmance of the same by the Hon'ble Supreme Court of Pakistan are quite weighty, leaving no scope for departure therefrom. I respectfully follow the same. There cannot be any cavil or two opinions that a judgment of the Hon'ble Supreme Court of Pakistan binds the parties. The same is entitled to greatest respect and all are expected to honour and obey the same. Since WAPDA was party in the said judgment it binds it. Such is the rationale and objective of Articles 189 and 190 of the Constitution of Islamic Republic of Pakistan 1973. The petitioners who have similar grievance are entitled to be governed by the said judgment, in like manner.
It is stated by Mr. Muhammad Ilyas Khan, Advocate that review against the said judgment is pending before the Hon'ble Supreme Court of Pakistan. Suffice it to observe that mere filing or pendency of the review does not in any way impair that legal efficacy of the judgment unless reversed or reviewed. The respondents should honour and obey the judgment of the Hon'ble Supreme Court of Pakistan so long as to holds the field.
The contention as to the import and effect of provisions of Act XL of 1997 in particular Section 22 thereof cannot be countenanced in view of the peculiar position obtaining in these cases inasmuch that the Authority (WAPDA) itself has issued its policy decision dated 2.2.2005 notwithstanding the provisions of Act XL of 1997 which policy decision has also received recognition from the apex Court of the country as is referred to above. The reliance of the learned counsel for the respondents on the leave granting order in "Karachi Electric Supply Corporation Ltd. v. Standard Chartered Bank etc" is also inapt for the reason that the order does not show that there was any policy decision by Karachi Electric Supply Corporation Ltd. as was taken by WAPDA on 2.2.2005 and also for the reason that the judgment passed by the Hon'ble Supreme Court of Pakistan on 18.4.2005 in M/s Century Paper & Board Mills Ltd.'s case was later in time which still holds the field.
In view of the above, the petitions are accepted with the direction to the respondents to act in line and accordance with the judgment of the Hon'ble Supreme Court of Pakistan dated 18.4.2005 in the case of M/s Century Paper & Board Mills Ltd. No order as to costs.
(Aziz Ahmad Tarar) Petitions accepted.
PLJ 2006 Lahore 851
Present: Muhammad Muzammal Khan, J.
ABDUL MAJEED--Appellant
versus
MUHAMMAD NAEEM and 3 others--Respondents
F.A.O. No. 43 of 2005, decided on 20.4.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, R. 1--Specific Relief Act (I of 1877), S. 12--Suit specific performance of agreement to sell--Plaintiff's prayer restraining defendant from a alienating property inquestion was granted by trial Court--Legality--Claim of defendant regarding payment of specified amount without handing over of possession and without giving crucial period to plaintiffs as per terms of agreement of sell was not warranted and was opposed to terms settled between parties--Plaintiffs have made out prima facie/arguable case in their favour and they could not be further burden to pay another specified amount without giving them possession of property inquestion, contrary to agreement--Restraint on alienation of property inquestion would not result in any irreparable loss/injury to defendant while the same may occur to plaintiffs who would face further complications and multiplicity of proceedings--Balance of convenience also leans in favour of plaintiffs while defendant would not suffer any inconvenience in case of grant of injunction--Impugned order being lawful was maintained. [P. 853] A
Mr. Muhammad Kazim Khan, Advocate for Appellant.
Ch. Abdul Majeed, Advocate for Respondents.
Date of hearing : 20.4.2006.
Order
Instant appeal is directed against the order dated 28.1.2005 passed by the learned Civil Judge Faisalabad, whereby on application of the respondents under Order XXXIX Rules 1 and 2 CPC, appellant was restrained from alienating the suit property.
Succinctly, relevant facts are that Respondent filed a suit for possession through specific performance of an agreement to sell dated 22.12.2003 with the averments that the appellant failed to perform his part of contract and possession of the land was not handed over as per agreement, after receipt of huge earnest money. Respondents alongwith their plaint filed an application under Order XXXIX Rules 1 and 2 CPC praying restraint order against the appellant from alienating the suit property by any means whatsoever.
Appellant being defendant in the suit contested the same and opposed grant of temporary injunction by filing his written statement/reply, the learned Civil Judge seized of the matter, after hearing the parties confirmed the temporary injunction already granted by him vide order dated 28.1.2005 and framed issues arising out of controversial pleading of the parties and put them to trial. The appellant aggrieved of acceptance of stay application of the respondents filed instant appeal with the claim that he being owner, could not be restricted to alienate the same and that without requiring the respondents to deposit the agreed balance sale price, the injunction prayed could not have been issued. The respondents in response to notice by this Court appeared and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Appellant inspite of urging interpolation and incomplete nature of the agreement to sell dated 22.12.2003 admitted its execution and receipt of earnest money of Rs. 27,50,000/- in place of Rs. 50,000,000/-. Terms of the agreement on the basis of which the respondents have filed a suit for specific performance, were also not refuted by the appellant whereunder it was agreed that actual physical possession of the land has been handed over to the respondents and they will pay another amount of Rs. 1,00,00,000/- (One Crore Rupees) as per agreement. During the course of hearing, learned counsel for the appellant offered to deliver possession of the suit land forthwith, in case respondents pay the settled amount of Rs. 1.00 Crore. This offer clearly depicted that possession of the suit land is still with the appellant. Narrations of the agreement revealed that respondents entered into agreement for development of the land by laying some housing scheme and were to pay part of the sale consideration on 22.3.2004 after developing the land, possession of which was not handed over to them. Tentatively, claim of the appellant regarding payment of one Crore rupees without handing over of possession and without giving crucial period of one year and three months to the respondents, is opposed to the terms settled between the parties. Respondents had made out a prima facie/arguable case in their favour and they could not be further burdened to pay/deposit another amount of Rs. 1,00,00,000/- without giving them possession of the suit land, contrary to the agreement.
Restraint on alienation of the suit property would not result in any irreparable loss/injury to the appellant whereas the same may occur to the respondents who will face further complications and multiplicity of proceedings. Balance of convenience also leaned in favour of the respondents and the appellant would not suffer any inconvenience in case the injunction issued is allowed to continue. Respondent's suit has already reached at the stage of evidence which could not recorded on account of stay of proceedings by this Court, hence recall of injunctive order issued by the trial court which was granted after due consideration of respective cases of the parties and according to the settled principle governing issuance/refusal of prohibitory orders, at this stage, appeared to be not just/fair. Scan of record and impugned order, revealed that restraint order is not arbitrary/fanciful and being within the four corners of law, admitted no exception. It is however, made clear that all the findings by this Court and those by the trial Court are only confined to disposal of stay matter and would not influence the trial Court while deciding the suit on merits according to the law and evidence of the parties, which ultimately they will produce.
For the reasons, noted above, trial Court committed no error of law and its impugned order being lawful is maintained whereas instant appeal being devoid of any merit is dismissed. In view of the nature of dispute between the parties, the trial Court is directed to endeavour to conclude the proceedings in the suit expeditiously. There will be not order as to costs.
(Aziz Ahmad Tarar) Appeal dismissed.
PLJ 2006 Lahore 854
Present: Sayed Zahid Hussain, J.
MUHAMMAD IBRAHIM and 2 others--Petitioners
versus
ABDUL HAQUE and 4 others--Respondents
W.P. No. 64-R of 1996, decided on 3.5.2006.
Evacuee of Property and Displaced Persons Laws (Repeal) Act, 1975 (XIV of 1975)--
----S. 2(3)--Constitution of Pakistan (1973), Arts. 175 (2) & 199--Repeal of evacuee laws--All Assistant Commissioner of Punjab except District of Lahore were notified as Notified Officers to exercise powers of Deputy Settlement Commissioners--Order of specified date passed by Notified Officer was not appealable under any law--Wholly incompetent appeal was filed by respondent before Addl. Commissioner (Revenue) who assumed jurisdiction in the matter without any lawful authority and acted without jurisdiction in passing impugned order in favour of respondent--Remedy of appeal being creation of statute and same having not been provided under relevant law i.e. Act XIV of 1975, could not have been exercised by Addl. Commissioner--In terms of Art. 175(2) of the Constitution, "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law"--Thus, jurisdiction exercised by Addl. Commissioner was un-authorised and not warranted by law--Such lack of jurisdiction cannot be over looked and the same was declared to be without jurisdiction and of no legal effect--Order passed by Addl. Commissioner in favour of respondent being without jurisdiction was set aside while that of Assistant Commissioner as Notified Officer in favour of petitioner was restored. [Pp. 857, 858, 859 & 860] A, B & C
PLD 1973 SC 236; 1984 SCMR 1027; 1985 SCMR 491; 1988 SCMR 516; PLD 1991 SC 504; PLD 1991 SC 691; PLD 1997 SC 351; PLD 2001 SC 415; PLJ 2002 Lah. 612; 2003 SCMR 549; PLD 2003 SC 899; 2003 SCMR 1221; KLR 2005 SC 33; PLJ 2005 SC 709; 2005 SCJ 919; PLD 1987 SC 145; PLJ 1998 Lahore 779 and PLD 1981 SC 94, ref.
Kh. Ahmad Tariq Raheem, Advocate for Petitioners.
M/s Mian Nisar Ahmad and Saadat Nisar, Advocates, Malik Noor Muhammad Awan, Kh. Saeed-uz-Zafar & Mr. M.D. Tahir, Advocates Mr. Aamir Rehman, Addl. A.G. Punjab for Respondents.
Dates of hearing : 3.4.206, 6.4.2006, 2.5.2006 & 3.5.2006.
Judgment
There was an allotment of land measuring 1894 Kanals and 13 Marlas at Khata RL-II No. 1007 Mauza Bikki Tehsil and District Sheikhupura in the name of Mst. Zainab Bibi made in the year 1961. On her death, a mutation of inheritance was sanctioned on 6.9.1961 in the name of Israr Ahmed Khan, Saifullah and Muhammad Zaman Khan as her legal representatives. They sold some land in favour of one Nabi Bukhsh through a registered sale-deed dated 25.6.1962 which was followed by a mutation sanction on 30.11.1962 in favour of the vendee. 349(K)-13(M) of land was purchased by Muhammad Ibrahim and his two brothers (petitioners) from the said Nabi Bukhsh through registered sale-deed dated 21.1.1964 and Mutation No. 909 was sanctioned in their favour on 22.3.1964. The allotment of Mst. Zainab became subject-matter of scrutiny on a complaint by Abdul Haque. As a sequel whereof the Deputy Settlement Commissioner, West Pakistan, Lahore exercising powers of Chief Settlement Commissioner vide order dated 1.1.1965 cancelled her allotment. Israr Ahmed Khan assailed the order of the Deputy Settlement Commissioner through W.P. No. 267-R/65 which was dismissed by a learned Division Bench of this Court on 16.4.1965 whereagainst petition for leave (CPLA No. 227/65) was also dismissed on 1.7.1965 by the Hon'ble Supreme Court of Pakistan. Muhammad Ibrahim etc vendees thereafter filed W.P. No. 1018-R/69 which was disposed of on 25.6.1973 by remitting the matter to the Deputy Settlement Commissioner for decision afresh after hearing the parties. The matter was pending when the evacuee laws were repealed in 1975. It was eventually taken up by the Assistant Commissioner, Sadar Sub-Division/Notified Officer, Sheikhupura on 18.5.1995 who restored the allotment at Khata No. 1007 in favour of Mst. Zainab Bibi. Against the said order, an appeal was filed by Abdul Haque and Mst. Sardaran which was accepted by the Additional Commissioner (Revenue) Lahore Division, Lahore on 28.12.1995. The present writ petition was filed to assail the same inter alia on the ground that since the order passed by the Notified Officer on 18.5.1995 was not appealable, order dated 28.12.1995 was result of illegal assumption of jurisdiction and was without lawful authority.
The petition initially was heard by Ghulam Mehmood Qureshi, J. (as he then was) who accepted the same exparte on 17.1.2000 which order was, however, set aside later on with the consensus of the learned counsel for the parties and the petition was then accepted vide judgment dated 3.5.2002 declaring order dated 28.12.1995 as unlawful and of no legal effect. C.P. No. 2122-L/02 and C.P. No. 395-L/03 were filed by Abdul Haque etc. and M/s Olympia Textile Mills (Pvt.) Limited etc. respectively which came up before their lordships of the Hon'ble Supreme Court of Pakistan on 25.1.2005 and were disposed of as follows:
"This order will dispose of Civil Petition No. 495-L/2003 and 2122-L/2002 having commonality of facts and law, stemming out of the same judgment delivered by a learned Judge of the Lahore High Court dated 3rd of May, 2002 granting the captioned Writ Petition No. 64-R/1996.
The petition has, thus, come up for hearing again. During the pendency of the petition some more parties in addition to those who were party in the writ petition initially and those who assailed the judgment of this Court before the Hon'ble Supreme Court of Pakistan also applied to be impleaded who have with the consent of all been impleaded and arrayed as respondents.
All the parties are represented through their learned counsel who have been heard in the matter.
The learned counsel for the petitioners reiterates his contention as to the illegal assumption of jurisdiction by Respondent No. 13 on an appeal filed before him which was not competent. It is contended that the order being entirely without jurisdiction, the same is liable to be declared as of no legal effect.
The learned counsel for the respondents have mainly devoted their attention to attack the order passed by the Notified Officer on 18.5.1995 and contend that he had acted contrary to the earlier orders passed up to the Hon'ble Supreme Court of Pakistan which operate as res-judicata. It is contended and urged vehemently that since the predecessor-in-interest of the petitioners had committed fraud in obtaining the allotment and concealing the material facts from the Court, they should be denied relief by dismissing the writ petition and that being vendees from the allottee (whose allotment had been cancelled) they had no right in the land nor could maintain a petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 which jurisdiction is discretionary in nature and cannot be invoked by a person whose object is to retain ill gotten gains. Reference has been made to Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others (PLD 1973 SC 236), Manzoor Hussain v. Fazal Hussain and others (1984 SCMR 1027), Gul Muhammad and others v. The Additional Settlement Commissioner and others (1985 SCMR 491), Zameer Ahmad and another v. Bashir Ahmad and others (1988 SCMR 516), Syed Ali Shah v. Abdul Saghir Khan Sherwani and others (PLD 1990 SC 504), Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others (PLD 1991 SC 691), Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351), Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others (PLD 2001 SC 415), Mst. Aziz Bibi and 22 others v. Additional Commissioner (Revenue) Lahore and another (PLJ 2002 Lah. 612), Talib Hussain and others v. Member, Board of Revenue and others (2003 SCMR 549), Mst. Bilqees Begum and others v. Additional Commissioner (Revenue), Lahore and others (PLD 2003 SC 899), Muhammad Sharif through Legal Heirs and 4 others v. Sultan Hamayun and others (2003 SCMR 1221), (Major (Retd.) Barkat Ali and others v. Qaim Din and others (K.L.R. 2005 S.C. 33), Chairman Pakistan Agricultural Research Council (PARC), Islamabad and another v. Dr. Abdul Rashid, Scientific Officer, Oilseed Research Programme, PARC, Islamabad (PLJ 2005 SC 709) and M/s M.K.B Industries (Pvt.) Ltd. etc. v. Chairman, Area Electricity Board, WAPDA, (Peshawar Electric Supply Corporation Ltd. (PESCO), Peshawar and others (2005 SCJ 919).
From the factual background it is discernable that the allotment of Mst. Zainab Bibi was ordered to the cancelled by Deputy Settlement Commissioner on 1.1.1965 and the writ petition filed by Israr Ahmed Khan was dismissed on 16.4.1965 and even petition for leave was also dismissed on 1.7.1965 by the Hon'ble Supreme Court of Pakistan. Muhammad Ibrahim and his two brothers who had before the cancellation of allotment of Mst. Zainab Bibi purchased the land in dispute i.e. 349(K)-13(M) when learnt of the same, filed W.P. No. 1018-R/69 which as mentioned above was disposed of on 25.6.1973 remanding the matter to the Deputy Settlement Commissioner. The said judgment became final qua the parties, not having been assailed further in terms of Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others (PLD 1987 SC 145). An application under Section 12(2) of Code of Civil Procedure, 1908 (C.M. 109/2000) made in the said petition qua the same has been dismissed vide the separate order of even date. On repeal of the laws by means of Evacuee Property and Displaced Persons Law (Repeal) Act, 1975 (Act XIV of 1975), the Notified Officers took over the functions of the defunct Settlement Authorities and various notifications were issued from time to time notifying officers to perform such functions as Notified Officer. All the Assistant Commissioners in the Punjab except the district of Lahore were notified as Notified Officers to exercise the powers of Deputy Settlement Commissioners. Order dated 18.5.1995 was, thus, passed by the Assistant Commissioner Sheikhupura exercising the powers as Notified Officer pursuant to notification dated 3.11.1991. The said order was not appealable under any law and wholly an incompetent appeal was filed by Abdul Haque etc. before the Additional Commissioner (Revenue) Lahore who assumed jurisdiction in the matter without any lawful authority and acted without jurisdiction whatsoever in passing the impugned order. He was non-entity under the law i.e. Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975). The legal position is fairly settled and there is no obscurity that remedy of appeal can only be availed if so provided by law. It does not inhere in any party. Such a remedy (of appeal) is creation of the Statute and unless it is so provided by law it can neither be availed nor assumed inferentially. Reference in this context may be made to a Full Bench judgment of this Court in Irshad Imran Sulehri v. Election Tribunal etc. (PLJ 1998 Lahore 779 (FB) wherein it was observed that "right to appeal must be expressly conferred and cannot be implied. That being so, the appeal of Respondent No. 3 was clearly incompetent and Tribunal could not have assumed the jurisdiction of such an appeal." Similar position had been stated in Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94) wherein it was observed that "a right of appeal from any decision of any Tribunal must be given by express enactment." Even if the learned Additional Commissioner (Revenue) had felt some taint of illegality in the order, he should have in view of lack of jurisdiction left the party to avail the legal remedy elsewhere as per law. The whole emphasis of the learned counsel for the respondents is that since there had been an element of fraud, this Court should not interfere in the matter. Their precise contention is that neither while passing order dated 25.6.1973 this Court could have then remanded the matter to the Deputy Settlement Commissioner at the instance of the petitioners/vendees nor should the Court now interfere. Their contention, however, overlooks an essential aspect that what has been assailed before this Court through the present petition is order dated 28.12.1995 passed by the Additional Commissioner (Revenue) who purported to act as an appellate forum on an appeal which was not at all competent or maintainable. Since assumption of jurisdiction by him was provenly being without the backing of any contemporaneous law, the order passed by him was wholly without jurisdiction and without lawful authority. Indeed such an assumption of jurisdiction and order passed as a consequence thereof fell within the ambit of Clause (ii)(a)(1) of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 which reads as follows:
"199. (1) Subject to the Constitution, a High Court many, if it is satisfied that no other adequate remedy is provided by law,--
(a) on the application of any aggrieved party, make an order--
(i) ....................
(ii) Declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or"
While exercising writ jurisdiction as envisaged by Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the provisions of Clause (2) of Article 175 of the Constitution also need to be kept in view that "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law." Thus, jurisdiction exercisable by any Court is only to the extent that may be conferred by the Constitution or by or under any law. Even the jurisdiction of this Court under Article 199 of the Constitution is not an inherent jurisdiction but is subject to all inhibitions and its limitations. It may be observed that an act is without lawful authority and of no legal effect when the person doing it had no authority or jurisdiction to do it under the law under which he purported to act. Such an act is ultra-vires and without jurisdiction. A case of inherent incompetency, total lack or want of jurisdiction cannot be overlooked which is liable to be declared as without lawful authority and of no legal effect. The order passed by the Additional Commissioner (Revenue) on 28.12.1995 falls within such category of orders. It may be mentioned that legality or otherwise of order of Notified Officer dated 18.5.1995 is not the subject-matter of challenge in the writ petition. Since none of the respondents have assailed the same through any proper proceedings, no comments are called for about the same. I fail to understand how the respondents can in this petition seek to assail the said order and impress upon the Court to ignore or declare the same as illegal. The precedents sought to be invoked by the learned counsel for the respondents proceed on the peculiar facts of those cases. The principle that relief should not be granted by the Court when the same could result in injustice is deducible from Nawab Syed Raunaq Ali (supra) which finds mention in most of the subsequent cases. The ratio of that case is that discretionary relief should not be granted where it would amount to perpetuation of injustice. But it is not so in the instant case inasmuch as the petitioners are not asking for the grant of a relief which may permit them to retain ill-gotten gains rather they are asking for striking down of an order which is wholly without jurisdiction. While considering this aspect of the matter, a question had been agitating my mind as to what would have been the fate of an order passed by a Sessions Judge purporting to have acted as appellate Court qua the order of Notified Officer. Would the Court overlook or condone such an order merely for the reason that the jurisdiction being exercised by this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 was of discretionary nature? Refusal to exercise jurisdiction by this Court, according to my respectful view, would in such a situation, result in perpetuation of usurpation of power not warranted to law and would be contrary to the mandate of Article 175(2) and Clause (ii)(a)(1) of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Since in the instant case the order passed by the Additional Commissioner (Revenue) dated 28.12.1995 has been found as the one without jurisdiction, the same is liable to be declared as of no legal effect.
In view, of the above, the assumption of jurisdiction by Respondent No. 13 in entertaining the appeal and passing the ultimate order dated 28.12.1995 is declared as without lawful authority and of no legal effect. The writ petition is accepted accordingly. No order as to costs.
(Aziz Ahmad Tarar) Petition accepted.
PLJ 2006 Lahore 860 [Multan Bench Multan]
Present: Maulvi Anwarul Haq, J.
WARIS ALI--Petitioner
versus
GHULAM NABI & 5 others--Respondents
C.R. No. 672/D of 2004, heard on 17.2.2005.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Adjustment amount of zar-e-saum--Suit was decreed subject to deposit stipulated amount with trial Court on or before specified date subject to adjustment of amount that could have been deposited by way of zar-e-saum--In case the petitioner fail to make deposit amount within time stipualted suit would stand dismissed with costs throughout. [Pp. 863 & 864] B
Talabs--
----Suit for possession of the land by pre-emption--Contention of--Performance of Talabs--Non-fulfilment of the talabs--Held: Matter of performance of talabs is very crucial in a suit for pre-emption but that is all it is--If the defendants had not raised any objection, the Courts were not called upon to dismiss the suit on such ground--Impugned judgment and decree set aside--Revision allowed. [P. 863] A
Malik Javed Akhtar Wains, Advocate for Petitioner.
Ch. Ghulam Din Aslam, Advocate for Respondents.
Date of hearing : 17.2.2005.
Judgment
Vide Mutation No. 821 attested on 5.11.2001 the respondents purchased the suit land, described in the plaint, for a consideration of Rs. 4,00,000/-. On 21.2.2002 the petitioner filed a suit for possession of the suit land by pre-emption. In the plaint it was stated that he is a Shafi Sharik, Khalit and Jar and has a superior right of pre-emption. It was then stated that the land has, in fact, been sold for Rs. 2,25,000/-. It was then stated that on 5.11.2001 the petitioner came to know about the sale of the land and he made a talb-muwathibat. On 7.12.2001 he issued a notice of talb-i-Ishhad. The respondents filed a written statement on 23.4.2002. Para-2 of the plaint containing the statement that the petitioner has a superior right of pre-emption was admitted. Para-5 in which making of talb-i-muathibat was alleged was admitted. Para-6 where making of talb-i-ishhad was alleged was admitted and it was stated that notices were received. It was, however, vehemently urged that the land has been purchased for Rs. 4,00,000/- and that the vendees have spent Rs. 20,000/- towards mutation charges and Rs. 4,000/- as District Council fee. I deem it appropriate to reproduce here the prayer clause of the written statement:--
Following issues were framed by the learned trial Court:--
Whether the defendants are entitled to recover the incidental charges amounting to Rs. 24000/- in case of decree of the suit in favour of the plaint? O.P.D.
Whether the plaintiff has performed the requirements of talabs in accordance with law? O.P.P.
Whether the ostensible sale price of Rs. 400,000/- has not been actually fixed and paid by the defendant to the vendee ? O.P.P.
If Issue No. 3 is proved in affirmative, then what was the market value of the suit land at the time of its sale? O.P. Parties.
Whether the plaintiff is entitled to the relief as prayed for in the plaint? O.P.P.
Relief.
The petitioner produced evidence both oral and documentary. None of the respondents or any witness entered the witness box for them. Only copy of the Mutation No. 821 was produced as Ex. D.1. Vide judgment and decree dated 18.6.2003, it was found under Issue No. 3 that the land has been purchased for Rs. 4,00,000/-. Issue No. 4 was found to be redundant. Issue No. 1 was answered against the respondents. Issue No. 2 and consequently Issue No. 5 were answered against the petitioner. The suit was dismissed. A first appeal filed by the petitioner was dismissed by a learned ADJ, Kehror Pacca, District Lodhran, on 4.6.2004.
Learned counsel for the petitioner argues with reference to the pleadings of the parties that the respondents never raised any objection in the matter of talabs. On the other hand, they prayed that the suit be decreed on payment of the amount claimed by them. According to him, the only point to be decided was as to on what terms the suit is to be decreed. Learned counsel for the respondents, on the other hand, vehemently urges that the non-fulfilment of the talabs was apparent on the face of the plaint and as such notwithstanding the fact that the respondents had not objected and had made the said prayer, the learned Courts below have acted within their domain to dismiss the suit.
I have gone through the copies of the records. I have already reproduced in some details the contents of the respective pleadings of the parties. Now the learned counsel for the respondents has cited the cases of Abdul Qayyum v. Muhammad Rafique (2001 SCMR 1651) and Ghee Corporation of Pakistan (Pvt.) Ltd. v. Vrokenhil Proprietary Co. Ltd. (2003 Y.L.R. 2040) to urge that the Judges are to wear the law on their sleeves and to apply the same whether the litigants draw their attention or not, it is the duty of the Court to apply correct laws. I am in complete agreement with the learned counsel for the respondents.
Now it will be seen that, in the first instance, the plaint was not examined by the learned trial Court while issuing summons to the respondents. I am clear in my mind that the plaint as it is does got to reflect that talb-i-ishhad was not made within the time prescribed by law. However, this stage crossed. The respondents put in appearance. They read the plaint and filed a written statement. They opted not to raise any objection on the ground that performance of talabs has not been made in the manner prescribed by law or for that matter that the talabs have not been performed. On the other hand, they mad ea prayer of their own to the Court that they have no objection that the suit be decreed on payment of Rs. 4,24,000/-. There is nothing on record to show that the petitioner was ever confronted with the said prayer of the defendants.
Now the learned trial Court was observed that although the respondents have prayed that the suit be decreed on payment of Rs. 4,24,000/-, since in the plaint, it was stated that the land has been sold for Rs. 2,25,000/-, it framed with issues already reproduced by me above. Now the question arises when the only point of conflict was within the knowledge of the trial Court. One fails to understand as to why the said issues were framed. The only relevant issues were Issue No. 1 and Issue No. 3 as there was no controversy whatsoever on any other point. It will be noted that issue regarding superior right of pre-emption has not been framed. On the same principle, there was no need to frame issue regarding the performance of talabs.
The learned ADJ in his impugned judgment has gotten rid of the matter by making observation that the respondents contested the suit vehemently on law and facts. He even proceeded to state that the respondents have objected that the petitioner has failed to fulfil the talabs as required by Statute and have prayed that no decree can be passed in favour of the petitioner. I am afraid that this is totally incorrect statement as it would be apparent from a bare reading of the written statement.
Now, of Course, under the present dispensation, the matter of performance of talabs is very crucial in a suit for pre-emption but that is all it is. If the defendants had not raised any objection, the Court were not called upon to dismiss the suit on the said ground. I seek to draw support from the following observations of Chief Justice Muhammad Afzal Zullah (as his Lordship then was), in the case of Mst. Kharo and 2 others v. Sher Afzal alias Sheray (1992 SCMR 1844) at page 1846:--
"There is no cavil with the proposition that the question of Talabs is the basis and fundamental issue in every pre-emption case under the Islamic dispensation but depending upon the facts and circumstances of each case, it is essentially a question of fact whether or not the requisite Talabs were made by the plaintiff and all the conditions regarding thereto were satisfied. That being so, it is the will and the choice of the defendant/vendee in such a matter to raise or to give up the plea regarding Talabs which otherwise can be raised without any hindrance subject again to the availability of such a plea on merits. In this case, the learned counsel for the petitioners having given up the contest on the basis of the points regarding Talabs, and the High Court having proceeded on the said assumption, it cannot be said that the judgment rendered as a result of the giving up the plea regarding Talabs, suffered from any infirmity. We do not agree with the learned counsel that if a party gives up a plea regarding facts of the case, it is still the duty of the Court to examine the same."
It will further be seen that the respondents remained faithful to the prayer made in their written statement and did not even lead any evidence in the case. Till date no attempt was made to make amendment in the written statement.
I have called upon the learned counsel for the petitioner as to whether his client is prepared to accept the prayer made by the respondents in their written statement and he answers in affirmative.
This civil revision accordingly is allowed. The impugned judgment and decreed passed by the learned Courts below are set aside and the suit filed by the petitioner is decreed subject to deposit of Rs. 4,24,000/- with the learned trial Court on or before 31.3.2005 subject to adjustment of any amount that might have been deposited by way of zar-e-saum. In case the petitioner fails to make the said deposit within the time stipulated above, his suit shall stand dismissed with costs throughout. At the moment, the parties are left to bear their own costs.
(Hina Anwar) Revision allowed.
PLJ 2006 Lahore 864 (DB) [Multan Bench Multan]
Present: Maulvi Anwarul Haq & Fazal-e-Miran Chauhan, JJ.
KALEY KHAN--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, MULTAN and 3 others--Respondents
W.P. No. 981 & 96 of 2004, decided on 21.7.2005.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 2(d) & 115--Constitution of Pakistan, 1973, Art. 199--Question of law--Extraordinary jurisdiction of High Court--Maintainability--Held: Order rejected the plaint is a decree in terms of Section 2(d) C.P.C. but was appealable only if the same was passed by any Court exercising the original jurisdiction and that the revisional Court while exercising its jurisdiction u/S. 115 C.P.C. could not be treated to be the Court of original jurisdiction as such the order passed through being a decree can not be challenged by way of an appeal u/S. 96 C.P.C.--Regular First Appeal u/S. 96 would not be available against the orders passed by revisional Courts rejecting the plaints--Petition competent. [Pp. 867 & 868] A & B
Mr. Asmat Ullah Khan Niazi and Mian M. Arshad Latif, Advocates.
Date of hearing : 21.7.2005.
Order
Maulvi Anwar ul Haq, J.--This Bench has been constituted by the Hon'ble Chief Justice pursuant to the following order dated 18.6.2004 passed by our learned brother Muhammad Khalid Alvi J. in the matter of an Office Report in W.P. No. 981/04:--
"Vide order dated 18.3.2004, the Constitutional petition filed by the petitioner was directed to be treated as a Regular First Appeal. The Office has put up a note with reference to a judgment passed by my learned brother Muhammad Akhtar Shabbir, J, reported as 2001 MLD 414 to point out that in the identical circumstances his Lordship has observed that Regular First Appeal is not maintainable.
Factual background of the case is that the petitioner filed a civil suit against Respondents Nos. 2 to 4. The said respondents moved an application under Order 7, Rule 11 C.P.C. before the learned trial Court with a prayer to reject the plaint. This application was contested by the petitioner, however, the same was dismissed by the learned trial Court vide order dated 10.6.2003. This order was assailed by respondents through a revision. The same was allowed vide order dated 27.1.2004 and rejected the plaint while exercising powers under Order 7, Rule 11 C.P.C. The same was assailed by the petitioner through the Constitutional petition, which was directed by this Court to be treated as Regular First Appeal.
I have gone through the judgment referred by the office, delivered by my learned brother Muhammad Akhtar Shabbir J. Another judgment of the Peshawar High Court reported as 1989 MLD 4873 and a judgment of the Hon'ble Karachi High Court reported as 1995 CLC 1453. The ratio of the above said judgments is that in such eventuality since the order of rejecting plaint is passed by a Court exercising "revisional jurisdiction" and not "original jurisdiction", therefore, under Section 96 of the C.P.C., Regular First Appeal is not competent.
In two cases which have come to my notice i.e. 1989 MLD 4873 of Hon'ble Peshawar High Court and 1989 CLC 15 of Hon'ble Lahore High Court, it was held that if a plaint is rejected by a Court exercising revisional jurisdiction, the same cannot even be assailed under Article 199 of the Constitution.
With absolute humbleness and utmost respect for the above referred able judgments rendered by the Hon'ble Judges of the various High Courts of the Country if the same are followed, it would mean that a litigant, whose plaint is rejected for the first time by a learned District Judge while exercising revisional jurisdiction, he is left with no remedy under the law. The petition under Article 199 is not a remedy provided by law, rather it is an extraordinary jurisdiction of this Court under the Constitution.
On the other hand, I have only been able to lay my hands one judgment of the Hon'ble Karachi High Court reported as NLR 1985 Civil 325 wherein, it was held that in such eventuality, the remedy of RFA is available.
The right of first civil appeal is governed by Section 96 of the C.P.C., which is reproduced as follows:--
"96. Appeal from original decree.--(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decision of such Court.
(2) An appeal may lie from an original decree passed ex-parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
According to the provision of law "every decree" passed by "any Court" exercising "original jurisdiction" is appealable. Meeting thereby, that decree passed for the first time is appealable under this section; secondly, it may have been passed by "any Court". Be it may the trial Court or the revisional Court. The only limitation is that the decree must have been passed by the Court exercising original jurisdiction. In a case like the one is hand, since the trial Court has failed to exercise jurisdiction vested in it by way of which while exercising its original jurisdiction under Order 7, Rule 11 C.P.C. whereby, it could reject the plaint and have failed to exercise his jurisdiction, therefore, the learned revisional Court, while exercising its powers under Section 115(1)(b) has revised the order of the original Court and by exercising powers under Order 7, Rule 11 C.P.C. has rejected the plaint. Meaning thereby, that the revisional Court had assumed the jurisdiction to deal with the case under Section 115 C.P.C. and has exercised the powers of the Original Court under Order 7, Rule 11 C.P.C. Meaning thereby, that while rejecting the plaint the revisional Court has also exercised the original jurisdiction, thus, the decree passed would be appealable under Section 96.
It cannot be presumed that if the plaint of a litigant is rejected for the first time is not provided with any remedy by the law (C.P.C). therefore, for the above stated reasons, I am of the humble view that in such eventuality an appeal is competent.
There is yet another aspect of the case to look at i.e. the word decree has been defined in Section 2(2) of the C.P.C., whereby, the order of rejecting plaint has been given a deeming effect of a decree. Meaning thereby, the rejection of plaint in the ordinary sense is an order but it has been given the deeming effect of a decree. This deeming effect given by the legislature cannot be without any significance. It appears that the order rejecting plaint is to be deemed a decree so as to give a right a appeal to the litigant as a decree whose plaint is being rejected. Thus, it is evident that a plaintiff whose plaint is being rejected cannot be presumed to be without remedy under the scheme of law provided by the C.P.C.
There is still another angle to look into the issue involved in the instant case i.e. in such eventuality if a revisional Court comes to a conclusion that the order passed by the trial Court dismissing an application filed by a defendant under Order 7, Rule 11 C.P.C. is defective it can record its reasons and remand the case to the trial Court for passing an appropriate order on application filed by defendant. If this course is adopted rights of all the parties would be protected in accordance with law.
Since, there is divergent view on a question of law, therefore, it appears expedient that the matter may be referred to the Hon'ble Chief Justice for the constitution of a larger bench to settle the law.
The office is directed to immediately fax this order to the Principal Seat for its consideration by the Hon'ble Chief Justice for appropriate orders."
It will be seen that we are called upon to answer the following question:--
(i) Whether in a case where an order of rejection of plaint in terms of Order VII, Rule 11 C.P.C. is passed by a Court exercising revisional jurisdiction, a first appeal in terms of Section 96 C.P.C. would be available to the aggrieved party?
We have heard Mr. Asmat Ullah Khan Niazi, Advocate, in the matter of W.P. No. 981/04 and Mian Arshad Latif, Advocate, in the matter of W.P. No. 5161/04. Apart from the several judgments noted by his Lordship in the above noted order, Mian Arshad Latif, Advocate, has cited the case of Muhammad Shafi and 5 others v. Amanat Ali and 5 others (2005 MLD 559) a case decided by Mr. Justice Muhammad Muzammal Khan of this Court holding that an order rejecting the plaint is a decree in terms of Section 2(d) C.P.C. but was appealable only if the same was passed by any Court exercising the original jurisdiction and that the revisional Court while discharging its jurisdiction under Section 115 C.P.C. could not be treated to be the Court exercising original jurisdiction and as such the order passed though being a decree cannot be challenged by way of an appeal under Section 96 C.P.C. Mr. Asmat Ullah Khan Niazi, Advocate, draws our attention to the case of Syed Qadir Bakhsh Shah and others vs. Additional District Judge, Dera Ghazi Khan and others (2004 SCMR 1638) wherein the Hon'ble Supreme Court of Pakistan Court has taken a similar view.
On our own we have been able to lay our hands on the case of Buland Khan v. Chiragh Din and 3 others (1981 CLC 249) decide by this Court holding the same view. We, therefore, do find that the consistent view of this Court as well as the learned Peshawar High Court is that an RFA would not be competent in such an eventuality.
Now in the case of Syed Qadir Bakhsh Shah and others, the Hon'ble Supreme Court of Pakistan Court has observed as follows in para-5 of the judgment:
"5. We are of the view that the very idea that the order of learned District Judge was appealable under Section 96, C.P.C. is not in accordance with law. Only those orders and judgments are appealable under Section 96, C.P.C. where the lower Court happened to exercise original jurisdiction. In the instant case the District Judge had passed the order in his revisional jurisdiction and not original jurisdiction. The question of appeal under Section 96, C.P.C. is referable to the nature of jurisdiction exercised and not to the nature of order passed."
Now the facts of the said case were that the application filed by a defendant in a suit, for rejection of plaint, was dismissed by the learned trial Court but was allowed by a learned Additional District Judge in exercise of revisional jurisdiction. The observations made by this Court that the order passed by the ADJ being for rejection of plaint and a decree in terms of Section 2(2) C.P.C. it was appealable under Section 96 C.P.C. It was in this context that the aforenoted observations were made by the Hon'ble Supreme Court of Pakistan. In view of the said opinion recorded by the Hon'ble Supreme Court of Pakistan, we have nothing further to say and respectfully following the same, we do hold that, in the circumstances of the present cases, a Regular First Appeal under Section 96 C.P.C. would not be available against the orders passed by revisional Courts rejecting the plaints. The writ petitions are accordingly found to be competent provided the grounds stated in Article 199 of the Constitution for declaring the orders passed by the revisional Courts to be without lawful authority are available.
The office shall accordingly list these writ petitions before learned Single Bench of this Court for hearing and decision.
(Hina Anwar) Order accordingly.
PLJ 2006 Lahore 868 (DB)
Present: Muhammad Sair Ali & Sh. Azmat Saeed, JJ.
KAISAR A. MONNOO--Appellant
versus
INCOME TAX APPELLATE TRIBUNAL LAHORE and 2 others--Respondents
Income Tax Appeal No. 591 of 2000, decided on 8.6.2005.
Wealth Tax Act, 1963 (XV of 1963)--
----S. 5 (xvii)--Finance Ordinance, 1984, Clause 12 (1) of second schedule--Powers to grant exemption from wealth tax--Question of law--What amounts to residential house for the purpose of exemption of wealth tax--Whether the actual shifting into and maintenance of own residence, was mandatory for the assessee to earn the exemption--Held: Tribunal misconstrued the exemption clause--Exemption clause applied to "one residential house owned and occupied by the assessee for the purposes of his own residence--Purpose means objective goal or end of his own residence--In the context of the meaning of purpose, the exemption clause would read that the assessee should own and actually possess the house with object or a goal or an end of having his own residence therein--Such house should be in the occupation of the assessee who must hold and possess the same with the object of his own residence therein either at present or in future--Tribunal misinterpreted the above exemption provision--Appeal accepted. [Pp. 871 & 872] A, B, C, D & E
Mr. M. Iqbal Khawaja, Advocate for Appellant.
Mr. Ilyas Khan, Advocate for Respondents.
Date of hearing : 3.5.2005.
Judgment
Muhammad Sair Ali, J.--This judgment shall deal with and decide ITA No. 591-2000 and ITA No. 593-2000 being on the identical questions of law and facts and between the same parties.
"The assessing officer noted that the assessee was residing permanently at Lahore and had not shifted his residence to Karachi ....... The learned CIT (Appeals), however, allowed the exemption after the assessee's AR rebutted the allegation of the assessing officer that the assessee had been maintaining residence at 70-Main Boulevard, Lahore. The learned CIT (Appeals) found that such premise belonged to M/s. Ravi Construction Company, Lahore for the assessment year 1990-91 and that the ownership of such property had been discussed in the assessment order of such company for that year... .... The onus of proving that the house was "maintained" by the assessee for his own residence lies on the claimant of the exemption. Merely because premises described as 70-Main Boulevard Gulberg, Lahore were property of Ravi Constructions (Pvt) Ltd., Lahore did not mean that the same were not used by this assessee for residential purpose. In any case, we do not find any mention of such reason being given in the assessment order. Hence we find that there was no sufficient evidence or clause to allow the exemption of this property to the assessee by the learned CIT(A). Hence, we restore the orders of the assessing officer in all the three years on this issue. All the three appeals of the revenue succeed to the extent indicated above."
"Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was justified in accepting the appeal and confirming the disallowance of exemption of residential house although there was no allegation that house was occupied for any other purpose than residential purpose?"
"Wealth tax shall not be payable by an assessee in respect of the following assets, and such assets shall not be included in the net wealth of the assessee--
(1) .. ... ... ...
(2) .. ... ... ...
(3) .. ... ... ...
(4) .. ... ... ...
(5) .. ... ... ...
(6) .. ... ... ...
(7) .. ... ... ...
(8) .. ... ... ...
(9) .. ... ... ...
(10) .. ... ... ...
(11) .. ... ... ...
(12) (1) One residential house, owned and occupied by the assessee for purpose of his own residence, where the assessee opts to exclude such house from his assets:
Provided that such option may be exercised by either of the spouse;
.. ... ... ..... ... ... ..... ... ... ..."
(i) One residential house;
(ii) owned by the assessee;
(iii) occupied by such assessee;
(iv) for the "purpose" of assessee's own residence.
In the present case, the parties are not at dispute that the house at Karachi for which the exemption was claimed by the assessee was not a residential house owned and occupied by the assessee. The Assessing Officer and the learned Tribunal took the view that the said house was not "maintained by the assessee for his own residence and that no evidence was produced by the assessee thereto." The exemption was, thus, denied by the Assessing Officer as well as by the learned Tribunal to the assessee. It was also held by them that "since the assessee is permanently residing at 70-Main Boulevard Gulberg, Lahore and had not shifted his residence to Karachi, the exemption claimed is, therefore, not allowed."
Normally, the question as to whether a residential house is occupied for the purposes of assessee's own residence or not is a question of fact which cannot be the subject matter of further appeal before this Court. In the present case, however, the observations of the Assessing Officer and those of the learned Tribunal as referred to above have changed the nature of the litigated question into a question of law. The Assessing Officer and the learned Tribunal denied exemption to the assessee for the reasons that the assessee permanently maintained his residence at 70-Main Boulevard Gulberg, Lahore and had not shifted his residence to Karachi and also that there was no evidence produced by him to prove that Karachi house was "maintained by him for his own residence."
The concise issue that legally arises for determination in the present case is as to whether the actual shifting into and maintenance of own residence, was mandatory for the assessee to earn the exemption. The view of the learned Tribunal is in the affirmative that the assessee must own, occupy and personally reside in the claimed house to avail of the exemption clause.
Our considered view is that the Assessing Officer and the learned Tribunal misconstrued the exemption clause and restricted the scope thereof to a limit that the legislature had not imposed. An additional condition was read into the exemption clause while no such condition had been so prescribed.
The exemption clause applied to "one residential house owned and occupied by the assessee for the purposes of his own residence .. ... ... ..." The conditions attracted to the exemption were that the claimed house must be residential. It must be owned and occupied by the assessee. And that such occupation by the assessee must be "for the purposes" of his own residence.
The word "purpose" has been defined by the Blacks Law Dictionary, 7th Edition as under:--
"Purpose" An objective, goal, or end .. ... ... ..."
Considered in the context of the meaning of the word "Purpose", the exemption clause would read that the assessee should own and actually possess the house with an object or a goal or an end of having his own residence therein. Such a house should be in the occupation of the assessee who must hold and possess the same with the object of his own residence therein either at present or in future. The law does not impose upon the assessee the pre-condition of actual shifting into or/and maintaining self residence in the house. Holding the house for such a purpose is adequate to avail of the exemption.
It appears that the learned Tribunal omitted to read the word "purpose" in the above referred exemption clause. Instead it attached the exemption to the actual residence of the assessee while no such condition was prescribed by the law givers. In the present case, therefore, it was immaterial that the assessee was residing at 70-Main Gulberg, Lahore (a property admittedly not owned by the assessee at the relevant time and had not shifted into the Karachi house). The assessee was entitled to the exemption from the wealth tax on one residential house owned and occupied by him any where in Pakistan provided the purpose of occupation of such house was his own residence. By claiming exemption of only the Karachi house as owned and occupied by him with the object of his own residence, the assessee had declared his intention, goal or the purpose. The onus shifted upon the Revenue to prove otherwise through strong evidence that the purpose of such occupation by the assessee was not his own residence. It was not the case of the Revenue that some one else was occupying and residing in the Karachi house though the same was owned by the assessee.
We are, therefore, of the opinion that the learned Tribunal misinterpreted the above exemption provision. It was not justified in accepting the departmental appeal to disallow the exemption of the Karachi house to the assessee. The question as raised in this appeal is answered in the negative. Consequently, this appeal is accepted.
(Hina Anwar) Appeal accepted.
PLJ 2006 Lahore 873
Present: Syed Hamid Ali Shah, J.
M/s. PAKISTAN INDUSTRIAL LEASING CORPORATION LTD.--Petitioner
versus
M/s. SUNRISE TEXTILES LTD. through its CHIEF EXECUTIVE--Respondent
C.O. No. 10 of 1995 and C.M. No. 519-L of 2004, decided on 28.4.2006.
Companies (Court) Rules, 1997--
----R. 237--Civil Procedure Code (V of 1908), O. XXI, Rr. 64 to 73 & 89 to 92--Auction of assets of company in liquidation--Ex-Directors and share holders of company seeking setting aside of sale--Legality--Provisions of C.P.C. pertaining to Court's sale contained in Rules 64 to 72 and 89 to 92 of O. XXI have no application to sales conducted under provisions of Companies Ordinance, 1984--Such sales are governed under terms and conditions as settled and approved by Company Court--Auction conducted in present case having been conducted on terms and conditions as approved by Court, sale in question, was not liable to be set aside merely on pretext that provisions of relevant rules of O. XXI C.P.C. governing sale through Court auction were not adhered to, as such provisions have no application in present case--While conducting sale through public auction, terms and conditions for sale are settled not in terms of relevant Rules of C.P.C. but under R. 237 of Companies (Court) Rules 1997--Impugned sale however, cannot be confirmed/approved in terms of R. 236 of Companies (Court) Rules 1997, where under reserved price was necessity to persuade to creditor to buy property at market competeable price--Participation of decree holder in auction had worked disadvantageous to rights of judgment debtors--Interest of justice would demand that fresh sale be conducted with a reserve price on basis of fresh appraisal/evaluation of assets--Petitioner would got fresh appraisal of assets through auction to be conducted by a person appointed by the Court for such purpose who would make inventory and appraise value of assets and thereafter reserve price would be fixed for auction of assets in question. [Pp. 875 & 876] A, B & C
2000 CLC 863; PLD 1993 Lahore 706; 2005 SCMR 1237; 1987 CLC 2109; 1992 SCMR 227 and 1993 SCMR 1635, ref.
Mian Saadat Nisar, Advocate for Petitioner.
Mr. Hamid Khan, Advocate.
Mr. Shakeel-ur-Rehman Khan, Advocate/official Liquidator.
Mian Sultan Tanvir Ahmad, Advocate for PILC Ltd.
Date of hearing : 1.2.2006.
Order
Sunrise Textile Mills Ltd. was ordered to be wound up on 3.7.1997. Consequently joint official liquidators were appointed to carry the winding up proceedings under Ordinance, 1984. Crescent Commercial Bank (decree-holder in COS No. 4 of 2000) sought permission to participate in the bid, as decree-holder, which was accorded vide order dated 17.11.2003. The auction of the assets of the company (in liquidation) was held on 29.5.2004, after publishing the proclamation of sale in daily "Business Recorder" Karachi in it's print dated 6.5.2004 and daily "Nawa-e-Waqt" Multan in its print dated 6.5.2004. Crescent Commercial Bank was declared as successful bidder, having offered the highest bid of Rs. 58 millions of the assets.
Applicants are the ex-directors and share-holders of the company in liquidation, who have filed the instant application. Applicants seek setting aside the sale on the grounds that: (i) assets have been auctioned without fixing any reserve price (ii) project has been sold for inadequate price (iii) proclamation of sale does not meet the requirement of Order XXI, Rules 66 & 67 and (iv) the property has been sold without first attaching it under the law.
Respondents, on the other hand, have resisted the application, filed reply and controverted the averments made in the application.
Learned counsel for the applicants while referring to the cases of "Mrs. Aziz Fatima and 3 others versus Mrs. Rehana Chughtai and 3 others" (2000 CLC 863), "Brig. (Retd.) Mazhar ul Haq and another vs. M/s Muslim Commercial Bank Limited, Islamabad and another" (PLD 1993 Lahore 706) and "Mohib Textile Mills Ltd. vs. National Bank of Pakistan, Karachi and others" (2005 SCMR 1237), has contended that sale the assets have been sold without fixing the reserve price for throw away price. Assets were sold for Rs. 58 millions, while decree passed against the company is for Rs. 122 millions. It was then contended that the assets were evaluated through Haseeb Associates, who assessed the value of the assets on 8.9.1994, to the tune of Rs. 417,648,339/- for weaving unit and Rs. 366,831,750/- for spinning unit.
Learned counsel for the respondent on the other hand has submitted that the applicants have filed objection under Order XXI Rule 90, without depositing 20% of the amount which is mandatory requirement of law. The application merits dismissal on this score alone. It was contended that the machinery of the project has become obsolete and evaluation report does not depict true picture. Learned counsel added that various attempts were made but no serious buyer came forward to purchase the assets. Rule 237 of the Companies (Court) Rules, 1947 was referred to contend that reserve price in every sale is not necessary. Company Judge has vast powers under the above referred rule, to allow the sale of the property subject to such terms and conditions including fixation of the reserve price, if any, as the Court may approve. Learned counsel has then referred to Section 333(f) of the Companies Ordinance, 1984 wherein Official Liquidator is empowered to sell moveable and immovable property of the company by public auction or private contract with the power to transfer the whole thereof to any person or company or to sell the same in parcels. Learned counsel has referred to the case of "Specialty Traders versus Ferdous Textile Mills Limited" (1987 CLC 2109) to contend that provisions of Order XXI, Rules 64 to 73 are not applicable to the sale of assets of the company in the liquidation proceedings.
Heard learned counsel for the parties and perused the record.
The assets of the company (in liquidation) are being sold in the liquidation proceedings. The provisions of Companies Ordinance, (XLVII of 1984) govern such sales. Company law being a special statute and provisions thereunder will supersede the general law. The reference in this respect can be made to the cases of "Syed Matloob Hassan vs. Brook Bond Pakistan Limited Lahore" (1992 SCMR 227) and "Golden Oraphies (Pvt.) Ltd. and 12 others vs. Director of Vigilance, Central Excise, Customs and Sales Tax and others" (1993 SCMR 1635). The relevant provisions of CPC pertaining to the Court's sales contained in Rules 64 to 73 and 89 to 92 of Order XXI CPC have no application to the sales conducted under the provisions of Companies Ordinance, 1984. Such sales are governed under the terms and conditions as settled and approved by the Company Court. Rule 237 of Companies (Court Rules, 1997 reads as under:--
"Procedure at Sale.--(1) Every sale shall be held by the official liquidator, or, if the Judge so directs, by an agent or an auctioneer approved by the Court and subject to such terms and conditions including fixation of a reserve price if any, as may be approved by the Court.
(2) All sales shall be made by public auction or by inviting sealed tenders or in such manner as the Judge may direct."
The auction conducted in the instant case was on the terms and conditions as approved by the Court, therefore, the sale is not liable to be set aside, merely on the pretext that the provisions of relevant rules of Order XXI governing the sale through Court auction, were not adhered to. Provisions of Order XXI, Rules 64 to 73 and 89 to 92 CPC have no application in the instant case. The case of Specialty Traders (Supra) can be referred in this context. Official Liquidator with the sanction of the Court has the power, by virtue of Section 333(f) to sell movable and immovable property either through public auction or through a private contract. While conducting the sale through public auction, the terms and conditions for the sale are settled not in terms of Order XXI, Rule 66 CPC but under Rule 237 of the Companies (Court) Rules, 1997.
There is another aspect of the impugned sale. The decree holder with the leave of the Court was declared successful bidder. In the sale where the decree holder participates as a bidder, it is the duty of the Court to ensure that highest bid will be obtained and decree holder's participation will not work disadvantageous to the judgment debtor. The rights of the judgment debtors or of the company (in liquidation) can be protected in such circumstances by fixing a reserve price. The valuation of the assets, subject matter of the sale, was appraised as far back as in the year, 1994. Such appraisal does not depict current position of these assets. Fresh appraisal/evaluation was necessary, specially in the circumstances when decree holder opted to participate in the bid. I am not persuaded to set aside the sale on the basis of the objection of the applicant that provisions of CPC as contained in Rules 64 to 73 of Order XXI were not adhered to in the conduct of impugned sale. The impugned sale, however, at the same time cannot be confirmed/approved in terms of Rule 236 (ibid). Reserved price was necessity in the circumstances to persuade to the creditor to buy the property at a market competeable price. The participation of the decree holder in the auction had worked disadvantageous to the rights of judgment debtors. It is thus in the interest of justice that fresh sale be conducted with a reserve price, on the basis of fresh appraisal/evaluation of the assets. Petitioner will get fresh appraisal of the assets subject matter of sale through auction. Dr. Sarshar Syed, Advocate, Al-Khair Chambers, Ist Floor, 1-Turner Road, Lahore is appointed to make inventory and appraise the value of the assets and thereafter a reserve price shall be fixed for the auction of these assets. His fee will be Rs. 50,000/-. The applicant as well as the petitioner are directed to submit proposed terms of auction within a period of two weeks from today.
The other objections of the applicant raised through this application that Rules 66 & 67 have not been complied with and property is being sold without proper attachment, have no force and are as such rejected.
To come up for further proceedings on 22.5.2006.
(Aziz Ahmad Tarar) Sale set aside
PLJ 2006 Lahore 877
Present: Muhammad Muzammal Khan, J.
KHIZAR HAYAT and another--Petitioners
versus
PAKISTAN RAILWAY through CHAIRMAN and 2 others--Respondents
C.R. No. 2047 of 2004, heard on 24.3.2006.
West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 3--Non-agricultural land kept as site of a town or village--Demarcation of such land kept/used as building site could not have been done under provisions of West Pakistan Land Revenue Act 1967--Reports prepared under terms of West Pakistan Land Revenue Act, 1967, had no sanctity being prepared unauthorizedly--Provisions of O. XXVI, Rr. 9 and 10, which equipped Courts to have site inspection/demarcation under their mandate from some expert Revenue Officer would have to be resorted to for just decision of case and to resolve controversy for all time to come--Findings of two Courts below being based on un-authorized reports prepared in terms of West Pakistan Land Revenue Act 1967, were set aside and case was remanded to District Judge for onward entrustment to Civil Judge for decision afresh in accordance with law within specified period of time. [Pp. 879 & 880] A & B
PLD 1965 Lahore 429; 1982 CLC 1732; 1988 MLD 1596 andPLD 1999 Lahore 31, ref.
Sh. Naveed Shahryar, Advocate for Petitioners.
Mr. Irfan Masood Sheikh, Advocate for Respondents Nos. 1, 2.
Mr. Muhammad Ilyas Khan, Advocate for Respondent No. 3.
Date of hearing : 24.3.2006.
Judgment
This judgment proposes to decide three civil revisions, one in hand and the other C.R. No. 2048/2004 and C.R. No. 2049/2004, as all these raise similar questions of law/facts, require determination of alike dispute and are directed against same set of respondents. All these petitions challenged appellate judgments/decrees dated 7.7.2004 passed by the learned District Judge, Khushab, whereby three appeals of the respondents were accepted and three suits filed by the revision petitions were dismissed reversing judgments/decrees of the trial Court dated 8.11.2003.
Precisely, relevant facts for disposal of these revision petitions are that all the revision petitioners filed three distinct suits for declaration with permanent injunction, averring that they were owners in possession of properties, as claimed in their respective plaints (i.e. Shops Nos. 4239-B/1/1 and 4239-B/1/1 situated in Khasra No. 4981/3211 in C.R. No. 2047/2004, House No. 4239-B/1/A in C.R. No. 2048/2004 and House No. 4235A/RN in C.R. No. 2049/2004, all located within the municipal limits of Khushab) and the respondents had no right, title or interest therein, thus they may be declared owners. Petitioners also prayed, by way of consequential relief that respondents may be restrained through decrees for permanent injunction from interfering in their lawful possession over the shops/houses.
Respondents being defendants in all the three suits, contested the same by filing their written statements, wherein certain preliminary objections regarding lack of jurisdiction of Civil Court and incorrect description of suit properties were raised besides challenging locus standi of the petitioners to file their suits. On merits, respondents pleaded that petitioners have encroached upon the land owned by Railway Department and they have no right to remain in possession thereof. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. Learned Civil Judge, seized of the matters, after doing the needful, decreed all the three suits vide his judgments/decrees dated 8.11.2003.
Respondents being aggrieved of the decision by the trial Court filed three different appeals before the learned District Judge, Khushab, where they succeeded as the same were accepted and by reversing judgments/decrees of the trial Court all the three suits of the petitioners were dismissed with no order as to costs, vide appellate judgments/decrees dated 7.7.2004. Petitioners thereafter filed above noted three revision petitions and respondents in response to notice by this Court appeared and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended with all the three revision petitions. Petitioners had produced voluminous documentary evidence to prove their ownership in Khasra No. 4976/4981/3211 of Khewat No. 1029 vide Jamabandi for the year 1989-90 and report of Naib Tehsildar, Khushab dated 12.6.1983 (Exh. P.4) showing demarcation of suit property on their application. Similarly, respondents had also produced a demarcation report dated 20.3.1995 (Exh. D.6) prepared by Tehsildar, Khushab on application of the respondents. Minute examination of both these demarcation reports revealed that suit property being located within the municipal limits of Khushab was demarcated by two revenue officers under the provisions of West Pakistan Land Revenue Act, 1967, without putting to rest the controversy between the parties, where-under their respective claimed Khasra numbers were undeniably adjacent to each other because none of these reports gave any clear verdict of overlapping of properties allegedly raised by the petitioners through encroachment as per claim of the respondents. Both the Khasra numbers, the one 3211 claimed to be owned by the petitioners and the other 3192 alleged to have been encroached by them, as per assertions of the respondents, are adjacent to each other and are abutting a metalled road as per Shajra Akse produced by the revenue Patwari of the Circle. It is not disputed between the parties that suit properties are no more agricultural land and are building sites, located within the municipal limits of Khushab. Such properties could not have been demarcated by the officials working in revenue hierarchy under West Pakistan Land Revenue Act, 1967, as its Section 3, excluded land kept as site of a town or village from its operation. Language of the provision of law, under discussion, accepts no ambiguity that demarcation of land kept/used as a building site could not have been done under the provisions of Act of 1967, which was subject to their process only for certain restricted physical purposes like recovery of land revenue etc. In forming this view, I have to my credit a chain of judgments including the cases of Ghulam Rasul vs. Ikram Ullah and another (PLD 1965 (W.P.) Lahore 429), Tahir Hanif vs. Member, Board of Revenue and others (1982 CLC 1732), Syed Aslam Shah and 3 others vs. Mst. Sakina and another (1988 MLD 1596) and Pervez Ahmed Khan Burki and 3 others vs. Assistant Commissioner, Lahore Cantt. and 2 others (PLD 1999 Lahore 31).
I feel no hesitation to hold that both the demarcation reports produced by the parties i.e. Exh. P.4 and Exh. D. 6, besides the fact that those do not resolve controversy between the parties, were unauthorizedly prepared by the revenue officers. Report of the local commissioner (Exh. P.4) was prepared as far back as on 12.6.1984 i.e. about nine years earlier to the institution of the suits, which were filed in the year 1993 and report Exh.D.6 was got prepared by the respondents on 20.3.1995, pending suit, and in none of those, their adversaries were associated. Report Exh. P. 4 did recite that notice to Director Land Management Railway Department was issued but it is silent as to whether service of any of the concerned employee was effected because the learned Local Commissioner did not mark presence of any of the respondents on the day of demarcation. Be that as it may, the report prepared nine years earlier to the institution of suit could not be based for settlement of dispute inter parties in a just/fair manner.
From the above resume of facts since both the reports of the local commissioners above discussed, had no legal sanctity, being prepared unauthorizedly, for just decision of the case and to resolve controversy between the parties for all times to come, by resort to provisions of Order XXVI, Rules 9 and 10 CPC, which equipped the Courts below to have site inspection/demarcation under their mandate from some expert revenue official, had to be made but both the Courts below being oblivious of their this jurisdiction, erroneously attempted to decide the dispute relying on illegal reports of the local commissioners. Scan of appellate judgment revealed that no finding with clarity could be given by the learned District Judge with regard to shops Bearing No. 4239-B/1/1-2 and houses were really located in Khasra No. 4988/3211, as there was no such evidence on the file. Learned counsel for the parties especially for the respondents could not satisfy my judicial conscience that dispute can recall be resolved by excluding both the above referred reports of the local commissioners and according to my humble view the only viable way out was to have report under Rule 9 of Order XXVI of CPC, which was neither adverted nor was resorted by any of the two Courts below. Since I intend to remand all the three cases for fresh decision after demarcation under the orders trial Court, I avoided to discuss merits/demerits of the cases of the parties lest the same may not prejudice minds of the Courts below where the cases will again go for determination.
For the reasons noted above, the judgments/decrees dated 8.11.2003 and 7.7.2004 passed by the learned Civil Judge and learned District Judge, Khushab, in all the three suits of the revision petitioners are set aside, being tainted with material illegalities and irregularities and all the three cases are remanded back to the trial Court with a direction to decide all the three suits afresh after having fresh demarcation of both the Khasra numbers of the parties through some senior revenue expert, at the joint expense of the parties to be share by them equally, in accordance with law, on the basis of evidence available on the record. Parties are directed to appear before the learned District Judge, Khushab on 24.4.2006 for onward entrustment and the learned Civil Judge will decide the matters, in terms above narrated, within a period of six months, from the date of taking cognizance thereof. There will be no order as to costs.
(Aziz Ahmad Tarar) Case remanded.
PLJ 2006 Lahore 880
Present: Muhammad Muzammal Khan, J.
AZIZ AHMAD MUGHAL--Petitioner
versus
RENT CONTROLLER etc.--Respondents
W.P. No. 1920 of 2006, decided on 26.4.2006.
(i) West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Ejectment application for bona fide personal need of landlords--Order of deposit of future rent as there was no outstanding rent/arrears before 15th of each succeeding month, assailed by tenants on the ground that Rent Controller had no jurisdiction pass order of deposit of future rent in terms of S. 13(6) of the Ordinance of 1959 while framing issues--Relationship of landlord and tenant having been admitted by tenants no legal impediment stood on power of Rent Controller to undertake both of those exercises together--Even otherwise, no prejudice has been caused to tenant by assumption of both those jurisdiction at one time--Order of future deposit of rent was not illegal as such order had to be passed by Rent Controller during process of all kinds of petitioners filed under S. 13 of the Ordinance of 1959 including bona fide perusal need of landlord. [Pp. 883 & 884] A & B
(ii) West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13--Civil Procedure Code (V of 1908), Ss. 114 & O. XLVII, R. 1--Ordinance VI of 1959--Object, import and Scope of--Ordinance VI of 1959 regulates relationship of landlord and tenant by providing mechanism for ejectment of tenants and to safeguard rights of both of them--Civil Procedure Code 1908 is not applicable to proceedings before Rent Controller who in his discretion can adopt procedure of his choice by applying to proceedings before him equitable principles of general civil law--Impugned orders were not only interim in nature but were also not made appealable by attracting proviso to S. 15 of the Ordinance of 1959--Pending ejectment proceedings, tenant cannot be permitted to suspend those proceedings by initiation of collateral attack, which is prohibited by law governing ejectment proceedings--Constitutional jurisdiction cannot be invoked against such interim order--No prejudice having been caused to petitioner by impugned interim Order, Constitutional jurisdiction cannot be invoked even on that ground--Civil Procedure Code 1908, being not applicable to proceeding before Rent Controller Order of deposit of rent cannot be reviewed in terms of S. 114 and Order XLVII, R. 1 C.P.C.--Rent Controller having committed no error in passing impugned order, Constitutional jurisdiction cannot be invoked against order inquestion. [Pp. 884 & 885] C & D
1996 SCMR 1165, ref.
Ms. Uzma Latif Butt, Advocate for Petitioner.
M/S Ch. Fazal Hussain & Sh. Farooq Hussain, Advocates for Respondents.
Date of hearing : 26.4.2006.
Order
This judgment proposes to decide four Constitutional petitions, one in hand and the others W.P. No. 3273/2006 to 3275/2006, as all these petitions raise similar questions of law/facts and require interpretation of same provisions of law. All these petitions assail orders dated 8.3.2005 and 20.12.2005 passed by the learned Rent Controller, Lahore to be declared illegal, void and of no legal consequence, whereby petitioners/tenants were directed to deposit future rent in terms of Section 13(6) of the Urban Punjab Urban Rent Restriction Ordinance, 1959 and their review petitions were dismissed, respectively.
Precisely, relevant facts are that a commercial building constructed on 29-Commercial Zone, Liberty Market, Gulberg-III, Lahore, was owned by Mst. Saeeda Sheikh, who died in the year 1999. The deceased owner had, in her lifetime, let out different shops to different tenants, who are in possession thereof and are writ petitioners before this Court. Respondents Nos. 2 and 3 claimed themselves to be landlords of the different rented premises with the writ petitioners, which they sought to be vacated for their bona fide personal need in good faith, as according to them, Respondent No. 2 having retired from his service of Pakistan Air Force and Respondent No. 3 being from a traders family, have decided to establish/run a departmental store in the demised premises, by filing four different applications under Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959. Respondents Nos. 2 and 3 did not plead default in payment of rent by any of the writ petitioners and the sole ground for their eviction was that of personal need.
Writ petitioners being respondents in the ejectment petition, contested the same by filing their written replies. Most of them denied ownership of Respondents Nos. 2 and 3 but admitted relationship of landlord/tenants besides urging by some of them, oral agreement of sale by deceased Mst. Saeeda Sheikh. Learned Rent Controller, cognizant of the matters vide his order dated 8.3.2005 directed the writ petitioners to deposit future rent as there was no outstanding rent/arrears before 15 of each succeeding month and on the same day, framed issues arising out of controversial stance of the parties.
Respondents Nos. 2 and 3, in the meanwhile, filed applications complaining violation of order under Section 13(6) of the Rent Restriction Ordinance and prayed for striking of defence of the writ petitioners. On the other side, tenants moved petitions under Section 114 read with Order XLVII Rule 1 CPC for recall of order dated 8.3.2005. Case of the petitioners was that since there was no ground of default in payment of rent in the ejectment petition, order under Section 13(6) of the Ordinance (ibid) was unwarranted. Since order under Section 13(6) of the Ordinance (ibid) stood complied, application filed by Respondents Nos. 2 and 3 was dismissed and the learned Rent Controller declined to review/recall its order under Section 13(6) of the Ordinance (ibid) on the ground that he was legally obliged to pass the same, vide order dated 20.12.2005. Petitioners thereafter, filed instant constitutional petitions with the prayer, noted above. Contesting respondents in response to notice by this Court, appeared and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Submissions of the learned counsel for Aziz Ahmed Mughal (petitioner) that the rent controller had no jurisdiction to pass an order under Section 13(6) of the above referred Ordinance while framing issues arising out of controversial cases set up by the parties, have not impressed me for multiple reasons. First reason being that there is no such clog in sub-section (6) of Section 13 and the other being that relationship of landlord/tenant is not denied by the writ petitioners/tenants. Had the tenants denied the relationship of landlord/tenant, obviously earlier to framing of any issue in this behalf, order for deposit of rent could not have been passed, but where this relationship is admitted, there was no legal impediment on the powers of the Rent Controller to undertake both of these exercises simultaneously. Judgments relied by Ms. Uzma Latif Butt, Advocate, proceed on altogether different facts as in those cases relationship of landlord/tenant was denied. Even otherwise, no prejudice has been caused to the tenant by assumption of both these jurisdictions at one time. Argument of the learned counsel for the other writ petitioners (Mr. Mushtaq Raj, Advocate) that in absence of any ground for eviction of the tenants on the basis of default in payment of monthly rent, there was no necessity to bound down them to pay monthly rent in Court, appeared to be attractive, but minute scrutiny of the provisions under discussion revealed that during the course of proceedings initiated under Section 13 of the said Ordinance, whether those are based on default in payment of rent; bona fide personal requirement of the landlord; subletting of the rented premises or damage/diminishing of value of the rented premises, the Rent Controller is obliged to direct the tenant to deposit all the rent due from him, if he is in arrears and also to deposit monthly rent regularly till final decision of the case before 15th day of each month. This provision of law does not restrict the Rent Controller to pass order of deposit of rent only when there is a ground of default in payment of rent. None of the parties relied on any precedent case law in pro or contra of the proposition and in absence of any Stair Decisis, we have to interpret the law, as it stands. For facility of reference Section 13(6), which is the bone of contest between the parties, is reproduced as below:--
"13 (6) In proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the [fifteenth] day of each month, the monthly rent due from thim. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case. The Controller shall finally determine the amount of rent due from the tenant and direct that the same be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant."
(Underlining is mine, to highlight intent of this provision)
The opening line of the above produced provision of Punjab Urban Rent Restriction Ordinance, left no room to accept submissions of the petitioners that order of deposit was illegal because such order had to be passed by the Rent Controller during the process of all kinds of petitions filed under Section 13 of the Ordinance, including bona fide personal need of the landlord as detailed in its sub-section (2)(vi).
Nonetheless, the Ordinance in hand was promulgated only to regulate relationship of landlord and tenant, by providing mechanism for ejectment of tenants and it safeguards rights of both of them. Civil Procedure Code, 1908 is not applicable to the proceedings before the Rent Controller who in his discretion can adopt procedure of his choice and may apply to the proceedings before him, equitable principles of general civil law. Case if examined with this legal backdrop, in absence of any restriction in Section 13(6) of the Ordinance, to pass order of deposit of rent either of arrears or of future, it was the prerogative of the Rent Controller to direct the tenant to deposit future rent with him and in this manner, as well, petitioners could not make out a case of interference by this Court. To my mind, such an order was necessary not only to place effective curb on the tendency of the tenants to prolong ejectment proceedings or to refuse payment of rent to the landlord, during his initiated proceedings but also to ensure regularization of terms of tenancy.
Above all, impugned orders were not only interim in nature but were also deliberately not made appeal-able by the legislature by attaching proviso to Section 15 of the said Ordinance. It appears to be anomalous that when law maker intended to kept the order under Section 13(6) of the Ordinance passed by the learned Rent Controller, intact till the final decision of the case, by not providing any appeal there against, the same should be allowed to be attacked in constitutional jurisdiction. Case if looked from another angle i.e. on the touchstone of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, writ petitioners have an adequate/alternate remedy of attacking the impugned order at the time of filing of appeal against final order by the Rent Controller, if case goes against them. In other words, pending ejectment proceedings, a tenant cannot be permitted to suspend those proceedings by initiation of collateral attack, which is prohibited by law governing the subject. While forming this view I have to my credit judgment by the Honourable Supreme Court in the case of Syed Saghir Ahmed Naqvi vs. Province of Sindh through Chief Secretary S & GAD, Karachi etc. (1996 SCMR 1165), wherein it was graciously held that Constitutional jurisdiction should not be invoked in supersession of bar created by the statute governing the subject, whereby right to file appeal against interim order, was not provided.
I have yet another reason to abstain from invocation of my Constitutional jurisdiction and that being that no prejudice has been caused to the writ petitioners/tenants, who were not in arrears of rent and no penal action against them has so far been taken in form of striking of their defence. Tenants who had been paying rent directly to their landlords, will now deposit the same with the Rent Controller. During the course of hearing, it revealed that all the writ petitioners are complying with the order of deposit of rent much earlier to the target date fixed thereby. It goes without saying that Ordinance, 1959 is a special law and the Rent Controller is not a Court in the strict sense, to whom restricted powers of summoning of witnesses and compelling production of evidence as a Civil Court were conferred by Section 16 of the Ordinance. Other provisions of Civil Procedure Code, 1908, including those of its Section 114 and Order XLVII were not available for undoing order dated 8.3.2005, in absence of any provision in the Ordinance itself, thus the Rent Controller could not review his order under Section 13(6).
For the reasons noted above, the learned Rent Controller committed no error of law in passing the impugned orders, in absence of which no indulgence can be shown in Constitutional jurisdiction of this Court. Even otherwise, a lawful decision within the ambit of conferred jurisdiction cannot be substituted on this petition, which being devoid of any merit, is dismissed with no order as to costs.
(Aziz Ahmad Tarar) Petition dismissed.
PLJ 2006 Lahore 885
Present: Umar Ata Bandial, J.
Mst. SHER BIBI--Petitioner
versus
GOVERNMENT OF PUNJAB through SECRETARY HIGHWAY, CIVIL SECRETARIAT, LAHORE and 2 others--Respondents
W.P. No. 15004 of 2005, decided on 10.3.2006.
(i) Punjab Civil Servants (Pension) Rules, 1963--
----Rr. 2.7 & 2.12--Constitution of Pakistan (1973), Art. 199--Petitioner's husband served respondents for period of 26 years and thereafter, became incapacitated and died--Petitioner's wife claiming pensionary benefits pertaining to her husband's service--Petitioner's such claim was not accepted by respondent--Petitioner's husband did not attend duty for 10 months or so until his death because he was paralysed--Break in service of petitioner's husband has been attributed to a valid case and therefore, justifiable--Such break in service is, however adjustable against 350 days of accumulated leave entitlement of petitioner's husband which is duly verified by his departmental authority in his service book--Death of petitioner's husband following his indisposition due to paralysis is a fact that is not denied by respondents and cannot be ignored as a verifiable explanation of his absence from duty--Such a cause in thus, both valid and sufficient to justify absence of petitioner's husband from duty for 10 months. [P. 887] A
(ii) Punjab Civil Servants (Pension) Rules, 1963--
----Rr. 2.7 & 2.12--Constitution of Pakistan (1973), Art. 199--Civil Servant--Service of respondent for approximately 26 years--Death of civil servant due to illness--Wife's entitlement to pensionary benefits--Deprivation of petitioner of her lawful entitlement to family pension initially by verbal refusal, then by reliance on relevant grounds in parawise comments, and finally by denial of availability of power of adjustment and/or condonation under Rules reflects arbitraries and prejudice in discharge of public duty on part of respondents--Sufficient material was available on record including beneficial terms of Pension Rules to direct respondents to grant petitioner as widow of deceased Government servant, her entitlement to pensionary benefits in accordance with law within specified period with direction to send compliance report to Deputy Registrar (Legal) of High Court. [P. 888] B
Mr. Mehdi Khan Chohan, Advocate for Petitioner.
Mr. Fawad Malik, A.A.G. for Respondents.
Date of hearing : 10.3.2006.
Order
The petitioner's husband joined service as a work charged Beldar in the Highway Department, Government of the Punjab, on 1.1.1953. He continued to work in the said status until his confirmation as a regular employee on 1.6.1972. The petitioner's husband thereafter served without break until 30.9.1979 when he was incapacitated by paralysis, could not attend his duties and died on 8.8.1980. After her husband's death, the petitioner applied for grant of pensionery benefits but no action thereon was taken by the respondent authorities. In this petition she has prayed for a direction to be issued to respondents to process her application and to grant her a family pension in accordance with law.
Making reference to the parawise comments, the learned AAG has pointed out that the petitioner's husband was admittedly absent from duty without explanation from 1.10.1979 until his death on 8.8.1980. Due to the lack of justifiable cause for his absence from duty, the petitioner's husband is not entitled under the law to receive pension.
On the other hand, the learned counsel for the petitioner has explained that the petitioner's husband did not attend duty for 10 months or so until his death because he was paralyzed. The break in service of the petitioner's husband is attributable to a valid cause and is therefore justified. He states that for purpose of pensionary benefits, such a break in service is otherwise adjustable against 350 days of accumulated leave entitlement of the petitioner's husband which is duly verified by his departmental authority in his service book. Under Rule 2.7 of the Punjab Civil Servants Pension Rules 1963 ("Rules") this period of leave can count as qualifying service for eligibility to pension. He adds that under Rule 2.12 of the Rules, the respondent administrative department also has power to condone the deficiency in service period up to one year for grant of pensionary rights to a retired government servant.
The respondents' parawise comments admit the accumulated leave entitlement of the petitioner's husband to the extent of 350 days which is duly verified by his departmental authority. No reason however is given by the respondents to deny the benefit of sub-rule 2.7 ibid to the petitioner's case. This is damaging to the respondents' stand. It is further noted that as the absence from duty of the petitioner's husband was for a period of less than one year, that also makes him eligible for condonation under rule 2.12 of the Rules. Such relief may be attracted in the present case because during the said period or thereafter the respondent-department did not initiate any departmental action against the petitioner's husband for his absence from duty. Such inaction by the departmental authority indicates that some sort of explanation by or on behalf of petitioner's deceased husband had been rendered to his superiors so that no proceedings were commenced against him. In any event, his death following his indisposition due to paralysis is a fact that is not denied by the respondents and cannot be ignored as a verifiable explanation of his absence from duty. Accordingly, such a cause is both valid and sufficient to justify the absence of the petitioner's husband from duty for 10 months.
Pensionary benefits of a government servant constitute a valuable term of service which in the present case is admittedly available to the petitioner's husband but for his unexplained absence for the period of 10 months prior to his death. The petitioner's husband died twenty-six years ago. His death was reported to the respondents who made entries on 20.8.1984 in his service book to verify his service upto 30.9.1979 for payment of bills. Thereafter the petitioner has been deprived of her right to receive a family pension till date by inaction and verbal refusals of the respondents. In the first instance, the written comments by the respondents rejected the eligibility of the petitioner's husband under the Rules to receive pension because he was not a regular employee for more than 10 years. However, during the hearing, the learned counsel for the petitioner and the learned AAG clarified that by notification the said condition of entitlement did not apply to employees having 20 years of work charged service, which is the case with the petitioner's husband.
Thereupon the respondents reluctantly accepted the entitlement of the petitioner's husband to the aforementioned pensionary benefits but have presently raised the issue of break in his service. Prima-facie this is a matter where relief could be given by respondents by adjusting accumulated leave entitlement against the break in service or by exercising their power of condonation. Rather than doing either, the respondent departmental authority has denied the vesting of such powers to him.
The Court cannot ignore the mind set of the respondents to deprive the petitioner of her lawful entitlement to a family pension; firstly, by verbal refusals that did not disclose any grounds, then by reliance on irrelevant grounds in the parawise comments and finally now by a denial of the availability of the power of adjustment and or condonation under the Rules. Such resistance reflects arbitraries and prejudice in the discharge of public duty.
The Court finds sufficient material in this case as already noticed above, including the beneficial terms of the Pension Rules, to direct the respondents to grant the petitioner, as the widow of a deceased government servant, her entitlement to pensionary benefits in accordance with law. Accordingly, it is further directed that the case of the petitioner's deceased husband for grant of pensionary benefits shall by processed expeditiously in accordance with law for the payment of the rightful pension and other dues to the petitioner within two months of the receipt of a certified copy of this order. The Respondent No. 1 shall ensure compliance and shall report the same to the D.R. (Judicial) of this Court. Petition allowed in the above terms.
(Aziz Ahmad Tarar) Order accordingly
PLJ 2006 Lahore 888
Present: Ali Nawaz Chowhan, J.
WAPDA through CHAIRMAN WAPDA, LAHORE and 2 others--Petitioners
versus
MUHAMMAD FAROOQ and another--Respondents
C.R. No. 2374 of 2000, heard on 13.4.2006.
West Pakistan Water and Power Development Authority Act, 1958 (XXXI of 1958)--
----S. 3--Easements Act (V of 1882), S. 4--Status of WAPDA--Period for maturing of easement right--WAPDA is a statutory body and not a Government Department, therefore, period for maturity of prescriptive right of easement against WAPDA would require 20 years--Plaintiff's prescriptive right to use passage in-question, having been matured, WAPDA had no right to close that passage--If such passage was closed plaintiffs would suffer irreparable loss and hardship while finding access to their homes through that passage which was the only proper access and not other road or way--WAPDA could not produce any revenue record in support of their plea that passage in-question, was not old but was recent--Concurrent findings of tow Courts below on question of fact does not suggest any misreading or non-reading of evidence--Findings of two Court on merits were thus, maintained. [Pp. 894 & 895] A & B
1997 CLC 1936; PLD 1986 Karahci 130; 1997 SCMR 641 and1996 SCMR 336, ref.
Mr. Nazir Ahmad Shami, Barrister for Petitioner.
Mian Sarfraz-ul-Hassan, Advocate for Respondent.
Dates of hearing : 12.4.2006 & 13.4.2006.
Judgment
This judgment will dispose of the following five Civil Revisions: 2374/2000, 2375/2000, 2376/2000, 2377/2000 & 2378/2000. All these involve a common question and impugn the judgment given by the Courts below. The trial Court decided the suits on 16.10.1999 against the petitioners, whereas, the learned Additional District Judge, Gujranwala, dismissed the appeals vide his judgment dated 28.6.2000.
Five civil suits, from which the appeals and present Civil Revisions arise, were filed by different owners of land belonging to village Cagey Wali in Gujranwala. Near their village a Hydle Power Station Nandi Pur and a residential colony for WAPDA's employees were constructed close to Khasra No. 1289 which belonged to them.
It is their case that a Pakka Road located on the south of the residential colony and the Hydle Power Station existed since long and this was being used by them as a passage for the access to their lands. That even after the construction of the Hydle Power Station and the WAPDA's Colony, they continued to use it and for approaching the Sialkot Road, this road was also used by them for approaching the mosque, the Govt. Primary School and the Post Office, located in the WAPDA's Colony. Whereas, the residents of the WAPDA's Colony used the road for purposes of burring their dead as the courtyard was located outside the boundary of the colony.
To re-enforce their arguments, it was said that whereas the colony and Hydle Power Station were enclosed through a barded wire enclosure but a gate provided on the sought since 1966 so that the plaintiffs could use the road for the aforementioned facilities.
The cause of action arose to the respondents when the petitioners closed the gate erected by it towards the south whereby their accessibility through this road was stopped.
According to them, they had acquired easement rights over the passage since over 20 years and their rights of easement be protected.
The suits were consolidated vide orders dated 8.11.1994 and the matter proceeded under the caption "Muhammad Farooq vs. WAPDA".
In their statements, the petitioners denied acquisition of any easement rights and stated that there was an alternate approach to Gujranwala-Sialkot Road and consequently to their Khasra number/village which could be used by the respondents.
On the basis of the pleadings of the parties, the following seven issues were framed:--
(1) Whether defendant had no right to block the main iron gate? OPP
(2) If issue No. 1 is proved in affirmative, whether defendant should be ordered to open the main iron gate? OPP
(3) Whether the defendant should be restrained from blocking the small iron gate and the suit passage? OPP
(4) Whether plaintiff has no cause of action and locus-standi to file the present suit? OPD
(5) Whether the suit is malafide? OPD
(6) Whether suit is hit U/S 56 of the Specific Relief Act? OPD
(7) Whether the plaintiffs are estopped by their words and conduct to file the present suit? OPD
In the first round of litigation, the trial Court had given its judgment on 27.3.1995, against which the appeals were filed before the learned Additional District Judge, Gujranwala, who vide his judgment dated 12.7.1999 decreed the suits in favour of the plaintiffs.
The matter was agitated before this Court invoking its visitorial jurisdiction. On 26.8.1995 cases were remitted to the Court below for framing of Issue No. 7-A which reads as follows:--
(7-A) Whether the plaintiffs have matured their prescriptive right of easement, if yes, its effect? OPP
No further evidence was led before the trial Court who deceased the suits. The matter once more became the subject-matter in appeals before the learned Additional District Judge, who dismissed the appeals.
While adjudicating against Issue No. 7-A, the learned Additional District Judge opined as follows:--
"11. This issue relates to the prescriptive right of easement. The same matures when any right is exercised without any interruption for a period of last 20 years, where the property is not owned by the Government and where the property is owned by the Government, then the aforesaid period is 60 years. Now the question a the first hand arises that whether the disputed passage is owned by the Government or otherwise. The land including the passage was acquired for construction of Hydle Power Station and WAPDA Colony etc. in the year, 1954, under Land Acquisition Act while the award was announced in the year, 1961. So admittedly the title of the disputed passage vested with WAPDA appellants/defendants. WAPDA is controlled by WAPDA Act XXXI of 1958. Section 3 of this Act very much clearly speaks about the nature and kind of WAPDA Authority and according to which the WAPDA Authority has been declared to be corporate body. So it is a statutory body though controlled by Government.
Learned counsel for the appellants vehemently argued that the property of WAPDA is a Government property, so far maturing the perspective right of easement of the appellants 60 years period is required which the respondents/plaintiffs have not uptil completed. So there is no perspective right of easement available to the respondents/plaintiffs. He strenuously relied on WAPDA vs. Administrator District Council, 2000 CLC 40. I am of the humble view that this case law is not helpful to the learned counsel for the appellants because in this case law the entity of WAPDA in the light of Section 3(2) of WAPDA Act XXXI of 1958, has not been discussed and declared that of Government. In the above cited case law the entity of WAPDA has been discused with reference to Article 165 Constitution of Pakistan for exemption from taxation. Although the entity of WAPDA substantially is owned and managed by the Government but due to this fact cannot render as Department of Government. I got support to my opinion from case law Muhammad Bashir Bhatti vs. K.D.A., PLD 1986 Karachi 130 and Shahid Mehmood vs. Karachi Electric Supply Corporation, 1997 CLC 1936 wherein it has been held that where an establishment owned, managed and controlled by Federal Government cannot be treated as a Department of Federal Government, coupled with the fact that entity of WAPDA as a Corporate body is uptil now intact. So from the above said it can easily be construed that WAPDA is not a Government department and the period for maturity of the prescriptive right of easement against WAPDA requires 20 years.
The appellants/defendants produced Dilawar Ali as DW-1, Senior Engineer Mirza Hussain Ali, Resident Engineer DW-2, Badar Munir DW-3, Rashid Ahmad Butt DW-4, Chiragh Din DW-5, Ghulam Hussain Assistant Engineer DW-6 and as a documentary evidence different documents from Ex. D-1 to Ex. D-13. In rebuttal Rana Muhammad Basharat PW-1, Muhammad Ismail PW-2, Akbar Ali PW-3, Farooq one of the respondents as PW-4 and as a documentary evidence Ex. P-1 to Ex. P-12 were produced.
All the witnesses produced by the appellants/defendants tried to rebut the assertions and contentions of the respondents/plaintiffs about the maturing of prescriptive right of easement, while on the other hand the witnesses produced by the respondents/plaintiffs tried to substantiate the fact that the respondents/plaintiffs have got matured the prescriptive right of easement for the disputed passage. During course of trial Rana Muhammad Basharat Advocate PW-1 was appointed as local commissioner by learned trial Judge for ascertaining the following three facts:--
Whether some passage connects the houses of the appellants with Sialkot road other than the disputed passage. If so, where and from which side of the respondents/plaintiffs houses and its distance?
How for is the security gate from the disputed passage?
How long the respondents/plaintiffs have been using the disputed passage?
This witness in compliance to the direction of learned trial Court visited the spot and after making inspection and recording statements of witnesses produced by both the parties submitted his report Ex. P-1 including a site plan. For the first fact he observed in his report that the exists another way and this passage was not already in existence. It came into existence when Sem Nala was dug parallel to Mauza Abdaal to some extent and then it turned to the eastern side of the agricultural land of the appellants and this passage is Kacha unmotorable and situation at a distance of 4« kilometers from the houses of the respondents/plaintiffs, is also inhabited and abandoned while the disputed way is comparatively situated at a distance of only 400 yards and is only suitable passage for the respondents/plaintiffs and other residents of the area. The witness also prepared a site plan and annexed with his report.
For the second fact PW-1 has specifically mentioned in his report Ex. P-1 that actually Hydle Power Station is situated at a distance of 550 yards from the houses of the respondents/plaintiffs and is surrounded by four walls and segrated from other even construction of WAPDA itself i.e. WAPDA Colony etc. and this area can be termed as security area.
For the third fact PW-1 had reported that the respondents/ plaintiffs are using the disputed passage for the last more than 40 years. Even prior to the construction of Hydle Power Station and residential colony this disputed passage was a Kacha road and thereafter it was made into a mettled road by the appellants/ defendants. However this PW also confirmed in Ex. P-1 that there exists a primary school, mosque and post office in the WAPDA Colony which are commonly used by the respondents/plaintiffs and employees of the appellants/defendants. It was also observed that the main gate at Sialkot Road alongwith small gate was installed by the appellants/defendants initially only for the use of respondents/ plaintiffs and inhabitants of the surrounding areas because the alternative passage was not available to the respondents/plaintiffs and other inhabitants for approaching Gujranwala Sialkot Road. Although the witness was cross-examined at length but all in vain. This witness during spot inspection got recorded statements of 6 CWs (commission witnesses) on behalf of the respondents/plaintiffs and 6 CWs on behalf of the appellants/defendants. Not only the CWs appeared on behalf of the respondents/plaintiffs corroborated the contentions of respondents/plaintiffs but also the CWs appeared on behalf of the appellants/defendants had also invariably conceded and admitted the contentions of the respondents/plaintiffs. The report of the local commission was not objected by any party.
From the above narrated evidence of both the parties it is admitted fact that alongwith WAPDA Colony Post Office is situated in that vicinity but that Post Office is not sanctioned by the Post Office Department as WAPDA Post Office but that Post Office has been named and sanctioned as Nizam Pur Post Office and it was also admitted that the respondents/plaintiffs also saying their prayers in the mosque of WAPDA Colony. All the witnesses of appellants did not specifically deny the contentions of the respondents/plaintiffs that the children of the respondents/plaintiffs get education in the school situated in the WAPDA colony. As it has already been stated by me that security risk area has been segrated and separated by Pacca wall from other construction of Hydle Power Station and that it situated at a quite distance from residential WAPDA Colony and even from southern gate from where the respondents/plaintiffs come to the disputed road and then turn towards west for approaching to Gujranwala Sialkot road which is totally opposite in direction to the security risk area. So it means that users of the disputed property have no concern with the security risk area coupled with the fact that from the southern gate the security risk area is situated at a distance of 550 yards while the main gate at Gujranwala Sialkot road is situated at a distance of 400 yards and Hydle Power Station (security risk area) has an independent gate for its entry for security measurements. The respondents/plaintiffs and inhabitants of WAPDA Colony use this disputed passage jointly. They both are also beneficiaries of the utilities of school, Post Office etc. situated at WAPDA Colony and graveyard that is situated out of the boundary wall towards houses of respondents/plaintiffs. No alternative, close and feasible route is available to the respondents/ plaintiffs. It is obvious that the respondents/plaintiffs are using the said passage for more than 20 years and even uptil now for 40 years, continuously without any interruption and as a public route alongwith inhabitants of WAPDA Colony. It is very much pertinent to mention that learned counsel for the appellants has failed to answer the situation with plausible and convincing reason that southern wall in which the gates are installed through which the respondents/plaintiffs approach the disputed way, for what fund gates were installed by the appellants/plaintiffs since the construction and creation of Hydle Power Station and erection of boundary wall because on the other side towards which the house of the respondents/plaintiffs are constructed. The appellants/ defendants have no concern with that vicinity because no relevant machinery or other apparatus and equipment of appellants/ defendants are installed there. So it can candidly be construed that the gates installed in southern wall of the Hydle Power Station were only for the use of respondents/plaintiffs and not for any other purpose and the installation of these gates in the southern wall is sufficient to prove the element of hostility."
Initially before this Court, the learned counsel for the petitioners took the plea that WAPDA's property being a Government property, the period for maturing of the easement right will be 40 years not 20 years. On this question, he was confronted with the following case law:--
(1) PLD 1986 Karachi 130 (Muhammad Rashid Bhatti vs. K.D.A. and another);
(2) 1997 CLC 1936 (Shahid Mehmood vs. Karachi Electric Supply Corporation Ltd.);
(3) 1997 SCMR 641 (M/s. Gadoon Textile Mills & others vs. WAPDA and others); and
(4) 1996 SCMR 336 (Binyameen and others vs. Chaudhry Hakim and another).
In these citations, it is established that statutory bodies like WAPDA are statutory bodies independent in their functions and holders of property in their own names. It is, therefore, an established fact that properties owed by WAPDA are properties belonging to WAPDA and not to the Federal Government.
After these views, the obvious consequence would be that the easement rights in respect of such properties of statutory bodies like WAPDA will mature after 20 years and not 40 years.
Some of the other questions which came up for consideration have already been answered by the appellate Court. These questions inter-alia related to the safety of the property belonging to WAPDA in case the passage was to be used by the residents. This question has been persuasively answered by the learned First Appellate Court in favour of the plaintiffs.
We cannot got into a further factual inquiry in these revision petitions having a concurrent finding.
Any way, when it was stated by the learned counsel for the respondent's side that so far and since the said passage was being used by the respondents, there has been no security mishap. There was nothing stated in rebuttal. It, however, appears that the Hydle Power Station has been enclosed separately and safety measures regarding the same were taken.
According to the learned counsel, if the said passage was closed, the appellants would suffer an irreparable loss and hardship while finding an access to their homes through this passage which was the only proper access and not any other road or way.
The case was fully debated before this Court. There are concurrent findings on facts and upon remand the case had been further reviewed and the verdict given in favour of the respondents/plaintiffs.
WAPDA has not been able to produce any revenue document to support its plea that the passage under reference was not old but was recent and was not reflected in the revenue document.
There are concurrent findings on facts. There is nothing to suggest any misreading or non-reading of the evidence. The matter has been agitated in two rounds of litigation.
Under the circumstances, this Court would feel it proper in upholding the judgments of the Courts below and fining no merits in these civil revisions, dismisses the same. Anyway, there will be no order as to costs.
(Aziz Ahmad Tarar) Revision dismissed.
PLJ 2006 Lahore 896
Present: Muhammad Muzammal Khan, J.
ALI NAWAZ, ADVOCATE, DISTRICT BAR ASSOCIATION, SARGODHA--Petitioner
versus
LAHORE HIGH COURT, LAHORE through its REGISTRAR and 2 others--Respondents
W.P. No. 10240 of 2005, decided on 11.11.2005.
Constitution of Pakistan (1973)--
----Art. 199--Decision/Order of Administrative Committee of High Court, assailed--Constitutional petition--Maintainability--Names of petitioners in the list for appointment of Additional District and Sessions Judges not included--Petitioners seeking direction to respondents to consider their names for appointment as Additional District and Sessions Judges--Art. 199 of the Constitution visualizes that direction can be issued to a "person" performing within territorial jurisdiction of High Court function in connection with affairs of Federation, Province or Local authority but word "person" used in Art. 199(1) of the Constitution does not include High Court including other authorities/institutions mentioned in Art. 199(5) of the Constitution--High Court does not act as persona designata on behalf of Governor of Province rather it acted its own rights to appoint Additional District and Sessions Judges against vacancies occurring under its own control--High Court thus, cannot issued writ/direction against itself--Non-availability of remedy to petitioner for redressel of their grievance cannot confer jurisdiction to issue writ which is specifically excluded by Art. 199(5) of the Constitution, besides binding view of Supreme Court in Muhammad Ikram Chaudhry's case (PLD 1998 SC 103) Petitions were thus, not maintainable. [Pp. 903 & 904] A, B & C
PLD 1999 Lahore 350; PLD 1998 SC 103; PLD 1964 SC 64; PLD 1976 SC 315; PLD 1979 Karachi 524 and PLD 1998 SC 161, ref.
Mr. Muhammad Ahsan Bhoon, Advocate for Petitioner.
Mr. Talat Farooq Sheikh, Advocate for Petitioner in W.P. No. 10485/2005.
Mr. Aamir Iqbal Basharat, Advocate for Petitioners in W.P. No. 10767/2005 and 10769/2005.
Malik Khizar Hayat Khan, Advocate for Petitioner in W.P. No. 10892/2005.
Malik Muhammad Usman, Advocate for Petitioner in W.P. No. 12364/2005.
Kh. Haris Ahmad, Advocate for Petitioner in W.P. No. 12377/2005.
Raja Shafqat Khan Abbasi, Advocate for Petitioner in W.P. No. 13972/2005.
Ch. Muhammad Sadiq, Addl. A.G.
Mr. M. Javed Iqbal Jaffari, Advocate/Amicus Curiae.
Date of hearing : 11.112005.
Order
Instant judgment proposes to decide eight Constitutional petitions, one in hand and the other Writ Petitions Nos. 10485/2005, 10767/2005, 10769/2005, 10892/2005, 12364/2005, 12377/2005 and 13972/2005, as all these involve similar questions of law/facts, require determination/ interpretation of same provisions of law/constitution and are directed against the same set of respondents. All these petitions seek notification dated 1.4.2004 reflecting decision/order of the Administration Committee of this Court, wherein the names of the writ petitioners were not included, to be declared illegal, void and of no legal consequence with a direction to the respondents to consider their names for appointment as Additional District & Sessions Judges.
Succinctly, relevant facts, as deciphered from the above referred petitions, are that in response to an advertisement in daily `Nawa-e-Waqt' Lahore dated 4.4.2003 by the Lahore High Court inviting applications from the Lawyers having ten years standing at the Bar for appointment against 29 seats of Additional District & Sessions Judges, the writ petitioners submitted their respective applications and undertook a written examination, in which they claimed to have qualified. A nominated Examination Committee comprising of three Honourable Senior Judges of this Court, recommended a list of 79 successful candidates who had cleared written examination and eligibility of these candidates was suggested to be assessed on the basis of reports from different intelligence agencies, including police department, concerned District & Sessions Judges and Punjab Bar Council. The Honourable Chief Justice, however, did not agree with the procedure suggested by the Examination Committee and directed interview of the candidates who passed the written examination, leaving the matter of eligibility to the determined by the appointing authority after getting reports needed in this behalf. Ultimately, Examination Committee recommended names of 33 candidates with the observation that in case any one of those was found ineligible the next candidate may be appointed. The appointing authority i.e. Lahore High Court did not find all the writ petitioners suitable for appointment as Additional District & Sessions Judges, coercing them to maintain Constitutional petitions under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973, before the Honourable Supreme Court of Pakistan, which were disposed of on 10.5.2005 through a consolidated judgment with the observation that first of all petitioners may avail remedy before this Court under Article 199 of the Constitution and thereafter, if need be, may approach the Apex Court again, according to law. Petitioners thereafter filed these petitions with the prayer, detailed above.
Learned counsel for the petitioners were required to address arguments, in the first instance, about maintainability of the Constitutional petitions in view of bar contained in Article 199(5) of the Constitution and also about the competence to issue any writ against one's own person, as any of the Judges of this Court while granting/accepting these petitions, will be deemed to have acted against his own Court being a part of the High Court. Consolidated arguments, in this behalf, were addressed by the learned counsel for the petitioners. They submitted that this Court has two different functions to perform namely, judicial and administrative, out of which judicial decisions cannot be attacked by maintaining a petition under Article 199 of the Constitution but actions/orders of some Committee discharging administrative work, can be brought under scrutiny on judicial side of this Court. Learned counsel for the petitioners besides formulating their submissions inline with those raised in the case of Asif Saeed vs. Registrar, Lahore High Court and others (PLD 1999 Lahore 350), also referred to an unreported judgment by a Division Bench of Peshawar High Court jurisdiction dated 9.4.2004 delivered in Writ Petition No. 1412/2001 to contend that a writ was issued against the High Court itself. It was further emphasized that a valuable right had accrued to the writ petitioners after passing of written examination and clearance of interview, thus their deprivation from the appointment would be in violation of principles of natural justice and thus, in their aid, writ prayed has to be issued. It was also asserted on behalf of the petitioners that the High Court acted as persona designata under delegated powers conferred by Governor of Punjab vide SOR 3-2-17/83(P) LHR dated 21.3.1994 thus no judicial act/decision of this Court having been challenged, writ can competently be issued. Case of the petitioners was attempted to be brought under one of the exceptions created by the Honourable Supreme Court to the general proposition that no writ can be issued against High Courts, in the case of Muhammad Ikram Chaudhry and others vs. Federation of Pakistan and others (PLD 1988 S.C. 103). A reference was also made to Punjab Judicial Service Rules, 1994 to submit that all the petitions in hand are maintainable.
Mr. M.J.I. Jaffari, Advocate, rendered support to the stance of the writ petitioners, acting as Amicus Curiae, by asserting that while administrating justice, technicalities should not hamper the same. He further contended that no one is immune from judicial scrutiny by this Court in exercise of jurisdiction vested under Article 199 of the Constitution. It was also urged that this Court in its judicial capacity must examine administrative work done by the appointing authority and that the petitioners cannot be left without any remedy. Reference was also made to the some Quranic verses to do justice, by remaining above board and by ignoring all the self made hindrances.
Learned Additional Advocate General heavily relied on the judgment by Full Bench of this Court in the case of Asif Saeed (supra) and submitted that bar contained in Article 199(5) of the Constitution is absolute. According to him, judgment of Full Bench of this Court being binding on Single Judge of the same Court, cannot be ignored, as all the aspects of the matter raised at the Bar by the petitioners were already scrutinized and decided therein which was never challenged before the Honourable Supreme Court and still holds the field.
I have minutely considered the arguments of the learned counsel for the parties and have examined the record appended herewith. Without entering into merits of all the cases, as observed above, it was elected to first decide their competence/maintainability as those seek issuance of writ by the High Court against itself. It is settled by this time that each Judge of this Court act as High Court and any direction by the Single Judge would amount to its issuance against himself, thus generally speaking this exercise cannot be undertaking if the renowned principle "no one can act as a Judge in his own cause", is acknowledged. Undisputedly, judgment in the case of Muhammad Mohsin Siddiqui vs. Government of West Pakistan (PLD 1974 SC 64) cannot be ignored while embarking upon decision of the controversy, like the one in hand. In this case the Honourable Supreme Court had no doubt interfered in the orders of the Administrative Judge of this Court but the same was quasi judicial nature, returned in exercise of administrative functions, examining removal from judicial service of Mr. Mohsin Siddiqui on the basis of proceedings before the District Judge. Ratio of the judgment was that in case the basic order is void, the superstructure raised there over, would also fall. In this manner, our Apex Court adjudged order of the District Judge and not that of the Administrative Judge of this Court.
On January 16, 1975, Mr. Justice Tufail Ali Abdur Rehman, C.J. of Sindh and Baluchistan High Court died and to fill vacancy caused thereby, the President appointed Mr. Justice Abdul Qadir Sheikh, a judge of the Supreme Court as Chief Justice of the said High Courts. This appointment was challenged by a member of the High Court Bar by filing a writ petition, on the ground that the appointment was violative of Constitutional provisions. The objection was raised regarding the maintainability of the writ petition to the effect that High Court is not a `person' to whom a writ may be issued under Article 199. On the other hand, it was contended by the writ petitioner that a judge should be distinguished from the High Court and that though a writ cannot be issued to a High Court, but the same may be issued to a judge of a High Court as an individual. The matter reached before the Honourable Supreme Court and it was observed that a judge and the High Court are interchangeable terms in our Constitution as is borne out by the provisions of Article 192(1). The lengthy reasons and views of Justice Muhammad Yaqub Ali, the Honourable Chief Justice were as under:--
"That a judge and the High Court are interchangeable terms in our Constitution is borne out by the provisions of Article 192(1). It lays down:
"192(1). A High Court shall consist of a Chief Justice and so many other judges as may be determined by law or, until so determined, as may be fixed by the President. The Article does not say that there shall be a High Court and the President shall appoint a Chief Justice and so many other judges as may be declared by law or until so declared as may be fixed by the President. On the contrary, it says that a High Court shall consist of a Chief Justice and so many other judges as may be determined by law or, until so determined, as may be fixed by the President. There can, therefore, be no High Court without a Chief Justice and the prescribed number of judges.
It is relevant in this connection to bear in mind that totality of the jurisdiction conferred on a High Court by Constitution and law is exercised by the individual group of judges sitting singly or in Benches. In this context each judge is a High Court. That explains why orders, judicial and decrees passed and summons and warrants issued under the direction of a judge are expressed in the name of the High Court and not in the name of the individual judge. One may also refer to Article 201 of the Constitution which lays down that any decision of the High Court shall, to the extent it decides a question of law or is based upon or enumerates a principle of law, is binding on all Courts subordinate to it. The decision rendered by the judge of a High Court thus carries the authority conferred by Constitution and law on the High Court and not the authority of an individual judge. To my mind these provisions of the Constitution bring out clearly that the term High Courts and Supreme Court used in Clause (5) of Article 199 includes judges of these respective Courts.
The policy of law that no writ will issue to a High Court and the Supreme Court is based on sound principles. If one judge of a High Court were to issue a writ to another judge under Article 199, the judge to whom the writ is issued, may in exercise of the same jurisdiction nullify the writ. This is the logical consequence of the fact that High Courts and their individual groups of judges are vested with-co-ordinate jurisdiction.
There is a historical background and practice of British Court also, from which this jurisdiction is borrowed why writs do not lie to judges of superior Courts. Writs of certiorari, mandamus, prohibition, quo warranto and habeas corpus have their origin in the exercise of prerogative powers of the Crown. They are commonly known as prerogative writs. These writs issue to persons who act as the agents and servants of Crown in the exercise of its prerogative powers. The reason being that it is only within the sphere of the prerogative that the Crown can act by orders given to its servants. The following useful discussion appears on this subject in Law Quarterly Review (January 1932), Vol. XVIII, political parties. 26-27:
It is by the application of this principle that we can distinguish between the very different Clauses of persons who, in a large sense, are persons in his Majesty's service. It is clear that when such persons as mayors, justices of the peace, Iord-lieutenants, or sheriffs perform their functions, they are not acting as the agents or servants of the Crown in the exercise of its prerogative powers. They are performing duties cast upon them by common law or statute, and, subject to that law, they have a large measure of discretion in the manner in which they perform their duties. The performance of their duties is not dependent upon the orders of the Crown, for, in respect of many of their functions, the matters falling within their competence are matters which it is not within the power or the prerogative to control. It is true, as Maitland pointed out in his Constitutional History, that at the present day many of the Ministers of the Crown have large powers conferred upon them by statute, and that in exercise of these powers they are not acting as the agents of the Crown in the exercise of its prerogative powers. It is true that when acting in the exercise of these statutory powers their position is analogous to those servants of the crown who do not act as its agents in the exercise of its prerogative powers. But these powers are given to them because they hold for the time being the position of the principal agents through whom the Crown exercises its prerogative powers. The addition of these powers, therefore, does not make them any-the-less `person in His Majesty's service.
It will thus appear that the test whether or not a person is a person in His Majesty's service in the strict sense, or in a loose or general sense, does not depend upon the question whether or not the person is paid by the Crown; the justices of the peace are unpaid; but if a Secretary of State agreed to serve without a salary he would be nonetheless a person in the service of the Crown. Nor does it depend upon the question whether the person is appointed and can be dismissed by the Crown; but that does not make them persons who act as the agents of the Crown in the exercise of its prerogative powers. Now, if this test be applied to the judges of the Supreme Court of judicature, it is quite obvious that they are not persons in His Majesty's service, nor are their offices in the service of His Majesty. From the very beginning of our legal history they have acted as the interpreters of the law, and as the arbitrators, not only as between subject and subject, but as between king and subject. So far are they from being the agents of the Crown in the exercise of its prerogative powers, that one of their principal functions to adjudicate upon the legality of the exercise of these powers.
In consonance with this historical background, judges of the Supreme Court and High Court as were, in the 1956 Constitution, excluded from the definition of `service of Pakistan'. In the Constitution of 1962, a departure was made and the judges of superior Courts were not specifically excluded and this pattern has been followed in the 1973 Constitution. This, however, does not affect the legal status of judges. So long as judges of Superior Courts act as interpreters of law and Constitution and decide disputes not only between citizen and citizen, but also between citizens and the State and exercise the power to strike down actions of the state as without lawful authority, they do not fall in the category of agents and servants of the state to whom writs may be issued under Article 199. In my view, Clause (5) of Article 199 is enacted to achieve this object. These findings were graciously returned in the case of Abrar Hassan vs. Government of Pakistan (PLD 1976 SC 315)."
"It may be noticed in the present case, that the petitioner does not allege that Mr. Justice Anwarul Haq is not qualified to be a judge of the Supreme Court to hold High Court Office of Chief Justice of Pakistan. The petition quite clearly challenges the act of my Lord the Chief Justice as Chief Justice in constituting the Bench of the Supreme Court which decided Criminal Appeal No. 11 of 1978 and the judgment given by my Lord the Chief Justice in the said Appeal. In other words, what is being challenged is action of my Lord the Chief Justice as a Court and not as a judge in his individual capacity. In this view of the matter aforesaid decision of the Supreme Court with which we are in any even bound, clearly leads to the conclusion that this petition is not maintainable."
"(5) In this Article, unless the context otherwise requires,--
"person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan; and
(a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and
(b) in any other case, the advocate-General for the Province in which the application is made."
Unambiguous language of Article 199(5) of the Constitution was examined by a Full Bench of this Court in the case of Asif Saeed (supra) paragraphs 16 and 17 of which read as under:--
"16. To our mind the judicial orders of the Supreme Court and the High Court on jurisprudential plane, were already protected from the exercise of writ. It is only the administrative/executive or consultative functions/orders and acts which in fact have been saved under this sub-Article. By plain reading of sub-Article (5) and by applying settled rules of interpretation, High Court cannot be deemed to be conferred with two distinct characters i.e. one judicial, which is immune from writ, and the other administrative which is amenable to the writ.
The Honourable Full Bench concluded in the cited judgment that all the actions, acts and order made by the High Court or the Supreme Court, in exercise of powers and functions in the office cannot be subjected to writ because such orders passed are always of the High Court and not by a Judge having character different than a High Court.
The Honourable Supreme Court in the case of Muhammad Ikram Chaudhry (supra) after scanning entire case law graciously mandated that a High Court or the Supreme Court cannot in exercise of its Constitutional jurisdiction under Article 199 of the Constitution interfere with an order passed by another Judge or another Bench of the same Court and alike view was pronounced in the case of Malik Asad Ali and others vs. Federation of Pakistan through Secretary, Law, Justice and Preliminary Affairs, Islamabad and others (PLD 1998 S.C. 161).
Analysis of the judgments above referred including those of the Honourable Supreme Court and Full Bench of this Court bring me to hold that this Court did not act as persona designata on behalf of the Governor of the Punjab rather it acted in its own rights to appoint Additional District & Sessions Judges against the vacancies occurring under its control, hence cases of the petitioners do not fall within any of the exceptions pointed out in the case of Muhammad Ikram Chaudhry (supra). In this behalf, reference to Notification No. 44/RHC/AD & SJJ dated 1st April, 2004, is not only apt but also puts the controversy to naught, as its opening lines read as under:--
"In exercise of the powers conferred by Rule 4 of the Punjab Judicial Service Rules 1994, the Chief Justice and Judges are pleased to appoint the following Additional District & Sessions Judges (BS-19) in Punjab with effect from the dates they resume charge of the posts on the terms and conditions given in subsequent paragraphs."
(Underlining is mine to highlight the appointing authority).
Non-availability of remedy to the petitioners for redressal of their grievance cannot confer jurisdiction to issue a writ which is specifically excluded by virtue of Article 199(5) of the Constitution, as discussed above, besides the binding view of the Honourable Supreme Court in the case of Muhammad Ikram Chaudhry (supra). It goes without saying that I feel myself unable to undo the above discussed judgments of the Honourable Supreme Court and the one given by a Full Bench of this Court by jumping Constitutional provisions, of which I am under oath and thus respectfully following the rule of law propounded therein, hold that all the petitions above referred are not maintainable.
(Aziz Ahmad Tarar) Petition dismissed.
PLJ 2006 Lahore 905
Present: Ch. Ijaz Ahmad, J.
MASOOD PERVEZ SAJID--Petitioner
versus
Mst. NAWASIH FATIMA & 2 others--Respondents
W.P. No. 8012 of 2004, decided on 17.12.2004.
(i) West Pakistan Family Court Rules, 1965--
----R. 6--Question of territorial jurisdiction--Preliminary objection as to the lack of territorial jurisdiction in a case of maintenance in written statement on the basis of Rule 6--Petitioner was not agitated the ground in the memorandum of appeal--Petitioner was not within his right to raise such objection in the consents of writ petition on the principle that parties were bound by their pleadings. [P. 908] A
(ii) Constitution of Pakistan, 1973--
----Art. 199--West Pakistan Family Courts Rules, 1965, R. 6--Scope of--Held : As to the rates maintenance allowed by the Courts below, cannot be agitated in High Court in Constitutional jurisdiction--Concurrent findings of two Courts below granted the relief on the claim of the respondent based on evidence are findings of facts, which could not be challenged in Constitutional jurisdiction--High Court has no jurisdiction to substitute its own findings in place of findings of tribunals below while exercising powers under Article 199 of the Constitution of 1973--Petition dismissed. [P. 909] B & C
(iii) Interpretation of Rule--
----Applicability of CPC & Qanoon-e-Shahadat Order in family matters--Provisions of CPC & Qanoon-e-Shahadat Order, 1984 in the family matters are not applicable in sticto-Senso--Documentary evidence duly supported the stand of respondent--Petitioner did not produced any oral or document evidence to discard the stand of the respondent--Man can tell a lie but documents cannot--Petition dismissed. [P. 910] D & E
Mr. Atir Mehmood, Advocate for Petitioner.
Mr. Shah Muhammad, Advocate for Respondents.
Date of hearing : 17.12.2004.
Order
The brief facts out of which present writ petition arises are that petitioner and Respondent No. 1 solemnized marriage according to the injunction of Islam in the year 1993. Subsequently, the relationship of the spouses became strained. The respondent filed a suit for maintenance alongwith maternity expenses in the Court of Judge Family Court, Jhang on 29.11.2001. The contents of plaint reveal that the behaviour of the petitioner with respondent was very cruel since beginning of the marriage as he used to give severe physical beating to the respondent. Resultantly, the petitioner kicked the respondent out of his house after giving severe beating and snatching ornaments/garments from her. The contents of plaint further reveal that at the time of desertion, she was pregnant for two months and thereafter she gave birth to a child through operation in the Fatima Memorial Hospital and due to such complications, the child was kept in I.C.U. of the said Hospital for two months and later on, he died. The contents of plaint further reveal that due to mental psychological effect, the delivery took place after seven months of conception. The petitioner had divorced her on 30.1.2001 and solemnized second marriage, therefore, the respondent has filed aforesaid suit to get expenses of maternity and also maintenance till the period of Iddat from the petitioner-defendant. The income of the petitioner-defendant is Rs. 25,000/- Rs. 30,000/- per month, therefore, the respondent (wife) is entitled to get total Rs. 2,09,224/- including he expense of maternity and other maintenance till the period of Iddat.
(i) No cause of action accrued to the respondent-plaintiff to file said suit.
(ii) The respondent-plaintiff is estopped by her act and conduct to file the suit.
(iii) The conduct of the respondent-plaintiff remained objectionable.
(iv) The respondent-plaintiff remained admitted in the Fatima Memorial Hospital, Lahore and a child was born through operation, but all the expenses were borne by the petitioner-defendant (husband).
(v) The petitioner has also admitted that he has divorced the respondent-plaintiff and had solemnized second marriage.
Out of pleadings of the parties, the following issues were framed by the learned trial Court:--
Issues
(1) Whether the plaintiff is entitled for the decree of maintenance allowance and expenses incurred by her on medical treatment, if so, on what ground? OPP
(2) Whether the plaintiff is not entitled to file this suit? OPD
(3) Whether plaintiff is estopped by her words & conduct? OPD
(4) Whether the suit is based on malafide and has been filed just to harass the defendant? OPD
(5) Relief.
The learned trial Court decreed the suit vide impugned judgment and decree dated 5.7.2003 amounting to Rs. 1,79,224/- alongwith costs of the suit. The petitioner-defendant being aggrieved filed an appeal before the learned Addl: District Judge, Jhang, who dismissed the same vide judgment and decree dated 24.2.2004, hence, the present writ petition.
The Court shall have jurisdiction to try a suit within territorial local limits in the following effect:--
(1) Cause of action in wholly or in part has arisen or
(2) Where parties resided or last resided together, (3) Provided that in suit for dissolution of marriage and divorced within local limit for which the wife ordinary resides she also has jurisdiction.
He further submits that the respondent-plaintiff is not even ordinary residing in local limit of Judge Family Court at Jhang, therefore, the assumption of jurisdiction by Judge Family Court at Jhang is without lawful authority. He further submits that the first appellate Court did not consider this fact, therefore, the judgment of both the Courts below are without lawful authority. He further submits that Respondent No. 1 in her statement has stated that she (wife) had given expenses of maternity qua the delivery of her child to her sister-in-law (Bhabi). She did not produce her sister-in-law in the witness-box, meaning thereby, she has with-held best evidence, therefore, both the Courts below erred in law to accept the oral as well as documentary evidence of the respondent-plaintiff. In support of his contention, he relied upon "Muhammad Luoman vs. Bashir Ahmad" (PLD 1994 Karachi 492). He further submits that both the Courts below have mis-read the evidence on record by fixation of maintenance without determining the income of the petitioner. The income of the petitioner is Rs. 6,000/- per month; whereas maintenance has been fixed at Rs. 1,000/- per month in spite of the fact that Respondent No. 1 did not produce single witness to prove the income of the petitioner. He further submits that the documents relied by the Courts below were not proved in accordance with law and Respondent No. 1 has withheld best evidence and case was decided against the petitioner by Judge Family Court by misreading and non-reading of the record on the basis of evidence produced by Respondent No. 1. The witnesses produced by Respondent No. 1, are interested witnesses, but this fact was not considered by both the Courts below. He summed-up his arguments that the documentary evidence produced by Respondent No. 1 was not proved on record in accordance with law, therefore, judgments of both the Courts below are the result of mis-reading and non-reading of the record.
The learned counsel of respondent submits that both the Courts below have given concurrent findings of facts against the petitioner after proper appreciation of evidence, therefore, the Constitutional petition is not maintainable. He further submits that this Court has no jurisdiction to substitute its own findings in place of findings of Court below, while exercising powers under Article 199 of the Constitution. He further submits that the petitioner has not raised preliminary objection qua assumption of territorial jurisdiction by the Judge Family Court at Jhang on the ground of territorial jurisdiction in view of Rule 6 of West Pakistan Family Court Rules, 1965.
I have given my anxious consideration to the contentions of learned counsel of the parties and perused the record.
It is pertinent to mention here that the petitioner has not raised preliminary objection in the written statement on the basis of Rule 6 of West Pakistan Family Court Rules, 1965 and also did not agitate this ground in the memorandum of grounds of appeal, therefore, the petitioner is not within his right to raise this objection in the contents of writ petition on the well known principle that the parties are bound by their pleadings as per law laid down by the Honourable Supreme Court in "Mst. Murad Begum, etc. vs. Muhammad Rafique & others" (PLD 1974 S.C. 322). It is settled principle of law that objection about the lack of jurisdiction of Court or tribunal should be first raises before first appellate Court or tribunal seized with the matter. In case, objection has not been raised at proper time, then it cannot be made basis of invocation of exercising of writ jurisdiction. In arriving to this conclusion, I am fortified by "Nawab Din, etc. vs. Muhammad Salim Aamer, etc." (NLR 1995 U.C. 168). It is admitted fact that the petitioner-defendant did not raise any objection about the jurisdiction to hear the case or about the maintainability of the suit, therefore, now it does not lie in his mouth to say that Judge Family Court, Jhang had no authority at all to hear and decide the case. The question of law raised with regard to territorial jurisdiction, has finally been decided by the Honourable Supreme Court in "Javaid Akhtar's case" (1988 SCMR 1751).
In view of the aforesaid circumstances, the contention of the learned counsel of the petitioner that assumption of jurisdiction in view of Rule 6 of West Pakistan Family Court Rules, 1965 has no force. In my opinion the question as to the rates at which maintenance was allowed by the Courts below, cannot be agitated in this Court in Constitutional petition. The rates at which maintenance have been allowed, were fixed by the two Courts below, after taking into consideration the evidence produced by both sides that concurrent findings of facts, thus rates reached by the said Courts of competent jurisdiction, cannot be challenged by invoking the Constitutional jurisdiction of this Court on the plea that the rates of maintenance so fixed are excessive as per law laid down by the Honourable Supreme Court in "Fazal Khitab vs. Mst. Naheed Akhtar and another" (PLD 1979 S.C. 864). The relevant ratio of that cases is as follows:--
"That matters of controversy are concluded by findings of facts reached by the Family Courts, which are well supported by the evidence on record and such findings do not call for any interference either by the High Court in its writ jurisdiction or by filing of petition by civil petition for leave to appeal before the Honourable Supreme Court."
The aforesaid view was also taken by the Honourable Supreme Court in "Syed Muhammad Mashooq's case" (1984 S.C.M.R. 1138). It was held that current findings of two Courts below granting the relief on the claim of the respondent based on evidence are findings of facts, which could not be challenged in Constitutional jurisdiction. The aforesaid preposition of law is supported by the following judgments:--
"Muhammad Sharif's case" (2000 MLD 2030).
"Sohail Muhammad's case" (1998 MLD 182).
"Rukhsana Tobassum's case" (1999 CLC 878).
"Ehsan-ul-Haq's case" (1991 SCMR 362).
"Dawood Abdul Khaliq's case" (2000 CLC 1823).
It is settled principle of law that where Courts possess the jurisdiction, findings recorded by the tribunals below would not disturb simply on the ground that another issue was possible on same evidence. This Court has no jurisdiction to substitute its own findings in place of findings of tribunals below while exercising powers under Article 199 of the Constitution, as per law laid down by D.B. of this Court in "Mussadaq's case" (1973 Lahore 600). Coupled with the facts that both the Courts below have given its concurrent findings of facts against the petitioner after proper appreciation of evidence, therefore, the Constitutional petition is not maintainable as per law laid down by the Honourable Supreme Court in the following judgments:--
"Khuda Bakhsh vs. Muhammad Sharif and others" (1974 S.C.M.R. 279).
"Muhammad Sharif etc. vs. Muhammad Afzal, etc." (PLD 1981 SC 246).
"Abdul Rehman Bajwa vs. Sultan Ahmad, etc." (PLD 1981 SC 522).
It is pertinent to mention here that the provisions of CPC and Qanoon-e-Shahadat Order, 1984 in the family matter, are not applicable in sticto-senso. The documentary evidence was duly supported the stand of the respondent-plaintiff. The documents were also proved by producing of Sarfraz Khan PW-2 and Doctor Masood Akhtar PW-3 apart from herself. The petitioner-defendant did not produce any oral as well as documentary evidence to discard the stand of the respondent-plaintiff. It is settled principle of law that man can tell a lie, but documents cannot. Both the Courts below have given concurrent findings of facts, coupled with the facts that petitioner has admitted in written statement that he had divorced Respondent No. 1 (wife) and had solemnized the second marriage. The birth of child was also not denied by the petitioner in his written statement. The learned counsel of the petitioner failed to point out any piece of evidence, which was non-read and mis-read by both the Courts below, therefore, I am not inclined to interfere in the concurrent findings of the facts of the Courts below, which have been given after proper appreciation of evidence on record.
In view of what has been discussed above, I do not find any force in this Constitutional petition; therefore, the same is dismissed with nor order as to costs.
(Hina Anwar) Petition dismissed.
PLJ 2006 Lahore 910
Present: Mian Saqib Nisar, J.
MIAN MUHAMMAD AMIN and another--Petitioners
versus
Mst. KHURSHEED BEGUM alias NASEEM BEGUM (deceased) through her LEGAL HEIRS and others--Respondents
C.R. No. 575 of 1999, decided on 14.3.2006.
(i) Specific Relief Act, 1877 (I of 1877)--
----S. 42--Civil Procedure Code (V of 1908), S. 115--Suit for declaration--Possession admittedly was not with plaintiff--Plaintiff even did not seek possession in terms of proviso to S. 42, Specific Relief Act--Plaintiff deliberately omitted to produce Revenue record to establish either her physical or possession through tenants--No proof of payment of land revenue was produced by plaintiff--Defendants have tendered in evidence entire revenue record pertaining to land in-question which proves that sale-deed in favour of defendants had been given due effect and they have been recorded as owners in possession of land in-question--Plaintiff's suit for declaration of title was thus, not competent in as much as neither she was in possession of land nor she had sought possession thereof in terms of proviso to S. 42, Specific Relief Act. [Pp. 915, 916, 918 & 919] A, B & E
(ii) Specific Relief Act, 1877 (I of 1877)--
----S. 42--Plaintiff's claim of fraud in sale transaction--Initial onus was on plaintiff to prove fraud and non-payment of consideration--No evidence in proof of such proposition was produced by plaintiff--Even if beneficiary of document was required to prove valid execution for consideration defendants have led ample evidence to establish/prove sale transaction including registered sale transaction to sell as also sale-deed and "tamleeknama" and thus have proved their title through best evidence available to them. [P. 917] C & D
(iii) Specific Relief Act, 1877 (I of 1877)--
----S. 42--Qanun-e-Shahadat Order, (10 of 1984), Art. 129--Withholding of best evidence by plaintiff--Effect--Plaintiff in her suit for declaration of title failed to appear personally in Court--Presumption could rightly be drawn against plaintiff was withholding best evidence. [P. 919] F
(iv) Specific Relief Act, 1877 (I of 1877)--
----S. 42--Civil Procedure Code (V of 1908), S. 115--Transaction of sale--Validity--Evidence on record amply proved that sale-deed in favour of defendants was not result of fraud and misrepresentation, rather the same was genuine transaction for due consideration--Findings of Court of appeal decreeing plaintiffs suit was thus, set aside while that of trial Court dismissing plaintiff's suit was maintained. [P. 919] G
(v) Parda Nashin Lady--
----Transaction of sale by plaintiff in favour of defendant--Plea of plaintiff being "pardanashin lady" was although taken in plaint yet the same was not proved in evidence--Plaintiff had been identified by her husband with whom she has been living through out--Plaintiff's husband was the best person to advise and identify plaintiff at all levels and stages and no fraud has been proved against him--Even if plaintiff was "pardanashin" yet she had independent advise of her husband, therefore, transaction in question could not be declared void on that account. [Pp. 919 & 920] H
(vi) Specific Relief Act, 1877 (I of 1877)--
----Ss. 42 & 39--Limitation Act (IX of 1908), Arts, 91, 120 & S. 18--Civil Procedure Code (V of 1908), S. 115--Suit for declaration to title filed after more than 12 years of sale transaction--Suit for declaration being composite under Sections 42 and 39 of Specific Relief Act 1877, Art. 91 of Limitation would be applicable for which limitation prescribed is three years--However, if suit was considered to be mainly for declaration and relief of cancellation of document as ancillary or incidental thereto, Art. 120, Limitation Act 1908; would be applicable under which limitation is six years from date when right to sue accrues--Right to sue accrued to plaintiff on 10.4.1973 when sale-deed was executed/registered, therefore suit brought after more than 12 years was out of limitation--Plea to attain benefit of S. 18, Limitation Act, 1908 was however, not taken--Plaintiffs suit was thus, barred by limitation--Judgment and decree of trial Court dismissing plaintiff's suit was maintained, while that of Appellate Court decreeing plaintiff's suit was set aside. [Pp. 920 & 921] I & J
PLD 1972 SC 25; PLD 2003 SC 594; PLD 1995 Karachi 388; 2004 MLD 341; PLD 1988 Karachi 460; PLD 1997 Lahore 153; PLD 1976 SC 767; 2002 CLC 1956; 1987 SCMR 1647; 1996 SCMR 137; PLD 1979 SC 890; PLD 1976 SC 761; 2002 SCMR 235; PLD 1977 SC 109; AIR 1937 PC 152; 2002 SCMR 1317; 1994 SCMR 1937; 2002 CLC 909, ref.
Mr. Aamar Raza A. Khan, Advocate for Petitioner.
Mr. Muhammad Ahmad Qayyum, Advocate for Respondents.
Date of hearing : 14.3.2006.
Judgment
Suit for the declaration filed by the predecessor-in-interest of Respondents Nos. 1-A to 1-C, seeking the declaration of being the owner in possession of the suit property measuring 844 Kanals and 17 Marlas situated in Mauza Dab Kalan, Shorkot, (described in more detail in the plaint) and also challenging the sale of the said land through the registered sale-deed dated 10.4.1973 (Ex. D-5), in favour of the petitioners, was dismissed by the learned trial Court vide judgment and decree dated 24.10.1992. But respondent/plaintiff's appeal has been accepted vide judgment and decree dated 17.4.1999 and the suit has been decreed by setting aside the judgment and the decree of the learned trial Court; hence this revision.
Briefly stated the facts of the case are that on 21.7.1985, Mst. Kurshid Begum, the predecessor-in-interest of Respondents Nos. 1-A to 1-C brought a suit for the declaration against the petitioners as also respondent No. 3, her husband, stating in the plaint that on account of the estate left by her deceased father, she inherited the suit property; on account of the education of her children, most of the time, she was residing at Lahore, but the suit property remained in her possession brought tenants. It is alleged that a month before the institution of the suit, petitioners/defendants attempted to illegally take the share of the produce from the tenants, upon which, the plaintiff got examined the revenue record, when it transpired that the petitioners in collusion with her husband/defendant No. 3, have prepared the disputed sale-deed dated 10.4.1973 (Ex. D-5), therefore, she challenged the transaction and the sale instrument, on the basis of the fraud, misrepresentation in the execution and registration of the sale-deed dated 10.4.1973; she also sought the declaration of being the owner in possessions of the suit property, her reasons of challenge to the deed are highlighted in Paragraphs Nos. 6 and 7 of the plaint, which broadly are that the plaintiff is a pardanashin lady; the transaction is the result of fraud committed by the petitioners, in collusion with her husband and his manager namely Abbas Hussain Jaffari, she never appeared before the Sub registrar; never thumb marked the sale-deed or any other agreement; the entire transaction was kept secret from her, which she discovered recently; that the transaction is hit by the MLR 64/115.
Respondent No. 3 her husband, despite service did not appear and has been proceeded ex-parte; whereas the present petitioners contested the matter and in their written statement, they have explained, how the final transaction was arrived at, as the plaintiff earlier had agreed to sell to them the suit land in two parts, firstly she agree for the sale of the land measuring 586 Kanals and 12 Marlas for a total consideration of Rs. 2,10,000/- and had executed the registered agreement to sell dated 1.3.1973, in favour of the vendees/defendants; she at that time, received an amount of Rs. 1,50,000/- as a part of the consideration, before the local commission appointed by the Sub Registrar for the purpose of registration of the above agreement, while the balance amount was payable at the time of the registration of the sale-deed for which the parties had agreed 28.3.1973 as the target date; thereafter, the plaintiff had further agreed to sell the land measuring 258 Kanals and 5 Marlas in favour of the defendants for an amount of Rs. 92,456/- and another agreement dated 21.3.1973, was executed; out of the consideration amount, Rs. 72,000/- was received by the plaintiff, whereas, the balance amount of Rs. 20,456/- was to be paid to her at the time of the registration of the sale-deed and she subsequently, received the total consideration and thus executed the sale-deed for whole of the suit land measuring 844 Kanals and 17 Marlas within the extended period, as agreed between the parties through Ex. D-4. The petitioners/defendants denied of any collusion between them and the plaintiff's husband or any element of fraud, etc in achieving the transaction, and/or any violation of MLR. Out of the pleadings of the parties, learned Civil Judge framed the following important issues:--
Whether the suit is within time ? OPP
Whether the plaintiff is estopped by her act a and conduct from filing this suit? OPD
Whether the sale-deed registered dated 10.4.1973 deed No. 381 is illegal, against facts, based on fraud, forged, collusive, void, without consideration and ineffective against the rights of the plaintiff.
Whether the plaintiff is owner in possession of the land in dispute ? OPP
The plaintiff Mst. Khurshid Begum, examined one Rustam PW-1, who is her cousin and deposed that no sale was made by her in favour of the petitioners. PW-2, Salehon has also deposed to the same effect; PW-3 is Khadim Hussain, who has appeared as an attorney of the plaintiff on the strength of power of attorney dated 6.2.1988 and his statement was recorded by the trial Court on 29.3.1988; besides the oral evidence, four documents were tendered in evidence by the respondents/plaintiff i.e. power of attorney Ex. P-1; Mutation No. 486 pertaining to some other land Ex. P-2; two Jamabandi for the year 1973-74 and 1969-70 Ex. P-3 and Ex. P-4 respectively.
As against the above, the petitioners examined ten witnesses, the important are DW-2 Muhammad Iqbal, Senior Clerk Naib Zarri Engineer, who stated that two tube-wells were got installed by the petitioners at the site. Muhammad Jamil Hashmi (DW-3), is the official from the Registration Office, who has deposed about the registration of the sale-deed Nos. 381 and 382. DW-4, Haji Muhammad Islam Patwari, stated about the possession of the petitioners over he suit property since the time of the sale-deed and the mutation; Bashir Ahmad (DW-6) is the scribe of the agreements to sell Ex. D-1 to Ex. D-5, which includes the extension of the agreement and the impugned sale-deed. Noor Muhammad, Advocate, was examined as DW-7, he is the local commission, who was appointed by the Sub Registrar for the purpose of the completion of the formalities for the registration of the documents/agreements. Faiz Bakhsh, (DW-8) is the marginal witness of Ex. D-2 to Ex. D-5, whereas, the other marginal witnesses of Ex. D-5 namely Ghulam Sarwar and Abbas Hussain Jaffari, had died by that time. DW-9 is Muhammad Amin, one of the petitioners/defendants and DW-10 is Ashiq Hussain, who at the relevant time asserts to be the "Kardar" of the plaintiff. Besides the above oral evidence, the important documents adduced by the petitioners are Ex. D-1, the Tamleeqnama made by the plaintiff in favour of his son namely Fazal Abbas Haider; this transaction was purportedly made to avoid the violation of the MLRs; Ex. D-2 to Ex. D-3 are the agreements to sell executed between the petitioners and the plaintiff, which are prior to the sale-deed; Ex. D-4 is the agreement about the extension of time and Ex. D-5 is the sale-deed. Ex. D-14 and Ex. D-16 are the three judgments in the suits filed by a third party Ghulam Abbas, against the petitioners, challenging the above sale through the pre-emption cause Ex. D-17 is the ex-parte decree, which was passed in a suit filed by the plaintiff lady against her son Fazal Abbas Haider Shah, challenging the Tamleeqnama Ex. D-1, which was allowed and the decree was passed by setting aside the said documents; Ex. D-20, is the mutation of sale in favour of the petitioners. whereas Ex. D-21 is the judgment in the declaratory suit filed by Muhammad Nawaz, etc, regarding the portion of the suit land; Ex. D-22 to Ex. D-24 are the jamabandi for the year 1970-171, 1973-1974, 1977-1978, 1985-1986 and Ex.D-25 is the Girdawari for the years 1985 to 1990.
As mentioned earlier, the suit of the plaintiff/respondent was dismissed by the learned trial Court, vide judgment and decree dated 24.10.1992, but on her appeal which was allowed on 17.4.1999, this judgment and decree has been set aside. Hence this revision.
For the purpose of brevity, the pleas raised by the learned counsel for the parties, are not being distinctly and specifically recorded; but the arguments shall duty reflect in the course of discussion made in this decision.
First of all, I shall dilate upon Issues Nos. 3, 8 and 9; as these issues are inter-linked and thus should be decided together. According to the clear averments made in the plaint, the plaintiff claims to be the owner in possession of the suit property; she has challenged the sale-deed Ex. D-5 in favour of the petitioners, primarily on the ground of fraud between the petitioners, her husband and Abbas Hussain Jhafari, the Manager of her husband. But through her evidence, she has badly failed to prove her possession over the suit property; only oral, unsubstantiated and uncorroborated statements have been made by PW-1, who is her cousin; PW-2 her tenant in the same mouza, but not the cultivator of the suit land and PW-3 her attorney in this behalf. These witnesses have made very brief and sketchy depositions about the plaintiff's possession. For example, PW-1, in the examination-in-chief stated that:--
PW-2 deposed that:--
PW-3 her attorney stated:--
From the above, it is clear that no details or the particulars about the possession have been given though PW-3 states that the plaintiff's possession is through the tenants, but without specifying their names and the terms of lease/tenancy. Anyhow, These witnesses, when subjected to the cross-examination by the petitioners, have not been able to sustain their above bald assertions. Besides, the plaintiff has deliberately omitted to produce any revenue record i.e the jamabandis for the relevant period or the Khasra girdawari to establish either her physical or the possession through the tenants. No proof of the payment of the land revenue was given by her. It is also not established, as to who were the tenants of the plaintiff cultivating the land; from whom the petitioners demanded the share of produce, as is alleged in Para No. 6 of the plaint. Neither any tenant, who was cultivating the land under the plaintiff has been examined nor any lease/tenancy agreement in this regards has been produced by her.
As against the above, the petitioners have tendered in evidence the jamabandi for the years 1970-71, 1973-74, 1977-78, 1985-86 (Ex. D-22 to Ex. D-24), as also the khasra girdawari for the entire period from 1985 to 1990, Ex. D-25, which proves that the sale-deed has been given due effect in the record of rights and it is the petitioners, who are recorded as the owners in possession of the property; besides, DW-2, who is the Senior Clerk Naib Zarri Engineer Well-drilling Jhang, deposed that it is the petitioners, who on 16.5.1982 had applied for the subsidy grant on tube-well to his department, which was allowed and as per the record, the tube well was purchased through the department and was installed at Square No. 48, Killa No. 2, i.e. part of the suit land. DW-4 is the Patwari of the mouza, whereas, DW-10 is the ex-Kardar of the plaintiff-respondent; both of them in their examinations-in-chief clearly and categorically stated about the possession of the petitioners over the suit property, particularly, DW-10, deposed that it was so delivered on the day of the registration of the sale-deed, but these statements have not been subjected to the cross-examination. Moreover, the sale in favour of the petitioners, was challenged by Ghulam Akbar and Muhammad Nawaz, through pre-emption action initiated on 8.4.1974, which was contested by the petitioners and through the judgment Ex. D-14 dated 25.1.1981, the suit was dismissed. Ghulam Akbar Khan, etc. filed an appeal, which met the same fate and was dismissed on 27.4.1987 (Ex. D-15); both the judgments were challenged before this Court in RSA No. 122 of 1987, which was disallowed on 1.11.1988. From the perusal of these judgments, which are hotly contested matters, it stands satisfactorily proved that the possession of the suit property was with the petitioners. Their possession is also confirmed through the judgment dated 28.10.1987 Ex. D-21, passed in the suit for declaration, filed by Muhammad Nawaz, etc, who have challenged the sale in favour of the petitioners, in which the plaintiff was a party and this suit as ultimately dismissed. But as mentioned earlier, against this overwhelming evidence, the plaintiff has only led oral evidence, which is inadequate and dearthy to prove her possession. Therefore, it stands convincingly established on the record that the plaintiff was not in possession of the property and her assertion in this behalf, made in the plaint remains unsubstantiated. Therefore, the findings of the appellate Court in this behalf, which are contrary to the above aspects and are the result of misreading and non reading of the evidence, cannot sustain and are hereby set aside. It may be pertinent to state here that despite the above, the plaintiff did not seek the relief of possession and resultantly, her suit was also bad on account of the proviso to Section 42, which was an essential consequential relief, but was not claimed for.
The other main proposition of the case are:--if the plaintiff has been defrauded in the sale transaction, no consideration was received by her; the transaction was hit by MLR 64/115; therefore, the sale-deed Ex. D-5 should be annulled. The initial onus of this issue/proposition, was upon the plaintiff; her evidence has been scanned; PW-1 and PW-2 have not contributed much to the case of the plaintiff in this behalf, because they have not stated anything about the fraud, etc, which is the main stay of the plaintiff's case as set out in the plaint. This also is a very critical deficiency in the statement of PW-3, Khadim Hussain, who has appeared as the attorney for the plaintiff. The obvious legal consequence of such lapse is, that though the plaintiff has structured her case on the foundation of fraud, but without proving the same and it is settled law that the pleading is not the proof of any assertion. Reliance in this regard, can be placed upon the judgments reported as Mst. Khair-ul-Nisa, etc. vs. Malik Muhammad Ishaque, etc. (1972 SC 25 @ 31), Faqir Muhammad, etc. vs. Abdul Momin etc. (PLD 2003 SCMR 594 @ 601), Mst. Zareena and 5 others vs. Syeda Fatima Bi (PLD 1995 Karachi 388 @ 391), Bakht Baider, etc. vs. Naik Muhammad and another (2004 MLD 341 @ 351), K.A. H. Ghori vs. Khan Zafar Masood, etc. (PLD 1988 Karachi 460 @ 463), Anjuman-e-Islamia, Sialkot, vs. Haji Muhammad Younas (PLD 1997 Lahore 153 @ 157).
Despite and without prejudiced to the above, even if going by the rule that it is the beneficiary of a document, who has to prove its valid execution for consideration by the executant; in my considered view, the petitioners have led ample evidence to establish/prove the sale transaction; the two registered sale agreements to sell Ex. D-2 and Ex. D-3 and the extension Ex. D-4; as also the sale-deed Ex. D-5 and the tamleeqnama in favour of the plaintiff's son Ex. D-1, have been proved through the best evidence available to the petitioners; DW-3, Head Clerk, Registration Office Jhang, has brought the record/register of the Documents Nos. 381 (Ex. D-5) and 382 (Ex. D-1), upon which the signatures and the thumb impressions of the plaintiff have been affixed and she was identified by Ghulam Haider Shah Girdazi, her husband, who in my view was the best and most close and qualified person to identify and advise the plaintiff. Haji Muhammad Aslam Patwari has appeared as DW-4, who states that on the basis of the document No. 381 (Ex. D-5) Mutation No. 493, with regard to the land measuring 844 Kanals and 16 Marlas was sanctioned in favour of the petitioners, whereas, on account of the other Bearing No. 382 (Ex. D-1), Mutation No. 492 was attested in favour of the plaintiff's son. DW-6, is the scribe of documents Ex. D-1 to Ex. D-5, who has testified about the execution of all these instruments, which according to him were explained to the parties, who thereafter executed the same in his presence, after understanding; these documents are also duly incorporated in the registers maintained by him; he categorically stated that the plaintiff was identified by her husband Syed Ghulam Haider Shah, whom he know personally. About the sale-deed Ex.D-5, he has particularly stated DW-7, Malik Noor Muhammad is the local commission, who was appointed by the Sub-Registrar for the purpose of the registration of the Ex. D-4, he also stated that the document was explained to the plaintiff and after understanding and accepting the correctness of the document, she had executed the same; he further deposed that the plaintiff was identified by Syed Ghulam Haider Shah, the husband of the plaintiff, whom he personally knew. DW-8, Faiz Bakhsh, is a stamp vendor, who states to have sold the stamp papers of Ex. D-2 to Ex. D-5, he also is the marginal witness of these documents and deposed that the husband of the plaintiff is his neighbour; the above documents were executed by the plaintiff in his presence, which were read over and explained to her. It may be pertinent to state here that the other two marginal witnesses of these documents, admittedly had died by that time; Ashiq Hussain (DW-10) has stated in his examination-in-chief that he was the Kardar of the plaintiff at the relevant time; she has entered into the sale agreement with the petitioners; she received the consideration; details whereof are given by him his statement. He categorically mentioned that:--
Interestingly, these material depositions made by him, have not been subjected to cross-examination. It has not been suggested to him that in the year 1973, he was not the Kardar of the plaintiff, and that plaintiff personally had not gone to the office of the Sub Registrar for the purpose of registration of Ex. D-5 and the witness as stated by was not accompanying her.
From the above quality and preponderance of evidence, led by both the sides, coupled with the attending circumstances of the case such as lack of plaintiff's possession over the suit property, since the time of its sale; the incorporation of the sale in the revenue record and the name of the purchasers appearing in the subsequent jamabandis, khasra girdawaris in the name of the petitioners, since the date of the transaction; delay in filing of the suit, for such a considerable period of time; pre-emption and other litigation about the same property and its outcome; the presence of the plaintiff's husband on each and every occasion as deposed by all the concerned witnesses and there being no denial in this behalf; no allegation made against the husband of being a party to the fraud, as alleged in the plaint, goes to prove that the sale was made by the plaintiff for valid consideration.
It may also be added that according to PW-2, the plaintiff used to come to the village/mauze after very year/six month; it is most improbable that she would not know about the sale of the property, especially in the situation, when it has not been proved by her that she was in possession and was receiving any yeild/income from the property.
It may also be significant to mention here that the plaintiff has failed to appear personally before the Court and therefore, the presumption can rightly be drawn against here for withholding the best evidence. Reliance in this behalf, can be placed upon the judgments reported as Shah Nawaz, etc. vs. Naab Khan (PLD 1976 SC 767 @ 780 & 781), Mst. Farhat Begum and others vs. Said Ahmed Shah, etc. (2002 CLC 1956 @ 1969), Feroz Khan, etc. vs. Mst. Waziran Bibi (1987 SCMR 1647 @ 1648). Shahnawaz and another vs. Nawab Khan (1976 SC 767 @ 781), Sughran Bibi, vs. Mst. Aziz Begum, etc. (1996 SCMR 137 @ 144), Abdul Ahad, etc. vs. Ropshan Din etc. (1979 SC 890 @ 904), Muhammad Mal Khan, vs. Allah Yar Khan (2002 SCMR 235), Malik Muhammad Ishaque vs. Messrs Crose Theatre, etc. (1977 SC 109 @ 133) and Surat Cotton Spinning and Weaving Mills, Ltd. vs. Secretary of State (AIR 1937 PC 152 @ 157). Therefore, I am of the considered view, that the sale-deed, Ex. D-5 in favour of the petitioners dated 10.4.1973, is not the result of any fraud and misrepresentation, rather is a genuine transaction for due consideration and the plaintiff has failed to prove the transaction void/voidable. Therefore, on account of the above, the findings of the Court of appeal on Issue Nos. 3 and 8 are also set aside.
As regards the challenge to the sale on the basis of being violative of the MLR 64/115, Mr. Aamar Raza A. Khan, has rightly argued that the Civil Court has no jurisdiction in this behalf, which can only be exercised by a forum constituted under the relevant law. Reliance can be placed upon the cases reported as Ismail and others vs. Muhammad Khan (2002 SCMR 1317), Mst. Aisha Bibi vs. Nazir Ahmad, etc. (1994 SCMR 1937) and Muhammad Ashraf vs. Abdul Aziz, etc. (2002 CLC 909). Besides, it may also be mentioned that in order to avoid the violation of the MLR, the plaintiff had executed the gift Tamleeqnama Ex. D-1 of 16 Kanals in favour of her son, but subsequently, on account of the collusive suit and a decree, this tamleeq Ex. D-1 was got set aside by her, this was perhaps done with an object to make a cause to challenge the sale of the petitioners.
I am not much convinced by the argument of Mr. Muhammad Ahmed Qayyum, that the plaintiff was a pardanashin lady and that the transaction in question on her behalf should be adjudged to be void by applying the rule of pardanashin and illiteracy, suffice to to say that the plea of pardanashin lady though has been raised in the plaint, but this has not been so proved through the evidence of the plaintiff; she has been identified by her husband with whom, she has been living throughout; he was the best person to advise and identify the plaintiff at all the levels and the stages; no fraud has been proved against him. It is not established on the record, if the relationship between the husband and wife were sour before or after the transaction, therefore, even if the plaintiff was a pardanashin lady, yet she had independent advise of her husband resultantly, the transaction in question, could not be declared void on that account. It may be reiterated even at the cost of repetition that the fraud pleaded against the husband has not been proved by the plaintiff in her evidence.
As regards the issue of limitation is considered, the suit has been filed after more than a period of 12 years and three months; it is a composite suit for the declaration u/S. 42 and 39 of the Specific Relief Act. For the suit falling under Section 39 of the Act ibid, Article 91 of the Limitation Act, is applicable for which, limitation prescribed is three years. However, if considered that the suit mainly is for the declaration and the relief of cancellation is only an ancillary or incidental thereto, at the most, Article 120 shall be applicable, under which, the limitation is six years from the date, when the right to sue accrues. In the instant case, such right accrued to the petitioner on 10.4.1973, when the sale-deed Ex. D-5 was executed/ registered, therefore, such suit brought after more than 12 years was out of limitation. But, if the plaintiff wanted to attain the benefits of Section 18 of the Limitation Act, she should have taken such plea in the plaint, which should have been drafted conforming to the provisions of Order VII, Rule 6, however, not only the plaint is lacking in this behalf but also the fraud has not been proved by the plaintiff as held above, thus necessarily the plaintiff's suit was barred by limitation and has been rightly so held by the learned trial Court. The view taken by the Court of appeal that "The appellant/plaintiff is a Parda Nasheen lady, therefore, this is accepted that she (appellant/plaintiff) came to know about this fraud when her tenants were removed and she filed the suit for declaration. This issue is decided against the respondents in favour of the appellant" is absolutely misconceived and has been made beyond the case of the plaintiff, firstly, she has not proved to be a pardanashin lady; she has failed to prove the fraud and it is neither her case, nor proved that her tenants were ever in possession of the property, who were ousted by the petitioners, which event could give her a cause of action to sue for the declaration; this issue thus has been again wrongly decided by the Court of appeal.
For what has been stated above, the judgment and decree of the learned Court of appeal is not only based upon misreading and non reading of the record, but also by misapplication of the law, resultantly, same cannot be sustained, which is hereby set aside, with the result that by upholding the judgment and decree of the learned trial Court, the suit of the plaintiff remains dismissed. This revision is accordingly allowed.
(Aziz Ahmad Tarar) Revision accepted.
PLJ 2006 Lahore 921
Present: Muhammad Muzammal Khan, J.
MUHAMMAD ARSHAD--Petitioner
versus
SECRETARY, LOCAL GOVT. & RURAL DEVELOPMENT DEPARTMENT, CIVIL SECRETARIAT, LAHORE and 4 others--Respondents
W.P. No. 4800 of 2005, decided on 30.3.2005.
(i) Constitution of Pakistan, 1973--
----Art. 199--Maintainability of appeal--Lack of cause of action & locus standi--Held: Petitioner neither participant of first auction nor took part in re-auction--Mere participation, confers no locus standi to file an appeal within the meaning of Art. 199--Petitioner had no cause of action to file an appeal--He being not aggrieved person within the meaning of Art. 199--Petition not maintainable and dismissed. [P. 923] B
(ii) Punjab Local Government (Auctioning of Collection Rights) Rules, 2003--
----R. 9--Re-auction proceedings--Non-specification of reserved price--No doubt reserved price not mentioned in the notice of re-auction but it was not a defect of such nature on the basis of which entire activity of re-auctioning the collection rights of TIP Tax be annulled--Such lap is mere accidental procedural--Petition dismissed. [P. 923] A
Mr. Ashtar Ausaf Ali, Advocate for Petitioner.
Date of hearing : 30.3.2005.
Order
Instant Constitutional petitioner seeks order dated 15.2.2005 passed by Respondent No. 1 to be declared illegal, void and of no legal consequence whereby appeal of the petitioner was dismissed being without any cause of action, with an added prayer that respondents may be directed to handover collection rights of TIP Taxes to the petitioner on his offered bid.
Precisely, relevant facts are that T.M.A. Aziz Bhatti Town, Lahore publicized auction of collection rights of TIP Tax for the current financial year, notifying the date as 31.5.2004. In the auction one Gul Marjan was declared the highest bidder with an amount of Rs. 35 million but his offer was not accepted by T.M.A. and decided to re-auction to collection rights and notified dated of re-auction as 29.6.2004. Against notice of re-auction, Gul Marjan filed a Constitutional petition before this Court (W.P. No. 10631/2004) which was disposed of on 29.6.2004 with a direction to Respondent No. 1 to decide the matter afresh keeping in view the highest bid in the second auction. In re-auction, hammer fell on a bid of Rs. 57.00 Crore, which was almost 50% over and above to the bid of Gul Marjan hence the matter was decided against him. Offer of the highest bidder in re-auction was approved by the Town Council in general meeting dated 9th July, 2004 and work order was issued accordingly.
Petitioner who had not participated in any of the two above referred auctions, filed an appeal against the order of approval of highest bid in re-auction of Mr. Waheed Ullah Butt son of Rahmat Ullah Butt before Respondent No. 1 with a offer that he is ready to accept the lease of collection rights of TIP Tax at Rs. 7.00 Crore. Respondent No. 1 besides the reasons that T.M.A. had already leased out the collection rights after approval of the council and the required agreement having been already executed in favour of the successive bidder, held that petitioner had no locus standi/cause of action to file an appeal and non-suited him vide order dated 15.2.2005. Petitioner has now filed instant Constitutional petition with the relief needed above.
Learned counsel for the petitioner submitted that notice of re-auction did not specify the reserved price of the auction, in violation of Rule 9 of the Punjab Local Government (auctioning of collection rights) Rules, 2003 thus the entire structure of auction proceedings, based thereon was void and has to be pulled down. It was further submitted that re-auction of collection rights of TIP Tax was not transparent as is evident from offer by the petitioner of Rs. 7.00 Crore which is over and above, the offer accepted by T.M.A. by almost Rs. 1.25 Crore. It was further emphasized on behalf of the petitioner that Respondent No. 1 erroneously dismissed his appeal being without any cause of action, as according to him, every individual had a right to point out illegality/irregularity committed by the state functionaries. Clear violation of rules applicable, was made basis in support of the relief claimed. It was further submitted that petitioner was deprived of equal opportunity to compete for gaining the collection rights, in violation of rules applicable.
I have minutely considered the arguments of the learned counsel for the parties and have examined the record appended herewith. Undisputedly, petitioner neither was a participant of first auction held on 31.5.2004 nor he took part in re-auction held by T.M.A. Aziz Bhatti Town Lahore on 29.6.2004. Hence the petitioner had no cause of Action to approach Respondent No. 1. Likewise he was not an aggrieved person to maintain the Constitutional petition against the order of acceptance of highest bid. Highest bid which was almost 50% over and above the earlier bid of Gul Marjan was approved by the Town Committee after fulfilling all the formalities of law applicable and this auction could not be annulled when the financial year has already run out by half of its life and that too, on a mere verbal offer of Rs. 7.00 Crore because he did not append with his appeal before Respondent No. 1 any pay order etc. in order to show his bona fide regarding his offer. Be that as it may, a prospective/potential bidder who had not joined the auction proceedings could not be treated as an aggrieved person to maintain a Constitutional petition Under Article 199 of Constitution of Islamic Republic of Pakistan, 1973. If the persons like the petitioner are allowed to challenge the approval of highest bids coming out of open auction after due publication, sanctity attached to the official acts will loss its worth in the eyes of public at large and they will prefer not to participate in such proceedings in future. Controversy regarding the persons, who can maintain a Constitutional petition Under Article 199, is settled by this time and it has been mandated by the Hon'ble Supreme Court that mere possibility of bidding out the auction, without actual participation, confers no locus standi to file such petitions. Reference in this behalf can be made to the Judgments in the cases of Nisar Ahmad and others Versus Additional Secretary, Food and Agricultural Government of Pakistan (1979 SCMR 389), Mst. Noor Jehan Begum Versus Dr. Abdus Samad and others (1987 SCMR 1577) and Messrs Ittehad Cargo Service and others Versus Messrs Syed Tasneem Hussain Naqvi and others (PLD 2001 S.C. 116).
No doubt reserved price was not mentioned in the notice of re-auction but it was not a defect of such nature that on the basis of it entire activity of re-auctioning the collection rights of TIP Tax be annulled. This lapse is mere accidental/procedural and cannot be given any credence especially when the highest bid was 50% over and above of the last year's income. Above all the auction proceedings, subsequently conducted were absolutely transparent and the petitioner could not point out any malice, unfairness or favoritism in those proceedings as those were also scanned by the general house of T.M.A. while according sanction in the meeting held on 9.7.2004. Besides it, after the approval of the Town Council, all the necessary documents including agreement between parties were executed and the bidder has entered into his job since July, 2004 and at this juncture pulling of carpet from his feet, cannot be justified on the basis of any law or cannon known for administration for justice.
For the reasons noted above, petitioner had no cause of action to file and appeal before Respondent No. 1 and at the same time he being not aggrieved person within the meaning of Article 199 of Constitution of Islamic Republic of Pakistan, 1973, this petition is not maintainable besides being devoid of any force and is dismissed in limine.
(Hina Anwar) Petition dismissed.
PLJ 2006 Lahore 924
Present: Fazal-e-Miran Chauhan, J.
SHAHIDA PERVEEN and another--Petitioners
versus
SHER AFZAL and 2 others--Respondents
W.P. No. 17291 of 2005, decided on 24.5.2006.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 9 (Amending Order (LV of 2002)--Constitution of Pakistan, 1973--Art. 199--Essential--Personal attendance in suit for maintenance--Value of written statement through attorney--Suit for maintenance was decreed ex-parte--Petition for setting aside ex-parte decree was allowed--Petitioners filed an application with prayer that respondent had not appeared in person as required u/S. 9 of West Pakistan Family Courts Act, 1964--Written statement was filed by attorney and was not signed by respondent whereas under law respondent was required to appear in person and filed written statement with his own signature--Appeal was accepted by First Appellate Court and case remanded--Assailed--Suit was decreed ex-parte, as respondent failed to appear despite service, however application for setting aside the ex-parte, decree by appointed attorney--No order for appearance of respondent was passed--Family Court rejected written statement and decreed the suit without affording an opportunity to respondent to appear in person--Appellate Court directed trial Court to allow respondent to file written statement and decided the suit on merit in the interest of justice--Suit for maintenance was filed on 29.4.2002 and amendment in Act was made by amending Order No. LV of 2002 dated 1.10.2002 not to be applied with retrospective in the pendency of the suit--Held: Respondent could not be deprived his right to defend the suit through his attorney--Appellate Court was not illegal in the eyes of law but was based on the principle of natural justice--Respondent who had come back from foreign country would be provided one opportunity to defend his case--Petition dismissed. [Pp. 926 & 927] A, B & C
Mr. Nisar Ahmad Baig, Advocate for Petitioners.
Ch. Zulfiqar Ali, Advocate for Respondent No. 1.
Respondents Nos. 2 and 3 are proforma respondents.
Date of hearing: 24.5.2006.
Order
By filing the suit for maintenance on 29.2.2002, the petitioners/respondents claimed past and future maintenance at the rate of Rs. 50,000/- per month for both mother and minor daughter. Notice to Respondent No.1/defendant was issued through ordinary mode of service. provided in the Family Laws and also substituted service, Respondent No. 1 and his mother Mst. Kaneez Bibi did not appear and were proceeded ex-parte and ex-parte evidence was recorded by the learned Judge Family Court, who proceeded to pass ex-parte decree in favour of the petitioners and against Respondent No. 1, vide judgment dated 19.7.2002 and fixed the maintenance of the petitioners at the rate of Rs. 5000/- per-month, up to the time, when they are legally debarred from receiving it.
On 26.3.2004, written statement was filed by the attorney on behalf of Respondent No. 1 and name of Mst. Kaneez Bibi, mother of Respondent No. 1, was deleted on the same date, by the learned Judge Family Court, on the request of the petitioners and vide order of even date, interim maintenance of minor-Petitioner No. 2 was fixed at the rate of Rs. 1000/- per-month and Respondent No. 1/defendant was directed to pay the same till the disposal of the suit.
On 8.4.2004, interim maintenance of Rs. 1000/- was deposited by the attorney of Respondent No. 1/defendant Sher Afzal. On the same day, an application was filed by the petitioners with a prayer that Respondent No. 1/defendant has not appeared in person as required under Section 9 of the West Pakistan Family Laws Act, 1964. The written-statement was filed by the attorney and is not signed by Respondent No. 1/defendant, whereas, under the law, Respondent No. 1 was required to appear in person and file written-statement with his own signatures. Reply to the same was filed by Respondent No. 1 through his attorney. The learned Judge Family Court, vide his order dated 18.6.2004, replying on PLD 2001 Lahore 495, proceeded to hold that where written-statement was filed through attorney, it did not deserve consideration. As per Section 9 of the Family Court Act, 1964, as amended, vide amending Order No. LV of 2002, dated 1.10.2002, it is required that the defendant shall file his written-statement and shall appear before the Court, thus, presence of the defendant to file written statement was necessary and declared that written statement filed through attorney has no value and in future it will not be considered and shall be deemed uncontested. The learned Judge Family Court proceeded to decree the suit on 1.2.2005.
Being aggrieved, Respondent No. 1 filed an appeal before the learned Additional District Judge, Kharian, who vide judgment dated 5.7.2005, accepted the appeal of Respondent No. 1, set-aside the judgment and decree of the Judge Family Court and remanded the case to the trial Court to decide the same on merits, after allowing Respondent No.1/defendant to join the proceedings, who had returned Pakistan and is present in Court.
The petitioners, being aggrieved of the impugned judgment dated 5.7.2005, have filed this constitutional petition.
It is contended by learned counsel for the petitioners that as per amended Section 9 of West Pakistan Family Court Act, 1964, personal attendance of the respondent in the suit for maintenance is mandatory and failure to attend the Court for any reason, whatsoever, disentitles him of any defence and the suit shall be deemed as un-controverted and shall be decreed. Reliance is placed on PLD 2001 Lahore 495.
Conversely, learned counsel for Respondent No. 1 contends that the order passed by the learned lower Appellate Court relying on the law laid down by the Hon'ble Supreme Court of Pakistan in PLJ 1981 SC 605. The provision of Family Court does not take away the right of the counsel to appear on behalf of his client in the proceedings under this Act. Under Section 18 of the Family Court Act, a Pardanashin lady acts through her agent and a Court allows an agent to represent a Pardanashin lady does not, in any manner, takes away the right of a counsel to appear and act on behalf of his client. Such a right is recognized by Section 22 of Legal Practioner Bar Council Act.
I have heard the learned counsel for the parties, perused the proceedings of the Family Court and the law cited on the subject. As discussed above, the suit filed by Respondent No. 1 was decreed ex-parte on 19.7.2002, as Respondent No. 1 failed to appear despite service, however, an application for setting aside the ex-parte decree was filed within a specific time by Respondent No. 1 through Mukhtar Sikandar Hayat, duly appointed attorney. Ex-parte decree was set-aside, observing that Sher Afzal was not served as he was residing in U.S.A., whereas, his mother was served. The suit was restored to its original number and attorney was directed to file written-statement. No. order for appearance of Respondent No. 1 was passed. The learned Judge Family Court, on the application of the petitioners, without affording an opportunity to Respondent No. 1 to appear in person, and file his written-statement, proceeded to reject the written statement and decreed the suit holding the same to be un-controverted.
In similar situation is in the case of Khalid Mehmood vs. Razi Abbas Bokhari, Judge Family Court & another [PLJ 1979 Lahore 26] and Mst. Saeeda vs. Lal Radshah (PLJ 1981 S.C. 605) wherein it was held that personal attendance of parties in Court was not indispensable and a party could be represented by an agent. The provisions of Section 18 enables the Court to permit an authorized agent to represent a Pardahashin lades does not, in any manner, take away the rights of a counsel to appear and act on behalf of his client. The view taken in PLJ 1979 Lahore 26 was approved by the Hon'ble Supreme Court of Pakistan recognizing the right of an agent to appear on behalf of the respondent under Section 18 of the West Pakistan Family Court Act, 1964 and Section 22 of the Legal Practitioners and Bar Council Act, 1973.
In this case, ex-parte decree was passed against Respondent No. 1 on 19.7.2002. Having come to know of the same on 28.5.2003, an application for setting aside the ex-parte decree was filed by Respondent No. 1 through this attorney, which was allowed and the agent was directed to file written statement; same was filed without delay. It was further observed that, at the time of remand of case, Respondent No. 1 was present in the Court. The learned lower Appellate Court directed the trial Court to allow the respondent to file written statement and decided the suit on merits, in the interest of justice. The suit for maintenance was filed on 29.4.2002 and amendment in the Act was made by amending Order No. LV of 2002, dated 1.10.2002, not to be applied with retrospective in the pendency of the suit.
Be that as it may, keeping in view the dictum laid down in PLJ 1981 SC 605, the respondent cannot be deprived his right to defend the suit through his attorney. The impugned judgment passed by the learned lower Appellate Court is not illegal in the eye of law, but, is based on the principle of natural justice. Respondent No. 1, who had come back from U.S.A. shall be provided one opportunity to defend his case. This writ petition, being devoid of any force, is dismissed.
(Rafaqat Ali Sohal) Petition dismissed.
PLJ 2006 Lahore 927 [Bahawalpur Bench, Bahawalpur]
Present: Muhammad Jehangir Arshad, J.
MUHAMMAD AZAM--Petitioner
versus
A.D.J., etc.--Respondents
W.P. No. 3905 of 2005, heard on 14.7.2005.
Muslim Family Law Ordinance, 1961--
----S. 6--Entitlement of dowry without dissolved of marriage or death--Suit of respondent for recovery of dower was dismissed--Appeal allowed by First Appellate Court--Assailed--Validity--Question of--Deferred dower cannot be claimed unless marriage is dissolved by death of either party or till dissolution--Held : Dower whether prompt or deferred is inalienable right of wife and after consummation same becomes vested right for wife to claim at any time--First Appellate Court neither committed any illegality or irregularity nor same suffer from any jurisdictional defect--Petition was dismissed. [P. 929] A & B
Ch. Muhammad Shafi Meo, Advocate for Petitioner.
Mr. Abdul Jalil Khan, Advocate for Respondent No. 3.
Date of hearing : 14.7.2005.
Judgment
Through this petition Muhammad Azam petitioner/defendant has challenged the vires of judgment/order passed by learned Additional District Judge, Bahawalpur whereby the learned A.D.J. while allowing the appeal of Respondent No. 3 set-aside the judgment of learned Judge Family Court whereby suit filed by Respondent No. 3 for the recovery of her dower was dismissed. The learned Judge Family Court had dismissed the said suit on the ground that as the dower in question was mentioned as deferred in the Nikah Nama Ex. P-1 and as marriage between the parties still subsists therefore, the Respondent No. 3 was not entitled to claim the same until the marriage is dissolved by divorce or her death. The learned Additional District Judge however disagreed with the said view taken by the trial Court, by holding that as the petitioner/husband/defendant contracted second marriage in contravention with provision of Section 6 of Muslim Family Law Ordinance, 1961 hence the Respondent No. 3 became entitled to recover even the deferred dower. It was further held that in view of the law laid down in (2000 C.L.C. 1384) it was mandatory for the husband/defendant to pay the entire amount of dower whether prompt or deferred in case of contracting second marriage in presence of her first wife, without her permission.
Learned counsel for the petitioner has argued that findings of the learned Additional District Judge were contrary to the provisions of Muslim Law as contained in Para 290 of Muhammadan Law by Mulla. His argument is that since the disputed payment of dower was admittedly deferred, hence in terms of above-mentioned para the same was only payable either of dissolution of marriage or death or divorce, since neither of the three eventualities happened, hence the Respondent No. 3 was not entitled to claim the disputed dower.
On the other hand learned counsel for the Respondent No. 3 has supported the findings of learned Appellate Court and by placing reliance on para 336(2) of Muhammadan Law by Mulla argued that since the marriage between the parties stood consummated hence the Respondent No. 3 was in her right to claim payment of whole of the unpaid dower both prompt or deferred, therefore, the learned Additional District Judge rightly reversed the findings of the learned trial Court on Issue No. 2 and passed decree in her favour.
I have considered the arguments of learned counsel for the parties and gone through the record.
There is no force in the contention of learned counsel for the petitioner that deferred dower cannot be claimed unless the marriage is dissolved by death of either party or till dissolution. It is now established principle of law that dower whether prompt or deferred is inalienable right of the wife and after consummation the same becomes vested right for a wife to claim at any time. Reliance is placed "Dr. Anees Ahmad versus Mst. Uzma" (PLD 1998 Lahore 52). Hence, the learned Additional District Judge while reversing the findings of the learned Judge Family Court on Issue No. 2 neither committed any illegality or irregularity nor the same suffer from any jurisdictional defect, hence the same are maintained. This Writ Petition being without substance is hereby dismissed.
(Rafaqat Ali Sohal) Petition dismissed.
PLJ 2006 Lahore 929 (DB)
Present: Mian Hamid Farooq and Syed Hamid Ali Shah, JJ.
KHALID LATIF--Appellant
versus
UNITED BANK LTD., SHAH ALAM MARKET, LAHORE and 4 others--Respondents
RFA No. 146 of 2000, heard on 13.4.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 48--Limitation Act (IX of 1908), Art. 181--First execution application would be governed by the period of 3 years and rest applications made thereafter would be governed by the period of six years--If the first execution application was filed within a period of three years and it was dismissed due to any reason then a decree holder is permitted to file any number of execution applications within the period of six years--Any application filed beyond the six years would be barred by time--Appeal allowed. [P. 931] A & B
Mr. Ashar Ellahi, Advocate for Appellant.
Respondent No. 1 was proceeded ex-parte vide order dated 18.10.2005.
Date of hearing : 13.4.2006.
Judgment
Mian Hamid Farooq, J.--Khalid Latif, the appellant/judgment debtor No. 6, through the instant appeal, has challenged order dated 2.3.2000, whereby the learned Judge Banking Court dismissed appellant's two applications.
Briefly stated facts of the case, as discernible from the available record, are that the then Special Judge Banking Court passed a decree, for recovery of Rs. 5,46,055/54 together with interest @ 4% per annum, against M/s. Khan Traders and 10 others, including the appellant, vide judgment and decree dated 22.6.1981. Pursuant thereto, the decree holder/respondent bank, on 11.6.1983, filed the first execution application, however, the same was dismissed. It appears from the record that the decree holder bank, instead of resurrecting the proceedings in the first execution petition, filed a fresh execution petition, on 17.4.1990, for the execution of same decree dated 22.6.1981. Thereupon the appellant filed two applications, one for stay of execution proceedings and other for dismissal of the execution petition on various grounds including the one that the petition, filed in the year 1990, for execution of decree dated 22.6.1981, is barred by time in view of provisions of Section 48 CPC. Both the petitions were resisted by the decree holder bank and ultimately the learned Judge Banking Court, after finding that the execution petition is within time, proceeded to dismiss both the applications, vide impugned single order dated 2.3.2000, hence the present appeal.
Respondent bank was proceeded ex-parte, vide order dated 18.10.2005, while on 10.4.2006, the appeal was dismissed as against Respondents Nos. 2 to 5.
Learned counsel for the appellant has contended that the second application, filed on 17.4.1990, for the execution of the decree dated 22.6.1981, is barred by time in view of provision of Section 48 CPC, therefore, the impugned order is not sustainable and the execution petition deserves to be dismissed. He has relied upon K.M. Munir and 2 others vs. National Bank of Pakistan and others (1999 CLC 555).
We have heard the learned counsel and examined the summoned record. Admittedly, Bank's suit for recovery was decreed on 22.6.1981, the decree holder bank filed the "first execution application" on 11.6.1983, which was dismissed on 2.9.1989 due to non-furnishing of "Fard Talika", and the "Second execution application" was submitted on 17.4.1990 for the execution of the same decree. According to the stance of the decree holder, as incorporated in the impugned order, as the "first execution application" was filed on 11.6.1983 and was within time, therefore "second execution application" filed on 17.4.1990, is also within time. It appears appropriate to reproduce portion of the impugned order, which reads as follows:--
"Counsel for the respondent has vehemently denied this fact and has pleaded that the first execution petition was filed on 11.6.1983 and was within time which has compelled the decree holder/respondent to file the present execution petition on 17.4.1990 and even otherwise, it is admitted by the petitioner judgment debtor that the present execution petition was filed as the year 1990."
As noted above, the "first execution application" was filed on 11.6.1983 for execution of the decree dated 22.6.1981, which was dismissed and subsequently, the decree holder filed a "fresh execution application", on 17.4.1990, for execution of the same decree. It is well settled law by now that "first execution application" would be governed by residue Article 181 of the Limitation Act, which provides a period of three years and the rest of the applications, made thereafter, would be governed by the period of 6 years as prescribed by Section 48 CPC. Joint reading of Article 181 of the Limitation Act and Section 48 CPC would show that the inner limit for filing execution application is three years (Refer to Article 181 of the Limitation Act), while the outer limit for filing execution petition is prescribed by Section 48 CPC i.e. 6 years. It flows from the above that if no execution application is filed within a period of 3 years, from the date of decree, the first execution application filed after the expiry of 3 years would obviously be barred by time. In such an eventuality, while filing the "first execution petition" the decree holder cannot avail the benefit of the extended period provided by Section 48 C.P.C. However, if the first execution application was filed within a period of three years and the same was dismissed due to any reasons, thereafter a decree holder is permitted to file any number of execution applications within a period of six years and any such application filed beyond a period of six years would be barred by time. If any case law is needed, judgments reported as Mahboob Khan vs. Hassan Khan Durrani (PLD 1990 S.C. 778) and National Bank of Pakistan vs. Mian Aziz ud Din and 7 others (1996 SCMR 759) can be referred.
In this case, although the "first execution application" was filed within a period of three years from the date of the decree, yet the second/fresh application, submitted on 17.4.1990, for the execution of the same decree dated 22.6.1981 was clearly barred by time. Under the facts of the present case, when the "first execution petition" was filed within time, any number of subsequent execution applications could have been filed uptil 21.6.1987, thus, the fresh execution petition, filed on 17.4.1990, was out of time.
In the above backdrop, we have examined the impugned order and find that the learned Judge Banking Court, while holding that the "second execution petition" filed on 17.4.1990 is within time, has committed grave illegality inasmuch as the law declared by the Hon'ble Supreme Court of Pakistan has completely been ignored. Thus we are constrained to reverse the impugned order.
Upshot of the above discussion is that the present appeal is allowed, the impugned order dated 2.3.2000 is set aside and the execution petition filed by the decree holder bank stands dismissed qua the appellant. No order as to costs.
(Fozia Fazal) Appeal allowed.
PLJ 2006 Lahore 932 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
SYED HASSAN RAZA--Petitioner
versus
D.C.O. RAJANPUR and 5 others others--Respondents
W.P. No. 1303 of 2006, heard on 24.4.2006.
Domicile--
----Genuine residence--Domicile of settled area--Admission to medical college against reserved seat--Validity--A Domicile certificate could be demanded as a matter of right and District Magistrate had no discretion--Petitioner was at the top of the list of the qualified candidates--Officials were directed to grant admission to petitioner against the reserved seat for tribal area. [Pp. 934 & 935] A & B
Mr. Atta Ullah Khan Tareen, Advocate for Petitioner.
Mr. Zafar Ullah Khan Khakwani, A.A.G. Chaudhry Muhammad Sarwar Awan, Advocate for Respondent No. 3.
Mian Abbas Ahmad, Advocate for Respondent No. 5.
Nemo for remaining Respondents.
Mr. Muhammad Qasim, representative of Nishtar Medical College, Multan, Abdul Rasheed, Litigation Assistant, KEMC, Lahore, Abdul Rasheed Qureshi, representative of DCO Rajanpur and Muhammad Arshad Gopang D.O (C), Rajanpur.
Date of hearing : 24.4.2006.
Judgment
Maulvi Anwar-ul-Haq, J.--This Judgment shall decide W.P. No. 1303/2006 & W.P. 6326/2005, as common questions are involved. The petitioners in both these cases as well as private respondents in W.P. No. 1303/2006 having passed their intermediate examination (F.Sc.) and also having qualified the entry test are competing for a seat reserved for admission to a Medical College in Punjab (Nishtar Medical College, Multan). The reserve seat pertains to Rajanpur Tribal Area. There is no dispute that inter-se the said students have been graded as follows on merit with reference to the cumulative score achieved by them:--
Muhammad Usama Rahim s/o Dr. Mian Abdul Rahim 73.972%
Sara Gurchani d/o Mehboob Hussain Gurchani 66.866%
Faria Javed d/o Muhammad Javed 66.304%
Syed Hassan Raza Bukhari s/o Syed Mukhtar Hussain 65.973%
Mr. Atta Ullah Khan Tareen, Advocate, learned counsel for the petitioner contends that his client is a genuine resident & domiciled of Rajanpur Tribal Area. The father of Muhammad Usama Rahim, Respondent No. 3 (petitioner in the W.P. No. 6326/2005) has managed to obtain a domicile certificate from the said area illegally rather fraudulently by misrepresenting facts and that Respondent No. 1 DCO is liable to cancel the domicile certificate of the said respondent as also the other private respondents. According to the learned counsel rather of the said respondent originally obtained a domicile in respect of settled area of Rajanpur showing his residence in village Fazilpur Tehsil Rajanpur District D.G. Khan. Thereafter he got the said domicile certificate cancelled and obtained another domicile certificate in the year 1996 showing him to be a resident of village Muranj in the tribal area of Rajanpur district. The learned counsel insists that this exercise has been undertaken only to get his son admitted to the Medical College against the said reserved seat.
Mr. Zafarullah Khan Khakwani, A.A.G. has produced the original records pertaining to the said proceedings. According to the learned A.A.G. the domicile certificate had been issued in the year 1996 in accordance with law, as the father of the said Respondent No. 3 is an owner of land in the said village and is a resident thereof.
M/s. Tahir Mehmood and Muhammad Sarwar Awan, Advocate, for the said Respondent No. 3 vehemently urged that their client is at the top of the list amongst the contestants and these proceedings have been filed maliciously to deprive him of what is his by right. According to them the proceedings took place as far back in the year 1996 whereas the said respondent passed his examination in the year 2004-2005 and then applied for admission and no sinister and malicious motive can be attributed either to the father of Respondent No. 3 or the DCO concerned in this matter. The representative of the Admission Board contends that the question of domicile has been verified by the DCO. He further contends that none of the petitioners have had education from the said tribal area. All the counsel representing the private parties referred to an earlier Judgment dated 3.5.2005 in W.P. No. 8282/2005 wherein this Court had held that in case the educational facilities are not available in the tribal area then it would not be required of a candidate to establish that he has received education from the tribal area. Mian Abbas Ahmad Advocate, learned counsel for Respondent No. 5 has not much to say as his client is no where near the other candidates on the merit list.
I have gone through the files of these cases with the assistance of the learned counsel for the parties. The DCO in his reply has stated that all the domicile certificates issued to the several candidates are in order and have been issued after following the legal procedure.
Now I have gone through the original proceedings that took place on the application of Mian Abdul Rahim, the father of said Muhammad Usama Rahim. This application was filed on 2.6.1996; he prayed for the change of his domicile as he had changed his residential place. The affidavit accompanying the application narrates that he was formerly resident of Fazilpur Tehsil Rajanpur District D.G. Khan and a domicile certificate had been issued to him on 2.9.1970 and that now he has migrated to village Muranj. A copy of the voters list for the year 1986-87 from the said area was also filed. The Political Tehsildar after obtaining reports from the Patwari and Risaldar of Border Military Police reported that Dr. Abdul Rahim is a resident of village Muranj. The original certificate earlier issued was surrendered and is present in the file. It was thereafter that the certificate of domicile was issued on 20.8.1996.
Mr. Atta Ullah Tareen, Advocate, has drawn my attention to an application addressed by the said Dr. Abdul Rahim to the Health Department, Government of the Punjab, Lahore, praying for fixation of his seniority. The learned counsel particularly points out that in this application he has shown his permanent address as C/O Fareed Medical Store, Fazilpur, District Rajanpur. The application is dated 10.3.2000. The learned counsel was confronted with the said application and it has been explained that at the relevant time there was no post office in Muranj whereas there is branch post office for Fazilpur and it was for this reason that he had given the address C/O Fareed Medical Store. A copy of list of post offices has been shown to me. I find the said explanation to be sufficient. Now the learned counsel for the petitioner has cited the cases of (1) Miss Rakhshanda Aslam & another v. Nomination Board of Azad Jammu & Kashmir through its Secretary Muzaffarabad & 2 others (PLD 1986 SC (AJ&K) 1); (2) Ahmad Hassan v. Abdullah & 5 others (PLD 1992 Peshawar 1) & (3) Chaudhry Noor Muhammad v. Province of West Pakistan & another (P.L.D. 1971 Lahore 367 (DB) to urge that the domicile certificate could not have been changed mechanically and some inquiry must have been instituted. I have examined the said judgments. So far as the judgment from the Hon'ble Supreme Court of AJ&K is concerned, the same interprets the provisions of Azad Jammu & Kashmir State Subjects Act, 1980 and is not relevant. Now so far as the judgment of the Peshawar High Court is concerned, I find that the rule laid down is that there was no prescribed procedure in the matter and the report of Tehsildar was found to be in order by the learned Peshawar High Court. So far as the judgment of this Court is concerned, the rule laid-down is that a domicile certificate could be demanded as a matter of right and the District Magistrate has no discretion. Nothing turns in this matter on the basis of the said judgments.
There is no denial that Muhammad Usama Rahim, petitioner, in W.P. No. 6326/2005 is at the top of the list of the qualifying candidates rather far ahead of the other private parties.
For all what has been discussed above, the W.P. No. 1303/2006 is dismissed while W.P. No. 6326/2005 is allowed and the official respondents are directed to grant admission to Muhammad Usama Rahim, petitioner, against the said reserved seat for Tribal Area Rajanpur, subject to fulfillment of other terms and conditions. The original records be returned to the learned A.A.G.
(Fozia Fazal) Order accordingly
PLJ 2006 Lahore 935 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD DIN and another--Petitioners
versus
SHAH MUHAMMAD--Respondent
Civil Revision No. 414-D of 2003, heard on 14.3.2006.
Code of Civil Procedure, 1908 (V of 1908)--
----S. 115--Civil Revision--Entitlement of share--Held: Admissions made in pleadings are of very special nature and the party made an admission in the pleadings could not be allowed to withdraw the same--Trial Court had acted without jurisdiction while allowing the respondent to withdraw the admission--Petition allowed. [Pp. 938 & 939] A & B
Mr. Ahmad Raza, Advocate for Petitioners.
Mr. M. Tariq Nadeem, Advocate for Respondent.
Date of hearing: 14.3.2006.
Judgment
On 27.10.1996, the petitioners filed a suit against the respondent. In the plaint it was stated that the suit land mentioned in the plaint was owned by Mst. Bhano, who died on 20.9.1972. A pedigree was drawn in para 1 of the plaint showing the parties to be the sons and daughters of said Mst. Bhano. It was then stated that Mst. Bhano was first married to Barkat Ali, as a result of which wedlock, the petitioners were born. After the death of Barkat Ali, she married Faqir Muhammad and she bore two sons, one of whom died while Respondent No. 1 is alive. After the death of Faqir Muhammad, the land was mutated in favour of the said widow. On her death, the petitioners are entitled to 3/5 share in the suit land. However, the respondent got inheritance Mutation No. 47 attested on 5.9.1972, to the exclusion of the petitioners. He had been paying their produce share. With these averments a declaration was sought that they are the owners of 3/5 share and the said inheritance mutation is illegal and void.
On 5.1.1998, the respondent filed written statement through two learned Advocates duly signed and verified by him. He admitted without any demur the said para 1 of the plaint and also stated in response to para 3 that the pedigree table is correct. He, however, raised some preliminary objections. I will be referring to this written-statement in some detail in the later part of my Judgement. On 22.2.1999, the respondent filed an application for amendment of the written-statement to enable him to deny para 1 and said para 3 of the plaint. This application was vehemently resisted. Vide order dated 15.7.1999, the learned trial Court allowed the said amendment. I will be referring later to the amended written-statement filed on 22.7.1999. Following issues were framed on 27.1.1998:--
Whether plaintiffs are legal heirs of Mst. Bhaven deceased and are entitled to succeed to 3/5 share in the property left by the deceased? OPP.
If Issue No. 1 above is not proved in affirmative, then whether the mutation of Inheritance No. 47 dated 26.3.1973 is against law and facts, ineffective qua the rights of the plaintiffs and is liable to be set aside alongwith correction in the revenue record? OPP.
Whether the suit is under-valued for the purposes of Court fee? OPD
Whether the suit is hit by the doctrine of res judicata? OPD
Whether the plaintiffs have no cause of action to file this suit? OPD
Whether the suit is not maintainable in its present form? OPD
Whether the plaintiffs are estopped by their words and conduct and have waived their rights, if any? OPD
Relief.
Evidence of the parties was recorded. The learned trial Court dismissed the suit on 27.3.2001, while the learned Additional District Judge, Lodhran, dismissed a first appeal filed by the petitioners on 7.3.2003.
Learned counsel for the petitioners vehemently contends that the learned trial Court had acted without jurisdiction while allowing the said amendment in the written-statement. According to him, the learned Courts below have failed to read the evidence in the light of the attending circumstances of the case reflecting on the face of the record. Learned counsel for the respondent on the other hand, contends that the said order of amendment has attained finality since it was not challenged when it was passed. He accordingly supports the impugned Judgments and Decrees.
I have gone through the copies of the records. I have already referred to the original pleadings and that matter of amendment above. Now as noted by me above, in the original written-statement filed on 5.1.1998, the pedigree showing the parties to be the children of Mst. Bhano was admitted and in response to para 3 above, it was stated that the pedigree table is correct.
Now in the application filed on 20.2.1999, for amendment of the plaint, a whole new plea was sought to be introduced by withdrawing the admission of para 1 of the plant. The application was, of course, contested. Now the learned trial Court instead of reading the said application proceeded to assume that the respondent is trying to make a case of clerical error in the matter of such admission, and with reference to Muhammad Zahoor and another v. Lal Muhammad and 2 others (1988 SCMR 322) proceeded to allow the application. It is rather painful to note that even the amended written statement was not read by the learned trial Court which was filed on 22.7.1999 pursuant to order dated 15.7.1999. Now whereas in the original written-statement, para 1 of the plaint was admitted without any demur. In the amended written-statement in response to para 1 of the plaint it was stated as follows:--
This can hardly said to be a case of clerical error.
Now even upon a complete reading of the original written-statement the said admission cannot be said to be the result of a clerical error. It was objected that the value for Court fee is incorrect; that the suit is barred u/S. 11 C.P.C; that the plaintiffs have no cause of action; that the suit is not maintainable in its present form and that the petitioners are estopped by their conduct from filing the suit and even if they had any right, they have waived the same. It was further stated that the petitioners had filed an appeal and they got the relief. Now these objections were followed by the said admission of para 1 of the plaint.
Now the Hon'ble Supreme Court of Pakistan has consistently held that admissions made in pleadings are of very special nature and the party making an admission in the pleadings cannot be allowed to withdraw the same. In the case of Ahmad Khan v. Rasul Shah and others (PLD 1975 SC 311) it was thus observed by their lordships that an admission which is wrong in point of fact or is made in ignorance of legal rights, has no binding effect on the person making it. However that is subject to two well recognized exceptions; First where acting upon a representation on a matter of fact made by one party to the other party, the other party in consequence of said representation had altered its position; and second, admissions in pleadings are also made conclusive u/S. 58 of the Evidence Act, 1872 (Article 113 of the Qanun-e-Shahadat Order, 1984). Now with reference to the matter of amendment in a written-statement which has the effect of withdrawal of an admission, the Hon'ble Supreme Court of Pakistan in the case of Secretary Government (West Pakistan) N.W.F.P. Deptt of Argi & Forests Peshawar & 4 others v. Kazi Abdul Kafil (PLJ 1978 SC 314) notwithstanding the fact that the admission in the written-statement was stated to be incorrect, upheld the orders of the Court below refusing the amendment in the written-statement by observing that it is well settled that admissions made in the written-statement have altogether different legal significance than admissions made generally.
Now coming to the said contention of the learned counsel for the respondent, the same is without any force under Section 105(2) of the C.P.C., all orders passed in a suit can be objected to where a decree is appealed from.
Now coming to the evidence in this case, Muhammad Din petitioner appeared as PW-1 to state that Mst. Bhano was his mother, while Barkat Ali was his father, who had died in India and Faqir Muhammad is his paternal uncle. After the death of Barkat, Mst. Bhano married Fariq Muhammad and respondent Shah Nawaz and Bashir Ahmad were born. In his cross-examination it was suggested to him that the name of his mother is Mst. Ahmade and he denied the said suggestion. Now Shah Muhammad respondent appeared as DW-1 to state that Mst. Bhano was his mother and she contracted only one marriage and that was with his father. Now he stated that in the year 1978, an appeal was filed before AC-Lodhran where Raisham Bibi petitioner has stated that petitioners are the children of Mst. Ahmade. Now in his cross-examination he stated that Barkat Ali was his paternal uncle ( ), he died in India before his birth while Faqir Muhammad, his father died in Pakistan. He admitted that the petitioners are the children of Barkat. He stated that Barkat had married Mst. Ahmade, however, he could not tell the name of the father of the said lady. Now he expressed ignorance as to when Barkat married, he also stated that he has no knowledge of the birth of the petitioners as he had himself not been born at that time. According to him, all these facts were told to him by his mother and uncle. Thereafter he said as follows:--
He admitted that on the death of Bashir Ahmad his brother, he got a pedigree table written on the mutation. This mutation is Ex. P1 and has been proved by Gulzar Ahmad, Patwari as PW-4. In this document, Mst. Bhano is shown to be a widow of Faqir Muhammad as well as Barkat Ali.
(Fozia Fazal) Revision allowed.
PLJ 2006 Lahore 939
Present: Muhammad Jehangir Arshad, J.
KASHIF ALI KHAN etc.--Petitioners
versus
SHER JAN MUHAMMAD etc.--Respondents
Civil Revision No. 2298 of 2005, decided on 23.5.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII, Rr. 1 & 3--Right to cross-examine--Question of adjournment--Determination is as to whether guilty of negligence in not proudcing--Case was adjourned due to non-availability of evidence, or presiding officer was on leave--Last and final opportunity was given to produce evidence on specific date, although evidence was available yet could not be recorded due to ailment of the opposite counsel and case was adjourned and process of adjournment was continued on 4.7.2006--Right to cross-examine was closed--Assailed--Held: Case was adjourned to several dates in a routine manner and without proper application of mind by trial Court in terms of Order XVII, Rule 1 or Rule 3, hence impugned order was not legally justified, specially when there was neither any notice to petitioner giving him last and final opportunity nor respondents were serious for production of evidence--Further held: Trial Court had been a bit slow in passing the order in-question and for that matter trial Court could adjourned the case on payment of costs directing for the petitioner either to make petitioner available on next date of hearing or to come prepare to cross-examine the PWs--Petitioner was allowed to cross-examine subject to payment of costs of Rs. 10,000/- otherwise, the petitioner would not be entitled to cross examine. [Pp. 940, 941, 942 & 943] A, B, C, D & E
Syed Ali Raza Rizvi and Syed Muhammad Javed Rizvi, Advocates for Petitioners.
Mr. Muzzamal Akhtar Shabbir, Advocate for Respondents.
Date of hearing : 23.5.2006.
Order
Kashif Ali Khan who is the defendant before the learned trial Court in a suit for pre-emption against him by Sher Jan Muhammad and others respondents is aggrieved of the order dated 4.7.2005 whereby the learned trial Court closed his right to cross-examine the respondents witnesses.
The facts in brief are that petitioner purchased land measuring 846 kanals 12 marlas through Mutation No. 277 dated 24.5.2003 for a sale price of Rs. 1,21,61,260/-. The said sale was sought to be pre-empted by Sher Jan Muhammad etc. Respondents by way of suit filed on 15.9.2003. The petitioner in the suit filed written statement on 15.10.2003 and the learned trial Court on the basis of the pleadings of the parties framed issues on 23.6.2004 and directed the respondents to produce evidence on 29.7.2004. As the evidence of the respondents was not available on 29.7.2004 the case was, therefore, adjourned to 18.9.2004 and then to 14.10.2004 due to non-availability of evidence but no evidence was produced by the respondents on 14.10.2004 and the case was adjourned to 10.11.2004. From 10.11.2004 the same was adjourned to 25.11.2004 due to absence of respondents evidence and from 25.11.2004 to 18.12.2004 again for the non-appearance of respondents evidence. On 18.12.2004 as the learned Presiding Officer was on leave, hence the case was adjourned to 19.1.2005 for respondents' evidence. On 19.1.2005 against the learned Presiding Officer was on leave and the case was adjourned to 3.2.2005. On 3.2.2005 against the evidence of the respondents was not present and the case was adjourned to 26.2.2005 with warning of last opportunity. Again on 26.2.2005 the respondents failed to produce evidence and the case was adjourned to 8.3.2005 with a rider of last and final opportunity. On 8.3.2005 although the evidence of the respondents was available yet the same could not be recorded due to ailment of the learned counsel for the petitioner and the case was adjourned to 30.3.2005, on which date, the case was adjourned to 16.4.2005 due to incomplete evidence of the Respondent. On 16.4.2005 as the learned Presiding Officer was on leave, hence the case was adjourned to 7.5.2005. On 7.5.2005 only the examination-in-chief of PW-1 was recorded and the case was adjourned to 30.5.2005 for cross-examining PW-1 and recording the statement of the remaining witnesses but since the learned Presiding Officer was on leave on 30.5.2005 the case had to be adjourned to 8.6.2005, on which date, it was again adjourned to 21.6.2005 at the request of the learned counsel for the petitioner. On 21.6.2005 examination of PWs 2, 3 and 4 was recorded and the case was adjourned to 4.7.2005 which is now the crucial date. The learned trial Court passed the following order on 4.7.2005.
Since the learned trial Court through the abovementioned order closed the right of the petitioner to cross-examine the PWs the petitioner has challenged the said order through this civil revision.
It has been argued by the learned counsel for the petitioner that although learned counsel for the petitioner was available on 4.7.2005 yet as the learned counsel refused to cross-examine the PWs the only course open to the learned trial Court was to proceed under Order IX read with Order XVII CPC but under no authority of law learned trial Court could competently pass the impugned order depriving the petitioner from his valuable rights of cross-examine the PWs specially on the question of performance of requisite talabs under the Pre-emption Act. The learned counsel for the petitioner has in support of his contention though relied upon the case of "Nazir Ahmad vs. Collector etc." (1993 Law Notes (Lahore) (93) yet I am afraid that the same has any relevancy in the facts and circumstances of the case, hence it cannot be relied upon.
On the other hand, learned counsel for the respondent/plaintiff by placing reliance on the cases of "Mukhtar Ahmad vs. Mushtaq Ahmad and 2 others" (2004 YLR 392(LHR), "Asad Ullah Khan vs. Senior Civil Judge and another" (1990 CLC 803) (Karachi) and "Haji Muhammad Tayyab vs. Muhammad Sharif Malik" (1996 SCMR 1967) contends that the learned trial Court was justified in passing the impugned order and no illegality or irregularity had been committed, hence this revision petition is liable to be dismissed.
I have considered the arguments of the learned counsel for the parties and has also gone through the record available on the file.
So for as the contention of the learned counsel for the petitioner that as the counsel for the petitioner before the learned trial Court expressed his inability to cross-examine PWs in the absence of the petitioner, hence learned trial Court instead of debarring the petitioners to cross-examine the PWs should have proceeded under Order IX or XVII CPC is concerned the same is not sustainable for the simple reason that unless the Advocate either withdraws his power of attorney or his power of attorney is determined with the leave of Court in term of Order XXX Rule 4(2) CPC, therefore, the inability to cross-examine PWs shown by the learned counsel for the petitioner before the trial Court on the curcial date, viz 4.7.2005 was not only against the said provisions of law but also amounts to mis-conduct on the part of the said counsel. Reliance is placed on "Farman Ali vs. Muhammad Yousaf Ali" (1990 CLC 1936) (LHR). In this view of the matter I am not inclined to agree with the contention of the learned counsel for the petitioners that the learned trial Court had no jurisdiction to pass such an order.
However, the question requiring determination is as to whether in view of the fact that respondents themselves were guilty of negligence in not producing the evidence on several earlier dates as narrated above and specially when the learned trial Court had been adjourning the case for recording evidence of the respondent in a mechanical manner without application of mind the learned trial Court was left with no option but to pass the impugned order. As mentioned above prior to 4.7.2005, the case was adjourned to several dates in a routine manner and without proper application of mind by the trial Court in terms of Order XVII Rule 1 or Rule 3 CPC, hence passing of impugned order was not legally justified on 7.4.2005 specially when there was neither any notice to the petitioner giving him last and final opportunity for the said purpose; nor the respondents were themselves serious for the production of their evidence. Therefore, while maintaining the order of the learned trial Court on legal plain I am not inclined to sustain the same in view of the above mentioned factual position and hold that the learned trial Court would have been a bit slow in passing the said order and for that matter the learned trial Court could adjourn the case on payment of some costs directing the learned counsel for the petitioner either to make the petitioner available on the next date of hearing or to come prepare to cross-examine the PWs. This would have not only saved the parties from further litigation but in the meanwhile even the main suit would have been decided so for.
Resultantly this civil revision is allowed by setting aside the order dated 4.7.2005, the petitioner is allowed to cross-examine the PWs subject to payment of costs of Rs. 10,000/-.
The parties shall appear before the learned trial Court on 5.6.2006 and the learned trial Court shall allow only one opportunity to the petitioner to cross-examine the PWs by fixing a date with a margin of three weeks and it would be the responsibility of respondent to produce PWs for cross-examination on the date so fixed and in case of default having been committed by either party on the said date the learned trial Court shall be at liberty to proceed with the matter strictly in accordance with law. It is made clear that the payment of costs of Rs. 10,000/- shall be condition precedent for cross-examining the PWs and in case if the petitioner fails to pay the cost he would not be entitled to cross-examine the PWs and in such eventuality the order dated 4.7.2005 shall remain in field.
(Rafaqat Ali Sohal) Order accordingly.
PLJ 2006 Lahore 943 [Multan Bench Multan]
Present: Fazal-e-Miran Chauhan, J.
NAZIM-UD-DIN--Petitioner
versus
DISTRICT COORDINATION OFFICER, MUZAFFARGARH & 4 others--Respondents
W.P. No. 663 of 2006, decided on 13.4.2006.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 154 & 190--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Duty to record information--Cognizable offence lodging of report with the police in respect of commission of cognizable offence and filing of a private complaint before Magistrate are two ways to set the criminal law in motion--Police officer is under statutory obligation to record the information about cognizable offence--It is not his discretion to record or not to record it. [P. 947] A & B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 157--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Procedure of investigation--Discretion--Validity--Police officer can refuse to investigate in certain cases where there is no sufficient ground for investigation--Such power did not confuse with the responsibility to record First Information Report--There is no choice in recording the First Information Report though there is discretion in making of investigation or refusing to make it on ground given in code--Petition allowed. [P. 947] C
Rana Muhammad Arshad Khan, Advocate for Petitioner.
Mr. Muhammad Qasim Khan, Assistant Advocate-General for Respondents Nos. 1 to 4.
Ch. Muhammad Anwar ul Haq, Advocate for Respondent No. 5.
Date of hearing : 13.4.2006.
Order
By filing this writ petition, the petitioner has sought a direction in the name of District Police Officer, Muzaffargarh (Respondent No. 2) to proceed against the concerned S.H.O. and to get registered a case against the accused persons.
It is argued by that learned counsel for the petitioner that the petitioner, who in a Town Planner and had carried out a number of schemes in different areas and works in the name and style of Pak Scheme Enterprise Private Limited, Multan. In order to establish a Town, the petitioner approached Haji Abdul Karim (Respondent No. 5), who was owner of land measuring 240 Kanals, situated in Chowk Sarwar Shaheed, Muzaffargrah, and the petitioner struck a bargain of the aforesaid land for a consideration of Rs. 82,00,000/-. The payment was made in presence of Muhammad Jaffar and Roshan Din. When the payment of an amount of Rs. 62,00,000/- was made over to him in different mode in a short span, possession of the aforesaid land was hand over to the petitioner by Respondent No. 5. After taking the possession, a project in the name of Karim Town was launched. The petitioner got prepared map of a Town. The land was developed spending an amount of Rs. 20,00,000/-, thereafter, the petitioner started selling the residential plots to the different people. Haji Abdul Karim, owner of the land, having come to know about the progress in the business of the petitioner, prepared a plan in connivance with employees of the petitioner and in the absence of the petitioner, when he was leaving with ailing health and had become bed ridden, Respondent No. 5 and the employees of the petitioner started selling the plots. The employees of the petitioner in connivance with Respondent No. 5 took away all the articles of the office and forcibly took possession of the residential plots. Respondent No. 5 started exploiting of the petitioner and started demanding huge amount over the above price, agreed with the petitioner or demand that half and a half share of the project, which the petitioner would earn in the business. On refusal of the petitioner, he denied the agreement and also refused to return the stolen articles and restored the possession of the land illegally taken over by him.
On refusal of Respondent No. 5, the petitioner was left with no other option but to approach the District Co-ordination Officer, Muzaffargarh (Respondent No. 1) through an application for registration of case, who marked the same to the District Police Officer, Muzaffargrah (Respondent No. 2) to register an F.I.R. against Respondent No. 5. Respondent No. 2 marked the application to the Deputy Superintendent of Police, Circle Kot Addu, District Muzaffargarh (Respondent No. 3) for necessary action, who neither looked into the matter nor taken any action on the same.
It is argued that under Section 154 Cr.P.C. when commission of a cognizable offence is reported to the S.H.O. concerned, he is bound to register the F.I.R. and thereafter inquire into the matter. The concerned police officer cannot proceed with the case without recording an F.I.R. As per Section 154 Cr.P.C., when an information of a cognizable offence is conveyed to the Officer concerned, he shall reduce the same into writing and read over to the complainant, got it signed by him and the substance of the same shall be entered into a book to be kept by him. This Section lays down the procedure for registration of case on information of a cognizable offence, and for its registration, the mandatory direction shall be kept in mind. He is not supposed to delay the matter. Thereafter, under Section 157 Cr.P.C., he is required to send the copy of the same to the Magistrate empowered to take cognizance, and if he feels that he is empowered to investigate the case under Section 156 Cr.P.C., he shall proceed with the investigation. Further argues that under Section 155 Cr.P.C., he is required to look as to whether the offence, so reported to him, is cognizable or non-cognizable. If offence is non-cognizable, he shall enter in a book to be kept into Police Station and report the matter to a Magistrate seeking permission to investigate the cases. Argues that under Section 156 Cr.P.C., Investigating Officer Incharge of Police Station may without the order of a Magistrate, investigate any cognizable case, which the Court having jurisdiction. Section 157 Cr.P.C. lays down the Procedure, where cognizable offence suspected. Also argues that after Rule 24 of Police Rules, 1937, Police Officer on receiving the information whether cognizable or non-cognizable, shall record the same. Section 154 Cr.P.C. has been reproduced in sub-rule (3) of Rule 24, meaning thereby while framing Police Rule, 1937, the spirit of Section 154 Cr.P.C was kept in mind and rules framer were conscious of the duty of Police Officer fixed by the Act of 1898 (Criminal Procedure Code). Further argues that column (2) of sub-rule (4) of Rule 24 casts a duty upon the Police Officer that he shall record his reasons for suspection that such offence has not been committed. It is a clear discretion of the S.H.O. to inquire into the case and give reasons. Further argues that on receipt of station diary, if the superior Officer agrees with the report, files the same, if he differs with the opinion and may on receipt of station diary, shall pass an order for investigation of the case. Section 157 Cr.P.C. cannot be substituted and is mandatory as the word "shall" is used. Finally argues that the S.H.O., being the Incharge of the Police Station, is duty bound to record the statement of the informer. The word "information" is defined in Section 154 Cr.P.C. (relied upon Sreedhara Marar Raman Pillay and others v. State of Kerala [AIR 1965 Kerala 196]). The phrase "Information received" used in Section 157 Cr.P.C. refers to information furnished in Section 154 Cr.P.C. Reliance has been placed on Nandamuri Anandayya's case [S.C 25 Ind. Cas. 630 (SC) and Jagdami Pershad Singh vs. Mahadeo kandoo and others [S.C 5 Ind. Cas. 693]. Rule 24.4 ibid. deals with powers of investigation and not with recording of F.I.R., given by a complainant. Rules 24.1 and 24.4 do not vest Police Officer with powers to refuse to record the F.I.R. under Section 154 Cr.P.C. In Section 154 Cr.P.C. and Rule 24.1, the use of the word "shall" makes it incumbent upon the Police Officer to record the F.I.R. on the information of a cognizable offence.
Conversely, Ch. Muhammad Anwar ul Haq, Advocate for Respondent No. 5 argues that there is no cavil to the proposition that on information of the commission of cognizable offence, Police Officer concerned is duty bound to reduce the same into writing and then proceed as provided under Section 154 Cr.P.C. Section 157 Cr.P.C. is independent power of the Police Officer and in such a case, registration of F.I.R. is not necessary. He shall record a report under Section 157 Cr.P.C. and copy of the same would be sent to the Illaqa Magistrate, having the jurisdiction. Receipt of information is not a condition precedent in Section 157 Cr.P.C, which refers to Lord Chancellor (Viscount Simon), Lords Porter, Simonds and Goddard and Sir Madhavan Nair Emperor v. Khawaja Nazir Ahmad (AIR 1945 PC 18) and State of Uttar Pradesh v. Bhagwant Kishore Joshi [AIR 1964 SC 221]. Further argues that the step taken by him under Section 157 Cr.P.C. recording of F.I.R. is not condition precedent and for investigation under Section 157 Cr.P.C, recording of F.I.R. is not necessary. Reliance is placed on Faiz Muhammad vs. The State [PLD 1979 Karachi 513], M. Bashir Saigol and another vs. The State and another [PLD 1964 Lahore 148] and Ghulam Muhammad alias Gaman vs. The State [PLD 1981 FSC 121]. Except when Section 157 Cr.P.C. is invoked, investigation is to be followed and not to proceed the registration of F.I.R. pursuant to Section 154 Cr.P.C. Relied upon Islamuddin vs. P.O. Sindh and others [1995 MLD 372 Karachi (DB)]. Also argues that the information in Section 155 Cr.P.C. is totally different than the information in Section 157 Cr.P.C. It is only when information of a cognizable offence is given, F.I.R. shall be recorded in Section 154 Cr.P.C. and the investigation under Sections 156 and 157 Cr.P.C. shall be conducted, when the offence is non-cognizable, information is to be recorded in a diary kept at the Police Station and conducting of investigation is not must without permission of the Magistrate. The writ petitioner and the respondents are bound by the compromise effected between them before the Civil Court. It is the purely a civil dispute. No criminal act or offence has been committed. Further argues that the petitioner can proceed under Section 51 of Specific Relief Act and ask for restoration of its possession. The writ petition is not maintainable and the petitioner has an adequate alternate remedy of filing a private complaint under the law.
The learned AAG argues that it was necessary to the S.H.O. Respondent No. 4 to first record information and then proceed under Section 157 Cr.P.C. Reliance has been placed on Mst. Shehnaz vs. S.H.O., Sariab, Police Station, Quetta and 2 others (2003 YLR 1941 (Quetta)] and Muhammad Hafeez vs. Special Judge, Anti-Terrorism Court, Mirpurkhas and 2 others [2001 P.Cr.L.J 199 (Karachi)]. When there are cognizable and non-cognizable offence, then the whole matter would be tried as non-cognizable offence and the F.I.R. must be recorded on the information received.
I have heard the learned counsel for the parties, perused the relevant documents placed on record and the report & parawise comments submitted by the S.H.O. Respondent No. 4. The code has divided the offences into two classes, cognizable and non-cognizable. In the first category all those offences for which a police officer, may arrest without warrant and in the later case, he was not competent to arrest without warrant. The nature of class of offences is to be determined in accordance with the provision made in the second schedule appended with the Code. In order to be a cognizable case, it is enough that if one or more of the offences are cognizable.
In order to set the criminal law in motion, two modes have been provided in Criminal Procedure Code; one by way of lodging of report under Section 154 Cr.P.C. with the Police in respect of commission of a cognizable offence and the other by filing of a private complaint before a Magistrate as provided by Section 190 of the said Code.
Section 154 Cr.P.C. provides that substance of every information relating to the commission of a cognizable offence, if given to an Officer Incharge of the Police Station, shall be entered in a book, to be kept for such purposes in such terms as the Provincial Government may prescribe the information.
So far as non-cognizable offence is concerned, Section 155 Cr.P.C. provides that substance of such information, shall be recorded in the book ( ) and informant be referred to the Illaqa Magistrate.
After recording information under Section 154 Cr.P.C. by the Police Officer Incharge Investigation, the matter under Sections 156 and 157 Cr.P.C. lay down the procedure, where cognizable offence is suspected. If he under proviso (b) to sub-section (1) of Section 157 Cr.P.C. and Sub-section (2) to Section 157 Cr.P.C, is of the view that there is no sufficient ground to investigate, he after recording reasons to that effect in the report, can decline to investigate the case, but it is mandatory for him to notify the information to the fact that he will not investigate the case or the same will not be investigated. From the perusal of the scheme provided in Chapter XIV, Part V, under Section 154 Cr.P.C., a Police Officer is under a statutory obligation to enter/record the information, relating to cognizable offence in the prescribe register. It is not his sweet will to record or not to record it. The question whether information is correct, depends on the investigation, which the Police Officer is required to conduct under Section 157 Cr.P.C. The guarantee of the correctness of the information/F.I.R. is ensured by Section 182 Cr.P.C. if the report given under Section 154 Cr.P.C. was incorrect, the informant shall be liable to punishment. The Police Officer cannot refuse to register a case where a cognizable offence is made out. The Police Officer failing to register such case, renders himself, liable to be dealt with by his superior for negligence of duty. The only requirement of law is that the F.I.R. shall contain information so as to commission of cognizable offence. Section 154 Cr.P.C. deals with the recording of the information of cognizable cases and that every information relating to the commission of a cognizable offence, is given to the Incharge Police Station, who shall reduce the same into writing and its substance shall be entered in the book kept in the Police Station.
Provisions of Section 154 Cr.P.C. is mandatory as it leaves no scope for exercise of any discretion by the Police Officer concerned in recording the first information report or in refusing to record the same.
The procedure to be adopted by the Police Officer where he suspects commission of any cognizable offence is provided in Section 157 Cr.P.C. These provisions have to be read alongwith provisions of Section 156 Cr.P.C. which authorizes the Officer Incharge of a Police Station to investigate without order of a Magistrate any cognizable offence, where a Court having jurisdiction over the local area within the provisions of Chapter XV Cr.P.C. relating to the place of inquiry or trial. Section 157 Cr.P.C. provides that if, from information received or otherwise, an Officer Incharge of a Police Station has reason to suspect the commission of an offence which he is empowered under Section 156 Cr.P.C. to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizable of such offence upon a police report, and shall proceed in person or shall depute one of his subordinate officers not being below such rank as the Provincial Government, may, by general or special order, prescribe in this behalf to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender. This provision is subject to two provisos. The first proviso authorizes the officer in charge not to proceed in person or depute a subordinate officer to make an investigation on the spot when the information as to the commission of any offence is given against any person by name and the same is not of serious nature. The second proviso authorizes him not to investigate the case if there is no sufficient ground for entering on an investigation.
Provisions of Sections 154 Cr.P.C. and 147 Cr.P.C. are different in scope. The section which is applicable to a case where the First Information Report is given by some other person and the action is not taken suo motu by the officer in charge of a police station, would be Section 154 Cr.P.C. which makes it incumbent upon such officer to reduce in writing the information given or get it so reduced and then to enter it in the book kept for this purpose.
Again Rule 24.4 deals with the powers of investigation and not with the recording of the First Information Report given by a complainant. In this view of the matter, it cannot be said that these rules vest the police station officer concerned with any power to refuse to record the F.I.R. of a cognizable offence as required by Section 154, Cr.P.C. The section as well as Rule 24.1. uses the word "shall" to making it incumbent upon the police officer to record the F.I.R. Learned counsel for the petitioner tried to make distinction that under Section 157 Cr.P.C. the Police Officer can refuse to record the F.I.R. and enter the same in the report, if according to him no offence is made out.
Sections 154 and 157 Cr.P.C. and deal with different contingencies. The former section provides for the recording of the F.I.R. at the instance of a complainant while Section 157 deals with the procedure for investigation of any cognizable offence. The latter provision leaves it to the judgment of the relevant police officer to refuse to investigate in certain cases, where for example, there is no sufficient ground for entering on an investigation. But this power should not be confused with his responsibility to record the First Information Report. He has no choice in the record of the First Information Report though he has a discretion in the making of investigation or refusing to make it on the grounds given in Section 157 Cr.P.C.
For what has been discussed above, this writ petition is allowed and the S.H.O., Police Station, Sarwar Shaheed, Muzaffargarh (Respondent No. 4) is directed to record the information under Section 154 Cr.P.C. and thereafter to proceed in accordance with law.
(Fozia Fazal) Petition allowed.
PLJ 2006 Lahore 949 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
MUNAWAR HUSSAIN--Petitioner
versus
MEMBER (JUDICIAL-V) BOARD OF REVENUE, PUNJAB and 4 others--Respondents
W.P. No. 313 of 2003, heard on 20.10.2005.
(ii) Land Revenue Rules, 1968--
----R. 18--Constitution of Pakistan, 1973, Art. 199--Lumberdar was dismissed due to conviction and sentence--Appointment of new Lumberdar--Petitioners and respondent filed applications but respondent withdrew in favour of Petitioner--Appointment of Lumberdar was assailed--Revision was also dismissed--Assailed--Validity--Objection of respondent that petitioner was not fit person and respondent was better person because, petitioner had stood convicted--There was no allegation that respondent owned more land than the petitioner or that respondent had better educational qualification and had some other distinction to place him at a higher pedestal than petitioner for such job--Case remanded. [Pp. 951] C & D
(ii) Land Revenue Rules, 1968--
----R. 18--Constitution of Pakistan, 1973, Art. 199--Appointment of petitioner as Lumberdar was set aside by E.D.O. due to moral turpitude--Revision was dismissed by MBR--Assailed--Validity--When a Lumberdar has been convicted and sentenced for a offence involving moral turpitude that it is to be termed as a disqualification--Conviction and sentence of petitioner under Section 302 PPC was set aside and he was sentenced under Section 307 PPC--No moral turpitude was involved as it was a fight between groups of persons and without any previous enmity. [P. 951] A & B
Mr. Muhammad Arif Alvi, Advocate for Petitioner.
Mian Arshad Lateef, Advocate for Respondent No. 3.
Nemo for other Respondents.
Date of hearing: 20.10.2005.
Judgment
On the death of the permanent Lumberdar of Chak No. 150/EB, Tehsil Burewala, District Vehari, the file for appointment of a new Lumberdar, was opened. The petitioner and Respondents Nos. 4 and 5 filed application, but Respondents Nos. 4 and 5 withdrew in his favour. The proceedings were completed and the file was sent up to the DO (R), Vehari with the recommendation that the petitioner be appointed as a permanent Lumberdar. The DO (R), Vehari conducted his proceedings and vide order dated 18.4.2002 appointed the petitioner as a permanent Lumberdar. Against this order, Respondent No. 3 filed an appeal which was heard by the EDO (R), Vehari, who allowed the same on 5.8.2002 and recommended the case back to the DO (R) for afresh decision after holding that the petitioner is not competent to be appointed as Lumberdar being a convict in a murder case. A revision filed by the petitioner has been dismissed by Respondent No. 1 on 30.11.2002.
Learned counsel for the petitioner argues with reference to Rule 18 of the Land Revenue Rules, 1968 that it is only a sentence upon conviction in an offence involving moral turpitude, which leads to dismissal of a Lumberdar. He also draws my attention to the judgment of a Division Bench of this Court in Crl. Appeal No. 35/1982 whereby the conviction and sentence of the petitioner under Section 302 PPC was set side and he was convicted under Section 307 PPC and sentenced to undergo seven years R.I. with direction to pay a fine of Rs. 250/- or in default of payment thereof to further undergo S.I for 15-days.
Learned counsel for the Respondent No. 3 finds himself unable to answer the said contention but insists that since the application of his client was not considered, the remand order cannot be interfered with in the W.P. 4. Learned counsel for the petitioner rejoins to state that no application was filed within the time fixed by the DDO (R) and it was only upon completion of proceedings when the case was fixed for orders of Collector that the application was filed.
I have gone through the file of this case. Now, the EDO (R) proceeded to dismiss the petitioner or to set aside the appointment on the ground that he was convicted under Section 302 PPC. Now, Rule 18(1)(a) of the said Rules laid down that it is only when a Lumberdar has been convicted and sentenced for an offence involving moral turpitude that it is to be termed as a disqualification resulting in his dismissal. Now, the said judgment in Crl. Appeal No. 35/1982 discloses that their Lordships set aside the conviction and sentence of the petitioner under Section 302 PPC and convicted and sentenced him under Section 307 PPC as stated above by the learned counsel for the petitioner. I also find that no moral turpitude was involved as it was a fight between two groups of persons and without any previous enmity whatsoever.
Now, going to the said contention of Mian Arshad Lateef learned counsel for Respondent No. 3, I find that the proceedings commenced and 2.3.2001 was the last date for filing the application. The proceedings were conducted by the D.D.O (R) and he prepared his report on 14.12.2001, which was sent up to DO(R) on 27.12.2001. Now, Respondent No. 3 filed the application on 28.2.2002. The order of appointment was passed on 18.4.2002. Now, I find that the only objection raised by the Respondent No. 3 was that the petitioner is not a fit person and that he is better person because the petitioner stands convicted as alleged by him. There is no allegation that he owns more land than the petitioner or that he has better educational qualification and has some other distinction to place him at a higher pedestal than the petitioner for the said job. This being so, I am not inclined to up-hold the remand of the case. The W.P. is accordingly allowed, the impugned orders dated 30.11.2002 & 8.5.2002 of Respondents Nos. 1 and 2, respectively are declared to be without lawful authority and are accordingly set aside. No orders as to costs.
(M. Ajmal Rana) Petition allowed
PLJ 2006 Lahore 951
Present: Muhammad Muzammal Khan, J.
Mst. BARKAT BIBI--Petitioner
versus
ARIF HUSSAIN and 4 others--Respondents
C.R. No. 268 of 2006, decided on 18.5.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Specific Relief Act (I of 1877), S. 42--Entitlement of inheritance--Suit for declaration--Deprived of right of inheritance--Dismissal of suit by Courts below--Assailed--Validity--Transfer of entire estate in the name of widow in presence of three daughters clearly proved that said mutation was attracted under Customary law and none else--If the petitioner claimed inheritance pleaded some special custom under which petitioner was entitled to inheritance but her plaint is absolutely silent about it--Plaintiff was aware of her difficulties of getting share of inheritance--On the death of widow, property reverted back to the heirs of husband, who was real brother of the propositus--Scan of record and impugned concurrent judgments revealed that controversy was correctly put to rest according to inheritance evidence on the file and law applicable without committing any illegality/irregularity in terms of Section 115 CPC, in absence of which no interference by High Court is permissible, under law--No case of interference by High Court was made out, petition dismissed. [Pp. 954 & 955] A, D, E, F, G & H
(ii) Customary Laws--
----Entitlement of inheritance--Under Customary law a widow used to inherit her husband till her re-marriage/death for maintenance purpose and in case of termination of limited interest of the widow, property held by her used to revert back to the male heirs of last male holder, who had been alive on his demise, on the principle of nearer excludes the remoter. [P. 954] C
(iii) Punjab Muslim Personal Law (Shariat) Application Act, 1948--
----S. 2--Civil Procedure Code, (V of 1908), S. 115--Law of inheritance earlier to promulgation of Shariat Application Act, 1948--All the agriculturist tribes of Punjab were governed in the matters of inheritance/succession by Customary law. [P. 954] B
PLD 1978 Lahore 673, PLD 1963 SC 543, PLD 1967 SC 200, Rattigal's Customary Law Para-9 and Question No. 38 of the Customary Law of Gujranwala and Sialkot districts relied.
Ch. Nisar Ahmad, Advocate for Petitioner.
Date of hearing : 18.5.2006.
Order
Instant civil revision assailed jugments/decrees dated 18.4.2001 and 7.2.2004 passed by the learned Civil Judge and learned Additional District Judge, Wazirabad, District Gujranwala, whereby petitioner's suit and appeal were dismissed, respectively.
Precisely, relevant facts are that Mst. Barkat Bibi petitioner filed a suit for declaration to the effect that she being daughter of Muhammad Khan was entitled to inherit his estate on his death on 2.1.1936 but was deprived of her this vested right. She further pleaded that her father Muhammad Khan was succeeded by a widow and three daughters namely, Mst. Barkat Bibi, Mst. Aisha Bibi and Mst. Hussain Bibi. According to her claim, one of the daughters of Muhammad Khan namely Mst. Hussain Bibi died some time after the death of her father, whereas his two other daughters are still alive but they were deprived of their right of inheritance, as the entire estate was mutated in the name of his widow vide Mutation No. 232 dated 11.5.1936. She challenged in her suit inheritance Mutation No. 265 sanctioned on death of Mst. Fatima Bibi widow of Muhammad Khan, whereby property was transferred in the name of Rehmat Khan, predecessor of the respondents. She claimed that it was wrongly mentioned in the mutation that both the daughters of Muhammad Khan were married whereas petitioner claimed to be of 9 years of age at that time. Petitioner prayed for a decree to the extent of 7/24 share in the landed property of her father under Islamic Law by adjugment of Mutation No. 345 dated 19.8.1951, sanctioned in favour of the respondents on death of Rehmat Khan.
Respondents being defendants in the suit, contested the same by filing their written statement, wherein it was asserted that at the time of death of Muhammad Khan, parties being Jat by caste, were governed by the then Customary Law of the Punjab where-under on the death of propositus, estate was to be given to the widow till her re-marriage/death for her subsistance. Respondents further pleaded that under the customary law followed by the last male owner and his family, female issues were not given any share in inheritance. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. Learned Civil Judge, seized of the matter, after doing the needful, dismissed the suit of the petitioner vide judgment/decree dated 18.4.2001.
Petitioner aggrieved of the decision of the trial Court, filed an appeal before the learned Additional District Judge but remained unsuccessful as the same was dismissed on 7.2.2004. Petitioner thereafter filed instant revision petition with the relief, noted above.
I have heard the learned counsel for the petitioner and have examined the record, appended herewith. Petitioner in her suit had challenged Mutations Nos. 232 dated 11.5.1936, 265 dated 9.12.1940, 332 and 345. Submission of the learned counsel that the petitioner being daughter of Muhammad Khan deceased was entitled to her Sharai share under Islamic Law, which was being followed by her father, was deprived of this right, has not impressed me for the simple reason that Mutation No. 232 dated 11.5.1936 was sanctioned in the exclusive name of Mst. Fatima Bibi widow of Muhammad Khan, in presence of his three real daughters. This mutation carried an entry in column No. 15 that Muhammad Khan deceased died leaving behind a widow and three daughters. Transfer of entire estate of Muhammad Khan in the name of widow in presence of three daughters clearly proved that this mutation was attested under Customary Law and none-else. Learned counsel for the petitioner could not respond to query of the Court that if the parties being Jat of Punjab were not governed by Customary Law, applicable at that time, then under what law of inheritance Mst. Fatima Bibi got the entire estate of Muhammad Khan. Mutation No. 232 also proved that property left by Muhammad Khan was given to Mst. Fatima Bibi as his widow. Law regarding inheritance earlier to promulgation of Punjab Muslim Personal Law (Shariat) Application Act, 1948 is firmly settled by this time to the effect that all the agriculturist tribes of Punjab were governed in the matters of inheritance/succession by Customary Law. Applicability of this law of inheritance to the tribe of Jats was earlier determined by this Court in the case of Ghulam Haider and 5 others vs. Karamat (minor) and another (PLD 1978 Lahore 673) by relying on a judgment by the Honourable Supreme Court in the case of Ghulam Akbar and others vs. Mst. Irshad Begum and others (PLD 1963 SC 543). While forming this view I have facility to refer to Rattigal's Customary Law Para-9 and Question No. 38 of the Customary Law of Gujranwala and Sialkot districts. In another case of Ihsan Ellahi and others vs. Hukam Jan reported as (PLD 1967 S.C. 200), it was mandated by the Honourable Supreme Court that in the agriculturist families of Punjab rules of Customary Law were being applied to resolve questions of succession despite promulgation of Punjab Muslim Personal Law (Shariat) Application (Amendment) Act, 1951.
There is no cavil about the proposition that under Customary Law a widow used to inherit her husband till her re-marriage/death for maintenance purpose and in case of termination of limited interest of the widow, property held by her used to revert back to the male heirs of last male holder, who had been alive on his demise, on the principle of nearer excludes the remoter. It was also general custom of the Punjab that daughters were not being given any share in inheritance and the agricultural family in which some special custom of giving share of inheritance to the daughters was acknowledged, those families were required to plead and prove such special custom. In the instant case, Muhammad Khan was undeniably Jat by caste and was governed by general custom of the Punjab, as is evident from his mutation of Inheritance No. 232 dated 11.5.1936. Now if the petitioner claimed inheritance in the year 1936, she must have pleaded some special custom under which she was entitled to inheritance but her plaint is absolutely silent about it. She while in the witness box as PW.1 admitted that her mother to the exclusion of all the three daughters, got the estate of her father. According to her deposition, she was of the age of 9 years at the time of death of her father and by calculation she must have gained majority by or before the year 1945 but she opted to file suit in hand on 12.11.1997 i.e. after 60 years, which shows that she was aware of her difficulties of getting any share of inheritance in the estate of her father. Petitioner in support of her case could have produced some mutation from her family showing that daughters used to inherit inspite of prevailing of general principle of following Customary Law by the Jats but no such mutation or record was brought on the file. On death of Mst. Fatima Bibi, property held by her, reverted back to the heirs of her husband namely Rehmat Khan, who was real brother of the propositus. Rehmat Khan also died in the year 1950 and his mutation of Inheritance No. 345 dated 19.8.1951 was sanctioned in favour of his heirs, which also included property coming to his share from his brother Muhammad Khan but petitioner did not agitate, though on account of Shariat Application Act daughter of Rehmat Khan namely Mst. Rasool Bibi was given 1/3 share in the estate of Rehmat Khan. Scan of record and impugned concurrent judgments revealed that controversy was correctly put to rest according to the evidence on the file and the law applicable without committing any illegality/irregularity in terms of Section 115 CPC, in absence of which no interference by this Court is permissible, under law.
For the reasons noted above, no case for interference by this Court was made out and consequently, instant petition, being devoid of any merit, is dismissed in limine.
(Muhammad Ajmal Rana) Petition dismissed
PLJ 2006 Lahore 955 (DB)
Present: M. Bilal Khan & Sh. Azmat Saeed, JJ.
COLLECTOR OF CUSTOMS, CUSTOMS HOUSE, LAHORE--Petitioner
versus
MUHAMMAD YOUSAF AMIN and another--Respondents
C.M. No. 240-C of 1997, decided on 24.3.2006.
Customs Act, 1969 (IV of 1969)--
----S. 196 (3)--Custom authorities took into custody 4000 tolas of gold--FIR was lodged against respondents--After issuance of show-cause notice confiscated the gold and imposed penalty--Appeal accepted--Assailed--Validity--Respondents were acquitted by the Special Judge Customs--No appeal or other proceedings have been initiated by Revenue against the said acquittal--Attention of the counsel for the Revenue drawn to the order in original dated of tribunal whereby gold has been released against (Forms-G) which did not specifically mention marks and numbers, Counsel conceded that the goods had been released against (Form G) which were legally similar to the (Forms-G) relied upon and produced by the respondents--Tribunal could not be said to be perverse--Sole contention of the counsel for the revenue that the (Forms-G) in question did not relate to the gold seized, examined in the facts and circumstances of the case to raise a pure factual controversy--No question of law arises requiring adjudication by the Court--Petition dismissed. [Pp. 957 & 958] A & B
Mr. Izhar-ul-Haq Sheikh, Advocate for petitioner.
Mian Abdul Ghaffar, Advocate for Respondents.
Date of hearing : 24.3.2006.
Order
Sh. Azmat Saeed, J.--This petition under Section 196 (3) of the Customs Act, 1969 arises from the judgment dated 13.5.1996 passed by the Customs, Central Excise and Sales Tax Appellate Tribunal whereby the appeal filed by the respondents was accepted.
Brief facts leading to the filing of this petition are that the custom authorities intercepted a Car parked in the Parking Lot of Lahore International Airport on 7.10.1992 and took into custody the respondents present in the Car who had arrived from a PIA Flight from Karachi. During the search of the vehicle 4000 tolas of gold were recovered (4160 tolas as per the contention of the respondents). The respondents claimed that the gold in question had been lawfully imported into Pakistan and the requisite duty had been paid and in support of the contentions produced 16 Certificates (Forms-G), 14 of which were issued by the Commercial Section of the Consulate General of Pakistan, Dubai and two by the Pakistan High Commission, Singapore. Apparently the said Forms-G did not mention any specific marks and numbers of the gold bars. Hence, the same were sized and F.I.R. No.67 dated 8.10.1992 was lodged with Police Station Sarwar Road, Lahore Cantt under Section 156(1) item 89 and Sections 157 and 178 of the Customs Act, 1969 against the respondents.
Subsequently a show cause notice dated 2.2.1993 was issued to Respondents Nos. 1 and 2 calling upon them to explain whey the gold in question should not be confiscated and penal action under the Customs Act, 1969 as well as the Import and Export (Control) Act be not taken. Respondents Nos. 1 and 2 submitted their reply dated 17.3.1993 reiterating that the gold in question had been lawfully imported through the aforementioned Forms-G and duty in respect thereof paid. The Collector of Customs seized of the matter, after hearing the parties vide order dated 26.8.1995 issued on 27.8.1995 directed the confiscation of the gold, and also imposed a further penalty of Rs. One million each on Respondents Nos. 1 and 2. The Car in question was allowed to be released subject to payment of Rs. 25,000/- in lieu of confiscation. Aggrieved the Respondent No. 1 and filed an appeal before the Customs, Central Excise and Sales Tax Appellate Tribunal which was accepted vide order dated 12.5.1996 and the order in original impugned before the Tribunal was set aside.
It is contended by the learned Counsel for the Revenue that the Certificate (Forms-G) produced and relied upon by the respondents do not contain any marks and numbers of the gold purported to be imported thereunder, hence the said Certificates (Forms-G) do not tally with the gold seized from the respondents.
The learned Counsel for the respondents has controverted the contentions raised on behalf of the Revenue. It is contended by the learned Counsel for the respondents that in fact 4160 tolas of gold was seized not 4000 as alleged by the Revenue. The said gold had been lawfully imported in Pakistan through the Certificates (Forms-G) presented by the respondents at the earlier. The said Forms-G issued by the Commercial Section of the Consulate General for Pakistan in Dubai which had duly authenticated and verified the same vide letter dated 20.12.1993. The said Forms-G contained all necessary particulars including name, parentage, Passport number and quantum of gold sought to be imported thereunder. It was the duty of the Issuing Officer at the Consulate to mention any further marks and number of the gold bars and the respondents cannot be penalized for any inaction of such Officer. It was further contended that even the receipt of the Jeweller in Dubai from whom the gold was purchased was presented to the authorities. Adds that admittedly the duty in respect of the gold in question had been paid and receipts produced before and accepted by the department. The learned Counsel further adds that the quantum of duty payable is only 3 percent of the import value, hence there could be no occasion of any person running the risk of smuggling the gold. It is further contended that it was the consistent practice of the department that legally identical Forms-G, wherein marks and numbers were not mentioned in detail, have been accepted. Further submits that pursuant to the F.I.R. registered against the respondents criminal proceedings were initiated before the Special Judge Customs wherein the respondents have since been acquitted vide order dated 4.6.1994. Adds that no question of law, therefore, arises requiring any adjudication by this Court.
On Court's query, the learned Counsel for the Revenue has informed us that the respondents have in fact been acquitted by the Special Judge Customs from the charge of smuggling of the said gold. He has further informed us that no appeal or other proceedings have been initiated by the Revenue against the said acquittal. With reference to the consistent practice of the department, attention of the Counsel for the Revenue was drawn to the order in original dated 22.5.1993 mentioned in the order of the Tribunal whereby gold had been released against Forms-G which did not specifically mention marks and numbers, the learned Counsel for the Revenue conceded that in fact the goods had been released in the said case against Forms-G which were legally similar to the Forms-G relied upon and produced by the respondents. The learned counsel further informed the Court that the department had not filed any appeal or other proceedings challenging the said order. It is also not disputed by the learned Counsel for the Revenue that 10 tolas gold bars do not bear any seriatim numbers which may be unique to each bar and only the purity in percentage points is mentioned along with the name of one of the few makers thereof. In the circumstances the decision of the Tribunal cannot be said to be perverse. The sole contention of the learned Counsel for the Revenue that the Forms-G in question do not relate to the gold seized, examined in the facts and circumstances of the case mentioned above attempts to raise a pure factual controversy. No question of law arises requiring adjudication by this Court. In this view of the matter this petition being without any merit and is hereby dismissed.
(M. Ajmal Rana) Petition dismissed.
PLJ 2006 Lahore 958
Present: Muhammad Muzammal Khan, J.
PARVEZ BASHIR WARRAICH and another--Petitioners
versus
ELECTION TRIBUNAL FOR GUJRAT DISTRICT/DISTRICT & SESSIONS JUDGE, MANDI BAHA-UD-DIN and 4 others--Respondents
W.P. No. 2652 of 2006, decided on 15.5.2006.
(i) Constitution of Pakistan, 1973--
----Art. 199--Punjab Local Government Election Rules, 2005, R. 38--Re-counted of ballot papers--Recount of ballot papers was firmly settled by said time to effect that the same could not be ordered unless it is justified on the basis of evidence/material on the file. [P. 961] C
1999 SCMR 299; 2002 SCMR 1523; 2002 SCMR 1995; 2003 SCMR 1313 and 2005 SCMR 1699, ref.
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O.XXXIX, Rr. 1 & 2--Becomes operative/effective/binding--There was no cavil about the proposition that prohibitory injunctions issued by the sub-ordinate Courts under Order XXXIX Rules 1 and 2 C.P.C. become operative on service of the persons to whom those are directed--Stay order issued by the superior judiciary of Pakistan including High Court and Supreme Court, those become operative the moment these are passed. [P. 962] E
(iii) Punjab Local Government Election Rules 2005--
----Rr. 36(6)(ii) & 38(3)--Constitution of Pakistan, 1973, Art. 199--Petitioners declared returned candidates for the seat of Nazim and Naib Nazim by the Returning Officer--Election petition before the Election Tribunal--Order regarding re-count of ballot papers passed by Presiding Officer of Election Tribunal--Assailed--Validity--No controversial that except statements of AWs, there was no other material on the rule in support of re-count order by the Election Tribunal--Statements of these witnesses even if accepted to be true might have furnished some basis for re-poll of votes but did not justify re-counts of ballot papers especially when petitioners had not been granted an opportunity of leading evidence in rebuttal--Order of re-counting by the Election Commission stood rescinded through a general notification requiring the parties interested to approach the Election Tribunal already notified where re-count of ballot papers could not be claimed as right and the same, was not be in light of judgments by Supreme Court--Scan of record and impugned order clearly depict that order of re-counting was opposed to the canons firmly settled and no such exercise could have been undertaken under the garb of order passed by Election Commission which was subsequently recalled by it through notification--Impugned order was patently unwarranted, illegal and unauthorised and in exercise of re-count of ballot papers was also unjustified and in the circumstances of the present case, impugned order cannot be allowed to be sustained--Petition accepted. [Pp. 961, 962 & 963] A, B, D, F & G
Mr. Azam Nazir Tarar, Advocate for Petitioner.
Mr. Saqib Akram Gondal, Advocate for Respondents Nos. 2 & 3.
Nemo for other respondents.
Date of hearing : 15.5.2006.
Order
Instant constitutional petition challenged order dated 14.3.2006 passed by the learned District and Sessions Judge, Mandi Bahauddin with the powers of Election Tribunal, to be declared illegal, void and of no legal consequence, whereby recount of ballot papers was ordered and Returning/Treasury Officers were directed to arrange production of polling bags.
Precisely, relevant facts are that writ petitioners being joint candidates for the office of Nazim/Naib Nazim of Union Council-65 (Shadiwal) District Gujrat, contested the recent local bodies elections held in August 2005 and as per result consolidated by the Returning Officer in Form-XVI prepared under Rule 38 of the Punjab Local Government Election Rules, 2005, were declared successful by securing 2731 valid votes. Opponents of the petitioners (Respondents Nos. 2 and 3) secured 2644 votes, whereas the other set of contestants (Respondents Nos. 4 and 5) could only secure 165 votes. This result was transmitted to the District Returning Officer and to Election Commission of Pakistan for notification under the relevant provisions of the Ordinance, 2001.
Respondents Nos. 2 and 3, being aggrieved of the result of the election, approached the Election Commission of Pakistan praying recount of votes and successfully got an order of recount but earlier to its implementation, the same was recalled through a general notification dated 3.9.2005, mainly on the ground that after notification of results the only available forum for recount of ballot papers was the Election Tribunal. On the basis of this notification the Returning Officer vide order dated 14.9.2005 consigned the reference sent to him, in this behalf.
Respondent No. 3 thereafter filed an election petition before the notified Election Tribunal (Respondent No. 1) seeking recount of ballot paper etc. which was allowed to be withdrawn vide order dated 14.9.2005 as certain legal formalities were not observed and Respondent No. 3 was permitted to file fresh election petition. Then Respondents Nos. 2 and 3 on 21.9.2005 filed fresh election petition, wherein they raised certain corrupt/illegal election practices and prayed for fresh polls.
Petitioners being respondents in the election petition contested the same by filing their written replies, controverting the allegations in the election petition besides raising certain preliminary objections. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. Respondents Nos. 2 and 3 produced two witnesses (AW.1 and AW.2) whereafter they moved an application for recount of ballot papers under the orders of the Election Commission of Pakistan dated 30.8.2005 but this prayer was opposed by the petitioners, relying on notification dated 3.9.2005.
The learned Presiding Officer of the Election Tribunal after hearing the parties on application of Respondents Nos. 2 and 3 directed recount of ballot papers and required the Returning Officer/Treasury Officer to arrange production of concerned polling bags on the next date i.e. 22.3.2006. Petitioners being aggrieved of the order of recount, filed instant constitutional petition with the relief, noted above. This petition was listed for urgent hearing on 22.3.2006, and a pre-admission notice was ordered to be issued to Respondents Nos. 2 to 5 and order of recount was suspended, allowing the proceedings on the election petition to continue. Order of suspension of recount was required to be conveyed to the Election Tribunal telephonically at the expense of the writ petitioners. Respondents in response to notice by this Court appeared and were represented through their counsel.
Respondents Nos. 2 and 3 who are real contestants, have also filed their parawise comments in form of written statement, wherein they claimed that recount was done by the Election Tribunal on 22.3.2006, wherein the writ petitioners participated by agreeing to recount of only one Polling Station No.
It is further narrated by Respondents Nos. 2 and 3 that at the time of recount of ballot papers, no injunctive order had been issued by this Court and the learned Presiding Officer of the Election Tribunal relying on statement of the learned counsel for the writ petitioners, undertook the exercise of recount.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, this Court on 22.3.2006 had suspended order of recount of ballot appears passed by the Election Tribunal and the recount was also done the same day. Proceedings of the recount revealed that order passed by this Court was not in the notice/knowledge of the Presiding Officer. I had requisitioned a report from the Deputy Registrar (Judicial) of this Court about the fact that at which time the restraint order dated 22.3.2006 was conveyed to the Election Tribunal, according to which the order was conveyed telephonically and fax message at about 2.30 p.m. There is nothing on the file to the effect that at what time the recount was done by the Election Tribunal but in the ordinary course of events, the Presiding Officer who was to discharge dual functions of District and Sessions Judge and as an Election Tribunal must have undertaken the exercise of recount the ballot papers in latter part of the working hours of his Court i.e. till 3.00 p.m. In this factual background two primary questions hinge for determination by this Court, first being that at what time injunctive order of this Court would become effective/operative/binding and the other being that in absence of any evidence/material, justifying recount of ballot papers, the same could have been ordered on the basis of an order dated 30.8.2005 passed by the Election Commission of Pakistan.
Earlier to taking up the above referred questions for their answers, it is not disputed by the parties that application of Respondents Nos. 2 and 3 whereby recount of ballot papers has been ordered, was taken up midst of recording of their evidence and statements of only two witnesses had been recorded by that time. It is also not controversial that except statements of AW.1 and AW.2, there is no other material on the file in support of recount ordered by the Election Tribunal. Depositions of AW.1 and AW.2 are only to the effect that at Polling Station No. 7 established in Girls Primary School, two unknown persons entered and took away certain votes forcibly and both of these witnesses were unanimous that counting of votes was done at Polling Station No. 7 at their back. Statements of these witnesses even if accepted to be true might have furnished some basis for re-poll of votes at Polling Station No. 7 but did not justify recount of ballot papers especially when the petitioners had not been granted an opportunity of leading evidence in rebuttal. Law regarding recount of ballot papers is firmly settled by this time to the effect that the same cannot be ordered unless it is justified on the basis of evidence/material on the file and this view had been formed on the basis of consistent judgments by the Honourable Supreme Court in the cases of Nawab Khan and others v. Qamar-ul-Din and others (1999 SCMR 299), Sheikh Iftikhar-ud-Din and another vs. District Judge, Bahawalpur exercising powers of Election Tribunal for Union Council of District Lodhran and 8 others (2002 SCMR 1523), Muhammad Tariq Zakhmi and others vs. Election Tribunal and others (2002 SCMR 1995), Liaquat Ali and another vs. Election Tribunal, Sialkot & others (2003 SCMR 1313) and Muhammad Naeem Kasi and another vs. Abdul Latif and 7 others (2005 SCMR 1699).
From the resume of above formed questions, order of recount by the Election Commission of Pakistan dated 30.8.2005 stood rescinded through a general notification by the Election Commission itself dated 3.9.2005 requiring the parties interested in recount to approach the Election Tribunals already notified where recount of ballot papers could not be claimed as of right and the same, was not to be ordered in routine but to be decided in light of above referred judgments by the Honourable Supreme Court. Notification dated 3.9.2005 was aptly issued by the Election Commission, as power of the Returning Officer to recount ballot papers under Rule 36(6)(ii) of the Rules (ibid) even under the directive of Chief Election Commission stood revoked by his transmission of election results in Form-XVI of Rule 38(3) of the same Rules. Besides it, reference received by the Returning Officer under order of recount dated 30.8.2005, was dropped/answered in negative on 14.9.2005, thus by this order/notification, chapter of recount of ballot papers under the direction of the Election Commission of Pakistan stood closed and thereafter, this exercise was to be undertaken on the basis of evidence brought by the desirous candidates in their respective cases, which was lacking in the case in hand at the time of passing of impugned order dated 14.3.2006.
Answer to the above formed first question brings me to determine the fate of recount of ballot papers returned by the Election Tribunal on 22.3.2006, on which date the restraint order was also issued by this Court. There is no cavil about the proposition that prohibitory injunctions issued by the subordinate Courts under Order XXXIX Rules 1 and 2 CPC become operative on service of the persons to whom those are directed but as regards stay order issued by the superior judiciary of this country including this Court and the Honourable Supreme Court, those become operative the moment those are passed. Said petition was got marked by the petitioners for hearing the same day and the restraint order must have been issued earlier to 1.00 p.m. as according to the report of Deputy Registrar (Judicial) file of the case after dictation of the order, its typing/wetting and signing by the Honourable Judge in Chamber of this Court reached office at about 2.15 p.m. and all this exercise involved at least two hours time. Writ petitioners who were marked present by the Election Tribunal during his proceedings might not be aware of the injunctive order passed in this petition at the time of recount of ballot papers but the same must have been passed earlier to the exercise of recount of ballot papers. Submissions of the learned counsel for the respondent that the recount of ballot papers was done with the concurrence of the writ petitioners, thus this petition required no further determination, has not impressed me to decline invocation of constitutional jurisdiction for the simple reason that petitioners did not accept initial order of recount dated 14.3.2006, which was disputed by them by filing instant constitutional petition before this Court. As far as their consent noted by the learned Presiding Officer of the Election Tribunal in his order dated 22.3.2006 passed at the time of recount of ballot papers is concerned, they only agreed to opening of polling bags received from Polling Station No. 7 and this consent cannot deprive them to challenge the initial order of recount which had no basis in form of evidence or other material, as noted in the foregoing paragraphs. Scan of record and impugned order clearly depict that order of recount was opposed to the canons firmly settled under the judgments by the Honourable Supreme Court and no such exercise could have been undertaken under the grab of order dated 30.8.2005 passed by the Election Commission of Pakistan, which was subsequently recalled by it through notification dated 3.9.2005.
For the reasons noted above, impugned order dated 14.3.2006 was patently unwarranted, illegal and unauthorized and in result thereof, exercise of recount of ballot papers was also unjustified and in the circumstances of this case, impugned order cannot be allowed to be sustained, thus by accepting instant petition, writ as prayed is issued, with the result that Respondent No. 1, will, in the first instance, conclude evidence of the parties and thereafter may opt exercise of recount of ballot papers within a period of one month. Parties are directed to appear before the Election Tribunal for further proceedings on election petition by Respondents Nos. 2 and 3, on 30.5.2006.
(Rafaqat Ali Sohal) Writ Issued as prayed for.
PLJ 2006 Lahore 963 (DB)
Present: Sayed Zahid Hussain and Syed Asghar Haider, JJ.
Major (Retd) ISMAT ULLAH CHEEMA through his SPECIAL ATTORNEY--Appellant
versus
SARFRAZ AHMAD and 2 others--Respondents
RFA No. 364 of 2000, heard on 10.4.2006.
Malicious Prosecution--
----Suit for damages--Appellant was a Major in Pakistan Army--Respondents harbored grudge and filed an application with G.H.Q.--Appellant was honourably acquitted and proceedings were dropped--Suit for damages of Rs. 200,000,00/- against respondent was filed which was decreed to extent of Rs. 1,00,000/- by trial Court--Assessment of damages--Determination--Appellant terms compensation as inadequate and filed appeal for enhancement of damages--Appellant was aggrieved to extent of award of inadequate damages as compensation--Decreed amount in favour of the petitioner was no compensation as compared to mental torture and agony suffered by appellant and career was jeopardized due to said inquiry--Held : No stigma or adverse finding against appellant, no adverse report placed on record to substantiate fact contained in service therefore, record did not support the contention of the appellant that his career was jeopardized by such inquiry--No cogent evidence linking appellant with illness, no bills or medical prescriptions have been placed on record thus no direct evidence to establish the quantum of expenditure and consequential losses suffered by appellant--No direct evidence to establish the actual quantum of money spent on medical bills or even litigation thus the amount of Rs. 2 crores could not be proved--Appeal dismissed. [Pp. 965 & 966] A, B & C
Mr. Shahid Zaheer Syed, Advocate for Appellant.
Nemo for Respondents.
Date of hearing : 10.4.2006.
Judgment
Syed Asghar Haider, J.--The appellant was a Major in the Pakistan Army, his father filed a suit for possession through pre-emption against Respondents Nos. 2 and 3. The suit ended in a compromise, the appellant's father paid consideration and the land was transferred in his favour. The respondents harbored a grudge and filed an application with the G.H.Q. Rawalpindi and Commander 10 Corps against the appellant. The application contained various allegations, resultantly an inquiry was held against the appellant in which respondents full participated, however, the appellant was honourable acquitted and the proceedings were dropped. The appellant filed a suit for damages of Rs. 200,000,00/- against the respondents, which was decreed to the extent of Rs. 1,00,000/- by the trial Court vide judgment dated 5.7.2000. The appellant terms this compensation as inadequate and has filed the present appeal for enhancement of damages.
Learned counsel for the appellant contended that the quantum of damages awarded by the trial Court is not in consonance with the status of the appellant and compensation for the mental torture and agony he suffered while facing the inquiry is inadequate. According to him the frivolous application jeopardized his career and he could not be promoted to the higher level, although he was fit to be promoted as Corps Commander in later life and he fell sick and had to incur huge medical expenses. It is contended that the evidence produced by the appellant was not considered properly, especially the testimony of P.Ws. 1 to 3. In support of his contentions the learned counsel placed reliance on Muhammad Akram versus Mst. Farman Bi (P.L.D. 1990 S.C. 28), Ehsan-ul-Haq Piracha and another Versus Tajammal Hussain (K.L.R. 1992 Civil Cases (Lahore) 119) and Munir Ahmad Versus Muhammad Sadiq (1986 C.L.C. 1181).
The respondents/defendants statedly have not assailed the judgment of the trial Court. No cross objections have been filed by them. They are not even represented and have been proceeded against ex-parte.
We have considered the contentions of the learned counsel for the appellant. The initial controversy related to a piece of land measuring 294 kanals 13 marlas, located in Gujranwala, which was purchased by Ghulam Rasool and Bashir Ahmad, through a registered sale-deed on 4.5.1992. The sale was challenged by the appellant's father Ch. Allah Ditta by filing a suit for possession through pre-emption and ultimately ended in a compromise in which a sum of Rs. 37 Lac was paid to the respondents. However, they harbored a grudge against the appellant's father and made an application to the G.H.Q and Commander 10 Corps, thereafter a lengthy inquiry ensued which ultimately was dropped and the appellant was honourably acquitted. We have perused the documentary evidence as well as the depositions of witnesses. The appellant is only aggrieved to the extent of award of inadequate damages as compensation. According to the learned counsel for the appellant Rs. 1,00,000/- is no compensation as compared to the mental torture and agony suffered by the appellant and his career was jeopardized due to this inquiry. In a suit for damages based on malicious persecution the standard of proof has been laid down through the case law on the subject. In Stapeley vs. Annetts and another [1969] 3 All ER 1541) it was observed by Lord Denning, M.R., that "on the claim for malicious prosecution, the burden is different. The plaintiff has to allege and prove that the defendants acted maliciously and without any reasonable or probable cause." It was reiterated in the same judgment that "in an action for malicious prosecution the burden is on the plaintiff to prove malice and absence of reasonable and probable cause." The position in this country also is not different. From the perusal of record it is evident that no direct evidence was produced by the appellant to support these contentions. The inquiry ended in his favour, there was no stigma or any adverse finding against him, no adverse report was placed on record to substantiate this fact, he continued in service thereafter, therefore, the record does not support his contention that his career was jeopardized by this inquiry. There is no cogent evidence linking the appellant with any illness, no bills or medical prescriptions have been placed on record, thus, there is also no direct evidence to establish the quantum of expenditure and consequential losses suffered by the appellant. The testimony of witnesses (P.W. 1 to 3) does not establish the quantum of damages to Rs. 2 Crores also. Damages are compensation to vindicate the stand of the aggrieved person and to hold that there was no substance in the allegations levelled against him. He has succeeded to that extent before the trial Court and has been awarded damages. The other limb as to the quantum of the damages has to be proved clearly. Cogent and convincing material has to be placed on record to establish the actual losses, remote and hypothetical damages cannot be measured in monetary terms and consequently granted. In the present case there is no direct evidence to establish the actual quantum of money spent on medical bills or even litigation, thus, the amount of Rs. 2 Crores could not be proved. The precedents cited by the learned counsel do not wholly support the appellant, being distinguishable on facts of the cases. There is thus no illegality or infirmity in the impugned judgment.
Resultantly this appeal has no merit and is dismissed with no order as to costs.
(Rafaqat Ali Sohal) Appeal dismissed.
PLJ 2006 Lahore 966
Present: M. Bilal Khan, J.
AMBREEN alias KIRAN SHAH--Petitioner
versus
CAPT. NAJAM-UL-HASSAN NAQVI and another--Respondents
W.P. No. 7754 of 2005, decided on 27.1.2006.
Qanoon-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 59--Opinion of hand-writing expert not binding--Opinion of hand-writing expert is concerned, it is not binding on the Court and usually such step causes undue delay in the proceedings and in family suit such step causes agoney to the plaintiff--When there was sufficient evidence on record to decide the matter between the parties then there was no necessity for such exercise of hand-writing expert. [P. 969] A, B & C
Mr. Muhammad Nasrullah Khan, Advocate for Petitioner.
Mr. Talib H. Rizvi, Advocate for Respondent No. 1.
Ch. Aamir Rehman, Addl. A.G. assisted by Mr. Tanvir Ahmad Shami, Advocate for Respondent No. 2.
Date of hearing : 12.12.2005.
Judgment
Through this judgment, I propose to dispose of two connected Constitutional petitions bearing Writ Petition No. 7754 of 2005 (Ambreen alias Kiran Shah v. Capt. Najam-ul-Hassan Naqvi and another) and Writ Petition No. 8686 of 2005 (Major Najam-ul-Hassan Naqvi v. Additional District Judge, Lahore and two others), as both of them arise out of the same judgment and decree dated 23.4.2005 passed by the learned Additional District Judge, Lahore, whereby he affirmed the judgment and decree dated 3.2.2005 passed by the learned Judge, Family Court, Lahore in a suit for recovery of dowry articles filed by Ambreen alias Kiran Shah.
The suit was contested by the respondent and on the basis of the pleadings of the parties, four issues including that of relief had been farmed. In support of her version, the petitioner had produced affidavits of three witnesses, namely, Shaukat Ali Sherazi, who is her special attorney as well, Muhammad Ibrahim and Muhammad Waris, who had also appeared in the witness box. In addition to that, documentary evidence had also been tendered by her. In rebuttal, besides the respondent, Syed Asad Abbas Naqvi and Syed Tassaduq Hussain Naqvi appeared in the witness box and also submitted their affidavits. After conclusion of the trial, the learned Family Court proceeded to decree the suit partially vide its judgment and decree dated 3.2.2005. The concluding paragraph thereof reads as under:--
"In the light of my issue-wise findings, the parties are entitled for the following relief:--
The plaintiff is entitled for the recovery of dowry articles according to the list attached with the plaint, excluding the Items Nos. 111, 119 to 130 and all the items mentioned on the page No. 6/last page of the list, or in lieu their value Rs. 8,75,000/-, fixed by the Court, after excluding the value of the Articles Nos. 111, 119 to 130 and all the items mentioned on the page No. 6/last page of the list, after deducting the exaggerated value because no purchasing receipts are produced by the plaintiff and the value mentioned in the list are more than prevailing market value and after deducting the depreciation because the articles mentioned in the list are subject to wear and tear. No order as to costs."
Feeling aggrieved of the said judgment and decree, both the petitioner as well as the respondent preferred appeals before the learned District Judge, Lahore, which were entrusted to a learned Additional District Judge for adjudication, who vide his judgment and decree dated 23.4.2005 proceeded to dismiss both the appeals.
Being dissatisfied with the aforesaid judgment, the petitioner has filed the instant Constitutional petition on the plea that the reduction in the price of dowry articles is unwarranted and uncalled for and that she is entitled to a decree for the recovery of Rs. 13,00,650/-, whereas the respondent has approached this Court by filing Writ Petition No. 8686 of 2005 on the plea that the judgments and decrees dated 23.4.2005 and 3.2.2005, passed by the learned Additional District Judge and the learned Family Judge, Lahore, respectively, are not based on record and the alleged signatures on the list of dowry articles had been forged and hence the same be got compared by a Handwriting Expert. According to him, he had moved an application before the learned trial Court in this respect, but the same had been dismissed without any justification. He has also prayed that he may be allowed to place on record photographs and video of Nikah of the parties. He has lastly prayed that the judgments and decrees of the Courts below be quashed.
A pre-admission notice had been issued to the respective parties in both the writ petitions. However, as both the learned counsel agreed to argue the petitions on merits, rather than addressing preliminary arguments, therefore, I have heard them at considerable length.
The learned counsel for the petitioner in support of his petition has argued that the learned Courts below had wrongly observed that some of the dowry articles had been overvalued and that they had reached the said conclusion without any lawful justification; that the reduction in the price of dowry articles was unwarranted and uncalled for and that the petitioner was entitled to a decree for Rs. 13,00,650/- as value of her dowry articles instead of Rs. 8,75,000/-, i.e. the amount determined by the learned Courts below. He has also argued that there is overwhelming evidence to prove that the articles mentioned in the list of dowry articles, which was signed by the respondent, were actually given to her by her parents and it stood established on the record that the same were of the value of Rs. 13,00,650/- and thus she is entitled to recovery the said articles or in the alternative the value thereof. It has been lastly prayed that the judgments and decrees passed by the learned Courts below are liable to be modified and claim of the petitioner merits to be decreed in toto.
Conversely, the learned counsel for the respondent submitted that the miscellaneous application filed by the respondent for getting compared his signatures on the alleged list of dowry articles from the Handwriting Expert had been wrongly ignored by the learned trial Court and hence the judgment and decree passed by it could not be upheld; that the report of the Handwriting Expert would have helped the learned trial Court to reach a just and correct decision about the authenticity of the list of alleged dowry articles and the failure of the Courts below to summon the Handwriting Expert had resulted in failure of justice. It has also been argued that there was hardly any evidence available on the record to the effect that the dowry articles had actually been handed over to the respondent or that the same were lying in his house, therefore, the judgments and decrees passed by the learned Courts below suffer from illegality and material irregularity and that the learned Courts below have failed to appreciate the evidence available on the record, therefore, the impugned judgments and decrees are the result of misreading and non-reading of the evidence and as such are liable to be quashed.
I have consciously heard and considered the arguments addressed by the learned counsel for both the sides in support of their pleas and have also gone through the impugned judgments as well as the available record.
It has already been mentioned in the earlier paragraphs that the petitioner had submitted affidavits of three witnesses, namely, Shaukat Ali Sherazi (P.W.1), Muhammad Ibrahim (P.W.2) and Muhammad Waris (P.W.3), who had also appeared in the witness box and had been cross-examined. In rebuttal, the respondent had appeared in the written box as D.W. 1 and got examined Syed Asad Abbas and Syed Tassaduq Hussain Naqvi as D.Ws. 2 & 3, respectively. Besides his own affidavit, he had also submitted affidavits of his aforesaid two witnesses. From the side of the petitioner, besides other documentary evidence, list of dowry articles (Ex. P3) was also brought on record. The learned trial Court after discussing the evidence on record at length came to the conclusion that the petitioner is entitled to the recovery of dowry articles according to the list attached with the plaint and decreed the suit in the manner as aforementioned.
Insofar as the question of sending the list of dowry articles to the Handwriting Expert is concerned, the same was hardly necessary because the opinion of the Handwriting Expert is not binding on the Court and usually such a step causes undue delay in the proceedings. In a family suit, adopting such a course would have certainly added to the agony of the plaintiff. I feel that while dealing with a Constitutional petition, it would not be appropriate to set aside the judgments of the learned Courts below merely for their refusal to send a document to the Handwriting Expert particularly when the evidence on the record in this particular case is otherwise sufficient to effectively decide the same. In these circumstances, I am of the view that re-appraisal of the evidence available on the record while deciding a writing petition would be hardly desirable.
I do not find any valid reason to interfere with the concurrent findings of facts of the learned Courts below because in this case it was not asserted from any side at the time of arguments that the impugned judgments and decrees are without lawful authority or the same are, in any way, without any legal effect. Both the learned Courts below appear to have properly appreciate the evidence on record and applied their judicial mind while passing the impugned judgments and decrees, which are based on sound reasons and clearly clothed with authority. Hence, there is no justification for this Court to interfere in exercise of its Constitutional jurisdiction. There is no merit in both the writ petitions and the same are accordingly dismissed. The parties are, however, left to bear their own costs.
(Shazia Khalil) Petition dismissed.
PLJ 2006 Lahore 970
Present: Umar Ata Bandial, J.
MUHAMMAD (deceased) through his Legal Representatives)--Petitioner
versus
AMEER and others--Respondents
Civil Revision No. 1702 of 1986, heard on 7.3.2006.
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 15--Waiver of right to Pre-empt--Plea of waiver--Plea of waiver was contained in written statement by respondent and was dully reflected in issues framed by trial Court--Execution of document in-question was also admitted by petitioner/plaintiff--High Court only one out of the petitioners who has challenged judgment of appellate Court--Agreement between the parties constitutes a disclaimer from challenge by pre-emption to any sale transaction--Suit for pre-emption filed by the petitioner has therefore violated the said promise in the agreement--Express disclaimer by the petitioner constitutes a relinquishment of his right to pre-empt--The under taking given by the petitioner does not merely raise on inference by conduct but amounts to a promise to forego the right of pre-emption. [Pp. 971 & 972] A & B
1992 SCMR 19 and PLD 1984 SC 403.
Imrana Parveen Baloch, Advocate for Petitioner.
Mian Muhammad Ayub, Advocate for Respondents.
Date of hearing : 7.3.2006.
Judgment
This is a revision petition filed against the order of the learned appellate Court dated 17.5.1986 whereby the appeal filed by the respondents was accepted and the judgment of the learned trial Court dated 11.4.1985 decreeing the pre-emption suit of the petitioners/plaintiffs was set aside.
The superior right of pre-emption of the petitioner is admitted and the only question is whether the petitioner has waived hi right of pre-emption in respect of the suit land measuring 8 kanals 16 marlas situated in Chak No. 544 GB, Tehsil Sumandari, District Faisalabad. The learned trial Court discarded Ex. D. 2, which is an agreement dated 14.4.1981 executed by the seven plaintiffs in the suit in favour of the vendor of the land sold to the respondent-vendees. The agreement Ex. D. 2 contains an undertaking by, inter alia, the parties not to file claims for pre-emption against sale transactions of land made by either side. The said exhibit was rejected by the learned trial Court on the ground that it did not contain the details of land in respect of which the agreement purported to operate.
The learned appellate Court took a different view of the said exhibit, firstly, on the ground that its execution was admitted by the petitioner and secondly, because in terms of the promise not to sue on the ground of pre-emption, the said exhibit constituted a valid agreement. Reference was made by the learned appellate Court to the judgment in Baqri and 4 others vs. Salehon and 3 others (PLD 1972 SC 133) to state that the right of pre-emption can be waived before the actual sale, either by express refusal to purchase the property or by clear conduct on the part of the plaintiffs showing that they have no interest in the purchase of the property.
Learned counsel for the petitioner has argued that the plea about agreement of waiver does not find mention in the written statement and is, therefore, ineffective; in any case the agreement cannot be termed as a waiver of right of pre-emption under the rule laid down by the superior Courts. She has relied upon case of Abdul Rahsid vs. Bashiran and another (1996 SCMR 808). This judgment holds that the presence of the pre-emptor at the time of the bargain does not constitute evidence of waiver. On the other hand, the learned counsel for the respondents has urged that the execution of the agreement Ex. D. 2 is admitted by the petitioner.
I have considered the submissions made by the learned counsel for the parties and perused the record. The Court has read the record and noticed that the plea of waiver is contained in the written statement by the respondents-defendant and is duly reflected in Issue No. 3 framed by the learned trial Court. The execution of the said document is also admitted by the petitioner-plaintiffs. In fact before this Court only one out of seven plaintiffs has challenged the judgment of the learned appellate Court. Therefore, the said agreement cannot be lightly brushed aside. Taken upon its terms the agreement constitutes a dis-claimer from challenge by pre-emption to any sale transaction arrived in respect of the property by either party to the agreement. The view taken by the learned trial Court to exclude Ex. D. 2 is highly technical. The land forming the subject-matter of the agreement is that which is pre-emptible by either of the parties and it can be ascertained without difficulty. Whilst constructing an instrument the plaint intention must be gathered and applied. Reference is made to House Building Finance Corporation vs. Shahinshah Humayun Cooperative House Building Society and others (1992 SCMR 19). For the purpose of enforcing the instant disclaimer, the fact that the subject-matter land is capable of ascertainment is sufficient to make the promise valid and binding. The suit for pre-emption filed by the petitioner has, therefore, violated the said promise in the agreement.
The consequence of waiver has been held by the Honourable Supreme Court in Naseer Ahmed vs. Arshad Ahmed (PLD 1984 SC 403) to be the foreclosure of the right to pre-empt. It goes without saying that the express disclaimer by the petitioner constitutes a relinquishment of his right to pre-empt. The undertaking given by the petitioner does not merely raise an inference by conduct but amounts to a promise to forego the right to pre-empt. Therefore, the bar is both express and enforceable. Consequently, the above agreement dated, 14.4.1981 (Ex. D. 2) signed by the petitioner forecloses the petitioners' right of pre-emption alleged in the suit and presently also in this petition. The suit for pre-emption is not maintainable and therefore this petition also fails and is dismissed with no order as to costs.
(Shazia Khalil) Petition dismissed.
PLJ 2006 Lahore 972
Present: Muhammad Jehangir Arshad, J.
SABIR ALI SAJID--Petitioner
versus
MUHAMMAD MAQSOOD--Respondent
C.R. No. 2733 of 2005, decided on 23.5.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XXI, R. 37 & S. 51(i)--Constitution of Pakistan 1973--Art. 199--Power to arrest and detention of judgment debtor--Executing Court has got power to order the arrest and direct detention of the judgment-debtor even without notice where the Court was satisfied by affidavit or otherwise with object or effect of delaying the execution of the decree--Judgment-debtor was likely to abscond and leave the local limit of jurisdiction of the Court. [P. 973] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XXI, R. 37 & S. 51 (i)--Provisions required--Satisfaction must be expressed--Executing Court has to satisfy that judgment-debtor was likely to abscond and leave the local limit of trial Court and satisfaction must be expressed with reasons and after proper application of mind to the facts and circumstances of the case--Petitioner was likely to abscond or leave local limits of jurisdiction of executing Court--If petitioner fails to appear before concerned Court the executing Court would be at liberty to proceed with matter in accordance with law and unmindful of his absence. [P. 973] B
Mr. Muhammad Mushtaq Qureshi, Advocate counsel for Petitioner.
Mr. Shabbir Hussain Qureshi, Advocate for Respondent.
Date of hearing : 23.5.2006.
Order
The petitioner who is a judgment-debtor is aggrieved of the order dated 10.12.2005 passed by District Judge/Executing Court, Toba Tek Singh whereby the learned District Judge issued warrant of arrest of the petitioner in execution proceedings.
It has been argued by the learned counsel for the petitioner that the order dated 10.12.2005 has been passed in clear disregard to the provisions contained in Section 51(1) as well as Order XXI, Rule 37 CPC inasmuch as the impugned order neither shows the proper application of mind by the learned Executing Court nor even fulfills the requirements of law for issuance of warrant of detention.
Learned counsel for the decree-holder, on the other hand, submits that the impugned order was valid in law and that as the Executing Court failed to procure the attendance of the petitioner after adopting all the necessary measures there was no option left with the learned Executing Court except to pass the detention order of the petitioner through the impugned order.
Arguments of the learned counsel for the parties have been considered and record perused.
There is no denial of the fact that in terms of Section 51(1) read with Order XXI, Rule 37 CPC the Executing Court has got the power to order the arrest and direct the detention of the judgment-debtor even without notice where the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor was likely to abscond and leave the local limits of the jurisdiction of the Court. The above mentioned provisions therefore require that before issuing the order of detention/arrest the Executing Court has to satisfy that the judgment-debtor is likely to abscond and leave the local limits of the trial Court and such satisfaction must be expressed with reasons and after proper application of mind to the facts and circumstances of the case which are badly lacking in the present case. The impugned order dated 10.12.2005 is only a teleprinter order but has been passed without any notice or for that matter without satisfying that the petitioner was likely to abscond or leave the local limits of the jurisdiction of the learned Executing Court. Further the order does not disclose proper application of mind nor does it contain even a single reason for dispensing with requirement of notice in terms of Section 51(1) and Order XXI, Rule 37 CPC.
In this view of the above this civil revision is allowed and order dated 10.12.2005 is set aside and the learned Execution Court is directed to pass fresh order after complying with the provisions of Section 51(1) as well as Order XXI, Rule 37 CPC. The petitioner, present in Court, shall appear before the learned Executing Court on 5.6.2006 and the learned Executing Court after hearing both the parties shall pass fresh order strictly in accordance with law. In case if the petitioner fails to appear before the learned Executing Court the learned Executing Court shall be at liberty to proceed with the matter in accordance with law and unmindful of his absence.
(Rafaqat Ali Sohal) Case remanded.
PLJ 2006 Lahore 974 (FB)
Present: Ali Nawaz Chowhan, M. Bilal Khan and Syed SHabbar Raza Rizvi, JJ.
INYAT BIBI and others--Petitioners
versus
AMJAD HUSSAIN and others--Respondents
ICA No. 349 of 2001, heard on 16.5.2006.
Constitution of Pakistan, 1973--
----Art. 45--Criminal Procedure Code (V of 1898) Ss. 401 & 382-B--Remission of sentence granted to under trials by Presidents of Pakistan--Entitlement for remission--Scope--Remission granted by President of Pakistan under Art. 45 of the Constitution were not available to the prisoner for the period during which he had not been convicted of any offence nor was undergoing any sentence. [P. 975] A
Mr. Farooq Haider, Advocate for Appellant.
Ch. Sadiq Hussain and Mr. Khurshid Anwar, Addl. A.G., for Respondents.
Dates of hearing: 12.5.2006 and 16.5.2006.
Judgment
Ali Nawaz Chowhan, J.--This judgment shall dispose of I.C.A. No. 384/2001, I.C.A. No. 349/2001, I.C.A. No. 158/2001, W.P. 3658/2002, W.P. No. 13380/2001, W.P. No. 10507/2001, W.P. No. 12286/2003, W.P. No. 14203/2001 and W.P. No. 16137/2001 as common questions of law and facts are involved in all of them.
The question in all the above cases release to remissions which were granted to the under-trials and convicts through various notifications because of the amnesty given by the President of Pakistan at the time of Golden Jubilee Celebration of Pakistan.
We have gone through the judgment with the help of the learned counsel for the appellants, the relevant portion of which is reflected in paragraph 10 is reproduced below :--
"The upshot of the discussion is that the grant of remission to Respondents Nos. 1 and 2 vide Notification dated 28.8.1997 to the extent of 1/5th of the total sentence, three months vide Notification dated 14.8.1996 by the President of Pakistan and Notification dated 28.4.1996 followed by another Notification dated 27.2.1997 granting two months' remission each by the Provincial Government is declared to be in-applicable and contrary to law, therefore, the same are set aside by partly accepting the writ petition. The benefit of these notifications shall not be extended or awarded by way of remissions to the imprisonment to which Respondents Nos. 1 and 2 were sentenced on 31.8.1998 by a competent Court of law. There shall be no order as to costs."
"Under Section 3(3) of the Prisons Act, 1894 (Act IX of 1894), "convicted criminal prisoner" means any criminal prisoner under sentences of a Court or Court Martial......Under Rule 3 of the Prison Rules a convict means a convicted criminal prisoner under sentence of a Court. The legislature in its wisdom and in order to give more rational treatment of the pre-sentence period spent by a convict in jail enacted Section 382-B Cr.P.C. by promulgating the Law Reforms Ordinance, 1972. The sentencing Court is required to take into consideration the period, if any, during which an accused is detained in custody for an offence. But there is nothing in Section 382-B Cr.P.C. or any other law to indicate that such a period is to be treated as convict from the very inception. Therefore, remissions granted by the President under Article 45 of the Constitution or the Provincial Government were not available to the petitioner for the period during which he had not been convicted of any offence nor was he undergoing any sentence. As regards the remission of 60 days granted by the Government of Balochistan on 5.1.2000, under Section 401, Cr.P.C. the High Court was quite correct in taking the view that the same was not permissible in view of Section 402-C Cr.P.C. as the petitioner had been convicted and sentenced under Section 302(b) PPC falling in Chapter XVI of P.P.C. The Lahore High Court has also expressed a similar view in the case of Inayat Bibi v. Amjad Ali and others (2001 P.Cr. L.J. 1435)."
(Rafaqat Ali Sohal) Petitions dismissed of.
PLJ 2006 Lahore 976
Present: Sardar Muhammad Aslam, J.
GHULAM SARWAR BODLA and another--Petitioners
versus
M. ASHRAF and 8 others--Respondents
W.P. No. 2208 of 2006, decided on 14.3.2006.
Punjab Local Government Election Rules, 2005--
----R. 71(9)--Constitution of Pakistan, 1973--Art. 199--Common question of law and facts involved in petitions--Determination of age for Nazim and Naib Nazim--Controversy required resolution--Non-framing of issue--Pendency of civil suit against Board of Intermediate and Secondary Education regarding correction of petitioner's age--Petitioners were elected as Nazim and Naib Nazim--Election was challenged--Controversy required resolution was in regard to the age of the petitioner--Whether he was less than 25 years on the date of filing of nomination paper--Parties were fully aware to controversy and documents in support of stance, non-framing of issue and recording of evidence did not cause prejudice--Petitioners did not raise any objection to procedure adopted by Election Tribunal--No application was ever moved before Election Tribunal required him to frame preliminary issue and grant him opportunity of production of evidence--Grievance had been voiced only after decision was rendered against them--Pendency of civil suit against Board of Intermediate and Secondary Education for correction of petitioner's age was of no avail to him--No order, even of interim nature in his favour by civil Court--Held: Petitioner's date of birth recorded in Matriculation Certificate issued by Board of Intermediate and Secondary Education was, thus less than 25 years of age on the date of filing of nomination paper and disqualified to contest Election Tribunal rightly deseated him which calls for no interference--Petition dismissed. [Pp. 977 & 978] A & B
Mr. Muhammad Ramzan Ch., Advocate for Petitioners.
Ch. M. Amin Javaid, Advocate for Respondents Nos. 1 & 2.
Date of hearing : 14.3.2006.
Order
This order will dispose of Writ Petitions Nos. 2208 and 2210 of 2006, as common question of law and facts are involved in both these petitions.
Ghulam Sarwar Bodla and Shaukat Ali petitioners in Writ Petition No. 2208/2006 were elected as Nazim and Naib Nazim of Union Council No. 15/S.P. Pakpattan Sharif. Their election was challenged through election petition. Written reply was filed by the respondents. The learned Election Tribunal after hearing the arguments of the parties allowed the petition vide his order dated 1.3.2006 which has been impugned herein.
Respondents Muhammad Ashraf and another also filed Writ Petition No. 2210/2006 questioning the decision of the Election Tribunal to the extent of directing re-election on the ground that they being the only contesting candidates left in the field where required to be declared as returned candidates.
Learned counsel for the petitioners (Ghulam Sarwar and another) contends that the learned Election Tribunal has neither framed issue nor recorded evidence and thus, deprived them of their valuable right available under Rule 71(a) of the Punjab Local Government Election Rules, 2005.
On the other hand, learned counsel for the respondents submits that the petitioners on no occasion before the Election Tribunal, required framing of issues and asked for permission to produce evidence. He argued that the parties were fully aware of the controversy raised in the election petition; hence no prejudice in any manner has been caused to the petitioners. Places reliance on the cases of Syed Asghar Ali Shah vs. Election Tribunal (2004 MLD 1912), Fazal Muhammad Bhatti and another vs. Mst. Saeed Akhtar and another (1993 SCMR 2018), Kaura and another vs. Allah Ditta and another (2000 CLC 1018) and Allah Wasaya vs. Irshad Hussain and another (PLD 1986 Lahore 29).
I have heard the learned counsel for the parties and perused the record. The main controversy requiring resolution is in regard to the age of Ghulam Sarwar petition. Whether he was less than 25 years on the date of filing of the nomination paper. The parties were fully aware to the controversy and annexed documents with their pleadings in support of their stance; hence non-framing of issue and recording of evidence did not cause prejudice. The petitioners have argued the matter and did not raise any objection to the procedure adopted by the Election Tribunal. No application was ever moved before the Election Tribunal requiring him to frame preliminary issue and grant him opportunity of production of evidence. The grievance has been voiced only after decision was rendered against them.
The date of birth of Ghulam Sarwar petitioner recorded admittedly in Matriculation Certificate annexed with this petition is 5.3.1981. The admission form was filled by the petitioner in his own handwriting and the same thus, has to be preferred against other documents containing such an entry. The Hon'ble Supreme Court in the case of Abdul Khaliq and another vs. Maulvi Muhammad Noor (PLD 2005 SC 962) has held that Matriculation Certificate has to be preferred against other documents i.e. National Identity Card etc. as the form for admission is filled by the person himself and mentions his age therein. The pendency of Civil suit against Board of Intermediate and Secondary Education, Multan for correction of petitioner's age is of no avail to him. No order, even of interim nature, is in his favour by the Civil Court. Undoubtedly, the petitioner's date of birth recorded in Matriculation Certificate issued by BISE, Multan is 5.3.1981. The petitioner was, thus less than 25 years of age on the date of filing of nomination paper and thus, disqualified to contest. The learned Election Tribunal rightly deseated him which calls for no interference.
In Writ Petition No. 2210/2006-Muhammad Ashraf petitioner and another cannot be declared as returned candidate in view of large difference of votes. They received 2123 votes against 3259 secured by Ghulam Sarwar and another. The votes polled in favour of returned candidate cannot be considered as throw away votes. The disqualification of Ghulam Sarwar was not notorious, so as to alert and put at notice the voters in the constituency. Reference can be had to the case of Shaukat Ali and another vs. District Returning Officer (PLD 2006 SC 78).
For what has been discussed above, I find no merit in these petitions which are dismissed in limine.
(Rafaqat Ali Sohal) Petitions dismissed.
PLJ 2006 Lahore 978
Present: Umar Ata Bandial, J.
SAADIA ASLAM and 3 others--Petitioners
versus
CHAIRMAN, PUNJAB WORKERS WELFARE, BOARD, LAHORE and 3 others--Respondents
W.P. No. 18837 of 2005, decided on 10.5.2006.
Adverse Action--
----Illegal appointment--Plea of estoppel and locus poenitentiae--Appointment orders were withdrawn without giving the petitioners an opportunity of hearing--Rules of natural justice--Injuried to rights--Validity--An order passed by competent authority conferring rights on third parties could not be recalled without serving show-cause notice, granting hearing and giving valid grounds for decision taken--Otherwise not only would vested rights be subject to whim but also would sanctity and force of the orders of the competent authority--Consequence were not countenanced by law--Impugned orders which were passed in violation of rules of natural justice were declared to be illegal--Held: Appointment orders of the petitioners stood revived--Respondent were however at liberty to take lawful proceedings against civil servant and pass order in accordance with law after giving an opportunity of proper hearing to defend--Petition disposed of. [Pp. 979 & 980] A & B
Mr. Altaf Hussain Qureshi, Advocate for Petitioners.
M/s. Muhammad Nawaz Malik and Badar-ul-Amir, Advocates for Respondents Nos. 1 & 2.
Mr. Fawad Malik AAG with Mrs. Nasima Tahira, Director Education WWB Punjab.
Date of hearing : 10.5.2006.
Order
The short point involved for consideration in this petition is that appointment orders in favour of the four petitioners were issued on 8.10.2005 by the competent authority but subsequently, these appointments orders were withdrawn on 16.11.2005.
The grievance of the petitioners is that they were not heard before their appointment orders were withdrawn which represents a serious injury to their rights. Learned counsel for the respondents submits that the said appointment orders were issued against the rules. The petitioners did not possess the requisite qualification on the prescribed date of their applications but had it subsequently on the date of their interview. Learned counsel for the petitioners in rebuttal adds that even if the petitioners' appointment orders were illegal, the rule laid down in Muhammad Shoaib and 2 others vs. Government of N.W.F.P. through The Collector, D.I. Khan and others (2005 SCMR 85) requires that such orders cannot be revoked without hearing and the employees under such illegal appointment orders cannot be punished for the wrongs of the appointing authority.
The foregoing plea of estoppel and locus poenitentiae, aimed at excluding adverse action against the petitioners, involves a defence relating to the merits. Presently, however, a valuable right belonging to the petitioners has been revoked by the impugned action without giving the petitioners an opportunity of hearing. Unless excluded by law, the rules of natural justice require that an order passed by a competent authority conferring rights on third parties cannot be recalled without serving a show cause notice, granting hearing and giving valid grounds for the decision taken. Otherwise, not only would vested rights be subject to whim but also would the sanctity and force of the orders of the competent authority. Both consequence are not countenanced by the law.
Accordingly, the impugned orders dated 16.11.2005 which were passed in violation of the rules of natural justice are declared to the illegal. As a result thereof the appointment orders of the petitioners stand revived. The respondents are, however, at liberty to take lawful proceedings against the petitioners and pass orders in accordance with law after giving them an opportunity of proper hearing to defend themselves. Petition is disposed of in the foregoing terms.
(Rafaqat Ali Sohal) Petition disposed of.
PLJ 2006 Lahore 980 (FB)
Present: Muhammad Muzammal Khan, Syed Shabbar Raza Rizvi & Syed Hamid Ali Shah, JJ.
RIZWAN-UL-HAQ--Petitioner
versus
CH. KASHIF MAHMOOD and 4 others--Respondents
W.P. No. 4474 of 2006, decided on 12.5.2006.
Constitution of Pakistan, 1973--
----Arts. 199 & 225--Conflicting certificate--Constitutional jurisdiction--Presence of two conflicting certificate of Al-Khair University made facts dispute--Election of Provincial Assembly--Objection against respondent before Returning Officer regarding submitting a fake degree--Returning Officer rejected the objection--Appeal was also dismissed by Tribunal--Legal remedy after election in form of election petition or writ, assailed--Election process was still at nomination papers stage--Nomination papers could only be scrutinized through summary proceedings--Matter might be taken up before Election Tribunal by filling an election petition--Dispute can only be resolved by Election Tribunal--Respondent would be deprived of his right to contest election subject to law--Held: If petition was allowed the purpose of providing provisions of Art. 225 of the Constitution of Pakistan, 1973 would be frustrated--Constitutional petition was dismissed--However the parties might avail remedies provided under the law at an appropriate stage. [Pp. 982 & 983] A, B & C
Mr. Muhammad A. Qayyum, Advocate for Petitioners.
Date of hearing : 12.5.2006.
Order
The petitioner is a resident and voter of the constituency, PP281, Bahawalnagar (5), whereas, Respondents Nos. 1 and 5 are candidates for bye-election due to be held in the above constituency on 20.5.2006. The seat of the Provincial Assembly fell vacant on the demise of one, Ch. Tahir Mehmood who died in March, 2006.
Respondent No. 5 raised objection against Respondent No. 1's nomination papers before the Returning Officer, on the ground that Respondent No. 1 was not a graduate, as he had submitted a fake degree. The Returning Officer rejected the objection and accepted nomination papers of Respondent No. 1. An appeal was filed by Respondent No. 5 before the Election Tribunal consisting of two Hon'ble Judges of this Court at Bahawalpur Bench. The appeal was also dismissed by the Hon'ble Tribunal.
The contention of the learned counsel for the petitioner is that the University has already declared Respondent No 1 in possession of a fake detailed marks certificate which was cancelled and withdrawn by the University. The certificate of the Al-Khair University AJK, signed by Registrar dated 13.4.2006 reads as under:--
On scrutiny of the record it has been found that Mr. Khasif Mahmood s/o Khalid Mahmood allegedly a student of BBA is not a bonafide student of this University. Thus the Detailed Marks Certificate No. 1053 issued to him on 6.4.2006 is not correct as he is not registered with the University. Therefore the Detailed Marks Certificate No. 1053 is cancelled and withdrawn."
It may be pointed out that earlier, at the time of submission of nomination papers, Respondent No. 1 had submitted a Provincial Certificate, on basis of which his nomination papers were accepted as valid. The said Provisional Certificate reads as under:--
This is to certify that Mr. Kashif Mahmood S/O Khalid Mahmood (Reg. No. AUR (BA) 296-2000) has passed the Bachelor of Business Administration Examination of this University held in April, 2003. The University has, accordingly, issued him DMC Bearing No. 1053. He will, however, be awarded BBA degree in due course of time."
The contention of the learned counsel for the petitioner is that since the University vide its letter dated April 13, 2006 withdrew and cancelled Detailed Marks Certificate No. 1053, the letter dated April 6, 2006 (Provisional Certificate) lost its efficacy, thus, petitioner is deemed disqualified and without required qualification i.e. Degree of BBA. According to the learned counsel for the petitioner, for the same reason, Respondent No. 1 is not constitutionally and legally qualified to contest the impending bye-election of constituency PP281, Bahawalnagar (5).
Similar arguments addressed to the Hon'ble Tribunal failed to get approval of the Tribunal. The Hon'ble Tribunal expressed itself, precisely in the following terms:--
"Admittedly, two certificates have been brought on record by both the parties of the same University. The Registrar of the University does not deny either of them to have been issued. According to both certificates the contention of the University is polls apart. At this stage when the nominations are only to be scrutinized summarily a detailed investigation of the genuineness, bonafide nature of the respondents' studentship with the University in the presence of two different certificates cannot be ascertained. In this view of the matter we deem it appropriate that this question may be resolved at the appropriate time after election through an election petition if any of the parties feels so required."
The examination of the above order demonstrate that presence of two conflicting certificates of Al-Khair University, Azad Kashmir, makes facts disputed and according to the Hon'ble Tribunal, this cannot be resolved under the Constitutional jurisdiction. As the election process is still at nomination papers stage, the nomination papers can only be scrutinized through a summary proceedings. Hence, the Hon'ble Tribunal held that the matter may be taken up before the Election Tribunal by filing an election petition, once the election process is over. Though the learned Election Tribunal did not refer to Article 225 of the Constitution, nevertheless, Article 225 also requires that such dispute can only be resolved by Election Tribunal. For convenience provisions of Article 225 are reproduced as follows:--
"No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament)."
The language of Article 225 is express and mandatory in nature. Expression "election" includes different stages of the election from filing nomination appears to the Notification of the election result, therefore, the present dispute is definitely covered by Article 225 of the Constitution. The Hon'ble Supreme Court of Pakistan held, "the conclusion of the Court is that all stages from start to conclusion of the election are part of the election. If any party has any grievance which may arise at any stage during the process of election should be agitated under Article 225 of the Constitution. Other forums should not be approached at intermediate stage which may cause a delay in holding election, such interference by any other legal forum may also frustrate the objective of providing Article 225 under the Constitution." (Election Commission of Pakistan v. Javaid Hashmi, PLD 1989 SC 396).
"The upshot of the above discussion is that generally in an election process High Court cannot interfere with by invoking its constitutional jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can press into service Constitutional jurisdiction of the High Court."
The facts of this case show that the petitioner or the Respondent No. 5 shall have legally remedy after the election, in form of election petition or writ petition in nature of quo-warranto, as the case may be, whereas, in event of acceptance of this writ petition, Respondent No. 1 would be deprived of his right to contest election, of course, subject to law. In addition to that, we also believe that if this writ petition is allowed, the purpose of providing provisions of Article 225 would be frustrated.
(Rafaqat Ali Sohal)
PLJ 2006 Lahore 983
Present: Sh. Azmat Saeed, J.
Mst. NASIM SHARIF (WIDOW)--Petitioner
versus
IMTIAZ ALI KHAN and 3 others--Respondents
W.P. No. 12592 of 2002, decided on 2.5.2006.
Dowry and Bridal Gifts (Restrictions) Act, 1976--
----Ss. 3 & 9--Family Courts Act (XXXV of 1964), S. 14--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Suit for recovery of dowry articles before Family Court--Daughter of respondent was married to son of the petitioner--Spouses was died in an accident--Petitioner declined to return dowry articles to respondent who were legal heirs of deceased daughter--Objection regarding competency of suit was raised in written statement--Issues were framed and parties were put to evidence--During course of cross-examination petitioner was confronted with a video recording of the marriage of the deceased spouses at which point of time, the petitioner walked out from the Court and boycotted the proceeding--Cross-examination could not be completed--No further evidence was produced by petitioner--Suit was decreed in favour of respondent--Assailed--Jurisdiciton vested in Family Courts was determined on basis of subject-matter and not on the basis of the persons, permitted or entitled to invoke such jurisdiction--No provision which identified the person entitled to initiate the proceedings before Family Courts which have exclusive jurisdiction to adjudicate upon the matters mentioned in schedule--Factum of filing of suit for recovery of dowry articles mentioned at Serial therefore, Family Court would have jurisdiction to adjudicate upon the matter especially that right to sue did not survive the death of the wife--Family Court had jurisdiction to adjudicate upon the suit filed by respondent--No evidence in respect of contentions raised to the allegations made in written statement qua the respective time of each of the spouses--Petitioner herself alongwith her counsel walked out from the Court and boycotted the proceedings, an action which was totally uncalled for and was alien to judicial process--Petitioner could not and should not be allowed to take advantage--Petitioner herself refused to be subjected to cross-examination and did not deliberately produce any evidence--Contentions were wholly misconceived--Petition dismissed. [Pp. 985, 986, 987 & 988] A, B, C, D & E
Mr. Muhammad Ghani, Advocate for Petitioner.
Malik Azam Rasool, Advocate for Respondents.
Date of hearing : 7.4.2006.
Judgment
This Constitutional petition is directed against the appellate judgment and decree dated 25.4.2002 whereby the appeal filed by the petitioner against the judgment and decree dated 23.7.2001 was dismissed.
Brief facts leading to the filing of this Constitutional petition are that Respondents Nos. 1 & 2 filed a suit for recovery of dowry articles before the Family Court, Lahore. It was alleged in the plaint that on 5.10.1992 Mst. Sabahat Sharif, daughter of Respondents Nos. 1 and 2, was married to Mobeen Sharif, son of the petitioner. At the time of marriage, various dowry articles were given by the said respondents to their daughter. On 6.8.1997, the spouses was traveling from Islamabad to Lahore when their car was fired upon and fell into a pond. Both the spouses are stated to have died. It was contended that deceased spouses used to reside at the ancestral house of Mobeen Sharif alongwith the petitioner, where the dowry articles were stored. The petitioner declined to return the same to Respondents No. 1 and 2, who were the only legal heirs of their deceased daughter. The suit was resisted by the present petitioner, who in her written statement raised the objection that the suit was not competent, and further accused the respondents of having arranged the death of her son. It was also contended in the written statement that in fact the son of the petitioner had died after the death of the daughter of Respondents Nos. 1 and 2. On the divergent pleadings, issues were framed and the parties were put to evidence. Respondents Nos. 1 and 2 got their evidence recorded before the Family Court whereafter the case was fixed for evidence of the present petitioner. It appears from the record that statement of the petitioner was recorded, and during the course of her cross-examination she was confronted with a video recording of the marriage of the deceased spouses, at which point to time, she walked out from the Court and boycotted the proceedings. The cross-examination could not be completed. In the circumstances, her statement was not read in the evidence. No further evidence was produced by the petitioner, eventually, the Family Court vide its judgment dated 23.7.2001, decreed the suit, in favour of Respondents Nos. 1 and 2. Aggrieved the present petitioner filed an appeal under Section 14 of the Family Courts Act 1964, which failed to find favour and was dismissed vide the impugned appellate judgment and decree dated 25.4.2002.
Learned counsel for the petitioner as well as Respondents Nos. 1 and 2 has been heard and the record appended with this petition has also been perused.
It is contended by learned counsel for the petitioner that the Family Court had no jurisdiction to entertain or decide the suit, in as much as, the said Court only has the jurisdiction to entertain a suit for recovery of dowry articles filed by a wife and not by her legal heir. It is further contended that Respondents Nos. 1 and 2 should have invoked the jurisdiction of a Civil Court. The learned counsel further contends that as the value of the dowry articles claimed exceeds rupees five thousand which is a violation of Sections 3 and 9 of the Dowry and Bridal Gifts (Restrictions) Act 1976, hence the suit could not be decreed. It is further contended that the petitioner was not granted a full opportunity of hearing. Adds that the matter of the legal heirs of deceased daughter of Respondents Nos. 1 and 2 is yet to be adjudicated upon, and this aspect has been ignored by the Courts below. In support of the contentions raised on behalf of the petitioner a reference has been made to an inter-party judgment dated 7.6.2002 passed in Civil Revision No. 779/2000 arising from issuance of a succession Certificate. In support of his contentions the reliance has also been placed on the cases reported as Syed Mehdi Hassan Shah vs. Mst. Sheedo Bibi PLD 1962 SC 291 and Muhammad Suleman Malik vs. Rai Trust Corporation of Canada (PLD 1983 Karachi 382).
The contentions raised on behalf of the petitioner has been controverted by the counsel for Respondents Nos. 1 and 2. It is contended that any alleged violation of the said provisions of the Dowry and Bridal Gifts (Restrictions) Act 1976 does not debar a suit for recovery of dowry articles. It is further contended that the suit was filed for recovery of dowry articles, and hence, the Family Court had the exclusive jurisdiction to entertain and adjudicate upon the suit. Adds that a full opportunity of hearing was granted which the petitioner deliberately chose not to avail of, hence cannot raise any grievance in this behalf at this stage. It is further contended that the contentions raised at the bar are at variance with the defense taken in the written statement, more particularly, that the contentions of Respondents Nos. 1 and 2 in the plaint that they were the only legal heir of their deceased daughter has not been specifically denied hence the matter as to which of the spouses died earlier, is irrelevant and alien to the lis. It is also contended that all matters arising from the lis had been decided on the basis of the evidence on the record. In support of his contentions, the learned has placed reliance on the cases reported as Khan Asad Ullah Khan and others Vs. Sheikh Islamud Din (PLD 1978 Lahore 711), Manzoor Ahmad vs. Muhammad Nawaz Siddiqui (PLJ 1975 Lahore 181) and Muhammad Tazeel vs. Mst. Khair-un-Nisa (1995 SCMR 885).
Reverting first to the question of jurisdiction of the Family Court to entertain and adjudicate upon the suit filed by Respondents Nos. 1 and 2. A Family Court is constituted and established under the Family Courts Act 1964 and the jurisdiction thereupon is conferred under Section 5 thereof which reads as follows:--
"5. Jurisdiction.--Subject to provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule." emphasis supplied.
".....the mere fact that it is being claimed by the heirs of the deceased wife does not detract anything from its real character. The various items of the Schedule reproduced above referred to true nature of the subject-matter of a suit and not the person who may file or institute it." emphasis supplied.
"9. The matters specified in the Schedule are the subject-matter of the suit or proceeding without any direct reference whatsoever to the party which institutes the proceedings. There is in fact an irresistible indication e.g., in the case of Jactitation of marriage, that a person who claims to be a stranger, or is in fact a stranger can also maintain proceedings in Family Court. If as in this case the subject-matter of the proceeding is one, which is specified in the Schedule then the Family Court has the exclusive jurisdiction. It is an undeniable fact that Mst. Akhtar Saeeda Bano sought dower and had approached the appropriate forum for that purpose, and such a forum had the exclusive jurisdiction in the matter." Emphasis supplied.
In view of the above, it is obvious that the scheme of the law as is evident from its provision and its interpretation by this Court in the judgments referred to above that the jurisdiction of a Family Court is determined by the subject-matter of the suit, and not by the persons entitled to invoke the jurisdiction. Any suit of a subject-matter mentioned in the Schedule can be instituted before a Family Court. In the instant case, the factum of filing of suit for recovery of dowry articles finds mention at the Serial No. 8, therefore, the Family Court would have jurisdiction to adjudicate upon the matter especially, as it is not the case of the petitioner that the right to sue does not survive the death of the wife hence a Family Court had the jurisdiction to adjudicate upon the suit filed by Respondents Nos. 1 and 2.
The contentions of the learned counsel for the petitioner with reference to the alleged violation of the Dowry and Bridal Gifts (Restrictions) Act 1976 are also misconceived. The contentions raised are contrary to the unequivocal dictum of the apex Court as laid down in the case reported as Muhammad Tazeel vs. Mst. Khair-un-Nisa (1995 SCMR 885) wherein it has been held that the provisions of the said Act are to be enforced by the Authority mentioned therein and such alleged violation will not debar a suit for recovery of dowry articles.
As regards contentions of the learned counsel for the petitioner that Respondents Nos. 1 and 2 were not the sole legal heirs of their deceased daughter as allegedly the petitioner's son died after the death of daughter of Respondents Nos. 1 and 2, suffice it to say that in the instant case, no evidence in respect thereof was on the record, hence no exception to finding returned by the Family Court or the appellate Court can be taken. With regard to the judgment of this Court dated 7.6.2002, the matter pertaining to the instant suit has been dealt with in the following terms:--
"The learned counsel for the petitioner also submitted that a suit for recovery of dowry articles including jewellery, filed by the petitioner has already been decreed by the Family Court and appeal of Respondent No. 3 has already been dismissed. The submits that the jewellery which formed part of the dowry of the daughter of the deceased is lying in the locker which was jointly held in the name of the two deceased persons. He expressed an apprehension that on the basis of the determination of the learned trial Court Respondent No. 3 may also claim share in the jewellery. It was be a question for the learned executing Court to decide if and when an application for execution of the decree for recovery of dowry items is filed by the petitioner."
In the above observations and the fact that there is no evidence in respect of the contentions raised on behalf of the petitioner to the allegations made in the written statement qua the respective time of death of the spouses, the contentions raised on behalf of the petitioner are totally misconceived.
In respect of the contentions of the learned counsel that a full opportunity of hearing was not given to her, suffice it to say that the petitioner herself alongwith her counsel walked out from the Court and boycotted the proceedings, an action, which was totally uncalled for and is alien to the judicial process. The petitioner cannot and should not be allowed to take advantage thereof. The petitioner herself refused to be subjected to the cross-examination and did not deliberately produce any evidence therefore, must face the consequences. In short, the contentions raised on behalf of learned counsel for the petitioner are wholly misconceived. This Constitutional petition being destitute of any merit is hereby dismissed.
(Rafaqat Ali Sohal) Petition dismissed.
PLJ 2006 Lahore 988 (DB)
Present: N.A. Shahid Siddiqui & Ali Nawaz Chowhan, JJ.
ATTA ULLA KHAN--Petitioner
versus
GHULAM RASOOL and 4 others--Respondents
W.P. No. 7184 of 2002, decided on 21.2.2006.
(i) Anti Terrorism Act, 1997 (XXVII of 1997)--
----S. 32--Application of law--Held: Criminal Procedure Code shall equally apply to proceedings before Anti Terrorism Court as long as these go in harmony with the rationale and provisions of Anti Terrorism Act itself. [P. 991] A
(ii) Anti-Terrorism Act, 1997 (XXVII of 1997)--
----Ss. 4A, 4B & 25--Constitution of Pakistan, 1973, Art. 199--Jurisdiction--Appeal against acquittal--Held: High Court can hear appeal not only filed by the prosecutors but also filed by victims, their legal heirs and by private aggrieved persons. [Pp. 991 & 993] B & C
(iii) Constitution of Pakistan, 1973--
----Arts. 175 & 203--Visitorial and revisional jurisdiction of High Court--Appeals could be filed before High Court under Ss. 4A, 4B and 25 of A.T.A. and High Court had the control and superintendence of the Courts below--Held: High Court could also exercise visitorial and revisional jurisdiction in respect of the matters falling out of the ambit of appeals. [Pp. 993 & 993] D & E
Mr. Muhammad Asghar Rokhari, Advocate for Petitioner.
Mr. Khurshid Anwar Bhindar, AAG for Respondents.
Date of hearing : 21.2.2006.
Order
Ali Nawaz Chowhan, J.--Through this Constitutional petition the petitioner wishes to enter into the arena of appeal under Section 25 of the Anti Terrorism Act, 1997 as amended upto 1999, which otherwise provides a restrictive remedy.
The said Section reads as follows:--
"Appeal: (1) An appeal against the final judgment of an Anti-Terrorism Court shall lie to a High Court.
(2) Copies of the judgment of an Anti Terrorism Court shall be supplied to the accused and the Public Prosecutor free of cost on the day the judgment is pronounced and the record of the trial shall be transmitted to the High Court within three days of the decision.
(3) An appeal under sub-section (1) may be preferred by a person sentenced by an Anti Terrorism Court to a High Court within seven days of passing of the sentence.
(4) The Attorney General, Deputy Attorney General, Standing Counsel or an advocate General or an Advocate of the High Court or the Supreme Court of Pakistan appointed as Public Prosecutor, Additional Public Prosecutor or a Special Public Prosecutor may on being directed by the Federal or a Provincial Government, file an appeal against an order of acquittal or a sentence passed by an Anti Terrorist Court within fifteen days of such order.
(5) An appeal under this section shall be heard and decided by a High Court within seven working days.
(6) Pending the appeal the High Court shall not release the accused on bail."
According to the learned counsel for petitioner there was an infirmity in law, itself, inasmuch as it does not allow an appeal to be filed against the order of acquittal in the complaint case by the complainant.
It is said that whereas ATA (Anti Terrorism Act) permits a private complaint to be filed the complainant is left without any remedy in case the complaint results in acquittal of the person he was accusing. He then is left at the mercy of the Law Officer only for projecting his case while he remains destitute of a locus standi.
Likewise, it was the case of the learned counsel for petitioner that Revisional Powers have not been given to the High Court by the ATA Law. Although after the decision of Mahram Ali's case (1998 S.C.M.R. 1156) the High Court has taken the place of the Appellate Tribunal and ATA Courts were placed within the supervisory jurisdiction of the High Court.
That as a result, whenever there is a necessity the Superior Courts are approached through constitutional jurisdiction for visitorial actions making the exercise cumbersome and difficult even in petty matters.
The learned AAG on notice from this Bench took us through the amended Section 417, (2-A) Cr.P.C., which reads as follow:--
(2-A) A person aggrieved by the order of acquittal passed by any Court other than a High Court, may, within thirty days, file an appeal against such order.
(3) No application under sub-section (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order.
(4) If, in any case, the application under sub-section (2) for the grant of special leave to appeal from an order of acquittal is refused no appeal from that order of acquittal shall lie under sub-section (1).
The learned AAG then referred to this provision of Cr.P.C. which were amended by Act XX of 1994 with effect from 14.11.1994 and stated that Cr.P.C. was a general law meant to over come any ambiguity of jurisdiction with respect of filing of an appeal.
A reference may be made to Section 32 of the ATA Act which reads as follow:--
"32. Overriding effect of Act (1) The provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law but, save as expressly provided in this Act, the provisions of the Code shall, in-so-far as they are not inconsistent with the provisions of this Act, apply to the proceedings before and Anti Terrorism Court shall be deemed to be a Court of Sessions.
(2) In particular and without prejudice to the generality of the provisions contained in sub-section (1), the provisions of Section 350 of the Code shall, as far as may be, apply to the proceedings before an Anti Terrorism Court and for this purpose any reference in those provisions to a Magistrate shall be construed as a reference to an Anti Terrorism Court."
According to this law the Criminal Procedure Code shall equally apply to proceedings before an Anti Terrorism Court as long as these go in harmony with the rationale and provisions of the Anti Terrorism Act itself.
What happens when a special Statute meeting a special situation as is the case of Anti Terrorism Act is destitute of a provision and which leads to hardship and creates a vacuum and infirmity? In such a situation while keeping in view Section 32 of the Anti Terrorism Act we have to refer to the General Law which in our criminal system is the Criminal Procedure Code and this general and residual law enable Courts to overcome those hardships, remove those infirmities and proceed in granting a fair remedy to an aggrieved.
It was argued that the amendment as brought by Section 417 (2-A) Cr.P.C. read with Section 25 of the ATA Law remedies the infirmity and, therefore, now a victim, a legal heir, an aggrieved person or a private complainant can take benefit of the amended Criminal Procedure Code and file a petition for leave to appeal against acquittal and once the leave is granted his case surfaces as a full-fledge appeal, no less in status to an appeal under Section 25 of the ATA.
Whereas, we find that Section 25 of the ATA Law has also been amended vide Anti Terrorism Act (X of 2004) with the additions of Section 4-A and 4-B which read as follows:--
(4A) Any person who is a victim or legal heir of a victim and is aggrieved by the order of acquittal passed by a Anti-Terrorism Court, may within thirty days, file an appeal in a High Court against such order.
(4B) If an order of acquittal is passed by an Anti-Terrorism Court in any case instituted upon complaint and the High Court, on an application made to it by the complainant, in this behalf grants special leave to appeal from the order of acquittal, the complainant may within thirty days present such an appeal to the High Court."
The next question will be whether in the absence of any provisions in the ATA itself regarding revisional jurisdiction the High Court can exercise such a revisional powers as are given in Section 439 Cr.P.C.
In case of Girdhar Lal and another v. State (AIR 1952 Allahabad 787) on this question the dictum given was as follows:
"Though the revisional powers of the High Court has been taken away by Section 85(5) of the Panchayat Raj Act, 1947, the High Court has the power of superintendence under S. 227(i) (of the Constitution of India) and can in exercise of the power, set aside an order passed in complete disregard of first principle of judicial procedure in the proceedings under that Act.
If we look at Articles 175 and 203 of the Constitution of the Islamic Republic of Pakistan the subordinate Courts are under the superintendence and control of the High Court who look at their affairs and control and guide them and remedy legal errors committed by them.
Of course, the law was different before Mehram Ali's case. The amendments which were brought above in law after the Mehram Ali's case have changed the situation.
Section 439 of the Cr.P.C. reads as follows:--
"439, High Court's powers of revision:
(1) In the case of any proceedings the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 426 or on a Court by Section 338, and may enhance the sentence and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in manner provided by Section 429.
(2) No order under this Section shall be made to the prejudice to the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Where the sentence dealt with under this Section has been passed by a Magistrate the Court shall not inflict a greater punishment for the offence, which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a Magistrate of the first class.
(4) Nothing in this section shall be deemed to authorize a High Court--
(a) to convert a finding of acquittal into one of conviction : or
(b) to entertain any proceedings in revision with respect to an order by the Sessions Judge under Section 439-A
(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under Section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, he entitled also to show cause against his conviction.
It is an admitted position that the High Court can hear appeals not only filed by the prosecutors but also filed by victims, legal heirs, and by private aggrieved persons.
Obviously when appeals can be filed before the High Court under the aforementioned provisions of law and as has been discussed above the High Court has the control and superintendence of the Courts below, therefore, it is obvious and natural that the High Court can also exercise visitorial jurisdiction in respect of matters which did not fall under the ambit of appeals.
Every day such matters arise and without a formal determination on this question the remedies are sought before this Court under the Constitutional jurisdiction which makes the process cumbersome and difficult whereas, it should be simple and less time consuming otherwise, the very purpose of the Anti-Terrorism Laws for meeting the situations for which the law was enforced would get defeated.
This Court, is, therefore, also of the view that the High Court can exercised visitorial power and can exercise revisional jurisdiction in respect of Courts below and in cases where appeal or leave to appeals are not to be filed.
The conclusions drawn are that a petition for leave to appeal can be filed by an aggrieved person against an order of acquittal passed by ATA Court before a High Court within the time frame as prescribed and the aggrieved person includes the victim a legal heir or a private complainant. Likewise, the High Court has the visitorial powers over the Anti Terrorist Courts and, therefore, can entertain petitions in the nature of those as covered by Section 439 of the Criminal Procedure Code. The law is now so declared and this Constitutional petition is accordingly disposed of.
(Javed Rasool) Petition disposed of.
PLJ 2006 Lahore 994
Present: Sh. Hakim Ali, J.
MUHAMMAD ASIF--Petitioner
versus
MUHAMMAD JAVED AKHTAR--Respondent
C.R. No. 687 of 2005/BWP, decided on 7.12.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, R. 2--Criminal Procedure Code, (V of 1898), S. 522-A(3)--Bar on civil suit--Held: In presence of proceedings under S. 522-A of Cr.P.C. as provided under its sub-section (3), a civil suit is not barred. [P. 997] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, R. 2--Pakistan Penal Code (XLV of 1860), S. 489-F--Suit for recovery on the basis of cheque in presence of FIR under S. 489-F of P.P.C.--Maintainability of--Held: Civil suit & criminal proceedings are two different remedies provided by law, having different consequences--In criminal proceedings punishment is provided while through the civil suit recovery proceedings are made--As the results of both remedies differ so they could be availed of simultaneously--Suit was held maintainable. [P. 997] B
(iii) Constitution of Pakistan, 1973--
----Art. 13--Civil Procedure Code (V of 1908), O. XXXVII R. 2--Pakistan Penal Code (XLV of 1860), S. 489-F--Recovery suit and initiating criminal proceedings at time--Validity--Held: From one subject matter/ transaction or action, if different rights to commence proceedings of civil or criminal nature have sprung, with different results then those can be availed of differently and the legal maxim that "a man should not be vexed twice" would not be applicable. [P. 998] C
Rana Sardar Ahmad, Advocate for Petitioner.
Date of hearing : 7.12.2005.
Order
An order dated 14.11.2005, passed by learned Additional District Judge, Ahmadpur East in an application filed for setting aside ex-parte decree dated 30.11.2004, passed in a suit filed under Order XXXVII, Rules 1 and 2 of the CPC with the title of "Muhammad Javed Akhtar versus Muhammad Asif", is under challenge in the instant civil revision.
To appreciate law points, which have been emanated in the case, the knowledge of facts is necessary. Muhammad Javed Akhtar, respondent had filed a suit under Order XXXVII, Rules 1 and 2 of the CPC for recovery of Rs. 5,00,000/- on the basis of a cheque, issued in favour of Muhammad Javed Akhtar by Muhammad Asif, present petitioner on 15.12.2003. The cheque was presented to Muslim Commercial Bank, Uch Sharif Branch but was dishonoured. So, an FIR 138/2004 under Section 489-F of the PPC was got registered by Muhammad Javed Akhtar. Report under Section 173 of the Cr.P.C. was submitted by the police to the learned Judicial Magistrate, Ahmadpur East, before whom the proceedings of the case were pending. On 29.5.2004, respondent filed the above noted suit for recovery of the amount, in which the petitioner had appeared and filed application to appear and defend the suit, which was allowed subject to furnishing of surety bond. Instead of furnishing of surety bond, present petitioner filed an application in that Court, and absented himself thereafter. So, the suit was decreed on 30.11.2004. Application for setting aside the aforesaid decree was filed on 7.11.2005 after passing of near about one year. The application for setting aside ex-parte decree was dismissed by the learned Additional District Judge through his order dated 14.11.2005. Hence, this civil revision.
The petitioner's learned counsel has raised the following questions:--
(i) Muhammad Javed Akhtar, decree holder had got three choices/options for redressal of his grievances:--
(a) By filing a suit in the ordinary Civil Court;
(b) By filing a suit under Order XXXVII of the CPC before the District Court; or
(c) By lodging an FIR under Section 489-F of the PPC with the police.
Elaborating his arguments, learned counsel states that once a choice was exercised, the other choice was not available to the decree holder. As Muhammad Javed Akthar had got registered an FIR No. 138/2004 against the petitioner on 10.4.2004, therefore, suit for recovery of Rs. 5,00,000/- under Order XXXVII of the CPC was not competent and maintainable before the learned Additional District Judge. He has further explained it by stating that provision of Section 522-A of the Cr.P.C. has conferred powers upon the learned Criminal Court to restore the property to the person, who was deprived of it due to commission of an offence. As the learned Criminal Court was seized of the challan case, therefore, it was empowered and had got jurisdiction upon conviction, if any recorded in future against the petitioner, to order the payment of the amount in dispute, as found due against the petitioner. Therefore, filing of the suit under Order XXXVII and consequently ex parte decree, passed were liable to be set aside by the learned Additional District Judge.
(ii) As per learned counsel, the filing of the suit in the presence of criminal proceedings was vexing twice to the petitioner for the same subject-matter. A person cannot be burdened to face two proceedings simultaneously.
(iii) In case of acquittal in case of Section 489-F of the PPC two conflicting judgments would appear on the scene. Therefore, decree should have been set aside by the learned Court below.
"522-A. Power to restore possession of movable property.--(1) Whenever a person is convicted of an offence of criminal misappropriation of property or criminal breach of trust or cheating or forgery and it appears to the Court that, by such mis-appropriation, breach of trust, cheating or forgery, any person has been dispossessed or otherwise deprived of any movable property, the Court may, if it thinks fit, when convicting such person or at any time within one month from the date of the conviction, order the person dispossessed or deprived of the property, where such property can be identified, to be restored to the possession of such property, whether such property is in the possession or under the control of the person convicted or of any other person to whom it may have been transferred for any consideration or otherwise.
(2) Where the property referred to in sub-section (1) cannot be identified or has been disposed of by the accused so that it may not be identified, the Court may order such compensation to be paid to the person dispossessed or deprived of such property as it may determine in the circumstances of the case.
(3) No order referred to in sub-section (1) or sub-section (2) shall prejudice any right or interest in any movable property which any person may be able to establish in a civil suit."
The provision of Section 522-A of the Cr.P.C. has provided the following ingredients and essentials for its application to a situation:--
(i) To invoke the powers under Section 522-A of the Cr.P.C. the offence of mis-appropriation, breach of trust, cheating or forgery must have been brought to the Criminal Court.
(ii) The person in consequence of these offences is dispossessed or otherwise deprived of any movable property.
(iii) The conviction is recorded by the Criminal Court.
(iv) At the time of recording of that conviction, if the Court thinks fit, or within one month from the date of recording of conviction, that the person dispossessed or deprived of the property, which property can be identified, restored its possession, then it may pass such an order of restoration.
From the above noted points, it has appeared that Section 489-F of the PPC, which is as follows:--
"489-F. Dishonestly issuing a cheque.--Whoever dishonestly issues a cheque towards re-payment of a loan or fulfillment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque."
is not included within the encompass/ambit of Section 522-A of the Cr.P.C. This Section 489-F is newly added section, which was brought into Pakistan Penal Code, 1860 by Ordinance No. LXXXV of 2002 Criminal Law (Amendment) Ordinance, 2002, dated 25th October, 2002, which Section 522-A of the Cr.P.C., 1898, was inserted in the aforementioned Code through Ordinance XVII of 1984, Code of Criminal Procedure (Amendment) Ordinance, 1984. Therefore, the offence of Section 489-F of the PPC was not inserted and made part of Section 522-A of the Cr.P.C. at that time. Difference between offences noted in Section 522-A of the Cr.P.C. and the offence newly created through Section 489-F of the Pakistan Penal Code, 1860, can also be noted from the bare reading of both these sections.
Moreover, in Section 522-A of the Cr.P.C. words "Court may" have been used which grants discretion to the Court to order or not to restore the property in dispute with which an offence as mentioned in that section has been committed.
There is a specific provision in the shape of sub-section (3) of Section 522-A of the Cr.P.C. which grants power to any person to file a civil suit, with regard to any movable property and establish his right/interest in any such movable property, the subject-matter of offence through a civil suit. From this plain working of sub-section (3) it has become clear that a civil suit is not barred even in the presence of this Section 522-A of the Cr.P.C.
Learned counsel's version that suit under Order XXXVII of the CPC or the suit in the Civil Court cannot be filed, when an FIR under Section 489-F of the PPC has been got registered and that a person cannot be vexed twice for the same subject-matter, cannot be accepted in the case, because the civil suit and the criminal proceedings are two different remedies provided by law. Both these remedies have different consequences. In the commission of an offence, punishment is provided while through the civil suit, recovery proceedings are commenced and the amount which is established to have been paid, is recovered. Therefore, both these remedies are not overlapping and have different results and consequences. As the results of both these remedies differ, so both the remedies simultaneously can be availed of by the person who has been conferred/granted such remedies by law. The exercise of right of filing of suit cannot create any hindrance in the way of lodging of FIR under Section 489-F of the PPC and vice versa.
The arguments raised by the learned counsel that a man cannot be vexed twice for the same subject-matter, is not applicable in the instant case because from one subject-matter/transaction or action, if different rights to commence proceedings of civil or criminal nature have sprung, with different results, then those can be availed of differently and the legal maxim that "a man should not be vexed twice", would not be applicable in such a case.
The acquittal in the criminal case filed under Section 489-F of the PPC would not bring in a conflicting judgment, as against the judgment and decree passed in the civil suit for recovery of money. In the criminal case, the considerations for appreciation of the evidence are different than in a civil suit. In criminal proceedings, one is to get acquittal or conviction from the offence allegedly committed while in civil suit amount if established have to be paid, the return of it is directed. Therefore, both these remedies have got different dimensions, results and consequences.
The judgment/order of the learned Additional District Judge has also noted that application was filed after about one year from the passing of the ex parte decree. The petitioner is to blame himself for the filing of application for setting aside ex parte decree after expiry of so much period and barred by limitation. Therefore, the impugned order passed by the learned Additional District Judge cannot be interfered with, as it has been passed within jurisdiction. No excess of jurisdiction or material irregularity or illegality in the exercise of jurisdiction has been pin pointed by the petitioner. Therefore, the civil revision is dismissed in limine.
(Javed Rasool) Revision dismissed.
PLJ 2006 Lahore 998 (DB) [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq & Muhammad Khalid Alvi, JJ.
MUHAMMAD NAEEM KHAN--Applicant
versus
GOVT. OF THE PUNJAB through SECRETARY TO THE GOVERNMENT OF PUNJAB, AGRICULTURE DEPARTMENT, CIVIL SECRETARIAT, LAHORE and 2 others--Respondents
R.A. No. 8 of 1999 in W.P. No. 386 of 1990, decided on 15.3.2006.
Civil Servants Act 1973 (LXXI of 1973)--
----S. 2(6)--Civil Procedure Code, (V of 1908), S. 114--Constitution of Pakistan, 1973, Art. 199--Review of judgment in writ petition--Petitioner was an employee of Market Committe--Writ was dismissed with an advice to approach Service Tribunal, on the basis of his statement that he was a civil servant--Held: As employees of Market Committee could not legally be deemed to be servants of Punjab Government, so legally they were not civil servants--Review application was allowed consequently, writ petition was deemed to be pending. [Pp. 999 & 1000] A, B & C
2000 PLC (CS) 784.
Syed Aqa Asaf Jaffar, Advocate for Applicant.
Mr. Zafar Ullah Khan Khakwani, AAG with Riaz Ahmad, EADA (E&M) Multan, on behalf of Respondents Nos. 1 and 2.
Date of hearing : 15.3.2006.
Order
Maulvi Anwar-ul-Haq, J.--The applicant, admittedly, an employee of a Market Committee, filed W.P. No. 386/90 in this Court. He felt aggrieved of an order dated 20.2.1990 passed by the respondents which, according to the applicant, had the effect of his reversion to a lower post. This writ petition came up for hearing before a learned Single Judge in Chamber, of this Court, on 3.2.1999 when the applicant appeared in person. Somehow or the other he stated in response to a Court question that he is a civil servant. The statement was believed and the writ petition was dismissed with advice to the applicant to approach a Service Tribunal.
Through this application review is being sought of the said judgment dated 3.2.1999.
Learned counsel for the applicant contends that the applicant is not a civil servant either in law or in fact. According to him, the consistent view of this Court has been that the employees of a Market Committee cannot be deemed to be servants of the Provincial Government and consequently civil servants. Refers to the case of Qazi Akhtar Ali v. Director of Agriculture (Economics and Marketing) Punjab Agriculture House, Lahore and another (2000 P.L.C. (C.S.) 784). Learned A.A.G. finds it difficult to controvert the said contention of the learned counsel which is supported by the said Division Bench judgment of this Court.
Having, thus, considered the matter, we do find that the said judgment dated 3.2.1999 is liable to be reviewed. The R.A. is accordingly allowed as we find that the applicant is not a civil servant within the meaning of the Punjab Service Tribunal Act, 1974 or the Punjab Civil Servants Act, 1974. The impugned order dated 3.2.199 is set aside. The result would be that W.P. No. 386/90 shall be deemed to be pending and shall be heard and decided by a learned Single Judge of this Court.
Since almost 16 years have gone-by, the office to take orders from the Hon'ble Senior Judge for fixation of the said writ petition before a learned Single Judge of this Court on a date to be fixed within one month.
(Javed Rasool) Order accordingly
PLJ 2006 Lahore 1000 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD AKBAR deceased through His LRs and others--Petitioners
versus
MAJOR TAJ-UD-DIN deceased through His LRs. and others--Respondents
C.R. No. 814 of 2004, heard on 8.3.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XXI, R. 35 & O. XXII, R. 14--Pre-emption decree--Execution of--Held: Pre-emption decree need not be executed and the Revenue Authorities were bound to correct their record in accordance with decree. [P. 1001] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, Rr. 1 & 2 r.w. S. 151--Grant of temporary injunction--Pre-emption suit--Ex-parte decree directly got implemented in revenue record--Subsequently ex-parte decree was set aside--Assailed--Held: If the Revenue Authorities were competent to amend the records in accordance with ex-parte decree, they were equally obliged to correct their record upon presentation of the orders regarding setting aside the decree--Admittedly the land was being cultivated by tenants and there was no question of delivery of any physical possession--No case of stay order was made out--Revision dismissed. [P. 1001] B
Mr. Muhammad Mumtaz Malik, Advocate for Petitioners.
Nemo for Respondents.
Date of hearing : 8.3.2006.
Judgment
On 27.7.1981 the petitioners filed a pre-emption suit against the respondents. It was stated that they have purchased the suit land, mentioned in the plaint, by means of a Civil Court decree dated 12.2.1981 for a consideration of Rs.7,60,000/- and on the basis of the said decree, Mutation No. 387 has been attested on 5.6.1981. Petitioners claimed to be co-owners in the suit property and also collaterals of the vendors. This suit was decreed ex parte on 27.9.1981. The respondents filed an application for setting aside of the exparte decree which was dismissed by the learned trial Court on 17.12.1981. Against the original ex parte decree as well as the order dated 17.12.1981 an appeal was filed in this Court which was allowed on 27.6.1989 and the ex parte decree was set aside. Civil Appeal No. 403/89 was dismissed by the Hon'ble Supreme Court of Pakistan on 26.1.1991.
On 23.5.1991 an application for grant of temporary injunction was filed by the petitioners stating that after the dismissal of the application for setting aside of the ex parte decree, the petitioners had filed an execution petition and in execution of warrant, the possession was delivered to them and the mutation was attested on 22.12.1981. According to them, without proceedings under Section 144 C.P.C., the respondents are interfering with their tenants. In their reply, the respondents took the plea that no notice was issued to them in any execution petition and that the said mutation has been cancelled after the orders passed by this Court and the Hon'ble Supreme Court of Pakistan. The application was dismissed by the learned trial Court vide order dated 17.7.1991. A first appeal filed by the petitioners was dismissed by a learned Additional District Judge, Sahiwal, on 8.6.2004.
Learned counsel for the petitioners contends that since the possession had been obtained by his clients in execution of the ex parte decree, it can be restituted only in proceedings under Section 144 C.P.C. No one has turned up for the respondents.
I have examined the copies of the records. Since there is nothing on the record to show that the possession of the land, admittedly, under cultivation of tenants, was obtained in execution of the said decree. I called upon the learned counsel to demonstrate that the possession was so obtained in execution of the decree. He has shown me a report Roznamcha from his brief. I have examined the same with his assistance and I find that, in fact, the revenue records were amended when a copy of the said ex parte decree was presented before the Revenue Officer.
Now it is also on record that the respondents have filed ejectment cases against tenants of the land which have been decreed by the Revenue Courts.
By now it is well settled that a pre-emption decree need not be executed and the Revenue Authorities are bound to correct their records in accordance with the said decree. To my mind, the same ought to be the rule in the matter of setting aside of such a decree as has happened in the present case. If the Revenue Authorities were competent to amend the records upon presentation of the copy of the decree, they were equally obliged to correct the records upon the presentation of the orders of this Court and orders of the Hon'ble Supreme Court of Pakistan of setting side the said decree. Admittedly, the land is being cultivated by the tenants and there is no question of delivery of any physical possession. The civil revision is frivolous and is dismissed. No orders as to costs.
(Javed Rasool) Petition dismissed.
PLJ 2006 Lahore 1002 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
JAN MUHAMMAD (deceased) through LEGAL HEIRS and others--Appellants
versus
NOOR MUHAMMAD (deceased) through Legal Heirs and others--Respondents
Regular Second Appeal No. 40 of 1972, heard on 4.4.2006.
(i) Burden of Proof--
----Entitlement of inheritance--The judicial trend consistently had been that the burden would be upon the person setting up the custom excluding a female from inheritance. [P. 1005] C
(ii) Customary Law--
----Right of female inheritance--Trend of judicial authority--Where a custom, recorded in the Riwaj-i-Am affects adversely the rights of females who had no opportunity whatsoever of appearing before revenue authorities, the initial presumption in favour of its correctness is considerably weakened and a few instances are sufficient to rebut it. [P. 1004] B
(iii) Muhammadan Law--
----Entitlement of inheritance--Entire evidence showed that among the various tribes of Baluchis too, daughters succeeded to their father's ancestral property in accordance with Muhammadan Law in presence of near male agnate heirs. [P. 1004] A
2004 SCMR 1524; 2005 MLD 1782; AIR 1942 Lah. 207 & AIR 1942 Lah. 1, ref.
Mian Arshad Latif, Syed Izhar-ul-Haq Gillani & Mr. Shahid Tasawar Rao, Advocates for Appellants.
Mr. Muhammad Amir Bhatti, Advocate for Respondents.
Date of hearing : 4.4.2006.
Judgment
On 1.7.1968 the appellants filed a suit against the respondents. In the plaint, it was stated that Nabi Bakhsh was the last male owner of the suit land, detailed in the schedule annexed to the plaint. He was survived by two sons, namely, Noor Muhammad and Karim Bakhsh and a daughter Sabal Mai. The appellants and Mst. Amna are the children of the said Sabal Mai who died about 5 year prior to the filing of the suit. Mst. Sabal was an illiterate Pardahnashin woman. She had good relations with her brothers. During the last days of Nabi Bakhsh, the land was looked after by his sons and they continued to do so after his death. She was assured that mutations of inheritance have been got attested in her favour as well. Her share in produce was also being paid. 5/6 months prior to the institution of the suit, a dispute arose between the parties and the respondents denied their title. They checked up the records and it revealed that neither their mother nor the appellants are recorded in the revenue records and that their mother was excluded from the inheritance mutation. They sought a declaration accordingly. The respondents in their written statement denied that Mst. Sabal was daughter of Nabi Bakhsh. According to them, she was the daughter of a wife of Nabi Bakhsh from previous husband. It was further contended that even if she is proved to be a daughter of Nabi Bakhsh then according to the custom she was not entitled to inherit the estate of Nabi Bakhsh. Following issues were framed by the learned trial Court:--
Whether the suit is maintainable in the present form? O.P.P.
Whether the suit land was owned by Nabi Bakhsh deceased? O.P.P.
Whether Mst. Sabal was the daughter of Nabi Bakhsh deceased? O.P.P.
Whether the suit of the plaintiffs is time barred? O.P.P.
Whether the defendants became owner of the suit land by virtue of adverse possession for a period of more than 12 years? O.P.D.
Whether Nabi Bux deceased was governed by custom in matter of inheritance and alienation? If so, what was that custom? O.P.D.
Whether the plaintiffs are the heirs of Mst. Sabal? If so what are their shares in the suit land? OPD.
What is the value of the suit for the purposes of Court fee and jurisdiction? O.P. Parties.
Relief.
Evidence of the parties was recorded. All the issues were found in favour of the appellants and the suit was decreed on 30.9.1969. A first appeal filed by the respondents was allowed by learned District Judge, Dera Ghazi Khan, on 24.1.1972. I may note here that the learned District Judge affirmed the findings of the learned trial Court that Sabal was the daughter of Nabi Bakhsh but reversed the findings of the learned trial Court on Issue No. 6.
Learned counsel for the appellants contend that it is the plea of the respondents and the learned District Judge has also proceeded on the premises that Sarkanis are a branch of the Tuman of Baluch Legharis. They referred to the cases of Eada Khan v. Mst. Ghanwar and others (2004 S.C.M.R. 1524) and Ghulam Rasool and 7 others v. Rashid and 4 others (2005 MLD 1782) to urge that the Legharis did not follow custom. Reliance has also been placed on the case of Allah Diwaya v. Mt. Bakht Waddi and another (AIR 1942 Lahore 207). Learned counsel for the respondents, on the other hand, urges that the custom has been duly proved to exist and consequently the fact that late Nabi Bakhsh Sarkani was governed by custom in the matter of succession has been established. He also questions the finding of the learned Courts below as to relationship between Mst. Sabal and Nabi Bakhsh deceased.
I have gone through the trial Court records, with the assistance of the learned counsel for the parties. Now apart from oral evidence and if I may say so the witnesses produced by the appellants particularly PW-2 and PW-3 have gone uncross-examined with reference to their statements that Nabi Bakhsh was following Shariat, scores of instances in the form of mutations have been produced by both the parties.
However, upon a reading of the entire evidence on record, I do find that the claim of the respondents is that their tribe is from the Tauman of Nawab Jamal Khan Leghari and the custom was followed accordingly. This has also been believed by the learned District Judge in the impugned judgment with reference to Mr. Ryter's Book "Tribes and clans of the Derajat Division". Now in several judgments reported in the Punjab Record of 1908 referred to at page 208 of the said judgment in the case of Allah Diwaya (AIR 1942 Lahore 207), it has been held after detailed inquiries that among the various tribes of Balouchis, daughters succeed to their father's ancestral property in accordance with Muhammadan law in the presence of near male agnatic heirs. In fact, the finding is that except Khosas and Qaisaranis all other Baluch tribes follow Shariat. Now the trend of the judicial authority in Punjab had throughout been, that where a custom recorded in the Rawaj-i-am affects adversely the rights of females who had no opportunity whatsoever of appearing before the revenue authorities, the initial presumption in favour of its correctness is considerably weakened and a few instances are sufficient to rebut it. To my mind, the entries in the Riwaj-i-am referred to by the learned District Judge do stand rebutted by the instances relied upon by the appellants.
This case was filed in this Court in the year 1972 and ever-since the matters have undergone a complete revolution. Be that as it may, even with reference to the old law, in my humble opinion, the judicial trend consistently had been that the burden would be upon the person setting up the custom excluding a female from inheritance. Reference be made to the Full Bench judgment of this Court in the case of Karam Dad and others v. Mt. Muhammad Bibi and others (AIR 1942 Lahore 1). I, therefore, reverse the finding of the learned District Judge on the said issue and restore that of the learned trial Court.
Now so far as the finding, on issue No. 3 is concerned, I have examined the evidence, with the assistance of the learned counsel for the parties and do not find any mis-reading or non-reading thereof by the learned Courts below while holding the said lady to be the daughter of Nabi Bakhsh deceased.
The R.S.A. is accordingly allowed. The impugned judgment and decree dated 24.1.1972 of the learned District Judge, Dera Ghazi Khan, is set aside while the one passed by the learned trial Court on 30.9.1969 is restored but with no orders as to costs.
(Javed Rasool) Appeal allowed
PLJ 2006 Lahore 1005 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
JAMSHAID AHMAD--Petitioner
versus
DISTRICT CO-ORDINATION OFFICER D.C.O. MUZAFFARGARH and others--Respondents
Writ Petitions Nos. 16 & 686 of 2006, heard on 6.4.2006.
Promotion--
----Departmental Selection Committee--Respondent was promoted as Naib Tehsildar by D.C.O. on the basis of Chief Minister's directive--Assailed--Held: Appointed and pronoted had been made by D.C.O. who was not even an appointing authority under the Rules, only upon the communication of the desire of Chief Minister in gross violation of law--No role being attributed to CM in the matter of appointment or promotion of the civil servants of the province--Impugned order set-aside. [Pp. 1007 & 1008] A & B
Sahibzada Mehboob Ali Khan & Mr. Tahir Mahmood, Advocates for Petitioner.
Mr. Zafarullah Khan Khakwani, A.A.G. for Respondent No. 1.
Ch. Saghir Ahmad, Advocate for Respondent No. 2.
Mian Arshad Latif, Advocate for Respondent No. 3 (in W.P. 686/2006).
Date of hearing : 6.4.2006.
Judgment
This judgment shall decide W.P. No. 16/06 and W.P. No. 686/06 as common questions are involved and the appointment of Muhammad Iqbal the private respondent in both the cases has been questioned.
(i) 50% by initial recruitment.
(ii) (a) 38% by promotion on seniority-cum-fitness basis from amongst Qanungos in the District with at least three years experience as such, (b) 12% by promotion through selection on merits from amongst subordinate service including Assistants and Senior Clerks of revenue Department in the District having three years experience as such.
It is also admitted on all hands that the selection is to be made by a Departmental Selection Committee at District level comprising the following officers:--
District Coordination Officer Chairman
Executive District Officer concerned. Member
Executive District Officer (F&P). Member
Appointing Authority concerned Member
(if other than the EDO(R) concerned)
of the concerned Administrative Department
Now the grievance being made out in both the writ petitions is that the said Muhammad Iqbal respondent has been appointed and promoted as a Naib Tehsildar vide order dated 20.12.2005 not in accordance with the said rules and in the manner stated above but only because the Chief Minister has so directed. I deem it appropriate to reproduce here the said order dated 20.12.2005:--
"OFFICE OF THE DISTRICT CO-ORDINATION OFFICER, MUZAFFARGRAH.
ORDER
In compliance with Chief Minister's directive Mr. Muhammad Iqbal, Senior Clerk Office of DDO (Revenue), Jatoi District Muzaffargrah is hereby promoted and adjusted as B-Class Naib Tehsildar on officiating basis against ministerial quota subject to confirmation by Departmental Promotion Committee.
He is deputed to receive training for a period of six months in Consolidation Wing and report for the said training to the Deputy District Officer (Cons). Muzaffargrah.
Sd/-
District Co-ordination Officer
Muzaffaragarh."
There is also no dispute that the order has been passed on the following directive issued from the Chief Minister Secretariat on 10.12.2005:--
"On presentation of the enclosed request from Sardar Allah Wassaya Ilyas Chunoo Khan Leghari-MPA PP-259, Chief Minister Punjab has been pleased to desire that Mr. Muhammad Iqbal, Senior Clerk O/O DDO (R) Jatoi, District Muzaffargarh may be promoted as "B" Class Naib Tehsildar against his quota subject to eligibility and vacancy.
Sd/-
(G.M. SIKANDER)
Principal Secretary To
Chief Minister Punjab."
Learned counsel for the petitioners with reference to the case of Muhammad Akhtar Shirani and others v. Punjab Text Book Board and others (2004 S.C.M.R. 1077) and Abdul Samad Umrani and another v. Zahid Ali Badini, DSP and 4 others (2001 SCMR 65) urge that the said appointment is illegal and void. Learned A.A.G. has not much to say in this matter. Learned counsel representing the private respondent in both these cases has tried to support the said order by urging that it has been made subject to the confirmation by the Departmental Promotion Committee.
I have given some thought to the respective contentions noted above. There is no manner of doubt in my mind that the appointment has been made by the D.C.O. Muzaffargarh, who is not even an Appointing Authority as per the said Rules, in gross violation of the same only upon communication of the said desire of the Chief Minister. Now I have gone through the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and I do not find any role being attributed to the Chief Minister of the Province in the matter of appointments or promotions of the civil servants of the Province.
Both the writ petitions are allowed and the impugned order dated 20.12.2005 is declared to be without lawful authority and void and is set aside the Respondents Nos. 1 and 2 shall take steps to convene a meeting of the Departmental Selection Committee in the manner prescribed and to take up for consideration cases of all the eligible candidates including the Respondent No. 3 and to conclude the proceedings and make a selection without in any manner being influenced by the said directive. No orders as to costs.
A copy of this judgment be immediately remitted to the Respondents Nos. 1 and 2 and the learned A.A.G. shall also convey the order to the said respondents. The exercise to be concluded within 15 days.
(Javed Rasool) Petitions allowed
PLJ 2006 Lahore 1008 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
Mst. JAMEEL FATIMA and another--Petitioners
versus
S.H.O., P.S. GULGASHT, MULTAN and 5 others--Respondents
W.P. No. 5182 of 2005, heard on 4.4.2006.
Constitution of Pakistan 1973--
----Art. 199--Constitutional petition--Illegal dispossession of tenants by land lord--Petitioners/tenants were in lawful possession of the building under an admitted agreement--They were dispossessed in presence of the police which according to D.P.O. had gone to protect respondent, the widow of the Late D.I.G. Police--Held: As the petitioners had been ejected otherwise than in due course of law--Petition allowed and S.H.O. was directed to get the possession deliver back to petitioners until next days noon. [Pp. 1011 & 1012] A, B & C
PLD 2001 Lah. 94; PLD 2000 Lah. 101 & 1993 MLD 152, ref.
Mehr Haq Nawaz Hamayon, Advocate for Petitioners.
Mr. Zafar Ullah Khakwani, AAG for Respondents.
Malik Muhammad Tariq Rajwana, Advocate for Respondent No. 6.
Date of hearing : 4.4.2006.
Judgment
According to the contents of the W.P., Petitioner No. 1 is the mother of the Petitioner No. 2. She is a tenant in a building Bearing No. 96-A/I in Gulgashat Colony, Multan, which was let out to her by Hamid Aslam Malik, deceased husband of Respondent No. 6, vide agreement dated 5.10.1999 (Annex.A). An educational institution is being run in the said building by Petitioner No. 2. According to the writ petition, the rent at the agreed rate of Rs. 18000/- for a period of three years and thereafter with an enhancement of 25% in terms of the agreement of tenancy, has been paid upto August, 2005. On 21.8.2005, the police of Police Station Gulgasht Colony, Multan headed by Respondent No. 1, took forcible possession of the building. A mandamus is being sought directing the respondents to restore the possession so taken illegally. Writ petition was filed in this Court on 27.8.2005, which came up on 29.8.2005 when a report from Respondent No. 3 was sought in presence of learned law officer. Report was filed and put up on 31.8.2005, when it was noted that the report is not satisfactory. DIG, Multan was called upon to look into the matter and to make a detailed report. This report was submitted on 17.9.2005. Meanwhile, Respondent No. 6 had also entered appearance through Mr. Tariq Rajwana, Advocate who was called upon to file reply. This reply was filed on 26.10.2005. Writ petition was admitted to hearing vide order dated 14.11.2005.
"It is transpired during enquiry that Mr. Shabbir Jafri, husband of Mst. Jamil Fatima, petitioner had good relations with landlord late Hameed Aslam Malik who was the Dy. Inspector General of Police in service. During his lifetime, Shabbir Jafari, could not dare to refuse payment of rent or retain the possession of the building without payment rent. However, after his death, his attitude towards the widow was suddenly changed upon which she felt his mala fide intention and gave him written notices in November, 2004 but Mr. Shabbir Jafri did not pay heed and did not make any suitable arrangement for shifting of school and vacation of the building. He kept the possession of the building with mala fide intent as he had already started running the joint cadet school in another building with complete set up at Bosan Road, Multan. The photos of said school are attached herewith. He was also served notices of vacation through TCS but be remained unresponsive and reluctant. His mala fide and ulterior motives to retain the possession were too obvious as he could conveniently vacate the building having ample time during summer vacation. Since there had erupted a dispute between the parties the local police had visited the spot for prosecution of the widow landlady to avoid any untoward incident. The possession of the building was taken by the owner party. Police reached there to avert any untoward incident due to long standing dispute between the parties.
FINDINGS.
I have gone through the record, photographs and heard both the parties at length and come to conclusion that the tenant party had mala fide intention due to which delaying tactics were used. On the other side widow of the late police officer was falsely alleged for using police as an instrument. Police played a vital role to maintain peace and was not involved to illegally dispossess the tenant, please.
(Munir Ahmad Chishti) PSP
District Police Officer
Multan".
Now according to the reply filed by Respondent No. 6, it has been admitted that the building was let out to the Petitioner No. 1, vide agreement dated 5.10.1999. It was alleged that the petitioners have without permission of LRs of Hamid Aslam Malik, raised new construction in the rented premises. At the same time, it was stated that the petitioner promised that in case additional property tax is imposed as a result of the said construction, they will enhance the rent proportionately. The property tax was increase from Rs. 20,000/- to Rs. 70,000/-. Notice was sent on 6.1.2005 calling upon the petitioner No. 1 to pay the additional rent of Rs. 10,000/- per month with effect from January, 04 and also to pay Rs. 50,000/- additional property tax and she was also called upon to vacate the premises within one month of the receipt of the said notice. The petitioners, however, stopped payment of rent and they are rent defaulters. It was then stated that Petitioner No. 1 informed the Respondent No. 6 telephonically that she will vacate the property till 1.6.2005 and will also pay rent at the enhanced rate but the needful was not done. The property was personally required by the Respondent No. 6 and the petitioners were called upon to hand over the vacant possession within 15 days vide notice dated 12.5.2005. It was then stated that pursuant to repeated requests of Respondent No. 6 the petitioner left the premises without any intimation. It was further stated that when the petitioners were in the process of shifting and removing the furniture from the said building, servants of Respondent No. 6 stopped them to do so without paying rent amount of Rs. 1,80,000/- and Rs. 50,000/- and the police was called by the petitioners themselves.
A rejoinder has been filed by the petitioners to the said reply of Respondent No. 6. alongwith rejoinder a statement of bank account has been filed depicting various entries of the payment made to the respondent-lady through cheques on account of rent. The reply given to the notice served on behalf of the respondent-lady has also been filed.
Learned counsel for the petitioner contends that it is a case of sheer high handedness only because the deceased husband of the respondent-lady was a senior police officer, they have been forcibly ejected in violation of the law of the land and particularly all the provisions protecting the rights of a tenant of urban property.
Learned AAG argues that alternate remedies being available and some factual controversy being involved, the writ petition is not competent. According to him the petitioner can have resort either to a suit under Section 9 of the Specific Relief Act, 1877 or a complaint under Illegal Dispossession Act, 2005. Mr. Tariq Rajwana, Advocate, learned counsel for Respondent No. 6 while endorsing the said arguments of learned AAG insists that the petitioners had themselves left the premises and were not forcibly ejected. Mr. Haqnawaz Hamayon, Advocate, rejoins to cite the cases "Ijaz Ahmad and others vs. The State" (PLD 2001 Lhr. 94), Abdul Haq and two others vs. The Resident Magistrate Uch Sharif, and others (PLD 2000 Lhr. 101) and "Muhammad Aslam vs. Station House Officer and others (1993 MLD 152), to urge that in the facts and circumstances of the case, the writ petition is competent and no factual controversy is involved.
I have gone through the file of this case. Now I have already reproduced above the material contents of the writ petition, the report of the DPO., Multan pursuant to inquiry instituted by the DIG and the reply of Respondent No. 6 Now there is no denial that the petitioners were in lawful possession of the building in question under agreement admittedly entered into between the Petitioner No. 1 and the predecessor in interest of Respondent No. 6. Now despite verbosity in the said inquiry report, the DPO has not been able to deny that the police was present when the dispossession took place. According to him the presence was necessary to maintain peace. Now Respondent No. 6 has alleged default inpayment of rent and personal requirement of the property and then she has abruptly stated that on her request the petitioners themselves left the property and in fact while doing so they were stopped from removing their goods. She has further proceeded to say that the police was called by the petitioners. The fact remains that till 21.8.2005, the petitioners were in legal possession when on the said date they were dispossessed in presence of the police which according to the DPO had gone there to protect the widow of the late DIG.
Now I will not be commenting upon the allegations of default and the plea of personal use which will, of-course, be looked into by a learned Rent Controller. However, assuming that the default was so committed and the property is required personally by the respondent-lady or her children bonafide, Section 13 of Punjab Urban Rent Restriction Ordinance, 1959 lays down in mandatory terms that a tenant in possession of a building shall not be evicted therefrom except in accordance with the provisions of Section 13. Now the said provisions of law narrates the grounds on which a tenant can be ordered to be ejected on application of a landlord by the Rent Controller. This includes default in payment of rent being alleged by the respondent (Section 13(2)(i) and bonafide personal requirement (Section 13(3). Now even if it be assumed that the petitioners had walked out of the building still Respondent No. 6 could not have ejected them in view of Section 13(2) (V) which provides the necessary ingredients of the ground of ejectment if a tenant ceases to occupy the building.
Now the said objections of the learned AAG stand fully answered in the D.B. Judgment of this Court in the case of "Abdul Haq and two others", cited above. In all the above noted case, cited by the learned counsel for the petitioners, the tenants were ejected otherwise than in due course of law and ordered to put back in possession. This writ petition is allowed and the Respondent No. 1 is directed to take steps for delivering back of the possession of Building No. 96-A/I., Gulgashat Colony, Multan to the petitioners, not later than noon tomorrow and to file a report in this Court accordingly. Respondent No. 6 or any other L.R. of late Hameed Aslam Malik or all of them can file an ejectment petition on the grounds available to them under the law for ejectment of the petitioners from the said building. In case such as ejectment petition is filed, the learned Rent Controller shall take all steps to decide the same not later than three months from the date of institution, of-course, in accordance with law. A copy of this order to be remitted to the learned District Judge, Multan for imparting necessary instructions in the matter.
No orders as to costs.
(Javed Rasool) Order accordingly.
PLJ 2006 Lahore 1012
Present: Mian Saqib Nisar, J.
FAZAL ELAHI--Petitioner
versus
NOOR AHMAD and 2 others--Respondents
W.P. No. 6953 of 2005, heard on 27.3.2006.
(i) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24--West Pakistan General Clauses Act (VI of 1956), S. 8--Connotation of word "of"--Held: Word "of" in S. 24 means that 30 days time should be reckoned after the day of the institution of suit--It was in consonance with S. 8. of West Pakistan General Clauses Act (VI of 1956) which provided that the first day in the series of days providing a particular period for doing some act or performing a duty had to be excluded. [P. 1014] A
(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24(2)--Zar-e-Soem--Dismissal of suit for non-depositing Zar-e-Soem, within 30 days--Validity--Held: The day on which order was passed by Court for deposit of zar-e-soem should be excluded--As petitioner had deposited it on 30th day so it was declared as within time--Impugned order were set aside. [P. 1015] B
2003 CLC 1597 & 2003 CLC 1661, ref.
Ch. M. Lehrasib Khan Gondal, Advocate for Petitioner.
Mr. Saleem Akram Ch., Advocate for Respondents.
Date of hearing 27.3.2006.
Judgment
On 21.10.2004, the petitioner brought a suit for the pre-emption, against Respondent No. 1, whereupon, the same day, the learned trial Court, issued summons to Respondent No. 1, for 20.11.2004 and directed the petitioner to deposit the zar-e-soim within 30 days, in the precise words of the order " "; the petitioner made the deposit on 20.11.2004. But on that date, the Court dismissed the petitioner's suit holding "Instant suit was filed on 21.10.2004. Plaintiff was ordered to deposit Zare soam within 30 days of filing of instant suit. Zar-e-soam was deposited on 20.11.2004 on 31st day of filing of suit i.e. beyond the period fixed in Sec. 24 (1) Punjab Pre-emption Act 1991. So the suit is not maintainable because of clear violation of enacted law. So instant suit is dismissed under Section 24(2) of Punjab Pre-emption Act, 1991"; the petitioner challenged this through appeal, which has been dismissed on 29.3.2005; the learned Court of appeal has relied upon the judgment reported as Muhammad Jehangir vs. Muhammad Abbas and two others (2004 CLC 538), while concluding that the period of 30 days should be counted by including the day of the institution of the suit and that the period of 30 days cannot be extended by the Court. Hence this writ petition.
Learned counsel for the petitioner has contended that the deposit of zar-e-soim has been made by the petitioner within 30 days time, as provided by the provisions of Section 24 of the Punjab Pre-emption Act, 1991 and that the time of 30 days has to be reckoned from the day following the one on which the Court has passed the order u/S. 24. In this behalf, he has placed reliance on the cases reported as Ghulam Mustafa Khan vs. Ashiq Hussain etc. (2003 CLC 1661) and Malik Aman vs. Mst. Bibi Amraizan (PLD 1986 Peshawar 58) and Ghulam Hassan etc. vs. Jamshaid Ali, etc. (2001 SCMR 1001).
Conversely, the learned counsel for the respondent has argued that according to the law laid down in the case reported as Muhammad Jahangir vs. Muhammad Abbas and 2 others (2004 CLC 538); thirty days are to be counted from the date, when the suit has been instituted and as it was filed on 21.10.2005, the order was also made on that date, resultantly, counting the said day, the deposit should have been made till 19.11.2005 and because it was delayed by one day, therefore, the suit has been rightly dismissed by the learned trial Court u/S. 24(2) of the Punjab Pre-emption Act, 1991, (the Act).
Heard. The precise question to be considered and determined in this case, is whether the day on which the order of zar-e-soim was passed by the Court, should be excluded or included. Section 24(1) of the Act, empowers, rather cast a duty upon the Court to pass an order directing the plaintiff to make the deposit within such time, as may be fixed by the Court. However a rider under proviso to this section has been placed upon the authority of the Court that such time shall not exceed 30 days (of the filing of the suit). the word "of" appearing in this proviso is of an immense significance and therefore, needs proper interpretation. According to the Black's Law Dictionary, Sixth Edition at page 1080, the word "of" means "A term denoting that from which anything proceeds; indicating origin--------. The word has been held equivalent to after; at, or--------from." As per Chambers Concise, 20th Century Dictionary, at page 671, the word has been defined to mean "from";. Thus on the basis of the above meanings, it is clear that the expressions/words "of" "from" or "after" are inter changeable and analogous terms, which have been used by the legislature in the different statutes but to signifying the same meaning, therefore, when the word "of" is construed in its proper context, as used in the provio, it shall mean that 30 days time, shall be reckoned after the day of the institution of the suit. The above interpretation of this word, is also in consonance with the provisions of Section 8 of the West Pakistan General Clauses Act, 1956, which reads as below:--
"It shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time to sue the word "from" and for the purpose of including the last in a series of days or any other period of time to use the word "to".
According to the above section, the first day in the series of days providing a particular period for doing same act or performing a duty, has to be excluded.
(Javed Rasool) Revision accepted.
PLJ 2006 Lahore 1015
Present: Muhammad Akhtar Shabbir, J.
MUHAMMAD ALI--Petitioner
versus
ADDL. DISTRICT JUDGE, JARANWALA and 2 others--Respondents
W.P. No. 16917 of 2003, heard on 19.1.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. VIII, R. 1--Filing of written statement--Held: Provision is a procedural one and all procedural laws are designed to promote the ends of justice--Courts never take a fetish of technicalities, so as to loose intention or philosophy of administration of justice to decide the lis in accordance with respective rights of the parties. [Pp. 1018 & 1019] C
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. VIII, R. 1--Second Proviso--Condition of only adjournments for filing written statement--Interpretation of--Held: Second is also a directory one--Further held: Different provisions should be construed harmoniously so as to advance the purpose of a substantive provision of law--No provision would be pressed into service in order to defeat the real object of main provision. [P. 1019] D
(iii) Civil Procedure Code, 1908 (V of 1908)--
----O. VIII, R. 10--Provision of O. VIII, R. 10 would be attracted only where any party from whom written statement is so required fails to present the same within the time fixed by Court--Both Courts had passed the order in violation of settled law--Petition allowed. [P. 1019] E & F
(iv) Interpretation of Statute--
----First proviso--Interpretation of word "Ordinary"--Held: Legislature has specifically incorporated the word "Ordinary" to convey that the period of 30 days cannot be adhered to in all circumstances--The word gives a discretion to the Court to extend the period is suitable cases--Further held: Where doing of an act is bound by time but is qualified by term "Ordinarily" it shall necessarily imply that such provision of law is intended to be directory and not mandatory. [Pp. 1017 & 1018] A & B
PLD 2001 SC 499; PLD 1974 SC 134; 2000 SCMR 1305; PLD 2002 SC 491 & 2003 YLR 1075, ref.
Mr. S. Abid Imran Tirmizi, Advocate for Petitioner.
Mr. Riaz Ahmad Katoria, Advocate for Respondent No. 3.
Date of hearing : 19.1.2006.
Judgment
Facts giving rise to present writ petition are to the effect that Shaukat Ali Respondent No. 3 had filed a suit for possession through specific performance of contract against the present petitioner (defendant) who appeared in the Court on 12.12.2001 whereupon the case had been adjourned to 16.1.2002 for filing written statement on 31.1.2002 and 15.2.2002. The written statement had not been submitted on the above said dates and defence has been struck off. The case was adjourned for respondents evidence. The order dated 15.2.2002 had been challenged through a revision petition, which came up for hearing before the learned Addl. District Judge, who dismissed the same vide order dated 9.10.2003.
Learned counsel for the petitioner contends that by closing the defence of the petitioner, he has been ousted from the process and deprived of the opportunity of producing his evidence in support of his assertion. Further contends that it is settled principle of superior Courts that the litigant should not be punished mere on technicality of procedure.
On the other hand, learned counsel for the respondent vehemently opposed the arguments of the learned counsel for the petitioner contending that the case could not be adjourned beyond the period of 30 days and more than two dates.
I have heard the arguments of the learned counsel for the parties and perused the record.
The petitioner's right to file written statement had been struck off on the ground that the Court is not competent to grant more than two opportunities to the party beyond 30 days.
Whether the provisions of order 8 Rule 1 CPC is mandatory or directory and what is the effect of the Notification No. 300/Rules/XI-Y-26 dated 2.10.2001, the provision of Order 8 Rule 1 CPC is reproduced for further ready reference to examine the said provision of law.
Written statement:--The defendant may, and, if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence:
{Provided that the period allowed for filing the written statement shall not ordinarily exceed (thirty days)}. The Lahore High Court has further arrayed a proviso to the effect that "not more than two adjournments should be granted for presenting a written statement (2.10.2001). While construing the definite intention and purpose of the legislature putting restriction of 30 days in allowing the time for filing written statement was to curtail in ordinate delay and to expedite the trial even at the initial stage of the filing of the written statement. For the purpose the period of 30 days has been fixed and further the High Court has added a proviso that not more than two adjournments shall be granted for the purpose.
As per first proviso of Rule 1 of Order 8, the period allowed for filing written statement shall not ordinarily exceed 30 days and according to the basic principle of the interpretation of the statute, no word in the statute is redundant and has to be given, the specific meaning which it intends to convey. The Legislature has specifically incorporated the word `ordinarily" to convey that this period of 30 days cannot be adhered to in all circumstances. The use of the term "ordinarily" gives a discretion to the Court to extend this period in suitable cases.
To strengthen this arguments, reference can be made to the period of limitation which is provided either by the Limitation Act or by a Special Statute wherein the period within which a particular act has to be done in unconditionally specified but the Court in suitable cases is empowered to extend the period of limitation provided "sufficient reasons" and special circumstances are advanced. Where doing of an act is bound by time but is qualified by term "ordinarily", it shall necessarily imply that such provision of law is intended to be directory and not mandatory.
The superior Courts have exhaustively dealt with the word "shall" used in the statute and made this distinction whether it indicates the mandatory or directory provisions.
The Hon'ble Supreme Court while in a case of Punjab Pre-emption Act interpreting the word used in Section 31 of the Punjab Pre-emption Act which envisages as under:--
"Notice.--(1) The officer registering the sale-deed or attesting the mutation of a sale shall, within two weeks of the registration or attestation, as the case may be, given public notice in respect of such registration or attestation.
The notice under sub-section (1) shall be deemed to have been sufficiently given if it is displayed on the main entrance of mosque and on any other public place of the village or place where the property is situated.
The charges of the notice under sub-section (2) shall be recovered from the vendee by the officer registering the sale or attesting the mutation, as the case may be, at the time of such registration or attestation."
The Hon'ble Judges of the Apex Court in case of Mian Asif Islam vs. Mian Muhammad Asif and others (PLD 2001 SC 499) have observed that admittedly the word "shall" used in Section 31 of the said Act does not carry any penal clause in case of non-compliance of the affixation of public notice. Therefore, the word "shall" used in Section 31 of the said Act is directory in nature. This observation has been made bases on the judgment of the said Court in case of Niaz Muhammad Khan vs. Mian Fazal Raqib (PLD 1974 SC 134). As a general rule a statute is understood to be directory when it contains matter merely of direction, but it is mandatory when those directions are followed by an express provision that in default of following then the effect shall be null and void. In absence of a penalty for failure to follow the prescribed procedure the provisions are to be taken to be directory and not mandatory. In this context reliance can be placed to the case of Maulana Nur-ul-Haq vs. Ibrahim Khalil (2000 SCMR 1305).
The instant provisions of Order 8 Rule 1 CPC is a procedural and all procedural laws are designed to promote the ends of justice. The Courts of law never take a fetish of technicalities, so as to loose intention or philosophy of administration of justice to decide the lis in accordance with the respective rights of the parties. The second proviso of Order 8 Rule 1 CPC indicates that no more than two adjournments shall be granted also is directory because this direction has been followed by including the period of 30 days in the provision and it is prohibitory command conveyed by the second provision is primarily directed to further the cause of first proviso. If the first provision is a directory, then the second provision shall also be treated as such. It is also a settled principle of interpretation of statute that the different provisions of the statutes should be construed harmoniously, so as to advance the purpose of a substantive provision of law. No provision shall be pressed into service in order to defeat the real object of the main provision.
In another case of Muhammad Anwar Khan and 56 others vs. Ch. Riaz Ahmad and 5 others (P.L.D. 2002 S.C. 491), the Hon'ble Judges of the Supreme Court have observed that time and again, it is stated by the superior Courts that rules and regulations are only meant to streamline the procedure and administer the course of justice but not to thwart the same. The Courts have always preferred the decision of cases on merits and technicalities have always been discouraged. By using of the word "ordinarily" in the proviso indicates that period of 30 days cannot be adhered to in all circumstances. Use of term "ordinarily" gives a discretion to the Court to extend the period in suitable cases as laid down in the case of Hassan Usmani, Sole Proprietor and another vs. T.F. Pipes Limited through Managing Director (2003 Y.L.R. 1075).
Another aspect of the case is that the provision of Order 8 Rule 10 CPC would be attracted to a case only where any party from whom the written statement is so required fails to present the same within the time fixed by the Court. The Court may pronounce the judgment or take action as it thinks fit and speaking order should have been passed by he Court. Last opportunity was granted in the proviso only keeping in view the time limit of 30 days. The said provisions are not applicable in the instant case. Both the Courts below have passed the order in violation of settled law by the Superior Courts as laid down in the above referred cases. In such like circumstances, the High Court in exercise of its Constitutional jurisdiction would have ample powers to interfere with the orders passed by the revisional Court.
For the foregoing reasons, this writ petition is accepted. Resultantly, the impugned order passed by the trial Court as well as the learned revisional Court are declared to have been passed illegally, hence set-aside.
(Javed Rasool) Petition accepted.
PLJ 2006 Lahore 1020
Present: Muhammad Jehangir Arshad, J.
MUHAMMAD SARWAR--Petitioner
versus
MUHAMMAD ARSHAD--Respondent
W.P. No. 5337 of 2006, decided on 29.5.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 17--Constitution of Pakistan, 1973--Art. 199--Vast and ample power to allow amendments in pleading--Essentials--Suit for pre-emption--Case was fixed for evidence--Petitioner filed an application regarding amendment in written statement, amendment was allowed--Revision was accepted--Assailed--No cavil to proposition--Validity--Court has got vast and ample powers to allow amendments pleading irrespective of the stage provided same is just and essential for proper decision of the matter in issue and proposed amendment did not change complexion of the suit/defence--Whether proposed amendment was just and essential for correct decision of the suit or sought to add to include a new ground especially when such ground had been created during pendency of a suit against object of law under the suit had been filed. [P. 1021] A
(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 22--Talb-e-Ishhad--Concession can be extended to vendee after original sale to claim compensation--Alleged purchase of construction took place i.e. more than seven months after original sale and five months of making of talb-e-ishhad which even cannot be allowed--Held: First Appellate Court rightly and lawfully set at naught the error committed by trial Court--Petition dismissed. [P. 1022] B & C
Ch Muhammad Yasin Zahid, Advocate for Petitioner.
Date of hearing : 29.5.2006.
Order
The facts giving rise to the instant writ petition in brief are that petitioner purchased agricultural land measuring 34-kanal 6 marla situation in Mouza Shekhum Tehsil Pattoki through Mutation No. 3278 dated 5.6.2004 for an ostensible sale price of Rs. 6,00,000/-. Against the said sale the Respondent No. 1 filed a suit for pre-emption on 1.9.2004 in which the petitioner filed written statement on 12.10.2004. Issues were framed on 1.11.2004 and on conclusion of evidence of Respondent No. 1 the case was fixed for the evidence of the petitioner, when on 6.4.2005 an application was moved by the petitioner before the learned trial Court seeking amendment in the written statement so as to include the following plea in sub-para (2) thereof:--
The Respondent No. 1 filed reply to the said application and the learned trial Court vide order dated 20.1.2006 accepted the application of the petitioner, as such allowed him to amend the written statement. The above order of the learned trial Court was challenged by Respondent No. 1 through revision which was accepted by learned Additional District Judge, Patoki on 13.5.2006, as a result thereof, the order dated 20.1.2006 of the learned trial Court allowing amendment in the written statement, was set-aside and application filed by him seeking amendment was accordingly dismissed. The present writ petition has been directed against the above said revisional order of the learned Additional District Judge, dated 13.5.2006.
It has been argued by learned counsel for the petitioner that Civil Court has got vast powers of allowing amendment in the pleadings in terms of Order 6, Rule 17 C.P.C. and thus the learned Additional District Judge acted illegally and with material irregularity by setting-aside the order of the learned trial Court allowing amendment in the written statement. Further argues that proposed amendment is not only just but also essential for the correct decision of the matter in issue.
The arguments of learned counsel for the petitioner considered and record perused.
There is no cavil to the proposition that Court has got vast and ample powers to allow amendment in the pleadings irrespective of the stage provided the same is just and essential for proper decision of the matter in issue and further the proposed amendment does not change the complexion of the suit/defence. It is however, to be seen whether the proposed amendment is just and essential for correct decision of the suit or the same is sought to add to include a new ground especially when the said ground has been created during the pendency of a suit against the object of law under which suit has been filed. As mentioned above, through Mutation No. 3278 sanctioned on 5.6.2004 the land measuring 34-kanal 6-marla was purchased without any reference to the construction; pre-emption suit was filed by Respondent No. 1 on 1.9.2004 with regard to the sold land through said Mutation; the petitioner filed written statement on 13.10.2004 without any reference to the purchase of superstructure or construction raised thereon. Admittedly, during the pendency of the suit petitioner purchased the structure and construction on the land, if any, through agreement dated 31.1.2005 fully knowing that his earlier sale was already subject to right of pre-emption through the suit filed by Respondent No. 1. The narration of above mentioned facts lead to the conclusion that alleged purchase of construction, etc. through agreement dated 31.1.2005 despite knowledge about the pendency of the pre-emption suit by the petitioner, was nothing but a mala fide attempt on the part of the petitioner to additionally burden Respondent No. 1/pre-emptor and neither under provision of law nor by any stretch of imagination the alleged purchase of construction over the suit land on 13.1.2005 can be allowed to be made a part of the original sale subject of a pre-emption suit. The only concession which can be extended to the vendee after the original sale is to claim compensation with regard to the improvement affected by him in the property he has purchased that too only in terms of Section 22 of the Punjab Pre-emption Act, 1991 before Talb-e-Ishhad and not thereafter. In the present case according to the plaint Talb-e-Ishhad was made on 4.8.2004, whereas the alleged purchase of construction, etc. took place vide agreement dated 31.1.2005 i.e. more than seven months after the original sale and five months of making of Talb-e-Ishhad which even otherwise, cannot be allowed.
The upshot of above discussion is that the learned Additional District Judge through the impugned order rightly and lawfully set at naught the error committed by the learned trial Court while allowing amendment in the written statement and learned counsel for the petitioner has failed to satisfy the Court that the impugned order of learned Additional District Judge suffers from any jurisdictional defect. Resultantly, this writ petition has got no force and the same is dismissed in limine.
(Rafaqat Ali Sohal) Petition dismissed.
PLJ 2006 Lahore 1023 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD ALAM--Petitioner
versus
ADMINISTRATOR, MUNICIPAL COMMITTEE, DISTT. LAYYAH and 2 others--Respondents
Writ Petition No. 3922 of 1999, heard on 31.1.2006.
Interpretation of Statute--
----Service matter--Right of review--No provision for review under Municipal Committee Service Rules, 1969--Held: Right of review has to be expressly conferred by statute and such right is not available to a party--Impugned order being without lawful authority having been passed in exercise of powers not vesting in respondent and it could not be sustained--Petition allowed. [P. 1024] A & B
Rana Muhammad Nazir Saeed, Advocate for Petitioner.
Mr. Saifullah, Head Clerk for Respondent No. 1.
Nemo for others Respondent.
Date of hearing: 31.1.2006.
Judgment
The petitioner was appointed as an Octroi Clerk in BS-5 on 22.5. 1986. He was transferred as Tax Clerk on 5.5.1988. Thereafter he was promoted as Accounts Clerk in BS-6 on 13.4.1989. This post was upgraded as BS-7 and the same scale was granted to the petitioner vide order dated 28.6.1989. This order remained unchallenged. The post was then upgraded to BS-10 vide Resolution No. 6 dated 20.1.1991 but this Resolution was withdrawn on 22.4.1992 and he remained in BS-7. He was then transferred as Head Clerk on 9.6.1992 in BS-7. This post was later upgraded to BS-11 vide Resolution No. 13 dated 24.12.1992 and the said scale was granted to the petitioner but later the Deputy Commissioner withdraw the higher pay scale as well as upgradation of the post. On 9.9.1993, the petitioner was transferred as an Octroi Clerk by Respondent No. 1. He filed an appeal against this order which was rejected by the Deputy Commissioner on 15.2.1994. He was reverted to BS-5 on 14.4.1994. He filed a review which was partly allowed by Respondent No. 3 on 18.9.1994 and he was posted as Accounts Clerk in BS-7. Order was implemented on 24.12.1995. A review application was filed by Respondent No. 1 which was dismissed by Respondent No. 3 observing that there is no provision for review under Municipal Committees Service Rules, 1969. Thereafter Respondent No. 2 filed a review application which was allowed by Respondent No. 3 on 17.3.1999.
Learned counsel for the petitioner contends that the review being a substantive right and there being no provision for review in the said Rules, the impugned order dated 17.3.1999 (Annex. C) of Respondent No. 3 is without lawful authority. He relies on the cases of Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94), Ali Muhammad through Legal Heirs and others vs. Chief Settlement Commissioner and others (2001 SCMR 1822) and Messrs Kasur Oil Mills (Pvt.) Limited v. Federation of Pakistan, Law Justice & Human Rights Division through President of Pakistan, Islamabad and others (2001 MLD 665).
The respondents have been duly served. The said official, present, refers to the report and parawise comments filed by Respondent No. 3. Respondent No. 2 is represented by two learned counsel namely Kanwar Nisar Ahmad and Mian M. Aslam Mujahid, Advocates but none of them has turned up despite repeated calls. Respondent No. 3 is proforma.
I have gone through the copies of several documents appended with this writ petition. Now Respondent No. 1 has admitted all material facts in the comments and has stated that since the Octori stand abolished it has no objection if both the parties i.e., the petitioner and Respondent No. 2 keep on working in the posts being held by them. Now so far as the said contention of the learned counsel is concerned, I do find that there is no provision for review in the said Rules. Now in the said judgments being relied upon by the learned counsel for the petitioner, it has been laid down that the right of review has to be expressly conferred by the Statute and this right is not otherwise available to a party. Needless to state that Respondent No. 3, in the first instance, dismissed the review application filed by Respondent No. 1 on the same grounds.
I have further noted that the impugned order dated 17.3.1999 although to the detriment of the petitioner yet it does not as well grant any benefit to Respondent No. 2. The plea taken by Respondent No. 2 was that the should be promoted to a post in BS-7. The said relief was not granted and both the persons were directed to be reverted to the Octroi cadre.
The impugned order being without lawful authority on its face, having been passed in exercise of powers not vesting in Respondent No. 3, it cannot be sustained. Writ petition accordingly is allowed. The impugned order dated 17.3.1999 passed by Respondent No. 3 is declared to be without lawful authority and as such illegal and void and is set aside. It is further observed that Respondent No. 2 may resort to any lawful remedy available to him for the relief he seeks.
(Rafaqat Ali Sohal) Petition allowed.
PLJ 2006 Lahore 1025
Present: Sh. Hakim Ali, J.
AHMAD HASSAN--Petitioner
versus
JUDGE FAMILY COURT, SADIQABAD and another--Respondents
W.P. No. 3307 of 2005/BWP, heard on 5.12.2005.
West Pakistan Family Court Act, 1964 (XXXV of 1964)--
----S. 9(1)(b)--New added provision--No separate suit shall lie--Family Court to treat the written statement of wife in a suit for restitution of conjugal rights as plaint for dissolution of marriage--Suit for restitution of conjugal right was filed by petitioner availing of the opportunity and providing the benefit to wife--In her written statement she had clearly prayed for grant of decree for dissolution of marriage on basis of option of puberty or in alternate on the basis of Khula--High Court not in agreement with counsel because procedure prescribed in Ss. 7 & 8 had proceeded the amendment inserted in S. 9, therefore, no need to proceed with provision of Ss. 7 & 8 of the West Pakistan Family Courts Act, 1964--It is pertinent that after filing of written statement with prayer for grant of dissolution of marriage, plaintiff had not asked the Court to permit him to file reply to it--Even in High Court, no such claim had been raised--Held: Courts below has correctly proceeded with suit--Court had found no jurisdictional defect in judgment and decree passed by it--Petition dismissed. [Pp. 1027 & 1028] A & B
Sardar Muhammad Hussain Khan, Advocate for Petitioner.
Ch. Masood Ahmad Bajwa, Advocate for Respondent No. 2.
Date of hearing: 5.12.2005.
Judgment
With the concurrence of learned counsels for the parties, this writ petition is being taken up and disposed of as a notice case.
A judgment and decree dated 14.6.2005, granting dissolution of marriage to defendant, in a suit for restitution of conjugal rights, instituted on 14.9.2004 by Ahmad Hassan, the writ petitioner, by learned Judge Family Court in Family Suit No. 17 of 2005 had been challenged through the instant writ petition.
Giving details of the case, learned counsel for Ahmad Hassan, the writ petitioner, submits that Ahmad Hassan, had filed a suit for restitution of conjugal rights against Mst. Naziran Bibi, Respondent No. 2, before the learned Judge Family Court. After the filing of the written statement, issues were framed and the parties had produced their evidence, but during the pendency of the suit, when Ahmad Hassan plaintiff had felt that Nikah performed with Mst. Naziran Bibi was being disputed, he decided to file a suit for jactitation of marriage against Mst. Naziran Bibi. Accordingly, he prayed for withdrawal of his suit for restitution of conjugal rights on 24.5.2005 but the learned Judge Family Court while dismissing his suit, passed a decree of dissolution of marriage in favour of Mst. Naziran Bibi on 14.6.2005. Learned counsel argues that the decree has been passed by treating the written statement as a plaint which could not be passed by the learned Judge Family Court, because Mst. Naziran Bibi, the defendant had not filed a separate suit for grant of decree for dissolution of marriage. It has been submitted by the learned counsel that the written statement, if it was to be considered as a plaint, then proceedings were to be reversed and conducted in accordance with Sections 7 and 8 of the West Pakistan Family Courts Act, 1964, and the petitioner should have been granted an opportunity of hearing afresh. In the suit of restitution of conjugal rights filed by the writ petitioner, which was withdrawn by him, the learned Judge Family Court had no jurisdiction/power to grant the impugned judgment and decree to wife of the petitioner.
Refuting the arguments, it has been replied by the learned counsel for Respondent No. 2 that no illegality/jurisdictional defect has been committed by the learned Judge Family Court upon the grant of the impugned decree as Section 9(1b) of the West Pakistan Family Courts Act, 1964 (inserted through Amendment brought in Section 9, in the year 2002) had conferred power upon learned Judge Family Court, to pass such a decree. Explaining the case of the aforesaid lady respondent Mst. Naziran Bibi, it has been stated by the learned counsel that in the written statement, Mst. Naziran Bibi had prayed for grant of decree on the basis of option of puberty or in the alternate a decree of dissolution of marriage on the ground of Khula. So, the decree was correctly passed by the learned Judge Family Court, after framing the issues and recording the evidence of the parties.
After considering the arguments of both the learned counsels, perusal of record of the case and keeping in view the amendment of law, which has been brought into Section 9 of the West Pakistan Family Court Act, 1964, on 1.10.2002, I have arrived at the conclusion that the learned Judge Family Court has rightly passed the decree in favour of Mst. Naziran Bibi, respondent. To appreciate the new amendment added in Section 9 of the West Pakistan Family Courts Act, 1964, it is reproduced as under:
"9. (1) Written statement.--
(1a)
(1b) A defendant wife may, in the written statement to a suit for restitution of conjugal rights, make a claim for dissolution of marriage including khula which shall be deemed as a plaint and no separate suit shall lie for it:
Provided that the proviso to sub-section (4) of Section 10 shall apply where the decree for dissolution of marriage is to be passed on the ground of khula.
(2)
(3)
(4)
(5)
(6)
(7)
(8) "
"4. Whether she is entitled to get relief as prayed for by her in Paragraph No. 1 of written statement? OPD"
So, both the parties had become conscious of the dispute in issue with the framing of these issues and had known the version of each other which was pleaded by both the parties in their respective pleadings. Written statement was considered as a plaint by Ahmad Hassan, plaintiff, himself as he had tried his luck by producing his evidence which consisted of his own statement as PW. 1 and statement of Ghulam Nabi as PW.2. He had brought on record all his evidence which he had considered was required to contest the case of Mst. Naziran Bibi and to prove his own case. As DW.1, Mst. Naziran Bibi had also appeared to prove her case, therefore, both the parties had exhausted their efforts to prove their own versions. Accordingly, at the stage of trial, when evidence was complete and the plaintiff had felt that the case was being decided on merit, against him, he had prayed for withdrawal of his case. The prayer of Ahmad Hassan was accepted and his suit was dismissed, but it was rightly not accepted by the learned Judge Family Court with regard to dissolution of marriage, and treating the written statement as plaint under Section 9(1b) of West Pakistan Family Courts Act, 1964, learned Judge Family Court correctly passed the decree upon merit of the case. So far the objection of the learned counsel for the petitioner that procedure of Sections 7 and 8 was to be followed, I am not in agreement with learned counsel because procedure prescribed in Sections 7 and 8 has preceded the amendment inserted in Section 9, therefore there was no need to proceed with the provision of Sections 7 and 8 of the West Pakistan Family Courts Act, 1964. It is pertinent that after filing of written statement with prayer for grant of dissolution of marriage, plaintiff had not asked the Court to permit him to file reply to it. He had not laid any more claim to or in response to it. Even in this Court, no such claim has been raised. Accordingly, the learned Court below has correctly proceeded with the suit. I have found no jurisdictional defect in the judgment and decree passed by it. Therefore, the writ petition is dismissed, with no order as to costs.
(Rafaqat Ali Sohal) Petition dismissed.
PLJ 2006 Lahore 1028 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
Malik AHMAD NAWAZ BHUTTA and another--Petitioners
versus
ELECTION COMMISSION OF PAKISTAN, ISLAMBAD through its CHIEF E.C.P. and 5 others--Respondents
W.P. No. 5790 of 2005, heard on 13.3.2006.
Constitution of Pakistan, 1973--
----Art. 199--Punjab Local Government Election Rules, 2005, R. 25--Election process completed and petitioners declared successful and result was notified accordingly--Upon move of respondents rival candidates order of re-poll passed by Chief Election Commissioner--Validity--Once the process of election is completed, the same is to be called in-question only by filing of an election petition before a tribunal and such tribunals have already been appointed and nominated by the Chief Election Commission. [Pp. 1032 & 1033] C
Punjab Local Government Ordinance, 2001 (XIII of 2001)--
----S. 150--Punjab Local Government Election Rules, 2005, Rr. 4 & 25--Constitution of Pakistan, 1973, Art. 199--Petitioners contested election for the seat of Nazim and Naib Nazim and were declared returned--Respondents approached Chief Election Commissioner who directed a re-count--During process of re-count by the Returning Officer, it was found that at polling station a bag containing 349 ballot papers of petitioner was missed--D.R.O. addressed a letter to Chief Election Commission suggesting repoll--Repolling ordered on terms of Rule 25 of Punjab Local Government Election Rules, 2005--Assailed--Validity--There was no allegation that at any of the polling stations was interrupted or obstructed or any ballot box used at the polling station was taken out unlawfully or otherwise from the custody of the Presiding Officer while the polling was in progress--The results had been prepared, consolidated and declared in the manner prescribed--Order directing a re-poll in wholly without lawful authority--Disputed bag disappeared at a point of time when the results had been prepared, consolidated and declared--This being so the requisite inquiry could have been instituted only by Election Tribunal having been moved in accordance with Rules--Held: The re-poll could not have been ordered in the circumstances of the present case under Rule 25--Petition allowed. [Pp. 1032 & 1033] A, B, D & E
M/s. Muhammad Arif Alvi and Malik Khan Langah, Advocates for Petitioners.
Mr. Zafar Ullah Khan Khakwani, A.A.G. for Respondents.
Mian Abbas Ahmad, Advocate for Respondents Nos. 5 and 6.
Date of hearing: 13.3.2006.
Judgment
The petitioners, on the one hand, and
Respondents Nos. 5 and 6, on the other, contested elections to the seats of
Nazim and Naib Nazim in Union Council No. 10, District Lodhran. Results were prepared by the Presiding Officers and consolidated by the Returning Officer.
The petitioners were declared returned with 2043 votes while the Respondents
Nos. 5 and 6 got 1673 votes. The result was accordingly notified vide Annex:
B'. Now according to the written statement of the Respondents Nos. 5 and 6, they approached the learned Chief Election Commissioner of Pakistan who directed a re-count. While proceedings were being undertaken by the Returning
Officer for the said re-count, it was found that at Polling Station No. 4, a bag containing 349 ballot papers of the petitioners was missing. Upon receipt of a report from the Returning Officer, the learned District Returning Officer addressed a letter on 31.8.2005 to the Chief Election Commission of Pakistan
(Annex:D') suggesting that a re-poll be ordered at Polling Station No. 4 and necessary funds be made available. Pursuant to this, a Deputy Secretary (LGE) addressed a letter (Annex: `F') to the District Returning Officer on 19.9.2005 stating that the Hon'ble Chief Election Commissioner (CEC) has directed that re-polling at Polling Station No. 4 may be held on 26.9.2005 in terms of Rule 25 of the Punjab Local Government Elections Rules, 2005. Present writ petition was filed in this Court on 22.9.2005. It came up before the Court on 23.9.2005 when a pre-admission notice was issued for 27.9.2005, it was further directed that the re-poll shall be subject to the final decision of the case. The writ petition was admitted to regular hearing on 27.9.2005. Notices were issued.
Mr. Muhammad Arif Alvi, Advocate/learned counsel for the petitioners contends that upon a plain reading of the said Rule 25 of the Local Government Election Rules, 2005 having been relied upon in the said letter (Annex: `F') would show that no circumstances existed warranting an order for a re-poll. He points out that all orders passed for re-count were recalled by the CEC vide general order issued on 1.9.2005. Learned A.A.G. is of the opinion that in the circumstances of the case, the re-poll was rightly directed. Mian Abbas Ahmad, Advocate/learned counsel for the Respondents Nos. 5 and 6 contends that notwithstanding the provision of the said rule, the learned CEC has sufficient jurisdiction to pass an order for re-poll under Article 4 of the Local Government Elections Order, 2000 and this Court would not be having jurisdiction to question the same.
I have given some thought to the respective contentions of the parties. Now the Local Government Elections Order, 2000, was promulgated as it was expedient to provide for the conduct of Local Government Elections by the CEC. Now under Section 150 of the Punjab Local Government Ordinance, 2001, the Local Government Elections under the said ordinance shall be conducted by the CEC in pursuance of the Local Government Elections Order, 2000. I deem it appropriate to reproduce the said Section 150 hereunder:
"150. Authority for Local Government Elections.--(1) The Local Government Elections under this Ordinance shall be conducted by the Chief Election Commissioner in pursuance of the Local Government Elections Order, 2000 (Order No. 8 of 2000).
(2) The Chief Election Commissioner may require any person or authority to perform such functions or, render such assistance for the purpose of elections, including preparation of electoral rolls and disposal of election petitions and other disputes under this Ordinance as deemed fit.
(3) The Chief Election Commissioner may authorize any of his officers to exercise any of his powers and to perform any of his functions under this Ordinance.
(4) The elections to the Local Governments shall be held every four years so as to enable their installation on the 14th day of August of the year in which elections are held."
"25. Stopping of poll.--(1) The Presiding Officer of a polling station shall stop the poll and inform the Returning Officer that he has done so if--
(i) the poll at the polling station is, at any time so interrupted or obstructed for reasons beyond the control of the Presiding Officer such that it cannot be resumed during hours fixed under Rule 24; or
(ii) any ballot box used at the polling station is unlawfully taken out of the custody of the Presiding Officer, or is accidentally or intentionally destroyed or lost, or is damaged or tampered with to such an extent that the results of the poll at the polling station cannot be ascertained.
(2) Where a poll has been stopped under sub-rule (1), the Returning Officer shall immediately report the circumstances to the District Returning Officer, who shall direct a fresh poll at that polling station and fix a date for such polls, unless he is satisfied that the result of the election has been determined by the polling that has already taken place at that polling station taking into account the results of the polling at other polling station in the same union.
(3) Where an order under sub-rule (2) has been made, the Returning Officer shall notify the day for a fresh poll and fix the place at which and the hours during which such fresh poll shall be taken.
(4) Where a fresh poll taken under sub-rule (3) at a polling station, all voter, entitled to cast their vote shall be allowed to vote and no vote cast at the poll stopped under sub-rule (1) shall be counted; and the provisions of the Ordinance and these rules shall apply to such fresh poll."
Now the admitted facts of this case for purposes of this writ petition are that there is no allegation that poll at any of the polling stations was interrupted or obstructed or any ballot box used at the polling station was taken out unlawfully or otherwise from the custody of the Presiding Officer while the polling was in progress. There is no allegation that the polling at any polling station was stopped and report in the matter was made to the Returning Officer. It is also an admitted fact that the results had been prepared and consolidated and declared in the manner prescribed in the said rules.
In the above state of affairs, the order directing a re-poll in the terms of the said Rule 25 is wholly without lawful authority.
Now coming to the contention of Mian Abbas Ahmad, he relies on Article 4 of the Elections Order, 2000, which provides that anything required to be done for carrying out the purposes of the said order for which no provision or no sufficient provision exist shall be done by such authority in such manner as the CEC may direct.
Now under the said Rules, the process of a contested election has been provided for in detail. The mode in which it commences, continues and concludes has been stated with clear details in the said Rules. The provision for stopping a poll or to order a re-poll is also there. It cannot, therefore, be said that there is no provision or sufficient provision in the matter of ordering a re-poll. Now once the process of the election is completed, the same is to be called in question only by filing of an election petition before a tribunal and it is a matter of record that such Tribunals have already been appointed and nominated by the learned CEC.
It is also a matter of public knowledge that the learned CEC and withdrawn all orders for re-count by a general order notified on 1.9.2005 upon the publication of the results and appointment of the Election Tribunals.
It is further a matter of record that the said bag containing the valid votes of the petitioners at Polling Station No. 4 in the constituency disappeared at a point of time when the results had been prepared consolidated and declared. This being so, the requisite inquiry could have been instituted only by learned Election Tribunal having been moved in accordance with the said Rules. There is no manner of doubt that a re-poll could not have been ordered in the circumstances of the present case under Rule 25 of the said Rules as has been conveyed vide the said letter Annex: `F' of the Deputy Secretary (LGE).
For all that has been discussed above, this writ petition is allowed, the impugned order/direction contained in letter dated 19.9.2005 (Annex: `F') is declared to be without lawful authority and is accordingly set aside. No orders as to costs.
(M. Ajmal Rana) Petition allowed.
PLJ 2006 Lahore 1033 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
SHAKIR MUHAMMAD and 3 others--Petitioners
versus
MUHAMMAD HAYAT--Respondent
Civil Revision No. 109 of 1997, heard on 15.5.2006.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 99 & 115--Punjab Pre-emption Act, (IX of 1991), S. 13--Suits Valuation Act, 1887, S. 11--Pre-emption suit of respondent dismissed by trial Court--Appeal accepted and case was remanded observing that issue regarding talabs was not framed--Assailed--Validity--Both the parties were fully awared of the significance of Issue and the respondent knew what has to be proved by him--Prejudice possibly could have been claimed for non-framing of a specific issue mentioning talabs--Respondent did make an attempt to lead the evidence on talbs--Additional District Judge has acted without jurisdiction in entertaining the objection remanding the case to the trial Court--Revision allowed and decree of the Addl. D.J. set aside with result that the appeal filed by the respondent would be deemed to be pending before the District Judge into shall examine the records, hear the parties and decide all the issues and consequently the appeal on its merits. [P. 1036] A, C, D, E & F
Suits Valuation Act, 1887 (VII of 1887)--
----S. 11--Civil Procedure Code (V of 1908), S. 115--Dismissal of pre-emption suit--Pecuniary jurisdiction of the trial Court--Objection accepted and case was remanded by appellate Court--Validity--Respondent had himself fixed the value of the suit--The value was upheld by trial Court by rejecting the objection not of the respondent but of the petitioners and the matter was not pressed--Held: Section 11 of the Suits Valuation Act places an express bar upon an appellate Court to entertain an objection to the pecuniary jurisdiction of the trial Court unless and until the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded--Appellate Court is satisfied that the over-valuation or under-valuation of the suit has prejudicially affected the disposal of the suit or appeal on merits. [P. 1036] B
Mr. Riaz Muhammad Khan Sadozai, Advocate for Petitioners.
Mian Ahmad Hassan, Advocate for Respondent.
Date of hearing: 15.5.2006.
Judgment
Vide Mutations Nos. 1690 and 1691 attested on 28.7.1991 the petitioners purchased the suit land for a consideration of Rs. 1,50,000/-. On 23.11.1991 the respondent filed a suit for possession of the said land by pre-emption. According to him, the land had, in fact, been sold for Rs. 70,000/-. It was claimed that the respondent acquired knowledge of the sale of the land on 29.10.1991 when the petitioners came to the land to get possession and the talb-i-muwathibat was made in presence of all the defendants and the vendor was also present. He claimed to be a Shafi Jar and Khalit. Talb-i-isshad was also pleaded both oral and through a written notice. The petitioners filed a written statement denying the said allegations. Following issues were famed on 12.5.1992:--
Whether the suit is mala fide? OPD.
Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD
Whether the plaintiff is estopped by his words and conduct to file this suit? OPD
Whether the suit is barred by time? OPD
Whether the defendants spent an amount of Rs. 40,000/- upon raising residential rooms, and planting trees over the disputed property and are entitled to recover the said amount by way of the costs of improvements in case the plaintiff's suit is decreed against them? OPD
Whether the defendants incurred an amount of Rs. 11,400/- as expenses of the mutation and the District Council fee, regarding the purchase of the disputed property and are entitled to recover the same in case the suit decided against them? OPD
Whether the plaintiff has no right of pre-emption as against the defendants? OPD
Whether the plaintiff has superior right of pre-emption exercisable under the law? OPP
Whether the disputed sale was effected for consideration of Rs. 70,000/- which was the prevailing market price of the disputed land and the sale price of Rs. 1,50,000/- is fictitious and was not fixed in good faith nor paid? OPP
Whether the plaintiff is entitled to the decree for possession as prayed for? OPP
Relief.
Evidence of the parties was recorded. The learned trial Court found Issues Nos. 1, 2, 4 and 6 against the petitioners while under Issue No. 7 it was held that the respondent has a superior right of pre-emption. However, Issues Nos. 8, 3 and 5 were answered against the respondent while under Issue No. 9 it was found that the actual sale price was Rs. 1,50,000/-. The suit was accordingly dismissed on 25.4.1993. The respondent filed a first appeal which came up for hearing before a learned Additional District Judge, Multan. Now before the learned Additional District Judge the pecuniary jurisdiction of the learned trial Court was questioned. The objection found favour with the learned Additional District Judge and further he observed that a specific issue regarding the talbs had not been framed. He accordingly proceeded to remand the case for fresh decision vide order dated 21.11.1996.
Learned counsel for the petitioners contends that no objection was raised and possibly could be raised by the respondent who was himself the plaintiff to the pecuniary jurisdiction of the learned trial Court during the trial and as such the learned Additional District Judge was not competent to entertain the said objection. According to him, the value fixed by the respondent himself was accepted by both the Courts. In the matter of talbs, learned counsel has taken me through the evidence to demonstrate that the parties were fully aware as to what has to be proved or disproved by them and as such there was no justification for remand. The precise plea is that the learned Additional District Judge ought to have decided the appeal on merits. Learned counsel for the respondent has tried to support the impugned order.
I have gone through the copies of the records, with the assistance of the learned counsel for the parties. I have reproduced the issues above. Upon a reading of the evidence, there is no manner of doubt in my mind that both the parties were fully aware of the significance of Issue No. 8 and the respondent knew what has to be proved by him. No prejudice possibly could have been claimed for non-framing of a specific issue mentioning talbs. I have referred to the plaint also above and the respondent did make an attempt to lead the evidence on talbs.
Now so far as the matter of pecuniary jurisdiction is concerned, the respondent had himself fixed the value of the suit at Rs. 15,000/-. This value was upheld by the learned trial Court by rejecting the objection not of the respondent but of the petitioners. The matter was not pressed any further. Now Section 11 of the Suits Valuation Act, 1887, places an express bar upon an Appellate Court to entertain an objection to the pecuniary jurisdiction of the learned trial Court unless and until the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded. The second condition is that the Appellate Court is satisfied that the over-valuation or under-valuation of the suit has prejudicially affected the disposal of the suit or appeal on its merits. None of two conditions are existing in the present case. This being so, the learned Additional District Judge has acted without jurisdiction in entertaining the said objection and remanding the case back to the learned trial Court.
The civil revision accordingly is allowed. The impugned order and decree dated 21.11.1996 of the learned Additional District Judge, Multan, is set aside. The result would be that the first appeal filed by the respondent shall be deemed to be pending before the learned District Judge, Multan, where the parties shall appear on 7.6.2006. The learned District Judge shall requisition the records and proceed further in the matter either himself or entrust the case to a learned Additional District Judge who shall examine the records, hear the parties and decide all the issues and consequently the appeal on its merits. No orders as to costs.
A copy of this judgment be immediately remitted to the learned District Judge, Multan.
(M. Ajmal Rana) Revision allowed.
PLJ 2006 Lahore 1037 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
M/s. HAQ COTTON MILLS (PVT.) LIMITED LUDDAN ROAD BUREWALA through its PROPRIETOR--Petitioner
versus
CHAIRMAN, CENTRAL BOARD OF REVENUE and 2 others--Respondents
W.P. Nos. 6711 & 6712 of 2004, heard on 8.5.2006.
Sales Tax Act, 1990 (VII of 1990)--
----Ss. 40 & 40-A--Constitution of Pakistan, 1973, Art. 199--Assistant Controller of Sales Tax (Audit)/respondent conducted a raid on the premises of the petitioners and record took into custody maintained by the petitioners regarding business activities--Petitioners were engaged in business of manufacturing and supply of ginned cotton--Assailed--Validity--No warrants were obtained for search conducted and recovery of the records effected by respondents--Requirement of the law can be dispensed with--The counsel was asked whether the Assistant Collector prepared a statement in writing of the grounds of belief that there was a danger that the records or the goods might be moved before the search can be effected u/S. 40, the answer is in the negative--Held: Both petitions allowed, the impugned action of respondent in raiding the premises of the petitioners and consequent proceedings taken pursuant thereto by the respondent are declared to be illegal, void and without lawful authority. [Pp. 1038 & 1040] A, B & C
2003 PTD SC 1034; PLD 1991 SC 630; 2004 PTD 2952 (DB); 2004 PTD 1731; 2003 PTD 2037 rel. 2005 SCMR 37 disting.
Mian Abdul Ghaffar, Advocate for Petitioner.
Ch. Saghir Ahmad, Standing Counsel for Respondent.
Date of hearing: 8.5.2006.
Judgment
This judgment shall decide W.P. No. 6711/2004 and W.P. No. 6712/2004, as common questions are involved. Both the petitioners are stated to be engaged in the business of manufacturing and supply of ginned cotton and as such registered with the Sales Tax Collectorate, Multan. The grievance being made out is that on 29.9.2004 Respondent No. 3 conducted a raid on the respective premises of the petitioners in violation of the provisions of Section 40 of the Sales Tax Act, 1990 and took into custody records maintained by the petitioners regarding their business activities. The learned counsel for the petitioners in these cases relying upon the cases of Federation of Pakistan through Ministry of Finance, Islamabad v. Master Enterprises (Pvt.) Ltd. & 4 others (2003 PTD (SC) 1034); Collector of Customs (Preventive) & 2 others v. Muhammad Mahfooz (P.L.D. 1991 SC 630); N.P. Water Proof Textile Mills (Pvt.) Ltd. through Director, Karachi v. Federation of Pakistan through Secretary, Revenue Division/Chairman, Central Board of Revenue, Islamabad & another (2004 PTD (DB) 2952); M/s. Food Consults (Pvt.) Ltd. Lahore & others v. Collector Central Excise & Sales Tax, Lahore & 2 others (2004 PTD 1731) and M/s. Ahsan Yousaf Textile Mills (Pvt.) Ltd. Faisalabad v. Federation of Pakistan through Ministry of Finance, Islamabad & 4 others (2003 PTD 2037) contends that the said proceedings have been conducted in gross violation of the said Section 40-A of the Sales Tax Act, 1990. Learned Standing Counsel for Pakistan, on the other hand, contends that the proceedings were taken in accordance with the said law and further relies on the case of Collector of Customs, Lahore & others v. Universal Gateway Trading Corporation & another (2005 SCMR 37) to urge that the rule earlier laid in the case reported as P.L.D. 1991 SC 630 has been departed from by the Hon'ble apex Court.
I have examined the files of these cases. Admittedly no warrants were obtained for the search conducted and recovery of the records effected by the respondents. No doubt the said Section 40-A of the Sales Tax Act, 1990, does cater for a situation where the said requirement of law can be dispensed with. However, this is subject to the conditions laid down in the said Section 40-A itself. Now I called upon the learned Standing Counsel as to whether the Assistant Collector prepared a statement in writing of the grounds of belief that there is a danger that the record or the goods may be removed before the search can be effected u/S. 40, the answer is in the negative.
This being so, rule laid down in the said case (P.L.D. 1991 SC 639) become fully applicable. I have also examined the said judgment being relied upon by the learned Standing Counsel (2005 S.C.M.R. 37). Although their lordships were dealing with the case arising under the Customs Act, 1969 but there is no dispute that the provisions i.e. Sections 162 and 163 of the said Act, 1969 are in perimetria with the Sections 40 and 40-A of the Sales Tax Act, 1990. Now I find that in the leading opinion of the Court reference has specifically been made in Para 9 of the judgment, at page 47 of the report, to the compliance by the Deputy Collector Customs and the Provisions of Section 163 of the Customs Act i.e. that the said officer had prepared a statement of grounds of his belief. In fact the Hon'ble Court has recorded finding in para 10 of the judgment that the search was conducted in accordance with the said provisions of law. I deem it appropriate to reproduce the following extract from the said judgment in para-8 thereof at page 46 of the report:
Insofar as the provisions as contemplated in Sections 162 and 163 of the Customs Act, 1969, are concerned, the same have been interpreted in different cases on various occasions and judicial consensus seems to be that "before embarking upon a search without warrant the Customs Officer shall prepare a statement in writing of the grounds of his belief that the goods liable to confiscation are concealed or kept in any place and that there is a danger that they may be removed before a search can be effected under the provisions of Section 162 of the Act. The law further requires that the statement must also mention the goods, documents or things for which the search is to be made. These are stringent requirement prescribed by law in order to ensure that the enormous power of search without warrant given to Customs Officers is exercised honestly and judiciously. By insisting that the grounds for his belief shall be recorded before hand by the Customs Officer concerned, the law seeks to ensure that the search without warrant is made for a bona fide purpose and on reasonable grounds which can be tested later, if challenged by the aggrieved party. To put it differently, it seems that this is a safeguard prescribed by the legislature to ensure that the rights if the citizen in respect of private property are interfered with only for genuine reasons related to the prevention of smuggling and evasion of customs duty, etc. This safeguard can be effective only if the Procedure prescribed by law is faithfully and honestly followed by application of mind in each individual case. Legislative wisdom behind the statutory requirement under Sections 162 and 163, which is legislative wisdom behind it which is to the effect that ordinarily a place is to be searched only after search warrant is obtained from the Magistrate as is contemplated under the preceding section and only in extraordinary cases this section can be dispensed with as is permissible under Section 163 but then grounds are to be stated by the Customs Officer who is allowed this facility for his belief and decision in not obtaining the search-warrant. He must state that grounds which justify apprehension of danger of removal of goods. For example, information is received from such and such person that the party concerned has taken steps or is about to take steps for removal of goods and if search-warrant is obtained the same will consume time or the Magistrate is not available, hence there is no other way but to go for the search without warrant. By providing such statutory requirement, the intention of legislature is to provide safeguard against malafide interference with rights of citizens in respect of property and against violation of right of privacy".
Now this is precisely the rule laid down in the said case of Collector of Customs (Preventive) & 2 others v. Muhammad Mahfooz (PLD 1991 SC 630).
For the reasons stated above, both the writ petitions are allowed, the impugned action of Respondent No. 3 in raiding the premises of the petitioners and consequent proceedings taken pursuant thereto by the respondent are declared to illegal, void and without lawful authority. No orders as to costs.
(M. Ajmal Rana) Petitions allowed.
PLJ 2006 Lahore 1040 [Multan Bench Multan]
Present: Maulvi Anwarl Haq, J.
Mst. MUKHTAR FATIMA--Petitioner
versus
Mst. MUMTAZ FATIMA (deceased) through her L.Rs. and others--Respondents
C.R. No. 616-D of 1995, heard on 1.3.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Gift of agricultural--Declaratory suit of petitioner--Dismissed by trial Court as well as by appellate Court--Assailed--Particulars of the documents mentioned in plaint are also of Exh. P3 which pertained to agricultural land--Having read the two documents together, and there being no attack whatsoever on any of them and in light of judgment in the case of Abdul Hameed High Court found that it was a complete gift and was intended to be so and was so affirmed in the document Exh. by deceased--No right including a right of reversion to the donor or his legal heirs stood reserved. It fact, he created a new stock descent neither recognized by law nor by Islamic Injunctions--Corpus of the property stood transferred to the lady and the condition, if any, shall be void--The lady proceeded to transfer the land in question and none of the heirs including her husband objected--According to Exh. document upon the death of the done the land was to devolve upon the male issue out of M.H. failing which the land was to vest in said M.H.S.--There was no male issue and the only issue was respondent--Predeceased the respondent Exh. P3 did not at all cater for such situation--Respondent had died and the land had vested in M.H., his only heir of first class (Shia law) is the respondent--High Court did not find any grounds being made out for interference with the concurrent finding recorded by the Courts below within he ambit of Section 115 CPC--Civil revision dismissed. [Pp. 1042, 1043, 1044 & 1045] A, B, C, D & E
PLD 1997 SC 730, relied.
Mian Shamsul Haq Ansari, Advocate for Petitioner.
Mirza Manzoor Ahmad, Advocate for Respondent No. 10.
Nemo for Respondents.
Date of hearing : 1.3.2006.
Judgment
On 12.3.1980 the petitioner filed a suit against the respondents. In the plaint, it was stated that the suit property, mentioned in the plaint, was owned by Syed Hussain Ahmad Shah who was a Shia by faith. Mst. Mumtaz Fatima Respondent No. 1 was the daughter-in-law of the said Syed Hussain Ahmad Shah. It was then stated that vide registered gift-deed dated 6.8.1945 Syed Hussain Ahmad Shah transferred the usufruct of the property (land) mentioned at `A' in the heading of the plaint and she could not alienate the property. Then there is reference to a transfer by exchange registered on 11.5.1978 in favour of Respondent No. 8, it was then stated that during the pendency of the suit, the said exchange deed stand cancelled. With these averments, the prayer made was that the petitioner is the owner of 1/8 share in the suit property. The suit was hotly contested by Respondent No. 10. According to her, the conditions attached to the gift are void and that the deceased-donor himself affirmed the factum of a complete gift in a registered settlement deed dated 14.8.1947. Under this settlement, the deceased-donor gifted away property to his daughters. It was then stated that one of the daughters of Syed Hussain Ahmad Shah, namely, Mst. Ghulam Fatima transferred her entire property to the Respondent No. 1 in exchange for the suit property vide exchange Mutation No. 39 attested on 15.2.1950. This exchange was never challenged by anyone. Regarding the urban property i.e. the house it was stated that the same was gifted away to Respondent No. 10 by Mst. Mumtaz Fatima by means of a registered document dated 8.4.1974. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit on 5.2.1989. A learned Additional District Judge, Multan, dismissed the first appeal filed by the petitioner on 10.4.1995.
Mian Shamsul Haq Ansari, Advocate/learned counsel for the petitioner contends that upon a bare reading of the two documents dated 6.8.1945 i.e. Exs. P. 2 and P. 3 only the usufruct was transferred. He particularly pints out that document Ex. P. 2 pertaining to the house has not at all been read and considered by learned Additional District Judge as it was specifically stated in this document that it is being given only for residence of the daughter-in-law of the donor. According to him, Hussain Ahmad Shah remained vested with the corpus of the property till his death and that the petitioner being his daughter is entitled to inherit her share therein. Mirza Manzoor Ahmad, Advocate/learned counsel for the Respondent No. 10, on the other hand, contends that vide settlement deed executed by the donor in the year 1947 i.e. Ex. D. 27 the donor affirmed that he has made a complete gift of 2/7 share in the house to the Respondent No. 1 and the same vests in her. Regarding the agricultural land, he states that the same stood exchanged with a daughter of the deceased-donor as far back as in the year 1950 and the said exchange was never questioned. He vehemently contends with reference to the case of Abdul Hameed and 23 others v. Muhammad Mohyuddin Siddique Raja and 3 others (P.L.D. 1997 SC 730) that the said conditions mentioned in the gift-deed in any case were void and the gift has to take effect.
I have gone through the copies of records with the assistance of the learned counsel for the parties. Now first I will take up the matter of the document dated 6.8.1945 pertaining to the 2/7 share in the suit house. This is
Ex. P. 2. Now I have referred to the material contends of the plaint above. No doubt in the head of the plaint under A' the agricultural land has been described with is 296 kanals 18 marlas and againstB' 2/7 share of the suit house is described. However, in the entire plaint which has been examined by me, with the assistance of the learned counsel for the parties, there is not a single word about the document Ex. P. 2. The entire allegations pertained to the gift of the agricultural land. Particulars of the document mentioned in Para 2 of the plaint are also of Ex. P. 3 which pertains to agricultural land. Now when one goes through the document Ex. D. 27 regarding which there is no dispute that it was executed by Syed Hussain Ahmad
Shah on 14.8.1947, the said omission becomes quite understandable.
Now upon a plain reading of Ex. P. 2, I have no manner of doubt in my mind that the deceased-donor has expressed that his son is to be married to the Respondent No. 1 and he wishes that she should have a property residence and that he is gifting away the property only for residence to the said lady. Now Ex. D. 27 is a registered document and is tilted as a Tamleeqnama. The parties to this document are the said Syed Hussain Ahmad Shah and the said Mst. Mumtaz Fatima Respondent No. 1. Now it appears that the deceased wanted to settle the remaining house upon his daughters by effecting a proper partition. I deem it proper to reproduce here the contents of the said document. After stating that he was the owner of the said house, the area whereof is 614.74 Sq. Yards, he declares as follows:--
After making the said declaration, he describes his three daughters including Mst. Mukhtar Fatima petitioner and two sons Syed Muhammad Hussain Shah and Syed Muhammad Kabir Shah. He then states that his daughters have been serving him and he is happy with them and out of love and affection, he wants to gift away some portions of the said property to them. He then declares that he has separated the said 2/7 share of the Respondent No. 1 and delivered it to her and the same is shown in blue colour and measures 174.17 Sq. Yards and the Respondent No. 1 has accepted the said partition and that she will have nothing to do with the remaining portion of the property. Therefore, he proceeded to point out the respective portions gifted by him to his daughters. He again reiterates that the portion left out after the partitions gifted to the three daughters and the daughter-in-law will remain vested in him.
It was this separated portion which was gifted by Respondent No. 1 in favour of Respondent No. 10 vide registered gift-deed dated 8.4.1974 (Ex. D. 38).
Having read the two documents together, and there being no attack whatsoever on any of them, and in the light of the said judgment in the case of Abdul Hameed and 23 others decided by a Bench comprising of five Hon'ble Judges of the Hon'ble Supreme Court of Pakistan, I do find that it was a complete gift and was intended to be so and was so affirmed in the document Ex. D. 27 by the deceased.
No coming to the document Ex. P. 3 which is the only document attacked in the plaint. Now this document narrates that the Nikah of the son of the donor is to be preformed on the night between 6/7-8-1945 and that he is going to gift the said land in favour of Mst. Fatima Bibi i.e. Respondent No. 1 the wife to be of his son. Thereafter, the document narrates as follows:
He has satisfied the said lady through her father that he is the complete owner of the property and it is free from any all encumbrances and upon the said representation she has accepted the gift in lieu of right of maintenance. He has also delivered possession of the land to the said lady through her father. She will have no right to alienate the property in any manner. However, she can lease out the said property. Thereafter, the document narrates that the water for irrigation of his remaining land shall pass through the land gifted and the donee shall not cause any obstruction. After the death of the donee the property shall vest in her male issues. In case there is no male issue the land shall vest in his son Syed Muhammad Hussain Shah. Thereafter, the document narrates as follows:--
Now the further history of this case is that this land was exchanged by the Respondent No. 1 with Mst. Ghulam Fatima Bibi, a daughter of the deceased (Respondent No. 2 herein) vide Mutation No. 39 Ex. P. 5. This mutation was attested on 15.2.1950 now vide exhcange deed dated 11.5.1978 (Ex.P1) it was this land which was obtained by Respondent No. 1 in exchange which was further exchanged with Mst. Nargis alias Rubab Respondent No. 8. The Respondent No. 10 filed a pre-emption suit qua this transaction which was decreed on 6.5.1984. On the basis of this decree, Mutation No. 308 Ex. D. 39 was attested in favour of Respondent No. 10 of 15.2.1987.
Now reverting back to the said document Ex. P. 3, it clearly narrates that the Respondent No. 1 is to be married to the son of the donor. He has assured her father of his valid title, that upon the said representation the declaration of gift made by him has been accepted by the Respondent No. 1 lady and that he has delivered possession and there is not manner of doubt in my mind that it was a complete gift. It will further be seen that no right including a right of reversion to the donor or his legal heirs stood reserved. In fact, he created a new stock descent neither recognized by law nor by the Islamic Injunctions. Thus, by all means the corpus of the property stood transferred to the said lady and the conditions, if any, shall be void. Even otherwise it is a matter of record that it was as far back as in the year 1950 that the said lady proceeded to transfer the said land and none of the heirs including her husband objected.
I may further note here that according to Ex. P. 3 upon the death of the donee the land was to devolve upon the male issue out of Muhammad Hussain Shah failing which the land was to vest in the said Muhammad Hussain Shah. It is being stated that there was no male issue and the only issue was Respondent No.
Now the said Muhammad Hussain Shah, admittedly, pre-deceased the Respondent No. 1. Now Ex. P. 3 does not at all cater for this situation. I have already noted above that a right of reversion unto the said donor had not been reserved. However, even if the Respondent No. 1 had died and the land had vested in Muhammad Hussain Shah, his only heir of first class (Shia Law) is the Respondent No. 10.
Having thus, examined the records, I do not find any grounds being made out for interference with the concurrent findings recorded by the learned Courts below within the ambit of Section 115 C.P.C. the civil revision accordingly is dismissed but without any orders as to costs.
(M. Ajmal Rana) Civil Revision dismissed.
PLJ 2006 Lahore 1045
Present: Syed Hamid Ali Shah, J.
UNITED BANK LIMITED--Petitioner
versus
BANKING MOHTASIB PAKISTAN and others--Respondents
W.P. 293 of 2006, decided on 16.6.2006.
(i) Constitution of Pakistan, 1973--
----Art. 199--Banking Companies Ordinance, 1962--Ss. 82-A(3) & 82-F--Respondent deposited Rs. 53,50,000/- and withdrew Rs. 13,00,000/- at one occasion--His further payment was refused on ground that as per bank record no account of the name of respondent existed except one entry in account opening register--Bank-manager & other staff mis-appropriated large sums of various customers--Respondent lodged complaint to Banking Mohtasib--Petition accepted and bank was held liable to pay the amount of claim and some amount as compensation--Validity--Deposited amount by respondent were private transaction between manager and the complainant deposit slips signed by the cashier and other official of the bank which are duly stamped, sufficiently prove the transaction as a normal banking transaction--Bank has itself admitted five out of six deposit slips--Payment of compensation to the complainants out of 145 customers, further proves that staff of the branch received involved in mal practice and fraudulent acts--Deposits made by the respondent in the ordinary cause of banking, were not accounted for in the record of the bank--Held: Petitioner was liable for the fraudulent acts of its Manager--There was no illegality or infirmity in the finding of the Banking Mohtasib in holding the petitioner vicariously liable for the fraudulent acts of the Branch Manager--Further held: Impugned order suffers from some legal defects therefore is not sustainable to that extent--Case remanded to Banking Mohtasib for re-writing the decision after curing the infirmities pointed out. [Pp. 1051 & 1052] E & G
(ii) Banking Companies Ordinance, 1962 (LVII of 1962)--
----S. 82-A(3)--Jurisdiction of Banking Mohtasib--Jurisdiction of Banking Mohtasib is not confined to the transaction between the banker and the customer--It is the transaction and not the persons, which determines the jurisdiction of Banking Mohtasib. [P. 1050] A & B
(iii) Banking Companies Ordinance, 1962 (LVII of 1962)--
----S. 82-D(3)--Proceudre to be adopted by Banking Mohtasib--Banking Mohtasib has the power to adopt any procedure as he deem appropriate for the investigation of complainant--Held: There is no bar for the Banking Ombudsman to adopt a procedure for the disposal of the complaint before him. [P. 1051] C & D
(iv) Constitution of Pakistan, 1973--
----Art. 199--Award of compensation by Banking Mohtasib--Banking Mohtasib can award compensation for the loss actually sustained and not in the form of damages--The right course available to the respondent was to leave the claim of damage/compensation to Civil Court--Held: Damaged cannot be awarded without proper determination and proof. [P. 1052] F
(v) Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Maintainability of the same despite availability of alternate remedy--Held: Connotational jurisdiction of High Court can be invoked the call in-question the impugned order, which suffers from the defect of exercise of jurisdiction in excess and complete obligation of the principle of Natural Justice. [P. 1053] H
PLD 2002 SC 452 and 2001 SCMR 209.
Mr. Imran Aziz Khan, Advocate for Petitioner.
Mr. Atta-ur-Rehman Sheikh, Advocate for Respondent No. 2.
Date of hearing: 15.3.2006.
Order
Concise facts of the case, necessary for the disposal of this writ petition are that Respondent No. 2 lodged a complaint under Chapter VI-A of the Banking Companies Ordinance, 1962, before Respondent No. 1. Respondent No. 2 asserted in his complaint that he maintains account with UBL Lohari Gate Branch, where he deposited Rs. 6,00,000/- (rupees six lac only) in cash against deposit receipt signed by an officer of bank, duty stamped as "cash received". Concerned officials of the branch undertook to issue cheque book, after its receipt from the Head Office. Thereafter various amounts were deposited at different intervals against cash receipts i.e. Rs. 10,00,000/- (rupees ten lacs only) on 23.11.2004, Rs. 2,50,000/- (rupees two lac fifty thousand only) on 29.11.2004, Rs. 8,00,000/- (rupees eight lacs only) on 8.12.2004, Rs. 12,00,000/- (rupees twelve lacs only) on 15.12.2004 and Rs. 15,00,000/- (rupees fifteen lacs only) on 31.12.2004. A total sum of Rs. 53,50,000/- (rupees fifty three lacs fifty thousand only) was deposited. No cheque book was issued despite demand by Respondent No. 2, who on 4.1.2005 withdrew a sum of Rs. 13,00,000/- (rupees thirteen lacs only) through cash voucher. During this period the branch staff was transferred and Respondent No. 2, when requested for withdrawal of his amount, he was informed that as per bank record on account in the name of Respondent No. 2 existed, except an entry in the Account Opening Register dated 4.1.2005. Respondent No. 2 then came to know that the branch manager with certain other staff has misappropriated large sums of the various customers of branch and investigation in this respect is being conducted by NAB. The victims of fraud will be paid after due scrutiny. Bank settled the claims of various account holders but the claim of Respondent No. 2, remained unsettled which gave him a cause to approach Respondent No. 1 for redressal of his grievance. Petitioner contested the matter/complaint before Respondent No. 1 submitted reply and controverted the assertion made in the complaint. Respondent No. 1, after hearing both the parties, decided the matter vide decision dated 8.12.2005, whereby it was held that bank/petitioner is liable to pay the amount of claim i.e. Rs. 40,50,000/- (rupees forty lacs fifty thousand only) besides Rs. 2,85,000/- (rupees two lacs eighty five thousand) towards compensation. Decision dated 8.12.2005, is now assailed in this petition.
Learned counsel for the petitioner has submitted that relationship inter se the petitioner and Respondent No. 2 is not that one of the banker and customer. The complaint pertains to the period prior to the opening of account. No account was opened on 27.11.2004 as alleged. Basic documents relating to account i.e. account opening form, specimen signatures, statement of account and cheque books are not in the branch record. Learned counsel in order to establish the bona fide has submitted that out of 145 complaints, the payment has been made to 140 complainants. It was found on scrutiny that Respondent No. 2 opening account on 4.1.2005 and no payment was received by the bank. Manager inserted name of Respondent No. 2 through an anate dated entry in "Account Opened and Closed Register", after the probe in the affairs of the Branch by the raiding party. Respondent No. 2 has been paying amounts to the manager of the branch in his personal capacity, outside the premises of branch. Petitioner is not liable for the acts of its branch manager vicariously, as these acts were not in the course of employment. Respondent No. 2 has never visited branch of the bank, which fact finds support from affidavits of the officers of branch. Deposits, statedly made by the Respondent No. 2 to the manager of the branch, were not normal banking transactions. Branch manager had no authority to receive cash of customer. Normal and usual course is to deposit amounts at cash counter in usual banking hours. Impugned transactions are without ostensible authority of the employer, do not make the employer vicariously liable. Learned counsel in this respect found support from the cases of "Kooragang Investment Pvt. Ltd. versus Richardson and Wrench Ltd" (1981) 3 W.L.R. 493], "Armagas Ltd. versus Mundogas S.A. (H.L.(E))" [(1986) 2 WLR 1063], "The King versus City of Westminister Assessment Committee" [(1941) 1 KB 53]. It was then submitted that the question of vicarious liability of the petitioner cannot be determined summarily. Proper trial through recording the evidence is needed to ascertain, whether or not the deposit were made in usual banking hours and within the premises of the branch. Case of "State Bank of India versus Smt Shyama Devi" (1990-1991 Banking Law Cases (Volume-I) page 349) was referred in support of this contention.
Learned counsel while challenging the jurisdiction of Respondent No. 1 has submitted that jurisdiction of Banking Mohtasib is restricted to: banking mal practices; perverse, arbitrary or discriminatory actions; violations of banking laws, rules and regulations or inordinate delay or inefficiency and corruption; nepotism or other forms of mal-administration of transaction as envisaged in Section 82-A of the Banking Companies Ordinance, 1962. Learned counsel added that fixing of vicarious liability without proper determination thereof is violative of law. Fixing vicarious liability on employer falls outside the ambit and the powers of Respondent No. 1. Impugned transaction was private dealing of two individuals, for which question of vicarious liability does not arise. Learned counsel then submitted that Banking Mohtasib has no such powers as are vested in Wafaqi Mohtasib (Ombudsman) Order, 1983. Baking Mohtasib can call for information, as provided in Section 82(F) of Ordinance, 1962. No specific power of proper trial and recording of evidence vests with Respondent No. 1 who has exercised his jurisdiction in excess, by adopting the procedure of recording the statements etc. Learned counsel has submitted that it is evident from impugned order that after the conclusion of proceedings, the Respondent No. 1, inquired on phone from Mr. Qasim Irfan Manager of Riwaz Garden Branch, about the missing record of the account of Respondent No. 2. This inquiry was made behind the back of the petitioner, the bank was not allowed to controvert false information supplied by Mr. Qasim Irfan, Cases of "Muhammad Jamil Asghar versus The Improvement Trust Rawalpindi" (PLD 1965 SC 698). "Abdus Saboor Khan versus Karachi University and another" (PLD 1966 SC 536), "Mehr Dad versus Settlement and Rehabilitation Commissioner and another" (PLD 1974 SC 193) and "Chief Commissioner Karachi and another versus Dina Sohrab Katrak" (PLD 1959 SC 45) were referred to contend that the impugned decision in nullity and violative of principles of natural justice. It was contended that Respondent No. 1 has not applied its conscious mind to the controversy before him. The claim regarding deposit dated 31.12.2005 was entertained, which is subsequent to the lodging of complaint. There is no sense or justification in depositing further amount, in the account in the same manner, without proper verification. Learned counsel submitted that this fact alone proves the falsehood of the claim of the Respondent No. 2. To meet the objection of respondent, about the maintainability of the petition, in presence of remedy of appeal, learned counsel submitted that the matter regarding fraud in the bank was already pending before State Bank. The appeal thus hardly remains a remedy. Case of "Muhammad Abdullah versus The Road Transport Corporation and others" (PLD 1964 Lahore 743) was referred wherein it was held that where inquiry officer gives his finding in the inquiry, he is debarred to sit as one of the members of the tribunal to consider the case of the employee. He added that applying the same principle to the instant case, State Bank of Pakistan having ceased of inquiry regarding affairs of bank and its staff, cannot entertain the appeal of the petitioner.
Learned counsel for the respondent, on the other hand, has fully supported the impugned order of the Banking Mohtasib. He has emphasized that the remedy of appeal under Section 82E(4) of the Ordinance, 1962 against the order of Mohtasib was available to the petitioner, which the petitioner has not availed within stipulated period of 30-days, therefore, the writ is not competent. Learned counsel in support of this contentions has referred to the case of "Allah Bakhsh and another versus Muhammad Ismail and others" (1987 SCMR 810). He has referred to the cases of "Collector of Customs, Lahore etc. versus Universal Gateway Trading Corporation and another" (2005 SCMR 37), "Farzan Raza Naqvi etc. versus Muhammad Din etc." (2004 SCMR 400), "Naeem Jafar versus Senior Superintendent of Police and 2 others" (1997 MLD 1198), "Aslam Hassan Qureshi versus Government, State Bank of Pakistan and 4 others" (2004 CLD 1407), "Sui Southern Gas Company Ltd. and another versus Khawaja Muhammad Munir and another" (2000 SCMR 702), "Abdur Rehman versus Haji Mir Ahmad Khan and another" PLD 1983 SC 21) and "Anjuman Arhtian (Regd.) Khanpur versus Province of Punjab" (PLD 1990 Lahore 32) in support of his contention that writ of the petitioner is barred by doctrine of alternate remedy. Learned counsel has then submitted that a forum which has the jurisdiction to pass an order, it can pass an order rightly or wrongly. Mere wrong of erroneous order cannot be challenged in Constitutional jurisdiction. He in support of this contention has referred to the cases of "General Manager PC Hotel versus Farhat Iqbal" (PLD 2003 SC 952), "Muhammad Samiullah Khan versus Addl. District Judge, Sargodha" (PLD 2002 Lahore 56) and "Federal Land Commission versus Mst. Gul Bibi and others" (1983 SCMR 818). Case of "Syed Akhtar Hussain Zaidi versus Muhammad Yaqinuddin" (1988 SCMR 753) to contend that the documentary evidence cannot be rebutted through oral evidence; the former has precedence over the latter. Respondent has placed before the Banking Ombudsman deposit slips and to rebut the same petitioner had adduced oral evidence. It was contended that questions raised, in the writ petition are questions of fact; factual controversy cannot be gone into in the writ jurisdiction. Learned counsel supported this contention by referring to the cases of "Khairuddin and others versus Settlement Commissioner and others" (1988 SCMR 988) and "Allied Bank of Pakistan Ltd. versus Ejaz Ahmad Abbasi and another" (1990 SCMR 1713). While referring to pages 1320, 1321, 1329 to 1333 of Banking Law Theory and Practice by Gupta, it was contended that petitioner is vicariously liable for the acts of its Manager. Learned counsel has submitted that the complained act of Respondent No. 2, pertained to the mal practice and violation of banking laws, therefore, the learned Banking Mohtasib had the jurisdiction to entertain the complaint of the respondent within the contemplation of Section 82-A(3) of the Ordinance, 1962. Learned counsel has controverted the assertions of the petitioner that the receipts are signed by Manager and the transaction was between Respondent No. 2 and the Manager of the Bank in their personal capacity. It was submitted that the deposit slips contained the signatures of the Cashier and other officials. He has emphasized that the deposit slips duly stamped by the bank, received by the bank in its premises, cannot be termed as the acts of the Manager in his personal capacity. He stressed that the Manager acted on behalf of the bank and the complained act was not in the personal capacity. 140 customers of the bank who were victim of fraud of the branch manager have been compensated. There is no justification that Respondent No. 2, who was placed in identical situation, was not accommodated. It was argued that the affidavits, which the petitioner has filed with this writ petition, were not submitted before Banking Mohtasib. The affidavits at this belated cannot be considered.
Heard learned counsel for the parties and examined the record.
Learned counsel for the petitioner has stressed that the amounts received by the Manager in his personal capacity, cannot be taken as a transaction by the Manager in the course of his duty. It was private arrangement between the parties. The complaint of Respondent No. 2 relates to a period when the account of Respondent No. 2 was not opened, therefore, the matter falls outside the jurisdiction of the Banking Mohtasib. The arguments have no force as the jurisdiction of Banking Mohtasib is not confined to the transactions between the Banker and the customer. According to provisions of Section 82-A(3) the jurisdiction of Banking Mohtasib relates to the "Banking Transactions", where inquiry pertains to Banking mal-practice, perverse or discriminatory actions, violation of banking law, rules and guidelines, corruption, nepotism or other forms of mal-administration. It is the transaction and not the persons, which determines the jurisdiction of Banking Mohtasib. Receiving cash during the banking hours within the banking premises against the issuance of deposit slips, without opening the account of the customer, is the act of mal-administration and banking mal-practice. Banking Mohtasib has rightly entertained the complaint of Respondent No. 2.
Petitioner has taken exception to the procedure which the Respondent No. 1 has adopted while entraining the complaint of Respondent No. 2. The Banking Mohtasib has the power to adopt any procedure as he deems appropriate for the investigation of a complaint. Section 82-D(3) in this respect is relevant, which reads as under:--
"82-D Procedure for making complaints....(1)....
(2) ........I
(3) The Banking Mohtasib may adopt any procedure as he considers appropriate for investigating a complaint:
Provided that he shall not pass any order against a bank without first giving it a notice and an opportunity of hearing".
It is clear from the above provision of law that there is no bar for the Banking Ombudsman to adopt a procedure for the disposal of the complaint before him. I do not, therefore, agree with contention of the learned counsel of the petitioner that Banking Mohtasib, according to provisions of Section 82-F of the Ordinance, 1962 can only call for information and the relevant documents but is not vested with authority to record evidence or statements of the parties.
There is nothing on record to show that deposits by Respondent No. 2, are private transactions between the Manager and the complainant. Deposit slips signed by the Cashier and another Official of the bank which are duly stamped, sufficiently prove the transaction as a normal banking transaction. Further the bank has itself admitted five out of six deposit slips. Payment of compensation to 140 complainants out of 145 customers, further proves that staff of the branch remained involved in mal-practice and fraudulent acts. Deposits made by the complainant/Respondent No. 2, in the ordinary course of banking, were not accounted for in the record of the bank. Petitioner is, therefore, liable for the fraudulent acts of its Manager namely Khursheed Butt. There is no illegality or infirmity in the finding of the Banking Mohtasib in holding the petitioner vicariously liable for the fraudulent acts of the Branch Manager.
It is reflected from the impugned order that learned Banking Mohtasib has called information from Mr. Qaiser Irfan, an Officer of the Bank, on telephone who appraised Respondent No. 1 that account opening form was taken away by the Branch Manager who kept the same at his home. Learned Mohtasib gave due weightage to his statement. The information was sought from Mr. Qaiser Irfan after the proceedings were concluded. Learned Mohtasib in this exercise, has ignored the principles of Natural Justice. It was incumbent upon the Mohtasib to inform and provide the petitioner an opportunity to cross-examine Mr. Qaiser Irfan before drawing inferences against the petitioner on the basis of his statement. The petitioner had the right to controvert the statement of Mr. Qaiser Irfan through its evidence, which was not provided.
Another lacuna apparent in the impugned order, is granting the Respondent No. 2 a sum of Rs. 15,00,000/- which as per deposit slips is shown to have been deposited on 31.12.2005. It is reflected from the legal notice of Respondent No. 2 that this sum was deposited on 31.1.2005, however, Respondent No. 2 changed its stance and subsequently wrote to the petitioner that this amount was deposited on 31.12.2004. It is evident from the deposit receipt that it pertains to the year 2005 and not 2004. The petitioner has denied the veracity of this deposit slip. There was no admission by the bank to this effect. The award of an amount, without any proof thereof, is not legally tenable.
The compensation was also granted to Respondent No. 2 without any proof, as to the damages suffered, by the Respondent No. 2. The Banking Mohtasib can award compensation for the loss actually sustained and not in the form of damages. The right course available to the Respondent No. 1 was to leave the claim of damages/compensation to Civil Court. Damages cannot be awarded without proper determination and proof. The impugned order to this extent is without lawful authority.
The impugned order suffers from the legal defects mentioned in Paragraphs 9 to 11, therefore, is not sustainable to that extent. The case is sent back to learned Banking Mohtasib for re-writing the decision after curing the infirmities pointed out in Paragraphs 9 to 11 (supra).
Before parting with this order, I would like to treat the question of maintainability of Constitutional petition despite availability of alternate remedy. The question has already been settled by the Hon'ble Supreme Court of Pakistan in the case of "Town Committee Gakhar Mandi versus Authority under the Payment of Wages Act, Gujranwala and 57 others" (PLD 2002 SC 452). Relevant part of the judgment is reproduced as under:--
"It is true that as a general rule a person would not be permitted to invoke the extraordinary Constitutional jurisdiction of a High Court under Article 199 of the Constitution if an adequate remedy was available to him to seek redress of his grievance. But then this is also equally true that such was held, more than once, that a writ of certiorari for instance, could be granted, despite availability of an alternate remedy, where for example, the impugned order was ex facie without lawful authority or where it was a case of lack or absence of or even excess of jurisdiction. Reference may be made to the cases of S.A. Haroon versus The Collector of Customs (PLD 1959 SC (Pak) 177); "Pakistan versus Zia-ud-Din" PLD 1960 SC 440); Lt. Col. Nawabzada Muhammad Amir Khan versus The Collector of Estate Duty and others (PLD 1961 SC 119) Nagina Silk Mills versus The Income Tax Officer and others (PLD 1963 SC 322) Premier Cloth Mills Ltd. versus The States Tax Officer (1972 SCMR 257) and Murree Brewery Co. Ltd versus Pakistan (PLD 1972 SC 279).
It was held by the Apex Court in the case of "Government of Pakistan and another versus Hudabia Textiles Mills, Faisalabad" (2001 SCMR 209) that in cases where it was argued that there was lack of jurisdiction or where the impugned orders suffer from illegality on the face of record, a writ may be issued even though the right of statutory appeal has not been availed. I am persuaded by the dictum of law laid down by the apex Court in the cases, to hold that Constitutional jurisdiction of this Court can be invoked to call in question the impugned order, which suffers from the defect of exercise of jurisdiction in excess and in complete obliviation of the principle of Natural Justice.
(M. Ajmal Rana) Order accordingly.
PLJ 2006 Lahore 1053
Present: Mian Saqib Nisar, J.
EMPLOYEES & LABOUR UNION ITTEHAD CHEMICALS LTD., SHEIKHUPURA through its GENERAL SECRETARY--Appellant
versus
REGISTERED TRADE UNION SHEIKHUPURA & 5 others--Respondents
Labour Appeal No. 406 of 2004, heard on 1.2.2006.
(i) Constitution of Pakistan, 1973--
----Art. 199--Industrial Relations Ordinance, (XCI of 2002), S. 48(3)--Labour Laws--Expediency which necessitated promulgation of labour laws--Historical backdrop of relationship of the "employer" and "employee" given in detail. [P. 1059] A
(ii) Industrial Relations Ordinance, 2002 (XCI of 2002)--
----Ss. 2(x) (xi) (xxx), 3 & 48(3)--Constitution of Pakistan, 1973, Art. 199--Respondent after its registration applied to the Registrar Trade Union, for holding referendum for the determination of CBA--Objection filed by appellant accepted and petition was dismissed but another application filed after promulgation of I.R.O. 2002 on the subject was accepted, so as to have a right of vote in referendum--Assailed--Petition dismissed confirming order of Registrar holding that the total number of the employees of the Company was only 72 workers--Challenged to--Validity--The definition of the `employer' in the present matter, would be quite in appropriate and a narrow approach towards the issue--The workers/workman have been engaged to work in the establishment, would not be relevant, rather what important--Even if the employment is through the contractor, it is the establishment in which the worker was performing his duties, the primary and the principal employer of the worker--It was not denied by company, that the workers, regarding whom the forums below have given the decision, are not working for it--Held: Exercise of their right u/S. 3, such workers would and were the workers of the company and the impugned orders declared illegal and unlawful--Appeal allowed. [Pp. 1060 & 1062] B, D & E
1974 SCMR 269; 1985 SCMR 257; 1987 SCMR 1463; 1978 LLJ 397; 1993 PLC 937; 1996 PLC 45; 2004 PLC 348 and SBLR 2005 Sindh 1121.
(iii) Industrial Relations Ordinance, 2002 (XCI of 2002)--
----Ss. 2(xi), (xxx) & 3--Trade Union--Formation of--Trade Union has to be formed vis-a-vis the establishment where the worker is employed and not against the employer. [P. 1061] C
Mr. Abid Hassan Minto, Advocate for Appellant.
Mr. Javed Altaf and Mr. M.A. Hameed Awan, Advocates for Respondents.
Date of hearing : 1.2.2006.
Judgment
Through this appeal, the order dated 30.9.2004, passed by the Labour Court No. 3, Lahore, has been assailed, by virtue whereof, the appellant's petition, challenging the order of Respondent No. 1 dated 2.12.2002, was dismissed.
Briefly, the facts of the case, as stated in the petition are, that M/s Ittehad Chemicals Limited (the Company) is a manufacturing concern with the current strength of 500 workers and is running round the clock with three shifts. The appellant is a registered Union since 1995 and till the date of the impugned action, was the CBA of the workers of the Company, whereas Respondent No. 2 is the Trade Union created in 2002 and on account of the order of Respondent No. 2, impugned in this appeal, has been declared to be the CBA of the workers of the Company. In Paragraph No. 4 of the petition, it is averred that the Company, which previously was a public concern, was privatized and thereafter, had adopted, what may be termed as "Contract Labour System", the method through which, the labour force is hired from the market through the Contractor and compensation/wages are paid to the Contractor, who makes the same over to the labour/workers after deducting commission. In this manner, the Contractor, according to the appellant, assumes the character of quasi-employer (middleman), as he supplies the labour force, but in fact and reality, the real Employer of the labour remains the Company, which after hiring the labour actually employs the services of the workmen at its manufacturing unit for the purpose of his undertaking and calling. It is alleged in the petition that the appellant in the capacity as CBA tried to prevail upon the Company that the contract labour working at the factory be given the status of permanent employees after completion of statutory period of employment. This roused the Company to get registered Respondent No. 2 in April, 2002; this tactic was used as a time honored ploy in order to divide the labour and the roost. In the said scenario, the appellant served a demand notice on the Company in July, 2002 requiring the Employer to make permanent 400 workers of the Company, but in vain.
Whereas, Respondent No. 2 soon after its registration, applied to the Registrar Trade Union, Respondent No. 1, for holding a referendum in the establishment for determining a Collective Bargaining Agent. The new Union, Respondent No. 2, also took steps before the National Industrial Relations Commission (NIRC) to obtain a stay of proceedings relating to the demand notice aforesaid. However, on the application for the determination of the CBA, some proceedings were taken by the Registrar during which, the appellant raised the objection to the effect that the total number of the workers employed in the establishment was more than 500 out of which, 477 were the members of the appellant union, while the rival union claimed the membership of 52 workers. The rival union, Respondent No. 2, and the management of the Company (Respondent No. 3) maintained that only 72 workers were employed in the establishment, while all others were hired through a Contractor. The Registrar, after inquiry, upheld the objection of the appellant and consequently, Respondent No. 2's application claiming referendum was rejected, as it did not have the requisite 1/3rd of the total workers as its members. But within less than two months, another application was made by Respondent No. 2, seeking the referendum, whereupon the Registrar, Respondent No. 1, initiated the proceedings for holding a referendum under the I.R.O 2002 (promulgated after repeal of IRO 1969), which had been enforced in the meantime, and asked the appellant to furnish the list of its members. The appellant, according to the petition, submitted a list of 447 workers, who were its members. The management of the Company filed a list of 71 workers claiming that only those mentioned in the list were in its employment. On 2.12.2002, Respondent No. 1 ex-parte accepted the management's list of 71 workers and contrary to his earlier order dated 23.9.2002 held that only those 71 workers were entitled to vote in the referendum. Consequently, the Registrar accepted the application of Respondent No. 2 and fixed 10.12.2002 as the date for the referendum, holding that the workers employed through the Contractor could not be deemed to be the employees of the establishment, so as to acquire a right to vote in the referendum. Regarding his earlier order, it was held that the same was passed under the I.R.O. 1969, a different law, and in different circumstances. It to be more precise, the following portion of the order dated 2.12.2002 passed by the Registrar of the Trade Unions, shall make the point clear:--
"In view of the facts brought on record by all the three parties I am fortified to hold that previous order of the undersigned mentioned above has no bearing on the present proceedings particularly when I.R.O. 1969 stands repealed. It is also established fact that prior to the registration of applicant union, it was part of Employees and Labour Union and election of same were held with a membership not exceeding 70. I would like to add that in I.R.O. 2002 the scope of definition of employer as given in Section 2(x) has been widen by placing Contractor under this provision as per Section 2(x)(f). This provision lacked in repealed I.R.O. 1969. Now under the altered statutory provision a trade union can either be registered with the factory management or contractor supplying labour which has been held a separate establishment in case of circumstances stated above."
In the above situation, the appellant called in question the order dated 2.12.2002 of the Registration before the Labour Court by filing an application under Section 33 of the IRO. According to the appellant's case, as the stay order was not granted by the Court, resultantly, the appellant boycotted the referendum and in this manner, Respondent No. 2 was declared successful in the polls, which took place on 10.12.2002. On 11.12.2002, a certificate of CBA was issued to Respondent No. 2. The appellant made another application for the suspension of the CBA Certificate, but without any success.
The learned Labour Court proceeded to fix the case for the evidence of the parties when Respondent No. 3, the Managing Director, Ittehad Chemicals, filed an application for the rejection of the petitioner under Order 7 Rule 11 CPC. The Labour Court, however, held that the case would not be rejected under the aforesaid provisions, but as the CBA Certificate has been issued to Respondent No. 2, who has taken over the charge of the office, therefore, the main petition was discarded as having become infructuous, vide order dated 11.10.2003. It was also held that the appellant had not amended the petition to meet the changed circumstances, and therefore, the same was liable to be rejected as infructuous.
The appellant challenged the above order dated 11.10.2003 through W.P. No. 16434 of 2003 before this Court and the order impugned therein was set aside by the Court with the direction to the Labour Court to decide the matter on merits. Again, the Labour Court No. 3, Lahore, has confirmed the order of Respondent No. 1 dated 2.12.2002 through the impugned order in this appeal dated 30.9.2004 holding that the total number of the employees of the Company is only 72. The learned Labour Court has concurrent with the view of the Registrar Trade Unions by concluding:--
"He argued that in the instant case the workers who are performing their duties in the mills are workers employed by the contractors who have been assigned various jobs and not through the contractors and in view of above referred proposition of law they are workers of their respective employers. Therefore, the argument of the learned counsel for the petitioner is without any substance. It will be worth mentioning that this category of employers did not exist in I.R.O. 1969. The Registrar of Trade Unions while recording his impugned order dated 2.12.2002 based his findings on the widened scope of definition of employers as prescribed in I.R.O. 2002."
Learned counsel for the appellant has argued that the change in the definition of the "employer" by virtue of I.R.O. 2002 has no effect upon the matter because there has been no change in the other definitions such as the "worker/workman", the "establishment" and, therefore, when it is proved that the workers employed by the contractor in fact are performing their duties in connection and concerning the calling and objects of the establishment, the company, within its precinct, thus, despite the fact that they have been recruited through a contractor, shall make no difference to their status of being the workmen and thus, shall be entitled to form a the trade union under Section 3 of the I.R.O. 2002 vis-a-vis that "establishment" where they are physically rendering their services.
Heard. The question, whether under the Labour Laws, the workmen whose services are procured by or through a Contractor, are the employees of the Contractor or that of the Principal, who employs the Contractor for that purpose, has arisen before the Courts in different circumstances from time to time; the Courts have determined this issue in each case on the facts of that case and the particular labour legislation applicable. The following three judgments from the Honourable Supreme Court of Pakistan and one from the Supreme Court of India can be referred to in this behalf:--
The Punjab Religious Book Society vs. Mst. Amanat (1974 SCMR 269);
Mian Munir Ahmad vs. The State (1985 SCMR 257);
Farid Ahmad vs. Pakistan Burmah Shell (1987 SCMR 1463), and
Hussain Bhai Calient vs. Alakh Factory (1978 LLJ 397).
The ratio of all these judgments is that--
(i) the relationship between the Employer and workmen is not merely a matter of contract alone, the other circumstances alongwith the rights arising out of legal and constitutional provisions must be kept in view;
(ii) the contract may only be a veil which can be lifted to determine the true relationship;
(iii) in Pakistan the defining provisions of I.R.Os, particularly those which explain "Establishment", "Employer" and "Workman" play crucial role in interpreting the facts of each case.
Thus, keeping in view the above pronouncements, the High Courts of the country and the N.I.R.C, have laid down the principles about this relationship and in the case reported as General Secretary Pak Saudi Fertilizer vs. Pak Saudi Fertilizer (1993 PLC 937), a Full Bench Judgment of the NIRC, it has been found that the contract labour was in fact employed by the Principal through a Contractor. Likewise, in M/s Euro Ceramics Ltd. vs. Registrar of T.U (1996 PLC 45), the Balochistan High Court, while considering the definition of "Workman" in terms of IRO, 1969, had held "The definition quoted above visualizes that a worker or workman even if he has been engaged by the employer through a contractor, would be deemed to be a worker in the Establishment, provided the nature of his job is to remain engaged in the affairs of the establishment, however, if the worker has been engaged by a contractor for undertaking the work other than the job being carried out in the establishment, he would not be deemed worker of the establishment." In another case, Seagull Exports vs. Sindh Labour Appellate Tribunal (2002 PLC 212), the Karachi High Court examine the noted case law and the provisions of the IRO and held on the basis of un-rebutted evidence, that the workers in that case were engaged, paid, controlled and managed by the Contractor and the Principal had no control over them at all; the contractor was thus, held to be the employer. Another case reported as M/s Dawood Cotton Mills vs. Sindh Labour Appellate Tribunal (2004 PLC 348), was a matter where the provisions of the IRO 1969 and the Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 were applicable and were interpreted to hold that the contract labour was in the employment of the principal as the work performed was for and the general control was by the Principal. In Fauji Fertilizer Company vs. Sindh Labour Appellant Tribunal (SBLR 2005 Sindh 1121), it was held that the workers engaged through or by a Contractor to perform the duties for the Establishment of the Principal under his supervision, were the workers of the Principal.
From the above case law, it is abundantly clear that under the I.R.O. 1969, notwithstanding that the workers had been employed through the medium of a contractor, ye to cater different situations, and in order to determine and enforce the rights and obligations inter se the "employer" and the worker/workman, under various Labour Law, they have been considered to be the employees of that establishment, where they were physically rendering their services for achieving the objects and the purposes of that establishment and not of the contractor through whom they have been employed.
In view of the above and while considering the facts and circumstances of this case, the question, therefore, which arises for the determination is; whether after the enforcement of the I.R.O. 2002, which mainly has brought a change in the definition of the term "employer" whereby the "contractor" has also been included in that category, thus the workmen/workers, who though are working in an "establishment", but as their services are procured through the medium of the contractor, resultantly such labour shall have no concern with the "establishment" for which they are rendering their services, rather shall be the employees of the contractor alone?
Before dilating upon the above proposition, it shall be relevant to briefly state the expediency, which has necessitated the promulgation of various Labour Laws, because this in my view, may be, to an extent, but this shall definitely be helpful in resolving the issue, while interpreting the relevant provisions of law. The historical backdrop of the relationship and interaction of the "employer" and an "employee" indicates that they have never enjoyed the equal status and the position. The employer has always been on a higher pedestal, reflecting an "unequal bargaining" position of the parties, such as, the employer had the pregative of hiring and firing his employees according to his own need, choice and the desire. The terms and conditions of "employment" usually were cut to suit the interest of the employer; this roused a cause of concern, a sense of deprivation, anguish, dissatisfaction amongst the labour class, who were of the strong impression, that it is they who on account of the dint of their physical and skillful hard work, are instrumental in enabling their employer to achieve his financial and business goals. But unfortunately, they are not meted with the rewards to which they deserve. In the circumstances, even before any statute was enforced, regulating the relationship of the employer and the employee or permitted the formation of the trade unions, in the international context, such unions in reality existed and were endeavoring for the better rights of the labour class. The trade unions, therefore, when viewed in the above perspective, should always be understood and examined as a part of a wider concept i.e. the labour struggle and the movement as a whole; the movement which is a combined and a united action of the workers community to seek and secure favourable conditions for the labour, such as to the wages, hours of a labour, safety measures at the job sites, pensionery benefits, holidays, insurance, job security etc. etc. It is in pursuance of the labour movement and in recognition of their rights at the political, social and economic levels of the state, which compelled the legislature to take measures for the purposes of the regulation and the protection of the rights and obligations of the employer and the workers.
In Pakistan as well, with the same object in view and in order to deter the whimsical and capricious actions of one class against the other and for the settlement and resolution of their disputes, inter alia, the Industrial Relations Ordinance, 1969 was enforced. In this law, one of the significant and conspicuous rights conferred upon the two classes is, the legal sanction provided by Section 3 thereof, making lawful formation of the "trade union" and the "employer association". Moreover, upon the enforcement of the Constitution of the Islamic Republic of Pakistan, 1973, which contains Article 17, the formation of an association has attained the status of a fundamental right, which is a most sacred and valuable right, conceivably available to a citizen; this article has been specifically referred to in Section 3 of the I.R.O 2002, and I have no doubt in my mind that the section ibid. is primarily structured on the foundation of the Article.
Therefore, the right to form a trade union by the workers of an "establishment" is a right of its own nature, which altogether has different dimensions and amplitudes; embedding therein, the continuity of the workers struggle in a united manner for seeking better working conditions for the labour class, obviously from that "establishment", where they are physically employed to render services for the purposes of achieving and carrying on the business of the said establishment. This right, in its concept signifies the objective of its own special kind and the status, and by no rule of interpretation or the application it can be equated with the ordinary right of a workman about his salary/dues, leave, dismissal etc; which the individual workman may enforce according to the nature of his personal grievance against any of the persons, fictionally included in the definition of "employer" as contained in Section 2 (x) of the IRO, 2002, However, for the purposes of effective exercise of the right of a worker under Section 3 ibid., the definition of the "employer" has no such significance, rather the terms "establishment" and "worker/workman", as defined in law, are germane for the true interpretation of the said provision.
Thus, while considering the present case in the context of the above, and in order to answer the question posed in the preceding Paragraph No. 7, I am of the firm view that in apply the definition of the "employer" in the present matter, shall be quite inappropriate and a narrow approach towards the issue. Because, the above definition, by fiction of law, includes within the category of the "employer" even such person who otherwise does not quality to be so in the ordinary parlance. This is for the reason, that the legislature in its wisdom has provided a comprehensive definition, with a clear object to meet different situations and to resolve carious issues and dispute which may arise between an individual worker on the hand, and its employer, on the other.
Whereas, the issue in hand is covered and governed by Section 3 of the Ordinance, 2002 read with Section 2(xi) and (xxx), which, for the facility of the reference, are reproduced below:--
"Trade unions and freedom of association:--
(1) Subject to the provisions of Article 17 of the Constitution of Islamic Republic of Pakistan, this Ordinance and any other law for the time being in force:--
(a) the workers shall, without distinction whatsoever, have the right to form and subject to the constitution or rules of a trade union, join any trade union of their choice within the establishment or industry they are employed in."
In this section, which is somewhat different from Section 3 of the IRO, 1969, the most important and fundamental aspect and feature is, that the worker has a right to form and join a trade union of his own choice within the "establishment" or the industry where he is employed. The term of "establishment" in Section 2 (xi) of the IRO, 2002, has been defined to mean "any office, firm, factory, society, undertaking, company shop, premises or enterprise which employs workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches----------------------------------------------------------------." And the "worker/workman" means "any all persons not falling within the definition of employer who is employed in an establishment or industry for remuneration or reward either directly or through a contractor, whether terms of employment be express or implied, -----------------------------------------." Thus, from the collective reading and interpretation of these provisions, it is clear that the trade union has to be formed vis-a-vis the establishment where the worker is employed and not against the "employer". The expressions "employ" "employed" therein undoubtedly shall mean, the physical engagement of a worker in an "establishment" where he renders his services for the purposes of achieving the objects and for carrying on the business of that "establishment", may be he has been recruited there, either directly or through the medium of the contractor; the fact as to how the workers/workmen have been engaged to work in the establishment, shall not be relevant, rather what important is, where is he employed to work. Even if the employment is through the contractor, it is the "establishment" in which the worker is performing his duties, the primary and the principal employer of the worker. It is not denied by the Ittehad Chemical Ltd. the company, that the workers, regarding whom the forums below have given the decision, are not working for it. Therefore, I have no hesitation to hold that for the exercise of their right under Section 3 ibid, such worker shall and are the workers of the company and the impugned orders declaring them otherwise are illegal and unlawful.
(M. Ajmal Rana) Appeal allowed.
PLJ 2006 Lahore 1062
Present: Syed Hamid Ali Shah, J.
Mst. LATIFAN BIBI and others--Appellants
versus
MUHAMMAD BASHIR and others--Respondents
R.S.A. 92 of 1989, heard on 19.4.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 100--Qanun-e-Shahadat Order, (10 of 1984), Art. 46--Evidence Act, 1913 S. 32--Suit for possession filed by collaterals basing their claim on Sunni law as deceased was issuless--Dismissed by trial Court--Finding reversed by First Appellate Court was upheld by Hon'ble High Court an second appeal--Hon'ble Supreme Court set aside the order of High Court--Remand matter to determine whether documents were proved and further deceased was having Shia faith or not in view of evidence produced--Determination by Hon'ble High Court--Oral evidence adduced by the plaintiffs did not prove that deceased was Sunni and not Shia--Deceased was Sunni and not Shia--From the appraisal of evidence of the parties, assertions made in plaint and from the statement of Mst. R before the revenue authorities--Held: Documents have been duly proved--Exh-documents were executed and sworn by deceased, much before the controversy between the parties--The statements made in Exh. were covered by Art. 46 of the Order, 1984 Item Nos. 5 & 6 and statement in these documents coupled with the statement of Mst. R at the time of attestation of mutation, prove sufficiently that I.B. was Shia and followed Shia school of faith in his life time--Appeal accepted. [Pp. 1068, 1069, 1070 & 1071] D, E, G, I & J.
PLD 1954 Lah. 480; AIR 1915 Madras 217; AIR 1938 Oudh 26; AIR (38) 1951 Pepsu 82; AIR 1950 Madras 486, ref..
(ii) Janaza--
----Determination of faith of a person--Janaza prayer as determining factor--Held: Janaza prayer is no determining factor of one's behalf, being an act done after the death of a person and without his permission. [P. 1067] A
PLD 2000 SC (AJK) 25; PLD 1985 Kar. 365; 1983 CLC 2559; AIR 1933 Lah. 80, rel.
(iii) Obiter Dictum--
----A person knows about his faith more than the others, no matter, how close are others, with that person. [P. 1070] H
(iv) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----S. 46--Determination of faith--Father of a person has to be determined either by what he professed during his life time or by what he confessed verbally or otherwise in his daily course of life or by conduct that is to say by performance of his jealousy rites in a particular manner--Held : In the event these elements are silent, his faith can be determined—
(i) By birth i.e. Faith of his parents
(ii) By Family i.e. Faith of his brothers, sisters or kiths and kins.
(iii) By nationality:-- i.e. faith of majority of a country of which he was national. [Pp. 1067 & 1068] B & C
(v) Qanun-e-Shahadat Orders, 1984 (10 of 1984)--
----Art. 46--Relevancy of evidence--Held: Eight item mention in Art. 46 of Qanun-e-Shahadat Order, 1984 are exception to the general rule of evidence that all oral evidence must be directed within the contemplation of Art. 71 of the Orders, 1984--Further held: Safeguard of cross-examination and element of prosecution for perjury, is absent in the cases covered under exceptions to Art. 46 and the maker of the statement is not to be examined as a witness at all--Art. 46 relates only to the relevancy of evidence and not to the manner to it's proof. [P. 1069] F
Mr. Taqi Ahmad Khan, Advocate for Appellants.
Malik Noor Muhammad Awan, Advocate for Respondents.
Date of hearing : 19.4.2006.
Judgment
Syed Hamid Ali Shah, J.--The apex Court has remanded this case for a fresh decision, on the following questions:--
(i) As to whether documents Exhibits D/1, D/2 and D/3 have been duly proved.
(ii) As to whether statement made by Imam Bakhsh in Ex. D. 1 and D.2 confirming that he belongs to Shia School of thought and the statement of Mst. Resham Bibi got recorded before the Revenue Authorities at the time of attestation of the inheritance mutation Ex. D.3 was not sufficient to hold that Imam Bakhsh belongs to Shia Sect in terms of Section 32 of the Evidence Act, 1913 read with Items 5 and 6 of Article 46 of Qanun-e-Shahadat Order, 1984."
(2) The backdrop of the above controversy is that mutation of inheritance was attested according to Shia Law, in favour of the appellants, being sons of Hayat Bibi, the real sister of Imam Bakhsh. The respondents being claimants of the property as collaterals, to the extent of 3/4th share, basing their claim on Sunni Law, instituted the suit for possession on 15.4.1978. It was claimed by respondents that the appellants have no concern with the property and impugned mutation is liable to be cancelled while possession is to be delivered to them. The appellants resisted the suit by filing written statement controverting therein the averments made in the plaint. Learned trial Court framed issues, recorded evidence of the parties and vide judgment and decree dated 19.5.2985, dismissed the suit. The impugned judgment was reversed in appeal and learned lower appellate Court, while accepting the appeal, decreed the suit on 31.7.1989. The second appeal was dismissed on 8.2.2001, which order was challenged before Hon'ble Supreme Court. The impugned order was set aside by the Apex Court and the case was remanded vide order dated 16.3.2005 to this Court for fresh decision on the above noted questions.
Learned counsel for the appellants has contended that Mutation No. 28 attested on 11.9.1977 (Ex. D3) was challenged by the respondents on the plea that Imam Bakhsh did not belong to Shia School of Thought and transfer of his land by way of inheritance to the appellants is illegal. Faith of Imam Bakhsh stood proved from Ex. D. 1 (Wassiat Nama), the statement on Oath of deceased Imam Bakhsh, i.e., affidavit sworn by him on 17.2.1969 i.e. Ex. D.2 and from Ex. D.3 i.e. the copy of mutation of inheritance of Imam Bakhsh. There are two marginal witnesses of Ex. D.1, Muhammad Akbar and Bashir Ahmad son of Imam. Latter, had since died while former appeared as DW.3 and supported the document. DW.3 has stated further that he personally knew Imam Bakhsh, Ex. D.1 was read over to him in his presence and he signed the document after going through it. DW.4, who was an advocate by profession, has admitted that he attested the document as Notary Public. Learned counsel has submitted that at the time of the attestation of impugned mutation, Mst. Raisham Bibi the widow of deceased recorded her statement and deposed that Imam Bakhsh was Shia by faith; used to attend "Majlis" and procession of "Matim". Learned counsel has emphasized that statement of Raisham Bibi is of vital importance to ascertain faith of Imam Bakhsh. He in support of his contention, has referred to the cases of "Syed Lala Hussain Shah vs. Mst. Robina Shaheen and another (PLD 2000 S.C. (AJ&K) 25), "Riaz Hussain and others vs. Board of Revenue and others" (1991 SCMR 2307) and "Mst. Sahib Bibi and others Vs. Lal" (1992 CLC 807) and "Nazir Ahmad and others vs. Abdullah and others" (1997 SCMR 281). Learned counsel has then submitted that "Wassiyat Nama" dated 17.2.1969 and affidavit of Imam Bakhsh were executed, prior to the controversy between the parties, thus, the matter falls within the ambit of Article 46, Items Nos. 5 & 6 of the Qanun-e-Shahadat Order, 1984. He went on to argue that Ghulam Ali one among the plaintiffs, in his statement has deposed that Imam Bakhsh was not Shia but Ahl-e-Tashi ( ) sufficiently proves the faith of the deceased. Muhammad Shafi (PW-2) who led the Jinaza prayer of Imam Bakhsh has stated that there was possibility that Imam Bakhsh had embraced Shia Faith. Mst. Latifan Bibi who appeared as DW.8, stated that Imam Bakhsh was Shia. The statement of Mst. Latifan Bibi was not cross-examined in this regard, her statement thus stands admitted. Learned counsel in support of this contention, invited attention to the cases of "Mst. Nur Jehan Begum through Legal Representatives vs. Syed Mujtaba Ali Naqvi" (1991 SCMR 2300), "Mst. Manzoor Mai vs. Abdul Aziz" (1992 CLC 235). Learned counsel with particular reference to the cases of "Patinharkuru Vallaban Chattan Rajah Amergal vs. Raman Varma and others" (AIR 1915 Madras 217), "Fazal Haq and others vs. Mt. Said Nur and others" (AIR (35) 1948 Lahore 113) and "Syed Lal Hussain Shah vs. Mst. Robina Shaheen and another" (PLD 2000 S.C. (AJ&K) 25) contended that Jinaza prayer is an act done subsequent to the death of a person, without his permission, cannot in any manner prove that he in his life time was follower of the school of throught according to which, his Jinaza prayer was offered.
Learned counsel for the respondents, on the other hand, has fully supported the impugned judgment of the learned appellate Court. He has submitted that the respondents are admittedly collaterals of deceased Imam Bakhsh who has died issueless, the respondents are as such, entitled to inherit his property and the appellants have no concern with his property. Learned counsel for the respondents/plaintiffs has referred to the statements of PWs I & II, who have admitted that the Jinaza prayer was offered according to Sunni Faith. PWs III to VI with specific reference to their personal knowledge have submitted that Imam Bakhsh was the follower of Sunni school of thought. PW. VII is present of "Anjuman-e-Shian" and has stated that Imam Bakhsh was not member of the Anjuman. PW. VIII Maqbool Ahmad, General Secretary of "Anjuman-e-Shian" stated that Imam Bakhsh was not Shia. PW-6 & XII stated that the appellants were Ahmadi. The signatures on Nikahnama Ex. P5/1 were admitted by PWs V & VI, which proves that the appellants are Ahmadis. Learned counsel while referring to Ex. D/1 and D/2, has submitted that such documents have no evidentiary value and the High Court in the judgment dated 8.2.2001 has held that Ex. D1 does not prove anything, while Ex. D2 is not admissible. Learned counsel has referred to the case of "Sher Zaman Vs. Mst. Nawab Khatoon and 7 others" (1998 SCMR 133) to contend that findings of the appellate Court, as to the faith of deceased Imam Bakhsh, do not call for any interference. Learned counsle has submitted that the so called admission of Ghulam Ali/plaintiff that Imam Bakhsh deceased was Ahl-e-Tashi, is due to illiteracy and as such cannot be deemed as admission on his part. His statement cannot be considered as admission, because it was made in the course of cross-examination, being out of context and belied by earlier statement. Learned counsel while referring to the cases of "Sardar Muhammad vs. Muhammad Akram etc." (2000 NLR Civil 345), "Amir Ali vs. Gul Shaker and 10 others" (PLD 1985 Karachi 365), "Sabir Hussain and others vs. Afrasayyab and others" (1989 CLC 1591) and "Ahmad Khan and 4 others vs. Sikandar" (1999 YLR 2692) contended that every Muslim citizen in Pakistan is presumed to be Sunni unless otherwise proved and burden to prove lies on the person who claims otherwise. The respondents have not rebutted the presumption through cogent evidence. It was contended that Ex. D.1 is attested by two witnesses but only one marginal witness has been produced. The scribe has also not been produced. Marginal witness Muhammad Akbar DW3 has not denied that he has been held be to ( ). The case of "Mst. Rasheeda Begum and others vs. Muhammad Yousaf and others" (2002 SCMR 1089) was referred to contend that Ex. D. 1 was to be proved in accordance with law. Proof set forth by the respondents does not meet the mandatory requirement of the provisions of Articles 79 and 17(2) of the Qanun-e-Shahadat Order, 1984. It was submitted that a will in favour of a legal heir is even otherwise void. Ex. D. 2 has not been proved through the evidence of scribe and the person who has identified him. DW4, the Oath Commissioner, has stated that neither Imam Bakhsh nor Allah Rakha has signed Ex. D. 2 in his presence. Ex. D2 is thus not proved. Learned counsel supported this contention from the principal of law laid down in the case of "Habib Bux vs. Zahoor ul Hasan" (1986 CLC 1119). It was submitted that the affidavit of a person who has not been cross-examined with regard to the contents of an affidavit, cannot be taken into consideration. Learned counsel found support from the cases of "Zafar Mirza vs. Mst. Naushina Amir Ali" (PLD 1993 Karachi 775) and "Barkat Ali vs. Muhammad Nawaz" (PLD 2004 S.C. 489) in this respect. Learned counsel while referring to Ex. D.3 has submitted that mutation cannot be used as evidence against the respondents, entries in mutation register are administrative proceedings and have no evidentiary value. Learned counsel while referring to the case of "Abdul Rahim and others vs. Muhammad Hayat and others" (2004 SCMR 1723) has submitted that mutation and entires therein need proof through leading primary or secondary evidence. The contents thereof have evidentiary value in terms of Articles 75 and 76 of the Qanun-e-Shahadat Order, 1984, only when proved. Learned counsel has referred to Article 46(V) and submitted that provisions of Item (5) relate to the statement regarding existence of any relationship. This provision of law does not provide anything with regard to the faith of a person. The documents are fictitious and fabricated and do not fall within the ambit of Items (5) of Article 46 of the Qanun-e-Shahadat Order, 1984. It was added that Item 6 (ibid) is also not applicable to the case of the appellants.
I have heard the learned counsel for the parties and perused the material available on the record.
The faith of Imam Bakhsh deceased, who has died issueless, is material in the instant matter, for the reasons that in case it is proved that Imam Bakhsh deceased was Shia, his property vests with the appellants and on the contrary, the respondents become entitled to inherit his estate. Pakistan, being in abundance of Sunni Muslims, the initial presumption is that every Muslim citizen is a Sunni unless other proved. The duty is cast upon the person who claims that a person is Shia, to prove it, through cogent and consistent evidence. The majority of Muslims in Pakistan, being Sunnis, it cannot, therefore, be ascertained that a person belongs to Suni school of thought, from the surrounding circumstances, i.e., offering of "Janaza Prayer" or funeral ceremonies of deceased by Sunni Alim or his birth and life existence. A person is not required to give his consent, as to where he has to take birth and by whom his "Janaza Prayer" is to be performed. Janaza Prayer is no determining factor of one's belief, being an act done after the death of a person and without his permission. The reference in this context can be made to the cases of "Syed Lal Hussain Shah vs. Mst. Rubina Shaheen and another" (PLD 2000 SC (AJK) 25) and "Amir Ali vs. Gul Sher and 10 others" (PLD 1985 Karachi 365). It was ruled in the case of "Amir Ali vs. Gul Shakar and 10 others" (PLD 1985 Karachi 365) that expressions and the conduct of deceased is relevant for the determination of one's Faith. Opinion of the parties and the faith of close relative has been held "not determining factor" by this Court in the case of "Zohran Mai vs. Mst. Siftan and others" (1983 CLC 2559). It was further observed by the Learned Court that the sect of a person cannot be determined by opinion of the parties but can be inferred from prevalent circumstances. The principle enunciated in the case of "Mt. Iqbal Begum vs. Mt. Syed Begum and others" (AIR 1933 Lahore 80) was that a person who used to visit shrine of Hazrat Data Ganj Bakhsh and participated in the "Khatam Sharif of Giyarveen" was declared as Shia, on the basis of his conduct and what he confessed, by holding that broad minded men of either sect, tolerate and even respect the observance of others.
The above survey leads me to the conclusion that no hard and fast test can be laid to ascertain one's belief or faith. It cannot be ascertained on the basis of one or more events. The faith of a person has to be determined either by what he professed during his life time or by what he confessed verbally or otherwise in his daily course of life or by conduct that is to say by performance of his religious rites in a particular manner. In the event, these elements are silent, his faith can be determined:--
(i) By birth i.e. Faith of his parents.
(ii) By family i.e. Faith of his brother, sisters or kiths and kins, (ii) By nationality i.e. faith of majority of a country of which he was national.
Now, I will revert to main issue and take up the first question: whether Ex. D/1, D/2 and D/3 have been duly proved. The evidence led by the respondents/plaintiffs as to the faith of the deceased Imam Bakhsh is oral and no documentary evidence in this respect was produced. None among the plaintiffs entered in the witness-box while leading affirmative evidence. Ghulam Ali who recorded his statement in rebuttal, has admitted that Imam Bakhsh was not a Shia but Ehl-e-Tashi. PW-Munir Ahmad in his cross-examination has admitted that he is ignorant about Ahmadi faith and also about Shia Faith. He further deposed that he does not know how Ahmadis offer their prayer. PW.II Muhammad Shafi son of Allah Din also admitted in his cross-examination that he had no knowledge about Shia Faith. PW. III, PW.IV & PW.V. have, however, stated that they know Imam Bakhsh who belonged to Ahl-e-Sunnat Wal-Jamaat and was not Shia. PW.III lodged a complaint against the appellant Muhammad Sharif, on which an inquiry was held and the complaint was dismissed. PW.IV is read uncle of PW.I and PW.V who are resident of another village. PW.VI is President of Anjuman-e-Hussaini and PW.VII is General Secretary of Anjuman-e-Shia. Both have stated that Imam Bakhsh was not member of their Anjuman/Association. They have admitted that is not essential that a Shia must be member of any Anjuman. Statement of PW.IX was not recorded completely. PW.V and PW.VI have recorded statements as to the faith of the appellant and not of the deceased. Oral evidence adduced by the plaintiffs do not prove with absolute certainty that deceased Imam Bakhsh was Sunni and not Shia. Most of the witnesses hardly knew the difference between Sunni and Shia. As against that the statement of Mst. Raisham Bibi before revenue authorities carries much weight. She being widow, spent most of the time with the deceased, was aware of the faith of her husband more than anyone else. It has not been asserted in the plaint that Ex.D/1 and Ex.D/2 are forged documents. Any evidence beyond the scope of pleadings cannot be considered. When the parties to the lis, stand to gain a loose valuable property, the oral evidence is to be approached with caution. It was held in case of "Mst. Sardar Bibi vs. Muhammad Bakhsh" (PLD 1954 Lahore 480) that in such circumstances it will be safer to rely on the evidence which is in accord with admitted circumstances. All the witnesses of the plaintiffs have not stated with corroboration about the faith of the deceased. Their statements were not flawless for one reason or the other. Muhammad Akbar (DW.3) a marginal witness of "Wassiyat Nama" (Ex.D/1) has admitted his thumb-impression on the document. He has stated that Bashir son of Imam Din, the other marginal witness has passed away, he recognized his thumb mark on the document and further affirmed that other marginal witness has affixed his thumb mark in his presence. DW. 3 has however stated that there is a possibility that his thumb mark can be forged and did not deny the suggestion that when he appeared in a family suit, the Court declared him hired witness. Syed Irfan-ul-Haq (DW.4) is a frank witness who in his examination-in-chief deposed that Allah Rakha put his thumb mark on Ex.D/2 and Imam Bakhsh signed the same before him but corrected his statement in cross-examination at his own by deposing that both the persons have admitted the thumb mark and signature on Ex.D/2 in his presence. He admitted that he in capacity of Notary Public has attested Ex.D/2. Ex.D/1 Wassiyat Nama and Ex.D/2 affidavit of Imam Bakhsh, the execution whereof, stands proved through statements of DW.3 and DW.4. Mst. Raisham Bibi recorded her statement before revenue authorities that Imam Bakhsh was Shia at the time of attestation of Ex.D/3 and thereafter never denied the factum of her statement. From the appraisal of evidence of the parties, assertions made in the plaint and from the statement of Mst. Raisham Bibi before revenue authorities, I have no hesitation to hold that the documents exhibits D/1, D/2 and D/3, have duly been proved.
The other question on which the case was remanded for re-writing the judgment is that the statement of Imam Bakhsh in Ex.D/1 and D/2 confirming that he belongs to Shia school of faith and the statement of Mst. Raisham Bibi recorded before revenue authorities at the time of attestation of Ex.D/3, sufficiently proves Imam Bakhsh's faith in terms of Article 46 (Items 5 & 6) of Qanun-e-Shahadat Order, 1984. Eight (8) items mentioned in Article 46 of the Qanun-e-Shahadat Order, 1984 are exception to general rule of evidence that all oral evidence must be direct within the contemplation of Article 71 of the Order, 1984. Generally, a witness who makes statement on Oath can be tested through cross- examination so that there is some sort of guarantee of truth to such statement. The safeguard of cross-examination and element of prosecution for perjury, is absent in the cases covered under exceptions to Article 46 and the maker of the statement is not to be examined as a witness at all. Article 46 of the Order, 1984 relates only to the relevancy of evidence and not to the manner of it's proof.
Imam Bakhsh belonged to a Sunni Family, he was resident of a village, where predominately the population is follower of Sunni Fiqa. He was a Patwari and remained posted in neighboring village Sayyadanwali for about 25 years. Whole village of Sayyadanwali, follows Shia school of faith. The respondents have neither produced any witness to disprove Exhibits D/1 & D/2, nor have requested the Court for the comparison of disputed documents through expert's opinion. Wassiyat Nama (Ex.D/1) and affidavit (Ex.D/2) were respectively executed and sworn by Imam Bakhsh on 17.2.1969, much before the controversy between the parties arose. Statements (Ex.D/1 and D/2) were admittedly made anti-litam motam and prior to litigation. It has been mentioned in D/1 by the deceased that he is issueless, had two wives of whom one has died, a sister Mst. Hayat Bibi, who has two sons namely Muhammad Sharif and Noor Ahmad. He thereafter conveys his intentions and reason for the execution of Ex.D/1, to rule out any dispute after his death among those who are concerned with him. It was then stated in Ex.D/1 that after his death his property be given to his legal heirs according to Shia law. Bare perusal of Ex.D/1 reveals that statement made in Ex.D/1 relates to affairs of Imam Bakhsh. Such statement falls within the ambit of Article 46 Item No. 6 of Qanun-e-Shahadat Order, 1984. In the case of "Patinharkuru Vallaban Chattan Rajah Amergel vs. Raman Varma and others" (AIR 1915 Madras 217). It was held that the statement of deceased relating to matter of his succession is admissible under Section 32 clause 5 of the Evidence Act not only to prove relationship by blood, marriage or adoption but also date of birth and mode of succession on the same principle. In the case of "Ram Bharose and others vs. Diwan Rameshwar Prasad Singh" (AIR 1938 Oudh 26) it was held that the deceased donor has made a statement in his will that the deed of gift was fictitious one. A similar statement was also made by daughter-in-law of the donor in a deed of relinquishment in his favour, the statement were held admissible u/S. 32 of the Evidence Act and such statements were held to be relevant u/S. 11(1) of the Evidence Act. In case of "Hira Lal Jwala Sahai vs. Sitla Kahna and another" (AIR (38) 1951 Pepsu 82) it was laid down that the statement of deceased for correction of pedigree table in previous proceedings to avoid dispute, falls within the ambit of Section 32(5) of the Evidence Act, Principal of law was enunciated in the case of "S. Veeraraghava Lyer vs. J.D. Muga Sait" (AIR 1950 Madras 486) that a statement made in the will is a statement within the meanings of Section 32(5 & 6) of the Evidence Act. Viewing the case in hand, in the above scenario, statements made in Ex.D/1 and Ex.D/2 are relating to the affairs of family to which deceased belonged, consequently are covered by Items Nos. 5 & 6 of the Qanun-e-Shahadat Order, 1984. A person knows about his faith more than the others, no matter how close are others, with that person. The affidavit of Imam Bakhsh has more evidentiary value than a person who claims to be his relative or friend. Despite a specific mention of these documents in the plaint, nothing has been asserted as to the genuineness of these documents. In the above perspective, it is concluded that the statements made in Exhibits D/1 & D/2 are covered by Article 46 of the Order, 1984, Items Nos. 5 & 6 and statement in these documents coupled with the statement of Mst. Raisham Bibi at the time of attestation of Mutation No. 28, prove sufficiently that Imam Bakhsh was Shia and followed Shia school of faith in his life time.
This points/questions framed by Hon'ble Supreme Court of Pakistan in the remand order dated 16.3.2005 are decided accordingly. Resultantly, the appeal is accepted, impugned judgment and decree of the lower Appellate Court dated 31.7.1989 is set aside, judgment and decree of learned trial Court dated 19.5.1985 is up held. Parties to bear their own costs.
(M. Ajmal Rana) Appeal accepted.
PLJ 2006 Lahore 1071
Present: Muhammad Khalid Alvi, J.
WAJID ALI KHAN--Petitioner
versus
DISTRICT OFFICER REVENUE, DCO OFFICE, LAHORE and 3 others--Respondents
W.P. No. 15751 of 2005, heard on 24.1.2005.
(i) Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 9--Muslim Family Law Rules, 1961, Rr. 3(c) & 6-A--Jurisdiction of Union Council--Held: Union Council had the jurisdiction to entertain and adjudicate an application where the wife reside at the time of moving application for maintenance. [P. 1073] A
(ii) Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 6(a)--Muslim Family Laws Ordinance, (VIII of 1961), S. 9--District Officer Revenue could only change the Chairman of the Council nominating some other member of the same Union Council to be the Chairman of Arbitration Council but he had no jurisdiction to transfer an application from one the other Union Council--Decision given by Union Council was without lawful authority having no jurisdiction--Petition Allowed. [P. 1073] B
Mr. Wali Muhammad Khan, Advocate for Petitioner.
Sh. Muhammad Saber, Advocate for Respondent.
Date of hearing : 24.01.2005.
Judgment
With the concurrence of the learned counsel for the parties, this petition is treated as "Pacca Case."
Brief facts of the case are that the respondent filed a petition under Section 9 of the Mulsim Family Laws Ordinance 1961 against the petitioner claiming her maintenance allowance before the Chairman Union Council Ward No. 190 Zaman Park Sanda Kalan, Lahore, which later on fell in the jurisdiction of Union Council No. 85 Sanda Kalan Lahore. Respondent feeling grievance against the Council filed a transfer application before the District Officer Revenue, who vide order dated 21.6.2002 transferred the petition to Union Council No. 82 Islampura. Arbitration Council of U.C. 82 after hearing the parties vide order dated 5.8.2004 granted maintenance allowance to the respondent at a rate of Rs. 3000/- per month with effect from 28.1.2001 to 19.8.2003. This order was assailed by the petitioner before the District Officer Revenue, Lahore, who vide order dated 2.6.2005 dismissed his revision petition, hence, this petition.
It is contended by the learned counsel for the petitioner that under Rule 3(c) of the Muslim Family Laws Rules 1961 jurisdiction to adjudicate application under Section 9 of the Muslim Family Laws Ordinance 1961 only vest where the wife resides. Admittedly the respondent/wife resides in the area of Union Council No. 85 Sanda Kalan; therefore, jurisdiction of arbitration council of Union Council No. 82 Islampura was not available. It is further submitted with reference to Rule 6-A that the transfer power of the District Officer Revenue is only limited to the extent of changing the Chairman of the Union Council for the purpose of the said case in the same Union Council but cannot be transferred to any other Union Council.
On the other hand, learned counsel for the respondent has tried to defend the impugned orders.
I have considered the arguments of the learned counsel for the parties.
The relevant provisions of the Muslim Family Laws Rules 1961 are reproduced for ready reference:--
Rule 3 The Union Council which shall have jurisdiction in the matter for the purpose of clause (d) of Section 2 shall be as follows, namely;
(c) in the case of an application for maintenance under Section 9, it shall be Union Council of the Union or Town where the wife is residing at the time of her making the application, and where application under that section is made by more than one wife, it shall be the Union Council of the Town or Union in which the wife who makes the application first is residing at the time of her making the application.
6-A. (1) Wherever, it is made to appear to the Collector, whether on the application of a party to the proceeding or on his information, that the Chairman is interested in favour of a party to any proceedings before the Arbitration Council or is prejudiced against any such proceedings, the Collector may, after giving notice to all the parties to the proceedings, appoint any other member of the Union Council as the Chairman for purposes of this Ordinance, and pending the passing of such order may stay the proceedings before the Arbitration Council.
(2) A Collector passing an order under this rule shall record in writing his reasons for the same."
According to Rule 3(c) the Union Council where the wife resides has the jurisdiction to entertain and adjudicate an application under Section 9 filed by her. There is no denying the fact that originally the application was entertained by Union Council No. 85 Sanda Kalan where the respondent was residing. This application was transferred on an application filed by the respondent to Union Council No. 82 Islampura by order of the District Officer Revenue, Lahore while exercising his power under Rule 6-A. Under Rule 6-A the District Officer Revenue could only change the Chairman of the Council nominating some other member of the same Union Council to be Chairman of the Arbitration Council for that particular case but he had no jurisdiction to transfer an application under Section 9 from one Union Council to the other Union Council; therefore, decision given by Union Council No. 82 Islampura dated 5.8.2004 was without lawful authority having no jurisdiction. Resultantly, order of the District Officer Revenue dated 2.6.2005 is also a nullity in the eye of law. As a result thereof this petition is allowed. Both the above said orders are declared to be illegal and without lawful authority. Resultantly the application filed by the respondent shall be deemed to be pending with the Arbitration Council of Union Council No. 85 Sanda Kalan and shall be decided afresh in accordance with law. However, it is expected that since the matter had already taken sufficient time the process shall be finalized within a period of five (5) months.
(Fozia Fazal) Order accordingly.
PLJ 2006 Lahore 1073
[Bahawalpur Bench, Bahawalpur]
Present: Sh. Hakim Ali, J.
RASHID MEHMOOD, etc.--Appellants
versus
MAKHDOOM AHMAD GHOUS--Respondent
RSA No. 8 of 1994(BWP), decided on 5.12.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. VIII, R. 5--Specific denial--Question of cross-examination--Held: When a portion of statement of a witness was not cross-examined it was deemed to be admitted--Predecessors of minor had been expired during the pendency of the suit ad all other legal representatives were brought on the record who had not contested the suit with their full interest. [Pp. 1076 & 1077] A & D
(ii) Evidence Act, 1872 (I of 1872)--
----Art. 50--Public document--Public document, was being produced, prepared by the official of Revenue Department, no objection was raised when that document was brought on record into evidence. [P. 1076] B
(iii) Punjab Pre-emption Act, 1913 (I of 1913)--
----S. 15--Waiver had to be established with cogent evidence--No such evidence was brought on the record so as to believe the waiver having been made to purchase the property in disputed--Revision dismissed. [P. 1076] C
Sh. Karimuddin, Advocate for Appellants.
Mr. Sajjad Hussain Khan Kanju, Advocate for Respondent.
Date of hearing: 5.12.2005.
Judgment
A decree of pre-emption, passed under old law of pre-emption i.e. the Punjab Pre-emption Act, 1913, has been challenged through the instant regular second appeal.
Facts in brief are that one Makhdoom Manzoor Ahmad Shah was owner of 487 kanals 10 marlas of agricultural lands, situated in Mauza Kot Makhdoom, Tehsil Bahawalnagar. He had sold that land through registered sale-deed on 14.3.1970 in favour of Sher Muhammad and Ghulam Muhammad, the predecessor-in-interest of present appellants. Makhdoom Ahmad Ghaus filed a suit for possession on the basis of superior pre-emptive right in the Civil Court on 27.2.1971 against the above noted sale, claiming himself `Yakjaddi' of the vendor i.e. Makhdoom Manzoor Ahmad Shah and Khatta Shareek of the disputed lands. The suit was decreed by the learned Civil Judge on 27.7.1976 while the appeal field against the judgment and decree remained unsuccessful to 11.4.1994 from learned Additional District Judge. Bahawalnagar. Hence this regular second appeal.
Learned counsel appearing on behalf of the appellants submits that
Makhdoom Ahmad Ghaus, plaintiff had claimed himself as Yakjaddi' of vendor, i.e, Makhdoom Manzoor Ahmad Shah in Para No. 4 of the plaint but had failed to prove his claim ofYakjaddi" from aforesaid vendor. As per learned counsel, pedigree table of 1966-67 was also produced by the plaintiff as Ex.
P-2 into the evidence yet no other corroborative or oral evidence to support the entires of pedigree table was brought into evidence by the aforesaid plaintiff. As per learned counsel the mere tendering of this pedigree table. Ex. P-2 was not sufficient to prove relationship of plaintiff with Makhdoom Manzoor Ahmad Shah, vendor. Referring to Section 50 of the Evidence Act, 1872 (Article 64 of the Qanun-e-Shahadat Order, 1984), learned counsel has submitted that it was incumbent upon the plaintiff to prove this pedigree table through witnesses who had special knowledge of relationship between the plaintiff and the vendor. As no such witness was brought into evidence, therefore, mere admission of Ex. P-2 pedigree table into evidence was not compliance of provision of aforesaid Section 50 of the Evidence Act, 1872.
He has also referred to PLD 2002 Lahore 159 (Mian Khan versus Abdul Aziz) to show that law requires that pedigree table must be proved through corroborative evidence. He has also cited 1996 SCMR 300
(Rehman versus Noora through his Legal Heirs) to support his proposition that production of pedigree table with no other corroborative evidence was not sufficient to prove relationship of plaintiff with the vendor. He has also half-heartedly raised the question of waiver and display of Rashid, one of the legal representatives of Sher Muhammad deceased, a minor, to be major during the suit proceedings. He has also raised the question of institution of suit by the father of plaintiff and has also cited the expert evidence of Mr. M.A.
Nomani, DW-1, who had proved that signatures on the plaint of the alleged plaintiff were not bearing similarity in their characters with those of plaintiff's sample signatures obtained during the Court's proceedings for the examination purposes.
In rebuttal, learned counsel appearing on behalf of the respondent replies that assertion made in Para No. 4 of the plaint that the plaintiff was `Yakjaddi' and "Khata Shareek" were not specifically and unequivocally refuted by the vendees/defendants in their written statement. According to Order VIII, Rule 5 of the CPC, this assertion was to be believed to be true and correct and having been admitted by the defendants. Learned counsel has also submitted that PW-3 in his statement on oath had stated that plaintiff was nephew of the vendor, but this statement was never challenged or disputed during the deposition of aforesaid PW-3 Abdur Rahman. He has also referred to the statement of PW-5 Makhdoom Ahmad Ghaus, the plaintiff, and has stated that the aforesaid plaintiff had deposed on oath that vendor was his uncle but this material portion of the statement was not cross-examined also. Therefore, the learned Courts below have delivered judgments concurrently and correctly. The instant appeal may be dismissed with costs.
After considering the arguments of both the learned counsels and from the examination of the record, it has transpired that assertion of the plaintiff that he had superior pre-emptive right on the basis of Yakjaddi' andShareek Khata' in the plaint were not controverted in clear and unambiguous words. In Para No. 4 of the written statement the only words used were " ." But these words were not sufficient to consider the denial of the existence of superior right of plaintiff. In that para, it was also entered by defendants that the plaintiff, if he had any right had waived it, due to his words and acts. From the above noted reply, it appears that defendants were conscious of the fact that plaintiff was having superior right as against them. It was so that when the plaintiff appeared as PW-5 into the witness-box, he had asserted on oath that Makhdoom Manzoor Ahamd Shah, vendor was his uncle, even this important piece of his statement, was not refuted by putting any question in cross-examination. It is settled law that when a material portion of the statement of a witness is not cross-examined, it is deemed to be admitted. It is also pertinent to point out that PW-3 Abdur Rahman witness of plaintiff was asked the question in cross-examination with regard to the relationship who had also unequivocally stated that plaintiff was nephew of vendor but this portion was never denied or cross-examined further to disprove the relationship of plaintiff with the vendor or to shatter the testimony of this witness, with regard to this reply of relationship question. Ghulam Muhammad, one of the defendants, had appeared as DW-6 but in his statement, I have not found a single word denying the existence of relationship of plaintiff with the vendor. He had not deposed that the plaintiff had got no superior right as against the defendants; rather his insistence in the statement was found with regard to the factum of waiver. In this statement he had stated that plaintiff was asked to purchase the lands but he had refused to purchase it. From this statement it is proved that superior pre-emptive right of the plaintiff was there, it was so that he was asked to purchase the property in dispute.
As regards the objection of the learned counsel for the petitioners with regard to the proof of relationship in accordance with the provisions of Section 50 of the Evidence Act, 1872, I have noted that when pedigree table of 1966-67, a public document, prepared by the official of Revenue Department under the law was being produced, no objection was raised when that document was brought on record into evidence. As the defendants had not contested the relationship of plaintiff with the vendor, therefore, the objection of proof in consonance with the provision of Section 50 of the Evidence Act, 1872, particularly in the above noted legal and factual admissions loses its significance.
After some arguments, petitioners, learned counsel has admitted that by mere advertisement in a newspaper, the waiver could not be established. Under the Punjab Pre-emption Act of 1913, waiver had to be established with cogent evidence. No such evidence was brought on the record so as to believe the waiver having been made by the plaintiff to purchase the property in dispute.
As regards the display of Rashid, one of the minor legal heirs of Sher Muhammad, vendee/defendant, as major, no benefit can be given to the appellants, and appeal cannot be accepted as it was merely an irregularity which was curable. The learned counsel has not been able to point out any prejudice having been caused due to this fact. It is worth mentioning that Sher Muhammad, one of the vendees/defendants, the predecessor of the above-mentioned minor had expired during the pendency of the suit and all other legal representatives of aforesaid Sher Muhammad, deceased were brought on the record who had not contested the suit with their full interest. It was Ghulam Muhammad, defendant, who was contesting of the suit, and appeals.
As regards the objection that the suit was not filed by plaintiff himself and the signatures of plaintiff were not found identical to that of those taken as sample in the Court by M.A. Nomani. Handwriting Expert, it would be suffice to say that this expert evidence was controverted by production of Zakaullah Malik, another Handwriting Expert by plaintiff into evidence was PW-1, who had contradicted the report of M.A. Nomani, Handwriting Expert. Therefore, evidence of DW-1 was neutralized by production of another handwriting expert, namely Zakaullah Malik. As the plaintiff has owned the signatures and the institution of the suit, therefore, it has to be believe correct till it is disproved by sound evidence otherwise.
Both the learned Courts below have concurrently found the facts and case in favour of respondent/plaintiff, it is, therefore, that they have delivered concurring judgments. These need not be interfered with, as those have not been found delivered against any provision of law and the rules of appreciation of evidence. Accordingly, this RSA is dismissed with no order as to costs.
(Fozia Fazal) Revision dismissed.
PLJ 2006 Lahore 1077
[Bahawalpur Bench, Bahawalpur]
Present: Sh. Hakim Ali, J.
Hafiz MUHAMMAD RAMZAN--Petitioner
versus
DEPUTY DISTRICT OFFICER (REVENUE) TEHSIL BAHAWALPUR & another--Respondents
WP No. 3756 of 2005(BWP), decided on 6.3.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XX, R. 14--Decree in pre-emption suit--Title was deemed to accrued from the date of payment of the purchased money by the pre-emptor and the title would be deemed to have accrued to pre-emptor, from the date of such deposit with the payment of sale consideration by the pre-emptor, he become owner of the property in dispute and no other document or deed was required for transfer of rights in the property--Deposit of the amount as required by the decree automatically transferred the title in favour of the pre-emptor from the vendee. [P. 1080] B
(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 5--Right of Pre-emption--Pre-emption is a right of substitution--In the sole transaction, the vendee is substituted by the entry of pre-emptor when a decree was passed--In other words the decree was not created any fresh transaction of sale or gave birth to new alienation--The transfer which was evidenced through the impugned sale in the pre-emption suit remained same--It was only the person who was substituted. [P. 1079] A
(iii) Registration Act, 1908 (XXI of 1908)--
----S. 17(6)(ii)--Decree had been exempted from registration therefore, the pre-emption decrees did not require to register with the sub-registrar of the area concerned--Petition accepted. [P. 1080] C
Mr. Muhammad Yousuf Sami Khan, Advocate for Petitioner.
Ch. Shafi Muhammad Tariq, AAG alongwith Tariq Javed, Naib Tehsildar and Munawar Hussain Patwari for Respondent.
Date of hearing : 6.3.2006.
Order
A decree for possession on the basis of superior right of pre-emption, passed in favour of writ petitioner, on 5.1.2004 against one Sheikh Khalid Hameed, with regard to Residential Plot No. 6, situated in Mauza Chah Peepal Wala, extended block of Model Town-A, Bahawalpur, was tried to be incorporated into the revenue record by filing an application to Tehsildar/Assistant Collector Ist Grade, Bahawalpur, but upon his refusal on 27.9.2004, the instant writ petition has been filed in this Court.
Facts as narrated by the learned counsel for the writ petitioner and coming out from the record, are that Sheikh Khalid Hameed had purchased a residential plot Bearing No. 6, Measuring 5850 Sq. Feet, situated in Mauza Chah Peepal Wala (extended block of Model Town-A, Bahawalpur) through registered sale-deed dated 13.12.1995, allegedly for Rs. 1,08,000/- only. The suit was filed within the prescribed period in the year 1996. After contesting the suit for a few years, both parties i.e. the pre-emptor and the vendee entered into compromise and the vendee after accepting the sale amount, got the decree passed in favour of Hafiz Muhammad Ramzan, plaintiff from the Court of learned Civil Judge, Bahawalpur on 5.1.2004 in Civil Suit No. 116/2003, instituted in the year 1996. To get the aforementioned decree implemented into revenue record, Hafiz Muhammad Ramzan moved an application to Tehsildar/Assistant Collector Ist Grade, Bahawalpur for the entering and sanctioning of a mutation into revenue record, on the basis of the above noted judgment and decree, dated 5.1.2004, passed in this favour. After reports were made by the subordinate revenue officials of the Deputy District Officer (Revenue), Tehsil Bahawalpur, he refused to implement the decree on 27.9.2004, on the pretext that the decree holder must get the decree registered from the Sub-Registrar prior to its implementation in the revenue record. Aggrieved from this order dated 27.9.2004, the instant writ petition has been filed.
The learned counsel appearing on behalf of the writ petitioner submits that the decree in question was not liable to be registered with the Sub-Registrar because it had not created any fresh rights in favour of decree holder. It was a decree of substitution and was not required to be registered even on the basis of Section 17 of the Registration Act. It has also been submitted by him that the Revenue Officer was not entitled to refuse its implementation.
On the other hand, learned AAG has submitted that the land involved in the decree was an urban plot. Although it was a share of a khata yet it had transferred right in the land/plot in question in favour of the writ petitioner. Therefore, it registration was necessary before its incorporation into the revenue record.
Both the learned counsels have been heard, law scanned and record perused. Before entering into discussion as to whether the decree in question can be refused to be implemented by the revenue officer concerned on the ground, which has been narrated and stated in the impugned order dated 27.9.2004 by the DDO (R), Tehsil Bahawalpur, it would be necessary to examine the nature of the decree. It is settled law that right of pre-emption is a right of substitution. In the sale transaction, the vendee is substituted by the entry of pre-emptor when a decree is passed. In other words, the decree is not creating any fresh transaction of sale or giving birth to new alienation. The transfer which was evidenced through the impugned sale in the pre-emption suit remains the same. It is only the person who is substituted. Vendee is replaced by the pre-emptor. Therefore, it is not a transfer anew. Order XX, Rule 14 of the CPC has expressly provided that the title is deemed to accrue from the date of payment of the purchase money by the pre-emptor and the title shall be deemed to have accrued to the pre-emptor, from the date of such deposit. To be more appropriate on this point, the intent of the provision is that with the payment of sale consideration by the pre-emptor, he becomes owner of the property in dispute and no other document or deed is required for transfer of rights in the property. The deposit of the amount as required by the decree automatically transfers the title in favour of the pre-emptor from the vendee/defendant. In 2004 SCMR 117 (Shahra and other versus Member, Board of Revenue, Punjab and others), Hon'ble Supreme Court had held that "sanction of mutation in pursuance of decree of a Civil Court was merely formality and was not independent act, and according to law did not by itself independently, had the effect of creating any right". it was also held that with the deposit of pre-emption money, the pre-emptor/decree holder was vested with full ownership rights of the land, the subject-matter of the pre-emption decree. In AIR 1929 Allahabad 237 in a Division Bench judgment, pronounced in case of Ram Lal versus Harpal and another), it was settled that under Order XX, Rule 14(b) of the CPC, with the deposit of pre-emption money, the title of the property accrues to the pre-emtpor and a registered document was not necessary for passing of title to the pre-emptor. This view was also repeated in AIR 1949 Nagpur 338 (Bajirao Samaji Salewar versus Abdul Ghaffar son of Sheikh Rahman).
According to Section 17 of the Registration Act, 1908, the decree has been exempted from registration under Clause 6 of sub-section (2) of Section 17 of the Registration Act, 1908, therefore, the pre-emption decree does not require to be registered with the Sub-Registrar of the area concerned. Accordingly, the writ petition is accepted and the impugned order dated 27.9.2004 is declared illegal and unlawful. Consequently, the respondents are directed to implement the decree in question into the revenue record, maintained by the revenue department within shortest possible time, preferably within two months. No order as to costs.
(Fozia Fazal) Petition accepted.
PLJ 2006 Lahore 1080
Present: Muhammad Muzammal Khan, J.
IRSHAD AHMAD--Petitioner
versus
MUHAMMAD SHARIF and another--Respondents
Civil Revision No. 1260 of 2002, decided on 24.2.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. 7, R. 11--Rejection of plaint--There was certainly, a cause of action about adjustment of Nikahnama--Plaint as it stood, did disclose a cause of action and thus it could not be rejected. [P. 1083] A
(ii) Mulsim Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 5--Jurisdiction--Matter pertaining the jactitation simlicitor inter-spourses was exclusively triable by Family Courts established for this purpose because before these Courts exclusive disputes of matrimonial nature had been made triable by the legislature--The suit was triable by the Civil Court and was correctly filed by the petitioner. [Pp. 1083 & 1084] B & E
(iii) Specific Relief Act, 1877 (I of 1877)--
----S. 39--Suit was filed for the adjustment of Nikahnama and there was a reasonable apprehension that if outstanding would cause him serious injury thus the case was covered and maintainable requiring determination on merits. [P. 1085] F
(iv) Words and Phrases--
----Jactitation is boasting of something which is challenged by another especially with reference to suit of jactitation of marriage where one of the two parties has falsely boasted or given out that he or she was married, whereby a woman reputation of their matrimony might ensure and the other dues for an order enjoining perpetual silence--It arises where one person intends to keep the other silent in respect of boasting of existence of marital relations between the two. [P. 1083] C
(v) Jurisdiction--
----Law promulgated for settlement of dispute between husband and wife is that in case any part of the married couple disputes, such suit certainly would come before the Courts of exclusive jurisdiction established in the behalf and one cannot maintain civil suit but where such relief is claimed by a person other than husband and wife, suit in this behalf would be entertained, adjudicated, tried and decided by the civil Court of ultimate jurisdiction--Courts below acted with illegality and irregularity in rejecting petitioner's plaint and in dismissing his appeal, whereas his suit would have decided on merits after putting the parties to trial in accordance with law--Petitioner's suit would be deemed to be pending before trial Court which would be decided in accordance with law--Petition accepted. [Pp. 1083 & 1085] D & G
Mrs. Rizwana Anjum Mufti, Advocate for Petitioner.
Mr. Khan Muhammad Bajwa, Advocate for Respondent No. 1.
Mr. Shahid Azeem, Advocate for Respondent No. 2.
Date of hearing : 24.1.2006.
Judgment
Instant civil revision was ordered to be re-heard by this Court vide order dated 30.1.2003 on an application moved by Respondent No. 1 Muhammad Sharif (C.M. No. 1460-C/2002). Revision petition was initially accepted on 18.10.2002 by my learned brother Parvez Ahmad, J. (as he then was) and the case was remanded to the trial Court with the finding that Civil Court is competent to adjudicate upon suit filed by the petitioner for declaration challenging Nikahnama inter Respondent No. 1 and Mst. Nusrat Bano deceased daughter of the petitioner. Civil revision assailed orders dated 21.5.2001 and 19.3.2002 passed by the learned Civil Judge and learned Additional District Judge, Lahore, whereby petitioner's plaint was rejected and his appeal was dismissed, respectively.
Succinctly, relevant facts are that Irshad Ahmed petitioner filed a suit for declaration to the effect that Nikahnama dated 5.3.1997 between Respondent No. 1 and Mst. Nusrat Bano, the deceased daughter of the petitioner, registered with Respondent No. 2, may be declared fictitious, fabricated, based upon fraud and void, having no effect upon his rights. It was also prayed that Respondent No. 2 be restrained through permanent injunction from issuing any copy of the said Nikahnama and Respondent No. be restrained from pretending himself as husband of Mst. Nusrat Bano or using the Nikahnama anywhere for any purpose. Petitioner pleaded in his plaint that Muhammad Sharif Respondent No. 1 was class fellow of the deceased Mst. Nusrat Bano, who forcibly got her certain photographs and started threatening her to marry with him and in this manner she was being black mailed. According to the petitioner, deceased Nusrat Bano was forcibly abducted by Respondent No. 1 on 4.3.1997 and was kept in Al-Noor Hotel, Lahore, where she was locked in a room and was forced to sign/thumb mark 3/4 blank papers. She was recovered by the police on 8.3.1997 during the investigation of case vide FIR No. 95/1997. Respondent No. 1 took defence before the police that he married the deceased Nusrat Bano and produced Nikahnama dated 5.3.1997. It was further averred that entries in the Nikahnama were found incorrect/false as names and addresses of the parties and witnesses etc. were found to be fictitious/non-existent. Petitioner emphasized for registration of criminal case for committing forgery, which was ultimately registered vide FIR No. 227/97 under Sections 420, 468, 471, 469, 467/109 PPC with Police Station Lower Mall, Lahore through orders of this Court in Writ Petition No. 2399/1997. The Investigating Officer found the Nikahnama as forged/fabricated and Respondent No. 1 was sent up to face trial. It was also pleaded that both the criminal cases were pending adjudication before the Courts of competent jurisdiction.
Respondent No. 1 being defendant in the suit contested the same by filing his written statement, wherein a preliminary objection was raised to the effect that the petitioner had no cause of action to file the suit. The Learned Civil Judge, who was seized of the matter, after framing preliminary issue regarding cause of action, rejected the plaint of the petitioner vide order dated 21.5.2001.
Petitioner being aggrieved of rejection of his plaint, filed an appeal before the learned Additional District Judge but remained unsuccessful, as the same was also dismissed on 19.3.2002. He, thereafter, filed titled revision petition, which was heard and decided on 18.10.2002, as noted above, but was ordered to be re-heard on application of Respondent No. 1.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, Respondent No. 1 claimed himself husband of deceased daughter of the petitioner namely, Mst. Nusrat Bano, on the basis of alleged forged Nikahnama dated 5.3.1997 and he is his this capacity would attempt to inherit property coming to share of deceased Nusrat Bano, being predeceased daughter of the petitioner by virtue of Section 4 of Muslim Family laws Ordinance, 1961. Besides it, Respondent No. 1 by virtue of Nikahnama in question would claim himself to be son-in-law of the petitioner, creating in him a right to intervene in affairs of family of the petitioner, thus the petitioner certainly had a cause of action about adjudgment of Nikahnama dated 5.3.1997. Petitioner's plaint, as it stood, did disclose a cause of action and thus the same could not have been rejected by invocation of provisions of Order VII, Rule 11 CPC.
The next question, which hinges for determination is as to whether suit like the one in hand, which indirectly involves jactitation of marriage of deceased daughter of the petitioner would be triable by the Family Court as per Section 5 of the Family Courts Act, 1964 and Schedule thereof. A joint reading of Section 5 and Schedule to the Muslim Family Laws Ordinance, 1961, makes it abundantly clear that matter pertaining to jactitation simplicitor inter-spouses is exclusively triable by Family Courts established for this purpose because before these Courts exclusive disputes of matrimonial nature have been made triable by the legislature. Situation is altogether changed in cases where the principle of jactitation is pressed or brought for adjudication by third parties, who are not one of the spouses i.e. husband or wife, as in the case in hand where father of the girl claimed jactitation of her marriage. To resolve the controversy as to whether suits involving jactitation of marriage by third parties, one has to keep in mind ordinary dictionary meaning of "jactitation" which has been defined in Balck's Law Dictionary as :"boasting of something which is challenged by another". This word has been defined in Mozlely and Whiteley's Law Dictionary with the meaning "boasting of something which is challenged by another specially with reference to suit of jactitation of marriage where one of the two parties has falsely boasted or given out that he or she was married to the other, whereby a common reputation of their matrimony might ensue and the other sues for an order enjoining perpetual silence on that head". The words "jactitation" and "jactitation of marriage" are explained in the `Twentieth Century Dictionary' as follows:
"Jactitation; n. restless tossing in lines; twitching or convulsion; tossing or bandying about; bragging; public assertion, esp. ostentatious and false, Jactitation of marriage, pretence of being married to another".
In Halsbury's Laws of England (Third Edition) Volume 12, page It 223, Paragraph 418, the Form of Suit of Jactitation is dealt with. reads as follows:
"FALSE BOST OF MARRIAGE.--If anyone persistently and falsely alleges marriage with another, the latter may obtain in a suit for jactitation of marriage a decree of perpetual silence. Only the person complaining that he has to been misrepresented can present such a petition. It is now a rare procedure.
A suit for jactitation is the only case in which a matrimonial suit can, as of right, be proceed with, without prima facie proof of a marriage de facto.
In Goldstone v. Goldstone (1922) 127. LTR 32), this term was explained as follows:
"Jactitation of marriage is an unwarrantable assertion that marriage exists, and it has been within the jurisdiction of this Court for many years to intervene to put to silence the person making a false declaration of marriage. One answer to such a suit is that the party complaining has acquiesced in the statement, he cannot after such acquiescence put to silence a person who persists in representations which he has previously authorized. The two questions which arise are; (1) whether in fact there was a ceremony of marriage and whether that ceremony was valid; and (2) if not, whether the petitioner has permitted and encouraged the respondent to represent herself as his wife".
Case law available on the subject including the judgments referred by the learned counsel for the parties, simply revolved around matrimonial dispute between husband and wife and the suits for jactitation filed by anyone of them but none of those goes to settle the dispute whether any third person can seek such declaration and where he should go. Above discussed ordinary dictionary meanings of word jactitation clearly indicate that it arises in the situation when one person intends to keep the other silent in respect of boasting of existence of marital relations between the two. According to my analysis, the law promulgated for settlement of dispute between husband/wife is that in case any part of the married couple disputes, such suits certainly would come before the Courts of exclusive jurisdiction established in this behalf and he/she cannot maintain civil suit but where such relief is claimed by a person other than husband/wife, suit in this behalf shall be entertained, adjudicated, tried and decided by the Civil Court of ultimate jurisdiction. The proposition under discussion, if looked from another angle of applicability of Section 5 of Muslim Family Laws Ordinance, 1961 to third person, the irresistible conclusion would be the same that the suit in hand was triable by the Civil Court and was correctly filed by the petitioner, there. Before parting with the judgment I must observe that petitioners' suit, as filed, was for adjustment of document/Nikahnama and he had reasonable apprehension that if, if left outstanding, would cause him serious injury thus the same was covered and maintainable under Section 39 of the Specific Relief Act, 1877, requiring determination on merits.
(Fozia Fazal) Order accordingly.
PLJ 2006 Lahore 1085 [Bahawalpur Bench Bahawalpur]
Present: Sh. Hakim Ali, J.
Mst. KAUSAR JABEEN--Petitioner
versus
ADDITIONAL DISTRICT JUDGE & another--Respondents
W.P. No. 3998 of 2005/BWP, decided on 21.12.2005.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 9 (1)(a)--Barring provisions--Restitution of conjugal rights--Husband had right to raise the plea of restitution of conjugal rights in his written statement--No separate suit could be filed by him--Plea for restitution of conjugal rights was raised and an issue was also framed already by defendant in his written statement of consolidated suits--Suit for restitution of conjugal rights was not maintainable--Held: Order passed by First Appellate Court was declared illegal, unlawful and without lawful authority, so it was set aside while the order by Family Court was restored and maintained--Petition accepted. [P. 1087] A, B
Mrs. Samina Qureshi, Advocate for Petitioner.
Mr. Shabbir Ahmad Afghani, Advocate for Respondent No. 2.
Date of hearing : 21.12.2005.
Order
Facts as narrated by the learned counsel for the petitioner, stated in the writ petition and found from the record, are that Mst. Kausar Jabeen, the writ petitioner had filed a suit for recovery of dower against Muhammad Akmal, Respondent No. 2 on 20.8.2002. A second suit was filed by her for recovery of maintenance allowance on 7.1.2003 and third suit was filed by her for recovery of dowry articles on 19.7.2003. All these suits were consolidated and were being proceeded against Muhammad Akmal, Respondent No. 2, when a suit for restitution of conjugal rights was filed on 26.3.2005 by Muhammad Akmal, Respondent No. 2 before the learned Judge Family Court, Ahmadpur East. An objection was raised by the petitioner qua the maintainability of that suit for restitution of conjugal rights before the learned Judge Family Court by filing an application that the suit could not be instituted in the presence of barring provision of Section 9 sub-section (1)(a) of the West Pakistan Family Courts Act, 1964. Learned Judge Family Court accepted the application and rejected the plaint for restitution of conjugal rights on 29.4.2005. Aggrieved from that rejection of plaint order, an appeal was filed before the learned Additional District Judge, Ahmadpur East, which was accepted on 25.10.2005. Hence, this writ petition.
Learned counsel for the writ petitioner submits that in the presence of suit for recovery of maintenance allowance, filed on 7.1.2003, separate suit for restitution of conjugal rights could not be filed by Respondent No. 2, Muhammad Akram, due to bar created by sub-section (1) (a) of Section 9 of the West Pakistan Family Courts Act, 1964. It has also been argued by the learned counsel that present suit for restitution of conjugal rights was a move to make ineffective the orders passed in the earlier suits, by which the writ petitioner was not allowed to produce additional evidence. The suit for restitution of conjugal rights was filed separately to make ineffective that order. It has further been stated by the learned counsel that in all the consolidated suits, the plea for restitution of conjugal rights was already raised by Respondent No. 2 and an issue for that purpose was also framed by the aforesaid learned Judge Family Court. Therefore, the suit for restitution of conjugal rights filed by Respondent No. 2 on 24.3.2005 was not competent.
Refuting the arguments, learned counsel appearing on behalf of Respondent No. 2 submits that the writ petitioner, during the pendency of the above noted suits had come to reside in the house of Respondent No. 2. Therefore, there was no occasion or opportunity to file a suit for restitution of conjugal rights. The suit for restitution of conjugal rights was, hence, competent.
After considering the arguments of both the learned counsels, and from the perusal of the record, I have noted that sub-section (1a) of Section 9 of the West Pakistan Family Courts Act, 1964 has clearly and in unequivalocal terms barred the filing of a suit for restitution of conjugal rights when a suit for dissolution of marriage or for recovery of maintenance allowance was pending. To appreciate it, Section 9 sub-section (1a) of the West Pakistan Family Courts Act, 1964 is reproduced as follows:--
"(1a) A defendant husband may, where no earlier suit for restitution of conjugal rights is pending, claim for a decree of restitution of conjugal rights in his written statement to a suit for dissolution of marriage or maintenance, which shall be deemed as a plaint and no separate suit shall lie for it."
(Fozia Fazal) Petition dismissed
PLJ 2006 Lahore 1087
Present: M. Bilal Khan, J.
MUHAMMAD SAFDAR--Petitioner
versus
DIRECTOR, ANTI-CORRUPTION and 2 others--Respondents
W.P. No. 5636 of 2006, decided on 21.6.2006.
(i) Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898), S. 173--Multiple investigations--Subsequent to submission of challan--Multiple investiga-tion can be carried out in a criminal case even after submission of the report under Section 173 Cr.P.C. and a fresh challan could also be submitted. [P. 1090] B
2000 SCMR 453; PLD 1988 Lah. 466 and 1993 P.Cr.L.J. 97;
(ii) Constitution of Pakistan, 1973--
----Art. 199--Ombudsman Punjab gave directions to Executive District Officer (Rev) & Director, Anti-Corruption establishment to initiate proceeding--Deputy Director Anti-Corruption Establishment initiated action and re-investigation of FIR--Order of Ombudsman and subsequent action initiated by Anti-Corruption authorities--Assailed--Validity--Pleas raised on behalf of the petitioner, a factual inquiry needs to be under taken, which cannot be done by High Court while seized of a Constitutional petition--Petitioner failed to point out any illegality in the order passed by Ombudsman--Petition dismissed. [Pp. 1090 & 1091] A, D & E
(iii) Practice and Procedure--
----Criminal and Civil proceedings--Held: Criminal proceedings are not barred in the presence of civil proceedings and civil and criminal proceedings could be continued or proceeded with simultaneously. [P. 1091] C
1996 SCMR 186; 1993 SCMR 2177 and PLD 1985 SC 134.
Mr. Muhammad Aslam Sandhu, Advocate for Petitioner.
Ch. Aamir Rehman, Addl. Advocate-General assisted by Mr. Tanvir Ahmad Shami, Advocate for State.
Mr. Tariq Mehmood, Deputy Director (Investigation) and Hassan Raza, Assistant Director, ACE, Gujranwala with record.
Date of hearing : 21.6.2006.
Order
Muhammad Safdar son of Faqir Sain, the petitioner, who is a Revenue Patwari, has filed this Constitutional petition whereby he has challenged the order dated 26.4.2005 passed by the learned Provincial Ombudsman Punjab, Lahore (Respondent No. 4) as well as the subsequent action initiated against him by Director Anti-Corruption Establishment, Farid Kot House, Lahore and Deputy Director, Anti-Corruption Establishment, Sialkot Circle Sialkot Respondents Nos. 1 and 2 respectively.
"10. Director, Anti-Corruption Establishment Punjab, Lahore is therefore, directed to:--
"(i) get the matter reinvestigated through a senior and competent officer in view of the observations made above and final outcome of the action taken in the light of reinvestigation of the case in accordance with the law, be reported by 15.6.2005.
(ii) take suitable action against Shakeel Nasir Assistant Director for not conducting the inquiry properly, prima-facie, with malafide intention. The outcome of the action taken against him be intimated by 15.6.2005.
(a) initiate disciplinary action against Deputy District Officer (Revenue) Sialkot and submit the case to the competent authority for taking appropriate action against him in accordance with the law.
(b) proceed against Patwari halqa Mauza Hundal who issued incorrect Fard Malkiat against the revenue record on 26.3.1994 under the Punjab Removal from Service (Special Powers) Ordinance, 2002."
It was on the basis of the aforesaid directions that Deputy Director Anti-Corruption Establishment Sialkot Circle had initiated action and re-investigation of FIR No. 147/95 dated 18.12.1995, Police Station Directorate ACE, Punjab had begun. The orders of the Ombudsman dated 26.4.2005 and the subsequent action initiated by the Anti-Corruption authorities have been impugned through this constitutional petition.
It has been argued by the learned counsel for the petitioner that as the matter regarding sale of land in dispute was subjudice before a Civil Court, therefore, the Ombudsman did; not have jurisdiction to issue the directions as he did that the Ombudsman vide his order dated 18.3.2002, on a previous complaint (No. C-6889 ADV-I-546/2001) filed by Muhammad Alam (Respondent No. 3), had already observed that if the latter had any grievance he may approach the Director-General ACE, therefore, no fresh direction could be issued; that at any rate even if the impugned order dated 26.4.2005 passed by the Ombudsman remains in the field it does not contain any direction to the Anti-Corruption Establishment to conduct any investigation against the petitioner; that the Ombudsman had only directed the Executive District Officer (Revenue) Sialkot to proceed against the Patwari Halqa of Mauza Hundal, who had allegedly issued incorrect Fard Malkiat against the revenue record in the year 1994, therefore, inclusion of the petitioner in investigation by Anti-Corruption department is without lawful authority and is of no legal effect; that the petitioner is a resident of Mauza Hundal and during his entire career he had never been posted as Patwari Halqa in the said village; that at the relevant time the petitioner had been posted at Halqa Simbly Bajwat, district Sialkot which is located at a distance of 50 miles from Mauza Hundal and even otherwise he signed as Muhammad Safdar and not Safdar Ali that in the previous investigations carried out in FIR No. 147/95 the petitioner had been declared to be innocent, therefore, the said FIR to the extent of the petitioner needs to be quashed; that the impugned order dated 26.4.2005 passed by the Provincial Ombudsman suffers from the principle of "audi alteram partem" as the petitioner had not been provided with any opportunity to present his point of view.
On the other hand the learned Addl. Advocate General argued that the petitioner had an equally efficacious remedy available to him by way of filing a representation before the Governor which has not been resorted to that in W.P. No. 14817-05 which had been filed by the petitioner himself this Court vide its order dated 28.11.2005 had endorsed the order of the Ombudsman dated 26.4.2005 whereby reinvestigation of the case had been ordered; that the said order dated 26.4.2005 of the Ombudsman had thus attained finality and the matter cannot be reopened again; that the petitioner has not been able to point out any prejudice having been caused to him by the order of the Ombudsman and in this scenario the principle of "audi alteram partem" is not applicable; that at any score the direction of holding reinvestigation by the Ombudsman cannot be termed as an order adverse to the petitioner; that during the reinvestigation the petitioner was afforded full opportunity to put forward his point of view and to present his defence; that pendency of civil litigation is no bar to criminal proceedings and both the proceedings can be carried out simultaneously; that scope of investigation cannot be restricted or confined to a particular individual as the investigation is always carried out in offence(s) and not against a particular offender.
I have heard Ch. Muhammad Aslam Sandhu, Advocate for the learned counsel for the petitioner, Ch. Aamir Rehman Addl. Advocate-General assisted by Mr. Tanvir Ahmad Shami, Advocate for the State and record brought by Tariq Mehmood Deputy Director (Investigation) and Hassan Raza, Assistant Director, ACE Gujranwala, has also been perused.
In order to appreciate the arguments and the pleas raised on behalf of the petitioner, a factual inquiry needs to be undertaken, which cannot be done by this Court while seized of a constitutional petition. I subscribe to the view expressed by the learned Additional Advocate-General that the petitioner has failed to show any prejudice having been caused to him on account of reinvestigation in case FIR No. 147/1995. It is now well-settled that multiple investigations can be carried out in a criminal case even after submission of the report under Section 173 Cr.P.C., and a fresh challan could also be submitted. Reference can profitably be made to "Muhammad Yousaf vs. The State and others" (2000 SCMR 453), "Syed Waqar Hussain Shah vs. The State, (PLD 1988 Lahore 666), and "Safia Begum vs. S.H.O. Police Station Garh Maharaja, District Jhang and 3 others" (1993 P.Cr.L.J. 97). Even otherwise it has been noticed that in W.P. No. 14817/2005 filed by none other than the petitioner himself, the order of the learned Ombudsman, which has now been impugned in this constitutional petition had come under discussion and this Court had directed the Anti-Corruption Establishment to reinvestigate the matter fairly and objectively. It is too late for the petitioner in the day to file the instant petition after more than six months of the disposal of the said Writ Petition No. 14817/2005.
There is no substance in the argument of the learned counsel for the petitioner that criminal action cannot continue in the presence of a civil suit. Criminal proceedings are not barred in the presence of civil proceedings and civil and criminal proceedings could be continued or proceeded with simultaneously. Reference may be made to Ahmed Saeed versus The State and another (1996 SCMR 186), Talib Hussain versus Anar Gul Khan and 4 others (1993 SCMR 2177) and the Deputy Inspector-General of Police, Lahore and others versus Anis-ur-Rehman Khan, (PLD 1985 SC 134).
The petitioner has failed to point out any illegality in the order passed by the learned Ombudsman. In the case of "Union of India and another Appellants vs. M/S Jesus Sales Corporation, Respondent". (AIR 1996 SC 1509)" it was held that requirement of an opportunity to be heard before adverse order is passed does not in all situations means giving of personal hearing.
I find no merit in this writ petition, which is accordingly dismissed.
(M. Ajmal Rana) Petition dismissed.
PLJ 2006 Lahore 1092 (DB)
Present : Muhammad Muzammal Khan and Sayed Sajjad Hussain Shah, JJ.
M/s. AL-UMAR FABRICS & 2 others--Appellants
versus
HABIB BANK LIMITED through its General Attorney/Manager--Respondent
R.F.A. Nos. 128 and 129 of 2005, heard on 24.5.2006.
(i) Financial Institution (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----Ss. 7(4) & 9--Specific Relief Act, (1 of 1877), S. 56--Civil Procedure Code, (V of 1908), S. 96--Bank filed suit for return of loan against appellants--Appellant filed declaratory suit against bank challenging demand notice requiring payment of suit--Both filed leave to appear/defend in respective suits--Leave to appear/defend of bank was granted, treated as written statement as suit for appellant was dismissed--Leave to appear/defend of appellants was declared and the suit of bank decreed--Assailed--Validity--Appellant allowed encashment of cheques in order to liquidate outstanding liability with a mala fide intention, attempted to refute repayment of finance facility availed by him--Appellant had been operating his loan account right regarding unauthorized release of specified amount was ever raised--Appellants failed to make out any plausible defence requiring trial of the suit, after recording evidence--Petition for leave to appeal/defend the suit dismissed and was rightly declined by Banking Court--Encashment of two cheques from current account of appellant inspite of stoppage of payment was not a dispute arising out of finance facility, thus was not covered by Section 7(4)--Controversy put to rest by trial Court without committing any error of law--Appeals dismissed. [Pp. 1096 & 1097] A, B, D, E & F
(ii) Financial Institution (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 7(4)--Jurisdiction of--Held--Banking Court, entertain, adjudicate and decide disputes by deserving their jurisdiction from Section 7(4) of the Finance Ordinance, 2001, regarding matters arising out of disputes, covered by the Ordinance. [Pp. 1096 & 1097] C
Mr. Shahid Ikram Siddiqui, Advocate for Appellants.
Mr. Nisar Ahmed Nisar, Advocate for Respondent.
Date of hearing: 24.5.2006.
Judgment
Muhammad Muzammal Khan, J.--This judgment proposes to decide two Regular First Appeals, one in hand and the other RFA No. 129 of 2005, as both these are between the same parties, raise similar questions of law/facts and are directed against consolidated judgment/decree dated 16.2.2005 passed by the one and the same trial/Banking Court. Instant Regular First Appeal assailed the judgment/decree dated 16.2.2005 passed by the Banking Court No. 1 Faisalabad, whereby suit of respondent-bank was decreed for an amount of Rs. 83,73,557/- alongwith costs of the suit and of funds, whereas, the other appeal challenged the decree of even date, whereby suit for declaration filed by Appellant No. 1 was dismissed.
Appellants being defendants, after service of notice by the Banking Court, filed their application seeking leave to appear and defend the suit wherein they denied their liability to pay Rs. 5.00 million which according to them were not disbursed by the Bank, besides disputing the amount of mark-up charged.
Respondent Bank being defendant in the suit, contested the same by filing petition for leave to appear/defend the suit. It was allowed and the same was converted into written statement. The main defence of the bank was that Rs. 5.00 Million were released on instruction by Appellant No. 1 on the basis of written request dated 16.9.2002.
As a matter of fact, stance taken by the Appellant No. 1 in its suit, was recapitulated in the leave petition filed by it to the recovery suit by the Bank and similar was the position with respect to suit by the Appellant No. 1 wherein the Bank had taken defence as per details in its plaint. The learned Presiding Officer of the Banking Court cognizant of both the suits, after hearing the parties, granted the bank the leave prayed and petition in this behalf was treated as written statement but the suit was held to be of or civil nature, barred by Section 56 of the Specific Relief Act and was accordingly dismissed. Appellants were declined leave to defend the suit of the Bank and the said Court, decreed the suit of the respondent-bank to the turn of Rs. 69,85,219/- with mark up of Rs. 13,88,338/- with costs of suit/funds, from the date of default till the final realization of the decretal amount with mark up for this period but liquidated damages were declined vide consolidated judgment/decrees dated 16.2.2005. Appellants were declined to liquidate the decretal amount within 30 days jointly and severally whereafter, the decree was ordered to be executed. The appellants, thereafter, filed two distinct appeals, one against the decree in favour of the respondent and the other (RFA No. 129-2005) against the decree of dismissal of suit by Appellant No. 1. Respondent in response to notice by this Court has appeared and was represented through its counsel.
The appellants under the order 26.4.2006 by this Court on C.M.1 of 2005 had deposited an amount of Rs. 25,00,000/- in addition to their earlier deposit of Rs. 10,00,000/- and they offered to deposit the remaining decretal amount after exclusion of amount of mark up within a period of three months, as according to them they were not liable to pay the un-agreed mark up of Rs. 13,88,338/- but this offer was not acceptable to the learned counsel for the bank where-upon, we heard the learned counsel for the parties and examined the record, requisitioned from the trial Court, with the assistance of the learned counsel for the parties.
Learned counsel for the appellants primarily advanced three fold submissions while attacking the impugned judgment/decree and his first submission was that bank without producing finance agreement before the Banking Court, could not succeed in its suit for recovery of the decretal amount and that the claimed finance facility of Rs. 7.00 million was not released for the utilization of the appellants, as a major part of Rs. 5.00 million was misappropriated by the bank functionaries under the garb of payment of two cheques, payment of which had already been stopped by the Appellant No. 1, besides the fact that bank, could not claim markup beyond the agreed period and entry of amount of Rs. 13,88,338/- to this effect in the bank account statement was not warranted. Though submissions of the learned counsel for the appellants were self contradictory, yet was proceed to examine those in light of the material on record. Appellant No. 1 had himself filed a suit for declaration with the allegations already detailed in the factual part of this judgment, wherein sanctioning of finance facility in favour of Appellant No. 1 was admitted. Likewise this fact was not denied by the appellants in their petition for leave to appear and defend the suit. In view of this admitted factual position, there was no necessity of producing the finance agreement but inspite of it we have examined the same and our examination is that on 6.9.2002 respondent bank sanctioned finance facility to the tune of Rs. 7.00 million. Paragraph 1 of the finance agreement, which was on markup basis, reads as under:
"The bank confirms having bought the Goods from the customer, prior to the execution of this agreement for a sum of Rs. 7.000 M. (Rupees Seven Million only). The price to be paid by the bank to the Customer (hereinafter referred to as the "Sale Price") shall be made available for utilization by the customer by withdrawal from its/their/his Account No. __________ with the bank and such withdrawal(s) from time to time shall constitute payment of the sale price for the purpose of the agreement for financing on mark-up basis."
Besides the above reproduced clause of the finance agreement bank retained right to reduce sale price and if the customer was dissatisfied with the deduction, he was to deposit/pay the differential amount immediately, in addition to which, bank was given right to demand immediate repayment of purchase price. As per para 9 of the agreement, bank was conferred right to cancel facility advanced without assigning any reason and demand immediate payment of the purchase price. Customer undertook to repay the same within seven days of the demand, besides payment of cost of funds as certified by the State Bank of Pakistan calculated on the outstanding purchase price, until payment thereof. Besides admission of the appellants in Para No. 5 of their PLA, the terms of agreement clearly proved liability of the customer to pay the charged amount of markup till its recovery thus the markup amount of Rs. 13,88,338/- was not opposed to the agreement.
Stance of Appellant No. 1 in his suit for declaration and petition for leave to appear/defend the suit of the bank was that finance facility was sanctioned for an amount of Rs. 7.00 million out of which Rs. 5.00 million was wrongly encashed in the name of one Ijaz Ahmed in violation of instructions to the bank, as customer's four cheques had been misplaced, thus no payment thereagainst be made. Respondent bank had acknowledged receipt of instructions about stopping of payment of cheques through their letter dated 11.9.2002, with the wording mainly, "your instructions have been noted in our books and all due care will be taken but the bank cannot hold itself responsible should the stop payment instructions be overlooked through pressure in business or through inadvertence, accidental mistake or otherwise. Attention in this respect is also invited to current account Rule 6". Respondent bank absolved itself from the liability in case any of the cheques under "stop payment" is encashed. The Banking Court has correctly remarked that allegedly misplaced cheques were not torn in seriatim and were removed from the cheque book by leaving certain cheques intact in between, which created serious doubt about denial of liability by the appellants. We also contribute to the view of the learned Presiding Officer of the Banking Court that cheque book is always in possession of the account holder and as per instructions on the reverse of the cheque book, the same had to be placed in safe custody. Above all, cheques in question were undisputedly encashed from the current account of Appellant No. 2 wherein the sanctioned loan amount was got transferred thus dispute did not relate to the account of the running finance.
Record revealed that on complaint of Appellant No. 2 a criminal case vide FIR No. 138 dated 2.7.2003 under Sections 420, 468, 471, 406, 409 PPC was registered against the bank employees with Police Station Rail Bazar Failsalabad for unauthorized release of an amount of Rs. 5.00 million against the two cheques payment of which had been stopped. Criminal case and bank's stance of encashment of the said cheques under the instructions of Appellant No. 2 was enquired by the police as well as NAB authorities and all the investigating agencies exonerated the bank employees including the Manager for the allegation of fraud etc. levelled by Appellant No. 2 whose stance was found to be fake. Ijaz Ahmed Malik in whose favour the said cheques were encashed, in his bail petition under FIR No. 138 dated 2.7.2003 had pleaded that the cheques encashed in his name were given to him by Maqsood Ahmed Appellant No. 2. Bail petition of Ijaz Ahmed Malik is available with the petition for leave to appear/defend filed by the appellants. As a matter of fact, Appellant No. 2 himself allowed encashment of cheques vide his letter dated 16.9.2002 in order to liquidate his outstanding liability against Ijaz Ahmad Malik but subsequently with a mala fide intention, attempted to refute repayment of finance facility availed by him. Respondent bank in the first instance, had not accepted responsibility in case any of the above referred cheques was encashed and in the second place, those were encashed under the instructions of Appellant No. 2 and thirdly, released payment of the cross cheques was made from current account of Appellant No. 2 to which advance amount had been transferred. It goes without noticing that Appellant No. 2 had been operating his loan account right from 16.9.2002 to 7.6.2003 and during this period no objection regarding unauthorized release of Rs. 5.00 million was ever raised. All this leads us to conclude that appellants failed to make out any plausible defence requiring trial of the suit, after recording of evidence and consequently their petition for leave to appear/defend the suit deserved dismissal and was rightly declined by the Banking Court. As regards suit by Appellant No. 1, controversy convassed therein was to be settled on appellant's petition for leave to appear/defend the suit filed by the bank, thus cognizance of such suit being prohibited by Section 56 of the Specific Relief Act was rightly refused to be independently adjudicated upon. Besides, it, Appellant No. 1 had not only admitted sanctioning of finance facility in its favour in the plaint, which was also accepted in its petition for leave to appear/defend the suit but was also admitted in para. 4 of the memorandum of appeal before this Court. Banking Courts entertain, adjudicate and decide disputes by deriving their jurisdiction from Section 7(4) of the Finance Ordinance, 2001, regarding matters arising out of disputes covered by the said Ordinance. Encashment of two cheques of Rs. 5,00 million from current account of Appellant No. 2 inspite of stoppage of payment was not a dispute arising out of finance facility, thus was not covered by Section 7(4) of the Ordinance (ibid). Section 9 of this Ordinance further strengthened the plea that suit filed by the Appellant No. 1 was not triable by the Banking Court and was aptly dismissed. Be that as it may, on the basis of findings in the forgoing paragraphs, plea of Appellant No. 1 of unauthorized encashment of those cheques was in form of set of which could not be raised in recovery suit under the Ordinance, 2001, especially earlier to filing of written statement. Scan of record and impugned judgment revealed that controversy put to rest by the trial Court without committing any error of law.
For the reasons noted above, no case for interference in any of the two appeals could be made out and consequently the same being without any merit, are dismissed with no order as to costs.
(M. Ajmal Rana) Appeal dismissed.
PLJ 2006 Lahore 1097
Present: Muhammad Muzammal Khan, J.
INAYAT ULLAH--Petitioner
versus
Mst. BEGUM BIBI and another--Respondents
Civil Revision No. 1292 of 2000, heard on 20.1.2006.
(i) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Perform "Talb-i-Muwathibat"--When the pre-emptor gained knowledge of the sale but not earlier--Evidence proved that the petitioner did not perform any of the required talabs at relevant time and evidence produced by him was subsequently manoeuvred. [P. 1100] A
(ii) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Ss. 75 & 76--Primary evidence--Proof of--Held: Notice could be proved to produce the original notices which were served by them by notice to produce documents--Petitioner was under obligation to move to trial Court for permission to record secondary evidence without bringing on record the original documents and without seeking permission to read secondary evidence, notice of Talb-i-Ishhad would not have been assumed to prove--Revision dismissed. [P. 1100] B
Syed Iftikhar Hussain Shah, Advocate for Petitioner.
Sheikh Naveed Shaharyar, Advocate for Respondents.
Date of hearing : 20.1.2006.
Judgment
Instant civil revision assailed the appellate judgment/decree dated 17.1.2000 passed by the learned Additional District Judge Gujrat, whereby appeal of Respondent No. 1 was accepted and the suit for possession through pre-emption filed by the petitioner was dismissed, with costs.
Succinctly, relevant facts are that one Allah Ditta husband of Respondent No. 1 being owner of 34 kanals 4 marlas of land gifted the same in favour of his wife (Respondent No. 1) through Mutation No. 6325 dated 29.3.1997. Petitioner asserting himself to be a co-sharer in the khata from where the land was alienated, filed a suit for possession through pre-emption, claiming that suit property was in fact sold for a consideration of Rs. 50,000/-- but the same was disguised as gift in order to defeat his pre-emptive right. Petitioner further pleaded that he came to know of the sale on 7.5.1997 at 10.00 a.m. when he was sitting in his house by one Barkat Ali, in presence of the named witnesses when he instantly exclaimed his intention of pre-empting the sale as his right was superior qua Respondent No. 1. According to him, he performed "Talb-i-Ishhad" by sending notice on 19.5.1997 attested by two truthful witnesses and thereafter, fulfilled the requirements of "Talb-I-Khasumat" by filing the suit. In support of claim of decree for possession through pre-emption the petitioner asserted his right being "Shafi Sharik". Petitioner further averred that Respondent No. 2 was nephew of Respondent No. 1 who purchased the property and got it transferred "Banami" in the name of his real paternal Aunt (Respondent No. 1).
Respondents being defendants in the suit, contested the same by filing their written statement wherein besides certain preliminary objections, it was asserted that husband of Respondent No. 1 gifted the suit land which was not sale subject to law of pre-emption. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge who was seized of the suit, on the basis of his appraisal of evidence, decreed the same vide his judgment/decree dated 29.6.1999, fixing consideration as Rs. 1,00,000/- which was directed to be deposited within 15 days, failing which suit of the petitioner was to be dismissed.
Respondent No. 1 aggrieved of the judgment/decree dated 29.6.1999, filed an appeal before the learned Additional District Judge, where she succeeded as her appeal was accepted and the suit of the petitioner was dismissed by reversing judgment/decree of the trial Court vide appellate judgment/decree dated 17.1.2000. Petitioner thereafter, filed instant revision petition for adjustment of the appellate judgment/decree. Respondents in response to notice by this Court appeared and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Petitioner's suit was decreed by trial Curt treating the gift as sale, for the sole reason that donor, the husband, was of 54 years of age whereas the donee wife (Respondent No. 1), was of 87 years of age but these findings were rightly reversed by the appellate Court, being unreasonable. After scan of evidence on the file I am not ready to contribute to the view taken by the trial Court for multiple reasons. On the fist hand, it is un-disputed that Respondent No. 1 is a housewife with no source of income to purchase the suit property and that too, from her husband. Petitioner who had claimed the alienation as sale was under legal obligation to prove that it was not a gift and as a matter of fact, was sale but he brought not an iota of evidence on the file to this effect. Petitioner though impleaded nephew of Respondent No. 1 to the suit but could not prove that he financed the transaction or that, as to why he would have purchased the suit land "Banami" in the name of wife of the vendor, whose he was not the sole heir. On the other hand, it is admitted between the parties that both the parties of the gift being husband and wife, had no issue. Husband was younger to his wife but was sick. He foreseeing that in case of his death, Respondent No. 1 will only get her "Sharai Share" and there being her no other source of income, he decided to gift his property in the name of his wife, as owner. To my mind, gift by an owner in the name of his wife, could not have been dubbed as a sale merely on the basis of difference of age of the spouses, which as a matter of fact was a gunuine cause for affecting the gift.
Petitioner though examined Allah Ditta PW. 4 and Khalas Khan Lumberdar as PW. 5 to prove that transaction reflected in the mutation was a sale but none of these witnesses deposed to have witnessed the bargain of sale and at the same time none of them informed the Revenue Officer or raised any objection at the time of sanctioning of mutation that the transaction has wrongly coloured as gift. Appellate Court, correctly remarked that PW. 5 was not an ordinary witness as he being a Lumberdar, knew procedure of sanctioning of mutations but acted with malice and dishonestly while in the witness box in order to benefit the petitioner, out of the way. PW-5 stated that he came to know about the real nature of the transaction after 8/10- days of sanctioning of mutation but even at that time, he did not move any application/complaint before any concerned officer to the effect that mutation had wrongly been got sanctioned. Even if, it is assumed that stance of the petitioner was justified that suit land was in fact purchased by Respondent No. 2 but was got transferred in the name of Respondent No. 1 "Bainami" even in that eventuality, the petitioner did not bring any evidence on the file to show that how the transaction was "Banami" as title/possession of the suit land remained with Respondent No. 1. There is no evidence on the file that in case of death of Respondent No. 1 shall will be succeeded exclusively by Respondent No. 2. Pre-requisites required to be proved by the persons alleging "Banami" transaction as per judgment in the case of Alif Khan versus Mst. Mumtaz Begum and another (1998 SCMR 2124) were neither made out nor petitioner could prove those on the file.
Gift mutation was sanctioned in favour of Respondent No. 1 on 29.3.1997 and its knowledge by the petitioner was pleaded as on 7.5.1997. "Talb-i-Muwathibit" was to be performed instantly on gaining of knowledge of the sale but petitioner while in witness box as PW. 1 during the cross-examination admitted that he after 4/5 months from coming to know of the sale, got copies of the revenue record from the patwari and straight went to the lawyer for issuance of notice of "Talb-i-Ishhad", this shows that the petitioner after knowledge of the sale remained silent for about 4/5 months and did not perform either "Talb-i-Muwathibit" or "Talb-i-Ishhad", within the time prescribed by Section 13 of the Punjab Pre-emption Act, 1991. Similarly, PW-2 Muhammad Shafi is the informer of the petitioner, about the sale who admitted in the cross-examination that when he came to know about the sale, the mutation had not been sanctioned. He further deposed that on the day of gaining of knowledge of sale he conveyed the information to the petitioner, the same day, as per deposition of PW-2, the petitioner if had performed "Talb-i-Muwathibit", the same was done prior to completion/ attestation of sale if any, whereas Section 13(1) of the Punjab Pre-emption Act, 1991 made it obligatory to perform "Talb-i-Muwathibit" when the pre-emptor gained knowledge of the "Sale", in the sitting/meeting where he got such information and not earlier. Scan of evidence on the file proved that the petitioner did not perform any of the required talbs, at relevant time and evidence produced by him was subsequently manoeuvred.
Original notice of "Talb-i-Ishhad" allegedly remitted to the respondents was not brought on the file and instead copies of those were produced by PW-2 as Ex. P. 1 and Ex. P. 2. Though these copies did not come on the file from proper custody, as PW-2 was only a witness of these notices yet those were not proved in accordance with law and were not confronted to the other witness i.e. Barkat Ali PW-3, because respondents had denied receipt of those notices in their written statement. Law regarding proof of private documents as enunciated by Article 75 of the Qanoon-e-Shahadat Order 1984 is firmly settled by this time. Notice Ex. P1 and Ex.P.2 could be proved by requiring the respondents to produce the original notices which were said to have been served by them, by notice to produce documents. Had such notice been given to the respondents and on their refusal to produce those notices, petitioner was under obligation to move to the trial Court for permission to lead secondary evidence in terms of Article 76 of the Qanoon-e-Shahadat Order 1984, but no such exercise was undertaken. This Court had consistently held that without bringing on record the original documents and without seeking permission to lead secondary evidence, notice of "Talb-i-Ishhad" will not be assumed to have been proved. In support of this proposition, reference can be made to the judgments in the case of Mst. Ameer Versus Soni (1997 MLD 236), Muhammad Rafique Versus Ghulam Murtaza (1998 MLD 292), Fateh Muhammad and 2 others Versus Gulsher (2000 CLC 409), Hayat Ullah Khan and others Versus Jan Alam and others (2003 MLD 625), Ghulam Abbas Versus Manzoor Ahmad and another (PLD 2000 Lahore 125) and Akhtar Nawaz etc. Versus Muhammad Nazeer etc. (NLR 2005 Civil 174). The petitioner without undertaking method of proving notice of "Talb-i-Ishhad" felt satisfied by producing photo stat copies, without confronting those to the PWs 2 and 3. I have no ambiguity that petitioner miserably failed to prove performance of "Talb-i-Muwathibit" as well as "Talb-i-Ishhad", thus his right, if any, stood extinguished in terms of Section 13 of the Punjab Pre-emption Act 1991.
For the reason noted above, the First Appellate Court, correctly concluded the lis and rightly dismissed the suit of the petitioner by holding that gift in favour of Respondent No. 1 was not sale and that petitioner failed to perform talbs in accordance with law. Appellate Court, did not commit any illegality/irregularity and its findings being in consonance with the evidence on the file, could not be interfered in revisional jurisdiction of this Court hence, this petition being devoid of any merit is dismissed, with no order as to costs.
(Fozia Fazal) Petition dismissed.
PLJ 2006 Lahore 1101 (DB)
Present: Mian Hamid Farooq and Syed Hamid Ali Shah, JJ.
MUHAMMAD KHALID--Appellant
versus
H.B.L. LTD. BRANCH MURIDKEY DISTRICT SHEIKHUPURA through its Manager and 3 others--Respondents
E.F.A. No. 89 of 2005, heard on 3.4.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 64--Transfer of attached property by judgment-debtor--Validity of transaction--Held: S. 64 of CPC prohibited a private transfer or delivery of the attached property by the judgment debtor after attachment has been made and all such transactions are void. [P. 1104] A
1991 MLD 1101.
(ii) Transfer of Property Act, 1882 (IV of 1882)--
----S. 41--Civil Procedure Code, (V of 1908), Ss. 47, 64, O. XXI, R. 58--Attachment of property in execution proceedings--Sale of such property by judgment debtor--Appellants produced property--Appellant bona fide purchase for consideration without notice--Contention of--Validity--Judgment debtor was not ostensible owner and in the capacity of real owner, sold the property to the appellants contrary to the express provision of law--Held: Appellants could not take shelter u/S. 41 of Transfer of Property Act. [P. 1105] C
1997 SCMR 315 distinguished.
(iii) Civil Procedure Code, 1908 (V of 1908)--
----S. 47--Execution of decree--Modes of--Held: A decree can be executed through any of the modes laid down in the Code of Civil Procedure. [P. 1105] D
(iv) Civil Procedure Code, 1908 (V of 1908)--
----S. 47, O.XXI, Rr. 58 & 90--Transfer of Property Act, (IV of 1882) S. 41--Execution petition--Attachment of property--Sale of property by judgment debtor to appellants--Objection petition of appellants dismissed without recording evidence--Assailed--Validity--Alleged sale transaction transfer and delivery of the property to appellants were made after attachment of the property, provisions of law, as rightly held by the Banking Court, the transfer is void--Objection, could be decided without recording evidence of the parties--Banking Court, after taking into consideration all aspects of the case, has decided the matter and the impugned order did not require any interference by High Court--Appeal dismissed. [P. 1105] B, E, F & G
2004 CLD 1586 relied.
Mr. Iftikhar Ullah Malik, Advocate for Appellant.
Sheikh Aftab Omar, Advocate for Respondent No. 1.
Respondents Nos. 2 to 4 were proceeded ex-parte, vide order dated 27.7.2005.
Date of hearing : 3.4.2006.
Judgment
Mian Hamid Farooq, J.--Present appeal proceeds against order dated 3.2.2005, whereby the learned Judge Banking Court dismissed appellants' application, filed under Section 47, Order XXI, Rule 58 CPC etc.
Precisely stated facts of the case are that Respondent No. 1's suit for recovery of Rs. 4,73,569/- was decreed, against Respondents Nos. 2 to 4, by defunct Banking Tribunal, vide judgment and decree dated 8.11.95. Pursuant thereto the execution proceedings were initiated at the behest of the decree holder bank, during which the mortgaged property could not be sold, however, the questioned property/house (constructed on Khasra No. 2808, situated at Muridkey) was attached under the orders of the learned Executing Court. The appellants, reportedly, purchased the said house from Mst. Naseem Akhtar, the judgment debtor, vide registered sale-deed dated 26.12.97 for consideration of Rs. 7,80,000/- and the Mutation No. 9860 was affected in their favour. The appellants then preferred two applications, one under Order XXI, Rule 90 CPC and other for release of the property from attachment, before the learned Judge Banking Court. The learned Executing Court set aside the auction, however, appellant's objection petition was dismissed, vide impugned order dated 3.2.2005, hence the present appeal.
Learned counsel for the appellant has raised the following contentions,--
(i) although the mortgaged property is still available for the satisfaction of the decree, yet the respondent bank is not making any effort for the sale/auction of the mortgage property and instead thereof is trying to sell the house in question with mala fide intention;
(ii) the appellants are bona fide purchasers for consideration without notice, as such entitled for protection under Section 41 of Transfer of Property Act;
(iii) learned Banking Court did not consider the documents on record, which clearly show that there was no entry regarding the attachment of the property in the revenue record;
(iv) Objection petition has been decided without recording evidence of the parties;
(v) Provisions of Order XXXIV Rule 5 CPC were not taken into consideration.
He has relied on the following judgments:--
1987 SCMR 208 (no judgment)
Ch. Muhammad Saleem vs. Fazal Ahmad and 2 others (1997 SCMR 315.
Khair Din and another vs. Mst. Zenab Bibi and 2 others (PLD 1973 Lahore 586).
Messrs State Associates vs. Messrs Farben Industrial Development (1991 CLC 424).
Conversely, the learned counsel for the respondents states that house in question was purchased by the appellants after its attachment by the executing Court, therefore, the transfer is void. He further submits that under the circumstances, the appellants could not take advantage of Section 41 of the Transfer of Property Act.
"Section 64 of Code of Civil Procedure provides that:--
"Where an attachment has been made and private transfer or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment."
In the instant case, the attachment was made on 12.3.1997. Notice u/O XXI, Rule 66 CPC was duly served and the postal receipt is dated 31.3.197. Under the aforesaid provision of law, Mst. Naseem Akhtar-Judgment debtor could not sell the property after attachment of the same in favour of the applicants. The transfer is void. In this connection, the learned counsel for the decree holder has rightly placed reliance on 1991 MLD Page 1101 wherein it was held that private alienation of the property after attachment would be void. In the circumstances, the applicants cannot take protection of Section 41 of Transfer of Property Act. It may also be observed that the decree can be executed in any of the modes laid down in the Code of Civil Procedure. In this connection, the Executing Court is not restricted to the mode of execution as mentioned in order dated 8.11.1995. The application has been filed to cause further delay in the disposal of the execution application."
Now coming to next contention of the learned counsel for the appellants, suffice it to say that under the present set of circumstances, provision of Section 41 of Transfer of Property Act are not attracted. Even essentials of Section 41 of Transfer of Property Act, as laid down in the case of Ch. Muhammad Saleem (ibid) relied upon by the learned counsel for the appellants, are not attracted in the present case, inasmuch as Mst. Naseem Akthar was not ostensible owner and she, in the capacity of real owner, sold the property to the appellants contrary to the express provisions of law. Under the circumstances, we are of the view that the appellants cannot take shelter under Section 41 of the Transfer of Property Act.
Learned counsel for the appellants could not point out any provision of law or case law to support his plea that when the mortgaged property is available, then the decree holder is bound, under the law, to firstly sell that property and thereafter to recover the decretal amount from the rest of the properties of the judgment debtor. There is no cavil with the proposition that a decree can be executed through any of the modes laid down in the Code of Civil Procedure.
As regards decision of the objection petition without recording evidence of the parties. We feel that this was a fit case, wherein objections could be decide without recording evidence of the parties. It has been held in the case of Frasat Jabeen vs. United Bank Ltd. through Manager and 2 others (2004 CLD 1586) that Executing Court is under no obligation to mechanically record evidence of the objector in each and every cash, however, it has to see in individual cases as to whether the objection petition could be decided without recording of evidence. In this case, we find that the learned Judge Banking Court has rightly decided the matter without recording evidence.
As regards judgments relied upon by the learned counsel for the appellants, suffice it to say that there possibly cannot be any cavil with the principles of law decided in the said judgment, however, those are not applicable in the present case.
In the above perspective, we have examined the impugned order and find that the learned Judge Banking Court, after taking into consideration all the aspects of the case, has decided the matter and the impugned order does not require any interference by this Court.
Upshot of the above discussion is that the present appeal is devoid of merits, hence the same stands dismissed with no order as to costs.
(M. Ajmal Rana) Appeal dismissed.
PLJ 2006 Lahore 1106 [Multan Bench Multan]
Present: Fazal-e-Miran Chauhan, J.
Mst. PARVEEN BIBI--Petitioner
versus
S.H.O. P.S. MACHI WALA, DISTT. VEHARI and 4 others--Respondents
W.P. No. 1474 of 2006, decided on 20.4.2006.
(i) Administration of Justice--
----Courts are emblem of dignity and to protect the rights of citizens and to maintain the scale of justice, which had been enshrined in the Constitution as well as Quran. [P. 1109] F
Para 27, Sooray Rehman relied.
(ii) Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 22-A & 154--Constitution of Pakistan, 1973, Art. 199--Registration of criminal case--Order passed by Justice of Peace did not complies with--Jurisdiction--Petitioner has been running from pillor to post to get justice from the Courts but the respondents/police officials manipulated and polluted the atmosphere in a perfidious manner and in order to quench their demonic thrust and avarice created hurdle in the way of the petitioner not to get her relief from the Court--Application was submitted by the petitioner but the S.H.O. concerned did not register FIR, because the accused, nominated in the application, were the police officials, of the his police station--Negligence on the part of the police is established and they have misused their power--Petition was accepted with costs and S.H.O. directed to register the case. [Pp. 1108 & 1109] B, D, E & G
(iii) Criminal Procedure Code, 1898 (V of 1898)--
----S. 154--Cognizance offence--Commission of--Duty of S.H.O.--Held: Statutory duty of the S.H.O. to register as case under Section 154 Cr.P.C. on the receipt of information of commission of cognizable offence. [P. 1108] C
(iv) Obiter Dictum--
----Organ of state, which meant to safe guard the rights of the people and to protect the life, liberty and however of the people; is not performing its duty in accordance with law. [P. 1108] A
Mr. Nadeem Ahmad Tarrar, Advocate for Petitioner.
Mr. Muhammad Qasim Khan, Assistant Advocate-General for Respondents.
Azam Bajwa, Inspector/S.H.O. Machi Wal. Muhammad Aslam St. P.S. Machi Wal.
Shahid Farooq, St, and Wajid Zubair, A.S.I. Patrolling Police, Ratta Tibba.
Date of hearing : 20.4.2006.
Order
By filing the instant writ petition, the petitioner has sought a direction in the name of Respondent No. 1 S.H.O., Police Station, Machi Wal, District Vehari to register the case against the accused/Respondents Nos. 2 to 5.
The petitioner moved an application under Section 22-A of the Cr.P.C. on 24.2.2006, for registration of case against the said respondents before Justice of Peace, Vehari wherein the learned Presiding Officer directed the petitioner to appear before Respondent No. 1, who shall hear the petitioner, record her version and proceed strictly in accordance with law.
During the pendency of the said petition, on 27.2.2006, at about 10.15 p.m., the accused/Respondents Nos. 2 to 7, in civil Uniform, while armed lethal weapons, scaled over the wall of the house of the petitioner and gave severe beating to the women-folk, whereas, during this period, on raising hue and cry, the patrolling police was called, who came at the spot. The said patrolling police informed the S.H.O, Police Station, Machi Wal about the occurrence and also informed him that some Police Officials of his Police Station were creating panic and terror, so they might be refrained to sabotage the public piece and tranquility. The said S.H.O. instead of taking any legal action against the said Police Officials of his Police Station, left the place of occurrence, while threatening the petitioner and inhabitants of the locality with the sinister device that in case any person speaked about the said occurrence, would face the music.
Vide order dated 3.4.2006, report was called for from the S.H.O, Police Station, Machi Wali with the direction to submit report & parawise comments within a week, but, he did not comply with the said order. On 12.4.2006, for non-compliance of the order of this Court, show-cause notice was issued to the said S.H.O, to explain as to why contempt proceedings be not initiated against him for not complying with the order of this Court and to appear for today to explain his position.
Azam Bajwa, Inspector/S.H.O, Police Station, Machi Wal, present in Court, submits that he did not willfully disobey the order of this Court as he was feeling pain in his kidney, so that the needful could not be.
In view of the explanation put forth for non-compliance of order of this Court, show-cause notice issued to the said S.H.O, in Criminal Original No. 99-W of 2006, is hereby withdrawn. Criminal original stands disposed of.
Shahid Farooq, S.I., Incharge Patrolling Police, P.H.P, Post Ratta Tibba, District Vehari has submitted his report, wherein he endorsed the occurrence. Wajid Zubair A.S.I, present in Court, states that he visited the spot and found one person in civil dress holding police wireless alongwith 2/3 police officials. He inquired about his identification, whereupon, he disclosed that he is A.S.I. of Police Station, Machi Wal and he alongwith Police Officials came over here and whereas, the people of the locality has encircled them, so that they are in a position to communicate with their Police Station, hence, the same may be done in order to facilitate them. Thereafter, he came back with the presumption that the local police had reached the spot, so their presence, at the spot, was not necessary.
On Court's query, learned AAG states that not only, the police officials disobeyed the order of this Court but also misused their official power and are liable to be dealt with strictly in accordance with law.
Learned counsel for the petitioner states that the said S.H.O. firstly did not comply with the order passed by Justice of Peace, Vehari in order to save the police officials, who caused harassment and threatened the petitioner and her family on the day of occurrence, so, they are liable to be dealt with in accordance with law. Further states that the petitioner and her family had suffered at the hands of the police officials. The petitioner had been deprived of her valuable money and was humiliated. The police officials outraged the modesty of the ladies, therefor, they had violated the right guarantees by the Constitution and they are liable to be dealt with strictly in accordance with law. Their matter may be referred to the concerned District Police Officer for taking disciplinary action against them and they further be not posted in any Police Station in future, so that they further may not undermine the dignity of the apex Court as well as not to abominate towards humanity.
It is a poor state of affairs that the organ of State, which is meant to save guard the rights of the people and to protect the life, liberty and honour of the people; is not performing its duty is accordance with law. As the petitioner has been running from pillar to post to get justice from the Courts, but the respondents/police officials manipulated and polluted the atmosphere in a perfidious manner and in order to quench their demonic thrust and avarice created hurdle in the way of the petitioner not to get her relief from the Court.
It is the statutory duty of the S.H.O. to register a case under Section 154 Cr.P.C. on the receipt of information of commission of cognizable offence. He disobeyed the order of Justice of Peace, when he was directed to register the F.I.R. after receiving the application from the petitioner. It is also established on record that the application was submitted by the petitioner but the S.H.O concerned has not registered the F.I.R,. simply because the accused, nominated in the application, were the police officials of his Police Station.
From the facts and circumstances of the case, the negligence on the part of the police is established and they have misused their powers, so the Courts are emblem of dignity and to protect the rights of the citizens and to maintain the scale of justice, which has been enshrined in Constitution as well as Quran in Para-27, Sooray Rehman, "To maintain the scale and not to deprive the people from the right in all conditions".
In this view of the matter, this writ petition is allowed with costs. The S.H.O, Police Station, Machi Wal (Respondent No. 1) is directed to register the F.I.R. under Section 154 Cr.P.C.. against the accused/ Respondents Nos. 2 to 5 and proceed strictly in accordance with law; to conclude the investigation within fifteen days and submit his report to the concerned District Police Officer as well as the Deputy Registrar (Judl) of this Court. It is further ordered that the S.H.O, Police Station, Machi Wal is responsible for the misery of the petitioner, therefore, he is burdened with costs throughout and shall pay the same to the petitioner in accordance with law. The learned counsel for the petitioner is directed to submit memo of costs in the office accordingly. Copy of this order be sent to the District Police Officer, Vehari for necessary action.
(M. Ajmal Rana) Petition allowed
PLJ 2006 Lahore 1109 [Rawalpindi Bench Rawalpindi]
Present: Muhammad Jehangir Arshad, J.
KANWAR ABDUL HAYEE--Petitioner
versus
RENT CONTROLLER RAWALPINDI CANTT. and another--Respondents
W.P. No. 895 of 2006, decided on 5.4.2006.
Cantonment Rent Restriction Act, 1963 (XI of 1963)--
----Ss. 2 & 8--Constitution of Pakistan, 1973, Art. 199--Ejectment petition--Application for summoning a witness was dismissed--Assailed--Landlord did not require that landlord should be owner of property--Only requirement for becoming landlord is that he should be entitled to receive rent in respect of any building on this own account or on behalf of any other persons--Question whether respondent has got any title in the property other than landlord, is not within the purview of Cantonment Rent Restriction Act, 1963 nor Rent Controller has any jurisdiction to determine the same except existence of relationship of landlord and tenant--Impugned order being of interim nature, petition is not maintainable. [P. 1111] A & B
Mr. Sardar Muhammad Ghazi, Advocate for Petitioner.
Date of hearing : 5.4.2006
Order
The petitioner who is facing ejectment proceedings before the learned Rent Controller, Rawalpindi Cantt in Ejection Petition titled "Sajjad Ahmad versus Kanwar Abdul Hayee", is aggrieved of the order dated 20.3.2006 passed by learned Rent Controller whereby petitioner's application for summoning a witness alongwith record from the office of M.E.O. Rawalpindi, was turned down.
ISSUES:
Whether their exist a relationship of landlord and tenant between the parties ? OPP.
Relief.
The Respondent No. 2 concluded his evidence on 27.2.2006 and hearing was adjourned to 11.3.2006 for evidence of the petitioner when the learned Presiding Officer was on leave, hence the Ejectment Petition was adjourned to 20.3.2006 and on 20.3.2006 instead of producing his evidence the petitioner filed an application praying for summoning of witnesses (Record Keepers) from the office of M.E.O. Rawalpindi alongwith record of the disputed property to show that the ownership of the said property had not been transferred in favour of Sajjad Ahmad so far. This application of the petitioner was turned down by the learned Rent Controller through the impugned order dated 20.3.2006.
The learned counsel for the petitioner has argued that as the property in dispute has not been transferred in favour of Sajjad Ahmad Respondent No. 2 by the Government of Pakistan, hence he had no locus standi to file the Ejectment Petition nor he can be termed as landlord of the same.
The above contention of learned counsel for the petitioner is not sustainable in view of the definition of word "landlord" given in Section 2(g) of Cantonment Rent Restriction Act, 1963, which reads as under:--
"Landlord" means any person for the time being entitled to receive rent in respect of any building whether on his own account or on behalf or for the benefit of any other person,.............."
The above definition of "landlord" does not require that landlord should be owner of the property or should be holding some leasehold rights, etc. The only qualification for becoming landlord in view of the above definition is that he should be entitled to receive rent in respect of any building whether on his own account or on behalf or for the benefit of any other person, etc.
(T.S. Faisal) Petition dismissed.
PLJ 2006 Lahore 1111
Present: Muhammad Muzammal Khan, J.
MEHTAB RAZA--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, JHANG and 2 others--Respondents
W.P. No. 200 of 2006, heard on 26.6.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 105, O. XLI, R. 27--Constitution of Pakistan, 1973, Art. 199--Suit for Jactitation of marriage--Dismissed of--Assailed--Acceptance of--Writ petition against--Respondent had moved an application for permission to produce her Nikahnama which was dismissed by trial Court--Necessity of production of additional evidence was felt by Appellate Court--No injustice has been done to petitioner through impugned order, whereas controversy could not be put to rest without permitting respondent to produce evidence with regard to her earlier nikah--Evidence sought to be produced by respondent was necessary for fair decision between parties--Petitioner has been given right of rebuttal by appellate Court and if he, that Nikahnama of respondent was not genuine, he would be given right of leading evidence in support thereof--petition dismissed. [P. 1113] A & B
Mr. Munir Ahmad Khan Zai, Advocate for Petitioner.
Mr. Sarfraz Hussain Gillani, Advocate for Respondents.
Date of hearing : 26.6.2006.
Judgment
Instant Constitutional petition challenged remand order dated 10.12.2005 passed by the learned Additional District Judge, Jhang, to be declared illegal, void and of no legal consequence, whereby appeal filed by Respondent No. 3 was accepted and case was remanded to the learned Judge Family Court for fresh decision after recording of further evidence.
Succinctly, relevant facts are that Respondent No. 3 (Mst. Shehla Bibi) filed a suit for jectitation of marriage against the petitioner averring that she was married with one Ghulam Abbas and has been performing her martial obligations but petitioner falsely pretended that she is his legally wedded wife on the basis of oral Nikah, in presence of the witnesses. Respondent No. 3 further averred that she could not enter into any tie of marriage with the petitioner and as a matter of fact, she never become his wife, thus prayed for jectitation.
Petitioner being defendant in the suit, contested the same by filing his written statement and emphasized that Respondent No. 3 was his wife. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. After examination of PW-1 and PW. 2, Respondent No. 3 got recorded her own statement and closed her evidence on 6.11.2004. Petitioner also produced four witnesses and closed his evidence. At this juncture, Respondent No. 3 filed an application praying permission to produce copy of her Nikahnama with Ghulam Abbas, which was contested by the petitioner and was ultimately dismissed by the learned Judge Family Court vide order dated 5.5.2005. Suit was ultimately decided against Respondent No. 3, as the same was dismissed by the learned Judge Family Court vide judgment/decree dated 11.5.2005.
Respondent No. 3 filed an appeal before the learned Additional District Judge and in memo of appeal she specifically urged that she was already married with Ghulam Abbas son of Umar Hayat and thus claim of the petitioner of verbal Nikah and unfounded. Learned Additional District Judge vide his judgment/decree dated 10.12.2005 accepted the appeal and remanded the case to the learned Judge Family Court, permitting the Respondent No. 3 to produce further evidence to substantiate her plea of earlier marriage with Ghulam Abbas. Petitioner being aggrieved of remand of case, filed instant Constitutional petition with the relief noted above. Respondent No. 3 in response to notice by this Court appeared and was represented through her counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Though provisions of Civil Procedure Code, 1908 were not directly applicable to the suits covered by Schedule to Muslim Family Courts Act, 1964, yet principles thereof are being adopted and applied to those proceedings. Respondents No. 3 had moved an application for permission to produce her Nikahnama with Ghulam Abbas, which was dismissed by the trial Court vide order dated 5.5.2005 and this order could have been set aside by the Court of appeal against the final judgment/decree under the principles enshrined by Section 105 CPC. Similarly, case of Respondent No. 3 from its very inception was that she was married to Ghulam Abbas son of Umar Hayat and subsequent claim of the petitioner of oral Nikah with her was fake. By borrowing general principles of Order XLI, Rule 27 CPC necessity of production of additional evidence was felt by the appellate Court, which was competent to adjudge the order dated 5.5.2005 passed by the trial Court, as well. Even otherwise, no injustice has been done to the petitioner through the impugned order, whereas controversy could not be put to rest without permitting Respondent No. 3 to produce evidence with regard to her earlier Nikah and Ghulam Abbas. Submissions of the learned counsel for the petitioner with regard to discourage of unnecessary remands by the appellate Court, have not impressed me to hold that the impugned order was unwarranted. According to my estimations, evidence sought to be produced by Respondent No. 3 was necessary for just/fair decision between the parties. Above all, petitioner has been given right of rebuttal by the appellate Court and if he in his place, feels that Nikahnama of Respondent No. 3 with Ghulam Abbas is not genuine, he will be given a right of leading evidence in support thereof.
For the reasons noted above, Respondent No. 1 corerctly concluded the lis without committing error of law. Even otherwise, lawful decision within the ambit of conferred jurisdiction, cannot be substituted on this petition, which being devoid of any merit, is dismissed with no order as to costs.
(T.S. Faisal) Petition dismissed.
PLJ 2006 Lahore 1113
Present: Sayed Zahid Hussain, J.
Mst. NAJMUN NISA--Petitioner
versus
MUHAMMAD SARWAR etc.--Respondents
C.M. No. 235-C of 2004 in C.R. No. 2612 of 2002, heard on 13.7.2006.
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Suit for pre-emption decreed--Appeal was accepted by First Appellate Court--Assailed--Testimony of two witnesses, who were present at occasion and had witnessed notice of ishhad be considered sufficient--Their depositions were confidence inspiring and believable--In order to succeed in a suit for pre-emption the pre-emptor is required to fulfill precondition of S. 13 of Punjab Pre-emption Act, 1991--Superior and preferential right of pre-emption was fully established--Judgment of appellate Court set aside, restoring judgment of trial Court--Petition accepted. [Pp. 1115 & 1116] A & B
Ch. Muhammad Yaqoob Sindhu, Advocate for Petitioner.
Rana Muhammad Sarwar, Advocate for Respondents.
Date of hearing : 13.7.2006.
Judgment
The petition was heard exparte on 3.3.2004 and was accepted vide judgment of the same date by setting aside the judgment of the appellate Court and restoring that of the trial Court.
C.M. No. 235-C/2004 was filed for setting aside of the exparte order dated 3.3.2004 and for decision of the revision petition after hearing the applicant. The reason disclosed for non-appearance on 3.3.2004, (as mentioned in the application) is the non-receipt of cause list about the fixation of the case. Notice in the application was issued to the revision petitioners. On 7.3.2005 the learned counsel for the parties arrived at a consensus that `the applicant may be heard on merits of the matter for which purpose this application and the revision petition may be adjourned to some future date.' The matter has thus been heard today.
The emphasis of the learned counsel for the applicant mainly is about the effect of statement of Arshad Mahmood PW-6 (son of the deceased preemptor/plaintiff) which according to the learned counsel has not been correctly read or appreciated in the context of issue about Talbs. It has been contended by him that the contradictions/discrepancies in the statements of Zulfiqar Ali PW-3, Ishtiaq Ahmed PW-5 and Arshad Mahmood PW-6 have escaped the notice of this Court. According to him the Talbs have to be performed strictly in accordance with the provisions of Section 13 of the Punjab Preemption Act, 1991 as interpreted by the superior Courts from time to time. Reference in this context has been made to Atiq-ur-Rehman through (Real father) and another v. Muhammad Amin (PLD 2006 SC 309) and Muhammad Yousaf v. Muhammad Rafique and others (PLD 2006 Lahore 39), which case was decided by this Court.
Contrarily the learned counsel for the petitioner/preemptor has contended that since Tariq Mahmood (the original plaintiff/preemptor) had died during the pendency of the suit, his son Arshad Mahmood had to appear as PW-6 and Abdul Aziz informant since had also died he could not be produced whereas the other two witnesses in whose presence the plaintiff/preemptor acquired knowledge of sale namely Rana Zulfiqar Ali (PW-3) and Ishtiaq Ahmed (PW-5) had appeared whose testimony supported the version of the petitioners/preemptor. According to him though the revision petition was decided ex parte yet judgment dated 3.3.2004 was passed on correct appreciation of the evidence.
"I find merit and substance in the contention of the learned counsel inasmuch as that Abdul Aziz who had brought the information about the sale of the suit property and disclosed to Tariq Mahmood deceased plaintiff were dead and both of them were not in this world. The best available evidence was produced by the petitioners/plaintiffs to establish the performance of Talbs. There was not material contradiction in the depositions of the witnesses which could be given that much weight as has been attached by the learned appellate Court."
A lot of emphasis has been laid by the learned counsel for the applicant qua the deposition of Arshad Mahmood PW-6 (son of deceased preemptor) who somehow stated that he was also present at that time when Abdul Aziz told his father about the sale. According to him such an information was given by Abdul Aziz on 1.8.1995. It may be observed that presence of Arshad Mahmood is neither mentioned in the notice of Ishad nor in the plaint. Had his father not been dead after the institution of the suit there was no possibility of appearance of Arshad Mahmood as witness. His testimony even if assumed to be discrepant has little relevance to the matter in issue. The testimony of two important witnesses i.e. Zulfiqar Ali and Ishtaiq Ahmed who were present at the occasion and had witnessed the notice of Ishad could in the circumstance when Abdul Aziz and Tariq Mahmood both were dead be considered sufficient unless of course it be shown that there statements were mutually contradictory and destructive. But it is not so, as their depositions were confidence inspiring and believable. Findings recorded by the lower appellate Court thus on Issue No. 10 were rightly reversed through judgment dated 3.3.2004. There is no cavil that in order to succeed in a suit for preemption the preemptor/plaintiff is required to fulfill the preconditions of Section 13 of the Punjab Preemption Act, 1991. That is the consistent view of the Superior Courts including the precedents cited by the learned counsel for the applicant. But in the instant case as mentioned above, sufficient evidence was produced by the petitioner/preemptor about the performance of Talbs.
"Insofar as the superior right of the plaintiffs was concerned, there was evidence of over-whelming nature to establish that the property of the petitioners/plaintiffs and the suit property comprised Khasra No. 5362/2 and were contiguous to each other. Aks Shajra Ex. P-6 gave full description and location of the site position. It was even admitted by Muhammad Yousaf DW-1, the rival pre-emptor that the property of Tariq Mahmood deceased plaintiff was contiguous to this of the suit property. Muhammad Rafique DW-2 also admitted this fact in his cross-examination. Similar was the deposition of Muhammad Saleem DW-3 and Sarfraz Ahmad Khan DW-4."
The superior and preferential right of preemption was thus fully established.
For these reasons Judgement dated 3.3.2004 whereby the revision petition was accepted by setting aside the appellate judgment and restoring that of the trial Court was according to my humble view, correct and need not be recalled as it was a fit case for the exercise of revisional jurisdiction.
The application is dismissed accordingly by reiterating judgment dated 3.3.2004. No order as to costs.
(T.S. Faisal) Application dismissed.
PLJ 2006 Lahore 1116 (DB)
Present: Mian Hamid Farooq & Syed Hamid Ali Shah, JJ.
M/s. KARISHMA FASHION BOUTIQUE and another--Appellants
versus
HABIB BANK LIMITED and another--Respondents
E.F.A. No. 484 of 2005, decided on 18.4.2006.
Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 22--Civil Procedure Code, (V of 1908), O. XXI, Rr. 84, 85, 86 & 90--Suit for recovery--Decreed by banking Court--Objection petition dismissed of--Assailed--An auction purchaser was bound to deposit 25% of purchase money on the date of sale and rest of 3/4th of purchase money had to be paid within 15 days from the sale of property--The auction purchaser was allowed to deposit 3/4th purchase price after expiry of stipulated period in clear violation of Order XXI, Rules 85 & 86 CPC--Under normal circumstances, executing Court is not empowered to extend time for deposit of 3/4th of purchase price, which has statutorily been fixed--Appeal allowed. [Pp. 1118 & 1119] A & B
Mr. Muhammad Qamar-uz-Zaman, Advocate for Appellant.
Mr. Tehseen Ullah Butt, Advocate for Respondent No. 1.
Ch. Shafqat Qadeer, Advocate for Respondent No. 2.
Date of hearing : 6.4.2006.
Judgment
Mian Hamid Farooq, J.--Appellants/judgment debtors, through the present appeal, have called in question order dated 21.9.2005, whereby the learned Banking/Executing Court dismissed their objection petition.
Respondent bank's suit for recovery of Rs. 6,01,463/- was decreed, against the appellants, by the learned Judge Banking Court, vide judgment and decree dated 16.1.2002. According to the appellants, they, out of the decretal amount, have so far deposited a sum of Rs. 1,25,000/-. During the execution process, appellants' property was auctioned, held on 15.1.2003, under the orders of the learned Executing Court, which was purchased by Respondent No. 2 for a sum of Rs. 5,00,000/- and 1/4th of the auction price was deposited by him on the same day. The appellants challenged the said auction/sale by filing the objection petition, under Order XXI, Rule 90 CPC, but the same was dismissed by the learned executing Court, on 8.11.2003, as the appellants failed to deposit 20% of the sale amount. This order was not further challenged. Appellants' application for review and recalling of order dated 8.11.2003 was dismissed by the learned executing Court, vide order dated 31.12.2004. Later on, at the request of the learned counsel for Respondent No. 2 and in the absence of the appellants, the learned Judge Banking Court, on 5.1.2005, allowed the auction purchaser to deposit remaining 3/4th of the auction amount, to which no objection was raised by the decree holder bank. The auction purchaser, statedly, deposited the said amount with the Court. The appellants, then, filed another objection petition, assailing order dated 5.1.2005, inter alia, pleading that in view of the provisions of Order XXI, Rule 85 CPC, the learned executing Court could not allow the auction purchaser to deposit 3/4th of the price after the lapse of two years. The said application was resisted by the auction purchaser and the decree holder and ultimately the learned executing Court dismissed the said application, vide impugned order dated 21.9.2005, hence the present appeal.
Learned counsel for the appellants contends that the provisions of Order XXI, Rule 85 CPC are mandatory and the executing Court is not empowered to extend the time fixed for the deposit of remaining 3/4th of the auction amount, therefore, the impugned order is not sustainable. He has relied upon Afzal Maqsood Butt vs. Banking Court No. 2, Lahore and 8 others (2005 CLD 967) and Ajksun International Manufacturers & Exporters, Allama Iqbal Market, Paris Road, Sialkot City through its Partners and 2 others vs. Habib Bank Limited through its Vice President and 2 others (PLJ 2005 Lahore 667). Conversely, the learned counsel for the respondent bank, while relying upon Al-Hassan Feeds and another vs. United Bank Ltd. Jinnah Road, Abbottabad and 6 others (2004 CLD 275) submits that the learned executing Court is competent to extent time for deposit of remaining 3/4th of auction amount. Although Respondent No. 2 was proceeded ex-parte, vide order dated 28.3.2006, yet his learned counsel has entered appearance today and supported the impugned order.
We have heard the learned counsel and examined the available record. Only point involves in this case is as to whether an executing Court is empowered to extend time for deposit of remaining 3/4th of purchase money, which has statutorily been fixed under the Provisions of Order XXI, Rule 85 CPC. The learned executing Court, while relying upon the case of Al-Hassan Feeds (ibid) has extended the time and allowed Respondent No. 2 to deposit balance 3/4th of the auction price that too after a period of two years. Here it appears appropriate to refer to the relevant provisions of law. Order XXI, Rule 84 CPC provides that on every sale of immovable property, the auction purchaser shall immediately pay 25% of the purchase money to the Court auctioneer and in default of such deposit, the property shall forthwith be resold. Order XXI, Rule 85 CPC envisages that the full amount of the purchase money shall be paid by the purchaser in the Court on the 15th day from the date of sale of the property. The next provision of law in line i.e. Rule 86 of Order XXI states that if there is default in payment within the period mentioned in the last preceding rule (Rule 85) the deposit, under the discretion of the Court, be forfeited and the property shall be resold. It flows from the joint reading of the aforenoted provisions of law that an auction purchaser is bound under the law to deposit 25% of the purchase money on the date of the sale and the rest of 3/4th of the purchase money had to be paid within 15 days from the sale of the property. In this case, as noted above, the sale was held, on 15.1.2003, and although the auction purchaser deposited 1/4th of the auction price on the same day, yet he failed to pay the balance 3/4th purchase price within a period of 15 days, until, on 5.1.2005, he was allowed by the Banking Court to deposit 3/4th of the purchase price. It flows from the said narrative that the auction purchaser was allowed to deposit 3/4th of the purchase price after the expiry of more than two years from the date of sale in clear violation of Order XXI, Rules 85 and 86 CPC.
Now coming to the question as to whether in the present case, the learned executing Court, after the expiry of period of two years, could have extended time for deposit of 3/4th of the sale price, which has statutorily been fixed. It is settled law by now that a Court is not competent to extend the time which has been fixed by a statute. Reference can be made to Messrs Maqi Chemicals Industries (Pvt.) Limited through Chief Executive and 3 others vs. Habib Bank Ltd. through Manager and 2 others (2003 CLD 571). We are of the view that the provisions of Order XXI, Rule 85 CPC are mandatory as the non-compliance of said provisions entails penal consequence as provided in Rule 86 of Order XXI. We are fortified by the principle of law laid down in the case of Afzal Maqsood Butt (ibid), wherein it has been held that the provision of Order XXI, Rule 85 CPC relating to the payment of sale price is mandatory. It would be appropriate to reproduced a portion of the said judgment which reads as follows:
"The provision of Order XXI, Rule 85 CPC relating to the payment of sale price is mandatory and the Court in the normal circumstances, is not supposed to extend the time for deposit of the sale price beyond the time provided under the law and on the failure of auction-purchaser to deposit the entire sale price within the prescribed time or within the time allowed by the Court, would render the sale invalid and Court has not option except to resell the property as in consequence to the non-deposit of sale price by the auction purchaser within the time given to him, the sale would become invalid. There can be no departure to the legal position that in the normal circumstances, after the confirmation of sale, it is not set aside but if the sale itself has become invalid, its confirmation would also be invalid."
Learned counsel for the respondent bank, when confronted with the case of Afzal Maqsood Butt (ibid), states that it is true that under the "normal circumstances", the executing Court could not extend time, but this was the fit case in which the time could be extended. However, learned counsel could not demonstrate from the available record as to what were the abnormal and extraordinary circumstances, which persuaded the learned Court in this case to extend the period for deposit of 3/4th of the sale price. In the above perspective, it is held that the executing Court, under the normal circumstance, is not empowered to extend time for deposit of 3/4th of the purchase price, which has statutorily been fixed under the mandatory provisions of Order XXI, Rule 85 CPC.
Now adverting to the judgment of Al-Hassan Feeds (supra), relied upon by the learned counsel for the respondent bank and the learned Banking Court. In the said case of Al-Hassan Feeds, the property was sold, on 17.9.1998, for a sum of Rs. 1,6,00,000/-, the auction purchaser deposited 1/4th of the auction money in the Court, he was directed to pay the remaining amount within a period of 15 days; the auction purchaser, within the said period, on 29.9.1998, filed the application seeking further time to deposit remaining 3/4th amount of the auction price and the learned executing Court extended the time and thus the remaining amount was deposited on 20.10.1998. Honourable Supreme Court of Pakistan in these circumstances held that the time for the deposit of remaining amount could be extended. Now coming to the facts of the present case in juxta position with the facts of the case of Al-Hassan Feeds, as noted above. In this case, the sale was held, on 15.1.2003; 1/4th of the auction amount was deposited on the same day; Respondent No. 2 neither deposited remaining 3/4th of the purchase money within 15 days nor filed any application for the extension of time within the said period, or even thereafter, and he, after the expiry of period of two years, on 5.1.2005, without showing any abnormal or extraordinary circumstances, through his counsel, stated before the Court that he wishes to deposit 3/4th of the auction price. Thereupon the learned executing Court, without issuing any notice to the appellants, in whose favour, valuable rights had accrued by that date, only after obtaining consent of the decree holder bank, allowed the auction purchaser to deposit the balance 3/4th of the auction price. In view of the above narrative, the facts and circumstances, whereunder it was held by the Hon'ble Supreme Court of Pakistan that extension was justified, are comprehensively absent in the case in hand. There cannot be any cavil to the principles of law laid down in the said judgment, however, it is not applicable under the facts and circumstances of the present case, thus the said judgment does not in any way advance the case of the respondents. Reliance of the learned Banking Court on the case of Al-Hassan Feeds is misconceived.
Upshot of the above discussion is that the present appeal is allowed and the impugned order dated 21.9.2005 is set aside with no order as to costs. Resultantly, appellants' objection petition filed on 14.1.2005, is also accepted.
(T.S.Faisal) Petition allowed.
PLJ 2006 Lahore 1120 (DB)
Present: Mian Hamid Farooq & Umar Ata Bandial, JJ.
NOOR BADSHAH--Appellant
versus
HOUSE BUILDING FINANCE CORPORATION and another--Respondents
E.F.A. No. 97 of 2003, heard on 4.7.2006.
Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 22--Proclamation of sale--Suit for recovery decreed by the Banking Court--Application was dismissed--Assailed--Validity--Court auctioneer has no authority either to reduce the reserve price or to accept any bid blow the reserve price, which was the sanctity of Court, who fixed reserve price--Held: Although reserve price of property was fixed at specified amount--Yet the property was sold at low price in complete violation of proclamation of sale--Court auctioner committed material irregularity while conducting the sale and accepting bid of respondent below reserve price, inasmuch as the order of the Court fixed reserve price was completely ignored--Held: No provision of law finds mentioned in caption of application--Executing Court failed to apply its judicial mind and completely misdirected--In normal circumstances, after confirmation of sale it is not set aside, but if sale itself becomes invalid its confirmation would also be invalid--Impugned order was not sustainable in law and same is set aside--Appeal allowed. [Pp. 1122 & 1123] A, B, C & D
Mr. Javaid Jalal, Advocate for Appellant.
Ch. Shafique-ur-Rehman, Advocate for Respondent No. 1.
Mr. Tariq Mehmood Mann, Advocate for Respondent No. 2.
Date of hearing : 4.7.2006.
Judgment
Mian Hamid Farooq, J.--Present appeal, under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, proceeds against order dated 6.2.2003, whereby the learned Judge Banking Court, dismissed appellant's objection petition and confirmed the sale, qua the auctioned property, favouring Ghulam Rasool son of Khuda Bakhsh.
Precisely stated facts, as discernible from the available record, are that pursuant to decree dated 21.9.95, for recovery of Rs. 92,637/- alongwith costs, passed by the then learned Banking Tribunal (since defunct), favouring the respondent corporation and against the appellant, the decree holder corporation initiated execution proceedings. The learned Executing Court appointed the Court auctioneer to conduct sale of mortgaged property, comprising of a house, however, in the first attempt the property could not be sold. Ultimately, the questioned house was auctioned, Respondent No. 2's bid of Rs. 1,15,000/- was accepted and he was declared as successful. Pursuant thereto, the Court auctioneer submitted the report, thereby stating that Ghulam Rasool is the highest bidder and he has paid 1/4th of the auction price. The appellant, then, filed the application for cancellation of the auction proceedings, whereupon the learned Executing Court directed him to deposit 20% of the amount realized from the sale, which amount was, reportedly, deposited by the appellant. In the meantime, Ghulam Rasool, the auction purchaser, filed the application for confirmation of sale. Appellant's objection petition was opposed by the respondents and ultimately the learned Judge Banking Court, after finding that no objection regarding proceedings of the sale has been raised, proceeded to dismiss the said application and confirmed the sale in favour of Respondent No. 2 vide composite order dated 6.2.2003, hence the present appeal.
Learned counsel for the appellant contends that although mark up was not allowed in the judgment dated 21.9.95, yet the decree sheet erroneously shows that mark up was also granted to the respondent corporation. He adds that future mark up cannot be recovered under the law, as the Banking Tribunal had no jurisdiction and authority to allow mark up under the Banking Tribunals Ordinance, 1984. He further submits that the appellant has liquidated the decretal amount, inasmuch as a sum of Rs. 5000/- had excessively been paid. He further adds that the impugned order is not sustainable in law, inasmuch as the objections of the appellant were not considered. Conversely, the learned counsel for the respondents have supported the impugned order and asserted that the respondent corporation was entitled to recover mark up as per the terms of the decree.
We have heard the learned counsel and examined the available record. Admittedly, Respondent No. 2 gave highest bid of Rs. 1,15,000/-, he was declared as successful bidder and on that basis sale in his favour was confirmed. We have perused the proclamation of sale, qua the mortgaged property, held on 19.10.2002, and find that reserve price of the property was fixed at Rs. 1,50,000/-. It flows therefrom that the bid had to start from Rs. 1,50,000/- and the Court auctioneer has no authority either to reduce the reserve price or to accept any bid below the reserve price, which has the sanctity of the Court, who fixes the reserve price. The purpose of fixing reserve price in the proclamation is that the Court safeguards the rights of judgment debtor and the bid starts from that figure. Reference can be made to Brig. (Retd.) Mazhar-ul-Haq and another vs. M/s. Muslim Commercial Bank Limited, Islamabad and another (PLD 1993 Lahore 706). It has been held in the case reported as Mrs. Aziz Fatima and 3 others vs. Mrs. Rehana Chughtai and 3 others (2000 CLC 863), while relying upon the case of Brig. (Retd.) Mazhar-ul-Haq (ibid), that non-disclosure of reserve price of the property in the proclamation would render the sale liable to be struck down. It appears from the available record that although reserve price of the property was fixed at Rs. 1,50,000/-, yet the property was sold at a low price of Rs. 1,15,000/-, in complete violation of the proclamation of sale. Unfortunately, neither the Court auctioneer nor the learned Executing Court attended to this glaring illegality which, to our mind, vitiated the sale. It has been held in Mrs. Shahida Saleem and another vs. Habib Credit and Exchange Bank Limited and 4 others (2001 CLC 126) that where property was sold in complete disregard of rules and in questionable circumstances, even suo moto action for setting aside the sale would be justified. We find that the Court auctioneer committed material irregularity while conducting the sale and accepting the bid of Respondent No. 2 below the reserve price, inasmuch as the order of the Court, fixing the reserve price, was completely ignored. It may be noted that appellant in his objection petition took the objection that although the property is worth Rs. 5,00,000/-, yet the same was sold to some interested person at a very low price of Rs. 1,15,000/-. The learned Executing Court did not, at all, advert to the said aspect of the case and proceeded to dismiss appellant's objection petition in a mechanical manner, while holding that no provision of law finds mentioned in the caption of the application. This shows that the learned Executing Court failed to apply its judicial mind and completely misdirected itself.
The sale in this case has been declared to be illegal on account of material irregularity, therefore, we are persuaded to set aside the sale. In the normal circumstances, after confirmation of sale it is not set aside, but if the sale itself becomes invalid its confirmation would also be invalid. Reference can be made to Afzal Maqsood Butt vs. Banking Court No. 2, Lahore and 8 others (2005 CLD 967).
In the above perspective, we have examined the impugned order and find that the same is not sustainable in law and we are persuaded to set it aside.
In the above backdrop, the appeal is decided in the following terms:--
(i) The appeal is allowed and the impugned order dated 6.2.2003 is set aside.
(ii) Sale in favour of Ghulam Rasool, in respect of questioned house, is also declared illegal and set aside.
(iii) Appellant's objection petition and execution petition shall be deemed to be pending before the learned Executing Court.
(iv) The learned Executing Court shall, firstly, decide the objection petition and thereafter proceed with the execution petition, if need arises, of course in accordance with law.
(v) No order as to costs.
(T.S. Faisal) Appeal allowed
PLJ 2006 Lahore 1123 (DB)
Present: Mian Hamid Farooq and Umar Ata Bandial, JJ.
NATIONAL BANK OF PAKISTAN--Appellant
versus
M/s. OVERSEAS TRADING SERVICES (PVT.) LTD. through MANAGING DIRECTOR, LAHORE CANTT. and 5 others--Respondents
R.F.A. No. 359 of 2006, decided on 5.7.2006.
Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----Ss. 17, 22 & 27--Suit for recovery decreed by Banking Court--Execution dismissed--Assailed--Decree holder could not point out anything to show that any other amount is due against judgment debtors--Appellants second execution application was dismissed as having been satisfied and born fruit--After the dismissal of second execution application third execution application was not competent--Appellant did not challenge order dated 20.12.2005 at appropriate stage--Strangely enough, it failed to assail said order even in present appeal--It is evident from conduct of appellant that, he felt satisfied from said order, and did not challenge the same at any point of time--If any loss has been caused to appellant bank, it was because of negligence, carelessness and conduct of its functionaries, who could not point out that costs of funds are still to be recovered--Impugned order was legal and did not require interference--Appeal dismissed. [P. 1125 & 1126] A & B
Mr. Muhammad Qamar-uz-Zaman, Advocate for Appellant.
Date of hearing : 5.7.2006.
Order
Mian Hamid Farooq, J.--Present appeal by National Bank of Pakistan, under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, proceeds against order dated 29.5.2006, whereby the learned Judge Banking Court dismissed appellant's third execution application.
Decree for recovery of Rs. 62,88,470.34/- was passed, on 28.4.2002, against the respondents, together with costs and benefits of Section 17 of Ordinance, XLVI of 2001, by the learned Judge Banking Court, Lahore. It appears that the respondents failed to satisfy the decree, therefore, appellant, on 1.7.2002, filed first execution application, which was dismissed for non-prosecution on 21.4.2004. On 4.1.2005, the appellant bank filed second execution application, which was resisted by the respondents and ultimately the learned Executing Court, after finding that the decree stood satisfied, dismissed the second execution application, as have borne fruit, vide order dated 20.12.2005. The appellant, although felt aggrieved from the said order, yet instead of challenging the said order before the higher forum, choose to file the review application, on 6.2.2006, but the same was withdrawn on 1.4.2006. The appellant then, on 6.4.2006, filed the third execution application and the learned Judge Banking Court, after finding that order dated 20.12.2005 has attained finality under Section 27 of the Ordinance XLVI of 2001, proceeded to dismiss the latest execution application, vide impugned order dated 29.5.2006, hence the present appeal.
Learned counsel for the appellant contends that the decree was passed alongwith benefits of Section 17 of the Ordinance XLVI of 2001 and as the said amount was still recoverable, therefore, third execution application was maintainable and it was illegally dismissed. He further submits that the decree was not completely satisfied, as costs of funds are yet to be recovered from the judgment debtors. He adds that the learned Executing Court cannot go beyond the decree.
We have heard the learned counsel and examined the available record. The second execution application, filed by the appellant bank, was dismissed by the learned Executing Court, when the learned counsel for the decree holder admitted issuance of certificate by Bank's functionary and did not raise the pleas now agitated by the learned counsel. It has been noted by the learned Judge Banking Court, in order dated 20.12.2005, that the learned counsel for the decree holder could not point out any thing to show that any other amount is due against the judgment debtors. It would be appropriate to reproduce para 3 of the order dated 20.12.2005, which reads as follows:--
"The decree was passed on 28.5.2002 for a sum of Rs. 52,88,470/- and Rs. 67,174/- have been shown as costs in the execution application. The judgment Debtor No. 2/petitioner has already deposited Rs. 6.288 Million. This is admitted by the learned counsel for the decree holder and the certificate issued by the Manager Credit of the Decree Holder/Bank dated 14.2.2004 is to that effect. This shows that the judgment debtor/petitioner has cleared his entire liability and nothing is outstanding against him. During arguments the learned counsel for the decree holder could not point out anything from which it could be known that any other amount is due against the judgment debtor. In the circumstances, the execution application is dismissed as having borne fruit.
It flows from the above that appellant's second execution application was dismissed as having been satisfied and borne fruit. The appellant, admittedly, did not challenge order dated 20.12.2005 before this Court and appeared to be contended, thus, the said order has attained finality. Although the appellant bank filed a review application, yet the same was withdrawn and the third execution application was filed. To our mind, after the dismissal of the second execution application, on the ground of its satisfaction, vide order dated 20.12.2005, the third execution application was not competent, as rightly held by the learned Judge Banking Court. The execution application once consigned to record, having been satisfied, and that too in the presence of the decree holder and without any objection, cannot be resurrected under the garb of third execution application. Learned Judge Banking Court has rightly held that order dated 20.12.2005 has attained finality under Section 27 of the Ordinance XLVI therefore, it can neither be reviewed nor another execution application could be entertained.
There is another aspect of the case. the appellant, admittedly, did not challenge order dated 20.12.2005 at the appropriate stage. Strangely enough, it failed to assail the said order even in the present appeal. Answering to a Court question, the learned counsel for the appellant, after thoroughly consulting the record, has conceded that the appellant did not challenge order dated 20.12.2005 in this appeal. It is evident from the conduct of the appellant that it felt satisfied from order dated 20.12.2005 and, thus, did not challenge the same at any point of time. In view of the aforenoted position, the contention of the learned counsel has no substance, as the learned Executing Court has not gone beyond the decree. If any loss has been caused to the appellant bank, it was because of negligence, carelessness and conduct of its functionaries, who could not point out, at the time of passing of order dated 20.12.2005, that costs of funds are still to be recovered or/and also failed to file the appeal against order dated 20.12.2005. The appellant did not choose to assail order dated 20.12.2005 even in the present appeal.
In the above perspective, we have examined the impugned order and find that the same is legal and does not require interference by this Court, thus, the same is maintained.
In the above backdrop, the present appeal stands dismissed in limine being devoid of merits.
(T.F. Faisal) Appeal dismissed.
PLJ 2006 Lahore 1126
Present: Sayed Zahid Hussain, J.
IRFAN AHMAD KHAN and 4 others--Petitioners
versus
FEDERATION OF PAKISTAN through SECRETARY TO GOVT. OF PAKISTAN MINISTYR OF RAILWAYS ISLAMABAD and 8 others--Respondents
W.P. No. 3042 of 2006, heard on 14.4.2006.
Constitution of Pakistan, 1973--
----Arts. 4 & 199--Protection of right of individual--Held: Action taken depriving citizens, the use of their occupation thereof must have the baking of contemporaneous law--Such action would be wholly unwarranted by law and indeed violative of the provisions of the Constitution--Sealing of the shops by and at the instance of respondents was wholly unwarranted which could not be countenanced--Sealing of the shops as illegal and without lawful authority--Petition accepted.
[P. 1127] A
Mr. Muhammad Shahzad Shaukat, Advocate for Petitioners.
Mr. Umasr Sharif, Advocate/Standing counsel for Pakistan Railways Faisal Khan, AEN/DS Workshop and Mehtab Hashim Head Workshop Pakistan Railways, for Respondents.
Date of hearing : 14.4.2006.
Judgment
The petitioners claiming to be the occupants of shop on the basis of purported tenancy agreements in their favour from Respondent No. 9 are aggrieved of the sealing of the said shops by and at the instance of Respondents Nos. 1 to 8 and have filed the present petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for a direction to de-seal the said shops.
Parawise comments have been filed on behalf of Respondents Nos. 1 to 8. The very authority of Respondent No. 9 of leasing out the shops has been disputed. It is pleaded that the lessee is Shalimar Hospital whose management had warned Respondent No. 9 not to construct illegal shops and also wrote to the Pakistan Railways for appropriate action against the committee of Respondent No. 9.
The learned counsel for the parties have been heard.
The learned counsel for the petitioners has, without conceding the stance of Respondents Nos. 1 to 8, pointed out that there is no law authorizing the sealing of the shops in the manner it has been done by Respondents Nos. 1 to 8. According to him the said respondents could at the most invoke the provisions of Section 5 of West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966 (Ordinance IX of 1966). The perusal of the said provision of law shows that for the eviction of unauthorized occupants an order in writing is to be made directing such person to vacate the land/building within the specified period failing which the process for recovery of possession envisaged by sub-section (2) thereof is invokable. This procedure however, was not adopted nor followed by Respondents Nos. 1 to 8. They do not seem to be conscious of the same. It may be observed that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen as is enshrined by Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. Since the occupation of the petitioners of the shops was admitted any action depriving them of the use of occupation thereof must have the baking of contemporaneous law otherwise action would be wholly unwarranted by law and indeed violative of the provisions of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. Sealing of the shops by and at the instance of Respondents Nos. 1 to 8 thus was wholly unwarranted which cannot be countenanced.
In view of the above, declaring the action of sealing of the shops as illegal and without lawful authority the Respondents Nos. 1 to 8 are directed to de-seal the shops forthwith. It is however observed that this order will not impede or deter the Respondents Nos. 1 to 8 from proceedings in the matter in accordance with law.
The petition is accepted accordingly with the above observations. No order as to costs.
(Fozia Fazal) Petition accepted
PLJ 2006 Lahore 1128
Present: Syed Shabbar Raza Rizvi, J.
MUHAMMAD ZAFARULLAH KHAN and another--Petitioners
versus
EHSAN ULLAH KHAN and 2 others--Respondents
W.P. No. 1580 of 2006, decided on 23.2.2006.
Punjab Local Government Election Rules, 2005--
----Ss. 67, 71 & 72--Civil Procedure Code (V of 1908), O.VI, R. 15--Constitution of Pakistan, 1973, Art. 199--Amendment in election petition--Essential--Discretionary for the election tribunal to dismiss an election petition--It is not mandatory in all circumstances to dismiss an election petition--There was nothing wrong in the impugned order of tribunal as it was a matter of fact, consistent and compatible with the rules of the Act--Petition dismissed. [P. 1129] A & B
Malik Abdus Sattar Chughtai, Advocate for Petitioners.
Date of hearing : 23.2.2006.
Order
The petitioners contested election of Nazim and Naib Nazim of Union Council No. 9, District Bhakkar against Respondents Nos. 1 and 2. Respondents Nos. 1 and 2 filed election petition before Respondent No. 3. According to the learned counsel for the petitioner, said election petition was not duly signed by Respondents Nos. 1 and 2. It was also not verified under Order 6, Rule 15 of CPC read with Punjab Local Government Election Rules, 2005.
The Respondents Nos. 1 and 2 filed an application seeking amendment in the election petition which was opposed by the petitioners. The Election Tribunal, Respondent No. 3 allowed application for amendment/modification of Respondents Nos. 1 and 2 vide order dated 14.1.2005.
According to the learned counsel for the petitioners, the learned Election Tribunal was bound to dismiss election petition under Rule 72 of the Punjab Local Government Election Rules as requirements of Rule 67 were not fulfilled. In this regard, the learned counsel referred to a judgment of my learned brother Mian Hamid Farooq J/Election Tribunal. Without going into deeper analysis and discussion, it is pointed out that the said decision was given under Section 52 of the Representation of Peoples Act, 1976, therefore, the said judgment is not applicable to the present case which is governed by the Punjab Local Government Election Rules, 2005 read with Punjab Local Government Ordinance, 2001.
Under Rule 67(3), every election petition is required to be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure. The consequences are given in Rule 72 which reads as under:--
"The tribunal may dismiss an election petition if--
(a) the provisions of Rules 67 and 70 have not been complied with; or
(b) the allegations contained therein are vague or do not disclose the commission of any corrupt practice, material irregularity, or other illegal act."
Rule 72 starts, "the tribunal may" instead of "the tribunal shall". The language of Rule 72 signifies that it is discretionary for the election tribunal to dismiss an election petition if requirements of Rule 67 are not fulfilled, it is not mandatory for him in all circumstances to dismiss an election petition. For further guidance 2004 MLD 1331, Zulfiqar Hassan vs. Mirza Haq Nawaz is referred to. Even my learned brother, Mian Hamid Farooq J. held while hearing Election Petition No. 3 of 2003, Rana Muhammad Hayat vs. Sardar Talib Hussain Nikai, that election tribunal having all powers of civil Court trying a suit under C.P.C, can allow parties to amend pleadings at any stage of proceedings, if same is necessary for ensuring for fair and effective trial and determination of real question in controversy. Moreover, Rule 72 is to be read with Rule 71(4) which is as under:--
"The tribunal may, at any time, upon such terms and on payment of such cost as it may direct, allow a petition to be amended in such a manner as may, in its opinion, be necessary for ensuring a fare and effective trial and for determining the real question in controversy, so however that no new ground of challenge to the election is permitted to be raised."
The learned tribunal exercised its powers under Rule 71(4) of the Punjab Local Government Election Rules, 2005, therefore, there is nothing wrong in the impugned order, it is, as a matter of fact, consistent and compatible with Rule 71(4).
The learned counsel also referred to PLD 2005 SC 600 and 2000 SCMR 250. It may be pointed out that in PLD 2005 SC 600, the order passed by the election tribunal comprising my learned brother Mian Hamid Farooq J. was challenged and the appeal was accepted. Therefore, the learned counsel for the petitioner should have decided whether he relied upon order of the Election Tribunal (Election Petition No. 1/2003) or PLD 2005 SC 600, Sardar Zada Zafar Abbas v. Syed Hassan Murtaza? Both cannot be relied upon, it would be self contradictory. As stated above, in the above case, election of Provincial Assembly was challenged under Representation of the People Act, 1976 and not under the Punjab Local Government Ordinance, 2001 read with the Punjab Local Government Election Rules, 2005. Similarly, the learned counsel has wrongly referred to 2000 SCMR 250, wherein provisions of Houses and Parliament and Provincial Assemblies (Election) Order (P.O. 5 of 1977), Senate (Election) Act (LI of 1975) and the Constitution of Pakistan were under discussion.
In Abdul Nasir and another vs. Election Tribunal, T.T.Singh, the Hon'ble Supreme Court while deciding an election petition relating to the post of Nazim and Naib Nazim, Union Council No. 272, Faisalabad held that mere defect regarding verification of election petition would not render the same unmaintainable. For further guidance see 2004 SCMR 602, Abdul Nasir v. Election Tribunal T.T. Singh and others.
In view of the above discussion and reasons, this writ petition is dismissed at limine stage.
(Fozia Fazal) Petition dismissed.
PLJ 2006 Lahore 1130
Present: Syed Hamid Ali Shah, J.
MUNAWAR HUSSAIN--Appellant
versus
MUSLIM COMMERCIAL BANK LTD. through President Bank Management, Head Office Karachi and 3 others--Respondents
L.A.No. 126 of 2005, heard on 15.9.2005.
(i) Industrial Relations Ordinance, 2001--
----S. 25-A--Constitution of Pakistan, 1973, Art. 199--Grievance petition--Dismissed of--Appellant did not serve any grievance notice, he however submitted a mercy petition to the President of MCB--Prayer for the review of the decision of his dismissal on account of his ailment--Grievance relates to a complaint against an injustice done to a party, while mercy means a request by a guilty person, who in distress, seeks reconsideration of his case on compassionate ground rather than on merits--Order of dismissal in a mercy petition on basis of ailment can not in any manner be equated with grievance notice--Law requires grievance notice to be served on employer, which had not been served and as such grievance petition is not maintainable--Labour Court rightly dismissed the grievance petition--Appeal dismissed. [Pp. 1131 & 1132] A & D
(ii) Words and Phrases--
----Word mercy in seventh edition of Blacks Law Dictionary has been defined as under:--
"Compassionate treatment, as of criminal offenders or of those in distress: esp., imprisonment, rather than death, imposed as punishment for capital murder." [P. 1132] B
(iii) Words and Phrases--
----While the word grievance a super seventh edition of Blacks Law Dictionary means:
"An injury, injustice, or wrong that gives ground for a complaint (a petition for a redress of grievance). (ii) Complaint itself (the client filed a grievance with the state-bar committee). (iii) Labor law. A complaint that is filed by an employee or the employee's union representative and that usu. concerns working conditions, esp., an alleged violation of a collective-bargaining agreement." [P. 1132] C
Mr. Asmat Kamal Khan, Advocate for Appellant.
Ch. Rahim-ud-Din, Advocate for Respondents.
Date of hearing : 15.9.2005.
Judgment
The appellant has assailed in the instant appeal order dated 3.3.2005 passed by the Punjab Labour Court-VII, Gujranwala wherein the grievance petition under Section 25-A of the Industrial Relations Ordinance, 2001 was dismissed.
Learned counsel for the appellant has argued that the workman has to bring his grievance into the notice of the employer in writing in respect of any right guaranteed under any law, award or settlement. The law has not specified form of the grievance. The appellant has served upon the respondent a mercy petition, which sufficiently qualifies to be a grievance notice. He has lastly argued that the learned Labour Court while passing the impugned order has ignored the mercy petition as a grievance notice and has committed material illegality.
Learned counsel for the respondents, on the other hand, has supported the judgment and has argued that the appellant has failed to place on record any grievance notice. Adds that the grievance notice is an essential requirement and in the absence of such notice, the grievance petition is not maintainable in the eyes of law. He in support of his contentions has placed reliance on "National Bank of Pakistan versus Muhammad Javed Khan" (1982 PLC 380) and 1992 CLC 920.
I have heard learned counsel for the parties at length and examined the relevant record with their assistance.
The appellant has not admittedly served any grievance notice. He, however, while appearing as AW-2 stated that he has submitted a mercy petition (Ex. P-13) to the President of MCB on 31.7.2002. Perusal of Ex. P-13 reveals that the appellant has requested for the review of the decision of his dismissal on account of his ailment as he was statedly under the treatment of psychiatrist. He also stated that his wife too was suffering from sever depression. The Word mercy in seventh edition of Blacks Law Dictionary has been defined as under:
"Compassionate treatment, as of criminal offenders or of those in distress: esp., imprisonment, rather than death, imposed as punishment for capital murder."
While the word grievance as per seventh edition of Blacks Law Dictionary means:
"An injury, injustice, or wrong that gives ground for a complaint (a petition for a redress of grievance). 2. the complaint itself (the client filed a grievance with the state-bar committee). 3. Labor law. A complaint that is filed by an employee or the employee's union representative and that usu. concerns working conditions, esp., an alleged violation of a collective-bargaining agreement."
Meanings of the above two terms as given in various dictionaries make it clear that grievance relates to a complaint against an injustice done to party while mercy means a request by a guilty person, who in distress, seeks reconsideration of his case on compassionate ground rather than on merits.
(T.S. Faisal) Appeal dismissed.
PLJ 2006 Lahore 1132 (DB) [Rawalpindi Bench Rawalpindi]
Present: Abdul Shakoor Paracha & Mian Hamid Farooq, JJ.
NADEEM WALI--Petitioner
versus
STATE & another--Respondents
Crl. Rev. 96 of 2006 converted into W.P. No. 1179 of 2006, decided on 9.5.2006.
(i) Criminal Procedure Code, 1898 (V of 1898)--
----S. 540--Constitution of Pakistan, 1973, Art. 199--Re-summoning of PWs for cross-examination--Petition rejected by Special Court--Assailed--Validity--Cross-examination of P.Ws. was conducted by the State counsel depriving the petitioner from his valuable right to defend himself through a private counsel of his own choice--Evidence of the P.Ws appears to the Court essential to reach a just conclusion of the case--Held: It was obligatory for the trial Court on the basis of second part of Section 540 Cr.P.C. to summon, examine and recall witnesses--Petition accepted and impugned order set aside--A direction issued to the trial Court to examine the witnesses and afford an opportunity to the petitioner to cross-examine them. [P. 1135] C & D
PLD 1991 SC 430.
(ii) Constitution of Pakistan, 1973--
----Art. 199--Statutory right--Right to be defended by a counsel is a statutory right of the accused particularly in charge entailing capital punishment which cannot be abridged by appointment of counsel a day or two before trial. [P. 1134] A
1975 SCMR 1 and PLD 1973 Lah. 365, (D.B.).
(iii) Criminal Procedure Code, 1898 (V of 1898)--
----S. 540--Discretionary power--Held: The use of word "may" confers discretionary power on the Court whereas the second part of the S. 540 Cr.P.C. by employing the word "shall" makes it obligatory on the Court to summon, examine or recall and re-examine such persons if his evidence appears to it essential to the just decision of the case. [Pp. 1134 & 1135] B
Mr. Aazar Latif Khan, Advocate for Petitioner.
Mr. M. Tanvir Iqbal Khan, AAG for State.
Date of hearing : 9.5.2006.
Order
Abdul Shakoor Paracha, J.--Nadeem Wali petitioner/accused involved in a case registered vide F.I.R. No. 18 dated 6.7.2001 under Sections 302/324/353/34 read with Section 7 ATA at Police Station Kalar Kahar, Chakwal assails the order dated 8.4.2006 passed by the learned Judge Special Court No. 1. Anti-Terrorism Rawalpindi Division and Islamabad Capital Territory through which the application of the petitioner Nadeem Wali under Section 540 Cr.P.C. to re-summon PWs 3, 4, 9, 10, 12 and for allowing his counsel to cross-examine the above stated witnesses has been rejected.
Learned counsel contends that petitioner accused has a legal right under the law to appoint a counsel of his choice. The cross-examination was done on the above stated PWs by the State counsel unathorizedly even proper instructions were not obtained from the present petitioner. Further contends that on the mandate of Section 540 Cr.P.C. it was obligatory on the part of the Court to summon, examine, or recall and re-examine any such person, if the Court thinks it proper that said person is necessary for the purpose for just decision of the case. Conversely, learned Assistant Advocate-General contends that by using the word "may" in Section 540 Cr.P.C. it confers discretion on the Court to summon, re-examine or recall any such person if his evidence appears to it essential to the just decision of the case. The jurisdiction has rightly been exercised by the Court under Section 540 Cr.P.C. because the witnesses have been already cross-examined by the Defence counsel appointed by the Court.
We have heard the arguments of the learned counsel for parties and perused the record with their assistance.
Right to be defended by a pleader counsel is a statutory right of the accused particularly in charge entailing capital punishment which can not be abridged by appointment of counsel a day or two before trial. See the case of Hakim Khan and another versus State (1975 SCMR 1). In the case of Muhammad Sharif versus the State (PLD 1973 Lahore 365-DB) the counsel was not appointed in accordance with Rule 2, Part-C, Chapter 24, Volume 3 of the High Court Rules and Orders, the case was remanded. The admitted position on the record is that the State counsel has cross-examined the above stated witnesses i.e. PWs 3, 5, 9, 10 and 12.
Section 540 Cr.P.C. gives ample power to the Court to recall a witness or examine any person which reads as under:
S. 540, Power to summon material witness or examined persons present.--Any Court may, at any inquiry trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."
The plain reading of the above section indicates that there are two portions of Section 540 Cr.P.C. The first part empowers the ordinary Courts at any inquiry, trial and other proceedings under this Code to summon any person as a witness, or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined. Whereas the second part of the said section enshrines the Court to summon, examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. In other words the in first part of the aforesaid section the use the word "may" confers discretionary power on the Court whereas the second part of this Section by employing the word "shall" makes it obligatory on the Court to summon, examine of recall and re-examine such person if his evidence appears to it essential to the just decision of the case. See case reported as Mehr Khan vs. the State (PLD 1991 SC 430).
We have noted that in support of the fact that petitioner had engaged a private counsel. The cross-examination of the stated P.Ws was conducted in the State counsel depriving the petitioner from his valuable right to defend himself through a private counsel of his own choice. We feel that evidence of the above stated witnesses i.e. PWs 3, 5, 9, 10 and 12 appears to the Court essential to reach a just conclusion of the case, therefore, it was obligatory for the trial Court on the basis of second part of Section 540 Cr.P.C. to summon, examine and recall the above witnesses. For what has been discussed above. This writ petition is accepted and the order dated 8.4.2006 rejecting the application of the petitioner to re-summoning the above stated PWs for cross-examination is declared to be with out lawful authority. A direction is issued to the trial Court to examine the witnesses mentioned above and afford and opportunity to the petitioner to cross-examine them. Disposed of.
(M. Ajmal Rana) Petition accepted.
PLJ 2006 Lahore 1135 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD QASIM & another--Petitioners
versus
DUTY DISTRICT RETURNING OFFICER MUZAFFARGARH & 4 others--Respondents
W.P. No. 783 of 2006, heard on 25.4.2006.
(i) Constitution of Pakistan, 1973--
----Art. 199--Jurisdiction of Duty Returning Officer--Nomination papers rejected by Returning Officer, however, appeal, was allowed by Duty District Returning Officer--Assailed--Validity--Duty Returning Officer had no jurisdiction to entertain and decide the appeal--Contention of--Held : Chief Election Commissioner for Pakistan appointed District and Sessions Judge, as District Returning Officer and as appellate authority against decision of Returning Officers accepting or rejecting the nomination papers--Further held: Duty District Returning Officer had no jurisdiction to decide the appeal having not been appointed by the Chief Election Commissioner for the such purpose. [P. 1137] A
(ii) Constitution of Pakistan, 1973--
----Art. 199--Sanad-ul-Faragh--Respondents appointed Nazim/Naib Nazim of Union Council--Member Election Commission found that Respondent had not possessed of the requisite qualifications and election was declared to be void and fresh election was ordered--Respondents filed nomination papers which were rejected by Returning Officer and accepted by Duty District Returning Officer--Assailed--Validity--Sanad-ud-Faragh purporting to have been issued by Madrasa Al-Quranul Aarabia Bahar-ul-Aloom--That Institution did not find any mention in the list of the Madaris approved by the University Grants Commission (now Higher Education Commission)--The very basis of the said exercise undertaken by the said University and the said respondent stands knocked out as the Sanad itself has not been issued by any Madrasa approved by the UGC or HEC--Held: Sanad was found to be invalid, there was no question of a person passing B.A. examination regarding whom it has been held as a fact that he was not a matriculate--Petition allowed. [P. 1138] B, C, D & E
PLD 2005 SC 858; 2003 SCMR 195; 2006 YLR 138.
Mirza Aziz Akbar Baig, & Sardar Tariq Sher Khan, Advocates for Petitioners.
Malik Shahzad Fareed Langrial, Advocate for Respondents Nos. 4 & 5.
Date of hearing : 25.4.2006.
Judgment
The Respondents Nos. 4 and 5 contested the election to the seats of Nazim and Naib Nazim in U.C. No. 78, Tehsil Jatoi, District Muzaffargarh, and were declared returned. Pursuant to order dated 1.9.2005 passed in W.P. No. 5252/05, the matter was referred to the learned Chief Election Commissioner. Notices were issued to the said respondents. The Respondent No. 4 put in appearance on 4.10.2005. He took the plea that he has obtained a Sanad from a Madrasa. He prayed for adjournment in order to enable him to obtain an equivalence certificate. The case was adjourned to 11.11.2005 with a direction to file an equivalence certificate within one month. On 11.11.2005 the equivalence certificate was not filed. However, he filed a certificate issued from Shah Abdul Latif University, Khairpur, dated 25.1.2005 stating that the said Sanad was equivalent to B.A. (Pass) Par-I for the purpose of seeking admission to M.A. (Previous), Arabic, Islamic Culture. The learned Member again issued directions for filing of an equivalence certificate. Instead of complying with the said order, the Respondent No. 4 produced an original Secondary School Certificate showing that he has passed Matriculation Examination in Annual, 2002. The evidence was produced by the opposite party to show that the said certificate purported to have been issued by the Board of Intermediate & Secondary Education, Sukkur, Sindh, was not genuine. The learned member was also informed that in the earlier election, he had relied upon a Matriculation Certificate issued by the Board of Intermediate & Secondary Education, Multan, which was cancelled on 27.10.2001 on the ground of using unfair means. The learned member found that the said respondent is not possessed of the requisite qualifications. Consequently, the election to both the seats was declared to be void and fresh elections were ordered vide order dated 12.12.2005 (Annex: `A').
On 14.2.2006 the Respondents Nos. 4 and 5 filed nomination papers for contesting the said bye-elections. The learned Returning Officer was apprised of the said order of the learned member of the Election Commission. The nomination papers were rejected on 20.2.2006. The Respondents Nos. 4 and 5 filed an appeal which was heard by Respondent No. 1 who proceeded to allow the same on 22.2.2006. He held that the said Respondent No. 4 has passed the B.A. Examination (Part-II) held in the month of September, 2005, whereas the basic qualification is only Matric.
Learned counsel for the petitioners contend that the Respondent No. 1 having not been duly appointed as a District Returning Officer had no jurisdiction to entertain and decide the appeal and consequently the impugned order is without lawful authority. It is further contended that the basic certificate being not equivalent to Matric or any higher degree, the Respondent No. 4 is not possessed of the requisite educational qualification to contest the election to the said seat. Learned counsel for the contesting respondents, on the other hand, contends that the Respondent No. 4 has obtained a Sanad Faragh issued by Madrasa Al-Quran, Shikarpur, which is affiliated with Shah Abdul Latif University, Khairpur and the said University recognized the said Sanad equal to B.A. (Pass) Part-II for the purpose of seeking admission in M.A. (Previous). The said University is a chartered University by Higher Education Commission (HEC). The said HEC vide letter dated 8.12.1991 issued a direction that holder of the said Sanad will be required to qualify in additional subjects at B.A. level from a University alongwith the subjects of Pakistan Studies and the Islamic Studies. The Respondent No. 4 appeared in the said B.A. Examination held in September, 2005 and as per result declared in February, 2006, he has passed the B.A. Examination and a degree has been awarded to him by the said University at Khairpur.
I have gone through the copies of the several documents placed on record by both the parties. Now vide notification dated 16.2.2006 the learned Chief Election Commissioner for Pakistan appointed District and Sessions Judge, Muzaffargarh, as District Returning Officer and as appellate authority against decisions of Returning Officers accepting or rejecting the nomination papers. Now the impugned order itself narrates that the District and Sessions Judge, Muzaffargarh, is on leave and the Respondent No. 1 is deciding the matter. To may mind, the Respondent No. 1 had no jurisdiction to decide the said appeal having not been appointed by the Chief Election Commissioner for the said purpose.
Now I have already referred to the material contents of the order dated 12.12.2005 of my learned brother Nasim Sikandar J. acting as a Member, Election Commission, whereby the election of the said respondent was declared to be void and a re-election was ordered on the precise ground that the Respondent No. 4 was not possessed of the requisite qualifications. Now the entire basis of the structure sought to be raised in the said contentions of the learned counsel for the contesting respondents is the document Annex: R/1 to the written statement filed by them. It is Sanad-ul-Faragh purporting to have been issued by "Madrasa Al-Quranul Aarabia Bahar-ul-Aloom, Shikarpur, Sindh, Pakistan". According to the date mentioned in the document with reference to the lunar calendar it was issued somewhere in September, 2004. Now in para-12 of the judgment in the case of Sanaullah Khan and others v. District Returning Officer, Mianwali and others (P.L.D. 2005 SC 858), with reference to an earlier judgment in the case of Maulana Abdullah v. Returning Officer and others (2003 S.C.M.R. 195), a list of the Deeni Madaris approved by the University Grants Commission (now Higher Education Commissioner) has been given. I may further note here that a detailed text of notification dated 25.7.2002 issued by the Election Commission of Pakistan stand reproduced in Para-5 of the judgment delivered by my learned brother Muhammad Jehangir Arashad J. in the case of Khawaja Ghulam Rasool Kureja and others v. Returning Officer and others (2006 YLR 138). The list is the same. The said "Madrasa Al-Quranul Aarabia Bahar-ul-Aloom, Shikarpur, Sindh, Pakistan" does not find any mention in the said list of the Madaris approved by the said Commission.
Now it is being stated by the learned counsel for the respondents that as per directions contained in the letter dated 8.12.1991 of UGC he appeared in the B.A. Examination in September, 2005 and was declared passed in the same by the University at Khairpur. The said document is Annexure R/4 to the written statement. It narrates that the Sanad "Shadat-ul-Almiya Fil Uloomia Arabia Wal Islamia" is recognized as equivalent to M.A. Arabic/Islamic Studies for the purpose of teaching Arabic/Islamic Studies in Colleges/Universities and for perusing higher studies in Arabic/Islamic Studies. The said contention of the learned counsel looses sight of the fact that according to the said University at Kharipur, the Sanad (Annex: `R/2) is equivalent to BA. (Pass) Part-II. Going by the contention of the learned counsel, a degree of M.A., ought to have been awarded to his client upon his said achievement. So far as the result statements Annexes: "R/6" and "R/7" certifying that the said certifying that the said Respondent No. 4 has passed the B.A. (Pass) part-II (Oriental Group) Annual Examination is concerned, the same would be of no help to the said respondents. The reason being that the very basis of the said exercise undertaken by the said University and the said respondent stands knocked out as the Sanad itself has not been issued by any Madrasa approved by the UGC or HEC. Once the said Sanad is found to be invalid, there in no question of a person passing B.A. Examination regarding whom it has been held as a fact that he is not a matriculate.
The writ petition accordingly is allowed and the impugned order dated 22.2.2006 of the Respondent No. 1 accepting the nomination papers of Respondents Nos. 4 and 5 is set aside being without lawful authority and void. No orders as to costs.
A copy of this judgment be immediately sent to the Secretary, Election Commission of Pakistan, Islamabad, as also the District Returning Officer, Muzaffargarh.
(M. Ajmal Rana) Petition allowed.
PLJ 2006 Lahore 1139
Present: Jawwad S. Khawaja, J.
FEROZE DIN and others--Petitioners
versus
JAN BIBI WIDOW through legal representations and others--Respondents
C.R. Nos. 2125, 837, 858 and 2164 of 2005, heard on 13.4.2006.
(i) Specific Relief Act, 1877 (I of 1877)--
----S. 22--Civil Procedure Code, (V of 1908), S. 115--Three claimants of one property--Respondents filed suit for possession on the bars of sale deed, suit for specific performance of the agreement to sell and declaratory suit claiming purchase of same through agreement and seeking prayer that sale-deed performance was void--Consolidated decisions by Courts below--Suit for possession dismissed by trial Court but decreed by appellate Court--Suit of specific decreed by trial Court but dismissed by appellate Court--Suit of declaratory suit has been dismissed concurrently by both Courts--Assailed--Validity--Agreement to sell has been duly proved through the testimony of marginal witnesses--Agreement and the rights vested corroborated by other material on record--Documentary evidence produced by(F) supported by testimony of his witnesses and his possession over the disputed shop, provided the strongest proof of his case--In the circumstances, and the inconsistency therein noted by Courts blow, could not have been non-suited. [Pp. 1142, 1143 & 1444] A, B, C, D & E
(ii) Specific Relief Act, 1877 (I of 1877)--
----S. 22--Determination title of possession--No explanation as to the manner and time when the disputed shop was delivered to (b) Ali--An ambiguous reference to constructive possession without indicating as to who was unphysical possession of the shop or the nature of the constructive possession claimed by "Mr. B.A."--The witnesses produced have not been able to prove that the disputed shop was occupied by a tenant (N.D) or that (F) was not in possession when the agreement was executed--Discretionary relief of specific performance, as evisaged by S. 22 of the Specific Relief Act--Agreement in favour of (F) is almost 18 years prior in time to the agreement (Exh.-D) in favour of (B-F) has proved himself to be in possession based on P-2--In such view of the matter, specific performance of the agreement (Exh.-D) could not have been allowed even if "B" had been honest and truthful. [P. 1145] F, G & H
(iii) Specific Relief Act, 1877 (I of 1877)--
----S. 22--Right over disputed shop--It has been overed that (Mr. B.A.) was in possession of the disputed shop as a tenant--(A) had instituted proceedings before the Rent Controller for ejectment of the tenant and an ejectment order had been passed against (Mr. B.A.)Ejectment order had been obtained by "A" ex-parte against (Mr. B.A.) whereafter he attempted to enforce the same against (F) through execution proceedings--Rent Controller dismissed executor proceedings holding that "F" could not be disposed in creation of an order which had been passed against (Mr. B.A.)--He had died well before the ejectment order--Sale-deed (Exh. D) itself has not been proved as required by law--Only one of the marginal witnesses, thereto, who is relative of "A" was examined in proof--Held: (F) was in occupation of the disputed shop when sale-deed (Exh. D) was allegedly executed by (N.D) in favour of A and that ejectment petition against (Mr. B.A.) had been moved to take possession of the disputed shop--They have not only failed to prove to cases respectively set up by them, but they have also positively been shown to be false and dishonest--Unfortunately, Courts below have adopted un-even standards while evaluating the cases of contesting parties--In circumstances the impugned appellate decree was set aside--Suit for possession filed by "A" and suit filed by "B" dismissed while suit filed by "F" decreed--Order accordingly.. [Pp. 1145 & 1146] I, J, K, L, M, N & O
Mr. Ghulam Sabir Khan Kaifi, Advocate for Petitioners.
Syed Ijaz Qutab, Advocate for Respondent No. 2.
L.Rs. of Respondent No. 1 and Respondents Nos. 3 to 6 ex-parte.
M/s. M. Shahzad Shaukat and Qazi Muhammad Arhsad Bhatti, Advocate for Barkat Ali etc. (Petitioner in Cr. 837 of 2005).
Date of hearing : 13.4.2006.
Judgment
Through this judgment I propose to decide the present revision petition and connected C.R. Nos. 837/2005, 858/2005 and 2164/2005 because these petitions arise out of consolidated judgments of the learned trial Court dated 24.6.2000 and of the learned Appellate Court dated 6.4.2005 whereby three suits, details of which appear below, were decided.
In order to appreciate the controversy arising between the parties, it is necessary to set out, in brief, the facts giving rise to these revision petitions. It is common ground between the parties to these petitions that Shop No. B-II-58-64 which is the property in dispute between them, was owned by one Nawab Din (now represented by his (L.Rs.) There are three sets of claimants to the disputed shop, namely, Barkat Ali and Muhammad Rafiq (petitioners in C.R. 837/2005), Abdul Rashid (Respondent No. 2 in this petition) and Feroze Din (the petitioner in the present petition). It is these claimants who filed their separate suits to establish the rights respectively asserted by them in the disputed shop.
Barkat Ali claimed that Nawab Din had executed an agreement (Exh. D-41) dated 30.6.1980 whereby he agreed to sell the shop in question to him. On 14.10.1981 Barkat Ali filed a suit seeking specific performance of the agreement (Exh. D-41). He averred that constructive possession of the disputed shop was delivered to him. No particulars, however, were set out in the plaint as to who was in physical possession of the shop or the manner in which constructive possession of the same was delivered to him. Barkat Ali also prayed for cancellation of the sale-deed (Exh. D-6) dated 9.7.1980 in favour of Abdul Rashid.
Abdul Rashid filed a suit on 18.12.1989 seeking possession of the disputed shop on the basis of his purported title under the sale-deed (Exh. D-6) allegedly executed in his favour by Nawab Din. Abdul Rashid also asserted that he was a bona fide purchaser of the disputed shop. As to possession, his case was that one Bashir Ahmad Nizami was a tenant in occupation of the shop, whose ejectment was being sought by him through the competent forum. The possession of Feroze Din over the shop was expressly denied. These averments appear in the plaint and Abdul Rashid's written statement in the suit filed by Feroze Din.
The third suit was filed by Feroze Din who sought declaration of title in the shop claiming that he had purchased the same from Nawab Din. Feroze Din also made a prayer to the effect that the sale-deed (Exh. D-6) in favour of Abdul Rashid was void and ineffective against him. By way of consequential relief he sought a permanent injunction to restrain Abdul Rashid from interferring in his possession. To support his case, he relied on a registered irrevocable general power of attorney (Exh. P-1) dated 3.9.1965 and on a receipt/agreement (Exh. P-2) dated 5.6.1962 executed by Nawab Din in favour of Feroze Din and one Mehnga jointly. Although Exh. P-2 has been given the form of a receipt it also contains terms which make it an agreement.
The three suits, mentioned above, were consolidated. In all 21 consolidated issues were framed on which the parties led evidence. Feroze Din examined 17 witnesses and produced documentary evidence including the registered power of attorney (Exh. P-1) and the agreement (Exh. P-2). Exh. P-3 to Exh. P-7 which are receipt to prove purchase of claims by Feroze Din were also produced by him. Abdul Rashid appeared as DW-6 and produced four other witnesses (DW-2 to DW-5) to support his case. He produced Exh. D-1 to Exh. D-40 as documentary evidence to substantiate his case. Barkat Ali appeared as DW-12 and produced DW-7 to DW-11 to establish his claim. The Agreement to Sell (Exh. D-41) whereby Nawab Din purportedly contracted to convey the shop to him was the only document produced by Barkat Ali. The L.Rs. of Nawab Din supported the case set up by Feroze Din.
The suit filed by Feroze Din has concurrently been dismissed by both Courts below. The suit for specific performance filed by Barkat Ali etc. was decreed by the learned trial Court but has been dismissed in appeal. The suit for possession filed by Abdul Rashid, which had been dismissed by the learned trial Court, was decreed in appeal. It is, in these circumstances, that Feroze Din and Barkat Ali etc. have filed the present revision petitions.
I have gone thorough the record with the assistance of learned counsel for the three contesting parties named above and first take up for consideration the case of Feroze Din. The agreement to sell (Exh. P-2) dated 5.6.1962 has been duly proved through the testimony of the two marginal witnesses, namely, Allah Ditta, who appeared as PW-2 and Mukhtar Ali (PW-6), who was the nephew (bhatija) of Nawab Din. The veracity of these witnesses has not been impeached. It is clear, therefore, that Feroze Din alongwith Mehnga (now represented by his L.Rs.) were the vendees of the disputed shop as per agreement (Exh. P-2). At this point I need to note that through Exh. P-2 Nawab Din acknowledged receipt of the entire consideration and also agreed that when proprietary rights (haqooq malkana) were transferred to him, he would be obliged to register a conveyance in favour of Feroze Din and Mehnga.
The agreement (Exh. P-2) and the rights vested in Feroze Din pursuant thereto are corroborated by other material on record. Firstly the L.Rs. of Nawab Din have accepted the case set up by Feroze Din. Secondly Exh. P-3 to Exh. P-7 referred to above, also establish the interest of Feroze Din in the disputed shop. Thirdly, for reasons discused later in this Judgment, I have found conclusively that Feroze Din is in possession of the disputed shop and was also in possession in 1980 when the alleged agreement (Exh. D-41) in favour of Barket Ali etc., and the alleged sale-deed (Exh. D-6) in favour of Abdul Rashid were made. Feroze Din's possession provides strong corroborative evidence of the authenticity of the agreement (Exh. P-2) and the rights thereby created in favour of Feroze Din.
Now I come to the reasons which prevailed with the learned Courts below for disregarding the agreement (Exh. P-2) and for non-suiting Feroze Din. It has been firstly observed by the learned trial Court that the L.Rs. of Mehnga have, in their written statement, denied that Mehnga had any title or interest in the disputed shop. This averment made in the pleadings, however, has no legal bearing in the case. None of the L.Rs. of Mehnga appeared in the witness box to testify on oath. The averment made in the written statement, therefore, cannot be treated as evidence against Feroze Din or for disproving the agreement (Exh. P-2). This is particularly so in view of the testimony of the marginal witnesses of the agreement (Exh. P-2), namely, Allah Ditta (PW-2) and Mukhtar Ali (PW-6). The written statement of the L.Rs. of Mehnga, however, means that these L.Rs. do not assert any interest in the suit property.
The documentary evidence (Exh. P-1 to Exh. P-7) has been summarily brushed aside by the learned Courts below on the basis of one sentence in Feroze Din's testimony which has been read out of context. Feroze Din appeared in Court on 9.5.1990 when his statement was recorded as PW. 12. He deposed that there was delay in the transfer of proprietary rights and a power of attorney was obtained from Nawab Din in favour of Mehnga to obviate dependence on Nawab Din for the purpose of effecting transfer of the shop. The learned Courts below have held that this testimony was, by itself, enough to demolish the entire case set up by Feroze Din regardless of the remaining oral evidence and the documents (Exh. P-1 to Exh. P-7) adduced by him. The conclusion of the learned Courts below is based on the fact that proprietary rights were actually transferred to Nawab Din vide PTD (Exh. D-1) dated 21.3.1963 and, therefore, the statement by Feroze Din that the power of attorney (Exh. P-1) which is dated 3.9.1965 had been obtained because proprietary rights had not been conferred on Nawab Din is incorrect.
There are a number of reasons why the apparent inconsistency in the testimony of Feroze Din is not sufficient to non-suit him. Firstly it may be noted that Foreze Din was testifying almost 25 years after the execution of the power of attorney (Exh. P-1) and 28 years after the agreement (Exh. P-2). It was not expected of him to remember the details of events which took place so many years earlier. At this point, it is worth noting that when the bargain was struck between Feroze Din and Nawab Din (as evidenced by Exh. P-2) proprietary rights had not as yet, been transferred to Nawab Din. This could easily have caused the inconsistency in Feroze Din's testimony. Secondly the learned Corus below have ignored the material part of his testimony that the power of attorney (Exh. P-2) had been obtained from Nawab Din to eliminate dependence on Nawab Din. Most importantly, however, nothing turns on the statement of Feroze Din, referred to above. The power of attorney (Exh. P-2) is a registered document and has been properly exhibited on record. It is not the case of any of the consisting parties that the power of attorney was not executed by Nawab Din. In any event Exh. P-2 merely corroborates the stance of Feroze Din. It is not in itself a conveyance. The documentary evidence produced by Feroze Din supported by the testimony of his witnesses and his possession over the disputed shop, provide the strongest proof of his case. In the circumstances, even in the light of Feroze Din's testimony and the inconsistency therein noted by the learned Courts below, he could not have been non-suited.
Lastly, the inconsistency in Feroze Din's testimony has to be weighed against the utter lack of probity in the pleas raised by Abdul Rashid and Barket Ali, the other two claimants to the shop. In this context the most crucial aspect of the case viz. possession of the shop, needs to be considered. Feroze Din is in possession of the shop in question. Abdul Rashid and Barkat Ali have not been able to show to the contrary. Even the decree for possession granted to Abdul Rashid by the Appellate Court notes this fact and grants him the right to obtain possession from Feroze Din. Since there is nothing on record to show that Feroze Din was occupying the shop as a tenant or, in some similar capacity, the very fact of possession further supports the case of Feroze Din that he had purchased the shop from Nawab Din . This is particularly so in the contest of the pleadings of Abdul Rashid and Barkat Ali etc., (considered below) read with the evidence respectively produced by them.
The case setup by Barket Ali, etc., as averred in their plaint, is significant. Paragraph 2 thereof is reproduced as under:--
"2. That the Defendant No. 1 [Nawab Din] executed an agreement to sell the above mentioned property in favour of the plaintiff for a consideration of Rs. 25,000/- Rs. 2,000/0 were paid in advance when the bargain was struck and Rs. 20,000/- were paid as earnest money on 30.6.1980 when the agreement to sell was executed in favour of the plaintiff. The possession of the property in dispute was also delivered to the plaintiff and since then the plaintiff is in the constructive possession of this property, as such the plaintiff has paid Rs. 22,000/- to the Defendant No. 1 and the Defendant No. 1 was bound to execute the sale-deed in favour of the plaintiff till [sic]"
As in the plaint, no mention hs been made as to who was the tenant in possession of the shop. The witnesses produced by Barkat Ali have not been able to prove that the disputed shop was occupied by a tenant of Nawab Din or that Feroze Din was not in possession when the agreement (Exh. D-41) was executed. In these circumstances, there can be no proof of any adornment in favour of Barkat Ali or the delivery of constructive possession to him as alleged in his plaint. For another reason also Barkat Ali's story lacks credibility. I do not find it possible to believe that he paid almost the entire consideration as averred by him without obtaining either title to the disputed shop or its possession. The cumulative effect of these facts leaves me in no manner of doubt that the case set up by Barkat Ali was false. This alone was sufficient to deny to him, the discretionary relief of specific performance, as envisaged by Section 22 of the Specific Relief Act. Before concluding my discussion on Barkat Ali's case, it needs to be noted that the agreement (Exh. P-2) in favour of Feroze Din is almost 18 years prior in time to the agreement (Exh. D-41) in favour of Barket Ali etc. Furthermore, Feroze Din has proved himself to be in possession based on Exh. P-2. In this view of the matter, specific performance of the agreement (Exh. D-41) could not have been allowed even if Barkat Ali had been honest and truthful.
Now I take up for consideration the case of Abdul Rashid. As noted above, in his plaint and also in paragraph-4 of his written statement in the suit filed by Feroze Din, it has been averred that one Bashir Ahmad Nizami was in possession of the disputed shop as a tenant under Nawab Din. It was also stated that he (Abdul Rashid) had instituted proceedings before the Rent Controller for ejectment of the tenant and that an ejectment order has been passed against Bashir Ahmad Nizami on 18.1.1982. The contents of Paragraph-6 of Abdul Rashid's plaint are also significant. It is alleged therein the Feroze Din and the L.Rs. of Mehnga were neither tenants under Nawab Din nor did they have any other right over the disputed shop. Significantly, it was asserted that they had occupied the shop illegally. No particulars were given as to when and how Feroze Din had taken possession of the shop.
Learned counsel for Abdul Rashid, however, referred to the ejectment petition (Exh. D. 30) in which it has been stated that Bashir Ahmad Nizami was occupying the shop as a tenant under Nawab Din and that a notice under Order 13-A of the Urban Rent Restriction Ordinance, had been issued to the said tenant after Abdul Rashid had acquired title through the sale-deed (Exh. D. 6) He also referred to the ejectment order passed against Bashir Ahmad Nizami, in his attempt to show that this person rather that Feroze Din, was in possession of the disputed shop at the time he purchased it. Feroze Din, I may add, had acknowledged that Bashir Ahmad Nizami was, at once time, a tenant in the disputed shop but deposed that the had vacated the same many years earlier.
In the circumstances, learned counsel for Abdul Rashid was asked to explain as to how and when Feroze Din came to occupy the shop. He was unable to do so. It is in fact evident from the order of the Rent Controller dated 14.10.1982 that the ejectment order dated 18.1.1982 had been obtained by Abdul Rashid ex parte against Bashir Ahmad Nizami whereafter he had attempted to enforce the same against Feroze Din through execution proceedings. The learned Rent Controller dismissed the execution petition filed by Abdul Rashid while holding that Feroze Din could not be dispossessed in execution of an ejectment order which had been passed against Bashir Ahmad Nizami. It is also worth noting, as acknowledged in Abdul Rashid's plaint, that Bashir Ahmad Nizami had died well before the ejectment order. Since there is no evidence available on record to show when Bashir Ahmad Nizami had died, it is possible that his death had taken place even prior to the filing of the ejectment petition.
The only inference, which can reasonably be drawn from these facts, is that Feroze Din was in occupation of the disputed shop when the sale-deed (Exh. D 6) was allegedly executed by Nawab Din in favour of Abdul Rashid and that the ejectment petition against Bashir Ahmad Nizami had been moved as a devious and underhand device by Abdul Rashid to take possession of the disputed shop.
Since Feroze Din was in possession but was not a tenant of Nawab Din as admitted by Abdul Rashid in his plaint, notice must be imputed to him of Feroze Din's interest in the disputed shop and he was thus put to inquiry which he did not undertake. It follows that Abdul Rashid cannot claim to be a bona fide purchaser of the disputed shop as asserted by him. This is quite apart from the fact that the sale-deed (Exh. D-6) itself has not been proved as required by law. Only one of the marginal witnesses thereto, namely, Arif Hussain, who is a relative of Abdul Rashid, was examined in proof. Furthermore, even the person who purportedly identified Nawab Din before the Sub-Registrar has deposed that when the appeared before the Sub-Registrar for identifying Nawab Din the sale-deed was returned without being registered. This witness also deposed that he was not present when the sale-deed was subsequently presented for registration and was, therefore, unable to say who had presented the document for registration.
Having considered in detail the respective claims asserted by Feroze Din, Abdul Rashid and Barkat Ali etc., I have reached the inescapable conclusion that Abdul Rashid and Barket Ali etc. have not only failed to prove the cases respectively set up by them, they have positively been shown to be false and dishonest. On the other hand, Feroze Din has been able to prove his case. Even if there was an inconsistency in his testimony (referred to by the learned Courts below and noted in Para 11 above), such inconsistency was not of a nature which could discredit, in its entirety, the testimony of Feroze Din and his witnesses or which could negate the documentary evidence (Exh. P1 to Exh. P7) produced by him. In any event, even if the Courts below had found this inconsistency to be material, they were obliged to weigh the cases set up by the three competing claimants to the shop, and to determine, on balance, which party had the more plausible case. Had this been done, Feroze Din undeniably would have succeeded on the basis of the available evidence which preponderantly, indeed overwhelmingly, favours him as against the other two contestants.
Unfortunately, the learned Courts below have adopted uneven standards while evaluating the cases of the three contesting parties. When considering the case of Feroze Din, they have applied the most stringent and exacting standard of proof to non-suit him. On the other hand glaring and patent lack of probity, as discussed above, on the part of Barkat Ali has been ignored by the trial Court and similar want of honesty on the part of Abdul Rashid has been glossed over by the appellate Court.
Before parting with this judgment, I need to address a preliminary objection raised by learned Counsel for Abdul Rashid against the maintainability of Feroze Din's case. He argued that the declaratory suit filed by Feroze Din was liable to be dismissed because he has not been able to prove conveyance of title in his favour. This argument was advanced on the basis that a mere agreement did not create title in favour of Feroze Din. Even if this contention is accepted, Feroze Din's suit was not liable to be dismissed because he had sought other reliefs which could have been granted. Feroze Din had sought a permanent injunction to restrain Abdul Rashid from interfering in his possession and had also prayed that the sale-deed (Exh. D-6) be declared ineffective to the extent of his rights in the disputed shop and inoperative against him. Through the evidence produced on record. Feroze Din has proved his entitlement to these two prayers. Abdul Rashid is, therefore, restrained permanently from interfering in Feroze Din's possession over the disputed shop, on the basis of the sale-deed (Exh. D-6). It is also held that the said sale-deed is inoperative against Feroze Din. There is another reason why the objection raised on behalf of Abdul Rashid cannot be allowed. Through this judgment, the suit for possession filed by Abdul Rashid has been dismissed. The sale-deed (Exh. D-6) has also been held to be inoperative against Feroze Din. In the circumstances, Abdul Rashid has no locus standi to raise the aforesaid objection. Only Nawab Din could have questioned the maintainability of a declaratory suit on the basis that title had not been conveyed. The LRs. of Nawab Din, however, have chosen not to do so.
To sum up the foregoing discussion, the impugned appellate decree is set aside and the suit for possession filed by Abdul Rashid is dismissed. The suit filed by Barkat Ali, etc. also stands dismissed. The suit filed by Feroze Din is decreed to the extent that the other parties are restrained from interfering in his possession and the sale-deed (Exh. D-6) is held to be ineffective and inoperative against Feroze Din.
Feroze Din shall also be entitled to his cross throughout.
(M. Ajmal Rana) Order accordingly.
PLJ 2006 Lahore 1148
Present: Muhammad Muzammal Khan, J.
ALLAH DITTA etc.--Petitioners
versus
RAEES etc.--Respondents
C.R. No. 2330 of 2004, decided on 14.4.2006.
Punjab Pre-emption Act, 1913 ( I of 1913)--
----S. 13--Constitution of Pakistan, 1973--Art. 199----Performance of Talbs--Held: Petitioners had gained knowledge of sale but they did not perform "Talb-i-Muwathibat", at the time--Performance of the alleged "Talb-i-Ishhad" was not proved and it was also beyond the time prescribed by the Punjab Pre-emption Act--Petitioner failed to prove the performance of "Talbs" and their pre-emptive right, if any, stood extinguished by operation of law--Revision dismissed. [P. 1150] A
Mian Muhammad Athar, Advocate for Petitioners.
Malik Noor Muhammad Awan, Advocate for Respondents.
Date of hearing : 14.4.2006.
Order
Instant civil revision assailed the judgments/orders dated 21.6.2003 and 24.4.2004 passed by the learned Civil Judge and the learned Additional District Judge Hafizabad whereby suit of the petitioners for possession through pre-emption and their appeal were dismissed, respectively.
Succinctly, relevant facts are that the petitioners filed a suit for possession through pre-emption against the sale of suit land in favour of the respondents effected through registered sale-deed No. 607 dated 18.11.1998, claiming their superior pre-emptive right being "Shafi Sharik", "Shafi Khalit" and "Shafi Jar" quo the respondents who were pleaded to have kept the sale in graded secret. Petitioners further averred that they gained knowledge of sale in question on 3.3.1999 at about 12.00 noon through Muhammad Akhtar Javed in presence of Allah Ditta son of Muhammad Ameer and they instantly performed "Talb-i-Muwathibat" in the same "Majlis" and thereafter on 4.3.1999 performed "Talb-i-Ishhad" through notice remitted under registered cover acknowledgement due and then by filing the suit, fulfilled the requirement of "Talab-e-Khashumat".
Respondents being defendants in the suit contested the same by filing their written statement wherein they raised certain preliminary objections regarding estoppal, locus standi, improvement of suit property and maintainability of suit etc. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge who was seized of the suit, after doing the needful, dismissed the suit of the petitioners vide his judgment and decree dated 21.6.2003.
Petitioners aggrieved of the decision of the trial Court, filed an appeal before the learned Additional District Judge but remained unsuccessful as the same also failed on 24.4.2004. Petitioners, thereafter, filed instant revision petition and the respondents in response to notice by this Court, have appeared and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Petitioners had pleaded in their plaint that they gained knowledged of the sale on 3.3.1999 at 12.00 through Muhammad Akhtar Javed when they while sitting in the same "Majlis" expressed their intention of pre-empting the suit land and thus, performed "Talb-i-Muwathibat", with all promptitude. The petitioners in order to prove their case, produced seven witnesses besides documentary evidence. Muhammad Ghafar (PW.1) Post Man/Record Keeper was produced to prove postal receipt Ex. P. 1, showing dispatch of registered envelope but he was not the maker of the receipt and in absence of original record of the Post Office concerned, his deposition was of no help to the case of the petitioners especially when he admitted that the relevant record has been destroyed. Nazar Abbas Sargana, Advocate, PW.2 was produced to prove notice of "Talb-i-Ishhad". According to this witness, he dictated notice of "Talb-i-Ishhad", which was signed by the petitioners and the witnesses. This witness further deposed that he got the notice dispatched through clerk.
The original notice of "Talb-i-Ishhad" alleged to have been served on the respondents was neither required to be produced through process of the Court nor the same was available for its confrontation to the scribe (PW.2) or its witnesses. In absence of original notice of "Talb-i-Ishhad", the same could not be said to have been proved by producing copy thereof and that too; without seeking permission of the trial Court to lead secondary evidence.
PW.3 Akhtar Javed is the informer who allegedly conveyed the information of sale to the petitioners whose statement regarding time, date and place of performance of "Talb-i-Muwathibat" by the petitioner on 3.3.1999 coincided with the depositions of PW.4 and PW.6 but the entire case built by the petitioners is pulled to the ground even by ignoring the material contradictions/discrepancies in the statement of PWs Nos. 4 and 6 already pointed out in the impugned judgments when the Jamabandi produced by the petitioner as Ex. P.7 is looked at Ex. P.7 was undeniably issued by the revenue patwari on 23.2.1999 i.e. after the sale-dated 18.11.1998, which was appended with the plaint. This copy of the Jamabandi was issued in the name of Allah Ditta, Petitioner No. 1/pre-emptor who is real paternal uncle of the Petitioners Nos. 2 & 3 and the pre-emptors in the other suit and was allegedly present on 3.3.1999 at the time of performance "Talb-i-Muwathibat". This jamabandi was produced in both the suits, one by the petitioners and the other by Muhammad Daud and another which left no room to conclude that the petitioners were not aware of sale in question, at least on 23.2.1999 when this copy of the revenue record was got issued. Respondents while cross examining the one of the pre-emptors Sana Ullah who had appeared as PW.7, specifically enquired about issuance of copies of the revenue record but he did not explain as to why the same was got issued through Allah Ditta on 23.2.1999. Similarly, it could not be denied that one Nusrat Ijaz, a co-sharer/relation of the petitioners filed a suit for permanent injunction on 4.7.1999 specifically detailing the sale-deed dated 18.11.1998 in Para No. 2 of the plaint wherein the Petitioners Nos. 2 & 3 were arrayed as parties as Defendants Nos. 8 and 9. PW. 3 admitted in his cross-examination that Nusrat Ijaz who had filed the suit for permanent injunction, is his real brother which means that statement of PW.3 regarding gaining of knowledge of sale on 3.3.1999 was not correct. Both the documents Ex. P. 7 and Ex. D. 3 proved beyond any shadow of doubt that the petitioners had gained knowledge of sale at least on 23.2.1999 but they did not perform "Talb-i-Muwathibat" at that time. Performance of the alleged "Talb-i-Ishhad" if calculated from the date of issuance of Ex. P.7, the same was not proved, as noted above but was also beyond the time prescribed by Section 13 of the Punjab Pre-emption Act, 1913. Scan of evidence and judgments of the two Courts below revealed that lis was correctly concluded by them and the petitioner could not prove performance of "Talbs" according to Law and their pre-emptive right if any, stood extinguished by operation of law.
For the reasons noted above, none of the Courts below committed any illegality/irregularity in absence of which no interference in revisional jurisdiction is permissible under law and instant revision being meritless, is dismissed with no order as to costs.
(Fozia Fazal) Revision dismissed.
PLJ 2006 Lahore 1150
Present: Syed Hamid Ali Shah, J.
RAJA--Petitioner
versus
TANVEER RIAZ and 3 others--Respondents
W.P. No. 10146 of 2004, decided on 28.4.2006.
(i) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24 (2)--Constitution of Pakistan, 1973--Art. 199--Suit for possession through pre-emption--Order passed for depositing Zar-e-Soim--Application for dismissal of suit was rejected--Assailed--Acceptance of--Petition against--Zar-e-Soim of sale price was to be deposited within 30 days of filing suit, therefore, 30-days period would be reckoned from the day of filing of suit--Period cannot be extended. [P. 1152] A
(ii) General Clauses Act, 1897 (X of 1897)--
----S. 10--Punjab Pre-emption Act (IX of 1991) S. 24(2)--Condonation of delay--Illegality on which period of 30-days lapsed was a holiday being Sunday and petitioner was entitled to advantage of one more day, and secondly according to general law regarding computation of time, date of filing suit is to be excluded is not well founded--When special law has provided a period and also the manner of computing period, Provisions of general law are excluded--No illegality with regard to finding of revisional Court on issue of limitation is pointed out--Petition dismissed. [P. 1152] B
Mr. Numan Qureshi, Advocate for Petitioner.
Mr. Abdul Quddous Rawal, Advocate for Respondent No. 1.
Rana Muhammad Arif, Advocate for Respondents Nos. 2 and 3.
Date of hearing : 4.4.2006.
Order
Consequent upon filing this suit for possession through pre-emption, learned Court passed orders dated 10.7.1994 for depositing Zar-e-Soim, within a period of 30 days. Petitioner/pre-emptor deposited Zar-e-Soim, on 2.12.1998 Respondents Nos. 1 to 3, moved application for the dismissal of the suit for non-compliance of order dated 10.7.1994. Learned trial Court dismissed the application vide order dated 25.10.2000. Respondents aggrieved from the order, challenged it in revision before Respondent No. 4. Respondent No. 4 observed that period of 30 days reckons from the day of filing the suit. Respondent No. 4 observing that order dated 9.12.2003 was not complied with accepted the revision petition. The impugned order was set aside, resultantly the suit was dismissed. Hence this petition.
Learned counsel for the petitioner has contended that the day on which the suit was filed has to be excluded from commutation of period of 30 days. Zar-e-Soim was deposited on 9.8.1994, in terms of order dated 10.7.1994. Learned counsel has referred to the case of "Abdul Waheed and others versus Sardar Ali and others" 2000 SCMR 650 to contend that non-compliance or order for deposit of 1/3rd of sale, during the period when Courts remained closed during the month of August, for summer vacation, is not fatal and time is required to be extended. Section 10 of the General Clauses Act, 1897 was referred to contend that if the last day of the prescribed period is holiday, the act and proceedings shall be considered as done or taken on the next date afterwards on which the Court or office is opened. Learned counsel found further support in this respect from the cases of "Muhammad Hayat versus Ahmad Yar" PLD 1986 Lahore 270, "Allah Ditta and another versus Saeed Ahmad" (1991 MLD 581) and "Ghulam Muhammad versus Ghulam Hussain alias Hussain" (2001 YLR 2343).
Learned counsel for Respondent No. 1 has submitted that according to provisions of Section 24(2) of the Punjab Pre-emption Act 1991, the period for deposit of Zar-e-Soim starts from the day of filing suit. Learned counsel while referring to the case of "Mian Asif Islam vs. Mian Shahid Aslam etc." (NLR 1999 Civil 658) has contended that period for deposit of Zar-e-Soim cannot be extended and order for dismissal of suit for non-deposit of Zar-e-Soim, within the stipulated period is not open to interference. Case of "Mian Muhammad Talha Adil versus Mian Muhammad Lutfi" (2006 SCJ 40) was cited in support of contention that period for deposit of Zar-e-Soim reckons from filing of suit and not from date of order/direction for deposit of 1/3rd price.
Learned counsel for Respondents Nos. 2 & 3 adopted the line of arguments, addressed by learned counsel for Respondent No. 1. He however added that writ petition is not competent. The order passed by the Court of competent jurisdiction is not open to challenge through writ jurisdiction. Learned counsel in this respect has referred to the case of "Noor Muhammad vs. Sarwar Khan and 2 others" (PLD 1985 SC 131).
Heard Learned counsel for the parties and perused record.
Plain reading of Section 24(2) of Punjab Pre-emption Act 1991, reveals that 1/3rd of the sale price (Zar-e-Soim) is to be deposited within 30 days of filing the suit, therefore, 30-days period shall be reckoned from the day of the filing of suit. Hon'ble Supreme Court of Pakistan in the above referred case of Mian Asif Islam and Mian Muhammad Talha Adil has held that non compliance of order of trial Court directing the deposit of 1/3rd within 30-days, is sine qua non for attracting penalty under Section 24(2). Period cannot be extended. Petitioner has deposited Zar-e-Soim during vacation and not afterward. He by his conduct is precluded to take advantage of extension in time, due to vacation.
Argument of the learned counsel for the petitioner that as per Section 10 of the General Clauses Act, 1897, the day on which the period of 30-days lapsed was a holiday being Sunday and petitioner was entitled to the advantage of one more day and secondly according to general law regarding computation of time date of filing the suit is to be excluded is not well founded. The Act i.e. Punjab Pre-emption Act IX of 1991 has itself provided the period within which 1/3 rd of sale price is to be deposited. When special law has provided a period and also the manner of computing the period, provisions of general law are excluded. It has been stated that 30th days from filing the suit was Sunday. Zar-e-Soiam was deposited on the next day and same can be considered having been deposited within 30 days. This submission of learned counsel for the petitioner is not correct. Respondents' learned counsel has shown from the diary that 30th day was Monday, which was not a holiday.
The other objection of the petitioner about the revision petition before the Additional District Judge beyond the period of limitation has no force. Court below was dealt with the issue of limitation in filing the revision petition, legally and justly. No illegality was regard to finding of revisional Court on issue of limitation is pointed out.
For the foregoing, the impugned judgment and decree is devoid of any legal infirmity and as such I am not persuaded to unsettle the same. Petition in hand is without any merits and is accordingly dismissed.
(T.S. Faisal) Petition dismissed.
PLJ 2006 Lahore 1153
Present: Syed Hamid Ali Shah, J.
NASIM AHMED KHAN--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, LAHORE and others--Respondents
W.P. No. 16956 of 1995, decided on 24.7.2006.
(i) West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13--Ejectment Petition--Accepted--Assailed--Appeal dismissed of--Proceedings under Rent Restriction Ordinance did not require adherence to strict legal procedure--Seeking ejectment on personal requirement is simple, when statement of landlord proves that he has no other premises in his use in the same municipal area. [P. 1156] A
(ii) West Pakistan Ubran Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13--Constitution of Pakistan 1973--Art. 199--Constitutional jurisdiction--Rent Controller was not bound to follow procedure provided in C.P.C.--Rent Controller can adopt any procedure for fair dispensation of justice, as rent controller is not a Court--Law is settled that till such time Court decides about existence of agreement of sale, same would not be mad the basis for denying right of landlord to receive rent or his claim to seek eviction of tenant--Held: Petitioner has invoked jurisdiction of High Court seeking reappraisal and assessment of evidence, which was not permissible in writ jurisdiction--Writ petition is an extra-ordinary remedy and resolution of complicated questions of facts are beyond the scope of Constitutional jurisdiction--Petition dismissed. [P. 1156] B
Qazi Abdul Hamid, Advocate for Petitioner.
Nemo for Respondents Nos. 1 & 2.
Mr. Sheharyar Kasuri, Advocate for Respondents Nos. 3 to 5.
Date of hearing : 6.3.2006.
Judgment
Father of the respondents, had let the demised premises to the petitioner as far back as in October, 1973. The rent originally agreed between the parties was Rs. 230/- per month, which was enhanced to Rs. 400/- and then to Rs. 500/-. Respondents' predecessor filed ejectment petition against the petitioner asserting therein that the premises are required for personal need and that he has no other residential property at Lahore. The petitioner contested the petition, filed written reply and controverted therein the assertions of the ejectment petition. Various preliminary objections were raised including the one that property has been sold to him through agreement to sell dated 5.1.1986, resultantly the relationship of landlord and tenant has come to an end. It was also asserted in the written reply that property being a scheduled property, in occupation of Lawyer, is being used as office-cum-residence involves the goodwill which petitioner has earned due to consistent use of his office. Learned Rent Controller passed the eviction order on 30.5.1994 and appeal against the eviction order met the fate of dismissal on 30.10.1995, hence this petition.
Learned counsel for the petitioner has contended that ejectment was sought on the ground of personal need of Akhtar Raza, the predecessor of respondents Agha Pervez Raza and Roohi Rizvi. The respondents are permanent residents of Karachi. The original ejectment petition was filed on the personal requirement of deceased Akhtar Raza and for the personal need of his children. The personal need of the predecessor of the respondents abated on his death. Learned counsel in support of his contention has referred to the cases of Mst. Jamila Latif vs. Ghulam Yazdani Khan (1981 SCMR 637). F.B. Davis vs. Mrs. Shakar Khano Bai represented by L.Rs (1986 MLD 1342). Muhammad Shafi and others vs. Muhammad Ilyas (1986 SCMR 451) and Muhammad Aslam (through its L.R) vs. Wazir Muhammad (PLD 1985 SC 46). The petitioner further added that amended ejectment petition was filed on 9.2.1994, after the death of Akhtar Raza. After the death of Akhtar Raza (24.1.1994) the successors of late Akhtar Raza have not asked for ejectment of the petitioner from the premises on their personal need. It was contended that during the proceeding in W.P. No. 4938/1986, a consent order was passed on 22.4.1987, as a result thereof Issue No. 3-A was framed on 8.6.1987. The issue was not framed according to the terms of order dated 22.4.1987 and thus the subsequent proceedings are nullity. Learned counsel has then submitted that learned Rent Controller has non-suited the petitioner on the ground that there was no rebuttal. Conclusion of Rent Controller is erroneous as the legal heirs of Akhtar Raza, present Respondents, have led no evidence, therefore, the question of evidence in rebuttal does not arise. Learned counsel has argued that Issue No. 3-A was framed in view of the order dated 4.10.1986, passed in W.P. No. 4938/1986. The petitioner moved an application before the Rent Controller for permission to produce evidence on newly framed Issue No. 3-A. The evidence was closed illegally. It was lastly contended that no relationship of landlord and tenant exists between the petitioner and Agha Hyder Raza. Mr. Zawar Ahmad, learned Rent Controller has held in order dated 29.5.1991 that relationship of landlord and tenant does not exist. The order was not challenged which attained finality, in view thereof, the proceedings for ejectment are not maintainable.
Learned counsel for the Respondents Nos. 3, 4 & 5 (ii), on the other hand, has fully supported the impugned orders/judgments of Courts below and has submitted that concurrent findings are not open to challenge in writ jurisdiction. Resolution of complicated questions of facts are beyond the scope of constitutional jurisdiction of this Court. Learned counsel in support of his contentions has referred to the cases reported as Haji Said Wahab Khan vs. Amjad Ali and others (2005 SCMR 840), M/s Muhammdia Medical Hall, Khan Arm Dealers through Khurshid Alam vs. Mahmood-ul-Hassan & 3 others (NLR 1982 SCJ 23), and Muhammad Sharif and another vs. Muhammad Afzal Sohail etc. (PLD 1981 SC 246). Learned counsel while referring to the cases of Haji Ibrahim vs. S. Rehmatullah (Represented by L.Rs). (1985 SCMR 241) and Mst. Bashiran Bibi vs. Addl. District Judge and others (1990 CLC 901) to contend that on death of the landlord, an eviction order becomes part of his heritable estate. It was submitted by the learned counsel that determination of the questions regarding ownership or validity of an agreement to sell do not fall within the jurisdiction of Rent Controller and in this respect referred to the cases of Aadil Nadeem Rizvi vs. Gohar Siddique and others (2004 SCMR 738), Muhammad Latif and another vs. Muhammad Afzal and others (2004 SCMR 1614). Waheed Ullah vs. Mst. Rehana Nasim and others (2004 SCMR 1568) and Wahid Ali Khan vs. Sheikh Murtaza Ali and 2 others (2003 SCMR 1416). Learned counsel while referring to the cases of Haji Ibrahim vs. S. Rehmatullah (Represented by L.Rs) (Supra) and Phool Din and another vs. Abdul Majid (1981 SCMR 711) has submitted that eviction petition does not abate on the death of landlord. He summed up his argument by referring to various cases including Hameed Jilani Tiwana vs. Abdul Aziz Ghafoor Khan and 2 others (2005 MLD 1232) and submitted that provision of CPC are not applicable to the proceedings pending before Rent Controller.
Heard learned counsel for the parties and record perused.
The case has a touch of pathos. The respondents/landlords had knocked the door of the Court for simple relief of eviction around a quarter of century ago. Since then in the throes of agony and anxiety the petitioners have failed to seek eviction on the ground of personal requirement. They are deprived of the right to use their property at the alter of technicalities. The ejectment petition was instituted in the month of January, 1986 and more than 21 years have passed but the agony of landlord in seeking the ejectment of tenant on the ground of personal requirement, has not come to an end. His second generation is pursuing the eviction proceeding. The matter was delayed by resorting to procedural technicalities. The proceedings under the Urban Rent Restriction Ordinance do not require adherence to strict legal procedure. Seeking ejectment on personal requirement is even simpler, where the statement of landlord is sufficient for ejectment order provided landlord proves that he has no other premises in his use and occupation in the same municipal area where such building or rented premises is situated.
In view of contents of para 4, reproduced above, it cannot be said that the proceedings on death of predecessor of Respondents Nos. 3 & 4, have abated. Rent Controller is not bound to follow procedure provided in CPC. He can adopt any procedure for fair dispension of justice. He has to see the bonafide of landlord and the inquiry through evidence in this respect. Provisions of CPC as well as Qanun-e-Shahadat Order, 1984 do not apply strictly as Rent Controller is not a Court. Reference in this respect can be made to the cases of Hameed Jilani Tiwana (Supra), (Haji Khudai Nazar and another vs. Haji Abdul Bari (1997 SCMR 1986) and Ch. Muhammad Akmal vs. Faisal Saeed Mirza and others (2004 CLC 862). Thirdly, it is settled law that need of landlord is the need of his family. Personal need does not extinguish on the death of landlord. Court in order to avoid multiplicity of proceedings and to shorten the litigation can mould relief according to the circumstances of the case, while holding so I find support from case of Haji Ibrahim (supra).
It has been submitted that Respondents Nos. 4 & 5 are settled permanently in Karachi and do not require premises for their personal use and occupation. The submission has no force. The predecessor of Respondents Nos. 4 & 5 has asserted in the ejectment petition that they have temporarily shifted to the house of their relative Mr. Hashim Raza and their host is unable to accommodate them further. Eviction proceedings have taken unreasonable long course, for which they could not stay with their relative and shifted to Karachi. Mere shifting to another town due to non-availability of adequate accommodation, does not disentitle the landlord to seek eviction of tenant from their premises.
The evidence of the petitioner was rightly closed as a direction for the final disposal of the case was given by the Appellate Court and Court while proceeding as per remand order provided an opportunity to the petitioner for production of the evidence, which the petitioner has not availed. As observed earlier, a considerable delay has been caused and yet there was no final decision. The arguments of the learned counsel for the respondent are well founded on the premises that a Rent Controller is not competent to determine the issues regarding ownership or agreement to sell. The law is settled that till such time the Court of competent jurisdiction decides about the existence of agreement of sale, the same should not be made the basis for denying the right of the landlord to receive rent or his claim to seek eviction of the tenant. There is plethora of judgments on this issue. If any case is needed, reference can be made to the cases of Aadil Nadeem Rizvi (Supra), Muhammad Latif (Supra), Waheed Ullah (Supra), Wajid Ali Khan (Supra), Iqbal and 6 others vs. Mst. Rabia Bibi and another (PLD 1991 SC 242), Allah Yar and another vs. Addl. District Judge and others (1984 SCMR 741) and Allah Ditta vs. Muhammad Sarwar (1991 MLD 1335).
Various grounds raised in this writ petition relate to the factual controversy. The petition has invoked jurisdiction of this Court seeking reappraisal and assessment of evidence, which is not permissible in writ jurisdiction. Writ petition is an extra-ordinary remedy and the resolution of complicated questions of facts are beyond the scope of constitutional jurisdiction.
The remedy of appeal which the statute has not provided to a litigant cannot be availed through invoked the writ jurisdiction. The Hon'ble Supreme Court of Pakistan in the case of Haji Said Wahab Khan (Supra) has observed that interference in the concurrent findings must not be made under Article 199 of the Constitution.
For the foregoing this writ petition has no merit and the same is dismissed with costs throughout. However, the petitioner is given two months time for handing over the vacant possession of rented premises, to the respondents.
(M. Ajmal Rana) Petition dismissed.
PLJ 2006 Lahore 1157 [Rawalpindi Bench Rawalpindi]
Present: Sayed Zahid Hussain, J.
MUHAMMAD MEER HABIB--Petitioner
versus
DISTRICT JUDGE, ISLAMABAD and 2 others--Respondents
W.P. No. 493 of 2006, heard on 7.6.2006.
Limitation Act, 1908 (IX of 1908)--
----S. 9.--Constitution of Pakistan, 1973, Art. 199--Suit for recovery of dowry articles, decreed--Appeal dismissed--Assailed--When the time runs out each days' delay is to be explained--No illegality committed in declining the condonation of delay by appellate Court--Interference not warranted in writ jurisdiction--Petition dismissed. [P. 1159] A & B
Mr. Khan Baig Janjua, Advocate for Petitioner.
M/s. Dildar Hussain Meer, Advocate and Zafar Hussain Meer, Advocate for Respondents.
Date of hearing : 7.6.2006.
Judgment
Marriage between the parties which took-place in June 2004 could not survive long and ended in dissolution thereof. A suit for recovery of dowry articles worth Rs. 525,250/- was filed by Respondent No. 3 which was decreed by the Family Court on 27.7.2005. The petitioner being aggrieved of the same, filed appeal which was dismissed by the learned Appellate Court on 28.1.2006. Since the appeal was admittedly barred by time, application for condonation of delay had been filed by the petitioner but the delay was not condoned by appellate Court. Consequently the appeal was dismissed as barred by him.
The learned counsel for Respondent No. 3 supports the appellate judgment.
"According to the affidavit furnished by Mr. Khan Beg Janjua Advocate, he remained ill from 22.7.2005 to 5.8.2005, but this fact is of no help to the appellant, as the copy was applied on 26.8.2005 i.e. after 21 days of the recovery of the counsel as till the delay which is sought to be condoned is from 10.9.2005 to 20.9.2005 and nothing has been placed on record to substantiate that the learned counsel for the appellant was ill during the above said span of time and was not in a position to file the appeal, in time. Moreover, the question arises that if the attorney was at Lahore, then how she received certified copy of the judgment and decree. This fact by itself takes out the bottom from the version of the appellant. Similarly, nothing has been annexed with the affidavit of the attorney that she was away to Lahore. Even it she was at Lahore, she could instruct her counsel on phone or through other modes to apply for copy and obtain the same and prepare the appeal and through courier service, memorandum of appeal etc. could be sent to her at Lahore for signature, but all this lacking. No proof of illness of the sister of the attorney or traveling of the attorney has been placed on record and in absence of the same, mere filing of affidavits of the counsel or the attorney is of no help to the appellant. Under the law governing the subject, it was obligatory upon the appellant to explain each and every days satisfactory but in the instant case, the appellant has badly failed to discharge the liability of satisfactorily explaining the delay."
The perusal of the above would show that the learned appellate Court had taken into consideration all aspects of the matter in coming to its conclusion that no case for condonation had been made out and the appeal was time barred. Needless to reiterate that when the time runs out for approaching the relevant forum, each day's delay is required to be explained through convincing explanation as valuable rights accrue in favour of the other side, with the expiry of limitation. Apart from the fact that in view of Irtiqa Rasool Hashmi v. Water & Power Development Authority and another (1980 SCMR 722) and Naseem Ahmad Chaudhry v. Chairman, Punjab Labour Appellate Tribunal, Lahore and 4 others (1995 SCMR 1655) the discretion so exercised by the appellate Court in declining the condonation of delay does not warrant interference by this Court in writ jurisdiction as no illegality has been committed in doing so, I myself am not convinced of the explanation sought to be adumbrated in filing of the delay appeal or seeking condonation of delay. No illegality thus has been committed by the lower Court in dismissing the appeal. In such view of the matter, when the dismissal of the appeal by the appellate Court as time barred is not being interfered with by this Court, I feel no necessary of embarking upon the other aspects of the matter.
The writ petition is dismissed accordingly, with no order as to costs.
(T.S. Faisal) Petition dismissed.
PLJ 2006 Lahore 1159 (DB)
Present: Sayed Zahid Hussain and Syed Asghar Haider, JJ.
MAPLE LEAF CEMENT FACTORY, LTD. Lahore, through its General Manager--Appellant
versus
WARYAM and 42 others--Respondents
R.F.A. No. 202 of 1994, heard on 19.4.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XX, R. 5 Code of Civil Procedure had laid down procedure of a trial stage wise--Court is required to record judgment according to guidelines mentioned in Order XX of CPC. [P. 1161] A
(ii) Land Acquisition Act, 1894 (I of 1894)--
----Ss. 18 & 54--Acquisition of land--Award for compensation granted--Reference against--Enhancement of compensation--Assailed--Judgment in instant case did not conform to provisions of law--It has been reiterated by superior Courts that judgment is to be based on evidence, and no other factor should be taken into consideration--Relief had to follow findings on issues, but it is not so in the case--Matter was remanded for decision afresh. [P. 1161] B
Mr. Ejaz Ahmed Chaudhry, Advocate for Appellant.
Mr. Muhammad Hanif Khatana, Additional Advocate General Punjab for Respondents.
Nemo for unofficial Respondents.
Date of hearing : 19.4.2006.
Judgment
Syed Zahid Hussain, J.--This is appeal under Section 54 of the Land Acquisition Act, 1894 against the judgment of learned Senior Civil Judge, Mianwali whereby he decided the reference under Section 18 of the Land Acquisition Act, 1894 on 11.7.1994.
The land in dispute was acquired for the benefit of the appellant to setup an industry i.e. cement factory. Award dated 24.10.1984 was announced. Dissatisfied with the compensation awarded the respondents took steps for reference which according to the learned counsel for the appellant was not entertained by the Collector as the same was barred by time and was then instituted by the respondents in the Court of Senior Civil Judge, Mianwali. The same was contested on number of grounds including that they had accepted and received the compensation and that it was barred by time. Following issues were framed:--
Whether the petitioner has been wrongly compensated by the respondent? If so, what is the proper compensation? OPP
Whether the petition is time-barred? OPR
Whether the reference has not properly submitted? If so, with what effect? OPR
Whether the petition is not maintainable in view of preliminary objection Nos. 3 to 5 of the reply? OPR
Whether Sultan, Younas and Ghulam Hussain petitioners had died prior to the institution of this reference? OPR
Relief.
After that the evidence had been led by the parties the learned Reference Court disposed of Issues Nos. 2 to 5 as "not pressed". On issue No. 1 the finding was against the respondents as it was observed that "The inadequacy of the compensation was to be established by the respondents for which there is no sufficient evidence" and came to the conclusion that "The petitioners having failed to establish their case, the issue is answered against them." Suffice it to observe that the onus of the said issue was upon the respondents. However while dealing with Issue No. 6 i.e. "Relief" quite surprisingly, the learned trial Judge ordered the enhancement of the compensation by 40% in addition to 15% compulsory acquisition charges on the enhanced sum and 8% compound interest from the time of announcement of award till the recovery of whole decretal amount. There is serious exception being taken to the order passed by the learned trial Court inasmuch as that issues including the limitation and the competency of the reference were not decided at all and were disposed of as "not pressed" and despite the finding against the respondents qua Issue No. 1 relief was still granted by making substantial enhancement in the compensation which shows inconsistency in the approach of the learned trial Court to the matter in issue. The approach adopted by the learned Judge indeed is self-contradictory, for, if the respondents had failed to prove Issue No. 1 there could be no basis or justification for any order of enhancement of compensation. The judgment rendered by the trial Court can be no standard be regarded as consistent with the evidence or the law on the subject.
We find substance in the contention of the learned counsel that Issues Nos. 2 to 5 had to be adverted to by the trial Court which concerned with the very maintainability of the reference and had not been abandoned by the appellant. Suffice it to observe that the framers of the Code of Civil Procedure had quite precisely laid down the manner and procedure of a trial stage-wise. On conclusion of the trial the Court is required to record judgment for which the guidelines are mentioned in Order XX of the Code of Civil Procedure, 1908. The judgment in the instant case did not conform to the provisions of law. It has repeatedly been reiterated by the superior Courts that the judgment is to be based on evidence in the case and no other material or factor should be taken into consideration. While recording finding on Issue No. 1 the Court has clearly held that the respondents failed to produce any evidence, but still granted relief by making enhancement in the compensation under Issue No. 6 which was about "Relief". Needless to observe that the relief had to follow the findings on the issues and should have been consistent with those findings but it is not so in the instant case. Such a disposition of the matter cannot indeed qualify to be a judgment in law and is liable to be set aside. Reference may be made to Muhammad Siddiq v. Syed Ali Shah and another (PLD 1976 Lahore 293), Syed Aulad Ali Shah Gilani v. Azad Jammu and Kashmir Government through Chief Secretary and another (PLD 1987 SC (AJ&K) 1) and Muhammad Nazir v. Muhammad Ashraf and 3 others (PLD 1987 S.C. (AJ&K) 16).
We have thus reached the conclusion that by setting aside the judgment whereby the reference was disposed of, the matter should be remanded to the learned Senior Civil Judge, Mianwali for decision afresh in accordance with law. No order as to costs.
(T.S.Faisal) Case remanded.
PLJ 2006 Lahore 1162 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD BASHIR--Petitioner
versus
SCRUTINY COMMITTEE DUNYA PUR through its CHAIRMAN/CONVENER and 2 others--Respondents
W.P. No. 3025 of 2005, heard on 15.5.2006.
Constitution of Pakistan, 1973--
----Art. 199--Chief Minister's Programme for land to landless peasants of the Province--Proceeding withdrawn--Validity--Implementation--Draw pro-ceedings were recorded and was a progress report in accordance with manner of notification--Fresh draw proceedings were held--Assailed--One can raise objections to eligibility of an applicants which were to be disposed of by Scrutiny Committee--Application can be entertained even on the day--Now some body filed complaints against any process by Scrutiny Committee then DCO was required to refer the complaint to District Supervisory Committee--No complaint as to eligibility of two petitioners and process conducted by Scrutiny Committee constituted for purpose--Act of respondents in conducting second draw was not valid--Petitions allowed and proceedings of record draw conducted to be illegal without lawful authority and set aside. [Pp. 1163 & 1164] A, B & C
Mr. M. Abdul Wadood, Advocate for Petitioner.
Mr. Zafar Ullah Khan Khakwani, A.A.G. (on Court call) for Respondent.
Mr. Masood Ahmad Dogar, Advocate for Respondent No. 3.
Mr. M. Sohail, Naib Tehsildar & M. Farooq, Colony Clerk, Dunaypur.
Date of hearing : 15.5.2006.
Judgment
This judgment shall decide W.P. No. 3025/05 and W.P. No. 2492/05 as common questions are involved.
In order to implement Chief Minister's Programme for land to landless peasants of the province, a notification was issued by the Provincial Government on 1.9.2003 (Annex: `D' to W.P.3025/05). The applications were obtained and were scrutinized. A draw was held on 1.4.2004 and 26.3.2004 respectively in these two cases under the supervision of the Scrutiny Committee. The lands mentioned in these two writ petitions were accordingly allotted to the respective petitioners in these cases. The draw proceedings were recorded and so was a progress report in accordance with the manner prescribed in the said notification. The land was to be delivered and to be allotted to the said petitioners. However, this was not done and instead fresh draw proceedings were held on 27.4.2005 as a result whereof the said lands came to be allotted to the Respondent No. 3 respectively in these writ petitions.
M/s. M. Abdul Wadood and M. Riaz Jahania, Advocates/learned counsel for the petitioners in these two cases argue that the draw proceedings having been duly conducted in accordance with the terms of the said notification and no defect or fault having been found therewith, the official-respondents had no jurisdiction to conduct the second draw. Learned A.A.G. states that the Chief Minister had nominated one Muhammad Aslam Awan, Ex-MPA, Lodhran, to the Supervisory Committee and the said nominee had complained that he was not associated in the said proceedings and a high level meeting was held in the Board of Revenue and the fresh proceedings were ordered. M/s. Masood Ahmad Dogar and Ch. Abdul Sattar Goraya, Advocates/learned counsel respectively for Respondent No. 3 in these cases while adopting the said reasoning of the learned A.A.G. further contend that the draw could not have been undertaken without involvement of the Supervisory Committee.
I have gone through the file of these two cases. It will be seen that there is no allegation that any fraud was committed during the course of the said proceedings or that the petitioners in these two cases are not eligible to apply for grant of land under the Chief Minister's Programme in accordance with the terms of the said notification.
Now the procedure of allotment has been laid down in some detail in the said notification. Now the Scrutiny Committee is constituted under Para-8 (xvii) of the said notification. It comprises of the following:--
Deputy District Officer (Revenue) Chairman
Tehsildar Member
Lamberdar of Mouza concern Member
Two notables of the village to be Nominated by the Government of the Punjab. Members
There is no objection whatsoever that the Scrutiny Committee which conducted the proceedings was not composed in the manner prescribed. Now the application for grant of land is to be made to the DDO (R) which is to be entered in a Register. The DDO (R) is required to hold personal inquiry as well as inquiry through the said Scrutiny Committee about eligibility of the applicant and if he is found eligible a certificate is to be recorded on the application and similarly if an application is illegible the reasons are to be recorded. Para-8 (ix) provides that selection of persons for allotment of land is to be made by drawing lots in the presence of Scrutiny Committee in the open Katchary, after due publicity. In the said Katchary, any one can raise objections to the eligibility of an applicant which are to be disposed of by the Scrutiny Committee. The applications can be entertained even on the said day. Now in case some body files a complaint against any process by the Scrutiny Committee then the DCO is required to refer the said complaint to the District Supervisory Committee. It is this latter Committee to which the said Muhammad Aslam Awan, Ex-MPA, was nominated by the Chief Minister.
Now it will be seen that there being no complaint against the process conducted by the Scrutiny Committee. There was no question of any reference to the District Supervisory Committee. There was no occasion for the said nominee to complain as the stage for his involvement never came.
As noted by me above, there is no complaint as to the eligibility of the two petitioners and the process conducted by the Scrutiny Committee constituted for the purpose. This being so, the act of the respondents in conducting the second draw is not valid. Both the writ petitions are allowed and the impugned order and the proceedings of said second draw conducted on 27.4.2005 in both these cases are hereby declared to be illegal, without lawful authority and are set aside. No orders as to costs.
(Rafaqat Ali Sohal) Petitions allowed.
PLJ 2006 Lahore 1164
Present: Mian Hamid Farooq, J.
MUHAMMAD YOUSAF--Petitioner
versus
MANZOOR AHMAD etc.--Respondents
W.P. No. 7782 of 2006, decided on 18.7.2006.
Constitution of Pakistan, 1973--
----Art. 199--Civil Procedure Code Section 115--Competency and maintainability of Writ Petitioner--Revisional order passed in civil litigation challenged in Writ Petition--Held : Could Not Be Challenged in Constitutional Petition: Further Held : if an order passed in exercise of revisional jurisdiction, is although illegal, yet passed with jurisdiction, then the same cannot be assailed in a constitutional petition and if order passed by the revisional Court is wholly void or coram non judice, of course a writ petition against such a revisional order, would be competent except for such orders in no other case an order passed by District judge in Revisional Court in civil litigation can be challenged through filing the constitutional petition. [P. ] A
PLJ 2001 Lahore 960, PLD 1985 SC 131, 1988 SCMR 322, 1991 SCMR 970, ref.
Mr. Agha Abdul Hassan Arif, Advocate for the Petitioner.
Date of hearing : 18.7.2006.
Order
The respondent filed the suit for possession through pre-emption together with an application for the grant of temporary injunction before the learned Civil Courts. The petitioner/defendant was summoned, he, for the first time, appeared before the learned trial Court, on 14.7.2004, and the case was adjourned for a future date for filing the written statement. The petitioner, despite providing various opportunities, including final opportunity, failed to file the written statement and the learned trial Court, then, proceeded to close petitioner's right to submit written statement, vide order dated 26.1.2005. Petitioner's revision petition against the said order was also dismissed by the revisional Court, vide order dated 30.6.2006, hence the present petition.
Learned counsel for the petitioner has contended that although the learned trial Court provided the petitioner last opportunity to file the written statement, yet did not warn him that in case of failure to file the written statement, his right would be closed. He has relied upon Lahore Development Authority through Director General vs. Muhammad Shafi and 3 others (2004 YLR 959).
I have heard the learned counsel and examined the available Record. In nutshell the petitioner has challenged the order invoking the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, passed by a revisional Court in exercise of its powers under Section 115 C.P.C. and, thus, the question arises for determination is as to whether the Constitutional Petition is competent and maintainable against the revision order passed in a civil litigation.
The said legal question was examined in Muhammad Sami Ullah Khan vs. Additional District Judge and others reported as PLJ 2001 LAhore 960 and this Court while relying upon Noor Muhammad vs. Sarwar Khan and 2 others (PLD 1985 SC 131), Muhammad Zahoor and another vs. Lal Muhammad and 2 others (1988 SCMR 322) and Muhammad Khan vs. Ghulam Fatima (1991 SCMR 970) came to the conclusion that a revisional order arising out of civil litigation could not be challenged in constitutional petition. It was further held that if an order passed by a District Judge, in exercise of revisional jurisdiction, is although illegal, yet passed with jurisdiction, then the same cannot be assailed in a constitutional petition and if an order passed by the revisional Court is wholly void or coram-non-judice, of course, a writ petition against such a revisional order, would be competent. Except for such orders in no other case an order passed by District Judge as a revisional Court in Civil litigation can be challenged through filing the constitutional petition.
I have minutely perused the order dated 30.6.2006, rendered by the learned Addl. District Judge and I am of the considered view that the said order is neither void nor without jurisdiction and the same has been passed by the learned Addl. District Judge having jurisdiction in the matter. The present petition deserves to be dismissed on this ground alone.
Even otherwise, the petitioner has got no case on merits either. As noted above, the petitioner appeared before the learned trial Court, on 14.7.2004, on which date, he was required to file the written statement. Thereafter, the case was adjourned to 27.7.2004, 24.9.2004 and 16.10.2004, but the petitioner avoided to file written statement and sought adjournments. It is true that on two dates of hearing i.e. on 28.10.2004 and 20.11.2004, the learned presiding officer was on leave yet it is equally true that the petitioner could not take advantage of a period of almost a months. On 15.12.2004, the case was adjourned at the request of the petitioner as a last opportunity. The petitioner could not avail the said last opportunity and did not file the written statement rather on 3.1.2005 again requested for the postponement of the case. Despite all that the learned trial Court adjourned the case to file written statement as last and final opportunity, however, the said warning could not deter the petitioner and he remained adamant in not filing written statement till petitioners right to file written statement was closed. It flows from the above that the petitioner could not file written statement despite providing 8 opportunities within a span of 6 months, whereas under proviso to order VIII Rule 1 CPC the period allowed for filing written statement shall not ordinarily exceed thirty days. It appears that the petitioner by his consistent default made it impossible for the learned trial Court to proceed with the trial. The learned Civil Judge afforded every possible opportunity to the petitioner to retrace his steps and to file the written statement but the conduct of the petitioner was not only negligent but also contumacious. It seems that he was determined not to file the written statement.
As regards the solitary contention of the learned counsel, the same is devoid of any force, inasmuch as the petitioner, on 15.12.2004, was allowed last opportunity and on 3.1.2005, he was granted last and final opportunity. The petitioner could not avail the said opportunities and persistently defaulted in failing written statement. As regards the case of Lahore Development Authority (ibid) relied upon by the learned counsel, the said judgment is of no avail to the petitioner, because in the said judgment, the adjournments were granted in routine, while in the instant case, the case was adjourned at the specific requests of the petitioner inasmuch as last opportunities were granted. When the learned trial Court granted twice last and final opportunities, it pre-supposes that no final opportunity would be granted to the petitioner in future. The said judgment is of no avail to the petitioner.
I have examined both the impugned orders and find that both the Courts did not commit any illegality. Under the circumstances, I am not inclined to exercise the constitutional jurisdiction in the matter, which is not only discretionary but also equitable.
Upshot of the above discussion is that the present constitutional petition is incompetent and devoid of merits, thus stands dismissed on both the Courts.
( ) ?????
PLJ 2006 Lahore 1167
Present: Muhammad Muzammal Khan, J.
SHAFQAT ALI--Petitioner
versus
BOARD OF REVENUE, PUNJAB LAHORE, etc.--Respondents
W.P. No. 2585/2005, decided on 18.4.2006.
Civil Procedure Code, 1908 (V of 1908)--
----Order 41, R. 23--Remand fo case--Wastage of Time--Constitutional Petition Art. 199--Unnecessary remand fo case should be avoided--It is to the knowledge of even a lay man that protected litigation involves not only wastage of public exchequer bust also result in wastage of public time of the presiding officer and that of the litigants. [P. ] A
Mr. Mian Bashir, Advocate for the Petitioner.
Mr. Rana Muneer-ul-Hassan, Advocate for the Respondent No. 4.
Mr. Ch. M. Arshad, Advocate for the State.
Date of hearing : 18.4.2006.
Order
Instant constitution petition challenged the judgment/order dated 9.8.2004 passed by the learned Senior Member, Board of Revenue, to be declared illegal, void and of no legal consequence, whereby review petition filed by Respondent No. 4 was accepted and by setting aside the revision judgment dated 24.12.2001, case was remanded to the D.O.(R) Bhakkar, for fresh decision.
Succinctly, relevant facts are that Fazal Karim father of the petitioner was appointed as "Lumberdar" of Chak No. 46-DB, Tehsil Kaloor Kot, and District Bhakkar in the year 1952-53 who died on 8.1.1999. the petitioner claimed that in life time of his father he was appointed as Caretaker (Sarbrah) "Lumberdar" vide order dated 30.7.1986 by the then Assistant Commissioner, Bhakkar and according to him, there had been no complaint against him.
Petitioner moved an application for his appointment as regular "Lumberdar" to the ten D.C/Collector, where his candidature amongst Respondent No. 4 and others was considered and his application was dismissed vide order dated 20.6.2000 and Respondent No. 4 was appointed as "Lumberdar" of the Chak in question.
Petitioner aggrieved of the order dated 20.6.2000 passed by the Deputy Commissioner/Collector Bhakkar, filed an appeal before then Commissioner, Sargodha, where he succeeded as his appeal was accepted on 14.11.2000 and the appointment was directed to be re-examined, keeping in view the majority of "Baradari" in the Mauzia. Petitioner was not satisfied with the view taken by the Commissioner hence he filed a revision petition (ROR No. 64 of 2001) in the Office of the Board of Revenue whereas Respondent No. 4 also filed a counter revision petition (ROR No. 2429 of 2000). Both these revision petitions were disposed of through a single order dated 24.12.2001 whereby petitioner's revision petition was accepted whereas the other filed by Respondent No. 4 was dismissed.
Respondent No. 4 thereafter, filed review petition No. 57 of 2002 in (ROR 2429 of 2000) and the learned Senior Member, Board of Revenue, through his order dated 9.1.2004 accepted he review petition and remanded the case, as noted above.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, Respondent No. 4 did not file any review petition in ROR No. 64 of 2001 which was accepted in favour of the petitioner and instead he filed only one review petition in his own revision petition (ROR No. 2429 of 2000), allowing the order dated 24.12.2001 intact to the extent of Respondent No. 4. Besides it, the learned Member, Board of Revenue, while accepting the review petition and remanding the case, was solely impressed by the report of E.D.O. (R) Bhakkar dated 24.12.2001, detail of which was not mentioned in the impugned order and in the light of the same, the case was required to be decided afresh.
Law regarding remand of the cases is firmly settled by this time to the effect that unnecessary remand of case should be avoided. It is to the knowledge of even a lay man that protected litigations involves not only public exchequer but also result in wastage of public time of the Presiding Officer and that of the litigants. Petty dispute of appointment of "Lumberdar" still awaits final decision inspite of lapse of about two decades and in such circumstances remand of case was not in the interest of any of the parties, that is why the learned counsel for Respondent No. 4 did not opposite acceptance of instant constitutional petition and remittance of the matter to Respondent No. 1 against with a direction to consider the report of E.D.O.(R) Bhakkar dated 24.12.2001 himself and to pass some final order. Record revealed that exercise sought to be done from the D.O. (R) in presence of order in ROR No. 64 of 2001, could have been done by the learned Member, Board of Revenue, himself and parties should not have been thrown to face protected litigation for another period of two decades.
For the reasons noted above, the impugned order dated 9.8.2004 passed by Respondent No. 1 being tainted with patent illegality is declared to be void and non existent in the eye of law by accepting instant constitutional petition, with the result that review petition No. 57 of 2002 filed by Respondent No. 4 shall be deemed to be pending before Respondent No. 1 and shall be decided afresh in the light of the observations made above, on its own merits, in accordance with law. Parties are directed to appear before Respondent No. 1 on 3.5.2006. There will be no order as to costs.
(W.I.B.) Writ Petition Accepted.
PLJ 2006 Lahore 1169
Present: Muhammad Jehangir Arshad, J.
MUHAMMAD SHAKEEL--Petitioner
versus
MUHAMMAD MUJTABA and 4 others--Respondents
W.P. No. 5177 of 2006, decided on 29.5.2006.
Punjab Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Constitution of Pakistan, 1973, Art. 199--Maintainability of Constitutional petition against interim order, when appeal prohibited--Tenant challenged the direction for the deposit of rent issued by Appellate Court--Held: Legislature had specifically prohibited the filing of appeal against the interim order and if the Constitutional petition was allowed to be filed against such order it would amount to defeating and diverting the intent of the legislature. [Pp. 1170 & 1171] A
1996 SCMR 1165, ref.
Mr. Haider Ali, Advocate for Petitioner.
Date of hearing : 29.5.2006.
Order
The petitioner who was respondent before the learned Rent Controller and against whom an ejectment order was passed by the learned Rent Controller on 14.2.2006 for non-compliance of order passed by the said Court under Section 13(6) of the Rent Restriction Ordinance, is now aggrieved of the order dated 17.3.2006 passed by learned Additional District Judge, Lahore whereby the said learned Additional District Judge while admitting the petitioner's appeal (against the ejectment order) for regular hearing, directed him to deposit monthly rent at the rate of Rs. 8000/- per month from December, 2003 till March, 2006 and further directed him to keep on depositing future rent at the rate of Rs. 8000/- before 15th of each succeeding month.
"Despite that the petitioner is not without remedy, as he has got an adequate remedy available to him by challenging the impugned orders in appeal, which, he may file against the ultimate order/judgment if the same would be passed against the petitioner. The petition is also hit by Article 199(1) of the Constitution, hence cannot be entertained.
Upshot of the above discussion is that the present petition is incompetent and not maintainable, hence dismissed in limine."
In the abovementioned background the final ejectment order was passed by the learned Rent Controller on 14.2.2006 against the petitioner. Against the said order of ejectment, the petitioner filed first appeal which came up for limine hearing before learned Additional District Judge, Lahore on 17.3.2006 when the said learned Additional District Judge admitted the same for regular hearing and besides issuing notices to the respondents also issued the abovementioned impugned direction through the same order. The petitioner through this constitutional petition seeks the quashment of the said direction on the ground that there was no justification for the learned. Additional District Judge to have issued the said direction; even otherwise, the impugned direction is harsh amounting to depriving the petitioner of his right of appeal.
(Waseem Iqbal Butt) Dismissed in limine
PLJ 2006 Lahore 1171
Present: Muhammad Akhtar Shabbir, J.
RAEES KHAN and 3 others--Petitioners
versus
NASEEB KHATOON (WIDOW)--Respondent
C.R. No. 1018 of 2006, decided on 17.5.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Constitution of Pakistan, 1973, Art. 199--Revisional jurisdiction of High Court--Concurrent findings on facts of Courts below--Jurisdiction--Findings on question of fact or law recorded by Courts of competent jurisdiction, could not be interfered with in revisional jurisdiction by High Court unless those findings suffered irregularities, or jurisdictional defect, illegality or material irregularities. [P. 1173] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Constitution of Pakistan, 1973, Art. 199--Competency of revision petition--Revision petition applied to involving illegal assumption, non-exercise or irregular exercise of jurisdiction and it cannot be invoked against conclusion of law or fact which do not in any way affect the jurisdiction of the Court no matter however, erroneous, wrong or perverse the decision might be either on a question of fact or law, unless the decision involves a matter of jurisdiction as erroneous conclusion of law or fact is liable to be corrected in appeal but revision will not be competent on such ground unless an error of law has been committed in arriving at such conclusion. [P. 1173] B
(iii) Words and Phrases--
----Illegally or an act without material irregularity--Acted illegally means acting in breach of some provision of law and the term acted with material irregularity refers to committing of some error of procedure in the course of trial which was material in that it might affect the ultimate decision. [P. 1173] C
2002 YLR 3840, 2000 SCMR 346, 2000 SCMR 431, PLD 1994 SC 291 and 2000 PLR 1906, ref.
Mr. Zia Ullah Khan Niazi, Advocate for Petitioners.
Date of hearing : 17.5.2006.
Order
Brief facts giving rise to the instant revision petition are to the effect that Naseeb Khatoon plaintiff/respondent herein had instituted a suit for possession through pre-emption on a sale of land measuring 20-Kanals 2-Marlas made through mutation of Sale No. 920 dated 27.6.2001 in the Court of Senior Civil Judge. Mianwali, against the petitioners/defendants, who filed their written statement denying the averments of the plaint. From the factual controversy appearing on the pleadings of the parties, the learned Trial Court led to frame the various issues. After recording and appreciating the evidence of the parties, pro and contra, the learned trial Court decreed the suit in favour of the plaintiff/respondent vide, judgment and decree dated 1.6.2005 for a consideration of Rs. 6,60,000/-. Both the parties challenged the judgment and decree of the trial Court by filing their separate appeals, Civil Appeal No. 71/192/2005 and Civil Appeal No. 66/193/2005, which came up for hearing before the learned Addl. District Judge, Mianwali, who vide a consolidated judgment and decree dated 18.4.2006 accepted the appeal of Mst. Naseeb Khatoon plaintiff/respondent and reduced the incidental charges to Rs. 45,000/- setting aside the findings of the trial Court on Issue No. 7, while the Appellate Court dismissed the appeal filed by the petitioners/defendants. Both these judgments and decrees have been assailed by the petitioners through the instant revision petition.
The learned counsel for the petitioners has objected the findings of the lower Appellate Court on Issue No. 1 superior right of pre-emption contending that the plaintiff/respondent failed to establish her superior right of pre-emption and there is no evidence on record to establish that the property of the pre-emptor/plaintiff was adjacent or contiguous to the property in dispute. Further contended that the Courts below have misappreciated the evidence of the respondent and also failed to take into consideration the oral as well as the documentary evidence of the petitioners/defendants. Further contended that the copy of Aks Shajra Ex. P-12 has not been proved by the Patwari Revenue. Further contended that the judgments and decrees of both the Courts below is result of misreading and non-readings of evidence and not sustainable in the law.
I have heard the learned counsel for the petitioners and perused the record.
To support her superior right of pre-emption the plaintiff/respondent produced copy of register record of rights for the year 1996-97 Ex. P-11 which indicates that the plaintiff/respondent is owner of Khasra No. 129/7. This was also supported by Aks Shajra Ex. P-12 and copy of the Aks Shajra Ex. D-4. It is established that the property of the plaintiff is adjacent to Khasra No. 129/7, which is part of the suit property. The petitioners themselves produced the document Ex. D-4, copy of Aks Shajra. This document has also not been got exhibited through the Patwari Revenue. Khasra No. 129/7 property in dispute and Khasra No. 129/4 are adjacent to each other having a common boundary line/WATT. The documents Ex. P-12 and Ex. D-4 are the copies of Aks Shajra produced by the parties. Both are not in conflict with each other rather tally with Parcha Shajra/Aks Shajra maintained by the Patwari. Learned counsel for the petitioners has not been able to distinguish between the two documents. Both the Courts below while passing the impugned judgments and decrees have taken into consideration all the important oral as well as documentary evidence produced by the parties. Both the Courts below have observed that the respondent/plaintiff has been able to establish her superior right of pre-emption. There are concurrent findings of fact against the petitioners. It is settled proposition that findings on question of fact or law recorded by Court of competent jurisdiction, could not be interfered with in revisional jurisdiction by the High Court unless those findings suffered irregularities, or jurisdictional defect, illegality or material irregularities. Reference in this context can be made to the case of Muhammad Ismail Khaliq vs. Anees Ahmad (2002 YLR 3840). This judgment has been passed keeping in view the findings of the Superior Court in the case of Abdul Rahim and another vs. Mst. Jantay Bibi and others (2000 SCMR 346). Anwar Zaman and 5 others vs. Bahadur Sher and others (2000 SCMR 431), and Haji Muhammad Din vs. Malik Muhammad Abdullah (PLD 1994 SC 291). Revision petition applies to involving illegal assumption, non-exercise or irregular exercise of jurisdiction, and it cannot be invoked against conclusion of law or fact which do not in any way affect the jurisdiction of the Court no matter however, erroneous, wrong or perverse the decision might be either on a question of fact or law, unless the decision involves a matter of jurisdiction as erroneous conclusion of law or fact is liable to be corrected in appeal but revision will not be competent on such a ground unless an error of law has been committed in arriving at such conclusion. Reliance in this context can be made to the case of Gul Raza vs. Sargand (2002 PLR 1906).
The learned counsel for the petitioners has also not been able to point out any illegality or an act without material irregularity. The term acted illegally' means acting in breach of some provisions of law and the termacted with material irregularity' refers to committing of some error of procedure in the course of trial which is material, in that it may affect the ultimate decision. The learned counsel for the petitioners has miserably failed to persuade to interfere with the Court that the concurrent findings of the Courts below.
For the foregoing reasons, this revision petition being devoid of force is dismissed in limine.
(Waseem Iqbal Butt) Petition dismissed.
PLJ 2006 Lahore 1174
Present: Syed Sakhi Hussain Bukhari, J.
FAZAL DIN--Petitioner
versus
MAQBOOL AHMAD and others--Respondents
C.R. No. 1421 of 1992, heard on 12.5.2006.
Punjab Pre-emption Act, 1991 (I of 1991)--
----S. 34--Applicability of--Suit was filed under the Pre-emption Act, 1913--Determination--Decree can be passed in old cases under the Pre-emption Act, 1991 after the target date 31.7.1986--Validity--Held: No decree could be passed in the suit in view of esteemed judgments of superior Courts as the suit was not fulfilling the requirements of Islamic principles of Pre-emption i.e. requirement of Talabs. [P. 1176] A
PLD 1991 Lah. 173, 1988 SCMR 1800 and 1988 SCMR 1933 ref.
Ch. Muhammad Anwar Ghumman, Advocate for Petitioner.
Mr. Muhammad Aslam Nagi, Advocate for Respondents.
Date of hearing : 12.5.2006.
Judgment
This revision petition is directed against the judgment dated 1.6.1992 passed by learned Additional District Judge, Kasur whereby appeal brought by petitioner against the judgment and decree dated 7.2.1989 passed by learned Civil Judge, Kasur was dismissed.
Relevant facts for the disposal of this revision petition are that Fazal Din, petitioner filed suit for possession through pre-emption against the respondents and stated that Lal Din S/o Shahabo was owner of suit land (measuring 9 Kanals 15 marlas situated in Village Bahadurpura Tehsil and District Kasur) and he transferred the same in favour of defendants/respondents vide registered sale-deed dated 16.8.1972. He further stated that being co-sharer in Khewat in question he has superior right of pre-emption qua the defendants/respondents. Learned trial Court framed issues, recorded evidence and dismissed the suit brought by petitioner vide judgment dated 7.2.1989 on the ground that since suit had not been decreed in favour of petitioner/pre-emptor till 31.7.1986, therefore, in view of PLD 1986 S.C. 360 suit cannot be decreed after 31.7.1986. The petitioner filed appeal thereagainst. which was dismissed vide judgment dated 1.6.1992 passed by learned Additional District Judge Kasur. Hence this revision petition.
I have heard the arguments and perused the record.
As mentioned above, the petitioner had filed suit for possession through pre-emption regarding the suit land purchased by respondents/defendants vide registered sale-deed dated 16.8.1972. He filed the suit on 27.7.1973 but plaint was rejected vide order dated 2.2.1981. The plaintiff filed appeal thereagainst which was accepted vide judgment dated 13.10.1985 and case was remanded for decision afresh in accordance with law. Thereafter suit was decreed in favour of petitioner vide judgment dated 15.11.1987. The respondents filed appeal thereagainst and appellate Court remanded the case vide judgment dated 1.7.1988 with he direction that appellants be provided opportunity to bring on record "Jamabandi" for the year 1967-68. Learned trial Court recorded evidence and after hearing the parties dismissed the suit brought by petitioner vide judgment dated 7.2.1989 on the ground that suit had not been decreed in favour of petitioner/pre-emptor till 31.7.1986, therefore, in view of case of Government of NWFP vs. Said Kamal Shah (PLD 1986 SC 360) the suit cannot be decreed in his favour. His appeal was dismissed vide judgment dated 1.6.1992 passed by learned Additional District Judge. The case of the petitioner is that earlier on case having been decided on 2.2.1981, therefore, further proceedings were required to be regulated under the Punjab Pre-emption Act, 1913, in view of the provision contained in Section 34 of the Present Act. For which proposition reliance has been placed on the case of Muhammad Sharif vs. Muhammad Sharif (1992 Law Notes (SC) (130) and it has been argued that impugned judgments are liable to be set-aside. However, the case of respondents is that suit had not been decreed in favour of pre-emption/petitioner till 31.7.1986, therefore, the suit could not be decreed in his favour after 31.7.1986. As stated earlier the suit was filed on 27.7.1973 and it had not been decreed in favour of petitioner/pre-emptor before the target date of 31.7.1986. The suit was decreed in favour of pre-emptor for the first time on 15.11.1987, therefore, learned Courts below have rightly dismissed the suit. Reliance can be placed on the case of Zaheer-ud-Din Babar and another vs. Allah Lubhaiya (2004 SCMR 1338) and Sh. Hukmat Khan vs. Hashim Khan and two others (PLD 2004 SC 15). The judgment dated 1.6.1992 shows that learned Additional District Judge has decided the appeal brought by petitioner after appraisal of entire material available on record. Paras Nos. 3 & 4 of the said judgment read as under:
Learned counsel for the appellant contends that impugned judgment and decree are not sustainable in the eye of law as having been passed against the requirements of law because the suit so filed by the appellant/plaintiff in 1973 was to proceed in accordance with old pre-emption Act and that earlier the said suit was decreed on 15.11.1987 and as a result of appeal preferred by the respondents/defendants the said judgment and decree were set aside and the case was remanded for fresh decision after recording additional evidence vide judgment and decree dated 11.7.1988 passed by learned Additional District Judge, Kasur, therefore, after the remand learned trial Court was not competent to dismiss the suit in view of the esteemed judgment referred supra. On the other hand, it is argued that impugned judgment and decree are perfectly legal and does not suffer from any inherent legal infirmities and flaws. Reliance has been placed in this behalf upon the esteemed judgment reported as PLJ 1991 Lahore 173, 1988 SCMR 1800, 1988 SCMR 1933.
I have considered the arguments addressed by the learned counsel for the parties and I do not feel myself in agreement with the learned counsel for the appellant because instant suit for pre-emption was filed in the year 1973 and in view of the wisdom so laid down in the esteemed judgments referred supra, the suit was rightly dismissed by the learned trial Court because no decree could be passed in the suit in view of the esteemed judgments of the superior Courts as the said suit was not fulfilling the requirements of Islamic principles of Pre-emption i.e. requirements of Talabs".
The impugned judgment is just and proper. There is no illegality or infirmity in the impugned judgment, therefore, there is no justification to set-aside the same.
(Waseem Iqbal Butt) Petition dismissed.
PLJ 2006 Lahore 1176
Present : Umar Ata Bandial, J.
CO-OPERATIVE EMPLOYEES UNION REGISTERED (CBA), LAHORE through its GENERAL SECRETARY--Petitioner
versus
SECRETARY CO-OPERATIVE, PUNJAB, CIVIL SECRETARIAT, LAHORE and 3 others--Respondents
W.P. No. 2186 of 2006, decided on 31.3.2006.
Constitution of Pakistan, 1973--
----Arts. 23 & 24--Determination of price--Transfer of Property owned by a Cooperative Society to a Government agency--Validity--Determination of price by acquisition authority--Held: It is valid and permissible at a notionally determined price solely because its prospective use might be in the public interest--Coop is a distinct legal entity and the respondents exercise control of its affairs as trustees--Under the Constitutional mandate of Arts. 23 & 24 of the Constitution as well as statutory law, the acquisition of the Coop's property must be at fair market value--If, the Coop is considered a public enterprise, the respondent public functionaries were again under a duty to apply and deal with its property as trustees in furtherance of the Coops objects. [Pp. 1178, 1179 & 1180] A & B
1998 SCMR 2268, 1998 SCMR 2182, 1996 SCMR 1433.
Mr. Iqbal Hameedur Rehman, Advocate for Petitioner.
Mr. Kr. Muhammad Saeed, Advocate for Respondents Nos. 1 & 4.
Mr. M. Javed Iqbal, Advocate for Respondent No. 3.
Date of hearing : 31.3.2006.
Order
This writ petition has been filed to challenge the order by Respondent No. 1 dated 23.1.2006 rejecting the objections raised by the petitioner employees union against the grant of 99 years lease of 32 kanals of commercial land on Ferozepur Road, Lahore owned by Respondent No. 3 ("Coop") in favour of Respondent No. 4 ("PITB") upon payment of a premium in the amount of Rs. 100.0 million and annual rent in the amount of Rs. 2.2 million. It is alleged on behalf of the petitioner that the Respondent No. 1 has wrongly treated a long lease of land for 99 years to be different from a sale of land and, therefore, the said respondent has failed to apply the relevant criteria for assessing the financial and other terms of the said lease. Nor has the Respondent No. 1 paid heed to the bye-laws of the Coop that necessitate only such activity or transaction to be pursued by the Coop that promotes its objectives or benefit its members or its employees that are represented by the petitioner. It is contended that the impugned transaction is being undertaken solely to comply executive fiat.
The impugned order dated 23.1.2006 was passed by the Respondent No. 1 pursuant to a direction given by the Court on 19.9.2005 in W.P. No. 16058/2005 for considering the objections of the petitioner to the impugned transaction on grounds of transparency and good governance, in particular, for present purposes, the allegation that the financial terms of the proposed lease were deficient and, therefore, detrimental to the interest of the Coop. The impugned order has determined that 32 kanals of the Coop's land is not being alienated but being leased; no other offer is available to the Coop for lease of the said land; and agency of the government makes a reliable lessee and the object of setting up an IT Center pursuant to the proposed lease promotes the public good. Support is derived from the Coop board's resolution dated 23.9.2005 approving the proposed lease transaction on the terms referred above.
Before this Court the learned counsel for the respondents have defended the impugned order on the grounds given therein by Respondent No. 1. In answer to the Court's queries, learned counsel for the Coop has informed that the Coop purchased the disputed land from the Model Town Society for valuable consideration. The Coop was established in 1969 and runs on a self financing, non profit basis to provide essential goods to the public at subsidized prices in its retail out-lets spread in the province. Its members who are drawn from the general public contributed the capital of the Coop. Under its byelaw the Coop is to be managed by an elected board of Directors but that did not happen and the board members for many years have all been nominated by the Respondent No. 2 ("Registrar").
Although the Coop is a distinct legal entity that is financially autonomous and owns substantial assets including the disputed commercial land, however, the management and control of its business, property and affairs vests in the Registrar and his nominees. In substance, the Coop is managed and operated as a public sector enterprise by public functionaries exercising control over its affairs. It is axiomatic that in the discharge of their duties in relation to the Coop, be it the Registrar, the Coop Board of directors or the Respondent No. 1, their acts are subject to the rules of transparency, good governance and fairness. The application of these rules establishes the legal validity of acts of public functionaries taken particularly in pecuniary and proprietary matter.
So long as the impugned action meets the standard set by the said rules, it is neither necessary nor proper for the Court to consider the sufficiency or detail of the terms of the proposed lease of the Coop's land. Indeed the Court confines itself to the application of objective criteria to assess the validity of public action. In this context some salient facts of the present case are noted as follows. Valuable commercial land owned by the Coop is being leased to PITB without inviting tenders or offers from the public to establish its market value. This action is based on the premise that the grant of 99 years lease of land is not a transfer or disposition that attracts the said measures establishing transparency. Transfer of property owned by a cooperative society to a government agency is deemed to be valid and permissible at a notionality determined price solely because its prospective use may be in the public interest. The byelaws of a cooperative society specifying its business and the objects for which its property and funds may be employed, can be ignored by public functionaries acting in exercise of statutory power. A cursory mention that benefit is done to members and employees of a cooperative society by the long lease of its principal asset is considered to be legally sufficient to justify the transaction without quantification deliberation and decision on the basis of a feasibility or benefit analysis being undertaken.
With respect, each of the foregoing features of the impugned order, and the actions that it sanctifies, fall foul of the criteria of transparency, good governance and fairness laid down by the superior Courts rendering such action illegal and void.
The lease of an immovable property involves a transfer of an interest in that property in relation to the rights of its possession and enjoyment. Such a lease interest takes away incidents of ownership, namely possession and enjoyment of property for an agreed period of time from the owner and vests them in the leasee. The longer the lease the greater the attributes of the ownership interest in the property that are transferred to the lessee. The contemplated lease of the disputed property for a long duration of 99 years therefore transfers the substantive rights of ownership leaving the bare title of the disputed property with the Coop. Clearly, the respondents have misunderstood the legal significance of the impugned transfer. The disposition, transfer or vesting of property that belongs to the public or is done at the hands of public functionaries is governed by the rules of transparency, good governance and fairness. In essence these rules require a fair procedure to be adopted to fetch the best market value for the interest and property transferred and to ensure that the full price is received in the pursue of the transferor. Depending on the facts of the case, an invitation for the officers or a public tender for the property under transfer, as the case may be, are steps commonly taken by public functionaries to arrive at the best bid for the proprietary interest offered. The over arching principles that govern the conduct of public functionaries in this respect have been often reiterated by the Honourable Supreme Court. A lucid statement of these principles was also made in the case of Messrs Airport Support Services vs. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) to the following effect:
"Further a contract, carrying elements of public interest, concluded by functionaries of the State, has to be just and fair, transparent, reasonable and free of any taint of mala fides, all such aspects remaining open for judicial review. The rule is founded on the premise that public functionaries, deriving authority from or under law, are obligated to act justly, fairly equitably, reasonably, without any element of discrimination and squarely with the parameters of law, as applicable in a given situation. Deviations, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution."
The foregoing principles dictate the pursuit of the best terms of transfer although rights be overridden. Reference may be made to Javedan Cement Mehnat Kash Union and another vs. The Federation of Pakistan and others (1998 SCMR 2182) and Javed Iqbal Abbasi and Co. vs. Province of Punjab (1996 SCMR 1433). The facts of the present case necessitate that the feasibility of the lease and, if so, the fair market value of the property under transfer by way of lease ought to have been assessed by the respondents, which was not done. It should not have mattered that the respondent public functionaries were acquiring the disputed property for a public purpose. The Coop is a distinct legal entity and the respondents exercise control of its affairs as trustees. Under the constitutional mandate of Articles 23 and 24 of the Constitution as well as statutory law, the acquisition of the Coop's property must be at fair market value. If, however, the Coop is considered a public enterprise, the respondent public functionaries were again under a duty to apply and deal with its property as trustees in furtherance of the Coop's objects. It is not sufficient that the property of a cooperative society may be taken over without fair consideration or due deliberation merely because of executive expediency.
In the result, the impugned order by the Respondent No. 1 dated 23.1.2006 and the proceedings that it affirms, namely, the Coop board resolution dated 23.9.2005 and actions taken pursuant thereto in respect of the disputed property of the Coop, are declared to be illegal, without lawful authority and of no legal effect. Respondent No. 2 Registrar, who is the governing authority in all matters pertaining to the affairs of the Coop, shall cause the feasibility and, if so, the terms of the proposed transaction to be objectively and fairly assessed in order for a considered and fair decision to be taken in the matter. Petition allowed.
(Waseed Iqbal Butt) Petition allowed.
PLJ 2006 Lahore 1180
Present: Muhammad Akhtar Shabbir, J.
Mst. SAEEDA AKHTAR SADIQ (WIDOW)--Appellant
versus
TAUQIR AKHTAR--Respondent
R.S.A. No. 35 of 2006, decided on 8.5.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XIV, R. 3--Framing of issues--Duty of Court--Omission in framing of issues--Proposition of law--Effect on decision--Neither fatal nor render it illegal--Held: It is the duty of judge to frame issues so that parties may know the controversy, the disputed fact on which evidence is to be led and to enable an effective judgment to be rendered but where the parties are not satisfied, it is their duties to get proper issues framed--Further Held: Mere omission to frame the issues by itself would not be fatal where substantial justice has been done. Where the parties have been aware of the points requiring determination, and had led evidence and the matter had been decided by the Court, in that case the decision rendered by the Court would not be illegal. [P. 1182] A & B
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 100--Constitution of Pakistan, 1973, Art. 199--Scope of--Second appeal--Can a second appeal lie when other view point on evidence produced could be taken Held: Second appeal will lie where the judgment is uncertain in its meaning and the finding is vague and inconclusive or where the reasons are not given at all--Finding recorded was not open to challenge in second appeal by High Court in exercise of its jurisdiction u/S. 100 C.P.C. simply because some other view point, on evidence produced could be taken. [Pp. 1182 & 1183] C & D
(iii) Civil Procedure Code, 1908 (V of 1908)--
----S. 100--Constitution of Pakistan, 1973, Art. 199--Second appeal--Interference in concurrent findings on fact in second appeal--Jurisdiction of High Court--Held: It could be made by High Court when evidence was misread and findings was based on surmises and conjectures; or on inadmissible evidence; or there existed error or defects in procedure which might possibly have introduced error or defect in decision on merits. [P. 1183] E
1990 CLC 1617, 1993 SCMR 2018, 2000 CLC 1018, 1988 SCMR 4, 1999 YLR 1656, 1999 MLD 3384 and 1997 SCMR 1866, ref.
Mr. Muhammad Saeed Ahmad, Advocate for Appellant.
Date of hearing : 8.5.2006.
Order
The present appellant has filed a suit for recovery of Rs. 5,59,891.20 against the respondents. The said amount was given to the respondent as a loan for having a separate house for his own. The respondent/defendant promised to return the amount alongwith interest by the end of June 1999. The suit was contested by the defendant/respondent, he asserted that he has received the amount as marriage gift. From the factual controversy appearing on the pleadings of the parties, the learned trial Court led to frame the various issues. After recording, appreciating, the evidence of the parties pro and contra, the learned trial Court dismissed the suit vide judgment and decree dated 13.5.2003. Feeling aggrieved the present petitioner preferred an appeal which came up for hearing before the learned Addl. District Judge, Faisalabad, who vide impugned judgment and decree dated 24.6.2004 dismissed the same and affirmed the findings of the learned trial Court.
The learned counsel for the petitioner contended that the learned trial Court has failed to frame the proper issues in view of the pleadings of the parties and thus committed illegality. Further contended that the judgments of the Courts below are result of misreading and non-readings of evidence. He continued that the findings of the Courts below on Issue No. 1-A are also contrary to law and facts. The time will start functioning for filing the suit from the date of refusal by the defendant/respondent.
I have heard the learned counsel for the parties and perused the record.
Issues are to be framed on the basis of material enumerated in Rule 3 of Order 14, which regard to the material proposition of law or facts distinct and separate issues are to be framed for each proposition in dispute. It is the duty of the Judge himself to frame proper issues, so that the parties may know the controversy, the disputed fact on which evidence is to be led and to enable an effective judgment to be rendered but where the parties are not satisfied, it is their duties to get proper issues framed. The appellant during the trial has not objected to the framing of the proper issues or not framed the issues in accordance with the objection raised in the pleadings of the parties. The appellant was duty bound to apply to the trial Court for this purpose and in case of failure would have challenged the order before the next higher Court or at least should have raise this objection in the memorandum of their appeal before the lower Appellate Court and the appellant if he failed to raise the objection in the trial Court or in the lower Appellate Court, this objection now at this stage, cannot be raised. In this context reference can be made to the case of Mir Afzal and 2 others vs. Muhammad Raza Khan and 13 others (1990 CLC 1617). The other aspect of the case is that mere omission to frame the issues by itself would not be fatal where substantial justice has been done. Where the parties have been aware of the points requiring determination, and had led evidence and the matter had been decided by the Court, in that case the decision rendered by the Court would not be illegal. Reliance in this context can be placed to the case of Fazal Muhammad Bhatti vs. Mst. Saeeda Akhtar and 2 others (1993 SCMR 2018) and also a judgment of this Court in the case of Kaura and others vs. Allah Ditta and others (2000 CLC 1018), Mst. Sughra Bibi alias Mehran Bibi vs. Asghar Khan and another (1988 SCMR 4). Both the Courts below by passing the impugned judgments and decrees have taken into consideration the evidence produced by the parties. The controversy before the trial Court was that the claim of the plaintiff/appellant that 14460 US $ were paid by the plaintiff to the defendant but the defendant has taken the stand that the said amount has been paid by the plaintiff as a marriage gift of the defendant as the wife of the defendant is the real niece of the plaintiff/appellant and she has given the said amount as gift to the defendant and his wife. The finding of the trial Court dismissing the suit of the plaintiff, has been maintained by the lower Appellate Court and there is concurrent findings of facts by the Courts below on question of fact against the appellant. It is settled proposition of law that second appeal will lie where the judgment is uncertain in its meaning and the finding is vague and inconclusive or where the reasons are not given at all. Reference in this context can be placed to the case of Syed Rehmat Ali through Legal Heirs and 2 others vs. Syed Sadique Ali through Legal Heirs (1999 YLR 1656). Learned counsel for the appellant has not been able to point out any material non-reading or misreading of the evidence calling for interference by this Court in second appeal as laid down in case of Mushtaq Hussain and others vs. Mukhtar Ahmad and others (1999 MLD 3384). In case of Mussarat Sultana vs. Muhammad Saeed (1997 SCMR 1866) the Honourable Supreme Court has observed that the High Court in second appeal had no jurisdiction to go into the question relating to weight to be attached to the statement of the plaintiff. Believing or disbelieving evidence being function of the trial Court, finding recorded in regard thereto was not open to challenge in second appeal by High Court in exercise of its jurisdiction under Section 100 C.P.C. simply because some other view point on evidence produced could also be taken. Interference in concurrent finding of fact could be made by High Court only when evidence was misread and finding was based on surmises and conjectures; or on inadmissible evidence; or there existed error or defect in procedure which might possibly have introduced error or defect in decision on merits.
Both the Courts below have rightly observed that the suit is barred by limitation. The case of the plaintiff is that the amount in dispute was paid to the defendant as a loan for construction of their house; therefore, Article 59 of the Limitation Act, 1908 is attracted and the period of three years is provided for filing the suit, which shall commence when the loan is made. Findings of the Courts below on Issue No. 1 are affirmed and call for no interference.
For the foregoing reasons, this regular second appeal having no force is dismissed in limine.
(Waseem Iqbal Butt) Second appeal dismissed.
PLJ 2006 Lahore 1183
Present: Muhammad Akhtar Shabbir, J.
Mrs. MUZNA SAQLAIN ALVI--Petitioner
versus
SUB-REGISTRAR, NISHTAR TOWN, LAHORE and another--Respondents
W.P. No. 4818 of 2006, decided on 24.5.2006.
(i) Registration Act, 1908 (XVI of 1908)--
----Ss. 32 & 33--Constitution of Pakistan, 1973--Art. 199--Power of attorney--Power of attorney can be registered by the registrar or Sub-registrar in whose districts or sub district the principal resides--Ppower of attorney executed before and authenticated by an office within whose jurisdiction the principal temporarily resides is not invalid. [P. 1187] A & B
(ii) Registration Act, 1908 (XVI of 1908)--
----Ss. 34 & 35--Duty of registering authority--Registration officer is bound to register the document if the requirements of Sections 34 & 35 of Registration Act prescribing the procedure for satisfaction of the registering authority are fulfilled. [P. 1187] C
(iii) Registration Act, 1908 (XVI of 1908)--
----Ss. 32 & 38--Mandatory in nature--Non compliance of the provisions--Effect on registration of document--Provisions are mandatory in nature and not directory and non-compliance of these provisions will make the document null and void. [P. 1188] D
(iv) Registration Act, 1908 (XVI of 1908)--
----S. 71--Refusal to register power of attorney relating to immovable property situated outside the district of Registering Authority imposition of ban by the authorities--Validity--Held: Imposition of ban by Executive District Officer (Revenue) for registration of general power of attorney relating to the property situated outside the district is in conflict with the provisions of Registration Act. [P. 1189] E
AIR 1937 Privy Council 46, PLD 1997 Lahore 193, 77 I All 465, AIR 1922 PC 279; 2001 CLC 326 and 1987 CLC 786, Ref.
Mr. Muhammad Afzal Khan, Advocate for Petitioner.
Mr. Muhammad Arif Bhinder, Addl. A.G. alongwith Muhammad Dawood, Record Keeper for Respondents.
Date of hearing : 24.5.2006.
Order
The petitioner seeks indulgence of this Court calling inquestion the provisions of Circular No. HRC/4521 dated 24.12.2004 issued by the Executing District Officer (Revenue), Respondent No. 2 issuing direction to the Sub-Registrars in Lahore District to obtain certain documents before registering the power of attorney. The office circular ostensibly issued with the objective of minimizing the chances of fraud and to protect the people from fraud and preparing of bogus documents and transactions of the properties, which is reproduced as under:--
"It has been noticed with concerns that there has been growing tendency in public in recent years to get registered General Power of Attorneys in Lahore District relating to the properties situated in other districts. It is understood that the Registering Staff is unable to exercise the desired vigilance in verifying the real title of the executants in other districts. Sometime there comes very unhappy situation which puts the public into colossal loss of properties and also leads to unnecessary litigations.
In order to protect the people from any fraud of bogus documents and also to tighten control over the fraudulent transactions of properties, you are directed to stop forthwith the registration of General Power of Attorneys relating to the properties situated outside the Lahore District. Any laps in the matter will be taken serious notice of."
Parawise comments from the respondents have been received. The learned Addl. Advocate General has put his appearance on behalf of the respondents, therefore, I dispose of this writ petition as a notice case.
The learned counsel for the petitioner contended that a procedure for registration of the documents is provided in the Registration Act and the Registering Authority is bound under the law to register the documents presented before him after performing the requirements prescribed in the Act and the procedure laid thereunder. Further contended that the administrative functionaries while interpreting the laws cannot add the words to the statute nor assume jurisdiction to interpret the law and any direction or instructions through the circular contrary to the statutory provisions of law would not stand. He placed his reliance on the case of M. Zunnoon Khan, Advocate vs. Nisar Ahmad Siddiqui, Member Board of Revenue, Sindh and 2 others (2001 CL 326).
On the other hand, the learned Addl. Advocate General vehemently opposed the arguments of the learned counsel for the petitioner contending that the Constitutional petition is not maintainable as the alternate remedy by filing the appeal is provided under the law. Further contended that the impugned circular has been issued to protect the people from any fraud of bogus documents and also to tighten the control over the bogus transactions of the properties.
I have heard the learned counsel for the parties and perused the record.
The petitioner's father namely Zubair Amanat Kureshi was the owner of property consisting of residential plot measuring 400 Sq. Yds, located at 296-Block/Section 6-G, Category-B, Mehran Town Scheme, Korangi, Karachi, who died and after his death the petitioner alongwith her brother namely Omair Amanat Kureshi succeeded as owner of the property to the extent of their legal share and the plot had been mutated in her name and in the name of her brother through a Mutation No. 143 sanctioned by the District Government Karachi. The petitioner while settled at Lahore intend to sell her plot and she appointed Mr. Ateed Riaz son of Late Mr. Ashraf Riaz resident of 119-120, Qamar House, M.A. Jinnah Road, Karachi as her general attorney. She presented the said document of general power of attorney for its registration before the Sub-Registrar Nishtar Town, Lahore/Respondent No. 1. The grievance of the petitioner is that despite the verification obtained by Respondent No. 1 from the City District Government Karachi he has verbally refused to register the general power of attorney on the basis of the instructions contained in the impugned Circular No. HRC/4521 dated 24.12.2004 and the respondent has not given reason in writing for not registering the general power of attorney. The learned counsel for the petitioner contended that the act of Respondent No. 1 declining to register the general power of attorney is contrary to the provisions of Section 71 of the Registration Act, 1908.
In the parawise comments the respondents have taken a stand that in order to protect the people from fraud of bogus documents and also to tighten control over the fraudulent transaction the Executive District Officer (Revenue), Lahore directed to all the Sub-Registrars to stop forthwith the registration of General Power of Attorney relating to the properties situated outside the Lahore District. It is further urged in the comments that before recording the reasons of refusal, the local commission has taken back the General Power of Attorney in her possession hurriedly and did not afford an opportunity for recording the reasons for refusal. Section 29 of the Registration Act, 1908 provided the place for registering the others documents, which reads as under:--
"Section 29 Place for registering other documents.--(1) Every document (not being a document referred to in Section 28, or a copy of a decree or order), may be presented for registration either in the office of the Sub-Registrar in whose sub-district the document was executed, or in the office of any other Sub-Registrar under the (Provincial Government) at which all the persons executing and claiming under the document desire the same to be registered.
(2) ...........
Section 28 deals with the place of registration of the document relating to the immovable property and falling within Section 17, sub-section (1), clauses (a), (b), (c), (d) and (e). If such document affects immovable property and such document shall be presented for registration in the office of the Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate.
The document in dispute presented for registration was a power of attorney executed by the petitioner for transfer of the property empowering the attorney with regard to the property inherited from her father. Letter for confirmation was written by the Sub-Registrar/respondent on 4.4.2006 seeking information from the City District Government Karachi and in response thereto vide a letter dated 20.4.2006 the Deputy District Officer Land Management of Karachi confirmed the ownership of the residential Plot No. B-296, Sector 6-G, measuring 400 Sq. Yds. Situated at Mehran Town Scheme, Korangi, Karachi, inherited by the petitioner and Omair Amanat Kureshi. It is the responsibility of the registration officer to register the documents if it is presented before him by a competent person as provided in Section 32 of the Registration Act.
Section 33 deals with the power of attorney which is reproduced below for further guidance:--
Section 33, Power-of-attorney recognizable for purpose of Section 32....
(1) For the purposes of Section 32, the following powers-of-attorney shall alone be recognized, namely:-
(a) if the principle at the time of executing the power-of-attorney resides in any part of (Pakistan) in which this Act is for the time being in force, a power-of-attorney executed before the authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides:
(b) if the principal at the time aforesaid resides in any other part of (Pakistan), a power-of-attorney executed before and authenticated by any Magistrate;
(c) if the principal at the times aforesaid does not reside in (Pakistan), a power-of-attorney executed before any authenticated by a Notary Public, of any Court, Judge, Magistrate, (Pakistan) Counsel or Vice-Counsel, or representative of the (Federal Government);
It would mean that the power-of-attorney can be registered by the Registrar or Sub-Registrar in whose districts or sub-district the principal resides. The expression "reside" is not defined in the Act. It has been held by the Privy Council that there is no reason to assume that it contemplates only permanent residence and excludes temporary residence. A power-of-attorney executed before and authenticated by an office within whose jurisdiction the principal temporarily resides is not invalid. The object of use of word "resides" was that Legislature wanted to put restraint and exclude element of fraud, forgery, undue influence and duress in alienation of immovable property. Where one claimed to reside at
L' he must either own immovable property or should have business, or industry or service or job or admission in educational institution atL' would be covered by term "resides". Reference in this context can be made to the case of Sarat Chandra Basu vs. Bijoy Chand Mahatab Maharaja-dhiraj Bahadur of Burdwan (A.I.R. 1937 Privy Council 46) and Ghulam Nabi vs. Secretary to the
Government of Punjab Forest Department Punjab, Lahore through Divisional Forest Officer and 3 others (PLD 1997 Lahore 193). From the perusal of the general power-of-attorney presented by the executant/petitioner for registration, it is evident that the petitioner is resident of House No. 686-X, Phase-3, DHA, Lahore holding CNIC No.
35201-1386054-0. The registration officer is bound to register the document if the requirements of Sections 34 and 35 of the Act prescribing the procedure for satisfaction of the registering authority are fulfilled. Section 35 of the Act prescribes the procedure for the registering authority and if any person presenting any document of registration or claiming under any document, which is capable of being so presented, desires the appearance of any person whose presence or testimony is necessary for the registration of such document, the registration officer (may, in his discretion) call upon such officer or Court as the (Provincial Government) directs in this behalf to issue a summons requiring him to appear at the registration-office, either in person or by duly authorized agent. Meaning thereby that the only duty caste upon the registering authority for his own satisfaction can perform all the requirements provided in Sections 32 to 36. It is concluded that the provisions of Chapter 6 (32 to 38) are mandatory in nature and not directory and non-compliance of these provisions will make the document null and void and it is the intention of the legislature was that registration of deed should be null and void by reasons of non-compliance of the provisions of Registration Act, 1908. In case of Muhammad Ewaz vs. Birj Lal
(77 I All. 465) it was observed by the Honourable Judges that:--
"It is rather to be inferred that the Legislature intended that such errors or defects should be classed under the general words `defects in procedure' in Section 88 of the Act, so that innocent and ignorant persons should not be deprived of their property through any error or inadvertence of a public officer, on whom they would naturally place reliance."
The Registration Act has imposed several conditions regulating the presentation of documents for registration, and it is of great importance that those conditions, framed with a view to meet local circumstances, should not be weakened or stained on the ground that they may appear to be exacting and strict. Reference in this context can be made to the case of Chottey Lal vs. The Collector of Moradaabad (AIR 1922 PC 279). It was also observed by the Judges of the Privy Council that there are many mischiefs against which the statute was designed to afford protection in requiring obedience to the provisions for presentation in the first instance.
As the registering officer/respondent has not assigned reasons for non-registering of the document, the imposition of the ban by the Executive District Officer (Revenue), Lahore for registration of the general power-of-attorney relating to the property situated outside the Lahore district is in conflict with the provisions of the Registration Act.
The learned Addl. Advocate General when confronted to point out any provisions of law from the Registration Act vide which the Executive District Officer (Revenue), Lahore/Respondent No. 2 by issuing the circular in the district has imposed the ban on the registration of the documents, could not respond. I do not disagree with the anxiety of the Executive District Officer (Revenue), who made some efforts to check frauds and forgery in this respect but I find that the said measures may hardly serve any useful purpose. In case of M. Zunnoon Khan, Advocate vs. Nisar Ahmad Siddiqui, Member Board of Revenue, Sindh and 2 others (2001 CLC 326) where a circular ostensibly has been issued with the object of minimizing the chances of fraud. It was challenged by the petitioner before the Sindh High Court and the Honourable Judges have observed that:--
"Section 35 of the Registration Act casts a solemn obligation upon the Registering Officer to satisfy himself that the person appearing before him is genuine. He could be required to state the reasons for his satisfaction. However, the stipulation that he should obtain a copy of one of six types of documents and place on record might possibly apart from causing undue burden upon citizens enable him to shed his responsibilities of identifying the maker of the document and enable him to act mechanically by registering a power-of attorney after obtaining copies of one of the six documents whose own authenticity may be open to serious doubts."
The learned Judges of the High Court further observed as under:--
"We, therefore, agree with the petitioner that it would be far more important to take strict measures against those who are found guilty of mal-practices instead of issuing omnibus directives. We would at the same time add that when a power-of-attorney is fraudulently registered primarily on the basis of identification by an Advocate the registration officer or the concerned authorities must invariably apprise the concerned Bar Council for taking disciplinary action against the Advocate abetting such fraud."
In another case Asad Zaheeruddin and 3 others vs. The Sub-Registrar "T" Division-I and 7 others (1987 CLC 786) when the Martial Law Administrator made an order requiring the recovery of the capital gains tax wherever leviable under the Rules to be recovered from the assesses before registration of sale-deed. It was held that on the basis of the order of the Martial Law Administrator the registering authority could not refuse registration of the conveyance deed on the ground of non-production of a clearance or no-objection certificate regarding payment of capital gains tax.
In the case in hand, the petitioner has mentioned her permanent place of residence at D.H.A. Lahore. As defined the impression reside also includes the temporary residence as laid down in the case of Sarat Chandra Basu vs. Bijoy Chand Mahatab Maharaja-dhiraj Bahadur of Burdwan (AIR 1937 Privy Council 46) wherein Lord Maugham, Sir Lancelot Sanderson and Sir Shadi Lal have observed that the expression "resides," as used in Section 33 of the Registration Act is not defined in the statute; but there is no reason for assuming that it contemplates only permanent residence and excludes temporary residence.
From the above discussion, this Court is constrained to declare the impugned circular to have been issued by Respondent No. 2 without lawful authority and hold the same to be of no legal effect. Respondents, however, are at liberty to introduce any other measures for prevention of fraud within the scope of authority affirmed by law or to seek amendment of the relevant law. This writ petition is allowed as prayed for.
(Waseem Iqbal Butt) Petition allowed.
PLJ 2006 Lahore 1190
Present: Muhammad Muzammal Khan, J.
MUHAMMAD AKHTAR CHEEMA--Petitioner
versus
ADDITIONAL DISTRICT AND SESSIONS JUDGE and 7 others --Respondents
W.P. No. 19020 of 2005, decided on 18.4.2006.
Punjab Local Government Election Rules, 2005--
----Rr. 65, 67(3) & 72--Civil Procedure Code (V of 1908), O. VI, R. 15(2)--Constitution of Pakistan, 1973, Art. 199--Election petition was dismissed by election tribunal on the ground that was not verified and attested in the manners as laid down in Civil Procedure Code and Election Rules, 2005--Verification of election petition--Mandatory requirements--Attestation on oath not requirement of Law--In case of default has to face consequences as per Rule 72(a) of Election Rules, 2005 thus requirement of verification of an election petition, assailing local bodies elections was also mandatory--Attestation is not requirement of Order VI, Rule 15 of Civil Procedure Code (V of 1908)--Attestation on oath and how it is to be made is provided by Oath Act has neither referred in O. VI, R. 15 CPC nor in the Punjab Local Government Election Rules, 2005. [Pp. 1192 & 1193] A & B
PLJ 2006 SC 151, ref.
Mian Muhammad Sikandar Hayat, Advocate for Petitioner.
Ch. Sadaqat Ali, Advocate for Respondents Nos. 3 & 4.
Date of hearing : 18.4.2006.
Order
Instant Constitutional petition challenged order dated 8.11.2005 passed by Respondent No. 1 to be declared illegal, void and of no legal consequence, whereby election petition filed by the petitioner was dismissed.
Succinctly, relevant facts are that petitioner alongwith Ch. Shabbir Hussain, his co-candidate, contested the recent local bodies election held on 18.8.2005 for the seat of Nazim/Naib Nazim of Union Council-3, Bhattikey, Wazirabad Town. The opponents of the petitioner were Respondents Nos. 3 to 8. Respondents Nos. 3 and 4 were declared to be successful and their result was accordingly notified. Petitioner claimed that Respondent No. 3 had attached a bogus matriculation certificate alongwith his nomination papers, whereas he was not qualified to contest the elections, thus he filed an election petition before the nominated Election Tribunal (Respondent No. 1).
Respondents Nos. 3 and 4 being successful candidates and respondents to the election petition, contested the same by filing their written reply controverting the allegations of the petitioner. Respondent No. 3 also moved an application for rejection of election petition on the ground that the same was not verified in the manner laid down in the Civil Procedure Code, 1908 and the Rules 65 and 67 in this behalf being mandatory in nature, the election petition deserved summary dismissal under Rule 72 of the Punjab Local Government Election Rules, 2005. The Election Tribunal having already issued notice to the respondents after hearing preliminary arguments of the petitioner, framed issues arising out of controversial stance of parties and thereafter took up application of Respondent No. 3 and dismissed the election petition on 8.11.2005, holding that verification of the same was not correctly inscribed. Petitioner, thereafter, filed instant constitutional petition with the relief, noted above, and Respondents Nos. 3 and 4, who are the real contestant, in response to notice by this Court, appeared alongwith Respondent No. 9 and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputely, election petition filed by the petitioner carries a verification to the effect "I attest on oath that paragraphs of the petition are correct as per may knowledge and belief. Dated 7.9.2005 at Hafizabad. Sd-." but it has been found to be opposed to the provisions of Order VI, Rule 15(2) CPC by the Election Tribunal resulting in dismissal of the same. Rule 67(3) of the Punjab Local Government Election Rules, 2005 envisaged that every election petition and every schedule annexed thereto shall be signed by the petitioner and verified in the manner laid down in the Civil Procedure Code, 1908 for verification of pleadings. Under earlier mentioned provisions of law, the person verifying is required to specify by reference to paragraphs numbers of the pleadings what he verifies on his own knowledge and what he verifies upon information received and belief, to be true. This requirement was examined by the Honourable Supreme Court in the case of Sardarzada Zafar Abbas and others vs. Syed Hassan Murtaza and others (PLJ 2006 S.C. 151) and it was mandated that this requirement of verification under civil law are generally directory in nature and omission to do so can be rectified subsequently during trial and even the Court can direct such rectification but as regards election petitions, those were held to be mandatory being backed with penal consequences as per provision of the Representation of Peoples Act, 1976. Respectfully following the view taken by the Honourable Supreme Court, requirement of Rule 67(3) of the Punjab Local Government Election Rules, 2005, in case of default, has to face consequences, as per Rule 72 (a) of the Rules (ibid), thus requirement of verification of an election petition assailing local bodies elections was also mandatory.
In the case in hand, election petition has been verified on oath but the same has not been inscribed by reference to paragraph numbers and instead all the paragraphs thereof were attested on oath on knowledge and belief. This situation was also examined by the Honourable Supreme Court in the case of Sardarzada Zafar Abbas and others (Supra) and relevant findings are in paragraph 8 of the judgment, which reads as under:--
"Learned counsel for the respondent raised another objection that the election petitioners in their verifications have failed to give reference to the paragraphs of the pleadings as to what he either happened to verify on his own knowledge and what he happened to verify upon information received and believed to be true. Such objection is not very material because at times the entire statement happens to be given on the basis of one's knowledge and at times on the basis of information received. It depends upon the facts of each case, as to what category the assertions belong. The situation is likely to differ from case to case."
Averments in the election petition, if scanned on the touchstone of the judgment by the Honourable Supreme Court, part of which has been reproduced above, revealed that petitioner's statement in the election petition that Respondent No. 3 appended with his nomination papers a bogus matriculation certificate could be on account of his own knowledge/belief, thus on this score the election petition could not have been graded to be defective. Learned counsel for Respondents Nos. 3 and 4 could not demonstrate that which paragraphs of the election petition should have been verified by the petitioner on his own knowledge and which of those should have been verified on information received and believed to be true.
Record revealed that election filed by petitioner underwent scrutiny by staff of the Election Tribunal, whereafter the same was admitted to regular hearing, after hearing preliminary arguments by the learned Presiding Officer but no objection regarding incorrect verification of the same was ever raised, thus objection of the learned counsel for Respondents Nos. 3 and 4 that verification on the election petition was subsequently inscribed by the petitioner had no value. The Election Tribunal initially deserted adjudication of application filed by Respondent No. 3 for rejection of election petition and after fixing of case for evidence and after summoning of record of Board of Intermediate and Secondary Education, abruptly opted to decide the same without explaining any reason for assumption of such jurisdiction. I was also not persuaded by the argument of the learned counsel for Respondents Nos. 3 and 4 that the verification of the election petition was not attested by an Oath Commissioner, for the reason that this attestation is not requirement of Order VI, Rule 15 CPC. Attestation on oath and how it is to be made is provided by Oath Act which has neither been referred in Order VI, Rule 15 CPC nor in Rule 67(3) of the Punjab Local Government Election Rules, 2005. Above all, the Election Tribunal having deserted adjudication of application filed by Respondent No. 3 through framing of issues, should have taken up this matter at the time of final decision of the matter, but he acted in haste in non-suiting the petitioner and that too, on untenable reasons to which the Honourable Supreme Court has graciously answered in the case of Sardarzada Zafar Abbas and others (supra).
For the reasons noted above, order dated 8.11.2005 passed by the learned Additional District Judge with the powers of Election Tribunal, Hafizabad, being tainted with patient illegalities is not sustainable and consequently, by accepting instant petition, the same is declared to be void and non-existent in the eye of law, with the result that election petition filed by the petitioner shall be deemed to be pending and will be decided on merits, in accordance with law. Parties are directed to appear before the learned Additional District Judge on 4.5.2006. There will be no order as to costs.
(Waseem Iqbal Butt) Case remanded.
PLJ 2006 Lahore 1193 (DB)
Present: Syed Shabbar Raza Rizvi and Muhammad Muzammal Khan, JJ.
MIQDAD HUSSAIN--Appellant
versus
JUDGE GUARDIAN COURT NO. 1, LAHORE and another--Respondents
I.C.A No. 493/2005 in W.P. No. 15933 of 2005, heard on 19.6.2006.
(i) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 85 & 87--Constitution of Pakistan, (1973), Art. 199--Public documents--Copying Agency--Applicability of Rule of Manual upon Copying Agencies under the Control of District Courts--Manual was published under the authority of Financial Commissioner of the Punjab and would not apply ipso facto to the Copying Agencies under the control of district Courts unless such Rules instructions were adopted by Court. [P. 1195] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XIII, R. 7(2)--Qanun-e-Shahadat Order (10 of 1984), Arts. 85 & 87--Constitution of Pakistan, 1973, Art. 199--Documents were not admissible in evidence inadvertently received by Court--Supply of certified copies refused by copying clerk--Documents, which were not admitted in evidence, would not be made part of the record and would be returned to the persons respectively producing them--Held: Provision was overlooked by trial Court and would not confer any right on the appellant to get certified copies of the documents not inadvertently returned to the party producing--Further held: Copy of a copy cannot be issued on the basis of any canon and the appellant must get such copies from the offices with whom the originals were or should be available. [P. 1196] B & C
Dr. Hameed Ahmad Ayaz, Advocate for Appellant.
Mr. Hashim Sabir Raja, Asstt. A.G. for Respondents.
Syed Kaleem Ahmad Khurshid, Advocate/Amicus Curaie.
Date of hearing : 19.6.2006.
Judgment
Muhammad Muzammal Khan, J.--This Intra Court Appeal assailed judgment dated 20.9.2005 passed by the learned Single Judge in Chamber of this Court in Writ Petition No. 15933 of 2005, whereby writ for issuance of "copy of a copy" by the Copying Agency of District Courts, Lahore, was declined to be issued.
Succinctly, relevant facts are that appellant filed a suit for declaration, mandatory injunction and recovery of Rs. 24,000/- against National Institute of Public Administration and others but the same was dismissed by the trial Court vide judgment/decree dated 3.5.2005. Appellant applied for certified copies of the judgment/decree passed by the trial Court alongwith copies of two documents namely memos dated 21.2.1995 and 14.6.1995 issued by Establishment Division, Cabinet Secretariat, Government of Pakistan, Islamabad. The certified copies of the memos were refused to be issued by the Copying Agency on the ground that copy of a copy cannot be issued. Appellant aggrieved of refusal of the Copying Agency to issue the certified copies of the memos above referred, filed a constitutional petition (P.W. 15933/2005) which was dismissed, as noted above. He thereafter, filed appeal in hand and in response to notice by this Court respondents appeared and opposed the same.
We have heard the learned counsel for the parties and have examined the record, appended herewith. Submissions of the learned counsel for the appellant that the memos in question were not received in evidence by the trial Court but the same were marked thus those constituted record of the judicial acts and were to be considered as public documents in terms of Article 85 of Qanun-e-Shahadat Order, 1984 and as such certified copies thereof under its Article 87 were to be issued by the Copying Agency concerned and that under para 1.27 of the Punjab Copying Agencies Manual, copy of a copy could not be refused if the same has been expressly asked for, have not impressed us to upset well reasoned judgment by the learned single Judge in Chamber of this Court, for multiple reasons. The first reason for our declining to interfere is that appellant has not brought anything on record to show that Punjab Copying Agencies Manual which contains Rules relating to supply of copies of records under the control of Deputy Commissioners, Commissioners and Financial Commissioners were adopted by this Court and were applicable to the Copying Agencies under the control of District Courts. The Manual relied was published under the authority of Financial Commissioner of the Punjab and would not apply ipso facto to the Copying Agencies under the Control of District Courts unless those Rules/instructions are adopted by this Court. Assuming but without conceding, if the Manual relied by the appellant was applicable to the Copying Agencies under the Control of District Courts, even in that case its para 1.27 clearly laid that copy of a copy can only be issued if the person applying requires it in order to call in question the correctness of an already issued copy. For convenience purposes para 1.27 is reproduced as under:
"1.27. A copy of a copy shall not be granted unless expressly asked for a such; as, for instance, in order to call in question the correctness of the copy granted. The fact that it is so required shall be entered in the heading and it shall be marked as "copy of a copy"."
The above reproduced provision of Punjab Copying Agencies Manual depicts that person applying for copy of a copy should be in possession of copy of the document applied and must detail its object of calling in question the correctness of copy already in his possession but appellant's case was not covered by it.
Language of Article 87 of Qanun-e-Shahadat Order, 1984 is also relevant for answering the question hinged, as it mandates to every public officer being in custody of a public document which any person has a right to inspect, to issue copy on demand and payment of legal fee. Keeping in view this provision of law, we have no ambiguity that Copying Agency under the control of District Courts was not in custody of original memos copies of which were applied by the appellant, whereas originals of those were with Establishment Division, Cabinet Secretariat, Government of Pakistan, Islamabad, and were addressed to NAB. In these circumstances, appellant could not call upon the Copying Agency under the Control of District Courts to issue certified copies of those letters, which were not in their custody/control. We have also examined Volume-V of the High Court Rules and Orders under the heading of "description of copies" wherein copies to be supplied have been divided into three kinds namely, attested copies for private use, attested copies for general use and unattested copies of plaints, exhibits and depositions prepared by the Courts' Stenographers under the orders of Presiding Judge. Under none of these headings, certified copy of a copy has been dealt or directed to be issued. Similarly, its Volume-I Chapter 1-G relating to documentary evidence deals with the provision of Order VII, Rule 14 CPC, but this provision of law deals with documents in possession or power of the plaintiff, which he has to file alongwith plaint and copies thereof are to be provided to his adversaries. This provision of law is also not relevant for the purposes of the appellant.
We have to remark that memos, copies of which have been applied by the appellant, were not tendered in evidence that is why those were given Mark A' andB'. As a matter of law, the learned trial Judge, cognizant of the suit, should have returned those documents which were not admissible and were not received in evidence, as law on the subject was unambiguous and Order XIII, Rule 7(2) CPC requires the Courts that documents which were not admitted in evidence, shall not be made part of the record and shall be returned to the persons respectively producing them. This provision if was overlooked by the learned trial Judge and would not confer any right on the appellant to get certified copies of the documents not inadvertently returned to the party producing. A Division Bench of this Court while dealing with the provisions of
Articles 85, 87 and 88 of the Qanun-e-Shahadat Order, 1984 laid in the case of
Mst. Kalsoom Begum vs. Ahmad Raza Bukhari (PLD 1999 Lahore 231) that written instruments are divisible into two classes namely public and private. Public documents were classified as consist of act of public functionaries in the executive, legislative and judicial discharge of functions and were entered in discharge of such duties. In this precedent case, copy from a certified copy issued by the Settlement Authorities placed on record of this Court, was refused to be issued on the ground that this Court had no nexus with the original record of the Settlement Department, as incharge of Copying Agency of this Court cannot certify copies to be correct from the original record. Scan of record, impugned order and the entire law applicable, revealed that `copy of a copy' cannot be issued on the basis of any canon and the appellant must get those copies from the offices with whom the originals are or should be available.
For the reasons noted above, writ was correctly declined to be issued by the learned Single Judge and we are not persuaded to take a different view to the one expressed in the order under appeal and consequently instant appeal, being devoid of any merit, is dismissed with no order as to costs.
(Waseem Iqbal Butt) Appeal dismissed.
PLJ 2006 Lahore 1196 (DB)
Present: Sh. Azmat Saeed and Mian Hamid Farooq, JJ.
ERUM JAFARI--Petitioner
versus
K.A.S.B. BANK, GULBERG-III, LAHORE through its MANAGER and 10 others--Respondents
E.F.A. No. 345 of 2006, decided on 28.6.2006.
(i) Gift--
----Orgal gift--Validity--Ingredients--Under the Islamic law gift can be made orally if three ingredients, i.e. offer of gift, its acceptance and delivery of possession are established on record. [P. 1200] A
(ii) Pleadings--
----Litigant can only succeed according to what was alleged and proved and he cannot be permitted to deviate from his pleadings nor can set up different pleas. [P. 1200] B
1998 SCMR 593, 1988 SCMR 1696, 1996 SCMR 336 and 1996 SCMR 1770, ref.
(iii) Registration Act (XVI of 1908)--
----Ss. 17 & 28--Registration of a document--Every document would be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate. [P. 1200] C
PLD 1991 Lahore 400, ref.
Mr. Aish Bahadur Rana, Advocate for Petitioner.
Date of hearing : 28.6.2006.
Order
Present appeal, filed by the objector, under Section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001, proceeds against order dated 27.5.2006, whereby the learned Judge Banking Court, acting as Executing Court, dismissed appellant's objection petition.
ISSUES:
Whether petitioner Mst. Iram Jaffary alongwith her children i.e. (1) Syed Ali Najaf Jaffary, (2) Syed Zail-ul-Aabdeen Jaffary, (3) Syed Aun Zafar JAffary (ons), (4) Syeda Zainab Batool Jaffary, and (5) Syed Maliah Batool Jaffary (daughters) are owner in possession of the Property No. 90-E-1, comprising of land measuring 3 Kanals 17 Marlas 217 sq.ft. Gulberg-III, Lahore on the basis of registered gift deed dated 5.1.1994 registered on 29.6.1994.
Relief.
The appellant appeared in person as witness, filed her affidavit Ex. A/1 and tendered documents i.e. gift deed, letter written to LDA and letter of LDA to the appellant, which were exhibited as Ex.A/2, Ex.A/3 and Ex.A/4, respectively. The learned Judge Banking Court, after hearing the parties, decided Issue No. 1 against the appellant and consequently dismissed appellant's objection petition, vide impugned order dated 27.5.1996, hence the present appeal.
Learned counsel for the appellant has contended that the appellant and Respondents Nos. 7 to 11, on the basis of registered gift-deed dated 12.7.1994, are owners in possession of the property. He has added that as the property was gifted in the year 1994, therefore, the same could not have been mortgaged in the year 1997. He has further submitted that under the Islamic Law a gift can be made orally and, therefore, the said gift is a valid. His further contention is that the execution of gift-deed stands established from its registration with Sub-Registrar as well as from the record of LDA.
We have heard the learned counsel and examined the available record. In post remand proceedings, the learned Executing Court framed the issues, as noted above, to the effect as to whether the appellant and other persons are owners of the property on the basis of gift-deed dated 5.1.1994, registered on 29.6.1994, onus of which was rightly palced upon the appellant. Obviously, the appellant, claiming to be one of the beneficiaries of the gift-deed, was under legal obligation to establish and prove through the production of sufficient evidence that the gift-deed was validly executed by Respondent No. 2 and it is legal document conferring title upon the appellant and others to the exclusion of decree-holder. Furthermore, the gift-deed was denied by the respondent bank, therefore, heavy onus lies upon the appellant to prove the execution of the said document (Reference can be made to Wajid Ali Khan vs. Sheikh Murtaza Ali and 2 others (2003 SCMR 1416). In order to prove the said issue, no independent witness was produced and the appellant appeared as her own witness and produced certain documents in evidence, including the gift-deed, which was exhibited as Ex.A./2. The appellant did not summon the stamp vendor and scribe of the document. Even the record of Sub-Registrar was neither summoned nor produced in evidence in order to prove the execution of the document. We find from the record that the alleged gift-deed was presented and attested before the Local Commissioner, who was also not produced in evidence. It is evident from the report of the Commission that the alleged donor appeared before him on 29.6.1994. In this context the Local Commissioner was an important and independent witness to be produced by the appellant, who was in a position to state that in fact the donor appeared before him and presented the document for registration. Additionally, we find from the photocopy of gift-deed that it is attested by two marginal witnesses. Admittedly, none of them was summoned or produced in evidence in order to prove execution and genuineness of the gift-deed. No application appears to have been filed by the appellant for sending the signatures of the alleged donor (Syed Amjad Hussain Jafri) to the Hand Writing Expert for its comparison with his admitted document. None was summoned from LDA to prove the documents relied upon by the appellant. When the appellant has not been able to prove the execution of the valid gift-deed, then subsequent letters, even if admitted, would not advance the case of the appellant, as those are based on alleged gift-deed. It has rightly been noted by the learned Judge Banking Court that none of the other alleged donees (Respondents Nos. 6 to 11) entered appearance in evidence to support the case of the appellant. It has not been established through evidence that the alleged donor/Respondent No. 2 had, in fact, appeared before the Local Commissioner/Registrar at the time of the registration of gift-deed and acknowledged his signatures and the execution of the gift-deed. It has been held by the Hon'ble Supreme Court of Pakistan in the case reported as Abdul Majeed and 6 others vs. Muhammad Subhan and 2 others (1999 SCMR 1245) that when the execution of a sale-deed could not be proved and it could also not be established that the plaintiff had appeared before the Registrar at the time of registration and payment of sale consideration could not be substantiated then the sale-deed was a void document. In this case too, as noted above, it has not been proved that the alleged executant of the gift-deed appeared before the Local Commissioner/Registrar and he did acknowledge the execution of the gift-deed, therefore, to our mind, said gift-deed is also a void document.
There cannot be any cavil with the proposition that under the Islamic Law a gift can be made orally if the three ingredients, i.e. offer of gift, its acceptance and delivery of possession, are established on record. Suffice it to say that the case of the appellant is not based upon the oral gift but from the very inception the appellant is only relying upon the gift-deed and, therefore, at this stage it can neither be argued nor held that even if the gift-deed is not proved, the oral gift may be accepted. It is settled law that a party to litigant can only succeed according to what was alleged and proved and he cannot be permitted to deviate from his pleadings nor can set up different pleas. Reliance can be placed to Amir Shah vs. Ziarat Gul (1998 SCMR 593), Mst. Jannat Bibi vs. Sher Muhammad and others (1988 SCMR 1696), Binyameen and 3 others vs. Chaudhry Hakim and another (1996 SCMR 336) and Anwar Ali and others vs. Manzoor Hussain and another (1996 SCMR 1770). Now when the appellant has failed to prove the execution of valid and legal gift, she cannot be allowed to fall back upon the oral gift.
There is another aspect of the case, on which the learned Judge Banking Court has mainly relied upon, while dismissing appellant's objection petition. Admittedly, the gift-deed was got registered in the office of Sub-Registrar Saddar, whereas the property is situated at Gulberg and falls within the jurisdiction of Sub-Registrar, Model Town. Section 28 of the Registration Act, inter alia, provides that every document mentioned in Section 17 shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate. In this case, as noted above, Sub-Registrar Model Town had the jurisdiction to register the document. The learned Judge Banking Court has rightly relied upon the case of Muhammad Mushtaq and another vs. Bashir Ahmed Chaudhry and another (PLD 1991 Lahore 400), wherein it has been held, with reference to Section 28 of the Registration Act and the Registration Rules, that registration of sale-deed by Registrar relating to land which was outside his territorial jurisdiction was without jurisdiction and void.
In the above perspective, we have examined the impugned order and find that the appellant has comprehensively failed to prove the execution and existence of valid and legal gift-deed qua the mortgaged property which stood mortgaged in favour of the respondent Bank. The impugned order is legal and does not call for any interference by this Court, thus, the same is maintained.
Upshot of the above discussion is that the present appeal is devoid of merits, hence the same stands dismissed in limine.
(Waseem Iqbal Butt) Appeal dismissed.
PLJ 2006 Lahore 1201
Present: Ali Nawaz Chowhan, J.
MEHRAN ENGINEERING WORKS--Appellant
versus
REGISTRAR TRADE MARKS--Respondent
F.A.O. No. 71 of 2004, heard on 24.4.2006.
Trade Marks Act, 1940 (V of 1940)--
----Ss. 14(3), 46 & 37--Registration of trademark--Opposition applications having been disallowed, it was not possible for the Registrar to proceed with the application for registration of the same trademark, in which he had refused the opposition petition and rejected the same--S. 46 of Trade Mark Act, 1940, required separate decisions in these matters--Question of--Registrar had to decide the application u/S. 46 in context with earlier decision and not in isolation--Held: High Court has no hesitation in making reference u/S. 37 of Trade Marks Act, 1940 that in case the appellant was able to establish from authentic documents that he has a case of prior user, he might invoke the provisions of S. 37 before the Registrar, but only on serious basis--These matters fail and are disposed of accordingly. [Pp. 1202, 1203 & 1204] A, B & C
Mr. M. Shakeel Abid, Advocate for Appellant.
Mr. Hussan Irfan Khan, Advocate with Mr. Sajjad Ahmad Khokar, Mr. Gull Shar, representation of Deptt. for Respondent.
Date of hearing: 24.4.2006.
Judgment
This judgment is going to dispose of F.A.O. No. 71/2004, F.A.O. 72/2004 & F.A.O. No. 241/2004. These relate to the registration of trademark and the impugned order which attracts these causes in appeal is an order dated 6.12.2003 passed by the learned Registrar of Trademarks in appellant's Opposition No. 178/2002 and Opposition No. 276/2002 and the third F.A.O. is against refusal of an application for taking action under Section 14(3) read with Section 46 of the Trademark Act of 1940.
The appellant i.e. Mehran Engineering Works are aggrieved because the trademark was allowed to be registered in the name of the respondent's side and the opposition applications against this filed by the appellant were dismissed by the Registrar Trademarks. Who also dismissed another application of the appellant asking for registration of this trademark in favour of the appellant.
Precisely, vide his judgment of 6th December, 2003, with respect to disallowing the opposition petition, the Registrar Trademarks while releasing the opposition disbelieved the case of the appellant with respect to prior user of the trademark i.e. since 1995 and granted the registration in favour of the respondent's side who had claimed the use of the trademark since 1992.
In F.A.O. No. 241/2004, the application for registration of the same trademark was refused in view of the fact that the opposition applications afore-mentioned had been already refused.
Precisely, it is the case of the appellant that the Registrar Trademarks did not advert to the evidence which was produced in the petition for registration i.e. F.A.O. No. 241 of 2004 and he misplaced the file wherein were placed documents to establish that the appellant was the prior user i.e. since 1995. It was further stated that the Registrar had committed certain irregularities while disposing of this case. That he agreed to advertise the case in the Trademark Journal but later resiled from the same on frivolous ground.
Regarding the other two appeals bearing Nos. F.A.O. No. 71/2004 & F.A.O. No. 72/2004, it was said that the opposition petitions were wrongly dismissed.
The question is whether after the dismissal of the opposition applications aforementioned on 6th December, 2003, could the Registrar proceed with the appeal which is the subject-matter of F.A.O. No. 241/2004.
Some dates too are relevant. The applications for registration which is the subject-matter of F.A.O. No. 71/2004 and F.A.O. No. 72/2004, were said to have been filed on 8th February, 1998 and the applications were allowed to proceed further in the matter for purposes of registration. Later the opposition applications were filed on 18.1.2003, whereas the order pertaining to F.A.O. No. 241/2004 was given on 3.7.2004. With respect to the former two opposition petitions, the order was given on 6.12.2003.
Therefore, the opposition petitions having been disallowed, it was not possible for the Registrar to proceed with the application for registration of the same trademark in which he had refused the opposition petition on 6.12.2003 and, therefore, rejected the same on 2.7.2004.
What bothered the appellant was then separate dealing of the registration matter for sometime in these connected matters with the result the earlier decision was given on 6.12.2003 in opposition proceedings, whereas, in the proceedings for registration the decision was given on 2.7.2004. Had these been taken up and decided together. Perhaps the acrimony against the order would not be there. As to why the Registrar staggered the issues and did not decide these together although both were pending and both were against the same parties and were filed by the same petitioners, is a mystery. But speaks of "mal-administration" at his end. However, the ultimate decision in disallowing Application No. 241/2004 in view of the earlier orders of 6th December, 2003 in the opposition application, was not an error except for what has been observed above.
It is argued by the learned counsel for the appellant that Section 46 of the Trademark Act, 1940, required separate decisions in these matters. The question is that if the opposition applications had been disallowed and these were in the knowledge of the Registrar, how could he proceed under Section 46 separately and create an adversity in judgments? He could not have done so. And, therefore, I disagree with the contention that despite the decision given in the opposition applications he ought to have continued to proceed further under Section 46. He had to decide the application under Section 46 in context with the earlier decision and not in isolation. This argument has, therefore, no weight.
Before this Court, another argument of the learned counsel for the appellant was that the Registrar did not advert to documents showing the appellant as prior user since 1995. This Court allowed opportunity to the appellant to produce those documents before this Court for establishing what he was stating and for making a prima facie case in that respect. He has produced some photocopies of documents which do not help him at all.
(a) Document `A' is a certification given by Multan Chamber of Commerce & Industry speaking of a period when the appellant was registered with Chamber of Commerce and not with the Trademark Registrar, so the Chamber of Commerce had no locus-standi to speak on the subject of prior user. (b) The next is a certificate of registration of the copyright but this is issued on the August 2001, and does not provide a link with respect to the appellant being a user prior. The rest are the private vouchers pertaining to certain supplies made by the appellant in the name of Mehran Engineering Works and do not assist us in resolving the proposition in hand.
Another is a certificate of registration of firm which pertains to 26.1.1997. There is also a letter from the department of Income Tax reflecting that Mehran Engineering Works has been given a national tax number. It makes no mention of the use of the trademark "KAM" and the sale tax return also pertains to the year 1997 providing no help in this matter.
So these documents are of no use or of help in coming to a conclusion that there is a prima facie case with respect of the prior user and, therefore, the non-advertence of the Registrar to these documents has led to miscarriage of justice requiring the remand of the case for adjudication on merits.
Anyway, having said that this Court has no hesitation in making reference under Section 37 of the Trademark Act, 1940, and to observe that in case the appellant is able to establish from authentic documents that he has a case of prior user, he may invoke the provisions of Section 37 before the Registrar but only on a serious basis.
The upshot of the above discussion is that these matters fail and are disposed of accordingly.
(T.S. Faisal) Matters disposed of.
PLJ 2006 Lahore 1204 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
ABDUL RASHID--Petitioner
versus
MEMBER BOARD OF REVENUE, (JUDICIAL-III) PUNJAB LAHORE and another--Respondents
W.P. No. 1560 of 2006, heard on 16.5.2006.
Colonization of Government Lands (Punjab) Act, 1912 (V of 1912)--
----S. 30(1)(2)--Transfer of Property Act (IV of 1882), S. 10--Proprietary rights--Allotment of state land to petitioner, under lease scheme--Review was dismissed--Assailed--Condition in conveyance deed granting proprietary rights to petitioner in such land is wholly void being the condition in restraint of alienation--Section 30(1) of the Act of 1912, lays down that upon grant of proprietary rights tenant shall seize to be subject to any statement of conditions, except the condition set out in Schedule-II to Act, 1912--No such restraint of alienation is to be read in Schedule-II--Power given to Board of Revenue is exercisable upon satisfaction that a person has acquired tenancy rights by means of fraud or misrepresentation that he was not eligible to have such rights for any reason whatsoever--Petitioner had acquired tenancy rights by means of fraud or that he was ineligible to have such rights--Petition allowed. [P. 1205] A & B
Ch. Muhammad Hussain Jehania, Advocate for Petitioner.
Ex-parte for Respondents.
Date of hearing: 16.5.2006.
Judgment
As per contents of this WP as also of the order of DO(R) Lodhran (Annex-D) and of the Respondent No. 1 (Annex-E) State land mentioned in Para No. 1 of the WP was allotted to the petitioner under five years lease scheme. He was held eligible for conferment of proprietary rights and a conveyance deed was executed and registered on 5.4.1999 in his favour (Annex-A). Information was laid before the DO(R), Lodhran that the petitioner has alienated the said land vide Mutation Nos. 331, 332, 333, 334 and 391 attested on 19.11.2001. Vide memorandum dated 31.3.2003 the DO(R) reported the matter to the Deputy Secretary (Colonies) Board of Revenue, Punjab for cancellation of the deed under Section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912. Vide order dated 26.12.2003, Respondent No. 1 cancelled the conveyance deed u/S. 30(2) of the said Act.
Learned counsel for the petitioner contends that both the respondents failed to examine that the alienations were made by the petitioner in favour of his mother and his sons and not for seeking the profits or enrichment. Vehemently contends that no grounds existed within the meaning of Section 30(2) of the said Act of 1912, for cancellation of the conveyance deed. The respondents have been duly served for today as per report on the process issued by the Court. The case has been repeatedly called but no one has turned up for them; they are proceeded against ex-parte.
The impugned order dated 6.12.2003 alleges that the conveyance deed has been cancelled on the ground that the petitioner did not obtain permission of the Board of Revenue prior to the said alienations. Now I find that in the said conveyance deed towards the end of the proforma it has been added in type that no grantee shall alienate by sale, mortgage, gift or otherwise the whole or any part of his grant before or during period of five years after the date of execution of deed of conveyance without the previous consent in writing of the Board of Revenue, Punjab.
To my mind, the said condition in the said conveyance deed granting proprietary rights to the petitioner in the said land is wholly void being the condition in restraint of alienation. Section 10 of the Transfer of Property Act, 1882 is quite specific on the subject. Section 30(1) of the said Act of 1912, lays down in clear terms that upon grant of proprietary rights the tenant shall seize to be subject to any statement of conditions except the condition set out in Schedule-II to the said Act. No such restraint of alienation is to be read in the said Schedule-II to the said Act.
Now the respondents have purported to act under sub-section (2) of the said Section 30 while passing the impugned order. I find that the power given to the Board of Revenue under the said provision of law is exercisable only upon satisfaction that a person has acquired tenancy rights under the said Act by means of fraud or misrepresentation or that he was not eligible to have such rights for any reason whatsoever. What to speak of findings, there is not even an allegation that the petitioner had acquired initial tenancy rights by means of fraud or misrepresentation or that he was ineligible to have such rights. The impugned orders are, therefore, found to be wholly without jurisdiction. The WP accordingly is allowed and the impugned order dated 6.12.2003 of Respondent No. 1 is declared to be illegal, void, without lawful authority and is set aside. No orders as to costs.
(T.S. Faisal) Petition allowed.
PLJ 2006 Lahore 1206
Present: Muhammad Jehangir Arshad, J.
MUHAMMAD ISMAIL--Appellant
versus
RANA GHULAM MOHY-UD-DIN--Respondent
S.A.O. No. 127 of 2004, decided on 29.5.2006.
Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13-A--Bona fide personal required--Determination--Ejectment petition on the ground of personal requirement--Acceptance of--Appeal dismissed--Assailed--Service of notice under S. 13-A of Rent Restriction Ordinance, has the only effect of saving a tenant from ejectment on ground of default in case the notice is not served upon tenant by new landlord after his purchase from previous landlord, but the same has nothing to do or has no effect on the maintainability of ejectment application on the ground other than of default in payment of rent--Even non-mentioning of demand for vacation of the premises on the ground of personal need of landlord in notice would not in any manner reflect on bona fide requirement of the premises by landlord--S.A.O. dismissed.
[P. 1208] A & B
Mian Israr-ul-Haq, Advocate for Appellant.
Mr. Muhammad Iqbal Akhtar, Advocate for Respondent.
Date of hearing: 29.5.2006.
Order
The appellant being the tenant of the respondent in ejectment proceedings, is aggrieved of the concurrent findings recorded by learned Rent Controller, Jhang on 8.10.2002 directing his ejectment from the premises (Shop No. 248-F Block-9, Shaheed Road, Jhang Cantt.) and also the order dated 22.9.2004 passed by learned Additional District Judge, Jhang dismissing his appeal against the above-mentioned ejectment order of the learned Rent Controller.
ISSUES:
Whether the petition has been filed just to harass the respondent which is vexatious and frivolous, hence liable to be dismissed? OPD
Whether the petitioner has no cause of action to bring this petition? OPD
Whether the petitioner is in bona fide need to vacate the suit shop for his personal need? OPP.
Relief.
The respondent in his evidence produced Muhammad Iqbal (Petition Writer) AW-1, appeared himself as AW-2, produced Abdul Aleem AW-3 and Zishan AW-4. Thereafter, by tendering documents Ex.A-1 and Ex.A-2 closed his evidence. In rebuttal the appellant produced Zawar Hussain RW-1, Aamir Latif RW-2 and closed his evidence by appearing himself as RW-3. On the conclusion of the trial, the learned Rent Controller vide order dated 8.10.2002 answered Issue No. 3 in favour of the respondent and against the appellant, resultantly the ejectment petition of the respondent was allowed and appellant was directed to vacate the suit property within a period of one month. Against the above-mentioned judgment of the learned Rent Controller the appellant brought an appeal but the same was also dismissed by the learned Additional District Judge, Jhang on 22.9.2004, hence this S.A.O.
The only point raised by the learned counsel for the appellant (Mian Israr-ul-Haq, Advocate) in support of this appeal is that after purchasing the property in dispute from the previous owners namely Anjum Saleem, etc. the respondent issued first notice on 29.9.2001 to the appellant under Section 13-A of the Rent Restriction Ordinance informing the appellant about change of ownership and demanding rent from the appellant and through a subsequent notice (Ex.R-1) dated 6.10.2001 not only the respondent claimed increased rent i.e. Rs. 2925/- to Rs. 4200/- but also for the first time informed the appellant to vacate the shop as the same was required by the respondent for his personal bona fide need. From this the learned counsel for the appellant has inferred that had the property in question been required to the respondent for his personal bona fide need, he could very well mention the same in his first notice dated 29.9.2001 and by omitting to mention his personal bona fide need in the first notice, it could be inferred that premises was not required by the respondent for that purpose, rather he was out to eject the appellant without any specific reason. Hence, the findings of two Courts below on Issue No. 3 that premises was required for bona fide personal use, were neither correct nor sustainable in law. In support of his above-mentioned contention the learned counsel for the appellant has placed reliance on the case "Ikram Ullah Khan versus Muhammad Umar" (1984 CLC 645).
On the other hand, learned counsel for the respondent/landlord has vehemently opposed this appeal by arguing that there are concurrent findings of facts recorded by two Courts below about personal bona fide need of the respondent and that the above-mentioned arguments of learned counsel for the appellant are not legally sustainable, hence, this SAO is liable to be dismissed.
I have given my anxious consideration to the above-mentioned arguments of learned counsel for the parties and have also perused the record with their assistance.
After proper appraisal of the evidence on record and consideration of the above-mentioned arguments of learned counsel for the parties, I am afraid that argument of learned counsel for the appellant is legally maintainable. As held by the Hon'ble Supreme Court of Pakistan in the case "Sabu Mal versus Kika Ram alias Hemandas" (1973 SCMR 185), service of notice under Section 13-A of the Rent Restriction Ordinance, 1959 has the only effect of saving a tenant from ejectment on the ground of default in case the said notice is not served upon him by the new landlord after his purchase from the previous landlord but the same has nothing to do or has no effect on the maintainability of ejectment application on the grounds other than of default in the payment of rent. In a subsequent judgment titled "Muhammad Hussain versus Haji Chaudhry Umar Bakhsh and another" (PLD 1982 SC 212) the Hon'ble Supreme Court followed the earlier judgment reported as "Sabu Mal versus Kika Ram alias Hemandas" (1973 SCMR 185) and till date the same holds the field. Rather, in another subsequent judgment on almost similar facts as are in the case in hand, the Hon'ble Supreme Court of Pakistan in the case "Mst. Umme Khatoon versus Mst. Umme Salam" (PLD 1990 SC 755) held that even non-mentioning of demand for vacation of the premises on the ground of personal need of the landlord in notice under Section 13-A of the Rent Restriction Ordinance would not in any manner reflect on the bona fide requirement of the premises by the landlord. In the presence of above-mentioned dictum of the Hon'ble Supreme Court of Pakistan, no further argument against the impugned judgments of two Courts below is required and thus the case law cited by learned counsel for the appellant looses its value. The learned counsel for the appellant has not been able to point out any other illegality or irregularity in the findings of two Courts below which are not only concurrent but also finally determine the question of fact viz. bona fide personal required of the premises by the respondent.
The upshot of above discussion is that this S.A.O. has no force and is accordingly dismissed. However, the appellant is allowed to vacate the shop in dispute and hand over its vacant possession to the respondent/ landlord till 31.8.2006, failing which the respondent shall be at liberty to obtain possession by initiation of execution proceedings.
(T.S. Faisal) S.A.O. dismissed.
PLJ 2006 Lahore 1209 (DB)
Present: Jawwad S. Khawaja and Sayed Zahid Hussain, JJ.
MUDASSAR IQBAL BUTT--Appellant
versus
SHAUKAT WAHAB and others--Respondents
R.F.A. No. 478 of 2005, heard on 9.5.2006.
Defamation Ordinance, 2002 (LVI of 2002)--
----Ss. 4 & 8--Correction off scandalous allegations--Suit for damages on account of defamation--Decreed--Appeal against--Contents of the news items were defamatory--Truth of the contents of news items could of course have constituted a good defence--Defendants have been unable to prove the correctness of the scandalous allegations--There was no evidence to show that any investigation or probe was undertaken by defendants to establish the veracity of news items in question--Only if such probe had been made diligently and in good faith, could the defendants have shown that they had acted without malice and in public interest--Having failed to do so they must be held liable for defaming plaintiff--Plaintiff/respondent had issued notices to the defendants under Section 8 of the Defamation Ordinance--Prerequisite for filing a suit under the Defamation Ordinance stands proved--Appeal dismissed with costs throughout. [P. 1211] A & B
Mr. Muhammad Yasin Bhatti, Advocate for Appellant.
Sh. Muhammad Asif, Advocate for Respondents.
Date of hearing: 9.5.2006.
Judgment
Jawwad S. Khawaja, J.--Shaukat Wahab (Plaintiff/Respondent No. 1) filed a suit against the appellant and Respondents Nos. 2 and 3 seeking damages amounting to rupees twenty million on account of defamation. The suit was filed under the Defamation Ordinance, 2002. The grievance of the respondent/plaintiff arose from three news items (Ex.P. 8 to Exh.P.9) appearing in the Daily "Postmortem" Lahore.
The appellant/defendant is the Chief Executive of the aforesaid daily while Respondents Nos. 2 and 3 were respectively the Chief Editor and correspondent of the said Daily when the aforesaid news items were published. According to the plaintiff, the news items were highly defamatory and false. The three defendants filed a joint written statement in which they took the plea that the news items were true and also that the defendants did not harbour any malice or enmity against the plaintiff. Based on the pleadings of the parties, the learned trial Court framed the following issues:--
Whether the suit has been instituted without furnishing legal requirement, if so, its effect? OPD.
Whether the plaintiff has no cause of action against the defendant? OPD.
Whether the plaintiff has not come to the Court with clean hands? OPD.
Whether in order to defame the plaintiff, the defendant flashed a false news story in their newspaper, which was baseless and intended to damage the reputation of the plaintiff and his department? OPP.
4-A. Whether the defendant published the disputed news in their newspaper daily `Post-Mortem' on 29.12.2002 impartially and in the interest of public? OPD.
Whether after the publication of the said news story the plaintiff lost his reputation? OPP.
Whether the plaintiff is entitled to a decree for a sum of Rs. 2,00,00,000/- as prayed for? OPP.
Relief.
The plaintiff himself appeared as PW-1 and produced Fayyaz-ul-Hassan as PW-2. These witnesses deposed that the news items were without any factual basis and that the same were motivated by malice because the plaintiff had failed to accept the intervention made by Aman Ullah Khan (Defendant/Respondent No. 3) on behalf of owners of certain medical stores challaned by the plaintiff. The defendants only examined Aman Ullah Khan as DW-1. At the outset we have examined the three news items which have been produced on record as Exh.P.8, Ex. P.9 and Ex.P.10. It will suffice for our purposes to reproduce the headlines of these news items:
It was not denied by the defendants that the aforesaid news items did appear in the daily "Post-mortem" or that the same related to the plaintiff.
The contents of the news items are patently defamatory. Truth of the contents of the news items could of course have constituted a good defence. The plaintiff and his witness, namely, Fayyaz-ul-Hassan, deposed that the news items in question were false. The onus of proving that the news items were true, thus shifted onto the defendants. They have been unable to prove the correctness of the scandalous allegations made in Exh.P.8 to Ex.P.10. The solitary statement of one of the defendants as DW.1 was certainly not enough on this score. Consequently, the defence set up in the written statement that the news report was true has not been established on record.
The other ground raised by the defendants in their written statement by way of defence was that the news items were published impartially, without malice and in the public interest. This defence has been reflected in Issue No.
A reproduced above. There is no evidence to show that any investigation or probe was undertaken by the defendants to establish the veracity of the news items in question. Only if such probe had been made diligently and in good faith, could the defendants have shown that they had acted without malice and in the public interest. Having failed to do so they must be held liable for defaming the plaintiff.
It is also clear from the testimony of the respondent/plaintiff that he had issued notices to the defendants under Section 8 of the Defamation Ordinance. When Respondent No. 3 appeared as DW. 1, he denied having received notice but admitted that the acknowledgement due receipt bore his correct address. The other two defendants (the appellant and Respondent No. 2 herein) did not bother to take the witness stand. In the circumstances, the legal presumption that a registered letter was duly delivered to and received by the addressee remains unrebutted. In the circumstances, the perquisite for filing a suit under the Defamation Ordinance stands proved.
The respondent/plaintiff has a graduate degree in Pharmacy. He is a Gazetted Officer of the Health Department and has been working as a Drug Inspector for some years. The news items (Exh.P.8 to P.10) undeniably have affected his reputation. Issue No. 5, therefore, was also rightly decided in the affirmative by the learned trial Court.
While deciding Issue No. 6, the learned trial Court has awarded a sum of Rs. 10,00,000/- to the respondent/plaintiff by way of damages. Learned counsel for the appellant was unable to advance any argument to show that the award was excessive. We have come to the conclusion, based on the contents of Exh.P.8 to Ex.P.10, that the same were highly defamatory, indeed scandalous. Furthermore, we are of the view that the news items in question are prime examples of irresponsible journalism. The quantum of damages awarded to the respondent/plaintiff could have been much higher had the respondent/plaintiff filed cross-objections. However, since no objections have been filed, we affirm the finding of the learned trial Court on Issue No. 6.
In view of the above discussion, we find no merit in this appeal which is, therefore, dismissed with costs throughout.
(T.S. Faisal) Appeal dismissed.
PLJ 2006 Lahore 1212
Present: Sayed Zahid Hussain, J.
M/s. SHEIKH SPINNING MILLS LTD., LAHORE through its OFFICE MANAGER--Petitioner
versus
GOVERNMENT OF PUNJAB, IRRIGATION & POWER DEPARTMENT through its SECRETARY and 5 others--Respondents
W.P. No. 8689 of 2005, heard on 17.5.2006.
Electricity Act, 1910 (IX of 1910)--
----S. 26(6)--Constitution of Pakistan, 1973, Art. 199--Question of--Correctness/legality or otherwise of the detection bill--Recommendation/report sent by the advisory committee to secretary irrigation and power department for final decision--Countersigning of the recommendation either render it valid and legal decision--Held: Mere approval by the secretary, irrigation and power was not enough to meet the requirement of law in particular when the notification itself empowered him to render a final decision--Mere countersigning of the recommendations of the committee was not contemplated by law. [Pp. 1214 & 1215] B & C
Words and Phrases--
----"Decision"--Ordinary meaning--It means an act of deciding or setting a dispute or question by giving a judgment; the act of making up ones mind a judgment or conclusion reached or given. [P. 1214] A
Miss Nadia Nabi, Advocate for Petitioner.
Ch. Aamer Rehman, Addl. A.G. Punjab for Respondents.
Mr. Muhammad Ilyas Khan, Advocate for WAPDA.
Date of hearing: 17.5.2006.
Judgment
After having agitated the matter time and again before this Court, the dispute about the correctness/legality or otherwise of the detection bill eventually reached the Electric Inspector who passed order dated 14.11.2002. Against that order an appeal was filed before the Advisory Board Punjab by the contesting respondents, (shortly referred to as WAPDA), which appeal was heard on 6.12.2003. In order to remove obscurity about the date of order passed by the Advisory Board, the proceedings/order-sheet has been produced. It is evident from the perusal thereof that order of the Electric Inspector, Gujranwala dated 14.11.2002 was set aside by the Board on 6.12.2003 for the reason that he had failed to pass the order within 90 days. By doing so it was observed by the Advisory Board that "The main appeal shall be treated as a reference to the Government which shall accordingly be heard by the Advisory Committee constituted by Punjab Government vide Notification No. S.O. (Power) I&P 1-1/2002 dated 23.9.2002." The proceedings were then conducted by the Committee comprising two members and a Chairman, who recorded its recommendations that "the Committee recommends that the respondent have rightly charged a detection bill of Rs. 57,80,075/- for the period from 1/93 to 6/94 and the same is payable by the petitioner". Although these recommendations do not bear any date yet from the proceedings file it appears that after hearing the arguments on 24.12.2004 recommendations were prepared on 11.3.2005 and were placed for consideration before the Government. The perusal of the file shows that S.O. (Power forwarded the recommendations of the Committee to D.S. (Power) for perusal/approval by the Secretary. The file then moved to DS (L) who forwarded it to AS (T). Noting in para-53 received the approval from Secretary Irrigation & Power which reads like this: "Ref up 48-49/above and the recommendations of DS(L) at up 52/above, the findings/recommendations of the Special Committee at flag-`A' are placed below for kind perusal/approval." It was "approved" by the Secretary on 8.4.2005, as is evident from paragraph-54 of the proceedings file. Thereafter on 18.4.2005 it was directed the "Findings/recommendations of the Special Committee has been approved by the Secy. I&P at para-54/ante. Pl. inform the parties concerned." The present petition seeks to assail the disposition of the matter in the manner it has been done and demand notice dated 10.5.2005 issued as a consequence thereof.
The learned counsel for the parties have been heard.
In view of the order that I propose to pass after consideration of the matter, I will refrain from dilating upon the respective contentions of the learned counsel for the parties or making any observation there about. Suffice it to observe that the Committee which ultimately heard the matter and recorded its findings/recommendation had been constituted pursuant to the statutory provisions i.e. S. 26(6) of the Electricity Act, 1910, which Committee was obliged to "submit his report/recommendations to Secretary Irrigation and
Power Department for final decision." The notification constituting the
Committee issued by the Government of Punjab, Irrigation & Power Department on 23.9.2002 lays down the procedure to be followed by the Committee, which in terms of para-7 of the Notification had to hear the parties and forward its recommendations to the Secretary, Irrigation & Power Department for
"final decision". As is evident from the proceedings mentioned above, the recommendations had been submitted by the Committee to the Secretary, Irrigation
& Power Department who simply recorded his approval on the order-sheet. No order evincing his final decision' is available. This was not consistent with the law and was not even in accord with the Notification itself. The power of
"decision" finally rested with the Secretary, Irrigation & Power.
The expression "decision", in its ordinary understanding and parlance means an act of deciding or settling a dispute or question by giving a judgment; the act of making up ones mind a judgment or conclusion reached or given. Reference in this context may be made to Muhammad Ramzan v. Trustees of
Port of Karachi (1990 CLC 1086). It implies the due application of mind by the authority concerned to the facts and controversy involved. Mere "approval" by the Secretary, Irrigation & Power was not enough to meet the requirement of law in particular when the notification itself empowered him to render afinal decision'. In Ghulam Mohi-ud-Din v. Chief Settlement Commissioner
(Pakistan), Lahore and others (PLD 1964 SC 829) it was observed that "By merely countersigning on the note of the Settlement Commissioner (Policy), we are clearly of the view, the Chief Settlement Commissioner had not exercised the jurisdiction vested in him in accordance with law and that there was no proper disposal of the revision petitions filed before him". In Fazal
Dad and 2 others v.
Members, Board of Revenue (Colonies) West Pakistan and another (PLD 1977 Lahore 264) also such a noting approved by the Collector was not approved and it was observed that "Collector in the instant case also did not independently examine the case and there was no proper disposal of the case on this point. As a result of defects hereinbefore mentioned in the impugned orders, the same shall have to be declared as to be without lawful authority and of no legal effect against the petitioners and the case shall have to be remanded to the learned Collector for fresh decision in accordance with law." Since Respondent No. 1 before taking `final decision' as contemplated by Notification dated 23.9.2002 had neither heard the petitioner nor recorded its own decision, mere countersigning of the recommendations of the Committee was not contemplated by law.
Moreover the recommendations of the Committee cannot be equated with nor given the status of the `final decision' by the Secretary, Irrigation & Power Government of Punjab (Respondent No. 1). The approval thus accorded by Respondent No. 1 on the proceedings file of no legal significance and effect. Result thereof is that for final decision Respondent No. 1 will have to consider the matter afresh by affording opportunity of hearing to the parties. The parties may be at liberty to raise such pleas/points before Respondent No. 1 as may be available to them under law. n view of the above demand dated 10.5.2005 made from the petitioner has no valid basis which is declared as no legal effect. The petition is accepted to this extent with no order as to costs.
(Waseem Iqbal Butt) Case remanded.
PLJ 2006 Lahore 1215 (DB)
Present: Mian Saqib Nisar and Sayed Zahid Hussain, JJ.
SHAHIDA PARVEEN etc.--Appellants
versus
SAMIULLAH MALIK etc.--Respondents
R.F.As. Nos. 331 and 334 of 1999, heard on 25.1.2006.
Contract Act, 1872 (IX of 1872)--
----Ss. 73 & 74--Marriage--Either it equate with the ordinary contract-whether the provisions of Contract Act or General Law attracted--Marriage bond between the two Muslims is in the nature of a civil contract, but at the same time it shall be a grave misconception to equate it with the ordinary contracts of sale purchase, the property transactions or for those to provide personal services, etc. entered into between the parties under the contract laws--There is no concept of any breach of marriage contract, obviously the provisions of section of the Contract Act or the General Law in this behalf shall not be attracted. [P. 1222] D & E
Damages--
----Defamatory in nature--Suit for dissolution of marriage was filed on the ground that husband had imputed of being professional dancer--Suit was decreed--Libel/defamation--Defamatory in nature and defaced in eyes of his friends, family and public--Decree for damages of an amount of Rs. 24,00,000/- --Respondent filed suit for recovery of specified amount as damages against appellant that in suit for dissolution of marriage the appellant on behest of her father levelled false, unfounded, frivolous and malicious allegations about character of respondent which were defamatory in nature and he had been ridiculed and defaced in eyes of his friend family and public therefore sought decree for damage--Respondnet had proved the case of defamation/libel against appellant--But damages awarded under impugned decree were punitive rather compensatory, therefore in light of dictum, High Court reduced the amount.
[Pp. 1217 & 1221] A & C
Gift--
----Gift exchanged by bride and bridegroom or given to them by relatives of the either side including Salamis, cannot be recovered through process of law--But this would not effect the bride right to seek return of her dowry articles and bridegroom's to recover Buri articles, a term which is understood in our culture and marriage rituals. [P. 1222] F
Limitation Act, 1908 (IX of 1908)--
----S. 3--Plea of limitation not raised in lower forum nor in memo of appeal--Plea repelled--It is the duty of the Court under Section 3 of the Limitation Act to dismiss the suit & appeal, if it is barred by time, even if the defendant/respondent has not taken an objection in this behalf, but at the same time, if the question of limitation is dependant upon the proof and determination of facts and the factual foundation has neither been pleaded or proved by the defence, Court is not bound to decide the same.
[P. 1220] B
Mr. Khadim Hussain Qaiser, Advocate for Appellant.
Mr. Sadaqat Mahmood Butt, Advocate for Respondent.
Date of hearing: 25.1.2006.
Judgment
Mian Saqib Nisar, J.--Both the noted RFA and RFA No. 334/1999 have been filed by the parties to the litigation, against the same judgment and decree of the learned trial Court, therefore, these are being disposed of together.
that the appellant in RFA No. 331/1999, was married to the respondent; Nikah between the parties was performed on 7.2.1997 and the Rukhsati took place on 15.2.1997, but the marriage could not be consummated due to the reason that the same night, the appellant's father allegedly fell sick; her near relations came to fetch her from the respondent's house on the above pretext and took her back and thereafter, she never returned to the respondent, rather brought the suit for the dissolution of her marriage, on the grounds stated therein, primarily on account of Khula. However, in the plaint of this suit, the allegations about the character of the respondent were made; he was imputed of being a professional dancer, who performs in the public functions for consideration. To be more precise, he was alleged to be a " ". This suit for the dissolution of marriage was contested by the respondent, who took up the defence that the story about the ailment of the appellant's father was false, and was a bluff, concocted by the appellant's relations with an object to take her back. Be that as it may, the Family Court, on the basis of Khula, passed the decree for the dissolution of marriage in favour of the appellant and against the respondent, which has attained finality.
There were some other cases pending inter se the parties, such as for the recovery of dower, dowry etc., when on 6.7.1998 the respondent filed the present suit for the recovery of an amount of Rs. 30,00,000/- as damages, against the appellant and her father averring therein that in the suit for the dissolution of marriage, the appellant on the behest of her father, has leveled false, unfounded, frivolous and malicious allegations about the character of the respondent/plaintiff, which are defamatory in nature and thus, on the basis of the above, he has been ridiculed and defaced in the eyes of his friends, family and the public and, therefore, he sought the decree for the damages of an amount of Rs. 24,00,000/- on this account; further damages were also claimed under the various heads, the breakup of all is provided as under:
The appellant contested the matter. She denied of having made any defamatory remarks against the respondent and set out the defence of truth. Thus, the parties were put to trial and the following issues were framed:--
Whether the suit of the plaintiff is frivolous and vexatious? OPD-2.
Whether the plaintiff has not came to the Court with clean hands? OPD-2.
Whether the plaintiffs is estopped by his words and conduct to file the suit? OPD-2.
Whether the plaintiff has got no cause of action against the Defendant No. 2 to file the suit? OPD-2.
Whether the plaintiff and his parents concealed the facts and fraudulently got married the plaintiff with the Defendant No. 2 whereas after the Nikah and Rukhsati the parents of the Defendant No. 2 came to know that the plaintiff was not a potent man but a eunuch and a professional dancer, as such, the parents of the Defendant No. 2 called back her from the house of the plaintiff to save their prestige and honour? OPD-2.
Whether the Defendant No. 2 is entitled for the special damages u/S. 35-A of the CPC, if the suit of the plaintiff is dismissed? OPD-2.
Whether the plaintiff's suit is liable to be dismissed u/O. 7, Rule 11 CPC? OPD-2.
Whether the plaintiff is entitled for the decree of recovery of Rs. 30,00,000/- being the damages etc.? OPP.
The plaintiff/respondent examined Naseer-ud-Din Hamayun as PW-1, who is his first cousin; PW-2 Muhammad Musa is also the relative of the plaintiff, PW-3 Afzaal Ahmad is his brother-in-law, whereas the plaintiff Sami Ullah appeared as PW-4. No documentary evidence has been adduced by the plaintiff/respondent. Contrarily, the appellant examined herself as DW-1, DW-2 Abdul Aziz and DW-3 Shakeel are her brothers, whereas DW-4 is Tassaduq Hussain. The documentary evidence produced by the appellant is, the plaint in the dissolution case filed by her (Ex.D. 1), evidence of Sami Ullah in that suit (Ex.D.2), suit for the recovery of damages of Rs. 22,00,000/- (Ex.D.3), suit for the recovery of the dowry articles (Ex.D.4), suit for the recovery of dower (Ex.D5), judgment in the suit for the dissolution of marriage (Ex.D.6), Marriage Card (Ex.D.7), written statement in the suit for the recovery of dowry articles (Ex.D.8), written statement in the suit for dower (Ex.D.9), written statement in the damages suit (Ex.D.10) and written statement in the dissolution suit (Ex.D.11); besides, Ex.D.12 is the photograph of the respondent and Ex.D.13 is the Video Cassette, perhaps showing him dancing in some private function.
On the conclusion of the trial, the learned Civil Judge by returning his finding son Issue No. 8 in favour of the respondent, has decreed the suit to the extent of Rs. 10,00,000/-; Rs. 8,00,000/- out of which have been granted in pursuance of the cause of action of the respondent for his libel/defamation, while Rs. 2,00,000/- on account of the other heads. Both the parties aggrieved of this judgment and decree dated 29.4.1999, have filed the present appeals.
The claim of the appellant in RFA No. 331/1999 is that the judgment and decree should be set aside and the suit be dismissed, whereas the plaintiff/appellant in the other case, seeks the enhancement of the damages and his grievance is that the damages under the head No. vii, have been erroneously less allowed, which should be increased.
Learned counsel for the appellant has argued that in the present suit for the recovery of damages, the respondent/plaintiff has only referred to Paragraph No. 5 of the plaint in the suit for the dissolution of marriage, to allege a cause of action, by stating therein about the impeachment of his character, which according to him, is defamatory. But, in the relevant para, there is no defamatory material at all, as no reference to any other paragraphs, in which, he is alleged to be a "Naacha/Dancer" has been made, therefore, the averments of any other part of the plaint do not constitute the cause of action, with the consequences, that the decree cannot be awarded to the respondent for what has not been pleaded. It is also submitted that suit of the respondent was barred by Article 24 of the Limitation Act, because the suit for the dissolution of marriage, which allegedly contains defamatory material, was filed on 3.3.1997, whereas the present suit has been instituted on 6.7.1998, which is beyond limitation by about 4 months. However, when confronted, if the limitation has been a ground of defence in the written statement and any issue was framed by the Court or the parties have led any evidence on this point, the learned counsel for the appellant, by relying upon the judgments reported as Muhammad Shafi through legal representatives vs. Abdul Rehman through legal representatives (PLD 2005 Lahore 129) and Government of Pakistan vs. Muhammad Bashir (PLD 2005 Lahore 74) has argued that the proposition of limitation is a pure question of law and under Section 3 of the Limitation Act, it is the duty of the Court to decide if the suit etc. has been brought within the prescribed period of limitation, even if the defence has not been set out. It is further submitted that for the purpose of a cause of action on account of libel/defamation, the malice and mala fide on part of the defendant should be alleged and proved by the plaintiff, but no evidence in this behalf has been produced by the plaintiff/respondent, rather to the contrary, on the basis of Ex.D.12, the photograph of the plaintiff, which depicts his posture as a dancer, and the video cassette Ex.D.13, in which the respondent is dancing, it stands proved, that the assertion of the appellant in her plaint, imputing the respondent being a "dancer", is correct and based upon truth. It is further submitted that the Court below has illegally and unlawfully granted an exorbitant amount of damages to the respondent on account of alleged defamation/libel, which on the face of the judgment, are punitive in nature and could not be so granted under the law. Reliance in this behalf has been placed upon the judgment reported as. Dr. Q.M. Qarni vs. Mir Khalilur Rehman and 4 others (PLD 1975 Karachi 379). It is further stated that in the statements made by the witnesses of the respondent, none has deposed, if they had read the plaint in the suit for the dissolution of marriage filed by the plaintiff, on account of which, the respondent's prestige, reputation and position in their eyes has been lowered, therefore, it being a case of no evidence, the suit should have been dismissed, rather decreed. Lastly, it is argued that the decree passed by the Court below amounting to Rs. 2,00,000/- under other heads i.e. Nos. iv, v, vi, is absolutely without any proof on the record; the statements of the PWs in this behalf are of the close relatives of the plaintiff, which have no evidentiary value.
Heard. First of all, we would like to meet the point of limitation, raised by the learned counsel for the appellant. In this behalf, it may be held that the plea of limitation has not been set out as a defence by the appellant, therefore, no issue has been framed and resultantly, the parties have not produced evidence on this point. Though, it is the duty of the Court u/S. 3 of the Limitation Act to dismiss the suit, appeal etc., if it is barred by time, even if the defendant/respondent has not taken an objection in this behalf, but at the same time, if the question of limitation is dependent upon the proof and determination of facts and the factual foundation has neither been pleaded or proved by the defence, the Court is not bound to decide the same. It may further be held that the appellant not only has set out any ground of limitation as an attack in the written statement, but this omission is conspicuous in the memo of appeal as well, therefore, the plea is repelled.
As regards the argument that there is no defamatory material in that para of the plaint on account of which, the cause of action has been structured by the plaintiff/respondent, suffice it to say that it is the plaint as a whole, which has to be taken into consideration; besides, it is incorrect to state that the character of the respondent has not been attacked in Para No. 5, because the contents of the said para suggest otherwise; moreover, according to the rule of construction of the legal documents, such as the pleadings, the contents of Para No. 2 shall be deemed embodying in the subsequent para of the plaint, which reads as:
Obviously, the reference about the respondent's character in Paragraph No. 5 relates to the reproduced paragraph; furthermore, while answering the present suit, in Paragraph No. 5 of the preliminary objections of the written statement, it has been averred by the appellant that:
Viewing the case in its over all context, the above allegations are the continuation of the earlier stance of the appellant, which reflect her aversion and venom towards the respondent; these remarks undoubtedly are beyond the limits of decency, and tantamount to deface, defame and ridicule the respondent by the use of derogatory and defamatory language; the appellant in reality throughout has been challenging the respondent's manhood, without having the requisite experience. Furthermore, there is no proof on the record that the respondent is professional dancer; his picture Ex.D-12, which shows him standing at some Hill Station, in no manner depict of him being the dancer; same is the position about the video cassette, in which, the appellant is dancing in a marriage function of either the family or a friend, which now-a-days is common, with the males as well. Even otherwise dancing is no vice of a character, rather it is a feature of art. Therefore, we are of the considered view that the allegations of the appellant in the plaint for dissolution of marriage, amounts to defamation/libel and were made to deface and ridicule the respondent, and those are not proved to be based upon the truth. However, we agree with the learned counsel for the appellant that the amount of Rs. 8,00,000/- awarded on account of the defamation/libel are on the higher side and are punitive in nature, therefore, such cannot sustain in the light of the law laid down by the Honourable Supreme Court, in the case reported as Sufi Muhammad Ishaque vs. The Metropolitan Corporation, Lahore through Mayor (PLD 1996 SC 737), which laid down the rule as under:
"There can be no yardstick or definite principle for assessing damages in such cases. The damages are meant to compensate a party who suffers an injure. It may be bodily injury loss of reputation, business and also mental shock and suffering. So far nervous shock is concerned, it depends upon the evidence produced to prove the nature, extent and magnitude of such suffering, but even on that basis usually it becomes difficult to assess a fair compensation and in those circumstances, it is the discretion of the Judge, who may, on facts of the case and considering how far the society would deem it to be a fair sum, determines the amount to be awarded to a person who has suffered such a damage. The conscious of the Court should be satisfied that the damages awarded would, if not completely, satisfactorily compensate the aggrieved partly."
Although, we are of the considered view that the respondent has proved his case of defamation/libel against the appellant. But at the same time, the damages awarded to him under the impugned decree are punitive, rather compensatory, therefore, in the light of the above dictum, we reduce the amount to Rs. 1,00,000/- (one lac rupees).
As for as the damages under the other heads is concerned, we are of the considered view that those have not been proved; all the witnesses appearing for the respondent, are his very close relatives, whose oral statements, have not been corroborated by any documentary proof or independent evidence. It is not proved on the record, if in the situation, as reflected in the pleadings of the parties, the appellant was wearing any jewelry, when she hurriedly left for the hospital to see her father. The respondent has also failed to prove the amount of Rs. 25,000/- allegedly spent on the Baarat, or the other rituals; there is also no proof, if the respondent had booked any hotel or marriage Hall for his Walema, paid any advance, spent any money for the food, etc. to be served on the occasion. We also find that the respondent has not been able to prove his claim about the damages regarding the other heads.
Notwithstanding the above, although the marriage bond between the two Muslims is in the nature of a civil contract, but at the same time, it shall be a grave misconception to equate it with the ordinary contracts of sale purchase, the property transactions or for those to provide personal services etc., entered into between the parties under the Contract Laws. Rather such a contract has its genesis in the social norms of the Muslim society and is structured upon the commands of Allah Almighty and the Sunnah of the Holy Prophet (P.B.U.H.). This contract is blended with the human emotions and the sentiments, such as the love, affection, likes, dislikes, tolerance, aversions, and the equation/compatibility of two personalities and the minds. Therefore the failure and the success of a marriage is dependent upon the existence or the lack of the above factors, and it shall be wrong and absolutely inapt to attribute any breach of the contract in a case, where a marriage does not work out and either party declines to submit to the other, which may ultimately result into the divorce by the husband, the termination, dissolution or denunciation of the marriage in any manner permissible under the law. Therefore, as there is no concept of any breach of marriage contract, obviously the provisions of Sections 73 & 74 of the Contract Act, 1872, or the General Laws in this behalf, shall not be attracted; with the further consequences that any expenses incurred by either party in connection with the marriage ceremonies, or the gifts exchanged by the bride and the bridegroom or given to them by the relatives of the either side, including the Salamis, cannot be recovered through the process of law. But this shall not effect the brides' right to seek the return of her dowry ( ) articles, and the bridegrooms to recover the Buri ( ) articles, a term which is well understood in our culture and the marriage rituals. Therefore, the judgment and decree of the trial Court awarding Rs. 2,00,000/- under Heads No. iv, v & vi of Para No. 8 of the plaint, cannot sustain and is hereby set aside.
Whereas in view of the above discussion, the judgment and decree of the learned trial Court is modified in the manner that the amount of Rs. 8,00,000/- on the basis of the defamation is set aside to the extent of Rs. 7,00,000/- and upheld to the tune of Rs. 1,00,000/-; this, we feel shall be adequate compensation to the respondent.
Because of the decision in the noted appeal, we are not persuaded in the other appeal filed by the respondent that any enhancement of the damages should be granted.
In the light of above, this appeal is partly allowed; the judgment and decree to the extent of Rs. 9,00,000/- is set aside but upheld to the extent of Rs. 1,00,000/- whereas the connected RFA stands dismissed.
(M. Waseem Iqbal Butt) Appeal allowed.
PLJ 2006 Lahore 1223
Present: Muhammad Muzammal Khan, J.
ABDUL MAJEED KHAN--Petitioner
versus
SENIOR MEMBER BOARD OF REVENUE, PUNJAB, LAHORE and 4 others--Respondents
W.P. No. 6845 of 2006, decided on 26.6.2006.
West Pakistan Land Revenue Rules, 1968--
----R. 17--Constitution of Pakistan, 1973, Art. 199--Appointment of lumberdar--Petitioner appointed as lumberdar by District Collector--Order reviewed and appointment was cancelled--Assailed--Vacancy was ordered to be filled after inviting fresh applications--Assailed--Validity--Petitioner was removed from service with the charge of nepotism and tampering with official record--Order of removal of the petitioner from service remained intact upto Supreme Court, wherefrom his CPLA was dismissed--Post in question was declared to be open/vacant, for fresh appointment after inviting applications from residents of the Chak and petitioner was correctly debarred from holding the office of headman of the Chak inquestion--Scan of record and impugned order revealed that controversy was correctly put to rest without committing any error of law--Even otherwise, just/lawful decision within the ambit of conferred jurisdiction cannot be substituted on the present petition, which was dismissed in limine. [Pp. 1224 & 1225] A, B & D
West Pakistan Land Revenue Rules, 1968--
----R. 17--Constitution of Pakistan, 1973, Art. 199--Appointment of a headman--Discretion of revenue authorities--Constitutional jurisdiction--Held: Appointment of a headman is exclusive discretion of revenue authorities and unless the same is exercised arbitrarily on fancifully, there is no scope for interference in Constitutional jurisdiction of High Court. [Pp. 1224 & 1225] C
1988 SCMR 447; 1989 SCMR 614; PLD 1989 SC 344 and PLD 1989 SC 373 rel.
Petitioner in person.
Date of hearing: 26.6.2006.
Order
Instant Constitutional petition challenged order dated 20.2.2006 passed by the Member Board of Revenue Punjab, Lahore, to be declared illegal, void and of no legal consequence, whereby DO(R), Pakpattan Sharif, was directed to initiate proceedings for appointment of headman (Lumberdar) of Chak No. 57/EB Arifwala, District Pakpattan Sharif.
Succinctly, relevant facts are that on death of Mehdi Khan Lumberdar of the above referred Chak, Deputy Commissioner concerned invited applications for filling the vacancy and in response thereto six candidates filed their respective applications. D.C./District Collector vide his order dated 20.2.2001 appointed the petitioner as headman on the ground that he owned 33-Kanals of agricultural land, held degree of B.Sc. Engineering, was quite physically healthy with the age of 46 years and was energetic enough to perform the duties of the office but he subsequently on 19.3.2001 reviewed his earlier order on review petition filed by one Ikram Ullah Khan.
Petitioner aggrieved of order of review, whereby first appointment was withdrawn, filed an appeal before the then Commissioner (EDO(R)) where the vacancy was ordered to be filled after inviting fresh applications. Order in appeal was maintained by the Board of Revenue and consequently instant petition.
I have heard the petitioner and have examined the record, appended herewith. Petitioner undisputedly, had been an Assistant Director in the Directorate of Industries and Mineral Development Department Punjab, Lahore, wherefrom he was removed with the charge of nepotism and tampering with official record. The order of removal of the petitioner from service remained intact up to the Honourable Supreme Court, whereform his CPLA No. 849-L/1994 was dismissed on 6.12.1995. Respondent No. 1 has remarked in the impugned order that petitioner is defaulter of Rs. 65,178/- of Agricultural Development Bank, Mianchannu and his credentials alongwith Ikram Ullah Khan and Nasrullah Khan, the opposing candidates were required to be determined in an open assembly of the village. The post in question was declared to be open/vacant, for fresh appointment after inviting applications from residents of the Chak and the writ petitioner was correctly debarred from holding the office of headman of the Chak in question.
Under law, appointment of a headman is exclusive discretion of revenue authorities and unless the same is exercised arbitrarily or fancifully, there is no scope for interference in Constitutional jurisdiction of this Court because it is not a Court of facts. While forming this view, I have to my credit judgments in the cases of Muhammad Younis vs. Member (Revenue), Board of Revenue (1988 SCMR 447), Muhammad Ramzan vs. Member (Revenue) Board of Revenue and others (1989 SCMR 614), Ghulam Ahmad vs. Member, Board of Revenue and 2 others (PLD 1989 SC 344) and Haji Ahmad Yar vs. Allah Ditta and another (PLD 1989 SC 373).
Besides the reasons noted above, scan of record and impugned order revealed that controversy was correctly put to rest without committing any error of law. Even otherwise, just/lawful decision within the ambit of conferred jurisdiction cannot be substituted on this petition, which being devoid of any merit, is dismissed in limine.
(M. Ajmal Rana) Petition dismissed.
PLJ 2006 Lahore 1225 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
Mian MUHAMMAD SHAFI and another--Petitioners
versus
ADDITIONAL DISTRICT JUDGE, MIANCHANNU DISTRICT KHANEWAL and 14 others--Respondents
W.P. No. 5945 & 5943 of 2004, heard on 6.4.2006.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 11 & 12(2)--Punjab Pre-emption Act, 1991, S. 15--Constitution of Pakistan, 1973, Art. 199--Two pre-emption suits decreed by trial Court--Assailed--Applications dismissed by trial Court but accepted by revisional Court--Assailed--Validity--An issue was framed and respondents were called upon to lead evidence to establish his plea that the suit land is urban immovable property and is located within the municipal limits--He failed to lead evidence and the trial Court closed his evidence--There being no evidence, the issue was answered against him--Finding became res-judicata between the parties to the said suits and could not have been challenged and then set aside in collateral proceedings i.e. u/S. 12(2) CPC--Additional District Judge has proceeded as if he was hearing a first appeal against original decrees, he has observed that trial Court should have fixed the suit for affirmative evidence of the plaintiff so as to ascertain that whether the suit properties are not situated within the municipal limits--Held: Impugned judgment of First Appellate Court borders on perverse--Both petitions allowed and the impugned judgment of A.D.J. declared to be without lawful authority and set aside and the judgment passed by trial Court dismissing the application restored.
[Pp. 1228 & 1230] A, C & D
1999 SCJ 178.
Civil Procedure Code, 1908 (V of 1908)--
----S. 11--Res-judicata--S. 11 completely debars the Court from trying any suit or "issue" which has been heard and finally decided by a Court in an earlier inter parties suit. [P. 1229] B
Mr. Akhtar Mehmood Khan, Advocate for Petitioners.
Mr. Ali Hussain Syed, Advocate for Respondents.
Date of hearing: 6.4.2006.
Judgment
This judgment shall decide W.P. No. 5945/2004 & W.P. No. 5943/2004, as common questions are involved and these proceed against a common judgment of a learned Additional District Judge.
(W.P. No. 5945/2004)
(W.P. No. 5943/2004)
In the matter of W.P. No. 5945/2004 the evidence of the plaintiff was recorded on 27.10.1987. The case was adjourned to 16.2.1985 for evidence of the deceased defendant, evidence was not present and the case was adjourned to 8.5.1985. On this date again the evidence was absent and one last opportunity was granted to the defendant to produce his evidence on 21.7.1985 subject to payment of Rs. 20/- as costs. The evidence was absent, the prayer for adjournment made by the learned counsel was refused and the evidence was closed. On the same day the suit was decreed.
Now in the matter of W.P. No. 5943/2004 the evidence of the plaintiff was recorded on 6.2.1985. The case was adjourned to 25.3.1985 for recording evidence of the deceased defendant. On this date the learned Presiding Officer was on leave and same was the position on 4.5.1985. On 2.6.1985 the evidence was absent and the case was adjourned on request to 10.7.1985. On this date had been approaching him to enter into a compromise. Ultimately he agreed and a compromise was arrived at in a Punchait. A sum of Rs. 2000/- in each of the cases was paid to the plaintiffs towards the litigation expenses and the defendant was assured that the suit shall be withdrawn. He was satisfied and he left for Karachi and never pursued the matter. It was specifically stated in this application that he had informed his learned counsel of the said facts. Two weeks ago, the plaintiffs made it publicly known that the suits have been decreed. The records were checked and to his utter shock and surprise he found that the suits had in fact been decreed. It was accordingly asserted that the decrees are the result of fraud and misrepresentation and without jurisdiction. The applications were contested by the private respondents, who denied any compromise/Punchait or receipt of money and asserted that upon the face of the judicial records the application is false. Both the applications were consolidated. Following issues were framed on 27.9.2001:--
whether these consolidated petitions are not maintainable in their present form? OPR
whether petitioners have no cause of action and locus standi to file these petitions? OPR
whether petitions are false, frivolous and based on malafide and respondents are entitled to special cost in case of their dismissal? OPR
whether judgments & decrees dated 21.7.1985 and 30.11.1985 have been obtained through fraud, misrepresentation and the Court lacked jurisdiction to pass these judgments & decrees? OPA
Whether judgments & decrees 21.7.1985 and 30.11.1985 are liable to be set aside under Section 12(2) C.P.C.? OPA
Relief.
Evidence of the parties was recorded. The learned trial Court dismissed the applications on 3.10.2001. The respondents filed revision petitions, these were heard together by a learned Additional District Judge, Mian Channu, who accepted the same vide his consolidated judgment dated 12.10.2004. The applications were allowed and both the judgments were set aside and the suits were dismissed. The parties are duly represented and both the learned counsel are ready with their arguments. These cases are accordingly being decided as pacca cases.
Learned counsel for the petitioner contends that in view of the position emerging on the face of the record no case of fraud, misrepresentation or lack of jurisdiction stood made out. According to him both the parties joined issues. His clients lead evidence to discharge the onus of the issues placed upon them while the respondents failed to produce any evidence in support of the plea that the suit land was urban immovable property and that it was located within the municipal limits of Mian Channu. The evidence was closed and the suits were decreed accordingly. He particularly points out that the learned counsel for the defendants had through out been putting in appearance in the suits right from their inception to the date of passing of the decrees and that it was specifically stated in the applications that the learned counsel had been informed of the alleged compromise, however not a single allegation is there against the learned counsel who had been continuously appearing in the case and there is also no denial that the counsel had not been so appearing.
Learned counsel for the respondents, on the other hand, cites the case of Mrs. Amina Bibi through General Attorney v. Nasarullah & others (2000 S.C.M.R. 296), Muhammad Qasim v. Abdul Karim & 8 others (1993 MLD 1617) & Subedar Muhammad Hussain v. Mst. Shah Begum & others (1990 M.L.D. 2100) to urge that the decree was without jurisdiction inasmuch as there was no right of pre-emption available to the plaintiffs as the suit property was urban immovable property.
I have examined the copies of the record appended with both the WPs with the assistance of the learned counsel for the parties. Now I have already referred above the entire proceedings that took place in the two suits. I have already referred to the contents of the application filed by the deceased defendant. Now a reading of the two impugned judgments would show that whereas the learned trial Court categorically held upon an examination of the original records of the two suits that the judgments & decrees have not been obtained through any fraud or misrepresentation. The learned Additional District Judge has opted to remain silent on the question of alleged fraud and misrepresentation. He has however held that since according to him the suit land is an urban immovable property within the municipal limits of Mian Channu no right of pre-emption existed and as such the decrees are without jurisdiction.
Now it is a matter of record that the plea was specifically raised by the deceased defendant in his written-statement. An issue was framed and he was called upon to lead evidence to establish his plea that the suit land is urban immovable property and is located within the municipal limits of Mian Channu. He was given sufficient opportunities on the repeated requests made by his learned counsel but he failed to lead any evidence and the learned trial Court closed his evidence. There being no evidence in support of the said plea, the issue was answered against him. To my mind the said finding became res judicata between the parties to the said suits and could not have been challenged and then set aside in collateral proceedings i.e. u/S. 12(2) C.P.C. In my humble opinion if this course is allowed to be followed then there will be no end of any proceedings. All that would be required is that a defendant would be raising plea attacking the jurisdiction of the Court by making some factual allegations, he will leave the matter unattended and thereafter file an application u/S. 12(2) C.P.C. Even if such an application is rejected even the same order can be challenged on and on under the said provision. Section 11 C.P.C. completely debars the Court from trying any suit or "issue" which has been heard and finally decided by a Court in an earlier inter parties suit. There is no manner of doubt in my mind that the issues could be finally decided by a Court of competent jurisdiction. Needless to state that the Court which decided the suit was fully competent to decide the question as to whether or not it had the jurisdiction which was dependent upon existence and the proof of the facts pleaded by the deceased defendant in his written-statement. The said judgments being relied upon by the learned counsel pertain to judgments & decrees passed exparte and are not at all attracted to the admitted facts and circumstances of the present case. In the case of Muhammad Khan v. Massan & 13 others (1999 S.C.J. 178) a Bench comprising three Hon'ble Judges of the Supreme Court of Pakistan proceeded to set aside the judgment of this Court when an exparte pre-emption decree passed after cut out date i.e. 31.7.1986 was sought to be set aside u/S. 12(2) C.P.C. The learned trial Court dismissed the application. A learned Additional District Judge allowed the revision and set aside the decree. This Court dismissed the writ petition. The civil appeal was allowed by their lordships holding that collateral proceedings u/S. 12(2) C.P.C. cannot be allowed to be resorted and bypass the period of limitation. In the present case it is a matter of record that the decree was passed in the presence of learned counsel for the defendant, no appeal was filed and as such resort to Section 12(2) C.P.C. could not have been allowed.
Now since evidence on the said question had been recorded, I deem it appropriate to refer to the same. Now I may note here that the description of the suit land given in the plaint has not at all been questioned at any stage i.e. either during the pendency of suit or in the course of proceedings u/S. 12(2) C.P.C. The suit lands in both the cases are located in Square No. 94 (Killa Nos. 21 & 25 in the matter of W.P. No. 5945/2004 and Killa Nos. 24 & 25 in the matter of W.P. 5943/2004) located in Chak No. 130/15-L Tehsil Mian Channu with reference to Jamabandi of the year 1962-63. Now it has been found as a fact by the learned trial Court that the notification declaring the limits of the municipality does not mention Square No. 94 of Chak No. 130/15-L. The learned Additional District Judge has also referred to the document Ex.A1 which is said notification but in complete ignorance of the said established fact on record that Square No. 94 is not included. He has stated that since Mian Channu was established in the year 1919 so there is no question of existence of any custom. Thereafter the learned Additional District Judge has proceeded as if he was hearing a first appeal against original decrees, he has observed that the learned trial Court should have fixed the suit for affirmative evidence of the plaintiff so as to ascertain that whether the suit properties are not situated within the municipal limits of Mian Channu. To my mind, the impugned judgment of the learned Additional District Judge borders on perverse.
Both the WPs accordingly are allowed and the impugned judgment dated 12.10.2004 passed by learned Additional District Judge, Mian Channu, is declared to be without lawful authority and is set aside. The judgment passed by the learned trial Court dismissing the application obviously stands restored. No orders as to costs.
(M. Ajmal Rana) Petitions allowed.
PLJ 2006 Lahore 1230 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
Mst. SURAYIA BEGUM and another--Petitioners
versus
SARDAR SAEED ULLAH and others--Respondents
C.R. No. 368-D of 1984, heard on 27.3.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115, O. XVII, R. 3--Predecessor-in-interest of respondents filed declaratory suit--Petitioners filed written statement--Onus of all issues was placed upon defendants/petitioners--No evidence was led--After closure of evidence suit was decreed--Appeal was also dismissed--Assailed--Validity--Sufficient opportunities were granted to the petitioners to lead evidence but they failed to avail the same--Presumption in the sub-continent being that a Muslim, unless proved to the contrary, is sunni, trial Court very correctly called upon the appellants to prove issue on merits of the case--In the absence of any evidence to rebut the said presumption, the suit was correctly dismissed by trial Court and no error of jurisdiction stands pointed out--Revision dismissed. [P. 1232] A, B & C
PLD 1963 (W.P.) Karachi 356 and 2000 SCMR 1647 ref.
Mr. M. Ghazanfar Ali Sheikh, Advocate for Petitioners.
Mr. Maqbool Elahi Malik, Ch. Munir Alam and Mr. Muhammad Arif Alvi, Advocates for Respondents.
Date of hearing: 27.3.2006.
Judgment
On 12.6.1975, Sardar Wali Muhammad, predecessor in interest of the respondents (hereinafter to be referred to as plaintiff) filed a suit against the petitioners. In the plaint it was stated that the land and the house mentioned in detail in para-1 of the plaint, was owned by Sardar Azmatullah Khan, who died on 15.8.1974 and was survived by the plaintiff as brother and the petitioners as daughters. He was a Sunni Muslim and after setting 2/3 share of the daughters residue of 1/3 has devolved upon him. It was complained that the petitioners have mutations of inheritance attested in various revenue estates showing the deceased to be "Shia" and thus excluding the plaintiff. The appellants in their written statement admitted that the property was owned by their late father as also relationship between the plaintiff and Azmatullah Khan, deceased. However, they asserted that he was a "Shia". A replication was filed. On 3.5.1978, following issues were framed:--
Whether the suit is incompetent because of not filing of appeal against the impugned mutation? OPD
Whether the plaintiff had no cause of action and locus standi to bring the suit? OPD
Whether the suit is insufficiently valued for the purpose of Court fee. If so, what is the proper valuation? OPD.
Whether Sardar Azmatullah Khan was Shia Muslim by faith? OPD
Relief.
I may note here that the issues were framed in presence of the learned counsel for the parties and till date no objection is on record as to the framing of the said issues. The case was adjourned to 23.9.1978 for evidence of the appellant. On this date, an application was filed and the case was adjourned for reply to 12.10.1978. It was noted that a compromise has not been effected and the case was adjourned to 13.2.1979. On this date it was noted that the evidence of the appellants is not present and list of witnesses has also not been filed. A written application for adjournment was filed which was opposed. The case was adjourned to 13.2.1979. It was noted that the appellants wish to file an application for filing of list of witnesses. This application was filed and allowed on 20.4.1980 and the case was adjourned to 9.9.1980 for evidence of the appellants. On this date, learned Presiding Officer was on leave. On 29.10.1980, it was reported that a compromise is being effected. Ultimately on 8.7.1981, it was reported that compromise has not been effected and the case was adjourned for recording of evidence of the appellants to 11.1.1982. On this date evidence was absent. In fact none of the appellants was present as well. Last opportunity was granted for 6.7.1982. On this date neither any witness was present nor any of the appellants was there. Request of the learned counsel for adjournment was refluxed and the evidence was closed and the suit was decreed. First appeal filed by the appellants was dismissed by learned Addl. District Judge-IV, Sahiwal on 27.2.1984.
Learned counsel for the appellants with reference to the case Abdul Shakoor vs. Abdul Rasul (PLD 1963 (W.P.) Karachi 356), argues that since there was no material on record to enable the learned trial Court to decide the case forthwith, the suit could not have been dismissed only for the default of the appellants to produce the evidence. Learned counsel for the respondents, on the other hand, rely on the case "Aziz Ullah Khan and others vs. Gul Muhammad Khan (2000 SCMR 1647), to urge that in the circumstances of the present case where burden to prove all the issues was upon the appellants their failure to lead evidence could have only resulted in dismissal of the suit.
I have gone through the trial Court records. I have also reproduced above the entire proceedings that took place in the learned trial Court. There is no manner of doubt in my mind that sufficient opportunities were granted to the appellants to lead evidence but they failed to avail the same. Now coming to the said contention of the learned counsel, the case of the deceased plaintiff was that Sardar Azmat Ullah deceased was a Sunni while the case of the petitioners was that he was Shia by faith. The presumption in the sub-continent being that a Muslim, unless proved to the contrary, is Sunni, learned trial Court very correctly called upon the appellants to prove Issue No. 4 on merits of the case. Other three issues pertain to the legal objections which were again sans any evidence. Be that as it may, learned Court of appeal has dealt with the same. However, to my mind in absence of any evidence to rebut the said presumption, the suit was correctly dismissed by the learned trial Court and no error of jurisdiction stands pointed out. C.R. is accordingly dismissed but with no orders as to costs. The records be returned back.
(M. Ajmal Rana) Revision dismissed.
PLJ 2006 Lahore 1232
Present: Muhammad Muzammal Khan, J.
ZULFIQAR--Petitioner
versus
Mst. KHANAN MAI and 3 others--Respondents
W.P. No. 3406 of 2006, decided on 13.4.2006.
(i) Guardians and Wards Act, 1890 (VIII of 1890)--
----S. 25--Constitution of Pakistan, 1973, Art. 199--Custody of minor--Welfare of minor--Spouses entered into tie of second marriage on and due to second marriage the mother was disqualified to be appointed as guardian of the minors and being father could claim custody of minors but due to his second marriage, welfare of the minor was to be looked into. [P. 1234] A
(ii) Guardian and Wards Act, 1890 (VIII of 1890)--
----S. 25--Constitution of Pakistan, 1973, Art. 199--Custody of minor--Deep attachment with grand-mother--Minor could not be given to petitioner to face step-mother at the cost of their future--Minors were being given schooling and worldly education by maternal grand-mother with whom deep attachment--Petition dismissed. [P. 1234] C
(iii) Muhammadan Law--
----Right of custody of maternal gran-dmother--Priority in case of spouses second marriage--Maternal grand-mother under Mohammadan Law is marked with first priority of custody of female minor. [P. 1234] B
Syed Zulfiqar Ali Bokhari, Advocate for Petitioner.
Date of hearing : 13.4.2006.
Order
Instant Constitutional petition challenged the judgments/orders dated 25.5.2005 and 24.10.2005 passed by the learned Guardian Judge and the learned Additional District Judge, Jhang, respectively.
Succinctly, relevant facts are that Respondent No. 1 filed an application under Section 25 of the Guardian and Wards Act, 1890 to retain custody of the two minors namely Nazia Bibi and Muhammad Shaban, ages of 13 years and 8 years, respectively being their maternal grand-mother. It was pleaded that the petitioner entered into a tie of marriage with Mst. Sakina Bibi daughter of Respondent No. 1, according to Muslims rites through a registered Nikha Nama. This marriage gave birth to above noted two minor children but relations between the spouses did not remain cordial and ultimately resulted in separation. Spouses divulged themselves into multiple litigations and suits of Mst. Sakina Bibi for dissolution of her marriage; maintenance allowance for herself and the minors were ultimately decreed on 2.3.2002. The petitioner remained unsuccessful in his suit for restitution of conjugal rights. The minors were in custody of Respondent No. 1 and were studying in Government Primary School Piplanwala, Mauza Kulloowala, where their maternal grand-mother resided, as both the spouses had entered into their respective second marriages. Respondent No. 1 pleaded in her application that the minors if given to the petitioner would face ill treatment of their step-mother, thus it was in the welfare of the minors to allow their custody to remain with her.
The petitioner being respondent in the application filed by Respondent No. 1 contested the same by filing his written reply wherein he relied on an agreement dated 25.3.2000 allegedly reached between Mst. Sakina Bibi to forego her right of custody of the minors in case of her re-marriage. The petitioner asserted his right of custody being father of the minors in their welfare. Controversial stance of the parties necessitated framing of issues and recording of evidence. The learned Guardian Judge after doing the needful accepted the application Respondent No. 1 vide his judgment/order dated 25.5.2005.
Petitioner aggrieved of the decision of the learned Guardian Judge, filed an appeal before the learned Additional District Judge, but remained unsuccessful as the same was dismissed on 24.10.2005. The petitioner now filed instant Constitutional petition with the relief noted above.
I have heard the learned counsel for the petitioner and have examined the record, appended herewith. Besides the reasons, which concurrently weighed with Respondents Nos. 3 and 4 in appointing Respondent No. 1 as guardian of the minors, undisputedly both the spouses have solemnized their respective second marriages. Under law on account of second marriage of mother she was disqualified to be appointed as a guardian of the minors and in her absence, petitioner being father could claim their custody but due to his second marriage, welfare of the minors was to be looked into. The minors are living with their maternal grand-mother since long and she under Mohammadan Law, is marked with first priority of custody of female minor. The learned Guardian Judge has also considered the intelligent selection of the minors, which was expressed in favour of Respondent No. 1. Mst. Nazia Bibi is reaching the age of majority as she is at the present of 13 years age and needs motherly teachings in order to enter in her practical life and for this purpose Respondent No. 1 can best provide the teachings, in this behalf. The minors could not be given to the petitioner to face their step-mother, at the cost of their future. The minors are being given schooling and worldly education by the maternal grand-mother with whom they have deep attachment. Record revealed that a decree for maintenance allowance of the minors has already been passed by the concerned Court and the petitioner is exerting to avoid the same under the garb of litigation in hand. Evidence on the file which has already been correctly appraised by Respondents Nos. 3 and 4 and their concurrent judgments, revealed that lis was correctly concluded, without committing and illegality amenable to Constitutional jurisdiction of this Court.
For the reasons noted above, petitioner was rightly refused custody of the minors by appointing Respondent No. 1 as their guardian and no case for interference by this Court was made out. Even otherwise, lawful decision within the ambit of conferred jurisdiction, cannot be substituted on this petition which being devoid of any merit, is dismissed in limine.
(Waseem Iqbal Butt) Petition dismissed.
PLJ 2006 Lahore 1235
Present: Fazal-e-Miran Chauhan, J.
FAZIL KHAN--Petitioner
versus
ADDITIONAL SESSIONS JUDGE, SIALKOT and 2 others--Respondents
W.P. No. 7948 of 2006, decided on 20.7.2006.
(i) Illegal dispossession Act, 2005 (XI of 2005)--
----S. 3--Constitution of Pakistan, 1973, Art. 199--Object and purpose--Protection from illegal or forcible dispossession--Determine--Illegal Dispossession Act, 2005 was enacted to curb the act of the property grabbers and to protect the lawful owner and occupiers of immovable properties from their illegal or forcible dispossession. [P. 1236] A
(ii) Illegal dispossession Act, 2005 (XI of 2005)--
----S. 2(d)--Meaning of--Obstructed right of access--Shamlat/Deh property--Whether the right of way over land is immovable property--Held: When obstructed in his right of access to his property or in the enjoyment of light and air or of other amenity connected with that property, it would be an abuse language to say that he was dispossessed of immovable property. [P. 1237] B
1899 Bombay Law Reporter 167, ref.
Ch. Muhammad Ikram-ul-Haq, Advocate for Petitioner.
Date of hearing : 20.7.2006.
Order
By filing the instant writ petition, the petitioner has called in question order dated 6.5.2006, passed by the learned Additional Sessions Judge, Sialkot (Respondent No. 1), dismissing the complaint of the petitioner under Illegal Dispossession Act, 2005.
Briefly, the facts of the case giving rise to the instant writ petition are that; the petitioner filed a complaint under Section 3 of the Illegal Dispossession Act, 2005 that Respondents Nos. 2 and 3 illegally occupied a part of Chappar Deh measuring 10/11 marlas and thoroughfare before the learned Sessions Judge, Sialkot on 8.4.2006, which was entrusted to the learned Additional Sessions Judge, Sialkot (Respondent No. 1), who instead of examining the complaint and requiring him to produce evidence, directed the S.H.O. concerned to make preliminary investigation and SDPO, Sialkot was also directed to verify the report of the S.H.O. The report was submitted on the basis of which the learned Additional Sessions Judge dismissed the complaint of the petitioner, being not maintainable. Being aggrieved, the petitioner has filed this writ petition.
It is contended by learned counsel for the petitioner that; in accordance with provisions of Section 4 of the Act, the learned Additional Sessions Judge was to take cognizance of the complaint and it was triable by him as a complaint. Neither the learned Additional Sessions Judge examined the complainant/petitioner nor given time to produce his evidence to substantiate the allegations made in the complaint. The material collected by the S.H.O/SDPO clearly proves that discrepant and contradictory evidence has been collected, which necessary required the learned trial Court to resolve the factual controversy between the parties. Further contends that the learned trial Court has not afforded any opportunity of cross-examining the inquiry Officer nor any witness, who made statements in favour of the respondents.
I have heard learned counsel for the parties and perused the record. On 8.4.2006, a complaint was filed by the petitioner alleging therein that Respondents Nos. 2 and 3 had illegally encroached upon the Kacha path, which leads to a Chah ( ), being used by him since 1947. The learned Additional Sessions Judge/Respondent No, 1, taking cognizance of the complainant, directed the S.H.O. to investigate the matter and submit a report, who submitted his report on 15.4.2006; both the parties claimed their right upon the land. Respondent No.1/Additional Sessions Judge by disagreeing the report of A.S.I, directed the S.H.O. to re-investigate the matter and submitted his report. A.S.I., after recording statements of the resident of the Abadi Deh and from the statements of inhabitants, it reveals that the land, being used as Kacha passage by the petitioner with a Shamlat Deh. Presently, it was converted into a Chappar ( ).
In this view of the matter, it is to be seen whether any complaint under Illegal Dispossession Act, 2005 is maintainable. This Act was enacted to curb the act of the property grabbers and to protect the lawful owner and occupiers of immovable properties from their illegal or forcible dispossession.
"Owner" as per sub-section (d) of Section 2 of the Act means "the person actually owns the property at the time of dispossession, otherwise than through a process of law". "Occupier" means the person, who is in lawful possession of a property.
The owner, as defined in Clause (d) of Section 2 of this Act, means a person actually owning the property at the time of dispossession. From the report of A.S.I, Naib Tehsildar and the statements of the residents of the village, it appears that the petitioner was not in occupation of the land/path, as its owner. At one time, it was used a path by the petitioner to reach his Chah; presently, it was converted into a Chappar. In the revenue record, it is recorded as Shamlat Deh and was in possession of any body. There is no evidence on record showing that the petitioner is in lawful possession of the land/path and was dispossessed. There are contradictory statements about the time, since it was used as path and when it was occupied or encroached upon by Respondents Nos. 2 and 3.
This fact can only be determined by a Court of competent jurisdiction and not in the summary proceedings of Illegal Dispossession Act, 2005. The property, as defined in Clause (d) of Section 2 of the Act means, immovable property. Whether the right of way over land is immovable property, as defined in the Act. Right of way is not "immovable property". Reliance is placed on Mangaldas Shankarlal v. Jewanram Mayashanakar and others (1899 Bombay Law Reporters 167] wherein it has been held that:--
"A right which cannot be transferred apart from the dominant heritage does not appear to come within the term "property" as used in Section 9 of the Specific Relief Act. Right of way is an interest of land, but it is an interest entirely dependant on the possession of the property to which it appertains, and cannot be possessed apart from it. It is a right appurtenant to property but taken by itself does not come within the term property which, under the section, must be property capable of separate enjoyment as an independent rights.
It seems to me that when a person is obstructed in his right of access to his property or in the enjoyment of light and air or of other amenity connected with that property, it would be an abuse of language to say that he was dispossessed of immovable property.
The petitioner is claiming a right of way on Shamlat Deh. The petitioner was not owner of the land (property), in question, nor in occupation of the same at the time, when it was occupied by Respondents Nos. 2 and 3.
In this view of the matter, no case under Illegal Dispossession Act is made out, calling for interference by this Court in writ jurisdiction; this writ petition is dismissed in limine.
(Waseem Iqbal Butt) Petition dismissed.
PLJ 2006 Lahore 1237
Present: Umar Ata Bandial, J.
MAHMOOD ALAM and another--Petitioners
versus
MIAN FAROOQ AHMAD, ADVOCATE, FAISALABAD and 5 others--Respondents
W.P. No. 5759 of 2006, decided on 6.7.2006.
Constitution of Pakistan, 1973--
----Art. 199--Election petition for recounting of votes--Controversy of election--Total votes cast for the other seats at the common polling stations is different from the total votes cast in the election for the seat of Nazim/Naib Nazim of the union council order challenged in writ petition--High Court set aside the order while directing the tribunal to record evidence--Held: Indeed the controversy about an election need not to be dragged unnecessarily in Court but at the same time when such a controversy is raised, it should be decided on evidence in accordance with law. [Pp. 1238 & 1239] A
PLD 1986 SC 483, ref.
Ch. Azeem Sarwar, Advocate for Petitioners.
Mr. Khalid Pervaiz Warriach, Advocate for Respondent No. 1.
Date of hearing : 6.7.2006.
Order
The premise upon which the impugned order by the learned Election Tribunal proceeds is that total votes cast for the other seats at the common polling stations is different from the total votes cast in the election for the seat of Nazim/Naib Nazim of the Union Council. The consideration is that variation in the total of votes reflects a material irregularity which the learned Tribunal ought to examine through a recount of votes cast.
Learned counsel for the petitioner/incumbent submits that the learned Election Tribunal has no grounds for concluding that in the case of Nazim's election the total is wrong but in the case of the election held for other seats in the same polling stations it is correct. The impugned order can be given effect only if entire election for the other seats as well as for the Nazim's seats is revisited. But neither the tenor of the impugned order nor purport the election petition suggests that result. He submits that no material facts to sustain relief of recount have been laid before the learned Tribunal in accordance with rule laid down in the case of Kanwar Ijaz Ali v. Irshad Ali and 2 others (PLD 1986 SC 483) and therefore, the impugned order is illegal. The matter in question should therefore go to trial upon the issues already framed by the learned Election Tribunal.
Learned counsel for the respondent has relied upon the judgment of Honourable Supreme Court in Muhammad Naeem Kasi and another v. Abdul Latif and 7 others (2005 SCMR 1699) and analogous case law referred in the learned Tribunal's order. He further submits that impugned order is interim in nature and cannot be assailed in writ jurisdiction.
The precedent of the Honourable Supreme Court does not exonerate an election petitioner from setting out the material facts in his election petition for seeking recount of votes. In the present case, the election petition does not make any such disclosure or prayer. The allegations made therein are sweeping in nature without specific mention of any illegal acts that may invite an order of recount. Indeed the controversy about an election need not to be dragged unnecessarily in Court but at the same time when such a controversy is raised, it should be decided on evidence in accordance with law, unless a case is made out for recount of votes. In the present case, the allegations are vague and sweeping and fall foul of the rule laid down in Kanwar Ijaz's case. The short cut approach adopted by the learned Tribunal fails to record the factual justification for the relief given which is capable of having a terminal effect and is therefore not an interim order as contended.
Resultantly, in the absence of respondent placing material before the learned Tribunal to justify recount of votes the impugned order dated 22.5.2006 is declared to be illegal and void. Consequently, the election petition shall be decided on remits in accordance with law after recording evidence of the parties. Petition allowed.
(Waseem Iqbal Butt) Petition allowed.
PLJ 2006 Lahore 1239
Present: Syed Shabbar Raza Rizvi, J.
NASEEM BEGUM and another--Petitioners
versus
STATION HOUSE OFFICER POLICE STATION, SADDAR GUJRAT and 3 others--Respondents
W.P. No. 19362 of 2005, decided on 20.4.2006.
(i) Administrative of Law--
----Where the law requires a thing to be done in a particular manner then that thing must be done in that manner alone or not at all. [P. 1240] A
(ii) Police Order, 2002--
----S. 18(b)--Process of verification--Whether verifying officer can investigate the matter during verification process--Held: Verifying officer could not have investigated the case himself during process of verification and passed direction to local police to submit challan. [P. 1241] B
PLD 2005 Lah. 470, ref.
Petitioner in person.
Mr. Safdar Tarar, Advocate for Respondents.
Date of hearing : 20.4.2006.
Order
This writ petition was filed for quashment of FIR No. 267/05 dated 5.6.2005 registered at Police Station Saddar, Gujrat.
According to the learned counsel for the petitioner, cancellation report was prepared on 29.6.2005 but the same could not be processed on interference of Respondent No. 4. The Respondent No. 4 was directed to submit reply. A reply was submitted by Respondent No. 4. In Para No. 5, he submitted that on 25.10.2005 complainant of the case submitted an application to S.P. Investigation District Gujrat for "checking" of investigation, whereupon, the answering Respondent No. 4 took up the investigation of the case. During investigation both the parties were summoned and the record of Union Council No. 25 was checked. The Nikah Nama submitted by the petitioners was found fake, whereupon respondent No. 4 directed local police to prepare challan in the case and effect arrest of the accused persons.
The S.P. Investigation and Respondent No. 4 are present in the Court. The Respondent No. 4 submits that expression "checking" was inadvertently typed, he actually verified the investigation on direction of S.P. Investigation.
The expression "verification" and scope of verification has already been demarcated by Hon'ble Full Bench of this Court in a judgment reported as Khizar Hayat vs. I.G. Punjab (P.L.D. 2005 Lahore 470) which for convenience is reproduced:--
"It has come to our notice in some other cases that police officers other than those mentioned in Article 18(6) of the Police Order, 2002 have been changing investigation of criminal cases in the name of verification' of investigation. It may be clarified by us that the law is quite settled on the point that where the law requires a thing to be done in a particular manner then that thing must be done in that manner alone or not at all. In any case if an investigation by an investigating officer is to be verified by some other officer then such verification must be confined to verification of the record of investigation and such an exercise cannot be allowed to be conducted in a manner giving it a colour of fresh investigation with fresh conclusions. The verifying officer has to confine himself to the record of investigation already conducted and cannot substitute his own conclusions for those of the investigation officer and if he finds any serious fault with the investigation already conducted then the verifying officer can bring such fault to the notice of the Superintendent of Police (Investigation) of the concerned District who can then initiate the process contemplated by the provisions of Article 18 (6) of the Police Order, 2002 for change of investigation. It has also come to our notice in some other cases that an impression is being entertained among some senior police officers that the provisions of Article 18(6) of the Police Order, 2002 pertain tovertical' change of investigation and not to `horizontal' transfer of authorities outside and above the relevant District and the latter denoting transfer of investigation by officers performing duties with the relevant District. We have found such a distinction not only to be innovative but totally artificial and self-created and a distinction motivated to defeat the very purposes of Article 18(6) of the Police Order, 2002 so as to perpetuate the maladies for the removal of which the said Article had been introduced. We, therefore, categorically reject all notions regarding such a distinction."
The above report clearly indicates that Respondent No. 4 could only identify the defect in investigation as he claims that according to record of Union Council Nikah Nama was found fake whereupon S.P. Investigation could have activated process given under Article 18(6) of Police Order, 2002 for first change of investigation.
Respondent No. 4 being a verifying officer could not have investigated the case himself during process of verification and pass direction to the local police to submit challan against the petitioner etc.
In view of the above, investigation conducted by Respondent o. 4 is declared volative of law and set aside. This writ petition is disposed of in the above terms.
(Waseem Iqbal Butt) Petition disposed of.
PLJ 2006 Lahore 1241
Present: Muhammad Muzammal Khan, J.
IMAM ALI SHAH and 3 others--Petitioners
versus
Mst. KUBRA BIBI (deceased)--RespondentC.R. No. 540 of 1997, heard on 7.4.2006.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 64--Civil Procedure Code (V of 1908), S. 115--Specific Relief Act, (I of 1877), S. 42--Suit for declaration was decreed--Assailed--Evidentiary value of statement of closed relations and its relevancy--Statements of the witnesses as to relationship of one person to another being member of the family or otherwise having special means of knowledge are relevant--Held: Value as compared to the persons who are not related to them and simply knew them, without disclosing of their source of knowledge. [P. 1243 & 1244] A
Mr. Karamat Ali Butt, Advocate for Petitioners.
Respondents for Ex parte.
Date of hearing : 7.4.2006.
Judgment
Instant civil revision assailed appellate judgment/decree dated 12.3.1997, whereby appeal filed by Mst. Kubra Bibi deceased was accepted and by reversing judgment of the trial Court her suit for declaration was decreed.
Succinctly, relevant facts are that Mst. Kubra Bibi deceased filed a suit for declaration to the effect that she was real daughter of Syed Kamarat Ali son of Syed Hussain Shah and thus was entitled to inherit the estate left by him. She challenged Mutation No. 133 sanctioned on 17.5.1984 pleading that her father Syed Karamat Ali was governed by Shia law of inheritance, where-under she was entitled to 7/32 share, measuring 7 kanals 5 marlas. According to her, petitioners in order to deprive her of hereditary rights, got mutation of inheritance of her father, sanctioned stealthily, thus the same may be declared as void, collusive and ineffective qua her proprietary rights.
Petitioners being defendants in the suit, contested the same by filing their written statement and besides refuting averments in the plaint, denied that Mst. Kubra Bibi was real daughter of Syed Karamat Ali. They also averred that the deceased plaintiff/respondent was not from the womb of Fatima Bibi daughter of Imam Ali Shah, hence she had no cause of action to file the suit. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge, seized of the matter, after doing the needful, out of his appraisal of evidence, dismissed the suit vide his judgment/decree dated 26.4.1992.
Mst. Kubra Bibi feeling herself aggrieved of judgment/decree of the trial Court, filed an appeal before the learned Additional District Judge, where she succeeded as the same was accepted and her suit was decreed, as prayed vide judgment/decree dated 12.3.1997. Petitioners thereafter, filed instant revision petition, which was admitted to regular hearing and after completion of record has how been placed for final determination. Respondents were represented through Mr. Muhammad Sharif Khokhar, Advocate, who lastly appeared in this case on 24.3.2005 and thereafter opted to remain absent inspite of the fact that his name appeared in daily cause list of this Court. Case was repeatedly called but no body appeared on behalf of the respondent, hence they were proceeded against ex-parte.
I have heard the learned counsel for the petitioner and have examined the record, appended herewith. The most crucial point for determination was reflected in Issue No. 1 framed by the trial Court, which was to the effect that Mst. Kubra Bibi was daughter of Syed Karamat Ali and Mst. Fatima Bibi and thus was entitled to inherit the property left by Syed Karamat Ali. Onus of proof of Issue No. 1 was placed on the shoulders of Mst. Kubra Bibi, who in order to discharge the same examined four witnesses including her own statement as PW.4. She categorically deposed that her father was Syed Karamat Ali and name of her mother was Mst. Fatima Bibi, whereas name of her maternal grandfather was Muhammad Hussain Shah. She detailed in her statement her entire relationship and traced life of her father during which he entered into two ties of marriage. She assertively deposed that her father was a follower of Shia sect and maternal grandfather, as well as, paternal grandfather were also the followers of the same sect. According to her deposition her father Syed Karamat Ali died 6/7 years ago. She was subjected to extensive/lengthy cross-examination by the petitioners but veracity of her statement could not be shattered. Learned counsel for the petitioners attempted to pick minor discrepancies to contend that statement of Mst. Kubra Bibi was not of worth reliance and did not furnish a solid basis for grant of decree prayed. Mst. Kubra Bibi deceased was not much educated and was undeniably a house-hold lady who made statement out of her memory after lapse of a longtime, thus the discrepancies/contradictions attempted to be picked were of no value as those were not enough to deprive her from inheritance, if otherwise proved.
Mst. Kubra Bibi deceased besides her own statement examined Qalb-e-Hussain Shah PW. 2, who was related to both the parties. He deposed that Syed Karamat Ali Shah solemnized two marriages and his first wife was Mst. Fatima Bibi, who was his real sister. According to this witness, Mst. Fatima Bibi wife of Syed Karamat Ali was daughter of Muhammad Hussain Shah and was real mother of the respondent. This witness was also cross-examined at length by the petitioners but nothing material could be extracted from him. Another witnesses Syed Tasadduq Hussain Shah was produced as PW. 3, who was also related to the parties. This witness deposed that Syed Karamat Ali deceased was his paternal uncle. According to this witness Mst. Fatima Bibi daughter of Muhammad Hussain Shah was married to Syed Karamat Ali Shah son of Hussain Shah and was mother of the respondent. This witness also traced pedigree of the parties and inspite of remaining under cross-examination for quite some time did not leave the stance taken in his examination-in-chief. Petitioners attempted to displace proof brought on the file by the deceased Mst. Kubra Bibi, which revealed their admissions to the effect that Syed Karamat Ali had two wives out of whom one was Mst. Fatima Bibi and as per their case, she was daughter of Imam Shah and not that of Muhammad Hussain Shah as claimed by the respondent. All the DWs though had deposed that they knew Syed Karamat Ali deceased father of Mst. Kubra Bibi, but none of them was so closely related to the parties, as the witnesses produced by the respondent. Under Article 64 of the Qanun-e-Shahadat Order, 1984 statements of the witnesses as to relationship of one person to another, being member of the family or otherwise, having special means of knowledge, are relevant. Analysis of this provision of law shows that statements of persons closely related to the persons whose relationship is to be decided, are of much more value as compared to the persons, who are not related to them and simply knew them, without disclosing their source of knowledge. Scan of evidence, revealed that witnesses produced by the respondent were of much more value having relationship with the parties and special means of knowledge, being members of the family and deserved much more credence over the witnesses produced by the petitioners. Appellate Court in correct appraisal of evidence according to the law applicable, rightly concluded the lis, without committing any illegality/irregularity amenable to revisional jurisdiction of this Court, except he granted the respondent decree as prayed for without looking into prayer in the plaint, whereby share in the estate of deceased Syed Karamat Ali to the extent of 7/32 share was claimed by Mst. Kubra Bibi deceased, but according to Shia Law of Inheritance, which is similar to that of Hanfi Law, when the propositus is succeeded by widow, sons and a daughter. Syed Karamat Ali was succeeded by a widow, who was entitled to 1/8 share and three sons, who were to get 3/4 share and the residue equivalent to 1/8 share was to be inherited by the deceased Mst. Kubra Bibi instead of 7/32, hence except this modification appellate judgment admits no other exception.
For the reasons noted above, appellate judgment/decree is maintained with the modification that Mst. Kubra Bibi deceased was entitled to 1/8 share out of estate of her father Syed Karamat Ali. Petitioners could not make out commission of any illegality/irregularity in terms of Section 115 CPC, hence this petition being devoid of any merit, is dismissed, with no order as to costs.
(Waseem Iqbal Butt) Petition dismissed.
PLJ 2006 Lahore 1244
Present: Muhammad Sair Ali, J.
Mian MUHAMMAD SAEED--Petitioner
versus
Mian ABDUL GHAFOOR and others--Respondents
C.R. No. 2281 of 2002, heard on 12.4.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 17, Ss. 115 & 42--Jurisdiction properly for amendment in plaint--Amendment allowed--Elements--Held: "When in a partition suit paramount title is set up it is desirable to require the plaintiff to amend the plaint so as to challenge the existence, validity or legality of the alienation on the basis of which exclusive title is pleaded and converted the suit into a suit for declaration or cancellation of the alienation and for partition--Revision dismissed. [P. 1247] A
1993 CLC 31, ref.
Mr. Muhammad Ahmed Qayyum, Advocate for Petitioner.
Ch. Shaukat Ali Saqib, Advocate for Respondents Nos. 1 to 5.
Syed Ikhtisar Ahmad, Advocate for Respondents Nos. 6 to 9 and 11.
Mr. Muhammad Ashraf, Advocate for Respondent No. 10.
Date of hearing : 12.4.2006.
Judgment
Through the present civil revision, the petitioner Mian Muhammad Saeed (a co-defendant in suit for declaration has called in question order dated 20.5.2002 of the learned Civil Judge Lahore allowing application of Respondents Nos. 1 to 5 (the plaintiffs) under Rule 17 of Order VI CPC to permit the relief of separate possession in partition in the prayer of the plaint.
Contrarily the learned counsel for the contending Respondents Nos. 1 to 5 (the plaintiffs) supported the impugned order and stated that on the basis of the impugned order for amendment, the plaint was amended and the parties had already concluded their evidence since long. Further that the suit property was in possession of the petitioner alongwith a few others where for it was in the interest of the petitioner to delay the conclusion of the suit. And that the amendment allowed by the learned trial Judge was in accordance with the principles of law.
Syed Ikhtisar Ahmad and Ch. Muhammad Ashraf, Advocates for the conceding respondents being co-defendants in the suit, supported the case of the petitioner as raised in the present civil revision.
Heard.
The learned counsel for the parties jointly stated that the present civil revision continued to be at pre-admission stage since its first date of hearing on 18.10.2002. And that it was on this notice that the respondents had appeared through their learned counsel. The order sheet also shows that on 18.10.2002, pre-admission notice was directed to be issued to the respondents and on 2.7.2003, proceedings before the learned trial Court were stayed through an interim order. As all the parties have been heard through their learned counsel, therefore, this case is being decided as an admitted/`Pacca' case.
The short question involved in the present civil revision is as to whether the amendment to add prayer for separate possession in partition was property allowed by the learned trial Judge through the impugned order dated 20.5.2002 or not.
Respondents Nos. 1 to 5 filed a suit for declaration to challenge to purported "deed of surrender of shares" allegedly registered as Document No. 13323, Bahi No. 1, Volume No. 197 on 30.11.1996 and "rectification deed" also registered on 13.12.1987. Respondents Nos. 1 to 5 (the plaintiffs) also sought declaration that they continued to be the joint owners/share holders in possession alongwith the defendants of the properties left by their deceased predecessors-in-interest namely Lal Din and Mst. Hussain Bibi (father and mother and grand-father and grand-mother of the litigating parties). Perpetual injunction against the alienation of the suit properties was also sought in this suit.
On contesting written statement, issues were framed and the case was ordered to be fixed for evidence. In the meanwhile numerous amendments were prayed for and allowed by the learned trial Court. However, Respondents Nos. 1 to 5/the plaintiffs sought another amendment in the plaint to incorporate the relief of separate possession on the basis of their 1/13th share in the state of the deceased. This relief was essentially a prayer for the partition of the jointly owned assets. Contesting reply was filed by the defendants.
The amendment was allowed by the learned trial Judge through the impugned order dated 20.5.2002 for the reasons that the proposed amendment would neither change the nature nor the complexion of the suit nor would it set up a new case or the new facts in the plaint.
The main contention of the learned counsel for the petitioner is that amendment was wrongly allowed because a cause of action for a partition suit is distinct from the cause of action for a title suit and the suit for partition has to be based upon unity of title and possession. Furthermore the learned counsel for the conceding respondents stated that neither any issue was framed in the present case on the partition nor was the evidence allowed by the Court.
I am of the considered opinion that there is no merit in the submissions of the learned counsel for the petitioner or that of the learned counsel for the conceding respondents. The undisputed facts are that the suit property was originally owned by deceased Lal Din and Mst. Hussain Bibi. On their death the property devolved under the Muhammadan Law upon the plaintiffs and the defendants; parties to this civil revision to their respective predecessors-in-interest. As such, the rights to the inheritance of the estate and the shared ownership of the assets descended upon the parties because of the paramount title of their deceased propositius. Death extinguished the title of the deceased in their assets and simultaneously created the title of the parties therein. The flow of rights was from the same source though it streamed into multiple units on devolution as per the legal shares. Unity of title and possession in such a case therefore cannot be questioned.
Upon devolution of the property through inheritance on the parties, the petitioner and his co-defendants claimed that through the surrender deed and the rectification deed, their real sister (the predecessor-in-interest of the respondent plaintiffs) surrendered her inherited share to them. Denying these deeds, the plaintiffs i.e. Respondents Nos. 1 to 5 filed their suit to:
(i) establish their title;
(ii) avoid the obstructive deeds; and
(iii) for declaration of their co-ownership and co-possession.
They also sought consequential reliefs. All these reliefs arose from one cause of action. Such cause emanated the amended prayer for the separate possession as well.
This Court thus finds that the learned trial Judge exercised his jurisdiction properly to permit amendment in the plaint to incorporate the claim of the plaintiffs to separate possession to the extent of their 1/13th share in the suit property. The amendment so allowed neither changed the nature of the suit nor the complexion of the litigation between the parties. It essentially arose from the same unity of the title and the actionable cause.
The principles settled in the case of "Syed Mohsin Raza Bukhari and 4 others vs. Syed Azra Zenab Bukhari" (1993 CLC 31) were neither departed from nor disregarded by the learned trial Judge. The amendment as allowed was in consonance with the rules recorded in the concluding para of this judgment. It was held that "when in a partition suit paramount title is set up it is desirable to require the plaintiff to amend the plaint so as to challenge the existence, validity or legality of the alienation on the basis of which exclusive title is pleaded and to convert the suit into a suit for declaration of the title or cancellation of the alienation and for partition."
In the present case, the plaint in the suit for declaration and perpetual injunction was allowed to be amended to incorporate the relief of separate possession as well. It thus became the suit for declaration, perpetual injunction and partition as approved in the precedent judgment. This Court therefore does not find any infirmity in the impugned order. This civil revision is dismissed with the costs.
(Waseem Iqbal Butt) Revision dismissed.
PLJ 2006 Lahore 1248
Present: Jawwad S. Khawaja, J.
AHMAD KHAN--Petitioner
versus
NADIR--Respondent
C.R. No. 2209 of 2005, heard on 9.6.2006.
(i) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 28--Civil Procedure Code (V of 1908), S. 115--Constitution of Pakistan, 1973, Art. 199--Determination of market price--For the purpose of determining the market value of a property, Court can consider matter of evidence of value--Price or value actually received or to be received by the vendor from the vendee--Estimated amount of the average annual net profits of the property--Value of similar property in the neighbourhood and value of similar property as shown by previous sales made in the near past. [P. 1251] A
(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 28--Market value of property--Question of price of the suit land--Validity--Respondent did not produce evidence which legitimately could have been considered by Courts below for determining the market value of the property in-question--Respondent failed to produce any evidence that amount of consideration actually received by vendor from vendee and respondent did not produce estiamte of average annual net profits of property--No evidence of value of property in neighbourhood was brought on record--Held: No doubt that respondent had failed to prove the market value of land in-question. [P. 1251] B & C
Mr. Ata-ul-Mohsin Lak, Advocate for Petitioner.
Mr. Muhammad Arif Gondal, Advocate for Respondent.
Date of hearing : 9.6.2006.
Judgment
The respondent-plaintiff filed a suit against the petitioner-defendant seeking possession of the suit property through pre-emption. The suit has been concurrently decreed by the learned trial Court vide judgment and decree dated 25.3.2004 and by the learned appellate Court vide decree dated 15.6.2005.
"2. Whether the suit land was sold for Rs. 7000/-? OPP
Whether the ostensible sale price of Rs. 20000/- was fixed in good faith or actually paid? OPD
If Issues Nos. 2 and 3 are not proved, what was the market value of the suit land at the time of sale? OPD"
I have gone through the record and the impugned judgments with the assistance of learned counsel for both sides. The petitioner as DW-1 and Bashir Ahmad DW-2 have categorically deposed that a sum of Rs. 20,000/- was paid as consideration for the sale. This testimony has not been rebutted through any admissible evidence. It is true that the respondent-plaintiff and his witnesses have deposed that the amount paid by the petitioner to the vendor, was Rs. 7000/- and not Rs. 20,000/-. This testimony, however, is merely conjectural. No basis has been given by the respondent and his witnesses for the statement made by them relating to price. The PWs were neither present at the time of mutation nor when the bargain was struck between the petitioner and the vendor. It is, therefore, clear that they were not in a position to give evidence of the amount of consideration actually paid by the petitioner.
The respondent-plaintiff also produced two mutations which are Exh. P-5 and Exh. P-6 on the record, with the object of proving the market value of the land. Exh. P-5 is wholly irrelevant because it reflects a mortgage and not a sale. Exh. P-6 relates to sale of 7 kanals 3 marlas for a sum of Rs. 100,000/-. Based on this document, the market value of the suit land, which measures 13 marlas, has been determined as Rs. 7000/-. Both Courts below have relied on the aforesaid mutation (Exh. P-6) for holding that the sale price was Rs. 7000/-. It has also been held that the petitioner-defendant had failed to prove that he paid Rs. 20,000/- as sale consideration.
Learned counsel for the petitioner, firstly, argued that in the light of the testimony of the petitioner and Bashir Ahmad (DW-2) and in view of the mutation of sale, the payment of 20,000/- stood proved. On the other hand, there was no direct evidence produced by the respondent-plaintiff to show that a lesser amount was paid by the petitioner. This contention has merit because the fact in issue set out in Issue No. 3, was whether the sum of Rs. 20,000/- had actually been paid. The evidence discussed above shows that payment of this amount was proved.
I now take up for discussion the reasoning of the learned Courts below. Issues Nos. 2, 3 and 4, reproduced above, were taken up together by the learned Courts below. The onus to prove payment of actual consideration, as set out in Issues Nos. 2 and 3, was on the petitioner-defendant. In my opinion, this onus stood discharged through the testimony of the petitioner as DW-1 and Bashir Ahmad as DW-2. Both of them stated that the suit land was purchased for a sum of Rs. 20,000/-. The learned Courts below have disregarded the testimony of the DWs, firstly, for the reason that Bashir Ahmad (DW-2) had not stated that the sale consideration was paid in his presence. This constitutes a misreading of evidence inasmuch as the said witness had testified that the petitioner had acquired the suit property for Rs. 20,000/-. During cross-examination not a single suggestion was put to him that he was not a witness to the payment or the sale transaction. The thrust of the cross-examination was premised on the suggestion that the consideration paid was Rs. 7000/-. This was denied by DW-2. Bashir Ahmad is not related to the petitioner and his testimony as to the amount paid by way of consideration, has not been impeached in cross-examination. In view of this testimony and in the absence or any evidence to the contrary, the language used by DW-2 could not have been construed as lacking probative value in respect of Issue No. 3.
In the above circumstances, issue No. 4, in its terms, became inconsequential. The learned Courts below, however, appear to have confused the actual payment proved through testimony discussed above, with the market value and have, therefore, proceeded to determine the market value of the suit property. It has been held that the petitioner's failure to produce the average sale price (aust bai) of the area or any other document to prove the value of the property, must be held against him. This is a material error of law because the petitioner was only required to prove that he had paid the sum of Rs. 20,000/- as consideration. This was done through the oral testimony discussed above and the mutation of sale itself which showed payment of Rs. 20,000/- by way of consideration. The aust bai or other mutations could only have provided evidence of market value generally and not evidence of the actual amount paid as required in Issue No. 3 reproduced above.
The learned Courts below have relied on Mutation No. 3661 (Exh. P-5) and Mutation No. 3858 (Exh. P-6) to arrive at the market value of the suit property. Apart from the fact noted above, that determination of market value had become unnecessary, reliance on the mutations (Exh. P-5 & Exh. P-6) is also misconceived Ex. P-5, for the reason noted above, has no relevance. The other mutation (Exh. P-6) is in respect of a sale. There is, however, no evidence on the record as to the location, quality and other particulars of the land mentioned in Exh. P-6. It is, therefore, not possible to compare the land in the Mutation (Exh. P-6) with the land which is subject matter of the present lis or to hold that the two properties were, in all material particulars, similar. For this reason, reliance of the learned Courts below on Exh. P-6 for the purpose of determining the market value of the suit land is not justified.
At this point, I may add that the very fact the respondent produced only one mutation of sale i.e. Exh. P-6 and did not produce other mutations in the village or the average price (aust bai)) of sales made in the village, was sufficient for the purpose of holding that the respondent-plaintiff had failed to discharge the onus of proof placed on him in respect of Issue No. 4. The learned Courts below appear to have been swayed by the fact that the suit land was in the possession of the respondent-plaintiff and, therefore, payment of Rs. 20,000/- was not believable. The factum of possession, coupled with the reasoning based on Exh. P-6 noted above, was treated by the Courts below to conclude that the petitioner could not have paid "such huge amount as sale consideration". This conclusion, I am afraid, is entirely conjectural and is not supported by the evidence available on record. It is the respondent who had been burdened with proving Issue No. 4. Had he produced the aust bai or led evidence as to the location, quality etc. of the land in Exh. P-6 to enable comparison of the said land with the suit land, the Courts below could, perhaps, have treated such evidence as proof of the probable market value of the suit land. No evidence to this end, however, has been produced by eh respondent.
I now need to touch upon the question of market value in the context of the Punjab Preemption Act, 1991. For this purpose, reference may be made to the provisions of Section 28 of the said Act which provides as under:--
"28. Market value how to be determined.--For the purpose of determining the market value of a property, the Court may consider the following, among other matters, as evidence of such value--
(a) the price or value actually received or to be received by the vendor from the vendee.
(b) the estimated amount of the average annual net profits of the property;
(c) the value of similar property in the neighbourhood; and
(d) the value of similar property as shown by previous sales made in the near past."
The respondent, quite clearly, did not produce evidence in respect of the four matters which legitimately could have been considered by the Courts below for determining the market value of the property in question. Firstly, the respondent-plaintiff failed to produce any evidence that the amount of consideration actually received by the vendor from the vendee, was Rs. 7000/- as alleged by him. Secondly, the respondent did not produce the estimate of the average annual net profits of the property. Thirdly, no evidence of the value of similar property in the neighbourhood was brought on record. For reasons discussed above, the mutation Exh. P-6 by itself cannot be treated as evidence of similar property. Lastly, there is no evidence on record of previous sales of similar property made shortly prior to the sale mutation which is dated 18.11.97. Mutation No. 3858 (Exh. P-6), it may be noted, was sanctioned on 31.7.2000 i.e. after the disputed sale. In this view of the matter, there can be no doubt at all, that the respondent had failed to prove the market value of the suit land.
(Waseem Iqbal Butt) Order accordingly.
PLJ 2006 Lahore 1252 [Rawalpindi Bench Rawalpindi]
Present: Sayed Zahid Hussain, J.
DOST MUHAMMAD--Petitioner
versus
KHAIR MUHAMMAD and 2 others--Respondents
C.R. No. 86 of 2006, heard on 8.6.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11, S. 115--Constitution of Pakistan, 1973--Art. 199--Rejection of plaint--Application for rejection of plaint was accepted by Courts below--Assailed--Scope and applicability--Provisions of O. VII, R. 11 of the Code of Civil Procedure, 1908 are invokable to such suit for rejection of plaints at the initial stage so that the parties are relieved from pursuing vexatious litigation--Held: Suit as meritless and vexatious, it must be nipped in the bud at the initial stage--Trial of such suit would have merely prolonged an unnecessary and frivolous litigation--Exercise of jurisdiction by Courts below in rejecting plaint could not be regarded either illegal and without jurisdiction--Petition dismissed. [P. 1253] A
Mr. Muhammad Younis Bhatti, Advocate for Petitioner.
Date of hearing : 8.6.2006.
Order
A mutation of Gift No. 2307 dated 14.2.2004, by means of which Respondent No. 1 alienated the property in favour of Respondent No. 2, his son, was sought to be assailed through a declaratory suit instituted before the trial Court. In that an application for rejection of the plaint was filed by the respondents, which application has been accepted by the Courts below, as a result the present petition has been filed before this Court.
The contention has been considered in the light of the material brought on record. The admitted position is that Khair Muhammad/Respondent No. 1 is father of the petitioner as also of Respondent No. 2. Through the above-mentioned mutation he transferred the suit property in favour of Respondent No. 2, his other son. It was this mutation and disposition of the property, which was sought to be assailed before the trial Court. The application which was made by the respondents jointly for rejection of the plaint was taken up by the trial Court who proceeded even to record the better statement of Respondent No. 1 on 13.12.2005. It was stated by him on oath that he had transferred the property in favour of Respondent No. 2 of his free will and consent and he was possessed of full senses and was not acting under the influence of Respondent No. 2. An opportunity to cross-examine him was afforded to the petitioner but no cross-examination was conducted. In such view of the matter when a Muslim owner of the property is vested with all rights to dispose of his property, during his lifetime the disposition made by Respondent No. 1 in favour of Respondent No. 2 cannot in any way be termed either illegal or contrary to law. Indeed the petitioner had no right or locus standi to object to the same. The contention of the learned counsel that the petitioner should have been afforded opportunity of producing evidence in the circumstances is untenable inasmuch as in the light of the admission made by Respondent No. 1 there was no use of keeping such a suit pending. It may be observed that the provisions of Order VII, Rule 11 of the Code of Civil Procedure, 1908 are invokable to such suits for rejection of plaints at the initial stage so that the parties are relieved from pursuing vexatious litigation. If on meaningful reading of the plaint and the material brought on record by the plaintiff, the Court finds the suit as meritless and vexatious, it must be nipped in the bud at the initial stage. The trial of such a suit would have merely prolonged an unnecessary and frivolous litigation. The exercise of jurisdiction by the Courts below in rejecting the plaint in the circumstances cannot be regarded either illegal or without jurisdiction.
The petition is dismissed accordingly.
(Waseem Iqbal Butt) Petition dismissed.
PLJ 2006 Lahore 1254
Present: Muhammad Muzammal Khan, J.
Haji TARIQ ALI--Petitioner
versus
Mst. SHAMIM AKHTAR and 2 others--Respondents.
W.P. No. 18733 of 2005, decided on 6.4.2006.
Muslim Family Laws Ordinance, 1961--
----S. 9--Constitution of Pakistan, 1973, Art. 199--Past maintenance--Application for maintenance after expiry of 90 days from service of notice--Decree set aside--Jurisdiction of arbitration council--Maintainability--Corum non judice--Whether after the divorce to a wife arbitration can council grant past maintenance claimed by her--Question of--Held: Pending notice of divorce by the husband, wife's application for maintenance after the expiry of 90 days from the service of notice, was not maintainable as she was not wife of the respondent--Order held void, illegal/non-existence and corum non judice--Petition accepted. [P. 1256] A & B
1991 CLC 1813; 1989 SCMR 119; 2000 MLD 1900; 2001 CLC 961 and 1986 CLC 2312 ref.
Mr. Ihsan Ali Sheikh, Advocate for Petitioner.
Syed Mahmood Shah Bokhari, Advocate for Respondents.
Date of hearing: 6.4.2006.
Order
Instant Constitutional petition challenged the judgments/orders dated 2.10.2002 and 31.8.2005, passed by the Chairman, Arbitration Council of Union Council No. 18 Gujjarpura, Lahore and that of D.O. (R), to be declared illegal, void and of no legal consequence whereby application of Respondent No. 1 for grant of maintenance allowance was accepted and on petitioner's revision petition, the same was reduced to Rs. 4000/- per month, respectively.
Succinctly, relevant facts are that the petitioner married with Respondent No. 1 on 24.10.1996, according to Muslims rites through registered Nikah Nama. This wedlock did not give birth to any child and on account of strained relations, petitioner divorced Respondent No. 1 through a notice dated 12.11.1998 in terms of Section 7 of the Muslim Family Laws Ordinance, 1961 and the Chairman, Arbitration Council, Ward No. 54, Gujjarpura, Lahore, made the divorce effective on 12.2.1999.
Respondent No. 1 on 14.9.2000 when her divorce had already become effective filed an application before the Chairman, Arbitration Council, (Respondent No. 2) for recovery of maintenance allowance from 24.10.1996 to 28.1.1999. The application was contested by the petitioner by filing his written reply. Chairman, vide his order dated 2.10.2002 accepted the application filed by Respondent No. 1 and granted her maintenance allowance with effect from 24.10.1996 to 12.9.1999 at the rate of Rs. 8,000/- per month, amounting to Rs. 2,00,000/-.
Petitioner aggrieved of the decision by Respondent No. 2 dated 2.10.2002 filed a revision petition before the Collector with the powers of Controlling Authority (Respondent No. 3) who partly accepted the revision and reduced the quantum of maintenance allowance to Rs. 4000/- per month vide order dated 31.8.2005. Petitioner, thereafter, filed instant Constitutional petition with the relief noted above, and Respondent No. 1 in response to notice by this Court was represented through his counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. All the material facts leading to controversy inter parties, are admitted between them, like marriage, issuance of notice of divorce by the petitioner on 12.11.1998, and its effectiveness by the Chairman, Arbitration Council, concerned on 12.2.1999 and the only point which hinged for determination is as to whether after the divorce to a wife had become effective, can file an application under Section 9 of the Muslim Family Laws Ordinance, 1961. Case law on the subject of maintainability of application for grant of maintenance allowance by Ex-wife is divergent. In a case of Ghulam Jillani versus Deputy Commissioner/ District Collector and others (1991 CLC 1813), the learned Single Judge in Chamber of this Court took the view that since Section 9 of the Muslim Family Laws Ordinance, 1961 is a beneficial piece of legislation and is to be construed, keeping in view the object for which it was enacted i.e. to provide remedy to the women for recovering maintenance from their husband before a domestic forum free from all legal formalities and that the Ex-wife could maintain application under Section 9 of the Ordinance (Ibid) because liability of maintenance having once accrued, its recovery could be ordered through provisions under discussion. This judgment was based on a case decided by the Honourable Supreme Court i.e. Muhammad Najeeb versus Mst. Talat Shahnaz and others (1989 SCMR 119) which related to right of a wife to claim past maintenance from her Ex-husband. The other view that Chairman, Arbitration Council, looses jurisdiction to entertain, adjudicate or to decide the application by Ex-wife for grant of maintenance allowance, was approved in the cases of Muhammad Zarif versus Mst. Safia Bibi (2000 MLD 1900), Mst. Shabnam Rasheed versus District Collector and others (2001 CLC 961) and by the Honourable Supreme Court in the case of Mst. Naziran versus Collector Sialkot and 2 others (1990 SCMR 803). The Honourable Supreme Court approved the ratio of judgment in the case of Mushtaq Ahmad versus Collector Lahore (1986 CLC 2312).
With the above referred judgments in the field, I proceeded to examine the provisions of Section 9 of the Muslim Family Laws Ordinance, 1961 under which the Chairman, Arbitration Council, has been conferred jurisdiction to grant maintenance allowance to a wife and before whom Respondent No. 1 moved her application for grant of maintenance allowance. Provisions of law under examination reads as under:
"9. Maintenance.--(1) If any husband fails to maintain his wife adequately or where there are more wives than one, fails to maintain them equitably, the wife or all or any of the wives may in addition to seeking any other legal remedy available apply to the Chairman who shall constitute an Arbitration Council to determine the matter, and the Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband."
The above referred legislation clearly denotes that wife who is not being adequately maintained by her husband, besides availing other legal remedies, has been given right to apply to the Chairman, Arbitration Council, to settle the dispute regarding payment of maintenance allowance. It does not speak of a situation where a woman had seized to be a wife by operation of provisions of the same enactment, making her divorce effective. In other words ex-wife cannot go before the Chairman, Arbitration Council, calling him constitute Arbitration Court for award of the allowance in question. Looking from another angle, Arbitration Council, can only be constituted inter spouses whose relationship of husband and wife subsisted at the time of application. Besides my own formulation there are two judgments by the Honourable Supreme Court governing the subject one in the case of Muhammad Najeeb (supra) and the other in the case of Mst. Naziran (supra). Earlier judgment by the Honourable Supreme Court in the case of Muhammad Najeeb is not only a leave refusing but is also by the Hon'ble two Judges whereas the latter judgment in the case of Mst. Naziran is in appeal and was graciously given by a larger Bench consisting of five Hon'ble Judges of the August Supreme Court. Above all the judgment in the case of Mst. Naziran being later in time is binding on every body including me and has to be followed being law of the land. In this judgment the apex Court of this country while interpreting Section 7 of the Muslim Family Laws Ordinance, 1961 found that pending notice of divorce by the husband, wife's application for maintenance after the expiry of 90 days from the service of notice, was not maintainable as she was not wife of the respondent in that case. Respectfully following the dictum of the Honourable Supreme Court, it is held that notice of divorce dated 12.11.1998 had become effective on 12.2.1999 through a certificate issued by the Chairman, Arbitration Council, where after application by Respondent No. 1 filed on 14.9.2000 could not have been entertained by Respondent No. 2 whose proceedings culminating into his order dated 2.10.2002 were corum non judice and the order was ab-initio void. The revisional Court without adverting this legal defect decided the revision petition reducing the maintenance allowance of Respondent No. 1 which too was illegal, emerging out of proceedings which could not have been entertained. Both the impugned orders by Respondents Nos. 2 and 3 being void are declared to be non-existence in the eye of law. It goes without saying that Respondent No. 1 after her divorce had become effective, could not maintain application under Section 9 of the Ordinance (ibid) but she could certainly file a suit for its recovery before the learned Judge Family Court concerned being a liability already accrued against the petitioner. Under law, Family Court can grant past maintenance of 3 years.
For the reasons noted above, instant petition is accepted and the impugned orders dated 2.10.2002 and 31.8.2005 passed by Respondents Nos. 2 and 3 are declared to be illegal/non-existence, with no order as to costs.
(Waseem Iqbal Butt) Petition accepted.
PLJ 2006 Lahore 1257
Present: Syed Shabbar Raza Rizvi, J.
SAKHAWAT HUSSAIN SHAH--Petitioner
versus
STATE and 3 others--Respondents
W.P. No. 18426 of 2005, decided on 30.6.2006.
Constitution of Pakistan, 1973--
----Arts. 13 & 199--Criminal Procedure Code, (V of 1898) S. 561-A--Police Order, 2002, Art. 155(c)--Double punishment--Protection or enforcement of a right of punishment of wrong--Corpus juris secundum the term "prosecution"--The word "prosecution" appears to have been used in Art. 199 of the Constitution--Marginal heading indicated Art. 13 of Constitution of Pakistan, 1973 is a protection against double punishment, which tends to show that it is only where prosecution has finally concluded and ended either in acquittal or conviction that fresh prosecution for the same offence would be barred. [P. 1259] A
Police Order, 2002--
----Art. 155(2)--Constitution of Pakistan, 1973, Art. 199--"Prosecution"--Prosecution in context of Art. 155(2) means institution and continuance of a criminal proceedings after framing of formal charge before competent Court and pursuing the proceedings until final judgment of acquittal or conviction passed--Held: Merely registration of an FIR cannot be construed as "prosecution" in context of Art. 155(2) of the Police Order, 2002--Petition dismissed. [P. 1260] C & E
Words and Phrases--
----The word "prosecute" is derived from a latin word and signifies not only "to follow" but to follow intensively without intermission to follow or pursue with a view to reach execute or accomplish. [P. 1259] B
Words and Phrases--
----According to Wharton's Law Laxicon, "prosecution" means a proceedings either by way of indictment or information in criminal Courts in order to put an offender upon his trial. [P. 1260] D
Dr. Shaukat Hussain, Advocate for Petitioner.
Mr. Khurshid Anwar Bhindar, Addl. Advocate General Punjab.
Date of hearing: 30.6.2006.
Order
The petitioner through the learned counsel filed the present writ petition to seek quashment of FIR No. 283/05 registered under Section 155(c) of Police Order, 2002 at P.S. Sambarial District Sialkot.
The petitioner is a Police Inspector; the above mentioned FIR has been registered against him accusing that he declared innocent accused nominated in FIR No. 427 dated 1.9.2004 at P.S. Sambarial, District Sialkot, SP, Investigation Sialkot deputed ASP, Daska to probe into the matter on whose report DPO Sialkot ordered for registration of present FIR which has been sought to be quashed.
The learned counsel for the petitioner contends that registration of the FIR is void ab-initio as it was registered in disregard of mandatory provisions of sub-article (2) of Article 155 of Police Order, 2002. According to him, under the said provisions, the prosecution cannot be initiated unless a report in writing is made by an officer authorized in this behalf.
The report was sought from the DPO, Sialkot. In the said report the DPO stated that petitioner was found guilty of faulty/defective investigation, therefore, at the instance of Respondent No. 3, the FIR was registered under Section 155(c) of the Police Order, 2002.
The learned counsel for the petitioner as well as the learned Addl. Advocate General Punjab were directed to address this Court as to what is definition of "prosecution" as the whole case of the petitioner hinges upon the definition of "prosecution". They were also asked to give their opinions whether prosecution includes registration of FIR because the learned counsel for the petitioner has sought quashment of the FIR on the ground mentioned above. Today, the learned counsel was asked to substantiate his arguments with some case-law or legal literature, he expressed his inability to find out any case-law. Both the learned counsel for the petitioner as well as the learned Addl. Advocate General, Punjab were suggested some case law by me and the case was kept in waiting but none of them have appeared.
The Hon'ble Supreme Court of Pakistan construed the expression "prosecution" in several cases. For example his Lordship Shafi-ur-Rehman, J. expressed himself in the following words:
"On the extended meaning of word "prosecution" all the steps taken by the Court after filing of a police report or on a complaint with the object of holding the trial would amount to prosecution of the accused. (Muhammad Abbas vs. The State, PLD 1981 SC 642).
In another judgment considering the meaning of word "prosecution" in context of Article 13 of the Constitution of Pakistan, his lordship, Naseem Hassan Shah, J. referred to some well known sources of law and also considered extended and limited meanings, in different contexts of `prosecution'. For advantage of all, the relevant para is reproduced as under:
"The important word in Article 13 is "prosecution". According to Corpus Juris Secundum the term "prosecution" has differed meanings when used in different relations and it is regarded as a word of limited or extended signification according to the intention of the law maker or the person using it. In its broadest sense the term would embrace all proceedings in the course of justice or even elsewhere for the protection or enforcement of a right of the punishment of a wrong, whether of a public or private character. In a more limited sense the term includes the act of conducting or waging a proceeding to Court; the following up or carrying on of an action of suit already commenced until the remedy be attained; the institution and carrying on of a suit in a Court of law or equity to obtain some right or to redress and punish some wrong. It includes commencing, conducting and carrying a suit to a conclusion in a Court of justice. It is in this limited sense that the word "prosecution" appears to have been used in Article 13 of the Constitution, significantly, the marginal heading indicates that this Article is a protection against double punishment, which tends to show that it is only where the prosecution has finally concluded and ended either in acquittal or conviction that a fresh prosecution for the same offence would be barred. Stroud's Judicial Dictionary explains that term "prosecution" amongst others in the following manner:
"The "prosecution" of an action ends with the final judgment therein (Hurne vs. Druyff, LR 8 Ex. 214)."
The word "prosecute" is derived from a Latin word and signifies not only "to follow", but "to follow intensively" without intermission; thus, to follow or pursue with a view to reach, execute or accomplish." (Syed Alamdar Hussain Shah vs. Abdul Baseer Qureshi and two others, PLD 1978 SC 121).
From the above it is clear that the word "prosecution" in context of Article 155(2) means institution and continuance of a criminal proceedings after framing of a formal charge before a competent Court and pursuing the said proceedings until final judgment of acquittal or conviction.
According to Wharton's Law Laxicon by A.S. Oppe 14th Edition 1976 155(2) means institution and continuance of a criminal proceedings after framing of a formal charge before a competent Court and pursuing the said proceedings until final judgment of acquittal or conviction. According to Wharton's Law Laxicon by A.S. Oppe 14th Edition 1976 reprint, page 810, "prosecution" means a proceedings either by way of indictment or information, in the Criminal Courts in order to put an offender upon his trial. According to the Sindh High Court, the word "prosecution" occuring in Article 13 would mean initiation or starting of proceedings of criminal nature before a Court of law or a judicial Tribunal in accordance with the procedure prescribed in the Statute which creates the offences and regulates the proceedings. (Ismail A. Rehman v. Muhammad Sadiq PLD 1990 K 286).
Similar findings were given by his lordship (late) Rustam S. Sidhwa, J. of Lahore High Court, Lahore (as he then was) in Tasawar Hussain vs. The State, 1986 PCr.LJ 2218).
As a result of above discussion, it is held that merely registration of an FIR cannot be construed as "prosecution" in context of Article 155(2) of the Police Order, 2002, thus this writ petition is dismissed.
(Rafaqat Ali Sohal) Petition dismissed.
PLJ 2006 Lahore 1260
Present: Muhammad Muzammal Khan, J.
ABDULLAH--Petitioner
versus
NAILA ASLAM and 3 others--Respondents
W.P. No. 1468 of 2006, decided on 22.6.2006.
Family Courts Act, 1964 (XXX of 1964)--
----Ss. 5 & 7--Muslim Family Law Ordinance, (VIII of 1961), S. 9--Constitution of Pakistan, 1973, Art. 199--Suit for granting of maintenance allowance and recovery of dower amount as per agreement--Suit decreed and appeal was dismissed--Assailed--Enhancement of dower amount--Husband did not refuse his liability to pay maintenance allowance awarded to wife and minor son--Wife could not prove enhancement of dower amount and agreement by her was forged--Wife claimed in plaint, not only produced agreement executed by husband enhancing the dower amount but also examined its marginal witnesses--Denial of execution by the petitioner appeared to be after thought and was put forth just to avoid liability to pay enhanced dower amount--No effort on his behalf was ever made for comparison of signature from handwriting expert by moving application before Courts below which negatively reflects on his stance in written statement--Held: Dower amount was fixed in nikahnama but same under Islamic Law could have been enhanced by husband at any time during subsistence of marriage--Lawful decision within jurisdiction could not be substituted on petition and dismissed. [P. 1262] A & B
Rana Muhammad Saleem Akhtar, Advocate for Petitioner.
Date of hearing: 22.6.2006.
Order
Instant Constitutional petition prayed judgments/decrees dated 5.4.2005 and 23.1.2006 passed by the learned Judge Family Court and the learned Additional District Judge, Faisalabad (Respondents Nos. 3 and 4) to be declared illegal, void and of no legal consequence, whereby suit filed by Respondent No. 1 for grant of maintenance allowance and dower amount was decreed and the petitioner's appeal was dismissed, respectively.
Succinctly, relevant facts are that petitioner entered into a tie of marriage with Mst. Naila Aslam (Respondent No. 1) on 11.3.2001 through a registered Nikahnama according to Muslim rites. This marriage led to birth of a male child Muhammad Hassan (Respondent No. 2) but relations between the spouses did not remain cordial and after separation, ended into a divorce on 29.6.2002. Respondent No. 1 on her own behalf and on behalf of Respondent No. 2 filed a suit for recovery of her outstanding dower amount of Rs. 100,000/- alongwith maintenance allowance for both of them at the rate of Rs. 5000/- per month. She pleaded in her plaint that divorce dated 29.6.2002 was revoked on 2.8.2002 with the condition of enhancement of dower amount from Rs. 500/- to Rs. 100,000/- besides payment of maintenance allowance at the rate of Rs. 5000/- per month and these conditions were reduced to writing in form of an agreement dated 15.8.2002. She further averred that petitioner left for Saudi Arabai and did not pay the dower amount or maintenance allowance, as per agreement inter parties.
Petitioner being defendant in the suit, contested the same by filing his written statement. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Judge Family Court, seized of the matter, after doing the needful, decreed the suit of Respondents Nos. 1 and 2 and awarded maintenance allowance to Respondent No. 1 at the rate of Rs. 2000/- per month till her Iddat period whereas to Respondent No. 2 at the rate of Rs. 1500/- per month till his majority. Respondent No. 1 was also awarded decree for her outstanding dower amount of Rs. 100,000/-, through the judgment/decree dated 5.4.2005.
Petitioner aggrieved of decision of the trial Court filed an appeal before the learned Additional District Judge, Faisalabad, but remained unsuccessful as the same was dismissed on 23.1.2006. He has now filed instant petition with the prayer noted above.
I have heard the learned counsel for the petitioner and have examined the record, appended herewith. Petitioner did not refuse his liability to pay maintenance allowance awarded to either of Respondents Nos. 1 and 2 but his main stress was against the decree awarded to Respondent No. 1 for dower amount of Rs. 100,000/-. It was contended that Respondent No. 1 could not prove enhancement of dower amount and the agreement relied by her was forged/fictitious. Respondent No. 1 in support of her claim in the plaint, not only produced an agreement executed by the petitioner enhancing the dower amount as Ex.P.1 but also examined its marginal witnesses. Both the Respondents Nos. 3 and 4 have compared signatures of the petitioners on Ex.P.1 with his admitted signatures on Exh.D.1 and have returned specific findings that both the signatures tally to each other. Petitioner himself is living in Saudi Arabia and in his absence, his special attorney appeared in the witness box a DW.1, who alongwith other witness DW.3, deliberately avoided to admit signatures of the petitioner on Exh.D.1 though this document was sent by him through Embassy of Pakistan at Riyadh, Saudi Arabia. Denial of execution of Exh.P.1 by the petitioner, appears to be afterthought and was put forth just to avoid liability to pay enhanced dower amount, as no effort on his behalf was ever made for comparison of signatures from some handwriting expert by moving any application before the trial or appellate Court or even by making such request during the course of hearing of instant petition, which negatively reflects on his stance in the written statement. No doubt, initially the dower amount was fixed as Rs. 500/- in the Nikahnama but the same under Islamic Law could have been enhanced by the husband at any time during the subsistence of marriage. File is absolutely thirsty of the proof that petitioner ever since his compromise with Respondent No. 1 reverted back to his married life or discharged his obligations under the agreement, voluntarily executed by him. Respondent No. 1 since her desertion is leading an isolated life and has devoted herself for bringing up of Respondent No. 2, which should have been shared by the petitioner. Keeping in view sacrifices of Respondent No. 1 and her contribution towards the brought up of offshoot of the parties, I refrain to exercise my Constitutional jurisdiction in aid of the petitioner. Scan of record and impugned judgments revealed that lis was correctly concluded without committing any error of law.
For the reasons noted above, no case for interference in Constitutional jurisdiction was made out. Even otherwise, a lawful decision within the ambit of conferred jurisdiction cannot be substituted on this petition, which being devoid of any merit, is dismissed in limine.
(Waseem Iqbal Butt) Petition dismissed
PLJ 2006 Lahore 1263
Present: Syed Zahid Hussain, J.
SHAMEER--Petitioner
versus
NOORA and 3 others--Respondents
W.P. No. 6525 of 2000, heard on 27.6.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Constitution of Pakistan, 1973, Art. 199--Statement of one plaintiff on oath--Effect on co-plaintiff--Suit was filed by two plaintiffs and was decided on his statement on the oath--Held: Suit could not be decided on the basis of statement of one plaintiff, neither other plaintiff was present nor any statement was made by him or by his authorized agent which could bind him--Statement could not be used against him to deprive from his valuable rights in the property which could be determined on due trial of the suit. [Pp. 1264 & 1265] A & B
Mr. G.H. Khan, Advocate for Petitioner.
Sh. Naveed Shahryar, Advocate for Respondent No. 1.
Ex-parte for Respondents Nos. 2 & 3.
Date of hearing: 27.6.2006.
Judgment
Shameer son of Mamand had filed an application under Section 12(2) of Code of Civil Procedure, 1908 qua decree dated 26.6.1985 which application was accepted by the trial Court on 4.12.1995. However, on a revision petition filed by Noora (Respondent No. 1), the order of the trial Court was reversed by the learned Additional District Judge, Jhang on 9.2.2000 which has been assailed through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
The background of the litigation briefly stated is that a declaratory suit was filed by Ameer and Shameer (both brothers) that they were owners of land measuring 25 kanals and Mutation No. 1888 dated 11.12.1974 whereby the land was purported to have been transferred to Noora and sale by Noora of the same in favour of Ghulam Muhammad vide sale-deed dated 18.10.1975 was illegal and ineffective qua their rights. Their case in the plaint was that they were victim of fraud and forgery. While the suit was being tried before the trial Court, Ameer one of the plaintiffs offered the decision of the suit on the basis of oath. The statement of Ameer and that of Noora were recorded by the Court on 26.6.1985 and the suit was dismissed by the trial Court on the said date. Shameer who was one of the plaintiffs in the said suit made an application under Section 12(2) of Code of Civil Procedure, 1908 that since he was owner to the extent of half of the suit land, the said suit could not be decided on the basis of statement of his brother Ameer. The application was contested. After due trial, the same was accepted by the trial Court on 4.12.1995 which order as mentioned above was reversed by the revisional Court on 9.2.2000.
The learned counsel for the parties have been heard.
The perusal of the statements made on 26.6.1985 by Ameer and Noora are of importance on the basis of which the suit was dismissed. The statement made by Ameer shows that he acted for himself and made the statement as such. The statement of Noora defendant/respondent clearly claimed the purchase of land from Ameer. Neither Shameer was present in Court nor any statement was made by him or by his authorized agent which could bind him. The statement of Ameer though he was brother of Shameer could not be made use of against Shameer to deprive him of his valuable right in the property which could be determined on due trial of the suit. The learned trial Judge was thus justified to accept his application which order was erroneously and illegally interfered with by the learned Additional District Judge, Jhang. In the impugned judgment the learned Additional District Judge has himself observed that "Shameer would be at liberty to file independent civil suit if law so permits him." Suffice it to observe that since he had already filed application under Section 12(2) of Code of Civil Procedure, 1908 which was the only remedy for him, no direction for any independent suit was warranted. The approach adopted by the learned Additional District Judge while reversing the order of the learned trial Court cannot be regarded as legal nor was it justified by the facts and circumstances of the case. The contention of the learned counsel for Noor that since the sale made in favour of Ghulam Muhammad had become subject-matter of pre-emption suit and a decree was passed in favour of Muhammad Yar, pre-emptor, therefore, application under Section 12(2) of Code of Civil Procedure, 1908 without impleading him was incompetent, has no substance inasmuch that all those who were originally party to the suit had been impleaded as party in the application under Section 12(2) of Code of Civil Procedure, 1908. The said application did not suffer from any such defect. It is, however, observed that since the suit qua Shameer is yet to be tried by the trial Court, such a plea can be raised in the suit which of course will then be considered by the Courts seized of the matter according to law.
In view of the above, judgment dated 9.2.2000 passed by the learned Additional District Judge, Jhang is declared as illegal and of no legal effect. As a result whereof, order of the learned trial Court dated 4.12.1995 will stand revived. Consequently the suit qua Shameer will be tried and decided in accordance with law by the trial Court. The petition is accepted accordingly with no order as to costs.
(Waseem Iqbal Butt) Petition accepted.
PLJ 2006 Lahore 1265
Present: Muhammad Sair Ali, J.
Mst. PARVEEN AKHTAR and another--Petitioners
versus
MUHAHMMAD SATTAR--Respondent
C.R. No. 544 of 2006, decided on 22.3.2006.
(i) Words & Phrases--
----Determination of the probable value on the basis of preliminary and summary inquiry is not a case decided. [P. 1271] H
(ii) Civil Procedure Code, 1908 (V of 1908)--
----Ss. 114 & 47(a)--Dismissal of Review Application not a "case decided"--Dismissal of petitioner's application for review of the "probable value" and "Zar-e-Soem" in the absence of any of the conditions prescribed in Ss. 114 & 47(a) of the Civil Procedure Code was not a "case decided". [P. 1271] I
(iii) NWFP Pre-emption Act, 1987--
----S. 24--Non-applicability in Province of Punjab--Judgments in the cases cited as 1992 SCMR 746 and 1995 SCMR 135 interpreted the law as prescribed in S. 24 of the NWFP Pre-emption Act, 1987 which on the probable value provisions was not applicable to the cases in the province of Punjab. [P. 1269] A
(iv) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24--Second proviso--Determination of probable value by the Court--Scope of--Under Second Proviso to Section 24 of the Punjab Pre-emption Act, 1991, the probable value of the property can be determined by the Court when:--(i) No sale price is mentioned in the sale-deed; or (ii) No sale price is mentioned in the mutation; or (iii) Price mentioned in the sale-deed or the mutation appears to be inflated. [P. 1270] B
(v) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24--Direction by the Court to deposit 1/3rd of probable value--Mandatory provision--Determination--Court in the province of Punjab is mandatorily required by the use of word "shall" to determine the probable value of the property, to direct deposit of 1/3rd of such probable value within 30 days of the suit as per the first proviso of S. 24, Punjab Pre-emption Act, 1991. [P. 1270] C
(vi) Jurisdiction--
----Jurisdiction of trial Court--Validity--Trial judge had jurisdiction to determine the probable value in summary/preliminary inquiry on the basis of the material placed before him by the respondent/plaintiff and also to provisionally opine that the price of Rs. 1 Crore as stipulated in sale-deed was prima facie inflated--Held: Trial Court properly exercised his jurisdiction to hold the preliminary/summary inquiry on the material before him. [P. 1270] D & E
(vii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24--Jurisdiction to determine probable value--Preliminary inquiry--Trial Court was not obligated to hold a detailed trial within the trial--Validity--Trial Court was not obliged under the second proviso of S. 24 to hold a detailed trial within a trial and to hear the petitioner/defendant after a notice--A notice to the petitioner for a hearing in such preliminary inquiry had an innate and serious risk and almost a certain possibility to delay the determination process and the order of deposit of Zar-e-Soem beyond the statutory period of 30 days. [P. 1270] F
(viii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24(4)--Scope of--Defendants had no vested right of notice or hearing--However if the defendant by then happened to be before the Court, their assistance could also be taken if it was so considered necessary by the Court. [P. 1271] G
Ch. Khurshid Ahmad, Advocate for Petitioner.
Date of hearing : 22.3.2006.
Order
In his suit dated 30.4.2005 for possession through pre-emption filed against the petitioners to pre-empt the sale transaction incorporated in registered sale-deed dated 10.2.2005, the respondent plaintiff pleaded the actual sale price of the land and its market value to be Rs. 33 lacs as against the sale price of Rs. 1 crore shown in the registered sale-deed. Alongwith the suit, the respondent pre-emptor also filed an application under Section 24 of the Punjab Pre-emption Act, 1991 for determination of the "probable value" of the property for the purposes of deposit of 1/3rd of the sale price. Relying upon the material placed with this application (two sale-deeds and Aust Yaksala for the year 2004), the learned trial Judge, Gujranwala through a detailed order dated 2.5.2005 observed that the sale price shown in the sale deed was received at home and appeared to be exaggerated while plaintiff's pleaded value of Rs. 33 lacs was also not believable. As such, the probable value was tentatively fixed at Rs. 66 lacs without prejudice to its final determination in the decision of the suit.
The learned trial Judge in the above referred order directed the respondent plaintiff to deposit Rs. 22 lacs as 1/3rd of the probable value of the land by or before 31.5.2005 or otherwise to face the dismissal of the suit.
Against the above order dated 2.5.2005, the respondent filed C.R. No. 112/2005 before this Court. This civil revision was dismissed in limine through order dated 26.5.2005 with the following observations:--
"I ... ... ... see no perversity in exercise of the discretion by the learned trial Judge who deemed it appropriate on petitioner's application not to order deposit of 1/3rd of the amount of the sale price and instead proceeded to determine the provisional price at Rs. 66,000,00/- which was also make subject to the final determination at the time of final inquiry in the trial. It is Court's discretion to hold a tentative inquiry that too on the basis of material presented by the petitioner. There is no jurisdictional error in exercise of the discretion which appears to have been validly and properly exercised by the learned trial Judge. In absence of any jurisdictional error or perversity, this civil revision is of-course not maintainable. Furthermore, the order of the determination of the provisional price at Rs. 66,000,00/- is a provisional order and is not the decision of the subject in the trial, wherefor, this civil revision is further unmaintainable on this ground."
After decision of the above civil revision, the respondent plaintiff paid a sum of Rs. 22 lacs as 1/3rd of the probable value of Rs. 66 lacs in terms of the learned trial Court's order dated 2.5.2005.
As per the order sheet of the learned trial Court, the petitioners (defendants in the suit) avoided summons wherefor proclamation in the newspaper was published for 15.7.2005 when the petitioners appeared and made an application under Section 151 of the Civil Procedural Code to seek re-determination of the probable value of the suit land. The respondent filed a contesting reply thereto. The learned trial Judge through order dated 20.2.2006 dismissed the application of the petitioners.
The petitioner defendants have called in question the above referred order dated 20.2.2006 in this civil revision.
The learned counsel for the petitioners contended that the petitioners filed their application on coming to know of the order dated 2.5.2005 to seek a direction from the learned trial Court for refixation of the probable value and the Zar-e-Soem on the basis of the sale price of Rs. 1 crore mentioned in the sale-deed. Further stated that the probable value as fixed by the learned trial Judge through order dated 2.5.2005 and upheld by this Court in order dated 26.5.2005 passed in C.R. No. 112/2005, was without notice to the petitioner defendants and without a proper inquiry. Reliance was placed on the case of "Muhammad Akbar vs. Muhammad Malik and another" (PLD 2005 Lahore 1) to contend that in the similar circumstances, an Hon'ble Bench of this Court, exercising constitutional and supervisory jurisdiction, order re-fixation of the probable value after hearing both the parties. The learned counsel for the petitioners also relied upon the cases of "Awal Noor vs. District Judge, Karachi and 8 others" (1992 SCMR 746), "Habibullah Khan vs. Amir Zaman and 9 others" (1995 SCMR 135) and "Abdul Wahid etc. vs. Sardar Ali etc." (2000 Law Notes (Lahore) 99) to contend that the Court had no jurisdiction or discretion to fix a probable value when the sale price was mentioned in the sale-deed.
Heard.
None of the cases above referred by the learned counsel for the petitioners reinforces the case of the petitioners. The principles settled in the cases of "Awal Noor vs. District Judge, Karachi and 8 others" (1992 SCMR 746) and "Habibullah Khan vs. Amir Zaman and 9 others" (1995 SCMR 135) were that:--
(a) Under Section 24 of the NWFP Pre-emption Act, 1987 (as then existing), if the sale price is not mentioned in the sale-deed or the mutation, the Court will determine the probable value through a process of approximation;
(b) In absence of the sale-deed or the mutation or the statement of the sale price in the sale-deed or the mutation, the Court will determine the probable value on an inquiry of "the preliminary or summary nature" on the material obtained from the plaintiff and also from the defendant if he per chance appears;
(c) Zar-e-Soem has to be ordered by the Court and deposited by the plaintiff upto 30th day from the filing of the suit;
(d) The Court has no power to direct deposit of Zar-e-Soem or any further amount thereupon beyond the statutory period of 30 days;
(e) First Proviso to Section 24 ibid bars extension of time beyond 30 days by a positive command in the negative and a direction for payment of any additional amount beyond the prescribed period of 30 days is ultra vires the law and thus inconsequential; and
(f) An application seeking re-fixation or amendment in the probable value and Zar-e-Soem was an application for review under the restricted scope of Section 114 read with Order XLVII of the Civil Procedural Code.
Both the above referred cases were decided by the Hon'ble Supreme Court of Pakistan to interpret unamended Section 24 of the NWFP Pre-emption Act of 1987. This Section was though amended by NWFP Pre-emption Act 10 of 1992 through the substitution of sub-sections (1), (2) and (3) thereof. But for the purposes of the present case, the amendments so made need no discussion.
The Hon'ble Supreme Court of Pakistan settled the law that Zar-e-Soem was to be deposited in 30 days from the filing of the suit and a Court had no jurisdiction or discretion to extend the time on revision of the earlier order even to direct deposit of an additional amount thereto to make up the deficiency or otherwise.
In the present case, the petitioners through their application dated 15.7.2005 thus sought review of order dated 2.5.2005 which was upheld by this Court through order dated 26.5.2005. Since the statutory period of thirty days had long elapsed, the Court had no jurisdiction or discretion to order further deposit of Zar-e-Soem by revision of its order dated 2.5.2005. Therefore, the application for refixation of the probable value and Zar-e-Soem was unmaintainable.
Furthermore, in view of the law laid down in the above judgments by the Hon'ble Supreme Court, the ground urged by the petitioners was that the learned trial Judge had no jurisdiction to determine the probable value of the property owing to expressly stipulated sale price of Rs. 1 crore in the sale-deed.
The learned counsel for the petitioners overlooked that the judgments in the case of "Awal Noor vs. District Judge, Karachi and 8 others" (1992 SCMR 746) and "Habibullah Khan vs. Amir Zaman and 9 others" (1995 SCMR 135) interpreted the law as prescribed in Section 24 of the NWFP Pre-emption Act of 1987 which on the probable value provisions was not applicable to the cases in the Province of the Punjab. Under the second Proviso to the unamended Section 24 of NWFP Pre-emption Act, 1987 or the first Proviso to the post 1992 amended Preemption Act, the Court has been given the power to determine the probable value "provided that no sale price is mentioned in the sale-deed or in the mutation". Meaning thereby that under the NWFP Act of 1987, the Court has not been allowed jurisdiction as in the Punjab to determine the probable value when the price mentioned in the sale-deed or in the mutation appears to be inflated.
In the Province of Punjab, the under quoted second proviso to Section 24 of the Punjab Pre-emption Act, 1991 prescribes that:--
"Provided further that if no sale price is mentioned in the sale-deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third of the probable value of the property."
So under the above reproduced provision of the Punjab Pre-emption Act, 1991, the probable value of the property can be determined by the Court when:--
(i) No sale price is mentioned in the sale-deed; or
(ii) No sale price is mentioned in the mutation; or
(iii) The price mentioned in the sale-deed or the mutation appears to be inflated.
In each of the above three cases, the Court in the Province of Punjab is mandatorily required by the use of word `shall' to determine the probable value of the property, to direct deposit of 1/3rd of such probable value within 30 days of the suit as per the first Proviso of Section 24 ibid.
The learned trial Judge thus had the jurisdiction to determine the probable value in summary/preliminary inquiry on the basis of the material placed before him by the respondent plaintiff and also to provisionally opine that the price of Rs. 1 crore (exchanged at home) as stipulated in the sale-deed was prima facie inflated.
The learned trial Judge considered the sale-deeds and Aust Yaksala produced by the respondent plaintiff to approximate the probable value of Rs. 66 lacs, also disbelieved the value of Rs. 33 lacs pleaded by the respondent.
In the opinion of this Court, the learned trial properly exercised his jurisdiction to hold the preliminary/summary inquiry on the material before him. As a result of this inquiry held on the first hearing of the suit, the respondent plaintiff was validly directed to deposit the amount of 1/3rd of the said probable value within the period of 30 days prescribed in the first proviso to Section 24 ibid.
For the determination of the probable value, the learned trial Court was not obligated under the second proviso of Section 24 ibid to hold a detailed trial within a trial and to hear the petitioner defendants after a notice. A notice to the petitioners for a hearing in this preliminary inquiry had an innate and serious risk and almost a certain possibility to delay the determination process and the order of deposit of Zar-e-Soem beyond the statutory period of 30 days. As held by the Hon'ble Supreme Court of Pakistan in the case of "Awal Noor vs. District Judge, Karachi and 8 others" (1992 SCMR 746) and "Habibullah Khan vs. Amir Zaman and 9 others" (1995 SCMR 135), the Court had no such jurisdiction to order the deposit of Zar-e-Soem beyond the prescribed thirty days period nor did it possess the power to extend such period. The whole process was thus to be completed in this short period of thirty days. In consonance with the wisdom and the intention of law, the Hon'ble Supreme Court of Pakistan defined the nature of inquiry for the determination of probable value to be "preliminary and summary". The object was to enable the trial Court to efficiently complete the process of approximation of the "probable value" and direction to the plaintiff to deposit Zar-e-Soem. Similarly it was also to ensure the plaintiff adequate period to make such deposit within the time capped thirty days. It therefore naturally emanates from the principles in the above judgments that the defendants had no vested right of notice or a hearing. However if the defendants by then happened to be before the Court, their assistance could also be taken if it was so considered necessary by the Court. Also because under sub-section (4) of Section 24 ibid, the probable value fixed at the initial stage of the suit was not to prejudice or affect the final determination of the price payable by the pre-emptor.
It can thus be safely observed that the claim of the petitioners to notice and participation as a right, in the proceedings for the determination of "probable value" of the property, is contrary to the object, scheme and the purpose of law.
In consonance with order dated 26.5.2005 passed by this Court in respondent's C.R.No. 1112-2002, it is reiterated that the determination of the probable value on the basis of preliminary and summary inquiry in the present case, is not a "case decided". The jurisdiction was validly, properly, fairly and justly exercised by the learned trial Judge. The impugned order does not suffer from arbitrariness, mis-exercise, excess of jurisdiction or material irregularity in the circumstances of the present case.
Furthermore dismissal of petitioners' application for review of the "probable value" and "Zar-e-Soem" in the absence of any of the conditions prescribed in Section 114 read with Section 37 (a) of the Civil Procedural Code is also not a "case decided". The learned trial Judge infact had no jurisdiction to order any additional deposit of Zar-e-Soem beyond the period of 30 days from the date of the suit as was sought by the petitioners through their application. This civil revision is thus held to be unmaintainable.
Reliance of the learned counsel for the petitioners on the cases of "Abdul Wahid etc. vs. Sardar Ali etc." (2000 Law Notes (Lahore) 99 and "Muhammad Akbar vs. Muhammad Malik and another" (PLD 2005 Lahore 1) cannot be of any advantage to the petitioners. Humbly and respectfully stating that in the former case of "Abdul Wahid etc. vs. Sardar Ali etc." (2000 Law Notes (Lahore) 99), irrespective of the comparative differences in Sections 24 of 1987 Act of NWFP and 1991 Act of Punjab, the learned Court held, that when the price mentioned in the sale-deed or in the mutation appears to the Court to be inflated, the process of approximation of the probable value can be adopted. In the later case of "Muhammad Akbar vs. Muhammad Malik and another", extraordinary and supervisory constitutional jurisdiction of this Court was invoked under a set of circumstances different from that in the present case and also that the principles settled by the Hon'ble Supreme Court of Pakistan in the above referred cases were not the questions obtaining in the case.
In view of what has been discussed above, this civil revision is dismissed.
(Rao Farid-ul-Haque Khan) Revision dismissed.
PLJ 2006 Lahore 1272 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
KARIMAN (deceased) through his LEGAL REPRESENTATIVES and others--Petitioners
versus
SHER MUHAMMAD (deceased) his LEGAL REPRESENTATIVES and others--Respondents
Civil Revision No. 1000-D of 1995, heard on 3.4.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 20--Power to adjourn hearing and direct appearing--Memo of parties prepared instead of impleading--Effect--Matters were given in the hand of Advocate and who instead of impleading the parties with reference to the contents of the decree sheet prepared the memo of parties with reference to the original plaint--Held: Such cannot be termed as a fault of the said party and it should not be allowed to suffer on the basis of technicality--Revision allowed. [P. 1273] A
1993 SCMR 363, PLD 1989 SC 532, ref.
M/s. Arshad Anjum Chughtai, Mian Arshad Pervaiz and Malik Muhammad Latif Khokhar, Advocates for Petitioners.
Mr. Khizar Hayyat Khan Punian, Advocate for Respondents Nos. 2(i) to 2(iii), 4(i), 8 to 11, 14, 16, 17, 21 to 25, 28 and 30.
Date of hearing : 3.4.2006.
Judgment
For the order I propose to pass in this case, reference to the pleaded facts would not be necessary. Suffice it to say that feeling aggrieved of judgment and decree dated 14.12.1989 passed by the learned trial Court whereby a declaratory suit filed by the petitioners had been dismissed, they filed a first appeal. During the course of the said appeal, it was pointed out that Sher Muhammad and Khair Muhammad Defendants Nos. 1 and 2 in the original suit had died during the pendency of the suit and their legal representatives had also been brought on record but the said LRs have not been impleaded and instead Sher Muhammad and Khair Muhammad were impleaded as such. An application was filed on 9.1.1991 by the petitioners for permission to implead the LRs of the said deceased persons. The learned Additional District Judge vide order dated 24.9.1995 proceeded to dismiss the application and to dismiss the appeal as well finding it to be not maintainable in absence of the LRs of the said Sher Muhammad and Khair Muhammad.
Learned counsel for the petitioners contend that the impugned judgment and decree of the learned Additional District Judge, Kot Addu, is violative of the dictum of the Hon'ble Supreme Court of Pakistan in the cases of Mst. Sardar Begum v. Muhammad Anwar Shah and others (1993 S.C.M.R. 363) and Said Muhammad and others v. M. Sardar and others (PLD 1989 SC 532). Learned counsel for the contesting respondents has not much to say to oppose the said contention. He, however, insisted that the application had been filed belatedly.
I have examined the copies of the records. The reason as to why the appeal had been dismissed has already been noted by me above. It is but evident that the impugned judgment and decree of the learned Additional District Judge, Kot Addu, fails to take note of the said latter judgment of the Hon'ble Supreme Court of Pakistan interpreting Order XLI Rule 20 C.P.C. In the said case of Said Muhammad and others, the following rule was laid which was also confirmed in the said later authority:--
"The rigidity in the application of Order 41, Rule 20, C.P.C., as concluded in Labhuram's case that where a party is not impleaded in appeal within the period of limitation he can never be deemed to be an interested party in the result of the appeal, is no longer an inviolable rule. In this milieu, this Court in Muhammad Jamil's case examined the question of negligence but did not implead the necessary party in the exercise of its discretion irrespective of the fact that the limitation had run out. This confirms the legislative intent in enacting Order 41, Rule 20, C.P.C.
Further as to the reason that although the Court can exercise such powers suo motu yet it is deprived from exercising such powers at the instance of the party is also of no substance for it would make no difference even if it is initiated by the party whose move for the addition of a party is necessitated by the circumstances of the case as in that event too it will be an exercise of suo motu power. This will be in consonance with the principles that the Court will ordinarily exercise power because technicalities notwithstanding laws or procedure are meant for the advancement of justice and not for denying it."
Now it is being urged by the learned counsel that the matters were given in the hand of a learned Advocate and who instead of impleading the parties with reference to the contents of the decree sheet prepared the memo of parties with reference to the original plaint. Now this cannot be termed as a fault of the said party and it should not be allowed to suffer on the basis of a technicality. To my mind, the dictum laid down above by the Hon'ble Apex Court is fully applicable to the petitioner resent case. The civil revision accordingly is allowed. The impugned judgment and decree dated 24.9.1995 of the learned Additional District Judge, Kot Addu, is set aside, the result would be that the first appeal filed by the petitioners shall be deemed to be pending before the learned Additional District Judge, Kot Addu, before whom the petitioner arties shall appear on 8.5.2006. An amended memo of first appeal shall be filed on the same date. The learned Court first appeal shall summon the remaining respondents, requisition the records and proceed to decide the appeal on its merits. No orders as to costs in this civil revision but the petitioner shall deposit a sum of Rs. 5,000/- in the Court of learned Additional District Judge to be disbursed to the respondents as directed by the said Court.
A copy of this judgment be immediately remitted to the learned Additional District Judge, Kot Addu.
(Rao Farid-ul-Haque Khan) Petition allowed.
PLJ 2006 Lahore 1274 [Multan Bench Multan]
Present: Syed Shabbar Raza Rizvi, J.
SHAH MUHAMMAD and 5 others--Petitioners
versus
STATE--Respondent
W.P. No. 2231 of 2004, decided on 12.4.2006.
(i) Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898), S. 435--Conversion of writ petition into criminal revision--Petitioner requested to file Crl. revision instead of writ petition--Validity--Petitioner might be allowed to file a criminal revision instead of writ petition against impugned order--Held: Without allowing him to file another criminal revision by withdrawing present petition, the instant petition was converted into criminal revision--Murder case related to the year 1992 and the present petition was filed on 11.5.2004, two years have already passed yet the matter was pending in High Court--The trial is in limbo since 1992. [P. 1276] A
(ii) Compromise--
----Verification of compromise--"Application made on behalf of the accused" for verification of compromise was accepted while application u/s. 265-K was hereby dismissed--Meaning--The words "application made on behalf of accused/petitioners for verification of compromise is accepted", means application to examine or decide whether a genuine compromise was effected between the accused persons and legal heirs of the deceased or not--These words were not used by the Sessions Judge to mean that the application of petitioners/accused was "accepted"/allowed in the sense that plea of valid and genuine compromise was believed or accepted by him. [P. 1277] B
(iii) Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 265-K & 345--Compromise was not accepted--Validity--Held: Though impugned order was not appropriately worded but it means that Sessions Judge, did not accept the compromise between the parties and he intended to proceed with the trial--Trial Court was directed to proceed with trial in accordance with law. [Pp. 1277 & 1278] C & D
Mr. Akhtar Mehmood Khan, Advocate for Petitioners.
Khan Wajid Nawaz Khan, Advocate for Complainant.
Date of hearing : 12.4.2006.
Order
The petitioners have called in question order of the learned Sessions Judge, Muzaffargarh dated 28.4.2004, whereby the learned Sessions Judge refused to accept application of the petitioners filed under Section 265-K Cr.P.C. and decided to proceed with the trial.
The brief facts leading to the impugned order and thereafter filing of the instant petition are that FIR No. 62/92 was registered on 12.5.1992 under Sections 302, 452, 354-A, 337-A, 148 and 149 PPC at P.S. Shehr Sultan, District Muzaffargarh. The said FIR was registered at the instance of complainant Mst. Parveen Ijaz. One Abbas Haider son of Ijaz Hussain was murdered in the occurrence who was survived by legal heirs namely, Zafar Haider(B), Ilyas Haider (B), Musarrat Ijaz (S), Nusrat Ijaz (S), Nighat Ijaz (S) and Farhat Ijaz (S). The names of the accused are (1) Shah Muhammad, (2) Sajid Mehmood, (3) Ashraf Riaz, (4) Muhammad Khan, (5) Muhammad Arshad, (6) Ashfaq Ahmad (all petitioners in the present petition), (7) Ch. Muhammad Jamil, (8) Zafar Iqbal, (9) Dilawar Hussain, (10) Tasadduq Hussain, (11) Iftikhar Hussain, (12) Altaf and (13) Mian Iqbal Hussain; total number of accused is 13.
It is contended by the learned counsel for the petitioners that at bail stage parties entered into a compromise. All the legal heirs sworn affidavits to give legal effect to the said compromise. On the basis of above mentioned compromise, an application was moved on behalf of the petitioners under Section 265-K Cr.P.C. which was dismissed by the learned trial Court on 3.7.2003. A criminal revision filed in this Court was also dismissed. Against order of this Court Crl. Petition No. 611-L/03 was filed in the Hon'ble Supreme Court. The Hon'ble Supreme Court of Pakistan disposed of the petition on 4.9.2003 with the following direction:--
"Before proceeding with the trial of the case, the trial Court shall first proceed to record evidence of the parties about the plea raised by the petitioners about the compromise and record findings with regard thereof."
In pursuance of the above order of the learned Apex Court, the learned Sessions Judge, Muzaffargarh gave his finding on point of compromise on 4.9.2003 which has been impugned before this Court through the present writ petition/criminal revision.
The learned counsel at the very outset requested that he may be allowed to file a criminal revision instead of present writ petition against the impugned order. Without allowing him to file another criminal revision by withdrawing present petition, this petition is converted into criminal revision. The reasons are that this murder case relates to the year 1992 and the present petition was filed on 11.5.2004, two years have already passed yet the matter is pending in this Court. The trial is in limbo since 1992; 14 years have already passed. It may be pertinent to point out, in the overall circumstances of this case, that complainant Mst. Parveen Akhtar was wedded with one Ijaz Hussain who was a Magistrate. He left a considerable property, for the same reason, the complainant entered into second marriage with Mumtaz Hussain, brother of her previous husband, Ijaz Hussain. Second husband also died, after his death, his brothers Iqbal Hussain, Iftikhar Hussain and Altaf Hussain developed differences with the complainant of the FIR over cash of Rs. 1,80,00,000/- deposited in the bank and agricultural property, etc. These facts are mentioned in the FIR itself which was registered on orders of then Mr. Justice Sheikh Khizar Hayat, former Judge of this Court. All the petitioners/accused in the FIR are police officials. Prima facie, it seems, the background of this case and police officers involved, in this case directly or indirectly, area reasons that this case is not being allowed to move forward towards its natural conclusion. After making above observation, I proceed to decide the present petition.
Following the direction of the Hon'ble Supreme Court, the learned Sessions Judge, Muzaffargarh passed the impugned order on 28.4.2004. The concluding part of his order is as follows:
"Upshot of above discussion is compromise (Ex. DK) was executed between Mst. Parveen Akhtar, Shah Muhammad and Sajid Masood, likewise, affidavits (Ex. DD) and (Ex. DH) were sworn by the deponents being legal heirs of deceased. However, as compromise (Ex. DK) was executed between one of the legal heirs i.e. Parveen Akhtar and accused/petitioners while rest of legal heirs were not privy to the said compromise, therefore, no premium can be granted to the accused/petitioner prior to conclusion of trial."
The above finding of the learned Sessions Judge, Muzaffargarh clearly points out that he did not accept that a compromise was effected between the accused persons and all legal heirs, that is why, he mentioned that "no premium can be granted to the accused/petitioners prior to conclusion of trial".
"Epitome of above discussion is that application made on behalf of accused/petitioners for verification of compromise is accepted while application under Section 265-K Cr.P.C. read with Section 345 of the Code of Criminal Procedure is hereby dismissed subject to observations made by this Court in para-13 of the order, according to which, legal implications for compromise shall be settled at the time of conclusion of trial."
The learned counsel for the petitioners/accused has focussed all his attention and arguments on first three lines of para-14 of the judgment of the learned Sessions Judge, Muzaffargarh "epitome of above discussion is that application made on behalf of accused/petitioners for verification of compromise is accepted while application under Section 265-K is hereby dismissed." The words "application made on behalf of accused/petitioners for verification of compromise is accepted", means application to examine or decide whether a genuine compromise was effected between the accused persons and legal heirs of the deceased or not. These words were not used by the learned Sessions Judge to mean that application of the petitioners/accused was "accepted"/allowed in the sense that plea of valid and genuine compromise was believed or accepted by him. Otherwise, the learned Sessions Judge could not have expressed himself in the words which immediately followed word "accepted" stating "that application under Section 265 read with Section 345 Cr.P.C. is hereby dismissed". The learned Sessions Judge further noted in para-14 that his finding in para-14 is subject to observation made by him in para-13 of the order. The observations made in para-13 is "however, as compromise (Ex. DK) was executed between one of the legal heirs Mst. Parveen Akhtar and accused/petitioners while rest legal heirs were not Privy to the said compromise, no premium can be granted to the accused/petitioner prior to conclusion of the trial." Thus, I have no doubt in my mind that though para-14 of the impugned order is not appropriately worded but it means that the learned Sessions Judge, Muzaffargarh did not accept the compromise between the parties and he intended to proceed with the trial. The case law eluded to by the learned counsel for the petitioners is not applicable to the facts and circumstances of the present case as compromise has not been believed/accepted in the present case or it was accepted only to the extent of between accused/petitioners and one legal heir only.
The order of the learned Sessions Judge, Muzaffargarh was called in question by filing the present writ Petition in the year 2004, as already stated above. Vide order of this Court dated 9.6.2004 proceedings before the trial Court were also suspended, this is the reason, I persuaded the learned counsel for the parties to argue this case today as already and unnecessary the adjudication has been delayed in the murder case relating to year 1992.
In view of the above discussion and my observations, this petition is dismissed. The learned trial Court is directed to proceed with the trial in accordance with law.
(Rao Farid-ul-Haque Khan) Petition dismissed.
PLJ 2006 Lahore 1278 (DB) [Multan Bench Multan]
Present: Fazal-e-Miran Chouhan & Tariq Shamim, JJ.
Sheikh MUHAMMAD SHAHZAD--Appellant
versus
NAVEED ANWAR SETHI and 4 others--Respondents
I.C.A. No. 117 of 2005 in W.P. No. 6096 of 2004, heard on 19.4.2006.
(i) Constitution of Pakistan, 1973--
----Art. 199--Jurisdiction--Scope--Order without jurisdiction and void ab initio can be challenged in writ jurisdiction--Validity--Argument for the appellants regarding order of the justice of peace being an administrative and as such not amenable to writ jurisdiction was misconceived as an order without jurisdiction can be challenged in the Constitutional jurisdiction of High Court. [P. 1282] A
(ii) Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 22-A & B--Jurisdiction of the Justice of the Peace--Ssope--Order to extent of a direction to the S.H.O. to restore the possession of shop to the appellant was beyond the ambit of the powers conferred on the justice of peace by virtue of Ss. 22-A & 22-B Cr.P.C. [P. 1282] A
Justice of Peace--
----Order of the Justice of Peace to handover the possession was without jurisdiction--Held: Justice of peace while passing the order had clearly acted beyond his jurisdiction and had in fact passed the order in violation of the statutory provisions of law as such the order of the Judge in chamber striking it down to that extent as legal. [P. 1282] B
PLD 1996 SC 632, NLR 2000 Civil 578, ref.
Mian Muhammad Akram, Advocate for Appellant.
Maulvi Muhammad Sultan Alam and Mr. Muhammad Qasim Khan, A.A.G. for Respondents.
Date of hearing : 19.4.2006.
Judgment
Tariq Shamim, J.--This Intra-Court Appeal is directed against the order dated 19.5.2005 passed by a learned Single Judge in Chamber in Writ Petition No. 6096 of 2004.
The averments made in the writ petition show that there was a dispute between the appellant and Respondents Nos. 1 and 2 regarding purchase of cotton on credit by the appellant who failed to pay the cost/price amounting to Rs. 1,17,502/- and Rs. 1,83,500/- the total being Rs. 3,01,002/-. The matter was referred to ANJUMAN AARTIAN GRAIN MARKET VEHARI and before the said ANJUMAN the appellant on 15.6.2004 admitted that he had to pay the said amount to Respondents Nos. 1 and 2 and promised to pay the same by 30.6.2004. He further stated that in case he fails to do so, after getting the Shop No. 56/B Ghalla Mandi Vehari vacated from United Bank Limited, he shall hand over the possession thereof to the respondents at a monthly rent of Rs. 8000/- adjustable towards the amount liable to be paid by the appellant till the entire liability was discharged. Since the appellant failed to pay the amount in question to the said respondents in terms of the decision of the said ANJUMAN, the appellant handed over the possession of the shop to the said respondents on 2.8.2004. Later on the appellant changed his mind and attempted to retake the possession illegally on which the said respondents filed a suit for injunction against the appellant. In the meanwhile the appellant on 15.10.2004 moved an application under Section 22-A/22-B Cr.P.C. for registration of a criminal case against Respondents Nos. 1 and 2. The learned Sessions Judge Vehari in his capacity as the Justice of Peace vide order dated 4.11.2004 issued directions for the registration of a case against the respondents and further directed the S.H.O. to restore possession of the said shop to the appellant.
The order dated 4.11.2004 was challenged by Respondents Nos. 1 and 2 in Writ Petition No. 6096/2004 on the ground that the learned Justice of Peace at the most could issue orders for registration of a case but could neither interfere nor could direct the S.H.O. to interfere in the possession of the writ petitioners in the said shop particularly when an interim injunction issued by the Civil Court existed in the field whereby the appellant in the I.C.A. had been restrained from interfering in the possession of the said respondents. The learned Judge in Chamber after hearing the arguments at length observed that there was no provision in the Criminal Procedure Code whereby the Justice of Peace could direct the S.H.O. for handing over the possession of property to any party. Hence, the impugned order to the extent it pertained to the delivery of possession of the shop to the appellant was declared to be illegal and without lawful authority and the same was set aside. Being aggrieved of the said order, the appellant has challenged the same through the instant I.C.A.
The main crux of the arguments of the learned counsel for the appellant was that the order of the learned Single Judge in Chamber was not sustainable in law as the order of the learned Justice of Peace whereby a direction was given to the S.H.O. to hand over the possession of the shop to the appellant was in accordance with law and the same was fully covered under Section 22-A (3)(b) Cr.P.C. and that the order being an administrative order was not amenable to the writ jurisdiction of this Court.
On the other hand, learned counsel appearing on behalf of Respondents 1 and 2 submitted that the learned Justice of Peace had no power under Section 22-A/22-B Cr.P.C. to order restoration of possession of the shop to appellant and that the order of the learned Single Judge impugned in the Intra Court Appeal was strictly in accordance with law.
We have heard the learned counsel for the parties at length. Before proceeding further, Section 22-A and 22-B of the Cr.P.C. are reproduced hereunder for facility of reference:
"22-A. Powers of Justice of the Peace.--(1) A Justice of the Peace for any local area shall, for the purposes of making an arrest having within such area all the powers of a Police Officer referred to in Section 54 and an officer-in-charge of the police-station referred to in Section 55.
(2) A Justice of the Peace making an arrest in exercise of any powers under sub-section (1) shall, forthwith, take or cause to be taken the person arrested before the officer-in-charge of the nearest police-station and furnish such officer with a report as to the circumstances of the arrest and such officer shall thereupon re-arrest the person.
(3) A Justice of the Peace for any local area shall have powers, within such area, to call upon any member of the police force on duty to aid him--
(a) in taking or preventing the escape of any person who has participated in the commission of any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having so participated; and
(b) in the prevention of crime in general and, in particular, in the prevention of a breach of the peace or a disturbance of the public tranquility.
(4) where a member of the police force on duty has been called upon to render aid under sub-section (3), such call shall be deemed to have been made by a competent authority.
(5) A Justice of the Peace for any local area may, in accordance with such rules as may be made by the Provincial Government--
(a) issue a certificate as to the identity of any person residing within such area, or
(b) verify any document brought before him by any such person, or
(c) attest any such document required by or under any law for the time being in force to be attested by a Magistrate, and until the contrary is proved, any certificate so issued shall be presumed to be correct and any document so verified shall be deemed to be duly verified, and any document so attested shall be deemed to have been as fully attested as if he had been a Magistrate.
(6) An ex-officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding--
(i) non-registration of a criminal case;
(ii) transfer of investigation from one police officer to another; and
(iii) neglect, failure or excess committed by a police authority in relation to its functions and duties.
22-B Duties of Justices of the Peace.--Subject to such rules as may be made by the Provincial Government, every Justice of the Peace for any local area shall--
(a) on receipt of information of the occurrence of any incident involving a breach of the peace, or of the commission of any offence within such local area, forthwith make inquiries into the matter and report in writing the reuslt of his iqnuiries to the nearest Magistrate and to officer-in-charge of the nearest police station;
(b) if the offence referred to in Clause (a) is a cognizable offence, also with the place of occurrence of the offence.
(c) when so required in writing by a police-officer making an investigation under Chapter XIV in respect of any offence committed within such local area.
(i) render all assistance to the police-officer in making such an investigation.
(ii) Record any statement made under expectation of death by a person in respect of whom a crime is believed to have been committed."
The argument of the learned counsel for the appellant regarding order of the Justice of Peace being an administrative order and as such not amenable to writ jurisdiction is misconceived as an order without jurisdiction and void ab initio can be challenged in the constitutional jurisdiction of this Court. The order to the extent of a direction to the S.H.O. to restore possession of the shop to the appellant was beyond the ambit of the powers conferred on the Justice of Peace by virtue of Sections 22-A and 22-B Cr.P.C. The dictum laid down by the Hon'ble Supreme Court in the case of Mrs. Shahida Zahid Abbasi and 4 others vs. President of Pakistan and others (PLD 1996 SC 632) and Haji Mushtaq Ahmad Khan, etc. vs. Govt. of N.W.F.P. through the Secretary in the Department of Excise and Taxation, Peshawar, etc. (NLR 2000 Civil 578) is fully attracted to the instant case.
Since the learned Justice of Peace while passing the order had clearly acted beyond his jurisdiction and had in fact passed the order in violation of the statutory provisions of law as such the order of the learned Judge in Chamber striking it down to that extent is legal and calls for no interference.
In view of what has been discussed above, the Intra-Court Appeal being without merits is dismissed.
(Rao Farid-ul-Haque Khan) I.C.A. Dismissed.
PLJ 2006 Lahore 1282
Present: Muhammad Muzammal Khan, J.
Mst. SHARIFAN BIBI and another--Petitioners
versus
ALLAH RAKHA and 3 others--Respondents
C.R. No. 323 of 2006, decided on 12.5.2006.
Limitation Act, 1908 (IX of 1908)--
----Ss. 5 & 29(2)--Civil Procedure Code, (V of 1908), S. 115--Issuance of succession certificate--Appeal accepted--Assailed--Limitation for filing civil revision was prescribed by a special statute i.e. CPC, Section 5 of limitation Act, was not available to the petitioners for the prayed condonation of delay--Mere old age of petitioner was not enough and can not be considered as a sufficient cause for the condonation prayed, unless some incapacity/disability had been attributed to petitioner--Petitioners even incapacity/disability of petitioner would not support the petitioners in getting condonation, because they have not explained each days, delay--Petition dismissed. [Pp. 1284 & 1285] A & B
Mr. Agha S. Najamul Hassan Zaidi, Advocate for Petitioners.
Date of hearing : 12.5.2006.
Order
Instant Civil revision assailed the judgment/order dated 19.6.2004 passed the learned Additional District Judge Faisalabad, whereby two appeals filed by Allah Rakha Respondent No. 1 were accepted and succession certificate issued in favour of the petitioners was cancelled.
Succinctly, relevant facts are that one Muhammad Sharif died on 18.9.1996 leaving behind an amount of Rs. 82,779.30 in his Bank Account with National Bank of Pakistan Ayub Research Branch, Faisalabad. Petitioner No. 1 filed an application for issuance of succession certificate claiming herself to be a legal heir alongwith Ilam Din and Muhammad Shafi with the claim that they are entitled to entire amount lying with the Bank in the name of deceased Muhammad Sharif. Respondent No. 1 (Allah Rakha) moved an application before the trial Court that he being son of the deceased was entitled to the entire amount to the exclusion of Mst. Sharifan Bibi etc. who concealed this fact out of malice thus succession certificate issued in their favour may be cancelled. Allah Rakha based his claim on the succession certificate issued in his favour in the year 1998 by the learned Senior Civil Judge, Faisalabad. Petitioners also moved an application for rescission of succession certificate in the name of Respondent No. 1 on the ground that Allah Rakha was not son of Muhammad Sharif deceased.
Both the applications filed by the parties for cancellation for their respective succession certificates, were jointly tried by the trial Court and in view of controversial stance of the parties, the dispute was put to issues and recording of evidence. Evidence of the parties recorded in their respective applications was transposed in the applications by their adversaries with their concurrence. At the conclusion of trial, the learned Civil Judge seized of the matter decided both the applications against Respondent No. 1 with the findings that he was not son of Muhammad Sharif deceased vide order-dated 4.9.2002.
Respondent No. 1 aggrieved of the decision by the learned Civil Judge, filed two distinct appeals before the learned Additional District Judge where he succeeded as his appeals were accepted and he was found entitled to entire amount in the name of Muhammad Sharif, as his son. Succession certificate in the name of the petitioners was ordered to be cancelled whereas in the name of Allah Rakha-respondent was allowed to hold the field vide appellate judgment dated 19.6.2004. The petitioners thereafter, on 29.12.2005 filed instant revision petition which was barred by limitation and they filed a separate application under Section 5 of the Limitation Act 1908 for condonation of delay in filing the civil revision on the ground that Petitioner No. 1 is an old lady of 85 years of age and his co-petitioner Muhammad Shafi has already died thus the delay being no deliberate, may be dispensed.
I have heard the learned counsel for the petitioner and have examined the record, appended herewith. Undisputedly, limitation of 90 days for filing a civil revision before this Court has been prescribed by Section 115 of the CPC 1908 and not by the Limitation Act 1908. Section 5 of the Limitation Act 1908 for condonation of delay, would have been available to the petitioner, had the limitation been provided by this enactment itself? Section 29(2) of this Act provided; that where any special or local law prescribed a period of limitation different from the one prescribed by first schedule annexed therewith, provisions contained in Sections 4, 9 to 18 and 22 shall only apply if those are not expressly excluded by special or local law and the remaining provisions shall remain excluded. Since limitation for filing civil revision was prescribed by a special statute i.e. CPC, Section 5 of the said Act was not available to the petitioners for the prayed condonation of delay. While forming this view I have to my credit judgments in the cases of Allah Dino and another Versus Muhammad Shah and others (2001 SCMR 286), Islamic Republic of Pakistan through Secretary Ministry of Defence and others versus Masood Enterprises (PLJ 2001 Lahore 944) Punjab Road Transport Corporation through District Manager, PRTC, D.G. Khan and another Versus Muhammad Iqbal Lodhi and another (2003 CLC 1539).
In order to satisfy my judicial conscience, I have also examined the ground taken by the petitioners in their application under Section 5 of the Limitation Act 1908 for condonation of delay. According to them Petitioner No. 1 was an old lady of 85 years and her co-petitioner Muhammad Shafi has died, is not supported by any documentary proof and Petitioner No. 2 (a) and 2 (b) who are descendents of Muhammad Shafi were majors and whose incapacity to file a civil revision with limitation, has not been explained.
Record revealed that appeals filed by Respondent No. 1 were decided by the learned Additional District Judge Faisalabad, on 19.6.2004 and the petitioners applied certified copies of memorandum of appeal and judgments/decrees etc. on 23.6.2004 which were prepared on 5.7.2004 and were ready for delivery on this date. Petitioner No. 2 (a) Muhammad Anwar son of Muhammad Shafi received the certified copies on 24.12.2005 i.e. after lapse of about 5 months and the civil revision was ultimately field on 29.12.2005. Petitioner Muhammad Anwar who collected/received the certified copies was an employee of Agricultural University, Faisalabad and must be healthy person and could have received certified copies on their preparation and could have filed the civil revision within the period of limitation but his failure in this behalf has, in no manner, been explained. Mere old age of Petitioner No. 1 or death of Muhammad Shafi was not enough and cannot be considered as a sufficient cause for the condonation prayed unless some incapacity/disability had been attributed to Petitioner No. 1. According to my thinking, in presence of Petitioner No. 2(a) and 2(b) even incapacity/disability of Petitioner No. 1 would not support the petitioners in getting the condonation because they have not explained each day's delay, as per law laid down by the Honourable Supreme Court in the case of 1975 SCMR 304 Government of the Punjab through Secretary (Services), Services General Administrating and Information Department Lahore and another Versus Muhammad Saleem (PLD 1995 Supreme Court 396).
Submissions of the learned counsel for the petitioners that the petitioners were not provided certified copies of the appellate decree sheet which according to him, was not prepared till today, caused delay in filing the civil revision, have not impressed me three two fold reasons, firstly being that this plea has not been taken in application under Section 5 of the Limitation Act 1908 and secondly being that appellate Court was not obliged to prepare decree in an appeal arising out of a dispute regarding succession certificate. The third reason being that certified copies were not collected from the copying agency concerned for long 5 months and it is not case of the petitioners that they had been approaching the copying agency for supply of copies of the decree sheet as well. In this factual background, I feel no hesitation to hold that no sufficient cause for condonation of delay was made out, even because in view of amended Section 12 of the Limitation Act, 1908, applicability of which is also doubtful to the case in hand, time requisite for getting certified copies could only be excluded till preparation of those.
For the reasons noted above, instant revision petition being barred by limitation and application under Section 5 of the Limitation Act 1908 being not maintainable, are dismissed in limine.
(T.S.Faisal) Petition dismissed.
PLJ 2006 Lahore 1286 (DB) [Multan Bench Multan]
Present: Muhammad Jahangir Arshad & Maulvi Anwarul-ul-Haq, JJ.
MUMTAZ ALI, DEPUTY DISTRICT OFFICER (BUILDING) ROJHAAN, DISTRICT, RAJANPUR--Appellant
versus
SECRETARY, COMMUNICATION & WORKS DEPARTMENT, GOVERNMENT OF PUNJAB, LAHORE
and another--Respondents
I.C.A. No. 246 of 2005 in W.P. No. 1896, heard on 18.5.2006.
Law Reforms Ordinance, 1972 (XII of 1972)--
----S. 3--Matter of show-cause notice--Petition partly allowed--Interference in matter of show-cause notice refused--Writ petition was filed primarily with the grievance that judgment in the matter of reinstatement and the consequent benefit is not being implemented--Judge granted the prayer and directed the respondents to implement the judgment in letter and spirit--However so far as refusal to interfere in matter of issuance of show-cause notice was concerned, the same was fully supported by the judgment--It has been consistent view of the superior judiciary in the country including Apex Court that a show-cause notice does not cause a grievance and the employee should wait for the conclusion of proceedings--I.C.A. dismissed. [P. 1287] A
Mr. Muhammad Suleman Bhatti, Advocate for Appellant.
Mr. Zafarullah Khan Khakwani, A.A.G. for Respondents.
Tariq Javed, Dy. Director Legal (C&W) Deptt.
Date of hearing : 18.5.2006.
Judgment
Maulvi Anwar-ul-Haq, J.--This I.C.A. proceeds against judgment dated 10.10.2005 of a learned Single Judge, in Chamber, of this Court whereby W.P. No. 1896/2005 was partly allowed but interference in the matter of issuance of the show-cause notice impugned therein was refused.
Learned counsel for the appellant contends that since under the law appeal is provided only against final order to be passed, before the Service Tribunal, the writ petition against the issuance of show-cause notice in question on the ground stated is competent. The learned A.A.G. on the other hand, cites a full bench judgment of this Court in the case of Muzaffar Hussain v. The Superintendent of Police, District Sialkot (2002 PLC (CS) 442) to urge that the writ petition against issuance of show-cause notice under the Punjab Removal from Service (Special Powers) Ordinance, 2000 is not competent. The learned A.A.G. also brought to our notice the unreported case whereby interalia CPLA No. 3397-L/2001 was dismissed by the Hon'ble Supreme Court of Pakistan on 5.12.2001.
We have gone through the records of the WP. Now earlier the appellant was proceeded against and he ultimately approached Punjab Service Tribunal. His Appeal No. 1939/2002 was allowed vide judgment dated 23.12.2002 and he was re-instated in service. The department sought clarification of the said judgment whereupon an order was passed on 28.4.2004. Now according to the learned A.A.G. this order does give the impression that the department was allowed to proceed afresh against the appellant. We will not be commenting any further as we are told by all present that against this order of the Tribunal a civil petition is pending before the Hon'ble Supreme Court of Pakistan. Be that as it may, the writ petition was filed primarily with the grievance that the judgment in the matter of re-instatement and the consequent benefits is not being implemented. As noted by us above, the learned Single Judge has granted the said lawyer and had directed the respondents to implement the judgment in letter and spirit. However so far as refusal to interfere in the matter of issuance of show-cause notice is concerned, the same is fully supported by the said judgment, the subject matter whereof precisely was a show-cause notice issued under the said law. Needless to state that it has been consistent view of the superior judiciary in the country including the Hon'ble Apex Court that a show-cause notice does not cause a grievance and the employee should wait for the conclusion of proceedings. This is the precise observation of the Hon'ble Supreme Court of Pakistan in the said unreported judgment i.e. Allah Bakhsh etc. v. D.I.G. Police etc. (NLR 2003 UC 60) and, of course, full bench of this Court. The I.C.A. accordingly is dismissed but without any orders as to costs.
(T.S.Faisal) I.C.A. dismissed.
PLJ 2006 Lahore 1287 [Multan Bench Multan]
Present: Maulvi Anwarul-ul-Haq, J.
ISHFAQ AHMAD KHAN and another--Petitioners
versus
ELECTION TRIBUNAL UNION COUNCIL NO. 37, FATEH PUR TEHSIL MAILSI, DISTRICT VEHARI and 5 others--Respondents
W.P. No. 103 of 2006, decided on 28.3.2006.
Punjab Local Government (Elections) Rules, 2005--
----R. 152(1)--Constitution of Pakistan, 1973, Art. 199--Election petition accepted--Assailed--According to the rules applicable in the year 1986, Petitioner has qualified Secondary School Certificate Examination--Notification dated 23.7.2005 only pertains to candidates appearing in no pass/no fail Scheme--(2002-2004), and not to the petitioner who appeared in the year 1986--Petitioner has qualified secondary school certificate examination as a regular candidate--Impugned judgment is set aside--Petition accepted. [P. 1289] A
Mr. Muhammad Arif Alvi, Advocate for Petitioners.
Mr. Zafarullah Khan Khakwani, AAG.
Mian Abbas Ahmad, Advocate for Respondents Nos. 2 to 3.
Mr. Muhammad Bilal, Advocate for Respondents Nos. 4 & 5.
Dates of hearing : 27.3.2006 & 28.3.2006.
Judgment
The petitioners and the private respondents contested elections to the seats of Nazam and Naib Nazam, in UC-37/Vehari. The petitioners were declared returned with 4586 votes, Respondents Nos. 2 & 3 bagged 2976 votes while Respondents Nos. 4 & 5 got 69 votes. The Respondents Nos. 2 & 3 challenged the said elections by filing an election petition on 19.9.2005. It was objected that Ishfaq Ahmad, Petitioner No. 1 was not qualified to contest elections on the ground that according to the Secondary School Certificate, relied upon by him, he had failed in the subject of English. The election petition was contested by the petitioners. Following issues were framed by the learned Election Tribunal:
Whether the Respondent No. 1 namely Ishfaq Ahmad Khan did not qualify to consent elections for the seat of Nazim pertaining to Union Council No. 37, Fatehpur Tehsil Mailsi Distt. Vehari in view of provisions contained in Rule 152(1) of Punjab Local Government (Elections) Rules, 2005, If so, its effect? OPA
Whether the petitioners have no cause of action to file instant election petition? OPP 1-2.
Whether the petition is not maintainable and cannot proceed further legally? OPR 1-2
Whether petition has not verified as required by law, if so, its effect? OPR 1-2.
Relief.
On 17.12.2005, with agreement of the contesting parties Issue No. 1 was treated as preliminary. Vide judgment and decree dated 7.1.2006, the issue was answered in affirmative and the election petition was allowed and the election was held to be void.
Learned counsel for the petitioner contends that the petitioner was duly qualified to contest the elections as he had qualified Secondary School Certificate Examination vide Certificate (Annex. F). He refers to the relevant rules which were applicable in the year 1986. Learned counsel for the contesting respondents, on the other hand, refers to the notification dated 23.7.2005 (Annex. G/a) and relying upon judgment dated 12.8.2005 of the Hon'ble Supreme Court of Pakistan in C.P. No. 2114/05, contends that the petitioner having got an "F" in English, he stands disqualified.
I may note here that this case was heard at length on 27.3.2006 and for reasons recorded in my detailed order of the said date, I summoned the Secretary of BISE., Multan. He has appeared today and stated that according to the Rules applicable in the year 1986, the petitioner has qualified Secondary School Certificate Examination. He has further stated that the said notification only pertains to the candidates appearing in no pass/no fail Scheme (2002-2004) and not to the Petitioner No. 1 who appeared in the year 1986.
Now according to the said certificate it has been certified that Petitioner No. 1 has qualified the Secondary School Certificate Examination as a regular candidate. He has been placed in "E" grade. Now according to the details in the said Certificate, the petitioner appeared in eight subjects. He passed in seven subjects but was fail in English having been able to get only 34 marks out of 150. Now according to the Rule 13, appearing in Chapter-I of Part-2 of Calendar of BISE. Multan, (revised Edition 1990) in order to qualify for the grant of Secondary School Certificate, a candidate must pass in, at least, seven out of eight subjects included in component I & II of the Scheme of Studies taken together. According to Rule 14, while pacing a candidate in any of the grades i.e. A+ to E, the marks obtained by a candidate in a subject in which he has failed, shall not be included. Now I also find that total marks calculated i.e. 338/850, do not include said 34 marks, obtained by the Petitioner No. 1, in the subject to English.
Now coming to the said judgment of Hon'ble Supreme Court of Pakistan, being relied upon by Mian Abbas Ahmad, Advocate, I find that although it is not apparent as to in which year the petitioner, before their Lordships, appeared in the examination. However, the tenor of the contention as noted and dealt with by the Apex Court does not to show that the matter was covered by said no fail/no pass scheme in Sessions 2003/2004. Now the said officer of BISE., Multan has categorically stated that no fail/no pass scheme only pertains to the Sessions 2002/2004. There is no dispute that the petitioner appeared in Annual Examination 1986 (General Group). Said notification (Annex.G/a) would therefore, be having no application.
For the reasons stated above, I do find that the impugned judgment of learned Election Tribunal is without lawful authority. It is accordingly declared as such. Writ Petition is accepted and the impugned judgment dated 7.1.2006 of the learned Election Tribunal is set aside. However, no orders as to costs.
A copy of this judgment be immediately remitted to the learned Election Tribunal as also to the learned DRO. Vehari.
(T.S. Faisal) Petition accepted.
PLJ 2006 Lahore 1290 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
ALI MUHAMMAD--Appellant
versus
WALI MUHAMMAD, etc.--Respondents
F.A.O. No. 30 of 2003, decided on 16.5.2006.
Civil Courts Ordinance, 1962 (II of 1962)--
----S. 24--Civil Procedure Code (V of 1908), S. 21--There was an express bar in law against trial of the suit to which public officers were parties at place other than Headquarters of the district--Civil Courts Ordinance, 1962 being a special law will govern the case and displace general provisions of CPC with regard to the territorial jurisdiction and as such S. 21, CPC would not be available in protecting proceedings not held at the headquarters. [P. 1291] A
Act of Court--
----It is true that an Act of Court should not cause prejudice to any of the parties, but it is equally true that Courts of Pakistan are governed in the matter of jurisdiction vesting in them by law and even consent of parties or for that matter a wrong order of Court would not confer jurisdiction, which is not vesting in a Court by law. [P. 1291] B
Ch. Muhammad Hussain Jehanian, Advocate for Appellant.
Date of hearing : 16.5.2006.
Order
To decide this F.A.O., reference to the pleaded facts is not necessary. Suffice it to say that on 4.11.1989 the appellant filed a suit against the respondents as well as the Province of Punjab. The suit was instituted in the Court of a learned Senior Civil Judge, Sahiwal and was entrusted to a learned Civil Judge at Sahiwal. Vide order dated 23.5.1991 the said learned Court deleted the Province of Punjab from the array of defendants. Notwithstanding the fact that Respondents Nos. 21 and 22 i.e. Tehsildar Chichawatni and Patwari Halqa were parties, the learned District Judge, Sahiwal by means of an administrative order transferred the case to Chichawatni. Vide Judgment & Decree dated 27.10.1998 a learned Civil Judge, 1st Class at Tehsil Chichawanti decreed the suit. Some of the private respondents filed a first appeal against the said Judgment & Decree. It was heard by a learned Additional District Judge at Chichawatni, who found that since the said public servants were parties to the case, it could not have been heard at the Tehsil Headquarter. The matter was accordingly referred to the learned District Judge, Sahiwal for entrustment of the suit to a competent Civil Judge at Sahiwal. This was done vide Judgment & Decree 19.3.2003.
Learned counsel for the appellant contends that his client could not be made to suffer for an act of Court inasmuch as the suit was in fact filed at the District Headquarter but was transferred to Chichawatni by the learned District Judge. He further contends that no objection was taken to the jurisdiction of the learned Civil Judge at the Tehsil Headquarter and as such the learned Additional District Judge could not have set aside the Judgment & Decree on the said ground. It is further complained that the matter is pending since last about 20 years.
I have gone through the copies of the records. There is no denial that the matter is governed by Section 24 of the Civil Courts Ordinance, 1962. This being so, there was an express bar in law against trial of the suit to which public officer are parties at a place other than Headquarter of the district. This provision of law came to be interpreted by the Hon'ble Supreme Court of Pakistan in the case of Khalil-ur-Rehman vs. Town Committee Rabwah through Chairman (P.L.D. 1990 SC 792) and it was observed that the said Ordinance being a special law will govern the case and displace the general provisions of Code of Civil Procedure with regard to the territorial jurisdiction and as such Section 21 C.P.C. would not be available in protecting the proceedings not held at the headquarter. This being so, no exception can be taken to the impugned order of the learned Additional District Judge. It is true that an act of Court should not cause prejudice to any of the parties but it is equally true that Courts of this country are governed in the matter of jurisdiction vesting in them by law and even a consent of the parties or for that matter a wrong order of Court would not confer jurisdiction which otherwise is not vesting in a Court by law.
So far as the said complaint of the learned counsel is concerned, a copy of this Court be remitted to the learned District Judge, Sahiwal, for onward transmission to the learned Civil Judge, who is seized of the suit, who shall proceed to decide the case after reading the evidence of the parties already recorded and after hearing the parties preferably within 6 months of the date of receipt of this order. No orders as to costs.
(T.S. Faisal) Case remanded.
PLJ 2006 Lahore 1292 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
Rana MUHAMMAD KHURSHID and others--Petitioners
versus
FAROOQ HAIDER KHAN and others--Respondents
C.R. No. 685-D of 1991, heard on 4.5.2006.
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 35(2)--Provisions--Zarar and Zaroorat--Suit for possession by pre-emption--Dismissal of--Zarar and Zaroorat were not mentioned in the plaints--Suits were dismissed by Courts below--Assailed--Validity--Plaint required express mention of zarar and zaroorat--Civil revisions allowed and cases were remanded to trial after framing of issues and recording evidence. [P. 1293] A & B
Syed Hamid Ali Shahmir, Advocate for Petitioners.
Mr. Abdul Rehman Khan Laskani, Advocate for Respondents.
Date of hearing : 4.5.2006.
Judgment
This judgment shall decide C.R. No. 685/91 and C.R. No. 686/91 as common questions are involved.
In the matter of C.R. No. 685/91, vide Civil Court decree dated 10.1.1989 the respondents purchased land measuring 307 kanals 15 marlas while in the matter of C.R. No. 686/91 they purchased land measuring 153 Kanals 16 Marlas vide Mutation No. 8 attested on 23.10.1988. On 21.10,1989 the petitioner filed two suits for possession by pre-emption. She claimed to be a shafi Jar and Khalit and pleaded that upon acquiring knowledge of sales she made talb-i-muwathibat and talb-i-ishhad. The respondents were duly served and they filed written statements denying the said facts. The suits were dismissed as not maintainable on 11.7.1991 as Zarar and Zaroorat were not mentioned in the plaints. First appeals filed by the petitioner were dismissed by a learned Additional District Judge-II, Dera Ghazi Khan, on 23.9.1991.
Learned counsel for the petitioner contends that in view of the dictum of the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan in the case of Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore (P.L.D. 1994 SC 1), there is no necessity of mentioning the said Zarar and Zaroorat in the plaints. He draws my attention to an earlier judgment of this Court in the case of Mst. Bashiran Bibi v. Muhammad Kashif Khan and others (PLD 1995 Lahore 200) (in C.R. No. 1119/93) and to an order of the Hon'ble Supreme Court of Pakistan passed, inter alia, in Civil Appeal No. 1336/96 on 6.12.2000. Learned counsel for the respondent has not much to say to oppose the said contention of the learned counsel for the petitioner.
I have already narrated above the material contents of the plaint. The right claimed is available under the new dispensation enacted pursuant to the judgment in the case of Government of N.W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (P.L.D. 1986 SC 360). The talbs have been sufficiently pleaded. Needless to state that the matter would be governed by Section 35(2) of the Punjab Pre-emption Act, 1991, in any case.
Now C.R. No. 1119/93 was decided by this Court up-holding the dismissal of the suits for the precise reason that notwithstanding the provisions of Section 35(2) of the Punjab Pre-emption Act, 1991, the plaint required express mention of Zarar and Zaroorat. Vide order dated 6.12.2000 in Civil Appeal No. 1336/96 filed against the said judgment of this Court, the said appeal was allowed by the Hon'ble Supreme Court of Pakistan and the said judgment was set aside and the case was remanded to the trial Court for decision.
Both the civil revisions are accordingly allowed. The impugned judgments and decrees are set aside. The result would be that both the suits shall be deemed to be pending in the Court of Mr. Muhammad Arif Rana, Civil Judge 1st Class, Taunsa, before whom the parties shall appear on 2.6.2006. The learned trial Court shall requisition the records and proceed further to decide the suits on their merits after framing issues and recording evidence of the parties. No orders as to costs.
A copy of this judgment be immediately remitted to the said learned Civil Judge.
(T.S.Faisal) Case remanded.
PLJ 2006 Lahore 1293
Present: Sh. Azmat Saeed, J.
MINHAJ-UL-ISLAM SABRI--Petitioner
versus
Mrs. SOOFIA MUNIR and 7 others--Respondents
W.P. No. 17653 of 2005, decided on 7.4.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. II, R. 2 & O.VII, R. 11--Constitution of Pakistan, 1973, Art. 199--Barred by law--Validity--Relinquishment of part of claim--Claim or right could only be relinquished if plaintiff was awarded of such claim or right--In absence of such knowledge O.2, R.2 CPC would neither be applied nor subsequent suit could be barred--Such knowledge could either be actual or constructive--Premium would not be given to sheer ignorance and indolence--Perpetuating of multiplicity of proceedings must be made to avoid--Objection raised by petitioner had attained status of mixed question of law and fact--No case for interference with the order impugned was made out. [P. 1297] B
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11 & O.II, R. 2--Rejection of plaint--If suit filed barred by law the plaint could and ought to be rejected--Petition dismissed. [P. 1296] A
Mian Muhammad Hanif, Advocate for Petitioner.
Mr. Muhammad Ikram Sheikh, Advocate for Respondents.
Date of hearing : 7.2.2006.
Order
This Writ Petition has arisen from an order dated 17.6.2005 whereby petitioner's revision against the order dated 17.1.2005 was dismissed by the learned Addl. District Judge Lahore.
Precisely, relevant facts giving rise to the filing of the present petition are that Mst. Soofia Munir, hereinafter to be referred as Respondent No. 1, filed a suit for declaration with consequential relief, inter alia, against the petitioner, namely, Minhaj-ul-Islam Sabri and other defendants with the averments that plaintiff-respondent No. 1 is the owner in possession of Plot No. 2 measuring 5 Marlas purported to have been purchased by her from Respondent No. 3, namely, Ghulam Qadir, being the original allottee. She further asserted that transfer of said plot was approved by respondent society, and the registered documents stood transferred in her name. And that at one point of time, it came to the knowledge of the plaintiff that the previous management of Respondent No. 4 viz. Canal View Cooperative Housing Society had collusively manoeuvred to construct an other file of the plot in question showing its allotment to Respondent No. 2 namely Syed Shehzad Ali on 30.6.1990, who further disposed it of to petitioner-defendant on 30.6.1991 with mala fide intention fraudulently with a view to deprive the plaintiff of her legal rights. On such disclosure, plaintiff is stated to have served notice under Section 70 of the Cooperative Societies Act upon Respondent No. 4 for taking appropriate action in the matter, and on account of inaction on its part, plaintiff file the suit.
Petitioner did not turn up despite his alleged service, and was thus proceeded ex parte in the wake of absence from the Court, and the suit was accordingly decreed in terms of judgment and decree dated 12.10.1995. Subsequently, it appears that execution proceedings commenced. Whereafter, the petitioner filed an application under Order 9, Rule 13 C.P.C. for setting aside of ex-parte judgment and decree dated 12.10.1995. It appears that said application is still pending. Thereafter, Respondent No. 1 instituted an other suit against the petitioner and others praying that allotment in favour of the petitioner in respect of the property in dispute be declared as null and void and another relief was also added that transfer deed dated 30.6.1991 executed and registered in favour of the petitioner be declared as void ab initio and inoperative against the rights of Respondent No. 1, and the Sub-Registrar of documents City District Government, Lahore be directed to deliver up the registered document. Permanent injunction for protecting the alleged possession was also prayed for on her behalf. It was contended in the plaint that after obtaining the judgment and decree dated 12.10.1995, Respondent No. 1 approached Respondent No. 4 Society seeking its implementation, who expressed its inability to do so unless and until the transfer deed executed and registered by Respondent No. 4 in favour of the petitioner was also cancelled, hence, the suit was filed. In the above circumstances, the petitioner on entering appearance filed an application under Order 7, Rule 11 C.P.C. seeking rejection of the plaint on the ground that instant suit had been filed on the same cause of action, and the relief of declaration qua registered transfer deed, was available to Respondent No. 1 at the time of the institution of the earlier suit, hence, the subsequent suit was barred in view of the provision of Order 2, Rule 2 CPC. Said application was rejected by the trial Court vide order dated 17.1.2005. Being aggrieved, petitioner filed a revision petition which also failed to find favour and was dismissed by the learned Addl. District Judge vide Order impugned dated 17.6.2005.
Counsels for the parties have been heard and the record appended herewith perused. Learned counsel contends on behalf of the petitioner that earlier suit had been filed by Respondent No. 1 inter alia against the petitioner contending therein that allotment in his favour was void and inoperative against the rights of the said respondent. Allegations of fraud were made. Said suit was decreed ex-parte. It is further contended that present suit not only pertained to the same property but an indentical legal right therein has been claimed and the rights of the petitioner in the said property has been challenged. Hence, two suits are based on the same cause of action. Further contends that registered transfer deed dated 30.6.1991 in favour of the petitioner was admittedly in existence prior to filing of the first suit, hence the same could and should have been challenged by plaintiff in the earlier suit. And failure to do so constitutes relinquishment of claim and thus no relief could be asked for by her under the law. Adds that subsequent suit is clearly and squarely hit by the provision of Order 2, Rule 2 C.P.C, hence the plaint was liable to be rejected. It was further contended that where a suit is barred under Order 2, Rule 2 CPC, plaint must necessarily be rejected and the defendant therein should not be subjected to trial.
In support of his contentions, learned counsel relies on PLJ 1996 Lahore 1098 (Noor Begum vs. Muhammad Boota and 3 others), PLJ 2002 Lahore 508 (Muhammad Nawaz vs. Addl. District Judge etc), (PLD 2001 SC 325) (Hashim Khan vs. National Bank of Pakistan), 1995 CLC 88 (National Bank of Pakistan vs. Hashim Khan), 1995 CLC 183 Muhammad Yousaf Memon vs. Karachi Stock Exchange (Guarantee) Ltd.
Whereas, the learned counsel for the respondents controverts the assertions raised by the learned counsel on behalf of the petitioner by saying that Respondent No. 1 had no knowledge at the time of the filing of the earlier suit that Respondent No. 4 had executed a transfer deed in favour of the petitioner which had been registered too. Said document came to her knowledge after ex-parte decree had been passed on 12.10.1995 vide letter dated 27.4.1998, and therefore, in absence of knowledge of the transfer deed, Respondent No. 1 could not be said to have relinquished her claim or precluded to ask for relief in respect of the said document, hence, the subsequent suit was not barred under Order 2 Rule 2 CPC, therefore, the plaint could not be rejected.
It is a settled law that if suit filed in barred by law, the plaint could and ought to be rejected in terms of Order 7, Rule 11 CPC. If a suit is barred in terms of Order 2, Rule 2 CPC, the provision of Order 7, Rule 11 CPC are attracted that plaint is liable to be rejected as has been held in various judgments of the Superior Courts referred to herein above. However, in the instant case, it needs to be examined whether provision of Order 2, Rule 2 CPC would be attracted where the plaintiff in a suit denies the knowledge of the facts, which entitled her to a right to claim a relief as is in the present case. Order 2, Rule 2 CPC reads as under:
"2. Suit to include the whole claim. (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
Relinquishment of part of claim (2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, shall not afterwards sue in respect of the portion so omitted or relinquished."
Moreover, it has been found as a fact by the District Judge that Muhammad Din had no knowledge of his right to succeed on a life-estate to the property left by his wife until the decision in the former suit made it clear to him that his wife was no less a khanadamad of her father than her sister, Musammat Aishan, and that he was therefore, the person entitled by law and custom to hold the property for life. In these circumstances he cannot be said to have "intentionally relinquished" any part of his claim, within the meaning of O. 2, R. 2, Civil Procedure Code."
In another judgment reported as 1918 Nagpur 158 (Binya Bia and another vs. Ganpat and another) his lordship observed that in the context of Order 2, Rule 2 CPC that knowledge of the plaintiff of his/her right may be actual or constructive.
In view of above, this Court has no hesitation in holding that claim or right can only be relinquished, if plaintiff is aware and cognizance of such right or claim and in absence of such knowledge Order 2, Rule 2 CPC would neither be applied nor subsequent suit could be barred as intention presupposes knowledge. Such knowledge could either be actual or constructive which in the instant case is predominantly significant as the document in question has admittedly been registered under the Registration Act with all its implications including presumption as to notice. Premium should not be given to sheer ignorance and indolence. Every effort must be made to avoid perpetuating of multiplicity of proceedings. In the facts and circumstances of the case, the objection raised by the petitioner has attained the status of mixed question of law and facts which can only be determined, as held by the Courts below and in my view rightly so, after recording of evidence, and thus, I hold that two Courts below rightly declined to reject the plaint under Order 7, Rule 11 CPC as being barred in terms of Order 2, Rule 2 CPC leaving the issue to be decided on the touchstone of evidence.
The upshot of the foregoing discussion is that no case for interference was the orders impugned is made out. Consequently, this petition being destitute of any merit is dismissed with no order as to costs.
(Fozia Fazal) Petition dismissed.
PLJ 2006 Lahore 1297 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
Haji MONEER AHMAD--Petitioner
versus
ISLAMIC REPUBLIC OF PAKISTAN through SECRETARY MINISTRY OF RELIGIOUS AND MINORITIES, EVACUEE TRUST PROPERTIES BOARD & REHABILITATION, GOVERNMENT OF PAKISTAN, ISLAMABAD and 3 others--Respondents
C.R. No. 457-D of 1991, heard on 9.3.2006.
Evacuee Trust Property (Management & Disposal) Act, 1975 (XIII of 1975)--
----Ss. 8, 10(1)(b) & 14--Civil Procedure Code (V of 1908), S. 115--Constitution of Pakistan, 1973, Art. 199--Question of jurisdiction--Provisions--Property was not Evacuee Trust Property--Since the property was not Evacuee Trust Property, the Chairman and the Secretary of Federal Government had acted without jurisdiction--Exclusive jurisdiction lies with the Chairman and the Civil Court had no jurisdiction--Question as to the nature of property had to be decided by the Chairman subject to exercise of revisional powers by the Federal Government--Revision dismissed. [Pp. 1298 & 1299] A & B
Mr. Javed Ahmad Khan, Advocate for Petitioner.
Malik M. Jaffar Kambo, Advocate for Respondent.
Date of hearing: 9.3.2006.
Judgment
This judgment shall decide C.R. No. 457/D/91 and C.R. No.. 458/D/91, as common questions are involved.
According to both the plaints, the suit shops mentioned therein were owned by a Sikh before the independence of the country and were let out by him to a Hindu. The evacuee owner migrated to India. These were allotted to Ghulam Nabi (Petitioner No. 1 in C.R. No. 458/91) and Mst. Nazran, mother of Muhammad Ali son of Lakha (Petitioner No. 2 in C.R. No. 458/91). PTD was issued on 12.6.1976. A reference was filed under Sections 8 and 10 of Evacuee Trust Property (Management and Disposal) Act (XIII of 1975). It was allowed by the Chairman of the Evacuee Trust Board on 12.12.1984. While revision filed against the said order was dismissed by Federal Government on 31.8.1987. These orders were stated to be illegal and void on the ground that the property was not evacuee trust property but was an evacuee property. The suits were contested. Issues were framed. Vide judgment and decree dated 6.6.1990 passed in both the suits the learned trial Court held that the Court had no jurisdiction and that the suit was barred by law and rejected the plaints. First appeals filed in both these cases were dismissed by learned District Judge, Sahiwal on 17.7.1991.
Learned counsel for the petitioner argues that since the property was not Evacuee Trust Property, the Chairman and the Secretary of the Federal Government have acted without jurisdiction while passing the said orders. Learned counsel for the respondent, on the other hand, refers to the provisions of Sections 8 and 10 of the said Act, 1975 to urge that exclusive jurisdiction lies with the Chairman and that the Civil Court had no jurisdiction. According to him even on plain reading of PTD the property was an Evacuee Trust Property.
I have gone through the copies of the records. To my mind both the learned Courts below have very correctly interpretted Sections 8 and 10 of the said Act, 1975 as also Section 14 thereof barring the jurisdiction of Civil Court. Now admittedly the PTD was issued in 1976 i.e. at a point of time after June, 1968 mentioned in Section 10(1)(b) of the said Act. The question as to the nature of the property is of-course, to be decided by the said Chairman subject to exercise of revisional powers by the Federal Government.
Now I have examined the PTD. It is Ex.P.1 in C.R. No. 458/91 and I find that the evacuee owner is mentioned as "Gurdawara Siri Gura Singh Sabba". Learned Courts below have acted in perfect accord with the law declared by the Hon'ble Supreme Court of Pakistan in cases titled "Evacuee Trust Property Board through Assistant Director vs. Muhammad Siddique alias Bandoo and others" (1995 SCMR 1748) and "Evacuee Trust Property Board vs. Mst. Zakia Begum and others" (1992 SCMR 1313).
Having thus examined the records, I do not find any grounds being made out for interference with the impugned judgments and decrees within the meaning of Section 115 CPC. Both the C.Rs are dismissed with no orders as to costs.
(Fozia Fazal) Revisions dismissed
PLJ 2006 Lahore 1299 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
ALLAH BAKHSH KHAN--Petitioner
versus
ABDUR REHMAN and 8 others--Respondents
C.R. No. 256-D of 1992, heard on 14.2.2006.
Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XLVIII of 1958)--
----S. 30--Transfer of Property Act, (IV of 1882), S. 106--Petitioner was in possession and was entitled to a notice--Determination--In absence of a notice there was no question of payment of rent--Plea was not taken in written statement that the shop was located in an urban area or that the Court had no jurisdiction--No foundation had been laid for determining the question of law. [P. 1300] A & C
Transfer of Property Act, 1882 (IV of 1882)--
----S. 106--Notice had not been served and the suit could not have been filed without complying with terms of the provisions of law--No misreading of evidence on record was pointed out--Revision dismissed. [Pp. 1300 & 1301] B & D
Malik Mumtaz Akhtar, Advocate for Petitioner.
Mr. Javed Ahmad Khan, Advocate for Respondents.
Date of hearing: 14.2.2006.
Judgment
On 19.9.1984 the respondents filed a suit against the petitioner. In the plaint, it was stated that the suit shop, mentioned in the plaint, was transferred to Jewan Khan, the predecessor-in-interest of the respondents as a result of auction conducted by the Central Government. The petitioner is occupying the shop as a tenant. He is not paying the rent. It was also stated that the shop is required for personal use and occupation. A notice was issued on 14.3.1983 but the shop has not been vacated. The rent was claimed at the rate of Rs. 100/- per month. A decree for possession by ejectment was accordingly sought. In the written statement, the petitioner objected that a notice under Section 106 of the Transfer of Property Act, 1882, has not been served. Then, it was urged that he is in possession since before the year 1958 and is entitled to a notice under Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. On merits, it was stated that he is in possession since 1947 and after the transfer of the shop, he has become a tenant. According to him, in the absence of a notice, there is no question of payment of rent. It may be noted that this written statement was filed on 5.11.1985. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit vide judgment and decree dated 8.4.1991. Learned District Judge, D.G. Khan, dismissed the first appeal of the petitioner on 26.4.1992.
Learned counsel for the petitioner contends that the shop was located in an urban area and a Civil Court has no jurisdiction. Further contention is that a notice under Section 106 of the Transfer of Property Act, 1882, had not been served and the suit could not have been filed without complying with the terms of the said provision of law. Also contends that evidence on record has been mis-read. The learned counsel for the respondents, on the other hand, supports the impugned judgment and decree.
I have gone through the copies of the records. I have already noted above the contents of the pleadings of the parties. Now the shop is stated to be located in Abadi of Wahova. It is further stated in the body of the plaint in Para-6 that the shop is located in a rural area. There is no plea in the written statement at all that the shop is located in an urban area or that the Court has no jurisdiction on the said ground. Although learned counsel has vehemently urged that this is a question of law and can be raised at any time yet I find that no foundation has been laid for determining the said question of law either in the plaint or in the course of evidence. Needless to state that apart from the absence of plea the petitioner did not at all state that the shop is located in an urban area in the course of his statement as DW-3. The said contention, therefore, is without any force. So far as the question of service of notice under Section 106 of the Transfer of Property, 1882 is concerned, the learned Courts below have very rightly relied upon the case of Muhammad Siddique v. Barkat Ali (PLD 1981 Lahore 615) holding that landlord cannot be non-suited for non-service of said notice. The view has further been affirmed by the Hon'ble Supreme Court of Pakistan in the case of Barkat Ullah Khan v. Abdul Hamid (1981 SCMR 1200). Nothing, therefore, turns on the said plea. No mis-reading of the evidence on record has been pointed out. There is no denial of the title of the respondents and the fact that the petitioner is occupying the shop as a tenant. The civil revision is wholly frivolous and is dismissed with costs throughout.
(Fozia Fazal) Revision dismissed.
PLJ 2006 Lahore 1301
Present: Muhammad Muzammal Khan, J.
KHURSHID BIBI--Petitioner
versus
SHAHBAZ ALI--Respondent
C.R. No. 53 of 2006, decided on 15.5.2006.
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24--Constitution of Pakistan, 1973, Art. 199--Civil Procedure Code (V of 1908), S. 148--Extension of time by Court--Held: Extension of time fixed by the legislature would not only negate the purpose of the law makers but would also invite complications and expansion of litigation--If it is held for the sake of assumption that extension of time of even a day, on what ever ground may be, is permissible then there will no end because if a Court can grant extension of one day then it can also grant such extension of even a year and so on, on forth--Revision dismissed. [P. 1304] A
Sheikh Naveed Shaharyar, Advocate for Petitioner.
Mr. Allah Wasaya Malik, Advocate for Respondent.
Date of hearing: 15.5.2006.
Order
Instant revision petition assailed the judgments/decrees dated 3.9.2005 and 31.10.2005 passed by the learned Civil Judge and the learned Additional District Judge whereby on account of non-deposit of "Zar-e-Soam", petitioner's suit and appeal were dismissed, respectively.
Precisely, relevant facts are that petitioner filed a suit for possession through pre-emption against the sale in favour of the respondent through Mutation No. 7809 dated 25.11.2004. She pleaded knowledge of sale on 27.11.2004 at 12.00 noon through Ashiq Hussain son of Chiragh Alam in presence of Ghulam Hussain and Haji Muhammad Din, in her house when she instantly exclaimed her intention of pre-empting the sale being equipped with superior pre-emptive right qua the respondent. Petitioner pleaded that she being a co-sharer was "Shafi Sharik", whereas respondent was not equipped with any such qualification. She further asserted that in fact the suit land was sold for an amount of Rs. 4,10,000/- but in order to defeat her pre-emptive right, price was inflated to Rs. 18,00,000/- and the sale was affected through a guarded secret.
Petitioner filed her suit on 8.12.2004 and the learned trial Judge ordered for its registration, issuance of summons under registered cover acknowledgment due for 14.1.2004 and ordered for deposit of Rs. 6,00,000/- as "Zar-e-Soam" within 30 days. Petitioner deposited the 1/3rd amount of the sale price on 11.1.2004.
Respondent being defendant in the suit, contested the same by filing his written statement wherein he inter alia, pleaded that 1/3rd amount of the sale price has not been deposited according to the order dated 18.12.2004 and that the petitioner remained associated with the sale and did not perform "Talabs" in terms of Section 13 of the Punjab Pre-emption Act, 1991.
Petitioner on 15.6.2005 filed an application under Section 148 CPC for extension of time for deposit of "Zar-e-Soam", on the grounds that she being an old lady misunderstood the order dated 8.12.2004 and under the misconception that she could deposit the amount till 14.1.2005, deposited the same on 11.1.2005. This application was contested by the respondent by filing his written reply and the learned Civil Judge, cognizant of the suit, dismissed petitioner's application for extension of time besides dismissing his suit vide judgment/decree dated 3.9.2005.
Petitioner aggrieved of dismissal of her suit, filed an appeal before the learned Additional District Judge but remained unsuccessful as the same was dismissed on 31.10.2005. She thereafter filed instant revision petition and in response to notice by this Court, respondent has appeared and was represented through his counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, time for deposit of 1/3rd pre-emption money has been fixed by the statute itself viz. Section 24 of the Punjab Pre-emption Act, 1991 which reads as under:
"24. Plaintiff to deposit sale price of the property.--(1) In every suit for pre-emption, the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix:
Provided that such period shall not extend beyond thirty days of the filing of the suit:
Provided further that if no sale price is mentioned in the sale-deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one third of the probable value of the property.
(2) Where the plaintiff fails to make a deposit under sub-section (1) within the period fixed; by the Court, or withdraws the sum so deposited; by him, his suit shall be dismissed.
(3) Every sum deposited under sub-section (1) shall be available for the discharge of costs.
(4) The probable value fixed under sub-section (1) shall not affect the final determination of the price payable by the pre-emptor."
(underlining is mine, to highlight importance/spirit of the law).
"Section 148. Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this code, the Court may, in its discretion, from time to time enlarge such period, even though the period originally fixed or granted may have expired."
In enacting Punjab Pre-emption Act, 1991 on becoming the old pre-emption law unworkable in its entirety from 31.7.1986, the target date given by the Honourable Shariat Appellate Bench of the Supreme Court in Said Kamal Shah's case PLD 1986 SC 360 legislature attempted to bring existing law of pre-emption in conformity with the Injunctions of Islam, as set out in the Holy Qur'an and Sunnah. This law does not aim at to exclude, oust or discourage real pre-emptor from filing suit because it acknowledged the pre-emptor even with equal superior right qua the vendee, to share the sold property equally, as per its Section 20. Similarly, philosophy and purpose of requiring deposit of 1/3rd of sale price within specified period, appears to be, to test bona fides of the pre-emptor and to discourage only fake and frivolous litigants. Extension of time fixed by the legislature would not only negate the intent/purpose of the lawmakers but will also invite complications and expansion of litigation. Above all, if it is held, for the sake of assumption that extension of time of even a day, on what ever ground may be, is permissible then there will no end of it because if a Court can grant extension of one day then it can also grant such extension of even a year and so on, so forth.
My own earlier view in the case of Mst. Iqbal Bibi versus Allah Yar and 2 others (2004 YLR 1279) was that one-third of the sale price of the property was to be deposited in cash within the period fixed by the Court which could be extended to the maximum period of 30 days from the date of filing of the suit. This Court in another case of Muhammad Ismaeel versus Jameel ur Rehman and 6 others (1995 MLD 1011), relying on the judgment in the case of Awal Noor versus District Judge Karak and 8 others (1992 SCMR 746) concurred to the same view of time for deposit of one-third of pre-emption money, could not be extended by the Court beyond the period of 30 days from filing of the suit.
Reliance by the learned counsel for the petitioner on the judgments in the cases of Jamshaid Ali and 2 others versus Ghulam Hussain (1995 CLC 957) and Muhammad Ilyas and 4 others versus Munshi Khan (2003 CLC 1815) was misplaced, as both these judgments proceeded on altogether different facts. In both these precedent cases, pre-emptor did not deposit one-third of the sale price within the prescribed time, as no order to this effect was passed by the trial Court, on the first day of presentation of the plaint, whereas in the case in hand, there was no such lapse on the part of the trial Court who had required the petitioner to deposit the one-third amount of the sale price, with all clarity. Even otherwise ground of the petitioner of being old lady, is of no help to her because the order dated 8.12.2004 was passed in presence of her counsel who was not alleged to have misunderstood the same. Scan of record and impugned order revealed that the lis was correctly concluded by the two Courts below without committing any illegality/irregularity amenable to revisional jurisdiction of this Court.
For the reasons noted above, no case for interference in the revisional jurisdiction in terms of Section 115 CPC was made out; consequently, instant petition being devoid of any merit, is dismissed with no order to costs.
(Fozia Fazal) Petition dismissed.
PLJ 2006 Lahore 1305
Present: Muhammad Muzammal Khan, J.
GHULAM QADIR--Petitioner
versus
MUHAMMAD BAKHSH and 2 others--Respondents
C.R. No. 2419 of 2005, decided on 20.4.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115, O. XLI, R. 27--Production of additional evidence--Application could not have been dismissed in isolation from appeal--Petition was dismissed on technical ground of non availability of documents prayed to be produced in additional evidence, it was not decided on merit--While dismissing application the contents of the application were not bothered--Original documents sought to be produced by way of additional evidence were already on file but could not be tendered in evidence through oversight--Documents of different nature on the file one of those exhibited and the other remained out of sight--Held: Order passed was tainted with illegalities, and was not sustainable in law--Petition allowed. [Pp. 1306 & 1307] A & B
Mr. Ata ul Mohsan Lak, Advocate for Petitioner.
Mr. G.M. Sarwar, Advocate for Respondents Nos. 2 and 3.
Date of hearing : 20.4.2006.
Order
Instant civil revision assailed the judgment/order dated 14.7.2005 passed by the learned Additional District Judge Mandi Baha-ud-Din, whereby petitioner's application under Order XLI Rule 27 CPC was dismissed, pending his appeal.
Succinctly, relevant facts are that the petitioner filed a suit for possession through pre-emption being "Shafi Sharik", "Shafi Khalit" and "Shafi Jar" against the sale in favour of the respondents and at the close of the case the petitioner moved an application under Order XIII Rule 2 CPC before the trial Court for permission to produce the copies of "Fard Jamabandi" for the year 1991-92 and "Aks Shajra, Killa Bandi" pertaining to suit land of Square No. 130, by way of additional evidence. Ground in support of the prayer made, as that there was two copies of "Fard Jamabandi" on the file one related to Khata No. 328 whereas the other was about all the Khatas of the suit land and out of inadvertence, one of the Jamabandi, was tendered in evidence as Ex. P. 4 and the other which was most relevant to the controversy could not be exhibited. Similarly, there was two copies of "Aks Shajra", one of those was tendered in evidence as Ex. P. 8 and the other inspite of being on the file, could not be tendered in evidence through oversight. This application was dismissed by the learned Civil Judge on 13.7.2004.
Petitioner being aggrieved of the dismissal of his application for additional evidence by the trial Court, filed revision petition before the learned Additional District Judge but the same was not entertained on the ground that documents sought to be produced were not appended therewith, vide judgment dated 12.10.2004. Thereafter, petitioner's suit was dismissed by the trial Court vide judgment/decree-dated 1.11.2004.
Petitioner filed an appeal before the learned Additional District Judge Mandi Baha-ud-Din where along, he again moved an application under Order XLI Rule 27 CPC asserting verbatim the same ground as taken by him in his application before the trial Court. The learned Additional District Judge keeping the appeal of the petitioner pending dismissed his application under Order XLI Rule 27 of the CPC vide order-dated 14.7.2005. The petitioner, thereafter, filed instant revision petition and respondents in response to notice by this Court have appeared and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Under law application of the petitioner under Order XLI Rule 27 of the CPC could not have been dismissed in isolation from his appeal as this course was opposed to the spirit of the provisions of Order XLI Rule 27 CPC whereunder appellate Court while hearing appeal may need/feel necessity of documents sought to be produced for just/fair decision of the case. Though petitioner's revision petition was dismissed by the learned Additional District Judge on 12.10.2004 on technical ground of non availability of documents prayed to be produced in additional evidence and the same was not decided on merit, yet the learned Additional District Judge while dismissing the application in hand did not bother to look into the contents of the application. The petitioner had asserted that the original documents sought to be produced by way of additional evidence were already on the file but could not be tendered in evidence through oversight. There were two alike documents of different nature on the file and one of those was exhibited and the other remained out of sight. The impugned order revealed that the learned Civil Judge proceeded to dismiss the application of the petitioner on the assumption that the petitioner has not produced those documents at all, inspite of availing repeated opportunities in this behalf. Trial Court was of the view that since the petitioner did not produce these documents at relevant time, he was not entitled to the relief prayed but the record was otherwise, as noted above. Likewise the appellate Court incorrectly dismissed the application under Order XLI Rule 27 of the CPC on the ground that the order of the trial Court was maintained on revision vide order dated 12.10.2004, thus the same cannot be re-opened, being oblivious of the provisions of Section 105 CPC and the fact that the petitioner's revision petition was not decided on merits and was dismissed on technical ground. Learned counsel for the respondent confronted with this situation, expressed his willingness to the effect that this revision petition may be accepted and petitioner's application under Order XLI Rule 27 CPC may be directed to be decided afresh by the First Appellate Court alongwith the appeal of the petitioner.
For the reasons noted above, order 14.7.2005 passed by the learned Additional District Judge Mandi Baha-ud-Din being tainted with material illegalities/irregularities is not sustainable at law and consequently the same is set-aside by accepting the instant revision petition, with the result that petitioner's application under Order XLI Rule 27 of the CPC shall be deemed to be pending and shall be decided afresh alongwith his appeal by the learned Additional District Judge. There will be no order as to costs.
(Fozia Fazal) Case remanded.
PLJ 2006 Lahore 1307 (DB) [Multan Bench Multan]
Present: Maulvi Anwarul Haq and Muhammad Khalid Alvi, JJ.
QAMAR ABBAS--Appellant
versus
MARKET COMMITTEE QADIR PUR RAWAN DISTRICT MULTAN through its CHAIRMAN and 2 others--Respondents
I.C.A. No. 208 of 2005 in W.P. No. 2446 of 2005, heard on 13.3.2006.
(i) Punjab Civil Servants (Appointment & Conditions of Services) Rules, 1974--
----R. 17-A--Punjab Agricultural Produce Market (General) Rules, 1979, R. 70(6)--Applicability--There was no denial that the R. 17-A was not applicable to the employees of the respondents--Plea was taken that sufficient funds were not available to afford a post applied for civil servant was advised to apply where his father was worked for a number of years--He was not eligible for appointment due to overage. [P. 1308] A
(ii) Punjab Agricultural Produce Market (General) Rules, 1979--
-----R. 70(6)--Punjab Civil Servants (Appointment and Conditions of Services) Rules, 1974, R. 17-A--Rule of appointment to the employees of the respondents was not applicbale--Petition Allowed. [P. 1308] B
Makhdoom Syed Athar Hassan Bokhari, Advocate for Appellant.
Mr. Asiam Pervaiz Khan, Advocate for Respondent.
Date of hearing : 13.3.2006.
Judgment
Maulvi Anwar-ul-Haq, J.--This I.C.A. proceeds against the judgment dated 21.9.2005 whereby W.P. No. 2446 of 2005 filed by the appellant had been dismissed.
Learned counsel for the appellant contends that the impugned judgment fails to take notice of the pleadings on record which do not at all reflect a controversy as to the applicability of Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Learned counsel for the respondents, on the other hand, argues that the appellant was not eligible for appointment under the said Rule.
We have gone through the file. According to the contents of the writ petition, while employed as a Sub Inspector in the respondent-Market Committee, the father of the appellant filed on 16.5.1994. Thereafter, he stated that he has passed his Matriculation Examination and filed an application for appointment as a Supervisor under the aforesaid rule. Some correspondence took place and thereafter the proceedings stopped. Then, he referred to several letters (Annex: J, K and L) which contained interpretation of the said Rule by the Provincial Government as also the Director of Agriculture (Economics & Marketing), Punjab, Lahore. This latter letter is Annex: `K'. He accordingly prayed for a direction to the respondents to appoint him in accordance with the said Rule.
Now vide order dated 4.5.2005, comments were called for and these were filed. We have examined the said comments and we find that there is no denial that the said Rule is not applicable to the employees of the respondents. On the other hand, the plea taken was that since the sufficient funds were not available to afford a post applied for, the appellant was advised to apply in Market Committee, Multan, where his father had worked for a number of years. It was also stated that he is not eligible for appointment having crossed the maximum age.
Having, thus, examined the records, we find ourselves in agreement with the learned counsel for the appellant that no such controversy was there whereas the writ petition stands dismissed on the sole ground that the said Rule is not applicable. Apart from the said records, upon a plain reading of the Rule 70(6) of the Punjab Agricultural Produce Market (General) Rules, 1979, framed under the Punjab Agricultural Produce Markets Ordinance, 1978, read with the said Annexure `K', we are convinced that the said Rule does apply to the employees of the respondents.
The I.C.A. is accordingly allowed and the impugned order is set aside. The result would be that W.P. No. 2446/05 filed by the appellant shall be deemed to be pending and shall be decided afresh by a learned Single Judge of this Court. No orders as to costs.
(Fozia Fazal) I.C.A. allowed.
PLJ 2006 Lahore 1309
Present: Muhammad Muzammal Khan, J.
Mst. NUSRAT MALIK SALEEM--Petitioner
versus
FEDERATION OF PAKISTAN through SECRETARY MINISTRY OF LAW, JUSTICE & HUMAN RIGHTS DIVISION, ISLAMABAD and 3 others--Respondents
W.P. No. 1374 of 2006, decided on 18.4.2006.
Insurance Ordinance, 2000--
----S. 118--Constitution of Pakistan, 1973, Art. 199--Insurance policy--Entitlement of liquidated damages--Held: Claimant was entitled to liquidate damages, in case of delay in payment of insurance claim from the date of completion of case which could only be refused by promptly paying the claim or it is proved that delay occurred due to circumstances beyond he control of insurer--Death claims were paid after throwing them into litigation--Decision of Wafaqi Mohtasib was not complied instantly--Respondens could not show that delay to make death claims was beyond their control, whereas, the delay was deliberate and claims were paid after thrusting the petitioners into litigation--Respondent's conduct in payment was covered by the only exception that the delay was beyond their control, hence they were obliged to pay the claimed liquidated damages--Petition allowed. [Pp. 1310 & 1311] A & B
Mr. Liaqat Ali Butt, Advocate for Petitioner.
Mian Naseer Ahmad, Advocate for Respondents.
Date of hearing : 18.4.2006.
Order
This judgment proposes to decide two constitutional petitions, one in hand and the other W.P. 1375 of 2006, as both these petitions raise similar questions of law/facts, require interpretation of same provisions of law and are directed against the same set of respondents. Both the writ petitioners were declined payment of liquidated damages inspite of payment of respective death claims of their husbands which were payable on account of delay in payment of claims as per Section 118 of the Insurance Ordinance, 2000.
Succinctly, relevant facts are that husbands of the writ petitioners purchased Life Insurance Polices Bearing No. 5048, 25814-7 for an amount Rs. 5,00,000/- commencing from 22.12.1997 and Policy No. 50765 1935-9 for the value of Rs. 6,00,000/- commencing from 24.4.1994, respectively, in their life times. Husband of writ petitioner Mst. Nusrat Malik Saleem died on 22.6.2000, whereas husband of Mst. Rukhsana Kausar died on 9.3.1997 and both of them lodged their respective death claims, which were repudiated by Respondents Nos. 3 and 4. Writ petitioners were forced to approach the Wafaqi Mohtasib, who decided the matter in their favour on 8.9.2001 and 6.12.2000, respectively. Representations of the State Life Insurance Corporation were turned down by the President of Pakistan and consequently, death claims were paid to the writ petitioners but they were declined payment of liquidated damages, noted above, necessitating filing of petitions under decision. Respondents Nos. 3 and 4 who are the real contestants, in response to notice by this Court appeared and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, both the writ petitioners have been paid the death claims against the Insurance Policies purchased by their husbands and now question which hinges for determination is, as to whether Respondents Nos. 3 and 4 are also liable to pay liquidated damages. Relevant provisions of law applicable are contained in Section 118 of the Insurance Ordinance, 2000 which reads as under:
"110. Payment of liquidated damages on late settlement of claims--(1) It shall be an implied term of every contract of insurance that where payment on a policy issued by an insurer becomes due and the person entitled thereto has complied with all the requirements, including the filing of complete papers, for claiming the payment, the insurer shall, if he fails to make the payment within a period of ninety days from the date on which the payment becomes due or the date on which the claimant complies with the requirements, whichever is later, pay as liquidated damages a sum calculated in the manner as specified in sub-section (2) on the amount so payable unless he proves that such failure was due to circumstances beyond his control."
Minute scrutiny of the above-reproduced provision of law clearly demonstrated that claimant under an insurance policy is entitled to liquidate damages, in case of delay in payment of insurance claim, from the date of completion of case which could only be refused by promptly paying the claim or it is proved that delay occurred due to circumstances beyond the control of insurer. In the case in hand, death claims of both the writ petitioners were paid after throwing them into litigation. Record revealed that decision of the Wafaqi Mohtasib was not complied instantly and the Respondents Nos. 3 and 4 opted to make representation to President of Pakistan, which was declined. The objections on the basis of which repudiation was done by the respondent-Corporation, were thrashed and turned down by the Wafaqi Mohtasib while deciding the controversy in favour of the writ petitioners, after payment of death claims to the writ petitioner. Respondents remained un-successful in the representation before the President and controversy inter parties to that extent has come to an end whereafter the provisions of Section 118 of the Ordinance (Ibid) for payment of liquidated damages equivalent to sum calculated in the manner specified in its sub-section (2) were to be complied because the said respondents could not show that failure delay to make death claims was beyond their control whereas, the delay was deliberate and the claims were paid after thrusting the petitioners into litigation. In the peculiar circumstances of the case, Respondents Nos. 3 and 4 failed to demonstrate that their conduct in payment of petitioner's death claims was covered by the only exception created by above referred provision of law i.e. the delay was beyond their control, hence they were obliged to pay the claimed liquidated damages as per Section 118(2) of the Insurance Ordinance, 2000.
For the reasons noted above, Respondents Nos. 3 and 4 being bound to pay liquidated damages to the writ petitioners, did discharge their statutory commitments, hence, both these petitions are accepted and the Respondents Nos. 3 and 4 are directed to pay the liquidated damages, according to law within a period of three months. There will be no order as to costs.
(Fozia Fazal) Petitions accepted
PLJ 2006 Lahore 1311 (DB)
Present: Mian Hamid Farooq & Syed Hamid Ali Shah, JJ.
M/s. LIKE SPORTS, SIALKOT and others--Appellants
versus
M/s. ALLIED BANK OF PAKISTAN LIMITED, HEAD OFFICE, LAHORE--Respondent
R.F.A. No. 19 of 1999, heard on 26.7.2006.
(i) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (XLV of 1997)--
----S. 21--Civil Procedure Code (V of 1908) O. XX, R, 13--Suit for recovery--Credit facility--Application for leave to defend suit, rejected--Ex-parte decree--Assailed--Grounds of--Plaint did not disclose details of any transaction nor the copies of charge documents were attached therewith--Appellant cannot be saddled with a colossal liability on the basis of sketchy, incomplete and untrust worthy statements of accounts--Respondent bank was entitled to claim lawful outstanding amount from the loanee--Bank cannot be allowed to recover the amounts from a customer at its own whims on the basis of conjuncture and which is not at all due--Actual outstanding amounts were to be recovered but a customer should not be sequeezed and pushed in a blind corner by a financial institution. [Pp. 1313 & 1314] A & B
(ii) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (XV of 1997)--
----S. 21--Civil Procedure Code (V of 1908), S. 27--Suit for recovery--Summons--Application for leave to defend the suit, rejected and assailed--Determination--Plea taken therein, mark-up agreement was not placed on record, statement of accounts bears unauthorized entries and shows over charging of mark-up amounts, hence suit was not competent--High Court granted leave to defend the suit only to determine the "amount due" and "lawful amount" which was recoverable from the loanee--Interest of justice would adequately be met if condition for cash deposit was attached with the leave--Appeal was decided with certain terms--Order accordingly. [Pp. 1314 & 1315] C & D
Mr. Shahid Ikram Siddiqui, Advocate for Appellants.
Mirza Muzaffar Ahmad, Advocate for Respondent.
Date of haring : 26.7.2006.
Judgment
Mian Hamid Farooq, J.--The appellants/judgment debtors, through the present appeal, have called in question judgment and decree dated 10.12.98, whereby the learned Judge Banking Court, after finding that the appellants failed to disclose any genuine and reasonable defence in their leave application, rejected their leave application and consequently, after deducting a sum of Rs. 1,00,000/-, passed a decree for the recovery of Rs. 46,74,636/61, with future mark up and costs, against the appellants jointly and severally.
The respondent Bank filed the suit for recovery of Rs. 47,74,636/61, against the appellants, before the learned Judge Banking Court, inter alia, pleading that the Appellant No. 1 was allowed credit facility in form of FAPC-II to the extent of Rs. 4.100 (M), against the securities of hypothecation of stocks in trade and equitable/registered mortgage of properties; the appellants executed all the relevant documents in favour of the respondent bank; the credit facility was availed; subsequently, the appellants committed default in fulfilling their contractual obligations and the Bank was constrained to file the suit for recovery. The respondent bank, while relying upon the documents and statement of accounts, claimed the suit amount together with liquidated damages at the rate of 20%. The appellants, on 20.11.97, in response to the summons issued to them, as required under the law, filed the application seeking leave to defend the suit, asserting therein that the suit amount in the statement of accounts does not reflect the actual "amount due" recoverable from the Defendant No. 1; illegal amounts have been added as mark up; the statement of accounts is not in accordance with law and that the plaint does not disclose details of any transaction. It was further pleaded that the respondent bank did not attach copies of charge documents including I.B. 6 and I.B. 29. The leave application was opposed by the respondent bank through its reply, which was accompanied by photocopies of all the documents. The learned Banking Court, after hearing the parties, found that the appellants failed to raise any bona fide dispute, thus, proceeded to dismiss their leave application and consequent thereto, after deducting a sum of Rs. 1,00,000/-, deposited by the appellants, passed a decree for the recovery of Rs. 46,74,636/61 with costs and future mark up against all the appellants, jointly and severally, vide impugned judgment and decree dated 10.12.98, hence the present appeal.
Learned counsel for the appellants contends that the respondent bank failed to place on record mark up agreement, which is the most crucial document in Islamic mode of financing, therefore, the suit against the appellants was not competent. He further submits that the statement of accounts, which was the sole basis for passing a decree against the appellants, is sketchy, bears unauthorized entries and shows over charging of mark up amounts and, thus, is unreliable and cannot be made basis for the passing of the decree. He has relied upon Messrs C.M. Textile Mills (Pvt.) Limited through Chairman and 5 others vs. Investment Corporation of Pakistan (2004 CLD 587). Conversely, the learned counsel for the respondent states that certain documents were annexed with the plaint, however copies of the documents, asked for by the appellants in their leave application, were submitted alongwith the reply to the application. He adds that the decree was rightly passed on the basis of statement of accounts.
We have heard the learned counsel and examined the summoned record. We find from the record that respondent bank did file photocopies of certain documents together with the reply to appellants' leave application, which includes the copy of mark up agreement, thus, it cannot be argued that suit was decreed in the absence of mark up agreement. Contention of the learned counsel is repelled.
As regards the other contention, raised by the learned counsel for the appellants, we find that the same, of course, has some substance. The learned counsel for the appellants is right in pointing out that the statement of accounts, furnished by the respondent bank in support of its claim, bears unauthorized entries, inasmuch as mark up has incorrectly been charged. Even the entries in the computerized statement of accounts do not show the details of the amount transferred and to which account and for what purpose the amounts from the account of Appellant No. 1 were transferred. We are of the view that the appellants cannot be saddled with such a colossal liability on the basis of sketchy, incomplete and untrustworthy statement of accounts, furnished by the appellants. The said statement of accounts cannot be said to be prima facie proof of the appellants liabilities under any stretch of imagination. It is true that the respondent bank is entitled to claim lawful outstanding amount from the appellants, but it is equally true that the Bank cannot be allowed to recover the amounts from a customer at its own whims, on the basis of conjuncture and which is not all "due". Of course actual outstanding amounts are to be recovered, but a customer should not be squeezed and pushed in a blind corner by a financial institution. The appellants in para 10 of their leave application have admitted that they are ready to "pay due and lawful amount determined after rendition of accounts and filing of correct statement of accounts by the plaintiff bank in easy installments extended over a period of two years." The learned Banking Court has mainly relied upon the said para of leave application to state that "they would pay the outstanding amount in installments within two years" but strangely enough, it skipped over the crucial aspect of the said para, wherein, the appellants showed their willingness to pay "amount due" and "lawful amount".
In view whereof, we are persuaded to grant leave to defend the suit to the appellants only to determine the "amount due" and "lawful amount" recoverable from the appellants, however, interest of justice would adequately be met if some condition for cash deposit is attached with the said leave. At this stage, learned counsel for the appellants when asked to deposit, at least, half of the decretal amount, states that the appellants have already deposited a sum of Rs. 10,00,000/-, as ordered by this Court, and that they will further deposit a sum of Rs. 15,00,000/-, provided a period of two months is allowed to them.
In the above backdrop, the appeal is decided in the following terms:--
(i) The appeal is partly allowed and the impugned judgment and decree dated 10.12.98 is set aside.
(ii) The appellants are granted leave to defend the suit only on the question as to whether the suit amount is "due" and legally recoverable from the appellants subject to deposit of Rs. 25,00,000/-, in cash, by the appellants with the respondent bank within a period of two months from today.
(iii) The appellants had already deposited a sum of Rs. 10,00,000/- with the respondent bank (which finds mention in the interim order dated 9.7.99 passed by this Court), therefore, now the appellants shall only deposit a sum of Rs. 15,00,000/-, making total deposit of Rs. 25,00,000/-, within a period of two months.
(iv) If the appellants deposit the said amount within the period stipulated in para (iii) above, the learned Banking Court shall decide as to whether the suit amount is "legally due" and "recoverable" from the appellants after recording evidence of the parties, if so they choose, and of course in accordance with law.
(v) In case the appellants finally succeed in the suit, subject to decisions of appeals, if filed, the respondent bank shall refund the amount so deposited alongwith accrued profit to the appellants.
(vi) If the appellants fail to deposit the amount of Rs. 15,00,000/-, as noted above, leave granted to them shall be deemed to be rescinded and recalled and needless to add that law will take its own course and in that case amount of Rs. 10,00,000/- already deposited by the appellants, shall be adjusted towards the satisfaction of decretal amount.
(vii) No order as to costs.
(Sh. Zulfiqar Ahmed) Order accordingly.
PLJ 2006 Lahore 1315 (DB)
Present: Mian Hamid Farooq & Syed Hamid Ali Shah, JJ.
M/s. OVERSEAS BLUE STAR GHEE MILLS LIMITED, BAHWALPUR through its Chief Executive and others--Appellants
versus
UNITED BANK LIMITED, HEAD OFFICE KARACHI and others--Respondents
RFA No. 639 of 2002 & C.M. No. 420-C of 2006, decided on 6.7.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Suit for recovery was decreed--Judgment and decree assailed of dispute amicably during the Court proceedings--Appeal disposed of decided on the basis of compromise--Application u/S. 12(2) CPC--Grant of loans, execution of documents and existence of valid mortgage in favour of bank was neither disputed nor denied--Decree could not be said to have been obtained through fraud and misrepresentation, merely on the ground that a third party had a valid claim against the judgment debtors--Decree can be set aside u/S. 12(2) CPC when it is proved that the decree holder has misstated facts or concealed facts or elements of fraud and misrepresentation was involved. [P. 1317] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 73--Application for sale of assets--Recovery of state dues and impleadment of custom department as a party--No appeal was filed against the judgment and decree nor any cross objection was filed--Moreover, the application was filed after the lapse of more than 5« years--Such application was not competent. [P. 1317] B
Mr. Izhar-ul-Haq Sheikh, Advocate for Appellant.
Nemo for Respondent.
Date of hearing: 8.3.2006.
Judgment
Syed Hamid Ali Shah, J.--Brief facts giving rise to this application are that United Bank Ltd. filed a suit for recovery of Rs. 9,46,39,327.96/- against the appellant and Respondents Nos. 2 to 9, (COS. 03 of 1997) before Bahawalpur Bench of this Court. The suit was decreed vide judgment and decree dated 13.5.2002. Appellant i.e. M/s. Overseas Blue Star Ghee Mills, assailed the decree in Regular First Appeal No. 639 of 2002, in this Court. During the proceedings parties settled their dispute amicably, UBL agreed to accept Rs. 18.688 million as full and final settlement of liabilities of appellant. While placing the letter dated 27.5.2004 (Mark A), learned counsel for the parties jointly requested for disposal of appeal on the basis of amicable settlement, conveyed through letter dated 27.5.2004. The appeal was disposed of through order dated 14.3.2005 by this Court, on the basis of Mark A, acceding to joint request of both the parties.
Collector of Customs Multan, through instance C.M. under Section 12(2) of C.P.C., seeks setting aside order dated 14.3.2005 whereby the appeal was disposed of/decided on the basis of compromise. Applicant claims that an amount of Rs. 1,68,31,043/- is recoverable as custom duty, Rs. 93,50,341/- as penal surcharge, Rs. 1,10,000/- as personal penalty and Rs. 5,00,000/- as redemption fine, making total claim of applicant to the tune of Rs. 2,66,91,384/-. It is contended that an application under Section 73(3) C.P.C. was filed by the applicant during pendency of suit on 3.5.2000, wherein prayer for sale of assets for recovery of state dues and for impleadment of Custom Department as a party, was made. Learned Court without deciding the application, proceeded to decree the suit. Learned counsel has argued that appellant wilfully absented which resulted into dismissal of leave application and consequently the suit was decreed. The appeal was filed and compromise was effected between the parties to oust the applicant, resultantly state dues remained unpaid. Learned counsel has referred to the leave grant order dated 19.6.2002 passed in CP. No. 2838-L/2001 to contend that claim of Custom Department is preferential right and such recoveries involve satisfaction of public revenue, required under law to be given preference over other creditors. Learned counsel then referred to the case of "Saiyed Abu-Miyan versus Haji Abdul Ghani and others" (PLD 1974 Karachi 39) to contend that sale proceeds deposited in the Court belonging to the judgment debtor are lying for the purpose of paying it to the persons entitled to it and not only to the decree holder. He has further submitted that arrears of custom department have priority over other debts.
Heard learned counsel for the applicant and perused record.
The grant of loan, execution of documents and existence of valid mortgage in favour of the respondent bank is neither disputed nor denied. Respondent bank has approached this Court, in its original banking jurisdiction, for the recovery of its dues. The Court decreed the suit, according to provisions of law. Plaintiff (bank) neither misstated any fact nor concealed anything from Court to obtain impugned decree. The parties settled their dispute amicably whereby the decree holder, instead of pursuing recovery of total decretal amount, accepted an amount of Rs. 18.688 million as full and final settlement of its claim.
The appeal was disposed of in terms of compromise (Mark-A) between the parties. The decree cannot be said to have been obtained through fraud and misrepresentation, merely on the ground that a third party has also a valid claim against the judgment debtors. A decree can be aside under Section 12(2) C.P.C. when it is proved that decree holder has misstated facts or concealed facts or element of fraud and misrepresentation was involved.
Applicant had moved an application before the learned trial Court on 3.5.2000, which was not decided by learned trial Court. The grounds urged in this application are the same, which were raised before the learned trial Court. Trial Court decreed the suit on 13.5.2002. Applicant did not appeal against the decree nor any cross objections were filed. Applicant has moved this application after the lapse of more than 5« years, on the same grounds, which were already taken, in the application filed under Section 73 of the Code of Civil Procedure, 1908. Such application is not competent. Reference in this respect can be made to the case of "Mst. Hasina Khatoon and 2 others versus United Bank Limited and 6 others" (1993 MLD 1088). Applicant had the remedy of appeal to challenge the decree, which has not been availed. Application under Section 12(2) C.P.C. does not lie, which holding so we are fortified by the dictum of law laid down in the case of "Central Cotton Mills and another versus Atlas Bot Lease Co. Limited and 2 others" (1998 SCMR 2352). The leave grant order dated 19.6.2002 in C.P. No. 2838-L/2001 is on different premises. There are various classes of creditors of whom some have preferential right of payment in the course of winding up. In the instant case the judgment debtor is a company, which is not in the process of winding up but a going concern. Additionally, no sale proceeds are deposited with the Court to qualify the applicant to claim priority in ratable distribution of decree on the touchstone of law laid down in the case of Saiyed Abu-Miyan (supra).
For the foregoing this application has no force and is dismissed accordingly. No order as to costs.
(Sh. Zulfiqar Ahmad) Application dismissed.
PLJ 2006 Lahore 1318 (DB)
Present: Mian Saqib Nisar & Muhammad Sair Ali, JJ.
MUHAMMAD RAMZAN and others--Appellants
versus
SAIF NADEEM ELECTRO (Pvt.) Ltd. through its CHAIRMAN and others--Respondents
RFAs. Nos. 462 of 2004, 36 and 61 of 2005, heard on 19.4.2006.
(i) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 79 & 17(2)--Civil Procedure Code (V of 1908), S. 114--Suit for specific performance of agreement to sell--Execution and receipt of consideration--Suit decreed in favour of respondent with direction to return amount of advance consideration--Evidences--Cross-examination was declined--Payment of substantial amount of advance consideration could have been proved through by summoning the record of the bank but it was not done which omission has serious reflection upon the genuineness of the transaction--Admission of a co-defendent is not binding upon the others. [P. 1324] A
(ii) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 79 & 17(2)--Contract Act, (IX of 1872) Ss. 73 & 74--Suit for specific performance--Agreement to sell--Entitlement of compensation and damages for the amount--No such stipulation in this behalf in the agreement to sell--Appellant was failed to lead any evidence qua the terms in Ss. 73 & 74 of Contract Act. [P. 1325] B
(iii) Specific Relief Act, 1887 (I of 1887)--
----S. 27-B--Transfer of property Act (IV of 1882), S. 54--Suit for specific performance--Agreement to sell--Enforcement--Question or bona fide purchase--According to the provisions of Section 54 of Transfer Property Act--An agreement to sell does not create or purport to create any right or interest in an immovable property, except it confers upon the party the right to seek the specific enforcement--When appellant was not yet the owner of the property, no defence in terms of Section 27-B of Specific Relief Act, 1877 can have been set out. [P. 1325] C
(iv) Contract Act, 1872 (IX of 1872)--
----Ss. 73 & 174--Specific Relief Act (I of 1887), S. 27-B--Suit for specific performance--Enforcement of agreement to sell--Enterance into by his mother--Sale agreement between the adult and minor--Contract by a minor is not merely void but void ab initio and therefor, cannot be sued upon--Such contract has no existence in the eyes of law and entails no liability--If agreement has been made on behalf of minor by a close relative like mother, and prima facie is in his interest, such agreement shall not be void or invalid--Where the competency of mother to enter into transaction and enforceability thereof, it shall be dependent upon the guardianship certificate and permission of the Court, otherwise, it shall have no legal value--Appeals dismissed. [P. 1326] D, E & F
Mr. M. Mahmood, Advocate for Appellants.
Mr. Sajjad Mehmood Sheikh, Advocate for Respondent No. 1.
Sardar Nazar Hussain Dogar, Advocate for Respondents Nos. 2, 4, 5 and 6.
Syed Zafar Abbas Gillani, Advocate for Respondent No. 3.
Mr. Ijaz Feroz, Advocate for Respondent No. 1 in RFA. No. 36 and RFA No. 61 of 2005.
Date of hearing : 19.4.2006.
Judgment
Mian Saqib Nisar, J.--The dispute between the parties, relates to the land measuring 165 Kanals 1 Marla, as stated in the plaint of RFA No. 462/2004 but it is mentioned as 164 Kanals and 8 Marlas in RFA No. 62/2005; however, the suit land, which is situate in Mauza Janjatey Tehsil & District Lahore, has been fully described in the two plaints; the suit for the specific performance filed by Respondent No. 1 in RFA No. 62/2005, against Aziz Ahmad, etc. seeking the enforcement of the agreement to sell dated 7.1.1989, has been decreed, whereas, the suit brought by the appellant in this case against the respondents, to the extent of specific enforcement of their agreement dated 28.3.1990, has been disallowed, but he has been granted a decree against the vendors for the return of the earnest money amounting to Rs. 21,09, 270/-. All the parties aggrieved of this judgment and decrees dated 20.10.2004, have filed these appeals i.e. RFA No. 462/2004, RFA No. 31/2005, RFA No. 36/2005, RFA No. 61/2005 and RFA No. 62/2005, which are interconnected matters, and thus are being decided through this single judgment.
Brief facts of the case are, that on 30.4.1990, Respondent No. 1, brought a suit for the specific performance against Respondents Nos. 2 to 6, claiming that the said respondents being the owners of the suit land measuring 164 Kanals 8 Marlas, described in paragraph No. 3, of the plaint, have entered into a sale agreement dated 7.1.1989 Ex. P-4, with it for a total consideration of Rs. 60,62,352/- i.e. at the rate of Rs. 2,95,000/- per acre and had received a sum of Rs. 12 lac (twelve laces) as earnest/advance money. It is stated in the plaint that Respondent No. 3 (Defendant No. 2) was a minor at that time, thus the agreement on his behalf was entered into by Mst. Sardar Bibi, his real mother, with the stipulation to procure the permission for the sale from the guardian Court; three months period was fixed between the parties for the finalization of the transaction. It is averred by the plaintiff/Respondent No. 1, in his plaint, that the Respondents Nos. 2 to 6, failed to accomplish the deal and to execute the instrument of sale; hence, the suit was brought against them.
Matter was contested by Respondents Nos. 2 to 6, who admitted the valid execution of the agreement to sell and the receipt of the part consideration, but only to the extent of Rs. 5,00,000/- however, they denied the remaining consideration by averring that the defendants are illiterate persons and Respondent No. 1, has played a fraud upon them and procured their thumb impressions upon certain receipts to show the payment of Rs. 12,00,000/-. It is also their case that it is the plaintiff/Respondent No. 1, who failed to pay the balance amount of the consideration within the stipulated time, during which, they have never refused the finalization of the transaction, thus by imputing default to Respondent No. 1, it was asserted that the agreement Ex. P-4, automatically stands cancelled. In their written statement, Respondents Nos. 2 to 6, never disclosed that they have also entered into any other agreement to sell with any third party i.e. the appellant.
The above matter was yet pending, when on 7.1.1991, the appellant of this appeal brought a suit for the specific performance against Respondents Nos. 2 to 6, claiming that they through an agreement dated 28.3.1990 agreed to sell the same land (there is some difference in the total area as mentioned above) to him, at the rate of Rs. 4,25,000/- per acres and received an amount of Rs. 21,09,270/- as an advance/earnest money. He asserted that as per the agreement, the said respondents were bound to obtain the demarcation of the property, before the execution of the sale-deed and had to hand over the possession to the appellant, but they failed and surprisingly in breach of the above stipulation, the defendants/vendors through a legal notice dated 19.11.1990, sought the finalization of the deal within a period of seven days, which notice was replied, followed by the suit for the specific performance by the appellant. In this suit, Respondents Nos. 2 to 6, filed their written statement, in which the agreement to sell and the payment of advance consideration was admitted; however, the said respondents, again set out the defence that it is the plaintiff/appellant, who has failed to perform his part of the agreement. It may be pertinent to mention here that Respondent No. 1 (Saif Nadeem Electro Ltd.) filed an application under Order 1, Rule 10 CPC, to be impleaded as a party in this suit, which was allowed by the Court, vide order dated 29.7.1991 and the company was arrayed in the matter as Defendant No. 6, the said defendant filed its written statement, by setting out a clear and unequivocal defence that the agreement to sell allegedly entered into between the appellant and Respondents Nos. 2 to 6, is fraudulent and collusive, and the suit also suffers from the same vice. It may not be out of place to mention here that in the suit of the Respondent No. 1 (the first suit for the specific performance), the application of the appellant under Order 1, Rule 10 CPC for impleading him as a party, was rejected through the order dated 20.10.1993; but this order was not further challenged by the appellant. However, upon the application of either side, the two cases were transferred by the learned District Judge, to the same learned Civil Judge and were consolidated and tried together on the following issues:--
Whether the suit is not maintainable in its present form? OPD
Whether the plaintiff has not come to the Court with clean hands? OPD
Whether the conditions laid down in the agreement of sale were fraudulent? OPD
Whether only Rs. 5,00,000/- was paid as earnest money? OPD
Whether the plaintiff was willing to perform his part of contract? OPP
Whether the plaintiff has paid Rs. 12,00,000/- as earnest money? OPP
Whether the plaintiff is entitled to decree for specific performance of the agreement as prayed for? OPP
7.A Whether Muhammad Ramzan, plaintiff in Suit No. 9/1/91 titled "Muhammad Ramzan vs. Aziz Ahmad, etc. is entitled to specific performance of agreement to sell or in the alternative to recover Rs. 21,09,270/- and Rs. 2500,000/-, as damages?
Proceedings were conducted in the case of Respondent No. 1; and it examined PW-1 Muhammad Ashraf, the representative of National Bank of Pakistan, who has proved in the evidence the pay order Ex. P-1, Ex.P-2 and Ex. P-3, all dated 7.1.1989, envisaging the payment of Rs. 2,00,000/-, Rs. 2,50,000/- and Rs. 5,000,00/- respectively; PW-2 Muhammad Akhtar is the marginal witness of the agreement to sell dated 7.1.1989, Ex. P-4; PW-3 is Mushtaq Ahmed Butt, who is an advocate and has scribed the agreement to sell Ex. P-4; PW-4, Saif Ashfaq is the representative of the company, whereas, PW-5 Maqbool Ahmed is another marginal witness of Ex. P-4;. As against the above, the defendants of the case produced Manzoor Hussain (DW-1), Ashiq Ali (DW-2) and Aziz Ahmad, himself appeared as DW-3; they also tendered in evidence the documents i.e guardian certificate of Muhammad Siddique minor dated 23.5.1989 Ex. D-1, in favour of Mst. Sardar Bibi, his mother and the order of the guardian Judge dated 13.6.1989 Ex. D-2, permitting the sale of the property by the said guardian.
Muhammad Ramzan, the appellant in his suit examined, PW-6 Shahnawaz, the stamp vendor and the scribe of his agreement to sell dated 28.3.1990 Ex. PW-1/1; PW-7, Syed Hassan Mehmood Naqvi, is a Manager of Allied Commercial Cooperative Corporation Ltd, who claims to be the marginal witness of Ex. PW1/1; he has also testified about the payment of the earnest money of an amount of Rs. 21,9700 paid by Muhammad Ramzan to vendors Aziz Ahmed, etc; PW-8 Bilal Ahmed is an attorney of Muhammad Ramzan; PW-9 is Syed Jawad Haider Jhafari Advocate, who proved his reply to the legal notice of the Respondents Nos. 2 to 6, which was taken in evidence as Ex. PW-91/1.
Upon the conclusion of the trial, the learned Civil Judge, by giving findings upon Issues Nos. 1 to 7, in favour of Respondent No. 1, has decreed the suit, whereas, by deciding Issue No. 7-A against Muhammad Ramzan, has refused the specific enforcement of his agreement to sell, but has directed the vendors/Respondents Nos. 2 to 6 to refund/return the amount of Rs. 21,09,270/- to the appellant, which was received by them as the advance. However, the relief of the damages/compensation as claimed in the suit has been declined.
Aggrieved of the above, Muhammad Ramzan has brought the present appeal, Muhammad Siddique has filed two appeals i.e. RFA No. 31/2005 and RFA No. 36/2005, challenging both the decrees; similarly Aziz Ahmed has preferred appeal RFA No. 61/2005 and RFA No. 62/2005.
Learned counsel for the appellant contends that the agreement to sell dated 28.3.1990, as also the receipt of consideration of Rs. 21,09,270/-, has been admitted by Respondents Nos. 2 to 6, therefore, the appellant having paid such a substantial amount of money as the advance, was entitled to the grant of a decree in his favour; it is further stated that the appellant was unaware of any prior agreement to sell between Respondent No. 1 and Respondents Nos. 2 to 6, consequently such an agreement, could not be made the basis of refusing the relief of the specific performance to the appellant; the appellant for all intents and purposes, was the bona fide purchaser and his rights under the law should be protected by enforcing his agreement. It is also submitted that Respondent No. 1 failed to prove that he was ready and willing to perform his part of the agreement, inasmuch as, it failed to pay the balance consideration, within the stipulated time, therefore, the agreement of the said respondent automatically stood cancelled and his suit was thus liable to be dismissed. It is further urged that the trial Court was bound to grant the compensation to the appellant for the amount of Rs. 21,09,270/-, which has been utilized by Respondents Nos. 2 to 6, for such a long period of time.
Heard. The appellant in support of his case, has examined PW-6, Shahnawaz Bhatti, who claims to be the stamp vendor and the scribe of Ex. PW-1/1; however, this witness has not provided any proof of selling the paper or scribing the document on the date, as has been shown from the said instrument; he has not produced any record of the stamp vendor or the deed writer. When questioned in the cross-examination, he has answered:--
This is very significant answer, as he claiming to be the scribe of the document, but has no clue, as to where it was written; he has also not stated, if the thumb impressions upon the document were affixed by Respondents Nos. 2 to 6, in his presence. PW-7, Syed Hassan Mehmood Naqvi, who in his examination-in-chief, has stated that he was the Manager of the Bank Allied Commercial Co-operative Corporation Ltd. Ali Town Branch, and that the appellant in his presence has made the payment of an amount of Rs. 21 lac to Respondents Nos. 2 to 6 and that the vendor took away half of money and remaining half was deposited by them in their bank account in the said bank; he deposed that he is the marginal witness of the agreement to sell Ex. PW-1/1 and has identified his signature as Ex. PW-1/2. In the cross-examination, he deposed that he is the Transporter Stationed at Abbotabad; he concedes of having no knowledge about some earlier agreement to sell between Respondents Nos. 2 to 6 and Respondent No. 1; he was not a witness summoned through the process of the Court; he does not know, there Ex. PW-1/1 was scribed; in the examination-in-chief, he deposed that only the appellant and the vendors were present at the time of the execution of Ex. PW-1/1, but in the cross-examination, he contradicts the above, when stated that the deed writer and other marginal witnesses were also there; but Ex. PW-1/1 envisaged the presence of only one other witness and no one else; no documentary evidence through him, has been brought on the record about the withdrawal of Rs. 21,00,000/- from any bank account of the appellant and a part thereof deposited by the Respondents Nos. 2 to 6 in their account as stated by the witness. We are not much impressed with the testimony of PW-7, which in our view is not much confidence inspiring, which otherwise, has remained uncorroborated, as the other marginal witnesses were not examined; the appellant has not appeared as a witness in this matter, rather has examined PW-8, as his attorney; who in the opening part of his examination-in-chief deposed:--
he further states:--
he also deposed:--
In the cross-examination, this witness stated that he is the property dealer and is engaged in the sale/purchase of the properties and that Muhammad Ramzan, (the appellant) infact has purchased the property for his society. His above reproduced part of the examination-in-chief and what he mentioned in the cross-examination does not go in line with the appellant's case, set out in the plaint. It may be mentioned here that he is not the marginal witness of the agreement to sell dated 28.3.1990; PW-9 is Syed Jawad Haider Jafari, who only replied to the legal notice, which has been placed on the record as Ex.PW-9/1; PW-10, Muhammad Hanif, is again a property dealer, who stated that he had arranged the transaction between the appellant and Respondents Nos. 2 to 6; he however, is not a marginal witness of the agreement to sell and there is no independent proof on the record, if he was the go between the parties to Ex. PW-1/1.
From the above evidence, we are not convinced, if the appellant has been able to prove the agreement to sell in terms of Articles 79 and 17(2) of the Qanun-e-Shahadat Order, 1984, which they were obliged to prove through examining the two attesting witnesses; Muhammad Shafi, the other marginal witness of the instrument has not been examined for any valid reason. There is no independent proof, if such a substantial amount of advance consideration of Rs. 21,07,270/- was paid by the appellant to Respondents Nos. 2 to 6, this could have been easily done by the appellant through summoning the record of the bank, in which the transaction of payment is alleged to have taken place, but surprisingly this was not done, which omission to our mind has serious reflection upon the genuineness of the transaction. The argument that as Defendants Nos. 2 to 6, who are the executants of the agreement have admitted the same and the payment thereof as well, thus it was not required to examine the other marginal witness; the summoning/production of the record/registers of the stamp vendor and the scribe, or the bank record for the purposes of proving the advance payment, suffice it to say that the co-admission of a co-defendant is not binding upon the others; Respondent No. 1 in its written statement had disputed the genuineness of the said agreement and had imputed fraud and collusion between the appellant and Respondents Nos. 2 to 6; thus in this peculiar situation, it was incumbent upon the appellant to have proved the agreement in accordance with the mandatory provision of Article 79; besides, to have corroborated the proof through the summoning and production of the record of the stamp vendor, the deed writer and the bank documents of the payment of advance consideration, but this all is conspicuously missing in the case. Above all, PW-8, who is key witness of the appellant, has departed and deviated from the contents of the plaint; it is stated by him that he has entered into the agreement to sell with Respondents Nos. 2 to 6, whereas, this is not the case set out in the plaint of the appellant, resultantly, we are not convinced, if the appellant has proved his case about the execution of the agreement as against Respondent No. 1. However, as Respondents Nos. 2 to 6, have admitted the said document and also the receipt of payment of the advance money, such admission is binding upon them, therefore, the Court below has rightly directed in the decree for the return of the amount of earnest money received by them from the appellant.
As far as the argument that the appellant was entitled to the compensation and damages for the amount, which was given to Respondents Nos. 2 to 6, as an advance money, suffice it to say that there is no such stipulation in this behalf in the agreement to sell. Besides the appellant, has failed to lead any evidence about this plea, which he had to prove in terms of Sections 73 and 74 of the Contract Act, 1872.
For the question that the appellant is bona fide purchaser, suffice it to say that according to the provisions of Section 54 of the Transfer of Property Act, an agreement to sell does not create or purport to create any right or interest in an immovable property, except it confers upon a party the right to seek the specific enforcement thereof, but when the appellant was not yet the owner of the property, no defence in terms of Section 27-B of the Specific Relief Act, could have been set out. Besides, the appellant's claims that he was unaware of the agreement to sell between Respondent No. 1 and Respondents Nos. 2 to 6, has been set at naught by one of the defendants namely Aziz Ahmed, when appeared before the Court as DW-3 and clearly deposed that:--
this statement has not been subjected to cross-examination by the plaintiff and is enough to show that the appellant had the knowledge of the earlier agreement to sell and therefore, it was his responsibility to have made inquiries to find out, about the fate of the earlier agreement to sell.
In the light of what ever has been stated above, we do not find any merit in this appeal, which is hereby dismissed.
For the other two appeals filed by Muhammad Siddique, the only plea raised is that the was a minor, when the two agreements to sell were executed, therefore, such agreements are void. Admittedly, he was a minor at the relevant time and the agreement Ex. P-4, was entered on his behalf by his real mother; in the agreement, it is specifically stipulated that the mother shall obtain the guardianship certificate and the permission from the learned Guardian Judge for the sale of the minor's share in the joint suit property before the target date; these documents have been produced by the Respondents Nos. 2 to 6, themselves establishing that the mother had applied for the above purpose and she was appointed the guardian vide order Ex. D-1 dated 29.5.1989; thereafter, she also procured the permission for the sale of minor's share in the suit property, from the Court through order dated 16.11.1989, Ex. D-2. When specifically asked in the Court, learned counsel for Muhammad Siddique has categorically stated that this application for the permission u/S. 29 of the Guardians & Wards Act, 1890, was made pursuant to the agreement to sell Ex. P-4 and the agreement was mentioned in the application and the permission was accordingly sought and obtained on that account; he however, has argued that in view of the judgments reported as Ghulam Nabi vs. Faisal Naveed and 2 others (2003 SCMR 1794) and Hazrat Khan vs. N. Khalid Khan and others (1997 CLC 1765), any sale agreement between the minor without first obtaining the permission from the learned Guardian Judge is void; the above judgments have been considered but found distinguishable on their own facts. We are conscious of the legal position that a contract by a minor is not merely void but void ab initio and hence, cannot be sued upon. Such a contract has no existence in the eyes of law and entails no liability. But in the present case, it is not the minor, who has entered into the agreement himself, rather that was through his defecto guardian, the mother. The Agreement to sell is not the sale of an immovable property, rather it is only a promise to do so in future. Therefore, if the agreement has been made on behalf of the minor by a close relative, like the mother and prima facie is in the interest of the minor as in this case, because the other co-shares were selling their shares, and it was not in the benefit of the minor to retain his share out of the joint khata and there was a clear stipulation in the agreement that the permission shall be obtained from the Guardian Court before the sale is made; such agreement shall not be void or invalid, rather it shall be an agreement, where the competency of the mother to enter into the transaction and the enforceability thereof, shall be dependent upon the requisite guardianship certificate and the permission of the Court; if it is granted, the agreement becomes enforceable, but otherwise it shall have not legal value. In the instant case, we have noticed with care that there is a clear mention about the permission in the agreement Ex. P-4, it is on account of this agreement by a specific reference, that permission was obtained and granted by the Court, when the application was made by the mother and in the order Ex. D-2, it is clearly mentioned that the sale is in the benefit of the minor and is meant to safeguard his interest, resultantly in the above circumstances, the plea propounded by the appellant's counsel that the Ex. P-4, is void, has no force and is hereby repelled.
For the other two appeals filed by Aziz Ahmed, learned counsel for the appellant has not independently argued but has relied upon the submission of learned counsel for the appellant in RFA No. 462 of 2004, which pleas have already been answered.
In the light of above, we do not find any merits in all these appeals which are hereby dismissed.
(Sh. Zulfiqar Ahmad) Appeals dismissed.
PLJ 2006 Lahore 1327 (DB) [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq & Muhammad Nawaz Bhatti, JJ.
MUHAMMAD NAWAZ--Petitioner
versus
MUHAMMAD SHAFI and another--Respondents
R.A. No. 5-C of 1997 in CR No. 91-D of 1997, heard on 22.5.2006.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 115 & 96, O.XLI, R. 1--Hyper technical grounds--Objection of limitation--Objection raised in revision as to filing of certified copies of decree--Revision was filed after removing the objection by the office--Court dismissed the revision being barred by time--Held: Revision petition filed within time cannot be barred by time where it is re-filed after removing objections raised therein--Validity--Section 115 CPC empowers High Court to call for the records of any case decided--Proviso calls upon the applicant to furnish copies of the pleadings, documents and order of the sub-ordinate Court--No mandate for filing of the copy of decree--Objection which appears to be substantial was not warranted by law and further that it had come on record that decree sheet had not been prepared--Held: Application allowed. [Pp. 1328 & 1329] A
2000 SCMR 847, 1991 CLC 269, 1994 CLC 269, ref.
Mr. Athar Hassan Bokhari, Advocate for Petitioner.
Mian Mushtaq Ahmad, Advocate for Respondents.
Date of hearing : 22.5.2006.
Judgment
Maulvi Anwar-ul-Haq, J.--A suit filed by the petitioner on 13.5.1993 for possession of the suit property was resisted by the respondents by filing a written statement. Issues were framed on 8.5.1994. On 25.7.1994 his evidence was closed and the suit was dismissed by the learned trial Court. He filed a first appeal which was dismissed for non-filing of the process fee on 22.10.1995. He applied for a copy on 26.10.1995 which was prepared and delivered on 27.11.1995. C.R. No. 91-D/97 was filed in this Court on 21.1.1996. As per computation made by the office. The civil revision was filed on the 58th day of limitation. On 28.1.1996 some objections were raised by the office. The civil revision was re-filed after removing the objections on 18.7.1996. The learned counsel made a note that the file was received back on 2.6.1996. Again objections were raised that an application under Section 5 of the Limitation Act, 1908, be filed and further that objection at No. 5 of the Objection Memo has not been removed. The civil revision was re-filed on 29.12.1996. It came up before the Court on 12.2.1997 when for reasons recorded, pre-admission notice was issued. Thereafter, the case came up before the Court on 10.3.1997 and the learned Single Judge, in Chamber, of this Court, dismissed the civil revision as barred by time.
We have gone through the records, with the assistance of the learned counsel. Now according to the Objection Memo, certified copies of the decrees of the learned Court of appeal and the learned trial Court were not appended. We find that as per report on the copy form regarding Court of appeal, it was reported that since the case was dismissed for non-filing of the process fee, a decree sheet has not been prepared. Similar was the case with learned trial Court. Next objection was regarding the fresh power of attorney which was followed by an objection to the opening form and then signing of the index form and filing of better copies of pages 23 to 25 of the file. Upon a reading of the impugned order in juxta position to the facts glaring on the face of the record, we find that it suffers from an error apparent on the record inasmuch as the same has been passed without any reference to the records. A certified copy of an application stands appended with the civil revision wherein the petitioner had prayed before the learned trial Court that only his statement is to be recorded and that the order closing the evidence be re-called. No order appears to have been passed on this application. Similarly, the appeal was dismissed on a hyper technical ground. There is no cavil that the civil revision was filed in Court within the prescribed time.
"Learned counsel for respondents further agreed that under Section 115(2) C.P.C. it was obligatory upon petitioner to have furnished copies of pleadings, documents and order of the subordinate Court alongwith memo of petition and due to non-compliance of this provision will not be liable to be entertained and Court is competent to dismiss the same. So far as this legal provision as referred by the learned counsel is concerned, there is no doubt about it but with reference to proposition under discussion in the instant case, it is suffice to observed that if revision petition suffers from defects i.e. non-filing of pleadings etc. still it cannot be dismissed being barred by time and in such situation, at the best the petition could be treated as not maintainable. It is important to note that this Court had always emphasized for decision of cases on merits instead of disposing of the matters on hyper technical grounds."
The review application is accordingly allowed. The impugned order dated 10.3.1997 passed in Civil Revision No. 91-D/97 is set aside.
(Rao Farid-ul-Haque Khan) Application allowed.
PLJ 2006 Lahore 1329 [Bahawalpur Bench Bahawalpur]
Present: Muhammad Jehangir Arhsad, J.
AUQAF DEPARTMENT through ADMINISTRATOR AUQAF, BAHAWALPUR DIVISION BAHAWALPUR
and another--Petitioners
versus
MUHAMMAD SADIQ and 2 others--Respondents
C.R. No. 19-D of 2000/BWP, decided on 15.12.2005.
Punjab Waqaf Properties Ordinance, 1979 (IV of 1979)--
----S. 98 & Preamble--Bona fide occupation of property--Scope--Petitioner obtained leasehold rights in public auction and got possession through Auqaf Department--Validity--Tenancy rights would not fall on the grounds of cancellation of leasehold rights of respondent and his eviction was void--Held: Leasehold rights of respondent were neither terminated by the Auqaf Department for any fault of respondent nor was evicted at the instance of other respondent, rather respondent obtained leasehold rights in public auction and was inducted into possession by the Auqaf Department in accordance with law--Tenancy rights of petitioner would fall on the ground as cancellation of leasehold rights of respondent and his eviction from the disputed property void, is not the correct interpretation of law on the subject. [P. 1338] C
Specific Relief Act, 1877 (I of 1877)--
----Ss. 8, 9 & 42--Discretionary relief--Scope--Validity--Held: Relief under Sections 8, 9 or 42 of Specific Relief Act is discretionary and cannot be granted to a person either guilty of delay, slackness, estoppel or has approached the Court with unclean hands i.e. being defaulter as well as guilty of subletting the Waqaf Property. [P. 1338] D
West Pakistan Waqaf Properties (Administration) Rules, 1960--
----R. 7(3)--Punjab Waqaf Properties Ordinance, (IV of 1979), S. 9(2)--Audi Alteram Partem--Inapplicability of--Respondent was defaulter as well as guilty of subletting the property--Held: No room is left for High Court to hold that respondent was still entitled to notice within the meanings of S. 9 of the Ordinance, as even by issuance of notice the ultimate result would have been the same. [P. 1336] A
West Pakistan Waqaf Properties (Administration) Rules, 1960--
----R. 7(3) & Preamble--Punjab Waqaf Properties Ordinance, (IV of 1979), S. 9(2)--Respondent, a defaulter and guilty of subletting waqaf property--Non-service of notice on respondent before terminating his tenancy and eviction--Held: No fatal prejudice caused--Applicability--Non-service of notice on respondent before terminating his tenancy and eviction from the property in dispute, caused no fatal prejudice of First Appelltae Court holding him as defaulter and guilty of subletting Waqaf Property without permission by the competent authority. [P. 1338] B
1996 CLC 213; 1997 MLD 2444; 1982 CLC 1249; 1983 CLC 2872; 2000 SCMR 907; PLD 1991 SC 1029; 1995 MLD 45; PLD 1966 SC 639; 1972 SCMR 168; PLD 1963 SC 109; 1985 SCMR 9; PLD 2003 KR 237; 2000 CLC 1207 and NLR 1995 Civil 180 ref.
Mr. Aejaz Ahmad Ansari and M. Shamshir Iqbal Chughtai, Advocates for Petitioners.
Sardar Muhammad Hussain Khan, Advocate for Respondent No. 1.
Date of hearing: 9.12.2005.
Judgment
Through this single order, I propose to dispose of C.R. No. 19-D/2000 alongwith Cross-Objections No. 74/2000 and C.R. No. 11-D/2000 alongwith Cross-Objections No. 73/2000, as similar questions of law and facts are involved in all these matters and also because these petitions have been filed against the same judgment of the learned trial Court as well as of the learned Appellate Court.
The facts briefly giving rise to the institution of these petitions are that commercial property (Thalla No. 1) situated in the market of Jamia Masjid Sadiq, Bahawalpur was leased out to Muhammad Sadiq Respondent No. 1 by the Auqaf Department some twenty five years before the filing of the suit i.e. 23.4.1990 but later on he was ejected on 19.3.1987 (vide Ex.D/6) by the Auqaf Department for breach of leasehold rights. Muhammad Sadiq Plaintiff/Respondent No. 1 filed the present suit on 23.4.1990 seeking a declaration that he being tenant/lessee of the suit property under Auqaf, was entitled to have its possession restored as his ejectment from the said property was illegal, without lawful authority and also that suit property could not be further leased out to Muhammad Sajid Respondent No. 2 in C.R. No. 19-D/2000 & petitioner in C.R. No. 11-D/2000 (hereinafter to be referred as respondent/petitioner) and for mandatory injunction by way of direction to the petitioner for restoration of possession of the suit property. The suit was contested by the Auqaf Department present petitioner as well as Muhammad Sajid respondent/petitioner by way of filing separate written statements. The above said petitioners in both the Civil Revisions in their respective written statements, besides taking several preliminary objections, especially about the non-maintainability of the suit having not been instituted against competent persons within the meaning of Section 3(3) of the Punjab Waqaf Properties Ordinance, 1979 and also that Respondent No. 1 had no locus standi to file the suit on account of his ejectment from the suit property in a lawful manner. It was further alleged that Muhammad Sadiq Plaintiff/Respondent No. 1 was guilty of breach of leasehold rights, he was rightly dispossessed and the property in dispute was correctly leased out to Muhammad Sajid respondent/petitioner through open auction.
Keeping in view the divergent pleadings of the parties, the learned trial Court put the parties at trial after framing the following issues:-
ISSUES:-
Whether this Court lacks the jurisdiction to take cognizance of the matter in issue? OPD.
Whether the suit is not maintainable in view of the preliminary Objections Nos. 1 to 3 of the written statement filed on behalf of the Defendants Nos. 2 to 3? OPD.
Whether the plaintiff has no cause of action and locus standi to file the present suit and has not come with clean hands? OPD.
Whether the suit is time-barred? OPD.
Whether the plaintiff was in occupancy of disputed property under the Defendants Nos. 2 and 3 and he has forcibly and illegally ejected there-form on behalf of the defendants? If so, whether the plaintiff is entitled to decree as prayed for? OPP.
Whether the Defendant No. 1 is bon fide occupant of the disputed property as tenant? If so, its effect? OPD-1.
Whether the defendants are entitled to get the compensatory costs from the plaintiff under Section 35-A CPC? If so, to what extent? OPD.
Relief.
During trial, Muhammad Sadiq Plaintiff/Respondent No. 1 got examined one Khalil Ahmad PW-1, Fazal Elahi PW-2, Muhammad Hussain PW-3 and Muhammad Ashiq brother as his Attorney PW-4. By tendering documents Ex.P-1 to Ex.P-4 closed his evidence. On the other hand, Muhammad Sajid defendant/respondent/petitioner appeared himself as DW-1 and closed his case after producing documents Ex.D-1 to Ex.D-32. The remaining defendants i.e. Auqaf Department, etc. relied upon the evidence produced by Muhammad Sajid defendant. On conclusion of the trial, the learned trial Court vide judgment dated 10.12.1995 decreed the suit of Plaintiff/Respondent No. 1 and besides granting declaration sought for i.e. declaring the leasehold rights in favour of respondent/petitioner Muhammad Sajid through public auction as illegal, also directed delivery of possession by way of mandatory injunction to Plaintiff/Respondent No. 1 Muhammad Sadiq. Against the said judgment and decree of the learned trial Court dated 10.12.1995, the petitioner Auqaf Department as well as respondent Muhammad Sajid filed two separate appeals which were heard by a learned Additional District Judge, Hasilpur Camp at Bahawalpur and were dismissed on 5.10.1999. However, the learned Additional District Judge in paras 21 and 22 of the said judgment held Respondent No. 1 Muhammad Sadiq as defaulter from July, 1983 till his ejectment on 19.3.1987 and also guilty of subletting the property in question to one Usman Shah.
Against the above mentioned judgments and decrees of two Courts below, the Auqaf Department has filed the instant Civil Revision (C.R. No. 19-D/2000), whereas Muhammad Sajid, subsequently lessee, has filed the connected Civil Revision (C.R. No. 11-D/2000). Further Muhammad Sadiq Plaintiff/Respondent No. 1, feeling aggrieved of the above referred findings of the learned Appellate Court in Paras 21 and 22 of its judgment, has filed two separate Cross Objections Nos. 73/2000 and 74/2000 in respective Civil Revisions. As stated above, all these matters are being decided by means of this single judgment.
It has been argued by Mr. Shamshair Iqbal Chughtai, Advocate learned counsel for the petitioner in C.R. No. 19-D/2000 that per force of Rule 7 of West Pakistan Waqaf Properties (Administration) Rules, 1960, it is mandatory that lease must be in writing but in this case the respondents/plaintiffs have failed to produce any such lease. Further submits that under Section 9(2) of the Punjab Waqaf Properties Ordinance, 1979 Administrator Auqaf has got the power to terminate the lease or to resume the tenancy where he is satisfied that the lessee or the tenant of immovable property, owned by the Auqaf Department, has committed breach of lease or tenancy and that it is established from the record, as also held by the Additional District Judge in Para 23 of his judgment that respondent/plaintiff not only committed default in payment of the rent but also sublet the property in dispute without any permission from the competent authority. His further contention is that plaintiff/respondent filed the suit with unclean hands and that admittedly he was evicted from the property in dispute on 13.5.1984 but remained silent till 1990 i.e. filing of the suit. Further contends that respondent/plaintiff could not claim opportunity of hearing as he had no vested right in the property in dispute; that in terms of Section 3(3) of the Punjab Waqaf Properties Ordinance, 1979, the Chief Administrator Auqaf being a corporate body could only be sued in his corporate name and that the suit filed by the plaintiff/respondent against the Auqaf Department and District Manager Auqaf, Bahawalpur was not competently filed. Learned counsel finally argued that the suit filed by respondent/plaintiff was time barred under Article 14 of the Limitation Act having been filed beyond the period of one year of his eviction from the property in dispute.
Mr. Aejaz Ahmad Ansar, Advocate appearing on behalf of Muhammad Sajid petitioner in C.R. No. 11-D/2000 besides adopting arguments of Mr. Shamshair Iqbal Chughtai, Advocate, has further argued that tenancy in dispute being not perpetual in nature; after findings of Appellate Court holding Muhammad Sadiq a defaulter in payment of rent and guilty of subletting the property in dispute, no useful purpose would be served by giving plaintiff/respondent a notice and affording him opportunity of hearing. It is contended that if any illegality or irregularity was committed by Auqaf Department in cancelling the lease of plaintiff, the same was not due to any act or fault of Muhammad Sajid petitioner who obtained the property through open auction held on 31.5.1984 and to whom possession was delivered on 19.3.1987 in execution of order of the Administrator dated 1.1.1986, confirming auction in his favour and directing vacation of disputed property from unauthorized occupants and its delivery to Muhammad Sajid. Learned counsel argues that accordingly Muhammad Sajid is in occupation of suit property as lessee tenant of Auqaf Department but the learned two Courts below passed the impugned judgments and decrees by ignoring the chequered history of the case, conduct of plaintiff and nature of the tenancy granted by Auqaf Department earlier to plaintiff/respondent and now to Muhammad Sajid. Both the learned counsels in support of their above arguments have placed reliance on the following case law:
"Millac Pakistan (Pvt.) Ltd. versus Sindh Industrial Trading Estate Limited" (1996 CLC 213)
"Additional Commissioner-II, K. Division versus Shahid Raza and others" (1997 MLD 2444)
"Muhammad Hussain versus Akbar Hussain" (1982 CLC 1249)
"Nasir Mahmood versus Mustajabi Begum" (1983 CLC 2872)
"Abdul Haq Indhar and others versus Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others" (2000 SCMR 907)
"Abdul Qadir and others versus The Settlement Commissioner and others" (PLD 1991 SC 1029)
"Zarghun Shah versus Surgeon General and another" (PLD 1998 SC 540).
"Shahab ud Din and others versus Mst. Mariam Bibi and others" (1995 MLD 45)
"Anjuman-e-Ahmadiya, Sargodha versus The Deputy Commissioner, Sargodha and another" (PLD 1966 SC 639)
"Rehmat Ullah and another versus The Secretary, Evacuee Property Trust Board, Government of Pakistan, Lahore and 2 others" (1972 SCMR 168)
"The Majlis-i-Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur versus The Secretary to Government of West Pakistan, Communication and Works Department, Lahore" (PLD 1963 SC 109)
"Sardar Muhammad Aslam Sial and 3 others versus Government of Pakistan and 3 others" (1985 SCMR 9)
"Sharif Haroon versus Province of Sindh through Secretary to the Government of Sindh, Land Utilization Department and another" (PLD 2003 Kar. 237)
"Walidad versus Shah Din and another" (2000 CLC 1207)
"Chand Foundation versus Federation of Pakistan, etc." (NLR 1995 Civil 180)
The main crux of findings of two Courts below is that as the respondent was ejected from the demised property without issuing any notice to him, affording him opportunity of hearing and even without passing the formal order of cancellation/termination of his tenancy/lease in terms of Section 9 of the Punjab Waqaf Properties Ordinance, 1979, hence the act of Auqaf Department is without lawful authority and of no legal effect and thus respondent Muhammad Sadiq was entitled to restoration of his tenancy. Prima facie the findings of two Courts below to this extent do not suffer from any misreading or non-reading of evidence, especially when nothing has been produced by the Auqaf Department showing that leasehold rights of Respondent No. 1 were terminated after giving him notice as well as affording him opportunity of hearing. But the fact remains that Muhammad Sadiq respondent was evicted from the property in dispute on 19.3.1987 through proceedings conducted by the then City Magistrate, Bahawalpur vide Ex.D/6. According to Ex.D/6 at the time of ejectment proceedings the property in dispute was found in unauthorized possession of Muhammad Akhtar who without any hesitation or resistance peacefully handed over possession of the shop after removing his articles. These proceedings were conducted on 19.3.1987 but Muhammad Sadiq respondent never agitated against those proceedings and after remaining silent till institution of the suit on 22.4.1990 admitting in para-1 of the plaint that he was dispossessed from the property in dispute in the year 1988 and the possession of the said property was handed over to Muhammad Sajid Respondent No. 2 who was occupying the same since his ejectment upto the filing of the suit. This silence and inaction on the part of Respondent No. 1, is sufficient to hold that Respondent No. 1 accepted his eviction proceedings and admitted the subsequently delivery of possession of the disputed property to Muhammad Sajid respondent as valid and this is also sufficient to hold that Respondent No. 1 had surrendered his tenancy rights.
Another important aspect of the case is the findings recorded by the learned Appellate Court in Paras Nos. 21 and 22 of its judgment that Muhammad Sadiq respondent is a defaulter as well as guilty of subletting the property in dispute in violation of Rule 7(3) of the West Pakistan Waqaf Properties (Administration) Rules, 1960. Although, against the above findings of learned Appellate Court Muhammad Sadiq respondent has filed Cross-Objections Nos. 73 and 74 of 2000 yet Sardar Muhammad Hussain, Advocate appearing on behalf of said respondent during course of arguments has not been able to convince this Court that above findings of the learned Appellate Court to this extent, are not based on proper and correct appreciation of evidence on record. The learned Appellate Court while passing the said findings has come to the said conclusion by non-production of any receipt of payment of rent after June, 1983 or any other evidence to this effect and has also relied upon the evidence of PW-1 Khalil Ahmad and Muhammad Ashiq General Attorney of Muhammad Sadiq respondent as PW-4 admitting in cross-examination that Respondent No. 1 had inducted one Usman Shah in the shop in dispute. The learned Appellate Court while reaching to the said conclusion has also placed reliance and rightly so on ejectment proceedings conducted on 19.3.1987 vide Ex.D/6, according to which at the time of ejectment proceedings Muhammad Sadiq Respondent No. 1 was not in possession of the property in dispute and possession was taken over from some one else. The above-mentioned findings of the learned Appellate Court are not only based on proper appreciation of evidence but have also not been rebutted by the learned counsel for Respondent No. 1 during course of his arguments.
In the presence of above-mentioned evidence and the findings recorded by the learned Additional District Judge holding Respondent No. 1 as defaulter as well as guilty of subletting the property without permission of the Auqaf Department, no room is left for this Court to hold that Respondent No. 1 was still entitled to notice within the meanings of Section 9 of Punjab Waqaf Properties Ordinance, 1979, as even by issuance of notice the ultimate result would have been the same. Although, there is no cavil to the proposition that no body be condemned unheard and right of opportunity of hearing is basic right before any adverse action is taken against a person, yet as held by Hon'ble Supreme Court of Pakistan in case "Abdul Qadir and others versus The Settlement Commissioner and others" (PLD 1991 Supreme Court 1029), "issuance of notice or affording opportunity of hearing depends upon the facts and circumstances as to whether the observance of technical rule of audi alteram partem would serve the ends of justice or it would negate the ends of justice". It was further held by the Apex Court in the cited judgment that if forum before which the question of want of notice or affording opportunity of hearing is raised, is able to examine the merits, there would be nothing wrong in deciding the matter finally and refraining from multiplicity of proceedings, which as an end-product also causes injustice and misery in so far as delay, expense and anxiety are concerned. In almost similar circumstances, the Hon'ble Supreme Court in the case "Abdul Haque Indhar and others versus Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others" (2000 SCMR 907), after discussing the case law on the subject in detail held as under:
"There is no cavil with the proposition that the principle of natural justice enshrined in maxim "audi alteram partem" is always deemed to be embedded in the statute and even if there is no such specific or express provisions, it would be deemed to be one of the parts of State because no adverse action can be taken against a person without providing right of hearing to him. But at the same time this principle cannot be deemed to be of universal nature because before invoking/applying this principle one has to specify that the person against whom action is contemplated to be taken prima facie has a vested right to defend the action and in those cases where the claimant has no basis or entitlement in his favour he would not be entitled for protection of the principle of natural justice."
It was further held in the said judgment as under:
"It may be noted that his Lordship Mr. Justice Ajmal Mian (as he then was) has concluded the principle of "audi alteram partem" is to be read into the relevant provision if the action is to affect any vested right of a person. Further, adding to these reasons we would observe that if this rider is not palced for applying the principle of "audi alteram partem" then in certain cases where the law demands that action must be taken promptly shall defeat the ends of justice and there is very likelihood that the object is required to be achieved by an immediate action shall not be accomplished and in the meanwhile a person who has no vested right shall continue to enjoy the benefits of the deeds without any legal entitlement. It is also to be noted that it is high time to ensure that transaction between the individuals vis-a-vis the State are just, fair, open, honest and transparent. Therefore, action of individuals which is not honest and based on mala fide may not be allowed to exist merely for the reason that the principle of natural justice was violated. As in the instant case initially petitioners obtained a temporary lease of Forest through auction for a period of 5 years and immediately thereafter successfully made an attempt to get the period of lease extended by 30 years without auctioning the land after the expiry of period of 5 years in terms of Part II of the Martial Law Order 60 or under West Pakistan Delegation of Powers under Financial Rules because we are of the opinion that if for such long period the lease of the Forestry is auctioned it would have fetched high auction price for the Forest Department. But to deprive the State petitioners anyhow managed extension of lease in their favour through good offices of Chief Minister illegally. Therefore, such deeds on the part of the petitioners or the authority who granted the sanction cannot be allowed to exist on the strength of argument of the learned counsel for the petitioners that action against the petitioners have been taken in violation of principles of natural justice."
In the light of the law declared by the Hon'ble Supreme Court of Pakistan in the above referred two judgments, I am satisfied that non-service of notice on respondent before terminating his tenancy and eviction from the property in dispute, caused no fatal prejudice to him, especially in the presence of findings of the learned Additional District Judge holding him as defaulter and guilty of subletting Waqaf Property without permission by the competent authority. The findings of two Courts below on Issue No. 5 are not sustainable and same are accordingly set-aside. Since there is no cavil to the proposition that no person can be condemned unheard or without issuing any notice and affording opportunity of hearing, yet inapplicability of such principle to the facts and circumstances of the present case, in the light of above-mentioned judgments of the Hon'ble Supreme Court, has been approved, hence the case law cited on behalf of Muhammad Sadiq Respondent No. 1 need not be discussed in detail.
The principle applied by the two Courts below under Issue No. 6 against Sajid respondent/petitioner cannot be used against him as leasehold rights of Muhammad Sadiq were neither terminated by the Auqaf Department for any fault of Respondent No. 2 nor Sadiq respondent was evicted at the instance of Sajid Respondent No. 2, rather Sajid obtained leasehold rights in public auction and was inducted into possession by the Auqaf Department in accordance with law. To hold that tenancy rights of Sajid respondent would fall on the ground as the very cancellation of leasehold rights of Sadiq and his eviction from the disputed property was void, is not the correct interpretation of law on the subject. However, without going into further controversy, since I have upset the findings of two Courts below on Issue No. 6, therefore, I am also inclined to upset the findings of two Courts below on Issue No. 6.
Lastly, it would not be out of place to mention here that relief either under Sections 8, 9 or 42 of the Specific Relief Act is discretionary and cannot be granted to a person either guilty of delay, slackness, estoppel or has approached the Court with unclean hands i.e. being defaulter as well as guilty of subletting the Waqaf Property. Reliance to this effect is palced on "Municipal Committee, Jhang versus Muhammad Ramzan" (PLD 1978 Lahore 498) and "Sheikh Ghulam Ahmad and others versus Raja Muhammad Yusuf Khan and others" (PLD 1986 SC AJ&K 16). Since in the present case it is established that despite his ejectment from the property in dispute, Muhammad Sadiq Respondent No. 1 remained silent till 1988 and allowed Muhammad Sajid Respondent No. 2 to enjoy the possession over the disputed property peacefully after having been inducted by the Auqaf Department on 19.3.1987 vide Ex.D/6 and in the presence of expressed findings by the learned Additional District Judge holding him defaulter as well as guilty of subletting the property of Auqaf Department, I do not find any justification or sense in the findings of two Courts below granting a decree in favour of Muhammad Sadiq Respondent No. 1 for declaration and possession with mandatory injunction.
The upshot of above discussion is that C.R. No. 19-D/00 (Auqaf Department, etc. versus Muhammad Sadiq, etc.) and C.R. No. 11-D/2000 (Muhammad Sajid versus Muhammad Sadiq, etc.) are allowed and after setting aside the judgments and decrees of two Courts below, the suit filed by Muhammad Sadiq Respondent No. 1 is dismissed. For the same reasons, Cross-Objections Nos. 74 and 73 of 2000 filed by Muhammad Sadiq Respondent No. 1, are also rejected.
(Rao Farid-ul-Haque Khan) Petition allowed.
PLJ 2006 Lahore 1339 (DB)
Present: Ali Nawaz Chowhan and Syed Sakhi Hussain Bukhari, JJ.
Sh. KHALID MEHMOOD etc.--Petitioners
versus
NAB etc.--Respondents
W.P. No. 3334 of 2004, heard on 22.3.2006.
(i) National Accountability Bureau Ordinance, 1999 (XXIII of 1999)--
----S. 25 & Preamble--Constitution of Pakistan, 1973, Art. 199--Object and purpose of--NAB Law is new law which has adopted American concept of "plea bargain"--Not merely for punishing people with sentence--Validity--Aim of Ordinance, 1999 and provisions of Section 25 was not merely for punishing people with sentence therefore, recovery could be made and the Chairman NAB upon an offer being made voluntarily accepts the same and pecuniary loss is made good, the case ends and for it to proceed further has no moral justification in view of the practice of NAB and the intention and spirit of law. [P. 1343] A
(ii) National Accountability Bureau Ordinance, 1999 (XXIII of 1999)--
----S. 25--Constitution of Pakistan, 1973, Art. 199--Plea bargain can be entered into--Object--Object to make good loss--Validity--Plea bargain can be entered into by the holder of a public office or by any other person on his behalf--It can be entered into on behalf of other persons by any person who makes good such loss. [P. 1344] B
(iii) National Accountability Bureau Ordinance, 1999 (XXIII of 1999)--
----S. 25--Constitution of Pakistan, 1973, Art. 199--Authorizes of plea bargain implies discharge of a person from all his liability after the loss is made good--Validity--Once the agency authorizes plea bargain and the loss is made good, then agency has to follow what is prescribed by Section 25 of Ordinance, 1999 itself in the words, i.e. "discharge such person from all his liability in respect of the matter or transaction in issue" and cannot go any further. [P. 1344] C
(iv) National Accountability Bureau Ordinance, 1999 (XXIII of 1999)--
----S. 25 & Preamble--Loss made good by co-accused--Effect--Petitioner would be discharged of liability irrespective of the fact--Validity--Where the loss has been made good, intention of the law and its spirit would demand that a similar treatment be extended to the petitioner which was extended to co-accused who had been discharged of their liability after they paid the entire loss rather more irrespective of the fact--Petitioner did not enter into a "plea bargain"--Petition allowed. [P. 1344] D
Mr. Mujeeb-ur-Rehman, Advocate for Petitioner.
Mirza Idrees Baig, Advocate for NAB.
Date of hearing : 22.3.2006.
Judgment
Ali Nawaz Chowhan, J.--This judgment shall dispose of Writ Petition No. 3334 of 2004 and Writ Petition No. 2724 of 2004.
3 Abdus Saeed Khan, the present petitioner against them, however, has refused to enter into the plea bargain and has advanced the plea that nothing was due from him and there is no incriminating evidence standing against him. He has come forward for quashment of the proceedings.
Alongwith the petition for quashment of proceedings, he has filed Writ Petition No. 2724, asking for grant of bail.
This Committee had to purchase commodities meant for Railways. The allegation is that they bungled money during the purchases and were responsible for corruption and corruption practices.
Before the matter was entrusted to NAB, a fact finding Committee of Railways under the Efficiency and Disciplinary Rules conducted a comprehensive inquiry and has given it findings with respect to the allegations which stood against the members of the Committee alongwith others. The findings are reproduced below in extenso:--
"The Enquiry Committee based upon the facts of the case, defence by the accused, cross-examination by the Enquiry Committee and scrutiny of the relevant record concludes, that charge No. (1) is proved against accused officer on account of inefficiency and negligence as member of the Tender Committee. As far as financial loss to the State upto the extent of Rs. 6.161 million is concerned, this cannot be substituted though the loss has occurred. Charge No. (ii), Charge (iii) and Charge (iv) are not proved against the accused officer."
However, the Railways Authorities were dis-satisfied with the result and it is stated that probably they were more interested in the recovery of the loss and therefore, in a swift move the Secretary of the Board of the Pakistan Railways, Brig. (R) Muhammad Umer addressed a letter to the NAB asking for NAB's help in getting the required results.
A forwarding letter dated 6.12.2000 was addressed to NAB saying--
"From July 1998 to April 1999, the Zonal Manager/IBU Rawalpindi made procurement of material wroth Rs. 62.489 million during the period under investigation through 88 Purchase Orders for Engineering, Electrical and Civil Defence Departments beside purchase of certain Common User Items. It was reported that the purchases were made on exceptionally exorbitant rates and that prescribed procedures and principles were not observed in true spirit. It was reportedly alleged that the entire process i.e. release of funds from HQ Office, floating and acceptance of tenders as well as ultimate consumption of the material was based on consideration other than established norms/procedure and merits. To scrutinize the purchases so made, the General Manager, Pakistan Railways Lahore ordered fact finding enquiry.
According to Fact Finding Enquiry Report, all the purchases were made at an exorbitant rates causing an over all loss of Rs. 35.473 million. The subsequent departmental enquiry under Efficiency and Disciplinary Rules found the officers involved responsible on different counts. Pakistan Railways has on the basis of the fact finding report withheld the payment to the contractors amounting to Rs. 20.2 million which was contested by them with the Wafaqi Mohtasib, who gave his verdict in their favour. However, on appeal, the President of Pakistan has viewed that the case be contested in a Civil Court.
In view of the above the case be forwarded for investigation by NAB as the contractors have played in major role in embezzlement of huge amount in collusion with Railways employees and the Railways cannot recover the losses from the contractors due to legal implication."
So, NAB started its role thereafter and the Chairman authorized the investigation. The investigation implicated and involved the members of the erstwhile Purchase Committee alongwith others on grounds of corrupt practices.
It is stated that while those proceedings were going on, the other members of the Purchase Committee, namely, Khalid Mehmood DTO Railways, Muhammad Fayyaz Khan, Ex-Zonal Civil Engineer-I and Muhammad Aslam, ex-Accounts Officer alongwith others entered into plea bargain under the provisions of Section 25 of NAB Ordinance, 1999 and paid more than what the Railways had portrayed as its total losses allegedly caused by the present petitioner and the three members in terms of money.
In this connection a reference may be made to the following statements appearing Chairman's NAB Reference:--
"On receipt of complaint of the Secretary, Pakistan Railway Board that purchases were made on exceptionally exorbitant rates and in violation of prescribed procedure, on investigation was authorized. The I.O. NAB has submitted his report."
"According to independent estimates prepared by Inquiry Committee of Railways, total amount spent on purchases were not more than Rs. 92,91,768/- but an excess amount of Rs. 11.263 million (approx.) was paid."
It is stated at the bar that whereas the total loss was about 35 millions, the amount so far recovered because of the "plea bargain" is approximately 41 Millions, an amount far above the loss suffered by the Railways and mentioned in the Reference.
Learned counsel for the petitioner while seeking quashment of the proceedings has stated that in fact there was no valid Reference made to NAB because this was not authorized by the "appropriate Government". Which in case of Pakistan Railways is the Secretary Railways in accordance with the rules of business of the Federal Government. But while replying to this objection of the learned counsel for the petitioner, the learned counsel for NAB stated that lodging of Reference is not merely confined to a complaint to be made by the "appropriate government". This can be made even by a private person or anyone. Therefore, to attribute infirmity to the Reference was not a correct argument.
But the basic question which came up for consideration while the arguments were proceeding was that in case NAB has already recovered more money than loss suffered by the Railways after permitting the co-accused to enter into "plea bargain" and who upon this arrangement had paid the amount, this rendered the Reference infructuous against the petitioner and his co-accused Misri Khan because there was nothing left to be recovered and they were then to be discharged.
There is a permission for plea bargain for purposes of recovery of the loss given by the Chairman NAB to the co-accused. If the present petitioner did not go plea bargain, it was because he remained steadfast to his plea that he was innocent. The others having bargained, therefore, bargained their positions and paid the amount claimed. It is now an admitted position that the loss as indicated by the Pakistan Railways and later by NAB and attributed to all of them was fully paid. Thus, nothing was left to be recovered.
NAB Law came into being in 1999 and this is new law which has adopted the American concept of "plea bargain". And one of the purposes for this and enunciated in its preamble was to recover the State many misappropriated or removed through corruption and corrupt parties or misuse of powers and authority. So, the aim of NAB Ordinance, 1999 and the provisions of its Section 25 was not merely for punishing people with sentence and, therefore, where a recovery could be made and the Chairman NAB upon an offer being made voluntarily, accepts the same and the pecuniary loss is made good, the case ends and for it to proceed further has no moral justification in view of the practice of NAB and the intention and the spirit of this law and this situation has emerged in this case today.
In this connection it will be proper if we make a reference to Section 25 of NAB Ordinance, 1999. It reads as follows:--
Voluntary return and plea bargain.--(a) Notwithstanding anything contained in Section 15 or in any other law for the time being in force, where a holder of public office or any other person, prior to the authorization of investigation against him, voluntarily comes forward and offers to return the assets or gains acquired or made by him in the course, or as the consequence, of any offence under this Ordinance, the Chairman NAB may accept such offer and after determination of the amount due from such person and its deposit with the NAB discharge such person from all his liability in respect of the matter or transaction in issue:
Provided that the matter is not sub judice in any Court of law.
(b) Where at any time after the authorization of investigation, before or after the commencement of the trial or during the pendency of an appeal, the accused offers to return to the NAB the assets or gains acquired or made by him in the course, or as a consequence, of any offence under this Ordinance, the Chairman, NAB, may, in his discretion, after taking into consideration the facts and circumstances of the case, accept the offer on such terms and condition as he may consider necessary, and if the accused agrees to return to the NAB the amount determined by the Chairman, NAB, the Chairman, NAB, shall refer the case for the approval of the Court, or as the case may be, the Appellant Court and for the release of the accused.
(c) The amount deposited by the accused with the NAB shall be transferred to the Federal Government or, as the case may be, a Provincial Government or the concerned bank or financial institution, company, body corporate, co-operative society, statutory body, or authority concerned with one month from the date of such deposit."
According to our interpretation, a plea bargain can be entered into by the holder of a public office or by any other person on his behalf. This implies that it can be entered into on behalf of other persons by any person who makes good the said loss.
The only other question will be whether this is possible only at the stage prior to the authorization of investigation or it can be done at any time later on. In case of the other co-accused we are told that the plea bargain exercise was carried out after the authorization/filing of the Reference.
It is now for the Court below to see what are the facts pertaining to the plea bargain entered into with some of the accused who had been accused of the same offence as the present petitioner and who having made good the loss have been discharged.
We are of the view that once the agency authorizes plea bargain and the loss is made good then agency has to follow what is prescribed by Section 25 itself in the words, i.e. "discharge such person from all his liability in respect of the matter or transaction in issue" and cannot go any further.
A State exists for the welfare of the people and it has always to interpret its criminal law with this spirit. According to Dostovesky in "Crime & Punishment", the civility of a State is to be judged from the fair treatment it allows to its criminals. So, if the loss has been made good, the intention of the law and its spirit would demand that a similar treatment be extended to the petitioner which was extended to other co-accused who have been discharged of their liability after they paid the entire loss rather more, irrespective of the fact that the petitioner did not enter into a "plea bargain".
These are our views and with these views we are referring the matter back to the learned trial Court for arithmetical calculations of the loss and the recovery effected. If what is said is true the petitioner will also be discharged in accordance with law. In case, the loss was not make good then this order will not be binding on the trial Court and the trial Court will proceed with the matter as if this order was not passed.
Our observations aforementioned are explicit and the matter is now remitted to the trial Court for determining in about two months the factual questions which we have raised consequently the bail already granted to the petitioner on 23.9.2004 by this Court is also confirmed on the same Machalka.
(Rao Farid-ul-Haque) Case remanded.
PLJ 2006 Lahore 1345 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
MASOOD AHMAD JAVED--Petitioner
versus
STATE and 5 others--Respondents
W.P. No. 6824 of 2005, heard on 21.2.2006.
Police Order, 2002--
----Art. 155(1), (2)--Pakistan Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149--Criminal Procedure Code (V of -1898), S. 21-A--Constitution of Pakistan, 1973, Art. 199--Art. 155(2) will be applied at the time of reporting the matter to the Court and not at the investigation stage--Validity--Written report by an authorised officer was required for prosecution of offences mentioned in Art. 155(1)--Held: Matter is at investigation stage and the proper stage for consideration of the implications of the Art. 155(2) of Police Order will be when the matter is reported to the Court for commencement of the prosecution. [P. 1349] A
PLD 1998 P.Cr.L.J. 181, 1993 MLD 560, 1994 P.Cr.L.J. 825, PLJ 1998 Lahore 1651, 1990 P.Cr.L.J. 1314, PLD 2005 Karachi 285, 2005 MLD 1647, PLD 2004 Lahore 284, 2002 P.Cr.L.J. 400, PLD 1999 Lahore 109, 2005 SCMR 37 and PLJ 2000 Lahore 1787 (ref.)
Ch. Abdul Sattar Goraya, Advocate for Petitioner.
Mr. Zafar Ullah Khan Khakwani, AAG for Respondents.
Mr. Altaf Ibrahim Qureshi, Advocate for Complainant.
Date of hearing : 21.2.2006.
Judgment
This judgment shall decide Writ Petition No. 6824 and W.P. No. 6600 of 2005 as common questions are involved.
The petitioner is a Police Officer posted as DSP, Regional Investigation Branch, Multan. The investigation of case FIR No. 219 dated 23.4.2004 under Sections 302/324/148/149 PPC at P.S. Farid Town, District Sahiwal, was entrusted to the petitioner. He conducted the said proceedings and concluded the same on 14.7.2004. According to the opinion formed by the petitioner, he declared Muhammad Aslam alias Baggo, one of the accused persons, to be innocent. The complainant of the case filed an application against the petitioner. Some inquiry was conducted and the conclusion reached was that the petitioner ante-dated his report and further that Muhammad Asif Ali and Sajid Manzoor witnesses who had never supported the accused party were stated to have done so. Upon receipt of this inquiry report dated 18.10.2005 the Inspector General of Police placed the petitioner under suspension.
Asif Ali (the client of Mr. Altaf Ibrahim Qureshi, Advocate) filed an application under Sections 21-A and B Cr.P.C. for registration of a case under Articles 155/156 of the Police Order, 2002 against the petitioner. This application was allowed on 31.10.2005 by a learned Additional Sessions Judge, Sahiwal, who directed the S.H.O., P.S. Farid Town, Sahiwal to register a case against the petitioner under the said provisions of law. This order has been impugned in these two writ petitions.
M/s Ch. Abdul Sattar Goraya and Ch. Pervaiz Aftab, Advocates, representing the petitioners urge that the said complaint filed before the learned Additional Sessions Judge was bogus and further that he had no jurisdiction to get the case registered. Particular reference is being made to Sub-Article (2) of Article 155 of the said Police Order to urge that the prosecution under the said provision of law requires a report in writing from an authorized officer to be prescribed by the Rules which are to be framed. Reliance has been placed upon the cases of Agha Nadim and another v. The Station House Officer, Police Station, Lohari Gate, Lahore and another (1998 P.Cr.L.J. 181), Khadim Hussain v. The State (1993 MLD 560), A.H. Masood v. Province of the Punjab through Chief Secretary and 3 others (1994 P.Cr.L.J. 825), Muhammad Hafeez, etc. v. State (PLJ 1998 Lahore 1651) and Haji Muhammad Hussain v. S.H.O., Police Station, Chunian and 6 others (1990 P.Cr.L.J. 1314), Mr. Zafarullah Khan, learned A.A.G., on the other hand contends with reference to the case of Naseem Akhtar Khan v. District and Sessions Judge (PLD 2005 Karachi 285) that the learned ASJ has acted within his domain while passing the impugned order. According to the learned A.A.G. the offence is punishable with three years imprisonment and as such is cognizable and there is no express bar in the said Police Order in this behalf. He also relies on the cases of Ali Ahmad, (Sub-Inspector) v. Additional Director, Anti-Corruption Establishment, Multan Region, Multan (2005 MLD 1647), Muhammad Yousuf v. Director, Anti-Corruption Establishment, Punjab, Lahore and 5 others (PLD 2004 Lahore 284) Nazar Hussain v. The State (2002 P.Cr.L.J. 440) and Mian Muhammad Iqbal and others v. Government of Punjab (PLD 1999 Lahore 109). Learned A.A.G. also questions the competency of these writ petitions with reference to the cases of Collector of Customs, Lahore and others v. Universal Gateway Tarding Corporation and another (2005 S.C.M.R. 37) and Haji Muhammad Sadiq v. Ilaqa Magistrate Police Station Factory Area, Faisalabad and others (PLJ 2000 Lahore 1787). Mr. Altaf Ibrahim Qureshi, Advocate, learned counsel for the complainant has also argued on the line taken by the learned AAG.
I may stated here that the learned counsel had in the course of limine hearing on 5.12.2005 stated that he will not be pressing the departmental proceedings underway against the petitioner reserving his rights to take appropriate proceedings in accordance with law. I am also not inclined to go into the merits i.e. correctness or otherwise of the opinion formed or report made by the petitioner-officer in the matter of said investigation conducted by him.
The legal question involved in these writ petitions as to whether on an application filed by a private person as in the present case, a learned Additional Sessions Judge/Justice of Peace can issue the directions of the nature contained in the impugned order i.e. directing the concerned S.H.O. to register a case under the said Articles 155/156 of the Police Order, 2002. I may note here that upon a reading of said provisions of law, so far as the facts of the present case are concerned, I am not called upon to take into consideration the provisions of Article 156 of the said Order, Article 155 of the same is reproduced hereunder--
"155. Penalty for certain types of misconduct by Police Officers.--(1) Any Police Officer who--
(a) makes for obtaining release from service as Police Officer, a false statement or a statement which is misleading in material particulars OR uses a false document for the purpose;
(b) is guilty of cowardice, or being a Police Officer of junior ranks, resigns his office or withdraws himself from duties without permission;
(c) is guilty of any willful breach or neglect of any provision of law or of any rule or regulation or any order which he is bound to observe or obey;
(d) is guilty of any violation of duty;
(e) is found in a state of intoxication, while on duty;
(f) malingers or feigns or voluntarily causes hurt to himself with the intention to render himself unfit for duty;
(g) is grossly insubordinate to his superior officer or uses criminal force against a superior officer; or
(h) engages himself or participates in any demonstration, procession or strike or resorts to or in any way abets any form of strike or coercion or physical duress to force any authority to concede anything.
shall, on conviction, for every such offence be punished with imprisonment for a term which may extend to three years and with fine.
(2) Prosecution under this Article shall require a report on writing by any officer authorized in this behalf under the rules."
Now according to the learned counsel for the petitioners, the said provision of the said Sub-Article (2) of Article 155 of the Police Order, 2002, constitutes a bar upon any person to initiate prosecution under the said Article and that it will be only upon a report of an officer authorized in this behalf under the Rules that the prosecution will commence. I may further note that the admitted position is that no such Rules have been framed so far.
Now I will examine the said judgments being relied upon by the learned counsel for the petitioners and the learned A.A.G. Now in the said case of Agha Nadim and another, this Court considered the provisions of the Drugs Act, 1976 and the rules framed thereunder to hold that a case got registered by a Drug Inspector without permission of the Quality Control Board as required by Sections 11 (5) and 19(6) of the Drugs Act, 1976 read with Rule 4 of the said Rules is liable to be quashed. In the said case of Khadim Hussain, this Court considered the provisions of Section 24(6) of the Emigration Ordinance, 1979, to hold that the Special Court could not have taken cognizance on police report and this could have been done only upon a complaint as mentioned. In the said provision of law. In the case of A.H. Masood, a case registered without the permission of the Anti-Corruption Committee was quashed. In the said case of Muhammad Hafeez, etc., it was held that a case registered by the Local Police is violative of the provisions of Rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985, while in the said case of Haji Muhammad Hussain, provisions of Section 195 Cr.P.C. came up for consideration. Now in the matter of said Anti-Corruption Rules, the law is now settled that these cannot override the provisions of the Ordinance under which these have been framed and this is so held in the latter judgments cited by the learned A.A.G.
Now the judgment rendered by a learned Division Bench of the High Court of Sindh at Karachi (P.L.D. 2005 Karachi 85) being relied upon by the learned A.A.G. is one in which the provisions of the Police Order, 2002, vis-a-vis Section 22-A Cr.P.C. were considered by their Lordships and a similar order passed by a learned Sessions Judge, Karachi East/Justice of Peace was up held. I may note there that Ch. Abdul Sattar Goraya, Advocate, has with reference to para-5 of the said judgment (page 288 of the report) has vehemently urged that their Lordships left the question involved in the present case open.
Having read the entire judgment. I am not inclined to agree with the learned counsel for the petitioners. It is true that their Lordships did observe that the contention of the learned counsel that Article 155(2) of the said Order 2002, requires a report in writing by an authorized officer for prosecution for the said offences mentioned in Article 155(1) of the said order, need not be gone into at this stage. However, the judgment contains the reasons as well. The reason stated is that since the prosecution has yet to commence in a competent Court and the direction being only to register a case, the said arguments need not to be considered. The ultimate finding was that the case has been correctly ordered to be registered by the Justice of Piece. Needless to state that the offence in question is punishable with three years imprisonment and with fine. Their Lordships have observed and correctly so that the offence is cognizable within the meaning of Second Schedule to the Cr.P.C. No bar is spelt out in the said Order, 2002, against an investigation to be conducted in the matter. At the moment, the matter is at investigation stage and I do find that the proper stage for consideration of the implications of the said Article 155(2) of the Police Order, 2002, will be when the matter is reported to the Court for commencement of the prosecution. Both the writ petitions are accordingly dismissed but without any orders as to costs.
(Rao Farid-ul-Haque Khan) Petitions dismissed.
PLJ 2006 Lahore 1349 [Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
MUHAMMAD YAR PATWARI--Petitioner
versus
DISTRICT CO-ORDINATION OFFICER, SAHIWAL and 3 others--Respondents
W.P. No. 1890 of 2006, decided on 25.4.2006.
(i) Constitution of Pakistan, 1973--
----Art. 212(2)--Mutual transfer of patwari--Jurisdiction of High Court in matters of postings/transfers was ousted--Validity--Prima facie jurisdiction of High Court--High Court was not in a position to pass a final order--Legality--Held: High Court despite finding orders violative of the transfer policy as well as the law declared by the Supreme Court, is not in a position to pass any final order but was compelled to disapprove the interference by Chief Minister's Secretariat by way of issuing/ conveying telephonic directions to subordinate authorities for making transfers/postings/adjustments of his own choice. [P. 1351] A
Constitution of Pakistan, 1973--
----Art. 212(2)--Disturbance to executive--Interference by Chief Minister--Matters of transfers/posting/adjustments--Validity--High Court had failed to lay its hands on any law, rules, policy or directive, authorising the Chief Minister to interfer in the matters of transfers/posting/ adjustments of petty Government servants at Patwari level--Oral directions regarding transfers/posting/adjustments of patwaris issued by the Chief Minister and conveyed by Additional Secretary--Held: Neither the Chief Minister should have issued such oral directions nor the same should have been conveyed to the lower authorities by a person like Chief Minister's Secretariat. [Pp. 1351 & 1352] B
Constitution of Pakistan, 1973--
----Art. 212(2)--Duty of Executive Authorities--Full authority to be given to persons incharge/competent to decide the question of posting/transfer/ adjustment--Validity--Chief Minister shall ensure that the matters of posting/transfer/adjustment of petty Government servants like the present one, are dealt with strictly in accordance with law and the persons incharge/competent in such like matters should be given free hand to independent of any political pressure. [P. 1353] C
PLD 1965 SC 53, PLD 1995 SC 530, PLD 2004 Lahore 815, ref.
Mr. Iqbal Hussain Pawar Hajwari, Advocate for Petitioner.
Date of hearing: 25.4.2006.
Order
The petitioner who is Patwari in the revenue department and is aggrieved of his transfers in succession within a period of last less than two months through the instant Constitutional Petition has prayed for setting-aside his transfer order dated 3.4.2006.
The brief facts of the case are that an order for mutual transfer between Muhammad Ayub Patwari Halqa 65-A/G.D and Ghulam Farid Patwari Halqa 94/9-L was passed by the Deputy District Officer (Revenue), Sahiwal on 15.11.2005. Similarly the petitioner Muhammad Yar was transferred from Tibi Jay Sing to Halqa 95/6-R against a vacant post vide order dated 15.2.2006. Later on the Executive District Officer (Revenue), Sahiwal vide order dated 25.2.2006 modified the earlier order dated 15.2.2006 and adjusted Muhammad Yar petitioner in Halqa 96/9-L. On 3.3.2006 the Executive District Officer (Revenue), Sahiwal directed that earlier order dated 15.2.2006 adjusting the petitioner at 95/6-R to remain in abeyance till further orders. Thereafter, the District Co-ordination Officer, Sahiwal on 14.3.2006 in compliance with the telephonic directions of Sardar Sher Afgan, Additional Secretary to Chief Minister, Punjab Lahore transferred Ghulam Farid Patwari from Chak No. 65/G.D to Chak No. 95/6-R (where the petitioner had been posted). Finally through order dated 3.4.2006 the Executive District Officer (Revenue), Sahiwal again directed the petitioner to be adjusted at Tibi Jay Sing against a vacant post from where he was earlier transferred vide order dated 15.2.2006. The above-mentioned series of adjusmtents/posting/transfers disturbed the E.D.O. (R), Sahiwal who vide Letter No. 1380. O.S-E.D.O. (R) dated 18.3.2006 sent his grievance to the Additional Secretary (Admn), Chief Minister's Secretariat Punjab, Lahore through the District Co-ordination Officer, Sahiwal complaining the defiance/violation of tenure policy issued by the Government of the Punjab. The petitioner is now aggrieved of the order dated 3.4.2006 whereby he has again been transferred/posted/adjusted as Patwari Halqa Tibi Jai Singh.
Prima facie the jurisdiction of this Court in the matters of postings/transfers is ousted by the bar contained in Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 and this Court despite finding the above-mentioned series of orders violative of the transfer policy as well as the law declared by the Hon'ble Supreme Court of Pakistan in the case "Zahid Akhtar versus Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others" (P.L.D. 1995 Supreme Court 530), is not in a position to pass any final order but is compelled to disapprove the interference by Sardar Sher Afgan, Additional Secretary (Admn), Chief Minister's Secretariat Punjab, Lahore by way of issuing/conveying telephonic directions to subordinate authorities for making transfers/posting/adjustments of his own choice, may be under the directions of the Chief Minister of the Punjab. The Hon'ble Supreme Court of Pakistan in Zahid Akhtar's case (PLD 1995 SC 530) referred to above, expressly held that:--
"Government servant should comply only with those orders/ directions of his superior which were legal and within his competence--Compliance of illegal or an incompetent direction/order could neither be justified on the plea of same having been issued from superior authority nor same could be defended on the ground that non-compliance thereof, could have exposed concerned Government servant to the risk of disciplinary action."
It was further held in the said judgment that:--
"Government servant's repeated transfers from one place to another in a span of few months by the order of Minister concerned and carrying out of such orders obediently by the Secretary of the Department concerned highly unethical and undesirable."
This Court has failed to lay its hands on any law, rules, policy or directive, authorising the Chief Minister to interfere in the matters of transfers/posting/adjustment of petty Government servants at Patwari level, hence, neither the Chief Minister should have issued such oral directions nor the same should have been conveyed to the lower authorities by a person like Sardar Sher Afgan, Additional Secretary (Admn), Chief Minister's Secretariat Punjab, Lahore causing disturbance to the Executive District Officer (Revenue), Sahiwal who was compelled to address the letter dated 18.3.2006 mentioned above bringing to the notice of the Chief Minister that his oral directions were even against the tenure policy of the Government of the Punjab.
Prima facie, the oral directions issued by the Chief Minister Punjab and the act of Sardar Sher Afghan, Additional Secretary (Admn) conveying such oral directions of the Chief Minister telephonically to the District Co-ordination Officer, Sahiwal and further the said D.C.O. directing the Executive District Officer (Revenue) Sahiwal for making adjustment/transfer/posting etc. without application of independent mind, is in clear disregard as well as violation of the above referred judgment of the Hon'ble Supreme Court of Pakistan and this Court in the case "Abdul Rehman Shaukat versus Sardar Muhammad Akram Javed, District Officer (Revenue), Kasur" (PLD 2004 Lahore 815 held as under:--
"Every body is bound to obey the command of the Constitution and to act in accordance with law i.e. to act within the framework of law and Constitution. All organs of the State are under the statutory duty to act in aid of the law declared by the Supreme Court and not to flout the same. The right law declared by the judgment of Supreme Court cannot be overridden or nullified by an executive."
The judgment of the Hon'ble Supreme Court referred to above i.e. Zahid Akhtar's case (PLD 1995 SC 530) is binding on all the authorities in terms of Article 89 of the Constitution of Islamic Republic of Pakistan, 1973.
It would not be out of place of mention here that in the instant case the Executive District Officer (Revenue), Sahiwal was so fed up with the oral directions issued by the Chief Minister's Secretariat and conveyed by Sardar Sher Afghan, Additional Secretary (Admn), telephonically, that the E.D.O. (R) had to disclose it in his letter to the Additional Secretary (Admn.) that on the request of Haji Jalal Din Dhakhu the concerned M.P.A., Ghulam Farid Patwari was adjusted/posted as Patwari Halqa 95/6-R vide letter No. 1314/OS/EDOR dated 25.2.2006 against the tenure policy and this letter amounts to giving vent to his sentiments by Execution District Officer (Revenue) against the political interference in the matters of adjustment/postings of Patwaries.
In view of the above, to strike balance and to remind the Executive authorities of their duties, it is deemed appropriate to send copy of this order alongwith writ petition and its annexures to the Chief Secretary to the Government of Punjab, Lahore who shall place the same before the Chief Minister Punjab and the Chief Minister shall ensure that not only the transfer policy issued by the Government but also the law declared by the Hon'ble Supreme Court in Zahid Akhtar's case (PLD 1995 SC 53) is strictly adhered to and the matters of posting/transfer/adjustment of petty Government servants like the present one, are dealt with strictly in accordance with law and the persons incharge/competent in such like matters should be given free hand to decide the question of posting/transfer/ adjusment, etc. per rules and regulations independent of any political pressure.
With above observations and directions this Writ Petition is disposed of.
(Rao Farid-ul-Haque Khan) Petition disposed of
PLJ 2006 Lahore 1353 (DB) [Multan Bench Multan]
Present: Muhammad Jehangir Arshad and Maulvi Anwar-ul-Haq, J.
MUHAMMAD HANIF--Appellant
versus
INSPECTOR GENERAL OF POLICE, PUNJAB, LAHORE and 3 others--Respondents
I.C.A. No. 95 of 2005 in W.P. No. 4734 of 2004, decided on 27.4.2006.
(i) Police Rules, 1934--
----R. 13.9 & Preamble--Service Tribunal Act, 1974, S. 4--Constitution of Pakistan, 1973, Art. 212--Service matter--Promotion list--Validity--Civil servant qualified promotion course in 1993 and cannot claim promotion w.e.f. 1988--Validity--Civil servant qualified intermediate class course in 1993 and was placed in list w.e.f. 1.7.1993 thus he cannot claim such promotion w.e.f. 1988 when he had not even passed the examination--Promotion cannot be claimed retrospectively--Passing of intermediate course a condition precedent to claim promotion--Civil servant could not claim his promotion and placement in List D retrospectively because passing of intermediate class course is a condition precedent for being eligible to be placed in disputed list. [Pp. 1355 & 1356] A & B
(ii) Punjab Service Tribunal Act, 1974--
----S. 4--Constitution of Pakistan, 1973, Art. 212--Fresh cause of action to be moved before competent authority or the Punjab Service Tribunal--Scope--Placement in seniority list not properly done or violative of his claim--Effect--Fresh cause of action accrues--Validity--Civil servant felt that placement of his name in the list w.e.f. 1.7.1993 had not been properly done or is violative of his claim of seniority the same amounts to accruing a fresh cause of action for which he can move the competent authority or for that matter u/S. 4 of the Punjab Service Tribunal. [P. 1355] C
PLD 1997 SC 382, ref.
Mr. Muhammad Ramzan Khalid Joiya, Advocate for Appellant.
Mr. Zafrullah Khan Khakwani, Additional Advocate General and Mirza Ramzan Baig, DSP for Respondent No. 2.
Date of hearing : 27.4.2006.
Order
This I.C.A. is directed against the order dated 18.4.2005 whereby the learned Single Judge, in chamber, of this Court dismissed W.P. No. 4734/2004, filed by the appellant, seeking the following relief:--
"In view of the above submissions, it is most respectfully prayed that petition may graciously be accepted and the Respondents Nos. 1-3 may kindly be directed as per the revised seniority list, petitioner shall be considered for service benefits/promotion in the same way as has been allowed to his immediate juniors specially Respondent No. 4 Karamat Ali and others".
"Since the appellant failed when he appeared alongwith his seniors in 1985 and was able to pass the course subsequently in 1988, it would only be consistent with the policy being followed by the Inspector General of Police Punjab if the appellant is placed in C/1 at the bottom of those who appeared with the appellant and passed the course, and in further considered for promotion on the basis of the same in according with the rules".
Feeling that the said order of the learned Punjab Service Tribunal was not implemented in letter & spirit the appellant failed W.P. No. 4734/2004 seeking the above-mentioned relief. The said Writ Petition was however, dismissed by the learned Single Judge, in Chamber, of this Court vide order dated 18.4.2005 by holding that the judgment of the Services Tribunal already stood complied with and seniority of the appellant was fixed at the bottom of those head Constables who passed last school course in the term ending March, 1988 and subsequently he was admitted to promotion list C/1 with his batchmates who qualified the lower school course in term ending September, 1985. The said order of the learned Single Judge has now been challenged through this I.C.A.
It is contended by learned counsel for the appellant that the appellant was in fact entitled to be placed in list-D w.e.f. 1988 with his batchmates but he has been placed in the said list from 1.7.1993 which is violative of the order of the Punjab Service Tribunal and thus the learned Single Judge was wrong in dismissing the writ petition of the appellant.
On the other hand, Mr. Zafrullah Khan Khakwani, learned Law Officer has submitted that for the purposes of being placed in list-D in terms of Rule 13.9 of the Police Rules, 1934 the basic requirement is that the candidate should have passed lower school course and Intermediate school course at the Police Training School and since the appellant passed intermediate class course in the term ending June, 1993, hence, he was rightly admitted to list-D w.e.f. 1993 and could not be placed in the said list w.e.f. 1988 when he had not yet passed the intermediate class course. The learned Law Officer has therefore argued that complaint of the appellant that order of the Services Tribunal was not rightly implemented, is not correct and in case if the appellant feels that after passing intermediate school course in the term ending June, 1993 his eligibility for placement in list-D was not correctly determined then the same is a fresh cause of action for which he may approach the competent authority as well as the Punjab Service Tribunal in terms of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 4 of the Punjab Service Tribunals Act, 1974, as the question of fitness and not the eligibility for proposition has been barred by Section 4 of the said Act. Reliance has been placed on the case "Dr. Ahmad Salman Waris, Assistant Professor, Services Hospital, Lahore versus Dr. Naeem Akhtar and 4 others" (PLD 1997 SC 382).
We have considered the above-mentioned arguments of learned counsel for the parties and also perused the report and parawise comments filed in the writ petition.
Admittedly the appellant qualified intermediate class course in 1993 and was placed in list-D w.e.f. 1.7.1993 thus he cannot claim such promotion w.e.f. 1988 when he had not even passed the said examination and the same is also in line with the Rule 13.9(1) of the Police Rules, 1934, reproduced below:--
"A list shall be maintained in each district in card index From 13.9 (1) of those head constables who have passed the lower school course and the intermediate school course at the Police Training School and are approved by the Deputy Inspector General as eligible for officiating or substantive promotion to the rank of assistant sub-inspector. No head constable shall be admitted to this list who is not thoroughly efficient in all branches of the duties of a constable and head constable and of established integrity."
In the light of above language of the Rule which is very much clear, the appellant could not claim his promotion and placement in list-D retrospectively because passing of intermediate class course is a condition precedent for being eligible to be placed in the said list. We therefore, agree with the contention of learned Law Officer that in case the appellant feels that placement of his name in the list-D w.e.f. 1.7.1993 has not been properly done or is violative of his claim of seniority the same amounts to accruing a fresh cause of action for which he can move the competent authority or for that matter to be Punjab Service Tribunal under Section 4 of the above Act, because as held by the Hon'ble Supreme Court of Pakistan in the above referred case PLD 1997 SC 380 it is the question of fitness and not the eligibility for promotion which has been ousted from the purview of the Punjab Service Tribunal. The appellant has therefore, failed to make out a case that judgment of the Service Tribunal was not correctly implemented. The learned Single Judge therefore, committed no illegality or irregularity in dismissing the writ petition. Similarly, this I.C.A. has no force and is accordingly dismissed.
(Rao Faird-ul-Haque Khan) Petition dismissed.
PLJ 2006 Lahore 1356 [Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
FIDA HUSSAIN--Petitioner
versus
ADDITIONAL SESSION JUDGE, JAMPUR, DISTRICT RAJANPUR and another--Respondents
W.P. No. 2027 of 2006, decided on 2.5.2006.
(i) Anti Terrorism Act, 1997 (XXVII of 1997)--
----Ss. 6, 7, Schedule III--Pakistan Penal Code, 1860 (XLV of 1860), Ss. 365-A, 337-A(i), 506, 148 & 149--Abduction or kidnapping for ransom--An offence triable by the Anti Terrorism Court--Validity--There is no dispute to the legal proposition that in terms of Para-4 to the third Schedule of Anti Terrorism Act, 1997, offence covering abduction or kidnapping for ransom is exclusively triable Anti Terrorism Court. [P. 1359] A
(ii) Criminal Procedure Code, 1898 (V of 1898)--
----S. 265-K--Pakistan Penal Code, (XLV of 1860), S. 365-A--Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7--Application for seeking acquittal--Scope--Acquittal can be ordered only after regular trial by the Court of competent jurisdiction--Validity--Where private complaint was instituted before the Magistrate and the same was entrusted to the Court of Sessions, the subsequent proceedings taken in the said complaint till the passing of the impugned order were corum non judice--Effect--In such a situation accused can not be acquitted--Held: Acquittal is possible only after a regular trial by a Court of competent jurisdiction. [P. 1359] B
(iii) Constitution of Pakistan, 1973--
----Art. 199--Determination of question whether the act of terrorism was committed with means rea--Jurisdiction of High Court under Art. 199--Held: High Court has no jurisdiction to record any findings about guilt or innocence of the petitioner and his co-accused at such stage and it is exclusively the jurisdiction of the Anti Terrorism Court to decide after recording the evidence. [P. 1359] C
(iv) Anti Terrorism Act, 1997 (XXVII of 1997)--
----Preamble--Criminal Procedure Code, (V of 1898), S. 190--Procedure for filing complaint before special Court--Entertainment of private complaint directly by the Special Courts--Validity--Special Courts are competent to entertain private complaint directly and issue process to the accused after holding preliminary inquiry in the case and as such adoption of procedure in terms of Section 190 is therefore not mandatory requirement for filing private complaint before Special Court. [P. 1360] D
(v) Criminal Procedure Code, 1898 (V of 1898)--
----S. 265-K--Determination of question of acquittal on procedural defect--Scope--Where complaint containing the allegation of abduction for ransom filed before the magistrate, whether petitioner can be acquitted on such procedural defect--Held: All the proceedings conducted by the Magistrate and Additional Sessions Judge in the complaint filed by the respondent containing allegation of abduction for ransom was an exercise in futility, however, the procedural defect was neither fatal nor on the basis of said defect--Petitioner could be acquitted in terms of Section 265-K Cr.P.C. [P. 1360] E
(vi) Criminal Trial--
----Jurisdiction of Sessions Judge to send the case to Anti Terrorist Court--Validity--Session Judge sending the case to the Anti Terrorism Court for trial was neither without lawful authority not suffered from any jurisdiction defect. [P. 1360] F
(vii) Anti Terrorism Act, 1997 (XXVII of 1997)--
----S. 23--Offence not a schedule offence--Jurisdiction of Anti Terrorism Court--Where the case was sent for trial to the Anti Terrorism Court--Anti-Terrorism Court still having power to refuse trial--Validity--Anti-Terrorism Court in terms of Section 23 of the Anti Terrorism Act, 1997 might still refuse to try the complaint of the respondent and transfer the same for trial in the Court of competent jurisdiction if after recording evidence the Anti Terrorism Court was of the opinion that offence was not a scheduled offence. [P. 1360] G
PLD 2006 Lahore 64, NLR 2005 Criminal 561, 1994 SCMR 2177, ref.
Sardar Altaf Hussain Khan, Advocate for Petitioner.
Date of hearing : 2.5.2006.
Order
The petitioner, being one of the accused in a private complaint filed by Muhammad Ibrahim Respondent No. 2 under Sections 365-A, 337-A(i), 506(ii), 148, 149 PPC in respect of an occurrence taking place within the territorial limits of P.S Jam Pur, seeks quashment of order dated 20.4.2006 passed by learned Additional Sessions Judge whereby the said complaint was ordered to be transferred to the Court of Anti-Terrorism Court established under Anti Terrorism Act, 1997.
The facts in brief are that Muhammad Ibrahim Respondent No. 2 filed a private complaint before the Ilaqa Magistrate, Jam pur in terms of Section 190 Cr.P.C. and the learned Ilaqa Magistrate sent the same to the learned District & Sessions Judge, Rajan pur who onwards entrusted the said complaint to the learned Additional Sessions Judge and the learned Additional Sessions Judge after recording summary evidence holding that prima facie complaint was though under Section 365-A PPC yet as from the evidence element of terror or harassment created in public within the meanings of Section 6 and & of the Anti Terrorism Act, 1997 was not made out the same was triable by the Court of Sessions as an ordinary Court, summoned the accused to face trial. However, the petitioner and co-accused themselves invited the trouble by making an application to the learned Additional Sessions Judge in terms of Section 265-K Cr.P.C. seeking their acquittal on the ground that as the offence under Section 365-A PPC was exclusively triable by Anti Terrorism Court and the learned Additional Sessions Judge had no jurisdiction to try the said complaint, therefore, all the accused be acquitted. This application was contested and the learned Additional Sessions Judge vide order dated 20.4.2006 not only dismissed the said application of the petitioner and his co-accused but also held that as the offence under Section 365-A PPC was exclusively triable by the Special Court established under Anti Terrorism Act, 1997 and following the law declared by this Court in the case "Rana Abdul Ghaffar versus Abdul Shakoor and 3 others" (PLD 2006 Lahore 64) directed the transfer of the said complaint to the Anti Terrorism Court. This order dated 20.4.2006 passed by the learned Additional Sessions Judge; Jam pur has been challenged through the instant Constitutional Petition.
It is argued by learned counsel for the petitioner that as the complaint from the very beginning carried Section 365-A PPC, hence the same was exclusively triable by Anti Terrorism Court and all the proceedings from institution of the compliant till date were corum non judice and for that reason the petitioner was entitled to be acquitted or in the alternative as the element of Section 365-A PPC viz. abduction for ransom was not established from bare reading of the complaint as well as challan case FIR No. 84/2004 registered with P.S. Jam Pur, hence, mere addition of Section 365-A PPC at a letter stage through the complaint could not make the case triable by the Anti Terrorism Court, established under Anti Terrorism Act, 1997, as such they were entitled to be acquitted even by the learned Additional Sessions Judge.
The above-mentioned arguments of learned counsel for the petitioner have been considered in the light of Sections 6 & 7 of the Anti Terrorism Act, 1997 read with Schedule III (Part-4) of the above Act.
There is no dispute to the legal proposition that in terms of Part-4 to the third schedule of Anti Terrorism Act, 1997, offence covering abduction or kidnapping for ransom is exclusively triable by Anti Terrorism Court. To this extent there is a considerable force in the contention of learned counsel for the petitioner that even the institution of private complaint before the Magistrate and its entrustment to the to learned Additional Sessions Judge and all the subsequent proceedings taken in the said complaint till passing of the impugned order were without lawful authority being corum non judice but there is no force in the contention of the learned counsel for the petitioner that in such a situation the petitioner and his co-accused be acquitted, because acquittal is possible only after a regular trial by a Court of competent jurisdiction.
However, so far as the second leg of argument of learned counsel for the petitioner is concerned that from bare reading of complaint the offence of abduction for ransom is not made out and this Court should declare the petitioner as acquitted, has no legal force in view of the law declared by the Hon'ble Supreme Court of Pakistan in the case "Mirza Shaukat Baig versus Shahid Jamil, etc." (N.L.R. 2005 Criminal 561). The relevant portion is reproduced below:--
"Art. 199. Question whether act of terrorism under S. 6, Anti Terrorism Act, 1997 was committed by accused with mens rea (guilty mind) cannot be determined by High Court in exercise of its jurisdiction under Art. 199."
For what has been declared above by the Hon'ble Supreme Court of Pakistan, this Court has therefore, no jurisdiction to record any findings about guilt or innocence of the petitioner and his co-accused at this stage and it is exclusively the jurisdiction of the Anti Terrorism Court to decide after recording the evidence.
Before parting with this order, I would like to pin down the procedural requirement of filing complaints before the Special Court. As mentioned above complaint in this case was directly filed before the Magistrate in Terms of Section 190 Cr.P.C. as a private complaint in an ordinary case but as held by the Hon'ble Supreme Court in the case "Riffat Hayat versus Judge Special Court for Suppression of Terrorist Activities, Lahore and another" (1994 S.C.M.R. 2177) Special Court are competent to entertain private complaint directly and issue process to the accused after holding preliminary inquiry in the case and as such adoption of procedure in terms of Section 190 Cr.P.C. viz. filing of complaint before Magistrate in a case exclusively triable by Court of Sessions and then sending the same by the Magistrate to the Sessions Judge for trial, is therefore, not mandatory requirement for filing private complaint before the Special Court, therefore, in this case even the filing of complaint before the Magistrate was neither legal nor its sending to the Court of Sessions was the legal requirement. Hence, all the proceedings conducted by the Magistrate and the learned Additional Sessions Judge in the complaint filed by Respondent No. 2 Muhammad Ibrahim containing allegation of abduction for ransom was an exercise in futility, however, the said procedural defect is neither fatal nor on the basis of said defect the petitioner could be acquitted in terms of Section 265-K Cr.P.C.
Resultantly, the order dated 20.4.2006 passed by learned Additional Sessions Judge sending the case to the Anti Terrorism Court for trial is neither without lawful authority nor suffers from any jurisdictional defect. As held by the Hon'ble Supreme Court of Pakistan in Shaukat Mirza's case (N.L.R. 2005 Criminal 561) cited above, Anti Terrorism Court in terms of Section 23 of the Anti Terrorism Act, 1997 may still refuse to try the complaint of the respondent and transfer the same for trial in the Court of competent jurisdiction if after recording evidence the Anti Terrorism Court is of the opinion that offence was not a scheduled offence. The petitioners therefore, still have a remedy of approaching the Anti Terrorism Court by moving an application under Section 23 of the Anti Terrorism Act, 1997 and the said Court may pass any order in the light of the law declared by Hon'ble Supreme Court in the above referred Shaukat Mirza's case (N.L.R. 2005 Criminal 561). This writ petition, however, has no force and is accordingly dismissed.
(Rao Farid-ul-Haque Khan) Petition dismissed.
PLJ 2006 Lahore 1361 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
PAKISTAN COTTON GINNERS ASSOCIATION, MULTAN--Petitioner
versus
NATIONAL ELECTRIC POWER REGULATORY AUTHORITY and 3 others--Respondents
W.P. No. 2131 of 2005, heard on 13.4.2006.
(i) Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (XL of 1997)--
----Preamble--Object of enactment--The Act of 1997 has been enacted to provide for the regulation of generation, transmission and distribution of electric power and matters connected therewith and incidental thereto. [P. 1363] A
(ii) Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (XL of 1997)--
----Ss. 7(1), 7(3)(a)--NEPRA to be responsible for regulating the provisions of the Act--Validity--Section 7(1) lays down in absolutely unambiguous terms that the respondent shall be exclusively responsible for regulating the provisions of electric power services--Determination of tariff, rates, charges and terms and conditions--Scope--NEPRA shall be responsible--Held: Under Section 7(3)(a) the NEPRA shall determine tariff, rates, charges and other terms and conditions for supply of electric power services by the generation, transmission and distribution companies and recommend to Federal Government for notification. [P. 1364] B
(iii) Regulation of Generalation, Transmission and Distribution of Electric Power Act, 1997 (Act XL of 1997)--
-----Section 7(6)--NEPRA to protect the interests of consumers and companies--Validity--Section 7(6) enjoins upon the NEPRA that in performing its functions under the Act 1997, it shall, as far as practicable, protect the interest of consumers and companies providing electric power services in accordance with guidelines, not inconsistent with the provisions of the said Act, to be laid down by the Federal Government. [P. 1364] C
(iv) Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (Act XL of 1997)--
----S. 31(4)--Federal Government to make notification of tariff, rates, charges and other terms and conditions upon intimation by the authority--Validity--Federal Government is required to make a notification in the official gazette upon intimation by the authority of the tariff, rates, charges and other terms and conditions of the supply of electric power services as approved. [P. 1365] D
(v) Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (Act XL of 1997)--
----S. 31(4)--Proviso to--Power of Federal Government to require NEPRA to reconsider its determination--Validity--Proviso to S. 31(4) vests the Federal Government with a power to require the NEPRA to re-consider its determination of such tariff, rates, charges and other terms and conditions--Scope--Such power to be exercised within 15 days of the receipt of the intimation--NEPRA to intimate of the said requisition within 15 days--Validity--Federal Government so requires, the NEPRA was then to make a determination after re-consideration and to intimate the same to the Federal Government within 15 days of the requisition. [Pp. 1365 & 1366] E & F
(vi) Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (XL of 1997)--
----S. 31--Federal Government to notify the determination of the tariff--Validity--Federal Government is bound by law to notify the determination of the tariff as intimated by the NEPRA unless and until, of course, it considers it appropriate to make a requisition upon NEPRA to reconsider the matter which is not the case in hand. [P. 1366] G
(vii) Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (XL of 1997)--
----S. 31(3)(b)--Locus standi--Customers and interested persons to participate in tariff approval process--Validity--Opportunity is to be provided to customers and interested persons to participate meaningfully in tariff approval process--Question of locus standi--Petitioner being a body of such customers has locus standi--Held: Petitioner has no locus standi to file the instant writ petition is rejected. [P. 1366] H
2005 YLR 774, ref.
Malik Muhammad Rafiq Rajwana, Advocate for Petitioner.
Ch. Saghir Ahmad, Standing Counsel for Pakistan.
Mr. Rashid Hafeez, Advocate for Respondent No. 1.
Mr. Abdul Razzaq Raja, Advocate for Respondent No. 4.
Date of hearing : 13.4.2006.
Judgment
The admitted facts of this case are that the Respondent No. 3 filed an application on 26.6.2003 before the Respondent No. 1 for determination of tariffs. The public notices were issued and in response the petitioner also intervened with some suggestions. After considering the matter, the Respondent No. 1 made its determination and sent the case to the Federal Government for notification. The Respondent No. 3 file a review application which was also decided and the final determination was sent to the Federal Government for notification. This matter was also decided after hearing several interveners including the petitioner vide decision Annex-E (pages 43 to 65 of the paper book).
The grievance being made out in this writ petition is that a notification is not being published by the Federal Government as required by the law under which the Respondent No. 1 has been established. The Respondent No. 1, Federal Government as well as Respondent No. 3 have filed their replies.
Learned counsel for the petitioner contends that the Respondent No. 1 having been established under the authority of a law and having acted within the said authority to the benefit of, amongst others, the petitioner, they have a right to bring their grievance to the Court in the matter of inaction upon the part of federal Government to do as it is required by law to do so i.e. to notify the tariff determined by the Respondent No. 1 in accordance with law. Learned counsel has taken me through the several provisions of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (Act XL of 1997) (hereinafter to be referred to as the said Act). Learned Standing Counsel for Pakistan finds it difficult to oppose the prayer being made in this writ petition but refers to some financial implications involved in the matter to be borne by the Federal Government in the Finance Ministry. Learned counsel for Respondent No. 1, of course, supports the writ petition inasmuch as it calls upon the Federal Government to act in accordance with law. The learned counsel for Respondent No. 3 (MEPCO) opposes the writ petition not with reference to any defect in the determination made by the Respondent No. 1 but on the ground that the petitioner has no locus standi to file the writ petition. He relies on the case of Pakistan Institute of Human Rights through Muhammad Iftikhar Hussain Rajput v. The State through Chairman, Chief Minister's Task Force and others (2005 YLR 774).
I have given some thought to the respective contentions of the learned counsel for the parties and the learned Law Officer. Now the Respondent No. 1 i.e. National Electric Power Regularity Authority (commonly known as NEPRA) has been established under Section 3 of the said Act, 1997. I may note here that the said Act has been enacted to provide for the regulation of generation, transmission and distribution of electric power and matters connected therewith and incidental thereto. Now the Chairman of the Respondent No. 1 is appointed by the Federal Government and proviso to Section 3(1) prefers that the Chairman shall preferably be a person who is or has been a Judge of a High Court or the Supreme Court of Pakistan. There are four Members representing each of the Provinces of the country. The meetings are to be held in accordance with Section 5, the prescribed quorum being three while Section 6, requires that all orders, determinations and decisions of the Authority shall be taken in writing and shall identify the determination of the Chairman and each member. Section 7(1) lays down in absolutely unambiguous terms that the Respondent No. 1 shall be exclusively responsible for regulating the provision of electric power services. Under Section 7(3)(a) the Respondent No. 1 shall determine tariff, rates, charges and other terms and conditions for supply of electric power services by the generation, transmission and distribution companies and recommend to the Federal Government for notification. Section 7(6) enjoins upon the Respondent No. 1 that in performing its functions under the said Act, it shall, as far as practicable, protect the interest of consumers and companies providing electric power services in accordance with guidelines, not inconsistent with the provisions of the said Act, to be laid down by the Federal Government.
Now Section 31 of the said Act deals with the tariffs and I deem it appropriate to reproduce the said provision hereunder:--
"31. Tariffs.--(1) As soon as may be, but not later than six months from the commencement of this Act, the Authority shall determine and prescribe procedures and standards for determination, modification or revision of rates, charges and terms and conditions for generation of electric power, transmission, inter-connection, distribution services and power sales to consumers by licensees and until such procedures and standards are prescribed, the Authority shall determine, modify or revise such rates, charges and terms and conditions in accordance with the directions issued by the Federal Government.
(2) The Authority while determining the standards referred to in sub-section (1) shall:--
(a) protect consumers against monopolistic and oligopolistic prices;
(b) keep in view the research, development and capital investment programme costs of license;
(c) encourage efficiency in licensees operations and quality of service;
(d) encourage economic efficiency in the electric power industry;
(e) keep in view the economic and social policy objectives of the Federal Government; and
(f) determine tariff so as to eliminate exploitation and minimize economic distortions.
(3) The procedures establishes under sub-section (1) shall include:--
(a) time frame for decisions by the Authority on tariff applications;
(b) opportunity for consumers and other interested parties to participate meaningfully in the tariff approval process; and
(c) protection for refund, if any, to consumers while tariff decisions are pending.
(4) Notification of the Authority's approved tariff, rates, charges and other terms and conditions for the supply of electric power services by generation, transmission and distribution companies shall be made, in the official Gazette by the Federal Government upon intimation by the Authority:
Provided that the Federal Government may, as soon as may be, but not later than fifteen days of receipt of the Authority's intimation, require the Authority to reconsider its determination of such tariff, rates, charges and other terms and conditions. Whereupon, the Authority shall, within fifteen days, determine these a new after reconsideration and intimate the same to the Federal Government."
Now, admittedly, the Respondent No. 3 filed a tariff petition on 26.6.2003. This petition is a detailed document and is Annex-A to this writ petition. Amongst others, the petitioner also filed its submissions which are Annex-B. Vide letter dated 2.7.2004 (Annex-C) the respondent informed the petitioner that a determination has been and has been sent to the Federal Government for notification in the official Gazette. A copy of the determination was also sent. A review motion was filed by the Respondent No. 3 on 13.7.2004, the same was considered and a determination was made. Vide letter dated 12.11.2004 the petitioner was informed by the Respondent No. 1 that a final order has been passed and communicated to the Federal Government vide letter dated 22.10.2004 (Annex-E). This letter is at page 41 of the paper book and decision is at pages 42 to 65 of the paper book.
Now under Section 31(4), noted above, the Federal Government is required to make a notification in the Official Gazette upon intimation by the Authority of the tariff, rates, charges and other terms and conditions of the supply of electric power services as approved.
Now the proviso the sub-section (4) of Section 31 of the said Act, vests the Federal Government with a power to require the Respondent No. 1 to re-consider its determination of such tariff, rates, charges and other terms and conditions. However, this power is to be exercised within 15 days of the receipt of the intimation. In case the Federal Government so requires, the Respondent No. 1 is then to make a determination after re-consideration and to intimate the same to the Federal Government within 15 days of the said requisition. It is a fact admitted on all hands that no such requisition was made by the Federal Government within or even after 15 days of the receipt of the intimation of the determination made by the Respondent No. 1.
To my mind upon a plain reading of the said Section 31 and the other relevant provisions of the said Act, already stated above, the Federal Government is bound by said law to notify the determination of the tariff as intimated by the Respondent No. 1 unless and until, of course, it considers it appropriate to make a requisition upon the Respondent No. 1 to re-consider the matter which is not the case in hand.
Now coming to the only objection raised on behalf of Respondent No. 3 to this writ petition i.e. the locus standi of the petitioner to file the same, I have already noted above that the petitioner was called upon to file its submissions and was duly intimated of the determination made by the Respondent No. 1. I may further refer here to Section 31(3)(b) of the said Act which lays down that an opportunity is to be provided to customers and other interested parties to participate meaningfully in tariff approval process. There is no denial that the petitioner is a body of such customers. The objection is, therefore, rejected. So far as the said judgment in the case of Pakistan Human Rights is concerned, no personal injury was shown and the petition was filed to be pro bono publico which is not the case here.
The writ petition accordingly is allowed and the Respondents Nos. 2 and 4 are directed to issue a notification in terms of Section 31(4) of the said Act of 1997 as per the determinations intimated by the Respondent No. 1 in the matter of the tariff petition and then review motion filed by Respondent No. 3. The needful to be done within 15 days under intimation to the Deputy Registrar (Judicial) of this Court. No orders as to costs.
(Rao Farid ul Haque Khan) Petition allowed.
PLJ 2006 Lahore 1366
Present: Syed Hamid Ali Shah, J.
MUHAMMAD SARWAR and 8 others--Petitioners
versus
PROVINCE OF PUNJAB and 4 others--Respondents
W.P. NO. 12092 of 2005, decided on 31.3.2006.
West Pakistan Board of Revenue Act, 1957—
----S. 8--Essentials--Power of review when available--Power to review is available only; on discovery of new and important matter which was not within the knowledge at the time when the order was passed--Aggrieved party has applied for review; notice to the party, effected thereby, was given and the parties are heard--Where none of the conditions have been complied with, the impugned order was passed in violation of the provisions of Section 8 of the Act, 1957. [P. 1377] E & F
West Pakistan Board of Revenue Act, 1957--
----S. 8--Exercising power of review by BOR--Reference of property to Punjab Privatization Board--No proof regarding reference to Punjab Privatization Board, on the contrary evidence that land in-question never formally referred was available--Punjab Privatization Board acknowledging that land in question was never under consideration for its sale through auction--Held: Respondent has proceeded to review the order on such ground without any substance or proof. [Pp. 1375 & 1376] A
West Pakistan Board of Revenue Act, 1957--
----S. 8--Rejection of claim of petitioner by Governor on the basis of summary--Scope of--Suppression of facts in summary to the Governor, making the summary defective--Scope--Orders of High Court passed in favour of the petitioners and letter of respondent admitting that land in question has not been taken over the Punjab Privatization Commission not referred anywhere--Effect--The material information was suppressed, which made the summary defective--Held: Review on the basis of such defective summary was thus exceptionable. [P. 1376] B & C
West Pakistan Board of Revenue Act, 1957--
----S. 8--Review on the ground of fraud or misrepresentation--Fraud or misrepresentation was not established--Held: No one has denied or disputed the entitlement of the petitioner for allotment of land--Bald allegation of commission of acts of fraud or misrepresentation with any proof thereof in getting land allotted, is no ground to justify review. [P. 1376] D
West Pakistan Board of Revenue Act, 1957--
----S. 8--Limitation period--Review after lapse of 90 days--Effect--Order review after the lapse of 90 days--Held: No review after the stipulated period of limitation is competent. [P. 1377] G
West Pakistan Board of Revenue Act, 1957--
----Preamble--Review of judicial order through administrative order--Scope--Power exercised on judicial side cannot be set at naught through exercising the power on the administrative side--Held: Review proceedings were initiated on the administrative side in respect of an order which was passed on the judicial side--There was no cavil with the proposition that a judicial order was not liable to be set aside through an administrative order. [P. 1377] H
1987 SCMR 503; PLD 1964 SC 410; 1990 ALD 655; PLD 1981 SC 94; 1991 SCMR 2307; AIR 1941 Lahore 212; PLD 1961 (W.P.) Karachi 1956; 1984 CLC 17; 2005 YLR 298; PLD 1988 416; PLD 2006 SC 188; 1993 MLD 2454; PLD 1974 SC 151; PLD 1991 SC 691; 2004 MLD 1053; PLD 1997 SC 351; PLD 1958 SC (Pak.) 104 and 1987 SCMR 503 ref.
Ch. Imdad Ali Khan and Ch. Sameer Ijaz Assisted by Waseem Mahmood and Rana Maqbool Ahmad, Advocates for Petitioners.
Mr. Khadim Hussain Qaiser, Addl. A.G. for Respondent No. 1.
Mr. Ahmad Awais, Advocate for Respondents Nos. 2 and 3.
M/s. Muhammad Ashraf Wahla and Mr. Jahazeb Wahla, Advocate for Respondent No. 4.
Ch. Saleem Jahangir Chatha, Advocate President District Bar Association Faisalabad with Talib Hussain Chatha, Advocate in person.
Mr. Khalid Bashir, Advocate for Respondent No. 5.
Date of hearing: 2.3.2006.
Judgment
This judgment shall dispose of W.Ps. Nos. 12092, 12093, 12110 and 12111 of 2005 as common questions of law and facts are involved in these petitions.
Ali Muhammad and Khushi Muhammad sons of Pir Bakhsh (predecessors of the petitioners) were allotted land under "Grow More Food Scheme of 1956" under the Colonization of Government Lands (Punjab) Act, 1912, through order dated 27.11.1956 by the then District Collector, Lyllepur (now Faisalabad). The allottees developed the land according to terms of allotment under the Scheme, they are in it's possession since allotment. Another Scheme was announced by the Provincial Government, through memorandum dated 22.10.1962, to sell the land to the allottees of "Grow More Food Scheme". The predecessors of the petitioners submitted an application for the sale of the land in their possession under the Scheme but the request was declined by functionaries of Respondent No. 1 on the plea that the land in question fell in prohibited zone, i.e. within five miles of the outer limit of Municipal Committee Faisalabad. The Provincial Government, however, issued memorandum dated 20.5.1971 to grant alternate land to those allottees of Grow More Food Scheme, whose lands fell within the prohibited zone. An application was filed for allotment/sale of alternate land. The Deputy Commissioner/Collector Faisalabad through order dated 15.11.1973, declared the predecessors of the petitioners, eligible for alternate land, resultantly, time was granted to the petitioners for submission of choice of alternate land. The petitioners, through application, submitted their choice of alternate land, alongwith Fard Jamabandi of Chak No. 125-RB, Tehsil Chak Jhumra District Faisalabad. The Collector Faisalabad allotted the land in Chak No. 125/R.B to the petitioners vide order dated 23.1.1988 but allotment could not be materialized in favour of the petitioners, firstly, as it had already been allotted and Commissioner Faisalabad Division vide order dated 27.12.1993 decided the appeal in favour of the allottees. Secondly, this land was also situated within prohibited zone. The land allotted to the petitioners and possessed by them in Chak No. 208-RB, under the Grow More Food Scheme, in the meantime, was sold by Board of Revenue to Faisalabad Lawyers Housing Society Limited/Respondent No. 4, through a private treaty.
The petitioners, called in question the said sale, in Writ Petitions Nos. 5101 to 5105 of 1991, whereby through order dated 16.11.1991, the respondents were restrained to dispossess the petitioner till such time they are accommodated elsewhere. Collector, Faisalabad subsequently proceeded for the eviction of the petitioners in ex-parte proceedings, against which the petitioners once again approached this Court through W.Ps No. 16800 to 16804 of 1997. The respondents in these petitions, were restrained vide order dated 22.7.1997 to take possession and deliver the same to Respondent No. 4 unless an alternate land of same quality is allotted to the petitioners and possession thereof is delivered to them. The respondents were directed to associate the petitioners in the proceedings for selection of alternate land for allotment. The above writ petitions were finally decided on 12.1.1998, wherein the direction to grant the alternate land to the petitioners within a period of eight weeks, was given. The petitioners pursuant to the orders, applied to Collector Faisalabad on 16.4.1999, for the allotment of vacant land attached with Irrigation Rest Houses in Tehsil Jaranwala in Chaks Nos. 39-GB, 66-GB, 103-GB and 233-GB. The reports were called from concerned revenue officials, who reported that the land, claimed by the petitioners for allotment, is surplus land and Irrigation Department has surrendered the same. The land was ready for allotment being outside the prohibited zone. It was also reported that the land has been included in the list sent to the Punjab Privatization Board for auction. DOR Faisalabad allotted barren, un-reclaimable and un-irrigated land in Chaks Nos. 148 and 154-RB Tehsil Chak Jhumra to the petitioners as alternate land, without associating the petitioners. While allotting the land the order of eviction of the petitioners was passed, so that the same be delivered to Respondent No. 4. The petitioners filed four revision petitions, before Board of Revenue u/S. 164 of the Punjab Land Revenue Act, 1967 read with Section 7 of the Act of 1912. Senior Member, BOR while entertaining the revision petitions, called fresh reports from district administration Faisalabad. It was reported to the Board of Revenue that the land in Chaks Nos. 39, 66, 103 and 233-GB is available and this land was never referred to the Punjab Privatization Board for auction. EDO(R), Faisalabad categorically conveyed to Board that no other land in Faisalabad District is available for allotment to the petitioners, as alternate land having the same value. He in his report dated 16.9.2004, submitted that land in question, falls outside prohibited zone and is available for allotment, Member (Colonies) in compliance with orders passed by this Court, in various Writ Petitions, kept in view report of EDO(R), Faisalabad, accepted revisions vide order dated 17.2.2003 and ordered that suit land be allotted to the petitioners. Member (Colonies) BOR subsequently passed detailed order dated 20.4.2005, whereby directed District Officer (Revenue), Faisalabad to process the case in the light of orders passed by this Court and decide the matter of allotment within one month. The Collector Faisalabad thereafter, made the allotment to the petitioners through order dated 19.5.2005. D.O.(R) Faisalabad reported compliance to Member (Colonies) BOR, while DDO (Colonies) issued Dakhal warrants to the petitioners on 8.6.2005. The petitioners were delivered possession of the land. The petitioners when approached the concerned revenue authorities for recording the report of Dakhal in Roznamcha, found that the allotment order in favour of the petitioners, has been withdrawn through order dated 9.6.2005, passed by Respondent No. 2 by exercising suo moto powers of review.
Suo moto power was exercised by Respondent No. 2, purportedly under Section 21 of the General Clauses Act, 1897 (subsequently, amended as Section 20 of the General Clauses Act, 1956) on the grounds; that the Governor of Punjab has rejected the claim on 26.2.2001; that the order of allotment was processed by the petitioners through fraud and misrepresentation; that allotted land has already been referred to Privatization Board for disposal and it was not available for allotment to the petitioners. Order dated 9.6.2005 passed in review by Respondent No. 2 has been called in question, through instant petitions.
Learned counsel for the petitioners has contended that the respondents were directed by this Court through orders dated 16.11.1991, 22.7.1997 and 12.1.1998 to refrain from dispossessing the petitioners from their lands unless an alternate land of the same value and quality is allotted to them. The Court directed that while allotting the alternate land the petitioners be associated. The petitioners were allotted land by Member BOR, after calling from D.C/Collector Faisalabad and other relevant authorities, the reports relevant for the purposes of allotment. Once the allotment was made in favour of the petitioners and possession thereof was delivered to the petitioners through Dakhal, the land cannot be cancelled, legally. The power to recede does not vest with the respondent, after the allotment order and delivery of possession. Learned counsel has further submitted that Respondent No. 2 has taken suo moto action for cancellation of land to the petitioners, statedly on the ground that fraud has been committed, by concealing the fact that the land was referred to the Punjab Privatization Board. He added that the land was never referred to the Punjab Privatization Board for it's disposal, which fact is evident from the reply of the Board/Respondent No. 5, submitted in these proceedings. Learned counsel has contended that the District Administration might have proposed to refer the land to Punjab Privatization Board, regarding which the Patwari reported to Collector Faisalabad. The Punjab Privatization Board through letter dated 27.12.2002, addressed to Member BOR, has conveyed that as per it's record (Punjab Privatization Board), BOR has never referred the land in question to Punjab Privatization Board. The land is not under consideration for sale by Punjab Privatization Board. Learned counsel has then submitted that basis of the action against the petitioners was that the land has been handed over to Punjab Privatization Board for it's auction which fact has been denied by Punjab Privatization Board itself through their reply to these writ petitions. If the basis of an action are proved wrong or false, the whole structure raised thereon is liable to fall down alongwith it's foundation.
Learned counsel for the petitioners has emphasized that the power to review vests with the Member BOR u/S. 8 of the West Pakistan Board of Revenue Act, 1957. The power of review can be exercised according to Section 8, on discovery of new information, secondly on the application of an aggrieved person, thirdly, after giving notice to the parties and after hearing them. Learned counsel has further submitted that all the three requirements of Section 8 of the Act were not met. The information that the property was included in the list of properties referred to Punjab Privatization Board was already available before Senior Member BOR, when he passed the original order. The order was reviewed without any notice to the petitioners and the power was exercised suo moto without any application from the aggrieved party. The suo moto action was taken after the lapse of the period of 90 days from the date of the decree/order. The order is not sustainable on this ground alone. Learned counsel has then argued that the original order was passed by Senior Member BOR while exercising the judicial power, which was subsequently reviewed through an administrative order. He has referred to the cases of "Muhammad Ibrahim and 3 others vs. Municipal Committee, Chiniot through its Chairman" (1990 ALD 655), "Chuttan and another vs. Sufaid Khan and another" (1987 SCMR 503) and "Commissioner of Income Tax, East Pakistan vs. Fazlur Rahman" (PLD 1964 SC 410) to contend that the order passed on judicial side, cannot be set at naught through administrative order. It was contended that the concept of suo moto review is alien to the provisions of Section 8 of the Act. Learned counsel has further submitted that power to review is substantive relief and is always a creation of the statute alone. It cannot be exercised unless it is expressly provided. Learned counsel in support of this contention has placed reliance on the cases of "Muzaffar Ali vs. Muhammad Shafi" (PLD 1981 SC 94), "Riaz Hussain and others vs. Board of Revenue and others" (1991 SCMR 2307), "Jiwan Das vs. Rakhmat Din and another" (AIR 1941 Lahore 212), "Muhammad Yaqub vs. Saeed Shah" (PLD 1961 (W.P.) Karachi 1956), "Umar Din and others vs. Member (Colonies), Board of Revenue and others" (1984 CLC 17) and "Hameed Akhtar vs. Member (Colonies), Board of Revenue, Punjab, Lahore and another" (2005 YLR 298). Learned counsel while referring to Section 10(4) of the Colony Act, 1912 and the case of "Muhammad Zaman and 8 others vs. The Minister for Consolidation and 3 others" (PLD 1988 Lahore 416) has contended that power to allot and give possession of the Government land vests only in the Collector of the District and the allotment by Collector is not required under the law to be re-opened or set at naught by the Member. Learned counsel has then submitted that successive orders of the High Court were not implemented. Such act was condemned by Hon'ble Supreme Court in the case of "District Officer Revenue, Kasur vs. Abdul Rehmat Shaukat" (PLD 2006 SC 188).
Learned counsel for Respondent No. 4 has adopted the arguments of learned counsel for the petitioners and has submitted that due to red tapism and vanity of Respondent No. 2 the petitioners as well as Respondent No. 4 are deprived of their lawful rights. Hundreds of applicants are deprived of allotment of their plots in Lawyers Cooperative Housing Society, due to fanciful order of Respondent No. 2.
Learned counsel for Respondent No. 5 in his arguments, stood behind the parawise comments submitted in the writ petitions. He has stated that neither any proper reference is pending nor any matter with regard to sale through auction of the disputed land, is under consideration before Punjab Privatization Board.
Learned counsel for Respondents Nos. 1 to 3, on the other hand, has submitted that the matter against the petitioners was re-opened on the application of one Mian Muhammad Iqbal, erstwhile President of District Bar Association, Faisalabad, who made a complaint that the property which was reserved for auction is being allotted to the petitioners, in gross neglect of the legal provisions. The Governor initiated inquiry and a summary dated 23.2.2003 was prepared and sent to the Governor whereby it was conveyed that the land has since been referred to Punjab Privatization Board for disposal, therefore, it is not available for further allotment. Learned counsel has further submitted that on approval of summary by the Governor, the earlier order of the Senior Member BOR was reviewed through the impugned order. He has referred to the list which was prepared regarding the Nazool land in the province and has stated that land under reference is mentioned at Serial Nos. 280, 281 and 282 in the said list, which sufficiently negates the claim of the petitioners that the land under reference has not been referred to Punjab Privatization Board. Learned counsel while referring to Article 129 of the Constitution of Islamic Republic of Pakistan, submitted that executive authority of the province vests in the Governor and the allotment was cancelled by the Governor, who in terms of Article 129 of the Constitution of Islamic Republic of Pakistan has competently exercised his authority. Learned counsel has further argued that the petitioners got allotted the disputed land through fraud which fact is evident from the impugned order passed in review by Respondent No. 2. He has added that the petitioners manoeuvred the allotment, despite the fact that the land was already referred to Punjab Privatization Board. He has placed reliance on case of "Mst. Sardar Begum and others vs. Bashir Ahmad and others" (1993 MLD 2454) to contend that the acts and omissions of a person are the determining factor to ascertain his intention as to fraud and misrepresentation. Learned counsel has contended that the petitioners have pleaded mala fides on the part of Respondent No. 2 but the mala fide has to be established through cogent proof. Presumption of regularity is attached to official acts. Learned counsel in this respect has found support from the case of "The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi vs. Saeed Ahmad Khan and others" (PLD 1974 SC 151). It was argued that allotment order is based on fraud and forgery, it can competently be set aside in review by Respondent No.
No discretionary jurisdiction in the writ jurisdiction can be exercised to allow the party to perpetuate fraud. The cases of "Muhammad Baran and others vs. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others" (PLD 1991 SC 691) and "Mst. Azam Jahan Ara Begum and 4 others vs. Commissioner, Sargodha Division, Sargodha and 2 others" (2004 MLD 1053) were referred in support of this contention. He has contended that scope of writ jurisdiction is limited, the discretionary jurisdiction cannot be exercised where grant of relief would amount to retention of ill-gotten gains. Learned counsel while referring to the cases of "Province of the Punjab through Secretary Health Department vs. Dr. S. Muhammad Zafar Bukhari" (1997 SC 351) and "Yousaf Ali vs. Muhammad Aslam Zia and 2 others" (PLD 1958 SC (Pak.) 104) has contended that the Court must not interfere in it's writ jurisdiction where it leads to injustice or aids to injustice.
I have heard the learned counsel or the parties and perused the material available on the record.
As far as the facts and background of these cases is concerned, the parties are not at variance. Assertions made in the petition in Paras 1 to 17, have been admitted in parawise comments/reply, of the respondents. It reflects from the perusal of the parawise comments and also through the arguments of the learned counsel for Respondents Nos. 1 to 3 that the order of allotment dated 24.4.2003 was reviewed by Respondent No. 2 through the impugned order on three scores: firstly, that disputed property has already been referred to Punjab Privatization Board; secondly, the Governor has already rejected the allotment. Thirdly, the petitioners have committed fraud and concealed material facts of reference of the property to Punjab Privatization Board for it's sale through auction.
It will be appropriate, before proceeding further, to refer to the orders/directions of this Court, regarding allotment of alternate land to the petitioners. Following orders have been passed earlier by this Court:
Writ Petitions Number
That the respondents should take necessary steps to deliver possession of the alternate lands allotted to the petitioners in Chak No. 125/RB and if for any reason, possession thereof cannot be delivered to them within a reasonable time, they should be accommodated elsewhere and allotted some other alternate lands. It may also be pertinently observed that it would be just and proper not to dispossess the petitioners from the lands in dispute of which they claim to be in possession since 1956 till such time that they are accommodated elsewhere either by giving them physical possession of lands allotted to them in Chak No. 125/RB or making fresh allotments of some other lands.
In the meantime, possession of the petitioners over the land in dispute shall neither be disturbed nor the same shall be delivered to Respondent No. 4 unless an alternate land of the same quality is allotted to the petitioners and possession of the same delivered to them. In the proceedings for selection of alternate land for allotment to the petitioners, the petitioners shall also be joined so that there may not subsequently be a dispute about the nature and quality of the land.
Rather than deciding the controversy on merits in this Court at the first instance, it does seem proper to direct Respondent No. 2 to do so within a time frame so that the matter is not needlessly lingered on. While disposing of these petitions finally, it is directed that Respondent No. 2 will proceed to decide the question of grant of alternative land to the petitioners pending with him not later than eight weeks from today. In the circumstances, the parties are left to bear their own costs.
I will now take up the first ground of review that land has already been referred to the Punjab Privatization Board. Member, BOR when allotted land to the petitioners, called a report from District Collector, Faisalabad. The concerned Patwari in Para-4 of his report dated 8.5.1999, pointed out that out of 110 Kanal 13 Marlas, land measuring 16 Kanals 13 Marlas comprised of construction and roads, while 94 Kanals of land has been referred to Punjab Privatization Board. Similar report was forwarded to the Deputy Commissioner, who ultimately conveyed it to the Member (Colonies) BOR, who on receipt of report, required from Secretary Punjab Privatization Board to indicate whether the land in question is still available or disposed of by Punjab Privatization Board. The report of the Punjab Privatization Board was placed on the file. It is evident from the order of Member BOR dated 6.1.2003 that letter from Punjab Privatization Board dated 27.12.2002 was received wherein it was conveyed that the BOR had never referred Khasras Nos. 87, 70, 143 and 127 located in Chaks Nos. 39-GB, 66-GB, 103-GB and 233-GB respectively to Punjab Privatization Board for auction. Punjab Privatization Board/Respondent No. 5 submitted report/comments in this Court, on 8.11.2005 through Khalid Bashir, Advocate, affirming therein that land in question, has never been referred to it for sale through open auction. Respondents Nos. 1 to 3, have not produced any evidence that the Punjab Privatization Board has taken the delivery of land consequent upon it's reference by BOR Punjab. The only evidence, by Respondents Nos. 1 to 3, was list of Nazool land prepared by BOR Punjab for Punjab Privatization Board, in which the property in question is mentioned at Serial Nos. 280 to 282. There is no proof that any reference was made to Punjab Privatization Board, rather the evidence to the effect that the land in question was never formally referred to Punjab Privatization Board, is available on record. Punjab Privatization Board has acknowledged that the land in question is not under consideration for it's sale through auction. Perusal of letter dated 27.12.2002 by Punjab Privatization Board, parawise comments filed by Punjab Privatization Board in these petitions and order dated 6.1.2003 of the Member BOR, reveal that land was never referred to Punjab Privatization Board. Respondent No. 1 has proceeded to review the order on this ground without any substance or proof.
Coming to the second ground that the order was reviewed as the Governor has rejected the claim of the petitioners. The summary sent to the Governor was not formally approved. Notings in the summary show that the Governor has seen the summary but no direction was passed. Perusal of summary reveals that orders of this Court passed in favour of the petitioners, were suppressed. Letter of Respondent No. 5 that land in question has not been taken over by the Punjab Privatization Board, was not referred anywhere in the summary. The summary is silent as to the fact that no other land of same quality is available in District Faisalabad for allotment to the petitioners, according to the orders of this Court. The material information was suppressed, which makes the summary defective. The review on the basis of such defective summary is thus exceptionable. The order was thirdly reviewed by the Member BOR on the ground that the petitioners have committed fraud and misrepresentation. No specific instance in this respect has been mentioned. The petitioners were held entitled to allotment of alternate land on 15.11.1973. Their entitlement is not in dispute. They moved from pillar to post for the allotment of land and despite clear directions of this Court, alternate land of the same value and quality which the petitioners possessed under Grow More Food Scheme, has not been allotted to them. The land allotted to them is neither under consideration nor referred to Punjab Privatization Board. No one has denied or disputed the entitlement of the petitioners for allotment of land. Bald allegations of commission of acts of fraud or misrepresentation with any proof thereof in getting land allotted, is no ground to justify review. All the material, in this respect, was available upon which order of allotment was passed in favour of the petitioners.
Respondent No. 2 has passed the impugned order by exercising the suo moto power of review. Was such power or authority available to him? To resolve this issue, a reference to Section 8 of the Act is essential, which is reproduced below:
"8. (1) Any person considering himself aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made, or on account of some mistake or error apparent on the face of the record (or for any other sufficient reason) desires to obtain a review of the decree passed or order made against him, may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require.
(2) Every application for a review of a decree or order under sub-section (1) shall be made within ninety days from the date of that decree or order."
The above provision clearly stipulates that power to review is available only: on discovery of new and important matter which was not within the knowledge at the time when the order was passed; the aggrieved party has applied for the review; notice to the party, effected thereby, is given and the parties are heard. None of the above conditions in the instant case has been complied with. The order was reviewed without notice to the petitioners, without any application on behalf of the aggrieved person. No new or important matter was discovered to justify review and opportunity of being heard was denied. The impugned order was passed in violation of the provisions of Section 8 of the Act, 1957. Order dated 17.2.2003, was passed in the revisions Bearing No. RORs Nos. 1511/2002 to 1514/2002, was reviewed after the lapse of the period of 90 days. No review after the stipulated period of limitation is competent. The power by virtue of amendment in Section 10(1)(2) of the Colony Act, 1912 to grant any land or review such allotment. The Provincial Government or the Governor had this power till 14.12.1961 before the said amendment. The revisional power u/S. 4(2) of the Punjab Board of Revenue Act, 1957, vests with Board of Revenue. The review proceedings were initiated on the administrative side in respect of an order which was passed on the judicial side. There is no cavil with the proposition that a judicial order is not liable to be set aside through an administrative order. There is plethora of judgments in this respect. Hon'ble Supreme Court of Pakistan in the case of "Chuttan and another vs. Sufaid Khan and another" (1987 SCMR 503) (referred above) has also laid down that power exercised on the judicial side cannot be set at naught through exercising the power on the administrative side, more so, when the order on the judicial side had attained finality.
As a consequence of above discussion, I have found that the impugned order suffers from various legal defects; it contravenes provision of Section 8 (ibid); judicial order has been reviewed through an administrative order; it contravenes the orders passed in favour of the petitioners in different writ petitions; that power of review was exercised after the lapse of prescribed period of limitation, no power of suo moto review was available. Order was passed without any notice to the petitioners. Respondent No. 2 while passing the impugned order has ignored that the petitioners are in possession of land under a valid allotment order, under a valid scheme of the Government, their entitlement has not been denied at any stage; the petitioners have been granted relief by this Court through three different orders and grounds which were made the basis of the impugned order were factually incorrect. Respondent No. 2 failed to take into consideration the communication addressed by EDO (R) Faisalabad that no land in Faisalabad District of same value is available for allotment, and also the information available on record that land in question has not been referred to Punjab Privatization Board and it's sale is not under consideration with Punjab Privatization Board. The impugned order being illegal, passed by Respondent No. 2 in excess of his authority, as such the same is not legally tenable and is set aside.
For the foregoing, these petitions are allowed, the orders passed in review dated 9.6.2005 and 11.6.2005 are declared to have been passed without any lawful authority and with no legal effect. Resultantly, orders dated 17.2.2003, 20.4.2005 and 19.5.2005 stand restored. The District Collector is directed to give effect to allotment which has been made to implement order passed in earlier petitions (W.Ps. Nos. 16800 to 16804 of 1997) and make up the deficiency, if any, without fail. No order as to costs.
(Rao Farid ul Haque Khan) Petitions allowed.
PLJ 2006 Lahore 1378
Present: Muhammad Akhtar Shabbir, J.
Dr. TAHIR MAHMOOD AWAN--Petitioner
versus
TARIQ MAHMOOD and another--Respondents
W.P. No. 4899 of 2006, decided on 18.5.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. XVI, R. 9--Constitution of Pakistan, 1973, Art. 199--Appointment of Local Commission--Controversy--Held: Where controversy could be resolved by producing evidence by the parties, then spot inspection through local commission was not permissible--Petitioner could not seek appointment of local commission for his own convenience when not in position to prove his plea through evidence--It is the Court which has to decide its necessity. [Pp. 1379 & 1380] A & B
2001 YLR 919; 2001 YLR 1911 and 2003 SCMR 1351 ref.
Malik Noor Muhammad Awan, Advocate for Petitioner.
Date of hearing: 18.5.2006.
Order
Brief facts giving rise to the present writ petition are to the effect that Tariq Mahmood plaintiff-respondent herein has filed a suit for permanent injunction with regard to the land in dispute restraining the respondents from raising any construction and changing the nature of the property. He asserted that he is in possession over the said property. The suit was contested by the petitioner, who filed his written statement stating that he is in possession over the property and he has already raised his construction. The petitioner has applied to the trial Court for appointment of the Local Commissioner to ascertain his possession, which was declined by the trial Court on 28.11.2005. Feeling aggrieved the petitioner preferred a revision petition which came up for hearing before the learned Addl. District Judge, Mianwali, who vide order dated 10.4.2006 dismissed the same. Both these orders have been assailed by the petitioner through the instant writ petition.
The learned counsel for the petitioner contended that the controversy between the parties could be ascertained at the preliminary stage by appointing a Local Commissioner and both the Courts below have illegally declined the prayer made by the petitioner.
I have heard the learned counsel for the petitioner and perused the record.
Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction. The local investigation is usually ordered either for clarifying evidence on record or for obtaining on the spot information. Sometimes it is necessary that local investigation should be made to have a clear view and just decision of the matter. It may be issued in any case where the Judge deems it fit to do so. The discretion lies with the Court, whether to appoint a local commission or not and Court was not bound to appoint local commission in all cases. Where controversy could be resolved by producing evidence by the parties, then spot inspection through local commission was not permissible. The Court itself has to decide necessity of local investigation. Reference in this context can be made to the case of Kishwar Banoo vs. Metropolitan Corporation, Lahore (2003 CLC 397). In case any question that who has made the construction on the property in dispute can only be proved by producing of evidence and the Court has no jurisdiction to ascertain possession or construction over the property through the local commission and the appointment of the local commission was the prerogative of the Court and the power of the Court to decide a matter cannot be delegated to the local commissioner. Reference in this context can be made to the case of Muhammad Saeed vs. Muhammad Akram Munir (2001 YLR 919). The local investigation through the local commission could not be a substitute of legal evidence and an order or judgment could not be based on the local inspection unless the parties agreed to adopt such a course. Reference in this context can be made to the case of Akbar Dad Khan vs. Muhammad Sharif (2001 YLR 1911). Both the Courts below have not thought it fit to appoint a local commissioner in the matter in dispute and the party who cannot establish his case by producing evidence the local commissioner cannot be appointed to fill in the lacuna. In this case the dispute is with regard to the possession which is a question of fact that has to be proved by the party who alleges the possession. The petitioner could not seek appointment of local commission for his own convenience when not in position to prove his plea through evidence as laid down in the case of Jalal Khan and 10 others vs. Khandoo Malik and 24 others (2003 SCMR 1351). Both the Courts below have rightly declined the prayer of the petitioner. The learned counsel for the petitioner has not been able to point out any illegality or jurisdictional defect or that the impugned orders have been passed without lawful authority. The learned counsel for the petitioner has miserably failed to persuade the Court to interfere with the impugned orders in exercise of its Constitutional jurisdiction.
For the foregoing reasons this writ petition being devoid of force is dismissed in limine.
(Javed Rasool) Petition dismissed.
PLJ 2006 Lahore 1380
Present: Fazal-e-Miran Chauhan, J.
GHULAM RASOOL--Petitioner
versus
MEMBER (JUDICIAL-IV) BOARD OF REVENUE, PUNJAB, LAHORE and another--Respondents
W.P. No. 5377 of 2006, decided on 7.7.2006.
Lambardar--
----Appointment of--Held: Respondent found to be fit young educated person appointed by D.O.R. and also by M.B.R.--No one had a vested right in such matter--Competent authorities ultimately selected one for the post, which could not be interfered with in exercise of writ jurisdiction--Petition dismissed. [P. 1381] A, B, C & D
Rana Munir-ul-Hassan, Advocate for Petitioner.
Date of hearing: 7.7.2006.
Order
The factual resume gleans to this petition is that Respondent No. 2 filed application for appointment of Lambardar being son of. Muhammad Tufail (deceased) Lambardar. The petitioner on his own behalf and on behalf of 101 villagers requested for his appointment of Lambardar of the village. Ultimately District Revenue Officer, Sialkot appointed Respondent No. 2 as Lambardar vide order dated 22.10.2003. The petitioner being aggrieved assailed the said order before the Executive District Officer (Revenue), who vide order dated 24.7.2004 accepted the appeal and set aside the order dated 2.10.2003. Respondent No. 2 assailed the said order before the Member Board of Revenue, Punjab, who vide order dated 29.3.2006 accepted the appeal and set aside the impugned order, hence this petition.
Heard.
Nothing is available on the record to submit claim of the petitioner that he had a preferential right of appointment as Lambardar. Respondent found to be the fit young educated person was appointed by the District Revenue Officer, Sialkot as Lambardar vide his order dated 22.10.2003. This order was set aside by EDO (R) in appeal simply on the ground that he having more experience in age would be more suitable person. But the order was again set aside by Member Board of Revenue and respondent was found to be more fit and suitable person on the basis of his young age and education. The revenue authority having the exclusive jurisdiction had reached a conclusion after considering the factual and legal aspect of the case. No one has a vested right to be appointed as Lambardar. It is for the relevant authorities to select persons best suited for purpose with a view to facilitate performance of administrative functions of Lambardar. The competent authorities on revenue side after considering merits of both sides ultimately selected one for such post. The exclusive jurisdiction so vested with the revenue authorities cannot be interfered with in exercise of writ jurisdiction by this Court. No legal infirmity or jurisdictional error was pointed out in appointing respondent as a Lambardar. Constitutional petition being devoid of force is hereby dismissed.
(Javed Rasool) Petition dismissed.
PLJ 2006 Lahore 1381 [Multan Bench Multan]
Present: Muhammad Sayeed Akhtar and Tariq Shamim, JJ.
Syeda SHAZIA IRSHAD BUKHARI--Petitioner
versus
VICE-CHANCELLOR UNIVERSITY OF HEALTH SCIENCES, LAHORE and 2 others--Respondents
I.C.A. No. 68 of 2006 in W.P. No. 1331 of 2006, decided on 29.5.2006.
Regulations of the University of Health Sciences Lahore, 2004--
----S. 3--Regulations--Educational Institution--Eligibility for further medical education after exhausting three chances--Held: First Professional MBBS comprises of two independent parts and for each part provides three consecutive chances, availed or unavailed--Left over chances of the first part cannot be carried over to the second part--Fourth chance cannot be granted to the appellant after availing three chances--Appeal dismissed. [Pp. 1382 & 1383] A & B
Mian Arshad Ali, Advocate for Appellant.
Date of hearing: 29.5.2006.
Order
This intra Court appeal is directed against the order dated 9.5.2006 passed by the learned Judge in Chamber dismissing the Constitutional petition of the appellant.
The appellant was a student of First Professional Part-I M.B.B.S. in Nishter Medical College, Multan. She exhausted all the three chances prescribed by Rules/Regulations of the University of Health Sciences for clearing the M.B.B.S. First Professional Part-I Examination. She seeks fourth chance. Learned counsel for the appellant places reliance on PLD 2004 Peshawar 307 to contend that Part-I and Part-II of M.B.B.S. First Professional are in fact one class and the appellant is entitled to clear both the parts in six chances.
We have gone through the impugned order, perused the record and considered the arguments of the learned counsel for the appellant. The relevant Regulations of the University of Health Sciences are as follows:
"3. A candidate who fails to pass First Professional Part-I Examination in three consecutive chances, availed or unavailed, after becoming eligible for First Professional Part-I Examination shall cease to become eligible for further medical education.
The P.M.D.C. Regulations on the subject is as follows:-
"PMDC Regulation
Any student who fails to pass the first professional MBBS Part-I and Part-II examination in three chances or does not avail the chances despite being eligible for each examination shall cease to pursue further medical education in Pakistan."
The bare reading of the aforementioned regulations reveals that the First Professional M.B.B.S. comprises of two independent parts i.e. Part-I and Part-II and for each part three consecutive chances, availed or unavailed, have been provided for qualifying the same. The three chances are part specific and by no stretch of imagination can be carried forward. The language of the said regulations is unambiguous and leaves no doubt in our mind that the left over hances of the First Part cannot be carried over to the Part-II. The desired interpretation of the regulations cannot be achieved without doing violence to the language of the said regulations. The Hon'ble Supreme Court in the case of Muhammad Umar Wahid, etc. vs. University of Health Sciences etc. C.P. No. 45/2006 observed that the judgment of the Peshawar High Court "turned on the interpretation and the relevant provision in the prospectus and cannot be cited as laying down a general principal."
The point also stands settled in a Division Bench judgment passed on W.P. No. 1808/2006 and many other cases at the Principal Seat that the fourth chance cannot be granted to the student who has already availed three chances of the M.B.B.S. First Professional Part-I. We do not find any fallacy in the order of the learned Judge in Chamber. This appeal has no merit and is dismissed in limine.
(Javed Rasool) Appeal dismissed.
PLJ 2006 Lahore 1383 (DB)
Present: Mian Muhammad Najam-uz-Zaman & Sh. Javaid Sarfraz, JJ.
ASADULLAH--Petitioner
versus
MUHAMMAD TARIQ and 2 others--Respondents
W.P. No. 3854 of 2006, heard on 30.5.2006.
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----Ss. 7 & 23 --Pakistan Penal Code (XLV of 1860), Ss. 364, 324, 395, 147 & 148--Offence against Property (Enforcement of Hudood) Ordinance, 1979, S. 17--Transfer of case--Jurisdiction--Held: Election dispute could not be termed as a personal dispute as the dispute was not confined to the two persons or two families--In election matters, many peoples were involved--Terror so created in election disputes resulted in a feeling of insecurity amongst the public at large and a wave of panic and fear persist in the area--Action of accused was an act of terrorism and thus Anti-Terrorism Court would have the jurisdiction to adjudicate the case--Petition dismissed. [P. 1385] A, B & C
Mr. Masood Mirza, Advocate for Petitioner.
Mr. Muhammad Asghar Rokhri, Advocate for Respondents.
Date of hearing : 30.5.2006.
Judgment
Sh. Javaid Sarfraz, J.--Through this petition, the petitioner seeks transfer of case FIR No. 160 dated 27.10.2005 under Sections 364, 324, 395, 147, 148 PPC read with Section 7 of the Anti-Terrorism Act, 1997 and Section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, registered at Police Station Shah Nikdar District Sargodha, from Anti-Terrorism Court, Sargodha to a Court of ordinary jurisdiction.
Briefly, the facts of the case as narrated in the FIR are that paternal cousin of Respondent No. 1 namely Khuda Bakhsh was elected in the elections of Nazim Union Council No. 97 Sobhaga and on his success in election, Shafqat Hayat and other co-accused, mentioned in the FIR were un-happy and annoyed. On 27.10.2005 at 1.00 p.m., the said accused attacked the office of Union Council and insulted its newly elected Nazim namely Khuda Bakhsh accordingly, necessary proceedings were initiated against them. The Respondent No. 1 alongwith Muhammad Arif and Muhammad Nasir while riding on motorcycles from Mauza Qul District Jhang were proceeding towards their house, when they reached near the Railway crossing at around 4.30 p.m. Faisal S/O Shafqat Hayat armed with Kalashnikov, Asadullah alias Asdu armed with Kalashnikov, Imam Machi armed with Kalashnikov, Shabbir Hayat, Shaukat Hayat and 9/10 un-known persons, who had 4 cars parked at the place of occurrence, caught hold of them and they were pushed into the car. The wrist watch, documents and money were removed from the pocket of Muhammad Arif and the accused started firing indiscriminately and after abduction took them to near Pulli Tang. Faisal and others pulled them out from the car and started beating them, Faisal took out a knife and chopped off the nose of Muhammad Arif and put it on his hand and started beating and after committing this act of terrorism, all of them proceeded towards District Jhang.
The challan was filed before Anti-Terrorism Court, Sargodha where the petitioner/accused filed a petition under Section 23 of the Anti-Terrorism Act, 1997 for the transfer of case to a Court of ordinary jurisdiction, which was dismissed by the learned trial Court vide order dated 12.12.2005. Hence this constitutional petition.
Learned counsel for the petitioner contends that it was primarily a personal dispute between the parties relating to the election matter; that the provisions of Sections 6 & 7 of Anti-Terrorism Act do not attract in the present case; that the occurrence took place at a Pulli which was not a public place, therefore, the jurisdiction of the Anti-Terrorism Court stands ousted; that no fear and insecurity in the minds of the people was created, therefore, the case is to be heard by a Court of ordinary jurisdiction.
The petition has been vehemently opposed by the respondents. Learned Assistant Advocate General, Punjab assisted by the learned counsel of the complainant submitted that it was the trial Court which the best judge to determine whether the case was to be tried by a terrorist Court or not; that the action was to be seen whether it had caused insecurity in the minds of people or not; that the action of the accused was such that it created terror in the entire vicinity.
Arguments heard. Record perused.
Allegedly the petitioner alongwith his co-accused while taking the revenge of their defeat in the elections attacked the complainant party in the office of Union Council, which is not a private place and also chopped off nose of Muhammad Arif from his body and placed it in his hand. This was done at Pulli Tang of Mauza Mangla. Allegedly this was the message given by the petitioner and his co-accused to the public in general that any one who would contest elections against them could face a similar treatment, and this action definitely would have created terror in the locality. The election dispute cannot be termed as a personal dispute. As the dispute is not confined to the two persons or two families. In election matters, many persons are involved. A candidate contesting elections have scores of workers, who are working actively for him. Needless to add, that the candidates have lots of supporters also. It has also been seen that some candidates have political backing & support of certain vicinities. Therefore, terror so created in election disputes result in a feeling of insecurity amongst the public-at-large and wave of panic and fear persists in the area. Respectfully reliance is placed upon "Muhammad Mushtaq vs. Muhammad Ashiq and others" (PLD 2002 SC 841) in which it has been held as under:--
"It would thus appear that ordinary crimes are not to be dealt with under the Act. A physical harm to the victim is not the sole criterion to determine the question of terrorism. What is to be seen is the psychological effect produced by the violent action or with the potential of producing such an effect on the society as a whole or a section thereof. There may be a death or injury caused in the process."
[Underlining is ours]
The alleged action of the accused is an act of terrorism within the purview of Anti-Terrorism Act and thus the Anti-Terrorism Court shall have the jurisdiction to adjudicate this case.
For what has been discussed above, this petition stands dismissed.
(Fouzia Fazal) Petition dismissed.
PLJ 2006 Lahore 1386 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD RAMZAN etc.--Appellants
versus
ALLAH YAR through his LEGAL HEIRS and others--Respondents
R.S.A. No. 1 of 1999, heard on 2.2.2006.
Limitation Act, 1908 (IX of 1908)--
----S. 3--Dismissal of suit--Held: Plea was not taken in the written statement or in the memo of appeal and it had been taken after a period of 3 years--First appeal was still pending when the question was raised and the same had been answered in favour of the appellant, suit was required to be dismissed as provided by the law in mandatory terms--RSA allowed.
[P. 1388] A
Pir M. Asif Rafi, Advocate for Appellants.
Malik M. Afzal, Advocate for Respondents.
Date of hearing : 2.2.2006.
Judgment
Vide the registered sale-deed dated 11.8.1964, the appellants purchased the suit land on 2.10.1965, the respondents filed a suit for possession by pre-emption. According to him the land had in fact been sold for Rs. 1000/- but the amount of Rs. 4000/-, entered in the sale-deed is fictitious. He claimed to be a co-sharer as well as owner of the estate. The suit was contested by the appellants by denying the said allegations. Objection was taken to the correctness of the Court fee. I may note here that objection of limitation was not taken in the written statement which was filed on 8.4.1968. Issue were framed. Evidence of the parties was recorded. The suit was dismissed by the learned trial Court on 1.10.1966. On appeal by the respondents it was remanded on 20.6.1967. Thereafter it was decreed by the learned trial Court on 18.12.1968. Appeal filed by the respondents was allowed on 28.6.1969 with reference to the objection of Court fee and the suit was dismissed. RSA No. 242/70 was allowed by this Court on 11.4.1995 and the learned District Judge was directed to decide the appeal on merits. On 9.12.1998 learned District Judge, Layyah, dismissed the appeal filed by the appellants.
Learned counsel for the appellants contends that admittedly the suit was barred by time and the learned Court of first appeal has committed an error of law while refusing to dismiss the suit when under Section 3 of the Limitation Act, 1908, it was bound to do so. He relies on the case of Haji Muhammad Shah vs. Sher Khan and others (PLD 1994 SC 294). Learned counsel for the respondents, on the other hand supports the impugned judgment and decree of the learned District Judge with reference to the case of Muhammad Ishaq and others versus Shah Muhammad and others (1985 SCMR 799) and Allah Yar Khan versus Mst. Sardar Bibi and others (1986 SCMR 1957).
I have gone through the records with the assistance of the learned counsel for the parties. I may note here that these are reconstructed records. Now there is no dispute whatsoever that the suit was filed on 2.10.1965. It has also been noted by me above that objection of limitation is not contained in the written statement. Now during the course of hearing of the first appeal it was duly contended before the Learned District Judge that the suit having been filed on 2.10.1965 i.e. beyond the period of one year from the date of registration of the sale-deed is barred by time. Learned District Judge has found as a fact that the suit was filed on 2.10.1965. Thereafter with reference to the said to judgments being relied upon by the learned counsel for the respondent he has held that he will not dismiss the suit notwithstanding the fact that it is barred by time.
Now Section 3 of the Limitation Act is as follows:--
"Subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the First Schedule shall be dismissed, although limitation has not been set up as a defence".
It will thus be seem that notwithstanding the fact as to whether the opposite party raised an objection or defence of limitation, where the suit is found to have been instituted beyond the period prescribed by First Schedule it shall be dismissed. There is no manner of doubt in my mind that the suit was filed beyond the period of time prescribed in Article 10 of Limitation Act, 1908 read with Section 30 of the Punjab Pre-emption Act 1913 and Section 29 of the Limitation Act, 1908. This is also a finding of the learned District Judge. Now coming to the said judgments in the case of "Allah Yar Khan" and "Muhammad Ishaq and others" relied upon by the learned District Judge. I have examined both the said judgments. Now in the said case of "Muhammad Ishaq and others" dismissed the appeal. Now in the said case of Ishaq and others which again was an appeal against the judgment of this Court in letters patent appeal, leading opinion rendered by Hon'ble Mr. Justice Muhammad Afzal Zullah (as Hon'ble Chief Justice then was) is as follows:
"The ratio of the above two decisions is that it would be necessary for the appellate or revisional forum, where the Limitation Act is applicable, to examine under Section 3 of the Limitation Act whereafter the proceedings instituted before itself are within limitation. But it will not be under any legal obligation like the one visualized by Section 3 of the Limitation Act to do so if the plea of Limitation raised before it related to the institution of the original case/suit in the trial forum and/or the institution of any other matter before a lower forum. Thus if a question of limitation is raised before the High Court in connection with the institution of an appeal before itself beyond the period of limitation it will be the duty of the High Court to examine the same notwithstanding the fact that the other party did not raise or having raised, did not press the bar of limitation. But if the argument is that the High Court did not examine the question of limitation relatable to the filing (beyond limitation) of a suit/case before a lower forum then the High Court would not be obliged to examine the same unless it is raised before it because Section 3 of the Limitation Act does not place any such responsibility on the High Court regarding the proceedings of the lower forum--When exercising its power of review in appellate or other jurisdiction. The same would apply to the discretionary writ jurisdiction. This, however, it has to be pointed out, would not mean that if in the circumstances of such a case the High Court examines the question of limitation regarding the institution the proceedings before a lower forum without the same being raised before it, then it would be committing any illegality--the emphasis being only on the point that is not under a legal duty to do so. If, therefore, it fails to do so when the party concerned did not raise it and the argument is advanced in this Court, that the High Court should have examined it suo motu, as legal duty, it (this Court) would not be obliged to interfere"
Now it will be noted that according to above dictum of the Hon'ble Supreme Court as well lower appellate forum when called upon to examine the question of limitation is found to do so. However, if that question is not raised it is absolved to examine the same. Now in the present case first appeal was heard by Learned District Judge. Question was duly raised. Factual aspects were answered in favour of the appellant still learned District Judge refused to dismiss the suit which he was bound to do under Section 3 of the Limitation Act, 1908.
Now Learned District Judge has also observed that the plea was not taken in the written statement or in the memo of appeal and that it has been taken after a period of 33 years. Nothing turns on the said observation, reason being that the first appeal was still pending when the question was raised and the same having been answered in favour of the appellant the suit was required to be dismissed as provided by the law in mandatory terms.
This RSA is accordingly allowed. Both the impugned judgments and decrees passed by the learned Courts below are set aside and the suit filed by the respondents is dismissed. No orders as to costs.
Records be returned.
(Fozia Fazal) Second appeal allowed.
PLJ 2006 Lahore 1389
Present: Syed Sakhi Hussain Bukhari, J.
Mst. IQBAL BIBI--Petitioner
versus
BASHIR AHMAD and 2 others--Respondents
W.P. No. 3487 of 2006, decided on 8.6.2006.
Constitution of Pakistan, 1973--
----Art. 199--Entitlement of maintenance allowance--Illegality--Held: Father was not liable to maintain a grown up and disobedient daughter especially one who was of marriageable age and was living away without his consent--Held: No illegality or infirmity in impugned judgment--No justification to set aside same--Petition dismissed. [P. 1390] A & B
Mr. Ijaz Ahmad Khan, Advocate for Petitioner.
Date of hearing : 8.6.2006.
Order
In this constitutional petition the petitioner has prayed for setting aside judgment dated 14.12.2005 passed by Learned Additional District Judge, Okara and judgment and decree dated 12.9.2005 passed by learned Judge Family Court, Okara.
Relevant facts for the disposal of this writ petition are that Mst. Iqbal Bibi, petitioner filed suit for maintenance allowance against her father (Bashir Ahmad, Respondent No. 1) and stated that he has not paid her maintenance allowance, therefore, she was constrained to file suit. The respondent mentioned in written statement that petitioner had been living with him but on 16.1.2005 maternal grandmother and maternal uncle of petitioner visited his house in his absence and took her away. He further mentioned that he had engaged the petitioner with his nephew and it was settled that `Rukhsati' would take place on 5.2.2005. Learned trial Court framed issues, recorded evidence and dismissed the suit brought by petitioner vide judgment dated 12.9.2005. The petitioner filed appeal thereagainst which was dismissed vide judgment dated 14.12.2005 passed by Learned Additional District Judge, Okara. Hence this writ petition.
I have heard the arguments and perused the record.
As mentioned above petitioner had filed suit for maintenance allowance against her father (Bashir Ahmad, Respondent No. 1). The case of petitioner is that her father is bound to provide her maintenance but he has failed to provide the same. However the case of respondent is that maternal grand mother and maternal uncle of petitioner took her with them from his house in his absence without his consent hence she cannot claim maintenance allowance from him. Also that he intended to perform her marriage with his nephew but petitioner is not ready to contract marriage, therefore, she is not entitled to get maintenance allowance from him. Mst. Iqbal Bibi, petitioner while appearing as PW-1 during cross-examination stated that she is aged about 18/19 years and she does not want to contract marriage. The plaintiff stated that she would not contract marriage even if her father selects a good boy (bride groom) for her and that she wants to live with her maternal grand mother and maternal uncle. She admitted that she had filed application against her father (respondent) for registration of a criminal case but the same was dismissed. Bashir Ahmad respondent appeared as DW-1 and stated that he had engaged the plaintiff with his nephew, Ghulam Sabir and date (5.2.2005) was fixed for her marriage but before the said date plaintiff/petitioner went to the house of her maternal grand mother in his absence. He asked her maternal grand father etc, for restoration of his daughter but petitioner filed application against him for registration of a criminal case, which was dismissed. It is clear from the material available on record that petitioner is living with her maternal grandmother and maternal uncle without consent of her father (respondent). It is in evidence that petitioner is aged about 19 years and that Bashir Ahmad (petitioner's father) intended to bring the petitioner in his house but she refused. Also that her father wanted to perform her marriage with his nephew but she left his house before the date fixed for the marriage. Learned trial Court observed that petitioner is not entitled to get maintenance allowance from her father and dismissed her suit. The father is not liable to maintain a grown up and disobedient daughter especially one who is of marriageable age and is living away without his consent. Reliance can be placed on the case of Mst. Ghulam Fatima vs. Sheikh Muhammad Bashir (PLD 1958 (W.P.) Lahore 596) So judgment dated 12.9.2005 passed by Learned trial Court is just and proper. The judgment dated 14.12.2005 shows that Learned Additional District Judge has decided the appeal brought by petitioner after appraisal of entire material available on record. There is no illegality or infirmity in the impugned judgments, therefore, there is no justification to set-aside the same.
The upshot of the above discussion this writ petition has no fore and the same is accordingly dismissed in limine.
(Fouzia Fazal) Petition dismissed.
PLJ 2006 Lahore 1391
Present: Muhammad Muzammal Khan, J.
MIAN MUHAMMAD IQBAL and another--Petitioners
versus
ELECTION TRIBUNAL FOR DISTT. OKARA/DISTT. JUDGE KASUR and 5 others--Respondents
W.P. No. 5292 of 2006, decided on 26.5.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. 6, R. 15--Verification of pleadings--Law relating to verification on the civil side, was directory because no penal consequences for non-compliance were provided but as far as election petition was concerned such requirement was mandatory because the law applicable provided penal consequences in case of default. [Pp. 392 & 393] A
(ii) Punjab Local Government Election Rules, 2005--
----Rr. 67(3) & 72--Every election petition and every schedule or annex therewith were to be signed and verified compliance of this rule was mandatory--Non-verification of election petition, schedule or annex therewith would result in consequences given by R. 72 in form of dismissal of election petition. [P. 393] B & C
(iii) Punjab Local Government Election Rules, 2005--
----R. 71(4)--Amendment of election petition--Jurisdiction of Tribunal--It equipped the election tribunal with the jurisdiction to allow amendment of the election petition in such a manner which in its opinion, be necessary for ensuring a fair and effective trial and for determining real questions in controversy but the tribunal is prohibited from allowing any amendment to raise new ground of challenging the election--Petition dismissed. [P. 393] D
Ch. Muhammad Ashraf Wahlah, Advocate for Petitioners.
Date of hearing : 26.5.2006.
Order
This judgment proposes to decide two constitutional petitions, one in hand and the other W.P. No. 5293/2006, as both these raise similar questions of law/facts and require determination of alike controversy. Both these petitions challenged two distinct orders dated 4.5.2006 passed by the Election Tribunal (Respondent No. 1) in two different election petitions, to be declared illegal, void and of no legal consequence, whereby applications under Order VII, Rule 11 CPC filed by the petitioners in both the writ petitions were dismissed and the applications for amendment of election petitions filed by Respondents Nos. 3 and 4, were accepted.
Precisely, relevant facts are that petitioners in both the writ petitions contested the recent local bodies elections for the offices of Nazim and Naib Nazim of Union Councils 7 Chak No. 48/3-R and 95/7, Tehsil and District Okara and were declared successful and were notified as returned candidates. Respondents Nos. 3 and 4 in both the writ petitions, challenged the results by filing their respective election petitions before Respondent No. 1 Writ Petitioners filed two separate applications under Order VII, Rule 11 CPC for rejection of election petitions on the ground that Respondents Nos. 3 and 4 instead of filing election petitions against the petitioners filed appeals, which are not provided by the Local Government Election Rules, 2005. The other stance of the petitioners was that if the appeals were to be treated as election petitions, the same were not duly signed/verified, as provisions of Rule 67(3) of the Rules (ibid) without fulfilling the requirements of Order VII, Rule 1 CPC.
On the other hand, Respondents Nos. 3 and 4 in both the writ petitions, moved their separate applications for amendment of the election petitions and to remove the omissions pointed out by the petitioners. Both the parties filed their replies to the applications filed by their opponents and the learned Presiding Officer of the Election Tribunal, after hearing the parties, dismissed the applications of the petitioners filed under Order VII Rule 11 CPC and accepted that of Respondents Nos. 3 and 4 through his consolidated order dated 4.5.2006. Petitioners have now filed the above noted two constitutional petitions with the relief, noted above.
I have heard the Learned counsel for the petitioners and have examined the record, appended herewith, Learned Presiding Officer of the Election Tribunal though has not properly appreciated ratio of the judgment by the Honourable Supreme Court in the case of Sardarzada Zafar Abbas and others vs. Syed Hassan Murtaza and others (PLJ 2006 S.C. 151) and has incorrectly held that the same was not applicable to the case in hand solely on the ground that it was under Representation of Peoples Act, 1976, yet my understanding is that it was fully applicable to the case in hand because no doubt it was given while interpreting provisions of the Act of 1976 but the underlying principle was that law relating to verification as per Order VI, Rule 15 CPC on the civil side, was directory because no penal consequences for non-compliance were provided but as far as election petition is concerned this requirement was mandatory because the law applicable provided penal consequences in case of default. Respectfully following the dictum of the Honourable Supreme Court in the above refused case, I opt to examine Punjab Local Government Election Rules, 2005 and thereunder by dint of Rule 67(3) every election petition and every schedule or annex therewith were to be signed and verified in the manner laid down by the Code of Civil Procedure, 1908 for verification of pleadings. Corresponding provision in the Civil Procedure Code is Order VI, Rule 15, which envisages that every pleading has to be verified on oath or solemn affirmation at the foot, by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case and this verification has to be by reference to the numbered paragraphs of the pleadings, deposing what is being verified on knowledge and what on information received and believed to be true.
From the above resume, consequences of non-compliance of above referred Rule 67(3) have been given by Rule 72 of the same Rules and here-under, Tribunal may dismiss an election petition for not following provisions of Rules 67 and 70, thus compliance of Rule 67 was mandatory. Non-verification of election petition, schedule or annex therewith, would result in consequences given by Rule 72 in form of dismissal of election petition. After holding that verification of election petition according to requirements of Order VI, Rule 15 CPC is mandatory, my humble view is that if such defect occurs that in curable because Rule 71(4) of the Punjab Local Government Election Rules 2005, equipped the Election Tribunal with the jurisdiction to allow amendment of the election petition in such a manner which in its opinion, be necessary for ensuring a fair and effective trial and for determining real questions in controversy but the Tribunal is prohibited from allowing any amendment to raise new ground of challenging the election. Compass/scope of this provision of the Rule is wider as compared to that of Order VI, Rule 17 CPC. The Election Tribunal/ Respondent No.1 by invoking jurisdiction under Rule 71(4) allowed Respondents Nos. 3 and 4 to amend their election petitions so as to remove the objection of the petitioners regarding its non-verification. The discretion by the Tribunal could not be demonstrated to have been exercised arbitrarily/fancifully, in any respect and at the same time, by the allowed amendment, no fresh ground to challenge the election was raised.
Submission of the learned counsel for the petitioners that provisions of Rule 71(4) amounts to negate penal consequences given by Rule 72, has not impressed me for the reason that those provisions are not self-destructive. In case a petitioner insists for adjudication of his election petition with defective verification or without verification, he has to meet the consequences given by Rule 72 but in case he opts to rectify the defect by showing sufficient cause for the lapse, the same could be cured through a reasoned order by the Tribunal. Scan of record and the impugned order revealed that though approach of the learned Presiding Officer of the Election Tribunal was incorrect, yet his conclusion and the net result being fair/justified, cannot be adjudged as prayed.
For the reasons noted above, no case for interference in constitutional jurisdiction of this Court could be made out. Even otherwise, lawful decision within the ambit of conferred jurisdiction cannot be substituted on these petitions, which being devoid of any merit, as dismissed in limine.
(Fouzia Fazal) Petition dismissed.
PLJ 2006 Lahore 1394 [Rawalpindi Bench Rawalpindi]
Present: Ali Nawaz Chowhan, J.
MUHAMMAD AKBAR KHAN HOTI--Petitioner
versus
FEDERATION OF PAKISTAN--Respondent
Writ Petition No. 195 of 2006, heard on 21.3.2006.
Constitution of Pakistan, 1973--
----Arts. 199 & 212--Service Tribunal Act, 1973, S. 4(1)(b)--Writ of Mandamus--Promotion matter--CSB had not ascertained from entire material placed before it as the what was the integrity of the petitioner for purposes of consideration of his promotion case--It simply brushed aside the dossier on the basis of the intelligence report even without asking the petitioner any question--It did not even ascertained who was the author of the report CSB had not applied its mind--High Court had no hesitation in issuing a Mandamus to the CSB to look into the entire record and consider the reports on the basis of their intrinsic value and determine whether this was a fit case for promotion or not--Petition allowed. [P. 1398] A
Barrister Masroor Shah, Advocate for Petitioner.
Mr. Shamshad Ullah Cheema, Standing Counsel for Respondent.
Date of hearing : 21.3.2006.
Judgment
Muhammad Akbar Khan Hoti, petitioner, belongs to the Federal Service and he is presently a sitting Director, Passport Circle, FIA, Rawalpindi.
His grievance is that the Central Selection Board did not consider his case for promotion alongwith the cases of his peers and who brushed it aside merely on the reports of intelligence agency without any probe or investigation to the effect whether the reports of the agency were duly verified by competent persons.
According to the learned counsel for the petitioner, the petitioner had an extraordinary career in service. His blood count was 78 and there were no adverse entries in his annual confidential report. With this kind of a background the report of the agencies could not have been given a weightage as these reports were prepared without proper investigation on the basis of cursory opinions and without finding out whether the informant was a person probably interested in giving adverse reports against the petitioner for his own motives.
Learned counsel for the petitioner went on to say that fairness demanded that the agencies reports, even if their confidentiality was to be kept intact, were required to be brought to the notice of the petitioner with the purpose that he may clarify the position or he may controvert the basic allegation which these reports may be highlighting.
It is further stated that even if an adverse report is recorded against any officer, the practice so far had been that the effected officer is notified about that report so that in all fairness he could answer as to why the report was written against him. That this practice had been always followed. Why the reports which stood in the way of the petitioner and were surreptitiously recorded, were not brought to his notice for submitting any explanation? This is a mystery. Anyway a reference in this connection is made to the case of Pir Muhammad Qureshi vs. Chairman POF Board, Wah Cantt and other (1998 PLC (C.S.) 476).
In their comments the department has stated that blemish was on the integrity of the petitioner so far as the reports are concerned. Dilating on this, the learned counsel for the petitioner stated that a challenge to somebody's integrity was a very serious allegation and in such an eventuality it was necessary to call his explanation.
It is stated by the learned counsel for the petitioner that Estacode prescribed a procedure for dealing with the question of integrity. He referred to Instruction Sl. No. 172-A of the Estacode. The Estacode is rather more specific with respect of promotion for the posts in Basic Pay Scale 19 or higher and the learned counsel refers to the following guidelines from the Estacode:--
"3. For selection posts, entries under "equality and output of work" and "Integrity" in all the ACRs recorded on the civil servant during his service as an officer will also be quantified in accordance with formula given in the Addendum. These Marks shall be a crucial factor in determining comparative merit of officers for promotion to selection posts."
And, further guidelines in this regard are also given in Estacode which are reproduced below:--
"(a) Qualifying Service: possess 17 years service as an officer subject to the provisions contained in Establishment Division's O.M. No. 1/9/80-Respondent-II(A), dated 2.6.1983.
(b) Eligibility threshold: attain a minimum score of 70 marks in the CRs in accordance with the formula given in the Addendum.
(c) Qualifications: as prescribed by relevant recruitment rules.
(d) Relevance of Experience: possess experience relevant to the functions of the post to which promotion is being made.
(e) Quality and Output of Work' and "Integrity": marks calculated in accordance with the formula in the Addendum shall be a crucial factor in determining the comparative merit of an officer.
(f) Variety of experience: the Selection Board should give due consideration to the nature of duties, duration and location of posts previously held by the officer. Depending on the post to be filled, an officer possessing well rounded experience should normally be preferred particularly if he has served with distinction in un-attractive areas. While some exposure to a corporation, autonomous body or an ex-cadre assignment may be considered a positive feature this would not be so where an officer has stayed away from his parent cadre for too long.
(g) Training: should have successfully completed a regular course at NIPA or an equivalent course in another institution. This requirement will be waived for officers who:
(i) have served as head of a training institution for at least one year; or
(ii) have served on the directing staff of a training institution for at least two years; or
(iii) have attended a regular course at the Staff College/NDC; or
(iv) have exceeded the age of 56 years.
It is stated that the reports by the agencies shall always be inferior in worth to the reports formulated according to the Estacode. These latter will be more reliable, scientific and since these are written by immediate higher authorities, will be more authentic.
When a reference is made to CSB, it usually consists of five documents which are CP-1 to 5. It is stated that in these documents no importance is attached to the intelligence agencies reports even with respect to the factum of the integrity of the person.
So, the argument is that nobody can be refused promotion on the basis of an agency's report which may be totally baseless and may have been procured for ulterior motives and reasons.
Learned counsel has further placed his reliance on an unreported case cited as Commissioner Rawalpindi Division etc. v. Malik Tariq Rahim, Extra Assistant Commissioner/City Magistrate, Gujrat where the following observation made by the apex Court being relevant is reproduced below:--
We have considered this aspect of the case. Prima facie, we are of the view that there is force in the contention raised by Mr. Samdani, ASC inasmuch as, the intelligence reports which were never conveyed to the respondent cannot form the basis for withholding the promotion of the respondent. In this view of the matter, we vacate the interim order with the direction that respondent be dealt with in accordance with law. Promotion of the respondent would however be subject to the fate of this petition."
Muhammad Zafar Abbasi vs. Government of Pakistan (2003 PLC (CS) 503).
M.A. Rafiq v. M.D. Power WAPDA (1990 SCMR 927).
M. Ehsanul Haq v. Secretary to Government of Pakistan (1997 PLC (CS) 127).
The ACRs are losing their sanctity because the reporting officers often get influenced one way or the other or may have prejudice or a bias. But this is not something universal. Therefore, this Court cannot agree with the learned counsel for the petitioner that the intelligence reports were totally worthless and are not to be considered at all. Every Government entertains these reports for knowing the facts which are not ascertainable otherwise. But the question is, can these reports be taken as gospel truth when these dilate on the integrity of a civil servant. The answer is yes but not without a strong corroboration coming from the annual confidential reports prescribed by the law and the procedure.
Anyhow, a report from the Intelligence Department with respect to a Government servant touching upon his integrity and work stands at an inferior position as invariably this is written by a person of the lowest rank, who cannot have a perception which an immediate boss of a civil servant may have. Therefore, when ACRs are discarded, the intelligence report cannot take their place absolutely as this can lead to very dangerous results. At the most an overall picture can be drawn based on the statements in the ACRs and the intelligence reports.
The CSB in this case has not ascertained from the entire material placed before it as to what was the integrity of the petitioner for purposes of consideration of his promotion case. It simply brushed aside the dossier on the basis of the intelligence report even without asking the petitioner any question. It did not even ascertain who was the author of the report. If the report was given by a Grade IV Officer it would not be wise to depend on such a report.
Therefore, the CSB has not applied its mind to the case of the petitioner. As the CSB has not applied its mind, this Court has no hesitation in issuing a mandamus to the CSB to look into the entire record of the petitioner and then consider the reports on the basis of their intrinsic value and determine whether this was a fit case for promotion or not.
Because we are merely issuing a mandamus and asking the CSB to do things which were required to be done under the law, the provisions of Article 212 of the Constitution do not place any impediment. The CSB is directed to determine these questions raised before this Court within a period of two months from today.
Disposed of.
(Fouzia Fazal) Order accordingly.
PLJ 2006 Lahore 1398
Present: Muhammad Jehangir Arshad, J.
GHAFOORAN BIBI and 4 others--Petitioners
versus
IFTIKHAR AHMAD and 4 others--Respondents
C.R. No. 2615 of 2001, decided on 1.6.2006.
Punjab Muslim Person Law (Shariat) Act (Amendment) Ordinance--
----S. 2-A(c)--By virtue of--Civil Procedure Code, (V of 1908), S. 115--Right of inheritance--Families of the parties at relevant time was governed by custom cogent and strong evidence with regard to existence of such custom should have been made available on record and by mere oral evidence no finding in this respect could be recorded. [P. 1403] C
Mutation of inheritance--
----Iota of evidence--Family of deceased was governed by custom thus his mutation of inheritance was rightly attested under custom whereby his daughters were excluded in view of the custom allegedly prevalent in his family at the time of his death--There was no an iota of evidence eon record except the oral assertion that family of deceased was governed by custom in the matters of inheritance and that there was any specific custom in vogue in his family excluding daugthers from inheritance of their father in the presence of son--Revision Dismissed. [P. 1403] B
Customary Law--
----Mutation of inheritance--A plea of fact not pleaded in pleadings no case can be founded on such a plea and the evidence so recorded or brought on record has to be ignored. [P. 1402] A
Ch. Muhammad Naeem, Advocate for Petitioners.
Mr. Maqbool Hussain Sheikh, Advocate for Respondents.
Date of hearing : 1.6.2006.
Order
The facts in brief are that on the death of Ghulam Muhammad predecessor in interest of the parties, his mutation of Inheritance No. 110 was attested on 12.4.1950 (Ex. P-1) in favour of his son Muhammad Iqbal as the sole heir. The said mutation was challenged by Mst. Zubaida Bibi (predecessor in interest of Respondents Nos. 1 to 4) and Mst. Khurshid Bibi Respondent No. 5 claiming themselves as daughters of said Ghulam Muhammad deceased through plaint dated 11.8.1997 with the claim that Muhammad Iqbal was not the sole heir of Ghulam Muhammad deceased but he had also left two daughters named above, whereas, said mutation was got attested by omitting their names. It was further averred in the plaint that Muhammad Iqbal in his life time had been paying their share to them and after his death in the year 1995, his heirs i.e. the present petitioners had also been paying share of produce to them. However, when the respondents wanted to get their shares separated the heirs of Muhammad Iqbal refused and on obtaining copies of revenue record it transpired that the petitioners had been deprived of their right of inheritance of their father Ghulam Muhammad which compelled them to file the suit. The suit was contested by the present petitioners on the ground that Mutation No. 110 was correctly attested and that respondents had nothing to do with the inheritance of Ghulam Muhammad. No further plea with regard to the claim of the Respondents was taken in the written statement. Keeping in view the pleadings of the parties the Learned trial Court framed the following issues:
ISSUES:
Whether the plaintiffs being the legal heirs of Ghulam Muhammad deceased are entitled to their respective shares in the suit property, if so, to what extent? OPP.
Whether mutation of inheritance dated 12.10.05 is wrong, illegal, collusive, void, ineffective qua the rights of the plaintiffs? OPP.
Whether the plaintiffs have got no cause of action and locus standi to file the suit? OPD.
Whether the suit is barred by time? OPD.
Whether the suit is not maintainable in its present form? OPD.
Whether the plaintiffs are estopped by their words and conduct to file the suit? OPD
Whether the suit is false and vexatious, if so, whether the defendants are entitled to recover special costs from the plaintiffs and to what extent? OPD.
What is the effect of P.O. No. 6 of the written statement? OPD.
Relief.
The learned trial Court recorded oral as well as documentary evidence of the parties and on the conclusion of the trial, vide judgment dated 7.12.2000 decreed the suit of the respondents. Against said judgment and decree of the learned trial Court, the present petitioners filed an appeal which when came up for hearing on 26.3.2001 before the Learned District Judge, Toba Tek Singh, the appellants (before the learned District Judge) through their learned counsel made the following statement:--
"Stated that Mst. Haleeman widow of Ghulam Muhammad deceased was alive at the time of death of Ghulam Muhammad. She was entitled to inherit the suit land and the learned trial Court has allocated the share in favour of Iftikhar Ahmad, etc. illegally. Therefore, the case be sent back to the learned trial Court only for determination of the shares of the legal heirs of Ghulam Muhammad, etc. inter se and the findings on other issues shall remain intact. The appeal and cross objections be decided accordingly."
The respondents also got their following statement recorded through their learned counsel:--
"I have heard the statement of learned counsel for the appellants and the same is accepted by me. I have no objection if the appeal and the cross objections are decided accordingly."
After recording the above statements of the parties the learned District Judge, Toba Tek Singh decided the appeal in the following terms:--
"In view of statement of learned counsel for the parties the suit is sent back to the learned trial Court with the direction to determine the share of legal heirs of the deceased afresh in accordance with law. The findings of the Learned trial Court on other issues shall remain intact. The appeal and cross objections are therefore, decide accordingly."
On receipt of the file in terms of abovementioned order of the learned District Judge dated 26.3.2001 the learned trial Court after hearing the parties passed the following judgment on 3.5.2001:--
"The perusal of the record reveals that the instant case was sent back by the learned appellate Court with the direction to determine the share of the legal heirs of the deceased afresh in accordance with law. The findings on other issues remained intact. In view of this direction the following shares are hereby determined in accordance with law:--
Mst. Haleema Bibi widow 4/32 share;
Muhammad Iqbal son 14/32 share;
Mst. Khurshid Bibi daughter 7/32 share;
Mst. Zubaida Bibi daughter 7/32 share;
Let this file be consigned to record room after its due compilation."
The petitioners assailed the abovementioned judgment of the learned trial Court through an appeal which was heard by learned District Judge and was dismissed on 19.11.2001, hence this Civil Revision.
(i) Whether in the light of judgment dated 26.3.2001 passed by learned District Judge, Toba Tek Singh on the basis of statements of the parties, the final judgment of the learned trial Court dated 30.5.2001 was appeal able before the learned District Judge?
(ii) Whether the remand order dated 26.3.2001 of the learned District Judge, Toba Tek Singh can be challenged through present Civil Revision?
(iii) Whether the findings of Courts below declaring the respondents as entitled to inherit the estate of Ghulam Muhammad deceased were based on correct appraisal of evidence and law? and finally
(iv) Whether this Civil Revision has abated in view of the law declared by the Hon'ble Supreme Court of Pakistan in the case "Abdul Ghafoor and others versus Muhammad Shafi and others" (PLD 1985 SC 407)?
Learned counsel for the petitioners argued that judgment/order of the learned District Judge dated 26.3.2001 was not subject to further appeal through regular second appeal, hence in terms of Order 43 Rule 1(u) C.P.C. the remand order despite the consent of the petitioners, can be assailed through this Civil Revision in terms of Section 105 C.P.C. It is next argued that as Ghulam Muhammad admittedly died in the year 1945 viz. before the enforcement of West Pakistan Muslim Law (Shariat Application) Act, 1948, hence there is a presumption that prior to enforcement of the said Act, the parties were governed by custom and there is evidence on record to the effect that family of Ghulam Muhammad deceased was also governed by custom, whereby daughters were excluded from inheritance of their father in the presence of sons, hence mutation in question was rightly attested in favour of Muhammad Iqbal sole son of Ghulam Muhammad. To elaborate his this argument the learned counsel has referred to oral evidence of PWs, who have in their statements deposed that family of Ghulam Muhammad was governed by custom whereby daughters were excluded from inheritance of their father in the presence of son, therefore, according to the learned counsel the findings of two Courts below were not only against law but also suffer from misreading as well as non-reading of evidence.
On the other hand, learned counsel for the respondents has argued that neither any plea with regard to the fact that family of the parties was governed by custom or that mutation in dispute was attested under custom, has been raised in the written statement nor any issue to this effect was framed by the learned trial Court and that the oral evidence lead by the petitioners on this point was neither admissible nor could be looked into at all because it is an established principle of law that the party is bound by the case set up in the pleadings and no evidence can be allowed to be produced on record regarding a fact not set up in the pleadings and in case any evidence to this effect has been produced the same cannot be looked into at all. It is next contended that it is an established principle of law that for proving that family of the parties at the relevant time was governed by custom cogent and strong evidence with regard to existence of such custom should have been made available on record and by mere oral evidence no findings in this respect could be recorded. The learned counsel further argues that despite the abovementioned legal infirmity in the pleadings of the petitioners, the respondents have plead on record copies of mutations (Ex. P-2 and Ex. P-3) relating to the family of the parties whereby daughters of the deceased were given share under Shariat. It is next argued by the learned counsel that petitioners could easily place on record copy of " " to substantiate their plea. It is next argued that in view of vague and evasive pleadings of the petitioners they were estopped from taking the plea of existence of custom in evidence. It has been finally contended by the learned counsel that through their statements dated 26.3.2001 the petitioners in fact admitted the case of the respondents and consented to the remand of the case for limited purposes of determination of shares of the parties which were accordingly determined by the learned trial Court on 30.5.2001, therefore, the petitioners were estopped from challenging the remand order dated 26.3.2001 whereby the judgment of the learned trial Court dated 7.12.2001 on all the issues was maintained and as the petitioners failed to point out any illegality in the later findings of the learned trial Court dated 30.5.2001 therefore, their appeal was rightly dismissed by the learned appellate Court through the impugned judgment.
The abovementioned arguments of learned counsel for the parties have been considered in the context of evidence available on record.
So far as the question whether petitioners were legally entitled to challenge the findings of the learned trial Court recorded on 7.12.2000 is concerned, I feel that the order of remand dated 26.3.2001 was only for limited purposes of determining the shares of the parties, hence no findings on the remaining issues were recorded by the learned District Judge, as such the petitioners rightly challenged the findings of the learned trial Court dated 7.12.2000 alongwith later findings of the learned trial Court dated 30.5.2001 and their appeal was competent and was correctly decided by the learned appellate Court on merits on all the issues.
However, the question whether the family of Ghulam Muhammad deceased was governed by custom and thus mutation in dispute was rightly attested under custom as alleged by the petitioners, is concerned, the same needs adjudication in the light of pleadings evidence as well as law on the subject. As argued by learned counsel for the respondents and rightly so the written statement of the petitioners not only contains vague and evasive denial of contents of the plaint, but also does not specifically contain the plea that Ghulam Muhammad deceased was governed by custom and thus his mutation of inheritance was rightly attested under customary law. It is an established principle of law that a plea of fact not pleaded in the pleadings no case can be founded on such a plea and the evidence so recorded or brought on record has to be ignored. This was so declared by the Hon'ble Supreme Court of Pakistan in the case "Government of West Pakistan (Now Punjab) through Collector, Bahawalpur versus Haji Muhammad" (PLD 1976 SC 469). Therefore, I am not inclined to entertain the plea of the petitioners that as the family of Ghulam Muhammad deceased was governed by custom thus his mutation of inheritance was rightly attested under custom whereby his daughters namely Mst. Khurshid and Zubaida Bibi were excluded in view of the custom allegedly prevalent in his family at the time of his death. Even otherwise, there is not an iota of evidence on the record except the oral assertion of DWs that family of Ghulam Muhammad deceased was governed by custom in the matters of inheritance and that there was any specific custom in vogue in his family excluding daughters from inheritance of their father in the presence of son. In the absence of any cogent and strong evidence, I feel that there is no force in the contention of learned counsel for the petitioners that as Ghulam Muhammad died before the enforcement of West Pakistan Muslim Law (Shariat Application), Act, 1948 hence there is a presumption that family of said Ghulam Muhammad was governed by custom in the matter of inheritance and by ignoring the plea of the petitioners the two Courts below have committed no illegality or irregularity while passing the impugned judgments.
Before parting with this judgment, I would also like to point out that after the judgment of Shariat Appellate Bench of the Hon'ble Supreme Court in Ishaq's case (PLD 1983 SC 273) declaring "custom no more rule of inheritance in Pakistan being repugnant to the injunction of Islam" and to implement the said judgment the Government of Punjab issued Ordinance No. XIII of 1983 i.e. Punjab Muslim Personal Law (Shariat) Act (Amendment) Ordinance and by virtue of Section 2-A(c) even the decrees passed prior to the said judgment of the Hon'ble Supreme Court giving any right to any person on the basis of such custom, where declared as abated. The effect of said Ordinance was considered by the Hon'ble Supreme Court of Pakistan in Abdul Ghafoor's case (PLD 1985 SC 407) wherein after analysing the said Ordinance in the light of judgment in Ishaq's case (PLD 1983 SC 273) the Hon'ble Supreme Court while summing up the judgment held that custom was no more the rule of inheritance and any decree, judgment or order of any Court right on any person under custom or usage unless it was a past and closed transaction, was void. Since the petitioners have based their defence against the mutation in dispute by taking the plea of custom which they can neither take after the above referred judgment of the Hon'ble Supreme Court in Ishaq's case nor the same is even otherwise, proved by the record. I am therefore, satisfied that this Civil Revision has no force and the same is accordingly dismissed, resultantly the judgments and decrees of Courts below are maintained.
(Fouzia Fazal) Revision dismissed.
PLJ 2006 Lahore 1404 [Rawalpindi Bench Rawalpindi]
Present: Muhammad Jehangir Arshad, J.
MALIK NAZAR HUSSAIN--Appellant
versus
COMMANDER (R) ZAFAR IQBAL, and 6 others--Respondents
F.A.O. No. 17 of 2006, heard on 6.4.2006.
Cantonment Rent Restriction Act, 1963 (XI of 1963)--
----S. 17(9)--Contract Act (IX of 1872), S. 42--Contract of tenancy--Personal bona fide need--Death of landlord--Effect on contract of tenancy and cause of action--Landlord was died during the pendency of the ejectment petition, tenant raised objection on the maintainability of the petition on the ground of abatement of cause of action--Whether the cause of action abated after the death of landlord and right to sue did not survive to his legal heirs--Held: Contract of tenancy did not abate or expire with the death of a party and only effect of the death of landlord is that his legal heirs unless give notice to the tenant intimating the death of the deceased landlord, cannot seek eviction of the tenant on the ground of default if the tenant has committed default by not paying or tendering rent by showing ignorance about the death of the landlord--Appeal dismissed. [P. 1407] A
Punjab Urban Rent Restriction Ordinance, 1959--
----S. 13(6)--Cantonment Rent Restriction Act, 1963 S. 17(9)--Constitution of Pakistan, 1973, Art. 189--Failure in payment of monthly rent with in stipulated period--Question of abatement of cause of action--Any default committed by tenant in payment of monthly rent within stipulated period can neither be condoned nor ejectment for default can be objected to--Question of abatement of cause of action on the death of deceased loosed its efficacy and High Court is bound by law laid down by Supreme Court in terms of Art. 189 of Constitution of Pakistan. [P. 1408] B
Mr. Waqar-ul-Haq Sh., Advocate for Petitioner.
Agha Tariq Mehmood Khan, Advocate for Respondents.
Date of hearing : 6.4.2006.
Judgment
Through this single order, I propose to decide the instant appeal alongwith FAO No. 18 of 2006, to FAO No. 27 of 2006 as similar question of law and fact is involved and also the cause of similarity of parties as well as the question involved in the matter.
The facts in brief are that Commander (R) Ghulam Nabi claiming himself as the landlord of the property in question filed an ejectment petition against each appellant separately before the learned Rent Controller, Chaklala Cantonment, Rawalpindi. On submission of the written reply by each appellant in each FAO, the learned Rent Controller vide his order dated 11.2.2004 directed them to deposit the arrears of rent from July, 2003 to January, 2004 before 26.2.2004 and continued depositing rent of each month before the 5th of next month. It appears that the appellant in each FAO failed to deposit the monthly rent before the 5th of next month, therefore, an application under Section 17(9) of the Cantonment Rent Restriction Act, 1963, was filed by Commander (R) Ghulam Nabi landlord with the prayer for striking off the defence of the appellant.
As Commander (R) Ghulam Nabi died during the pendency of the ejectment petition, hence the learned Rent Controller vide his order dated 18.1.2005 directed filing of amended petition by impleading his legal heirs, which was according filed on 19.4.2005 and the case was fixed for filing of written reply. Instead of filing reply to the amended petition, the appellant in each FAO filed an application under Order 7, Rule 11 CPC for rejection of the main ejectment petition on the ground that as the ejectment petition was filed by Commander (R) Ghulam Nabi for his personal use, hence with his death, the cause of action also abated and did not survive to his heirs.
After receipt of the reply to the application under Order 7 Rule 11 CPC, the learned Rent Controller without proceeding on the merits of the case any further accepted all the ejectment petitions in terms of Section 17 (9) of the Cantonment Rent Restriction Act, 1963, by striking off his defence for non-compliance of the earlier order dated 11.2.2004 regarding deposit of future monthly rent before 5th of each month, hence the aforesaid FAOs.
It has been argued by the learned counsel for the appellant that although the appellant did commit default in compliance with the order of deposit of monthly rent before 5th of each month, yet the same had lost its efficacy for the simple reason that the very cause of action with the death of Commander (R) Ghulam Nabi abated and the right to sue did not survive, therefore, the learned Rent Controller had no jurisdiction to pass the impugned order and the only alternative available to him was to reject the application. The argument of the learned counsel for the appellant is based on the ground that since under the Cantonment Rent Restriction Act, the landlord can got the property vacated for his personal requirement and not for the requirement of his children, as envisaged under Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, hence the very cause of action with the death of Commander (R) Ghulam Nabi, the original landlord, also expired and his legal heirs had no right whatsoever to continue with the ejectment proceedings after his death. To support his contention, learned counsel for the appellant has placed reliance on the case of Taiyab A. Kapadia vs. Agha Zia-ud-Din Barni (1981 CLC 1267).
On the other hand, learned counsel for the respondents/legal heirs has strenuously argued that as the appellant had admittedly committed default in the deposit of future monthly rent before 5th of each next month, as ordered by the learned Rent Controller on 11.2.2004, hence the Rent Controller had no option except to strike off defence and pass an ejectment order against the appellant in terms Section 17(9) of the Cantonment Rent Restriction Act 1963, therefore, the impugned order was correctly passed. He has further contended that the respondents being the legal heirs of Commander (R) Ghulam Nabi, the original landlord, after his death stepped into his shoes with his personal requirement and the same shall now be deemed as the requirement of the present respondents and the principle "that personal action dies with the death of the person" is not applicable to the present case. In this respect, learned counsel has placed reliance on the case reported as Muhammad Latif vs. District Judge, Lahore and 3 others (1982 CLC (Lahore) 255) to support the contention that the ejectment petition filed by the original landlord on the ground of personal need does not abate and the personal requirement of the original landlord becomes available to his legal heirs after his death. Similarly, learned counsel for the respondents in support of the contention that the default committed by the appellant for non-compliance of the order dated 11.2.2004 is not condonable and in consequence whereof the learned Rent Controller was bound to strike off his defence and ordered his eviction placed reliance on the case of M.H. Mussadaq vs. Muhammad Zafar Iqbal and another (2004 SCMR 1453), which is also a case under Section 17(9) of the Cantonment Rent Restriction Act, 1963.
The above arguments of the learned counsel for the parties have been considered and the record has been perused. As regards default on the part of the appellant in non-compliance of the order dated 11.2.2004, learned counsel for the appellant has not only conceded the same before the Court but also did not opt to stress any more except that the same was due to some misunderstanding. But in view of the law laid down by the Hon'ble Supreme Court of Pakistan in the case M.H. Mussadaq, referred to above, no different view can be taken and the order passed by the learned Rent Controller striking off the defence of the appellant and ordering his eviction is maintained. However, the contention of the learned counsel for the appellant that with the death of Commander (R) Ghulam Nabi, the right to sue does neither survive nor extend to his legal heirs requires some consideration.
Although Commander (R) Ghulam Nabi, the original landlord, filed the ejectment petition on the ground of his personal requirement yet to say with his death the cause of action neither survived nor transferred to his legal heirs is not correct because it is established principle of law that a contract is always enforceable against the legal heirs or the successor-in-interest of the original party and unless a contrary intention appears by the contract, the same does not abate with the death of the parties in terms of Section 42 of the Contract Act. Even otherwise, contract of tenancy does not abate or expire with the death of a party and only effect of the death of landlord is that his legal heirs unless give notice to the tenant intimating the death of the deceased landlord, cannot seek eviction of the tenant on the ground of default if the tenant has committed default by not paying or tendering rent by showing ignorance about the death of the landlord. But in the instant case, the dispute is not with regard to lack of knowledge on the part of the tenant/appellant about the death of Commander (R) Ghulam Nabi nor the ejectment petition was filed on the ground of default but the same was filed on the wole ground of personal requirement. This Court in the case of Muhammad Latif (supra) rightly held that the right of the parties to be determined on the date of institution of the lis and not on the basis of right accrued to them thereafter. Since Commander (R) Ghulam Nabi, the original landlord, could file the ejectment petition for his personal requirement as a landlord and such right was available to him at the time of institution of the petition as per Section 17 of the Cantonment Rent Restriction Act, hence his death would not mean that his personal requirement had abated and his legal heirs were not entitled to continue with the proceedings as his heirs. The question of abatement on the death of Ghulam Nabi would have some force if the appellant had not defaulted in complying with the order of deposit of future monthly rent before 5th of each next month. Since the provisions of Section 17(9) of the Cantonment Rent Restriction Act are at par with that of Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, and the Hon'ble Supreme Court of Pakistan in an unequivocal terms while deciding the cases under Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, held in Zafar Qureshi and others vs. Khawaja Maqsood-ul-Hassan etc. (1982 SCMR 392), Begum Capt. Mirza Ghulam Sarwar and another vs. District Judge, Jhelum and others (1987 SCMR 25), Haji Muhammad Siddique vs. District Judge, Peshawar and others (1990 SCMR 997) and Zikar Muhammad vs. Mrs. Arifa Sabir and another (2000 SCMR 1328) that any default committed by the tenant in the payment of monthly rent within the stipulated period can neither be condoned nor ejectment for such default can be objected to, hence the question of abatement of cause of action on the death of Commander (R) Ghulam Nabi in the present case looses its efficacy and this Court is bound by the law laid down by the Hon'ble Supreme Court of Pakistan in terms of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973.
Resultantly, for the foregoing reasons, all these appeals having no force are dismissed. However, keeping in view the inconvenience likely to be caused to the appellant in case of his immediate or forthwith ejectment, each appellant is allowed time till 30.6.2006 for handing over the vacant possession of the property under his tenancy, failing which the respondents shall be at liberty to initiate execution proceedings before the learned Rent Controller.
(Waseem Iqbal Butt) Appeal dismissed.
PLJ 2006 Lahore 1408 [Multan Bench Multan]
Present: Maulvi Anwarul Haq, J.
SALEEM KHAN and 9 others--Petitioners
versus
KARIM KHAN--Respondent
C.R. No. 333 of 2004, heard on 29.3.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Proof of gift was not established--No ground to interfere the impugned judgment and decree--Absence of cogent and satisfactory evidence on record regarding declaration or intention of donor to make gift--Effect--Decree passed in favour of the respondent is sustainable--Scope--There was no evidence at all on record as to whether any declaration or gift was made by alleged donor or it was accepted by the alleged donees or that possession was delivered under gift--Held: No grounds being made out for interference with impugned order and decrees passed by Courts below--Revision dismissed. [Pp. 1410 & 1411] A, B & C
2002 SCMR 1938, ref.
Mirza Aziz Akbar Baig, Advocate for Petitioners.
Mr. Anwar Mubeen Ansari, Advocate for Respondent.
Date of hearing : 29.3.2006.
Judgment
On 5.6.1998, the respondent filed a suit against the petitioner. In the plaint, it was stated that the last owner of the suit land detailed in the plaint was Khalim Gull. He was survived by the respondent, Petitioner No. 1 and Muhammad Iqbal (predecessor in interest of Petitioners Nos. 2 to 9 as sons and Petitioner No. 10 as widow). After the death of Khalim Gull in the year 1977, said two brothers assured the respondents and their mother that the inheritance mutation has been got attested. About 10 days before the institution of the suit, the respondent needed copies of the revenue records and it revealed that a gift Mutation No. 30 has been attested on 16.2.1969 in favour of said two brothers. It was stated that his father never made any gift. No declaration was made. There was no acceptance and no delivery of possession. It was further pointed out that in the said mutation the name of the respondent was omitted while the said persons declared their own mother to be dead. The deceased never appeared before the revenue officer. A declaration was accordingly sought that the respondent is co-owner in the suit land and the said mutation is void. Now the petitioners filed written statement. Now the plea taken was that the land was owned by Provincial Government and was put to auction. At that time the respondent was in army. The deceased sent Muhammad Ali son of Hayat informing the respondent that he is purchasing the land for which the amount has been provided by the said two sons and in case the respondent wants to get a share he should pay the money accordingly. The respondent refused and consequently the land was auctioned in favour of Khalim Gul and was transferred by way of gift in acknowledgement of the said facts. Issues were framed. Evidence of the parties was recorded. Learned trial Court decreed the suit on 31.5.2003. Learned Addl. District Judge, Mailsi, dismissed the first appeal of the petitioner on 9.3.2004.
Learned counsel for the petitioners contends that notwithstanding the said state of affairs and evidence on record, as noted by the learned Courts below, the fact remains that the father gifted the land to two sons by means of mutation and the Courts below have acted without lawful authority while passing the impugned judgments and decrees. Learned counsel for the respondent, on the other hand, contends that the petitioners cannot walk out of their pleadings which they have failed to prove and even otherwise mutation on the face of it is false and fabricated.
I have gone through the copies of the records. Now I have already narrated above, the material contents of the pleadings of the parties and particularly the written statement filed by petitioner. Now admittedly the respondent is brother of the alleged donees. He questioned the existance and validity of the said gift. The petitioner took a specific plea stating the reasons as to why the gift was made and these have already been reproduced above. I may refer here to the following observations of Hon'ble Supreme Court of Pakistan in the case of Barkat Ali through legal heirs vs. Muhammad Ismail through Legal Heirs" (2002 SCMR 1938) appearing in para-5 of the judgment at page 1942 of the report:--
"...Though it is not necessary for a donor to furnish the reasons for making a gift yet no gift in the ordinary course of human conduct is made without reason or justification unless the donor is divested of all the power of reasoning and logic and unless he is a person of unsound mind. In the wake of frivolous gifts generally made to deprive females in the family from the course of inheritance prevalent at present times, the Courts are not divested of the powers to scrutinize the reasons and justification for a gift so that no injustice is done to the rightful owners and no course of inheritance is bypassed."
Now Salim Khan, Petitioner No. 1, appeared as D.W.1. In his examination in chief, he did not at all refer to the said contents of his written statement. On the other hand, he stated that the respondent was a disobedient son. Now the cross examiner who was alive to the said contents of the pleadings confronted the said petitioner accordingly and he responded that the land was purchased in auction by his father in the year 1958 and at that time he was 14 years of age. In the same year his father paid the bid money and this amount was paid by his father in installments at the Patwar Headquarter. He does not remember as to how much money his father paid for the land. It will thus be seen that the said reasoning stated in the written statement by the petitioners for the alleged gift by the father in favour of his two sons stands completely belied.
To my mind the decree passed in favour of the respondent is sustainable upon reading of the said evidence of the Petitioner No. 1 and the contents of the written statement filed by the petitioners. However, I have examined the other evidence as well the gift Mutation No. 30 is Ex. D. 1. In the remarks column it has been recorded by the Patwari on 17.1.1969 that mutation is being entered with reference to a report. The number and date has been left blank. Needless to state such a report or its copy has not been produced. A padigree table has been drawn up on the mutation to show that Mst. Halima (present Petitioner No. 10) mother of donees is dead. This is a false statement and is admitted by the petitioner himself as D.W. 1. The order of the revenue officer dated 6.2.1969 reflects that Khalim Gul and Muhammad Iqbal have been identified by Abdul Rehman, Lambardar and Haji Ghulam Rasool and the factum of gift has been admitted. Now according to the Petitioner No. 1 as D.W. 1 said Abdul Rehman, Lambardar, is dead but the Patwari is alive. Later death entry of Haji Ghulam Rasul was produced who died on 24.1.1999. Now the Patwari appeared as DW-2. However, the record of original mutation and particularly Roznamcha Waqiati were not produced. He stated that the Mutation Ex. D.1 was entered by him and was attested on 6.2.1969 by the revenue officer. In his cross-examination, he stated that he did not know Khalim Gull personally and he was not resident of Chak No. 136 and he does not know any thing about him. He does not know any of the parties to the said mutation. D.W. 4 is Allah Ditta, a retired Patwari who has stated that he had compared the entries in the mutation and it bears his signatures. However, in his cross-examination, he stated that none of the parties appeared before him. Now the fact remains that there is no evidence at all on record as to whether any declaration or gift was made by Khalim Gull or it was accepted by the said alleged donees or that possession was delivered under gift.
Having thus examined the records, I do not find any grounds being made out for interference with the impugned judgments and decrees passed by the learned Courts below within the meaning of Section 115 CPC C.R. accordingly is dismissed with no orders as to costs.
(Rao Farid-ul-Haque Khan) Petition dismissed.
PLJ 2006 Lahore 1411
Present: Mian Saqib Nisar, J.
SARDAR KHAN NIAZI--Appellant
versus
DISTRICT CO-ORDINATION OFFICER, MULTAN and 4 others--Respondents
F.A.O. No. 289 of 2005, decided on 4.5.2006.
(i) Interpretation of Statutes--
----Rule of Interpretation--Interpretation which leads to absurdity and unreasonableness must be avoided--Held : Where the language of a statute admitting of two or more constructions, the interpretation, which promotes and advances the object of the law, should be followed, rather the one, which leads to absurdity and unreasonableness, which should, in all the situations, must be avoided. [P. 1415] B
(ii) The Press News Papers, News Agencies & Books Registration Ordinance, 2002--
----Ss. 6, 8 & 10 & Preamble--Limits imposed upon the powers of DCO--Scope--Object of enactment--To put a check and curtail the discretion of D.C.O--Validity--Discretion of DCO in refusing the authentication of the declaration that certain unambiguous limits have been imposed upon his power and the refusal is only restricted to the parameters of Section 10.
[P. 1415] A
(iii) The Press New Papers, News Agencies & Books Registration Ordinance, 2002--
----S. 8 & Preamble--Constitution of Pakistan, 1973, Art. 19--Freedom of expression and press--S. 8 to be read in the light of the object and spirit of law, rules of Grammar not to be applied while interpreting the same--Held: Purpose of the Ordinance is to ensure the freedom of the expression and the press, and the procedure for the publication has been facilitated and simplified, therefore, S. 8 should be read in light of the object and the spirit of the law, rather than going by the Rules of Grammar. [P. 1415] C
(iv) Words and Phrases--
----The word "is" also means "has been"; obviously "has been" is a past tense and is an interchangeable term with the word "was being"--Held: Only for the reason that "is" and "was being" are used by the Draftsman is two different clauses of the section, does not mean that different interpretation should also be made--Appeal Dismissed. [P. 1415] D
PLD 1972 Lahore 787, PLD 1966 Lahore 703, PLD 1961 SC 403 and PLD 1961 SC 119, ref.
Mr. Mehmood Ashraf Khan, Advocate for Appellant.
Mr. Hamid Khan, Advocate for Respondent No. 4.
Ms. Seema Munawar, AAG for Respondent.
Date of hearing : 4.5.2006.
Order
The order impugned in the case dated 23.4.2003 has been passed by the DCO, Multan, whereby the application of the appellant u/S. 6 of the Press News Papers, News Agencies & Books Registration Ordinance, 2002 (the Ordinance), for the authentication of his declaration for publication of the daily "Pakistan" from Distriction Multan, has been refused, while upon the intimation of the Respondent No. 4, u/S. 8 (2) of the Ordinance ibid, he has been allowed to publish the paper for the said District. Hence this appeal under Section 20 of the Ordinance.
Briefly stated the facts of the case are that on 4.9.2002, the appellant moved an application to the DCO Multan u/S. 6 of the Ordinance making the declaration for the publication of a urdu daily newspaper titled "Pakistan" from District Multan and seeking its authentication from the DCO in terms of Section 10 of the Ordinance. It is his case that he already was/is publishing such paper from Islamabad and Karachi. Respondent No. 4, according to the appellant, also moved a similar application on 17.10.2002, but did not pursue it further and no action thereafter was yet taken upon the same, when he addressed a letter dated 1.2.2003, intimating the DCO Multan u/S. 8(2) of the Ordinance, that as he is publishing the said newspaper from Lahore and thus intends to do so from District Multan as well. In the above situation, the DCO sought the opinion from the Ministry of Information, Govt. of Pakistan and having received some advise/opinion, in this behalf, passed the impugned order, whereby the declaration of the Appellant u/S. 6 was refused and the Respondent No. 4, was allowed to publish the daily "Pakistan" from the Multan District. Hence this appeal.
Learned counsel for the appellant states that the collective reading of the provisions of Sections 6, 8 and 10 of the Ordinance, enunciates a scheme, as to how a declaration for the purpose of the publication of a newspaper should be made; what shall be the rules and the criteria for the authentication of such a declaration or the refusal thereof; what steps shall follow regarding the change about the language, periodicity or the place of printing of an existing newspaper, if intended to be so changed in the same District; what should be the process, if the change of publication is sought from one District to another in the same Province or outside the Province. In this behalf, he states that if a person intends to publish a newspaper, he has to make a declaration u/S. 6 in the prescribed form to the DCO, of the concerned District, which declaration, shall be considered by the DCO within the parameters of Section 10 and shall be authenticated and decided on the touch stone of the said provision, whereas, Section 8 caters for three different situations, firstly under sub-section (1), if a publisher wants to change the language or the periodicity or place of the publication of an existing paper in the same District, he is obliged to intimate the DCO of the District, but this should be during the continuity of the publication and after such intimation is give, the printer/publisher can proceed to make the requisite change without filing a fresh declaration or seeking the authentication thereof. In the second and the third eventuality envisaged by sub-sections (2) & (3) regarding the change of publication from one District to another in the same Province or any other District in Pakistan, the publisher should first give-up, abandon and discontinue the publication of the paper in the District, where it is being published and thereafter, can on the intimation, publish the same paper in the other District.
The sole basis of the above arguments is structured upon the expression "is" used in Section 8(1), and "was being" in Section 8 (2) (3). According to the learned counsel, "is" connotes the presentee, whereas "was being" is the past perfect. In the very words of the learned counsel, "If the publisher has quitted and abandoned the publication of the paper in the District, in which he has the authentication of the declaration, he can inform the DCO of the District, from-where he proposes to publish and without filing a fresh declaration or seeking authentication of the same as required u/S. 10, he can simply upon providing the information under Sections 2 and 3 of Section 8, automatically is entitled to publish the newspaper in the latter District. But if the publishing of the paper is in existence in the District, for which the declaration was authenticated, he has to file a fresh declaration under Section 6 for the publication of the paper in any other District of the same Province or the country, as the case may be".
According to the learned counsel, as the Respondent No. 4, has not discontinued the publication of the paper in Lahore District, therefore, he was required to file a fresh declaration for Multan District and as this has not been done, the impugned order permitting him to publish the paper from Multan, is illegal and without jurisdiction.
Mr. Hamid Khan, learned counsel for the Respondent No. 4, on the other hand, has submitted that the construction of Section 8 should not be founded upon literal or grammatical meaning of the words used therein, rather the provision should be constructed on the basis of the rules of rationality, reasonableness, pursuant to the purpose and the object of the law and to avoid absurdity. It should also be interpreted in the light of the Article 19 of the Constitution of the Islamic Republic of Pakistan, 1973 and the preamble of the Ordinance. Accordingly, if a person once has filed the declaration in any District of the country, which has been authenticated by the DCO, he can publish the same newspaper in any other District by only giving an intimation of the same to the DCO of other District and no new declaration is required. In support of his submission about the rules, which should be applied in construing the Section 8(2) & (3), he has also relied upon the judgments reported as Commissioner of Income Tax, Lahore vs. S. Mubarak Ahmed (PLD 1972 Lahore 787), Sardar Muhammad vs. Mst. Nasima Bibi and others (PLD 1966 Lahore 703), Pakistan Tobacco Company Ltd. vs. Pakistan Tabacco Company Employees Union Dacca. Etc. (PLD 1961 SC 403), and Nawabzada Muhammad Amir Khan vs. The Controller of Estate Duty, etc. (PLD 1961 SC 119).
I have heard learned counsel for the parties. Undoubtedly, the freedom of the press is a scared fundamental right conferred upon the citizens of the Pakistan, as enshrined by Article 19 of the Constitution of the Islamic Republic of Pakistan, 1973. It is pursuant to such a right and to ensure its true application, that the "Ordinance" has been promulgated, the preamble whereof has made the purpose and the object of the law in the above direction very conspicuous and clear. Thus, from the collective reading of Sections 6, 8 and 10 of the Ordinance in the light of Article 19 and the preamble, it is manifest that the procedure to enable the publication of the newspaper has been simplified and facilitated under the law. It is with the purpose to put a check upon and to curtail the discretion of the DCO in refusing the authentication of the declaration that certain unambiguous limits have been imposed upon his power and the refusal is only restricted to the parameters of Section 10. Therefore, I find myself in agreement with Mr. Hamid Khan, learned counsel for the respondent that the interpretation of the various provisions of the Ordinance, including Section 8 (2 & 3), should be made keeping in view the principles that where the language of a statute admitting of two or more constructions, the interpretation, which promotes and advances the object of the law, should be followed, rather the one, which leads to absurdity and unreasonableness; which should, in all the situations, must be avoided. The purpose of the Ordinance, is undoubtedly clear, which is to ensure the freedom of the expression and the press, and as stated above, the procedure for the publication has been facilitated and simplified, therefore, Section 8 should be read in the light of the object and the spirit of the law highlighted above, rather going by the rules of Grammar.
The argument of learned counsel for the appellant that because of the expression "is" used in sub-section (1) and "was being" in sub-sections (2) and (3), therefore, the publisher in the later two cases, has to first give up and abandon the publication and then should give an intimation to the DCO; but without seeking the authentication can publish the same paper, to my mind shall be an absurd interpretation of these provisions; the word "is" as defined in various dictionaries particularly the Black Law Dictionary 6th Edition, at page 830 also means "has been"; obviously "has been" is a past tense and is an interchangeable term with the word "was being" therefore, only for the reason that "is" and "was being" are used by the Draftsman in two different clauses of the section, does not mean that different interpretation should also be made.
In the light of above, I find that as the Respondent No. 4 was publishing the newspaper in Lahore; his declaration has been duly authenticated by the DCO, thus he simply was required to provide an intimation within the terms of Section 8(2) and therefore, no new declaration was needed to be filed by him. Resultantly, I find that the order passed by the forum below is in accordance with law, which does not call for interference. This appeal thus has no merits and the same is hereby dismissed.
(Rao Farid-ul-Haque) Appeal dismissed.
PLJ 2006 Lahore 1416
Present: Sayed Zahid Hussain, J.
JAMIL AHMAD SHEIKH and another--Petitioners
versus
DISTRICT OFFICER (REVENUE) KASUR and 3 others--Respondents
W.P. No. 2676 of 2006 and C.M. Nos. 3, 4 and 1126 of 2006, heard on 11.5.2006.
(i) Evacuee Property and Displaced Persons Law (Repeal) Act, 1975 (XIV of 1975)--
----Preamble--District Officer (Revenue) is not a Notified Officer--Scope--Lacks jurisdiction to determine legality of an allotment--Validity--District Officer (Revenue) who passed the order is not a notified officer under the Evacuee Laws--He could not have assumed the jurisdiction to determine the legality or otherwise of an allotment, as it was not his function and the mutations were merely consequential entries in the record. [P. 1417] A
(ii) Constitution of Pakistan, 1973--
----Arts. 199 & 175(2)--Assumption off jurisdiction--Validity--Officer (Revenue) had got no jurisdiction under the law to make adjudication in the matter of allotment--Since assumption of jurisdiction by him was without any baking of the contemporaneous law he acted without lawful authority--Act without lawful authority having no legal effect--There is no law or statutory instruction empowering him to set aside an allotment--It may be observed that an act is without lawful authority and of legal effect when the person doing it had no authority or jurisdiction to do it--Held: Such an act is ultra vires and without jurisdiction--Petition allowed. [Pp. 1417 & 1418] B, C & D
PLD 1975 SC 58 and PLD 1975 SC 450, ref.
Mr. Tallat Farooq Sheikh, Advocate for Petitioners.
Ch. Aamir Rehman, Additional Advocate General, Punjab for Respondents Nos. 1, 2 & 4.
Mr. Imran Raza Chaddhar, Advocate for Respondent No. 3.
Mr. Muhammad Zafar Chaudhry, Advocate for Applicants (in C.M. No. 1126/2006).
Date of hearing : 11.5.2006.
Judgment
Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 order dated 4.3.2006 passed by Respondent No. 1, is sought to be assailed. WP. No. 2677/2006 also challenges the same order passed by the same respondent. The petitions have thus been heard together and will stand disposed of through this judgment.
The learned counsel for the parties have been heard.
Though the matter has a long drawn background of litigation yet for the purpose of adjudication of the issue arising in this petition the same may not be necessary to be repeated. Suffice it to observe that Muhammad Ijaz Respondent No. 3, had made an application before the Chief Minister Punjab and the District Coordination Officer, Kasur which resulted in the initiation of proceedings (termed as review of mutations) and eventually the District Officer (Revenue) Kasur proceeded to pass order dated 4.3.2006. Operative part whereof reads as follows:
"I have gone through the record and material placed on file. There is nothing contrary to the facts submitted by the Revenue Officer. The allotment under reference does not have any basis from RL-II which was prima-facie obtained illegally and fraudulently. There are a number of citations of the Superior Courts that an illegal act is always illegal and to take action against the delinquent persons for illegal act, notice is not necessary. Hence in the light of the report of Revenue Officer duly forwarded by DDO (Rev), Pattoki, the mutations Bearing Nos. 470 and 477 dated 26.6.1972 of Mauza Thathi Otar and Mutation No. 1764 dated 26.6.1972 of Mauza Jamber Kalan which were obtained sanctioned through bogus and fake order are recalled and review of the mutations is allowed in favour of Provincial Government. File be consigned to record room."
It is evident from the above that while passing the said order Respondent No. 1, purported to examine/scrutinize the allotment and thus observed that "The allotment under reference does not have any basis from RL-II which was prima-facie obtained illegally and fraudulently." The District Officer (Revenue) Kasur who passed that order is not a Notified Officer under the Evacuee Laws ie. Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975) he could not have assumed the jurisdiction to determine the legality or otherwise of an allotment, as it was not his function and the mutations were merely consequential entries in the record. Great emphasis has been laid from the respondents' side that since there was element of fraud involved the Court should not interfere in the matter. The contention however, overlooks an important aspect of the matter that Respondent No. 1, had got no jurisdiction whatsoever under the law to make adjudication in the matter of allotment. Since assumption of jurisdiction by him was without any baking of the contemporaneous law he acted without lawful authority. It may be observed that while exercising writ jurisdiction as per Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 the provisions of clause (2) of Article 175 of the Constitution of the Islamic Republic of Pakistan, 1973 also need to be kept in view that "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution of the Islamic Republic of Pakistan, 1973 or by or under any law." There is no law or statutory instrument empowering him to set aside an allotment. It may be observed that an act is without lawful authority and of no legal effect when the person doing it had no authority or jurisdiction to do it. Such an act is ultra vires and without jurisdiction. A case of inherent incompetency, total lack or want of jurisdiction cannot be overlooked which is liable to be declared as without lawful authority. In "Shabbir Ahmad v. Mst. Kabir-un-Nisa and others (PLD 1975 SC 58), it was observed that "an assumption of jurisdiction upon a clear misreading of the provisions of the law is an error apparent on the face of the record and such an error does furnish a ground for interference in writ jurisdiction." In Sind Employees Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 SC 450) also nothing the "defects of jurisdiction as apparent on the face of record", it was observed that "I have not the slightest doubt that if Respondent 2 proceeds to hear the complaint of Respondent 1, the proceedings will be wholly without jurisdiction and therefore a nullity." In the instant case I have no doubt whatsoever that Respondent No. 1 had no jurisdiction whatsoever in the matter who proceeded to assume the power not vested in him under the law and eventually passed an order which is wholly without any lawful authority and of no legal effect. The same is liable to be struck down.
The petition is accordingly accepted. Since Respondent No. 1 has chosen to pass the impugned order despite the order passed in WP. No. 16285/2004, he should bear the costs of the petition.
(Rao Farid-ul-Haque Khan) Petition allowed.
PLJ 2006 Lahore 1418
Present: Muhammad Muzammal Khan, J.
FAHMIDA AKHTAR--Petitioner
versus
GHAFFAR AHMAD & 2 others--Respondents
W.P. No. 15826 of 2000, heard on 27.4.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2) & O.VIII, R. 11--Decree on the basis of fraud--Jurisdiction--Held: Remedy of challenging a decree on the basis of fraud, misrepresentation and lack of jurisdiction under Section 12(2) CPC, was provided in place of a separate suit and was to be tried in the same manner. [P. 1421] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O.VI, R. 17, O.IX, R. 13, Ss. 12(2) & 115--Suit for declaration was decreed by trial Court on confessional statement--Petitioner filed application under Section 12(2) CPC--Petition dismissed consequent upon filing of application under Order VII Rule 11 CPC--Revision petition filed also met the same fate--Assailed--Validity--Summary rejection of application u/S. 12(2) CPC was not at all justified--Especially when the petitioner was not much literate, and was a house wife was living out of District, was real sister of respondent who was apparently hunting for her property--Petitioner, as a matter of fact was condemned unheard and she was not given any opportunity to substantiate her case set up in her application under Section 12(2) CPC by leading evidence--Petitioner has been deprived of proprietary rights in haphazard manner and course adopted by respondents cannot be justified on the touch stone of any canon known for administration of justice--Both judgments passed by respondents being illegal/void, are not sustainable at law, thus the same are declared to be so--Writ accepted and issued as prayed for in circumstances--Resultantly application under Section 12(2) CPC filed by the petitioner shall be deemed to be pending before the trial Court. [P. 1423] B, C & D
Raja M. Munir, Advocate for Petitioner.
Mr. Fazal-ur-Rehman Khan, Advocate for Respondents.
Date of hearing : 27.4.2006.
Judgment
Instant constitutional petition challenged the judgments/decrees dated 29.6.1995 and 16.5.2000 passed by the learned Civil Judge and that dated 18.7.2000 returned by the learned Additional District Judge, Gujranwala to be declared illegal, void and of no legal consequence, whereby suit of Respondent No. 1 was decreed ex-parte, petitioner's application under Order IX, Rule 13 and her civil revision were dismissed, respectively.
Succinctly, relevant facts are that the petitioner and Respondent No. 1 are real sister/brother and they on death of their father Haji Muhammad Sadiq, inherited its commercial properties, as well as agricultural land situated in Revenue Estate of Village Girjhak District Gujranwala. The propositus died on 23.3.1973 and was succeeded by three sons and four daughters. The properties left by him, were inherited by his all the heirs according to their respective Sharai Shares. Respondent No. 1 filed a suit for declaration with permanent injunction on 28.11.1987 averring that the petitioner was owner in possession of land measuring 23 Kanals and 17 marlas equivalent to 7/32 share out of 254 Kanals and 8 Marlas, which was allegedly sold by her to Respondent No. 1 through oral agreement to sell. Respondent No. 1 prayed that he may be declared owner in possession of the property allegedly transferred by the petitioner and she may be restrained from interfering in his possession by any means whatsoever.
Some counsel on behalf of the petitioner filed concessional written statement in the suit filed by Respondent No. 1 and on the basis of statement of the learned counsel for the parties, suit was decree vide judgment/decree dated 13.12.1987. The petitioner claimed that she was served in the suit; did not engage any counsel and did not instruct any body to make concessional statement on her behalf in the suit filed by Respondent No.1. According to her, she on gaining knowledge of the decree applied for certified copies thereof and moved an application under Section IX, Rule 13 CPC. Respondent No. 1 contested the application filed by the petitioner under Order IX, Rule 13 CPC but ultimately the same was accepted vide order dated 14.5.1992.
Respondent No. 1 aggrieved of the order-dated 14.5.1992 filed a revision petition before the learned Additional District Judge; Gujranwala but remained un-successful as the same was dismissed as withdrawn, on 3.4.1994.
Since suit filed by the Respondent No. 1 had revived wherein he filed application under Order VI, Rule 17 CPC praying its conversion into suit for specific performance of the oral agreement. It so appears to have happened that the petitioner again absented which resulted into an ex-parte decree against her on 29.6.1995.
Respondent No. 1 after getting ex-parte decree, went in its execution and the executing Court directed notice to the petitioner through telegram on her residential address at Lahore, as she was permanently living at her address of Lahore given in the title of instant petition. This time she filed an application under order 12(2) CPC on 24.10.1998 asserting that she gained knowledge of the ex-parte decree on 20.11.1997 on receipt of telegraphic notice from the executing Court. The petitioner pleaded in her application under Section 12(2) CPC fraud/misrepresentation qua the Court, exercised by Respondent No. 1.
Respondent No. 1 in response to notice on application under Section 12(2) CPC filed by the petitioner, appeared before the trial Court and filed an application under Order VII, Rule 11 CPC praying rejection of an application filed by the petitioner. The learned Civil Judge seized of the matter after getting reply to the application under Order VII, Rule 11 CPC, accepted the same and dismissed the application filed by the Petitioner vide order dated 16.5.2000.
The petitioner aggrieved of the judgment/order passed by the trial Court, filed a revision petition before the learned Additional District Judge, but remained un-successful, as the same was dismissed on 18.7.2000. She, thereafter, filed instant constitutional petition with the relief noted above, which was admitted to regular hearing and after completion of record has now been fixed for final hearing. Respondent No. 1 in response to notice by this Court, has appeared and was represented through his counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. It is admitted between the parties that they are real sister/brother and no transfer deed, agreement or receipt was ever executed by the petitioner who is married and is permanently living at Lahore, for transfer of her share in the joint property left by her father located at Gujranwala. It is also not denied by Respondent No. 1 that he had moved an application praying amendment of his plaint for declaration/permanent injunction for its conversion into suit for specific performance of the alleged oral agreement to sell with the petitioner. Record revealed that the petitioner was proceeded against ex-parte on 22.1.1995. Petitioner's stance in her application under Section 12(2) CPC was that she did not engage any counsel in the suit and did not appear/join the proceeding before the trial Court, earlier to the ex-parte decree dated 29.6.1995 sought to be adjudged by her. The learned Trial Judge sized of the matter on application of the Respondent No. 1 under Order VII, Rule 11 CPC took up both the matters simultaneously and rejected application under Section 12(2) CPC summarily. Application under Section 12(2) CPC as it stood did disclose a cause of action and was not barred by any law thus the same could not have been rejected by invocation of provisions of Order VII, Rule 11 CPC. Remedy of challenging a decree on the basis of fraud, misrepresentation or lack of jurisdiction under Section 12(2) CPC was provided in place of a separate suit and was to be tried in the same manner. Assertions made in the application did make out a case of fraud/misrepresentation qua the Court and the controversy could not be put to rest without recording of evidence. Assuming for the sake of arguments that claim of petitioner in her application if ultimately is found to be correct that she did not engage any counsel or she did not appear/join proceedings after setting aside of ex-parte decree dated 29.6.1995, the mischief of the provision of law under discussion, was fully attracted but the trial Court illegally opted to reject her application summarily. None of the Respondents Nos. 2 and 3 attended to the grievance of the petitioner that proceedings before the trial Court earlier to passing of decree dated 29.6.1995 were not being conducted, awaiting decision of the Revisional Court approached by Respondent No. 1 against the order whereby petitioner's application under Order IX, Rule 13 CPC was accepted.
Petitioner had specifically pleaded in her application under Section 12(2) CPC that original record of the trial Court had been summoned by the revisional Court and the matter was being adjourned by the trial Court on a "Parcha Yadashat". Record of the trial Court tentatively supported the stance of the petitioner, as the case was adjourned Sina die on 14.12.1993 on this account. Proceedings thereafter, were resumed on 13.4.1994 on receipt of file from the revisional Court but no body appeared for the parties and notices were ordered to be issued to their counsel. Likewise the order dated 23.6.1994 shows that case was taken in earlier part of the day but on account of absence of the parties/counsel it was kept in waiting. On the same day, in the latter part of the day the learned counsel for Respondent No. 1 appeared and application of the petitioner under Section IX, Rule 13 CPC which had already been accepted, was dismissed due to absence of the petitioner. Trial Court at the same time realizing this fact, passed another order of summoning of original file and marked presence of the learned counsel for the petitioner. This order is not only confused but also depicts that the petitioner was not personally served and instead presence of her earlier counsel was marked by the trial Court.
Petitioner's earlier application under Section IX, Rule 13 CPC had been accepted primarily on the ground that she was not served in the suit and had not appointed any counsel to concede the suit on her behalf. This order had become final by withdrawing of revision petition filed by Respondent No. 1 and in its presence, one fails to understand, how notice to the same counsel was opted to be issued and how his presence was again marked without notice/concurrence of the petitioner. Under law, on receipt of file from the revisional Court, notice should have been issued to the petitioner, instead of her counsel who was already held to have no authority to appear on behalf of the petitioner. Relevant portion of the judgment-dated 14.5.1992 is reproduced for convenience:--
"I have also perused the original plaint, written statement and order dated 13/12/87 passed by my learned predecessor, original plaint shows that disputed land no date of oral sale was mentioned in the plaint, 3. No consideration amount was given. So in the eye of law, Agreement with no consideration is void. Suit was instituted on 29.11.87 and was decreed on 13.12.87. The version of the petitioner is proved by the evidence of the respondent. The net sheet result of the above discussion is that the petitioner had not given any Vakalatnama to the respondent. The respondent fraudulently appointed Ejaz Nazar Sheikh Advocate on behalf of the Petitioner and submitted written statement and written reply fraudulently. The petitioner never signed upon the written statement and written reply. The respondent obtained decree in a suit for declaration by way of fraud and forgery at misrepresentation. The petitioner has proved this issue. Hence this issue is decided in favour of the petitioner and against the respondent."
(Under lining is mine, to high light relevant part of earlier judgment).
None of the Courts below bothered themselves to have a glance on the record, according to which original file of the suit was received by the Court of first instance, from the record room on 7.9.1994 when Respondent No. 1 filed an application for amendment of his plaint, praying its conversion to a suit for specific performance of the asserted oral agreement to sell. Reply to this application was not filed by the defunct counsel whereas her right of defence was closed on 22.1.1995. Trial Court appears to have accepted the application under Order VI, Rule 17 CPC unilaterally on 14.2.1995. Prima facie, after filing of amended plaint by Respondent No. 1 no effort was made to secure service of the petitioner because counsel who had been posing himself as her counsel, also stopped appearance after 22.1.1995.
No effort was made by any of the Courts below to look into the order of striking of defence which was apparently passed on an application under Order VI, Rule 17 CPC filed by Respondent No. 1, on account of non-filing of reply thereto which could not ensure to exclude the petitioner in the suit, after filing of amended plaint. Out of proceedings of the suit, the most sparkling thing was that after setting aside/re-call of ex-parte decree vide order/judgment dated 14.5.1992, petitioner was not required and never joined proceedings before the trial Court and this fact had to be decided by the trial Court with due, deliberations to be made on the basis of its record. All these observations have been deliberately made tentatively as I intend to remand this case back to the trial Court lest any observation by this Court may not prejudice the decision by the Court to whom the case will ultimately be entrusted for decision. In the circumstances of this case, summary rejection of application under Section 12(2) CPC was not at all justified. Especially when the petitioner was not much literate; was a housewife; was living at Lahore; was real sister of Respondent No. 1 who was apparently hunting for her property. During the hearing by this Court, the learned counsel for Respondent No. 1 could not justify the impugned order. The petitioner, as a matter of fact was condemned unheard and she was not given any opportunity to substantiate her case set up in her application under Section 12(2) CPC by leading evidence. She has been deprived of her proprietary rights in haphazard manner and the course adopted by both Respondents Nos. 2 and 3 cannot be justified on the touch stone of any canon known for administration of justice.
For the reasons noted above, both the judgments/orders dated 16.5.2000 and 18.7.2000 passed by Respondents Nos. 2 and 3 being illegal/void, are not sustainable at law, thus the same are declared to be so, by accepting instant petition and writ as prayed is issued, with the result that application under Section 12(2) CPC filed by the petitioner shall be deemed to be pending before the trial Court which shall be decided afresh in accordance with law. Parties are directed to appear before the learned District Judge on 18.5.2006 Gujranwala for entrustment of the case to any learned Civil Judge for its decision, as noted above. There will be no order as to costs.
(Rafaqat Ali Sohal) Case remanded.
PLJ 2006 Lahore 1424
Present: Syed Hamid Ali Shah, J.
NASEEM-E-SEHAR--Appellant
versus
Mrs. JABEEN IDREES etc.--Respondents
F.A.O. No. 101 of 2005, decided on 16.6.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, Rr. 1 & 2, O. XI, R. 1 & S. 10--Essential requirement for purchase of property--Respondent instituted a suit against the appellant for declaration and permanent injunction and then filed another suit against appellant for possession and recovery of damages--In subsequent suit respondent filed two applications one under O.XXXIX, Rr. 1 & 2 and another for appointment of receiver--Appellant filed an application u/S. 10 C.P.C. for stay fo procedings--Trial Court without deciding applications passed impugned order--Held: There is no impediment in entertaining interlocutory application for temporary injunction and for appointment of receiver, in a subsequent suit only trial of the suit is to be stayed. [P. 1427] A
Mr. Maqbool Ahmad and Ghulam Farid Sanotra, Advocate for Appellant.
Mr. Ali Zafar, Advocate for Respondents.
Date of hearing : 2.12.2005.
Judgment
The case of the appellants as set out in this appeal is that Appellant No.1 and Respondent No.1 being real sisters maintained the relationship of love, respect and trust. Appellant No.1 while accepting the suggestion of Respondent No.1, to invest her saving in the purchase of property, measuring 7 marlas, Bearing No.153-G Phase-1, D.H.A. Lahore, transmitted from abroad amounts in this respect, through banking and other channels. Appellant. No.1 thereafter provided further funds for construction of commercial plaza, considering that property is being purchased and the construction is raised thereon, is in the name of the appellants. When it revealed to the Appellant No.1 on her return to Pakistan that the property had been purchased in the name of respondents, she showed her annoyance and agitated. The respondents justified their action on the plea that the membership of D.H.A. is an essential requirement for the purchase of property in the vicinity. The property was purchased in the name of Respondent No.2 only to complete the formalities. The presence of vendee was necessary, therefore, the property was purchased first in the name of Respondent No.2 so that same be subsequently transferred in the name of Respondent No.1. The respondents, however, agreed that transaction shall be declared as Benami transaction on arrival of Appellant No.1. Appellant No.1 on this understanding became member of D.H.A. on 08.10.1995 vide Serial No. 019988. Half of the property was transferred to the appellant through Hiba-bil-Ewaz and it stood completed through Letter No. COM/463 dated 21.04.1996 and relevant entry in the record of D.H.A. has been incorporated at Serial No..019988, the Appellant No.1 is in procession of the plaza since then. Appellant No.1 assigned the task of management of the plaza to the respondents in the capacity of her managers, which was completed on 01.11.1993. The respondents failed to give satisfactory accounts of the income of the plaza, which gave cause to Appellant No.1 to rescind the authority of the respondents as manager of the property/plaza, in the months of October, 2003 and the possession was taken.
Respondent No.1 instituted a suit against the Appellant No. 1 for declaration and permanent injunction on 10.02.2004 wherein the declaration of gift and letter of transfer dated 21.04.1996 was sought to be declared as illegal, void and inoperative. Appellant No.1 contested the suit and evidence is being recorded. Learned trial Court vacated the interim stay, dismissed the application under Order XXXIX Rules 1 and 2 CPC vide order dated 30.09.2004. This order was challenged in F.A.O. No.250/2004. Respondent No.1 instituted another suit for possessions and recovery of damages against the appellant and Tariq Lateef a, lessee. against their illegal dispossession on 02.10.2004. The appellant also instituted a suit against respondents for declaration and permanent injunction with consequential relief of deletion of the name of the respondents from ownership of the suit property, wherein injunctive order was passed and the same is operative in favour of the appellants. The respondents in her subsequent suit filed two applications, one under Order XXXIX, Rules 1 & 2 and the other under Order XL, Rule 1 CPC for appointment of receiver. The appellants filed an application under Section 10 CPC, for stay of proceedings. Learned trial Court without deciding the application of the appellants, passed impugned orders dated 31.01.2005, wherein learned Court ordered the deposit of 1/2 of the amount of Rs. 1,65,000/- (rupees one lac sixty five thousand only) received from Respondent No. 2 in respect of agreement dated 20.10.2004 and deposit of 1/2 of the monthly rent in the Court, while deciding the application for appoint of receiver. The application for temporary injunction was allowed. Hence this appeal.
Learned counsel for the appellants has contended that the relief of temporary injunction has been denied to Respondent No.1, in her earlier suit. Subsequent suit has been filed inter se the same parties with regard to same property on the same cause. Subsequently suit was liable to be stayed under Section 10 CPC. An application in this respect was moved, but the learned Court has proceeded to pass impugned order, without deciding the application under Section 10 CPC. The suit was liable to be stayed, no other proceedings were competent before the Court except for the decision of application under Section 10 CPC, which was required under law to be decided first. Learned counsel has submitted that bar under Section 10 CPC is applicable to all classes of suits without any distinction, provisions of Section 10 CPC are mandatory in nature and Court is bound to stay the subsequent suit, the moment it is brought to its notice. Learned counsel in support of his contentions has placed reliance on the case of "Habib Bank Limited versus Ali Mohtaram Naqvi" (PLD 1987 Karachi 102). Learned counsel while referring to the cases of "Jannana De Malucho Textile Mills Ltd versus Waqar Ahmad Chaudhry" (PLS 1972 SC 34), "Mawas Khan versus Subedar Meher Dill" (PLD 1985 SC 215), "Dr Haider Ali Mithani and another versus Ishrat Swaleh and 4 others" (1991 CLC 409) and "Muhammad Amin versus Muhammad Yasin" (1991 CLC 1298) has contended that appointment of receiver is the harshest step and such power is to be used sparingly by the Court. Such power can be exercised only when there is no other mean to protect the right of the applicant. Learned counsel in support of his contention has relied upon the cases of "Muhammad Hussain and 2 others versus Muhammad Asghar and 2 others" (2004 MLD 1624) and "Miss Qamar Ali versus Syed Nadir Ali and others" (1993 CLC 605).
Learned counsel for the respondents on the other hand has fully supported the impugned orders. Learned counsel has submitted that Respondent No.1 was allotted the whole of suit land, out of which she has gifted 50 % property to the appellant. Affidavit of Respondent No.1, dated 16.10.1995, clearly stipulates that Respondent No.1 being owner has gifted the property. Appellant took over 50% of the property on the basis of gift. The acceptance of gift by the appellant is acknowledgement and admission by the appellant that the whole property vests in the ownership of the Respondent No.1 and the possession of Respondent No.1 with regard to the disputed property being its owner. Respondent No.1 kept rights, title and ownership of the property to the extent of remaining 50 % to her and it stands established through the transaction of gift. Learned counsel, however, submits that possession of the property subject-matter of gift, was not handed over to the appellant.
Heard learned counsel for the parties and perused the record.
The appellant has assailed the impugned orders mainly on the ground that in view of the pendency of application under Section 10 CPC, the Court has erroneously proceeded to decide the applications under Order XXXIX Rules 1 and 2 and Order XL Rule 1 CPC. Learned counsel emphasized that in a subsequent suit Court is not empowered to pass any order except to stay the proceedings. The arguments of the learned counsel for the appellant have no force. The phrase "no Court shall proceed with the trial of any suit" does not debar a party to institute a second suit but bar is to the extent of trial of the suit and stay would be operative so far as final decision of the suit is concerned. The scope and object of Section 10 has also been discussed in the case of "Sujanbai Haribhau Kakde and others versus Motiram Gopal Saraf and another" (AIR 1980 Bombay 188) wherein it was held that stay operates against the final decision, it cannot deprive the Civil Court from passing offers on interim applications and granting interlocutory reliefs such as interim injunction or attachment before judgment etc. The identical question was examined by the Hon'able Sindh High Court and it was held in the case of "SM. Akil Fikree versus Muhammad Qmaruz Zaman" (PLD 1982 Karachi 475) that in cases where trial has been stayed the Court will be competent to entertain and adjudicate upon interlocutory applications such as injunction applications, applications for attachment before judgment and appointment of receiver. AIR 1922 Bombay 276 was referred and considered by the Hon'able Court. Even the decree passed contrary to the provisions of Section 10 was held in the case of "Ghulam Mustaffa versus Family Judge Kharan and another" (PLD 1982 Quetta 63) not a nullity and cannot be disregarded. Similar view has been taken in the cases reported as AIR 1922 Bombay 276, AIR 1944 Nagpur 335 AIR 1979 Masur 53 and AIR 1982 MP 203.
The above survey of the case law reveals that there is no impediment in entertaining any interlocutory application such as application for temporary injunction or the application for the appointment of a receiver, in a subsequent suit. The Court can proceed in the matters relating to interlocutory orders, only the trial of the suit is to be stayed.
Learned trial Court has considered that the appellant has herself accepted the gift of the 50 % of the property and as such the ownership of Respondent No. 1 to the extent of remaining 50 % of the property stands established. The possession of Respondent No.1 in the disputed property stands confirmed through reports of Local Commissions appointed by two Courts at different points of time. The Courts while granting the interim relief through the impugned order has committed no illegality. The Court has considered various aspects of the controversy and then passed the impugned order. The dismissal of the application of the Respondent No.1, in the earlier suit has no bearing as in the earlier application the Respondent No.1 has claimed the injunctive order regarding whole of the property while in the instant application the relief of injunction was restricted in the extent of 50 %. The applications for temporary injunction and for appointment of receiver, have arisen on the cause of action accrued to the respondents on 02.10.2004, which is a subsequent act.
The impugned orders do not suffer from any illegality or legal infirmity, therefore, do not call for any interference. This appeal has no force and is dismissed accordingly.
(Malik Sharif Ahmed) Appeal dismissed.
PLJ 2006 Lahore 1428
Present: Jawwad S. Khawaja, J.
M/S MANDIALI PAPER MILLS LIMITED, LAHORE--Petitioner
versus
COLLECTOR OF CENTRAL EXCISE AND SALES TAX, CUSTOM HOUSE, LAHORE and 2 others--Respondents
W.P. No. 14544 of 1994, heard on 9.5.2006.
Sales Tax Act, 1990 (VII of 1990)--
----Ss. 3(1), R. 5 & Preamble--Constitution of Pakistan, 1973, Art. 199--Collection of sales tax--Petitioner was manufacturer of paperboard--Department admitted that petitioner has paid sales tax on the paper board at the rate specified in Section 3(1) of Sales Tax Act, 1990 and also department was not in a position to state the basis on which the impugned demand was raised against the petitioner without any express statutory provision allowing the purchaser's liability to be shifted on to the manufacturer was clearly unlawful--SRO 876(1) 94 has no application to manufactures and supplier of paper board--S. 3(3A) of the Sales Tax Act much after the issuance of S.R.O. 876(1)94 and S.R.O. 877(1)94, Department can not press into service these notifications against petitioner--Notifications could not be given retrospective effect--Petition allowed. [P. 1431, 1432] A, B, C, D, E & F
PLD 2001 SC 600 followed.
Mr. Anwar Kamal, Advocate for Petitioner.
Mr. Izhar-ul-Haq Sheikh, Advocate for Respondents.
Date of hearing : 9.5.2006.
Judgment
This petition was decided by me vide judgment dated 30.11.2001. The respondent department preferred an appeal which has been allowed and the matter remanded by means of a short order dated 24.2.2006 which is reproduced as under:-
"These appeals are by leave of the Court against the judgment dated 30.11.2001 of the Lahore High Court, Lahore.
Learned counsel for the respondents, when asked to explain as to whether directions made by this Court vide judgment dated 4th July, 2001 passed in C.P.Nos.1568-L/2001 to 1572-L/2001 have been complied with or not?. He stated that impugned judgment has been composed in accordance with earlier decision. But in our considered opinion it is not so.
Thus instead of dilating upon the merits of the case, we consider it appropriate to remand the cases to the High Court on setting aside the impugned judgment for fresh disposal of Writ Petitions expeditiously as far as possible within a period of 6 weeks strictly in accordance with the judgment dated 04.07.2001.
Appeals are allowed in the above terms. No order as to costs".
"It may be noted that it was incumbent upon the High Court to atleast have said few words whether under Rule 5 the department is empowered to call upon the respondents to explain as to why after deducting the sales tax at the rate of 750/- from the wholesalers, distributors, dealers or commission agents it has not been deposited in the Treasury etc. Surprisingly without advancing reasons for accepting the petition the conclusion has been drawn that Rule 5 of the SRO is not applicable on the cases of the respondents. Thus under the circumstances we are of the opinion that impugned judgments are not sustainable at all.
Therefore, for the foregoing reasons petitions are converted into appeals and allowed, as a consequence whereof impugned orders are set aside and cases are remanded to learned High Court for deciding the same on merits after providing opportunity of hearing to all concerned:.
"This case has been remanded by the Honourable Supreme Court by means of his order dated 4.7.2001 whereby the judgment rendered by another learned Bench of this Court dated 22.2.2001 passed in W.P.No. 13174/94 was set aside. The Honourable Supreme Court has observed that the aforesaid judgment dated 22.2.2001 has not fully discussed the relevant provisions of the Collection of Sales Tax on Paperboard Rules, 1994, and, in particular, Rules 5 thereof.
"(12) "manufacturer" or "producer" means a person who engages, whether exclusively or not, in the production or manufacture of goods whether or not the raw material of which the goods are produced or manufactured are owned by him; and shall include--"
"(31A) "Wholesaler" means any person who carries on, whether regularly or otherwise, the business of buying and selling goods by wholesale or of supplying or distributing goods, directly or indirectly, by wholesale for cash or deferred payment or for commission or other valuable consideration;"
"The wholesalers, distributors, dealers or commission agents of locally produced paperboard shall, before taking delivery of the paperboard from the manufacturer, pay sales tax at the rate of Rs.750/- (seven hundred and fifty rupees) per tone and every local manufacturer of paperboard shall, at the time of the delivery of the paperboard from the factory premises or place of storage, indicate in the tax invoice the registration number of the wholesalers, distributors, dealers or commission agents the amount of sales tax and the number and date of the treasury receipt (challan) whereunder the tax was deposited in the treasury.
Before me, learned counsel for the respondent department has argued that the petitioner, although a manufacturer of paperboard, also falls within the definition of a wholesaler of paperboard. This argument has been advanced on the basis that the petitioner not only manufacturers paperboard but also sells the paperboard in wholesale. As such, it has been argued by learned counsel for the respondent department that the petitioner has come within the ambit of the aforesaid Rules and is, therefor, liable to pay sales tax at the rate of Rs.750/-per ton.
Learned counsel for the petitioner, on the other hand, has argued that the petitioner is not a wholesaler because one necessary ingredient of the definition of wholesaler, reproduced above, is that only such person can be termed as wholesaler who is engaged in the business of buying and selling paperboard. The petitioner, according to learned counsel, does not buy paperboard, It merely manufactures and sells paperboard. In such circumstances, it is clear that the petitioner is not a wholesaler and, therefore, cannot be subjected to the regime established by the Collection of Sales Tax on Paperboard Rules, 1994.
Faced with the above situation, learned counsel for the respondent department has stated that the petitioner also buys paperboard and sells the same. This contention, however, is denied by learned counsel for the petitioner. In any event, this is a question of fact which need not be addressed in this case as it is not germane to the decision of the legal issue raised in the present petition.
In view of the above discussion, this petition is allowed and it is declared that the petitioner does not fall within the definition of wholesaler if it does not engage in the business of both buying and selling of paperboard."
Since the present remand order does not provide indication as to the portion of the previous remand order of 4.7.2001 which may not have been dealt with, I have asked learned counsel for both sides to argue the petition afresh. They have done so.
It is not in dispute that the petitioner is a manufacturer of paperboard. It is also admitted in the parawise comments of the respondent department that the petitioner has paid sales tax on the paperboard supplied by it, in accordance with and at the rate specified in Section 3 (1) of the Sales Tax Act, 1990. Learned counsel for the respondent department argued that the supplies of paperboard made by the petitioner were subject to the provisions of Rule 5 reproduced in my judgment of 30.11.2001. It was submitted that the said rule imposed a duty on the petitioner to give in its tax invoice, the information required under the said rule. According to learned counsel for the department, since this had not been done, the petitioner became liable to pay the amount of Rs.14,06,105/- demanded from it vide notice dated 8.11.94 which has been impugned in this petition.
The aforesaid submission is without merit for a number of reasons. First, as noted above, the petitioner has already discharged its tax liability by paying sales tax at the rate of 15 % ad valorem under Section 3 (1) of the Sales Tax Act. This has been specifically averred in para 7 of the writ petition and has been admitted by the respondent department in its parawise comments.
Additionally, learned counsel for the petitioner argued that the petitioner could not be held liable for payment of the disputed demand because there was no provision either in the Sales Tax Act or the rules referred to above whereunder the petitioner could be burdened with the liability placed on the recipient of the paperboard simply because the particulars, required under Rule, 5 were not mentioned in the tax invoice. There is merit in this submission. Learned counsel for the respondent department was not in a position to state the basis on which the impugned demand was raised against the petitioner. Here I may add that without any express statutory provision allowing the purchaser's liability to be shifted onto the petitioner (which is manufacturer), the impugned demand was clearly unlawful.
Thirdly, learned counsel for the petitioner argued that SRO 876(l)/94 levies sales tax on the recipient of paperboard and, therefore, has no application to the petitioner which, as noted above, is a manufacturer and supplier of paperboard and not a recipient. This contention is also well founded and could not be controverted by learned counsel appearing for the respondent department.
Fourthly, it was argued that in view of the law enunciated by the Honourable Supreme Court in case titled The Collector of Sales Tax and others Vs Superior Textile Mills Ltd and others (PLD 2001 SC 600), the notification SRO 876(1)/94 and the rules framed pursuant thereto vide SRO 877(1)/94 were without lawful authority. I have gone through the cited precedent and find that the ratio thereof applied in the present case also. Learned counsel for the department was not in a position to cite any law to the contrary. He conceded that sub-section (3A) was introduced into Section 3 of the Sales Tax Act much after the issuance of Notifications SRO 876(1)/94 and SRO 877(1)/94. In the circumstances, I do not see how the department can press these notifications into service against the petitioner.
Fifthly, the two notifications were issued on 8.9.94 but were made effective from 1.7.94. The impugned demand also has been made from 1.7.94 to 31.10.94. Learned counsel for the Petitioner rightly argued that the notification could not be given retrospective effect. This legal preposition is, by now, well settled and was not contested on behalf of the respondent department.
The reasons discussed above provide ample justification for allowing this petition. However, in order to ensure that the observations of the Honourable Supreme Court in the two remand orders have been duly addressed, I have also considered the question noted by the Honourable Supreme Court in its order dated 4.7.2001 in the following words:
"It may be noted that it was incumbent upon the High Court to atleast have said few words whether under Rule 5 the department is empowered to call upon the respondents to explain as to why after deducting the sales tax at the rate of 750/- from the wholesalers, distributors, dealers or commission agents it has not been deposited in the Treasury etc".
With utmost respect, in my humble opinion, the above question does not arise in the present case. It is not the case of either party (whether in the pleadings or during arguments) that the Petitioner has deducted sales tax from wholesalers etc. In the circumstances, there can be no question of deposition the said amount in the treasury.
In view of the foregoing discussion, this petition is allowed and the impugned demand raised by the respondent department is set aside being without lawful authority. The Petitioner shall be entitled to its costs.
(Malik Sharif Ahmed) Petition allowed.
PLJ 2006 Lahore 1433 [Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
ABDUL GHAFFAR--Petitioner
versus
MUHAMMAD RAFIQ--Respondent
C.R. No. 80 of 2006, decided on 17.2.2006.
Punjab Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Civil Procedure Code (V of 1908), S. 115--Application for ejectment of respondent--Legality--Suit building given on rent to respondent who entered into partnership with respondent and set up a factory in said building--Respondents defaulted in payment of rent--Respondents were proceded ex-parte case adjourned for ex-parte evidence--Respondent was directed to deposit arrears of rent statement of respondent that he has not deposited the rent, his defence was struck off and was directed to handover vacant possession of demised premises to petitioner and to make payment arrears of rent later an execution was filed a warrant for possesison executed possession delivered to petitioner/ respondent filed an application for restoration of possession in the course of execution proceedings rent controller directed the restoration of possession and found that there was no order of ejectment against respondent--First Appeal filed by petitioner has been dismissed by A.D.J.--Rent Controller acted in reckless manner without any application of mind resulting in the dis-possession of respondent against whom no ejectment order was passed who of course, had not committed any default of any order passed against him for deposit of rent--Not only possession was illegaly taken away and delivered to petitioner--Orders passead by Courts below are not only legal but emminently just--Revision dismissed. [P. 1436] A, B & C
Syed Hamid Ali Shah Mir, Advocate for Petitioner.
Date of hearing : 17.2.2006.
Order
On 14.10.2002 the Petitioner filed an application for ejectment of the respondent. I deem it necessary to note here that the respondent (Muhammad Rafiq) was arrayed as Respondent No. 1 while Muhammad Mukhtar son of Muhammad Yamin was arrayed as Respondent No.2. This person has not been impleaded as a party in this civil revision. Now it was pleaded in the ejectment petition that the Petitioner and his brothers and sisters gave the suit building on rent to the said Respondent No.1 on 1.10.2000 subject to payment of Rs.12,000/-per month as rent and delivered possession to him. Thereafter, the said Respondent No.1 in partnership with the said Respondent No.2 set up a factory in the said building. The N.O.C is in favour of the said Respondent No.1 and his wife Nasim Akhtar. Thereafter, it was stated that the respondents have defaulted in payment of rent and have also impaired the value and utility of the building and further that it is required by the said owner/landlord for personal use and occupation. Both the said respondents were proceeded against ex parte on 18.1.2003 pursuant to publication as notice in a newspaper. The case was adjourned to 8.2.2003 for recording ex parte evidence. It was so adjourned for several dates. On 17.5.2003 it was noted that an Advocate has filed power of attorney for the said Respondent No. 2 and an application for setting aside the ex parte proceedings has also been filed. This application was allowed on the statement of learned counsel for the petitioner on 2.7.2003. On 13.9.2003 a written reply was filed by the said Respondent No.2. The case was adjourned for framing of the issues. It may be noted here that a copy of this reply has not been filed with this civil revision.
"2. Today the Respondent No.2 has got recorded his statement to the effect that he has not deposited the said rent. Therefore, in non-compliance of the order dated 14..4.2004 passed by this Court the defence of the Respondent No.2 is hereby struck-off. Respondent No. 2 is directed to hand over the vacant possession of the demised premises immediately to the petitioner and will be also liable to make payment of the above said arrear of rent and also monthly rent at the rate of Rs. 12000/- per month till the delivery of possession so the petition is accepted in the above said terms. File be consigned to the record room after its due completion."
On 17.5.2004 an execution petition was filed. On 18.5.2004 a warrant for possession was issued. This warrant was executed at the spot by the Bailiff who delivered possession to the petitioner on 23.5.2004.
In the meanwhile on 19.5.2004 the respondent filed an application for setting aside of the said order dated 13.5.2004. On the same date, a stay order was issued.
On 9.10.2004 the respondent filed an application for restoration of possession in the course of execution proceedings. Vide order hated 30.5.2005 the learned Rent Controller directed the restoration of possession. His finding was that there is no order of ejectment against the respondent. A first appeal filed by the petitioner has been dismissed by a learned Additional District Judge, Multan, on 3.2.2006.
Learned counsel for the petitioner concedes that the said ejectment order does not show that the respondent was directed to deliver possession to the petitioner. He, however, insists that since the said application for setting aside of the ex parte ejectment order dated 13.5.2004 has been fixed for evidence, the order should have been passed after the decision of the same after recording evidence.
I have already detailed above the entire history of this case as gleaned from the several documents appended with this writ petition. Now the ejectment petition clearly narrates that it is the respondent who is the tenant and to whom the possession was delivered. So far as the Respondent No.2 in the ejectment petition is concerned, it is an admitted that he is the brother's son of the petitioner and he was stated to be a partner of the respondent in the factory that was installed under the terms of the tenancy agreement. The Rent Controller earlier dealing with the matter had clearly expressed doubt while recording order dated 14.10.2003 as noted by me above. Somehow or the other a direction was issued to the said Respondent No.2 on 14.4.2004 to deposit arrears and future rent. It will be interesting to note that although no date was fixed for deposit of arrears which were calculated as Rs.5,04,000/- from 1.11.2000 to 14.4.2000 still he was found guilty of non-compliance of the said order. So far as the future rent is concerned that was to be deposit before 15th of the following month which was May, 2004 and the ejectment order was passed on 13.5.2004 i.e. before the default could have taken place even in the matter of future rent. It is but evident on the face of the record that the learned Rent Controller acted in a reckless manner without any application of mind whatsoever to the file of the case resulting in the dis-possession of the respondent against whom no ejectment order was passed who, of course, had not committed any default of any order passed against him for deposit of rent. I may further note here that the proceedings and report of the bailiff on the warrant of possession (Annes'''J') narrate that the said Respondent No.2 has removed the entire goods. The said report further narrate that the bailiff found the said Respondent No,2 and a son of the respondent and a Security Guard on the spot who were shown the warrant whereupon the Respondent No.2 removed the machinery, etc. and delivered possession to the petitioner. It will, thus, be seen that not only the possession was illegally taken away and delivered to the petitioner but his nephew also removed all the machinery present at the spot.
To my mind, the orders passed by the learned Courts below are not only legal but eminently just. The civil revision is dismissed in-limine.
A copy of this order be immediately remitted to the learned Executing Court who shall take all steps to deliver back the possession with the same witness that with which it was taken over from the respondent
(Malik Sharif Ahmed) Revision dismissed.
PLJ 2006 Lahore 1436 (DB)
Present: Sayed Zahid Hussain & Jawwad S. Khawaja, JJ.
WATAN PARTY through its PRESIDENT, LAHORE--Appellant
versus
FEDERATION OF PAKISTAN through LAW SECRETARY, MINISTRY OF JUSTICE AND PARLIAMENTARY AFFAIRS (JUSTICE DIVISION) ISLAMABAD and 7 others--Respondents
I.C.A. No. 559 of 2004, decided on 22.5.2006.
(i) Constitution of Pakistan, 1973--
----Arts. 193 & 197--Intra Court Appeal--Appointment of Additional Judges of High Court--Notification was assailed--Five Judges were appointed through notification, four of them have ceased to hold office i.e. three due to retirement and one of them on expiry of term as Additional Judge--Only one of them continues to hold office who had been appointed confirmed as Judge under Art. 193 of Constitution of Pakistan, 1973--Held: If appointment to High Court as Judge is promotion whereas language and mandate of Art. 197 of Constitution of Pakistan, 1973 relating to appointment of Additional Judges and Art. 193 about appointment of High Court Judges does not lend support to such approach. [Pp. 1437 & 1438] A & B
(ii) Constitution of Pakistan, 1973--
----Art. 197--"Appointment" as distinct from "Promotion"--Provisions of--Constitutional Petition--Provisions of Art. 197 of Constitution make it clear that it is appointment as distinct from "promotion"--It might be observed that seniority may one of factors to be taken into consideration while considering suitability and fitness of a person to be appointed as a Judge but is not whole and sole factor or criteria for such appointment--Held: High Court found no valid basis to hold or to interfere in matter--Intra Court Appeal was dismissed. [P. 1438] C
Barrister Zafar Ullah Khan, Advocate for Appellant.
Dr. Danishwar Malik, Deputy Attorney Genral for Pakistan.
Date of hearing : 22.5.2006.
Order
Sayed Zahid Hussain, J. The case is still at motion stage but we have given extensive hearing to the learned counsel.
Writ Petition No. 3930/2002 through which the appointment of Respondents Nos. 4 to 8 as Additional Judges of this Court made vide Notification dated 26.2.2002 had been assailed by the appellant, was dismissed by a learned Judge in Chamber on 26.10.2004. This Intra Court Appeal has been filed against the same. It may be noted that out of the five learned Judges who were appointed through the above-mentioned notification, four of them have ceased to hold office i.e. three due to retirement and one of them on expiry of term as Additional Judge. Only one of them continues to hold office who had been appointed (confirmed) as Judge under Article 193 of the Constitution of Islamic Republic of Pakistan, 1973.
The learned counsel for the appellant has been heard who has reiterated the contentions which were raised by him and elaborately mentioned by the learned Judge in the judgment while dismissing the petition. He is main contention is that elevation of Respondents Nos. 4 to 8 as Judges of the High Court be declared as illegal and malafide as the seniority of the District & Sessions Judge of the Province was not kept in view rather it was ignored and violated.
Though such a plea has been duly adverted to in the judgment under appeal and the precedents sought to be relied upon by the learned counsel also find mention in the judgment yet we have on consideration of the matter found the contentions of the learned counsel as untenable. The same proceed on the assumption as if the appointment to this Court as Judge is a promotion' whereas the language and mandate of
Article 197 of the Constitution of Islamic Republic of Pakistan, 1973 relating to the "appointment of Additional Judges" and of Article 193 about the "appointment of the High Court Judges" does not lend support to such an approach. There is a marked distinction between "appointment" and "promotion" which is well understood in the context- See for instance the case of Supreme Court Bar Association through President and others v Federation of Pakistan and others (PLD 2002 S.C. 939). Sometimes, such an
"appointment" is said and described as "elevation" which is misnomer. Such an expression is ordinarily used to bestow respect and dignity because of the prestigious and exalted position of a Judge of Superior Court.
But it remains an "appointment" in the constitutional sense with all its manifestations. Even the Notification dated 26.2.2002 issued under Article 197 of the Constitution of Islamic Republic of Pakistan, 1973 vide which the appointment of Respondents Nos. 4 to 8 was made as Additional Judges of the
Lahore High Court also goes to show that it was anappointment'. Thus the tenor of the Notification dated 26.2.2002 as also the provisions of Article 197 of the Constitution make it clear that it is "appointment" as distinct from "promotion". It is consistent with the provisions of
Article 197 as also Article 193 of the Constitution. It may be observed that seniority may be one of the factors to be taken into consideration while considering the suitability and fitness of a person to be appointed as a Judge but is not the whole and sole factor or criteria for such
"appointment". On consideration of the matter, we find no valid basis to hold otherwise or to interfere in the matter.
The Intra Court Appeal is dismissed accordingly.
(Rafaqat Ali Sohal) Appeal dismissed.
PLJ 2006 Lahore 1438
Present: Sayed Zahid Hussain, J.
NADIR ALI--Petitioner
versus
SECRETARY REGIONAL TRANSPORT AUTHORITY, FAISALABAD and another--Respondents
W.P. No. 2084 of 2006, decided on 30.3.2006.
Constitution of Pakistan, 1973--
----Art. 199--Pendency of suit--Held: Petitioner was guilty of suppression of material facts and information from the Court who filed the petition without making such a disclosure--No indulgence could be shown to such a petitioner nor his conduct of concealment of material information and suppression of pendency of the suit be condoned--Petition falls within realm of equitable and discretionary jurisdiction wherein the conduct of the petitioner assumed significant importance--Petitioner was not only disentitled him to be heard due to concealment of facts, he has also liable to be burdened with penalty--Petition dismissed. [P. 1439] A
Mr. M. D. Tahir, Advocate for Petitioner.
Mr. Aamir Rehman, Additional Advocate General Punjab with Rai Allah Ditta, Inspector Traffic, Faisalabad for Respondents.
Date of hearing : 30.3.2006.
Order
Report and parawise comments have been submitted wherein it has been disclosed that the same petitioner had filed a civil suit qua the same subject-matter and cause of action which was pending in the Civil Court at Faisalabad. Today the learned Additional Advocate General, Punjab has placed on record attested copy of the proceedings of the trial Court in the suit titled "Rana Nadir Ali. v Secretary R.T.A. and others". The learned counsel for the petitioner, however, wishes to seek instruction from the petitioner and also to address the Court that notwithstanding the filing/pendency of the suit, petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is still competent.
I do not consider it necessary that the learned counsel need any further instruction from the petitioner inasmuch as the perusal of the order sheet/proceedings of the trial Court in the suit mentioned above go to show that the said suit was filed on 30.3.2004 which was pending before the trial Court when the present petition was filed in this Court on 7.3.2006. No mention/disclosure about the pendency of the suit has been made in the petition. The suit was then withdrawn from the trial Court on 21.3.2006. Such devious mode adopted by the petitioner can hardly be countenanced, overlooked or condoned. I am not unmindful of precedents where the petitions were entertained despite pendency of the suit but in such cases it was candidly stated and disclosed that the suit was not the adequate remedy in the context of the controversy. In the present petition, however, the factum about the suit which had been filed by the petitioner, was pending and being prosecuted by him for the last two years, was not at all disclosed in the petition. The petitioner undoubtedly is guilty of suppression of material facts and information from the Court who filed the petition without making such a disclosure. No indulgence can be shown to such a petitioner nor his conduct of concealment of material information and suppression of pendency of the suit be condoned. Indeed petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 falls within the realm of equitable and discretionary jurisdiction wherein the conduct of the petitioner assumes significant importance. The conduct of the petitioner herein not only disentitles him to be heard due to concealment of facts, he is also liable be burdened with costs/penalty.
The petition is dismissed accordingly with costs of Rs. 10,000.
(Fouzia Fazal) Petition dismissed.
PLJ 2006 Lahore 1440
Present: Ali Nawaz Chowhan, J.
WAPDA, WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA) through its CHAIRMAN and 3 others--Petitioners
versus
MUHAMMAD JAVED and another--Respondents
W.P. No. 3693 of 2005, heard on 15.5.2006.
Electricity Act, 1910 (IX of 1910)--
----Ss. 26(6) & 26-A--Electric Inspector--Jurisdiction--Power of licence--Detection bill--Scope--Held: Electric Inspector has no jurisdiction to adjudicate on a matter pertaining to a detection bill and therefore exercise of jurisdiction or any opinion expressed thereon was an illegal act. [P. 1441] A
2004 SCMR 1679, rel.
Mr. Aurangzeb Mirza, Advocate for Petitioners.
Mr. Muhammad Ali Kausar, Asstt. Electrict Inspector for Respondents.
Date of hearing : 15.5.2006.
Judgment
This judgment will dispose of Writ Petitions Nos. 3693/2005 and 1434/2004.
Through these writ petitions the orders of the Electric Inspector are under review on grounds of jurisdiction. These orders relate to detection bills whereby he ordered that the detection bills will be charged on the basis of the 30 % of load factor and 40 % in the other case.
Whether in a detection bill, the Electric Inspector can sit in adjudication, is the main concern. In this connection, the judgment given by the Apex Court in Civil Petition No. 2971-L/2004 is important and its relevant excerpt is re-produced below:
"Thus, as the law declared stands today, in cases of theft of electricity or illegal abstraction of energy, the Electric Inspector has no jurisdiction to adjudicate a dispute and it is only the Court of plenary jurisdiction who could resolve such a controversy".
In this judgment, reference is also made to the case of WAPDA and others Vs. Mian Muhammad Riaz and another (1995 Lahore 56) and to the case of Colony Textile Mills Multan Vs. Chief Executive, Multan Electricity Power Company Ltd. and two others (2004 SCMR 1679). The relevant portions of the said judgments relied upon by the Hon'able Apex Court are given in the judgment itself.
Respectfully agreeing to the interpretation of the Electricity Act as given by the Apex Court, this Court is of the view that the Electric Inspector has no jurisdiction to adjudicate on a matter pertaining to a detection bill and, therefore, the exercise of jurisdiction or any opinion expressed thereon was an illegal act.
Disposed of.
(Rafaqat Ali Sohal) Petition disposed of.
PLJ 2006 Lahore 1441 [Rawalpindi Bench Rawalpindi]
Present: Syed Shabbar Raza Rizvi, J.
JAFAR ALI ALVI--Petitioner
versus
DISTRICT & SESSIONS JUDGE, ISLAMABAD and 4 others--Respondents
W.P. No. 2403 of 2005, decided on 28.4.2006.
(i) Criminal Procedure Code, 1898 (V of 1898)--
----S. 188--Pakistan Penal Code (XLV of 1860), S. 489-F--Requirements--Offence was committed outside of Pakistan--Held: Registration of a case existence of correct or incorrect facts is not a requirement; information must disclose commission of a cognizable offence--Issued cheques were presented at Islamabad where respondent was maintaining his account therefore, legal action ought to had been initiated in relevant police station. [P. 1443] A & B
(ii) Police Rules, 1934--
----R. 25.2--Fair investigation--Obligation of police--Held: Fair and independent investigation was a statutory right and the same time obligation of police--Courts could neither directly interfere nor influence investigating officers in investigation--Petition dismissed. [P. 1443] C
Sardar Muhammad Latif Khan Khosa, Advocate for Petitioner.
Dr. Z. Babar Awan, Advocate for Complainant.
Mr. Tanvir Iqbal, AAG.
Date of hearing : 28.4.2006.
Order
The petitioner filed this writ petition challenging the order of the learned Sessions Judge, Islamabad dated 14.7.2005 passed by the learned Sessions Judge, Islamabad whereby FIR No. 192/05 was registered under Section 489-F PPC at P.S. Kohsar, Islamabad.
The learned counsel offered grounds that the learned Sessions Judge had no jurisdiction to make observations like, "it is an admitted fact that the cheques issued by Respondent No.2 were presented at Islamabad within the local limits of P.S. Kohsar, Islamabad, where the respondent is maintaining his account" . According to the learned counsel, these facts are no correct. The learned Sessions Judge also referred to Section 188, Cr.P.C. According to the learned counsel, pre-requisite of Section 188 Cr.P.C. were not fulfilled, therefore, reliance on Section 188 was absolutely incorrect and unwarranted. No certificate or approval was obtained from the political agent or from the Federal Government before passing order for registration of FIR. He further submitted that the cheques were issued from a company to company and cheques were not issued from an individual to individual, therefor, as such no offence was committed. The learned counsel submitted that Section 489-F PPC is not a valid piece of legislation. In this regard, he refers to a judgment of this Court passed by my learned brother Muhammad Akhtar Shabbir J. He also submits that dispute between the parties which is made basis, for registration of FIR was already decided by Civil Court in United Arab Emirates on 21.1.2004.
On the other hand, the learned counsel for the complainant (Respondent No.4) submitted that in prayer clause of this writ petition validity of section 489-F PPC was not challenged. He further submits that whether the facts disclosed in the FIR or in the impugned order are correct or incorrect, they can only be determined through a proper investigation which cannot be undertaken under the constitutional jurisdiction. He further submitted that jurisdiction of the ex-office Justice of the peace/Sessions Judge, Islamabad under section 22-A Cr.P.C. is to be considered with provisions of section 154 Cr.P.C. which do not require correct or incorrect information in relation registration of an F.I.R. It only requires commission of a cognizable offence. He further contended that non-compliance of provisions of Section 188, Cr.P.C. is not a ground for quashment of FIR.
I have considered the arguments of both the learned counsel with due consideration and attention. Whether Section 489-F PPC is a valid and a living law or not ? I have already passed a judgment on this point reported in 2005 P.Cr.LJ 1462, and I stick to my expressed in the said judgment; detailed reasons are already offered in the said judgment. No political agent exist in the terrotory in which the alleged offence was committed. It may be pointed out that Criminal Procedure Code was enacted for the Sub-continent but not for U.A.E. This part of Section 188, Cr.P.C. is only attracted if there is any political agent in the area where occurrence took place. As far as first part of Section 188 Cr.P.C. is concerned, it applies only to a citizen of Pakistan when he commits an offence at any place without or beyond the limits of Pakistan and if there is no political agent, the sanction of Federal Government shall be required. It has been reported in NLR 1999 SD 217, that sanction under Section 188 Cr.P.C. is a procedural requirement and can be produced even after submission of challan in a Court of competent jurisdiction. In a recent judgment reported as PLJ 2005 Lahore it has been held that permission can be secured even after submission of challan. Therefore, on this ground the order of the learned Sessions Judge or the FIR cannot be quashed. What is the impact of cheques issued by a company or signed on behalf of a company, in my humble view, requires investigation. Likewise, I agree with the learned counsel for the complainant that for registration of a case existence of correct or incorrect facts is not a requirement; requirement is that the information must disclose commission of a cognizable offence. I think, this proposition is well settled and does not require further elaboration elaboration.
As a result of the above discussion and reason, this writ petition is dismissed. However, before I conclude, the I.O. is directed not to take any notice or influence of observations made by the learned Sessions Judge in the impugned order dated 14.7.2005 i.e. "it is an admitted fact that the cheques issued by the Respondent No.2 were presented at Islamabad within local limits of Police Station Kohsar, Islamabad where respondent is maintaining his account, therefore, legal action ought to have been initiated against the delinquent by Kohsar Police Station". Likewise, it is observed by the learned Sessions Judge that, "issuance of the cheques by Respondent No. 2 in favour of the petitioner and bounding of the some is a hard fact, and established through documents/bank memos. Prima facie, it stands established that Respondent No.2 is guilty of a cognizable offence". Fair and independent investigation is statutory right and the same time obligation of police. The Courts can neither directly interfere nor influence investigating officers in investigation. The I.O is directed that while investigating the instant FIR, he will bear in mind his responsibility and seek guidance from Rule 25.2. of the Police Rules, 1934.
(Fouzia Fazal) Petition dismissed.
PLJ 2006 Lahore 1444
Present: Syed Sajjad Hussain Shah, J.
Mrs. NAHEED RANA, PRINCIPAL, LADY MACLAGAN COMMUNITY MODEL GIRLS COLLEGE, LAHORE--Petitioner
versus
NAHEEDA SHAMEEM, CHAIRPERSON, SCHOOL COUNCIL/ HEADMISTRESS LADY MACLAGAN GIRLS HIGH SCHOOL, LAHORE and 3 others--Respondents
R.S.L.A. No. 119 of 2005, decided on 15.5.2006.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 265-K 249-& 249-A--Power of acquittal--Held: During the trial at any time, the trial Court could pass order of acquittal--Used of expression "at any stage" of the case was indicative enough of the intention that any such stage could be the very initial stage after taking cognizance or it could be a middle stage after recording some proceedings or even it could be later stage as well--Petition dismissed. [P. 1446] A & B
Mr. Farhad Ali Shah, Advocate for Petitioner.
Mr. Sohail Zahoor, Advocate for Respondents.
Mr. Muhammad Arif Bhinder, Additional Advocate-General.
Date of hearing : 15.5.2006.
Order
This is a petition for Special Leave to Appeal against the order passed by the learned Additional Sessions Judge, Lahore on 01.12.2005 whereby he acquitted Respondents Nos. 1 to 3 by accepting their petition under Section 265-K Cr.P.C.
It is contended that the learned trial Court summoned the respondent vide order dated 21.09.2005 by observing that prima facie case is made out against the respondents. Thereafter the acquittal of the respondents without recording the evidence amounts to review of earlier order which was not permissible. Further contended that the learned lower Court acquitted the respondents on the main ground that the respondents did not come without mischief of land grabbers, however, section of the Illegal Dispossession Act, 2005 covers any kind of dispossession or occupy is without lawful authority. It is further contended that the Illegal Dispossession Act, 2005 is a Special Law and there is no bar to proceed under this Act inspite of the fact that the civil suit is pending between the parties and prays for setting aside the order of acquittal dated 01.12.2005.
On the other hand, learned counsel for the respondents submits that in fact NGO, Millat-e-Islamia Welfare Society represented by Rana Nadeem Ahmad being Chairman of the society was only allowed to access the Government school for a few years under contract and said contract was cancelled by the competent authority on 19.03.2005 as well as CPP Project and Since 19.3.2005, the appellant had not been allowed to run the community school. The school counsel was constituted by the District Government headed by Illaqa Nazim who was directed to take over the charge of school. Further contended that on the instructions of District Education Officer, the school council take over the charge of the school on 19.03.2005 and the charge of the above community school was handed over to the Senior Head Mistress, Lady Maclagon Girls High School, Laaj Road, Lahore under the instructions of the Government. The Chairman of the said NGO had tried to illegally trespassed into Government building for which FIR has been lodged against the said Chairman and the school council had filed suit for permanent injunctive against the said NGO and an interim injunction order was granted by the competent Court of law. It is further submitted that the appellant concealed this fact from this Hon'able Court as well as from the trial Court that she filed an application under Section 22-A & 22-B Cr.P.C. titled Mst. Naheed Rana v. DPO, Lahore in which she admitted that she and her staff has been stopped from entering into the institution since 15.04.2005 i.e. before promulgation of this Act. It is further contended that respondents are Government servants and have to act and obey the lawful orders of the authority and school council had discontinued the classes taken by the said NGO since 19.03.2005 before the promulgation of the said Act. In support of this contention, the respondents referred the order dated 11.05.2006 of the Court of Mian Tariq Mehmood, learned Civil Judge, Lahore in case titled Mst. Naheed Rana v. Naheeda Shamim for permanent injunction with consequential relief which is placed on the record.
Arguments heard. Record perused.
It is evident from the record that agreement with the appellant was cancelled on 19.03.2005 and school council had discontinued the classes under taken by the petitioner and there after not allowed her to enter into the school. There after the appellant moved certain applications in which it was clearly mentioned that the said NGO i.e petitioner was dispossessed by the appellant on 21.03.2005. She and her husband both moved different complaints in this respect. It is also evident from the record that on 24.03.2005, the husband of the appellant filed a petition before the Justice of Peace and during its pendency the appellant and her husband tried to enter into school premises forcibly on 28.03.2005 and FIR was got registered. There after the appellant filed an application under Section 22-A & 22-B Cr.P.C. on 29.07.2005 in which she admitted that she was restrained to enter in the school, therefore, it is evident that before promulgation of Illegal Dispossession Act, 2005 she was not allowed to enter into the premises of the school and, therefore, the Illegal Dispossession Act, 2005 was not in field and the respondents cannot be tried under the provisions of said Act. Even otherwise, the respondents are Government servants and they have not acted in their private capacity and they acted bonafidely on the directions and instructions of the Government and they cannot be penalized. The contention that the learned trial Court could not pass order under Section 265-K, Cr.P.C. has no force Section 265-K Cr.P.C. is reproduced here under:
"Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case; if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence".
It is crystal clear that during the trial at any time, the trial Court can pass such order. In this regard reference may placed on State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto (1993 SCMR 523) wherein it was held that expression "at any stage" in both the provisions recording of the prosecution evidence was not a condition precedent for acquitting an accused under Section 249-A, Cr.P.C. or under Section 265-K, Cr.P.C. It is further held that the legislature in its wisdom did not leave the question of the recording of the evidence as a condition before taking action under either of the provisions. The use of the expression at any stage of the case is indicative enough of the intention that any such stage could be the very initial stage after taking cognizance or it could be a middle stage after recording some proceedings and/or even it could be later stage as well. Reliance may also be placed upon Muhammad Khalid Mukhtar v. The State through Deputy Director, FIA (CBA), Lahore (PLD 1997 Supreme Court 275).
For the foregoing reasons, this appeal is without any force, hence, the same is dismissed.
(Fouzia Fazal) Appeal dismissed.
PLJ 2006 Lahore 1446
Present: Sh. Hakim Ali, J.
PICIC--Petitioner
versus
Mst. ZAHIDA KHANUM--Respondent
W.P. No. 1894 of 2005/BWP, heard on 16.12.2005.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 12(2) & 152--Amendment of plaint or recalling of order--Flag of justice high substantial justice has to be done--Technicalities mistakes--Fraud vitiate the most solemn proceedings even and the decrees, orders or the judgments obtained in pursuits of these intentions or actions are to be reviewed, reversed, recalled or upset--An authority if can do act or pass an order, judgment or decree, it can undo it also but with some exception also, if the authority has been defrauded in the passage of that act, order or judgment--Formal defects, technical faults, clerical or arithmetical mistakes, wrong drafting of suit, appeal, review or revision or any petition, incorrect quoting omission of section, Article of law or misquoting of a Rule or Regulation, cannot deprive a genuine claimant and real contestant--If Court has got the jurisdiction to undo a fraudulent order obtained, then all these irrational technicalities and formalities should not deprive a real and genuine litigant--Contents of an application and the prayer of a litigant are to determine the fate of the suit, appeal or petition--Court is not to act in furtherance of depriving a genuine litigant upon these technicalities--Substantial and real, genuine litigant, leaving aside all these formal and minor technicalities, hindering the both of doing justice--Petition accepted. [Pp. 1451, 1452 & 1453] A, B & C
Mr. Neel Keshav, Advocate for Petitioner.
Sardar Muhammad Hussain Khan, Advocate for Respondent.
Date of hearing: 16.12.2005.
Judgment
To reach on a correct decision, the material facts necessary for the disposal of this writ petition are to be comprehended before examining and discussing the arguments of both the learned counsels.
The facts as narrated by both the learned counsels and found from the record in brief are that PICIC, the petitioner, who had granted loan to M/s. Hafiz Brothers (Pvt.) Ltd., and others had filed a suit for recovery of Rs.1,47,27,279/- against M/s. Hafiz Brothers (Pvt.) Ltd., and others, before the learned Judge Banking Tribunal at Karachi. The suit was decreed on 10.1.1994 with mark up and 20 % liquidated charges. As the mortgaged property was situated at Rahimyar Khan District, therefore for execution, the decree was transferred to Senior Civil Judge, Rahimyar Khan. After this litigating period, Mst. Zahida Khanum, Respondent No. 1, filed a suit in the Court of learned Judge Family Court at Rahimyar Khan with regard to this mortgaged property claiming it to be property of her dower and got the decree of dower in her favour from the learned Judge Family Court Rahimyar Khan on 17.9.1999. It is pertinent to point out that Mst. Zahida Khanum was wife of one of the judgment debtor namely, Haji Muhammad Anwar, therefore, Haji Muhammad Anwar particularly and the other partners and judgment debtors were commonly and fully aware of the litigation of PICIC, which had culminated into a decree, passed in favour of PICIC on 10.1.1994 for recovery of Rs. 1,47,27,279/-, even then decree was got passed from the learned Judge Family Court, with regard to that mortgaged property without impleading the PICIC in that family suit. When it became known to the PICIC, it filed an application under Section 152 of the C.P.C., before the learned Judge Family Court for recalling of this judgment and/or modifying the decree by correcting the mistake. The application was dismissed by learned Senior Civil Judge on 20.12.2002. The appeal was filed against that order/judgment before the learned District Court on 14.5.2003. Learned Additional District Judge remanded the case to the learned Senior Civil Judge by setting aside the impugned order dated 19.12.2002 (in fact the order was passed on 20.12.2002 but mistakenly and inadvertently it was noted as 19.12.2002). The learned Additional District Judge directed the learned trial Court to frame the appropriate issues, with regard to the validity and correctness of the decree in question (dower decree) and after recording the evidence of the parties, to make a decision afresh in accordance with law. On 24.5.2003, the learned Senior Civil Judge framed the issues. PW-1 (Muhammad Ali Haider) was produced by the PICIC in evidence whose statement was recorded, but the learned Senior Civil Judge on an application filed by decree holder for summoning of witnesses not only declined. the prayer of the decree holder to summon the witnesses but consigned to the record, the application under Section 152 of the C.P.C., (of the PICIC) after holding that the order dated 20.12.2002, passed by learned Senior Civil Judge had attained the finality as it was not appealed against by the PICIC. This order dated 10.6.2004 was again appealed against by PICIC before the learned Additional District Judge, who dismissed the appeal on 11.10.2004, by upholding the order dated 10.6.2004, passed by the learned Senior Civil Judge. Hence, this writ petition against judgment/order dated 11.10.2004 passed by the learned Additional District Judge, Rahimyar Khan.
Learned counsel appearing on behalf of writ petitioner `submits that learned Senior Civil Judge had wrongly consigned to record the application filed by PICIC because the order/judgment dated 14.5.2003 passed by learned Additional District Judge remanding the case to learned Senior Civil Judge for framing of issues, recording of evidence and for making decision afresh was very much clear and unambiguous. Mere wrong mentioning of date in the order as 19.12.2002 instead of correct date of 20.12.2002 could not be made a ground for consigning of the application of the PICIC. As per learned counsel, the technicalities have been brought into play by ignoring the true facts, law on the subject, and declining the substantial justice to be done in the case. The PICIC had obtained a decree of huge money against the judgment debtors after litigation. While in the execution proceedings, one of the judgment debtors namely Muhammad Anwar, through fraud and fabrication, got the suit filed for recovery of dower, through his wife and got the decree passed in her favour, on the basis of a fake and forged document, without impleading the decree holder/the writ petitioner. The order dated 19.12.2002 was inadvertently written in the judgment/order of leaned Additional District Judge, although that was a date on which the arguments were heard by learned Senior Civil Judge and case was adjourned to 20.12.2002, while the judgment/order impugned was passed on 20.12.2002. So, on the basis of this wrong mention of the date as 19.12.2002, instead of 20th in the judgment/order of the learned Additional District Judge, the application of the petitioner (filed under Section 152 of C.P.C) could not be consigned to the record room. He has prayed for acceptance of the writ petition and setting aside of the order passed in appeal on 11.10.2004 as well as the order dated 10.6.2004 passed by learned Senior Civil Judge.
Learned counsel appearing on behalf of Respondent No.1 (Mst. Zahida Khanum) wife of Muhammad Anwar, has replied in the following manner:--
(i) The writ petitioner is guilty of laches, because in the instant writ petition, the prayer has been made for setting aside the judgment and decree dated 19.9.1999, orders dated 20.12.2002, and that of 11.10.2004, passed by learned Additional District Judge. As against the judgment and decree dated 19.9.1999 and order dated 20.12.2002, the instant writ petition was barred by the rule of laches, therefore, was liable to be dismissed, as it has been filed in the year 2005.
(ii) The writ petitioner had got the remedy of appeal, under Section 14 of the West Pakistan Family Courts Act 1964, or an application under Section 9 of the aforesaid Act, against the judgment and decree dated 17.9.1999, passed for the recovery of dower in favour of Mst. Zahida Khanum, but both these remedies having not been availed of by the writ petitioner, the application under Section 152 of the C.P.C., was not maintainable. Therefore, the writ petition is liable to be dismissed.
(iii) The learned Senior Civil Judge has correctly passed the order dated 10.6.2004 for consigning to record, the application under Section 152 of the CPC, filed by writ petitioner because the order dated 20.12.2002, passed by learned Senior Civil Judge dismissing the application under Section 152 CPC was never set aside by learned Additional District Judge on 14.5.2003. The order which was reversed was 19.12.2002, therefore, the impugned order dated 10.6.2004 passed by learned Senior Civil Judge and the order of appellant Court of learned Additional District Judge on 11.10.2004 have been correctly passed.
(a) It is an admitted fact that the present writ petitioner had obtained decree of huge amount against (i) Hafiz brothers (Pvt.) Ltd., (ii) Haji Muhammad Anwar (iii) Hafiz Faqir Muhammad Shehzad (iv) Mrs. Inayat Begum and (v) Mrs. Gulzar Anwar. It is also not denied that the property of 13-Factory Area, Rahimyar Khan and 32 kanals lands at Kot Kammu Shah Chowk Bahadurpur, Rahimyar Khan was mortgaged with PICIC and the decree was obtained by PICIC on 10.1.1994 from the Banking Tribunal, Karachi and Sukkur. It is also admitted fact that this decree was transferred for execution to the Court of learned Senior Civil Judge, Rahimyar Khan, So, in the presence of this decree, in favour of PICIC, any suit or proceeding, if were to be commenced, the PICIC, was to be impleaded so as the rights which were conferred through the above noted decree dated 10.1.1994 to PICIC could be defended by the PICIC. The filing of suit for recovery of dower by Mst. Zahida Khanum, who is admittedly wife of Muhammad Anwar and resident of 13-Factory Area, Rahimyar Khan, as this address has been found from the record, in her suit was bound to implead PICIC which was a necessary party, to the suit. But for the reasons best known to Mst. Zahida Khanum, Respondent No.1 PICIC was not made a party to that suit and the decree was got passed on 17.9.1999 in the presence of that earlier decree dated 10.1.1994 which was prior in time also, having been passed in favour of PICIC in the year 1994. It was so, that the application under Section 152 of the CPC was moved by PICIC. At this stage, I am conscious of the fact that the application under Section 152 of the CPC was not maintainable before the learned Judge Family Court but the question is as to whether wrong mention of section or law could be made a ground to deprive a person/party of his rights, which he had got confirmed through a decree to his score. The wrong mention of Section 152 of the C.P.C., by the learned advocate, was, in fact a mistake for which writ petitioner/applicant could not be penalized and punished, for the wrong drafting of a learned advocate. The power/jurisdiction to set aside the decree of Family Court was available with the Family Court. As argued by the learned counsel for respondents the decree could also be set aside by filing an appeal under Section 14 of the West Pakistan Family Courts Act 1964. Section 9 of the West Pakistan Family Courts Act 1964 has also conferred power upon Family Courts to set aside a decree, which has been passed ex-parte against a defendant. The petitioner was to be impleaded and treated as a defendant in the suit of dower, because the writ petitioner had got a prior decree in its favour from a competent Court of Judge Banking Tribunal. If I consider that Section 9 of the West Pakistan Family Courts Act 1964 and Section 12(2) of the C.P.C. were not maintainable due to non-applicability of CPC, even then the learned Judge Family Court in a case where a decree has been obtained through fraud, deceits, misrepresentation or on any of such grounds, which necessitated the reversal or modification of the decree, the learned Judge Family Court can competently entertain such an application under the inherent jurisdiction, which is presumed and considered to be vesting in all Courts. Tribunals or authority of even limited jurisdiction. Because it is a settled law that fraud vitiates the most solemn proceedings even and the decrees, orders or the judgments obtained in pursuit of these intentions or actions are to be reviewed, reversed, recalled or upset. This rule is based on the principle that an authority if can do act or pass an order, judgment or decree, it can undo it also but with some exceptions also, if the authority has been defrauded in the passage of that act, order or judgment.
(b) It was, therefor, that the dismissal order dated 20.12.2002 passed by learned Senior Civil Judge upon application under Section 152 of the CPC filed by PICIC, was set aside by learned Additional District Judge on 14.5.2003 and the learned Senior Civil Judge was directed to decide the case afresh. It is important to mention here that the learned Additional District Judge had considered the maintainability of filing of application under Section 152 of the C.P.C., also in his judgment. Therefore, learned Senior Civil Judge could not sit over the judgment of learned Additional District Judge and pass an order against the letter and spirit of the order of learned Additional District Judge.
(c) Mere wrong mention of date of "19.12.2002 instead of correct date of 20.12.2002" cannot be considered to have changed the character and nature of the order of learned Additional District Judge because both the parties were conscious of the fact that the order impugned and challenged before the learned Additional District Judge was the order dated 20.12.2002, which had dismissed the application of PICIC. It cannot be considered that the learned Additional District Judge was not aware of the correct order being challenged before him. In fact, the intention of the learned Additional District Judge while upsetting in appeal was the setting aside of the order dated 20.12.2002 and not the order dated 19.12.2002, which was passed for adjournment of date only and had fixed the date of the case for 20.12.2002 for decision of the application.
(d) The order dated 14.5.2003 passed by learned Additional District Judge was also understood by the learned Senior Civil Judge, to have upset the order dated 20.12.2002, when the learned Senior Civil Judge, after the post remand proceedings, had framed issues on 24.5.2003, in accordance and in compliance with the remand order of the learned Additional District Judge dated 14.5.2003 and had recorded the evidence of AW-1 also. After these orders were passed and the proceedings were taken upto the extent of partly recording of the evidence. The sudden reversal by learned Senior Civil Judge and passing of order dated 10.6.2004, consigning to record room the application filed under Section 152 of the CPC, was in fact a mala fide and fishy act of the learned Senior Civil Judge, which in this Court, I cannot approve it. The learned Senior Civil Judge had acted against the clear order of 14.5.2003, passed by learned Additional District Judge, remanding the case to him, when he had passed the order dated 10.6.2004, consigning to record the application of the PICIC. Mere wrong mention of the date while the month and the year was correctly mentioned in the judgment, and it was also correctly understood firstly by the learned Senior Civil Judge and the proceedings were correctly commenced initially, but during the continuance of the proceedings, this hasty reversal steps why were taken, I have not been able to understand, the necessity of such steps to be taken at that stage. This smacks of something fishy dealing of the case. The impugned order dated 11.10.2004 passed by learned Additional District Judge in appeal has also omitted to comprehend the real facts of the case.
(e) It is settled law that to keep flag of justice high, substantial justice has to be done. Formal defects, technical faults, clerical or arithmetical mistakes, wrong drafting of suit, appeal, review or revision or any petition, incorrect quoting, omission of section, Article of law or misquoting of a Rule or Regulation, cannot deprive a genuine claimant and real contestant. If the power of the Court is there and the Court has got the jurisdiction to undo a fraudulent order obtained, then all these irrational technicalities and formalities should not deprive a real and genuine litigant. The contents of application, and the prayer of a litigant are to determine the fate of a suit, an appeal or a petition. Court is not to act in furtherance of depriving a genuine litigant upon these technicalities. Substantial and real justice must be done, granted and showered upon the real, genuine litigant, leaving aside all these formal and minor technicalities, hindering the path of doing justice.
(f) There was no laches on the part of writ petitioner because the judgment and decree dated 17.9.1999 was challenged by writ petitioner through filing of application under Section 152 of the CPC although with wrong mention of section. The dismissal of that application was challenged through appeal by the writ petitioner in the Court of learned Additional District Judge and up till this Court. Therefore, this Court does not consider the petitioner of being guilty of laches or having failed to avail the alternate remedy of filing of appeal under Section 14 of the West Pakistan Family Courts Act 1964 before the learned District Court.
(Fouzia Fazal) Case remanded.
PLJ 2006 Lahore 1453 [Bahawalpur Bench Bahawalpur]
Present: Sh. Hakim Ali, J.
PROVINCE OF PUNJAB & 2 others--Petitioners
versus
MUHAMMAD SHOAIB & another--Respondents
Civil Revision No. 338 of 2005/BWP, heard 20.12.2005.
Colonization of Government Lands Act, 1912 (V of 1912)--
----S. 10(4)--Temporary cultivation lease--Possession of land--If plaintiffs were granted temporary cultivation lease, they must had been issued in favour an order for delivery of possession which must had been noted and entered in Rapat Roznamcha Waqiati of the Patwari--Thereafter, their possession must had been shown upon the lands in-dispute--Plaintiffs had fully been granted opportunity to bring out and prove their case on the record and to make defence with regard to their alleged allotment which they could put up before Board of Revenue and had got full opportunity to prove the genuineness of their case before Civil Court, therefore, complaint of non-hearing and in consequence the prejudice could not be raised--If the allotment of the lands in favour of the plaintiffs was to be found genuine, then they were to be considered entitled to the opportunity of hearing and notice--Persons who had obtained allotments on the basis of fraud, forgery and fabrication were not entitled to be shown with any indulgence--They could not be granted relief to perpetuate fraud and set a bad example in the books of justice--Reivsion accepted. [Pp. 1457 & 1459] A, B & C
Ch. Shafi Muhammad Tariq, AAG Advocate for Petitioners.
Raja Muhammad Sohail Iftikhar, Advocate for Respondents.
Date of hearing : 20.12.2005.
Judgment
With the concurrence of learned counsels for the parties, this civil revision is being taken up and disposed of as a notice case.
Judgment and decree dated 29.4.2004, passed by learned Additional District Judge, Bahawalnagar, dismissing the appeal and confirming the judgment and decree dated 8.10.2001, of learned Civil Judge Ist Class, Bahawalnagar, has been disputed for its validity and correctness, through this civil revision by the Province of Punjab and others/Petitioners.
Facts in brief as narrated by the learned AAG are that Muhammad Shoaib and Muhammad Kashif, respondents had filed a suit to get declaration against the Province of Punjab and 2 others, with regard to lands measuring 183 kanals 3 marlas, situated in Chak No. 182/7-R (afterward corrected as Chak No.184/7-R through order of learned Civil Judge on 27.6.2002), Tehsil Fortabbas, District Bahawalnagar, praying therein that they were owners in possession of the property in dispute and that the defendants had got no concern with the aforesaid lands. Report dated 4.6.1997, forwarded by the Commissioner (Revenue), Bahawalpur Division, Bahawalpur to member Board of Revenue (Colony) order dated 24.3.1997, passed by the District Collector, Bahawalnagar and the order dated 13.5.1999, passed by the learned Member Board of Revenue, Punjab/ Defendant No. 3, were against facts, record, and were passed without grant of opportunity of hearing, collusive, without jurisdiction and contrary to law, hence void and ineffective upon the rights of the plaintiffs. Prohibitory injunction restraining the respondents permanently to interfere into the ownership and possession of the plaintiffs was also prayed for in the aforesaid suit.
The suit was contested by filing of written statement, in which it was entered that the alleged allotment order displaying signatures of Assistant Commissioner, Fortabbas was a forged and fictitious document. No allotment order was ever issued in favour of plaintiffs. No extension was ever granted to the plaintiffs by the Assistant Commissioner, even who had got no such power to extend the alleged lease also. No lease money was ever deposited by the plaintiffs. The allotment shown, the right of proprietorship gained and all other documents allegedly obtained were the result of fraud and forger. Besides these factual denials of case of plaintiffs legal objections of locus standi to file a suit and the Civil Court having no jurisdiction under Section 36 of the Colonization of Government Lands Act 1912 were raised. Issues were framed and the parties had adduced their evidence. The suit was decreed by the learned Civil Judge while the appeal was dismissed by the learned Additional District Judge as mentioned and noted above. Hence, this civil revision.
Learned AAG appearing on behalf of the petitioners submits that the learned Courts below have wrongly decreed the suit in favour of the plaintiffs. The plaintiffs were never allotted the lands in dispute on temporary lease from Kharif, 1975 to Rabi, 1980. There was no genuine allotment order dated 30.6.1975. In fact, the plaintiffs had got all these proceedings of allotment and proprietorship rights done from Mr. Saeed-uz-Zafar, then Deputy Commissioner, in the year 1995, with all collusiveness. Giving the details, learned AAG has referred to Ex. D-4, copy of register of 5 years temporary cultivation, wherein no such allotment in favour of plaintiffs was ever made or entered for the above noted period. According to learned AAG, Ex. D-10 to Ex.D-13 are Jamabandis of the year 1976-77 to 1988-89, wherein the lands were never shown in their possession or to have been allotted to or cultivated by the plaintiffs. For the first time in the Jamabandi of the year 1992-93 (Ex.D-14) in cultivation column, names of the plaintiffs were brought into and entered. This proves the fact that the plaintiffs had got this land from the aforesaid Deputy Commissioner in the year, 1995; otherwise they were not holding any lease order/allotment order in their favour. He has also referred to Ex.D-16, Khasragirdawri, in which the land was shown as Ghair Mumkin Tibba (Uncultivable Sand Dunes) and no where the plaintiffs were shown in cultivation up till 1993, when the names were got interpolated in the khasragirdawri for the first time. He has also pointed out the statement of PW-1, Muhammad Shoaib, one of the plaintiffs, which was recorded on 19.9.2000 and aforesaid plaintiff had given his age at that time of 35 to 37 years. According to the learned AAG, if this age as stated by the plaintiff is considered to be true and correct, then in the year 1975, plaintiff was of 10 to 12 years of age. So, this fact itself proves that the petitioner was not eligible and had not obtained the allotment, and that all the documents were fictitious and forged. It has also been argued by the learned AAG that the learned Courts below have not discussed the evidence produced by the defendants/Petitioners. The plaintiffs were never residents of Chak No.182/7-R or 184/7-R but were residing in Chak No.272.HR. To prove this, he has cited Ex.D-5, voters list of 1998 wherein at Serial No.36 and 37, names of the plaintiffs had appeared. He has also challenged the jurisdiction of the Civil Court to grant the declaration under Section 36 of the Colonization of Government Lands Act, and has, thus, prayed for reversal of the judgment and decree of the learned Additional District Judge and dismissal of the suit with costs.
Learned counsel for the respondents has replied that the learned Additional District Judge has decided Issues No.3-A and 3-B jointly as these issues were material and the findings were correctly rendered upon these material issues. The learned Member Board of Revenue had decided the case of the plaintiffs without any notice or grant of opportunity to the plaintiffs. In the written statement, no plea of age of Muhammad Shoaib, plaintiff, was ever raised by defendant/petitioner. Therefore, it cannot be raised by the learned AAG at this stage. Arguing the case of plaintiffs/respondents, it has also been stated by the learned counsel that DW-1, Muhammad Shafi, Colony Clerk, had admitted that no notice under Section 24 of the Colonization of Government Lands Act, 1912 was ever issued to the plaintiffs and all the proceedings were conducted and commenced upon the inspection of the Chief Minister's Inspection Team. The Deputy Commissioner had not moved for the cancellation of the allotment/conveyance deed of the plaintiffs. Abdul Mannan DW-2, had admitted that upon the allotment order, signatures of the Assistant Commissioner were appearing on it. Tawan (illicit cultivation penalty) was imposed upon the plaintiffs, who had paid that amount. There was no order of eviction passed against the plaintiffs by any Revenue official. In Fard Taqseem Kashat, in remarks column, the names of the plaintiffs were entered. Proceedings for cancellation of Patta were commenced upon the application of a third person, who had got no locus standi to file such an application. He has referred to challan forms (receipts of payment of lease money), Ex P-2 to Ex. P-5 also. As regards to the jurisdiction of the Civil Court, he has cited 1994 CLC 317 (Karachi) (Syed Raunaq Raza versus province of Sindh through The Senior Member, Board of Revenue, Government of Sindh Hyderabad and 2 others), NLR 1984 (Revenue) 276 (Nawab Din versus Province of Punjab) and 1985 CLC 2817 (Ali Muhammad versus Allah Ditta and others). It has been stated by the learned counsel that payment of price of the land, if made, the revenue officials cannot after ward interfere into the ownership of the plaintiffs and the Civil Court has got jurisdiction to examine it. He has also referred to PLD 1978 Lahore 1146 (Bashir Ahmed, etc. versus Member, Board of Revenue, etc) and PLJ 1986 (Revenue) 11 (Faqir Muhammad versus The State). Learned counsel has also pleaded that no notice was issued by the learned Member Board of Revenue as well as the Chief Minister's Inspection Team, which was necessary. Therefore, without issuance of notice, and the proceedings were illegal. To support his contention, learned counsel has referred to 1998 CLC 1607 (Lahore) Allah Bakhksh and 3 others versus Assistant Commissioner, Ahmadpur East and 3 others) and 1986 MLD 2065 (Lahore) (Noor Ahmad versus Member, Board of Revenue).
Before proceeding with the case and discussing the legal aspect, it is necessary to examine the factual side of the case. The case of the plaintiffs/respondents is that they were allotted the disputed lands on 5 years temporary cultivation from Kharif 1975 to Rabi 1980 and thereafter were conferred rights of proprietorship, had paid the price of the lands and issued conveyance deed. So, the learned Member, Board of Revenue, Punjab had no jurisdiction to annul the deed of proprietorship. In the above noted version, the most important point for consideration is the genuineness of allotment, because this is the foundation stone of whole of the case of the plaintiffs. If the respondents were allotted lands in dispute genuinely, they were to be allowed to retain the lands in dispute and the conveyance deed issued in their favour could not be cancelled or annulled, if not, then the order of cancellation of conveyance deed (Patta Malkiyat) passed by learned Member Board of Revenue is to take precedence. From the analysis and deeper examination of the documentary as well as oral evidence, it has been found by me that respondents have not been able to prove that they were allotted lands on 5 years temporary cultivation lease scheme. Ex.D-2, the application, which is shown to have been filed in the year 1975, prima facie, shown that no order by any competent officer was passed upon it for its entertainment or for its allotment. The orders, which are shown to have been passed or issued do not display their genuineness. Not a single order shows the seal of any officer affixed to alleged signatures of any Revenue Officer. Even in those orders, there is no order of allotment ever passed by Assistant commissioner. Alleged signatures, prima facie, prove its fakery. This application can be prepared at any time, placed and attached in any file. Rao Abdul Mannan, DW-2 had clearly stated that alleged initial allotment file which plaintiffs had got prepared contained forged signatures of Assistant Commissioner and that Muhammad Shoaib and others were never allotted the disputed lands. He had also stated that signatures shown of Assistant Commissioner were totally different from the other genuine signatures of Assistant Commissioner upon the files. Even there is no specific and particular order of allotment passed in favour of the petitioners, making allotment in their favour i.e., the respondents/plaintiffs. Ex.D-4 is copy of register maintained for 5 years temporary cultivation, wherein no such allotment is shown to have been made in favour of the plaintiffs. This important register was not considered by the learned Courts below. The statement of Muhammad Shoaib while appearing as PW-1 and making statement on oath on 9.9.2000 and admitting his age of 35 to 37 years of age proves the fact that in the year 1975, he was hardly of 10 years of age. This material fact was missed by learned Courts below. Therefore, a boy of 10 years could not be expected to have filed such an application and got the temporary cultivation lease. It can not be expected from revenue officials also that they might have passed allotment order in favour of such a boy.
There is yet another documentary cogent proof which has proved ingenuineness of the alleged allotment of respondents. If the plaintiffs were granted such temporary cultivation lease, they must have been issued in their favour an order for delivery of possession under Section 10 (4) of the Colonization of Government Lands Act, 1912, which must have been noted and entered in Rapat Roznamcha Waqiati of the Patwari. Thereafter their possession must have been shown upon the lands in dispute from 1975 to 1995. The record of rights which has got presumption of correctness has totally disproved and smashed the case of the plaintiffs/respondents when it is examined minutely. From Jamabandi of the year 1972-73 to 1988-89, it has been also proved that the plaintiffs/respondents were never in possession of any piece of disputed land even. All these jamabandies, which expand from 1972-73 to 1988-89 for a period of more than 16 years do not contain any entry with regard to the allotment, possession and cultivation of the plaintiffs/respondents upon the lands in dispute. Therefore, it clearly proves that the plaintiffs were never allotted the lands in dispute; otherwise they must have occupied and cultivated it. Due to absence of occupation and cultivation, plaintiffs could not claim and be issued conveyance deed also. As the plaintiffs had started the business/deal of this gain of allotment in the year 1992, therefore, in Ex.D-13, Jamabandi of the year of 1988-89, for the first time, in Column No.10, remarks column of Jamabandi, entries of their names were got entered in that Jamabandi, which was governing record of that time. It proves, that in the year 1992 to 1995, the plaintiffs had made effort to get these lands allotted and issued proprietary rights through collusiveness of the District Collector, Mr. Saeed-uz-Zafar, who is stated to have made such allotments in bulk to different persons.
Ex. D-16, Khasragirdawri, is also another proof which display that the lands in dispute up till 1992-93 were "Ghair Mumkin Tibba" and that names of the alleged allottees were never entered up till that period. For the first time in Ex. D-16, Khasragirdawri, the names of the plaintiffs/respondents were entered in the crop of 26.10.1993.
Another important reason which disproves the case of the plaintiffs/respondents is that the respondents have failed to bring on record or prove that they had paid "Zar-e-Lagan" from 1975 to 1980 or thereafter up to 1995 regularly or continuously during these years. Not a single receipt/challan form showing the payment of such "Zare-e-Lagan", which was to be paid by each year was paid or deposited with the treasury. This material fact has also shown that there was no allotment, no delivery of possession and no cultivation. For the first time the payment of amount was made in the year 1995 (Ex. P-2 to Ex. P-5) when the plaintiffs had got the order from the above mentioned Deputy Commissioner, for grant of rights of proprietorship.
It has further been noted from Ex. D-5, the list of voters that the plaintiffs were residing in Chak No. 272/HR and not in Chak No 184/7R. They had, therefore, got ownership of these disputed lands, upon the fabricated version and documents. All the documents for allotment and proprietary rights were got prepared and issued in their favour, in the year 1995, from the Deputy Commissioner/District Collector, who was not empowered for making allotment even on the basis of notification dated 3.9.1975. The conditions of possession, cultivation were even not being fulfilled, according to the revenue record. Therefore, the order of learned Member, Board of Revenue, on 13.5.1999, was validly passed by the aforesaid learned Member, Board of Revenue, in the facts and circumstances of the case.
The grievance of the plaintiffs that they were never issued any notice by learned Member, Board of Revenue has not been proved on the record by the plaintiffs/respondents. Learned Member, Board of Revenue in Para No. 2, of the impugned order dated 13.5.1999, has clearly stated that in spite of best efforts and of Mushtari Munadi, the allottees had not appeared and were, therefore proceeded against ex parte. The plaintiffs have not brought any documentary evidence on the record to disprove this observation made in the impugned order. As the order has been passed by a highest authority of revenue hierarchy, so it is to be believed correct unless rebutted by the plaintiffs. Therefore, the complaint of providing no opportunity of hearing loses its importance.
In the present suit even, the plaintiffs have fully been granted opportunity to bring out and prove their case on the record and to make defence with regard to their alleged allotment, which they could put up before the learned Member, Board of Revenue, and have got full opportunity to prove the genuineness of their case, before the learned Civil Court, therefore, complaint of non-hearing and in consequence the prejudice cannot be raised. If the allotment of the lands in favour of the plaintiffs was to be found genuine, then, they were to be considered entitled to the opportunity of hearing and notice, and I would have declared the cancellation illegal by setting aside the order of learned MBR, but when upon merit, the case of the plaintiffs to have proved to be based upon an ingenuine, forged allotment, and the proof of fraud and fabrication of documents with regard to the alleged allotment and conferment of proprietorship is clear, in such case, it has led me to set aside the impugned concurrent judgments of the learned Courts below. Because in my view, persons who have obtained allotments on the basis of fraud, forgery and fabrication are not entitled to be shown with any indulgence. They cannot be granted relief to perpetuate fraud and set a bad example in the books of justice. In the above noted circumstances, plaintiffs do not deserve any more right of notice or opportunity of hearing, particularly after the case having been fought in the Civil Court with full opportunities to prove the genuineness of their alleged allotment. So, I accept this revision petition, set aside the concurrent judgments and decrees of both the learned Courts below, by upholding the order dated 13.5.1999 of the learned Member, Board of Revenue, and dismiss the suit of the plaintiffs in toto, with no order as to costs.
(Fouzia Fazal) Petition accepted.
PLJ 2006 Lahore 1460 (DB)
Present: Mian Hamid Farooq & Syed Hamid Ali Shah, JJ.
M/S BABRIA OIL MILLS, VEHARI--Petitioner
versus
C.I.T. ZONE, MULTAN--Respondent
C.T.R. 90 of 1993, decided on 21.2.2006.
Income Tax Ordinance, 1979 (XXXI of 1979)--
----S. 136(1)--Assessment order passed by the Income Tax Officer was on order of the original authority--Such order was not final as it could be challenged in appeal or revision as the case may be and would be final only when it gone through all the forums and the finding of the last forum should be binding and conslusive--Assessee had once declared his income on the basis of certain rates given by assessee itself so it could not be altered--Assessee was estopped by his conduct--Petition refused.
[P. 1461] A & B
Mr. Lateef Ahmad Qureshi, Advocate for Petitioner.
Mr. Muhammad Ilyas Khan, Advocate for Respondent.
Date of hearing : 21.2.2006.
Order
Petitioner, a registered firm, derives income from oil mill. The declared version of the petitioner for the assessment year 1989-90 was rejected and assessment of Rs.3,44,592/- was made against declared income of Rs. 1,13,183/-. The addition was challenged but found no favour in appeal before CIT as well as learned Income Tax Appellate Tribunal. Hence this reference.
The assessee claimed benefits of CBR Circular No. SRO 1(4) ST 14/90 dated 22.05.1991. The SRO was issued pursuant to agreement between the cotton ginners association of Pakistan and CBR where a particular formula for finalization of return was adopted for the finalization of the return filed by the members of the association. Petitioner's income on the basis of the said SRO comes to Rs. 67.794/- as against declared income at Rs.1,13,183/-
The following questions of law said to have arisen out of the order of the Tribunal, are subject-matter of this reference:-
(i) "Whether on facts and in the circumstances of the case, the Tribunal was right in law in not ordering acceptance of declared income which was in excess of the standard laid down by the CBR and was being applied in comparable cases" ?
(ii) "Whether on the facts and in the circumstances of the case the Tribunal was obliged in law to apply on the case under appeal the fair standard of expected income fixed by the CBR for comparable cases" ?
Learned counsel for the petitioner in support of above referred questions has submitted that Central Board of Revenue is the apex authority in the hierarchy of Federal Tax Administration and empowered not only to watch but control and guide all tax authorities under it in the execution of Income Tax Ordinance. Its instructions and directions are binding on all officers and persons in the execution of Ordinance, therefore, Income Tax Authorities were bound to give and extend benefits to the petitioner under SRO No.1 (4)/ ST 14/90 dated 22.05.1991. Learned counsel in support of his contention has referred to the case of "Commissioner of Income Tax versus Muslim Commercial Bank Ltd" (2002 PCTLR 795). Learned counsel then referred to the cases of "Abid Hussain versus Commissioner of Income Tax" (1995 71 TAX 142, HC Lahore) and "Home Service Syndicate versus Commissioner of Income Tax" (2003 PTD 2109) to contend that concession/benefit of a circular can be extended to assessee even during the pendency of his appeal as the assessment passed by Income Tax Officer is not final unless it has been determined finally after going through all the forums and in such case the finding of the last forum shall be binding and conclusive.
Learned counsel for the revenue, on the other hand, stood behind the impugned order and while supporting the impugned decision he has submitted that even on the basis of formula adopted by the ginning association, according to which the assessee is allowed to revise his returns on the aforesaid basis, the assessment in the instant case has already been finalized and assessee at this stage could not revise its return. The circular was thus not applicable to the petitioner.
Heard learned counsel for the parties and perused the record.
There is not cavil with the proposition that the assessment order passed by Income Tax Officer is an order of the original authority. Such order is not final as it can be challenged in appeal or revision as the case may be and would be final only when it goes through all the forums and the finding of the last forum shall be binding and conclusive. The August Supreme Court has enunciated this principle in the case of "Central Board of Revenue and others versus Chand Motors" (1992) 66 TAX 132 (SC Pak). Word pending in the instant case cannot be confined to the assessment order so as to restrict its meaning to "physically pending" or to its dictionary meaning. Pending includes the pendency of appeal or revision which is provided by the statute as a matter of right. The case of the assessee is on different premises. The addition was made in the instant case on the basis of the rates given by the assessee. The assessee has once declared his income on the basis of certain rates given by assessee itself it cannot be altered. The assessee is estopped by his conduct, therefore, the benefits of SRO 1 (4) ST 14/90 dated 22.05.1991 was not extended to the assessee rightly. We do not see any justification to answer the proposed question in favour of the assessee.
(Fouzia Fazal) Order accordingly.
PLJ 2006 Lahore 1462 (DB)
Present: Sh. Abdul Rashid and M. Bilal Khan, JJ.
LIAQUAT ALI and 2 others--Petitioners
versus
SPECIAL JUDGE, ANTI-TERRORIST COURT NO. 1, GUJRANWALA and 3 others--Respondents
W.P. No. 11807 of 2005, decided on 5.10.2005.
Anti Terrorism Act, 1997 (XXVII of 1997)--
----S. 23--Transfer of case from special Court to an ordinary Court--No police official sustained any injury--Alleged recovery of weapon and empties were not sent to FSE for matching--No serious coercion committed by the alleged accused--No public witness cited in FIR--No case of Anti-Terrorism made out--Case was transferred to ordinary Court.
[P. 1463] A & B
Mr. Khalid Masood Ch., Advocate for Petitioners.
Mr. Najeeb Faisal Ch., AAG with for Respondents.
Date of hearing : 5.10.2005.
Judgment
Sh. Abdul Rashid, J.--The petitioners through this petition seek the transfer of case FIR No. 39 dated 29.3.2005 under Sections 324/353 PPC read with Section 3/4 Explosive Substances Act, 1908, Section 13 of the Arms Ordinance, 1965 and Section 6/7 ATA 1997 registered at Police Station Phalora District Sialkot on the report of Abdur Rehman S.I./SHO from the Anti Terrorism Court Gujranwala Respondent No. 1 to an ordinary criminal Court by setting aside the impugned order dated 7.6.2005 passed by Respondent No. 1 whereby the petitioners' application seeking the said transfer had been dismissed .
Facts leading to the filing of this petition are that the petitioners while committing the murder in respect of which case FIR No. 38 dated 24.3.2005 under Section 302/34 PPC registered at same police station were running from place of occurrence and the police party headed by Abdur Rehman S.I./SHO learnt about the said incident and chased the petitioners. The additional police force was also summoned which encircled the petitioners who had concealed themselves in a wheat crop and when the police party urged the petitioners to surrender they started firing to which the police also responded and then Babar Maqbool petitioner was also injured and ultimately the petitioners had laid down their weapons and surrendered themselves to the police party and from their custody four hand grenades, two Kalashnikovs alongwith 5 live bullets, and one pump action 12 bore and 10 live cartridges were recovered. Many crime empties of different bores were also found lying nearby. Initially this case was registered under Section 324, 353 PPC read with Section 13 of the Arms Ordinance 1965 and Sections 3/4 of the Explosive Act and subsequent the offence under Section 6/7 ATA 1997 had also been added. The petitioners then submitted an application under Section 23 of Anti Terrorism Act 1997 before Respondent No. 1 and pleaded that the provision of Section 6/7 of ATA 1997 did not apply to the facts of the prosecution case and vide impugned order the petitioners' said application had been dismissed. The said order has been assailed in this petition.
It has been argued on behalf of the petitioners that even if the prosecution allegations as set out in the FIR are accepted the offence allegedly committed by the petitioners does not fall within the definition of Terrorism as stipulated in Section 6 of ATA 1997 which would require that the petitioners must commit serious coercion or intimidation or serious violence against the police force; that no prima facie evidence has been brought on the file to show the incidence of the said factors; that though the police had collected crime empties and recovered weapons of offence but these had not been sent to Forensic Science Expert to show that firing had actually been made with those weapons and although it has been stipulated in the FIR that many residents of the locality had also assembled there but not a single person from the public has been cited as a prosecution witness to support the fact that the petitioners had fired at the police party or had used serious violence against it.
It has been argued by the learned Addl. Advocate-General that the recovery of weapon of offence and crime empties at the spot shows that the petitioners had made firing on the police party and had committed serious violence against it to prevent it from discharging its lawful duties which act fall within the purview of Section 6 ATA 1997 and the petitioners' application had been rightly disallowed by the trial Court.
The entire case has been built up on the strength of police witnesses alone. Although it has been alleged in the FIR that public witnesses had also reached the occurrence but not a single person from the public has been shown in the investigation and his statement recorded to the effect that the petitioners had fired at the police party and thus were involved in committing serious violence against it to prevent it from discharging its lawful duty.
The police had collected crime empties from the place of occurrence and as well as recovered fire-arms from the petitioners but the said crime empties and the weapons of offence have not been sent to the Forensic Science Expert to prove the factum that crime empties had been actually form the fire-arms allegedly recovered from the petitioners. Therefore, prima facie there is no material on the file to suggest that the petitioners had resorted to firing at the police party. In spite of the fact that indiscriminating firing by the petitioners had been alleged against members of the police party who were many in number. No police officer sustained any injury. The factum of firing by the petitioners at the police party has not been brought on the file through any independent source, therefore, we find that the act of the petitioners does not fall within the purview of Sections 6/7 Anti Terrorism Act 1997 and as such the impugned order is set-aside and this case is transferred to the ordinary Court of competent jurisdiction for trial.
(Rafaqat Ali Sohal) Case transferred.
PLJ 2006 Lahore 1464
Present: Umar Ata Bandial, J.
MUHAMMAD AFZAL MUNAWAR etc.--Petitioners
versus
SECRETARY FINANCE GOVERNMENT OF PUNJAB, etc.--Respondents
W.P. No. 5618 of 2006, decided on 15.9.2006.
Constitution of Pakistan, 1973--
----Art. 199--Notification was issued regarding deduction of advance increments from the Petitioners' salaries--Contention--Assailed--Two short fall advance increments on account of acquiring higher education qualification have been withdrawn that have been made to petitioners have been directed to be deducted from the petitioner's, salaries--Recovery of past payments to petitioners and denial of entitlement to future payments--Validity--Held: No deduction from current salaries of the petitioners shall be made to recover past payments of impugned shortfall advance increments until recording of a decision by respondents and no future payment of the short, fall advance increment shall be made to the petitioner--Petition disposed of. [Pp. 1465 & 1466] A & B
Mr. Muhammad Iqbal Mohal, Advocate for Petitioners.
Mr. Najeeb Faisal Chaudhry, Additional Advocate General for Respondents.
Mr. Saqib Akram Gondal, Advocate for petitioner in connected writ petitions.
Mr. Muhammad Afzal Naeem Ranjha, Litigation Officer office of the E.D.O. Education M.B. Din/respondent No. 4.
Mr. Qasim Mohsin, Office of DAO Gujrat.
Date of hearing : 15.9.2006.
Order
Learned counsel for the petitioners submits that by the impugned notification dated 7.3.2006 issued by the Finance Department, two short fall advance increments due to the petitioners on account of acquiring higher educational qualification have been withdrawn and payments thereof that have already been made to the petitioners have been directed to be deducted from the petitioners' salaries. The impugned letter was issued on the basis of recommendations made by the learned Provincial Ombudsman in December 2005 in proceedings to which the petitioners were not parties and therefore they were never heard. Being apprehensive of the financial loss likely to be caused by the impugned deductions, the petitioners have approached this Court to challenge the impugned order. It is also the contention of the learned counsel that under the applicable law and rules, petitioners have a good case on the merits and the impugned order is invalid both with respect to recovery of past payments to the petitioners and the denial of entitlement to future payments thereof.
The learned counsel for the petitioners relied on the judgment of the Honourable Supreme Court in Shahid Masood Nadeem vs. Dy. C.A.A.F., Lahore Cantt. and 3 others (2003 PLC (CS) 1262) and Government of Sindh vs. Abdul Sattar Sheikh and others (2003 PLC (CS) 589) to submit that the irregular payment made by a competent authority for the services performed by an employee of the Government cannot be deducted from his subsequent salaries under the principle of locus poenitentiae.
Learned Additional Advocate General has informed that before considering the foregoing principle enunciated by the Hon'ble Supreme Court, it may be noted in the present case that the grievance raised by the petitioners has never been represented before the concerned respondent authorities. The statement is not controverted by the learned counsel for the petitioners. He assures that insofar as the impugned letter dated 7.3.2006 issued by the Finance Department is alleged to have violated any legal rights of the petitioners, the same may be disputed by the petitioners before Respondent No. 1 or a competent Finance Department authority designated by him who shall grant the petitioners a careful hearing in the matter and decide their objections to the impugned action strictly in accordance with law. Faced with such assurance, the learned counsel for the petitioners have expressed their willingness to approach the Respondent No. 1 in terms laid out by the learned Additional Advocate General.
In view of the foregoing position, the petitioners are directed to file their representations before Respondent No. 1 who shall hear the petitioners and decide their objections strictly in accordance with law within three months of the receipt of certified copy of this order. Until such time as a decision is made by the Respondent No. 1 in deference to the rule laid down in the afore noted precedents of the Hon'ourable Supreme Court, no deduction from current salaries of the petitioners shall be made to recover past payments of the disputed shortfall advance increments. Likewise until the recording of a decision by Respondent No. 1 no future payment of the short fall advance increment shall be made to the petitioners. Disposed of accusingly.
(Rafaqat Ali Sohal) Petition disposed of.
PLJ 2006 Lahore 1466
Present: Syed Hamid Ali Shah, J.
FLEX-O-SIGN through its MANAGING DIRECTOR, LAHORE--Petitioner
versus
LIAQAT ALI CHAUDHRY and another --Respondents
Civil Revision No. 1401 of 2004, decided on 28.4.2005.
(i) Punjab Development of Cities Act, 1976--
----S. 44--Revocation of licence--Respondent was involved in the business of advertisement under a contract on yearly rent basis--Hoarding was removed being expanded road and commitment was made to re-allot after completion of road--Re-allotment was declined--Assailled--Held: Respondent was alloted site and the licence to use the disputed premises cannot be revoked under a due notice for revocation of licence was issued to the relevant party. [P. 1473] A
(ii) Limitation Act, 1908 (IX of 1908)--
----S. 23--Civil Procedure Code (V of 1908), S. 114--Fresh period of limitation--Respondent filed suit for permanent injunction and defendant/petitioner took the plea that the suit is time barred--Held: Fresh period of limitation starts from the refusal and the suit of respondent was within period of Limitation. [P. 1473] B
(iii) Civil Procedure Code, 1908 (V of 1908)--
----O.VIII, R. 1 & S. 115--No fresh ground--Held: Grounds which the petitioner has not agitated before the lower Court cannot be urged at the revisional stage. [P. 1473] C
Ch. Imdad Ali Khan, Advocate for Petitioner.
Syed Kazim Hussain Bokhari, Advocate for Respondent No. 1.
Syed Mumtaz Hussain Bokhari, Advocate for Respondent No. 2.
Date of hearing : 28.4.2005.
Judgment
This single order will dispose of Civil Revision No.1401/2004 titled "Flex-o-Sin versus Liaqat Ali Chaudhry and another" and Civil Revision No. 1428/2004 titled "Parks and Horticulture Authority versus Liaqat Ali Chaudhry and two others" as both these petitions arise out of the same judgment.
Facts of the case in a narrow compass are that Respondent No. 1 is involved in the business of advertisement under the name and style of Evershine Neon Signs. Respondent No. 1 was granted permission to install a hoarding, in front of Main Boulevard Gulberg, adjoining the wall of Gymkhana Club, on yearly rent basis. Respondent No. 2, had been extending the period from 1993 till 1998. Respondent No.2 asked Respondent No. 1 to remove the hoarding as the road was being expanded and a commitment was made to re-allot the same site to Respondent No. 1, on completion of road work. Respondent No. 1 approached Respondent No. 2, on completion of the road expansion work, for re-allotment of site. Respondent No. 2 declined to accede to the request of Respondent No. 1, Respondent No. 1, then approached various authorities, for redressal of its grievance, including Chief Minister and the Prime Minister. All efforts of Respondent No. 1 went futile, which grave to the cause to initiate the suit against Respondent No. 2.
It was asserted in the plaint that Respondent No. 2 resiled from its commitment to reallot the disputed site, after completion of road work due to mala fide and the refusal is discriminatory; the plaintiff has a right which is denied dishonestly and a decree for declaration was prayed with permanent injunction. Respondent No.2 contested the suit, filed written statement, controverted therein the assertions of the plaint. Various preliminary objections were raised as well. Respondent No. 2 admitted the allotment of site to Respondent No. 1 and its removal due to expansion of work. Refusal to re-allot the site was justified on the plea that as per new plan, land along the jail road was reserved for land scaping with flower beds and for plantation of trees. Policy decision was referred where sign board in the green belt was disallowed. Learned trial Court framed issues and after recording the evidence of the parties, decreed the suit in favour of Respondent No. 1 and against Respondent No 2 vide judgment and decree dated 08-03-2004. The decree dated 08-03-2004 was challenged in appeal by Respondent No. 2 as well as M/s Flexo Signs/present petitioner. Learned Appellate Court dismissed both the appeals on 10.05.2004, hence this petition against concurrent findings of the Courts below.
Learned counsel for the petitioner has contended that the High Court has jurisdiction to set aside, in revisional jurisdiction, the concurrent judgments of two Courts below. Court can interfere when the case of misreading, non-reading of evidence or wrong assumption of law is made out. Cases reported as "Imam Din and 4 others versus Bashir Ahmed and 10 others" (PLD 2005 SC 418), "Muhammad Afzal through his legal heirs and others versus Riaz Mehmood ADJ and 8 others" (PLD 2004 Lahore 115) and "Muhammad Akbar versus Muhammad Malik and another" (PLD 2005 Lahore 1), were referred in this respect. Learned counsel relied upon the cases of "H.M. Saya & Co., Karachi versus Wazir Ali Industries Ltd, Karachi and another" (PLD 1969 SC 65), "Allah Ditta versus Ahmed Ali Shah and others" (2003 SCMR 1202) and "Ch. Jalal Din versus Mst. Asghar Begum and others" (1984 SCMR 586) to contend that appeal by a stranger is competent if such appellant is adversely effected by the decree. He then contended that Respondent No. 1 has based his claim on verbal commitment of Respondent No.2 An oral agreement requires strict proof through clearest and most satisfactory evidence with utmost precision as to the circumstance of time and place etc. He supported his contention by citing cases of "Veknat Rao and another versus Nammdeo and others" (AIR 1931 PC 285), "Amina Rehman versus Mirza Karamat Hussain and others" (1993 MLD 1898) and "Ali Muhammad Khan versus Riazuddin Khera" (PLD 1981 Karachi 170) Learned counsel then proceeded to argue that permission granted by respondent No.2 to Respondent No.1, to put up hoardings/billboards on green belt, as per regulation framed under Section 44 of Punjab Development of Cites Act, 1976, is neither easement under Section 4 of the Easement Act 1882 nor a lease under Section 105 of the Transfer of Property Act 1882. Such permission is mere a license within the meaning of Section 22 of the Easement Act 1882. A license is revocable at the will of lincesor, even if it is granted for consideration. The only remedy against the breach of condition of license is the suit for damages. Suit for injunction against such breach is not competent. Learned counsel supported this contention by relying upon the cases of "Muhammad Akbar Khan versus Province of West Pakistan" (PLD 1961 SC 17), "M.A. Naseer versus Chairman, Pakistan Eastern Railways and others" (PLD 1965 SC 83), "Abdur Rashid Malik versus Pakistan Railways and 3 others" (1992 CLC 2209), "Mst Nazir Begum and others versus Province of West Pakistan and others" (PLD 1966 (W.P.) Lahore 195), "Muhammad Hashim versus Zulifqar Ali Khan and others" (PLD 1963 (W.P.) Lahore 418) and "M/s Zaidi's Enterprises etc versus Civil Aviation Authority etc" (PLD 1999 Karachi 181). Learned counsel submitted further that expansion of road was completed in the year 1999 and the suit was filed on 15.07.2003, while limitation for filing such suit as per Article 115 of the Limitation Act 1908 is three years. The suit was barred by limitation but the Courts have ignored the same. Learned counsel contended that under Section 3 of the Limitation Act, the Court is bound to notice question of limitation, irrespective of the fact whether the parties have raised such question or not. Cases of "Hakim Muhammad Buta and another versus Habib Ahmad and others" (PLD 1985 SC 153) and "Government of Pakistan versus Muhammad Bashir" (PLD 2005 Lahore 177) were referred in this respect. Learned counsel submitted that law requires that agreement with the government must be in writing and oral agreement has no value. A directive by Prime Minister or a Chief Minister does not create any vested right. He has lastly contended that case of the Respondent No. 1 does not fall within the ambit of Section 42 of the Specific Relief Act and leaned Courts below have assumed jurisdiction erroneously.
Learned counsel for Respondent No. 1 has fully supported the impugned judgments. He has submitted that Respondent No. 1 was allotted the premises prior to the creation/existence of Parks and Horticulture Authority. Respondent No. 2 in its written statement has no denied the assertions of the plaint regarding its verbal promise to re-allot the disputed site after the completion of the road widening work. The inability to re-allot the site was attributed to a ban imposed by the Government for installation of sign board, in the green belt. He then submitted that appeal by stranger is only competent when there is permission by Court. Neither any request was made nor a leave was granted to appeal as a stranger. The appeal was incompetently filed and was liable to be dismissed on this score alone. Learned counsel in support of his contention referred to the cases of "H.M. Saya & Co., Karachi versus Wazir Ali Industries Ltd, Karachi and another" (PLD 1969 SC 65), "Malik Muhammad Iqbal v. Ghulam Muhammad" (1989 Law Notes 1298) and "Syed Musarrat Hussain Zaidi and another versus Syed Salim Jawaid Zaidi and another" (PLD 1993 Karachi 548). He added that the disputed site was allotted to petitioner during the currency of injunctive order. The site was not alloted to the petitioner at the time of institution of suit, therefore, the petitioner was thus neither necessary nor a proper party. While referring to the case of "Nazir Ahmad versus Muhammad Rafiq" (1993 CLC 257) and "Province of Punjab through Chief Secretary and 5 others versus Malik Ibrahim and sons and another" (2000 SCMR 1172), it was contended that point not raised before trial Court, could not be agitated at revisional stage. Learned counsel referred to the cases of "Makramullah versus Province of East Pakistan" (PLD 1969 Dacca 417), "The District Magistrate, Lahore and another versus Fariq Sayyed Fayyazuddin and another" (PLD 1965 SC 371) and "Muhammad Siddiq, etc versus Market Committee, Tandlianwala, etc" (NLR 1981 UC 299) to submit that discretion to revoke the license cannot be exercised arbitrarily. It was submitted that not a single ground of revision petition, meets the requirement of Section 115 CPC. He has submitted that scope of revision is limited and according to the principle of law laid down by the Hon'ble Supreme Court of Pakistan in the case of "Haji Noor Muhammad versus Abdul Ghani and 2 others" (2000 SCMR 329), instant revision petition is not competent. He found further support in this contention from the cases of "Noor Rehman and others versus Muhammad Yousaf" (2000 CLC 1138) and "Municipal Committee Murree through Administrator versus Homi Jamshed Kaikobad" (2001 CLC 935). He emphasized that the suit is competent in terms of Section 56 (f) of the Specific Relief Act, while placing reliance upon the cases of "M/s. Zor Engineering Ltd versus State Bank of Pakistan" (PLD 1980 Lahore 534) and "Blackwood Hodge (Pakistan) Ltd versus Hakimsons (Impex) Ltd" (1983 CLC 1251). Learned counsel submitted that the remedy of suit for damages for illegal revocation of the licence is no bar to a suit for permanent injunction and in support of this contention referred to the case of `Abbasia Cooperative Bank through Manager and another versus Hakeem Hafiz Muhammad Ghaus and 5 others" (PLD 1997 SC 3).
Learned counsel for Respondent No. 2 adopted the line of arguments of the petitioner.
Heard learned counsel for the parties and perused the record.
Mayor Lahore through Secretary Lahore Municipal Corporation, allotted the premises for installation of neon sign/Tri-vision vide letter dated 19.10.1993 (Ex.P-2). Respondent No. 1 has throughout been paying the rent. Respondent No.2/Parks and Horticulture Authority came into existence in September, 1998, resultantly the management and control of disputed site went to Respondent No. 2, who by virtue of Notification No. SO (D-1)-3-4/98 dated 16.12.1998 were given exclusive authority and right to lease out advertisements in notified area. Petitioner's signboard, remained installed at T-Junction of Jail Road in front of Gulberg Main Boulevard close to Gymkhana Club (shown properly in the site-plan Exh. P-4). Respondent No. 1 kept paying the rent to Respondent No. 2. Respondent No.2 asked the Respondent No. 1 to remove the signboard, during the course of widening of Jail Road, with verbal commitment to re-allot it to the Respondent No.1 after the completion of road construction/widening process. Contents of para 3 of the written statement are admitted according to provisions of Order VIII Rule 5 CPC. Respondent No. 2 in its written statement has not denied the assertions of the plaint regarding its verbal promise to re-allot the disputed site after the completion of the road widening work. The inability to re-allot the site was attributed to a ban imposed by the Government for installation of sign board, in the green belt. The right of Respondent No. 1 for the re-allotment of the sight, was admitted by Respondent No.2 and that is why, other suitable location was offered which the Respondent No.1 declined to accept. Respondent No.2 ignoring it's policy and by violating the ban, allotted the petitioner disputed site on 16.2.2004, during the pendency of the suit. The site was allotted exactly on the day when the injunctive order in favour of Respondent No. 1 was vacated. The undue haste speaks about the keen involvement of Respondent No. 2 to allot the disputed site to the petitioner.
Learned appellate Court has rightly held that impugned action of the Respondent No.2 is mala fide while holding so the Court observed: that the signboard of Respondent No. 2 was removed which was installed consequent upon the order of the Court off acceptance of application of Respondent No.1; that the fee/rent for the relevant period was deposited by the Respondent No. 1; that reinstallation of signboard was declined on the ground of ban by Government and for the reason that disputed site was left open for green belt; and at the same time it was allotted to the Petitioner despite the ban etc. Respondent No.2 being authority of Government has showed undue haste in allotting the site to petitioner without awaiting the fate of suit.
The record further reveals that Respondent No. 2 has justified the allotment of the site to the petitioner on the ground that a summary to Chief Minister qua the allotment of disputed site either to petitioner or to Respondent No. 1 was sent and the Chief Minister approved the allotment of site to the petitioner instead of Respondent No. 1. Chief Minister being Chairman of PHA is competent to allot a site despite a ban. Exh. P-8, a directive of the Chief Minister dated 24.11.2003, is available on record, wherein the Chief Minister desired for the favourable consideration of the request of the Respondent No. 1 for re-allotment of the site. Respondent No. 2 ignored it, while in compliance of this directive the Respondent No.2 could allot the site to Respondent No.1 despite a ban. Relevant part of Ex.D-4 where Respondent No.2 has conveyed to the Chief Minister is reproduced as under:
"(i) -----
(ii) The proposed location is purely green area, which is not allowed for publicity hoarding.
(iii) However, PHA can entertain the request on other suitable locations."
The site was not re-allotted to the Respondent No.1 as the site was a green belt and at the same time the same was allotted to the petitioner by sending defective summary to the Chief Minister through misrepresentation. No one can be allowed to reprobate that which he has himself approbated. Respondent No.1 has totally neglected to consider that the ban was imposed on the basis of representation dated 24.04.2003 (Exh.D-3) on new hoardings. The case of Respondent No. 1 was not of a new site but of the re-allotment of site already allotted to him. Government functionaries are required to perform their functions fairly and transparently in a clean manner.
The verbal commitment of Respondent No.2 for re-allotment of the site, after the completion of the widening of the road, from perusal of written statement is admitted fact. It is also admitted that the period for which the site was allotted had not expired. DW-1 in his statement has admitted that 20-30 billboards were installed within the notified area of Respondent No.2 and the period in each case has been renewed until December 24, 2004. The refusal to Respondent No.1 for re-allotment of site was due to ban and the policy of Respondent No.2 offered the Respondent No.1 an alternate site acknowledging the latter's right of allotment of the site. Now new plea of Respondent No 2 can be entertained or considered except the one set up by it in its written statement.
State functionaries in the matter of contractual obligation are not placed at a higher pedestal than the citizens/subject. Superior Courts have taken serious view of unilateral termination of agreement or the unequal treatment by state functionaries. It was held in the case of "M/s Presson Manufacturing Limited versus Secretary, Ministry of Petroleum and Natural Resources and 2 others" (1995 MLD 15) that an arbitrary, capricious and unfair exercise of discretion by state functionaries renders the exercise of the judicial review. Their Lordships of Hon'ble Supreme Court in the case of "Shaukat Ali and others versus Government of Pakistan and others" (PLD 1997 SC 342) have held that if the action of the state functionary concerned is prompted with malice/mala fides, Court may interfere with the same. In the case "Abdul Haq and others versus Province of Sindh" (PLD 2000 Karachi 224) it was declared that the higher the authority the more the responsibility for obedience and observance of law. Any failure or disobedience in due observance and performance of such inviolable obligation may attract judicial superintendence, enforcement and correction. It was declared in the case of "Ch. Mukhtar Ahmad versus Government of Punjab and others" (2000 CLC 1073) that the authority having failed to consider the case of Respondent No.1 at par with other similar placed ones, action of the authority was violative of Art.25 of the Constitution, 1973. It was also observed that every public functionary was bound to act in accordance with law. In a recent case of "Javed Iqbal versus PASSCO and another" (2004 CLC 478) it was observed by this Court.
"It can hardly be disputed by any one that for a society which claims to be organized, civilized and law abiding, it is imperative to stand by its commitments, undertakings and to be honest and fair in its dealings. It is moreso for any functionary believing in rule of law neither to discriminate between the citizens, nor to exercise discretion at its pleasure. It is well settled rule that an authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. The principle of reasonableness and rationality which is an essential element of equality or non-arbitrariness is projected by Article 25 of our Constitution and it must characterize every State action, whether it be under authority of law or in exercise of executive power. Article 25 speaks of equality before law and equal protection of law. Public Corporation as an instrumentality of the Government, in the sense brought out above, has to observe equality and cannot exclude a person by discrimination."
The above survey of law reveals that the illegal and mala fide act of the State functionaries cannot be left unattended. Civil Courts being the Courts of ultimate jurisdiction have the jurisdiction to entertain a suit against the mala fide act of the Federal Government, Provincial Government or Local Authorities. Hon'ble Supreme Court of Pakistan in the case of "Hazara (Hill Tract) Improvement Trust through Chairman and others Versus Mst Qaisra Elahi and others" (2005 SCMR 678) has enunciated the law that a mala fide of authority which is apparent on the face of the record is not liable to be ignored and the Court seized of the matter is under a legal obligation to take notice of mala fides. Argument of learned counsel for the petitioner and that of Respondent No.2 that suit of Respondent No.1 was not maintainable, has no force.
Learned counsel for the petitioner has assailed the impugned decree, as a stranger and was required to seek permission/leave in this respect, which was neither sought nor accorded. The site was allotted to the petitioner ignoring prior rights of Respondent No.1. It was allotted during currency of ban, in the area which as per police of Respondent No.2 is reserved for green belt and during the pendency of the suit. It reflects that undue favour has been extended to Respondent No.2, ignoring the all norms and relevant rules. petitioner is seeking equity without meeting the fair standard that "He who seeks equity must do the equity". The petitioner has laid much stress on the status of Respondent No.1, who according to him is neither lessee under Section 105 of the Transfer of Property Act, nor enjoying under Section 4 of the Easement Act, 1872. The status of Respondent No.1, according to the petitioner, is at the most that one of the licensee which is revocable at any time. I am afraid that this argument is of any help to the petitioner. Respondent No.1 was allotted site and the licence to use the disputed premises cannot be revoked unless a due notice for revocation of licence is given. August Supreme Court in the case of "New Jubilee Insurance Corporation versus National Bank of Pakistan Karachi" (PLD 1999 SC 1126) has laid down the law that when an act or order which inflicts civil consequences on a person, in respect of his reputation or property which is harmful to his interest, he is entitled to be heard before such an action or order is taken or passed. petitioner has raised the question of limitation at this belated stage. It is evident from the record that Respondent No.2 considered the request of the petitioner, in view of the directive of the Chief Minister and the Prime Minister. The refusal for re-allotment of site for installation of publicity sign was lastly conveyed by Respondent No.2 to Deputy Secretary (V) C.M. Secretariat Punjab Lahore through letter dated 26.05.2003 (Ex.D-4). A fresh period of limitation starts from the refusal dated 26.05.2003 and the suit of Respondent No. 1 is well within the period of limitation. petitioner wanted to set up a new case, other than the one set up by Respondent No.2 in its written statement. The grounds, which the petitioner has not agitated before the lower appellate Court, cannot be urged at the revisional stage.
The act of Respondent No.2 is mala fide and illegal. It lacks the element of transparency and fairness. The disputed site has been denied to the Respondent No. 1 on the ground that location is purely green area and there is a ban but surprisingly the same location has been allotted to the petitioner. While allotting the disputed site to the petitioner the rights and entitlement of Respondent No.1 were ignored. The petitioner as well as Respondent No.1 have failed to point out any instance of misreading or non-reading of the evidence. The case of the wrong assumption of law has also not been made out. I am, therefore, not inclined to interfere in the concurrent findings of the two Courts below, in the revisional jurisdiction.
For the foregoing, there is no force in this revision and the same is dismissed accordingly.
(Malik Sharif Ahmed) Revision dismissed.
PLJ 2006 Lahore 1474
Present: Sayed Zahid Hussain, J. (Election Tribunal)
GHULAM MUHAMMAD LALI--Petitioner
versus
IMTIAZ AHMED LALI--Respondent
Election Petition No. 107 of 2002, decided on 23.6.2006.
(i) Representation of People Act, 1976 (LXXXV of 1976)--
----S. 99(1-A)(i)--Chief Executive Order (35 of 2002), Art. 8-D(2)(i)--Punjab Local Government Ordinance, 2001, S. 152(i)--Elections for Provincial Assembly--Respondent raised objection that the petitioner had been dismissed from service (Sub-Inspector in Punjab Police)--Objection upheld by Returning Officer--Appeal was accepted by Election Tribunal--Petitioner filed present election petition for a declaration that election of respondent was void and as a consequence petitioner be declared elected unopposed:
(a) Judgment did not in any way operate as resjudicata nor it bars the petitioner from filing election petition.
(b) The amendment brought about in Art. 8-D (2)(i) through Chief Executive Order No. 35 of 2002 is not without purpose--Dismissal/removal of compulsory retirement from service on the ground of misconduct is also a disqualification which may or may not involve the element of moral turpitude.
(c) Object of amendment was to bring such a disqualification in conformity with provisions of Art. 63 of the Constitution of Pakistan 1973 and S. 99 of the Representation of People Act, 1976 to ward off any possible conflict or inconsistency. So as to extend the scope of disqualification to keep the person dismissed, removed or compulsorily retired from service on the ground of misconduct, away from the elected forum, through there may not be element of moral turpitude involved.
(e) willful absence amounts to misconduct on the basis of major penalty of dismissal from service can be imposed.
(f) The principle is, if the disqualification was not known to voters--Then the votes cast in favour of such a candidate could not be treated as thrown away votes--Voters have a right to ask for fresh election--Election of respondent declared as void--Fresh election to be held--Petition accepted. [Pp. 1480, 1484, 1485, 1486, 1487 & 1488] A, B, C, D, E & F
KLR 1986 Civil cases 238; 1986 SCMR 1736; 1996 CLC 1722; PLD 2003 SC 340, ref. PLD 1969 S.C. 267, PLD 1975 SC 397 rel. PLJ 2005 SC 226; PLJ 2005 SC 1176, ref.
M/s. Muhammad Ahmed Qayyum and Mr. Zafar Iqbal Chohan, Advocates for Petitioner.
M/s. Talib H. Rizvi & Mr. Tafazal H. Rizvi, Advocates for Respondent.
Dates of hearing : 19, 23, 24, 29, 30, 31.5.2006.
Judgment
On 10.10.2002 as per schedule, elections were to be held in the Province of Punjab as well for hundreds of seats for the Provincial Assembly. PP-80, Jhang-VIII is one of the constituency comprising certain areas of District Jhang. Ghulam Muhammad Lali, the petitioner and Imtiaz Ahmed Lali the respondent were candidates against each other for the membership in the Provincial Assembly. They filed their respective nomination papers. The candidature of the respondent was objected to by the petitioner on the ground that since he had been dismissed from service (Sub-Inspector in the Punjab Police), he was disqualified from being elected as such. The objection was upheld by the Returning Officer vide order dated 31.8.2002, which prompted the respondent to assail the said order through an election appeal (E.P No.162-R/2002). The said appeal was accepted by a learned Election Tribunal comprising two learned Judge of the Lahore High Court, Lahore on 12.9.2002/16.9.2002. That order was assailed by the petitioner through W.P.No.16830/02, which was dismissed by a learned Full Bench of the High Court on 18.9.2002 alongwith other petitions primarily for the reason that the proper remedy would be the election petition under Article 225 of the Constitution of Islamic Republic of Pakistan, 1973. C.P. No. 3802-L/02 was then filed by the petitioner before the Hon'ble Supreme Court of Pakistan. Since in the meanwhile the election had been held and the respondent as per the poll result was declared elected, the present election petition was filed by the petitioner to declare his election as void and that as a consequence he be declared as unopposed member of Assembly. The election petition was entrusted to a learned Election Tribunal comprising Pervaiz Ahmad J., on whose retirement it was entrusted to this Tribunal.
"1. Does the election petition merit rejection for non-compliance with the statutory provisions of Representation of Peoples Act, 1976? OPR.
What is the effect of earlier judgment rendered by the Division Bench of this Court in W.P No. 16830/02?
Was Respondent No.1 disqualified from being elected as member ? OPP
Is the petitioner entitled to be declared as a returned candidate in case Issue No.3 is decided in affirmative?
Relief.
It may be mentioned that C.P.No. 3802-L/02, which was also then pending before the Hon'able Supreme Court of Pakistan, was withdrawn by the petitioner on 12.5.2004 due to the pendency of this election petition.
Since the onus of proving the vital issues lay upon the petitioner, he appeared himself as PW-1 and produced documentary evidence such as Ex.P-1 (the copy of objection petition filed before the Returning Officer), EX.P-2 (copy of order dated 28.10.1990 passed by Superintendent of Police, Faisalabad whereby the respondent was dismissed from service), Ex.P-3 (the copy of order of the Returning Officer dated 31.8.2002 whereby the objection to the candidature of the respondent was upheld), Ex.P-4 (the copy of order passed by the learned Election Tribunal on 12.9.2002/16.9.2002 in E.A. No.162-R/2002), Ex.P-5 (copy of order passed in W.P.No.16830/02), Ex.P-6 (copy of statement of count issued by the Returning Officer on 11.10.2002 (erroneously mentioned as notification issued by the Election Commission in the statement of the petitioner), Ex.P-7 (copy of application dated 12.10.2002 before the Returning Officer for recount). The respondent appeared himself as RW-1 and chose not to produce any other evidence.
Both sides are represented through their learned counsel, who have been heard extensively.
Since admissibility of some of the documents was objected to by the learned counsel for the respondent, I propose to deal with that aspect before embarking upon the decision on the issues. The learned counsel for the respondent has particularly objected to the admissibility in evidence of copy of order dated 28.10.1990 (Ex.P-2). According to him since the said document was not attested by any departmental official (Police Department) nor was confronted to the respondent it could not be received in evidence. Articles 85 and 87 of the Qanun-e-Shahadat Order, 1984 have been cited by him. He has also made reference to Khan Muhammad Yusuf Khan Khattak v. S.M Ayub and 2 others (PLD 1973 S.C. 160), Muhammad Usman v. Lal Muhammad and 12 others (PLD 1975 Karachi 352), Muhammad Khaliq V. Abdullah Khan and 4 others (1987 CLC 1366), Muhammad Khan v. Faqir Hussain Khan And 3 others (1989 SCMR 1164), Mehboob Ali and another v. Mst. Sharifan Bibi and 21 others (1991 CLC 1201), Muhammad Aslam and another v. Senior Civil Judge, Gujrat (Mian Nisar Hussain) and 2 others (2000 MLD 1581) and Gujranwala Development Authority through Director General, G.D.A. Plaza, Model Town, Gujranwala v. Muhammad Hussain (2002 YLR 1884). Apart from Ex.P-2 the other documents which were admitted in evidence subject to the objection are; Ex.P-1 which is copy of objection petition by the petitioner filed before the Returning Officer. It is an attested copy thereof. Ex.P-3 is the attested copy of the order passed by the Returning Officer on 31.8.2002. Ex.P-4 is the attested copy of order dated 12.9.2002/16.9.2002 passed by the learned Election Tribunal whereas Ex.P-5 is the attested copy of the order of the High Court dated 18.9.2002 passed in W.P.No 16830/02 and in similar other petitions. In view of Article 85 (1) (ii) and (iii) and Article 85(3) of Qanun-e-Shahadat Order, 1984, the same are to be treated as public documents. These are certified copes issued by the concerned officials and agencies, production whereof in evidence cannot be objected to in view of Article 87 and Article 88 of the Qanun-e-Shahadat Order, 1984. Ex.P-2 is a copy of order dated 28.10.1990 passed by the Superintendent of Police, Faisalabad (whereby the respondent was dismissed from service being habitual absentee). It was attested by the District Police Officer, Faisalabad which was produced before the Returning Officer on the basis of which the nomination papers of the respondent were rejected by the Returning Officer on 31.8.2002. It gave rise to the election appeal filed by the respondent (E.A. No. 162-R/02) and order dated 12.9.2002/16.9.2002 was passed by the learned Election Tribunal accepting his nomination papers. It formed part of the appeal file. In these proceedings attested copy issued by the Returning Officer, PP-80 Jhang-VIII has been produced. The perusal of the order of the learned Tribunal passed in E.A. No.162-R/02, shows that the plea of the respondent then was that since there was no involvement of moral turpitude in his dismissal, therefore, he was not disqualified, which was upheld. But while deposing as RW.1, he indeed admitted the factum of his dismissal from service. Suffice it to observe that a fact admitted need no further proof. In such view of the matter also it does not lie in the mouth of the respondent to object to the admissibility in evidence of order dated 28.10.1990. Thus the precedents cited by the learned counsel are not attracted to the above mentioned peculiar circumstances of this case. The objection is not sustainable and is overruled. The documents were properly admitted in evidence and no exception can be taken thereto.
After having considered the matter in the light of the pleading of the parties, the evidence led by them and the law applicable findings qua respective issues are as follows:
ISSUE No. 1. "Does the election petition merit rejection for non-compliance with the statutory provisions of Representation of Peoples Act, 1976 ? OPR".
This issue was proposed in view of the objection taken in the reply filed by the respondent "That the Election Petition is not competent because it has not been filed properly and legally, as required by law, therefore it deserves summary dismissal". As is evident from the tenor of the objection the same is unspecific, shorn of necessary particulars and is rather loosely drafted. Be that as it may the issue was required to be proved and established by the respondent as to how the election petition was not competent. Neither in his statement as RW-1 anything was said by him nor it has been shown from the record that the same was not legally competent. The election petition has been verified on oath, it is attested by the Oath Commissioner. Even the affidavit accompanying the same is duly attested by the Oath Commissioner and the documents mentioned above also find due verification and certification as being true and correct. As the issue has not been proved the petition is found to be legally competent, having fulfilled necessary requirements of law and does not merit rejection. It is decided against the respondent.
It has been mentioned above that the candidature of the respondent was objected to by the petitioner at the time of scrutiny of the nomination papers. The precise objection of the petitioner was that since the respondent had been dismissed from service (Sub-Inspector, Police) on the ground of habitual absence from duty, he was disqualified from contesting the election as such a dismissal amounted to misconduct. Copy of order dated 28.10.1990 (Ex.P-2) was produced before the Returning Officer in support of such an objection. The objection prevailed and the Returning Officer ordered the rejection of his nomination papers on 31.8.2002. On his election appeal (E.A.No162-R/02), the learned Election Tribunal Allowed him to contest the election by accepting his nomination papers. The view taken was that "Under Article 8-D(2) (i) of the Conduct of General Election Order, 2002 a person who has been dismissed from service on the ground of misconduct involving moral turpitude is only debarred from taking part in the forthcoming election and by virtue of Article 3 of the ibid Order, the provision of this order shall have effect notwithstanding anything contained in the Constitution or in any other law for the time being in force relating to the forthcoming elections of Senate, National Assembly and Provincial Assembly". It was observed by the learned Tribunal that "the essential element to be proved is that his dismissal was on the ground of misconduct involving moral turpitude" and that since "the precise allegation against the appellant was that he remained absent from the duty and there is no allegation of moral turpitude of any kind against him" he was not disqualified to contest the election. The tendering of resignation by him was also noted by the learned Tribunal. In the order of the learned Full Bench passed in writ petition (W.P.No.16830/02) filed by the petitioner, the learned Bench while disposing of number of other petitions reiterated its earlier view that such grounds could be taken before the Election Tribunal through election petition and the grievance "can be redressed by the Election Tribunal by declaring the election as a whole to be void". The matter did not rest at that as the petitioner had agitated it further before the Hon'able Supreme Court of Pakistan. It appears that since the election process had in the meanwhile been completed the present election petition was filed and petition from the Hon'able Supreme Court of Pakistan was withdrawn pursuant to Civil Misc. Application No.942/04 by means of order dated 12.5.2004, which reads as under:
"Learned counsel for the petitioner states that since the election petition of the petitioner is pending before the election Tribunal, therefore, he withdraws this petition. Dismissed as withdrawn".
Though in view of dismissal of the writ petition that the remedy of election petition was open to the petitioner as contemplated by Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 and withdrawal of the petition from the Hon'ble SUpreme Court of Pakistan due to the pendency of the present election petition no bar could be pleaded yet the learned counsel for the petitioner has cited Ch. Altaf Hussain V. Raja Muhammad Afzal (K.L.R. 1986 Civil Cases 238), Raja Muhammad Afzal V. Ch. Muhammad Altaf Hussain and others (1986 SCMR 1736), Muhammad Asim Kurd V. Assistant Commissioner-Cum-Returning Officer, Karachi-I and another (1996 CLC 1772) and judgment of a learned Election Tribunal dated 28.4.2006 in E.P.No.50/02 to contend that neither the principle of resjudicata can be invoked in the matter nor the petitioner can be non-suited on any such ground. At this juncture observations in the context of the controversy made by the apex Court in the case of Raja Muhammad Afzal V. Ch Muhammad Altaf Hussain (Supra) are of immense relevance and importance, which are reproduced hereunder:
"Keeping in view these provisions of law, it is clear that a challenge to an election is possible only through an election petition triable by a Tribunal established for that purpose and that it is within the powers of the Tribunal to determine whether the returned candidate was or was not on the nomination day qualified for or was disqualified from being elected as a Member. In view of such a scheme of the law, the finality referred to and made the basis of the argument by the learned counsel for the appellant could not stand in the way or be a bar to the jurisdiction and powers of the Election Tribunal.
There is another indicator in sub-section (5) of Section 14 of the Act that finality could not be attached qua the election tribunal to such a decision. The inquiry at the stage of scrutiny of nomination paper and the hearing of the appeal against the acceptance of the nomination paper is summary and the decision is to be within such time as may be notified by the Commission. With these drawbacks in handling the appeal and in disposing it of when a more elaborate and complete procedure for the trial of the same issue is provided before the Election Tribunal after the returned candidate has been notified, such a summary inquiry could not bar the more elaborate inquiry provided for in Chapter VII of the Representation of the Peoples Act".
The same principle is discernible also from Saeed Ahmad Shah v. Masood Ahmed (PLD 2003 SC 340).
In view of such guiding principles laid down by the Hon'ble Supreme Court of Pakistan there remains nothing to be dilated upon as the issue stand clinched through authoritative pronouncements. Thus judgment in W.P.No 16830/02 does not in any way operate as resjudicata nor it bars the petitioner from filing election petition under the law. The issue is decided accordingly.
This is issue of vital importance in this case. The case of the petitioner in a nutshell is that since the respondent was Sub-Inspector in Punjab Police and was dismissed from service for misconduct, he was disqualified from being elected or chosen as Member. The provisions of Article 63(1)(i), S. 99(1-A)(i) and Article 8-D (2) (i) as amended have been invoked for this purpose. The respondent on the other hand has pleaded that he had tendered resignation and if any dismissal order was passed he was not aware of the same and that in any case since no moral turpitude was involved he was not disqualified from being elected a member of the Assembly.
The entire case of the petitioner in seeking the election of the respondent as void is that he was disqualified as his dismissal from service amounted to "misconduct" whereas the stance of the respondent is that mere dismissal from service not involving moral turpitude is no disqualification. At this juncture the evidence led by the parties may be adverted to. Ex.P-2 is the order dated 28.10.1990 by virtue of which the respondent was dismissed from service, the operative part whereof is that "in order to save his skin from the expected disciplinary action, he has tendered his resignation but in light of the above discussion it is crystal clear that the accused Sub-Inspector is a habitual absentee, incorrigible and is not interested in service and such type of officers do not merit retention in the department. He is, therefore, dismissed from service with immediate effect in absentia under the Punjab Police (E&D) Rules, 1975 the period he remained absent shall be considered without pay while the period of his suspension shall be treated as such". The petitioner while appearing as PW-1 has pressed into service his dismissal as disqualification from being Member of the Assembly. He categorically denied that any fabricated document was produced about dismissal of respondent before the Returning Officer. The respondent in his statement as R W-1, admitted that he had been Sub-Inspector in Police but emphasized that he had tendered resignation from the said post and thereafter had been contesting the elections and even won the election held in the year 1997. He initially chose to deny that he had been dismissed from service. Such a stance, however, he could not maintain for long. Later he faltered and became shaky during the cross-examination and eventually admitted that despite his resignation, the Department had dismissed him from service. It is thus no more an issue that the respondent had indeed been dismissed from service. The effect, thereof, however, remain to be seen in the light of the relevant provisions of law. The learned counsel for the petitioner relies upon Secretary, Education, N.W.F.P. Peshawar and 2 others v. Mustamir Khan and another (2005 SCMR 17) to contend that a wilful absence from duty amounts to "misconduct". Judgment dated 28.4.2006 in Election Petition No. 50/2002 by a learned Election Tribunal is also relied upon by him. The learned counsel for the respondent has on the other hand laid great stress that it is only dismissal involving moral turpitude which can disqualify a candidate from contesting the election or being Member of the Assembly. For that matter the judgment of the learned Election Tribunal in E.A.No.162-R/02 is being relied upon whereby the nomination papers of the respondent were accepted. He has also relied upon an order dated 22.8.2005 passed by the Hon'able Supreme Court of Pakistan in C.P.No.1662-L/05.
As per Article 63(1)(i) and (j) of Constitution of Islamic Republic of Pakistan, 1973 a person shall be disqualified from being elected or chosen as and from being a member of Parliament if--
"(i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct or moral turpitude; or
(j) he has been removed or compulsorily retired from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct or moral turpitude; or.
According to Section 99 (1A) (i) of the Representation of People Act, 1976 (LXXXV of 1976) a person shall be disqualified from being elected as and from being a member of an Assembly, if--
"(ii) has been dismissed from the service of Pakistan or service of a corporation or officers set up or controlled by the Federal Government, Provincial Government or a local Government on grounds of misconduct or moral turpitude; or"
Article 8D(2)(i) of the Conduct of General Elections Order, 2002 (Chief Executive's Order No.7 of 2002) has also got relevancy as it originally was that--
"(i) he has been dismsised from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct involving moral turpitude; or"
It may be noticed that the above-mentioned clause 8-D(2)(i) of the Conduct of General Elections, 2002 was amended by Chief Executive Order No.35 of 2002 dated 6.11.2002 and for the word "involving" the word "or" was substituted, which were to be deemed to have always been so substituted. It may be observed that the judgment of the learned Election Tribunal in E.A. No.162-R/02 proceeded on the premises that dismissal from service on the ground of misconduct involving moral turpitude only would debar a candidate, but in view of the amended clause 8-D (2) (i) ibid, of the Conduct of General Election Order, 2002 such a view no longer holds good.
or' is used, the various members of the sentence are to be taken separately. Ifand' is used they are to be considered jointly". A passage from page 827 of the same book can usefully be referred according to which "It is the duty of a Court of law to primarily adhere to the strict literal interpretation of the words used, and the substitution of conjunction should not be made without sufficient reason".
These are salutary principles of interpretation of statutes which cannot be ignored or overlooked while interpreting a provision of law. In the present case the intention of the legislature is quite evident and obvious. The undermentioned comparative statutory position of the disqualification of the type would make the intention of the legislature clearer beyond any doubt:--CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973
CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973.
Article 63 (1)(i)
Article 63(1)(i)
Before L.F.O.
SUBSTITUTED BY THE LEGAL FRAME WORK ORDER DATED 21.8.2002.
"A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlas-e-Shoora (Parliament) if he has been dismissed from the service of Pakistan on the ground of misconduct."
"A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlas-e-Shoora (Parliament) if he has been dismissed from the service of Pakistan or service of a Corporation or office set-up or controlled by local Government on the ground of misconduct or moral turpitude."
Article 63 (1) (j)
Article 63 (1)(i)
BEFORE L.F.O.
SUBSTITUTED BY THE LEGAL FRAME WORK ORDER DATED 21.8.2002
"A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlas-e-Shoora (Parliament) if he has been removed or compulsorily retired from the service of Pakistan on the ground of misconduct unless a period of three years has elapsed since his removal or compulsory retirement; or"
"A person shall be disqualified from being elected or chosen as, and from being a member of the Majlas-e-Shoora (Parliament) if-he has been removed or compulsorily retired from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct or moral retirement; or"\
REPRESENTATION OF PEOPLES ACT 1976
Section 99(1-A)(i)
BEFORE AMENDMENT OF 2002
REPRESENTATION OF PEOPLES ACT 1976
Section 99(1-A)(i)
AFTER AMENDMENT THROUGH ORDINANCE NO. XXXVI OF 2002
"A person shall be disqualified from being elected as, and from being a member of an Assembly, if-he has been dismissed from the service of Pakistan on the grounds of misconduct."
"A person shall be disqualified from being elected as, and from being a member of an Assembly, if-he has been dismissed from the service of Pakistan or service of a Corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct or moral turpitude."
CONDUCT OF GENERAL ELECTION ORDER 2002, Article 8-D(2)(i)
AFTER CHIEF EXECUTIVE'S ORDER NO. 7 OF 2002
CONDUCT OF GENERAL ELECTION ORDER 2002.
Article 8-D (2)(i)
AMENDED BY CHIEF EXECUTIVE'S ORDER DATED 6TH NOVEMBER 2002
"A person shall be disqualified from being elected or chosen as, and from being a member of the Majlas-e-Shoora (Parliament) or a Provincial Assembly if-he has been dismissed from the service of Pakistan or service of a Corporation or office set-up or controlled by the Federal Government, Provincial Government or a Local Government on grounds of misconduct involving moral turpitude."
"A person shall be disqualified from being elected or chosen as, and from being a member of the Majlas-e-Shoora (Parliament) or a Provincial Assembly if-he has been dismissed from the service of Pakistan or service of a Corporation or office set-up or controlled by the Federal Government, Provincial Government or a Local Government on grounds of misconduct or moral turpitude."
The amendment brought-about in Article 8-D(2)(i) through Chief Executive Order No. 35 of 2002 dated 6.11.2002 is not without purpose. the intention as reflected from the above provisions is quite clear that dismissal/removal or compulsory retirement from service on the ground of misconduct is also a disqualification which may or may not involve the element of moral turpitude. That is how the governing rule as stated in Salehon (Supra) "to carry out the intention of the legislature" can be given effect to.
"There is still another aspect of the matter, namely, the true effect of the retrospective inclusion of the subject of land reforms in the Concurrent Legislative List. Could it be the intention of the deeming provisions contained in the two Presidential Orders to invalidate Provincial laws which had been properly and competently made at the time of their enactment ?
When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist. The classic statement as to the effect of a deeming clause is to be found in the observations of Lord Asquith in East End Dwelling Company Ltd. v. Finsbury Borough Council (1) namely:
"Where the statute says that you must imagine the state of affairs it does not say that having down so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs".
This observation has been referred to with approval in a large number of cases decided by the Courts in this subcontinent, as mentioned by the learned Judges in the High Court. (See Commissioner of Income-tax, Bombay Presidency v. Bombay Trust Corporation Ltd. (1), Agha Shaukat Ali v. Settlement and Rehabilitation Commissioner, Lahore (2), Begum B. H. Sayed v. Mst. Afzal Jehan Begum (3), Begum B.H. Sayed v. Mst Afzal Jehan Begum (4) and Abdul Hakim Khan v. Mrs. Doreen Barkat Ram (5).
At the same time, it cannot be denied that the Court has to determine the limits within which and the purposes for which the Legislature has created the fiction. As stated by James, L.J. in Levy Ex parte Walton, (6), a statement approved by this Court in Begum B.H. Sayed v. Mst. Afzal Jahan Begum when a statute enacts that something shall be deemed to have been down which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be restored to".
There are few established principles of interpretation of statutes which can appropriately be invoked to the facts and circumstances of this case, such as that:
(i) No word in the statute is to be rendered nugatory, meaningless or otiose and full effect is to be given to the intention of the legislature expressed through the words employed by it;
(ii) Pari materia laws are kept in view as it is assumed that uniformity of language was intended. In determining the meaning to be attached to the particular expression of statute reference may be made to earlier and later Acts on the same subject and also to enactments pari materia. Statute which relate to he same subject, the same person or thing, or the same class of persons or things, are deemed to constitute one system of law: they are considered as one statute, subsequent laws are regarded as supplementary or complementary to the earlier enactments. When enacting a new law the legislature is presumed to have had in contemplation the existing statute on the same subject. (For reference see Understanding Statutes-Cannons of Construction by S.M. Zafar, 2nd Edition, Pages 590, 695, 696 and 697).
(iii) The object and purpose to be achieved by the legislature in introducing such an amendment is to be discovered by the Court.
Keeping in view the above principles, the object of amendment in clause (i) of Article 8-D(2) of Chief Executive's Order No.7/2002 by virtue of Chief Executive's Order No.35/2002 clearly was to bring such a disqualification in conformity with the other provisions of the laws on the subject i.e. Article 63 of the Constitution of Islamic Republic of Pakistan, 1973 and S.99 of the Representation of People Act, 1976 (LXXXV of 1976) to harmonize them, to ward off any possible conflict or inconsistency.
Thus there remains no doubt that phrase "misconduct involving moral turpitude" was intentionally and purposely substituted by "misconduct or moral turpitude" retrospectively. The underlying idea and object appear to be to extend the scope of disqualification to keep the person, dismissed, removed or compulsorily retired from service on the ground of misconduct, away from the elected, representative forum, though there may not be the element of moral turpitude involved in his dismissal/removal or compulsory retirement from service.
S. 152. Qualifications for candidates and elected members.--- (1) A person shall qualify to be elected or to hold an elective office or membership of a local Government, if he---
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h) has not been dismissed, removed or compulsorily retired from public service on the ground of moral turpitude;
It is this particular law which came up for consideration before the Hon'able Supreme Court of Pakistan in C.P. No.1662-L/05 and it was observed that "We are of the considered opinion that mere removal of a person on the ground of inefficiency would not involve the element of moral turpitude." This, respectfully stated, is the view of the Hon'able Supreme Court about a specific provision of the law, which has no application to the case in hand, as the law applicable here is different. In E.P No.50/02 my learned brother Mian Hamid Farooq, J. has also exhaustively dealt with the scope of Article 8-D(2) (i) and I find myself in respectful agreement with the view so expressed on this aspect.
dismissal' from service on the ground of habitual absence from duty falls within the purview and scope ofMisconduct". It has been so held by the Hon'able Supreme Court of Pakistan in Secretary Education, N.W.F.P.
Peshawar and 2 others (Supra) that "willful absence amounts to misconduct on the basis whereof, major penalty of dismissal from service can be imposed."Thus in view of the undisputed position that the respondent had been dismissed from service he is disqualified from being Member of the Assembly. His election is liable to be declared void. The issue is decided accordingly.
Relief."
Since both these issues have nexus these are being considered jointly. The petitioner has prayed for a declaration that "the candidature and election of the respondent as member of Provincial Assembly Punjab from PP 80. Jhang-VIII was void and the respondent was disqualified from being elected as such and in consequence the petitioner may very graciously be declared as an unopposed elected member of the Provincial Assembly Punjab from the said constituency". Though affirmative findings have been recorded that the respondent was disqualified from being a member of the Assembly and his election has been declared void yet it is to be seen whether the petitioner can be given seat in the Assembly in place of the respondent. Quite recently the Hon'able Supreme Court of Pakistan on consideration of number of precedents on the subject has laid down in Sh. Amjad Aziz V. Haroon Akhtar & 10 others (PLJ 2005 S.C. 226) that "Ratio of above cases on this point is that if the disqualification of a returned candidate was not notorious at the time of polling, the votes polled in favour of the successful candidate could not be thrown away by giving seat to the candidate with next highest number of votes. In the instant appeal, it was not known to the voters that the appellant was not a graduate and lacked requisite qualification for contesting the election. No steps were taken by anybody to bring to the knowledge of the electors that the appellant was not a graduate. The nomination papers of the appellant were accepted without any objection. This unequivocally postulates that the voters were unaware of his disqualification, therefore, rule of "throw away votes" could not be invoked." Again in Muhammad Nasim Turyali and others V. Ghulam Sarwar Khan and others (PLJ 2005 S.C. 1176) it was held that "When the election of a returned candidate is annulled on account of disqualification the votes caste in his favour could either be treated as thrown away votes or the electorate may be given a fresh choice to elect their representative. The former course can be adopted only when the disqualification of the candidate in question was known to the electorate and they knowingly chose to vote for such a person who was subsequently found disqualified to contest the election. The principle is that , since despite the disqualification being known and notorious the electorate votes in favour of the said candidate, they have thrown away their votes and have no right to seek fresh election. However, if this disqualification was not known to the voters and the question entailed recording of evidence and a judicial pronouncement as in the instant case then the votes cast in favour of such a candidate could not be treated as thrown away votes. In the event of such a disqualification the voters have a right to ask for fresh election. This is in line with this Court's earlier view as given in the following cases:
(1) Rashid Ahmed vs. Barkat Ali (PLD 1968 SC 30);
(2) Muhammad Afzal Khan v. Ch. Manzoor Elahi (PLD 1975 SC 1296);
(3) Saeed Hassan v. Asghar Ali (PLD 1976 S.C.6);
(4) Ahmed Saeed v. Election Tribunal (2003 SCMR 1611).
In the case of Ahmed Saeed v. Election Tribunal (supra) this Court at page 1655 held as under:
"34. The answer to the question "as to whether the votes given to a candidate who was suffering from a disqualification should be treated as being simple wasted or thrown away the consistent view of this Court is that votes given to the returned candidate without notice of the disqualification which was not notorious cannot be thrown away for the benefit of next candidate at the cost of defranchising the electors and in such circumstances fresh election is must."
In the present case the respondent has in his deposition as R W-1 stated that he had been elected in the election held in the year 1997 as well, which assertion has remained uncontroverted. Even in the present election though his nomination papers were initially rejected by the Returning Officer yet the learned Election Tribunal accepted his appeal on 12/16.9.2002 and allowed him to contest the election and writ petition filed by petitioner thereagainst was dismissed by the High Court on 18.9.2002. In such view of the matter the principle laid down and mentioned above in the precedent cases is fully attracted. The petitioner cannot be declared as unopposed elected member by disenfranchising the thousands of voters who cast votes in favour of the respondent. Thus in the facts and circumstances the petitioner cannot be granted such a relief.
In view of the above the election petition is accepted to the extent that election of respondent as Member of Provincial Assembly Punjab (PP-80 Jhang-VIII) is declared as void and notification to that effect issued by the Election Commission of Pakistan is set aside. Fresh elections to fill in the vacancy occurring in constituency PP-80, Jhang-VIII to be held in accordance with law. No order as to costs.
(Malik Sharif Ahmed) Petition accepted.
PLJ 2006 Peshawar 1
Present: Dost Muhammad Khan, J.
ABDUL RASHID--Petitioner
versus
MUHAMMAD NAZIR ABBASI 24 others--Respondents
C.R.No. 201 of 2003, decided on 25.3.2005.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revision--Execution of ex-parte decree--Delivery of possession of suit land to decree holder--Objection petition that instead of decreed Khasra numbers, other property belonging to respondent and other co-owners of adjoining--Mauza was handed over to petitioner, dismissed--Appeal also failed--Validity--Executing Court was directed to appoint competent local commission preferably revenue expert on revenue law with direction to carry out complete and extensive demarcation for locating decree suit khasra numbers and to report as to whether possession of land of decreed khasra numbers has been given to petitioner or some other khasra numbers and to prepare proper site-plan showing location of decreed suit khasra numbers with assistance of and revenue record--Held : Parties would be entitled to raise objection to report--Order accordingly. [P. 3] A
Mr. S. Hafeez-ur-Rehman Abbassi, Advocate for Petitioner.
Mr. Amir Hussain Abbasi, Advocate for Respondents.
Date of hearing : 25.3.2005.
Judgment
Impugned in this petition are the judgments dated 2.4.2001 of Civil Judge-I and dated 13.9.2003 of the learned Addl. District Judge. Abbottabad entertaining objection petition against the execution of Decree No. 228/1 passed in favour of the petitioner on 16.10.1996.
Arguments heard and record perused.
Decree in respect of suit khasra numbers was passed by the trial Court which has attained finality as it was not challenged because it was an ex-parte decree. When it was put to execution, possession of the decreed khasra numbers was handed over to the decree-holder petitioner by the local commission on 19.8.1998 which was appointed by the executing Court. The respondent-objector filed the petition that instead of the decreed khasra numbers other property belonging to him and other co-owners of adjoining Mauza was handed over to the petitioner. The objection petition does not clarify as to which khasra numbers belonging to the objector were given. It was entertained and admitted for hearing and parties were asked to adduce evidence for and against Appeal filed by the petitioner was equally dismissed.
After brief arguments, learned counsel for the parties agreed to the proposition suggested by the Court that instead of holding a full dressed trial the one adopted by the trial Court and with the view to shorten the controversy let a local commission be appointed to carry out extensive demarcation on the spot according to law and to physically verify as to whether the decree-holder has been given possession of the suit khasra numbers decreed or the one which are alleged by the objector, the learned counsel for the petitioner, however, prayed that the decree-holder is at the advanced stage of his life and the case/decree being fairly old enough time limit for the said exercise be given to the executing Court. In view of the agreement between the learned counsel to the suggested proposition this petition is disposed of in the terms that the impugned judgment of the two Courts below directing the holding of the trial and recording of evidence of the parties are set aside and instead executing Court is directed to appoint a competent local commission preferably revenue expert on the revenue law with direction that to carry out complete and extensive demarcation for locating the decreed suit khasra numbers and to report as to whether the possession of the land of decreed khasra numbers has been given to petitioner or some other khasra number and to prepare a proper site-plan showing location of the decreed suit khasra numbers with the assistance of the revenue official and revenue record. The parties would be entitled to raise objection to the report, where after the local commission may be examined by the Court giving right of cross-examination to the parties and there after the objection petition be decided but positively within two months.
(A.S.) Order accordingly
PLJ 2006 Peshawar 3 (DB)
Present: Fazlur Rehman Khan and Shahzad Akbar Khan, JJ.
DR. ANWAR ZADA and others--Appellants
versus
Mst. YASMEEN and another--Respondents
R.F.A. No. 81 of 1998, decided on 11.5.2005.
Civil Procedure Code, 1908 (V of 1908)--
----S. 96--Suit for damages--Personal search of respondent by appellant and asked questions during admission in hospital for treatment--Decreed suit--Assailed--Appellants have been sued in their private capacities for their illegal acts--Where for an illegal act of a Government Servant, Government ratified his illegal act, Govt. would be responsible and necessary party, but in present case, Provincial Government have never ratified illegal acts of appellants, rather govt. condemned their illegal acts by instituting inquiry to be conducted by inquiry committee, consisting of three doctors, regardless of fact that in pursuance of inquiry--Inquiry Committee exonerated them it has been established from evidence on record that by asking question from respondent that "Is she the girl, who made her Blue Prints"? was being heard by some members of staff of hospital and outsiders of locality, which subsequently led its wide publication in press--Held: Amount of damages granted to respondent is too high and reduced from Rs. fifty lac to Rs. twenty lac--Appeal accepted. [Pp. 8, 10 & 11] A, B, C & D
Mr. M. Waris Khan & Ghulam Nabi, Advocates for Appellants.
Mr. Muhammad Alam & S. Yunis Jan, Advocates for Respondents.
Date of hearing : 11.5.2005.
Judgment
Fazlur Rehman Khan, J.--This regular first appeal is directed against the judgment/decree dated 23.10.1998 of the learned Senior Civil Judge/Aa'la Illaqa Qazi, Dir at Timargarah, whereby suit of Mst. Yasmeen, respondent, for the recovery of damages of Rs. 50,00,000/- was decreed against Dr. Anwarzada, Appellant No. 1, with costs.
According to the averments made in the plaint. Mst. Yasmeen, Respondent No. 1 herein, and hereinafter referred to as respondent, lives at Haji Abad alongwith her parents and other members of her family. The respondent was sick since long and was under treatment of different doctors. On 22.8.1992, she came to District Headquarter Hospital, Timargarah for treatment. After obtaining OPD chit and consulting Dr. Muhammad Shoaib, Medical Specialist, she purchased medicines as per his prescription, and went to her home. However, having no relief, she again came to the hospital on 26.8.1992 for further treatment/examination and after re-examining her, Dr. Muhammad Shoaib advised her admission in the hospital. As, at that time, she had not consulted her family members and was not in possession of necessary articles/wearings, she went back to her home. On 27.8.1992, in the morning, she alongwith her father, niece Mst. Nusrat and nephew Muhammad Zeb, came to the hospital and after making arrangement for a private room in hospital by her father, she alongwith her father, niece and nephew went to the said room. After a little while, at about 10.00 a.m., Dr. Anwarzada (Appellant No. 1) came there and after asking her some indecent and irrelevant questions, went out and again came there after a few minutes alongwith Appellants Nos. 2 to 7 and started asking her further most ridiculous/indecent questions about her character. The appellants then started search of the room, their persons and bath-room and inspite of the fact that the appellants were told that the respondent is ill and Dr. Muhammad Shoaib has advised her admission in the hospital, but even then, they continued search of the room, bodies of the respondent and her family members to the extent that they were put to high-handedness and indecency. In the meantime, sufficient number of the public was attracted to the spot, who started observing the miserable conditions of her and her family members, through the door and windows of the room from the verandah. The appellants then locked the both room as well as the room from outside and asked the local police to guard against her room. Appellant No. 1 simultaneously asked the hospital staff not to provide any medicine to the respondent. In the meantime, her sister also arrived in the hospital but she was not allowed by the police guard to come in. The appellants kept the respondent and members of her family in illegal confinement since the morning of 27.8.1992 till 8.00 p.m. on 28.8.1992. Lastly, at the intervention of the SHO of the PS, the guard was removed and the respondent was allowed to go to her home without any treatment. The foregoing acts of the appellants were not only against their professional duties but the respondent and her family members were highly disgraced and in-humiliated, so much so that she was put to servere mental torture and above all, with the foregoing acts of the appellants, the incident was so advertised in the local news-papers that the relatives of the respondent became annoyed and duly armed attacked her house on 29.9.1992, at night time and started indiscriminate firing, as a result of which, her nephew was killed while her father received fatal injuries and some of the inmates of her house also received injuries. It was stated in the plaint that the Medical Supdt. District Headquarter Hospital, Timargarh, being incharge of the hospital, is being impleaded, as Defendant No. 8 (Respondent No. 2 herein).
The appellants contested the suit by filing a joint written statement. Out of the pleadings of the parties, the learned trial Court framed the following issues:--
Whether pltff: has a cause of action?
Whether suit is incompetent in present form?
Whether suit is bad for mis-joinder and non-joinder?
Whether proper Court fee has not been affixed on the plaint.
Whether this Court has got jurisdiction to try the present suit?
Whether proper notice was not given to the defendants prior to present suit, if so, its effect?
Whether suit has been malafidely instituted?
Whether defdts: are entitled to receive special costs from pltff: u/S. 35-A CPC?
Whether pltff: was advised to be admitted in Civil Hospital Timergara in view of her serious illness and consequently she got a private room on 27.8.92 for the purpose of treatment?
Whether defdts: Nos. 1 to 7 have shown indescency towards pltff: by asking irrelevant questions about her character and they also disgraced and humiliated her by conducting illegal search of her person and the room, locking the doors and bathroom as well as private room and also arranged police guard on the said room malafidely?
Whether defdts: Nos. 1 to 7 managed to stop the supply of medicines and food to the pltff: during her stay in the Hospital room and she was forcibly confined to the said room from 10.30 a.m. on 27.8.92 till 8.00 p.m. on 28.8.1992?
Whether the acts of defdts: Nos. 1 to 7 were based on mala fide and volative of their professional norms and conduct due to which pltff: faced mental torture, agony and humilitation in family as well as general public and it was in this background that the niece of pltff: was killed by the maternal uncle/relatives of pltff: in fury of anger?
What is the liability of defdt: No. 8 in the present case?
Whether pltff: is entitled to recovery of rupees 50 Lacs from defdts: on account of defamation, mental tention and agony, as damages?
Relief."
In support of her case, Respondent No. 1 besides placing certain documents on record, examined in her evidence as many as 13 witnesses, including herself while the appellants in their evidence examined 8 witnesses, including Appellant No. 1, and also placed on file certain documents and a copy of an inquiry report dated nil. After recording evidence of the parties and hearing their counsel, the learned trial Court decided all the issues in favour of respondent except Issue No. 13, which was decided in favour of Respondent No.
As a result, the suit of the respondent was decreed against the Appellant No. 1 for recovery of Rs. 50,00,000/- as damages with costs. Feeling aggrieved, the appellants have filed the present suit.
We have heard M/s. Ghulam Nabi Khan & M. Waris Khan, Advocates, for the appellants and M/s. M. Alam Khan & M. Younas Jan, Advocates, for the respondent and have also perused the record.
In support of the appeal, the learned counsel for the appellants contended that; firstly, the respondent has failed to prove her proper admission in the private room (Room No. 6) of the Hospital and the findings of the learned trial Court on Issues Nos. 10 to 12 are the result of misreading and non-reading of the evidence on record because a departmental inquiry was conducted by a team of three doctors, in which the appellants were found innocent; secondly, in the present case, the Provincial Government of NWFP was a necessary party but they have not been impleaded, as such, the present suit is not maintainable; thirdly, the respondent failed to prove all the essential ingredients of defamation and fourthly; the amount of damages awarded to the respondent is too high.
So far as the first argument of the learned counsel for the appellants is concerned, by going through the record, we find that,--
(i) the respondent was ill since some time before the present occurrence and remained patient under the treatment of different doctors. During this time, she undergone various laboratory tests vide photo-copies, Ex. PW 12/1 to Ex. PW-12/15. On 22.8.1992 she came to the District Headquarter Hospital Timargara vide OPD Chit, copy Ex. PW-8/1. On that date, she was examined by Dr. Muhammad Shoaib (PW.8). According to his statement dated 18.1.1994, he examined and advised her to be admitted in the hospital but as, according to her statement, on that date, she had no necessary wearings/articles, she left the hospital for her home. On 27.8.1992, alongwith her father, nephew Muhammad Zeb and niece Mst. Nusrat came to the hospital but as no private room of Dr. Muhammad Shoaib was available, her father through the efforts of Sher Rehman (PW.11) got a private room (Room No. 6) of the ENT Unit of the Hospital from Dr. Muhammad Gul, ENT Specialist (PW.7). Accordingly, she alongwith her father, nephew & niece shifted to the said room at about 10.00 a.m.
(ii) After about 5 minutes, Dr. Anwarzada, appellant, came to the room and started various questions of strange nature from the respondent and her father but the laters denied the same, stating that the respondent is ill and has been admitted in the hospital as patient of Dr. Muhammad Shoaib. He then left the room.
(iii) After about 10 minutes, Appellant No. 1 alongwith appellants 2 to 7 again came there. They started search of the luggage/articles of the respondent, bath-room, beds and even search of her body. Appellant No. 1 specifically asked her that, was she the girl, who had made her "Blue Prints"? However, the respondent and her father strongly refuted the allegations and told him that the respondent was a woman of good character but inspite of that the appellant continued cross-examining her, asking her insultive/indecent questions. In meantime, many persons from the hospital and nearby area were attracted to the spot, who were observing the miserable condition of the appellant and members of her family through the door and windows of the room.
(iv) After asking various questions of notorious nature, the appellants went out of the room, locked the door of the room from outside. In the meantime, local police arrived at the spot. Appellant No. 1 directed them not to allow any person into or out of the room. The respondent, her father and her niece Mst. Nusrat remained in illegal confinement from 10.00/10.30 a.m. on 27.8.1992 till 8.00 p.m. on 28.8.1992 or in other words for about 33/34 hours. Before closing the door of the room, Muhammad Zeb, the nephew of the respondent had gone out of the room and did not remain in confinement. During her confinement, the respondent was not given any sort of treatment including the food, on account of which, she remained in shock and developed temperature. On 28.8.1992 at 8.00 p.m., the police guard was removed and the respondent and her family members were allowed to go.
(v) The interrogation of the respondent and her family members by the appellants subsequently received wide publication in the various newspapers, like Frontier Post, Peshawar, Daily Mashriq, Peshawar and Daily Jang, Rawalpindi.
(vi) On the day of occurrence, i.e. 27.8.1992, Dr. Anwarzada, Appellant No. 1, was neither incharge of the Hospital nor any body had authorized him to look after the administration of the Hospital. Even private Room No. 6 was neither under his control or care.
(vii) It is also evident from record that neither the original inquiry report (copy Ex. DW-5/1) was produced in Court nor any one of the three members of the inquiry committee was examined in support of the same.
(viii) On account of the occurrence of 27.8.1992, the relatives of the respondent became highly annoyed, on account of which, some of them, duly armed, on 29.8.1992 attacked the house of the respondent and during indiscriminate firings, the niece of the respondent was killed while her father received fatal injuries. Other inmates of her house also received injuries. It is stated at that bar that the father of the respondent in pursuance of the occurrence has lost his mental balance.
From the foregoing findings, it is clear that there is neither any misreading nor non-reading of the evidence on record. Accordingly, we confirm the findings of the learned trial Court on Issues Nos. 10 to 12.
"The present action to the extent of the claim for damages for false imprisonment falls into third category, and I can see can principle upon which immunity can be claimed by he State in the circumstances of this case. The only principle upon which liability can be disowned is that when a Government servant acts without authority or in excess of his power, it is his own act for which the Government cannot be held responsible. But if the Government chooses to ratify that act it cannot than claim the immunity, the basis of which it has itself knocked out by the fact of ratification which makes the unauthorized act of the servant the act of the principal, namely, the Government itself."
In the case reported in PLD 1965 (W.P.) Karachi-I, their Lordships of a Division Bench approved the foregoing finding of his Lordship, the Single Bench, and observed that:
"The learned Single Judge's view that protection, if any, is only available to the Government officers and on ratification of an illegal action cannot absolve the Government from liability is fully justified on the legal principles involved in this matter."
We, in the circumstances, fully agree with the foregoing observations of his/their Lordships. Accordingly, the second argument of the learned counsel for the appellants is without force and is hereby rejected.
We have no reason to disagree with the foregoing well settled rule of law.
In an action for defamation, the plaintiff must prove :--
(a) a defamatory imputation or statement made by the defendant concerning his character or reputation;
(b) the publication of that imputation or statement by the defendant to a third person.
Thus, for example, in the case of a letter addressed by defendant, the plaintiff must allege and prove:
(1) The words used are defamatory;
(2) the defendant knew or ought to have known that the letter would probably be read by some person other than the plaintiff;
(3) the defamatory words have been published, that is, read by some person other than the plaintiff; and
(4) such publication was either by the defendant or as a result of such action on his part which to his knowledge actual or presumed, was likely to lead to publication."
From the foregoing passage, it is clear that actual publication of the defamation by the defendant in the press is not necessary and it would be sufficient that it led to publication in the press. It has been established from the evidence on record that by asking the question from the respondent by Appellant No. 1. that, "Is she the girl, who made her Blue-Prints?" was being heard by some members of the Staff of the Hospital and outsiders of the locality, which subsequently led to its wide publication in the press. This argument of the learned counsel for the appellant is also without force and is hereby rejected.
As far as the last argument of the learned counsel for the appellants that the amount of damages granted to the respondent is too high is concerned, it carries some weight because no hard and fast rules are available for the assessment of damages in the case of false imprisonment and their Lordships in the case, cited at the bar, on review of two cases, namely; (i) Santdas Idammal v. Province of Sindh (AIR 1945 Sindh 93) and (ii) Rajah Pedda Vencatapa Naidoo Bahadur v. Arpovala Roodrapa Naidoo and Paupa Naidoo (21 A. 504) confirmed the views of his Lordship the Single Bench that in the case of false imprisonment, substantial damages must be awarded in every case where a person has wrongfully deprived another person of his liberty and would respectfully follow the foregoing dictum of their Lordships, but taking all the circumstances of the case into consideration, we have come to the conclusion, that the sum of Rs. 50,000,00 (Rs. Fifty Lac) is on the higher side. Accordingly, it requires reduction and it would meet the ends of justice, if the same is reduced to Rs. 20,000,000/- (Rs. Twenty Lac).
No other ground was agitated at the bar by the learned counsel for the appellants.
Accordingly, we maintain the impugned judgment and decree of the learned trial Court but on partial acceptance of this appeal, reduce the decretal amount of Rs. 50,000,00/- (Rs. Fifty Lac) to Rs. 20,000,00/- (Rs. Twenty Lac) with proportionate costs, to be borne by Appellant No. 1, throughout.
(A.S.) Appeal accepted
PLJ 2006 Peshawar 11 (DB)
Present: Salim Khan and Muhammad Qaim Khan, JJ.
AURANGZEB and other--Petitioners
versus
RETURNING OFFICER/ADDITIONAL DISTT. JUDGE-III, UNION COUNCIL PAWA, ABBOTTABAD and 5 others--Respondents
Writ Petition No. 1350 of 2005, decided on 10.8.2005.
N.W.F.P. Local Government Ordinance, 2001--
----S. 152(1)(d)--Constitution of Pakistan, 1973--Art. 199--Prima facie suggestions--Fraud and forgery committed by producing false and factitious certificate during previous objection--Nomination papers for seat of Nazim U/C were rejected due to School Certificate--Admission by candidate prima facie suggested that the petitioner has committed fraud and forgery by producing false and factitious certificate during previous election, which had cancelled by concerned authority as forged and factitious one has been challenged before Civil Court and prayed for declaration to effect that was correct--Held : Either petitioner had made false statement between two competent forums in civil and in election petition or he was telling lie for purpose of the election before Returning Officer as well as before District Returning Officer--Further held : Telling lie by petitioner was a major son and therefore, he was not entitled to contest election--Petition dismissed. [P. 12] A & B
Mr. Abdul Qayyum Sarwar, Advocate for Petitioners.
Mr. Muhammad Saeed Khan, AAG. for Respondents.
Date of hearing: 10.8.2005.
Judgment
Salim Khan, J.--We heard the arguments of Mr. Abdul Qayum Sarwar, Advocate, for the petitioners, and Mr. Muhammad Saeed Khan, learned Addl. A.G. for the official respondents, on notice by the Court. We also perused the available record.
The nomination papers of Malik Aurangzeb and Aurangzeb candidates for the seats of Nazim and Naib Nazim of Union Council, Pawa, District Abbottabad, were rejected on the ground that the certificate of the candidate for the seat of Naib Nazim was not found correct. The detailed order of the learned Returning Officer is dated 31.7.2005. On appeal, the learned District Returning Officer/District and Sessions Judge, Abbottabad, in the light of statement of Aurangzeb, Petitioner No. 1, recorded on 18.5.2002 in the previous election petition, came to the conclusion that Petition No. 1 stated that he had passed the Matriculation Examination in the year 1975. The learned Returning Officer also referred to the conduct of Petitioner No. 1 and mentioned that "The candidate further admitted in his statement before Election Tribunal that the Board authorities had cancelled his certificate for the year, 1975 under Roll No. 3560. These admissions by the candidate prima facie suggest that he has committed fraud and forgery by producing false and factitious certificates during previous elections. Similarly the certificate of the year 1975 which was cancelled by the Board authorities as forged and factitious one has been challenged by him before the Civil Court of Abbottabad and prayed for declaration to the effect that the same is correct."
As a result of the above, the learned District Returning Officer came to the conclusion that either Petitioner No. 1 had made false statement between (before) the two competent Forums (in the Civil suit and in the election petition), or he was telling lie for the purposes of this election before the learned Returning Officer as well as before the learned District Returning Officer. He, therefore, held that telling lie by Petitioner No. 1 was a major sin, and, therefore, he was not entitled to contest election. He is supported by the provisions of Section 152(1)(d) of the N.W.F.P. Local Government Ordinance, 2001.
Finding no merit in the present writ petition, we dismiss it.
(R.A.) Petition dismissed.
PLJ 2006 Peshawar 13
Present: Salim Khan, J.
ZAIR SHAD--Petitioner
versus
FAZL-E-AKBAR--Respondent
C.R. No. 978 of 2004, decided on 2.5.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 31 & S. 115--Non-speaking judgment of appellate Court regarding improvements and market value--Interference in revisional jurisdiction warranted--Non-compliance of provisions of O. XLI R. 31 C.P.C. necessitate remand of case to appellate Court--Case was remanded with direction for writing of judgment in light of provisions of O.XLI, R. 31 C.P.C. [P. 14] A
PLD 1993 Peshawar 131, ref.
Mr. M. Tariq Javaid, Advocate for Petitioner.
Mr. M. Faheem Wali, Advocate for Respondent.
Date of hearing : 2.5.2005.
Judgment
Zair Shad the present petitioner, had instituted a Suit No. 595/1 on 7.12.2001 against Fazal Akbar vendee-defendant for possession through pre-emption of the suit property mentioned in detail in the plaint. The suit was decreed by the learned Civil Judge, Mardan, vide his judgment and decree dated 20.6.2002. The appeal, after remand by this Court, was again decided and allowed by the learned Additional District Judge-IV, Mardan, in Civil Appeal No. 7/13 of 2002 decided on 24.3.2004. The petitioner felt aggrieved of the said judgment and decree and approached this Court with the present civil revision.
The learned counsel for the parties argued the details of the case. On reading para 11 of the judgment regarding "Talb-e-Ishhad" and the statement of Najibullah (DW-1) to the effect that `it was correct that notice Talb-e-Ishhad was received by Nisar shop keeper and was handed over to the defendant by him it was found that the learned Additional District Judge had either not read the said part of the statement or it had slipped his attention. The case to this extent, however, was the case of non-reading of the evidence.
In para 12 of the said judgment, the learned Additional District Judge, Mardan, recorded "I do not deem it proper/necessary to touch the other points of improvements and market value of the disputed property". Para 6 of the said judgment was "As the submissions made at the bar were mainly confined to the issues of Talabs, market value of the property and its improvements, therefore, the evidence on these points requires consideration". The judgment, therefore, was not in accordance with the provisions of Order XLI Rule 31 of the Code of Civil Procedure, 1908. The guidance regarding explanation of the provisions of the said Rule was already provided in the case of Government of N.W.F.P. through Secretary, Forest Department, Peshawar and 2 others v. Zain Khan (PLD 1993 Peshawar 131).
The non-speaking judgment of the learned Additional District Judge, Mardan, regarding the points concerning improvements and market value as mentioned above, warrant interference of this Court due to non-reading of some part of the evidence and due to non-compliance with the provisions of Order XLI, Rule 31 of the Civil Procedure Code, 1908. The circumstances in this case require that the case be remanded to the learned District Judge, Mardan, with the direction to transfer the said case of appeal to an Additional District Judge at Mardan for hearing the arguments of the parties in the light of their evidence and for writing of the judgment in the light of the provisions of the above quoted Rule.
I, therefore, accept the present civil revision, set aside the impugned judgment and decree of the learned Additional District Judge-IV, Mardan in Appeal No. 7/13 of 2002 decided on 24.3.2004 and remand the case back with the directions as mentioned above. Parties are directed to appear before the learned District Judge, Mardan for further orders on 16.5.2005.
(A.A.) Case remanded
PLJ 2006 Peshawar 14
Present: Salim Khan, J.
KHAN SIDDIQUE and others--Petitioners
versus
ABDUL AKBAR KHAN and others--Respondents
C.R. No. 40 of 2005, decided on 11.4.2005.
Specific Relief Act, 1877 (1 of 1877)--
----S. 42--Claim of ownership on basis of inheritance--Plaintiffs predecessors through whom they claimed ownership were never entered as owners of property in question--Plaintiffs could not produce any evidence to show as to why names of their predecessors were not entered as owners in revenue record and why they and their ancestors remained silent for a long time to claim their ownership if they were entitled to the same--Plaintiffs were given fair chance to prove their title but they did not avail the same at relevant time--Party to litigation cannot be allowed to fill up gaps by production of evidence again and again--Negligence of plaintiffs or their counsel to produce relevant record at the proper time should not prejudice defendants at any stage--Concurrent judgment of Courts below do not warrant interference at revisional stage. [Pp. 15 & 16] A & B
1999 SCMR 1326, ref.
Mr. S.M. Attiq Shah, Advocate for Petitioner.
Nemo for Respondents.
Date of hearing : 11.4.2005.
Judgment
Khan Siddique and his other near relatives brought Suit No. 41/1 instituted on 6.12.2003 decided on 21.2.2004 against Abdul Akbar Khan and others for declaration to the effect that the plaintiffs had become owners of 3 kanals 17 marlas 8 sersai land in khasra No. 5027 of Mauza Chak Turangzai, Kandi Badra Kehl, by inheritance, while the remaining half property was owned by the owners of Kandi Maroof Khel, that Defendant No. 1 was not enttiled to sell the total land measuring 8 Kanals 1 Marla, and that the sale of the suit property by Defendant No. 1 in favour of Defendants Nos. 2 to 5, vide Mutations Nos. 7725, 7726 and 7727 attested on 21.11.1993 to the extent of above mentioned shared of the plaintiffs was wrong, void, illegal and the result of fraud and as liable to cancellation. The suit was also for an order of injunction restraining the defendants till the decision of the case, and for possession of the suit property.
The suit was contested by Defendants Nos. 1 to 5. Issues were framed. The parties examined Amir Zaman Khan Patwari Halqa as PW.1, Muhammad Riaz ADK, Charsadda as PW.2, Muhammad Diyar again as PW.2, Khan Raziq Plaintiff No. 2 as PW.3 as well as Anwarullah Junior Clerk EDO Health Office as DW. 1, Fazal Subhan as DW.2, Ajab Ghani as DW.3, Sajid Khan attorney of Defendants Nos. 1 and 4 as DW.4, and Syed Shoreen Shah Patwari Halqa was also examined as witness on the request of the plaintiff. The evidence was, then, closed. The learned Civil Judge, Charsadda, after hearing arguments, and vide judgment and decree dated 21.2.2004, dismissed the suit of the plaintiffs. The learned Additional District Judge-V, Charsadda, vide his judgment and decree in Civil Appeal No. 47/13-Neem instituted on 12.4.2004, dismissed the appeal also on 19.11.2004. The application for further examining Patwari Halqa and after Qanungo was also dismissed. S. M. Atique Shah, Advocate, for the petitioners and Mr. Muhammad Iqbal Khalil, Advocate, for Respondents Nos. 1 to 5, on pre-admission notice, argued the case. I also perused the available record.
It was clearly admitted by PW.1 Amir Zaman Patwari Halqa that Dad Gul, Taza Gul, Akbar Ali and Syed Hassan sons of Haider Ali were not entered as owners in the suit property. The plaintiffs were claiming their rights through the said persons. The Patwari Halqa produced copies of mutations dated 21.11.1993 concerning Defendant No. 1, which were still intact till the time of evidence of the parties. Muhammad Riaz ADK stated that Abdul Akbar Khan sold the whole area of 8 kanals 1 marla vide Mutations Nos. 7725, 7726 and 7727, copies Ex. PW.2/1, Ex. PW.2/2 and Ex. PW.2/3 in Khasra No. 5027. These mutations were not objected to at the relevant time. It was, however, brought on record that 7 kanals land was transferred to Abdul Akbar Khan Defendant No. 1 vide Mutation No. 7723.
The plaintiffs could not produce any reliable evidence to show that why the names of their forefathers were not entered as owners in the revenue record, why they were excluded specifically from the ownership of the suit property, and why the plaintiffs and their ancestors remained silent for such a long period. Fair chance of examining and cross-examining the witnesses and for production of revenue record through them was given to the plaintiffs, which they did not avail at the proper time. A party cannot be allowed to fill up the gaps by production of evidence again and again. It could not be shown by the plaintiffs that such a fair chance was not provided to them. The negligence of the plaintiffs or their counsel to produce the relevant record at the proper time should not prejudice the defendants at any stage. Rounds of litigation during the process of litigation in a case are not to be allowed only in order to satisfy a party.
The learned Original Court and the learned Appellate Court have properly appreciated the evidence available on record and have properly disallowed the application of the plaintiffs for other rounds which, if allowed, would have amounted to filling up the gaps in their evidence, and unnecessary delay in disposal of the case at the cost of injustice to the defendants. The law would help vigilant and not the indolent is the established maxim of Jurisprudence. (1999 SCMR 1326). It do not find any defect in the judgment of the learned Appellate Court which had correctly confirmed the judgment of the learned Original Court. The concurrent findings on facts of the two Courts do not warrant interference at this stage. I, therefore, dismiss the Civil Revision in limine as being without any merit.
(A.A.) Revision dismisseds
PLJ 2006 Peshawar 16 (DB)
Present: Muhammad Qaim Jan Khan and Salim Khan, JJ.
Mst. SAFIA BIBI--Petitioner
versus
RETURNING OFFICER, UNION COUNCIL SAKHAKOT BANDA JAT, DARGAI, DISTT. COURTS DARGAI and 4 others--Respondents
W.P. No. 1383 of 2005, decided on 11.8.2005.
Constitution of Pakistan, 1973--
----Art. 199--Local Bodies Elections--Rejection of nomination papers assailed by petitioner--Name parentage and number of voters list of proper and seconder as well as name of union council and ward have been left blank in nomination papers--Some signature at the space meant for proposer was found but there was no signature or thumb impression at the space meant for seconder--Such being exemplary incomplete papers, merited rejected, which was done--Petitioner was not properly nominated candidate--No proof was available on record as to who was her proposer or seconder--Time limit for submission of complete nomination papers cannot be extended to fill up lacunae--Valuable right having accured to nominated candidates for rejection of petitioner's nomination papers, they cannot be condemned unheard in absence of impleading them which was not done--Petition dismissed. [P. 17] A
Mr. M. Haroon Iqbal, Advocate for Petitioner.
Mr. Saeed Khan, Addl. A.G. for Respondents.
Date of hearing : 11.8.2005.
Judgment
Salim Khan, J.--Mst. Safia Bibi came to this Court with the present writ petition with a request that her nomination papers be accepted because her proper had signed her nomination papers, and the non-filling of the nomination papers was merely an irregularity. We heard the learned counsel for the petitioner as well as the learned Addl. AG for the official respondents, on notice by the Court, and perused the record.
The name, parentage and number in the voters list of the proposer and the seconder as well as the name of the Union Council and the Ward have been left blank in the nomination papers. There is some signature at the space meant for the proposer, but there is not signature or thumb-impression at the space meant for the seconder. This is an exemplary incomplete nomination paper and merited rejection, which was done. The appeal was also properly dismissed.
The petitioner was not a properly nominated candidate. There was no proof on record that who was her proposer or seconder. A time limit had been fixed for submission of complete nomination papers, but the petitioner failed to find out a proposer and a seconder for herself at the proper time. She could not be given extended time to fill up the lacunae. The other candidates are not made parties to the proceedings by the petitioners, but valuable rights have accused to those candidates by the rejection of nomination papers of the present petitioner. They cannot be condemned unheard.
We do not find any merit in this writ petition, which is dismissed.
(A.A.) Petition dismissed.
PLJ 2006 Peshawar 18 (DB)
Present: Muhammad Qaim Jan Khan and Salim Khan, JJ.
ATTA-UR-REHMAN and another--Petitioners
versus
GOVERNMENT OF N.W.F.P. through SECRETARY LOCAL GOVT. ELECTIONS & RURAL DEVELOPMENT DEPARTMENT PESHAWAR and 10 others--Respondents
W.P. No. 1343 of 2005, decided on 10.8.2005.
Constitution of Pakistan, 1973--
----Art. 199--Petitioners claim to contest election of `Nazim' and "Naib Nazim" of union council concerned--Petitioner's name is included in voter's list which is official document, and presumption of truth is attached to same--When it was proved that a person was resident of an area for purposes of elections to National and Provincial Assemblies, he was proved to be resident for Local Government Bodies Elections also for the same area, which are to be hold in August 2005--Fact that name of petitioner was mentioned in voter's list of "Khat Kaal" which in fact was "Khad Gal" and address of petitioner had been mentioned as "Khal Gal" and address of petitioner had been mentioned as "Khad Gal" and the same was only due to difference of writing in Urdu and English, which changed "Khad Gal" to Khat Kaal--Writ petition was admitted for full hearing and allowed the same to the effect that petitioners be declared as validly nominated candidates for seats of "Nazim" and "Naib Nazim" of concerned union council that they be enlisted in the list of contesting candidates for said seats and symbols be allotted to them and that they be allowed to contest election against mentioned seats and that results would have to be announced in accordance with election law/rules. [P. 19] A
Mr. Naveed Akhtar, Advocate for Petitioner.
Mr. Muhammad Saeed Khan, Add. A.G. for Respondents.
Date of hearing : 10.8.2005.
Judgment
Salim Khan, J.--The name of Zamin Khan son of Wazir is available in the voters list of 2002 at
Serial No. 157 for the area of Khat Kaal of Tehsil Dir in District Upper Dir.
The address of Zamin Khan son of Wazir has been mentioned as Khad Gal' in the nomination papers. Petitioner No. 2 submitted an affidavit to the effect thatKhat Kaal' was in fact Khad Gal', and it was only the difference of writing in Urdu and English, which changedKhad Gal' to
`Khat Kaal.
We heard the arguments of Mr. Naveed Akhtar, Advocate, for the petitioners, and Mr. Muhammad Saeed Khan, Addl. A.G. for the official respondents, on notice by the Court. We also perused the available record.
As we have already held in so many other cases that the voters list of 2002 is an official document, and presumption of truth is attached to it. Both the lists of 2000-2001 and 2002 were prepared by the same office, through under different laws. The said office could have corrected the voters list of 2000-2001 in the light of the list prepared for the year 2002. When it is proved that a person was resident of an area for the purposes of elections to the National and Provincial Assemblies, he was proved to be resident for the Local Govt. Bodies elections also for the same area, which are to be held in August, 2005.
We, therefore, admit the present writ petition for full hearing and allow it to the effect that the petitioners be declared as validly nominated candidates for the seats of Nazim and Naib Nazim of Union Council, Barikot of Tehsil Kalkot in District Upper Dir, that they be enlisted in the list of contesting candidates for the said seats, that symbols be allotted to them, that they be allowed to contest election against the mentioned seats, and that the result shall have to be announced in accordance with the election law/rules.
(A.A.) Order accordingly
PLJ 2006 Peshawar 19 (DB)
Present: Muhammad Qaim Jan Khan and Salim Khan, JJ.
SARDAR HAROON-UR-RASHID and another--Petitioners
versus
MUHAMMAD ANWAR and 5 others--Respondents
W.P. No. 1213 of 2005, heard on 10.8.2005.
Constitution of Pakistan, 1973--
----Art. 199--Acceptance of nomination papers of respondent by District Returning Officer, assailed--Objection raised by petitioners against respondent nomination, being question of fact, District Returning Officer, had made up his opinion on basis of record--Where more than one opinion can be formed on certain facts at original or appellate stage, and one of such opinions has been followed by a competent forum at that stage, opinion formed while dealing with writ petition cannot be substituted for such opinion--Opinion formed by District Returning Officer had been formed on basis of solid reasons--Present case, prima facie being in favour of respondents, nomination papers submitted by respondents were rightly accepted--Deep inquiry, recording of full evidence and going deep into merits and demerits of case were out of scope of process of scrutiny of nomination papers as also out of scope of writ petition. [Pp. 20 & 21] A
Mr. H. Ghulam Basit, Advocate for Petitioners.
Mr. Saeed Khan, Addl. A.G. for Respondents.
Date of hearing : 10.8.2005.
Judgment
Salim Khan, J.--Sardar Haroonur Rashid and Professor Muhammad Din have brought this writ petition against Muhammad Anwar, Sayyed Zahoor Hussain Shah and four others. They contended that the nomination papers of Respondents Nos. 1 and 2 were rejected on the objection petition of the petitioners on the ground that the respondents had concealed their assets. The objection petition was submitted, in fact, by Sardar Haroonur Rashid, Petitioner No. 1, in which he had not joined his co-candidate with him. The learned Returning Officer discussed the case of Muhammad Anwar, Respondent No. 1, and did not discuss the case of Sayyed Zahoor Hussain Shah.
As there is no appeal or cross-objection by the present petitioners against the order of the learned Returning Officer concerning Respondent No. 2, therefore, the case of Respondent No. 2 was not discussed at the appellate stage, and hence, the case of Respondent No. 2 cannot be discussed at this stage for the first time.
The learned District Returning Officer/District and Sessions Judge, Haripur came to the conclusion that the defect in the assets declaration form furnished by the appellants was neither intentional nor for any ulterior motive. He, therefore, accepted the appeal and set aside the impugned order of the learned Returning Officer. We heard the learned counsel for the petitioner as well as the learned Addl. AG for the official respondents, and the learned counsel for Respondents Nos. 3 and 4, on notice by the Court. We also perused the record.
Being a question of fact, the learned District Returning Officer/District and Sessions Judge, Haripur, had made up his opinion on the basis of the record. When more than one opinion can be formed on the basis of certain facts at the original or appellate stage, and one of such opinions has been formed by a competent Forum at that stage, an opinion formed while dealing with writ petition cannot be substituted for such an opinion. The opinion formed by the learned District Returning Officer/District and Sessions Judge, Haripur, has been formed on the basis of solid reasons.
The stage of scrutiny of the nomination papers may attract the proceedings of summary inquiry and same proceedings can also be conducted at the appellate stage and it is to be seen Whether the case, prima facie, is in favour of the candidate, whose nomination papers are under consideration, is against him. The learned District Returning Officer/District and Sessions Judge reached to the conclusion that the case was, prima facie, in favour of Respondents Nos. 1 and 2 as detailed inquiry, recording of full evidence and going deep into merits and demerits of the case are out of the scope of process of scrutiny of the nomination papers as well as out of the scope of writ petition.
We find no merit in the present writ petition, and we dismiss it.
(A.A.) Petition dismissed
PLJ 2006 Peshawar 21 (DB)
Present: Muhammad Qaim Jan Khan and Salim Khan, JJ.
Sardar HAROON-UR-RASHID and another--Petitioners
versus
Syed NAZRAN SHAH KAZMI & 3 others--Respondents
W.P. No. 1202 of 2005, decided on 10.8.2005.
North West Frontier Province Local Government Ordinance, 2001--
----S. 152(1)(i)--Constitution of Pakistan (1973), Art. 199--Local Government Election--Acceptance of nomination papers, Assailed by petitioner on ground that respondent having no property in specific village had misrepresented in his nomination that he was owner of property in that village--Such question being question of fact District Returning Officer had made up his opinion on basis of record--Where more than one opinion can be formed on basis of certain facts at original or Appellate stage opinion formed while dealing with writ petition cannot be substituted for such opinion--Scrutiny of nomination papers being proceedings of summary inquiry, detailed and deep inquiry and recording evidence cannot be done in proceeding of writ petition--Acceptance of respondent, nomination papers on basis of evidence on record cannot be interfered with in writ jurisdiction, therefore, the same was dismissed being devoid of merit. [Pp. 22 & 23] A
Mr. H. Ghulam Basit, Advocate for Petitioners.
Mr. S. Amjad Ali Shah, Advocate for Respondents.
Saeed Khan, Addl. A.G. for State.
Date of hearing : 10.8.2005.
Judgment
Salim Khan, J.--The present writ petition has been brought by Sardar Haroonur Rashid and Professor Muhammad Din, candidates for the seats of Nazim and Naib Nazim of Union Council Kot Najibullah, Tehsil and District Haripur. They contended that Syed Nazran Shah Kazmi, Respondent No. 1, and Sardar Mazhar Elahi, Respondent No. 2, candidates for the seats of Nazim and Naib Nazim respectively of Union Council Kot Najibullah, have concealed their assets. The learned Returning Officer rejected the nomination papers of Respondents Nos. 1 and 2 due to non-compliance with Section 152(1)(i) of the N.W.F.P. Local Government Ordinance, 2001, on the application of Sardar Haroonur Rashid, Petitioner No. 1. The learned Returning Officer in his detailed order dated 24.7.2005 discussed the case of Sardar Mazhar Elahi only and came to the conclusion that he has concealed his property situated in village Dedan of Kot Najibullah Area. He did not discuss the case of Syed Nazran Shah Kazmi. An appeal was filed by Syed Nazran Shah Kazmi and Sardar Mazhar Elahi against Sardar Haroonur Rashid and the Returning Officer. That appeal was accepted by the learned District Returning Officer/District and Sessions Judge, Haripur, vide the impugned order dated 27.7.2005.
As there was no cross-objection by the present petitioners against the order of the learned Returning officer concerning Syed Nazran Shah Kazmi, therefore, the case of Syed Nazran Shah Kazmi was not discussed at the appellate stage and cannot be discussed at this stage for the first time.
We heard the learned counsel for the petitioners as well as the learned counsel for Respondents Nos. 1 and 2, and the learned Addl. AG for the official respondents. We also perused the record.
The learned counsel for the petitioners submitted that the appeal of Syed Nazran Shah Kazmi and Sardar Mazhar Elahi was not competent because Petitioner No. 2, though a joint candidate with Petitioner No. 1, was not made a party to that appeal. Reply to his contention was that Petitioner No. 1 had not joined his co-petitioner while filing the objection petition and it was on the objection petition of Petition No. 1, without joining Petitioner No. 2, that the nomination papers of Respondents Nos. 1 and 2 were rejected. They were, therefore, aggrieved of the activity of Petitioner No. 1, and not of Petitioner No. 2, though Petitioner No. 2 might have been in league with Petitioner No. 1 secretly. There is no force in the contention of the learned counsel for the petitioners in this respect as the objection petition was made only by Petitioner No. 1, and only he was the necessary party.
The learned District Returning Officer, while dealing with the case at the appellate stage, has mentioned that Appellant No. 2 produced the Patwari Halqa, who stated that Appellant No. 2 had no property in village Dingi and that it was by mistake that Appellant No. 2 mentioned his property in village Dedan to be the property in village Dingi. The learned counsel for the respondents further relied on the Aks Shajra Kishtwar before us and contended that the property of village Dedan was situated at the border of village Dingi and is near to that village, therefore, that land is called by them as `Dingi Wala Raqba'.
Being a question of fact, the learned District Returning Officer/District and Sessions Judge, Haripur, had made up his opinion on the basis of the record. When more than one opinion can be formed on the basis of certain facts at the original or appellate stage, and one of such opinions has been formed by a competent Forum at that stage, an opinion formed while dealing with writ petition cannot be substituted for such opinion. One of the purposes of the writ petition is to see whether the petitioner has a right which should be given to him and has not been given to him by the Court, forum or authority having jurisdiction to give it, and to direct such Court, forum or authority to give or allow such right to the petitioner, by commission or omission, and also to see and ensure that such Court, forum or authority, subject to the jurisdiction of the Court exercising writ jurisdiction, acts in accordance with law and not otherwise. The opinion formed by the learned District Returning Officer/District and Sessions Judge, Haripur, has been so formed on the basis of solid reasons, he had jurisdiction for that under the relevant law, and he properly appreciated the law and facts of the case.
The stage of scrutiny of the nomination papers may attract the proceedings of summary inquiry and such proceedings can also be conducted at the appellate stage because the proceedings at the appellate stage are continuation of proceedings at the original stage. At the time of scrutiny of nomination papers and at appellate stage, it is to be seen whether the case, prima facie, is in favour of the candidate, whose nomination papers are under consideration, or it is against him.
The learned District Returning Officer/District and Sessions Judge reached to the conclusion that the case was, prima facie, in favour of Respondents Nos. 1 and 2 as detailed inquiry, recording of full evidence and going deep into the merits and demerits of the case are out of the scope of the process of scrutiny of nomination papers as well as out of the scope of the writ petition.
We find no merit in the present writ petition, and we dismiss it.
(A.A.) Petition dismissed
PLJ 2006 Peshawar 23
Present: Ijaz-ul-Hassan, J.
NAWAB ALI--Petitioner
versus
IMTIAZ KHAN, CHIEF EXECUTIVE--Respondent
C.R. No. 93 of 2005, decided on 6.5.2005.
(i) Administration of Justice--
----Best evidence with held by plaintiff--Adverse presumption would be drawn against plaintiff for with holding best available evidence. [P. 26] B
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction, exercise--Findings on questions of fact or law recorded by Court of competent jurisdiction cannot be interfered with in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities--Judgment impugned in all respects, are neither arbitrary or fanciful and fulfill all requirements of doing justice on basis of cannons known in that behalf--No misreading or non-reading of evidence on part of forums below was pointed out--Concurrent findings of fact recorded by Courts below being un-exceptionable would not call for interference in revisional jurisdiction. [P. 26] A & C
1996 SCMR 1918; PLD 2004 SC 633 ref.
Mr. Muhammad Salim Khan Toru, Advocate for Petitioner.
Mian Fazle Amin, Advocate for Respondents.
Date of hearing : 29.4.2005.
Judgment
Shortly narrated the facts relevant for the disposal of instant civil petition are that Nawab Ali, proprietor, National Medicine Company, Mardan plaintiff, instituted suit in the Court of Senior Civil Judge, Peshawar against Imtiaz Khan, Chief Executive M/s. Imco Pharmaceutical Industries (Pvt.) Limited, Peshawar, defendant for recovery of Rs. 20,575/- on account of medicines returned after termination the agreement dated 12.5.1994. It was averred in the plaint that plaintiff used to deal in medicine business and in this respect, an agreement was executed between him and the defendant on 12.5.1994. Subsequently the agreement was terminated. The defendant promised to pay the price of the returned medicines but he did not honour his commitment which led the plaintiff to file suit.
The suit was resisted on various grounds legal as well as factual. The claim of the plaintiff was denied and an amount of Rs. 16,685/- was stated to have been paid to him. The pleadings of the parties gave rise to the framing of following issues:--
Whether the plaintiff has got a cause of action?
Whether the suit of the plaintiff is mala fide?
Whether the suit is within time?
Whether the suit in its present from is bad and liable to be dismissed.
Whether the plaintiff has filed the suit with the intention to damage the reputation and good will of the defendant business?
Whether the defendant has got the right of receiving damages and heavy cost from the plaintiff on dismissal of the suit?
Whether the plaintiff has violated the provision of the agreement dated 12.5.1994, if so, its effect?
Whether the parties have cleared the accounts on 6.6.1995 and the plaintiff received an amount of Rs. 16,865/- and no amount is outstanding upon the company?
Whether the plaintiff has wind-up his duties according to the agreement dated 12.5.1994 without prior notice to the Company?
Whether the suit is liable to be dismissed without any further proceedings, being against law and Sharia as such this Court has no jurisdiction to entertain the same?
Whether the suit is liable to be rejected U/O 7 Rule 11 C.P.C. for non-affixation of Court fee and lessor valuation?
Whether the plaintiff is entitled to the decree as prayed for?
Relief?
The plaintiff in order to prove his claim appeared as PW.1 and produced Farman Ali and Noor Ahmad Shah as PW.2 and PW.3 respectively. In rebuttal, solitary statement of defendant was recorded as DW.1. Upon consideration of the material on record, learned Civil Judge, Peshawar, seized of the matter, dismissed the suit vide judgment and decree dated 30.4.2004, which was maintained in appeal by learned Additional District Judge, Peshawar vide his judgment dated 16.10.2004. Hence the instant revision petition.
M. Saleem Khan Toru, Advocate for the petitioner bitterly criticized the judgments and decrees of the Courts below and attempted to argue that sufficient material was available on the file to substantiate the claim of the plaintiff which has been excluded out of consideration and kept aside without any justifiable reason which has resulted in manifest injustice. The learned counsel reiterated that the impugned decisions are outcome of mis-reading and non-reading of evidence and cannot be allowed to remain intact. In this regard he placed reliance on Muhammad Sain Appellant vs. Muhammad Din Respondent (1996 SCMR 1918).
Mian Fazle Amin, Advocate for the respondent, on the other hand, contended that both the Courts below properly appraised the evidence on record and their judgments are not tainted with any illegality/irregularities thus those are not open to interference in revisional jurisdiction. The learned counsel also submitted that the statement of respondent has remained unchallenged and thus the same was considered sufficient to dislodge the claim of the petitioner. To support the plea reliance was placed on Islamuddin and others vs. Ghulam Muhammad and others (PLD 2004 Supreme Court 633).
I have examined both the judgments passed by the Courts below and find that the same are unexceptionable, legal, apt to the facts and circumstances of the case and do not call for any interference by this Court. It is settled law that the findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. The judgments impugned in all respect, are not arbitrary or fanciful and fulfill all the requirements of doing justice on the basis of cannons known in this behalf. The learned counsel has not been able to point out any mis-reading or non-reading of evidence on the part of the forums below. It may be recalled here that Accountant of the respondent company stated to have issued receipt in favour of the petitioner, has not been examined. So is the case with Khoban Shah. It has been rightly contended on behalf of the respondent that best available evidence has been withheld by the petitioner without any reason. It needs no reiteration that withholding of best available evidence is not desirable and an adverse presumption is drawn against the party withholding such evidence. It has been forcefully contended on behalf of the petitioner that the receipt issued by the Accountant of the respondent company to the petitioner undertaking return of the price of the medicines, stands fully proved and the Courts below were not justified to take a contrary view and exclude the same out of consideration. The submission of the learned counsel is without merit. The receipt has not been proved and it is of no help to the petitioner as rightly held by the Courts below.
In view of what has gone above, it follows that the claim of the petitioner has not been satisfactorily proved and both the Courts below appreciated the material on record in its true perspective. The concurrent findings of fact recorded by the Courts below are unexceptionable and hardly call for interference of this Court in its revisional jurisdiction. The revision petition is devoid of force same is dismissed in limine.
(A.A.) Revision dismissed
PLJ 2006 Peshawar 26 (DB)
Present: Muhammad Qaim Jan Khan and Salim Khan, JJ.
Mst. JANAT ZARA--Petitioner
versus
DISTRICT RETURNING OFFICER/DISTRICT & SESSIONS JUDGE, HANGU and 3 others--Respondents
W.P. No. 1357 of 2005, decided on 9.8.2005.
North West Frontier Province Local Government Ordinance, 2001--
----S. 87--Constitution of Pakistan (1973), Art. 199--Local Government Elections--Petitioners nomination papers for Muslim General Seat were rejected--Legality--Seats for Muslim General are open to male as well as female candidates--Petitioner was thus eligible for contesting election against seat for Muslim General and her form for said seat should have been accepted of not defective on any other ground--No other ground of defect and rejection having been shown by any of two forums, form/application of petitioner submitted for seat of Muslim General was fit for acceptance--Writ Petition was allowed to effect that petitioner was a candidate for seat of Muslim General of union council concerned and she has to be enlisted in list of contesting candidates for seat in question that symbol be allotted to her and she would be allowed to contest election concerned. [Pp. 27 & 28] A
Mr. Naveed Maqsood Sethi, Advocate for Petitioner.
Mr. Muhammad Ayaz, Deputy Attorney General for Respondents.
Date of hearing : 9.8.2005.
Judgment
Salim Khan, J.--The nomination papers of Mst. Janat Zara, petitioner, were submitted with the intention that she was contesting candidate for the seat reserved for Women of Union Council Dalan of Tehsil Tall in District Hangu But, she was issued form for the seat of Muslim (General), which she submitted. The learned Returning Officer rejected the said form on the ground that the petitioner was a lady, who was not allowed to contest election on the seat for the Muslim (General). Her appeal to the learned District Returning Officer/District and Sessions Judge, Hangu, was also rejected with the observations that the form for the seat of Muslim (General) was different from the form for the seat of Muslim (Women) and that the petitioner had not filed proper nomination form, which could not be remedied at this stage. We heard the learned counsel for the petitioner, and the learned DAG for the State, on notice by the Court. We also perused the available record.
According to Section 87 of the N.W.F.P. Local Government Ordinance, 2001, only two seats are reserved for the Muslim Women and only women can contest against the said seats. But, the seats for Muslim General are open to male as well as women because these seats are not reserved only for male persons. It is true that the form could not be changed at the time of scrutiny, and the petitioner could not be allowed to contest on the seat reserved for women. But, the learned Returning Officer and the learned District Returning Officer did not properly interpret the relevant law, as the petitioner was eligible for contesting election against the seat for Muslim (General), and her form for the said seat should have been accepted, if not found defective on any other ground. As no other ground of defect and rejection has been shown by any of the two Forums, the form/application of the petitioner submitted for the seat of Muslim (General) is fit for acceptance against the said seat.
We, therefore, admit the present writ petition for full hearing, and allow it to the effect that the petitioner is a candidate for the seat of Muslim (General) of Union Council Dalan, Tehsil Tall, District Hangu, that she has to be enlisted in the list of contesting candidates for the said seat, that a symbol has to be allotted to her, that she shall stand allowed to contest against the said seat, and that the result shall have to be announced in accordance with the election laws/rules.
(A.A.) Petition accepted.
PLJ 2005 Peshawar 28
Present: Ijaz-ul-Hassan Khan, J.
FARIDOON KHAN--Petitioner
versus
SARFARAZ--Respondent
C.R. No. 610 of 2004, decided on 11.7.2005.
North West Frontier Province, Pre-emption Act, (X of 1987)--
----S. 13--Civil Procedure Code, (V of 1908), S. 115--Suit for pre-emption--Suit decreed by trial Court was dismissed by Appellate Court--Lgality--Petitioner as per record had successfully proved making of talbs in accordance with requirements of law by proceedings informer as well as marginal witnesses and also himself appeared as witness--Appellate Court while employing by per technical approach discarded such cogent evidence on ground which was not legally valid--Judgment of trial Court while decreeing suit was based on sound reasoning and proper appreciation of evidence--Material on record had not been properly assessed and appreciated by Appellate Court, which had resulted in manifest injustice--Judgment and decree of Appellate Court was thus set aside while that of trial Court decreeing suit was restored. [Pp. 30 & 31] A & B
2001 SCJ 361; PLD 2003 Peshawar 179, ref.
Mr. Abdul Sattar Khan, Advocate for Petitioner.
Mr. Muhammad Anwar, Advocate for Respondent.
Date of hearing : 1.7.2005.
Judgment
Sarfaraz Khan defendant purchased from one Saliheen, suit land measuring 5 kanals 19 marlas bearing different Khasra numbers situated in the area of Mauza Narai, Tehsil Takht Bhai, District Mardan, vide Mutation No. 721 attested on 15.5.1990 for ostensible price of Rs. 60,000/-. Faridoon Khan, plaintiff instituted before Senior Civil Judge, Mardan a suit for possession through pre-emption on the ground of being a co-sharer, contiguous owner and participator in immunities and appendages therein. The defendant resisted the suit by filing his written statement. In view of the pleadings of the parties, following issues were formulated for trial:--
Whether the plaintiff has got a cause of action?
Whether suit is time barred?
Whether the plaintiff has not fulfilled the requirements of talabs properly?
Whether the sale consideration has been fixed in good faith and actually paid?
Whether the defendant has made improvement over the suit land, if so, to what extent and its effect?
Whether/What is market value of the suit land?
Whether the plaintiff is estopped to sue?
Whether the plaintiff is entitled to the decree as prayed for?
Relief.
The learned Civil Judge, Mardan at Takht Bhai, seized of the matter, upon consideration of the material before him, decreed the suit by judgment and decree dated 27.5.2003. An appeal was preferred thereagainst, which was accepted by learned Additional District Judge, Mardan a Takht Bhai on 8.3.2004. The impugned judgment and decree was set aside and suit was dismissed. Feeling aggrieved, Faridoon Khan, petitioner has approached this Court by way of filing instant Civil revision under Section 115 of the Code of Civil Procedure.
Mr. Abdul Sattar Khan Advocate, for the petitioner, strenuously contended that the judgment and decree of the learned appellate Court suffers from the vice of misreading, mis-construction and non reading of evidence on record and does not qualify the requirements of a valid judgment. Additionally, he urged that learned appellate Court failed to appreciate the evidence in a legal fashion and came to an erroneous conclusion. The judgment of learned trial Court is/was based on sound reasoning and proper appreciation of evidence. The learned appellate Court was having no justification muchless plausible and legal, to interfere with the same. By doing so, the learned appellate Court has exceeded from the jurisdiction lawfully vesting on its part. To substantiate the please, reliance was placed on Abdul Qayum (Deceased) through LRs. vs. Mushk-e-Alam and another (2001 SCJ 361) and Yar Muhammad vs. Bashir Ahmad (PLD 2003 Peshawar 179).
Qazi Muhammad Anwar Advocate, representing the other side, controverted the arguments advanced on behalf of the petitioner and attempted to argue that the appellate Court has elaborately discussed every aspect of the case and dealt with the same in detail, leaving no room for further consideration. The learned counsel contended that the appraisal of evidence undertaken by the appellate Court was perfectly in accordance with the principles settled by the superior Courts about appraisal of evidence in civil cases and the same did not suffer from any legal infirmity which could be interfered with by the High Court in the exercise of its revisional jurisdiction under Section 115 of the Code of Civil Procedure.
Section 13 of the NWFP Preemption Act, 1987 relates to the demands of preemption according to Islamic law of preemption before institution of a suit by the prospective preemptor. These demands have been termed as
talb-i-muwathibat',talb-i-Ishhad; and talb-i-Khusumat'.Talb-i-muwathibat' is to be made immediately by a preemptor in a sitting or meeting in which he has come to know of the sale and there and then declaring his intention to exercise the right of preemption. In case of talb-i-ishhad' the preemptor is required to send a notice in writing attested by two truthful witnesses under registered cover acknowledgement due to the vendee confirming his intention to exercise the right of preemption soon after thetalb-i-muwathibat' but not later than two weeks. After talb-i-muwathibat' andtalb-i-ishhad' the preemptor is required to make `talb-e-khusumat' by filing a suit in the Court of competent jurisdiction to enforce his right of preemption.
A perusal of the record would reveal that the petitioner has successfully proved on record the making of talabs, in accordance with the requirements of Section 13 of NWFP Preemption Act, 1987, by the production of informer, as well as marginal witness and also himself appeared as witness. The making of talb-i-muwathibat', talb-i-ishhad' andtalb-i-khusumat' stood proved on record, but, the learned appellate Court, while employing hypertechnical approach and while giving undue importance to minor slip of tungs of petitioner's witnesses, discarded such an extensive evidence, on no ground muchless valid. It has nowhere been the case of respondent either in his written statement, or in his Court statement, that he was in Saudi Arabia at the time when notice talb-i-ishhad' was given to him. The learned appellate court, on its own and without their being any evidence to this effect, illegally held that as respondent was in Saudi Arabia, therefore, though, noticetalb-i-ishhad' had been issued but, could not be served and so, did not accept the making of
`talb-i-ishhad'. This approach of the learned appellate Court, is contrary to the settled principle of law, justice, equity and fair play. It may be added here that while dilating upon the cross examination of PW.5, the learned appellate
Court unnecessarily exploited the slip of tungs of this witness, wherein he stated to have informed the petitioner of the transaction after three days of attestation of Mutation. This sentence of the witness is mere slip of tungs, which is but natural, but the learned appellate Court, advanced a very strange notion that the portion of statement, which goes against deponent should be considered. There is no such law in vogue, rather this is a very technical and unreasonable personal approach of the learned appellate Court, which is unwarranted under the law. The judgment of learned trial Court is based on sound reasoning and proper appreciation of evidence. the learned appellate Court was having no jurisdiction muchless plausible and legal, to interfere with the same. I agree with learned counsel for the petitioner that material on the record has not been properly assessed and appreciated by the learned appellate Court, which has resulted in manifest injustice. Under the well entrenched principle of law only glaring omissions, contradictions and dishonest improvements introduced in evidence of witness would render it unreliable. In the instant case, no such glaring contradiction or inconsistency could be pointed out by learned counsel for the respondent. In the result and for the foregoing reasons, I accept this civil revision, set aside the impugned judgment of the learned appellate Court and restore that of the trial Court. There shall be no order as to costs.
(A.A.) Revision accepted
PLJ 2006 Peshawar 31
Present: Salim Khan, J.
MINISTRY OF DEFENCE--Petitioner
versus
JAVED & CO.--Respondent
C.R. No. 320 of 1999, decided on 15.4.2005.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Limitation Act, (IX of 1908), Art. 149--Revision--Suit for recovery of over payment--Dismissal by trial Court on point of limitation--Appeal also failed--Challenge to--Law of limitation as provided in Limitation Act, 1908 is to be strictly observed because delay in initiating legal proceedings provides valuable rights to opposite party which, once accrued cannot be snatched by opposite party on any existing ground whatsoever--Law of limitation is equally applicable to Government Federal or Provincial and to all litigants who are entitled to be dealt with in accordance with provisions of Arts. 4 and 25 of Constitution of Pakistan--Period of limitation is not to be condoned except on convicting explanation, specially unavoidable circumstances, legal disabilities importance of litigation in general public interest, or innocent lapse or fault inspite of advertence and due diligence and like--Mere fact that valuable rights of plaintiff/petitioners are involved in matter, was not good ground by itself for condonation of delay--Held : Impugned order of Appellate Court is based on correct understanding of law and proper appreciation of record on file which order neither suffers from any illegality or material irregularity nor is perverse or result of misapplication/non-application of power of jurisdiction, nor based on misreading, nonreading or over reading of any evidence--Petition dismissed. [Pp. 35 & 36] A & B
Mr. Hamid Farooq Durrani, D.A.G. for Petitioner.
Mr. Waqar Hanif Bhatti, Advocate for Respondent.
Date of hearing : 8.4.2005.
Judgment
The brief facts leading to the stage of arguments before me are that on 27.5.1981 the present petitioners and respondent-company entered into a contract for construction of 125 beds Hospital at Pakistan Aeronautical Complex, Kamra, which work was completed by the respondent and the final bills were paid to him in the year 1986-87. But it came to light on the basis of audit in the office in 1987 that an amount of Rs. 3,59,630/24 was allegedly paid in excess to the respondent, for which he was not entitled, that the respondent failed to re-pay the said amount on repeated correspondence, hence a Suit No. 134/1, was filed on 31.7.1995 by the petitioners against him in the Court of learned Senior Civil Judge, Nowshera. Issues arising out of the pleadings of the parties were framed. The plaintiffs examined Khalid Mehmood SDO B&R Army as PW.1. and then closed the evidence of the plaintiffs. The defendant examined Maqsood Ahmad SDO B&R GEF-6, Kamra as DW.1, Afsar Ali UAG GEDP as DW.2, and Pervaiz Khan Managing Director as DW.3 and closed the evidence.
The learned Original Court decided that the suit of the plaintiffs was time-barred in accordance with Clause 65(d) of the Agreement between the parties, and that period could not be stopped by filing suit under Article 149 of the Limitation Act, 1908. It was further held that the audit assessment regarding over-payment to the defendant was carried out by the Audit Test Team at the back of the defendant without affording him an opportunity to show-cause, that the proceedings were void and illegal, and could not be termed to had been legally taken within the stipulated three years period, on payment of the final bill. Ultimately, the suit of the plaintiffs was dismissed. The present petitioners filed appeal in the Court of learned District Judge Nowshera which was contested by the respondent. The said appeal was also dismissed by the learned Appellate Court on the basis of its judgment dated 12.4.1999, hence this revision petition.
Mr. Hamid Farooq Durrani, learned DAG and Mr. Waqar Hanif Bhatti, Advocate, argued the case on behalf of the respective parties. I also perused the record.
It was on 27.5.1981 that the contract agreement duly signed by the representatives of the parties, copy Ex. PW.1/1, was finally accepted. The contract was for construction of 125 bedded Hospital at Kamra. The period for completion of work was twenty one months and CMES (DP)-1 Kamra was declared Controlling Officer and Engineer in-charge for the work. The final bill was prepared on 25.1.1986. It was as a result of the test audit of the Garrison that the controversy between the parties regarding over payments of Rs. 3,61,356/83 started in September, 1981. Suit No. 134/1 was instituted by the present petitioners in the Court of learned Senior Civil Judge, Nowshera on 31.7.1995 which was decided on 21.11.1997. The learned Senior Civil Judge was of the view that as the final bill was paid on 25.1.1986, and the period for adjustment of over payments, according to Clause 65(d) of the MES (General Conditions of a Contract), was three years, therefore, the period started from 25.1.1986 and could not be stopped by filing the suit under Article 149 of the Limitation Act, 1908. He, therefore, dismissed the suit. On appeal, the learned District Judge decided that Article 96, and not Article 149 of the said Act, was applicable, and the suit was, therefore, dismissed. He also discussed the case on merits, like the learned Original Court, and came to the conclusion that the suit was time-barred.
The learned DAG appearing for the petitioners contended that Article 149 mentioned above was applicable. The learned counsel for the respondent supported the judgments of the above named two Courts. He also referred to Section 29 of the Limitation Act, 1908 and submitted that the period prescribed in the General Conditions was the period of limitation. But Section 29 ibid is related to Statutes and not to documents of the nature of the referred General Conditions.
The learned District Judge had also found that the appeal before him was time-barred and was liable to dismissal. He discussed that attested copies of the impugned judgment and decree dated 21.11.1997 were delivered to the petitioner on 3.2.1998, but time was consumed in correspondence and counsel was informed on 24.2.1998 to file appeal. He informed the Ministry on 31.3.1998 to file appeal in the Court of learned District Judge. Another Advocate was appointed on 1.4.1998. Wakalat Nama (Power of Attorney) was signed and attested on 6.4.1998, but appeal was filed on 11.4.1998. Application for condonation of delay was also signed on 6.4.1998, but was filed on 11.4.1998. The learned Appellate Court did not find any convincing explanation for condonation of delay and declared the appeal hopelessly time-barred. He, therefore, after referring to the merits of the case, also dismissed the appeal, vide his judgment and order dated 12.4.1999, impugned in this Revision Petition, while deciding Appeal No. 17/13 of 1998 instituted on 11.4.1998. Prima facie, the suit was to be instituted within one month from 21.11.1997, and after adding the period of obtaining copies to it. But the appeal was filed on 11.4.1998 inspite of the fact that copies were delivered on 3.2.1998.
Delay was condoned in the case of Chief Land Commissioner, Punjab, Lahore vs. Makhdoom Syed Nazar Hussain Shah and 13 others (1975 SCMR 352) with the following observations:--
"This petition is barred by four days" and "The dalay, it seems has been due to the negligence of the dealing officials in the office of the Land Commission. In the application for the condonat on of the delay, this has admitted and it has been mentioned that action has been initiated against the defaulting officials. In the circumstances this short delay of four days can be excused. The delay is, accordingly condoned."
The explanation, that the delay was due to negligence of the official, was inadvertent and unintentional and action had been initiated against the defaulting official, was found convincing.
Delay of 208 days was condoned in the case of Ch. Manzoor Elahi vs. Federation of Pakistan etc. (PLD 1975 SC 66) with the observations that public interest was involved in the case, there was plausible explanation forthcoming for the condonation of delay, and constitutional question of public importance regarding the jurisdiction of the Supreme Court and High Courts was involved in the case. Delay of several months was condoned in the case of Syed Ahmad Hussain vs. The Chief Justice and Judges of the West Pakistan High Court (PLD 1961 SC 162) at the time of granting of the special leaving on sufficient grounds, and the august Supreme Court of Pakistan declined to interfere with the order of condonation.
In Superintendent of Central Excise, Lyallpur vs. Ch. Faqir Hussain (PLD 1958 SC (Pak.) 167, it was mentioned in the petitioner for condonation of delay that extra time was needed for consultation in a number of officers including the Ministry of Law of the Government of Pakistan and for the engagement of special Counsel. It was, however, observed:--
"No extended period of limitation is provided for Government, as litigants before this Court. This is because it is felt that enjoying unusual facilities for preparation and conduct of their case, as against those available to private litigants, Governments do not need any greater latitude in respect of limitation than the ordinary litigant. The reasons advanced for delay are not, in our opinion, convincing, and we wish to emphasize the necessity for as great vigilance on the part of Governments in these matters as the Court is entitled to expect from, and enforces against, private litigants."
It was observed in the case reported as 1975 SCMR 91 "As observed by this Court in more than one judgment, Government is not entitled to any preferential treatment as compared to ordinary citizens in adjudication of civil matters", observation of the Apex Court in the case cited as 1975 SCMR 277(1) was "As valuable proprietary rights have come to be vested in the respondent, we do not find it a fit case to condone the delay. The petition is dismissed as barred by time."
It was observed in the case reported as 1981 SCMR 37 "The time said to have been spent during which the various authorities were examining the matter with a view of decide whether an appeal should or should not be filed cannot be excused. This Court has repeatedly laid down that so far as the limitation is concerned, the Government cannot claim to be treated in any manner different from an ordinary litigant. In fact, the Government enjoys unusual facilities for the preparation and conduct of their cases and their resources are much larger than those possessed by ordinary litigants. If inspite of these facilities the Government cannot comply with the requirements of the law of limitation, then it is to take step to have that law (changed)". The precedents in the cases cited as 1979 SCMR 45 and 1979 SCMR 191 were referred in this respect.
While deciding the case Custodian of Enemy Property vs. Hoshang M. Dastur and others (1995 SCMR 191), the august Supreme Court of Pakistan distinguished the cases reported as PLD 1975 SC 66 and PLD 1961 SC 162, and took into consideration the cases reported as PLD 1958 SC (Pak.) 167, 1974 SCMR 38 and 1975 SCMR 91. It was observed therein by the Apex Court "Inspite of this the petitioner did not show due diligence in filing the petition for leave to appeal."---"Most of the precious time was wasted in routine in repeatedly writing to the Law Division asking them to reconsider their advice."-----and "It was also argued before us on behalf of the petitioner that this is a hard case in which very valuable property has been disposed of by specific performance for inadequate consideration and on onerous terms under the impugned decree. But it was held in Mst. Hajran vs. Sardar Muhammad that the mere fact that valuable rights of the petitioner are involved, is by itself no proper ground for condonation of delay in civil matters." The case of Hajran is reported as PLD 1970 SC 287. The ruling of this Court reported as PLD 1998 Peshawar 21 on the subject is mentioned to further strengthen the view taken in this case.
As a result of the above discussion, in the light of the judgments of the august Supreme Court of Pakistan, it can be safely held that (a) the law of limitation as provided in the Limitation Act, 1908 is to be strictly observed because delay in initiating legal proceedings provides valuable rights to the opposite-party which, once accrued, cannot be snatched by the same opposite-party on any existing ground whatsoever, and by an other party except through due process of law on establishing rights and liabilities in accordance with law, (b) the law of limitation is equally applicable to the Government, Federal or a Provincial, and to all the litigants who are entitled to be dealt with in accordance with the provisions of Articles 4 and 25 of the Constitution of the Islamic Republic of Pakistan, (c) the period of limitation is not to be condoned except on convincing explanation, specially unavoidable circumstances, legal disabilities, importance of litigation in the general public interest, or innocent lapse or fault inspite of advertence and due diligence, and the like, and (d) the mere fact that valuable rights of the plaintiff/petitioners are involved in the matter, is not good ground, by itself, for condonation of delay.
In the light of the above, there is no other option but to hold that the impugned order of the learned Appellate Court is based on correct understanding of law and proper appreciation of record on the file, which order neither suffers from any illegality or material irregularity, nor is perverse, or the result of misapplication/nonapplication of power of jurisdiction, nor based on misreading, nonreading or over-reading of any evidence. The impugned order, therefore, does not call any interference by this Court no revision. I, accordingly, dismiss the present Revision Petition, leaving the parties to bear their own costs of litigation throughout.
(A.S.) Petition dismissed
PLJ 2006 Peshawar 36 (DB)
Present: Tariq Parvez Khan, C.J. and Muhammad Qaim Jan Khan, J.
NAQEEBULLAH KHAN--Petitioner
versus
MALIK IMRAN KHAN and 6 others--Respondents
W.P. No. 105 of 2003 with C.M. Nos. 335, 336 & 412 of 2005, decided on 18.10.2005.
Constitution of Pakistan, 1973--
----Art. 199(1)(b)(ii)--Representation of People Act, 1976, S. 52--Conduct of General Election Order, 2002 (Chief Executive's Order 7 of 2002), S. 8-A--Writ of quo warranto--Respondent declared as returned candidate for constituency of PF-75 Lakki-II NWFP--Petitioner filed writ petition in form of quo-warranto challenging authority of respondent to hold public office as M.P.A.--Validity--On basis of application made by respondent to Governor of Sindh who is Chancellor of Karachi University, a high powered enquiry committee hold that B.Com degree and mark sheet in possession of respondent are fake and action of Karachi University in cancelling fake degree and mark sheet is upheld--Respondent holding B-Com degree from University of Karachi contested election which University after holding more than one enquiry held that respondent was never issued a degree and documents relied upon by him are forged, fake and tampered--Respondent is not possessed of require educational qualification--Held: Respondent was not qualified to be a candidate on date of nomination for seat of M.P.A. and he cannot satisfy us authority of law under which he holding such public office--Office of M.P.A. held by respondent declared to be without any authority of law--Writ petition allowed in circumstances. [Pp. 48, 49 & 50] D, E, F & G
AIR 1965 SC 491; AIR 1952 Nag. 330; AIR 1952 Tr.C. 66; AIR 1957 Raga 75; AIR 1961 AP 250; AIR 1970 Raj 184; PLD 1970 SC 98; PLD 1975 P. 146; PLD 1982 Kar. 604; PLD 1962 Lah. 231; 1994 SCMR 1291 and PLD 1963 SC 203.
Constitution of Pakistan, 1973--
----Art. 225--Writ of quo-warranto by a voter of constituency against an M.P.A.--Maintainability of writ petition challenged in view of bar of jurisdiction contained in Art. 225--Held: Bar of Art. 225 would not be attracted where a person having some interest furnishes information to High Court and challenges very holding of public office on ground that respondent was disqualified to hold such public office. [P. 47] A
Constitution of Pakistan, 1973--
----Arts. 63(2) & 199--Respondent an elected M.P.A.--Writ of quo warranto filed that he does not held prescribed qualification--Question of disqualification can be raised at the flour of the assembly with reference to Art. 63(2)--Objection of--Validity--Art. 63(2) of Constitution deals with a disqualification which might occur during holding of public office i.e. during membership of Assembly--Held: It is a case of petitioner that respondent was disqualified from being elected because he was not holding requisite educational qualification on date he filed his nomination papers. [P. 47] B
Constitution of Pakistan, 1973--
----Art. 199--Writ of quo warranto--Degree of respondent was cancelled after election, therefore, degree was valid on date respondent file his nomination papers and subsequent cancellation of degree would not invalidate nomination--Contention of--Held: Degree presented or relied upon by respondent was ab-initio fake or false for all legal intents, respondent would not be holding a degree with reference to before or after filing of nomination papers. [P. 48] C
Mr. Muhammad Sardar Khan, Advocate for Petitioner.
Qazi Muhammad Anwar, Advocate for Respondent No. 1.
Mr. Muhammad Habib Qureshi, Advocate for Respondent No. 2.
Mr. Nadeem Azhar, (Legal Adviser) for Respondents Nos. 5 & 6.
Mr. Abbas Ali, Addl. Advocate-General Sindh for Respondent No. 7.
Date of hearing: 22.9.2005.
Judgment
Tariq Parvez Khan, C.J.--Country wide general election for National and Provincial Assemblies were held on 10th October 2002.
Respondent No. 1 (hereinafter referred to as respondent) was one of the contesting candidates for the Constituency PF-75 Lakki-II NWFP.
Result of election was notified wherein respondent on 20.10.2002 was declared as returned candidate.
During the subsistence of his holding the public office as Member of the Provincial Assembly of the Province, a complaint was made to the Anti-Corruption Establishment at Karachi cognizance whereof was taken by its Deputy Director. The complaint was that the respondent who claims himself to be a graduate in B-Com from University of Karachi is holding fake/forged degree. Controller of Examination of University of Karachi on 31.5.2003 replied to Deputy Director Anti-Corruption that the degree of the respondent was forged. A certificate, therefore, was issued dated 2.6.2003 by the Deputy Director Anti-Corruption.
Respondent having learnt about the proceedings initiated against him on the basis of complaint at Karachi, filed a constitutional petition, CP No. D-1299 of 2003 before Sindh High Court, inter alia, on the ground that action of Deputy Directly Anti-Corruption and that of the Registrar University of Karachi including Controller of Examination whereby degree of the petitioner therein was held to be forged, such proceedings be annulled on application of maxim audi-alteram pattern. Constitutional petition was allowed on 26.1.2005 with direction that the University of Karachi shall hold proper inquiry by associating the petitioner therein i.e. the respondent.
Respondent had also filed a civil suit bearing No. 432/04 before Sindh High Court in original jurisdiction but because of acceptance of his Constitutional petition the civil suit was withdrawn on 28.1.2005.
The present writ petition was filed in this Court on 9.6.2003 i.e. a week after the degree of the respondent in the first instance was held to be forged. Respondents were asked to file their comments.
It appears that because of acceptance of Constitutional petition by learned Bench of Sindh High Court the present respondent requested this Court for hearing of this petition as no order against him was left in field. His such application was allowed.
It appears that University authorities conducted inquiry as directed by the Hon'ble Bench of the Sindh High Court and it was on 24.2.2005 that once again the conclusion arrived in inquiry that the degree held by respondent was forged.
Respondent again filed a civil suit on 5.3.2005 before the Sindh High Court which took cognizance of the case on the original side. respondents in the suit were asked to file their written statement where their stance was that suit filed by plaintiff-respondent was not maintainable in view of Sections 51 and 52 of the University of Karachi Act. After the parties were heard on the preliminary objections, the learned trial Judge on 12.4.2005 dismissed the suit and non-suited the plaintiff-respondent. Against the order of learned Single Judge on the original side, respondent filed Appeal No. 86/05 which has been now decided on 24.5.2005.
Petitioner namely, Naqibullah, claims himself to be a registered voter of Constituency and his name is enrolled at S. No. 58 on the Electoral Roll of electoral area Ghazni Khel. He has filed this petition under Article 199(1)(b)(ii) of the Constitution of Islamic Republic of Pakistan.
The writ petition is in form of quo-warranto and it has challenged the authority of respondent to hold public office as Member of Provincial Assembly of the Province.
The case was heard at sufficient length on different dates.
Learned counsel for the respondent has raised preliminary questions and objections, was heard at length including on merits.
His contention is that the writ petition filed, in the present form, is not maintainable as it not only seeks relief in nature of quo-warranto but also mandamus and writ of certiorari. His submission is that this Court in Constitutional jurisdiction ordinary extends relief which is specifically sought and not the fake one.
He further argued that an inquiry under Section 11 of the University of Karachi Act is pending against the respondent regarding genuineness or otherwise of is B-Com degree which is not finally decided, therefore, the petition would be pre-mature and not maintainable. He submits that even if it is held that degree held by the petitioner is found to be fake and bogus this finding is post-dated to the date of filing of nomination papers on which date respondent was holding a degree not declared bogus. His contention is that if on the date of nomination and election including declaration as member of NWFP Assembly in the official gazette, the degree of the respondent was valid and its subsequent cancellation would not invalidate either the nomination or its candidature or his notification as returned candidate. He further argued that in view of bar under Article 225 of the Constitution of Islamic Republic of Pakistan election disputes can only be taken and decided by the Election Tribunal constituted under the Representation of People Act 1976 and no Court other than the Election Tribunal shall have the jurisdiction. Reliance is placed on PLD 1989 SC 26 and 396 including PLD 1994 Karachi 1.
It was next argued that the petitioner before this Court is actually planted one but by a candidate who lost election against the respondent. That petitioner has got no personal interest in prosecution of the writ petition but he is being used as a tool, therefore, he is not entitled to any discretionary relief under the Constitutional jurisdiction. His argument is that issuance of writ of quo-warranto is a discretionary relief vested with the High Court and discretion shall not be exercised in favour of the petitioner unless he shows that he has some personal interest. Reliance is placed on PLD 1963 SC 203.
It is also argued that in a situation like the present one and even if for the sake of arguments it is contended that now the degree of the respondent is held to be false and fake, the matter can only be agitated under Article 63(2) of the Constitution of the Islamic Republic of Pakistan but at the floor of the Assembly and not before the judicial forum. He further argued that since the petitioner has a certificate issued by the Principal of College where he has studied, has got the Detailed Marks Certificate issued by competent authority followed by issuance of a valid degree and if any finding in given that such documents were bogus or false, is a pure question of fact which cannot be gone into in Constitutional jurisdiction. He relies on PLD 1968 Lahore 361, PLD 2001 SC 415, 1989 SCMR 918, 1983 SCMR 732 and 1982 SCMR 497. He also argued that any finding recorded by a learned Judge of the Sindh High Court where he has held degree of the respondents as fake and bogus would not be relevant because the suit was ultimately dismissed for lack of jurisdiction because of Sections 51 and 52 of the University of Karachi Act.
Learned counsel for the petitioner had earlier submitted that if one should go by tracing history of writ of quo-warranto, it was the prerogative of the State or the sovereign to ask for under what legal justification or authority a person is holding an office of command but then with passage of time and with revolution of the civilized societies it has attained the present shape i.e. an information to the Court of law with regard to a person holding a public office the Court to ask under which authority he is landing that office and to holds that he has usurped an office. Learned counsel has relied on AIR 1965 SC 491 where it was ruled that proceedings in the nature of writ of quo-warranto are tend to protect the public from usurpers of public office. It was further ruled that before a citizen can claim a writ of quo-warranto it shall first satisfy the Court that the office in question is a public office and secondly that same is held by usurper without legal authority.
Learned counsel argued that petitioner being a voter in the Constituency of which the office of Member of Provincial Assembly is occupied by respondent and he, being Secretary General of a political party at district level and even otherwise as citizen of Pakistan, has the right to file writ in the nature of quo-warranto.
Case of G.D. Karkare v. T.L. Shevde (AIR 1952 Nagpur 330) was cited where the appointment of Advocate General was challenged on the ground of overage and it was ruled by Nagpur High Court that any person could move the Court without alleging the violation of any of his specific rights.
In case reported in AIR 1970 Rajistan 184 a registered graduate of the University challenged the election of the Member of Syndicate though he was not a voter nor a candidate to the election.
It is submitted that the proceedings are initiated against the respondent in form of an information invoke in public interest. It seeks to determine the title to the office held by respondent and not the validity of his election. His submission is that respondent was suffering from disqualification as he was not a graduate as required under the laws and since his such qualification surfaced at a later stage when the election process was all over and the petitioner being not a candidate as defined under the Election Law has no remedy to question the holding of office by the respondent but through present proceedings. Reliance is placed on PLD 1970 SC 98, PLD 1975 Peshawar 146, PLD 1982 Karachi 604, PLD 1962 Lahore 230 and 1994 SCMR 1299.
"146. Election Tribunal.--No election to the National Assembly or a Provincial Assembly shall be called in question except by an election petition presented to such authority and in such manner as may be provided by Act of Parliament."
The power of the High Court to issue certain writs contained in Article 170 of the Constitution which read as under:
"170. Power of High Courts to issue certain writs, etc.--Notwithstanding anything contained in Article 22, each High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of any of the rights conferred by Para II and for any other purpose."
Similarly he referred to the Constitutional provisions relating to election disputes and jurisdiction of the High Court. Relevant Articles of Constitution of 1962 to the extent of relevancy in the present matter are reproduced as under:-
"98. Jurisdiction of High Courts.--(1) A High Court shall have such jurisdiction as is conferred on it by this Constitution or by law.
(2) Subject to this Constitution, a High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law.
(a) .................
(i) .................
(ii) ................
(b) on the application of any person, make an order:--
(i) ................
(ii) requiring a person in the Province holding or purporting to hold a public office to show under what authority of law he claims to hold that office."
(a) for disputes arising in connection with the counting of votes at an election or referendum required to be held under this Constitution to be finally determined by the Commissioner or an Election Commission; and
(b) for other disputes arising in connection with such an election or referendum to be finally determined by a Tribunal established for that purpose.
and no dispute arising in connection with such an election or referendum shall be decided otherwise than under such a law, and the validity of such an election or referendum shall not be called in question except in accordance with such a law.
(2) ...................
(3) ...................
He has also referred to the similar provisions as contained in the Constitution of the Islamic Republic of Pakistan 1973 which are as under:
"199. Jurisdiction of High Court.---(1) Subject to Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--
(a) ...............
(i) ...............
(ii) ...............
(b) on the application of any person, make an order---
(i) ...............
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office."
Article 225
"225. Election dispute. No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament)."
It is maintained that where different articles of three Constitutions were parameteria to each other but still this Court would have the Constitutional jurisdiction to ask a usurper the legal authority under which he would be holding a high office of Member of Provincial Assembly.
Distinction is made that under Election Laws only a candidate can file election petition and voter cannot. It is submitted that where the disqualification was inherent at the time of filing of nomination papers or it came to the knowledge of a candidate or any person having interest in the Constituency, mere fact that there is bar under Article 225 of the Constitution and if such bar is allowed to continue in all circumstances, the possibility would be that many law makers sitting in the Parliament though disqualified would be allowed to continue to hold office which cannot be the spirit of a democratic system.
His submission is that here the disqualification of respondent has not occurred during the subsistence of holding the office but it has only came to the knowledge of petitioner during such period. His submission is that from the dated respondent filed nomination papers he was disqualified, therefore, even Article 63(2) of the Constitution would be inapplicable to his case.
It was argued that petitioner has invoked the jurisdiction of this Court under Article 199(1)(b)(ii) of the Constitution of 1973 and his main prayer is to direct the respondent to show under what authority of law he holds or purports to hold the public office of Member Provincial Assembly. His submission is that any other relief sought in form of mandamus and certiorari is consequential and would follow to relief given in writ of quo warranto. Learned counsel maintained that although there may be no second opinion that writ of quo warranto is discretionary in nature but where the information placed before this Court is in respect of a high office like Member of Parliament or Provincial Assembly it becomes the legal as well as moral duty of this Court to oust the usurper and not to allow him to hold the office.
Learned counsel states that on merits the petitioner has got a proved case because number of documents either filed with the petition, filed with comments by respondents 6 and 7 or documents filed with rejoinder have proved a long way that degree held by respondent was fake and was never issued by University of Karachi.
He has referred to marks certificate allegedly issued by University of Karachi annexed with the comments of respondent No. 6 and with the comments of respondent No. 8. The marks certificate PR/I and PR/II, the Result Gazette PR/III, certificate dated 31.12.2003 issued by Principal College of Commerce and Economic Karachi PR/IV, Marks certificate PR/I issued by Principal of College itself, Marks certificate PR/II certified copy issued by Controller of Examination University of Karachi, documents PR/IV and PR/V filed with rejoinder.
It is argued that in view of above referred documentary evidence which are all documents prepared under the Statute and the Rules, therefore, presumption of correctness is attached therewith and are sufficient proof that respondent though was a student of the College but he has never certified his graduation degree and if issued any certificate/degree was based on tampering done in the official record whereas his Roll number not at all appeared in the Result Gazette which is the primary document nor he has been recorded as qualified in all subjects in the register maintained and kept in the office of Registrar of the University.
It was lastly argued that on the direction of the Division Bench of Sindh High Court an inquiry was held in which respondent also participated and it was concluded by inquiry that respondent has obtained the so-called degree which was forged, fake and fictitious.
It was, therefore, prayed for issuance of relief as sought against the respondent.
An objection was raised by the learned counsel for the respondent that Kashif Ayaz who has allegedly informed the Deputy Director Anti-Corruption Establishment to enquire into the genuineness of the Degree of respondent, is non-existent and is a planted fake name. An application was, therefore, filed by respondent.
Such application and contents therein were denied by the learned counsel for the petitioner by filing reply and by taking the stance that address has been wrongly taken by the respondent and they had been searching for Kashif Ayyaz in Block-16 of Gulshan-e-Johar Karachi. In fact it is Gulistan-e-Johar, Karachi.
At this stage we do not think that we shall inter into this controversy and whether the man is existent or not but we shall proceed on the basis of submissions made and the case-law cited and shall only discuss merits of the case.
Re-hearing of this case was ordered in view of application filed by learned counsel for the respondent on 2nd August, 2005 wherein he intended to file additional documents but earlier to that on 2-7-2005, counsel for the petitioner through application filed report of the High Powered Enquiry Committee where it was concluded that "B-Com. Degree and the Mark sheet in his possession (respondent) are false/fake and the action of the Karachi University in cancelling the fake degree and the Mark sheet is upheld".
As we have given in the preceding Paragraph of this judgment that action of the Karachi University wherein B.Com. Degree of Malik Imran Khan respondent was cancelled, he had twice gone to the Honourable Sindh High Court, initially in writ petition then by filing a suit on the original side and during the pendency of such proceedings, this High Powered Enquiry Committee was Constituted on application of the respondent under the orders of the Governor of Sindh.
When the case was re-taken for hearing the learned counsel for the parties agreed that the case be decided on the basis of arguments already addressed.
The Constitutional jurisdiction of this Court includes issuance of writ in the nature of quo warranto; therefore, we shall first discuss the scope of our Jurisdiction. It was ruled in the "University of Mysore Vs. Govinda Rao (AIR 1965 SC 491) while quoting a passage from Halsbury:-
"An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined."
And observed:
"...... the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provision; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognized in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the Courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the Court, inter alia, that the office in question is a public office and is held by (a) usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not."
(i) PLD 1970 Supreme Court-98 (Lt. Col. Farzand Ali & others Vs. Province of West Pakistan).
(ii) PLD 1975 P-146 (Khaista Gul vs. Akbar Khan & 7 others).
(iii) PLD 1982 K 604 (Syed Arshad Hussain Vs. The Govt. Sindh and 38 others).
(iv) PLD 1962 L 231 (Abdul Aziz & others Vs. The State and other)
(v) 1994 S.C.M.R. 1299 (Ghulam Mustafa Jatoi vs. Additional District & Sessions Judge/Returning Officer & others).
Otherwise, it is true under the Representation of People Act, 1976; and election petition can only be filed by a candidate and by none else.
No doubt that ground of dis-qualification to be disqualified on the date of nomination or has become disqualified while holding office fall within the arena of jurisdiction of the Election Tribunal but for the purpose of filing of election petition by a candidate. A candidate has been defined under the Representation of People Act, 1976;
"Candidate" means a person proposed as a candidate for, or seeking election as a member.
"Contesting Candidate" means a validly nominated candidate who has not withdrawn his candidature.
Under Section 52 of Representation of People Act it is only a candidate who can file election petition.
Bar of Article 225 of the Constitution would not be attracted where a person having some interest furnishes information to the High Court and challenges the very holding of public office on the ground that respondent was disqualified to hold such public office.
Another objection that was taken by the learned counsel was that the question of disqualification can be raised at the flour of the Assembly with reference to Article 63(2) of the Constitution of Islamic Republic of Pakistan, 1973.
We doubt that contention of the learned counsel for the respondent would not hold field because Sub-Article (2) of Article 63 of the Constitution deals with a disqualification which might occur during holding of the public office i.e. during membership of the Assembly. Here in this case, it is case of the petitioner that respondent was disqualified from being elected because he was not holding the requisite educational qualification on the date he filed his nomination papers.
Another legal objection that has been raised by the learned counsel for the respondent is that the present writ petition is not in the form of writ of quo warranto or is a mixture of writ of certiorari, mandamus and writ of quo warranto. Reference is made to the prayer part of the petition.
When learned counsel for the petitioner was confronted, he has prayed that his prayer made in Para-14 of the writ petition is no doubt in the form of mandamus but followed by relief in the nature of quo warranto and this Court can confined itself if contention of the petitioner prevails to the extent of issuance of quo warranto and the rest in left to be followed as the law would prescribe.
In view of submission made by the learned counsel for the petitioner that is main prayer is to seek relief in the nature of quo warranto, we over-rule the objection as raised by the learned counsel for the respondent.
There is yet another legal point raised by the learned counsel for the respondent that notwithstanding the legality of its otherwise decision of the Karachi University whereby the B.Com. Degree of the respondent was cancelled which was an event of after the election, therefore, the degree was valid on the dated respondent filed his nomination papers and the subsequent cancellation of the degree would not invalidate the nomination.
We regret that we cannot agree with the learned counsel for the respondent if it was subsequently then held that the degree presented or relied upon by the respondent was ab-initio fake or false for all legal intents, respondent would not be holding a degree with reference to before or after filing of the nomination papers.
Another submission of learned counsel for the respondent that writ of quo warranto is a writ of discretion and that where the petitioner has no personal interest in the election and where he wants to impeach the position of a person holding an office of Provincial Assembly, this Court should be reluctant to grant him the relief. Reliance was placed at PLD 1963 Supreme Court 203 (at Page-206(F) and Page-207(F) in a case titled "Muhammad Hussain Vs.Khadim Hussia".
Since much of the reliance was placed on the judgment of the Honourable Single Judge of the Sindh High Court, where suit of the respondent was dismissed on 12-4-2005, where cancellation of the B.Com. degree was held on merits to be correctly cancelled while simultaneously it was held by Honourable Judge that because of bar under Sections 51 and 52 of the University of Karachi Act, the Civil Courts would have no jurisdiction, arguments were advanced that any findings on facts recorded by the learned Judge in Chamber on 12-4-2004 would be nullity in the eye of law because suit was ultimately dismissed for lack of jurisdiction.
Be that as it may, judgment of Honourable Single Judge referred to above in a civil suit, is a judicial order passed by Single Judge of the Sindh High Court who is not within our appellate or Constitutional jurisdiction, better would be that we shall not make any comments either for or against the petitioner or the respondent.
The factual position as appears today before us is that on the basis of an application made by respondent to the Governor of Sindh who is Chancellor of the Karachi University, a High Powered Enquiry Committee comprising of Vice Chancellor of Karachi University, Dr. Q.R. Siddiqui, Barrister Shahida Jameel, Member Syndicate and Dr. Kausar Ali Syed, Member Syndicate of University of Karachi. They have unamiously agreed to hold on 18-6-2005 that B.Com. degree and the Mark Sheet in possession of Malik Imran Khan are false and fake and action of the Karachi University in cancelling the fake degree and mark sheet is upheld. This Court is not concerned and should not be to analyse the material that was placed before the High Powered Enquiry Committee and whether they rightly or wrongly considered. We are also not concerned if the Governor of Sindh who is Chancellor of the University has the power to constitute the Committee, we have also no concern that in the final report of the High Powered Enquiry Committee stands challenged in legal proceedings before the Sindh High Court but we have before us the report of the High Powered Enquiry Committee dated 18-6-2005. What is going on in the Province of Sindh cannot be taken cognizance by this Court because of lake of territorial jurisdiction but as we have before us the final report of the Enquiry Committee with its recommendations, we find that the authority competent to issue B.Com degree i.e. Karachi University has itself finally concluded that the B.Com. degree held out by the respondent was false and fake and any Mark-sheet issued are all bogus and cancelled, the result would be that the B.Com degree presented at the time of filing of nomination papers by the respondent was not a valid degree and today he is though sitting in the Provincial Assembly but on the basis of B.Com. Degree disowned by the authority competent to issue.
General Elections 2002 were held under Conduct of General Election Order 2002 (Chief Executive's Order 7 of 2002).
Section 8A was for the first time introduced which reads as under:-
"8A, Educational qualification for a member of Majlis-e-Shoora (Parliament and a Provincial Assembly,-- Notwithstanding anything contained in the Constitution of the Islamic Republic of Pakistan, 1973, the Senate (Election) Act 1975(I.I. 1975), the Representation of the People Act, 1976 (LXXXV of 1976), or any other law for the time being in force, a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoor (Parliament) or a Provincial Assembly unless he is at least a graduate possessing a bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974 (XXIII of 1974) or any other law for the time being in force."
Bare reading of the section would suggest that a person shall not be qualified to be elected or chosen as Member of the Majlis-e-Shoora or of the Provincial Assembly; condition precedent is to be a graduate possessing a bachelor degree recognized by University Grants Commission.
Whether a person is holding a valid bachelor degree can only be adjudged in the first instance by the authority issuing the degree.
In case of the respondent he held out to be holding B-Com degree from University of Karachi and contested election which University after holding more than one inquiry and final inquiry held by a high powered committee, has held that respondent was never issued a degree and documents relied upon by him are forged, fake and tampered. This Court in exercise of its Constitutional jurisdiction cannot go into the vires of the order of the Committee as that is beyond its jurisdiction but on the basis of report of the Commission can hold that respondent is not possessed of required educational qualification.
The result would be that respondent was not qualified to be a candidate on the date of nomination for the seat of Member Provincial Assembly and he cannot satisfy us the authority of law under which he is holding such public office. It is, therefore, declared that the office of Member Provincial Assembly held by respondent is without any authority of law. The writ petition is allowed with no order as to costs.
(M.R.A.) Petition allowed
PLJ 2006 Peshawar 50
Present: Ijaz-ul-Hassan, J.
KHADIM MUHAMMAD etc.--Petitioners
versus
TILLA MUHAMMAD etc.--Respondents
C.R. No. 1074 of 2003, decided on 13.6.2005.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Extent of--Revisional Courts have jurisdiction to correct error resulting from non-reading, misreading of evidence, where Courts below failed to exercise jurisdiction vested in them--Where trial Court has exercised jurisdiction, which is upheld by Appellate Court, High Court seldom interferes unless and until discretion has been exercised arbitrarily--High Court has very limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under S. 115 C.P.C., unless and until judgments of Courts below were result of mis-reading or non-reading of evidence of decision of case was in violation of parameters prescribed by precedents. [P. 52] A
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Civil Procedure Code (V of 1908), S. 115--Ownership of property--Proof of--Mere assertion of plaintiff's that they had become owners of property in question, by virtue of purchase from defendants without positive attempt on their part to substantiate the same, would be of no consequence--Mere fact that seller of property in question, was also writer of sale-deed, by itself, as not sufficient to doubt his credentials--Thus, findings of fact recorded by trial Court stand affirmed by Appellate Court were based on correct and careful appraisal of evidence and grounds urged stand conclusively determine by judgments of Courts below--Courts below while dismissing plaintiffs suit due to insufficiency of evidence, neither committed any misreading of evidence nor committed from consideration any material piece of evidence on record nor appreciation of evidence by them could be described as perverse, so as to warrant interference by High Court under S. 115 C.P.C.--Judgments and decrees of Courts below were thus, maintained. [P. 53] B
AIR 1928 Lahore 516; AIR 1936 Lahore 37; PLD 2000 SC 839 and 1997 SCMR 1139 ref.
Mr. Muhammad Halim Khan, Advocate for Petitioners.
Mr. Shamoon Ahmad Bajwa, Advocate for Respondents.
Date of hearing: 13.6.2005.
Judgment
Facts relevant for the disposal of instant revision are, that Khadim Muhammad and Wali Muhammad plaintiffs instituted suit on 30.7.1999 against Tilla Muhammad and Noor-ur-Rehman, defendants for declaration to the effect that plaintiffs were owners of suit land but virtue of purchase from Defendant No. 1 on the basis of unregistered sale-deeds dated 30.5.1968 and 18.4.1982 and entries in the revenue record, contrary to it, were incorrect, ineffective on the rights of the plaintiffs and liable to rectification. The plaintiffs also prayed for grant of permanent injunction restraining the defendants to transfer or alienate the suit property in any manner.
The suit was resisted and the allegations of the plaintiffs were denied. The parties were put to trial on following issues:--
Whether the plaintiffs have got cause of action?
Whether the plaintiffs are owners in possession of the suit property and the Mutation No. 972, 973, 974 and 975 in favour of defendant are wrong, illegal and ineffective upon the right of the plaintiffs?
Whether the suit is within time?
Whether the plaintiffs are estopped to sue?
Whether the plaintiffs are entitled for the decree as prayed for?
Relief.
After recording evidence pro and contra, learned Civil Judge Lahor, by judgment and decree dated 10.12.2003 dismissed the suit holding that plaintiffs have not been able to substantiate their claim and mutations in question in favour of defendants and their legal heirs had been correctly attested in accordance law. Issue No. 3, pertaining to jurisdiction, was also decided against the plaintiffs and suit was found barred with the meaning of Article 120 of the Limitation Act. An appeal was filed thereagainst, which was dismissed by learned Additional District Judge, Lahor, by judgment dated 6.7.2004.
Syed Muhammad Haleem Advocate, for the petitioners vehemently contended that the impugned judgments and decrees of the Courts below are outcome of mis-reading and non-reading of evidence and cannot be allowed to remain intact. He also maintained that omission on the part of the learned trial judge to record statement of Tilla Muhammad, respondent has materially prejudiced the rights of the petitioners and resulted in manifest injustice. It was also submitted that sale consideration of suit property was paid in full by the petitioners and possession was delivered to them but this fact was totally ignored by the Courts below which has resulted in complete failure of justice. In the last limb of arguments, it was reiterated that suit was filed well within time and the Courts below were not justified to treat the same as barred by time. In this regard reliance was placed on Fateh Ali Shah and others Vs. Muhammad Bakhsh and others (A.I.R. 1928 Lahore 516) and Ghulam Mohammad Khan and others.. Vs.. Samundar Khan and others (A.I.R. 1936 Lahore 37).
Contrarily, Mr. Shamoon Ahmad Bajwa Advocate, learned counsel for respondents submitted that both the Courts below have rightly considered the matter and have correctly exercised their jurisdiction. No mis-reading of non-reading has been asserted or pointed out, in absence of which no interference can be made in revisional jurisdiction of this Court.
There is no cavil to the proposition of law that revision Court has jurisdiction to correct error resulting from non reading, mis-reading of evidence of where the Courts below fail to exercise the jurisdiction vested in them.
It is well settled principle of law that in case the trial Court has exercise jurisdiction which is upheld by the First Appellate Court, then this Court seldom interferes unless and until the discretion is exercised arbitrarily. It is also settled principle of law that this Court has bey limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under Section 115 CPC, unless and until judgments of the Courts below are result of mis-reading or non-reading evidence or decision of the case is in violation of parameters prescribed by the superior Courts.
It is a common ground between the parties that suit land is `shamilat-e-deh' and names of Tilla Muhammad respondent and his sister Mst. Noorul Huda find place in the column of cultivation. It is evident from the record that Mutation No. 5841 was entered on 21.9.1967 and rejected on 17.9.1967. Likewise, Mutation No. 7812 was entered on 7.4.1982 and rejected on 21.9.1983. Both the mutations were rejected due to non-appearance and non-prosecution by the petitioners. No effort seems to have been made by the aggrieved party to approach the Court concerned for redressal of its grievance. This long silence on the part of the petitioners is not without significance. Both the forums below have rightly came to the conclusion that the onus to substantiate the claim was heavily placed on the petitioners but they have failed to discharge the same by producing cogent and concrete evidence and the petitioners cannot be allowed to take benefit of the weakness, if any, of their adversary. The mere assertion of the petitioners that they had become owners of suit property by virtue of purchase from Respondent No. 1, without a positive attempt on their part to substantiate the same, is of no consequence. It is true that Tilla Muhammad respondent has not appeared in Court but it is equally true that his son Muhammad Shakir entered in the witness box as DW.1 and stated that the deeds Ex. PW.4/2 and Ex. PW. 4/3 are fabricated and do not contain the signature of his father. They are in continuous possession of property in dispute and suit has been filed with sinister purpose. The mere fact that Tilla Muhammad is seller of property in suit as well as writer of the deed in question, by itself, is not sufficient to doubt his credentials.
In view of the above, I am of the considered view that the finding of fact recorded by the trial Court and affirmed by the appellate Court are based on correct and careful appraisal of evidence and the grounds urged stand conclusively determined by the judgments of the Courts below. The trial Court as well as the appellate Court have discussed every aspect of the case and dealt with the same in detail, leaving no room for further consideration. The Courts below while dismissing the plaintiffs' suit due to insufficiency of evidence, neither committed any mis-reading of evidence nor omitted from consideration any material piece of evidence on record nor appreciation of evidence by them could be described as perverse, so as to warrant interference by this Court under Section 115 CPC. In this view of the matter, I am fortified by the observations made in PLD 2000 SC 839 and 1997 SCMR 1139. In the result and for the foregoing reasons, finding no force in this revision petition, I dismiss the same with no order as to costs.
(A.A.) Revision dismissed
PLJ 2006 Peshawar 54 (DB)
Present: Nasir-ul-Mulk, C.J. and Ijaz-ul-Hassan, J.
GOVERNMENT OF N.W.F.P. through ADVOCATE GENERAL and others--Appellants
versus
MUHAMMAD IQBAL and others--Respondents
R.F.A. Nos. 62 & 64 of 1999, decided on 22.3.2005.
Land Acquisition Act, 1894 (I of 1894)--
----Ss. 18 & 54--Determination of compensation for acquired land by Referee Judge, assailed--Entire material on record, as well as, report of Local Commissioner regarding market value of land in question, was taken into consideration by Referee Judge--Local Commissioner's report was comprehensive and had rightly been made basis of impugned decision--No mis-reading or non-reading of material on record was pointed out--Compensation determined by Referee Judge being adequate and fair was thus, maintained. [P. 55] A
M. Ayaz Khan, Addl. A.G. for Appellants.
Muhammad Alam Khan, Advocate for Respondents.
Date of hearing: 22.3.2005.
Judgment
Ijaz-ul-Hassan, J.--This Regular First Appeal (RFA No. 62/99), filed by the Government of NWFP through Collector Land Acquisition, Nowshera and RFA No. 64/99, filed by Muhammad Iqbal and others, land owners, are directed against the common judgment dated 1.7.1999 passed by learned Senior Civil Judge/Referee Judge, Nowshera, raising compensation for the acquired land, from a sum of Rs. 12592/- per marla to Rs. 20,000/- per marla, with usual compulsory acquisition charges and interest etc:
The Government of NWFP was in need of acquiring some land for construction of a bridge and approach road for "Chowki", District Nowshera and in this respect vide Award No. 4/143/LAC NSR, the Collector acquired land including land of Muhammad Iqbal appellant measuring 19 kanals 17 marlas, bearing Khasra No. 1/563 and 1/564 situate in the area of Bara Banda. Feeling dissatisfied with the rate of compensation, Muhammad Iqbal filed a reference petition under Section 18 of the Land Acquisition Act, 1894 praying for compensation at the rate of Rs. 25,000/- per marla with compulsory acquisition charges etc. The learned Acquisition Judge, Nowshera enhanced the compensation to Rs. 20,000/- per marla with allied charges by means of judgment and decree dated 2.5.1995, passed in Reference Petition No. 5/4. Regular first appeals were filed, one by the land owners and the other by the Government of NWFP, which were registered as RFA No. 65/95 and FRA No.62/65 in Peshawar High Court and both the appeals were accepted, vide decision dated 2.12.1997 by a consolidated judgment recorded in RFA No. 65/95 and the case was remanded to the Referee Court for determination of the potential value of the acquired land for reasons recorded in para-4 of the judgment. After remand the Referee Court awarded the same compensation of Rs. 20,000/- per marla vide impugned judgment and decree. The land owners and the Collector being partly aggrieved and dissatisfied with the valuation of the Reference Court, filed instant appeals, which are before us for consideration.
Mr. Muhammad Ayaz Khan, learned Deputy Advocate General appearing on behalf of the appellant in RFA No. 62/99, has taken exception to the enhancement of the amount of compensation by learned Referee Judge and attempted to argue that the rate of compensation has been increased without any justifiable reason and report of the Local Commissioner has been made basis of the impugned judgment in total disregard to the material on file.
As against that Mr. Muhammad Aslam Khan, Advocate for appellant Muhammad Iqbal in RFA No. 64/99 reiterated that learned Referee Judge undervalued the land in question ignoring its market price and future potentialities and the sole criteria for the assessment of compensation for the land acquired was neither one yearly average price nor one year earlier than the date of notification under Section 4 of the Land Acquisition Act, 1894. The learned counsel submitted that evidence on record has not been properly appreciated and assessed which has adversely prejudiced the interest of his client.
We have gone through the entire record of the case with the able assistance of the learned counsel for the parties and we are of the view that the compensation determined by the learned Senior Civil Judge/Referee Judge, Nowshera is adequate and fair and the appeals deserve outright dismissal. The learned judge has taken into consideration the entire material on record as well as the report of the local commissioner appointed in compliance with the remand order of this Court, to form his opinion, regarding market price of land in question. The local commissioner has taken pains and prepared the report which is comprehensive and has rightly been made basis of the impugned decision. The submission of the learned counsel for the parties that the impugned judgment and decree is the outcome of mis-reading and non-reading of evidence which has resulted in manifest injustice and cannot be allowed to remain intact, is equally without force. Despite having been asked repeatedly to highlight any piece of evidence which was not considered or ignored by the learned Referee Judge while recording the impugned judgment and decree, the learned counsel remained unable to do so.
Pursuant to above, the appeals fail, which are hereby dismissed with no order as to costs.
We had by our short order dated 22.3.2005 dismissed the appeals for reasons to be recorded later. Above are the detailed reasons.
(A.A.) Appeal dismissed.
PLJ 2006 Peshawar 56 (DB)
Present: Talaat Qayyum Qureshi and Ijaz-ul-Hassan, JJ.
FIDA MUHAMMAD--Petitioner
versus
GOVERNMENT OF N.W.F.P. through SECRETARY LOCAL GOVERNMENT AND RURAL DEPARTMENT, SECRETARIAT, PESHAWAR and 3 others--Respondents
W.P. No. 457 of 2005, decided on 25.5.2005.
Constitution of Pakistan, 1973--
----Art. 199--Annulment of notification of specified date regarding repatriation of petitioner to his parent department, assailed by him--Constitutional petition--Maintainability--Exercise of Constitutional petition being discretionary, exercise of the same can be declined where impugned order appears to have been made on valid reasons--Writ petition would be only competent if impugned order was either void, without jurisdiction or was nullity in the eyes of law--Mere irregularity, relating to impugned order, would not suffice to subject such order to scrutiny in exercise of Constitutional jurisdiction--Petitioner has been repatriated to his parent department by competent authority and he has not been deprived of his legal rights--No law would indicate that deputationist should complete that tenure for which he had been deputed--Competent authority has discretion to repatriate any deputationist as and when his services were required to his parent department--Impugned notification relating to repatriation of petitioner having been issued for valid reasons, petitioner has no bona fide cause of action. [P. 57] A
Mr. Abdul Latif Afridi, Advocate for Petitioner.
Mr. Akhtar Naveed, DAG for Respondents.
Date of hearing; 25.5.2005.
Judgment
Ijaz-ul-Hassan, J.--Through instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Fida Muhammad seeks annulment of Notification dated 19.4.2005, regarding repatriation of the petitioner to his parent department before completion of his three year deputation period. The grievance of the petitioner in essence is that the Notification in question is based on malafides, violative of principle of natural justice and, therefore, without lawful authority and thus ineffective against the rights of the petitioner.
The petitioner is an employee of Federal Government in BPS-18 in the office of Auditor General of Pakistan and was posted as Deputy Director Audit, NWFP prior to 2.12.2004. Respondent No. 1 needed the services of a qualified officer for the post of Manager Finance for Community Infrastructure Project (CIP-II) in the Local Government and Rural Development Department and, therefore, sent a formal requisition to Respondent No. 3 vide letter dated 9.9.2004. The petitioner was selected and his services were placed at the disposal of Respondent No. 1 for posting him against the vacant post of Manager Finance (CIP-II) Peshawar. However, before completion of three years the impugned Notification dated 19.4.2005 was issued for the repatriation of the petitioner to his parent department.
We have heard Mr. Abdul Latif Afridi, Advocate for the petitioner and Mr. Akhtar Naveed, learned Deputy Advocate General for the State in the light of material on record.
The exercise of Constitutional jurisdiction under Article 199 of the Constitution is discretionary and its exercise can be declined where the impugned order appears to have been made for valid reasons.
It is well settled principle of law that a writ petition is only competent if the impugned order is either void, without jurisdiction or is nullity in the yes of law. Mere irregularity, if any, on the other hand, in some respect relating to the impugned order, would not suffice to subject the said order to scrutiny in the exercise of Constitutional jurisdiction under Article 199.
The requisitioning for services of Gul Sahib Khan Respondent No. 4 was made in the public interest and no mala fide intention is involved. The petitioner has been repatriated to his parent department by the competent authority and has not been deprived of his legal rights. There is no law that a deputationist should complete the tenure for which he has been deputed. It lies within the discretion of the competent authority to repatriate a deputationist as and when his services are required to the parent department/organization. The petitioner has been treated in accordance with his terms and conditions of appointment wherein it has been laid down that the petitioner shall serve anywhere in Pakistan and no supposed to work at the station of his choice. Learned counsel for the petitioner has failed to point out any such violation of rules or regulations, inviting interference of this Court in exercise of its extra ordinary Constitutional jurisdiction.
In view of the above, we find that the impugned Notification has been issued for valid reasons and the petitioner has no bonafide cause of action. The writ petition having been found bereft of substance, is dismissed in limine.
(A.A.) Petition dismissed.
PLJ 2006 Peshawar 58
Present: Shahzad Akbar Khan, J.
MUHAMMAD TARIQ KHAN--Petitioner
versus
Mst. GUL SAWARA--Respondent
Civil Revision No 329 of 1999, decided on 26.5.2005.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Easement Act (V of 1882), S. 13--No manner supported--Suit for declaration filed by respondent--Right of easement--Claimed use of disputed path on maturity of prescriptive rights as well as right of easement--Suit decreed by trial as well as appellate Court--Challenge to--Validity--PW admitted that on eastern side of land of respondent, there exists "Bandobasti" path--Statement of facts abundantly proves that a "Bandobasti" path is available to respondent for use of her property--Findings of two Courts below were not based on true appreciation of evidence and correct perception of law on subject--Revision allowed, concurrent findings set aside and suit dismissed in circumstances. [Pp. 60, 61 & 63] A, B & D
Easement Act, 1882 (V of 1882)--
----S. 13--Right of easement of necessity--For sustenance of claim of right of easement of necessity, it must be shown that without enjoyment of such a right, property for beneficial user whereof right exists, cannot at all be used--Held: It was not enough to show that it was merely necessary for use of property or without it enjoyment of said property would be rendered inconvenient. [P. 61] C
PLD 1991 SC 815; 1991 SCMR 119; PLD 1975 Peshawar 82 and 1991 CLC 2060.
Mr. Maqsood Ullah Khan, Advocate for Petitioner.
Mr. Zia-ur-Rehman Khan, Advocate for Respondent.
Date of hearing: 26.5.2005.
Judgment
This civil revision petition arises out of the judgment and decree dated 3.4.1999 passed by the learned Additional District Judge, Charsadda in Civil Appeal No. 52/13 whereby on maintaining the judgment and decree of the trial Court dated 24.11.1996, the appeal of the petitioner was dismissed. The short facts of the instant case are that Mst. Gul Sawara wife of Aurangzeb Khan filed a suit for declaration to the effect that she being the owner in possession of land measuring 23 kanals 10 marlas bearing Khasra No. 513/4, has the right of access to her land through path denoted as "Alif" to "Bai" in the Shajra Kishtwar. She based her claim to use the disputed path on the maturity of prescriptive rights as well as a right of easement. She averred that there is no alternative path for having an access to her landed property. Thus, according to her averments, the petitioner Muhammad Tariq had no right to make any obstruction in the path. Addedly, permanent and mandatory injunctions were also solicited.
The suit was contested by the petitioner. He filed written statement and the rival pleadings of the parties generated the following issues:--
Whether the plaintiff has got a cause of action?
Whether the suit is incompetent in its present form?
Whether the suit is bad for non-joinder of necessary parties?
Whether the plaintiff is estopped to sue?
Whether there exists a bandobasti passage towards north of plaintiff's land in Khasra No. 513-4, since long time and she has acquired right of Easement/Prescription on account of her long user of the same and defendant has no right of obstruction?
Whether there is no such passage available at site and plaintiff's claim is false and fictitious?
Relief.
The trial proceeded on the above contentious issues. The parties adduced their evidence in support of their respective contentions and the learned trial Court on conclusion of the trial decreed the suit of respondent. The appeal filed by the petitioner also could not earn any success as it was dismissed.
The learned counsel for the petitioner has vehemently argued that both the learned Courts below landed in error of mis-reading and non-reading of evidence. He contended that there is a `Bandobasti' path on the Eastern end of the property of respondent which is the actual path for the use of property. He urged that this fact has been admitted by Aurangzeb Khan (PW-2) who appeared as attorney for the respondent. For the admission of the alternative path, the statement of Jamshaidullah (PW-3) was also referred to. He emphatically argued that the disputed path passes through the property of the petitioner. The land of the two parties is separated by "Bandobasti Lakhti" and the disputed path is meant for private use of the petitioner who has also constructed a residential house there. In support of this contention, the learned counsel also made reference to and relied on the report and statement of the Local Commissioner namely Abdur Rahman Khan, Advocate, dated 5.7.1994. He argued that since it has been proved through the admission of Aurangzeb Khan (PW-2) and other hard evidence including the report of the Local Commissioner that there is a "Bandobasti" path on the Eastern side which huggs the land of respondent, the said path can very conveniently be used by respondent.
On the other side, the learned counsel appearing for respondent Mst. Gul Sawara, has defended the impugned judgment on the argument that since long the respondent is in continuous use of the disputed path and as such she has matured her prescriptive right as a matter of necessity and easement. He further submitted that the disputed path is the only convenient way for approach to the land of respondent and as such convenience cannot be disturbed by the petitioner even if it is assumed that there is alternative path leading to the path of respondent. He urged that since there are trees aging about 20/25 years standing in the "Jhangi" of the respondent, therefore, it gives way to presumption that the disputed path remained in use of the respondent for about 20/25 years. He further stated that the concurrent findings on the question of fact are not open to interference in revisional jurisdiction of this Court.
I have eagerly heard and carefully considered the arguments of the learned counsel for the parties. Patwari Halqa namely Iltaf Gul (PW-1) has in no manner supported the claim of respondent. PW Aurangzeb has eloquently admitted it correct that on the Eastern side of the land of respondent/plaintiff, there exists "Bandobasit" path. He has also admitted that on the Western side there is a water channel (Lakhti) and about 15/20 jaribs of land of petitioner is situated on the Western end and that the petitioner had constructed a residential house for himself and his tenant about 4/5 years back. PW-3 has also unequivocally stated that from "Dera Maweshyan" of respondent, there is another path at a distance of about 100 paces. It may be clarified that "Dera Maweshyan" of respondent is situated at the end of her property and it appears to be contiguous to the water course and the disputed path. The Local Commissioner was appointed who visited the spot in presence of the parties and prepared his report alongwith a map of the disputed path and its adjoining lands. The Local Commissioner has very clearly stated that the alleged path is situated in Khasra No. 465-467 which is not a "Bandobasti" path. He maintained that to the Eastern side of Khasra No. 513/4 there exists a "Bandobasti" path. It is to be noted that Khasra No. 513/4 is the property of respondent. The said path according to the statement of the Local Commissioner reaches to village Amba Dher at point "I" where a metalled road is existing. The above statement of facts abundantly proves that a "Bandobasti" path is available to respondent for the use of her property. On this aspect of matter there is a suggestion to petitioner by respondent in the following diction:
For sustenance of claim of right of easement of necessity, it must be shown that without enjoyment of such a right, the property for the beneficial user whereof the right exists, cannot at all be used. It is not enough to show that it is merely necessary for use of the property or without it the enjoyment of the said property would be rendered inconvenient. On this proposition, the Hon'ble Supreme Court in case of Abdul Hamid Shah and another v. Muhammad Yar and 13 others (PLD 1991 SC 815) has observed as follows:
"The right claimed by the respondents is the easement of necessity envisaged by Section 13 of the Easement Act, 1882. For sustenance of such a claim, it must be shown that without enjoyment of such right, the property for the beneficial user whereof the right exists, cannot at all be used. It is not enough to show that it is merely necessary for use of the property or without it the enjoyment of the said property would be rendered inconvenient."
"The consensus of judicial opinion seems to be that an easement of necessity is an easement without which the property cannot be used at all. Consideration of reasonable enjoyment of the property furnished no test for creation of such right of easement nor would convenience be the test for creation of such right. On the contrary consistent view taken by the Courts is that necessity must be an absolute necessity and not a convenient mode of enjoyment of the property. In other words it is well settled that the necessity under clause (a) of Section 13 is not an ordinary necessity but an absolute one. In Mariyayi Ammal v. Arundachala Pandaram AIR 1956 Mad. 584; Nawab Zekia Begum v. Lucknow Improvement Trust AIR 1937 Oudh 263; Daw Tint v. Maung Kywr AIR 1935 Rangoon 56; Kristnamrazu v. Marrazu 15 MLJ 255; Sheo Nath and others v. Mughla AIR 1938 Lah. 800 and Narayana Gajapatraju v. Janaki Rathayyammaji AIR 1930 Mad. 609, the same principles have been laid down. All these cases relate to the easement of necessity for right of way over the property of the transferor."
"A prescriptive right of way cannot be acquired by mere enjoyment for the statutory period. The enjoyment must be as of right, i.e., not attributable to permission implied or express. The mere fact that one person walks over the land of another, does not raise any presumption that he has a right to do so. Numerous people pass over the lands of their neighbour, friends and relations with their tacit permission. Such user, though continuous, and long, is seldom understood as being assertion of any right. In a suit for prescriptive right of way the plaintiff must show that his user was such as was sufficient to put the servient owners on notice that the enjoyment was not attributable to his tacit permission or favour. The learned Subordinate Judge does not refer to any evidence to justify his finding that the user was "as of right". In England, if long user is proved, it is presumed that the enjoyment was as of right. It would be unsafe to draw such an inference from user in this country, vide the case of Shaikh Khoda Bakhsh v. Shaikh Tajuddin and others .... Enjoyment "as of right" as distinguished from "of right" means, as if the dominant owner had the right to the enjoyment. Whether the enjoyment was as of right or attributable to tacit permission, may be difficult to determine in many cases but, however, great the difficulty is, it cannot be resolved by drawing a presumption in favour of the dominant owner, on whom lies the burden to establish his right. Whether the enjoyment was had as of right, is to be inferred from the circumstances of each particular case, and it is the duty of the dominant owner to prove facts which will justify such an inference. To entitle him to such an inference, he must show that the acts of actual user were such as to put the servient owner regarded as a reasonable man on notice that a right in the nature of an easement was being asserted or claimed over his property."
The case of Muhammad Ismail and others v. Malik Muhammad Shafi and others (1992 CLC 2060) can also be referred with advantage.
(M.A.R.) Revision accepted
PLJ 2006 Peshawar 63
Present: Muhammad Qaim Jan Khan, J.
ATTA MUHAMMAD etc.--Petitioners
versus
MUNSIF SHAH etc.--Respondents
Civil Revision No. 247 of 2005, decided on 11.11.2005.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--O.V, R.7--Concurrent findings of fact--Declaratory suit filed by petitioners dismissed by Courts below--Validity--Petitioners claimed their case and derive title from "Mst. G.F." who sold property to petitioners on strength of general power of attorney in favour of M. Shah--Lady has not been produced in all these proceedings--They also failed to produce scribe and marginal witnesses of general power of attorney--Deed is nothing but an agreement to sell for which plaintiffs can file suit for specific performance--Respondents are in possession of suit property right from 1960 and their title was fully supported by record and valid documents--Revision petition having no legal force dismissed. [Pp. 64 & 65] A, C & D
Civil Procedure Code, 1908 (V of 1908)--
----O.VI, R.17 & O.XXIII, R.2--Prayer for withdrawal of suit with permission to file fresh one or to amend plaint--Suit for declaration of plaintiffs dismissed by trial Court and appeal also met same fate--Civil revision filed--Pray of petitioners as aforesaid--Held: It is very strange that after fifteen years of suit, now petitioners wanted to withdraw suit or to amend his plaint--It is just to prolong agonies of respondents for no good grounds as sufficient time has elapsed and to allow petitioners/plaintiffs at this stage either for withdrawal of suit or amendment of plaint would be abuse of law and nothing but to prolong agonies of parties. [P. 65] B
Mr. Jan Muhammad Khan, Advocate for Petitioners.
Mr. Muhammad Alam Khan, Advocate for Respondents on pre-admission notice.
Date of hearing: 11.11.2005
Judgment
This is a civil revision filed by the L.Rs of Atta Muhammad against the judgment and decree of the trial Court dated 30.7.2002 vide which the suit of the petitioners/plaintiffs has been dismissed and also against the order of Appellate Court dated 30.10.2004 vide which the appeal of the petitioners/plaintiffs has been dismissed.
Short facts of the case are that petitioners/plaintiffs instituted a suit for declaration and possession against the respondents claiming the ownership of the disputed property measuring 57 Kanals 14 Marlas Bearing Khasra No. 896, 897 in Mouza Dheri Tehsil and District Mardan on the basis of L.R.II dated 16.3.1960 and sale-deed dated 25.6.1990. The petitioners/plaintiffs also sought correction of the revenue record and cancellation of Mutations No. 3365 attested on 15.10.1964 and 3366 attested on 25.12.1964.
The Defendants/Respondents 1 to 5 vehemently contested the suit by filing their written statement and on the divergent pleas of the respective parties, the trial Court framed almost twelve issues apart from Relief. Evidence pro and contra was recorded and after hearing the respective parties and going through the record, the trial Judge vide his judgment and decree dated 30.7.2002 dismissed the suit of the petitioners/plaintiffs with no order as to costs.
Dissatisfied with the said order, the L.Rs. of Atta Muhammad preferred appeal in the Court of Additional District Judge, Mardan who after hearing the respective parties and going through the record dismissed the appeal with no order as to costs vide his judgment and decree dated 30.10.2004.
Aggrieved from these orders, the L.Rs. of Atta Muhammad deceased namely Mst. Musarrat etc. have preferred the instant civil revision on the grounds that the two Courts below have not appraised the evidence in its true perspective and their findings on Issues Nos. 3, 5 and 7 to 12 are illegal and based on misreading and non-reading of the evidence.
I have heard learned counsel for the petitioners, Mr. Jan Muhammad Khan, at length and also Mr. Muhammad Alam Khan, Advocate, for the respondents who is present on pre-admission notice and with their help, have perused the record.
The petitioners claim their case and derive title from one Mst. Ghulam Fatima who sold the property to the petitioners on the strength of general power of attorney in favour of Syed Muqaddar Shah (Ex.P.W. 2/1) and the sale-deed dated 20.6.1990 (Ex.PW 2/2). It is very strange that the said Mst. Ghulam Fatima has not been produced in all these proceedings as the case is lingering on since 1990 till date. They also failed to produce the scribe and marginal witnesses of the general power of attorney Ex.P.W.2/1. Neither they have shown any reason that the executant is dead or incapable of giving evidence or her attendance cannot be procured. From the entire evidence on the record, it is nowhere proved that Mst. Ghulam Fatima had executed the alleged power of attorney Ex.PW 2/1 in favour of Syed Muqadar Shah instead the petitioners have produced other witness who even does not know the said Mst. Ghulam Fatima. One fact is very astonishing that according to Syed Muqadar Shah, Mushtaq Hassan had purchased the said property from Ghulam Fatima but neither Mushtaq Hassan has been examined nor any sale consideration has been proved. It is very strange that at the last moment i.e. after fifteen years of the suit, now counsel for the petitioners wants to withdraw the suit with permission to file a fresh suit or to amend his plaint to include these persons who have not been made party for the last fifteen years. This is just to prolong the agonies of the respondents for no good ground as sufficient time has elapsed and to allow the petitioners/plaintiffs at this stage either for withdrawal of the suit or amendment of the plaint would be abuse of law and nothing but to prolong the agonies of the parties. The deed is nothing but an agreement to sell for which the plaintiffs can file suit for specific performance. The respondents are in possession of the suit property right from 1960 and their title is fully supported by the record and valid documents.
In this background of the case, as the revision petition has got no legal force, the same is hereby dismissed in limine.
(M.A.R.) Revision dismissed
PLJ 2006 Peshawar 65 (DB)
Present: Shah Jehan Khan and Fazl-ur-Rehman Khan, JJ.
DILAWAR SHAH ROGHANI, EX-DIRECTOR (LEGAL) PROVINCIAL URBAN DEVELOPMENT BOARD N.W.F.P., PESHAWAR--Petitioner
versus
N.W.F.P. through Secretary Works and Services Department Government of N.W.F.P., Peshawar and 2 others--Respondents
W.P. No. 1277 of 2001, decided on 4.10.2005.
(i) Constitution of Pakistan, 1973--
----Art. 199--Punjab Urban Development Board Service Rules, 1979--R. 31--Petitioners retired from service as Legal Director Development--Board approved a Scheme for Pension, Provident Fund and Gratuity w.e.f. 17.7.2001--Effect be given to the scheme from the meeting that benefits be given to petitioners--Validity--No provision for Pension for Employees of Board, nor such scheme was approved by Board in its meetings, but there is a provision contained in R. 31 of mentioned for grant of Gratuity and all petitions in piths and substances are a challenge to the Notification dated 5.9.2001 whereby R. 31 was omitted and a new Rule was substituted therein--New rule was substituted on 5.9.2001 but according to petitioners it should have been given effect from 27.6.2000 because new rule is more beneficial to them--Held: Their prayer is without any substance because it is an amendment in law, affecting rights/liabilities of the parties which shall be construed prospectively and not retrospectively--Further held: Rules have been framed under the NWFP Ordinance (IV of 1978) but there was nothing to show that Ordinance has authorised the subordinate legislature either to frame rules or to amend the same with retrospective effect--Writ petitions dismissed in circumstances. [Pp. 67, 69 & 70] A, B, E & F
(ii) Interpretation of Statutes--
----In absence of either express or implied provision to the contrary, a Statute affecting rights/liabilities of the parties shall be construed prospectively and not restrospectively--Held: Principles which regulate the interpretation of a statute, must be taken to regulate the interpretation of the rules as well. [Pp. 69 & 70] C & D
"Understanding States Canons of Construction" by S.M. Zafar published by brite Book, Lahore at page 781, 1992 SCMR 1652, PLD 2005 Lahore 596 and PLD 1967 Karachi, 184 relied. 1992 SCMR 1652, PLD 2005 Lahore 596 and PLD 1967 Karachi 184
Mr. M. Sardar Khan, Advocate for Petitioner.
Mr. Salahuddin Khattak, Advocate and Mr. Obaidullah Anwar, A.A.G. for Respondents.
Date of hearing : 20.9.2005.
Judgment
Fazl-ur-Rehman Khan, J.--Writ-Petitions No. 1277/2001, No. 1572/2001, No. 1155/2002 and No. 1229/2002 are proposed to be disposed of by this common judgment as a common question of law is involved therein.
The brief facts, giving rise to these writ-petitions are that petitioner Dilawar Shah Roghani in Writ-Petition No. 1277/2001 joined the service of Provincial Urban Development Board, Peshawar (Respondent No. 2 and hereinafter referred to as the "Board") on 15.7.1975 and after rendering 26 years service, retired as Legal Director on 20.1.2001, whereas Mahasal Khan, Petitioner in Writ-Petition No. 1572/2001 joined the services of the Board on 15.11.1976 and after rendering 23 years of service, stood retired as Deputy Director on 20.1.2000. Similarly, Mian Gul, Petitioner in Writ-Petition No. 1155/2002 joined the Board on 1.9.1975 and stood retired as Director (Grade-20) on 20.6.1998 while Fakhre Alam, Petitioner in Writ-Petition No. 1229/2002 was initially appointed as Family Planning Supervisor on 3.7.1965 but later on, joined the services of the Board as Administrator (Grade-17) and stood retired in the same grade on 11.2.1999.
According to the petitioners, on the persistent demands of the employees of the Board for the creation of a Pension/Retirement Package, the Board in its 34th and 36th meetings held on 26.7.2000 and 17.7.2001 respectively, approved a Scheme for Pension, Provident Fund and Gratuity but the same was given effect from 17.7.2001 instead of the date, the Scheme was approved. The petitioners, therefore, have prayed that on acceptance of these writ-petitions, this Court may be pleased to:
(i) declare the date (i.e. 17.7.2001) of implementation of the retirement package scheme to be illegal, without lawful authority and of no legal effect; and
(ii) direct the respondents to give effect to the said scheme from the 34th Board-in-Council meeting dated 27.6.2000 and release Gratuity and other benefits to the petitioners accordingly.
"Gratuity.--
Gratuity shall be admissible in lieu of termination of service at the rate of one month's pay per year of employment calculated at the average of the last 12 months pay drawn after completing a minimum service of 10 years with Board/L.A.A., provided that the termination is not owning to mis-conduct. Provided further that where the services of an employee are terminated for reasons other than misconduct before his completion of 10 years service the gratuity admissible shall be 20 days wages calculated on the basis of the wages admissible to him in the last month of service for every complete year of service or any part thereof in excess of 5 months."
(i) The following number of gratuities shall be paid to the employees on their separation from PUDB either in case of attaining the age of superannuation, completion of service, early retirement, disability or death provided that the separation is not owing to misconduct:--
Gratuity
No. of completed No. of gratuities
Years of Service.
1 1
2 2
3 3
4 4
5 5
6 8
7 11
8 14
9 17
10 20
11 24
12 28
13 32
14 36
15 40
16 45
17 50
18 55
19 60
20 65
21 71
22 77
23 83
24 89
25 95
26 102
27 109
28 116
29 123
30 & above 130"
The new rule was substituted on 5.9.2001 but as per Dilawar Shah Roghani, Petitioner, this rule should have been given effect from 27.6.2000, while according to the other three petitioners, from 4.3.1989 because the new rule is for more beneficial to them. However, their prayer is without any substance because it is an amendment in law, affecting rights/liabilities of the parties and it is well settle principle of Interpretation of Statutes that in the absence of either express or implied provision to the contrary, a Statute affecting rights/liabilities of the parties shall be construed prospectively and not retrospectively.
In support of his argument, Mr. M. Sardar Khan, Advocate, the learned counsel for petitioner Dilawar Shah Roghani, that the impugned Notification will operate retrospectively from the date chosen by the petitioners, has placed reliance on (i) 1992 SCMR 1652, (ii) 1997 SCMR 1244, (iii) PLD 2001 SC 370 and (iv) PLD 2005 Peshawar 5 but the authorities quoted at S. Nos. (ii) to (iv) are not relevant to the issue. However, the principle laid down in the authority quoted at S. No. (i) supports the foregoing well settled principle of interpretation of statutes, vide Para-5 above, wherein their Lordships of a Full Bench of the Hon'ble Supreme Court of Pakistan has observed that:--
"It seems to be well settled proposition of law that a Notification, which purports to impair an existing or vested right or imposes a new liability or obligation, cannot operate retrospectively in the absence of legal sanction but the converse i.e. a Notification which confirms benefit cannot operate retrospectively does not seem to be correct proposition of law."
In support of his argument that the impugned notification is to be given prospective effect, the learned Additional Advocate-General has placed reliance on (i) PLD 2001 Lahore 506, (ii) 2002 SCMR 772, (iii) 2000 SCMR 1297, (iv) PLD 2005 Lahore 596 and 607, and (v) 2003 CLC 319, but out of these authorities, the only relevant authority is PLD 2005 Lahore 596, wherein his Lordship of a Single Bench of the Lahore High Court has held that, "a sub-ordinate legislature like a Notification cannot operate retrospectively but from the date of its issuance", while the rest of the authorities have no relevance to the issue.
As already noted, the impugned notification has amended the "Rules" by substituting Rule-31 thereof. It may be mentioned here that the principles, which regulate the interpretation of a statute, must be taken to regulate the interpretation of the rules as well. In support, reference could be made to Page-781 of "UNDERSTANDING STATUTES - CANONS OF CONSTRUCTION" by S. M. Zafar, published by Brite Books, Lahore. As such, the principle of interpretation of Statutes, that a statute, which affects the rights/liabilities of the parties, in the absence of express or implied provision to the contrary, shall be read to have prospective effect and not retrospective, will be equally applicable to the interpretation of such rules but for retrospectivity of such rules, the legal sanction must be contained in the Act, under which the rules have been made and not in the latter.
In support of the above proposition, reliance is placed on the case of Commissioner of Income Tax vs. M/s. Adamjee Sons (PLD 1967 Karachi 184) wherein their Lordships of a Division Bench of the West Pakistan High Court, Karachi Bench has held that, "it is a settle principle of law that a subordinate delegate authority cannot make rules or issue notification under a Statute so as to give a retrospective effect to them unless the Statute itself grants such power". We respectfully agree with the foregoing dictum of their Lordships. In the present case, the Rules have been framed under the NWFP Urban Development Ordinance, 1978 (N.W.F.P. Ordinance-IV of 1978) but there is nothing therein to show that the Ordinance has authorized the subordinate legislature either to frame rules or amend the same with retrospective effect. The argument of the learned counsel for the petitioners is, therefore, without force.
Consequently, these writ-petitions fail and are hereby dismissed with costs.
(M.A.R.) Writ Petitions dismissed.
PLJ 2006 Peshawar 71
Present: Shahzad Akbar Khan, J.
ZAHEER IQBAL & 11 others--Petitioners
versus
SAEED IQBAL KHAN & 36 others--Respondents
C.R. Nos. 195 & 605 of 2003, decided on 15.11.2005.
N.W.F.P. Tenancy Act of 1950 (XXV of 1950)--
----S. 28--Civil Procedure Code (V of 1908), S. 115--O. VII, R. 11--Suit for declaration on based of occupancy right of tenancy--Rejection of plaint and first appeal dismissed--Assailed--Uncontroverted feature--At the time of coming into force of N.W.F.P. Tenancy Act, 1950 the petitioners were not recorded as occupancy tenants--Petitioners did not obtain any declaration of occupancy rights in terms of S. 83 of NWFP Tenancy Act--Petitioners or their forefathers cannot be deemed to have become owners by operation of law--Claim of ownership of land on ground of occupancy tenancy is dependent upon declaration envisaged by S. 83--Declaratory suit was not competent because as per law of limitation the declaratory suit is also required to be instituted within 6 years but entry in revenue record in names of the predecessors of the petitioners had disappeared since 1905--No infirmity or jurisdictional defect in concurrent findings of Courts below--Revision dismissed. [Pp. 73, 74 & 75] A, B, C & D
PLD 1962 (W.P). Peshawar 7; PLD 1997 SC 459.
Haji Ghulam Basit, Advocate for Petitioners.
Mr. Masood-ur-Rehman Awan, Advocate for Respondents.
Date of hearing : 15.11.2005.
Judgment
Zaheer Iqbal and 11 others have filed this civil revision petition calling in question the judgments and decrees dated 1.7.2003 and 15.2.2002 respectively passed by the learned Additional District Judge-I, Haripur and the learned Civil Judge, Ghazi. The rejection of the plaint under Order 7, Rule 11 C.P.C. handed down by the learned Civil Judge Ghazi was upheld by the learned Additional District Judge-I, Haripur.
The facts relevant to the disposal of this civil revision are that petitioners filed a civil suit for a declaration that on the ground of occupancy tenancy they have become full owners of the land detail fully incorporated in the heading of the plaint and that the entry in the revenue record in the names of respondents-defendants was illegal and ineffective upon the rights of the petitioners as the same was the result of collusion of respondents and illiteracy of the predecessors of the petitioners. Addedly permanent injunction and substitutedly possession was also sought.
As per averments of the plaint the forefathers of the petitioners were in possession of the suit land on the ground of occupancy tenancy and were considering themselves as the owners of the land. In such capacity the entry in the revenue record was recorded till the year 1904-05 in favor of the predecessors of the petitioners but subsequently the entry in the revenue record was changed to their disadvantage.
The suit was resisted by the respondents and written statement was filed. It appears that during the pendency of the suit respondents filed application for the rejection of the plaint being barred by the law of limitation in terms of clause (d) of Order 7, Rule 11 C.P.C. After hearing the arguments of the learned counsel for the parties the learned trial Judge formulated an opinion that the suit of the petitioners is not maintainable. The petitioners preferred an appeal against the judgment and decree of the learned trial Court. The appeal was heard by the learned Additional District Judge-I, Haripur but the same also could not earn any success and was dismissed on 1.7.2003.
The learned counsel appearing on behalf of the petitioners has raised and argued the contention that for sufficiently long time the forefathers of the petitioners remained in occupation of the suit land in capacity of the occupancy tenants and they were recorded so till the year 1904-05. He urged that subsequent to that the respondents entered into collusion with the revenue staff and made changes in the revenue papers. He contended that the petitioners have inherited the ownership of the suit land from their predecessors as they had earned the ownership of suit land in accordance with Section 83 of the NWFP Tenancy Act, 1950. He further contended that as the petitioners had filed the suit for declaration and permanent injunction, therefore, it was within the jurisdiction of the Civil Court and as such the rejection of the plaint was the result of misconception of law by the learned lower Court. The learned counsel also took the stance that the failure to comply with the conditions of Section 83 of the NWFP Tenancy Act, 1950 should not operate as a barricade in filing of civil suit.
On the other hand the learned counsel appearing on behalf of the respondents has vehemently opposed the instant revision petition and while controverting the arguments of the learned counsel for petitioners he raised a contention that in order to avail the benefit of Section 83 referred above the claimant party shall within three years after the commencement of the NWFP Tenancy Act, 1950 apply for a declaration and only when such declaration is granted such party shall be entitled to the benefit of Section 4 of the Act. He contended that admittedly declaration in terms of Section 83 of the NWFP Tenancy Act has not been obtained by the petitioners. Owing to its relevancy Section 83 of the NWFP Tenancy Act, 1950 is reproduced below:--
"83. Limitation for declaration of occupancy rights.--Notwithstanding the repeal of the Punjab Tenancy Act, 1887, as applicable to the North West Frontier by the North West Frontier Province Law and Justice Regulation, 1901 and Hazara Tenancy Regulation, 1881, Hazara Tenancy (Amendment) Regulation, 1904, any person, who but for this Act would have been entitled to be declared an occupancy tenant within the meaning of Section 5 of the Punjab Tenancy Act of 1887 as applicable to North West Frontier the North West Frontier Province Law and Justice Regulations, 1901, or Section 5 of Hazara Tenancy Regulation, 1887, shall within three years after the commencement of this Act apply for such declaration and on such declaration being granted, he shall be entitled to the benefit of Section 4 of this Act."
I have heard the arguments of the learned counsel for the parties and have extensively gone through the record.
It is an uncontroverted feature of the case that at the time of coming into force of the NWFP Tenancy Act, 1950 the petitioners were not recorded as occupancy tenants. It is also an admitted position that the petitioners have not obtained any declaration of their occupancy rights in terms of Section 83 of NWFP Tenancy Act, 1950. Thus the petitioners or for that matter their forefathers cannot be deemed to have become owners by operation of law. In other words the claim of ownership of land on the ground of occupancy tenancy is dependent upon the declaration envisaged by Section 83 referred above. Thus the instant suit though declaratory in its nature but in essence it is an endeavour to achieve the rights which emanate from Section 83 quoted above. A similar situation was dealt with in case of Akram and others petitioners vs. Zakiria Khan and others respondents reported as PLD 1962 (W.P) Peshawar page 7. The segment of the said judgment crucially relevant to the instant case is reproduced below:--
"7. It will be seen that Section 4 and 4-A of the North West Frontier Province Tenancy Act of 1950 will come into play only if a person is an occupancy tenant at the commencement of the Act, and satisfied the other conditions laid down in the sections. If he is not recorded as an occupancy tenant at the commencement of the Act, his case clearly seems to be governed by Section 83 of the Act, and in order to avail himself of the benefits conferred by Section 4 and 4-A of the Act, such a person shall have to obtain, in the first instance, a declaration of his occupancy rights, and until such time as such a declaration has been obtained, he cannot be deemed to have become the owner by the operation of Section 4 and 4-A of the Act. In the present case, it is an admitted position that the petitioner-plaintiffs were not recorded as occupancy tenants in the revenue records at the relevant time, and accordingly they cannot be deemed to have become owners by the operation of Section 4 and 4-A of the Act. Therefore, the relief claimed by them in the present suit is in effect a declaration of their occupancy rights in the land, and only when that declaration granted, can they claim a declaration of ownership. It seems to me, therefore, that this is not a suit for declaration of title which would be within the competence of a Court of general jurisdiction, but on the other hand, it is a suit the subject-matter of which is specifically dealt with in Section 83 of the North West Frontier Province Tenancy Act read with the proviso to Section 85 of the same Act".
It may be observed that the case of Misri was decided by this Court following the judgment rendered in the case of Akram. The judgment of this Court was reported in 1996 MLD 362 which was challenged before the Honourable Supreme Court and the Honourable Supreme Court dismissed the petition. The arguments of the learned counsel for the petitioners that the instant suit was for obtaining a declaration and permanent injunction was within the jurisdiction of a civil Court is also not tenable. Even a declaratory suit was not competent because as per law of limitation the declaratory suit is also required to be instituted within 6 years but the entry in the revenue record in the names of the predecessors of the petitioners had disappeared since 1905. Thus on such a dimension too the suit of the petitioners was not maintainable.
Proceeding on the above statements of facts and law I see no infirmity or any jurisdictional defect in the concurrent findings of the two Courts below. Both the judgments of the lower Courts are based on sound reasons and correct appreciation of law. Resultantly, this revision petition is dismissed with no orders as to costs.
(M.A.R.) Revision dismissed
PLJ 2006 Peshawar 75
Present: Salim Khan, J.
Mst. JUMA--Petitioner
versus
UMAR AKHTAR & others--Respondents
C.R. No. 58 of 2005, decided on 24.10.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Suit for declaration claiming inheritance and correct entries in revenue record--Dismissal of suit by trial Court as well as appellate Court--Assailed--Validity--Property in question was inheritance of deceased father of plaintiff, and mother as well as other sisters of the contesting parties were alive at time of institution of suit--No evidence of any waiver/relinquishment of rights of petitioner with respect to suit property in favour of defendant was available--Respondent had been shown as the sole heir of deceased in revenue record--Revenue authorities did not enquire and ascertain about existence and identity of plaintiff and her mother and sisters--Petitioner had become owner of the suit property to extent of share on the death of her father and non-entry in the revenue record could not come into her way for claiming the rights--Alleged deed had not been properly exhibited and proved on record--But the document even if proved genuine, would have been of no use to respondent--Document in question had not only declared an insane person entitled to whole property of a living person, in order to protect the future of that insane person by excluding ladies of the family against the principles and intent of Shariah, but has also declared a non-existing and non living person as co-sharer with him, by excluding the wife and other sisters of that person--Lower Courts had erred in properly evaluating and appreciating the evidence on record and failed to correctly apply the law of inheritance--Revision accepted. [Pp. 78, 79, 80 & 81] A, B, D, E, F, H & I
2005 SCMR 1217; 2005 SCMR 1690; PLJ 2005 SC 1163.
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Entitlement--A legal heir becomes entitle to ownership in property of deceased person, according to his share, immediately on the death of such person--Devolution of right of inheritance is not contingent upon any entry in revenue record or upon any other document, oral statements or any other commission or omission by any person. [P. 78] C
(iii) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Possession of co-sharer--Possession of one co-sharer is the possession of all co-sharers over a possession, and one co-sharer by his physical possession over a property, cannot deprive the other co-sharers of their right of ownership and possession over property in question. [P. 79] G
Mr. S.M. Attique Shah, Advocate for Petitioner.
Mr. Fida Gul, Advocate for Respondents.
Date of hearing : 10.10.2005.
Judgment
The admitted facts in this case are that Mst. Juma daughter of Kachkol is the real sister of Umar Akhtar, Respondent No. 1, that the suit property was the inheritance of Kachkol, resident of Kalpani, Tehsil Daggar, District Buner, and that Mst. Juma and Umar Akthar were not the only daughter and son respectively of Kachkol, but the mother and other sisters of the contesting parties were alive and had submitted affidavits in favour of Respondent No. 1.
The contested points are that whether the suit property was gifted to Umar Akhtar by Kachkol in his life time, or a will was made in favour of Respondent No. 1 by his father. An agreement Deed No. 754 dated 10.12.1954 was referred to by Umar Akhtar defendant and his witnesses. The original of that document was not produced at the time of evidence and that document has not been exhibited by any of the parties. The said document is not in favour of one or the other party. In fact that was a document in favour of Ali Said, the insane son of Kachkol, who later on died, in which it was mentioned that Ali Said would be the owner of the total movable and immovable property of Kachkol, but if an other son was born to Kachkol, that other son would equally share the property with Ali Said, and the other heirs would have no right whatsoever to the suit property. The reason for writing the Wasiyyat Nama or Iqrar Nama (the scribe and Kachkol were not sure about the nature of the said document) was shown to be that Ali Said was an insane person and there was no other male son in the house of Kachkol, therefore, he wanted to save Ali Said from future injustice. It is said that Ali Said died later on, and Umar Akhtar was born, therefore, he had become the owner of the total property. On the basis of the said document, Defendant No. 1 claimed ouster of the other heirs of Kachkol. The evidence of the defendants is to the effect also that the suit property was transferred to Defendant No. 1 by his father in his life time. The petitioner/plaintiff in her plaint claimed that she was the daughter of Kachkol and was entitled to her share in the suit property while the defendants were not entitled to deprive her of shari share, that the revenue record was incorrect and was ineffective against the rights of the plaintiff.
The suit of the plaintiff was dismissed vide judgment and decree dated 10.1.2002 by the learned Civil Judge/Alaaqa Qazi-II, Daggar in District Buner. Civil Appeal No. 25/13 instituted on 18.1.2002 against the judgment and decree in Suit No. 7/1 instituted on 6.2.1996, decided as aforesaid, was also dismissed on 24.9.2004. Hence, the present Civil Revision. S.M. Atique Shah, Advocate, for the petitioner and Mr. Fida Gul, Advocate, for the respondents, argued their case, I heard them and perused the record.
The learned counsel for the petitioner contended that no document of gift by Kachkol in favour of Umar Akthar is available, that Kachkol died in the year 1969, that the revenue record was prepared in the year 1977-78, Umar Akhtar was wrongly recorded as the sole heir of Kachkol to the exclusion of the petitioner, but the revenue record could not extinguish the rights of the entitled parties. He further contended that inheritance mutation of Kachkol was never recorded in favour of all the heirs and such heirs had never gifted the property to Umar Akhtar Respondent No. 1/defendant. He was also of the view that neither limitation nor estoppel could be claimed against Mst. Juma, who was one of the legal heirs of Kachkol, and that the entry in favour of Umar Akthar in the revenue record could not deprive Mst. Juma from her legal and shari share.
The learned counsel for the respondents submitted that the suit property has been in possession of Respondent No.1/Defendant No. 1 from the time of death of his father till now, that Mst. Juma or any other legal heir of Kachkol had never claimed any share in the property or share of its produce from Defendant No. 1, that the husband of the plaintiff was the cousin of Defendant No. 1, and that it was only due to other cases between the husband of the plaintiff and Umar Akhtar that relations of the plaintiff and defendant No. 1 because strained, and the plaintiff claimed her share in the suit property through the present limitation.
There is no dispute that the suit property is the inheritance of Kachkol, deceased father of the plaintiff/petitioner, Defendant No. 1 Respondent No. 1, and that the mother as well as other sisters of the contesting parties were alive at the time of institution of the suit. In normal circumstances, the plaintiff, her mother and other sisters and Defendant No. 1/Respondent No. 1 would have inherited the property from Kachkol. The mother and other sisters were necessary parties to the present case, but they have already submitted their affidavits in favour of Defendant No. 1. There is no affidavit or any other admission by the plaintiff in favour of Defendant No. 1. No other evidence of any waiver/relinquishment of rights of the plaintiff/petitioner with respect to the suit property in favour of Defendant No. 1 is available. The name of the plaintiff is not mentioned in the revenue record from the very start after the death of Kachkol.
It was the responsibility of the revenue authorities to correctly record the names of legal heirs of the deceased land owner. For the purposes of correct assessment, liability and recovery of land revenue, they were bound to ascertain such correct names through reliable evidence. Non-entry of the name of any person entitled to inheritance does not disentitle him for such inheritance and does not debar him from claiming rights in the property on the basis of inheritance. Umar Akhtar has been shown as the sole heir of Kachkol in the revenue record. It means that the revenue authorities did not enquire and ascertain about the existence and identity of the plaintiff, the mother and sisters of the plaintiff, besides Umar Akhtar Defendant No. 1. A legal heir becomes entitled to ownership in a property of a deceased person, according to his share, immediately on the death of such person. Devolution of right of inheritance is not contingent upon any entry in the Revenue Record or upon any other document, oral statements or any other commission or omission by any person. Mst. Juma had become the owner of the suit property to the extent of her share, on the death of Kachkol in 1969 and non-entry of her name in the revenue record could not come into her way for claiming the rights, as aforesaid.
The alleged Deed No. 754 dated 10.12.1954 has not been properly exhibited and proved on record. But that document, even if proved genuine, would have been of no use to the defendant/Respondent No. 1 because it was dated 10.12.1954 when Defendant No. 1 was not in existence. A document written at a time cannot entitle a non-existence and non-living person and cannot disentitle an existing and living person in order to favour a person who may or may not be born in future. The document in question has not only declared an insane person entitled to the whole property of a living person, in order to protect the future of that insane person by excluding the female persons of the family against the principles and intent of Shariah, but has also declared a non-existing and non-living person as co-sharer with him, by excluding the wife and other sisters of that person.
In the words of the judgment reported as Muhammad Zubair and others versus Muhammad Sharif (2005 SCMR 1217), "the right of succession would not be defeated by the law of limitation or the principle of res judicata as no law or judgment can override the law of Shariah, which is a superior law." According to the law of Shariah, the succession opened on the death of owner of a property and his legal heirs became entitled to their shares in the property immediately and without any condition. A document, which is neither properly exhibited nor proved by cogent evidence and which was allegedly scribed long before the birth of a person claiming rights under the said document, to the exclusion of others, cannot override the right established by the Shari Law of Inheritance. The relationship between the original plaintiff and the defendant/Respondent No. 1 is not only proved, but is also not denied. It was the duty and responsibility of the defendant/Respondent No. 1 to categorically prove that the plaintiff had ever, within intention, either waived or relinquished her rights in the suit property to the extent of her share. It is, by now, a settled principle that the possession of one co-sharer is the possession of all co-sharers over a possession and one co-sharer by his physical possession over a property, cannot deprive the other co-sharers of their rights of ownership and possession over the said property. The plaintiff had become owner of the suit property at the time of her father, who being the male member of the family, and the Respondent/Defendant No. 1 was in possession of the suit property not only for himself, but also for the plaintiff and other female members of the family.
In the words of the judgment reported as Muhammad Idress Versus Mst. Zeenat Bibi (2005 SCMR 1690), "the Courts cannot remain oblivious regarding the erosion of moral values and the conduct of the petitioner is worth quoting as a classic example in this regard." As per precedents, the female members of the family are deprived of their rights of inheritance by pretext, devices, disguises, stresses, strains, and pressures. On one side, the plaintiff was shown to had lost her rights when the Defendant/respondent No. 1 was not yet born, or at the time of death of her father, when there was no record or evidence in favour of the Defendant/Respondent No. 1, who has not prove the transfer of the property to him by his father during his life time. On the other side, the Respondent No. 1 claims right on the basis of an unproved document which was allegedly scribed before his birth, as well as the wrong entries in the revenue record. It has been brought on record that Kachkol died in 1969 while the settlement proceedings were conducted and finalized after that, and it was in 1977-78 for the first time that the suit property was entered in the name of the Defendant/Respondent No. 1 without any reference to the existence or otherwise of the plaintiff, her mother and sisters. The other heirs of Kachkol have been ignored without hearing them at the time of preparation of the revenue record in favour of the Defendant/Respondent No. 1.
It has been held in the judgment cited as Muhammad Iqbal and 5 others Versus Allah Basaya and 18 others (PLJ 2005 SC 1163) that "the right of a female, recognized in Shariah, cannot be denied on the basis of oral assertion of surrender of such right by a female in favour of male member of the family and in any case, there is no concept of estoppel to deprive a person from his right in the inheritance in Islam. The respondents have not been successful in showing us that Mst. Allah Wasai had surrendered her right in the property in favour of her brothers in lawful manner or the suit involving right of inheritance could be dismissed on the ground of estoppel or limitation." The suit of Mst. Juma in this case also could not be dismissed on the ground of estoppel, limitation, un proved document allegedly scribed before the birth of the brother, the wrong entries in the revenue record without an attempt by the revenue authorities to correctly record them, the alleged Will of the deceased father or possession of male co-sharer against the female co-shares.
The learned Court of first instance and the learned Appellate Court have erred in properly evaluating and appreciating the evidence on record and have failed to correctly apply the law of inheritance to the circumstances of the present case. The petitioner, being the daughter of Kachkol, is entitled to her shari share of inheritance in the suit property alongwith respondent No. 1, and mother as well as sisters of the contesting parties.
I therefore, accept the present Civil Revision, set said the impugned judgments and decrees granted by the learned Original Court and the learned Appellate Court, and grant the decree as prayed for by the present petitioner in her favour alongwith the respondents/defendants to the extent of her shari share in the disputed properties left by her father as his inheritance. Parties are, however, left to bear their own costs throughout.
(M.A.R.) Revision accepted.
PLJ 2006 Peshawar 81
Present: Ijaz-ul-Hassan Khan, J.
DILBAR KHAN and others--Petitioners
versus
TALIZAR KHAN and others--Respondents
Civil Revision No. 616 of 1999, decided on 28.11.2005.
(i) Administration of Justice--
----Court of law is to decide a case keeping in view the rights and liabilities of the parties in light of record on file and not merely to dispose of a case in a hurry. [P. 84] B
(ii) Administration of Justice--
----Courts, being the ultimate protectors rights of the litigants, had responsibility to ensure that valuable rights of such litigants were not destroyed by their unintentional faults and innocent mistakes. [P. 84] C
(iii) Civil Procedure Code, 1908 (V of 1908)--
----S. 115, O. XLI R. 31--Suit for declaration decreed by Courts below--Assailed--Validity--Matter had been dealt with in a cursory manner without application of independent mind, which was resulted in manifest injustice--Courts below failed to appreciate and assess the evidence properly and decide the case in its true perspective--Defendant being legal heirs should have been brought on file with direction to the petitioners to file an amended plaint--Omission on part of trial Court to do so, amount to refusal to exercise its jurisdiction--Courts would have appointed a commission for finding out the real owners from the admitted owners of the rest of the 10 paisa dafter--Case remanded. [P. 84] E, F, G & H
(iv) Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, R. 23--Remand of case could be ordered where it become absolutely necessary and inevitable in view of insufficiency or of inconclusive evidence on record--Held: Remand of case on technical reasons could not be appreciated when Appellate Court could dispose of a case--Appellate Court should refrain from remanding case, if evidence on record was not sufficient--But that too was to be avoided particularly when the parties had full of opportunities of presenting their evidence. [P. 84] A
(v) Civil Procedure Code, 1908 (V of 1908)--
----O. I, R. 9--Non-joinder or mis-joinder of party--Effect--No suit could be dismissed on account of non-joinder or mis-joinder of the parties under Order 1, Rule 9 C.P.C. and Court could not proceed further until the necessary parties were impleaded. [P. 84] E
Mr. Abdul Samad Khan, Advocate for Petitioners.
Mr. Muhammad Aman Khan, Advocate for Respondents.
Date of hearing : 7.11.2005.
Judgment
Shortly narrated the facts leading to the filing of instant civil revision are, that Dilbar Khan and others petitioners instituted suit on or about 21.7.1996 in the Court of Civil Judge Wari, Dir against Talizar Khan and others, respondents for declaration, possession and redemption of two paisa dafter out of 12 paisa dafter of kotkai Illaqa Wari Khel, Dir, described in the plaint as eight plots mentioned by boundaries. The petitioner claimed that first four plots were mortgaged since last 50/51 years for Rs. 180/- to Respondents 1 to 6 and the remaining plots 5 to 8 were given to Respondent No. 8 on `batai' since the last 50/52 years.
The suit was contested by 14 respondents out of 33 respondents on various grounds, legal as well as factual. It was pleaded that necessary parties were not impleaded and that Respondent No. 8 was dead, therefore, the suit was not competent. One of the respondents namely Nadir Khan confessed judgment and stated that he was prepared to return the share in his possession as the property belonged to the petitioners. Necessary issues were framed and after recording such evidence as the parties wished to adduce, learned trial Judge dismissed the suit vide judgment and decree dated 2.12.1997. An appeal was preferred thereagainst, which was also dismissed by Additional District Judge, Dir Bala at Wari, vide judgment dated 11.10.1999.
The petitioners feeling aggrieved, have filed the present Civil revision assailing the concurrent findings of the Courts below.
Mr. Abdul Samad Khan, Advocate for the petitioners, while challenging the impugned judgments and decrees of the Courts below, attempted to argue that the material on record has not been appreciated and evaluated in its true perspective, which has resulted in manifest injustice and that a local commission should have been appointed in the case, to clinch the matter and resolve the controversy between the parties. The learned counsel also contended that no suit can be dismissed on account of non-joinder or mis-joinder of the parties under Order I, Rule 9 CPC and the Court could not proceed further till the necessary parties were impleaded. The learned counsel further maintained that Respondent No. 8 Muhammad Jan being dead, the legal representatives of the deceased should have been brought on record and the petitioners should have been directed to file an amended plaint. In the last limb of arguments, the learned counsel urged that the impugned judgment of the appellate court is not in consonance with the provision of Order XLI, Rule 31 CPC and as such, cannot be allowed to remain intact and the matter be remanded to the trial Court for re-decision. To substantiate the contentions, reliance was placed on PLD 1973 Quetta 24 and 1989 SCMR 1132.
Mr. Muhammad Aman Khan, Advocate for the respondents, on the contrary, submitted that both the Courts below he embarked upon all the issues involved in the case, appreciated documentary as well as oral evidence in its true perspective and reached to the proper conclusion to which no exception can be taken. The findings recorded by both the Courts are not only in consonance with the record of the case, but also in accordance with law on the subject. He maintained that learned counsel for the petitioners could not point out any grave legal infirmity in the impugned judgments justifying to unsettle the concurrent findings of fact arrived at by both the Courts below. In this regard reliance was placed on 1975 SCMR 311, 1979 SCMR 630 and 2000 SCMR 1008.
I have heard the arguments of the learned counsel for the parties at considerable length in the light of the material on record.
Remand of case can be ordered where it becomes absolutely necessary and inevitable in view of insufficiency or of inconclusive evidence on record. Remand of the case on technical reasons, cannot be appreciated when the appellate Court could itself dispose of a case, it should refrain from remanding the case, unless it feels that the evidence on record was not sufficient. But this too is to be avoided particularly when the parties have had full of opportunities of presenting their evidence.
The Court of law is to decide a case keeping in view the rights and liabilities of the parties in the light of the record on file, and not merely to dispose of a case in a hurry. The Courts, being the ultimate protectors of the rights of the litigants, have the responsibility to ensure that the valuable rights of such litigants are not destroyed by their unintentional faults and innocent mistakes.
In the instant case, I find that the matter has been dealt with in a cursory manner without application of independent mind, which has resulted in manifest injustice. Both the Courts below have failed to appreciate and assess the evidence properly and decide the case in its true perspective. Needless to emphasize that no suit can be dismissed on account of non-joinder or mis-joinder of the parties under Order 1, Rule 9 CPC and the Court could not proceed further until the necessary parties were impleaded. Again, Muhammad Jan Respondent No. 8 being dead, his legal heirs should have been brought on file with direction to the petitioners to file an amended plaint. The omission on the part of the trial Court to do so, amounts to refusal to exercise its jurisdiction. Learned counsel for the petitioners contended with justification that one of the respondents Nadir Khan admitted the claim of the petitioners but his statement was put at shelf without any valid reasons. The property consisted of 12 paisa dafter out of which 2 paisa dafter was claimed the area extends over 2 to 3 miles as, it was necessary to examine the owners of the remaining 10 shares. The Courts should have appointed a commission for finding out the real owners from the admitted owners of the rest of the 10 paisa dafter. The objection raised on behalf of the petitioners regarding non-compliance of the provision of Order XLI Rule 31 CPC is also substantial. The judgment of the appellate Court has been recorded in a mechanical manner without application of judicial mind and as such, is not sustainable.
In the result and for the foregoing reasons, I accept the revision petition, set aside the impugned judgments and decrees of the Courts below and remand the case to the trial Court for decision afresh after impleading necessary parties and providing a fair chance to the parties to produce evidence in support of their respective contentions. For this purpose, the parties and their counsel are directed to appear before the trial Court on 5.12.2005 and cooperate with the trial Court so that the matter may be finalized at the earliest. No order as to costs.
(M.A.R.) Case remanded.
PLJ 2006 Peshawar 85
Present: Ijaz-ul-Hassan Khan, J.
KHAIRULLAH--Petitioner
versus
FAZAL MANAN and another--Respondents
Civil Revision No. 152 of 2005, decided on 28.10.2005.
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Civil Procedure Code, (V of 1908), S. 115--Decree was passed in favour of respondent and affirmed in Appellate Court--Assailed--Validity--Order of Civil Judge through which he consigned to record the suit was treated by lower Courts as preliminary decree--On basis of Civil Court both Courts passed the final decree--Lower Courts suffered from grave illegality resulting in manifest injustice--Local Commission admitted that in Sulah Nama as well as order of Civil Judge, there was no mention of respective share of the parties--Courts below had displayed great magnanimity towards respondent and had committed material irregularity--Award of mediator could not be changed without consent of the parties on the pretext of final decree--Courts below had exercised jurisdiction not so vested in them under the law and thus judgments were liable to be set aside--Revision accepted. [Pp. 87 & 88] A, B, C, D & E
Mr. Qaisar Rashid, Advocate for Petitioner.
Sahibzada Asad Ullah, Advocate for Respondents.
Date of hearing : 21.10.2005.
Judgment
Khairullah petitioner filed instant revision petition to call in question the judgment and decree dated 19.10.2004 of the learned District Judge/Zilla Qazi Malakand at Batkhela, affirming the judgment and decree dated 14.7.2003 of learned Senior Civil Judge/Aala Illaqa Qazi Malakand at Batkhela, confirming the report commission and granting a final decree in pursuance thereof.
Shortly put the facts are, that Fazle Manan, Respondent No. 1 herein, filed a declaratory suit on 15.12.1998 against the petitioner and Muhammad Shafiq, Respondent No. 2 herein, in respect of land situated at Dheri Jolagram, Malakand Agency, known as `Nayan Seria' in Wand Turlanday Baba, for a share to the extent of 11.1/3 pachas. The petitioner as well as Respondent No. 2 filed their respective written statements. On 14.3.2000, Respondent No. 1 filed an amended declaratory suit enhancing his alleged share from 11.1/3 pachas to 14.2/3 pachas, to which the petitioner and Respondent No. 2 filed their respective written statements. With the consent of the parties, the matter was referred for resolution to Muawen Qazi, who brought about the resolution through his Sulah Nama dated 2.6.2001. Learned Civil Judge, Malakand at Batkhela, consigned to record the suit of Respondent No. 1 in terms of Sulah Nama/agreement on 3.10.2001. Vide an application dated 20.2.2002, Respondent No. 1 approached the Court of Senior Civil Judge/Aala Illaqa Qazi Malakand at Batkhela, for the grant of final decree, wherein the alleged that 14.2/3 Pachas had been decreed in his favour through Sulah Nama dated 2.6.2001. Senior Civil Judge appointed a local commission in the matter whose appointment was challenged by the petitioner in a revision petition before the District Judge/Zilla Qazi Malakand at Batkhela, which was dismissed. The local commission gave his report to which the petitioner filed his objection and the statement of the local commission was recorded before the trial Court. Finally, Senior Civil Judge, seized of the mater, passed his judgment and decree dated 14.7.2003 in favour of Respondent No. 1, which was maintained in appeal by District Judge. Feeling aggrieved from the judgments and decrees of both the Courts below, the petitioner has filed instant revision petition, which is before me for consideration.
Mr. Qaiser Rashid, Advocate of the petitioner vehemently contended that whereas Respondent No. 1 filed a suit for specific share of 14.2/3 pachas piece of land, Muawen Qazi in his Sulah Nama/agreement never gave any specific share to either of the party to the suit and this fact was also appreciated in the report of the local commission as well but still the lower Court gave a final decree in favour of Respondent No. 1 ignoring the most important and vital aspect of the case. He reiterated that even the local commission in his report has admitted the fact that in the Sulah Nama of the Muawen Qazi as well as the order dated 3.10.2001 of the Civil Judge, there is no mention of the respective shares of the parties and as to which party to the suit has to get how much share as mentioned in the commission's report. The learned counsel added that still in compliance with the order of the Senior Civil Judge, the local commission went ahead with the preparation of his report. The report is illegal as the local commission has traveled beyond duty assigned to him as he has in the process dragged so many outsides in the controversy and have allocated various shares to them for which he was not directed by the trial Court. The learned counsel lastly submitted that the award of mediator cannot be changed without any consent of the parties concerned on the pretext of final decree.
Sahibzada Asadullah, Advocate for the respondents, on the contrary, maintained that the Courts below have taken a lawful view emerging out of the file, no part of which has been misread or non-read, without it, no interference in revisional jurisdiction of this Court is permissible under law. The learned counsel submitted that the report commission has been taken into consideration and made basis of the impugned judgment and decree for valid reasons and the revision petition in hand has no force and merits outright dismissal. To substantiate the arguments, reliance was placed on Mst. Amna petitioner. vs. Muhammad Iqbal respondent (1990 CLC 1492) and Muhammad Itbar Khan petitioner vs. Fazal Hussain and 3 others respondents (PLD 1990 Lahore 116).
The contentions put forth on behalf of the parties' learned counsel have been considered in the light of the record of the case and the impugned judgments have been perused carefully.
It is evident from the record that the Sulah Nama/agreement dated 2.6.2001, reached between the parties through Muawen Qazi Malakand, can be termed as the specific partition of the suit property and the learned Civil Judge Malakand, accordingly consigned to record the suit in terms of the said Sulah Nama without identifying the respective shares of the parties and without passing any decree as such. But the said order of the learned Civil Judge vide which he consigned to record the suit of Respondent No. 1 has been treated by both the learned lower Courts as preliminary decree and in the process also the application for the grant of final decree. On the basis of the said order of the Civil Judge, both the learned lower Courts passed the final decrees. Such being the position, the judgments and decrees of both the lower Courts suffer from grave illegality resulting in manifest injustice. It may be pointed out here that the local commissioner in his report has frankly and candidly admitted the fact that in the Sulah Nama Muawen Qazi as well as the order dated 3.10.2001 of the learned Civil Judge, there is no mention of the respective share of the parties and as to which party to the suit has to get how much share as mentioned in the commission's report. Still in compliance with the order of the Senior Civil Judge, the local commission went ahead with the preparation of his report. It has been contended with justification that the commission has traveled beyond duty assigned to him. Report is illegal. Whereas the report of Muawen Qazi Malakand is totally silent about the specific share of the parties resulting in the order dated 3.10.2001 of the Civil Judge. Both the Courts below have displayed great magnanimity towards Respondent No. 1 and thus have committed material irregularity. Mediation is not the decision of the case on merits. It is the result of agreement between the parties and thus the parties are bound by such mediation. When mediation is filed before the Court, the Court invites objections of the parties before it makes the same as rule of the Court and if any objection is not filed and the mediation is accepted by the Court un-objected, then it is not questionable through an appeal or revision. The award of mediator cannot be changed without the consent of the parties concerned, on the pretext of final decree. Both the Courts below have exercised jurisdiction not so vested in them under the law and thus the judgments of the Courts below are liable to be set aside.
In the result and for the foregoing reasons, on acceptance of this revision petition, both the judgments and decrees of the Courts below are set aside and the application of Respondent No. 1 for the grant of final decree is dismissed. The parties are left to bear their own costs.
(M.A.R.) Revision accepted
PLJ 2006 Peshawar 88
Present: Ijaz-ul-Hassan Khan, J.
AQEEL and another--Petitioners
versus
Mst. ALIA BIBI & others--Respondents
C.R. No. 1491 of 2004, decided on 28.11.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Scope and limit--Findings on question of fact or law recorded by competent Court of jurisdiction could not be interfered in revisional jurisdiction unless findings suffer from jurisdictional defect, illegality or material irregularity--Jurisdiction of High Court to interfere with concurrent finding of fact in revisional jurisdiction under S. 115 CPC is limited. [P. 92] C
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--High Court in exercise of its jurisdiction u/S. 115 C.P.C. can interfere with orders of subordinate Courts on grounds, that Courts below assumed jurisdiction which did not vest in it, or had failed to exercise jurisdiction vested in it by law or that Court below had acted with material irregularity affecting its jurisdiction. [P. 92] D
(iii) Civil Procedure Code, 1908 (V of 1908)--
----O. XLI R. 31--Provisions of controversy--Essentials--It is not the requirement of law, as under Order XLI, Rule 31 CPC Appellate Court is to state the points for determination, give its decision and reasons for such decision be also mentioned--If Appellate Court chalked out a point of controversy and gave its findings, then Appellate Court would be said to have given its judgment in accordance with the provision of Order XLI, Rule 31 C.P.C. [P. 93] E
1991 SCMR 1868 and 2000 CLC 709.
(iv) Civil Procedure Code, 1908 (V of 1908)--
----O. XIV, R. 1--Framing of issue--Method of--Each material proposition should be reflected in distinct issue, point raised in one issue should not be stretched in other issue. [P. 93] F
1995 MLD 316.
(v) Civil Procedure Code, 1908 (V of 1908)--
----O. XIV, R. 2--O.XX, R. 5 & O.XVIII, R. 1--Object of framing issues--Object of framing issues was to ascertain real issue between parties by narrowing down the area of conflict and determine between the parties where parties differ coupled with fact that framing of issues is one of the most important stage of trial. [P. 93] H
(vi) Specific Relief Act, 1877 (I of 1877)--
----Ss. 8 & 42--Civil Procedure Code, (V of 1908), S. 115, O. XLI, R. 31--Suit for declaration and possession of property--Appeal filed by respondents also dismissed--Assailed--Validity--Document relied by respondents to substantiate their claim, had been satisfactory proved through statements of witnesses--Courts below had rightly clinched the factual controversy, had dealt with the matter in a thread-bare manner and came to concurrent conclusion after due application of independent mind, which could not be disturbed in revisional jurisdiction--Issues framed by trial Court reflected the pleadings of the parties and impartial issue appears to have escaped notice of trial Court, causing prejudice to petitioners--Courts have taken a rightful decision which is in consonance with evidence on file--No misreading or non-reading of evidence had been pointed out and at that time, Courts below were not shown to have been tainted with any illegality or irregularity in absence of which, no interference is permissible in revisional jurisdiction of High Court. [Pp. 91, 92, 93 & 94] A, B, G, I & J
Sheikh Wazir Muhammad, Advocate for Petitioners.
Mian Saad Ullah Khan Jandoli, Advocate for Respondents.
Date of hearing : 7.11.2005.
Judgment
Sahib Jan (since dead and represented by his legal heirs) and others plaintiffs, instituted suit against Aqeel and his mother Mst. Lal Baha, defendants, in the Court of Illaqa Qazi/Civil Judge, Jandol, District Dir, for declaration of ownership, possession of property in suit with rights of recovery of payment of produce and injunction against defendants, restraining defendants not to claim ownership etc. The suit property was claimed to have been acquired by the plaintiffs by virtue of inheritance.
The defendants appeared in Court and resisted the suit on all grounds, legal as well as factual. The parties were put to trial on as many as eleven issues. After recording such evidence as the parties wished to adduce, learned trial Judge, accepted claim of the plaintiffs and allowed suit, vide judgment and decree dated 21.11.2003, maintained in appeal by District Judge/Zilla Qazi Dir, vide judgment dated 13.10.2004. Feeling aggrieved, the petitioners have filed instant revision petition, which is before me for adjudication.
Representing the petitioners, Sheikh Wazir Muhammad, Advocate contended with vehemence that the impugned judgments and decrees of the Courts below are lacunic and suffer from the vice of misreading and non-reading of evidence on record; that trial Court has not properly framed the issues which are in the nature of omnibus and this fact was also not noted by the First Appellate Court and in fact the First Appellate Court has countersigned the judgment of the trial Court without adverting to Order XIV, Rule 1 CPC, therefore, impugned judgment of First Appellate Court is in violation of Order XIV Rule 1 CPC; that the provisions of Order XLI Rule 31 CPC have been seriously violated in this case and the Courts below have decided the case in violation of the parameters prescribed by the superior Courts, therefore, this Court has ample jurisdiction to interfere in the concurrent finding of fact arrived by both the Courts below while exercising powers under Section 115 CPC. To substantiate the contentions, reliance was placed on Sudhangshu Bimal Biswas Appellant vs. MD. Mustafa Chowdhary Respondent (1968 SCMR 213), Niaz Din appellant vs. S.M. Azhar and another respondents (1968 SCMR 221), Jehandar and another petitioners vs. Bazir Khan and others respondents (1990 MLD 83), Mst. Sughran Bibi and others appellants vs. Land Acquisition Collector, Narowal an another respondents (1988 CLC 936), Sardar Gurbakhsh Singh Appellant vs. Gurdial Singh and another respondents (A.I.R. 1927 Privy Council 230), K.S. Agha Mir Ahmad Shah and others appellants. vs. K.S. Agha Mir Yaqub Shah and others respondents (PLD 1957 (W.P) Karachi 258) and Mst. Nur Jehan Begum through Legal Representatives appellant vs. Syed Mujtaba Ali Naqvi respondent (1991 SCMR 2300).
Appearing on behalf of the respondents, Mr. Saadullah Khan Jandoli, Advocate, on the contrary, supported the impugned judgments and decrees of the Courts below and stated that the same are unexceptionable and do not suffer from any legal and factual infirmity warranting interference of this Court in its revisional jurisdiction.
I have heard in detail the arguments of learned counsel for the parties in the light of the material on the file.
Although this Court is not called upon to reappraise the evidence on record in exercise of its revisional jurisdiction, yet, in the interest of justice, I have gone through the evidence and find that the reasoning recorded by the Courts below are in consonance with the evidence on record and no prejudice seems to have been caused to the petitioners. The document in question (Ex. PW.1/1) dated 13.10.1979 heavily relied upon by the respondents to substantiate their claim, has been satisfactory proved through the statements of Bacha Mir, Waris and Mushtaq. All these witnesses were subjected to lengthy and searching cross-examination but they faced the test of cross-examination successfully. Both the Courts below have rightly clinched the factual controversy, have dealt with the matter in a thread bare manner and came to the concurrent conclusion after due application of independent mind, which cannot be disturbed in revisional jurisdiction. The learned counsel has failed to point any illegality by way of misreading and non-reading of the evidence by the Courts below. The trial Court as well as the appellate Court have elaborately discussed every aspect of the case and have dealt with the same in detail, leaving no room for further consideration. It is settled law that findings on question of fact or law recorded by competent Court of law/jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularity. The jurisdiction of the High Court to interfere with the concurrent finding of fact in revisional jurisdiction under Section 115 CPC is very limited. The High Court in exercise of its jurisdiction under Section 115 CPC can only interfere with the orders of the subordinate Courts on the grounds, that the Courts below assumed jurisdiction which did not vest in it, or has failed to exercise the jurisdiction vested in it by law or that the Court below has acted with material irregularity affecting its jurisdiction in the case.
The process of examination of evidence for upsetting a concurrent finding of fact in exercise of powers under Section 115, CPC in my view is neither permissible nor warranted by law. As earlier pointed out by me, interference with a finding of fact of the Courts below by the High Court in exercise of its revisional jurisdiction under Section 115 CPC could only be justified if such finding is the result of perverse appreciation of evidence on record. A wrong or erroneous conclusion on a question of fact by the Courts below is not open to interference by the High Court in exercise of its jurisdiction under Section 115 CPC. I may also mention here that the High Court while examining a concurrent finding of fact recorded by the Courts below in exercise of its revisional jurisdiction under Section 115 CPC has to attend to the reasons given by the Courts below in support of such finding and misreading, non-reading or perverse appreciation of evidence has to be discovered in the reasonings of the Courts below to justify interference in exercise of its revisional jurisdiction.
The next objection raised on behalf of the petitioners regarding non-compliance of the provisions of Order XLI, Rule 31 CPC is equally without force. Learned appellate Court was alive to the situation and the issue involved has been dealt with and decided in a careful manner. The appellate Court has given its findings on all the points of controversy and no prejudice seems to have been caused to the petitioners. The issues have been framed in view of the pleadings of the parties and no important or vital issue appears to have escaped notice of the trial Court. So far as the question of giving issue-wise findings by the appellate Court is concerned, the same is not the requirement of law as under Order XLI Rule 31 CPC, the appellate Court is to state the points for determination, give its decision thereon and reasons for the said decision be also mentioned. If the appellate Court chalked out a point of controversy and gave its findings thereon which are duly supported by reasoning, then the appellate Court would be said to have given its judgment in accordance with the provision of Order XLI Rule 31 CPC. Umer Din vs. Ghazanfar Ali and two others (1991 SCMR 1868) and Mst. Husna Bano vs. Faiz Muhammad and another (2000 CLC 709).
Adverting to the last objection, regarding omission on the part of the trial Court to formulate necessary issues, it is duty and obligation of the Courts to frame issues on the basis of the divergent pleadings of the parties. It is also settled principle of law that each material proposition should be reflected in distinct issue, point raised in one issue should not be stretched in other issue as per law laid down in major (Rtd.) Mazhar Mahmood Khan vs. Khushal Khan Jadoon (1995 MLD 316). It is basic and fundamental duty of the trial Court to settle proper issues for decision, nonetheless, in case of omission on its part litigant party was equally responsible to invite the attention of Court for supplying such deficiency. Every material proposition affirmed by one party and denied by the other to be put to issues so that the parties to lead evidence and to avoid prejudice being caused to either side due to absence of material issues. The mandate of Order XIV Rule 1 CPC reveals that it is incumbent upon the Court to frame issues, in the light of the controversies raised in the pleadings of the parties. Issues of law and facts are to be illustrated clearly, to unable the parties to understand the point at issue to support their respective claims by relevant evident on all material points. In the instant case, I find that the issues framed by the trial Court fully reflect the pleadings of the parties and not important issue appears to have escaped notice of the trial Court, causing prejudice to the petitioners. The parties were fully alive to the controversy involved and sufficient material was brought on the file in support of their respective contentions. The object of framing issues to to ascertain real issue between the parties by narrowing down the area of conflict and determine between the parties where the parties differ coupled with the fact that the framing of issues is one of the most important stage of the trial in view of Order XIV Rule 2 CPC read with Order XX Rule 5 and Order XVIII, Rule 1 CPC. The case law cited on behalf of the petitioners is distinguishable and has no bearing on the controversy involved.
In view of what has gone above, it follows that the learned trial Judge as well as the learned appellate Court have taken a rightful decision which is in consonance with the evidence on the file. No misreading of non-reading of evidence is proved and at the same time, the judgments of the Courts below are not shown to have been tainted with any illegality or irregularity in absence of which, no interference is permissible in revisional jurisdiction of this Court. There is no merit in this revision which is accordingly dismissed with no order as to costs.
(M.A.R.) Revision dismissed.
PLJ 2006 Peshawar 94 (DB)
Present: Muhammad Qaim Jan Khan and Salim Khan, JJ.
Mst. CHAMAN SHEERIN--Petitioner
versus
GOVT. OF N.W.F.P. through SECRETARY HOME N.W.F.P., PESHAWAR and 3 others--Respondent
W.P. No. 1668 of 2005, decided on 14.10.2005.
West Pakistan Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)--
----S. 3(1)--Constitution of Pakistan, 1973--Art. 199--Constitutional Petition--Maintenance of public order--Petitioner was alleged illegal raid by police at her residence and making arrest of her sons--Allegations of--Occasion public sensation for short period due to criminal occurrence, but occurrence itself did not become of public importance with such minor sensation and did not change personal character of occurrence, unless peace and tranquility of whole society is threatened by such offences--Held: Mere lodging of FIRs had never been considered as proof of guilt of persons charged in FIRs--Further held: Cases of individual and personal nature did not lead to conclusion that these cases which had occurred at different times and had been or being dealt with in accordance with provisions of law were prejudicial to maintenance of public order--Petition accepted. [P. 96] A, B & C
Mr. Fida Gul, Advocate for Appellant.
Mr. Akhtar Naveed, Addl. A.G. for Respondent.
Date of hearing: 14.10.2005.
Judgment
Salim Khan, J.--Mst. Chaman Shereen widow of Nawar Khan submitted the present writ petition with the allegations that the respondents raided the houses and hujra of the sons of the petitioner and arrested them under Section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, that the impugned order was issued on 21.9.2005 which has been assailed by the present petitioner, being the mother of Abdul Jabbar Khan, Bakhtiar Khan and Sher Aman Khan sons of Nawar Khan, residents of Mohallah Biland Khel, Hoti in District Mardan. We heard the learned counsel for the petitioner as well as the learned DAG, and perused the available record.
The learned DAG submitted the copies of FIRs Nos. 570 dated 20.7.1989, 686 dated 13.8.1990, 917 dated 12.11.1990,584 dated 20.7.1992, 58 dated 23.1.1993, 259 dated 9.3.1993, 966 dated 12.11.1994, 134 dated 31.1.1995, 410 dated 27.4.1997, 417 dated 29.4.1997 of Police Station, `B' Division, FIRs Nos. 859 dated 25.10.2002, 475 dated 17.4.2003, 1303 dated 3.11.2003 of Police Station, Hoti, Mardan, against Abdul Jabbar, Bakhtiar and Sher Aman accused.
The learned counsel for the petitioner referred to Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, and contended that there was nothing on record for the satisfaction of the Government that the sons of the petition named in the petition in hand have acted in any manner prejudicial to public safety or to the maintenance of public order. He also contended that the allegations against the sons of the petitioner on the strength of copies of the FIRs mentioned above do not amount to acting in any manner prejudicial to the public safety or to the maintenance of public order because the above mentioned cases are not only personal and individual, but have also not yet been proved in any Court of law. The learned DAG submitted that some of these cases have been decided and the accused have been fined.
The learned counsel for the petitioner then referred to 1994 SCMR 1532 (Mrs. Arshad Ali Khan Versus Government of the Punjab through Secretary Home) and submitted that cases of private, personal and individual nature could not be taken as threats to maintenance of public order.
The learned DAG could not be able to show us that how the public safety is in danger by the existence of the above mentioned cases, which are of routine nature, and how the above mentioned cases are prejudicial to the maintenance of public order. It is the primary duty of the police officials of a local police station to maintain public order. The cases of routine nature do take place and these are properly investigated by the investigating staff who submit the cases to the Courts of law for adjudication. The maintenance of law and order is the duty of the executive/administrative branch of the local police, and unless a case of grave threat to the peace and tranquility in the local society is made out, it cannot be said that the public order cannot be properly maintained.
The copies of FIRs, as mentioned above, indicate that the cases against the sons of the petitioner are of personal and individual nature involving one or more sons of the petitioner and their opponents, but not the public at large. There may occasion a public sensation for a short period due to a criminal occurrence, but the occurrence itself does not become of public importance with such minor sensation and does not change personal character of the occurrence, unless the peace and tranquility of the whole society is threatened by such offences. The mere lodging of FIRs has never been considered as proof of guilt of the persons charged in the said FIRs. The cases mentioned therein have to pass through the test of judicial scrutiny. It is on the basis of the facts and law involved in each case that an accused is either convicted or acquitted. But the mentioned cases of normal nature do not lead to the conclusion that there was treat or danger prejudicial to the maintenance of public order at the hands of the persons named in such FIRs.
In the circumstances of the present case, we are of the view that the cases mentioned against the three sons of the petitioner, namely, Abdul Jabbar Khan, Bakhtiar Khan and Sher Aman Khan are the cases of individual and personal nature and do not lead to the conclusion that these cases, which had occurred at different times, and have been or being dealt with in accordance with the provisions of law, are prejudicial to the maintenance of public order.
We, therefore, accept the present writ petition, set aside the impugned order dated 21.9.2005 and direct that the sons of the petitioner named above be set free forthwith, if not required in custody in any other case.
(A.S.) Petition accepted
PLJ 2006 Peshawar 97
Present: Ijaz-ul-Hassan, J.
HAKEEM QARI MUSHTAQ etc.--Petitioners
versus
MUHAMMAD TARIQ KHAN etc.--Respondents
C.R. No. 1150 of 2004, decided on 13.2.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Scope--Held: Though under S. 115 even if a different view could possibly be taken on reappraisal of evidence the same would not have been a ground to interfere in a concurrent finding of fact. [P. 98] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XX, R. 5--Issue-wise finding--Held: Requirement of recording issue-wise finding by Appellate Court is not mandatory--It is sufficient for Court to dealt with all the material issues excepting those abandoned by appellant--Appellate Court recording its finding on the points raised before it without discussing the issues separately could not be said to have committed any illegality or error. [P. 98] B
1991 SCMR 1816, ref.
Mr. Muhammad Zahir Shah, Advocate for Petitioners.
Date of hearing : 13.2.2006.
Judgment
Qazi Mushtaq Ahmad plaintiff instituted suit against Muhammad Tariq Khan and his brother Muhammad Farooq Khan, defendants, for a declaration to the effect that plaintiff was owner in possession of suit plot by virtue of agreement deed dated 12.5.1994 and entries in the revenue record contrary to it were incorrect and factitious and liable to rectification. The plaintiff also prayed for grant of permanent injunction restraining defendants from alienating the suit plot in any manner. The plaintiff further prayed for possession of suit plot in case he was not found in possession of the same or return of its market price. The plaintiff claimed to have given an amount of Rs. 3,54,000/- to Defendant No. 1 as loan in lieu of the plot in question. The plaintiff also claimed to have made improvements over it to the tune of Rs. 49,000/-. A further amount of Rs. 2,63,000/- was also stated to have been paid to Defendant No. 1 as loan. The suit was resisted and the claim of the plaintiff was denied. Relevant issues were farmed and after recording such evidence as the parties wished to adduce, learned Civil Judge/Illaqa Qazi, Swat by his judgment and decree dated 16.3.2004, dismissed the suit holding that the plot in question belongs to Defendant No. 2, who was not a party to the transaction and the agreement deed dated 12.5.1994 has not been proved satisfactorily. An appeal was preferred thereagainst which did not succeed. The same was dismissed by judgment dated 15.7.2004 of learned Additional District Judge/Izafi Zilla Qazi, Swat.
The petitioner, feeling aggrieved, has filed instant civil revision, challenging the concurrent findings of facts recorded by the Courts below.
Learned counsel for the petitioner bitterly criticized the impugned judgments and decrees of the forums below and attempted to argue that the lower Courts have acted in disregard to law and well settled principles relating to appraisal of evidence, which has resulted in manifest injustice. The learned counsel also maintained that the judgment of the appellate Court is not in accordance with law as the appellate Court has not decided the appeal issue-wise.
No doubt, it is true that when the element of injustice caused to the petitioner is apparent on record, then certainly the findings recorded by the Courts below are not immune from the corrective process of this Court under the provisions of Section 115 CPC, but after holding close scrutiny of evidence, I have satisfied myself that concurrent finding of fact recorded by both the Courts below do not suffer from any material irregularity and illegality such as misreading, misconstruction and non-reading of any material piece of evidence. Though under Section 115 CPC even if a different view could possibly be taken on reappraisal of evidence, the same would not have been a ground to interference in a concurrent finding of fact. In the instant case, learned counsel for the petitioner has totally failed to convince me that concurrent finding of fact recorded by the forums below are outcome of misreading or non-reading of evidence on record and cannot be allowed to remain intact. Adverting to the second objection that the appellate Court had failed to record judgment issue-wise and separate in terms of the requirement of Order XX, Rule 5 CPC, the same is equally misconceived. The requirement of recording finding issue-wise by the appellate court is not mandatory. It is sufficient for the appellate Court to deal with all the issues as are material for disposal of the controversy excepting those abandoned by the appellant. An appellate Court recording its findings on the points raised before it, without discussing the issues separately cannot be said to have committed an illegality or error as held in Umar Din vs. Ghazanfar Ali and others (1991 SCMR 1816).
In the result and for the foregoing reasons, the civil revision in hand stands dismissed in limine.
(J.R.) Revision dismissed
PLJ 2006 Peshawar 99
Present: Ijaz-ul-Hassan, J.
MUNTAZIR--Petitioner
versus
QALAR KHAN etc.--Respondents
C.R. No. 112 of 2004, decided on 13.2.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--N.W.F.P. Pre-emption Act 1987, S. 13--Held : Contradictions and discrepancies in the statements of witnesses were inconsequential in nature of respondent having superior right of pre-emption qua the petitioner--Post Master proved the notice in question--Requirements of S. 13 were fully proved--Judgment of Appellate Court was upheld. [P. 102] C & D
(ii) N.W.F.P. Pre-emption Act, 1987--
----S. 13--Demand of pre-emption--Held: Pre-emption right being a feeble right of pre-emptor is required to perform and fulfil its requirements meticulously and any failure in that behalf would deprive him of success in getting a pre-emption decree. [P. 101] B
(iii) N.W.F.P. Pre-emption Act, 1987--
----S. 13--Demand of pre-emption--Held: Pre-emption right could not be exercised by a pre-emptor unless & until he performed Talb-e-Muwathibat immediately after hearing the sale--Delay in performing the ceremony is fatal to his right. [P. 101] A
2001 SCMR 1700; 2001 CLC 1743; 2004 SCMR 1580; 2001 SCMR 798; PLD 2002 Pesh. 21; PLD 2002 Pesh. 109; PLD 2003 Pesh. 179 & 1997 MLD 2945, ref.
Mr. Mahmood Alam Khan, Advocate for Petitioner.
Mr. Arbab Muhammad Asif, Advocate for Respondents.
Date of hearing : 13.2.2006.
Judgment
Shortly put the facts, necessary for the disposal of instant Civil revision are, that suit land measuring 1 kanal 15 marlas, located in Khasra No. 2993, in the area of Mauza Jalbai, Tehsil Lahor District Swabi, was purchased by Muntazir Defendant No. 1, on the basis of unregistered sale-deed No. 849 dated 10.7.1999, for an ostensible sale price of Rs. 17,500/-.
Qalar Khan, plaintiff, instituted suit to enforce his right of pre-emption in respect of suit land. He claimed to have obtained knowledge of the suit transactions 1.8.1999 at Shagai Chowk', swabi through his co-villager
Saifullah in the presence of Faqir Waris and instantly expressed his intention to purchase suit property and madetalb-i-muwathibat' followed by notice of
`talab-i-ishhad'.
The suit was resisted on all grounds, legal as well as factual. Relevant issues were framed and after recording such evidence as the parties wished to adduce, learned Civil Judge, Lahor, seized of the matter, by his judgment and decree dated 12.9.2003, dismissed the suit, holding that the plaintiff has failed to provetalabs' in accordance with law'. An appeal was preferred thereagainst, which was accepted, judgment and decree of the trial Court was set aside and suit was decreed on payment of Rs. 72,000/- as sale consideration, by learned Additional District Judge, Lahor District Swabi, by judgment dated 22.1.2004.
Muntazir petitioner, feeling aggrieved, has filed instant civil revision under Section 115 CPC assailing the judgment and decree dated 22.1.2004 of the appellate Court.
I have heard in detail Mr. Mahmood Alam Khan, Advocate for the petitioner and Arbab Muhammad Asif, Advocate for the Respondent. I have also gone through the record of the case with their able assistance.
Learned counsel for the petitioner confined his arguments to Issue No. 4, relating to the requirements of `talab's and attempted to argue that suit was dismissed by the learned trial Court for valid reasons and the learned appellate Court had no justifiable reason to take contrary view and decree the suit. According to the learned counsel, finding on Issue No. 4 has been recorded by the appellate Court in a mechanical manner without application of mind and in total disregard to the material on file which has resulted in complete failure of justice. To augment the submissions, reliance was placed on Muhammad Akhtar petitioner vs. Mst. Manna and others respondents (2001 SCMR 1700), and Muhammad Hassan and another appellants vs. Liaqat Ali Khan respondent (2001 CLC 1743 Lahore).
Learned counsel for the respondent, on the other hand, supported the impugned judgment and decree whole heartedly and reiterated that the civil revision petition is bereft of substance and merits outright dismissal. To augment the contention, he placed reliance on Allah Bakhsh and another petitioners vs. Falak Sher respondent (2004 SCMR 1580), Abdul Qayum through legal heirs Appellant vs. Mushk-e-Alam and another respondent (2001 SCMR 798), Haji Din Muhammad through Legal Heirs Petitioners vs. Mst. Hajra Bibi and others (PLD 2002 Peshawar 21), Muhammad Younas petitioner vs. Mst. Mehr Afzoon (PLD 2002 Peshawar 109) and Yar Muhammad Khan petitioner vs. Bashir Ahmad Respondent (PLD 2003 Peshawar 179).
In order to appreciate the arguments of learned counsel for the parties, I consider it appropriate to reproduce below Section 13 of the N.W.F.P. Pre-emption Act, 1987 which reads:--
"13. Demand of pre-emption.--(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:--
(a) `Talb-i-Muwathibat';
(b) `Talb-e-Ishhad'; and
(c) `Talb-i-Khusumat'.
The three demands asserting the right of pre-emption have their own respective connotations.
The first demand, i.e. `Talb-i-Muwathibat' or, what is literally meant, the jumping is defined in the first Explanation to sub-section (1) of Section 13 which envisage firstly, the act of prospective pre-emptor coming to know of the factum of a sale, secondly, such knowledge/information emanating from a sitting or meeting i.e. Majlis and thirdly, and rather foremostly declaration of his intention to exercise the right of pre-emption immediately on gaining the knowledge of the sale.
A person who intends to pre-empt a sale transaction by enforcing his right of pre-emption shall make an immediate demand in the sitting or meeting in which he has come to know of the sale declaring his intention to exercise the right of pre-emption technically called "Talb-e-Muwathibat". He shall be thereafter required to make the demand of "Talb-e-Ishhad" by establishing evidence as soon as possible but not later than two weeks from the date of notice under Section 32 of the Act or knowledge whichever may be earlier, by sending a notice in writing attested by two truthful witnesses to the vendee under a registered postal cover with acknowledgment due confirming his intention to exercise the right of pre-emption, then comes the demand for "Talb-e-Khusumat" by filing a suit in a competent Court for enforcing his right of pre-emption.
This is settled proposition of law in pre-emption cases that pre-emption right cannot be exercised unless and until the pre-emptor has performed the ceremony of Talb-e-Muwathibat immediately after hearing the sale. The delay in performing the ceremony is fatal to that right. When Talab-e-Muwathibat is not made instantly on coming to know of the sale, the right of pre-emption is lost. A short delay would not be excused.
It may not be out of place to mention here that the pre-emption right, being a feeble right pre-emptor seeking to exercise such right is required to perform and fulfil its requirements meticulously and any failure in that behalf would deprive him of success in getting a pre-emption decree as held in Wahid Bakhsh and others vs. Abdul Qayum and others (1997 MLD 2945 (Peshawar).
Having considered the matter from all angles, in the light of the evidence on the file, I find that contradictions and discrepancies pointed out by the learned counsel for the petitioner in the statements of witnesses are inconsequential in nature and do not damage the respondent's case, who admittedly possesses superior right of pre-emption qua the petitioner, who is devoid of this qualification. The variations in the statements of witnesses qua date of issuance of notice are of no consequence and appear to be a slip of tongue. The Post Master concerned was produced, who has fully testified the date of issuance of the notice in question. A perusal of the record would unmistakably indicate that on coming to know of the suit transaction, respondent immediately expressed his intention to pre-empt the suit property in presence of the witnesses and fulfilled the requirement of Section 13 of NWFP Pre-emption Act, 1987.
Pursuant to above discussion, I find that judgment of the learned Additional District Judge is well-reasoned and suffers from no legal or factual infirmity calling for interference of this Court in its revisional jurisdiction under Section 115 CPC. The revision petition having been found devoid of force is dismissed with no order as to costs.
(J.R.) Petition dismissed
PLJ 2006 Peshawar 102
Present: Ijaz-ul-Hassan, J.
TAJ MUHAMMAD--Petitioner
versus
CHAIRMAN WAPDA, WAPDA HOSUE LAHORE etc.--Respondents
C.R. No. 1314 of 2004, decided on 10.2.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XX, R. 5--Issue wise finding--Held: O. XX, R. 5 is evidently applicable to original Court which heard a civil suit, and not mandatory for Appellate Court--It is sufficient for Appellate Court to deal with all issues which are material for disposal of the controversy excepting those abandoned by appellant--Appellate Court recording its finding on the points raised before it without discussing the issues separately cannot be said to have committed any illegality or error. [P. 105] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 25--Remand of case--Held: In case the parties had led evidence with regard to the particular point and trial Court by giving specific finding on such point had decided it in light of available record, the remand of case was not proper exercise of the jurisdiction by Appellate or revisional Court. [P. 105] B
(iii) Civil Procedure Court, 1908 (V of 1908)--
----O. XLI, R. 27--Additional evidence--Held: This provision is applicable only if the Court considers that it would not be able to pronounce judgment without further evidence and not for the benefit of a party which has not been vigilant enough to see that no weaknesses are left in its case--Power to order remand is no doubt wide, but it should be exercised only in those cases where in omission of a party was accidental. [P. 105] C
2006 CLC 125 & PLD 2004 SC 10, ref.
Mr. Muhammad Asif, Advocate for Petitioner.
Mr. Fida Gul, Advocate for Respondents.
Date of hearing : 6.12.2005.
Judgment
Facts relevant for the disposal of instant civil revision are, that Taj Muhammad, plaintiff instituted suit against Chairman WAPDA, Lahore and others, defendants, for declaration to the effect that notice dated 29.1.1999 issued by Defendant No. 4, requiring the plaintiff to pay additional amount/fine entered in the Bill dated 8.5.1993, is unlawful and ineffective on the rights of the plaintiff and defendants are not justified to demand additional amount or disconnect electricity connection of the plaintiff. The defendants were approached time and again to redress the grievance of the plaintiff but they declined to do so, which led the plaintiff to file suit.
The suit was resisted on all grounds, legal as well as factual. In view of the pleadings of the parties, following issues were framed:--
Whether the plaintiff has got a cause of action?
Whether the suit is incompetent?
Whether the plaintiff is estopped to sue?
Whether M&T report is against plaintiff?
Whether this Court has got jurisdiction?
Whether plaintiff has been stealing the electricity and the disputed amount is justified?
Whether defendants can legally realize the disputed amount from the plaintiff?
Whether plaintiff is entitled to the decree as prayed for?
Relief.
In the second round of litigation, learned Civil Judge/Illaqa Qazi, Malakand at Dargai, by his judgment and decree dated 29.10.2003, dismissed the suit, holding that the plaintiff has not been able to substantiate his claim. An appeal was preferred thereagainst, which did not succeed. The same was dismissed by learned Additional District Judge, Malakand at Batkhela, by his judgment dated 9.9.2004.
The petitioner, feeling aggrieved, has filed instant revision petition under Section 115 CPC, to call in question the concurrent findings recorded by the Courts below on variety of grounds.
I have heard at length Mr. Muhammad Asif, Advocate for the petitioner and Mr. Fida Gul, Advocate for respondents in the light of the material on file.
Learned counsel for the petitioner bitterly criticized the impugned judgments and decrees of the forums below and attempted to argue that same are result of misreading and non-reading of the evidence on record; that the Courts below have failed to appreciate the point involved in the case in its true perspective; that the appellate Court has not decided the appeal issue-wise and thus has acted illegally; that statements of witnesses examined on behalf of the respondents were full of serious discrepancies and contradictions regarding the disconnection of electric supply to the petitioner; that appellate Court has failed to appreciate the fact that petitioner had moved an application for withdrawal of the suit with permission to file a fresh one, which was seriously contested but after hearing the arguments, appeal has been decided without taking into consideration the application for withdrawal of the suit and that matter may be sent back to the Court below for decision afresh.
The submissions of the learned counsel for the petitioner do not carry weight. The concurrent findings of fact recorded by the Court below are based on correct appreciation of the evidence and hardly call for interference of this Court in its revisional jurisdiction. The evidence produced by the petitioner is deficient and does not inspire confidence. On the contrary, sufficient material has been brought on the record by the respondents to rebut the claim of the petitioner. The mere assertion of the learned counsel for the petitioner that the evidence led by the respondents suffers from contradictions and lacunas, without a positive attempt on his part to substantiate the same, is of no consequence. A perusal of the record would reveal that the electricity meter was installed at the residence of the petitioner in the year 1992. The petitioner has failed to make payment of arrears from January 1994 to May 2000. The conduct of the petitioner is clearly indicative of the fact that he is not in a fit mood to discharge his liability and pay arrears of electricity bills. The sole object of the petitioner appears to be, to prolong the litigation and avoid payment as long as possible. In the circumstances, he cannot be allowed to withdraw suit with liberty to bring fresh suit.
The contention that appellate Court had failed to record judgment issue-wise and separately in terms of the requirements of order XX, Rule 5 CPC, and thus the case is fit for remand in terms of Order XLI, Rule 25 thereof, the submission is not tenable. Order XX, Rule 5 CPC is evidently applicable to the original Court, which hears a civil suit. As regards appellate Court, the requirement of recording finding issue-wise is not mandatory. It is sufficient for the appellate Court to deal with all the issues as are material for disposal of the controversy excepting those abandoned by the appellant. An appellate Court recording its findings on the points raised before it, without discussing the issues separately cannot be said to have committed any illegality or error as held by this Court in Naimat Khan and others, Petitioners vs. Hamzullah Khan and others respondents (2006 CLC 125).
The appellate and the revisional Court is always empowered to remand the case in terms of Order XLI, Rule 25 CPC, but this discretionary power is used only in exceptional situation and if the parties have led evidence with regard to the particular point and the Court of first instance by giving specific finding on the said point decided the same in the light of evidence available on record, the remand of the case in appeal or revision is not proper exercise of the jurisdiction. Needless to emphasize that powers under Order XLI, Rule 27 CPC are to be exercised only if the Court considers that it would not be able to pronounce judgment without further evidence, and this provision cannot be used for the benefit of a party which has not been vigilant enough to see that no weaknesses are left in its case. The power to order remand is no doubt wide, but it should be exercised only in those cases wherein omission of a party was accidental. A party cannot be allowed to adduce evidence to do away with the weakness that exists in its case. The august Supreme Court of Pakistan in case titled Ashiq Ali vs. Zamer Fatma PLD 2004 SC 10, has observed as under:--
"It is well settled by now that where the evidence on record is sufficient from the Court concerned to decide the matter itself, remand should not be ordered and moreso, a Court will not remand a case where the defect is due to the negligence and the default of the party desiring remand."
For what has been discussed above, finding no substance in this civil revision, I dismiss the same with no order as to costs.
(J.R.) Petition dismissed
PLJ 2006 Peshawar 106 (DB)
Present: Shahzad Akbar Khan & Salim Khan, JJ.
KHURSHID IQBAL--Petitioner
versus
DIRECTOR LAND RECORD NWFP, PESHAWAR and 5 others--Respondents
W.P. No. 1308 of 2004, heard on 13.4.2005.
Land Records Manual--
----Para 10, Chapter 3, Part III--Constitution of Pakistan, 1973--Art. 199--Patwari--Admission in Patwar School--Roll number not issued on commencement of examination--Appellant appeared in some papers under orders of Addl. District Judge, but not allowed to appear in remaining papers on dismissal of revision petition--Validity--Petitioner has already suffered due to misunderstanding regarding interpretation of Para 3.10 of Land Records Manual--He, being enlisted candidate has a right to attend school and present himself for Patwari examination on payment of examination fee only--The right has been refused to him by respondents--Petitioner has misused some written paper and practical--Held: Petitioner has right to appear in next coming examination for remaining papers of his examination--Petition allowed. [P. 110] A & B
Mr. Abdul Mabood Khattak, Advocate for Petitioner.
Mr. Obaidullah Anwar, Addl. A.G. for Respondents.
Date of hearing: 13.4.2005.
Judgment
Salim Khan, J.--It was alleged by the petitioner in his writ petition that the name of the petitioner was enlisted as Patwari candidate in District Karak. He was admitted in the Patwar School at Revenue Academy Karak vide order dated 7.10.2003 of the Principal, Revenue Academy Karak, on the recommendation of the District Officer (Revenue and Estate), District Karak. The examination, after completion of the training, was announced to commence on 1.7.2004, but no roll number was issued to the petitioner. The petitioner filed a civil suit in the Court of learned Civil Judge Takht-e-Nasrati, Karak, but only a notice was issued in that case. Petitioner filed a revision petition in the Court of learned Additional District Judge, Karak, who provisionally allowed the petitioner to appear in the examination. The petitioner appeared for examination in 4 papers of theory and for 2 practicals. The examination was to end on 10.7.2004, but the learned Additional District Judge dismissed the revision petition on 7.7.2004, hence the petitioner was unable to appear in the examination of remaining appears and practicals.
He filed the writ petition in this Court. Comments of respondents Nos. 1 and 3 were called for, which were received, to which rejoinder was filed by the petitioner. Keeping in view Para-B of the grounds of parawise comments submitted by Respondent No. 1, pre-addition notice.
We heard Mr. Abdul Mabood Khattak, Advocate for the petitioner, and Mr. Obaidullah Anwar, Addl. AG for Respondents Nos. 1 to 4, alongwith Respondent No. 1 in person, as the present incumbent of the post, who also dismissed the case before us. The main discussion revolved around Para 3.10 of the Land Records Manual, which was interpreted by the parties differently. This discussion necessitated the admission of the writ petition to full hearing during the arguments which was so admitted. The parties then argued the case in detail.
The only contention of the present incumbent of the post of Respondent No. 1 was that his predecessor-in-office had not granted permission to the present petitioner for the purposes of admission in school, and therefore, no roll number was issued to him, except that he was temporarily allowed to sit in the examination on the orders of the Court.
For the sake of convenience, Para 10 of Chapter 3 under Part-III regarding Parwar Schools, of the Land Records Manual is reproduced as under:--
"3.10 Patwar schools: The following general instructions have been issued for observance in the organization and management of Patwari schools in districts. Settlement Officers also should be guided by them as far as possible:--
(i) When required, a single school will be opened for the Province as a whole, or one school at each divisional headquarters or other suitable center in the division on the 1st February and will close on the 31st October 9 months at the discretion and with the sanction of Director of Land Records. Any candidates entered in the register may attend the school and present himself for the Patwari examination. Unaccepted candidates may be allowed to join the Patwar School with the permission of Director of Land Records. They shall be required to pay both tuition fee and examination fee while the accepted Patwari and Kanungo candidates shall pay the examination fee only."
The salient features of the above mentioned instructions are that (1) a school is to be open at the discretion and with the sanction of Director Land Records. (2) Any candidate entered in the register may attend the school and present himself for the Patwari examination. (3) Accepted Patwari and Qanungo candidates shall pay the examination fee only. (4) Unaccepted candidates may be allowed to join the Patwar School with the permission of Director of Land Records. They shall be required to pay both tuition fee and examination fee. These salient features show that the intervention of the Director of Land Records is necessary only to the extent of opening of the school, and allowing the unaccepted candidates to joint the patwar school. His intervention, therefore, is not required in the case of candidates entered in the register for their attending the school and presenting themselves for the patwari examination, and that they are required to pay the examination fee only.
The ambiguity appears to have arisen out of the words `unaccepted candidates' appearing in the above mentioned instructions. In order to further explain the above words, it is necessary to quote Paras 6 and 7 of Chapter 3 under Part-II regarding Patwari candidates which are to the following effect:--
"3.6. Register of Patwari candidates: (a) For each Tehsil a register of candidates is kept in Form P.1 given in Appendix G. In this register candidates shall be entered in the order in which their applications are accepted, but priority of entry shall give no priority of claim to appointment.
(b) The total number of candidates in any district should never exceed fifteen per cent of the total number of Patwaris and assistant Patwaris employed in the district. In districts under settlement this limit may be raised to thirty per cent at the discretion of the Settlement Officer. Any further increase in these percentages by the Deputy Commissioner or Settlement Officer requires the previous sanction of the Board of Revenue.
(c) Seventy-five per cent of the candidates must belong to rural areas or to the families owning or cultivating land and having rural outlook and bias.
(d) A separate list of Patwari candidates will be maintained by the Colonization Officers to meet their requirements."
"3.7. Qualifications of applicant: Application for entry in this register must be made by candidates in person to the Collector or such other officer not below the rank of Assistant Collector of the 1st grade as he shall appoint, but no name should be entered in the register except by the Collector's own order, passed after he has seen the candidate.
In the case of candidates who claim to be agriculturists, Collectors should satisfy themselves by documentary evidence that they are really so and the evidence should be preserved.
The chief qualifications of candidates are as follows:--
(1) Ability to write the Urdu character with facility and with a legible formed hand.
(2) Ability to work out correctly and quickly simple sums in arithmetic such as occur in a Patwari's daily work.
(3) Good physique and health, good eye-sight, age not less than 17 or more than 23 years.
Note: Deputy Commissioner may, however, accept candidates above the age of 23 years with the special sanction of the Director of Land Records."
The candidates whose applications have been accepted under Clause (a) of
Chapter 3.6 are accepted candidates', and the applicants, after acceptance of their applications under the Note of Chapter 3.7 also becomeaccepted candidates'. It was in contrast to the words accepted candidates' mentioned in the paras mentioned above that the wordsunaccepted candidates' were used in
Para 3.10. In order to provide further authority to the Director of Land
Records, over and above the authority of the Collector or an Assistant
Collector or any other officer not below the rank of Assistant Collector 1st grade, as appointed by the Collector, he was authorized to allow `unaccepted candidates' also to the school.
It is in Letter No. 2729/DK dated 5.11.2003 by the District Officer, Revenue and Estate, Karak to the Director, Land Record, N.W.F.P. Peshawar that the admission of Khurshid Iqbal son of Abdul Muhammad, the present petitioner, was justified on the following grounds:--
"1. He is an enlisted candidate of District Karak.
He was recommended for Patwar Training for the last session vide this office memo No. 1415/Rev: School dated 24.5.2002, but was not allowed due to unavoidable circumstances by the your office.
He has been admitted in Revenue Academy Karak this year by the Principal Revenue Academy Karak on the recommendation on this office.
He has not crossed his age limits.
A few posts of Patwaris will fall vacant upto 2005 due to retirement of Kanungo on superannuation.
If was requested through the said letter to allow the petitioner to complete his training at Revenue Academy Karak. An other Letter No. 2785/DK dated 12.11.2003 shows that the present petitioner had obtained 552/1100 marks, while Usman Ali had obtained 532/1100 marks and a request for his continuous in the School was made in preference to Usman Ali. It appears that efforts were being made to accommodate Usman Ali recommendee by an authority. The prescribed age limit was shown by the Director Land Records as 18-25 years in his Letter No. 2770 dated 28.10.2003. It had never been the case of Respondents Nos. 1 to 4 that the present petitioner was either overage at the time of entry of his name in the register of patwari candidates, or he did not have the required qualifications at the time of permission granted to him by Respondent No. 3, on the recommendation of Respondent No. 2, or when he was first recommended for admission in the School but was not so allowed for reasons not available on the record of this case. It is also not disputed that the petitioner was an enlisted candidate whose name was entered in the register of patwari candidates. There is nothing on the record to show that the age of the petitioner was either less than 17 years or more than 25 years at the time of entry of his name in the register of patwari candidates.
The petitioner has already suffered due to the misunderstanding regarding the interpretation of Para 3.10 of the Land Records Manual. He, being an enlisted candidate, had a right to attend the School and present himself for the Patwari examination on payment of the examination fee only. This right has been refused to him by the respondents. The petitioner has misused some written papers and practicals. He has a right to appear in the next coming examination for the remaining papers of his examination, but shall not be prejudiced by the commissions or omissions of the respondents in future till now provided he passes the examination under the rules.
We, therefore, allow the present writ petition, set aside the impugned judgments and orders of Respondents Nos. 5 and 6, and in order to clear the way for the petitioner, direct Respondents Nos. 1 to 4 to allow the petitioner to appear in the remaining papers as well as practicals in the next coming examination, and also direct them to declare his result as a whole, after marking the papers already given by him, and giving him marks for the practicals already conducted by him.
(A.S.) Petition allowed
PLJ 2006 Peshawar 110 (DB)
Present: Tariq Parvez Khan and Salim Khan, JJ.
COMMISSIONER OF INCOME TAX--Petitioner
versus
FOAR ENGINEERING, PESHAWAR--Respondent
S.A.O. No. 4 of 1999, decided on 14.9.2005.
Income Tax Ordinance, 1979 (XXXI of 1979)--
----Clause, 118-A--Second Schedule--Exemption--Industrial undertaking--More than one objects of undertaking--Inspecting Additional Commissioner refusing exemption from income tax--Assessment orders setting aside by tribunal--Validity--It is not multifariousness of objects of industrial undertaking which is important for explanation of Clause 118-A of Ordinance--Held: Income Tax Appellate Tribunal had authority to apply provisions of correct law to circumstances of case--Appeals dismissed. [P. 113] A & B
Mr. Eid Muhammad Khattak, Advocate for Petitioner.
Mr. Abdur Rauf Rohaila, Advocate for Respondent.
Date of hearing : 14.9.2005.
Judgment
Salim Khan, J.--This judgment will dispose of SAO No. 4/99, SAO No. 5/99 and SAO No. 6/99, because the order dated 14.11.1998 impugned in all the three appeals in one and the same, and has been passed by the learned Income-Tax Appellate Tribunal, Peshawar Bench, Peshawar.
"(118-A) Profits and gains derived by an assessee from an industrial undertaking set up between the first day of July, 1988, and the thirtieth day June, 1993, both days inclusive, for a period of eight years beginning with the month in which the undertaking is set up or the commercial production is commenced, whichever is the later.
The exemption under this clause shall apply to an industrial undertaking which is--
(a) Set up in the Province of Balochistan (excluding Hub Chowki area), North-West Frontier Province, the Federally Administered Tribal Areas, the Northern Areas and Azad Kashmir;
(aa) set up in the divisions of Dera Ghazi Khan and Bahawalpur in the Province of the Punjab and the divisions of Sukkur and Larkana in the Province of Sindh;
(b) not formed by the splitting up, or the reconstruction or reconstitution, of a business already in existence or by transfer to a new business of any machinery or plant used in a business which was being carried on in Pakistan at any time before the commencement of the new business;
(c) owned and managed by a company formed exclusively for operating the said industrial undertaking, and registered under the Companies Ordinance, 1984 (XLVII of 1984), and having its registered office in Pakistan;
(d) engaged in the manufacture of goods or materials or the subjection of goods or material to such process; and
(e) an undertaking the income, profits and gains, of which are not liable to be computed in accordance with the rules contained in the Fifth Schedule."
The learned Inspecting Additional Commissioner was of the view that the company was not exempt from the payment of income-tax when there were more than one objects of an undertaking, but an industrial undertaking managed by a company was exempt from the payment of income-tax when the object was definite and singular. The learned Income-Tax Appellate Tribunal did not concur with the mentioned view of the learned Inspecting Additional Commissioner. The learned Tribunal was of the view that it is the formation of company during certain period given in the above referred Clause, which counts for the purposes of industrial undertaking, and the main object of the said Clause is that a company must have been exclusively established for the purposes of the undertaking whose objects have been clearly mentioned at the time of establishment of such undertaking.
The plain reading of the above quoted Clause (118-A) to the Second Schedule of the Income-Tax Ordinance, 1979, shows that the company owning and managing the industrial undertaking should have been formed exclusively for operating the industrial undertaking. It means that the company and the industrial undertaking should have been formed for the purposes and objects of the undertaking. There is nothing in that Clause to show that the object of the undertaking should not be more than one, or these objects should be related to one type of industrial units.
The legal questions raised by the appellant in all the three mentioned appeals are as under:--
(a) Whether the learned ITAT was legally right to hold in terms of Clause (118A(c) of Part I of the Second Schedule to the Income Tax Ordinance, 1979, that the assessee company was formed exclusively for operating the industrial undertaking when the Memorandum of the assessee company contains multifarious objects which, besides manufacturing of all descriptions in Pakistan or elsewhere as well as imports and exports of goods.
(b) Whether on the facts and in the circumstances of the case the L/ITAT was justified in allowing exemption to the assessee under Clause 118-A, when the assessee had multifarious objective as per its memorandum and articles of association and as such did not qualify for exemption.
(c) Whether the L/ITAT was justified in adjudicating upon on issue which was neither taken up in the grounds of appeal nor pressed by the assessee in proceedings before the L/ITAT.
(d) Whether on facts and in the circumstances L/ITAT was justified to hold that the `company should exclusively own one industrial undertaking irrespective of the fact that it is pursuing single objective or not' and that the exemption u/c 118-A is allowed to the industrial undertaking and not the company.
The provisions of Clause (118-A) to the Second Schedule of the Income Tax Ordinance 1979, are applicable to the circumstances of the present cases which have been properly applied and sufficiently explained by the learned Income-Tax Appellate Tribunal. Clause (118-A)(c) of the said Ordinance of 1979 has been quoted in the formulated questions either due to some misconception or misunderstanding. It is not the multifariousness of objects of an industrial undertaking, but is the formation of the company exclusively for such undertaking, which is important for explanation of Clause 118-A of the Ordinance mentioned above. The learned Income-Tax Appellate Tribunal had the authority to apply the provisions of correct law to the circumstances of the cases.
(A.S.) Appeals dismissed
PLJ 2006 Peshawar 113 (DB)
Present: Ijaz-ul-Hassan and Ejaz Afzal Khan, JJ.
Haji KHAN WALI and another--Petitioners
versus
DIRECTOR GENERAL CD & MD, PESHAWAR, PDA HOSUE, HAYATABAD, PESHAWAR and 3 others--Respondents
W.P. No. 1502 of 2005, decided on 29.8.2005.
(i) Constitution of Pakistan, 1973--
----Art. 199--Extraordinary jurisdiction--Constitutional jurisdiction could not be treated as additional or anthor remedy provided by law--Constitutional jurisdiction can be invoked where no other adequate remedy was available to petitioner under law--Court would have discretion to grant or refuse relief of such Court was satisfied that aggrieved party could have alternate remedy elsewhere--Where, however, order impugned was without authority, without jurisdictions or functionary acted malafide or in unjust manner, Court would grant relief in terms of Art. 199 of the constitution--Rule of alternative remedy is rule of discretion, which is to be used in just, fair and reasonable ways. [P. 115] A
(ii) Constitution of Pakistan 1973--
----Art. 199--Civil Procedure Code (V of 1908), S. 9--Constitutional jurisdiction--Competency to in voter--Alternative remedy by way of filing civil suit in competent Court of law was available to petitioner--Petitioner did not avail remedy of suit and instead invoked constitutional jurisdiction of High Court--Assertions of petitioner revolve around factual dispute, truthfulness or otherwise of which cannot be determined without inquiry and recording of evidence--Constitutional petition being destitute in substance, was thus not maintainable and the same was dismissed. [P. 115] B
1993 SCMR 618, ref.
Mr. Muhammad Ijaz, Advocate for Petitioners.
Date of hearing : 29.8.2005.
Order
Ijaz-ul-Hassan, J.--The petitioners by way of filing instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, against Director General CD & MD, Peshawar, PDA House, Hayatabad, Peshawar and others respondents, seek declaration to the effect that petitioners having paid the price for Plot Nos. 491 and 496 in sector F/7 Hayatabad, measuring 10 marlas each, are full owners of the said plots and the orders of cancellation of these plots dated 14.12.1996 by the respondents, be declared as illegal, without lawful authority and ineffective against the rights of the petitioners.
Learned counsel for the petitioners mainly contended that the petitioners having paid all the requisite installments well in time and having committed no default, have become full owners of the plots and the respondents had no authority to cancel the allotment of the plots in question. The learned counsel also submitted that petitioners were condemned unheard as neither any show-cause notice was issued to them nor any opportunity of hearing was afforded to them and thus the impugned orders have been passed at the back of the petitioners, which are liable to be struck down being in violation of the principle of natural justice. The learned counsel prayed that the subject plots may not be put to auction or alienate it in any manner till the decision of the writ petition. The submissions of the learned counsel do not carry weight.
The jurisdiction conferred on this Court by Article 199 of the Constitution is an extra-ordinary jurisdiction, which can be invoked only to meet extra ordinary situations. This jurisdiction is never meant to be treated as an additional or as "another" remedy provided by law. It was essentially for this reason that Article 199 of the Constitution specifically provide it that this Court shall have jurisdiction under the said provision of the constitution only when the law from which a matter emanated did not provide any other adequate remedy to cater for the problem in issue. Therefore, the prime question in every case of Article 199 of the Constitution as also in the present case is whether an aggrieved person who resorts to the Constitutional jurisdiction of this Court, has or has not any other adequate remedy available to him under the law. Where it was open to an aggrieved person to move another forum or tribunal for his remedy in the manner prescribed in a statute, High Court would not be entertaining petition under Article 199 of the Constitution, permit the machinery provided in a statute to be byepassed. Primarily, it was discretion of the Court to grant or refuse the relief if it was satisfied that an aggrieved party could have an alternate remedy elsewhere. Relief under Article 199 of Constitution was not to be provided where alternate remedy existed unless there was any exceptional reasons warranting exercise of extra ordinary power under Article 199. Exceptional circumstances being that order was wholly without authority, without jurisdiction or the functionary acted malafide or in unjust manner. Existence of alternative remedy by way of appeal or revision was no bar if the case fell in the exceptional circumstances. Rule of alternative remedy is rule of discretion. Needless to emphasize that exercise of Constitutional jurisdiction is discretionary and the same is to be used in good faith having looked at all the attending circumstances and relevant factors of the case. Such discretion is to be used in just, fair and reasonable ways.
In the instant case, we find that alternative remedy by way of filing civil suit in a competent Court of law was available to the petitioner but he has opted not to approach the Civil Court and instead invoked the constitutional jurisdiction of this Court. In view of the availability of the alternative remedy, the petitioner cannot be allowed to ventilate his grievance through Constitutional petition bypassing the competent Court of law. Further, assertions of the petitioner revolve around factual dispute, truthfulness or otherwise of which cannot be determined without inquiry and recording of evidence and this Court is not permissible in Constitutional jurisdiction of this Court, in view of the law laid down by Hon'ble Supreme Court of Pakistan in the case of Muhammad Younas and 12 others vs. Government of NWFP through Secretary Forest and Agriculture Peshawar, (1993 SCMR 618).
The writ petition having been found destitute of substance, stands dismissed in limine.
(A.A.) Petition dismissed
PLJ 2006 Peshawar 116
Present: Ijaz-ul-Hassan, J.
HIDAYATULLAH KHAN--Petitioner
versus
AJMAL KHAN--Respondent
C.R. No. 1505 of 2004, decided on 30.9.2005.
(i) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 117, 118--Civil Procedure Code (V of 1908), S. 115--Initial burden of proof on question of fact--No illegality, legal infirmity, non-reading or misreading of evidence pointed out--Effect--Initial burden of proof of fact would be on that party which alleges such fact--Plaintiff could not take advantage of short comings of defendant's case--Courts below have rightly proceeded to hold that plaintiffs have failed to produce sufficient evidence to substantiate their claim--No misreading, non-reading, illegal exercise of jurisdiction or lack of jurisdiction in trial Court having been pointed out, interference in concurrent findings of fact, recorded by Courts below was not warranted and the same was refused. [Pp. 118 & 119] A & C
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 31--Objection regarding non-compliance of provisions of O. XLI, R. 31 C.P.C.--Appellate Judgment must state points arising for determination, decision thereon and reasons for such decision--Appellate Court had fully attended controversy involved and points arising for determination and decision thereon--Impugned judgment of Appellate Court being in consonance with O.XLI, R. 31 C.P.C. the same was maintained. [P. 119] B
PLD 1993 Peshawar 127; 2000 CLC 15; PLD 2000 Lahore 385; PLD 2005 Peshawar 19; PLD 2005 Peshawar 69; 2005 CLC 1032; 2000 SCMR 346; 2000 SCMR 329; PLD 1994 SC 291 and PLD 2002 SC 293, ref.
Mr. Fida Gul Khan, Advocate for Petitioner.
Mr. Khalil Khan Khalil, Advocate for Respondent.
Date of hearing : 23.9.2005.
Judgment
This revision petition under Section 115 CPC is directed against concurrent findings of fact recorded by the trial Court in Civil Suit No. 130/1 of 2000 and the Court of appeal in Civil Appeal No. 77/13 of 2004, whereby suit for declaration and permanent injunction instituted by petitioners against the respondents was dismissed.
The facts, briefly stated are, that Hidayatullah Khan and others, plaintiffs instituted suit on 2.3.2000 in the Court of Senior Civil Judge/Aala Illaqa Qazi, Buner at Daggar, against Ajmal Khan and others, defendants for declaration to the effect that plaintiffs were owners in possession of suit land (detailed in the plaint), having inherited the same from their forefathers and entries in the revenue record were illegal, void and inoperative on the rights of the plaintiffs. The plaintiffs also prayed that defendants be restrained to eject the plaintiffs from suit land or alienate the same in any manner. By way of alternative relief, possession of suit land was also sought in case plaintiffs were not found in possession of the same.
The suit was resisted by Defendants Nos. 1, 2 and 3, on different grounds, like limitation, estoppel and non-availability of cause of action. On the basis of the pleadings of the parties, following issues were framed for trial:--
After recording such evidence as the parties wished to adduce, learned trial judge by his judgment and decree dated 12.6.2002, dismissed the suit, holding that plaintiffs have not been able to prove their ownership and possession over the property in suit. The plaintiffs, feeling aggrieved, filed an appeal before learned District Judge Buner, which was assigned to learned Additional District Judge for adjudication, who also arrived at the same conclusion, vide judgment and decree dated 14.10.2004. The aforesaid judgment and decree is under assailance before this Court through the present revision petition.
Arguing the case on behalf of petitioners, Mr. Fida Gul, Advocate, while assailing the impugned judgments and decrees of the Courts below, vehemently submitted that the learned trial Court did not appreciate evidence, both oral and documentary available on file and illegally dismissed suit of the petitioners. The learned appellate Court also did not peruse the record of the case and dismissed the appeal on the basis of surmises and conjectures. Additionally, he urged that the impugned judgment of the appellate Court does not substantially comply with the requirements of Order XLI, Rule 31 CPC and thus the impugned judgment is not in accordance with law. In this regard, reliance was placed on Atta Muhammad vs. Nasiruddin (PLD 1993 Peshawar 127), Province of Punjab through Collector, Rulia (2000 CLC 15) and Saleem Akhtar vs. Nisar Ahmad (PLD 2000 Lahore 385).
In reply, Mr. Khalil Khan Khalil Advocate, representing the respondents, in his short submissions argued that the concurrent findings of facts were recorded by both the Courts below which are based on proper appreciation of evidence oral and documentary, produced by the respective parties before the learned Trial Court. No case of misreading and non-reading of evidence has been made out, neither any legal infirmity has been pointed out by the learned counsel even during the arguments, nor illegal exercise of jurisdiction nor failure of exercise of jurisdiction by both the Courts below has been attributed. To substantiate the pleas, reliance was placed on Abdul Waheed vs. Muhammad Bilal (PLD 2005 Peshawar 19), Haji Muhammad Ameen vs. Messrs Frontier Ceramics Ltd. Peshawar (PLD 2005 Peshawar 69) and Sikandar Ali vs. Haji Abdul Karim and others (2005 CLC 1032).
The contentions of the learned counsel for the parties have been examined in the light of evidence produced by them. It may be stated at the outset that proof of an oral transaction the beneficiary because the negative is not capable of proof. It is well settled principle of law that the initial burden of proof of a fact is on the party which alleges it. It needs no reiteration that plaintiff cannot be benefited from short comings of defendant's case. In the instant case, the trial Court has rightly proceeded to hold that plaintiffs have failed to produce sufficient evidence to substantiate their claim. The case of plaintiffs was doubtful and the entire evidence of plaintiffs was self contradictory and highly discrepant. The appellate Court had valid reasons to concur with the findings of the trial Court and dismiss the appeal. The mere assertion of the petitioners that they were owner in possession of suit land by virtue of inheritance and the entries in the revenue record, contrary to it, were illegal and void and result of collusion between the respondents and the revenue officials, without a positive attempt on their part to substantiate the same, is of no consequence. This Court has very limited jurisdiction to reverse the findings of First Appellate Court while exercising powers under Section 115 CPC unless and until the same is result of misreading and non-reading of evidence or any violation of the principle laid down by the superior Courts.
Adverting to the objection regarding non-compliance of provisions of Order XLI, Rule 31 CPC, it needs no emphasis that an appellate judgment should state the points arising for determination, its decision thereon and the reasons for its decision. It is necessary for the appellate Court to record the points for determination, so that it can be determined whether the Court has dealt with all the points. The appellate Court must state its reasons for the decision. The provisions of Order XLI, Rule 31 CPC ware mandatory.
In the instant, I find that the appellate Court has fully attended the controversy involved and stated the points arising for determination and its decision thereon. The impugned judgment is in consonance with the material on record and provisions of Order XLI, Rule 31 CPC are not found to have been violated in this case. The parties were fully alive to the controversy involved and they were given reasonable opportunity to produce evidence in support of their respective contentions.
The Courts below have properly appreciated the evidence available on record and I have not been able to find out any misreading/non-reading of evidence or any material irregularity or any jurisdictional error or defect warranting interference in the concurrent findings of the Court of competent jurisdiction. Abdur Rahim and another vs. Mst. Jantay Bibi and others (2000 SCMR 346), Haji Noor Muhammad vs. Abdul Ghani and 2 others (2000 SCMR 329), Haji Muhammad Din vs. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rashid Ahmad vs. Muhammad Siddique (PLD 2002 SC 293).
For the aforesaid facts and reasons, no error of law having been pointed out, I find no merit in this revision petition or justification to interfere with the concurrent findings of fact, which do not suffer from any inherent infirmity or legal and jurisdictional error. The revision petition having been found bereft of substance is dismissed, with no order as to costs.
(A.A.) Revision dismissed
PLJ 2006 Peshawar 119
Present: Ijaz-ul-Hassan, J.
IRAN GUL and others--Petitioners/Defendants
versus
Mst. ZEENAT BIBI and others--Respondents/Plaintiffs
C.R. No. 635 of 2004, decided on 7.10.2005.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. XLI, R. 31--Findings of facts recorded by two Courts below, assailed--Findings of fact recorded by trial Court and affirmed by Appellate Court were based on correct and fair appraisal of evidence--Grounds urged stood conclusively determined by judgments of Courts below--Where Trial Court has exercised jurisdiction which was upheld by Appellate Court, High Court would seldom interfere unless and until discretion has been exercised arbitrarily--High Court has very limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under S. 115 C.P.C. unless and until judgments of Courts below were outcome of misreading or non-reading of evidence or decision of case was in violation of para meters prescribed by Superior Courts--Defendant's claim that provisions of O. XLI, R. 31 C.P.C. were not complied with by Appellate Court while deciding appeal was not borne out from impugned judgment--Appellate Court in its judgment was recorded findings on each and every point--Judgment of Appellate Court has been recorded keeping in view, provisions contained in O. XLI, R. 31 C.P.C.--Revision against concurrent findings of Courts below being destitute of merit was dismissed. [Pp. 121 & 122] A
2004 CLC 8 and 2004 CLC 231, ref.
Mr. Amjad Zia, Advocate for Petitioner.
M/s. Naqeebullah Khattak and Asil Khan Khattak, Advocates for Respondents Nos. 1 to 5 on pre-admission notice.
Date of hearing : 7.10.2005.
Order
This civil revision is directed against the judgment and decree dated 28.1.2004, passed by learned Additional District Judge, Karak, whereby the appeal arising from judgment and decree dated 18.7.2002, passed by learned Civil Judge, Karak has been dismissed.
Briefly stated the facts are, that Mst. Zeenat Bibi and others plaintiffs, instituted suit on 25.9.1999 for declaration to the effect that Mutation No. 10141, attested on 13.9.1973 is the result of fraud, ineffective against the rights of plaintiffs and liable to cancellation. They also prayed for possession of suit property.
Defendant No. 1 contested the suit and submitted the written statement. He claimed to have purchased suit property from plaintiffs for consideration. The divergent pleadings of the parties gave rise to the framing of following issues:--
Whether the plaintiffs have got a cause of action?
Whether the suit is within time?
Whether the plaintiffs are estopped to sue?
Whether suit is maintainable in its present form?
Whether the suit is wrong, baseless and against facts?
Whether the plaintiffs are entitled to the decree as prayed for?
Relief.
After recording such evidence as the parties wished to adduce and hearing respective contentions of the learned counsel for the parties, learned trial judge allowed suit vide judgment and decree dated 18.7.2002. An appeal was preferred thereagainst, which did not succeed. The appeal was dismissed vide judgment dated 28.11.2004 by learned Additional District Judge, Karak.
Learned counsel for the petitioner strenuously contended that the judgments and decrees of the Courts below are outcome of misreading and non-reading of evidence; that from the evidence it is proved that at the time of attestation of the disputed mutation, respondents were major; that petitioner/defendants have discharged their burden to prove the disputed Mutation No. 10141 attested on 13.9.1973 to be correct and the plaintiff/respondents have failed to prove the allegations of fraud against the petitioner; that no issue on the point of minority of plaintiffs/respondents has been framed and that the impugned judgment of the appellate Court is not in consonance with the requirements of Order 41, Rule 31 C.P.C. Learned counsel maintained that when issues had been framed, the appellate Court was bound to record its findings on each and every issue raised unless the findings on one of the issues obviated the necessity of giving findings on the remaining issues. In this regard reference was placed on Saifullah Khan and others vs. Muhammad Azam and others (2004 CLC 8 Peshawar) and Mst. Wajda Begum and others vs. Mst. Shamim Akhtar and others 2004 CLC 231 Peshawar.
Learned counsel for the respondents, on the other hand, supported the impugned judgments and decrees of the Courts below maintaining that the same are unexceptionable and do not suffer from any legal or factual infirmity, calling for revisional jurisdiction of this Court.
On a careful assessment of the evidence available on record, I am of the considered view that the finding of fact recorded by the trial Court and affirmed by the appellate Court are based on correct and fair appraisal of evidence and the grounds urged stand conclusively determined by the judgments of the Courts below.
It is well settled principle of law that in case the trial Court has exercised jurisdiction which is upheld by the First Appellate Court, then this Court seldom interferes unless and until the discretion is exercised arbitrarily. It is also settled principle of law that this Court has very limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under Section 115 CPC, unless and until judgments of the Courts below are outcome of mis-reading or non-reading of evidence or decision of the case is in violation of parameters prescribed by the superior Courts.
Reverting to the other objection raised on behalf of the petitioner regarding non-complaince of the requirements of Order 41, Rule 31 CPC, no doubt, it is true that the characteristic of a good judgment is that it must be self evident and self explanatory, in other words, it must contain reasons that justify conclusions arrived at and these reasons should be such that a dis-interested reader can find them convincing at least reasonable. In the instant case all the legal formalities have been duly complied with and no prejudice seems to have been caused to the petitioners. The learned appellate Court has given elaborate findings on each and every point. The judgment of the appellate Court has been recorded keeping in view the provisions contained in Order 41, Rule 31 CPC.
Having considered the matter from all angles, I find that neither any non-reading or mis-reading of evidence nor any material irregularity nor any jurisdictional defect could be pointed out to justify interference. The civil revision, having been found destitute of merit, is dismissed with no order as to costs.
(A.A.) Revision dismissed
PLJ 2006 Peshawar 122
Present: Ijaz-ul-Hassan, J.
IBADULLAH etc.--Petitioners
versus
SHER AFZAL--Respondent
Civil Revision No. 405 of 2005, decided on 14.2.2006.
(i) N.W.F.P. Pre-emption Act, 1987 (X of 1987)--
----S. 28(b)--Market Value of Property--Determination of--Appreciation of evidence--Held : Ausat Yaksala, prepared by revenue department had been rightly taken into consideration and made basis of the price of suit land--Revision dismissed. [P. 124] B
(ii) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 129(g)--Best piece of evidence--Effect--Held: There is a legal presumption that if a person does not produce an evidence it would be inferred as not favourable to him. [P. 124] A
1984 CLC 974 (Pesh); 1983 CLC 2520 (Lah.); 1990 MLD 1019 (Pesh), ref.
Mr. S.M. Attique Shah, Advocate for Petitioners.
Mr. Zia-ur-Rehman, Advocate for Respondent.
Date of hearing : 6.2.2006.
Judgment
On the basis of sale-deed dated 1.12.2001, suit land measuring 10 marlas, bearing Khasra Nos. 947 and 948, situate in Mauza Rajar, Tehsil and District Charsadda, owned by Ajmal, was purchased by Ibadullah, vendee-defendant, for an ostensible sale consideration of Rs. 70,000/-.
Sher Afzal Khan plaintiff, feeling aggrieved, instituted suit to enforce his right of pre-emption on the ground that he had preferential right of pre-emption in respect of suit land qua the vendee-defendant, who was devoid of these qualifications. He also maintained that the amount of Rs.70,000/- was fictitiously inserted in the sale-deed in order to frustrate his right of pre-emption. The suit was resisted on all grounds, legal as well as factual and the amount of Rs. 70,000/- was stated to have been fixed and paid in good faith as market price of the demised land. Out of the pleadings of the parties, relevant issues were framed and after recording such evidence as the parties wished to adduce, learned Civil Judge, Charsadda decreed the suit on payment of Rs. 70,000/- as market price of suit land, by his judgment and decree dated 20.10.2004. An appeal was preferred thereagainst, qua market price of suit land, which was accepted by learned Additional District Judge, Charsadda by judgment dated 29.1.2005 and an amount of Rs. 8,305/- was fixed as sale price of the land in question.
Ibadullah has filed instant civil revision under Section 115 CPC to call in question the judgment and decree dated 29.1.2005.
I have heard at length S.M. Attique Shah, Advocate for the petitioner and Mr. Zia-ur-Rehman, Advocate for the respondent in the light of the material on the record.
Learned counsel for the petitioner confined his arguments to Issue No. 9, relating to market price of suit land and attempted to argue that sufficient material was available on the file to prove that suit property was purchased in consideration of Rs. 70,000/- and the learned appellate Court had no justification to take contrary view and reverse the finding of the learned trial Court on Issue No. 9. The learned counsel maintained that finding returned on Issue No. 9 suffers from the vice of mis-reading and non-reading of evidence and cannot be allowed to remain intact. To supplement the contentions, reliance was place on Feroz Khan petitioner vs. Haji Abdul Salam and another respondents (1984 CLC 974 Peshawar), Noor Khan and others, Appellants vs. Muhammad Hayat Shah and others respondents (1983 CLC 2520 Lahore) and Abdul Akbar petitioner vs. Fazal Mehmood and two others respondents (1990 MLD 1019 Peshawar).
Having adjudged the matter from all angles with reference to the evidence on the record, I am of the view that the finding given on Issue No. 9 by the learned appellate Court is flawless and is not open to legitimate exception. The petitioner has not been able to satisfactorily prove that suit land was in fact purchased in consideration of
Rs. 70,000/- and this amount was actually paid by the vendee defendant to the vendor.
The sale-deed in question dated 1.12.2001 has not been satisfactorily proved.
Abbas, Kausar, Amir, Shah Afzal, Ziarat and Zahir etc. witnesses to the deed and subsequent receipts regarding payment of price of suit property, have not been proved. No reasons for withholding these witnesses have been given. It is well settled principle of law that if a best piece of evidence is available by a party, then it is presumed that the said party has some sinister motive behind it and a presumption under illustration g' of Article 129 of
Qanun-e-Shahadat Order can be drawn that had the said evidence been produce, it would have not been favourable to the party concerned. Theausat yaksala' (Ex.
PW. 1/6) prepared by Patwari Halqa, has been rightly taken into consideration and made basis of the price of suit land. The mere assertion of the learned counsel for the petitioner that the impugned finding has been recorded in a mechanical manner without application of judicial mind, without a positive attempt on his part to substantiate the same is of no consequence. The case law produced by him is distinguishable and speaks of the different situation. It is of no help to him.
In the wake of above discussion, I find that judgment of the learned Additional District Judge is well-reasoned and suffers from no legal or factual infirmity calling for interference of this Court in its revisional jurisdiction under Section 115 C.P.C. The revision petition is dismissed with no order as to costs.
(J.R.) Revision dismissed
PLJ 2006 Peshawar 124
Present: Shah Jehan Khan Yousafzai, J.
MUHAMMAD IKRAM and 4 others--Petitioners
versus
AFTAB AHMAD KHAN--Respondent
Civil Revision No. 1376 of 2004, decided on 16.12.2005.
N.W.F.P. Pre-emption Act, 1987 (X of 1987)--
----S. 13--Superior right of pre-emption--Performance of Talbs--Appreciation of evidence--Held: Plaintiffs evidence showed that all the talbs had been made but there were certain contradictions in the time and processing the notices--Approach of Civil Courts in giving effect to the minor omissions and contradictions run counter to sound judicial principles because the rules and standard for appraisal of evidence in civil cases were different from that of in criminal cases--Referred contradictions after scrutiny were found not so much material to repeal the contention regarding compliance of requisite talbs--Revision dismissed. [Pp. 127 & 128] A, B & C
Mr. Shahabuddin Burq, Advocate for Petitioners.
Mr. Gul-e-Sadbar, Advocate for Respondent (on pre-admission notice.
Date of hearing : 25.11.2005.
Order
This revision petition is directed against the decree and judgment of the learned District Judge, Charsadda in Civil Appeal No. 84/13 of 2003 dated 5.10.2004 whereby suit of the plaintiff-respondent was decreed by setting aside the decree and judgment of the learned Civil Judge dated 19.6.2003.
The respondent filed a suit in the Court of Civil Judge, Tangi in exercise of his superior right of pre-emption in respect of land bearing Khasra No. 1663/683 to 685 comprised in Khata No. 33/75 measuring 19 Kanals 12 Marlas in Mauza Kiramat Shah. The said land was mutated by way of sale in favour of defendant-petitioners through sale Mutation No. 1599 attested on 14.7.1997. The plaintiff-respondent alleged to have got superior right of pre-emption and there was no notice served upon him regarding the sale transaction. On getting the information regarding the sale he made Talb-i-Muwathibat there and then which was followed by Talb-i-Ishhad and thereafter the suit was brought before the Court as Talb-i-Khusumat. The sale consideration appearing in the sale Mutation as Rs. 500,000/- was also challenged with the contention that a sum of Rs. 200,000/- has been paid to the vendor and an exaggerated amount was fictitiously recorded in the sale mutation to deprive the plaintiff-respondent from exercising his vested right of pre-emption. The suit was contested by the defendant-petitioners through written statement and the trial Court framed the following issues arising from the pleadings of the parties:--
Whether the plaintiffs have got a cause of action.
Whether the plaintiffs has superior right of pre-emption?
Whether the Talbs have validly been made?
Whether the plaintiff is estopped to sue?
Whether Rs. 5,00,000/- have bona fidely been paid alongwith district council fee etc., as consideration for the suit property?
Market Value?
Relief.
Both the parties were allowed to adduce evidence as they wished to produce and after hearing the learned counsel for parties, the trial Court dismissed the suit of the plaintiff-respondent based on his findings on Issue No. 3. The defendant-petitioners were found to have superior right of pre-emption and the sale consideration was determined at Rs. 500,000/- actually paid to the vendor. The pre-emptor was having no cause of action for non-compliance of requisite Talbs.
Feeling aggrieved the plaintiff-respondent preferred an appeal to the Court of District Judge which was accepted vide the impugned decree and judgment.
I heard Mr. Shahabuddin Burq, counsel for defendant-petitioners and Mr. Gul-e-Sadbar Khan counsel for plaintiff-respondent on pre-admission notice. Also perused the record.
The controversy between the parties is only regarding Talbs. It is alleged by the respondent-pre-emptor that on 2.11.1997 at 9.00 a.m. he was informed by Ghulam Muhammad in his Hujra and he made Talb-i-Muwathibat there and then in the presence of the said informer. The same day he issued five notices as Talb-i-Ishhad duly signed by Ghulam Muhammad and Imdadullah as witnesses. On 3.11.1997 he has filed the suit as Talb-i-Khusumat. In their written statement, the petitioners-vendees have raised preliminary objection including the objection on Talabs to the effect that requisite talabs were not made in accordance with law. On factual side, he also denied the averments made in the plaint. No other issue was agitated before me except Issue No. 3 which reads as follows:--
"Whether the Talbs have validly been made?"
Muhammad Asghar Post Master Ziam Qala was examined as PW.2. The crooks of his deposition is the same which was stated by PW.1. He has deposed that some of the petitioners were served with a notice while some of them were reported unserved. However, the father of absentee vendor refused to receive the notice. He has produced copy of the abstract Register Ex. PW.2/8 and Ex. PW.2/9. He has also produced the unnerved A.D. Cards Ex. PW.2/10 to Ex. PW.2/18 along with his report on it.
Qadir Khan Patwari PW.3 has produced the revenue record regarding the suit land which need not be discussed in detail as there is no controversy on it. The informer and witness of Talb-i-Ishhad was produced as PW.4. He has stated that he informed the respondent/pre-emptor at 900 hours and he expressed his desire to exercise his right of pre-emption there and then. He directed his attorney namely Amin to contact the counsel for onward legal process. He along with Amin and Imdad Bacha visited the house of counsel and informed him about their visit. The said counsel provided five notices which were brought for obtaining signatures of the respondent/pre-emptor which were duly signed by him and they also signed the notices in presence of the counsel. Copies of those notices were produced as PW.4/1 to PW.4/5.
Imdadullah another witness of the notice Talb-i-Ishhad (PW.5) has also admitted his signature on the notices Ex. PW 4/1 to Ex. PW. 4/5 and has supported P.W. 4 on all material aspects.
Aminullah appeared in his capacity as attorney for respondent/pre-emptor as PW.6 and he has narrated the story put forward by PW.4 and the averments made in the plaint.
In rebuttal the petitioners have produced Madar Khan DW.1 in whose presence the impugned Sale Mutation No. 1599 was attested on 14.7.1997 and in his presence Rs. 500,000/- as sale consideration was paid to Muhammad Nawaz Khan, the vendor. Abdul Hakim father of minor Petitioners 4 and 5 as well as Petitioners 1 to 3, his major sons, the vendees. In nutshell, he has disclosed the process of attestation of sale mutation and prayed for dismissal of the suit. However, he has admitted that no public notice was issued before the transaction as required by law. No other evidence was produced in defence. However, Fida Muhammad was produced as ADW.1 through whom Khasra Girdawari for Kharif 1998 to Rabi 2000 Ex.ADW.1/1 was produced. The trial Court after referring to certain contradictions in the statements of PWs found the respondent/pre-emptor non-suited for the grant of decree as the factum of demands was not established satisfactorily. On appeal the appellate Court reversed the finding and granted the requisite decree to the respondent/pre-emptor.
The respondent/pre-emptor has produced sufficient evidence to discharge his liability regarding requisite demands. The plaintiff's evidence is evident to show that all the Talbs were made but there were certain contradictions in the time and processing the notices. A question arises whether minor contradictions would deprive a party to the suit when otherwise he succeeded in establishing the basic requirements of Talbs. In this respect counsel for respondent has produced certain reported judgments to substantiate his contention. The minor contradictions cannot become hurdle in the way of granting decree. In case of Abdul Qayum vs. Mushk-e-Alam (2001 SCMR 798) it was held as follows:
"The witnesses were making statements after lapse of considerable period from the date of Talb-e-Muwathibat, therefore, they were not expected to remember each and every minor details as to time. These were natural variations, which a human being in the ordinary course of business would certainly make which do not in any way detract from the veracity of their evidence. It is also clear from the statements of these witnesses that notice in relation to talb-i-Ishhad was given after five days of acquiring knowledge of sale by he plaintiff and making of Talb-i-Muwathibat. Copy of the notice is available on the record which was issued on 7.11.1997, therefore, the correctness of the statements was proved that the same was issued after five days of Talb-i-Muwathibat."
In Mst. Gohar Sultan vs. Gul Waris Khan (PLD 2003 Peshawar 189) it was observed that minor contradictions with regard to Talabs especially when statements of the witnesses were recorded after long time would be ignored. In Yar Muhammad Khan vs. Bashir Ahmed (PLD 2003 Peshawar 179) it was held that taking into consideration minor omissions and contradictions in the statements of witnesses of the pre-emptor has caused grave prejudice. The approach of the Civil Courts in giving effect to the minor omissions and contradictions run counter to sound judicial principle because the rules and standards for appraisal of evidence in civil cases were different from those employed in criminal cases as the law has laid down different stands of proof for different categories of cases. In criminal cases accused is always presumed to be innocent unless his guilt is proved beyond any shadow of doubt, but in civil cases the Court has to reach the crux of the matter and minor contradictions or omissions having no substance are to be ignored.
At some stage of the arguments learned counsel for petitioners also agitated that the respondent/pre-emptor was himself not present during those days and he was wrongly represented by attorney in the trial Court. Neither the petitioners have raised this objection in written statement nor any issue was framed nor any evidence to that effect was adduced at the trial Court. On this score, the contention can be repelled. Even this phenomena was examined in Muhammad Younas vs. Mst. Mehr Afzoon (PLD 2002 Peshawar 109) and it was held that in a pre-emption suit non-appearance of the pre-emptor in the witness-box would not be fatal as the law permits a litigant to the represented through the appointed attorney and the statement of attorney recorded in the proceedings was held to have been rightly relied upon.
The learned counsel for petitioners has laid stress upon certain omissions and contradictions in the statements of PWs but those contradictions were scrutinized by the lower appellate Court and also by this Court and found not so much material to repeal the contention regarding compliance of requisite Talabs. The learned counsel has failed to lay hands on any case law wherein minor omissions and contradictions in the statements of witnesses supporting the performance of Talabs were held to be fatal for non-suiting the pre-emptor.
In the wake of the aforesaid discussion I found this revision petition devoid of substance which is hereby dismissed in limine.
(Javed Rasool) Revision dismissed
PLJ 2006 Peshawar 129 (DB)
Present: Tariq Parvez Khan, C.J. and Muhammad Qaim Jan Khan, J.
MUHAMMAD FAQIR--Petitioner
versus
DIRECTOR GENERAL, NAB (NWFP), PESHAWAR and 8 others--Respondents
W.P. No. 1866 of 2005, decided on 8.3.2006.
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 18(g)--Constitution of Pakistan 1973, Art. 247--Extention of the Ordinance to PATA--Held: The Ordinance was promulgated by President in pursuance of proclamation & Provisional Constitution Order--NWFP Local Government Ordinance was extended through Regulation, would not mean that all Ordinances during period when PCO was enforced and Constitution was not revived should have been extended through Regulation because Ordinance had an in built provision of its extent of application to the entire country including FATA and PATA--Petition dismissed. [Pp. 131 & 132] A & B
PLD 2001 SC 607.
Mian Iqbal Hussain, Advocate for Petitioner.
Mr. Hamid Farooq Durrani, DAG with Mr. Muhammad Saeed Khan, AAG for Respondents.
Date of hearing : 8.3.2006.
Order
Tariq Parvez Khan, C.J.--Petitioner herein is a Senior Clerk and hails from Tehsil Kalam District Swat which is part of PATA (Provincially Administered Tribal Area).
Director General NAB (National Accountability Bureau) N.W.F.P. Peshawar has filed a Reference against the petitioner under NAB Ordinance 1999, hereinafter referred to as Ordinance.
Petitioner has challenged the filing of Reference against him on two grounds, firstly that Ordinance is inapplicable to the Areas/Territories forming part of PATA and secondly that Ordinance XXIV which has brought about amendment in Section 18(g) of the Ordinance, both having been not extended to PATA as required under Article 247 of the Constitution of Islamic Republic of Pakistan 1973 cannot be enforced against him because of his residence in PATA.
Contention of learned counsel for the petitioner is that under Article 247 of the Constitution no Act of Parliament shall apply to PATA unless so directed by the President through a regulation if it was a Federal Law, and if Provincial Law by the Governor of the Province so directed by the President.
His submission is that despite proclamation of emergency in October 1999 when the country was ruled and governed under the Proclamation Order I of 1999 and Proclamation Emergency of 1999 but it was so required under PCO-I of 1999 that it shall be governed as nearly as may be but in accordance with Constitution.
His next submission is that notwithstanding the Constitution being put in abeyance or inoperative but all steps taken during the enforcement of Proclamation Order and Proclamation of Emergency should have been inconsonance with the mandate of the Constitution i.e. Laws/Ordinances made during such period are/were required to be extended to the PATA as envisaged under Article 247 of the Constitution.
His contention is that despite validation given to laws by insertion of Article 270-AA of the Constitution still certain Ordinances including N.W.F.P. Local Government Ordinance, 2000 was extended to PATA through Regulation.
His view is that in view of Constitutional command no Act of Parliament be if Federal or Provincial can be enforced in PATA unless extended through Regulation.
His submission is that where Constitution was practically put in abeyance so would be Article 247 of the Constitution. Learned Deputy Attorney General has referred to Section 4 of the Ordinance wherein it has been expressly mentioned that it extends to whole of Pakistan including FATA (Federally Administered Tribal Areas) and PATA (Provincially Administered Tribal Areas).
His contention is that Ordinance on its own force stood extended, therefore, was not required to be extended through a Regulation. Regarding amendment brought in Ordinance whereby Section 18(g) was amended through Ordinance XXIV on 5th July 2000 would also stands extended and applicable to PATA not only because the parent law was enforced in PATA but also because legal scenario remained the same as was in 1999 i.e. country was run under PCO-I read with powers of the Chief Executive derived under Proclamation of Emergency and the Constitution was not revived.
Section 4 of the Ordinance reads as under:--
"Application:--It extends to the whole of Pakistan and shall apply to all persons in Pakistan, (all citizens of Pakistan) and persons who are or have been in the service of Pakistan whenever they may be, including areas which are part of Federally and Provincially Administered Tribal Areas".
Under unamended Section 18 a Reference could be filed by Chairman NAB but after its amendment it can also be by any other officer other than Chairman NAB if duly authorized by the Chairman to assess the material before him and if sufficient material is found could file Reference.
Section 4 of the Ordinance was left as it is and so was the authority and delegation of powers of Chairman NAB as given in Section 18 of the Ordinance.
The Ordinance was promulgated by the President and while so promulgating, it was said that the same is in pursuance of Proclamation and Provisional Constitution Order and in exercise of all powers enabling him in that behalf.
There can be no dispute that until the Constitution was revived, the President had unfettered powers on strength PCO-I and Proclamation of Emergency Order to legislate through Ordinances.
As during the period Ordinance was promulgated, followed by amendment through Ordinance XXIV on 5th of July 2000 Article 247 of the Constitution was non-operative, therefore, it was not required that the Ordinance or the subsequent amendment made during the period when Article-247 of the Constitution was inoperative, the laws/Ordinances made or issued by the President should have been extended through a Regulation.
Mere fact that some laws like N.W.F.P. Local Government Ordinance was extended through Regulation would not mean that all Ordinances during the period when PCO was enforced and Constitution was not revived should have been extended through Regulation. The short reason would be that NAB Ordinance unlike N.W.F.P. Local Government Ordinance, 2001 had in built provision of its extend of application to the entire country including FATA and PATA.
We are, therefore, of the view that of the contention raised by learned counsel for the petitioner is devoid of any legal force and the result would be that this petition is dismissed in limine.
(Javed Rasool) Petition dismissed
PLJ 2006 Peshawar 132 [Abbottabad Bench]
Present: Dost Muhammad Khan, J.
ABDUL LATIF--Petitioner
versus
SHOUKAT ALI and 2 others--Respondents
C.R. No. 328 of 2005, decided on 14.3.2006.
N.W.F.P. Pre-emption Act, 1987--
----Ss. 9 & 20--Distribution of property among more than one pre-emptors--Held: Division of property amongst the pre-emptor vis-a-vis the vendee or amongst pre-emptors should be divided on equal basis, and no one should be given an edge over the other--Principle of justice and rule of propriety demanded that numerical strength of pre-emptors or that of the vendees would require that property be divided equally but per capita so that each one is placed in the same position, otherwise it would cause miscarriage of justice--Petition dismissed. [P. 134] A & B
1992 MLD 1570, ref.
Mr. Muhammad Ayub Khan, Advocate for Petitioner.
Mr. Muhammad Ilyas Khan, Advocate for Respondents.
Date of hearing : 14.3.2006.
Judgment
Suit land was sold to the petitioner on 2.9.2000 vide Mutation No. 1046 which was pre-empted by the respondents-plaintiffs who are mother and sons respectively, three in number. The learned S.C.J. vide impugned judgment and decree dated 18.5.2004 granted decree to Respondent No. 1 Shaukat Ali but refused the same to Muhammad Rafique his brother and Mst. Qabal Jan being their mother on the simple ground that albeit the first talab was jointly made on one and the same place, date and time by the pre-emptors but for issuance of notice talb-i-ishhad they appointed Shaukat Ali as their attorney on the date on which the notice was issued. In view of the trial Court it was incumbent upon all the pre-emptors to have signed the notice before appointing Shaukat Ali.
Aggrieved from the said judgment and decree vendee filed Appeal No. 40/13 of 2004 while pre-emptors-plaintiffs Muhammad Rafique and Mst. Qabal Jan filed Appeal No. 45/13 of 2004 and the learned District Judge Batagram through consolidated judgment given in the former appeal granted decree to Muhammad Rafique and Mst. Qabal Jan pre-emptors as well by holding that the appointment of the attorney and issuance of notice talb-i-ishhad by him thereafter, was valid as he was duly authorized to issue the same. In this regard the learned District Judge has relied on the view taken by this Court in C.R. No. 141 of 2003 titled Mst. Roshan Jan vs. Muhammad Maroof. The view taken by the learned District Judge on this point is well placed and is in accord with the settled rule regulating and specifying the principal and agent relationship both under the relevant chapter of the Contract Act and the provisions of the Power of Attorney Act.
As pre-emptor Shaukat Ali has made the first talab jointly at the same time with co-plaintiffs, i.e., Muhammad Rafique his brother and Mst. Qabal Jan his mother, therefore, he was a witnesss to the said fact as well. He was a competent witness to depose in this regard in view of the provision of Article 71 of the Qanoon-e-Shahadat Order, 1984 which makes the oral evidence of such a witness admissible. The relevant para of the above provision is reproduced below:--
"S. 71... Oral evidence must be direct. Oral evidence must, in all cases what ever, be direct, i.e., to say;
(i) Not relevant.
(ii) if it refers to a fact which could be heard, it must be the evidence of a witness who says that he heard it'.
Rest also not relevant."
Thus the attorney was competent to issue the notice talb-i-ishhad and had the competency under written deed of authority to depose at the trial on behalf of the co-plaintiffs. Thus the testimony so given by him does not suffer from any legal infirmity.
The learned counsel for the petitioner was considerably vehement and criticized the ratio/mode on basis of which the pre-empted property was distributed amongst the petitioner-vendee and the three pre-emptors, i.e., 1/4 and 3/4 share. He emphatically argued that Section 20 of the N.W.F.P. Pre-emption Act, 1987, contemplates that in a case a pre-emptor and vendee have equal right then the division of the property amongst them shall have to be divided in equal shares and not on per capita basis as held by the honourable Lahore High Court in Feroz Khan and another vs. Ahmad Yar (1992 MLD 1570) and that the number of pre-emptors if is taken to be the determining factor then the principle of equal division of the property amongst the persons having equal right of pre-emption would stand defeated and great disparity would crop up which in his view is not the intention of the legislature.
In the provision of Section 20 of the Act ibid, the words pre-emptor and vendee have been used in singular and not in plural and it was in this context that reference has been made to equal division of property if both are possessed of equal right of pre-emption. However, Section 9 of the Act 1987 ibid, add to and supplement the provision of Section 20 of the Act which is reproduced below:--
"Section 9. Method of distribution of the property where more than one person are equally entitled....Where more than one persons are found by the Court to be equally entitled to the right of pre-emption, the property shall be distributed among them in equal share."
More conspicuous is the word person used in this provision as neither it refers to the pre-emptor or the vendee having equal right of pre-emption. The necessary coroally and inference, therefore, would be that the division of property amongst the pre-emptor vis-a-vis the vendee or amongst the pre-emptors themselves if they are more than one shall be divided equally on equal basis and no one should be given an edge over the other. The arrangement provided by the said provisions of law are based on principle of equity, therefore, the Court has to place reasonable and workable construction on the same in line with the settled principle of equal treatment. It shall not be construed in a manner to create mischief or to place one party or the other in disadvantageous position violating the principle of equity. Unless it is established that all the pre-emptors have the common, inseparable and similar interest then in ordinary course, under the law very one has independent right irrespective of their close relationship inter se. The same would be the case of the vendee having equal right of pre-emption like pre-emptor(s). To ensure fair play, principle of justice and rule of propriety therefore demands that the numerical strength of the pre-emptors or that of the vendees would require the Court to distribute the property equally but per capita so that each one is placed in the same position in which the other is placed otherwise division of the suit property as proposed by the learned counsel for the petitioner on the pattern half and half between the three pre-emptors and the solitary vendee would cause miscarriage of justice attracting the element of discrimination, disparity and unequal treatment before law of the persons similarly placed and possessed of independent and individual right of pre-emption, more so, when the statutory law itself has created no exception in this regard.
(Javed Rasool) Petition dismissed.
PLJ 2006 Peshawar 135
Present: Talaat Qayyum Qureshi, J.
Mst. RUKHSANA BEGUM--Petitioner
versus
Mst. ULFATA etc.--Respondents
C.R. No. 1046 of 2005, decided on 31.3.2006.
Limitation Act, 1908 (IX of 1908)--
----S. 8--Specific Relief Act, (I of 1877), S. 8--Plaintiff attained majority on 25.10.1979 and suit was filed on 24.9.1987 containing prayer for decree of possession--As suit could be filed within 12 years so it was found within time. [P. 137] A & B
1994 CLC 1240; PLD 2004 Lah. 255 & PLD 1994 SC 462, ref.
Mr. Amjad Zia, Advocate for Petitioner.
Mr. Nasir Khan Khalil & Mr. Assad Jan, Advocates for Respondents.
Date of hearing : 31.3.2006.
Judgment
Mst. Ulfata, Respondent No. 1/plaintiff filed suit against the petitioners/defendants and others for declaration, perpetual injunction and in the alternate for possession of the suit property mentioned in the heading of the plaint. The said suit was resisted by the petitioners/defendants by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties dismissed of the Respondent No.1/plaintiff vide judgment and decree dated 28.10.2004.
Feeling aggrieved with the said judgment and decree, Respondent No.1/plaintiff filed Appeal No. 9/13 of 2005 in the Court of learned Additional District Judge-XIV, Peshawar. The said appeal was allowed vide judgment and decree dated 6.6.2005 and the suit filed by her was decreed in her favour.
Being not contented with the judgment and decree dated 6.6.2005 passed by the learned Appellate Court, the petitioners/defendants have filed the revision petition in hand.
Mr. Amjad Zia, Advocate the learned counsel representing the petitioners/defendants argued that the suit filed by Respondent No. 1/plaintiff was barred by time. She attained majority on 25.12.1979 whereas initial suit was filed on 24.9.1987 and the amended plaint was filed on 25.6.1990 under Section 8 of the Limitation Act she could file the suit within three years of attaining her majority but the learned Appellate Court failed to appreciate this legal position. Reliance was placed on (1994 CLC 1240).
It was also argued that the petitioners/defendants have raised construction spending lacs of rupees and in case of passage of decree in favour of the plaintiff, the petitioners were entitled for the compensation or the actual price of the constructed area but this aspect of the case was over looked by the learned Courts below.
It was further argued that the petitioners are the bonafide purchasers of the suit property having purchased from one Salahuddin whose name appeared in the revenue record and after clarifying about his title, the petitioners purchased the property in dispute after paying considerable sale consideration to the vendor, therefore, their rights are protected under Section 41 of the Transfer of Property Act.
On the other hand Mr. Nasir Khan Khalil, Advocate the learned counsel representing Respondent No. 1/plaintiff argued that the Mutation No. 1713 was attested on 5.12.1974 in favour of Qudratullah and it has been established on record that at the time of attestation of the said mutation Respondent No. 1/plaintiff was minor. This fact has also been admitted by the learned trial Court and its findings were not challenged by the petitioners/defendants in appeal, therefore, the same have attained finality.
It was also argued that the attestation of mutation mentioned above was illegal and void ab initio act of the petitioners/defendants, there-fore, no limitation would run against Respondent No. 1/plaintiff to challenge the same. Reliance in this respect was placed on (PLD 2004 Lahore 255).
It was also argued that the mutation was wrongly and illegally attested, therefore, no period of limitation would run against the Respondent No.1/plaintiff. Reliance in this regard is placed on (PLD 1994 Supreme Court 462).
About the improvements, the learned counsel argued that there is no evidence available on record to show that the petitioners/defendants have made any improvements. The D.W. was silent in this regard, therefore, the learned Appellate Court did not grant any improvements.
Mr. Assad Jan, Advocate the learned counsel representing Respondent No. 2 argued that the learned trial Court had rightly dismissed the suit filed by Respondent No. 1/plaintiff but the learned Appellate Court committed illegality and it did not appreciate the evidence available on record. Mutation No. 1713 was attested by the Respondent No.1/plaintiff herself and she had thumb impressed the same. He further argued the Courts below were at variance, therefore, the revision petition be admitted to regular hearing.
After haring the learned counsel for the parties, I admit the revision petition in hand to regular hearing and since full arguments in the case had been addressed by the learned counsel for the parties, therefore, on their request, I proceed to decide the same on merits today.
The argument of the learned counsel for the petitioners/defendants that the suit filed by Respondent No. 1/plaintiff was barred by time as under Section 8 of the Limitation Act and the suit could be filed within three years of attaining her majority has no force. Respondent No. 1/plaintiff admittedly attained majority on 25.10.1979. In this regard School Leaving Certificate was placed on record as Ex. PW3/2. She filed suit on 24.9.1987. Similar question came up for hearing before the august Supreme Court of Pakistan in case "Moolchand and 9 others vs. Muhammad Yousaf (Udhamdas) and 3 others" (PLD 1994 Supreme Court 462), in which it was held:--
"After reading the case-law mentioned in the preceding paragraph and language used in Sections 6 and 8 of the Limitation Act, we feel inclined to form the view that combined effect of Sections 6 and 8 to enable a person who has been dispossessed during his minority to file a suit within three years of his attaining majority or within usual period of time ordinarily allowable to a major, which is longer. If minor attains majority after three years of cause of action he can sue within nine years from the date of attaining majority if period of limitation is 12 years".
"The reading of the provisions of Sections 6 and 8 of the Limitation Act shows that provisions of Section 8 provide exception to a person suffering under disability like a minor from the limitation provided under Section 6 read with Ist Schedule of the Limitation Act. Such person on attainment of majority or cessation of disability can life suit within the period of limitation provided in the Ist Schedule of the Limitation Act if such period had not expired. If period of such limitation had elapsed, such person also had a maximum period of three years from attainment of majority/cessation of disability to file the suit....."
The suit in hand, as mentioned above, was filed on 24.9.1987 which contained prayer for decree for possession also. Under Article 142 of the Ist Schedule of the Limitation Act, suit for possession could be filed within a period of 12 years. The suit filed by Respondent No.1/plaintiff was, therefore, within time.
The argument of the learned counsel for Respondent No. 1/plaintiff that attestation of Mutation No. 1713 Ex. PW2/1 on 5.12.1974 in favour of Qudratullah and others was illegal and void ab initio has a force in it. It has been established on record that at the time of attestation of the above mutation, Respondent No. 1/plaintiff was hardly 13 years old and thus was admittedly under a legal incapacity under Section 11 of the Contract Act to enter into the sale transaction or consent to sale on her behalf. At the time of sale transaction, Respondent No. 1/plaintiff had not attained the age of 18 years to be sue-juris for validly entering into a sale contract and the sale transaction was thus void ab initio and had no legal existence.
The argument of the learned counsel for the petitioners/defendants that the petitioners/defendants are bonafide purchasers of the suit property having purchased from one Salahuddin, therefore, their rights were protected under Section 41 of the Transfer of Property Act has no force firstly; because no rights or liabilities as claimed by the petitioners/defendants arose from such a void transaction. The said transaction was incapable of enforcement and the petitioners/defendants could not even to set up a valid defence plea to claim a right or title as the alleged original purchaser had no title to pass to the subsequent vendees i.e. the petitioners/defendants.
Secondly; the protection under Section 41 of the Transfer of Property Act, it is well-settled principle of law, is not extendable in the cases of transaction which are void ab initio.
The argument of the learned counsel for the petitioners/defendants that the petitioners/defendants have spent huge amount on the improvements/construction of the suit property but the learned Appellate Court ignored the same, has also no force. Suffice it to say that the petitioners/defendants did not produce any evidence to show as to what amount was spent on the construction and how much construction was made in the suit property. Zahir Shah was examined as D.W. 1 as attorney of Defendants Nos. 4 & 5 stated that there was construction on the property which was made by spending a huge amount. Except this vague statement there is nothing on record on the basis of which the petitioners/defendants could claim the amount of alleged improvements made by them.
The learned Appellate Court has properly appreciated the evidence available on record and I have not been able to find out any mis-reading/non-reading of evidence or any illegality or any material irregularity or jurisdictional error or defect warranting interference in the impugned judgment of the learned Appellate Court. Resultantly, the revision petition is dismissed. There shall be no order as to costs.
(Javed Rasool) Revision dismissed
PLJ 2006 Peshawar 139 (DB)
Present: Shah Jehan Khan and Salim Khan, JJ.
Syed KAMAL HUSSAIN SHAH CIVIL JUDGE/JUDICIAL MAGISTRATE, PRESENTLY POSTED AS ILAQA QAZI CHITRAL--Petitioner
versus
GOVERNMENT OF N.W.F.P. through SECRETARY FINANCE CIVIL SECRETARIAT, PESHAWAR and 9 others--Respondents
Writ Petition No. 1326 of 2002, decided on 17.3.2006.
Fundamental Rules--
----R. 22(b)--Entitlement of increment & pensionary benefits--Relaxation--Petitioner was appointed as Civil Judge-Cum-Judicial Magistrate on the contract basis--Issued of his pay & increment--Held: Question of grant of increment during period of appointment on contract basis for one year had already been settled in F.R. 22--As an increment was not to be granted while performing duties on contract basis, the increment on the old post was to be given and that was to be considered as increment because that would be the only increment and the question of minimum increment between the two increments did not arise--Petition allowed.
[P. 142] A
Mr. Abdul Samad Khan, Advocate for Petitioner.
M/s. Muhammad Saeed Khan, AAG and Salahuddin Khan, DAG for Respondents.
Date of hearing: 1.3.2006.
Judgment
Salim Khan, J.--Syed Kamal Hussain, the then Enquiry Officer (BPS-17), was relieved on 24.9.1995 by the Directorate General of Registration, Islamabad, (his parent Department) to join the post of Civil Judge-Cum-Judicial Magistrate on contract basis for a period of one year. He was allowed the right of reversion to his parent Department. On audit objection regarding his initial substantive pay as well as the initial pay of the post of Civil Judge-Cum-Judicial Magistrate, he was directed to get relaxation of F.R.22(b). It was contended by him that the case was proceeded by the Finance Department and Honourable the Chief Justice of Peshawar High Court, vide his order conveyed on 4.12.1995, granted the said relaxation and the order was implemented, but the District Accounts Officer, Abbottabad, withheld his pay for a period of three months, which action on his part was patently tainted with mala fides, which was released on the intervention of the Registrar of this Court. The petitioner further contended that the District Accounts Officer, Abbottabad, moved further and got the order of his parent Department, that the petitioner was on contract basis and was not entitled to increment and to the pay mentioned above as result of relaxation, and the pay of the petitioner was retrenched on his transfer from Abbottabad to Bannu.
The comments of the Secretary Finance, Government of NWFP, the Accountant General NWFP, District Accounts Officers, Abbottabad and Mansehra (Respondents Nos. 1,5, 6 and 7 respectively) were obtained. The theme of comments of the respondents is that the petitioner was on contract basis, and, therefore, was entitled only to the initial pay of the contract post, but was not entitled to annual increment, and that the provisions of F.R. 22(b) of the Fundamental Rules were not applicable. We heard Mr. Abdul Samad Khan, Advocate, for the petitioner, Mr. Muhammad Saeed Khan, Addl. AG for Respondent No. 1 as well as Mr. Salahuddin Khan DAG for Respondents Nos. 2 to 4 in detail, and perused the available record.
Sub-rule (b) of F.R. 22 of the Fundamental Rules provides that if the conditions prescribed in clause (a) are not fulfilled, the employee will draw as initial pay the minimum of the time-scale. F.R. 22 of the said Rules prescribes the condition that the initial substantive pay of a Government servant who is appointed substantively to a post on a time-scale of pay is regulated as follows:--
(a) If he holds a lien on a permanent post, other than a tenure post, or would hold a lien on such a post had his lien not been suspended:--
(i) When appointment to the new post involves the assumption of duties or responsibilities of greater importance (as interpreted for the purposes of Rule 30) than those attaching to such permanent post, he will draw as initial by the stage of the time-scale next above his substantive pay in respect of the old post;
(ii) when appointment to the new post does not involve such assumption, he will draw as initial pay the stage of the time-scale which is equal to his substantive pay in respect of the old post, or, if there is no such stage the stage next below that pay plus personal pay equal to the difference, and in either case will continue to draw that pay until such time as he would have received an increment in the time-scale of the old post or for the period after which an increment is earned in the time-scale of the new post, whichever is less. But if the minimum pay of the time-scale of the new post is higher than his substantive pay in respect of the old post, he will draw that minimum as initial pay;
(iii) when appointment to the new post is made on his own request under Rule 15(a) and the maximum pay in the time-scale of that post is less than his substantive pay in respect of the old post, he will draw that maximum as initial pay.
Syed Kamal Hussain Shah was posted as Enquiry Officer (BPS-17) under the Directorate General of Registration, Islamabad. His post of Civil Judge-Cum-Judicial Magistrate was also in BPS-17. The question of difference of the time-scale of the old post and the time-scale of the new post did not arise. In this way, the question of drawing as initial pay the stage of time-scale next above his substantive pay in respect of the old post, the difference of stages of the two times-scale, the minimum pay of the time-scale of the new post being higher than his substantive pay in respect of the old post, and the maximum pay in the time-scale of the new post being less than his substantive pay in respect of the old post, also did not arise. The minimum and maximum pay of the post of Enquiry Officer (BPS-17), Directorate General of Registration, Islamabad, and the minimum and maximum pay of the post of Civil Judge-Cum-Judicial Magistrate (BPS-17) were equal.
He was drawing his salary at a certain stage of the time-scale of pay in BPS-17 against his old post. The same stage was available, neither higher nor less, for the post of Civil Judge-Cum-Judicial Magistrate. His application for the new post was departmentally forwarded, and, consequently, he was a recommendee of his parent Department. He was granted the right of reversion to his parent Department by retaining his lien there. His case fell under sub-clause (ii) of sub-rule (a) of F.R. 22, because the new post did not involve the assumption of duty or responsibility of greater importance. He was, therefore, to draw his initial pay at the stage of the time-scale which was equal to his substantive pay in respect of the old post. He had fulfilled the condition prescribed in clause (a) mentioned above and was not liable to be treated in accordance with clause (b) of F.R. 22.
The only question brought up to hinder his case was that he was appointed on contract basis, and, therefore, he was to draw the minimum of BPS-17 and was not entitled to the increment. In the Notification issued by the Services and General Administration Department (Services Wing) of the Government of NWFP, vide No. SOS-II(S&GAD) 2(ii)/98 dated 29.7.1998, appointing the petitioner at Serial No. 10 thereof, one of the terms and conditions of service of the petitioner, as in para-2(ii) thereof, was as follows:
"(ii) They will be allowed the minimum of BPS-17 (Rs. 3880-290-7360) plus other allowances as admissible under the rules. Those who are already in Govt. service and whose pay is more than the minimum of BPS-17 will be allowed to draw pay which they were drawing before their appointment as Civil Judges. Their pay shall be fixed at proper stage in BPS-17."
"They shall be entitled to draw pay at the minimum of BPS-17 with usual allowances as admissible to officers of the same status and grade."
This part of the order was against the provisions of F.R. 22. The only difference between a post on contract basis and a regular post was that a post on contract basis was for a certain period whereafter the services were to be terminated/returned and the incumbent was not entitled to pensionary benefits, while appointment on a regular post was to continue upto the age of retirement and the incumbent was entitled to pensionary benefits under the relevant rules. The question of grant of increment during the period of appointment on contract basis for one year had already been settled in F.R. 22. As an increment was not to be granted while performing duties on contract basis, the increment on the pay of the old post was to be given and that was to be considered as the increment because that would be the only increment and the question of minimum increment between the two increments did not arise.
The comments of the respondents are placed on wrong footings and on mis-interpretation of F.R. 22. Clause (b) of F.R. 22 was not applicable in the circumstances of the present case, and, even then, Honourable the Chief Justice of Peshawar High Court, on the initiation of the respondents, granted relaxation for the protection of pay of the petitioner, which amounted to correcting the defect in para 2(ii) of the appointment order dated 31.8.1995 mentioned above.
In these circumstances, we accept the present writ petition, and direct the official respondents to issue the correct pay slip to the petitioner by allowing him the initial substantive pay of the old post alongwith increment/s for the period the petitioner was serving as Civil Judge-Cum-Judicial Magistrate on contract basis.
(Javed Rasool) Petition allowed
PLJ 2006 Peshawar 142 (DB)
Present: Ijaz-ul-Hassan and Shahzad Akbar Khan, JJ.
MAQSOOD AHMAD--Petitioner
versus
SAMINA SHAHEEN and 2 others--Respondents
W.P. No. 57 of 2005, decided on 28.11.2005.
(i) Witness--
----Specific assertion made by the witness, material to the controversy of the case is not challenged in cross-examination by putting contrary suggestions, then same is to be given full credit and shall be accepted as true unless displayed by reliable, cogent and clear evidence. [P. 144] B
(ii) West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 13--Constitution of Pakistan 1973 Art. 199--Suit for restitution of conjugal rights dismissed by Courts below--Assailed--Held: Having adjudged the matter from all angles, the impugned judgments were found supported by evidence and matter had been dealt with in proper manner after application of independent mind--High Court in exercise of Constitutional jurisdiction could not interfere with the findings of fact unless it was shown suffering from misreading/non-reading which had affected the findings on merits--Petition was dismissed. [P. 144] A & C
1994 SCMR 859, ref.
Qazi Abdul Basit, Advocate for Petitioner.
Mr. Zafar Javed Durrani, Advocate for Respondents.
Date of hearing : 28.11.2005.
Judgment
Ijaz-ul-Hassan, J.--Maqsood Ahmad, petitioner filed against Mst. Samina Shaheen, respondent a Suit No. 310/FC for restitution of conjugal rights, whereas Mst. Samina Shaheen filed against him suit Bearing No. 418/FC for dissolution of marriage and the recovery of dower amount of Rs. 50,000/- dowry and maintenance etc. Both the suits were consolidated. Relevant issues were formulated. After recording such evidence, as the parties wished to adduce, Miss Kulsoom Azam, Judge Family Court, Peshawar, through judgment and decree dated 18.11.2003 dismissed the suit of the petitioner husband for restitution of conjugal rights and partially decree suit of the respondent wife qua dissolution of marriage, recovery of dower amount of Rs. 50,000/- and dowry article etc. An appeal was preferred thereagainst by the petitioner husband, which did not succeed. The same was dismissed by judgment dated 10.6.2004, passed by Additional District Judge, Peshawar. Hence instant writ petition by the petitioner husband.
We have heard Qazi Abdul Basit, Advocate for the petitioner husband and Mr. Zafar Javed Durrani, Advocate for respondent wife, in the light of the material on the file.
Learned counsel for the petitioner husband vehemently contended that impugned judgments and decrees of the Courts below, are not in consonance with the material on the file and, as such, cannot be allowed to remain intact. The learned counsel invited our attention to the Kabin Nama' dated 8.3.2001 and attempted to argue that in fact an amount of Rs. 25,000/- was fixed as dower but an interpolation was made in theNikah Nama' dated 10.3.2001 and the amount of dower was changed from Rs. 25,000/- to Rs. 50,000/-. The learned counsel also questioned the dowry list and dubbed the same as fictitious, maintaining that learned trial judge had no justifiable reason to accept the list and make the same basis of the respondent wife's claim. Concluding the arguments, learned counsel asserted that had the appellate Court gone through the entire material, it would have given a different and correct opinion, accepting the appeal filed by petitioner husband and rejecting the claim of respondent wife.
In this regard reliance was placed on Mst. Allah Raki petitioner vs. Tanweer
Iqbal and other respondents (2004 SCMR 1739).
Contrarily, learned counsel for the respondent wife defended the impugned judgments on all counts and submitted that the Courts below have evaluated and appreciated the evidence of the parties in a legal fashion, thus, does not warrant any interference by this Court.
We have carefully taken into consideration the arguments of learned counsel for the parties. We have also perused the evidence with their assistance.
The impugned judgments are being attacked mainly on the ground that the evidence recorded by the trial Court has not been appreciated in right direction. It is pleaded that the evidence is misread, which has resulted in manifest injustice. Having adjudged the matter from all angles, we are of the view that impugned judgments and decrees are supported by actual evidence on the file and the matter has been dealt with in a proper manner after application of independent mind. A perusal of Column 12 of the Nikah Nama' dated 10.3.2001 would reveal that an amount of Rs. 50,000/- was fixed as dower of the respondent wife. Iltaf Hussain (DW.1), Nikah Registrar, Lahori Ward, Peshawar has also stated so. The submission of the learned counsel for the petitioner husband that an interpolation was made in theNikah Nama' and the dower amount was subsequently increased, is devoid of force. The respondent wife has produced sufficient evidence in support of her claim. There is nothing in rebuttal. It is the basic principle of law that one who asserts must prove it. The objection of the learned counsel for the petitioner husband regarding dowry list, is also without force. The list has been satisfactorily proved through the deposition of the respondent wife and the witnesses produced by her at the trial. It is well settled proposition of law that for a specific assertion made by the witness, material to the controversy of the case, is not challenged in cross examination by putting contrary suggestions, then the same is to be given full credit and shall be accepted as true unless displayed by reliable, cogent and clear evidence.
This Court in exercise of its Constitutional jurisdiction cannot interfere with the findings of fact, unless it was shown that such findings by the lower Court suffers from misreading/non-reading, which had affected the findings on merit. In Export Promotion Bureau and others v. Qaiser Shafiullah (1994 SCMR 859) it was held:
"Constitutional jurisdiction is not designed and intended to be used as a substitute for a regular appeal or to be equated with a regular appeal. In a Constitutional petition the High Court cannot interfere with a finding of fact merely on the ground that the reasons which found favour with the authority whose order is under scrutiny were not such which would have been accepted by the High Court. The Constitutional jurisdiction can be invoked to rectify jurisdiction defects. It is to be pressed into service against an order which is without jurisdiction or tainted with malice or is violative of a provision of the Constitutional Law and not to correct a finding of fact. However, even in Constitutional jurisdiction the High Court may interfere with a finding of fact, if it is founded on no evidence or is contrary to the service.
In view of the above, we find that the Courts below have properly appreciated the evidence available on record and we have not been able to find out any illegality inviting interference in the concurrent findings of Courts of competent jurisdiction. The writ petition having been found bereft of substance is dismissed, with no order as to costs.
(Javed Rasool) Petition dismissed
PLJ 2006 Peshawar 145
Present: Muhammad Raza Khan, J.
MIAN SARFRAZ GUL--Appellant
versus
COLLECTOR LAND ACQUISITION etc.--Respondents
RFAs. Nos. 53 & 69 of 1999, decided on 31.1.2005.
Land Acquisition Act, 1894 (I of 1894)--
----S. 53--Civil Procedure Code (V of 1908), O. XXVI, R. 29--Report of Local Commission--Rejection of--Validity--Held: Report of Local Commission had been rejected on ground that commission was not a construction expert and he was not accompanied by an appropriate Engineer--As the commission had assessed the disputed price on basis of local inquiry in presence of representative of respondent/department so it has considerable evidentiary value--Order was set aside and case remanded. [Pp. 147] A, B & C
2001 CLC 1847; CLC 1985 Pesh 228; PLD 1995 Pesh. 78; CLC 1990 Lah. 718 and PLD 1990 SC 1248 ref.
Mr. M. Alam, Advocate for Appellant.
Mr. Obaidullah Anwar, Advocate for Respondent No. 1.
Mr. Anwar Hussain, Advocate for the Respondents No. 3 to 5.
Date of hearing : 14.10.2005.
Judgment
Through this single judgment, I propose to dispose of the instant appeal (RFA No. 53/1999) as well as connected appeal (RFA No. 69/1999) between the same parties relating to different nature of the property acquired for a common purpose.
Respondent No. 2 processed the case for acquisition of land situated in village Maira Abazai, Tehsil and District Charsadda for the purpose of remodelling of lower Swat canal. The disputed property consisted of land as well as built up area in the shape of houses, shops and mosque. Respondent No. 2 announced two awards, the one relating to built up property and wells whereas the second award was given in respect of the landed property. The appellants filed two objection petitions against the two awards which were forwarded to the Referee Court for disposal under the Land Acquisition Act. Both the objection petitions were processed and after framing issues and recording evidence, both the objection petitions were dismissed by the learned Additional District Judge, Charsadda vide his judgments dated 13.5.1999 and 11.9.1999. These judgments have been assailed through the present appeals.
The learned counsel for the appellants at the out set stated that under Section 53 of the Land Acquisition Act, 1894 the provisions of the Civil Procedure Code are applicable to all the proceedings before the Land Acquisition Court and therefore, the learned Court was bound to have drawn the decree sheets alongwith the judgments. Section 33 of the Civil Procedure Code provides that the Court, at the conclusion of the hearing of the case, shall pronounce the judgment and on such judgment a decree shall follow. A judgment without the decree sheet cannot be subjected to appeal because under Section 96 of the CPC an appeal lies against the decree and not against the judgment and the learned counsel argued that he made all the efforts to get the copy of the decree sheet but the same was not drawn, hence, the appeals were filed without the said requirements. Similarly, he referred to Rule 1 of Order XLI, C.P.C. which requires that every memorandum of appeal shall accompany the copy of a decree sheet appealed from and of the judgment on which it is founded. Since the learned trial Court has not complied with the said requirement, therefore, by following the principle laid down in 2001 CLC 1847 the case has to be remanded for doing the needful.
In addition to the ground of non-availability of the decree sheet, there are several other defects in the impugned judgments. In one objection petition, the property consisted of the land as well as the superstructure and
since the possession of the property had to be taken immediately for the purpose of completion of the Project, therefore, the learned trial Court has appointed Muhammad Taimur Khan, Advocate as local commissioner for assessment of appropriate value of the superstructure in possession of the appellants. The report of local commissioner has been cursorily rejected by the learned trial Court on the only ground that the said local commissioner was himself not a construction expert and he was not accompanied by an appropriate Engineer, so, the assessment of the Engineers of the acquiring department was believed. This attitude is violative of the principles laid down in the earlier judgment of this Court reported as CLC 1985 Peshawar 228 and PLD 1995 Peshawar 78 also supported by CLC 1990 Lahore 718 and the final verdict of the Honourable Supreme Court of Pakistan reported as PLD 1990 Supreme Court 1248 holding therein that the valuation by Engineering staff of acquiring department is not binding on the Court whereas the value of the superstructure by the local commissioner appointed by the Court has superior binding force. Moreover, the report of the local commissioner indicates that representative of the department i.e. S.D.O. was present and he signed the report in token of correctness of measurement. The local commissioner had reportedly assessed the price on the basis of local inquiry, therefore, such a report had considerable evidentiary value which has been ignored in the impugned judgments.
In RFA No. 69/1999 it has been pointed out that the learned trial Judge has carried an impression that the property was uncultivable and therefore, its price can be assessed as determined by the Land Acquisition Collector. There is considerable evidence available on the file to show that the property was being used for residential purposes and the basic amenities were available to convert it from agricultural land to the type fit for residential purpose. This fact was also ignored by the learned trial Court.
Similarly, in the judgment of the Land Acquisition Case No. 22/4 of 1998 as many as seven issues, were reproduced but excepting the discussion on Issues Nos. 5 and 7, the remaining issues, particularly Issues Nos. 2, 3 and 4, were neither discussed in the judgment nor any observation was made relating to those issues.
Since both the impugned judgments of the trial Court suffered from several defects, therefore, without commenting further on the merits of the case, both the appeals are accepted and the cases are remanded back to the learned trial Court for recording judgment on all the issues after listening to the arguments on behalf of the parties. Parties are directed to appear before the learned trial Court on 1.3.2005.
(Javed Rasool) Case remanded.
PLJ 2006 Peshawar 148 (DB)
Present: Tariq Parvez Khan, C.J., and Salim Khan, JJ.
ARIF EJAZ--Petitioner
versus
DIRECTOR GENERAL FIA, ISLAMABAD and 3 others--Respondents
W.P. No. 1054 of 2005, decided on 31.1.2006.
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 420/486/487/468/ 471/109--Trade Marks Ordinance, 2001--S. 39--Bottler's Agreement between petition & respondent showed that the trade mark of Amrat Cola, Amrat Lime & Amrat Orange were to be used--Held: Trade mark had not been registered in the name of any two parties but same were still pending before Registrar Trade Marks--No infringement proceedings could be conducted before its registration, so FIA authorities had no power to register a case against petitioner--Respondents were directed to proceed u/S. 169 Cr.P.C. and the relevant Rules while dealing with criminal case. [Pp. 149 & 150] A, B, C & D
Mr. Amir Javed, Advocate for Petitioner.
Mr. M. Muazzam Butt, Advocate for Respondents.
Date of hearing: 27.10.2005.
Judgment
Salim Khan, J.--Arif Ejaz, petitioner, filed the present writ petition against the Director General FIA, Islamabad, his two subordinates and M/s. Amrat Beverages International (Pvt.) Limited through its Chief Executive, 17-D, Block-C, Shahra-e-Faisal, Karachi. It was contended by the petitioner that Respondent No. 4 introduced the firm to petitioner to enter into a bottler's agreement with it and finally entered into an agreement with the firm through the petitioner on 22.4.2004. It was further contended that the petitioner developed his business, but it came to light that
Respondent No. 4 was neither the owner of the trade mark of AMRAT' nor it had exclusive right to the above trade mark, that the petitioner introduced his beverages with the trade mark ofAMRAT' by dint of his hard work, that the
Registrar Trade Marks at Karachi had confirmed that Respondent No. 4 was not the owner and exclusive user of the trade marks and different petitions were pending adjudication before the Registrar, Trade Marks, Karachi.
But the FIA Circle Peshawar, had, without any verification/ inquiry, registered a criminal case against the petitioner, vide FIR No. 2 under Sections 420/486/487/468/471/109 PPC, and arrested the petitioner and conducted raid on his firm. It was further contended that the FIA did not release the petitioner under Section 169 Cr.P.C., but later on, admitted that no criminal case existed against the petitioner. The request of the petitioner was for declaration that the registration of criminal case as aforesaid against him was illegal and without lawful authority and also for quashment of the FIR.
We heard the arguments of Mr. Aamir Javed, Advocate, for the petitioner as well as Mr. Muhammad Muazzam Butt, Advocate, for Respondent No. 4, and perused the available record.
The Bottler's Agreement between the parties shows that the trade mark of
Amrat Cola',Amrat Lime' and Amrat Orange' were to be used in the light of the said Agreement between the petitioner and Respondent No. 4. The Memorandum dated 30.3.2005 of the Examiner of Trade Marks authorized under Section 7(2) of the Trade Marks Ordinance, 2001, indicates that marked asA' is the true copy of pending application presented at Trade Marks Registry, Karachi in the name of Arif Ijaz, Sole Proprietor, Pakistani National, trading as M/s. Mohsin
Beverages, who claimed to be the Proprietor of the Trade Marks. It was further mentioned that the Mark was under consideration and was not registered upto 30.3.2005. From the annexed Form, with reference to the request for search by
Arif Ijaz, it was clarified that the Trade Mark "Amarit" was shown for M/s. National Detergen Ltd, Karachi, the Trade Mark Amrit' was shown for
M/s. Ranco Water, Faisalabad while the Trade MarkAMARAT' was shown for M/s.
Pakistan Mineral Water. It did not include the Trade Mark Amrat' orAmrat
Cola', Amrat Lime' orAmrat Orange'.
Section 39 of the Trade Marks Ordinance, 2001 (Ordinance No. XIX of 2001) provides that no infringement proceedings shall be conducted before the date, on which the Trade Mark is in fact registered. In this case, the Trade Marks in dispute between the parties have not been registered in the name of any of the two parties. The action to be taken for infringement is mentioned in Section 46 of the said Ordinance, and further action can be taken by the Collector Custom also. The provisions of Section 117 of the said Ordinance are to the effect that no suit shall be instituted in a Court inferior to a District Court having jurisdiction to try the suit. Such other Court, therefore, shall not have jurisdiction to deal with such suit.
The parties could not be able to show us that the disputed Trade Mark/Marks was/were registered in the name of either of the two parties. The FIA authorities, in the circumstances, had no power to register a case against the petitioner. The case in hand is not a case of avoiding the terms of the agreement, rather, it is regarding use/misuse of the Trade Mark. It is not rebutted before us that the FIA authorities came to the conclusion that no criminal case existed against the petitioner. The parties may have civil rights, if any against each other, and may prove the same in the Court of competent civil jurisdiction, but no criminal case for the time being exists against the petitioner. The aggrieved party, after registration of the Trade Mark in his name, may seek his legal remedy before the Court of competent jurisdiction, if his rights are infringed.
In the circumstances of the present case, we have come to the conclusion that no criminal case exists and could be registered against the present petitioner. Hence, we direct Respondents Nos. 1 to 3 to take into consideration the provisions of Section 169 Cr.P.C. and the relevant Rules while dealing with the criminal case against the petitioner. The present writ petition is, therefore, disposed of accordingly.
(Javed Rasool) Order accordingly
PLJ 2006 Peshawar 150
Present: Ijaz-ul-Hassan, J.
MUHAMMAD IQBAL & others--Petitioners
versus
ARSHAD IQBAL & others--Respondents
Civil Revision No. 307 of 2005, decided on 9.12.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional Jurisdiction--Concurrent finding--Held: Process of examination of evidence for upsetting a concurrent finding of fact in exercise of powers u/S. 115 is neither permissible nor warranted by law. [P. 152] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional Jurisdiction--Words "Illegally or with material irregularity"--Connotation of--Held: The words illegally or with material irregularity have reference to material defects of procedure and not to errors of law or fact after formalities which the law prescribes have been complied with. [P. 153] B
Qazi Abdul Basit, Advocate for Petitioners.
Mr. Ihsan Ullah Khan, Advocate for Respondents.
Date of hearing : 25.11.2005.
Judgment
Shortly narrated the facts, giving rise to the filing of instant revision petition are, that Arshad Iqbal and others, plaintiffs instituted suit in the Court of Senior Civil Judge, Peshawar, against Muhammad Iqbal and his father Altaf Hussain, defendants, claiming a declaration to the effect that plaintiffs were owners to the extent of « share in respect of suit house, including shop and garage, situated in mohallah Jangi, Peshawar City, having inherited the same from their predecessor-in-interest Mst. Nizakat Sultan. The plaintiffs also prayed for issuance of perpetual injunction partition and recovery of possession. The suit was resisted on all grounds, legal as well as factual. The parties were put to trial on as many as fourteen issues. For the purpose of disposal of instant civil revision, I am concerned with Issues Nos. 7 and 8, which are to the following effect:--
"7. Whether plaintiffs are owners to the extent of « share in suit house?
Whether Defendant No. 2 had incurred Rs. 50,000/- as expenses on marriage of Nizakat Begum in lieu of her half share in the suit property. If so, its effect?"
Learned Civil Judge, Peshawar, seized of the matter, upon consideration and appreciation of the evidence adduced by the parties in support of their respective contentions, found Issue No. 7 in affirmative and Issue No. 8 in negative and resultantly, decreed suit in favour of plaintiffs, as prayed for, vide judgment and decree dated 10.4.2004. An appeal was preferred thereagainst, which was dismissed by learned Additional District Judge, Peshawar, through judgment dated 7.12.2004. Feeling aggrieved thereby, instant revision petition has been filed, which is before me for consideration.
Appearing on behalf of the petitioners, Qazi Abdul Basit, Advocate contended with force that the impugned judgments and decrees of the Courts below are lacunic and suffer from the vice of misreading and non-reading of evidence on record and that the matter has been dealt with in a cursory manner without application of independent mind, which has resulted in complete failure of justice. The learned counsel reiterated that learned trial Court knowingly that the claim of the plaintiffs is for half of the suit house including garage and shop, decreed half of the suit alongwith whole shop and garage in favour of the plaintiffs, which is against the spirit and contents of Tamleek Nama (Ex. PW.1/1) dated 26.10.1974.
As against that, Mr. Ihsanullah, Advocate for the respondents defended the impugned judgments and decrees of the Courts below, maintaining that the material on the file has been considered and appreciated in right direction and concurrent findings of facts arrived at by the Courts below are immune from scrutiny and hardly warrant interference of this Court in its revisional jurisdiction.
The parties are closely related to each other. Arshad Iqbal, Zahid Iqbal, Mudasir Hayat plaintiffs are sons and Iqbal Ilahi, plaintiff is husband of Mst. Nizakat Sultan. Mst. Nizakat Sultan, is sister of Muhammad Iqbal and daughter of Iltaf Hussain petitioner. She is claimed to have inherited the suit property from her mother Mst. Zamrud Begum deceased. Muhammad Iqbal petitioner is stated to have incurred an amount of Rs. 50,000/- on the marriage of Mst. Nizakat Sultan. She is said to have surrendered her share in favour of Muhammad Iqbal in lieu thereof.
I have given my mature consideration to the arguments of learned counsel for the parties in the light of the material on the record.
Although this Court is not called upon to reappraise the evidence on record in exercise of its revisional jurisdiction, yet, in the interest of justice, I have gone through the evidence and find that the reasoning recorded by the Courts below are in harmony with the material on record and no prejudice seems to have been caused to the petitioners. The contents of the Tamleek Nama (Ex. PW.1/1) dated 26.10.1974 have been rightly interpreted and appreciated. The Courts below have rightly clinched the factual controversy, have dealt with the matter in a thread bare manner and came to the concurrent conclusion after due application of independent mind, which cannot be disturbed in revisional jurisdiction. The trial Court as well as the appellate Court have elaborately discussed every aspect of the case and have dealt with the same in detail, leaving no room for further consideration. It is settled law that findings on question of fact or law recorded by competent Court of law/jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularity. The jurisdiction of the High Court to interfere with the concurrent finding of fact in revisional jurisdiction under Section 115 CPC is very limited. The High Court in exercise of its jurisdiction under Section 115 CPC can only interfere with the orders of the subordinate Courts on the grounds, that the Courts below assumed jurisdiction which did not vest in it, or has failed to exercise the jurisdiction vested in it by law or that the Court below has acted with material irregularity affecting its jurisdiction in the case.
The process of examination of evidence for upsetting a concurrent finding of fact in exercise of powers under Section 115, CPC in my view is neither permissible nor warranted by law. As earlier pointed out by me, interference with a finding of fact of the Courts below by the High Court in exercise of its revisional jurisdiction under Section 115 CPC could only be justified if such finding is the result of perverse appreciation of evidence on record. A wrong or erroneous conclusion on a question of fact by the Courts below is not open to interference by the High Court in exercise of its jurisdiction under Section 115 CPC. I may also mention here that the High Court while examining a concurrent finding of fact recorded by the Courts below in exercise of its revisional jurisdiction under Section 115 CPC has to attend to the reasons given by the Courts below in support of such finding and misreading, non-reading or perverse appreciation of evidence has to be discovered in the reasonings of the Courts below to justify interference in exercise of its revisional jurisdiction.
Revisional jurisdiction is directed against irregular exercise, non-exercise or illegal assumption of jurisdiction and not against conclusions of fact or law not involving question of jurisdiction.
The words illegality or with material irregularity, have reference to material defects of procedure and not to errors of law or fact after formalities which the law prescribes, have been complied with.
Learned counsel for the petitioners could not point out the breach of any provisions of law or commission of any error of procedure by the Courts below.
In the result and for the forgoing reasons, it follows that the learned trial Judge as well as the learned appellate Court have taken a rightful decision which is in consonance with the evidence on the file. No misreading or non-reading of evidence is proved and at the same time, the judgments of the Courts below are not shown to have been tainted with any illegality or irregularity in absence of which, no interference is permissible in revisional jurisdiction of this Court. There is no merit in this revision which is accordingly dismissed with no order as to costs.
(Javed Rasool) Revision dismissed
PLJ 2006 Peshawar 153
Present: Talaat Qayyum Qureshi, J.
NOOR MUHAMMAD--Appellant
versus
GUL ZAMIN--Respondent
R.F.A. No. 132 of 2004, decided on 4.2.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O. VIII, R. 2--Qanun-e-Shahadat Order, (10 of 1984), Art. 113--Non-raising plea in written statement--Effect--Held: Appellant had neither taken the plea of limitation in his written statement nor he uttered a single word in his statement regarding the same--Even if there had been any such evidence, it could not be looked into because no evidence could be led or looked into in support of a plea, not taken in the pleading. [P. 156] A
PLD 1976 SC 322; 1994 SCMR 1856; 2000 CLC 847; 2001 SCMR 1992 & 1996 SCMR 336, ref.
Mr. Mazullah Barkandi, Advocate for Appellant.
Mr. Hidayatullah Khan, Advocate for Respondent.
Date of hearing : 4.2.2005.
Judgment
This appeal is directed against the judgment and decree dated 31.3.2003 passed by the learned Senior Civil Judge/Aala Illaqa Qazi Dir Payeen at Timargara, whereby the suit filed by the respondent/plaintiff was decreed in his favour to the extent of recovery of Rs. 7,27,000/-.
Mr. Mazullah Barkandi, Advocate the learned counsel representing the appellant argued that the suit filed by the respondent/plaintiff was in fact pre-mature as not only Govt. has imposed restrictions on the transportation of timber, but due to dispute of `Qaum' inter se with regard to the payment of royalty also, the time was not being allowed to be transported, therefore, the appellant was handicapped and he could not be burdened for specific enforcement of the agreement in question.
It was also argued that in fact the suit filed by the appellant was barred by time; in that the agreement was executed by any between the parties on 13.6.1994, whereas the suit in hand had been filed on 3.6.1999 i.e. after about 5 years of the execution of the agreement, since the period of limitation for enforcement was 3 years, therefore, suit was barred by the law of limitation.
It was also argued that the agreement in question Ex. P.W.1/3 had not been signed/executed by the appellant, therefore, he was not bound by the same.
On the other hand Mr. Hidayatullah Khan, Advocate the learned counsel representing the respondent/plaintiff argued that in fact the appellant/defendant was not owner of any timber in Compartment No. 295 Lot No. 375, therefore, he could not sell his right of royalty to the respondent/plaintiff. The appellant/defendant himself placed on record copy of affidavit Ex. D.W.2/1. Said affidavit was executed by 9 persons, who were the owners in the compartment mentioned in the said document. The name of appellant does not appear as owner.
It was also argued that the appellant had in Para No. 1 of the written statement admitted having executed the agreement dated 13.6.1994 Ex. P.W.1/3 and he was bound by admission made in his pleadings. Reliance in this regard was placed on Mst. Niaz Begum vs. Waris Khan (1995 MLD 690).
I have heard the learned counsel for the parties and perused the record.
The pivotal point/issue which needs determination in this case is Issue No. 3 which is to the following effect:--
Whether the defendant was bound by agreement dated 13.6.1994 to supply 5000 C.ft Partal and 4000 C.ft Diyar to plaintiff and in case of his failure is he liable to pay Rs. 7,27,000/- to the plaintiff?
Answer to this question is in the affirmative. The admitted position in this case is that parties executed agreement dated 13.6.1994 Ex. P.W.1/3 through which the appellant/defendant sold his 60% royalty rights with regard to timber i.e. Partal 5000 C.ft and Diyar 4000 C.ft at the rate of Rs. 81/- per C.ft. Out of Compartment No. 295 Lot No. 375 situated in Jungle known as "Shergah Bar Killay Guldi" Tehsil Dir. In addition to agreement Ex. P.W.1/3 the appellant also executed power of attorney Ex. P.W. 1/2 in favour of respondent/plaintiff, thereby authorizing him to receive 60% royalty amount after selling the above mentioned timber. On refusal of appellant/defendant to hand over the agreed quantity of wood, the respondent/plaintiff brought suit for specific performance of agreement dated 13.6.1994 Ex. P.W. 1/3 and in the alternative for recovery of Rs. 7,27,000/- with Bank rate. The appellant/defendant on service appeared before the Court and submitted his written statement. In reply to Paragraph No. 1 of the plaint, the appellant/defendant stated that the same was correct. By admitting Para No. 1 of the plaint as correct he not only admitted the execution of agreement dated 13.6.1994 but also receipt of Rs. 7,27,000/- cash and execution of special power of attorney in favour of respondent/plaintiff. It is by now settled law that under Article 113 of Qanoon-e-Shahadat Order 1984, admissions in the pleadings are conclusive and have overriding role which does not permit that admission through evidence or unrebutted statements be made basis of adjudication in exclusion to pleadings admission. In the scheme of Qanoon-e-Shahadat Order, 1984 Article 45 of the ibid Order also deals with admissions but such Article applies to evidentiary admissions, whereas Article 113 is a rule of procedure and as per this Article no fact needs to be proved in any proceedings, which the parties thereto or their Agents agree to admit at the hearing or which before the hearing they agreed to admit by in writing under their hand or which by any rule or pleadings at the time they are deemed to have admitted by their pleadings. The Court, however, has discretion that the facts admitted be proved otherwise than by such admissions. Since the appellant/defendant had in his written statement admitting having executed agreement dated 13.6.1994 Ex. P.W.1/3 execution of special power of attorney Ex. P.W.1/2 and receipt of Rs. 7,27,000/- in cash he was bound by the same and was liable to either hand over the timber mentioned in the agreement or in the alternative was liable to pay the amount received i.e. Rs. 7,27,000/- to respondent/plaintiff.
The argument of the learned counsel for the appellant that the suit filed by the respondent/plaintiff was barred by time has no force. In the written statement not only in the preliminary objections, but while replying the factual aspect also, the appellant/defendant taken up the plea that the suit filed by the respondent/plaintiff was "pre-mature". His stand remained the same throughout the trial and now the learned counsel for the appellant took up altogether different plea of (time barred), which was never raised by him in the trial. It is well settled that a party cannot be permitted to raise an altogether new ground of attack of defence, by departing from his pleadings especially when the opposite party has no opportunity of adducing evidence in this behalf or to otherwise have an opportunity of meeting the plea during the course of trial. Wisdom in this regard has been sought from the following reported judgments:--
(1) Mst. Murad Begum etc. vs. Muhammad Rafique etc. (PLD 1976 S.C. 322);
(2) Mst. Salima Bibi vs. Mst. Halima Bibi (1994 SCMR 1856) &
(3) Citi Bank vs. Riaz Ahmad, (2000 CLC 847).
(a) Din Muhammad & others vs. Sardar Muhammad Zaman (2001 SCMR 1992) and
(b) Binyamin and 3 others vs. Chaudhry Hakim & others (1996 SCMR 336)
Resultantly, the appeal in hand is dismissed with no order as to costs.
(Javed Rasool) Appeal dismissed
PLJ 2006 Peshawar 156
Present: Ijaz-ul-Hassan, J.
NAIMAT KHAN & others--Petitioners
versus
HAMZULLAH KHAN & others--Respondents
Civil Revision No. 121 of 2002, decided on 26.9.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XX, R. 5--Issue-wise findings--Held: Provision was evidently applicable to the original Court which heared a civil suit but was not mandatory for the Appellate Court--It is sufficient for Appellate Court to deal with the issues as are material for disposal of the controversy excepting those abandoned by Appellant. [P. 158] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XX, R. 5--Issue-wise findings--Held: Provision was evidently applicable to the original Court which heared a civil suit but was not mandatory for the Appellate Court--It is sufficient for Appellate Court to deal with the issues as are material for disposal of the controversy excepting those abandoned by Appellant. [P. 159] B
(iii) Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 27--Additional evidence--Held: Powers u/O. XLI, R. 27 are to be exercised only if the Court considers that it would not be able to pronounce judgment without further evidence and it cannot be used for the benefit of a party which has not been vigilent enough to see that no weakness are left in case. [P. 159] C
(iv) Civil Procedure Code, 1908 (V of 1908)--
----O. 41, R. 25--Remand of Case--Held: Power to order remand is no doubt wide but, it should be exercised only in those cases wherein omission of a party was accidental--A party cannot be allowed to adduce evidence to do away with weakness that exists in its case. [P. 159] D
(v) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional Jurisdiction--Exercise of--Held: Findings on question of fact or Law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffered from jurisdictional defect, illegality or material irregularities. [P. 159] E
1991 SCMR 1816 & PLD 2004 SC 10, ref.
Mr. Iftikhar Mashwani, Advocate for Petitioners.
Umar Zafran Khan & Mr. Shah Nawaz Khan, Advocates for Respondents.
Date of hearing : 26.9.2005.
Judgment
Shortly narrated the facts relevant for disposal of instant civil revision are, that Naimat Khan and others, plaintiffs instituted suit against Hamzullah Khan and others, defendants, for a declaration to the effect that plaintiffs are owners in possession of suit land by virtue of oral purchase by the forefathers of the plaintiffs from the forefathers of the defendants and the entries in the revenue record are void, illegal, ineffective on the rights of the plaintiffs and liable to rectification. The plaintiffs also prayed for grant of permanent injunction, restraining the defendants to alienate to suit land in any manner. In the alternative, possession of suit land was also sought.
The suit was resisted on all grounds, legal as well as factual.
After recording such evidence as the parties wished to adduce, learned Civil Judge/Illaqa Qazi at Daggar Buner, seized of the matter, dismissed suit by judgment and decree dated 9.5.2000, holding that plaintiffs have failed to prove the factum of sale. An appeal was preferred thereagainst before learned District Judge/Zilla Qazi, Daggar Buner, which was also dismissed by judgment dated 5.1.2002. Hence instant civil revision.
I have heard S. Iftikhar Mashwani Advocate, for the petitioners and Mr. Shah Nawaz Khan, Advocate for the respondents, in the light of the material on record.
Learned counsel for the petitioners, contented that the impugned judgments and decrees of the Courts below are the result of mis-reading and non-reading of evidence and the appellate Court had failed to record judgment issue-wise and separate in terms of the requirements of Order XX, Rule 5 CPC. In the last limb of arguments, learned counsel prayed for remand of the case in terms of Order XLI, Rule 25 CPC.
In order to appreciate the contention of learned counsel for the petitioners, I consider it appropriate to reproduce below the provision of Order XX, Rule 5 CPC which reads:
"Court to state its decision on each issue.--In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for decision of the suit."
The above provision is evidently applicable to the original Court which hears a civil suit. As regards appellate Court, the requirement of recording findings issue-wise is not mandatory. It is sufficient for the appellate Court to deal with all the issues as are material for disposal of the controversy excepting those abandoned by the appellant. An appellate Court recording its findings all the points raised before it, without discussing the issues separately cannot be said to have committed any illegality or error. Umar Din vs. Ghazanfar Ali and others (1991 SCMR 1816).
"It is well settled by now that where the evidence on record is sufficient for the Court concerned to decide the matter itself, remand should not be ordered and moreso, a Court will not remand a case where the defect is due to the negligence and the default of the party desiring remand."
In the result and for the foregoing reasons, finding no merit in this civil revision, the same is hereby dismissed with no order as to costs.
(Javed Rasool) Revision dismissed
PLJ 2006 Peshawar 160 (DB)
Present: Ijaz-ul-Hassan and Fazal-ur-Rehman Khan, JJ.
MUHAMMAD ZAMAN—Petitioner
versus
Mst. SIRAJ & 2 others--Respondents
W.P. No. 1793 of 2005, decided on 23.1.2006.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 5--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Dower--Determination of dowery--Suit partially decreed--Appeal disposed of--Assailed--Both Courts below have concurrently found that respondent/ petitioner entitled for recovery of gold ornaments, possession of agricultural land and residential house--Sufficient material was available on record in support of claim of respondent--No reliable evidence has been produced in rebuttal--Courts below have appreciated evidence on record and High Court in exercise of its Constitutional jurisdiction cannot interfere with findings of fact, even if on appraisal of evidence it was possible to reach to different conclusion unless it was shown that such findings by lower Court suffered from vice of misreading/non-reading of evidence, which had affected findings on merit--Held: No substance in petition and same dismissed. [P. 161] A, B & C
M. Shahnaz Hameed Khattak, Advocate for Petitioner.
Date of hearing : 23.1.2006.
Order
Ijaz-ul-Hassan, J.--Mst. Siraj Begum, Respondent No. 1 instituted suit against her husband Muhammad Zaman, petitioner before Senior Civil Judge/Judge Family Court, Charsadda for recovery of gold ornaments weighing 7 tolas and possession of 4 kanals of agricultural land and a house, situated in Deh Katozai, Charsadda. It was averred in the plaint that petitioner married Respondent No. 1 in consideration of dower and in this respect a deed was executed between the parties on 14.9.1971. Two children were born out of the wedlock. Unfortunately the petitioner contracted second marriage and expelled Respondent No. 1 of his house and refused to pay dower. The suit was resisted and allegations of Respondent No. 1 were controverted. The relevant issues were framed. After recording such evidence as the parties wished to adduce, learned trial judge by his judgment and decree dated 15.2.2005, partially decreed the suit qua recovery of five tolas of gold ornaments, four kanals agricultural land residential house in Deh `Katozai' Charsadda. An appeal was preferred thereagainst which was partially accepted on 6.7.2005 by Additional District Judge, Charsadda.
Muhammad Zaman petitioner, feeling dissatisfied, has filed instant writ petition, which is before us for consideration.
Ms. Shahnaz Hameed Khattak, Advocate for the petitioner, assailed the correctness of impugned judgment and decrees of the Courts below and attempted to argue that the material on the file has not been appreciated in its true perspective; that the Courts below have overlooked the material favouring the petitioner and discarded the same in a manner uncalled for and unwarranted in law, and the alleged `mahar nama' dated 14.9.1971 has been taken into consideration in absence of supportive evidence, which has resulted in manifest injustice. Concluding the arguments, it was maintained, that gold ornaments were given to Respondent No. 1 by the petitioner at the time of marriage and as such, the petitioner cannot be saddled with any liability.
The submissions of the learned counsel do not carry weight. Both the Courts below have concurrently found Respondent No. 1 entitled for the recovery of gold ornaments weighing five tolas and possession of agricultural land and residential house. The learned counsel has not been able to successfully challenge the concurrent findings of the Courts below. She has also failed to show that the material on record has not been appreciated in a legal manner and the claim of Respondent No. 1 has been accepted mechanically without application of judicial mind. Sufficient material is available on the record in support of the claim of Respondent No. 1. No reliable evidence has been producef in rebuttal. Courts below have correctly appreciated the evidence on record and this Court in exercise of its Constitutional jurisdiction cannot interfere with the findings of fact, even if on appraisal of evidence it was possible to reach to a different conclusion, unless it was shown that such findings by the lower Court suffered from the vice of misreading or non-reading of evidence, which had affected the findings on merit. In Export Promotion Bureau and others vs. Qaiser Shafiullah (1994 SCMR 859), it was held :--
"Constitutional jurisdiction is not designed and intended to be used as a substitute for a regular appeal or to be equated with a regular appeal. In a Constitutional petition the High Court cannot interfere with a finding of fact merely on the ground that the reasons which found favour with the authority whose order is under scrutiny were not such which would have been accepted by the High Court. The Constitutional jurisdiction can be invoked to rectify jurisdictional defects. It is to be pressed into service against an order which is without jurisdiction or tainted with malice or is violative of a provision of the Constitution/Law and not to correct a finding of fact. However, even in Constitutional jurisdiction the High Court may interfere with a finding of fact, if it is founded on no evidence or is contrary to the evidence."
(Alia Sattar Chaudhry) Petition dismissed.
PLJ 2006 Peshawar 162 (DB)
Present: Shahzad Akbar Khan and Ijaz-ul-Hassan, JJ.
UMAR FAROOQ--Petitioner
versus
MEHNAZ IFTIKHAR & 2 others--Respondents
W.P. No. 1577 of 2004, decided on 26.12.2005.
Dower--
----Consideration of dowery--Entitlement--Validity--Appellate Court proceeded on wrong premises to hold that Mst. "M" was entitled for recovery of specific amount value dowry articles--Dowry list attached with plaint has not been proved at all--Finding returned by appellate Court betrays lack of proper application of mind and cannot be allowed to remain intact--Petition filed by husband partially accepted, whereas petition of wife dismissed. [P. 165] A
Mr. Malik, Jarar Hussain, Advocate for Petitioner.
Mr. Ghafoor Ahmad Qureshi, Advocate for Respondents.
Date of hearing : 8.12.2005.
Judgment
Ijaz-ul-Hassan, J.--Umer Farooq (petitioner in W.P. No. 1577/2004), instituted suit against his wife Mst. Mehnaz Iftikhar (petitioner in W.P. No. 822/2005), for restitution of conjugal rights, alleging that he entered into a tie of marriage with Mst. Mehnaz Iftikhar, on 26.5.2000 in consideration of dower amount of Rs. 1,00,000/- 30 tolas gold ornaments and portion of residential house in village Shewa, Swabi. The relations between the spouses in the early few months of the marriage were cordial but due to unnecessary interference of the parents of Mst. Mehnaz Iftikhar, relations between the spouses started deteriorating. Mst. Mehnaz Iftikhar on 13.1.2001 left the house of the petitioner in his absence, taking alongwith her garments, gold ornaments and a color television set. The petitioner sent number of Jirgas to secure her return but all in vain.
Mst. Mehnaz Iftikhar, also filed suit for dissolution of marriage and recovery of maintenance, dower and dowry articles etc, on the ground that the petitioner deprived her of her belongings, treated her with cruelty and made her left miserable which forced her to abandon the house of the petitioner and take abode in the house of her parents. Both the suits were consolidated and in view of the pleadings of the parties, following consolidated issues were framed:--
Whether the parties in their respective suits have got cause of action?
Whether the dower was fixed as Rs. 1,00,000/- cash gold ornaments of 30 tolas and a house situated in village "Shewa" Swabi.
Whether the dower has been paid to the defendant/wife?
Whether the behaviour of the pltff/husband towards the defdt/wife was harsh and cruel and he usually subjected her to mental and physical torture?
Whether during the period of ghair abadi the pltff/husband paid any maintenance to defdt/wife and whether the pltff/husband approached the defdt/wife to patch up the matter?
Whether the defdt/wife was disobedient to pltff/husband and her behaviour towards pltff/husband and his family members was cruel and torturous?
Whether the defdt/wife left the house of the pltff/husband on 13.2.2001 at her own will and took alongwith her color T.V., gold ornaments weighing 50 tolas and his dresses to her parents house?
Whether the pltff/husband is entitled for the decree for restitution of conjugal rights?
Whether the defdt is entitled for dissolution of marriage on the grounds of cruelty and physical assault, disposal of defdt/wife's immovable property (money and gold ornaments), non-payment of prompt dower, non-payment of maintenance or in the alternative on the basis of khula?
Whether the defdt/wife is entitled for the recovery of prompt dower of Rs. 1,00,000/-, gold ornaments of 30 tolas or its price, house situated in village "Shewa" Swabi or its price?
Whether the defdt/wife is entitled for the recovery of maintenance allowance @ Rs. 5000/- PM since Feb: to October 2001 and till the completion of her period of Iddat?
Whether the defdt/wife is entitled for the recovery of dowry articles as per list attached with the plaint?
Whether the pltff/husband is entitled for the decree as prayed for?
Whether the defdt/wife is entitled for the decree as prayed for?
Relief.
After taking into account, the material available on the record, learned Judge Family Court, Peshawar, by means of her judgment and decree dated 31.1.2003, dismissed suit of the petitioner/husband for restitution of conjugal rights and partially decreed suit of petitioner/wife for dissolution of marriage on the basis of `khula', and recovery of maintenance allowance @ Rs. 3800/- per month with effect from March 2001.
Both the parties, feeling aggrieved, preferred appeals thereagainst, before the District Judge, Peshawar, which were entrusted to Additional District Judge, Peshawar, for adjudication. By judgment dated 31.7.2004, the appeal filed by Umer Farooq was dismissed, while appeal filed by Mst. Mehnaz Iftikhar was partially accepted to the extent of recovery of dowry articles valuing Rs. 2,00,000/-.
Still not satisfied, the parties have approached this Court by way of filing instant writ petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which are before us for consideration.
Malik Jarar Hussain, Advocate for Umer Farooq, petitioner mainly contended that both the Courts below have failed to appreciate the evidence of the parties in its true perspective and reached to the conclusion not warranted by law. The learned counsel reiterated that the trial Court while announcing the impugned order and the appellate Court while dismissing the appeal filed by Umer Farooq and partially accepting the appeal of Mst. Mehnaz Iftikhar, have totally overlooked the expressed provisions of law that an appeal against the dissolution of marriage is not competent in terms of Section 14 of West Pakistan Family Courts Act, 1964. The learned counsel also contended that there is no iota of evidence available about the mal-treatment on the part of petitioner/husband, or retention of dowry articles by him and thus impugned judgments and decrees of the Courts below suffer from the vice of misreading and non-reading of evidence and are not sustainable.
Mr. Ghafoor Ahmad Qureshi, Advocate for the petitioner wife also maintained that Courts below have drawn a wrong inference from the facts of the case and acted in violation of natural justice. Respondent No. 3 i.e. Additional District Judge, Peshawar committed a manifest error of law with regard to the relief of dowry articles granting Rs. 2,00,000/- as the value of the said articles, because the petitioner never prayed for the grant of value of the said articles, which are still lying with Respondent No. 1. To support the contentions, reliance has been placed on Karimullah, petitioner vs. Shabana and two others respondents (PLD 2003 Peshawar 146), Khalid Mahmood, petitioner vs. The Additional District Judge Ahmad Pur East, District Bahawalpur etc. respondents (2000 CLJ 176 Bahawalpur), Abdul Latif Khan and another plaintiffs vs. Gul Rehman and two others defendants (1993 MLD 643 Karachi), Wilayat Khan and 12 others appellants vs. Muhammad Yousaf and 15 others respondents (PLD 1995 Supreme Court (AJK) 41), Abdul Manan and another petitioners vs. Mir Nawaz Khan and 4 others respondents (1989 CLC 2277 Peshawar), Sohail Muhammad petitioner vs. Mst. Mizna Roomana and others respondents (1998 MLD 182 Karachi) and Masood Sarwar appellant vs. Mst. Faradeeba respondent (NLR 1988 Civil, 682).
There is no denial of the fact that Umer Farooq married Mst. Mehnaz Iftikhar on 26.5.2000 at Peshawar in lieu of dower, gold ornaments and a portion of residential house. The relations between the spouses in the early few months of the marriage were cordial but subsequently differences arose between them and they drifted apart. Mst. Mehnaz Iftikhar brought suit on 22.10.2001 for dissolution of marriage and recovery of maintenance and dower etc, while Umer Farooq filed suit on 26.1.2003 for restitution of conjugal rights. Suit of Umer Farooq was dismissed and suit of Mst. Mehnaz Iftikhar was partially decreed. Appeal preferred by Mst. Mehnaz Iftikhar was partially accepted to the extent of Rs. 2,00,000/- as value of dowry articles and appeal of Umer Farooq was dismissed.
After having attended to the submissions made by learned counsel from both the sides and going through the evidence on record, we find force in the submission of learned counsel for Umer Farooq, petitioner that learned appellate Court, proceeded on wrong premises to hold that Mst. Mehnaz Iftikhar was entitled for recovery of Rs. 2,00,000/- value of dowry articles. The dowry list attached with the plaint has not been proved at all. The finding returned by the learned appellate Court on Issue No. 12 betrays lack of proper application of mind and cannot be allowed to remain intact. Though a number of grounds have been taken in the writ petitions, but the same were not agitated during course of arguments. The same are affirmed. Resultantly, Writ Petition No. 1577/2004, filed by Umer Farooq, is partially accepted whereas Writ Petition No. 822/2005, instituted by Mst. Mehnaz Iftikhar is dismissed, with no order as to costs.
(Aliya Sattar Chaudhry) Order accordingly.
PLJ 2006 Peshawar 166 (DB)
Present: Ijaz-ul-Hassan and Fazal-ur-Rehman Khan, JJ.
SAIF-UR-REHMAN--Petitioner
versus
ANARKALI & 2 others--Respondents
W.P. No. 1910 of 2005, decided on 16.1.2006.
Constitution of Pakistan, 1973--
----Art. 199--Recovery of dowery maintenance and damages for mental torture--Suit partially allowed--Appeal dismissed, assailed--Validity of evidence--Constitutional petition--Counsel did not point out single paragraph from impugned judgment which could indicate misreading, discarding or non-consideration of any piece of evidence--Courts below have correctly appreciated evidence on record and High Court in exercise of its Constitutional jurisdiction cannot interfere with finding of fact, even of with appraisal of evidence, it was possible to reach to different conclusion, unless it was shown that such findings by lower Courts suffered from misreading/non-reading which has affected findings on merits--Held: Impugned judgments and decrees were neither based on misreading/non-reading of evidence nor same had been recorded in violation of law--Petition accordingly dismissed. [Pp. 167 & 168] A, B & C
Mr. Asghar Khan, Advocate for Petitioner.
Nemo for Respondents.
Date of hearing: 16.1.2006.
Judgment
Ijaz-ul-Hassan, J.--Mst. Anarkali, respondent, filed suit on 9.9.2002 before Judge Family Court, Charsadda, against her husband Saifur Rehman, petitioner, seeking recovery of gold ornaments weighing five tolas, dower, dowry articles, maintenance, recovery of Rs, 2,00,000/- as damages for mental torture and possession of a residential house. It was averred in the plaint that `Nikah' of the couple was recited at Charsadda about three years prior to the institution of the suit in consideration of gold ornaments, dower and a house. A son was born out of the wedlock. The petitioner contracted second marriage during subsistence of the first marriage and made life of the respondent miserable, which obliged the respondent to leave the house of the petitioner and take abode in the house of her parents. During the period of separation, the petitioner did not provide maintenance allowance to the respondent. The said suit was contested by the petitioner defendant by filing written statement. The allegations of the wife were controverted and she was said to have left the house of the husband without any justifiable reason. After formulating relevant issues and recording such evidence as the parties wished to adduce in support of their respective contentions learned trial judge partially allowed suit, vide judgment and decree dated 27.4.2004. An appeal was preferred thereagainst before learned Sessions Judge, Charsadda, which did not succeed. The appeal was dismissed by judgment dated 27.6.2005.
The petitioner, feeling aggrieved, has challenged the concurrent findings of fact recorded by the forums below, by way of filing instant constitutional petition.
Appearing on behalf of the petitioner, Mr. Asghar Khan, Advocate attempted to argue that the material available on the record has not been appreciated in right direction by the forums below, which has resulted in manifest injustice and thus the impugned judgments and decrees cannot be allowed to remain intact. The learned counsel maintained that respondent left the house of the petitioner of her own started living in the house of her parents and thus she was not entitled for maintenance. The submissions of the learned counsel do not carry weight. Although the learned counsel has contended that the judgments of the Courts below suffer from the vice of misreading and non-reading of evidence, yet when asked to explain as to which portion of the evidence has been misread and non-read by the forums below, the learned counsel despite his best efforts could not point out any such misreading of non-reading of evidence. The learned counsel has not been able to point out a single paragraph from the judgments impugned before us, which gives the slightest indication that there has been any misreading of the evidence or that any piece of evidence has been discarded or not taken into consideration. The respondent wife appeared in the witness box as PW.1 and she produced her father and maternal uncle, who were examined as PW.2 and PW.3 respectively. They have fully substantiated the claim of the respondent. Their testimony has gone unchallenged. The learned counsel for the petitioner has made a futile attempt to assert that the statements of above mentioned witnesses are not worthy of credence as the same are pregnant with serious infirmities and contradictions. Having considered the matter from all angles, we are of the considered view that Courts below have correctly appreciated the evidence on record and this Court in exercise of its Constitutional jurisdiction cannot interfere with the finding of fact, even if with appraisal of evidence it was possible to reach to a different conclusion, unless it was shown that such findings by the lower Courts suffered from misreading/non-reading, which had affected the findings on merits." In Abdul Wali Khan through Legal Heirs and others vs. Muhammad Saleh (1998 SCMR 760), it was held:
"According to established law, High Court cannot interfere in the findings of fact which may not be even if on the appraisal of evidence it was possible to reach to a different conclusion unless it was shown that such a finding by the lower Court suffered from misreading or non-reading of evidence which had affected the findings on merits."
(Aliya Sattar Chaudhry) Petition dismissed
PLJ 2006 Peshawar 168 (DB)
Present: Ijaz-ul-Hassan and Fazal-ur-Rehman Khan, JJ.
MIAN RAHIM SHAH--Petitioner
versus
CHIEF ELECTION COMMISSIONER OF PAKISTAN & others--Respondents
W.P.No. 1628 of 2005, decided on 26.12.2005.
N.W.F.P. Local Government Ordinance, 1979 (IV of 1979)--
----Ss. 3 & 9--Constitution of Pakistan 1973--Art. 199--Constitutional petition--Local Council Elections--Recounting of votes--Interruption and obstruction of female voters--Women were not permitted to cast their votes--Interruption and obstruction during election process--Order for repolling by District Returning Officer--Validity--Petitioner alongwith respondent moved application regarding interruption and obstruction of female voters in polling stations and same was subsequently withdrawn--Thorough probe was made into matter in which petitioner duly participated--Respondent after thorough probe and inquiry issued order for re-polling of aforesaid polling stations--Held: Re-polling has been ordered to promote justice and give female voters their due right of vote--Further held: Impugned order was neither arbitrary, illegal, malafide, discriminatory nor same took any right of petitioner--Petitions, having been found bereft of substance were dismissed. [Pp. 170 & 171] A
Qazi Muhammad Anwar, Mr. Ali Jamil Qazi and Miss Musarat Hilali, Advocates for Petitioner.
M/s Syed Iftikhar Hussain Gillani, Barrister Masood Kauser and Ejaz Khan, Advocates for Respondents.
Date of hearing : 12.12.2005.
Judgment
Ijaz-ul-Hassan, J.--We intend to decide the following writ petitions by one consolidated order having similar facts and law:--
W.P. No. 1628/2005.
W.P. No. 1742/2005.
The brief facts out of which the aforesaid writ petitions arise are, that Mian Rahim Shah, petitioner alongwith Mian Jamsheduddin, Osaid Abbas, Zahid Gul, Amir Nawab and Shah Nawaz Khattak, Respondents 4 to 8 contested elections for Nazim, Naib
Nazim respectively in the Union Council, Ziarat Kaka Sahib, District Nowshera. The petitioner was declared returned candidate, vide Election Form No. XVI dated 19.8.2005, in Gazette Notification of even date. The petitioner bagged 2470 votes, whereas Respondent No. 4 was declared to have bagged 2467 votes and the third candidate namely, Amir
Nawab, for the post of Nazim was declared to have bagged 393 votes. Seemingly aggrieved, Respondent No. 4 moved an application to the Returning Officer, District Nowshera, Respondent No. 2 for recounting of votes. The application of Respondent No. 4 was allowed to the extent that only the excluded votes shall be looked into. The excluded votes were duly examined and one vote was declared to be in favour of Respondent
No. 4 vide Order dated 20.8.2005. Respondent No. 4 moved another application to
Respondent No. 2 for total recount of votes. The application was rejected and
Respondent No. 4 was directed to approach the Election Tribunal for redressal of his grievance. On 23.8.2005, office of the
Chief Election Commissioner, Islamabad, Respondent No. 1 issued letter/direction to Respondent No. 2 to the effect that the result of Union Council, Ziarat Kaka Sahib, District Nowshera be withheld till recounting of votes is carried out. The petitioner, feeling aggrieved, filed a
Writ Petition No. 533/2005 in this Court, assailing the aforesaid order dated 23.8.2005, on variety of grounds, vide order dated 1.9.2005. The writ petition was, subsequently, withdrawn vide order dated 8.9.2005 in the light of notification dated 21.9.2005. The grievance of the petitioner in nutshell is that on 21.9.2005 he came to know that Respondent No. 3 i.e. District Returning
Officer, Union Council Ziarat Kaka Sahib, District Nowshera had ordered re-polling and the date fixed for re-polling was 26.9.2005. He approached the
District Returning Officer for verification of the said order of re-polling but he was not provided the order of re-polling. The petitioner moved Respondent
No. 1 for clarification and he was informed that Respondent No. 3 has been directed for re-polling to the petitioner on two polling stations i.e. GMS Manal' (female) and GGPSWalai'
(female).
Qazi Muhammad Anwar, Advocate, appearing on behalf of the petitioner in W.P. No. 1628/2005, mainly contended that the impugned directive/letter of Respondent No. 1 for re-polling of votes at polling stations Manai' (female) andWalai' (female) is unjustified and unwarranted by law; that
Respondent No. 1 has no jurisdiction under the law to pass such an order after the petitioner was duly notified as a returned candidate in the official gazette; that order of Respondent No. 1 and the consequent order of Respondent
No. 3 is baseless, arbitrary and devoid of any consideration and that the entire exercise of Respondent No. 4 is malafide and is directed towards frustrating the due process of election under the law.
Concluding the arguments, learned counsel submitted that the petitioners was condemned unheard and no notice was given to him either at the time the matter relating to re-polling at the said women polling station was being considered by Respondent No. 1 or subsequent thereof, which has materially prejudiced the interest of the petitioner.
Miss Musarrat Hilali, Advocate for the petitioner in W.P. No. 1742/2005, adopted the arguments of Qazi Muhammad Anwar and prayed that impugned directive/action of Respondent No. 3 not allowing the petitioner to contest election for the office of Naib Nazim, District Nowshera, is highly discriminatory and may be suspended or in the alternative the election for the office of Naib Nazim be postponed for the time being.
Syed Iftikhar Hussain Gillani, Advocate representing Mian Jamsheduddin, Respondent No. 4, on the other hand, supported the impugned directive/order whole heartedly and reiterated that more than 100 female voters of polling stations GMS Manai' (female) and GGPSWalai (female) were not permitted to cast their votes and were interrupted and obstructed during the election process, which motivated them to approach the learned Chief Election Commissioner of Pakistan to probe into the matter and redress their grievance. The learned contended that the impugned directive/order has been passed strictly in accordance with law and hardly calls for interference of this Court in its Constitutional jurisdiction.
To argument the contentions, he placed reliance on PLD 2002 Supreme Court 184, PLD 1989 Supreme Court 166, 1981 SCMR 919 and 1981 SCMR 1250 and PLD 1989
Peshawar 112.
We have heard at length, arguments and submissions of learned counsel for the parties with reference to the material on the file.
Having adjudged the matter from all angles, in the light of the material on the file, we are of the considered view that the impugned order dated 21.9.2005 has been passed well within the four corners of law and hardly requires interference of this Court in writ jurisdiction. A perusal of the record would reveal that more than 100 female voters of two polling stations i.e. GMS Manai' (female) GGPSWalai'
(female), were not permitted to cast their votes and were interrupted and obstructed during the election process. This fact has been verified by the
Presiding Officer of concerned polling stations. The petitioner alongwith Respondent No. 5 moved an application to
Respondent No. 2 regarding the interruption and obstruction of female voters in the above said polling stations and the same was subsequently withdrawn. A thorough probe was made into the matter, in which the petitioner duly participated. Respondent No. 3 after thorough probe and inquiry, issued order for re-polling of the aforesaid polling stations. The re-polling has been ordered to promote justice and give the female voters of above mentioned polling stations their due right of vote. The impugned order is neither arbitrary, illegal, malafide, discriminatory nor the same takes any right of the petitioner. Complete justice having been done between the parties, we do not feel inclined to exercise our discretion in favour of the petitioner. The petitions, having been found bereft of substance are hereby dismissed, with no order as to costs.
(Aliya Sattar Chaudhry) Petition dismissed.
PLJ 2006 Peshawar 171 (DB)
Present: Muhammad Qaim Jan Khan and Salim Khan, JJ.
COLLECTOR OF CUSTOMS, PESHAWAR--Appellant
versus
MAJ. GENERAL MEHRABUDDIN--Respondent
SAO No. 44 of 2005 with CM No. 372 of 2005(M), decided on 13.10.2005.
Customs Act, 1969 (V of 1969)--
----Ss. 19 & 32--Exemption--Entitlement to confiscation--Production of un-authentic sale permission--Imposition of penalty--Setting aside order by Tribunal with directions to restore vehicle to its rightful owner--Validity--More than five years have passed after original purchase of car in question and no payment of government dues, duties and taxes is involved in light of relevant SRO and car in question is still in name of respondent, but no steps for sale of same have been taken except that respondent voluntarily produced car for assessment of duties/taxes, if any certain benefits regarding purchase, maintenance and sale of car in question had accrued to respondent as result of promulgation and implementation of law and due to completion of prescribed period--Held: Law could not be mis-interpreted for purpose of depriving respondent of benefits--Further held: Impugned order of Tribunal was based on correct interpretation of law and its proper application to facts of case--Appeal dismissed. [Pp. 172 & 173] A, B & C
Mr. Waqar Ahmad Seth, Advocate for Appellant.
Date of hearing : 13.10.2005.
Order
Salim Khan, J.--The present second appeal is against the judgment/order dated 10.6.2005 in Appeal No. 7(571)CU/IB/2000(PB) of the learned Appellate Tribunal, Customs, Central Excise and Sales Tax, Peshawar Bench, vide which it was held that the appellant and his organization were not entitled to the confiscation of car of the respondent. We heard the learned counsel for the appellant and perused the record.
It was alleged against the present respondent that he had produced a fake and non-genuine letter of sale permission and, therefore, he was liable to the penalty for violating Sections 19 and 32 of the Customs Act, 1969. The learned Additional Collector, vide his order dated 20.9.2000 in case Order-in-Original No. 162/2000 held that due to denial by the Ministry of Foreign Affairs regarding letter bearing C.No. F. No./PCD/889/99 dated 16.10.1999, the owner Major General (Rtd.) Mehrabuddin had utterly failed to produce authentic sale permission enabling him to avail exemption under SRO No. 506 (1)/88 dated 26.6.1988.
The learned Appellate Tribunal took the whole case into consideration, and came to the conclusion that the above mentioned Order-in-Original was not based on solid reasons and was liable to setting aside. For the reasons given in the judgment in Appeal No. 7(571) CU/1B/2000(PB), the learned Judicial Member of the Customs, Central Excise and Sales Tax Appellate Tribunal, Peshawar Bench, accepted the appeal, set aside the impugned Order-in-Original and directed the respondents to restore the vehicle in question to its rightful owner, if not required in any other case.
It is not denied on record that more than five years have passed after the original purchase of the car in question and no payment of Government due, duties and taxes is involved in the light of the relevant SRO, and the car in question is still in the name of the respondent, but no steps for sale of the same have been taken, except that the respondent voluntarily produced the car for assessment of duties/takes, if any.
As quoted by the learned Additional Collector as well as by the learned Member of the Appellate Tribunal of Customs, Central Excise and Sales Tax, the text of the letter of Ministry of Foreign Affairs, Islamabad, with respect to sale permission reads as under:--
"It is stated that as per record of the Ministry no such NOC bearing C.No. F. No./PCD/889/99 dated 16.10.99, was issued from this Ministry. Neither the reference No. mentioned in the NOC nor the signing officer/designation belongs to this Ministry. However, the issuance of Sale Permission No. (IV)-10/94/98 dated 26.2.1999 is confirmed."
The Sale Permission No. (IV)-10/94/98 dated 26.2.1999 has been confirmed by the Ministry of Foreign Affairs, Government of Pakistan, Islamabad, in favour of the respondent who was a diplomat. The other mentioned document appears to be the result of some misunderstanding, otherwise the respondent was not normally expected to produce the same. Certain benefits regarding the purchase, maintenance, and sale of the car in question had accrued to the respondent as a result of promulgation and implementation of law and due to completion of the prescribed period. The law could not be mis-interpreted for the purpose of depriving the respondent of the said benefits. The impugned judgment/order of the learned Appellate Tribunal is based on correct interpretation of law and its proper application to the facts of the case in hand.
(Aliya Sattar Chaudhry) Order accordingly.
PLJ 2006 Peshawar 173 (DB)
Present: Muhammad Qaim Jan Khan and Salim Khan, JJ.
ABDUL QADUS & 5 others--Petitioners
versus
GOVERNMENT OF NWFP through CHIEF SECRETARY, PESHAWAR and 3 others--Respondents
W.P. No. 1161 of 2004, decided on 28.12.2005.
N.W.F.P. Civil Servants (Appointment, Promotion & Transfer) Rules, 1989--
----R. 3--Constitution of Pakistan, 1973, Arts. 199 & 212--Constitutional petition--Method of appointment--Reserved quota for disabled candidate--Recruitment by transfer--Validity--Appointment to posts of primary school teacher (male) was by initial recruitment and no person could be appointed to post on transfer--Concerned department was obliged to count all posts available vacant on date of appointment, reserve 2% posts for disabled persons and distribute remaining 98% into 25% for district level and 75%for union council level--It would be utter violation of relevant notified Rule, if any person was appointed against that posts by any other method including promotion and transfer, other than by method of initial recruitment--Held: Petitioners would be considered and if found entitled shall be appointed against respective posts in District against reserved quota at district level or as case might be in their respective union council against available vacancies in accordance with respective merit. [Pp. 175 & 176] A & B
Mr. Azizur Rahman, Advocate for Petitioners.
Mr. Arbab M. Usman, AAG for Respondents.
Date of hearing : 18.11.2005.
Judgment
Salim Khan, J.--Abdul Qadoos and five others, named as petitioners, alleged that certain posts were advertised in daily `Mashriq' on 22.2.2004, that twenty five per cent of the posts were to be filled on district level merit and seventy five per cent of the same were to be filled on Union Council level merit, while two per cent out of the total were reserved for disabled candidates, that seven vacancies were available in the Union Council, Bara Bandai, against which only two persons were appointed, but the remaining five posts were filled by transfer, that the rules were violated and the petitioners were deprived of their rights of expected appointment, inspite of the fact that they had cleared the test and interview. They further contended that they were on the merits' list prepared by the official respondents and were entitled to appointment.
We heard the arguments of Mr. Azizur-Rehman, Advocate, for the petitioners as well as Arbab Muhammad Usman, Addl. AG for the official respondents, and perused the available record.
The learned counsel for the petitioners referred to the merit list, on which the names of the petitioners appear at Serials Nos. 3 to 8, but the petitioners at Serials Nos. 3, 5, 7 and 8 belong to Bara Baindai while Muhammad Afzal Khan and Ali Rehman belong to Ghwaraja respectively. It was admitted by the respondents in their comments that some vacancies of Primary School Teachers (PTC) occurred, but the same were filled through transfer. The learned Addl. AG referred to Rule 3 of the NWFP Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, and submitted that vacant posts could be filled by transfer which was one of the methods of appointment to the posts. The overall effect of Rule 3, quoted below, is different from the viewpoint of the learned Addl. AG.
"3. Method of appointment.--(1) Appointment to posts shall be made by any of the following methods, namely--
(a) by promotion or transfer in accordance with the provisions contained in Part II of these rules; and
(b) by initial recruitment in accordance with the provisions contained in Part III.
(2) The method of appointment, qualifications and other conditions applicable to a post shall be such as laid down by the Department concerned in consultation with the Service and General Administration Department and the Finance Department."
The Services and General Administration Department has already been divided into (i) Establishment Department, and (ii) Administration Department. For consultation with the Establishment Department and Finance Department by the concerned Department, a Committee by the name of Standing Service Rules Committee (S.S.R.C.) is constituted where proposal of the concerned Department for prescribing the method of appointment, qualifications and other conditions to a post is discussed by the representative of the Establishment Department, Finance Department and the concerned Department with the authorized representative of the Law Department, and after deliberation and discussion, the relevant Rules are drafted and recommended to the concerned Department by the said Committee, and, after acceptance of the recommendation by the concerned Department, the same are further processed for approval, and after approval of the competent authority, are notified. On such notification, the method of appointment to a post prescribed in the mentioned notification becomes the only method by which appointment to a concerned post can be made, and no other method, as mentioned in Rule 3 quoted above, can be applied for appointment to such post. There are three methods of appointment (a) by promotion, (b) by transfer and (c) by initial recruitment, but any of the above mentioned methods can be selected and prescribed for a certain post. After that no, other method, except the one prescribed, is applied for the purposes of appointment to such a post.
The qualifications age limit, and method of recruitment for the post of Primary School Teacher (PST) (Male) are shown in the School and Literacy Department circular Letter No. SOG/S&L/1-28/2003/SSRC dated 30.12.2003, as mentioned in the letter of even number dated 15.11.2003. The method of recruitment in the said circular has been prescribed as under:--
Primary School Teacher (PST) (Male)--By initial recruitment in the following manner. 25% recruitment shall be made on district level merit and 75% on Union Council level merit:
Provided that 2% of the vacancies shall be filled from such disable candidate whose disability does not hinder in performance of their duty.
Note:--In case eligible candidates in a certain Union Councils are not available, the recruitment on vacant post will be filled from the adjacent Union Councils in the same district possessing the qualification as a stop-gap arrangement: provided that their contract shall not be extended after a qualified candidate/s in the Union Council concerned become available.
The copy of advertisement shows that vacant posts of Primary School Teachers (PTC) (existing and expected) were advertised on 22.2.2004. Para-3 of the necessary instructions in the said advertisement shows that seventy five per cent of the vacancies were to be filled on Union Council basis and twenty five per cent of them on district open merit basis. The copy of Letter No. BOV/F D/3-12/2002-2003/Rationalisation dated 20.12.2003 of the Finance Department is with regard to the creation/distribution of 4000 additional posts of Primary Teachers in NWFP.
As quoted earlier, the only method of appointment to the posts of Primary School Teacher (Male) was by initial recruitment and no person could be appointed to a post on transfer. The concerned Department was obliged to count all the posts available vacant on the date of appointment, reserve two per cent of those posts for disabled persons, and distribute the remaining ninety eight per cent into twenty five per cent for district level merit and seventy five per cent for Union Council level merit. It would be utter violation of the relevant notified Rule, if any person was appointed against the said posts by any other method, including promotion and transfer, other than by the method of initial recruitment. In their comments, Respon-dents Nos. 3 and 4 admitted that certain vacancies were or became available upto the date of order of appointment, but those were filled through transfer.
In the light of the above, we have come to the conclusion that the present writ petition merits acceptance, and we do the same. We direct the respondents to count all the relevant vacancies of the concerned Department in District Swat, which were or became vacant from the date of Advertisement (22.2.2004) till the date of appointment of the candidates against some of the posts by initial appointment, to reserve two per cent of all the vacancies for disabled persons, to distribute the remaining ninety eight per cent of the vacancies into the ratio of twenty five per cent for district level merit and seventy five per cent for Local Council basis merit, and to remove the persons appointed against the said posts by transfer, or any other method, except by initial recruitment. In consequence of the above mentioned exercise, the petitioners shall be considered and, if found entitled, shall be appointed against the respective posts in the District against the reserved quota at district level, or, as the case may be, in their respective Union Councils against the available vacancies in accordance with their respective merit. Any one, more or of all the petitioners, as the case may be, shall have right to approach this Court again, if the above directions are not properly complied with by the respondents. We further direct the respondents to hold inquiry and fix responsibility on the persons who violated the above quoted rules duly noticed, and who ignored the above referred advertisement, and deprived the petitioners of their right of excepted appointment till now.
(A.S.) Petition accepted.
PLJ 2006 Peshawar 176
Present: Ijaz-ul-Hassan Khan, J.
FAQIR REHMAN--Petitioner
versus
JAFFAR KHAN--Respondent
Civil Revision No. 367 of 2003, decided 3.10.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O. VIII, Rr. 1, 8 & 10--Submission of--Written statement--Non-submitting/filing of written statement--Scope--Right of defence was struck off--Effect of--A written statement is the statement filed by defendant in answer to plaint and constitutes his defence--Without a formal order of Court, at any stage prior to first hearing, defendant had a right to file written statement but subsequently could not do so without order of Court--Required written statement had not been filed, two alternative were, pronouncement of judgment forthwith or making of such order--Discretionary power of Court to apply provisions of R. 10, of O. VIII, C.P.C.--Judgment pronounced even without recording statement, yet the judgment pronounces should be on the basis of facts before it--Punitive action should only be taken in severe circumstances--Court could in alternative award costs and grant an adjournment, or proceed to record evidence ex-parte and then pronounce judgment--Held: Provisions of VIII, R. 1 C.P.C. had not been strictly adhered to and punitive action had been taken without any justifiable reason--Impugned order seem to had been passed in haste without application of judicial mind and such were not sustainable in the eye of law--Order accordingly. [P. 178] A
PLD 2002 SC 630 and 2002 CLC 1085, ref.
Mr. Muhammad Aman Khan, Advocate for Petitioner.
Mrs. Shah Nawaz Khan and Mr. Umar Zafran, Advocate for Respondent.
Date of hearing : 23.9.2005.
Judgment
Shortly narrated the facts relevant for the disposal of instant revision petition are, that a suit was instituted by the predecessor-in-interest of Respondents Nos. 11 to 15 against Respondents Nos. 1 to 10 in the Court of Civil Judge, Swabi for declaration to the effect that they were owners in possession suit land, detailed in the plaint; that they had not mortgaged the suit-land and that entry in favour of defendant was void, illegal and ineffective on the rights of the plaintiffs/Respondents Nos. 11 to 15. A prayer for possession of suit-land and in alternative for redemption on payment of Rs. 500 was also made. The defendants/Respondents 1 to 7 submitted their written statement, raising various legal and factual objections to the contents of the plaint. At this juncture, an application was moved by Faqir Rehman petitioner for impleading him as party to the suit. The application was rejected by the trial Court as well as the Appellate Court. Feeling aggrieved, the petitioner filed a writ petition before this Court, which was accepted vide order, dated 17.10.2001 and the petitioner was ordered to be impleaded as party to the suit. After his impleadment as party, the petitioner submitted an application for transposition from defendant to plaintiff, which was rejected by the trial Court, vide order, dated 6.1.2002 with direction to the plaintiff to submit written statement on 12.2.2002. The written statement was not submitted and defence of the petitioner was struck off under Order XVII, Rule 3, C.P.C., vide order, dated 20.2.2002. An appeal was preferred thereagainst, which was dismissed by consolidated judgment, dated 21.3.2003. Hence instant revision petition under Section 115 of the Code of Civil Procedure (Act V of 1908).
I have heard Mr. Muhammad Aman Khan, Advocate for the petitioner and Mr. Muzammil Khan, Advocate for the respondents in the light of the material on record.
A written statement is the statement filed by the defendant in answer to the plaint and constitutes his defence. The defendant has a right to file a written statement without a formal order of the Court, at any stage prior to the first hearing, but he cannot subsequently do so without the order or leave of the Court. Where the required written statement had not been filed, there are two alternatives namely, the pronouncement of judgment forthwith or the making of such other order. Though it is discretionary with the Court to apply the penal provisions of Rule 10, and judgment can be pronounced even without recording evidence, yet the judgment it pronounces should be on the basis of facts before it. Punitive action should only be taken in severe circumstances. The Court may in the alterative award costs and grant an adjournment, or proceed to record evidence ex parte and then pronounce judgment. Col. (Retd.) Ayub Ali Rana v. Dr. Carlite S. Pune and another PLD 2002 SC 630 and Mst. Najma Yasmin and another v. Mst. Firdous Khalid and 2 others 2002 CLC 1085. In the instant case provisions of Order VIII, Rule 1, C.P.C. have not been strictly adhered to and punitive action has been taken without any justifiable reason: The impugned orders seem to have been passed in haste without application of judicial mind and as such are not sustainable in the eye of law. The first prayer of the petitioner regarding submission of written statement is accepted, whereas the second prayer for transposition from the panel of defendant to the panel of plaintiff cannot be granted in view of the order of this Court which still holds the field. The revision petition partially succeeds and disposed of in the above terms. No order as to costs.
(Aliya Sattar Chaudhry) Order accordingly.
PLJ 2006 Peshawar 178 (DB)
Present: Shah Jehan Khan and Raj Muhammad Khan, JJ.
HIMAYATULLAH MAYAR DISTRICT NAZIM DISTT.MARDAN--Petitioner
versus
GOVERNMENT OF N.W.F.P. through SECRETARY, SCHOOLS & LITERACY DEPARTMENT CIVIL SECRETARIAT, PESHAWARand 5 others--Respondents
W.P. No. 157 of 2006, decided on 6.4.2006.
North West Frontier Province District Government Rules of Business, 2001--
----R. 25 & Schd. IV--Constitution of Pakistan (1973), Art. 199--Legality of two notifications of Government, providing transfer of D.D.O. Takht Bhai to Mardan and D.D.O, Mardan to Takht Bhai and subsequently to Takar as Headmistress G.G. H.S., assailed by District Nazim/Petitioner on the ground that he was not consulted before ordering such transfers which is legal requirement in terms of R. 25 of Rules of 2001, therefore, notifications in question be declared to be without lawful authority and of no legal consequence--Government functionaries have not contested/ rebutted legal provision of consultation of District Nazim in matter of transfer to officers in B.P.S. 17 and above which is mandatory u/R. 25 of Rules of 2001 read with Schedule-IV thereunder--Transfers of two lady D.D.O's were thus, declared to be without lawful authority and of no legal effect--D.D.O. Mardan would thus, remain posted at Mardan as proposed by District Nazim Mardan while D.D.O. Takht Bhai's transfer as Headmistress High School as desired both by petitioners and D.D.O. concerned was confirmed. [Pp. 181 & 182] A
Mr. Muzammal Khan, Advocate for Petitioner.
Mr. Muhammad Ayaz Khan, D.A.G. with Muhammad Yousaf Qadri, S.O.L.G. & Mr. Khushdail Khan, Advocate for Respondents.
Date of hearing : 6.4.2006.
Judgment
Raj Muhammad Khan, J.--Himayatullah Mayar District Nazim District Mardan elected so in the Local Government Elections held in 2005, through the instant writ petition has challenged the legality of two notifications of the Government of NWFP Schools and Literacy Department Bearing No. SO(S)4-16/2005 Ms. Rukhsana Rahim dated Peshawar, the 17th January, 2006 providing, inter alia, for transfer of Ms. Rukhsana Rahim DDO(F) Takht Bhai to Mardan (Respondent No. 5) and Ms. Bakhtiar Hanif DDO(F)(BS-17) S&L Mardan (Respondent No. 6) to Takht Bhai and No. SO(S)4-16/2005/Ms. Rukhsana Rahim dated Peshawar, the 19th January, 2006 providing, inter alia, for transfer of Ms. Bakhtiar Hanif, DDO(F) (BS-17) S&L Mardan (Respondent No. 6) (under transfer as DDO(F) S&L Takht Bhai) to Takar as Head-mistress GGHS. The transfer of Ms. Bakhtiar Hanif has taken place within the District Mardan from one station to other. This transfer has made the petitioner District Nazim aggrieved as according to him he was not consulted by the Provincial Government of NWFP as was required under Rule 25 of the NWFP District Governments Rules of Business, 2001 (hereinafter called the Rules), notified on 30.10.2001 under Section 191 of the NWFP Local Government Ordinance, 2001 (NWFP Ordinance XIV of 2001) read with Section 31 thereof.
Schedule-IV made under Rule 25 of these Rules which was published vide Notification No. Admn: (LG)/DG/1(28)/2001 dated Peshawar, the 10th July, 2003 specifically provides for posting and transfer of officers/officials shown in Column 2 thereof to be made by authorities shown against such officers/officials in Column 3 thereof. The said schedule which has been amended from time to time and lastly by notification dated 10th July, 2003 provides for transfer of officers in BPS-17 and above in the District by the Provincial Government in consultation with the Zilla Nazim. It is asserted by the petitioner that the Provincial Government had transferred Ms. Rukhsana Rahim Respondent No. 5 as DDO(F) to Mardan while transferred Respondent No. 6 Ms. Bakhtiar Hanif, DDO(F) to Takht Bhai vide notification dated 17.1.2006 referred to above and just after few days on 19.1.2006 transferred Ms. Bakhtiar Hanif (Respondent No. 6) as Headmistress, GGHS to Takar against Ms. Safia Taj. DDO(F) without consultation of the petitioner as was required under the Rules. According to the petitioner, such arbitrary action of the Government Department amounted direct interference in the affairs of the District Government and thus was without lawful authority. It was further stated that the last notification of transfer was against basic policy of devolution of power and also against the mechanism of the Ordinance and was thus not maintainable. That despite having suggested and recommended to the concerned, no response was given to him and finding no efficacious remedy elsewhere, he has approached this Court for the needful. It was prayed that the impugned two notifications dated 17.1.2006 and 19.1.2006 may be declared as illegal and without lawful authority as were violative of the Schedule-IV of the Rules ibid and may be set aside with direction to the Government of NWFP, Respondent No. 1 to act in the matter in accordance with law.
After obtaining comments from Respondents Nos. 1 and 2, we have heard the parties and gone through the record.
The main defence taken by the contesting respondents, who are Government functionaries, in their objection to the maintainability of the instant writ petition on the grounds that it is hit by the principle of resjudicata inasmuch as similar petition was previously withdrawn by the Ex. District Nazim Mardan named Muhammad Raza Khan and that the Chief Secretary to the Government of NWFP was necessary party to this case who has not been impleaded as such.
So for the earlier similar petition is concerned, which was W.P. No. 1065/2004 filed in this Court, had assailed notification dated 1.6.2004 whereby Respondent No. 1 had transferred and posted Ms. Rukhsana Rahim (Respondent No. 5) as Headmistress GGHS Qasimi Mardan allegedly without consultation of the then District Nazim. The present writ petition calls into question other notifications dated 17.1.2006 and 19.1.2006. Thus the earlier Writ Petition No. 1065/2004 cannot be termed to be hit by the principle of resjudicata as the notifications involved in these petitions are quite different interest.
So for the impleadment of Chief Secretary of the Government of NWFP as party to the case is concerned, the concerned departments are already represented in the instant petition through their respective Secretaries and interestingly, there is no mention of the Chief Secretary in any document to be relevant to the instant case. Thus the Chief Secretary does not appear to be necessary party to this petition since efficacious relief can be given in the matter even if the Chief Secretary is not arrayed as respondent to the case in hand.
As regards merits of the case, Rule 25(1) of the Rules provide as under:--
"25. Posting and transfer.--(1) Posting/Transfer of Officers/Officials shown in Column 2 of Schedule-IV shall be made by the authorities shown against such officers/officials in column 3 thereof.
SCHEDULE-IV
(See Rule-25)
S.No. Officers Authority
2 3
Other Officer in BPS-17 Provincial Government
and above in the in consultation with
District. the Zilla Nazim.
(Aziz Ahmad Tarar) Order accordingly.
PLJ 2006 Peshawar 182 (DB)
Present: Nasir-ul-Mulk, C.J. and Ijaz-ul-Hassan, J.
IHSAN-UL-HAQ--Appellants
versus
EXECUTIVE ENGINEER HIGHWAY and others--Respondent
RFA No. 50 of 1999, heard on 22.3.2005.
Land Acquisition Act, 1894 (I of 1894)--
----Ss. 4, 18, 23 & 54--Acquisition of land--Determination of compensation--Compensation of acquired land was quite adequate and fair in view of material on record and report of Local Commission appointed by the Court--Local Commissioner had given a detail and comprehensive report which had been rightly taken into consideration and made basis of impugned decision--Nothing was on file to demonstrate that local commission had gone out of the way--Local Commission had taken every aspect of the case into account and had prepared detailed and comprehsensive report which could not be ignored--Appellant was unable to point out any misreading or non-reading of evidence resulting into miscarriage of justice--Appeal was dismissed. [Pp. 183 & 184] A & B
Mr. Tauqeer Lodhi & M. Alam, Advocates for Appellants.
Mr. M. Ayaz Khan, Addl. Advocate General for Respondents.
Date of hearing : 22.3.2005.
Judgment
Ijaz-ul-Hassan, J.--RFA No. 50/99 titled Ihsan-ul-Haq and others appellants vs. Executive Engineer Highway, Mardan Division Mardan and others, respondents and RFA No. 70/99, titled Collector Land Acquisition, Nowshera and other appellants vs. Ihsanul Haq and others, respondents, call in question the legality and propriety of the impugned judgment and decree dated 14.7.1999 announced by learned Senior Civil Judge/Referee Judge, Nowshera in Objection Petition No. 6/4 of 1994, enhancing compensation amount of the land in question. This common judgment is proposed to disposed of both the appeals.
Vide Award No. 4/143/LAC NSR, the Collector acquired land including land of Ihsan-ul-Haq and others for construction of a bridge and approach road for `chowki' District Nowshera. The compensation amount not acceptable to appellants Ihsan-ul-Haq and others, they filed a reference under Section 18 of the Land Acquisition Act, 1894, seeking enhancement in the rate of compensation with compulsory acquisition charge etc. The reference was resisted and claim of the appellants was denied. Relevant issues were formulated for trial and the parties produced pro and contra evidence. At the conclusion, by means of judgment and decree dated 14.7.1999, the learned trial Judge fixed a sum of Rs. 10,000/- per marla as sale price of the land in question alongwith 15% compulsory acquisition charges plus 6% interest from 4.10.1992 till payment/deposit of the entire compensation amount.
The land owners namely, Ihsan-ul-Haq and others as well as the Collector Acquisition, feeling aggrieved of the rate of compensation have approached this Court by way of filing instant appeals.
Mr. Tauqeer Ahmad Lodhi, Advocate, learned counsel for Ihsan-ul-Haq and others appellants in RFA 50/99 bitterly criticized the impugned and decree and attempted to argue that the learned trial judge had not properly appreciated the evidence and other material on record; that the report of the local commission was ignored and kept aside without any valid reasons that owners of the adjoining lands have been adequately compensated viz-a-viz the appellants and that no compensation has been awarded for standing crops and fruit trees which has resulted in manifest injustice.
Contrarily, Mr. Muhammad Ayaz, Deputy Advocate General maintained that the compensation amount has been increased without any justifiable reason; that learned trial judge has wrongly relied upon the report of local commission which itself was based on no evidence; that the market value of land is to be taken as existing on date of publication of notification under Section 4(1) of the Land Acquisition Act, 1894 in view of Section 23 of the same Act; that the price already fixed in the Award was quite adequate and the Land Acquisition Collector had assessed the price of land keeping all the considerations in view and in the absence of solid documentary evidence learned trial Court was not justified to enhance the rate of land from Rs. 1004/- to Rs. 10,000/- per marla.
We have heard the learned counsel for the parties at some length and have also gone through the record minutely. We are of the view that the compensation determined by the learned Senior Civil Judge/Referee Judge, Nowshera is quite adequate and fair in view of the material on record and the report of the local commission appointed by the Court pursuant to the remand order of this Court. The local commissioner has given a detailed and comprehensive report which has been rightly taken into consideration and made basis of the impugned decision. There is nothing on the file to demonstrate that the local commission has gone out of the way and as such, his report is not worth reliance. He has taken every aspect of the case into account and has prepared a detailed and comprehensive report which cannot be ignored. It has been mainly submitted on behalf of the appellants that the impugned judgment and decree suffers from the vice of mis-reading and non-reading of evidence and is not sustainable under the law. The submission is devoid of force. The learned counsel has remained unable to point out any such mis-reading or non-appreciating evidence resulting into mis-carriage of justice. Finding no fault with the impugned judgment and decree, we maintain the same and dismiss the appeals with no order as to costs.
We had, by our short order announced in Court on 22.3.2005 dismissed the appeals and maintained the impugned judgment and decree, for reasons to be recorded later. Above are detailed reasons for the same.
(Rafaqat Ali Sohal) Appeal dismissed
PLJ 2006 Peshawar 184
Present: Ijaz-ul-Hassan, J.
ZAMAN SHAH (deceased) through Legal Representatives--Petitioners
versus
SHAHZADA (deceased) through Legal Representatives--Respondents
C.R.No. 660 of 2005, heard on 13.2.2006.
North West Frontier Province Pre-emption Act, 1987 (X of 1987)--
----S. 12--Civil Procedure Code (V of 1908), O. XLI, R. 31 & S. 115--Suit for pre-emption decreed by Courts below, assailed--Legality--Finding of fact recorded by trial Court regarding performance of talbs as affirmed by Appellate Court was based on correct and fair appraisal of evidence and grounds urged stood conclusively determined by judgments of Courts below--High Court has very limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under S. 115 C.P.C. unless and until judgments impugned were result of misreading or non-reading of evidence or decision of Court was in violation of parameters prescribed by superior Courts--All legal formalities have been complied with and no prejudice seems to have been caused to appellants--Judgment of Appellate Court has been recorded keeping in view provisions contained in O. XLI, R. 31 C.P.C.--Non-reading or mis-reading of evidence, was neither pointed out nor any material irregularity or jurisdictional defect was apparent in judgment to justify interference in revisional jurisdiction. [Pp. 185 & 186] A
2002 CLC 1225 and 2006 CLC 35, ref.
Mr. Jamal Shah, Advocate for Petitioners.
Date of hearing : 13.2.2006.
Order
This civil revision impugns the judgment and decree dated 24.1.2005, passed by Additional District Judge, Mardan at Takht Bhai, whereby the appeal arising from judgment and decree dated 19.5.2004, passed by Civil Judge, Takht Bhai, Mardan has been dismissed.
Shortly narrated the facts are, that the predecessor-in-interest of Respondents Nos. 1 to 3 namely, Shahzada (deceased) and Shamshad Respondent No. 4 had instituted rival pre-emption suits on 23.7.1998 and 21.9.1998 respectively, against the predecessor-in-interest of petitioners, namely, Zaman Shah in respect of sale Mutation No. 492, attested on 25.10.1997, regarding land measuring 2 kanals, in the area of Mauza Lund Khawar, Tehsil Takht Bhai, District Mardan. Both the suits were consolidated and contested on all grounds, legal as well as factual. Relevant issues were framed and after recording such evidence as the parties wished to adduce, learned trial judge dismissed suit of Respondent No. 4, while suit of Shahzada, predecessor-in-interest of Respondents 1 to 3 was decreed against petitioners, through judgment and decree dated 19.5.2004. An appeal was preferred thereagainst, which did not succeed. The same was dismissed by Additional District Judge, Takht Bhai at Mardan, by judgment dated 24.1.2005.
It is contended by the learned counsel for the petitioners that the impugned judgments and decrees of both the Courts below are illegal, against the facts and suffer from the vice of mis-reading and non-reading of the evidence on the record. He also contended that the finding returned on Issue No. 2, regarding performance of `talabs' is wrong and in total disregard to the material on record. In the last limb of arguments, the learned counsel urged that the appellate Court has given no issue-wise findings as provided under Order XLI Rule 31 CPC, which has resulted in complete failure of justice.
Having considered the matter from all angles, I am of the view that the impugned judgments and decrees of the Courts below are unexceptionable and do not suffer from any legal or factual infirmity, warranting interference of this Court in exercise of its revisional jurisdiction. The finding of fact recorded by the trial Court on Issue No. 2 regarding performance of `talabs' and affirmed by the appellant Court are based on correct and fair appraisal of evidence and the grounds urged stand conclusively determined by the judgments of the Courts below. Needless to emphasize that in case the trial Court has exercised jurisdiction which is upheld by the appellate Court, then this Court seldom interferes unless and until the discretion is exercised arbitrarily. This Court has very limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under Section 115 CPC unless and until judgments of the Courts below are result of mis-reading or non-reading of evidence or decision of the case is in violation of parameters prescribed by the superior Courts. Maqsood Ahmad through his father vs. Ali Naqi Shah (2002 CLC 1225) and Hidayatullah Khan vs. Ajmal Khan (2006 CLC 35). Attending to the objection raised by learned counsel for the petitioners regarding non-compliance of requirements of Order XLI Rule 31, CPC, no doubt, it is true that the characteristic of a good judgment is that it must be self evident and self explanatory, in other words, it must contain reasons that justify conclusions arrived at and these reasons should be such that a disinterested reader can find them convincing at least reasonable. In the instant case, all the legal formalities had been duly complied with and no prejudice seems to have been caused to the petitioners. The judgment of the appellant has recorded keeping in view the provisions contained in Order XLI Rule 31 CPC.
In view of the above, I find that neither any non-reading or mis-reading of evidence nor any material irregularity nor any jurisdictional defect could be pointed out to justify interference. The civil revision is devoid of force. The same is dismissed in limine.
(Aziz Ahmad Tarar) Revision dismissed
PLJ 2006 Peshawar 186 (DB)
Present: Shah Jehan Khan and Salim Khan, JJ.
Qazi AZIZ-UL-HAQ alias SHARBANAI and another--Petitioners
versus
DISTRICT JUDGE DIR/UPPER, ELECTION TRIBUNAL and 8 others--Respondents
W.P. No. 2075/2005, decided on 23.2.2006.
North West Frontier Province Local Government (Conduct of Election) Rules, 2005--
----R. 68--Constitution of Pakistan (1973), Art. 199--Petitioners contested election as Nazim and Naib Nazim of Union Council--Deeni Sanad of petitioner/Nazim was declared non-equivalent to Secondary School Certificate/Matric Certificate and election of petitioner was declared null and void, while Matric Certificate of respondent/contestent was found to be fake and bogus, therefore, remaining Respondents Nos. 8 & 9 were declared as successful candidates in place of petitioners--Legality--General public knew that respondent had a Sanad which did not qualify him was contesting elections but even then they did cast their votes in his favour, thus, they themselves threw away their votes in favour of a candidate, who was not qualified to be elected and wrongly exercised their rights of franchise--Those voter are bound by their own fault and cannot claim their right of franchise for the second time, specially when their favorite unqualified candidate is declared disqualified--Election Tribunal was to transfer success in election to other set of candidates which was eligible for the same, however, it was proved that Secondary School Certificate of one of them was fake and bogus, therefore, he along with his joint candidate, due to principle of joint sinker had no right to be declared as successful candidate--Only remaining set i.e. Respondents Nos. 8 and 9 were declared successful candidates--For ousting of Respondents Nos. 6 and 7, petitioners are not aggrieved persons, while grievance of debarred candidates has not been shown before High Court--Writ petition being devoid of merit was dismissed. [Pp. 189 & 190] A
PLD 2003 SC 268 and 2004 CLC 626, ref.
Mr. Khanzada Ajmalzeb, Advocate for Petitioners.
Pir Liaqat Ali, A.A.G. for Respondents.
Date of hearing : 16.2.2006.
Judgment
Salim Khan, J.--Qazi Aziz-ul-Haq and Wazir Muhammad filed this writ petition with the contention that they contested election for the seats of Nazim and Naib Nazim of Union Council, Darangal, as against Ajmal Khan and Sherullah (Respondents Nos. 6 and 7 as one set) and Ahmad Jan and Shah Faisal (Respondents Nos. 8 and 9 as other set). It was contended that the petitioners got the highest number of votes, but, on the basis of election petitions of Ajmal Khan and Sherullah on one side, and Ahmad Jan and Shah Faisal on the other side, the Deeni Sanad of Petitioner No. 1 was declared non-equivalent to Secondary School Certificate/Matric Certificate, and the election of petitioner was declared null and void, while the Matric Certificate of Ajmal Khan (Respondent No. 6) was found fake and bogus, and, therefore, Respondents Nos. 8 and 9 were declared as successful candidates.
The Deeni Sanad of Petitioner No. 1 was declared insufficient and the election of the petitioners was declared null and void due to lack of educational qualifications for the office of Nazim and Naib Nazim of a Union Council, in the light of the judgment of the august Supreme Court of Pakistan in the case of Sanaullah and others Versus District Returning Officer, Mianwali and others announced on 16.8.2005. During the proceedings on election petitions, it was found that Ajmal Khan had first submitted Matric Certificate under Roll No. 18610, but another certificate with Roll No. 18317 of Session 2000 was substituted for the same, which was found fake and bogus. It was held by the learned Judge of the Election Tribunal in his judgment/order dated 19.12.2005 in election petitions of Ajmal Khan and other against Qazi Aziz-ul-Haq and other, Ahmad Jan and other against Aziz-ul-Haq and others, and Qazi Aziz-ul-Haq and other against Ajmal Khan and others that the Deeni Sanad obtained by Petitioner No. 1 from Darul-Uloom outside Asiya Gate, Peshawar, was not equivalent to Secondary School Certificate/Matric Certificate, and that the certificate of Ajmal Khan was fake and bogus. He, therefore, declared the election of the petitioners null and void, but declared Respondents Nos. 8 and 9 as successful candidates.
The learned counsel for the petitioners objected to the date of institution of the election petition of Ahmad Jan on the ground that no date by the learned Tribunal was mentioned on the same, although the date by the petitioners was scribed on the same as 17.9.2005. The heading of the impugned order shows that the election petition of Ahmad Jan was instituted on 17.9.2005, which was never rebutted by the present petitioners before the learned Election Tribunal, and cannot be taken up at this stage, being a question of fact.
The learned counsel for the petitioners further contended that the Deeni Sanad in favour of Petitioner No. 1 issued by Darul-Uloom outside Asiya Gate, Peshawar, mentioned that three additional subjects necessary for passing the Secondary School Certificate Examination/Matric were included in the Sanad and that Petitioner No 1 had passed those subjects. He further contended that he would have proved this fact, had a chance of producing evidence was provided to him. The learned counsel, however, could not produce any document to the effect that the mentioned Darul Uloom was ever affiliated with any Board of Intermediate and Secondary Education, or the additional subjects were ever prescribed by the Educational Institution, to which the said Darul Uloom was affiliated. As has been properly discussed by the learned Judge of the Election Tribunal, the Deeni Sanad of the nature of Sanad of Petitioner No. 1 was declared non-equivalent to Secondary School Certificate/Matric Certificate by the above mentioned judgment in Sanaullah's case as well as the judgments in other relates cases. This fact and legal position was very much clear and known to the general public, and, therefore, there was no need to allow the process of recording evidence to that effect.
The learned counsel for the petitioners further contended that the election petition could not be decided summarily without recording evidence. He referred to Rule 68 of the NWFP Local Government (Conduct of Election) Rules, 2005, and submitted that the election petition could be dismissed during trial only on the grounds mentioned in the said rule, otherwise, the decision was to be given in accordance with Rule 71 of the said Rules. But when confronted with the contents of Rule 69 which is to the effect that the Tribunal shall have all the powers of Civil Court trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908), and shall be deemed to be a Civil Court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898), and that a Civil Court may decide a case at any stage of the proceedings, he could not be able to rebut the said legal position.
The learned counsel for the petitioners referred to the judgment reported as 2004 SCMR 1242 and submitted that the disqualification must be founded on some positive and definite fact existing and established at the time of poll so as to led to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person, and evidence had to be recorded for proving the said disqualification, and that the doctrine of throwing away the votes could not be applied without sufficient reasons and the voters' right of franchise could not be taken from them. In that case, the person disqualified had been dismissed from service and there were criminal cases against him for which recording of evidence was considered necessary, while in the present case, Petitioner No. 1 was declared disqualified due to having a Deeni Sanad, which had been declared non-equivalent to Secondary School Certificate/Matric Certificate. The judgment of the august Supreme Court of Pakistan was known to the general public on 16.8.2005 whereas the election was held on 25.8.2005. The judgment of the august Supreme Court of Pakistan has binding force and ignorance about the same is never a good cause in the way of its applicability. This being a publicly known fact, did not require recording of any evidence.
The learned counsel for the petitioners further referred to the judgment reported as PLD 2003 SC 268, which was a case of loan defaulter. He contended that the notoriety of disqualification of the returned candidate at the time of polling must be established on record through positive evidence. No other positive evidence was required, in the circumstances of the present case, when the judgment of the august Supreme Court of Pakistan on the subject was available.
The learned counsel for the petitioners referred to the judgment reported as 2004 CLC (Lahore) 626 and contended that the question of fact in issue of disqualification was to be converted into an issue of fact by framing it and evidence was to be recorded regarding the same. He contended that in the mentioned case, the election was declared void, but none of the candidates was declared successful and fresh voting was ordered. That case was decided on the ground of default for which evidence was necessary, but recording of evidence was not necessary or needed in the case in hand.
The general public knew that Petitioner No. 1 had a Sanad which did not qualify him for contesting election, but, even then, they did cost their votes in his favour. They, therefore, themselves threw away their votes in favour of a candidate, who was not qualified to be elected, and wrongly exercised their rights of franchise. Those voters are bound by their own fault and cannot claim their rights of franchise for the second time, specially when their favourite unqualified candidate is declared disqualified. The learned Election Tribunal was to transfer the success in election to the other set of candidates, which was eligible for the same. It was proved on record that the Secondary School Certificate/Matric Certificate of Ajmal Khan was fake and bogus. He alongwith his joint candidate, due to principle of joint sail and joint sinker, had no right to be declared as successful candidate. The only remaining set of candidates was, therefore, Ahmad Jan and Shah Faisal, who could be declared successful candidates, and same was done by the learned Election Tribunal by ousting the sets of candidates, namely, Ajmal Khan and Sherullah, and also the petitioners. For the purposes of ousting Ajmal Khan and other, the petitioners are not the aggrieved persons, while the grievance of Ajmal Khan and other has not been shown before this Court.
In the circumstances discussed above, we do not find any merit in the present writ petition, which we dismiss in limine.
(Aziz Ahmad Tarar) Petition dismissed.
PLJ 2006 Peshawar 190 [Abbottabad Bench Abbottabad]
Present: Shah Jahan Khan Yousafzai, J.
Mst. MEHR NISA WIDOW--Petitioner
versus
MUHAMMAD SHAFI and 3 others--Respondents
C.R. No. 70 of 2003, decided on 13.5.2005.
(i) Burden of Proof--
----Rule of evidence--Suit for possession of property and permanent injunction--Question of law--Burden of proof lies with reference to the possession of landed property--Burden of proof was not on the defendant to substantiate her title when she already in possession of the same with the belief of ownership for more than 12 years--Possession is 9 points out of 10 and it shall be always the burden of claimant who is out of possession to establish his title and possession--Revision accepted. [P. 196] A & B
Mr. M. Younas Khan Tanoli, Advocate for Petitioner.
Mr. Abdul Latif Khan, Advocate for Respondents.
Date of hearing : 13.5.2005.
Judgment
This petition is directed against the judgment of the learned Additional District Judge dated 27.1.2003 in Civil Appeal No. 85/13 of 1999 whereby the decree passed by the Civil Judge Mansehra dated 22.2.1999 in Civil Suit No. 145/1 of 1996 was maintained and appeal of the petitioner was dismissed.
Brief history of the case is that Respondent No. 1 brought a declaratory suit against the petitioner and proforma Respondents 3 to 4 claiming to be the owner of House/Plot No. 572/C situated in Mohallah Khan Bahadur through registered sale-deed No. 399 dated 13.9.1966 and that the petitioner has got no concern with it. Two shops and upper storey on it was constructed by the predecessor of petitioner fraudulently which is in fact constructed on a part of the aforesaid purchased plot of the Plaintiff-Respondent No. 1. The plaintiff also claimed Rs. 24000/- as mesne profit for the use of the disputed portion of plot. Possession of the built up shops and upper storey was also prayed for alongwith perpetual injunction against the petitioner and proforma respondents. It was also prayed as alternative prayer that plaintiff-Respondent No. 1 be put in possession of the vacant site after demolition of the two shops and upper storey. In the averments of plaint it was contended that the disputed part of the plot was purchased by him from one Biradar to whom it was allotted through P.T.O. Adjacent to the plot Abdul Jabbar Khan, the predecessor of petitioner was owing Plot No. 571/C which was gifted by him in favour of Mutianwali Mosque and the plaintiff was made to believe that the disputed part is infact part of Plot 571/C owned by him. At the time of construction of the shops and upper storey the plaintiff raised an objection but he was made to believe fraudulently that it is part of Plot No. 571/C on which he became satisfied. On getting knowledge that by constructing shops and upper storey a part of his plot has been illegally trespassed Abdul Jabbar Khan and after his death the petitioner-defendant has utilized the shops and upper storey without any right and that he is entitled to claim mesne profit at the rate of Rs. 24,000/- or the amount fixed by Court. The shops and upper storey were constructed after misguiding the petitioner and since its construction the petitioner and his predecessor have utilized its benefits which is more than cost of construction, thus the petitioner is entitled to be inducted in possession of the disputed property alongwith its superstructure.
The suit was contested by the petitioner on facts apart from raising a number of preliminary objections. The trial Court framed issues arising from pleadings of the parties and after allowing the parties to adduce evidence and appointment of a Local Commissioner. The trial Court in the conclusion decreed suit of Respondent No. 1 which was also upheld in appeal.
I heard the learned counsel for the parties and perused the record. The plaintiff-Respondent No. 1 has purchased Plot No. 572/C from one Biradar through registered Sale-Deed No. 399 dated 13.9.1966, which was allotted to the vendor through PTO No. 183753 issued on 8.7.1961 copy Ex. PW.1/1. The disputed land beneath the two shops and an upper storey on it is claimed to be part of the aforesaid purchased plot Bearing No. 572/C. In rebuttal claim of the petitioner-defendant is that the shops have been constructed by the predecessor of the petitioner in the year 1972 on ancestral property and is not a part of Plot No. 572/C allotted to Biradar and consequently transferred to the plaintiff. The moot question for determination and conclusive resolution of dispute between the parties is as to whether the land beneath the two shops is or is not part of the purchased plot Bearing No. 572/C and if found part of the said plot could the plaintiff be granted a decree for declaration which is discretionary relief why the sops were constructed by predecessor of the petitioner in 1972 and at the time of construction the plaintiff was made to understand that the land under construction was not a part of Plot No. 572/C?
The plaintiff Respondent No. 1 in support of his plaint produced Javed Khan Settlement Clerk as PW.1 who brought the original registered PTD where at page 18 House No. 572/C was allotted to one Biradar Ex. PW.I/I photostat copy of PTD was admitted to be correct. When subjected to short cross-examination he admitted that the area mentioned in the PTD as 2880 sqft. was tampered by making an overwriting of the figures 8 and 0 and the overwriting does not contain the initial of authority concerned. In view of the clear admission of the PW.1 regarding tampering with the figures mentioned in the PTD Ex. PW.1/1 it was the burden of the plaintiff to explain the overwriting and he was supposed to establish that he has purchased an area of 2880 sqft. through registered sale-deed dated 18.5.1964. Qazi Muhammad Ayaz was produced to prove the execution of gift deed Ex. PW.2/1 dated 18.5.1964 by predecessor of the petitioner in favour of Motianwali Mosque. He also produced the registered sale-deed in favour of plaintiff Bearing No. 399/1 dated 13.9.1966 copy Ex. PW.2/2. Muhammad Tariq record clerk M.C. Manshera was produced as PW.3 who brought on record the site-plan of the two shops and flats owned by the plaintiff as Ex. PW.3/1 attested on 16.7.1984. However, he deposed that there is no site-plan of the Motianwali Mosque and the shops available in M.C. record. The plaintiff Respondent No. 1 himself appeared as PW.4 and reiterated the same facts as alleged in the plaint. He stated that when Abdul Jabbar Khan the predecessor of petitioner started construction at the disputed site then vacant, he raised an objection but he was told that he has purchased Plot No. 571/C. Since Abdul Jabbar Khan was respectable man he accepted his explanation and became quiet. Recently he got the knowledge that Plot No. 571/C was gifted by him in 1964 in favour of Mutianwali Mosque and he was no more owner adjacent to the purchased plot of the plaintiff where after the suit was filed. He admits that Plot No. 572/C was purchased by him in the year 1966 and Abdul Jabbar Khan has died in 1974. Before his death he started/construction of the shops on the disputed site in the year 1972. The house built on his purchased plot Bearing No. 572/C was reconstructed by him in the year 1984 and before starting construction an Engineer was brought on the site who also took measurement of the land for the proposed construction. He has admitted that when he purchased the house from Biradar the allottee and shifted to it, it was containing boundary wall but it was temporary because it was not cemented. He denied the suggestion that he has colluded Rehabilitation Clerk in tampering the record. He admitted that he was given possession of the two shops and a Court yard by Biradar, the vendor at the time of purchase.
The petitioner produced his special attorney Sadaq Khan as solitary defence witness who was examined as DW.1. He stated that the disputed land was owned by Abdul Jabbar Khan who gifted it to Mst. Shagufta Gul and Nisar Khan. The property owned by Biradar was a house surrounded by boundary wall and the disputed land falls outside the boundary wall of the said house and had never been a part of plot owned by Biradar. The shops and upper storey were constructed by Abdul Jabbar Khan and Sarwar Khan the father of aforesaid donees in the year 1969. At the time of construction the plaintiff asked Abdul Jabbar Khan that the intervening wall should remain as joint which was accepted. The plaintiff reconstructed his purchased property after obtaining sanction from the Municipal Corporation in the year 1984-85. His deposition in chief remained intact during lengthy cross-examination.
Local Commission was deputed for determination of the nature and extent of construction by the plaintiff and as to whether the petitioner-defendant has made any construction on Plot No. 572/C. The commission visited the site on 27.5.1997 in presence of parties and clerk of the Settlement Department alongwith record. After specifying the disputed Plot No. 572/C he made measurement keeping in view the total area of the plot as 2880 sqft. although it was stated to be an overwriting by the record keeper of Rehabilitation who appeared as PW.1 before the Court. Taking into account the aforesaid measurement in his opinion that the entire construction of the two shops and upper storey is made on the land falling as part of the aforesaid plot duly purchased by the plaintiff. Not only the land beneath the shops but half of the adjacent street towards south was also reported to be part of the said plot. The petitioner raised objections on the report of local commission on which the local commission was summoned and examined as CW.1. He exhibited his report as CW.1/1 and admitted the same to be correct and based on local enquiry on the spot. Though he denied the suggestion that he has special relations with the plaintiff or that he used to stay in shop of the plaintiff or that he has obliged the plaintiff by giving a favourable report but he has rejected the suggestion that the record of Plot No. 572/C produced before him was not tampered with although PW.1 has stated as follows:--
In this way the deposition of CW.1 is against the record and statement of the concerned official. Even then the trial Court accepted the report of local commission.
This is undisputed fact that plaintiff-Respondent No. 1 has purchase
Plot No. 572/C from Biradar the allottee to whom the allotment was made in the year 1966. This is also an established fact that the area mentioned in the allotment order copy Ex. PW.1/1 area is recorded in a column which is not meant for recording the area and the concerned official of the rehabilitation has admitted that overwriting is made in figures 8' andO'. The said official appeared as witness of the plaintiff but he was neither abandoned nor declared hostile and plaintiff is bound by his statement. It is also a fact that the plaintiff-respondent purchased the aforesaid allotted plot through registered sale-deed Ex. PW.2/2 but there is no mention of measurement in the sale-deed and only boundaries are mentioned. The recorded boundaries are, towards east general thoroughfare and Mutianwali Mosque, towards west house of Muhammad
Iqbal Khan etc, towards south and north general thoroughfare. The property sold was disclosed to be consisting of two rooms. The sale took place in 1966 and the plaintiff while appearing as PW.4 stated that there were two rooms in the house at the time of its purchase and rest of the area was vacant site. He stated living in it since its purchase in 1966. At the time of construction over the disputed land he raised an objection but he was told by Abdul Jabbar
Khan that he has purchased Plot No. 571/C and he is raising construction thereon. Being a respectable man he believed him and kept quiet. Later on he came to know that Plot No. 571/C was gifted by him in the name of Mutianwali
Mosque in the year 1966 and he was no more owner in the area and the construction made by him was in fact upon an area of Plot No. 572/C which is owned by him (the plaintiff). Abdul Jabbar Khan died in the year 1974 while the construction was started in his life time in the year 1972. He has also admitted that in the year 1984 he reconstructed his purchased house and before starting construction he brought an Engineer on the spot who made measurement and thereafter prepared the site-plan (Ex. PW.3/1). He has also admitted that at the time of purchase and shifting his abode to it there was a boundary wall of the purchased house but stated of his own that it was temporary. The suit was instituted on 24.11.1996.
In Ajab Din and others vs. Muhammad Shah and others (PLD 1986 Peshawar 30), in identical circumstances decree was refused to a plaintiff who failed to establish his possession over the suit land for the last 12 years and the plaintiff had acquiesced in the ownership of the defendant due to his possession over the suit property for decades and his possession was not questioned by the plaintiff and thus he was found not entitled to claim any share in the property possessed by the defendant.
In another identical case reported as Imami vs Ibrahim and others (AIR 1929 Oudh 292), it was held that where the defendants built on the plaintiff's land on the bona fide belief that they had a good title to the property, the large investment they made being evidence of their bona fide belief, and where the plaintiffs never objected to the infringement upon his right though they knew of the mistaken belief of the defendants and thus encouraged the defendants in their building. It was held that suit of the plaintiff could not be decreed being estopped by the doctrine of acquiescence. In the present case the plaintiff respondent though allegedly raised objection at the time of construction over the disputed land in the year 1972 but Abdul Jabbar Khan the predecessor of Defendant No. 1 explained to him that he is raising construction on his own land on which the plaintiff felt satisfied and he raised no objection till the institution of the suit in the year 1996. In the case reported as Ghulam Hussain and 3 others vs. The Custodian, AJK, Government and four others (1986 CLC 2983) the term `adverse possession' was discussed and the following conclusion was drawn:--
"To determine the nature of possession for the purpose of adverse possession, whether it was on account of a valid sale, invalid or without sale, would not matter, all that matters is the attitude of the person who is in possession of it. If he asserted his possession as an owner in denial of the right of true owner and such assertion was open and continuous and it was continued for more than twelve years in same position, it would be adverse as is provided in Section 28 of the Limitation Act."
In AIR 1940 NAG 49 Full Bench has observed as follows:--
"The question is whether the possession exceeding the prescribed period of limitation confers upon him the original tenant's right. Section 28 Limitation Act--No doubt speaks only of extension of right but as pointed out by their lordships of the Privy Council in 11 M.I.A. 345 at page 363, after the expiry of the prescribed period of limitation not only is the remedy barred but the title is extended in favour of possessor."
"It is well-settled that where the case set up is of dispossession from or discontinuance of possession of immovable property the limitation for bringing suit for possession is governed by Article 142 of the Limitation Act. In such a case the plaintiff must prove dispossession from the immovable property within 12 years preceding the date of the suit. In the present case it has been found as a fact by the Courts below that the plaintiffs were not dispossessed within 12 years prior to the institution of the suit. Therefore, the suit of plaintiff was rightly held as barred by limitation as in such a case it is not necessary for the defendants to establish by positive evidence their adverse possession. As regards mutation entry which was subsequently reversed we do not agree with the learned counsel that this document had no evidentary value. We are unable to hold that the Courts below by relying on this document had committed such an error as to vitiate the finding of fact relating to possession of the respondents recorded by them."
In the present case counsel for respondents contended with vehemence that plaintiff has relied upon documentary evidence in the shape of registered sale-deed and the allotment order but in rebuttal the petitioner-defendant has failed to substantiate her title on the land beneath the two shops and upper storey through any documentary evidence. In view of the aforementioned dictum of the august Supreme Court of Pakistan it was not the burden of defendant to substantiate her title when already in possession of the same with the belief of ownership for more than 12 years. The construction was undisputedly made in 1972 by spending huge amount and the plaintiff-respondent was satisfied on the explanation offered by predecessor of the petitioner-defendant and remained silent upto the year 1996. It is always burden of the plaintiff to establish the averments made in the plaint through cogent evidence and the plaintiff cannot get benefit of the weakness of defendant if he could not establish his case through his own evidence. It is an established principle of administration of justice that possession is 9 points out of 10 and it shall be always the burden of claimant who is out of possession to establish his title and possession during the preceding 12 years and if such burden is not discharged the possession even as trespass for more than 12 years when it is upon continuous and hostile for 12 years would be sufficient for dismissal of the claim of claimant who is out of possession.
In the wake of the aforesaid discussion I arrived at the conclusion that the two Courts below have not properly appreciated the evidence brought on record and the law applicable to the facts and circumstances of the case. Consequently I accept this revision petition, set aside the impugned judgment of Additional District Judge-II, Mansehra dated 27.1.2003 in Appeal No. 85/13 of 1999 and the decree and judgment of the learned Civil Judge-V, Mansehra dated 22.2.1999 in Civil Suit No. 145/I of 1996 and dismiss the suit of the Respondent No. 1 with no order as to costs.
(Hina Anwar) Revision accepted.
PLJ 2006 Peshawar 197 (DB)
Present: Salim Khan and Hamid Farooq Durrani, JJ.
MUSHTAQ AHMAD alias KALA & another--Petitioners
versus
ADDITIONAL DISTRICT JUDGE NO. 1, ABBOTTABAD and others--Respondents
W.P. No. 63 of 2006, heard on 26.4.2006.
N.W.F.P. Local Government (Conduct of Elections) Rules, 2005--
----R. 61--Constitution of Pakistan, 1973--Art. 199--Transposition as runners up--Condonation of delay without any sufficient reason--Tribunal declared election illegal--Legality--Petitioner had not right to be transposed by Election Tribunal by due exercise of jurisdiction and proper application of law--Petitioner were strangers before Election Tribunal and could not be provided remedy on their application--Election Tribunal had not declared other person as successful candidate and ordered holding of fresh election--Petitioner had no grievance at such stage--Petition dismissed. [P. 198] A
Qazi Muhammad Ghazanfar & Abdul Latif Afridi, Advocates for Petitioners.
DAG alongwith Mr. Sher Afghan, DEC. H. Division and Saifur Rehman, Assistant for Respondents.
Date of hearing : 26.4.2006.
Judgment
Salim Khan, J.--Mushtaq Ahmad alias Kala and Muhammad Farooq contended that Respondents Nos. 5 and 6 (Anwarul Haq and Noor-ur-Rehman) were declared as returned candidates for the Offices of Nazim and Naib Nasim, Union Council Jabori, District Mansehra, and Respondents Nos. 2 and 3 (Khurshid Anwar and Babu Altaf) challenged the said election through election petition, that petitioners submitted application for their transposition as petitioners as they were runners up but that petition was not accepted. It was further contended that the learned Election Tribunal declared the election of Respondents Nos. 5 and 6 as illegal and void and ordered fresh election instead of declaring the petitioners as duly elected candidates. Hence the writ petition.
In the light of the arguments of the learned counsel for the parties and the perusal of record, and relying on our discussion included in the judgment written in Writ Petition No. 9 of 2006, we proceed to decide the various points involved in this as follows.
The election of the returned candidates could be declared void and has been declared void. The petitioners could not challenge the election except through an election petition in the light of the relevant Rule 61 of the N.W.F.P. Local Government (Conduct of Elections) Rules, 2005 which they had not submitted within the prescribed period. Their transposition as petitioners would have amounted to condonation of delay without any sufficient reason, if their application was considered as election petition. The petitioners had no right to be transposed as petitioners in the light of the rules, and were not so transposed by the Election Tribunal by due exercise of jurisdiction and proper application of law. The petitioners were strangers before the learned Election Tribunal and could no be provided any remedy on their application. As the learned Election Tribunal has not declared other persons as successful/returned candidates and has ordered holding of fresh elections, the petitioners have no grievance at this stage.
We do not find any defect in the impugned order of the learned Election Tribunal, and do not find any merit in the present writ petition, which is hereby dismissed.
(M. Ajmal Rana) Petition dismissed.
PLJ 2006 Peshawar 198 (DB)
Present: Muhammad Qaim Jan and Ejaz Afzal Khan, JJ.
ABDULLAH JAN--Petitioner
versus
M. JAMIL SHAH--Respondent
RFA No. 54 of 1998, decided on 2.5.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 33--Constitution of Pakistan, 1973, Art. 199--Jurisdiction--Power to grant relief even to non-appealing--Defamatory statement was published in Newspapers--Suit for damages was decreed extent of Rs. 20,00,000/- instead of Rs. 6,00,00,000/-Assailed--When no convincing evidence had been adduced by appellant to prove good reputation and impact of the statement--Proved of--No such evidence had come forth, a taken damages to tune of Rs. 20,00,000/- would be sufficient to meet ends of justice--Held : In view of provisions contained in Order, XLI, Rule 33 of Civil Procedure Code (V of 1908) has power to grant relief even to non-appealing respondents, if their case is similar to that of party filing appeal--High Court reduced the amount of damages in connected appeal--Appeal filed by respondent had become infructuous and dismissed--Order accordingly. [P. 200] A & B
Mian M. Yunis Shah, Advocate for Petitioner.
Mr. M. Alam & S. Yunis Jan, Advocates for Respondent.
Date of hearing : 2.5.2006.
Judgment
Ejaz Afzal Khan, J.--A defamatory statement showing that Mian Jamil Shah, Respondent Nos. 1 herein, has grabbed a great deal of property belonging to widows and orphans was published in Daily
Khubrai' dated 27.3.1995, DailyMashriq' of the same date and in the Daily
`Khubrai' dated 29.3.1995. Since the statement was alleged to have been published at the instance of Abdullah Jan and Mian Moeenuddin, appellant and
Respondent No. 2 herein, respectively, Respondent No. 1 instituted a suit for damages to the tune of Rs. 6,00,00,000/- (Rs. Six Crores) in the Court of the learned Senior Civil Judge Nowshera. When the learned trial Court after recording evidence decreed the suit of Respondent No. 1 to the extent of Rs.
20,00,000/-, vide his judgment and decree dated 28.4.1998, the appellant filed
R.F.A. No. 54 while Respondent No. 1 filed R.F.A. No. 55 of 1998 for enhancement of the amount. As both of them arise out of the same lis, they are disposed of by this single judgment.
It was argued by the learned counsel for the appellant in RFA No. 54 of 1998 that where it has not been proved on the record as to who made the statement thus published in the newspapers, the suit of the respondent was liable to be dismissed. He next submitted that, if at all, by any means, it is assumed that this statement was made by the appellant and Respondents Nos. 2 to 4, it being based on truth cannot call for an award of any amount of damages.
As against that, the learned counsel appearing on behalf of Respondent No. 1 submitted that where one of the witnesses examined by the appellant admitted in his cross-examination that whatever was published in the newspapers was the essence of what was stated by the appellant and the people who gathered at his residence at the relevant time, it was proved that it was published at the instance of the appellant, therefore, the suit of Respondent No. 1 was rightly decreed. While controverting the argument of the learned counsel for the appellant with regard to the truth of the statement, the learned counsel submitted that where the appellant did not specifically plead it in his written statement, it cannot be considered altogether. The learned counsel to support his contention placed reliance on the case of Ajit Singh vs. Radha Kishen (AIR 1931 Lahore 246). The learned counsel, then, submitted that where the remaining defendants have not preferred any appeal against the impugned judgment, it shall be deemed to be final at least against them. In support of R.F.A. No. 55 of 1998, the learned counsel submitted that where it is proved on the record that defamatory statement was published at the instance of the
appellant and the other respondent with malice, the suit should have been decreed in the terms of prayer.
We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
The record reveals that the statement, mentioned above, was published in the newspapers recounted above. Though the appellant disputed this statement but one of his P.Ws. when examined in the Court, admitted that whatever was published in the newspapers was the essence of what was stated by the appellant and the people who gathered at his residence a the relevant time. Truth of the statement has neither been pleaded in the written statement nor proved through the evidence on the record, as such it remained unsubstantiated. The case of Ajit Singh vs. Radha Kishen (Sulpra) may be quite germane to the situation. In this view of the matter, we do not think, the impugned finding is open to any exception. However, it cannot be sustained as to the amount of damages to the tune of Rs. 20,00,000/-, when no convincing evidence has been adduced by the appellant to prove his good reputation and the impact of the statement thereon. He was required to prove that he was in fact belittled in the estimation of the people because of the said statement. When no such evidence has come forth, a token damages to the tune of Rs. 20,000/- (Rs. Twenty thousands) would be sufficient to meet the ends of justice, notwithstanding the fact that some of the defendants have not preferred appeal against the impugned judgment. This Court, in view of the provisions contained in Rule 33 Order XLI of the C.P.C. has the power to grant relief even to the non-appealing respondents, if their case is similar to that of the party filing appeal. The cases of Province of Punjab through Collector Bahawalpur, District, Bahawalpur and others vs. Col. Abdul Majeed and others (1997 SCMR 1692) and Haji Rehmdil vs. The Province of Balochistan and another (1999 SCMR 1060), may well be referred in this behalf. We, therefore, modify the impugned judgment by reducing the amount of Rs. 20,00,000/- to Rs. 20,000/- only.
With the above modification, this appeal is disposed of. As we have reduced the amount of damages in the connected appeal, the appeal filed by Respondent No. 1 has become infructuous and is, thus, dismissed.
(Rafaqat Ali Sohal) Appeal dismissed
PLJ 2006 Peshawar 201 (DB)
Present: Salim Khan and Hamid Farooq Durrani, JJ.
Mst. GUL FAREEN--Petitioner
versus
AHMAD NAWAZ and another --Respondents
W.P. No. 26 of 2005, heard on 5.5.2006.
(i) West Pakistan Family Courts Act, 1962--
----S. 14(2)--Constitution of Pakistan, 1973--Art. 199--Jurisdiction to hear appeal regarding maintenance allowance upto Rs. 1000/- Appellate Court did not have power to hear appeal in decree for maintenance allowance upto Rs. 1000/- in favour of the petitioner--Fact of--A decree of Rs. 1000/- dower amount Rs. 5000/- as delivery expenses and Rs. 1000/- per month as maintenance allowance for whole period of desertion and future maintenance till marriage was granted in favour of the wife--Amount so decreed exceeded of Rs. 1000/- when jointly considered for plaintiff against defendant--Petition dismissed. [P. 202] A
(ii) West Pakistan Family Court Act, 1962--
----S. 14(2)(c)--Inherent right of appeal--Suit for maintenance of Rs. 1000/- was decreed--Appeal partially accepted--Assailed--Beneficial legislation--Inherent right of appeal of the judgment debtor has been curtailed to extent to avoid difficulties for wife and children who were considered weaker in structure of the society--Beneficial legislation in favour of one party could not be detrimental to interest of other party except to extent that difficulty is bearable by other party--Held : Payment of maintenance allowance upto Rs. 1000/- per month was not bearable for father--Right of appeal revives to debtor when total amount of maintenance allowance granted exceeds of Rs. 1000/- per month--High Court did not find good ground for interference in judgments of Courts below under extra ordinary Constitutional jurisdiction--Petition dismissed. [P. 202] B
Mr. Fazal-e-Gul Khan, Advocate for Petitioner.
Mr. Muhammad Asim Khan, Advocate for Respondents.
Date of hearing : 5.5.2006.
Judgment
Salim Khan, J.--Mst. Gul Fareen brought Writ Petition No. 26 of 2005 against Ahmad Nawaz and Addl. District Judge-II, Haripur with the grievance that the learned Addl. District Judge, Haripur vide judgment dated 1.12.2004 accepted Appeal No. 28/F.C. of 2002 partially to the extent that the judgment and decree dated 30.10.2002 by the learned Judge Family Court, Haripur at the rate of Rs. 1000/- per month in favour of the petitioner was set aside. The petition was contested by Respondent No. 1.
We heard the learned counsel for the parties and perused the record.
The learned counsel for the respondent, at the very outset, objected to the judgment and decree of the learned appellate Court, delivered in Appeal No. 28/F.C. of 2002 instituted on 16.12.2002 and decided on 1.12.2004, on the ground that, under Section 14(2) of the West Pakistan Family Courts Act, 1962, the learned appellate Court did not have the power to hear appeal in a decree for maintenance allowance upto Rs. 1000/- in favour of the petitioner. The actual fact, however, is that a decree for Rs. 50000/- dower amount, Rs. 5000/- as delivery expenses and Rs.1000/- per month as maintenance allowance for whole period of desertion and future maintenance till marriage persists was granted in favour of the wife (plaintiff) while Rs. 500/- per month from July, 2000 till 30.10.2002 and Rs. 1000/- per month till the age of majority of Mst. Aysha Bibi (daughter of the parties) was passed in favour of the plaintiff. The amount so decreed exceeded Rs.1000/- when jointly considered for both the plaintiff against the defendant. The learned counsel for the respondent referred to PLD 2005 Lahore 324 and PLD 2005 Lahore 296 and contended that the objection was not maintainable.
The contention of the learned counsel for the respondent, in the light of the interpretation of Section 14(2)(c) is correct because it is the judgment debtor who is to pay the decretal amount and it is for him that a restriction was imposed in respect of appeal for maintenance allowance of Rs. 1000/- or less. The decree against him becomes more than Rs. 1000/- when a decree for Rs. 1000/- for the wife and decree for Rs. 500/- or, for future purposes, for Rs. 1000/- per month has been passed in favour of the daughter. The embargo imposed by Section 14(2)(c) of the Act is a beneficial legislation in favour of the wife and children, but to the extent of Rs. 1000/- or less for a month as maintenance allowance. The inherent right of appeal of the judgment debtor has been curtailed only to this extent in order to avoid difficulties for the wife and children who are considered weaker in the structure of the society. But, a beneficial legislation in favour of one party cannot be detrimental to the interest of the other party, except to the extent that the difficulty is bearable by the other party. The legislature, in their wisdom, considered that the payment of maintenance allowance upto Rs. 1000/- per month was not unbearable for the father, however lower his financial position in the society may be. But, as the legislation is made, keeping in view all the citizens, the right of appeal revives to the judgment debtor when the total sum of the maintenance of allowance granted against him exceeds Rs. 1000/- per month.
The learned counsel for the petitioner discussed the details of evidence of the parties and so did the learned counsel for the respondent. But, it could not be shown to us by the learned counsel for the petitioner that the evidence was not properly appreciated by the learned appellate Court as well as the learned original Court. We do not find any good ground for interference in the judgments of the learned two Courts under our extra-ordinary constitutional jurisdiction.
In the light of the above, the writ petition is hereby dismissed.
(Rafaqat Ali Sohal) Petition dismissed
PLJ 2006 Peshawar 203 (DB)
Present: Salim Khan and Hamid Farooq Durrani, JJ.
SHER GHAZI and 4 others--Petitioners
versus
CHIEF ELECTION COMMISSIONER, ISLAMABAD& others--Respondents
W.P. No. 256 of 2005, heard on 26.4.2006.
N.W.F.P. Local Government (Conduct of Election) Rules, 2005--
----R. 20--Constitution of Pakistan, 1973--Art. 199--Election for Muslim General Seats of Union Council--Symbols were allotted--Petitioners were declared successful candidate--District Returning Officer ordered fresh election--Assailed--Validity--Symbols were not properly allotted and printed on ballot papers, therefore election was null and void--Order of District Returning Officer was not only legal and proper but with exercise of jurisdiction--Petition dismissed. [P. 204] A
Barrister Masood Kausar, Advocate for Petitioners.
DAG alongwith Mr. Sher Afghan DEC, H. Division, Saifur Rehman, Asstt. and Mr. Tanvir Ahmad Moghal, Advocate for Respondents.
Date of hearing : 26.4.2006., Judgment
Salim Khan, J.--Sher Ghazi, Fazal Haq, Abdur Rauf and Maulvi Didar Shah petitioners contended that they contested election for the Muslim General Seats of Union Council, Dassu on 25.8.2005, that election symbols were allotted to various candidates including the Petitioners and Respondents Nos. 5 to 14, that Petitioners Nos. 1 to 4 were declared successful/returned candidates initially, that the District Returning Officer, Kohistan, on the application of four contesting candidates, vide impugned order dated 27.8.2005, ordered fresh election/polling to be held on 8.9.2005 at 8 a.m. The petitioners contended that the order dated 27.8.2005 was illegal, without lawful authority and of no legal effect. Hence this writ petition.
The learned counsel for the petitioners contended that the elections were properly held and the District Returning Officer could not declare the same null and void and could not declare re-polling/re-election.
We heard the arguments of the learned counsel for the parties and perused the record including the impugned order dated 27.8.2005 of the learned District Returning Officer, Kohistan.
The order of the learned District Returning Officer clearly mentions that symbols were allotted wrongly, and the symbol of bucket was allotted to Qalar Shah which was already allotted to Dildar in the same Union Council, and that the symbols allotted to Qalar Shah, Ehsanud Din, Abdur Rauf and Spinzar (Umbrella, Chair Mango and Motor Car) were not available on the ballot papers.
Rule 20 of the N.W.F.P. Local Government (Conduct of Elections) Rules, 2005 deals with the allotment of symbols. Such allotment is a pre-condition to a valid election. In the instant case, symbols were not properly allotted and printed on the ballot papers, therefore, the election by itself was null and void. The order of the District Returning Officer, therefore, was not only legal and proper but with the exercise of conferred jurisdiction, as he was the Incharge of elections to be conducted within the District to which he was appointed as District Returning Officer.
We, therefore, do not find any merit in the present writ petition which is hereby dismissed.
(Rafaqat Ali Sohal) Petition dismissed
PLJ 2006 Peshawar 204 (DB)
Present: Salim Khan and Hamid Farooq Durrani, JJ.
AMJAD ANWAR and another--Petitioners
versus
ELECTION TRIBUNAL, DISTRICT MANSEHRA/ADDITIONAL DISTRICT JUDGE-I, ABBOTTABAD and 7 others--Respondents
W.P. No. 64 of 2006, heard on 26.4.2006.
Constitution of Pakistan, 1973--
----Art. 199--Election for the office of Nazim and Naib Nazim--Dispute due to delimitation and creation of new union council--Nomination papers were filed late and was very short time for objection--Election tribunal declared election null and void but ordered fresh election instead of declaring return candidates--Validity of sanad--Respondent was found non-matric at the time of filing of nomination papers and not qualified to contest election--Sanad of respondent was not found equivalent to matric or SSC--Petition dismissed. [Pp. 205 & 206] A
Mr. Nisar Hussain and Mr. Abdul Latif Afridi, Advocates for Petitioners.
DAG alongwith Mr. Sher Afghan, DEC, H. Division and Mr. Saif-ur-Rehman, Asstt. for Respondents.
Date of hearing: 26.4.2006.
Judgment
Salim Khan, J.--Amjad Anwar and Muhammad Azam Shah petitioners contended that they contested election for the Offices of Nazim and Naib Nazim of Union Council Battal, District Mansehra against Sadiq Rashid and Ahmad Yar Khan (one set of joint candidates) Gohar Rehman and Gulzar Khan (second set of joint candidates) as well as Abdul Qadeer Khan and Rehman Shah (third set of joint candidates), that due to dispute regarding delimitation and creation of new Union Council Ahl, the nomination papers were filed late and there was very short time for objections, and petitioners initially were candidates for election for Union Council Ahl while Respondents Nos. 3 and 4 were candidates for Union Council, Battal, which did not provide chance to the petitioners to raise objections on the candidature of Respondents Nos. 3 and 4. The petitioners further contended that Respondents Nos. 3 and 4 were declared as returned candidates while the petitioners secured second highest number of votes, that the learned Election Tribunal declared the election of Respondents Nos. 3 and 4 as null and void but ordered fresh elections for the seats of Nazim and Naib Nazim of Union Council Battal, instead of declaring the petitioners as successful/returned candidates. Hence the writ petition.
In the light of the arguments of the learned counsel for the parties and the perusal of record, and relying on our discussion included in the judgment written in Writ Petition No. 9 of 2006, we proceed to decide the various points involved in this as follows.
The man objection before the Election Tribunal was that Sadiq Rashid (Respondent No. 3 before us) was found non-matric at the time of the filing of nomination papers and not qualified to contest the election of Nazim. The Sanad of Respondent No. 3 was not found equivalent to matric or SSC. Election Petition No. 44/E.P. of 2005 was instituted by Amjad Anwar Khan which was accepted to the extent of declaring the election of Respondents Nos. 3 and 4 as illegal and void but due to applicability of the judgments reported as PLD 2004 SC 505, 2004 CLC 842, PLD 2003 SC 268, PLD 2004 SC 570 and 2004 SCMR as well as PLJ 2005 SC 226 and in the light of the fact that the petitioners had obtained 1116 votes while Respondents 3 and 4 had obtained 2730, the learned Election Tribunal declared fresh elections. The reasons advanced by the learned Election Tribunal for declaring fresh elections are solid and require no interference.
We, therefore, do not find any defect in the impugned order of the learned Election Tribunal and do not find any merit in the present writ petition which is hereby dismissed.
(Rafaqat Ali Sohal) Petition dismissed
PLJ 2006 Peshawar 206 (DB)
Present: Shahzad Akbar Khan and Ijaz-ul-Hassan, JJ.
Mst. FARKHANDA MUMTAZ--Petitioner
versus
MUHAMMAD SHARIF and 2 others--Respondents
W.P. No. 1508 of 2004, decided on 28.11.2005.
Limitation Act, 1908 (IX of 1908)--
----Art. 120--Constitution of Pakistan, 1973, Art. 199--Suit for past maintenance by wife and restitution of conjugal rights by husband--Family Judge dismissed suit for maintenance and decreed suit for restitution of conjugal rights--First Appellate Court reversed findings and granted maintenance allowance from institution of suit--Appeal of respondent was dismissed--Challenged through Constitutional petitions--Validity--Petitioner proved that her husband had failed to pay her maintenance allowance--When respondent is residing in Dubai it becomes immaterial whether she was expelled by respondent or had left his house at her own volition--No logic in her stay in the house of husband when husband himself was out of country--If she had taken shelter with her real brothers at cannot be considered that she had left the house of respondent in violation of her conjugal duties--Petitioner did not violate any material norm nor she refuse to perform her conjugal obligations--Respondent is legally bound to maintain his wife even if he was abroad--Order accordingly. [Pp. 208 & 209] A, B, C, E & F
PLD 1972 SC 302 and PLD 2005 Peshawar 194.
West Pakistan Family Courts Act, 1964--
----Limitation Act, (IX of 1908), Art. 120--Constitution of Pakistan, 1973, Art. 199--Past maintenance allowance of wife--Extent--Held: Suit for the past maintenance allowance is governed by Art. 120 of the Limitation Act, prescribing a period of six years from the date of accrual of cause of action. [P. 209] D
Mr. Taj Muhammad Khan, Advocate for Petitioner.
Mr. Farman Ullah Khattak, Advocate for Respondents.
Date of hearing: 28.11.2005.
Judgment
Shahzad Akbar Khan, J.--Our this single judgment is meant to govern the disposal of W.P. No. 1508/2004 and W.P. No. 354/2005 as both these petitions have arisen out of the same judgment and decree.
Short facts relevant to the disposal of these writ petitions are that petitioner Mst. Farkhanda Mumtaz wife of Muhammad Sharif respondent filed Suit No. 159/I of 2002 for recovery of dowry articles, Suit No. 14/FC for maintenance whereas respondent Muhammad Sharif filed a suit for restitution of conjugal rights. All the 3 cases were consolidated and were disposed of through a common judgment dated 28.1.2004 passed by the Senior Civil Judge, Karak. In plaint of Suit No. 13/FC petitioner claimed that she was wedded to respondent in the year 1968 and that she was performing her marital obligations towards her husband that respondent left for Dubai and since long he was working there. She was however ignored totally by the husband and was not paid any maintenance allowance since March 1996. The suits of the petitioner were resisted by the respondent and the rival pleadings generated 7 issues apart from the relief. The parties adduced evidence in support of their respective contentions. On evaluating the evidence the learned trial Court dismissed the suit of the petitioner whereas suit of the husband regarding restitution of conjugal rights was decreed. Dissatisfied with the judgment and decree of trial Court the petitioner filed an appeal which was heard and decided by the learned District Judge, Karak on 9.7.2004. He accepted the appeal of the petitioner, dismissed the suit of the respondent for restitution of conjugal rights and passed a decree for the recovery of Rs. 3000/- per month from January 2002 till passing of the decree and for future. Muhammad Sharif respondent being aggrieved of the judgment and decree of the appellate Court filed a W.P. No. 354/2005. The petitioner Mst. Farkhanda Mumtaz was also not satisfied with the judgment and decree of the learned Appellate Court and ventilated her grievances with regard to the monthly amount and period of maintenance.
The learned counsel appearing on behalf of the petitioner has vehemently argued that as per law the petitioner was entitled to receive maintenance allowance for a period of 6 years preceding the institution of the suit. He urged that enormous evidence of high order and quality was produced by the petitioner/wife to establish her claim for the recovery of maintenance allowance for the period commencing from 1996 onward as the respondent/husband had deliberately ignored her for her legal rights to receive the maintenance. The learned counsel has placed reliance on Muhammad Nawaz vs. Mst. Khurshid Begum (PLD 1972 SC 302) and Mst. Anar Mamana vs. Misal Gul and two others (PLD 2005 Peshawar 194). He has also argued that the learned District Judge has not advanced any reason for making a reduction in the maintenance period. He further submitted that the respondent-husband has not been able to produce any evidence to controvert the claim of the petitioner.
On the other hand the learned counsel appearing for Muhammad Sharif respondent has raised the argument that the petitioner was not expelled by her husband rather she had left his house at her own free will, therefore, she is not entitled to any alimony. He contended that the decree passed by the learned District Judge for the payment of Rs. 3000/- per month in favour of the petitioner/wife is without lawful authority and be struck down accordingly.
We have heard and considered the rival arguments of the learned counsel for the parties. This is an admitted position that Muhammad Sharif respondent is residing in Dubai in connection with his business and has also contracted a second marriage. The second wife is residing with him in Dubai. Through her own statement and statement of P.Ws the petitioner has abundantly proved that her husband i.e. the respondent has failed to pay her any maintenance. In the circumstances when the respondent is residing in Dubai it become immaterial whether she was expelled by the respondent or had left his house at her own volition. There was no logic in her stay in the house of the husband when the husband himself is out of country. If she had taken shelter with her real brothers it cannot be considered that the petitioner had left the house of respondent in violation of her conjugal duties. No doubt the wife is under legal obligation to perform her marital duties towards the husband sincerely and must yield to the conjugal demands of the husband but in the instant case the situation is different. The petitioner has neither violated any marital norm nor she has refused to perform her conjugal obligations. The respondent is legally bound to maintain his wife even if he is abroad. Thus the arguments that petitioner had left the house of the respondent at her own will cannot operate to deprive the wife of her legal right of maintenance. It has also been admitted by Respondent Muhammad Sharif that he has the capacity to make payment of Rs. 5000/- per month to the wife provided it is justified. We have examined the judgment of the learned District Judge but do not see any reason as to why the period of maintenance allowance was reduced. The law is now settled that suit for the past maintenance is governed by Article 120 of Limitation Act, 1908 prescribing a period of 6 years from the date of accrual of cause of action.
In view of the foregoing circumstances we allow W.P. No. 1508/2004 and decree the suit of the petitioner for her maintenance at the rate of Rs. 3000/- per month for a period of 6 years preceding the institution of the suit and onward.
In view of the acceptance of this writ petition the rival W.P. No. 354/2005 stands dismissed.
(M. Ajmal Rana) Order accordingly
PLJ 2006 Peshawar 209
Present: Hamid Farooq Durrani, J.
KHAIR ALI and 254 others--Petitioners
versus
DEPUTY SETTLEMENT COMMISSIONER and 5 others--Respondents
W.P. No. 247 of 2004, decided on 31.5.2006.
Land Settlement Act, 1958--
----Ss. 10 & 11--Constitution of Pakistan, 1973, Art. 199--Settlement matter--Refugee from India alloted land through R.L-II No. 1--Alienation of land in favour of petitioners by said allottee after confirmation of allotment--Petitioners were given possession and they raised constriction over it--Application filed before Deputy Settlement commissioner, informing that Respondent was alloted land in excess of 3000 units to his claim--Deputy Settlement Commissioner on enquiry cancelled land--Assailed--Validity--Deputy Settlement Commissioner revealed that during proceedings revenue record was summoned more than once but the petitioners who were recorded as transferees of disputed land, were not cured to be summoned--Proceedings were ex-parte as far as allottee was concerned and were also at the back of the petitioners/transferees--Non-availability of original applications u/S. 10/11 of Land Settlement Act, 1958, purportedly filed by Respondent before the Settlement Authority and in absence of reason for non-availability, casts doubt regarding maintainability of the application--Endorsement on the application, though not fully readable and shown to have been made on specific date, also adds to the doubt as to whether application was filed before crucial date--Respondent failed to provide an opportunity of hearing to petitioners, case remanded--Held: Order was passed in an unjust manner. [Pp. 212 & 213] A, B, C & D
2003 SCMR 629, 2004 SCMR 1232, 1982 SCMR 638, 2005 MLD 80 and PLD 2004 SC 271 ref.
Mir Afzal Malik, Advocate for Petitioners.
D.A.G. for Respondents Nos. 1 to 4.
Abdul Shakoor Khan, Advocate for Respondent No. 5.
Respondent No. 6: Ex-parte.
Date of hearing: 29.5.2006.
Judgment
The petitioners 225, in number, have assailed the order of Deputy Settlement Commissioner, Abbottabad passed on 13.10.2003 on the grounds, inter-alia, that the same was mala fide and without jurisdiction, therefore, was without lawful authority and of no legal effect upon the rights of the petitioners. Through the order impugned the learned Deputy Settlement Commissioner, Abbottabad had accepted the application u/S. 10/11 of Land Settlement Act, 1958 filed by Respondent No. 5.
The facts relevant for the purposes of matter in hand are that one Dalu s/o Nabu, a refugee from India and resident of Warbartan Nankana, District Sheikhupura at the relevant time, was allotted land, inter-alia, in village Chhehjihian, Tehsil and District Haripur in the year 1972. The said allotment was made through RL-II No. 1 confirmed on 22.3.1972. The allottee further alienated the land for valuable consideration in favour of the petitioners through different mutations attested during two years subsequent to the confirmation of allotment. The possession of the land was also transferred in favour of the petitioners. Upon the transfer of ownership in their favour and the petitioners had raised construction over the said land. Purportedly, one Muhammad Mohsan s/o Muhammad Akram r/o Rawalpindi, through his general attorney, applied to the Revenue Officer/Deputy Settlement Commissioner, Hazara Division at Abbottabd, on 22.5.1974, informing the authority that Respondent No. 5 was allotted land in excess of 3000 units to his claim. It was further stated that the applicant had a claim pertaining to District Hazara and he had most of units un-allotted at the relevant time. It was prayed through the application that upon cancellation of the allotment to the extent of excess units made in favour of Respondent No. 6 the land falling therein be alloted in the name of the applicant.
The learned Deputy Settlement Commissioner proceeded with the case and on completion of enquiry cancelled the alleged excess land of 3660.70 units measuring 1294 Kanals 19 Marlas originally allotted to Respondent No. 6. The said excess land, inter-alia, comprised of an area of 595 Kanals 18 Marlas in village Chhehijihan, Tehsil and District Haripur.
Learned counsel for the petitioners argued that after the promulgation of Evacuee Property & Displaced Persons Laws (Repeal) Act, 1975, which came into effect on 1.7.1974, the Deputy Settlement Commissioner/Respondent No. 1 was not seized of the jurisdiction to entertain the application of Respondent No. 5 and consequently could not pass any order thereon. The Respondent No. 1 was obliged, under the law, only to decide the pending cases after coming into force the said repeal Act. He further stated that the application filed by Respondent No. 5 was itself of dubious character as all along the proceedings the applicant Respondent No. 5 never appeared personally before the authority. He further argued that as the petitioners were lawful transferees of the property in dispute against valuable consideration, they had vested right to be heard before passing any order in detriment to their interest. He further alleged that Respondent No. 1, while undertaking the exercise culminating in passing of the impugned order dated 13.10.2003, did not attend to the entire facts as available on the record and had passed an arbitrary order, albeit, exparte against Respondent No. 6. The said order, in turn, had devastingly affected the valuable rights and interests of the petitioners. He prayed that in the light of the facts available on record as well as the law on the subject the impugned order was liable to be set-aside.
Learned counsel appearing for Respondent No. 5 controverted the submissions made on behalf of the petitioners and stated that during the proceedings before the Deputy Settlement Commissioner a publication of notice to Respondent No. 6/allottee was made in the newspaper on 7.2.2000. The said respondent in spite of publication did not appear to join the proceedings. He asserted that it was the original allottee who was to contest his case and the petitioners claiming to be the transferees from the original allottee, had no concern with the proceedings before the Deputy Settlement Commissioner. Similarly, the petitioners had no basis to file the petition before this Court. He also iterated that the protection under the Transfer of Property Act was not available to the petitioners as they were transferees of evacuee-property. The learned counsel further attempted to argue that the case of the petitioners required enquiry and recording of evidence, therefore, the matter was not to be decided through a petition in Constitutional jurisdiction. He submitted that the petitioners had failed to challenge the impugned order before the hierarchy provided for the purposes of appeal and revision. They were, therefore, estopped to bring the petition in hand.
The original record of the proceedings before Respondent No. 1 was summoned which, inter alia, contains a photostat copy of application by Respondent No. 5 praying for cancellation of an excess area allotted to Respondent No. 6 and allotment of the same in favour of the Applicant/Respondent No. 5. Pertinently this application does not bear any date of filing though an endorsement dated 22.5.1974 by D.C. ......., which is barely legible, appears thereon. The corresponding order sheet bearing the first order dated 10.6.1974, issued by Additional Settlement Commissioner Land Hazara alongwith orders for issuance of notice to the parties and subsequent orders dated 19.6.1974, 26.6.1974 and 10.7.1974, is also a photo copy and not the original. It is to be noted that on 10.7.1974 none of the parties appeared and the matter was consigned in the light of an order issued by the Board of Revenue. There is another photo copy of an application dated 16.4.1996, by Respondent No. 5, praying for initiating proceedings upon his above noted application. Upon this application the first order was passed by the Revenue EAC Abbottabd, on 11.11.1999, initiating proceeding on the former application. The order sheets show that the proceedings went on while on 21.2.2000 the Respondent No. 6 was proceeded against ex-parte. On 16.3.2001, as the applicant was also not present, he was summoned for the next date. Similarly, after appearing on 12.4.2001 the applicant was again absent on 17.5.2001 and 6.6.2001. On the said dates no action adverse to the applicant/Respondent No. 5 was taken. It also transpires from the record that on 29.8.2001 none was present, the presiding officer was on leave and 17.9.2001 was fixed as next date through reader's note. On 22.10.2001 the enquiry file from the Deputy District Officer Judicial was received and an order, for further proceedings on 23.10.2001, was passed. It is pertinent to note that on 22.10.2001 no notice for appearance was issued to Respondent No. 6. The proceedings went on and on 8.4.2002, as none was present, the notice to the parties was ordered to be issued for 20.4.2002. The record, however, is silent regarding issuance of any notice in respect of Respondent No. 6. The record of proceedings before the Deputy Settlement Commissioner also reveals that during the proceedings the relevant revenue record was summoned more than once but the petitioners whose particulars were duly recorded as transferees of disputed land in the said record, were not cared to be summoned. The proceedings thus taken were ex-parte as far as Respondent No. 6/allottee was concerned and were also at the back of the petitioners/transferees.
The non-availability of original applications u/Ss. 10/11 of the Act ibid, purportedly filed by Respondent No. 5 before the Settlement Authority and the absence of reason for the said non-availability, casts doubt regarding maintainability of application. The crucial date, as provided by the Act ibid, for closing doors on the Settlement Authorities to decide fresh matters, was 1.7.1974. The endorsement on the application, though not fully readable and shown to have been made on 22.5.1974, also adds to the doubt as to whether the application was filed before the crucial date? The corresponding order sheet, which is not available in original, also does not complement the application by Respondent No. 5. In the circumstances it is yet to be determined in the light of Section 2(2) of the Act ibid that the case of Applicant/Respondent No. 5 was pending or was otherwise on the crucial date. The cases not pending on the crucial date before any forum in the Settlement hierarchy could not be competently reopened by the notified officer. Reliance is placed on a judgment reported as 2003 SCMR 629.
Dealing with the objection raised on behalf of the respondent regarding the competency of petitioners to file the petition in hand, it would not be unsafe to hold that as the allotment in favour of Respondent No. 6 was confirmed and the petitioners were subsequent transferees against valuable consideration from the original allottee, they were entitled to notice before cancellation of the allotment. The revenue record before the DSC/Respondent No. 1 was fully depictive of petitioners' title and interest in the disputed property. Reliance in this regard is placed on judgments reported as 2004 SCMR 1232, 1982 SCMR 638 and 2005 MLD 80. As regards the maintainability of petition in hands, suffice to state that the functionaries, while deciding the rights of individuals before them, are obliged to keep in view the principles of natural justice. In the present case the Respondent No. 1 has failed to provide an opportunity of hearing to the petitioners and others concerned, therefore, it is held that the order impugned was passed in an unjust manner. In the above circumstances, this Court could entertain the cause of the petitioners through Constitutional petition. Judgment reported as PLD 2004 SC 271 is relied upon in the said context.
In the light of what has been discussed above and the available record, the petitioner in hand is accepted. The impugned order of DSC/Respondent No. 1 dated 13.10.2003 is set aside and the proceedings ensuing therefrom are also set at naught. The matter is, however, remitted to Respondent No. 1 for decision afresh after providing an opportunity of hearing to the petitioners and also to the other persons concerned.
(Muhammad Ajmal Rana) Writ accepted case remanded.
PLJ 2006 Peshawar 213 (DB)
Present: Ijaz-ul-Hassan and Salim Khan, JJ.
KHURRAM WOOD FACTORY (PRIVATE) LIMITED--Appellant
versus
COMMISSIONER OF INCOME TAX--Respondent
S.A.O. No. 2 of 1997, decided on 16.2.2006.
Income Tax Ordinance, 1979 (XXXI of 1979)--
----Ss. 25(c), 135 & 136--Appellant company filed return of income tax for the assessment specified year and declared loss which was rejected and income was assessed and an addition of Rs. 3,10,904/--Appeal dismissed by Appellate Tribunal--Assailed--Amount of trading liability or a portion thereof was not to be declared as income from business for period when assessee had not conducted business--Contention of--Validity--Precedent for declaring trading liability or portion thereof as income was that such liability had not been paid within first three years, irrespective of fact whether the business was or not conducted--Law was not for purposes of allowing assessee to first make gain from business or profession and, then, pay liability, rather, it was a concession for assessee to pay liability within three years--There was nothing on record that either circumstances of case were not kept or discretion was not exercised fairly, when, on failure of appellant to pay trading liability or portion thereof within first three years, amount of that liability was declared as income of appellant--First three years, irrespective of conduct of business or otherwise of assessee during that period, is a concession for assessee while last five years are left to discretion of concerned authority for declaring liability as income of assessee--Finding no merit the appeal dismissed in circumstances. [Pp. 217 & 218] B, C & D
Income Tax Ordinance, 1979 (XXXI of 1979)--
----S. 135--Constitution of Pakistan, 1973, Art. 199--Assessment of appellant was made for income tax--Appeal dismissed by Appellate Tribunal--Assailed--Question of law were not framed and appeal was bad in its present form--Objection of--Held: Appeal was filed long before promulgation of the Finance Act, 2000, an appeal, and not a reference, was to be filed to High Court--Further held: Question of law arising out of an order under Section 135 of Income Tax Ordinance, 1979 was to be raised in appeal. [Pp. 215 & 216] A
Mr. Abdur Rauf Rohaila, Advocate for Appellant.
Mr. Eid Muhammad Khattak, Advocate for Respondent.
Date of hearing: 26.1.2006.
Judgment
Salim Khan, J.--Kurram Wood Factory (Private) Limited, incorporated under the Companies Ordinance, 1984, alleged that it had filed return for the assessment year 1989-90, but could not conduct any business during the period of assessment years, 1990-91 and 1991-92, that the appellant filed return of income-tax for the assessment year 1992-93 and declared the loss of Rs. 39,480/-, but the same was rejected and income of Rs. 3,57,791/- was assessed and an addition of Rs. 3,10,904/- was also made under clause (c) of Section 25 of the Income Tax Ordinance, 1979; that the request of the appellant for deletion of the above-mentioned amount was not accepted and the matter was taken to Income Tax Appellate Tribunal, Peshawar, where the appeal of the present appellant was dismissed vide judgment and order dated 31.10.1997. The appellant further contended that the order was communicated to the appellant on 13.11.1997. Hence, the appeal in hand was filed on 11.12.1997. We heard Mr. Abdur Rauf Rohaila, Advocate, for the appellant as well as Mr. Eid Muhammad Khattak, Advocate, for the respondent, and perused the record.
"136. Appeal to the High Court.--(1) An appeal shall lie to High Court in respect of any question of law arising out of an order under Section 135.
(2) The appeal under this section shall be filed within sixty days of the date upon which an assessee or the Commissioner is served with notice of an order under Section 135.
(3) Where an appeal under sub-section (1) is filed by the assessee, it shall be accompanied by a fee of one hundred rupees.
(4) An appeal filed under this section shall be heard by a Bench of not less than two Judges of the High Court.
(5) The High Court upon the hearing of an appeal under this section shall decide the question of law raised therein and shall deliver its judgment thereon containing the grounds on which such decision is founded and shall send a copy of such judgment under the seal of the Court and the signature of the Registrar to the Appellate Tribunal, which shall pass such orders as are necessary to dispose of the case conformably to such judgment.
(6) Subject to sub-section (7), notwithstanding that an appeal has been filed under this section, tax shall, unless recovery thereof has been stayed by the High Court, be payable in accordance with the assessment made in the case as modified by the order of the Appellate Additional Commissioner or, as the case may be, the Appellate Tribunal.
(7) Where recovery of tax has been stayed by the High Court by an order, such order shall cease to have effect on the expiration of a period of six months following the day on which it is made, unless the appeal is decided, or such order is withdrawn, by the High Court earlier.
(8) The costs of the appeal shall be in the discretion of the Court."
As the present appeal was filed on 11.12.1997, long before the promulgation of the Finance Ordinance, 2000, an appeal, and not a reference, was to be filed to the High Court. The question of law arising out of an order under Section 135 of the Income Tax Ordinance, 1979, was to be raised in the appeal. The assessee was also given a right of such appeal.
The objection of the learned counsel for the respondents regarding non-framing of the question of law, therefore, does not hold ground because the question regarding clause (c) of Section 25 of the Income Tax Ordinance, 1979, has been taken up in the appeal itself.
The learned counsel for the appellant contended that intention of the legislature was to be seen while interpreting the provisions of Section 25 of the Income Tax Ordinance, 1979, and that intention was to be so interpreted that the assessee is not prejudiced by such an interpretation. He further clarified his point of view by arguing that the amount of trading liability or a portion thereof was not to be declared as income from business for the period when the assessee had not conducted business. He was of the view that the first three years are to be counted only as the years in which the business had been conducted while the years in which the business had not been conducted are to be excluded from counting for the said period of three years. He was further of the view that during the remaining five years, the trading liability or portion thereof could only be considered as income after such liability had not been paid during three years in which the business was practically conducted, after the exclusion of non-business period. The learned counsel for the respondents opposed such contention of the learned counsel for the appellant.
In order to properly appreciate the relevant legal position, clause (c) of Section 25 of the Income Tax Ordinance, 1979, is reproduced hereunder:
"25. Amounts subsequently recovered in respect of deductions, etc: Notwithstanding anything contained in this Ordinance, where an allowance or deduction has been made under Section 23 for any year in respect of any loss, bad debt, interest credited to suspense account, expenditure or trading liability incurred by the assessee, and subsequently:--
(a)
(aa)
(i)
(ii)
(ab)
(b)
(c) such trading liability or a portion thereof is found not to have been paid within three years of the expiration of the income year in which it was allowed, such liability or portion thereof, as the case may be, shall be deemed to be income from business or profession of the year in which such finding is made or any other year (not being a year commencing after the expiration of five years from the end of the said three years) as the Deputy Commissioner may think fit.
(d) ;
and the business or profession in respect of which such allowance or deduction was made shall, for the purposes of Section 22, be deemed to be carried on by the assessee in that year:
Provided that where a trading liability referred to in clause (c) is paid in a subsequent year, the amount so paid shall be deducted in computing the income in respect of that year."
The effect of clause (c) of Section 25 of the Income Tax Ordinance, 1979, mentioned above, was taken into consideration by the learned Income Tax Appellate Tribunal, Peshawar, in the light of the grounds of appeal. The said provision does not provide for the conduct or otherwise of business during the first three years. The only condition precedent for declaring the trading liability or portion thereof as income is that such liability has not been paid within the first three years, irrespective of the fact whether the business was or was not conducted during that period. The business or profession in respect of which allowance or deduction was made, is to be deemed to had been carried on by the assessee in that year. The law was not for the purposes of allowing the assessee to first make gain from business or profession and, then, pay the liability, rather, it was a concession for the assessee to pay the liability within three years. On the other hand, a concession was given to the concerned authority to declare it as income of any year after the passage of first three years. Such order could be made during any of the five years, keeping the circumstances of each case in view, and exercising the discretion fairly.
There is nothing on record to show that either the circumstances of the case were not kept in view, or the discretion was not exercised fairly, when, on failure of the appellant to pay the trading liability or portion thereof within first three years, the amount of that liability was declared as income of the appellant. We have come to the conclusion that the first three years, irrespective of the conduct of business or otherwise of assessee during that period, is a concession for assessee while the last five years are left to the discretion of the concerned authority for declaring the liability as income of assessee.
In these circumstances, we do not find any merit in the present appeal, which is hereby dismissed.
(M. Ajmal Rana) Appeal dismissed.
PLJ 2006 Peshawar 218
Present: Salim Khan, J.
Salim Khan --Appellant
versus
GUL HAMEED and another--Respondents
R.F.A. No. 18 of 2005, decided on 9.6.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 96--Stamp Act, (II of 1899), S. 35--Qanoon-e-Shahadat Order (10 of 1984), Arts. 17 & 79--Respondent filed suit for recovery on basis of pronote--Decreed by trial Court--Challenged to--Validity--Scribing of documents has been proved to which defendant/appellant was a party--It has never been case of respondent that no consideration was paid to him and documents in-question were obtained from him without any consideration--In fact, he had refuted genuineness of these documents--Appellate Court had properly appreciated evidence and had correctly come to conclusion, arrived at by him through impugned order--No interference was required with same in circumstances of the case--Interest/profit would be paid by appellant to plaintiffs/respondents on specific amount and payment at rate of 6% per annum alongwith cost of litigation--Appeal dismissed. [Pp. 220 & 221] C, E, F & G
2000 CLC 759; PLD 1995 Lah. 395; 2005 YLR 2614 and 2002 YLR 1468 rel. PLD 1978 SC 269; PLD 2003 Lah. 173 rel.
Duty of Court--
----It is duty of Courts to recover taxies and duties of state/Government, whenever a litigation is brought before such Court for purposes of resolution/decision and count is of opinion that taxes or duties had to be paid to date exchequer but have not been paid. [P. 220] A
Negotiable Instrument Act, 1881 (XXVI of 1881)--
----S. 79--When no rate of interest was specified in document, it was to paid @ 6%--Contention of--Contention acceded to and interest granted at the rate of 6% per annum. [P. 221] D & F
Qanoon-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 17 & 79--Suit for recovery on basis of pronote--Only one marginal witness was produced--Validity--Held: Scribe and a marginal witness of a deed, when they appear as witnesses, made up requirement of Ss. 17 and 79 of Ordinance. [P. 220] B
Malik Mehmood Akhtar, Advocate for Appellant.
Mr. Sultan Ahmed Jamshaid, Advocate for Respondent.
Date of hearing: 15.5.2006.
Judgment
Gul Hameed and Amjad Khan jointly instituted suit against Zulfiqar Ali Jadoon for recovery of Rs. 65000/- allegedly paid to the defendant by Gul Hameed Plaintiff No. 1 on 20.7.2002, and for recovery of Rs. 45000/- allegedly paid by Amjad Khan Plaintiff No. 2 to the defendant. It was alleged by them that the pro-note and the agreement deed were scribed by the defendant and it was promised by the defendant that the amount in question would be paid upto 20.10.2002 which he had not paid. Hence, the suit.
The defendant contested the suit, statement of Zahoor Ahmad Tanoli Advocate, Notary Public, regarding the pro-notes Ex.P.W. 1/1 and Ex.P.W. 1/2 was recorded, who produced his register also and the extract of the same was produced Ex.P.W. 1/3. The Notary Public found his signatures on the documents, including the agreement deed Ex.P.W. 1/4, as correct. He was cross-examined in length. Aqeel Shahzad, Stamp Vendor, was examined as P.W. 2. Asif Khan appeared as P.W. 3, Gul Haneef was examined as P.W. 4, the statement of Amjad Rehman was recorded as P.W. 5 and then the evidence of the plaintiff was closed. The defendant appeared as D.W. 1 and closed his evidence. Ultimately, the learned Addl. District Judge, Abbottabad granted a decree, as prayed for, in favour of the plaintiffs against the defendant with costs. It is worth mentioning at this stage that the prayer of the plaintiffs for the recovery of the mentioned amount also contained request for profit till the payment of the amount in question alongwith the costs of litigation.
The learned counsel for the appellant referred to Section 35 of the Stamp Act and contended that the documents were not admissible in evidence because these were not properly stamped. He also contended that no decree could be passed on the basis of insufficiently stamped documents. He also argued that it was not proved on record that any amount was paid by the Plaintiffs Nos. 1 and 2 to the defendant and documents without any consideration did not entitle the plaintiffs to claim anything from the defendant. He relied on 2000 CLC 759, PLD 1995 Lahore 395 and 2005 YLR 2614. He further contended that there was no stipulation in the alleged documents regarding interest and, therefore, profit or interest could not be granted on the basis of the said documents. He relied on 1987 K.L.R. (Civil Cases) 463 in support of this contention.
The learned counsel for the respondents, however, referred to PLD 1978 S.C. 279 and PLD 2003 Lahore 173 and contended that the payment of stamp duty was not a question between the parties, rather it was in between the State/Government and the party who was to use deficiently stamped document. He contended that the Court could order the respondents to make up the deficiency at any time and the respondents were ready to do the same. He further contended that the plaintiffs had sufficiently proved the payment of amounts to the defendant and the defendant was unable to show at any time that the documents in question were taken from him without any consideration.
The learned counsel for the appellant referred to Section 17 of the Qanoon-e-Shahadat, 1984 as well as to Section 79 thereof and contended that the documents were not properly proved as only one witness, namely, Asif Hussain was produced while the other witness, namely, Abdul Malik Khan was not so produced to support the documents inspite of the fact that he was available at Abbottabad. The learned counsel for the respondents contended that Abdul Malik Khan was not willing to record his statement in favour of any of the parties as he was the near relative of the defendant/appellant and, at the time of scribing the document, Abdul Malik Khan had appeared on behalf of the defendant while Asif Khan had appeared on behalf of the plaintiffs, and thus two witnesses were provided to the document. He further contended that the scribe of the document was produced as witness who recorded his statement in support of the scribing of the documents at the instance and in the presence of the defendant. He relied on 2002 YLR 1468 in support of his contention to the effect that the scribe was to be considered as the second witness for the purposes of Sections 17 and 79 of the Qanoon-e-Shahadat, 1984.
I evaluated the arguments of the learned counsel for the parties in the light of record. It is not a dispute between the parties whether the documents are sufficiently or deficiently stamped. It is the duty of the Courts to recover the taxes and duties of the State/Government, whenever a litigation is brought before such Courts for the purposes of resolution/decision and the Court is of the opinion that the taxes or duties had to be paid to the State Exchequer but have not been paid. I, therefore, order the plaintiffs/respondents to make up the deficiency of the stamp duty within the next one month, which, if not paid, will be recoverable from them as arrears of land revenue.
The scribe and a marginal witness of a deed, when they appeared as witnesses, made up the requirement of Sections 17 and 79 of the Qanoon-e-Shahadat, as has been done in this case. The scribing of the documents has been proved to which the defendant/appellant was a party. It has never been the case of the defendant that no consideration was paid to him and the documents in question were obtained from him without any consideration. In fact, he had refuted the genuineness of these documents.
The learned counsel for the plaintiffs/respondents referred to Section 79 of the Negotiable Instrument Act, 1881 and contended that 6% interest was to be paid to the plaintiffs, if no other rate was specified in the documents.
The learned Addl: District Judge has properly appreciated the evidence and has correctly come to the conclusion, arrived at by him through the impugned judgment and decree. No interference is required with the same in the circumstances of this case. I, therefore, maintain the impugned judgment and decree with further clarification that interest/profit shall be paid by the present appellant to the plaintiffs/respondents on the amounts of Rs. 65000/- and Rs. 45000/- from the date of their delivery to the defendant to the date of repayment at the rate of 6% per annum along with the cost of litigation throughout.
Finding no merit in the present appeal, it is dismissed in the light of the above.
(M. Ajmal Rana) Appeal dismissed
PLJ 2006 Peshawar 221 (DB)
Present: Shah Jahan Khan & Fazlur Rahman Khan, JJ.
ROOH-UL-AMIN, JUNIOR CLERK, ESTABLISHMENT SECTION UNIVERSITY OF PESHAWAR--Petitioner
versus
UNIVERSITY OF PESHAWAR and 3 others--Respondents
W.P. No. 1152 of 2005, decided on 18.4.2006.
(i) University of Peshawar Employees (Effieciency and Discipline) Statutes, 1977--
----S. 6(b)(i)--NWFP Removal from serviced (Special Powers) Ordinance, 2000 (V of 2000), S. 11--Condemned unheard--Petitioners were proceeded against and placed under suspension for this involvement in mal-practices the production of fake bank deposit slips of various banks of the Examination Section--Authority imposed upon them minor penalty of reduction in rank/lower post and also recovery of loss caused to the university exchequer--Order was in-question by contending that on coming into force, the Ordinance, 2000 the Statutes stand repealed, the inquiry report was without jurisdiction and lawful authority--Held: Any phrase or a sentence in a statute beginning with or prefixed by the word "Notwithstanding" is called "Non-Obstante Clause"--Main objects are either an exception or classification of the original position anyhow, there is no conflict between two provisions of the Ordinance--Second object by way of clarification or by way of abundant caution would be applicable--No express provision in the Ordinance, repealing either NWFP Civil Servants Act, 1973 and the Rules made thereunder or any other laws, like the Statutes. [P. 225] A & B
(ii) Removal From Service (Special Powers) Ordinance, 2000 (NWFP Ord. V of 2000)--
----S. 11, Disciplinary proceedings--Preamble good governance--Clarification--Ordinance was promulgated keeping in view the prevailing circumstances and furtherance of good governance to provide speedy measures relating to dismissal, removal of certain persons from Government service or Corporations service without repealing the laws already applicable to such persons--Ordinance is co-existant with such other laws--If the competent authority wants to proceed against a person under the Ordinance, the provisions to the contrary in other laws are to be ignored and vice versa--Petition dismissed. [P. 225] C & D
PLD 1979 Lah. 603; PLJ 1979 Lah. 513 and NLR 1989 CLJ 139 (FB).
Mr. Ijaz Anwar, Advocate for Petitioner.
Mr. Wasimuddin Khattak, Advocate for Respondents.
Date of hearing : 18.4.2006
Judgment
Fazlur Rehman Khan, J.--W.P. No. 1152 and W.P. No. 1153, both of the year 2005, are proposed to be disposed of by this single judgment, as common questions of law and facts are involved therein.
UNIVERSITY OF PESHAWAR
OFFICE ORDER
No. 127/Estt. Dated 18.6.2003.
Subsequent to the findings of the Inquiry Committee, constituted vide office Order No. 1041/Estt. Dated 8.8.2002, the competent authority is pleased to approve re-instatement of Mr. Shujaat Ullah, Superintendent, Examination/Degree Section and Mr. Rooh-ul-Amin, Junior Clerk (SC), Examination Section with immediate effect, with the imposition of penalties on both, under the provision of Section-6(b)(i) of the University of Peshawar Employees Efficiency and Discipline Statutes-1977, as per following specification:--
(i) Mr. Shujaat Ullah is reduced to the lower post of Assistant (S.C.) in BPS-15 with immediate effect against the post of Assistant in Islamia College, Peshawar vacated by Mr. Fazli Karim on his retirement.
(ii) Mr. Rooh-ul-Amin is reduced in rank as Junior Clerk in BPS-5 against his substantive post with immediate effect.
(iii) Twice the amount of the actual financial loss caused to the University exchequer shall be recovered from their salaries in equal amount from both.
Further, Mr. Shujaat Ullah, Assistant (SG), Examination/ Degree Section is transferred to the Establishment Section and detailed to work in the Women's Study Centre and Mr. Rooh-ul-Amin, Junior Clerk, Examination Section is transferred to the Establishment Section alongwith post.
This is issued with the approval of the competent authority.
Deputy Registrar (Estt-I)
University of Peshawar.
No. 11516-24/Estt. Of even date.
Copy to:
The Director, Women's Study Centre.
The Controller of Examinations.
The Treasurer.
The Deputy Treasurer.
The RAD (Audit).
P.S. to Registrar.
Mr. Shujaat Ullah, Assistant (SG)
Mr. Rooh-ul-Amin, Junior Clerk
Personal files.
Deputy Registrar (Estt-I)
University of Peshawar."
Through the present petitions, the petitioners have called into question the foregoing order.
We have heard Mr. Ijaz Anwar, Advocate for the Petitioners and Mr. Waseemuddin Khattak, Advocate, for the respondents and have also persued the record.
In support of the writ-petitions, the learned counsel for the petitioners contended, that firstly; in the present case, action against the petitioners has been taken under the University of Peshawar, Employees, Efficiency and Discipline Statutes, 1977 but on coming into force of the NWFP Removal from Service (Special Powers) Ordinance, 2000 (NWFP Ordinance No. V of 2000), hereinafter called the Ordinance, the foregoing statutes stood repealed and the petitioners were to be proceeded against under the relevant provisions of the Ordinance but by not doing so, the inquiry report is without jurisdiction and lawful authority, therefore, the petitioners are entitled to exoneration from the charge, secondly; that during the inquiry proceedings, the petitioners were neither summoned nor they were allowed any opportunity to cross-examine the witnesses appearing against them, as such, they have been condemned unheard and lastly; in the case of Roohul Amin, he has been reduced in rank as Junior Clerk in BPS-5 but he was already holding this post and the reduction in rank has not been specified.
So far as the first argument of the learned counsel for the petitioners is concerned, the learned counsel for the petitioners pointed-out that by appearance of the pharse in S. 11 of the Ordinance, "notwithstanding anything to the contrary contained in the North-West Frontier Province Civil Servants Act, 1973 (N.-W.F.P. Act No. XVIII of 1973) and the rules made thereunder, and any other laws for the time being in force", clearly shows that the Statutes, under which, action has been taken against the petitioners, stood repealed.
However, the foregoing argument is without force. Any phrase or a sentence in a statute beginning with or prefixed by the word, "Notwithstanding" is called "Non-Obstante clause" and its main objects are either it may create an exception, where there is a conflict between two provisions of a statute or it may be clarificatory of the original position and introduced only by way of abundant caution. (See (1) PLD 1979 Lahore 603 + PLJ 1979 Lahore 513, and (2) NLR 1989 CLJ 139 (F.B). However, in the present case, the first object would not be applicable because there is no conflict between two provisions of the Ordinance but the second object by way of clarification or by way of abundant caution would be applicable because there is no express provision in the Ordinance, repealing either the NWFP Civil Servants Act, 1973 and the Rules made there under or any other laws, like the Statutes.
Preamble of the Ordinance would show that it was promulgated keeping in view the prevailing circumstances and furtherance of good governance to provide for speedy measures relating to dismissal, removal etc. of certain persons from Government service or Corporation service without repealing the laws already applicable to such persons or in other words, this Ordinance is co-existent with such other laws, meaning thereby that if the competent authority wants to proceed against a person under the Ordinance, then the provisions to the contrary contained in such other laws, are to be ignored and vice versa. This is the clarification, which has been introduced by S. 11 of the Ordinance by using the Non-Obstante clause therein. This argument is, therefore, without force and is hereby rejected.
As far as the second argument of the learned counsel for the petitioner is concerned, perusal of the inquiry report shows that the petitioners were not only summoned, who attend the proceedings before the Inquiry Committee but also cross-examined all the witnesses appearing against them. The second argument of the learned counsel for the petitioners is also without force and is hereby rejected.
So far as the last argument of the learned counsel for the petitioners is concerned, though it is correct that there is no lower position in the junior clerk cadre, but by passing of the impugned order, Roohul Amin, petitioner, has been relegated to the lowest position in the cadre meaning thereby that all benefits earned by him in the shape of increments etc. had been taken away from him from the date of his original appointment and by passing of the impugned order, he is to be considered as if he has been freshly appointed for the purpose of seniority and increments, etc. The last argument is, therefore, also rejected.
For the reasons stated above, these petitions fail and are hereby dismissed with no order as to costs.
(Sh. Zulfiqar Ahmad) Petitions dismissed
PLJ 2006 Peshawar 226
Present: Ijaz-ul-Hassan, J.
HIDAYAT ULLAH KHAN--Petitioner
versus
YAQOOB KHAN MARWAT--Respondent
C.R. No. 1381 of 2004, decided on 8.5.2006.
(i) Interpretation of Rules--
----Rules for the advancement of justice and not to defeat ends of justice--Rules framed in the Code of Civil Procedure are Rules made for the advancement of justice and they should not, as far as possible be allowed to defeat the ends of justice. [Pp. 229 & 230] E
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. VII R. 11--Rejection of plaint--Court should reject a plaint which is manifestly meritless and vexatious and does not disclose a clear right to sue--Fruitless litigation is required to be buried at its inception to avoid the wastage of time of Court and unnecessary harassment to opposite party. [P. 229] A
(iii) Duty of Court--
----Question of rejection or return of plaint--Duty of the Court to examine plaint before issuance of summons--Validity--It is the duty of the Court before which a suit is instituted before issuance the summons to examine the plaint for the purpose of determining whether the plaint should be returned or rejected--Plaint cannot be rejected summarily where issues framed including question of maintainability--Where issues have been framed, including question of maintainability of suit, parties must be allowed to lead evidence and plaint cannot be summarily rejected--Plaint cannot be rejected where the plain reading of it discloses cause of action--Validity--Contents of plaint that have to be kept in view and if their plain reading discloses a cause of action, the plaint cannot be rejected because quite formidable objections were raised in defence. [P. 229] B & C
(iv) Civil Procedure Code, 1908 (V of 1908)--
----O. VII R. 11--Rejection of plaint--Maintainability--Violation of mandatory provision of law--Held: Trial Court committed an illegality by passing the impugned order for rejecting of plaint--Controversy could not be decided without recording evidence--Evidence should have been recorded thereon and thereafter it should have been decided. [P. 229] D
(v) Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Rejection of plaint--Plaint does not disclose any cause of action--Scope--Court should reject a plaint which is manifestly meritless and vexatious and does not disclose a clear right to sue--Rejection at preliminary stage--Held: Rejection of plaint is possible at preliminary stage when plaintiff has not led evidence in support of his case--Petition allowed. [P. 230] F
1993 SCMR 2039, PLD 2002 Peshawar 45, CLC 2002 Karachi 634, 1994; SCMR 826, 1988 SCMR 826, 2000 YLR 712, PLD 1995 SC 629, ref.
Mr. Muhammad Arif Khan, Advocate for Petitioner.
Mr. Abdus Samad Khan, Advocate for Respondents.
Date of hearing : 21.4.2006.
Judgment
Hidayatullah, plaintiff instituted suit against Yaqoob Khan Marwat, defendant, the then Director, Anti-Corruption Establishment, Peshawar, seeking recovery of Rs. 10,00,000/- as damages for mental torture and loss of reputation for maliciously involving the plaintiff in a false corruption case.
The facts which I have been able togather from the record of the case are, that while posted as Executive Engineer at Bannu, the residents of Sarwar Mama Kehl, Tehsil Lakki Marwat, District Bannu, submitted an application to the Ministry of Interior and Director Anti-Corruption, Peshawar containing serious allegations of corruption and irregularities against the petitioner. An inquiry, in pursuance thereof, was conducted by the Sub-Inspector (Anti Corruption Establishment) and the allegations were not proved and the Assistant Director Crimes (Anti-Corruption Establishment) recommended that the case be dropped against the petitioner. However, the respondent put the case to Anti Corruption Committee No. 1 for appropriate action. Finally, the petitioner having been found not guilty was exonerated of the charge.
The defendant in his written statement repudiated the allegations of the plaintiff and pleaded that suit was incompetent, not maintainable and barred under the expressed provisions contained in Section 5 of West Pakistan Anti Corruption Establishment Ordinance (Ordinance XX) 1961, read with Section 42 of the Police Act, 1861.
Consequent upon moving of an application under Order 7 Rule 11 CPC, the trial Court framed preliminary issues for adjudication as under:--
Whether the suit is maintainable in its present form?
Whether the suit is barred by any law?
Relief.
The learned Civil Judge, Peshawar, seized of the matter, accepted the application and rejected the plaint by his order dated 10.7.1999, mainly on the ground that defendant having acted in his official capacity, cannot be prosecuted in any manner and suit was not maintainable. An appeal was preferred thereagainst, which did not bear fruit. The same was dismissed by learned Additional District Judge, Peshawar, vide judgment dated 28.6.2004.
Feeling aggrieved thereby, the petitioner has approached this Court by filing instant civil revision under Section 115 CPC, which is before me for consideration.
Mr. Muhammad Arif Khan, Advocate, appearing on behalf of the petitioner, contended, inter alia, that the judgments and decrees of both the Courts below are against law and facts of the case; that same have been recorded in a mechanical manner without recording evidence whereby mandatory provisions of law have been violated and that the Courts below have failed in appreciating the plea of the petitioner that all the proceedings taken up, acts done and order passed by the defendant were motivated by bad intention and ulterior motive, which dis-entitle him to the protection given by the relevant law. The learned counsel added that only bonafide acts/mistakes have been condoned by the relevant law and by ignoring the aforesaid legal position, the trial Court as well the appellate Court have failed in the exercise of jurisdiction so vested in the learned Courts. In the last limb of argument, the learned counsel reiterated that the appellate Court has erred, while holding that audit report also supported the allegations, while actually the audit reports held responsible the Sub-Divisional Officer, Sub-Engineer and Tube-Well Operator only. To augument the contentions, reliance was placed on Mst. Karim Bibi and others vs. Zubair and others (1993 SCMR 2039), Muhammad Zaman & others vs. Shah Wazir Khan (PLD 2002 Peshawar 45) and Kanwar Qutubuddin Khan vs. Karachi Development Authority through Director General (CLC 2002 Karachi 634).
Mr. Abdul Samad Khan, Advocate, representing the respondent, on the other hand, fully supported the judgments and decrees of the two Courts below and reiterated that in order to re-invoke the applicability of Order 7, Rule 11(a) CPC, the Court has to look into the contents of the plaint only and has to examine the plaint on its face value. If the plaint by itself, indicates any infirmity in clause (a) to (d) or R. 11 O. VII, then the Court should order rejection of plaint as the fruitless litigation required to be burred at its inception to avoid the wastage of time of Court and unnecessary harassment to opposite party. The learned counsel added that Court while rejecting the plaint under Order--VII Rule 11 cannot take into consideration the plea of the defendant when such plea is disputed and denied by the plaintiff. To augument the contentions, reliance was placed on 1994 SCMR 826 and PLD 2002 Peshawar 45, Nazeer Ahmad and others vs. Ghulam Mehdi and others (1988 SCMR 826) and 2003 YLR Peshawar 712).
Having considered the submissions of learned counsel for the parties in the light of the material on record and the case law cited at the bar, I am of the view that the contentions of learned counsel for the petitioner carry weight and must prevail. No doubt it is true that the Court should reject a plaint which is manifestly meritless and vexatious and does not disclose a clear right to sue, as the fruitless litigation is required to be buried at its inception to avoid the wastage of time of Court and un-necessary harassment to opposite party as held in PLD 2002 Peshawar 45 but the fact cannot be lost sight of that in the instant case, the plaint of the petitioner vividly discloses cause of action and the relevant law of damages is clearly attracted to the facts narrated in the plaint. It is duty of the Court before which a suit is instituted before issuance the summons to examine the plaint for the purpose of determining whether the plaint should be returned under Rule to anti or rejected under Rule 11. Ordinarily as soon as the cause of rejection appears, the plaint should be rejected straightaway, for such a suit should be taken off the file at its very inception and the plaintiff allowed opportunity to retrace his steps as permitted by Rule 13 post. However, where issues have been framed, including one on the question of maintainability of suit, the parties must be allowed to lead evidence and the plaint cannot summarily be rejected. It is always the contents of the plaint that have to be kept in view and if their plain reading discloses a cause of action, the plaint cannot be rejected simply because quite formidable objections are raised in defence, as held in 1986 CLC 1181. In this case, the averment made in the plaint is that the respondent allegedly involved the petitioner in a false case of corruption and damaged his reputation and caused mental torture, in which he was consequently exonerated. True or false, the allegation apparently disclosed commission of a tortuous act on the part of the respondent and the petitioner was made to suffer for more than two years. He complained of agony and huminilitation at the hands of the respondent and ostensibly could ask for re-compensation in the shape of damages. Since Issue No. 1 had already been framed regarding this controversy, therefore, the trial Court committed an illegality by passing the impugned order for rejection of the plaint. The controversy could not be decided without recording evidence. Evidence should have been recorded thereon and thereafter it should have been decided. The learned trial Court after having reflected he said controversy in Issues Nos. 1 and 2, should have decided the suit after recording evidence in order to do complete justice between the parties. It was observed in Irshad Ali's case (PLD 1995 SC 629), that:--
"A party should not be denied a relief on account of technicalities in the procedural law, as the same is formed for the purpose of regulating the legal proceedings, they are extended and designed to foster the cause of justice rather than to defeat it."
It is settled principle of law that the rules framed in the Code of Civil Procedure are Rules made for the advancement of justice and they should not, as far as possible be allowed to defeat the ends of justice, as held in Muhammad Sarwar's case (1980 CLC 946).
Where the plaint does not disclose any cause of action, it has to be rejected and for this purpose only the plaint is to be looked into and nothing else. The Court should reject a plaint which is manifestly meritless and vexatious and does not disclose a clear right to sue. The rejection of plaint is possible at preliminary stage when plaintiff has not led evidence in support of his case. Court can reject the plaint only if Court reaches at such conclusion after considering statement made in plaint and other material available on record which plaintiff admits as correct.
In the result and for the foregoing reasons, this revision petition is accepted, judgments and decrees of both the Courts below are set aside and the case is remanded to the trial Court with direction to decide the same on merit, preferably within six months, after receiving the order of this Court. There shall be no order as to costs. The parties shall appear before the trial Court on 15.5.2006. The office is directed to send the record forthwith to the trial Court.
(Rao Farid-ul-Haque Khan) Petition allowed
PLJ 2006 Peshawar 230 (DB)
Present: Dost Muhammad Khan and Raj Muhammad Khan, JJ.
IJAZ KHAN--Petitioner
versus
APA BARRA PESHAWAR and anothers--Respondents
W.P. No. 2038 of 2005, decided on 31.5.2006.
(i) Frontier Crimes Regulation (III of 1901)--
----Ss. 8 & 11--Constitution of Pakistan, 1973, Art. 199--Procedure--Dispute to be referred to the Council of Elders by Political Agent--Mandatory provisions--Validity--Resolution of civil disputes, S. 8 of the Regulation provides a clear procedure while S. 11 of the same provides procedure for dealing with criminal references--In both provisions, it has been mandatory for the Political Agent/Deputy Commissioner to refer the dispute to the Council of Elders. [P. 233] A
(ii) Frontier Crimes Regulation (III of 1901--
----S. 8--Procedure to be followed by the Political Agent/Deputy Commissioner before taking cognizance--Mandatory upon the Political Agent/Deputy Commission to satisfy himself about the existence of serious and bona fide dispute--Validity--Before taking cognizance he shall judicially satisfy himself about the existence of serious and bona fide dispute between the parties which is likely to cause blood feud, murder, culpable homicide not amounting to murder, mischief or breach of peace or in which either or any of the party belong to a frontier tribe--Neither Political Agent/Deputy Commissioner who acts as a Tribunal nor PA/APA had jurisdiction in the absence of such conditions--Validity--Political Agent/Deputy Commissioner act as a Tribunal and its jurisdiction is fully dependant on the existence of these facts/conditions, in the absence of which it will have no jurisdiction to take cognizance either of a civil dispute or of an offence--Similarly, the PA/APA have no jurisdiction to decide the dispute himself or to pass an order decree without complying with the mandatory provision of referring the dispute to the Council of Elders. [Pp. 234 & 235] B & C
(iii) Principle of Law--
----Jurisdiction of tribunal--Contravention of law--Fundamental principle of law--Effect--Validity--Tribunal having jurisdiction to decide a particular matter, it shall decide according to law as it has no jurisdiction to decide it in contravention of any law--Any wrong decision by it would be in disregard of law. [P. 235] D
(iv) Frontier Crimes Regulation (III of 1901)--
----Ss. 8 & 11--APA assumed jurisdiction without judicial satisfaction--Effect--No criminal case/offence was constituted from the facts mentioned in the application/complaint, the legal course open to him was to have dismissed the complaint--Held: Legal authority under the (FCR) to quit the criminal jurisdiction and assume the other one under Section 8 of the FCR at his whims and pleasure. [P. 235] E
(v) Criminal Procedure Code, 1898 (V of 1898)--
----S. 86-A--Provisions--Safeguards provided against the removal of a person to the tribal areas--Scope--Further safeguards are provided against the removal of a person to the tribal area arrested under the warrant of the Political Authorities--Arrested person would have to be produced before Illaqa Magistrate who has to hold inquiry/trial and if he is judicially satisfied from the evidence produced before him raising strong and probable presumption that the person wanted by the Political Authorities has committed offence mentioned in the warrant of arrest then the removal of the arrested person to the tribal area is to be authorized by him. [Pp. 235 & 236] F
(vi) Criminal Procedure Code, 1898 (V of 1898)--
----Preamble--Political Khasadars and whisking away the required person--"Political Khasadars" intrude into the settled area and whisk away the required person to the tribal area--Held: Such a practice is undoubtedly illegal rather would constitute an offence of kidnapping and abducting of a person from the settled area to the tribal area.. [P. 236] G
(vii) Constitution of Pakistan, 1973--
----Art. 247(7)--Jurisdiction of the Court with respect to subject matter--Though the respondent resides and performs his function beyond the territorial jurisdiction of High Court but the illegal and unlawful warrant of arrest issued against the petitioner is being executed within the territorial jurisdiction of High Court--An imminent threat of arrest to the petitioner has been caused, the effect and impact of the order is thus felt here and the impugned order of arrest is being given effect within the territorial jurisdiction of High Court--Held: High Court has jurisdiction to strike down the same or to retain the local authorities from execution of such warrant who are functioning within the jurisdiction of High Court. [P. 236] H
(viii) Constitution of Pakistan, 1973--
----Chapt I. Part II--Protection of fundamental rights--Court has Constitutional obligation to jealously safe guard fundamental rights against any invasion and could competently step-in such a case. [P. 236] I
PLD 1987 SC 477, PLD 1968 SC 131 and PLD 1963 SC 373, ref.
Mr. S.M. Attique Shah, Advocate for Petitioner.
Mr. Akhtar Naveed, D.A.G. and Mr. Muhammad Iqbal Durrani, Advocates for Respondents.
Date of hearing: 31.5.2006.
Order
Dost Muhammad Khan, J.--Through this constitutional petition, the petitioner has questioned non-bailable warrant of arrest issued against him by Respondent No. 1 (APA Bara, Khyber Agency) in a case/complaint filed by Respondent No. 2 (Janat Gul). Petitioner has also questioned the jurisdiction of the Respondent No. 1 in the subject-matter.
Arguments heard and recorded perused.
The perusal of complaint/application filed by Respondent No. 2 would show that he is claiming an amount of Rs. 5,00,000/- (Ruees five lacs) being due against the petitioner and without praying for the recovery of the amount or any other legitimate relief, he has prayed for the issuance of warrant of arrest against the petitioner, a resident of Peshawar.
The application/complaint was sent to the Political Tehsildar. After recording the statement of the complainant (Respondent No. 2) the Political Tehsildar re-submitted the file to the APA, who without any judicial satisfaction as required under Section 8 of the F.C.R., 1901 issued notice against the petitioner and took cognizance in this manner. After repeating the notices to the petitioner when he did not appear, Respondent No. 1 (APA) issued non-bailable warrant of arrest and the petitioner was thus arrested but was released on bail by the learned Additional Sessions Judge, Peshawar on 7.11.2003.
Initially, the application/complaint was filed under Section 419/420 PPC without showing the facts constituting such offences but the most astonishing and shocking aspect of the matter is that the APA (Respondent No. 1) without any prayer converted the complaint to a civil suit and switched over from criminal jurisdiction and assumed civil one in the matter assigning no reason whatsoever. Despite assumption of civil jurisdiction, the subject-matter has been described up to the last order-sheet dated 30.8.2005 as a complaint and not a civil suit.
After the sudden shift, taken in the course of judicial proceedings without lawful authority, the petitioner was chased by means of different processes issued by the APA (Respondent No. 1) and the last notice in this regard was published in the press with a direction to the petitioner to appear before him. The petitioner when could not appear, an ex-parte decree was passed on 16.6.2005 for the recovery of the above stated amount against him which was converted into execution proceedings and again warrant was issued against the petitioner which has been questioned in this petition.
The petitioner has squarely denied of receiving any amount from Respondent No. 2 (Janat Gul complainant at either within the tribal area or in the settled area. The complainant has also not annexed any thing in black & white to show that the parties have had any such transaction inter se in the past anywhere.
The Frontier Crimes Regulation (Regulation No. III) of 1901, was promulgated by the Britishers, the then alien masters of the Sub-Continent, for achieving their own objects which they thought expedient at the relevant time.
According to Clause 3 of Section 1, it has been made applicable to the area specified in the 3rd schedule and has also empowered the Governor to exempt an area from the operation of any of its provision. At different successive stages, different areas/districts specified in the 3rd schedule were excluded from the operation of the Regulation and at present the said Regulation is in vogue only in the tribal area or some of the Frontier Regions adjoining the tribal areas and does not extend beyond those frontiers.
For the resolution of civil disputes, Section 8 of the Regulation provides a clear procedure while Section 11 of the same provides procedure for dealing with criminal references. In both the provisions, it has been made mandatory for the Political Agent/Deputy Commissioner to refer the dispute to the Council of Elders. In the instant case Section 8 is relevant and to understand the true import of the same, it is reproduced below:--
"8. Civil References to Council of Elders.--
(1) where the Deputy Commissioner is satisfied, from a police report or other information, that a dispute exists which is likely to cause a blood-feud or murder, or culpable homicide not amounting to murder, or mischief or a breach of the peace, or in which either or any of the parties belongs to a frontier tribe he may, if he considers that the settlement thereof in the manner provided by this section will tend to prevent or terminate the consequences anticipated, and if a suit is not pending in respect of the dispute, make an order in writing, stating the grounds of his being so satisfied, referring the dispute to a Council of Elders, and requiring the Council to come to a finding on the matters after making such inquiry as may be necessary and after hearing the parties. The members of the Council of Elders shall in each case, be nominated and appointed by the Deputy Commissioner.
(2) The order of reference made under sub-section (1) shall state the matter or matters on which the finding of the Council of Elders is required.
(3) On receipt of the finding of the Council of Elders under this section, the Deputy Commissioner may--
(a) remand the case to the Council for a further finding; or
(b) refer the case to a second Council; or
(c) refer the parties to the Civil Courts; or
(d) pass a decree in accordance with the finding of the Council, or of not less than three-fourth of the members thereof, on any matter stated in the reference; or
(e) declare that further proceedings under this section are not required."
Similar procedure has been laid down by Section 11 of the Regulation with the only exception that the Council of Elders nominated by the Deputy Commissioner and the names of' the members so nominated be communicated to the accused persons and the accused will have right of objection which shall be recorded and the Deputy Commissioner may in his discretion either accept or reject the objection but while rejecting the objection he shall have to record reasons for doing so.
Under the provision of Section 8 of the FCR, it has been made imperative pre-condition for the Deputy Commissioner that before taking cognizance he shall judicially satisfy himself about the existence of serious and bona fide dispute between the parties which, is likely to cause blood feud, murder, culpable homicide not amounting to murder, mischief or breach of peace or in which either or any of' the party belong to a frontier tribe. The Deputy Commissioner/Political Agent act as a Tribunal and its jurisdiction is fully dependant on the existence of these facts/conditions, in the absence of which it will have no jurisdiction to take cognizance either of a civil dispute or of an offence. Similarly, the PA/APA have no jurisdiction to decide the dispute himself or to pass an order or decree without complying with the mandatory provision of referring the dispute to the Council of Elders.
It is fundamental principal of law and justice both that a Tribunal having jurisdiction to decide a particular matter, it shall decide the same according to law as it has no jurisdiction to decide it in contravention of' any law. Any wrong decision by it would suffer from jurisdiction defect and would be in disregard of' law as held by the Hon'ble Supreme Court in the case Utility Stores Corporation of Pakistan Limited vs. Punjab Labour Appellate Tribunal (PLD 1987 SC 447).
In the instant case, the APA assumed jurisdiction albeit without judicial satisfaction under Section 11 treating the application of Respondent No. 2 (Janat Gul) as complaint for crimes under Section 419/420 PPC but at a latter stage he made a somersault and laid hand on Section 8 treating the criminal complaint a civil suit and without referring the case to the Council of Elders passed an ex-parte decree and that too, without any proof muchless legal and tangible one. If at all he was of the view that no criminal case/offence was constituted from the facts mentioned in the application/complaint, the only legal course open to him was to have dismissed the complaint as under no circumstances he had any legal authority under the (FCR) to quit the criminal jurisdiction and assume the other one under Section 8 of the FCR at his whims and pleasure.
We have noticed with serious concern in more than one cases where the Political Agents of the Tribal area had carelessly assumed jurisdiction on such unfounded applications without making any satisfaction as to whether they had the jurisdiction in the matter or not and that whether the cause of action accrued to an applicant was within their territorial jurisdiction. Such unfettered exercise of their quasi judicial functions on their part has encouraged unscrupulous persons of the tribal areas by illegally dragging citizens of the settled area to the tribal area. Even the Framers of' the Regulation have provided enough safe guards against such practice but unfortunately the Political Agents conveniently ignore the pre-requisites/conditions and readily assume jurisdiction in matters which apparently do not fall within their domain.
Under the provisions of Section 86-A Cr.P.C. further safe guards are provided against the removal of a person to the tribal area arrested under the warrant of the Political Authorities as the person so arrested shall have to be produced before the Illaqa Magistrate who has to hold inquiry/trial and if he is judicially satisfied from the evidence produced before him raising strong and probable presumption that the person wanted by the Political Authorities has committed offence mentioned in the warrant of arrest then the removal of' the arrested person to the tribal area is to be authorized by him. In many cases the "Political Khasadars" intrude into the settled area and whisk away the required person to the tribal area. Such a practice is undoubtedly illegal rather would constitute an offence of kidnapping and abducting of a person from the settled area to the tribal area. It is an undeniable fact that once a person is taken from the settled to the tribal area, he is lodged there in the lockup for indefinite period unless the amount sought by the complainant is reovered from him which amounts to extortion.
The objection of' the learned counsel for Respondent No. 2 (Janat Gul complainant) that this Court in view of Article 247(7) of the Constitution has no jurisdiction with respect to the subject-matter cognizance of which has been taken by Respondent No. 1, is entirely untenable. True, that Respondent No. 1 (APA Bara Khyber Agency) resides and performs his function beyond the territorial jurisdiction of this Court but the illegal and unlawful warrant of arrest issued against the petitioner is being executed within the territorial jurisdiction of this Court. An imminent threat of arrest to the petitioner has been caused, the effect and impact of the order is thus felt here and the impugned order of arrest is being given effect within the territorial jurisdiction of this Court. Therefore, this Court has the jurisdiction to strike down the same or to restrain the local authority from the execution of such warrant who are functioning within the jurisdiction of this Court. Not only, under the provision of Chapter-I Part-II of the Constitution of 1973, liberty, security, dignity and freedom of a person has been fully secured and guaranteed but also under the charter of human rights this Court has constitutional obligation to jealously safe guard such fundamental rights against any invasion and could competently step-in in such a case.
In the case of Abdul Ghani and another vs. Subsedar Shoebar Khan Company and others (PLD 1968 SC 131), the Hon'ble Supreme Court held the following views:--
"(b) Frontier Crimes Regulation (III of 1901), Sections 8, 20 and 60. Provisions of Sections 8 & 20 do not confer on Deputy Commissioner any power "to try and determine suit"--Hence summons issued under O. V, R. 1 CPC in form as given in Appendix B No. 1 in First Schedule to C.P.C. calling upon party to attend on particular date "to answer all material questions relating to suit" and further stating ":in default of appearance.... the suit will be heard and determined in your absence"--Held, without jurisdiction--Assistant Political Officer exercising powers of Deputy Commissioner issuing such summons--Acts in excess of statutory powers--Such action taken or order passed under Regulation in excess of statutory powers--Open to corrective procedure of writ jurisdiction--Mandamus issued to Assistant Political Officer to withdraw and/or cancel the summonses".
The Frontier Crimes Regulation, 1901 provides by its Section 8(1) for reference of certain civil disputes, which if unsolved, are likely to lead to bloodshed or disturbance of peace or which involve parties belonging to Frontier tribe' to a Council-of-Elders
"requiring the Council to come to a finding on the matters in dispute after making such inquiry as may be necessary and after hearing the parties". Then, sub-section 8(3)(d) empowers the Deputy Commissionerto pass a decree in accordance with the finding of the Council'. Further, under
Section 20 he "may exercise all or any of the powers conferred by the Code of Civil Procedure and the Code of Criminal Procedure, 1898, respectively, as the case may be, for the purpose of compelling the attendance, before himself or the Council-of-Elders, of the parties, and witnesses, or any of them, in any case and at any stage of the proceedings". It will, however, be too much to suggest that either Section 8 or Section 20 confers on him any power to try and determine a suit. Hence where in a civil proceeding, instituted under
Section 8 of the Regulation, by a resident of Tribal Area (North Waziristan), the summonses issued to the defendants residing at Lyallpur (West Pakistan) clearly stated that the person concerned was required to attend on a particular date in person or by Vakil "to answer all material questions relating to the suit", that the day fixed for his appearance "is appointed for the final disposal of the suit" and that he "must be prepared to produce on that day all the witnesses upon whose evidence and all the documents" upon which he intended to rely in support of his defence, it was held that the issue of such summonses was without lawful authority. Such summonses it was held, are issued under Order V, Rule 1, of the Code of Civil Procedure by the
Court which is going to try and determine the suit. Neither Section 8(1) nor
Section 20 gives such power of trying and determining a civil suit to the
Deputy Commissioner. The Assistant Political Officer is a creature of statute and despite the provisions in the Regulation shutting out jurisdiction of the ordinary Courts in respect of orders passed or action taken under the
Regulation, the corrective procedure of writ jurisdiction would be available if the authority concerned acts in excess of its statutory power. Muhammad Akram v. The State PLD 1963 SC 373 cannot be cited as an authority for challenging the High Court's power to issue writ in a case in which an officer has acted in excess of his statutory powers. Anything done beyond or in excess of power conferred by statute can be brought within the power of avoidance vested in the High Court. In such a case the High Court can examine if the officer concerned has acted in accordance with the powers conferred upon him by the statute. If he acts within his power, Section 60 will operate as a bar to the jurisdiction of the Court, but when he acts in excess of his power, his order is susceptible to interference by the High Court in its writ jurisdiction.
In the circumstances, therefore, the Supreme Court ordered issuance of directions in the nature of mandamus to the Assistant Political Officer and
A.D.M. to withdraw and/or cancel the summonses and refrain from giving effect to them or taking any action in pursuance of them.
For the above stated reasons, this petition is allowed and the warrant of arrest issued by Respondent No. 1 to effect the arrest of the petitioner is declared to be the result of illegal exercise and assumption of jurisdiction, therefore, is declared without lawful authority and without jurisdiction. The local authorities including the local police are hereby restrained from giving effect to or executing the said warrant of arrest impugned in this petition in any manner whatsoever.
(Rao Farid-ul-Haque Khan] Petition allowed
PLJ 2006 Peshawar 238 (DB)
Present: Salim Khan and Hamid Farooq Durrnai, JJ.
Mst. RASHIM JAN--Petitioner
versus
ADDL. DISTRICT JUDGE-I, HAIRPUR and another--Respondents
W.P. No. 106 of 2006, decided on 5.5.2006.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Special concession regarding evidence to be given under extra-ordinary special circumstances--Validity--Special concession was given to the plaintiff on his application--Record nothing show that what were the extra-ordinary special circumstances which compelled the plaintiff to submit application although the parties were present and no application was submitted by the plaintiffs. [P. 240] A
Act of Court--
----Justice not only to be done but it is seen to have been done--Courts have powered for proceeding in accordance with law but Courts are bound to not only do justice but to ensure that it is seen that justice is being done and has been done to the parties--Petition dismissed.
[P. 240] B
Mr. Nazakat Hussain, Advocate for Petitioner.
Date of hearing : 5.5.2006.
Judgment
Salim Khan, J.--The grievance of Mst. Reshim Jan is that the learned Addl: District Judge, Haripur wrongly accepted the revision of the respondent against the judgment and order of the learned trial Court dated 19.10.2004 in pre-emption Suit No. 101/2003 and set aside the said judgment and order by his judg ment and order dated 10.12.2005.
A suit was instituted by Mst. Reshim Jan against Mian Khan and Fardoon Bibi for possession of the property through pre-emption as mentioned in detail in the plaint. An application was submitted by the learned counsel for the plaintiff on 16.10.2004 for permission to record evidence of the plaintiff before the date fixed as he was an important witness and he was leaving for abroad. Notice was given to the counsel for the respondent-defendant and his clerk appeared on 18.10.2004. The examination-in-chief of the witness was recorded and the date was fixed for 19.10.2004, on which date counsel for the defendant moved an application that the defendant be summoned as he would not cross-examine the witness without his presence. That application was turned down. The counsel for the defendant was directed to cross-examine the witness who declined. Hence the right of cross-examination of defendant to the extent of P.W. 2 was struck off.
This aggrieved the defendant who went to the Court of Addl: District Judge, Haripur in Civil Appeal No. 42/14 of 2004. The learned Addl: District Judge heard the arguments of both the sides and came to the conclusion that the order dated 19.9.2003 was not maintainable, that the issues were not framed as these were not available on the file, and directed the learned original Court to record evidence with opportunity of cross-examination in accordance with law. The plaintiff came with the present writ petition against the said order dated 10.12.2005.
The learned counsel for the petitioner contended that the appearance by counsel is appearance by a party, that it is the duty of the counsel to obtain full instructions from his client and that it is not the duty of the Court to procure the attendance of the client for the counsel. He further contended that when an opportunity is given to a counsel and that opportunity is not availed of, then his client is bound by his conduct and cannot claim a right to such an opportunity once again. He also contended that service of the counsel has always been considered as service of a party. He submitted that the court had served the counsel and the counsel had declined, therefore, the learned Addl. District Judge has wrongly decided that opportunity be given to the respondent for cross-examination of the witness whose statement was recorded on 18.10.2004.
We heard the arguments of the learned counsel for the petitioner and perused the available record.
It has clearly been brought on record by the learned Addl. District Judge that no order sheet regarding submission of the application on 16.10.2004 was written and that notice was given to the learned counsel for the defendant while making endorsement on the back of the application. It is always the right of a party to have a proper chance of hearing. The order sheet dated 13.10.2004 shows that Patwari halqa was not present despite the serving of summons and a warrant of arrest was issued against him for 3.11.2004. The petition writer was present on that date but he did not produce the relevant record because the plaintiff had not mentioned the record.
It was a special concession given to the plaintiff on his application dated 16.10.2004 that the statement of his witness was recorded on 18.10.2004. There is nothing on record to show that what were the extra ordinary special circumstances which compelled the plaintiff to submit such an application on 16.10.2004 although the parties were present on 13.10.2004 and no such application was submitted by the plaintiff, which if submitted on 13.10.2004, would have come to the knowledge of the defendant, three days before 16.10.2004. The unknown emergency took the learned Judge of the conclusion that the statement of the witness, without examining petition writer and patwari halqa, who were called for 6.11.2004, be recorded on 18.10.2004 or 19.10.2004. The Courts have powers for proceeding with the cases in accordance with law but the Courts are bound to not only do justice but to ensure that it is seen that justice is being done and has been done to the parties.
The plaintiff avoided submission of application on 13.10.2004, and the Court, without recording any order sheet, summarily conducted proceedings on the application without taking into consideration the convenience of the parties. The learned counsel for the defendant was taken by surprise on 18.10.2004 and 19.10.2004, when he was already confident that the next date for hearing was fixed as 6.11.2004 when the case was dealt with on 13.10.2004.
The learned Addl: District Judge has rightly decided the appeal in the ends of justice to be done equally to both the parties without prejudice to any of the parties, in order to facilitate the opposite party.
We find no merits in the present writ petition which is hereby dismissed in limine.
(Rao Farid-ul-Haque Khan) Petition dismissed
PLJ 2006 Peshawar 241 (DB)
Present: Dost Muhammad Khan and Jehanzaib Rahim, JJ.
MUHAMMAD TARIQ--Petitioner
versus
Mst. SHAHEEN and 2 others--Respondents
W.Ps. Nos. 161 & 422 of 2005, decided on 16.5.2006.
Administration of Justice--
----Purpose of Law--Technicalities--Avoided--Law does not provide protection or premium to the usurper or pirate but always favour the victim and aggrieved party. [P. 247] F
Dower--
----Entitlement--Jurisdiction--Dower paid to the wife and snatched by the husband would automatically restore his liability to repay the same and it shall remain as a dower due to the wife triable by the Family Courts alone. [P. 246] D
Dower--
----Husband paid the dower and later on snatched it--Held: Dower remained as dower, neither undergo any change nor it is transformed to a civil liability in case it is snatched or taken back forcibly from wife by the husband. [P. 246] C
Jurisdiction--
----The act of snatching would amount to disposal of her property and the Family Court alone would have jurisdiction to take cognizance for the recovery of the same. [P. 246] E
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 10--Entitlement of dower--Right of the wife to recover her dower in ordinary circumstances is indefeasible one--Wife has a right to recover the same from the property of her deceased husband under the Islamic Law which has adapted by existing Statutory Law. [P. 245] B
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 5--Constitution of Pakistan, 1973, Art. 199--Matrimonial matters--Exclusive jurisdiction of Family Courts--Section 5 of the Family Courts Act has conferred upon the family Courts exclusive jurisdiction in all matters arising out of matrimonial disputes subject to the provisions of the Muslim Family Law Ordinance, 1961 and the Conciliation Court Ordinance, 1961. [P. 243] A
Mr. Saeed Baig, Advocate for Petitioner.
Mr. Muhammad Alam Khan, Advocate for Respondents.
Date of hearing : 16.5.2006.
Judgment
Dost Muhammad Khan, J.--This single judgment shall also decide W.P. No. 422 of 2005 because question of law in both are identical.
Suit for recovery of dower, dowry, maintenance allowance till expiry of "Iddat" period and for dissolution of marriage filed by the respondent-plaintiff was decreed by Family Court, Mardan vide judgment dated 11.3.2004.
The petitioner questioned the said judgment and decree in appeal before the learned Additional District Judge-I, Mardan on 19.4.2004 which was heard and decided on 8.1.2005.
The learned Court of appeal confirmed the judgment and decree of the Family Court vide impugned judgment dated 8.1.2005 with regard to the maintenance allowance and dowry articles but on account of the admission of the plaintiff that although the dower was paid to her but was snatched/taken back by the petitioner, it was held that the liability to pay the dower was discharged and now dower snatched is civil liability of the petitioner, the respondent-plaintiff has to file a civil suit and that Family Court has no jurisdiction in this regard. Such conclusion was drawn on the view taken by the learned High Court, Lahore in Allauddin Arshad's case (PLJ 1984 Lahore 401) (SB) as was stated at the bar.
Learned counsel for the petitioner relied on the said view once again to defend the impugned judgment.
In the case of Allauddin Arshad Supra, his lordship Mr. Justice Gul Zarin Kiyani-J, who then was, held that once a dower is paid to the wife, the liability of the husband is discharged and its subsequent snatching by the husband did not fall within the jurisdiction of the Family Court under Section 5 read with the schedule of the Family Court Act, 1964 and that being a civil liability, the wife has to file a regular suit for recovery of the same before the civil Court.
The Hon'ble Judge while holding so has not given solid reasons supported either by the principles of Muslim Law or the provisions of the Family Court Act and Rules. With profound respect we differ with the view because it does not advance the cause of justice being based on technicality of unessential nature.
The Preamble to the Family Court Act (Act No. XXXV of 1964) is the to the following effect:--
"Preamble: Whereas it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters concerned therewith;
It is hereby enacted as follows:"
The applicability of the Act has been excluded only with respect to pending petitions under the Guardian and Wards Act by the provisions of Sub-sections (4) and (5) of Section 1 thereof. However, Sub-section (5) further provides that on the coming into force of the Act, suits pending for trial or hearing in any Court shall be tried on a petition to be made to the Family Court.
The provisions of Section 5 of the Act has conferred upon the Family Courts exclusive jurisdiction in all matters arising out of matrimonial disputes subject to the provisions of the Muslim Family Law Ordinance, 1961 and the Conciliation Court Ordinance, 1961. The cases/disputes exclusively triable by Family Courts are shown in the schedule appended thereto which are as under:--
(1) Dissolution of Marriage.
(2) Dower.
(3) Maintenance.
(4) Restitution of conjugal rights.
(5) Custody of children.
(6) Guardianship
(7) Jactitation of marriage.
Through Amendment Ordinance (LV of 2002) dated 1.10.2002, cases of dowry, personal property and belongings of a wife and offences under Sections 337(A), (F), 341 to 346, 352 and 509 of the PPC and its abetment have also been included in the schedule besides the regulating of custody of children including the visitation rights of parents to meet them. Further through Family Court Amendment Act (VII of 1997) suit for recovery of dowry has been made exclusively triable by the Family Court. These amendments made in the Act are a clear manifestation of the intention of the legislature to bring all matrimonial disputes within the jurisdiction of one and the same forum (Family Court).
In view of the growing tendency of gender pre-judice in the society, the dominant role the husband enjoys and play without pause and check in his domestic affairs like a free loader and because of the phenomena of quick rise in the incidents of committing violence on house wives by their husbands behind the closed doors rarely exposed to public eyes, the legislature has deemed it expedient to step in and suppress this grave mischief, the offences and its abetment etc. punishable under Sections 337-A(i), 337-F(i), 341 to 346, 352 and 509 of the Pakistan Penal Code have, therefore, been made triable by Family Court in its summary jurisdiction with the view to provide quick relief to the victim.
Several others amendments have been introduced in Section 10 by adding a proviso which allows the dissolution of marriage on the basis of "Khula" at pre trial stage when reconciliation fails and has also fixed the outer limit of time for Family Court to decide family cases including suits for dissolution of marriage within a period of six months and to report to the High Court in case of delay. By inserting Clause (b) and (c) to Section 14 of the Act through the Ordinance ibid the right of appeal has been taken away in cases where decree for dower or dowry not exceeding Rs. 30,000/- and in case the maintenance allowance of Rs. 1000/- or less is granted.
These glaring amendments made in the Act in quick succession were with the object to prevent/avoid cruelty to wives which has become a routine phenomena and because in the past, final decision in cases of family disputes were to take years like regular civil suits. This mischief has thus, been considerably suppressed.
The combined study of the preamble, that of Section 1 and Section 5 of the Act including the above amendments, would show the legislature clear intent that matrimonial disputes of all kinds specified/listed in the schedule by now are to be exclusively dealt with and tried by the Tribunal (Family Court) established and constituted under Section 3 of the Act while jurisdiction of all other Courts, Tribunals including Civil Courts has been expressly ousted.
What is dower has not been appropriately defined by the provision of Section 10 of the Muslim Family Laws Ordinance, 1961. It speaks only about the kinds of dower i.e. prompt and deferred, however, the same has been interpreted by the Jurists and Courts as a consideration for marriage.
The origin of dower dates back to the pre-Islamic era. Much before the pre-Islamic days, the husbands used to despoil/deflower their wives and then to turn them out a drift, absolutely helpless and without any means to survive honourably. With the evolution of tribal system and when a little wisdom prevailed then it became customary condition to fix some dower for the validity of a marriage but for the enforcement of such right, the wife was having no efficacious remedy as there was no binding custom/sanction of any rule behind it thus, this customary obligation was oftenly disregarded without check as the tribal system by then was unorganized being bereft of codified rules. On the advent and promulgation of Islam, this detestable practice was forbidden and was declared unjust towards the fair sex as is evident from the different verses of the Holy Quran. In "Sura Nisa" it has been ordained that:--
URDU
This right is extinguished only in cases where the wife convert herself to another religion or when the marriage was solemnized between two non-muslims and after the marriage the husband convert to Islamic while the wife remains non-muslim or when a wife exercises the right of option of puberty for dissolution of marriage. Similarly, half of dower would be payable if marriage is dissolved before consummation or if the wife seeks dissolution of marriage on the basis of "Khula" then her right of dower is extinguished. Except the instances mentioned above right of wife to recover dower cannot be taken away or defeated through other means.
URDU
The creation of welfare State is the basic and fundamental principle of the religion of Islam and this object can be achieved if spouses live a happy life in harmony and reasonable restraints as provided by the Islamic Law are imposed on them not allowing them to transgress the limits ordained by Allah, The Almighty. The fixation of dower and its payment to the wife by the husband is one of the limitation/consideration laid down so that the husband has no free hand or super-imposing status over the wife in matrimonial life. The Quranic verses and the Sayings of the Holy Prophet (Peace be upon him) would show that the religion of Islam has placed the marriage on a very high and scared pedestal and not as a mere social union for the sake of pleasure alone.
Now adverting to the point under discussion, in our humble view, dower remains as dower, neither it undergo any change nor it is transformed to a civil liability in case it is snatched or taken back forcibly from wife by the husband.
Neither Muslim Family Laws Ordinance, 1961 nor the provisions of the Family Courts Act, 1964 has provided either impliedly or expressly that when the dower paid is snatched by the husband then for its retrieval, the wife shall have to make recourse to the Civil Court. The view held in the cited case amounts to taking away the absolute and exclusive jurisdiction of the Family Court which has never been the intention of the Law Makers, otherwise it would have provided for such course either expressly or by necessary implication.
The fundamental principle for construing a statute is that Court shall strive in search of that construction which would advance the cause of justice by providing relief to a party entitled to it and to suppress the mischief of denying such right on the ground of unessential technicality. Once a Tribunal of exclusive jurisdiction is established/constituted for the trial of particular cases/disputes then in the absence of express provision, its jurisdiction cannot be taken away on the ground that the matter triable by it has undergone a trivial change due to the act or omission of the party at fault. Looked at from this angle too, dower paid to the wife and snatched by the husband would automatically restore his liability to repay the same and it shall remain as a dower due to the wife, triable by the Family Court alone.
Due to the amendment introduced in the schedule to the Act, 1964 by now the disposal or in other words mis-appropriation of the wife property has been made triable by the Family Court. Judged from this aspect, one dower is paid then it becomes the property of the wife as her complete domain in established over it, therefore, the act of its snatching would amount to the disposal of her property and the Family Court alone would have jurisdiction to take cognizance for the recovery of the same.
Article 24 of the Constitution of Islamic Republic of Pakistan, 1973 in a strict commanding language has prohibited the depriving of a person of his property except in accordance with law, therefore, in our view the snatching of paid dower by a husband from his wife would constitute and amount to a felonious act punishable under the relevant provisions of the Pakistan Penal Code. Such detestable act committed by the husband shall not receive premium whatsoever from the Courts because that would encourage unscrupulous and greedy husband to indulge in this practice and to push the wife to un-ended litigation in the Civil Court for the recovery of her dower as the cases in Civil Court ordinarily consume years to conclude, therefore, it would be unfair to the wife to place her underfoot by compelling to go for legal battle of unending nature.
Under the provisions of Section 9 of the C.P.C. Civil Courts have jurisdiction to decide all matters of civil nature unless its jurisdiction is either impliedly or expressly excluded. The provision of Section 5 of the Family Court Act has conferred exclusive jurisdiction upon the Family Court in the matter of recovery of dower whether unpaid or paid but snatched/taken back by the husband. When Statutory Law itself has not drawn any distinction in this regard then Court is not supposed to introduce any change of drastic nature by taking away the jurisdiction of the Family Court vested in it which in no manner is dependent on happening of such event, therefore, in our humble opinion the view taken in Allauddin Arshad's case supra is not based on correct construction of the Statutory Law on the subject as the same may create inexplicable complication in the trial of matrimonial matters due to unforeseen eventualities and may result into multiplicity of litigation before two different forums. For instance if the paid dower is snatched by the husband, the wife in that case would be entitled not to perform her conjugal obligations and may opt for separate living. In that case she would be entitled to maintenance allowance and if she bring a suit in the Family Court for its recovery the husband may competently raise a dispute/issue regarding the jurisdiction because granting of maintenance would be subject to the decision of the Civil Court on the issue of snatched dower. The law does not provide protection or premium to the usurper or pirate but always favour the victim/the aggrieved party thus, the husband at fault cannot be treated with favour either on point of law in such case.
Learned counsel for the petitioner after extensive deliberation on the law point ultimately conceded in a fair and frank manner that the District Appeal Court has committed legal error by refusing to exercise jurisdiction vested in it with regard to the dower and for this reason the impugned judgment is not sustainable being based on incorrect view of law.
In the case of Imtiaz Ahmad vs. Ghulam Ali and 2 others (PLD 1963 SC 382) the Hon'ble Supreme Court has laid down a golden principle which is full attracted to the instant case. The operative part laying down the principle is as under:--
"The proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public police.....Any system which by giving effect to the form and not the substance defeats substantive rights (and) is defective to that extent."
For what has been discussed above, it is held that the learned District Appeal Court has failed to exercise jurisdiction vested in it, therefore, the impugned judgment and decree reversing the judgment and decree of the Family Court with regard to the recovery of dower and directing the plaintiff to have recourse to the Civil Court for its recovery is held as without lawful authority.
This petition is accordingly allowed, the impugned judgment and decree of the District Appeal Court are, therefore, set aside and it is directed to decide the entire case/appeal on merits. Being an old case on the original side, the appeal shall be decided positively within two months.
Petition allowed with no orders as to costs.
(Waseem Iqbal Butt) Petition allowed.
PLJ 2006 Peshawar 248
Present: Shah Jehan Khan Yousafzai & Raj Muhammad Khan, JJ.
GOVT. OF NWFP etc.--Petitioners
versus
M. SHAH KHISRO etc.--Respondents
W.P. No. 924 and 1074 of 2002, decided on 26.4.2006.
(i) DIR & SWAT (Devolution & Distribution of Property & Settlement of Disputes of Immovable Property) Amendment Order, 1980--
----S. 5(c) r/w MLR 122 & 123--Constitution of Pakistan, 1973, Art. 199--Federal Government was granted power of review by Federal Land Commission--Merger of Dir State into territory of Pakistan--Removal of Ruler--Cognizance of matter--Claiming disputed property an ancestral property--Determination of question was arises as to which was state property and personal property of Ex-State Ruler--Promulgation of MLRs 122 and 123 of 1972 to hold inquiry in the cases of Ex-ruler, tenant, landlord and tenant as well claimants owners and Ex-ruler--Disputed land was alleged to be in possession of ex-ruler as his personal property--Matter was inquired by the Federal Land Commission that disputed property was the personal property of Ex-Nawab of the State--Undisputedly, the subject matter claimed by the Respondent/Plaintiff before Federal Land Commission and could not be substantiate through any evidence, oral or documentary--Under the normal course of adjudication of disputes, if claimant fails to establish his claim, it shall be dismissed in favour of the opposite party--Held: Matter was falling within/purview of MLR 123 instead of 122--Commission declared the disputed property in favour of state merely because neither of the parties to the proceedings could establish their title and thus the disputed land was declared state property which was obviously against the norms of administration of justice and beyond the jurisdiction of Commission. [P. 256] A & B
(ii) DIR & SWAT (Devolution & Distribution of Property & Settlement of Disputes of Immovable Property) Amendment Order, 1980--
----S. 5(c)--Merger of Dir State into testimony of Pakistan--Original claimant--Non-maintenance of proper record by the state functionaries or ex-ruler of states--Inquiry by the Federal Land Commission--Property in-question was personal property of the ex-Nawab of State Dir--Determination--Claimants did not approach the review, tribunal constituted for reviewing the orders passed by FLC and likewise, no Constitutional petition was filed by them if there was no other remedy available for redressal of their grievance, it means that they had been left with no grievance and abandoned their claim on the disputed land. [P. 257] C
(iii) Constitution of Pakistan, 1973--
----Art. 199--Land Property in Dir Swat State--Determination of status--Personal property or state property--Examination of matter by the Inquiry Committee and then decision upon the question of fact by the Federal Land Commission--Review petition--Maintainability--Petition for revision of the order of commission by the High Court under Art. 199--Jurisdiction--Held: Disputed question of fact is beyond the scope of Art. 199 of Constitution and High Court can not upset and substitute the finding recorded by competent forum regarding disputed question of fact--Resultantly implementation of FLC order was directed and petition dismissed. [Pp. 257 & 258] D & E
Mr. S. Asif Shah, Atif Ali Khan, Advocates & Arbab Usman, AAG for Petitioners.
Qazi M. Jamil, M. Alam & Mazullah Barkandi, Advocates for Respondents.
Date of hearing : 13.4.2006.
Judgment
Shah Jehan Khan Yousafzai, J.--Writ Petition No. 924 of 2002 and Writ Petition No. 1074/2002 involving the same legal question and having arisen from the same impugned judgment dated 6.5.2002 are being disposed of by this single judgment.
M.L.R. 122.
"3. The Provincial Government, on the basis of the recommendations of the Commission and subject to any directive given by the Federal Government shall, by order notified in the official Gazette, determine--
(a) what property is State property of the former States of Dir and Swat respectively;
(b) what property is private or personal property of the late Nawab Sir Shehjehan Khan, Ex-Ruler of the former State of Dir, and the late Sir Abdul Wadud Mian Gul Sahibzada, K.B.E., Badshah Sahib of the former State of Swat respectively;
(c) the respective shares of the various heirs of the aforesaid, two ex-Rulers in their personal or private property."
M.L.R. 123.
"3. (1) All disputes relating to the ownership of, or any right or interest in, any immovable property in the former states of Dir and Swat to which any of the following persons are parties; shall be decided by the Provincial Government or an officer authorized by it in this behalf, namely:--
(a) the tenants and ex-Rulers of the said former States or their respective heirs; or
(b) claimant landlords and the ex-Rulers of the said former States or their respective heirs; or
(c) the landlords and tenants."
The Government of NWFP was not satisfied with the judgment and questioned the same through Writ Petition No. 87 of 1991 which was ultimately accepted through judgment dated 8.11.2001 and the matter was once again remanded back to the Federal Land Commission for decision afresh after compliance of directions contained in the previous order of this Court dated 27.12.1989. After 10.12.1974 no proceeding whatsoever were carried on by the original claimants before the Commission and no petitioners in Writ Petition No. 1074/2002 and final order of the Chairman Federal Land Commission dated 10.12.1974 has attained finality qua them. This time the Federal Land Commission constituted an Inquiry Commission for recording evidence of the parties as directed by this Court in the order ibid. The inquiry commission held its enquiry at Timargara District Dir where the disputed property is situated and not only the parties to the writ petition (as directed) but the previous claimants/land owners Malik Amirzada and others were also served with a notice to produce evidence if any. The previous claimants once again appeared on the screen after more than 16 years silence. The Inquiry Commission recommended in favour of Muhammad Shah Khisro Khan Respondent No. 1 and the Member Federal Land Commission accepted the report of the Inquiry Commission vide judgment dated 6.5.2002 which has been impugned in both the writ petitions in hand.
So far as Writ Petition No. 1074/2002 is concerned suffice it to say that the then claimant Malik Amirzada etc. after failing to get relief from the Inquiry Commission did not further agitate the matter before any forum and thus by their conduct they were estopped to challenge the impugned judgment passed by the Member Federal Land Commission. In the remand order of this Court it was specifically mentioned that opportunity of adducing evidence to the contestants in the writ petition be afforded and not to any other claimant. The successors of claimants/land owners in case No. 153-DCR were summoned by the Inquiry Commission only for the purpose of obtaining evidence for determination of the question under consideration of the commission and by so summoning they cannot be allowed to revive the already closed and conclusive matter since 10.12.1974. The claimants/land owners in 153-DCR could not establish their claim uptil the final forum of Federal Land Commission and they while accepting the same did not agitate any more their title upon the disputed land. In these circumstances, we found Writ Petition No. 1074 of 2002 not maintainable because the petitioners therein cannot be termed as aggrieved persons for the purpose of Article 199 of the Constitution being estopped by their conduct.
We heard the learned private counsel for the Provincial Government who contended that the concurrent findings of the Commission were upset through the impugned judgment without any cogent reasons. Respondent No. 1 has filed to substantiate his title over the suit land through any sale-deed and the evidence of the Provincial Government was discarded for no reason.
On the other hand learned counsel for Respondent No. 1 while refuting the contention of the counsel for petitioner contended that disputed questions of fact cannot be resolved through a constitutional petition and the only question for determination by this Court is as to whether the Federal Land Commission vide its impugned judgment has or has not complied with the order/directions of this Court. After remand the Federal Land Commission enquired about the controversy between the parties and the Inquiry Officers recorded evidence of the litigating parties and also the previous claimants/land owners and the report submitted by the Inquiry Officer is based on the evidence recorded during the enquiry.
This case has got a very chequered history. In the defunct State of Dir no proper record was maintained by the State functionaries or the ex-ruler of the State. In these circumstances when the State was merged as a District of Pakistan a necessity was felt to determine that which property was State property and which property was the personal property of ex-ruler of State. For this purpose MLR-122 of 1972 was promulgated. Simultaneously there was also hue and cry of the people of the area that they were deprived of their properties by the ex-ruler and at the same time there were chronic landlord-tenant disputes. The State armed forces were also given lands as remuneration for their services and it was not cleared that which land was given to the persons of armed forces as the State property and which of the property belong to the person of ex-ruler was under the tenancy of various government functionaries or other inhabitants of the area. To meet all these issues the government promulgated MLR-123 of 1972 whereunder a commission was constituted to hold an enquiry in the cases between the ex-ruler and the tenant, landlord and tenant and claimants owners and the ex-ruler.
Malik Amirzada, Khan Malik, Gul Roz Khan, Zrawar Khan Malik and Gulmula Khan Malik predecessors of petitioners in W.P. No. 1074/2002 approached the Commission with an application against the ex-Nawab of Dir claiming title of an orchard measuring 80 Satta (local scale of land measurement) situated in Timargara forcibly snatched and possessed by the ex-ruler. The disputed property was described through boundaries as follows:--
Towards north market and Bazar Timargara, towards south adjacent property of Abdullah Khan, Malik, towards east adjacent public road and towards west adjacent property of Azim Khan etc.
Petitioners in the connected Writ Petition No. 1074/2002 are the successors of Gul Roz Khan, Zrawar Khan Malik, Gulmula Khan Malik and Khan Malik while the successors of Malik Amirzada have not joined hands with the petitioners. The Commission recorded joint statement of the claimants on 23.1.1968 stating therein that about 33 years back the ex-Nawab of Dir namely Shah Jehan Khan had purchased 40 Satta of Orchard on payment of consideration but subsequently he forcibly took over possession of their remaining 40 Satta of the land, amalgamated with his purchased property and promised to pay its price to them but he backed out of the promise and no price was paid to them. Thus they claimed possession of the 40 Satta of the disputed land alongwith profit. In rebuttal the representative of Respondent No. 1 denied the claim of aforesaid claimant-owners and pleaded to have purchased the same on payment of consideration from the personal pocket of ex-Ruler but he expressed his inability to produce any documentary record in this behalf. The disputed land was alleged to be in the possession of ex-Ruler as his personal property. After recording this much evidence the APA recommended that the claim of Malik Amirzada etc. is old and may if approved be rejected as time barred. Based on the said recommendation it was ordered that the matter is 30 years old and the plaintiff could not produce any proof, declared the disputed property as State property and rejected the claim of Malik Amirzada etc. claimants vide order dated 4.1.1969. The Provincial Government published in the official gazette order dated 15.9.1972 through Notification No. 10/16-SOTA-11/72-1520 holding the properties mentioned in column II of the appended schedule as State properties. The disputed property is mentioned at Serial No. 87 showing it to be 40 Satta of land at Timargara subject matter of Case No. 153-DCR. The report of the Commission regarding Dir part was published through Volume-II wherein the recommendation of the Inquiry Commission as noted above was published in the 5th column of the appended schedule. The then Deputy Commissioner Dir declared the disputed property as State property on the basis of recommendation of the Commission vide order dated 21.10.1972. Two revisions were filed before the Federal Land Commission, one by Malik Amirzada etc. and the other by ex-Nawab Muhammad Shah Khisro Khan and both the revision petitions were dismissed through judgment dated 10.12.1974.
"Since we are of the view that an obvious injustice had been done and the case had not been decided on the basis of any evidence, we are constrained to declare the orders impugned in this writ petition as without lawful authority and of no legal effect. The case shall go back to the Chairman FLC (Respondent No.1) for deciding the case afresh after providing full opportunity to the petitioner and the State to establish their claim of leading such evidence as they may wish to produce. The necessary enquiry into the disputed question shall be conducted by Respondent No. 1 or it may be entrusted to some suitable subordinate officer for the purpose."
"Consequently the writ petition is accepted, the impugned order dated 27.12.1989 is set aside and the Federal Land Commission is once again directed to decide the case afresh strictly in accordance with the directions given by this Court in Writ Petition No. 394/81 decided on 22.2.1988. The matter being very old the decision shall be given within six months."
Member Federal Land Commission vide order dated 26.1.2002, appointed the Registrar FLC and Assistant Legal Adviser FLC as Enquiry Officers who visited Timargara, District Dir on Ist and 2nd March, 2002 and held an enquiry in accordance with the direction of this Court through judgment dated 8.11.2001. The parties litigating and the previous claimants Malik Amirzada etc. were issued notices to appear before the Enquiry Officers in the office of District Officer Revenue Timargara and to produce evidence in support of their claims, obviously for resolution of controversy between Provincial Government and the ex-Ruler only who were parties to the writ petition. The Provincial Government produced Tehsildar at Timargara and Executive District Officer Agricultural Department Dir at Timargara while the other contestant party Muhammad Shah Khisro Khan produced Fazli Malik, Advocate counsel for the legal heirs of Muhammad Shah Khisro Khan, Bahadur Khan Attorney of the said legal heirs and Toti Rehman, Moharrir record clerk of Nawab family while the ex-claimants produced Syed Kifayat Yar as their counsel and Muhammad Ajbar Khan, Yousaf Khan, Behramand Khan and Dilawar Khan were produced as their witnesses. The Tehsildar Timargara produced application of the claimant land owners dated 3.8.1967 and their joint statement dated 23.1.1968 with a note of the APA dated 24.1.1968 discussed in the preceding paras. He also produced report of the Commission dated 19.11.1970 in the case of Malik Amirzada and others vs. Late Nawab Shah Jehan Khan. He also produced a letter dated 9.9.1961 issued by the then Nawab of Dir directing Tehsildar to hand over the disputed land to Agricultural Department for development of nursery. Also produced a Letter No. 15428-29/Rev./Lease dated 18.12.1976 from Deputy Commissioner to E.A.D.A. stating therein that 20 Satta of orchard land at Timargara directing him to provide copy of lease agreement between the ex-Nawab and the Agricultural Department for the establishment of nurseries as the land has been decided in favour of State by the Federal Land Commission. Also directed to pay the future lease money to Tehsildar Timargara for onward depositing in the Government treasury. He also produced the auction record of fruit and lease of the orchard from 1977 to 1984 in order to show that the disputed land was merged by the State in the given period. Vide letter dated 31.1.1979 the Agricultural Department relinquished the lease and vacated the disputed property.
The evidence relied upon by the successors of ex-ruler are in the shape of sale-deed dated 5.12.1989 whereby Nawab Muhammad Shah Khisro Khan sold away the adjacent property in the shape of rest house to the District Council Dir. The agreement dated 8.4.1985 whereby the ex-Nawab sold the adjacent property to Dr. Inayatul Haq. Letter dated 9.9.1961 by the ex-Nawab directing Tehsildar Timargara to hand over the disputed land to the Agricultural Department for the construction of Fruit Nursery. From 21 to 23.9.1961 the disputed garden was handed over to Agricultural Department. A letter dated 14.4.1962 written by ex-Nawab of Dir addressed to Tehsildar Timargara to show that the disputed land was clarified to be private property of Nawab and its produce shall go to the ex-Nawab. The Tehsildar was directed to help the Agricultural Department in the development of garden. The Field Assistant Agricultural Department addressed a letter dated 19.2.1968 to the personal Kardar of ex-Nawab Dir highlighting the plantation of trees etc. Record pertaining to auction process of the fruit and maintenance of the garden from 1968 to 1976 from the office of Agricultural Department was also produced. The ex-ruler produced the cash book of the ex-Nawab from 1963 to 1976 indicating that the income of the garden was received by the ex-Nawab from the Agricultural Department in the given period. For the construction of General Bus Stand and shops on the disputed property during the pendency of the interim stay order by this Court an agreement dated 21.8.1984 was executed and signed by the attorney of Ex-Nawab and the Deputy Commissioner on behalf of the Government of NWFP. Apart from this documentary evidence, nine persons were produced in the witness box to substantiate the claim of ex-Nawab over the disputed land as private property.
Excluding the successors of Malik Amirzada one of the claimants one male issue of other claimant owners recorded their joint statement with no support of any document or any other oral evidence.
The two Enquiry Officers after holding a thorough discussion on the evidence led by the litigating parties i.e. the Provincial Government and ex-Nawab respondent reported that the disputed property is the personal property of ex-Nawab and by giving such report it was also mentioned that the heirs of original claimants Malik Amirzada have deposed in favour of ex-Nawab of Dir by abandoning their claim. The findings of the Enquiry Officers were given effect through the impugned judgment.
Undisputedly the subject matter of dispute was claimed by Malik Amirzada etc. before the Commission and they could not substantiate their claim through any evidence either oral or documentary and under the normal course of adjudication of disputes if a claimant fails to establish his claim the claim shall be dismissed in favour of the opposite party. In view of the application of Malik Amirzada etc. claimants against the ex-Nawab of Dir it can be safely held that the matter was falling within the purview of MLR-123 and it was not the subject matter of enquiry under MLR-122. The Commission declared the disputed property in favour of the State merely because neither of the parties to the proceedings in 153-DCR could establish their title and thus the disputed land was declared state property which is obviously against the norms of administration of justice and it was beyond the jurisdiction of Commission constituted under MLR-123 of 1972.
While remanding the matter to the Chairman Federal Land Commission by this Court through order dated 22.2.1988 it was specifically directed that after affording opportunity of adducing evidence to the petitioner (Muhammad Shah Khisro Khan) and the State (petitioner herein) to establish their respective claim of title upon the disputed land. There was no mention that the original claimants Malik Amirzada etc. who had abandoned their claim by not pursuing their right upon the disputed land after the decision by the FLC dated 10.12.1974. Pertinent to mention here that even those claimants did not approach the review Tribunal constituted for reviewing the orders passed by FLC and likewise no constitutional petition was filed by them if there was no other remedy available to them for the redressal of their grievance meaning thereby that they had been left with no grievance and abandoned their claim on the disputed land. Undisputedly the original claimants land owners had passed away when the matter was enquired into by the two officers of the Federal Land Commission.
Gul Sherinzada and Hazirzada sons of Malik Amirzada the original claimants in 153-DCR stated before the Enquiry Officers that their father had died on 9.11.2001 at the age of more than 100 years and the disputed land was sold to ex-Nawab Shah Jehan Khan at the rate of Rs. 500/- per Satta and from his pocket he planted fruit trees on it. There were suspecting that their excess land apart from the purchased land has also been amalgamated in the purchased land and they filed a claim before the Commission but subsequently they abandoned their claim, if some of their property has in fact been taken over by the ex-Nawab they had abandoned their claim. The ex-Nawab is the original owner of the disputed orchard, which was established from his personal money so that its usufruct could be utilized by the guests. Rehmatullah Jan an aged man of 70/71 years has also deposed that the disputed land was purchased by the ex-Nawab Shah Jehan Khan from its original owners, Maliks of village Timargara and different fruit plants were planted in it. He had worked in the disputed orchard as personal gardener of the ex-Nawab. The ex-Nawab Shah Jehan Khan had granted this land to his son Muhammad Shah Khisro Khan while his other sons were granted land in Haya Serai and Jandool as their share in the inheritance. Aaqil Muhammad, Noshad Malik, Fazli Manan Khan, Motabar Khan and Said Ismail Bacha all aged persons of more than 65/70 years have deposed before the Enquiry officers that the disputed land is the personal property of Muhammad Shah Khisro Khan and on his death it has devolved upon his legal heirs.
In the wake of the aforesaid discussion we are of the firm opinion that the Member Federal Land Commission has rightly followed the directions/observations of this Court while delivering the impugned judgment. The disputed question of fact is beyond the scope of Article 199 of the Constitution of Pakistan and we cannot upset and substitute the finding recorded by the competent forum regarding disputed question of fact.
Resultantly both the writ petitions are found liable to dismissal, thus dismissed with no order as to costs. The local administration is directed to give effect to the impugned order dated 6.5.2002 passed by Member, Federal Land Commission in R.P.3 (760)/FLC/2001 without any delay.
(Sh. Zulfiqar Ahmad) Petitions dismissed
PLJ 2006 Peshawar 258 (DB)
Present: Tariq Parvez Khan & Salim Khan, JJ.
MUHAMMAD ZAFRAN--Petitioner
versus
GOVT. OF NWFP through SECRETARY HEALTH DEPARTMENT CIVIL SECRETARIAT, PESHAWAR & 5 others--Respondents
W.P. No. 2012 of 2005, decided on 23.2.2006.
(i) Constitution of Pakistan, 1973--
----Art. 199--Locus poenitentiae--Petitioners applied for admission in medical college--Deficiencies in application forms--Authorities asked petitioners that they might cover up the deficiencies--Held: Principle of locus poenitentiae would not apply to the case of the petitioners but instead it is again to the benefit of the already admitted students--Further held: Principle would have been applicable if to cover up the delay and deficiency, it was held out to the petitioners by the Govt. and not by any other authority. [P. 264] D
(ii) Educational Institution--
----Prospectus for NWFP Medical/Dental Colleges--Petitioners applied for admission on reserved seats for students who were daughters/children of overseas Pakistanis--Application forms were not completed as per direction given in prospectus--Admission refused--Assailed--Validity--Prospectus and the schedule given there under were approved by Provincial Government--If authority asked any of the candidate to fulfill the deficiency such extension of time would be against the schedule as given in the prospectus and prospectus shall prevail against any concession--Incomplete application forms are liable to rejection shall be deemed that if any candidates had not filed his application form before stipulated date should be taken rejected as incomplete--Applications forms were incomplete by the due date they could neither have been called for interview nor admitted--Petitions dismissed accordingly. [P. 264] A, B, C, E & F
Mr. Muhammad Ali, Advocate for Petitioner.
Mr. Waseem-ud-Din Khattak, Advocate for Respondents.
Date of hearing : 14.2.2006.
Judgment
Tariq Parvez Khan, C.J.--Through this single judgment, we propose to dispose of following writ petitions, namely, W.P. No. 212/2005 (Muhammad Zafran vs. Govt. of NWFP & others), W.P. No. 2013/2005 (Seema Shaheen vs. Govt. of NWFP & others), W.P. No. 2019/2005 (Madiha Iftikhar vs. Govt. of NWFP & others) and W.P. No. 2049/2005 (Rabiha Nazir vs. Govt. of NWFP & others) as the question of law which requires determination in the above referred Constitutional petitions is identical/similar.
Before starting with the legal controversy involved in the case it is appropriate to give certain relevant facts.
For admission to Medical Colleges in the Province of North West Frontier, 10 seats were reserved for female students who were daughters of Overseas Pakistanis in Girls Campus of Khyber Medical College, Peshawar. There are three other seats reserved for the children of Overseas Pakistanis (both male and female inclusive) in Khyber Medical College, Peshawar and Ayub Medical College, Abbottabad. Later three seats are to be filled on Federal Quota.
W.P. No. 2012/2005.
The name of the petitioner was placed at S. No. 4 of the Combined Merit. List of the children of the Overseas Pakistanis.
On 20.10.2005, the petitioner received a letter from the Office of Joint Admission Committee of Medical Colleges pointing out deficiencies in his admission form. i.e. Remittance Card and OPF Membership Card were not annexed therewith.
However, petitioner thereafter arranged to prepare such documents from the office of Respondent No. 5 (wrongly recorded in the petition as Respondent No. 4) whereafter petitioner appeared in the interview on 8th December, 2005 alongwith original deficient documents.
W.P. No. 2013/2005.
She, however, received a letter dated 20.10.2005, wherein deficiency was pointed out in her application form i.e. it was not accompanied by Remittance Card of her father and OPF Membership Card.
However, she appeared in the interview on 8th December, 2005 but was refused admission on the ground that neither Remittance Card nor OPF Membership Card were filed with the application as required by the Prospectus.
W.P. No. 2019/2005.
On 8th December, 2005 she appeared for interview but was refused admission for non-compliance of requirement of Prospectus i.e. deficiency of two Cards mentioned above.
W. P. No. 2049/2005
Petitioner Rabiha Nazir applied for reserved seats from the quota of Overseas Pakistanis comprising of 10 seats reserved for daughters of Overseas Pakistanis of NWFP and additional three seats out of Federal category both for male and female for Overseas Pakistanis of NWFP. She was selected throughout including the interview and on 8th December, 2005, she was directed to deposit the admission fee but on the date fixed she was refused admission without assigning her any reason.
We asked for the comments of the respondents to know that on what grounds she was refused admission, it was replied that according to the Prospectus for the Session 2005-2006, the date for submission of application forms for admission against all the seats, was from 11-10.2005 to 22-10-2005. The petitioner was required to submit her application alongwith relevant documents as mentioned in the Prospectus. Having failed to file or produce the required documents within the stipulated time i.e. before 21.10.2005, she was refused admission. The deficiency in her case was that OPF Membership Card produced was issued on 8.9.2000 which was valid for 5 years and has expired on 8.9.2005.
In case of Muhammad Zafran, it appears that OPF Membership Card was issued to his father, namely, Munawar Khan on 29.10.2005 whereas last date for filing application was 22.10.2005 (see Annexure-A with the writ petition of Muhammad Zafran).
In case of Seema Shaheen, same is the position as OPF Membership Card issued in the name of her father, namely Dr. Muhammad Naeem was issued on 29.10.2005 i.e. beyond the last date for filing of application forms.
In case of Madiha Iftikhar, from the documents attached with writ petition Annexure-D and Annexure-K, it stands proved that by 22.10.2005 neither OPF Membership Card nor Remittance Card were filed with the application forms because Annexure-D is letter dated 15.11.2005 by Deputy Director, Education Division, Overseas Pakistanis Foundation addressed to Chairperson, Joint Admission Committee of Khyber Medical College, Peshawar. It was followed by an application by father of the petitioner dated 8.12.2005 (Annexure-K) which again shows that the required documents were procured and filed later on.
In case of Rabina Nazir, we checked the original record. The photo copy of OPF Membership Card filed with the writ petition shows the issuance date as 29.8.2005, but one filed with the application form had already expired. If a valid OPF Membership Card was in possession of the petitioner, we fail to understand as to why she filed expired card with her application form.
Above is the factual position of the four petitioners. The question for determination now is that notwithstanding the fact that each of the petitioners has applied for admission against reserved seats for Overseas Pakistanis but at the time of filing of application forms, there were deficiencies in their application forms which were though removed but after due date.
The contention of the learned counsel for the petitioners is that by the fact that each of the petitioners was asked to fulfill the deficiencies by 21.11.2005, therefore, once they have fulfilled the deficiencies before the date fixed and completed all the requisite documents within the time having been extended for them, they had earned vested right to be admitted to the medical colleges as their merit position was higher than the girls/boys admitted against the reserved seats.
It is next argued that once it is held out to the petitioners that they are to remove the deficiencies and they were called for the interview then respondents could not have withdrawn decisive steps taken by the petitioners towards their admission.
It is argued that if any of the respondents has violated the time schedule by allowing the petitioners to file required documents, for their failure, the petitioners should not suffer.
Learned counsel argued that instead of going by technicalities, rule of merit should have prevailed because each of the petitioners has scored more marks than the admitted students.
It is argued that even if in some cases, the date of issuance of OPF Membership Card was beyond the date for filing application forms, it was not controverted that parents of the petitioners were Overseas Pakistanis and were entitled to ask for OPF Membership Cards. If they could not manage to have it before filing of application forms, it does not mean that they were not Overseas Pakistanis because status as such has been acquired by them, only deficiency was that they were not equipped with OPF Membership Cards which was a mere formality.
Learned counsel representing the respondent/Joint Admission Committee argued that for each academic year, Prospectus with Application Forms containing required qualification and eligibility is published by the Joint Admission Committee with the approval of the Provincial Government. States that Prospectus prepared by the Provincial Government for a particular year cannot be altered/amended or any change brought therein by any authority other than the Provincial Government. He submits that complete schedule is given for each year commencing from the date on which Prospectus would be issued, the date until which the Application Forms can be filed, the date of interview, entry test, the scrutiny, the publication of provisional list of the candidates qualifying. He submits that the Schedule if not followed strictly, would frustrate the age limit as required in the Prospectus.
He referred to Page-17 of the Prospectus for the Session 2005-2006 whereunder maximum age limit of the candidate is 25 years and that shall be reckoned on the closing date of the receipt of application forms for admission.
He referred to Page-21, heading "Warnings" Para-2 of the Prospectus which states "Incomplete application forms will be rejected".
States that the above warning followed by rejection of incomplete application forms is mandatory as it is a penalty.
Mr. Abdul Latif Afridi and Mr. Yahya Afridi, Advocates, appearing though on notice for some of the respondents and Mr. Waseemuddin Khattak, Advocate, appearing for Joint Admission Committee and others have taken notice of these petitions and we have heard these petitions after they accepted the notice of these writ petition.
To regulate admission of Professional Colleges including Medical Colleges all over the country and in our Province too, Prospectus for the Session is published and issued. For the Session in question, we have before us Prospectus for NWFP Medical/Dental Colleges, Session 2005-2006. In its first Chapter appearing at Page-8 is the Admission Policy, General Policy and Important Notes. It states that the Prospectus is approved by the Government of NWFP and that any addition or deletion on account of typographical mistake is permissible by the Government but amendment during the admission process will not be made.
Under the same Heading Para-5 contains that all the candidates and students are required to read, know and abide by the Rules and Regulations mentioned in this Prospectus. Ignorance of Rules and Regulations is no excuse.
Page-11 of the prospectus describes eligibility for applying against different categories of seats followed by different headings, like Open Merit Seats, NWFP Backward Areas seats etc. At page-13 Para-VI, seats are allocated for the daughters of Overseas Pakistanis of NWFP/FATA origin at Girls Campus KMC, Hayatabad.
Here we may clarify that for Overseas Pakistanis of NWFP, there are two types of seats, total 13 in number, out of which 10 are reserved on the Provincial quota basis for admission to MBBS Girls Campus while remaining three seats are reserved on Federal quota basis for Overseas Pakistanis of NWFP both for male and female.
Under the Prospectus, for candidates applying for either of the seats mentioned above, candidate's father/mother must have a valid OPF Membership Card and Foreign Exchange Remittance Card.
Further requirement is given at Page-14 of the Prospectus under Para-IV i.e. candidates seeking admission against the seats reserved for the children of Overseas Pakistanis of NWFP domicile must fulfill the requirement laid down by Government of Pakistan, Ministry of Labour and Manpower.
It is provided at Page-19 Para-VI that candidates seeking admission for reserved seats for Overseas Pakistanis in the NWFP Medical and Dental Colleges, shall apply to the Ministry of Labour, Manpower and Overseas Pakistanis.
At Page-20 documents required with application forms have been given. Beside others, at S. No. X it is required that a copy of parent's valid OPF Membership Card and Foreign Exchange Remittance Card in case of candidate applying against Overseas Pakistani's Seats be filed. This is followed by page-21 heading "Warnings", Sub-para 2 of which states that incomplete application forms will be rejected.
We go back to Page-11 o the Prospectus describing eligibility for applying against different categories of seats where Para-2 contains that "Selection under each category of seat shall be done on the basis of inter se merit amongst those who have applied and are eligible for admission". Its Para-3 again warns the candidates that while applying for any category of seat, they must study the admission policy very carefully and then apply accordingly.
In view of different provisions of Prospectus as we have highlighted above, it is crystal clear that Prospectus and the Schedule given thereunder are approved by the Provincial Government.
Any authority other than the Provincial Government cannot go beyond the Schedule and even if at any stage any person/authority has asked any of the candidates to fulfill the deficiency as were pointed out in case of the present petitioners, such extension of time would be against the Schedule as given in the Prospectus and Prospectus shall prevail against any concession.
Where Prospectus itself provides that incomplete application forms are liable to rejection, it shall be taken as such and it shall be deemed that if any of the candidates on or before the date fixed for filing of application forms, has not filed complete forms, his application form was and should be taken as rejected as incomplete.
The principle of locus poenitentiae that some authorities have held out to the petitioners that they may cover up the deficiencies, would not apply to the case of the petitioners but instead it is again to the benefit of the already admitted students. The Principle of Locus ponetentiae would have been applicable if to cover up the delay and deficiency, it was held out to the petitioners by the Government and not by any other authority.
As we have given the deficiencies in the opening Paragraphs of this consolidated judgment qua each of the petitioners and as their application forms were incomplete by the due date/last date i.e. 22.10.2005, they could neither have been called for interview nor admitted. We do not find any force in these petitions which are accordingly dismissed.
(Sh. Zulfiqar Ahmad) Petitions dismissed
PLJ 2006 Peshawar 265 (DB) [Abbottabad Bench]
Present: Salim Khan & Hamid Farooq Durrani, JJ.
SHAFQATULLAH and others--Petitioners
versus
COLLECTOR and others--Respondents
W.P. No. 49 of 2005 & 20 other W.Ps, decided on 31.5.2006.
Constitution of Pakistan, 1973--
----Arts. 189 & 201--Question of law or enunciate a principle of law--Executive and Judicial authorities--Applicable conditions--It decides a question of law or is based upon or enunciates principle of law shall be binding on all Courts subordinate to it--Three conditions for binding status of a decision of Supreme Court or High Court are that such a decision has decided a question of law or is based upon a principle of law or has enunciated a principle of law--Held: No law in Pakistan is enforceable and applicable in form other than one in which it is interpreted by Supreme Court or High Court--Such Courts are the highest Courts of law in State, each and every judicial decision of these Courts is covered by one or other of three conditions and has a binding force. [P. 279] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 48--Limitation Act (IX of 1908), Arts. 162, 173 & 181--Limitation--Interpretation of--Original jurisdiction--Application for executing review judgment by High Court--Section 48 of Civil Procedure Code, provides a period for presentation of application for executing the decree--Art. 162 provides that petition for review of judgment by High Court in exercise of its original jurisdiction would by 20 days--Art. 173 provides 90 days period for review of judgment from the date of decree or order--Held: Art. 181 of Constitution of Pakistan, provides a period of three years when right to apply accrues for the purposes of application for which no period of limitation has been provided elsewhere in Schedule or by S. 48 of Civil Procedure Code. [P. 280] B
Limitation Act, 1908 (IX of 1908)--
----Art. 181--Civil Procedure Code (V of 1908), S. 48--Land Acquisition Act (I of 1894), S. 18--Limitation--Fresh cause of action on announcement of decree--Entitlement of benefits of decrees--Validity--Petitioners were not decree-holders and have no right to file execution petitions on basis of such decree--But the decree which has enhanced compensation generally takes original award merged and gave it form of fresh award from date of such decree--Land owners who may be able to prove similarly placed with decree-holder including land--Owners who received original compensation without protest or have not filed appeals assume fresh cause of action protest or have not filed appeals assume fresh cause of action on announcement of such decree--Held: Petitioner lost time in litigation due to non clarity of law regarding their cases--Period of ninety days from the date of announcement of the judgment was allowed and condoned the delay--Order accordingly. [P. 280] C
Mr. Muhammad Shehriyar, Advocate for Petitioners.
Mr. Muhammad Ullah Khan, Sh. Jan-e-Alam, Advocate for Respondents.
Date of hearing : 31.5.2006.
Judgment
Salim Khan, J.--This judgment will dispose of the below mentioned 21 writ petitions as the broad facts, the applicable laws, and the main legal questions involved in them are common. These have arisen out of the awards for lands of the same area, and the petitioners of these writ petitions are demanding the same benefits which have been granted to the parties (appellants or respondents) of other objection petitions/appeals coming out of the same awards. The main facts leading to the filing of execution petitions by the present petitioners, their dismissal their filing appeals, and, after withdrawing the appeals against the orders of the Executing Court, their filing the present writ petitions, are that some lands were acquired in the area of Mauza Kotnajibullah of District Haripur vide Awards Nos. 2, 3, 7, 8. Then R.F.A. No. 3 of 1992 titled `Sarhad Development Authority Versus Sardar Fakhr-e-Alam and others' R.F.A. No. 9/1992, R.F.S. No. 11/1992, R.F.As. 24 of 1992, 25 of 1992, 56 of 1992, 64 of 1992, 77 of 1992, and 81 of 1992, were filed when the objection petitions of land owners, other than the petitioners of these writ petitions, were decided. The matter then went to the august Supreme Court of Pakistan, and, vide judgment and order dated 23.1.2001, the august Supreme Court of Pakistan dismissed the Appeals Nos. 1449 to 1460 of 1999. A review petition was also submitted but the same was also dismissed by the august Supreme Court. It is contended that F.A.Os. Nos. 7 to 10 of 2003 were also decided on 13.5.2004 where compulsory acquisition charges at the rate of 15% under Section 23(2) of the Land Acquisition Act and simple interest at the rate of 6% were allowed.
Then the petitioners filed their respective execution petitions. The learned Reference Court/Presiding Officer Executing Court dealt with these execution petitions, first the mind was given that the execution petitions on the basis of decree in favour of other persons, specially in R.F.A. No. 25 of 1992 and R.F.A. No. 56 of 1992, were executable and the petitioners were to get benefit of the decisions given in favour of other land owners, on the ground that the petitioners were similarly placed persons and were entitled to the same benefits to which the others were declared entitled. But then the learned Presiding Officer of the Executing Court, vide his judgments and orders, impugned in these writ petitions, dismissed the execution petitions. The petitioners of different writ petitions before us filed their respective first appeals against orders, but, after discussion in the Court, they were constrained to withdraw the appeals and to file writ petitions. Hence the present writ petitions before us.
The individual exclusive facts of each of these writ petitions are given as below:--
(i) W.P. No. 49/2005 `Shafqatullah and others vs. Collector and others'. The land of the petitioners was acquired, alongwith the lands of other owners, vide Award No. 2 dated 22.6.1988. Faqir Muhammad, predecessor-in-interest of the petitioners filed, objection petition which was dismissed vide judgment and decree dated 13.5.1992 of the learned District Judge/Referee Judge, Haripur. No further appeal was filed by the petitioners or their predecessor-in-interest. On the basis of decrees in R.F.As. Nos. 3 of 1991, 56 of 1992, 64 of 1992, 77 of 1997, and 81 of 1992, Faqir Muhammad filed execution Petition No. 6/10 before the Executing Court, where it was decided that the execution petition was not maintainable, because no decree was passed in favour of the petitioners. It was contended by the petitioners that execution Petition No. 8/10 (Sardar Shaukat vs. Collector) showed that the objection was only with regard to the amount assessed by the decree holder in Goshwara and the learned Executing Court had directed the respondents for deposit of decretal amount. The petitioners further referred to the case of Gulab Khan vs. Collector and contended that the order of the learned Executing Court was incorrect, where it was held that there was no decree in favour of Gulab Khan or the petitioner. The petition of Faqir Muhammad was dismissed on 20.9.2004. The petitioners filed appeal before this Court, which was withdrawn, and the present writ petition was filed.
(ii) W.P. No. 51/2005 `Gulab and others vs. Land Acquisition Collector Haripur and others'. The land was acquired by the Collector Haripur vide Award No. 3 dated 26.6.1988 and Award No. 7 dated 27.6.1990, the property of the present petitioners was also included in the said awards. The other main facts have been mentioned above. The petitioners had not filed any objection petition or the first or second appeal. Relying on the judgments in R.F.As. Nos. 9 of 1992, 11 of 1993 and others, the petitioners filed execution Petition No. 5/10 dated 23.6.2000 before the District Judge, Haripur/the Executing Court. Their petition was first accepted, on 16.3.2000 and the respondents were directed to make the payment to the petitioners, but, lateron, the learned Addl; District Judge, Haripur the Executing Court dismissed the petition vide his order dated 28.10.2004 on the ground that there was no decree in favour of the petitioners, and the Executing Court did not have authority to execute the prayer without any decree.
(iii) W.P No. 97 of 2005 `Qazi Muhammad Afzal and others vs. Collector and others'. Certain lands were acquired vide Award No. 2 dated 22.6.1988. The petitioners had not filed any objection petition. The ground of the petitioners is that Petitioners Nos. 1 to 5 were minors while Petitioner No. 6 was a Parda Nashin lady. The other facts are common as narrated above. The petitioners filed execution Petition No. 18/10 on the ground that the benefit of R.F.A. No. 25 of 1992 dated 3.2.1999 and No. 56 dated 4.2.1999 be extended to the petitioners/land owners. The said petition was dismissed vide judgment and order dated 20.9.2004. The petitioners filed appeal which was allowed to be withdrawn, hence, the present writ petition.
(iv) W.P. No. 98/2005 `Qazi Shafahat Ahmad and others v. Collector and others'. The petitioners contended that certain land in Kotnajibullah, including the land of the petitioners, was acquired vide Award No. 2 dated 22.6.1988. The petitioners filed objection Petition No. 9/4 alongwith other Petitions Nos. 4/4, 34/4, 35/4 and 38/4 against the said award but those were dismissed on 25.4.1992. The petitioners did not file any appeal while the others continued with the litigation upto the august Supreme Court of Pakistan, where decision was given in Civil Appeals Nos. 1449 to 1460 of 1999. FAO Nos. 7 to 10 of 2003 were also decided on 13.5.2004, whereby compulsory acquisition charges at the rate of 15% and interest at the rate of 6% were allowed. The petitioners filed Execution Petition No. 19/10 on the ground that they were entitled to the benefit of judgments/decrees in RFA. Nos. 25 of 1992 and 56 of 1992. But, the learned Executing Court dismissed the execution petition on 20.9.2004, on the ground that there was no decree in favour of the petitioners. An appeal was filed, which was withdrawn by the petitioners, and the present writ petition was filed.
(v) W.P. No. 114/2005 `Abdur Rehman and others vs. Collector and others'. The petitioners contended that certain land in Kotnajibullah, including the land of the petitioners, was acquired vide Award No. 2 dated 22.6.1988. The petitioners filed objection Petition No. 3/4 alongwith other petitioners which was dismissed on 28.3.1992. The petitioners did not file any appeal while the litigation of other land owners continued upto the august Supreme Court of Pakistan, where final judgment was given in C.P. Nos. 1449 to 1460 of 1999. The petitioners claimed benefit of judgment in R.F.A. No. 25 of 1992 and No. 56 of 1992. But the learned Executing Court dismissed the Execution Petition No. 10 of 2002 of the present petitioners on the ground that there was no decree in their favour. They filed appeal before this Court, which was withdrawn, and the present writ petition was filed.
(vi) W.P. No. 115/2005 `Mst. Janat Khatoon and others vs. Collector and others'. The petitioners contended that their lands, alongwith the other lands, situated in Kotnajibullah were acquired vide Award No. 2 dated 22.6.1988, and that the objection petition of the present petitioners was dismissed on 5.9.1992, but the petitioners did not file any appeal against the same. They were of the view that the benefit of judgments in R.F.A.No. 25 of 1992 and No. 56 of 1992 was extendable to them, hence, they filed execution petition/Application No. 44/6 dated 19.6.2002. But the same was dismissed vide order dated 20.9.2004. The appeal filed by the petitioners through F.A.O. No. 13 of 2005 was withdrawn, and the present with petition was filed.
(vii) W.P. No. 116/2006 `Sardar Muhammad Bakhsh and others V. Collector and others. The petitioners contended that their land, alongwith the land of others, was acquired vide Award No. 8 dated 27.6.1990, that the petitioners filed Objection Petition No. 16/4, which was dismissed on 27.6.1993, but the petitioners did not file any appeal. They contended that the benefit of R.F.A. No.74 of 1993 was extendable to them, hence, they filed execution petition/Application No. 52/6 which was dismissed on 20.9.2004. The petitioners filed F.A.O. No. 13 of 2005 which was withdrawn, and the present writ petition was filed.
(viii) W.P. No. 117/2005 `Mian Dad and others vs. Collector and others'. The petitioners were of the view that their land, alongwith the land of other landowners, was acquired vide Award No. 2 of 1988. The objection Petitions Nos. 5/4, 11/4 and 30/4 alongwith other petitions against the same award were dismissed. The petitioners did not file any appeal. The cases of other land owners went upto the august Supreme Court of Pakistan, where judgment was granted in Civil Appeal Nos. 1449 to 1460 of 1999 (judgment reported as PLD 2001 SC 405). The petitioners filed execution Petition No. 4/10 on the strength of R.F.A. No. 25 of 1992 and No. 56 of 1992, claiming the benefit of decrees in the said cases. The execution Petition No. 4/10, however, was dismissed on 20.9.2004, the appeal was withdrawn by the petitioners, and the present writ petition was filed.
(ix) W.P. No. 118/2005 `Abdul Malik and others vs. Collector and others. The petitioners contended that their lands, alongwith the lands of other co-owners, situated in Kotnajibullah were acquired vide Award No. 2 of 1988, that objection Petition No. 12/4 was filed by the petitioners but, on its dismissal, the petitioners did not file any appeal, however, the other landowners and the respondents went upto the august Supreme Court of Pakistan where final judgment was granted as aforementioned. The petitioners filed objection Petition No. 7/10 on the strength of R.F.A. No. 25 of 1992 and No. 56 of 1992. But the execution petition was dismissed on 20.9.2004. the petitioners first filed appeal, which was withdrawn by them, and the present writ petition was filed.
(x) W.P. No. 130/2005 `Gohar Rehman and others vs. Collector and others'. The petitioners referred to Award No. 2 of 1998 regarding their lands, their objection Petition No. 36/4 which was dismissed, the litigation of the other land owners, the execution Petition No. 14/10 of the petitioners, their appeal and its withdrawal, and the filing of the present writ petition. The other facts of the case are the same as mentioned for the other above mentioned cases.
(xi) W.P.No. 131 of 2005 Sardar Muhammad Nawaz and others v. Collector and others.' 23 kanals land in Khasra No. 4773 in Kotnajibullah owned by the petitioners was acquired by the Collector Land Acquisition vide Award No. 2 dated 22.6.1988. The petitioners did not file any objection petition while the other landowners litigated as mentioned above, while giving detailed facts. The petitioners filed execution Petition No. 13/10 dated 12.12.2002 claiming the benefit of R.F.A. No. 56 of 1992. The same was rejected by the Addl: District Judge/Executing Court vide judgment and order dated 20.9.2004. The petitioners filed appeal, but this Court allowed the petitioners to withdraw the same, and they filed the present writ petition.
(xii) W.P. No. 132/2005 `Makkan vs. Collector and others'. The only difference between the present writ petition is that the objection petition filed by him was shown as No. 3/4 and the execution petition as No. 7/10. The other facts of this writ petition are similar with the other cases.
(xiii) W.P. No. 133/2005 `Ghulam Sarwar and others vs. Collector and others'. The award number of the petitioners is No. 3 of 1998. The petitioners did not file any objection petition or appeal. The submitted execution Petition No. 10/10 on the strength of judgment and decree in R.F.A. No. 24 of 1992 dated 4.2.1979. But their execution petition was dismissed, their appeal was withdrawn, and they filed the present writ petition.
(xiv) W.P. No. 134/2005 `Muhammad Shafi v. Collector and others'. The petitioner contended that his land was acquired vide Award No. 3 of 1988. He filed objection Petition No. 3/4 of 1992 for land measuring 19 kanals 14 marlas in Khasra No. 2363 situated in Kotnajibullah, the objection petition was dismissed, but the petitioner did not file any appeal. He relied on the litigation of other landowners and filed execution petition/Application No. 1/6 claiming therein that he was entitled to the benefit of judgment and decree in R.F.A. No. 24 of 1992. But the execution petition was dismissed. The petitioner filed but withdrew his appeal, and filed the present writ petition.
(xv) W.P. No. 139/2005 `Miskin vs. Collector and others'. The petitioner claimed the acquisition of his land through Award No. 2 of 1988. He further contended that his objection Petition No. 34/4 was dismissed but he did not file appeal. He filed execution petition/Application No. 9/6 on the strength of R.F.A. No. 56/1994, but the same was dismissed on 20.9.2004. The appeal of the present petitioner was withdrawn by him and he filed the present writ petition.
(xvi) W.P. No. 140/2005 `Muhammad Nawaz and others vs. Collector and others'. The case of the petitioners is the same to the extent of Award No. 2 and the common details given above. His objection Petition is No. 33/4 and his execution petition/application is No. 21/6. On withdrawal of his appeal, he filed the present writ petition.
(xvii) W.P. No. 141/2005 `Muhammad Gulzar and an other vs. Collector and others'. The case of the petitioners was the same to the extent of Award No. 2, the litigation of the other land owners, but their objection petition number was 35/4 while their execution petition number was 11/6. The facts of dismissal of the same, the filing and withdrawal of appeal, and the filing of the present writ petition are the same as in other cases.
(xviii) W.P. No. 142/2005 `Sardar Muhammad Nawaz and others v. Collector and others'. 20 kanals 10 marlas land situated in Kotnajibullah, owned by the petitioners, was acquired vide Award No. 3 dated 22.6.1988 by the Collector Land Acquisition. The petitioners did not file objection petition. The other landowners continued their litigation as per detail mentioned above. The petitioners filed execution Petition No. 12/10 dated 12.12.2002, claiming the benefit of the judgment in R.F.A. No. 24 of 1992 dated 4.2.1999. That execution petition was dismissed by the learned Addl. District Judge, Haripur/Executing Court on 20.9.2000 on the ground that there was no decree in favour of the petitioners. An appeal was filed by the petitioners in this Court, which was withdrawn on 30.3.2005, and the present writ petition was filed.
(xix) W.P. No. 143/2005 `Muhammad Sadiq and others vs. Collector and others'. The objection petition of petitioners is shown as 9/4 and the number of his execution petition/application is 6/6, while the award number is 2 of 1988. The other facts till filing of the present writ petition are common with others.
(xx) W.P. No. 144/2005 `Mehboob Elahi and others vs. Collector and others'. The same is the position of the case of these petitioners, except that their objection petition number is shown as 35/4, while execution petition/application number is 12/6 of 2002.
(xxi) W.P. No. 145/2005 `Mst. Mumtaz Bibi and others vs. Collector and others'. Mst. Mumtaz Bibi and others contended that their objection petition was No. 38/4 and their execution petition was No. 14/10. The other details given by them are the same as in other writ petitions.
We heard the arguments of the learned counsel for the respective parties and perused the record. The learned counsel for the petitioners, while arguing the different writ petitions as mentioned above, referred to 1965 SC 382, PLD 1979 SC 599, PLD 1986 SC 188, PLD 1990 S.C. 361, 1996 SCMR 1185, CLC 1996 1640, 1998 SCMR 2197, 1999 SCMR 2009, PLD 1999 SC 592, PLD 2000 SC 263, 2002 SCMR 72, PLD 2005 Karachi 164 and 2006 SCMR 688 in support of their arguments. The learned counsel for the respondents, on the other side, referred to PLD 1965 SC 37, PLD 1976 Lahore 15, PLD 1976 Karachi 793, PLD 1977 SC 599, 1997 SCMR 1692, PLD 1999 S.C. 250, 2005 MLD 768 and 2005 MLD 1140 in support of their arguments.
The basic questions, which were taken up by the learned counsel for the parties, were argued at the initial stage, which are that whether the writ petition was maintainable in the circumstances of the cases in hand, whether third party could be impleaded in execution proceedings and whether question of compensation could be decided in a writ petition. The learned counsel for the respondents relied on 1995 CLC 548, PLD 1997 A.J.K. 33, 2000 YLR 2016, 1996 MLD 1399 and 2005 MLD 768. The present petitioners had filed appeals against the judgments and orders of the learned Presiding Officer of the Executing Court, but the same were withdrawn, after discussion in the Court. Some of the counsel for the petitioners contended that the petitioners were advised by the Court during the arguments that they should withdraw the appeal and file writ petitions. They further contended that the act or order of the Court could not prejudice a party.
In fact, the appeals were against the judgments and orders of the Presiding Officer of the Executing Court, and the discussion hereinafter will reveal that the fate of those appeals would be dismissal. The reason for the same is that, as to be clarified lateron, it was to be seen whether the Executing Court could go beyond and behind the decree and could add parties to the execution petitions, who were not parties to the main cases, in which the decrees before the Presiding Officer of the Executing Court for the execution were passed. The writ petition has its own peculiarities. The Court can direct a person to do something which he is required by law to do, or to avoid doing something which is prohibited by law. The filing of writ petitions in the circumstances of these cases, was the proper course. The Court cannot decide the question of compensation and cannot enhance the compensation while dealing with a writ petition. But, the Court can direct the concerned persons or authorities dealing with the fixation and enhancement of compensation, in the light of Article 199 of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as `the Constitution'), to act in accordance with law and to avoid acts not permitted by law. Such persons or authorities shall, in consequence of a decision in a writ petition, have to take up proceedings for proper fixation or proper enhancement of the compensation and for the related matters.
While dealing with the provisions of Order XLI Rule 33 read with sub-section (2) of Section 107 of the Code of Civil Procedure, 1908 (hereinafter referred to as `the Code'), or with the provisions regarding execution, the proposition whether a third party can or cannot be impleaded in execution proceedings, alongwith the question whether a party who received compensation without protest, and did not file objection petition, can claim enhancement in compensation will be discussed. The question whether the judgments in land acquisition cases are judgments in personam and are not judgments in rem and whether a party filing reference only can gt benefit of the decree will also be discussed. The learned counsel for the parties discussed in detail the relevant provisions of law regarding execution proceedings.
Section 38 and Order XXI of the Code deal with execution of decrees. Section 38 provides that a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. Order XXI prescribes the mode, manner, processes and proceedings regarding execution of a decree. Rule 10 of the above said Order provides that where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or, if the decree has been sent under the provisions of Rules 5 to 9 of the said Order to another Court, then to such Court or to proper officer thereof. Sub-rule (2) of Rule 11 of the Order provides that save as otherwise provided in the case of a decree for the payment of money where the immediate execution thereof has been asked for by the arrest of the judgment-debtor, every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the particulars as mentioned therein. It means that the execution proceeding shall be initiated on a written application on prescribed form.
The word `decree' has been defined in Section 2(2) of the said Code which means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint, the determination of any question within Section 144, and an order under Rules 60, 98, 99, 101 or 103 of Order XXI but shall not include, (a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
It is explained that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. The decree is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.
The word decree-holder', according to Section 2(3) of the Code, means any person in whose favour a decree has been passed or an order capable of execution has been made. The wordjudgment-debtor', according to Section 2(10) of the Code, means any person against whom a decree has been passed or an order capable of execution has been made. Section 26 of the Land Acquisition Act, 1894 (I of 1894) provides that every award shall be in writing, signed by the
Judge, and shall specify the amount awarded as mentioned therein, alongwith the grounds of awarding each of the above said amounts. It further provides that every such award shall be deemed to be a decree and the statement of the grounds of every such award to be a judgment with the meaning of Section 2 of the Code.
An Executing Court, therefore, must have an application in writing as prescribed by Rules 10 and 11 of Order XXI of the Code before it in order to execute a decree, formally expressed by the Court, conclusively determining the right of the parties. A third party, not party to the proceedings of the suit or appeal in which decree has been passed, is not, and cannot be made, a party to the execution proceedings. A person, who has a cause of action, only can move a Court of law to initiate legal proceedings. A landowner, who receives the awarded compensation without a protest, relinquishes his right to claim enhancement of compensation, and stands estopped by his own conduct. He loses his cause of action, and cannot, at a later stage, ask for the enhancement of compensation of his lands. An Executing Court being corum non judice has no power and authority to go beyond or behind the decree, and has to remain within the limits prescribed by the decree in respect of the rights and liabilities of the parties. Such a Court has no power or authority to make any modification, change, deletion, alteration, insertion or addition in a decree. The parties before such Executing Court, for the purposes of the execution of a decree before it, are the decree holder and the judgment debtor only, except the object who may come forward during the proceedings for the purposes of execution of a decree and who may object to certain processes or proceedings by that Court concerning certain property or person regarding whom such objector has his own claims. No other person can be joined, as a party to such proceedings by the Executing Court.
The Land Acquisition Act, 1894 (hereinafter referred to as `the Act'), has its own complete concept, scheme and system for the acquisition of lands etc, for the processes and proceedings regarding acquisition, for the decision of disputes regarding the same, and for other related matters. The Said Act presupposes that the Provincial Government has the first right to use the lands situated within the limits of the Province, and the governing authority of the area, were there is no Provincial Government, in the light of the provisions and the contents of General Clauses Act and the Constitution, has the first right to use the land within that area. This Act supposes that the land owners in such areas are only the owners of the right to use the lands, but subject to the superior right of ownership of the Provincial Government or, as the case may be, the governing authority of the area.
Keeping in view this concept, Section 4 of the Act provides that wherever it appears to the Provincial Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to this effect shall be published in the official gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. The publication of such notification is the basis for further proceedings of acquisition of land. Award is then prepared which shall become final and conclusive evidence of the true area and value of the land and the apportionment of the compensation money to the persons interested in the said land. The Collector has to give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.
Part-III, including Section 18 of the Act, deals with reference of the Court and procedure thereon. Section 18 provides that any person, who has not accepted the award, may by written application to the Collector require the matter to be referred by the Collector for the determination of the Court whether his objection be to the measurement of the land, the amount of compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. It is provided there that the applicants shall state the grounds on which objection to the award is taken, and if the person making it was present or presented before the Collector at the time when he made his award, such application shall be made by such person within six weeks from the date of Collector's award and in other cases, within six weeks of the receipt of the notice from the Collector under Section 12(2) of the Act, or within six months from the date of Collector's award, whichever period shall first expire. The Provincial Government has also been authorized to file objection petition as a person has been authorized as mentioned above.
Section 53 of the said Act provides that the provisions of the Code shall apply to all the proceedings before the Court under the said Act, save in so far as they may be inconsistent with anything contained in the Act. It has been provided in Section 54 of the Act that, subject to the provisions of the Code applicable to appeals from the original decrees, and notwithstanding anything to the contrary in the enactments for the time being in force, an appeal shall only lie in any proceedings under the Act to the High Court from the award or from any part of the award of the Court, and, from a decree of High Court passed on such appeal as aforesaid appeal shall lie to the Supreme Court, subject to the provisions contained in Section 110 of the Code and in Order XLV thereof. No revision is allowed under the provisions of the above said Act and the scope of the appeal has also been clearly prescribed as mentioned above.
Section 107 of the Code deals with provisions relating the appeals and provides that subject to such condition and limitation as may be prescribed an Appellate Court shall ahve power:-
(a) to determine a case finally;
(b) to remand the case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
Subs-section (2) of Section 107 provides that subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearly as may be, the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein.
An appeal to Court is like a complaint filed to the appellate Court with the allegations that the applicant has not been treated in accordance with law by the Court of original jurisdiction, or that an illegality or material irregularity, or mis-exercise or non-exercise of jurisdiction has been committed in his case. The appellate Court is required to check the whole record in the light of such complaint/(appeal) and is to see whether the jurisdiction was properly exercised, whether the evidence was properly read and whether the law and rules were properly applied in the circumstances of the case before the Court.
Order XLI Rule 33 of the Code mentions the powers of the Court of Appeal to the effect that the appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. The words respondents or parties' are significant and important for the purposes of the abovesaid Rule 33. The Court has the jurisdiction and power to exercise the power to pass any decree and make any order as mentioned above in favour of all the respondents, or in favour of any of the respondents, or in favour of all the parties or in favour of any of the appellants. The wordparty' for the purposes of legal proceedings means a person litigating on one side with certain claim or pleas, or a person litigating on the other side with opposing pleas or claims. Generally a plaintiff, an applicant, a petitioner, a complainant, or an appellant is one party while the defendant, the respondent or the accused is another party for the purposes of litigation in cases.
The word parties' include the persons on both the sides, including the complainant as well as the accused, the plaintiff as well as the defendant, the applicant/petitioner as well as the respondent, and the appellant as well as the respondent. The wordappellant' means the person who has gone on appeal against a decree or order of a Court to the appellate Court, while the word
respondent' means the person who is expected to respond, or does respond, to the application/complaint/petition/suit/appeal. The wordrespondents' as mentioned in the above referred Rule 33 of Order XLI means the persons who are expected to respond, or they do respond, to the appeal while appellant as well as respondent are included in the word `parties. No stranger to the proceedings before the appellate Court is included in the above mentioned words and no one can claim that an order or decree has been passed in his favour or against him, if he is not either the appellant or the respondent in the case, or as per requirements of the circumstances, he should have been a party as a proper or necessary party to the proceedings but was not joined as such, and a decree or order adverse to his interest has been passed, which has aggrieved him. In the light of the above, the appellate Court has the power to grant decree or order only in favour of all or some of the respondents or the parties, and have no power to grant such decree or order in favour of, or, even against the persons who are strangers to the proceedings before it. A person who filed reference or a person who was a respondent or party on an appeal can, therefore, claim the benefit of a decree passed in such proceeding. The persons, whose cases were not before the Court for adjudication, therefore, do not have any right to claim enhancement of compensation, through the executing petitions, on the basis of the decree passed as aforesaid.
Article 4 of the Constitution provides that to enjoy the protection of law and to be treated in accordance with law is inalienable right of every citizen wherever he may be, and of every other person for the time being within Pakistan, and in particular, no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law. No person shall be prevented from or be hindered in doing that which is not prohibited by law, and no person shall be compelled to do that which the law does not require him to do.
Article 23 of the Constitution provides that every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan subject to the Constitution and any responsible restriction as imposed by law in the public interest. The provisions of Article 25 of the Constitution are that `All citizens are equal before law and are entitled to equal protection of law..........................'. Hence, all persons similarly placed have equal rights and when certain rights are declared available to one or more of such persons, all the other persons similarly placed with them stand declared entitled to such rights. It will be sheer discrimination if such persons are denied equal rights, and will be contravention of the provisions of Article 25.
Article 189 of the Constitution provides that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan, while Article 190 thereof provides that all Executive and Judicial authorities throughout Pakistan shall act in aid of the Supreme Court. Article 201 of the Constitution provides that, subject to Article 189, any decision of a High Court, to the extent that it decides a question of law or is based upon or enunciates a principle of law, shall be binding on all Courts subordinate to it. The three conditions for the binding status of a decision of the Supreme Court of Pakistan or a High Court are that such a decision (i) has decided a question of law, or (ii) is based upon a principle of law, or (iii) has enunciated a principle of law. No law in Pakistan is enforceable and applicable in the form other than the one in which it is interpreted by the Supreme Court or a High Court. These Courts are the highest Courts of law in the State, each and every judicial decision of these Courts is covered by one or the other of the above mentioned three conditions, and hence, has a binding force.
Ordinarily judgments in Land Acquisition Cases, like many other cases, are judgments in personam when the rights and liabilities of the parties thereof are only decided in accordance with law. But, when either a law is interpreted, or a principle of law is expounded, or certain facts are generally declared covered by some law or by some principle of law, justice or equity, these judgments, to the extent of the above, become judgments in rem also. When either the classification of the land or the value of the land acquired is generally changed, such judgments assume the status of judgments in rem, because certain facts are generally declared covered by some law, and all the similarly placed persons become entitled to the benefit of the same.
The State, the Governments and the authorities and bodies under them, being the protectors of the rights of citizens, are duty bound to ensure that not only such rights remain protected but are also provided to the citizens.
Section 18 of the Act provides the highest period of six months to a party/interested person to whom a notice has not been issued by the Collector. Section 48 of the Code provides a period for presentation of an application for executing the decree. Article 162 of the second schedule of the Limitation Act provides that a petition for review of judgment by a High Court in the exercise of its original jurisdiction would be 20 days. Article 173 of the same schedule provides 90 days period for a review of judgment, except in the cases provided in Article 161 and Article 162, from the date of the decree or order. Article 181, however, provides a period of three years when the right to apply accrues for the purposes of applications for which no period of limitation has been provided elsewhere in the schedule or by Section 48 of the Code.
The cases of the petitioners neither fall under Section 18 of the Land Acquisition Act nor under Section 48 of the Code nor under any other article of the Limitation Act as no period has been provided therein. In fact, the eventuality, arising out of the decisions in cases in which either the nature and classification of the property under award has been generally changed by the Court or in which awarded compensation has generally been enhanced or fixed, had not been visualized. In the circumstances of the cases in hand, the provisions of Article 181 mentioned above would be applicable. The original award merges into decision/decree in such cases, and amounts to fresh announcement of the award in its modified form.
In the light of the above discussions, we hold that the petitioners, being strangers, and not respondents or parties, to the appeals mentioned above are not directly entitled to the benefits of the decrees in such appeals, unless there prove themselves similarly placed with the persons in whose favour such decrees have been granted. The petitioners, therefore, are not the decree-holders and have no right to file execution petitions on the basis of such decrees. But, as the decree which has enhanced the compensation generally takes the original award merged in itself and gives it the form of a fresh award from the date of such decree, the landowners, who may be able to prove themselves similarly placed with the decree-holders, including those landowners who received the original compensation without protest or have not filed appeals, assume fresh cause of action on the announcement of such decrees. They may, therefore, file objections to the Collector, in the cases of those landowners who had not filed objection petitions originally, or file review petitions to the learned Referee Judge, in the cases of those landowners whose objection petitions were dismissed but they had not filed appeal and were not respondents in the appeals of other landowners affected by the same award. The provisions of Article 181 of the Schedule of the Limitation Act, 1894 shall be applicable in their cases.
In the circumstances that the petitioners lost time in litigation or otherwise due to non-clarity of the law regarding their cases, we condone the delay in their cases, and we allow them a further period of ninety days from the date of announcement of this judgment to file objection petitions or, as the case may be, to file review petitions as aforesaid. We also direct the concerned Collector and the learned Presiding Officer of Court for the land acquisition cases to deal with the objection petitions/review petitions, as duly filed fresh petitions, under the law, and to decide them according to their respective merits.
(T.S. Faisal) Case remanded
PLJ 2006 Peshawar 281 (DB)
Present : Tariq Pervez Khan, C.J. and Muhammad Qaim Jan Khan, J.
AHMAD HASSAN KHAN--Petitioner
versus
MUHAMMAD RASOOL KHAN and 3 others--Respondents
W.P. No. 1783 of 2005, decided on 20.6.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 17--N.W.F.P. Local Government (Conduct of Election) Rules, 2005, R. 67(4)--Constitution of Pakistan, (1973)--Art. 199--Election for office of Nazim and Naib-Nazim--Application for amending writ petition--Permission was allowed to file an application for amendment--Validity--High Court has only allowed withdrawal of writ petition on request of petitioner and where a division bench has allowed permission to file an application for amendment in a pending writ petition, it would not mean that amendment in pending writ petition was also allowed--C.M. was dismissed. [P. 286] A
(ii) N.W.F.P. Local Government (Conduct of Elections) Rules, 2005--
----Rr. 30(6) (ii) & 35 (4) (iii) (b)(c)--Constitution of Pakistan, 1973 Art. 199--Election for the office of Zila Nazim--Both Petitioners secured equal votes--Ballot paper in-question though carries two stamps, one in the column of name and other in column/space for symbol--Such ballot paper does not contain any writing nor it contains any marks other than official mark--It does not have any piece of paper attached nor any other object of any kind--No exception could be taken where a voter has affixed two stamps though it was required to be affixed only in one space--Object and scheme of rules would be that unless there is same invalidity which can be pointed out towards a ballot paper, but as long it does not disclose identity of voter and as long secrecy is maintained--No exception would be taken to such ballot paper and it would be accepted as valid--Object was not to disfranchise an elector/voter of a very valuable right on mere technicalities which were not visited with any consequential penalties--Crux of the matter would be that as long intention of elector cannot be disputed and he has clearly affixed rubber stamp showing his exercise of right of franchise in favour of a particular candidate, his such choice should be respected and be accepted--Ballot paper containing two stamps, one in column of name and other in column of symbol, was valid and validly counted in petitioner, favour--As for secured ballot paper where rubber stamp was affixed not on symbol but in the space of name and it was excluded from count, was also held to be a valid ballot paper--Petition allowed. [Pp. 288 & 289] B & C
Mr. Aamir Javeed, Advocate for Petitioner.
Mr. Muzammil Khan, Advocate & Mr. Gul Akbar Khan, Provincial Deputy Election Commissioner of N.W.F.P. for Respondents.
Date of hearing : 20.6.2006.
Judgment
Tariq Parvez Khan, C.J.--This single judgment can dispose of Writ Petition No. 1783/05 (Ahmad Hassan vs. Muhammad Rasool and others) and Writ Petition No. 1737/05 (Muhammad Rasool vs. Returning Officers and others) as both are in respect of Election to the office of Nazim and Naib-Nazim District Dir Lower.
However, one vote was objected to by Muhammad Rasool/his agent which was counted towards Ahmad Hassan but the objection was over ruled by the Returning Officer.
Results were consolidated by the Returning Officer on 10.10.2005 and during consolidation he, out of the total, excluded five objected votes, two were such which were in favour of Ahmad Hassan and three were counted in favour of Muhammad Rasool. Besides above, one vote of the petitioner Ahmad Hassan was rejected by the Returning Officer after he solicited opinion from the Provincial Election Commissioner. As mentioned above, each of the contesting candidates have initially secured 201 votes. Three votes were excluded from the count of Muhammad Rasool and two from the count of Ahmad Hassan, therefore, apparently Ahmad Hassan was leading by one vote.
The vote which was sent for opinion to Provincial Election Commissioner was excluded, thus both the rivals stood equal again.
The vote which was excluded from count of Ahmad Hassan on opinion of Provincial Election Commissioner is objected to on the ground that the rubber stamp is affixed not in the column of symbol but in the column where name of Ahmad Hassan appears.
We have heard the learned counsel for the parties at sufficient length and on a previous date had sent for all the ballot papers, their seals were duly opened in presence of counsel for the parties, parties and their agents. We found that five votes in total have been excluded from the count from both the petitioners whereas one ballot paper where rubber stamp is affixed not in the symbol column but in the column where name of Ahmad Hassan appears, was excluded from count.
Learned counsel appearing for Muhammad Rasool has vehemently challenged the ballot paper which contains rubber stamp both in column of name and in column of symbol. He has referred to Rule 30(6)(ii) of NWFP Local Government (Conduct of Elections) Rules, 2005 (hereinafter referred to as Rules).
We would reproduce the relevant portions of the Rule which reads as under:--
"30. Voting procedure.--(1) Where an elector presents himself at the polling station to vote, he shall show his national identity card to the Presiding Officer, who shall after satisfying himself about the identity of the elector, issue him ballot papers:
(6) The elector, on receiving the ballot paper or ballot papers, shall--
(i) ------------------------------------------
(ii) put the marking aid rubber stamp on the ballot paper at place within the space containing the symbol of contesting candidates of his choice; and"
He has also taken us to Rule 35 and in particular to Sub-rule (4)(iii) (b)(c) and (d) which reads as under:--
"35. Proceedings at the close of the poll.--
(4) The Presiding Officer shall--
(iii) count the votes cast in favour of each contesting candidate excluding from the count the ballot papers which bear--
(b) any writing or any mark other than the official mark and the mark of "marking aid rubber stamp" or to which a piece of paper or any other object of any kind has been attached;
(c) no mark of "marking aid rubber stamp" indicating the contesting candidate for whom the elector has voted; or
(d) any mark from which it is not clear for whom the elector has voted:
Provided that a ballot paper shall be deemed to have been marked in favour of a candidate if the whole or more than half of the area of the mark of "marking aid rubber stamp" appears clearly within the space containing the symbol of that candidate; and"
Learned counsel has also referred to the proviso to Rule 35 and states that in proviso too it is re-agitated that the rubber stamp shall clearly appear within the space containing the symbol. Learned counsel has cited number of judgments including 1994 SCMR 1637 and 2240, 1993 SCMR 573 and 1993 SCMR 2289. His contention is that where identity of elector can be disclosed or can be ascertained such ballot paper should be taken out of consideration and out of count. His further submission is that where rules prescribed that rubber stamp be affixed in the column of symbol that should be followed strictly, otherwise it would be violation of Rules and in particular violation of Rule 35(4) (4)(iii)(b).
"Wants to withdraw the instant writ petition with permission to file an application for amendment in Writ Petition No. 1737/05. Allowed. Dismissed as withdrawn."
It is argued by learned counsel for Muhammad Rasool petitioner that he has been allowed to amend the writ petition by adding challenge to three votes excluded at the time of consolidation and such amendment would be within the purview of Order 6, Rule 17 CPC and also in consonance with Rule 67(4) of the Local Government Ordinance where Tribunal may at any time allow a petition to be amended. He has relied on PLD 1995 SC 345, PLD 1992 SC 30 and page 180, PLD 1991 Peshawar 117.
The application for amendment was independently heard and we find that principles of Order 6, Rule 17 CPC are not applicable to the proceedings but there is an independent Rule No. 67(4) of the Rules which empowers the Election Tribunal that it may at any time and upon such terms and on payment of such cost as it may direct, allow a petition to be amended as in such a manner which in its opinion, be necessary for fair and effective trial and for determining the real question in controversy but the Tribunal is debarred not to allow amendment by raising new found of Challenge to the election. Application for a amendment before us unambiguously and decisively is in respect of three challenged votes which have been excluded from count from the votes of Muhammad Rasool.
Challenge to the votes is made at the time when the elector gets the ballot paper to which the Presiding Officer records the challenge. Therefore, it was well in the knowledge of Muhammad Rasool that he has challenged three votes at the time of poll. In his writ petition as originally filed he has not raised the plea that three challenged votes have been wrongly excluded from him. It is, therefore, an independently and totally new ground which cannot be permitted under the principles of CPC and the same would not be permissible even for the Election Tribunal under Rule 67 (4) of the Rules.
Contention of counsel for petitioner Muhammad Rasool that he withdrew Writ Petition No. 1911/05 where he has challenged the order of the Returning Officer when three challenged votes were excluded from his count and the High Court permitted him to withdraw the Writ Petition and has allowed him amendment in the writ petition.
We can hardly agree with learned counsel for the petitioner because as we have reproduced the order of withdrawal in para 7 above. Its clear interpretation is that petitioner herein wanted to withdraw his writ petition with permission to file an application for amendment in Writ Petition No. 1737/05 which is presently subjudice before us.
The Hon'ble Division Bench allowed the withdrawal and also allowed the permission to file an application for amendment. Not that the amendment itself was allowed. Where the High Court has only allowed withdrawal of the writ petition on request of counsel for the petitioner and where a Division Bench has allowed permission to file an application for amendment in a pending writ petition, it would not mean that amendment in the pending writ petition was also allowed. Therefore, CM No. 651/05 is dismissed.
Learned counsel appearing for petitioner Ahmad Hassan Khan argued that one vote which was counted by the Returning Officer in favour of Ahmad Hassan but was later excluded on the opinion given by Provincial Election Commissioner, has been wrongly excluded.
Meeting the arguments of learned counsel in the connected writ petition i.e. filed by Muhammad Rasool, counsel for Ahmad Hassan petitioner argued that ballot paper which carries two rubber stamps, one in the column of symbol and the other in column of name clearly indicates the intention on the part of elector which is relevant for the validity of a ballot paper. He submits that mistake, if any, committed by an elector but where his intention is obvious, his right of franchise shall not be ignored and excluded. It was argued that unless the two stamps could disclose the identity of the voter, the ballot paper would be valid and was validly counted in favour of his petitioner i.e. Ahmad Hassan Khan. It was also argued that reason for this mistake can be explained because the Electoral College for the office of Nazim and Zilla Nazim of the District comprises of Members Union Council, their Nazim and Naib Nazim and procedure for their voting was that the stamp was to be affixed in the column of the name, therefore, some of the electors might have committed this mistake.
Learned counsel has relied on PLD 2002 SC 184 where it was ruled by the apex Court that the primary purpose of a mark on a ballot paper was to ensure the intention of the voter, a mark on the ballot paper which clearly reveals the intention of the voter but without disclosing his identity, had to be accepted as valid exercise of vote. He has similarly relied on 1996 SCMR 1496, 1987 SCMR 1987 and 1983 SCMR 125.
We are conscious of the fact that all election disputes are to be taken before Election Tribunal constituted under the Election Laws but because in the instant case at present the dispute is only in respect of validity or otherwise of a very few number of ballot papers which can be determined and decided by visual observation and by interpreting the relevant provisions of the Rules. Though elections were held way-back in October 2005 but till date neither of the two rivals contesting candidates have been notified as returned candidate. At present as today, they have no matter pending before the Election Tribunal.
Since decision of these writ petitions may not prejudice the case of either of the parties which may intend to file election petition, we therefore out of abundant caution are not considering five votes which were rejected as objected to by the parties and they are left undecided.
The application filed by Muhammad Rasool for amendment of his writ petition is dismissed because he wants to challenge the decision arrived at the time of consolidation of result where three votes apparently cast in his favour but were subject to objection, were excluded from his number of votes and two objected votes were excluded from count in favour of Ahmad Hassan. We are also not undertaking any exercise to issue any direction or declaration that who shall be the returned candidate as it is for the election authorities.
Confining ourselves to two votes/ballot papers, one, which on the basis of opinion given by Provincial Election Commissioner, was taken out of the count in favour of Ahmad Hassan because it carries rubber stamp in the column of name and not in the column of symbol and the second ballot paper is where rubber stamp is affixed in both the columns i.e. in the column of name and symbol.
As for ballot paper which contains one stamp but in the column of name, we are taking guidance from the wisdom as is held by Hon'ble Supreme Court of Pakistan reported as 2004 SCMR 1899 titled (Salahuddin and another vs. Abdul Khaliq and others). It was held by the apex Court that the question of validity or otherwise of the ballot papers could only be determined by ascertaining the intention of the voters and in that respect the manner of affixing mark/stamp was material. It was ruled that if the mark or stamp was affixed upon the name of a candidate instead of his symbol, there could not be any hesitation to maintain that the voter had in fact shown his consent to cast vote in favour of the candidate. The supra judgment was delivered with reference to Baluchistan Local Government Election Rules 2000 which rules are parameteria to Rule 30 of the Rules.
Taking up the second ballot paper where at the time of consolidation of result the ballot paper was taken as valid in favour of Ahmad Hassan, we hesitate to agree with learned counsel for the petitioner Muhammad Rasool to exclude this vote because applying the principle as laid by apex Court in number of judgments, referred to above and cited by learned counsel for petitioner Ahmad Hassan, the intention of elector is not ambiguous and is very clear.
Rule 30 of the Rules requires that the voter shall put the marking aid rubber stamp within the space containing the symbol of the contesting candidate.
Under Rule 35 the Presiding Officer shall exclude such ballot papers which contain any writing or any mark other than the official mark and the mark of marking aid rubber stamp or to which a piece of paper or any other object of any kind has been attached. The wisdom behind the sub-rule of Rule 35 is that the identity of the voter is not disclosed and secrecy of the election is maintained.
We are required to interpret Rule 35 (4)(iii)(b). The ballot paper in question though carries two stamps, one in the column of name and the other in the column/space for symbol. This ballot paper does not contain any writing nor it contains any mark other than the official mark. It does not have any piece of paper attached nor any other object of any kind.
"Official mark" is not defined in the Rules but if one would go to Rule 30(2)(iii) which requires a Presiding Officer that before issuing a ballot paper it shall be stamped on the back with official mark and signed by the Presiding Officer. This clearly demonstrates that the word "official mark" appearing in Rule 35 (4)(iii)(b) is a mark which is referred to in Rule 30(2) (iii). Therefore, no exception could be taken where a voter/elector has affixed two stamps though it was required to be affixed only in one space.
Rule 29 requires election to be held by secret ballot papers. The object and the scheme of the Rules would be that unless there is some invalidity which can be pointed out towards a ballot paper but as long it does not disclose the identity of the voter and as long secrecy is maintained, no exception shall be taken to such ballot paper and it shall be accepted as valid. Object is not to disfranchise an elector/voter of a very valuable right on mere technicalities which are not visited with any consequential penalties. Like in Rule 30 nor in Rule 35 nowhere it is prescribed that if a stamp is affixed in column of name or two stamps are affixed, one in the column of symbol and the other in the column of name, such vote/ballot paper be excluded from count. The rule though requires that elector shall put stamp in space meant for symbol but it does not say that it shall not be affixed elsewhere.
The philosophy of secret ballot is that every voter shall have free right of franchise and fee right to cast his vote in favour of a candidate of his choice without any other candidate knowing as to in whose favour a particular elector has casted his vote. This is the basic norms of democracy. The crux of the matter would be that as long the intention of the elector cannot be disputed and he has clearly and unambiguously affixed rubber stamp showing his exercise of right of franchise in favour of a particular candidate, his such choice should be respected and be accepted. However, the rule of caution is that he shall exercise his right in such a manner that his identity remains undisclosed.
The consequence would be that the writ petition filed by Ahmad Hassan is allowed and the other filed by Muhammad Rasool is dismissed. Parties are, however, not burdened with any costs.
(T.S. Faisal) Order accordingly
PLJ 2006 Peshawar 290 [Abbottabad Bench]
Present: Salim Khan, J.
WAPDA through CHAIRMAN WAPDA, WAPDA HOUSE, LAHORE and 4 others--Petitioners
versus
QAZI MUHAMMAD IRSHAD and 2 others--Respondents
C.R. No. 116 of 2006, decided on 16.6.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O., XVI, Rr. 1, 7 & 14--Application for amendment of list of witnesses was turned down--Revision was accepted--Question of applicability of different rates regarding connection of electricity were involved, and serious interests of defendants were at state, while plaintiffs have claimed that the 10 house constructed by them were private residential accommodation, and these houses did not fall under the cover of commercial buildings, therefore defendants had right to prove their case through all available evidence and could request the Court to call witnesses to produce documents--Original Court had power to call persons other than those mentioned in the list of witnesses of parties, but it failed to exercise it in the interest of justice--Revision accepted.
[P. 293] A
Mr. Fazal-e-Gul Khan, Advocate for Petitioners.
Malik Manzoor Hussain, Advocate for Respondents.
Date of hearing : 16.6.2006.
Judgment
The back ground of this civil revision is that a suit was instituted by Qazi Muhammad Irshad and two others against WAPDA through Chairman and 4 others of the said Authority for declaration to the effect that plaintiffs are not liable to pay Rs. 12,65188/- as arrears regarding their property called Green Lodges, that Green Lodges are domestic accommodation, rented out to different persons for residence from time to time, and other reliefs. The suit was contested, issues were framed and statements of the witnesses and statement of Qazi Muhammad Irshad, one of the plaintiffs, was recorded, and the counsel for the plaintiffs closed the evidence except the right of the plaintiffs to produce evidence in rebuttal. Muhammad Javed Iqbal record keeper was examined as P.W. 2 who was asked about the site-plan and taxation of the 10 houses. It was not in his knowledge if any notice was served on the plaintiffs for change of taxation to commercial rate and he was not in a position to say that what was the final position of taxation approved by the Board. The defendants/petitioners before us submitted an application to the effect that Assistant Supdt. Revenue, Cantonment Board, Abbottabad be called as witness, as clerk of the Cantonment Board could not produce complete record. A request was made for amendment of the list of witnesses to this effect. This request was turned down by the learned Civil Judge, Abbottabad vide order dated 4.4.2006. Hence this revision.
During the arguments of the learned counsel of the parties and the perusal of record, the learned counsel for the petitioners referred to the statement of Muhammad Javed Iqbal, record keeper, Cantonment Board, Abbottabad, who had shown his ignorance about the notices and the final position of the taxation approved by the Board. He contended that, at the time of submission of list of witnesses, the defendants believed that the said clerk would be in a position to produce the relevant record and make proper statement regarding the site-plan, the notice as well as the final position of the approved taxation, and, therefore, they did not list any other official of the Cantonment Board as witness of the defendants. But, due to failure of the clerk named above, the defendants were constrained to submit the application to bring on record the relevant evidence and documents so that complete justice could be done to the parties.
The learned counsel for the respondents, however, contended that the defendants had a chance to ask the record keeper to bring the record which they did not ask at the proper time and, therefore, they could not avail a second chance for producing the evidence which they had failed to produce through the above named witness.
The learned counsel for the parties discussed in detail the provisions of Order XVI Rules 1,7 and 14 of the Code of Civil Procedure 1908, and the learned counsel for the petitioners relied on 1994 CLC 1920, 1995 CLC 327 and 2003 MLD 1332 while the learned counsel for the respondents relied on PLD 1980 Lahore 495 and 1999 SCMR 799. The learned counsel for the petitioners contended that the Courts are expected to allow the parties leniently to call the necessary witnesses, that the cases are expected to be decided on merits and technical knock-out is to be avoided as far as may be possible.
In order to properly appreciate the arguments on behalf of the parties, it is necessary to discuss the provisions of Rules 1, 7 and 14 of Order XVI of the Code of Civil Procedure, 1908. The parties are legally bound to present in Court a list of witnesses whom they propose to call either to give evidence or to produce document. No witness will be called by a Court if no list of witnesses in accordance with sub-rule (1) of Rule 1 mentioned above is submitted by the concerned party. It is binding on the concerned parties under the mentioned law to either produce list of witnesses to be called under the authority of the Court or deprive themselves of the evidence of such persons who names are not provided to the Court in a list. The failure of a party to provide a list of witnesses to a Court at all deprives that party of a chance to request, lateron, the Court that some persons be called as witnesses of that party. A party who does not obey the law and complies with the requirements of law is not entitled to get the support of law to the extent of his own negligence, indolence and failure.
It has clearly been provided in sub-rule (2) of Rule 1 that a party shall not be permitted to call witnesses other than those named in his list of witnesses, except with the permission of the Court, and showing good cause for the omission of the said witnesses from the said list. The submission of a list of witnesses in accordance with the provisions of sub-rule (1) of Rule 1 of Order XVI mentioned above is a condition precedent for a further request for calling other persons as witnesses with the permission of the Court. The provisions of sub-rule (2) will not be applicable at all when the condition of the above referred sub-rule (1) is not complied with. Further explanation of the two sub-rules is that the Court shall record reasons for granting permission when such permission is granted and it would check the good cause shown by the concerned party for the omission of the said witnesses from his list of witnesses.
Rule 7 of the said Order, however, empowers and authorizes the Court to require any person present in Court to give evidence or to produce any document then and there in his possession or power. This power can be used by the Court suo motu or on the application or request of a party. The provisions of Rule 7 are empowering and authorizing in nature, so that the Court may have the authority and power in order to meet the ends of justice.
Rule 14 of the said Order is applicable to a situation when such persons are not present before the Court. But, if the Court at any time thinks it necessary to examine any person other than a party to the suit and not called as a witness by a party to the suit, such a Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such document. This rule is also authorizing and powering the Court in order to enable it to do full justice in the circumstances of the case.
For the purposes of the case in hand, the provisions of Rule 7 mentioned above, are not attracted as no such person was present before the Court who was to be either required to give evidence or to produce a document. It is not the case of the parties that the Court by itself had come to the conclusion that the evidence of a person, who was not a party and was not a witness of any party to the proceedings, was necessary or it was necessary to call him to produce certain documents which were necessary for the ends of justice. The provisions of the above referred Rule 14 are also not attracted to the circumstances of this case.
It is not denied that the defendants had submitted their list of witnesses, like the plaintiffs. The plaintiffs had closed their evidence subject to claiming their right to produce evidence in rebuttal. The defendants felt the need for calling Assistant Supdt. Revenue Cantonment Board to give statement and produce relevant record, and they submitted application for the said purpose. The clerk of the Cantonment Board had appeared as P.W. and would be able to produce the record, but it was clearly admitted by him that he was not in a position to say any thing about the notice issued to the plaintiffs and about the final position of the approved taxation. As the question of applicability of different rates regarding connection of electricity are involved in this case, and serious interests of the defendants are at stake, while the plaintiffs have claimed that the 10 houses constructed by them are private residential accommodation, and these houses do not fall under the cover of commercial buildings, therefore, the defendants had the right to prove their case through all the available evidence and could request the Court to call witnesses to produce documents and make statement concerning the said 10 houses, which were constructed on the leased property of the Cantonment.
In the light of the above, we are of the opinion that the learned original Court erred in not allowing the defendants to call the Assistant Supdt. Revenue Cantonment Board, Abbottabad, alongwith the requisitioned record and make statement accordingly. The learned original Court had the power in this respect to call persons other than those mentioned in the list of witnesses of the parties, but it failed to exercise it in the interest of justice. We, therefore, accept the present civil revision, set aside the impugned order of the learned original Court dated 4.4.2006 and direct the learned original Court to call the Assistant Supdt. Revenue Cantonment Board, Abbottabad as witness of the defendants for producing the requisitioned record and make statement in respect of the same. The respondents/plaintiffs, as of right, my cross examine the said witness.
(T.S. Faisal) Revision accepted
PLJ 2006 Peshawar 294 (DB) [Abbottabad Bench]
Present: Salim Khan & Hamid Farooq Durrani, JJ.
SHAHID IQBAL--Petitioner
versus
SECRETARY TO GOVT. OF N.W.F.P. SCHOOLS & LITERACY DEPARTMENT, PESHAWAR and 3 others--Respondent
W.P. No. 62 of 2006, decided on 6.7.2006.
Constitution of Pakistan, 1973--
----Art. 199--Issuance of appointment letter--No cause of action--Assailed--Petitioner does not have any cause of action for time being and was not an aggrieved person--Even if entitled persons were not available before Court, did not lose their right which accrued to them as a consequence of judgment of Court of law due to their equality with those who were available before Court and a judgment in rim has been passed in their favour--Without any cause of action and a grievance, petitioner did not entitle to snatch rights from those persons who were not available before Court. [P. 296] A
Constitution of Pakistan, 1973--
----Art. 199--Educational institution--Extra marks would be allocated having higher qualification--Qualification of B.Ed.--Prescribed qualifications were those which were prescribed by employing authority for certain posts, without which a candidate would not be eligible, even to apply for such posts--Such qualifications are minimum qualifications for such posts--Persons of higher qualifications were not debarred from applying and contesting for the posts for which lower qualification have been prescribed--According to policy of Govt. to declare whether extra marks would be or would not be allocated to person having higher qualifications--Extra marks would be allocated to the candidates having B.A. or M.A. qualification, and extra marks were allocated to petitioner for his B.A. and M.A. qualifications--B. Ed was neither a prescribed qualification nor a higher qualification for purposes of CT posts, and consequently, respondents have not allotted any extra marks to petitioner accordingly--Petition dismissed. [Pp. 296 & 297] B
Mr. Lal Khan, Advocate for Petitioner.
D.A.G. for Respondents.
Date of hearing : 16.6.2006.
Judgment
Salim Khan, J.--The petitioner contended that he applied for a post of CT for which the prescribed qualifications were FA alongwith professional CT course, that the petitioner was declared successful and included in the list of successful candidates, that the petitioner had qualifications of MA Urdu, PTC, CT and B.Ed, that the persons appointed to the vacancies were directed to join their posts by 1.3.2005 positively otherwise their appointment shall stand cancelled and the individual next on merit will be appointed in his/her place. The petitioner contended that appointees at S. Nos. 4, 5, 6, 17 and 24 did not joint the service and their appointments stood cancelled, and the post became vacant on 1.3.2005, but the petitioner was not appointed against one of the said vacancies, inspite of the fact that he had qualified the test and interview. The copy of office order regarding the appointment of certain persons has been placed on the file as annexure B, where Condition No. 3 is recorded to the effect that the appointees should join their posts by 1.3.2005 positively otherwise the appointment shall stand cancelled and the individual next on merit will be appointed in his/her place.
Comments of Respondents Nos. 3 and 4 were obtained, wherein they mentioned that the petitioner falls at S. No. 156 with his session of 1998 and his merit score is 37.25, while candidates upto S. No. 27 with session upto 1992 were appointed against the available vacancies of CT. It was contended that the batch of the petitioner, being of 1998 was a very late batch and it was not possible to appoint the petitioner. It was further mentioned that fresh appointments were in process and the vacancies had been advertised through the press, and if the petitioner has applied for the same and comes on merit as per recruitment policy of the Government of NWFP, he will be appointed without any discrimination. The petitioner submitted rejoinder to the said contention and took up the stand that the petitioner had higher professional qualification of B.Ed. but the marks for the same were not allotted to him.
We heard the arguments of the learned counsel for the petitioner and of the Deputy Advocate General assisted by the representative of the department, and perused the record.
It is not disputed by the petitioner that his batch of CT Course was of 1998, rather this fact was admitted by the petitioner in para 4 of his petition. It has clearly been stated by the respondents that the batch of the appointed persons was upto S. No. 27 of 1992, and the batch of the petitioner was very late. This contention of the respondents could not be rebutted by the petitioner during the arguments. It was further contended that the serial number of the petitioner was 156 with session of 1998 while candidates upto S. No. 27 of 1992 have been appointed. This contention of the respondents also could not be rebutted by the petitioner. The learned counsel for the petitioner contended that the other candidates of the batches from the year 1992 to 1997, and the candidates senior to the petitioner of 1998 batch have not come forward to seek any remedy, therefore, the petitioner has a right to be appointed against one of the vacancies. The learned D.A.G. replied that the candidates of the batches mentioned above, who have not yet been appointed, did not come forward because they did not have any grievance till now for the reason that they have not been superseded, and that the petitioner also does not have a grievance and a cause of action. This contention of the learned D.A.G. is correct. The candidates of the batch of 1992 and 1993 would have a cause of action and grievance if they were not appointed on their turn, if they had qualified after test and interview and other formalities for appointment. The present petitioner does not have any cause of action for the time being and is not an aggrieved person. Further more, the entitled persons, even if they are not available before the Court, do not lose their rights which accrued to them as a consequence of a judgment of a Court of law due to their equality with those who were available before the Court and a judgment in rim has been passed in their favour. On just coming to the Court with a petition, without any cause of action and a grievance, the petitioner does not become entitled to snatch the rights from those entitled persons who are not available before the Court.
The learned counsel for the petitioner further contended that the marks for B. Ed. qualification were not granted to him, and, therefore, he was shown to have obtained less marks. The learned D.A.G., with the assistance of the representatives of the department produced the record, which was shown to the learned counsel for the petitioner and the Court, that marks for B.A. and M.A. were granted to the petitioner besides the marks for the CT. B.Ed. was never a prescribed qualification for the CT post and, therefore, was not a higher qualification for such posts. B.Ed. course is a prescribed qualification for certain other posts, but is not suitable qualification for CT posts. It may be mentioned here that PST posts are for primary school purposes, CT posts are for next higher classes, while B.Ed. is a qualification course for major students. The words "prescribed qualifications, higher qualifications, minimum qualification and maximum qualifications" were discussed. The prescribed qualifications are those which are prescribed by the employing recruiting authority for certain posts, without which a candidate would not be eligible, even, to apply for such posts. Such qualifications are minimum qualifications for such posts, According to the policy of the Government, persons of higher qualifications are not debarred from applying and contesting for the posts for which lower qualifications have been prescribed. It is according to the policy of the Government to declare whether extra marks would or would not be allocated to the person having higher qualifications. In this case, however, it was prescribed that extra marks would be allocated to the candidates having B.A. or M.A. qualifications and extra marks were allocated to the petitioner also for his B.A. and M.A. qualifications. B.Ed. was neither a prescribed qualification nor a higher qualification for the purposes of CT posts, and consequently, the respondents have not allotted any extra marks to the petitioner accordingly.
The above discussion brings us to the conclusion that the petitioner has no cause of action and is not an aggrieved person. We do not find any merit in the present writ petition and we dismiss the same accordingly.
(T.S. Faisal) Petition dismissed
PLJ 2006 Peshawar 297 (DB) [Abbottabad Bench]
Present: Salim Khan & Hamid Farooq Durrani, JJ.
MUHAMMAD IBRAR KHAN and others--Petitioners
versus
GOVERNMENT OF N.W.F.P. through SECRETARY REVENUE, PESHAWAR and others--Respondents
W.P. No. 86 of 2006 with C.M. No. 128 of 2006, heard on 16.6.2006.
Constitution of Pakistan, 1973--
----Art. 199--Entitlement to concession--Relaxation--Petitioners are not officially appointed/employed patwaris, and, therefore, are not entitled to concessions available to Patwaris who are already in active service of the Government--There was no speciality in the case of petitioners for special permission/exemption from passing through training course before examination--Petitioner's names were not appeared in the register of Patwari candidates, nor in service patwaris of Government--They fell under category of unaccepted candidates--It was discretion of Director Land Records to either allow or refuse admission to petitioners to patwar training school, and such permission could not be refused when accepted candidates and inservice patwaris were available for training according to the seats reserved for course--Petition dismissed. [Pp. 299 & 300] A & B
Mr. Q. Abdur Rasheed, DAG for Respondents.
Date of hearing : 16.6.2006.
Judgment
Salim Khan, J.--Muhammad Ibrar Khan, petitioner of W.P. No. 86 of 2006, Muhammad Nawaz petitioner of W.P. No. 142 of 2006, Akbar Mansoor petitioner of W.P. No. 38 of 2006, and Abdul Hanan of W.P. No. 39/2006 contended, through their respective writ petitions, that they were patwari apprentices/trainees with the patwaris named in their petitions and they were eligible to be trained in the Patwar Training School, and were eligible to be allowed to take examination of patwari. Muhammad Nawaz requested that the age for the training and examination declared as 25 years in his case be declared not applicable to him. Each of them also submitted an application for temporary relief. The numbers of those C.Ms. are 128/2006, 129/2006, 130/2006 and 131/2006 respectively.
It was contended through the comments of District Officer Revenue and Estate/Collector Mansehra and the Senior Member Board Revenue. NWFP, as well as the Director Land Records N.W.F.P. that the upper age limit for the candidates was 25 years, and only the candidates already in service as patwaris were eligible for training/examination as mentioned above beyond the age of 25 years. It was further contended that the petitioners were not eligible for such training and they were not recommended and approved for the training in question in accordance with law.
The learned counsel for the petitioners referred to contents of Part-II of Chapter III of the Land Record Manual which relate to the patwaris and submitted that, though the petitioners were trainees with the patwaris but, as the register of patwar candidates was not available, their names were not entered in the said register, inspite of the fact that certificates have been issued by the concerned patwaris in favour of the petitioners. The learned D.A.G., however, argued that the petitioners are unable to show that they had ever made applications for the entry of their names in the said register and a copy of such an application has never been brought on record by the petitioners.
The learned counsel for the petitioners referred to Rule 3.10 occurring in Part-III of Chapter-III mentioned above and submitted that the accepted persons, whose names appeared in the register of Patwar candidates, and the unaccepted candidates, whose names were not available in such register and who were not such accepted candidates, could also be allowed to join Patwar School with the permission of Director Land Records, though they were to be required to pay both tuition fee and examination fee, while the accepted patwaris were to pay the examination fee only. It was further contended that a person who possesses patwar experience of 5 years or more, on the recommendation of the Director, be exempted, in exceptional cases, by the Board of Revenue, from attending a Patwar School before admission to the examination. He argued that the petitioners had patwar experience of more than 5 years and they should have been exempted by the Board of Revenue from attending the patwar school before admission to the examination at this stage.
We heard the arguments of the learned counsel for the petitioners and of the learned D.A.G. in detail and perused the record.
The petitioner have been unable to show that they were enlisted candidates/accepted candidates and their names appeared in the register for patwari candidates. They may have certificates from certain patwaris but they do not have any document to the effect that they had submitted applications for the entry of their names in the register and their names appeared/entered in such a list. As such, they do not fall in the category of accepted candidates. The petitioners are not officially appointed/employed patwaris, and, therefore, are not entitled to the concessions available to the patwaris who are already in active service of the Government.
6-A. The age limit of 25 years was prescribed for permission to attend the training school and it was acted upon by the Government. The learned D.A.G. explained that a summary was moved by the Board of Revenue in which the request for relaxation of the age limit for certain persons was mentioned, but it was declared as Government policy on that summary that age of 25 years was not to be relaxed/extended in any case, in order to avoid bad precedents. The learned counsel for the petitioners contended that the age limit was not advertised, that the law regarding the same had been deleted, and the policy regarding the age limit was not a substitute for the rules. He further contended that the change regarding the age limit during the pendency of the proceedings of submission of applications for admission in the training school and their further processing could not change old position, and the old law was to continue inspite of new policy. The learned D.A.G. responded that the policy was not a new one, rather the old policy was kept intact, and the same rule, practice and policy were in vogue before the start of process of submission of applications for training, during the said process and, even, after completion of the said process. The learned D.A.G. further argued that it was not always necessary to advertise each bit and piece of rules regarding certain matter again and again, when once these were properly advertised, and it was the responsibility of the candidates to know about such advertised rules, regulations, policy matters and practices before submission of application.
6-B. The learned counsel for the petitioners further contended that the petitioners had 5 years or more experience as patwari candidates, and such candidates could be exempted from training in the patwar school before appearance in the examination. He contended that the present petitioners were eligible for such exemption, and should be exempted from training and be allowed to appear for the examination. The rule regarding the exemption itself clearly shows that such exemption is to be granted in special cases and it is the judicial discretion of the Director Land Records to recommend such persons and the Board of Revenue may grant such special exemption. The petitioners could not show any speciality of their case and could not show that they were entitled to any special treatment.
The learned counsel for the petitioners further contended that the D.L.R. was to consider each case on its merits, that the petitioners were commended by the local authorities and that special concession/exemption should have been granted to the present petitioners. It is the authority of the D.L.R. to grant special permission, for training and it is the authority of the Board of Revenue to grant special concession of the purposes of examination. It is never the right of an applicant to get such special concession/relaxation/ exemption. Generally, such concessions/relaxations/exemptions are not granted when other candidates, who do not need such concessions/ relaxations/exemptions, are available, otherwise the grant of such concessions etc. is likely to fall in the category of undue and unfair favours.
In the circumstances of this case, we do not find any speciality in the case of the petitioners or special permission/exemption from passing through the training course before examination. The petitioners were not accepted candidates as their names did not appear in the register of patwari candidates and the petitioners were not the inservice patwaris of the Government. They fell under the category of unaccepted candidates. It was the discretion of the Director Land Records to either allow or refuse admission to the petitioners to the patwar training school, and such permission could not be refused when the accepted candidates and the inservice patwaris were available for training according to the seats reserved for the course.
Finding no merit in the present writ petitions, we dismiss the same alongwith C.Ms. mentioned above.
(T.S. Faisal) Petitions dismissed
PLJ 2006 Peshawar 300
Present: Ijaz-ul-Hassan, J.
GHULAM SAMDANI and others--Petitioners
versus
FAQIR KHAN--Respondent
C.R. No. 1324 of 2005, decided on 19.5.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 31 & S. 115--Suit for grant of permanent injunction was dismissed--Appeal accepted--Assailed--There was no misreading or non-reading of any material piece of evidence, which could render the findings of appellate Court unworthy or illegal. [P. 302] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 25 & O. XX, R. 5--Requirements--It is sufficient for the Court to deal with all issues as are material for disposal of controversy excepting those abandoned by appellant--Appellate Court recording its findings on points raised before it, without discussing issues separately cannot be said to have committed any illegality or error--Revision dismissed. [P. 303] B
Mr. Muhammad Jehangir Khan, Advocate for Petitioners.
Mr. Hussain-ud-Din Khattak, Advocate for Respondent.
Date of hearing : 5.5.2006.
Judgment
Shortly narrated the facts leading to the filing of insant civil revision are, that Faqir Khan, plaintiff brought suit against Ghulam Samdani and others, defendants for a declaration-cum-permanent injunction to the effect that plaintiff is owner in suit Khasra number and also in possession to the extent of his specific share, whereas the defendants, having disposed of their shares by way of sale or construction of houses etc, have no justification to interfere with the rights of the plaintiff.
The defendants did not appear in Court and they were held ex parte vide order dated 27.4.2000 and suit was decreed as ex parte on 9.2.2001. An application was moved for setting aside ex parte decree, which was allowed. During the pendency of the suit, one Ghaus Muhammad Khan filed an application for impleadment in the suit as necessary party. The application was accepted on 29.4.2002 and amended plaint was submitted on 13.6.2002. Written statement was filed on 29.6.2002. In view of the pleadings of the parties, learned trial judge formulated as many as 10 issues. After recording such evidence as the parties wished to adduce, suit was dismissed by trial judge, vide judgment and decree dated 24.1.2004. An appeal was preferred there against, which was allowed by learned Additional District Judge, Kohat, vide judgment dated 12.7.2005. The impugned and decree was set aside and a preliminary decree for partition of suit property was passed in favour of the plaintiff against the defendant. Ghulam Samdani and his brother Ghaus Muhammad Khan petitioners, feeling aggrieved have filed instant civil revision, challenging the impugned judgment and decree dated 12.7.2005.
The prime contention of Mr. Muhammad Jehangir Khan, Advocate learned counsel for the petitioners is that the impugned judgment and decree is laconic and suffers from the vice of misreading and non-reading of evidence, hence resulting in erroneous conclusions. The learned counsel maintained that appellate Court failed to exercise its jurisdiction properly and in accordance with law and reversed a detailed and well reasoned judgment of trial Court without assigning any reason. The learned counsel also contended that appellate Court exceeded its lawful jurisdiction by introducing partition of the property on its own motion, whereas no such prayer was made by either of the parties. In the last limb of arguments, it was contended that appellate Court failed to deliver its issue-wise findings and the requirements of Order 41, Rule 31 CPC had not been complied with.
Mr. Hussainuddin Khattak, Advocate for the respondent, on the other hand, supported the impugned judgment whole heartedly, maintaining that the material on record has been properly appreciated in its true perspective and judgment and decree of the trial Court has been reversed for valid reasons.
Arguments of learned counsel for the parties have been heard in the light of the material on record.
A perusal of the impugned judgment would reveal that plausible reasons have been given in support of the conclusion arrived at and no case of misreading or non-reading of evidence has been made out. The learned appellate Court has embarked upon the issues involved in the case, appreciated the evidence on record in its true perspective and has reached to the proper conclusion which is not open to exception. It was on consideration of the evidence in its totality that a finding was recorded. There is no misreading or non-reading of any material piece of evidence, which could render the findings of the appellate Court unworthy or illegal. The appellate judge has duly taken into consideration all the material facts of the case and after having done so, has recorded a detailed and well reasoned judgment, which of course, is the result of proper application of mind. Although the learned counsel for the petitioners has contended that the impugned judgment suffers from misreading and non-reading of evidence, yet when asked to explain as to which portion of the evidence has been misread or non-read by the appellate Court, the learned counsel despite his best efforts could not point out any such misreading or non-reading.
Attending to the objection raised by learned counsel for the petitioners regarding non-compliance of requirements of Order XLI, Rule 31 CPC no doubt, it is true that the characteristic of a good judgment is that it must be self-evidence and self-explanatory, in other words, it must contain reasons that justify conclusions arrived at and these reasons should be such that a dis-interested reader can find them convincing at least reasonable. In the instant case, all the legal formalities had been duly complied with and no prejudice seems to have been caused to the petitioners. The judgment of the appellate Court has been recorded keeping in view the provisions contained in Order XLI, Rule 31, C.P.C.
The contention that appellate Court had failed to record judgment issue-wise and separately in terms of the requirements of Order XX, Rule-5 C.P.C. and thus, the case is fit for remand in terms of Order XLI, Rule 25, thereof the submission is not tenable. Order XX, Rule 5, C.P.C. is evidently applicable to the original Court, which hears a civil suit, As regards appellate Court, the requirement of recording finding issue-wise is not mandatory. It is sufficient for the appellate Court to deal with all the issues as are material for disposal of the controversy excepting those abandoned by the appellant. An appellate Court recording its findings on the points raised before it, without discussing the issues separately cannot be said to have committed any illegality or error as held by this Court in Naimat Khan and others v. Hamzullah Khan and others (2006 CLC 125).
In view the above, I find that neither any non-reading or misreading of evidence nor any material irregularity nor any jurisdictional defect could be pointed out to justify interference. The civil revision is devoid of force. The same is dismissed with no order as to cost.
(T.S. Faisal) Revision dismissed
PLJ 2006 Peshawar 303 [Abbottabad Bench]
Present: Salim Khan, J.
MALIK AMAN--Petitioner
versus
GUL MUHAMMAD--Respondent
C.R. No. 160 of 2003, decided on 30.6.2006.
N.W.F.P. Pre-emption Act, 1987 (X of 1987)--
----S. 13(3)--Talb-i-muwathibat--Exact words for purpose of declaration of intention--Suit for possession through pre-emption dismissed--Revision was accepted--Once a right of pre-emption is declared and intention to purchase said property in preference to other is shown, and that fact is proved, it has never been held that what were exact words which were to be used for purpose of declaration of intention of talb-i-muwathibat--Objection of petitioner on the mutation at time of its attestation shows that he had declared his intention to exercise his right of pre-emption over the sale in-question. [P. 306] A
N.W.F.P. Pre-emption Act, 1987 (X of 1987)--
----S. 13(3)--Requirements of law--Delivery of notice--A registered A.D. notice be sent and when it is proved that such a notice was sent by pre-emptor, it was immaterial whether notice was or was not received by vendee-defendant as the process of delivery of notice was never in control of pre-emptor, and was never requirement of any law--Revision accepted. [P. 306] B
N.W.F.P. Pre-emption Act, 1987 (X of 1987)--
----S. 13(3)--Talbs--Value of suit property--Plaintiff has equal right with defendant as owner of property contiguous to the suit and plaintiff had properly made talb-i-muwathibat and talb-i-ishhad within three days from date of attestation of mutation including the day of attestation of the mutation--Held: Plaintiff is liable to pay District Council fee and mutation fee paid by vendee--Defendant on official rates at the time of execution of decree--Revision was accepted. [Pp. 306 & 307] C
Mr. Mian Amir, Advocate for Respondent.
Date of hearing : 12.6.2006.
Judgment
A Suit No. 202/1 was instituted on 1.10.1998 by Malik Aman son of Rehmatullah against Gul Muhammad son of Mir Zaman for possession through pre-emption of agricultural land in Khata No. 24/71, Khasra No. 199 total measuring 15 kanals 9 marlas situated in the area of Mauza Dhanaka sold to the extent of its 56/864 shares equal to 1 kanal land. The sale was completed vide Mutation No. 278 attested on 15.8.1998. The plaintiff alleged that the suit property was sold for Rs. 15000/- while an amount of Rs. 300000/- was entered in the suit mutation. The plaintiff alleged that he got information about the sale in question on 15.8.1998 at 12 noon at Qazi Hotel Lassan Nawab and he objected to the said sale in the same Majlis in the presence of Jan Muhammad son of Samandar Khan and Jan Muhammad son of Faqir Muhammad, and thus made talb-i-muwathibat. It was further contended by the plaintiff that he sent notice talb-i-ishhad on 17.8.1998, witnessed by the above named two persons which was sent through a registered A.D. letter dated 18.8.1998. The original notice, the envelop and the receipt of the post office were attached by the plaintiff with his plaint. He further contended that he was Shafi-Sharik, Shafi Jar Khalit and Shafi regarding the suit property and that the defendant refused to transfer the suit property to him, therefore, he instituted the suit, which was filed on 1.10.1998.
The evidence of the parties was recorded on the basis of issues framed with relation to the pleadings of the parties.
The issues regarding the sale consideration and market value were Issues Nos. 8 and 9. An amount of Rs. 30,000/- was mentioned in Issue No. 8, although the figure mentioned in the mutation was Rupees three lacs (Rs. 3,00,000/-). The defendant had also stressed in para 1 of the written statement that he had purchased the suit property for Rs. 3,00,000/-. It was also stressed by Khalid Urfan son of Mir Afzal, attorney of the defendant, that an amount of Rs. 3,00,000/- was paid to the vendor and the sale transaction had taken place about one year before the attestation of mutation. The statement of patwari Halqa as P.W. 2, however, does not support the version of any of the two parties, which is to the effect that, according to the average as per Ex. P.W. 2/5, the market value of 12 marlas land is Rs. 16718/16 while 8 marlas land in Kharij-az-parta and the value of the same has not been given. He stated that he has not mentioned any mutation regarding purchase of land for construction in the said five years average as no such land was sold for the purpose of construction of a house.
He gave the per kanal price of Maira land as Rs. 27863/60 and calculated the per kanal market price of Rakkar and Katti land as Rs. 13931/80. Proper consideration was not given to this fact and the amount of Rs. 300000/- as sale consideration was accepted by the learned Civil Judge, on the ground that the plaintiff had not proved the negative, although the defendant was to prove the positive as it was asserted by him. Neither Rs. 16718/16 is the value of the total suit property nor it is Rs. 30000/-. The Kharij-az-parta 8 marlas land has not been valued by patwari halqa. The only evidence available is that of Aust Panjsala Ex. P.W. 2/5 which mentions the highest rate in the area as Rs. 27863.60 per kanal. The value of 8 marlas land according to the value of Maira land comes to Rs. 11145.44. The total value of the suit property could, thus, be about (Rs. 16718.16 + Rs. 11145.44 - Rs. 27863.60). It is worth mentioning that neither the learned Civil Judge, inspite of holding that the amount of Rs. 300000/- was paid, nor the learned Addl. District Judge, inspite of hearing arguments and perusing the record, corrected the Issue No. 8. The learned Civil Judge and the learned appellate Court dismissed the suit and appeal of the pre-emptor. Hence this revision.
As discussed above, the market value of the total 1 kanals suit land comes to Rs. 27863.60 which is near to Rupees thirty thousand (Rs. 30,000/-) as mentioned in Issue No. 8. D.W. 2 (Mehmood Khan son of Jalal Khan) had admitted that no transaction of payment of sale consideration had taken place in his presence. The attorney of the defendant had said that he was present at the time of payment to Juma Khan and the defendant paid the amount in different currency notes but he did not remember the number of notes in accordance to their denomination and stated that the notes were in the purse/bag of the defendant.
I, therefore, hold that the market value of the suit property, and its sale price is Rs. 30,000/-, as no other amount has been proved by the defendant. As for the superior right of pre-emption, it is admitted that Khasra Nos. 198, 201 and 202 belonging to the plaintiff were contiguous to the suit property in Khasra No. 199 while Khasra No. 200 of the defendant was contiguous to the said Khasra No. 199. It means that both the parties had equal rights of pre-emption and the property was ordinarily to be equally divided between them. It is no good reason to say that the plaintiff claimed that he was Shafi Sharik, Shafi Khalit and Shafi Jar, but he did not say anything in his evidence to the effect that he was Shafi Jar. The fact of right of pre-emption of the plaintiff was already proved by the evidence of the patwari halqa, produced as a P.W., and by the revenue record produced by him, and that was sufficient evidence of the rights of the parties. The plaintiff had categorically stated that he was Khata Sharik in the suit property. Though that fact was not proved but the fact of his right of pre-emption on the basis of contiguity was proved by the statement of patwari, and right of pre-emption on the basis of contiguity could not be denied to him.
It was contended at the time of arguments before me that the plaintiff had stated that his objection was written on the mutation itself. This fact is admitted, but the objection of the learned counsel for respondent was that it was mentioned on the mutation that the plaintiff was objecting to the sale on the ground that he was Khata Sharik, and the fact of his Bana Sharik was not mentioned therein. Once a right of pre-emption is declared and the intention to purchase the said property in preference to the other is shown, and that fact is proved, it has never been held that what were the exact words which were to be used for the purpose of declaration of intention of talb-i-muwathibat. The fact of objection of the plaintiff on the mutation at the time of its attestation shows that he had declared his intention to exercise his right of pre-emption over the sale in question.
The fact of sending of the registered A.D. notice to the defendant has been proved by the statement of Haji Fazal Karim Branch Post Master. He mentioned that when the letter was received, it came to his knowledge that the defendant was at Karachi, therefore, he returned the letter. The demand of Subsection (3) of Section 13 of the N.W.F.P. Pre-emption Act, 1987 is that a registered A.D. notice be sent, and when it is proved that such a notice was sent by the pre-emptor, it is immaterial whether the notice was or was not received by the vendee-defendant as the process of delivery of the notice is never in the control of the pre-emptor, and is never the requirement of any law.
In these circumstances, I hold that the value of the suit property is Rs. 30,000/-, that the plaintiff has equal right with the defendant as owner of property contiguous to the suit Khasra No. 199, and that the plaintiff had properly made talb-i-muwathibat and talb-i-Ishhad within three days from the date of attestation of the mutation, including the day of attestation of the said mutation. I, therefore, accept the civil revision, set aside both the impugned judgments and decrees, and grant the decree for possession through pre-emption in favour of the plaintiff against the defendant to the extent of half of the suit property on the payment of Rs. 15000/- to be deposited by the plaintiff within one month from the date of announcement of this judgment, otherwise the suit of the plaintiff shall stand dismissed. I further hold that the plaintiff is liable to pay the District Council fee and the mutation fee, paid by the vendee-defendant on official rates, at the time of execution of the decree, when the defendant produces the exact official receipts regarding the payment of taxes/fees mentioned above. I order accordingly.
(T.S. Faisal) Revision accepted
PLJ 2006 Peshawar 307 [Abbottabad Bench]
Present: Salim Khan, J.
MUHAMMAD SULTAN KHAN--Petitioner
versus
GOHAR AMAN and another--Respondents
C.R. No. 132 of 2005, decided on 6.7.2006.
N.W.F.P. Pre-emption Act, 1987 (X of 1987)--
----S. 13--Talbs--Suit for possession through pre-emption was dismissed--Revision accepted--Defendant could not prove any other date and time on which information was given to plaintiff--There was no evidence on record that any other meeting or sitting was scene of information to the plaintiff regarding the sale in-question--The mentioning of time by itself was not fatal to the suit of plaintiff, if it was not disputed at the time of evidence--Plaintiff has got superior right of pre-emption, that market value of suit property was Rs. 25000, and the same was taken as sale consideration paid by vendee defendant to vendor, that the plaintiff had made talb-i-ishhad properly as accepted by appellate Court, and not objected to by respondent, and plaintiff had properly made talb-i-muwathibat as duly proved by him through his own statement, through the contents of notice of talb-i-ishhad, and through statements of his witnesses, and the suit of the plaintiff was within time--Revision accepted. [Pp. 310, 311 & 312] A & B
Mr. M. Shoab Khan, Advocate for Petitioner.
Mr. Abdul Shakoor Khan, Advocate for Respondents.
Date of hearing : 27.6.2006.
Judgment
A Suit No. 270/1 was instituted by Muhammad Sultan Khan on 1.9.2000. It was alleged in the plaint that 14 and a half marlas land to the extent of 53/432 shares out of 5 kanals 19 marlas land in Khasra No. 2207 situated in the area of Mauza Tanda of District Mansehra, according to Jamabandi for the year 1995-96 was sold vide Mutation No. 7006 attested on 29.4.2000 only for Rs. 25000/-. But the defendant refused to transfer the suit property to the plaintiff on receiving the actual sale amount. It was further contended that the plaintiff was informed at 5 p.m. (Asar time) at Bajna Stop Shinkidari by Momin Khan when Malang Khan was also present and the plaintiff made talb-i-muwathibat, and then sent notice to the defendant through registered A.D. cover which was duly scribed in the presence of Momin Khan and Malang Khan. The defendant contested the suit.
Another suit was instituted by Hajat Khan in which the market value of the suit property was shown Rs. 26000/-, the time of information was shown as 3 p.m. on 22.8.2000 and it was alleged that the defendant had wrongly mentioned amount of Rs. 72500./- in order to ward off the right of pre-emption of Hajat Khan. The defendant contested that said suit also.
The learned Civil Judge, Mansehra vide consolidated judgment in Suit No. 270/1 of 2000 of Muhammad Sultan (petitioner) and Suit No. 273/1 of 2000 of Hajat Khan (rival pre-emptor) dismissed both the suits. On Civil Appeal No. 3/13 of 2004 instituted on 8.1.2004 by Muhammad Sultan and Civil Appeal No. 56/13 of 2004 of Hajat Khan, the learned Addl. District Judge, Mansehra, vide his judgment and decree dated 15.2.2005, dismissed both the appeals. Hajat Khan did not come forward with a civil revision, and there is no need to discuss his case, while Muhammad Sultan filed this Civil Revision No. 132 of 2005 on the grounds mentioned in his petition.
Pre-admission notice was given to the respondent.
I heard the arguments of the learned counsel for the parties and perused the available record. During the arguments, the case was admitted to full arguments, which were heard.
It is an admitted fact on record, through the statement of patwari halqa and the record produced by him, that Muhammad Sultan is owner of the property contiguous to the suit property, while respondent, Gohar Aman, has no right of pre-emption in respect of the suit property as he is a stranger in the area. This fact was accepted by the learned Civil Judge while deciding Issue No. 8. This fact was not agitated before the learned appellate Court and, even, was not argued by the learned counsel for the respondent before me. It is, therefore, by now a proved fact that the petitioner has superior right of pre-emption as against the respondent in respect of the suit property.
The learned Civil Judge contended that according to the averages prepared by patwari, the market value was different from that mentioned as Rs. 72500/- vide Mutation No. 7006 dated 29.4.2000, and there was no evidence about the fact that sum of Rs. 72500/- was not paid by the defendant. It was held that mutation had been exhibited without any objection, which amounted to admission of the amount mentioned therein.
The learned appellate Court also came to the conclusion that the learned trial Court was of the opinion that sale consideration mentioned in the mutation was fixed in good faith and actually paid, and same was the market value of the suit property. He further contended that, according to one year average, the market value of the suit property was Rs. 20076/- but that average was fixed on the basis of two mutations while, according to five years average, value of the suit property was Rs. 14500/- and that average was based on seven mutations. He was of the view that those averages could not be considered in determination of the actual market value of the suit property.
The learned Civil Judge shifted the burden of proof of nonpayment of Rs. 72500/- to the plaintiff, inspite of the fact that Issue No. 9 was to be proved by the defendant and he was to produce evidence regarding payment of the said amount. The learned appellate Court did not take such shifting of burden to the plaintiff into consideration while recording his judgment. The defendant had produced only Babu Hussain son of Suleman as his attorney who was cross-examined on the point of fixation of the value as mentioned above. But no other evidence was produced by the defendant in this respect. The learned Addl. District Judge had no other alternative for fixation of the market value of the suit property, and ascertainment of the fact whether an amount of Rs. 72500/- was fixed in good faith and paid to the vendor, except to either take into consideration the statement of patwari halqa and the documents produced by him into consideration or order further proceedings for ascertainment of the market value. He just relied on the incorrect assessment of the learned Civil Judge, and wrongly held that the averages prepared by the patwari were not reliable. According to five years average, based on seven mutations, the market value was Rs. 14500/- while, according to the one year average, the market value was Rs. 20076/-. The plaintiff had himself accepted the sale consideration as Rs. 25000/- in his plaint.
In the circumstances of this case, I hold that the learned Civil Judge and the learned Addl. District Judge wrongly fixed the market value of the suit property as Rs. 72500/-. In fact, they were to accept the amount of Rs. 20076/- as the market value of the suit property if the plaintiff had not accepted the market value/sale consideration as Rs. 25000/-. I, therefore, declare that the sale consideration of the suit property is Rs. 25000/- as admitted by the plaintiff through his plaint.
The learned Addl. District Judge declared that formalities required in performance of talb-i-ishhad were fulfilled in accordance with law. There is no revision or cross objection by the respondent in this respect. It is, therefore, held that talb-i-ishhad was properly made. The learned appellate Court, however, came to the conclusion that talb-i-muwathibat was not proved by Muhammad Sultan. He mentioned that the plaintiff had mentioned in the plaint that he came to know about the sale through Momin Khan at Bajna Stop, Shinkiari, at 5 p.m. on 12.8.2000 but he did not mention the time in his statement as P.W.5, though he explained that Bajna Stop extended from a bridge to one school. The learned appellate Court further referred that Momin Khan, as P.W.6, did not mention the time whether it was morning, evening or night time. He was of the view that talb-i-muwathibat was an immediate demand and non-mentioning of time in the statement by plaintiff was the basis for adverse inference.
The statement of Malang Khan P.W. 7 starts with the words that he was going to his house from performing duty and was waiting at Shinkiari Stop when the plaintiff was informed by Momin Khan in his presence. There was no suggestion by the defendant to any of the witnesses named above that the time on 12.8.2000 was not the time as mentioned by the plaintiff in his plaint, and that the plaintiff was not referring to the same time while recording his statement and the statement of his witnesses. The defendant could not prove any other date and time on which information was given to the plaintiff. There is no evidence on record that any other meeting or sitting was the scene of information to the plaintiff regarding the sale in question. The mentioning of time by itself is not fatal to the suit of the plaintiff if it is not disputed at the time of evidence, which is the position in this case. In the circumstances of this case, the learned Civil Judge, Mansehra, and the learned Addl. District Judge, Mansehra did not properly appreciate the evidence of the parties and formed opinion out of the context of the said evidence.
The learned counsel for the respondent contended that the mutation was attested on 29.4.2000 while the information given to the plaintiff was shown on 12.8.2000, while the suit was instituted on 1.9.2000, and therefore, the suit was time barred. The issue of this objection was taken by the respondent in his writ statement, but no issue was framed on the basis of the said plea of the defendant. The learned Civil Judge, therefore, did not discuss the question whether the suit was or was not within time. That fact was not brought to the notice of the Court by the defendant either at the time of framing issues or at the time of arguments. The written statement shows that the words meaning "suit of the plaintiff is time barred" appeared to be later insertion in the written statement and the numbers of preliminary issues have been changed. It is not sure whether this objection was or was not available at the time of framing of issues, or at the time of evidence of the parties and whether this insertion was made initially at the time of submission of the written statement or it was made at some later stage.
The learned counsel for the respondent contended that the time of 120 days was to complete on 27th August, 2000 but the suit was instituted on 1.9.2000 and, therefore, the suit was time barred. He contended that judicial officers were to remain on duty during the summer vacations turn by turn and office was to receive the suits/appeals, but the appeal was not filed in time.
The learned counsel for the petitioner, on the other hand, relied on the Notification No. 3465-80/Admn. (LA-25) dated 2.5.2000 issued by the Registrar, Peshawar High Court, by the order of the Chief Justice and Judges of Peshawar High Court, wherein it was declared that all the Civil Courts original and appellate subordinate to the Peshawar High Court, Peshawar would remain closed for annual summer vacations w.e.f. 1st August, 2000 till 31st August 2000 except Chitral and Shangla. He also referred to the Circular No. 3391-3438/Admn. (LA 25) dated 2.5.2000 on the subject of grant of vacations leave to District/Addl. District & Sessions Judges during the year 2000.
He mentioned para 2 of the said circular wherein it was held that at places where there were more than one officer, the period of vacations would be so adjusted between 20th July to 4th September, 2000 that at least one officer, i.e. District/Addl. District & Sessions Judge remains at the station in the absence of the other for entertaining and disposing of urgent civil and criminal matters like stay and bail applications etc. He also mentioned para 5 of the said circular wherein it has been mentioned that all the District & Sessions Judges were requested to forward consolidated programme of vacations leave in such a manner that one Civil Judge cum Judicial Magistrate remained at the station for entertaining and disposing of the urgent civil and criminal matters like stay and bail applications etc. throughout the vacation period. He contended that the presence of the judicial officer at the station during the summer vacations was not for normal civil work but was only for entertaining and disposing of urgent civil and criminal matters like stay and bail applications etc, while the filing of appeal was not a matter of urgent nature. The plaintiff, therefore, filed the appeal immediately on the first day of re-opening of the Court, and the period of vacations was to be excluded for the purposes of counting the period of 120 days.
The contention of the learned counsel for the plaintiff-petitioner is correct and needs no further explanation.
In the light of the above, I hold that the plaintiff has got superior right of pre-emption, that the market value of the suit property is Rs. 25000/- and the same is taken as the sale consideration paid by the vendee defendant to the vendor, that the plaintiff had made talb-i-Ishhad properly as accepted by the learned appellate Court, and not objected to by the respondent, and that the plaintiff had properly made talb-imuwathibat as duly proved by him through his own statement, through the contents of the notice of talb-i-ishhad, and through the statements of his witnesses, and that the suit of the plaintiff was within time.
I, therefore, set aside both the impugned judgments, and decrees and grant the decree for possession through pre-emption of the suit property in favour of the plaintiff against the defendant, on the payment of Rs. 25000/- as the pre-emption amount, alongwith the mutation fee and the District Council fee duly paid by the vendee-defendant on official rates. The plaintiff-petitioner is directed to deposit the amount of Rs. 25000/- or its un-deposited part, within one month from today otherwise his suit shall stand dismissed on this ground. He is further to pay the mutation fee and the District Council fee on the official rates at the time of execution of the decree in his favour when either the defendant/judgment-debtor produces the actual receipts of payment of such fees or the Executing Court ascertains the same amount otherwise. The parties are, however, left to bear their own costs.
(T.S. Faisal) Revision accepted
PLJ 2006 Peshawar 312 (DB)
Present: Tariq Parvez Khan and Muhammad Raza Khan, JJ.
IMDAD KHAN--Petitioner
versus
POLITICAL AGENT, DISTRICT MAGISTRATE KHYBER AGENCY, PESHAWAR and 3 others--Respondents
W.P. No. 818 of 2006, decided on 29.6.2006.
Frontier Crimes Regulation, 1901--
----S. 21--Constitution of Pakistan, (1973)--Art. 199--Action in hostile or unfriendly manner toward Governments--Validity--Before taking action, the concerned persons must be informed of the action proposed to be taken against them--Notice issued to the father cannot be presumed to be a valid notice to son--Any illegal activity of father cannot justify penal action against personal property of his son, who is not proved to be involved in any such activity--Corporate body was a juristic person having an independent right to own and possess property--The directors merely manage property of company were owners of their respective shares which could be transferred to others--Thus property of company is not exclusive property of the directors nor of the shareholders--Penal action against one or more of directors does not justify coercive action against property belonging to corporate body--Petition accepted.
[Pp. 314 & 315] A, B & C
Mr. Abdul Latif Afridi, Advocate for Petitioner.
Mr. Muhammad Nizar, D.A.G. Advocate for Respondents.
Date of hearing : 29.6.2006.
Judgment
Muhammad Raza Khan, J.--By this judgment the connected W.P. No. 820/2006 (M/s. Toyota Frontier (Pvt.) Limited vs. Government) shall also be decided, as both the petitions relate to the same dispute.
Vide two orders dated 11.6.2006 and 12.6.2006, issued by the Political Agent Khyber, certain property, of both these petitioners, and several others, were ordered to be sealed/attached for the reason that "the owners are involved in creating unrest in Bara Sub Division by supporting Mangal Bagh Group". Vide order dated 11.6.2006 the property of "Toyota Frontier Motors" (petitioners in W.P. No. 820/2006) and the "office/shop in Shah Shopping Centre at 3rd flour Karkhano Market" belonging to Imdad Khan petitioner, and vide order dated 12.6.2006 the property called "Imdad Kambal House Block B Shop Nos. 32 and 33, Shah Shopping Centre" belonging to Imdad Khan petitioner were ordered to be attached. Since the order was addressed to the SSP, Peshawar, therefore, on his direction the concerned SHO Police Station Hayat Abad Respondent No. 4 in this petition (and SHO Police Station University Town (Respondent No. 6 in the connected petition) sealed the said property. This action has been challenged separately by these two constitutional petitions. From the lists it appears that property belonging to several others were also similarly attached/sealed.
We have listened to Mr. Abdul Latif Afridi, Advocate, learned counsel for the petitioner Imdad Khan and Mr. M. Sardar Khan, Advocate, learned counsel for petitioner Toyota Frontier (Pvt.) Limited. The learned law officer for the respondents was also heard.
The main defence on behalf of the respondents is that under Section 21 of the Frontier Crimes Regulation 1901, the political authorities can attach the property of the persons belonging to the tribal areas despite the fact that the properties may be situated in the settled area. For the purpose of convenience Section 21 FCR reads as follows:--
"21. Blockade of hostile or unfriendly tribe. In the event of any frontier tribe, or of any section or members of such tribe, acting in a hostile or unfriendly manner towards the Pakistan Government or towards persons residing within Pakistan, the Deputy Commissioner may, with the previous sanction of the Commissioner, by order in writing, direct--
(a) the seizure, wherever they may be found, of all or any of the members of such tribe and of all or any property belonging to them or any of them;
(b) the detention in safe custody of any person or property so seized and;
(c) the confiscation of any such property; and may, with the like sanction by public proclamation;
(d) .........................
(e) ........................."
The plain reading of the said section indicates that taking penal action under this provision is qualified by the phrase "action in hostile or unfriendly manner towards the Government." There is no absolute or unconditional discretion of the concerned authorities to take action against a tribe or its members. "Acting in hositle manner" is serious charge which is not applicable in this case. However the term "unfriendly manner" is a diluted but a wide term. "Creating unrest" may or may not amount to "acting in unfriendly manner". Therefore, it presupposes that before taking action, under the said statutory provision, the concerned persons must be informed of the action proposed to be taken against them. Principles of natural justice must be followed. It has been frequently held by the Hon'ble Supreme Court that these principles should be read as part and parcel of every statute, despite the fact that they may not be specifically stated. Reference can be made to H.M.Saya & Company vs. Wazir Ali Industries Ltd. (PLD 1969 S.C. 65) NAB vs. Mst. Zahida Sattar (PLD 2001 Karachi 256).
Examining these petitions in the light of the said observation we have noticed that in the case of Imdad Khan certain notices were issued to Haji Bahadur of Bar Qamber Khel who is the father of Imdad Khan petitioner. He has been informed vide a notice dated 4.4.2006 that he should "stop his illegal activities and financial assistance of Mufti Group". Apparently no notice was ever issued to Imdad Khan petitioner. A notice issued to the father cannot be presumed to be a valid notice to the son. Any illegal activity of the father cannot justify penal action against the personal property of his son who is not proved to be involved in any such activity.
In the case of Toyota Frontier (Pvt.) Limited (W.P. No. 820/2006) it has been stated that certain notices were issued to Haji Abdul Hanan of Bar Qamber Khel and that the said Haji Abdul Hanan has participated in the Jirga of Arfidi tribe with political authorities, where they had committed that they will make every sincere effort to resolve the Mangal Bagh dispute and that in consideration thereof the said premises of Toyota Frontier Motors be de-sealed. It was stated at the bar, on behalf of the respondents, that as a result of the said compromise the property has been de-sealed. However the learned counsel for the petitioners argued that even the original impugned order of attachment and sealing of the premises was illegal and amount to misuse of authority.
The examination of documents annexed to the petition displays that the petitioner Toyota Frontier (Pvt) Limited is a corporate body. Haji Abdul Hanan does not appear to be done of the directors of the said company. The present directors are Mr. Niaz Badshah Afridi, Mr. Attaullah Khan, Mr. Shahid Hameed, Mr. Gul Zada and Mr. Muhammad Shafique. There is no proof that all of them have committed anything to justify the application of Section 21 to them or their property. Even if they were guilty of an offence, the notice should have been issued to them. "Audi Alteram Partem" is an established principle of equity. The service of notice on one Haji Abdul Hanan cannot be presumed to be a notice on the owners, directors and shareholders of the petitioner company. Any action taken against the petitioner without the service of notice and without providing opportunity of hearing, is an irreversible illegality, as discussed hereinabove.
The corporate body is a juristic person having an independent right to own and possess property. The directors merely manage the property of the company. They are the owners of their respective shares which can be transferred to others. Thus the property of the company is not the exclusive property of the directors nor of the shareholders. The penal action against one or more of the directors does not justify the coercive action against the property belonging to corporate body. In the case of M/s Frankson & Company vs. Mian M. Hussain (1983 CLC 1042) it has been held a:--
"According to law a company is a separate juristic person, distinct and different from its shareholders. It is not a mere "alias" for its share-holders nor merely an agent for them. Any individual shareholder cannot indemnify the company against debts which it incurred except to the extent of his share in the capital. His liability is limited to that extent and he can only be called upon to contribute in the event of a winding up of the company to the extent of his own share. Reliance in this respect can be placed upon A. Salman & Company Ltd. v. Aron Salaman, Aveline Scott Ditcham V. James J. Miller, E.B.N. Company Ltd. V. Dominion Bank, and Ikram Bus Service and others V. Board of Revenue, West Pakistan etc. In the first case Lord Machaughten observed as follows:--
"....the company is at law a different person altogether from the subscribers to the memorandum, and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the Company is not in law the agent of the subscribers or trustees for them. Nor are the subscribers as members liable, in any shape or form, except to the extent and in the manner provided by the Act".
We, therefore, accept these petitions, set aside the impugned orders with the direction that the respondents should avoid misusing the powers under the FCR.
(T.S. Faisal) Petitions accepted
PLJ 2006 Peshawar 316
Present: Muhammad Raza Khan, J.
MUHAMMAD IFTIKHAR KHAN--Petitioner
versus
FAZAL AHMAD and others--Respondents
C.R. No. 45 of 1998, decided on 1.8.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. II, R. 2--Suit for declaration--Rights of innocent persons were likely to be affected by judgment which was based on a suit instituted by plaintiff, after sixty years--Limitation does not run against fraud" and "each new jamabandi creates a fresh cause of action for plaintiff" have been frequently mis-used particularly affecting the right of innocent purchasers--Purchaser was not likely to notice the defect of transferor despite every caution and macroscopic scrutiny of title of the transferor in such like cases--Held: Right of a person can not be extinguished merely for reason that property has been further alienated to different owners--No proof of transfer of rights in the suit property by plaintiff, therefore he was entitled to his 1/4th share--Petition dismissed. [Pp. 318 & 319] A
Mr. Khalid Mahmood, Advocate for Petitioner.
Mr. Farid Khan Afridi, Advocate for Petitioners (in CR No. 48/98).
Mr. Muhammad Alam Khan, Advocate for Respondent.
Date of hearing : 1.8.2006.
Judgment
This revision petition and the connected Revision Petition No. 48/98 are directed against a single judgment in appeal whereby the learned appellate Court accepted the same, set aside the judgment of the learned trial Court and decreed the suit of the plaintiffs Fazal Ahmad etc. Hence through this common judgment both the revision petitions are being decided.
This is a typical case of mis-use of official authority by the revenue officials, particularly the patwari. Certain property was owned in the year 1925-26 by Abdul Mutlib (one half share), Ali Ahmad and Fazal Ahmad one half share, Ali Ahmad had sold his share through a registered deed dated 4.3.1929 and Mutation No. 216 dated 20.1.1931 was attested thereupon whereby out of three khasra numbers measuring 59 kanals 13 marlas, 1/4th share of Ali Ahmad measuring 14 kanals 18 marls was transferred in favour of Abdul Mateen Khan. Vide a subsequent Mutation No. 366. Abdul Mutlib had also sold his entitlement of half share in the suit property measuring 29 kanals 16 marlas to the said Abdul Mateen Khan on 26.3.1931. While incorporating the said mutation in the next jamabandi of 1932-33, the patwari played the trick. The share of Abdul Mutlib and Ali Ahmad was shown in the name of Abdul Mateen Khan but the property of Fazal Ahmad was also shown to have been transferred in the name of Abdul Mateen Khan and he has been shown as the original owner to the extent of half share and `Malik Qabza' to the extent of remaining half share. However, the name of Fazal Ahmad was mentioned in the column of ownership alongwith Abdul Mutlib being a sharer in the Shamilat only. This position continued in the next jamabandi of 1936-37. In the jamabandi of 1940-41 the name of Abdul Mutlib disappeared as he had expired and his inheritance Mutation No. 944 was attested on 20/5/1938 and thereafter both the brothers Fazal Ahmad and Ali Ahmad were mentioned in the column of ownership of both the khasra numbers but to the extent of their share in shamilat. In the meanwhile, Abdul Mateen Khan believing himself to be the executive owner sold the entire Khasra No. 1286 measuring 34 kanals 1 marla to Abdul Khaliq Khan vide Mutation No. 738 attested on 13.6.1935. Abdul Khaliq Khan gifted the said property to his three sons namely Mir Muhammad, Pir Muhammad and Shah Jehan vide gift Mutation No. 1549 dated 15.5.1947 and subsequently after 1971 there has been several transfer mutations. The said Fazal Ahmad instituted a suit on 3/7/1988 claiming his 1/4th share in two Khasra Nos. 1321 and 1286 only. This suit was contested by different sets of respondents and after recording the evidence, the learned Civil Judge Takht Bhai vide his judgment and decree dated 11.6.1996 dismissed the suit of the plaintiff with regard to the said two Khasra numbers but held him entitled to the proportionate share in shamilat relating to the said two khasra numbers. An appeal was filed by the plaintiff which was allowed by the learned Additional District Judge Mardan at Takht Bhai on 20.12.1997, whereby the judgment of the learned appellate Court was set side and suit of the plaintiff was decreed as prayed for. This appellate judgment has been challenged in this revision petitioners by two set of defendants.
I have listened to the arguments on behalf of the parties and scrutinized the record.
Fazal Ahmad, plaintiff/respondent, was certainly the owner of 1/4th share in the suit property and he had neither sold nor alienated his share in the said khasra numbers to any body. The entries in the revenue record were confusing whereby his name appeared in the column of ownership of the suit property throughout and the nice distinction whether he was recorded as the owner in the khasra number or as owner in shamilat on the basis of said entry could not be noticed by a layman. A fraud has thus been committed by the revenue officials and his title has been negated without any act on his behalf but still deceptively he was shown as owner. Any entry in the revenue record based on fraud can be challenged any time as no limitation runs against fraud.
The contention that the other common property has not been included in the suit has no relevance because it is the choice of the plaintiff to restrict his claim to a particular area. This is no defect in the suit. However, if he subsequently files a similar suit with regard to the remaining property, such subsequent suit shall be barred under Order II, Rule 2 CPC. However, Mutation No. 1048 explains the phenomena whereby he had alienated the rest of the property but the suit khasra numbers have not been so transferred.
There is no denial of the fact that the rights of so many innocent persons are likely to be affected by the impugned judgment which was based on a suit instituted by the plaintiff Fazal Ahmad after a long slumber of sixty years. The two phrases, i.e. "limitation does not run against fraud" and "each new jamabandi creates a fresh cause of action for the plaintiff" have been frequently mis-used particularly affecting the right of the innocent purchasers. A purchaser is not likely to notice the defect of the transferor despite every caution and macroscopic scrutiny of the title of the transferor in such like cases. However, the fact remains that the right of a person cannot be extinguished merely for the reason that property has been further alienated to different owners. Since there is no proof of transfer of rights in the suit property by the plaintiff Fazal Ahmad, therefore, he was entitled to his 1/4th share therein and the learned appellate Court has properly appreciated the evidence and appropriately applied the law. The impugned judgment does not suffer from any defect, hence both the revision petitions are without merits which are hereby dismissed with no order as to costs.
(T.S. Faisal) Petition dismissed
PLJ 2006 Peshawar 319 [Abbottabad Bench]
Present: Salim Khan, J.
SHAMRAZ KHAN and 8 others--Petitioners
versus
MUHAMMAD RAFIQUE and others--Respondents
C.M. No. 121 of 2004, decided on 6.7.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Constitution of Pakistan, 1973, Art. 199--Jurisdiction--Proper forum for submission of petition u/S. 12(2) C.P.C. will be the Court whose judgment, decree or order has attained finality, and not the revisional, appellate or constitutional forum which has not changed or reversed the said judgment, decree of order--Doctrine of merger of judgment, decree or order of Court into judgment, decree or order of Court at revisional or appellate level or exercising Constitutional jurisdiction will apply when such judgment, decree or order was modified, altered, changed or reversed by the respective judgment, decree or order at the stage of revision, appeal or exercise of Constitutional jurisdiction--Unchanged part of such judgment, decree or order shall become part of judgment, decree or order which changed it otherwise--But in cases in which such judgment, decree or order is kept intact, without any change or interference with it, doctrine of merger does not apply, and decision amounts to further confirmation of, and securing finality for such judgment, decree or order--Petition was properly filed before proper forum, but was wrongly returned--Held: Petition was remanded and directed the civil judge to deal with it in accordance with law, and decide it on merits, therefore, there was no need for condonation of delay for said period, because petition will be received by the judge at stage immediately before impugned order, as it was not returned by impugned order--Further held: Civil Court had jurisdiction, as proper forum for petition u/S. 12(2) C.P.C. in circumstances of the case, and should have decided petition on its own merits. [Pp. 322 & 323] A & B
Mr. Ghulam Younas Khan Tanoli, Advocate for Petitioners.
Mr. Faheem Tanoli, Advocate for Respondents.
Date of hearing : 15.6.2006.
Judgment
Salim Khan, J.--A Suit No. 215/1 was instituted by Muhammad Rafique son of Qalandar Khan on 24.10.1984 which was decreed on 20.5.1989. An appeal was instituted by Mst. Noor Jehan and others through R.F.A. No. 30 of 1989 which was dismissed by this Court on 4.8.1994. The present petitioners filed petition under Section 12(2) C.P.C. vide Case No. 3/12 instituted on 22.4.1998 which was decided on 5.5.2004. It is worth-mentioning that the learned Senior Civil Judge, Abbottabad vide the said impugned order discussed that it was a settled principle of law for adjudication of petitions under Section 12(2) CPC that the proper forum would be the Court which passed the final judgment/decree, and held that his Court did not have jurisdiction. He returned the petition to the petitioners for presentation before the proper forum. It was on 29.6.2004 that the petition was presented before this Court. The same is contested by the real respondents.
We heard the arguments of the learned counsel for the parties and perused the record.
The learned counsel for the petitioners contended that the judgment/decree dated 4.8.1994 passed by this Court and the judgment and decree in Suit No. 215/1 by the learned Senior Civil Judge, Abbottabad dated 20.5.1989 were liable to setting aside as these were the result of fraud and misrepresentation.
He, however, contended, on the point of jurisdiction, that it was the Court of the learned Senior Civil Judge/Civil Judge, Abbottabad, who had granted the original decree mentioned above, who had jurisdiction for the purposes of petition under Section 12(2) C.P.C., and this Court was not the proper forum for the said petition but the learned Senior Civil Judge has given a wrong verdict on 5.5.2004, which was against the law as explained by the superior Courts.
The learned counsel for the respondents, however, contended that the appeal was decided by this Court and, therefore, it was this Court, and not the Court of the Senior Civil Judge, Abbottabad, which was the proper forum for the purposes of petition under Section 12(2) C.P.C. The learned counsel for the respondents referred to 1993 CLC 1257 (Karachi) and contended that the judgment, decree and order of the learned Senior Civil Judge, Abbottabad had merged in the judgment of this Court, and, due to doctrine of merger, it was this Court, and not the Court of Senior Civil Judge, Abbottabad, which is the proper forum for the purposes of the petition under Section 12(2) C.P.C. He also relied on PLD 1994 Lahore 119 as well as 1999 MLD 3082 in this respect. He also referred to PLD 1995 SC 564 and contended that this Court was the only proper forum as the appeal in question was dealt with by this Court. He further relied on 2001 MLD 1033 and 1997 CLC 1893.
The learned counsel for the petitioners relied on 1993 SCMR 1171 and contended that the petition under Section 12(2) CPC was to be filed before the Court which had granted final judgment, decree or order and not before the Court which had merely confirmed the said judgment, decree or order by dismissing the revision, appeal, petition, or leave to appeal. He also relied on 2001 SCMR 1062 in this respect. In order to further explain the correct legal position, the learned counsel for the petitioners referred to paras 3 and 4 of the judgment reported as 2000 SCMR 900. The contents of para 3 of the said judgment are as under:--
"3. It is to be noted that the above view was expressed by three Hon'ble Judges of this Court whereas case of Mubarak Ali v. Fazal Muhammad and another (PLD 1995 SC 564) was heard by two Hon'ble Judges and whereas last-mentioned case was also heard by three Hon'ble Judges including the Hon'ble Chief Justice, Mr. Justice Ajmal Mian (As he than was) who has authored the judgment, therefore, the view expressed by the majority of Judges prevailing right from the time when the case of Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid (1993 SCMR 1171) was decided shall prevail. In both the cases i.e., 1993 SCMR 1171 and 1999 SCMR 1516 the ratio decidendi is that if Supreme Court merely affirms judgment or order of High Court by refusing leave the final judgment in terms of Section 12(2), C.P.C, will be of the High Court and not of the Supreme Court, and if, however, Supreme Court reverses a judgment of a High Court and records a finding on question of fact or law contrary to what was held by the High Court, in that event the final judgment or order would be of the Supreme Court for the purposes of Section 12(2), C.P.C."
The same proposition, as contended by the learned counsel for the petitioners has further been explained in PLD 2002 SC 391. Paras 4 and 5 of the said judgment explicitly clarify the legal position. These paras are reproduced as below:--
"4. The law on the subject now stands clarified and settled in view of the dictum laid down in Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCMR 1516 that if the Supreme Court merely re-affirms a judgment or order of a High Court by refusing leave to appeal the final judgment in terms of Section 12(2), C.P.C. will be of the High Court and not of the Supreme Court and if the Supreme reverses a judgment of a High Court and records a finding on question of fact or law contrary to what was held by the High Court, the final judgment or order would be of the Supreme Court for the purposes of Section 12(2), C.P.C. The same view was reiterated in Abid Kamal v. Mudassar Mustafa and others 2000 SCMR 900.
Adverting to the case in hand we find that by dismissing the petition for leave to appeal this Court had affirmed and not reversed the judgment of the Lahore High Court. The final judgment in terms of Section 12(2) C.P.C. is, therefore, of the High Court and as such there can be no dispute with the proposition that jurisdiction to entertain and decide the application under Section 12(2), C.P.C. moved by the petitioners vests exclusively in the Lahore High Court."
In the light of the above arguments, with perusal of record, we have come to the conclusion that the impugned judgment granted by the learned Senior Civil Judge in Suit No. 215/1 of 1984, decided on 20.5.1989, had finally decided the dispute between the parties of the said suit and the appeal in R.F.A. No. 30 of 1989 decided on 4.8.1994 was dismissed, which amounted to confirmation of the said original judgment. No modification, alteration, amendment in the said judgment was made at the appellate level and the judgment in question was not partially or wholly reversed. It clearly meant that the impugned judgment remained intact and attained finality as it was not changed at the appellate level. It has clearly been held that, unless a decision is made or order is issued at the revisional or appellate level or in exercise of Constitutional jurisdiction, which is other than the one made or issued by the Court against which the appeal, revision or Constitutional petition has been filed, the judgment, decree or order by such Court shall attain finality. The proper forum, therefore, for submission of petition under Section 12(2) C.P.C. will be the Court whose judgment, decree or order has attained finality, and not the revisional, appellate or Constitutional forum which has not changed or reversed the said judgment, decree or order.
The doctrine of merger of the judgment, decree or order of the Court into the judgment, decree or order of the Court at revisional or appellate level or exercising Constitutional jurisdiction will apply when such judgment, decree or order is modified, altered, changed or reversed by the respective judgment, decree or order at the stage of revision, appeal or exercise of Constitutional jurisdiction. In such a case the unchanged part of such judgment, decree or order shall become part of the judgment, decree or order which changed it otherwise. But, in cases in which such judgment, decree or order is kept intact, without any change or interference with it, the doctrine of merger does not apply, and the decision at the latter mentioned levels amounts to further confirmation of, and securing finality for, such judgment, decree or order.
As we have already held that the judgment of the learned Senior Civil Judge, Abbottabad, in the light of dismissal of the appeal by this Court, was the final judgment and decree which attained finality due to dismissal of appeal, with no further proceedings, the learned Senior Civil Judge, Abbottabad has erred in deciding that he lacked jurisdiction for entertaining the petition under Section 12(2) C.P.C. in this case, and he wrongly returned the petition to the petitioners for its submission before any other forum.
The learned counsel for the petitioners had requested through the prayer for interim relief that the period spent before the learned Senior Civil Judge, Abbottabad after submission of the petition till its return and submission before this Court be condoned in special circumstances of the case. As we have held that the petition was properly filed before the proper forum but was wrongly returned, and we intend to return the petition and direct the learned Senior Civil Judge, Abbottabad to deal with it in accordance with law and decide it on its merits, therefore, there is no need for condonation of delay for the said period, because the petition will be received by the learned Senior Civil Judge at the stage immediately before the impugned order, as if it was not returned by the impugned order.
In consequence to the above, we hold that the learned Senior Civil Judge, Abbottabad had the jurisdiction as the proper forum for petition under Section 12(2) C.P.C. in the circumstances of the case, and should have decided the petition on its own merits. We, therefore, return the petition to the learned Senior Civil Judge, Abbottabad with the direction as aforementioned. Parties are directed to appear there on 19.7.2006 for further proceedings.
(T.S. Faisal) Case remanded
PLJ 2006 Peshawar 323 [Abbottabad Bench]
Present: Salim Khan, J.
Syed AFSAR ALI SHAH--Petitioner
versus
Syed HASSAN SHAH--Respondent
C.R. No. 124 of 2003, decided on 30.6.2006.
N.W.F.P. Pre-emption Act, 1987 (X of 1987)--
----Ss. 14 & 13(3)--Civil Procedure Code (V of 1908)--S. 115--Talb-i-muwathibat--Determination of--Suit for possession through pre-emption was dismissed--Revision was accepted--Determination of--Contradictions regarding sitting of persons on charpois or otherwise, the entry of any of them as first, second or third to the room, exact mention of persons who went out to see off plaintiff and of persons who stayed back are mere details of sitting in which talb-i-muwathibat was made--Basic questions to be ascertained are whether such a sitting or meeting was proved, whether information was received during such a meeting, and whether declaration of intention to pre-empt suit property was made by plaintiff--Such a sitting occurred at a house, that information was received by plaintiff there and that he made talb-i-muwathibat in the said sitting in presence of witnesses. [P. 326] A
N.W.F.P. Pre-emption Act, 1987 (X of 1987)--
----Ss. 14 & 13(3)--Talbs--Notice served by counsel--Proved of--Notice was sent by counsel of pre-emptor, like all other proceedings for purposes of suit of pre-emption, counsel for pre-emptor was executed to have acted for and instead of pre-emptor, but on his instructions--It has never been prescribed that pre-emptor should personally go to post office, meet the concerned clerk, pay official fee, and get notices registered and sent to vendee-defendant by post office in his presence--Pre-emptor takes steps to send notices to defendant, and such steps have been taken in this case by pre-emptor himself--Revision accepted. [Pp. 327 & 328] B
Mr. Fida Muhammad Khan, Advocate for Petitioner.
Mr. Tahir Faraz, Advocate for Respondent.
Date of hearing : 29.5.2006.
Judgment
Agricultural land measuring 3 kanals 7 marlas equal to 176/880 shares, out of 16 kanals 17 marlas land, in Khasra Nos. 279, 282, 290 and 295 of Mauza Maidan of Tehsil and District Batagram, was sold to Syed Hussain Shah son of Khalil Muhammad Shah vide Mutation No. 334 attested on 7.10.2000. Afsar Ali Shah son of Syed Akbar Shah instituted Suit No. 76/1 of 2001, wherein he alleged that Syed Habib Shah and others sold the suit property to the defendant for rupees one lac (Rs. 1,00,000/-) but an amount of rupees five lacs (Rs. 5,00,000/-) was incorrectly entered in the suit mutation in order to ward off the right of pre-emption of the plaintiff. It was further contended that the plaintiff got information at the house of Syed Amjad Ali Shah through Faizullah Shah son of Syed Sarwar Shah at 2 p.m. on 19.11.2000, and the plaintiff declared his intention to pre-empt the suit property in the presence of Syed Amjad Ali Shah and Mubarak Shah.
The plaintiff further contended that he sent notice Talb-i-ishhad, duly attested by the two witnesses, and accompanied by the A.D. card, to the defendant which was received by the defendant. The plaintiff attached the copy of the notice, of the receipts of registration of the notice and the receipt of A.D. card alongwith his plaint. The further contention of the plaintiff was that the plaintiff was co-sharer in the suit property while the defendant did not have such a right and the plaintiff also had the right as Shafi Khalit and Shafi Jar, and that no notice was given to the plaintiff regarding the sale in question.
This suit was contested by the defendant. After recording evidence of the parties on the basis of the issues arising out of the pleadings of the parties, and hearing arguments of the parties, the learned Civil Judge dismissed the suit of the plaintiff vide his judgment in Suit No. 76/1 of 2001 instituted on 30.1.2001. The main observation of the learned Civil Judge was that there were contradictions in the statement of the P.Ws. regarding talb-i-muwathibat, specially that the plaintiff in his statements as P.W.5 deposed to the effect that he alongiwth other witnesses were sitting on a charpoy when the informer about the factum of sale entered the room and informed them, and this statement of P.W. 5 is contradicted by the witnesses when put to them in their cross-examination, and they narrated their own version of the alleged place of performance of talb-i-muwathibat.
The learned Judge was also of the view that there was also a profound contradiction about the fact that who was the first to leave the place of alleged performance of talb-i-muwathibat after the said performance and who was left behind. He also found contradiction in the statements of P.W.5, P.W.6 and P.W. 7 to the effect that who amongst the alleged witnesses of talb-i-muwathibat went with the plaintiff to see him off. These contradictions were considered by the learned Civil Judge fatal for the right of pre-emption of the plaintiff, considering them major contradictions.
The major observation of the learned Civil Judge regarding notice talb-i-ishhad was that it was sent by the counsel of the plaintiff and he referred to Section 14 of the N.W.F.P. Pre-emption Act, 1987. The learned Civil Judge was of the view that the plaintiff failed to show any inability on his part to send the notices himself.
The learned District Judge was of the view that there was a deed copy Ex. D.W.1/2 between the parties, whereby they had agreed to sell their land in village Maidan of District Batagram and that the same would be sold to the cousins. He was also of the view that Faizullah Shah, informer was not examined, and he took adverse inference against the plaintiff. Ultimately the learned District Judge, Batagram, vide his judgment and decree granted on 29.4.2003 in Appeal No. 21/13 of 2002 instituted on 17.9.2002, dismissed the appeal of the present petitioner. Hence the civil revision in hand, which was contested by the respondent.
I heard the learned counsel for the parties and perused the record.
It is a proved fact, and admitted by the parties, that the parties are co-sharers in the suit property. This fact is proved from the copy of Fard Intikhab for the year 1997-98 in respect of the suit property. Ordinarily, the plaintiff and the defendant, would share the suit property in equal shares, if the plaintiff proved his case against the defendant. According to the statement of patwari halqa, supported by the Aust Panjsala Ex. P.W. 2/D-1, in the light of other Aust Panjsala Ex. P.W.2/8, the market value of the suit property comes to Rs. 51351/20 according to the first Aust Panjsala, while it comes to Rs. 38796/80 with reference to the second Aust Panjsala. The total land in this case in 3 kanals 7 marlas. The market value for it, at the rate of Rs. 51351.20 per kanal, being the highest rate as per Ex. P.W.2/D-1 produced by the defendant in the cross examination of the patwari halqa, is Rs. 1,72,026/52. The defendant failed to prove the payment of rupees five lacs (Rs. 5,00000/-) to the vendor by any reliable evidence, and also failed to show that why such exaggerated amount, instead of the above mentioned amount, was entered in the suit mutation. In the light of the evidence of the parties, specially the reliable evidence of the patwari Halqa, the market value of the suit property is Rs. 1,72,026/52. Half of the said amount comes to Rs. 86013/26, say Rs. 86100/-.
The contradictions regarding the siting of persons on charpois or otherwise, the entry of any of them as first, second or third to the room, the exact mention of the persons who went out to see off the plaintiff and of the persons who stayed back are mere details of the sitting/meeting in which talb-i-muwathibat was made. The basic questions to be ascertained are whether such a sitting or meeting was proved, whether information was received during such a sitting or meeting, and whether declaration of intention to pre-empt the suit property was made by the plaintiff. It has categorically been proved by the plaintiff that such a sitting/meeting occurred at the house of Syed Amjad Ali Shah, that information was received by the plaintiff there and that he made talb-i-muwathibat in the said sitting in the presence of witnesses. Other details of the said sitting are related to the memory of human beings, and each and every detail is not expected to be remembered by different persons. Different persons, generally, give different details of, even, a recent occurrence from different angles, according to their own observations, and it is never expected of human beings to give the exact version regarding details.
The informer is the first person to know that he has given information of sale of a property to the prospective pre-emptor. His evidence is important, specially, when he is the only person meeting the pre-emptor and giving information to him. He becomes the only person who heard the declaration of intention to pre-empt by the pre-emptor. The evidence of such informer is necessary and the Court may take an adverse inference against the pre-emptor when the plaintiff records only his statement with regard to information, and fails to produce the informer as his witness. But, those persons, who might have heard the passing of such information by the informer to the prospective pre-emptor, are also the first persons who are witnesses to the delivery of such information, and their evidence is also important. When such persons are produced by the pre-emptor/plaintiff as witnesses of the delivery of information, and they support the passing of information in their presence, if the informer is not produced, besides the statement of plaintiff pre-emptor a his own witness, there is no chance for the Court to take adverse inference against the plaintiff pre-emptor to the effect that the informer, if produced, would have denied the passing of such information. Such denial, even if made, could be rebutted by the evidence of the persons who had heard the passing of the said information, and the evidence of such denying informer and of the witnesses who had heard him while delivering such information will be weighed properly by the Court, without mere supposition or presumption.
Section 14 of N.W.F.P. Pre-emption Act, 1987 comes into play where a person is unable to make demands under Section 13. His guardian or agent may make the required demand on his behalf. Sub-section (3) of Section 13 of the above mentioned Act is as follows:--
"(3) Subject to his ability to do so, where a pre-emptor has made talb-i-muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under Section 32, or knowledge whichever may be earlier make Talb-i-ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vendee confirming his intention to exercise the right of pre-emption.........."
A counsel is neither the guardian nor an agent of a pre-emptor. He is the legal advisor of the pre-emptor and he acts under the instructions of the pre-emptor, for and instead of the pre-emptor. All the preparations of sending a notice have been made by the pre-emptor himself, and he gave instructions to his counsel to send the notice to the vendee, and the counsel acted under the instructions of the pre-emptor. Such sending of the notice by the counsel of the pre-emptor, for all practical purposes, was the sending of the notice by the pre-emptor, and there was no legal defect in such sending of the notice.
Once it is proved that the notice was sent by the counsel of the pre-emptor, like all other proceedings for the purposes of the suit of pre-emption, the counsel for the pre-emptor is executed to have acted for and instead of the pre-emptor, but on his instructions. It has never been prescribed that the pre-emptor should personally go to the post office, meet the concerned clerk, pay the official fee, and get the notices registered and sent to the vendee-defendant by the post office in his presence. It is enough that the pre-emptor takes steps to send the notices to the vendee-defendant, and such steps have been taken in this case by the pre-emptor himself.
There was a document between the parties regarding the sale of their own lands. But those lands have not been sold. The property in question is different from that property of the parties. There is no agreement between the parties that one of the party shall not pre-empt a property purchased by the other party, without the consent of the first party. The existence of the said deed has no relevance with the sale in question. I, therefore, hold that the plaintiff has properly made talb-i-muwathibat and talb-i-ishhad.
In the light of the above, I hold that the plaintiff petitioner is entitled to the decree for possession of half of the suit property though pre-emption. I, therefore, set aside both the impugned judgments of the learned Civil Judge and the learned appellate Court mentioned above, and I grant the decree as prayed for in favour of the plaintiff against the defendant to the extent of half of the suit property. The plaintiff shall have to deposit an amount of Rs. 86100/-, or its un-deposited part, in the Court of learned Civil Judge, Batagram, within one month from the date of announcement of this judgment, otherwise his suit shall stand dismissed on this score. The pre-emptor shall also have to pay half of the District Council fee and mutation fee paid by the vendee-defendant on official rates, at the time of the execution of the decree in his favour, when either the vendee-defendant/judgment debtor produces the actual receipts of payment of such fees, or the Executing Court ascertains the same otherwise.
(T.S. Faisal) Revision accepted
PLJ 2006 Peshawar 328
Present: Dost Muhammad Khan, J.
EMPLOYEES ACTION COMMITTEE, CHITRAL--Petitioner
versus
GOVT. OF PAKISTAN & others--Respondents
C.R. No. 100 of 2001 with C.M. No. 138 of 2001, decided on 26.6.2006.
Income Tax Ordinance, 1979 (XXXI of 1979)--
----S. 12--NWFP Civil Servant Act, 1973--Ss. 17, 25 & 26--Constitution of Pakistan, (1973)--Art. 247(3)--Exemption from Income Tax--Question of--Suit for exemption from payment, of income tax was dismissed--Assailed--Employees constitute one set up whether serving as member of a civil service of Province or that of Federal Government, irrespective of the place of their posting and territory where they were serving on posts either in department set up by Provincial or Federal Government--All Provincial or Federal Govt. employees on transfer to an area/territory where legislative authority of Parliament or Provincial Assembly do not extend in view of Article 247 (3), would not "ipso facto" take them out of the umbrella of Civil Servant Act enacted by Provincial or Federal Government because their terms and conditions of service like promotion, seniority, removal, termination, dismissal and retirement from service would still be governed and regulated by Acts and rules framed thereunder--They derive same benefits and have to face disciplinary actions for misconduct like others serving elsewhere excluding (PATA)--The terms and conditions of their service do not undergo a change on their transfer to (PATA)--Application of provisions of Civil Service law were not affected by territorial limits and borders barriers as these have direct nexus and link with civil servants employed under it--Every income derived through salary was chargeable to tax if it was paid by the Government or a local authority controlled by Government or if it has accrued in Pakistan irrespective of place of payment, thereof--The Statute, therefore, professes in unambiguous terms to impose and charge tax on income derived through salaries paid to Government servant whether he was posted within the taxable area to which Income Tax Ordinance was extended or he was serving beyond the frontiers of that area--Petition dismissed. [Pp. 332, 334] A & B
Mr. Said Rahman Khan, Advocate for Petitioner.
Mr. Eid Muhammad Khattak, Advocate for Respondent
Date of hearing : 26.6.2006.
Judgment
This single judgment shall also decide the following connected C.Rs because question of law to all these petitions are identical:--
(1) C.R. No. 593/98. Income Tax Officer vs. Dr. Inayat Yar etc.
(2) C.R. No. 485/2000. Income Tax Officer vs. Member Staff Association etc.
(3) C.R. No. 486/2000. Income Tax Officer vs. Sarhad Lecturer Association etc.
(4) C.R. No. 487/2000. Income Tax Officer vs. Dr. Hazrat Aleem etc.
(5) C.R.No. 488/2000. Income Tax Officer vs. Behram Khan etc.
(6) C.R. No. 387/2001. Income Tax Officer vs. C.B. etc.
(7) C.R. No. 389/2001. Income Tax Officer vs. C.B. Revenue etc.
In the instant petition, the petitioners (Employees Action Committee Chitral representing both the Federal and Provincial Governments Employees) have claimed exemption from payment of income tax, which is being deducted from their salaries under Section 12 of the Income Tax Ordinance, 1979. They filed a declaratory suit in representative capacity but their plaint was rejected by the trial Court, which was upheld by the District Court of Appeal.
The respondents/plaintiffs in C.Rs. Nos. 593/98, 387/2001, 485 to 489 of 2000 too had filed suits seeking decree of declaration and permanent injunctions against the levying and deduction of income tax from their monthly salaries, in the Court of Senior Civil Judge, Malakand at Batkhela which was allowed. Appeal filed there against was also dismissed. The subordinate Courts of different districts thus have depoted mutually inconsistent view on point of law.
Arguments heard in considerable detail, record and relevant law perused/examined.
Epitomestically, the claim of the petitioners (assessees) in the present case and respondents in the connected cases mentioned above, is that although they are Federal or Provincial Government employees serving in different Government Institutions within (PATA) and because the Income Tax Ordinance (No. XXXI of 1979) has not been extended to the area by the President of Pakistan under Sub-Article (3) of Article 247 of the Constitution of the Islamic Republic of Pakistan 1973, therefore, the Income Tax/Revenue Department is not authorized to deduct income tax from their monthly salaries. In other words they claim exemption from payment of income tax on the ground that they are serving within a special area where, the Income Tax Laws, are not enforced.
To the contrary, the Income Tax Officers/Inspectors of the concerned Circles have held them assessees in default and have issued notices to the concerned quarters i.e. Disbursing Officers to deduct at source the income tax from the salaries of all such government employees under Section 12 of the Income Tax, 1979.
All these civil suits seeking decree of declaration and permanent injunctions against the levying and deduction of income tax, were contested by the Income Tax Department, however, due to one reason or the other, the cases could not be decided within reasonable time rather disposal of the same was delayed to a shocking extent.
As mentioned above, the sole plea taken by Federal and Provincial Governments Employees has firmly been based on the ground that because at no occasion in the past or at present Income Tax Ordinance (No. XXXI of 1979) has been extended to PATA, therefore, they are exempt from payment of income tax and the same could not be deducted from their salaries. Considerable stress was laid on the plea that the Income Tax Ordinance has got no extra territorial operation/effects thus, none of its provision could be applied to PATA and on account of this legal aspect the government employees do not come within the tax net, therefore, the Court is not supposed to place a construction on the said provision to the contrary.
For the proper understanding of legal status of Government Servant, it is essential to make reference to the provisions of Civil Servants Act and the rules framed there-under.
(1) This Act may be called the North-West Frontier Province Civil Servants Act, 1973.
(2) This section and Section 25, shall apply to person employed on contract, or on work-charged basis, or who are paid from contingencies, and the remaining provisions of this Act including this section, shall apply to all civil servants wherever they may be.
(b) "civil servant" means a person who is a member of a civil service of the Province--(Rest not relevant).
Under Section 17 of the Provincial Civil Servants Act 1973, every civil servant appointed to a post shall be entitled, in accordance with the rules, to the pay sanctioned for such post.
Under Section 26 of the Act ibid, the Governor or any person authorized by the Governor in this behalf may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act. These rules, inter alia, shall provide for the terms and conditions of service of a civil servant.
On 31st January, 1989 while exercising the powers u/S. 26, the Governor of NWFP enacted and notified the NWFP Civil Servants (Appointment, Promotion and Transfer) Rules, 1989.
The provisions of Section 10 of the Act ibid, provides that every civil servant shall be liable to serve any where within or outside the Province, in any post under the Federal Government, or any Provincial Government or local authority, or a Corporation or body set up or established by any such Government. The only beneficial condition and safeguard provided therein, is that on transfer to the post outside the Province shall not be prejudicial or un-favourable to the terms and conditions of service of an employee/civil servant.
The combined study of the above provisions of the Act and the rules which correspond to the provisions contained in the Pakistan (Federal Civil Servants Act, 1973 and the rules framed there-under) in unequivocal terms convey the intention of the legislature that such employees constitute one composite body/organization/set up whether serving as member of a civil service of the Province or that of the Federal Government (Federation) irrespective of the place of their posting and the territory where they are serving on posts either in the department set up by the Provincial or Federal Government. Judged and seen from this aspect, all Provincial or Federal Government Employees on transfer to an area/territory where the legislative authority of the Parliament or the Provincial Assembly do not extend in view Article 247(3) would not "ipso facto" take them out of the umbrella of the Civil Servant Act enacted by the Provincial or Federal Government because their terms and conditions of service like promotion, seniority, removal, termination, dismissal and retirement from service would still be governed and regulated by the Acts and the rules framed thereunder. To explain in simple and ordinary words, they derive the same benefits and have to face disciplinary actions for misconduct like others serving elsewhere excluding (PATA). The terms and conditions of their service do not undergo a change on their transfer to (PATA). A careful study of the phrases, terms and words employed in the statutory law would show that civil service is one composite body/a single set up albeit the same consists of distinct and different cadres and posts. The application of the provisions of Civil Service Law are not affected by territorial limits and borders barriers as these have direct nexus and link with the civil servants employed under it.
Keeping in view the above legal position, the fundamental point in contest i.e. the deduction of income tax from the salaries of government employees serving in PATA now requires determination. True that the Income Tax Ordinance, 1979 has not been extended to the area within the meaning of Clause 3 of Article 247 of the Constitution of Islamic Republic of Pakistan, 1973 but as all government servants within the Province or serving under the Federation constitute one body/set up, the unescapable conclusion would be that they are liable to pay income tax on the income derived from salaries. For the correct/proper construction of the provision of Section 12 of the Income Tax Ordinance, 1979 the same is reproduced below:--
S. 12 Income deemed to accrue or arise in Pakistan: (1) Income which would be chargeable under the head "Salary" shall be deemed to accrue or arise in Pakistan, wherever paid, if it is earned in Pakistan, or if it is paid by, or on behalf of, the Government or a local authority in Pakistan to a person in the service of such Government or authority as the case may be.
Sub-section 2-----------------Not relevant.
The taxing Statute invariably contains three different types of provisions. The first part is called charging provision, which relate to the levy or charge of tax. It also provides the manner of imposing tax and the method of levying the same. The second one is assessment part, which controls and regulate the assessment, calculation and quantification of tax which becomes due and can be levied and recovered. It may be a new taking provision or an old one providing for discovering and calculation of escaped tax, which has either been not assessed or under assessed or over assessed where refund is permissible. The third limb relates to the recovery of tax assessed and determined, which is a machinery provision providing various means and methods for its recovery.
The provision of Section 12 of the Income Tax Ordinance, 1979 is a combination of all the three essential features, the same contains a deeming clause. It has provided for the charging of income tax on an income accrued in Pakistan to the residents and non-residents. The provisions of sub-section (1) of Section 12 of the Ordinance may be divided into three parts and for convenience sake it is arranged in the following pattern:--
(i) Income which would be chargeable under the head "Salary" shall be deemed to accrue or arise in Pakistan.
(ii) If it is earned in Pakistan, or
(iii) If it is paid by, or on behalf of, the government or a local authority in Pakistan to a person in the service of such Government or authority as the case may be.
And or if it is paid by, or on behalf of, the government or a local authority in Pakistan to a person in the service of such government or authority."
The fundamental aspect of the matter is that every income derived through salary is chargeable to tax if it is paid by the government or a local authority controlled by the government or if it has accrued in Pakistan irrespective of the place of payment thereof. The Statute, therefore, professes in uambiguous terms to impose and charge tax on the income derived through salaries paid to Government servant whether he is posted within the taxable area to which the Ordinance ibid is extended or he is serving beyond the frontiers of that area.
The charging provisions chase/follows the income of the government servant, which he receives from the government as a salary and it has no relevancy with the place of his posting. In other words the territorial barriers have no impact or effect on it.
For the payment of salaries, remuneration, grants, pensionary and other benefits to government servants, both the Federal and Provincial Governments allocate fund in the annual budget for this purpose which is then transferred to the Finance Division in the Federal Government and Finance Department in the Provincial Government and are placed in separate heads of accounts maintained for this purpose. Both the Federal and Provincial Governments have established exchequers/main treasuries at the provincial headquarters. It has created local treasuries and sub-treasuries at the District and Tehsil level with the view to facilitate timely disbursement/payment of salaries and other emoluments to the government servants but all the fund received by such local treasuries and sub-treasuries flow from the mean treasury situated/established at the Provincial or Federal capital, the main source of feeding, thus the necessary corollary is that the employees of the Federal and Provincial Governments for all intents and purposes derive and receive salaries from the Government Treasury which fact admits of no doubt. The Fundamental Rules of 1922 amended up to date and the General Financial Rules on the subject are clearer than crystal hence the petitioners herein and the respondents government servants in the connected C.Rs. mentioned above can not claim exemption from payment of income tax on the ground that they are being paid their salaries in PATA to which Income Tax Ordinance, 1979 has not been extended within the meaning of Sub-Clause (3) of Article 247 of the Constitution of Islamic Republic of Pakistan, 1973. They clearly come within the tax net provided by the provision of Section 12 of the Ordinance ibid hence deduction of income tax at source from their salaries is lawful and fully justified.
The Hon'ble Supreme Court in the case of Dr. Hafeez Sher Badshah, vs. ITO Circle-II Mardan and two others have held the following view:--
(2) "After hearing the petitioner in person, we find no force in the contention because under Section 12 (2) of the Income Tax Ordinance salary paid to a Government servant would be deemed to accrue or arise in Pakistan."
"Perusal of above provision manifestly discloses that every Government employee, receiving salary from Federal Government; Provincial Government or any local authority of Pakistan is bound to pay income tax at prescribed rate irrespective of his status of residence, place of posting or nature of work. The question about applicability of Income Tax Ordinance, 1979 in the tribal areas has absolutely no relevancy because, income tax deductions are based upon entitlement of persons for receiving salaries from State exchequer. Therefore, we are inclined to respectfully observe that reference to above-quoted judgment or bar under Article 247 of the Constitution while considering liability of Government Employees regarding payment of Income Tax has no nexus with the proposition under consideration. We, therefore, feel no difficulty in concluding that once Government employee is receiving his salary from State exchequer, he automatically becomes liable to pay tax on his income without any barrier of locality, place of service or nature of duties unless specially exempted."
The Delhi High Court of India in case of CIT vs. Air France Ltd. (2001 PTC 3701) was confronted with almost similar proposition of law. The assessee therein was a Company having Head Officer in France but paid salaries to some of its foreign employees posted in India which include the amount payable in France as "part of Franchise". However, the assessee did not deduct or deposit income tax amount u/S. 192 of the Act, which was detected by the Revenue Department during search of the premises of the assessee thus a penal interest u/S. 201 (i) (A) of the Indian Income Tax Act, 1961 was imposed. Appeal of the assessee was dismissed by the CIT, however, the Tribunal of Taxes deleted the penal interest so levied by the Assessing Officer and confirmed by the CIT (Appeals). It was held by the High Court that the Tribunal has committed no illegality and no question of law has been raised to be determined. The language of the judgment suggests that even offshore Companies paying salaries to its servants in India were under obligation to pay income tax at source.
The case law (CIT Peshawar vs. M/s Gul Cooking Coil and Vegetable Pvt. Ltd. (PLD 2003 614) cited at the bar is of no help to the assesses because the view held by the Hon'ble Supreme Court in the said case operates and it is based on different proposition of law and facts having no relevancy to the cases under consideration.
For what has been discussed above, all the Government servants whether serving in the Federal or Provincial Government or under the local authorities which are funded by the government exchequer are liable to pay income tax within the meaning of Section 12 on account of income derived through salaries, therefore, the assessment order/notices issued by the Income Tax Inspector/Officer of the Circle concerned for charging and levying income tax on their salaries is held to be lawful and valid. Resultantly this petition is dismissed but for different reasons as discussed above alongwith the C.M while C.R. 593/98, C.R. 387/2001, C.R. 485 to 489 of 2000 are allowed and the impugned judgments of the two Courts below decreeing suit of the respondents are set aside with no order as to cost. As intricate questions of law of debatable nature were involved and the default committed does not appear to be contumacious or deliberate one, therefore, the Income Tax Authority is expected to judge the cases of the assessees in default in a considerate manner in the matter of imposing penal interest.
(T.S. Faisal) Petition dismissed
PLJ 2006 Quetta 1
Present: Raja Fayyaz Ahmed, C.J.
ABDUL SHAKOOR and 3 others--Petitioners
versus
DAD KHAN and 7 others--Respondents
Civil Revision No. 188 of 1999, decided on 3.5.2000.
Balochistan Civil Disputes (Shariat Application) Regulation, 1976--
----Arts. 4(2) & 3--Civil Procedure Code (V of 1908), O. XLIII & S. 115--Majlis-e-Shoora being Appellate Court simultaneously enjoys the revisional powers by virtue of Art. 4(2) of Balochistan Civil Disputes (Shariat Application) Regulation, 1976--Principles--By virtue of Art. 4(2) of the Balochistan Civil Disputes (Shariat Application) Regulation, 1976 it has been provided that every Majlis-e-Shoora would be deemed to be a District Court within the meaning of the Code (C.P.C.) therefore, such of provisions of the Regulation would be read in conjunction with the provisions of Art. 3 of the Regulation which provides that notwithstanding anything contained in the Regulation the provisions of C.P.C. would apply to the proceedings under the Regulation; required effect whereof would be that the Majlis-e-Shoora simultaneously being the District Court within the meaning of C.P.C. would have jurisdiction to exercise revisional powers as a District Court within the purview of S. 115, C.P.C. in case of an interlocutory order not made appealable by any of the provisions of C.P.C. Majlis-e-Shoora while dealing the matter about the competency of the appeal failed to take notice of the provisions of Art. 4(2) of the Regulation whereby for the purposes of the Regulation, every Majlis-e-Shoora had been declared to be a District Court within the meaning of Civil Procedure Code and redundancy to such provisions of the Regulation could not be attributed, accordingly. Since order passed by the Qazi was not appealable within the purview of Order XLIII, C.P.C., same could have been validly assailed by filing revision under S. 115, C.P.C. before the Majlis-e-Shoora, and the Appellate Court, in exercise of inherent powers vesting in it under S. 115, C.P.C., had converted the same into revision in the interest of justice, but the Appellate Court dismissed the appeal and by holding that the revisional powers were not available to the Majlis-e-Shoora, despite the fact that every Majlis-e-Shoora under the aforesaid provisions of the Regulation had been declared to be a `District Court', and the Majlis-e-Shoora being Appellate Court simultaneously enjoyed the revisional powers by virtue of Art. 4(2) of the Regulation. [Pp. 5 & 6] A & B
Mr. K.N. Kohli, Advocate for Petitioners.
Mr. Khushnood Ahmed, Advocate for Respondents.
Date of hearing : 4.11.1999.
Judgment
This civil revision under Section 115, C.P.C. has been directed against impugned order dated 20.6.1998 passed by Qazi Muslim Bagh whereby the application filed by the petitioners for execution of the decree has been dismissed by the learned Counsel and against order dated 22.6.1999 passed by learned Majlis-e-Shoora, Loralai dismissing the appeal of the petitioners filed against the above said order of the learned Qazi Muslim Bagh.
The brief facts of the case are that the petitioners filed suit for declaration, ejectment and perpetual injunction against the respondents in the Court of Qazi Muslim Bagh in respect of property bearing Khasra Nos. 583, 585, 591, 561 and 593 measuring 50 rods and 13 pols situated in Mahal and Mouza Jungle, Tappa Babu Cheena, Sub-Tehsil Loy-band, District Killa Saifullah and during the course of proceeding of the suit, the parties agreed to resolve the dispute through arbitration accordingly one Moulvi Taj Muhammad was appointed by the parties to act as sole arbitrator for resolving the dispute according to `Sharia' who ultimately delivered his award on 10.2.1986. The award made by arbitrator was filed in the Qazi Court, Muslim Bagh and the learned Court ultimately decreed the suit in favour of the petitioners on 12.2.1986. The case of the petitioners is that pursuant to the award and the decree passed by the learned Qazi Muslim Bagh, the suit property was transferred in the names of the petitioners/decree holders vide Mutations Nos. 35 and 37 and the judgment debtors/respondents also made a statement on 23.3.1989 before the Naib Tehsildar Loy-band acknowledging and accepting the ownership of the petitioners about the suit property. The grievance of the petitioners was that despite attestation of the above mutations in their favour, physical possession of the land in question decreed in their favour was not delivered to them therefore, application for execution of the decree passed by the learned Qazi Muslim Bagh was filed on 4.5.1994 in the said learned Court and the learned Qazi Muslim Bagh vide order dated 16.9.1997 dismissed the execution application. The petitioners/decree holders feeling themselves aggrieved of the above said order filed appeal in the Court of learned Majlis-e-Shoora, Loralai, which remanded the matter to Qazi Muslim Bagh for decision afresh to be made in accordance with law by means of order dated 7.3.1998, and; ultimately the learned Qazi Muslim Bagh again vide impugned order dated 20.6.1998 dismissed the application of the petitioners and the petitioners assailed the said order by filing appeal in the Court of learned Majlis-e-Shoora, Loralai which too has been dismissed by the learned Appellate Court by means of order dated 22.6.1999 and both these orders have been assailed in the instant petition.
I have heard the learned counsel for the parties at length. Mr. K.N. Kohli contended that in the circumstances of the case the order impugned in appeal before the Majlis-e-Shoora, Loralai since was not appealable within the purview of Order XLIII, C.P.C. therefore, in all fairness and in the interest of justice the learned Appellate Court to have treated the appeal as revision under Section 115, C.P.C. and thereafter, to have decided the same on its own merits in accordance with law, but the learned Appellate Court without attending to such aspect of the case dealt with the matter technically and dismissed the appeal as being not maintainable. According to Mr. K.N. Kohli notwithstanding the provisions of Balochistan Civil Disputes (Shariat Application) Regulation, 1976 since the Civil Procedure Code has been made applicable under the Regulation, therefore, in the exercise of inherent powers vesting in the Appellate Court appeal filed by the petitioners to have been converted into revision, but the learned Majlis-e-Shoora in the improper exercise of jurisdiction vested in it wrongly and illegally by taking technical conclusions passed the impugned order, therefore, according to the learned counsel the same is liable to be interfered with and the matter be remanded to the Majlis-e-Shoora for deciding the same afresh by treating the appeal of the petitioner as revision against the order passed by the learned Qazi Muslim Bagh.
Mr. Khushnood Ahmed in view of provisions of Article 3 of Shariat Application Regulation submitted that since Code of Civil Procedure was made applicable under the Regulation notwithstanding the provisions of the Regulation and the order passed by the learned Qazi has since was not made appealable within the purview of Order XLIII, C.P.C. hence according to the learned counsel appeal filed by the petitioner before the Majlis-e-Shoora was not competent nor was maintainable, thus, the same was appropriately dismissed by the learned Appellate Court for want of jurisdiction. The learned counsel further contended that no request for conversion of appeal into revision was made by the petitioner therefore, the learned Appellate Court rightly passed by the impugned order.
I have considered the contentions put forth on behalf of the parties learned counsel in the light of the impugned order. Undisputedly Balochistan Civil Disputes (Shariat Application) Regulation, 1976 has been made applicable to the area where the subject-matter of dispute is situate and the suit instituted by the petitioners was also adjudicated upon under the said Regulation and ultimately the same was decreed in terms of the award, by the Qazi Muslim Bagh on 12.2.1986. Subsequently; the suit property was transferred in the names of the petitioners/decree holders vide Mutations Nos. 35 and 37 and grievance of the petitioners is that despite attestation of the above said Mutation, physical possession of the suit land was not delivered to them, consequently; they filed application for execution of the decree in the Court of Qazi Muslim Bagh and the learned executing Court dismissed the execution application. However, such order was set aside by the learned Majlis-e-Shoora, Loralai and the matter was remanded to the Qazi Muslim Bagh for decision afresh in accordance with the law, and; ultimately the learned Qazi Muslim Bagh vide order dated 20.6.1998 dismissed the application of the petitioners seeking for execution of the decree. This order was assailed by the petitioners by filing appeal in the Court of learned Majlis-e-Shoora Loralai. The learned Appellate Court vide order impugned herein dismissed the appeal of the petitioner on the ground that since the order passed by the learned Qazi Muslim Bagh has not been made appealable within the meaning of Order XLIII, C.P.C. therefore, the same is immune from being assailed by filing appeal and under scheme of the Regulation revisional powers being not available to the Majlis-e-Shoora, Loralai consequently; the learned Court dismissed the appeal of the petitioners. I have considered the contentions of the parties learned counsel in the light of the provisions of Balochistan Civil Disputes (Shariat Application) Regulation, 1976 hereinafter referred to as the Regulation and the impugned orders passed by the Courts below including the documents available on record. Bare perusal of the provisions of Article 3 of the Regulation reveals that notwithstanding anything contained in the Regulation, the provisions of Code of Civil Procedure have been made applicable to the proceedings under the Regulation, consequently; the provisions of Sub-Clause (b) of Clause (1) of Article 4 of the Regulation which provides that Majlis-e-Shoora shall be the First Appellate Court in respect of judgments, decrees and orders of Court of Qazi will not come in conflict with the provisions of Article 3 of the Regulation and therefore, the order passed by the Qazi Court Muslim Bagh being not appealable within the meaning of Order XLIII, C.P.C. was immune from being attacked in appeal in the light of the above said provisions of Article 4(1)(b) of the Regulation, and; therefore, the learned Majlis-e-Shoora appropriately held that the order passed by the Qazi Muslim Bagh was not made appealable by Order XLIII, C.P.C. and thus; rightly treated the appeal filed by the petitioner to be not maintainable, but all the same the learned Majlis-e-Shoora held that since the revisional powers under C.P.C. are not available to it therefore, the learned Court dismissed the appeal. It may be seen that by virtue of Clause (2) of Article 4 of the Regulation it has been provided that every Majlis-e-shoora shall be deemed to be a District Court within the meaning of the Code (C.P.C.) therefore, such of the provisions of the Regulation shall be read in conjunction with the provisions of Article 3 of the Regulation which provides that notwithstanding anything contained in the Regulation the provisions of C.P.C. shall apply to the proceedings under the Regulation; required effect whereof would be that the Majlis-e-Shoora simultaneously being the District Court within the meaning of C.P.C., shall have the jurisdiction to exercise revisional powers as a District Court within the purview of Section 115, C.P.C. in case of an interlocutory order not made appealable by any of the provisions of C.P.C. It appears that the learned Majlis-e-Shoora while dealing with the matter about the competency of the appeal failed to take notice of the provisions of Clause 2 of Article 4 of the Regulation whereby for the purposes of the Regulation, every Majlis-e-Shoora had been declared to be a District Court within the meaning of Civil Procedure Code and redundancy to such provisions of the Regulation cannot be attributed, accordingly, I am of the considered view that the order passed by the Qazi Muslim Bagh since was not appealable within the purview of Order XLIII, C.P.C. Therefore the, same could have been validly assailed by filing revision under Section 115, C.P.C. before the learned Majlis-e-Shoora, Loralai and the learned Appellate Court to have in exercise of inherent powers vesting in it under Section 115, C.P.C., converted the same into revision in the interest of justice, but the learned Appellate Court dismissed the appeal as above said and by holding that the revisional powers are not available to the Majlis-e-Shoora, despite of the fact that every Majlis-e-Shoora under the aforesaid provisions of the Regulation has been declared to be a `District Court', and, in my considered view the Majlis-e-Shoora being Appellate Court simultaneously enjoys the revisional powers by virtue of Clause (2) of Article 4 of the Regulation.
Thus; for the foregoing reasons the impugned order passed by learned Majlis-e-Shoora is set aside with the direction that the appeal filed by the petitioners be treated as revision against the order passed by Qazi Muslim Bagh and be disposed of on its own merits in accordance with law after hearing the parties. Resultantly, this revision is allowed partly in the above terms leaving the parties to bear their own costs.
(R.A.) Revision partly allowed
PLJ 2006 Quetta 6 (DB)
Present: Raja Fayyaz Ahmad, C.J. and Ahmad Khan Lashari, J.
C & W DEPARTMENT through Secretary--Appellant
versus
Messrs KHAN CONSTRUCTION COMPANY through owner REHMATULLAH KHAN--Respondent
R.F.A.O. No. 14 of 2000, decided on 25.4.2002.
Civil Procedure Code, 1908 (V of 1908)--
----O. VIII, R. 10 & O. VII, R.2--Suit for recovery--Failure of written statement--Ample opportunities were provided for filing written statement by trial Court affording opportunity to the defendant to file written statement and finally, subject to payment of cost, opportunity was afforded on the request of District Attorney to file written statement; yet not filed and trial Court, instead of exercising discretion by making any other order in relation to the suit within the purview of later part of O.VIII, R. 10, C.P.C., resorted to penal provision of O. VIII, R. 10, C.P.C.--Validity--Held: Discretion resting in Court to pronounce the judgment against defendant on failure to file written statement is not mandatory and matter being also discretionary, penalty was not to be imposed without compelling reasons and that too without satisfaction of Court regarding same being good case on merits for doing so--Judgment was to be pronounced under first part of O.VIII, R. 10, C.P.C. in rare cases where on account of material placed on record it would be legal, just and fair to do so--Moreover; such provisions being penal in nature, same are not to be strictly followed--Trial Court, in the present case, had not recorded any reason of its satisfaction about the claim of the plaintiff being just, fair, genuine and legal nor even did it take into account the averments made in the plaint, inasmuch as, none of the documents in support of the claim appended with the plaint was taken into consideration and passed the decree against the defendant without any application of mind in relation to the facts of the case as regards the claim of the plaintiff for recovery of amount plus past and future mark-up prevalent bank rate and an absolute non-speaking order was passed which consequently, rendered the judgment/decree as illegal and unsustainable which was set aside--Case was remanded to trial Court and a final opportunity subject to payment of cost was given to the defendant for filing written statement in trial Court on specified date. [Pp. 8 & 9] A, B & C
1987 SCMR 1365 fol.
Mr. Ghulam Mustafa, Asstt. A.-G. for Appellant.
Mr. Azmat Khan Kasi, Advocate for Respondent.
Date of hearing : 11.4.2002.
Judgment
Raja Fayyaz Ahmad, C.J.--This first civil appeal under Section 96, C.P.C. has been directed against the judgment and decree dated 28.3.2000 passed by the learned Senior Civil Judge II, Quetta in Civil Suit No. 152 of 1999 whereby the suit instituted by the respondent against the appellant for recovery of Rs. 38,63,157 with markup at the prevailing bank rate has been decreed against the appellant/defendant under Order VIII, Rule 10, C.P.C.
The learned Asstt. A.-G. as well as the learned counsel for the respondent have been heard at length. Mr. Ghulam Mustafa Mengal contended that in the given facts and circumstances of the case there was complete justification on the part of the defendant to seek further adjournment for filing of written statement and secondly, while pressing the penal provisions of Order VIII, Rule 10, C.P.C. the learned trial Court to have passed a speaking judgment by taking into consideration the averments of the plaint as well as the documents appended with the plaint in support of his claim, but the learned Court by hypertechnically applying the penal provisions without application of mind and by not taking into consideration the entitlement, if any; of the respondent/plaintiff for the decretal amount, decreed the suit in favour of the plaintiff, and thus the powers vested in the Court were not exercised in accordance with law, which consequently, render the impugned judgment and decree as not sustainable. He further argued that the case be remanded to the learned trial Court with the direction to provide a final opportunity in the interest of justice enabling the appellant/defendant to file written statement.
Mr. Azmat Kasi on the strength of provisions of Order VIII, Rule 10, C.P.C. strenuously argued that since simple opportunities for filing of written statement was afforded but the defendant failed to file written statement, hence; the learned trial Court appropriately and in the lawful exercise of powers decreed the suit as prayed for against the defendant and no exception in the circumstances of the case to the validity and legality of the impugned decree is available.
The contentions put forth by the parties' learned counsel have been considered in the light of the judgment/decree, gone through carefully including the provisions of Order VIII, Rule 10, C.P.C. Perusal of the impugned judgment and the relevant order-sheets show that on 10.12.1999 suit was directed to be registered by the learned Senior Civil Judge-II, Quetta (hereinafter referred to as the trial Court) and summons for the defendant was issued for 18.12.1999 on which date District Attorney Mr. Abdul Baqi appeared for the defendant and the learned trial Court adjourned the case to 24.12.1999 for filing of written statement but the written statement was not filed on 24.12.1999 and the case was adjourned to 15.1.2000 for filing of written statement, but on this date too written statement was not filed and the learned trial Court adjourned the case to 23.2.2000 for filing of written statement. On the forth date i.e. 23.2.2000 fixed for filing of the written statement, a written request was made by the representative of the defendant/Assistant Director for adjournment that Executive Engineer, Uthal was asked to submit a comprehensive report in the matter which is under the process of finalization of reply and since the suit pertains the claim of a huge amount hence needs to be scrutinized properly. The request so made was accepted by the learned trial Court with the observation that further opportunity will not be granted, accordingly; the defendant was directed to file written statement on 20.3.2000, but still on the date fixed in the matter i.e. 20.3.2000 written statement was not filed and on the request of District Attorney last opportunity for filing of written statement subject to cost of Rs. 200 was granted and the case adjourned to 28.4.2000 but on this date too written statement was not filed by the appellant/defendant, consequently the learned trial Court vide judgment impugned herein decreed the suit as prayed for against the defendant by pressing the penal provisions of Order VIII, Rule 10, C.P.C. into service. The judgment passed by the learned trial Court is reproduced hereinbelow in extenso:--
Admittedly, ample opportunities as noted hereinabove were provided to the defendant for filing of written statement as five dates were fixed in the matter for the purpose and for four times case was adjourned by the learned trial Court affording opportunity to the defendant to file written statement and finally subject to payment of cost opportunity was afforded on the request of the District Attorney to file written statement, yet, the same was not filed and the learned trial Court instead of exercising discretion by making any other order in relation to the suit within the purview of latter part of provisions of Rule 10 of Order VIII, C.P.C. opted for by resorting to penal provisions of first part of Rule 10, C.P.C. in decreeing the suit in favour of the respondent/plaintiff without satisfying itself as to the genuineness of the claim and the material placed before the Court justifying for passing the decree against the defendant. As regards the application of penal provisions of Order VIII, Rule 10, C.P.C. the Honourable Supreme Court in the case of Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others reported in 1987 SCMR 1365, held that the discretion vesting in the Court to pronounce the judgment against the defendant on failure to present the written statement is not mandatory and matter being also discretionary, penalty not to be imposed without compelling reason and that too without satisfaction of Court regarding it being good case on merits for doing so and judgment to be pronounced under first part of Rule 10, Order VIII, C.P.C. in rare cases when on account of material placed on record it would be legal, just and fair to-do-so, moreover; such provisions being penal in nature the same is not to be strictly followed. Applying the rule laid down by the Honourable Supreme Court it is abundantly clear from the impugned judgment that the learned trial Court did not record any reason of its satisfaction about the claim of the plaintiff being just, fair, genuine and legal nor even did it take into account the averments made in the plaint, inasmuch as, none of the documents in support of the claim appended with the plaint was taken into consideration and passed the decree against the defendant/appellant without any application of mind in relation to the facts of the case as regards the claim of the plaintiff for the recovery of amount plus the past and future markup at the prevalent bank rate is concerned, an absolute non-speaking order was passed which consequently; renders the impugned judgment/decree as illegal and unsustainable, accordingly; the same is set aside with the result that the case is remanded to the learned trial Court and a final opportunity subject to the payment of cost of Rs. 5,000 is given to the appellant/defendant for filing of written statement in the learned trial Court on 16.5.2002. Appeal stands partly allowed in the above terms with no order as to costs. Decree sheet be prepared accordingly.
(R.A.) Order accordingly
PLJ 2006 Quetta 9 (DB)
Present: Raja Fayyaz Ahmed, C.J., and Akhtar Zaman Malghani, J.
MUJTABA--Petitioner
versus
RAZIA and 2 others--Respondents
Constitutional Petitions Nos. 74 and 196 of 2004, decided on 2.11.2004.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----Ss. 5 & 9--Sched.--Constitution of Pakistan (1973), Art. 199--Suit for dissolution of marriage, recovery of dower amount, maintenance allowance and for the custody of the minors against the petitioner--Ex parte decree was passed against the petitioner--Defendant, at the time of passing of ex parte decree, was in judicial lock up--Even in civil proceedings, if an order, be it a final or interlocutory, adverse to interest of any party concerning his rights in personam or in rem had been passed and if such person be in jail, he had to be informed accordingly, through the Superintendent of jail--No such information, was conveyed to defendant (petitioner) in respect of decree, therefore, it could not be assumed, in absence of other material, that he had active knowledge of the ex-parte decree passed against him nor even application submitted before Appellate Court seeking condonation of delay in appeal beyond prescribed period of limitation was contested by the plaintiff by filing counter affidavit--Such aspect of the case germane to question of limitation was not attended to by the Appellate Court nor validity or legality of impugned decree based upon proceedings ordered to be taken ex parte, were taken into consideration by Appellate Court, which consequently rendered its judgment and decree as not sustainable--Order passed by the Family Court whereby the defendant was ordered to be proceeded ex parte was a nullity in eye of law, void and without jurisdiction--Subsequent proceedings taken in case and ex parte decree passed in consequence thereof also were without any legal effect and that being so, made the question of limitation pertaining to the filing of appeal as worthless and to no credence--High Court, set aside the said orders declaring same to be of no legal effect--Suit instituted by plaintiff as ordered to be expeditiously decided as provided by law after hearing the parties--Defendant, subject to the final decision by the Family Court, was directed to deposit with the Family Court interim maintenance at the rate of Rs. 1200 per month w.e.f. the specified date for the three minors/daughters of the spouses presently in the custody of their mother (plaintiff). [P. 11, 12, 13, 14, 15] A, B, C, D, E, F, G & H
Mr. Qahir Shah, Advocate for Petitioner.
Mr. Iftikhar-ul-Haq, Advocate for Respondents.
Date of hearing: 27.10.2004.
Judgment
Raja Fayyaz Ahmed, C.J.--As both the Constitutional Petitions Nos. 74/2004 and 196/2004 arise out of a common judgment and decree dated 14.11.2003 passed by the Family Judge-II, Quetta in Family Suit No. 186 of 2003 and the appellate judgment decree dated 8.4.2004 passed by the learned Additional District Judge-V, Quetta, therefore, these Constitutional Petitions are decided by this common order.
The brief facts of the case are that in the month of September, 2003 the respondent lady instituted suit for dissolution of marriage, recovery of dower amount, maintenance allowance and for the custody of the minors against the petitioner, which came up for hearing before the Family Judge-II, Quetta, registered as Civil Suit No. 186 of 2003. It has been contended in the suit that the respondent was married to the petitioner about eight years back and out of wedlock four daughters took birth, out of whom one had died later on, but unfortunately the petitioner and his family members frequently maltreated her and she was leading a miserable life with the petitioner, who was also found to be an addict of narcotics and never cared to discharge his marital obligations and in order to extract money from her father she was treated with utmost cruelty and also at times blackmailed her father and never any maintenance allowance was provided to her by the petitioner nor she and the minors were properly maintained and looked-after, inasmuch as; despite demand the meagre amount of prompt dower amount of Rs. 2,000 was not paid to her.
After registration of the case summon was issued to the petitioner/defendant of the institution of the suit, which was served on the petitioner and on the date fixed in the summons i.e. 17.10.2003 he was absent and no one appeared on his behalf before the learned Family Court. Copy of the summons served on the petitioner has not been filed with the memo. of petition, however, order-sheet of even date shows that it was brought to the notice of the Court that the defendant has been confined in the Jail, accordingly; the learned Family Judge directed the learned counsel for the respondent to provide process-fee for issuance of the Murasila to the Jail Authorities for the production of the petitioner/defendant before the Court and the case was adjourned to 24.10.2003. On the date fixed in the matter i.e. 24.10.2003, the defendant was produced from District Jail, Quetta in judicial custody before Court to whom copy of plaint was supplied and the case was adjourned to 3.11.2003 for filing written statement. For this date production warrant of the defendant was not issued to the Superintendent, District Jail, Quetta. On account of the absence of the defendant when the case was taken up for hearing he was ordered to be proceeded ex parte. Accordingly, case was fixed for 10.11.2003 for ex parte evidence of the respondent/plaintiff. The sworn-in-affidavit of the plaintiff, her witnesses namely Abdullah and Nawab Khan were filed by way of ex parte evidence on 14.11.2003 and the learned Family Court in view of the affidavits filed before it, decreed the suit for dissolution of marriage on the ground of Khula' in favour of the respondent, who in consideration thereof offered to relinquish her claim of prompt dower amount, consequently; the suit to extent of recovery of dower amount was dismissed, whereas the past maintenance allowance from November, 2000 till the completion of Iddat period of the respondent, decree in her favour and the claim for the maintenance allowance of the minor daughters at the rate of Rs. 500 per month for each of the daughter till they each attain the age of puberty and remain in the custody of their mother was decreed in favour of the plaintiff.
The judgment and decree except to the extent of dissolution of marriage being not appealable, was assailed by the petitioner by filing appeal on 12.2.2004 in the Court of learned District Judge, Quetta which was transferred on the file of learned Additional District Judge-V, Quetta being Family Appeal No. 12 of 2004. Alongwith the memo. of appeal a miscellaneous application seeking for condonation of delay in filing the appeal beyond the prescribed period of limitation was also filed on the ground that for the last five months he has been confined in the Jail and a close relative of the applicant a few days back informed to him in the jail about the decree passed by the learned Family Judge and with the assistance of his said relative the applicant preferred appeal without any further loss of time through his counsel, who on obtaining copies of the relevant documents and ex parte decree filed appeal within the prescribed period of limitation on acquiring knowledge about the same, as above said. Both these decrees i.e. ex parte decree for dissolution of marriage and the ex parte decree relating to the maintenance allowance of the respondent and her minor children have been assailed in the above said Constitutional Petitions.
The learned counsel for the petitioner as well as Mr. Iftikhar-ul-Haq, Advocate for the Respondent No. 1 have been heard. The learned counsel for the petitioner contended that immediately after institution of the suit by the respondent against the petitioner written complaint was filed on 21.9.2003 by the respondent with the S.H.O./P.S. Industrial Area, Quetta under Sections 107/151, Cr.P.C. pursuant to which the petitioner was arrested and committed to judicial lock-up and on 22.9.2003 in the light of the report, complaint was forwarded by the S.H.O. of the Police Station bearing No. 104/06-3 under Sections 107/151, Cr.P.C. to the Court of learned Judicial Magistrate of the area, but due to weak financial position the petitioner failed to furnish the requisite surety, as such; he remained confined in the prison even quite sometime after the filing of appeal, hence; in such circumstances as he was not in contact with any person, relative or friend outside the Jail nor any person during this period visited the Jail to see him, hence; during this period throughout he remained precluded to defend the family suit filed against him nor he was even ordered to be produced before the Family Court for filing the written statement and had he been ordered to be produced; he must have contested the same or at least to have made statement on oath to controvert the allegation of facts, hence; the ex parte order and the decree consequently passed by the learned Family Court on the basis of ex parte evidence is a nullity in the eye of law. Moreover; it was obligatory on the part of the learned Judge to have provided opportunity to the petitioner to defend the proceedings but such right has been denied to him, although; on the first date of hearing he was ordered to be produced before the Court from Jail but on this date, only copy of the plaint was supplied to him and being an illiterate could not on his own foresee the consequences of the launched proceedings, remained under the impression that he will again be produced before the Court, but for want of production warrant issued by the Family Judge, he was not produced before Court with the result that proceedings were drawn ex parte and eventually the impugned decree was passed. Further the learned counsel submitted that as one of the relatives of the petitioner sometime after passing of the ex parte decree came to see him in the jail and informed to him about the ex parte decree, he without any loss of time requested to him to appoint an Advocate on his behalf and to challenge the decree, who did so and appeal after obtaining copies of the impugned order was preferred but the same was dismissed on the point of limitation, although; delay in filing the appeal was condonable as on obtaining copy of the impugned decree the same as filed within the prescribed period of limitation and no time was wasted on receipt of information about the ex parte decree for obtaining copies of the relevant documents, but the learned Appellate Court without taking into consideration the material and relevant facts dismissed the appeal nor the learned Appellate Court examined the validity and legality of the order for taking ex-parte proceedings and the decree eventually passed as a result of such proceeding, hence; the impugned decrees are liable to be set aside.
On the other hand, the learned counsel for the respondent by controverting the arguments put forth on behalf of the petitioner submitted that since the petitioner/defendant in the suit was served with the summon issued by the Family Court and he was also produced before the Court therefore, in case he wanted to contest the suit could have easily filed his written statement through the Superintendent of the Jail but such permissible course was since not followed, being obviously not interested to defend the proceedings hence, he has been precluded to question the validity and legality of the ex parte and appellate decree passed on the basis of the ex parte evidence, which remained unrebutted and for such reason the impugned appellate judgment/decree is also unexceptionable as the delay in filing the appeal beyond the prescribed period of limitation was not condonable, however; the learned counsel conceded that till sometime after the filing of appeal the petitioner was in custody in the District Jail, Quetta in connection with the report lodged by the respondent under Section 107, Cr.P.C.
The arguments put forth on behalf of the parties have been considered in the light of the documents including order-sheets of the case, maintained by the learned Family Court. It is an admitted position that summon for the first date fixed for filing of written statement i.e. 17.10.2003 was served on the defendant through the Superintendent of the Jail, but as warrant for his production was not issued therefore, obviously he could not have been present before the Court unless produced. In the ordinary course within the meaning of
Section 9(1) of the Family Courts Act, 1964 the defendant in a family suit is supposed to appear in person and to file his written statement. The order-sheet of even date i.e. 17.10.2003 indicates that the learned Family Judge was conscious of the provisions of the sub-section (1) of
Section 9 of the Act, therefore, directed that Murasila be issued to the
Superintendent of the Jail to produce the defendant/petitioner on 24.10.2004 before the Court and pursuant to the Murasila so sent to the Superintendent of the Jail, the petitioner was produced before the learned Family Court on 24.10.2003 to whom copy of the plaint as supplied, but he was not asked as to whether he wants to file written statement and intends to contest the suit or has any defence to make nor he was allowed any opportunity to go through the plaint or was apprised of the claim, made in the suit, as such; the object and the purpose to file his written statement to provide opportunity to the party to admit, deny or partially admit the claim of the plaintiff, as the case may be; stood frustrated as the learned Court simpliciter adjourned the case for filing of written statement to 3.11.2003 on which date on account of absence of the petitioner/defendant he was ordered to be proceeded ex parte. In the instant case the petitioner could not have been marked as absent' for the obvious reason that such attributed act on his part cannot be termed asvoluntary' in view of the fact that his movements were physically restricted having been confined in the Jail nor at his option he could have been produced before the Family Court on the above said date for which he was not directed to be produce nor as above said, the Court inquired from the defendant when he was produced in the Court to whom copy of plaint was supplied, if he wants to contest the same or otherwise. Secondly, it is pertinent to note that copy of the plaint was not appended with the summon issued to him initially by the
Family Court otherwise there as no occasion to supply him the copy of the plaint for the second time when he was produced in the Court pursuant to the production warrant, hence, for this reason as well even without being asked by the Court, the petitioner on his own could not have and by stretch of any probability abruptly submitted in Court, expressing his intention to defend the suit or as the case may be, hence; in such eventuality it was obligatory for the Court to have not acted in a manner or taken the proceedings likely to result in depriving the defendant to answer the claim which in view of the admitted facts as per order-sheets maintained in the case referred to above was, declined to him despite of the fact that a defendant in the suit/case is entitled to be provided reasonable opportunity to answer the claim under the law. Even without directing the Superintendent of the Jail to produce the defendant before the Court on 7.11.2003 enabling him to file written statement, the learned Judge Family Court could have adopted the easiest permissible course by informing the defendant that he could file his written statement by delivering the same to the Superintendent of the Jail or to any other concerned
Officer of the jail for onward transmission to the Court, but it is astonishing to note that none of the permissible course was resorted to by the learned
Court and being fully conscious of the fact that physical movements of the defendant were restricted to Jail, yet; with a very narrow compass and subjective approach to the provisions of sub-section (1) of Section 9 of the
Family Courts Act, physical non-appearance of the defendant on the date fixed for the filing the written statement was treated as `voluntary absence' of the defendant on account of which he was ordered to be proceeded ex parte, pursuant to which ex parte evidence was produced as a consequence whereof ex parte decree was passed, which obviously resulted into defeating the object and the statutory provisions of the law by not providing fair and reasonable opportunity to the defendant to answer the claim, hence; in our considered view the order dated 7.11.2003 for taking ex parte proceedings against the defendant and the ex parte decree passed in consequence thereof is a nullity in the eye of law. As admittedly at the time of the passing of the ex parte decree the defendant was confined in jail therefore, even in the civil proceedings, if any; order, be a final or interlocutory adverse to the interest of any party concerning his rights in person or in rem has been passed and if be such person in jail has to be informed accordingly; through the Superintendent of Jail, but in this case, no such information was conveyed to the defendant in respect of the impugned decree, therefore, it cannot be assumed in absence of any other material that he had active knowledge of the ex parte decree passed against him nor even the application submitted before the Appellate Court seeking for condonation of the delay in filing the appeal beyond the prescribed period of limitation was contested by the respondent by filing counter affidavit, therefore, the grounds urged in the application for condonation of the delay remained unrebutted, but such aspect of the case germane to the question of limitation was not attended to by the learned Appellate Court nor the validity and legality of the impugned decree based upon the proceedings ordered to be taken ex parte were taken into consideration by the appellate Court, which consequently render the impugned appellate judgment and decree as not sustainable. Moreover as hereinabove discussed the order dated 7.11.2003 passed by the Family Judge whereby the defendant was ordered to be proceeded ex parte is a nullity in the eye of law, void and without jurisdiction, consequently; the subsequent proceedings taken in the case and the ex parte decree passed in consequence thereof also are without any legal effect and this being so, makes the question of limitation pertaining to the filing of appeal as worthless and to no credence.
Thus; for the above reasons, the impugned ex parte decree passed by the learned Family Court and the learned Appellate Court being illegal, void and without jurisdiction are set aside and declared to be of no legal effect. The result is that the suit instituted by the respondent against the petitioner (Family Suit No. 186 of 2003) shall be expeditiously decided as provided by law after hearing the parties, however; subject to the final decision by the learned Family Court, the petitioner is directed to deposit with the Family Court interim maintenance at the rate of Rs. 1,200 per month on monthly basis with effect from 1st November, 2004 for the three minor daughters of the spouses/parties presently in the custody of their mother (Respondent No. 1). Both the Constitutional petitions stand disposed of in the above terms, leaving the parties to bear their own costs.
(R.A.) Order accordingly
PLJ 2006 Quetta 16 (DB)
Present: Ahmad Khan Lashari & Mehta Kailash Nath Kohli, JJ.
FOZIA KHANAM--Petitioner
versus
AISHA SILACHI and 3 others--Respondents
C.P. No. (s) 47 of 2004, decided on 25.2.2005.
(i) Civil Service--
----Mere passing of examination or test would not confer right on petitioner to claim appointment of particular post unless appointing authority person some order. [P. 18] A
(ii) Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Competency--Petitioner has no legal vested right to claim appointment to particular post--Constitutional petition was, thus, not legally competent. [P. 19] B
(iii) Civil Service--
----Terms and conditions for appointment to particular post--Authorities while appointing respondent to post in question, had considered permanent resident of candidate from the same area/place where appointee was to serve--Respondent belonged to the area where appointment was to be made while petitioner having edge in merit was resident of a place 25 miles away--Petitioner's claim that respondent Authority making such appointment was related to respondent was not borne out from record--Constitutional petition was thus, not competent. [P. 19] C
2003 PLC (C.S.) 524, ref.
Mr. Muhammad Sadiq Ghuman, Advocate for Petitioner.
Mr. Ikhtiar Khan Marghazani, Advocate Mr. Abdul Raheem Mengal, A.A.G. for Respondents.
Date of hearing : 12.2.2005.
Judgment
Mehta K.N. Kohli, J.--This petition has called in question Order of Appointment dated 14.6.2004 passed by Respondent No. 2 (Executive District Officer Education, Sibi) and following prayer has been sought:
"In this circumstances it is prayed that the Honourable Court be pleased to declare the Orders dated 14.6.2004 passed by Respondent No. 2 appointing the Respondent No. 1 as J.E.T. Government Girls Middle School Talli District Sibi as illegal, void and without jurisdiction and order the Respondent No. 2 to dispose off the application of the petitioner dated 10.6.2004 according to merit list."
(i) That the appointment will be made for a period of three years on contract basis; however, on satisfactory performance is extendable.
(ii) That the appointed teachers shall be posted at a particular place where they will have to perform three years services; however, they will not be entitled to seek transfer to any other place.
(iii) That the teachers will be appointed on the basis of merit through tests.
(iv) That the teachers appointed could resign from service on giving one month notice. Similarly the Government on issuing one month notice could also terminate the services of the teacher.
(v) That the appointed teachers shall be entitled to pay as the other teachers are entitled.
(vi) That for appointment of said post the intended applicants shall be local or domicile of the said District and will be residents of same area. In case of non-availability of candidate from the same area/place the candidate from nearer place/area will be given preference.
(viii) That the candidate must be having FA/FSC between the age of 18 to 35 and in case of Government servant the age will be of 40 years.
Award List Test Interview J.E.T. (female) Government Girls School District Sibi, Held on 28th May, 2003.
S.No. Name Father's Name Written Oral Total Remarks
Test Test
Ghazala Salamat Ali 24 20 44 Pass Shaheen
Fouzia Sh. Ramzan 20 23 43 Pass Khanum
Aisha Mir Muhammad 33 07 40 Pass Selachi Khan
Hurmat Bibi Mir Ahmed Khan 33 06 39 Pass
Alia Iqbal Nasruddin Iqbal 21 18 39 Pass Azeem
Shazia Muhammad Alam 21 16 37 Pass Kauser
It has been contended by the learned Counsel for the petitioner that Ghazala Shaheen at S. No. 1 was appointed. However, his services were terminated w.e.f. 1.6.2004 as she was not found to be eligible as her domicile certificate was found bogus vide Order dated 14.6.2004. Respondent No. 1, who was at S.No. 3 of the Merit List was appointed in her place. It has been stated by the petitioner that she was at S. No. 2 has been ignored with mala fides as District Executive Officer Male Sibi is related to the Respondent No. 1.
The petition was admitted for regular hearing and counter-affidavit have been filed by the respondents separately. The counsel for the petitioner has mainly contended that the petitioner was entitled to be appointed being higher in Merit List i.e. at S. No. 2 and she has been unnecessarily ignored. It is worthwhile to point out that the posts pertain to JET Girls High School Tehsil Thalli, which is 25 Kilometer away from Sibi. It has been admitted by the Counsel for the petitioner that the petitioner is a permanent resident of Sibi. The counsel for the petitioner has further contended that the change in the Merit List has been made with mala fide and numbers of respondent have been altered to the disadvantage of petitioner, who has been deprived of entitlement for no reason. Counsel for the respondent as well as Assistant Advocate General have contended that on examination of the merit list Respondent No. 1 had contained more higher marks and was due to some error of calculation has been placed at S. No. 3, who should had been at S. No. 2 It has further been contended that the said notice clearly contemplate that preference shall be given to the candidate, who is resident of the same area/place.
We have considered the arguments put forth by the learned counsels for the parties and perused the record. We had also called the original Award List prepared by the department and examined the same. The first question arises for examination as to whether petitioner can claim the said post as matter of right and invoke the equitable jurisdiction of this Court. It is to point out that mere passing of examination or test would not confer a right on the petitioner to claim appointment of the said particular post, unless the appointing authority passes some Order. We are fortified with the view of the Hon'ble Supreme Court of Pakistan reported in PLC 2003 (CS) Page 524. The relevant observations of the Hon'ble Supreme Court of Pakistan are reproduced as under:
"We have heard the learned counsel for the petitioner at same length. In our view the High Court was right in holding that mere selection by the Selection Board does not confer a right on the petitioner to be appointed to the post in dispute when his selection was not approved by the appointing authority."
In view of the above stated reasons; the petition has no merit, which is dismissed with no Order as to cost.
(A.A.) Petition dismissed
PLJ 2006 Quetta 19 (DB)
Present: Akhtar Zaman Malghani & Raja Fayyaz Ahmad, JJ.
MISS MEHAK HASNAIN--Petitioner
versus
THE SELECTION COMMITTEE FOR ADMISSION IN BOLAN MEDICAL COLLEGE QUETTA through its CHAIRMAN and 3 others--Respondents
C.P. No. 159 of 2004, decided on 13.4.2005.
Educational Institutions--
----Admission in First year M.B.B.S.
course of Bolan Medical College, Quetta against one of reserved seats on
District merit as also for seats reserved for doctor's children--Respondent submitted three application forms for admission against seats of District merit, category A' andB' of doctors children seat--Respondent could not succeed on District merit, however, for category "A" and
"B" of doctors children seat he was at Serial No. 1--Selection
Committee took into consideration his that application form in which first choice of preference was for category "A", granted him admission on the seat allocated for category "A"--Petitioner was on second number in category "A", while co-respondent who was at Serial No. 2 in category `B' and secured less marks than petitioner was granted admission in category "A"--Admission of respondent in category "A" assailed--Policy makers never intended to require a candidate to submit separate application forms for each category--Any form subsequently submitted showing different choices/preferences to categories other than those mentioned in admission application form, subsequent in time would be invalid and could not be taken into consideration--Rationale behind decision of selection committee on basis where of it decided unanimously to grant admission to respondent in category "A" in view of his second application form by ignoring his first and third application forms in which respondent specifically exercised his first option of preferences to category "B"--Choices of preferences once exercised by a candidate in his application form would always for all intents and purposes for admission on merit would be final--Impugned decision of selection Committee which resulted in depriving petitioner to get admission in question, was thus, illegal, void and without lawful authority--Selection Committee was directed to grant admission to petitioner on seat reserved for category "A" in M.B.B.S. Court for relevant academic session. [Pp. 23, 24, 25 & 26] A, B, C & D
Syed Ayaz Zahoor, Advocate for Petitioner.
Mr. Salahuddin Mengal, A.G. and Zahid Malik, Advocate for Respondents.
Date of hearing : 20.3.2005.
Judgment
Akhtar Zaman Malghani, J.--The following reliefs have been claimed the instant constitutional petition:--
(a) "Declaring that the exercise of option by the Respondent No. 4, for admission under category "A" and its acceptance by the Selection Committee, is totally illegal, unjust, in excess and mis-exercise of authority vested in Selection Committee and further against the spirit of the Prospectus, as such, is of no legal effect.
(b) On having declared so, the Selection Committee be directed to accommodate the Respondent No. 4 under Category "B" and the petitioner be granted admission under Category "A" of the Prospectus and as a consequence the admission of Respondent No. 3 be cancelled.
(c) Any other relief deemed fit and proper in the circumstances of the case may also be awarded alongwith the cost of petition, in the interest of justice".
Briefly stated, facts of the case are that the petitioner after passing her F.Sc (pre-medical) examination submitted application form for admission in the 1st year MBBS course of Balochistan Medical College, Quetta against one of the reserved seats on the district merit, as well as; for the seat reserved for doctors' children, whereas; Respondent No. 4 who had secured 784 marks out of 1100 whose father has been working as Associate Professor in B.M.C. and mother as Doctor in Health Department also submitted three application forms for admission in the 1st year MBBS course against the seats of District merit, category "A" an "B" of the doctors' children seat. It appears from the record that Respondent No. 4 could not succeed to get admission on district merit, however; his forms were considered for category "A" & "B" of doctors' children seat as in both categories he was at Serial No. I. However; the Selection Committee took into consideration one of his application forms in which first choice of preference was for category "A". The Selection Committee therefore, granted him admission on the seat allocated for category "A". The petitioner was on second number in category "A", whereas; the Respondent No. 3, who was at serial No. 2 in category "B" and secured less marks than the petitioner, was granted admission in that category because Respondent No. 4 on the top of list in both the categories was granted admission in category "A".
We have heard the learned counsel for the petitioner as well as learned counsel for the Respondent No. 3 and learned A.G. Respondent No. 4 despite service of notice did not contest the petition. It is mainly contended by the learned counsel for the petitioner that in order of merit, meant for categories ""A & "B" the Respondent No. 4 was at Serial No. 1, the petitioner at No. 2 whereas; the Respondent No. 3 was at Serial No. 3. The Respondent No. 4 instead of having filed only one application for district merit reserved seats and the seats reserved for the doctors' children provided in categories "A" & "B" of the admission policy/prospectus for the Sessions 2003-04, filed three application forms contrary to the intent & spirit of the prospectus which provides for submission of only one admission application form in which the candidate has to specify his preference for the given categories and Selection Committee is to consider such candidates for the admission applied for in the light of the given choices, whereas; in the instant case the Respondent No. 4 while submitting three application forms gave conflicting choices. In the form first in time, his first preference on District Merit Seat and second preference was for category "B" but the Selection Committee instead of granting admission to him on his choice, on its own granted admission to Respondent No. 4 against category "A" by taking into consideration the application form next in time wherein his first choice was for category "A" which could not have been done by the Selection Committee being contrary to the object and option exercised by the candidate and the admission policy, which provides that the seats would be allocated on merits and secondly the petitioner having secured higher marks as per determined criteria, than Respondent No. 3, should have accommodated in category "A" by granting admission to Respondent No. 4 in category "B" but out of apparent mala fides and in order to accommodate the Respondent No. 3 out of turn, the Selection Committee ignoring the merits illegally granted admission to Respondent No. 3 depriving the petitioner to admission to which she was entitled.
On the other hand Mr. Zahid Malik contended that the Respondent No. 3 submitted application form for admission by exercising her option of preference for category "B" and she was also granted admission in said category and thus; she has nothing to do with category "A" in respect whereof the petitioner gave his preferences for admission. He further contended that petitioner has been granted admission in the 1st year B.D.S course from quota meant for Sibi Division and she is studying in Bolan Medical College, as such; she is not entitled to the relief claimed for. However; he submitted that preference given in first application form by a candidate for admission would prevail in circumstances of the case.
The learned Advocate General supported the decision of Selection Committee and submitted that the petitioner and the Respondent No. 3 are studying in Bolan Medical College and it would be unjust to de-seat any of them at this stage.
We have carefully considered the contentions put forth by the parties' learned counsel, the view expressed by the learned A.G. and have also gone through the relevant paragraphs of Prospectus applicable to the case and the documents filed with the memo: of Constitutional Petition, impugned order and the copies of the admission application froms placed on record by the representatives of B.M.C.
It may be seen that according to Paragraph-3 of the Prospectus out of total 154 seats, 103 seats were required to be filled on District merits and ten on provincial merits, whereas remaining seats were allocated for different categories, out of which three seats were reserved for the children of Doctors of Balochistan, one each for the following categories as per paragraph 10 of the prospectus:--
"CATEGORY-A: TEACHING STAFF OF BOLAN MEDICAL COLLEGE
Children of Teachers/Doctors, in Bolan Medical College, Quetta with at least ten years service and the Children of retired and deceased teachers of Bolan Medical College, are eligible for the seat provided that the deceased teacher had at least ten years service at his credit-One Seat."
"CATEGORY-B"
Children of doctors serving in the Provincial Health Department with at least ten years service other than those mentioned in Category "A" above. The children of retired and deceased doctors shall also be eligible for the seat provided that the deceased doctor has at least ten years service at his credit-One Seat."
"CATEGORY-C"
The children of only those doctors who are full time medical Practitioners, Employees of sort/semi sort department (Other then Provincial Health Department) in Balochistan and are local/domicile and permanent resident of Balochistan and are not employees in Provincial Government and the children of deceased doctors falling in this category would also be eligible for the seat, provided that the deceased family is permanently residing in Balochistan, and they should have served the people of Balochistan as private practitioners for at least ten years. One-Seat."
A' andB' as his father to be Associate Professor in B.M.C. and mother serving as Doctor in
Health Department, applied in both the categories in addition to seats reserved for Qilla Abdullah District. He submitted three separate application forms for each category including for district merit seat, though the prospectus does not provide for submission of separate application forms for each category except when a candidate is simultaneously applying for admission in the 1st year MBBS and B.D.S. course (Paragraph-38). Paragraph 35 requires that a candidate applying for admission against the District merit seats as well as; special category seat to mention his first and the second choice, for which purpose a separate column has been provided in the application form. It appears that the policy makers never intended to require a candidate to submit separate application forms for each category. Therefore, any form subsequently submitted showing different choices/ preferences to categories other than those mentioned in admission application form, subsequent in time would be invalid and could not be taken into consideration, therefore it would be appropriate to look into the reasons which prevailed with the Selection Committee to grant admission to the Respondent No. 4 on the seat reserved as per category `A' for the doctors
Children. For convenience and reference the decision of the committee is reproduced herein below in extenso:--"During the course of interviews of the candidates of above categories, Miss. Mehak Hasnain (S. No. 3 on the list) requested the committee that Syed Muhammad Azeem Agha, who is coming on the merit of Doctor's Children Category A' from his father side, and also coming on merits of Doctor's children CategoryB' from his mother side, hence for the sake of merit and competition his application may be considered in category B' as she is coming on merit after Syed Muhammad Azeem Agha in CategoryA' and better marks as compared to next coming on merit in category `B'.
The Selection Committee unanimously decided that the application of Syed Muhammad Azeem Agha should be considered as per his option mentioned in his application form, submitted from his father side. Accordingly, as per his choice his application was recommended against the reserved seat of Doctors Children Category "A", and the request of Miss. Mehak Hasnain was declined."
It is manifest from the above reproduced decision that no reasons what so ever have been assigned by the Selection
Committee for reaching to such conclusion, amounting and virtually invalidating the first and initial exercise of right of option of preferences to
categories' as given by Respondent No. 4. As per admission policy, it has been left to the option of the candidate to show his choice in the order of preference and the Selection Committee has not been vested with any authority to substitute its own choice with that of the candidate. We failed to understand logic or rationale behind the decision of the Selection Committee on the basis whereof it decided unanimously to grant admission to Respondent No. 4 in categoryA' in view of his second application form by ignoring his first and the third application forms, in which too the Respondent No. 4 specifically exercised his first option of preferences to category B'. It is interesting to note that the Respondent No. 4 submitted three separate application admission forms on 10.11.2003 in the office of the college in which, as hereinabove mentioned, conflicting preferences were given with regard to the categories against which admission to 1st year M.B.B.S. was sought for. In order to ascertain about the exercise of first and second preferences of categories on the basis of the application forms submitted first in time except the order in which receipts showing acknowledgement of the deposit of application forms in the office of the college, no other material has been placed on record by any of the parties to the case. Receipts of the depositing of the admission forms are issued in accordance with the procedure laid down in Para No. 40 of the prospectus. Application admission form, first in time is the one on which
Receipt No. on the top of the form has been mentioned as 70, deposited in the office of the college for which acknowledgement Receipt No. 70 was issued, the second in time was deposited vide Receipt No. 71, whereas; the third application form was entertained vide Receipt No. 72. In the first admission application form, first choice was given by the Respondent No. 4 for the district merit seat (Killa Abdullah district) and his second choice of preference in relation to the categories was forB' category, whereas; the third choice was for category A'. In the admission application form second in time, his first choice of preference was for admission against categoryA' and the second given choice of preference was for category B', whereas; in the application form third in time entertained vide Receipt No. 72 his first choice of preference was for categoryB' and the second choice of preference was given for category `A'.
It is an undisputed feature of the case that the Respondent No. 4 gave and exercised conflicting choices of his preferences for admission in his three application forms. Without any hesitation and reservation applying any rule of prudence and attending to the proposition from whatever angle that may be made applicable to the case or to a case, like the one in hand, if a right has been given to a candidate to give choices of his preferences for admission in any class, institution or organization or to contest for any assignment or for any study process etc. the preference of the choices given by a candidate to be considered on merits in view of the given choices unless powers have been conferred on the institution, organization or the body, competent to make selection to alter the given choices preference-wise or to switchover to the other preference of choices given by a candidate, subsequently on the same date or otherwise. Subsequent choices of preferences given by a candidate as in the instant case, cannot be looked into nor the subsequent application admission forms though; filed on the same date but later in time as hereinabove noted can render the choices of preferences given in the application admission form first in time to have been nullified or to have rendered invalid and; if it be taken so, in the application admission form i.e. third one (last in time) shows the first preference of choice of Respondent No. 4 for category B' and the second choice of preference for categoryA', therefore, even in view of the fact that a subsequent act to amount in by-passing the earlier or previous act or conduct of a party, will not even be applicable to this case, because in the application form last and later in time, the first preference for choice of
Respondent No. 4 was for category `B' and secondly; no such rule can be imported to the admission policy nor for any reason the same can be made applicable to the case, moreover; as the right of choices stand exercised by the candidate cannot be invalidated, withdrawn or substituted by any other act or omission, else; it will create an anomalous situation and the selection committee will be rendered in-capable to make any final decision if the candidates are permitted to be entitled to give/make different conflicting choices of preferences at one time or thereafter in the admission application forms.
In our considered view the choices of preferences once exercised by a candidate in his application form shall always for all intents and purposes for admission on merits in the light of the admission policy shall be final.
In the admission application form first in time submitted by Respondent No. 4, his first choice was for Quetta district reserved merit seats, but as he did not stand on merit, therefore, the Selection Committee should have honoured his choice which in fact with reference to special seats is the first choice for category B' on merit as against the other candidates contesting for admission on the basis of claimed entitlement for admission to 1st year M.B.B.S against the abovesaid categories, but on its own and by defeating the right made available to the candidate to exercise his preference of choices granted him admission against categoryA' instead of category B' which for the reasons mentioned above was not permissible nor the Selection Committee has the authority to switchover or alter the preferences of choices given by the candidate, vice versa or on its own, as well as; in view of the fact that the petitioner stood on higher merit than the Respondent No. 3 was entitled to get admission in the first year M.B.B.S. as per her first preference of choice to categoryB'.
The learned counsel for the Respondent No. 3 in the given facts of the case and the preferences of choices mentioned by the Respondent No. 4 in his three application forms referred to above conceded that the Selection Committee should have taken into consideration the application admission form submitted by the said respondent first in time.
In view of what has been stated above, we are of the considered view that the Selection Committee has acted arbitrarily and in excess of its authority by abusing its powers granted admission to the
Respondent No. 4 in category A' instead of categoryB' which resulted in depriving the petitioner to get admission in the 1st year M.B.B.S. of Bolan
Medical College, Quetta, as such; the impugned decision rendered by the
Selection Committee, Bolan Medical
College, Quetta, is illegal, void and without any lawful authority. Consequently; the Respondents Nos. 1 and 2 are directed to grant admission to the petitioner on the seat reserved for category `A' in the M.B.B.S. course of academic Session 2003-2004.
(A.A.) Order accordingly
PLJ 2006 Quetta 26
Present: Akhtar Zaman Malghani, J.
HAMEED ULLAH--Petitioner
versus
SECRETARY BOARD OF REVENUE, GOVT. OF BALOCHISTAN and 2 others--Respondents
C.R.No. 335 of 2001, decided on 4.3.2005.
West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 172--Suit for correction of mutation--Plaintiff claimed to be in possession of land comprised in mutation in question, without giving measurement of land--No evidence was produced during trial from which exact measurement of house he claimed to have built thereon, could be ascertained--Trial Court had granted declaration in respect of ownership of house in dispute, which relief was never sought by plaintiff, who had claimed relief in respect of correction of mutation entry which in terms of S. 172 of West Pakistan Land Revenue Act, 1967 could not have been granted in as much as, matter pertaining to correction of entries exclusively falls within jurisdiction of Revenue Authorities--Appellate Court also erred in law by holding that plaintiff had issued only in respect of superstructure of house and had not claimed any relief with regard to land beneath the same--Plaintiff had asked for correction of entries, which naturally includes land--Findings of both Courts were set aside and case was remanded to trial Court without to call plaintiff to file better statement showing exact measurement of house in question, and deciding suit afresh keeping in view observation of High Court. [Pp. 28 & 29] A & B
Mr. Amanullah Kanrani, Advocate for Petitioner.
Mr. Amanullah Tareen, A.A.G. for Respondents.
Date of hearing : 23.2.2004.
Judgment
This civil revision petition is directed against the judgment and decree of Majlis-e-Shoora, Turbat dated 29th September, 2001, whereby; after setting aside the judgment and decree of Qazi, Turbat dated 15th June, 2001 the suit of the petitioner was dismissed.
Briefly stated, facts of the case are that the plaintiff filed a suit in respect of a house, boundaries whereof have been described in the plaint, on the averments that he has built the said house about 20 years back and is residing therein, but during settlement carried out in the year, 1997 the property was entered in the name of Government vide Khewat and Khatooni No. 159/163 and Khasra No. 404 was allocated to the property in dispute. In the end the plaintiff prayed for correction in mutation entries.
The suit was contested by Respondents Nos. 1 and 2; and following issues were framed out of the pleadings of parties:--
URDU
The plaintiff produced three witnesses and also got recorded his statement, whereas; defendants also produced three witnesses and statement of their representative was also recorded.
The learned Qazi, Turbat on 15th June, 2001 decreed the suit. The defendants/respondents challenged the decree before Majlis-e-Shoora Turbat by way of filing appeal, which was eventually allowed vide impugned judgment and decree and after setting aside the judgment and decree of Qazi, Turbat the suit of plaintiff was dismissed.
I have heard the learned counsel for the petitioner as well as Assistant Advocate General and have also gone through the impugned judgment and decree. It is mainly contended by the learned counsel that at the time of settlement proper procedure was not adopted and the entries were carried out in violation of Sections 44, 45 and 53 of the Land Revenue Act, 1967. He further contended that the land in dispute was not a plain land ( ), but a house was in existence over it, as such; it could not have been entered in the name of Government. The learned Qazi after appreciating the evidence on record passed a proper and appropriate decree, which was illegally set aside by the appellate Court.
On the other hand, learned Assistant Advocate General supported the judgment and decree of Majlis-e-Shoora and contended that the evidence produced by the plaintiff in proof of his possession was contradictory. He also failed to prove his ownership with regard to land beneath the house. In fact at the time of carrying out settlement no house existed and it was a plaint land, but after settlement the plaintiff occupied the land and illegally constructed house over it.
I have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the pleadings and evidence adduced during trial. It would not be out of place to mention here that during trial none of the parties placed on record the disputed mutation entry, however; on the direction of this Court, learned counsel has filed a copy of the same. Perusal of same shows that Khewat/Khatooni No. 159/163 bearing Khasra No. 404 was entered in the name of Provincial Government during the settlement and according to mutation entries Khasra No. 404 is measuring about 240970 sq. ft. The plaintiff in his plaint has prayed for correction of mutation bearing Khewat/Khatooni Nos. 159/163 Khasra No. 404 in his favour, which means he wants to be entered as owner of 240970 sq. ft, whereas he pleaded that he is in possession of a house without giving his measurement. No evidence was produced during trial from which the exact measurement of house in dispute could be ascertained. Similarly the learned Qazi also granted declaration in respect of ownership of the house in dispute, which relief was never sought by the plaintiff. He has only claimed relief in respect of correction of mutation entry which in view of Section 172 of the Land Revenue Act, 1967 could not have been granted, as matter pertaining to correction of entries exclusively falls within the jurisdiction of revenue authorities. The learned Majlis-e-Shoora also erred in law by holding that the plaintiff has sued only in respect of superstructure of house and has not claimed any relief with regard to land beneath it. The prayer clause of the suit indicates that the plaintiff has asked for correction of entries, which naturally includes the land.
From the above discussed, I have come to the conclusion that the contents of plaint are vague as it does not contain the measurement of the property for which suit have been filed and the learned Qazi granted declaratory relief without having been asked for which could not have been granted without amendment of plaint. The learned Majlis-e-Shoora also failed to adhere to these important aspects of the case. Therefore, I am inclined to set aside both the judgments/decrees; and remand the case to Qazi, Turbat with the direction to call the plaintiff to file better statement showing exact measurement of the house in dispute and decide the suit afresh after affording opportunity to both the parties for leading further evidence, and keeping in view the observations made herein above.
Parties are left to bear their own costs.
(A.A.) Case remandeds
PLJ 2006 Quetta 29
Present: Amanullah Khan Yasinzai, J.
Haji JAN MUHAMMAD--Petitioner
versus
Mst. ANWARI HUSSAIN and 14 others--Respondents
C.R. No. 252 of 2001, decided on 11.3.2005.
Specific Relief Act, 1877 (1 of 1877)--
----S. 42--Civil Procedure Code (V of 1908), S. 115--Ownership on basis of registered sale-deed--Trial Court had erroneously concluded that sale-deed, in favour of petitioner were invalid as original power of attorney in question, was not produced--Admittedly at the time of registration of sale-deeds, power of attorney was produced before sub-registrar who after considering the same had registered sale-deed which remained un-challenged throughout and on basis of such sale-deed, petitioner was recorded as owner in revenue record--Petitioner's title as owner of land in question, thus, stood proved. [P. 35] A
Specific Relief Act, 1877 (1 of 1877)--
----S. 42--Civil Procedure Code (V of 1908), S. 115--Suit for declaration of title and possession--Dismissal of suit by Courts below is post remand proceedings--Legality--Re-appraisal of evidence on record would show that judgments and decrees passed by Courts below were based on misreading of evidence and non-consideration of documentary evidence--Conclusions drawn by both Courts below were based on erroneous assumptions of law, thus, High Court would be well within its right to set aside judgments in question in exercise of revisional jurisdiction--Impugned judgments and decrees whereby petitioner's suit was dismissed were set aside and petitioners suit was decreed. [Pp. 38 & 39] B
PLD 1994 SC 162; 2000 SCMR 974; 2003 SCMR 286 and PLD 1949 P.C 26 ref.
Mr. Sundar Das, Advocate for Petitioner.
M/s. Tahir Muhammad Khan and Rashid Awan, Advocates for Respondents.
Date of hearing: 25.2.2005.
Judgment
This Civil Revision petition under Section 115 CPC is directed against the judgment and decree dated 26.5.2001 passed by Additional District Judge-IV Quetta, whereby appeal filed against the judgment and decree dated 18.7.2000 passed by Senior Civil Judge-I Quetta, was dismissed and consequently, the suit filed by the petitioner was ordered to be dismissed.
Briefly stated the relevant facts of the case are that initially the petitioner filed a suit for declaration and possession against late Shaukat Hussain predecessor in interest of Respondents Nos. 1 to 11 and against the Respondents Nos. 12 and 13. During pendency of the suit, the respondent Shuakat Hussain died. Thus his legal heirs i.e. Respondents Nos. 1 to 11 were impleaded as party. It was averred in the plaint that the petitioner had purchased the property bearing Municipal No. 2-21/8(1) 678-679 Khasra No. 415 Khatoni No. 242 Khewat No. 167 measuring 349 sq.ft situated at Teju Mal Lane, Roop Chand Lane, Masjid road Quetta from its previous owners Yahya Bai and Tahir Ali vide sale-deeds dated 14.9.1993 and 16.4.1992 duly registered with Sub-Registrar Quetta. On the basis of such sale-deeds, the property was transferred in the name of the petitioner in revenue record. It was further averred in the plaint that actual owners Yahya Bai and Tahir Ali had leased out the property to Shaukat Hussain who without the consent of the previous owners sublet the same to respondent Haji Yar Muhammad and Allauddin. It was prayed that possession of the said premises be give to the petitioner. The respondents filed a joint reply repudiating the claim of the petitioner. It was stated in the written statement that the property in dispute belongs to Evacuee Trust Property Board, out of the pleadings following issues were framed:--
Whether the suit is bad for non-joinder of parties as well as cause of action, therefore, the same is liable to be dismissed?
Whether the suit is not competent u/S. 42 of the Specific Relief Act?
Whether the present suit is time barred by time in view of Article 120 of the Limitation Act?
Whether the predecessor in interest of the plaintiff had never been in possession of the disputed property and Yahya Bhai and Tahir Ali had lost their title in the disputed property?
Whether the Defendant No. 1 was in possession of the disputed property as a licensee of predecessor in interest of the plaintiff namely Yahya Bhai and Tahir Ali and without permission or consent of the previous owner the Defendant No. 1 has given unauthorized given the possession to the Defendants Nos. 2 and 3?
Whether the plaintiff has been purchased the disputed property and has thus became the owner of the same?
Whether the plaintiff is entitled for the relief claimed for?
Relief?
Thereafter following additional issues were also framed:--
Whether Evacuee Trust Property Board is a necessary party to the suit, if so to what effect?
Whether suit property or any party thereof is an Evacuee Trust Property, if so to what effect?
Whether the Defendant No. 1 (Late Shaukat Hussain) was the tenant of Evacuee Trust Property Board in respect of the premises in dispute?
Whether the predecessor in interest of Defendants Nos. 1 to 11 were induced into the suit property as Licensee?
Whether the suit has been instituted within time?
In support of his contention, the petitioner produced the following witnesses:--
PW-1 Gul Muhammad representative of the Sub-Registrar Office, he tendered documents Ex-P/1 to Ex-P/4, the registered sale-deed executed by Yahya Bai and Tahir Ali respectively in favour of the petitioner regarding the property in dispute.
PW-2 Zohaib Ali, he executed the registered sale-deed in favour of the petitioner as attorney for Yahya Bai and Tahir Ali. He acknowledged his signatures on Ex-P/1 to Ex-P/4.
PW-3 Muhammad Azam representative of the Excise & Taxation Department, he produced PT-1 Form Ex-P/5 regarding the property in dispute.
PW-4 Javed Iqbal Superintendent Board of Revenue, he tendered documents Ex.P/11 to Ex-P/15 being the taxation documents and certificate Ex-P/13 wherein the Khasra number and municipal number of the property in dispute are mentioned.
PW-5 Khudai Dad Patwari, he produced Fard Ex-P/7, report of the revenue authorities Ex-P/8, inspection report of the property in dispute Ex-P/9 and application filed on 12.1.1992 by the venders Yahya Bai and Tahir Ali through their attorney for rectification of the record.
PW-6 Shaukat Ali, representative of the Quetta Municipal Corporation, he produced site-plan and building permit Ex-P/16 and Ex-P/17 issued by Municipal Corporation.
PW-7 Shafi Muhammad, Patwari, tendered documents Ex-P/18 to Ex-P/20 being the record of Fard pertaining to the year 1993 showing Yahya Bai and Tahir Ali as the owners and Intiqal Ex-P/19 and Ex-P/20.
PW-8 Ali Muhammad, Patwari, he produced documents Ex-P/21 showing Yahya Bai and Tahir Ali as owners of the property in dispute during the settlement of 1941 and 1945.
PW-9 Farid Ahmed Tax Clerk, QMC, he produced documents Ex-P/22 to Ex-P/23 being tax receipts paid by the petitioner regarding the property in dispute.
PW-10 Abdul Qadir, he deposed about the sale transaction and execution of sale-deeds in favour of the petitioner.
PW-11 Mr. Kailash Nath Kohli, he issued notice to the respondents on behalf of the petitioner Ex-P/24. Statement of the petitioner was recorded in support of his contention.
In rebuttal the respondents/defendants produced DW-1 Abdul Samad, he deposed that the Respondent No. 1 Shaukat Hussain was tenant in the said premises and now Respondents Nos. 12 and 13 are doing business in the same and are paying rent to the Evacuee Trust Property Board.
DW-2 Muhammad Farooq also deposed that the respondents are doing business in the said premises and none had claimed the ownership of the property in dispute for the last 20 years.
DW-3 Ali Muhammad, produced documents Ex-D/1 in respect of property Bearing Khewat No. 150 Khatoni No. 165 Khasra No. 2429 measuring 195 sq.ft.
DW-4 Muhammad Yousaf stated that the respondents are tenants in the property in dispute belonging to Evacuee Trust Property Board and Yahya Bai and Tahir Ali had nothing to do with the said property.
PW-5 Farhad Ahmed Tax Clerk, tendered document Ex-D/2 pertaining to property bearing Khasra No. 811, 67879 showing Shaukat Hussain predecessor of Respondents Nos. 1 and 11.
DW-6 Faiz Muhammad, he tendered document Ex-D/3 being the latest Fard of the property Bearing No. 194 Khatoni No. 191 Khasra No. 414 measuring 195 sq.ft.
DW-7 Muhammad Ali, he deposed that the respondents are doing business in the said premises for the last 25/30 years and none has claimed the ownership of the same and Yahya Bai and Tahir had never visited the property in dispute.
DW-8 Shakil Ahmed, he produced documents Ex-D/4 to Ex-D/30 being agreements between Evacuee Trust Property Board and respondent Shaukat Hussain, certificate regarding the said property wherein Khasra numbers have been mentioned and rent receipts of property Bearing Municipal No. 2-21/8-A.
Shaukat Hussain predecessor-in-interest of respondent stated that he was tenant of the Evacuee Trust Property Board. However, Yahya Bai and Tahir Ali had nothing to do with the property in dispute.
Respondent No. 12 Haji Yar Muhammad in his statement stated that he is doing business as partner of Shaukat Hussain who is tenant of Evacuee Trust Property Board.
Respondent No. 13 Allauddin also stated that he is partner in the shop and are paying rent to the Evacuee Trust Property Board.
Muhammad Aslam, Administrator, Evacuee Trust Property Board, he produced documents Ex-D/32 and Ex-D/33 showing Shaukat Hussain as tenant.
After hearing the parties, the learned Senior Civil Judge-I Quetta decreed the suit vide judgment and decree dated 30.4.1997. Being aggrieved from the same, the respondents filed an appeal before the District Judge Quetta which was transferred to the file of Additional District Judge-II Quetta who also dismissed the appeal vide judgment and decree dated 2.12.1998. Thereafter the respondents filed a revision petition before this Court which was registered as Civil Revision Petition No. 22/99 and the same was partly accepted and remanded the case to the Court of Senior Civil Judge-I Quetta with the directions for impleading the Evacuee Trust Property Board as party and re-constituting the issues. On such directions, the Evacuee Trust Property Board was impleaded as party and additional issues were framed. The parties relied upon the evidence already produced by them in the first round and only the representative of Evacuee Trust Property Board appeared and tendered documents Ex-P/32 to Ex-P/33 and thereafter, the learned Senior Civil Judge-I Quetta dismissed the suit vide judgment and decree dated 18.7.2000. Being aggrieved from the same, the petitioner filed an appeal before the District Judge Quetta which was transferred to the Court of Additional District Judge-IV Quetta who after hearing the parties upheld the judgment and decree dated 26.5.2001. Hence the instant revision petition.
I have heard Mr. Sundar Dass, Advocate for the petitioner, Mr. Tahir Muhammad Khan, Advocate for the Respondents Nos. 1 to 13 and Mr. Rashid Awan, Advocate, for the Respondents Nos. 14 and 15.
Mr. Sundar Dass, learned counsel appearing on behalf of the petitioner, contended that both the Courts below have mis-read and mis-appreciated the documentary evidence produced by the petitioner and have committed a grave illegality and irregularity by rejecting the documents without giving any cogent reasons. Thus serious prejudice has been caused to the case of the petitioner. Learned counsel further contended that both the judgments and decrees have been passed on the basis of conjectural and erroneous presumptions and wrong assumptions of law and prayed that both the judgments and decrees be set aside and suit be decreed in favour of the petitioner.
Mr. Tahir Muhammad Khan, learned counsel for the Respondents Nos. 1 to 13 contended that the Courts below have rightly dismissed the suit of the petitioner on proper appreciation of evidence and cogent reasons have been given in discarding the oral and documentary evidence, thus this Court in revisional jurisdiction may not interfere with concurrent findings of facts arrived at by the Courts below.
Mr. Rashid Awan, learned counsel appearing on behalf of Evacuee Trust Property Board, adopting the arguments of Mr. Tahir Muhammad Khan, Advocate, contended that the property in dispute belonged to Evacuee Trust Property Board.
Adverting to the contention of Mr. Sundar Dass, learned counsel for the petitioner that the title of the petitioner is based on the registered sale-deed dated 14.9.1993 and 16.9.1992 executed by Yahya Bai and Tahir Ali in favour of Haji Jan Muhammad through attorney whereby Yahya Bhai and Tahir Ali have sold the property in dispute to the petitioner. The learned counsel contended that the property in dispute belonged to vender Yahya Bai and Tahir Ali. He referred to document Ex-P/21 being the Fard of the property pertaining to the year 1941 and 1945 whereby they were shown as owners of the property in dispute. The old Khewat No. 18 Khatoni No. 81 Khasra No. 2430 and further referred to documents Ex-P/18 fard pertaining to the year 1985 whereby the property still existed in the name of Yahya Bai and Tahir Ali i.e. Khewat No. 167, Khatoni No 242 Khasra No. 415 and further stated that on the basis of said entries in revenue record, the sale-deeds Ex-P/1 to Ex-P/4 were executed and thereafter, the property was transferred in the name of petitioner vide Ex-P/19 i.e. mutation dated 19.9.1993. While referring to the said documents, the learned counsel contended that as far as the ownership of Yahya Bai and Tahir Ali is concerned, the same is proved through the said documents which has not been challenged. He further contended that the Courts below have not appreciated the said documents and had erroneously held that Yahya Bai and Tahir Ali were not the owners of the property in dispute. Perusal of the aforesaid document would reveal that Yahya Bhai and Tahir Ali were the initial owners of the said property even prior to partition of sub-continent and the property remained in their names till its transfer in the name of petitioner. It may be mentioned here that the title of Yahya Bai and Tahir from whom the petitioner got his title has never been challenged before any Court of law. Even during the course of proceedings before the lower Court, the learned trial Court has erroneously held that the sale-deeds in favour of the petitioner are invalid as the original power of attorney of PW-Zohaib Ali was not produced. Suffice it to observe that at the time of registration of sale-deeds, the power of attorney was produced before the Sub-Registrar who after considering the same had registered the sale-deed which remained unchallenge throughout and on the basis of such sale-deed, the petitioner was recorded as owner in the revenue record vide fard Ex-P/6. Thus the contention of Mr. Tahir Muhammad Khan, learned counsel that Yahya Bai and Tahir Ali had lost their title in the property is repelled.
Coming to the next contention that the property in dispute was leased out to Shaukat Hussain predecessor in interest of Respondents Nos. 1 to 11. Learned counsel referred to the documents Ex-P/5 PT-1 Form pertaining to the years 1984 to 1989, whereby the petitioner was shown as recorded owner whereas Shaukat Hussain as a tenant. This PT-I Form Ex-P/5 has been prepared on the basis of old record whereby Yahya Bai and Tahir Ali were owners from whom the petitioner received the owners of the property in dispute, which lends support to the plea of petitioner that late Shaukat Hussain was a tenant of previous owners. The contention of learned counsel for the respondents that they were owners of Evacuee Trust Property Board is repelled, for which separate reasons will be given lateron.
Mr. Tahir Muhammad Khan, learned counsel for Respondents Nos. 1 to 13 strenuously argued that infact the property in dispute was a Temple ( ) which was in possession of the respondents and the property in dispute infact never existed. He further argued that with connivance of the revenue authorities, the petitioner and previous owners prepared forged documents. With due respect to the learned counsel for the private respondents, I am unable to subscribe to the said contention. It may be noted that an application Ex-P/10 was submitted by the previous owners through their attorney for rectification of the record wherein it was stated that in the year 1941 and 1945, the property measuring 349 sq.ft was shown as an open piece of land whereas in the settlement in the year 1985, the said property was shown to be a temple ( ). On such application, the Collector directed the revenue authorities to visit the site. The Patwari alongwith Gardawar visited the site and submitted report Ex-P/9 stating therein that on the site the property in dispute is a separate unit and no temple exists. Thus on the basis of the same, Patwari also submitted report Ex-P/18 and thereafter, rectification was made in the revenue record. The learned counsel for the petitioner contended that the property in dispute never belonged to Evacuee Trust Property Board, in this respect Member Board of Revenue issued a certificate that the property in dispute was never an Evacuee Trust Board Property. However the temple has been shown as an Evacuee Trust Property Board vide certificate Ex-P/15 dated 19.6.1994.
Certificate Ex-P/13 was issued by Board of Revenue wherein it has been certified that the property in dispute never belonged to Evacuee Trust Board Property, but the same belonged to Yahya Bai and Tahir Ali who sold the same to the petitioner Haji Jan Muhammad.
The respondents to support their contention that they are tenants of Evacuee Trust Board, produced documents Ex-D/3 being the fard of the property, shown as Mandar Bearing Khewat No. 194 Khatoni No. 291 and Khasra No. 414 Measuring No. 195 sq.ft and Ex-D/7 to Ex-D/31 being the rent receipts issued by Evacuee Trust Property Board regarding property Bearing Municipal No. 2-21/8-A which pertains to the Temple. It is pertinent to mention that the municipal number of property in dispute is 2-21/8(1). Thus from perusal of the said documents inference can be drawn that the municipal No. 2-21/8(1) pertains to Khasra No. 415 Measuring 349 sq.ft whereas the Municipal No. 2-21/8-A pertains to document Ex-D/5 belonging to Evacuee Trust Property Board and the respondents are tenant of the same. Though the representative of the Evacuee Trust Property Board appeared and he produced document Ex-D/32 and Ex-D/33, but it may be mentioned here that the said documents do not pertain to Khasra No. 2-21/8(1) being the property in dispute. Thus the Courts below fell in error in discarding the said evidence and the findings arrived at by both the Courts are based on mis-reading of the aforestated documents and conclusions drawn are on conjectural presumptions and wrong assumption of law. The learned counsel for the respondents was at pains to argue regarding PT-I Form Ex-P/5, whereby the petitioner has been shown as owner and respondent Shaukat Hussain was shown as tenant. He only contended that the same are forged documents but it may be mentioned here that none has come forward to challenge the same. Thus the said documents cannot be discarded merely on oral assumptions without anything to the contrary.
Mr. Sundar Dass, learned counsel for the petitioner contended that once the Court comes to the conclusion that findings are based on mis-reading of evidence, thus it becomes incumbent on the high Court in revisional jurisdiction to set at naught such findings. In this regard, reference is made to the following case laws:--
(1) PLD 1994 Supreme Court 162 (Saheb Khan through legal heirs versus Muhammad Pannah).
"But it is well settled that if a material document or material evidence is not duly considered, the High Court could interfere in revision. It is also settled that if an appellate Court bases its decision on a wrong proportion of law the High Court in its revisional jurisdiction could interfere with it."
(2) 2000 SCMR 974 (Samar Gul and others versus Mohabat Khan and others)
"It is tritle law that if the concurrent findings of the Courts below are the result of misreading of evidence on the record, it becomes the duty of the High Court/revisional forum to set the wrong right in accord with its jurisdiction under section 115, C.P.C. Put differently, if the issues struck in a given case are found to have been resolved by bringing to bear the oral as well as documentary on such bringing by both the trial Court and the Appellate Court concurrently, then the revisional jurisdiction of the High Court will not be attracted. This assertion by Mr. Azad is not without merit, in party."
(3) 2003 SCMR 286 (Muhammad Bakhsh versus Ellahi Bakhsh & others)
"We must say at the very outset that the learned Single Judge of the Lahore High Court is not correct in holding that once the concurrent findings are recorded by the two Courts below i.e. the Civil Judge and the learned District Judge, the reversal thereof by the High Court does not fall within the scope of revisional jurisdiction to be exercised by it under Section 115, C.P.C. It is pertinent to mention here that this is not an absolute rule. The High Court is well-empowered to reverse the findings of the Courts below if those are not supported from the record or the Courts below have misread the same resulting into serious miscarriage of justice. In the case of Maj. Rashid Beg v. Rehmat Ullah Khan and 4 others (PLD 2001 SC 443) the learned Judges of this Court did not agree that the concurrent findings in any case could not be reversed by the High Court while exercising revisional jurisdiction under Section 115, C.P.C. for the reason that the scope of said section was not narrow and limited as argued by the learned counsel. The learned Judges repelled this stance by observing as under:
"We are of the considered opinion that where the concurrent findings are based on conjectural presumptions, erroneous assumptions and wrong proposition of law that can be reversed justifiably by High Court while exercising revisional jurisdiction as conferred upon it under Section 115, C.P.C. and interference may be made in concurrent findings when the same are based on insufficient evidence misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view on evidence has been taken due to non-reading and misreading of evidence."
The Privy Counsel in the case of N.S vankatagiri Ayyangar and another versus The State Hindu Religious Endowments Board Madras reported in (PLD 1949 PC 26), wherein the following observations were made:
"This section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error or procedure in the course of the trial which I material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
Thus on re-appraisal of the evidence, it is apparently clear that both the Judgments and decrees passed by the Courts below are based on mis-reading of evidence and non-consideration of documentary evidence and conclusion drawn by both the Courts are based on erroneous assumptions of law, thus this Court will be well with its right to set aside both the judgments in exercise of revisional jurisdiction.
For the foregoing reasons, the impugned judgments and decrees dated 18.7.2000 and 26.5.2001 passed by Senior Civil Judge-I Quetta and Additional District Judge-IV Quetta, respectively are set aside and suit filed by the petitioner is decreed. The respondents are directed to hand over the vacant possession of the premises in dispute Bearing Khasra No. 2-21/8(1) to the petitioner within a period of two months.
Parties are left to bear their own costs.
(A.A.) Revision accepted
PLJ 2006 Quetta 39
Present: Muhammad Nadir Khan, J.
PIONEER CABLES LTD.--Appellant
versus
WALI MUHAMMAD--Respondent
L.A. No. 04 of 2005, decided on 5.12.2005.
(i) Industrial Relations Ordinance, 2002 (XCI of 2002)--
----S. 48--Industrial Relations Ordinance (XXIII of 1969), S. 25-A--Order of retrenchment terminating service of respondent--Grievance application filed by respondent--Maintainability--Applicant/respondent and 10 others were removed from service on account of retrenchment policy of appellant establishment--C.B.A. Union did not challenge termination/ retrenchment of 11 workers already removed however, they prayed for injunction against further removal of workers--Order of National Industrial Relations Commission being not against termination/ retrenchment of appellant, his grievance petition before Labour Court was thus, maintainable. [P. 44] A
(ii) Industrial Relations Ordinance, 2002 (XCI of 2002)--
----S. 48--Plea of termination being mala fide or on account of trade union activity--Quantum of proof--Respondent was joint secretary of the trade union but he had resigned 6 months prior to his termination--Removal of respondent on account of his trade union activity thus, could not be proved--Appellant along with 10 others was termination of them 10 workers accepted termination order by collecting their respective dues--Trade union did not challenge removal of 11 worker before National Industrial Relations Commission--Termination order was neither stated to be mala fide nor on account of trade union activity by trade union in their application before National Industrial Relations Commission, however, they prayed only against further termination of workers--Plea of mala fide and trade union activities was thus, not proved. [P. 45] B
(iii) Industrial Relations Ordinance, 2002 (XCI of 2002)--
----S. 48(3)--Retrenchment of workmen due to suffering of financial loss--Statement of representative of petitioner and documents produced by him would not only support plea of company about suffering of financial loss but would also reflect that number of workers were reduced which fact by itself is sufficient to prove that workers in large number were un-necessary/surplus--Undisputed annual financial reports reflect that petitioner's company was suffering loss continuously for three years, before issuance of retrenchment order in question--Retrenchment order of eleven workers including petitioner was thus, proved to be due to financial loss from which petitioner was suffering during successive preceding years. [Pp. 45 & 46] C
(iv) Industrial Relations Ordinance, 2002 (XCI of 2002)--
----S. 48(3)--Termination of respondent's service by petitioner on account of retrenchment policy which was necessitated due to financial loss suffered by petitioner during preceding successive years--Labour Court set aside order of termination of petitioners service and ordered his re-instatement in service--Legality--Petitioner had terminated petitioner and others by applying principle of last in first out--Plea of company was not refuted that petitioner was amongst junior most worker, who were terminated through retrenchment--Order of Labour Court re-instating petitioner was set aside. [P. 46] D
Mr. Abdul Ghani, Advocate for Appellant.
Mr. Sundar Das, Advocate for Respondent.
Date of hearing: 22.11.2005.
Judgment
This appeal u/S. 48(3) r/w Section 48 of Industrial Relations Ordinance, 2002 (hereinafter referred to as the IRO) is directed against the order dated 16.2.2005 passed by Third Labour Court Balochistan at Hub (hereinafter referred to as the Labour Court) whereby the order of retrenchment dated 26.4.97 terminating the service of the respondent (hereinafter referred to as the applicant/worker) has been set aside and the Employer/Company has been directed to reinstate the worker in service with full back benefits.
The concise facts relevant for disposal of this appeal are that the applicant/worker who was serving the Employer/Company as Helper since 18.8.94 was removed from service vide retrenchment order dated 26.4.97 as the Employer/Company decided to reorganize their operations and retrench workers surplus to their requirement because Company was stated to be facing financial losses due to lack of demand and lack of orders. According to the Employer/Company applying the principle of last in first out the services of the applicant/worker were terminated who was directed to collect his dues on any working day. The applicant on receiving of the retrenchment order served the Company with the grievance notice u/S. 25-A IRO seeking withdrawal of the retrenchment order. On refusal of the Employer/ Company application u/S. 25-A of IRO was filed by the applicant/worker with the prayer to set aside the order dated 26.4.97 and his reinstatement in service with back benefits. The applicant alleged that his services were terminated malafidely on account of his trade union activities and the retrenchment order was stated to be against the provisions of law, while the Company was stated to be gaining huge profits as the production of the Company has increased due to great demand in the market.
The Employer/Company resisted the application contending that the applicant during the tenure of his service absented willfully and was not performing his duty as claimed by him. According to the Employer/Company the applicant who was Joint Secretary of Mehnat Kash Union himself resigned from the said office on 21.8.96, which was accepted by the CBA Union and copy of the same was submitted to the Registrar of the Trade Unions of Balochistan on 17.10.1996. The Employer/Company further submitted that the CBA Union approached the NIRC and obtained order dated 29.4.1997 restraining the Employer/Company from terminating the services of the workers, whereas the order of retrenchment was already issued on 26.4.97. According to the Employer/Company his retrenchment order was in accordance with the provisions of Order 13 of West Pakistan Industrial & Commercial Standing Orders Ordinance, 1968 (hereinafter referred to as the Standing Orders).
The learned Labour Court after adducing of the evidence by the parties allowed the application vide order dated 30.12.97, whereby the order dated 26.4.97 passed by the Employer/Company terminating the services of respondent was set aside and he was reinstated with all the back benefits. The Employer/Company being aggrieved by the reinstatement of the applicant filed Labour Appeal No. 2/1998, which was dismissed by the Labour Appellate Tribunal vide judgment dated 2.5.2001. The Employer/ Company thereafter filed Constitutional Petition No. 222/2001, which was allowed by means of judgment dated 20.12.2001 and the case was remanded to the Labour Appellate Tribunal for decision afresh in accordance with law. After remand the Employer/Company filed application for amendment/ incorporation of additional grounds in the memo of appeal, placing of documents on record and for leading of additional evidence. The said applications were disposed of by means of order dated 15.9.02 whereby the appellant/employer was allowed to incorporate additional grounds in the memo of appeal. Accordingly, amended memorandum of appeal was filed incorporating additional grounds which regard to the financial losses incurred by the company till year 1997 and in support of the same additional documents/annual reports were filed. After hearing of both the parties the appeal was disposed of by means of judgment dated 7.10.2003 whereby the order dated 30.12.1997 was set aside and the case was remanded to the Labour Court for its disposal afresh after allowing both the parties fair opportunity to support their respective claims and the Labour Court also to re-examine the matter.
After remand of the application the applicant filed his affidavit as additional evidence and he was cross-examined by the counsel for the Employer/Company. On the other hand the Employer/Company filed the affidavit of Abdul Majeed accompanied by documents R-1 to R-52, which include the order of NIRC dated 3.5.97, order of termination of ten other employees and audit/annual reports of the accounts of the Company for the years 1997 to 2002. The learned Labour Court concluded the proceedings by means of order dated 16.2.2005 in the aforementioned terms.
Mr. Mehmood Abdul Ghani counsel for the appellant argued that the learned Labour Court has failed to appreciate the evidence available on the record, which established that at the time of retrenchment order of the applicant and ten others, Employer/Company was facing financial losses and for reorganization of the establishment the surplus staff could be removed as allowed by Order 13 of the Standing Orders. According to the learned counsel ten other employees accepted the position of the Employer/Company and in compliance of the retrenchment order they collected their dues and the applicant alone, who failed to dispute the financial position of the Company and also is being amongst the junior most worker in his category, filed the grievance application only to pressurize the Company to meet his uncalled demands. The counsel for the Employer/Company further argued that the grievance application was not maintainable in view of Section 22-A of IRO as the applicant through CBA Union approached NIRC labeling the action of the Employer/Company as unfair labour practice and after being failed before NIRC filed the grievance application before the Labour Court on the same grounds, which were already dealt with by the NIRC in its order dated 3.5.97. The applicant failed to bring on record any material reflecting malafide on the part of Employer/Company for termination of his service. The evidence available on the record does not reflect that after termination of 11 employees any new worker was inducted, which fact by itself shows that the applicant and ten others were surplus and have not been replaced till date, therefore, the learned Labour Court ignoring all the above aspects of the case is stated to have passed the order of reinstatement, which is in conflict with the evidence available on the record.
Mr. Sundar Dass the learned counsel for the applicant/worker supporting the impugned order argued that the plea of the Employer/ Company about sustaining of losses has been examined in detail by the Labour Court and the same was found to be incorrect as the Employer/Company had obtained loan from the Banks for expansion of the establishment, which speaks of increase in demand and production. The interest being paid on the loans cannot be termed as loss. According to the learned counsel for the applicant/worker the retrenchment order was malafide and was on account of the trade union activities of the applicant who was earlier forced to resign from the office of General Secretary of the Union and subsequently he himself was removed from service. According to the learned counsel for the applicant provisions of Section 22-A IRO are not applicable in the instant case as the application has been filed by the applicant for redressal of his grievance arising out of the termination order, whereas the proceedings before NIRC were initiated by the CBA Union before issuance of termination order, therefore, order dated 3.5.97 passed by NIRC refusing to grant stay against the termination order cannot affect the maintainability of the grievance application. The findings of the learned Labour Court are stated to be in consonance with the evidence available on record and free from any legal infirmity leaving no room for interference.
Before going into merits, the objection raised by the employer/company about jurisdiction of Labour Court to adjudicate upon the matter already dealt with by NIRC requires to be examined. There is no dispute between the parties about filing of Case No. 4A (174/97/24 (203)/97 by Pioneer Cables Ltd. Mehnat Kash Union through its President Shakeel Ahmed against the employer/company. None of the party produced the copies of the application filed by CBA Union, however the plea of the CBA Union before NIRC as reflected by the order dated 3.5.1997 was that the CBA Union submitted charter of demands to respondent on 15.7.1996 but the respondent/company allegedly delayed the negotiation with intention to retrench the workers to avoid the charter of demands. It was further contended that the respondent/company has terminated services of 11 workers and intends to retrench more workers. CBA Union prayed for restraining the company from retrenchment of the workers. The CBA Union filed application for interim injunction whereupon ad interim injunction was granted vide order dated 29.4.1997, however the same was subsequently vacated vide order dated 3.5.1997 with following observations:--
"Admittedly the applicant union is collective bargaining agent since 7-6-1990 and within the period of 7 years there has been no instance quoted by the applicant regarding victimization of the office bearers or members of the union by the respondent. Respondent has already retrenched 11 workers and reasons shown by the respondent in the termination letters of those 11 workers is huge financial losses, lack of demands and lack of orders as such to re-organise their business. The respondent has right to re-organise the business to make it beneficial and profitable and run the same in the way he likes to have gain from the business. Respondent has right to retrench the workers but has to observe the provisions of S.O. 13 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 in case of retrenchment. There is no allegation by the applicant that in retrenchment of those 11 workers the respondent had violated the provisions of Standing Orders 13 of West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968. Obviously retrenchment of the workers will not fall with in the ambit of unfair labour practice, and it can only be considered as on act of unfair labour practice, if it is done due to malafide intention. Obviously at this stage on record there appears no malafide of the respondent in making retrenchment of the workers to re-organise his business to run it beneficially. Admittedly the party, who alleges malafide, has to prove it. It is, therefore, for the applicant to prove that there are malafides on the part of the respondent in making retrenchment of the workers, but so far no such malafide of the respondent appears on the record.
In the light of above reasons, I am of the view that the applicant has no prima facie case for grant of prohibitory order, restraining the respondent from making retrenchment of the workers, as such the application for vacating interim orders dated 29.4.1997 filed by the advocate for the respondent is allowed and interim prohibitory order passed on 29.4.1997 are vacated, and consequently application under Regulation 32(2) (c) of NIRC (P&F) Regulations, 1973 filed by the applicant CBA Union is dismissed. To come up on 19.6.1997 for filing affidavits-in-evidence by the applicant."
It is admitted feature of the case that applicant/worker and 10 others were removed on 26.4.1997, hence 11 workers referred in the above order are found to be applicant and 10 others, further the order reflects that the CBA Union did not challenge the termination/retrenchment of the 11 workers already removed, they prayed for injunction against further removal of workers. The applicant/worker though in his grievance application before Labour Court claimed to have been removed during the order of status quo passed by NIRC but his such plea is negated by he above referred order, besides the retrenchment order dated 26.4.1997 could not be stayed vide order dated 29.4.1999. Having in view the order dated 29.4.1997 it can safely be concluded that the proceeding before NIRC was not against the termination/retrenchment order dated 26.4.1997, hence maintainability of the grievance application filed by the applicant/worker before Labour Court challenging his termination order cannot be held to be not maintainable on said score and applicant/worker being aggrieved by his termination order could challenge the same under Section 25-A of IRO 1969 before Labour Court.
Adverting to the merits of the case, as already stated applicant/worker along with 10 others was removed from service vide retrenchment letter dated 26.4.1997. The letter received by the applicant/worker reads as under:--
"Due to huge financial losses, lack of demand and lack of orders, the Management have decided to re-organize their operations and retrench worker surplus to our requirement.
Keeping in view the principle of last in first out, your services for the aforesaid reasons are hereby terminated with immediate effect on payment of one month salary in lieu of notice. You are directed to collect your dues on any working day."
The applicant/worker disputing the plea of the employer/company claimed that the company was earning profit and bonus was given to its employees and contended that the termination order was malafide as the company did not approve his Trade Union Activities. However, the applicant/worker did not dispute the fact that he was Joint Secretary of the Mehnat Kash Union and he resigned from the said position on 21.8.1996 which was accepted by the CBA Union and was communicated to the Registrar of Trade Union on 17.10.1996 i.e. more than six months before the issuance of letter of retrenchment dated 26.4.1997 and applicant failed to bring on record any evidence about the Trade Union Activities being performed by him, which was cause of annoyance for the employer/company. At this juncture, once again reference is made to the admitted fact about removal of 11 workers including applicant, all other 10 retrenched workers accepted the termination order and collected their dues and their termination was neither stated to be malafide as on account of any Trade Union Activities. Above all, the terminated workers do not include any office bearer of the CBA Union and applicant worker who himself resigned from the office of Joint Secretary of CBA Union six months before issuance of retrenchment order and being failed to specify his involvement in Trade Union Activities cannot be said to have been removed from service mala fidely on account of his Trade Union Activities.
The employer/company produced the Annual Reports for year 1996/1997 to 2001/2002 showing that the company suffered financial loss during above period, which fact has been supported by the statement of Abdul Majeed Admin Officer who in cross examination admitted that in year 1997 despite sustaining of loss by the company the pay and number of directors and executives was increased. He further admitted that in year 1997 the number of workers was 170, which decreased to 70 and their pay has been increased. It was admitted by the representative of the company that in year 1998 Islamabad office was established, amount of Rs. 25000000/- and Rs. 3500000/- were spent in purchase of machinery and construction respectively and that the said amount was borrowed from bank.
The above statement of the representative of the company and the documents filed by him not only support the plea of company about suffering of financial loss but it also reflect that number of workers was reduced from 170 to 70 which fact by itself is enough to prove that the workers in large number were unnecessary/surplus whereas amount spent towards improvement of the establishment and that too by obtaining loan from bank cannot convert the loss into profit nor it can be considered unnecessary expenditures, while increase of pay of the employees of company to meet the inflation cannot be termed as unnecessary expenditure; whereas the undisputed annual financial reports reflect that the company was suffering loss continuously for three years, before issuance of retrenchment order of 11 workers including applicant, besides number of other workers had left, reducing the number of workers form 170 to 70 only. Having in view all the above factors the action of the company in the attending circumstances cannot be said to be for any reason but for re-organization of the establishment because of the financial loss being suffered by the company and to improve its viability by removing the surplus/unnecessary staff/ workers.
The applicant/worker has not challenged the plea of the company about his being amongst the juniors most workers who have been removed from service through retrenchment. In such view of the matter the removal of the applicant/worker cannot be termed to be in violation of provisions of Order 13 of the Standing Orders. The order of removal of the applicant/worker, therefore, was not open to any interference, accordingly the order dated 16.2.05 passed by 3rd Labour Court Balochistan at Hub is set-aside, resultantly the application filed by the applicant/worker under Section 25-A of IRO for his reinstatement by setting-aside by the retrenchment order dated 26.4.97 is dismissed.
Appeal is allowed, with no order as to cost.
(A.A.) Appeal accepted
PLJ 2006 Quetta 46
Present: Amanullah Khan Yasinzai, C.J.
BALOCHISTAN EMPLOYEES SOCIAL SECURITY INSTITUTION through its COMMISSIONER LABOUR COMPLES, QUETTA and 2 others--Appellants
versus
GATRON INDUSTRIES LTD., BALOCHISTAN--Respondent
Civil Misc. Appeal No. 4 of 2005, decided on 11.11.2005.
Provincial Employees Social Security Ordinance, 1965--
----Ss. 64 & 2(10)--Workers of respondent were run over by a taxi while waiting for bus outside the factory premises--Respondent's claim regarding medical expenses incurred upon them was accepted by Labour Court--Assailed--Held: Admittedly at the time of incident employees were, though on a public road, but were standing during course of employment & only for the purpose of waiting for conveyance after their working hours--As pick & drop service of workers also fell in the service hours on the theory of notional extension could be extended to the matter--Injured were admittedly rushed to the private Hospitals due to non-availability of the proper facility for their treatment in the Government Hospitals--Impugned order not interfered. [Pp. 48 & 49] A, B & C
Mr. Mushtaq Ahmad Anjum, Advocate for Appellants.
Mr. S.M. Yaqoob, Advocate for Respondent.
Date of hearing : 19.8.2005.
Judgment
Through this appeal under Section 64 of the Provincial Employees Social Security Ordinance, 1965; the appellants have assailed the judgment dated 3.2.2005 passed by 3rd Labour Court Balochistan Social Security Court at Hub whereby the appeal filed under Sections 55 and 59 of the Provincial Employees Social Security Ordinance, 1965 was accepted and the institution was directed to make payment of Rs. 3,90,351/- to the respondent for medical expenses incurred on its employees.
Brief facts giving rise to this appeal are that the respondent filed a complaint under Section 57 of the Ordinance praying for reimbursement of Rs. 3,90,351/- incurred on the treatment of nine workers of the company who after performing their duties were waiting for a Bus outside the factory premises, when a Taxi ran over them; causing injuries to them and one of them died at the spot. On 17.4.1998 the injured persons were taking to Bentwa Anees Hospital and Agha Khan Hospital Karachi for treatment. The respondent paid the said amount of Rs. 3,90,351/- as medical expenses and requested the Appellant No. 1 i.e. Balochistan Employees Social Security Institution through its Commissioner Labour Complex (herein after referred to as the institution) for reimbursement of the amount. The institution was refused to make payment of the same. The respondent filed an appeal under the Ordinance before the Commissioner Balochistan Employees Social Security Institution who after hearing the parties, rejected the complaint on the ground that the incident had taken place outside the factory premises vide order dated 5.7.2000. Being aggrieved from the same, the respondent filed a complaint before the Presiding Officer 3rd Labour Court Balcohistan Social Security Court at Hub which was accepted vide order dated 12.9.2001. Being aggrieved from the same, the appellants filed an appeal under Section 64 of the Ordinance before this Court which was registered as Civil Miscellaneous Appeal No. 19/2001, the same was partly accepted by this Court and the matter was remanded to the Commissioner Balochistan Employees Social Security Institution with the directions that opportunity be given to both the parties to lead evidence who rejected the claim of the respondent vide order dated 31.4.2004. Thereafter the respondents filed an appeal before the 3rd Labour Court Balochistan Social Security Court at Hub and the same was accepted vide impugned judgment dated 3.2.2005. Hence this appeal.
I have heard Mr. Mushtaq Ahmed Anjum, Advocate for the appellants and Mr. S.M. Yaqoob, Advocate for the respondent.
Mr. Mushtaq Ahmed Anjum, learned counsel for the appellants contended that the Labour Court erred in the law, accepting the appeal filed by the respondent by reversing the well reasoned Judgment passed by the Commissioner Balochistan Employees Social Security Institution and further stated that since the incident had occurred outside the factory premises. Thus under the ordinance the respondents are not entitled for any compensation.
Mr. S. M. Yaqoob, learned counsel for the respondents contended that after remand of the case by this Court, the parties were directed to lead evidence but the appellants did not cross examine the representative of the company who filed an affidavit which has not been rebutted and the claim as setup in the counter affidavit has not been disputed and further stated that the incident though happened outside the company premises under the theory of notional extension the respondent was entitled to the same. Learned counsel further argued that the workers were also compensated by the respondent but only the medical expenses have been claimed and further stated that the institution had a dispensary at Hub having no facilities. Thus on the approval of Senior Medical Officer of the Institution the injured were shifted to Bentwa Anees Hospital and Agha Khan Hospital Karachi, whereby the medical expenses were paid by the respondent. Thus the company is entitled for reimbursement of an amount of Rs. 3,90,351/-.
With the assistance of the learned counsel for the parties, I have perused the record of the case minutely.
Adverting to the contention of Mr. Mushtaq Ahmed Anjum, learned counsel for the appellants that though the incident took place outside the factory premises does not fall within the definition of the Ordinance as envisaged under Section 2 sub-section (10) of the Ordinance. It may be mentioned here that soonafter their duties the employees of the factory were waiting for a bus outside the factory premises and in the meanwhile, a taxi over ran the employees wherein one person died on the spot and nine received injuries. It may be pointed out that said question has been finally dealt-with by the learned Appellate Court holding therein that at the relevant time the workers were not independent and not connected with private activities and after the working hours, they were waiting for a bus. In this regard, the theory of notional extension is very much attracted as pick and drop of the workers also falls within the service hours. Admittedly the injured persons were waiting for a bus after working hours to go their homes. Thus the theory of notional extension can be extended as soonafter the company hours the injured persons waiting for transport and when they met with the said unfortunate accident. Admittedly at the time when the incident took place they were though on a public road but not standing for another purpose and it was very much during course of employment waiting for conveyance after working hours.
Coming to the contention of Mr. S.M. Yaqoob, learned counsel for the respondent that there is yet another factor which makes the company entitled for reimbursement of medical expenses. Admittedly a dispensary is established by the institution but there was no facility for curing such fatal accidents. Therefore, the injured workers were shifted soonafter the incident on the recommendations and approval of Senior Medical Officer present in the institution to Bentwa Anees Hospital and Agha Khan Hospital Karachi. In this regard reference may be made to the affidavit of Mr. Muhammad Ali Siddiqui, Personnel Manager of the Company which is very clear and after remand of the case by this Court to the Commissioner Balochistan Employees Social Security, no request was made for his cross examination. It is clearly mentioned in affidavit that soonafter the incident the injured were rushed to Ghulam Qadir Hospital and thereafter they were admitted in Bentwa Anees Hospital and Agha Khan Hospital Karachi as the Government Hospitals had no facility for treatment of such type of injured persons and besides, a letter was sent to the Senior Medical Officer of the area for referring the case of the injured to the said institution. In this regard a letter to Senior Medical Officer was also written and copy of the same was also sent to the institution. The said letter was also received by the Commissioner Balochistan Employees Social Security and by the company. It is worth mentioning that affidavit submitted by Mr. Muhammad Ali Personnel Manager reveals that the injured persons were waiting for the company transport to go their homes when they met with the unfortunate accident. Thus in the case in hand the theory of national extension applies as the injured were waiting for a bus which was authorized by the company.
Since the affidavit has not been disputed and the facts given in the affidavit are presumed to be accepted as the same were not disputed and no request was made for calling of the said witness for cross examination by the institution. Besides, there is another factor which makes the respondent entitled for reimbursement of the amount as during the course of treatment of injured persons a letter was written to the institution for reimbursement of the medical expenses incurred on the injured persons but no reply was received so far and it was deemed to have been approved/sanctioned.
Thus in view of the above discussion and findings given by the 3rd Labour Court Balochistan Social Security Court at Hub based on cogent and sound reasons warranting no interference by this Court, therefore, the appeal being devoid of merits is dismissed.
Parties are left to bear their own costs.
(J.R.) Appeal dismissed
PLJ 2006 Quetta 50 (DB)
Present: Mehta Kailash Nath Kohli and Muhammad Nadir Khan, JJ.
FAUJI FOUNDATION OF PAKISTAN, RAWALPINDI--Petitioner
versus
GOVERNMENT OF BALOCHISTAN through SECRETARY GOVERNMENT REVENUE DEPARTMENT & others--Respondents
C.P. No. 720 of 2000, decided on 28.6.2005.
West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----Preamble--Balochistan Land Lease Policy--Transfer of Government Land on nominal price on recommendation of deputy commissioner and commissioner of respective area--Transferee's contention that land in question was allotted under West Pakistan Land Revenue Act, 1967 was repelled--Transferee's could not point out any provision of the Act of 1967, where under transfer in question was made--Transfer of land in question, was subsequently cancelled under Balochistan cancellation of illegal Allotments of State Land Ordinance, 1993--Member Board of Revenue on revision filed by transferees restored transfer of land in their favour--Government's review petition against order of restoration was accepted by Full Board of Revenue and order of restoration was set aside--Revision filed by transferees before Member Board of Revenue indicated that transferees only claimed occupancy tenancy, while order of restoration of transfer of land had been made--Transferees thus, could not be allowed to retain ill-gotten gains--Provisions of Balochistan Land Lease Policy were not followed at the time of transfer--Transferees had sold land within twenty eight days at exorbitant rate which shows that transfer was collusive and shaky which could not be allowed to stand--Order of Full Board of Revenue cancelling order of restoration was thus, maintained. [Pp. 56 & 57] A & B
2000 MLD 2015; PLD 1979 Note 82; 1989 MLD 2876; 2002 SCMR 122; AIR 1952 SC 252; PLD 1985 Quetta 192 and PLD 1984 Quetta 158, ref.
Mr. Muhammad Aslam Chishti, Advocate for Petitioner.
Mr. Amin-ud-Din Bazai, Addl. A.G. for Respondents Nos. 1 to 3.
Mirza Hussain Khan, Advocate for Respondents Nos. 4 to 32.
Date of hearing : 20.6.2005.
Judgment
Mehta Kailash Nath Kohli, J.--This petition has called in question, judgment dated 10th July, 2000, passed by Full Board of Revenue in Review No. 29 of 1997.
Facts of the case, in brief, are that a piece of land situated in Muaza Kund Tehsil Hub, District Lasbella, measuring 1700 acres, was transferred to Respondent Nos. 4 to 32, on their application, at the rate of Rs. 250/- per acre, vide order dated 20th February, 1992. Said order shows that the land was sold to the inhabitants of Mauza Kund on the recommendations, made by Deputy Commissioner Lasbella and Commissioner Kalat Division, and; distribution was to be made by the then Member, National Assembly Mr. Bizan Bizenjo. The order, whereby; transfer had taken place, is reproduced as under:--
"BOARD OF REVENUE BALOCHISTAN.
Dated Quetta the 20th February, 1992
ORDER
No. 223-8/83-Rev. In exercise of the powers conferred upon him vide Notification No. 490-8/86-Rev: dated 15th March, 1988 and in partial modification of this Board's Order of even number dated 8th February, 1992, the Member-II, Board of Revenue, Balochistan is pleased to transfer Government land measuring 1700-0-0 acres situated in mouza Kund, Tehsil Hub District Lasbella in favour of the inhabitants of mouza Kund at the rate of Rs. 250/- per acre as recommended by the Deputy Commissioner, Lasbella and Commissioner, Kalat Division. The distribution of the land in question will be made with the association of Mr. Bizan Bizenjo, M.N.A.
Sd/-
(KHUDAIDAD KHAN)
Member-II, Board of Revenue, Balochistan."
Record shows that in pursuance of said order, entries in the names of private respondents were made in revenue record, vide Mutation No. 709 dated 22nd September, 1992. Record further shows that vide Mutation No. 721, land measuring 291 acres, 3 rod, 4 pole, was sold to petitioner for a consideration of Rs. 46,97,577/- at the rate of Rs. 16,000/- per acre. So, entries in the revenue record were made in favour of petitioner, vide order dated 20th October, 1992, after about twenty eight days of entries, made in revenue record, in favour of private respondents. Record shows that vide order dated 28th February, 1993, said entries were directed to be rescinded by Board of Revenue and entry in this regard, was made by revenue staff, copy whereof is available on record.
It is to mention here that a meeting was statedly chaired by Chief Minister Balochistan and in pursuance to the minutes/decision in the said meeting, all allotments/transfers of State lands made after 28th October, 1991, were decided to be cancelled, and thus, on 23rd July, 1992 Board of Revenue Balochistan forwarded minutes of meeting, to all Commissioners and Deputy Commissioners/ Political Agents in Balochistan. It is also noted that subsequently; in October, 1993, an Ordinance in the name of `The Balochistan Cancellation of Illegal Allotments of State Land Ordinance, 1993', was promulgated, and; by virtue of Section 3 of said Ordinance, all the allotments made during the period between 15th March, 1988 and 18th August, 1993 (both days inclusive), were declared to be cancelled. Subsequently, said Ordinance was tabled before Balochistan Provincial Assembly and, thus; an Act was promulgated i.e. Balochistan Cancellation of Illegal Allotments of State Land Act, 1996 (Balochistan Act No. V of 1996), wherein; also the period within which allotments were made and directed to be cancelled, remained the same, as was in Ordinance.
Respondent Nos. 4 to 32 filed Revision petition before Member-III, Board of Revenue Balochistan on 8th January, 1997, after a period of five years, however, they had not disclosed the fact that they had sold the property. It was stated and prayed that the said piece of land be restored in their favour as being `occupancy tenants'. Following prayer was made in the Revision Petition:--
"In view of the above submissions it is, therefore, respectfully prayed that case of the petitioners for the lands mentioned in foregoing paras be restored as occupancy tenants. The petitioners are ready to abide by all the terms and conditions of the allotment."
Learned Member-III, Board of Revenue Balochistan, vide order dated 28th January, 1997, granted relief and came to the conclusion that the said allotment orders are not covered within the ambit of `cancellation, as no justification exists'. Observations recorded by learned Member-III, are also reproduced herein-below:--
"4. After going through the record placed in the file, I am of the view that such following mutations serial Nos. 704, 705, 707, 709 and 710 Lands based on the subject allotment Orders are not within the ambit of cancellation, as no justification exists for cancellation at will. PRAYER of the petitioners is accepted.
The entries in the Record of Rights in favour of Petitioners be restored accordingly."
Against the aforementioned order, a
Review petition, was filed by Government of Balochistan through Deputy
Commissioner, District Lasbella, on 28th June, 1992 within the purview of Section-8 of West
Pakistan Board of Revenue Act, 1957, alongwith application under Section-5 of
Limitation Act. At this juncture, the petitioner filed an application for impleading them as party to the proceedings on the ground that the property was purchased by petitioner. Record shows that mutation entries were cancelled by the Revenue staff in pursuance to the directions made earlier, vide order dated 28th February, 1992.
The Full Board of Board of Revenue had already condoned delay vide order dated 12th July, 1997, and; after providing opportunity of being heard, the learned
Board unanimously vide judgment dated 10th July, 2000, directed to set aside order dated 28th January, 1997, passed by Member-III, Board of Revenue
Balochistan. Learned Full Board came to the conclusion that the submission made by respondents before Board of Revenue, were dealt with; (i) that they are not in peaceful possession and occupation of the land; (ii) Member-III, Board of
Revenue had passed the order, without calling for the record and examining the same; (iii) respondents are neither legal allottee nor had remained tenants of
Government lands. There is nothing on record with regard to leasing out of the land, and thus; occupancy tenancy do not exist at all; (iv) the Member-III, Board of Revenue had no authority under law to set aside orders of cancellation, passed by Chief Minister Balochistan and proper forum was High
Court, as such, order of restoration passed by Member-III, Board of Revenue was without lawful authority and jurisdiction; (v) Respondent Nos. 43 to 88 had not challenged cancellation of Mutation Entry No. 707 dated 22nd September, 1992, which related to 96 acres of land, but Member-III, Board of Revenue set aside the same and restored in their favour; (vi) Khasra Nos. 167, 482 and 488 measuring 133 acres, 3 rod and 18 pole, were never recommended by the Deputy Commissioner or Commissioner Kalat, nor the same were allotted by the Board of Revenue and have been transferred in the name of intervener; disciplinary action was directed against Girdarwar' andPatwari', and the order passed by Member-III, was ordered to be set aside. Learned Board had taken note of Assistant District
Attorney, who had not sought time for filing of parawise comments and had participated in the proceedings. It was also observed that the petitioner purchased at rate of Rs. 16,000/- per acre after lapse of twenty eight days of purchase from Government of Balochistan at the rate of Rs. 250/- per acre, appears to be shaky transaction and selection of project on the said area, arrangement of huge amount within twenty eight days were appeared to be not bonafide transaction. It was observed by the Board, concerning to intervener to take action against the concerned official, who is responsible in causing loss to the Government and petitioner. It was also suggested that the intervener may approach Government of Balochistan in order to get proper allotment of said land.
Against the aforementioned judgment, petition was preferred before this Court, which was admitted for Regular hearing. Notice of the petition was given to the Member, Board of Revenue, as well as Advocate General.
We have heard Mr. Muhammad Aslam Chishti, learned counsel for petitioner, while official respondents were represented by Mr. Amin-ud-Din Bazai, learned Additional Advocate General, Mirza Hussain Khan, Advocate appeared for private respondents.
Learned counsel for petitioner stated that Board of Revenue did not have jurisdiction under West Pakistan Board of Revenue Act, 1957 to review an order passed by the Single Member; (ii) it was further stated that revision was filed and it could not be termed as review. Learned counsel has criticized decision of Full Board, who had carried out the policy decision of Chief Minister, arrived at. It was also averred that formal cancellation order was required to be issued. Learned counsel has also challenged that the order of cancellation did not fall within this ambit of Ordinance-6 of 1993 and Act-V of 1996, as also under provisions of Land Lease Policy, 1998, which were not attracted to the transfer of land, made by the Board. It was also canvassed that the learned Full Board had no jurisdiction to review the order on application, which was a revision petition and also the same was barred by time. The cancellation of mutation entries, which existed in favour of petitioner, were also challenged.
On the other-hand, learned Additional Advocate General has contended that action was taken after the retirement of Member-III, Board of Revenue, who had passed orders of restoration, without proper notice and examination of record. It was also stated that the petitioner filed before the Member-III, Board of Revenue, was not entertainable, as no appeal was filed. The other limb of the argument was that the said revision petition was barred by limitation of five years, and; no application for condonation of delay was placed on record. He made allegations that the transaction between petitioner and that of private respondents was also illegal and shaky; it has been stated that the land after purchase at the rate of Rs. 250/- per acre, immediately was transferred to the petitioner at the rate of Rs. 16,000/- per acre within twenty eight days, everything was settled. It was also convassed that Member, Board of Revenue Balochistan had no lawful authority to direct that the order of transfer of land did not fall within the ambit of decision of cancellation passed by Chief Minister. Learned counsel appearing for private respondents had also supported arguments advanced by petitioner's counsel.
We have heard arguments of parties' counsel and carefully examined record of the case. It is to note that by virtue of Ordinance-V of 1993, all the transactions made during 15th March, 1988 and 18th August, 1993 (both days inclusive), were directed to be cancelled and he said Ordinance was thereafter made an Act (Balochistan Act No. V of 1996) by Balochistan Provincial Assembly. However, period within which allotments were made and were decided to be cancelled, remained the same.
In order to deal with the points raised by counsel for petitioner that the Board of Revenue had no jurisdiction to deal with the matters; exercise of authority has been made within the provisions of Section-8 of West Pakistan Board of Revenue Act, 1957. For reference, Section-8 of the Act is reproduced herein-below:--
"8. Review of order by the Board.--(1) Any person considering himself aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason desires to obtain a review of the decree passed or order made against him may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require.
(2) Every application for a review of a decree or order under sub-section (1) shall be made within ninety days from the date of that decree or order."
Above provision of law clearly authorizes Board of Revenue to exercise right of review in respect of any order, discovery of new and important matter or mistake of error on the face of record. The said order was challenged by the Government of Balochistan, when they came to know that Member-III, Board of Revenue had not properly exercised the authority, after lapse of five years. The Board also observed that the order impugned, was not legal and was without authority and jurisdiction. A Division Bench of this Court in case of Munawar Kashan and another versus Government of Balochistan through Secretary, Revenue, Balochistan Civil Secretariat, Quetta and 2 others (2000 MLD 2015) while interpreting provisions of Section 8 of the Act XI of 1957, was pleased to observe as under:--
"... ... ... It may not be out of place to mention here that admittedly the power of review are not available under West Pakistan Land Revenue Act, 1967 (XVII of 1967) but is available under Act XI of 1957. Words `for any other sufficient reason' are capable enough to meet all sorts of such eventualities as employed in Section 8 of Act XI of 1957. To be read ejusdem generis with words preceding same and laying down grounds for interference in review. We are conscious of the fact that every cause would not allow to press the review in service but where sufficient reasons are available such review can be made. In this regard reference can be made to PLD 1979 Note 82 at P. 57. It hardly needs any elaboration and as mentioned hereinabove that expression "for any other sufficient reason" appearing in Section 8 is capable enough to re-empower Board of Revenue to rectify the errors committed in a revision order (1989 MLD 2876)."
Thus, argument raised in this behalf by the learned counsel for petitioner may not found to be correct and following the above dictum, made by this Court, the objection raised by learned counsel for petitioner, is repelled.
Second question for consideration is as to whether Section-5 of Limitation Act being not applicable under the Land Revenue Act, the application for condonation of delay was misconceived. Suffice to state here that learned Member, Board of Revenue had condoned limitation by means of order dated 12th July, 1997, said order was not challenged in the prayer clause of petition, and; the learned Full Board of Revenue found that the order impugned before them, was void and was made capriciously and thus; had condoned delay. The Honourable Supreme Court has also observed in the case i.e. Sardar Ahmed Yar Khan Jogezai and two others v. Province of Balochistan (2002 SCMR 122), that in case, if the Order is passed and the exercises of jurisdiction were made in the manner, which is against the provisions of law or had exceeded authority, prescribed by law, the question of limitation looses its significance. Relevant observations are reproduced as under:--
"7. Admittedly the appeals were filed with a delay of 45 days but in view of the chequered history of the case and order of the executing Court which is not only coram non-judice but nullity in the eyes of law and thus, the delay has rightly been condoned because under the garb of limitation blanket authority cannot be given to executing Courts to modify the decrees passed by the appellate Courts which would not only be contemptuous but amounts to misconduct."
Pivotal question involves in this case, as to whether, Member, Board of Revenue had the authority to transfer the Government land at the rate of Rs. 250/- per acre, on the recommendations of Deputy Commissioner and Commissioner of respective Divisions. The provision of Land Lease Policy is the only law, which applies to Province of Balochistan. Learned counsel was confronted to said position, as also observations made by the Honourable Supreme Court in the cases i.e. Constitutional petitions Nos. 6 to 9 of 1994, titled Nawabzada Jahangir Shah Jogezai and others vs. Province of Balochistan and others' decided on 2nd November, 1998. Learned counsel contended that the provision of Land Lease Policy, do not apply and the initial transaction was made by Board of Revenue under the Land Revenue Act. However, learned counsel for the petitioner had failed to point out any provision of law, which infused the powers to the Board of Revenue to transfer land Relevant observations in above noted Constitutional Petition, decided by the Honourable Supreme Court are reproduced as under:--
"17. Prima facie the above order of transferring the ownership rights could not have been made under the above Scheme. The Chief Minister had no power to grant ownership by bypassing the above Scheme, under which the ban on allotment of State land was lifted."
The observations made by a Division Bench of this Court in the case, referred to above (MLD 2000 (Quetta) 2015) are also reproduced as under:--
"... ...The land Mafia cannot be allowed to grab huge parcel of lands worth whereof runs into billions on the basis of hypertechnical suppositions and twisting the law. The illegal and unlawful. title cannot be controverted in a lawful title while exercising Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan as the Court has not been approached with clean hands and accordingly the petition being devoid of merit is dismissed."
Learned counsel for petitioner had admitted before us, that he has not challenged the viries of Balochistan Cancellation of Allotments of Lands Ordinance, 1993, however, he was of the view that said provision, would not apply, as the Chief Minister had taken action in the Policy decision. Learned counsel has not been able to support his contentions by any law, that Ordinance-V of 1993 and Act-VI of 1996 do not apply on the facts and circumstances of present case and is entitled to said land legally, and; time and again agitated that Fauji Foundation is an organization established by the Finance Ministry, who had wanted to establish a `power project' over the land. It was also stated by learned counsel that petitioner had purchased 491-2-9 acres of land for establishing of said project.
Learned counsel for respondents were of the view that the petition is not maintainable as the Member-III, Board of Revenue has seriously erred in restoring the property on the ground, which was alien in law. It was also argued that prayer clause in the revision petition related to occupancy tenant, while they were not occupying the said land and according to petitioner, they had already purchased the same. Learned Additional Advocate General was of the view that the transfer was made under the garb of provisions of Land Lease Policy dated 15th March, 1998, as indicative from the order, reproduced herein-above. He was of the view that Balochistan Land Lease Policy cannot be applied for transfer of land; in the present case, as the conditions of grant of lease and eligibility for transfer of lands, were not available to the private respondents. The revision petition, so filed, indicates that petitioner only claimed `occupancy tenant', while the order of restoration of transfer of land has been made. The petitioner, thus, cannot be allowed to retain ill gotten gains, even provisions of Land Lease Policy, were not followed at the time of transfer. The transfer made originally in favour of respondents, was also void having been made without backing of law.
There is yet another aspect that the Member, Board of Revenue could have leased out lands initially without determination of tenancy and having advertised in news papers, publicly, he had no jurisdiction to transfer/sell the Government land in such like manner. Moreover, transaction had taken place within twenty eight days, appears to be collusive and shaky, as observed by the Full Board. Petitioner thus, has not approached the Court with clean hands and cannot be granted relief, as prayed for.
The Honourable Supreme Court of Pakistan in the case referred above i.e. Nawabzada Jahangir Shah Jogezai and others. Vs. Province of Balochistan and others, has held in the following terms:--
"19. That in view of the above factual and legal position, we are not inclined to go into the question of vires of the impugned Ordinance. Mr. Yahya Bakhtiar has referred to a judgment of the Indian Supreme Court in the case of The State of Bihar versus Sir Kameshwar Singh (AIR 1952 Supreme Court 252) in which the Indian Supreme Court has held that Bihar Land Reforms Act was ultra vires of the Indian Constitution for want of providing compensation for acquiring the land and lack of public purpose. The above case has no application. The instant case involves the cancellation of the transfers/allotments which were not competently made outside the Scheme notified through the aforesaid Gazette dated 16.3.1988 by the Balochistan Government. The above cases are not fit for invoking constitutional jurisdiction in terms of the above judgments referred to hereinabove in Para No. 14. Besides the above referred judgments, reference may also be made to the case of Salahuddin Khan and 10 others versus Member, Board of Revenue III and 18 others (PLD 1985 Quetta 192) in which it has been held by a Division Bench of the High Court of Balochistan that as the order granting sale of land to private persons by Revenue Authority was without jurisdiction, the High Court while exercising constitutional jurisdiction would not perpetuate an order which "might be without jurisdiction in absence of good reasons. We may also refer to another judgment of a Division Bench of the same High Court in Bakhtiar and 3 others versus Member III, Board of Revenue, Balochistan, Quetta and 20 others (PLD 1984 Quetta 158) in which it was held that the constitutional jurisdiction of the High Court can be invoked in aid of justice and not to help retention of ill-gotten gains."
For the reasons stated above, petition is accordingly, dismissed, with no order as to costs.
(A.A.) Petition dismissed
PLJ 2006 Quetta 58
Present: Muhammad Nadir Khan and Mehta Kailash Nath Kohli, JJ.
WATER & POWER DEVELOPMENT AUTHORITY through its CHAIRMAN, WAPDA HOUSE LAHORE and 3 others--Appellants
versus
MIR KHAN MUHAMMAD KHAN JAMALI and another--Respondents
C.A. No. (S)06 of 2004, decided on 1.10.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O. XLIII, R. 1 & O. XX, R. 5--Ex-parte decree passed by trial Court, assailed--Record showed that respondent had produced evidence, therefore, trial Court was required to have adjudicated upon matter involved therein and decided the same in accordance with provisions of O. XX, R. 5 C.P.C.--Trial Court had decreed suit without examining merits and demerits of case, thus the same cannot be termed as valid, legal and proper order in as much as, ex-parte order/judgment passed under O. IX, R. 6 C.P.C. ought to be a speaking order/Judgment--Initial order of trial Court being void, limitation would not run in the way of Court in deciding the same--Application for setting aside ex-parte decree was deemed to be within limitation--Case was remanded for decision afresh in accordance with law. [Pp. 62, 63 & 64] A, B & C
PLD 2002 SC 84; 2003 SCMR 1840, ref.
M/s. Ch. Mumtaz Yousaf & Javed Iqbal, Advocates for Appellants.
Mr. Abdul Ghani Mithal, Advocate for Respondent No. 1.
Mr. Abdul Raheem Mengal, Asst. A.G. for Respondent No. 2.
Date of hearing : 17.9.2005.
Judgment
Mehta Kailash Nath Kohli, J.--Facts of the case, in brief, are that Respondent No. 1 filed a suit for declaration, damages and recovery of Rs. 20,37,635/- against appellants and Respondent No. 5, in the Court of Senior Civil Judge, Jaffarbad at Dera Allah Yar bearing First Class Suit No. 15 of 1998 dated 4th May, 1998. It was stated in the plaint that in the Elections 1996-97, Respondent No. 1 had filed his nomination papers to contest election against the seat of PB-21 Jaffarabad-II (Balochistan Provincial Assembly). It was further stated according to Elections Rules, before filing of nomination papers and scrutiny thereof, a candidate had to clear all the out-standing loans being obtained from any Bank, Financial Institution, Co-operative Society or any Corporate body or other liabilities of the Government or that of any Semi-Government Corporation, including the utility bills etc. Lists from each of above said authorities/departments, issued in respect of out-standing dues against contesting candidates, were produced before Returning Officer, PB-21, Jaffarabad-II. It was the case of Respondent No. 1/plaintiff that Respondent/Defendant No. 3 had issued some false, wrong and fabricated electricity bills, wherein; and amount of Rs. 10,37,635/- was shown out-standing against Respondent No. 1, details whereof; are reproduced as under:--
(i) Bill dated 22.12.1996, issued by the Superintendent Sub-Office, WAPDA, Operation, Dera Allahyar for Rs. 2,51,519-00;
(ii) Bill dated 22.12.1996, issued by the Superintendent Office, WAPDA, Operation (E) Dera Allahyar ........Rs. 2,13,320-00;
(iii) Bill dated Nil, with due date for payment on 28.12.96, issued by Sub-Division Operation (E) WAPDA Dera Murad Jamali, .......Rs. 5,10,452-00;
(iv) Bill dated 24.11.96, of Sub-Division Usta Muhammad (City Feeder) .........Rs. 62,344-00;
Total : Rs. 10,37,635-00.
It is the stand of Respondent No. 1 that he had no such electricity connections, for which the above said bills were shown outstanding against him, as he is not in possession of any such premises, mentioned in the bills, as well as, no meter number was mentioned and also most of the relevant columns of bill, were blank. Respondent No. 1 in order to get his nomination papers accepted, was compelled to deposit the above said un-due amount in National Bank of Pakistan, which he was not liable to pay in respect of electricity charges. It was claimed in the suit that Respondent No. 1 was un-aware of alleged dues of WAPDA, because he had never received such bills from concerned authorities, and; the same were manipulated at the instance of his political rivals. Following relief was sought by Respondent No. 1. :--
"That the plaintiff, therefore, prays for judgment and decree in his favour and against the defendant as under:--
This Hon'ble Court may be pleased to declare that the action of Defendants Nos. 1 to 4 to supply the false, fabricated and manipulated outstanding Electricity charges bills against the plaintiff as stated above was illegal, unlawful without jurisdiction actuated by malice and mala fides and was not binding upon the plaintiff and the plaintiff is entitled to recover the said amount with damages to the tune of Rs. 20,37,635/-;
To grant a decree for the sum of Rs. 20,37,635/- in favour of the plaintiff against the Defendants Nos. 1 to 4 payable jointly and severally by Defendant Nos. 1 to 4 to the plaintiff;
To grant costs of the suit alongwith any other relief deemed fit and proper to meet with the ends of justice."
Written statement was filed on behalf of appellants/Defendants Nos. 1 to 4, whereby; claim of Respondent No. 1 was repudiated by raising legal objections i.e. (i) suit is bad of non-joinder and mis-joinder of necessary party; (ii) suit is not maintainable under Order-VII, Rule-11 CPC, as no cause of action had accrued to the Respondent No. 1 for initiating present proceedings; (iii) the Respondent No. 1 has concocted a frivolous story and has not approached the Court with clean hands by concealing the material facts, (iv) suit is barred by time and is not maintainable under Section 42 of the Specific Relief Act, as no lawful rights of Respondent No. 1 have been infringed by the Appellants/Defendants Nos. 1 to 4. On merits, suit was contested, wherein; it was stated that case of Respondent No. 1 was covered within the ambit of defaulter of WAPDA, on account of which, his nomination papers were liable to be rejected, as such, he approached Appellant No. 3 and after obtaining duplicate bills, same were deposited, therefore, no question of fabrication or false bills arises, as authenticity of said bills were not challenged before any forum. It was further stated that Respondent No. 1 was liable to deposit the above said bills, and deposit thereof, does not amount to damage his reputation.
Out of pleadings of parties, learned trial Court framed following issues:--
"ISSUES
(1) Whether the suit is not maintainable in view of P.L.O. (i, ii) and (vi to ix) of the written statement?
(2) Whether the defendants have issued false bills to the plaintiff?
(3) Whether the plaintiff approached the defendants for correction or verification of the said bills?
(4) Whether the plaintiff had ever applied for electricity connection for the premises shown in the bills?
(5) Whether the plaintiff was given such connection, if so since when, and under what meters No.?
(6) Whether the plaintiff is entitled to any damages?
(7) Whether the plaintiff is entitled to relief prayed for?
(8) What should the decree be?"
After assessment of evidence, learned trial Court vide judgment and decree dated 24th September, 1999, suit was decreed ex-parte in favour of Respondent No. 1. Against aforementioned judgment and decree, appellants filed application under Order-IX, Rule-13 CPC, which alongwith application under Section-5 of Limitation Act were allowed at the cost of Rs. 300/- vide order dated 3rd December, 1999, but the appellant had failed to pay cost, thus; vide judgment and decree dated 18th January, 2000, learned trial Court had decreed the suit in favour of Respondent No. 1. Record shows that Respondent No. 1/decree holder filed application for execution of decree on 2nd January, 2003 and the learned trial Court vide order dated 21st November, 2003, set aside judgment and decree dated 18th January, 2000 with direction that the suit be re-registered and proceedings be made in accordance with law from the stage of ex-parte decree. Against aforementioned order, revision petition was filed before this Court, and vide order dated 1st April, 2004, impugned order was set aside and the matter was remanded to trial Court for passing fresh order after providing opportunity of hearing to respective parties. The learned Senior Civil Judge, Dera Allah Yar i.e. trial Court after appraisal of evidence, vide order dated 28th May, 2004, rejected the application under Order-IX, Rule-13 CPC alongwith application under Section-5 of Limitation Act. Against the aforementioned order, present appeal has been filed.
We have heard Messrs Chaudhry Mumtaz Yousaf learned Standing Counsel and Mr. Javed Iqbal, Advocate for appellants, while Mr. Abdul Ghani Mithal learned counsel appeared for Respondent No. 1, as well as, Mr. Abdul Raheem Mengal, learned Assistant Advocate General appeared on behalf of Respondent No. 2.
It has been contended by learned Standing Counsel that the initial order/decree passed by the trial Court is not a speaking judgment and has not resolved the controversy, thus, impugned order/decree was void and the limitation could be condoned and should not be considered a hurdle in setting aside the order. He has further contended that application was filed under Section 5 of the Limitation Act, wherein, question was raised that it was a void order and period of delay in filing the application, has to be condoned. It was further canvassed that period for filing the application is covered within the purview of Section 181 of Limitation Act, and thus, period of limitation is three years and there is no delay in filing the application.
On the other-hand, learned counsel for respondents have supported the judgment passed by the trial Court and was of the view that a time barred application was filed and could not have been entertained.
In order to appreciate the factual controversy, reference to pleadings of parties has been made supra and the issues have also been reproduced herein-above. The contents of final judgment dated 18th January, 2000, whereby; learned trial Court had decreed the suit of Respondent No. 1, are reproduced herein-below:--
"18.1.2000. Attorney for the plaintiff alongwith his counsel Mr. Abdul Ghani Mithal, Advocate present. Nobody is present from the side f defendants.
From the perusal of the record it is revealed that defendants' application under Order IX, Rule 13 C.P.C. and application under Section 5 of Limitation Act were allowed at a cost of Rs. 300/- on 3.12.99 and set aside, but up till now the defendants have failed to pay cost imposed on them, and today too the defendants have failed to appear in the Court. Therefore since ex-parte proof on affidavit from the side of plaintiff is already available on record. As such under Order IX of C.P.C. the suit of the plaintiff is again ex-parte decreed in favour of the plaintiff and against the defendants. Decree sheet be drawn.
However, parties are left to bear their own costs."
On perusal of above order, it reveals that Respondent No. 1 had produced evidence and it was incumbent upon the trial Court i.e. Senior Civil Judge Jaffarabad at Dera Allah Yar to have adjudicated upon the matter and decided the same in accordance with the provisions of law. The
said order, which is a basic order, offends the provision of Order-XX Rule-5 of the Civil Procedure Code and the Court below has decreed the suit without examining the merits and demerits of the case, and; cannot be termed as valid, legal and proper order, even; the ex-parte order/judgment is required to be a speaking order/judgment, even passed under Order-IX Rule-6 of the Civil Procedure Code. We are supported by the view expressed by their lordships in case Shamroz Khan and another v. Muhammad Amin and others (PLD 1978 SC 89). Relevant observations of their lordships while interpreting Order-IX Rule-6 CPC, are reproduced herein-below:--
"The words "and pass decree without recording evidence" were inserted by the Law Reforms Ordinance, 1972 and we would observe here that before this amendment the consistent practice of the Courts was to record evidence before decreeing a suit under this rule. This practice of recording evidence could lead to delays and as submitted by Mr. Inayat Elahi the object of the amendment was to empower the Courts to decide a case without recording evidence. But does this mean that the question was left to the discretion of the Courts or does it means as submitted that it was incumbent on Courts to decree a suit without recording evidence? If Mr. Inayat Elahi's submission is correct, Courts would be compelled to decree patently time-barred suits or suits which were patently dishonest or which contained absurd and exaggerated claims. Such an intention cannot lightly be attributed to the Legislature, nor would we be justified in doing so because the amended rule now reads :
".....the Court may proceed ex-parte and pass decree without recording evidence......"
This means that the Court may proceed ex-parte and that it may pass a decree without recording evidence. The word "may" here imports discretion and means may, not shall, therefore, when a Court strikes off the defence of a defendant, it has further to decide, in the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence or without recording evidence and like all discretion vested in the Courts, this discretion must be exercised judicially. In the instant case, however, the suit was decreed against the said respondents merely because their defence was struck off, therefore, on this ground also the suit was illegally decreed against the said respondents."
Following the above dictum of law, we are of the considered opinion that the initial order has been made without following the provisions of law and has not decided the controversy in dispute.
The Next question, raised by learned counsel for respondents that the application was filed with considerable delay, and thus, the same was not maintainable in law. The Hon'ble Supreme Court in the cases of void orders, have delivered numerous judgments, wherein, it has been held that if the initial order is void and against the mandatory provisions of law, limitation would not run in the way of Court in deciding the same. In the case in hand, it has already been observed by us that the initial order has not been legally and properly made, as such, delay in filing the application would not technically non-suit the appellants merely on this count. We are fortified with the view expressed by their lordships in the case of Hyderabad Development Authority through M.D. Civic Center Hyderabad v. Abdul Majeed and others (PLD 2002 SC 84). Relevant observations are reproduced herein-below:--
"13. .......Even otherwise if on merits the respondents have no case then limitation would not be a hurdle in the way of appellant for getting justice and in such-like situation the Courts should not feel reluctant in condoning the delay depending upon facts of the case under consideration."
Their lordships in another case titled Ashiq Hussain Shah v. Province of Punjab through Collector District, Attack and 6 others (2003 SCMR 1840), are of the view that in such like cases, a party should not be non-suited on technical ground. Although, it is correct that the WAPDA authorities had not properly watched the interest of their employer and had failed to appear before the Court of law, till filling of execution proceedings and; did not bother about the progress of the case. There might be some official, in league with Respondent No. 1. Relevant observations in the aforementioned case, are reproduced as under:--
"4. ......The manner in which the matter was pursued by the subordinate officials would show that they did not properly watch the Government interest and the possibility of their being in league with the petitioner being not ruled out, we are not in favour of non-suiting the respondents on technical grounds and would prefer that the rights of parties should be determined in the property on merits, therefore, notwithstanding the disposal of appeal on merits without dealing with the question of limitation in express words, it would be deemed that there was implied condonation of delay."
In the circumstances of the case, we allow this petition and direct setting aside of impugned orders passed by the Courts below as also ex-parte decree passed by the trial Court, and; remand the matter to the trial Court with direction to record the evidence of respective parties and after providing opportunity of being heard, should decide the matter on its own merits.
Appeal is accordingly allowed with no order as to costs.
(A.A.) Appeal accepted
PLJ 2006 Quetta 65 (DB)
Present: Raja Fayyaz Ahmad, C.J. and Akhtar Zaman Malghani, J.
SAIFULLAH KHAN--Petitioner
versus
HAFIZ HAMDULLAH and 4 others--Respondents
C.P. No. 46 of 2003, decided on 27.7.2005.
(i) Constitution of Pakistan, 1973--
----Art. 199--Writ of quo-warranto--Person applying for writ of quo-warranto need not be "aggrieved person"--Any person can lay information before High Court for enquiring from person holding any public office as to under what authority he was holding that office. [P. 70] A
(ii) Conduct of General Election Order, 2002--
----S. 8-D (2)(k)--Representation of the People Act (LXXXV of 1976), Ss. 99(1-A)(k)--Acceptance of petitioner's resignation with retrospective effect--Such fact could not remove disqualification as provided in Ss. 8-D (2)(K) of Conduct of General Election Order 2002 coupled with S. 99(1-A)(k) of Representation of the People Act, 1976. [P. 73] C
(iii) Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 99(1-A), (k)--Conduct of General Election Order 2002, Ss. 8-D (2)(k)--Petitioner's employment as teacher in Education Department of Government--Resignation of petitioner from service on 1.12.2001--Acceptance of resignation of petition from 1.1.2002--Petitioner ceased to be in service of Pakistan from 1.1.2002 i.e., the date of acceptance of his resignation--Two years having not elapsed when he contested election for Provincial Assembly conducted on 12.10.2002, he was disqualified to become member of Provincial Assembly. [P. 71] B
(iv) Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 14(5), (5-A)--Constitution of Pakistan (1973), Art. 199--Jurisdiction on Election Tribunal--Extent of--Election Tribunal was not conferred with jurisdiction to examine validity, legality, justification or vires of order passed by competent authority or any notification issued by such Authority--High Court in terms of Art. 199 of the Constitution has wider powers than Election Appellate Tribunal--Constitution petition in the nature of writ of quo-warranto was thus, competent, requiring a person to show as to under what authority of law, he was holding office of Member of Provincial Assembly--Order/notification of Election Commission that petitioner was elected as Member of Provincial Assembly was thus, without lawful authority and of no legal effect--Election commission was directed to withdraw notification by which respondent was declared to have been duly elected. [P. 74] D, E
PLD 1974 SC 284; PLD 1987 SC 32; PLD 1988 SC 416; PLD 2003 Quetta 94; PLD 1991 Lahore 200; PLD 1963 SC 203; PLD 1958 Karachi 75; 1985 SCMR 1178; 1984 SCMR 1578; PLD 1991 Lahore 200 and PLD 1970 SC 98, ref.
Mr. H. Shakil Ahmad, Advocate for Petitioner.
M/s. Kamran Murtaza & Rauf Ata, Advocates Ch. Mumtaz Yousaf Standing Counsel Mr. Amanullah Tareen, Advocate for Respondents.
Date of hearing : 19.5.2005.
Judgment
Akhtar Zaman Malghani, J.--The following reliefs have been claimed in the instant Constitutional Petition:--
"It is accordingly respectfully prayed that Respondent No. 1 may be called upon the show as to under which lawful authority he is holding the office of the Member of the Balochistan Provincial Assembly and the Respondent Nos. 2 and 3 be directed to place on record the requisite documents of Respondent No. 1 relating to his appointment and resignation etc. It is further prayed that a writ of quo-warranto or any other appropriate writ may be issued declaring election of the Respondent No. 1 as without lawful authority and the Election Commission may also be directed to de-notify him.
Declaring that the order No. A-132/10589-94/EB dated 13.11.2003 issued by Direction Education (Schools) Balochistan, Quetta, is illegal, void, malafide and of no legal effect.
Any other order as may be deemed fit and appropriate in the circumstances of the case may also be awarded in the interest of justice."
Briefly stated, facts of the case are that the Respondent No. 1 contested the election for the constituency PB-11 Killa Abdullah-I for Balochistan Provincial Assembly in general election held on 12th October, 2002. He was declared as the notified returned candidate. It is the case of the petitioner that at the time of filing of nomination papers the Respondent No. 1 has not given correct information. In fact he was employed as JV Teacher, Government Primary School, Mudrissa Taleem-ul-Quran, Chaman and tendered his resignation on 1.12.2001 to the Executive District Officer (Education) Killa Abdullah. According to the petitioner the Respondent No. 1 disqualified from being elected or being member of Provincial Assembly under Section 8-D(2)(k) of the Conduct of General Election Order, 2002 read with Section 99 (1A)(K) of the Representation of the People Act, 1976 and period of two years was not elapsed since he ceased to be in such service.
After hearing preliminary arguments we decided to issue pre-admission notice to respondents, in response whereof Mr. Nasrullah Khan, Executive District Officer, Killa Abdullah appeared in person and submitted that the Respondent No. 1 tendered his resignation from service on 1.12.2001 which was accepted by the competent authority w.e.f. 1.1.2002 on the expiry of one month's notice. He also placed on record photostat copy of the resignation, affidavit of the Respondent No. 1 and order dated 25.1.2002 with regard to acceptance of resignation of the Respondent No. 1 whereupon petition was admitted for regular hearing.
We have heard the learned counsel for the petitioner as well as learned counsel for the Respondent No. 1 and learned Advocate General. The learned counsel for the petitioner raised following contentions:--
(1) After admission of petition for regular hearing Respondent No. 1 failed to submit counter affidavit till 19.11.2003 when after nine months counter affidavit was submitted, along with which an order dated 13.11.2003 issued by Respondent No. 5 was annexed showing that the resignation of Respondent No. 1 was accepted with retrospective effect w.e.f 1st December, 1999 which clearly shows that the said order was procured by Respondent No. 1 during pendency of the petition by exerting influence on Respondent No. 5 being minister in the Provincial Government whereas service record produced by Respondent No. 2 shows that the resignation was accepted w.e.f. 1.1.2002. Up to that date there was no dispute and the Respondent No. 1 never objected on such entries incorporated in his service book. He further contended that authenticity is attached to official record unless proved otherwise.
(2) Even the order produced by Respondent No. 1 shows that resignation was accepted on 13.11.2003 with retrospective effect which could not have been competently and legally accepted retrospectively in view of the judgments of Hon'ble Supreme Court of Pakistan and it would be deemed that the Respondent No. 1 was in government service till 13.11.2003, as such; disqualified to become member or being member of Provincial Assembly.
In support of his contentions the learned counsel referred to the judgments reported in PLD 1974 Supreme Court 284, PLD 1987 Supreme Court 32 and unreported judgment passed in CA 1374, 1375 and 1672 of 2003 dated 31.3.2005.
(1) The petitioner was not an aggrieved person within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan to maintain the instant petition as he failed to annex the voter list with the petition to show that he was voter of the Constituency.
(2) The petition was not maintainable under Article 225 of the Constitution of the Islamic Republic of Pakistan.
(3) Second portion of relief clause praying to declare the order passed by Respondent No. 5 as illegal, void and without any legal effect cannot be granted on the petition of any person who is not an aggrieved person.
(4) The Respondent No. 5 was competent to accept the resignation with retrospective effect.
(5) In view of notification dated 17.11.2001 Executive District Officer (Education) was not competent to accept the resignation.
(6) Disputed question of facts are involved in the petition which could not be determined in exercise of Constitutional jurisdiction.
(7) The petition may not be found competent as alternate remedy was available under Section 8-E of the Conduct of General Election Order, 2002 and Article 63(2) of the Constitution of the Islamic Republic of Pakistan.
In support of his contentions the learned counsel placed reliance on the judgments reported in PLD 1988 Supreme Court 416, PLD 2003 Quetta 94 and PLD 1991 Lahore 200.
We have carefully considered the contentions put forth by the parties' learned counsel in light of the relevant provisions of law.
As regards maintainability of the petition in view of bar contained in Article 225 of the Constitution of Pakistan, which provides that no election to a house or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament), it may be observed that question of disqualification could be raised, firstly; at the stage when the candidate is being elected and secondly having become a member. First stage was over when nomination papers, without any objection from any of the candidates or elector, were accepted by the Returning Officer. Question of second stage could be considered by the Election Tribunal on the appeal filed by a candidate against the successful candidate or by the Election Commission under Article 63 (2) read with 113 of the Constitution where question of disqualification from being a member was referred to him by the speaker of the Assembly. Thus, no remedy is available to an elector or voter to question the membership of a successful candidate, once election is over, even though the disqualification carried by the member has come to his knowledge after the election. In the judgment reported in PLD 1970 Supreme Court 98 (Farzand Ali vs. Province of Pakistan) the question with regard to maintainability of writ of quo warranto was considered by the Hon'ble Apex Court in the light of Article 171 of the Constitution of 1962, somewhat similar to Article 225 of the Constitution of the Islamic Republic of Pakistan, 1973 and their Lord Ships held that there is no reason why relief by way of quo-warranto should not be available in a case where the remedy by way of an election petition is no longer possible or is not the appropriate remedy or the disqualification is a continuing one, which de-bars a person not only from being elected to an office but also from holding that office. Relevant observations are reproduced herein below:--
"Learned counsel for the appellants have also adopted this line of reasoning and contended that clause (2) of Article 104 of the Constitution of 1962 necessarily refers only to a post-election disqualification.
This Clause is in the following terms:--
"If any question arises whether a member of an Assembly has, after his election, become disqualified from being a member of the Assembly, the Speaker of the Assembly shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, the member shall cease to be a member."
It will be clear from the language of the clause itself that it refers to the case of a member "becoming" disqualified "after his election" and not to the case of a pre-election disqualification. The question however, is whether, even so, a pre-election disqualification can be questioned under Article 98. It has been strenuously contended on behalf of the respondents that once the name of the person has been registered on the roll of electors, his nomination paper accepted and he has been allowed to contest the election successfully, his election cannot be challenged in any other manner save under the specific law providing for challenging elections, notwithstanding the fact, that no provision has been made in the Constitution or any other law, for prescribing a special procedure to meet such a case.
I regret my inability to accept this contention for more than one reason. Firstly, because this would be allowing a person to continue to remain a member of an Assembly even though Article 103 of the Constitution says that he cannot. Secondly, because, the dispute raised after an election is not, a dispute relating to or arising in connection with an election but a dispute regarding the right of the person concerned from being a Member of an Assembly. An election dispute is a dispute raised by a voter or a defeated candidate in his individual capacity under the Statute. It determines the private rights of two persons to the same office but a proceeding for an information in the nature of quo warranto is invoked in the public interest. The letter seeks to determine the title to the office and not the validity of the election. These are two distinct and independent remedies for in forcing independent rights, and the mere fact that the disqualification has been overlooked or what is worse, illegally condoned by the authorities who were responsible for the properly scrutinizing a person's right to be enrolled as a voter or his right to be validly nominated for election would not prevent a person from challenging in the public interest his right to sit in the house even after his election if that disqualification is still continuing. Indeed a writ of quo warranto or a proceeding in the nature of an information for a quo warranto unless expressly barred by some statute, is available precisely for such a purpose.
In this view of the matter it cannot also decide that there was any adequate alternative remedy available within the meaning of Clause (2) of the Article 98 of the Constitution of 1962 to defeat the right given by sub-clause (b) (ii) of Clause (2) of Article 98 to call upon any person holding or purporting to hold a public office to show under what authority of law he claims to hold that office. To refuse the remedy in such a case would produce the strange result that the Court would be thereby perpetuating an illegality.
In my view, therefore, Article 171 of the Constitution of 1962 did not and could not bar a proceeding under sub-clause (b) (ii) of Clause (2) of Article 98 for challenging the title of the disqualified persons from continuing to hold the office of a Member of the National Assembly which was in every sense of the term a public office."
"But, that was not the only relief which Masudul Hasan could claim. He could have moved for an order in the nature of a writ of quo warranto with equal efficacy. Referring again to the monograph on Crown Proceedings in Volume 11 o Halsbury's Laws of England, the now absolute writ of quo warranto was in its nature an information lying against a person who "claimed or usurped an office, franchise or liberty" and was intended "to enquire by what authority he supported his claim in order that the right to the office may be determined." It was necessary for the issue of the writ that the office should be one by the State, by charter or by statute, and that the duty should be of a public nature. It was necessary also that the respondent should be in possession of the office. Here, the office was that of member of a Town Committee, created by the statute, namely, the Basic Democracies Order 1959, and its duties were of a public nature. Khadim Hussain was in possession of the office. A private relator (i.e. a petitioner) is competent to apply for an information against a member of the corporation on a ground affecting is individual title, to show by what authority he claimed to exercise his individual functions. All that is necessary in a case of a private petitioner was that he should have some interest in the election which he impeaches.
I fully agree with the Chief Justice that the only suitable writ which could be asked for in such a case was a writ in the nature of quo warranto challenging the validity of appointment of the respondent Khadim Hussain. This view also find support from Rex v. Speyer (1). In the above case it was held that a private relator could maintain an application for a writ of quo warranto challenging the validity of appointments of Privy Councillors on public grounds."
Sl. No. 13: Permanent Government servants.--A question has been raised whether the undertaking given by a temporary Government servant at the time of his entering service, that he shall give one month's notice of his intention to resign or in default forfeit to Government a sum not exceeding one month's pay, remains binding on that employee or lapses from the time he is confirmed. It is stated that the undertaking of the kind mentioned above lapses when the persons concerned become permanent, as notice is not provided for in the case of permanent Government servants.
In the judgment reported in PLD 1958 Karachi 75 it was observed that before acceptance the resignation can be withdrawn. Relevant observations are reproduced herein below:--
"The next contention of the learned counsel for the petitioner that if this Court comes to the conclusion that the petitioner was wrongly reverted to the post of Head Constable and his order of reversion is held to be ultra vires, the resignation in question was not accepted by a competent authority and did not come into effect is not without force. It is a well established rule of law that a resignation can be withdrawn or recalled before its acceptance by the competent authority."
Thus, it is clear that the respondent's resignation became effective only when it was accepted on 13th November, 2003, for it was open to the respondent to withdraw his resignation at any time until it was accepted. However, it was submitted by the learned counsel for the respondent that the resignation was accepted with effect from 1st December, 1999, therefore; the respondent would be deemed to have resigned on that date. It is already stated that resignation becomes effective, in absence of any rule or law, only when it is accepted. The fact that the Respondent No. 1 was posted as J.V. teacher cannot be obliterated by the retrospective acceptance of the resignation. In the judgment reported in 1985 SCMR 1178 the Hon'ble Apex Court observed as under:--
"Be that as it may, the law is quite clear that an order of a departmental authority cannot be made to operate retrospectively because no executive authority is vested with such powers unless expressly empowered in this behalf by the rules, which is not the case here. Hence the order of dismissal/removal could take effect only from that date when it was passed. See Province of Punjab v. Khan Khaliq Dad Khan PLD 1953 Lah. 295 and Dr. Muhammad Abdul Latif v. The Province of East Pakistan and others PLD 1964 Dacca 647. Consequently, the petitioner must be deemed to be in service until 19.10.1963 and simply because the order passed on that date stated that it would take effect from 19.7.1981 would not have the effect of making the order to take effect from the said date but it would be deemed to take effect from the date on which it was actually passed, namely, from 19.10.1983."
Likewise in the judgment reported in 1984 SCMR 1578, the Hon'ble Supreme Court of Pakistan held as under:--
"Before us the main contention urged on petitioner's behalf was that since according to his service record the petitioner had been removed from service w.e.f. 29.7.1981 (i.e. from a date prior to the election day) his disqualification therefore stood removed retrospectively and as such his election was valid. This contention is wholly misconceived and overlooks the fact that on the day of election, i.e. on 28.9.1983, no order of his dismissal or removal had yet been passed by the Government. Obviously, therefore, on that date he was in Government service The result is that irrespective of the fact as to whether or not the Government was legally empowered to remove him from service with retrospective effect, he was disqualified from contesting election on the date when it is actually held."
It was open to the Government to accept the resignation even on the date when it was tendered i.e. 3rd November, 1999 or even from a latter date or not to accept it at all. But the acceptance of the resignation with retrospective effect could not remove disqualification as provided in Section 8-D (2) (k) of the Conduct of General Election Order, 2002 read with Section 99 (1A) (k) of the Representation of the People Act, 1976 under which the Respondent No. 1 was. Therefore the Respondent No. 1 was disqualified to be elected as and to be a Member of Provincial Assembly.
In view of above discussion, we; are inclined to hold that the Respondent No. 1 has been unable to show the authority of law under which he claims to have been elected to and continues to be Member of Balochistan Provincial Assembly from the constituency PB-11 Killa Abdullah-I, as such; action of Election Commission (Respondent No. 4) having notified the Respondent No. 1 in the official gazette to have been duly elected as such member is without lawful authority and of no legal effect. As a necessary corollary to this finding a declaration would go to the Respondent No. 4 to undo the wrong and to withdraw notification by which Respondent No. 1 was declared to have been duly elected. As a result thereof constituency PB-11 Killa Abdullah-I would fall vacant. The petition is accordingly allowed with no order as to cost.
(A.A.) Petition accepted
PLJ 2006 Quetta 75 (DB)
Present: Raja Fayyaz Ahmad, C.J. and Akhtar Zaman Malghani, J.
GHULAM HASSAN, Ex-ASSISTANT, BALOCHISTAN BAORD OF INTERMEDIATE & SECONDARY EDUCATION, QUETTA and others--Petitioners
versus
GOVERNMENT OF BALOCHISTAN through SECRETARY, EDUCATION, DEPARTMENT CIVIL SECRETARIAT, QUETTA and others--Respondents
C.P. Nos. 52, 149 & 196 of 2000, decided on 16.4.2003.
Balochistan Civil Servants (Efficiency and Service) Rules, 1992--
----Rr. 4, 5 & 6--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Maintainability--Employees of--Board of Intermediate and Secondary Education, Compulsorily retired from service on charge of misconduct--Petitioners/employees whether governed by statutory rules or by the Principle of Master and Servant--At the time of action against petitioners no statutory rules governing terms and conditions, of service of employees were in field--Earlier Rules of 1983, made applicable were already repealed and new rules framed for Government employees in 1992, were not made expressly applicable by adopting prescribed procedure--Relations between parties was thus, one of Master and Servant--Even otherwise by mere adoption or incorporation of statutory rules, relationship of employees with employer does not become statutory--Constitutional petition was thus, not maintainable in as much as, parties were governed by relationship of Master and Servant. [Pp. 80, 82 & 83] A & B
AIR 1977 SC 2148; 1994 PSC 42; 2000 PLC (C.S) 1068; PLD 1990 Quetta 8; PLD 1974 B.J. 20; Black's Law Dictionary 5th Ed.; PLD 1984 SC 194; 1992 SCMR 1112; 1993 SCMR 346 & 1998 SCMR 68 ref.
Raja M. Afsar and Mr. K.N. Kohli, D.A.G. for Petitioner (in C.P. No. 52/2000).
Mr. Khadim Hussain, Advocate for Respondent No. 2 (in C.P. No. 52/2000).
Mr. Salahuddin Mengal, Advocate General for Respondent officials.
Mr. Muhammad Aslam Chishti, Advocate for Petitioner in C.P. No. 149/2000.
M/s. K.N. Kohli, D.A.G. and Mr. Khadim Hussain, Advocate for Respondents in C.Ps. Nos. 149/2000 and 196/2000.
Mr. S.A.M. Qadri, Advocate for Petitioner in C.P. No. 196/2000.
Date of hearing: 24.3.2003.
Judgment
Akhtar Zaman Malghani, J.--By this common judgment we intend to dispose of Constitutional Petition No. 52/2000 filed by Ghulam Hussain, C.P. No. 149/2000 filed by Abdul Ghafoor and 196 of 2000 filed by Ghulam Mustafa as in all the petitions identical question of fact and law is involved.
(i) Professor Muhammad Usman (Chairman).
(ii) Raja Nisar Ahmed (Member).
(iii) Jorak Lal (Member).
During enquiry the Committee found that the marks of Rabia Naeem and Zain-ud-Din were increased by tampering the record and it also came to the knowledge of the Committee that in identical manner marks of Abdul Aziz son of Shah Muhammad stated to be nephew of petitioner Abdul Ghafoor, were tampered and was awarded 707 marks in the result card. After thorough enquiry the Committee reached to the conclusion that the three employees i.e. the petitioners in all the C.Ps. were the persons responsible for these forgeries and issuance of fictitious result cards and certificates to the candidates. Besides, 12 other employees of Board were also found guilty of negligence. After receipt of enquiry the Respondent No. 2 issue Charge sheet to the petitioners and after giving opportunity of personal hearing to all the petitioners, found them guilty of misconduct and compulsory retired them from service vide order dated 30.4.1999. Thereafter petitioners being aggrieved by the order of their compulsory retirement filed appeals as provided under Regulation-9 of the Balochistan Board of Intermediate and Secondary Education Employees Service Regulation, 1991 (here-in-after referred to as Regulation of 1991), which was also rejected by the competent authority, hence these Constitutional petitions.
We have heard the learned counsel of the petitioners as well as Mr. K.N. Kohli Advocate who appeared on behalf of the Board and learned A.G.
It is mainly contended by Mr. Muhammad Aslam Chishti Advocate that the Board was constituted under Ordinance X of 1977 and by virtue of Section 21 Board was empowered to make its regulations subject to approval of Provincial Government. In exercise of above-mentioned powers the Board framed service regulations for Board employees with the approval of Provincial Government, called Board of Intermediate and Secondary Education Employees Service Regulations, 1991. According to regulation 11 of the said regulations, the Balochistan Civil Servant (Efficiency and Disciplinary) Rules, 1983 (hereinafter referred to as Rule of 1983) were made applicable Mutatis Mutandis to the employees of the Board, therefore, any enquiry made behind the back of petitioners by the Fact Finding Enquiry Committee was of no legal effect and penalty imposed upon the petitioners on the basis of said enquiry report is illegal and without lawful authority as Board was under obligation to have followed the procedure provided in Rules of 1983. According to learned counsel there is lot of difference between the Fact Finding Committee and regular enquiry committee and no decision effecting the terms and conditions of the service of employees can be made without holding a regular enquiry under the relevant provisions of Rules, 1983 which were made applicable to the employees of Board. The learned counsel in this respect relied upon the case law reported in AIR 1977 S.C 2148. Regarding maintainability of petition in view of principle of Master and Servant the learned counsel contended that the said principle is not applicable in the present case because the employees of the Board were governed by the statutory regulations made by the Board with the approval of Government under the powers conferred upon the Board by Section 21 of the Ordinance X of 1997 and as Rules of 1983 were made applicable to the employees with all amendments made or occur from time to time, therefore, as the employees were subject to statutory rules, as such; principle of Master and Servant was not applicable to the facts of present petitions. In this regard the learned counsel relied upon un-reported judgment of this Court passed in C.P. No. 495/98 in case Dr. Haji Muhammad Soomro vs. Balochistan Residential College. The learned counsel for the petitioners in C.P. No. 52/2000 and 196/2000 supplementing the arguments of the learned counsel Mr. Muhammad Aslam Chishti, Advocate further argued that the petitioners were condemned un-heard before imposing a major penalty. It is further stated that by adopting procedure contained in Efficiency and Disciplinary Rules, 1992 (here-in-after referred to Rules of 1992), the Board is estopped to challenge the validity of Rules of 1992 on the ground that the same were not made applicable to the employees of the Board after repeal of Rules of 1983 as incorporated in regulation-11 of Regulations 1991. According to learned counsel the Rules of 1983 were made applicable to the employee of the Board and according to regulations 11 amendments brought from time to time in the said Rules were also applicable, therefore, after repeal of the Rules of 1983, the rules framed in 1992 were also applicable to the employees of the Board as amendment includes repeal and re-enactment etc.
On the other hand, Mr. K.N. Kohli learned counsel for the Respondent No. 2 at the very outset objected to the maintainability of the petitions on the ground that principle of Master and Servant was applicable in the present petitions because there were no statutory rules governing the terms and conditions of the employee of Board but Rules of 1983 applicable to the Government Servants were adopted by virtue of Regulation-11 of the Regulations, 1991. It is further contended by the learned counsel that even otherwise Rules of 1983 were repealed by the Rules of 1992 and were no more in field and the rules framed in 1992 were not made applicable to the employees of the Board by any regulation with the approval of Government, therefore, no statutory rules were in field at the time of enquiry and passing of impugned orders, as such, the relationship between the parties was one of Master and Servant and the impugned orders cannot be questioned in Constitutional jurisdiction. At the most the petitioners can claim damages.
On merits the learned counsel contended that during the enquiry before the Special Committee, petitioners were given opportunity of hearing as well as they were also personally heard by the Respondent No. 2 after issuance of Charge sheet and before passing of the impugned orders, as such; the petitioners could not compliant to have been retired from service without hearing. The learned counsel further urged that the Board was competent in adopting summary procedure in the matter instead of holding a regular enquiry. The learned counsel relied upon the case law reported in PSC 1994 page 42, 2000 PLC (Civil Service) 1068 and PLD 1990 Quetta page-8.
Learned A.G. adopted the arguments of the learned counsel for Respondent No. 2.
We have anxiously considered the respective contentions put forth buy the learned counsel for the parties in the light of relevant law and regulations and documents relied by the parties.
It would be expedient to firstly determine the question as to whether the petitioners were governed by statutory rules or otherwise at the time of enquiry and passing of impugned orders.
The Board was set up under Balochistan Ordinance-X of 1997. According to Section 3 of the said Ordinance Board is a body corporate and by virtue of Section 11 is empowered to appoint such officers and staff, as it may consider necessary. Similarly under Section 12 of the Ordinance Government of Balochistan is controlling authority of the Board and under Section 20 Board has been empowered to make regulations subject to the approval of the Government of Balochistan. In the year 1991, the Board under the power conferred upon it by virtue of Section 20 framed with the approval of Government Regulations called Board of Intermediate and Secondary Education Employees Service Regulations, 1991. Under Regulation-11 Service laws applicable to Government Servant were made applicable to the employees of the Board. For the sake of convenience the said Regulation is reproduced herein below:
"11. Subject to the provisions of the Ordinance and Regulations of the Board, the following rules as amended from time to time shall apply mutatis mutandis to the employee of the Board:
(i) The Balochistan Civil Servant (Efficiency and Discipline) Rules, 1983.
(iii) The Balochistan Government Servants (Conduct) Rules, 1979.
(v) Balochistan Civil Servants (Appeal) Rules, 1983.
(a) Any reference to a Government Servant Civil Servants shall be construed to be a reference to the employee of the Board.
(b) Any reference to the Head of Department shall be construed to be a reference to the Chairman of the Board.
(c) Any reference to Secretary of the Government shall be construed to be a reference to the Board.
(d) A reference to the Government shall be construed to be a reference to the Controlling Authority.
(e) The Controlling Authority, the Board and the Chairman may by general or special order delegate to any officer or official of the Board, any of these powers under these rules, where necessary to such conditions as may be specified."
Here we may mention that according to above said regulation Balochistan Civil Servant (Efficiency and Discipline) Rules, 1983 were made applicable to the employees of the Board mutatis mutandis as amended from time to time but the said rules were repealed under Rule 16 of the Rules of 1992 thus at the time of action taken against the petitioners the rules incorporated in Regulation 1991 were no more in field. The question arises whether the new Rules framed in 1992 by the Government for Government servants would be applicable to the employees of the Board in place of Rules of 1983 incorporated in the Service Regulations, 1991. It is important to note that after repeal of Rules of 1983 the new rules made in 1992 were not adopted or incorporated in the Regulations, 1991 by the Board nor any approval of the Government was obtained in this behalf as provided by Section 20 of the Ordinance X of 1977. We are conscious of the fact that under Section 8 of the General Clauses Act when any Act or Regulation is repealed and re-enacted the reference of any provision of the former enactment in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as reference to the provision so re-enacted but we may observe here that the Rules of 1992 were neither enacted/promulgated by the Provincial or National Assembly nor it can be termed as any Regulation made by President or the Governor under the powers conferred upon them by virtue of the Constitution of the Islamic Republic of Pakistan, as such; Section 8 is not applicable to the rules framed nor it can be construed that the Rules of 1992 have become applicable to the employees of the Board in place of Rules of 1983 by reference. In reaching to this conclusion we are fortified by the observation made in the case reported in PLD 1974 Baghdad-ul-Jadid page 20. The relevant observations are reproduced here under:
"For this purpose, reliance was placed upon Section 8 of the General Clauses Act, 1897 and its corresponding Section 7 in the West Pakistan General Clauses Act, 1956. Section 8, sub-section (1) of the General Clauses Act is reproduced below:
"Where this Act, or any Central Act or regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted."
This section cannot apply as it is applicable when a Central Act or Regulation is repealed and re-enacted. Similarly Section 7 of the West Pakistan General Clauses Act which lays down the same principle regarding West Pakistan Acts is also applicable only to cases where a Provincial Act is repealed and re-enacted. The term "Central Act" according to Section 3(8aa) of the General Clauses Act, means an Act of Central Legislature while the term "Regulation" has been defined in Section 3(46) of the same Act as meaning "a regulation made by the Central Government under the Government of India Act, 1870, or the Government of India Act, 1915, or the Government of India Act, or under Section 95 or Section 96 of the Government of India Act, 1935, or by the Governor under Article 104 of the Constitution of 1956 or by the President or by the Governor under Article 223 of the Constitution of 1962. All these enactments were provisions for legislation in particular areas in which the acts of Parliament or Provincial Assembly do not apply.
In the present case the repeal and re-enactment is not of any Central or Provincial Act or regulation. This is a case of repeal of rules by newly framed set of rules. Section 8 of the General Clauses Act or Section 7 of the West Pakistan General Clauses Act cannot, therefore, apply to Rule 14.18 of the Civil Services Rules.
The next question is whether there is any principle of law which may justify the substitution canvassed by the learned counsel for the respondent. The principle of law in regard to repeal as summed up in Maxwell's Interpretation of Statutes (12th Edition) is as follows:
"The common law rule was that if an Act was expired or was repealed it was regarded in the absence of provisions to the contrary as having never existed, except as to matters and transaction past and closed."
"This principle of law underwent a change by the introduction of the Interpretation Act, 1889 particularly by its Section 38. Section 38(1) provides that where the Interpretation Act or any Act passed after the commencement of this Act repeals and re-enacts, with or without modification, any provision of a former Act, references in any other Act to the provisions so repealed shall unless the contrary intention appears, be construed as references to the provisions so re-enacted. This provision has been incorporated in Section 8 of the General Clauses Act of 1897 and Section 7 of the West Pakistan General Clauses Act, 1956. Sub-section (2) of Section 38 of the Interpretation Act provides the effects of repeal as given in Section 6 of the General Clauses Act, 1897. It is, therefore, clear that if the provisions of Sections 6 and 8 are not applicable in terms to a particular repeal the principles that the repealed provisions will be regarded as having never existed except as to matters and transactions past and closed, will apply."
The un-reported judgment of this Court relied by the learned counsel for the petitioners is not applicable to the facts and circumstances of the present case as in that case there were statutory regulations known as the "Model Residential Public School Regulation 1988 were applicable to the employees of the Balochistan Residential College Loralai set up under the Ordinance and the Hon'ble Judges keeping in view the applications of the statutory rules came to the conclusion that the principle of Master and Servant was not applicable to the employees of the said College. The relevant observations made in the above un-reported judgment are reproduced as under:
"Learned Counsel for petitioner frankly conceded that as under the Ordinance of 1983 competent authority have framed service conduct regulations known as "The Model Residential Public School Regulation, 1988, therefore principles of master and servant shall not be applicable on the instant case, as such; in view of admission of the petitioner's counsel we are inclined to accept that as there are statutory service and conduct regulations to govern the service affairs of the employees of Balochistan Residential College, therefore, principal enunciated by Hon'ble Supreme Court in the judgment of Principle Cadet College Kohat and another vs. Muhammad Shab Qureshi, would not be applicable.
Facts of the present case are different from the facts of above-mentioned judgment as in the present case at the time of action against the petitioners no statutory rules governing terms and conditions of the service of employees were in field. The Rules of 1983 made applicable by virtue of Regulation 11 were already repealed and the new rules framed for Government employees in the year 1992 were not made expressly applicable by adopting procedure prescribed in Section 20 of the Ordinance X of 1977. The Board while taking action has adopted procedure laid down in the Rules of 1992 for its convenience but it does not means that the same have binding effect as that of statutory rules made under the provisions of any statute. We are also not inclined to agree with the contention of learned counsel that the amendment includes repeal and re-enactment etc., as such; the rules framed in the year 1992 will be presumed to have been made applicable in place of repealed Rules of 1983.
In Black's Law Dictionary the word "Amendment" has been defined as under:
"AMENDMENT. To change or modify for the better. To alter by modification, deletion, or addition.
Similarly the word "repeal" has been defined as follows:
"REPEAL. The abrogation or annulling of a previously existing law by the enactment of a subsequent statute which declares that the former law shall be revoked and abrogated (which is called "express" repeal), or which contains provisions so contrary to or irreconcilable with those of the earlier law that only one of the two statutes can stand in force (called "implied" repeal). To revoke, to rescind or abrogate by authority. Colconda Lead Mines v. Neill, 82 Idaho 96, 350 p. 2d 221, 223.
While distinguishing amendment from repeal it has been noted as under in Black's Law Dictionary 5th Edition:
"Amendment distinguished. "Repeal" of a law means its complete abrogation by the enactment of a subsequent statute, whereas the "amendment" of a statute means an alteration in the law already existing, leaving some part of the original still standing."
Thus from the above definition it is crystal clear that the term amendment does not include "repeal" and "re-enactment", therefore, it cannot be presumed that after reframing of rules in the year 1992, the same
will automatically be applicable in place of Rules of 1983 by virtue of Regulation 11 of the Regulation 1991. From the above discussion, we are of the considered view that at the time of action of passing of impugned order by Respondent No. 2 no statutory rules governing the terms and conditions of the employees of Board were in existence, as such; the relation between the parties was one of Master and Servant. Moreover; even otherwise by mere adoption or incorporation of statutory rules the relationship of the employees with employer does not became statutory. In this behalf it would be advantageous to reproduce the relevant observation made in judgment reported in 1984 PSC 42:
"Punjab Civil Servants Act was made applicable to employees of WASA--There being no statutory control over the terms and conditions on which an employee could be engaged--Employee on termination of service sought the protection of S. 10 of Punjab Civil Servants Act--Held: By mere application incorporation of Civil Servants Act or Statutory Rules the relationship of master and Servant employee, does not transfer into employees statutory relationship and, could not claim any legal character as such; Civil Court had no jurisdiction to intervene by a declaratory relief.
Similarly in a case reported in 2000 PLC (CS) page 1068 wherein Punjab Civil Servant (E&D) Rules, 1975 were made applicable to the employees of Board of Intermediate and Secondary Education Punjab, it was held that by adopting Punjab Civil Servant (E&D) Rules by the Board, the relationship of the employees with the Board will not become statutory.
After coming to the conclusion that the relationship between the parties was that of Master and servant we deem it not necessary to go into the merit of the case because the petitions are not maintainable keeping in view the principles and dictum laid down by the Hon'ble Supreme Court in the following judgments:
(i) PLD 1984 SC 194.
(ii) 1992 SCMR 1112.
(iii) 1993 SCMR 346.
(iv) 1998 SCMR 68.
For the foregoing reasons the petitions being not maintainable, are dismissed. The parties are left to bear their own costs.
(Aziz Ahmad Tarar) Petition dismissed.
PLJ 2006 Quetta 84 (DB)
Present: Amanullah Khan Yasinzai, C.J. and Mehta Kailash Nath Kohli, J.
M/S ABDUL QAYYUM KAKAR through its PROPRIETOR, etc.--Petitioners
versus
SECRETARY GOVERNMENT OF PAKISTAN MINISTRY OF COMMERCE CIVIL SECRETARIAT, CONSTITUTION AVENUE, ISLAMABAD and others--Respondents
C.P. Nos. 301, 727 & 577 of 2005, decided on 12.12.2005.
Constitution of Pakistan (1973)--
----Art. 199--Export Policy Order 2004--Export of DAP and fertilizer to Afghanistan under Export Policy Order 2004--Permission was granted to petitioner for exporting to Afghanistan through authorized land route--Subsequently ban was imposed whereunder petitioners where estopped from export of D.A.P. and fertilizer--Legality--Initially no ban was imposed by Government on export of D.A.P., however, urea was exportable subject to permission by government, holding valid export licence--Government vide Notification dated 22nd December, 2003, has imposed ban on export of D.A.P. also--Such ban as duly notified in official Gazette, thus, policy decision has taken place and clear restriction has ben imposed on export of DAP to Afghanistan--None of petitioner have challenged vires of notification in-question, whereby ban has been imposed on urea--Government has got ample powers to make appropriate decision for export of goods in accordance with the local, domestic and national needs of the country and, can change that policy according to local requirements--Petitioners cannot claim legal right under licence as per judgment of Supreme Court (1978 SCMR 327)--No malafide in framing of policy have been proved on record, no vires of notification in question have been challenged--Notificaiton in-question, would apply from the date when the same was published even to holders of permits--Petitioners were thus, not found entitled to relief claimed by them.
[Pp. 89 & 90] A, B & C
1978 SCMR 327, ref.
Malik Inayatullah Khan Kasi, Advocate for Petitioner (in C.P. No. 301/05).
Ch. Mumtaz Yousaf, Standing Counsel for Respondents (in C.P. No. 301/05).
Mr. Baz Muhammad Kakar, Advocate for Petitioner (in C.P. No. 727/05)
Ch. Mumtaz Yousaf, Standing Council for Respondents (in C.P. No. 727/05).
Syed Ayaz Zahoor, Advocate for Petitioner (in C.P. No. 577/05).
Ch. Mumtaz Yousaf, Standing Counsel for Respondents (in C.P. No. 577/05).
Date of hearing : 12.12.2005.
Order
Mehta Kailash Nath Kohli, J.--Common question of law are involved in these Constitutional petitions Bearing Numbers 301, 577 and 727 of 2005 and are decided accordingly.
"A. This Hon'ble Court may kindly be pleased to declare that the action of Respondent No. 2 the board of revenue imposing the ban on export of D.A.P. Fertilizer subsequent to the permission granted to the petitioner by Ministry of Commerce resultantly stopping of the export is without lawful authority and jurisdiction as well as in excess and misexercise of authority vested in Respondent No. 2. Board of Revenue and Respondent No. 3 Customs Assistant Collector (Export) Excise Land Customs Quetta;
B. Declaring further that Letter No. C. 5-20(03) Export PT111 2004-05/1172 dated 12-1-2005 and letter No. 5(25) EP/02 dated 22.12.2004 issued by Respondent No. 3 and Respondent No. 2 is not applicable in the petitioner's case and the rights granted to the petitioners cannot be taken away on the basis of issuance of such letter;
C. Directing the respondents to allow the petitioner the export of D.A.P. fertilizer and Beef (meat) to Afghanistan in view of the N.O.C. granted by the govt. Pakistan Ministry of Commerce Islamabad;
D. Any other relief which this Hon'ble Court deems fit and proper is also solicited."
In Constitutional Petition No. 577 of 2005, it has been stated that the petitioners-Traders was authorized to purchase 50,000 matric ton of Urea and 25,000 matric ton of D.A.P vide letter dated 5th October, 2003 issued by Ministry of Agriculture and Live Stock. It was further stated that Government of Pakistan Revenue Division (CBR) addressed a letter on 8th October, 2003 to the Collector of Customs, Quetta, wherein request was made that they should ensure that no further delay occurs in the processing of documents for export of the consignment. Record shows that petitioners were allowed to export surplus urea to Government of Afghanistan as per aforementioned letter dated 5th October, 2003. Record further shows that Government of Pakistan vide letter dated 8th October, 2003 through Export Promotion Bureau issued four permits i.e. (i) First permit was issued for 50,000 matric tons of urea, which was to expire on 3rd November, 2004, the validity of said permit was extended upto 9th November, 2004; (ii) second licence was issued on 24th December, 2003 relating to quantity of 20,000 matric ton, which was to expire on 3rd June 2004; (iii) third permit was issued on 12th January, 2004 for the quantity of 5,500 matric ton and was to expir on 15th May, 2004, it was extended by Export Promotion Bureau up till 9th November, 2004, and; (iv) fourth permit was issued on 12th January, 2004, wherein; 5, 000 matric ton of Urea was to be exported, the said permit was extended by Ministry of Commerce till 9th November, 2004. It is further stated that the above mentioned extensions were made at the request of Ministry of Commerce as special cases. It was also stated that the Export Promotion Bureau was directed to extend the period of expiry by four months and some letters have been placed on record. It was stated that there was obstruction in the supply of urea by the Fertilizer Company, but on account of extensions, made in the period, the said obstruction was also removed. It was the case of petitioners-Traders that petitioners had received 81,57,470/- for exporting urea which was not sent to Afghanistan on account of non-supply by Fertilizer Companies; the last consignment has statedly been sent on 9th August, 2004 loaded in four trucks containing in total 2,200 bags, which were statedly stopped by the Customs Dry Port, Chaman on the ground that the Government of Pakistan has imposed ban on export of Urea fertilizers. It was also averred that when petitioners had come to know the said fact, they approached the Government of Pakistan Ministry of Commerce, as the said urea was stopped and; consequently, Constitutional Petition No. 387 of 2004 was filed in this Court. The same was allowed by means of order dated 1st September, 2004 and the petitioners, in consequence of orders, made by this Court exported the urea to Afghanistan. It was also claimed that during the period of time provided, however, once again, the Frontier Corps authorities did not allow the petitioners, consequently civil miscellaneous application No. 1934 of 2004 was filed before this Court, which was allowed, despite orders made by this Court, the said consignment was delayed on one pretext or the other and; ultimately, civil miscellaneous application, was filed before this Court and time of forty eight days was allowed vide order dated 3rd January, 2005. It was also claimed that petitioners has purchased the urea from open market and the period has already been expired. It was also claimed that the Government has put the ban and are not renewing the licence, although; 16,715.5. matric ton of urea are yet to be exported and they had already received the costs of same in dollars. Prayer has been made in the following terms:--
"It is, therefore, humbly prayed that the petition may kindly be accepted in the following terms:--
A. Declaring that the act of the official respondents in not renewing/extending the period of licenses of petitioner is totally illegal, unjust, in excess of authority vested in them.
B. Also, declaring that non-export of entire quantity of urea, was on account of the conduct of official respondents, for which the petitioner cannot be penalized.
C. Also declaring that the ban imposed through Notification dated 11.1.2005, by respondents, cannot be applied in the case of petitioner, as already he had exported 1/3rd DAP of the contract quantity.
D. Further declaring that the act of the official respondents in stopping the consignment of petitioner for exporting the remaining quantity of DAP i.e. 16715.5 Matric tones is totally illegal, improper, without lawful authority and jurisdiction vested in them.
E. On having declared so, the respondents be directed to renew/extend the period of the licenses of petitioner and to allow the petitioner to export the remaining quantity of urea to the Foreign Buyer in Afghanistan.
F. Also directing the respondents to allow the petitioner to export complete quantity of DAP Fertilizer to the Foreign Buyer.
G. Any other relief deemed fit and proper in the circumstances of the case may also be awarded, alongwith the cost of the petition, in the interest of justice."
Facts in Constitutional Petition No. 727 of 2005, are that petitioners-Traders are dealing in business of export. On 1st August, 2004, petitioners entered into agreement with one Afghani firm i.e. Messrs Razmir Limited for supply of 20,000 matric tons of locally manufactured Fertilizers to be supplied within a period of two years; a written request was made for the grant of permission to supply 20,000 matric tons of DAP Fertilizers, which permission was granted vide order dated 11th August, 2004. In fact, Government of Pakistan had imposed ban and there is restriction on the export of DAP, as per export policy. It is stated that after having entered into agreement, they had started exporting DAP fertilizers through Customs House, Chaman. It was stated that suddenly export of DAP was banned and as a result of which, petitioners have sustained losses. It was stated that petitioners are under legal obligation to supply quantity of DAP Fertilizer, which has been permitted by the Government. It is wroth while to point out that Government has granted permission to export DAP fertilizer, however, it was informed that there is no ban of DAP, as per Export Policy. It was averred that this question has been decided in Constitutional Petition No. 247 of 2005, titled Messrs Muhammad Hashim v. Government of Pakistan through Secretary, Ministry of Commerce Islamabad and others, as such, prayer was made in the following terms:--
"It is therefore, respectfully prayed that the Notification dated 11.1.2005 issued by Respondent No. 1 be declared:--
(a) To be ineffective, in case of the present petitioner;
(b) To further grant permission to the Petitioner to export DAP/Fertilizer way back on 11th August, 2004;
(c) To further declare that the act of the Respondents Nos. 2 & 3 for stopping the consignments of the petitioner for exporting the remaining quantity of 16720 matric tons of the DAP/fertilizer to foreign buyers in Afghanistan on the basis of Notification dated 11.1.2005 is totally illegal, unjust and without any lawful authority as well as in excess and mis-exercising to authority vested in them;
(d) The respondents be directed to allow the petitioner to export complete quantity of DAP/fertilizer mentioned above, as also, any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case, in the interest of justice."
We have heard M/s Syed Ayaz Zahoor and Malik Inayatullah Kasi Advocates appearing in Constitutional Petitions Nos. 301 and 577 of 2005, as well as Mr. Baz Muhammad Kakar, Advocate appearing in Constitutional Petition No. 727 of 2003, while Chaudhry Mumtaz Yousaf, learned Standing Counsel appeared on behalf of official respondents.
It has been contended that the above ban imposed by the Government is not applicable to them. It was further stated that the petitioners have been granted permission by the Government and now, they again turned around of the same. It was further contended that the petitioners have already entered into agreements, and; learned counsel had referred to judgments passed by the Hon'ble Superior Courts relating to different cause of actions, accrued to them.
On the other-hand, learned Standing Counsel has urged that in the circumstances of the case, the Government was in need of the fertilizers and DAP for the requirement in country, and thus, ban was imposed to export on the local manufactured DAP and urea, which was not sufficient to cater the national need of the growers. It was also contended that the Government had already imported more than two million tons of urea. It was further canvassed that it is the Policy decision, which cannot be impugned before this Court.
We have heard the arguments advanced by the parties' counsel and perused the record. It is an admitted feature of the case that there was no ban, imposed by the Government on the export of DAP; however, the urea was exportable subject to permission by the Government of Pakistan, holding valid export licence. The Government vide Notification dated 22nd December, 2003, has imposed ban on the export of DAP also. The said letter was duly notified in the Gazette, and thus; a policy decision has taken place and a clear restriction has been imposed on the export of DAP to Afghanistan. The prayer made in all the petitions show that none of the petitioners have challenged the vires of said notification (published on 30th January, 2005), whereby; the ban has imposed on the export of urea. A Division Bench of this Court, in the case of Amanullah Khan and Brothers vs. Secretary Ministry of Commerce and four others (C.P. No.210 of 2005), had come to the conclusion while dealing with the ban notwithstanding the fact that the export of urea and DAP was permitted. Their lordships came to the conclusion in the following terms:--
"In view of above discussion, under Section 31-A of the Customs Act, 1969 the petitioner is liable to pay regulatory duty on the consignments of wheat flour shipped on or after the date when notification was issued, notwithstanding conclusion of the contract or agreement for export of wheat flour prior to the date of notification. Likewise; he cannot claim any vested right for all the times to come to export fertilizer after ban imposed by the Government nor the powers of government in this regard could be curtailed on the ground that the petitioner entered into agreement for export when there was no ban on export of fertilizer (D.A.P)."
(Underline is ours).
The above judgment of this Court was assailed in C.P.L.A. No. 99-Q of 2004. Their lordships of the Hon'ble Supreme Court were pleased to concur with the judgment of this Court in the following terms:--
"4. Learned Standing Counsel for the Federal Government appeared on Court notice and opposed the petition. He stated that both the cases referred to by learned counsel for the petitioners are distinguishable; that there is a shortage of urea in the country and is not even possible to meet the domestic requirements, on account of which Federal Government has decided to import the urea.
(underline is ours).
Following the above dictum, it is quite clear that the Government has got ample powers to make appropriate decision for export of goods in accordance with the local, domestic and national need of the country, and; can change the policy according to local requirements. The petitioners cannot claim the legal right under the licence, as has been held by the Hon'ble Supreme Court in the case of Zamir Ahmed Khan v. Government of Pakistan and another (1978 SCMR 327). Relevant observations of their lordships are reproduced herein-below :--
"... ... ... ...It was further held that in such cases the emphasis is on policy, and any discretion vesting in the authorities is directed towards attaining the policy's objectives. Under Section 3(i) of the Exports Control Act, 1950, the Central Government enjoyed power of the widest amplitude to prohibit, restrict or otherwise control the import of goods. The decisions taken fall within the realm of policy making, and in all such cases orders made must conform to the policy decisions of the Government. Accordingly, the amendment made on 9-8-1972 in Item No. 49 signified a change in policy and the petitioner was informed that he was being refused the licence because of the change in policy and not because of any other reason. On these facts it was not possible to subscribe to the proposition that a writ of mandamus would lie against the licensing authority so as to have the effect of defeating the policy competently made by the Federal Government."
(underline is ours)
No malafide in framing of policy have been proved on record, no vires of said notification have been challenged. The notification shall apply from the date when it was published, even to holders of permits.
Above are the reasons of our short order made in Court on even date i.e. 12th December, 2005, for dismissal of the petitioner.
(Aziz Ahmad Tarar) Petition dismissed.
PLJ 2006 Quetta 91
Present: Aman ullah Khan Yasinzai, C. J. and Mehta Kailash Nath Kohli, J.
SARDAR HAJI MUHAMMAD YOUSAF and another--Petitioners
versus
DISTRICT CO-ORDINATION OFFICER, & another--Respondents
Constitutional Petition No. 797-2005, decided on 28.12.2005.
(i) Constitution of Pakistan, 1973--
----Arts. 28 & 199--System of Sardari (Abolition) Ordinance, 1976--(Ordinance XXXV of 1976)--S. 3--Petitioner being owner of more than 400 acres of property in the area of Muslim Bagh and being son of a Sardar of the tribe, after the death of his father, to preserve his tribal culture i.e. Sardari System, called government officials as well as his tribesmen, who accepted him as Sardar of tibe--Petitioner approached the District Co-ordination Officer for confirmation of his status--Request was declined--Assailed--Validity--Art. 28 provides that the citizens having a distinct language, culture and scripted rights to preserve, and; subject to laws framed in that behalf--Custom of language, script and culture does not include appointment of `Sardar'--Ordinance, 1976 stood abolished and all those cultural customs to that extent have been declared to be against the provisions of law relating to Sardari System--In view of Section 3 of the Ordinance, 1976, the relief claimed by the petitioners cannot be granted--Petition dismissed. [Pp. 92 & 93] A, B & C
Mr. Manzoor Ahmad Rehmani, Advocate for Petitioners.
Date of hearing : 19.12.2005.
Judgment
Mehta Kailash Nath Kohli, J.--Petitioners claim that they belong to indigenous tribe of Khudaidad Zai, Begzai, and as per tribal system own a specific culture, whereby; a caste/tribe is presided over and represented through tribal Chief i.e. Sardar. It is the claim of petitioners that their tribe was represented by their father namely Abdul Khaliq being Sardar of the tribe since long, and; after his death, according to their tribal culture ( ), Petitioner No. 2 namely Haji Abdul Lateef, being elder son of Sardar Abdul Khaliq, became new Sardar of the tribe, who surrendered his right of Sardari in favour of Petitioner No. 1 i.e. Sardar Haji Muhammad Yousaf. It is the claim of petitioners that Petitioner No. 1 being owner of more than 400 acres of property in the area of Muslim Bag, and; to preserve his tribal culture i.e. Sardari System, called government officials as well as his tribesmen, who accepted the Petitioner No. 1, as Sardar of Khudaidad Zai, Begzai tribe, in this behalf an acknowledgement deed in respect of Sardari was also executed. It is further the case of petitioners that Petitioner No. 1 approached District Co-ordination Officer, Killa Saifullah (Respondent No. 1) for confirmation of his status, but he refused to do so. Petitioners sought following prayer in this petition:--
"It is, therefore, accordingly respectfully prayed that this Honourable Court may kindly be pleased to declare in the following terms:--
(a) That Sardari System is part of culture in the tribal system.
(b) That Petitioner No. 1 is the Sardar i.e. Chief of the tribe Khudai-dadzai, Begzai in Muslim Bagh, District Killa Saifullah.
(c) Any other relief, which this Honourable Court may deem fit and proper."
Mr. Manzoor Ahmed Rahmani, learned counsel appearing for petitioners has contended that the Petitioner No. 1 being son of Sardar' is required to be declared as part of their culture in view of
Article-28 of the Constitution of the Islamic Republic of Pakistan, 1973.
During course of arguments, it was pointed out thatSystem of Sardari' has been abolished vide Ordinance-XXXV of 1976 published on 8th April, 1976 by System of Sardari
(Abolition) Ordinance, 1976. Learned counsel still persisted that the
Petitioner No. 1 be declared as `Sardar'.
We have heard learned counsel for petitioners and perused the record. In order to appreciate the arguments advanced by learned counsel in the light of above Ordinance, it is necessary to reproduce herein-below, Article-28 of the Constitution of the Islamic Republic of Pakistan, 1973:--
"28. Preservation of language, script and culture.--Subject to Article 251 any section of citizens having a distinct language, script or culture shall have the right to preserve and promote the same and subject to law, establish institutions for that purpose."
Above fundamental right clearly provides that the citizens having a distinct language, culture and scripted rights to preserve, and; this all subject to laws framed in this behalf. The custom of language, script and culture does not include appointment of `Sardari (sic) Ordinance, 1976 stood abolished and all those cultural customs to that extent have been declared to be against the provisions of law relating to Sardari System. Section-3 of the Ordinance, 1976 clearly provides in the following terms:--
"3. Abolition of System of Sardari.--Notwithstanding any custom or usage, as from the commencement of this Ordinance, the system of Sardari shall stand abolished and no person shall--
(a) exercise any judicial powers not expressly conferred to him by or under any law for the time being in force; or
(b) maintain any private jail ; or
(c) save as provided in the Code of Criminal Procedure, 1898 (Act V of 1898), or any other law for the time being in force, arrest or keep in custody any person; or
(d) take free labour from any person or compel any person to labour against his will; or
(e) demand or receive, by reason of being or having been a Sardar, any tribute or any other payment, whether in cash or in kind."
In view of above provision of law, the relief claimed by the petitioners cannot be granted. Thus, the present petition being legally not competent is directed to be dismissed in limine.
(M. Ajmal Rana) Petition dismissed
PLJ 2006 Quetta 93
Present: Mehta Kailash Nath Kohli, J.
HAJI HASSAN ALI--Petitioner
versus
HAJI ABDULLAH and another--Respondents
Civil Revision No. 86 of 2006, decided on 19.5.2006.
(i) N.W.F.P. Pre-emption Act, 1987 (X of 1987)--
----S. 13--Civil Procedure Code, (V of 1908)--S. 115--Pre-emption suit filed by petitioner dismissed by both Courts--Assailed--Validity--Trial Court concluded the Talb-i-Ishhad must refer factum of performance of Talb-i-Muwasibat and certain requirements have been laid down for proving the said part of the evidence--The witness had not referred nor the plaintiff referred the talb-i-muwasibat while making talb-i-ishhad--Requirement of talbs as provide by law have not been proved on record nor the number of witnesses required for talb-i-Ishhad have been produced--Present petition was filed against concurrent findings of fact and no misreading, non-reading or irregular exercise of jurisdiction was shown and Courts below had rightly dismissed the suit holding inter alia that valid Talabs were not proved on record--Petition dismissed. [Pp. 97 & 98] B, C & D
(ii) N.W.F.P. Pre-emption Act, 1987 (X of 1987)--
----S. 13--Talb-i-Muwasibat was made in presence of witnesses--Non production of the witnesses--Effect--Plaintiff asserted Talb-i-Muwasibat in presence of witness and now it was the duty of the plaintiff to have produced the witnesses in order to prove Talb-e-Mawasibat--Held: Although the number of witnesses were not required to be produced but when it is alleged the same is to be proved as a fact on denial by the defendant, then the statements of witnesses become necessary. [P. 96] A
2002 SCMR 235, ref.
Mr. Aslam Chishti, Advocate for Petitioner.
Date of hearing : 19.5.2006.
Judgment
This petitioner has been directed against judgment passed by Majlis-e-Shoora, Khuzdar on 30.12.2005 dismissing appeal filed by the petitioner against judgment and decree dated 28.10.2005 passed by Qazi, Khuzdar whereby suit of possession through pre-emption has been directed to be dismissed.
Facts of the case in brief are that a civil suit for possession through Pre-emption No. 8/2005 was filed by the present petitioner in respect of lands situated in Khuzdar details whereof are given in the title of the plaint and need not be mentioned here. It was stated in the plaint that the disputed property is situated in the centre while his lands are contiguous and adjacent. It was further stated that the petitioner is also irrigating his land from water which is having passage from the said lands. In the plaint it was averred that in the year 1989 he had purchased the lands and made Respondent No. 1 as partner in the same and remained in possession while the said lands were purchased from one Ghulam Nabi s/o Atta Muhammad. It was further stated that the disputed lands remained vested with Ghulam Nabi. Claim set up in the plaint was that Ghulam Nabi had sold the said lands to Khuda Bakhsh while now Khuda Bakhsh has sold the lands to Respondent No. 1, who is his partner and the said transaction was carried out without his knowledge. It was also claimed that it was required to be purchased by the defendant jointly as he was his partner. It was also stated that Abdul Majeed s/o Maula Bakhsh about one week ago came to his house and informed that Khuda Bakhsh has sold the land in dispute to defendant on which the present plaintiff had claimed his right of Shufah. He had also stated that he had claimed Shufah in presence of witness was made witness. It was evening time and he could not go to house of the defendant and on the next day i.e. 9.3.2004 early in the morning he had asked Defendant No. 1 in Bazar before Salaam he claims Shufah and whatever amount he has paid he should take and return the property but he has refused the same. Written statement was filed by the Defendant No. 1, who had repudiated the claim of the present petitioner and stated about the details of the property purchased from Defendant No. 2 and Sardar of Sasoli. It was also stated that the properties have been partitioned and there is no question of any partnership. Talabs were also denied in the written statement. Respondent No. 2 also denied the claim of the present petitioner of entitlement on the ground that lands are not contiguous as well as partnership. It was stated by him prior to sale of the property he has informed the plaintiff about sale of disputed land.
On the basis of the pleadings of the parties following issues were framed:--
(i) "Whether suit was within time?
(ii) Whether proper Court fee was paid?
(iii) Whether plaintiffs land was contiguous to preempted land on Eastern and Northern boundaries; and whether water channel irrigating plaintiffs land passed through preempted land entitling plaintiff to right of pre-emption?
(iv) Whether plaintiff had performed Talab entitling him under law and Shariat to claim right of pre-emption? OPP.
(v) Whether boundaries given in the plaint were incorrect?
(vi) Whether joint land between plaintiff and vendee/Respondent No. 1 had been partitioned before sale transaction and further the preempted land was contiguous to lands of Vendee/Respondent No. 1 but at a distance from land of plaintiff/preemptor?.......OPD.
(vii) Whether vendor/Defendant No. 2 had offered sale of preempted land to plaintiff which was declined?....
OPD Defendant No. 2.
(viii) Whether suit land was valued at Rs. 70,000/-?.....
(O.P.D.)
(ix) Relief?"
To support the case, the plaintiff/petitioner produced PW.1 Wahid Bakhsh s/o Maula Bakhsh, PW.2 Haji Muhammad Yaqub, PW.3 Muhammad s/o Shafi Muhammad, PW.4 Muhammad Yaqub s/o Qadir Bakhsh, PW. 5 Ghaus Bakhsh s/o Muhammad Ali, while the statement of PW.6 Muhammad Karim s/o Khan Muhammad, statement of plaintiff Haji Hassan Ali was recorded. The defendants produced Abdul Karim, DW.2 Yar Muhammad and statement of defendant Haji Abdullah s/o Pir Bakhsh was recorded.
The learned trial Court vide judgment and decree dated 28.10.2005 while holding (i) that the suit is within time and resolving the issue in favour of the plaintiff, (ii) proper Court fees has been affixed, (iii) holding that the property is not situated adjacent to the disputed property and deciding issued against the plaintiff, (iv) the plaintiff having failed to prove the Talb-i-Mawasibat and Talb-i-Ishhad (v) the issue was regard to boundaries resolved in favour of the defendants as there is apparent contradiction in the boundaries provided by the plaintiff and the evidence produced in this behalf. Issued No. 6 was decided against the plaintiff, while Issue No. 7 with regard to sale when plaintiff was informed whether right of Sufa is not available was decided in favour of plaintiff and the value of the property or transaction struck was assessed to Rs.70,000/-. As a consequence of findings recorded on Issues Nos. 3, 4, 5, 6 and 8, suit was dismissed.
Against aforementioned judgment and decree an appeal was filed before Majlis-e-Shoora, Khuzdar which also was dismissed by the learned appellate Court. Against concurrent findings of fact the present petition has been filed.
The matter was fixed for Katcha Peshi when the learned counsel for the petitioner was called upon to show any misreading of record of any illegal exercise of jurisdiction materially affecting the judgments of the lower Courts, the learned counsel for the petitioner stated that it is not requirement of law that the Talb-i-Mawasibat is to be proved in Stricto Senso. It was further stated that the statement of PW.6 and the statement of plaintiff is sufficient to establish the factum of Talab-i-Ishhad as such the learned Courts below have erred in conclusion that Talabs have not been proved. It was also contended that there was no need of referring Talb-i-Mawasibat at the time of Talab-i-Ishhad as such the findings are not correct in law.
I have considered the arguments advanced by the learned counsel for the petitioner and perused the record.
It is an admitted feature of the case that the plaintiff while making statement in witness box had categorically stated that two persons named Abdul Majeed and Mir Mirza had come to his house and had informed about the sale of the property from Ghulam Nabi to Khuda Bakhsh and then Khuda Bakhsh to Abdullah, whereupon Abdullah whether executed document or not answered by the plaintiff. It was further stated by the plaintiff that on 9.3.2004 these two persons named above had come to his house while Abdullah, Khuda Bakhsh and Ghulam Nabi had not informed him about sale whereupon the plaintiff had claimed shufah. It was further stated that he went to house of Abdullah who did not meet him and he came to know that he has gone to Khuzdar and met him in Bazar and before Salam he had asked that he has purchased property from Khuda Bakhsh and Sardar Sasoli and also from Ghulam Nabi, the plaintiff offered the cost of the land in front of Muhammad Karim s/o Khan Muhammad which was denied. Therefore, he talked to Sardar Sasoli who assured to bound down Abdullah.
From perusal of the above statement is quite clear that the plaintiff had asserted Talb-i-Mawasibat in presence of witnesses as named Abdul Majeed and Mir Mirza and now it was the duty of the plaintiff to have produced the said two witnesses in order to prove Talb-i-Mawasibat. Although particular number of witnesses are not required to be produced but when it is alleged the same is to be proved as a fact on denial by the defendant, then the statements of witnesses become necessary. Reference to a judgment reported in 2002 SCMR 235 Muhammad Mal Khan vs. Allah Yar Khan is reproduced as under:--
"No inflexible rule can be laid for application of certain rule in a judgment to every and each case as each case proceeds on its own diverse facts. Although it is not necessary to mention the name of the person in the plaint in whose presence Talb-i-Munwathibat was made, but in this case the plaintiff admitted in his cross-examination that he had made Talb in presence of Tayyab Khan but he failed to produce him as his witness. It was also no clarified/explained by the plaintiff in his statement as to why Tayyab Khan could not be produced as it was not stated that he was either won over by the other side or that he had turned hostile towards him for some other reasons or that out of fear of the defendant or for some other consideration the defendant was successful to prevent him to depose in favour of plaintiff. Article 129(g) of Qanun-e-Shahadat reads:--
"That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
Therefore, in absence of any explanation by the plaintiff as to why he withheld Tayyab Khan from examining him as his witness the legal presumption would be that in case he had been produced then his deposition must have been against him".
Now the second question as to whether the plaintiff has been able to successfully prove the Talb-i-Ishhad which is mandatory requirement of law, the learned trial Court had concluded that the Talb-i-Ishhad must refer factum of performance of Talb-i-Mawasibat and the certain requirements have been laid down for proving the said part of the evidence. It is an admitted feature of the case that the said witness had not referred nor the plaintiff referred the Talb-i-Mawasibat while making Talb-i-Ishhad. Even the plaintiff himself had never referred Talb-i-Mawasibat made in presence of two witnesses who also have not been produced. The Honourable Supreme Court of Pakistan in the case of Haji Qadar Gul vs. Moembar Khan and others held mandatory requirement for establishing a suit wherein it is concluded in the following terms, which is reproduced herein below:--
"The requisites of valid "Talb-i-Ishhad' and conditions necessary therefore are........
(1) It must be made in presence of at least two witnesses. [Pachumuddin Nayek versus Abdul Ghaffur and others (AIR 1937 Calcutta 283)].
(2) It should be made with a little delay as possible in the circumstances. [(Muhammad Raza Ali Khan versus Muhammad Israr Hassan Khan AIR 1929 Allahabad 459)].
(3) A reference should be at the time of Talb-i-Ishhad (second demand) to the fact that Talb-i-Muwathibat (first demand) had previously been made. [Rejjub Ali Chopedar versus Chundi Churn Bhadra and others (ILR 17 Calcutta 453)].
(4) Demand of pre-emption may be made to the vendee or to his agent or to the vendor or on the premises sold on different circumstances. [Faqir Shaikh versus Syed Ali Sheikh and others (AIR 1955 Calcutta 349)]."
The above requirements of Talabs as provided by law have not been proved on record nor the number of witnesses required for Talab-i-Ishhad have been produced. The present petition has been filed against concurrent findings of fact and no misreading, non-reading or irregular exercise of jurisdiction has been shown and thus the Courts below had rightly dismissed the suit holding inter alia that valid Talabs were not proved on record. Resultantly petition has no merit is dismissed in limine.
(M. Ajmal Rana) Petition dismissed
PLJ 2006 Quetta 98
Present: Muhammad Nadir Khan, J.
ABDUL QAYYUM AND 20 others--Petitioners
versus
CENTRAL GOVT. through DISTRICT EXECUTIVE OFFICER (REV.) DISTRICT KILLA ABDULLAH AT CHAMAN and anothers--Respondents
Civil Revision No. 153 of 2003, decided on 12.7.2004.
(i) Civil Procedure Code, 1908 (V of 1908)--
----Ss. 47, 79, 80, 104 & 115--Suit for declaration filed by the petitioners/ plaintiffs decreed ex-parte--Application u/s 12(2) CPC was filed by respondent that no notice was issued to the defendant--Application was pending when an execution petition was filed--Dismissed by Civil Court as well as by Appellate Court--Execution cannot be made unless Central Government is impleaded as party--Assailed--Validity--Federal Government has been sued through provincial functionary which was in violation of S. 79 CPC--Federal Government was not properly required by Section 79 CPC--Defendants were proceeded against ex-parte only after 27 days of institution of the suit and it was decreed which speaks of the hasty proceedings carried in violation of the provisions of S. 80 CPC as the defendants were not provided by period of three months for filing of their written statement--Trial Court did not only ignored the improper description of defendant but failed to comply with the legal requirements--Courts below rightly observed that Federal Govt. was not properly sued and the decree in its present form is not executable--Revision disposed of. [P. 102] A, B & C
Mr. Aziz Ullah Kakar, Advocate for Petitioners.
Ch. Mumtaz Yousaf, Advocate, Federal Counsel for Respondents.
Date of hearing : 1.7.2004.
Judgment
The petitioners (hereinafter referred to as plaintiffs) filed the suit for declaration, injunction and correction of revenue record against the respondents (hereinafter referred to as defendants) with following prayer:--
(i) "that the plaintiffs are descendants and legal heirs of late fathers/fore-fathers of plaintiffs, hence stopped in their shows, and sought the title of occupancy tenants (bazgars), in respect of lands defined in Paragraph Nos. 2 and 3 of the plaint, lying in Mohal and Mouza Khushkaba Daman Sarkaari, Cricle Saddar, Tehsil Chamn District Killa Abdullah;
(ii) That the plaintiffs may be declared as owners (Malik-e-Alla) in Column No. 3 of Fard-e-Haqiat, As Misl-e-Haqiat, Mohal and Mouza Khushkaba Daman Sarkari, in Khate No. 1/25, in place of Defendant No. 1, the Central Government;
(iii) That to direct the Defendant No. 2 correct and incorporate the required entries in capacity of owners under the names of plaintiffs, in revenue record i.e. in Misle-e-Haqiat of Mohal and Mouza Khushkaba Daman Sarkari, Tappa Saddar, Tehsil Chaman, District Killa Abdullah;
(iv) That to direct the defendants to not interfere and interrupt in the title of plaintiffs, as owners in occupation of both physically at the post in respect of the whole of land defined and numerated in Paragraphs Nos. 2 and 3 of the plaint and in respect of Revenue record as well permanently;
(v) Any other relief as deemed fit and proper in the circumstances of the case, may also be awarded;"
In response to the notice issued to the defendants one Rehmatullah Patwari appeared before the trial Court, who after obtaining the copy of plaint and annexures did not turn up on the next date of hearing whereupon the defendants were proceeded ex-parte vide order dated 27.4.2002. The plaintiffs in support of their claim filed affidavits of Musa Kalim, Agha Muhammad while the attorney for the plaintiffs Haji Abdul Wahid, Abdul Qayum and Salahuddin filed their join affidavit. The trial Court on the basis of the averments made in the plaint and the affidavits filed in support of the same passed ex-parte decree on 31.5.2002 to the following effect:--
"Therefore, in view of above mentioned facts circumstances, affidavits of witnesses, Fard-e-Haqiat, receipts and notification entitled the plaintiffs to be incorporated as owners in column of owners in revenue record. In this regard and ex-parte decree be prepared and defendants are directed that the names of plaintiffs be entered incorporated as owners in the column of owners in revenue record."
Subsequently the Respondent No. 2 filed application u/S. 12(2) Cr.P.C. contending that before filing of the suit required notice was not issued to the defendants. Further the Federal Government was sued through Defendant No. 2, who cannot represent Federal Government. The application was resisted by the plaintiffs, meanwhile execution application was filed by the plaintiffs, the learned Civil Judge Chaman after hearing of the parties dismissed the execution application with following observation:--
URDU
The plaintiff being aggrieved by the dismissal of their execution application preferred appeal u/S. 104 read with Section 47 CPC. The appeal was also dismissed by means of order dated 23.5.2003. Still being dissatisfied the plaintiffs filed the Revision petition in hand.
Mr. Abdul Aziz Kakar, the learned counsel for the petitioners while being unable to point out any defect in both the impugned orders was also unable to state that how Federal Government was sued through District Executive Officer (Revenue) district Killa Abdullah at Chaman, when the Federal Government is the recorded owner of the property in dispute.
Ch. Mumtaz Yousaf, the learned Federal counsel supporting the impugned orders submitted that plaintiffs not only filed a defective suit by non-joinder of necessary parties but compliance of Section 80 of CPC was also not, made, therefore, in such view of the matter the proceedings so drawn from the initial stage cannot sustain and the suit is liable to be dismissed.
The submissions made by the learned counsel for the parties considered, record of the case perused. It is the admitted feature of the case that the Federal Government is recorded owner of the property. The plaintiffs filed the suit and following were made defendants:--
Central Government, through District Executive Officer (Revenue) District Killa Abdullah, at Chaman.
District Executive Officer (Revenue) District Killa Abdullah at Chaman.
Sections 79 and 80 CPC lays down the procedure in relation to suits by or against the Government. Section 79 CPC states the authority to be named as plaintiff or defendant as the case may be while Section 80 deals with the procedural pre-condition to the filing of the suit against the Government or public servant hence both the sections heaving bearing on the case in hand are reproduced as under:--
4\\ In a suit by or against the 2[Government] the authority to be named as plaintiff or defendant, as the case may be, shall be--
(a) "in the case of a suit by or against the Federal Government, [\ \ \ Pakistan] ;
(b) in the case of suit by or against a Provincial Government the Province]; and
"80. Notice---(1) A suit may be instituted against the Government or against public officer, in respect of any act purporting to be done by such public officer in his official capacity, after the expiration of two months next after notice in writing has been delivered to or left at the office of.--
(a) in the case of a suit against the 2[Federal] Government, a Secretary to that Government;
(b) (i) in the case of a suit against the Provincial Government other than a suit relating to the affairs of a Railway, a Secretary to that Government or the Collector of the District; and
(ii) in the case of a suit against the 2[Federal] Government relating to the affairs of a Railway, the General Manager of the Railway concerned, and in the case of public officer, delivered to him or left at his office stating the cause of action, the name, description of place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
(2) Where any such suit is instituted without delivering or leaving such notice as aforesaid or before the expiration of the said period of two months or where the plaint does not contain a statement that such notice has been so delivered or left, the plaintiff shall not be entitled to any costs if settlement as regards the subject-matter of the suit is reached or the Government or the public officer concedes the plaintiffs claim, within the period of two months from the date of the institution of the suit:
Provided that in a suit instituted without such notice, the Court shall allow not less then three months to the Government to submit its written statement]."
In the present case the Federal Government has been sued through provincial functionary which is in clear violation of the provisions of Section 79 CPC. The procedural pre-condition as provided by Section 80 CPC were also not acted upon, although non-compliance of Section 80 CPC does not result in dismissal of the suit but in such an eventuality the Government is to be provided three months time to submit written statement. As stated above the Federal Government was not properly named as required by Section 79 CPC and the service on Defendant No. 2 was deemed to be service on respondent/Defendant No. 1 also. Further on the date of hearing a Patwari appeared before the trial Court who was neither authorized nor could be said to be representative of Federal Government and the trial Court handed over the copies of the plaint and annexures to him. Thereafter on 27.4.2002 the defendants were proceeded ex parte i.e. only after 27 days of the institution of the suit, and on 31.5.2002 the suit was decreed which speaks of the hasty proceedings carried in violation of the provisions of Section 80 CPC as the defendants were not provided the period of three months for filing of their written statement. The trial Court not only ignored the improper description of defendant but also failed to comply with the legal requirements. Thus, the judgment and decree passed in favour of plaintiffs in such circumstances cannot sustain. Both the Courts below, therefore, have rightly observed that Federal Government was not properly sued and the decree in its present form is not executable. The impugned order being free from any flaw calls for no interference, while judgment and decree dated 31.5.2002 passed in favour of the plaintiffs being in violation of the provisions of law, is set aside. This disposes of the Civil Revision, with no order as to cost.
(M. Ajmal Rana) Revision disposed of.
PLJ 2006 Quetta 103
Present: Ahmad Khan Lashari, J.
HAZRAT ZUBAIR OBAID UR REHMAN FAROOQI & another--Petitioners
versus
CAPT. FAREEDUDDIN & 4 others--Respondents
C.R. No. 265-2005, decided on 23.5.2006.
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 17--Amendment of pleadings--Power to grant amendment, being procedural is to be used for the purpose of dispensation of complete justice--Court could not hesitate in allowing the amendment to cure the formal defect which is bona fide and has been occurred due to mistake of fact or misapprehension instead of dismissing the suit, although the plaintiff had not asked or prayed for it. [P. 107] D
PLD 1985 SC 345.
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 17--Amendment of pleadings--Duty of Court--Held: It is duty of the Court while deciding the case take into consideration which might have come into existence after institution of the suit and on basis of formal defect in suit dismissal should not be allowed to suitably amend pleadings even they did not ask for it. [P. 107] E
(iii) Specific Relief Act, 1877 (I of 1877)--
----S. 42--Civil Procedure Code, (V of 1908)--S. 115 & O. VI, R. 17--Suit for declaration--Dismissed by Courts below--Assailed--Matter referred to the Referee Judge--Validity--Suit was barred by law, thus proceedings with the consequential relief was not maintainable--Suit for declaration if not found to be maintainable the plaintiff would not be entitled to equitable right to grant of decree of permanent injunction--Suit which is incompetent, no because of any formal, technical or curable defect but because of an express or implied embargo imposed upon it under the law, would not be allowed to further number legal proceedings--Contents of plaint that the petitioners filed suit seeking performance of agreement but they filed suit for declaration which was not maintainable in present form, but was curable after removing the defect--Trial Court did not frame issue on the point but decided it against the petitioners--Courts below fell in error by not directly the petitioners for the amendment and illegally dismissed the suit--Referee Judge agreed with the observations made by Mr. Justice Akhtar Zaman Malghani to extent of remand and impugned judgments being not sustainable in eyes of law. [Pp. 106 & 107] B, C, F & G
PLD 1967 Dacca 190, relied and PLD 1976 SC 786 distinguished.
(iv) Specific Relief Act, 1877 (I of 1877)--
----S. 42--Declaratory suit on the basis of agreement to sale--Held: Agreement to sale does not create any title, right or interest in immovable property, such declaratory suit under S. 42 of the Specific Relief Act is not permissible. [P. 106] A
Mr. Iftikhar ul Haq, Advocate for Petitioners.
Mr. Ehsan ul Haq, Advocate for Respondent.
Date of hearing : 8.5.2006.
Judgment
The Division Bench of this Court in response to pre-admission notice, heard the parties counsel and concluded the matter with difference of opinion; his Lordship Mr. Justice Amanullah Khan, Hon'ble Chief Justice has held that the concurrent findings arrived at by the Courts below were based on proper interpretation of law while my learned brother Judge Mr. Justice Akthar Zaman Malghani, did not agree with dismissal of the suit and opined that the trial Court should have proceeded with the matter regarding illegal dispossession of the petitioners being the consequential relief in the suit, thus; his Lordship after setting aside of the impugned judgments, remanded the matter for proceeding to the extent to threat of illegal dispossession by excluding the other relief sought for by the petitioners, hence the matter was referred to me as a Referee Judge.
"It is therefore, respectfully prayed that a decree may kindly be passed in favour of plaintiff against the defendants to the following effect:--
(a) To declare that plaintiffs are lawful owners being successor of vendee last Hazrat Obaid Ur Rehman Farooqi of land in dispute description mentioned in para 2 of plaint and Defendants Nos. 1 and 2 are bound to transfer the mutation entries in their favour after receiving the out standing amount of sale consideration.
(b) By means of mandatory injunction Defendants Nos. 1 & 2 be directed to transfer the mutation entries in favour of plaintiffs by abiding the words of mouth and law.
(c) By means of permanent injunction defendants severely and jointly be directed not to dispossess the plaintiffs and followers of his shrine as cultivators upon land in dispute.
(d) By means of perpetual injunction defendants be directed severely and jointly neither to disturb the permissive peaceful possession of plaintiffs nor to harass any one else on his behalf.
(e) By means of mandatory injunction Defendants Nos. 3 to 5 be directed not to act as an instrument in utter violation of law and to desist from transgress of authority.
(f) Any other relief along with the cost of the suit may also be awarded."
The private respondents while filing their written statement contested the claim and challenged maintainability of the suit on various legal as well as factual grounds. The learned trial Court in view of pleadings of the parties, framed the following issues to resolve the controversy existing between the parties:--
Whether the suit of plaintiffs is maintainable in view of preliminary legal objections A & C of written statement raised by Defendants Nos. 1 & 2?
Whether the father of Plaintiff No. 1 has purchased the suit property mentioned in Para No. 2 of the suit from the father of Defendants Nos. 1 and 2 through Plaintiff No. 2 against the consideration of amount of Rs. 12,00,000/- in the month of April, 1981 and in this regard Rs. 700,000/- has been paid to the vendor?
Whether the Defendants Nos. 1 and 2 are bound to transfer the mutation entries in their favour after receiving the out standing amount of sale consideration?
Whether the plaintiffs are entitled to relief claimed for?
Relief?
The trial Court after hearing the parties decided the legal issues against the petitioners and dismissed the suit vide judgment dated 28.4.2005 and in appeal the findings were upheld, against which this petition is directed.
"Once the Court decides that the amendment is necessary for the said purpose of determining the real question, the Court is required by law to not only to allow an application made by a party in that behalf but is also bound to direct the amendment for the said purpose. Thus, the rule can be divided into two parts. In the cases falling under the first part, the Court has the discretion to allow or not to allow, the amendment, but under the second part once the Court comes to a finding that the amendment is necessary for the purpose of determining the real question, it becomes the duty of the Court to permit the amendment."
Addition in the title of suit and in prayer clause for specific performance of contract does not involve any drastic change in the suit to seek the relief, it is duty of the Court while deciding the case take into consideration the subsequent events which might have come into existence after the institution of the suit and on the basis of formal defect in suit dismissal should not be ordered and parties should be allowed to suitably amend pleadings even they do not ask for it.
What has been discussed herein above; I am of the view that the Courts below fell in error by not directing the petitioners for the amendment and illegally dismissed the suit, thus, I agree with the observations made by my learned brother Judge Mr. Justice Akthar Zaman Malghani only to the extent of remand of the case, however, the impugned judgments being not sustainable in the eyes of law are set-aside and the trial Court after allowing the above mentioned amendment to proceed with the matter in accordance with law.
(M. Ajmal Rana) Order accordingly
PLJ 2006 Quetta 108 (DB)
Present: Aman Ullah Khan Yasinzai, C.J. and Mehta Kailash Nath Kohli, J.
ALI AKBAR UMRANI--Petitioner
versus
ESSA KHAN and 2 others--Respondents
C.P. No. 839 of 2005, decided on 3.1.2006.
Payment of Wages Act, 1936 (IV of 1936)--
----S. 15--Constitution of Pakistan (1973), Art. 199--Recovery of outstanding amount--Authority under Payment and Wages Act, directed petitioner to pay outstanding amount to respondent/claimant--Order of authority assailed--Statutory remedy available to petitioner by filing appeal under S. 17 Payment of Wages Act, not availed by petitioner--Rule of alternate remedy is although not inflexible, yet where statute itself has provided remedy with certain rights and liability, then without discharging such liability exercise of Constitutional jurisdiction would not be proper, without having availed said remedy--High Court, however, has jurisdiction to exercise the same where order impugned was shown to be patently illegal and void and efficacious remedy was not found to be available--Factual controversy relating to claimants status as a "workman" having not been contested before authority and remedy of appeal having not been availed by petitioner, the same cannot be agitated before High Court in its Constitutional jurisdiction--Constitutional petition had been filed by petitioner to circumvent provision of S. 17, Payment of wages act 1936, whereunder before filing appeal, judgment debtor has to deposit--Alternate and adequate remedy being available to petitioner, Constitutional petition was not entertained by High Court and same dismissed. [Pp. 111 & 112] A, B & C
2004 SCMR 400, ref.
Mr. Azam Jan Zarkoon, Advocate for Petitioner.
Date of hearing : 26.12.2005.
Judgment
Mehta Kailash Nath Kohli, J.--Facts of the case, in brief, are that Respondent No. 1 Essa Khan filed an application before Authority Under the Payment of Wages Act (Respondent No. 3) claiming recovery of outstanding wages against petitioner and Respondent No. 2. It is the claim of Respondent No. 1 that he was engaged by petitioner with the collaboration of Respondent No. 2 for his trade and business on 15th June, 2003. It was further stated in the application that petitioner (contractor of B&R department, Kalat) gave assignment of repair of Soorab road and construction of rest house Soorab to applicant-Respondent No. 1. Record shows that the work started on 15th June, 2003 and was completed in the month of November, 2003, i.e. repair of 9876 feet (in length) 4 wide and 1 deep as well as repair of rest house; details of amount incurred are as under:
"(i) Road. Rs. 1,88,000/-
(ii) Rest House Rs. 11,750/-
Total:-- Rs. 1,99,750/-
Advance:-- Rs. 68,000/-
Balance:-- Rs. 1,31,750/-"
It was alleged that petitioner is responsible to make payment of outstanding dues of applicant-respondent No. 1.
Written statement was filed by petitioner, wherein application of applicant-Respondent No. 1 was contested on legal objections i.e. (i) the Court has no jurisdiction to adjudicate upon the matter; (ii) the applicant has no concern or relationship with replying respondent. On merits also, claim of applicant-Respondent No. 1 was denied. Similarly, Respondent No. 2 by way of filing written statement denied the claim of applicant-Respondent No. 1 on legal grounds i.e. (i) the applicant has not approached the Court with clean hands; (ii) no cause of action accrued to the applicant; (iii) no claim against replying respondent has been sought; (iv) replying respondent has no concern with the applicant; on merits also the application was contested.
Record reflects that petitioner and Respondent No. 2 failed to appear, as such, they were directed to be proceeded against ex-parte, vide order dated 18th July, 2005 passed by learned Authority (Respondent No. 3), and; vide order dated 6th August, 2005, Respondent No. 3 directed petitioner to pay Rs. 1,31,750/- to applicant-Respondent No. 1, as outstanding wages. Record reflects that petitioner filed application under Section-15 of the Wages Act, 1936, for setting aside the order dated 6th August, 2005, passed by Respondent No. 3. Rejoinder to the same was filed by respondent Essa Khan, whereby; the claim of petitioner was resisted by present Respondents Nos. 1 and 2 on legal as well as on factual grounds.
The learned Authority for payment of Wages Balochistan, Quetta i.e. Respondent No. 3, vide his order dated 8th November, 2005, dismissed the application of petitioner. Relevant portion of the same is reproduced herein-below:--
"... ... ...I have heard arguments of the parties and gone through the record and after careful perusal of case file it appears that on 14.4.2005 applicant/Respondent No. 1 filed an application under Section 15 of the Payment of Wages Act, 1936 for recovery of outstanding amount against Mr. Ali Akbar Umrani and Aziz-ur-Rahman and in response notices were issued to the respondents which were duly served upon them and the respondents contested the case through their counsel and also submitted their written reply and during the course of proceedings in spite of giving opportunities none of the counsel of the respondents nor respondents appeared in the Court nor informed the Court for their non-appearance. Further perusal of the case file shows that they have full knowledge about the date of hearing of the case but they intentionally and deliberately did not appear and even more no medical certificate in respect of illness has been produced in the Court from which it could be ascertained that their non-appearance was due to illness. Thus application filed appears baseless which is hereby dismissed."
Following relief has been sought in this petition:--
"It is, therefore, prayed that impugned order dated 18.7.2005, 6-8-2005 and 8.11.2005 passed by the Respondent No. 3 may be set aside and application of the Respondent No. 1 may also be dismissed, in the interest of justice, equity and fairplay."
Mr. Azam Jan Zarkoon, learned counsel appearing for petitioner has contended that learned trial Court had no jurisdiction to adjudicate upon the matter, as Respondent No. 1 was a petty contractor and was not covered within the definition of `work man'. It was further contended that in view of the fact that he was a petty contractor, was not entitled to the relief claimed.
Record contemplates that notice of the application was issued and written statement was filed by petitioner, thereafter he did not appear and application for setting aside ex-parte order was filed, was also dismissed, whereby; relief was granted to Respondent No. 1 Question was posed to learned counsel for petitioner that the statutory remedy available to the petitioner by filing appeal under Section-17 of the Payment of Wages Act, 1936, and; it was also pointed out that the requirement of law is that petitioner should deposit the amount before filing the appeal. Learned counsel stated that the order is patently without jurisdiction, as such, in view of judgment reported in NLR 2002 TD (Labour) 177, this Court has the jurisdiction to adjudicate upon the matter. The rule of alternate remedy is not inflexible, but where the Statute itself has provided remedy with certain rights and liability, then without discharging the said liability, it will not be proper to exercise jurisdiction, without having availed the said remedy. The High Court has the jurisdiction to exercise the same, where order is shown to be patently illegal and void, and; the efficacious remedy is not found to be available. Reference is made to the case of Farzand Raza Naqvi and 5 others v. Muhammad Din through legal heirs and others (2004 SCMR 400), wherein; their lordships of the Hon'ble apex Court were pleased to consider that the rule of alternate remedy is not absolute, however, they were of the view that the Constitutional jurisdiction cannot be availed to substitute the right of appeal. Relevant observations at page No. 404 are reproduced hereinbelow:
"4. There is no cavil to the proposition that if the remedy of appeal is available to a party under the statute, without availing such statutory remedy, the Constitutional jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be invoked and the remedy of writ petition cannot be allowed to be availed as substitution of appeal."
Although the Superior Courts have held in various cases that the Constitutional jurisdiction can be exercised in the presence of alternate remedy provided, if the order is shown to be without jurisdiction, void, ab-initio. Here is was the trial Court, who had to see whether the Respondent No. 1 is a `work man' or is covered within the definition of Section-2 of the Payment of Wages Act, 1936. Learned counsel for petitioner has failed to show as to why he did not appear before the trial Court and failed to prove before the competent authority that Respondent No. 1 was not a work man, and; the matter remained pending for a considerable time before the Authority under Payment of Wages Act and even this jurisdiction can also be exercised by the appellate authority; as the appellate authority has the same jurisdiction as that of trial Court. We while in Constitutional jurisdiction cannot interfere in the factual controversy as to whether he Respondent No. 1 did fall within the definition of work man, and thus; the application was competent before the trial Court. Moreover, special provision has been put into by Section-17 of the Payment of Wages Act, 1936 that in case, if decree is appealed, the Judgement Debtor has to deposit the entire amount before filing appeal. For convenience, Section-17 of the Act, 1936 is reproduced herein-below:--
"17. Appeal. (1) An appeal against the direction made under sub-section (3) or sub-section (4) of Section 15 may be preferred within thirty days of the date on which the direction was made before the Labour Court constituted under the Industrial Relations Ordinance, 1969 (XXXIII of 1969) within whose jurisdiction the cause of action to which the appeal relates arose---
(a) by the employer or other person responsible for the payment of wages under Section 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees:
Provided that no appeal under this clause shall lie unless the memorandum of appeal is accompanied by a certificate of the authority to the effect that the appellant has deposited with the authority the amount payable under the direction appealed against, or
(b) by an employed person or, if he has died, by any of his heirs, if the total amount of the wages claimed to have been withheld from the employed person or from the unpaid ground to which he belonged exceeds fifty rupees, or
(c) by any person directed to pay a penalty under sub-section (4) of Section 15.
(1-A) All appeals pending before any District Court under this Section immediately before the commencement of Labour Laws (Amendment) Ordinance, 1974 shall on such commencement stand transferred to, and be disposed by the Labour Court within whose jurisdiction the cause of action to which the appeal relates arose.
(2) Save as provided in sub-section (1), any direction made under sub-section (3) or sub-section (4) of Section 15 shall be final."
The present petition has been filed to circumvent the said provision of law, is also not maintainable in law. Thus, we hold that the petitioner has alternate and adequate remedy, available, and, in view of peculiar circumstances of the case, we refrain to entertain this petition under Article-199 of the Constitution of the Islamic Republic of Pakistan, 1973. e
In view of the reasons stated herein-above, the petition is accordingly dismissed in limine.
(Aziz Ahmad Tarar) Petition dismissed
PLJ 2006 Quetta 113
Present: Muhammad Nadir Khan, J.
TAUSEEF AHMAD DAR--Appellant
versus
QUETTA SERENA HOTEL through its GENERAL MANAGER SHARA-E-ZARGHOON QUETTA and another--Respondents
Labour Appeal No. 2 of 2001, decided on 22.7.2005.
Industrial Relations Ordinance, 1969 (XXIII of 1969)--
----Ss. 25 & 37--Industrial Commercial Employment (Standing Orders) Ordinance, 1968--O. 15--Civil servant was dismissed from service on the charge of using abusive language--Grievance petition was dismissed by Labour Court--Assailed--Validity--Civil Servant attended the inquiry proceedings, and declined to participate in the inquiry when his second witness was being cross-examined--Civil servant failed to point out any procedural defect or illegality committed by the employer hotel in conducting the enquiry and his dismissal from service--Inquiry Officer as well as the Labour Court about applicant having used filthy language against the General Manager--Applicant was alleged to have committed omissions and misconduct--Civil servant was suspended from service--Civil servant could not negate any of the documents produced by the respondent about his previous conduct--His behaviour was improper and he frequently repeated the acts of omission for which he was warned but instead of changing his behaviour he acted in disorderly manner--Accumulative effect of his acts in view of Standing Order 15 is found to be misconduct--Action taken by the respondent could not be said to be against the law or in violation of the procedure laid down by the Standing Orders--Impugned judgment based on the evidence of the parties and free from any legal infirmity--Appeal dismissed. [Pp. 117, 118 & 120] A, B, C, D & E
Mr. Kamran Murtaza, Advocate for Appellant.
Mr. Abdul Sattar, Advocate for Respondents.
Date of hearing: 21.6.2005.
Judgment
This Labour Appeal u/S. 37 of Industrial Relations Ordinance, 1969 (hereinafter referred to as "IRO") is directed against the judgment dated 21.12.2000 passed by District and Sessions Judge (Ad hoc)/Presiding Officer 1st Labour Court, Quetta (hereinafter referred to as the "trial Court") whereby the application filed by the appellant (hereinafter referred to as the applicant/worker) u/S. 25-A of the IRO against respondents challenging the order of his dismissal from service, has been dismissed.
The relevant facts arising out of the record are that the applicant/worker initially joined service of the respondent hotel on 17.10.1992 as temporary telephone operator, he resigned from service on 20.12.1992 and was rehired on 19.6.1963 and his services were regularized/confirmed on 21.3.1994. Subsequently on 24.11.1998 he being found involved in misconduct was dismissed from service after inquiry. The applicant feeling aggrieved by his dismissal from service, served the respondents with grievance notice dated 7.12.1998 and on receiving of negative reply he filed the grievance petition on 28.1.1998 wherein he denied committing of any misconduct and claimed that he was active member of "Quetta Serena Hotel Labour Union" and was lastly elected as General Secretary of the same. According to the appellant he was dismissed without any cogent reason or justification. It has been further stated by the appellant that the respondent threatened him not to take part in the activities of union failing which he will face dire consequences and he has been dismissed to avoid his lawful trade union activities.
The respondents resisted the application by filing of written statement wherein they raised number of preliminary objections with regard to the maintainability of the application and on merits the plea of the applicant was denied contending that before issuance of dismissal order domestic inquiry was held and the charge of using abusive language was proved against the applicant who was in habit of such practice.
The learned trial Court, out of the pleadings of the parties framed following issues:--
"Whether the present application is liable to be dismissed in view of P/obs: A' toD' of the W.S.
Whether the respondents intentionally and willfully have snatched the job of the applicant just to avoid his lawful trade Union Activities?
Whether the applicant was involved in unhealthy practice of using abusive language.
Whether the applicant is entitled to relief claimed for?
Relief?"
After framing of the issues the parties were called upon to adduce their evidence to support their respective pleas. Applicant examined AW. 1 Yawar Shakil, AW.2 Luqman Khan, AW.2 Irfanullah and also got recorded his own statement. On the other hand respondents in addition to the statement of their representative/attorney, examined three witnesses namely RW. 1 Saeed Ahmed, RW.2 Liaquat Ali and RW.3 Gul Ahmed.
The learned Presiding Officer, Ist Labour Court Quetta concluded the proceedings by means of judgment dated 21.12.2000 whereby the application u/S. 25 of IRO filed by the applicant, has been dismissed.
Mr. Kamran Murtaza, the learned counsel for the appellant and Mr. Abdul Sattar, the learned counsel for the respondents have been heard at length and the record of the case examined minutely. There is no dispute between the parties about applicant being in service of respondent as workman and was dismissed from service vide order dated 24.11.1998 as he allegedly committed misconduct by using filthy language against the General Manager in the meeting held on 2.11.1998.
The record reflects that one Liaquat Ali made an application to the Personal Manager of the respondent hotel stating that on 2.11.1998 at 4.00 p.m. he went to the Cafeteria to take tea. The meeting of General Body of the Union was in progress, during which Tauseef Dar was abusing General Manager. On the basis of above information the applicant was issued show-cause notice dated 5.11.1998 which reads as under:
"It has been reported against you that on 2nd November 98 at 4:15 p.m. when Serena Labour Union's General Body meeting was going on you have abused General Manager stating.
The above act of your amounts to gross misconduct under the meaning of West Pakistan (Standing Orders) Ordinance, 1968 Section (15).
You are therefore called upon by meaning of this notice to "Show Cause" within three days from the receipt of this letter, as to why disciplinary action should not be taken against you for committing an act of this misbehaviour.
In the event no reply is received from you within the above mentioned period, it will be presumed that you have nothing to say in your defence and the matter will be decided ex parte as provided under the law."
The applicant vide his reply dated 7.11.1998 denied the allegations. His reply was found to be unsatisfactory whereupon inquiry letter dated 10.11.1998 was issued to the applicant, informing him that on 12.10.1998 at 10.00 a.m. the inquiry will be held in the office of Assistant Manager, Manpower Development. The said letter was followed by letter dated 13.11.1998 reflecting that the applicant did not attend the inquiry on 12.11.1998 and he was provided another opportunity by adjourning the inquiry to 16.11.1998, meanwhile services of the applicant were suspended by means of letter dated 10.11.1998 and he was charge-sheeted. The applicant joined the inquiry. The applicant admitted holding of the meeting on 2.11.1998, however, he denied use of abusive language. To prove the charge the respondent hotel examined Mr. Anwar, Mr. Shaukat Khan and Liaqat Ali. In rebuttal the applicant examined Luqman Khan, and while the inquiry was in progress and his second witness Muhammad Anwar was being cross-examined, the applicant refused to participate in the inquiry and declined to produce Muhammad Anwar for further cross-examination. The inquiry officer concluded the inquiry and submitted his report dated 20.11.1998 with following recommendation:
"RECOMMENDATION OF THE INQUIRY OFFICER
In the light of the Findings and the past acts of Misconduct committed by Mr. Tauseef Ahmed Dar, it is recommended that strict disciplinary action should be taken against him."
After submission of the inquiry report final show-cause notice dated 20.11.1998 was issued to the applicant which was replied by him on 24.11.1998 but the employer/respondent hotel found the same as unsatisfactory and he was dismissed from service vide order dated 24.11.1998. Being aggrieved by his dismissal order, the applicant after serving notice u/S. 25 of IRO filed the grievance petition before the Labour Court.
During trial the applicant denied the allegation of respondents and in support of his plea three witnesses namely AW.1 Yawar Shakil, AW.2 Luqman Khan and AW.3 Irfanullah, were examined by him.
AW.1 Yawar Shakil was previously in service of Serena Hotel and was removed from service prior to 1998, he without stating above the meeting held on 2.11.1998 wherein the appellant allegedly used filthy language, stated that while he was working as duty manager in the hotel, he was asked by the management to fabricate cases against employees namely Luqman and Irfan. In cross-examination he admitted that as he was not in service of the hotel in year 1998, therefore, he has no knowledge about the meeting of General Body held in year 1998. AW.2 Luqman stated about attending the meeting on 2.11.1998. He further stated that he did not hear any abusive language used by the applicant, however, in cross-examination he admitted that he heard people saying that the applicant abused the General Manager, he further admitted that till date Management did not involve any of the employee in a false case. He further stated that during speech the applicant did not abuse any one and after speech of applicant he left the meeting. AW.3 Irfanullah stated that in the meeting of General body held on 2.11.1998 applicant Tauseef did not abuse any one. AW.3 in cross-examination admitted that he was also suspended in the same case as he was alleged to have used abusive language and after inquiry he was acquitted of the charge. According to AW. 3 he was acquitted in result of the agreement between administration and union and the inquiry against him was formal. AW.3 expressed his lack of knowledge that five members of the union gave in writing that the applicant used abusive language. The applicant in his statement though denied the allegations but admitted that a detailed inquiry was held by the Department and he did not object to the same.
On the other hand the statements of RW.1 Syed Anwar and RW.2 Liaquat Ali employees of Serena Hotel against whom applicant failed to bring on record any ill will or motive for making of false allegation bout use of abusive language by applicant, in their statements deposed about their presence during the meeting held on 2.11.1998 wherein the applicant abused the General Manager and used filthy language.
The respondent exhibited the inquiry report alongwith the relevant documents i.e. notice about the meeting of general body, application made by RW.2 Liaquat Ali, notices and the reply of the applicant, the inquiry proceedings, inquiry report and the earlier show-cause notices/inquiry letters issued to the applicant during his service.
As stated hereinabove the applicant attended the inquiry proceedings and the evidence of prosecution was examined in his presence, applicant also produced two witnesses and declined to participate in the inquiry when his second witness namely Muhammad Anwar was being cross-examined by the respondent hotel and no reason has been brought on record for his such act of the applicant who failed to point out any procedural defect or illegality committed by the employer hotel in conducting the inquiry and his dismissal from service as the Inquiry Officer was of the view that in the light of the findings and the past acts of misconduct committed by Mr. Tauseef Ahmed Dar strict action should be taken against him.
After going through the proceedings of the inquiry and the evidence produced by the parties before Ist Labour Court, Quetta I find myself in agreement with the findings of the Inquiry Officer as well as the Labour Court about applicant having used filthy language against the General Manager.
The learned counsel for the applicant argued that use of filthy language cannot be termed as misconduct. According to the learned counsel on the said allegation the Management lodged a complaint against the applicant in the police station but subsequently the same was withdrawn thereby meaning that the allegation was withdrawn, hence in such view of the matter the applicant could not be dismissed from service on the said charge.
Order 15 of the schedule of the Industrial Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Standing Orders), provides the punishments for omissions and misconduct committed by a workman, it also defines misconduct and provides the procedure for initiating action against the workman for the omission and misconduct, which reads as under:
"Punishments: (1) A workman may be reprimanded or fined in the manner prescribed under Payment of Wages Act, 1936 (IV of 1936), up to three paisa in the rupee of the wages payable to him in a month, for any of the following acts or omissions, namely--
(i) in cases where the Payment and Wages Act, 1936 (IV of 1936) is applicable, the list of acts and omissions for which fine may be levied shall be same as approved by the Chief Inspector of Factories or any other officer concerned.
(ii) In other cases, the following shall be the list of acts and omissions--
(a) discharged or disobedience or rules or orders;
(b) improper behaviour, such as drunkenness;
(c) making false or misleading statements;
(d) inefficient, dilatory, careless or wasteful working;
(e) malingering.
(2) A workman found guilty of misconduct shall be liable to any of the following punishments--
(i) fine in the manner prescribed the Payment of Wages Act, 1936 (IV of 1936), upto three paisa in the rupee of the wages payable to him in a month;
(ii) withholding of increment or promotion for a specified period not exceeding one year;
(iii) reduction to a lower post; or
(iv) dismissal without payment of any compensation in lieu of notice.
(3) The following acts and omissions shall be treated as misconduct--
(a) wilful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior;
(b) theft, fraud, or dishonesty in connection with the employer's business or property;
(c) wilful damage to or loss of employer's goods or property;
(d) taking or giving bribes or any illegal gratification;
(e) habitual absence without leave or absence without leave of more than ten days;
(f) habitual late attendance;
(g) habitual breach of any law applicable to the establishment;
(h) riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline;
(i) habitual negligence or neglect of work;
(j) frequent repetition or any act of omission referred to in clause (l);
(k) striking work or inciting others to strike in contravention of the provisions of any law, or rule having the force of law;
(l) go-slow.
(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct [within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer's] and is given an opportunity to explain the circumstances alleged against him. The approval of [the employer shall be required in every case of dismissal] and, the employer shall institute independent inquiries before dealing with charges against a workman:
[Provided that the workman proceeded against may, if he so desires for his assistance in the enquiry, nominate any workman employed in that establishment and the employer shall allow the workman so nominated to be present in the enquiry to assist the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours.]
(5) Where, for the purposes of conducting an inquiry into the alleged misconduct of a workman, the employer considers it necessary, he may suspend the workman concerned for a period not exceeding four days at time [so, however that the total period of such suspension shall not exceed four weeks except the matter is pending before an arbitrary, a Labour Court, Tribunal or Conciliator for the grant of permission under Section 47 of the Industrial Relations Ordinance, 1969 (XXIII of 1969). The order of suspension shall be in writing and may take effect immediately on delivery to the workman. During the period of suspension, the workman concerned shall be paid by the employer subsistence allowance of not less than fifty per centum of the wages. If the workman is found not guilty, he shall be deemed to have been on duty during the period of suspension and shall be entitled to the same wages as he would have received if he had not been suspended."
The record reflects that prior to the incident of 2.11.1998 too the applicant was alleged to have committed omissions and misconduct as he allegedly was found entering the rooms occupied by female guests in violation of Hotel Rules and he also allegedly tampered the telephone vouchers. The applicant was suspended from service he was issued warnings on different occasions. The applicant could not negate any of the documents produced by the respondent about his previous conduct and it has already been held that the evidence available on the record proves that on 2.11.1998 the applicant used abusive/filthy language against the General Manager, hence his behaviour was improper and he frequently repeated the acts of omission for which he was warned but instead of mending his behaviour he acted in disorderly manner. The accumulative effect of his acts in view of Standing Order 15 is found to be misconduct. Therefore, the action taken by the respondent hotel cannot be said to be against the law or in violation of the procedure laid down by the Standing Order 15. The dismissal order of the applicant, therefore, being unexceptional, cannot be interfered. Accordingly the judgment dated 21.2.2000 passed by District and Sessions Judge (Ad hoc)/Presiding Officer Ist Labour Court, Quetta based on the evidence of the parties and free from any legal infirmity is upheld. The appeal having no merits is dismissed.
(M. Ajmal Rana) Appeal dismissed
PLJ 2006 Quetta 121
Present: Muhammad Nadir Khan, J.
NAZAR ALI--Appellant
versus
MALIK MUHAMMAD QAZZAFI--Respondent
F.A.O. No. 59 of 2003, decided on 15.12.2004.
(i) Balochistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----Ss. 13(4) & 15--Eviction petition of respondent on the ground of personal bona fide use--Accepted by Rent Controller--Assailed--Validity--Eviction applications filed by the brothers of the applicant and the other legal heirs of (father of respondent) it would suffice to mention that sale of one of the vacant shop in the save vicinity by the applicant and other legal heirs and concealment of the fact of applicant/landlord having business of ghee/edible oil, adversely affects the bona fides of the applicant and in such circumstances eviction of the tenants interest is safeguarded by S. 13(4) of the Ordinance would not be justified--Concealment of the fact and sale of a shop situated in the same vicinity after it was got vacated through the Court adversely affects the bona fides of the applicant/landlord, eviction of the tenant in the present case cannot be validated solely on the ground that his interest is safeguarded by S. 13(4) of the Ordinance--High Court did not agree with the findings of Rent Controller whereby the application of the respondent/landlord has been allowed--Impugned order set aside and application filed by the respondent/landlord dismissed in circumstances. [P. 127 & 128] B, C & D
1981 SCMR 789; 1989 CLC 1386 and PLJ 2004 Quetta 18 disting.
(ii) Balochistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(4)--Ejectment petition--Applicant landlord a member of rich family and has other business--Applicant denied that shop was reuqired by applicant for personal bona fide use that applicant was doing business and application was filed when he did not submit demand of increase of rent or alternate to purchase shop--Contention of--Held: There can be no limit on the earning of an individual and his efforts to increase hence establishing of a business despite having earning from properties would not debar the landlord to establish his own business to increase his earnings. [Pp. 125 & 126] A
1988 SCMR 1515 rel.
Mr. Tahir Muhammad Khan, Advocate for Appellant.
Mr. Muhammad Sharif, Advocate for Respondent.
Date of hearing: 30.11.2004.
Judgment
This appeal u/S. 15 of Balochistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as to the Ordinance) is directed against the order dated 11.10.2003 passed by Civil Judge-V/Rent Controller, Quetta whereby the application filed by the respondent (hereinafter referred to as the landlord/applicant) u/S. 13 of the Ordinance for eviction of the appellant (hereinafter referred to as the tenant) from the shop Bearing No. 4-45/2-A/12 Abdul Sattar Road, Quetta on the ground that the same is required for personal bona fide use and occupation of the landlord/applicant has been allowed directing the tenant/appellant to handover the vacant possession of the disputed shop within three months after passing of the order to the landlord/applicant.
Mr. Tahir Muhammad Khan, the learned counsel for the appellant argued that the learned Rent Controller has failed to appreciate the evidence in its true prospective. The landlord/applicant failed to establish his bona fides with regard to his personal need and requirement. The trial Court also failed to take into consideration the suitability of the shop in question for establishing of a general store while the landlord/applicant belongs to a very affluent and well-to-do family having business of hotel and also own a shopping plaza. Whereas a shop situated in the same vicinity was got vacated from one of the tenant by the father of the landlord/applicant, and the same was subsequently sold out by the applicant and his brothers. Furthermore, the tenant established that the landlord/applicant was already doing business at Alamdar Road which he malafidely not only concealed but denied which further reflects on his bona fide. Therefore, in such circumstances order for vacating the shop by the appellant on the ground of its being required by the landlord/applicant for his personal use being in conflict with the evidence available on the record is liable to be set aside. The learned counsel for the appellant supported his arguments by the following case Law:--
1988 SCMR 819.
1988 SCMR 1515.
PLD 1982 Karachi 790.
Mr. Muhammad Sharif, the learned counsel for the respondent/ landlord supporting the order of the Rent Controller argued that bona fides of the applicant cannot be doubted on the ground that he belongs to a wealthy family having large property and joint business as there is no bar on a member of such family to establish his own private business to increase his earning. Similarly filing of eviction applications by the brothers of the applicant, who also inherited property after the death of their father would not make the plea of landlord/applicant mala fide. Besides, the interest of tenant is safeguarded by Section 13(4) of the Ordinance. The learned counsel for the landlord/applicant further argued that the tenant being unable to rebut the claim of the landlord with regard to his personal requirement raised plea with regard to increase of rent and sale of the shop but failed to establish the same. The learned Rent Controller taking into consideration the facts and circumstances emerging from the evidence of the parties allowed the application and the order being free from any misappreciation of evidence or any legal infirmity needs no interference. The learned counsel for the respondent/landlord relied on following case law:--
1981 SCMR 784.
PLJ 2004 Quetta 18.
1981 CLC 1386.
The submissions made by the learned counsel for the parties considered, record of the case perused. As already stated hereinabove the respondent sought the eviction of the appellant from the shop in question on the sole ground that the shop is required by him for his personal bona fide use. To substantiate his claim the landlord/applicant, in addition to his own affidavit filed affidavits of Jan Muhammad, Malik Muhammad Yasir however, Malik Jan Muhammad could not be produced for cross-examination, hence his affidavit was excluded from the evidence, whereas Malik Muhammad Yasir who happens to be the brother of applicant and applicant himself entered the witness-box to undergo the test of cross-examination.
AW Malik Muhammad Yasir in cross-examination admitted that after three years of the death of their father he sold a shop to Haji Tahir. He further admitted that eviction application has been filed by him also for eviction of one of the tenant and the Court granted period of one year to the tenant to vacate the shop. AW Malik Muhammad Yasir stated that he supervises the business of the hotel situated at Abdul Sattar Road which have 30, rooms and he also collects the rent of 35 shops situated at the ground floor of the hotel which were rented out by his father on receiving of Pagri. AW Malik Yasir denied that the hotel and the shops is joint property of the heirs of Malik Nazeer. According to AW the applicant intents to establish a general store in the shop in dispute and denied that the applicant is doing business of wholesale at Alamdar Road. It has been admitted by him that 25% rent is increased after every three years by the tenants.
The applicant in cross-examination stated that his father left behind a hotel, Shahzaib Plaza and eight shops, the hotel is stated to be having 30 rooms while on the ground floor and basement 30 shops are situated. Applicant also admitted that after every three years the tenants increase the rent by 25%. Applicant admitted that at Alamdar road also property left by his father is situated which includes a vacant house and no shop. Further at Sabzimandi also property left by his father is situated. Applicant stated that after the death of his father they filed eviction application against Sarwar Ali and on his owned added that it was for the use of Malik Basil. It has also been admitted by him that eviction application was filed against Ramzan also. The applicant denied that since 1997 he is doing business of wholesale at Alamdar Road and denied doing of any business after completion of his education.
The tenant in rebuttal filed the affidavit of RW. 1 Nisar Ahmed, RW. 2 Syed Agha and his own affidavit. The applicant himself as well as his witnesses also appeared to face the cross-examination of the landlord. In addition to the above-mentioned affidavits the applicant filed following documents and called upon the applicant/landlord to admit the same or otherwise:--
(i) Order dated 13.10.1996 passed by Civil Judge-III/Rent Controller Quetta in Eviction Application.
(ii) Legal notice dated 8.2.1995 issued to Haji Muhammad Sadiq by Sohail Ahmed Rajput, Advocate on behalf of Malik Muhammad Nazeer.
(iii) Order dated 30.8.1997 passed by Civil Judge-III/Rent Controller Quetta in Eviction Application No. 48/1996 titled as Malik Muhammad Basil and others versus Sarwar Ali.
(iv) Statement of AW III Muhammad Anwar s/o Haji Abdul Rashid before Civil Judge-III, in Eviction Application titled as Malik Muhammad Basil and others vs. Sarwar Ali.
(v) Statement of Malik Muhammad Basil before Civil Judge III Quetta in eviction application titled as Malik Muhammad Basil & others vs. Sarwar Ali.
(vi) Judgment of Hon'ble High Court of Balochistan in F.A.O. No. 67/1997 passed on 19.12.1997.
(vii) Judgment of Hon'ble Supreme Court of Pakistan passed on 4.6.1999 in Civil Petition No. 11-Q of 1998.
(viii) Statement of Malik Muhammad Yasir s/o Malik Muhammad Nazir before Civil Judge IV/Rent Controller Quetta in eviction application titled as Malik Shakir vs. Ziauddin.
(ix) Statement of Malik Muhammad Basil s/o Malik Muhammad Nazir before Civil Judge IV/Rent Controller in Eviction Application titled as Malik Shakir vs. Zaiuddin."
The landlord/applicant admitted all the documents. Furthermore, the respondent/tenant filed an application for admission of the fact that the landlord/applicant is running a business of edible oil and ghee at Alamdar Road, Quetta and also maintaining bank accountsbearin Bearing AC No. 2592-0 in Muslim Commercial Bank, Toghi Road, Quetta. However, both the above facts were denied by the landlord/applicant who also filed the application of Manager Muslim Commercial Bank, Toghi Road Branch Quetta stating that the Account No. 2592 is in the name of Abdul Khaliq s/o Haji Muhammad Khan.
Adverting to the statements of the RWs and the respondent/tenant it would be suffice to state that RW. 1 Nisar Ahmed stated about the business of wholesale being run by the applicant at Alamdar Road, Quetta while RW. 2 Syed Agha claimed that in his presence the applicant came to the shop and demanded increase of rent to the tune of Rs. 10,000/- or in alternate the respondent/tenant was asked to purchase the shop at market rate. The applicant in his statement denied that the shop is required by the applicant for his personal bona fide use and stated that the applicant is doing business of wholesale and the application was filed when he did not submit to the demand of increase of rent or in alternate to purchase the shop.
There can be no limit on the earning of an individual and his efforts to increase the same, hence establishing of a business despite having earning from properties would not debar the landlord to establish his own business to increase his earnings. For such view I take support of the judgment of Hon'ble Supreme Court 1988 SCMR 1515. The observations relevant on the subject reads as under:
We have reviewed the proceedings and find that a person may be very affluent and well to do, may not need a property for his economic betterment. All the same he may want it to keep himself meaningfully pre-occupied, to advance and fulfil his educational and cultural aspirations, to meaningfully contribute in his own way to his social and intellectual betterment. When the landlord in this case stated that he wanted to run an educational institution as he had been doing before its take over, he expressed that need of his which was personal to him, which had a background and a plausible reason for it. The bona fide, the genuineness of the urge and the past experience have not been doubted by any of the authorities dealing with the case and we also find no occasion to doubt it. In a case one like before us what the authorities have to ensure is that such a requirement is not used as a ruse, or pretext to get the tenant evicted without any real intention to utilize the property in the manner disclosed. The authorities cannot be judges of the soundness of an enterprise or the correctness of the choice or the suitability of the individual for the enterprise. We find, therefore, that it was not a case where the High Court could have interfered while exercising the Constitutional jurisdiction and has rightly not interfered with it."
Hence applicant/landlord being member of a wealthy family and having income from other properties would not affect his entitlement to get vacated shop for his personal bona fide use. In such view of the matter the pivotal point which need to be examined is bona fides of the landlord.
The applicant/landlord as well as his witness claimed that the applicant is jobless and he never did any business and it has been categorically denied by both of them that the applicant is neither running a wholesale shop at Alamdar Road nor in past he was running any such shop. To the contrary the documents referred to hereinabove filed by the respondent/tenant before the Rent Controller and admitted by the landlord/applicant includes statement of Malik Muhammad Basil recorded in eviction Application No. 48 of 1996 titled as Malik Muhammad Basil and others vs. Sarwar Ali. In cross-examination Malik Basil denied that at Alamdar Road he has opened a wholesale shop of edible oil/ghee and voluntarily stated that the ghee shop belongs to his brother Qazafi. The counsel for the landlord/applicant though made an attempt to get exonerated of the statement of Malik Basil who happens to be the brother of applicant but felt difficulty in said regard. While the said statement reflects that the applicant as well as his witness Malik Muhammad Yasir who also happens to be brother of applicant have not only concealed the said fact but have denied the same which in the stated circumstances reflects on the bona fides of the landlord/applicant. Furthermore, it is an admitted fact that after three years of death of the father of the applicant/landlord a shop in the same vicinity was got vacated from the tenant and was subsequently sold to one Haji Tahir. It would not be out of place to mention that AW Malik Muhammad Yasir who stated that he is looking after the business of the hotel also filed eviction application against one of the shopkeeper at Abdul Sattar Road and eviction order has been passed allowing the tenant period of three years for vacating the shop. Similarly one of the other brother of the applicant Malik Basil also filed eviction application against another tenant occupying the shop in same vicinity and the eviction order has been passed in favour of Malik Basil. In addition to above eviction applications were filed against Sarwar Ali and Muhammad Ramzan occupants of the shop in the same vicinity. Without making of any observation with regard to the eviction applications filed by the brothers of the applicant and the other legal heirs of late Nazeer Ahmed it would suffice to mention that sale of one of the vacant shop in the same vicinity by the applicant and other legal heirs of Nazeer Ahmed and concealment of the fact of applicant/landlord having business of ghee/edible oil at Alamdar Road, adversely affects the bona fides of the applicant and in such circumstances eviction of the tenant only on the ground that his interest is safeguarded by Section 13(4) of the Ordinance would not be justified. The judgment 1981 SCMR 789 having facts and circumstances which being distinguishable from the facts and circumstances of the case in hand cannot lend any support to the case of the applicant/landlord as in the said case the landlord filed an application for eviction of a tenant which was allowed and subsequently he filed another application for eviction of another tenant for personal bona fide use of the shop for his son and it was held that second application was not barred. Similarly the judgment 1981 CLC cannot be applied to the instant case as the circumstances which were taken into consideration for eviction of the tenant cannot be matched with the case of the applicant/landlord. The relevant observations reads as under:
"I have gone through the entire evidence with the help of the learned counsel for the parties. On the question of personal need Kh. Nasrullah (P.W.2) has stated that he knew Sh. Rashid and his son Asif, who are carrying on the business of stamp-making on a footpath. Similarly the respondent has appeared as his own witness. He deposed that he alongwith his son carried out the business of stamp making in front of the shop in dispute at the foot of the stairs on a place which is not more than 2« feet. He further deposed that the place where he was carrying on the business belonged to the Municipal Committee. He specifically stated that they did not own any other shop. The statement was quite sufficient to establish the bona fides."
Adverting to the judgment PLJ 2004 Quetta 18 authored by me also cannot be of any help to the landlord for the simple reason that in the said case the landlord filed second application against the same tenant as his first application though was allowed and was challenged before this Court and the order was set aside while the appeal filed by the landlord against the order of this Court was withdrawn with permission to move afresh application against the respondent u/S. 13 of Balochistan Urban Rent Restriction Ordinance, 1959 and on filing of second application which was allowed and challenged before this Court in FAO No. 49/2002 and it was observed that law does not bar filing of second eviction application if subsequently any ground provided by Section 13 of Ordinance, 1959 become available to the landlord. In the same judgment it has been held that the claim of the landlord/applicant can be attacked only if the same is found to be tainted with mala fide and it was further observed that no mala fide on the part of landlord/applicants could be detected to doubt his bona fides only because previously he filed application seeking eviction of the tenant on one of the ground provided by Section 13 of Balochistan Urban Rent Restriction Ordinance, 1959 but failed to prove the same. Whereas in the instant case it has already been held that concealment of the fact and sale of a shop situated in the same vicinity after it was got vacated through the Court adversely affects the bona fides of the applicant/landlord, therefore, the eviction of the tenant in the present case cannot be validated solely on the ground that his interest is safeguarded by Section 13(4) of the Ordinance.
Thus, having regard to the discussion made hereinabove I am unable to agree with the findings of the learned Civil Judge-V/Rent Controller, Quetta whereby the application of the respondent/landlord has been allowed. Accordingly the order dated 11.10.2003 is set aside and the application filed by the respondent/landlord is dismissed, with no order as to cost.
(M. Ajmal Rana) Appeal accepted.
PLJ 2006 Quetta 129
Present: Amanullah Khan Yousafzai, C.J. Akhtar Zaman Malghani, J.
MINING INDUSTRIES OF PAKISTAN (Pvt.) Ltd. through its Director--Petitioner
versus
DEPUTY SPEAKER, BALOCHISTAN ASSEMBLY and others--Respondents
C.P. No. 276 of 2005, decided on 30.5.2006.
(i) Constitution of Pakistan, 1973--
----Arts. 63(4) 166, 69 and 127, Election Petition--Determination of disqualification--Acts and deeds--Obligation--Powers of Speaker and deputy Speakers--Freedom of Speech--A member of Parliament or Provincial Assembly would render himself disqualified under Art. 63 (1)(g) to remain member as such, if he propagates any opinion or acts in any manner prejudicial to the ideology, sovereignty, integrity, security of Pakistan, morality or maintenance of Public order, or even defames or brings into ridicule the judiciary or Armed Forces of Pakistan--Proceedings of an assembly are protected under Art. 69 but to enjoy that immunity, such proceedings must fall wholly with privileges of assembly--It is certainly not legal right or privilege of assembly to out step its own competence and jurisdiction laid down by the constitution. [P. ] A & B
(ii) Constitution of Pakistan, 1973--
----Art. 63(2), Executive Order XXV of 2002--Question of disqualification, determination of--Powers of speaker and Deputy Speaker--Acts and deeds--It is for the speaker and in his absence, Deputy Speaker is under legal obligation to take a decision on submission of a reference as to whether a question as contemplated under Art. 63(2) of Constitution has arisen because he is not to act as a post office and to forward reference without application of mind and determining the question--Held : On submission of an application or reference, speaker or Deputy Speaker of Assembly should forward the question regarding disqualification of member Assembly to the Chief Election Commission for taking decision at his end--Order accordingly. [P. ] C & D
PLD 1970 SC 98, 1995 MLD 1903, ref.
M/s Nawaz Kasuri & Tariq Mehmood Butt, Advocate for Petitioner.
Mr. Ch. Mumtaz Yousaf S.C., Mr. H. Shakil Ahmed & Mr. Mansoor Khan Jadoon, Advocates for Respondent.
Date of hearing : 30.5.2006.
Judgment
Following reliefs have been claimed in the instant Constitutional Petition:--
"Under the circumstances, it is respectfully prayed that this Hon'ble Court may be pleased to direct Respondent No. 1 to perform his constitutional obligations by making reference under Article 63(2) of the Constitution of Islamic Republic of Pakistan, 1973 against Respondents No. 2 and 3 for determination of their disqualification as envisaged under Article 63(g) of the Constitution of Islamic Republic of Pakistan, 1973.
Any other relief as may be fit and appropriate may also be awarded accordingly."
Briefly stated, facts of the case are that the petitioner filed an application before the Respondent No. 2 for making reference to the Chief Election Commissioner of Pakistan as contemplated under Article 63(2) of the Constitution as according to the petitioner, Respondent No. 2 and Respondent No. 3 (speaker) had rendered themselves disqualified on account of their acts and deeds enumerated in the application. The grievance of the petitioner is that the Deputy Speaker failed to perform his constitutional obligation despite repeated requests.
We have heard the learned counsel for the parties and have also gone through the record. The learned Counsel for the petitioner vehemently contended that the speaker of the Provincial Assembly as well as respondents No. 2 had rendered themselves disqualified, therefore; a petition was filed before Respondent No. 1 to refer their case for disqualification as envisaged under Article 63(2) to the Chief Election Commissioner of Pakistan, which he was under legal obligation to do but he refused to refer the matter. The learned counsel was of the view that Deputy Speaker on receipt of the application should have sent the reference to the Chief Election Commissioner, who was competent to decide as to whether on the basis of allegations mentioned in the application, Respondents No. 2 and 3 have become disqualified, but Respondent No. 1 failed to perform his lawful duty. The learned counsel further argued that Article 69 of the Constitution of the Islamic Republic of Pakistan was not attracted in the instance case as the petitioner had not challenged the proceedings of assembly but invoked the jurisdiction of Deputy Speaker under Article 63(2), which he could exercise in absence of Speaker and as Speaker had also rendered himself disqualified by joining hands with Respondent No. 2, therefore; Deputy Speaker would take place of the Speaker for the purpose of forwarding reference to the Chief Election Commissioner.
On the other hand, the learned counsel for the Respondent No. 2 vehemently contended that the validity of proceedings in assembly could not be called in question in any Court as envisaged under Article 69 of the Constitution. He further contended that under Article 66(1) read with Article 127 of the Constitution any speech made or thing done by a member on the floor of assembly are immune from action in the Court, as such, petition is not maintainable. He further contended that the application of petitioner for making reference under Article 63(2) had already been rejected, as such; the petitioner has become infructuous. He further argued that before making reference to chief Election Commissioner, the Speaker or for that matter Deputy Speaker has to see as to whether the allegations leveled in the application against a member would amount to disqualify such member and the arguments that he had to refer the matter to Chief Election Commissioner without going into merits of the allegations, would be against the spirit of law.
Learned counsel for the Respondent No. 3 in addition to above arguments contended that under Rule 114 of the Rules of Procedure and Conduct of Business, 1974 the Speaker was bound to forward the resolution passed by assembly to the concerned authorities/departments.
We have carefully considered the contentions put forth by the parties' learned counsel in the light of relevant provisions of law. Before dealing with the question as to whether Speaker or for that matter Deputy Speaker was bound under the law to forward the reference to Chief Election Commission without application of mind, we would like to first attend the legal objections raised in respect of maintainability of petition in the light of Article 66 and 69 read with 127 of the Constitution.
Article 66 of the Constitution contemplates as under:--
"(1) Subject to the Constitution and to the rules of procedure of [Majlis-e-Shoora (Parliament)], there shall be freedom of speech in [Majis-e-Shoora (Parliament)] and no member shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in [Majlis-e-Shoora (Parliament)], and no person shall be so liable in respect of the publication by or under the authority of [Majlis-e-Shoora (Parliament)], of any report, paper, votes or proceedings."
From the very opening words of the Article it is crystal clear that freedom of speech in assembly is subject to the constitution and rules of procedure. Article 68 of the Constitution provides that no discussion shall take place in Majlis-e-Shoora with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties, thus; no discussion could be made with respect to conduct of a Judge of Supreme Court or High Court in the discharge of his duties by referring to Article 66 because such privilege is qualified one subject to other provisions of constitution including Articles 68 and 204 of the Constitution. Similarly; a member of Parliament or Provincial Assembly would render himself dis-qualified under Article 63 (1) (g) to remain member as such; if he propagates any opinion or acts in any manner prejudicial to the Ideology of Pakistan or the sovereignty integrity or security of Pakistan or morality or the maintenance of Public Order or defames or brings into ridicule the judiciary or the Armed Forces of Pakistan notwithstanding anything contained in Article 66 or 69 of the Constitution. Of course, proceedings of an assembly are protected under Article 69 but to enjoy that immunity, such proceedings must fall wholly within the privileges of Assembly. It is certainly not the legal right or privilege of Assembly to out step its own competence and jurisdiction laid down by the Constitution. Therefore; a question relating to the title of a person to be a Member of the House or to continue to sit therein is not a question pertaining to the internal proceedings of the house, but a question affecting the constitution of the House and not barred from inquiry by the Courts under Article 199. In this regard, we are fortified by the judgment reported in PLD 1970 SC 98, wherein it was observed as under:--
"In this view of the matter, while I am prepared to concede that all that fairly concerns the internal proceedings of the House relating to its proper business is immune from challenge in Courts, I am not in a position to agree that a question relating to the title of a person to be a Member of the House or to continue to sit therein is a question pertaining to the internal proceedings of the House. It is a question affecting the constitution of the House and, therefore, it is not a question which can possibly be barred from enquiry by the Courts under Article 111 of the Constitution. this is not a matter which certains either to the regulation of the procedure of the house or the conduct of its business or the maintenance of order in the Assembly or affecting any of its privilege. This is not a question, therefore, which, in my opinion, relates to the "demand proceedings" or an Assembly. Clause (1) of Article 111 bars the Courts only from enquiring into the validity of "proceedings in an Assembly" in the formal sense and nothing more.
In this connection I may also point out that the learned Attorney-General appearing in response to a notice issued to him under Order XLV, Rule 2 of the Supreme Court Rules, very frankly conceded that if total strangers or intruders, without any colour of right, had participated in the Assembly, that proceeding would not be a valid proceeding and the Courts would be entitled to question the validity of such a proceeding notwithstanding the provisions of Article 111. If this be so, then it is obvious that the bar created by Clause (1) of Article 111 notwithstanding the omission of the words "on the ground of any alleged irregularity of procedure", which occurred in Section 41(1) and 87(1) of the Government of India Act, 1935, was not an absolute bar. The mere omission of these words does not indicate that the scope of the immunity has been enlarged. The words of Article 89 (1) of the 1956 Constitution were to the same effect as the words of Article 111(1) of the Constitution of 1962, and they were considered in the case of Ahmed Saeed Kirmani, to have given immunity only in respect of matters falling fairly within the scope of the "internal proceedings" of the House relating to its proper business. If under those provisions the immunity was held to be confine only to internal proceedings, I see no reason to think that their scope has been widened in Article 111(1) of the 1962 Constitution."
"If a reference is submitted to him, he is not bound to forward/transmit the same, to the Chief Election Commissioner for decision forthwith. The Speaker has to apply his own mind judiciously to the allegations made in the reference, after fully taking into consideration the relevant provisions on the subject and then to decide as to whether "any question" in the nature of disqualification has "arisen" which may justify the making of reference to the Chief Election Commission."
In view of what have been discussed above, we are inclined to hold that on submission of application or reference it was for the Speaker and in case in hand for Deputy Speaker to judiciously determine as to whether a question as envisaged under Article 63 (2) of the Constitution with regard to disqualification of Respondents No. 2 and 3 had arisen and reference should be forwarded to the Chief Election Commissioner which decision had already been taken by him by declining to forward the reference which decision could not be aid to be without jurisdiction, as such; the petition being devoid of any merits is dismissed accordingly.
( ) ?????
PLJ 2006 Quetta 134
Present: Mehta Kailash Nath Kohli & Ahmad Khan Laghari, JJ.
SULEMAN and others--Petitioners
versus
GOVT. OF BALOCHISTAN through Collector Khuzidar & others--Respondents
C.P. No. 398, to 403 and 443 of 2003, decided on 12.6.2006.
(i) Land Revenue Act, 1894--
----Ss. 53, 116, Civil Procedure Code (V of 1908) S. 115--Enterance of names in Revenue Record--Appealand Revision--Proper remedy--Notification u/S. 116 of L.R.A.--Board of Revenue has been given powers relating to any order which is found on discovery of new facts, based on mistake or error affecting the root of the case--The powers as mentioned above appear to be very wide and the legislature in their wisdom allowed the Full Board to examine even new grounds. [P. ] A
(ii) West of Pakistan Board of Revenue Act, 1957--
----S. 8--Land Revenue Act, 1894, S. 116--Notificaiton--Incproration of names in the revenue record--Limitaiton question of--Right of Review--There was no notification existence, authorising the settlement authorities to make settlement entries--As regards the powers of review, it is settled one that the Board has to power and case make review in the Revision Petition, the earlier order, obtained on the basis of false document--So far as the question of limitation is concerned, it does not run against void order--There being no illegality, irregularity in the impugned order of Full Board of Revenue, the High Court did not interfere therein and dismissed the petition accordingly. [P. ] B & C
2000 MLD 2015, 2002 SCMR 122, ref.
Mr. Muhammad Riaz Ahmed, Advocate for Petitioners.
Mr. Shamsuddin, Advocate Astt. A.G. for Respondent.
Date of hearing : 6.6.2006
Judgment
Mehta Kailash Nath Kohli, J.--This common order shall dispose of Constitution Petitions Nos. 398/2003, 399/2003, 400/2003, 401/2003, 402/2003, 403/2003 and 443/2003.
"Therefore I consider the arguments/documents produced by the private respondents un-acceptable as being false and order that the appeal mentioned at Sr. No. 1 to 3, 5 and 6 accepted and all the lands bearing Khasra 1 to 5, 7, 9, 10, 12, 13, 21, 26, 27, 28, 29, 30, 31, 46, 47, 50, 54, 56, 57 and 59 which are absolutely un-cultivatable, ordered to be entered in the name of Prov. Government. However since the representative of the Provincial Government admitted tha the cultivable lands around have been given to the tenants on ownership basis therefore Khasra Nos. 6, 14, 15, 16, 17 and 39 which are mentioned in record as Banjar Qadeem (uncultivated since long but cultivable) are allowed to remain entered in the name of the tenants in possession on satisfaction of the Collector."
"For the reasons stated above, the Review Applications are granted and orders dated 25.7.1993, 20.7.1994 and 11.1.1997 by the Settlement Officer, Kalat Davison, Commissioner Kalat Division and the MBR-III are set aside. A direction is also given to the Settlement Officer to record necessary remarks on the record prepared in 1992 with regard to its illegality. Secondly, whenever, the record is called for by a Court, the official concerned should inform the Court concerned about its illegality."
Against aforementioned judgment passed by
Full Board Constitution Petitions No. 816/1999 to 820/1999 and 820/1999 were filed. Division Bench of this Court was pleased to set aside the order of the
Member Board of Revenue Balochistan on 21.8.1999 and remanded the case to Full
Board of Revenue with directions to decide the question of limitation as well as applicability of Section 116 of the Land Revenue Act. It was also mentioned tha the settlement notified in Tehsil Khuzdar in the year 1976 or 1981 were not continuing process and new notification was required to be made or otherwise.
The learned Full Board of Revenue after remand of the case held the impugned order was void on account of non-issuance of notification u/s 116 of Land
Revenue Act. The learned Board also came to the conclusion that the order was void and delay of 45 days was accordingly held to be conconded as it does not run against void order. The learned Board of Revenue while examining the case came to the conclusion (i) during the settlement started in the year 1971 Mouza of Sorgaz Janubi consisting of GHAR MUMKIN RAGHA',GHARI MUMKIN GHUNDI' and
BANJAR KADEEM' were left unmeasured, (ii) second revision was taken place during year 1975-76,(ii) during the year 1977 vide Notification dated 18.2.1977 all tenants of the State land who were shown as occupancy tenants and were directed to be entered as owners, (iv) in year 1981-82 a special revision was directed relating to 26 mouzas located within 5 miles of Khuzdar town for the purposes of revision. From perusal of order it appears that in order to establish
Cantonment area the Army Authorities had approached the local administration for transfer of unmeasured government land to Khuzdar Cantonment and thus in order to examine said aspect of the matter and to make recommendations local administration of Khuzdar asked the settlement officer for measurement. The settlement which was carried out during the year 1971 till 1981 having no nexus and had come to end with the remarks that the said disputed land is aGHAIR
MUMKIN RAGHA', GHAIR MUMKIN GHUNDI' and `BANJAR KADEEM' need not required to be measured. The purposes of notification issued stood achieved and it was in year 1992 the local administration had asked the settlement authorities to measure the land for the purposes of inclusion it in Cantonment area measuring thereby that there was no notification in existence u/s 116 of Land Revenue Act in the year 1992 whereby settlement authorities had the jurisdiction to record entries pursuant to settlement process. The above judgment was challenged before this
Court, petitions were admitted for regular hearing and notices were directed to the respondents. The Board of Revenue has filed parawise comments and has reiterated the same version.
Mr. Muhammad Riaz Ahmed, Advocate appeared on behalf of the petitioners, while Mr. Shamsuddin, Advocate appeared on behalf of Muhammad Hassan, who is also petitioner in CP No. 433 of 2003.
Mr. Muhammad Riaz Ahmed, Advocate stated that there was no floating error warranting interference by the Board of Revenue as such orders made by Full Board of Revenue having exercised of authority beyond their jurisdiction. It was further contended that the observations of the learned Board condoning the delay in of review application was not proper and legal. It was further contended that order of Board of Revenue was not set aside as such authorities had no jurisdiction to recall revenue entires.
On the other hand Mr. Aminuddin Bazai, learned Additional Advocate General has supported the judgments stating that there was no notification in existence in the year 1992 allowing settlement authorities to incorporate the names of the petitioners as owners in the property. It was further contended that the orders were void, ab initio and thus petitioner cannot take advantage of ill gotten gains and the Board had rightly condoned the delay.
We have considered the arguments advanced by the learned counsel for the parties and perused the record. The right of review has been provided by Section 8 of West Pakistan Board of Revenue Act 1957 is reproduced herein below:--
"8. Review of order by the Board.--(1) Any person considering himself aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made, or on account of some mistake or error apparent on the fae of the record or for any other sufficient reason desires to obtain a review of the decree passed or order made against him may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require.
(2) Application for a review of a decree on under Subsection (1) shall be made within ninety days from the date of that decree or order."
"... ... .... It may not be out of place to mention here that admittedly the power of review are not available under West Pakistan Land Revenue Act, 1967 (XVII of 1967) but is available under Act XI of 1957. Words `for any other sufficient reason' are capable enough to meet all sorts of such eventualities as employed in Section 8 of Act XI of 1957. To be read ejusdem generis with words preceding same and laying down grounds for interference in view. We are com a a service out where sufficient reasons are available such review can be made. In this regard reference can be made to PLD 1979 Note 82 at p. 57. It hardly needs any elaboration and as mentioned hereinabove that expression "for any other sufficient reason" appearing in Section 8 is capable enough to re-empower Board of Revenue to rectify the errors committed in a revision order (1989 MLD 2876)."
"7. Admittedly the appeals were filed with a delay of 45 days but in view of the chequered history of the case and order of the executing Court which is not only coram non-judice but nullity in the eyes of law and thus, the delay has rightly been condoned because under the garb of limitation blanket authority cannot be given to executing Courts to modify the decrees passed by the appellate Courts which would not only be contemptuous but amounts to misconduct."
For the reasons stated above we see no merits in the petition which is accordingly dismissed.
( ) ??????
PLJ 2006 Quetta 139
Present: Akhtar Zaman Malghani & Ahmad Khan Laghari, JJ.
ABDUL GHAFOOR & 6 others--Petitioners
versus
B.I.S.E. Quetta, through to Chairman & 3 others--Respondents
C.P. No. 243 of 2004, decided on 29.12.2005.
(i) Board of Intermediate and Secondary Education Ordinance, 1977 (XI of 1977)--
----Section 20--Board of Intermediate & Secondary Education Service Regulation, 1991--Regulation 11--Balochistan Servant (E 7 D) Rules, 1992--Rule 16--Applicability of Civil Servants Act, 1974 to the employees of Board--Held : Neither Civil Servant Act, 1974 nor any other rules made there under except the rules mentioned in Regulation 11 are applicable to the employees of Board. [P. ] A
(ii) Board of Intermediate & Secondary Education Ordinance, 1977 (XI of 1997)--
----Section 2(a), 6, 20 and 33(4)--Board of Intermediate & Secondary Education Services Regulations, 1991--Regulation 11(c)--Constitution of Pakistan, 1973--Article 199--Respondent No. 4, brother of Provincial Minister of Education, working as Librarian in (BS-16) in Govt. Inter College was transferred and posted as Assistant Controller (B-17) in the Board, on deputation for three years--Notification challenged to by petitioners/employees of Board through constitutional petition, on the ground that appointment was made against the provisions of Ordinance and Regulations--Validity--Admittedly Respondent No. 4 was a government employee and in order to transfer his services to the Board the authorities should have adhered to provisions of Ordinance, 1977 and regulation made thereunder but the perusal of impugned Notification shows that the same was issued by the Secretary Education--The approval for his deputation was granted by the Secretary S & GAD and not by the Government--It was the Board which was competent to approve deputation of Respondent No. 4 and not the Secretary S & GAD--Undisputedly the Board (members of Board stated in detail) has not approved the deputation and only chairman who cannot be presumed to be the Board has recommended (not approved) for deputation nor any Notification has been placed on record which could show that the Board has delegated its power to chairman Board--Under Section 33(4) appointment can be made only for two years and not more than that whereas notification speaks about deputation for three years, as such on this score also notification so issued was illegal and without lawful authority--Notification declared to have been passed without lawful authority and of no legal effect in circumstances. [P. ] B, C, D, E, F & H
(iii) Constitution of Pakistan, 1973--
----Article 199--Aggrieved person--Petition challenged notification whereby Respondent No. 4 was transferred and posted in the Board of Intermediate Secondary Education Quetta at Assistant Controller--Petitiones who are employees of Board are not aggrieved persons--Contention of respondents of--Held : The petitioners are employees of Board and any illegal appointment made in the Board would certainly effect their rights and privileges--Petitioners are aggrieved persons with the meaning of Article 199 of the Constitution--Objection taken in this regard was held to be without any substance. [P. ] G
Mr. W.N. Kehli, Advocate for the Petitioners.
Mr. Khadim Hussain, Mr. Sundar Dass, & Mr. Amanullah Tareen, Assistant A.G. for Respondents No. 2 & 3.
Mr. Mehmood Khokhar, Advocate for Respondent No. 4.
Date of hearing : 8.12.2005.
Judgment
The following reliefs have been claimed in the instant Constitutional Petition:--
"(a) That the order dated 29.4.2004 passed by Respondent No. 2 by transferring and posting the Respondent No. 4 as Assistant Controller (B-17) in Balochistan B.I.S.E Quetta on deputation initially for a period of three years is illegal unlawful and without jurisdiction and deserves to be declared as such.
(b) A further direction to the Respondents No. 1 to 3 to fill the post of Assistant Controller by promotion from the next lower grade on the basis of seniority cum merits without restriction of qualification in accordance with the Balochistan B.I.S.E Ordinance, 1977 and the B.I.S.E Employees Service Regulations, 1991.
(c) Any other relief which may please be deemed fit and proper in the circumstances of the case may also be awarded to the petitioners.
(d) Cost of the petition".
Briefly stated, facts of the case are that the petitioners are employees of Board of Intermediate and Secondary Education Balochistan, Quetta. It, is grievance of the petitioner that the Respondent No. 4 who was previously working as Librarian in B-16 in Government Inter College Muslim Bagh was transferred and posted as Assistant Controller B-17 in the Board on deputation for a period of 3 years against the provisions of BISE Ordinance, 1977 and BISE Employees Service Regulations 1991 as according to the relevant laws only Chairman, Secretary, Controller of Examination can be appointed in the BISE whereas for the remaining posts appointments are to be made in accordance with the provisions of Ordinance and Regulations made thereunder but in order of Provincial Minister for Education, his services were transferred to the Board in contravention of Ordinance and Regulations.
We have heard the learned counsel for the parties. It is vehemently contended by the learned counsel that the deputation of Respondent No. 4 and this appointment as Assistant Controller in the Board was illegal being contrary to Ordinance ad Regulations as the Board is autonomous body and rules of deputation applicable to Government Servant are not made applicable to the employees of Board. He further contended that the post of Assistant Controller was to be filled in from, the employees on the basis of seniority cum merit basis but on account of illegal appointment of Respondent No. 4 the petitioners have been deprived from their legal rights. According to him even the deputation aws not made by the Government of Balochistan being Controlling Authority as is evident from the copy of summary produced in the Court which shows that the approval was given by Secretary S&GAD who has no concern with the Board or Board Employees and the powers exercised by him in the garb of Notification issued in respect of Government Employees were without jurisdiction and without lawful authority.
On the other hand, the learned counsel for the Respondent No. 4 vehemently contended that the petitioners are not aggrieved persons within the meaning of Article-199 of the Constitution of Pakistan, as such; they cannot maintain instant constitutional petition because the post of Assistant Controller, according to the Service Regulations of the Board ar to be filled in through promotion and initial appointment in proportion of 2/3rd and 1/3rd respectively. As far as promotion quota is concerned, that has been exhausted and remaining posts were to be filled in by initial recruitment. He further contended that the government has power under Section-33 (4) of BISE Ordinance, 1977 to appoint any person to the post of Assistant Controller/Assistant Secretary.
Learned counsel for the Respondent No. 1 supplementing arguments of the learned counsel for the Respondent No. 4 contended that under Section 33(4) of the BISE Ordinance, Controlling Authority is empowered to create posts or appoint the First Chairman, First Secretary, First Controller of Examination and any other officer whereas under Section 12 the government is Controlling Authority of the Board, therefore, the Respondent No. 4 was rightly and legally posted as Assistant Controller.
The learned Assistant A.G contended that according to the Notification dated 17.10.2001 issued by the Government of Balochistan, Secretary S&GAD is empowered to approve deputation of any government servant. He further stated that deputation of Respondent No. 4 was approved by Secretary, S&GAD who was competent authority in the matter, as such; no illegally has been committed for transfer of service of Respondent No. 4 to the Board and the petition being without merits is liable to be dismissed.
We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the relevant law, regulations of Board, Balochistan Establishment Manual copy whereof was placed on record by Deputy Secretary S&GAD. IT may be seen that the Board was set up under BISE Ordinance-IX of 1977 and according to Section 3 the Board is a body corporate. Section 11 empowers the Board to appoint such officers are staff as it may consider necessary. Similarly under Section 12 of the Ordinance Government of Balochistan is Controlling Authority of the Board whereas Board has been empowered under Section 20 of the Ordinance to make any regulation subject to approval of Government of Balochistan. The Board under the power conferred upon it by virtue of Section 20 framed regulations called Board of Intermediate and Secondary Education Services Regulations, 1991 with the approval of government. Perusal of regulation 11 shows that the following rules as amended from time to time were made applicable mutatis mutandi to the employees of the Board:--
(i) The Balochistan Civil Servant (Efficiency and Discipline) Rules, 1983.
(ii) Revised Leave Rules for Civil Servants Balochistan Government, 1984.
(iii) Balochistan Government Servants (Conduct) Rules, 1979.
(iv) Government of Balochistan Pension Rules.
(v) Balochistan Civil Servant (Appeals) Rules, 1983.
It has been further stated in the said Regulation that any reference to the Secretary of the government shall be construed to be reference to the Board. It may further be observed that the Balochistan Civil Servant (E&D) Rules, 1983 were repealed under Rule 16 of the Balochistan Civil Servant (E&D) Rules, 1992 which were not adopted or incorporated in the Regulations 1991 by the Board nor any approval of the Government was obtained in this behalf as provided by Section 20 of the Ordinance XI of 1977, therefore, the same could not be read as part and parcel of regulations, 1991 by reference as already held by this Court in C.P. No. 52/2000 and we have been informed that the said judgment has been upheld by the Hon'ble Supreme Court by refusing to grant leave to appeal, therefore, it is evident that neither Civil Servant Act, 1974 nor any other rules made thereunder except the rules mentioned in Regulation 11 are applicable to the employees of Board. Admittedly Respondent No. 4 was a government employee and in order to transfer his services to the Board the authorities should have adhered to the provisions of Ordinance, 1977 and regulations made thereunder but the perusal of impugned Notification shows that the same was issued by the Secretary Education which reads as under:--
"NO. SO (Academic) 5-1/2002 4594-99/-with the approval of the competent authority, Mr. Abdul Qahir, Librarian (B-16), Government Inter College, Muslim bagh is hereby transferred and posted as Assistant Controller (B-17) in Balochistan Intermediate and Secondary Education, Quetta on deputation basis initially for a period of three years.
The terms and condition of his deputation will be stated later on."
"Notwithstanding anything contrary in the Ordinance the Controlling Authority may create posts or may appoint the first Chairman, the first Secretary, the first Controller of Examinations and any other officer for a period not exceeding two years".
It is abundantly clear from the above reproduced provisions even if it is presumed that the same are applicable such posting/appointment can be made only for two years and not more than that, whereas undisputedly the Notification speaks about deputation for three years, as such; on this score also Notification so issued was illegal and without lawful authority.
As regards objection of the learned counsel with regard to maintainability of petition on the ground that the petitioners are not aggrieved persons, it may be seen that the petitioners are employees of Board and any illegal appointment made in the Board would certainly effect their rights and privileges which is also evident from the reply of Respondent No. 1 dated 23.11.2005 wherein it has been stated that the cases of promotion of three petitioners namely Abdul Ghafoor, Mehran Khan and Jan Muhammad Senior superintendents to Assistant Controller have been recommended by Appointment Committee according to seniority cum fitness against the vacant posts and Notification to this effect will be shortly issued which shows that the stand taken in the para wise comments that all the vacancies of promotion quota have been filled in is not correct and at the time of filing of this petition there were certain vacancies available to be filled in from promotion quota, as such; petitioners are aggrieved persons within the meaning of Article 199 of the Constitution of Pakistan and objection taken in this regard is without any substance.
For the fore going reasons we are inclined to declare Notification dated lawful authority and of no legal effect. Parties are left to bear their own costs.
(R.A.) Writ accepted.
PLJ 2006 SC 1
[Appellate Jurisdiction]
Present: Nazim Hussain Siddiqui C.J; Javed Iqbal and Abdul Hameed Dogar, JJ.
KARACHI INTERNATIONAL CONTAINER TERMINAL LTD. through its FINANCIAL CONTROLLER & COMPANY SECRETARY, KARACHI--Petitioner
versus
GOVERNMENT OF SINDH through SECRETARY EXCISE & TAXATION SINDH, KARACHI and 2 others--Respondents
C.P. No. 856-K of 2004, decided on 5.5.2005.
(On appeal from Judgment of High Court of Sindh, Karachi, dated 4.11.2004, passed in C.P.No. D-1042 of 2004)
(i) Sindh Urban Immovable Property Act, 1958--
----S. 14--Exemption from property tax--Essentials--Ownership is decisive factor for claiming exemption from property tax and not location of the same--Competency to levy tax by Provincial Government cannot be questioned merely on the ground that the same was received by some other authority. [P. 8] A
(ii) Sindh Urban Immovable Property Act, 1958--
----S. 14--New plea raised before Supreme Court which was never raised before High Court--Notification dated 29th January 1985, was never placed before High Court--Question of applicability of notification in question, should have been decided at first instance by High Court--Notification in question, however, would have no bearing on merits of case. [Pp. 9 & 10] B
(iii) Sindh Urban Immovable Property Act, 1958--
----S. 14--Constitution of Pakistan (1973), Art. 185--Liability to pay tax--Karachi Port Trust being owner of Property was liable to pay tax at first instance till prove otherwise--Failure to pay tax would necessitate issuance of notice for recovery of property tax and thereafter, on non-compliance of such notice further action for attachment can be taken pursuant to provision of S. 16 of the Act of 1958--Petitioner, however, categorically stated that he was willing to make payment of property tax without prejudice to his legal rights to further pursuance the matter subject to adjustment with Karachi Port Trust--Such statement on behalf of petitioner was accepted which otherwise was not opposed by respondents--Property tax as assessed by Assessing authority was to be deposited within sixty days subject to adjustment with Karachi Port Trust and without prejudice to legal rights of petitioner to further pursue the matter before appropriate forum. [P. 12] C
PLD 1975 SC 37 and PLD 1975 Lahore 23.
Syed Sharif-ud-Din Pirzada, Sr. ASC, Mr. Aziz A. Sheikh, ASC and Rana Waqar Ahmad, Advocate for Petitioner.
Mr. Raja Muhammad Irshad, Dy. A.G. on Court Notice.
Mr. Muhammad Sarwar Khan, Addl. A.G. Sindh & Mr. Shamir Ali, AETQ for Respondents Nos. 1 and 2.
Mr. Nafees Siddiqui, ASC for Respondent No. 3.
Dates of hearing : 3.1.2005 & 4.1.2005.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 4.11.2004 whereby Constitutional petition preferred on behalf of petitioner has been dismissed.
Heard Syed Sharifuddin Pirzada, learned Sr. ASC, Mr. Aziz A. Sheikh, learned ASC on behalf of petitioner, Raja Muhammad Irshad, learned Deputy Attorney General, on Court notice, Mr. Muhammad Sarwar Khan, learned Additional Advocate-General, Sindh, on behalf of Respondents Nos. 1 & 2 and Mr. M. Nafees Siddiqui, learned ASC on behalf of Respondent No. 3, at length, scanned the entire record and perused the judgment impugned carefully.
There is no denying the fact that petitioner is lessee of the Karachi Port Trust (hereinafter referred to as "K.P.T.") qua Container Terminal Berth Nos. 28-30 located at Dockyard Road, Karachi, for a period of twenty years. The dispute relates to the liability of property tax and according to the petitioner since no rent was being paid for the utilization of land, hence the question of levying and payment of property tax does not arise. In our considered view, the controversy can only be resolved by examining the Indenture of Lease and Implementation Agreement. After having perused the Indenture of Lease with the eminent assistance of learned counsel, we are of the view that the petitioner agreed to pay the average annual rent in the tune of Rs. 61430189/- to K.P.T. pursuant to Clause 2 of the Indenture of Lease which is reproduced herein below for ready reference:--
"Article 14.3 Terms of Lease agreement.
The Lease Agreement shall, inter alia, incorporate provisions to the effect that:--
(a) ..........................................
(b) ..........................................
(c) TOC shall be responsible for the payment of all taxes, duties surcharge and levies if and when levied by any government agency/authorities, whether provincial or federal."
"Article 18 Taxes
All present and future federal, provincial, municipal or other lawful income and other taxes, duties, levies other impositions whatsoever applicable to TOC, its Contractors, sub-contractors, the Terminal, Employees and dock labors, or TOC's other assets shall be paid by TOC, its Contractors, sub-contractors their employees and dock labor, respectively as the case may be in accordance with the requirements of laws of Pakistan. KPT will not assume any tax liability, whatsoever on behalf of TOC, nor will TOC assume any tax liability on behalf of KPT."
Clauses 2 and 3 of the Indenture of lease
"2. The KICT shall pay to KPT as Handing, Marshalling and Storage charges for containers/other specified cargo (hereinafter referred to as HMS charges) at a unit rate of Rs. 292/- (Rupees two hundred and ninety two only) per square meter per annum payable within the first week of July each year. The HMS charges will be subject to an indexation upto of 15% escalation every three years in accordance with Article 8.2.2. of the Implementation Agreement. The average annual rent comes to Rs. 61,430,189/-.
The KICT shall pay all rates, taxes and outgoing whatsoever now levied on or that may during the term of this LEASE become legally due and levied in respect of said PREMISES TO KPT, or not (herein above collectively referred to as any agency) as per Article 14.3(c) of the Implementation Agreement."
A bare perusal of Indenture of Lease would reveal that an agreement has been executed qua "rent" which cannot be equated to that of "charges" for handling, marshalling and storage for the containers and other specified cargo. The said view is strictly in consonance with the provisions as contained in Clause 2 of the Indenture of Lease which inter alia provides that "the KICT shall pay to KPT as Handing, Marshalling and Storage charges for containers/other specified cargo (hereinafter referred to as HMS charges) at a unit rate of Rs. 292/- (Rupees two hundred and ninety two only) per square meter per annum payable within the first week of July each year. The HMS charges will be subject to an indexation upto of 15% escalation every three years in accordance with Article 8.2.2. of the Implementation Agreement. The average annual rent comes to Rs. 61,430,189/-." There can be no other interpretation of Article 14.3.(c) and para 18 of the Implementation Agreement and Clauses 2 and 3 of the Indenture of Lease from whatever angle, it may be examined that the petitioner is liable for all taxes enumerated therein irrespective of the fact whether it is levied by the Provincial Government, Federal Government or any other Autonomous Body. It must not be lost sight of that "rent" & "tax" are neither interchangeable nor synonymous terms. Besides that the petitioner has agreed to make payment of all taxes as well as rent who cannot be absolved from its responsibility under the garb of farfetched interpretation of relevant clauses of the agreement having no reasoning or logic at all. It is worth mentioning that pursuant to implementation agreement, Indenture of Lease was executed between the petitioner and that of respondents which clearly stipulates that all taxes, rates and cesses including the Municipal Taxes already in existence or levied during the terms of this lease, the lessee (petitioner) shall be liable to pay the same. In this regard reference can safely be made to Clause 3 of the Indenture of Lease. There is no doubt that Terminal Berth Nos. 28-30 are owned by K.P.T. and rented out for the purpose of income and profit on rent basis for handling, marshalling and storage in respect of site and commercial operation on different rates as enumerated in the implementation agreement executed between the petitioner and that of K.P.T., hence, as per the Indenture of Lease and Implementation Agreement, the petitioner is liable for the property tax to be assessed by the concerned department. The question as to whether particular property belongs to the Central Government and thus exempted from the property tax, cannot be decided by the High Court and such determination falls within the jurisdictional domain of the concerned "Assessing Authority" by whom the exemption from property tax being question of facts shall be determined on the basis of relevant documents and record. The question of exemption given by the Constitution of the Islamic Republic of Pakistan to the property of Central Government has been discussed in case titled Pakistan vs. Province of Punjab (PLD 1975 SC 37) relevant portion whereof is reproduced herein below for ready reference:--
"The question that has to be considered next is as to the validity of the tax itself. Now, the tax sought to be levied by the Urban Immovable Property Tax Act is a tax on the annual value of buildings and lands in a rating area specified by the Government by a notification. Taxes on lands and buildings come within items 75 of the Fifth Schedule to the Constitution of 1956, and with regard to these, the Provincial Legislatures had by reason of the provisions of Clause (3) of Article 106 of the said Constitution exclusive power to make laws for the provinces or any part thereof. The taxation was accordingly validly imposed by a competent Legislature in the proper exercise of its powers. The only question was whether a cantonment area formed under Article 106 of the Constitution a part of the Province which made the law. If it did, then the law was applicable there; but, on the other hand, if a cantonment area is an island within a Province in respect of which the Provincial Legislatures can not at all legislate or is an area which is specifically exempted from the operation of such legislation by anything in the Constitution, then the law will have no application at all.
Even in 1940, under the Government of India Act of 1935, taxes on lands and buildings came within item 42 of the Provincial Legislative List in the Seventh Schedule, with regard to which the Provincial Legislatures had, under Section 100, exclusive power to make laws for the Province or any part thereof. The only exemption granted under Section 154 of the Government of India Act, 1935, was in these terms:--
"Property vested in His Majesty for purposes of the Government of the Federation shall, save in so far as any Federal law may otherwise provide, be exempt from all taxes imposed by, or by any authority within, a Province."
This exemption was continued under the 1956 Constitution by clause (2) of Article 112 which provided:--
"Property vested in the Federal Government shall, save in so far as an Act of Parliament may otherwise provide, be exempt from all taxes imposed by, or by any authority within, a Province."
Similar exemption was given to the property of the Central Government by Article 137 of the 1962 Constitution. In the Interim Constitution of 1972, taxes on lands on lands and buildings continued to be a subject in the Provincial Legislature List within the exclusive competence of the Provincial Legislature but Article 167 exempted the property of the Federal Government from taxation under any Provincial Law. In the permanent Constitution of 1973, however, taxes on lands and buildings are not enumerated in either of the two lists given in the Fourth Schedule and, therefore, by reason of the provisions of Clause (c) of Article 142, the Provincial Assembly has exclusive powers to make laws with respect of any matter not enumerated in either of the lists. Article 165 of this Constitution, however, repeats the exemption granted to the Federal Government in respect of its property or income from taxation under any Act of the Provincial Assembly.
The position, therefore, that emerges is that, under all the Constitutional provisions, the property of the Central Government is exempted from taxation, and it is the Federal Legislature which has the power to legislate in respect of a cantonment are but with regard to certain matters only.
According to the Interim Constitution of 1972 and the permanent Constitution of 1973, the legislature field covers only Local Self-Government in such area; the Constitution and powers within such areas of cantonment authorities, the regulation of housing accommodation in such areas and the delimination of such areas. Under the 1956 Constitution also, the Federal Legislature had power to legislate with regard to "delimitation of cantonment areas; local self-Government in cantonment areas; constitution, powers and functions, within such areas, of cantonment authorities; control of house accommodation (including control of rents) in such areas". Under the 1935 Act, the power given to the Federal Legislature was to legislate for "local Self-Government in cantonment areas, the constitution and powers within such areas of cantonment authorities, the regulation of house accommodation in such areas, and the delimitation of such areas".
In the 1962 Constitution, however, the powers are a little wider. It reads as follows:--
"(e) cantonment areas, including--
(i) the delimitation of such areas;
(ii) local self-Government in such areas, the constitution of local authorities for such areas and the functions and powers of such authorities; and
(iii) the control of housing accommodation (including control of rents) in such areas."
Nevertheless, if we read the legislative lists in the manner that they should be read, namely, that if there is a specific provision for a special subject in a particular item of a particular list, then that subject falls within that item of the said list and not under any general item. Since taxation on lands and buildings is specifically mentioned in the Provincial Legislative List as a separate item of legislation, legislation in respect of taxes on lands and buildings comes within the competence of the Provincial Legislature and the law so made would apply in any part of the Province making the law, unless the area sought to be excluded has been specifically exempted under the law or under any constitutional provision. I have not been able to discover any thing in any constitution or any law to show that a cantonment area is not to be included within the territorial limits of a Province in which it is situated. In the circumstances, I have come to the conclusion that the claim of the Central Government that all lands and buildings included in the cantonment area are exempt from payment of the Urban Immovable Property Tax imposed by the Provincial Legislatures of the Provinces of Pakistan is not tenable. The exemption given by the Constitution to the property of the Central Government will of course be available, and it has been made available even under the provisions of the Provincial Acts themselves. What is the property of the Central Government is a different matter and will have to be decided in each case with reference to the relevant documents. If the property is Government property which has been made over to the cantonment Board or has been leased to the Cantonment Board, then it would be entitled to the exemption granted by the Cantonment as being property vested in the Central Government. The mere fact that a property is situated in the cantonment area does not however, make it a property of the Central Government, because, there may well be other kinds of property vested in the Board which is not property vested in the Central Government.
The other properties of the Boards which are used for public, educational or charitable purposes will also be entitled to the exemption given by the Provincial Taxation Acts. The question as to whether a particular property is exempt under these Acts will be a question of fact to be considered by the Assessing Authority in each case. We regret, therefore, our inability to grant the declaration prayed for by the Central Government in the terms indicated. Since it would neither be possible nor desirable for this Court to get into each particular item of property and to determine its liability, this must be left to be done by the Assessing Authorities concerned with reference to the facts of each individual property in the light of the observations herein made."
It is not the location of the property ipso facto which makes it entitled for exemption but it is the ownership which will be decisive factor for claiming such exemption as it cannot be decided in vacuum and it will have to be examined that how the ownership of such property was devolved upon the Central Government and whether such claim has any legal sanctity or otherwise? The competency to levy the tax by the Provincial Government cannot be questioned merely on the ground that it was received by some other authority. In this regard reference can be made to the case titled Ashfaq-ur-Rehman Khan v. The Government of the Punjab and others (PLD 1975 Lah. 23)".
We have carefully examined all the respective contentions agitated on behalf of the parties in the light of relevant provisions of Urban Immovable Property Act 1958 and record of the case. The case of petitioner in brief is that the Government of Sindh (Respondent No. 1) and the Director General, Excise & Taxation (Respondent No. 2) have no locus standi and competency for the issuance of notice qua recovery of the property tax under Section 14 of the Sindh Immovable Property Act, 1958, without having completed the prerequisite conditions as enumerated in Section 16 of the said Act which are mandatory in nature and that such notice could not have been issued and more so, in view of Suit No. 1355 of 2003 pending adjudication before the learned High Court involving the same question of facts and law preferred on behalf of K.P.T. and the question of liability of property tax is yet to be determined. It is also the case of petitioner that the provisions as contained in Section 14 of the Act cannot be made applicable in absence of the relationship of tenant and landlord between the parties and the Indenture of Lease does not provide for any rent and being lessee, the question of payment of property tax does not arise which is the exclusive responsibility of K.P.T. being owner. The plea of the Government of Sindh and the Director General Excise and Taxation (Respondents Nos. 1 & 2) is that the property tax was due and it could have been recovered by exercising powers as conferred upon them under Sections 14 and 16 of the Act. It is also their case that every attempt has been made by the petitioner to avoid his liability for payment of property tax by exploiting various provisions of the Act and for the last so many years, not a single penny has been paid which speaks a volume about their conduct.
The case of K.P.T. revolves around the provisions as contained in Clause 14.3.(c), Clause 18 of the implementation of agreement executed between the parties on 6.1.1996 and Clauses 2 and 3 of the Indenture of Lease. The main plea of K.P.T. is that being lessee, it is obligatory for the petitioner to make payment of the property tax pursuant to the provisions as contained in Section 14 of the Act. The K.P.T. had also filed a suit seeking declaration that the petitioner was responsible to make payment of the property tax and in case of failure, it could have been recovered from the lessee by Taxation Department, Government of Sindh by invocation of the provisions as contained in Sections 14 and 16 of the Act.
Syed Sharifuddin Pirzada, learned Sr. ASC on behalf of petitioner has led much stress on the point that no such tax could have been levied by the Provincial Government as the matter falls within the jurisdictional domain of the Federal Government pursuant to Entry No. 21 of the 4th Schedule of the Constitution of the Islamic Republic of Pakistan. In order to support the said plea, reference has also been made to SRO No. 6(KE)/85 which is reproduced herein below for ready reference:--
"MINISTRY OF COMMUNICATIONS
(Ports and Shipping Wing)
NOTIFICATION
Karachi, the 29th January, 1985
S.R.O. 6(KE)/85:
In pursuance of Section 43B of Karachi Port Trust Act, 1886 (Bombay Act, VI of 1886), It is hereby notified that the following further amendment has been made by the Board of Trustees of the Port of Karachi, with the sanction of the Federal Government, in the Karachi Port Trust Scales of Tolls, Dues, Rates and Charges framed by the said Board under Sections 43 and 43A of the said Act, namely:--
In the aforesaid scales of Tolls, Dues, Rates and Charges in Table U, in Scale `A', under the sub-heading "EXCEPTIONS", after item (i) and the entries relating thereto, the following new item and entries relating thereto shall be added, namely:--
"(i) Container Charges 10 days' Rs. 215 per square
(handling marshaling dwell time meter per annum
and storage). levied against con-
container operators)."
(F.No. P. III-3(5)/80-PTC)
M. NAEEM BEG
S.BT
Commodore P.N.
Joint Secretary and Director General."
It is worth mentioning that it is altogether a new plea which was never argued before the learned High Court and besides that the above reproduced SRO was never placed before the learned High Court. The question of its applicability should have been declared at first instance by the learned High Court. Be as it may, the above SOR would have no bearing on the merits of the case because the agreement executed between the petitioner and that of K.P.T. was not simply for handling, marshalling and storage charges. The controversy qua levying of such tax has already been set at naught by this Court in PLD 1975 SC 37.
Syed Sharifuddin Pirzada, learned Sr. ASC on behalf of petitioner has also taken the plea of res judicata by referring judgment of the High Court of Sindh, Karachi dated 29.8.2002, concluding portion whereof is reproduced herein below for ready reference:--
"10. We are therefore of the opinion that the taxes under the Act can only be recovered from the owner of the building. Any agreement as to the payment of the tax between the party in occupation and the owner is an internal matter between them. In this regard reliance can be made to Trustees of Port of Karachi v. Secretary Excise (1990 CLC 92). We would consequently allow this petition only to the extent that the impugned demand has been wrongly addressed to the petitioner and would therefore set aside the same on this basis alone."
A bare perusal of the above-reproduced para would reveal that only a limited question was adverted to and decided by the learned High Court. The provisions as contained in Sections 14 & 16 of the Act and Implementation Agreement executed between K.P.T. and that of petitioner and Indenture of Lease were never discussed in the above suit. The petitioner had not challenged the competency of the Provincial Government for levying such tax but it was urged that the property was under the control of Federal Government by virtue of Sections 70 and 82 of K.P.T. Act, 1886, which point was never urged in the second round of litigation (see arguments of Mr. Aziz A. Shaikh, learned ASC on behalf of petitioner in C.P. No. D-1042 of 2004) and the only plea raised was that pursuant to implementation agreement and Indenture of Lease dated 1.10.1996, the petitioner was not required to make payment of property tax being a lessee for twenty years. In fact a deliberate attempt appears to have been made by the petitioner for the evasion of property tax. It is amazing that the assessment being unfair was challenged under Section 8 of the Act and without waiting for decision of the competent authority and availing departmental remedies, the Constitutional jurisdiction of the learned High Court was invoked. It is really difficult to reconcile such a contradictory mechanism which was evolved to get itself absolved from the liability of payment of property tax. It does not depend upon the whims and wishes of the petitioner to seek relief in piece meal from different forums simultaneously.
We have also observed that there are various controversial questions which cannot be determined by the High Court while exercising its constitutional jurisdiction as conferred upon it under Article 199 of the Constitution of the Islamic Republic of Pakistan which are as follows:--
(i) What is the exact location of Berths 28-30 to find out as to whether the same are located inside or outside the area of the Port?
(ii) What is the exact area of the Port and how it was determined?
(iii) Whether it can be termed as "rating area" by virtue of Notification No. TAX-III/13(3)/85 dated 23.10.1958 and whether any deletion, amendment, insertion or addition has been made in it, if so, what would to be its effect?
(iv) Whether the provisions as contained in Rule 6 of Sindh Urban Property Rules are applicable in this case or otherwise?
(v) Whether assessment of the entire area including constructed area and vacant plot has been made pursuant to the agreement executed between the petitioner and that of K.P.T. or otherwise?
(vi) Whether K.P.T. had been paying property tax in similar cases?
(vii) Whether the entire port area can be considered urban area as defined in Section 2(1) of the Act?
(viii) Whether Berths in question are located within the area covering Pillars Nos. 120-144 of SITE as defined in the Schedule of the West Pakistan Urban Immovable Property [Validation of Valuation List and Tax Ordinance 1969 (XXXV of 1969)]?
(ix) Whether the property is located within the area covering Pillar No. 1 as notified vide SRO No. 307 (KE)/91 dated 5.10.1991, if so, to what effect?
(x) Whether the area in question has been defined as "Rating Area" pursuant to Section 3 of the Act of 1958, if not, what would be the impact of Sindh Finance Act, 1987 whereby the limits of "Rating Area" were extended by including the entire Karachi Division?
(xi) What would be the effect Notification No. 12-P(85)/39-II dated 2.5.1940 whereby the Federal Government had already declared limits of the Port of Karachi under Section 3 of the Karachi Port Trust Act, 1886?
(xiii) Whether the Port is under jurisdiction of the Federal Government and K.P.T. being local authority controlled and owned by the Federal Government can claim property tax of the buildings and lands ownership whereof is vested in the Federal Government and are exempted from the levy of such tax?
There is no doubt in our mind that being owner of the property till proved otherwise K.P.T. is liable to make payment of property tax at first instance and in case of its failure undoubtedly notice for recovery of property tax could be issued under Section 14 of the Act and further action for attachment can be taken pursuant to the provisions as enumerated in Section 16 of the Act against the petitioner who is responsible to pay property tax in view of Clause 14.3(c) and Clause 18 of the Implementation Agreement dated 1.6.1996 and Clauses 2 and 3 of Indenture of Lease executed between the petitioner and K.P.T. Syed Sharifuddin Pirzada, learned Sr. ASC on behalf of petitioner has stated categorically that the petitioner is willing to make payment of property tax without prejudice to his legal rights to further pursue the matter subject to adjustment with K.P.T. The statement of Syed Sharifuddin Pirzada, learned Sr. ASC being genuine is accepted which otherwise is not opposed by the respondents. The property tax as assessed by the Assessing Authority be deposited within a period of sixty days a subject to adjustment with K.P.T. and without prejudice to the legal rights of the petitioner to further pursue the matter before the forum concerned available under the hierarchy of Excise and Taxation Department to be approached first for the redressal of the grievance, if any, as such, the matter being ticklish, tedious and controversial cannot be set at naught by invocation of the constitutional jurisdiction.
The petition is disposed of in the above terms.
(A.A.) Order accordingly.
PLJ 2006 SC 12
[Appellate Jurisdiction]
Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ.
MUHAMMAD ZUBAIR and others--Appellants
versus
MUHAMMAD SHARIF--Respondent
C.A. No. 987 of 2000, decided on 18.4.2005.
(On appeal from the judgment dated 17.8.1998 of the Lahore High Court, Lahore passed in C.R. No. 451 of 1999)
(i) West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (V of 1962)--
----Ss. 2-A & 3--(Shariat Application (Amendment) Ordinance (XIII of 1983)]--Termination of limited estate--Devolution of property comprised in limited estate--Notwithstanding any judgment, decree or order on termination of limited interest, property comprised therein would be reverted to legal heirs of last male owner and his succession would be deemed to have devolved on all these persons who were his heirs according to law of sharia on the date of his death and in case of death any of them, his share would devolve on his heirs. [P. 16] A
(ii) West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (V of 1962)--
----Ss. 2-A & 3--Termination of limited estate--Devolution of property on legal heirs--Essentials--Collaterals claiming share of inheritance on termination of limited estate must establish their relationship with last male owner--Question of relationship having been conclusively determined by civil Courts--Revenue Authorities were not competent and had no jurisdiction to sit over judgment of civil Court and sanction inheritance mutation in favour of appellants who could not prove their relationship before Court of law--Question of inheritance having been conclusively determined by civil Court, such question could not be re-opened by Collector in his limited jurisdiciton--Under revenue law--No defect of misreading or non-reading of evidence in concurrent findings of three Courts having been pointed out, findings of Courts below were maintained. [Pp. 17 & 18] B, C & D
PLD 1985 SC 407; PLD 1991 SC 213; 2003 SCMR 362; 1990 SCMR 1667 and 2003 SCMR 1535, ref.
Mr. Gul Zarin Kiani, ASC & Ch. Akhtar Ali, AOR for Appellants.
Mr. Ibadur Rehman Lodhi, ASC & Mr. M.A. Zaidi, AOR for Respondent.
Date of hearing : 28.2.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court is directed against the judgment dated 17.8.1999 passed by Lahore High Court, Lahore in a civil revision arising out of a civil suit.
(1) Whether mutation dated 4.10.1943 could be reviewed by the Collector in 1995 when the question of absolute ownership of Mst. Daulan had twice been determined in earlier rounds of litigation, which had attained finality?
(2) Whether in the circumstances the Courts in the final round of litigation were obliged to follow the law laid down in Abdul Ghafoor vs. Muhammad Shafi (PLD 1985 SC 407) and Mst. Farida and two others vs. Rehmatullah and others (1991 SC 213)?
(3) Whether the petitioners, who failed to establish the ancestral nature of the property, have any right of succession in it under Sharia?"
The property, subject-matter of the dispute was agriculture land which was situated in the revenue estate of Mohinwala District Hafizabad. The land was originally owned by Aait Muhammad father of Mst. Daulan and Khushi Muhammad her cousin who died issueless and on their death the land was mutated in the name of Mst. Allah Jawai mother of Mst. Daulan and on death of Mst. Allah Jawai, Mst. Daulan became the owner of the land vide Mutation No. 45 dated 4.10.1943. The predecessor-in-interest of the appellants claiming themselves collaterals of Aait Muhammad and Khushi Muhammad succeeded in getting the Mutation No. 61 dated 30.4.1947 sanctioned whereupon Mst. Daulan filed a suit seeking declaration that she was full owner of the land and the mutation in question was illegal. The suit was decreed by the learned Civil Judge at Hafizabad, vide judgment dated 12.8.1948 and the appeal preferred by the predecessor-in-interest of the appellants was dismissed by the District Judge vide judgment dated 11.4.1949. In pursuance thereto, a Mutation No. 69 dated 27.6.1950 was attested in the name of Mst. Daulan which was subsequently challenged by one Muhammad on the revenue side but he remained unsuccessful. The predecessor-in-interest of the appellants then filed a fresh suit raising the same dispute and the learned Civil Judge, Hafizabad vide judgment dated 19.1.1966 dismissed the suit. The appeal preferred by them was allowed by a learned Additional District Judge, Gujranwala vide judgment dated 11.2.1967 and case was remanded to the trial Court for decision of the suit afresh but in the post remand proceedings, the suit was again dismissed by the trial Judge vide judgment dated 16.4.1968. The appeal preferred by the appellants against dismissal of suit was also dismissed by a learned Additional District Judge, Gurjanwala vide judgment dated 1.3.1970 and this judgment as well as the judgment in the earlier suit, having been not further challenged attained finality. The appellants then after lapse of a period of more than two decades moved an application before the Collector, Hafizabad for review of Mutation No. 45 dated 30.4.1947 and the Collector, vide order dated 27.3.1995 reviewed the mutation as a result of which three Mutations Bearing Nos. 63, 64 and 65 were attested. Mst. Daulan respondent therein filed a suit seeking declaration that the order dated 27.3.1995 passed by the Collector was illegal and ineffective to her rights. The appellants contested the suit and the main question raised for adjudication and consideration was in respect of the status of Mst. Daulan as to whether a full owner of the land or a limited owner and if she was a limited owner, the suit property on enforcement of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 as amended by West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act, 1983 (Act XIII of 1983), would not devolve upon the legal heirs of Aait Muhammad and Khushi Muhammad in accordance with law of Sharia.
The learned counsel for the appellants has contended that all the three Courts were misled to understand the proposition of law involved in the litigation in respect of right of inheritance of the appellants in the property in accordance with law of sharia. The Courts instead of attending the real question confused the matter with technicalities of procedural law and thereby deprived the appellants from their legitimate right of succession in the property. The learned counsel argued that the right of inheritance is not extinguished by afflux of time and the law of limitation or principal of res judicata would not operate against the right of succession of the appellants under law of Shariah, therefore, the earlier judgments in the civil suits rendered by the Civil Court would not debar them from claiming the right of succession as legal heirs of the last male owner on the termination of limited interest of Mst. Daulan under West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 as amended by Act XIII of 1983. The argument was that the suit property having devolved upon the legal heirs of Aait Muhammad and Khushi Muhammad, the Collector in consequence thereto, could competently review the mutation and while placing reliance on the short pedigreetable prepared by the Patwari on the mutation and also the entries in the revenue record made on the basis of mutation in question contended that the claim of appellants to the succession of Aait Muhammad and Khushi Muhammad the last made owners of the land could not be disputed. The learned counsel for the respondents on the other hand seriously challenging the correctness of the pedigree table prepared by the Patwari on the mutation and the genuineness of the claim of appellants to be the collaterals of the last male owner, contended that except the disputed mutation there was no independent evidence, oral or documentary, to suggest that appellants were collaterals of the last male owners and since their claim was earlier rejected twice by the Civil Court, therefore, the fresh suit on same subject, was not maintainable.
The limited estates in respect of immovable property held by the Muslim female under the customary law being governed by West Pakistan Muslim Personal Law Shariat Application Act, 1962 stood terminated by virtue of Section 3 of the Act, and on the insertion of Section 2-A in the ibid Act by Ordinance No. XIII of 1983, the position would further be changed. Section 2, 2-A and 3 of Act V of 1962, provided as under:--
"2. Application of the Muslim Personal Law.--Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gift, religious usages or institutions including Waqfs, trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims."
Provided that nothing herein contained shall apply to any such estate saved by any enactment repealed by this Act and the estates so excepted shall continue to be governed by that enactment, notwithstanding its repeal by this Act."
Section 2A inserted in the said Act by Ordinance No. XIII of 1983 is read as under:--
"2-A. Succession prior to Act IX of 1948.--Notwithstanding anything to the contrary contained in Section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim--
(a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat);
(b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act;
(c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith:
Provided that nothing therein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees."
There can be no cavil to the legal position that notwithstanding any judgment, decree or order on termination of limited interest, the property would be reverted to the legal heirs of the last male owner and his succession would be deemed to have opened on his death. The estate of Muslim deceased thus would be deemed to have devolved on all those persons who were his heirs according to the law of sharia on the date of his death and in case of the death of any of them, his share was to be devolved on his heirs. The matter involving the interpretation of the above referred provision of law with reference to the succession of a deceased muslim was discussed in Mst. Ghulam Janat and others versus Ghulam Janat through Legal Heirs and others (2003 SCMR 362), Ismail and another versus Ghulam Qadir and others (1990 SCMR 1667) and Muhammad Yousaf through Legal Heirs and 2 others versus Mst. Karam Khatoon through Legal Heirs and 2 others (2003 SCMR 1535) and it was consistently held that the above provision of law would operate accordingly. The learned counsel for the respondent without taking any exception to the above legal position conceded that on termination of limited interest, the property of a deceased Muslim would definitely devolve upon his legal heirs according to the law of Sharia and his succession would be deemed to have been opened on his death but argued that in the present case, no convincing evidence was brought on record to establish that either Mst. Daulan was limited owner or the parties were connected with common ancestors. It may be seen that without determination of the controversial question regarding the claim of the appellants of their relationship with the last male owners, it would be a futile exercise to go into the question whether Mst. Daulan was limited owner or she was full owner of land. The appellants have not brought any evidence on record to prove their relationship with the last male owner and they have also not been able to show us that the question of relationship was not conclusively decided by Civil Court in the earlier litigation or that the previous judgment of the Civil Court were on the different subject. Be that as it may, the law is that the revenue authorities cannot sit over the judgments of Civil Court and the Collector neither could change the status of Mst. Daulan from full owner to that of a limited owner not it was within his domain to hold that she had common ancestors with the appellants. In short the question regarding the relationship of the appellants with last male owners and the status of Mst. Daulan as a limited owner or full owner of land, having been twice decided by the Civil Court, could not be reopened by the Collector in his limited jurisdiction under the revenue law. The appellants without producing any evidence in support of their claim, made an attempt to establish their right on the basis of oral assertion and we having perused the record have not been able to find out any defect of misreading or non reading of evidence in the concurrent finding of three Courts on the precise question raised by the appellants.
There is no cavil to the proposition of law that on the enforcement of Muslim Personal Law (Shariat) Application Act, 1962 as amended by Act XIII of 1983, the property of last male owner subject-matter of limited interest would be deemed to have devolved upon his legal heirs on his death, and the right of succession would not be defeated by the law of limitation or the principle of res-judicata as no law or judgment can override the law of Sharia which is superior law. However, the right of inheritance neither can be created nor extinguished merely on the basis of oral assertion and in case of any dispute of the relationship of the claimant with the deceased owner, the person asserting such claim must prove it through the positive evidence. The question of relationship is purely a question of fact which would necessarily be decided on the basis of evidence and the burden of proving the relationship for the purpose of inheritance would be on the person who claimed right of succession. In the present case, the appellants without bringing any convincing evidence on record, in support of their claim of being collaterals of the last male owners, asserted their right in their property on the basis of the disputed mutation and the subsequent entries made in the revenue record. The perusal of evidence would evidently show that the appellants have not been able to discharge the heavy onus of proving their relationship with the last male owners. We find that the High Court having considered the controversial question relating to the existence of relationship of the predecessor-in-interest of the appellants with last male owners of the suit land in detail affirmed the concurrent finding of the two Courts and held that the claim of succession of the predecessor-in-interest of the appellants to the estate of Aait Muhammad and Khushi Muhammad was without any foundation. The learned counsel for the appellants made an attempt to convince us that in the peculiar circumstances of the case, the existence of relationship of the appellants with last male owners, would be presumed and argued that the entries in the revenue record made on the basis of disputed mutation having been not disputed by the respondents at any stage of the proceedings, would be considered a sufficient proof of the genuineness of the claim of the appellants and notwithstanding the non-availability of any other evidence, a legitimate presumption could be raised that the appellants and last male owners were connected with common ancestors. We are afraid, no judicial notice can be taken of a fact which was not proved on record through evidence and are of the considered view that in presence of the two judgments of the Civil Court on the same subject, the Collector in exercise of his powers under the revenue law could not interfere in the matter and undo the effect of said judgments and decrees passed by the Civil Court. The right to the succession of a deceased Muslim on the termination of limited interest would definitely devolve upon his legal heirs but to claim the right of succession, it would be essential to establish firstly that the property subject-matter of dispute involved limited interest and secondly, the claimants were the legal heirs of the last male owner and without proving the above basic question through the direct and legal evidence, the right of succession in the property could not be claimed. The appellants, except the disputed mutation have not been able to bring on record any evidence, oral or documentary, but the mutation in question or the subsequent revenue record prepared on the basis of said mutation could not be considered as an evidence of existence of relationship between the appellants and the last male owner of land. The learned counsel has not been able to show us any jurisdictional error or legal defect in the judgment of the High Court or any misreading or non-reading of the evidence to justify interference in the concurrent finding of three Courts on a question of fact.
We having perused the record, with the assistance of learned counsel for the parties, have not been able to find out any substance in the claim of appellants and consequently, dismiss this appeal with no order as to costs.
(A.A.) Appeal dismissed.
PLJ 2006 SC 19
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ.
Syed ISHAQUE HUSSAIN RIZVI (deceased) through Legal Representatives--Appellants
versus
SHEIKH MUBARIK ALI and others--Respondents
C.As. Nos. 342 & 351 of 2000, decided on 2.5.2005.
(On appeal from Common Judgment of Lahore High Court, Lahore, dated 19.1.2000 passed in R.S.A. No. 47/96)
(i) Civil Procedure Code, 1908 (V of 1908)--
----Ss. 9 & 47--Constitution of Pakistan (1973), Art. 185--Decree on basis of compromise was passed witness original allottee and vendees--Dispute between parties arising out of agreement to sell was thus, settled through such decree--Agreement to sell entered between parties subsequent to passing of decree would be entirely independent and on basis of such agreement, suit for specific performance and possession would be competent--Provision of S. 47 C.P.C. does not debar remedy rather the same regulates forum for enforcement of right arising out of decree. [Pp. 22 & 23] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----Ss. 9 & 47--Constitution of Pakistan (1973), Art. 185--Agreement between parties subsequent to decree passed on basis of compromise--Validity--Agreement to sell entered between parties subsequent to decree passed in their favour on basis of compromise was valid--High Court's view regarding legal character of agreement in question, that the same was void, was contrary to law, therefore, Concurrent findings of two Courts below subordinate High Court regarding subsequent agreement to the valid, would not be liable to be disturbed--Finding of High Court was set aside while that of Appellate Court was restored. [P. 23] B
Mr. Muhammad Hanif Niazi, ASC for Appellants (in C.A. 342/2000).
Syed M. Kaleem A. Khurshid, ASC for Respondents (in C.A. 342/ 2000).
Syed M. Kaleem A. Khurshid, ASC for Appellants (in C.A. 351/ 2000).
Mr. Muhammad Hanif Niazi, ASC for Respondents (in C.A. 351/ 2000).
Date of hearing : 2.5.2005.
Judgment
Muhammad Nawaz Abbasi, J.--These two direct cross Civil Appeals Bearing Nos. 342 of 2000 and 351 of 2000, filed under Article 185(2) (d) of the Constitution of Islamic Republic of Pakistan by the parties against the judgment dated 19.1.2000 passed by Lahore High Court, Lahore in Regular Second Appeal No. 47 of 1996 are hereby disposed of through this constitutional judgment. The appellants namely Syed Ishaque Hussain Rizvi, deceased through Syed Hassan Abbas Rizvi and others (in Civil Appeal No. 342 of 2000) and Sheikh Mubarik Ali and others (in Civil Appeal No. 351 of 2000) will be called as appellants and respondents respectively, in this judgment.
URDU
Subsequent to the disposal of the above suit, Respondents Nos. 3 & 4, on 30.7.1980, entered into an agreement of sale of their 1/3rd share in the land with Respondents Nos. 1 & 2 and on failure of sellers to give effect to the agreement, the buyers filed a suit for specific performance of the agreement with possession of land including the land which fell to their share under decree dated 25.2.1977 and pending adjudication of this suit, Respondents Nos. 3 & 4 on 13.1.1986, executed a sale-deed in favour of the appellants whereupon Respondents Nos. 1 & 2 by way of amendment in the suit, added the relief of cancellation of sale deed. The learned trial Judge, however, decreed the suit to the extent of 1/3rd share of Respondents Nos. 3 & 4 in the land vide judgment dated 22.12.1991 but on appeals filed by both the parties, a learned Additional District Judge, Sheikhupura, vide judgment dated 19.12.1995, allowed the appeal of the respondents and decreed their suit in full whereas the appeal of the appellants was dismissed. However, in second appeal filed by the appellants in the High Court, the learned Judge in chamber while modifying the judgment of the appellate Court, dismissed the suit to the extent of 1/3rd share of Respondents Nos. 3 & 4 in the land holding the agreement dated 10.7.1980 as void.
Learned counsel for the appellants contends that this is settled law that all questions arising between the parties or their representatives in the suit in which decree was passed must be determined by the executing Court in terms of Section 47 CPC for the satisfaction of decree and a separate suit is not maintainable but in the present case all the three Courts erred in law in holding that suit being not bared by the provisions of Section 47 CPC was competent. Learned counsel next argued that the learned Judge in the High Court having rightly come to the conclusion that the agreement dated 10.7.1980, subject matter of suit, was void, was misled in holding that the appellants were not bona fide purchasers. The last contention of the learned counsel was that the appellants were not party in the earlier suit and consequently, the transaction of sale of land in their favour made by the original allottee vide sale-deed dated 13.1.1986, during the pendency of suit, would not be hit by the principle of lis pendens.
Learned counsel for the respondents on the other hand (appellants in the cross appeal), contended that the High Court was mis-directed in law in coming to the conclusion that the agreement to sell dated 30.7.1980 was void whereas it having been executed in consequence to the settlement of dispute vide consent decree dated 25.2.1977 would be holding the filed and on all force, was a legal and valid instrument. Learned counsel submitted that Respondents Nos. 1 & 2 acquired title in the suit property to the extent of 2/3rd share under the decree and would get 1/3rd share on the basis of agreement dated 13.8.1980 which was entirely an independent transaction and remedy of Section 47 CPC for the enforcement of this agreement would not be available to them.
We have heard the learned counsel for the parties at length and also perused the record with their assistance. The decree dated 25.2.1977 as was passed in terms of the compromise and the dispute between the original allottee, (Respondents Nos. 3 & 4) and Mubarik Ali etc. vendees, (Respondents Nos. 1 & 2) arising out of the agreement dated 18.9.1961 was settled. In pursuance of the decree, the original allottee (Respondents Nos. 1 & 2) executed an agreement dated 13.8.1980 with its acknowledgments dated 31.8.1980 and 17.12.1980 for sale of 1/3rd share in the land to Sh. Mubarik Ali etc. (Respondents Nos. 1 & 2) therefore, this subsequent agreement would acquire the status of a valid document creating title in the property and learned Senior Civil Judge, Sheikhupura, having considered it a legal instrument, decreed the suit vide judgment dated 27.12.1984 in the following terms:--
"As a result of my findings on the preceding issues this suit is decreed for specific performance of the agreement dated 17.12.1980 in the terms that the plaintiff have paid the entire consideration for 1/3rd of the total suit land, that Defendants Nos. 1 and 2 are directed to execuate a sale-deed in favour of plaintiffs in respect of 1/3rd share of the entire suit land within a period of one months, if they failed, the plaintiffs shall be entitled to get the deed executed thought the representative of this Court. The suit of the plaintiffs regarding rest of the suit land is dismissed. The sale-deed dated 13.7.86, made in favour of Defendant No. 3 is held ineffective to the rights of the plaintiffs to the extent of 1/3rd share of the suit land. The parties are left to bear their own costs. This decree shall be treated ex parte against the defendants except Defendant No. 3."
The decree passed by the trial Court was however, modified by the learned Additional District Judge, Sheikhupura, in cross appeals vide judgment dated 19.12.1995 in the following manner:--
"Under the circumstances, the instant Appeal No. 153 filed by Mubarik Ali plaintiff stands accepted and appeal filed by Syed Ishaque Hussain Rizvi Appeal No. 152 stands dismissed. The impugned judgment and decree dated 22.12.1991 while dismissing the suit of the plaintiff/appellant of Appeal No. 153 to the extent of 2/3 of the suit land stands set aside. Consequently, a suit filed by the plaintiffs Sh. Mubarik Ali and Mst. Umat-un-Nisa shall stand decreed in their favour and against the defendants in respect of whole of the suit land. Parties are left to bear their own costs."
We having examined the matter in the light of the contentions raised by the learned counsel for the parties and decree passed in the previous suit, find that the learned Judge in Chamber in the High Court was misled in holding that the agreement dated 13.8.1980 was void. The agreements between the parties in respect of the property, subject-matter of decree dated 25.2.1977, would become subservient to it and lost its independent status whereas the agreement entered between the parties subsequent to the passing of the decree, would be entirely independent and on the basis of such agreement, suit for specific performance and possession of land would be competent. The provisions of Section 47 CPC are analogous to other provisions of CPC and does not as such debar the remedy rather it regulates the forum for the enforcement of right arising out of the decree. The civil rights subject to law, can be enforced through a civil suit except the rights which flow form a decree and thus a suit for enforcement of decree is not competent under Section 47 CPC but in the present case, the right claimed by Respondents Nos. 1 & 2 under the agreement dated 13.8.1980 having been not created in their favour under the decree would not be determinable in terms of Section 47 CPC and consequently, the suit would not be defeated on the basis of technical objection. The decree dated 25.2.1977 being declaratory in character also would not be as such capable for execution therefore, provisions of Section 47 CPC even otherwise would not debar the suit. In the light of the position explained above, we would take no execution to the view of the High Court in the matter. However, the question relating to the dismissal of suit to the extent of 1/3rd share in the property purchased by the Respondents Nos. 1 & 2 through the agreement in question would need consideration. Ishaq Hussain Rizvi was real brother of Ihtesham Hussain and Mst. Shamim Akhtar, widow of Ishaq Hussain Rizvi, was attorney of Ihtesham Hussain. Ishaq Hussain was not party to the agreement dated 18.9.1961 and was also not a party in the suit in which decree was passed in terms of compromise on 25.2.1977, by virtue of which Mst. Shamim Akhtar was given 1/3rd share in the land for onward transfer in the name of her husband, Ishaque Hussain, appellant herein, therefore, notwithstanding the formal execution of decree and acquisition of proprietary rights of the land by the original allottee, they could competently enter into a sale agreement in respect of their 1/3rd share in the land and create a valid title on the basis of which Respondents Nos. 1 & 2 asserted their right for a decree of specific performance with possession of land, including the land the title of which they derived under the decree dated 25.2.1977 and consequently, the sale-deed dated 31.1.1986 executed by Respondents Nos. 3 & 4 in favour of appellants would not as such effect their rights. In view of the above, the observation of the learned Judge in the High Court that the sale in favour of appellants having taken place during pendency of the suit, would be hit by the principle of lis pendens and the appellants would not be considered bona fide purchasers was unexceptional but the view regarding the legal character of the agreement dated 13.8.1980 was contrary to law and the concurrent finding of the two Courts subordinate to the High Court on this specific issue, was not liable to be disturbed.
In the light of foregoing discussion, we while setting aside the judgment of the High Court dismiss Civil Appeal No. 342 of 2000 and allow Civil Appeal No. 351 of 2000 as a result of which, the decree dated 19.12.1995 passed by the appellate Court shall stand restored. There will be no order as to the costs.
(A.A.) Appeal accepted.
PLJ 2005 SC 24
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Mian Shakirullah Jan and M. Javed Buttar, JJ.
SECRETARY, MINISTRY OF DEFENCE and another--Appellants
versus
ZAHOOR AHMAD JAVED--Respondents
C.A. No. 1521 of 2001, decided on 22.3.2005.
(On appeal from the judgment dated 4.11.2000, of Federal Service Tribunal passed in Appeal No. 428(R)-C S/2000)
Pakistan Army Act, 1952 (XXXIX of 1952)--
----S. 2(1)(c)--Government Servants (Efficiency and Discipline) Rules 1973, R. 4--Constitution of Pakistan (1973), Art. 212--Respondent's re-instatement in service by Service Tribunal--Respondent whether a civil servant or whether to be dealt with under Pakistan Army Act, 1952--Respondent being employee of special communication organization, a component of Pakistan Army was dismissed from service under provisions of Pakistan Army Act 1952, on charge of misconduct, however, he was reinstated in service by service Tribunal--Provision of S. 2(1)(c) Pakistan Army Act 1952, would indicate that a person not otherwise subject to Pakistan Army Act, 1952 is attached with a force which is on active service while engaged in military operation, would be deemed to be on active service--Notification issued by Federal Government under S. 7 of Pakistan Army Act, 1952 would show that all those persons who were not otherwise subject to military laws and do not directly fall within ambit of Pakistan Army Act 1952, would be deemed to be on active service who are employed by or are in service or are followers of, or are accompanying any portion of regular Army on active service, in camp, or on the march or at any frontier post specified by Federal Government under S. 7 of Pakistan Army Act, 1952--Respondent as employee of special communication organization which is an integral part of Pakistan Army and being attached with a force on active service, would be deemed to be within purview of Pakistan Army Act, 1952 therefore, he would not be deemed to be a civil servant and thus could not avail remedy of appeal under Service Tribunal Act 1973--Order of service Tribunal re-instating respondent was set aside. [Pp. 30, 31 & 33] A, B & C
1997 PLC (C.S.) 852; 1999 SCMR 664; AIR 1976 SC 1179 and AIR 1987 SC 413, ref.
Mr. M. Munir Peracha, ASC with Lt. Col. Iqbal Hashmi, Assistant JAG, G.H.Q. for Appellants.
Sh. Riaz-ul-Haq, ASC with Mr. M.A. Zaidi, AOR for Respondent.
Date of hearing : 22.3.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court has been directed against the judgment dated 4.11.2000 passed by he Federal Service Tribunal, Islamabad whereby the appeal filed by the respondent, seeking reinstatement in service, was dismissed.
"11. The net result of above discussion would that the appellant could not be considered to be in active service vis-a-vis procedure to be adopted for awarding of major penalty of dismissal from service rather if at all such a penalty was to be enacted then he was to be subjected to the procedure as laid down under the Government Servants (E&D) Rules, 1973. It is a fundamental principle of law that when a person is accused of a charge and that too of serious nature like fraud, he has to be given an opportunity of being heard and for that purpose a charge sheet accompanied by statement of allegations is to be issued to him, reply thereto to be taken from him, thereafter an inquiry officer or inquiry committee is to be appointed/ constituted for holding discrete regular inquiry into all such allegations by giving an opportunity to the accused to cross-examine the witnesses and to produce evidence in defence, thereafter a show-cause notice is to be issued to him which is to be responded by the accused and lastly right of personal hearing is also to be granted meaning thereby the procedure as envisaged under Rule 6 of Government Servants (E&D) Rules, 1973 is to be applied in letter and spirit. Holding of Court of inquiry simplicitor cannot absolve the respondents authority of doing away with all the aforementioned pre-requisites as doing so would be tantamounting to accused being condemned unheard. As the appellant was not dealt with under Government Servants (E&D) Rules, 1973 vis-a-vis proving the charges against him, hence the appeal is accepted and the impugned order is set aside. The appellant is to be reinstated with a direction to the respondents to hold a full-fledged/regular inquiry afresh in accordance with law in the light of our above observations especially as countenanced under Rule 6 of Government Servants (E&D) Rules, 1973. The intervening period is to be treated leave of any kind due. The matter of grant or otherwise of back benefits is to hinge upon the fate of fresh inquiry."
"In this petition leave to appeal has been sought against the judgment dated 4.11.2000 passed by the Federal Service Tribunal, Islamabad whereby Appeal No. 42(R)/CS/2000 filed by the respondent against his dismissal from service was allowed and he was reinstated in service.
Briefly stated facts of the case are that after his retirement as Lance Naik from Pakistan Army the respondent was appointed as Lower Division Clerk in the Headquarters of Special Communication Organization (Defence) on 31.8.1988. During his service, he was found guilt of misconduct, therefore, after conducting inquiry, his services were terminated on 1.11.1999, as such, he preferred departmental appeal, which was rejected on 31.12.1999. Consequently, he filed appeal before the Federal Service Tribunal, Islamabad which has been allowed vide impugned order as such instant petition has been filed.
Learned counsel appearing on behalf of the petitioners contended that the respondent was not a civil servant as he was directly connected with the operational affairs of the Pakistan Army as such, his services were governed by the Pakistan Army Act, 1952. To strengthen their argument, they placed reliance on Muhammad Yousaf vs. Secretary, Ministry of Defence (1997 PLC (C.S.) 852) and Federal of Pakistan vs. Khurshid Ahmad (1999 SCMR 664).
We have heard the learned counsel and have also gone through the impugned order. A perusal whereof indicates that the learned Federal Service Tribunal was itself of the opinion that as far as the minor offences were concerned those were governed by the Pakistan Army Act, 1952 whereas so far as the major acts were concerned, the respondent would be dealt with under the provisions of Government Servants (Efficiency & Discipline) Rules, 1973, paragraph 10 of the impugned judgment being relevant is re-produced hereinbelow:--
"In our analysis, only such civilians shall be treated to be on "active service" who are assisting the Army in defence matters which includes the communication service for the purposes of defence. Conversely the civilian employees in any Organization under the Army who are not performing the operational duties in relation to the defence or not acting in aid of such duties, will not be treated as a class of persons who perform duties connected with the defence of the State. Another aspect of the matter is that as per terms and conditions of such civilian employees, it has been included therein that they shall be subject to Army Act for certain purposes like awarding of minor punishment under the Pakistan Army Act. This is special provision applicable to the civilian employees of the SCO. It is therefore, held that civilian employees of the SCO are subject to the Pakistan Army Act in the matter of minor punishment and such other matters for which this Act has been expressly made applicable. The E&D Rules under the Civil Servants Act, have been framed but there are a large number of other Organizations and statutory bodies who have also adopted such rule. The application of the Army Act for the purpose of minor punishment and other allied matters relating to good order and efficiency and disciple is thus lawful in the case of civilian employees working under the SCOR in A.J.K. The Telephone and Telegraph system has been entrusted to Army and is being managed by SCO. It was therefore, desirably that certain provisions of Army Act and rules were made applicable to the civilian employees of SCO for the efficient functioning of SCO. But the application of Pakistan Army Act to such civilian employees in the matter of minor punishment and certain aspects of discipline does not convert their services as to bring the same at par with those of the members of defence service which ordinarily included Army, Navy and the Air Force, and may also include such civilian employees who perform duties in relation to the defence of the State.
The net result of above discussion would be that the appellant could not be considered to be in active service vis-a-vis procedure to be adopted for awarding of major penalty of dismissal from service rather if at all such a penalty was to be exacted then he was to be subjected to the procedure as laid down under the Government Servants (E&D) Rules, 1973".
In view of the above contradiction in the judgment itself as well as after having gone through the judgments reported as Muhammad Yousaf vs. Secretary, Ministry of Defence (1997 PLC (C.S) 852) and Federation of Pakistan vs. Khurshid Ahmad (1999 SCMR 664), relied upon by the learned counsel for the petitioners, we are inclined to grant leave to appeal to consider as to whether the respondent was a civil servant and was liable to be deal with under the Government Servants (Efficiency & Discipline) Rules, 1973 or he was to be dealt with under the Pakistan Army Act, 1952 for the purpose of disciplinary action. Leave is accordingly granted. Pending decision of the appeal, operation of the impugned order is suspended."
The Special Communication Organization is certainly an Organization of Pakistan Army and in addition to the members of regular army, the civilians are also employed in the Organization, therefore, the essential question requiring determination in the instant case would be whether an employee of the Organization who is not otherwise subject to the military law, would become subject to Pakistan Army Act, 1952, by virtue of Section 2(1)(c) read with Section 7 of this Act.
The contention of learned counsel for the appellants is that the person not otherwise subject to Pakistan Army Act, would become subject to this Act who on active service in camp or on the march or at any frontier post specified by the Federal Government are employed by or in the service of or in a follower of or accompany or portion of the Pakistan Army are deemed to be on active service during the period, they are attached or form part of force which is engaged in any military operation as defined in Section 8(1) of the ibid Act. The Special Communication Organization is a force and by virtue of its functions, being engaged in military operations, is on active service in terms of notification, therefore, the respondent a civilian employee of the Organization, was part of the force and was not a civil servant to avail the remedy of appeal before the Service Tribunal under Section 4 of the Federal Service Tribunal Act, 1973. The learned counsel for the respondent on the other hand has argued that the respondent was employed in the organization as civilian telephone operator and was not on active service to be treated subject to the Pakistan Army Act by virtue of Section 2(1)(c) read with Section 7 of this Act. The learned counsel without disputing the status of Special Communication Organization as a component of the Pakistan Army, submitted that the respondent being civilian employee would be governed by the service laws applicable to the civil servants and since he was removed from service without giving him a show-cause notice or of a charge sheet and holding of a regular inquiry or giving an opportunity of hearing, therefore, the impugned judgment was unexceptional. The proposition as to whether the respondent would be governed by Civil Servants Act, 1973 or Pakistan Army Act, 1952, would need examination in the light of relevant provisions in the Pakistan Army Act. Section 2(1)(c) of Pakistan Army Act provides as under:--
"2(1)(c) Person not otherwise subject to this Act, who on active service, in camp, on the March or at any frontier post specified by the Federal Government by notification in this behalf, are employed by, or are in the service of or are followers of, or accompany or portion of the Pakistan Army."
"(1) "active service", as applied to a person subject to this Act, means the time during which such person is attached to, or forms part of a force which is engaged in operations against an enemy, or is engaged in military operations in, or is on the line of march to a country or place wholly or partly occupied by an enemy, or is attached to or forms part of a force which is in military occupation of a foreign country".
The term active' means in action andservice' in the meaning of employment, is civil service, military service or public service and expression `on active service' in relation to the military services, means a person who is engaged in any military operation as defined in
Section 8(1) of the Act.
"7. Power of declare persons to be on active service.--Notwithstanding anything contained in Clause (1) of Section 8, the Federal Government may, by notification, direct that any person or class of persons subject to this Act shall, with reference to any area in which they may be serving or with reference to all or any of provisions of this Act or of any other law for the time being in force, be deemed to be on active service within the meaning of this Act."
"In exercise of the powers conferred by Section 7 of the Pakistan Army Act, 1952 (XXXIX of 1952) and in supersession of this Ministry's Notification No. 4852/325/PSIA/4484/D-2(A)/71, 23rd November, 1971, the Federal Government is pleased to direct that persons subject to the said Act, shall, with reference to any area in or outside Pakistan in which they may be serving and with reference to all the provisions of the said Act, and of any other law for the time being in force, be deemed to be on active service within the meaning of that Act."
The respondent was serving in the Special Communications Organization which is an integral part of Pakistan Army and was not a regular member of Armed forces but was attached with the force on active service being engaged in military operation, therefore, he would be deemed to be on active service by virtue of Section 2(1)(c) read with Section 8(1) and the notification issued under Section 7 ibid. This Court in Federation of Pakistan and 2 others versus Khurshid Ahmad and another (1999 SCMR 664) observed as under:
"14. We now turn to Section 2(1)(c) of the Act to determine whether in the circumstances, it was necessary for the respondent who was otherwise not subject to the Act, to be on "Active service" in camp, on the march or on a frontier post, specified by the Federal Government by notification in this behalf, in order to make him a person subject to the Act. On a careful examination of the language of clause (c) of sub-section (1) of Section 2 ibid, we are of the view that the words "active service in camp, on march or on a frontier post specified by the Federal Government do not refer to a person not otherwise subject to this Act but refer to any portion of Pakistan Army used in the latter part of that sub-section. If we read Section 2(1)(c) of the Act as suggested by the learned counsel for the respondent and as interpreted by the learned Judges of the High Court then in order to make a person not otherwise subject to the Act, a persons subject to the Act, he should be on active service, in camp, on march or on any frontier post specified by the Federal Government by notification in this behalf and employed by or in the service of or is a follower of or accompanying any portion of Pakistan Army. We have already reproduced the definition of `active service' given in Section 8(1) of the Act. The concept of "active service" both under Section 8(1) and Section 7 of the Act, is applicable only to persons subject to the Act, meaning thereby persons constituting the regular force of the Army. No doubt, civilian employees of Army and others not subject to Act, are rendered subject to the Act in certain circumstances but there is no concept in the Act to treat such persons on active service. On a careful consideration of provisions of Section 2(1)(c) of the Act, we are of the considered view that the words "on active service" in camp, on the march or at any frontier post" in clause (c) to sub-section (1) and Section 2 (ibid) refer to any portion of the Pakistan Army. In our view, Section 2(1)(c) is to be read as "a person not otherwise subject to this Act, are employed by, or are in the service of or are followers of or accompanying any portion of the Pakistan Army, on active service, in camp, on march or on a frontier post specified by the Federal Government by notification in this behalf". It is only by reading of the provision in the manner indicated by us that the provision will give meaning which will harmonize with the object of the Act otherwise it would lead to absurdity. The expression "active service" in camp, on the march or at any frontier post specified by the Federal Government cannot possibly refer to a person other than those which are mentioned in clauses (a), (b) and (bb) to sub-section(1) of Section 2 of the Act as there is no concept in the Act that persons who are not subject to the provisions of the Act can also be on active service or in camp or on march or at any frontier post independently. These conditions can only be satisfied if a person not otherwise subject to the Act is accompanying a portion of Pakistan Army or a person who is on active service or in camp or on march or on frontier post specified by the Federal Government."
While making the above observations, the Court has discussed the ration of the case of O.K.A. Nair v. Union of India (AIR 1976 SC 1179) and Gopal Upadhyaya Union of India (AIR 1987 SC 413), in the later case it was held as under:
"In enacting the Army Act, 1940, insofar as it restricts or abrogates any of the fundamental rights of the members of the Armed Forces, Parliament derives its competence from Article 33 of the Constitution. Section 2(1) of the Act enumerates the persons who are subject to the operation of this Act. According to sub-clause (i) of this section, persons governed by the Act, include `persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post, specified by the Central Government by notification in this behalf, are empowered by, or are in the service, or are followers of, or, or accompany any portion of the regular army.'
The members of the unions represented by the appellants fall within this category. It is their duty to follow or accompany the Armed Personnel on active service, or in camp or on the march. Although they are non-combatants and are in some matters governed by the Civil Service Regulations, yet they are integral to the Armed Forces. They answer the description of the `members of the Armed Forces' within the contemplation of Article 33. Consequently, by virtue of Section 21, Army Act, the Central Government was competent by notification to make rules restricting or curtailing their fundamental rights under Article 19(1)(c)".
The non-combatant civilian employees of an Organization or an establishment of Pakistan Army which is part of the defence, who are not subject to the Pakistan Army Act can not be ordinarily brought within the purview of this Act but the persons who are not otherwise subject to the Act while in the employment or in the service of an Organization of Pakistan Army, which is engaged in any military operation and is on active service as discussed hereinabove, would be deemed to be on active service and would become subject to the Army Act. The learned counsel for the respondent has not been able to distinguish the case of respondent and satisfy us that at the relevant time he was not on active service. This is correct that the civilian employees in defence are generally excluded from the purview of the Army Act 1952 but the civilian employees attached with a portion of Pakistan Army on active service being engaged in military operation would become subject to the Act by virtue of Section 2(1)(c) read with Section 7 of the Act and the notification issued thereunder. The respondent was employed in Special Communication Organization which is a part of Pakistan Army and is on active service, therefore, he would also be deemed to be on active service and at the relevant time would not be treated as civil servant for the purpose of Civil Servants Act, 1973, to avail the remedy of appeal under Federal Service Tribunal Act, 1973 before the Federal Service Tribunal. The jurisdiction of the Tribunal is confined to the matters relating to the terms and conditions of civil servants being governed by the service laws and respondent being subject to Army Act, was not a civil servant to maintain appeal before the Tribunal.
In the light of the foregoing discussions, we set aside the judgment of the Service Tribunal and allow this appeal. There will be no order as to costs.
(A.A.) Appeal accepted.
PLJ 2006 SC (AJ&K) 34
[Appellate Jurisdiction]
Present : Khawaja Muhammad Saeed, C.J. and Syed Manzoor Hussain Gilani, J.
PARVEEN MUSHTAQ, PRINCIPAL, GOVERNMENT GIRLS HIGHER SECONDARY SCHOOL KAHORI, MUZAFFARABAD and others--Appellants
versus
KANEEZ AKHTAR, DEPUTY SECRETARY EDUCATION CIVIL SECRETARIAT, MUZAFFARABAD and others--Respondents
Civil Appeal No. 111 of 2003, decided on 18.6.2005.
(On appeal from the judgment of the Service Tribunal dated 27.3.2003 in Service Appeal No. 558 of 2001).
(i) Azad Jammu and Kashmir Upgradation of Posts Rules 1984, Sched.--
----Sched.--Azad Jammu and Kashmir Interim Constitution Act (VII of 1974), S. 47--4 tier structure for re-organization of school teachers from B.S. 17 to B.S. 20--Effect of notification dated 12.05.1991--Spirit of notification in question is that a member of posts of school teachers are specified to be up-graded--Appointment of persons against up-graded posts are left to be decided under rules regulating promotions or initial appointments--Contesting parties were appointed to up-graded posts by promotion on recommendation of relevant selection board--Appointment of persons under scheme in question, in thus, promotion against upgraded posts of school teachers. [P. 40] A
(ii) Word and Phrases--
----Word "upgradation"--Meaning scope and import of, explained and illustrated. [P. 40] B
(iii) Azad Jammu and Kashmir School Cadres Service Rules, 1989--
----[as amended on 18.5.1994]--Object, scope and import of Rules of 1989 as amended in 1994--Reasonable and just interpretation of Rules of 1989 is that only a person possessing requisite grade and qualification mentioned in rules can be appointed against any of specified assignments, however, no such requirement is for promotion to grades visualized by 4-tier structure, except the criterta mentioned in notification and determination of fitness by selection boards. [P. 41] C
(iv) Civil Service--
----Promotion--Every step in a higher position, ordered on recommendation of competent authority is promotion appointment against particular assignment a post is however, is posting of a person possessing required qualification for that post. [P. 41] D
(v) Azad Jammu and Kashmir Civil Servants Act, 1976--
----S. 9--Appointment of respondent appointed or Principal or Deputy Director, assailed--Respondent was chosen as Civil Servants to be appointed Principal or Deputy Director in view of prescribed qualification, otherwise there was no impediment in way of Government to appoint any other person qualified under rules to be appointed or designated as such. [P. 42] E
1991 SCMR 696; PLD 1993 SC 187; 2001 SCR 179 and PLD 2004 SC (AJK) 1.
Mr. Abdur Rashid Abbasi, Advocate for Appellants.
M/s. M. Tabbassum Aftab Alvi and Ashfaq Hussain Kiani, Advocates for Respondents.
Date of hearing: 11.05.2004.
Judgment
Syed Manzoor Hussain Gilani, J.--This appeal, with the leave of the Court, is filed against the judgment passed by the Service Tribunal of Azad Jammu & Kashmir on 27.3.2003, in Service Appeal No. 558 of 2001.
An appeal was filed by Respondent No. 1 Kaneez Akhtar, against the Notification No. 1621-30/2001, dated 08.6.2001, which was later on amended through a corrigendum order dated 19.9.2001.
The facts which culminated into the present appeal are that the appellants and the proforma-respondents (out of whome Respondents Nos. 5, 6, 7, 9 & 10 are transposed as appellants vide order of the Court dated 02.04.2004), were inducted as Senior Teacheresses (B-16) according to the rules, in the service of the Education Department of Azad Jammu & Kashmir Government. They were promoted to selection Grade B-18 vide order dated 29.5.1984 w.e.f. 12.1.1983. Upon restructuring of the Education Department, the 4-tier service structure was introduced vide Government Notification No. FD/R/4318-4418/91, dated 12.5.1991. The appellants and the proforma-respondents were promoted to B-18 w.e.f. 12.12.1990, vide notification dated 12.8.1991. They were further promoted to B-19 vide notification dated 3.12.2001. Respondent No. 1 was promoted to B-18 vide notification dated 5.5.1994 w.e.f. 12.12.1990. A notification was subsequently issued on 22.11.2000 stipulating the regular promotion of a few officers, including Respondent No. 1, to the post of Principal Higher Secondary School/Principal Elementary College w.e.f. 3.11.1994, subject to the condition that the aforesaid promotion shall not affect the seniority of any other senior officer. A seniority list of the officers of Grade B-18 of the Education Department was thereafter issued on 8.8.2001. The date of its issuance was, however, inadvertently printed as 8.6.2001, which was subsequently corrected through the notification dated 19.9.2001. This seniority list was challenged by Respondent No. 1 before the Service Tribunal through Service Appeal No. 558 of 2001, on 5.11.2001. The appeal was accepted by the Service Tribunal through the impugned judgment declaring Respondent No. 1 as senior in Grade B-18 to the appellants and proforma-respondents.
The learned Advocates for the parties after addressing the arguments at Bar, also filed their written arguments in support of their contentions.
The thrust of the arguments of the learned Advocate for the appellants and proforma-respondents is that the Service Tribunal has misread and misinterpreted the notification dated 12.5.1991, regarding the introduction of 4-tier structure for school teachers of the Education Department, and that the notification dated 12.8.1992, whereby the appellants and proforma-respondents are promoted to Grade B-18, on the recommendation of the Selection Board, has been left out from consideration. According to the learned Advocate the above misreading and non-reading of the notification has resulted into miscarriage of justice and rendered the structure of the Education Department ineffective. The learned Advocate has contended that the Service Tribunal is wrong to hold that the notification has conferred financial benefits only, not promotions, although, according to the learned Advocate, the notifications clearly speak and use the word "promotion". According to him, the Service Tribunal could not hold otherwise, except as is visualized by the notifications. He contended that the Service Tribunal has, in utter disregard of the provisions of the Azad Jammu & Kashmir Civil Servants (Appointment & Conditions of Service) Rules, 1977, construed the above referred law and rules. He also contended that the matter stood concluded in the year 1992, which was not challenged by the Respondent No. 1, hence the notification issued in her favour on 22.10.2000, does not alter the position. Moreso, the order dated 22.11.2000 specifically stipulates that alleged promotion shall not affect the seniority of the other officers. It is contended that the Service Tribunal also failed to take notice of a subsequent fact, whereby the appellants are promoted in grade B-19, w.e.f. 01.01.1998, while respondent is promoted in B-19, w.e.f. 22.3.2000 and this notification has also not been challenged. The learned Advocate has referred to a plethora of legal precedents, the relevant of which, if needed, shall be referred at appropriate stage.
The learned Advocates appearing for the respondents have defended the judgment of the Service Tribunal. The crux of their arguments is that although the scheme of 4-tier structure is not disputed and the consequent promotion of the appellants, proforma-respondents and Respondent No. 1 (answering respondents), is also not disputed, but the case of Respondent No. 1 is that, she alongwith two others was later on substantively promoted to the post of Principal, Govt. Elementary College/D.E.O. (B-18), w.e.f. 31.10.1994, vide notification dated 3.11.2000. Her case is that, at the time of promotion of the answering respondent, some of the appellants and proforma-respondents were only B.Ed., while the others were not possessing the qualification of M.A. M/Sc. 2nd Division, which is required under the Azad Jammu & Kashmir School Cadre Service Rules, 1989, as amended on 18.5.1994 for such promotion, on account of which, they could not be considered for regular promotion to grade B-18. Reliance is placed on the case titled Syed Imdad Ali Shah & 59 others vs. Azad Govt. & 8 others [2003 SCR 95]. According to the learned Advocate, Respondent No. 1 is wrongly placed at Serial No. 21 of the seniority list, issued on 8.6.2001, while the appellants and other respondents are shown at Serial Nos. 3 to 20, although they were not substantively promoted to Grade B-18 on regular basis. It is contended that the regular promotion of the answering respondent, vide notification dated 22.11.2000, is not challenged by any of the contesting parties, hence it would amount to have been accepted on account of which the judgment of the Service Tribunal is not open to challenge. The contention of the learned Advocate is that, even a void ab-intitio order has got to be vacated, otherwise, it operates. The learned Advocate relied upon the cases reported as Govt. of the Punjab through Secretary Services, Punjab, Lahore and 4 others vs. Muhammad Awais Shahid and 4 others [1991 SCMR 696], Abdul Matin Khan and 2 others v. N.W.F.P. through Chief Secretary and 2 others [PLD 1993 SC 187], Muhammad Ilyaz Khan and 5 others vs. Sardar Muhammad Hafeez Khan and 4 others [2001 SCR 179] and Sardar Muhammad Aziz Khan vs. Messrs United Kashmir Flour Mills (Pvt.) Ltd. through Chief Executive and another [PLD 2004 SC (AJ&K) 1].
According to the learned Advocate, as the 4-tier structure notification did not provide any rule of its own, hence normal rules applicable in the matter governed the field, under which a person regularly promoted to a particular post, ranks senior to those who are not regularly promoted. According to the learned Advocate, the 4-tier structure notification was like a selection grade or move over, which cannot be deemed as a regular promotion, hence seniority does not accrue from it.
After going through the written arguments, crux of which is stated above, we have perused the record, and gone through the relevant notifications, rules and the precedents relied upon by the learned Advocates for the parties.
The only point for resolution is as to whether the appointment of appellants and proforma-respondents to the grades visualized by 4-tier Government notification dated 12.5.1991 amounts to the promotion or not; and if not whether the appointment of Respondent No. 1 as Principal Higher Secondary School etc. vide notification dated 22.11.2000 is a regular promotion and seniority of officers in grade B-18 of the Education Department shall be reckoned from this date i.e. 22.11.2000 or not?
For resolution of this point, it is necessary to reproduce the notification dated 12.5.1991, which is as under:
"AZAD GOVERNMENT OF THE STATE OF JAMMU & KASHMIR, FINANCE DEPARTMENT
`Muzaffarabad'
Dated : 12.5.1991.
NOTIFICATION
No. FD/R/4318-4418/91. The President of Azad Jammu & Kashmir has been pleased to approve re-organization of school teachers cadre (from BS-17 to BS-20) under the 4-tier structure in the ratio of 1:15:34:50 for BS-20, 19, 18, 17 respectively from 12.12.1990 as detailed below:
BS-20 BS-19 BS-18 BS-17 Total
_____ _____ _____ _____ _____
6 95 216 317 634
BS-20 BS-19 BS-18
_____ _____ _____
5 92 182
(i) It shall be governed by such recruitment rules as framed/shall be framed from time to time for filling up the posts by promotion or initial recruitment as prescribed in the said rules. The promotions against the upgraded posts would be made strictly in accordance with the Service Rules.
(ii) All the present incumbents working in different grades may continue to be called as such for the time being unless different designations are notified for the posts in para 2 above.
(iii) The Subject/discipline-wise/post-wise distribution/ place-ment of posts in accordance with this reorganization shall be made in due course.
(iv) Yardstick of work-load for different categories of school teachers will be insured in such a way that no additional teaching posts are required to be created as a result of this re-organization.
Sd/- (Abdul Rauf Khan) Deputy Secretary Finance" (Regulations)
(Underlining is ours)
The notification dated 22.11.2000, under which Respondent No. 1 claims seniority over the others is also required to be reproduced, which is as under:--
As stated above, the appellants and proforma-respondents were promoted by the Government to Grade B-18 against the posts upgraded through the aforesaid 4-tier structure vide notification dated 12.8.1991, w.e.f. 1990. Respondent No. 1 was also prompted to Grade B-18 w.e.f. 12.12.1990 under the same structure. Through the notification dated 3.12.2001, the appellants and proforma-respondents were further promoted to B-19 on the recommendations of the Selection Board No. 1 under 4-tier structure w.e.f. 1.1.1998, 29.6.1999 and 1.1.2000. Respondent No. 1 was also promoted to BS-19 under the aforesaid notification w.e.f. 22.3.2000.
Para 2 of the notification dated 12.5.1991 states that number of the posts of school teachers upgraded to BS-20, 19 and 18. Sub-para (i) of para 3 of the notification postulates that the "promotion" against the "upgraded" posts would be made strictly in accordance with the service rules. The spirit of the above notification is that a number of the posts of the school teachers is specified to be upgraded. The appointments of the persons against the upgraded posts are left to be decided under the rules regulating the promotions or initial appointments. The contesting parties are appointed to the upgraded posts by promotion on the recommendation of the relevant selection board. Thus, the appointment of the persons under the above scheme is promotion against the upgraded posts of the school teachers.
The word "upgradation" used in the notification significantly implies reference to the rules regulating the upgradation of the posts, called as the Azad Jammu & Kashmir Upgradation of posts Rules, 1984. Under these rules, when a post is upgraded, the existing post stands abolished and the new post in higher grade is created. There can be no automatic upgradation of any incumbent to the upgraded post but the appointment against the posts is to be made in accordance with the prescribed procedure, laid down in the relevant rules. The relevant selection board has to consider the suitability of the candidates for appointment against the upgraded posts, and it is on the recommendation of that selection Board that the competent authority orders the appointment.
Once a person is recommended for appointment against an upgraded post, it amounts to promotion, whether he is formally posted against an assignment or not. The posting is a procedure which follows appointment, whether by promotion or direct recruitment. In the case in hand, the notification does not visualize the posting against any assignment of the Education department, after promotion to the higher grade. Once a person is promoted to the higher grade, he can be posted against any post or assignment equal to that grade, in the Education Department, in accordance with the rules regulating the posting against the relevant assignment or post.
Rules to which the respondents refer, are the Azad Jammu & Kashmir School Cadre Service Rules, 1989, as amended on 18.5.1995. The scheme of the amended rules provides the method of appointment, authority competent to make appointment and qualification for such appointment. The positions stated by the rules are, Director Public Instruction, Divisional Director/Directress, Deputy Director/Directress, Deputy Education Officer, Principal Higher Secondary Schools/Elementary Colleges, Headmaster/ Headminstress, Deputy District Education Officer, Subject Specialist Elementary College, and Higher Secondary Schools. The qualification of M.A./M.Sc. 2nd division with B.Ed. or equivalent is provided under the above rules for appointment to the post of Deputy Director/Directress, D.E.O., Principal Higher Secondary School and the Headmaster/ Headmistress.
What is perceived and appears reasonable and just interpretation of the rules, is, that only a person possessing the grade and the qualification mentioned in the rules for a post, can be appointed against it. It does not mean that a person promoted to the higher grade under 4-tier structure can be deemed as substantively promoted only when he is appointed against any of the posts referred above. The promotion is a matter different than posting. A person possession prescribed qualification and relevant grade can be appointed against any of the above assignments, but no such requirement is for promotion to the grades visualized by the 4-tier structure, except the criteria mentioned in the notification and determination of fitness by the selection board. Faced with similar proposition, the Supreme Court of Pakistan in the case reported as Govt. of the Punjab through Secretary Services, Punjab, Lahore and 4 others vs. Muhammad Awais Shahid and 4 others [1991 SCMR 696], where it was confronted with a provision which allowed 50% of regular strength of the Civil Judges to be in BS-18, while the post of Civil Judge is ordinary in BS-17, and certain percentage of the posts of District & Sessions Judges to be in BS-20, which is ordinarily in BS-19. A question arose, whether the higher pay scale was available automatically to the senior most or any element of selection was involved therein. It was held that:
"......under the existing rules consistently practised that wherever there is a change of grade or post for the better, there is an element of selection involved that is promotion and it is not earned automatically, but under an Order of the competent authority to be passed after due consideration on the comparative suitability and the entitlement of those incumbents."
This view was reiterated by the Supreme Court of Pakistan in another case reported as Abdul Matin Khan and 2 others vs. N.W.F.P. through Chief Secretary and 2 others [PLD 1993 SC 187].
Every step in a higher position, ordered on the recommendation of the competent authority is a promotion, while appointment against a particular assignment or post is a posting of a person possessing required qualification for that post.
We can not lose sight of the fact that the competent authority has itself stipulated in the notification dated 12.11.2002, that this notification shall not affect the seniority of any other officer/officers senior to Respondent No. 1 who is eligible to be promoted to the post of Principal under the School Cadre Service Rules, 1994. It vividly clarifies the position that the respondent or for that matter, others listed in that notification, are chosen to be posted as such, out of many eligible incumbents, but this would not affect the seniority of those, who are not so chosen or posted as such. This notification simply appears to be putting a feather in the cap of Respondent No. 1, to be called as Principal or Deputy Director, as the case may be, and nothing beyond that. She still remains one out of those who are promoted to the higher grade under the 4-tier structure, howsoever, designated.
Viewing the case from another angle, the promotion of the appellants, proforma-respondents and the contesting respondents is made on 12.8.1992, w.e.f. 12.12.1990, while the rules prescribing the qualification for appointment to the post of Principal Higher Secondary School etc. are made in 1994. When the promotions under 4-teir structure were made in the higher grades, Azad Jammu & Kashmir Education Department Service Rules, 1984 were in force, which did not contain any such qualification for posting as Deputy Director or Principal etc. It provided only the selection on merit-cum-seniority and fitness from amongst the officers holding particular posts specified under the rules. The amended rules of 1994 provide the 2nd division M.A./M.Sc. for appointment against these positions.
The Court cannot lose sight of another aspect of the case, that under Section 9 of the Civil Servants Act, 1976, every civil servant is liable to serve anywhere in any post under the Government, irrespective of the grade, he possesses. But that does not mean that if a particular criteria is laid down for posting against a particular assignment that should be ignored. What we mean is that, Respondent No. 1 is chosen as a civil servant to be appointed as Principal or Deputy Director, as the case may be, in view of the prescribed qualification, otherwise there was no impediment in the way of the Government to appoint any other person qualified under the rules to be appointed or designated as such.
Plethora of case-law referred by the learned Advocates for the parties in their written arguments is based on hypothetical arguments regarding the promotion and posting. The matter is very simple, which has unnecessarily been made complicated by the Service Tribunal adopting for fetched and unwarranted interpretation.
In view of above discussion, while accepting the appeal, the order passed by the Service Tribunal on 27.3.2003, is hereby vacated and the appeal filed before the Service Tribunal is dismissed with costs.
(A.A.) Appeal accepted.
PLJ 2006 SC 41
[Appellate Jurisdiction]
Present: Hamid Ali Mirza & Muhammad Nawaz Abbasi, JJ.
MANJEET SINGH--Petitioner
versus
STATE--Respondent
Crl. Petitions Nos. 529 to 531 of 2003, decided on 18.8.2005.
(On appeal from the judgments of Lahore High Court, Lahore, dated 27.12.2001 passed in Crl. As. 105-J/1991, 68-J/1991 & 107-J/1991 respectively).
(i) Administration of Justice--
----Rule of criminal administration--Confessional statement--Judicial or extra-judicial--Mandatory rule--There is no rule of criminal administration of justice that the Court having found retracted confession, voluntary and true, must also look for the corroboration and in absence of corroborative evidence, conviction cannot be maintained--Retraction of judicial or extra-judicial confession itself is not an infirmity to be considered sufficient to withhold the conviction because evidentiary value of a confession is not diminished by mere fact that it was retracted by maker at the trial--Independent corroboration from other sources, direct or circumstantial, cannot be insisted in every case as a mandatory rule rather the rule of corroboration is applied as abundant caution and in a case depending entirely on confessional statement or only on the circumstantial evidence, this rule is applied more cautiously. [P. 56] F
(ii) Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 164 & 342--Pakistan Penal Code, (XLV of 1860) Ss. 302/307--Explosive Substances Act, (XI of 1908), Ss. 3, 4 & 5--Bomb explosion--Murders and injuries--Conviction and sentence of death of offence of murder as well as imprisonment of R.I. for causing injuries--Upheld by High Court main question judicial confession and retracted judicial confession--Held: Court should be very careful in ascertaining the true character of the confession for conviction and must consider the reasons given for retraction of the confession to find out truth--This is settled law that a retracted confession either judicial or extra-judicial can be used for conviction without looking any other sort of corroboration. [P. 53] A & B
(iii) Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 164 & 342--Constitution of Pakistan, 1973, Art. 185(3)--Commission of criminal offence--Statement and confession--Retracted confession recording of--Effect of--The modus operandi commission of offence in all the cases of bomb blasts was the same and the petitioner was found guilty on basis of confessional statement u/S. 164 Cr.P.C.--Mere denial of petitioner to have not made a confession or the procedural defect in recording the statement would neither effect the admissibility of confessional statement nor reduce its evidentiary value, objection regarding the delay in according the confessional statement would be of no significance as in such cases of terrorism, because direct evidence would not be possible, if the confession was found true and voluntary, the delay would not be fatal. [P. 56] E
(iv) Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 162 & 342--Explosive Substances Act, (XI of 1908), Ss. 3, 4 & 5--Retracted confession--Truthfulness and voluntariness of the confession in bomb blast cases--Rule of corroboration--Rule of abundant--There is no cavil to the general rule that it is not prudent to base the conviction in a criminal case only on the strength of retracted confession without independent corroboration in necessary particulars and Court is under obligation to inquire into all the material points and surrounding circumstances to satisfy itself the truthfulness and voluntariness of the confession--It is not an inflexible rule that retracted confession cannot be made basis of conviction without independent corroboration--Rule of corroboration is rule of abundant caution which is insisted only to exclude any possibility of doubt qua the guilt of person--A retracted confession can be legally taken into consideration against the maker if it is found true and voluntary and can be used as sole evidence for conviction without any corroboration if Court is satisfied about its voluntary character and truth fulness. [P. 54] C & D
(v) Constitution of Pakistan, 1973--
----Art. 185(3) Pakistan Penal Code, 1860 (XLV of 1860) Ss. 302 & 307--Explosive Substances Act, (XI of 1908), Ss. 3, 4 & 5--Bomb explosions--Casualities--Maintained by High Court as well--Trial Court convicted the petitioner only on one Court in each case u/S. 302 PPC for more than one murders and u/S. 307 PPC for causing injuries to a number of persons whereas the petitioner should have convicted and sentenced separately for each murder in each case--High Court also omitted to take notice of such illegality--State also did not take up this issue through appeal before High Court nor in Supreme Court--The act of petitioner was not only act of terrorism at national level but also at international level so leniency in the matter of sentence cannot be taken. [P. 59] M & N
(vi) Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 164 & 342--Confession and statement--Voluntaries and truthfulness--Subversive activities--Confessional statement of petitioner was not made in any particular case and he having made disclosure of his involvement in the subversive activities, made a confession--Neither any prejudice in making defence was caused nor the truthfulness and voluntaries of confession was effected--The real thing to determine the question whether the confession was voluntary and true, it would be necessary to examine and compare the confession with the rest of prosecution evidence in order to exclude any possibility or probability of doubt qua its true character. [P. 58] H
(vii) Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 164 & 342--Confession and statement--Involvement in occurrence--Exclusive knowledge--Recovery of fake document--Unimpeachable character of evidence--Question of identification--In addition to confession made by petitioner, his involvement in occurrences stood established by his exclusive knowledge of facts and recovery of fake I.D. Card with his photograph from his possession at the time of arrest--In presence of unimpeachable character of evidence, the question of identification of accused, would be of no significance--The careful analyses of prosecution evidence proved involvement of the petitioner in the incident of bomb blasts the accused being an agent of raw committed the subversive acts secretly at behest of a hostile country with the object and motive to distablize the country by creating unrest and causing harassment among the public through terrorism--The direct evidence would not be available nor it would be fair to expect such evidence in the present circumstance. [P. 58] I & J
(viii) Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 164 & 342--Confession and statement--Judicial confession--Retracted confession--It was not safe to convict the accused on basis of sole judicial confession which subsequently retracted--Evaluation of evidence made by Courts below was not suffering from any factual or legal infirmity of the nature which would suggest material defect in conclusion--The conviction and sentence awarded to the accused was well deserved--Question of sentence is determined in light of nature of offence, particularly in the cases of terrorism or subversive activities--If the charge proves, there would no justification to withhold the maximum sentence, provided under the law--Petition dismissed. [Pp. 58 & 59] K, L & O
Rana Abdul Hameed, ASC for Petitioner.
Ms. Afshan Ghazanfar, AAG Punjab on Court Call.
Date of hearing : 18.8.2005.
Judgment
Muhammad Nawaz Abbasi, J.--The petitioner namely, Manjeet Singh, alias Surbajeet Singh, an Indian National and a condemned prisoner, has sought leave to appeal in these three connected petitions, Bearing No. 529 to 531 of 2003, filed by him under Article 185(3) of the Constitution of Islamic Republic of Pakistan against the separate judgments dated 10.12.2001 passed by a Division Bench of the Lahore High Court whereby the Criminal Appeals Bearing Nos. 105-J, 107-J and 68-J of 1991, respectively, which arose out of the three separate criminal cases registered at police stations Ghaziabad and Anarkali, Lahore, and police station, Kotwali Faisalabad under Sections 302/307 read with Explosive Substances Act, 1908 in which the petitioner having been tried by the Special Court established under Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act XV of 1975) was convicted and sentenced as described hereinafter, were dismissed. These petitions involving common questions of law AND BEING based on the similar facts, are proposed to be disposed of through this consolidated judgment.
URDU
The brief facts in each case relating to the bomb explosion, caused at different places, mentioned in the confessional statement of the petitioner, leading to these petitions, ARE given as under.
Criminal Petition No. 529 of 2003 (JP No. 57 of 2002 (FIR No. 91 of 1990 Dt: 28.7.190).
In this case, an explosion was caused in a Bus Bearing No. LEM 3252 at Chowk Nizamabad in the area of police station Ghaziabad, Lahore, at 12.45 p.m. on 28.7.1990, as a result of which bus was smashed and 12 passengers including Muhammad Iqbal, bus driver, Shaukat Ali bus conductor and Asmat Ali, bus helper, were injured whereas Javed, a minor boy, lost his life. Malik Muhammad Ashraf, owner of the bus and Haji Sultan Ahmed, complainant also witnessed the occurrence. The case was registered under Section 3/4 of Explosive Substances Act, 1908, read with Sections 302/307 PPC, on the same day vide FIR No. 91 at police station Ghaziabad, Lahore. Subsequently, on disclosure of the petitioner in his confessional statement before a Magistrate at Lahore, of his involvement in the above explosion, he was sent up for trial before the Special Court, established under Suppression of Terrorist Activities (Special Courts) Act, 1975 and was charged as under:--
"That you on 28.7.1990, at 12.45 p.m. (noon) you unlawfully and maliciously caused explosion to endanger life and to cause serious injury to property in a Bus No. 3252-LEH at Chowk Nizamabad, within the area of P.S. Ghaziabad, Lahore and thereby committed an offence punishable u/S. 3 of the Explosive Substances Act, 1908 which is a scheduled offence:--
that on the same day, time and place by the above said explosion you caused the death of Javaid a minor of 8 years and thereby committed an offence punishable u/S. 302 PPC, which is a scheduled offence:--
That on the same, day, time and place by the above explosion you caused injury to Shaukat Ali, Ismat, Meraj Bibi, Anwar Bibi, Farrukh Sultana, Inayatullah, Aqila Sunbal, Nusroo Bibi, Jameel Khan, Wajid, Dawood, Mudassar, and thereby committed an offence punishable u/S. 307 PPC which is also a schedule offence."
The petitioner pleaded non guilty to the charge whereupon prosecution placing reliance on the confessional statement of the petitioner, produced its evidence, Haji Sultan Ahmed son of Karam Dad (PW.1), complainant, deposed that he alongwith Muhammad Ashraf, was sitting on a tyre repairing shop when at 12.45 p.m. Bus Bearing No. LEM 3252, owned by Muhammad Ashraf, reached at Nazimabad Chowk and suddenly an explosion took place in the bus as a result of which a body namely, Javed was killed whereas a number of passengers were injured. Shaukat Ali (PW.2) conductor of the bus, indentifying the petitioner in Court, deposed that on the day of occurrence at about 12 noon, before the bus proceeded from Railway Station for Ghaziabad, he noticed that petitioner after boarding on the bus, got down and when the bus reached Nazimabad Chowk at 1240 p.m. as a result of bomb blast in it, he and a number of other persons sustained injuries. Muhammad Arshad son of Barkat Ali (PW. 4) bus driver, while making a similar statement identified the petitioner in the Court as the same person of wheatish complexion and black hair of the age of 25/26 years who while holding a bag in his hand, after boarding the bus, got down while the bus was still at the Railway Station Bus Stand. Syed Abdur Rashid (PW.3) prepared site-plan of the place of occurrence whereas Adam Khan son of Hazrat Khan identified the dead body of Javed, a minor body, who was killed in the explosion. Dr. Shahzad Shamas (PW5) and Dr. Mian Abdur Rauf (PW-6), medically examined the injured persons and issued death certificate of Javed. Inspector Muhammad Sadiq, ATC, Special Branch (PW7), formally arrested the petitioner as accused in this case on 18.2.1991 and partly conducted the investigation. The petitioner was produced by Major Abbas (PW12) of Intelligence Battalion, Lahore, before Muhammad Khalid Zooq (PW-8) Magistrate, Lahore Cantt on 8.9.1990 for recording his confessional statement under Section 164 Cr.P.C. The Magistrate in his statement before the trial Court, deposed that he had warned the petitioner before recording his statement that same could be used against him as evidence and by putting certain questions, informed him that he was not bound to make any statement. The magistrate also deposed that he having got removed his handcuffs and sending all the persons including police officials out of the Court, provided the petitioner, a free atmosphere and sufficient time to things as to whether he should make or should not make the confession and that having observed all legal formalities and satisfying himself that petitioner was volunteered to make confession, recorded his statement. Dr. Tahir Mahmood (PW-9) medically examined the injured persons namely, Nasro daughter of Muhammad Khan, a young girl, Shoukat Ali son of Sardar Ali Conductor of the bus, Mst. Sultana, daughter of Jevon Khan, Azmat Ali son of Muhammad Sardar, helper of the bus, Anwaar Bibi daughter of Maqsood, Meraj Bibi wife of Barkat, Jameel Khan son of Umar Khan, Wajid Dawood and Mudassar and also Javed son of Umar Khan a boy of tender age who subsequently succumbed to the injuries. Zahid Abbas Inspector/SHO, Police Station Ghazi Abad, (PW-10) and Malook Ali, SI (PW-11) conducted the investigation.
Major Ghulam Abbas, Intelligence Battalion, Lahore, (PW-12) stated that petitioner was an Indian national who was arrested from the area of Kasur Border and during the interrogation he disclosed that he was trained by Sri Wasti, a DSP in RAWA for terrorist activities in Pakistan and having disclosed his involvement in the different bomb blasts cases in Pakistan, showed his willingness to make a confessional statement therefore, he was produced before a magistrate at Lahore. This witness also stated that at the time of arrest, petitioner was found in possession of a fake Pakistani National Identity Card bearing the name of Khushi Muhammad son of Allah Bakhsh, resident of Baggo, Tehsil and District Kasur on which the photograph of the petitioner was pasted.
The learned trial Judge, on the conclusion of trial, having found the petitioner guilty of the charge, convicted and sentenced him as under:--
(a) Death under Section 3 of Explosive Substances Act, 1908;
(b) Death under Section 302 PPC for committing murder of Javed, a minor boy, by explosion with direction to pay fine of Rs. 20,000/- and in default of payment of fine to undergo R.I. for one year. Under Section 307 PPC he was convicted and sentenced to R.I. for a term of 10 years for causing injuries to the persons named therein with a direction to pay Rs. 10,000/- as fine and in default of payment of fine to undergo R.I. for six months.
The bomb blast occurrence in this case had taken place at about 7.00 p.m. on 18.5.1990 outside Malik Theatre Cinema, Bhati Gate, Lahore and case was registered under Sections 302/307 PPC read with Sections 4/5 Explosive Substances Act, 1908, vide FIR No. 105 dated 18.5.1990 at police station Anarkali, Lahore, on the complaint lodged by Muhammad Munir, an injured witness. In this explosion, 9 persons were killed and 54 were injured. In consequence to the disclosure made by the petitioner regarding the bomb blast in his confessional statement, he was challaned to face trial before the Special Court established under Suppression of Terrorist Activities (Special Courts) Act, 1975. The petitioner was charge sheeted as under:--
"That you on 18.5.1990 at 7.10 P.M. at Chowk Bhatti Gate, Lahore, unlawfully and maliciously cause an explosion resulting in the death of 9 persons and injuries to 54 persons and thereby committed an offence punishable u/S. 3 of the Explosive Substances Act, 1908.
Secondly on the said date and time being in possession of explosive material and endangered life of person and cause serious injury to property and thereby committed an offence punishable u/S. 4 of the Explosive Sub. Act.
Thirdly on the day and time by causing explosion intentionally cause the death of Mehraj Din s/o Haroon Khan and thereby.
committed an offence punishable u/S. 4 of the Explosive Substances Act.
Fourthly on the same day and time by causing explosion intentionally cause the death of Muhammad Siddique and thereby committed an offence punishable u/S. 4 of the Exp. Sub. Act.
Fifthly on the same day and time by causing explosion intentionally cause the death of Mehar Din and thereby committed an offence punishable u/S. 4 of the Explosive Sub. Act.
Sixthly on the same day and time by causing explosion intentionally cause the death of Mehmood Ahmed and thereby committed an offence punishable u/S. 4 of the Exp. Sub. Act.
Seventhly on the same day and time by causing explosion intentionally cause the death of Manzoor Ahmed and thereby committed an offence punishable u/S. 4 of the Exp. Sub. Act.
Eightly on the same day and time by causing explosion intentionally cause the death of Bilal Mustafa and thereby committed an offence punishable u/S. 4 of the Exp. Sub. Act."
The prosecution in consequence to the plea of not guilty taken by the petitioner to the charge, produced its evidence consisting upon the oral testimony of witnesses. Haji Shah, Moharrar/Head Constable Police Station New Anarkali, (PW-1), on receipt of complaint from Alamdar Hussain Inspector Police recorded he formal report. Muhammad Munir son of Abdul Majeed, an eye-witness deposed that at about 6.00/7.00 p.m. he had gone to see his uncle Muhammad Ashaq who used to sell medicines near Malik Theatre, Cinema Bhati Gate Lahore on a vehicle when all of a sudden, a bomb exploded as a result of which he alongwith a number of other persons, sustained injuries and 6/7 persons were killed. Muhammad Ashraf, (PW-3) stated that on 18.5.1990 in an explosion at about 7.00 p.m. near Malik Theater Cinema Bhati Gate Lahore his brother Muhammad Arshad, who had gone to bazar for purchases was killed. Muhammad Aslam son of Amir Din (PW 4) has also witnessed the occurrence. Muhammad Tufail (PW-5) stated that he was selling medicines near Malik Theater Cinema Bhatti Gate Lahore on a pickup when the petitioner, present in Court, approached him with request for placing his bag there for some time so that he could go to the shrine of Data Darbar and then after placing the bag near pickup, he went to Data Darbar. The witness further stated that after some time, there was a bomb blast as a result of which 6/7 persons were killed and several including him, were injured. Dr. Parvez Rana (PW. 7) issued death certificate of the victims of the occurrence. Muhammad Sadiq, Inspector, ATC (PW8) having obtained custody of petitioner form 4 corps, HQ, Lahore, arrested him on 11.2.1991 and during the investigation, the petitioner having taken the police party to the scene of occurrence, pointed out the particular place where he had kept the explosives. Major Abbas, Intelligence Battalion, Lahore (PW-10) stated that petitioner was given in his custody on 30.8.1990 and during interrogation, he disclosed that he was trained by DSP Sari Wasti of RAW, an Indian Intelligence Agency, for terrorist activities in Pakistan and petitioner having disclosed that he caused explosions at difference places, was volunteered to make a confessional statement before a magistrate. This witness also stated that at the time of arrest of petitioner near Kasur border, a fake NIC of the name of Khusi Muhammad, which was containing photograph of petitioner, was recovered from his possession. Almadar Hussain, Inspector (PW11) conducted investigation of the case and Saeed Khan (PW 12), an other eye-witness of the occurrence deposed that in his presence petitioner posing himself a police official entered in the cinema hall of Malik Theatre Cinema, Bhati Gate, Lahore before the explosion whereas Shoukat Saleem (PW 15) Gate keeper of Malik Theatre Cinema claiming to have identified the petitioner in police custody when he was brought at the spot, stated that he was the same person who despite his resistance posing himself as a havaldar in police department, entered in the hall and after termination posing himself as of film show, there was a bomb blast outside the cinema.
Dr. Ghafoor Ahmed (PW 13) medically examined the injured person, namely, Muhammad Munir s/o Abdul Majid, Iftikhar s/o Nak Muhammad, Afzal Khan s/o Ali Goher Khan, Tanveer s/o Bashir Ahmed, Abdul Karim s/o Kushi Muhammad, Khial Hussain s/o Ghulam Sarwar, Ali Aftab s/o Muhammad Arif, Muhammad Ali s/o Mangta, Ghulam Hussain s/o Sardar Ali, Haji Aslam s/o Muhammad Tufail, Ali Ashgar s/o Muhammad Ashiq, Muhammad Munit s/o Muhammad Yaseen, Aslam s/o Sultan Mehmood, Muhammad Aslam s/o Rang Ali, Ahmed Ali s/o Muhammad, Muhammad Arshad, Hafiz Muhammad Ramzan s/o Ahmed Yar, Munir Ahmed s/o Ghulam Din, Shahnawaz s/o Siraj Din, Muhammad Aslam s/o Ameer Din, Mushtaq s/o Allah Ditta, Shahid s/o Sadiq, Shafi Muhammad s/o Ghulam Muhammad, Sultan s/o Muhammad, Din Muhammad s/o Ghulam Habib, Abdur Rashid s/o Ch. Bassa, Mushtaq s/o Abdur Rehman, Muhammad Ali s/o Ghulam Muhammad, Saeed Khan s/o Muhammad Tzar, Zahid Iqbal S/O Muhammad Din, Muhammad Asif Ali s/o Muhammad Ali Khan, Ahmed Ali s/o Sardar Din, Muhammad Ibrahim s/o Shah Gul, Baber s/o Muhammad Sharif, Haji Habib Ullah s/o Karim Bakhsh, Sohail Ahmed s/o Abdul Aziz, Muhammad Bashgir s/o Muhammad Ismaeel, Habib Ahmed s/o Saleem Ahmed, Muhammad Khan s/o Ghulam Muhammad, Muhammad Shafi s/o Fazal Haq, Muhammad Hafeez s/o Siraj Din, Khadim Hussain s/o Ghulam Hussain, Ijaz Ahmed s/o Muhammad Yousus, Muhammad Arif s/o Babu Muhammad Hussain, Bashir Ahmed s/o Noor Muhammad, Abdul Hameed s/o Muhammad Bakhsh, Raja s/o Muhammad Hussain, Riaz s/o Sohawa, Taj Ali s/o Musafar Khan, Saghir Ahmed s/o Khilal Ahmed, Javed Iqbal s/o Muhammad Ashraf, Bashir Ahmed s/o Noor Muhammad, Fayyaz Hussain s/o Shera, Mehmood Ahmed s/o Umer Din, Abdul Razzaq s/o Abdul Rahim, Bilal Mustafa s/o Qaiser Mustafa, Muhammad Yaqoob Allah Rakha, Muhammad Rafique s/o Muhammad Ali, Baber s/o Wali Muhammad, Muhammad Isa s/o Pir Bukhsh, Muhammad Amin s/o Muhammad Sharif, Syed Abdur Rahim Kazmi, prepared site plan of the occurrence.
Abdur Rashid son of Channan Din claimed that petitioner while in police custody, pointed out the place of explosion in his presence and Iftikhar Ahmed Khan (PW18) Medical Officer, issued death certificate of the deceased.
(a) Death penalty under Section 3 of the Explosive Substances Act 1908;
(b) Death under Section 302 PPC for causing death of Miraj Din, Muhammad Siddique, Mehr Din, Mehmood Ahmed, Manzoor Ahmed, Bilal Mustafa, Muhammad Arshad, Shaukat Jan and Muhammad Ashiq. With a fine of Rs. 20,000/- and in default of payment of fine to undergo R.I. for one year.
(c) R.I. for 10 years under Section 307 PPC on each count for causing injuries to 54 persons with fine of Rs. 10,000/- and in default of payment of fine to under R.I. for six months.
The occurrence of bomb blast in this case had taken place at 3.10 p.m. on 30.8.1990 in Bhawana Bazar Faisalabad in which Muhammad Yasin, Marriam Riaz, Riffat and a child Irfan were killed and many others, were injured. The case under Section 3 of the Explosive Substances Act, 1908 read with Sections 302/307 PPC was registered against the unknown culprits on the same day vide FIR No. 187 of 1990 at Police Station, Kotwali Faisalabad. In consequence to the disclosure made by the petitioner in his confessional statement before a Magistrate at Lahore, for causing the explosion in question, he was sent up to face the trial before the Special Court established under Suppression of Terrorist Activities (Special Courts) Act, 1975 (XV of 1975) and was charged as under:--
"That you on 30.8.90 were in possession of Explosive Substances which you exploded at 3.45 p.m. in Bahawana Bazar Faisalabad within the area of P.S. Kotwali, Faisalabad and thereby committed an offence punishable u/S. 3 of the Explosive Substances Act.
Secondly on the same day, time and place as a result of this explosion caused by you maliciously four persons died on the spot which constitutes the offence punishable u/S. 302 PPC.
Thirdly on the same day, time and place as a result of this explosion caused by you maliciously 23 persons received injuries and thereby committed an offence punishable u/S. 307 PPC, all the offences are scheduled offence and are triable exclusively by this Court."
The petitioner pleaded not guilty to the charge whereupon prosecution produced its evidence. Dr. Muhammad Aslam and Dr. Qaiser Abbas (PWs 12 and 13) respectively medically examined the injured and also issued death certificate of the deceased. The eye-witnesses account was furnished by Muhammad Ilyas (PW-1). Sheikh Muhammad Ijaz (PW 2), Muhammad Ijaz (PW3), Rana Ijaz Hussain (PW-6), Muhammad Akram (PW-8) and Muhammad Ehsan (PW-9). Muhammad Saleem (PW-10) stated that he was running a shop in Bahawana Bazar, Faisalabad near the place where the explosion was caused and shortly before the explosion, petitioner had visited his shop. He claimed to have identified the petitioner while he was brought by the police at the spot in custody and also subsequently in the Court. Rana Ijaz Hussain (PW-6) also identifying the petitioner claimed to have seen him placing a bag near the place of occurrence before the bomb blast. Muhammad Khalid Zooq, Magistrate, Lahore Cantt recorded confessional statement of petitioner and Major Ghulam Abbas of Military Intelligence Battalion, Lahore, after necessary investigation, produced the petitioner before the magistrate for recording his confessional statement. Muhammad Sadiq Inspector Police (PW-7) conducted the investigation.
The petitioner in his statement under Section 342 Cr.P.C. denied the charge and taking the similar plea as was taken by him in the connected cases, pleaded that in fact one Manjeet Singh was arrested by the Army People who was subsequently let off and he was substituted as an accused. The learned trial Judge having found the petitioner guilty of the charges convicted and sentenced him as under:--
(i) Death under Section 3 of Explosive Substances Act, 1908.
(ii) Death under Section 302 PPC for causing death of Riffat Parveen, Irfan, Muhammad Yasin and Amanat Ali, with and a fine of Rs. 50,000/- and in default of payment of fine to undergo R.I. for two years;
(iii) R.I. for 10 years for causing injuries to 23 persons, with a fine of Rs. 20,000/- under Section 307 PPC and in default of payment of fine to undergo R.I. for one year.
The prosecution in addition to the judicial confession of the petitioner also relied upon the ocular account of the injured witnesses, the magistrate who recorded his statement and the Army officer who initially interrogated the petitioner and produced him before the magistrate. The petitioner however, subsequently retracted the judicial confession made by him before a magistrate at Lahore in his statement under Section 342 Cr.P.C. before the trial Court.
Learned counsel for the petitioner challenging the admissibility of the judicial confession and the legality of conviction and sentence awarded to the petitioner on the basis of his confession raised the following contentions in support of these petitions:--
(a) The confessional statement of petitioner recorded under Section 164 Cr.P.C. by the Magistrate was suffering from a serious legal infirmity as petitioner was arrested on 30.8.1990 and he was produced before a Magistrate by an officer of Military Intelligence Battalion on 8.9.1990 after keeping him in illegal custody for either days. In support of his contention, learned counsel submitted that there was nothing on record to show that in the intervening period, the petitioner was produced before any Court and in view thereof, no sanctity could be attached to the confessional statement which was not admissible in evidence to be used for conviction.
(b) The confessional statement of the petitioner was not recorded in any particular case and a general confession, would not be considered as legal evidence for conviction and in any case since the confessional statement of the petitioner was not recorded in accordance with the procedure provided in law and High Court Rules and Orders, therefore, it was bound to be ruled out of the consideration.
(c) The truthfulness of the plea of substitution taken by the petitioner in his statement under Section 342 Cr.P.C. in all the three cases as Sarbjeet Singh and Manjeet Singh are two different persons and petitioner is Sarjeet Singh whereas initially Manjeet Singh was taken into custody as Suspect but subsequently he was let off and petitioner was substituted as accused in the above bomb blast cases.
(d) The identification of the petitioner claimed by the witnesses while he was in police custody was not an admissible evidence and his identification in the Court was not reliable as no identification parade of the petitioner was held in jail and he was frequently shown to the witnesses before and after commencement of the trial;
(e) That except uncorroborated retracted judicial confession of the petitioner, there was no other evidence direct or circumstantial, to connect the petitioner with the crime for which he was convicted. In nutshell, learned counsel argued that petitioner was entitled to acquittal as the evidence on record was not at all sufficient to bring home his guilt beyond doubt.
Learned Assistant Advocate General on the other hand, has contended that there was ample evidence of the identification of the petitioner as real culprit in all the three cases and the two Courts having concurrently found the confessional statement of the petitioner voluntary, truthful and confidence inspiring, held him guilty therefore, there would be no reason to differ with the judgments of the High Court impugned in these petitions.
The modus operandi of commission of offence in the above referred three cases of bomb blasts was the same and the main evidence on the basis of which the petitioner was found guilty of the charges in all these cases, was his own confessional statement. The corroborative evidence produced by the prosecution to prove the facts relating to the happening of occurrences of bomb blasts in which a number of innocent persons were killed and injured, may not be independently, sufficient to prove the charge against the petitioner and establish his participation in the occurrence, therefore the essential question for consideration in this case would relate to the admissibility of the retracted judicial confession and its evidentiary value for the purpose of conviction. The Court should be very careful in ascertaining the true character of the confession for conviction and must consider the reasons given for retraction of the confession to find out the truth in such reasons before making use of the confession for conviction.
This is settled law that a retracted confession either judicial or extra judicial, if is found truthful and confidence inspiring and also qualifies the test of voluntariness, can be used for conviction without looking for any other sort of corroboration. The petitioner, an Indian citizen and being an illegal immigrant while was working as an agent of RAW (an Indian Intelligence Agency) in Pakistan was arrested as suspect and during the interrogation, disclosed that he was deputed to commit terrorist activities in Pakistan and was involved in the bomb blast cases referred hereinbefore.
The petitioner having disclosed his mission in Pakistan, showed his willingness to make a confessional statement, therefore, he was produced before a Magistrate, who after satisfying himself about the willingness and voluntariness of the petitioner to make the confessional statement, recorded his statement wherein he disclosed the manner in which he caused the explosion at Lahore and Faisalabad.
Mr. Khalid Zooq, magistrate who recorded the confessional statement of the petitioner was examined as witness in each case and he categorically stated that he having observed all the formalities strictly in accordance with law and putting the essential questions to the petitioner that he was not bound to make any statement and having given sufficient time to him to think as to whether he should make a confessional statement or not recorded his statement in camera. The magistrate having got the handcuffs of the petitioner removed and by sending all persons out of the Court room, before recording his statement, warned him that confessional statement could be used against him as evidence.
There is no cavil to the general rule that it is not prudent to base the conviction in a criminal case only on the strength of retracted confession without independent corroboration in necessary particulars and the Court is under obligation to inquire into all the material points and surrounding circumstances to satisfy itself regarding the truthfulness and voluntariness of the confession but it is not an inflexible rule that retracted confession cannot be made basis of conviction without independent corroboration rather the rule of corroboration is a rule of abundant caution which is insisted only to exclude any possibility of doubt qua the guilt of a person. The law is that a retracted confession can be legally taken into consideration against the maker, if the confession is found true and voluntary and can also be used as sole evidence for conviction without any corroboration if the Court is satisfied about its voluntary character and truthfulness. This Court in the State vs. Minhum (PLD 1964 SC 813) held as under :--
"Retracted confessions, whether judicial or extra-judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. As against the maker himself his confession, judicial or extra-judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law.
Unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true."
In the present case, it is established from the testimony of the magistrate who recorded the confessional statement of the petitioner and major Abbas who initially interrogated him that the judicial confession made by the petitioner was voluntary and true and the procedural defect, if any, in recording the statement stood removed by the question put by the magistrate to the petitioner to the effect that he was not bound to make any statement and if a confessional statement was made by him, the same could be used against him as evidence. It is pertinent to point out that petitioner did not directly or indirectly take the plea before the Court at any stage that the confession was involuntary.
The confessional statement of the petitioner was recorded on 8.9.90 and he for the first time in his statement under Section 342 Cr.P.C. recorded by the trial Court after a period more than one year of his making the statement before the magistrate, retracted the confession and despite having sufficient opportunity in the intervening period to bring to the notice of Court that confession was not voluntary and true he did not orally or by moving an application inform the Court at any stage about his intention to retract the confession so much so, he did not retract the confession when the charge was framed by the trial Court and even in his statement under Section 342 Cr.P.C. before the trial Court he did not plead that his confession was obtained through torture, coercion, inducement or outside pressure. The Supreme Court of India in the case of Shankaria vs. State of Rajasthan (AIR 1978 SC 1399) held as under:
"Another circumstance which militates to some extent against the contention canvassed on behalf of the appellant, is that the confession was not retracted at the earliest. It was made on 14.6.1974. The trial commenced on 10.1.1975 when the charges were framed and read over to the accused. This was the earliest opportunity at which he could retract the confession, particularly when he was defended by an experienced counsel. But he did not do so on this occasion, though he pleaded not guilty to the charges."
"Where the accused, while retracting his confession, did not say that he was tutored by police to make the confession but only said that he made it under compulsion and threat and was false and a perusal of the confessional statement would show that prime facie there was nothing improbable or unbelievable in it; that it appeared to be a spontaneous account, studded with such vivid details about the manner of the commission of the crimes in question, which only the perpetrator of the crimes could know, and the confession received assurance in several material particulars from reliable independent evidence, mainly of circumstantial character, held the confession, coupled with the other evidence on the record, had unerringly and indubitably brought home the charges to the accused."
In view of the legal position discussed above, the mere denial of the petitioner to have not made a confession or the procedural defect in recording the statement as pointed out by the learned counsel would neither effect the admissibility of the confessional statement nor reduce its evidentiary value and similarly, the objection regarding the delay in recording the confessional statement would be of no significance as in such cases of terrorism, the availability of direct evidence would not be possible and if the confession was found true and voluntary, the delay would not be fatal.
There is no rule of criminal administration of justice that the Court having found the retracted confession voluntary and true, must also look for the corroboration and in absence of corroborative evidence conviction cannot be maintained. The retraction of a judicial or extra judicial confession itself is not an infirmity to be considered sufficient to withhold the conviction because the evidentiary value of a confession is not diminished by mere fact that it was retracted by the maker at the trial and thus the independent corroboration from other source direct or circumstantial, can not be insisted in every case as a mandatory rule rather the rule of corroboration is applied as abundant caution and in a case depending entirely on the confessional statement of a person or only on the circumstantial evidence, this rule is applied more cautiously. In the present case it stands proved form the testimony of the magistrate, who recorded the confessional statement of the petitioner and Major Abbas of Intelligence Battalion, who after initial interrogation, produced him before the magistrate that the confessional statement of the petitioner based on truth and he willingly and voluntarily made the confession without any outside pressure, influence or coercion therefore, by mere reason that he subsequently retracted the confession at the trial would not be sufficient to disbelieve the confession or doubt its truthfulness to exclude it from consideration. The oral testimony of the eye-witnesses, who were also victims of the occurrences as well as the circumstantial evidence of recovery of fake Pakistani I.D Card from petitioner and the motive of terrorism through subversive activities to achieve the evil design of creating unrest in Pakistan as a result of which death of number of innocent persons was caused in brutal manner, would sufficiently affirm the truthfulness of the confessional statement of the petitioner and not only reasonably but strongly suggest the involvement of the petitioner in the crime. The contention regarding the substitution of the petitioner has also no substance for the reason either the name of petitioner was Surjeet Singh or Manjeet Singh, he admittedly being an Indian national was arrested as suspect from the territory of Pakistan and on production before a magistrate made full detail of terrorist activities, committed by him in Pakistan, therefore, in these circumstances the substitution which is otherwise a rare phenomenon was not possible. The above facts coupled with the surrounding circumstances, would leave no room for doubt in our mind regarding the truthfulness of the confessional statement of the petitioner and his guilt.
This is correct that the confessional statement of petitioner was not recorded in any particular case and he having made disclosure of his involvement in the subversive activities in Pakistan in detail has made a confession containing detail of all the three occurrences for which he was separately tried and thus neither any prejudice in making his defence was caused to him in any case nor the truthfulness and voluntaries of the confession would be effected by the reason that separate confession in each case was not made. The real question for determination would be whether the confession was voluntary and true which was answered in affirmative. Be that as it may, the question whether confession was true and voluntary or not is necessarily a question of fact and in a petition for special leave to appeal normally neither such question of fact is open to be raised before the Supreme Court nor the conviction and sentence based on concurrent finding of fact, is interfered unless it is shown that such finding was vitiated by error of law or the conclusion of facts drawn at by the lower Courts was patently opposed to the well established principle of judicial approach and criminal administration of justice which would be considered as wholly unjustified and perverse. It was held in Sarwan Singh vs. State of Punjab (PLD 1957 SC (Ind.) 555) as under:--
"Prima facie, whether or not the confession is voluntary would be a question of fact and in an appeal by special leave, the Supreme Court would be reluctant to interfere with a finding on such a question of fact unless it is satisfied that impugned finding has been reached without applying the true and legal tests in the matter."
However, the real test in that confession must not only be voluntary but it must also be true and to ascertain its truthfulness it is necessary to examine and compare the confession with the rest of prosecution evidence to exclude any possibility or probability of any doubt qua its true character.
The petitioner undoubtedly was stranger to the witnesses but in view of the peculiar circumstances of the cases and his exclusive knowledge of the facts regarding bomb explosions mentioned by him in his statement, the question of his identification would be immaterial. The circumstances under which the occurrence took place, would suggest that the witnesses must have seen the petitioner before the explosions near the places of occurrences and could also conveniently identified him but the police did not arrange his identification parade and the witnesses claimed the identification of the petitioner in the Court on the basis of their memory. In addition to the confession made by the petitioner, an Indian national, his involvement in the occurrences, stood established by his exclusive knowledge of the facts disclosed by him in his confessional statement and the recovery of fake national identity card of a Pakistani with his photograph form his possession at the time of arrest, therefore, in presence of this unimpeachable character of evidence, the question of identification of petitioner, would be of no signifance.
The learned counsel for the petitioner has not been able to convince us that the witnesses who sustained injuries in the occurrences and claimed identification of the petitioner in the Court had any personal motive to make a false statements against him or that they were not truthful and reliable witnesses. Learned counsel also has not been able to point out any element of bias or malice of the Army or police officer who interrogated the petitioner or the magistrate who recorded his confessional statement. The careful analyses of prosecution evidence would lead to an irresistible conclusion that none else but the petitioner was responsible for causing bomb blasts in these cases in which a number of innocent persons lost their lives and many sustained injuries. The petitioner an agent of RAW, an Indian Intelligence Agency, had committed the subversive acts of the nature secretly at the behest of a hostile country with the object and motive to destablize the Pakistan by creating unrest, and causing harassment among the public through terrorism and in the above circumstances neither the direct evidence would be available nor it would be fair to expect such evidence in such a case of subversive activities to maintain the conviction. In view thereof, we do not find any substance in the contention of the learned counsel that in absence of direct evidence, it was not safe to convict the petitioner on the basis of his sole judicial confession which was subsequently retracted and award him capital punishment. We having minutely perused the record with the help of learned counsel for the petitioner, have found that evaluation of the evidence made by the two Courts below was not suffering from any factual or legal infirmity of the nature which would suggest material defect in the conclusion regarding the guilt of petitioner concurrently drawn by the two Courts calling for interference of this Court and consequently, we would be of the opinion that the conviction and sentence awarded to the petitioner was well deserved. We find that petitioner was convicted by the trial Court only on one count in each case under Section 302 PPC for more than one murders and similarly under Section 307 PPC for causing injuries to a number of persons whereas he should have been convicted and sentenced separately for each murder in each case and the learned Judges in the High Court also omitted to take notice of this illegality but unfortunately, the State has neither filed any appeal in the High Court nor a petition in this Court in this behalf, we therefore, do not consider to go into this question at this final stage. The act of petitioner was not only an act of terrorism at the national level rather it was an act of international terrorism, the object of which was to disrupt and destroy the national life of the people of Pakistan and the petitioner by committing this heinous offence not only caused loss of life and property of innocent persons but also made an attempt to damage the national integrity and stability of Pakistan. In view of the above, the petitioner would not deserve any leniency in the matter of sentence and we having found no force in the argument of learned counsel that conviction on the basis of sole confessional statement of petitioner, could be considered as a mitigating circumstance for lesser punishment uphold the judgment of the High Court. It may be pointed out that the question of sentence is always determined in the light of the nature of offence and the circumstances under which the offence was committed but in a case of terrorism or subversive activities, if the charge stood proved, there would be no justification to withhold the maximum sentence provided under the law for such offences as the concept of lesser punishment on the basis of mitigation, has no place in such cases of terrorism.
For the forgoing discussion, we do not find any substance in these petitions and the same are hereby dismissed. Leave is refused in all the three petitions.
(Z.A.S.) Petition dismissed.
PLJ 2006 SC 59
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday & Muhammad Nawaz Abbasi, JJ.
GHULAM FARID alias FARIDA--Petitioner
versus
STATE--Respondent
Crl. Petition No. 327-L of 2003, decided of 30.3.2005.
(On appeal from the judgment dated 5.3.2003 of the Lahore High Court, Multan Bench passed in Crl. Revision No. 160/1999).
(i) Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 345 & 561-A--Constitution of Pakistan, 1973 Art. 187--Compundable offence--Conviction and sentence to death--Compromise between the parties--Inherent powers--There is no cavil to the proposition that Courts at all levels can consider the compromise of an offender with victim or his legal heirs as a mitigating circumstances for the purpose of question of sentence in a non-compoundable offence but after final disposal of a criminal matter, Courts cannot assume jurisdiction to re-open the case on merits in collateral proceeding arising out of misc. applications. [P. 63] A
(ii) Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 396 & 412--Criminal revision--Application for acquittal--Compromise basis with legal heirs of deceased--Conviction and sentence for committing an offence of dacoity with murder--Award of death sentence and 10 years imprisonment with direction to pay compensation to legal heirs of the deceased--It is a question for consideration as to whether a Court on the basis of compromise of an offender with victim or with the legal heirs of deceased, can compound an offence which is non-compoundable in statutory law in light of concept of forgiveness in Islam--It is permissible for Courts to give effect to the compromise between the parties at any stage of proceedings before after final conclusion of the matter whereas a compromise in non-compoundable offences, cannot be given legal cover at any stage--Offence of murder punishable with death u/S. 302(a) as Qisas and u/S. 302(b) as Tazir is compoundable under the law but murder taken place during the course of committing dacoity punishable with death u/S. 396 PPC is not compoundable. [P. 63] B & D
(iii) Punishment in Islam--
----There are two kinds of punishment as Hadd or Tazir. [P. 63] C
(iv) Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 309, 310 & 338(E)--Waiver--Compoundable of Qisas (Sulha)--Waiver or compoundable of offences--Offence of dacoity with murder--Trial by special Court under Anti-Terrorism Act, 1997--Conviction and sentence--Leave to appeal--Dismissal thereof--Petitioner filed an application before trial Court for compounding the offence on the basis of compromise in terms of Sections 309, 310, 338(E) which was dismissed. Criminal revision also dismissed by High Court--Leave to appeal was granted to consider the question as to whether the Courts can compound an offence which is non-compoundable in statutory law in light of concept of forgiveness in Islam--The offence of dacoity is not compoundable either under pure Islamic law or under the statutory law of Pakistan--It has no substance that Qatl with no distinction is compoundable in Islam and bar of statutory law would not be applicable--The provision could not be made applicable to give effect to a compromise is a non-compoundable offence under law. [P. 64] E & F
(v) Constitution of Pakistan, 1973--
----Art. 187--Pakistan Penal Code, (XLV of 1860), Ss. 309, 310, 324, 338(E), 338(F) Compromise in a non-compoundable offence--Dacoity committing of--Interpretation and application of provision--Courts can interpret the provisions of law but cannot change and substitute such provision, and cannot go beyond wisdom of law--Question relating to quantum of sentence on the basis of compromise between the parties in such a heinous offence is considered a crime against the society--Petition dismissed. [P. 65] G & H
2004 SCMR 1170, ref.
Qazi M. Salim, Sr. ASC, for Petitioner.
Mr. Nasir Saeed Sheikh, DAG, Mr. Aftab Iqbal Ch. A.G. Pb., Ms. Afshan Ghazanfar, AAG, Syed Sajjad Hussain Shah, AAG, Mrs. Isa Khan, Addl. A.G. NWFP and Raja Abdul Ghafoor, ASC on behlaf AG Sindh for the Respondent.
Date of hearing : 30.3.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This petition is directed against the judgment dated 5.3.2003 passed by a Division Bench of the Lahore High Court, Multan Bench in a Criminal Revision petition arising out of a miscellaneous application filed by the petitioner before the trial Court for his acquittal from the charge under Section 396 PPC on the basis of his compromise with the legal heirs of deceased.
The petitioner alongwith four others, was tried for the charges u/S. 396 PPC read with Section 412 PPC for committing an offence of dacoity with murder, by the Special Court established under Anti-Terrorism Act, 1997, Dera Ghazi Khan and having been found guilty of the charge, was sentenced to death under Section 396 PPC and imprisonment for a term of 10 years with fine under Section 412 PPC with direction to pay compensation to the legal heirs of the deceased. The criminal appeal filed by the petitioner against his conviction and sentence was dismissed by a Division Bench of the Lahore High Court Multan Bench, vide judgment dated 7.10.1997 and further criminal petition for leave to appeal filed by him before this Court, was also dismissed. Subsequently, the petitioner having entered into a compromise with the legal heirs of the deceased, moved an application before the trial Court for compounding the offence on the basis of compromise a in terms of Sections 309 and 310 read with 338 (E) PPC and on dismissal of this application by the trial Court vide order dated 1.7.1999, he filed a criminal revision in the High Court which met the same fate and was dismissed, vide impugned judgment.
The learned counsel for the petitioner has contended that since the legal heirs of Manzoor Amin, deceased have forgiven the petitioner in the name of Almighty Allah, therefore, notwithstanding the statutory provisions of Section 345 Cr.P.C., according to which an offence under Section 396 PPC is not compoundable, it would be deemed to have been compounded as ordained in Ayat Nos. 178 and 179 of Sura Al-Baqar in the Holy Quran, wherein Almighty Allah has commanded as under:--
ye who believe. The law of equality is prescribed to you in cases of murder: The free for the free, the slave for the slave, the woman for the woman. But if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude. This is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty.
In the Law of Equality there is (saving of) life to you, O ye men of understanding; that he may restrain yourselves.
Learned counsel forcefully argued that the law of the Holy Quran is supreme and the statutory law which is in conflict to the law of Quran, must be ignored and that in the light of Philosophy of punishment in Islam, all types of murders are compoundable notwithstanding the reason and the circumstances under which murder is committed. The learned counsel submitted that since the legal heirs of the deceased have forgiven to the offender in the name of Almighty Allah, therefore, the provisions of Section 345 Cr.P.C. of statutory law making an offence under Section 396 PPC non compoundable being not in consonance with the Injunctions of Islam would be deemed to be unIslamic and must be ignored and added that since in consequence to the compromise of the petitioner with the legal heirs of deceased, he has adequately compensated them which fact stood verified from the report sent by the learned Sessions Judge, Layyah to the Deputy Registrar (Judicial) of the Lahore High Court, Multan Bench, therefore, there would be no legal bar in giving effect to the compromise. The learned counsel states that in the light of observation made by the High Court the petitioner has also filed a shariat petition before the Federal Shariat Court, Islamabad on the subject but it has not yet been decided. In short the contention of the learned counsel is that the provision of Section 345 Cr.P.C. cannot curtail the power of the Court to compound a non-compoundable offence if its compoundability is permissible in Islam and consequently, the compromise between the parties notwithstanding the statutory bar could be given effect in terms of Sections 309 and 310 read with 338 (E) PPC. The learned counsel submitted that the murder either committed during the course of commission of an offence of dacoity punishable under Section 396 PPC or under Section 302 PPC is qatal and being commendable in Islam, would squarely fall within the ambit of Sections 309 and 310 read with 338(E) and (F) PPC for the purpose of compensation. The learned counsel next argued that in the alternate, the purpose of lesser punishment and while placing reliance on the judgment of this Court in Muhammad Bashir versus State (NLR 1982 Criminal 190) submitted that in such a case in which murder has been pardoned by the legal heirs of the deceased the High Court, in exercise of its inherent power under Section 561-A Cr.P.C. and this Court under Article 187 of the Constitution of Islamic Republic of Pakistan have unlimited power to consider the question for reduction of sentence of death to imprisonment for life, in the interest of substantial justice.
There is no cavil to the proposition that the Courts at all levels without any legal impediment, while deciding the criminal cases on merits, in the regular proceedings, can consider the compromise of an offender with the victim or his legal heirs, as a mitigating circumstances for the purpose of question of sentence in a non-compoundable offence but after final disposal of a criminal matter, Courts cannot assume jurisdiction to re-open the case on merits in collateral proceedings arising out of miscellaneous application. The petitioner after loosing the case on merits, before the trial Court, the High Court and also before this Court in regular proceedings moved an application to the Court of first instance for his acquittal on the basis of his compromise with the legal heirs of the deceased wherein he also made an alternate prayer of reduction in sentence.
There are two kinds of punishment in Islam "Hadd" and "Tazir". The punishment of Had is in the Will of God whereas any other punishment is called Tazir. Islam recognizes the concept of detriment punishment and also the theory of Tazir. Islam recognizes the concept of detriment punishment and also the theory of repetence for the purpose of reformation and preservation of society and in the light of this concept, the offences in the Islamic Penal Laws are also divided into two categories namely commendable and non-compoundable offences either punishable as Hadd or Tazir. The offences which are compoundbale in Islam, have also been made compoundable under the statutory law and in compoundable offences, it is permissible for the Courts to give effect to the compromise between the parties at any stage of the proceedings before or after the final conclusion of the matter whereas a compromise in non-compoundable offences, cannot be given legal cover at any stage. The offence of murder punishable with death under Section 302(a) as Qisas and under Section 302(b) as Tazir is compoundable under the law but the murder taken place during the course of committing dacoity punishable with death under Section 396 PPC is not compoundable. The careful examination of Ayat Nos. 178 & 179 of Surah Baqara would reveal that there is no conflict of the statutory law to the law of Islam regarding forgiveness as the offence under Section 302 PPC and offence under Section 396 PPC are entirely differently and distinct offences, therefore, notwithstanding the pardon given by the legal heirs of the deceased to the petitioner who has been awarded death penalty under Section 396 PPC he could not avail the benefit of Sections 309 and 310 PPC read with 338 (E) PPC. This Court in Muhammad Rawab vs. State (2004 SCMR 1170) has laid down as under:--
"The provisions as contained in Section 345 Cr.P.C. cannot be stretched too far by including the non-compoundable offence therein under the garb of humanitarian grounds or any other extraneous consideration. The offences committed by the appellant are not of grave and alarming nature but the same are against the society as a whole and cannot be permitted to compound by any individual on any score whatsoever. It may be noted that tabulation of the offences as made under Section 345 Cr.P.C. being unambiguous remove all doubts, uncertainty and must be taken as complete and comprehensive guide for compounding the offences. The judicial consensus seems to be that "The Legislature has laid down in this section the test for determining the classes of offences which concern individuals only as distinguished from those which have reference to the interests of the State and Courts of law cannot go beyond that test and substitute for it one of their own. It is against public policy to compound non-compoundable offence, keeping in view the state of facts existing on the date of application to compound. No offences shall be compounded except where the provisions of Section 345 Cr.P.C. are satisfied as to all matters mentioned in the section."
The offence of dacoity is not compoundable either under pure Islamic Law or under the statutory law of Pakistan, therefore, the contention of the learned counsel that notwithstanding the circumstances under which the murder had taken place, qatl with no distinction is compoundable in Islam and the bar of statutory law would not be applicable, has no substance. There is concept of right of Afv and badal-e-suleh in a case of qatl-i-amd, punishable under Section 302(a) PPC as qisas and this right can also be exercised with permission of Court in a case in which punishment of death is awarded as Tazir under Section 302(b) but the concept of afv and badl-e-Suleh under the existing law has not been made applicable to a case under Section 396 PPC in which death is awarded for murder taken place during the course of committing dacoity and thus the Court cannot competently give effect to a compromise in a non-compoundable offence against the policy of law. The petitioner in the present case was awarded sentence of death under Section 396 PPC for murder as tazir which had taken place during the course of committing dacoity and the offence under Section 396 PPC being not compoundable, the provision of Sections 309 and 310 PPC read with 338(E) PPC could not be made applicable to give effect to a compromise in a non-compoundable offence under the law. In the matter of interpretation and application of provision of Chapter XVI PPC in respect of the offences mentioned therein or the matters ancillary or akin thereto Court can seek guidance form Holy Quran and Sunnah as provided in Section 338 (F) PPC but the Court cannot bring a non-compoundable offence within the purview of Section 345 Cr.P.C. by virtue of Section 338(F) PPC for the purpose of compounding it on the basis of compromise. This is settled law that Courts can interpret the provisions of law but cannot change or substitute such provisions and also cannot be beyond the wisdom of law. The contention of the learned counsel that the compromise between the parties at least could be treated a mitigating circumstance for the purpose of lesser punishment, has also no substance. This Court while upholding the judgment of the High Court by virtue of which conviction and sentence awarded to the petitioner by the trial Court was, maintained, has already dismissed the petition for leave to appeal. The present petition has arisen out of the proceedings in a miscellaneous application moved by the petitioner for his acquittal on the basis of his compromise with the legal heirs of the deceased, therefore, in these proceedings, it was not possible for the High Court to re-open the case on merits in exercise of its powers under Section 561-A, Cr.P.C. and similarly, this Court is not supposed to undertake such an exercise under Article 187 of the Constitution of Islamic Republic of Pakistan and consider the question relating to the quantum of sentence on the basis of compromise between the parties in such a heinous offence which is considered a crime against the Society.
In the light of the foregoing discussion, this petition being devoid of any merit is dismissed. Leave is refused.
(Z.A.Sh.) Petition dismissed.
PLJ 2006 SC 65 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan and Tassaduq Hussain Jillani, JJ.
Mst. NASEEM FATIMA (deceased) through LEGAL REPRESENTATIVES and others--Petitioners
versus
Sh. ALA-UD-DIN and others--Respondents
C.Ps. Nos. 26 & 104-L of 2005, decided on 10.3.2005.
(On appeal from the judgment dated 19.11.2004 passed by Lahore High Court, Lahore in Civil Revisions Nos. 905/2000 & 841/2000)
Constitution of Pakistan, (1973)--
----Art. 185(3)--Concurrent findings of Courts below against petitioners--Petitioner lady had failed twice upto level of Supreme Court--Findings of three Courts involving question of fact would indicate that petitioners were not entitled to indulgence of Court--Petitioners have unjustifiably dragged litigation to such an extent that original vendee and her legal heirs could not enjoy possession of property in question since 24.9.1967, despite having purchased the same from rightful owner through registered deed--Leave to appeal was refused on payment of Rs. 25,000/- as costs in each case. [P. 70] B & C
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 100--Thirty years old document--Presumption--Presumption attached to such document would be rebuttable--Pre-emption, however, is attached only to that document which purports to or is proved to be thirty years old and such document must come through proper custody--Court has discretion to presume that signature and every other part of such document, which purports to be in the handwriting of any person, was in that person's handwriting and that the same was executed by person by whom such document purports to be executed--Such document, however, must be before Court in original--Where original document was not before Court, no assessment can be made by such Court as to whether such document in fact, was thirty years old, as to whether there were any signatures in original on that document whether such signatures were legible, capable of being discriminated or deciphered and capable of being compared with any other signatures--Unless original document was before Court, no such observations can be made--In present case document in original was not produced before Court and even permission to lead secondary evidence was neither asked for not granted--Original document having not been produced, advantage under Art. 100 of Qanun-e-Shahadat cannot be claimed. [P. 69] A
Mr. S.M. Masud, ASC and Dr. Shaukat Hussain, ASC for Petitioners.
Mr. Ahmad Waheed Khan, ASC for Respondents.
Date of hearing: 10.3.2005.
Judgment
Sardar Muhammad Raza Khan, J.--Leave to appeal is sought by the petitioners against the judgment dated 19.11.2004 rendered by a learned Judge in Chambers of Lahore High Court whereby Civil Revisions Nos. 841/ 2000 and 905/2000, filed by the petitioners were dismissed. The facts, the judgment and the parties being common, litigating in the same background, we propose to decide both the petitions through this single judgment.
The property, generally known as 44-Main Samanabad is the bone of contention. It was originally owned by Syed Muhammad Shah who sold the same in favour of Mst. Zubaida Khatoon through a registered deed dated 24.9.1967 for a sale consideration of Rs. 50,000/-. After the sale Syed Muhammad Shah, the owner, alongwith his family remained in possession but thenceforth as a tenant under Mst. Zubaida Khatoon through a rent deed.
Mst. Naseem Fatima, the wife of Syed Muhammad Shah somewhere in the year 1972 filed a suit against her husband that she was in fact the owner of the property on the basis of agreement dated 30.6.1960 whereby the husband had agreed to transfer the same in lieu of dower of Rs. 32,000/- The husband in his written statement, totally denied the execution of agreement dated 30.6.1960 and the fixation of dower as Rs. 32,000/- which, instead, was alleged to be Rs. 32/-. It seems that thereafter he absented himself at some stage and an ex-parte decree was granted in favour of Mst. Naseem Fatima on 1.7.1972. Claiming herself to be the owner of the suit property, she sold the same in favour of Sheikh Muhammad Shafi etc. through a registered sale-deed dated 25.8.1986.
In the meantime Syed Muhammad Shah had applied for getting the ex-parte decree set aside. The same was accepted and the decree, in favour of his wife, was set aside on 5.1.1973. He again moved an application under Order 7, Rule 11 CPC which too was allowed and the plaint was rejected on 17.7.2002. The lady came up against such orders in Civil Revision No. 905 which was also dismissed through the impugned judgment.
On the other hand, Sheikh Ala-ud-Din son of Sheikh Rafi-ud-Din alongwith his five sisters, the legal heirs of Mst. Zubaida Khatoon, brought a suit against Mst. Naseem Fatima, her husband Syed Muhammad Shah and Sheikh Muhammad Shafi etc. that they being owners of the suit property since 24.9.1967 having been purchased from rightful owner Syed Muhammad Shah, his wife Naseem Fatima had not right or title to transfer the same in favour of Sheikh Muhammad Shafi, through a registered deed dated 25.8.1986. This suit was contested by Sheikh Muhammad Shafi whereas Mst. Naseem Fatima was proceeded against ex-parte. The suit was decreed by the trial Court vide judgment dated 9.5.1996. It is pertinent to mention that Syed Muhammad Shah subsequently also filed a suit against Mst. Zubaida Khatoon, claiming that the transfer made by him in favour of the aforesaid lady was not a sale but a mortgage.
Mst. Zubaida Khatoon, on the basis of rent deed, filed ejectment proceedings against Sheikh Muhammad Shafi etc. This was originally dismissed by the learned Rent-Controller but was allowed by the Additional District Judge. The appellate order of ejectment was affirmed by the High Court vide judgment dated 16.12.1979. The ejectment was finally ordered subject to vacation of temporary injunction, issued by the Civil Court. The aforesaid injunction, obtained by Sheikh Muhammad Shafi, came to an end when subsequently he withdrew his suit, which was dismissed as withdrawn. The ejectment order thus became final.
When Mst. Zubaida Khatoon, filed execution proceedings, the aforesaid Sheikh Muhammad Shafi came out within objection petition which was dismissed by the Executing Court on 8.3.1986. This order was set aside on 27.3.1995 but subsequently due to acceptance of Writ Petition No. 6489/95 the appellate order was annulled on 26.6.1996, affirmed by this Court through judgment dated 24.8.1998 in CPLA No. 1609/96, against which the review also failed on 26.11.1998. Mst. Naseem Fatima and Sheikh Muhammad Shafi, having failed in their designs before the High Court, have now come to this Court, seeking leave to appeal.
We have extensively heard the arguments of learned counsel on either side and also examined the entire record of the case. It is to be recalled that the petitioners had failed in their first round up to this Court. The ejectment order had become final.
The first question that requires attention is as to whether the transfer in favour of Mst. Zubaida Khatoon was a sale or a mortgage. Having been struck through a registered deed, its contents would sufficiently prove that the same was a sale-deed. The suit brought by Syed Muhammad Shah, claiming the same to be a mortgage, was withdrawn by the said plaintiff. Rather by filing such suit, it stood indirectly admitted that the property had in-fact been transferred in favour of Mst. Zubaida Khatoon and the same was a sale and not a mortgage.
The next point is to the effect as to whether the suit property had been transferred through an agreement by the husband in favour of his wife Mst. Naseem Fatima in lieu of dower of Rs. 32,000/-. The claim of wife was specifically denied by the husband in his written statement. Nowhere in record, it could be proved that the husband had so transferred the property. Mere agreement did not vest title in the lady and moreover such transfer, if at all, required to be registered compulsorily, which it was not. The benefit of transfer of immovable property without registration as provided under Muslim Family Laws Ordinance can also be not derived because the so-called agreement is dated 30.6.1960 whereas Muslim Family Laws Ordinance happened to be enforced on 24.7.1961.
The entire case of Mst. Naseem Fatima, the petitioner, rests upon the agreement dated 30.6.1960. The discussion on this document is mani-faceted. The first among those is that this is a mere agreement, never converted into a regular sale. It is an admitted principle of law that a mere agreement of transfer does not create title. The second aspect is that this deed, copy Ex-D-4, was not produced in original. Neither the petitioner applied for nor the Court gave permission to prove this document through secondary evidence and hence the so-called proof, furnished by the petitioner, is not legal.
The third one is the privilege, claimed by the petitioner to the effect that it was a thirty years old document, to which certain presumptions are attached under Article 100 of Qanoon-e-Shahadat Order, 1984. It would be convenient to reproduce Article 100 as follows:
"100. Presumption as to documents thirty years old. Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person is in that person's handwriting and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation .........."
A perusal of the above section would indicate that the required presumption at the first place is completely rebuttable. Secondly the presumption is attached only to a document which purports to or is proved to be thirty years old. Thirdly it must come from proper custody. Fourthly the Court has a discretion to presume that the signature and every other part of such document, which purports to be in the hand-writing of any person, is in that person's hand-writing and further that it was duly executed by the person by whom it purports to be executed. From these important ingredients, what follows unavoidably is that such old document must be before the Court in original. In case the original is not before the Court, it cannot make any assessment as to whether it in fact is thirty years old, as to whether there are any signatures in original on the document, whether such signatures are legible, capable of being discriminated or deciphered and further capable of being compared with any other signatures. Unless the original is before the Court, no such observations can be made.
The rebuttable presumption is discretionary and the Court may or may not resort to the presumption, in the circumstances. Such presumption attached to thirty years old document, carries a logical behind, in that, if it is proved to be thirty years old, the chances of forgery are minimized. Moreover the fleeting past of time casts certain peculiar features upon the documents' tenor, the texture, the language, the signature, the thumb-impression, the specific date, the existence of witnesses and the paper which it is written upon. All these features cannot be attended to, examined and appreciated unless the document in original is before the Court. Thus, to derive benefit of oldness of a document for a period of thirty years, it must be produced in original.
In the instant case not only that the document was not produced in original, even permission to lead secondary evidence was neither asked for nor granted. The matter of secondary evidence, however, is of secondary importance. The fact is that admittedly no original of the agreement dated 30.6.1960 was produced in Court and hence no advantage u/S. 100 of Qanoon-e-Shahadat can at all be claimed.
The ex-parte decree based on the aforesaid agreement in favour of Mst. Naseem Fatima was set aside on 5.1.1973, whereas, she executed the sale-deed in favour of Sheikh Muhammad Shafi etc. on 25.8.1986. Where, on the one hand, the lady had no title to transfer in favour of Sheikh Muhammad Shafi, the latter, on the other hand, cannot be dubbed to be a bona-fide purchaser either. Except for the decree and that too ex-parte, the lady had no title and even under decree in question, the subsequent purchaser ought to have had exercised due diligence because in the very suit filed by her, the husband had outright denied the very execution of agreement dated 30.6.1960 and the same ex-parte decree did not exist at the time of sale in favour of Sheikh Muhammad Shafi. He is not entitled at all to the protection of Section 41 of Transfer of Property Act.
Mst. Naseem Fatima had failed twice up to the level of this Court. In the instant round as well, there are concurrent findings of three Courts against the petitioners essentially involving the questions of fact. This by itself is sufficient for us not to show indulgence. Same principle was applicable to the High Court as well which declined to interfere with the concurrent findings of fact arrived at by the two Courts below, not cursorily but by discussing all the pros and cons of the case in the light of available record. It is a case where the petitioners before us have unjustifiably dragged the litigation to such an extent that Mst. Zubaida Khatoon and her legal heirs could not receive and enjoy the possession of the property since 24.9.1967 despite having purchased the same from a rightful owner through a registered deed.
Consequently the leave to appeal is refused and both the petitions are hereby dismissed on payment of Rs. 25,000/- as costs in each case.
(A.A.) Leave refused.
PLJ 2006 SC 70 [Appellate Jurisdiction]
Present: Nazim Hussain Siddiqui, C.J.; Javed Iqbal and Abdul Hameed Dogar, JJ.
PAKISTAN RED CRESCENT SOCIETY and another--Appellants
versus
Syed NAZIR GILLANI--Respondent
C.A. No. 1080 of 1998, decided on 1.6.2005.
(On appeal from the judgment dated 19.3.1997 of Lahore High Court, Rawalpindi Bench, passed in I.C.A. No. 2 of 1992)
Pakistan Red Crescent Society Act, 1920 (XV of 1920)--
----S. 5--Constitution of Pakistan, (1973), Art. 185--Nature and character of Pakistan Red Crescent Society--Pakistan Red Crescent Society whether a person performing function in connection with affairs of Federation or Province--Dismissal of employee of such society--Constitutional jurisdiction--Competency--Pakistan Red Crescent Society cannot be treated as person performing function in connection with affairs of Federation of Province--Fact that President of Pakistan is President of Society does not alter its character--Pakistan Red Crescent Society does not have budget allocations from Federal Government but generaties its budget/income from donation made by public and allocation from International Charitable Agencies--Managing Body of Red Crescent Society has exclusive jurisdiction to frame rules or regulations and no approval of Government was required for the same--Such rules are not statutory in nature, therefore, respondent would not be legally entitled for invocation of Constitutional jurisdictional for seeking his reinstatement--Respondent's remedy against wrongful dismissal or termination is to claim damages--Employee of appellant corporation thus, cannot seek protection under any statutory instrument or enactment, therefore, his relationship with appellant was that of Master and Servant--Judgment of Division Bench of High Court reinstating respondent was set aside as he could not have invoked constitutional jurisdiction of High Court in such matter. [Pp. 77, 78, 79, 80 & 81] A, B, C, D & E
PLD 1975 SC 678; PLD 1984 SC 194; 1995 SCMR 453; 1998 SCMR 60; 1994 SCMR 2232; PLD 1975 Kar. 358; PLD 1990 SC 612; 1995 SCMR 650; PLD 2002 SC 101; PLD 2003 SC 724; 1991 SCMR 1041; 2003 SCMR 291; PLD 2000 SC 869; 1991 SCMR 2434; PLD 2001 SC 549; PLD 2002 SC 830; PLD 1974 Lah. 49; 2004 SCMR 189; PLD 1981 SC 224; PLD 1984 SC 170; PLD 1984 SC 194; 1990 PLC 197; 1989 SCMR 832; 1988 PLC (C.S.) 705; PLD 1990 SC 612; PLD 1961 SC 531; PLD 1966 SC 445; PLD 1966 SC 848; 1970 SCMR 40; 1971 SCMR 566; PLD 1974 SC 146; PLD 1984 SC 194; PLD 1977 Lah. 234; 1983 SCMR 1275; PLD 1959 SC (Pak.) 210; PLD 1992 SC 531; 1987 SCMR 1836; 1990 SCMR 1404; 1988 SCMR 597 & PLD 1999 SC 1106 ref.
Khawaja Muhammad Farooq, Sr. ASC and Mr. Ejaz Muhammad Khan, AOR for Appellants.
Mr. Muhammad Akram Sheikh, Sr. ASC and Ch. Akhtar Ali, AOR for Respondent.
Date of hearing: 16.12.2004.
Judgment
Javed Iqbal, J.--This appeal with leave of the Court is directed against the judgment dated 19.3.1997 passed by learned Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby the Intra-Court Appeal preferred on behalf of Syed Nazir Gillani (respondent) has been accepted and judgment dated 10.12.1991 passed by the learned Single Judge dismissing the writ petition of the respondent has been set aside.
"The respondent challenged termination of his services by the Petitioner No. 1 before the Lahore High Court. Contention raised on behalf of the respondent was that under the Pakistan Red Crescent National Headquarters (Staff) Service Regulations 1974, the Executive Committee of the petitioner was not empowered to terminate the respondent's services. An objection was raised on behalf of the petitioners that the said regulations had no statutory character nevertheless, the petition was allowed by the High Court and the respondent was ordered to be reinstated in service.
Maulvi Anwar-ul-Haq, learned counsel for the petitioners has argued that firstly, even assuming that the said Regulations were framed under the rule making power vesting in the Managing Body of the petitioners under Section 5 of the Pakistan Red Crescent Society Act No. XV of 1920 nevertheless, the said regulations are not statutory in character as no condition has been prescribed in Rule 5 reserving the power of supervision to the Government or any other body but the power to frame regulations has been left to the discretion of the said Society with no protection under the statute itself. Therefore, the relationship between the parties is purely governed by the principle of master and servant. Secondly, the contention was that the respondent was purely governed by a contract of service under which the petitioners had reserved for themselves the right to terminate his services which was within their own discretion. Reliance in this regard has been placed on the Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi (PLD 1975 SC 678), Anwar Hussain v. Agricultural Development Bank of Pakistan (PLD 1984 SC 194), Chairman WAPDA v. Syed Jamil Ahmed (1993 SCMR 346), Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. (1995 SCMR 453) and Habib Bank Limited v. Syed Zia-ul-Hassan Kazmi (1998 SCMR 60).
Mr. M. Akram Shaikh, learned counsel for the respondent on the other hand, had argued that no condition providing for such protection to the regulations has been made in Rule 5 of the said Act and power to frame rules has been left entirely to the discretion of the Managing Body of the society therefore, the said regulations which have strictly been framed within the power conferred upon the Managing Body under the said section have the same force as statutory rules. Reliance has been placed by the learned counsel on the cases of Mrs. Anisa Rehman v. P.I.A.C. (1994 SCMR 2232) and Muhammad Salimullah v. Trustees of the Port of Karachi (PLD 1975 Kar. 758).
In our view, the question riased on behalf of the petitioners requires consideration. Leave is, therefore, granted."
Khawaja Muhammad Farooq, learned Sr. ASC entered appearance on behalf of appellants and argued with vehemence that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice as the learned Lahore High Court has ignored that the services of the respondent were not governed by any statutory rules. It is contended emphatically that the Pakistan Red Crescent Society Act, 1920 (hereinafter referred to as the "Act") does not confer upon the Federal Government or its departments any power to make rules or regulations qua the service of employees of the Pakistan Red Crescent Society. Khawaja Muhammad Farooq, learned Sr. ASC while elaborating the said contention argued that Section 5 of the Act requires the Managing Body of the appellants to make rules for the management, control and procedure of the Society. No approval of the Federal Government is required for such purposes. It is also argued that it is well-entrenched legal proposition that where the Government, while setting up the Corporation, does not reserve to itself the power to regulate the terms of the services of the Corporation employees under the relevant statute and does not prescribe any condition but leaves it to the discretion of the Corporation by empowering it to frame Rules or Regulations in respect thereof without the intervention of the Government then the Corporation will be the sole arbiter in the matter of prescribing the terms and conditions of its employees and will be competent to deal with them in accordance with the terms and conditions prescribed by it. It is pointed out that in the writ petition there was no allegation that the order of termination of service has not been issued by the Competent Authority. It is further argued that the learned Division Bench has erred while holding that the order of termination was passed by some incompetent authority because order dated 10.6.1978 was issued by the Secretary General informing the respondent under directions of the Chairman of the Managing Body of the Society regarding termination of his services after one month's notice in accordance with the terms and conditions of his services duly incorporated in his appointment letter. It is urged emphatically that the learned High Court has ignored that under the relevant rules the Chairman of the Managing Body is also the Chairman of the Executive Body. Khawaja Muhammad Farooq, learned Sr. ASC has referred the provisions as contained in Rule 18(f) of the Act whereby the Executive Body is empowered to perform any duty laid on the Managing Body subject to the condition that any action taken by it shall be informed to the Managing Body during the next meeting. It is pointed out that the decision regarding the termination of respondent's service was taken in the meeting of the Executive Committee dated 8.6.1978 and it was reported to the Managing Body during its meeting held on 21.9.1978 which was subsequently confirmed on 16.12.1978 and accordingly the order was passed in accordance with the rules and regulations. It is contended that for the sake of argument if it is admitted that some irregularities were committed and the regulations in question were not followed in letter and spirit even then it would have no substantial bearing on the merits of the case because all such regulations are not statutory and are directory in nature enacted to run the business of the Society in a befitting manner. Khawaja Muhammad Farooq, learned Sr. ASC on behalf of appellants contended that the dictum laid down in case of Muhammad Saleemullah v. Trustees of the Port of Karachi and others (PLD 1975 Kar. 358) has been misconstrued and misinterpreted which cannot be made applicable to the case of respondent as the regulations framed by the Board of Karachi Port Trust were statutory in nature which aspect of the matter has been ignored by the learned High Court without any rhyme and reason. It is argued that neither the writ petition was maintainable nor the civil suit could have been filed by the respondent for reinstatement and the only remedy available in such like cases is that where wrongful dismissal is alleged, the suit for damages could have been filed by invoking the principle of Master and Servant which escaped from the notice of the High Court causing serious prejudice to the appellant.
Mr. Muhammad Akram Sheikh, learned Sr. ASC entered appearance on behalf of respondent and has strenuously controverted the view point as canvassed at bar on behalf of appellants by supporting the judgment impugned for the reasons enumerated therein with further submission that the rule of Master and Servant does not apply in cases where the terms and conditions of service are regulated by rules irrespective of the fact whether the same are statutory or otherwise. It is pointed out that in case of violation of statutory rules the remedy of an aggrieved person is invocation of Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan as well as a civil suit and in case of non-statutory rules the remedy of Service Tribunal was held to be available. In this regard reliance has been placed on the following cases:
Mrs. M.N. Arshad v. Mrs. Naeema Khan (PLD 1990 SC 612), Walayat Ali Mir v. P.I.A.C. (1995 SCMR 650), Dr. Anwar Ali Sahto v. Federation of Pakistan (PLD 2002 SC 101), Managing Director, SSGC Ltd. v. Ghulam Abbas (PLD 2003 SC 724).
It is also argued that the concept of Master and Servant is no more available as with the passage of time various drastic changes have been made in it and now it has been universally accepted that the right of an individual could not hang to the fancies of individuals yielding State power which is a serious matter to be left to their arbitrary or capricious whims. When the discretion is structured, then adherence to such structured exercise of authority is insisted by all Courts upholding to the principle of rule of law and supremacy of Constitution. In this regard reference has been made to the dictum laid down in case of Walayat Ali Mir v. Pakistan International Airlines Corporation (1995 SCMR 650). Mr. Muhammad Akram Sheikh, learned Sr. ASC by elaborating the said argument further contended that the employees in public undertaking have a fundamental right enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan and such right is not only enforceable horizontally but also vertically. In this regard reference has been made to the case of I.A. Sharwani v. Government of Pakistan (1991 SCMR 1041) and Dr. Naveeda Tufail v. Government of the Punjab (2003 SCMR 291). It is argued with vehemence that the Pakistan Red Crescent Society is not an independent entity and a vital part of its functions have been assigned to the Government hence by no stretch of imagination it can be inferred that the rules and regulations of the Society can be enacted or framed by the Society itself without any interference from the Government. Mr. Muhammad Akram Sheikh, learned Sr. ASC on behalf of respondent specifically mentioned Section 3(i), (ii) (iii) of the Act whereby President of Pakistan is authority to appoint thirty members of the first Managing Body being President of the Society. It is pointed out that pursuant to Section 8(1-A) of the Act, it is the President who appoints the Chairman of the Branch Committee of the Capital of Federation and the Property pertained to the Society vests in the Branch Committee of each province in the manner and to such extent as may be determined by the President of Pakistan. It is pointed out that Vice-President of the Society shall be the Minister Incharge of Health as ex-officio and besides the general meetings are required to be presided over by the President of Pakistan and such meetings are also convened by the President who is also authorized to call extra-ordinary general meeting of the Society whenever so consider. It is pointed out that the President of Pakistan also nominates the Chairman of the Managing Body and also appoints three officers of the Federal Government on the Managing Body. It is also mentioned that the President of Pakistan through Provincial Governors and the President of Azad Kashmir appoints five Chairmen of Branch Committees and one Chairman of Azad Kashmir Branch of the Managing Body. It is next argued that the Society plays a significant role in the affairs of the Federation specially during suffering or distress caused by the operation of war in Pakistan or any other country in which expeditionary forces from Pakistan, may, from time to time, be employed and for purposes cognate to that object and in maintaining Red Crescent Depots for military purposes. Mr. Muhammad Akram Sheikh, learned Sr. ASC after relying upon the various provisions of the Act, as mentioned herein above, concluded that Pakistan Red Crescent Society is not an independent entity having no exclusive domain or function but requires to play a significant role in the affairs of Federation which cannot be done by keeping the Pakistan Red Crescent Society aloof or in isolation. It is next argued that any action of the Pakistan Red Crescent Society is justificiable and subject to judicial review. In this regard reference has been made to the case of Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) and Karachi Development Authority v. Wali Ahmed Khan (1991 SCMR 2434). It is argued that a private body, while performing certain functions, could be subject to the judicial review. In this regard reference has been made to the book titled "Judicial Review of Administrative Action" by de Smith, Woolf & Jowell. It is contended that learned High Court was fully competent to dilate upon the controversy and decide the same pursuant to Article 199 of the Constitution of Islamic Republic of Pakistan whereby such controversy could be examined and decided. In this regard reliance has been placed to the case of Anwar Aziz v. Federation of Pakistan (PLD 2001 SC 549), Tahira Almas v. Islamic Republic of Pakistan (PLD 2002 SC 830). It is argued with vehemence that the functionaries of State, statutory bodies and statutory corporations including statutory Universities were required to act strictly within the defined spheres of their authority conferred by law. Any transgression, abuse of power or colourful exercise thereof by such functionaries was open to judicial review by the High Court in its Constitutional jurisdiction. Reference in this regard has been made to Muhammad Nazir Khan v. Mubashar Hasan (PLD 1974 Lah. 49) and Muhammad Baran v. Member [Settlement & Rehabilitation] (PLD 1991 SC 691). While concluding the said point it is argued that the High Court in exercise of its extra-ordinary Constitutional jurisdiction under Article 199 of the Constitution enjoys very wide and immense powers to correct error, issue any order or direction in the interest of justice and to safeguard the fundamental rights of the citizens guaranteed by the Constitution. Lastly it is argued that the Pakistan Red Crescent Society being a statutory entity cannot violate its own regulations having the sanctity of law and all such actions can be declared null and void.
We have carefully examined the respective contentions as agitated on behalf of the parties and perused the judgment passed by learned Single Bench of the Lahore High Court, Lahore, in writ petition as well as the judgment impugned whereby Intra-Court Appeal was disposed of. After having gone through the relevant record we are of the view that the entire controversy revolves around the legal character of Pakistan Red Crescent Society, which requires determination to set the controversy at naught. There is no cavil to the proposition that the precise and prime object of the Society is to provide relief and other aid to the sick and wounded and other purposes of a like nature. It is to be noted that the nature and character of the Pakistan Red Crescent Society was examined in Ziaullah Khan Niazi v. Chairman Pakistan Red Crescent Society (2004 SCMR 189) and it was observed as follows:
"5. We have heard the learned counsel for the parties at length. We find that the respondent-Society was constituted by the provisions of Section 2 of the Pakistan Red Crescent Society Act (XV of 1920) (hereinafter referred to as the Act). Its operational area covers the whole of Pakistan. The President of Islamic Republic of Pakistan is the President of the Society as provided by Section 3 of the Act. By Section 4 of the Act it is a body corporate having perpetual succession and a common seal with power to hold and acquire property, movable and immovable and may sue or be sued by the name of the Society. As enumerated in the General Principles of Society, its object and principal aims include the prevention and alleviation of the suffering with complete impartiality both at national and international level and to render voluntary aid to the sick and wounded of the armed forces in times of war in accordance with spirit and conditions of the Geneva Conference and the Treaties of Red Cross to which Pakistan has given its adhesion. The Act, being an existing law was amended by the Central Legislature/ Parliament from time to time. The Society cannot be treated as a person performing functions in connection with the affairs of the province. Therefore, the employees of the Society cannot be treated as civil servants of the Province of Punjab, by any stretch of imagination. They cannot invoke the jurisdiction of the Punjab Service Tribunal merely on the ground that they are employed in the provincial branch of the Society. The impugned judgment of the Tribunal suffers from defect of jurisdiction."
A careful perusal of the above-mentioned observations would reveal that it has been decided in a categoric manner that the Pakistan Red Crescent Society cannot be treated as a person performing function in connection with the affairs of the Federation or Province. We are conscious of the fact that the President of Pakistan is the President of the Pakistan Red Crescent Society and Minister Health, Government of Pakistan, is the ex-officio Vice-President but it would have no substantial bearing on the legal character of the Society because no budget allocation has been made by the Federal Government and no share capital is involved. The Pakistan Red Crescent Society generates its income from the donation made by public and allocation from International Agencies having a charitable character. Occasionally the Pakistan Red Crescent Society may get some "grant" and "aid" from Government but it cannot be equated to that of "regular budget allocation" and thus its independent entity remains unaffected. Besides that the Managing Body patrons and required to contribute Rs. 10,000/-, Life time Members Rs. 500/- and the Annual Members and Associate Members contribute Rs. 12/- and Rs. 2/- per annum respectively. The Society may request for foreign assistance and donation usually made by various Governments at the time of emergency. Besides that to raise funds, the Society holds Red Cross weeks, raffles Meena Bazar and general appeals soliciting public donations. It is pertinent to point out that under Section 5 of the Act the management and control of the affairs of the Society exclusively vests in the Managing Body. Basically the Society has its genesis in Geneva Convention which was initially held on October 26, 1863 which was followed by Hague Convention and it was universally agreed that Red Cross/Red Crescent Societies are going to be absolutely non-political and they would have access to take care of the sick and wounded without any hindrance. In the light of what has been mentioned hereinabove, the only inescapable conclusion would be that Federal or Provincial Governments have nothing to do with the affairs of the Society and vice-versa.
The other important question would be whether the services of respondent were governed by any statutory rules or otherwise? It transpired from the scrutiny of record that the disciplinary proceedings were initiated against the respondent under the Pakistan Red Crescent Society (Staff) Service Regulation, 1974 (hereinafter referred to as the `Regulation'). First of all we have to examine the nature of the Regulation to see as to whether it is statutory or non-statutory. The Regulation was framed pursuant to powers as conferred upon the Managing Body of the Pakistan Red Crescent Society under Section 5 of the Act, which is reproduced herein below for ready reference:
"5. Power to make Rules.--The Managing Body shall within 6 months of its Constitution make Rules for the management, control and procedure of the Society. The Rules may provide among other matters for the following namely--
(a) the conditions of membership of the Society;
(b) the appointment and term of office of members of the Managing Body;
(c) the choice of representatives of international and other Committees;
(d) representation on the Managing Body of Provincial and State Branch Committees and affiliated societies and bodies;
(e) the Constitution of Finance, Medical and other Committees and the delegation of powers to them; and
(f) the regulation of the procedure generally of the Society and Managing Body."
A careful perusal of the said rule would indicate that the "Managing Body" is competent to frame rules for the management, control and procedure of the Society. The rule-making powers has been conferred upon the Managing Body in an unambiguous manner and from whatever angle it is interpreted no role for framing of rules has been assigned to the Government and more so no such role has been reserved by the Government for itself. It is worth mentioning that no sanction or approval from any quarter including the Government is required for framing of such rules, which shall be framed by the "Managing Body" alone. It can thus safely be inferred that the powers qua rule-making exclusively fall within the jurisdictional domain of "Managing Body" and the ultimate conclusion would be that the rules or regulations framed by the Managing Body are non-statutory. It is well settled by now that "where the Government while setting up a Corporation does not reserve to itself the power to regulate the terms of service of the Corporation's employees under the relevant statute and does not prescribe any condition, but leaves it to the discretion of the Corporation by empowering it to frame rules or regulations in respect thereof without the Government's intervention, then the Corporation will be the sole arbiter in the matter of prescribing the terms and conditions of its employees and will be competent to deal with them in accordance with the terms and conditions prescribed by it. In such a case neither a suit nor a writ petition for the relief of reinstatement will be competent and the remedy of an employee, for wrongful dismissal from or of termination of service will be a suit for damages as the principle of master and servant will be applicable. However, where the terms and conditions of service of an employee of a statutory Corporation is regulated by a statute or statutory rules, any action prejudicial taken against him in derogation or in violation of the statute and/or the statutory rules will give him a cause of action to file a suit or a writ petition for the relief of reinstatement, as the power of the Corporation will be fettered with the statutory provisions and the principle of master and servant will not be applicable. For the purpose of deciding the factum, whether the rules or the regulations of a Corporation have the statutory force, the determining factor will not be their form or name, but the source under which they have been framed." (Emphasis provided) (Chairman WAPDA v. Jamil Ahmed (1993 SCMR 346), Muhammad Yusuf Shah v. Pakistan International Airlines Corporation (PLD 1981 SC 224).
We have also examined the Regulation in the light of criterion as mentioned herein above and we are of the considered opinion that the Regulation having been framed under Section 5 of the Act did not have the statutory force and therefore, the respondent would not be legally entitled for the invocation of Constitutional jurisdiction for seeking his reinstatement. In this regard reference can be made to the following authorities:
"Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224; The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170; Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194; National Bank of Pakistan v. Sindh Labour Appellate Tribunal and others 1990 PLC 197; National Bank of Pakistan v. Manzoorul Hassan 1989 SCMR 832; Muhammad Mumtaz Javed v. Pakistan through Secretary, Ministry of Communication, Government of Pakistan and 2 others 1988 PLC (C.S.) 705 and Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612.
Mrs. M.N. Arshad v. Mrs. Naeema Khan PLD 1990 SC 612, Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531; Zainul Abidin v. Multan Central Cooperative Bank Limited, Multan PLD 1966 SC 445; The Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustom Ali and another PLD 1966 SC 848; Abdul Salam Mehta v. Chairman, Water and Power Development Authority and another 1970 SCMR 40; Lt. Col. Shujauddin Ahmad v. Oil & Gas Development Corporation 1971 SCMR 566; R.T.A. Janjua v. National Shipping Corporation PLD 1974 SC 146; The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170, Anwar Hussain v. Agricultural Development Bank of Pakistan and another PLD 1984 SC 194, Syed Akbar Ali Bokhari v. State Bank of Pakistan and others PLD 1977 Lah. 234; Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224, the Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275.
(i) Chairman of East Pakistan Development Corporation v. Rustam Ali (PLD 1966 SC 848);
(ii) Lahore Central Cooperative Bank Limited v. Pir Shaifullah Shah (PLD 1959 SC (Pak) 210);
(iii) Shahid Khalil v. P.I.A.C. Karachi (1971 SCMR 568);
(iv) A. George v. Pakistan International Airlines Corporation (PLD 1971 Lah. 748);
(v) Muhammad Umar Malik v. The Muslim Commercial, Bank Ltd. through its President, Karachi and 2 others (1995 SCMR 453);
(vi) Habib Bank Limited v. Ziaul Hassan Kazmi (1998 SCMR 60);
(vii) Raziuddin v. Chairman, PIAC (PLD 1992 SC 531);
(viii) Nisar Ahmed v. The Director, Chiltan Ghee Mill (1987 SCMR 1836);
(ix) Sindh Road Transport Corporation v. Muhammad Ali G. Khokhar (1990 SCMR 1404);
(x) Agricultural Development Bank v. Muhammad Sharif (1988 SCMR 597);
(xi) Zeba Mumtaz v. First Women Bank Ltd. (PLD 1999 SC 1106).
We have also examined the case law as referred to by Mr. Muhammad Akram Sheikh, learned Sr. ASC which is not applicable being distinguishable.
The upshot of the above-mentioned discussion is that the appeal is accepted and judgment impugned is set aside. The Constitutional jurisdiction as conferred upon the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan could not have been invoked by the respondent. The respondent may approach the forum concerned for redressal of his grievance, if so desired.
(A.A.) Appeal accepted.
PLJ 2006 SC 81
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Nasir-Ul-Mulk, JJ.
MUHAMMAD ZAHID IQBAL and others--Petitioners
versus
D.E.O. MARDAN and others--Respondents
Civil Petitions No. 350-P to 356-P, 364-P, 377-P to 379-P, 389-P/to 398-P, 406-P to 408-P, 435-P to 468-P, 473-P to 477-P, 492-P to 495-P, 501-P to 506-P, 541-P, 560-P, 597-P, 598-P, 413-P, 478-P to 484-P, 496-P to 500-P, 504-P, 507-P to 509-P, "^532-P, 540-P, 543-P to 545-P, 561-P & 562-P, 603-P to 605-P, 510-P to 512-P, 542-P, 547-P to 549-P, 569-P to 572-P, 576-P to 579-P,, 590-P to 600-P, 550-P to 557-P, 582-P to 584-P and 589-P OF 2005, decided on 26.10.2005.
(On appeal from the judgment dated 11.6.2005 of the NWFP Service Tribunal, Peshawar passed in Appeals No. 2054, 2001, 2353, 2182, 2605, 2037,2203, 561, 2347, 2346, 2352/2000, 258/2003, 116/2002, 15, 16, 17,1184, 1186, 1187/2003, 1237/2002, 158, 298/2004, 2036, 2193, 2889/2000, 935, 944, 1013/2001, 401, 539, 620, 668, 707, 807, 645, 808, 809, 810 to 816, 860, 861, 870, 908, 915, 1027, 1126, 1166/2002, 10,281,282,634/2003, 236/2004, 1020/2001, 1021/2001, 634, 1237/2002, 157/2003, 907/2000, 606/2002, 246, 1163/2003, 260/2001, 686, 714/2002, 244/2003, 344/2005, 344/2004,658/2002, 505/2003 dated 7.7.2005 passed in Appeal No.387/2005, dated 4.7.2005 in Appeals No.361/2003, 638, 644, 700/2002, 229/2003, 32, 341/2004, 1011/2001, 2232/2000, 7, 6/2003, 208, 552/2004, 702/2002, 768, 917, 1282/2003, 634, 1024, 680/2003, 645, 679/2004, 916, 13/2003, dated 4.8.2005 in Appeals No.869/2002, 569, 1002/2004, 737/2002, 345, 1346/2003, 870/2004, 401, 567, 568. 510, 50, 242, 569, 1347, 504, 604, 507, 618/2003, 859/2004, 524, 526, 920/2003 dated 14.4.2005 passed in Appeals No.594, 602, 598, 606, 610, 623, 667, 1079/1997, dated 10.9.2005 in Appeals No.800/2004, 254. 260/2005 and 817/2004, respectively)
NWFP Service Tribunal Act, 1974—
----S. 4--Constitution of Pakistan, 1973, Art. 212--Service matter--Illegalities and irregularities in appointment--Termination of civil servant appointed by using illegal means--Appellants were appointed under the political influence--Terminated by the department with the allegations of irregularity--Petition was filed for their reinstatement--Held: Once the appointees are qualified to be appointed, their services cannot subsequently be terminated on the bases of lapses and irregularities committed by the department itself. Such laxities and irregularities committed by the Government can be ignored by the Courts, only when appointees lacked the basic eligibilities--Orders accordingly. [P. 84] A
1996 SCMR 1185, 1996 SCMR 413, 2002 SCMR 1124, PLD 2003 SC 724, 2004 SCMR 630, 2004 SCMR 303 and 2005 SCMR 85, ref.
Dr. Hussain Khan, AOR for the Petitioners (CPs 350-P, 352 to 356, 389, 397-P, 406 to 408-P/2005).
Mr. Fateh Muhammad Khan, AOR for Petitioners (in CPs. 390-P to 396, 413 & 544-P/2005).
Mr. Khushdil Khan Mohmand, ASC with Mr. Mir Adam Khan, AOR for Petitioners (in CPs. 435-P to 468, 473 to 477, 492 to 495, 502, 503, 505, 506, 541, 560, 597, 478 to 484, 496 to 500, 504, 507 to 509, 532, 540, 544, 545, 561, 562, 510 to 512, 542, 547 to 549, 569 to 572, 576 to 579, 590, 591, 598 to 600, 582 to 584-P/2005).
Mr. Mir Adam Khan, AOR for Petitioners (in CPs. 550-P to 557 & 589-P/2005).
In person for Petitioner (in CPs. 351-P, 377 to 379, 501, 398, 543, 603 to 605-P/2005).
Nemo for Petitioner (in CP 364-P/2005).
Mr. Muhammad Younas Tanoli, Advocate General NWFP, Mr. Imtiaz Ali, ASC & Hafiz Aman, ASC for Respondents (in all cases).
Date of hearing: 26.10.2005.
Judgment
Sardar Muhammad Raza Khan, J.--All the petitions in hand, involving common questions of law and fact are taken up together to be decided through this single judgment.
The services of the petitioners holding different posts of PTC, CT, PET and TT Teachers etc., in education department of NWFP were terminated on different dates in the year 1997. They resorted to the learned NWFP Service Tribunal, Peshawar on the strength of Hameed Akhtar Niazi's case (1996 SCMR 1185) claiming similar treatment which had been meted out to other civil servants who had been earlier reinstated into service by the Tribunal. After hearing the parties at length, the learned Tribunal dismissed all the appeals vide its judgment dated 11.6.2005 and hence these petitions.
Learned counsel for the petitioners seriously challenged the stance taken by the authority that the appointments of the petitioners were politically motivated. The learned counsel while placing reliance on numerous judgments of this Court advanced the argument that if once the irregularity or illegality is committed by the department itself, it cannot turn around and reverse its own order taking benefit of its own illegalities.
This view was negated by the learned counsel for the department on the strength of two Division Bench judgments rendered by this Court in CPSLAs # 274 and 323 of 2004 on 31.10.2003 and CP # 96-P of 2002 on 5.11.2003; both by the same learned Bench. The crux of the aforesaid judgment was that an ill-gotten favour by a civil servant through illegal means should not be endorsed and perpetuated by the Court. This needs to be discussed in some detail.
The factum of illegal appointments allegedly obtained through illegal means of using political pressure etc. and the terminations based thereon, has remained a subject of close discussion by this Court which, for the first time, in Secretary to Government of NWFP Zakat/Social Welfare Department, Peshawar and another vs. Sadullah Khan (1996 SCMR 413) held the view that the Government cannot be allowed to take advantage of its own lapses and illegalities in terminating the services of the Civil Servants provided they were otherwise qualified to hold such posts. This view of the full Bench of this Court was subsequently followed by numerous full Benches of this Court. First in series was a full Bench judgment in Syed Sikandar Ali Shah's case (2002 SCMR 1124) where, otherwise qualified Civil Servants, were reinstated despite irregularities and lapses, because, those were committed by the department itself.
The view consistently remained followed in another full Bench judgment in CPs. # 455 to 457 and 461-P of 2001 decided on 13.10.2003. In the case of Sui Southern Gas Company Limited (PLD 2003 SC 724), a larger Bench consisting of five Hon'ble Judges of this Court, reiterated the above view maintaining the earlier view of this Court in case of Sadullah Khan (ibid). Again in WAPDA vs. Abbas Ali Malano and another (2004 SCMR 630) the same disapproval of Government action was reiterated particularly in case of appointees who otherwise fulfilled the requisite qualifications for the appointment. The judgment in Collector of Customs and Central Excise. Peshawar and 2 others vs. Abdul Waheed and 7 others (2004 SCMR 303) by another full Bench can also be referred to in this behalf. The above view is followed in Muhammad Shoaib's case (2005 SCMR 85) where the majority followed the consistent view as discussed. One learned Judge no doubt gave a dissenting view but the majority verdict consistent with the view followed by this Court since 1996 had to be maintained. The two judgments relied upon by the learned counsel for the Government earlier referred to in some portions of this judgment are also rendered by the same Hon'ble Judge who gave a dissenting view in Muhammad Shoaib's case (supra). We do honour views of the Hon'ble Judge but the principle enunciated by numerous full Benches and one larger Bench of this Court has to be followed and maintained.
Such principle, in nut shell and consistently declared by this Court is that once the appointees are qualified to be appointed, their services cannot subsequently be terminated on the basis of lapses and irregularities committed by the department itself. Such laxities and irregularities committed by the Government can be ignored by the Courts only when the appointees lacked the basic eligibilities, otherwise not.
The aforesaid view if applied to the present cases, the petitioners, we are afraid, cannot draw any benefit therefrom because at the time of their initial appointments, they lacked basic qualifications, requirements and eligibilities. They were appointed as PTC, CT, PET and TT Teachers in the department but they lacked the pre-qualifications and training courses, CT certificates and junior diploma in physical education as pre-requisites for the posts aforesaid. It is obvious that in the circumstances, they could not take advantage of the conditional view taken by this Court.
Most of the petitioners had initially resorted to Peshawar High Court. Their writ petitions were accepted subject to Certain conditions of re-advertisement and interviews in open competition. The petitioners did not either participate in such competition or could not qualify and hence were rightly dislodged by the learned Tribunal. Numerous Teachers appointed against their posts for the last so many years have not been impleaded at all.
The services of the petitioners were terminated in the year 1997 but they resorted to the Tribunal, under Section 4 of the NWFP Service Tribunals Act, 1974 with a delay of five years or more. There are one or two exceptions but their delay was also of more than three years. Their claim that such delay ought to have been condoned, is totally unjust because such condition is highly un-precedented, at the first place and highly unjustified, at the other, so as to jeopardize the interest of those incumbents who are equally in large number and who have not been impleaded at all. The learned Tribunal, in the circumstances, rightly declined to condone the delay.
The upshot of the above discussion is that the petitioners have no merit in their petitions, which are dismissed and leave to appeal refused.
(Waseem Iqbal Butt) Order accordingly.
PLJ 2006 SC 93
[Appellate/Original Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Saiyed Saeed Ashhad, JJ.
STATE & others--Petitioners
versus
ABDUL KHALIQ & others--Respondents
Criminal Petition No. 96, 97, 98, 99, 114, 115, 116, 161, 183-L & Suo Moto Case No. 5 of 2005, decided on 28.6.2005.
(On appeal from judgment of Lahore High Court Multan Bench, Multan Dated 3.3.2005 passed in Crl. A. Nos. 60 to 63, 65 and 66 of 2002).
(i) Constitution of Pakistan, 1973--
----Arts. 185(3), 203(dd), Supreme Court Rules 1980, O. XXXIII, R. 9--Occurrene of zina-bil-jabr--Owing to suspect of having illicit liaison of brother of the complainant with the sister of accused (A.K. & A.D.)--Punchayat was convened and arbitrators were appointed in order to resolve the dispute--It was proposed by the Arbitrators of both sides Mst. N. be married with the brother of Complainant and vise-virsa, the complainant be married with the brother of Mst. N. Even then, the accused did not accept it and all the four persons, committed Zina-bil-jabr with the complainant--The incident was witnessed by the person with open eyes--So accused were arrested and they sent up to face trial--On completion thereof, the accused were awarded different sentences including of death by the A.T.C., assailed to High Court where all the accused except one A.K. were acquitted, sentences were set aside--Appeal of complainant as well as states whereby the acquitted of some of the accused was challenged, was also dismissed the matter was critically examined by he Public at large through the newspapers--Apex Court by taking up suo moto action, the case and granted the law to appeal in all the petitions to examine questions, enumerated in of the Order, referred herein. [P. ] A
(ii) Anti Terrorism Act, 1997 (XXVII of 1997)--
----S. 27-A--Constitution of Pakistan, 1973, Art. 203 DD--Occurrence of Zina-bil-jabr--Awarded of life imprisonment with fine or death--Six persons were found to be involved in the case--They mere awarded sentences of life imprisonment or of death with fine by Court of Anti Terrorism--The sentences were challenged through appeals before the High Court and only one accused A.K. was awarded sentence of 25 years--All the other accused were acquitted on setting aside the sentences awarded by trial Court--The complainant as well as State filled Crl. Petitions challenging the jurisdiction of High Court as well as Anti-Terrorism Court and also Federal Shariat Court--Operation of impugned judgment of High Court was suspended and leave was granted to examine the abovesaid question referred--Leave to appeal granted. [P. 100] B
Mr. Aftab Iqbal Chaudhry, AG (Punjab), Ch. Mushtaq Ahmed, Sr. ASC, Mr. Najeeb Faisal, Addl. AG (Punjab), Mrs. Afshan Ghazanfar, A.A.G. Punjab, Syed Sajjad Hussain Shah, A.A.G. Punjab and Rao Muhammad Yousaf Khan, A.O.R. for Petitioner (in Crl. P. 96-99/05).
Ch. Aitzaz Ehsan, Sr. A.S.C., Mr. Mehr Khan Malik, AOR, Mr. Shaukat Ali Javed, ASC, Mian Tariq Hasan, ASC, Mr. Shahid Saeed, ASC and Mr. Gohar Khan, Advocate for Petitioner (in Crl. P. 14 to 116 & 161/05).
Malik Muhammad Saleem, ASC Mr. Faizur Rehman, AOR (Absent), for Petitioner (in Crl. P. 183-L/05).
Mr. Makhdoom Ali Khan, Attorney General for Pakistan Assisted by Mr. Faisal Naqvi, Advocate, Mr. Aftab Iqbal Chaudhry, AG Punjab Ch. Mushtaq Ahmed Khan, Sr. ASC Mr. Najeeb Faisal, Addl. AG (Punjab), Mrs. Afshan Ghazanfar, A.A.G. Punjab, Syed Sajjad Hussain Shah, A.A.G. Punjab and Rao Muhammad Yousuf Khan, AOR on Court Notice (in S.M. Case No. 5/05).
Malik Muhammad Saleem, ASC and Mr. Faizur Rehman, AOR (Absent) for Respondents (in Crl. P. 96 & 114/05).
Respondents in Crl. P. 97 to 99, 115, 116, 161 and 183/05 not represented.
Dates of hearing : 27 & 28.6.2005.
Order
Iftikhar Muhammad Chaudhry, J.--Listed petitions for leave to appeal have been filed against the judgment of Lahore High Court Multan Bench, Multan, dated 3.3.2005 passed in Criminal Appeals Nos. 60 to 63, 65 and 66 of 2002.
U/s. 7(c) read with Sec. 21(I) ATA 1997 and 149/109 PPC.
Abdul Khaliq, Allah Ditta, Muhammad Fiaz, Ghulam Farid, Ramzan Pachar and Faiz Muhammad.
Life imprisonment with fine of Rs. 20,000/- each and in default whereof to further undergo six months R.I. each.
U/S. 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with Sec. 149 PPC.
Abdul Khalid, Allah Ditta, Ghulam Farid and Muhammad Fiaz.
Life imprisonment plus 30 stripes each with fine of Rs. 20,000/- each and in default whereof to further undergo six months R.I. each.
U/S. 10(4) of Zina (Enforcement of Hudood) Ordinance, 1979 read with Sec. 149 PPC.
Abdul Khaliq, Allah Ditta, Ghulam Farid and Muhammad Fiaz
Sentence of death.
U/S. 11 of Zina (Enforcement of Hudood) Ordinance, 1979 read with Sec. 21(I) of ATA and Ss. 109/149 PPC.
Ramzan Pachar and Faiz Muhammad.
Life imprisonment plus 30 stripes each with fine of Rs. 20,000/- each and in default whereof to further undergo six months R.I. each.
U/S. 10(4) of Zina (Enforcement of Hudood) Ordinance, 1979 read with Section 21(I) of ATA and Ss. 109/149 PPC.
Muhammad Ramzan Pachar and Faiz Muhammad.
Sentence of death.
Above convicts, however, were acquitted from the charge under Section 354-A Cr.P.C., whereas, remaining accused namely Muhammad Aslam Allah Ditta son of Jan Muhammad, Khalil Ahmad, Ghulam Hussain, Nazoor Bakhsh, Rasool Bakhsh, Qasim and Nazar Hussain were found not guilty for all the charges.
(i) Sentence of Abdul Khaliq appellant is covered by Section 10(3) of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 [herein after referred to "Ordinance, 1979], as gang rap is not proved under Section 10(4) of the Ordinance 1979. He is sentenced to 25 years R.I. The sentence of fine awarded by the learned Trial Court is maintained. Benefit of Section 382-B Cr.P.C. was also extended to him. However, he was acquitted of the charge under Section 11 of the Ordinance 1979 and 7(c) read with Section 21(1) of the Anti Terrorism Act, 1997 and 149/109 PPC.
(ii) All other convicts were acquitted on setting aside the sentences awarded to them by the Trial Court.
(iii) Appeal filed by the complainant and the State to challenge the acquittal of some of the accused mentioned above was also dismissed.
It may be noted that State as well as complainant in memo of their respective petitions for leave to appal had also highlighted the jurisdictional question of the learned High Court as well as learned Shariat Court.
Learned Attorney General categorically contended that as the original judgment was passed by the Anti-Terrorism Court, therefore, appeal under Section 27-A of the Anti-Terrorism Act, 1997 was competent before the High Court.
From the arguments so raised by him, following questions emerge for consideration:--
(i) Was the case competently brought before the Anti-Terrorism Court?
(ii) Could Anti-Terrorism Court try offences other than the scheduled offences, which may otherwise fall exclusively in the domain of other Courts?
(iii) Were the appeals of the convicts before the High Court competent?
(iv) Could the Federal Shariat Court under Article 203 (dd) of the Constitution interfere in the appellate order of the High Court?
(a) Delay in lodging FIR constitute no ground for acquittal of accused particularly in the cases pertaining to rape/gang rape, in view of the social conditions of society. [Harpal Singh v. State of Mimachal Pradesh (AIR 1981 SC 361), Mst. Nasreen v. Payyaz Khan (PLD 1991 SC 412), Muhammad Abbas v. State (PLD 2003 SC 863)].
(b) Sole testimony of a victim in rape/gang rape cases is sufficient for the purposes of conviction. [Mst. Nasreen (ibid), Shahzad @ Shaddu v. State (2002 SCMR 1009), Muhammad Abbas (ibid)].
(c) Marks of injuries on the person of prosecutrix are not necessary to secure conviction of an accused, where there is allegation of gang rape. [Shahzad @ Shaddu (ibid)].
(d) Expert evidence is of confirmatory nature, therefore, non obtaining report of expert, to ascertain as to whether clothes of the victim were stained with semen, is not fatal to the prosecution's case. [Muhammad Abbas (ibid)].
(c) Impugned judgment has proceeded mainly on conjectural consideration as is evident from perusal of the impugned judgment.
He also pointed out that there are so many other questions, which are required to be examined in depth if leave is granted to the State. It was also prayed by him that in presence of overwhelming, direct and indirect incriminating evidence, the respondents have been acquitted of the charge, therefore, he prayed for suspension of their acquittal, in exercise of powers under Order XXXIII, Rule 9 of the Supreme Court Rules, 1980.
Learned Advocate General (Punjab) adopted the arguments advanced by the Attorney General for Pakistan. However, he added that considerations prevailed upon the learned High Court are not sufficient to sustain the judgment.
Ch. Mushtaq Ahmed Khan, learned Sr. ASC also appeared on behalf of the State and contended that:--
(i) Learned High Court had no jurisdiction to accept the appeal filed by respondents under Section 27-A of the Anti-Terrorism Act, 1997, in view of the provisions of Article 203 DD of the Constitution read with Section 20 of the Ordinance, 1979.
(ii) The evidence produced by the prosecution has not been appraised by the learned High Court, at the touchstone of the principles pronounced by this Court, from time to time, for the safe administration of justice in criminal cases, as the evidence of prosecutrix and other witnesses has been disbelieved on the basis of technicalities, rendering the impugned judgment not tenable in the eye of law.
(i) The evidence produced by the prosecution to establish guilt had not been appreciated by the learned High Court in its real perspective, due to which serious injustice has been caused to the complainant, who not only gang raped by four persons but she was also forced to parade without clothes in presence of her close relatives i.e. father, uncles and the members of the Punchayat.
On the role of Punchayat, he stated that they had also facilitated the commission of the offence.
(ii) The conclusion drawn by the learned High Court is not tenable, thus cannot sustain in the eye of law.
(iii) The prosecution had proved the act of terrorism/gang rape by the respondents i.e. Abdul Khaliq, etc. with the assistance of others, therefore, following observation from the judgment goes to show that the appeal has not been disposed of according to facts on record:--
"Hence we are satisfied that the allegation of committing sexual intercourse with the complainant (PW-14) is only proved against Abdul Khaliq appellant, which is covered by Section 10(3) Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Since the allegation of gang rape is not proved, his conviction under Section 10(4) is converted to 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and he is sentenced to 25 years R.I. However, the sentence of fine awarded by the learned trial Court is maintained and he shall be given the benefit to Section 382-B, Cr.P.C. So far as his conviction under Sections 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and 7(c) read with Section 21(1), ATA 1997 and 149/109 PPC is concerned, it is admitted fact that there was no purpose of the said appellant to abduct the complainant, who according to the allegation itself, was taken to a few paces and then returned immediately after commission of sexual intercourse. Moreover, the act of Abdul Khaliq appellant was not to intimidate and overawe the community and to create a sense of fear and insecurity in society as in spite of commission of the said occurrence none had reported the matter to the police for about nine days. Therefore, Abdul Khaliq appellant is acquitted of the charges under Sections 11 of the Offence of Zina (Enforcement of Hudood Ordinance, 1979 and 7(c) read with Section 21(1), ATA, 1997 and 149(109) PPC, Cr. Appeal No. 60/2002 to his extent stands disposed of and impugned judgment of conviction and sentence is set aside."
(i) Learned High Court had jurisdiction to dispose of appeal as the respondents were allegedly charge for the gang rape as well as for the offence under Section 7(c) read with 21(1) of the Anti-Terrorism Act, 1997 and the Federal Shariat Court had no jurisdiction to entertain the appeals filed by the convictions.
(ii) The petitioner Abdul Khaliq has been convicted contrary to evidence available on record. Story put forward by the prosecutrix Mst. Mukhtar Mai is full of improbabilities, therefore, he was entitled for the acquittal from the charge under Section 10(3) of the Ordinance, 1979 as well.
(iii) Learned High Court had not believed the same set of evidence against the remaining accused persons but without seeking any corroboration, it has been believed against the petitioner, contrary to the principles of consistency. Similarly, against the remaining respondents, no evidence is available, therefore, High Court on having evaluated the same rightly acquitted them of the charge.
(iv) As now there is double presumption of innocence in their favour, as such acquittal order may not be interfered with, unless the case is made out in view of the principle laid down in Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11).
(Z.A.Sh.) Order accordingly.
PLJ 2006 SC 100
[Appellate Jurisdiction]
Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ.
MUHAMMAD HAYAT and others--Appellants
versus
SARWAR KHAN and others--Respondents
C.A. No. 1575 of 2001, decided on 7.3.2005.
(On appeal from judgment dated 18.5.2001, of the Lahore High Court, Lahore passed in C.R. No. 420-D/1984)
(i) Specific Relief Act, 1877 (I of 1877)--
----S. 42--Punjab Colonization of Government Lands (Punjab) Act (V of 1912), S. 10--Grant of land under Horse Breading Scheme--Agreement/association deed executed by two lessees, real brothers with their father and another brother wherein they agreed to equally share expenses on breeding of mares and after obtaining grant of land under scheme in question, executed registered document in the form of agreement by virtue of which they agreed for joint cultivation of land and for joint ownership on acquisition of proprietary rights of land by lessees--Lesses acquired proprietary right thereafter--One of the lessees acted upon terms of agreement while in respect of the other dispute arose where after he sold land to appellant vendees--Plaintiffs suit relating to their ownership rights and possession was decreed upto High Court--Order of High Court impugned--Execution and existence of registered association deed with contents thereof in respect of land in question, was not disputed--Agreement in question clearly, provided that parties would equally share benefits of grant and would be deemed to be joint owners of land on acquisition of proprietary rights--Notwithstanding grant of proprietary rights in the name of lessees, right of ownership of plaintiffs in land created by agreement in question, would not be extinguished--Plaintiff had proved their un-interrupted posessionary title of land which was not even denied by lessee/vendor, thus, land in question, was deemed to be in continuous possession under family settlement which was sufficient to establish equitable title and in consequence thereto, right of ownership created under deed in question, would not be extinguished by afflux of time. [Pp. 105, 107, 109 & 110] A, B & C
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 11--Res-judicata, principle of--Applicability--Order passed by revenue authorities cannot operate as res-judicata to civil suit involving dispute of title--Collector in his limited jurisdiction could not decide question of title in respect of rights created by registered instrument in property or declare such document void. [P. 110] D
(iii) Transfer of Property Act, 1882 (IV of 1882)--
----S. 41--Specific Relief Act (I of 1877), S. 42--Constitution of Pakistan (1973), Art. 185--Cause of action for filing suit--Relevant date/time--Deed of association as also possessory title of plaintiffs not denied by defendants--Cause of action for filing suit would accrue to plaintiffs on the date of sale of land in question, and not on the date of acquisition of proprietary rights--Defendants/vendees claim for entitlement for protection of S. 41, Transfer of Property Act 1882, was not warranted--Defendant/vendees had not expressly pleaded about lack of knowledge regarding continuous and undisturbed possession of plaintiffs or their claim of ownership in property in question--Even casual inquiry would have put defendants on notice about correct factual position--Transferee must make necessary inquiry about clear title and interest of third person who was in possession of property to show his bonafide and establish that transaction was in good faith--Equitable doctrine envisaged under S. 41 of Transfer of Property Act, 1882, would not be attracted unless partly claiming such interest satisfied requirement of law--Defendant vendees having conscious knowledge that plaintiffs were in possession of land in question, in their own right, thus, failed to prove their bonafide to claim benefit of S. 41 of Transfer of Property Act, 1882--Concurrent findings of three Courts decreeing plaintiff's suit does not suffer from non-reading or misreading of evidence would not warrant interference. [P. 111] E
2002 SCMR 2003; PLD 1960 Lahore 869, ref.
Mian Allah Nawaz, ASC for Appellants.
Mr. Gulzarin Kiani, ASC & Mr. M.S. Khattak, AOR for Respondents.
Ex-parte for Respondents 4 & 10(I-V).
Date of hearing : 7.3.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court has been directed against the judgment dated 18.5.2001 passed by Lahore High Court, Lahore in a civil revision arising out of suit for declaration.
(i) Whether in view of the order passed by the Collector, Shahpur, District Sargodha dated 29.5.1935 whereby Muhammad Afzal was held successor of the estate left by Muhammad Zaman, has the learned High Court not erred in ignoring the said order which had attained finality and held the field?
(ii) Whether the Courts below have not fallen into error by ignoring the agreement entered into by Allah Bakhsh and his three sons on 25.5.1891 which was acted upon in the life time of Allah Bakhsh and his three sons and whether it was not binding on the successor in interest of Zaman, Ghulam Muhammad and Ahmad, sons of Allah Bakhsh?
(iii) Whether after the death of Allah Bakhsh his son Zaman died issueless while Ghulam Muhammad survived by his son Dost Muhammad and Ahmad survived by Sardara and after their death, the property would not devolve upon Muhammad Afzal under Sections 20 to 23 of the Colonization of Government Lands Act, 1912 as held by the Collector in his order dated 29.5.1935".
The learned counsel for the appellants has contended that in the normal circumstances, the document having the status of an agreement, on the basis of which respondents claimed their ownership in the land may have legal force but in the present case, the lease of the land subject matter of dispute, was given to Muhammad Zaman under Horse Breeding Scheme and as per terms of the Scheme, lease would be governed by the rule of primogeniture, therefore, notwithstanding the execution of the agreement in question by the predecessor-in-interest of the respondents, the last lessee having acquired the proprietary rights in his own right would not be bound by this agreement to share the ownership in the land with respondents. The learned counsel argued that at the most, this agreement without conferring title would be operative to the extent of joint cultivation of the land and equal share in its produce but it would have no legal recognition to be treated as a document of title or to create right of ownership under the law. The learned counsel in the alternate argued that the agreement having been not given effect within reasonable time, would be deemed to have lost its legal force and the respondents having waived their right under the agreement, were estopped by their conduct to subsequently file the suit for declaration and permanent injunction. The learned counsel next contended that agreement under discussion was declared void by the Collector through an order passed by him in 1935 in the ejectment proceedings initiated by Muhammad Zaman against Ahmed, his real brother and grandfather of Muhammad Afzal, respondent herein (vendor) and this order of Collector having been not set aside by any higher forum, attained finality which would operate as res judicata to the suit. Lastly, learned counsel argued that in any case, the proprietary rights were acquired by Muhammad Afzal in the year 1948 whereas the suit was filed in 1968 which was hopelessly barred by time and while placing reliance on Muhammad Nawaz Khan versus Muhammad Khan and 2 others (2002 SCMR 2003) contended that the appellants being bona fide purchasers for value, would be entitled to the protections of Section 41 of the Transfer of Property Act, 1882.
Mr. Gulzarin Kiani, ASC learned counsel for the respondents on the other hand argued that the predecessor-in-interest of the respondents, executed the agreement referred to above in the form of an association deed for joint cultivation of land and ultimate joint ownership on acquisition of its proprietary rights which was also acted upon in the spirit in which it was executed. The learned counsel argued that the predecessor-in-interest of the respondents (four brothers and their father) with a view to avail the benefit of Horse Breeding Scheme, jointly purchased two mares to obtain the lease of land but in view of the condition that lease could be given to an individual, they with mutual consent, nominated their two brothers namely, Muhammad Zaman and Ghulam Muhammad to obtain grants, with the understanding that the grant for all intents and purposes, including the ultimate ownership would be treated as joint property of all brothers and their father. In consequence to the above settlement, they jointly brought the land under cultivation by sharing the expenses on its management, development and cultivation and in pursuance thereof, also executed the agreement in question to avoid any subsequent dispute. The learned counsel contended that this registered deed pertaining to the two different grants of two squares of land each was given proper effect to the extent of grant of Ghulam Muhammad whereas the dispute was raised in respect of the two square of land of the grant of Muhammad Zaman and since the respondents were in possession of the land in terms of the agreement in question in their own right, therefore, notwithstanding the entries appearing in the column of ownership in the revenue record in the name of Muhammad Afzal, they would be deemed to be the joint owners of the land and cause of action for filing the suit would accrue to them on the sale of land in 1967 and not from the date of acquisition of proprietary rights. Learned counsel lastly argued that the appellants having the knowledge regarding the possession of respondents in their own right and vendor was not the sole owner, entered into the transaction of sale without taking due care of making an inquiry regarding the interest of respondents in the land, therefore, they were not bona fide purchasers to claim the benefit of Section 41 of the Transfer of Property Act, 1882.
We have heard the learned counsel for the parties at length and perused the record with their assistance. The execution and existence of registered association deed or the agreement as the case may be, with its contents in respect of the land subject matter of grant was not disputed. The instrument provided in clear words that the parties would equally share the benefit of the grant and would be deemed to be the joint owners of land on the acquisition of its proprietary rights. The execution and existence of document being not disputed, the conclusion drawn by the Court of first instance and the appellate Court with respect to the right of respondents was based on the consideration of its genuineness and the perusal of it would not suggest any ambiguity or suspicion in its contents. The document was executed jointly by the original lessees and their brothers and father by virtue of which they agreed for the joint cultivation of the land treating it as a joint property of the family with ultimate right of ownership, therefore notwithstanding the grant of proprietary rights in the name of last lessee in the order of succession, the right of ownership of the respondents in the land created by virtue of the association deed, would not be extinguished. It is appropriate to reproduce the contents of the document, hereunder to ascertain the intention of its executants and to understand the proposition in better manner:--
The association deed in plain words, reflects the character of an undertaking of joint interest in the land obtained on lease which was subsequently capable of conversion into absolute title. The deed association having created a permanent and effective right of the partners vested in them the equitable interest in the land and this purported conveyance securing their interest in the land was not void. In the light of principle of interpretation of document and the rule of construction, the stipulation in the conveyance deed in express words and the plain meaning would certainly suggest no other intention of the parties except to treat the land joint property of the family and Court must give the true meaning to the document as intended rather to the presumed meaning. The careful perusal of deed of association would show that in fact, it contained a declaration to the effect that lessee would hold the property on behalf of the parties to the deed and their successors and this device was adopted to overcome the problem regarding prohibition of grant of joint lease under the Scheme. It was clearly stated in the association deed that the parties to the deed acting on a joint Programme to obtain lease from the Government for common use, nominated two of their brothers to take initiative and obtain lease in their name with the understanding and undertaking of common beneficial interest of all with the equitable ownership of land. It may be seen that the association deed ensured beneficial interest of the lessee as well as co-partners and ultimately on acquisition of proprietary rights of the land, the lessee would be the legal owner and the respondents by virtue of association deed would have equitable title. The inclusion of any beneficial entitlement in the deed, would be an effective declaration of equitable ownership which would conclude the question of title. The original lessee was an active party to the deed and the last lessee having obtained lease hold rights through him on the basis of rule of primogeniture, would be liable to discharge his obligation under the deed because of privity of contract on all the convenants in the deed and would not be allowed to disown the continuing liability on the excuse that he was holding lease hold rights in his own right. It may be seen that a person can establish a good possessionary title on the basis of a document before the commencement of action even though he may have no legal title on the crucial date. The respondents have proved their uninterrupted possessionary title of the land which was not even denied by Muhammad Afzal, vendor was last lessee and thus it was established that land in dispute was in their continuous possession under the family settlement which was sufficient to establish equitable title and in consequence thereto, the right of ownership created under the association deed would not be extinguished by afflux of time.
The plain reading of the deed in question would clearly show that the original parties to it agreed for the joint management of the land and ownership on acquisition of proprietary rights. This registered deed was executed subsequently to the obtaining of grant and in the light of terms contained therein, we would be quite prepared to accept that the parties to it willingly for their common interest, agreed to share all expenses on the horse breeding as well as on the development and cultivation of land. The stipulation in the agreement regarding the joint ownership of land on acquisition of its proprietary rights, having created as inalienable right in favour of respondents in the property, would have the binding force. In consequence thereto, the first question for consideration would be regarding the character of instruments and the nature of possession of respondents and also their legal status vis-a-vis the property. The second question requiring determination would be as to whether for not giving the formal effect to the document in the revenue record, its legal character would be changed and silence of the respondents for a considerable period, would subsequently estopp them from claiming any right in the land by seeking a declaration of title through the remedy of civil suit.
This can not be disputed that an agreement without giving effect may not ipso facto acquire the status of a document to title but in the present case, we find that the agreement in clear terms, created certain rights including the right of joint ownership in the land, therefore, notwithstanding the objection regarding the true character of the document it having been executed by the predecessor-in-interest of the respondents with mutual consent and understanding and also admitted by their successors-in-interest, would be binding on them and Muhammad Afzal, the last lessee, having obtained lease hold rights in the grant through Muhammad Zaman as his successor, who was party to the agreement containing the family settlement in respect of the land, would be bound by it and had to fulfil his obligation in terms of the conditions contained therein. In view of the claim of the respondents that they were in uninterrupted continuous possession of land in their own right through the original lessee under the association deed and did not obtain possession from the last lessee/vendor, the legal position emerged would be that notwithstanding grant of proprietary rights, after death of original lessee, the land would be treated the joint property of the respondents on the basis of agreement/association deed and the status of Respondents 1 to 9 would be that of owners in possession. The appellants without disputing the instrument and its contents in the written statement, while denying the claim of respondents in general terms, admitted the existence of family settlement amongst the predecessor-in-interest of the respondents in respect of the land and this admission being binding would be treated as acknowledgement of the claim of respondents. It would be seen that the document clearly and unambiguously conveyed the intention of the parties to it in respect of the ultimate ownership of the land on acquisition of proprietary rights from the Government, therefore, the contention of the learned counsel for the appellants that the agreement was void and would not create any right in favour of respondents, was without any substance.
The learned counsel for the appellants placing reliance on Hussain Bakhsh and others versus Muhammad Alam and 3 others (PLD 1960 (W.P.) Lahore 869) argued that the instrument in question having been executed subsequent to the allotment of land under the Horse Breading Scheme and the condition contained therein, would be in conflict to the terms of the Government grant as it was an exclusive right of the grantee or his successor as the case may be, to obtain the proprietary rights under the Scheme. We are afraid, the agreement related to an internal arrangement of the original grantee with his brothers and father in respect of the affairs of the land and being not in conflict to the condition of lease was not violative of either of the Scheme in question or law. In the light of foregoing discussion, we having no doubt in our mind regarding the status of respondents as joint owners of the property under the agreement in question would not take any exception to the judgment of the High Court.
This is an admitted fact that the respondents continued in possession of the land under the association deed without any interruption and their status was not that of a tenant or licensee. There is nothing on record to suggest that in the intervening period, the vendor at any stage disturbed, the possession of respondents or denied their claim of ownership in the land rather he by accepting the existence and execution of the agreement in question recognized them as joint owners of the land and acknowledge their right, therefore, the mere fact that after acquisition of proprietary rights, the land was not distributed in terms of agreement or no step was taken by the respondents for giving effect to the association deed in revenue record, would not be sufficient to suggest that their right of ownership created under the agreement, would be extinguished.
The grants of the Government land in Punjab prior to the enforcement of Colonization of Government Lands (Punjab) Act, 1912, certainly would be Governed by Government Lands Tenants (Punjab) Act, 1893 read with Crown Grants Act, 1895. In the present case, the parties without bringing on record the statement of condition of lease under any of the above Acts, admitted that tenancy descended to the last lessee, in the light of rule of primogeniture and in that the claim of respondents was not based on the rule of succession rather their case was that tenancy devolved on the last tenant on the basis of order of succession amongst the descendants of original tenant and the last lessee having not obtained lease in his own independent right, would be bound by the agreement entered into by the original lessee. We without going into the question regarding the terms of tenancy contained in the statement of condition, hold that agreement executed by the original grantee in respect of the land, subject matter of grant, being not against the public policy or law was valid and would be binding on his successors.
The next question requiring determination would be whether the order passed by the Collector in 1935 in the ejectment proceedings would be res judicata to the civil suit or not. The Collector in the above order, observed that the document had no official recognition to create relationship of landlord and tenant inter se parties and except the lessee no other person could claim any right in the lease. It would be seen that there was no conflict in the terms and conditions of Government lease with the association deed executed by the predecessor-in-interest of the respondents for the purpose of management of land as family settlement and ultimate ownership on acquisition of proprietary right. However, the association deed would neither override the terms of lease and create any right of the respondents in the lease hold rights nor would be binding on the Government for the purpose of grant of the proprietary rights in favour of any other person except the lessee. Be that as it may, the order passed by the revenue authorities can not operate as res judicata to the civil suit involving the dispute of title and collector in his limited jurisdiction, could not decide the complicated question of fact in respect of the rights created by a registered instrument in the property or declare such a document void.
In the light of the above discussion and the conclusion, it is clear that the cause of action for filing suit, would accrue to the respondents on the date of sale and not on the date of acquisition of proprietary rights. It may be seen that if there is subsisting right in the property, the right to bring the suit would be continuing so long the right subsist and the date of accruing the right to sue in a suit for declaration, would be the date of denial of such right in the property. In the present case, the overt act of the denial of right of respondents in the property would be the date of sale and not the date of acquisition of proprietary right, therefore, neither the suit would be barred by limitation nor it would be hit by the principle of estopple by waiver and the High Court has rightly affirmed the concurrent findings of the two Courts on these questions.
We, having considered, the question regarding the claim of vendee of bona fide purchasers and their entitlement for the protection of Section 41 of Transfer of Property Act, 1882, find that they without satisfying the requirement of law of taking due care to make necessary inquiry regarding the nature of possession, the interest of respondents in the land and the defect in the title of transfer if any entered into the transaction and claimed the benefit of Section 41 of Transfer of Property Act. The appellants have not expressly pleaded about the lack of knowledge regarding the continuous and undisturbed possession of respondents or their claim of ownership in the and and even a casual inquiry would have put them on notice about the correct factual position. The law is that the transferee must make necessary inquiry about the clear title and the interest of third person who is in possession of property to show his bona fide and establish that transaction was in good faith. The equitable doctrine envisaged under Section 41 of the Transfer of Property Act, 1882, would not be attracted unless the party claiming such benefit satisfied the requirement of law. In the present case, the appellants having conscious knowledge that respondents were in possession of land in their own right have not taken care to inquire from them about the nature of their interest in the property and having shut their eyes to such an inquiry, have not been able to prove their bona fide to claim the benefit of Section 41 of Transfer of Property Act, 1882.
We, having examined the matter in detail with the help of learned counsel for the parties, have not been able to find out any substantial question of law or any defect or error in the concurrent findings of the three Courts of misreading or non-reading of evidence or question of fact or a mixed question of law and facts for our interference.
In the light of the foregoing reasons, this appeal stands dismissed. There shall be no order as to costs.
(A.A.) Appeal dismissed.
PLJ 2006 SC 112
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry; Rana Bhagwandas and Mian Shakirullah Jan, JJ.
KHYBER TRACTORS (PVT.) LTD. through MANAGER--Applicant
versus
PAKISTAN through M/O FINANCE, REVENUE AND ACCONOMIC AFFAIRS ISLAMABAD--Respondent
C. Misc. Appl. Nos. 762 & 763 of 2002 & 2542 & 2543 of 2003, in C.P. Nos. 129 and 130 of 2000, decided on 11.1.2005.
(On appeal against the judgment dated 2.12.1999 passed by the Lahore High Court Lahore in IAC Nos. 790 & 812 of 1998)
Constitution of Pakistan, 1973--
----Art. 187(2)--Supreme Court Rules 1980, O.XXXIII, Rr. 5 & 6--Exemption from customs duty--Petitioners filed writ petition before Lahore High Court claiming therein that they had acquired legal and vested right as regards import of Tractors and in terms of notification in question, they were entitled to benefit of exemption from customs duty, sales tax etc.--High Court concluded that petitions were not competent in as much as, Tractors in question, were received at Karachi and order passed by collector of customs Karachi had been brought under challenge--Petitioners Intra Court Appeal against such order was dismissed as a result whereof judgment of single judge merged into I.C.A., creating legal hurdle for applicants not to seek relief--Petitioners did not seek relief from Karachi High Court which had jurisdiction in such matter--Question of jurisdiction of a forum, is always considered to be very important and any order passed by a Court or forum, having no jurisdiction, even if found to be correct on merits, would not be sustainable--Petitioners were fully aware that leave to appeal had not been granted in their case--Petitioners thereafter submitted two applications claiming same relief as claimed by them in petition for leave to appeal however they withdrew both applications--Dismissal order attained finality as no effort was made by petitioner, for getting the same set aside--No lis was thus, pending before Supreme Court--Relief claimed by applicants in subsequent applications under Art. 187(2) of Constitution and O.XXXIII Rr. 5 & 6 of Supreme Court Rules 1980, cannot be granted to applicant as no lis was pending on the file of Supreme Court--Petition for leave to appeal dismissed earlier cannot be restored on assumption that counsel for applicants had acted under mistake of law. [Pp. 120, 124 & 126] A, B & C
PLD 1997 SC 334; 2000 SCMR 112; 2001 PTD 1829; 1970 SC 573; PLD 1975 678; PLD 1988 SC 20; 1988 CLC 55; PLD 1989 SC 146; 1995 SCMR 584; 1996 SCMR 762; 1998 CLC 298; 1999 SCMR 1782; 1993 SCMR 434; PLD 2001 Lahore 139; 2004 SCMR 1611; AIR 1942 Allahabad 253; 1996 CLC 1630; PLD 1997 SC 11; PLD 1997 SC 337; AIR 1948 P.C. 108; 1979 SCMR 367; PLD 1975 SC 331; PLD 1971 SC 61; PLD 1980 Quetta 1; 1985 SCMR 241; 1985 SCMR 359; PLD 1985 SC 46 and PLD 1995 SC 61, ref.
Mr. S.M. Zafar, ASC with Mehr Khan Malik, AOR for Applicant.
Mr. Makhdoom Ali Khan, Attorney General for Pakistan with Mr. Faisal Hussain Naqvi, ASC, Mr. Suleman Hamid Afridi, A.S.C. and Raja Abdul Ghafoor, AOR for Respondent.
Date of hearing : 11.1.2005.
Order
Ifitkhar Muhammad Chaudhry, J.--Facts giving rise to instant proceedings are re-capitulated as under.
Applicant(s) instituted two writ petitions Being Nos. 7041 and 15788 of 1997 in the Lahore High Court Lahore, inter alia, contending therein that it had acquired legal and vested right as regards the import of Tractors, as per authorization, granted to it under SRO No. 921(I)/1994 therefore, directions be issued not to impose Customs duty, and other charges such as sales tax, etc. and the benefit of exemption already granted under the SRO be ordered to be kept intact.
The writ petitions came up for hearing before learned Single Judge of the Lahore High Court, who vide order dated 17th June 1998 concluded that the petitions were not competent before the Lahore High Court because the Tractors in question were received at Karachi, as such it was Collector Customs (Karachi) whose order/action had been brought under challenge, thus relying upon Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue (PLD 1997 SC 334) Court held that its jurisdiction was ousted and if so advised, the applicant(s) may seek remedy before the High Court of Sindh at Karachi. The applicant(s) filed, Intra Court Appeals Bearing Nos. 790 and 812 of 1998 against the above said orders, before a Division Bench of the same High Court.
It may be noted that prior to institution of aforesaid Writ Petitions, "Fecto Belarus Tractors Limited" [hereinafter referred to as "FBTL" another exporter, had instituted a Writ Petition Being No. 21972 of 1996, against the Ministry of Finance and Agriculture, Livestock, Government of Pakistan and others before the learned High Court wherein following relief was claimed:--
That the Respondents Nos. 1 & 2 may be restrained attempting to withdraw or amend the concessions granted under the Second phase of the Awami Tractor Scheme insofar as they relate to the import of 10,000 tractors by the petitioner as per authorization granted to the petitioner under SRO No. 921(I)/94; and
that the Respondents Nos. 1 & 2 may be directed not to impose any further customs duty, sales tax, regulatory duty, service charges and any other tax or duty on the 10,000 tractors being imported by the petitioner in the public interest.
The petition noted above was disposed of as infructuous on 24th February 1997. ICA No. 84 of 1997 filed against his order was allowed by a learned Division Bench of the High Court 4th August 1997. This Court granted leave to appeal against the judgment of ICA Bench and finally accepted the appeal vide judgment dated 1st September 1999 Government of Pakistan vs. Fecto Belarus Tractors Ltd. (2000 SCMR 112).
In the meantime, ICAs Nos. 790 and 812 of 1998 filed by the applicants came up for hearing and the same were dismissed on 2nd December 1999, in view of above reported judgment announced in the case of Government of Pakistan (ibid).
The applicant(s) questioned the judgment of ICA Bench dated 2nd December 1999 before this Court by instituting CPSLAs. Nos. 129 and 130 of 2000, under Article 185(3) of the Constitution of Islamic Republic of Pakistan.
It is important to note that the respondent in the case of Government of Pakistan (ibid), in the meantime, filed Review Petition No. 80 of 1999, therefore, CPSLAs Nos. 129 and 130 of 2000 vide order dated 22nd May 2000, were directed to be listed alongwith the Review Petition.
Review Petition No. 80 of 1999, was accepted vide judgment dated 19th February 2001 Fecto Belarus Tractors Ltd. vs. Pakistan (2001 PTD 1829) as a result whereof, the judgment dated 1st September 1999 (2000 SCMR 112) was recalled. However, CPSLAs Nos. 129 and 130 of 2000 filed by applicants were left undecided.
Accordingly. CPSLAs Nos. 129 and 130 of 2000 were listed for hearing later on, in pursuance of Applications Nos. 449 and 450 of 2001 dated 1st November 2001, filed by the applicant(s), wherein their emphasis was that as FBTL's case was identical to that of their case, as such the Court ought to have granted same relief to them in view of the order passed on 22nd May 2000, directing that both the matters be listed together. Notices for the first time were issued to the respondents at the leave granting stage. The petitions came up for hearing on different dates during which the respondents sought time to examine "as to whether case of the applicant(s) is identical to the case of FBTL." Hearing took place on 10th January 2002 in presence of the advocates for both the parties when Mr. Asghar Hameed Sheikh, learned ASC for applicant(s) prayed for permission to withdraw the petitions. Thus request made by him on behalf of the applicant(s) was allowed and the order passed reads as under:
"Learned counsel for the petitioner, after arguing the case at a considerable length stated that permission be accorded to him to withdraw these petitions as he contemplates to approach the department for the redressal of his grievance. Other said has no objection.
Petitions are dismissed as withdrawn."
"In view of the aforesaid it is most respectfully prayed that this Hon'ble Court may pass the order that the department is entitled to decide the case of petitioner on merits without being affected by the judgment dated 2/12/1999 of Lahore High Court, Lahore in ICAs Nos. 812/98 and 790/98.
The petitioner respectfully prays for the grant of any other relief and order as this august Court may deem fit and appropriate in law, justice and equity and to prevent the respondents from abusing the process of this august Court under the law and down vide judgment announced on 19.2.2001."
The above applications came up for hearing before the Court, when on 24th July 2003, taking into consideration the earlier record of the case, directions were made to the respondents to pass express order on the prayer of the petitioners, which shall be conveyed to them. The applications were ordered to be kept pending till passing of the order by the respondents within four weeks.
In compliance of above order, the representation submitted by the applicant(s) was dismissed by the Central Board of Revenue, vide letter dated 29th August 2002, contents whereof are reproduced herein below:--
"Please refer to your petition dated 30th July, 2002 on the captioned subject.
"IFTIKHAR MUHAMMAD CHAUDHRY J:--
Learned counsel for the petitioner, after arguing the case at a considerable length stated that permission be accorded to him to withdraw these petitions as he contemplates to approach the department for the redressal of his grievance. Other side has no objection.
Petitions are dismissed as withdrawn.
sd/- Mr. Justice Iftikhar Muhammad Chaudhry
sd/- Mr. Justice Hamid Ali Mirza
sd/- Mr. Justice Tanvir Ahmed Khan"
The Department's counsel, Raja Muhammad Irshad ASC has informed that after pleading the case at a considerable length, the applicant's counsel had prayed for a direction to the Central Board of Revenue to decide the case in question on the basis of the judgment given by the Supreme Court in Fecto Belarus case. The prayer was turned down and the Supreme Court dismissed the petition as withdrawn and no direction was given to the Central Board of Revenue Subsequently CMPs Nos. 762 and 763/2002 were moved by the petitioners for the restoration of CPSLAs Nos. 129 & 130/2002. The Supreme Court, however, did not restore the original CPSLAs but instead directed the department to pass express orders on the petitioner's application within 4 weeks.
I have carefully examined the facts of the case and the legal issues relating to the applicant's case, it is observed that--
(a) the two CPLAs were dismissed as withdrawn by the Honourable Supreme Court vide its judgment dated 10.1.2002 in un-ambiguous and clear order; and
(b) prior to 30th July, 2002 when the applicants moved the subject petition, two self-explanatory Ordinances Nos. XXIV & XXV of 2002 dated 7th June, 2002 have been promulgated (copies enclosed).
Keeping the aforestated facts, the subject petition for the grant of exemptions on the importation of tractors, is regretted.
Sd/-
(Dr. Manzoor Ahmed)
Member (Customs).
"In course of hearing of these petitions, learned counsel had withdrawn the same for approaching the department to seek redress of their grievance, and thus, the petitions were dismissed as withdrawn. It is stated that department had accordingly started to proceed in the matter, but did not accept petitioners' plea and thus, Miscellaneous Application was filed seeking restoration of the petitions which were dismissed as withdrawn, and an order was passed that said petitions would be heard alongwith connected matters.
After hearing Mr. S.M. Zafar, Sr. ASC of this Court we are of the view that this matter should be clubbed with the case of Belarus Tractors, involving the same question of law and facts. However, in the meanwhile, if so advised, petitioners may file a fresh petition assailing the orders passed by the department after dismissal of the petitions as withdrawn, referred to above. Needful shall be done within a week's time."
Thus, applicant(s) instead of challenging the order of dismissal of their representation dated 29th August 2002 before the High Court, instituted two Applications Being Nos. 2542 and 2543 of 2003 under Article 187 of the Constitution of Islamic Republic of Pakistan. The proceedings in the matter of FBTL and Khyber Tractors Ltd. were taken up together for some time but later on they were de-linked from each other vide order 16th December 2003 passed in Criminal Original Petition No. 15 of 2003. [Fecto Belarus Tractors Ltd. vs. Pakistan (2001 PTD 1829)] and were ordered to be heard separately.
Learned counsel for applicant(s) contended:--
(a) That vide order dated 22nd March 2000, applicant(s)'s case was ordered to be heard alongwith case of Fecto Belarus Tractors Ltd. because both the cases involved identical questions of Law.
To highlight this aspect of the case he impressed upon the significance of the words "same case as in Fecto Belarus Tractors Ltd.", which according to him indicates that the Court on having considered the facts of both the cases, passed this order, which was complied with in letter and spirit, as such in the cause list dated 28th September 2000 both the petitions for leave to appeal were fixed alongwith the Review Petition No. 80 of 2000 filed by the FBTL.
(b) That learned counsel appearing for applicant(s) namely Mr. Asghar Hameed Sheikh, Sr. ASC had also argued the case of applicants on merits but the judgment passed in FBTL's case dated 19th January 2001 [2001 PTD 1829] was not applied to their cases, therefore, they submitted CMP. 449 and 450 of 2001, under Article 187 of the Constitution of Islamic Republic of Pakistan read with Rules 5 and 6 of the Order XXXIII of the Supreme Court Rules, 1980 on 13th March 2001, for the redressal of their grievance.
(c) That lack of order in applicant(s) CPSLAs alongwith the case of Fecto Belarus Tractors Ltd. (ibid) has caused prejudice to them due to the act of the Court, whereas "the act of the Court shall prejudice no man cactus curiae neminem gravabit)" therefore, in the interest of justice same relief, which has been given in FBTL's case may be given to applicant(s).
To substantiate his plea he relied upon the following judgments:--
Jagannath Singh v. Dr. Ram Naresh Singh (1970 SCC 573).
Manager, Jammu and Kashmir State Property v. Khuda Yar (PLD 1975 SC 678).
Ghulam Haider v. Raj Bharri (PLD 1988 SC 20).
Muhammad Taj v. Muhammad Rashid (1988 CLC 55).
Rashid Ehsan v. Bashir Ahmed (PLD 1989 SC 146).
Sherin v. Fazal Muhammad (1995 SCMR 584).
Iftikhar Baig v. Muhammad Azam (1996 SCMR 762).
Nasir Ali Shah v. Bashiran Bibi (1998 SCMR 298).
Muhammad Mansha v. Sabir Ali (1999 SCMR 1782).
Namdar Khan v. Muhammad Akram Khan and others (1993 SCMR 434).
Shafqat Iqbal v. Ghulam Rasool (PLD 2001 Lah. 139).
Muhammad Shafi v. Muhammad Boota (2004 SCMR 1611).
Learned Attorney General for Pakistan contended:--
(i) That applicant(s) initially approached learned Lahore High Court, Lahore by invoking its constitutional jurisdiction to claim exemption of Customs duty as well as Sales Tax on the tractors, which were imported and received by them at Karachi Port but the Lahore High Court dismissed the same on 17th June 1998 on the ground of lack of territorial jurisdiction.
(ii) That ICAs filed by the applicant(s) against the order dated 17th June 1998 also failed, may be on some other ground, but without disturbing the findings on the question of territorial jurisdiction of the Court, meaning thereby that the decision of learned Single Judge of the High Court was attained finality.
(iii) That in the petitions filed by FBTL, and by Khyber Tractors Ltd. parties were different like Karachi Port Trust, against which altogether different relief was claimed. Surprisingly, in Writ Petition No. 7041 of 1997 filed by applicant(s) Central Board of Revenue was not arrayed as party against whom actually relief of exemption is being claimed, therefore, both the cases were not identical in substance.
(iv) That no notice of CPSLAs Nos. 129 and 130 of 2000 were issued to the respondents, therefore, without giving them right of hearing, the judgment in FBTL's case could have not been passed in their case.
(v) That CPSLAs Nos. 129 and 130 of 2000 were dismissed as withdrawn on 10th January 2001 at the request of the applicant's counsel namely Mr. Asghar Hameed Sheikh, ASC, who had no cavil with this order, otherwise he could have filed petitions for review of the same under Article 188 of the Constitution of Islamic Republic of Pakistan and the applicant(s) also seemed to be satisfied with the order, as they approached this Court by filing Misc. Applications, expressing grievance that representation filed by them in pursuance of withdrawal order, was not being disposed of by the CBR. Thus, for such reason as well, the matter could not be re-opened without recalling the order dated 10th January 2001.
(vi) That no sooner, the representation filed by applicant(s) before the Department was disposed of on 29th August 2002, they should have availed appropriate remedy against it, but instead of doing so, they filed Misc. Applications Nos. 2542 and 2543 of 2003 under Article 187 of the Constitution of Islamic Republic of Pakistan read with Order XXXIII Rules 5 and 6 of the Supreme Court Rules, 1980, which being not maintainable in law, are liable to be dismissed.
(vii) That in view of facts and circumstances of the case, question for consideration would be whether by the act of the Court by not deciding CPSLAs Nos. 129 and 130 of 2000, filed by the applicant(s) alongwith FBTL's case, injustice has been caused to them and whether the Court should ignore procedural provisions to do complete justice with the applicant(s), particularly when apparently no injustice has been caused to them.
Reliance has been placed by him on Emperor vs. Iqbal Krishna (AIR 1942 Allahabad 253), Muhammad Aslam v. Chairman Provincial Transport Authority (1996 CLC 1630) and Zulfiqar Ali Babu v. Government of Punjab (PLD 1997 SC 11).
Learned counsel who appeared for "Karachi Port Trust" adopted the arguments advanced by learned Attorney General.
A perusal of memo of Writ Petition No. 7041 of 1997 and its reply by the respondents as well as order dated 17th June 1998 demonstrates that Lahore High Court Lahore had no jurisdiction to adjudicate upon the matter because the Tractors were imported/received by the applicant(s) at Karachi, where the concerned Collector declined to grant exemption from Customs Duty and Sales Tax to the applicant(s), therefore, in view of judgment in the case of Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue (PLD 1997 SC 337), it was held that the Lahore High Court had no jurisdiction and petitions were dismissed accordingly. ICA Being Nos. 790 and 812 of 1998 filed by the applicant(s) failed on 2nd December 1999, as a result whereof the judgment of learned Single Judge dated 17th June 1998 merged into it, creating a legal hurdle for the applicant(s) not to seek relief, which was given to FBTL, on accepting its review petition being No. 80 of 1999 on 19th February 2001, without approaching the High Court of Sindh Karachi, having jurisdiction in the matter, because the question of jurisdiction of a forum is always considered to be very important and any order passed by a Court or a forum, having no jurisdiction, even if is found to be correct on merits, is not sustainable. The jurisdiction of a Court lays down a foundation stone for a judicial or quasi judicial functionary to exercise its powers/authority and no sooner the question of jurisdiction is determined in negative, the whole edifice, built on such defective proceedings, is bound to crumble down as held in the case of Pearey Lal v. Nanak Chand (AIR 1948 PC 108), Pervez Iqbal v. Muhammad Hanif (1979 SCMR 367), Chief Settlement Commissioner v. Muhammad Fazil (PLD 1975 SC 331).
It is also imperative to examine whether due to act of the Court for not granting relief to the applicant(s), any prejudice has been caused to them, in view of the judgments relied upon by the learned counsel, ratio decidendi whereof is as under:--
Jagannath Singh v. Dr. Ram Naresh Singh (1970 SCC 573).
The case of appellant contemnor was listed in the cause-list of 1.5.1967 for judgment and orders but the name of the counsel got, by chance, misprinted. the case, however, did not reach that day and when it was listed the next day, the name of the counsel appeared correctly but none appeared and the case was decided ex parte against the appellant. Thereafter, an application was moved for re-hearing of the case. Request so made was not acceded to and ultimately Supreme Court held that there is no doubt that on the 1st of May there was an error in the cause list and it is a maxim that an act of Court should not harm any persons. The omission to mention the case correctly in the cause list was a mistake of the Court itself and some indulgence was, therefore to be shown to the party who had been misled by this erroneous entry. Therefore, ex parte order was set aside and the case was remanded to the High Court for decision.
In this case it was held that "procedural technicalities not be allowed to defeat ends of justice."
In this case the review petition was allowed and the period for depositing of the balance of sale consideration of the pre-empted property was deemed to have been extended, taking into consideration that the learned Single Judge did not advert to this aspect of the matter, and refused the petitioner to deposit the decretal amount although at least two days time was available to petitioner as a matter of right and in this context it was held that it is well settled that no party shall be made to suffer on account of the act of the Court.
This case being distinguishable on the facts narrated therein need not be discussed.
In this case while issuing auction notice, it was not specified that within how much period, balance of the sale price had to be paid in terms of Order XXI Rule 85 CPC, therefore, in this context, it was held that "an act of the Court shall prejudice no man.
In this case, the District Judge did not return the memo of appeal for want of pecuniary jurisdiction of the Court. In this context, it was held that "Court was under obligation to have a glance over the record to see whether appeal has been filed competently or not. Since the same was not returned due to this reason, therefore, it is held that due to act of Court, no prejudice has been caused to petitioner.
In this case, a period of three months was not extended by the High Court for deposit of the sale consideration at the time of dismissal of the appeal filed by the respondent and subsequent thereto High Court allowed the Misc. Application extending the time for deposit the balance amount. This order was challenged before this Court, wherein it was held that it was the duty of the Court to extend the time while disposing of the time, therefore, on account of act of the Court, no prejudice has been caused to the respondent, as a result whereof petition for leave to appeal was dismissed.
In this case the Trial Court had wrongly dismissed the eviction application, therefore, learned High Court held that First Appellate Court had rightly accepted the appeal against the order on the principle that no party should be made to suffer for the act of the Court.
In this case, the Court, while granting permission to withdraw the suit under Order XXIII Rule 1 CPC, had not recorded, its satisfaction as to the existence of the grounds upon which such permission was sought, therefore, it was held that no prejudice was said to have been caused on this ground.
In this case the learned High Court while disposing of RSA did not mention the time for depositing the balance pre-emption amount but subsequently on filing of CMA this omission was corrected, therefore, it was held that as the omission has been committed by the Court for non-fixing the period of the deposit, therefore, pre-emptor must not suffer on account of act of the Court.
In this case it was held that "where a litigant had remained victim of technicalities of procedure or mistakes of the Court, High Court would not refrain from exercising its revisional jurisdiction because it would amount to refusing relief to a litigant at the portal of justice.
In this case Trial Court decreed the suit in favour of the pre-emptor and against defendant but decree was passed against only one defendant. Pre-emptor filed application under Section 152 CPC for correction of the decree as the same had been passed against all defendants. Application was allowed by Trial Court and the decree was amended but Appellate court set aside the order passed by Trial Court -- High Court in exercise of Constitutional jurisdiction restored the order passed by the Trial Court. An appeal was filed before this Court which was dismissed keeping in view the principle that act of the Court should not prejudice any person and technical objections should not come in the way of dispensation of complete and substantial justice.
The brief facts noted in the above judgments show that the principle i.e. "act of the Court shall prejudice no one" was followed, keeping in view the facts of each case but at the same time we have to keep in mind that the Courts are required to do justice between the parties in accordance with the provision of law as the litigant, who approaches the Court for the relief is bound to substantiate that the procedure has been adopted by him in accordance with law because it is elementary principle of law that if a particular thing is required to be done in a manner it must be done as prescribed by the law, otherwise, it should not be done at all, as held in the case of Atta Muhammad Qureshi v. Settlement Commissioner (PLD 1971 SC 61) and Mir Dost Muhammad v. Government of Balochistan (PLD 1980 Quetta 1)].
Thus looking into facts and circumstances of each case, noted in the judgments, relied upon by the learned counsel for appellant(s), as well as the principle discussed in the case of Atta Muhammad Qureshi (ibid), it is held that the case of appellant(s) was not identical to that of FBTL for the reason that relief claimed by the appellant(s) in respect of demurrages against Karachi Port Trust in Writ Petition No. 15788/1997 was altogether distinct and different from the case of FBTL, inasmuch as applicant(s) failed to make the Central Board of Revenue or concerned Collector Karachi as party, therefore, on this score as well, their case was distinguishable from the case of FBTL. Besides, no notices were issued to the respondents, arrayed in CPSLAs Nos. 129 and 130 of 2000, when the same were at leaving granting stage and till the time of disposal of Civil Review Petition No. 80 of 1999, filed by the FBTL, no caveat had been filed by the respondents, therefore, it was not possible to grant relief to the applicant(s) by allowing their CPSLAs Nos. 129 and 130 of 2000, in violation of the principle enshrined in maxim "Audi-alteram-partem". Grant of relief to the applicant(s) in such situation would have militated against the principle of natural justice as held in the case of Government of Pakistan v. Fecto Belarus Tractors Ltd. (2000 SCMR 112). In addition to it, no convincing, material is available on record to hold that Mr. Asghar Hameed Sheikh, ASC who appeared for applicant(s) had argued the case on merits.
There is yet another important aspect of the case namely that applicant(s) were fully aware that leave to appeal had not been granted in their case, therefore, after acceptance of the Review Petition No. 80 of 1999 in FBTL's, they submitted two applications Being Nos. 449 and 450 of 2001, claiming the same relief, but subsequently, they withdrew both the applications and it was pleaded on their behalf that they wanted to approach the CBR for the redressal of their grievance. Dismissal order thus attained finality because no efforts were made by the counsel who appeared on their behalf, for getting such order set aside. Thus the legitimate presumption would be that after withdrawing the petition, learned counsel who did not agitate the matter subsequent thereto, for revival of the petitions, acted in the best interest of the applicant(s), inasmuch as, in Civil Misc. Applications Nos. 762 and 763 of 2002, filed by Mr. S.M. Zafar, learned Sr. ASC, no prayer was made for recall of the order dated 10th January 2002. As indicated in the prayer clause, reproduced herein above, grievance of the applicant(s) seems to be that their representation was not being disposed of Admittedly, now the representation has been disposed of in pursuance of order of this Court dated 10th January 2002, on 29th August 2002, therefore, Civil Misc. Applications Nos. 762 and 763 of 2002 have borne fruit, consequently no lis is pending on the file of this Court, as far as the applicant(s) case is concerned.
In this context vide order dated 20th May 2003, it was also observed that "in the meanwhile if so advised, petitioner may file a fresh petition, assailing the orders passed by the department, after dismissal of the petition as withdrawn while a period of one week". Surprisingly, the applicants(s) did not file any petition against the CBR's order dated 29th August 2002 before the High Court and kept on insisting that same relief be given to them, which has been given in FBTL's case and without following proper procedure, expected from this Court to grant them relief on the applications, filed by them under Article 187 of the Constitution of Islamic Republic of Pakistan read with Order XXXIII Rules 5 and 6 of the Supreme Court Rules, 1980, which have been seriously contested by the other side. In our considered opinion, as no lis is pending before this Court, these applications are not competent in view of the judgment in the case of Zulfiqar Ali Babu (Supra). Relevant para therefrom is reproduced herein below:--
"9. Before touching upon the above contentions on merits, we may deal with the above last submission of Mr. K.M.A. Samdani as to the maintainability of the aforementioned Constitution Petitions. In reply to Mr. Samdani's above submission. Mr. Iftikhar Hussain Gilani has contended that the above Constitution Petitions are maintainable under Article 184(3) read with Article 187 of the Constitution and Order XXXIII, Rule 6 of the Rules. Whereas Mr. Maqbul Elahi Malik has urged that the right to participate in the local councils elections and to be a member thereof is a political right covered by Article 17 of the Constitution and, in any case, the Repeal Act is violative of Article 2A of the Constitution, which inter alia enjoins that the State would be run by the chosen representatives and the local councils, being part of the State, should also be run by the chosen representatives of the people.
(i) Haji Ibrahim v. S. Rehmatullah (represented by Legal heirs) 1985 SCMR 241.
(ii) Ch. Abdul Hamid vs. Deputy Commissioner and others (1985 SCMR 359);
(iii) Muhammad Aslam through his L.Rs. vs. Wazir Muhammad (PLD 1985 SC 46); and
(iv)
(v) Pir Sabir Shah vs. Shad Muhammad Khan, Member, Provincial Assembly, NWFP and another PLD 1995 SC 66.
The above reports do not lay down that an independent proceedings can be initiated under Article 187 of the Constitution but the ratio of the above reports seems to be that once this Court is seized of a lis competently under the relevant law, its power to grant appropriate relief is not controlled by the technicalities of the pleadings or otherwise as Clause (I) of Article 187 lays down that subject to clause (2) of Article 175 of the Constitution, the Supreme Court shall have power to issue such directions, orders, or decrees as may be necessary for doing complete justice in any case or matter pending before it including an order for the purpose of securing the attendance of any person or the discovery of production of any document. We may point out that the key words employed in the above clause are "in any case or matter pending before it". The above words clearly indicate that the relief referred to in the aforesaid clause can be granted in the case or matter pending before the Supreme Court. It may further be observed that the word "pending" means competently brought before this Court. The provision of Rule 6 of Order XXXIII of the Rules is in line with above Clause (I) of Article 187 of the Constitution as it provides that nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The above Rule can be pressed into service only in a matter which is competently filed before this Court but it does not give an independent right to initiate proceedings of the nature in question. "Ch. Abdul Hameed v. Deputy Commissioner and others.
As a result of above discussion, applications Nos. 762-763 of 2002 and 2542-2453 of 2003 have no substance, as such the same are dismissed. No order as to costs.
(A.A.) Order accordingly.
PLJ 2006 SC 127 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Falak Sher, JJ.
JAVAID IQBAL--Appellant
versus
ABDUL AZIZ and another--Respondents
C.As. Nos. 153 & 154 of 2000, decided on 30.9.2005.
(On appeal from judgment of Lahore High Court, Lahore dated 24.11.1997 passed in Civil Revisions Nos. 856 and 857 of 1991)
Administration of Justice--
----All procedural laws were subservient to the cause of justice and therefore they neither limit nor control the power of Court to pass an order or decree which was necessary to do complete justice in the facts and construction of procedural law in a manner which tended to obstruct the course of justice must be avoided as far as possible. [P. 131] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction of High Court--Respondents filed suit for declaration instead of suit for specific performance--Suit & appeal were dismissed on the basis of defective form of the plaint--High Court in its revisional jurisdiction remanded the case for decision afresh on merits after amending & correcting the form of suit--Validity--Held: According to plaint respondents had purchased the suit land for a definite consideration, duly paid through 2 receipts, coupled with delivery of possession--Thereafter, residential houses were also constructed upon it--After more than 3 years appellant, by filing suit for possession, claimed their dispossession and demolition of said superstructure with the allegation that they had encroached upon the suit land, owned by him--Obviously defective form of suit was due to ill advice by some petitions--Writer or a mofussil lawyer who drafted the plaint--However appellant had not specifically denied the facts in his written statement--Both lower Courts miserably failed to realise that the relief asked for by the plaintiff could justifiably be moulded by converting the suit for declaration into a suit for specific performance--It was incumbent upon the Courts to apply their judicial mind to ensure substantial justice--High Court rightly observed that suit could not have been dismsised on account of any defect in form--Remand order was upheld--Appeal dismissed.
[Pp. 132, 133 & 134] B, C, D, E, F & G
Malik Muhammad Qayyum, ASC and Chaudhry Akhtar Ali, AOR for Appellant.
Mr. Muhammad Munir Peracha, ASC for Respondents.
Date of hearing: 3.5.2005.
Judgment
Rana Bhagwandas, J.--These appeals with the leave of this Court are directed against consolidated judgment of the Lahore High Court dated 24.11.1997 passed in Civil Revisions Nos. 856 & 857 of 1991 arising out of two suits filed by the parties in relation to a piece of land measuring 17 marlas one for relief of possession by dismantling the construction raised thereon and another for declaration of title and permanent injunction respectively.
Appellant-Javaid Iqbal filed a suit for possession against respondent-Abdul Aziz and his brother Liaqat Ali on the averments that they had illegally encroached upon the suit land and constructed houses thereon. It was averred that Respondent No. 1 had encroached upon 11 marlas of land whereas Respondent No. 2 i.e. Liaqat Ali had unlawfully occupied a piece of land measuring 3 Kanals and raised construction thereon about one year before the institution of the suit. As per the copy of the plaint the suit appears to have been filed before the Court of Senior Civil Judge, Gujranwala on 19.5.1980.
Suit was resisted by both the respondents through a joint written statement. Stance of the respondents before the trial Court was that the appellant being owner of Khasra No. 9307/5761/2397 started selling separate plots of land through his authorized agent Muhammad Siddique, who used to transact the sale of plots while the appellant, after recovery of consideration, would hand over possession of the respective plots. In the same manner, respondents purchased a piece of land measuring 17 Marlas at the rate of Rs. 1000/- per marla from the appellant, who, upon receipt of part consideration of Rs. 11,700/- from them handed over vacant possession of the land to them with the understanding that balance amount would be payable at the time of execution of conveyance deed. Accordingly respondents started construction on the site. Meanwhile on 7.12.1977, appellant received balance consideration and executed separate acknowledgement receipts therefor with the understanding that, on completion of sale of entire land in the shape of small plots, he would inform the respondents and execute a registered deed of transfer. Since by passage of time, price of land inflated, the appellant, with ulterior motive, kept on postponing the act of execution of registered sale-deed. When the respondents appraoched the appelalnt through notables of the locality, he dishonestly demanded consideration at the rate of Rs. 5,000/- per marla. As the respondents declined to pay additional consideration at the aforesaid rate, appellant got provoked and filed a false and frivolous suit. Respondents appended photocopies of the acknowledgement receipts dated 25.3.1977 and 7.12.1977, in support of their claim regarding payment of consideration, to the written statement.
Since respondents' right, interest and title in the suit land was invaded and threatened by the appellant, both the respondents filed an independent suit for declaration and permanent injunction with regard to the suit land. Respondents averred that, though they were residing in the houses constructed by them on the land purchased from the appellant, entries in the record of right remained in the latter's name, who intended to sell the said land to someone else without any lawful authority. They approached the appelalnt to accpet their title and ownership with possession of the houses constructed thereon but the latter refused to accede to their request and backed out from his solemn commitment, hence the suit. Appellant contested the suit on the premise that the repsondents were illegal encroachers on the land, without expressly denying the factum of sale of land in their favour, receipt of consideration and passing of physical and vacant possession in their favour.
Both the suits were consolidated by the trial Court, in which, inter alia, issues were settled: firstly, whether the plaintiffs have no locus standi to file the suit; whether the plaintiffs are owners in possession of the suit property and whether the entries in revenue record in favour of defendant are illegal and inoperative on the right of plaintiffs. Both the parties adduced evidence. Receipts Ex.P.1 and P.2 were also tendered in evidence by the respondents. Learned Civil Judge, Gujranwala, however, on misconsturction of the evidence on record dismissed the suit filed by the respondents on the premise that the tranaction of sale being compuslorily registerable under Section 17 of the Registration Act in the absence of any registered deed in favour of the respodnents, right of ownership did not devolve upon them. Consequently he held that the respodnents had no locus standi to file the suit and they were in illegal possession of the suit land. In the connected suit filed by appellant-Javaid Iqbal, basing his conclusion on the entries in the jamabandi in favour of the appellant and in view of dismissal of cross suit of the respondents, he decreed the suit for possession against them.
Two separate appeals against the judgments and decrees of the trial Court, preferred by the respondents, were heard by an Additional District Judge, Gujranwala, who dismissed the same by identical jdugment on the premise that an agreement to sell does not create any right, title or interest in immovable property. Appellate Court held that there could not be any doubt that without a right, title or interest created in immovable property a suit for declaration could not be maintained on the basis of the averments in the plaint. Referring to the provisions of Section 42 of the Specific Relief Act, 1877, appellate forum observed that only proper mode of redress for the respodnents, in the circumstances, would be a suit for specific performance of the agreement. Consequently, both the appeals were dismissed on untenable and extraneous consideration.
Confronted with the above situation, respodnents were obliged to invoke the revisional jurisdiction of the Lahore High Court through two separate revision applications, which were allowed by a learned Judge, who, upon deeper examination of the record and taking into consideration the principles for administration of justice and the law on the subject, set aside the judgments of the two Courts below and remanded the suits to the trial Court with the direction that trial Court shall treat the suit of the repsondents for specific perfomrance and allow necessary amendments as well as time for making up of deficiency of Court fee. After amendment of pleadings, both the suits were ordered to be decided afresh on their own merits in accordance with law, after allowing the parties an opportunity to produce further evidence. Directions for final decision of the suits within two months and consequent appeals, if any, within a further period of two months were also issued vide judgment dated 24.11.1997 impugned in the aforesaid appeals. Accordingly, leave to appeal was granted by this Court to consider the quetions, inter alia, as to whether a suit for declaration seeking ownership was competent on the basis of an agreement to sell, whether form of a suit was a technical and could the same be converted into a suit for specific performance of the contract? Leave to appeal was also granted to consider whehter in the absence of any prayer respondents to convert the suit for declration into one for specific performance without seeking any amendment for 12 years, could the High Court order such conversion.
At the hearing of the appeals, Malik Muhammad Qayyum, learned ASC for the appellant vehemently contended that a contract for sale of immovable property did not confer any right, title or interest in favour of the respondents and as such the suit for declaration and permanent injunction was inherently not maintainable and misconceived. He seriously assailed the view taken by the High Court and submitted that in the absence of a written prayer for conversion of the relief in the suit on the part of the respondents, relief granted by the High Court could not have been legally granted. He relied upon judgments reported in Karimdad v. Arif Ali (PLD 1978 Lahore 679), L.T. Muddu Krishana v. Lalitha Ramchandra Rao (AIR 1997 S.C. 772) Ahan Saz Contractors v. Pak. Chromical Limited (1999 MLD 1781) and Keramat Ali v. Muhammad Yunus (PLD 1963 S.C. 191).
Conversely, Mr. Muhammad Munir Peracha, learned ASC for the repsondents with all emphasis at his command, defended the High Court judgment and contended that in the exercise of its jurisdiction, High Court was entitled to mould the relief in view of the averments made in the plaint, evidence adduced by the parties and sufficient proof of the transaction of the sale followed by payment of total consideration and delivery of vacant possession of the suit land in favour of the repsondents coupled with raising of permanent construction i.e. residential houses in which the respondents have been residing as full-fledged owners for the last more than two decades. Learned counsel urged that the view taken by the trial Court and the appellate Court was too narrow and hyper-technical in nature causing gross injustice to the respondents, who were non-suited for extremely procedural and technical reasons, which should always be avoided and a mechanism evovled to do complete justice to the parties in the facts of the case. Learned counsel referred to Ahmed Din v. Muhammad Shafi (PLD 1971 S.C. 762) and Shabir Ahmed v. Khushi Muhammad (1993 CLC 2316) in order to demonstrate that the amendment of pleadings can be allowed at any stage, if deemed essential in the interest of justice and for effective and proper adjudication of the controversy between the parties.
The Code of Civil Procedure, 1908 (hereinafter referred as the Code) was enacted to regualte the rpoceedings before the Civil Courts. Provisions contained in the Code are mainly rules of procedure. It is well settled that all procedural laws are subservient to the cause of justice and, therefore, such laws neither limit nor control the power of the Court ot pass an order or decree, which is necessary to do complete justice in the facts and circumstances of the case. Construction of procedural law in a manner, which tends to obstruct the Course of justice, must be avoided as far as possible. The authors of the Code were fully conscious of the underlying object of procedural law and, in all probability in order to remove and dispell all doubts in this regard, categorically provided in Section 151 of the Code that "nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of process of the Court".
Section 107 of the Code enumerates the powers of appellate Court as under:
"107. Powers of Appellate Court.--(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power,--
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred an imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
It may be pertinent to observe that aforesaid provision of law is not to be read in isolation from other provisions of the Code. The provisions contained in Order XLI, Rule 33 of the Code reaffirm that the appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such furhter or other decree or order, as the case may require, and this power may be exericsed by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respodnents or parties although such respondents or parties may not have filed any appeal or objection. The provisions contained in Order VI Rule 17 of the Code are of widest amplitude stipulating that the "Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such temrs as may be just and all such amendments shall be made as may be necessary for the purpsoe of determining the real questions in controversy between the parties. Again provisions of Order VII of the Code dealing with the institution of a plaint and the manner and mechanism of institution of a suit through a plaint contain elaborate and exhaustive enabling rpovisions. Order VII, Rule 7 of the Code reads as under:--
"Order VII--Plaint
Relief to be specifically stated. Every plaint shall state specifically the relief which the palintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."
In the facts of the case in hand it would appear that the respondents had all along pleaded that they had purchased the suit land from the appellant for a definite consideration, which was duly paid and acknowledged through receipts Ex.P.1 and P. 2 coupled with delivery of vacant possession entitling them to utilize the property in the manner best suited to them. It was on this account that the respondents raised structure of permanent nature and started residing with their kith and kin when after the passage of more than three years appellant brought a suit for their dispossession and demolition of the structure on the premise that they had unlawfully encroached upon his land. It may not be out of context to observe that in the written statement filed by the appellant in the suit filed by respondents he simply denied the contents and averments made in various paragraphs of the plaint without expressly and specifically denying the factum of sale of property in their favour. The appellant did not plead that he had not entered into any agreement of sale; that he did not receive consideration of Rs. 17,000/-; that he did not execute the acknowledgment receipts in token of the receipt of consideration for the sale and that he did not voluntarily part with the possession of the suit land in favour of the respondents. Obviously respondents being illiterate and rustic villagers were ill-advised to pray for the relief of declaration and consequential relief of permanent injunction by some petition writer or a mofassil lawyer who drafted the plaint in the suit with defective form. There can be no cavil with this proposition that mere agreement of sale would not confer any right, title or interest to immovable property on the respondents. Both the Courts, however, miserably failed to realise that the relief asked for by the plaintiffs could justifiably be moulded by converting the suit for declaration into a suit for specific performance. Both the Courts, instead proceeded to knock down the respondents on hyper-technical ground that they had not prayed for specific performance of the contract and that simply because the record of rights was entered in the name of appellant, respondents having failed to prove their ownership were in illegal occupation of the land. In the face of averments in the plaint to the effect that the appellant, having turned out to be dishonest in his intention and with an ulterior motive was intending to transfer the land to a third party and that he was approached to accept the ownership rights of the respondents, they were obliged to knock the door of the Court, it was incumbent upon the Courts to apply their judicial mind to ensure substantial justice. In law, it was imperative and just to do complete justice to record definite findings of fact whether there was a contract of sale between the parties; whether the contents of Ex.P.1 & P.2 were substantiated through adequate evidence; whether possession of the suit land was handed over to the respondents in part performance of the contract and whether they were lawfully residing in the houses on the suit land or they had wrongfully trespassed over the land as claimed by the appellant.
On its part, in the exercise of its revisional jurisdiction, Lahore High Court was perfectly justified in observing that the suit could not fail merely for the reason that some relief which was available had not been claimed. Honourable Judge of the High Court is perfectly justified in observing that the suit could not have been dismissed on account of any defect in form. In view of the assertion of the respondents that they had passed on total sale consideration and obtained possession in part performance of sale, they would be entitled to full protection of their possession within the contemplation of Section 53-A of the Transfer of Property Act, 1882. In our considered opinion, both the Courts below failed to take into account the legal impact and effect of the provisions contained in Section 53-A of the Transfer of Property Act and the provisions of Code of Civil Procedure, 1908 providing sufficient mechanism for doing complete justice to the parties. Evidently and essentially, this was a fit case for exercise of jurisdiction under Order VI, Rule 17, Order VII, Rule 7 and Section 151 C.P.C. rather than attaching much importance to the defective drafting of the plaint and the prayer clause. The view taken by the High Court in exercise of its revisional jurisdiction, in our considered opinion, does not suffer from any inherent legal infirmity misreading of record, misconception of law or error of jurisdiction. To the contrary, the judgment of the High Court in the peculiar facts and circumstances of the case, on the face of the record, appears to be just, fair, equitable and expedient to achieve the ends of justice and to defeat the mischief. The order of remand is, therefore, fully justified and not open to any exception.
In Karimdad v. Arif Ali (supra), it was held that the trial Court suo moto order, directing amendment of plaint without there being any application, written or oral, and without hearing other side on the issue, was without jurisdiction. There can be no cavil with this proposition but the principle cannot be stretched to operate as bar on the exercise of power by the High Court in appeal or revision when otherwise the High Court finds it essential for determination of the real question in controversy. High Court being a Court of record with powers of supervision and correction of the orders passed by the inferior Courts cannot be said to be helpless in appropriate cases to pass such order in order to do substantial justice and to advance the cause of justice. Ahan Saz Contractors (supra) is not decided in accord with the law laid down by this Court. In Keramat Ali v. Muhammad Yunus (supra), this Court observed that the Judicial Committee of the Privy Council consistently maintained that it had undoubtedly full powers to allow such amendments even where a legal right had accrued by lapse of time if the special circumstances of the case out weighed such consideration. That this Court possess similar powers to do complete justice cannot be disputed. Nevertheless Hamoodur Rehman, J. (as his Lordship then was) recorded a rule of caution by observing that in exercising this power no doubt this Court would be reluctant to allow an amendment, which would have the effect of totally altering the nature of the suit or by taking away a valuable right accrued by lapse of time, but where in the circumstances of a particular case it would be plainly inequitable to refuse such a relief, this Court will not hesitate to do what the Judicial Committee did in the case of Muhammad Zahoor Ali Khan v. Mst. Thakooranee Rutta Koer (11 MIA 468). In the Indian Supreme Court case, amendment in a suit for mandatory injunction into a suit for specific performance of a contract after expiry of three years from the date fixed by the parties was disallowed for the reasons that the relief would be barred by limitation; that the cause of action, which was required to be stated initially in the plaint was not pleaded. There would be a world of difference between a suit for mandatory injunction and a suit for the relief of specific performance of contract. Evidently, circumstances and ingredients of the plaint would be all together distinguishable, thus, the rule cannot possibly be extended to the case in hand.
Adverting to the case law on the subject, we may refer to Jankirama Iyer v. Nilakanta Iyer (AIR 1962 S.C. 633), lying laid down that construing the plaint, the Court must have regard to all the relevant allegations made in the plaint and must look at the substance of the matter and not its form. Interpreting the provisions of Order VI, Rule 2 C.P.C. and Order XLI Rule 33 C.P.C., Supreme Court of India in Bhagwati v. Chandramaul (AIR 1966 S.C. 735) held that if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it. It was emphasised that in considering the application of this doctrine to the facts of a particular case, Court must bear in mind the other principle that consideration of form cannot override the legitimate considerations of substance. In Ahmad Din v. Muhammad Shafi (PLD 1971 S.C. 762) it was held that in a suit for declaration where plaintiff was able to seek consequential relief by way of possession, which had not been claimed, Court in such case should allow amendment of plaint by adding prayer for possession and paying appropriate Court fee and granting him relief even though he had not specifically asked for it. In Manager, Jammu Kashmir, State Property v. Khuda Yar (PLD 1975 S.C. 678), rule of law laid down is to the effect that the scope of the revisional powers of the High Court, though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects in as much as: firstly, its discretionary jurisdiction may be invoked by the Court suo moto, and secondly, the Court "may make such order in the case as it thinks fit". In Amina Begum v. Ghulam Dastgir (PLD 1978 S.C. 220), this Court laid down the principle of law that a discretion is vested in the Courts to be judicially exercised in proper cases to avoid multiplicity of proceedings, to shorten litigation and to do complete justice between the parties and mould the relief according to the altered circumstances in the larger interest of justice. In Samar Gul v. Central Government (PLD 1986 S.C. 35), interpreting the provisions of Order VII, Rule 7 C.P.C. Zafar Hussain Mirza, J. (as his Lordship then was), peaking for the Full Bench authoritatively held that it is well settled that a Court is empowered to grant such relief as the justice of the case may demand. For purposes of determining the relief asked for, the whole of the plaint must be looked into so that the substance rather than the form should be examined. In Mir Mazar v. Azim (PLD 1992 S.C. 332) it was laid down that amendment of pleadings has to be allowed keeping in view the circumstances of the case and the stage of litigation and on such terms as may be just. In this case, in second appeal before the High Court, application was filed seeking amendment of plaint, notice whereof was served on the other party but no reply was filed thereto. High Court did not pass any order on the said application but dismissed the second appeal. It was ruled that ends of justice demanded that amendment should have been allowed, as such request could be treated at par with the case of declaration under Section 42 of Specific Relief Act when consequential relief had not been sought. It was reaffirmed that rules of procedure are meant to advance justice and to preserve rights of litigants and they are not meant to entrap them into blind corner so as to frustrate the purpose of law and justice. A case in point almost on all fours from Lahore jurisdiction is reported as Shabbir Ahmad v. Khushi Muhammad (1993 CLC 2316) authored by an illustrious Judge of this Court Munir A. Sheikh, J. (as his Lordship then was in the Lahore High Court). In this case appellate Court had dismissed the suit on the ground that the same was not in proper form as the remedy of the plaintiff was to seek decree for specific performance, his Lordship authoritatively held that the suit could not have been dismissed on this technical ground and ruled that the relief of specific performance could be granted to the plaintiff if the evidence on record had established agreement of sale and performance of his part of agreement and the question of limitation as not involved. In Lachman Das v. Servanand (1995 SCMR 435) dealing with the powers of this Court, it was observed that Rule 6 of Order XXXIII of the Supreme Court Rules, 1980 provides that "nothing in the rules would be deemed to limit or otherwise affect the inherent powers of the Court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court.". To the same effect are the powers vested in an appellate Court under Order XLI, Rule 33 C.P.C. as well as under Section 151 C.P.C. In Province of Punjab v. Abdul Majeed (1997 SCMR 1692), principle of law was expounded as under:
"The power conferred on the Appellate Court under Order XLI, Rule 33 C.P.C. is of the wides amplitude and in exercise of this power the Appellate Court is competent to grant relief to a party, notwithstanding the fact that such party failed to prefer an appeal or submit any cross-objection. However, in equity, justice and good conscience and the fact that withholding of relief would result in a contradictory, unworkable or impossible order/decree. Therefore, when the Appellate Court reaches a conclusion in a case that by withholding the relief to a non-appealing respondent or to a respondent who omitted to file cross-objection grave hardship or injustice is likely to result to it or that the judgment or orders will be rendered contradictory, it will be a good ground for exercise of powers under Order XLI, Rule 33 C.P.C. to grant appropriate relief to a non-appealing respondent or to a respondent who omitted to file cross-objection in the appeal."
Again in Barkat Ali v. Muhammad Ehsan (2000 SCMR 556), this Court reiterated that principle object behind all legal formalities is to safeguard the paramount interest of justice. legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fides. In Kashi Parsad v. Banshidhar (AIR 2001 Maddhya Pradesh) 185(), in a suit for declaration and possession by virtue of temporary partition, concurrent findings were recorded by Courts on basis of evidence that plaintiff has 1/7th joint share in the disputed property. This fact, however, was not specifically pleaded in relief clause of plaint. It was held that appellate Court should not have refused the same on technical ground that it was not specifically sought for in the relief clause of plaint, particularly, in order to avoid further vexatious litigation between the parties. Division Bench of the High Court ruled that First Appellate Court should have exercised discretion in the interest of justice.
(J.R.) Appeals dismissed.
PLJ 2006 SC 137 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Hamid Ali Mirza, JJ.
HAROON RASHEED and 6 others--Appellants
versus
STATE and another--Respondents
Crl. A. No. 78 of 2004, decided on 30.5.2005.
(On appeal from the judgment dated 29.4.2002 in Crl. A. No. 3081-T of 1999, Crl. A. 33/2000 & Crl. R. No. 14/2000, passed by the Lahore High Court)
(i) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan (1973), Art. 185--Offence of murder--Conviction and sentence of death awarded to appellants assailed--Appreciation of evidence--Ocular testimony of witnesses was confidence inspiring and un-impeachable--Site plan which is not substantial piece of evidence in presence of reliable ocular version would be confirmatory evidence--Ocular version coupled with medical evidence proved beyond shadow of doubt guilt of appellants--Mere inaccuracy in site plan would not take away probative force of testimony in case considering also the fact that F.I.R. was properly lodged and there was no strong reason to falsely implicate appellants in present case, instead of real assailants of deceased. [P. 146] A
(ii) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Offence of murder--Conviction and sentence of death assailed--No inmate of house wherein offence of murder took place was examined by prosecution as alleged by defence--Head of the family was not present in that house while women according to custom do not sit in the room where men were sitting waiting for return of head of family when occurrence took place--As per tradition of rural area women do not appear as witnesses--Besides, prosecution has not claimed that women folk of house were present in the room where offence took place. [P. 146] B
(iii) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan (1973), Art. 185--Non-examination of investigating officer--Investigating officer was not present in the country and in his place, his colleague who had worked with him in present case was examined who had attested and certified investigation of case--Non-examination of investigating would not adversely affect prosecution case. [P. 146] C
(iv) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Motive alleged to be too remote and weak--Absence of motive would not be helpful to accused so also weakness of motive would not come in the way of prosecution if there were otherwise strong, confidence inspiring, un-impeachable and reliable evidence in support of prosecution case considering that motive is always state of mind of accused which cannot be proved by ocular testimony because number of such incidents appear to occur without any motive to the knowledge of victim. [Pp. 146 & 147] D
(v) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Offence of murder--Plea of defence that ocular testimony was not consistent with medical evidence had no merit and substance as much as, ocular testimony was consistent with medical evidence. [Pp. 147 & 148] E
(vi) Pakistan Penal Code, 1860 (V of 1860)--
----S. 302--Prosecution witnesses not suffering any injury at place of occurrence--Plea of--Prosecution witnesses have not need sustained injuries on their person to prove their presence at relevant time at place of occurrence--Cogent evidence was available to prove offence committed by appellants. [P. 149] F
(vii) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan (1973), Art. 185--Offence of murder--Recovery of crime weapons and empties--High Court has rightly observed that the same were pieces of evidence of corroboration--Even if recovery was not proved, in presence of reliable, confidence inspiring and un-impeachable ocular testimony and other circumstantial evidence, factum of non-recovery would not adversely affect prosecution case--As for lesser penalty, three young persons were done to death by indiscriminate firing by appellants, therefore, normal penalty of death has been rightly imposed by Courts below. [P. 149] G
(viii) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan (1973), Art. 185--Offence of murder--Proof of--Prosecution has proved its case beyond reasonable doubt on basis of un-impeachable and confidence inspiring testimony corroborated by medical evidence conviction and sentence of death passed by High Court was maintained. [P. 151] H
1992 SCMR 273; 1992 SCMR 370; PLD 1975 SC 227; 1993 SCMR 585; 2005 SCMR 427; 1996 SCMR 773; PLD 1971 Lahore 781; PLD 1958 (W.P.) Lahore 395; PLJ 1984 Cr.C. Lahore 521; 2005 SCMR 427, ref.
Kh. Sultan Ahmad, Sr. ASC with Raja Abdul Ghafoor, AOR for Appellants.
Sardar Muhammad Ishaque, Sr. ASC for Complainant.
Raja Saeed Akram, A.A.G. Punjab for State.
Date of hearing : 28 to 30.3.2005.
Judgment
Hamid Ali Mirza, J.--This criminal appeal with leave granting order dated 24.2.2004 of this Court is directed against the judgment dated 29.4.2002 in Criminal Appeal No. 308-T of 1999 passed by learned Division Bench of the Lahore High Court, Lahore filed against judgment of conviction dated 20.12.1999 of the learned Special Judge, Suppression of Terrorist Activities, Islamabad, whereby the said appeal was dismissed so also revision Petition No. 14 of 2002, maintaining the judgment of conviction of the trial Court, whereby the appellants were convicted and sentenced for triple murder in the following terms:--
"All the seven accused convicted under Section 148 PPC and sentenced to two years R.I. each.
Convicted under Section 460/149 PPC and sentenced to imprisonment for life.
Conviction under Section 302(b)/149 PPC, Haroon Rasheed, Muhammad Raees and Muhammad Hanif sentenced to death on three counts. Muhammad Nawees, Muhammad Waqar, Muhammad Wariyam and Muhammad Sarwar, however, sentenced to imprisonment for life on three counts.
All the seven accused further directed to pay Rs. Seven lac in aggregate to the legal heirs of three deceased as compensation under Section 544-A Cr.P.C. or in default of payment, to suffer six months S.I. on three counts.
Sentences were directed to run concurrently and they were given benefit of Section 382-B Cr.P.C. as well.
Leave was granted for reappraisal of the evidence whether the learned High Court has failed to appraise the evidence according to principles laid down by this Court for safe administration of justice in criminal cases to consider the plea raised that testimony of PW-11 Niaz Akhtar and PW-12 Tahir Hussain being not confidence inspiring and unimpeachable in nature cannot be basis for conviction and that points raised before the learned Division Bench of the High Court were not attended to in the judgment when the above said PWs were not present at the place of occurrence at the relevant time and the motive being remote seventeen years prior to the incident and further that none from the inmate of the house was produced as witness in the case.
Brief facts of the case are that on 9.12.1997 at 2305 hours Complainant Niaz Akhtar, PW-11, lodged report FIR No. 175 at P.S. Bhara Kahu, Islamabad stating therein that he was a student of 9th class and residing in Dhok Chappar Dakhali Chrah. On the said date after taking evening meal he, his maternal grandfather Muhammad Sharif, his father Hassan Akhtar, his mother Mazloom Bibi, paternal uncle Muhammad Saeed, maternal uncle Muhammad Faris and maternal cousin Tahir Hussain went to the house of Aurangzeb, their co-villager, to condole the death of his father-in-law for offering `Faateha', Aurangzeb was not present in his house, and had gone to offer Isha prayer in the mosque. All the aforesaid visitors went inside his house and sat on cots in a room and were waiting for Aurangzeb's return. There was sufficient tube and bulb light in the house and outside in the courtyard. In the meantime at about 2000 hours suddenly Waqar accused alongwith Muhammad Sarwar, both armed with .30 bore pistols, Muhammad Hanif and Muhammad Wariyam both armed with .7mm rifles, entered through he eastern door of the room while Haroon Rasheed and Raees accused, both armed with Kalashinkov rifles and Muhammad Yunus armed with .44 bore rifle, entered the same room from its western door. At the exhortation of Haroom Rashid to kill Hassan Akhtar and Muhammad Saeed to teach them a lesson for the murder of Azmat Bibi, wife of Muhammad Sarwar accused, the other accused separated Muhammad Sharif, Mst. Mazloom Bibi, Tahir Hussain and Muhammad Faris and made them (the said victims) to stand in the Southern corner of the room. In the presence of witnesses, appellant/accused Haroon Rasheed fired a burst with Kalashnikov at Hassan Akhtar who was hit on the right side of his neck and right hand. Muhammad Raees, accused, fired a burst at Muhammad Saeed, hitting him on the back of his shoulder. Muhammad Faris stepped forward to rescue the two injured persons, on which Muhammad Hanif aimed his .7mm rifle straight at Muhammad Faris and fired at him hitting him on the right cheek. The remaining accused also started firing and when all the accused were satisfied that the father, paternal uncle and maternal uncle of the first informant had expired, they ran away to their houses while firing. The incident was allegedly committed at the instance of Raja Jamroze Khan, who had earlier not allowed the complainant party to resolve their dispute regarding some land. After usual investigation of the case the above said accused were challaned before the competent Court wherein they were read over charge who pleaded not guilty to the charged offences and prayed to be tried. The prosecution examined as many as 19 PWs and one CW. After closing of prosecution evidence, the appellants/accused were examined under Section 342 Cr.P.C. who denied the commission of alleged offence and further stated that the case has been concocted and they have been falsely implicated due to local election rivalry with Hassan Akhtar deceased, and the ocular evidence has been procured by the prosecution after persuading the witnesses for long. They denied the recovery of the empties and other firearms from them and also denied that they had gone with Jamroze Khan in his Pajero Jeep and they also denied to have committed the alleged offence on account of murder of Mst. Azmat Bibi wife of Muhammad Sarwar which took place 16/17 years prior to the instant incident. The appellants/accused did not examine any witnesses in defence. The trial Court Judge after recording the evidence and hearing the learned counsel for the parties convicted and sentenced the appellants as said above, while acquitted Jamroze Khan who was charged with abatement of the said offences. The appellants/accused preferred Appeal No. 308-T/99 before the Lahore High Court, Lahore, which was heard by learned Division Bench of the High Court when the said Division Bench dismissed the said criminal appeal and criminal revision maintaining the conviction and sentence.
We have heard learned counsel for the parties and perused the record.
Contentions of the learned counsel for the appellants are that the motive with regard to murder of Azmat Bibi which had taken place about sixteen years prior to the incident was too remote to be believed for the commission of instant offence as same being farfetched with also could not be proved on record. He further submitted that testimony of alleged two eye-witnesses, namely, Niaz Akhtar, PW-11 and Tahir Hussain, PW-12, is not confidence inspiring as it would appear that they did not suffer any injury in spite of alleged indiscriminate firing of such deadly weapons as allegedly used by the appellants/accused. It was further urged that prosecution has not examined Investigating Officer who conducted the investigation of the case, therefore it was serious blow to the case of the prosecution which also caused prejudice to the appellants/accused. He further submitted that no inmate of the house of Aurangzeb was examined to support the prosecution case, consequently the best evidence was withheld and the ocular version was of interested and hostile witnesses which could not be relied upon. He also submitted that crime empties were not wedded with the firearms and fake recovery has been planted upon the appellants/accused as no independent witness of recovery came forward to depose against the appellants/accused and further that the ocular testimony was in conflict with the medical evidence considering that stomach of Muhammad Saeed, deceased, was found empty and further considering the site-plan and the size of the room, the presence of the two ocular witnesses who escaped unhurt was not possible in view of the indiscriminate firing allegedly on the part of the appellants/accused. Learned counsel further submitted that in view of the weak motive and ocular testimony of interested and hostile witnesses in absence of independent corroboration capital sentence cannot be sustained.
Learned counsel for the respondent/complainant submitted that learned Division Bench and the trial Court have rightly appraised the evidence on record and arrived at right conclusion in the appreciation of evidence in accordance with law which required no interference considering that ocular version of PWs Niaz Akhtar and Tahir Hussain was confidence inspiring and unimpeachable and fully corroborated by independent, circumstantial, confirming medical evidence and recovery of the firearms and empties which were found at the pointation of the accused, so also the said weapons of crime and also the motive which had taken place 3/4 months prior to the instant occurrence as per record and father that even if it is assumed that motive was not proved or was weak it cannot be said that the case of prosecution was not proved keeping in view the confidence inspiring ocular testimony and unimpeachable evidence corroborated by other circumstantial and confirmatory evidence.
The prosecution case is based on the following pieces of evidence:--
(I) Ocular testimony of PW-11 Niaz Akhtar and PW-12 Tahir Hussain;
(II) Medical evidence of PW-5 Dr. Muhammad Arshad and post-mortem report;
(III) Recovery evidence of empties and recovery of firearms; and
(IV) Motive.
(V) Absconsion of appellant/accused Muhammad Raees.
We all sat on cots in the house of Aurangzeb and waited for return of Aurangzeb. The tube light and the electric bulbs were lit. When we were waiting for the arrival of Aurangzeb it was about 7.45 p.m. and in the meanwhile Muhammad Hanif, Muhammad Waqar, Wariyam and Muhammad Sarwar accused present in Court came there from the eastern side. Muhammad Waqar accused was armed with .30 bore pistol, Muhammad Hanif was armed with .7mm rifle, Muhammad Wariyam was armed with .7 mm rifle, Muhammad Sarwar accused was armed with .30 bore pistol. Haroon Rasheed accused armed with kalashinkov, Raees accused armed with Kalashinkov, Muhammad Nawees accused armed with .44 bore came from the western side and trespassed into the room where we were sitting in the house of Aurangzeb. Haroon Rasheed accused raised the lalkara that they had come to teach lesson to Hassan Akhtar and Muhammad Saeed for committing the murder of Azmat Bibi wife of Muhammad Sarwar accused. The accused made me, my maternal grandfather Muhammad Sharif, my mother Mst. Mazloom Bibi and my cousin Tahir on one side in the room. Haroon Rasheed accused fired a burst of Kalashnikov which hit my father Hassan Akhtar on the right hand and on the neck, then Muhammad Raees accused fired the burst of Kalashnikov which hit my uncle Muhammad Saeed on the left shoulder, my maternal uncle Muhammad Faris tired to rescue my father and my uncle and Muhammad Hanif fired with .7mm rifle which hit Muhammad Faris on his right cheek. Muhammad Nawees, Waqar, Wariyam and Muhammad Sarwar indulged in indiscriminate firing which hit my father, my uncle Saeed and my maternal uncle Faris. When the accused were satisfied that all the three had died then all the accused fled away from the spot by firing. Besides me, my maternal grandfather Muhammad Sharif, my mother Mst. Mazloom Bibi and my cousin Tahir saw the occurrence."
The said witness was cross-examined at length by the defence which consists of fifteen full pages but on perusal of the said cross-examination it appeared that the defence has failed to shake the credibility and veracity of said witness. The testimony of PW-11 Niaz Akhtar is consistent with the contents of the FIR lodged promptly.
"We all sat on cots and chairs in a room of the house of Aurangzeb and waited for his return. Inside the room and outside the room the tube lights and the electric bulbs were lit. It was 8 p.m. and from the eastern door of the room Waqar armed with .30 bore, Hanif accused armed with .7mm rifle and Muhammad Sarwar accused armed with .30 bore and Wariyam accused armed with .7mm rifle entered the room. From the western door of the room of occurrence Haroon Rasheed armed with Kalashnikov, Raees accused armed with Kalashnikov and Muhammad Nawees armed with .44 bore entered the room. Haroon Rasheed accused after entering the room raised the lalkara that they had come to teach lesson to Hassan Akhtar and Saeed for committing the murder of Mst. Azmat wife of Muhammad Sarwar accused. On the pointation of the weapons the accused persons made me, my aunt Mst. Mazloom and my cousin Niaz Akhtar, Muhammad Faris and Muhammad Sharif, in one corner of the room. Haroon Rasheed accused gave the first burst of kalashnikov which hit Hassan Akhtar on his right hand and his neck. Then Raees accused fired with kalashnikov which hit Muhammad Saeed on the left shoulder on its black. Muhammad Faris came forward to save Saeed and Hassan Akhtar and Hanif accused fired with .7mm rifle which hit Faris on his left cheek. When the three injured persons were in the process of full then the accused, namely, Waqar, Sarwar, Wariyam and Nawees indulged in indiscriminate firing upon the three injured persons. When three injured persons fell down on the floor then all the seven accused named above ran towards their house by firing. I, Niaz Akhtar, Mst. Mazloom Bibi and Muhammad Sharif PWs saw the occurrence. All the three injured namely Hassan Akthar, Muhammad Saeed and Faris succumbed to the injuries at the spot."
PW-12 was cross-examined by the defence counsel at length which cross-examination consists of eleven full pages. We have not been able to find that the defence has shaken the credibility or veracity of the said witness on the material points. It may also be brone in mind that incident had taken place on 9.12.1997 while the evidence of PWs 11 & 12 was recorded on 19.10.1999 and 25.3.1999 respectively, almost after two years of the incident, therefore somewhat little omissions and inconsistencies are bound to occur but so far the material part of implication of the appellants/accused is concerned the same has been affirmed by both the PWs in their testimony even after two years. We have not been able to find any plausible reason on record or from the arguments advanced from the learned counsel for the appellant that as to why the said PWs would falsely implicate the present appellants in the commission of crime if real culprits were other than the appellants.
"These observations to show that the charring effect depends not only on the distance from which the shot is fired but also on the kind of powder used in the missle. We have no information in the present case on this point. In these circumstances, the positive testimony of the eye-witnesses, who are otherwise dependable and natural witnesses, cannot be cast aside merely on the basis of the theoretical opinions relied upon by the defence."
Besides, it may be observed that in the instant case ocular testimony of both PWs is confidence inspiring and unimpeachable, therefore the site-plan which is not substantial piece of evidence (Reference my be made to decision of this Court in Sardar Khan & three others v. The State (PLJ 1988 SC 1398 (ix)) in presence of reliable ocular version as such would be confirmatory evidence. The ocular version coupled with medical evidence proved beyond shadow of doubt guilt of the appellants and mere inaccuracy in site-plan would not take away probative force of testimony in the case, considering also the fact that FIR was promptly lodged and there was no strong reason to falsely implicate the appellants in the case, in stead of real assailants of the deceased. In the circumstances it is held that ocular testimony of PWs. 11 & 12 is confidence inspiring and unimpeachable hence it cannot be excluded from consideration in arriving at a correct conclusion/finding.
So far as the contention of learned counsel for the appellants/accused that no inmate of the house of Aurangzeb was examined by the prosecution, it may be observed that it would not lead to adverse inference against the prosecution case considering the fact that Aurangzeb himself was not in the house and had gone to offer Isha prayers while other inmates, namely, wife and daughter of Aurangzeb were in another room and as the said ladies and the deceased persons and PWs were strangers to the ladies of Aurangzeb's family members, hence were not likely to be present in the same room as per tradition of the rural area prevailing and further that in such cases generally the women do not come forward to become witness at the risk of uncalled for enmity with the assailants and further that the prosecution has not said that women folk of Aurangzeb were present at the time of occurrence in the said room.
Next contention of learned counsel for the appellants that I.O. was not examined by the prosecution. It may be observed that in place of I.O. Azhar Hussain, PW-19 Mussarrat Ali Khan, Inspector was examined and he has confirmed and verified the investigation conducted by Azhar Hussain, S.I. who had worked under him and was not available in the country as he had been sent to Bosnia. Non-examination of I.O. Azhar Hussain, in the circumstances would not adversely affect the prosecution case as in his place Inspector Mussarat Ali Khan was examined to attest and certify the investigation of the case, hence it would not be fatal to the prosecution case. Reference may be made to (i) Muhammad Mansha v. The State (1992 SCMR 273) and (iii) Abdul Majeed vs. The State (1992 SCMR 379(b).
Next contention of the learned counsel for the appellants is that motive alleged is too remote and weak, therefore prosecution cannot succeed on the basis of said motive which took place about 16/17 years ago. It may also be observed that this Court has time and again held that even absence of motive is not helpful to the accused so also weakness of the motive would not come in the way of prosecution if there was otherwise strong, confidence inspiring, unimpeachable and reliable evidence in support of prosecution case considering that motive is always the state of mind of the accused which cannot be proved by ocular testimony because a number of such incidents appear to occur without any motive to the knowledge of the victim. Reference may be made to the decision of this Court in (i) Syed Mushtaq Ahmad v. Siddiqullah (PLD 1975 SC 160 at 165D), (ii) Abdul Rashid v. Umid Ali (PLD 1975 SC 227 at 236B), (iii) State v. Sobharo (1993 SCMR 585(c) at 592D), and (iv) Syed Hamid Mukhtar Shah v. Muhammad Azam (2005 SCMR 427(b) at 430C), though in the instant case PW-7 Muhammad Munir has deposed that 3/4 months before the present occurrence appellant/accused Haroon Rasheed had a quarrel with Hassan Akhtar, deceased, and he had intervened to compromise when both parties were present in the mosque, Jamroze Khan accused came there and proclaimed that till the revenge of previous enmity was not taken, no compromise would be effected and the present occurrence was the result of the said instigation of Jamroze Khan. It is true that his statement was recorded by C.I.A. after investigation was transferred to them which can also be the cause of present occurrence resulting in unnatural death of three young persons. Mere fact that statement of PW-7 Muhammad Munir was not recorded soon after the occurrence, it being the fault of Investigating Officer, would not be sufficient to hold that his testimony was not reliable and was liable to be discarded on that account only. Be that as it may, as time and again this Court has held that absence of motive itself if not a ground to hold that the prosecution was false when there existed strong, reliable and confidence inspiring evidence on record as observed in the above cases.
Next contention of learned counsel for the appellants that the ocular testimony of PW-11 and 12 was inconsistent to that of medical evidence has also no substance and merit considering that post-mortem report Ex. PJ of Hassan Akhtar, deceased, would show that he had sustained injuries Nos. 10, 11 and 12 on the neck and right hand. Post-mortem examination report Ex. PK of Muhammad Faris mentioned Injury No. 3 on the right cheek which was attributed to appellant/accused Muhammad Hanif, whereas post-mortem examination Ex. PL of Muhammad Saeed would show that he had sustained Injury No. 5 on the left shoulder which was inflicted upon him by appellant/accused Muhammad Raees with Kalashnikov. Besides, the above said injuries attributed to the above named appellant/accused had inflicted other injuries of firearm as well on the persons of deceased which was caused by indiscriminate firing by the appellant/accused, Muhammad Nawees, Muhammad Waqar and Muhammad Sarwar jointly as deposed and found by Dr. Muhammad Arshad PW-5 in his report and deposition. In the circumstances, the said contention has no merit and substance as the ocular testimony is consistent with the medical evidence. It may also be observed that no material inconsistencies have been pointed out by the learned counsel for the defence considering that it would only be material discrepancies coming into conflict with the material probabilities that would militate against the credibility of witnesses justifying the rejection of testimony. Reference may be made to supra cited case of Abdul Rashid v. Umid Ali (PLD 1975 SC 227(b) and 239H).
Next contention of learned counsel for the appellant that as per post-mortem examination Ex. PL of Muhammad Saeed, his stomach was found to be empty, whereas ocular version was that he had taken his meal at Maghrib time before going to the house of Aurangzeb, therefore the ocular account was inconsistent with the medical evidence. Even if it is assumed that said deceased had taken meal at Maghrib time which in the month of December takes place at about 5.00 p.m. and the deceased alongwith witnesses had gone to the house of Aurangzeb after 8.00 p.m. and thereby more than two hours passed, therefore in case light food was taken the same would have been completely digested and passed on. Be that as it may in (i) Ibrahim v. The State (1996 SCMR 773(b) at 776B) this Court has observed:--
"that according to text book of Medical Jurisprudence there may be circumstances which may vary the time and digestion to food in particular cases)."
(ii) Mansha & others v. The State (PLD 1971 Lahore DB 781 (c) at page 796 F, learned Division Bench of the High Court observed:--
"The contents of stomach do not by themselves provide the necessary information for determination of time of death."
(iii) Asghar v. The State (PLD 1958 W.P. Lahore 395(c) at 399A) learned Division Bench of the Lahore High Court has observed:--
"The state of digestion of the stomach is not a reliable test for fixing the hours of death."
(iv) Ghulam Hussain v. The State (PLJ 1984 Cr.C. Lahore D.B 521 at 525(b) learned Division Bench of the Lahore High Court observed:--
"Mere fact that Doctor in his examination in chief having stated that stomach of deceased containing semi-digested food would not ipso facto amount that time of occurrence given by first informant was not correct as it was mere opinion of doctor and would not lead to disbelieve the eyewitness who has deposed on oath and it could not be said that the witnesses were not present at the spot when their evidence inspiring confidence."
Next contention of learned counsel for the appellants that the said PWs had not sustained any injury in spite of indiscriminate firing of the deceased, therefore their presence was doubtful. We do not find any merit in this contention also. Admittedly as per ocular testimony and site-plan, the PWs and other victims were separated and were made to stand in the southern corner at Point No. 10 and the assailants had targeted the only deceased persons for which mission they came at the place of occurrence, therefore the indiscriminate firing having not been targeted to the PWs, hence no injury was sustained by the PWs whereas the site-plan and the ocular testimony would show that because of indiscriminate firing on the southern and eastern walls pellets marks were found at different levels which would suggest that though indiscriminate firing was made, it was not directed to any of the PWs but was made just in order to scare them from making interference in their mission. In the circumstances, it was not necessary that the PWs must have sustained injuries on their persons to prove their presence at the relevant time at the place of occurrence, considering the other memos of recovery and other evidence on record that the bodies were recovered from the said room of incident and some stains of blood were also found on the floor which after the removal of the dead bodies was cleaned and the bodies having been removed on the cots so also the chairs were removed on the arrival of the I.O.
So far the recovery of crime weapons and empties, learned Division Bench of the High Court has rightly observed that the same were pieces of evidence of corroboration and even if recovery is not proved, in presence of reliable, confidence inspiring and unimpeachable ocular testimony and other circumstantial evidence, it would not adversely affect the prosecution case as the said weapons and its recoveries if held to be tampered with subsequently.
We do not find any legal or factual infirmity in the perusal of evidence of the trial Court and learned Division Bench of the High Court and in the contention of learned counsel for the appellants. So far the quantum of sentence no mitigating circumstance has been put forward by the learned counsel for the appellants except that the motive was said to be weak or not proved which this Court time and again has held that it cannot be a ground for awarding lesser sentence as the same is always found to be in the mind of assailant, therefore no evidence could be brought to that effect which could be gathered only from other circumstantial evidence if direct evidence being not available. Three young persons have been done to unnatural death brutally as firing squad with dangerous fire-arms like kalashnikov and Rifels, therefore in my view normal punishment of capital sentence would be just an proper in the circumstances of the case. Reference may be made to the decision of this Court in Mir Hamid v. Muhammad Azam and two others (2005 SCMR 427 at 430(c), wherein this Court has observed:--
"Inadequacy of witnesses of the alleged motive or where motive had not been proved the assailant found guilty of causing of murder of another did not deserve any leniency and only in such like circumstances would be the sentence of death."
"Accused absconding immediately after the occurrence, police making search but accused found not available in village and arrested 8 days afterwards, such absconding of accused, held, a strong piece of corroborative evidence.
(ii) Beekho alias Imam Bus & two others v. The State (1973 PCr.L.J. (DB) 896 at 900B) wherein learned Division Bench of the High Court observed:
"Accused remaining absconding for four days after occurrence--Abscondence not explained satisfactorily--Conduct of accused, held weighs in favour of guilt in circumstances."
Learned trial Court has also at page 41 of the impugned judgment has observed:--
"About his abscondence, Muhammad Raees accused simply stated that he had no knowledge about the warrant and the proclamation issued against him. Long abscondence of Muhammad Raees accused for more than eight months is a strong piece of corroborative evidence against him. The prosecution complied with all the legal formalities to declare him Proclaimed Offender."
Besides other evidence on record, the evidence of abscondence being strong corroborative evidence has supported the case of prosecution about his implication in the commission of crime.
(A.A.) Appeal dismissed.
PLJ 2006 SC 151 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi & Saiyed Saeed Ashhad, JJ.
SARDARZADA ZAFAR ABBAS & others--Appellants
versus
SYED HASSAN MURTAZA and others--Respondents
Civil Appeals Nos. 1590, 1746 & 1815 of 2003, decided on 5.5.2005.
(On appeal from the judgment dated 8.9.2003 passed by the Election Tribunal Punjab, Lahore High Court, Lahore in Election Petitions Nos. 77, 106 & 13 of 2002).
(i) Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 15--Representation of People Act, (LXXXV of 1976), S. 55(3)--Verification of pleadings--Verification oath of election petition--Penal consequence and mandatory--Verification on oath of election petition was not attested by oath commissioner--Appellant filed same verification in shape of affidavit on a separate page--Duly attested by oath commissioner--Whether verification should be at the end of election petition on same page or any verification given on separate page would requirement in shape of affidavit. [P. 153] A
(ii) Representation of People Act, 1976 (LXXXV of 1976)--
----Ss. 55(3) & 56--Civil Procedure Code, (V of 1908), O. VI, R. 15--Verification of election petition--No material difference between a verification on oath and a verification through an affidavit--An affidavit is a sworn statement in writing while a verification is a confirmation in law by oath--Establishment of truth, accuracy and reality of a statement--No difference whatsoever by verifying a statement or oath and by verifying the same statement on affidavit--Impugned judgment is set aside--Case remanded. [P. 153] B
Mr. S.M. Masud, ASC for Appellant (in C.A. 1590/2003).
Mr. Hasnaat Ahmad, ASC for Respondent No. 1 (in C.A. 1590/2003).
Ex-parte other Respondents (in C.A. 1590/2003).
Mr. Ishzar-ul-Haq, ASC for Appellant (in C.A. 1746/2003).
Ex-part for Respondent (in C.A. 1746/2003).
Present-in-person for Appellant (in C.A. 1815/2003).
Mr. Shahid Karim, ASC for Respondent No. 1 (in C.A. 1815/2003).
Ex-parte other for Respondents (in C.A. 1815/2003).
Date of hearing : 5.5.2005.
Judgment
Sardar Muhammad Raza, J.--All the appellants namely, Sardarzada Zafar Abbas, Brig. (R) Muhammad Usman Khan Tarar and Asif Nawaz Fatiana had contested General Elections held on 10.10.2002. The returned candidates were the respondents namely, Syed Hassan Murtaza, Ch. Mehdi Hassan Bhatti and Walayat Shah respectively. In petitions before the Election Tribunal, the returned candidates raised a preliminary objection that the election petitions under Section 55 of Representation of the People Act of 1976, were not duly verified on oath and hence were liable to be summarily dismissed.
The learned Tribunal after discussing the law and the case-law came to the conclusion that the petitions were not verified on oath in accordance with law and thus, dismissed the same through a common judgment dated 6.9.2003. The instant appeals, involving similar question of law and facts, are being decided through this single judgment.
The verification on oath of the contents of an election petition, is provided under Section 55(3) of the Representation of the People Act of 1976, (hereinafter to be referred to as the Act). It provides that every election petition and every schedule or annexure to petition shall be signed by the appellant and verified in the manner laid down in the Code of Civil Procedure, 1908. The code contains such provisions under Order 6, Rule 15, which requires the verification of pleadings on oath. Such verification is not to be signed in routine by the deponent but being on oath, it requires to be attested either by the Oath Commissioner or any other authority competent to administer oath. It needs hardly to be emphasized that every oath is to be practically administered.
So far as, the provisions of civil law are concerned, such verifications generally are of directory nature. An omission to do so can be rectified subsequently during trial and even the Court can direct such rectification. While, on the other hand, under election laws such verification on oath is mandatory because of being followed by penal consequences under Section 63(a) of the Act that makes it mandatory for the Tribunal to dismiss election petition if the provisions of Sections 54 and 55 of the Act have not been complied with. Similar view was taken by this Court in Iqbal Zafar Jhagra's case (2000 SCMR 250(n)), though related to the Senate elections. It is, therefore, settled that the verification on oath of an election petition though mannered in accordance with Civil law yet it entails upon penal consequences and hence is mandatory.
Having held so, we come to the assertions of the learned counsel for the appellants that once an election petition, under the provisions of Section 56 of the Act, stands forwarded by the Chief Election Commissioner to the Tribunal, the Tribunal cannot enter into the aforesaid questions and dismiss the petition on grounds of non-verifications. Section 56 of the Act provides that if the Commissioner finds that any provision of Sections 52, 53 or 54 of the Act, has not been complied with, the petition shall be dismissed forthwith and if it is not so dismissed, it shall be referred to the Tribunal for trial. It is quite significant that the lawmaker, having specifically referred to Sections 52,53 and 54 of the Act, has distinctly omitted to mention Section 55 of the Act. Meaning thereby, that the requirements of Section 55 of the Act would be gone into by the Tribunal itself and not by the Chief Election Commissioner. We hold that such objection can validly be raised before the Tribunal and Tribunal alone.
Learned counsel for the respondents drew our attention to judgment of Election Tribunal in case of Muhammad Azad Gul (1997 CLC 1132) that happens to be authored by me as Tribunal of Peshawar High Court. In that judgment too, such verification was considered mandatory but the point of distinction is that in that case the petitioner had neither signed the petition nor had got it verified on oath as provided under Section 55(3) of the Act read with Order 6, Rule 15 of the CPC. The distinguishing aspect in the instant case is that though the verification on oath on the last page of the election petition is not attested by the Oath Commissioner yet the appellant has filed the same verification in the shape of affidavit on a separate page which is duly attested by the Oath Commissioner on the same date. The controversy now boils downs to the only point as to whether the verification should be at the end of election petition on the same page or any verification given on a separate page would meet the requirement though in the shape of an affidavit.
We have considered this aspect thoroughly and have come to the conclusion that in the given circumstances, there is no material difference between a verification on oath and a verification through an affidavit. An affidavit is a sworn statement in writing while a verification is a confirmation in law by oath in order to establish the truth, accuracy and reality of a statement of fact. Thus, there is practically no difference whatsoever by verifying a statement on oath and by verifying the same statement on affidavit. It also loses significance when such affidavit on oath is attested by the authority competent to administer oath. The objection as to why such verification is on a separate page or leaf, is rather, too immature to be taken notice of and sustained.
Learned counsel for the respondent raised another objection that the election petitioners in their verifications have failed to give reference to the paragraphs of the pleadings as to what he either happened to verify on his own knowledge and what he happened to verify upon information received and believed to be true. Such objection is not very material because at times the entire statement happens to be given on the basis of one's knowledge and at times on the basis of information received. It depends upon the facts of each case, as to what category the assertions belong. The situation is likely to differ from case to case.
Consequent upon, what has been discussed above, we are of the view that in the instant cases, the mandatory provisions of Section 55(3) of the Act had duly been complied with and there was no reason for the Tribunal to dismiss the petitions on the preliminary objections raised. All the three appeals are hereby accepted, the impugned judgment dated 8.9.2003 is set aside and the cases are remanded to the Tribunal for holding the trial on merits.
(A.S.) Case remanded.
PLJ 2006 SC 154 [Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar & Karamat Nazir Bhandari, JJ.
MUHAMMAD TARIQ--Petitioner
versus
DEPUTY COMMISSIONER, NAROWAL etc.--Respondents
Civil Petition No. 3589-L of 2002, decided on 18.11.2005.
(On appeal from judgment dated 12.6.20002 by the Punjab Service Tribunal, Lahore, in Appeal No. 2632/2000).
Constitution of Pakistan, 1973--
----Art. 212--Petitioner proceeded against for commission of misconduct and awarded major penalty of dismissal from service--Appeal before Service Tribunal failed--Challenged before Supreme Court--Reduction of penalty--Held: In view of peculiar facts and circumstances of the case and the back ground in which occurrence had taken place the case of reduction of extreme departmental penalty deems to have been made out--Petition converted into appeal and partly allowed--Penalty of dismissal from service awarded by departmental authorities and Tribunal converted into removal from service--Appeal allowed. [P. 155] A, B, C & D
Mr. Parvaiz Inayat Malik, ASC and Mr. Tanvir Ahmad, AOR, for Petitioner.
Nemo for Respondents Mr. Zubair Khalid, AAG, Punjab (On Court's Call).
Date of hearing : 18.11.2005.
Judgment
Faqir Muhammad Khokhar, J.--The petitioner seeks leave to appeal from judgment dated 12.6.2002, passed by the Punjab Service Tribunal, Lahore, in Appeal No. 2632/2000.
The petitioner, a Junior clerk, in the office of Deputy Commissioner, Narowal was dismissed from service by order dated 16.7.1999. His appeal was also dismissed by the Commissioner, Gujranwala Division, on 17.11.1999 on charges of misconduct for causing injuries to his colleague and for refusing to relinquish the charge on his transfer.
The learned counsel for the petitioner does not press this petition on merits but seeks the indulgence of this Court for modification of extreme penalty of dismissal from service and its conversion into removal from service.
The learned Assistant Advocate General, Punjab has approved the request of the petitioner.
We have heard the learned ASC and the Assistant Advocate General, Punjab. In the peculiar facts and circumstances of the case and the background in which the occurrence had taken place the case of reduction of extreme departmental penalty seems to have made out. Therefore, this petition is converted into appeal and is partly allowed. The penalty of dismissal from service of the petitioner as awarded by the departmental authorities and the Tribunal is converted into removal from service. The orders of the departmental authorities and the Tribunal shall also stand modified accordingly.
(R.A.) Appeal allowed.
PLJ 2006 SC 155 [Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar & Karamat Nazir Bhandari, JJ.
MR. ADAM KHAN--Petitioner
versus
INSPECTOR GENERAL OF POLICE, PUNJAB LAHORE--Respondent
Civil Petition No. 3032-L of 2002, decided on 16.11.2005.
(On appeal from judgment dated 29.7.2002 passed by the Punjab Service Tribunal, Lahore in Appeal No. 1347/2000).
Constitution of Pakistan, 1973--
----Arts. 185 & 212 thereof--Petitioner Foot-Constable--Dismissed from service by S.P. Multan--Departmental appeal dismissed--Revision allowed by D.I.G. Multan--Petitioner reinstated in service without back benefits--Intervening period treated as leave of the kind due--Appeal before Service Tribunal praying for grant of back benefits--Dismissed--Leave sought from Supreme Court on grounds that petitioner entitled to grant of back benefits consequent upon re-instatement in service--Contention repelled--Held: Matter remained pending for a considerable period and the petitioner failed to pursue with due diligence--Impugned judgment does not suffer from any legal infirmity so as to warrant interference by Supreme Court--Petition dismissed. [Pp. 156 & 157] A, B, C, D, E & F
1991 SCMR 135 and 1996 SCMR 413 ref.
Mr. Perviaz Inayat Malik, ASC Mr. Tanvir Ahmad, AOR for Petitioner.
Nemo for Respondent.
Date of hearing : 16.11.2005.
Judgment
Faqir Muhammad Khokhar, J.--The petitioner seeks leave to appeal from judgment dated 29.7.2002, passed by the Punjab Service Tribunal, in Appeal No. 1347/2000.
The petitioner, a Foot-Constable was dismissed from service by the Superintendent of Police, Multan, by order dated 30.11.1985. His appeal there-against was also dismissed by the Deputy Inspector General of Police. Multan Range, Multan. His revision petition was accepted by the Inspector General of Police, by order dated 26.4.2000 whereby, the petitioner was reinstated in service but without back benefits. The intervening period was treated as leave of the kind due. Therefore, the petitioner moved the Tribunal for back benefits, by filing Appeal No. 1347/2000, which was dismissed by the impugned judgment dated 29.7.2002. Hence this petition for leave to appeal.
The learned Counsel for the petitioner argued that since the petitioner was not at fault, therefore, he was entitled to the grant of back benefits consequent upon reinstatement in service. Reliance was placed on the cases of Mrs. Munawar Sauni versus Director, Army Education (1991 SCMR 135) and Secretary to Government of NWFP Zakat Social Welfare Department Peshawar and another versus Sadullah Khan (1996 SCMR 413).
We have heard the learned counsel for the petitioner at some length and have also gone through the available record. We find that despite the directions given by the Tribunal in the earlier round of litigation for deciding the revision petition of the petitioner within three months, the matter remained pending for a considerable period. The petitioner failed to pursue the matter with diligence and he allowed his revision petition to remain in a state of limbo for a long period. He also failed to furnish any satisfactory evidence that during the interregnum he did not work anywhere for gain and remained jobless. The Tribunal was quite justified in refusing back benefits to the petitioner in the peculiar facts and circumstance of the case. The ratio laid down in the precedent cases referred upon by the learned Counsel is distinguishable on facts of the present one. This is not a fit case for grant of leave to appeal. The impugned judgment does not suffer from any legal infirmity so as to warrant interference by this Court.
For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly.
(R.A.) Petition dismissed.
PLJ 2006 SC 157 [Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar & Karamat Nazir Bhandari, JJ.
SAFDAR HUSSAIN SHAH--Petitioner
versus
SUPERINTENDENT OF POLICE, SAHIWAL and others--Respondents
Civil Petition No. 3035-L of 2002, decided on 16.11.2005.
(On appeal from judgment dated 13.6.2002 passed by the Punjab Service Tribunal, Lahore in Appeal No. 72/1996).
Constitution of Pakistan, 1973--
----Arts. 185 & 212--Petitioner ex-Constable-proceeded against--Served with a show cause notice--Allegations of mis-conduct--Allegations refuted in reply--failed to appear for personal hearing--Dismissed from service--Challenged before PST--Appeal failed--Resort to Supreme Court on grounds no regular inquiry held to resolve disputed questions of facts--Held: Departmental authorities had considered the case of the petitioner threadbare--Tribunal also recorded findings of fact against the petitioner--Impugned judgment of Tribunal is just and fair to which no exception can be taken--Even present petition does not involve any question of law of public importance within the meaning of Art. 212(3) of Constitution of Pakistan resultantly leave refused--Petition dismissed. [P. 158 & 159] A, B, C, D, E & F
(ii) Punjab Police--
----Where an employee fails to appear for personal hearing shorter procedure of show cause notice would be considered as sufficient requirement of law. [P. 158] D
Mr. Pervaiz Inayat Malik, ASC and Mr. Tanvir Ahmad, AOR for Petitioner.
Nemo for Respondent.
Date of hearing : 16.11.2005.
Judgment
Faqir Muhammad Khokhar, J.--The petition seeks leave to appeal from judgment dated 13.6.2002 passed by the Punjab Service Tribunal, in Appeal No. 72/1996.
The petitioner, an ex-Constable, was proceeded against departmentally under the Punjab Police (Efficiency and Discipline) Rules 1975. He was served with a show-cause notice dated 5.5.1992, on the allegation that during the investigation of case FIR No. 106 dated 12.4.1992 under Section 13 of the Arms Ordinances 1965 registered at Police Station City Arif Wala, District Pak Pattan, it was found that an illicit .12 bore pistol was sold by him to one Rafaqat from whose possession the same was recovered. The petitioner submitted his reply to the show-cause notice. Thereafter, he was called in the orderly room for personal hearing on 17.11.1993 but he absented himself in order to avoid his appearance. He was again summoned as many as six times but he did not appear. Therefore, the Superintendent of Police Sahiwal, by order dated 20.11.1993 dismissed him from service w.e.f. 17.11.1993. He filed departmental appeal, which was also dismissed by the Deputy Inspector General of Police, Multan Range, by order dated 22.2.1995. His revision petition was also turned down by the Additional Inspector General of Police by order dated 4.1.1996. Therefore, he preferred Appeal No. 72/1996, which was also dismissed by the impugned judgment dated 13.6.2002, passed by the Tribunal.
The learned Counsel for the petitioner argued that in the light of the reply submitted by the petitioner to the show-cause notice, a regular inquiry was required to be held to prove the charges. The nature of the charges was such which could not have been inquired into merely by issuance of show-cause notice.
We have heard the learned counsel for the petitioner at some length and have also gone through the available record. We find that the petitioner was summoned for personal hearing several times to explain his position before the competent authority but despite service of notices he avoided his appearance. Rather he absented from duty. All the departmental authorities had considered the case of the petitioner threadbare. The Tribunal also recorded findings of fact against the petitioner. The impugned judgment of the Tribunal is just and fair to which no exception can be taken. Even otherwise, this petition does not involve any substantial question of law of public importance within the meaning of Article 212(3) of the Constitution of Islamic Republic of Pakistan.
For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly.
(R.A.) Petition dismissed.
PLJ 2006 SC 159 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ.
FAZAL SUBHAN & 11 others--Petitioners
Versus
Mst. SAHIB JAMALA and others--Respondents
Civil Petitions Nos. 424 & 528 of 2004, decided on 18.5.2005.
(On appeal from the judgment of Peshawar High Court, Peshawar, dated 20.1.2004 passed in CRs 379 & 393/2003).
(i) NWFP Pre-emption Act, 1987 (X of 1987)--
----S. 13--Civil Procedure Code (V of 1908), O. VI, R. 2--Performance of Talabs--Non disclosure of necessary particulars in the plaint--Sale took place on 29.1.1990 and notice of Talab-e-Ishhad was given on 15.8.1990 showing that performance of Talab-e-Muwasibat was made a week ago, whereas no date place of such talabs had been specified in the plaint--There was nothing in evidence that on which particular date, the pre-emptor acquired knowledge of transaction--PW who claimed to have conveyed such information to the pre-emptor clearly stated in cross-examination that he had already in knowledge of sale--PW was not got re-examined by pre-emptor--Held: Plaintiffs could not get benefit of the judgment of Supreme Court published as 2000 SCMR 329--Judgment of High Court was set aside and that of trial Court vide which suit had been dismissed was restored by Supreme Court.
[Pp. 164, 164, 166 & 167] A, D, J, L & M
(ii) NWFP Pre-emption Act, 1987 (X of 1887)--
----S. 13--Object of Talabs--Held: S. 13 had been based on the concept of Talabs, recognized as the rule of Islamic Law of Pre-emption according to which fulfilment of Talabs, for the exercise of right of pre-emption, was essential and without which such right was to be extinguished. [P. 164] B
(iii) NWFP Pre-emption Act, 1987 (X of 1887)--
----S. 13--Civil Procedure Code, (V opf 1908) O. VI, R. 2--Performance of Talabs--Disclosure of date & place in plaint--Held : According to the general principle performance of Talab-e-Muwasibat and Talab-e-Ishhad must be specifically pleaded in plaint by giving date and place and without gist of evidence & the names of witnesses--Without performance of Talab-e-Muwasibat, Talab-e-Ishhad was meaningless to maintain the suit--Talab-e-Ishhad was based on the performance of Talab-e-Muwsibat and a pre-emptor who could not prove Talab-e-Muwasibat, could not succeed on the basis of proving Talab-e-Ishhad. [P. 164] C
(iv) NWFP Pre-emption Act, 1987 (X of 1887)--
----S. 13--Civil Procedure Code (V of 1908), O. VI, R. 2--Disclosure of date and place of Talabs in plaint--Held : Disclosure of facts relating to the performance of talabs was a pure question of fact and it would be sufficient to disclose their performance but the performance of talabs and the ancillary questions must be proved through reliable evidence.
[Pp. 164 & 165] E
(v) Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 2--Disclosure of material facts--Held : Each material fact was not required to be given in pleading and similarly names of witnesses or gist of evidence was not required to be mentioned but basic facts which were considered foundation of the case must be pleaded--A fact not disclosed could not be subsequent allowed to be proved and so if a party wanted to prove a particular fact not pleaded, could not be permitted to lead evidence on such fact for the reason that other party could not set up his case in rebuttal in his written statement. [P. 165] F
(vi) NWFP Pre-emption Act, 1987 (X of 1987)--
----S. 13--Performance of Talab--Held : It was the requirement of law to make Talab-e-Ishhad within 2 weeks from the date of making Talab-e-Muwasibat and if Talab-e-Muwasibat was not satisfactorily proved, the making of Talab-e-Ishhad within specified time could not be proved.
[P. 165] G
(vii) NWFP Pre-emption Act, 1987 (X of 1987)----
----S. 13--Civil Procedure Code (V of 1908), O. VI, R. 2--Performance of Talabs--Disclosure of material particulars in plaint--Held: Talab-e-Muwasibat was made beyond 2 weeks from the date of transaction of sale, it would be essential to disclose the specific date of his knowledge and the place of majlis in which, he made Talab-e-Muwasibat failing which Talabs would not be proved. [P. 166] H
(viii) Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R.2--Qanun-e-Shahadat Order, (10 of 1984) Art. 30--Evidence beyond pleading--Evidentiary value--Held: The statement of a witness on a fact contrary to the pleading of the party which produced him, in Court was not as such as admission of the party on such fact but such statement would be binding on that party. [P. 166] K
(xiv) NWFP Pre-emption Act, 1987 (X of 1987)--
----S. 13--Performance of talab-e-muwasibat--Meaning of Majlis--Held : As the existence of a majlis a most material fact related to the performance of Talab-e-Muwasibat the constitutents of the Majlis are also necessarily to be mentioned--Such constitution of Majlis are nothing but the members thereof who ultimately are the witnesses to the Talab-e-Muwasibat. [P. 168] N
2000 SCMR 329; PLD 2003 SC 315; 2005 SCMR 1231; PLD 1986 SC 360 & 2001 SCMR 798, ref.
Mr. Gulzarin Kiani, ASC and Mr. M.S.A. Khatta, AOR for Petitioners (in C.P. 424/2004).
Mr. Abdul Aziz Kundi, AOR for Respondent (in C.P. 424/2004).
Mr. Abdul Aziz Kundi, ASC/AOR for Petitioner (in C.P. 528/2004).
Mr. Gulzarin Kiani, ASC and Mr. M.S.A. Khatta, AOR for Respondent (in C.P. 528/2004).
Date of hearing : 18.5.2005.
Judgment
Muhammad Nawaz Abbasi, J.--These two petitions filed under Article 185(3) of the Constitution of Islamic Republic of Pakistan involving common question of law and facts, have been directed against the judgment dated 20.1.2004 passed by a learned Judge in chambers of Peshawar High Court in two connected civil revisions arising out of suit for pre-emption.
The brief facts in the background are that land measuring 40 kanals situated in revenue estate Nari Tehsil Takhat
Bhatti District Mardan, was sold by Khalid Khan vide mutation dated 29.1.1990 to the predecessor-in-interest of petitioners in CP 424/04 (hereinafter to be referred to as the petitioners') for a consideration of rupees seven lacs and sale was pre-empted by Haji Fazalur Rehman, predecessor-in-interest of respondent in the above petition (hereinafter to be calledthe respondent').
The suit was resisted by the petitioners on various grounds and the main attack was that talab-e-muwatabit and talab-e-ishhad were not fulfilled in accordance with law. The learned trial Judge dismissed the suit vide judgment dated 9.10.2002 but in appeal preferred by Mst. Sahib Jamala, respondent herein, a learned Addl. District Judge, Mardan, camp at Takht Bhai, while reversing the findings of the trial Court on the pivotal issues, decreed the suit vide judgment dated 18.4.2003. The cross revision petitions filed by the parties before the High Court were disposed of vide a consolidated judgment whereby the revision petition filed by the petitioners was dismissed and the revision filed by respondent was allowed.
Learned counsel for the petitioners while challenging the concurrent findings of facts on various issues, concentrated on the fundamental question relating to the performance of talabs and consequently, we deem it proper to decide this basic question at the first instance and the decision of remaining issues would depend upon the decision of this basic issue. Learned counsel for the petitioners contended that Talab-e-Muwathebith was proved through oral evidence whereas the requirement of talab-e-ishhad was proved through the documentary evidence and to prove the performance of talbs with reference to the specific date and time or place as was held by this Court, was not necessary. The learned counsel has placed reliance on Noor Muhammad vs. Abdul Ghani (2000 SCMR 329).
Learned counsel for the respondent, on the other hand, in the light of the view taken by this Court in Abdul Qayum through legal heirs vs. Mushk-e-Alam and other (2001 SCMR 798) and in an unreported judgment given in Civil Appeal No. 560 of 1995 (Zarghoon Shah (deceased) through his L.Rs. Muhammad Yaqoob Khan) decided on 26.6.1998, contended that in a suit for pre-emption, in similar circumstances, it was held that the requirement of making talab-e-muwathebith without specifying the date and place as well as the meeting in which announcement for exercising the right of pre-emption, was not proved. The pre-emptor in the present case placing reliance on the sole statement of Fazal Qadir (PW-6), claimed performance of talab-e-muwathebith and according to this witness, on 8.8.1990 when he was on his way to the village of Haji Fazalur Rehman (plaintiff) Wahid Khan (vendor) told him about the sale and he informed this fact to Haji Fazalur Rehman on the same day at his dera in present of Nawab and Fazal. In cross-examination, he stated that Khalid Khan, vendor, also told him that sale was already in the knowledge of Haji Fazalur Rehman. The High Court having treated the statement of this witness, as admission of the pre-emptor in terms of Articles 30 to 36 of Qanun-e-Shahadat Order, 1984 held that the statement made by a witness against the interest of the party which produced him is although binding on such party but the substantive right of the parties must not be decided on the basis of only such an inconclusive admission and the list must be decided in the light of whole evidence. The conclusion drawn by the learned Judge in the High Court was that from the evidence on record, it was sufficiently established that the talabs were performed talabs in accordance with the requirement of Section 13 of NWFP Pre-emption Act, 1987 and upheld the findings of the appellate Court with the observation that performance of Talab-e-Ishhad was not disputed whereas the fulfillment of the requirement of talab-e-muwatabith about a week ago, was mentioned in the notice of talab-e-ishhad, therefore, the missing of specific date of making talab-e-muwatabit in the plaint or in the evidence was not fatal.
Having considered the argument of the learned counsel for the parties and perused the record with their assistance, we in the light of the views of this Court in the above referred judgments, regarding the manner of performance of talabs for exercise of right of pre-emption, deem it proper to examine the provisions of Section 13 of NWFP Pre-emption Act, 1987:--
"13. Demand of Pre-emption.--(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:--
(a) talb-i-Muwathibath;
(b) talb-i-ishhad; and
(c) talb-i-khusumat
Explanations:
I. "talb-i-Muwathibat" means immediate demand by a pre-emptor in the sitting or meeting (majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre-emption.
Note.--Any words indicative of intention to exercise the right of pre-emption are sufficient.
II. "Talb-i-ishhad" means demand by establishing evidence, III. "Talb-i-Khusumat" means demand by filing a suit.
(2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make talb-i-Muwathibat.
(3) Where a pre-emptor has made talb-e-muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under Section 34, or knowledge, whichever may be earlier, make talb-i-ishhad by sending notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vendee, confirming his intention to exercise the right of pre-emption:
Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make talb-e-ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of talb-i-muwathibat under sub-section (2) and Talb-i-Ishhad under sub-section (3), he shall make talb-i-khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."
There was general law of pre-emption in practice in the Provinces of Punjab and NWFP prior to the enforcement of Punjab Pre-emption Act, 1913, and NWFP Pre-emption Act, 1959, according to which the requirement of talabs for exercise of right of pre-emption was essential and talab-e-muwatabit was to be made immediately on acquiring the knowledge of the sale failing which the pre-emptor would loose right of pre-emption. The purpose was that the pre-emptor must exercise the right of pre-emption in strict compliance of the requirement of talabs and must not be encouraged to defeat sale and the existing law is almost based on the same concept.
The perusal of the notice, (Exp. P-7, dated 15.8.1990 of talab-e-ishhad would show that performance of talab-e-muwatabit was made a week ago in presence of witnesses whereas in the plaint, the performance of talab-e-muwatabit was claimed in general terms without specifying the date, place or the meeting in which the announcement was made for exercise of right of pre-emption. The provisions of Section 13 of NWFP Pre-emption Act, 1991 are based on the concept of talabs which are recognized as the rule of Islamic Law of pre-emption according to which for exercising of right of pre-emption, fulfillment of requirement of talabs is essential and without performance of talab-e-muwatabit and talab-e-ishhad, right of talab-e-khusumat is extinguished. The existing law of pre-emption is not different to that of the above concept of Islamic Law of Pre-emption because NWFP Pre-emption Act, 1991 was enacted in the light of the judgment in Said Kamal's case (PLD 1986 SC 360) wherein the old NWFP Pre-emption Act, 1950 was declared repugnant to the Injunctions of Islam.
This is settled law that pleading of a party is based on the statement of facts given therein which are proved by producing evidence at the trial and in that the names of witnesses and gist of evidence is not required to be given in the plaint or written statement as it is not part of pleadings rather pleading is contained only on material facts. This general principle of law of pleadings is applicable to all suits and no exception can be taken in the suit for pre-emption and consequently, according to the general principle, the performance of talab-e-muwatabit and talab-e-ishhad must be specifically pleaded in the plaint by giving the date and the place of its making without giving the gist of evidence and the names of witnesses. Talab-e-muwatabit is the first talab for exercise of right of pre-emption and without performance of talab-e-muwatabit, the performance of talab-e-ishhad is meaningless to maintain the suit. The second talab is talab-e-ishhad which is based on the performance of talab-e-muwatabit and a pre-emptor who has not been able to prove performance of talab-e-muwatabit, cannot succeed in the suit merely on the basis of proving talab-e-ishhad. It is the settled law that a fact which is not pleaded in the plaint, cannot be allowed to be proved through evidence. In the present case, the pre-emptor in general terms claimed performance of talab-e-muwatabit in the notice of talab-e-ishhad on the basis of information conveyed to him by (PW6) without disclosing the place and the date on which he on coming to know about the sale made talab-e-muwatabit. The sale took place on 29.1.1990 and notice of talab-e-ishhad was given on 15.8.1990 wherein the making talab-e-muwatabit was claimed a week before the issue of notice talab-e-ishhad, therefore, the sole question for determination would be whether requirement of talab-e-muwatabit without giving the date, time and place in the plaint alongwith the names of persons who were present in the majlis in which the announcement was made for filing the suit for pre-emption was fulfilled. The disclosure of the fact relating to the performance of talabs is pure question of fact and in the plaint it would be sufficient to disclose the performance of both talab-e-muwatabit and talab-e-ishhad to exercise the right of pre-emption and determination of the ancillary question for the purpose of establishing such right but the performance of talabs must be proved through the reliable evidence. This Court in Noor Muhammad vs. Abdul Ghani (2000 SCMR 329) decided by a bench comprising of five learned Judges, has held that mentioning of time, date and place or names of witnesses in whose presence talab-e-muwatabit was made, was not necessary requirement of law to establish performance of talab-e-muwatabit whereas in a subsequent case Muhammad Saleem vs. Khuda Bakhsh (PLD 2003 SC 315) decided by a bench of three learned Judges, it was held that right of pre-emption was not activated unless talab-e-muwatabit was performed specifying the date and time in the pleadings for the reason that time for performing talab-e-ishhad was to be counted from the date of talab-e-muwatabit. In another judgment of this Court Muhammad Siddique vs. Muhammad Sharif (2005 SCMR 1231), it was reiterated that if the proof regarding date, time and place of making talab-e-mutawatabit and acquiring knowledge by the plaintiff about the transaction of sale is given in general terms, performance of talab-e-mutawatabit and talab-e-ishhad is not satisfied. The subsequent view taken by the different benches of this Court on the face of it appears to be in conflict to that of the earlier judgment given by a bench of five judges and in the light of rule of propriety the judgment rendered by a larger bench is given preference but we having perused the judgments, referred above, find that in principle, there was no difference of opinion on the question of law rather the legal position with reference to the peculiar facts of the each case, was discussed in different manner. There can be no cavil to the proposition that each material fact is not required to be given in pleadings and similarly, the names of witnesses or gist of evidence is also not required to be mentioned in the plaint but the basic facts which are considered the foundation of the case of a party, must be disclosed in the plaint. This is settled law that a fact which was not disclosed in the pleadings, cannot be subsequently allowed to be proved and thus if a party wants to prove a particular fact which was not pleaded, cannot be permitted to lead evidence on such fact for the reason that second party could not set up his case in rebuttal in the written statement. In Noor Muhammad vs. Abdul Ghani (2000 SCMR 329) the plaintiff pleaded performance of talab-e-mutawatabit in the plaint without giving time and place of making this talab and in the subsequent judgment, talab-e-mutawatabit was also pleaded in general terms, therefore, it was observed that without proving talab-e-muwatabit which was foundation of the case of pre-emptor right of pre-emption could not be exercised. It is the requirement of law to make talab-e-ishhad within two weeks from the date of making talab-e-muwatabit and if making of talab-e-muwatabit is not satisfactorily proved the making talab-e-ishhad within the specified time cannot be proved and in consequence thereto the right of pre-emption is defeated. The principle laid down in the first case referred above, would definitely be applicable to a case in which talab-e-muwatabit is made immediately after the sale and talab-e-ishhad is made within two weeks form the date of sale. In such a case, only reference of talab-e-muwatabit in the notice talab-e-ishhad and in the plaint, would be sufficient but in a case in which the pre-emptor having claimed to acquire the knowledge of sale beyond the date of sale pleaded making of talab-e-muwatabit in general terms without specifying date and other necessary particulars of talab-e-muwatabit, this basic condition for exercising the right of pre-emption would remain unproved. In such situation, it would be essential for the pre-emptor to prove the correct date of knowledge and the place of meeting in which he announced for the exercise of right of pre-emption. The performance of talab-e-ishhad is the second talab, the fulfillment of which depends upon the presence of talab-e-muwatabit and unless the date and place of making talab-e-muwatabit is specifically mentioned in the plaint or proved through the evidence, the performance of talab-e-ishhad cannot be claimed to have been proved in terms of Section 13(3) of the ibid Act. Talab-e-muwatabit in terms of Section 13 means the immediate demand by a pre-emptor in the sitting or a meeting (majlis) in which he has come to know about the sale and declared intention for exercise of right of pre-emption and talab-e-ishhad is second talab which is essentially performed within two weeks from the date of performance of talab-e-muwatabit. The explanation to sub-section (1) of Section 13 provides that requirement of disclosing particulars of majlis is essential and without proving the date, time and place of meeting, it would not be ascertainable that when and in which majlis and in whose presence, pre-emptor made announcement for exercising the right of pre-emption. In nutshell, in a case in which talab-e-muwatabit was made beyond the period of two weeks from the date of transaction of sale, it would be essential for the pre-emptor to disclose the specific date of his knowledge and place of majlis in which he made talab-e-muwatabit, failing which neither talab-e-muwatabit nor talab-e-ishhad would be proved. In the present case, there is nothing in the evidence that on which particular date, the pre-emptor acquired the knowledge of transaction as Fazal Qadir (PW-6) who claimed to have conveyed the information of sale to the pre-emptor on 8.8.1990, has clearly stated in cross-examination that pre-emptor was already in the knowledge of sale whereas the pre-emptor asserted that he on coming to know about the sale on 8.8.1990 through Abdul Qadir (PW6), there and then made talab-e-muwatabit. In these circumstances, the claim of pre-emptor that he had no prior knowledge of sale and made talab-e-muwatabit on the information given to him by Abdul Qadir, would not be proved in the entire satisfaction of the requirement of law. Therefore, the presumption would be that pre-emptor had the knowledge of sale before making the announcement for exercising the right of pre-emption. The statement of a witness on a fact contrary to the pleading of the party which produced him in the Court, is not as such an admission of that party on such fact but the statement of such witness would be binding on such party. In the present case, we find that Fazal Qadir (PW-6) has clearly stated that prior to his conveying the information to the pre-emptor about the sale, he had already information about the transaction and thus the pre-emptor having not re-examined the witness, impliedly conceded the knowledge of sale prior to 8.8.1990. In these circumstances, the petitioners pre-emptor cannot get benefit of judgment rendered in Noor Muhammad vs. Abdul Ghani (2000 SCMR 329).
In the light of foregoing discussion, we convert CP 424/04 into appeal, set aside the judgment of the High Court and restore that of trial Court. The appeal stands allowed with no order as to costs. CP 528/03 is dismissed accordingly and leave is refused.
Sd.
Sardar Muhammad Raza Khan, J.--While agreeing with the conclusion drawn by my learned brother Honourable Mr. Justice Muhammad Nawaz Abbasi, I would dilate upon the question whether to mention the details of talb-i-muwathebat in the paint or not.
The debate on this question started with a judgment of a Division Bench of Peshawar High Court reported as Abdul Qayyum Khan vs. Musa Khan (1995 CLC 729) decided on 5.12.1994 where it was held that the details of talb-i-muwathebat like time, place and the persons before whom such talb is made, are necessary to be mentioned in the plaint. Soon thereafter similar view was taken by the Supreme Court in Shafi Muhammad v. Hazar Khan (1996 SCMR 346) where it was categorically held that the mention of any of the particulars which required to be disclosed in connection with talb-i-muwathebat and talb-i-ishhad, was necessary to be made in the plaint. The particulars required to be disclosed obviously were the same which were determined in the judgment of the Peshawar High Court in case of Abdul Qayyum Khan (supra).
Thereafter various Benches of this Court and different view until a larger Bench judgment in Altaf Hussain's case (2000 SCMR 314) wherein it was held that a plaintiff could not be non-suited on the ground that date, time and place were not specifically pleaded in the plaint. This judgment, no doubt of a larger Bench, was again distinguished by this Court in Haji Muhammad Saleem v. Khuda Bukhsh (PLD 2003 SC 315) on the main ground, inter alia, that a most important aspect of limitation attached to talb-i-muwathebat was not considered by the larger Bench and had it been considered, the conclusion would have been different altogether. The aforesaid view of a Full Bench of this Court was further reiterated in Akbar Ali Khan's case (PLJ 2005 SC 844), rendered by another Bench of three Judges.
Apart from limitation involved in the matter of talb-i-muwathebat, I may refer even with reference to Order 6, Rule 2 of the CPC that the detailed particulars of talb-i-muwathebat are necessary to be mentioned in the plaint even under Order 6, Rule 2 and Rule 4 of the CPC. For convenience of reference, Order 6, Rule 2 is reproduced:
"2. Pleading to state material facts and not evidence.--Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved and shall, when necessary, be divided into paragraphs, numbered consecutively, Dates, sums and numbers shall be expressed in figures."
The rule aforesaid requires every pleading to contain only the material facts on which the claim or defence is made. In the matter under discussion the material fact is talb-i-muwathebat. This talb is peculiar in its nature and explains that talb-i-muwathebat is to be performed in a Majlis where the information of sale transaction was disclosed to the prospective pre-emptor. As the phenomenon of talb-i-muwathebat carries essentially the element of limitation, mentioning of date and time of the disclosure of information is absolutely necessary. It is again necessary because talb has to be made before the dispersal of Majlis.
As the existence of a Majlis is a most material fact related to the performance of talb-i-muwathebat, the constituents of the Majlis are also necessarily to be mentioned. Such constitutents of Majlis are nothing but the members thereof who ultimately are the witnesses to the talb-i-muwathebat. Keeping in view the peculiar nature of talb-i-muwathebat where the description of Majlis is of utmost importance, the members of such Majlis who are obviously the witnesses to such talbs, are necessary to be mentioned in the plaint.
When concerned with the question of limitation as well as with the description of Majlis, the detailed particulars become necessary to be mentioned in the pleadings. Such exceptional cases are covered by Order 6, Rule 4 of the CPC as follows:
"4. Particulars to be given where necessary.--In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
(J.R.) Appeal allowed.
PLJ 2006 SC 169 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Muhammad Nawaz Abbasi, JJ.
SHEIKH MUHAMMAD SADIQ--Petitioner
versus
ELAHI BAKHSH and 2 others--Respondents
Civil Petition No. 1602 of 2005, decided on 23.5.2005.
(On appeal from the judgment dated 1.2.2005 passed by Lahore High Court, Multan Bench, in W.P. 8139/05)
(i) Constitution of Pakistan, 1973--
----Art. 199--Constitutional jurisdiction of High Court--Concurrent finding--Held: In normal circumstances High Court was not to dilate upon the controversial questions of facts and interfere in concurrent findings, but if such findings were based on misreading, non-reading of evidence or were not supported by any evidence, High Court without hesitation could interfere in the matter in Constitutional jurisdiction. [P. 171] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Constitution of Pakistan, 1973 Art. 199--Held : Respondent denied his appearance in Court--Petitioner failed to prove the fact that respondent was properly identified, through reliable evidence--Mere admission of respondent that his signature on the written statement were in his hand would not be sufficient to draw an adverse inference in view of his explanation that petitioner, a practicing lawyer, had been his counsel in another case for which he obtained his signature on a plain paper for use of the same in case of urgency--Respondent was identified in Court by a Counsel who was closely related to petitioner and was not personally known to him--Non-interference in the concurrent findings in writ petition would have amounted to protect the fraud & deprive the respondent from his valuable property by defeating cause of justice--Judgment of High Court was upheld. [Pp. 171 & 1872] B, C, E, F
(iii) Constitution of Pakistan, 1973--
----Art. 199--Constitutional jurisdiction--Scope--Held : A jurisdictional error committed in the judicial or quasi judicial proceeding by a Court to Tribunal could be corrected by High Court in its Constitutional jurisdiction. [P. 172] D
Sardar M. Rafiq, ASC Mr. Ejaz Muhammad Khan, AOR for Petitioner.
Nemo for Respondents.
Date of hearing : 23.5.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan has been directed against the judgment dated 1.2.2005 passed by a learned Judge in chambers of Lahore High Court, Multan Bench, in a constitution petition.
The facts in small compass giving rise to this petition, in the background are that Elahi Bakhsh, Respondent No. 1 in the present petition, owned 190 kanals in Chak No. 310/TDA and engaged the services of present petitioner who was a practicing lawyer at Layyah to represent him in a civil dispute with Thal Development Authority (TDA), in respect of the land in question. The petitioner on 5.1.1971, filed a suit for declaration in the civil Court at Layyah against the respondent wherein he on the basis of an agreement of purchase of above land from respondent for a consideration of Rs. 50,000/- sought a decree for specific performance. The summon for appearance of the respondent were issued for 11.3.1971 but as per record respondent while appearing before the Court on 27.2.1971, filed written statement wherein he conceded the claim of petitioner and in consequence thereto, a consent decree was passed on the same day in the suit. Subsequently, respondent, moved an application under Section 12(2) CPC for setting aside the decree on the ground that it was obtained by way of fraud and misrepresentation. The petitioner in reply to the application, denied the allegation and pleaded that decree was passed with consent of respondent and the application was hopelessly barred by time. The learned trial Judge in the light of pleading of parties, having adjudicated the application on merits, ultimately dismissed the same vide order dated 11.3.1972. The revision filed by the petitioner in the matter was also dismissed by the learned District Judge, Layyah, vide judgment dated 14.11.1995 whereupon, he filed a constitutional petition in the Lahore High Court, Multan Bench, and a learned Judge in chambers vide impugned judgment, allowed the writ petition, set aside the order of dismissal of application under Section 12(2) CPC as well as the consent decree dated 27.2.1971 passed in the suit and also rejected the plaint in the suit.
Learned counsel for the petitioner has contended that respondent in the proceedings under Section 12(2) CPC having admitted his signatures on the written statement could not deny his appearance in Court or that he had not engaged Sh. Muhammad Latif, advocate, who represented him as counsel in the suit and dadded that the claim of respondent was also falsified by the statement made by the learned Civil Judge, who passed the decree in the suit. Learned counsel forcefully argued that the Court of first instance as well as the revisional Court having considered the matter in detail, have concurrently held that the consent decree was free from any element of fraud or misrepresentation, therefore, the High Court was not justified to interfere in the concurrent finding of fact in its constitutional jurisdiction and set aside the decree. Learned counsel has also questioned the legality of the order of rejection of plaint under Order VII, Rule 11 CPC as in the writ petition only the order of dismissal of application under Section 12(2) CPC was challenged.
We have heard the learned counsel for the petitioner at length and also perused the record with his assistance. This is an admitted fact that the suit for declaration was filed on the basis of oral agreement and no documentary evidence in proof of existence of an agreement of sale was brought on record. The respondent has denied that he while appearing in Court in person sought permission for filing written statement on a date which was not actually fixed in the suit or that he was known to Sh. Muhammad Latif, advocate who appeared on his behalf in the Court. Learned counsel has not been able to bring to our notice any evidence on record to show that Noor Elahi, respondent, was personally known by Sh. Muhammad Latif, advocate, a close relative of the petitioner or by the Presiding Officer to suggest that his identification in the Court was free of any doubt. The learned Judge in the High Court having examined the evidence in detail, came to the conclusion that the decree was obtained through fraud and misrepresentation. We agree with the learned counsel that in the normal circumstances, the High Court in exercise of its constitutional jurisdiction is not supposed to dilate upon the controversial questions of facts and interfere in the concurrent findings on such question in the writ jurisdiction but it is settled law that if findings of fact are based on misreading or non-reading of evidence or are not supported by any evidence, the High Court without any hesitation can interfere in the matter in its constitutional jurisdiction.
We having considered the contention of learned counsel and gone through the impugned judgment have not been able to find out any defect in the exercise of constitutional jurisdiction by the High Court in the matter. The factual controversy regarding the genuineness of the transaction would give rise to a mixed question of law and facts but the question regarding the validity of decree would be purely a question of law. The respondent has categorically denied his appearance in the Court on the date of which decree was passed and thus in that the burden of proving the fact that the respondent was properly identified through reliable evidence in Court was on the petitioner but he failed to discharge his burden. The mere admission of respondent that his signatures on the written statement were in his hand, would not be sufficient to draw an adverse inference in view of his explanation that Sh. Muhammad Sadiq, petitioner herein, was a practicing lawyer at Layyah and being his counsel in another case, obtained his signatures on a plain paper for use of the same in case of urgency. The explanation appears to be plausible as it is usual practice of the advocates in the subordinate Courts that they keep blank paper with signature of their clients in their brief for emergent use, therefore, the mere fact that the signatures of respondent appeared on written statement filed in the Court would not be sufficient to prove his personal appearance without his proper identification in Court. The respondent was identified in Court by a counsel who was closely related to the petitioner and was not personally known to him, therefore, the doubt arising qua the identification of respondent and the genuineness of the transaction would reasonably suggest that the written statement was prepared on the paper bearing signatures of respondent without his consent and knowledge. The learned Civil Judge who passed the decree in the suit, has categorically stated in his statement before the learned Judge, seized of the application under Section 12(2) CPC that respondent was not personally known to him rather he was identified by Sh. Muhammad Latif, his counsel and further stated that suit was fixed for 11.3.1971 but on the request of parties, date was changed to 27.2.1971 and the decree in the suit was passed on the same day.
We having gone through the record, find that a gross error of misreading of evidence was committed by the Court of first instance as well as the revisional Court and this is settled proportion of law that a jurisdictional error committed in the judicial or quasi judicial proceedings by a Court or Tribunal, as the case may be, can be corrected by the High Court in its constitutional jurisdiction. The strict application of the general rule in the present case that concurrent finding of fact even if erroneous, cannot be interfered in the constitutional Jurisdiction, would amount to protect the fraud and deprive the respondent from his valuable property by defeating the cause of justice. The contention of the learned counsel that the application under Section 12(2) CPC was barred by time and no plausible explanation was offered by the respondent for not filing the same within the prescribed period has no substance. This is settled law that limitation for setting aside an order obtained through fraud or misrepresentation, would start from the date of knowledge and in the present case, the respondent has categorically stated that he filed application under Section 12(2) CPC immediately on coming to know about the decree in 1986, therefore, in absence of any evidence to the contrary, the presumption would be that respondent had no knowledge of decree, before 1986 and consequently, we would take no exception to the verdict given by the High Court on the question of limitation. The contention of learned counsel regarding rejection of plaint has also no force as the suit for declaration was filed taking the plea of part performance of the agreement of sale but there was no proof of existence of such an agreement therefore, despite there being no bar for conversion of a suit for declaration filed on the basis of an agreement into a suit for specific performance in an appropriate case, no such permission could be given in the facts of the present case.
This is correct that in the normal circumstances if a decree is set aside under Section 12(2) CPC, the case is remanded to the trial Court for decision of the suit on merits in accordance with law but in the facts and circumstances of the present case and the evidence brought on record by the parties in the proceedings under Section 12(2) CPC, no useful purpose would be served in remanding the case to the trial Court.
In the light of foregoing discussion we without taking any exception to the judgment of the High Court dismiss this petition and refuse the leave.
(J.R.) Leave refused.
PLJ 2006 SC 173 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Ch. and Hamid Ali Mirza, JJ.
KACHKOL KHAN--Petitioner
versus
HAYA KHAN and another--Respondents
Crl. P. No. 33-P of 2000, decided on 23.6.2005.
(On appeal from the order dated 29.3.2000 in Cr. Misc. No. 87/1999 passed by the Peshawar High Court, Peshawar).
Criminal Procedure Code, 1898--
----S. 561-A read with S. 7 Suppression of Terrorist Activities (Special Courts) Act, 1975--Maintainability of petition--Inherent jurisdiction of High Court--Held : Private complainant could not invoke the jurisdiction of H.C. u/S. 561(A) against order of acquittal passed by Special Judge S.T.A. (Special Courts) Act 1975 to avail substitute remedy like appeal which had not been provided by law--High court rightly dismissed petition being non maintainable--Leave refused. [P. 174] A & B
PLD 2002 Pesh. 6 ref.
Mr. Khalid Khan, ASC for Petitioner.
Mr. Hamid Farooq Durrani, A.G., NWFP for Respondents.
Date of hearing: 23.6.2005.
Judgment
Iftikhar Muhammad Chaudhry, J.--This petition arises out of judgment dated March 29, 2000 passed by Peshawar High Court whereby request of the petitioner for interference in the order of acquittal passed by Special Judge, under the Suppression of Terrorist Activities (Special Courts) Act 1975 dated March 9, 1999 exercising inherent powers under S. 561-A of Cr.P.C. has been dismissed.
"It is well settled that the inherent powers of the Court cannot be exercised for doing that which is not allowed by law in cases where the provisions of law are clear and where the Legislature has not granted the right of appeal to private complainant, recourse cannot be had to the inherent jurisdiction and the Court cannot, contrary to the mandate of Legislature by relying upon its inherent power, grant relied".
Learned Larger Bench of the Peshawar High Court had affirmed above view relying upon the judgments pronounced by this Court from time to time as well as the judgments by the Indian Courts and had categorically held that the private complainant cannot invoke the jurisdiction of the Court under Section 561-A of Cr.P.C. to avail alternate or substitute remedy for what has been denied by law. Thus, the judgment relied upon by the learned counsel is not helpful to him, therefore we are of the opinion that the Learned High Court has rightly declined to entertain the petition. Petition under Section 561-A of Cr.P.C. for the purpose of interfering in the acquittal order passed by Special Judge, under the Suppression of Terrorist Activities (Special Courts) Act 1975, was not maintainable.
Petition is accordingly dismissed. Leave declined.
(J.R.) Leave refused.
PLJ 2006 SC 174 [Appellate Jurisdiction]
Present: Javed Iqbal, Mian Shakirullah Jan and Tassaduq Hussain Jillani, JJ.
ABDUL GHAFFAR--Petitioner
versus
STATE and another--Respondents
Crl. P. No. 82-P of 2005, decided on 20.9.2005.
(On appeal from the judgment dated 20.6.2005 passed by the Peshawar High Court, Peshawar in Cr. A. No. 91 of 2005).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 231 r/w S. 537--Constitution of Pakistan, 1973, Art. 185--Re-examination of witnesses after amendment of charge--Accused was previously charged under S. 324/34 P.P.C. and then charged of S. 337-F(ii) was added--Earlier charge of effective firing was reflective of the fact of causing injury having greater sentence than the one provided for added offence under S. 337-F(ii), already covering the later offence--No request had been made by accused for re-examination of witnesses nor any such objection had been made before appellate Court--Held: If it was taken to be an irregularity by not recalling, re-summoning or re-examining the witnesses after alteration of charge then it was curable under S. 537 Cr.P.C. conviction and sentence on such ground could not be reversed--Leave was refused. [Pp. 175, 176 & 177] A, B, C & D
AIR 1930 All. 215; AIR 1940 Patna 355; 1968 P.Cr.L.J. 1901, ref.
Mr. Shakeel Ahmad, ASC for Petitioner.
Nemo for Respondents.
Date of hearing : 20.9.2005.
Judgment
Mian Shakirullah Jan, J.--The petitioner, after having been found guilty by the two Courts below i.e. the trial Court and the Appellate Court, was convicted under Section 324 PPC and sentenced to four years R.I. with a fine of Rs. 50,000/- and under Section 337-F(ii) PPC, the added section in the amended charge, and was sentenced to two years R.I. and was directed to pay Rs. 50,000/- as Daman, has filed the instant petition impugning his conviction and sentences.
The learned counsel for the petitioner did not challenge the judgment of the Courts below on merits, and very rightly so, in view of credible evidence and well-reasoned judgment of the High Court. However, he has argued by making the only submission that in view of the amendment of the charge by adding Section 337-F (ii) PPC, on the day of announcement of the judgment with no opportunity to the petitioner to recall or re-summon and examine the witnesses as required under Section 231 Cr.P.C., vitiate the trial.
The petitioner, alongwith the acquitted accused initially, at the commencement of the trial, was charged under Section 324/34 PPC for "attempted at the life of complainant Umar Gul (injured) by firing at him effectively and thereby committed an offence punishable under Section 324/34 PPC" and subsequently through the amended/altered charge, he was charged for "attempted at the life of complt: Umar Gul by firing at him effectively and you both thereby committed an offence punishable under Section 324/34" and further charged "caused injuries at the person of complainant Umar Gul by firing at him with your pistol (fire-arm) and you thereby committed an offence punishable U/S. 337/F(2) PPC."
Since the question of non-compliance of Section 231 Cr.P.C. has been raised, it would be appropriate to reproduce the said section for ready reference:
"231. Recall of witnesses when charge altered. Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, and also to call any further witness whom the Court may think to be material."
According to this section, whenever a charge is altered or added by the Court after commencement of the trial, the Prosecutor and the accused shall be allowed to recall or re-summon and examine with reference to such alterations or additions, any witness who may have been examined--The section couched in the words indicative of the fact that first a request or an application be made to that effect as `to allow' or grant of permission is generally preceded by a request or application. Since no such request or application has been made, therefore, it was not necessary for the Court to examine or recall or re-summon the witnesses. In this respect reference can be made to cases from Indian Jurisdiction "Konmal and another vs. Emperor (AIR 1930 Allahabad 215"), wherein, it was held:
"There is no duty laid on the Court under or re-summon prosecution or defence witnesses and so there is no breach of any provisions of Section 231 if the Court does not so enquire. It is essential that the accused should ask for permission."
and another case of "Musahru and others vs. Emperor (AIR 1940 Patna 355)", in which it was held:
"Had the accused after the amendment of the charges made a fresh application or renewed their application to the learned Judge to have defence witnesses summoned, such application could hardly be resisted, but in fact at the trial itself no such application was made and I think it must be taken that the wish on the part of the accused to have those witnesses summoned was abandoned."
In the case of "Muhammad Bakhsh vs. The State 1968 P.Cr.P.J. 1901", it was held that:
"It is true that under Section 231 Cr.P.C. the Court is bound to allow the prosecution and the accused to recall and examine any witness who may have been already examined but then the party has to make an application for the calling of any witness and their examination. Where the party does not do so, it cannot be subsequently complained that the examination contemplated by section was not allowed."
Furthermore the re-summoning and re-calling or examination would be with reference to such alterations or additions. If we read both the charges, there is no substantial alteration in the charges as the earlier charge was for attempt at the life of the complainant by firing at him effectively and in the later amended charge, the same allegations have been leveled i.e. the attempt at the life of the complainant by firing at him effectively with addition of causing injury to him. The earlier charge by mentioning the firing effectively is reflective of the fact of causing injury to the complainant and hence the fist charge, which is graver offence punishable with sentence more than the one provided for added offence under Section 337-F(ii) PPC also cover the later offence.
Moreover, if it is taken to be an irregularity by not recalling, re-summoning or examining the witnesses after the alteration of the charge of the nature as in the instant case, then it is curable under Section 537 Cr.P.C. and the conviction and sentence passed against the petitioner cannot be reversed and moreso when the objection was not raised at the trial and even, later on, during the hearing of appeal which negate the occasion of any failure of justice in view of the explanation to Section 537 Cr.P.C. which reads as under:--
"Explanation. In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
(J.R.) Petition dismissed.
PLJ 2006 SC 177 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar and saiyed Saeed Ashhad, JJ.
NOOR MUHAMMAD--Petitioner
versus
STATE and another--Respondents
Crl. P. No. 287 of 2004, decided on 26.9.2005.
(On appeal from the judgment/order dated 9.6.2004 passed by Peshawar High Court, in Criminal Appeal No. 150 of 2003).
(i) Criminal Trial--
----Interested witness--Held: Mere relationship or close association of prosecution witnesses with the deceased, in absence of hostility, animosity or any other motive to depose falsely would not be sufficient to hold them as interest witnesses and their testimony would not be discarded on such ground. [P. 181] A
(ii) Criminal Trial--
----Appreciation of evidence--Held: There could not be a presumption or rule that all the persons under attack from fire-arms ought to have received injuries and the fact that some of them had not received injuries would not make their presence at the place and time of incident, doubtful.
[P. 181] C
(iii) Criminal Trial--
----Report of Ballistic Expert--Evidentiary value--Held: No hard and fast rule could be laid down as regards an expert report--Opinion formed by Ballistic Expert by no means was sacrosanct and possibility of error in opining that the empties/bullets secured from the scene of incident were fired from 7 different fire arms could not be ruled out when case was otherwise proved by reliable truthful & confidence inspiring evidence, then such report lost its value. [P. 183] E
(iv) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Double murder--Conviction and sentence--Appreciation of evidence--Record showed that there was no previous enmity, hostility or grudge existed between complainant party and accused persons--No possibility of cross firing was made out--Contention that prosecution had acted with malafide intention and dishonestly had refused to record counter FIR, was not tenable as accused could have availed alternate remedies under Ss. 22-A, 22-B, 156(3) and S. 200 of Cr.P.C. to record his counter version--Held: No illegality in convicting accused for offence of double was found in order of Lower Courts--Leave refused.
[Pp. 181, 182 & 183 & 184] B, D, F & G
2001 SCMR 614; 2001 SCMR 162; PLD 2001 SC 222 and PLD 1993 SC 895, ref.
Malik Rub Nawaz Noon, Sr. ASC & Mr. M.A. Zaidi, AOR for Petitioner.
Nemo for Respondents.
Date of hearing : 26.9.2005.
Order
Saiyed Saeed Ashhad, J.--This petition seeks leave to appeal against the judgment of Peshawar High Court, Peshawar dated 9.6.2004 in Criminal Appeal No. 150 of 2003 whereby the appeal of the petitioner was dismissed maintaining the conviction and sentence awarded to the petitioner by the trial Court. The trial Court has convicted the petitioner vide order dated 15.3.2003 under Section 302 PPC on two counts for committing the murder of Sultan Muhammad and his son Saleh Muhammad to imprisonment for life and under Section 13 of the Arms Ordinance to imprisonment for seven years.
"3. The complainant had alleged that he alongwith his father, was a Government Grain Contractor, brother, Saleh Muhammad, and driver Pervez went to the office of the Food Director situated at Khyber Colony Tehkal to participate in the tenders for the supply of grains. That while leaving the office after finishing their work Israr Bacha, son of Said Naqibullah, resident of Mardan, Safir Jan son of Ghulam Jan, resident of Regi Malakand Dher and Noor Muhammad son of Painda Muhammad, an Afghan refugee, reported to firing at them, as a result of which the complainant's father Sultan Muhammad and the brother Saleh Muhammad sustained serious injuries whereas the complainant and the driver Pervez escaped unhurt. It is further mentioned in the FIR that the firing attracted DSP Circle, Amanullah Khan to the spot. That he arrested Noor Muhammad alongwith 8 MM rifle and a charger and took into custody a Land Cruiser bearing Registration No. 5-SWU. That both these injured succumbed to their injuries on the way to the hospital. The motive for the incident was some controversy between the parties pertaining to the tenders for the food grain."
After lodging of above FIR investigation of the case was undertaken by Inspector Ikhtiar Gul, SHO of University Town Police Station. After completion of investigation he submitted challan against petitioner Noor Muhammad and absconders Israr Bacha son of Said Naqibullah and Safeer Jan son of Ghulam Jan. Petitioner Noor Muhammad was charged for committing murder of deceased Sultan Muhammad and Saleh Muhammad son of Sultan Muhammad to which he pleaded not guilty. The prosecution to prove its case examined 14 witnesses. The complainant/PW-2 Niaz Muhammad and PW-3 Pervez Khan are the eye witnesses of the occurrence. The remaining evidence consists of recovery of blood stained earth; crime empties and bullets; recovery of 8MM rifle No. 953124 from petitioner Noor Muhammad report of Ballistic Expert with 7 empties fired from 8 MM rifle secured from petitioner Noor Muhammad; arrest of petitioner from the place of incident; a Land Cruiser which was parked at the scene of incident; copy of licence of kalshnikove in favour of absconder Muhammad Israr; two copies of licences, one of kalasknikov and other of 9 mm also in the name of absconder Muhammad Israr Bacha were recovered which were also taken into possession. Petitioner examined two witnesses in defence namely Iqbal Khan and Afridi Khan. On the basis of above evidence the trial Court came to the conclusion that the prosecution succeeded in proving its case beyond any shadow of doubt, thus convicting and sentencing the petitioner as stated above.
Feeling aggrieved and dis-satisfied with the above judgment of the trial the petitioner assailed the same by way of appeal before the Peshawar High Court who vide its judgment dated 9.6.2004 dismissed the appeal maintaining the judgment of the trial Court; hence this petition for leave to appeal.
We have heard the arguments of Malik Rub Nawaz Noon, Senior ASC appeared on behalf of the petitioner. None appeared on behalf of the respondents though caveat was filed.
Malik Rub Nawaz Noon, vehemently assailed the judgment of the learned Sessions Judge, Peshawar as well as of the Peshawar High Court on the following grounds:
(i) that from the evidence produced before the trial Court it was evident that it was a case of free fight between two parties resulting in indiscriminate firing from both the sides/cross firing in which besides deceased Sultan Muhammad and Saleh Muhammad having lost their lives one Afridi Khan also received injuries and in view of the above it was incumbent for the trial Court to determine as to who was the aggressor party and who was the aggrieved party;
(ii) that according to the Ballistic Expert's report empties/bullets recovered from the scene of occurrence were fired from seven different weapons which contradicts the prosecution case, according to which the petitioner and two absconding accused had opened fire at the complainant party and at the most empties/bullets fired from three fire-arm weapons ought to have been secured from the place of incident;
(iii) that the presence of eye-witnesses namely complainant/PW-2 Niaz Muhammad and PW-3 Pervez Khan is highly doubtful in view of the prosecution case that indiscriminate firing was made by the petitioner and two absconding accused but these two witnesses did not receive any injury;
(iv) that complainant/PW-2 Niaz Muhammad is son of deceased Sultan Muhammad and brother of deceased Saleh Muhammad whereas PW-3 Pervez Khan was the driver of deceased Sultan Muhammad, as such they are interested witnesses whose evidence could not have been relied upon without strong corroboration which is lacking in this case; and
(v) that the prosecution had acted with mala fide intention and dishonestly as it refused to register an FIR of the counter version of the incident wherein the complainant party had opened fire at the petitioner/absconding accused, Israr Bacha and Safir Jan in which Afridi Khan received injuries.
We have given due consideration to the arguments of Malik Rub Nawaz Noon and perused the material on record including the judgments of Sessions Judge, Peshawar and Peshawar High Court.
With regard to the contention that both the eye-witnesses i.e. complainant/PW-2 Niaz Muhammad and PW-3 Pervez Khan are interested witnesses. It is to be observed that it is a well settled principle that mere relationship or close association of prosecution witnesses with the deceased in the absence of established hostility, animosity or any other motive to depose falsely would not be sufficient to hold them to be interested witnesses and their testimony would not be discarded on this ground. From the material on record it has been established that no previous enmity, hostility or grudge existed between the complainant party and the accused persons. It will not be out of place to refer to the case of Munawar Ali vs. The State (2001 SCMR page 614) Complainant/PW-2 Niaz Muhammad being the son of deceased Sultan Muhammad and brother of deceased Saleh Muhammad would not allow the real murderer to go escort free and to falsely implicate some body else in place of the original culprit. Even otherwise substitution is a rare phenomenon as held by this Court in the case of Muhammad Iqbal vs. The State (PLD 2001 SC 222). This contention, therefore, is devoid of force and is repelled.
Relative to the contention that presence of two eye-witnesses namely Niaz Muhammad and Pervez Khan is highly doubtful as inspite of indiscriminate firing by the petitioner and two absconding accused they did not receive any injury is without any substance. It is not the first case of its kind wherein some of the persons who were under attack by the opposite party did not receive any fire-arm injury whereas others received one or more than one fire arm injuries. There cannot be presumption or rule that all the persons who were under attack from fire-arms ought to have received injuries and the mere fact that some of them did not receive injuries would not make their presence at the place and time of incident doubtful. This contention is also devoid of force and is repelled. In support of the above proposition judgment in the case of Mehboob Sultan and two others vs. The State (2001 SCMR 163) is referred.
Taking up the contention relative to the free fight or indiscriminate firing from both the sides/cross firing as was suggested by Malik Rub Nawaz Noon, it is to be observed that this issue was raised before the Peshawar High Court and the learned Division Bench of the High Court thoroughly considered and examined the same and had given very cogent and plausible reasons for discarding the same. It would be appropriate to reproduce the relevant passages from the judgment of the Peshawar High Court dealing with this issue:--
"18. The learned defence counsel had tried to make out a case of cross firing. For this proposition he relied upon the site plan and the opinion of the fire-arm expert as well as the tesitmony of D.W.2 Afridi Khan. In the site plan the deceased are shown at Points No. 1 and 2, which are to the South of Points 5 and 6 where the two absconding accused had allegedly fired. Point 7 where the appellant was present is further down South of Point Nos. 1 and 2. The two witnesses are at Points Nos. 3 and 4, to the East of Points Nos. 1 and 2 in front of the entrance to the office of the Food Directorate. Bullet marks had been noticed at points A, D, E and F, Point A is the gate of the Bungalow of Abdur Rahsid Khan and is to the North West of Point 7 and South West of Points 5 and 6. The Learned counsel for the defence submitted that these bullet marks at point A could have been caused only if there had been cross firing. We find ourselves unable to agree with this argument. Point A falls in between Point 5 and 6 on the one hand and Point 7 on the other and so also the deceased were in between these points. There is every likelihood that the fire shots from points 5, 6 on the one hand and Point 7 on the other and so also the deceased were in between these points. There is every likelihood that the fire shots from points 5, 6 and 7 could have hit the gate of the Bunglaow of Abdur Rashid Khan, particularly when it falls within the firing range from Point 7 to Point 2. Similarly, point D, E and F, J, K which are in close proximity to one another, fall within the firing range from Point No. 6 to 1, 3 and 4. The site-plan, therefore, does not indicate cross firing."
"19. According to the fire arms expert's opinion the .62 MM bore crime empties had been fired from 5 different weapons. On the face of it this may indicate the use of 5 weapons. However, it would not be per se sufficient to establish that there was a cross firing between the complainant and the accused. The defence through out the cross-examination had tired to built up a case that there had been cross firing between the complainant party and one Akbar Ali and his companions. Interestingly, the defence did not disclose either through cross-examination of the eye witnesses or by other means as to who this Akbar Ali was and as to what was the reason for the cross firing between the said Akbar Ali and the complainant party. As for the record is concerned Akbar Ali appears to be an imaginary person. The defence had neither although cross examination or in the statement of the accused under Section 342 even made an attempt to give any indication that the accused and the complainant party were locked in cross firing. Without there being some evidence to that effect mere report of the fire-arm expert that 5 weapons had been used would not be enough to show that there probably was cross firing between the two parties."
From bare perusal of above passages from the impugned judgment it can safely be concluded the learned Division Bench had fully examined and discussed the issue of cross firing and had rightly come to the conclusion that from the facts and circumstances of the case the possibility thereof was ruled out.
With regard to the ground that the prosecution has concealed and suppressed very material facts and the fact that empties/bullets recovered from the place of incident were fired from seven different fire-arms would suggest that the complainant party was also armed with fire-arms which would support the contention of cross firing. This ground is devoid of force as it is merely based on conjectures and surmises that complainant party was also armed with fire-arms and had opened fire at the petitioner and others, resulting in injury to Afridi Khan. As regards the injury to Afridi Khan since his presence at the spot is admitted from the evidence on record, it might have been caused by a stray bullet fired from the fire-arm weapons used by the petitioner and the absconding accused. It may also be mentioned that the opinion formed by the Ballistic Expert, by no means is sacrosanct and the possibility of error in opining that the empties/bullets secured from the scene of incident were fired from seven different fire-arms cannot be ruled out. No hard and fast rule can be laid down as regards the weight to be given to an experts report. In a case which otherwise stands proved against the accused by reliable, truthful and confidence inspiring evidence then the report of the expert loses its value. This Court while faced with the similar situation in the case of Muhammad Hanif vs. The State (PLD 1993 Supreme Court 895) pronounced that in presence of direct evidence, expert's evidence, might it be medical or that of ballistic expert was entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence. It was further observed that direct evidence, which was definite and trustworthy, the confirmatory evidence was not of much significance and cannot in any case, outweigh the direct evidence.
The report of the fire-arm expert has expressed two opinions, firstly that in this case seven empties of 8MM rifle secured from the place of incident were found to have been fired from the 8MM rifle recovered from the petitioner. This opinion being in accord with the prosecution evidence, that petitioner had fired from 8MM rifle would be acceptable as confirmatory or corroborative evidence. However, the opinion to the effect that seven different fire-arms were used on account of the empties/bullets recovered from the place of incident not being consistent with the prosecution evidence which has been found to be reliable, truthful and credible would not outweight the reliable and credible prosecution evidence.
With regard to the contention that the prosecution had acted with mala fide intention and dishonestly in refusing to record counter FIR, which was sought to be lodged by the petitioner, it is suffice to say that, admitting for the sake of arguments that the prosecution has refused to record the FIR, then three remedies were open to him. He could have approached the Session Judge under Sections 22-A and 22-B Cr.P.C; he could have approached a Magistrate under Section 156(3) Cr.P.C. He could have filed a direct complaint under Section 200 Cr.P.C. It was submitted by Malik Rub Nawaz Noon that the petitioner was arrested from the spot immediately after the occurrence, initially remained in police custody and thereafter was remanded to judicial custody which deprived him from having recourse to the aforesaid remedies. The explanation advanced by Malik Rub Nawaz Noon is not at all impressive. Petitioner even when in judicial custody could have availed of any one of the above remedies. It is a matter of record that he had authorized an Advocate to conduct his above case in Court and he could have instructed his said Advocate to have recourse to anyone of the above three remedies.
Malik Rub Nawaz Noon had also vehemently contended that both the Courts did not take into consideration the defence evidence of DW-1 Iqbal Khan and DW-2 Afridi Khan. This contention is not supported from the material on record. We have gone through the evidence of two defence witnesses. DW-1 Iqbal Khan in his evidence did not make any statement, which could raise suspicion or doubt on the veracity of prosecution evidence. On the contrary he had deposed that both deceased Sultan Muhammad and Saleh Muhammad were fired at. From the cross-examination of this witness it transpired that he was working as driver of deceased Sultan Muhammad for 10/11 years but on account of misappropriation of Rs. 10,000/- he was removed from service. A suggestion was made to him that he deposed falsely at the instance of Israr Bacha, who had bribed him, which of course was denied by him. He also admitted in cross-examination that he was removed by the complainant from service prior to the occurrence. In view of the admission his statement that he had driven the Pejaro in which deceased Sultan Muhammad and Saleh Muhammad had gone to the office of Director Food is absolutely false statement. No reliance can be placed on the evidence of such a witness. With regard to evidence of Afridi Khan the learned Division Bench of Peshawar High Court, discarded the same as he was found to be a liar witness as contradictory statements were made by him in his 161 Cr.P.C. statement before the police, as he was one of the prosecution witness and in the evidence before the trial Court, therefore, his evidence was rightly discarded from consideration in determining the guilt or otherwise of the petitioner.
For the foregoing reasons and discussion it is absolutely clear that both the trial Court and the Peshawar High Court did not commit any illegality in convicting the petitioner for the offence of murder of two deceased persons and their judgments do not suffer from misreading or non-reading or misconstruing the prosecution evidence. Both the Courts had apprised the evidence in accordance with the principle of appraisal of evidence in criminal cases. This petition for leave to appeal does not merit consideration. Accordingly it is dismissed and leave to appeal is refused.
(J.R.) Leave refused.
PLJ 2006 SC 185
[Appellate Jurisdiction]
Present : Nazim Hussain Siddiqui, C.J. and Abdul Hameed Dogar, J.
AZAMATULLAH (deceased) through LEGAL REPRESENTATIVES--Petitioner
versus
Mst. HAMEEDA BIBI & others--Respondents
Civil Petition No. 275 of 2003, decided on 25.3.2005.
(On appeal from the judgment dated 29.11.2002 of the Lahore High Court, Lahore passed in C.R. No. 547 of 1999).
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13(3)--Constitution of Pakistan 1973, Art. 185(3)--Decree in suit for pre-emption granted by High Court, assailed--Plaintiff had filed suit after about three months of sale as the same was kept secret from him and admittedly on knowledge of sale, he immediately disclosed his intention of file suit for pre-emption in village Majlis and on next sent notice of talb-i-ishhad attested by two truthful witnesses was sent--Right of pre-emption on basis of contiguity, common boundry line, common rights of passage and common right of irrigation was established on record--Talbs were found to have been correctly made by trial Court and High Court--No illegality misreading of evidence on non-reading of evidence was pointed out--Impugned judgment being based on valid and sound reasons does, not call for interference--Leave to appeal was thus, refused.
[P. 188] A & B
2005 SCMR 431; 1999 SCMR 958; 2000 SCMR 329; 1997 SCMR 315; 2004 SCMR 1580 and 1999 SCMR 717 ref.
Mr. Arshad Ali Ch., ASC for Petitioner.
Mr. Zaheer Ahmad Qadri, ASC for Respondents.
Date of hearing : 25.3.2005.
Judgment
Abdul Hameed Dogar, J.--Petitioners seek leave to appeal against the judgment dated 29.11.2002 of a learned Single Judge of the Lahore High Court, Lahore, whereby Civil Revision No. 547 of 1999 filed by respondents was accepted and the judgment and decree of the First Appellate Court was set aside and that of trial Court was restored and suit for possession through pre-emption filed by Abdul Majeed, predecessor-in-interest of respondents was decreed.
Briefly, stated, facts giving rise to the filing of instant petition are that the suit land measuring 10 marlas situated in the area of Chak No. 129/SB, Tehsil Silanwali District Sargodha was sold by Ghulam Rasool to Azmatullah, predecessor-in-interest of petitioners vide Mutation No. 655 dated 23.6.1994 against a consideration of Rs. 100,000/-. Deceased Abdul Majeed, predecessor-in-interest of respondents announced his intention to purchase the suit land in the Majlis of the village claiming his superior right of pre-emption on the ground that the suit property was adjacent to his land and Dera. He also claimed that the sale price was actually Rs. 20,000/- which was in fact the market value in the area at the relevant time. Thereafter said Abdul Majeed sent notice of Talb-i-Ishhad to Azmatullah on 5.9.1994 attested by two witnesses stating the entire facts therein., He, however, filed suit for possession through pre-emption which was contested by Azmattulah who filed written statement wherein he raised preliminary objections that no notice of Talb-i-Ishhad as required under Section 13(3) of the Punjab Pre-emption Act, 1991 (hereinafter referred to as `the Act') was served on him and that he had also purchased the land for consideration of Rs. 1,00,000/- for running his business and also incurred a sum of Rs. 6000/- on its improvement. The trial Court framed as many as (11) issues and after recording the evidence deceased the suit on 15.7.1997.
Feeling aggrieved, petitioners preferred appeal which was allowed by the learned Additional District Judge, Sargodha, on 17.2.1999. The said judgment was assailed by respondents before the learned High Court in the above mentioned civil revision which was allowed vide impugned judgment.
We have heard M/s. Arshad Ali Ch. Learned ASC for the petitioners and Zaheer Ahmed Qadri, learned ASC for the respondents at length and have gone through the record and proceedings of the case in minute particulars.
Learned counsel for the petitioners vehemently contended that learned High Court has not appreciated the evidence brought on record in its true perspective which resulted in miscarriage of justice. According to him, the pre-requisite conditions of Talb-i-Ishhad and Talb-i-Muwathibat as prescribed by law were not fulfilled in this case. Neither any date on which plaintiff deceased Abdul Majeed came to know about the sale was disclosed by him in the plaint nor the date on which he desired to pre-empt the land after coming to know for the first time was disclosed. Even the names of two truthful witnesses in whose presence he made declaration to pre-empt have been mentioned. He vehemently urged that the requirement of Talib-i-Muwathibat cannot be fulfilled unless the details, particulars, date, time and place are specifically indicated in the plaint and the names of persons in whose presence such Talab was made. He went on to argue that witnesses, namely, Muhammad Afzal (PW-1), Muhammad Sharif (PW-2) and Muhammad Shafi, (PW-3) even did not disclose in their respective statements in evidence the time and the date of sale, therefore, the period for making Talib-i-Ishhad cannot be said to have been made within two weeks from the date of knowledge of sale. Even notice of Talib-i-Ishhad did not bear the time and date of reconfirmation of Talib-i-Muwathibat while making Talib-i-Ishhad. Lastly, the learned counsel contended that the judgment of First Appellate Court is well-reasoned and is based on proper appraisal of evidence and in accordance with law, a such, the same may be maintained. He vehemently stressed upon the case of Akbar Ali Khan and others v. Mukamil Shah and others (2005 SCMR 431) wherein according to him, this Court laid down principle that the date and time of making Talib-i-Muwathibat is necessary to be mentioned in the plaint as it puts a limitation on the prospective pre-emptor that he must express his intention to pre-empt immediately and in case of involvement of limitation of any kind, the plaintiff has to specify the date and time of the commencement of limitation or his knowledge, so that the limitation is computed accordingly and secondly for the reason that from the time of making of Talib-i-Muwathibat, the statutory period of 15 days of performance of Talib-i-Ishhad has to be computed.
On the other hand, according to the learned counsel for the respondents the impugned judgment does not suffer from any legal flaw and contended that all the three PWs examined are unanimous about the date, time and place of gaining of knowledge by the respondents regarding sale and have unambiguously deposed that the respondents instantly expressed their intention of pre-empting the sale. He further contended that the respondents have proved notice of Talib-i-Ishhad by producing its marginal witnesses, namely, (PW-1) Muhammad Afzal, (PW-2) Muhammad Sharif and (PW-3) Muhammad Shafi who without any contradiction supported the case of respondents on making of Talabs. He further contended that even service of notice on petitioners is established through the testimony of independent witness, namely, Khizar Hayat, Postman who also produced postal receipt Ex. P-3. He strenuously argued that whosoever comes forward to testify shall be presumed to be truthful unless otherwise proved as it has been held by this Court in the case of Muhammad Ilyas v. Ghulam Muhammad and another (1999 SCMR 958). According to him, the manner of making Talib-i-Muwathibat and sending the notice of Talib-i-Ishhad have been elaborately discussed by a larger Bench of this Court in the case of Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCMR 329) and the case of respondents is at par with that case as such it being a decision of larger Bench is binding on the decision of smaller Bench of this Court. On that aspect also learned counsel referred to the case of Chaudhry Muhammad Saleem v. Fazal Ahmad and 2 others (1997 SCMR 315).
Admittedly, Abdul Majeed, predecessor-in-interest of respondents in the plaint claimed the right of pre-emption on the basis of being Shafi Jar and Shafi Khalit. According to the plaint on coming to know about the sale he immediately disclosed his intention to pre-empt the suit land in the majlis of village in presence of PW-2 Muhammad Sharif and PW-3 Muhammad Shafi. According to the averments, the sale was kept secret and was disclosed to the plaintiff after about three months i.e. on 4.9.1994 which fact is established and not rebutted. The factum of sending of notice of Talib-i-Ishhad on the next day i.e. 5.5.1994 after getting it attested by two truthful witnesses, namely, Muhammad Sharif and Muhammad Shafi also stood established on the record. Irrespective of above, a glance over the judgment of the trial Court reveals that defendant Azamatullah Qureshi, predecessor-in-interest of petitioners had not filed written statement, as such, though his defence could have been struck off but the trial Court decided the case on merits. As regards the right of pre-emption, it has been categorically stated by PWs, namely, PW-1 Muhammad Afzal, PW-2-Muhammad Sharif and PW-3 Muhammad Shafi that Abdul Majeed predecessor-in-interest of respondents had the superior right on the basis of contiguity, common boundary line, common right of passage and common right of irrigation. Above all, there is no exception to the concurrent findings of trial Court and that of learned High Court on both Talabs, which according to them, were made well in accordance with law. Learned counsel for petitioners though argued at length yet could not refer to any illegality, misreading or non-appraisal of evidence. It is well-settled principle enunciated by this Court that the judgment of large Bench is binding on the judgment of smaller Bench. Examining the case of respondents on the touchstone of the case of Haji Noor Muhammad (supra), it is found to be exactly the same on all four corners. Thus it being the decision of larger Bench is binding on the smaller Bench. In this context, we are fortified by the case of Chaudhry Muhammad Saleem v. Fazal Ahmad and others (1997 SCMR 315) wherein it has been held that the judgment rendered by the Full Bench of this Court comprising five Judges would be binding upon the Bench comprising of three Judges. In the case of Haji Noor Muhammad (supra) it has also been held that the plaintiff could not be non-suited merely on the ground that other details of time and place of the Talabs and names of witnesses etc. had not been specifically mentioned in the plaint. In the case of Allah Bakhsh and anther v. Falak Sher (2004 SCMR 1580) this Court has held that minor discrepancy of time would not come in the way of pre-emptor. This Court also held in the case of Abdul Malik v. Muhammad Latif (1999 SCMR 717) that the service of registered notice by pre-emptor containing the names of the two truthful witnesses before whom Talb-i-Ishhad was allegedly made amounted to substantial compliance of the provisions of Section 13(3) of the Act and pre-emptor could not be non-suited on the ground that the notice served on the vendee containing Talb-i-Ishhad was not attested by the two truthful witnesses whose names were disclosed in the notice.
For what has been discussed above, we are of the considered opinion that impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither there is misreading nor non-reading of material evidence brought on record of misconstruction of facts or law.
Resultantly, the petition being devoid of force is dismissed and leave to appeal refused.
(A.A.) Leave refused.
PLJ 2006 SC 189
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ.
PAKISTAN TELECOMMUNICATION COMPANY LIMITED through its CHAIRMAN and three others--Petitioners
versus
M/s. MUHAMMAD SAEED WAZIR, FORMER GENERAL MANAGER, (T&R) PTCL and another--Respondents
C.P. No. 1136 of 2003, decided on 6.5.2005.
(On appeal from the judgment dated 9.4.2003 passed by Federal Service Tribunal, Islamabad in Appeal No. 87-P (CS)/2001).
Removal from Service (Special Powers) Ordinance 2000--
----S. 3--Constitution of Pakistan 1973, Art. 212(3)--Leave to appeal--Dismissal from Service--Appeal accepted--Order of dismissal from service was set aside--Respondent entered into plea bargain--Penalty of dismissal from service was imposed--On day of dismissal from service, respondent could not have been removed under Government Servants (Efficiency & Discipline Rules), 1973 had already been promulgated and S. 12 of Ordinance excluded application of any other law--Insertain of sub-clause (c)(iv) in sub-section (1) of Section 3 of Ordinance makes an addition to grounds for action from (a) to (e) and does not authorize competent authority to pass any order without inquiry--Closing Paragraph of S. 3(1), of condition give u/sub-clause (a) to (e) are available, competent authority, after inquiry by inquiry officer or inquiry Committee appointed u/S. 5 can dismiss or remove civil servant from service or take any other action--Issuance of show-cause notice and holding of inquiry was necessary--Neither any show-cause notice was issued, nor any enquiry was held--Tribunal has rightly set aside impugned order of dismissal--Held: Dismissal without notice and without inquiry could not be ordered--Petitioner dismissed. [Pp. 190 & 191] A
Hafiz S.A. Rehman, ASC with Mr. M.A. Zaidi, AOR for Petitioners.
Respondent No. 1 present-in-person.
Date of hearing: 6.5.2005.
Judgment
Sardar Muhammad Raza, J.--Pakistan Telecommunication Company Limited through its Chairman and other functionaries seek leave to appeal under Article 212(3) of the Constitution, against the judgment dated 9.4.2003 of the learned Federal Service Tribunal, Islamabad whereby, on acceptance of the appeal of Muhammad Saeed Wazir former General Manager (T&R) PTCL, the order dated 20.10.2000 of his dismissal from service, was set aside leaving open for the department to pass any order in accordance with law.
Relevant facts are to the effect that the respondent remained under investigation by National Accountability Bureau where he entered into a plea bargain on 25.7.2000. On 7.9.2000, a letter was issued from Chief Executive Secretariat National Accountability Bureau, Islamabad to the Secretary, Establishment Division, Islamabad to take follow up action provided under Government Servants (Efficiency & Discipline) Rules, 1973 under intimation to the Bureau. Thereafter, the penalty of dismissal from service was imposed on the respondent through the impugned order dated 20.10.2000.
Learned Tribunal was of the view that on the day of dismissal from service i.e. 20.10.2000, the respondent could not have been removed under Government Servants (Efficiency & Discipline) Rules, 1973 because by then Removal from Service (Special Powers) Ordinance, 2000 had already been promulgated with effect from 20.5.2000/27.5.2000 and that Section 12 of the aforesaid Ordinance excluded the application of any other law.
Hafiz S.A. Rehman, learned counsel for the petitioners argued that under Section 3(1)(c)(iv) added by Ordinance V of 2001, the dismissal could be ordered because of respondent having entered into a plea bargain with NAB authorities.
We are afraid this argument would not hold the ground because the insertion of sub-clause (c)(iv) in sub-section (1) of Section 3 of the Ordinance merely makes an addition to the grounds for action from (a) to (e) and does not authorize the competent authority to pass any order without enquiry. The closing paragraph of Section 3 sub-section (1) clearly lays down that if conditions given under sub-clause (a) to (e) are available, the competent authority, after inquiry by the inquiry officer or the inquiry committee appointed under Section 5, may dismiss or remove the civil servant from service or take any other action alluded to in the aforementioned para.
We are convinced that the issuance of show-cause notice and the holding of inquiry, in the given circumstances was necessary under Section 3 of Removal from Service (Special Powers) Ordinance 2000. In the instant case, neither any show-cause notice was issued nor any inquiry was held and thus, Tribunal has rightly set aside the impugned order of dismissal. Regardless of whether the proceedings are taken under Government Servants (Efficiency & Discipline) Rules 1973 or under Removal from Service (Special Powers) Ordinance 2000, a dismissal without notice and without inquiry could not be ordered in the circumstances of the present case. There being no force in the petition, it is hereby dismissed and leave to appeal refused.
(A.S.) Petition dismissed.
PLJ 2006 SC 191
[Appellate Jurisdiction]
Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ.
M/s. NATIONAL ELECTRIC CO. etc.--Appellants
versus
KHALID SIDDIQUE etc.--Respondents
C.Miscel.A. No. 41 of 2001 in C.R.P. No. NIL/2000 in Civil Appeal No. 1230/1996, decided on 17.3.2005.
Supreme Court Rules, 1980--
----O. XXVI, R. 5--Application for review--Drawn by Advocate other than appeared in appeals--Maintainability--Except with special leave of the Court, no application for review would be entertained under it was drawn by advocate who appeared at hearing of case in which judgment or order sought to be reviewed was made--Held: No case for relaxing the provisions of Rule 6 of Order XXVI of the rules is made out--Appeal dismissal. [Pp. 192, 193 & 194] A, B & C
Mr. Maqbool Elahi Malik, Sr. ASC and Kh. Mushtaq Ahmad, AOR (absent) for Appellants.
Mr. S.M. Naseem, ASC. for Respondents.
Date of hearing : 17.3.2005.
Order
Nazim Hussain Siddiqui, C.J.--The facts giving rise to this miscellaneous appeal are as follows:-
Civil Petitions Nos. 1099-L/1995, 1332-L/1995 and 1124-L/1995 were heard together at the leave granting stage. Mr. Maqbool Elahi Malik, learned Senior ASC appeared as counsel for the appellants herein, viz. M/s. National Electric Co. (petitioners in C.P. 1099-L/1995 and Respondents Nos. 1 to 4 in C.P. No. 1124-L/1995), but in C.P. No. 1332-L/1995 said company, as the respondent was not shown to have been represented. All aforesaid matters were heard and disposed of by this Court on 7.6.2000. However, on the said date Mr. Maqbool Elahi Malik was not present on behalf of said company.
Vice judgment dated 7.6.2000, C.A. No. 1230/1996 was disposed of as having become infructuous. On the same date, Civil Appeal No. 1228/1996 filed by M/s. National Electric Co./judgment debtor, was dismissed for non-prosecution while Civil Appeal No. 1229/1996 filed by the Allied Bank of Pakistan was dismissed as withdrawn. While disposing of C.A. No. 1230/1996, Order of High Court relating to refund of the auction amount to Respondent No. 1 (auction purchaser) was maintained and so also the direction of the High Court that besides receipt of profit earned on account of investment of the auction amount in profit bearing scheme, the auction purchaser (Respondent No. 1) shall also be entitled to recover interest at the rate of 10% from the present appellants on the auction amount deposited by him.
The appellants filed civil review petition and it was returned as being not entertainable on account of non-compliance of the provisions of Rules 6 of Order XXVI of the Supreme Court Rules, 1980 (hereinafter called the Rules), hence the present miscellaneous appeal was filed. It appears that on 4.6.2003 the matter was placed before a learned Judge of this Court. Since no one appeared for the appellants, it was dismissed in default. Thereafter on 30.9.2004 the miscellaneous appeal was restored.
On 13.10.2004 a learned Judge of this Court heard the matter and ordered that the miscellaneous appeal be fixed in Court, hence it is before us.
The only point involved is the interpretation of Rule 6 of Order XXVI of the Rules, which reads as under:--
"6. Except with the special leave of the Court, no application for review shall be entrained unless it is drawn by the Advocate who appeared at the hearing of the case in which the judgment or order sought to be reviewed, was made. Nor shall any other Advocate, except such Advocate, be heard in support of the application for review, unless the Court has dispensed with the requirement aforesaid."
Perusal of Order XXVI reveals that hearing of review petition is not automatic. It is subject to various conditions. Under the above quoted rule, except with special leave of the Court, no application for review shall be entertained unless it is drawn by the Advocate who appeared at the hearing of the case in which the judgment or order sought to be reviewed was made. It is an admitted fact that when the order dated 7.6.2000 was passed in Civil Appeal No. 1230/1996, Mr. Malik was not present for said company.
Learned counsel for the appellants strenuously argued that at the leave granting stage, he had appeared, but could not appear on the date when the appeal was disposed of for the reason that during pendency of above appeal a new development took place and the State Bank of Pakistan issued a policy in which incentive was given to the debtors to clear the loan amounts by paying in lump sum an amount of Rs. 382,000/- in lieu of the entire amount of loan and the judgment debtor availed said incentive and paid the amount. According to him, the matter was already settled by the concerned party. Learned counsel, in support of his contention, cited Muhammad Younas v. State (PLD 2005 SC 93).
In the above cited case, this Court held as under:--
"6. We have heard the learned counsel for both the parties at length. It is to be noted that Mr. Munir Ahmed Bhatti, Advocate Supreme Court had not moved an application seeking his exemption from addressing the Court in the Review Petition in terms of Order XXVI, Rule 6 of the Rules. The application on which order dated 4th April, 2002 was passed is filed under the residuary provisions, i.e. Order XXXIII, Rule 1 read with Rule 6 of the Rules. It is an uncontroversial state of law that in presence of specific provisions of law the residuary provision generally meant to exercise inherent jurisdiction like Section 151, C.P.C. is not invoked, therefore, the application submitted in this behalf by the learned counsel was not competent."
Thus, in the above cited case it has been reiterated that Rule 6 of the Rules insists upon the presence of the counsel who had originally argued the case. The record reveals that in C.A. No. 1230/1996, both learned counsel for petitioners/appellants Khalid Siddique and Respondent No. 6 appeared while Mr. Malik did not appear.
On the other hand, Mr. S.M. Nasim, learned ASC, appearing on behalf of the respondent cited Rashid v. State (1983 SCMR 295), Feroze Din v. Sardar Muhammad (2002 SCMR 1993), Mukhtar Ahmad v. State (PLD 2003 SC 126) and Muhammad Younas v. State (PLD 2005 SC 93). The ratio of above cases is that an Advocate, who did not appear at the hearing of the appeal, could not appear in the review petition as of right. In Ghulam Mustafa v. State (PLD 2004 SC 475), similar view was taken. In the circumstances, no case for relaxing the provisions of Rule 6 of Order XXVI of the Rules is made out.
On merits also, the appellants have no case. High Court rightly compensated the auction purchaser by issuing direction to pay him interest on the amount of Rs. 4,760,000/- which he had deposited, at the rate of 10% from the date of deposit up to the date of judgment by the judgment debtor. Above finding has not been disturbed by this Court in Civil Appeal No. 1230/1996.
We are of the view that both on law and facts, the appellants have no case. Accordingly, this civil miscellaneous appeal is dismissed.
(A.S.) Appeal dismissed.
PLJ 2006 SC 194
[Appellate Jurisdiction]
Present : Nazim Hussain Siddiqui, C.J. and Abdul Hameed Dogar, J.
SHAHZAD AMJAD--Petitioner
versus
STATE--Respondent
Crl. P. No. 230 of 2003, decided on 22.3.2005.
(On appeal from the judgment dated 12.5.2003 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeal No. 488 of 2002).
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Criminal Procedure Code (V of 1898), Ss. 340(2) & 342--Constitution of Pakistan, 1973, Art. 185--Leave to appeal--Conviction and sentence--Challenge to--Petitioner was found in possession of bag containing narcotics--Recovered of 1780 grams of heroin at Airport--Petitioner and co-convicted were taken into custody--Statments recorded and examined on death--Petitioner voluntarily took bag from co-convict at airport onward transmission to Frankfurt--Bag was opened in his presence and heroin was recovered from inside of bag--Two samples were taken which were opined to be heroin as per report of chemical examiner--Petitioner was having German Passport and Ticket for Frankfurt at the time further corroborates case of prosecution--Validity--Held: Beyond any shadow of doubt that petitioner while attempting to smuggle narcotics out of Pakistan--Petition dismissed. [Pp. 195 & 196] A & B
Ch. Arshad Ali, ASC and Mehr Khan Malik, AOR for Petitioner.
Respondent not represented.
Dates of hearing : 22.3.2005.
Judgment
Abdul Hameed Dogar, J.--Petitioner seeks leave to appeal against the judgment dated 12.5.2003 passed by a learned Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Criminal Appeal No. 488 of 2002 filed by him was dismissed.
Briefly, stated, the facts leading to the filing of the instant petition are that on 29.10.2001 at about 8.30 a.m. petitioner Shahazad Amjad possessing German Passport No. 2031653927 and Ticket No. 176-3539497-811 with a black colour hand bag was apprehended by complainant Aftab Ahmed Butt, Inspector Customs, at Islamabad Airport. On the search of said bag, 1780 grams of heroin was found concealed in the inner layer of the bag which was taken into possession. Two samples of five grams each were separated and sealed for chemical analysis whereas rest quantity was sealed in separate parcel. Petitioner and his co-convict Muhammad Anwas were taken into custody and were sent alongwith the written complaint to Police Station Airport, Rawalpindi, for registration of case, where FIR No. 508 was lodged under Section 9(C) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as "The Act"). On completion of investigation, both of them were sent up to face trial.
At trial, prosecution examined five witnesses in all and produced the report of Chemical Examiner in evidence as Ex. PE. Petitioner in his statement recorded under Section 342 Cr.P.C. admittedly the guilt while claiming that in fact the bag was handed over to him by co-convict Muhammad Anwas at the Airport for onward transmission to Nadeem Ashraf Butt alias Pasha living in Frankfurt, Germany. He examined himself on oath under Section 340(2) Cr.P.C. wherein also he raised the same plea. However, he did not examine anyone in defence.
On conclusion of trial, petitioner and co-convict Muhammad Anwas were found guilty of the offence and were convicted under Section 9(c) of the Act and was sentenced to suffer R.I. for ten years with fine of Rs. 1,00,000/- or in default to suffer S.I. for two years.
Feeling aggrieved, petitioner preferred above mentioned appeal before High Court which was dismissed and conviction and sentence was maintained vide impugned judgment.
We have heard Ch. Arshad Ali, learned ASC for petitioner and have gone through the record and the proceedings of the case in minute particulars.
Learned counsel for petitioner mainly contended that petitioner had no knowledge that the bag in question, which was handed over to him by his co-convict Muhammad Anwas, in fact contained any narcotics substance. It was locked and its lock was broken by Customs Authorities at the Airport which prima faice shows the ignorance of petitioner.
Admittedly, petitioner was found in possession of bag containing narcotics which was opened in his presence and 1780 grams of heroin was recovered from its inner layer. Since petitioner has admitted the guilt in his statements recorded under Sections 342 and 340(2) Cr.P.C., as such it would not be necessary to discuss the prosecution evidence which even otherwise fully establishes the case against him. The plea that petitioner had no knowledge about the narcotics concealed inside the layer of the bag is devoid of force, mainly for the reason that petitioner voluntarily took the bag from co-convict Muhammad Anwas at Airport for onward transmission to Nadeem Ashraf Butt alias Pasha to Frankfurt. The said bag was opened in his presence and 1780 grams of heroin was recovered from inside the same from which two samples were taken which were opined to be heroin as per report of Chemical Examiner. Irrespective of the above, the fact that petitioner was having German Passport and Ticket for Frankfurt at the relevant time further corroborates the case of prosecution.
From the above resume, it is proved beyond any shadow of doubt that petitioner while attempting to smuggle narcotics out of Pakistan was intercepted at Islamabad Airport.
For what has been discussed above, we do not find any justification to interfere with the impugned judgment which is accordingly maintained.
Resultantly, petition being devoid of force is dismissed and leave to appeal refused.
(A.S.) Petition dismissed.
PLJ 2006 SC 196
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar and Mian Shakirullah Jan, JJ
NEK ALAM (deceased) through L.Rs.--Appellants
versus
SHABBIR HUSSAIN and others--Respondents
Civil Appeal No. 2026 of 2001, decided on 10.3.2005.
(On appeal from judgment dated 23.2.2001 of the Lahore High Court, Rawalpindi Bench, passed in C.R. No. 255-D of 1987).
Punjab Pre-emption Act, 1913 (I of 1913)--
----S. 5--Constitution of Pakistan 1973--Art. 185--Suit for pre-emption--Nature of transaction--Validity--Suit property was never used as graveyard either at time of sale or prior thereto--Same continues to be in physical possession of appellants/pre-emptors as part of joint khata of agricultural land--Suit property was located at distance of more than three miles from different village of respondents--Mere fact that in sale deed, sale of suit land was intended to be for purpose of establishing graveyard would not be conclusive evidence as to its character and status--Civil Court was empowered to go behind recital of sale-deed and to determine true nature of suit property--Held: Appellant, had proved their right of pre-emption over suit land and suit of appellants was rightly decreed by trial Court as well as by First Appellate Court--Further held: Impugned order of High Court was not sustainable at law--Appeal allowed. [P. 198 & 199] A, B & C
PLD 1973 SC 394; 31 P.R. 1901; 22 P.R. 1911; 26 P.R. 1912; 27 I.C. 799; 95 I.C. 675; AIR 1923 Lah. 209 and AIR 1924 Lah. 495 ref.
Mr. Muhammad Aslam Uns, ASC and Mr. M.A. Zaidi, AOR for Appellants.
Mr. M. Ilyas Sheikh, ASC for Respondents Nos. 1-3 to 10.
Ex-parte for Respondent No. 3.
Date of hearing : 10.3.2005.
Judgment
Faqir Muhammad Khokhar, J.--This appeal, by leave of the Court, is directed against judgment dated 23.2.1001, passed by a learned Single Judge of the Lahore High Court, Rawalpindi Bench, in Civil Revision No. 255-D of 1987.
Late Nek Alam (predecessor-in-interest of the appellants), being owner in the estate, instituted against the respondents a suit for possession through pre-emption of the land measuring 2 kanals and 5 marlas which was sold by one Maqbool Hussain Shah for ostensible sale price of Rs. 85,00/-. A Civil Judge, Jhelum, framed necessary issues on the divergent pleadings of the parties, recorded their evidence, and by judgment and decree dated 25.11.1985, decreed the suit of the appellants. The appeal of the respondents there-against was dismissed by the District Judge, Jhelum, by judgment and decree dated 10.3.1987. Therefore, the respondents filed Civil Revision No. 255-D of 1987 which was allowed by a learned Single Judge of the Lahore High Court, Rawalpindi Bench, by the impugned judgment dated 23.2.2001. Consequently, the judgments and decrees of the Courts below were set aside and the suit of the appellants was dismissed, Hence this appeal, by leave of the Court.
The learned counsel for the appellants argued that the High Court was not justified in arriving at a conclusion merely on the basis of recital in the sale-deed that the suit property had been purchased by a ten member committee of its future use as a graveyard and, therefore, the same was not pre-emptible. It was next contended that the suit property was located at a distance of more than three miles from the village abadi of the respondents and that the suit property was a fraction of a joint khata of 17 kanals and 19 marlas of land which had not been partitioned. It was lastly argued that the suit property continued to be in possession of the appellants and was never used as a graveyard. Therefore, the same was not exempt from pre-emption under the law.
On the other hand, the learned counsel for the respondents vehemently contended that it was specifically mentioned in the registered sale-deed that the suit property was sold for the purpose of using the same as a graveyard. Therefore, the suit land was not pre-emptible in view of provisions of Section 5 of the Punjab Pre-emption Act, 1913, under which that no right of pre-emption would exist in respect of the sale of or the foreclosure of a right to redeem (a) a shop, serai or katra; (b) a dharamsala, mosque or other similar buildings. The learned counsel made a reference to paragraph 247 of Mulla's Principles of Mahomedan Law, 17th Edition, 1972, by M. Hidayatullah, late Chief Justice of India, in that a vendor was entitled to adopt any legitimate device to defeat the right of pre-emption on the ground of contiguity. The learned counsel also relied on the case of Muhammad Jan versus Suleman and others (PLD 1968 Peshawar 181).
We have heard the learned counsel for the parties and have also perused the available record. Admittedly, the suit property was never used as a graveyard either at the time of sale or prior thereto. The same continues to be in physical possession of the appellants/pre-emptor as a part of joint khata of agricultural land. There suit property is located at a distance of more than three miles from a different village of the respondents. The mere fact that, in the sale-deed, the sale of the suit land was intended to be for the purpose of establishing a graveyard would not be conclusive evidence as to its character and status. The Civil Court was empowered to go behind the recital of the sale-deed and to determine the true nature of the suit property. In the case of Haji Mian Muhammad versus Ghaulm Mustafa (PLD 1973 S.C. 394), it was held that the relevant point of time for determining the true nature and character of the property in dispute was the time of its sale when the cause of action in a pre-emption suit arose and the Court was not bound to accept the description as given to the property by the parties to the sale. A some what similar view was taken in the cases of Mawasi and others versus Maya Ram and others (31 P.R. 1901), Mahant Kirpa Singh versus Maya Ram and others (22 P.R. 1911) Jirva versus Buta and others (26 P.R. 1912), Hannumal versus Atna Ram (27 I.C. 799), Jhabban Lal and another versus Muhammad Umar and another (95 I.C. 675), Sant Singh versus Goband Ram (AIR 1923 Lahore 209) and Gokal Chand versus Sanwal Das and others (AIR 1924 Lahore 495). The reference of the learned counsel for the respondents to the case of Muhammad Jan (supra) was inapt. In the said precedent case shamilat land of a person after its dedication, was actually used for a long time as graveyard. Therefore, he was assumed to have ceased to be its owned who could not file a suit for pre-emption in respect of some other land on the basis of ownership in the shmilat deh and contiguity. In the present case, the appellants had proved their right of pre-emption over the suit land and the suit of the appellants was rightly decreed by the trial Court as well as by the first appellate Court. Therefore, the impugned judgment of the High Court is not sustainable at law.
For the foregoing reasons, this appeal is allowed and the impugned judgment dated 23.2.2001 of the High Court is set aside. Consequently, the judgments and decrees of the trial Court as well as that of the first appellate Court are restored. No order as to costs.
(A.S.) Appeal allowed.
PLJ 2006 SC 199
[Appellate Jurisdiction]
Present : Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ.
SHAHZAD alias SHADO and 3 others--Petitioners
versus
JUDGE ANTI-CORRUPTION COURT and 3 others--Respondents
Civil Petition No. 1601 of 2005, decided on 19.4.2005.
(On appeal from the order dated 7.4.2005 of the Lahore High Court, Lahore passed in WP No. 5420/05)
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----S. 10(4)--Anti-Terrisom Act, (XXVII of 1997), S. 7--Constitution of Pakistan 1973), Art. 185(3)--Conviction and sentence of death for offence of gang rape--Compounding of offence declined by Courts upto High Court--Legality--All those offences under which petitioners were tried and convicted are non-compoundable offences--Offence under S. 10(4) of Ordinance of 1979, having been included in Schedule of offences falling within ambit of Anti-Terrorism Act, 1997, was rightly tried by Anti-Terrorism Court--Conviction and sentence of death having been maintained upto the Supreme Court and rejection of mercy appeal there against by President and offences, under which petitioners were convicted being non-compoundable, rejection of application for compounding of offences by Courts including High Court does not warrant interference and the same were maintained. [Pp. 201 & 202] A
2003 SCMR 658 ref.
Mr. G.N. Gohar, ASC for Petitioners.
Respondents not represented.
Date of hearing : 19.4.2005.
Order
Abdul Hameed Dogar, J.--Through this petition, petitioners seek leave to appeal against the order dated 7.4.2005 whereby Writ Petition No. 5420 of 2005 filed by them was dismissed and request for compounding the offence was declined.
the Ordinance') and Section 7 of the Anti-Terrorism Act, 1997 (hereinafter referred to as the Act') against petitioners. On completion of investigation, petitioners were sent up to face trial before Judge Special Court, Anti-Terrorism, Faisalabad. On the completion of trial, petitioners were found guilty and were convicted and sentenced vide judgment dated 18.12.1999 by the trial Court as under:--(i) U/S. 411 PPC, 3 years RI and fine of Rs. 20,000/-., in default 9 months R.I.;
(ii) U/S. 449 pPC, life Imprisonment;
(iii) U/S. 506 PPC, 2 years R.I. and Fine Rs. 25,000/-, in default 6 months R.I.;
(iv) U/S. 10(4) of the Ordinance, Death; and
(v) U/S. 7 of the Act, Death and fine of Rs. 50,000/-, in default by years R.I.
They preferred Criminal Appeal No. 1369/99 challenging their convictions and sentences before learned Lahore High Court, Lahore. Trial Court also sent Murder Reference No. 534-T for conformation of death sentence or otherwise. The appeal was dismissed whereas Murder Reference was answered in affirmative and sentence of death was maintained. They still feeling dissatisfied, filed Criminal Petition Nos. 705-L, 720-L, 744-L and 749-L of 2001 before this Court which too were dismissed and leave to appeal was refused vide judgments dated 7.3.2003 and 18.3.2003. Where after their review petitions were also dismissed. Ultimately, petitioners approached President of Pakistan who also rejected their mercy petition.
Consequently, death warrants of the petitioners were issued after fulfilling all legal requirements and Superintendent Jail, Faisalabad sent letter dated 15.2.2005 to the family members of the petitioners to have last meeting with them as they were being executed on 28.2.2005,. It was thereafter, due to intervention of elders and Catholic Bishop Joseph Courts, compromise was affected and victim Mst. Saima and complainant Bashir Masih pardoned them. It was on 25.2.2005 petitioners moved compromise application before trial Court and statements of complainant Bashir Masih and victim Mst. Saima were recorded wherein they stated that they have forgiven the petitioners in the name of Almighty Allah but learned trial Court refused to accept compromise vide order dated 29.3.2005. Against this Order petitioners filed Writ Petition No. 5420/2005 before Lahore High Court, Lahore which was dismissed vide impugned order.
We have heard Mr. G.N. Gohar, learned ASC for the petitioners at length and have gone through the record and proceedings of the case in minute particulars.
Learned counsel appearing on behalf of petitioners mainly contended that victim Mst. Saima as well as complainant Bashir Masih have forgiven the petitioners in the name of Almighty Allah and have entered compromise with them and have compounded the offence, as such, they may be acquitted. He further contended that this Court in the case of Maulana Nawab-ul-Hassan and 7 others vs. The State (2003 SCMR 658) has accepted the composition of offence though the petitioners therein were convicted under Section 7 of the Act.
Admittedly, the conviction and sentence of all the four petitioners have been maintained upto this Court. Even mercy petition has been rejected by the President of Pakistan. It is worth mentioned that all the offences under which the petitioners have been convicted are non-compoundable offences. The offence in the instant case was registered on 7.11.1999 on which date, offence under Section 10(4) of the Ordinance was included in the Schedule of the Offences falling within the ambit of the Act, thus was rightly tried by Anti-Terrorism Court and sentenced to death under the above mentioned provision of law and Section 7 of the Act. Offence under Section 10(4) of the Ordinance and Section 7 of the Act are offences against society, it was because of that object legislature made these offences non-compoundable. The offence u/S. 10(4) of the Ordinance called as "Gang Rape" being a henious offence was knowingly included in the schedule of the Act. It being an offence against society creates terror and fear of insecurity in the society and public at large, disturbing normal tempo of life and tranquility of society. Culminative fall of the occurrence is to be seen which, if examined in the light of fact of the present case, the provision of Section 7 of the Act are fully attracted.
Only offences affecting human body mentioned in Chapter XVI of Pakistan Penal Code were made compoundable by substituting Sections 299 to 338-H vide Criminal Law (Second Amendment) Ordinance, 1990 and legal heirs of deceased and victim had been allowed to compound the offence with the permission of the concerned Court. The case of Maulana Nawab-ul-Hassan referred (supra) is of no help to the case of petitioners as the accused who were convicted and sentenced under Section 7 of the Act by the trial Court were acquitted in appeal by the learned High Court. It was only Section 302(b) and Section 324 PPC which being compoundable were compounded and compromise application was allowed.
For what has been discussed above, we do not find any justification to interfere in the impugned order which in our opinion is well in accordance with law. Accordingly, petition being devoid of force is dismissed and leave to appeal refused.
(A.A.) Leave refused.
PLJ 2006 SC 202
[Appellate Jurisdiction]
Present : Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ.
BUSHRA BIBI--Petitioner
versus
DISTRICT EDUCATION OFFICER (FEMALE) DISTRICT SIALKOT, and another--Respondents
Civil Petition No. 554-L of 2004, decided on 16.12.2005.
(On appeal from the judgment dated 10.12.2003 passed by the Punjab Service Tribunal, Lahore, in Appeal No. 123/2003)
Punjab Removal from Service (Special Powers) Ordinance, 2002--
----Ss. 3 & 5--Constitution of Pakistan, 1973, Art. 212(3)--Petitioner appointed untrained teacher terminated for not acquiring qualification with in the time allowed by department--Appeal before Service Tribunal failed leave sought from Supreme Court on grounds that there was no requirement of law to acquire requisite qualification for the part within a certain period and that petitioner could not be terminated. Punished for the faults/lapses of department--Held: Department had already shown grace and petitioner failed to acquire qualification within the prescribed period and the petitioner does not involve any substantial question of law of public importance within the meaning of Art. 212(3) after Constitution Leave refused--Petition dismissed. [P. 203] A, B, C & D
1990 SCMR 1500; 1996 SCMR 1185 ref.
Mr. Pervaiz Inayat Malik, ASC and Mr. Tanvir Ahmad, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 16.12.2005.
Judgment
Faqir Muhammad Khokhar, J.--The petitioner seeks leave to appeal from judgment dated 10.12.2003, passed by the Punjab Service Tribunal, Lahore in Appeal No. 123/2003.
The petitioner was appointed as untrained Drawing Teacher. Her services were terminated w.e.f. 31.12.2001 on the ground that she had failed to acquire the prescribed qualification. She preferred service Appeal No. 123/2003, which was dismissed by the Tribunal through the impugned judgment dated 10.12.2003.
The learned Counsel argued that there was no requirement of law to acquire requisite qualification for the post within a certain period. Therefore, no objection could be taken if the petitioner had acquired such qualification subsequently to the termination of her service. The learned Counsel placed reliance on the cases of Rehmat Ali Shah versus Secretary, Defence Production Division Rawalpindi (1990 SCMR 1500) and Hameed Akhtar Niazi versus The secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185).
We have heard the learned Counsel for the petitioner at some length and have also perused the available record. Admittedly the petitioner was not qualified at the time of her appointment. However, the department had shown grace to permit the petitioner to acquire the qualification within reasonable time of more than six years. She failed to qualify the prescribed exam. and it was only after shell was terminated from service that claimed to have acquired such qualification in the year 2002. This petition does not involved any substantial question of law of public importance within the meaning of Article 212(3) of the Constitution of Islamic Republic of Pakistan. The impugned order is just and fair to which no exception can be taken.
For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly.
(R.A.) Petition dismissed.
PLJ 2006 SC 203
[Appellate Jurisdiction]
Present : Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Falak Sher, JJ.
AZIZULLAH--Petitioner
versus
JAWAID A. BAJWA and 3 others--Respondents
Civil Petition No. 3244 of 2003, decided on 7.6.2005.
(On appeal from the judgment of High Court of Sindh, Karachi, dated 12.11.2003 passed in HCA 177/02).
Damages--
----Public functionaries must act and discharge their duties quite fairly and in accordance with law and if a wilful wrong was done to a person by a public functionary causing him a mental torture and agony, physical injury or financial loss, he would be entitled for reasonable compensation by way of damages and Court must determine the proper damages keeping in view the nature of wrong done and the loss caused. [P. 207] A
Damages--
----Damages on basis of malicious prosecution--Held: Lower Courts concurrently found that petitioner had been compelled to face the prosecution and had suffered loss in consequence of the unlawful act of respondents, but omitted to assess the claim of damages for loss of profit and mental torture in facing the criminal prosecution--Petitioners was admittedly exonerated from the charge of smuggling by judicial and quasi judicial forums--Respondents did not challenge the verdict of such forums, which attained finality--They even not assailed the judgments and decrees of lower Courts--Amount of damages was enhanced from Rs. 3,00,000/- to Rs. 10,000,000/- in addition to Rs. 1,00,000/- as the sale price of watches payable to the petitioner interims of judgment of trial Court. [Pp. 207 & 208] B, C & D
Petitioner in person.
Nemo for Respondent No. 1.
Mr. Abdul Rashid Malik, ASC for Respondent No. 2.
Raja M. Irshad, D.A.G. for Respondents Nos. 3 & 4.
Date of hearing : 7.6.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan has been directed against the judgment dated 12.11.2003 passed by a Division Bench of High Court of Sindh, at Karachi, in HCA No. 177 of 2002 arising out of a suit for damages.
The essential facts in the small compass giving rise to this petition are that petitioner having filed a suit for recovery of damages to the tune of Rs. 1,22,50,000/- against the respondents pleaded that he was running business of sale of wrist watches and allied items in Doha, Qatar. The petitioner on return from a business tour of far-east while travelling back for Qatar by a PIA flight, on 21/22.8.1986, was in transit at Karachi Airpor, when the officials of customs department having made search of his baggage, seized the wrist watches and bands from his possession being taken by him to Qatar for sale, on the pretext that he intended to smuggle these items into Pakistan. The petitioner was also dragged in a criminal case under Section 2(s) read with Section 156(1)(8) of the Customs Act, 1969, and was tried by the Special Judge (Customs and Taxation) Karachi but was ultimately acquitted. In consequence to the adjudication proceedings, the seized goods were confiscated and subsequently, the Member (Judicial) CBR having set aside the confiscation order directed for release of the goods but the department without waiting for the decisions of the matter by Member, Judicial, auctioned the confiscated goods at a nominal price. The petitioner having pleaded in the suit that not only the action of seizing of goods was made fide but the confiscation order was also not passed in good faith and he was maliciously prosecuted claimed the damages in the following manner:--
Actual price of goods. Rs. 300,000.00
Profit on sale of goods. Rs. 7500,000.00
Expenses on travel from Dir to Karachi During trial. Rs. 200,000.00
Loss of Visa. Rs. 1000,000.00
Loss of business in Qatar. Rs. 1000,000.00
Loss of reputation and goodwill. Rs. 2000,000.00
Mental torture and humiliation due to malicious prosecution. Rs. 300,000.00
Total: Rs. 12,250,000.00
"Under the above circumstances I would award damages to the plaintiff in the sum of Rs. 300,000/- which are computed on the basis of his expenses for travelling from DIR to Karachi and Islamabad. His being locked up in jail and the balance amount that would be payable to him for the value of the consignment after deducting the amount already received.
For the foregoing reasons, the suit is disposed of.
"From examination of the above quoted operative part of the judgment, it appears that the appellant has been awarded damages in the sum of Rs. 300,000/-. It also appears that the appellant has also been awarded payment of balance amount that would be payable to him for the value of consignment after deducting the amount already received. The evidence shows that the Federal Ombudsman has granted to the appellant an amount of Rs. 119,000/-. Appellant appears to have accepted the decision of Federal Ombudsman and has received Rs. 109,000/- from the respondents leaving balance of Rs. 10,000/- to be paid to the appellant. In terms of the judgment and decree the appellant is entitled to be paid Rs. 10,000/- as balance of the value of consignment. The judgment and decree does not specify as to who has to pay the decretal amount. We find that the respondents are jointly and severally liable to make payment of the decretal amount to the appellants.
With the above clarification and modification, the judgment and decree passed in the suit is maintained and the appeal is disposed of accordingly.
The petitioner appearing in person has argued that the learned trial Judge and also the appellate Bench of the High Court having come to the conclusion that action of the respondents was illegal and in consequence to their wrongful act he having suffered loss, was entitled to the damages but without considering the question of damages in proper manner in accordance with law, granted a decree only to the extent of actual price of the goods and the meager amount of travelling expenses. The petitioner has forcefully argued that the criminal prosecution as well as adjudication proceedings were not initiated in good faith as ultimately, the two forums having exonerated him from the allegation, held him not guilty of smuggling. He added that despite the fact that he was acquitted in the criminal cases by the learned Special judge (Customs and Taxation), Karachi and confiscation order was also set aside by the Member Customs (Judicial) with direction to release goods, the officials of customs department, dishonestly without waiting for conclusion of the proceedings before the above forums, auction the confiscated goods for a nominal price and thereby caused heavy loss of the expected profit to be earned by him on the sale of wathces. The sum and substance of the case of petitioner was that he being resident of Swat, faced criminal trial and adjudication proceeding at Karachi for a continuous period of about two years and apart from having borne heavy expenses on travelling from Dir to Karachi on each date of hearing also suffered loss of profit, loss of reputation, goodwill, business in Doha, Qatar and mental torture.
Raja Muhammad Irshad, learned DAG assisted by Mr. Abdul Rashid Malik, ASC, appearing on behalf of the respondents, on the other hand made an attempt to argue that the petitioner was not a transit passenger at Karachi and he having been found in possession of restricted goods was proceeded against by the customs officials in good faith and thus was not entitled to any damages at all what to talk of the amount being claimed by him in the suit. They however, conceded that petitioner was acquitted from the criminal case and the order of confiscation of goods was also declared illegal by the Member (Judicial) in revisional jurisdiction and that the verdict given by the Special Judge and Member Judicial was not challenged before the next forum. The learned counsel, without justifying the sale of the goods through auction pending final disposal of the matter by the CBR and the criminal case by the Special Judge, submitted that the decreed passed against the respondents, has already been satisfied.
We have heard the petitioner in person and learned DAG assisted by Mr. Rashid Malik, ASC and also perused the record with their assistance. The grievance of the petitioner regarding the reasonableness of the quantum of damages is a mixed question of law and facts but the real question regarding consideration in the light of the admitted fact of the exoneration of the petitioner from the criminal charge and also declaring the order of confiscation of goods, illegal by the Member (Judicial), would be as to whether the two Courts have properly exercised the jurisdiction in determining the question of damages. The learned single Judge in the High Court in the original jurisdiction, having concluded that the petitioner due to the wrongful act of respondents, having suffered loss, was entitled to the damages but except a decree in respect of the actual price of goods and travelling expenses borne by him to attend the criminal trial and adjudication proceedings at Karachi from Dir (Swat), not awarded damages for any other claim and learned Division Bench of the High Court also in appeal not attended this essential question. The perusal of record would show that the value of goods at the time of seizure was fixed as Rs. 2,99,400/ whereas the actual price claimed by the petitioner was rupees 3,00,000/- out of which he was paid only an amount of Rs. 1,09,000/- under the direction of Ombudsman and the decree to the extent of Rs. 10,00,000/- regarding the remaining sale price of the goods and the amount of compensation of Rs. 3,00,000/- awarded to the petitioner as travelling expenses, was still not satisfied.
The pubic functionaries must act and discharge their duty quite fairly and in accordance with law and if a wilful wrong is done to a person by a public functionary and in consequence to such wrong, he has suffered mental torture and agony or physical injury or financial loss, he would be entitled to be reasonably compensated by way of damages in accordance with law and the Court must determine the proper damages keeping in view the nature of wrong done and loss caused.
The Court of first instance as well as the appellate Court having concurrently drawn the conclusion that in consequence to the unlawful act of the respondents, wrong was done to the petitioner, as a result of which he was compelled to face the prosecution and suffered loss, was entitled to the damages but omitted to assess the claim of damages for loss of profit and mental torture for facing the criminal prosecution before the Special Judge (Customs) and adjudication proceedings before the departmental authorities at Karachi. There is no substance in the argument of learned DAG that in absence of evidence of actual loss, compensation of damages in respect of loss of profit and mental torture could not be separately determined and consequently, estimated damages on travelling in addition to the actual price of watches, was awarded. The petitioner in addition to the statement made on oath also placed reliance on documentary evidence in support of his claim and the respondents, except the general denial, having not bring any evidence on record in rebuttal to justify the criminal prosecution and departmental adjudication against the petitioner in good faith, have failed to defend their action in law. The petitioner was admittedly exonerated from the charge of smuggling by the judicial and quasi judicial forum and the respondent have neither challenged the verdict given by the criminal Court nor that of the Member (Judicial) on the adjudication side which attained the finality and so much so, the judgment and decree passed by the learned trial Court and the High Court in the suit for damages was not assailed. The respondents, having charged the petitioner for smuggling of wrist watches and bands of watches into Pakistan in commercial quantity for sale, have impliedly conceded it a profitable business and loss of profit. The illegal and wrongful prosecution in absence of specific proof of good faith, would definitely fall within the purview of malicious prosecution and mental torture was the natural consequence therefore, the petitioner would also be entitled to reasonable compensation for loss of profit and mental torture. However, the petitioner has not been able to bring on record any evidence regarding the nature of his business in Doha, Qatar and the loss of reputation and goodwill, therefore, he would not be entitled to claim any damages in this behalf.
The respondents having not filed an appeal against the judgment of the trial Court in the High Court, were estopped to challenge the correctness of the finding regarding the wrongful prosecution of the petitioner and perusal of record would suggest that the two Courts have not considered the question relating to the damages is respect of loss of profit on the sale of watches and the mental torture caused to the petitioner and the omission to asses and compute reasonable damages for loss of profit and mental torture would amount failure of exercise of the jurisdiction.
In the light of above discussion and the circumstances of the case, we deem it proper to enhance the amount of damages from Rs. 3,00,000/- to Rs. 10,00,000/- as compensation for travelling expenses, loss of profit and mental torture which shall be paid to the petitioner in addition to Rs. 1,00,000/- the sale price of watches payable to him in terms of the judgment of in trial Court. There is nothing on record to suggest that Respondents Nos. 1 & 2 having personal interest, acted for some extraneous consideration in the transaction and it is also not clear from the judgment of the trial Court or the appellate Court that their action was motivated for any financial consideration and the trial Court also has not held them liable to pay damages in their personal capacity therefore, the judgment shall be implemented by the Respondents Nos. 3 & 4 for the purpose of payment of the amount of compensation to the petitioner for the satisfaction of the decree. This appeal with the above modification in the decree passed by the High Court, is partly allowed. There will be no order as to costs.
(J.R.) Appeal partly allowed.
PLJ 2006 SC 209
[Appellate Jurisdiction]
Present : Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday and Muhammad Nawaz Abbasi, JJ.
NESTLE MILKPAK LIMITED, LAHORE--Petitioner
versus
CLASSIC NEEDS PAKISTAN (PVT.) LTD., LAHORE and 3 others--Respondents
Civil Petition No. 2785-L of 2004, decided on 4.4.2005.
(On appeal from the judgment dated 15.7.2004 passed by Lahore High Court, Lahore, in Civil Revision No. 1814/2004).
Administration of Justice--
----The cost at the time of preliminary hearing of matter is expected to also safeguard the interest of the party which is not present before the Court and should not pass an order which can cause inconvenience to other parties or public in general. [P. 211] D
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisiction--Held: An order which did not qualify the test of `case decided' could not be challenged in revisional jurisdiction.
[P. 211] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Interim order--Held: Normally a revision petition against an interim order was not maintainable but when it had been passed after considering the facts and was found perveres or suffering from jurisdictional defect, the revisional Court might, in the interest of justice interfere in such order. [P. 211] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional Jurisdiction--Case decided--Held: Expression, `case decided' was not necessarily confined to the final order rather it might in peculiar facts & circumstances of the case, related to an interlocutory order passed at any stage of proceedings including an interim order requiring application of judicial mind. [P. 211] C
Mr. M. Farooq Amjad Mir, ASC for Petitioner.
Mr. M.S. Hamid Khan, ASC for Respondent No. 1.
Mr. Abbas Mirza, ASC for other Respondents.
Date of hearing : 4.4.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 185(3) of the Constitution has been directed against the judgment dated 15.7.2004 passed by a learned Judge in chambers of the Lahore High Court, Lahore, in a civil revision arising out of a suit for declaration and permanent injunction involving the dispute in respect of a contract.
In pursuance of the advertisement of Pakistan Railways inviting tenders for grant of fanchies right of sale of bottled water at the railway stations and in the trains on regional basis, the petitioner and Respondent No. 1 offered bids which being not to the expectation of the official respondents, were required to be raised and the petitioner accordingly raised his bid. The grievance of the petitioner was that he was sole bidder and the official respondents having principally accepted the revised bid offered by him, have given him assurance for execution of contract but subsequently, awarded the contract to Respondent No. 1 on 5.6.2004. The relief sought by the petitioner in the suit for declaration and permanent injunction filed by him in the Civil Court at Lahore, was firstly that Respondents Nos. 2 to 4 may be restrained from awarding contract to Respondent No. 1 and secondly, they be directed to execute agreement in his favour on the basis of offer made by him as sole bidder. The petitioner also moved an application under Order 39, Rules 1 & 2 CPC read with Section 151 CPC in the suit for temporary injunction but having failed to get the temporary relief, filed an appeal and a learned Additional District Judge at Lahore, after preliminary hearing of the appeal on 29.11.2004 while issuing notice to the respondents also suspended the operation of contract. The Respondent No. 1, being aggrieved of this order, filed a civil revision in the Lahore High Court, Lahore, and a learned Judge in chambers having come to the conclusion that the order of suspension of contract at the preliminary hearing of the appeal was not justified, allowed the civil revision and by setting aside the order impugned therein, directed the appellate Court for decision of the application under Order 39, Rules 1 & 2 CPC after hearing the parties. The petitioner being aggrieved of the above order passed by the High Court in the civil revision has brought this petition before this Court.
Learned counsel for the petitioner has contended that the order passed by the learned Additional District Judge in appeal was an ad interim order which being not covered by the expression `case decided' would not be revisable, therefore, civil revision was not maintainable and the interference of the High Court in the matter in its revisional jurisdiction, was not legal.
M/s. Hamid Khan and Abbas Mirza, learned counsel representing the respondents on the other hand, have submitted that the appellate Court while passing an interim order in appeal has virtually passed final order and practically decided the lis before it at limine stage without notice to the respondents. The learned counsel added that the tenor of the order impugned in the civil revision, would definitely bring it within the expression `case decided' which was evidently an improper and fanciful order, therefore, the High Court in exercise of its revisional powers of superintendence and control over the judicial acts and omissions of the subordinate Courts, has rightly interfered in the matter.
case decided' cannot be challenged in revisional jurisdiction under Section 115 CPC and normally a revision petition against an interim order is not maintainable but an interim order which is passed after considering the facts, if is found perverse or suffering from jurisdictional defect, the revisional Court may in the interest of justice, interfere in such order. The expressioncase decided' is not necessarily confined to the final order rather it may, in the peculiar facts and circumstances of the case, relate to an interlocutory order passed at any stage of the proceedings including an interim order requiring application of judicial mind. It may be seen that an order passed in an improper exercise of jurisdiction if is not interfered, it may lead to injustice or hardship and if an interim order by its inception, appears to be a final order and also has an effect of final order, such an order can be corrected in the revisional jurisdiction. The Court at the time of preliminary hearing of a matter, is expected to also safegaurd the interest of the party which is not present before the Court and should not pass an order at this stage which may cause inconvenience to other parties or public in general.
The learned counsel for the petitioner stated that presently there is no proper and satisfactory arrangement of supply of bottled water in the railways system and due to the non-availability of facility of bottled water in trains and at the railway stations, the passengers are suffering and facing hardships. Leaned counsel for the petitioner has not been able to satisfy us that in the peculiar circumstances of the present case, the order of suspension of the operation of contract passed by the learned Additional District Judge in appeal at the time of preliminary hearing, could justifiably be termed as an interim order and the
High Court could not correct the error in the order in its revisional jurisdiction. Be that as it may, we without going into the controversial question regarding the maintainability of the revision petition against such an order or expressing on merits in either way, would prefer to dispose of this petition with direction that instead of consuming time on the litigation on the ancillary matter, the main appeal should be decided to avoid inconvenience to the railway system. The learned counsel for the parties have also agreed for early disposal of appeal. We, therefore, keeping in view the nature of dispute and circumstances of the case, set aside both the orders passed by the learned Additional District Judge in appeal as well as by the
High Court in civil revision and direct that the main appeal shall be decided by the learned District Judge, Lahore. The parties shall appear before the
District Judge on 11.4.2005, who after hearing them, shall decide the whole matter without further delay and pending disposal of appeal, the contract shall not operate. This petition is the above terms, stands disposed of.(J.R.) Petition disposed of.
PLJ 2006 SC 212
[Appellate Jurisdiction]
Present: Khalil-ur-Rehman Ramday and Tassaduq Hussain Jillani, J.
KHUDA BAKHSH and others--Petitioners
versus
STATE--Respondent
Crl. P. No. 199-L of 2005, decided on 3.8.2005.
(On appeal from the judgment dated 7.2.2005 of the Lahore High Court, Multan Bench, Multan, passed in Criminal Appeal No. 59 of 2000 and Murder Reference No. 162/2000).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Constitution of Pakistan 1973, Art. 185(3)--Conviction & sentence--Appreciation of evidence--Concurrent finding--Held: Brutal murder of 13 persons including of 6 ladies, with sharp edged weapons--Occurrence would certainly have continued for quite sometime--Complainant, being resident of the vicinity was a natural witness--Convicts were not strangers to the complainant--Convicts of a dastardly crime did not deserve any mercy--Leave refused.
[Pp. 213, 214 & 216] A, B, C & D
Mr. Abdul Aziz Khan Niazi, ASC with Mr. Tanvir Ahmad, AOR for Petitioners.
Nemo for State.
Date of hearing: 3.8.2005.
Judgement
Khalil-ur-Rehman Ramday, J.--This case revolves around three real but unfortunate brothers, namely, Haji Hidyatullah, Haji Bashir Ahmed and Haji Allah Ditta. In an occurrence which had taken place at about 2.00/3.00 a.m. during the night between the 14th and 15th of April, 1999, the above mentioned Haji Hidyatullah; his wife Mst. Said Mari; his five daughters, namely, Mst. Shehnaz Mai (aged 12/13 years). Mst. Saffia Bibi (aged 23/24 years), Mst. Ruqia Bibi (aged 14/15 years), Mst. Parveen Bibi (aged 6/7 years) and Mst. Sumaira Bibi (aged only two years) and his three sons namely, Irshad (aged 15./16 years), Habib (aged 25 years) and Jumshaid (aged 8/9 years) were murdered alongwith the above mentioned other brother, namely, Haji Bashir Ahmed, his son Abdul Majid and a son of his son Abdul Majid, namely, Umar Hayat (aged about 3/4 years). Through an FIR Bearing No. 106 dated 15.4.1999 of Police Station Sarai Sidhu of District Khanewal the above mentioned third brother, namely, Allah Ditta and his fine sons, namely, Khuda Bakhsh, Muhammad Akram, Muhammad Iqbal, Muhammad Ashgar and Muhammad Akbar were accused of having killed the said 13 persons. Allah Ditta accused, however, died before the conclusion of the trial.
Through a judgment dated 26.1.2000 the learned Sessions Judge, Khanewal found all the five brothers guilty of the charge; convicted each one of them, inter alia, under Section 302 PPC and punished each one of them with death on thirteen counts.
On an appeal filed by them in the Lahore High Court, Akbar accused was acquitted of all the charges to which extend Criminal Appeal No. 59 of 2000 filed by the said five convicts was allowed but the said appeal was, however, dismissed to the extent of the other four convicts, namely, Khuda Bakhsh, Muhammad Akram, Muhammad Iqbal and Muhammad Asghar whose sentences of death were consequently confirmed in pursuance of Murder Reference No. 162 of 2000.
This petition before us by the said four convict-brothers impugns the above noticed judgment of the Lahore High Court dated 7.2.2005 passed in the said Criminal Appeal No. 59 of 2000 and the above-noticed conviction and punishments recorded against them.
We have heard the learned ASC for the petitioners at some length and have also perused the record in the light of the submissions made by him.
The questions to which out attention was drawn were whether there was any possibility of the occurrence in question which had taken place in the dark hours of the night having gone un-witnessed; whether Ghulam Shabbir complainant (PW. 9) and Noor Ahmed (PW. 10) could have witnessed the said occurrence; whether the said two eye-witnesses could have identified the assailants and whether there was any motive for the four convict-petitioners to commit the crime in question?
As has been noticed above, thirteen person including six females had been butchered to death with sharp-edged weapons, Killing of such a large number of persons with sharp-edged weapons could not have been accomplished in the flash of an eye and the occurrence, therefore would have continued for quite sometime. Since the actual killers were four in number, therefore, they could not have murdered all the thirteen deceased persons simultaneously. The ones attacked in the first instance would have moaned, cried, writhed and rolled which would have obviously awakened the ones whose turn came later and those attacked later would have obviously raised alarm seeking help and intervention. The conclusion that such a situation would have attracted people to the scene of occurrence would thus be an irresistible and un-exceptionable finding. Therefore, the concurrent finding of the two learned Courts that the occurrence in question could not have gone unwitnessed and the culprits could not have escaped un-identified could not be said to be an un-reasonable or an un-believable inference.
Ghulam Shabbir complainant (PW-9) resided in a house only 40 Karams away from the place of occurrence which would mean about 200 fit. and in the circumstances the complainant being attracted to the spot on account of the cries of the victim and the alarm raised by them would be a highly probable phenomenon. Noor Ahmed (PW-10) claimed to be present in the house of Ghulam Shabbir complainant and this is how he explained having reached the spot and having witnessed the commission of the crime in question. Ghulam Shabbir complainant was a natural witness of the occurrence as he was a resident of the vicinity of the place of occurrence and it could not be said that the alarm raised by thirteen persons would not be audible at a distance of 200 feet and that also in the dead of the night which is the most silent part of a night.
He was not related to the deceased party nor could he be shown to have any reason or ill-will which could have prompted him to maliciously implicate such close relatives of the deceased party as the perpetrators of the crime in question. Similar was the position of Noor Ahmed (PW-10). Both of them were thus independent witnesses of the occurrence whose testimony was found credible and reliable by the two learned Courts i.e. the learned trial judge was the Hon'ble appellate Court.
As has been mentioned above, the convicts were no strangers to Ghulam Shabbir complainant and in the circumstances the identification of the assailants even during the night time could not have posed any problem to the complainant and more so when the occurrence would have lasted for quite some time.
There is another aspect of the matter which is one Mst. Daulat Mai. She was the mother-in-law of Haji Hidayatullah deceased and thus the mother of Mst. Said Mai deceased and the grand-mother of the eight deceased children of Haji Hidayatullah. Her other daughter was the wife of Allah Ditta accused (since dead) and thus she was also the grand-mother of the four convicts before us, Inspite of the fact that it was on record that she had reached the place of occurrence during or immediately after the crime in question had been committed in which occurrence her daughter, her eight grand-children and her son-in-law had been murdered and in which crime his other son-in-law, and her five grand-children from his other daughter had been implicated, she never ever raised any protest regarding the false involvement of her son-in-law and her five grand-children during the course of the investigation nor did she even appear at the trial to claim innocence of her said four grand-children facing death penalty. The silence of Mst. Daulat Mai was rightly considered as a strong circumstances corroborating the prosecution case. Recovery of blood stained weapons of offence and blood stained clothes of the four petitioners were further facts which offered support to the ocular testimony, if at all any corroboration was needed. Needless to add that the medical evidence also corroborated the eye-witness account.
Some argument was attempted to be made with respect to the motive which could have led the four petitioners to the murder of thirteen deceased persons. It is true that no details of the land dispute had been mentioned in the F.I.R. but the explanation offered for the same by the prosecution was quite convincing because the complainant was not a member of the unfortunate family and could thus not be expected to known any details of the said dispute. It was rightly pointed out by the two learned Courts that it was the defence itself which, through cross-examination of the investigating officer, had brought out the details of the said dispute on record which details had not been seriously controverted by the defence i.e. the accused party having a grouse against Haji Hidayatullah deceased having illegally secured transfer of 173 Kanals of land of Allah Ditta accused in his name. It was, therefore, rightly held by the two learned Courts that a valid reason had come on record which could have led the petitioners to the commission of the crime in question.
Relying upon some concession made by the doctor who had conducted the post-mortem examination of the bodies of some of the deceased persons, it was submitted that all the deceased persons could have been done to death while asleep. Such an opinion of the doctor was rightly discharged by the learned Courts because, as has been noticed above, the four assailants could not have done the thirteen deceased persons to death simultaneously and while the ones attacked first could have been killed while lying down but the others who were assaulted later would obviously have woken up when the ones attacked earlier were being injured and butchered and thus the opinion that all thirteen were done to death while asleep, was not plausible.
Having thus examined all aspects of the matter, we find that no exception could be taken to the findings of guilt recorded against the four petitioners. The conviction as recorded against them is, therefore, maintained.
The learned ASC for the petitioners finally prayed for lenient treatment for the four petitioners who were real brothers and who had been ordered to be hanged to death.
We are surprised at this prayer. As has been noticed above, the four petitioners had done their two uncles and all their descendants to death including children of 2 to 25 years of age. This was a dastardly crime committed by them and the perpetrators of such a crime deserved no mercy.
Consequently, this petition is dismissed. Leave refused.
(J.R.) Leave refused.
PLJ 2006 SC 216
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ
MATTIULLAH KHAN--Petitioner
versus
STATE--Respondent
Jail Petition No. 275 of 2002, decided on 12.7.2005.
(On appeal from the judgment dated 20.5.2002 of the Lahore High Court, Lahore, passed in Crl. Appeal No. 44-J of 2002).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan (1973), Art. 185(3) Conviction and sentence of death for offence of murder assailed by petitioner--Appreciation of evidence--Ocular, straightforward and consistent testimony furnished by complainant and other eye-witnesses were found to be credit worthy by trial Court as well as the High Court--No bars placed by law to accept testimony of police man and the same should be accepted like other prosecution evidence if the same fulfills all such conditions which are necessary for accepting and believing a witness--Testimony of Police Official's who were present at the spot when their colleague was murdered does not suffer from infirmity--No inherent defect or lacuna in evidence of both witnesses was pointed out whose presence at the site had been established beyond any shadow of doubt--Cogent and confidence inspiring evidence has been produced by prosecution which does not suffer from illegality and infirmity--Sentence of death recorded by trial Court and affirmed by High Court does not warrant interference and the same was, therefore, maintained--Leave to appeal was refused. [P. 219] A
Syed Ali Hassan Gillani, ASC for Petitioner.
Nemo for Respondent.
Date of hearing : 12.7.2005.
Judgement
Abdul Hameed Dogar, J.--Petitioner seeks leave to appeal against the judgment dated 20.5.2002 of a learned Division Bench of Lahore High Court, Lahore, whereby Criminal Appeal No. 44-J of 2002 filed by him and Criminal Revision No. 280 of 2002 filed by State were dismissed and sentence of death awarded by the trial Court was confirmed.
Briefly, stated, the facts of the case are that on 30.7.2000 Muhammad Anwar Khan, Constable No. 937 lodged FIR No. 120/2000 under Sections 302/353/186 PPC at Police Station Kamar Mashani, District Mianwali, wherein he alleged that on the day of occurrence i.e. 30.7.2000 he alongwith Muhammad Amir Constable, Muhammad Ayub and Khaliq Dad ASI were on patrolling duty in official Vehicle No. MLA-7679. At about 10.15 p.m. when they reached Bus Stop of Manda Khel, a spy information was given to them that two absconders, namely, Atta Muhammad and Abdul Razzaq, who were the accused in Case FIR No. 85/2000, registered on 3.6.2000 at Police Station Kamsar Mashani, District Mianwali under Section 302/34 PPC were present at the Dera of petitioner and if a raid was conducted they could be arrested. Thereafter on the same day, at 12.30 p.m. a raid was conducted at the Dera of petitioner who was sitting on a cot armed with a .12 bore pistol. They were encircled and enquired loudly about the presence of Atta Muhammad and Abdul Razzaq absconders. Petitioner told that both of them had gone away. Complainant party directed him to hand over his pistol to them but he refused. In the meanwhile deceased Khaliq Dad, ASI tried to overpower petitioner whereupon he fired a shot at him which hit on this chest towards the left side who fell down and died at the spot.
On conclusion of investigation, petitioner was sent up to the Court of Special Judge, Anti-Terrorism, Sargodha, to face trial. A charge under Sections 302/353/186/212 PPC and Section 7 of the Anti-Terrosim Act, 1997 was framed against petitioner, to which he pleaded not guilty and claimed trial.
Prosecution examined eight witnesses in order to prove its case.
On autopsy, Dr. Mehr Khan, Medical Officer DHQ Hospital, Mianwali (PW-1) found the following injury on the person of deceased:
"An entry wound of fire-arm 3 cm x 21/2 cm. Over the front of left chest, just over the nipple, with blackening around and burnt margins."
"Atta Muhammad and Abdul Razzaq against whom a case under Section 302 PPC was allegedly registered are not even known to me. Neither the FIR nor any other documentary evidence nor oral evidence had been produced by the prosecution to substantiate the motive against me as I had no relation with the aforesaid accused. So the question of their arrival at my Dera does not arise. On 30.7.2000 in the early dark hours of the morning the people of the vicinity informed the local police about killing of deceased who was laying unattended in the Mongi crop. The Police reached there. They enquired from me about the death of the deceased. My reply infuriated the police. They took me to police station and got me involved in this case. I never committed the murder of Khaliq Dad. I never possessed any illicit arms. I am innocent. Khalid Dad deceased was not a man of goods reputation. He met this death under some mysterious circumstances."
He neither examined himself on Oath as required under Section 340(2) Cr.P.C. Nor led any evidence in defence., 8. On the conclusion of trial, petitioner was convicted under Section 302(b) PPC and sentenced to death. He was also directed to pay Rs. 1,00,000/- as compensation to the legal heirs of the deceased or in default thereof to further suffer six months S.I. in case of non-payment, the amount of compensation shall be recoverable as arrears of land revenue. He was also convicted under Section 7 of the Anti-Terrorism Act, 1997 and sentenced to death. He was furthered convicted under Section 353 PPC and sentenced two years R.I.
Being aggrieved, petitioner challenged the judgment in appeal before learned Lahore High Court, Lahore which, was dismissed vide impugned judgment.
We have heard Syed Ali Hassan Gilani, learned ASC for petitioner and have gone through the record and the proceedings of the case in minute particulars.
It is mainly contended by the learned counsel for petitioner that the impugned judgment is erroneous, untenable in law, unjust and is based upon conjectures and surmises. He maintained that the ocular evidence is contradicted by the medical evidence and suffers from material discrepancies. He pointed out that the case of the prosecution is based on interested and inimical evidence, as such, it requires independent corroboration which is lacking in this case. According to him it was an unseen incident and there is no independent witnesses to substantiate the case. He contended that the ocular evidence furnished by the prosecution is consisting of police officials and no independent witness has been cited and therefore they are interested witnesses and their testimony is not free of doubt and should not be accepted without any independent corroboration.
The ocular straightforward and consistent testimony furnished by complainant Muhammad Anwar Constable (PW-5) and Muhammad Amir (PW-6) was found to be credit worthy by the trial Court as well as the First Appellate Court. Being a policeman, there is no bar to accept his testimony. His evidence should be accepted like other prosecution witnesses and if it fulfils and such conditions which are necessary for accepting and believing a witness, it cannot be discarded. There is a growing tendency, as has been observed in several judgments of the superior Courts, that public neither voluntaries to become witness nor the eye-witnesses come forward to help the investigation. Such reluctance on the part of the general public may be due to various reasons including the fear from persons of impeachable and dubious character who are dangerous, desperate and revengeful. It has become a common feature which can be noticed that in cases of dacoity, kidnapping for ransom, recovery of big hauls of heroin drugs, and prohibited arms, the eye-witnesses prefer either to avoid or refuse to testify anything due to fear and risk to personal safety. These are some of the explainable factors and circumstances which may justify acceptance of testimony of Police Officer which otherwise does not suffer from infirmity. There appears to be no inherent defect or material lacuna in the evidence of both the witnesses whose presence at the site has been established beyond any reasonable shadow of doubt. The prosecution has fully proved its case by producing cogent evidence to the extent that it was petitioner who fired at the deceased. Though the witnesses were cross examined yet their evidence was not shattered at all. Both the eye-witnesses have categorically stated in their statements that the deceased sustained fire-arm injury on his chest. The callous and brutal manner in which petitioner acted in this case and caused fatal fire-arm injury, in our view, does not justify mitigation of sentence. In the even of proof of charge of qatl-e-amd normal penalty under the law is death and extenuating circumstances must be shown for taking a lenient view and for the award of lessor penalty, which do not appear to exist on the face of record. The learned counsel for petitioner has failed to point out any illegality or irregularity in the impugned judgment to warrant interference by this Court. The evidence of the police officials the natural witnesses has been believed by the two Courts below, therefore, we are not inclined to reappraise it as on the face of it, it does not seem to suffer from any infirmity.
For what has been stated above, we do not find any reason to interfere with the concurrent findings of two Courts below. Accordingly, the petition being devoid of force is dismissed and leave to appeal refused.
(A.A.) Leave refused.
PLJ 2006 SC 220
[Appellate Jurisdiction]
Present : Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ.
NAVEED AHMAD MALIK--Petitioner
versus
DISTRICT OFFICER (REVENUE)/NOTIFIED OFFICER, DISTRICT COURTS, LAHORE and 22 others--Respondents
Civil Petition No. 2713 of 2004, decided on 16.2.2005.
(On appeal from the judgment dated 18.11.2004 passed by Lahore High Court, Lahore, passed in WP 29-R/04)
Constitution of Pakistan, 1973--
----Art. 185(3)--Writ petition against order of Notified Officer--Maintainability of--Property was purchased by respondents--Rehabilitation Authorities took it over due to evacuee charge--Charge was satisfied by purchasers--D.S.C. considering it as an evacuee property transferred its portion to petitioner under Settlement Scheme--After remand, Notified Officer dismissed the contention of petitioner--Writ petition was also dismissed--Held: Conclusion of Notification Officer was quite in accordance with law as property had never been treated as an evacuee property--Rehabilitation department due to evacuee interest resumed it but on payment of mortgage money and satisfaction of evacuee encumbrance it was redeemed and so was no more be treated as an evacuee property--Settlement & Rehabilitation department did not challenge the order of Notified Officer where as petitioner sought its transfer as being informer under settlement laws--Notified Officer after holding a detailed enquiry rightly concluded that property had never been declared as an evacuee property at any stage--Writ petition was not maintainable and so was rightly dismissed by High Court--Leave refused.
[Pp. 221, 224 & 225] A, B, C & D
Ch. Qadir Bakhsh, Sr. ASC and Mr. Ejaz Muhammad Khan, AOR for Petitioner.
Mr. Amir Alam Khan, ASC for Respondents Nos. 4-5.
Mr. Rafiq Javed Butt, ASC for Respondents Nos. 14-23.
Date of hearing : 16.2.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 185(3) of the Constitution has been directed against the judgment dated 18.11.2004 passed by the Lahore High Court, Lahore, in a Constitution petition arising out of the order passed by District Officer (Revenue) exercising the powers of Notified Officer, Lahore under Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, by virtue of which the property Bearing No. S-85-R-7/9 commonly known as Cooper Hostel situated in Chauburji Chowk, Bahawalpur Road, Lahore, was declared non-evacuee.
"In view of the submissions and statements made by the learned counsel for the parties that the parties were not given due opportunity of hearing and were not allowed to produce evidence in support of their contentions, thereby they were condemned unheard which resulted in the miscarriage of justice, consequently the impugned orders dated 24.12.1986 and dated 7.3.1996 passed by the Additional Deputy Commissioner (General) Lahore/Notified Officer and by the Lahore High Court respectively, except the finding with regard to portion of land from disputed land transferred by settlement authorities to late Malik Ghualm Ahmad succeeded by Malik Naved Ahmad, are set aside and the case is remanded to Notified Officer/Additional Deputy Commissioner (General) Lahore with the directions to dispose of the matter with regard to the remaining disputed land within three months from the date of receipt of this order in terms of formulated points hereinafter mentioned and the parties would be at liberty to produce the evidence within one month, if necessary, the matter may be heard on day-to-day basis. Following points are formulated for the Notified Officer who would decide and dispose of the case in accordance with law:--
(i) What is the location and situation of the property in dispute for the purpose of its market value?
(ii) What was the property which came to the share of judgment-debtor after the partition of the entire trust property and was the same liable to be attached, and whether before the attachment the requirements of law were complied with an whether the objections of the judgment-debtors to the attachment and sale through auction were legally and authorizedly withdrawn and disposed of?
(iii) Which landed property was sold though auction and whether the sale through auction was made in accordance with law, if not, what would be its effect?
"(vi) What was the evacuee encumbrances/charges/interest over the property of the judgment-debtors and whether the amount of evacuee interest/encumbrances and sale consideration of auctioned land could have been satisfied by making payment of the same through the compensation book?
(v) Whether the auction purchaser acquired any right, title or interest in the property claimed by him under the law and whether the subsequent purchasers/transferees viz Haji Muhammad Yusuf and others acquired any right, title or interest in the disputed property under the Law?
(vi) Whether the sale certificate and subsequent amendment made therein were made and obtained by fraud, forgery and mis-presentation?"
"(vi) What was the evacuee encumbrances/charges/interest over the property of the judgment-debtors and whether the amount of evacuee interest/encumbrances and sale consideration of auctioned land could have been satisfied by making payment of the same through the compensation book?
The evacuee encumbrances/charges/interest on the property was determined to be Rs. 83000/- by His Lordship Mr. Justice Sajjad Ahmad Jan, Judge of Lahore High Court/the then Custodian of Evacuee Property vide order dated 19.8.1961, which was adjusted from the deferred payment of Compensation No. 2265441 of Haji Muhammad Yousaf and clearance certificate was issued by Deputy Settlement Commissioner on 28.8.1963. In pursuance of the same, a letter dated 2.11.1963 was issued by the Settlement Department declaring the property as non-evacuee.
(v) Whether the auction purchaser acquired any right, title or interest in the property claimed by him under the law and whether the subsequent purchasers/ transferees viz Haji Muhammad Yusuf and others acquired any right, title or interest in the disputed property under the Law?
As per documents placed on file, the land in question bearing Khasra Nos. 6747, 6749, 6750, 6746, 6751 & 6752 measuring 19 kanals, 19 marlas and 154 Sq.ft. Having been auctioned on 12.7.1945 by the Court, Haji Muhammad Ismail, the auction purchaser, on payment of Rs. 48000/-, in cash became absolute owner on the date of auction i.e. 16.7.1946. Haji Muhammad Yousaf is the subsequent purchaser who entered into an agreement with Haji Muhammad Ismail (His Samdhi) and acquired title of the property under the law.
(vi) Whether the sale certificate and subsequent amendment made therein were made and obtained by fraud, forgery and mis-presentation?"
The question that whether the sale certificate and subsequent amendments made therein were made and obtained by fraud, forgery and misrepresentation can only be determined by the successor-in-office of the civil Court which issued the sale certificate in proceedings under Section 12(2) CPC. Even if for the sake of arguments, the sale certificate is a forged document, the aggrieved party was entitled to file a suit for cancellation of document under Section 39 Specific Relief Act, in the Civil Court, as the person in whose favour it was issued and his successor-in-interest acquired valuable rights in the disputed property on the basis of it. This is the only available remedy as the criminal proceedings on the allegation of preparation of forged document already stand abated due to the death of the accused person. Hence, the document is still in field, which generates valuable rights and District Officer (Revenue)/Notified Officer has no jurisdiction to declare that the sale certificate which has operated to create civil rights, was obtained by fraud, forgery and misrepresentation before the Civil Court, Moreover, the Court sale certificate is more than 30 years old and presumption of truth is attached with it as per Article 100 Qanun-e-Shahadat.
As per documents available on file, the corrections appear to have been made on the Court sale certificate by the orders of the then Sub-Judge Ist Class Lahore dated 15.8.1952 under this signatures & stamp."
The petitioner filed a writ petition challenging the vires of the above of Notified Officer which was dismissed by a learned Judge in chambers in the High Court with the observation that the petitioner being not an aggrieved person in terms of Article 199 of the Constitution of Islamic Republic of Pakistan has no locus standi to maintain the writ petition in the matter.
Learned counsel for the petitioner has contended that in consequence to the application moved by Malik Ghulam Ahmed, father of the petitioner, the property was resumed by the rehabilitation authorities and in the subsequent litigation, said Ghulam Ahmed and auction purchaser Muhammad Ibrahim, predecessor-in-interest of Respondent No. 2, were the contesting parties before the settlement authorities, therefore petitioner had locus standi to file the writ petition. The grievance of the petitioner was that on the information of his father, the hidden evacuee property was resumed by the rehabilitation authorities, therefore, he was entitled for the transfer of the entire property and having direct claim for transfer of the property, was an aggrieved person in terms of Article 199 of the Constitution. Learned counsel argued that the learned Judge in the High Court instead of attending the real controversy regarding the evacuee character of the property and deciding the question relating to the claim of the parties in the property, dismissed the writ petition on technical ground. Learned counsel for the respondents-caveators, on the other hand, argued that initially the property was leased out by Muhammad Ibrahim, predecessor-in-interest of respondents to Malik Ghulam Ahmed, father of the petitioner which was at one stag, resumed by the rehabilitation department treating it as evacuee property but on satisfaction of evacuee encumbrance, it acquired the status of non-evacuee property. However the father of petitioner is connivance with the settlement staff, managed the transfer of an area of 5 kanals 2 marlas under rehabilitation Scheme No. VI. The learned counsel has argued that no redemption of the mortgage, the custodian declared the property free from all evacuee encumbrances and thereafter, it was never treated as an evacuee property and the High Court neither could give the declaration sought by the petitioner nor he had any locus standi to maintain the writ petition against the order of Notified Officer.
We have heard the learned counsel for the parties at length and also perused the relevant record with their assistance. The controversy involved in the matter related to the character of property which was initially taken over by the rehabilitation authorities in 1954 but the custodian, without declaring it evacuee property, having determined its character as mortgaged property, redeemed the mortgage on the payment of mortgage money and treated it as non-evacuee property. In consequence thereto, except an are of 5 kanals and 2 marlas already transferred to the father of petitioner, the remaining property was excluded from the purview of evacuee laws. The Notified Officer in the light of points formulated in the judgment of this Court concluded in his order, as under:--
"In view of the above discussion, the petitioner Mr. Naveed Ahmad Malik could not establish that the sale of property in question in favour of Haji Muhammad Ismail and subsequently in favour of Haji Muhammad Yousaf was as a result of forged and fake Court sale certificate. It has been further proved beyond any shadow of doubt that the property in dispute is legal and free from any evacuee encumbrances and hence non-evacuee as already mentioned in answer to the points formulated by the August Supreme Court of Pakistan."
The careful examination of the matter would show that the conclusion drawn by the Notified Officer was quite in accordance with law as the property was never treated as an evacuee property and we having considered the matter in the light of nature of dispute, have not been able to find out any substance in the contention riased by the learned counsel for the petitioner that the property involving evacuee interest, was liable to be transferred under evacuee laws. The rehabilitation department due to the evacuee interest, resumed the property but we find that on the payment of mortgage money and satisfaction of the evacuee encumbrance the mortgage was redeemed and in consequence thereto, the property was no more be treated as evacuee property. The settlement and rehabilitation department having not challenge the order of notified officer conceded its non-evacuee character whereas the petitioner sought its transfer as informer under settlement Laws and we in the light of the facts in the background, are of the considered view that the High Court could not undertake an exercise of holding factual inquiry to ascertain the character of property and changed its status of non-evacuee by declaring it an evacuee property. The Notified Officer after holding a detail inquiry, concluded that the property was not declared as an evacuee property at any stage and learned counsel for the petitioner has not been able to show us that the finding arrived at by the Notified Officer regarding non-evacuee character of property, was suffering from misreading or non-reading of evidence or the conclusion drawn by him was contrary to law and fats of the case. We having considered the matter in detail, have not been able to find out any substance in this petition and notwithstanding the objection of the locus standi of the petitioner to maintain the writ petition before the High Court, the petition had no case even on merits calling for interference of the High Court.
In the light of foregoing discussion, we do not find any substance in this petition which is accordingly, dismissed. Leave is refused.
(J.R.) Leave refused.
PLJ 2006 SC 226
[Appellate Jurisdiction]
Present : Iftikhar Muhammad Chauhdry, C.J., M. Javed buttar and Syed Jamshed Ali, JJ
MUHAMMAD JAMIL--Petitioner
versus
MUNAWAR KHAN & others--Respondents
Civil Petition No. 2483 of 2005, decided on 30.9.2005.
(On appeal from the order passed by Peshawar High Court, Peshawar in W.P. No. 1624/2005 dated 23.9.2005).
N.W.F.P. Local Government (Conduct of Elections) Rules 2005--
----Rule 12(4) read with Rule 14(3)(4)--Non-disclosure of assets--Rejection of nomination papers--Held: A candidate was required to fill up Form XIX, meant for declaration of his assets and it was to be filed with nomination papers on or before the date of filing nomination papers--Nomination papers would be subjected to scrutiny by Returning Officer who was empowered to reject the same on conducting summary enquiry but he had no jurisdiction to allow a candidate to submit further explanation of the assets owned by him during the process of scrutiny--Such concession if extended to a candidate, specifically after expiry of due date would tantamount to allow him an opportunity to make up deficiency in submitting nomination papers--Respondent, chief executive, having major share in the Bannu Sugar Mills did not disclose in his original declaration form, the shares owned by him nor its yearly income without any justification--Nomination papers were rightly rejected by District Returning Officer--Appeal was allowed and order of DRO was restored.
[Pp. 228, 229 & 230] A, B, C & D
PLJ 1996 Q 9; 2002 SCMR 398 ref.
Mr. Wasim Sajjad, Sr. ASC Mr. Abdul Latif Yousafzai, ASC and Mr. M.S. Khattak AOR, for Petitioner.
Qazi Muhammad Anwar and Sr. ASC Mr. Mehr Khan Malik, AOR for Respondents.
Date of hearing : 30.9.2005.
Judgment
Iftikhar Muhammad Chaudhry, C.J.--This petition has been filed for leave to appeal against the judgment dated 23.9.2005 passed by Peshawar High Court, Peshawar.
Precisely stating the facts of the case are that Respondent No. 1 being the candidate for the office of District Nazim, Lakki Marwat, submitted his nomination papers alongwith form XIX under Rule 12(4) of the N.W.f.P. Local Government (Conduct of Elections) Rules 2005 (herein after referred to as the Rules of 2005) meant for declaration of assets. On the day of scrutiny i.e. 16.9.2005, the Returning Officer obtained a fresh form of declaration containing details of assets owned by him. The nomination papers submitted by Respondent No. 1 were accepted vide order dated 16.9.2005.
Petitioner, Muhammad Jamil Khan being a voter presented appeal before District Returning Officer which was allowed on 29.9.2005. Relevant para therefrom is reproduced below:--
"The previous Form-19 filed with the nomination papers was considered incomplete by the Returning Officer only on the ground that the candidate/respondent had not stated the income of Bannu Sugar Mill mentioned at S. No. 4 of the form, and the position of subsequently filed from -19 is the same. In Column No. 7 of the subsequently filed declaration form-19, submitted by respondent, it is stated that
Strange enough that the Bannu Sugar Mill is a limited company governed by the Companies Ordinance, but since 1998 till 2004, as per the opinion of respondent the income and expenditure account is not recorded. It is not only against the crux of Sections 230 and 233 of the Companies Ordinance, but in my humble opinion it also amounts to concealment of income and assets. Learned counsel for the petitioner/appellant during the course of arguments produced the certified copy pertaining to share of respondent at Bannu Sugar Mill, which is self-explanatory, wherein respondent is shown to be the owner of 393, 517 shares, but these share are not specifically stated in the relevant column, what to say about the annual income of the Sugar Mill.
For my above discussion, I am guided by the principles as laid down by the August Supreme Court of Pakistan in the judgment reported as 2002 SCMR Page 398, 2001, CLC. P-911, 2002 MLD P-36."
Resultantly, I have left with no option but to allow the present appeal. The nomination papers filed by Munawar Khan stands rejected.
Respondent preferred constitution petition before Peshawar High Court which has been allowed vide impugned judgment dated 23.9.2005.
Learned counsel for petitioner stated that:--
(i) The returning Officer had no jurisdiction/authority to provide another opportunity to respondent to submit details of his assets after the expiry of date of filing of nomination paper.
(ii) The Respondent No. 1 is owner of 3,93,517/- share in Bannu Sugar Mills but no declaration was made in this behalf in declaration form submitted alongwith nomination papers. In as much as in second declaration from as well, details were not given by him. Although it was obligatory upon him to disclose the number of shares owned by him.
(iii) The Respondent No. 1 also failed to disclose net annual income from the business of Bannu Sugar Mills to the extent of his shares as per column meant for this purpose.
(a) The form of declaration of assets submitted by the respondent alongwith the nomination papers contained full description of the ownership of the petitioner in the Bannu Sugar Mills, therefore, second from of declaration of assets obtained by the Returning Officer on the day of scrutiny may be ignored. The respondent had no obligation to disclose number of shares owned by him, in the mills, in view of the fact that he has already disclosed that he is its owner.
(b) To ascertains net annual income of Respondent No 1 from Sugar Mill the audit report being prepared from time to time, which can be seen by the persons who wanted to raise objections on the income of the petitioner, as such non-disclosing of annual income by Respondent No. 1 from Sugar Mill against his shares is not important therefore for this reason he can not to be disqualified to contest election.
"As a general proposition, the rule with respect to statutory directions to individuals is the opposite of that which obtains with respect of public officers. When a statute directs things to be done by a private person within specified time and makes his rights dependent on proper performance thereof, unless the failure to perform in time may injure the public or individuals, the statute is mandatory. When an individual is the person not complying, he has no grounds for complaint. Under statutes of procedure, failure to complete required steps within the time specified is fatal to the case.".
Thus it is held that Returning Officer had no jurisdiction to procure fresh Declaration From XIX from Respondent No. 1, therefore for all intends and purposes it is ought to be kept out of consideration.
In instant case in original declaration Form XIX submitted alongwith the nomination appears, Respondent No. 1 though had shown himself to be the owner of Bannu Sugar Mills but as for as his shares are concerned those were not disclosed at all contrary to Rule 12(4) of the Rules. It is a fact that Respondent No. 1 has admitted before District Returning Officer/Appellate Authority that he is owner of 3,93,517 shares in "Bannu Sugar Mills". This fact has been verified from certificate issued by the Registrar Companies. It is equally important to note that in the column meant for the value of the property in respect of Bannu Sugar Mills Respondent No. 1 disclosed an amount of rupees 13 crore and 39 lac approximately but without disclosing income of each year. It is interesting to note that as far as the column meant for the net yearly income is concerned, nothing was mentioned therein except the year of 1998. One, failed to understand that a person who has got a major share and is stated to be the Chief Executive of the Bannu Sugar Mills fails to disclose his annual income without any justification. Thus no other inference can be drawn except that Respondent No. 1 concealed his income arising from the share owned by him without any justification therefore his nomination papers were liable to be rejected under Rule 14(3)(iii) of the Rules. To substantiate the argument reference may be made to Abbas Khan and another versus Appellate Authority, District & Sessions Judge, Attock and others (2002 SCMR 398).
Thus it is held that under the circumstance the District Returning Officer/Appellate Authority in appeal rightly intervened in the order of the Returning Officer.
For the foregoing reasons petition is allowed and order impugned herein is set aside as a result whereof the order of the District Returning Officer/Appellate Authority dated 20.9.2005 is restored. Election Commission of Pakistan is directed to delete the name of the Respondent No. 1 from the list of candidates contesting election for the office of District Nazim, Lakki Marwat.
Petition is converted into appeal and disposal of accordingly leaving the parties to bear their own costs.
(J.R.) Appeal allowed.
PLJ 2006 SC 230
[Appellate Jurisdiction]
Present : Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ.
ABDUL MATEEN and others--Petitioners
versus
Mst. MUSTAKHIA--Respondent
Civil Appeal No. 660 of 2000, decided on 11.2.2005.
(On appeal from the judgment dated 27.11.,1998 passed by Peshawar High Court, Peshawar, in CR 375/1994).
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Concurrent finding--Held : Gift mutation was attested by revenue officer at a public place--No evidence was brought by appellants about the invalidity of gift--Suit was filed after death of donor without any explanation as to why gift was not challenged in his life time--Donor and donee being husband and wife, were living together and the management of agricultural land, the subject matter, of gift would be deemed to be in her possession under gift--No substance about elements of offer and acceptance of gift or delivering of possession of land found missing in evidence--Appellants were under heavy burden to prove that gift was not genuine and valid--No legal or factual defect pointed out in the validity of gift nor any misreading or non-reading was found in the concurrent judgments--Appeal dismissed.
[Pp. 233 & 234] A, B, F
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional Jurisdiction--Concurrent finding--Scope--Held: Concurrent findings on a question of fact or mixed question of law & fact if was found suffering from misreading or non-reading of evidence or based on no evidence or inadmissible evidence, High Court should correct the error under its revisional jurisdiction but in absence of such defect the interference of High Court would amount to improper exercise of such jurisdiction. [P. 234] C
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional Jurisdiction--Scope--Held:--Re-examination and re-appraisal of evidence was not permissible in revisional jurisdiction even if conclusion drawn by subordinate Courts on question of fact was erroneous. [P. 234] D
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional Jurisdiction--Scope--Held: Revisional power of High Court was exercised for correcting an error committed by subordinate Courts and mere erroneous decision would not call for interference, unless it was established that decision had been based on no evidence, inadmissible evidence or it was perverse so as to cause grave injustice.
[P. 234] E
2003 SCMR 41; 2003 SCMR 286 ref.
Mr. Abdul Samad Khan, ASC for Appellants.
Mian Younis Shah, Sr. ASC for Respondent.
Dates of hearing : 10, 11.2.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court, has been directed against the judgment dated 6.11.1995 passed by a learned single Judge of Peshawar High Court, Peshawar, in a civil revision arising out of a civil suit.
Abdul Sami, husband of Mst. Mustakhia, respondent herein made a gift of his agricultural land in favour of his wife vide gift Mutations Nos. 11552 and 11553 dated 2.5.1973. The appellants, after death of Abdul Sami, filed a civil suit seeking declaration that they being collaterals of Abdul Smai, who died issueless, were entitled to get share in the suit land and gift mutations were void and ineffective to their rights. The suit was contested by the respondent and was ultimately dismissed by the learned Senior Civil Judge, Swabi, vide judgment dated 17.2.1992. The appeal filed by the appellants against the judgment and decree passed by the trial Court was also dismissed by an Additional District Judge, Swabi, vide judgment dated 11.4.1994. The appellants invoking the revisional jurisdiction of the Peshawar High Court, assailed the correctness of concurrent findings of two Courts on the controversial question of facts and a learned Judge in chambers of the Peshawar High Court, having made detailed scrutiny of the evidence brought by the parties on record dismissed the civil revision.
The validity of gift was question mainly on the ground that the donor was not in a position to make a gift as he was suffering from depression and obsessional neurosis and the mutation of gift was fake which would not create title in favour of respondent. The appellants pleaded that there was no evidence, oral or documentary in support of gift so much so, the transaction gift was not incorporated in the roznamcha of patwari and donor was also not present at the time of attestation of mutation, therefore, no presumption in favour of existence of a valid gift could be raised and in any case, the gift of immovable property, without delivery of possession, would not be treated as a valid gift.
The case of respondent, on the other hand was that donor was not suffering from any ailment rather being issueless, willingly gifted the land to his wife and the concurrent findings of the two Courts on the question of fact, were not suffering from any misreading or non-reading of evidence to be interfered.
The learned Judge in the High Court, having considered the matter in the light of evidence brought by the parties on record entirely adhering to the finding of the two Courts on the question of validity of gift did not consider it a fit case for interference in the revisional jurisdiction.
Leave was granted in the present appeal to consider the following questions:--
"(i) Whether late Abdul Sami was of sound mind and could gift the land in favour of the donee and whether three essential conditions of gift were complied with ?
(ii) Whether the donee has proved the validity of the gift in her favour, for, Gul Sultan the marginal witness of the dispute mutations (PW-6) has denied the attestation of gift mutations in her favour? and
(iii) Whether the High Court failed to exercise its revisional jurisdiction properly by misreading and non-reading of evidence?"
We having gone through the above judgments find that the facts of the present case are entirely different to that of the above referred two cases. In the first case, it was held that the gift was not proved through cogent and convincing evidence whereas in the second case, validity of gift was doubted on the ground that it having been made at fag end of life of the donor i.e. only 14 days before his death, would not be considered genuine.
Learned counsel for the respondents on the other hand, has contended that in the present case, donor was issueless and there was no evidence on the record to show that appellants or any other member of the family of donor or his relative, during his life time rendered any service to him rather he had the donee were entirely dependants of each other, therefore, in these circumstances, it was natural for the donor to make gift of his land to her wife due to the love and affection. Learned counsel forcefully argued that the appellants having the knowledge of the gift and its true character, did not challenge its genuineness and validity during the life time of donor and filed the suit only after his death to defeat the right of donee under the gift which was not filed in good faith and was hopelessly barred by time.
The gift mutation was attested by the Revenue Officer on 21.5.1973 at a public place and the appellants either could bring any convincing and reliable evidence in proof of lack of knowledge nor have been able to establish the invalidity of gift, therefore, the genuineness of gift could not be doubted merely on the basis of oral assertion. The appellants also have not been able to offer any explanation that why they, during the life time of the donor, have no questioned the genuineness of the gift mutation before the revenue authorities or challenged the validity of gift before the Civil Court and filed the civil suit only after his death. Be that as it may since the question of limitation was not pressed in the civil revision before the High Court, therefore, we without going into the said question, have found no substance in the assertion that appellants had no knowledge of the gift during the life time of donor. The contention that there was no evidence of offer and acceptance of gift and delivery of possession to constitute a valid gift, also has no substance as the learned counsel has not been able to satisfy us that the elements of offer and acceptance of gift or delivery of possession of land to establish a valid gift were missing in the present case. The donor and the donee being husband and wife were living together and the management of the agricultural land, subject-matter of gift, would certainly be under the control of the donor as the donee could not personally engage herself in the cultivation of land but in law, she would be deemed to be in the possession of land under the gift. Learned counsel for the appellant without pointing out any misreading or non-reading of evidence by the Court of first instance or the appellate Court, argued that in the present case a pure question of law relating to the validity of gift, was involved therefore, it was duty of the High Court to examine the correctness of the concurrent findings of the two Courts on this question of law in exercise of its revisional jurisdiction. There is no cavil to the proposition that the concurrent finding on a question of fact or mixed question of law and facts, if is found suffering from misreading or non-reading of evidence or based on no evidence or inadmissible evidence, the High Court in exercise of the revisional jurisdiction should correct the error committed by the subordinate Courts but in absence of any defect of misreading or non-reading of evidence in the concurrent finding of two Courts on such question, the interference of the High Court in the civil revision would amount to improper exercise of revisional jurisdiction. This is settled law that re-examination and reappraisal of evidence is not permissible in revisional jurisdiction even if conclusion drawn by the subordinate Courts on a question of fact was erroneous. The revisional power of High Court is exercised for correcting an error committed by the subordinate Courts in exercise of their jurisdiction and mere erroneous decision would not call for interference unless it is established that the decision was based on no evidence or the evidence relied upon was inadmissible or the decision was perverse so as to cause grave injustice. This is settled law that the High Court in revisional jurisdiction cannot upset the concurrent findings of fact by means of re-examination of evidence and in the present case, the perusal of record would not show any mis-reading or non-reading of evidence brought on the record by the parties or suggest that the Court of first instance and the appellate Court had drawn wrong conclusion from the evidence calling for interference of the High Court in its revisional jurisdictional.
The appellants having disputed the validity of gift, were under heavy burden to prove that gift was not genuine and valid or it was suffering from any other legal or factual defect or the concurrent finding of the Courts on the question of existence of valid gift was the result of mis-reading or non-reading of evidence.
In the light of foregoing discussion, we find no substance in this appeal and same is accordingly dismissed. There will be no order as to costs.
(J.R.) Appeal dismissed.
PLJ 2006 SC 235
[Appellate Jurisdiction]
Present : Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ
MUHAMMAD IDRIS KHAN, EX-SENIORLITIGATION ASSISTANT, PAKISTAN RAILWAYS, KARACHI--Petitioner
versus
SECRETARY/CHAIRMAN, MINISTRY OF RAILWAYS, ISLAMABAD and 5 others--Respondents
Civil Petition No. 2078 of 2004, decided 20.5.2005.
(On appeal from the judgment of Federal Service Tribunal, dated 3.8.2004 passed in Appeal No. 259(K)CS/2001).
Constitution of Pakistan, 1973--
----Art. 212(3)--Government Servants (E&D) Rules 1973, R. 2(4)--Misconduct--Dismissal from service--Appellant wrote a letter containing allegations of corruption & embezzlement of Government funds by senior officers to the minister--Record did not show that said letter had been written in the course of official business or as a private letter--It was certainly an act of indiscipline which could not be approved and tolerated but appellants were awarded a major penalty of dismissal from service without proper inquiry--There was no extraordinary circumstances calling for dispensation of inquiry and summary--Proceedings as it would suggest the element of bias & unfair treatment at least in the matter of quantum of sentence--Appeal was partly allowed and penalty of dismissal from service was modified into censure, with a direction to reinstate appellants with all back benefits. [Pp. 237 & 238] A, B, C & D
Dr. Babar Awan, ASC for Petitioner.
Mr. M. Ishaq Khan, ASC for Respondents.
Date of hearing : 20.5.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 212(3) of the Constitution of Islamic Republic of Pakistan has been directed against the judgment dated 3.8.2004 passed by Federal Service Tribunal whereby the appeal filed by the petitioner against his dismissal from service was dismissed.
Whereas you make direct correspondence with Honourable Federal Minister for Communications and Railways and sent him a letter dated 28.3.2001 (copy enclosed).
And whereas your above said action amounts to conduct prejudice to good order and service discipline and as such falls within the ambit of "misconduct" as defined in Removal from Service (Special Powers) Ordinance, 2000 (as amended by Ordinance No. V of 2001).
And whereas your above said action is violative of Rules 18 and 19 of the Government Servants Conduct Rules, 1964 and Government Instructions issued by Establishment Division as 21.6.1997 and circulated by General Manager/Personnel vide his Letter No. 324-E/O/IV(L) (E. Policy dated 16.5.1997 and also violative of General Manager/Personnel Letter No. 831-E/689-Double Policy dated 4.12.1999 and as such tantamount to conduct prejudicial to good order and service discipline which clearly falls within the definition of misconduct as defined by Removal from Service (Special Powers) Ordinance, 2000 (as amended by holding an enquiry).
And whereas being in possession of sufficient documentary evidence against you there is no need of holding an enquiry.
Therefore, you are hereby called upon to show cause as to why you should not be dismissed from service for being guilty of the above referred misconduct as envisaged under Removal from Service (Special Powers) Ordinance, 2000."
The competent authority having not found the reply of the petitioner to the show-cause notice satisfactory, while dispensing with the requirement of holding the regular inquiry and providing him an opportunity of personal hearing, dismissed him from service. The petitioner after exhausted the remedy of departmental appeal, filed an appeal before the Federal Service Tribunal but the Tribunal dismissed the appeal with the observation that sending of the complaints against the senior officers to the Minister was an act of misconduct.
The learned counsel for the petitioner has contended that the letter allegedly addressed by the petitioner to the Federal Minister may not constitute an act of misconduct in terms of Section 2(b) of Civil Servants Act, 1973, and in any case the major penalty of dismissal from service without a proper inquiry was mala fide and violative of the principles of natural justice as the petitioner was not given a fair opportunity of hearing to explain his position. Learned counsel appearing on behalf of the respondents, on the other hand, submitted that since the petitioner has not as such denied the sending of letter in question to the Minister therefore there was no need of holding the formal inquiry into the matter.
The charge against the petitioner precisely was that he by sending the complaint directly to the Federal Minister against his senior officers committed an act which was prejudicial to good order and service discipline.
The `misconduct' under Section 2(4) of Government Servants (Efficiency & Discipline) Rules, 1973, has been defined as under:--
"misconduct" means conduct prejudicial to good order to service discipline on contrary to the Government Servants (Conduct) Rules, 1964 or unbecoming of an officer and a gentleman includes, any act on the part of a Government servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a Government servant;"
It is not clear from the record that letter in question was written by the petitioner to the minister in the course of official business or it was his private letter. The official correspondence is always made through proper channel as provided in Rules of Business but unofficial letters may not require the procedure of Rules of Business. However the letter in question containing certain allegations of corruption and embezzlement of Government funds by the officers named therein sent by the petitioner to the Minister was not proper and notwithstanding the correctness of the allegations contained therein, it was certainly an act of indiscipline which could not be approved and tolerated but we find that the petitioner was not dealt with fairly as he was awarded major penalty of dismissal from service without proper inquiry probably for the reasons that senior officers due to the letter in question, were annoyed with him, as a result of which, the requirement of formal inquiry was dispensed with. Be that as it may, the purpose of providing major and minor penalties in the service law was to give choice to the departmental authorities to determine the quantum of punishment in the light of nature of misconduct and the concerned authorities may in their discretion award major or minor penalty but this power must not be exercised in an unjust and arbitrary manner. It appears that the competent authority in the present case, instead of taking a lenient view in the interest of reformation of the petitioner, proceeding to follow the concept of deterrent punishment even for less serious charge. This is correct that departmental authorities may not be obliged to strictly follow the procedure of law in the manner as is absorbed by the judicial forums but still they must observe the general principles of law and act independently to ensure fair treatment. This is a settled law that except in special circumstances, a civil servant must not be awarded major penalty of dismissal from service without proper inquiry and providing him fair opportunity to explain his position whereas in the present case, there was no extraordinary circumstance calling for dispensation of iqnuiry and summary proceedings, therefore, the imposition of majorpenalty of dismissal from service without inquiry, would suggest the element of bias and unfair treatment at least in the matter of quantum of sentence.
In the light of foregoing discussion we are of the considered view that in the peculiar facts of the case and the kind of charge the minor penalty of censure would be sufficient to meet the ends of justice and consequently we while converting this petition into appeal, partly allow the same with modification of penalty of dismissal from service into censure and direct the reinstatement of the appellant in service from the date of his dismissal with all back benefits. There will be no order as to costs.
(J.R.) Appeal partly allowed.
PLJ 2006 SC 238
[Appellate Jurisdiction]
Present : Hamid Ali Mirza, Muhammad Nawaz Abbasi and Falak Sher, JJ.
MUHAMMAD IBRAHIM--Appellant
versus
PAKISTAN OIL SEED DEVELOPMENT BOARD and others--Respondents
Civil Appeal No. 85 of 2000, decided on 9.3.2005.
(On appeal from the judgment dated 10.6.1999 of the Federal Service Tribunal Islamabad passed in Appeal Nos. 871 and 873-R of 1999).
Federal Service Tribunal Act, 1973--
----S. 4, read with S. 2-A--Limitation Act (IX of 1908), S. 5--Dismissal from service--Appeal against--Condonation of delay--Held: Limitation for filing appeal would commence from the date of abatement of proceedings but in exceptional circumstances the delay in filing appeal could be condoned for a sufficient cause--High Court having lacked the jurisdiction, had not disposed of the writ petition soon after insertion of Section 2-A, within the period provided under the law for filing appeal--Appellant due to misunderstanding did not approach the tribunal prior to the disposal of writ petition--There were sufficient circumstances for condonation of delay--Appeal was allowed and case was remanded to the Tribunal for decision on merits. [Pp. 241 & 242] A, B, C, D, & E
1999 SCMR 92; 2000 SCMR 832; PLJ 2002 SC 501; 1999 SCMR 197 and 2003 SCMR 705 ref.
Appellant in person.
Mr. Nasir Saeed Sheikh, DAG, Raja Abdul Ghaffar, AOR for Respondents.
Date of hearing : 9.3.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court has been directed against the judgement dated 10.6.1999 passed by the Federal Service Tribunal, Islamabad in service appeal filed by the appellant against his dismissal from service. The appellant was a contract employee of Pakistan Oil Seed Development Board since August, 1995 and his contract of service was terminated vide order dated 28.8.1997 against which he filed a writ petition in the Lahore High Court but pending disposal of the writ petition, Section 2-A was inserted in the Federal Service Tribunals Act, 1973 w.e.f. 15.6.1997 and in consequence thereto, the High Court disposed of the writ petition as abated, vide order dated 8.4.1999. The appellant availing the remedy of appeal under Section 4 of the Service Tribunals Act, 1973 filed an appeal before the Federal Service Tribunal which was dismissed by the Tribunal vide judgment dated 10.6.1999 as bared by time.
"Whether the learned Tribunal was not justified to grant the plea of condonation of delay in the factual background of the case in the light of the observations made by this Court in the case of (1) Civil Petitions Nos. 483 and 685 of 1989 titled Lt. Col. (Rtd.) Muhammad Siddique v. Allah Iqbal Open University, Islamabad (decided on 16.12.1998), (2) Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others (1999 SCMR 92), (3) Civil Appeal No. 998 of 1999 titled Muhammad Yaqub v. Pakistan Petroleum Ltd and another decided on 20.12.1999 and (4) Ghulam Sarwar Bhutto v. Chief Secretary to Government of Sindh and others (2000 SCMR 104)."
The appellant while appearing in person has contended that Tribunal has not considered the question of limitation in an appropriate manner in the light of the law laid down by this Court on the subject.
In consequence to the insertion of Section 2-A in Service Tribunals Act, 1973, the employees of the Corporations, Bodies or Organizations established or controlled by the Federal Government acquired the status of civil servants for the limited purpose of availing the remedy of Appeal before the Federal Service Tribunal in respect of their terms and conditions of service and by virtue of Section 6 of the Federal Service Tribunals Act, 1973 , the cases of all such employees falling within the category mentioned therein pending before other forum stood abated. Section 6 ibid is read as under:
"6. Abatement of suits and other proceedings: All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith: Provided that any party to such a suit, appeal or application may, within ninety days of the [establishment of the appropriate Tribunal, prefer an appeal to it] in respect of any such matter which is in issue in such suit, appeal or application".
In the light of the above provision, all pending proceedings in the from of suits, appeals, applications, before any other forum or Constitutional petitions before the High Court stood abated from the date of insertion of Section 2-A in the statute and remedy of appeal in such cases would be available under Section 4 read with Section 6 of the Service Tribunals Act, 1973 as amended. The normal period for filing an appeal before the Tribunal under Section 6, supra, was 90 days from the date of insertion of Section 2-A in the statute and by virtue of Section 7 of the said Act, Sections 5 and 12 of the Limitation Act, 1908, would be applicable to such appeals and the appellant on the disposal of his writ petition by the High Court on 8.4.1999 filed appeal before the Tribunal with a delay of more than one year and five months seeking condonation of delay under Section 5 of the Limitation Act, 1908 on the ground that due to the confusion regarding the retrospective operation of Section 2-A ibid and the application of said provision to the writ petitions, he having under the bona fide impression that remedy of Appeal was not available to him, continued to pursue the remedy of writ petition in the High Court. This Court having considered the question of retrospective operation of Section 2-A of Service Tribunals Act, 1973 in Muhammad Afzal versus Karachi Electric Supply Corporation and 2 others (1999 SCMR 92) and Malik Mumtaz Ahmad and others versus Federal Service Tribunal and others (2000 SCMR 832) held that the service matters of employees falling within the ambit of Section 2-A pending before other forums prior to the insertion of above section in the statute, would be abated and in such cases, the remedy of Appeal would be available to them before the Tribunal. In Pakistan National Council of Ats versus Azimul Waqar and 2 others (PLJ 2002 SC 501) it was held that the party who remained ignorant of law or negligent and careless to pursue his remedy diligently and carefully cannot be given any concession in the matter of condonation of delay but in the present case, we find that appellant was not careless or negligent rather he having the bona fide impression that remedy of appeal was not available to him, continued to pursue the remedy of writ petition and immediately on its disposal, filed appeal before the Tribunal. In these circumstances, the delay in the filing of appeal would not be constitute an act of negligence and consequently, the Tribunal was required to consider the question of limitation in the light of the position explained above. This is correct that the limitation for filing appeal before the Tribunal would commence from the date of abetment of the proceedings but in exceptional circumstances, the delay in filing the appeal could be condoned under Section 5 of the Limitation Act, 1908, for a sufficient cause. The appellant having challenged the order of termination of his service before the High Court, has been pursuing the remedy of writ petition in good faith under the genuine impression that he could not avail the remedy of appeal and due to the confusion created in respect of retrospective operation of Section 2-A of Service Tribunals Act, 1973 he was prevented to file the appeal within the statutory period, therefore, in these circumstances, despite exercising due diligence and caution any person could be mislead and commit bona fide mistake of not availing the remedy of appeal pending disposal of writ petition. It would be seen theat the appellant was being represented by a counsel in the High Court but probably his counsel was also under the impression that in the given circumstance, the writ petition was the proper remedy and did not advise him to avail the remedy of appeal before the Tribunal. The High Court having lacked the jurisdiction in such matters, on the insertion of Section 2-A in the Service Tribunals Act, 1973, did not dispose of such cases soon after the change in law, so that the aggrieve persons could approach the Tribunal within the statutory period provided under the law. The inaction on the part of High Court for a considerable period, also created confusion in the matter.
The learned Deputy Attorney General has contended that the appellant had no case even on merits and since he was being represented by a senior counsel in the High Court, therefore, it could not be said that he had no knowledge of the change of law and in any case, the ignorance of law is not excuse to condone the delay. We agree with the learned DAG that in the normal circumstances, condonation of delay in such a case may not be possible but the circumstances due to which the appellant could not avail the remedy of appeal in the normal period, would not suggest that he was negligent in pursuing his remedy, therefore, it would be in the interest of justice to take a liberal view for condonation of delay in the filing of appeal before the Tribunal.
We having considered the matter in the light of law on the subject, find that on the insertion of Section 2-A in the Service Tribunals Act, 1973, the position in respect of the abatement of service matters pending before other forums and the retrospective operation of the above provision was not clear and the doubt was ultimately removed by this Court in the judgment referred above, therefore, the question of limitation was required to be considered in each case on the basis of its own facts. In the present case, as observed earlier, the appellant due to the misunderstanding, did not approach the Tribunal prior to the disposal of the writ petition by the High Court which would be a sufficient circumstance to bring the case within the ambit of Section 5 of the Limitation Act, 1908. It was observed by this Court in Muhammad Afzal versus Karachi Electric Supply Corporation and 2 others (1999 SCMR 92) in an identical case that the Tribunal if had proceeded in the matter with a little care, it must have attended the question of limitation in its true persecutive by taking a lenient view in the matter of condonation of delay. In the present case, the non-disposal of writ petition by an express order on its abatement by the High Court within the period provided under the law for filing appeal before the Tribunal would be an additional circumstance for condonation of delay. This Court in identical circumstances in Aftab Ahmad versus K.E.S.C. (1999 SCMR 197), Rehmatullah versus Postmaster General (2003 SCMR 705) has taken the view that instead of dismissing the appeals on the question of limitation the same should be decided on merits and we in the light of circumstances of this case, are of the view that the appellant was not negligent in pursuing his remedy as he filed the appeal before the Service Tribunal immediately on disposal of his writ petition by the High Court, therefore, the dismissal of the appeal as barred by time was not proper.
In the light of foregoing discussion, we allow this appeal set aside the impugned judgment and remand the case to the Tribunal for decision of the appeal on merits. There shall be no order as to costs.
(J.R.) Appeal allowed.
PLJ 2006 SC 242
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ.
PERVAIZ and another--Petitioners
versus
MUHAMMAD NAWAZ--Respondent
Civil Petitions Nos. 1368 & 1369 of 2004, decided on 6.7.2005.
(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, Rawalpindi dated 15.4.2004 passed in CR. 488-D & 489-D/2003 respectively).
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13(3)--Constitution of Pakistan, 1973, Art. 185--Performance of talab-e-ishhad--Essentials--Held: Talab-e-ishhad was made by sending notice in writing attested by 2 truthful witnesses under registered cover to the vendee and this condition would give rise to a presumption that the notice was duly served but this presumption is rebuttable--If it was proved that the notice was not served, the suit failed. [P. 244] A
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13(3)--Performance of Talab-e-Ishhad--Held:--Service of notice of Talab-e-Ishhad at ordinary postal address of vendee, under registered cover acknowledgment due was sufficient--Notice sent on ordinary place of residence of vendee was received by his representation and in proof of the service the postal receipt and acknowledgment due were placed on record--Performnace of Talab-e-Ishhad was held to be sufficiently proved on record--Judgment of High Court was upheld--Leave refused.
[Pp. 245 & 247] B & E
Punjab Pre-emption Act, 1991 (IX of 1991)--
----Preamble--Concept of Law of pre-emption--Held: The concept of law of pre-emption is that a stranger should not be allowed to purchase the property in performance to the person having first right of purchase but at the same time the condition of Talabs for exercise of right of pre-emption has been provided in law to discourage unnecessary litigation.
[P. 246] C
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13(3)--Constitution of Pakistan, 1973, Art. 185--Performance of Talab-e-Ishhad--Purpose of--Held: The purpose of giving notice of Talab-e-Ishhad is to acknowledge the right of pre-emption and to convey the intention of exercising such right by way of filing suit--Such notice is in fact an intimation and prior information to the vendee of the suit and thus the service of notice either in person or though an agent is sufficient.
[P. 246] D
1999 SCMR 717; 2001 SCMR 1651; PLD 1986 SC 360 ref.
Sheikh Ahsan-ud-Din, ASC and Ch. Akhtar Ali, AOR for Petitioner (in both cases).
Nemo for Respondent.
Date of hearing : 6.7.2005.
Judgment
Muhammad Nawaz Abbasi, J.--These two connected petitions have been directed against the judgment dated 15.4.2004 passed by a learned Judge in chambers of Lahore High Court, Rawalpindi Bench, whereby two civil revisions arising out of two separate suits for pre-emption were disposed of.
The relevant facts giving rise to these petitions are that the two independent transactions of sale of land of even date entered into by the petitioners (vendees) were pre-empted by Muhammad Nawaz, respondent herein, by way of filing the two separate suits for possession through pre-emption in the Civil Court at Attock. The suits were ultimately dismissed by the learned trial Judge, vide separate judgments dated 6.3.2003 and the appeals preferred by the pre-emptor were also dismissed by a learned Addl. DIstrict Judge, Attock, vide consolidated judgment dated 19.4.2003. The pre-emptor invoked the revisional jurisdiction of the High Court by way of filing civil revisions in the Lahore High Court, Rawalpindi Bench, and a learned Judge in chamber having reversed the concurrent findings of two Courts on the question of performance of talab-e-ishhad, dismissed the suits. The plea of the pre-emptor was that, he having made talab-e-muwathabit on 27.4.1998 of sale taken place on 25.4.1998, sent a notice of talab-e-ishhad in writing duly attested by two witnesses on 30.7.1998 under registered cover acknowledgement due in compliance of the provisions of Section 13(3) of Punjab Pre-emption Act, 1991 whereas the petitioners (vendees) denying the service of notice of talab-e-ishhad, pleaded that requirement of talab-e-ishhad was not fulfilled in accordance with law. The Court of first instance as well as the appellate Court concurrently having come to the conclusion that the requirement of talab-e-ishhad was not established, dismissed the suits but the learned Judge in the High Court, after detail examination of evidence, held that talab-e-ishhad was performed in accordance with Section 13(3) of Punjab Pre-emption Act, 1991. The reliance was placed on Abdul Malik vs. Muhammad Latif (1999 SCMR 717) wherein it was held that talab-e-ishhad being procedural in nature, could not be considered mandatory for non-suiting the pre-emptor on the ground of its non-compliance.
Learned counsel for the petitioners contended that the actual service of notice of talab-e-ishhad is necessary to establish the requirement of performance of talab-e-ishhad for enforcement of right of pre-emption and without proving of this essential condition, the right of pre-emption is deemed to have been extinguished. The learned counsel in support of his contention, has placed reliance on Abdul Qayyum vs. Muhammad Rafique (2001 SCMR 1651) wherein it was held that performance of talab-e-ishhad is most important condition for enforcing right of pre-emption.
There can be no cavil to the legal position that for exercise of right of pre-emption, the performance of talab-e-muwathabit and talab-e-ishhad in terms of Section 13 of the Punjab Pre-emption Act, 1991, is essential. Talab-e-muwathabit is the first demand through which a pre-emptor on coming to known about the sale immediately declares his intention to exercise right of pre-emption and talab-e-ishhad is second demand which is made in the manner as provided in Section 13(3) of the ibid Act, not later than two weeks from the date of knowledge and making of talab-e-muwathabit. The requirement of talab-e-ishhad is made by sending the notice in writing attested by two truthful witnesses under registered cover to the vendee and the compliance of this condition in accordance with the provisions of Section 13(3) of ibid Act, would give rise to a presumption that the notice was duly served but this is a rebuttable presumption and if it is proved that the notice of talab-e-ishhad was not served, the suit may fail. Therefore, the real proposition for consideration in the present case would be whether actual service of notice upon the vendee is necessary or the service by sending the notice of talab-e-ishhad in compliance of the provisions of Section 13(3) of Punjab Pre-emption Act, 1991, at the address of ordinary residence of the vendee is sufficient to serve the purpose of law. Section 13(3) ibid provides as under:-
"13. Demand of pre-emption.--(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:--
(a) talb-i-Muwathibat;
(b) talab-e-ishhad; and
(c) talb-e-khusumat
Explanations
I. "talb-e-Muwathibat" means immediate demand by a pre-emptor in the sitting or meeting (majlis) in which he has come to known of the sale declaring his intention to exercise the right of pre-emption.
Note.--Any words indicative of intention to exercise the right of pre-emption are sufficient.
II. "Talb-I-ishhad" means demand by establishing evidence, III. "Talb-I-khusumat" means demand by filing a suit.
(2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make talb-i-Muwathibat.
(3) Where a pre-emptor has made talb-e-mawathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make talb-i-ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due to the vendee, confirming his intention to exercise the right of pre-emption:
Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make talb-e-ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of talb-i-muwathibat under sub-section (2) and talb-e-ishhad under sub-section (3), he shall make talb-e-khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."
The plain reading of the above provision of law would show that service of notice of talab-e-ishhad at the ordinary postal address of the vendee under registered cover acknowledgement due, is sufficient. In the present case, notice (Ex.-P1) was sent in writing duly attested by two witnesses under registered cover on 30.7.1998 at the ordinary place of residence of petitioner which was received by his representative at his residence and in proof of the service of notice, the postal receipt (Ex. P6) and acknowledgement due (Ex. P-5) were placed on record.
Learned counsel for the petitioner contended that during the relevant period, Muhammad Daud, petitioner, was in Saudi Arabia and was not available at his ordinary place of residence therefore, the notice having been not personally served upon him, the requirement of talab-e-ishhad was not fulfilled and the learned Judge in the High Court by misreading the evidence, reversed the concurrent finding of the two Courts on the question of fact, in the revisional jurisdiction.
There is no cavil to the proposition that without fulfillment of the requirement of performance of talab-e-muwathabit and talab-e-isshad, the right of pre-emption cannot be exercised and the performance of these talabs must be specifically proved through the evidence. The notice of talab-e-ishhad is sent through registered post acknowledgement due in the manner as prescribed in law and in the areas in which postal service is not available, oral intimation is sufficient, therefore, the sending of notice of talab-e-ishhad by post under registered cover acknowledgement due attested by two truthful witnesses and the receipt of notice by the pre-emptor directly or indirectly, is considered sufficient compliance of the law. It may be seen that the Punjab Pre-emption Act, 1991 was enacted in the light of judgment of Shariat Appellate Bench of this Court in Government of NWFP vs. Said Kamal Shah (PLD 1986 SC 360) wherein it was held that for exercise of right of pre-emption, pre-emptor must fulfil requirement of talab-e-muwathabit and talab-e-ishhad and in case of non-performance of these essential conditions, the right of pre-emption is extinguished. The concept of law of pre-emption is that a stranger should not be allowed to purchase the property in preference to the persons who have the first right of purchase but at the same time the condition of talabs for exercise of right of pre-emption has been provided in law to discourage unnecessarily litigation. The purpose of giving the notice of talab-e-ishhad is to acknowledge the right of pre-emption and to convey the intention of exercising such right by way of filing the suit. This notice is in fact an intimation and prior information to the vendee of the suit and thus the service of notice either in person or through an agent is sufficient. In the present case, the perusal of record would show that the pre-emptor having specifically pleaded in the plaint of making talabs, has also brought on record oral and documentary evidence to prove the service of notice of talab-e-ishhad in the manner as prescribed in Section 13(3) of Punjab Pre-emption Act, 1991, therefore, the requirement of giving information to the vendee for filing suit was properly fulfilled and thus the suit could not be defeated on the basis of technical objection that notice was not served in person.
We in the light of the statutory provisions and the law laid down by this Court, having heard the learned counsel for the petitioner and considered the contentions raised by him in support of these petitions, find that requirement of performance of talab-e-ishhad was sufficiently established on record and the two Courts subordinate to the High Court through misreading of the evidence having drawn a wrong conclusion dismissed the suit and this error was rightly corrected by the High Court in its revisional jurisdiction. We having not been able to find out any factual or legal infirmity or jurisdiction error in the judgment of the High Court find no substance in this petition.
For the reasons given above, both these petitions are dismissed. Leave is refused.
(J.R.) Leave refused.
PLJ 2006 SC 247
[Appellate Jurisdiction]
Present : Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ
SUBA KHAN--Petitioner
versus
MUHAMMAD AJMAL and 2 others--Respondents
Criminal Petition No. 398 of 2003, decided on 22.2.2005.
(On appeal from the judgment dated 5.9.2003 passed by Peshawar High Court, Peshawar, in Cr.M. 141/2003).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Cancellation of bail--Held: If the Court granting bail had not violated the principles laid down for grant of bail, the cancellation was not proper. [P. 249] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Cancellation of bail--Held: Mere fact that there could be another opinion of the matter to that of opinion formed by the Court while granting bail, on the basis of tentative assessment of the evidence, would not be a sufficient ground for cancellation of bail, provided the same could be found to have qualified the test of calling further inquiry in terms of Section 497(2). [P. 249] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Pakistan Penal Code S. 302/324/148/149--Bail was granted by High Court--Cancellation of--Occurrence took place at night--A number of accused participated--Statments of witnesses were not recorded on the same day--Held: High Court had rightly formed the opinion that essential conditions for grant of bail under Section 497(2) were satisfied--Leave refused. [P. 250] C & D
PLD 1990 SC 83; PLD 1988 SC 621 and 1985 SCMR 195 ref.
Mr. Mushtaq Ali Tahirkhali, ASC for Petitioner.
Dr. Babar Awan, ASC for Respondents Nos. 1 & 2.
Hafiz Aman, for State.
Date of hearing : 22.2.2005.
Judgment
Muhammad Nawaz Abbasi, J.--The petitioner seeks leave to appeal against the order dated 5.9.2003 by virtue of which a learned single Judge of Peshawar High Court, Peshawar, granted bail to the respondents in a murder case.
The respondents are nominated accused in a case registered against them and the unknown culprits under Section 302/324/148/149 PPC at police station Ghazi district Haripur on the information given to the SHO of police station while he was on patrol duty, by Suba Khan (complainant) that at about 2.30 a.m. on that day, he on hearing hue and cry from the house of his nephew, Iftikhar, rushed to his house and found that 5/6 persons armed with Kalashankovs, including Muhammad Ajmal, Muhammad Ilyas and Riasat son of Muhammad Afsar, who were identified by him in the torch light were running from the side of his house. He stated that an reaching at the spot, he found Iftikhar in injured condition and his wife Mst. Anila, was lying dead and that the fateful occurrence was the result of the enmity of respondents with the complainant party. The respondents were refused bail by learned Additional Sessions Judge, Haripur, but were allowed the confession of bail by a learned Single Judge in chambers of Peshawar High Court, Abbottabad Bench, vide order dated 5.9.2005, with the observation that the identification of the accused in the torch light as claimed by the first informant and the eye-witnesses, was not free from doubt particularly in view of the fact that the torch was not taken into possession by the investigating officer and that there was no explanation of not mentioning the names of two female inmates of the house who have claimed to have witnessed the occurrence and delay of two days in recording their statement under Section 161 Cr.P.C. was also not explainable. The learned Judge also observed that neither any specific role was attributed to any of the accused in the F.I.R. nor the statement of Iftikhar, who despite being injured was not unconscious, was recorded on the day of occurrence.
Learned counsel for the petitioner has sought leave to appeal in this petition with the contention that the learned Judge in the High Court having discussed the merits of the prosecution case in detail and making deep appraisal of the evidence granted bail to the respondents in complete departure to the principles governing for grant of bail in non-bailable cases and also in the cases which fall within the prohibitory clause of Section 497 Cr.P.C. The learned counsel added that the petitioner who was represented by the counsel before the High Court, was condemned unheard as the learned Judge without hearing his counsel, decided the bail application, which was an undue advantage to the respondents at the cost of causing serious prejudice to the case of complainant. The main ground urged by the learned counsel in support of the cancellation of bail is that the complainant having identified both the respondents in the torch light, named them in the report lodged by him immediately after the occurrence to the SHO and the two women, eye-witnesses and inmate of the house, having identified the respondents as main accused, stated in their statements under Section 161 Cr.P.C. that they have played the role of firing at the deceased. Learned counsel added that in such circumstances the mere presence of a person at the sence as member of unlawful assembly, would be sufficient to ascertain his guilt, by virtue of vicarious liability and while placing reliance on Bashiran Bibi vs. Nisar Ahmad Khan (PLD 1990 SC 83), Asmat Ullah Khan vs. Bazi Khan (PLD 1988 SC 621) and Arbab Ali vs. Khamiso and others (1985 SCMR 195), has sought cancellation of bail of respondents granted to them by the High Court.
This petition has been opposed by Dr. Babar Awan, counsel for the respondents on the grounds firstly, that there was no complaint against the respondents of Misuse of the concession of bail in any manner or abuse of their liberty by causing any obstruction is the trial which has not yet commenced and secondly, the High Court having made a tentative assessment of the evidence, formed an opinion that in the given facts, the question of guilt or innocence of the respondents would need further probe and having found it a case falling within the ambit of sub-section (2) of Section 497 Cr.P.C. granted bail to the respondents in accordance with the principles for grant of bail in such cases settled by this Court. Learned counsel with reference to the case law, submitted that the consideration for cancellation of bail being different to that of grant of bail, the matter would not call for interference of this Court.
Learned counsel appearing on behalf of State has informed us that the trial could not yet proceed because of absconsion of Muhammad Riasat accused but he has supported the cancellation of bail on the ground that the respondents were attributed the direct role of firing to the deceased and the injured were identified by the eye-witnesses as main culprits of the occurrence.
This is settled rule that if the Court while granting bail has not violated the principles laid down for grant of bail, the cancellation is not proper. The mere fact that there could be another opinion of the matter to that of the opinion formed by the Court on the basis of tentative assessment of the evidence, would not be a sufficient ground to cancel the bail if in the light of the facts of the case, it can be found to have qualified the test of calling further inquiry into the guilt or innocence of an accused in terms of sub-section (2) of Section 497 Cr.P.C. This Court in a number of cases interpreted the provisions of Section 497(2) Cr.P.C. and held that main consideration for grant of bail under sub-section (2) of Section 497 Cr.P.C. is that if the Court on the basis of tentative assessment of evidence, forms an opinion that prima facie, there were reasonable grounds to believe that accused has not committed an offence with which he has being charged, he would be allowed bail by virtue of sub-section (2) of Section 497 Cr.P.C. as of right. In the present case, it will be seen that it was a night occurrence in which a number of accused participated, and the statements of Iftikhar injured as well as the two women witnesses who were the inmates of the house, were not recorded don the same day. It appears that the learned Judge in the High Court, in the light of the above features of the case, having formed an opinion that it was a case of further inquiry, granted bail to the respondents. We agree with the learned counsel for the petitioner that the deep appraisal and detailed discussion of evidence at the bail stage so as to prejudice the merits of the case of either party at the trial cannot be permitted and we strongly deprecating the expression of opinion on the merits of the case at bail stage, observe that the Courts should be conscious not to cross the barrier of possible limits while making tentative assessment of the evidence at bail stage. However, we having heard the learned counsel for the parties, have not been able to find out that the observation made by the learned Judge in the High Court in the bail order would in any manner, be relevant to effect the case on merits at the trial and consequently, we would not consider it a good ground for cancellation of bail. In the light of facts and circumstances of the case and tenor of the order of the High Court it appears that learned Judge having formed the opinion that the essential conditions for grant of bail under sub-section (2) of Section 497 Cr.P.C. were satisfied, allowed the bail to the respondents and we having not formed a contrary opinion, would not be inclined to interfere with the order passed by the High Court. Be that as it may, we deem it proper to observe that the assessment of the evidence made by the learned Judge in chamber in the High Court, would be treated to be confined only to the extent of bail order and would not be relevant for the purpose of appreciation of evidence at the trial and the petitioner shall be at liberty to file a fresh application before the High Court for cancellation of bail of respondents in case of misuse of concession of bail by them or if it is found that a fresh ground is available for cancellation of bail after the statements of material witnesses is recorded. We have been informed that despite lapse of a period of more then three years since taking place of the occurrence, the trial has not yet commenced. We, therefore, direct that trial Court without granting the unnecessary adjournments should make efforts for expeditious conclusion of the trial.
Withe the above observation, this petition is dismissed. Leave is refused.
(J.R.) Leave refused.
PLJ 2006 SC 612 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar, Muhammad Nawaz Abbasi and Mian Shakirullah Jan, JJ.
MUHAMMAD RAFIQUE and another--Petitioners
versus
STATE--Respondent
Jail Petition Nos. 418 & 426 of 2002, decided on 27.10.2005.
(On appeal from the judgment dated 23.10.2002 of Peshawar High Court, Abbottabad Bench, passed in Crl. As. Nos.19 and 20 of 2002)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan (1973), Art. 185(3)--Appeal against conviction and sentence of death for offence of murder--Apart of confessional statements of appellants prosecution has established its case by bringing on record un-impeachable circumstantial evidence of recovery of weapon from petitioner lady and matching of the same with empty recovered from spot--Recovery of matching of piece of bullet from body of deceased further corroborates that he was fired at by weapon recovered by police--Petitioner lady had admitted about killing of deceased with weapon in question which was given to her by other appellant--Son of deceased also testified killing of his father at relevant time and place--Petitioners failed to point out any illegality, infirmity, misreading, non-reading of evidence from judgments of both Courts below--Evidence of judicial confession and recovery against petitioner fully established guilty of appellants--Defence has thus, failed to shatter the case of prosecution--Leave to appeal was refused.
[Pp. 614, 615 & 616] A & B
Mr. Ali Hasan Gillani, ASC for Petitioners.
Mr. M. Bilal, Sr. ASC for State.
Ch. Muhammad Akram, AOR for Complainant.
Date of hearing : 27.10.2005.
Judgment
Abdul Hameed Dogar, J.--By this common order we propose to dispose of Jail Petition Nos. 418 and 426 of 2002 filed by petitioners Muhammad Rafique and Mst. Bibi Khatoon arising out of judgment dated 23.10.2002 passed by learned Division Bench of Peshawar High Court, Abbottabad Bench whereby Criminal Appeal Nos. 19 and 20 of 2002 filed by them were dismissed and their conviction under Section 302(b) PPC read with Section 34 PPC and sentence of death alongwith payment of Rs. 30,000/- each as compensation to the legal heirs of deceased or in default whereof to suffer six months R.I. were maintained. Murder reference under Section 374 Cr.P.C. for confirmation of death sentence was also answered in affirmative.
Precisely, stated facts leading to the filing of instant petitions are that on 5.7.1999 PW-Hazrat Nabi ASI of Police Station Havelian lodged the case on the information of complainant Mst. Bibi Khatoon that on 5.7.1999 at about 11.50 p.m. she woke up on hearing fire shot report and saw her husband lying in injured condition and could not answer her query. She neither saw anyone firing nor had any suspicious on any one. On her hue and cry villagers got attracted at the spot and shifted injured to the hospital where he succumbed to the injuries.
The post-mortem examination was conducted by Dr. Muhammad Saeed PW-4. According to him there was a circular wound on left side of abdomen 5" below the umbilicus and 3" from the mid-line and 4" from left iliac crest size 1/2 cm x 1/2 c.m. edges inverted, margins blackish and blood oozing out with no exit wound. He also elaborated the internal extensive damage caused to the vital organs resulting into the death of the injured. He also recovered a metallic piece of bullet from the left iliac crest, weighing 5 grams and was sealed in a bottle.
3-A. During investigation police arrested petitioners on 6.7.1999 who volunteered to confess the guilt as such their confessional statements were recorded on 7.7.1999 by Judicial Magistrate (PW-6).
Petitioner Mst. Bibi Khatoon led to the recovery of pistol which was taken into possession and sent to Fire Arms Expert alongwith crime empties which was later on opined by the Forensic Science Laboratory to be positive.
In their statements recorded under Section 342 Cr.P.C. they denied to have confessed the guilt and pleaded innocence.
On conclusion of trial both the petitioners were found guilty of offence and convicted and sentenced as stated above.
We have heard Syed Ali Hasan Gillani, learned counsel for the petitioners, Ch. M. Akram, learned AOR for the complainant and Mr. M. Bilal, learned Sr. ASC on behalf of AG NWFP at length and have gone through the record and proceedings of the case in minute particulars.
Learned counsel for the petitioners has failed to point out any illegality, infirmity, misreading, non-appreciation of evidence from the judgments of both Courts below. He admitted that though there is evidence of judicial confession and recovery against the petitioners yet they deserve leniency in the sentence.
On the face of record, it is established that petitioners Mst. Bibi Khatoon and Muhammad Rafique had developed illicit relations and they with common intention conspired to kill deceased husband of petitioner Mst. Bibi Khatoon which fact came on record from the confessional statement of petitioners. Petitioner Mst. Bibi Khatoon in her confessional statement candidly admitted to have killed her husband. The same is reproduced as under:--
"My marriage took place with the deceased Muhammad Yousaf about 15/16 years ago. We had two male issues; one namely, Shakeel at the age of about 9 years and the second one is Jamil at the age of about 7 years. My husband became impotent after the birth of our second child. He was suspicious about my moral character and used to beat me every now and then. I developed relations with Muhammad Rafique son of Abdul Aziz, my neighbour, about a year ago. We liked each other and Muhammad Rafique promised me that he will marry me after my husband is removed from the path. In the meanwhile my husband become aware of my relations with Muhammad Rafique and because of this he started cursing and abusing me. Rafique told me that he will kill my husband and than marry me. He made his efforts but could not succeed. Accused Rafique came to my house one day prior to the occurrence and gave me the pistol which was already loaded. He narrated the plan to me that I should kill my husband during the night by making firing when he is asleep and then raise hue and cry that someone has killed my husband. Rafique also told me how to use the pistol. Consequently, on the night of occurrence I slept with my husband in the same cot and fired the shot in his abdomen because of which he was injured. I raised noise. Rafique also came to the spot. I hided the pistol at the instance of Rafique. I also made the report to the local police on the directions of Rafique."
"I was working with deceased Muhammad Yousaf as labourer/assistant in the work of shuttering of roofs for the last 3 years. In the meanwhile I developed relations with Mst. Bibi Khatoon wife of Muhammad Yousaf. We liked each other but had not committed any Zina. About a year ago, Yousaf became aware of this and he started beating his wife. At this Mst. Bibi Khatoon asked me to kill her husband, but I refused. At this she asked me to bring some weapon to her so that she might kill the husband herself. I also liked Bibi Khatoon and wanted to marry her. I brought a pistol from Peshawar and handed it over to Mst. Bibi Khatoon about a week prior to the occurrence. I had given her the pistol duly loaded and has also tutored her how to make the shot. On the night of occurrence she fired a shot in the abdomen of her husband during the mid-night which resulted in serious injury to him. I had also told Mst. Bibi Khatoon to raise noise after killing her husband, that some unknown person had killed her husband and run away from the spot. She acted accordingly, I had also instructed her to hide the pistol and she accordingly did so by burying the pistol about 100/150 paces from the spot. She also made the report to the local police according to my plan. We had also stolen away a .7 mm rifle of Muhammad Yousaf about two days prior to the occurrence. The rifle was brought to my house by Mst. Bibi Khatoon, and I concealed it below the husk in my room. We did this so as to make a false story that a robbery had occurred in which Yousaf was killed and his rifle and other valuables were stolen away."
Irrespective of above confessional statements, the prosecution has succeeded in establishing its case by bringing on record unimpeachable circumstantial evidence of recovery of pistol from petitioner Mst. Bibi Khatoon and its matching with empty recovery from the spot. The recovery of matching of piece of bullet from the body of the deceased further corroborates that he was fired at by pistol.
There is no dispute with regard to the factum of incident because, firstly, petitioner. Mst. Bibi Khatoon has admitted about the killing of deceased Muhammad Yousaf her husband inside her house; secondly, her real son namely, Shakeel also testified about the killing of his father at the relevant time. When examined this aspect inconsonance with the confessional statement of petitioner Mst. Bibi Khattoon the case that deceased was done to death by petitioner Mst. Bibi Khatoon stands established. Even otherwise petitioner Mst. Bibi Khatoon has not been able to show other manner in which deceased was done to death. She in order to save her skin from the clutches of law attempted to become complainant but failed and during investigation she was found to be the real culprit and volunteered to make confessional statement. The Magistrate PW-6 deposed that he recorded the confessional statements of both the petitioners after fulfilling all the legal formalities. According to him both the petitioners made their voluntary confession with their own will and without any duress or compulsion.
What has been discussed above, we are of the considered opinion that defence has failed to shatter the case of prosecution. Accordingly, finding no merits both petitions are dismissed and leave to appeal refused.
(A.A.) Leave refused.
PLJ 2006 SC 616 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ.
MUHAMMAD RAZZAQ--Petitioner
versus
STATE--Respondent
Jail Petition No. 60 of 2004, decided on 20.10.2005.
(On appeal from the judgment dated 26.1.2004, of the Lahore High Court, Lahore passed in Crl. A. No. 115-J of 2000 & Murder Reference No. 138 of 2000)
(i) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Constitution of Pakistan (1973), Art. 185(3)--Conviction and sentence of death for offence of murder, assailed--Appreciation of evidence--Ocular straight forward and consistent testimony furnished by complainant and other prosecution witness was found to be credit worthy by trial Court and First Appellate Court--No inherent defect or material lacuna was found or pointed out in evidence of eye-witnesses whose presence at site of occurrence has been established beyond any reasonable shadow of doubt being material and natural witnesses--Prosecution has fully proved its case by producing cogent evidence--No extenuating circumstances have been shown to take lenient view and for award of lesser penalty--Concurrent findings of two Courts below being based on cogent evidence do not justify interference--Leave to appeal was thus, refused. [P. 619] A
Mr. Arshad Ali Chaudhry, ASC for Petitioner.
Nemo for Respondent.
Date of hearing : 20.10.2005.
Judgment
Abdul Hameed Dogar, J.--Petitioner seeks leave to appeal against the judgment dated 26.1.2004 of a learned Division Bench of Lahore High Court, Lahore, whereby Criminal Appeal No. 115-J of 2000 filed by him was dismissed and sentence of death awarded by the trial Court was confirmed and Murder Reference was answered in affirmative.
Briefly, stated, the facts of the case are that on 21.2.1996 at 12.00 noon in the area of Nangal Sahdan within the jurisdiction of Police Station Saddar Muridke, District Sheikhupura petitioner Muhammad Razzaq and accused Muhammad Siddiq called bad names to Tariq Mehmood at the shop of Bohla, a Tea Vendor. Tariq Mehmood rushed to his house. Petitioner Muhammad Razzaq and accused Muhammad Siddiq armed with .7 MM rifles alongwith accused Muhammad Latif and Ramzan armed with .12 bore double barrel guns reached there. Accused Muhammad Siddiq and Latif made their way to the courtyard of the house. Tariq Mehmood on seeing them climbed over the roof of his house. Muhammad Siddiq and Muhammad Latif fired with their rifles which did not hit Tariq Mehmood. Petitioner Muhammad Razzaq allegedly fired with his rifle hitting on the forehead of Tariq Mehmood who fell down. Muhammad Ramzan also resorted to ineffective firing which attracted the residents of Muhallah to the scene of occurrence. All the accused including petitioner ran away from the spot. Tariq Mehmood was shifted to General Hospital, Lahore where he succumbed to the injury. The matter was reported to the police and case under Sections 302/452/34 PPC was registered at Police Station Saddar, Muridke. The motive beyond the occurrence is that about three months prior to the occurrence a quarrel took place between the children of deceased Tariq Mahmood and that of Muhammad Latif alias Lala accused due to which deceased Tariq Mehmood had also picked up quarrel with Muhammad Latif accused. However, the matter was patched up but Muhammad Latif accused had the grudge. On 20.3.1996 all the accused were arrested. On the pointation of petitioner Muhammad Razzaq a rifle was recovered.
On conclusion of investigation, petitioner and his co-accused were sent up to face trial. A charge under Sections 302/452/34 PPC was framed against petitioner and his co-accused to which they pleaded not guilty and claimed trial.
Prosecution examined nine witnesses in order to prove its case.
On autopsy, Dr. Mukhtar Ahmed, Medical Officer DHQ Hospital, Sheikhupura (PW-1) found only one fire-arm lacerated wound 12 cm x 3 cm brain matter deep on the top of skull of the deceased.
Petitioner and his co-accused in their statements recorded under Section 342 Cr.P.C. denied the case of the prosecution and claimed innocence. On a question `as to why this case against him', petitioner stated as under:
"Tariq Mehmood deceased used to sell narcotics in the village alongwith his wife Mst. Tahira Bibi, complainant. I time and again forbade him from doing so, but despite all my efforts he did not stop himself from such activities. On the fateful day I was firing in the air in self-defence. One of the fires hit the deceased on his head who succumbed to the injury. PWs are closely related to the deceased."
They neither examined themselves on Oath as required under Section 340(2) Cr.P.C. nor led any evidence in defence.
On the conclusion of trial, petitioner was convicted under Section 302(b) PPC and sentenced to death. He was also directed to pay Rs. 1,00,000/- as compensation to the legal heirs of the deceased or in default thereof to further suffer six months R.I. However, the learned trial Court acquitted the accused Muhammad Latif, Muhammad Ramzan and Muhammad Siddique from the charges.
Being aggrieved, petitioner challenged the judgment in appeal before learned Lahore High Court, Lahore which, was dismissed vide impugned judgment.
We have heard Mr. Arshad Ali Chaudhry, learned ASC for petitioner and have gone through the record and the proceedings of the case in minute particulars.
It is mainly contended by the learned counsel for petitioner that the impugned judgment is erroneous, untenable in law, unjust and is based upon conjectures and surmises. He maintained that the ocular evidence is contradicted by the medical evidence and suffers from material discrepancies. He pointed out that the case of the prosecution is based on interested and inimical evidence, as such, it requires independent corroboration which is lacking in this case. He contended that the ocular evidence furnished by the prosecution is consisting of statements of complainant Mst. Tahira Bibi as PW-5 and Muhammad Arif as PW-7 but no independent witness has been cited and therefore they are interested witnesses and their testimony is not free of doubt and should not be accepted without any independent corroboration.
The ocular straightforward and consistent testimony furnished by complainant Mst. Tahira Bibi and PW Muhammad Arif and was found to be credit worthy by the trial Court as well as the First Appellate Court. There appears to be no inherent defect or material lacuna in the evidence of both the eye-witnesses whose presence at the site has been established beyond any reasonable shadow of doubt being material and natural witnesses. Mere relationship is no ground to discard the evidence, which otherwise is true, natural and believable in character. The prosecution has fully proved its case by producing cogent evidence to the extent that it was petitioner who fired at the deceased. Though the witnesses were cross-examined yet their evidence was not shattered at all. Both the eye-witnesses have categorically stated in their statements that the deceased sustained fire-arm injury on his forehead. In the event of proof of charge of qatl-e-amd normal penalty under the law is death and extenuating circumstances must be shown for taking a lenient view and for the award of lesser penalty, which do not appear to exist on the face of record. The learned counsel for petitioner has failed to point out any illegality or irregularity in the impugned judgment to warrant interference by this Court, therefore, we are not inclined to reappraise it as on the face of it, it does not seem to suffer from any infirmity.
For what has been stated above, we do not find any reason to interfere with the concurrent findings of two Courts below. Accordingly, the petition being devoid of force is dismissed and leave to appeal refused.
(A.A.) Leave refused.
PLJ 2006 SC 619 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ.
MUHAMMAD IQBAL--Petitioner
versus
STATE--Respondent
Jail Petition No. 148 of 2004, decided on 19.10.2005.
(On appeal from the judgment dated 11.2.2004 of the Lahore High Court, Lahore passed in Crl. A. No. 999/01)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan (1973), Art. 185(3)--Conviction and sentence of death for offence of murder, assailed--Ocular evidence furnished by complainant and other eye-witness stood fully corroborated by medical evidence--Scrutiny of evidence would show that petitioner has been changing his stance--Petitioner had charged his defence version taken earlier during his statement under S. 342 Cr.P.C.--Motive put forth in F.I.R. is stated differently which has no nexus with theory put forth by petitioner--Petitioner did not ask any question on motive as mentioned in F.I.R. during cross-examination--Prosecution has thus, fully established its case against petitioner--No misreading or non-reading of evidence warranting interference was pointed out--Leave to appeal was refused.
[Pp. 621 & 622] A & B
Sardar M. Siddique Khan, ASC for Petitioner.
Nemo for Respondents.
Date of hearing : 19.10.2005.
Order
Abdul Hameed Dogar, J.--Petitioner Muhammad Iqbal seeks leave to appeal against judgment dated 11.2.2004 passed by learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeal No. 999 of 2001 filed by him was dismissed and his conviction under Section 302(b) PPC and sentence of death and compensation of Rs. 50,000/- to be paid to the legal heirs of the deceased were maintained.
Precisely, the case of prosecution is that on 7.11.1998 at about 3 p.m. complainant was sitting alongwith PWs Muhammad Rafiq and Muhammad Sharif outside Asif Pan Shop in Mohallah Momamabad. In the meantime, deceased Babar, nephew of complainant, passed near the house of petitioner alongwith buffalo when petitioner armed with .30 bore pistol, acquitted accused Imtiaz Ahmed armed with .222 rifle and one Muhammad Asif empty handed appeared suddenly and on lalkara of Muhammad Asif petitioner fired from his pistol at deceased Muhammad Babar which hit on his left flank whereas acquitted accused Imtiaz Ahmed fired from his rifle which hit deceased on the left hand who was taken to the hospital in injured condition where he succumbed to the injuries.
The motive behind the occurrence is that on the day of occurrence at about 8.00 a.m. deceased was taking his buffalo in front of the house of petitioner and on objection quarrel took place between them but the matter was patched up. It was due to the above reason, the petitioner while taking the avenge caused the death of deceased.
Petitioner, acquitted accused Imtiaz Ahmed and Muhammad Asif were arrested and sent up to face trial before Judge Special Court STA, Gujranwala.
The prosecution examined 12 witnesses in all.
On autopsy, PW-9 Dr. Muhammad Fayyaz, Medical Officer, noticed the following injuries on the person of deceased;
(i) Fire-arm lacerated wound of entry 3/4 cm x 1/2 cm inverted margins and going deep on the outer-side of left abdomen 3« cm above left iliac crest, 18 cm outer of umbilicus.
(ii) Fire-arm lacerated wound of entry 1/2 cm x 1/2 cm inverted margins going deep on back of left hand at base of middle finger.
(iii) Fire-arm lacerated wound of exit 1/2 cm x 1/2 cm averted margins in front of left hand at base of left middle finger.
The petitioner in his statement recorded under Section 342 Cr.P.C. denied the case of prosecution and claimed innocence. He neither examined himself on oath as required under Section 340(2) Cr.P.C. nor led any evidence in defence.
On the conclusion of trial Muhammad Asif was acquitted whereas petitioner and co-accused Imtiaz Ahmed were convicted and sentenced as mentioned above.
Both of them filed appeal before Lahore High Court, Lahore. During pendency of appeal compromise took place between legal heirs of deceased and co-accused Imtiaz Ahmed and on that basis who was acquitted from the charge whereas conviction and sentence against petitioner was maintained.
We have heard Sardar M. Siddique Khan, learned counsel for the petitioner at length and have gone through the record and proceedings of the case in minute particulars.
In this case prosecution has brought ocular evidence furnished by complainant Muhammad Hanif and PW Muhammad Rafiq, which is fully corroborated by medical evidence furnished by Dr. Muhammad Fayyaz, Medical Officer who testified that deceased has sustained three fire arm injuries one on outer side of left abdomen and two on left hand. On the scrutiny of record, it found that petitioner has been changing his stance. At the initial stage he has put forth defence version that deceased has developed illicit relations with his sister and while he was forcibly abducting her he appeared at the spot at that particular moment and fired on the deceased. In his statement under Section 342 Cr.P.C. while answering the question "why this case against you and why the PWs have deposed against you" he answered in the following words:--
"My sister is the wife of Zulfiqar who is the brother of Imtiaz accused. Imtiaz accused used to tease my sister, wife of his brother Zulfiqar. Due to this she being annoyed by Imtiaz and left the house of her husband Zulfiqar, 10/12 days before the occurrence. Imtiaz accused alongwith his father and other relatives came to our house for reconciliation. Imtiaz accused did not enter our house but other relatives entered our house and began to discuss the issue with my family. During the discussion some altercation took place between our family and accused Imtiaz Ahmad's father and other relatives. Upon this the accused Imtiaz started abusing our family standing outside our house. I could not bear this and with the sudden provocation I ran towards Imtiaz accused in order to teach him a lesson but my family made me stop and locked the front door and I went upstairs and threw a brick towards Imtiaz accused. Imtiaz accused who was also armed with pistol fired at me. During that firing a fire unfortunately hit Babar deceased who was a passerby, I did not fire at Babar deceased because I had no enmity with him nor I wanted to kill him. Fire accidentally hit Babar deceased. I am innocent and I had no motive to kill Babar deceased."
The motive put forth in the FIR is stated differently and has no nexus with the above referred theory put forth by petitioner. The petitioner did not ask any question on motive as mentioned in the FIR during cross examination.
From the above circumstances it is evident that the prosecution has fully established its case against petitioner. Learned counsel has failed to point out any illegality, misreading or non-reading of evidence warranting interference by this Court. Resultantly, instant petition being devoid of force is dismissed and leave to appeal refused.
(A.A.) Leave refused.
PLJ 2006 SC 622 [Appellate Jurisdiction]
Present: Rana Bhagwandas, Mian Shakirullah Jan and Hamid Ali Mirza, JJ.
MUHAMMAD AFZAL--Petitioner
versus
MATLOOB HUSSAIN etc.--Respondents
C.P. No. 178 of 2003, decided on 30.9.2005.
(On appeal from the judgment dated 15.10.2002 passed by the Lahore High Court, Rawalpindi Bench in C.R. No. 170 of 1992)
(i) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 52--Record of rights--Presumption--Presumption of correctness is attached to entries in record of rights or periodical record as the same would be presumed to be true, until contrary is proved--Presumption of truth or correctness is however, rebuttable--Where plaintiffs were having more reliable and authentic document in the form of decree of Court they would stand on strong footing and presumption of correctness and truth would be successfully rebutted. [Pp. 625 & 626] A & B
(ii) Transfer of Property Act, 1882 (IV of 1882)--
----S. 41--Bonafide purchaser for consideration--Protection under S. 41, Transfer of Property Act, (IV of 1882)--Exception--No one can transfer to another or can confer a right or title greater or higher than what he himself possesses--Exception to that general rule is that whenever one of two innocent persons has to suffer by act of third person he who has enabled that person to occasion the loss, must sustain the same or where one of two innocent persons suffer from fraud of third person, the loss would fall on him who has created or could have prevented opportunity for fraud. [P. 626] C
(iii) Transfer of Property Act, 1882 (IV of 1882)--
----S. 41--Qanun-e-Shahadat Order (10 of 1984), Art. 114--Protection of equitable doctrine enunciated by S. 41, Transfer of Property Act, 1882--Eligibility--Person seeking relief must show that transferor was the ostensible owner; that he was so by consent express or implied of real owner, that transfer was for consideration; that transferee has acted in good faith taking reasonable care to ascertain that transferor had power to transfer--Where one of such ingredients was wanting, then equitable doctrine envisaged under S. 41 of the Act of 1882, would not be attracted.
[P. 627] D
(iv) Transfer of Property Act, 1882 (IV of 1882)--
----S. 41--Constitution of Pakistan (1973), Art. 185(3)--Co-sharers separately in possession of land left by their predecessor--Entries in ownership column of Record of Rights stated that parties jointly owned land in question--Column of cultivation, however, showed that plaintiffs were in possession of that land while defendants were in possession of other joint property--Possession of plaintiffs being of long standing, was also corroborated by decree of Court wherein plaintiffs were treated to be in possession on basis of private partition--Person who had purchased land in question from that co-sharer/defendant who was not in possession thereof and also failed to show that he was a bonafide purchaser for consideration, would not be entitled to seek protection under S. 41, Transfer of Property Act, 1882--Leave to appeal was thus refused to petitioner/purchaser. [P. 629] E
PLD 1966 (W.P.) Lahore 654; PLD 1983 SC 53; AIR 1930 P.C. 91; 1983 SCMR 988; PLD 2001 SC 401; PLD 1994 SC 245; 2004 SCMR 1137; Mulla's Transfer of Property Act 1992, (10th Ed. 1987) ref.
Sh. Zamir Hussain, ASC & Mr. Ejaz Muhammad Khan, AOR for Petitioner.
Respondent No. 2 in person.
Date of hearing : 30.9.2005.
Judgment
Mian Shakirullah Jan, J.--This petition is directed against the judgment of the Lahore High Court, Rawalpindi Bench whereby while accepting the Civil Revision filed by the respondents, the judgments of the two Courts below were set-aside and the suit filed by the petitioner was decreed.
"1. Whether the plaintiff's father divided his estate amongst his sons in his lifetime and was that partition acted upon?"
with the following finding of the Court:--
"The above documents will show that the plaintiff has been making a number of alienations since as early as 1898, treating the property as his own. The document Ex. P.2 in very unequivocal terms corroborates the theory now propounded by the plaintiff that private partition had been made during their father's lifetime and that the land in his village had fallen to his share though it was entered in the joint names of the parties. This distribution of the land in the two villages was therefore, not a mere family arrangement, but was really a matter of partition. My finding on the issue is therefore in plaintiff favour."
The two Courts below i.e. the Trial Court and the Appellate Court, have non-suited the plaintiffs on the ground that there are long standing entries in the Revenue Record showing the property in the co-ownership of both the parties and the judgment referred to above was stated to be about the Tenancy Rights under Section 6 of the Tenancy Act, 1887 and not qua the ownership of the plaintiffs. The High Court while reversing the findings of the Courts below, was of the view that the judgment was wrongly interpreted and is the result of mis-reading and while relying on the above referred judgment of the year 1916, the disputed property was held to be that of the plaintiffs and the defendant had no right in the property to sell it to the petitioner. The petitioner felt aggrieved and filed the instant petition for leave to appeal.
The learned counsel for the petitioner has vehemently argued that there are long standing entries in the Revenue Record showing property in the co-ownership of the parties and not in the exclusive ownership of the plaintiffs and that no effect to the judgment of the year 1916 has been given in the Revenue Record. In this respect, he has referred to the relevant portion of the judgment of the Trial Court, whereby reference had been given to various Jamabandies of different years. At the end, he has argued that the petitioner is a bonafide purchaser and is protected under Section 41 of the Transfer of Property Act, 1882. In this respect he has placed reliance on the judgments "Illahi Bakhsh and others v. Hassan Khan and others (PLD 1966 (W.P.) Lahore 654) and Kanwal Nain and three others v. Fateh Khan and others (PLD 1983 SC 53)".
Regarding his first submission i.e., the long standing entries in the Revenue Record about the ownership of the parties, there are two types of documents, one consists of Jamabandies which favour the petitioner by describing the defendant as co-sharer with the plaintiffs while on the other hand, there is a judgment of the Court which favours the plaintiffs. According to Section 52 of the Land Revenue Act, 1967 presumption of correctness is attached to the entries in the Record of Rights or periodical record as the same shall be presumed to be true, until contrary is proved. The presumption of truth or correctness is rebuttable. The entries are not the foundation of title but are mere items of evidence to be adduced by the vendee to prove the sale as held in Wali Muhammad and others v. Muhammad Bakhsh and others (AIR 1930 Privy Council 91), which view was reiterated in Muhammad Bakhsh v. Zia Ullah and others (1983 SCMR 988), by holding the entries in the Revenue Record as not the foundation of title but some items of evidence to prove title. By no stretch of imagination "Jamabandi" can be considered as exclusive proof of ownership or allotment as ruled in judgment of Fazal Hussain v. Additional Settlement Commissioner (Lands) and 5 others (PLD 2001 SC 401). The entries in the Revenue Record are maintained mainly for fiscal purposes and they neither create nor extinguish the title to the property and are not conclusive proof of ownership as held in Muhammad Ali and 25 others v. Muhammad and 6 others (PLD 1994 SC 245) and Muhammad Hussain v. Wahid Bakhsh (2004 SCMR 1137). Since the plaintiffs are having a more reliable and authentic document in the form of decree of the Court stand on a strong footing and presumption of correctness has been successfully rebutted. Even it can definitely be said that on account of the partition, the respondents/plaintiffs were the exclusive owners of the property.
Regarding his second submission, about the plea of protection under Section 41 of the Transfer of Property Act 1882, taken by the petitioner's counsel, it would be appropriate to reproduce Section 41 as under:--
"41. Transfer by ostensible owner. Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the Transferor was not authorized to make it: Provided that the transferee, after taking reasonable care to ascertain that the Transferor had power to make the transfer, has acted in good faith."
"It is a principle of natural equity which must be universally applicable that, where one man allows another to hold himself out as the owner of an estate and a third person purchases it, for value, from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice, of the real title; or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it."
This exception which is the form of equitable doctrine of estoppel as embodied in Article 114 of the Qanun-e-Shahadat Order, 1984 with a distinction as intentional inducement and unintentional inducement as in Article 114 ibid that a person pleading estoppel should act on the representation of the other while under Section 41 ibid that if a person allows the other to hold himself out as the owner of the property and the 3rd person purchases it for value from the ostensible owner in the belief that he is the real owner then the latter shall not be permitted to recover upon his secret title. In this he shows that the purchaser had direct or constructive notice of his ownership.
In order that this section may apply, it must be shown that (a) the Transferor is the ostensible owner. (b) He is so by consent express or implied of the real owner. (c) The transfer is for consideration. (d) The Transferee has acted in good faith, taking reasonable care to ascertain that the Transferor had power to transfer. If any one of the stated ingredients is wanting, then the Transferor will not be eligible to seek protection of equitable doctrine envisaged under Section 41 ibid. It is not attracted unless a party claiming benefit thereof has fulfilled the aforesaid four conditions.
The petitioner has taken the plea in para-2 of the preliminary objections of the written statement "Bona fide Purchase for consideration" but in the evidence, his attorney, appeared in the Court. He has not stated anything about either the plea taken under Section 41 ibid or about being a bonafide purchaser for consideration thus this plea was not substantiated at all. Even otherwise one of the foremost condition for the plea under Section 41 of the Act, that the Transferor must be shown as ostensible owner but here the transferor was neither in actual and physical possession nor he had been shown in the Revenue Record as in possession of his share put rather plaintiffs, or their predecessor had been shown to be in physical possession of the property in dispute. The possession of immovable property, with a title if any, by itself has been considered as a notice of title to the person interested in acquiring any right in the property as evident from the explanation (II) of Section 3 of the Transfer of Property Act 1882 which reads:--
"Explanation II.--Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof."
"a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it."
"14.--It has already been stated that the true owners were all along in possession and, therefore, this was a circumstance which called for further inquiry beyond merely looking into the entries appearing in the Revenue Records. There is no evidence on the part of the vendees to show that the true owners were not in possession throughout the period which we are considering here. The finding of the learned trial Judge on this point was not challenged by the vendees who had gone up in appeal, with the result that the learned District Judge had proceeded on the basis that the true owners were in possession. The learned Judge, however, did not examine the question whether this circumstance had any bearing on the scope of the inquiry which was incumbent upon the vendees in this case. Even in the authority relied upon by the learned counsel for the vendees it is clearly stated that:
"The purchaser need not go behind the revenue entries if there are no other circumstances creating a doubt with regard to the genuineness of these entries."
The fact that the true owner had all along been in possession of the land was, in my view, a sufficiently strong circumstance for the vendees to be put on their guard and to require them to make further inquiries beyond the entries made in the revenue records. This they failed to do with the result that this requirement of Section 41 was also not fulfilled by them.
For the foregoing reasons, I have come to the conclusion that the vendees--defendants Hassan and Piran Ditta were not entitled to the protection given by Section 41 of the Transfer of Property Act; on the contrary the plaintiff-appellants were entitled to have their suit decreed in its entirety.----"
The facts of "Kanwal Nain's case" (Supra) are quite distinguishable and that case is of no help to the petitioner. In that case, the father and his two sons, had jointly purchased a piece of land through a registered sale-deed in equal shares. The two sons sold their share and the father filed a declaratory suit on the ground that he was the real owner and his two sons were benamidar as it was he who had paid the sale consideration. At the trial, several issues were framed and two relevant issues were Issues Nos. 3 and 4, the former relating to the benmai transaction and the later relating to the plea the defendant being bona fide purchaser. The trial Court, gave finding about the benami transaction in favour of the father holding him the real owner of the property but the transferee was held to be bona fide purchaser for value without notice of the title of their father. However, on appeal, the finding of the trial Court on the issue of bona fide purchase was affirmed while the appeal of plaintiff was dismissed. The High Court, on revision set-aside the findings of the two Courts below and held that the transferee had not acted with reasonable case in acquiring property from the transferor. The Supreme Court was of the view that the findings given by the High Court were not supportable from the evidence and the transferor was the ostensible owner who had purchased the property through a registered sale-deed and one of them was shown to have paid the sale consideration.
While in the present case, not to speak of any authentic document in favour of the transferor, rather the one which is available on record goes against them and favours the plaintiffs i.e. The decree of the Court coupled with possession both at the spot as well as in the Revenue Record and more so when, as already stated the petitioner has miserably failed to substantiate the plea under Section 41 of the Transfer of Property Act by not proving any of the four ingredients mentioned in the section. He cannot be considered as a bona fide purchaser for consideration, the plea taken by him in written statement, as he had the notice of the title of the plaintiffs in terms of explanation-II to Section 3 and also the other relevant para of Section 3 referred to above.
Resultantly, in view of the aforesaid discussion, we see no force in this petition and the same is dismissed. Leave declined.
(A.A.) Leave refused.
PLJ 2006 SC 629 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J.; M. Javed Buttar and Hamid Ali Mirza, JJ.
SH. MUHAMMAD TASLEEM--Petitioner
versus
STATE--Respondent
Criminal Petition No. 398 of 2005, decided on 4.1.2006.
(On appeal from the order dated 24.11.2005 in Criminal Misc. No. 8095-B of 2005 passed by the Lahore High Court, Lahore).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Control of Narcotic Substances Act, (XXV of 1997), Ss. 6, 7 8, 9(c), 14, 15 & 16--Constitution of Pakistan 1973, Art. 185(3) Bail, refusal of--Investigating department, after carrying out investigation in matter had placed name of the accused in Column No. 2 of the challan--Accused admittedly was owner of the Agency which was run by him and prima facie he would be responsible for "Hashish" found in consignment who had acted in dual capacity as exporter--Samples for obtaining chemical examiner's report where to be called from foreign country--Offence alleged against accused were punishable with death--Bail was declined. [P. 631] A
Malik Muhammad Qayyum, ASC, Mr. Shaukat Ali Mehr, ASC and Mr. Arshad Ali Chaudhry, AOR for Petitioner.
Nemo for State.
Date of hearing: 4.1.2006.
Judgment
Hamid Ali Mirza, J.--This criminal petition for leave to appeal is directed against judgment dated 24.12.2005 in Criminal Misc. No. 8095-B of 2005 (Sh. Muhammad Tasleem vs. The State), whereby the said criminal misc. application was dismissed thereby bail to the petitioner was declined by the learned Single Judge of the Lahore High Court, hence this petition.
Brief facts of the case as stated in the FIR are that Director General Intelligence, Customs & Excise, Islamabad, through a written letter dated 23.7.2005 informed the Customs Department that Container 320945-2 which was received in Saudi Arabia containing marble tiles and electric wire rolls when checked on 9.4.2005 Hashish weighing 1030.309 Kilogram was found therein and the same was exported under Licence No. 8/2004 of petitioners agency. In view of the said information received, FIR No. 50/2005, dated 24.8.2005 was registered at Railway Police, Mughalpura, Lahore for offences under Sections 6, 7, 8, 9 (c), 14, 15, 16 of the Control of Narcotic Substances Act, 1997 and petitioner was arrested. The petitioner applied for his bail after arrest before the Additional Sessions Judge, Lahore who declined to grant him bail vide order dated 27.10.2005. The petitioner thereafter preferred Criminal Misc. Application No. 8095-B of 2005 before the Lahore High Court, Lahore, which application was also dismissed vide impugned order.
We have heard learned counsel for the petitioner and perused the impugned order and the record.
The only contention of learned counsel for the petitioner is that there is delay in lodging the FIR and the name of the petitioner is not mentioned in it nor any role of loading or buying of alleged electric wires containing Hashish has been attributed to the petitioner. He further submitted that there is no material against the petitioner implicating him in the commission of crime. He has referred to para-10 of the Challan contending that even the petitioner was not knowing about the export of alleged Hashish through the Cargo cleared by the Clearing Agency of the petitioner.
We do not find any merit and substance in the said contentions.
Admittedly name of the petitioner is mentioned in Column No. 2 of the challan which itself would show that the Investigating Agency after carrying out investigation in the matter placed the name of the petitioner in Column No. 2 of the challan. Admittedly he is the proprietor/owner of the Clearing Agency "M/s. Crystal Clear" which is run by him would be prima facie responsible of Hashish having been found in the consignment keeping in view of fact that he has acted in dual capacity as exporter as well as clearing agent. The case has not proceeded so far, as such relevant material viz. chemical examiner's report, samples which the prosecution has to produce would be collected from Saudi Arabia as stated in Challan. In the circumstances, it cannot be said that the petitioner has made out a case for grant of bail in the matter for future enquiry, hence no case for grant of bail is made out considering also that the alleged offences being punishable to death. Resultantly we find no case for grant of leave to appeal is made out, which is declined, and the petition is dismissed.
(R.A.) Leave to appeal refused.
PLJ 2006 SC 631 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar and Mian Shakir Ullah Jan, JJ.
KHURSHID AHMED--Petitioner
versus
STATE--Respondent
Jail Petition No. 262 of 2003, decided on 8.11.2005.
(On appeal from the judgment dated 28.4.2003 of the Lahore High Court, Multan Bench, Multan, passed in Crl. Appeal No. 176 of 1995)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Constitution of Pakistan (1973), Art. 185(3)--Conviction and sentence of death for offence of murder as maintained by High Court, assailed--Appreciation of evidence--Petitioner from stage of framing of charge has all along admitted to have killed deceased persons due to "ghairat"--Petitioner's defence plea in juxtaposition to case of prosecution stands at better footing, truthful and confidence inspiring--Ocular evidence of injured witnesses stands fully corroborated by motive, medical evidence and evidence of recovery of weapon of offence and matching of such weapon with empties recovered from place of occurrence--Concurrent findings of two Courts below do not justify interference with the same--Cruel, gruesome and brutal manner in which petitioner had taken lives of seven deceased and seriously injured prosecution witnesses does not deserve any leniency--Leave to appeal was refused in circumstances. [P. 635] A
Sheikh Muhammad Saleem, ASC for Petitioner.
Nemo for Respondent.
Date of hearing : 8.11.2005.
Judgment
Abdul Hameed Dogar, J.--This Jail Petition is directed against judgment dated 28.4.2003 passed by a learned Division Bench of Lahore High Court, Multan Bench, Multan, whereby Criminal Appeal No. 176 of 1995 filed by the petitioner was dismissed and the conviction and sentence awarded by the learned trial Court were maintained.
Briefly, stated, the facts of the case are that prior to the occurrence, Jan Muhammad deceased contracted second marriage with Mst. Ghulam Jannat, the sister of petitioner Khurshid after the death of his first wife Mst. Nawaban, mother of Mst. Bashiran. 4/5 days prior to the occurrence petitioner came to the Chak No. 41/EB on leave from Murree where he was serving. He wanted to take his wife Mst. Bashiran alongwith him to Murree but Jan Muhammad and Mst. Ghulam Jannat did not agree with his idea as Mst. Bashiran was not mentally matured but they compelled the petitioner to take his wife to his village. On 27.3.1993 an altercation also took place but the matter was patched up by PW Ghulam Farid. On the same day at 11.30 a.m. petitioner while armed with a rifle entered the house of Jan Muhammad and raised a lalkara that today nobody will be spared. Complainant Khurshid and PW Ghulam Farid tried to catch the petitioner. In the meanwhile Jan Muhammad tried to run outside to save himself petitioner fired two shots upon Jan Muhammad who fell down and died on the spot. Petitioner also fired at Mst. Bashiran who also died inside the Ihata of Muhammad Siddique Jabhail. He then fired at Mst. Saima and Mst. Nasim in the same Ihata and killed them. In the meanwhile Mst. Ghulam Jannat in order to save her life and that of her children, namely, Mst. Parveen and Sharif entered the house of Shahra Pawali and bolted the door from inside but the petitioner fired at the door and opened it and fired and Mst. Ghulam Jannat and her two children. The petitioner also fired at complainant Khurshid and Ghulam Farid and then fled away from the spot. Three injured, namely, Naseem, Khurshid complainant and his son Farid were shifted to Civil Hospital, Qaboola Sharif where Naseem succumbed to the injuries. The matter was reported by complainant Khurshid at Police Station Qaboola Sharif, District Sahiwal.
Autopsy on the dead bodies of Mst. Naseem, Mst. Ghulam Jannat, Mst. Bashiran, Jan Muhammad, Saima, Parveen and Muhammad Sharif was conducted by Dr. Muhammad Sabir Chaudhry (PW-3) and had mentioned the injuries on each of them in his post-mortem report and had opined that all the seven deceased were killed with a fire-arm weapon.
Petitioner was arrested on 27.3.1993. He led to the recovery .7 MM rifle which was taken into possession and after completion of the investigation, he was sent up to face trial.
In order to establish its case, the prosecution examined 05 PWs in all.
The petitioner in his statement recorded under Section 342 Cr.P.C. took the plea which is as under:
"I was married with Mst. Bashiran daughter of Jan Muhammad and my sister Mst. Ghulam Jannat was married with Jan Muhammad who had five children. My in-laws were not sending my wife with me. Through Hameed Hinjra they sent my wife with me. Afterward I was posted at Murree. I came back to my village to bring my wife. I asked my in-laws that they should send Mst. Bashiran with me to Murree where I was posted. They refused, I went to Hameed Hinjra before this incident and on his intervention my wife was sent to my house in the village. For the second time, I sought his help on the refusal of my in-laws. He told me that my in-laws were not sending my wife with me because they were running a brothel in their house. Wife of Ghulam Farid, my sister, my wife Mst. Bashiran, Ghulam Jannat, Mst. Bushra and the wife of Ghulam Farid PW were being used for prostitution and on that I quarreled with Hameed Hinjra that he was telling a lie. At this Abdul Razzaq and Sharif, the neighbours of Hameed Hinjra came there. I then came to the house of my in-laws, where I met Jan Muhammad, Khurshid and Ghulam Farid and asked why they were not sending my wife to Murree and told them that they were refusing because they were running a brothel in their house upon which they insulted and humiliated me and confirmed that they were running a brothel and that I should have no concern with their activities. They also admitted that the children of Mst. Ghulam Jannat were also illegitimate and they threatened and ousted me from the house. I lost my temper and passions and under the stress of grave and sudden provocation, I killed seven persons and injured Khurshid and his son Ghulam Farid who were supported Jan Muhammad. I was carrying rifle with me because at the time of this occurrence, I had got enmity in the village. With this rifle, I committed the murders and injured two persons".
He, however, neither examined himself on Oath, as required under Section 340(2) Cr.P.C. nor led any evidence in defence.
On the conclusion of the trial, the learned trial Court vide judgment dated 18.9.1993 convicted the petitioner under Section 302(b) PPC and sentenced to death as Qisas on seven counts. He was also convicted under Section 324 PPC and sentenced to ten years on two counts with a fine of Rs. fifty thousand on two counts or in default to suffer one year R.I. more. In case of realization of fine, Rs. 50,000/- each shall be paid to injured PWs Khurshid and Ghulam Farid. Feeling aggrieved, petitioner preferred appeal before the learned High Court which was dismissed vide impugned judgment.
We have heard Sh. Muhammad Saleem, learned ASC for the petitioner and have gone through the record and the proceedings of the case in minute particulars.
It is mainly contended by the learned counsel for petitioner that the impugned judgment is erroneous and unsustainable in law. He maintained that the ocular evidence is contradicted by the medical evidence and suffers from material discrepancies. He pointed out that the case of the prosecution is based on interested and inimical evidence, as such, it requires independent corroboration which is lacking in this case. According to him it was an unseen incident and there is no independent witness produced at trial to substantiate the case.
From the stage of framing of the charge, the petitioner has all along admitted to have killed namely, Jan Muhammad, Mst. Ghulam Jannat, Mst. Bashiran, Mst. Saima, Mst. Parveen, Muhammad Sharif and Mst. Nasim due to `Ghairat' as deceased used to run brothel in their house where his wife Mst. Bashiran was also residing who was not allowed to go with him to Murree. It would be pertinent to reproduce the admission of guilt made by him at the time of framing of charge:
"I deny the charge but I want to explain certain facts. I was married to Mst. Bashiran and her parents were adamant to send her with me. I am a soldier. I came to know that Jan Muhammad, Ghulam Farid and Khurshid son of Rukan Din had opened a brothel in the house and my wife Mst. Bashiran, my sister Ghulam Jannat and Mst. Bushra wife of Ghulam Farid PW were being used for the purpose of prostitution. I felt it my insult and out of `Ghairat' picked a .7 MM rifle and killed all these 7 persons, namely, Jan Muhammad, Mst. Bashiran, Mst. Ghulam Jannat, Mst. Saima, Muhammad Sharif, Mst. Parveen and Mst. Nasim and injured Khurshid and Ghulam Farid PWs who tried to run away. I fired at them and they were injured. Being a bashful man I have committed these murders and have injured the above said two persons.
To substantiate the above plea, the petitioner neither examined himself on Oath nor produced any evidence to the above stance. When examined this plea in juxtaposition to the case of the prosecution, we are of the considered opinion that the case of the prosecution stands at better footing and truthful and confidence inspiring. The ocular evidence of injured witnesses, namely, Khurshid complainant and Ghulam Farid is fully corroborated by motive, medical evidence and the evidence of recovery of .7 MM and its matching with empties recovered from the place of occurrence. There being concurrent findings of two Courts below we do not find any justification to interfere with the same. Learned counsel for petitioner though argued at length yet could not refer to a single extenuating circumstance to take lenient view in the matter. The cruel, gruesome and brutal manner in which petitioner has taken the lives of seven deceased and seriously injured the PWs namely Khurshid and Ghulam Farid does not deserve any leniency. The learned counsel for petitioner has failed to point out any illegality or irregularity in the impugned judgment to warrant interference by this Court.
For what has been stated above, the petition being devoid of force is dismissed and leave to appeal refused.
(A.A.) Leave refused.
PLJ 2006 SC 635 [Appellate Jurisdiction]
Present: Javed Iqbal and Raja Fayyaz Ahmed, JJ.
WALA KHAN--Petitioner
versus
GOVERNMENT OF BALOCHISTAN through CHIEF SECRETARY, CIVIL SECRETARIAT, QUETTA and 3 others--Respondents
C.P. No. 87-Q of 2005, decided on 27.10.2005.
(On appeal from the judgment dated 27.6.2005 of High Court of Balochistan, Quetta passed in Constitutional Petition No. 523/2000)
(i) Balochistan Model Residential Secondary School Ordinance (XVII of 1983)
----S. 10--Constitution of Pakistan 1973, Arts. 199 & 185(3)--Writ in the nature of mandamus for enforcement of direction of Secretary Education for initiation of fresh inquiry to be conducted against petitioner, sought to be implemented--Secretary Education, however, has not been described as original, appellate or revisional authority or an authority competent and empowered to hear, decide and to issue direction to respondent authorities on any representation, appeal or review petition nor he can independently issue any direction, therefore, direction in question, issued by Secretary Education does not result into creating any legal right in favour of petitioner enforceable through writ--Essential for issuing writ in the nature of mandamus were lacking completely--No exception can be taken to order of High Court refusing to issue writ in the nature of mandamus--Leave to appeal was refused. [P. 643] A
(ii) Constitution of Pakistan (1973)--
----Art. 199--Writ in the nature of mandamus--Scope and purpose of writ of mandamus explained and illustrated. [P. 643] B
Mr. Muhammad Aslam Chisti, Sr. ASC for Petitioner.
Nemo for Respondents.
Date of hearing : 27.10.2005.
Judgment
Raja Fayyaz Ahmed, J.--By this Civil Petition leave to appeal has been sought for from the judgment dated 27.6.2005 of the learned Division Bench of the High Court of Balochistan dismissing Constitutional Petition No. 523/2000 filed by the petitioner.
"(i) to declare that in view of direction for second inquiry vide letter dated 5.4.2000, petitioner stood reinstated in service.
(ii) to direct Principal Balochistan Residential College, Loralai to comply with direction of Secretary Education to either hold inquiry or to reinstate petitioner in service.
(iii) to direct Secretary education to implement his own orders.
(iv) to declare that action of respondents are not according to law; further declaring that order of second inquiry dated 5.4.2000 could not be withdrawn or altered to petitioner's disadvantage".
With the averments that petitioner was initially appointed as Plumber in the year 1991 and subsequently, he was appointed by the competent authority as Electrician by altering the nature of his appointment in BPS-6 however; in the attendance register he was still shown as Plumber although; he has been through out performing his duties both of Plumber Electrician in the pay scale equivalent to national pay Scale No. 6. However, it was alleged in the writ petition that the previous Principal had personal grudge against the petitioner evident from so many instances of harassment so much so; that petitioner was involved in a criminal case under Section 9/14 of the Hudood Ordinance, 1979 but eventually, the learned Federal Shariat Court acquitted the petitioner by means of judgment dated 29.10.1995. Following his acquittal from criminal charges, petitioner was stated to have been allowed to join his duty; but soon thereafter was served with a Show Cause Notice that he had admitted to have removed goods from the College. The allegations were denied but inquiry was entrusted to the police and report dated 25.10.1998 was submitted, exonerating the petitioner, yet petitioner's salary was withheld with effect from 25.8.1998 and therefore, the petitioner stated to have submitted a number of applications but with no response although; he also approached to the higher authorities in such behalf. Further, the case of the petitioner was that with effect from the date of withholding of his salary until 14.9.1999 he was kept in dark about the service and on 14.10.1999 he was informed by the office clerk that his services were terminated and therefore, salary could not be given to him thereafter, he again approached to the Principal of the College personally and through notables requesting that either his pay be released to him or the termination order be provided to him and such request was also stated to have also been made to the Commissioner, Zhob Division, at Loralai but with no result. The petitioner eventually, on 4.11.1999 filed Writ Petition No. 1036/99 against the Principal of the College and the Commissioner, Zhob Division at Loralai in which the following reliefs were claimed:--
"(i) To declare that petitioner is entitled for salary from month of August, 1998 till today (4.11.1999).
(ii) To declare that withholding of salary of petitioner is illegal and unconstitutional.
(iii) To declare that act of Respondent No. 1 for not supplying copy of any order passed against petitioner is against law, (and) petitioner is entitled to have copy of any order passed against him.
(iv) Any other relief which this Honourable Court may deem fit and proper in the circumstances of the case may also be awarded with cost of petition."
"No. 14-BRC (PF)-96/490.--Consequent upon recommendation of the Inquiry Officer and approval of the Competent Authority, the services of Mr. Wala Khan electrician are hereby terminated with immediate effect. He will be paid dues up to 7.11.1998"
"Be that as it may, fact remains that on 7.11.1999, service of petitioner was terminated therefore, in the instant petition no further relief can be granted. However, petitioner may seek proper remedy save in accordance with law."
"Record of the case may please be called for an after perusal of the same, impugned order of termination dated 7.11.1998 passed by Principal Balochistan Residential College, Loralai may please be set aside and petitioner be reinstated with all back benefits, in the interest of justice and equity."
"In compliance with Letter No. 7-5/2000. E.Dn/1105 dated 5.4.2000 received from Secretary Education, Quetta, a Letter No. 4-BRC (BF)-2000 dated 20.4.2000 alongwith copy of decision of the Honourable High Court of Balochistan has been sent to the worthy Secretary for further guidance and necessary action."
Sd/-
Administrative Officer
Balochistan Residential College
Loralai."
Thereafter, the petitioner stated to have submitted application 30.5.2000 to the Secretary Education requesting for issuance of direction to the Principal, Balochistan Residential College, Laralai for compliance of letter dated 20.4.2000 and pending decision of inquiry, he may be reinstated in service but this application stated to have been presented in person was not entertained, therefore, the same was sent by Registered Post and Courier Service but with no response, therefore, on these other averments, the petitioner filed Constitutional Petition No. 523/2000 in the nature of mandamus in which he claimed the reliefs reproduced in Para No. 2 supra.
It is, inter alia, contended by Mr. Muhammad Aslam Chisti, learned Sr. ASC for the petitioner that the direction issued by the Secretary Education, Government of Balochistan to the Principal, Balochistan Residential College/Respondent No. 3 as contained in its letter dated 5.4.2000 by implication amounts to the reinstatement of the petitioner in service and, therefore, he is entitled to the benefit of salary etc. as claimed in the writ petition dismissed by the learned High Court. The learned counsel for the petitioner strenuously contended in the light of the documents filed with the memo petition that as the direction to conduct another inquiry against the petitioner by appointing an impartial person as an Inquiry Officer and the findings of the Inquiry Officer be furnished to the department was made by the Competent Authority, therefore, the petitioner was entitled for the reliefs claimed in the writ petition or in the alternative the order passed by the Secretary Education being the Competent Authority be directed to be implemented in its letter and spirit. He next argued that termination of the petitioner from service vide letter dated 7.11.1998 was made with the approval of the Competent Authority i.e. Secretary Education and the petitioner as per his appointment letter was also shown to be governed in disciplinary matters under E & D, Rules, and the statute i.e. Balochistan Model Residential Secondary School Ordinance 1983 (Balochistan Ordinance No. XVII of 1983) and therefore, the `Principle of master and servant' does not apply to the case of petitioner in respect of termination of his service. Mr. Muhammad Aslam Chisti, Sr. ASC further argued that consequent upon the dismissal of the earlier W.P. No. 1036/99 on 8.12.1999 the petitioner approached to the Competent Authority by filing review petition on 30.12.1999 and the Secretary Education after having taken into account all the facts and circumstances of the case, scrutinizing the documents and proceedings taken by the Principal and College authorities culminating into the termination of the petitioner from service passed, the order for holding a fresh inquiry into the allegations as levelled in the Show Cause Notice dated 2.9.1998 by an impartial Inquiry Officer as contained in the letter dated 5.4.2000 addressed to the Principal of the College but such directions despite repeated applications moved by the petitioner were not complied with, neither in the earlier inquiry proceedings if any; conducted by the Committee, the petitioner was informed nor was afforded any opportunity to defend himself, consequently; the Secretary Education/Respondent No. 2 being the Competent Authority in exercise of powers vesting in him under the law issued the direction of conduct fresh inquiry hence, the petitioner claimed appropriate reliefs in writ petition. Mr. Muhammad Aslam Chisti, Sr. ASC also submitted that after conclusion of arguments in writ petition counter affidavit was filed by the Respondent No. 2, therefore, CMA was filed by the petitioner praying therein that the matter may be reheard in the light of the counter affidavit filed subsequently and such fact was also noted in the impugned judgment of the learned High Court with the observation that the Court will take into account the request made in the CMA but the judgment of the learned High Court is silent on the point which consequently; renders the same as not sustainable as the petitioner was not heard in view of the counter affidavit.
The contentions put forth noted on above have been considered in the light of the documents filed with the memo petition. The petitioner was initially appointed vide office dated 15.3.1991 for a period of six months extendable for another period of six months and on efficient performance of duties can be considered for appointment on permanent basis. Also, as per Condition No. 5 of the appointment order, he can be terminated from service without notice in case the employee has been found to be inefficient, indisciplined and does not enjoy a good moral character whereas; as per Condition No. 4 of the appointment order, the law, regulations/by laws and E & D Rules relating to the Institution to be applicable to the appointee. The petitioner was terminated from service with immediate effect vide order dated 7.11.1998 on the recommendations of the Inquiry Officer and approval of the Competent Authority which was assailed in Constitutional Petition No. 1036/99 before the High Court Balochistan and the learned High Court after recording the respective contentions of the parties learned counsel, in view of the petitioner having been terminated from service held that no further relief can be granted however; observed that the petitioner may seek appropriate remedy in accordance with law, thus, the petition was dismissed with the above noted observation. Consequent upon dismissal of the above mentioned writ petition, the petitioner filed review petition before Secretary Education, Government of Balochistan on 30.12.1999 against the order of termination of his service. Later on; applications were also filed for an urgent action into the matter. It appears that as a result of the review petition and the subsequent applications submitted to the Secretary Education seeking for his reinstatement in service, a letter dated 5.4.2000 was addressed to the Principal, Balochistan Residential College, Loralai on behalf of the Secretary Education which reads as under:--
"The undersigned is directed to refer to the subject noted above and to say that Mr. Wala Khan, a terminated employee of our Institute. Requesting for reinstatement in service (copy enclosed).
The undersigned is further directed to request you to conduct another enquiry against Mr. Wala Khan appointing an impartial person as enquiry officer and the findings thereof may be furnished to this department for submission to the competent authority."
The main contention of the learned counsel for the petitioner as to the effect of the direction of the Secretary Education being a Competent Authority and the nominee of the Governor, as contained in the letter dated 15.4.2000 sent to the Principal of the College sought to be enforced through writ filed in the High Court; it would be appropriate to note that initially, for the Establishment of Model Residential Secondary School Balochistan, Ordinance was promulgated by the Governor (Ordinance No. XVII of 1983) i.e. Balochistan Model Residential Secondary School Ordinance, 1983 which after its establishment subsequently was elevated to the status of Balochistan Residential College, Loralai. The Controlling Authority of the Board by virtue of the provisions of Section 9 of the Ordinance has been specified to be the Governor or his nominee, whereas; as soon as may be the Governor after the commencement of the Ordinance, to establish a Board for each of the institution to be called the Board of Governors of the Balochistan Residential College, as envisaged by sub-section (1) of Section 4 of the Ordinance and the composition of the Board has been provided in Section 5 to be consisting of not more than 11 members to be appointed by the Governor who shall appoint a Chairman and a Vice-Chairmen of the Board from amongst the members appointed under sub-section (1) of the above said Section and the Principal of the College shall be ex-officio member of the Board as provided by sub-section (5) of Section 5 of the Ordinance, whereas; the members of the board shall comprise of non-official members and the official members to be appointed by designation while the former to hold office for a period of three years who shall be eligible for further appointment by virtue of Sections 3 and 4 of the said Ordinance. The powers of the Controlling Authority have been specified in Section 10 of the Ordinance and; the Government by virtue of sub-section (1) of Section 19 has been invested with the powers to make rules for carrying out the purposes of the Ordinance whereas; in particular and without prejudice to the generality of the foregoing power, such rules may provide for other matters specified in sub-section (2) of the said section. Section 20(1) of the Ordinance contemplates that the Board subject to the approval of the Government may frame regulations not inconsistent with the provisions of the Ordinance and the rules made thereunder to carry out the purposes of the Ordinance which may relate to other matters as specified in sub-section (2) of Section 20 of the Ordinance. The powers and the functions of the Board have been given in the Section 8 of the Ordinance.
The provisions of the Ordinance, the notification issued by the Government of Balochistan constituting Board of Governors under Section 4(1), Executive Committee constituted vide notification dated 31.3.1989 and the regulations framed under Section-20 of the Ordinance have been carefully and minutely gone through in order to appreciate the contentions of the learned counsel for the petitioner regarding enforcement of the direction of the Secretary Education through the writ of mandamus filed before the learned High Court for having been allegedly made by the Competent Authority i.e. Secretary Education who in his capacity as such; does not figure anywhere in the scheme of Ordinance No. XVII of 2003 nor has been conferred with any such authority or power under the Ordinance and the regulations framed thereunder by the Board to issue direction of any nature to the Principal, Board of Governors or the Executive Committee. The Secretary Education, Government of Balochistan has however, been notified as an ex-officio member of the Board of Governors by the Government of Balochistan vide notification 5.1.1988. No member, Chairman or Vice-Chairman of the Board of Governors individually in such capacity can exercise powers and functions invested in the Board by Section 8 of the Ordinance whereas; the Governor or his nominee shall be the Controlling Authority of the Board and in absence of his nominee the Governor to act as Controlling Authority of the Board. In the instant case, it has not been shown to us that Secretary Education, Government of Balochistan has been nominated/notified by the Governor as the Controlling Authority of the Board hence, it cannot be said that the Secretary Education in his capacity as the Controlling Authority of the Board issued the direction sought to be enforced though writ of mandamus nor within the scope of powers conferred upon the Controlling Authority under Section 10 of the Ordinance is competent to issue any direction in respect of a disciplinary matter pending or decided against an individual employee of the College to the Board for implementation. The petitioner has since through writ of mandamus sought for the implementation of the direction of the Secretary Education as contained in the letter dated 5.4.2000 addressed to the Principal of the College, therefore, it was incumbent on his part to show that the Secretary Education had the authority and the powers vested in him under the law to pass the direction sought to be implemented through the writ and the Principal of the College was bound and obliged to implement the same as a legal duty for having created a right in favour of the petitioner to seek its implementation. Undisputedly, the Secretary Education, Government of Balochistan has not been described an original, appellate or revisional authority or an authority competent and empowered to hear, decide and to issue direction to the Principal of the College on any representation, appeal or review petition nor has been independently under the scheme of the Ordinance, regulations framed by the Board he can issue such a direction hence, the direction so made by the Secretary Education does not result into creating of any legal right in favour of the petitioner enforceable through writ. The Secretary Education, Government of Balochistan as contended before us by the learned counsel being the Competent Authority issued the direction sought for to be implemented would mean that the authority was competent under the law, rules or the regulations framed under the Ordinance, so to have been designated as such; and invested with the powers to issue direction to conduct a fresh inquiry into the allegations in disciplinary matter hence, it must have nexus or relevancy to any provision of the law or the regulations and the rules if any; framed under the Ordinance which in the instant case is completely wanting on the subject, therefore, using the phraseology or terming the Secretary Education, Government of Balochistan as the Competent Authority would not mean or amount, the secretary Education to be Competent Authority to issue direction for holding a fresh inquiry and its non-implementation would result into the creating of a legal right in favour of the petitioner enforceable by law through writ on failure or refusal of the Principal to implement such direction.
It commands the person to whom it is addressed to perform some public or quasi public legal duty which he has refused to perform and which cannot be enforced by any other adequate legal remedy (Basu's Commentary on the Constitution of India, 6th Edition, Volume-1 referred). The essentials for issuing the writ in the nature of mandamus discussed herein above are lacking completely in the instant case, duly considered and dealt with appropriately by the learned High Court to which no exception can be taken, consequently, this petition being without any substance is dismissed. Leave is accordingly refused.
(A.A.) Leave refused.
PLJ 2006 SC 688 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Falak Sher and Nasir-ul-Mulk, JJ.
ISHTIAQ AHMAD SHEIKH and others--Appellants
versus
M/s. UNITED BANK LTD. and another-Respondents
C.A. Nos. 991, 992 of 2001, 441 to 447 of 2004, decided on 20.9.2005.
(On appeal from the judgments of the Federal Service Tribunal, Islamabad, dated 13.4.1999 passed in Appeal Nos. 621 & 622(R) of 1998, and Federal Service Tribunal, Karachi, dated 23.11.2000 passed in Appeal Nos. 99, 89(K), 90(K), 102(K), 103(K), 108(K) & 107(K) of 1998 respectively)
Constitution of Pakistan, (1973)--
----Art. 212--Bank employees--Dismissal on charges of misconduct--Lapses by appellants of negotiating export documents on "Received for Shipment" without production of bill of lading issued by captain of the ship resulting in making payments to exporter on letters of credit without goods, having been shipped on board and that appellants had failed to take pre-cautionary measures of verifying that goods had actually been shipped on board constituted the main charge--Respondents, however failed to mention any Rule or instruction which required appellants to ensure export of goods--Apparently, some senior officers of respondent establishment at its Headquarters were aware of negotiations of export documents on basis of letters of credit issued by foreign bank concerned and who had either impliedly or actively approved that practice--Such approval, of course, cannot completely exonerate appellants is as much as, negotiation of such documents was prime responsibility of concerned branch of respondent in which appellants were responsible employees--Conduct of senior officers of bank, however, mellows down extent of culpability of appellants--Impugned judgments were modified to the extent that penalty of appellants of dismissal from service was converted into compulsorily retirement from service from the date on which their orders of dismissal were passed. [Pp. 694 & 701] A & D
Constitution of Pakistan, (1973)--
----Arts. 212(3) & 184(3)--Phrase "public importance" appearing in Art. 212(3) of the Constitution as compared to phrase 'public importance" appearing in Art. 184(3)--Phrase "public importance" appearing in Art. 212(3) of the Constitution cannot be accorded restrictive meaning in view of very nature of jurisdiction, which deals with appeals by civil servants, a restricted defined class and not the public at large--For such reason meaning of phrase "public importance" appearing in Art. 212(3) of the Constitution cannot be equated with the same phrase used in Art. 184(3) of the Constitution which relates to original general jurisdiction of Supreme Court for enforcement of "Fundamental Rights". [P. 695] B
Constitution of Pakistan, (1973)--
----Art. 212(3)--Employees of Bank--Disciplinary action--Plea of denial of personal hearing before imposition of penalty--Show-cause notice issued to appellants, stated that they would have option to put in their written defence or personal hearing before inquiry officer--Appellants opted to put in written defence and gave detailed explanation in defence--Appellants failed to point out as to what prejudice had been caused to them for not being given personal hearing--Objection regarding personal hearing was thus, not sustained. [Pp. 697 & 698] C
1999 SCMR 2117; 1999 SCMR 1237.
Mr. Abid Hassan Minto, Sr. A.S.C. and Sh. Masood Akhtar, A.O.R. for Appellant (in C.A. No. 991/2001).
Raja Muhammad Akram, Sr. A.S.C. and Mr. Ejaz Muhammad Khan, AOR (absent) for Respondent No. 1 (in C.A. No. 991/2001).
Raja Ghafoor, A.O.R. for Respondent No. 2 (in C.A. No. 991/2001).
Mr. Abid Hassan Minto, Sr. A.S.C. and Sh. Masood Akhtar, A.O.R. for Appellant (in C.A. No. 992/2001).
Mr. Ejaz Muhammad Khan, AOR (absent) for Respondent No. 1 (in C.A. No. 992/2001).
Raja Abdul Ghafoor, A.O.R. for Respondent No. 2 (in C.A. No. 992/2001).
Mr. Niaz Ahmad Khan, A.S.C. and Mr. M. Shabbir Ghauri, AOR (absent) for Appellant (in C.A. No. 441/2004).
Mr. Kamal Azafar, Sr. A.S.C. and Mr. M.S. Khattak, A.O.R. for Respondent (in C.A. No. 441/2004).
Mr. Manzoor Ali Khan, A.S.C. for Appellant (in C.A. No. 442/2004).
Mr. Kamal Azfar, Sr. A.S.C. and Mr. M.S. Khattak, A.O.R. for Respondents (in C.A. No. 442/2004).
Mr. Manzoor Ali Khan, A.S.C. for Appellant (in C.A. No. 443/2004).
Mr. Kamal Azfar, Sr. A.S.C. and Mr. M.S. Khattak, A.O.R. for Respondents (in C.A. No. 443/2004).
Mr. Mazhar Ali B. Chohan, A.S.C. for Appellant (in C.A. No. 444/2004).
Mr. Kamal Azfar, Sr. A.S.C. and Mr. M.S. Khattak, A.O.R. for Respondents (in C.A. No. 444/2004).
Mr. Mazhar Ali B. Chohan, A.S.C. for Appellant (in C.A. No. 445/2004).
Mr. Kamal Azfar, Sr. A.S.C. and Mr. M.S. Khattak, A.O.R. for Respondents (in C.A. No. 445/2004).
Mr. H.A. Jafri, A.S.C. and Mr. Abdul Khair Ansari, A.O.R. for Appellant (in C.A. No. 446/2004).
Mr. Kamal Azfar, Sr. A.S.C. and Mr. M.S. Khattak, A.O.R. for Respondents (in C.A. No. 446/2004).
Mr. Niaz Ahmed, A.S.C. and Mr. Akhlaq AHmed Siddiqui, AOR (absent) for Appellant (in C.A. No. 447/2004).
Mr. Kamal Azfar, Sr. A.S.C. and Mr. M.S. Khattak, A.O.R. for Respondents (in C.A. No. 447/2004).
Date of hearing: 20.9.2005.
Judgment
Nasir-ul-Mulk, J.--By this common judgment, it is proposed to dispose of Civil Appeal Nos. 991, 992 of 2001 and 441 to 447 of 2004.
"4. Learned counsel for the petitioners has taken us through the impugned judgment and submitted that no particular rule or regulation has been either mentioned or relied upon which was said to have been violated, that documents appended by the petitioners with their replies to the charge sheet and produced in appeal before the Service Tribunal and their defence plea have been ignored and the case decided on the basis of news item about the alleged bad reputation of Tawakal Group, that all along the petitioners kept the higher authorities aware of the matter, therefore, they could not have been punished; that extreme penalty of dismissal from service could not be imposed, for at the most it was a case of negligence and not of corruption even if allegations for the sake of arguments without conceding are admitted as correct.
Leave is granted to consider, inter-alia, the above submissions."
These are three sets of appeals pertaining to three different branches of UBL, namely, Kuchary Bazar Branch, Faisalabad, Saleh Muhammad street Branch, Karachi and Bandar Road Branch, Karachi. The broad allegations and reasons for the termination of the appellants' services in all the appeals are materially similar though the facts to some extent are varying. Civil Appeal Nos. 991 and 992 of 2001, pertaining to Kutchery Bazar Branch, Faisalabad, are taken first.
The appellants who were respectively posted as Manager and Incharge Foreign Exchange Department of the Branch in the year 1993-94, were issued show-cause notice/charge sheet on 29.1.1995 by the Senior Executive Vice-President. Allegations against them were that between the period 12.8.1993 to 10.3.1994, they negotiated 356 bills amounting to Rs. 759.279 millions, drawn on M/s. Tawakkal Limited and their sister concern M/s. Ist Tawakkal Modaraba, against Letter of Credits, issued by M/s. East Mediterranean Trust and Banking Corporation, Turkey (for the sake of brevity hereinafter referred to as the "Mediterranean Bank"), out of which, the proceeds of 147 bills representing an amount of Rs. 424.402 millions, had not been repatriated though their date of maturity had passed by much earlier. The charge sheet spelt out the lapses on the part of appellants that resulted into loss to the bank, the main three of which are:
"(a) The L.C. opening bank was neither our bank's correspondent nor quoted on Banking Almanac, hence prior approval of competent authority was must for negotiating the bills drawn against such L.Cs., you, on your own accorded approval for negotiation of these bills without seeking the same from competent authority and jointly signed vouchers of 44 bills aggregating Rs. 124.785. As the matter did not come under your purview, you overstepped your jurisdiction by approving the negotiation of these bills.
(b) The credit report of exporters was not obtained prior to allowing the negotiation of such bills which was all the more necessary as M/s. Tawakkal Limited had opened their A/C., in your branch only 3 months prior to negotiation while the 4 bills of M/s. Ist Tawakkal Modaraba were negotiated on the very first day, their account was opened in the professional misconduct on your part.
(c) Though L.Cs. allowed B/Ls with "Received for Shipment" notation but as a precautionary measure and bank's procedure, the subsequent confirmation was not sought from the shipping company as to when the goods have actually been "shipped on board"."
The appellants submitted a detailed reply spreading over eight pages supported by documents, the main features of which are that Tawakkal Group was a renowned business entrepreneur of the country at the relevant time and their business had been secured by the senior officers of the bank with great efforts. That the bills mentioned in the show-cause notice were negotiated under the verbal permission/approval of the Zonal/Circle Offices and the Bank's statements regarding these transactions had been periodical by transmitted to the senior officers, who were constantly kept informed of all the negotiation business with the Tawakkal Group. Further that the Foreign Exchange Inspection Team had inspected the Branch on 24.10.1993 and had not raised any objection in their report to the negotiation of the export documents against the L.Cs. of the Mediterranean Bank. On the making of payments against the L.Cs. without the goods having actually been "shipped on board" the appellants explained that the bills were negotiable on presentation of the bill of lading with notation "received for shipment", in accordance with the terms of the L.Cs. which is also permissible under Article 27 of the Bank's Manual of Advances and UCP 400. The above reply was not found satisfactory and hence appellants' services were terminated.
Mr. Abid Hassan Minto, Sr. ASC, appearing for the appellants in C.A. Nos. 991 and 992 of 2001, read out Paras 4, 5 and 6 of the judgment of the Federal Service Tribunal and pointed out that the observations made regarding disrepute of the Tawakkal Group, was based on the personal knowledge of the Members of the Tribunal with no documentary support. That even if the Tawakkal Group had later on landed in some financial troubles, at the relevant time when the L.Cs. were being negotiated, the Group's reputation ranked high in the business circle of the country. The learned counsel pointed out that the findings of the Tribunal in para 6 of the judgment that the appellants had failed to follow the fax message of 6.3.1994, is based on erroneous assumption that the charge against the appellants was violation of the said direction, whereas, in fact, no L.C. of the Mediterranean Bank was negotiated after the said date, when the Head Office directed to put stop all such negotiations. The learned counsel had further assailed the observations made by the Tribunal regarding conduct of the appellants that they had negotiated the bills the day the Tawakkal Group opened their account in the Branch. The learned counsel argued that the business credibility of a concern may be otherwise be widely known and would not necessarily depend upon the length of their clientage with a particular bank.
We found the above contentions valid. The Tribunal had blamed the appellants for dealing with the Tawakkal Group when, "the market reputation of the Tawakkal Group which was known to almost everyone in Pakistan, who reads newspaper. The party had long earned ill-repute due to many fraudulent dealings in privatisation and other activities". The Tribunal delivered the judgment in the year 1998 and the remarks regarding reputation of the Tawakkal Group may have some truth at that time but there is nothing on record regarding their such reputation during the year 1993-94. In any case, impression gathered from newspaper reports can hardly be made basis for judicial findings, more so, when no reference was made to any such report.
The fax message was 6.3.1994 sent by the International Division of the United Bank Limited, Head Office, Karachi, to all Circle Executives to inform them of the decision that export documents drawn under L.Cs. of non-correspondent Bank/Financial Institutions were not be negotiated and they were to be advised to ensure compliance. The message also advised as to how the cases of prime clients might be honoured after clearance from the International Division. It appears that when the amounts of a number of L.Cs. issued by the Mediterranean Bank in favour of Tawakkal Group, were not realized, the Head Office got alerted and sent the above directions. According to the details of L.Cs. negotiated at the Kutchary Bazar Branch, and for that matter, the other two branches involved, no export bill was negotiated after 6.3.1994. Even the charge sheet did not allege violation of the direction given in the fax message. The Tribunal thus proceeded on the wrong assumption of violation of the fax message by the appellants.
Raja Muhammad Akram, Sr. ASC, representing the respondent Bank in the said two appeals, argued forcefully the lapses by the appellants of negotiating export documents on "received for shipment", without production of the bill of lading issued by the Captain of the Ship, with the result that the payments were made to the exporter on the L.Cs. without the goods having been shipped. Mr. Kamal Azfar, learned Sr. A.S.C. appearing for the respondent, Bank, in the other appeals, to substantiate the said contention, referred to the UBL's Inspection Circular No. 27 dated 10.1.1991, issued inter alia to the Managers of the Branches, dealing with the foreign exchange, titled "Irregularities repeatedly committed at branches handling foreign exchange transactions" Sr. No. 46 of which reads as under:
"46. Sometimes "Received for Shipment" bills of lading are negotiated which are not documents of title to goods. Exporters should be asked to submit "on Board" bills of lading for negotiation."
a' andb' of which states:--"(a) Unless a credit specifically calls for an on board transport document or unless inconsistent with other stipulation(s) in the credit or with Article 26, banks will accept a transport document which indicates that the goods have been taken in charge or received for shipment.
(b) Loading on board or shipment on a vessel may be evidenced either by a transport document bearing wording indicating loading on board a named vessel or shipment on a document stating "received for shipment", by means of a notation of loading on board on the transport document signed or initialled and dated by the carrier or his agent, and the date of this notation shall be regarded as the date of loading on board the named vessel or shipment on the named vessel."
The above article permits acceptance by the bank of transport documents stating, received for shipment". It was probably on account of the above article that the charge against the appellants on this account does not refer to violation of any instruction or rule by the appellants as is evident therefrom "Though L.Cs. allowed B/Ls with "Received for shipment" notation but as a precautionary measure and bank's procedure, the subsequent confirmation was not sought from the shipping company as to when the goods have actually been "shipped on board". The charge reproduced above, thus admit that the L.Cs. allowed payments on receipt of documents with endorsement "received for shipment" and that the appellants had failed to take precautionary measures of verifying that the goods had actually been shipped on the board. On behalf of the respondents no instructions or rules had been mentioned that required Managers of the Branches negotiating L.Cs. to ensure the export of the goods. The findings of the Tribunal against the appellants on the afore-stated three points are, therefore, untenable.
At this stage, it would be appropriate to advert to a preliminary objection raised by Raja Muhammad Akram, learned Sr. ASC, to the maintainability of the appeals on the ground that the jurisdiction of this Court under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, is restricted to substantial question of law of public importance, whereas the question raised in the present appeals cannot be termed to be of "public importance" and thus on this score alone, the appeals are liable to be dismissed. The meanings of "public importance" in the context of jurisdiction of the Supreme Court of Pakistan, under Article 212(3) of the Constitution has been settled by this Court in "Lahore High Court v. Muhammad Jahangir Khan Goraya (1999 SCMR 2117)", where it was held "If a Tribunal exercising exclusive jurisdiction omits to take into consideration material factors or interprets admitted facts in a manner not warranted by law or fails to pass a valid judgment then a question of law of public importance does arise for keeping such a Tribunal within its jurisdiction." In view of the discussion made above, regarding some of the findings of the Tribunal, we have no doubt that the Tribunal had stepped out of its jurisdiction by taking into consideration matters which it was not entitled to take and by proceeding on a totally erroneous assumption of facts. The phrase "public importance" appearing in Article 212(3) of the Constitution of the Islamic Republic of Pakistan, 1973, cannot be accorded restrictive meanings as the learned counsel for the Respondent Bank would like us to hold, in view of the very nature of the jurisdiction, which deals, in the present case, with appals by the civil servants, a restricted defined class, and not the public-at-large. For this reason the meaning of the phrase "public importance" appearing in this Article cannot be equated with the same phrase used in Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973, which relates to the original general jurisdiction of the Supreme Court of Pakistan, for the enforcement of Fundamental Rights.
Before adverting to the contentious issues regarding negotiation by the appellants of L.Cs. issued by non-correspondent Bank without permission of the competent authority, it will be appropriate to now advert to the charges framed against the appellants in the remaining seven appeals, arising from a common judgment of the Federal Service Tribunal. Nisar Ahmad Ansari, Umar Suleman, Fayyazuddin and Zahid Hameed, respectively appellants in Civil Appeal Nos. 441, 444, 445 and 446 of 2004, were at the relevant time posted as second Officer, Manager and Officer Foreign Exchange division, at the Saleh Muhammad Street Branch, Karachi. They were charge sheeted on the same day on 2.5.1994. They were alleged to have negotiated/allowed to negotiate 51 bills drawn by M/s. National Garments (Pvt.) Ltd., Sister concern of M/s. Tawakkal Group, during the period 21.2.1993 to 29.7.1993, the L.Cs. having been issued by the East Mediterranean Trust & Banking Corporation Turkey, which was a non-correspondent Bank and not quoted in the Banker's Almanac. The charge alleged that 16 of the 51 bills remained unpaid after their maturity, resulting in loss of Rs. 32.430 Millions. The appellants submitted their separate replies to the charges, which did not persuade the inquiry officer and thus their services were terminated.
Mr. Niaz Ahmed Khan, learned A.S.C. appearing for Nisar Ahmed Ansari, submitted that the appellant had countersigned only two vouchers as Second Officer of the Branch and further that the amount pertaining to the said vouchers had been realized. He further pointed out that the services of the appellant were terminated just two days prior to his attaining the age of superannuation.
Mr. Mazhar Ali B. Chohan, learned ASC, appearing for Umar Suleman and Fayyazuddin, referred to the written permission dated 29.4.1993 by the International Division of UBL for negotiating L.Cs. opened by the Mediterranean Bank. The learned counsel submitted that only four bills had been negotiated prior to the said permission. It was pointed out that all the 16 export bills, proceeds of which were not realized, were negotiated after the permission was granted on 29.4.1993. Mr. H.A. Jafry, learned ASC appearing for Zahid Hameed submitted that the bills countersigned by the appellant had been fully realized after maturity and added that even the Tribunal found the appellant guilty of omission and thus the termination of the appellant's services was not justified.
Appeal Nos. 442, 443, 447 of 2004 have been filed by Zahid Umar Farooqui, Muhammad Feroz and Muhammad Yaqoob, the former two were posted as Officers Foreign Exchange division and the third as Accountant in the Department, Bunder Road, Karachi, Branch. The charges against them also pertained to negotiation of bills numbering 54 between 26.6.1993 and 28.8.1993, drawn by the Sister Concern of M/s. Tawakkal Group, issue by the same Mediterranean Bank, 51 of them without prior approval of the competent authority and three of the Bills Nos. 1613, 1614 and 1615 aggregating 0.252 Million U.S. Dollars were, though purchased on 2.8.1993, after permission was granted on 29.7.1993, but without sufficient guarantee and the bills remained unpaid. The defence taken by the appellants in their respective replies did not find favour of the Inquiry Officer resulting in the termination of their services.
Mr. Manzoor Ali Khan, learned ASC for the appellants submitted that there was no allegation against the appellant of corruption or of acquiring any financial gain for themselves and the charge was only of negligence and omission. He referred to the findings of the Inquiry Officer which he concluded by declaring the appellants guilty of "willful negligence in safeguarding the interests of the Bank". The learned counsel pointed out that the insertion of the words "he is found guilty of gross misconduct", appears to have been typed later on, as it is in different font from remaining report and below the signature of the Inquiry Officer. The learned counsel referred to the correspondence in August 1993 between Hatim Ali, Assistant Vice-President, UBL, International Division and another Officer of the same Department, Masood-ur-Rehman, Executive Vice-President, to contend that negotiation of documents of non-correspondent Banks by the concerned branches were done with the approval of the International Division. The learned counsel contended that the Inquiry Officer had violated the rules of natural justice by not affording to the appellants a personal right of hearing when the show-cause notice expressly provided for the same and the appellant had in their reply opted to exercise the right.
Raja Muhammad Akram and Mr. Kamal Azafar, on behalf of respondents referred to the clear written instructions contained in Circular/Letter No. 2107 dated 22.10.1988, advising the officers of the Bank to obtain prior permission/clearance from the competent authority before negotiating L.Cs. issued by the non-correspondent Bank. It was thus, contended that since no prior permission had been obtained for acceptance of the L.Cs. issued by the Mediterranean Bank, which admittedly was a non-correspondent Bank, the appellants had acted in violation of the Bank's instructions. That Hatim Ali, who at the relevant time was Vice-President in the International Division and retired on superannuation just before action was taken against the appellants, was criminally prosecuted but acquitted. That in any case, the permission granted by him, would at best be relevant for the branches and the L.Cs. mentioned in the written permission. Mr. Kamal Azfar, submitted the colossal loss was caused to the Bank by the lapses of the appellants, as they had not checked the credibility of the Mediterranean Bank, which had paid up capital of only US $ 0.5 Millions and eventually defaulted on a number of L.Cs. it had drawn on the concerns of Tawakkal Group.
The objection of Mr. Manzoor Ali Khan, learned ASC, regarding violation of natural justice, is adverted to first. The same argument was advanced before the Federal Service Tribunal and repelled by the Tribunal, placing reliance upon "Fouzia Ahmed v. First Women Bank Ltd. (1999 SCMR 1237)", wherein a similar plea was taken up by the petitioner, also a bank employee, who had been dismissed from service. Rejecting the plea it was held that the service rules of the Bank did not provide for the requirement of personal hearing in the disciplinary matters, nor did she raise such a plea in her departmental appeal and had also not requested for personal hearing. Further more, the petitioner had not shown that she had been prejudiced in her defence on account of the personal hearing being not granted. In the case before us, it has not been shown that the Rules require the grant of personal hearing to an employee of the bank in a disciplinary action. Though the appellants had requested in their reply for a personal hearing, the show-cause notice stated, "you will be given an opportunity by the Inquiry Officer to put in your written defence or personal hearing, if so desired by you." The appellants were, therefore, given the option to either put in their written defence or to get a personal hearing. The appellants opted for the former and had given detailed explanation in defence. The learned counsel appearing for the appellants had also not pointed out as to what prejudice had been caused to the appellants for not being given a personal hearing. The objection regarding personal hearing is, therefore, not sustained.
The main contentious issue in all the appeals is the acceptance of letter of credit by the appellants issued by a non-correspondent Bank, whose name was not listed in the Banks' almanac, without prior permission of the competent authority in the Bank. The Bank relies upon the instructions issued by FD Circular Letter No. 2107 of 22.10.1988. The contents of which reads:
"DOCUMENTS DRAWN UNDER EXPORT LETTERS OF CREDIT.
Attention of branches is invited to our Circular Letter No. ID:DW:THQ: 687:84 dated the July, 22, 1984 and IS:SVP-11118:86 dated the 9th February, 1986 whereby branches were advised (through their Circle Executives) to obtain prior permission/clearance before negotiating/discounting documents presented in terms of letters of credit issued by the banks not included in our agency arrangements.
It has now been decided that our branches may negotiate/discount documents drawn under L.Cs. Issued by those non-correspondent banks who are listed in the first five hundred banks of the World. Such listing is done by "The Banker" a publication of the Financial Times and for convenience's sake: List is enclosed of those which are included in the above category but are not our correspondents.
This list of non correspondent banks may be kept on record and branches may negotiate documentary letters of Credit received from the banks without any reference to International Division Head Office, Karachi."
The learned counsel for the Bank submitted that prior permission before negotiating L.C. by a non-correspondent Bank was necessary even if such Bank was included in the list of five hundred Banks, enclosed with the above letter. That admittedly the Mediterranean Bank, does not figure in the list and that the circular envisaged written permission. Mr. Abid Hassan Minto, learned Sr. ASC, appearing for two of the appellants, however, contended that the Circular of 22.10.1988, refers to two categories of L.Cs. issued by the non-correspondent banks. The first, mentioned in the opening paragraph of the circular, which can be negotiated only with prior permission and the second, referred to in the following paragraph, are those issued by a Bank included in the list where, no permission was required. He next contended that since the circular does not explicitly required in writing permission, even verbal approval was sufficient. In this context, the learned counsel referred to the Auditor's report, which carries a note of the practice of the Bank to negotiate L.Cs. issued by the non-correspondent banks without formal approval of the competent authority. Reference was also made to a number of other documents indicating implied approval of senior officers of the Bank of the appellants negotiating the L.Cs. by the Mediterranean Bank drawn on concerns the Tawakkal Group.
Admittedly, the Mediterranean Bank is not included in the list of the five hundred non-correspondent banks mentioned in the circular of 22.10.1988, whose L.Cs. could be negotiated by the UBL Branches. We do not agree that prior permission would be required in case of non-correspondent bank included in the list attached with the circular in view of the clarification made in para 3 of the Circular empowering the branches to negotiate letters of credit issued by a bank listed in the list without reference to the International Division, Head Office. However, prior permission mentioned in the circular must be in writing for a number of reasons. Firstly, the authority competent to grant such permission is to examine and verify the credentials of the concerned non-corespondent bank. Secondly, the official of the bank seeing permission should also for his own record and protection obtain written permission. Thirdly, in the normal course of banking business too permission/clearance is obtained in writing upon written request. Even in case of urgency, which has not been shown in the present case, where verbal approval is granted, the same is followed by written endorsement. And finally, as would be seen while examining some correspondence regarding negotiation of L.Cs. issued by the Mediterranean Bank, written permission had been sought and granted in some cases. The prime responsibility of negotiating L.Cs. issued by non-correspondent banks is that of the officers of the concerned Branches to whom the L.Cs. are presented. Without prior permission in writing for negotiating such L.Cs. from the Banks not included in the list mentioned in the said circular is in violation of the instructions given therein. Such Officers can neither shift their responsibility to the Senior Officers nor can they seek protection of their tacit approval. The appellants had, therefore, mis-conducted themselves by not following these instructions, even if their non-observance had not resulted in financial loss to the Bank.
Having said, that there are certain documents placed on record, the authenticity of which is not denied by the respondents, which go to show that some Senior Officers of the bank were informed, or were at least aware of the said transactions by the branches. One such document pertains to the Faisalabad Branch; a fax message, dated 18.10.1993, by Anwar-ul-Haq Mirza, Senior Vice-President/Circle Executive, UBL, Faisalabad, to Hatim Ali, Vice-President, International Division, UBL, Head Office, Karachi, which had brought to the notice of the later, the letters of credit of huge amounts issued by the Mediterranean Bank, in favour of M/s. Tawakkal Group and had sought advice as to the standing of the Bank. The tenor of the fax message indicates that Anwar-ul-Haq was also involved in the negotiation of the L.Cs. as is demonstrated by two sentences mentioned in the message, "The export documents are being negotiated by us. We could not find in reference of this bank in the Bank Almanac Addition, 1992 available with us." It seems that no response was received from Hatim Ali and thus a reminder was sent on 1.11.1993. Furthermore the statement of outstanding bills negotiated by the Kutchary Bazar, Faisalabad Branch, under L.Cs. of non-correspondent banks as on 6.3.1994, states that the negotiation of L.Cs. presented by the Tawakkal Group had been allowed verbally by the Zonal Office/Circle Office. This statement has also been signed by the Zonal Head/Circle Chief, thus, confirming the verbal permission granted to the Branch. Another document relating to the other two Branches involved some significance in this context, is a letter of 4.8.1993 by Masood-ur-Rehman, Executive Vice-President/Head International Division, Head Office, Karachi, to Hatim Ali, Assistant Vice-President of the same Division, in which it was pointed out that the later had accorded permission on 29.7.1993 to the Bundar Road Branch, Karachi, and on 30.6.1993 to Saleh Muhammad street, Karachi, to negotiate without permission of the Competent Authority, documents by the Mediterranean Bank, a non-correspondent Bank. Hatim Ali, was advised to explain the circumstances, under which the permission had been granted. Hatim Ali, responded by admitting that the letters were issued by him to the two Branches, "keeping in view the excellent credibility of the exporter." He goes on to take credit for acquiring business of reputable business concerns of Tawakkal Group. When asked, the learned counsel representing the respondent Bank, were unable to show us any document whereby Masood-ur-Rehman Khan had taken his letter of 4.8.1993 to its logical conclusion. It, therefore, seems that he also felt satisfied with the explanation furnished by Hatim Ali. Another document of note is the report of the Audit and Inspection Division dated 2.5.1994 on "Negotiation of export document of Tawakkal Group, under L.Cs. of the Mediterranean Bank". According to the conclusion, drawn in the report as many as forty branches had been negotiating L.Cs. of non-correspondent Banks and that it could "be safely concluded that such negotiation is being done as a matter of practice."
Hatim Ali, retired on superannuation before 6.3.1994, when the Bank realized the loss caused by the L.Cs. issued by the Mediterranean Bank and had put a stop to further negotiation of such L.Cs. No departmental action was taken against him and it was only after observations made by the Federal Service Tribunal in the appeals of the present appellants that he was criminally prosecuted but that resulted in his acquittal. Anwar-ul-Haq, Circle Chief and Muhammad Saeed Chaudhry, Zonal Chief, Faisalabad, were proceeded against departmentally after direction by the Federal Service Tribunal. We were told that Anwar-ul-Haq was compulsorily retired one year before he had reached superannuation and Muhammad Saeed Chaudhry, was only reprimanded.
From the above narration, it appears that some of the Senior Officers of the Bank, at the Zonal and Circle Offices in the International Division at the Head Quarters of UBL, were aware of negotiation of the export documents on the basis of L.Cs. issued by the Mediterranean Bank, and who had either impliedly or actively approved the practice. Such approval cannot completely exonerate the appellants as we have already held that negotiation of such documents was the prime responsibility of the concerned Branch. However, the conduct of the Senior Officers of the Bank mellows down the extent of culpability of the appellants. If the Senior Officers, whose support encouraged the appellants to negotiate the said documents, had been let off lightly, it will be unjust to punish the appellants more severely.
In this view of the matter, while holding that the appellants were guilty of misconduct by acting in violation of the clear written instructions of the Bank regarding negotiation of L.Cs. by non-correspondent bank, we partially allow the appeals and modify the impugned judgments to the extent that the penalty of the appellants of termination/dismissal from services is converted into compulsorily retirement from the date on which their orders of termination/dismissal were passed by the Authority.
(A.A.) Penalty modified.
PLJ 2006 SC 701 [Appellate Jurisdiction]
Present: Javed Iqbal; Mian Shakirullah Jan and Tassaduq Hussain Jillani, JJ.
ZAHID IMRAN and others--Appellants
versus
STATE--Respondent
Crl. Appeals Nos. 396 to 400 of 2003, decided on 1.12.2005.
(On appeal from the judgment dated 4.3.2003, passed by Lahore High Court Lahore in Crl. As. Nos. 986, 987, 988, 989 of 2002 & M.R. No. 67-T of 2002)
(i) Anti-Terrorism Act, 1997 (XXVII of 1997)--
----Ss. 6 & 7-A--Applicability--Conviction and sentence awarded by trial Court under S. 7-A--Anti-Terrorism Act 1997, set aside by High Court was assailed--Act of appellants causing death of deceased created fear, sensation, panic and insecurity in a specified class as a while--Charge against appellants was framed when Anti Terrorism Act 1997 was intact, therefore, plea that charge was framed with retrospective effect in terms of Ordinance of 2001 which had substituted Act of 1997, was of no substance--Word "terrorism" explained and illustrated.
[Pp. 720, 722 & 723] K, L, M & N
(ii) Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34 & 316--Conviction and sentence of life imprisonment awarded to appellants for causing death of deceased--Guilt of accused whether established by evidence--Ocular account culminating into death of deceased was given by two eye-witnesses which was consistent and straight forward--Ocular version finds corroboration from medical evidence and also from other circumstantial evidence--Evidence in defence to dislodge prosecution evidence was not sufficient to create dent in evidence of prosecution--Evidence qua guilt of appellants have also been believed by trial Court and the High Court--Supreme Court agreed with both Courts on point of holding appellants guilty. [P. 709] A
(iii) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 316--Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7--High Court's order modifying conviction of appellant under Ss. 302 to 316 of PPC, assailed--Legality--Mandatory pre-requisite for invocation of Ss. 315 & 316 of P.P.C. were not applicable to case--High Court had wrongly applied S. 316 P.P.C. to offence committed by appellants--Trial Court had rightly found that offence of murder under S. 302 had been committed--Cause of death was neurogenic shock which was result of multiple injuries caused by appellants--Offence committed by appellants was thus murder in terms of S. 302(b) P.P.C. and not offence committed under S. 316 P.P.C.--Impugned judgment of High Court was set aside while that of trial Court was restored. [P. 709, 715] B, F & O
(iv) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 315 (illust)--Import and significance of illustration appended to S. 315 P.P.C.--High Court while applying illustrated appended to S. 315 P.P.C. ignored import and significance thereof while converting conviction and sentence awarded to appellants under Ss. 302 to 316 P.P.C.--Import and significance of illustration to a statutory provision explained and illustrated. [Pp. 711, 712 & 713] C, D & E
(v) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 34--Common intention or knowledge is to be ascertained from nature of injuries inflicted and medical evidence--Words intention and knowledge--Import and significance explained and illustrated.
[Pp. 716 & 717] G & H
(vi) Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 316--Offence of murder--Appellants were found guilty of deliberate and pre-meditated murder--Only sentence which could be awarded to appellants was death--No extenuating and mitigating circumstance to alter death sentence with that of any other sentence were pointed out--Conviction and sentence awarded by High Court under S. 316 P.P.C. was converted to that of conviction and sentence under S. 302(b) P.P.C. as awarded by trial Court. [Pp. 718 & 719] I, J & K
2002 SCMR 350; 2002 SCMR 1557; 1994 SCMR 1253; 1968 PCr.L.J. 176; 1969 PCr.L.J. 1193; 2004 SCMR 755; PLD 1963 SC 17; 2005 SCMR 1906; 2005 SCMR 1679; 1997 SCMR 89; 2003 SCMR 611; AIR 1944 P.C. 67; AIR 1949 P.C. 244; 250; AIR 1947 Bom. 122, 130; Interpretation of statutes by N.S. Bindra (7th ed); 1980 CLC 433; 1996 CLC 1932; PLD 1959 Lahore 429; PLD 1957 S.C. (Ind) 19; PLD 1959 Dacca 131; understanding States--canon of constitution by S.M. Zafar; PLD 1982 FSC 179; PLD 1951 F.C. 62; PLD 1995 Quetta 108; 1959 SCR 496; (1864) W.R. (GAP No.) (Crl.) 31; 1944 OWN 342; (1927) 5 Rangoon 817; 1938 OWN 184; 39 Cr.L.J. 979; 1960 ALJ 499; (1950) 52 PLR 73; (1928) 29 Cr.L.J. 540; 35 Cr.L.J. 455; AIR 1933 Lahore 305; (1932) 11 Pat 807; AIR 1957 SC 614; AIR 1935 Rangoon 504; (1936) 39 Cr.L.J. 217; 33 Cr.L.J. 537; PLD 1998 SC 1445; PLD 1995 SC 1; (1887) P.R. No. 62 of 1887; 34 Cr.L.J. 1055; AIR 1918 P.C. 354; PLD 1959 Lahore 495; PLD 1958 Lahore 395; PLD 1963 Karachi 118; PLD 1961 Lahore 221; PLD 1965 SC 640; PLD 2004 SC 917; 2002 SCMR 908; 2002 SCMR 1225; 2003 SCMR 1323 and PLD 2002 SC 841, ref.
Sardar Muhammad Lateef Khan Khosa, ASC and Raja Abdul Ghafoor, AOR for Appellants (in Cr. A. No. 396 & 2003).
Ch. Riyasat Ali, ASC for Appellant (in Cr. A. No. 400/03).
Sardar Muhammad Lateef Khan Khosa, Sr. ASC for Respondent (in Cr. A. No. 400 of 2003).
Ch. Munir Sadiq, ASC for State.
Dates of hearing : 28.4.2005 & 29.4.2005.
Judgment
Javed Iqbal, J.--Criminal Appeal Nos. 396 to 399 of 2003 (filed by convicts hereinafter referred to as appellants) and Criminal Appeal No. 400 of 2003 (filed by the widow of the deceased, hereinafter referred to as complainant party), by leave of the Court, are directed against the Judgment of the Lahore High Court, Lahore dated 4.3.2003, whereby conviction and sentences of death awarded to Sharafat Ali and Shahzad appellants and imprisonment for life to the other appellants namely, Zahid Imran, Muhammad Afzal, Shahid Ali, Muhammad Anwar and Sajid Masih under Sections 302/149 PPC and under Section 7-A of the Anti Terrorism Act, 1997 (hereinafter referred to as "the Act 1997") were set-aside and instead all of them were convicted under Section 316 PPC and sentenced to pay Diyat amounting to Rs. 2,70,493,53/- jointly and severally. They were also sentenced to 14 years R.I. as Tazir. In Criminal Appeal No. 400 of 2003, the complainant party has challenged the order of setting-aside of conviction under Sections 302/149 PPC and 7-A of the Act, 1997 and modification of/reduction in sentences of the appellants passed by the High Court.
All these appeals are proposed to be disposed of by this Single Judgment as they have arisen out of the common judgment and involved identical question of law and facts.
The leave to appeal was granted by this Court by means of order dated 12.11.2003 which is reproduced herein below to appreciate the legal and factual aspects of the controversy:--
"The above cited petitions for leave to appeal are directed against the common judgment dated 4.3.2003 whereby the learned Division Bench of the Lahore High Court setting aside the conviction and sentences of the appellants-convicts on the charges under Sections 302/149
Pakistan Penal Code read with Section 7-A of the Act 1997, converted the same under Section 316 Pakistan Penal Code, and thus, convicted and sentenced them to pay Diyat' amounting to
Rs. 2,70,493,53 jointly and severally. Besides, each of them was also sentenced to undergo RI for 14 years asTazir' whereas the benefit of Section 382-B
Criminal Procedure Code was declined.
Vide judgment of the trial Court dated 11.6.2002 both Shehzad alias Shera alias Tooti and Sharafat Ali were convicted and sentenced to death for the murder of Professor Abdul Latif on the charge under Section 7-A of the Act 1997 read with Section 302/149 Pakistan Penal Code with fine Rs. 2 lacs. Their co-accused namely, Sajid Masih, Muhammad Afzal, Shahid Ali, Muhammad Anwar and Zahid Imran were awarded life imprisonment each with fine of Rs. 1 lac each on the said charges. Under Section 148 Pakistan Penal Code, each of the co-accused was sentenced to undergo RI for three years plus fine of Rs. 10,000/- or in default thereof, to further suffer R.I. for six months.
Resume of the prosecution case as disclosed by Ishtiaq Ahmed complainant PW-11 is that on 19.4.2000 he alongwith his colleague Muhammad Siddique while deployed to supervise BA's Examination had come across Professor Abdul Latif and Khalid Hassan PW, when deceased had apprised them that during the morning paper, Shehzad while taking his BA's examination was found using unfair means, for which the deceased had admonished him, and while leaving the examination center, the accused named above had threatened Professor Abdul Latif of dire consequences and that of his murder. Subsequently, it is alleged that appellant and his six co-accused armed with irons grips and clubs had launched the attack causing multiple injuries on various parts of the body of the deceased culminating in his instantaneous death. It is stated that PWs had apprehended Zahid Imran, Muhammad Afzal and Shahid Ali at the spot, while remaining accused managed to escape from the scene of crime.
We have heard the learned counsel for the appellant as well as the complainant at length. Perusal of the judgment impugned reveals that learned Judges of the High Court came to the conclusion that involvement of the appellants in the commission of crime stood established by ocular account furnished by the independent witnesses, motive, medical evidence and the recovery of weapons of offence viz. iron grips and clubs and while converting the sentences of the appellants, the learned Judges took into consideration the medical evidence, whereby, deceased had sustained as many as nine injuries consisting of contusion, abrasions and swelling and the cause of death was described as neurogenic shock due to multiple injuries; the lungs of the deceased were found to be congested and he had breathed his last on account of external violence caused by he accused during the attack. It was further observed that no lethal weapon was used in the commission of crime and the sole intention of the accused appeared to have given beating to deceased Professor who had allegedly exchanged hot words with Shehzad alias Shera alias Tooti, and thus the learned Judges came to the conclusion that conviction of the appellants under Sections 302/149 Pakistan Penal Code and under Section 7-A of the Act 1997 was totally unjustifiable as the appellants had no intention to kill the deceased.
In addition to the aforesaid petitions, widow of the deceased Professor has also filed a separate petition seeking enhancement of sentences of the appellants.
Considering the case from all angles and for the safe administration of criminal justice in this case, we are of the view that the entire case requires reconsideration to ascertain as to whether judgment of the High Court is sustainable in the eye of law and whether the case falls within the ambit of Section 7-A of the Act 1997 and also to consider the quantum of sentence awarded in this case, therefore, we grant leave to appeal to the appellants as well as to the widow of the deceased Professor.
Leave to appeal granted in all these petitions in the terms indicated ibid."
"Professor Abdul Lateef deceased was my chachazad. The deceased was Professor at Municipal Govt. Degree College, Faisalabad. He was posted as Deputy Superintendent, Examination for conducting examination of B.A. at Government College Center Gojra. On 19.4.2000 I alongwith Muhammad Siddique S/O Umar Din PW at about 5.45 p.m. met Prof: Abdul Lateef come outside the Gate of Government College, Gojra. Prof. Abdul Lateef was accompanied by Khalid Hussain PW at that time. At that time Prof: Abdul Lateef told us that in the morning paper, Shahzad alias Toti alias Shera accused was found by him while copying in the Examination Hall and he further told that he forbade Shahzad accused who went away while threatening of dire consequences and his murder. He further told us that Shahzad accused said that his father was the President of Gojra Bar Association and he will deal with him. During this time A Suzuki Car No. 209/FDP came there, 4 boys came out of that Car aforesaid.--
The four boys are present in Court today, came there, in Suzuki Car; they de-boarded from said Suzuki car. They started conversation, with pointing towards Abdul Lateef deceased. Later on, their names were disclosed as Shehzad Akhtar alias Shera alias Toti, Muhammad Anwar, Sharafat Ali, Sajjad Masih, who was driving said car, (today all present in Court). On seeing this, we started walking towards Lari Adda Gojra, when we reached post Office Chowk, it was about 6:10 p.m. Prof. Abdul Lateef was a few paces ahead from us. At that time, suddenly the same Suzuki car mentioned above emerged there. Shehzad and Sharafat accused were armed with iron fist (ahni mukka), Sajid, Anwar accused were armed with dandas. Meanwhile, a motorcycle Honda 125 No. 5730 on which 3 boys were riding. They also stopped their motorcycle near the accused already present. Shehzad accused also joined the other accused. The accused who came there on motorcycle are also today present in Court. At that time, Shahzad alias Toti raised lalkara that "Deputy Supdt. should be taught lesson not to give me permission for cheating in the examination." On thus, Shahzad accused first gave iron fist blow to Prof. Abdul Lateef, which hit him on the head. Sharafat also gave iron fist blow to Prof. Abdul Lateef, which hit him on the front side of the neck. Shehzad again gave iron fist blow to said Prof, which hit him on his chest, on left side. Thereafter, Anwar, Sajid, Zahid Imran, Shahid Ali, Muhammad Afzal, started beating Prof. Abdul Lateef, with sticks and dandas, and Prof. Abdul Lateef fell down. All the seven accused then gave him kicks and fist dandas blows, who was already lying, which hit the deceased on various parts of body.
I, Siddique, and Khalid Hussain PWs intervened, and caught hold of Zahid Imran, Muhammad Afzal, Shahid Ali at the spot. I caught Muhammad Afzal accused. Khalid PW caught hold Zahid Imran accused, and Muhammad Siddique apprehended Shahid Ali accused. Many people gathered at the spot at that time. All these 3 accused, who were apprehended, threw their dandas somewhere there. Sharafat, Anwar, Sajid, and Shahzad succeeded to run away in the car and the motorcycle. Prof. Abdul Lateef succumbed to the injuries at the spot.
The motive for the occurrence was that Prof. Abdul Lateef, who was on official duty, had not allowed to the accused for cheating in the examination hall, to Shahzad accused, and thereafter all the accused committed the intentional murder of Prof. Abdul Lateef, to struck terror. The police arrived at the spot. I narrated whole the occurrence to the police, which was reduced into writing vide complaint Ex. P.F. I also signed the same, as token of its correctness. We also handed over three accused mentioned above to the police.
In this case, the prosecution has examined 15 witnesses while the appellants in all examined 11 witnesses in their defence. The material witnesses of the prosecution are, Ishtiaq Ahmed PW.11 and Khalid Hussain PW.12, the eye-witnesses; Dr. Muhammad Ashgar, Senior Medical Officer PW.1 who conducted the post-mortem examination on the dead body of the deceased, Rai Nasar Ahmed Professor Government College Faislabad, Superintendent (Examinations-B.A.) PW.2, Mansoor Hussain Superintendent Government Science College, B.A. Examinations Faisalabad, PW.3 and Muhammad Akram Shah S.I. who investigated the case. The other witnesses are mostly formal or recovery memos witnesses vide which the Investigation Officer had recovered the various articles belonging to the deceased and also the weapons of offence, the Motorcar, the Motorcycle at the instance/disclosure of the appellants.
Ishtiaq Ahmed PW.11 has given the ocular account in his statement recorded in the Court which is quite in-line with the report lodged by him. Khalid Hussain PW. 12, the other eye-witness has supported the complainant in all material points and corroborated his version.
Dr. Muhammad Asghar PW. 1 has conducted the post-mortem examination on the dead body on 11.4.2000 at 11:30 p.m. and found the following injuries on the person of the deceased, observing as under:--
"1. A redish blue contuse 8 cm x 3 cm on front and upper part of left side of chest, below clavicle.
A redish blue contuse 6 cm x 4 cm on front of neck, just near Manubrium Sterni.
A redish blue contuse 16 cm x 15 cm on back and upper part of both sides of chest including upper part of thoracic spino.
A redish blue contuse 5 cm x 3 cm on back of left scapula of left chest.
Multiple redish contusions in on area of 9 cm x 6 cm on back and lower part of left side of chest.
An abrasion .5 cm x .3 cm on outer part of palmer side of left hand base of thumb.
An abrasion .5 cm x .2 cm on left cheek.
A redish blue contusion 4 cm x 2 cm on inner and lower part of left fore-arm.
A swelling 5 cm x 4 cm on left parietal region left side of head."
and described the cause of death neurogenic shock due to multiple injuries with blunt weapon. The probable duration of injury and death was immediate while between death and post-mortem was about 5 to 6 hours. Rai Nasar Ahmed PW.2 Superintendent (Examination B.A) who also corroborated the version of the prosecution with regard to the exchange of some hot words between the deceased and appellants Shahzad in the examination hall, as on search of the appellants Shehzad by the deceased with regard to the copying material possessed by him, and which was also recovered from him, the appellant felt ill for that action of the deceased, left the question paper, answer sheet, paymana having the copying material written on it and went out of the examination hall while grumbling.
Learned counsel for the appellants have argued that the two witnesses who are closely related to the deceased, are chance witnesses as they did not belong to the said vicinity and also having no job of their own to visit the area or to be present on the spot; that all the recoveries so effected at the disclosure of the appellants have been planted and have not been proved by examining independent witnesses for the recoveries so effected and though the appellants have been nominated in the FIR by names, yet they were not known to the eye-witnesses previously and this effort on the part of the prosecution by mentioning the names of the appellants in the FIR is a planned one made by the Investigating Officer at the behest of Akhtar Ali Police Inspector, Previous SHO of the said Police Station who was the father-in-law of the deceased and who was inimically disposed of towards the father of the Shehzad appellants as some complaints have been made by the latter against the former i.e. the Police Inspector and thus challenging the evidence of the prosecution as not trust-worthy and not reliable to be believed qua the offences of capital punishment.
On the other hand learned counsel for the complainant party, while challenging the judgment of the High Court whereby the convictions under Section 7-A of the Act 1997 and 302 PPC were set-aside/converted to an offence under Section 316 PPC respectively and reduced the sentence from death to Diyat and 14 years imprisonment, has submitted that the prosecution has been able to prove guilt of the appellants and the trial Court has rightly convicted and sentenced them. He was supported by the state counsel.
We have gone through the entire record of the case, i.e. Judgment of the High Court, and the trial Court, evidence of the prosecution and that of the defence and examined the record in the light of the submissions made by the learned counsel for the parties.
The ocular version which was given by the two eye-witnesses is consistent and straight-forward, may be with some minor contradictions, which may be due to lapse of time. The reasons of their visit at the place, where the deceased was deputed in the examination hall has been explained by the two witnesses and the narration of the circumstances particularly the apprehending of the three appellants on the spot by them fully lends support to their version indicating their presence on the spot. Their version finds corroboration from the Medical evidence and also from the other circumstantial evidence i.e. the recoveries of the iron grips/iron club and Dandas at the instance of the appellants. The reasons of nominating the appellants in the FIR have also been fully explained as to how they came to know about the names of the appellants and more so their identification by PW's at the time of examination in the Court. They have pointed out the appellants present in the Court to be the one who were responsible for the assault on the deceased. Regarding the recoveries of various weapons affected, a credible evidence has been led by the prosecution and there exists no reasons to disbelieve such evidence. Efforts were made to dislodge the prosecution evidence by producing the evidence in defence with different pleas showing some ill-will between the Police Officials and father of the appellants Shehzad and also the absence of some of the appellants on the spot but the said evidence is not of a such standard sufficient to create dent in the evidence of the prosecution.
The evidence qua the guilt of the appellants have also been believed by the two Courts below i.e. the trial Court and First Appellate Court i.e. High Court, we also agree with both the Courts on the point of holding the appellant's guilty. However, the two Courts differ with regard to the sentences and the sections applicable in the case. As the trial Court found them guilty under Sections 302-b PPC and 7-A Act, 1997 and sentenced the appellants as mentioned in Para No. 1 above while the High Court held them guilty under Section 316 PPC and sentenced them accordingly.
Since both the parties i.e. the complainant party and the appellants have challenged the judgment of the High Court, the former has impugned the setting-aside of convictions and sentences under Sections 302/149 PPC and 7-A of the Act, 1997, while the later impugned their convictions and sentences under Section 316 PPC, this aspect (alterations in the sections of law and sentences after holding them guilty), require consideration.
Let we make it clear at the out set and as mentioned above that we agree with the conclusion of learned trial and First Appellate Courts that the prosecution has proved the guilty to the hilt by producing cogent and concrete evidence but we have serious reservations qua the application of Section 316 PPC, factum of sentence and applicability of Sections 6 and 7 of the Act 1997. As pointed earlier the prosecution has established its case beyond shadow of doubt. In this regard the statements of Ishtiaq Ahmad (P.W.11) and Khalid Hussain (P.W.12) can be referred. They were eye witnesses and it transpired from an in depth scrutiny of their statements that they have fully supported the prosecution case. They remained firm during the test of cross-examination and in spite of various searching questions, lengthy and an exhaustive cross-examination, nothing beneficial rendering any help to the case of appellants could be elicited. They had no rancor, enmity or ill-will against the appellants and hence the question of their false involvement does not arise specially when three accused were apprehended at the spot. Their version also finds support from the medical evidence, motive, factum of recovery and abscontion. Being worthy of credence and confidence inspiring, their evidence has rightly been appreciated and believed by the learned trial Court determination whereof has been upheld by the appellate Court under different sections of Penal Code. Ishtiaq Ahmad (P.W.11) and Khalid Hussain (P.W.12), by no stretch of imagination, can be declared as chance witnesses, as pressed time and again by Mr. Muhammad Latif Khan Khosa, learned Sr. ASC on behalf of appellants, because they have rendered a plausible justification for their presence at the place of occurrence. In this regard we are fortified by the dictum as laid down in the following authorities:--
(i) Muhammad Ilyas v. State (2002 SCMR 350);
(ii) Amanullah v. State (2002 SCMR 1557);
(iii) Allah Ditta v. Ghulam Shabbir (1994 SCMR 1253);
(iv) Shahzada v. Hamidullah (1968 P.Cr.L.J. 176);
(v) Fakku Mia v. State (1969 P.Cr.L.J. 1193);
(vi) Muhammad Rafique v. State (2004 SCMR 755);
(vii) Sikandar v. State (PLD 1963 SC 17);
(viii) Mst. Dur Naz v. Yousuf (2005 SCMR 1906);
(ix) Muhammad Zaman v. Muhammad Afzaal (2005 SCMR 1679);
(x) Muhammad Ahmad v. State (1997 SCMR 89);
(xi) Safeer Hussain v. Muhammad Jehangir (1996 SCMR 951);
(xii) Liaquat Hussain v. Falak Sher (2003 SCMR 611).
"S. 316. Punishment for Qatl Shibh-i-Amd. Whoever commits Qatl Shibh-i-Amd shall be liable to Diyat and may also be punished with imprisonment of either description for a term which may extend to twenty five years as Tazir."
"S. 315. Qatl Shibh-i-amd.--Whoever, with intent to cause harm to the body or mind of any person, causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death is said to commit qatl shibh-i-amd.
Illustration
A in order to cause hurt strikes Z with a stick or stone which in the ordinary course of nature is not likely to cause death. Z dies as a result of such hurt. A shall be guilty of qatl shibh-i-amd.
"Illustrations appended to an Act of the Legislature are part of the enactment. They can, therefore, be legitimately used and are of value in construction of the sections. (1980 CLC 433) Reference to illustrations attached to any section would help in understanding true import/meanings of words used in such section as also scope thereof. (1996 CLC 1932). They may provide guidelines for interpretation of such provisions but cannot be accepted as the law itself. (1966 CLC 1331). An illustration appended to a section, should be deemed part of it, unless it is in conflict with the section itself. (PLD 1959 Lah. 429). However, it cannot curtail or expand the ambit of the section. (PLD 1957 S.C. (Ind) 18). Nor it can modify the language of the enactment. (PLD 1959 Dacca 131)" (Emphasis provided) (Canon of Construction & Interpretation of Statutes by M. Mahmood).
"Illustrations appended to an Act are part of the enactment and can legitimately be used for construction of Sections, unless it conflicts with the section. Where statutory examples are given it is the duty of the Court to accept their guidance. Unless this is unavoidable, they should not be rejected on the ground that they are repugnant to the operative provisions of the Act. That is, it is the duty of the Court to accept if that can be done, illustrations given under the section as being of value in the construction of the text and it would require a special case to warrant their ejection on the ground of repugnancy with the section. (Emphasis provided) But it cannot be laid down that under every circumstance an illustration must be taken as part of the Statute. Even if it is held that illustrations are no part of the section they have been expressed by the legislature as helpful in the working and application of the statute and their usefulness in that respect should not be impaired. Similar views have been laid down by the Judicial Committee of the Privy Council in Mahmood Syedal Ariffin v. Yeah Ovi Gark." (Understanding Statutes - Canon of Construction by S.M. Zafar).
"9. As regards the legal significance of such illustrations, it is well-settled now that illustrations appended to a section are to be taken as part of that section AIR 1918 PC 249 unless they are found inconsistent with that section. The main purpose of illustrations is to show how the principle already enunciated or contained in that section of the enactment, is to be applied or how the particular facts of the case supposed by that illustration come under that principle. Thus an illustration to a section of a statute plays an important role for the interpretation and application of that section and to gather the true intention of the legislature in framing that particular section. An illustration serves as a sort of key to unlock the mind of the draftsman regarding the true intention in framing that particular section."
We have no hesitation in our minds to hold that the illustration appended to this section besides an integral part of the section can be called in said to interpret the intention of the legislature. In this regard reference can be made to the case of Ghulam Rasul v. Crown (PLD 1951 Federal Court 62).
We have also examined the medical evidence furnished by Dr. Muhammad Asghar (P.W.1) by whom post-mortem of the deceased was conducted and following injuries were noted:-
"1. A reddish blue contuse 8 cm x 3 cm on front and upper part of left side of chest, below clavicle.
A reddish blue contuse 6 cm x 4 cm on front of neck just near Manubrium Sterni.
A reddish blue contuse 16 cm x 15 cm on back and upper part of both sides of chest including upper part of thorasic spine.
A reddish blue contuse 5 cm x 3 cm on back of left scapula of left chest.
Multiple reddish contusions in an area of 9 cm x 6 cm on back and lower part of left side of chest.
An abrasion .5 cm x .3 cm on outer part of plamer side of left and hand near base of thumb.
An abrasion .5 cm x .2 cm on left cheek.
A reddish blue contusion 4 cm x 2 cm on inner and lower part of left fore-arm.
A swelling 5 cm x 4 cm on left parietal region (left side of head).
Scalp, Skull and Vertebrae.
Scalp was congested at site of injury No. 9. Skull and vertebrae were healthy.
Membrances and brain were healthy.
THORAX.
Right lung was congested. A piece of lung was sent to Chemical Examiner, Punjab, Lahore for histopathology. Left lung was found congested. A piece of lung was sent to Chemical Examiner, Punjab, Lahore for histophatology.
Paricardium and heart, both chambers (Right and left ventricle) of heart were full of blood. The whole heart was sent to Chemical Examiner for histopathology. All other viscera of thorax were healthy.
ABDOMEN.
Stomach was healthy and contained about 150 cc of semi-digested food material. Small intestine was healthy and contained semi-digested food material. Large intestine was healthy and contained focal matter. Bladder was healthy and contained about 200 cc of urine. All other organs were healthy.
On dissection muscles, bones and joints, no fracture was seen as well as no dislocation was seen."
"I have seen the "report from Bacteriologist' Punjab Lahore (Objected to by the Learned Defence Counsel about the inadmissibility (Ex. PD) of report of Bacteriologist), Ex. PD and on the basis of the said report I gave the final opinion about the cause of death as there is no evidence of old and rent myocardial infarction from report, so my final opinion is that the cause of death was due to neurogenic shock due to multiple injuries. My final opinion is PB/1, which is in my hand and signed by me."
"I do not agree with the suggestion that the deceased suffered from prominent vascular congestion, septal wall cedema with collection of R.B.Cs and inflammatory cells due to disease before the seat of injuries. It is not necessary that the presence of the above in the lungs of the deceased may have contributed to the neurogenic shock and I cannot say if it could contribute to the neurogenic shock."
(i) Iron fist (P-11) (Exh. PM)
(ii) Danda like bat (P-12) (Exh. PN)
(iii) Iron fist (P-19) (Exh. PR)
(iv) Danda (P-27) (Exh. PT)
(v) Sota (P-28) (Exh. PU)
(vi) Danda (P-29) (Exh. PV)
(vii) Danda (P-29) (Exh. PV/1)
(viii) Sota (P-30) (Exh. PW);
which can be equated to that of blunt weapons. It is not necessary that where lethal weapon and fire-arm is not used the offence would fall within the ambit of Section 315 PPC. The mandatory pre-requisite for the invocation of Section 315 would be the use of stone and stick which were never used by the appellants and hence the question of their conviction under Section 316 PPC does not arise. The illustration to Section 315 PPC has either not been appreciated in its true perspective or it escaped the notice of learned Division Bench of High Court. Besides that the words "with intent to cause harm" have not at all been kept in view rather factum of intention which finds a specific mention in the said section, has been dealt with in a casual manner by the learned Division Bench of High Court. What was the real intention of the appellant, could well be understood from medical evidence as discussed herein above. The view that the appellants had no intention to kill is utterly devoid of merit. The well entrenched principle of criminal administration of justice "that to constitute a crime the act must be accompanied by a criminal intent or by such negligence or in difference of duty or to consequence as is regarded by the law as equivalent to criminal intent. We are conscious of the fact that intention is not capable of positive proof and it can only be implied from overt act and no hard and fast rules can be formulated to know the intention which must always be gathered from the circumstances of the case, and the matter which is primarily to be considered is the consequences which flow from an act because a man is usually presumed to intend the consequences of his own act," has been ignored. (Mewa Khan v. The State PLD 1995 Quetta 108).
We may point out that "by intention' is meant the expectation of the consequence in question.It was a universal principle, that when a man is charged with doing an act, of which the probable consequence may be highly injurious, the intention is an inference of law resulting from the doing of the act.' Intention does not imply or assume the existence of some previous design or fore-thought. It means an actual intention, the existing intention of the moment, and is proved by, or inferred from, the acts of the accused and the circumstances of the case." (1887) P.R. No. 62 of 1887).
In so far as common intention is concerned it is a question of fact which can be ascertained on the basis of the acts and conduct of the accused, the ferocity of the attack, the weapons used, the number and seat of injuries, the number of blows coupled with the element of prior concert of mind. In this regard reference can be made to (B.N. Srikantiah & others v. The State of Mysore 1959 SCR 496).
Intention or knowledge of accused can further be ascertained from the nature of the injuries inflicted and the medical evidence as furnished by Dr. Muhammad
Asghar (P.W.1) who made it abundant clear that the cumulative effects of the injuries resulted in neurologic shock which caused the death of Prof. Abdul
Latif. We are conscious of the fact that the existence of intention is not to be inferred unless death fallows as a natural and probable consequence from the act. The intention' orknowledge' with which, an act which caused death was committed is not constructive or a presumption of law, but a matter of fact to be examined in each case and proof of collateral facts to explain the motives and designs of the accused would be admissible which has come on record and have rightly been taken into consideration by the learned trial Court. There is no cavil to the proposition that "the connection between the act' and the death caused thereby must be direct and distinct; and though not immediate it must not be too remote. If the nature of the connection between the act and the death is in itself obscure, or if it, is obscured by the action of concurrent causes, or if the connection is broken by the intervention of the subsequent causes, or if the interval of time between the death and the act too long, the above condition is not fulfilled. It is indispensable that the death should be clearly connected with the act of violence,not merely by a chain of causes and effects, but by such direct influence as is calculated to produce the effect without the intervention of any considerable change of circumstances." (1864) W.R. (Gap. No.) (Cr.) 31. The external violence caused "neurologic shock" as a result whereof Prof. Abdul Lateef died instantaneously.
It may not be out of place to mention here that "certain factors will have to be considered, such as for instance the number of blows, the nature of those blows and the parts of the body on which those blows have been inflicted." (1944) (O.W.N. 342). The infliction of blows and seat of injuries also indicates "as to the intention to be presumed". (1927 5 Ran. 817, 1938 O.W.N. 184, 39 Cr.L.J. 979). The question as to how the factum of intention or knowledge could be proved the settled criterion seems to be that "it may be asked how can the existence of the requisite intention or knowledge be proved, seeing that these are internal and invisible acts of the mind? They can be ascertained only from external and visible acts. Observation and experience enable us to judge of the connection between men's conduct and their intentions. We know that a sane man does not usually commit certain acts heedlessly or unintentionally and generally we have no difficulty in inferring from his conduct what was his real intention upon any given occasion." (M. & M. 230, 231). The case has been examined on the touchstone of the criterion as mentioned above and after gone through the entire evidence, eye account furnished by Ishtiaq Ahmad (P.W.11) and Khalid Hussain (P.W.12), medical evidence, infliction of various blows on vital parts of the deceased, weapon used and seat of injuries, we are of the considered opinion that it was a Qatl-i-amd and no other sentence could be awarded except death. It is well established by now that "the normal sentence for a person found guilty under this section is the sentence of death and the lesser punishment cannot be awarded unless there are extenuating circumstances which, though they are not sufficient to bring the case under any of the exceptions to this section, could be taken into account as mitigating circumstances to award lesser of the two sentences. While awarding sentence for an offence under this section the conduct of the murderer, the nature of the temptation to which he yielded, the manner in which the crime was committed are some of the considerations which will weigh with the Court. But the Code provides no exception for young persons on the ground that they are young." (1960 ALJ 499). Where "the accused had no personal motive and committed the murder in order to oblige his friend is concerned, is not a sufficient ground for awarding lesser sentence of imprisonment for life." (1950) 52 PLR 73). Besides that "youth alone in every case is not such an extenuating circumstance as would justify the imposition of the lesser penalty." ((1928) 29 Cr.L.J. 540, 35 Cr.L.J. 455, 1933 AIR (L) 305). A Court is wrong where he fails to sentence accused persons to death when they have deserved that punishment, and there should be no extenuating considerations. "Judges are sworn to administer the law not as they wish it to be, but as they find it." (1932 11 Pat. 807).
The learned Division Bench of Lahore High Court has erred while converting Section 302 PPC with that of Section 316 PPC by ignoring the evidence which has come on record. It is well entrenched principle of criminal administration of justice that "the question of sentence demands the utmost care on the part of the Courts dealing with the life and the liberties of the people. The sentence must be weighed in golden scales as it were, properly balanced, to punish the offender in proportion to the character and extent of his guilt, to be deterrent for him and for the rest of the society, without being unnecessarily harsh or needlessly indulgent. All the circumstances surrounding the guilt must be carefully borne in mind and in determining the kind and quantum of sentence to be awarded the overriding consideration must be that it should be fair and even on humane standards, to produce the correct results in a given case, to be a solacing polliative for the party that has been wronged and an effective punishment for the one that has done the wrong." (PLD 1967 Pesh. 119). "In case of murder, when the facts are clear, the onus is upon the accused to show the circumstances which would bring to offence within the category of those offences which capital sentence should not be imposed. The law indicates the gravity of the offence by the maximum penalty and the Courts have to judge whether the act committed falls short of the maximum degree of gravity and if so, to what extent. Therefore unless extenuating circumstances can be found a murderer must be sentenced to death. If the Court is satisfied that there are mitigating circumstances, only then it would be justified in imposing the lesser of the two sentences provided by law. In other words, the nature of the proof has nothing to do with the character of the punishment." (AIR 1957 SC 614).
The appellants were found guilty of deliberate and premeditated murder and hence the only sentence which could be awarded is that of death as there are no extenuating and mitigating circumstances to alter the same with that of any other sentence. The learned Division Bench of Lahore High Court has not given any cogent reasoning for conversion of sentence and ignored that "where the offence deserves a higher penalty any reluctance to pass death sentence should be deprecated. The leniency in the matter of sentence where it is not deserved is a serious dereliction of duty on the part of the Court to whom the State has entrusted the duty of doing justice between man and man. Therefore, the Court will not be justified in not inflicting extreme sentence on grounds which are purely matters of grace and clemency." (AIR 1935 Rang. 504).
In the light of what has been stated herein above we are of the considered view that it was an unmerciful thrashing in a brutal manner given by iron fist and clubs which resulted in the death of Prof. Abdul Lateef. If the manner of attack by the assailant is out of all proportion to the offence given, that circumstances must be taken into consideration for deciding whether undue advantage has been taken. In the case in hand, as discussed herein above, the appellants have acted in a very unusual and barbaric manner which cannot be ignored. It was by all means Qatl-i-Amd which aspect of the matter has rightly been dilated upon and decided by the learned trial Court. The death was due to neurogenic shock which developed as a result of the injuries sustained by Prof. Abdul Lateef and inflicted by the appellants. In the absence of such injuries the question of neurogenic shock would have not arisen. The appellants have given serious blows on the head of the deceased with iron fist and clubs and they intended or knew themselves to be likely to smash the skull of the victum and they must be taken to have known that they were likely to cause the death of victum and were therefore, guilty of Qatl-i-Amd. "When the disease which actually causes death is meningitis, peritonitis, teatanus, pneumonia, etc., and it is the natural and probable result of the injury which the person inflicting the injury has caused, the person who inflicts the injury must be held responsible for the disease arising from the injury." (1936) 39 Cr.L.J. 217). It is to be noted that "the law looks as regard intention to the natural result of a man's act and not to the condition of his mind. From a legal point of view a person intends whatever he gives others reasonable grounds for supposing that he does intend. Where a man strikes lathi blows on the head of the deceased mercilessly and practically kills him on the spot, he is guilty of murder." (1392) 9. O.W.N. 350, 33 Cr.L.J. 537).
In sequel to above mentioned discussion, we are of the considered view that the multiple blows inflicted by the appellants and various injuries received by the deceased are indicative of the gravity of the force which was used. No doubt the weapon used were not one that would of necessity cause fatal injury, but the force used was so great as to show that the appellants intended to cause injury sufficient in the ordinary course of nature to cause death and that they are guilty of Qatl-i-Amd. There can be no doubt that a person delivered a violent blow with a fist blow or danda on vulnerable part of the body of the deceased such as head must be deemed to have intended to cause such bodily injury as they knew was likely to cause the death of the person whom the blows were inflicted.
We have also adverted to the question as to whether conviction could have been awarded under Section 7-A of the Act 1997 or otherwise? This aspect of the case has not been examined seriously and no sound reasoning whatsoever has been given by the learned Division Bench of Lahore High Court that as to why the provisions as contained in Section 7-A of the Act 1997 would not be applicable. The observation of learned Division Bench of Lahore High Court "that the deceased was not beaten to death because he was public servant. He was caused injuries only because he had exchanged some hot words with Shahzad alias Shera. Conviction of the appellants under Section 7-A of the Act 1997 was also unjustified" is absolutely incorrect and is a result of sheer misreading and non-reading of evidence. It is to be noted that specific motive has been assigned in FIR duly proved by the evidence furnished by Rai Nazir Ahmad (P.W.2) duly supported by Manzoor Hussain (P.W.3). Appellant namely Shahzad was got apprehended red handed while copying and using unfair means and such apprehension by late Prof. Abdul Lateef was not his personal act but it was a part of his official duty as he was performing as Deputy Superintendent in the examination hall to conduct the BA examination. The accused became annoyed and nourished grudge which culminated into the death of Prof. Abdul Lateef who admittedly was on duty and conducting BA examination and did not allow Shahzad to use unfair means and copying who left the examination center by extending serious threats to Prof. Abdul Lateef and in the evening the fateful occurrence occurred as a result whereof Prof. Abdul Lateef was done to death by all the accused persons having common intention and prior concert of mind. The act of accused persons created fear, sensation, panic and insecurity in the teaching class as a whole. It is to be noted that the charge was framed on 6.6.2000 when Section 6 of the Act 1997 was intact and substituted by Ordinance XXXIX of 2001 whereas the alleged offence was committed on 19.4.2000 and the said substitution was not with retrospective effect as the said Ordinance was promulgated on 14.8.2001. We have carefully examined the provisions of Section 6 of the Act 1997 which are reproduced herein below for ready reference:--
"6. Terrorism.--(1) In this Act, `terrorism' means the use or threat of action where:
(a) the action falls within the meaning of sub-section (2), and
(b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or
(c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause.
(2) An "action" shall fall within the meaning of sub-section (1), if it:
(a) involves the doing of anything that causes death;
(b) involves grievous violence against a person or grievous bodily injury or harm to a person;
(c) involves grievous damage to property;
(d) involves the doing of anything that is likely to cause death or endangers a person's life;
(e) involves kidnapping for ransom, hostage, taking or hijacking;
(f) incites hatred and contempt on religious sectarian or ethnic basis to stir up violence or cause internal disturbance;
(g) involves stoning, brick-batting or any other form of mischief to spread panic;
(h) involves firing on religious congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing to spread panic, or involves any forcible takeover of mosques or other places of worship;
(i) creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil life;
(j) involves the burning of vehicles or any other serious form of arson;
(k) involves extortion of money ("bhatta") or property;
(l) is designed to seriously interfere with or seriously disrupt a communications system or public uility service;
(m) involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties; or
(n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant.
(3) The use or threat of use of any action falling within sub-section (2), which involves the use of fire-arms, explosives or any other weapon, is terrorism, whether or not sub-section 1 (c) is satisfied.
(4) In this section "action" includes an act or a series of acts.
(5) In this Act, terrorism includes any act done for the benefit of a proscribed organization.
(6) A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism.
(7) In this Act, a "terrorist" means:
(a) a person who has committed an offence of terrorism under this Act, and is or has been concerned in the commission, preparation or instigation of acts of terrorism;
(b) a person who is or has been, whether before or after the coming into force of this Act, concerned in the commission, preparation or instigation of acts of terrorism, shall also be included in the meaning given in clause (a) above."
The language as employed in the section is unambiguous, plain and simple which hardly requires any scholarly interpretation and is capable enough to meet all kinds of terrorism. It is an exhaustive section and does not revolve around the word "designed to" as used in Section 6(1)(b) of the Act or mens rea but the key word, in our opinion, is "action" on the basis whereof it can be adjudged as to whether the alleged offence falls within the scope of Section 6 of the Act or otherwise? After having gone through the provisions as contained in Section 6 of the Act we are of the firm opinion that "terrorism" means the use or threat of "action" where the "action" falls within the meaning of sub-section (2) of Section 6 of the Act and creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil life shall amount to terrorism as enumerated in Section 6 of the Act.
We must not ignore the dictum as laid down in Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445) which reads as follows:--
"We may point out that this Court is not oblivious of the factum that the law and order situation has been considerably deteriorated and new types of terrorism have emerged due to tremedous progress made in the field of technology. This Court in more than one cases has held that the approach of the Court while considering criminal matters should be dynamic and it should take into consideration the surrounding situation obtaining in the country and should not lightly set aside a conviction on technical grounds if the Court's conscience is satisfied that factually the convict was guilty of the offence. In this regard reference may be made to the following observations of one of us (Ajmal Mian, CJ) in the following two cases:--
(i) State through Advocate-General, Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1);
"2. Before touching upon the merits of the case, I may observe that there cannot be two opinion that the duty of the Court is to administer the laws as are operative in the country and if such laws fail to achieve the desired result, then it is the duty of the Legislature to make necessary amendments therein. However, at the same time, it is also a well-settled proposition of law that while applying a particular law, the Court should take into consideration the object for which it has been enacted. The interpretation of the law should be placed in a manner which may advance the object and suppress the mischief for which the law in question might have been enacted and not to construe in a manner which may defeat the object of the law."
There is no cavil to the proposition that "intention" plays a dominant role in determining the act of terrorism but there is no yardstick on the basis of which it could be defined precisely and with exactitude. "By intention is meant the expectation of the consequence in question. It was an universal principle, that when a man is charged with doing an act, of which the probable consequence may be highly injurious, the intention is an inference of law resulting from the doing of the act. Intention does not imply or assume the existence of some previous design or fore-thought. It means an actual intention, the existing intention of the moment, and is proved by , or inferred from, the acts of the accused and the circumstances of the case." ((1887) P.R. 62 of 1887). It is well settled by now that "criminal intention simply means the purpose or design of doing an act forbidden by the Criminal Law without just cause or excuse. An act is intentional if it exists in idea before it exists in fact, the idea realizing itself in the fact because of the desire by which it is accompanied. The word "intent" does not mean the ultimate aim and object. Nor is it used a synonym for motive." (34 PCr.LJ. 1055 Ramsukh). It hardly needs any explanation that intention cannot be proved by direct evidence which is rarely available and therefore, it has to be inferred from surrounding circumstances." (PC) AIR 1918 P.C. 354 Consul Confizon v. H.M. Prosecutor General, PLD 1959 Lah. 495, PLD 1958 Lah. 395, PLD 1963 Kar. 188 Taj Muhammad, PLD 1961 Lah. 221 Rahmat Ullah, PLD 1965 SC 640 Jane Alam. The presumption of law is that a man intends the natural and inevitable consequences of his own act and thus it is not necessary to consider his state of mind at the time of committing the offence for the purposes of determining whether he intended to commit to or otherwise. Where a criminal act is designed to create a sense of fear or insecurity in the mind of the general pubic that can only be adjudged by keeping in view the impact of the alleged offence and manner of the commission of alleged offence. There is absolutely no doubt in our mind that the Act was brought into force for the prevention and elimination of terrorism, sectarian violence and for expeditious dispensation of justice in the heinous offences as stipulated in the Act itself. It is, however, to be noted here at this juncture that so far as the concept of "terrorism" is concerned there is no substantial change between the Suppression of Terrorist Activities (Special Courts) Act (XV of 1975) and the Anti-Terrorism Act (XXVII of 1997) except a few minor changes having no bearing on the meaning and scope of terrorism. We have also surveyed the case law on the subject to know what exactly the "terrorism" is.
In case titled Muhammad Farooq v. Ibrar (PLD 2004 SC 917) a similar proposition was examined and it was held as under:--
"The very object to promulgate Anti-Terrorism Act, 1997 was to control the acts of terrorism, sectarian violence and other heinous offences as defined in Section 6 of the Act and their speedy trials. To bring an offence within the ambit of the Act, it is essential to examine that the said offence should have nexus with the object of the Act and the offences covered by its Sections 6, 7 an 8. On bare perusal of sub-clauses (b), (d), (h) and (i) of sub-section (1) of Section 6 of the Act, it is abundantly clear that the offence which creates a sense of a fear or insecurity in society, causes death or endangers a person's life, involves firing on religious congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing to spread panic, or involves any forcible takeover of mosques or other places of worships, falls within its ambit." (Emphasis provided).
"9. Learned counsel for the petitioner relied upon the rule laid down in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) and in particular the observations made at page 1493 of the report which are reproduced below to contend that merely because an army officer was killed would not itself be sufficient to attract the provisions of the Anti-Terrorism Act:--
"It was urged by Mr. Gilani, learned counsel for some of the petitioners, that a perusal of the amended Schedule indicates that if the victim of a murder case under Section 302, P.P.C. is a member of police, armed forces or civil armed forces or a public servant, the accused of such a case is triable under A.T.A. even if the murder had taken place on account of personal enmity and had nothing to do with the discharge of his official functions/duties. Whereas Ch. Muhammad Farooq, learned Attorney-General, has submitted that in order to terrorise the public servants so that they may not discharge their functions/duties efficiently and effectively, the terrorist started killing public servants, for example, the Commissioner of Sargodha, a Secretary of the Provincial Government in Lahore, Superintendent of Police, Gujranwala, and the Managing Director, K.E.S.C., Karachi, were brutally murdered. According to him, the above acts of terrorism were intended and designed to create panic amongst the public servants. It will suffice to observe that if a Government servant or any other employee of the Government functionaries is murdered because he belongs to the above service and that there was no enmity or plausible reason for commission of the above offence such a killing is an act of terrorism within the ambit of the Act and can lawfully be included in the Schedule, but if the murder is committed solely on account of personal enmity such a murder will have no nexus with the above provisions of the Act and will not be triable under the Act. However, this is a matter to be decided by the Special Court under Section 23 of the Act, Special Court has been empowered to transfer a case to a regular Court if after taking cognizance of an offence, it is of the opinion that the offence is not a scheduled offence.
These observations have been made in relation to inclusion of offence of murder of civil servants, etc., in the schedule as a separate entity and do not in any manner have the effect of excluding from their applicability the other provisions of the Act such-like Section 6(b) (ibid) which if otherwise is applicable in the case of murder, may be of army man or a public servant as ordinary person on the touchstone of criteria i.e., the same had the tendency or the effect of likely to create terror or feeling of insecurity."
A similar situation was also dealt with by this Court in case titled Zia Ullah v. Special Judge (2002 SCMR 1225) wherein it was concluded as under:
"3. We have heard at length the learned counsel on behalf of the parties and have carefully examined the entire record. Let us mention here at the outset that the impugned order cannot be termed as speaking one but on the contrary it is perfunctory and appears to have been passed in a cursory manner by ignoring the objects and reasons for the enactment of the Anti-Terrorism Act, 1997. The alleged murder was committed in a wanton, reckless and brutal manner and resultantly learned Advocate who was in his robe was done to death in Court vicinity. The gravity of the offence could not be diminished or minimized merely on the ground that alleged murder was not committed exactly within the Court premises as pressed time and again by the learned counsel for the respondents. It is to be noted that one Assistant sub-Inspector of Police was seriously injured by means of fire-arms. We are not having the slightest doubt while holding that the alleged occurrence must have caused fear, panic and wave of sensation and thus the matter squarely falls within the ambit and jurisdiction of Special Court. The contents of F.I.R. have neither been read properly nor understood in its true perspective which resulted in serious miscarriage of justice on the one hand and protracted the trial on the other without any fault of the affected party. It is worth mentioning that the statements of about six witnesses have been recorded and thereafter invocation of Constitutional jurisdiction by filing writ petition by the respondents demonstrates propensity to get the trial prolonged for the reasons best known to them. It is not conceivable that on the one hand the prevailing judicial system is blamed for inordinate delay but when a serious attempt is made for the expeditious disposal of the case the affected parties tried their best to create numerous hurdles under the garb of law to get it delayed. The case in hand can be cited as a classic example for such trend. The learned Sessions Judge is Presiding Officer of the Special Court constituted under the Anti-Terrorism Act, 1997 and his judgment can be assailed before High Court and ultimately this Court, hence the question of any prejudice does not arise. In our considered view no bar whatsoever has been imposed under the Anti-Terrorism Act, 1997 that such cases could not have been tried by the Special Court. Mr. Hameed Ullah, Advocate was on his way to sub-Divisional Court Chiniot to enter appearance in a murder case and Akbar Khan, Assistant sub-Inspector of Police was going to get his statement recorded in a criminal case got registered under Sections 302, 324, 148 and 149 P.P.C. It is an admitted feature of the case that indiscriminate firing was made which caused the fateful occurrence and created sensation and wave of panic which amounts to sense of insecurity not only amongst a section of public but community of Advocates as well. We have given a careful consideration to the relevant provisions of the Anti-Terrorism Act, 1997 and we are of the view that if the accumulative effect of the provisions as contained in Sections 6(i)(b), 6(2)(a)(m) and (n) is examined the only irresistible conclusion would be that the alleged occurrence falls within the ambit of Section 6 of Anti-Terrorism Act, 1997."
"3. The venue of the commission of a crime; the time of occurrence, the motive which had led to the commission of a crime and the fact whether the said crime had or had not been witnessed by the public-at-large are not the only factors determining the issue whether a case did or did not fall within the parameters of the ATA of 1997. The crucial question is whether the said crime had or had not the effect of striking terror or creating a sense of fear and insecurity in the people or any section of the people. Needless to mention here that a crime of the kind in hand committed even in a remote corner does not remain unnoticed in the area in which is committed or even in the country on account of the print and electronic media. Seven persons being butchered in a house at night is not the kind of occurrence which would not create terror and horror in the people or any section of the people."
"7. It would thus appear that ordinary crimes are not to be dealt with under the Act. A physical harm to the victim is not the sole criterion to determine the question of terrorism. What is to be seen is the psychological effect produced by the violent action or with the potential of producing such an effect on the society as a whole or a section thereof. There may be a death or injury caused in the process. Thus where a criminal act is designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquility of the society, the same may be treated to be a terrorist act. There may be just a few killings, random or targeted, resorted to with single mindedness of purpose. But nevertheless the impact of the same may be to terrorise thousands of people by creating a panic or fear in their minds.
In the present case, we, prima facie, find that the occurrence took place during the peak hours of the day on the busy Court Road near the District Courts, Lahore, wherein four persons while on their way to attend the Court were allegedly murdered by the use of kalashnikovs. The cumulative fall-out of the occurrence as to the time, place and manner of the act created a sense of the fear and insecurity in society. The case was, therefore, triable by the Anti-Terrorism Court established under the said Act in view of its peculiar facts and circumstances as also the law and order situation prevailing in the country. In the case Ziaullah (supra) a similar view as taken by this Court in somewhat similar circumstances."
The judicial consensus seems to be that striking of terror is sine qua non for the application of the provisions as contained in Section 6 of the Act 1997 which cannot be determined without examining the nature, gravity and heinousness of the alleged offence, contents of the FIR, its cumulative effects on the society and a class of persons and the evidence which has come on record. There could be no second opinion that where the action of an accused person results in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in a particular vicinity it amounts to terror and such an action squarely falls within the ambit of Section 6 of the Act 1997.
As mentioned herein above the murder of Prof. Abdul Lateef was not the result of personal enmity but Prof. Abdul Lateef was murdered as he had not allowed the appellant Shahzad to use unfair means in the examination hall which was his official duty. The manner in which the murder of late Prof. Abdul Lateef was committed created sensation and terror in the entire teaching class. As mentioned herein above the murder was not the result of personal enmity and committed with due deliberation, premeditation, common intention and prior concert of mind. It was a brutal murder committed by "hooligans" as the word "student" cannot be used for them because the offence was committed in a barbaric and brutal manner and Prof. Abdul Lateef was done to death merely for the reason that he had not allowed the appellants to use unfair means. This fact was not something personal but it was purely an official act and under the garb of "personal enmity" as pressed time and again the question of any leniency does not arise. This brutal murder was an act of terrorism and the sentence of death has rightly been awarded under Section 7-A of the Act 1997.
The nutshell of the above-mentioned discussion is that Criminal Appeals Nos. 396, 397, 398 and 399 of 2003 are hereby dismissed and Criminal Appeal Bearing No. 400 of 2003 is accepted. The impugned judgment is set aside. The judgment of learned trial Court shall remain intact whereby Sharafat Ali and Shehzad alias Shera alias Toti were convicted under Section 7-A of the Act 1997 read with Section 302 and 149 PPC for committing the murder of Prof. Abdul Lateef and were sentenced to death with fine of Rs. 2,00,000/- each and in case of default further to suffer R.I. for one year to each of the accused and Zahid Imran, Muhammad Afzal, Shahid Ali, Muhammad Anwar and Sajid Masih were convicted and sentenced for imprisonment for life and with fine of Rs. 1,00,000/- each under the above-mentioned section and in default whereof to undergo R.I. for one year to each of them. The above named appellants were also convicted and sentenced under Section 148 PPC to suffer three years R.I. and fine of Rs. 10,000/- each and in default whereof to undergo R.I. for six months with benefit of Section 382-B Cr.P.C., if any will be available to accused and all the sentences will run concurrently.
(A.A.) Sentence enhanced.
PLJ 2006 SC 728 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Raja Fayyaz Ahmad, JJ.
MUHAMMAD HANIF and another--Petitioners
versus
STATE--Respondent
Jail Petition No. 283/2002, decided on 11.10.2005.
(On appeal from the judgment dated 9.5.2002 of Lahore High Court Lahore, passed in Crl. A. No. 195-J, 997, 998/2000 and M.R. No. 46-T-2001)
(i) Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Constitution of Pakistan (1973), Art. 185(3)--Offence of murder--Conviction and sentence of death awarded to appellants assailed--Courts below had rightly concluded that deceased met with un-natural death due to injuries suffered by him on account of violence/severe bodily assault and sufficient in ordinary course of nature to cause death of deceased, which defence has failed to discredit and impeach--Medical evidence furnished due corroboration to dying statement of deceased--Note appended below statement of deceased also render support to contents of dying statement--As per medical opinion deceased was capable of making statement at the time of making dying statement--No delay appears to be in lodging F.I.R--Deceased had made dying statement and soon thereafter F.I.R. was registered--Medical evidence on material particulars, remained firm, consistent and convincing--Defence had failed to discredits medical evidence--Findings of Courts below convicting and awarding death sentence to appellant being based on correct appraisal of evidence on record, do not warrant interference--Leave to appeal was thus, refused. [Pp. 735, 736 & 737] A, B, C & E
(ii) Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Offence of murder--Conviction and sentence of death awarded to appellants assailed--Prosecution evidence was sufficient to prove case of prosecution--Defence version has been disbelieved by High Court and trial Court for cogent and plausible reasons in juxta-position with prosecution case in the light of well settled principles of administration of criminal justice--Prosecution has thus, fully proved its case against appellants. [P. 736] D
Sardar M. Siddique Khan, ASC for Petitioners.
Nemo for State.
Date of hearing : 11.10.2005.
Order
Raja Fayyaz Ahmed, J.--Petitioners, Muhammad Hanif and Zulfiqar Ali, seek leave to appeal against the judgment dated 9.5.2002 of a learned Division Bench of Lahore High Court, Lahore, whereby Criminal Appeals filed by the petitioners were dismissed and Murder Reference forwarded by the trial Court to their extent was answered in affirmative.
The petitioners have been found guilty under Sections 302(b)/34 PPC and both of them sentenced to death as Ta'zir as well as found liable to pay Rs. 2,00,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. in default to pay the same to further suffer six months SI each. They have also been sentenced to imprisonment for life under Section 394/34 PPC and to pay fine of Rs. 50,000/- in default of payment of fine to suffer three months SI each vide judgment dated 13.7.2000 passed by the learned Special Judge, Anti Terrorism Court No. III, Lahore in relation to case Crime No. 357 of 1998 registered with Police Station Manga Mandi, District Lahore. The Murder Reference was also forwarded under Section 374 Cr.P.C. by the learned Anti Terrorism Court No. III, Lahore for confirmation of the death sentence.
Learned High Court vide judgment dated 9.5.2002, which has sought for to be impugned through this petition, dismissed the Criminal Appeals Nos. 195/J/2000, 998/2000 preferred by the petitioners against their convictions and sentences and the Murder Reference No. 46/T/2001 was answered in affirmative to the extent to petitioners Muhammad Hanif and Zulfiqar Ali by confirming the death sentence awarded to the petitioners by the learned trial Court except co-accused Ali Asghar and the Murder Reference to his extent has been answered in negative and he was acquitted of all the charges. Accordingly, Criminal Appeal No. 997/2000 filed by accused Ali Asghar was accepted.
Pursuant to Fard-e-Bayyan of injured namely, Mulazam Hussain Shah (Exh. PF) recorded on 14.9.1998 by Haji Muhammad ASI (PW-13), transmitted to the police station alongwith his murasila, case FIR No. 357/1998 was registered on 14.9.1998 at 2/30 a.m., initially under Section 394/34 PPC against the nominated accused Muhammad Hanif and Zulfiqar Ali and an unknown person to whom the attributed role was ascribed by the injured in his statement made before the police officer. As the injured succumbed to injures, Section 302/34 PPC were also inserted/added in the relevant column of the papers.
Down below the Fard-e-Bayyan of the injured Exh. PF, note has been recorded by the police officer to the effect that on receipt of information of the incident, he alongwith the other officials reached to the place of occurrence before whom Mulazam Hussain made his statement verbally in respect or the incident, which was read over to the injured, who on having admitted the contents of his statement reduced into writing by the police officer, as correct affixed his thumb impression and attested by the police officer. It has further been noted by the police officer in his note written below the Fard-e-Bayyan that on physical inspection of the person of the injured, he found swelling on his both eyes, bleeding from his right ear, swelling wound on the left and right side of his waist and also the injured complained about pain throughout his body. Thus, as per note he sent the injured to the Rural Health Centre Manga Mandi for examination and medical treatment.
In his Fard--e-Bayyan, the injured disclosed that he deals in amulets, knotted strings (recourse to deity) and remains under obligation to pay visits to the shrines. On 13.9.1998, according to the injured, he came to the Darbar of Baba Kashmira in Mohallah Ali Hassain Abad, behind Bata Shoe Factory, Multan Road, Lahore and was having with him a cash amount of Rs. 33,300/- and after Ziarat of Darbar, Mutawalis of Darbar namely, Zulifqar Ali and Muhammad Hanif took him to their house as their guest. It has further been disclosed in his Fard-e-Bayyan that he was sleeping in the courtyard of their house when at about midnight he was awakened by the petitioners and another unknown person to whom he could identify if produced before him, who were equipped with sota, danda and churri respectively. The unknown person pointed the churri on him and all the three persons frightened him by threatening him to be killed and took him inside the room forcibly whereupon accused Zulfiqar Ali and Muhammad Hanif subjected him to severe physical assault by means of danda and sota and also took out forcibly the amount from his pocket and he fell unconscious on the ground. Lastly, he disclosed that when he regained his senses, he found the accused having fled away so he came out of the room and was on his way to lay information to the police when a police officer came across to whom he, as above noted, reported the matter. The petitioners and Ali Asghar were arrested during the course of investigation of the case. Finally, on completion of the investigation they were sent up for trial under Sections 302/394/34 PPC before the learned Anti Terrorism Court. The accused persons did not plead guilty to the charge and the prosecution, to substantiate the accusation, produced 13 witnesses namely, Dr. Tahir Ismail M.O. Rural Health Centre Manga Mandi (PW-1), Muhammad Yaqoob FC No. 4780 (PW-2), Muhammad Nawaz FC (PW-3), Gulab Shah Chowkidar (PW-4), (He identified the dead body of his father Syed Mulazam Hussain), Nasir Ahmed SI PS Manga Mandi (PW-5), Dr. Tanveer Hameed (PW-6), M.O. Jinnah Hospital, Lahore (He provided emergency treatment to the injured), Dr. Muhammad Aslam M.O. Jinnah Hospital, Lahore (PW-7), (He issued the death certificate Exh. PH), Hameedud Din Chishti, Draftsman (PW-8), Dr. Muhammad Maqsood M.O. of KEMC Lahore (PW-9) (He conducted the postmortem examination of the dead body of the deceased), Muhammad Iqbal resident of Mohallah Ali Hussain Abad, cultivator/peasant (PW-10), (declared hostile), Muhammad Siddique SI/IO PS Manga Mandi (PW-11) Muhammad Younas SI/2nd IO (PW-12), (He produced the injury statement of Mulazam Hussain Shah, Exh. PB, complaint Exh. PF and an application made to the doctor seeking permission to record the statement of the injured Exh. PJ, reduced into the writing by Haji Muhammad ASI (PW-13) to which he is familiar including the signatures of the scriber) and; Haji Muhammad ASI (PW-13).
All the three accused persons in their statements recorded under Section 342 Cr.P.C. denied the accusation and incriminating pieces of evidence adduced at the trial by the prosecution in toto. None of them opted to record the statement on oath in disproof of the charge within the purview of Section 340(2) Cr.P.C. despite such right and opportunity made available to them by the learned trial Court. However, the petitioner/accused Muhammad Hanif produced two witnesses in defence namely Barkat Masih (DW-1), and Allah Bukhsh (DW-2), who advanced the plea of alibi.
We have heard Mr. Sardar Muhammad Siddique Khan, learned counsel for the petitioners at length. The learned ASC contended firstly; that the prosecution's case primarily rests upon the statement of the injured, who later on succumbed to injuries, consequently; the same was treated as dying declaration/statement of the deceased on which simplicitor reliance cannot be placed for the reason that the incident allegedly took place at midnight and was an un-witnessed crime, secondly; that in view of the medical evidence adduced at the trial by the prosecution, it is doubtful that the victim was capable after hours of receiving the injuries to be in proper senses to make the statement before the police officer and thirdly; sequence of events as well, caused serious doubts to believe that the police officer happened to come across the victim, thereafter, recorded his statement, which formed the basis of registration of the case after an unexplained delay but such material aspects of the case germane to the findings of the guilt have not been considered by the learned Courts below in its true perspective. Hence, it is a fit case to grant leave to appeal and the petitioners are entitled for acquittal on the charge as the prosecution case suffered from inherent improbabilities and doubts.
The contentions put forth on behalf of the petitioners by the learned ASC have been considered by us in the light of the record of the case carefully and minutely. The judgments sought to be impugned through this Jail Petition rendered by the learned High Court and the trial Court have also been scrutinized in the light of the evidence adduced at the trial by the prosecution, plea of the accused and the defence evidence.
Haji Muhammad ASI (PW-13) is the principal witness of the prosecution, who deposed that on 14.9.1998 he was posted at police post Sundar of Police Station Manga Mandi Lahore and was on patrolling duty alongwith some police officials when he received information that an injured person namely Mulazam Hussain Shah, was present at Darbar Baba Kashmira in Mohallah Ali Hassan Abad, therefore, he proceeded to the site where the injured made his statement before him produced by the witness as Exh-PF mentioned in Para No. 6 supra. This part of the statement of the PW was not challenged in the cross-examination conducted by the learned defence counsel on behalf of the petitioners. Hence, the fact stands admitted that PW-13 on receipt of information went to the site and recorded the statement of injured Mulazam Hussain Shah (deceased). The PW categorically stated that a that time the injured was in his full senses and after recording his statement into writing the same was read over to the injured, who in acknowledgement and correctness of the contents of the statement reduced into writing by the Police Officer affixed his thumb impression. He also prepared the injury statement of the injured/deceased as Exh-PB, noted as well, down below the statement of the injured. According to the PW, he sent Exh-PF to Police Station Manga Mandi through Ahmed Yar FC for formal registration of FIR, whereas the injured was sent to Rural Health Centre, Manga Mandi and from there he was referred to Jinnah Hospital, Lahore for management and medical treatment. He also moved an application Exh-PJ at 6.00 p.m. on the same day to the doctor for seeking permission to record the statement of the injured, who made an endorsement on the application that the injured was not fit to make the statement, the witness, however, on his own, explained that the injured had become unconscious. He denied the suggestion put by the defence in cross-examination that when he proceeded to said Darbar and recorded the statement of the injured, the injured, in fact, was unconscious and was ongoing shock. The suggestion put by the defence on the one hand indicate that the defence attempted to introduce the plea that at the relevant time the police officer did come across to the injured but he was found to be in the state of unconsciousness hence was incapable to make the statement to the police officer and on the other hand the fact deposed by the witness that he went to the given site and was confronted with the injured stands not disputed and, therefore, in view of the trend of cross-examination to which PW-13 was subjected, it was appropriately considered and examined by the learned Courts below as to whether PW Haji Muhammas ASI had any ill-will, grudge or any motive against the petitioners to reduce into writing a false and fake attributed statement of the injured on which he also managed to affix the thumb impression of the said person/injured though allegedly claimed to be incapable to make the statement on account of the injuries suffered, which eventually led him to the state of unconsciousness but nothing has been brought on record, as also rightly held by the learned Courts below to suggest that PW-13 had any reason to falsely involve the petitioners in the case by making a fake attributed statement of the injured and similarly no material could be brought on record through the process of cross-examination and otherwise to indicate reasonably or to believe or be in the circumstances of the case reasonable or probable to believe that the injured had any motive despite having been subjected to serious assault and suffering from severe injuries in the given situation to absolve the real culprit/s and preferred to involve the innocent persons/the petitioners, who provided free boarding and lodging facilities to the injured in their house adjacent/near to the Darbar and were his hosts.
Dr. Tahir Ismail, MO RHC Manga Mandi, Lahore has been produced as PW-1 at the trial, who stated that on 14.9.1998, he was posted at the RHC Manga Mandi and medically examined Mulazam Hussain Shah brought by Muhammad Nawaz FC. On examination, he noted the following injuries on the person of the injured:--
"1. A brused swelling 4 x 5 cm with blackening of right eye.
A brused swelling 6 x 4 cm with blackening of left eye.
A contused swelling 24 x 22 cm over mid of back of right chest.
A contused swelling 20 x 16 cm over mid of back of left chest.
Bleeding from right ear."
After providing necessary management, PW-1 referred the injured to the Jinnah Hospital Lahore for further treatment and management and according to PW-1 all the injuries noted above in the MLR produced by him as Exh-PA were caused by blunt weapon. The medical officer was not cross examined on behalf of the petitioners by their counsel despite opportunity afforded by the learned trial Court. Hence, the evidence of the medical officer (PW-1) and contents of MLR shall be deemed to have been admitted by the accused persons. The medical officer, who at the first instance examined the injured did not note in the MLR or deposed before the trial Court that the injured when brought to him in the Rural Health Centre Manga Mandi was unconscious and undisputedly sometime for taking the injured to the Rural Health Centre Manga Mandi must have been consumed but till then when examined by PW-1 was not found to be unconscious. Therefore, there seems to be no reason to disbelieve PW Haji Muhammad ASI that the injured was found to be in full senses whose statement he reduced into writing as stated to him by the victim, contents whereof were also admitted to be correct by Mulazam Husain Shah injured/deceased, who in token thereof affixed his thumb impression on such statement. The affixation of thumb impression has also not been challenged or disputed by the defence at the trial and there is no reason to believe that Exh-PF was not made to and recorded by the police officer at the instance of the injured and necessary corroboration as to the capability of the injured to make the statement stands provided from medical evidence of Dr. Tahir Ismail (PW-1). The injuries noticed by PW-13 after the body examination of the injured recorded down below the Exh-PF also get necessary corroboration from the MLR produced by PW-1 in which he noted the injuries found on the person of Mulazam Hussain Shah. On referral to Jinnah Medical Hospital, Lahore, the injured was attended by Dr. Tanvir Ahmed (PW-6) posted in Surgical Unit-I, who conducted the initial resuscitation investigations, provided endotracheal intubation and the chest tube intubation. He produced the endorsement made by him to the above noted effect on the `murasila' sent to the Registrar, Jinnah Medical Hospital, Lahore by Muhammad Siddique S.I. P.S. Manga Mandi stating therein that the injured was brought in hospital on 14.9.1998 but having succumbed to the injuries, the request for conducting post-mortem examination of the dead body of the deceased was made. The same was forwarded to the Registrar Surgical Unit-I for necessary action and to provide operation notes by the DMS Administration on 16.9.1998. On which, PW-6 on the even date made the above referred note. The witness was subjected to cross-examination by learned defence counsel and as regards the condition of the patient as it stood in the hospital ward; the PW stated that in absence of the hospital record he is not in a position to make the answer about the condition of the patient. The fact remains that it does not transpire even from the evidence of Dr. Tanvir Ahmed PW-6 that on 14.9.1998, the date on which injured Mulazam Hussain Shah expired, he was unconscious when brought to the doctor, whereas Dr. Muhammad Aslam M.O. Jinnah Hospital, Lahore (PW-7) issued death certificate of deceased Mulazam Hussain on 16.9.1998, as Exh. PH. Dr. Muhammad Maqsood (PW.9) on 16.9.1998 being on duty at KEMC conducted the autopsy of dead body of deceased Mulazam Hussain Shah brought to him on 15.9.1998 by Muhammad Nawaz FC and Muhammad Saleem and as per death certificate Exh-PH, referred to in the post-mortem report, the deceased died on 14.9.1998 at 10.00 p.m. He noted the following injuries on the dead body of the deceased with the note that Injuries Nos. 1 and 2 were corresponding with those mentioned in the MLR and Injury No. 3 was corresponding with the treatment notes. During the process of autopsy conducted by PW-9, all the observations and findings noted by him have been given in the autopsy report produced as Exh.-PI, Exh.-PI/1, Exh-PI/2. The cause of death of the deceased noted in the autopsy report by the doctor and deposed before the trial Court is reproduced below:--"The injuries stated above are anti-mortem and Injury Nos. 1 and 2 caused by blunt means. Injury No. 3 was caused due to Surgical Intervention. The cause of death in this case was damage to brain, meninges and their blood vessels under Injury No. 1 bleeding to comma and death of the person who had already received fractures of ribs on right side of chest.
The probable time between injury and death was (Hospital death) and between death and P.M. as 40 to 48 hours."
In our considered opinion the learned Courts below in view of the medical evidence referred to above rightly held that the deceased met with an unnatural death due to the injuries suffered by him on account of violence/severe bodily assault and sufficient in ordinary course of nature to cause death of the deceased, which the defence has failed to discredit and impeach. It has been rightly concluded by the learned High Court and the trial Court on appraisal and scrutiny of evidence that medical evidence furnished due corroboration to the dying statement of the deceased recorded by Haji Muhammad ASI (PW-13). The note appended below the statement of the deceased also render support to the contents of the dying statement of the deceased to the extent, as it pertains to the contents of the recorded Fard-e-Bayyan of the deceased. There is no substance in the contention that on account of injuries suffered by the deceased, he was rendered incapacitated or not even conceivable to have narrated about the alleged incident in detail or spoken about the same to the police officer, who stated to have reduced the same into writing. It is worthwhile to note that opinion of the doctors, who have provided emergency treatment, examined the injured and conducted the post-mortem examination was not given any such suggestion by the defence counsel, therefore, in absence of any positive indication or any supporting material it could not be said that in view of the evidence of the PWs referred to above that the deceased at the relevant time was unconscious or incapable on account of the injuries suffered by him to have spoken to PW-13 about the incident having occurred in the preceding night.
The deceased in his statement produced as Exh-PF no doubt had stated that petitioners, Zulfiqar Ahmed and Muhammad Hanif caused serious injuries on his person by means of danda and sota blows and took out forcibly a cash amount of Rs. 33,000/- from his pocket and he fell unconscious on the ground and when he regained his senses he found the nominated accused missing/fled away, he came out of the room in order to inform the police and came across the police officer cannot be disbelieved and so even stated by PW-13 at the trial that on receipt of information he went to the site where he found Mulazam Hussain Shah in an injured condition, who made the statement before him and narrated about the incident, which was reduced into writing by the said witness. Also, it can be believed that after having suffered injuries, the deceased fell unconscious and after a while regained his senses, as possibility of regaining senses cannot be excluded on account of the nature of the injuries, which vary from case to case in respect whereof no hard and fast line in absence of supporting material can be drawn. There appears to be no delay in lodging the FIR of the case against the accused persons, as the time of recording of the statement of the injured, who succumbed to injuries on the same day, has not been mentioned/given on it by the police officer, however, the note reduced into writing below the statement of the injured the time has been mentioned as 2.00 p.m. and the FIR Exh. PF/1 was registered with the police station at 2.30 p.m., hence, in such view of the matter, it cannot be assumed that inordinate delay had occurred in the registration of the case, which required explanation on the part of the prosecution. The sequence of events up to the death of the deceased do not indicate any inherent doubt substantial in nature and defect in the proceedings, therefore, in absence of any solid reason or material, the possibility of the manipulation of statement of the injured made before the police officer stands excluded. The medical evidence adduced at the trial referred to hereinabove fully corroborates to the case of the prosecution, which does not suffer from any inherent doubt or material discrepancy. Dr. Tahir Ismail (PW-1) and Dr. Muhammad Aslam (PW-7) were not cross-examined by learned defence counsel whereas Dr. Tanveer Hameed (PW-6) and Dr. Muhammad Maqsood (PW-9) were subjected to cross-examination by the learned counsel for the petitioners but nothing material favourable to the petitioners could be brought on record. The medical evidence, produced through the above said professionals on material particulars, remained firm, consistent and convincing. None of the petitioners, as hereinabove noted, despite the opportunity made available to them by the learned trial Court appeared as his own witness in defence in disproof of the charge within the purview of Section 340(2) Cr.P.C., however, petitioner, Muhammad Hanif, produced two witnesses in defence namely, Barkat Masih and Allah Bakhsh. Barkat Masih (PW-1) deposed that two years ago petitioner Muhammad Hanif was present with him at Wara Tarkhanwala alongwith his cattles and similarly Allah Bakhsh (PW-2), who is the uncle of petitioner Muhammad Hanif, stated that the petitioner had come to Wara Tarkhanwala alongwith his cattles about two years ago. The defence evidence has been disbelieved by the learned High Court and trial Court for cogent and plausible reasons in juxta-position with the prosecution case in the light of well settled principles of safe administration of criminal justice. No part of the evidence available on record has been misconstrued, mis-appreciated or misread by the learned Courts below, which independently scrutinized the entire evidence in depth. The dying declaration of the deceased with stands the consistent and well settled principles set out by the superior Courts for believing or disbelieving such statement, which in our view in the given facts and circumstances of the case leaves no chance of mistake on the part of the dying man in identi-fying his assailants and the same is also free from being prompted and tipped from any outside quarter nor the same is inconsistent with the evidence and circumstances of the case. Haji Muhammad, ASI (PW-13), appeared in the witness box, has proved such declaration, who recorded the same and unimpeachably proved its contents to be correct as narrated to him by the injured at the relevant time, who also, though not a requirement of law, affixed his thumb impression and has been proved by the witness. Such a declaration becomes a substantive evidence as it has been successfully proved by the prosecution that it was made by the dying man (deceased). The dying statement of the deceased further gets necessary corroboration as hereinabove discussed from the medial evidence and the circumstances of the case, and; the defence has miserably failed to discredit it.
For the foregoing reasons, in our considered view, the learned ASC for the petitioners has failed to make out a case for leave to appeal, consequently; the petition is dismissed and leave to appeal is refused.
(A.A.) Leave refused.
PLJ 2006 SC 737 (Appellate Jurisdiction)
Present: Iftikhar Muhammad Chaudhry, C.J., and Hamid Ali Mirza, J.
FEDERATION OF PAKISTAN through SECRETARY ESTABLISHMENT DIVISION and others--Appellants
versus
MUHAMMAD TAYYAB--Respondent
C.A. No. 1018 of 2005, decided on 7.12.2005.
(On appeal from the judgment dated 17.6.2001, in W.P. No. 16600 of 2003, passed by Lahore High Court, Lahore)
(i) Rules of Competitive Examinations, 2002--
----Para 11--Qanun-e-Shahadat Order (10 of 1984), Art. 129 (E)--Constitution of Pakistan (1973), Art. 185--Reserved seats allocated to Azad Jammu and Kashmir--Direction of High Court to appellants that respondent to appoint against one of seat allocated to Azad Jammu and Kashmir for the year 2002, assailed--Subsequently seats for Azad Jammu and Kashmir were reduced to one, thus, on account of such reduction, respondent, who otherwise was qualified for appointment on merits, was deprived of his right to be appointed against said allocated seat as per quota assigned to Azad Jammu and Kashmir--Seats for Azad Jammu and Kashmir were reduced on basis of plus/minus ratio on the ground that one seat had been given in advance to one of candidate in the year 1994, and that instead of deducting that seat from years 1995 to 2001, the same was deducted in the year 2002, thus depriving respondent of his seat to which he was entitled on basis of merit--Non-substraction/adjusmtent of advance seat for six years and non-production of statement of allocation for the year 1994--1995 till 2001, clearly showed malafide on part of appellants--Appellants having not come to Court with clean hands and having deliberately suppressed document from production, adverse presumption is to be drawn against petitioners in terms of Art. 129(g) of Qanun-e-Shahadat Order, 1984--Quota reserved seats cannot be reduced by reducing number of posts reserved for persons belonging to any class of area further year in which competitive examination was to be held.
[Pp. 744 & 745] A & B
(ii) Rules of Competitive Examinations, 2002--
----Para 11 --Constitution of Pakistan (1973), Art. 185--Plea relating to lack of jurisdiction of High Court--Such point having not been raised in High Court, cannot be allowed to be raised for the first time before Supreme Court. [P. 748] C
(iii) Rules of Competitive Examinations, 2002--
----Para 11--Constitution of Pakistan (1973), Art. 185--Quota of reserved seats allocated for Azad Jammu and Kashmir reduced--Such act was malafide and not warranted by law--Respondents' right as a citizen could not be taken away on frivolous ground of having adjusted seat in year 1994 of year 2002, on basis of plus/minus fraction principle--No interference was thus, warranted in judgment of High Court, which was maintained and affirmed. [P. 748] D
1993 SCMR 1124; PLD 1964 SC 598; PLD 2002 SC 706; PLD 2002 SC 823 and PLD 2002 SC 1100 ref.
Mr. Nasir Saeed Sheikh, D.A.G; Mr. Masood Khan Dy Secy. Estt & General (R) Jamshed Gulzar Kiyani, Chairman F.P.S.C. for Appellants.
Respondent in person.
Date of hearing : 20.10.2005.
Judgment
Hamid Ali Mirza, J.--This civil appeal with leave of this Court dated 28.7.2005 is directed against judgment dated 17.6.2001 in W.P. No. 16600 of 2003 passed by the Lahore High Court, Lahore, whereby writ petition preferred by the respondent was accepted by setting side the notification of even No. dated 29.10.2003 with the direction to the appellants that the respondent be appointed against one of the seat allocated to Azad Jammu & Kashmir for the year 2002.
Precisely stating the facts of the case as enumerated in the impugned judgment are that for the purpose of filling up the vacancies for the Civil Services of Pakistan, The FPSC issued a public notice for conducting the CSS Examination for the year 2002, to be held in the year 2003. As per the advertisement, besides the general seats, special quota was allocated to the four Provinces of the Pakistan, as also the AJ&K which in the case of latter was 2%. The total vacancies to be filled, as has been stated by the appellants' representative, were 159 and the quota for the AJ&K in the normal circumstances was three seats. The petitioner alongwith other contestants of the same category, appeared in the examination for the AJ&K's quota and according to the respondent he was at No. 2 on the merit list which position is not disputed by the appellants. However, a couple of days before the result was declared, the Appellant No. 2 Chairman Federal Public Commission issued a press note dated 30.10.2003 mentioning therein that pursuant to Paragraph No. 11 of the Rules of Competitive Examinations, 2002 (hereinafter called as the said Rules), the seats for the AJ&K have been reduced to one. Thus on account of this reduction, the respondent, who otherwise was qualified for appointment on merits, was deprived of his right to be appointed against the said allocated seat as per quota assigned to AJ&K, hence the respondent filed writ petition before the Lahore High Court, Lahore which was allowed as per impugned judgment, hence the present appeal is filed by the appellants to challenge the said judgment of the High Court.
We have heard learned counsel for the appellants and their representatives and the respondent in person and perused the record.
Learned Deputy Attorney General besides raising legal pleas has raised the main plea that the learned Single Judge has not properly appreciated the allocation of quota according to Sl.No. 28 of Esta Code and has grossly fallen in error and ignored the calculation of seat of AJ&K on the basis of 2% quota as well as plus/minus fraction of the previous years and erroneously held that the seats are to be filled for a particular examination, whatever the total seats, those have to be divided on the percentage of AJ&K. He further submitted that if vacancies are calculated without keeping in view the plus/minus fraction of the previous year the quota system could not be implemented and rationale to quota system would be defeated. He also submitted that when plus/minus fraction is applied on working out the distribution of seats to various regions, it is done under a proper system and in this regard record is maintained containing plus/minus fractional record of all the regions and further that when new seats are available, these are distributed keeping in view the previous account of each area, therefore all the available posts are distributed justly and equally. He further submitted that no right accrued to the respondent and he is not entitled to be appointed against the seat on merit as according to the calculation and plus/minus fraction as per available quota 2% of AJ&K after filling up one seat of the previous year i.e. of 1994 on account of order of Honourable High Court passed in Writ Petition No. 2765 of 1996 (Miss Asma Roohi Shah v. Hasan Kamran Bashir & others) and the other seat allocated to Miss Kalsoom Hai having merit than the respondent as such there being no seat available according to the policy and quota reserved for Azad Jammu & Kashmir, against which the respondent could be appointed, hence the impugned judgment cannot be sustained in law.
Respondent in person submitted that as per recruitment policy for the Competitive Examination 2002 at page 6 of the Rules 2002, admittedly quota allotted to AJ&K is shown to be two percent and he has secured 2nd position amongst the candidates of AJ&K as per result announced by the appellants and in view of the quota and the previous policy there being at least two seats falling in the share of AJ&K , he should have been adjusted against the second seat, first having been given to Miss Kalsoom Hai. He further submitted that the appellants unauthorisedly and arbitrarily purported to exercise authority under para 11 of the said Rules effecting the recruitment policy as set out at page 6 of the said Rules could not have been reduced the quota allocated to AJ&K by reducing the number of seats and adjusting one seat on the basis of plus/minus ratio having been given away in advance to Mst. Asma Roohi Shah in the year 1994. He submitted that the High Court in W.P. No. 2765/1996 vide order dated 20.5.2002 has disposed of the said writ petition as under:--
"It is stated by the learned Deputy Attorney General for Pakistan who is accompanied Mr. Dilshad Ahmad Babar, Section Officer that the grievance of the petitioner stands redressed inasmuch as she will continue to serve Income Tax Group. In this view of the matter, learned counsel for the petitioner stated that the petition be disposed of as having fructified. Order accordingly."
The respondent submitted that there was no order of the High Court to adjust Miss Asma Roohi Shah against the seat which would fall vacant for the examination to be held in 2002-2003 but the High Court passed an order on the basis of said statement of learned D.A.G. and the said S.O., therefore, there was no command from the High Court to allocate the seat of the respondent which would come to his fortune in the year 2002-2003 knowing that there was two percent quota of AJ&K as such there would be two seats for the said area and in case he succeeded in having first two positions in AJ&K, he would be entitled to at least one out of the two seats. He submitted that the appellants cannot reduced the quota and ratio in service provided under the Rules and guaranteed under the Constitution on the basis of having allocated a seat in advance to a candidate who was entitled to a seat fallen in quota in the year 1994-95 in which he/she had appeared. He has placed reliance upon Moosa Wazir & two others v. NWFP Public Service Commission (1993 SCMR 1124) in support of his contention that examination being competitive, practice could not be adopted of maintaining a list of qualified candidate or its revalidation by the Government for a longer period and requisitions made could not be adjusted out of such lists without proper advertisement otherwise it would be a violation of fundamental rights which would not be condoned on any ground of expediency or administrative convenience.
The main controversy which needs to be resolved is whether in the facts and circumstances of the instant case the respondent could be deprived of his seat of his region which in fact fell within the quota/ratio in service allocated to the said region without same having been notified earlier before inviting application for the examination for the year 2002-2003.
Learned D.A.G. has placed reliance upon Sl. No. 28 of Esta Code 1989 Edition which reads:--
"Sl. No. 28:
Reference Establishment Division's O.M. No. 8/9/72-TRV, dated August 31, 1973 (Sl. No. 27) Provincial/Regional quotas in respect of posts filled in a particular year are to be worked out to 1000th fraction. A Province/Region having larger fraction in accordance with the prescribed quotas, is allocated the vacant post of recruitment whereas the Province/Region not allocated the post due to smaller fraction, gets those fractions carried forward and added to its share in the subsequent year. The procedure for calculating and carrying forward the share of Province/Region, is indicated in Annexure-I.
[Authority.--O.M. No. 9/7/80-A. III, dated the 23rd September, 1980]."
Annexure I
Province/ Quota No. of Share Last Total Vacancies Balance
Region (%) Vacancies Year's be to be
C/F allowed carried
Balance forward
1 2 3 4 5 6 7 8
Sind (R) 11.4% 3 0.342 -- 0.342 -- +0.342
N.W.F.P. 11.5% 3 0.345 -- 0.345 1 -0.655
Balochistan 3.5% 3 0.105 -- 0.105 -- +0.105
FATA 4% 3 0.120 -- 0.120 -- +0.120
A/Kashmir 2% 3 0.060 -- 0.060 -- +0.060
2nd Year
Merit 10% 5 0.500 +0.300 0.800 1 -0.200
Punjab 50% 5 2.500 -0.500 2.000 2 --
Sind(U) 7.6% 5 0.380 +0.228 0.608 1 -0.392
Sind(R) 11.4% 5 0.570 +0.342 0.912 1 -0.088
N.W.F.P. 11.5% 5 0.575 +0.655 0.080 -- -0.080
Balochistan 3.5% 5 0.175 +0.105 0.280 -- +0.280
FATA 4% 5 0.200 +0.120 0.320 -- +0.0320
A/Kashmir 26 5 0.100 +0.060 0.160 -- +0.160
3rd Year
Merit 10% 2 0.200 -0.200 -- -- -0.200
Punjab 50% 2 1.000 -- 1.000 1 --
Sind(U) 7.6% 2 0.152 -0.392 -0.240 -- -0.240
Sind(R) 11.4% 2 0.228 -0.008 +1.140 -- +0.140
N.W.F.P. 11.5% 2 0.230 -0.080 +0.150 -- +0.150
Balochistan 3.5% 2 0.070 +0.320 +0.350 -- +0.350
FATA 4% 2 0.080 +0.320 +0.400 1 -0.600
A/Kashmir 2% 2 0.040 +0.160 +0.200 -- +0.200
Rule-11 of Rules for Competitive Examinations 2002 reads as under:
"11. The approximate number of vacancies in BS-17 to be filled on the results of this examination will be announced later. The Government, however, reserves the right to fill a smaller or larger number of vacancies than that announced".
Annexure-I indicates that under Column 2 share of quota of AJ&K is 2%, whereas under Column 3 No. of vacancies are 2 and under Column No. 4 its share is 0.040 in the total number of posts. While under Column 5 last years carrying forward balance is +0.160 whereas under Column 6 total posts +0.200 and under Column No. 7 in respect of vacancy there is NIL vacancy to be allotted and under Column No. 8 balance to be carried forward is shown as +0.200. For the purpose of clarification it has been mentioned under Sl. No. 29 of the ESTA Code as under:--
"(1) Posts in each grade should be considered separately for purposes of allocation of the prescribed merit and Provincial/Regional quotas.
(2) The Provincial/Regional quotas do not apply to posts filled by promotion. These are applicable to direct, including lateral entry, appointments.
(3) Vacancies which cannot be filled by candidates belonging to the Province or region to which the vacancy is allocated should be carried over and re-advertised at a later date.
(4) Posts in the Ministry/Division should be allocated separately from posts in Attached Departments and Subordinate Offices. In other words, the allocation should be made separately for each Department, Office or Institution.
(5) Provincial/Regional quotas do not apply to posts filled by transfer of Government servants to posts in equivalent grade whether on deputation or on secondment as in the case of military officers.
(Authority.--O.M. No. 8/15/73-TRV, dated the 28th November, 1973)"
Paras (vi) to (viii) of the Concise Statement/skeletion of arguments filed by the appellants reads as under:--
"(vi) It is stated these rules are being followed in accordance with the O.Ms since 1973 without any transgression. The definite share of percentage cannot be followed being humanly impossible. Fraction of a person cannot be employed. As such the fraction has to be converted to whole numbers according to a set of principles and laid down criteria so that any whimsical exercise is avoided.
(vii) This laid down criteria ensures the participation of different provinces and regions according to their share as per Article 27 of the Constitution of Islamic Republic of Pakistan.
(viii) Plus/minus fraction rule simply means that when the quota is divided on the number of seats available and if a fraction is obtained, which is less than half, it will be carried over to the next year and if it is more than half, extra candidate in this quota will be adjusted in the same year leaving the fraction to be subtracted from the same quota in the ensuring year."
The appellants in their concise statement have admitted that fraction cannot be converted to whole number unless fraction exceeds more than half as per universal principle laid down and further that participation of different provinces and regions are ensured to have their share as per Article 27 of the Constitution of the Islamic Republic of Pakistan, 1973 and further plus/minus fraction simply means that when quota is divided on the number of seats available and if fraction is obtained much less than half, it is carried over to the next year and if it is more than half extra candidate in this quota will be adjusted in the same year leaving the fraction to be subtracted from the same quota in the ensuring year.
In the instant case, the appellants have filed statement showing allocation to Azad Jammu & Kashmir for the five years viz. 1998 to 2002 but have not filed statement showing allocation for the year 1994-95 so as to find out what were the number of vacancies allocated in the year 1994-95 and what was the share and what was the position with regard to minus/plus ratio in the relevant year 1994-95 when a seat was in advance given away to Miss Asma Roohi Shah as per statement of the appellant's representative and not under the order of the High Court. It is not clear as to why seat allocated in the year 1994-95 to Miss Asma Roohi Shah was not subtracted from the quota in the ensuring year viz. from 1995 till 2001 during the period of six years. The non-subtraction/adjustment of advance seat for six years and non-production of statement of allocation for the year 1994-95 till 2001 clearly manifest mala-fides upon the part of the appellants leading to a legal conclusion that the appellants have not come with clean hands before this Court and have deliberately suppressed the document from production, therefore in view of Article 129 and illustration (g) of the Qanun-e-Shahadat, 1984, adverse presumption is to be drawn that if it would have been produced, same would have been unfavourable to the appellants who withheld the same, as it was their duty to produce being custodian of the record. Reference may be made to M. Saeed Sehgal v. Kazi Mhurshid Hassan, Proprietor, India Film Bureau (PLD 1964 SC 598) wherein this Court at page 611 has observed:
"It may be pointed out here that there could have been no difficulty for the appellant to produce his accounts of these transactions, for, as already indicated, the moneys were being drawn from out of a cash credit account and the deposits were also being made into the same account in reimbursement. Statements furnished by the Punjab National Bank could, therefore, have been easily produced. The failure to call for such accounts certainly raises a presumption that if those accounts, which were available, had been called for, they would not have supported the appellant's case."
In fact the appellants should have kept in view the object of Article 27 of the Constitution of the Islamic Republic of Pakistan and should have shown their magnanimity to the smaller region/province/area in giving or adjusting to the respondent a seat which area and region have smaller fraction of quota in the vacancies.
"Provided that, for a period not exceeding forty years from the commencing day, posts may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan."
Quota reserved cannot be allowed to be reduced by reducing the number of posts reserved for the persons belonging to any class of area for the year in which competitive examination was to be held.
"2. Above distribution of vacancies has been made keeping in view the plus/minus fraction of the last year's Examination and carried over vacancies have been added in the respective Groups of the concerned Provinces/Regions.
Allocation of candidates to one or the other Service/Occupational Group will be made keeping in view the suitability or unsuitability of the candidates as determined by the Commission, the merit position, preference of the candidates and the quota of Provinces/Regions as set out in the Rules for the Examination.
The Government, however, reserves the right to fill a smaller or a larger number of vacancies than those indicated in para 1 above."
It is not understandable that when above said additional two vacancies became available for the domicile of AJ&K why Miss Asma Roohi Shah was not adjusted against those seats. There is no dispute with regard to total number of seats to be filled-in in the year 2002-2003 by the appellants FPSC as would appear from the Press Note, dated 30.10.2003 at page 39 of the Paper Book but instead of at least two seats of AJ&K, it has been reduced to one seat for which we do not find any justification to deprive the respondent because they themselves had given away seat to Miss Asma Roohi Shah and kept quiet for so many years not to adjust the seat from the year 1994 till 2001 but attempted to adjust it in the year 2002 which clearly proved mala-fide on the part of the appellants. It may also be observed that learned Chairman of the FPSC in his own hand on 29.11.2005 in para 141 of the summary observed:
"141. We are bound under the law, until the judgment of the High Court is in the field, to comply with the Court directions. However the revision of allocation affects all the successful candidates below the candidate in whose favour the judgment has been given. On perusal of the reallocation it appears that out of 5 candidates below Mr. Hassan Kamran Bashir, the service group of two is being affected i.e. Merit No. 269 who gets of OMG in place of ITG and Merit No. 293 who gets I.G. in place OMG. Ordinarily the Court should have asked the petitioner to implead the previous affected/likely to be affected by the adjudication and decision of petition, because by the initial allocation and acceptance thereof those candidates are deemed to have acquired vested right to such allocation. One way out would be for the Government to create a new post of ITG to avoid dislocation of other candidates. The Estt. Div. May be informed about this position for action at their level.
In the light of above orders of the then Chairman FPSC a letter dated 22.11.2005 was issued to the appellant Establishment Division wherein request was made to the Government to create one post of Income Tax Group for Hasan Kamran Bashir to avoid allocation referred above. It may be noted that the said Hasan Kamran Bashir was also a candidate on the basis of competitive examination 1994 in which Miss Asma Roohi Shah had appeared. Letter dated 22nd August, 1996 issued by the appellant Establishment Division No. 1/9/95-T.V (Pt.IV) addressed to Central Board of Revenue, indicated that the appellants themselves had passed an order allowing Miss Asma Roohi Shah to continue her training to the group which she was initially allocated i.e. ITG, till the final orders of the Lahore High Court. There is no direction from the High Court to adjust either Miss Asma Roohi Shah or Hasan Kamran Bashir in any future vacancy but it was the Establishment Division who on its own desired to adjust their seats in future but not specifiying that the same were to be adjusted in the year from the seats of Competitive Examination 2002-2003. Learned Single Judge of the Lahore High Court in the said respect in para-5 of the impugned judgment has observed:
"5. As regards the plea of respondent's side that FPSC has exercised the power of reducing the seats of AJ&K under Rule 11 of the Competitive Examination Rules 2002. Suffice it to say that this rule does empower the FPSC to increase or decrease the total number of seats. But it does not in any manner authorizes it to circumvent and reduce the quota, which as per Serial No. 28 of the ESTA Code, has been allocated to a particular category. Therefore, the issuance of the impugned notification is outside the scope of Rule 11 mentioned above."
This Court in the case of Mossa Wazir (supra) in para 11 at page 1132 has observed:
"11. The practice of keeping a waiting list in a competitive examination system is actually introducing a contradictory concept. The waiting list is maintained in a qualifying examination while in a competitive examination all vacancies are filled up in one go. Even if the filling up is staggered the competitive examination is one and has to be treated as one selection for the purpose of recruitment and it cannot be divided into subsequent selection and prior selection the competitive examination remaining one and the same. Besides, the system which has prevailed in the Province is highly manipulative and unfair. Observation of the High Court on merits reproduced above shows that it came to the conclusion that the practice of the Commission was unfair, created apprehension in the minds of the candidates, was manipulative in the hands of those dealing with the candidates and was the cause of heart burning in the persons affected and working in the Government service. The practice in the matter of recruitment, promotion etc. has always to be such so as to foster competence, discipline and efficiency in public service. Not only these objects should be advanced but they must appear manifestly to be advanced. If the system is arbitrary, capricious, unfair, leads to abiding heart burning and litigation then it is derogatory of the laudable objects for which the public service is required to be established."
So far the plea with regard to non-maintaibility of writ petition before the High Court, it may be observed that the said plea was not agitated, pleaded, or argued before the High Court, therefore the said plea cannot be agitated before this Court. Reference may be made to decision of this Court (i) Sub. (Retd.) Muhammad Ashraf v. District Collector, Jhelum & others (PLD 2002 SC 706 at 710, 711), (ii) Juma Khan & others v. Mst. Bibi Zenaba and others (PLD 2002 SC 823 at page 830), and (iii) United Bank Ltd. v. Pakistan Industrial Credit & Investment Corporation Ltd. & another (PLD 2002 SC 1100 at page 1110).
In view of aforesaid reasoning and material on record action of reducing the seat by the appellants was a malafide act not warranted by law and provisions of the Constitution considering that the respondent's right as a citizen of this country cannot be taken away on the frivolous grounds of having adjusted the seat in the year 1994 of the year 2002 on the basis of plus/minus fraction principles, when no statement of allocation for the said region for the year 1994-95 is filed by the appellants showing that minus/plus ratio was more than half to treat it as a whole entity thereby to take away whole seat falling to the lot of AJ&K region so as to deduct it ensuring year that also after six years. We find no merit in the contentions of learned counsel for the appellants as such find no factual or legal infirmity with the impugned judgment hence required no interference by this Court in the Constitutional jurisdiction, considering also that no substantial question of law is involved, hence no merit in this appeal, consequently this appeal is dismissed with costs.
(A.A) Appeal dismissed.
PLJ 2006 SC 748 [Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ.
ATTA RABANI, EX-HEAD MASTER, GOVT. HIGH SCHOOL BHALL--Appellant
versus
SECRETARY EDUCATION GOVERNMENT OF THE PUNJAB, LAHORE & 3 others--Respondents
Civil Appeal No. 272 of 2005, decided on 22.11.2005.
(On appeal from the Punjab Service Tribunal, dated 31.12.2002 passed in Appeal No. 1688/2002).
(i) Punjab Civil Servants Act, 1974 (VIII of 1974)--
----S. 12(i)--Retirement in public interest--Held : Expression "public interest" implies a matter relating to the people at large, nation or a community as a whole and if the interest of general public or community is not involved in the matter, it cannot be brought within the purview of public interest--An action taken or order passed by competent authority must have reasonable nexus with the public interest. [P. 752] A
(ii) Punjab Civil Servants Act, 1974 (VIII of 1974)--
----S. 12(i)--Retirement in public interest--Held: Retirement u/S. 12(i) was not a punishment and the order under such provision was not ordinarily interfered with but the use of such power without satisfying the requirement of public interest was not proper to deprive a person from his legitimate right of service as source of earning--Allegation regarding embezzlement of Govt. funds stood negated by the report of inquiry committee and similarly the opinion of the competent authority that the appellant had outlived his utility and his further retention in service was not be in public interest, was not based on any material or sound reasons--Order of retirement set aside. [P. 753] B
Mr. Shaukat Aziz Siddiqui, ASC for Appellant.
Syed Sajjad Hussain Shah, A.A.G. for Respondents.
Date of hearing : 22.11.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court has been directed against the judgment dated 31.12.2002 passed by Punjab Service Tribunal, Lahore, whereby the appeal filed by the present appellant against his retirement under Section 12(i) of Punjab Civil Servants Act, 1974, was dismissed.
The learned counsel for the petitioner contended that:--
(i) The order of the pre-mature retirement of the petitioner from the service under Section 12(i) of the Punjab Civil Servant Act could not be passed by way of a penalty for which disciplinary proceedings were required to be taken;
(ii) The petitioner had since been exonerated of the allegations forming subject matter of proceedings on the basis of which he was compulsorily retired from the service as was evident from a letter dated 31.1.2004 of the Executive District Officer (Education) Rawalpindi.
We grant leave to appeal to consider inter alia the above points. This appeal involving short points be set down for filed hearing within a period of six months."
The appellant was served with a show cause notice, issued under Section 12(i) of Punjab Civil Servants Act, 1974 on 17.5.2001 to the following effect:--
"Whereas your performance and service record while serving on different positions in the Government of the Punjab has been reviewed and whereas, the Secretary Education, as the competent Authority in your case, has come to the conclusion that you appear to have outlive your utility and your further retention in the Government of the Punjab, is not in public interest. It is accordingly proposed to retire you from service under Section 12(i) of the Punjab Civil Servants Act, 1974, on the following grounds:--
"As per audit/inspection report you embezzled an amount of Rs. 93,519/- of GHS Jhatha Hathial (Rawalpindi) while working as Incharge Headmaster of the said school."
Now, therefore, you are directed to show cause vis-a-vis above grounds for retirement, within seven days of the receipt of this communication, to the undersigned, as to why you should not be retired from Government Service, under Section 12(i) of the Punjab Civil Servants Act, 1974, in public interest.
In case you fail to submit your reply within the stipulated period, if would be presumed that you have nothing to offer in your defence and you have accepted the grounds of your retirement from service indicated at Para I above and the decision will be taken ex-parte"
In reply to the show cause notice the appellant denying the allegations, pleaded that he had a clean service record and there was nothing adverse against him to attract the provisions of Section 12(i) of Punjab Civil Servants Act, 1974. However, the competent authority, having examined the service record observed that appellant while posted as Headmaster in High School, Jatha Haithial, Rawalpindi, was found involved in embezzlement of Government funds and reviewing his performance, formed an opinion that his further retention in the Government service was not in public interest therefore, directed his retirement. The appeal filed by the appellant against the order of his retirement was dismissed by the Tribunal with the observation that the retirement in the public interest under the provisions of Section 12 (i) of the ibid Act was not questionable.
Learned counsel for the appellant has contended that the retirement of the appellant under Section 12(i) of Punjab Civil Servants Act, 1974 on the ground which could be made basis for departmental proceedings under the Punjab Civil Servants (E & D) Rules, 1975, was not proper and legal. The learned counsel submitted that the Special Secretary (Schools), Education Department, Government of Punjab, in the review application filed by the appellant, directed to the District Education Officer (SE), Rawalpindi, for constitution of an inquiry committee and in pursuance thereof, a two member committee consisting of officer Incharge of District Education Officer, Rawalpindi, and Senior Head Master was constituted and this Committee having checked the record of the school as well as the concerned Bank, submitted its report that the alleged embezzlement of Government funds was withdrawn from the bank by another Head Master, namely, Malik Muhammad Aslam (since died) and appellant was not responsible for the embezzlement of the funds in question. This committee also reported that appellant was an honest and efficient officer and in the light of report of inquiry committee, the District Education Officer, Rawalpindi made the following recommendations:--
"It is submitted that District Education Officer (SE) Rawalpindi was asked vide this office Memo. 5087/Admn dated 16.8.2003 to furnish a detailed report with specific recommendation. He constituted a enquiry Committee comprising on following Officers.
(a) Dr. Bashir Ahmed Malik
District Education Officer (M-EE) R'Pindi.
(b) Mr. Fazal-ur-Rehman Officer Incharge
(B&A) O/C the Distt: Edu: Officer (W-EE) Rawalpindi.
The enquiry Committee has furnished his report, vide his No. 4852-53 dated 10.11.2003 which is self Explanatory.
As per enquiry report, it is revealed that:--
(i) The Major focus of attention of the enquiry Committee has given to the Show Cause Notice, issued Vide No. 80 (E&D-I) S-227/2000 dated 17.7.2001.
(ii) Mr. Atta Rabbani did not embezzle the amount of Rs. 93519/- of F.T. fund of Government High School, Jhatta Hathial (RWP).
(iii) United Bank Ltd, Dhudian Branch (1720)'s Manager has given in writing that Mr. Atta Rabbani did not sign any cheque for drawal of F.T., Fund during the period 1.1.97 to 31.12.1999. The Bank Manager has further clarified that Malik Muhammad Aslam Headmaster, signed the cheques of F.T. Fund.
(iv) The tenure of DDO Ships of each Headmaster for the period 1-1-97 to 31.12.99 is as under:--
Sr.No. Name with Address Period
Mr. Bashir Ahmed HM GHS Bhal (DDO) 1-11-96 to 28-2-97
Mirza Riaz Ahmed HM GHS Jhathial 1-3-97 to 25-6-97
Mirza Riaz Ahmed HM G. Moeen-ul-Islam Rawalpindi. 29-6-97 to 28-12-97
Malik Muhammad Aslam HM GHS, Jhatta Hathial 1-1-98 to 30-4-98
Ch. Atta Rabbani SST/I/C HM GHS, Jhatta Hathial (DDO). 1-5-98 to 3-10-98
Mr. Muhammad Jamil SST I/C HM GHS, Jhatta Hathial (DDO). 4-11-98 to 3-4-99
Ch. Atta Rabbani SST/I/C HM GHS, Jhatta Hathial (DDO) 1-4-99 to 17-5-99
Mr. Muhammad Hamid Hashmi UM GHS, Jhatta Hathial 15-5-99 to 6-4-2000
The photo copies of the cheques and statement of the concerned Bank Manager shows that the Amount of F.T.F. said to have been embezzled by Mr. Atta Rabbani was drawn by Malik Muhammad Aslam the then Headmaster Government H/S Jhatta Hathial Distt. Rawalpindi now died. He utilized this amount properly. Mr. Atta Rubbani did not embezzle the amount of Rs. 93519/- of F.T. fund of Government. H/S, Jhatta Hathial.
It is therefore recommended that case of Mr. Atta Rabbani may please be reviewed according to rules. The enquiry report containing 26 pages alongwith letter of Distt. Education Officer (SE) Rawalpindi is enclosed herewith."
The learned Assistant Advocate General in the light of the report of inquiry committee, has not been able to justify the retirement of the appellant on the grounds mentioned in the show cause notice or could convince us that in the given facts an order passed by the competent authority was in the public interest.
The expression "public interest" implies a matter relating to the people at large, nation or a community as a whole and if the interest of general public or community is not involved in a matter, it cannot be brought within the purview of "public interest". The object of provisions of Section 12(i) of Punjab Civil Servants Act, 1974 is based on subjective consideration and requirement of "Public Interest" may vary from case to case, therefore, an action taken or an order passed by the competent authority must have reasonable nexus with the "public interest". However, ordinarily the Tribunal or Court is not supposed to substitute reasons for public interest and interference in the matter but this rule is subject to certain exceptions and in the service cases, the exception is that assessment of the performance of a person to judge his suitability, must not be based on the personal reason or the consideration not related to the public interest.
The allegation regarding embezzlement of Government funds by the appellant stood negated by the report of inquiry committee and similarly, the opinion of the competent authority that appellant had outlived his utility and his further retention in service was not in public interest was not based on any material or sound reasons. The retirement under Section 12 (i) of Punjab Civil Servants Act, 1974, is not a punishment and the order under this provision is not ordinarily interfered but the use of this power without satisfying the requirement of public interest is not proper to deprive a person from his legitimate right of service as source of earning. The learned Assistant Advocate General has not been able to satisfy us that the report of the inquiry committee or the recommendation of District Education Officer, Rawalpindi, were against the record or order passed by the competent authority under Section 12(i) of the Punjab Civil Servants Act, 1974 was in public interest.
In the light of the foregoing reasons and the circumstances of the case, we set aside the judgment of Tribunal as well as the order of retirement passed by the competent authority and direct the reinstatement of the appellant in service with the observation that departmental authority may, for the misconduct of the appellant, if any, proceed against him strictly in accordance with law. This appeal is allowed with no order as to costs.
(Javed Rasool) Appeal allowed.
PLJ 2006 SC 753 [Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi and Mian Shakir ullah Jan, JJ.
GOVERNMENT OF PAKISTAN through SECRETARY M/O FINANCE and others--Appellants
versus
ASIF ALI and others--Respondents
Civil Appeal Nos. 1781 & 1782 of 2001, decided on 11.10.2005.
(On appeal from the judgment dated 28.4.2001 passed by the Federal Service Tribunal in Appeal No. 908(L)/1997, in both cases)
(i) Government Servants (Efficiency & Discipline) Rules, 1973--
----R. 2(a)--Prevention of Corruption Act, (II of 1947), S. 5--Government Servants (Conduct) Rules, 1964--Constitution of Pakistan, 1973, Art. 212(3)--Criminal misconduct--Difference between the two terms--Held: Misconduct under Government Servants (E&D) Rules 1973 means conduct prejudiced to good order of service discipline or of unbecoming of an officer and contrary to Government Servants (Conduct) Rules 1964, whereas the charge of criminal misconduct is based on the element of mens rea and criminal intent--In a case of criminal charge, the Courts, in light of strict observance of law of evidence have to judge the admissibility of the evidence whereas in case of misconduct, departmental authorities are not required to follow the technicalities of law. [P. 758] A
(ii) Constitution of Pakistan, 1973--
----Art. 212(3)--Government Servants (Efficiency & Discipline) Rules, 1973, R. 2(a)--Charge of misconduct--Dismissal from service--Reinstatement ordered by F.S.T.--Held: Charge of misconduct was based on the allegation of corruption & misuse of office for personal gain and in support thereof direct evidence was available on record but Tribunal, for mis-conception of law and without considering the evidence proceeded to set aside order of removal on the basis of judgment of criminal Court--Impugned judgment set aside and respondent removed from service.
[P. 758] B
Raja Muhammad Irshad, DAG Ch. Akhtar Ali, AOR for Appellants.
Nemo for Respondent.
Appellant in person (in C.A. No. 1782/2001).
Raja Muhammad Irshad, D.A.G and Ch. Akhtar Ali, AOR for Respondents (in C.A. No. 1782/2001).
Date of hearing : 11.10.2005.
Order
Muhammad Nawaz Abbasi, J.--These two connected appeals by leave of the Court, have been directed against the judgment dated 28.4.2001, passed by the Federal Service Tribunal, Islamabad, whereby the appeal filed by Asif Ali, respondent, hereinafter called the respondent, against the order dated 22.3.1998, of his dismissal from service passed by the competent authority was allowed and he was directed to be reinstated in service without back benefits. The Government of Pakistan through Secretary Ministry of Finance and others, hereinafter called the appellants, have assailed the judgment of the Tribunal before this Court in CA No. 1781/01 whereas Arif Ali, respondent filed a cross appeal (CA. No. 1782/01) for grant of back benefits and these appeals involving common questions of law and facts are proposed to be disposed of through this single judgment. The respondent, despite service has not turned up, therefore, he is proceeded against ex-parte. The leave in these appeals, was granted vide order dated 24.7.2001 as under:--
"7. The contentions, inter-alia, require consideration, therefore, leave is granted in Civil Petition No. 2276-L of 2001 to reconsider the case in its entirety in order to ascertain whether findings of the Tribunal reversing the findings of the departmental authority were based on evidence on the record or have been based on conjectures or surmises.
Since leave has been granted in Civil Petition No. 2276-L/2001, therefore, leave is also granted in Civil Petition No. 3222-L/2001 of Asif Ali to consider that if order of his reinstatement in service is upheld, he could be declined in law the arrears of pay during the period he remained out of service in the facts and circumstances of the case."
The respondent was charged in the following manner:--
While posted as Officer Incharge at National Savings Center. Chunian and Pothook during the period from 4.9.1992 to 7.4.1993 and from 8.4.1993 to 8.9.1994 respectively. You committed criminal Financial procedural irregularities as per details given against I (A to C) in the enclosed statement of allegations.
2(a) You misappropriated Rs. 4.92.208.26 in various accounts while posted at National Savings Centre. Chunian.
(b) You while posted at NSC, Pattoki defrauded Mr. Bashir Ahmed s/o Muhammad Ismail, Mst. Shamim Bashir and Mst. Razia for Rs. 4,15,000/- (51500)- + 20,000/- 80,000/- respectively.
You exercised contributory collaboration/connivance in the execution of parallel/private bank by Mr. Manzoor Ahmed Farooq DNSO at NSC. Chunian due to which Rs. 5,61,007.79, have been misappropriated.
You filed incorrect false declarations of assets held by you your wife during the years 1990, 1991, 1992 and 1993.
You unauthorisedly entered you name in the attendance register of Schemes Section of RDNS, Lahore on 12.1.1995 and marked your attendance right from 12.9.1992 to 12.1.1995 at a stretch inspite of the fact that you were never posted in the said Section.
You intentionally avoided failed to comply with the directions of the competent authority regarding second medical opinion with reference to RDBS. Lahore's reminder dated 30.11.1994.
You made payment of Rs. 1,00,000/- against DSC Registration No. 2435 on 23.8.1994 at NSC. Pattoki, without signatures of the purchaser.
You delayed the deposit of Rs. 2,00,000/- from NSC Pattoki to National Savings. Treasury from 20.7.1993 to 10/94 and thus the amount of Rs. 2,00,000/- remained out of Government books for more than one year.
You are unauthorisedly absent w.e.f. 15.1.1995."
The three members Inquiry Committee appointed by the authorized officer under Rule 5(1)(ii) of the Government Servants (Efficiency & Discipline) Rules, 1973, having made a detail scrutiny of the matter, found the respondent guilty of the charges and the competent authority in the light of report of inquiry committee and recommendations of the authorized officer, passed the order of his dismissal from service. In addition to the departmental proceedings for the charge of misconduct, the respondent was also proceeded against for criminal charge of misappropriation of the Government money in which he was subsequently acquitted under Section 265-K, Cr.P.C. by the Special Judge (Central). The Tribunal on the basis of acquittal of the respondent from criminal charge, having allowed his appeal set aside the order of his dismissal and directed his reinstatement in service.
The learned Deputy Attorney General has contended that the acquittal of the appellant in the criminal case on the basis of his exoneration from the criminal liability by the investigating officer, could not be a valid reason to hold that the conduct of respondent as an employee of a final institution, was not prejudicial to the service discipline and good order or it would not be considered adverse to the business interest of the institution to be treated an act falling within the definition of misconduct in terms of Section 2(a) of the Government Service (E&D) Rules 1973. The learned DAG added that apart from financial irregularities and misappropriation, of certain amounts the appellant by using the source of business of the Organization, was also running a parallel financial institution in the private sector for his personal benefit and gain in violation of Government Servants (Conduct) Rules, 1964 and having caused heavy financial loss to the Government Organization has committed gross misconduct.
The expression misconduct and criminal misconduct have different connotations and in the light of definition of misconduct under Government Servants (Efficiency & Discipline) Rules, 1973 it is not necessary that misconduct must carry the element of criminal liability but criminal misconduct essentially constitutes misconduct. The expression misconduct in the Government Servant (E&D) Rules, 1973 has been defined as under:--
"misconduct" means conduct prejudicial to good order of service discipline or contrary to the Government Servants (Conduct) Rules, 1966 or unbecoming of an officer and a gentleman and includes any act on the part of a Government servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Governor or any Government officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of a Government servant".
The "criminal misconduct" is defined in Section 5 of the Prevention of Corruption Act, 1947 as follows:--
"5. Criminal misconduct.--(1) A public servant is said to commit the offence of criminal misconduct--
(a) if he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Section 161 of the Pakistan Penal Code, or.
(b) if he accepts or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business, transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any person to do so, or
(d) if he, by corrupt or illegal means, or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
(e) For Central Government employees only.--If he, or any of his dependents, is in possession, for which the public servant cannot reasonably account of pecuniary resources or of property disproportionate to his known sources of income."
The prosecution before a regular Court for the charge of criminal misconduct, and the departmental proceedings for the charge of misconduct being governed by different laws and the rules of procedure, are entirely different. In the present case, in addition to the departmental proceedings under Government Servants (E&D) Rules, 1973, the criminal law was also set at motion against the respondent for the charge of criminal misconduct and in view of the settled law that acquittal from criminal charge may not defeat the departmental punishment, the acquittal of respondent by the criminal Court either on technical ground or on merits would not ipso facto extinguish the charge of misconduct against him in the departmental proceedings. The standard of evidence and the method of proving the charge of misconduct and a criminal charge before a regular Court is not the same therefore, the acquittal of a person from the charge of criminal misconduct by a criminal Court may be a relevant factor to ascertain the nature of misconduct in the departmental proceedings but may not be as such a reason to exonerate him from the charge of misconduct under Government Servants (E&D) Rules 1973.
The misconduct under Government Servants (E&D) Rule 1973, means conduct prejudicial to the good order of service discipline or of unbecoming of an officer and a gentleman and contrary to Government Servants (Conduct) Rules 1964 whereas the charge of criminal misconduct is based on the element of mens rea and criminal intent. The criminal Courts in the light of strict observance of law of evidence, have to judge the admissibility of the evidence to hold a person guilty of the criminal charge, but in case of the charge of misconduct, the departmental authorities are not required to follow the technicalities of law. In the present case, the inquiry officer as well as authorized officer having considered the evidence brought on record, have held the respondent guilty of charge and consequently, his acquittal from the criminal charge for want of insufficient evidence would not be a valid ground to hold that he was also not guilty of the charge of misconduct under Government Servants (Efficiency & Discipline) Rules, 1973. This is settled proposition of law that departmental proceedings for the misconduct and criminal prosecution in the same transaction can proceed simultaneously but the acquittal in the criminal case may not necessarily effect the result in the departmental proceedings and perusal of the record would show that the Tribunal without creating distinction between the criminal misconduct and misconduct and the nature of proceedings before the different forums, decided the appeal before it merely on the basis of judgment of the criminal Court. It may be pointed out that unless the essential elements and component of a criminal offence are proved through the evidence, direct or circumstantial, the conviction is not possible whereas, in case of misconduct, the departmental authorities may not follow the complicated procedure of criminal Courts and the rule of appraisal of evidence rather such authorities in the light of general principles of law may determine the question of guilt or innocence of a person by giving him a fair and adequate opportunity of hearing in accordance with law.
The examination of the record would show that the charge of misconduct against the respondent was based on the allegation of corruption and misuse of office for personal gain and in support thereof direct evidence was brought on record but the Tribunal for misconception of law, without taking into consideration the said evidence, proceeded to set aside the order passed by the competent authority on the basis of judgment of criminal Court.
In the light of foregoing reasons, the impugned judgment is set aside and Civil Appeal No. 1781 of 2001 is allowed, whereas Civil Appeal No. 1782/2001 is dismissed. There will be no order as to costs.
(Javed Rasool) Order accordingly.
PLJ 2006 SC 759 [Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ.
DAUD SHAH, SENIOR BUDGET & ACCOUNTS OFFICER, PESHAWAR ELECTRIC COMPANY (LTD.), PESHAWAR and another--Appellants
versus
PAKISTAN WATER & POWER DEVELOPMENT AUTHORITY etc.--Respondents
Civil Appeal Nos. 1387 & 1388 of 2004, decided on 10.11.2005.
(On appeal from the judgment of the Federal Service Tribunal, Islamabad dated 3.10.2002 passed Appeal Nos. 51 & 52(P)CE/2001)
Constitution of Pakistan, 1973--
----Art. 212(3)--Pakistan WAPDA Employees (E&D) Rules, 1978--Punishment of two steps reduction in time scale for two years with recovery of specified amount--In appeal, order upheld by Federal Service Tribunal--Held: Appellants were directly responsible for causing the loss to the exchequer but as they were found careless in the matter of payment of wages so they were rightly held negligent and so the penalty of reduction in time scale was justified however burdening them with recovery of loss was declared to be not proper--Appeals partly allowed.
[P. 761] A
Raja Muhammad Asghar Khan, ASC with Mr. Muhammad Ahmad Zaidi, AOR for Appellants (in both appeals).
Mr. Muhammad Munir Peracha, ASC with Ch. Muhammad Akram, AOR for Respondents (in both appeals).
Date of hearing : 10.11.2005.
Judgment
Muhammad Nawaz Abbasi, J.--These appeals by leave of the Court have been directed against the judgment dated 3.10.2002 passed by the Federal Service Tribunal, Islamabad, whereby the appeals of the appellants before the Tribunal against the departmental punishment of two steps reduction in time scale for a period of two years with recovery of Rs. 78165/- and Rs. 171, 127/- respectively awarded to them, were dismissed. Leave to appeals was granted by this Court vide order dated 27.9.2004 as under:--
"The petitioners seek leave to appeal from the common judgment dated 3.12.2002 passed by the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal) in Appeal Nos. 51 (P)/CS/2001 and 52(P)/CS/2001.
The petitioners are officers of WAPDA. They were proceeded against on certain charges under the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 (hereinafter referred to as the Efficiency and Discipline Rules). The issued show-cause notices dated 25.9.2000 and 11.9.2000 respectively. They submitted their replies thereto. By separate orders dated 4.12.2000, passed by the Member, Finance, WAPDA, they were awarded major penalty of two steps down in their time scale for a period of two years without accumulative effect coupled with a recovery of Rs. 78165 and Rs. 1,71,127 in lump sum respectively. The petitioners preferred appeals No. 51(P)/CS/2001 and 52 (P)/CS/2001 there against which were dismissed by the Tribunal by the impugned judgment dated 3.10.2002. Hence these petitioners for leave to appeal.
The learned counsel for the petitioners contended, inter alia, that in view of Section 11 of Removal from Service (Special Powers) Ordinance, 2000, promulgated w.e.f. 27.5.2000, the respondents were devoid of any power to take disciplinary proceedings against the petitioners under the Efficiency and Discipline Rules. It was further submitted that the facts and circumstances of the case called for holding of regular inquiry into the charges against the petitioners. Therefore, the recourse to the procedure of Efficiency and Discipline Rules, adopted by the respondents was wholly unwarranted. Reference was made to the judgment of this Court in the case of Pakistan International Airlines Corporation through Managing Director PIAC, Head Office, Karachi Airport, Karachi versus Ms. Shaista Naheed, 2004 PLC (C.S) 344. The learned counsel also brought to our notice that leave to appeal had already been granted in a similar case of WAPDA versus Muhammad Sharif (C.P. No. 1991/2002).
On the other hand the learned counsel for the respondents controverted the position taken by the petitioners.
After hearing the learned counsel for the parties at some length, leave to appeal is granted to consider the above contentions of the learned counsel for the petitioners".
Learned counsel for the appellants contended that in view of the provision of Section 11 of Removal from Service (Special Powers) Ordinance, 2000, (hereinafter called "the Ordinance") promulgated on 27.5.2000, the proceedings under the WAPDA Employees (Efficiency and Discipline) Rules, 1978 were not legal and that this Court in a similar case (C.P. No. 220-K of 2005, Azizullah Memon vs. Province of Sindh and another) held as under:--
"In the presence of express and specific language employed in the Ordinance neither the departmental authorities nor the Tribunal bothered to notice that after the date of promulgation of the Ordinance all disciplinary proceedings should have been initiated under the Ordinance rather than the old Rules enforced in 1973. This Court has already ruled in a number of judgments that this Ordinance has the over-riding effect over all other laws on the subject except in case of proceedings, which were already pending before promulgation of the Ordinance. Since the impugned action was initiated and taken to its logical conclusion under a misconception of law and under a wrong law, it has vitiated the entire proceedings including the final order, which cannot be sustained under the law. The proceedings as well as final order is therefore, liable to be set aside."
Learned counsel for the respondents on the other hand has contended that there was no material difference in parallel provisions in the Ordinance, and the rules therefore, no prejudice was caused to the appellants and the defect in the departmental proceedings pointed out, being of technical nature, would have of no consequence to declare the order illegal or coram non judice. The legal position regarding the validity of the proceedings under any other law after the enforcement of the ibid Ordinance has been settled by this Court in the judgment referred above I.G.H.Q. Frontier Corps vs. Ghulam Hussain (2004 SCMR 1397). Be that as it may, the learned counsel for the parties in the present case have jointly requested for decision of these petitions on merits.
We having heard the learned counsel, have found that nothing was brought on record to show that who was legally responsible to maintain the record of Labour working at the site for payment of their wages or, what was the method of employment of the labour at the site and preparation of vouchers for payments to ascertain the correct factual position and fix the responsibility of the appellants in performance of their duty. The learned counsel for the appellants has not been able to show us that either the amount in respect of wages of labour was sanctioned beyond the sanctioned strength or the appellants were required to pass the bills for payment after physical verification of the labour, at the site or that due to their negligence, loss was caused to the Organisation. Certainly, there is no evidence on record to suggest that appellants were directly responsible for causing loss to the exchequer but since they were found careless in the matter of payment of wages, therefore, we could not take any exception to the finding of the Tribunal to the finding to the extent of charge of negligence against them and consequently, are of the view that order relating to the penalty of reduction to two steps in the time scale for a period of two years, was justified but to burden them with the recovery of loss, was not proper. Consequently, we while setting aside the order of departmental authority regarding the recovery of loss of the government from the appellants maintain the judgment of the Tribunal to the extent of penalty of reduction to two steps in the time scale for a period of two years and modify the judgment accordingly. These appeals, in the above terms, are partly allowed with no order has to costs.
(Javed Rasool) Appeals partly allowed.
PLJ 2006 SC 762 [Appellate Jurisdiction]
Present: Javed Iqbal and Hamid Ali Mirza, JJ.
JEEWAN SHAH--Appellant
versus
MUHAMMAD SHAH, etc.--Respondents
Civil Appeal No. 693 of 1999, decided 21.11.2005.
(On appeal from the order dated 11.12.1997 of the Lahore High Court, Multan Bench, passed in C.R. No. 714-D/97, 9-CM 1/2-97).
(i) Civil Procedure Code, 1908 (V of 1908)--
----O.II, R. 2--Provisions--Legality--Provisions as contained in O. II, R.2 C.P.C. cannot be made applicable without having gone through entire evidence and peculiar circumstances of the case which was never done--Question of--Whether provisions as contained in O.XXXII CPC could have been ignored--Held: Matter of impugned order by High Court as well as First Appellate Court are hereby set aside and second civil suit would be treated as pending to be disposed of in accordance with law on merits after recording evidence and affording opportunity of hearing to all concerned without influenced from any observation. [P. 766] D
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O.XXIII, R. I & O.VII, R. 11--Pendency of second suit--Cause of action--Parties in both suits were different because in earlier suit petitioner and respondent of the second suit were plaintiffs while in second suit petitioner was plaintiff and others were defendants--Cause of action appears to be different as in earlier suit the genuineness and authenticity of documents which remained in question were challenged on basis of coercion wrongful confinement and threats to life of petitioner whereas in second suit documents were challenged on basis of insanity. [P. 766] C
(iii) Duty of Court--
----Lunatic person--Question of insanity--Determination--In civil suit the question of insanity cannot be determined without recording evidence by affording proper opportunity of hearing to the party concerned to substantiate the factum of insanity by leading evidence--Court is duty bound to protect the interest of lunatic person. [P. 766] B
(iv) Unsound Mind--
----Insanity is not mental infirmity--Even if a person is not sufficiently intelligent to manage his affairs, he is not necessarily of unsound mind.
[P. 766] A
Sheikh Khizar Hayat, ASC for Appellant.
Mr. Gulzarin Kiani, ASC and Mr. Arshad Ali Ch., AOR for Respondents.
Date of hearing : 21.11.2005.
Judgment
Javed Iqbal, J.--This appeal with leave of the Court is directed against the order dated 11.12.1997 whereby the revision petition preferred on behalf of appellant has been dismissed and the judgments/decrees passed by learned trial and appellate Courts have been kept intact.
"This petition has been filed against the impugned order dated 11.12.1997 of the High Court dismissing the revision petition filed by the petitioner/plaintiff in limine and thereby confirming the impugned orders of the two Courts below. The trial Court had rejected the plaint of the suit of the plaintiff under Order VII Rule 11 CPC. We have heard Sh. Khizar Hayat, learned counsel for the petitioner and with his assistance, gone through the record.
In this case the property involved is about 318 Kanals 1 marla, which admittedly belonged to petitioner Jeewan Shah and the registered sale-deed in favour of his real brother Muhammad Shah (respondent) was challenged in the earlier first suit filed on 3.6.1989, by the petitioner through his wife his minor son and one Abdur Rehman. It was alleged in the plaint that the petitioner had been in wrongful confinement of his brother and his signature on the sale-deed were obtained by un-due influence and pressure.
(B) The High Court has referred to Article 92 of the First Schedule to the Limitation Act 1908 it filed in 1994 was barred by that in any case the second suit time, the period provided in the said Article for filing a suit for holding a document to have been obtained fraudulently to be 3 years whereas in this case the second suit was filed after 5 years. Learned counsel relies upon Section 6 of the Limitation Act for the proposition that the petitioner was a person of unsound mind and this assertion is corroborated, according to learned counsel, by the pleading of the respondent himself, who even treats and alleges that the petitioner was person of unsound mind.
(C) That in any case this was a question which could not have been decided without some evidence having recorded, and in the circumstances the rejection of the plaint under Order VII Rule 11 C.P.C. was not in accordance with law.
According to us, a case for grant of leave is made out. This petition is, accordingly, allowed. Later on, during the pendency of the first suit, petitioner Jeewan Shah was impleaded as a plaintiff in the suit. During the pendency of the first suit, a second suit was filed on 29.1.1994 by Jeewan Shah through his brother Ghulam Rasool Shah and an additional ground was taken that Jeewan Shah was person of unsound mind and as such even otherwise the sale was not legal and binding on Jeewan Shah.
During the pendency of the two suits, the first suit was withdrawn unconditionally on which an application under Order VII Rule 11 CPC was filed by the respondent Muhammad Shah, which was allowed by the trial Court and the plaint in the second suit was rejected apparently on the provisions of Order 11 Rule 2 CPC and Order XXIII C.P.C. The appeal filed by the petitioner was dismissed by the appellate Court and as observed, the High Court has dismissed the revision petition of the petitioner in limine.
(A) In this case neither Order II Rule 2 nor Order XXIII Rule 1 CPC was attracted inasmuch as both the suits were pending at the time of the first suit was withdrawn. Reliance was placed on a judgment of this Court reported in the case of Ghulam Nabi and others vs. Seth Muhammad Yaqub and others and leave is granted consider the above contention advanced by the learned counsel."
"The Court should have put homely questions keeping in view the feeblemindedness and weak intellect of the person alleged to be a lunatic and should have examined him in Court. He could also have been examined on his dietary habits as well as on other points, how he was treated by others, how much land he had, who cultivated it, whether he could plough his land, whether he had any complaint to make of his sister, brother-in-law and others, whether he had a wife or had a child. In fact, a number of questions which can be put to a child of a few years of age could be put to him. The object of the Act is not fulfilled by a perfunctory examination. He should also have been made to sit with the respondents for some time and to talk to them and then examined again with a view to find out his capacity of understanding and to judge the correctness of the observations of the medical expert."
The factum of unsoundness of mind legally and medically does not convey similar meaning, "from the medical point of view even a feeble-minded person or a borderline mentally deficient is a person of unsound mind. It is a disease which has to be cured clinically or by use of psychiatric methods. But this is not so in law. It is settled that insanity is not mental infirmity but something more. Even if a person is not sufficiently intelligent to manage his own affairs, he is not necessarily of unsound mind." (Mahipati v. Mt. Changuna AIR 1934 Nag. 27, George P.O. Sherman v. Edwin Sherman Schora (1875) 24 W R 124, Joshi Ram Krishan v. Rukmini Bai AIR 1949 All, 449, Mst. Teka Devi v. Gopal Das AIR 1930 Lah. 289 Sonabati Debi v. Narayan AIR 1935 Pat. 423, Jamila Begum v. Awam-un-Nass (PLD 1978 Lahore 1376).
There is no cavil with the proposition that in a civil suit the question of insanity cannot be determined without recording evidence by affording proper opportunity of hearing to the party concerned to substantiate the factum of insanity by leading evidence. The Court is duty bound to protect the interest of a lunatic person.
The point which appears to be more significant is that in view of the pendency of second suit, how Order 23(1) CPC could have been made applicable because undoubtedly second suit was pending adjudication at the relevant time. It has also been observed that the parties in both the suits were different because in the earlier suit Jeewan Shah, Shahida Bibi, Muhammad Qavi and Abdur Rehman Shah were the plaintiffs while Muhammad Shah, Mazhar Hussain Shah and Muzaffar Hussain Shah were shown as defendants while in the second suit Jeewan Shah was the plaintiff and Muhammad Shah and Abdur Rehman Shah were shown as defendants. The cause of action also appears to be different as in the earlier suit the genuineness and authenticity of the documents which remained in question were challenged on the basis of coercion, wrongful confinement and threats to the life of Jeewan Shah whereas in the second suit the above mentioned documents were challenged on the basis of insanity. This aspect of the matter should have been considered prior invoking to the provisions as contained in Order 7 Rule 11 CPC.
No doubt that at later stage the factum of insanity was challenged but how it could have been done by Muhammad Shah as the suit for jactitation of marriage was also filed by Muhammad Shah on behalf of Jeewan Shah on the basis of insanity which was in the knowledge of Muhammad Shah by whom it was exploited on every occasion. As mentioned herein above, the plea of insanity was also raised in a categoric manner by Muhammad Shah before different revenue forums/Civil Courts. We are also of the considered view that the provisions as contained in Order 2 Rule 2 CPC cannot be made applicable without having gone through the entire evidence and peculiar circumstances of the case which was never done. The question as to whether the provisions as contained in Order 32 CPC could have been ignored in this case, also deserves consideration. In such view of the matter the judgment impugned passed by the learned High Court as well as learned District Judge, Multan are hereby set aside and the second civil suit shall be treated as pending to be disposed of in accordance with law on merits after recording the evidence and affording proper opportunity of hearing to all concerned without being influenced from any observation made hereinabove.
(Rafaqat Ali Sohal) Order accordingly.
PLJ 2006 SC 767 [Appellate Jurisdiction]
Present: Rana Bhagwandas, ACJ and Hamid Ali Mirza, J.
MUHAMMAD FAROOQ--Appellant
versus
NAZIR AHMAD & others--Respondents
Civil Appeal No. 988 of 2000, decided on 30.11.2005.
(On appeal from the judgment dated 23.12.1999 in C.R. No. 1998/99 passed by the Lahore High Court, Lahore).
(i) Arbitration Act, 1940 (X of 1940)--
----S. 34--Application for stay of suit for referring dispute to arbitration--Acceptance of application by trial Court--Dismissal of appeal by First Appellate Court--Maintaining order by High Court--Validity--Appellant after receipt of notice of plaint got three clear dates for filing written statement, but application u/S. 34 of Act was moved on fourth date--On all three dates he made such request for postponement for filing written statement which clearly indicated that he had intention to contest suit and not to resort to so called "Iqrar Nama" for arbitration--In terms of agreement none of parties having given any notice or arbitrator not taking any initiative would lead to conclusion that parties had given up to have dispute resolved through Arbitrator--Held: Application for stay of suit was rightly rejected by first appellant Court and affirmed by Single Judge--Appeal dismissed. [Pp. 769, 770, 771 & 772] A, B, D, E & F
(ii) Arbitration Act, 1940 (X of 1940)--
----S. 34--Constitution of Pakistan, 1973, Art. 185(3)--Request for adjournment--Stay of suit--Application for--Seeking adjournments for filing written statement--Whether amounts to "taking any other steps in proceeding "enshrined in S. 34 of said Act--Question of--Frequent requests for adjournments for filing written statement would fall within purview/ambit of phrase "taking any other steps in proceedings" within meaning of S. 34 of Act. [P. 770] C
Appellant in person.
Respondent No. 1 in person.
Respondents Nos. 2 & 4 Ex-parte.
Respondent No. 3 proforma .
Date of hearing: 30.11.2005.
Judgment
Hamid Ali Mirza, J.--This civil appeal with leave to this Court, dated 18 July, 2000 is directed against the order dated 23.12.1989 in Civil Revision No. 1998 of 1999 passed by learned Single Judge of the Lahore High Court, Lahore, whereby the said civil revision was dismissed in limine thereby order dated 17.11.1999 passed by learned Additional District Judge, Faisalabad was maintained and learned Civil Judge was directed to proceed with the suit in accordance with law.
Brief facts of the case are that respondent Nazir Ahmad filed suit for partition and rendition of accounts. Suit was registered and notices were issued to the appellant/defendant. Appellant appeared and made an application under Section 34 of the Arbitration Act for stay of proceedings which was resisted by the respondent/plaintiff. The trial Court after hearing arguments accepted the application made under Section 34 of the Arbitration Act, 1940, vide order dated 8.12.1998 which order was assailed by the respondent/plaintiff in appeal and was heard by learned Additional District Judge, Faisalabad who allowed the appeal vide judgment dated 17.11.1999 consequently application under Section 34 of the Arbitration Act was dismissed. The appellant/defendant preferred Civil Revision No. 1998 of 1999 before the Lahore High Court, Lahore which civil revision was dismissed in limine maintaining the order of learned Additional District Judge.
We have heard the parties in person and perused the impugned judgments and he record minutely.
Leave was granted by this Court to consider the true import and significance of the words "taking any other steps in the proceedings" in Section 34 of the Arbitration Act and to find out whether the alleged acts of the appellant can be classified as "steps in the proceedings" as envisaged by the said section of Arbitration Act. The appellant/defendant has referred to so called Iqrar Nama for Arbitration at page 66 of the Paper Book and submitted that in terms of the said agreement, the respondent/plaintiff was bound to refer the matter for decision to sole Arbitrator Ch. Muhammad Siddique Randhawa, Advocate, consequently in terms of Section 34 of the Arbitration Act, learned Civil Judge could not proceed with the suit in view of the bar contained in the said provision of law.
The appellant in person submitted that learned Single Judge of the High Court and the First Appellate Court have committed material irregularity in rejecting the application filed under Section 34 of the Arbitration Act considering that the respondent/plaintiff had entered the arbitration arrangement to refer the matter to Arbitrator who in the reply impliedly admitted the execution of agreement. He further submitted that the appellant cannot be said to have taken steps in the proceedings of the suit as envisaged under Section 34 of the Arbitration Act by filing adjournment application considering that no written statement was ever filed indeed he moved an application for stay of proceedings of suit as soon as Presiding Officer was found to be in the Court. He has placed reliance upon Pakistan International Airlines Corporation v. M/s Pak Saaf Dry Cleaners (PLD 1981 SC 553).
Respondent/plaintiff submitted that in fact the alleged Iqrar Nama to refer the dispute to Arbitrator is a forged and fabricated document and as such not binding upon him. He submitted that learned Single Judge of the High Court and the First Appellate Court have rightly and in accordance with law decided the matter which requires no interference by this Court.
We do not find any merit and substance in the contentions of the appellant.
The admitted position is that the appellant/defendant for the first time appeared in the Court on 28th of March, 1998 when the same was adjourned to 17.4.1998 for submission of the written statement and filing power of attorney. The written statement was not filed as such suit was adjourned to 30.4.1998 when the learned Presiding Officer was on leave. The suit was accordingly adjourned to 13.5.1998 yet on the said date written statement was not filed. Learned counsel for the appellant/defendant requested for adjournment to file written statement which was allowed and suit was adjourned to 18.5.1998 but as the Presiding Officer was on leave, therefore the suit was again adjourned to 30.5.1998 when application under Section 34 of the Arbitration Act was moved. From the above proceedings in the Court it would be clear that the appellant even after the receipt of notice of the plaint got three clear dates for filing written statement but the application under Section 34 of the Act was moved on the fourth date. Above acts of the appellant on number of dates stated above would show that he intended to participate and defend the suit before the Court. In this process he engaged a counsel and filed adjournment application or requested for adjournment on the above dates. We may also observe that test for determining whether an act is a step in the proceedings or not, this Court in the case of Pakistan International Airlines Corporation v. M/s. Pak Saaf Dry Cleaners (PLD 1981 SC 553) at page 559 in the last para has observed:--
"As would be seen from above, the mere existence of a clause providing for arbitration does not bar a suit or other legal proceeding in Court. It only entitles a party to have the legal proceedings stayed. In order that a stay may be granted under the provisions of this section, certain conditions must be fulfilled. The party must take the objection and apply for stay proceedings before taking any step, for example, the filing of the written statement, that is, before he placed his cards on the table. The provisions of the section, further imply that the Court should, first of all, examine whether the arbitration clause applies to the dispute, and if it does, whether the nature of the dispute is such that the ends of justice will be better met by the decision of the Court than by that of private forum chosen and agreed upon, and to which the parties had made themselves bound to adhere and adopt in case that type of dispute arose between them. The Legislature has, of course, clearly implied in the language used in the section that the arbitration clause should be respected, but has also made it abundantly clear that the party seeking to avail of the provision of stay under this section must clarify his position at the earliest possible opportunity, so as to leave no manner of doubt that he wishes to have resort to arbitration proceeding. If he hesitates in this regard, or allows the suit to proceed in any manner, that conduct would indicate that he has abdicated his claim to have the dispute decided under the arbitration clause, and to have thereby forfeited his right to claim stay of the proceedings in the Court."
In para 3 at page 564 of the above cited decision this Court has observed:--
"In my opinion, the true test for determining whether an act is a step in the proceedings is not so much the question as to whether the party sought an adjournment for filing the written statement although of course that would be a satisfactory test in many cases but whether taking into consideration the contents of the application as well as all the surrounding circumstances that led the party to make the application display an unequivocal intention to proceed with the suit, and to give up the right to have the matter disposed of by arbitration. An application of such nature, therefore, should prima facie be construed as a step in the proceedings within the meaning of Section 34 and the whole burden should be upon the party to establish why effect should not be given to the prima facie meaning of the application."
In the instant case it would appear that the appellant/defendant has been obtaining adjournments on the ground that he intended to file written statement and power of attorney. On all the three dates he made such request for postponement for filing written statement which clearly indicated that he had intention to contest the suit and not to resort to so called Iqrar Nama of arbitration. Frequent requests for adjournment for filing written statement would fall within the purview/ambit of the phrase "taking any other steps in the proceedings" within the meaning of Section 34 of the Arbitration Act.
It may also be observed that on perusal of the so called arbitration agreement which is dated 30.9.1996 no time period is fixed and in terms of para 3 of Schedule 1 to Arbitration Act which reads as follows:--
"3. The arbitrators shall make their award within four months after entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement, or within such extended time as the Court may allow."
This alleged agreement for arbitration being without the intervention of the Court wherein no time period has been fixed within which award is to be made, the arbitrator has to make award within four months from the date of entering on the reference or where the arbitrators are required to act as such by notice, within four months from the date of such notice. In the instant case it is not the case of the respondent/plaintiff that any one of the parties was to give notice to arbitrator named in the so called agreement for entering upon the reference. In terms of the agreement none of the parties having given any notice or Arbitrator not taking any initiative would lead to a conclusion that the parties had given up to have the dispute resolved through the Arbitrator. Arbitrator has also not produced any extension of time having been granted by the Court under Section 28 of the Arbitration Act. This will lead to a conclusion that authority of arbitrator was revoked as such the said agreement for arbitration, if any, having been made stood revoked and came to an end. Indeed it and was not subsisting to place reliance for the purpose of staying the proceedings of the suit. It may further be observed that respondent/plaintiff has denied the execution of agreement for arbitration. In fact nothing has been produced and we do not find any thing on record that there existed any such agreement between the parties considering that only a photo copy has been placed on record and original has withheld from all the Courts below. Provision of Section 34 of the Arbitration Act would indicate that the party has to promptly act raising the plea of referring the matter to the arbitrator at the very first opportunity and delay on any pretext in raising the plea would estop the party from raising the said plea of staying all proceedings. It may be observed that the appellant/defendant made the aforesaid application after about six months of service of summons of the suit and during the said period he went on seeking adjournment twice for filing written statement. He had even contested the application for interim injunction and had also applied for rejection of plaint and thus the appellant/defendant had taken positive steps for furtherance of the proceedings in the suit. Consequently application for stay of suit under the aforesaid provision of law was rightly rejected by the First Appellate Court and affirmed by the learned Single Judge.
We may also observe that the appellant is real brother of the respondent. Both parties were present today with their father when the latter stated before us that he being the father had gifted the property in equal shares to both of his sons whereas the appellant has declined to give the share of his brother, respondent/plaintiff; even latter's share in monthly amount of rent of Rs. 37,000/- which is being received by the appellant only. Learned Single Judge in the impugned order after making reference to (i) New Bengal Shipping Company v. Eric Lancaster Stump (PLD 1952 Dacca 22), (ii) Nuruddin Abdulhusein v. Abu Ahmed Abdul Jalli (AIR (37) 1950 Bombay 127), (iii) Subal Chandra Bhur v. Md. Ibrahim and another (AIR (30) 1943 Calcutta 484), (iv) Badsha Meah Sowdagar v. Nurul Haq & others (PLD 1967 Dacca 250) in para 4 has observed as follows:--
"4. It is clear that the condition precedent is that this application should be moved before filing the written statement or taking any other steps in the proceedings. In the present case as already noted above the written statement was not filed but petitioner was given time to file written statement and on 13.5.1998 specific request was made on his behalf for the grant of time to file the written statement. This clearly amounted to taking steps and acquiescence in the proceedings. If this test is applied then the petitioner has taken steps in the proceedings before filing the applications, therefore, the same was liable to be dismissed. Learned counsel has relied on the judgment in the case of P.I.A. supra. The facts in that case are clearly distinguishable."
(Aliya Sattar Chaudhry) Appeal dismissed.
PLJ 2006 SC 772 [Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ.
SINDH EMPLOYEES SOCIAL SECURITY INSTITUTION, KARACHI--Appellant
versus
M/S PEARL CONTINENTAL HOTEL, CLUB ROAD, KARACHI--Respondent
Civil Appeal No. 420 of 2002, decided on 13.1.2006.
(On appeal from the judgment of Sindh High Court Karachi dated 16.3.2001 passed in Misc. Appeal No. 35 of 1990).
(i) Social Security Ordinance, 1965--
----S. 2(30)--Contractual or statutory obligation for service of employee--Notice of demand social security contribution--Guaranteed payment made to employees--Exemption--Disallowance--Appeal accepted by High Court--Assailed--If employer pays any amount to employee in discharge of his contractual or statutory obligation for service of employee, it will be covered by definition of term "Wages" given in Section 2(30) of Ordinance notwithstanding that parties may provide in settlement that it is not to be treated as part of wages unless under some statutory provision, it can be so provided--Held: Guaranteed payment would be deemed as part of wages--Appeal allowed. [P. 776] B & D
(ii) Social Security Ordinance, 1965--
----S. 2(30)--Notice of demand--Social security contribution--Guaranteed payment--Exemption--Scope--If employer occasionally without being under contractual or statutory obligation, makes ex-gratia payment to his employees for their well being, same will not be covered by definition of term "Wages". [P. 776] C
(iii) Social Security Ordinance, 1965--
----S. 2(30)--Social Security--Contribution--Notice of demand--Guaranteed payment--Where covered under definition of term "Wages" and liable to contribution--Question of--Guaranteed payment was regularly being treated as integral part of settlement between management of P.C., Hotel and workers union since long therefore, such type of payment having been not specifically excluded from purview of S. 2(30) of Ordinance would be deemed to have been treated as part of wages. [P. 775] A
Mr. Khalid Habibullah, ASC for Appellant.
Mr. Muhammad Hamayun, ASC for Respondent.
Date of hearing : 19.10.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court has been directed against the judgment dated 16.3.2001 passed by a learned Judge in Chamber in the High Court of Sindh at Karachi whereby the appeal filed by the respondent herein against the order dated 14.10.99 passed by First Social Security Court No. 1 Karachi, was allowed. The leave was granted in this appeal vide order dated as under:
"Petitioner seeks leave to appeal from the Sindh High Court judgment dated 16.3.2001 in Miscellaneous Appeal No. 35 of 1999 allowing appeal against order dated 14.10.1999 passed by the Social Security Court No. 1, Karachi.
Facts leading to this petition appear to be that petitioner issued a notice dated 8.5.1996 to the respondent management, calling upon it to pay a sum of Rs. 14,30,950/- by way of contribution to the social security amount payable on guaranteed payment made to the employees, which had been detected on periodical checking of the records. Respondent submitted a detailed reply, insisting that the contribution demanded was not payable as guaranteed payment made to the employees did not fall within the definition of expression "wages" as contained in Section 2(30) of the Provincial Employees Social Security Ordinance, 1965 (hereinafter referred as the Ordinance, 1965). As view point of the respondent management, that this payment was in the nature of bonus/ex-gratia and no such demand was raised in the past was not accepted by the petitioner, latter preferred a complaint under Section 57 of the Ordinance, 1965, which was dismissed vide decision dated 5.12.1987. An appeal, in terms of Section 64 of the Ordinance 1965 was, however, accepted through the impugned judgment by a learned Judge in Chambers of the Sindh High Court, leading to this petition.
After hearing learned counsel for the parties and perusing impugned judgment as well as documents on record, we are inclined to grant leave to appeal, inter alia, to examine whether the guaranteed payment made by the respondent management to its employees being uniform and regular in character would not fall within the ambit of expression "wages" in terms of Section 2(30) of the Ordinance 1965? It is ordered accordingly."
The controversy in the present case relates to the liability of the respondent for the payment of Social Security Contribution to the Sindh Employees Social Security Institution, appellant herein, and the point requiring determination is what is the true import of expression `guaranteed payment' and whether guaranteed payment of the employer to the employees, cannot be treated as part of the wages for the purposes of Social Security Ordinance, 1965. The learned Judge in chamber in the High Court of Sindh having discussed the proposition in detail, has given the verdict that guaranteed payment was not part of wages of the employees. The learned counsel for the appellant taking us to the various settlement entered between the employer and employees time by time through C.B.A. submitted that a payment in terms of settlement between the employer and the employees would be considered as an obligation of the employer and in case of failure of employer to make such payment, it would be recoverable as part of the wages under the law. In support of the above contention, the learned counsel has placed reliance on Brook Bond Pakistan Ltd. vs. Sindh Employees' S.S.I (1990 SCMR 175), (National Embroidery Mills Ltd. vs. Punjab Employees' Social Security Institution (1993 SCMR 1201), Consolidated Sugar Mills vs. Sindh Employees Social Security Institution (PLD 1991 SC 862) and (PLD 1978 Karachi 744).
Learned counsel for the respondent, on the other hand, has contended that the expression `guaranteed payment" was used for the first time in the settlement of the employer with CBA in respect of the payment made to the Hotel employees in lieu of the services rendered by them to the customers in addition to their wages and it being voluntary payment, would not be considered part of their wages. Therefore, the employer would have no obligation to make social security contribution on such payments. He argued that wages in terms of Section 2 (30) of Social Security Ordinance, 1965 means remuneration for services rendered by a person which is payable to him in cash or in kind but does not include the payment made in respect of special expenses, gratuity and pension. In nutshell, the contention of the learned counsel was that in the light of definition of wages, the voluntary payment in addition to the legal remuneration, cannot be considered part of the wages and the guaranteed payment is a special payment which is paid as aid and is not a remuneration for services to be treated as part of wages.
It is appropriate to examine the proposition in the light of relevant provisions of law. The term `wages' has been defined in Section 2 (30) of Social Security Ordinance, 1965 as under:--
"30 Wages" means remuneration for service paid or payable in cash or in kind to a secured person, not being less than remuneration based on the minimum rates of wages declared under the Minimum Wages Ordinance, 1961 (XXXIX of 1961), without taking account of deductions for any purpose, under a contract of service or apprenticeship, expressed or implied, and shall be deemed to include any dearness allowance or other addition in respect of the cost of living and any payment by the employer to a secured person in respect of any period of authorized leave, illegal lockout or legal strike; but does not include:--
(a) any payment for overtime; or
(b) any sum paid to the person employed to defray special expenses entailed by the nature of his employment; or
(c) any gratuity payable on discharge; or
(d) any sum paid as bonus by the employer;"
The above definition of `wages' obviously includes remuneration for service paid and payable in cash or in any other kind except the payments mentioned in clauses (a) to (d) of Section 30 ibid.
The expression `guaranteed payment' means making of a payment as an obligation under an instrument.
This is an admitted fact that the guaranteed payment was regularly being treated as an integral part of the settlement between the management of the Pearl Continental Hotel, and the workers union since long, therefore, this type of payment having been not specifically excluded from the purview of Section 2(30) of Social Security Ordinance, 1965, would be deemed to have been treated as part of wages. In plain words wages means all kinds of payments which may be covered by the definition of remuneration for the services rendered by a persona and the word remuneration' has greater significance than the `wages' which may include the payments in respect of allowances, or services rendered and such other payments. The definition of term wages in sub-section (30) of Section 2 of Social Security Ordinance, 1965 is comprehensive and exhaustive and except the occasional payment which is not considered as part of wages, all payment which are made under any rule or an instrument, contract or settlement either as a statutory or contractual obligation must be treated as part of wages unless specifically excluded from the definition of wages under the law. The concept of social security contribution is to promote the welfare of working class and the payments made and expenses incurred by an employer on welfare and well being of his employees as his obligation are included in the definition of wages therefore, the provisions of the Ordinance cannot be construed in a manner which may destroy the purpose and defeat its object. It is clear from the scheme of law that if an employer in discharge of his contractual or statutory obligation pays an amount to an employee for the services rendered by him it will be treated as part of wages in terms of Section 2(30) of Social Security Ordinance, 1965 and not withstanding the mutual understanding that such payment would not be considered as part of wages, the same would remain part of wages unless is excluded from the definition of wages under the statute. However, the payments which are made by the employers occasionally without any statutory or contractual obligation for the well being of his employees, cannot be treated as part of wages but if the similar category of payment is made as contractual or statutory obligation, it would become part of wages under the law. This Court in Consolidated Sugar Mills vs. Sindh Employees Social Security Institution (PLD 1991 SC 862), observed that if an employer pays any amount to an employee in discharge of his contractual or statutory obligation for the service of the employee, it will be covered by the definition of the term "wages" given in above clause (30) of Section 2 of the Ordinance notwithstanding that the parties may provide in the settlement that it is not to be treated as part of wages unless under some statutory provisions, it can be so provided. However, we may also observe that if an employer occasionally without being under a contractual or statutory obligation, makes ex gratia payment to his employees for their well being, the same will not be covered by the above definition of the term "wages". The similar view was taken by this Court in Brooke Bond Pakistan Ltd. vs. Sindh Employees' S.S.I. (1990 SCMR 175).
The appellant had not raised any other point before the High Court and leave was also granted only on sole question whether guaranteed payment was part of wages or not, therefore, we in the light of foregoing discussion hold that guaranteed payment in the present case would be deemed as part of wages. This appeal is therefore, allowed with no order as to costs.
(Aliya Sattar Chaudhry) Appeal allowed.
PLJ 2006 SC 777 [Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ.
MANAGING DIRECTOR, NBF, ISLAMABAD and 2 others--Petitioners
versus
MUHAMMAD ARIF RAJA--Respondent
Civil Petition No. 836 of 2004, decided on 21.10.2005.
(On appeal from the judgment of Federal Service Tribunal, dated 14.2.2004 passed in Appeal No. 175(R)CS/03).
(i) Constitution of Pakistan, 1973--
----Art. 212(3)--Appeal against order of Federal Service Tribunal--Held: Finding of fact arrived at as a result of scrutiny by a judicial forum even if erroneous could not be gone into and disturbed by S.C. unless the same were found suffering from some jurisdictional defect. [P. 782] A
(ii) Constitution of Pakistan, 1973--
----Art. 212(3)--Appeal against order of Federal Service Tribunal--Held: Standard of evidence in departmental proceedings is certainly not same as is required to prove a fact before the regular Courts and departmental authorities are also not supposed to follow the technicalities of law to ascertain the genuineness of a document but the evidence, oral or documentary, to be used for proving the charge of misconduct must be of legal character and admissible in law. [P. 782] B
(iii) Constitution of Pakistan, 1973--
----Art. 212(3)--Removal from Service (Special Powers) Ordinance, (XVIII of 2000)--Removal from service--FST ordering reinstatement--Assailed--Held: Departmental authorities having raised a presumption on the basis of photostat letter, allegedly written by respondent without proving the signature and existence of original letter, considered him guilty on basis of inadmissible evidence--Order was rightly set aside by the F.S.T--Leave refused. [P. 782] C & D
Mr. Muhammad Afzal Siddiqui, ASC & Mr. Ejaz Muhammad Khan, AOR for Petitioners.
Raja Muhammad Asghar Khan, ASC & Mr. M.A. Zaidi, AOR for Respondent.
Date of hearing : 21.10.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 212(3) of Constitution of the Islamic Republic of Pakistan has been directed against the judgment dated 14.2.2004 passed by the Federal Service Tribunal whereby the appeal filed by the respondent against the order of his dismissal from service under Removal from Service (Special Powers) Ordinance, 2000, hereinafter called `the Ordinance', passed by the departmental authority was set aside and he was reinstated in service.
"(i) Running of a private business or as an employee of National Institute of Computer Studies, F-7 Markaz, Islamabad, without prior permission of the competent authority.
(ii) Letter dated 11.8.1998 addressed to Mr. Simon Huang Channel Sales Manager NCS/VUF Pacific was signed by you in the capacity of Director Academic Affairs of the said business and FIR No. 374 dated 23.11.2001 was lodged by Mr. Mansoor Hasan Khan, Advocate, against you and Major (Retd.) Muhammad Aslam with Golarah Police Station Islamabad alleging that you have received 25 to 150 US dollars per student in lieu of issuing some educational certificates for different examinations. You alongwith Major (Retd.) Muhammad Aslam defaulted to pay US Dollars 7013 as per agreement as a result of which a case was registered against you under PPC 34-420/406.
(iii) You failed to reply the charges conveyed to you in writing vide Letter No. 579HAA542 dated 2nd March, 2002, even today the 30th instant whereas your reply was supposed to be submitted by 28th February, 2002, the latest."
"1. The information provided to the competent authority by the complainant, M/S Khan & Associates is false, frivolous vexatious with a motive to harass me for ulterior motives.
(I) The allegation is wrong, hence, denied.
(II) My name has been mentioned in the said FIR by the complainant with mala fide intention just to harass me for ulterior motives in connivance with police of Golarah Police Station, Islamabad. Golarah Police Station, Islamabad has no jurisdiction to take cognizance of the matter because neither any of the parties resides within the territorial limits of P.S. Golarah or any alleged occurrence took place within its jurisdiction. The investigating officer of the said police station after investigating the matter found that no criminal breach of trust was committed, therefore, Section 406 was deleted from the said FIR on 9.2.2002, hence, it is evident that I did not receive any amount so there is no question of any default of payment on my part. The allegations in the said FIR by the complainant are just a concocted story. The matter is still under inquiry by the orders of Honourable Lahore High Court, Rawalpindi Bench, Rawalpindi.
(III) It is not correct that I failed to reply the charges conveyed to me in writing vide Letter No. 579HAA542 dated 2.3.2002. I submitted my reply on 2.3.2002 and denied all the charges and also pointed out that the matter was subjudice and the Honourable High Court had directed the S.S.P, Islamabad for an inquiry into the matter.
As the matter is pending before the High Court and no verdict has been given by the Honourable Court and inquiry by the orders of Honourable High Court is still under process, therefore, any inference just on the basis of allegations without any proof that I am guilty of gross misconduct is against the well settled principles of natural justice.
Without conducting an inquiry and without taking into account the result of inquiry which is under process by the orders of Honourable Lahore High Court, Rawalpindi Bench, Rawalpindi it is not fair to take any adverse action against me.
The written reply is hereby submitted with in time with a request that without due course of law no adverse action may very kindly be taken against me. The detailed reply has been given in the above paras.
The written reply is hereby submitted with in time with a request that without due course of law no adverse action may very kindly be taken against me. The detailed reply has been given in the above paras.
It is therefore, respectfully submitted that the show-cause notice may very kindly be withdrawn.
The Inquiry Officer, however, having found the respondent guilty of the charge of involvement in the private business submitted his report as under:--
"1. Mr. Muhammad Arif Raja did issue a letter dated 11.8.1998 to Mr. Simon Huang Channel Sales Manager NCS/VUE/Pacific under his signatures in the capacity of Director Academic Affairs of NICS. The letter in question does not bear complete mailing address of NCS/VUE Pacific as such it appeared to be faxed resultantly original copy must have retained by Mr. Arif Raja.
M/S VUE corresponded with Mr. Muhammad Arif Raja on 14.12.2000, 30-3-2000, 14.4.2000 through e-mail in connection with the business transactions with M/S NICS, Islamabad which proves his business involvement.
Due to alleged involvement of Mr. Muhammad Arif Raja, he was nominated in FIR No. 374, dated 23.11.2001 which is still pending.
While in service with NBF, Mr. Arif Raja remained involved in business with foreign entity which is a clear violation of service laws. His action falls under the definition of "Misconduct", Defined in Section 2, clause (b) "Removal from Service (Special powers) Ordinance, 2000" as he neither secured prior profession of the competent authority nor NBF ever granted such permission to engage himself in a private business."
The competent authority, in the light of report of Inquiry Officer, having fulfilled the requirement of giving a show cause notice and personal hearing to the respondent dismissed him from service vide order dated 19.11.2002 which was set aside by the Service Tribunal in appeal filed by the respondent and he was directed to be reinstated in service.
Learned counsel for the petitioner has contended that charge against the petitioner relating to the running of private business while in the service of the organization, was proved through the oral and documentary evidence based on the correspondence made by the petitioner as Director Academic Affairs of National Institute of Computer Studies, Islamabad, with Sales Manager of Foreign business concern and perusal of Photostat copy of the letter written by the respondent and its reply, available on record, would show that the transacted business with foreign business company in dollars. In addition, learned counsel having placed reliance on the criminal case registered against the respondent at the instance of a local advocate in relation to the business affairs of the respondent with the foreign company and his statement before the Inquiry Officer to the effect that the signature on the letter in question resembled with his signatures but the same were not in his hand has contended that respondent had impliedly admitted his involvement in the private business and in absence of any evidence to the contrary, the mere denial of the genuineness of signatures on the letter in question in cross-examination, would not be sufficient to exclude it from consideration, rather a strong presumption would be raised regarding his engagement in the business.
Learned counsel for the respondent caveator on the other hand has contended that except the Photostat copy of the letter referred to above, no other evidence, oral or documentary, was brought on record to prove the direct or indirect involvement of the respondent in the business of his cousin and in fact he was victimized due to the personal grudge and malice of the Managing Director of National Book Foundation who being annoyed with him for his becoming party in the writ petition filed by the employees of NBF in the High Court against the merger of National Book Foundation and National Book Council. He added that incidentally, pending disposal of the writ petition, an article was published in weekly Takbeer against the Managing Director and he having gathered an impression that respondent was instrumental in publication of said article, initiated the departmental proceedings against him on the basis of fake allegation due to the personal malice and grudge. The learned counsel submitted that the Managing Director with a view to get the desired result, appointed a person of equal official status of the respondent as his inquiry officer and in the light of report submitted by him, passed the final order in a mechanical manner. In nutshell, learned counsel argued that except a Photostat copy of the letter allegedly written by the respondent to the manager of a foreign company, which is inadmissible in evidence nothing was brought on record to prove the alleged misconduct.
There is no cavil to the proposition that a Government servant while in service, cannot engage himself in private business and running of such a business without permission is misconduct in terms of Government Servants (Conduct) Rules, 1964. In the present case, the basic fact required to be established through the evidence like any other fact, was that in what manner, the respondent was engaged in the private business and what evidence was brought on record to prove this fact. The genuineness of the signatures of respondent on the letter allegedly written by him to be sales manager of a foreign business company was also required to be specifically proved and without proving the above facts, the charge of misconduct could not be proved. The Tribunal, having thrashed out the factual position in the light of evidence brought on the record, has held that the petitioners have not been able to prove the charge against the respondent. The careful perusal of record would show that the petitioner instead of discharging the initial burden of proving the involvement of respondent in the private business through the reliable evidence as per requirement of law, proceeded to raise a presumption of fact regarding his engagement in the business on the basis of documents not admissible in evidence. The respondent in his statement made by him on oath before the Inquiry Officer while denying the allegation of his involvement in the business stated that the signature on the letter, allegedly written by him resembled with his signatures but the same were not in his hand and learned counsel for the petitioner without satisfying us that this portion of the statement of respondent could be legally treated as his admission to the charge, submitted that since under the law no hard and fast rule for raising a presumption has been laid down therefore, in the light of evidence available with the departmental authority, such a presumption could be raised. The learned counsel has neither been able to substantiate his argument nor could convince us that the finding of fact arrived at by the Tribunal was contrary to the law and facts of the case or was suffering from any infirmity of misreading or non-reading of evidence.
The contention of the learned counsel that the Tribunal being an appellate forum against the order passed by the competent authority, was not supposed to re-appraise the evidence and disturb the finding of fact arrived at by the departmental authorities, has no substance. The appeal before the Tribunal would lie both on question of law and fact and Tribunal was under legal obligation to decide all questions of law and facts raised before it and this Court is not an appropriate forum to go into factual controversy and re-appraise the evidence for determination of question of fact. This is settled principle that the finding of fact arrived at as a result of security by a judicial forum even if erroneous, can not be gone into and disturbed by this Court unless the same are found suffering from some jurisdiction defect. The standard of evidence in the departmental proceedings is certainly not the same as is required to prove a fact before the regular Courts and the departmental authorities are also not supposed to follow the technicalities of the law to ascertain the genuineness of a document in the manner as is done by the Courts of general jurisdiction but the evidence, oral or documentary, to be used for proving the charge of misconduct, must be of legal character and admissible in law.
The examination of the record would reveal that the departmental authorities having raised a presumption on the basis of photostat letter, allegedly written by the respondent, without proving the genuineness of his signature and the existence of original letter, have drawn an inference of the guilt of respondent entirely on the basis of inadmissible evidence. The learned counsel for the petitioner having realized the lacuna in the case, has requested that petitioner may be allowed to hold fresh inquiry into the allegation but we find that the evidence available with the department has already been brought on record and Tribunal having made a detail scrutiny of the evidence held that the charge was not proved against the respondent beyond doubt, therefore, it would not be fair to permit the petitioner to hold a fresh inquiry to fill in the lacuna in the evidence to prove the charge. The judgment of the Service Tribunal can be challenged before this Court under Article 212(3) of the Constitution only on a substantial question of law of public importance and in the present case the learned counsel, without raising such a question of law has sought interference of this Court on a controversial question of fact.
In the light of foregoing discussion, we find no substance in this petition and the same is accordingly dismissed. Leave is refused.
(Javed Rasool) Leave refused.
PLJ 2006 SC 783 [Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar & Ch. Ijaz Ahmed, JJ.
TEHSIL MUNICIPAL ADMINISTRATION, FAISALABAD--Petitioner
versus
SECRETARY, LOCAL GOVERNMENT, GOVERNMENT OF THE PUNJAB, LAHORE etc.--Respondents
Civil Petition No. 1923-L/2005, decided on 8.3.2006.
(On appeal from Judgment/Order dated 11.7.2005, passed by the Lahore High Court, Lahore in W.P. No. 8091/2005).
(i) Punjab Local Government (Taxation) Rules, 2001--
----Rr. 3, 4, 5, 6, 7, 8 & 9 Punjab Local Government Ordinance, 2001, S. 116--Constitution of Pakistan, 1973 Art. 185(3)--Respondents engaged in Business of Advertisement upon being aggrieved of enhancement in Tax/Advertisement fee--Petition allowed--Held: Assailed before High Court on grounds Tax/Fee enhanced without following procedure prescribed by law that fiscal notification cannot have retrospective effect--Tax proposals were widely published in the press by inviting objections which were also vetted by Government--Thereafter tehsil council approved same in meeting whereafter same were notified in the Punjab Gazette therefore Tax/Fee were legally enhanced--Further held: Points not agitated before High Court cannot be raised before Supreme Court consequently petition converted into appeal and allowed--Since the notification is to take effect from the date of publication in official gazette--The petitioner TMA would refund the revised amount of fee, if any collected during the period prior to publication of notification in the official gazette. [Pp. 784 & 785] A, B, C, D, F, G & H
(ii) Interpretation of Statute--
----Statute/Tax Laws cannot have retrospective effect rather the same takes effect from the date of publication in official gazette. [P. 784] E & H
Ch. Ali Muhammad, ASC for Petitioner.
Mr. Pervaiz Inayat Malik, ASC and Mr. Tanvir Ahmad, AOR for Respondents Nos. 3 to 6.
Date of hearing : 8.3.2006.
Judgment
Faqir Muhammad Khokhar, J.--The contesting Respondents Nos. 3 to 7 filed Writ Petition No. 8091/2005 calling in question the validity of Gazette notification dated 10.2.2005 published by the petitioners for enhancing the fees on advertisement etc. The same was allowed by the Lahore High Court, Lahore vide impugned judgment dated 11.7.2005. Hence this petition for leave to appeal.
The learned Counsel for the petitioner submitted that the proposals for the revision of the fees in question were duly published in the national press including the Daily Nawa-e-Waqt dated 29.4.2004 and the Daily Jang dated 1.5.2004 inviting objections from the general public. A number of objections were filed from the side of the Respondents Nos. 3 to 7. The draft notification of the proposals was sent to the Respondent No. 1 for vetting before the same was placed before the Tehsil Council as required by Section 116 of the Punjab Local Government Ordinance, 2001. The procedure prescribed by Rules 3, 4, 5, 6, 7, 8 & 9 of the Punjab Local Government (Taxation) Rules, 2001 was scrupulously complied with. It was lastly submitted that the notification dated 10.2.2005 was validly published so as to take effect from the date of its publication in the Gazette i.e. 10.2.2005 and not w.e.f. 1.7.2004 as erroneously mentioned therein.
On the other hand, the learned Counsel for the contesting Respondents Nos. 3 to 7 argued that the notification dated 10.2.2005 was unlawfully made effective from 1.7.2004 as clearly mentioned therein. It was further contended that the Tehsil Municipal Council/Administration was not competent to levy and fee on the bill boards which subject matter was exclusively reserved for the Zilla Council in City Districts vide Item No. 11 of Part II and Item No. 6 of Part III of Second Schedule of the Ordinance. It was lastly submitted that the Tehsil Municipal Councils/Administrations had already been reorganized/reconstituted. Therefore, the petitioner had no locus standi to file the present petition.
We have heard the learned Counsel for the parties at some length and have also perused the available record. We find that the Taxation proposals were widely published in the press by inviting objections. The contesting Respondent No. 3 and others had raised objections. The taxation proposals were sent to the Government for vetting as required by law. Thereafter, the Tehsil Municipal Council/Administration in its meeting dated 28.9.2004 approved the taxation proposals which were thereafter notified to the Punjab Gazette on 10.2.2005. The procedural requirements of the law were satisfied by the petitioner. The learned Counsel for the petitioner frankly conceded that the revision of taxes and fees would take effect from 10.2.2005 i.e. from the date of publication of the notification in the Punjab Gazette and not from 1.7.2004 as mentioned therein. The other questions raised by the learned Counsel for the contesting respondents were not agitated before the High Court. Therefore, we would not like to express any opinion in regard thereto. In our view, the impugned judgment of the High Court is not sustainable at law.
For the foregoing reasons, this petition is converted into appeal and the same is allowed. The impugned judgment dated 11.7.2005, passed by the Lahore High Court in Writ Petition No. 8091/2005 is set aside. Consequently, the writ Petition No. 9081/2005 of the Respondents No. 3 to 7 shall stand dismissed. The petitioner shall be liable to refund the revised amount of fees etc., if any, collected during the period from 1.7.2004 to 8.2.2005 in pursuance of notification dated 31.5.2004 as published in the Punjab Gazette on 10.2.2005. There shall be no order as to costs.
(Rafaqat Ali Sohal) Petition dismissed.
PLJ 2006 SC 785 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ.
TEHSIL MUNICIPAL ADMINISTRATION FAISALABAD CITY--Appellant
versus
MUHAMMAD SALEEM and others--Respondents
C.A Nos. 61 & 62/2003 & 713 of 2005, decided on 16.12.2005.
(On appeal from the judgment dated 6.5.1999 in W.P. No. 5938 of 1996 and dated 14.10.2002 in W.P. Nos. 18452 and 18453 of 2000, passed by Lahore High Court, Lahore).
(i) Payment of Wages Act, 1936 (IV of 1936)--
----Preamble--Over-time payment--Entitlement--Over-time payment is allowed under Payment of Wages Act, 1936 only to persons employed in a "Factory". [P. 786] A
(ii) Payment of Wages Act, 1936 (IV of 1936)--
----Preamble--Factories Act, (XXV of 1934), S. 2(J)--Employees of Tehsil Municipal Administration--Claim to over-time payment for over-time work--Municipal Committee or Municipal Administration does not fall within definition of "factory" and no "manufacturing process" is undertaken therein or thereby--Employees thereof, cannot be treated as workers specifically entitled to over-time payment--Committee of its own accord however can pay as much bonus to employees for any extra work but the same cannot be claimed as of right by employees as is done by workers working in a factory as defined by Factories Act, 1934. [P. 787] B
(iii) Factories Act, 1934 (XXV of 1934)--
----S. 2(J)--Limitation Act (IX of 1908), S.3--Time barred appeal--Effect of limitation--Verdict of Supreme Court that employees of Municipal Committee/Administration are not workers in a Factory, such judgment is in rem and not personam--Judgment of Supreme Court that employees in question are not entitled to over-time payment, the same would not visualized that some workers would be disentitled while others would become entitled merely because their against, appeal of committee appellant was time barred--Benefit of limitation thus, cannot be derived and in faith and circumstances of present case, delay in filing appeal was condoned, though, such fact otherwise would have made least difference--Judgment of High Court whereby employees of appellant were found entitled to over-time payment was set aside. [P. 787] C
PLD 2002 SC 452, ref.
Syed Farooq Hassan Naqvi, ASC for Appellant.
Mr. N.A. Butt, ASC for Respondents.
Date of hearing : 16.12.2005.
Judgment
Sardar Muhammad Raza Khan, J.--Tehsil Municipal Administrator Faisalabad has filed these appeals with leave of the Court granted on 22.6.2005 against the judgments dated 14.10.2002 in Writ Petition Nos. 18452 and 18453 of 2002 and the judgment dated 6.5.1999 in Writ Petition No. 5938 of 1996. The judgments dated 14.10.2002 were based on a former judgment of the learned High Court rendered in Writ Petition No. 5938 of 1996 on 6.5.1999.
The respondents in all the appeals are the employees of Tehsil Municipal Administration Faisalabad. They, most probably, were entrusted the job of removing encroachments and unauthorized occupations for which they claimed payment of over-time job. It was denied by the Administration but granted through the impugned judgments of the learned High Court, based on the judgment dated 6.5.1999 in Writ Petition No. 5938 of 1996. The judgment aforesaid runs counter to the verdict given by this Court in Town Committee Gakhar Mandi v. Authority under Payment of Wages Act, Gujranwala (PLD 2002 SC 452) which, no doubt came subsequent to the original judgment dated 6.5.1999 of the High Court.
Over-time payment is allowed under the
Payment of Wages Act, 1936 only to the persons employed in a Factory'.Factory', on the other hand, is defined in Section 2(j) of the Factories Act 1934, meaning to be "... any premises including the precincts thereof, whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on or is ordinarily carried on with or without the aid of power, but does not include a mine, subject to the operation of Mines Act, 1923 (IV of 1923)." Such definition of factory caries an important expression
manufacturing process' that must be in existence to render any precincts asfactory'.
`Manufacturing process' is again defined in Section 2 (g) of the Factories Act 1934, as follows:--
"(g) `Manufacturing process' means any process--
(i) for making, altering, repairing ornamenting, finishing or packing, or otherwise treating any article or substance with a view to its use, sale, transport, delivery or disposal, or
(ii) for pumping oil, water or sewage, or
(iii) for generating, transforming or transmitting power;"
The aforesaid definitions of factory' andmanufacturing process', if minutely kept in view, would indicate that a Municipal Committee or a Municipal
Administration does not at all fall within the definition of a factory' and nomanufacturing process' is undertaken therein or thereby. We would avoid rendering any further reasons or grounds because the same are elaborately discussed in our judgment of Town Committee Gakhar Mandi, supra. Once, it is determined that the Municipal Committee/Administration is not a factory' within the meanings of Factories Act 1934, the employees thereof cannot by any stretch of reasoning, be held as workers specifically entitled to over-time payment. Though some extra payment made to the employees at one time or at times is taken benefit of and is alleged as an estoppel against the Committee but it carries no weight because such payment was made a bonus in order only to compensate the employees. The Committee may, of its own accord pay as much bonus to the employees for any extra work but the same cannot be claimed as of right by the employees as is done by the workers working in aFactory' defined by
Factories Act 1934.
Civil Appeal No. 713 of 2005 concerning Zafar Ali respondent is time barred by 1856 days. The matter of limitation and that of condonation, at the time of grant of leave, was deferred to the final hearing of appeals. In this behalf we perfectly agree with the stance taken by the Municipal Administration in Civil Appeal No. 713 of 2005 that Zafar Ali respondent was himself a petitioner before the High Court and at the same time acted as a representative of the Committee. That he made certain concessions on behalf of the Committee favouring his claim and it was he who was responsible for not bringing the impugned judgment to the notice of the administration. This act of Zafar Ali is claimed to be of utter malafide.
Regardless of what Zafar Ali is alleged or proved to be involved in, once this Court has held that the employees of Committee are not the workers in a `Factory', it cannot be visualized that some of them would be disentitled and the others would become entitled merely because their against, the appeal of the committee was time barred. The point that we intend bringing home is that the verdict of this Court already given and presently endorsed, with regard to law point involved, is a judgment in rem and not personam. The benefit of limitation, thus cannot be derived and, in the strict circumstances of the present case, it is hereby condoned though it otherwise would have made the least difference. In some what similar circumstances, this Court had condoned a delay of 2412 days (1987 SCMR 753).
Consequently, for all that has been discussed above, all the three appeals are hereby accepted and the impugned judgments of the learned High Court set aside.
(Aziz Ahmad Tarar) Appeals accepted.
PLJ 2006 SC 788 [Appellate Jurisdiction]
Present : Abdul Hameed Dogar and Raja Fayyaz Ahmed, JJ.
MUHAMMAD NISAR--Petitioner
versus
STATE--Respondent
Jail Petition No. 381 of 2003, decided on 14.10.2005.
(On appeal from the judgment dated 16.10.2003 of Peshawar High Court, Peshawar passed in Cr. A. No. 451-2003).
(i) Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 324--Sentence of death awarded to accused for offence of murder, confirmed by High Court, assailed, accused--Plea of accused for lesser penalty stressed on the ground that accused had fired only one shot which proved fatal--Expert's evidence would lead a prudent mind to believe that deceased and injured were subjected to repeated fires out of which a fatal shot hit deceased at vital part causing his death--No prudent mind would believe that accused fired multiple shots with deadly weapon without any intention to cause death of deceased or had no knowledge that attributed act would not in ordinary course of nature be sufficient to cause death of person subjected to firing--Complainant's statement before Police and in Court gets due corroboration from testimony of other un-interested and independent ocular witness of incident--Nothing on record would suggest that something preceding incident had taken place which caused abrupt provocation to accused to resort to firing--Nothing emerges from prosecution evidence to militate, in awarding lesser sentence of life imprisonment as against normal penalty of death which had been maintained by High Court on consideration, appraisal and scrutiny of entire evidence.
[Pp. 793, 794 & 795] A, B & C
(ii) Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34/365-A & 201--Constitution of Pakistan, 1973, Art. 185(3)-- Non-recovery of Investigating Officer to recover weapon of offence from accused who absconded after commission of offence as also seizure of one empty from place of occurrence per se would not by any stretch have an adverse effect on prosecution case in view of un-impeached ocular account of incident medical evidence, such as, seizure of blood-stained earth from place of incident, blood-stained clothes of deceased and injured, seizure of crime empty emitting fresh discharge of gun powder and report of serologist coupled with absconsion of accused after incident--No case for leave to appeal having been made out, leave to appeal was refused. [Pp. 795 & 796] D
1969 P.Cr.L.J. 908; PLJ 1982 SC 238; PLJ 1991 SC 309; 1995 SCMR 1846; PLJ 1996 SC 831; 2000 SCMR 683; PLJ 2000 SC 1091, ref.
Mr. Muhammad Zaman Bhatti, ASC for Petitioner.
Nemo for State.
Date of hearing : 14.10.2005.
Order
Raja Fayyaz Ahmed, J.--By this Jail Petition leave to appeal has been sought for against the judgment dated 16.10.2003 of the Division Bench of the Peshawar High Court, Peshawar passed in Criminal Appeal No. 491/2003, whereby the appeal filed by the petitioner namely Muhammad Nisar convicted by the learned Additional Sessions Judge, Mardan under Section 302(b) PPC respectively sentenced to death and to five years R.I. with a fine of Rs. 25,000/- under Section 324 PPC and in default of payment of fine to further undergo six months S.I which if recovered be payable to the victim as compensation under Section 544-A Cr.P.C., has been dismissed and the Murder Reference answered in affirmative by confirming the death sentence awarded to the petitioner.
The brief facts of the case are that on receipt of murasila Ex. PW-1/A, containing Fard-e-Bayan of injured Ikram son of Fazal Qadir, case Crime No. 892/2001 was registered with PS B-Division, District Mardan on the same date at 4:50 p.m. under Sections 302/324/34 PPC against the nominated accused person namely Abdul Raziq, Usman and Nisar (petitioner), wherein; it has been disclosed by PW Ikram to the Incharge Police Post ASI Abdul Qadeer that on the above said date at 4:15 p.m. he alongwith his deceased brother Ghulam Qadir and a neighbour Liaqat (PW-11) were present at the place of incident and in the meanwhile Abdul Raziq, Usman and Nisar sons of Taza Khan started firing at them, as a result whereof; he (Ikram/complainant) suffered serious injuries and his brother Ghulam Qadir died at the spot and the accused persons fled away from the scene of occurrence. Motive of the crime was disclosed to be that about 2/3 days ago there was a row between them. In the note recorded below the Fard-e-Bayan by PW-8 ASI Abdul Qadeer Khan; it has been noted that the complainant in injured condition brought the dead body of his brother Ghulam Qadir in a private vehicle to the Causality Department of DHQ Hospital, Mardan, who narrated to him about the incident mentioned above, has been reduced into writing by him, which he read over to the complainant, who in acknowledgement of the correctness of his statement inscribed his signature below his statement/report. Further note of the Police Officer shows that he prepared the inquest and injury report of PW Ikram and handed over the relevant papers to the doctor for the post-mortem of the dead body of the deceased and sent murasila to the Police Station through constable Fayyaz for registration of the case.
ASI Muhammad Iqbal (PW-15) on the date of incident at about 4:15 p.m. received information about the incident from the people and rushed to the spot and found that the injured and deceased have already been shifted to the hospital, he however, arrested accused Abdul Raziq and Usman from near to the place of incident after a chase, so he took them to the police station. He is also musheer to the recovery of the empty, blood-stained earth and blood-stained clothes of injured and in his presence seizure memos: Ex. PW-3/1 and Ex. PW-3/2 were prepared by the Investigating Officer on which he inscribed his signature as a co-musheer. PW-13 Zarif Khan SI P.P. Hoti on 21.11.2001 was appointed to investigate the case and received murasila and copy of the FIR whereupon he proceeded to the place of incident, inspected by him, he secured blood-stained earth and took into possession .30 bore empty, emitting fresh discharge smell vide memo: Ex. PW-3/1. He also took into possession the blood-stained shirt, shalwar and banayan of deceased Ghulam Qadir and shirt of injured Ikram, produced to him by FC Sajid, vide memos: prepared by him in presence of Musheers. The blood-stained earth, clothes of the deceased and shirt of the injured were produced as articles. He prepared the site map of the place of wardat as Ex. PW-3 at the instance of PW Liaqat and interrogated Abdul Raziq and Usman arrested on the same date, whereas; accused Muhammad Nisar was since absconding after the incident therefore, he obtained his arrest warrants from the Magistrate by submitting application produced as Ex. PW-13/1. He also produced the unexecuted arrest warrants of the accused Nisar and thereafter, proclamation under Section 87 Cr.P.C. was procured by him as Ex. PW-13/2 vide murasila Ex. PW-13/3. The blood-stained articles were sent to the FSL for chemical examination and received the result produced by him as Ex. PW-13/4 to the effect that the articles were stained with human blood. He recorded the statements of PWs and after completion of investigation submitted the case papers to the SHO for submission of incomplete challan for trial of the offence against accused Abdul Raziq and Usman and for proceedings under Section 512 Cr.P.C. against PO Muhmmad Nisar (petitioner), who was arrested on 17.9.2002, accordingly; complete report/challan was submitted in the trial Court. All the three nominated accused persons were indicated in view of the accusation and incriminating material produced with the challan by the learned trial Court, to which they did not plead guilty.
The prosecution to substantiate the accusation produced 14 witnesses namely Abdul Qayyum Khan, the then SHO/PS B-Division Mardan, who after completion of invetigation submitted challan in the Court. PW-2, Khan Ghalib Khan, SI/PS B-Division Mardan, arrested the proclaimed offender/accused Muhammad Nisar and submitted supplementary challan. PW-3 Muhammad Khan, FC, in whose presence the Investigating Officer took into possession an empty of .30 bore, emitting smell of fresh discharge vide memo: Ex. PW-3/1, produced by the witness and a co-musheer to seizure memo of blood-stained earth, shirt, shalwar and Banyan of deceased Ghulam Qadir and blood-stained shirt of injured Ikram produced to him by FC Sajid. These articles according to the witness were sealed into separate parcels. He also produced memo: Ex. PW-3/2 in respect of the blood-stained articles, on which he inscribed his signature as a co-musheer. According to PW-4 Alam Zaib Khan, ASI/PS B-Division Mardan, accused Nisar was arrested on 14.9.2002 in case Crime No. 197/2001 under Section 13-E of the Arms Ordinance, 1965 of PS Wari and on information about the arrest of the proclaimed offender he obtained his custody and arrested him in connection with the murder case Crime No. 892/2001 of PS B-Division on 17.9.2002. During course of interrogation the accused led PW-4 to the place of occurrence and the pointation memo: Ex. PW-4/1 was prepared by the witness in presence of co-musheers. On completion of investigation from accused Nisar he handed over the case file to the SHO for submission of challan. PW-4 Sajid Ali FC escorted the dead body of the deceased to the hospital and to him, the medical officer after conducting post-mortem of deceased Ghulam Qadir, handed over the clothes of deceased, which he delivered to the Investigating Officer. PW-6 Farman Ali has identified the dead body of his deceased brother Ghulam Qadir before the Police Officer and Medical Officer. PW-7, Usman Gul is the witness of the pointation memo: Ex. PW-4/A in whose presence accused Muhammad Nisar pointed out the place of wardat to the Investigating Officer. PW-8, Abdul Qadeer Khan, ASI deposed that he was on duty at the police post, Causality Department DHQ Hospital, Mardan on 21.11.2001, when the complainant Ikram in injured condition was brought to the hospital alongwith the dead body of deceased Ghulam Qadir by the co-villagers and in his presence, the injured made report to him which he recorded vide murasila Ex. PW-1/A on which the complainant inscribed his signature, attested by Mushtaq and PW Liaqat. He sent the murasila to the police station for registration of the case through FC Fayyaz Khan, he also prepared the injury-sheet produced as Ex. PW-8/2 and Ex. PW-8/3 of deceased Ghulam Qadir and the dead body was sent in escort through Sajid FC for post-mortem examination. PW-9, Shamsher, Moharir/HC registered the FIR in the case, produced as Ex. PW-PA on receipt of murasila from Abdul Qadeer. PW-10, Ikram, brother of the deceased and PW-11 Liaqat have been produced as ocular witnesses of the crime, out of whom Ikram suffered gunshot wounds on his person. PW-12 Itebar Shah HC was entrusted with the arrest warrants of the absconding accused Muhammad Nisar (petitioner) for execution but due to wilful concealment of the accused, he failed to execute his arrest warrants and submitted his report to such effect produced by the witness as Ex. PW-12/1. After that, proclamation under Section 87 Cr.P.C. was issued and handed over to him, he completed the required formalities in such behalf and produced the same Ex. PW-12/2 alongwith his report. PW-13, Zarif Khan SI/PS PP Hoti conducted the investigation of the case mentioned hereinabove. PW-14, Dr. Zakirullah, Medical Officer, DHQ Hospital Mardan examined the injured Ikram and also performed autopsy of the dead body of deceased Ghulam Qadir, he produced the MLC of the injured as Ex. PW-14/3 and the post-mortem report of the deceased Ex. PW-14/4 and the inquest report containing remarks as Ex. PW-14/5.
Mr. M. Zaman Bhatti, learned ASC has been heard at length. He contended that in view of the evidence produced by the prosecution, the possibility of something serious having erupted/taken place immediately preceding the incident cannot be ruled out and the solitary injury caused on the person of the deceased, however, lends support to the above aspect of the case, hence nothing precluded the petitioner to have subjected the deceased to further firing, therefore, in such view of the matter keeping in view the medical evidence, which render support to the contention raised by him that the petitioner never intended to cause death of the deceased. According to the learned counsel, the over all facts and circumstances of the case do give rise to the assumption that there must have been reasonably some cause of provocation between the petitioner and the deceased, which led consequently to the unfortunate incident hence according to the learned counsel sentence of penalty of death in view of well settled principles of safe administration of criminal justice in such like cases is unwarranted and not to be sustained. The learned counsel pointed out that as regards alleged aerial firing, the report lodged by the ocular witness Ikram (PW-10) is silent but in such behalf material improvement has been made to strengthen the case of the prosecution for some reasons best known to the brother of the deceased and the question of absconsion of the petitioner after the incident in view of his submissions becomes insignificant, which in no way resulted in improving the case of the prosecution. Learned counsel vehemently argued that there existed reasonable probability of something having happened causing abrupt provocation, as it emerges from the case of the prosecution, to the petitioner, which resulted into the alleged incident, hence the same militates against the extreme penalty to which according to the learned counsel, the petitioner has not been exposed. The learned counsel pointed out that only one empty was seized from the place of wardat, although as per medical evidence and version of PW Ikram he also sustained gunshot wounds nor even the investigating officer was able to recover the fire-arm, which factor has due adverse effect on the prosecution case. The learned counsel in support of above noted submissions placed reliance on the reported judgments i.e. (1) Fazle Malik and another v. the State (1969 P.Cr.LJ. 908) (2) Muhammad Bashir v. The State (PLJ 1982 SC 238) (3) Zahid Parvez and another v. the State (PLJ 1991 SC 309), (4) Khalid Javed v. Ansar Khan and others (1995 SCMR 1846) (5) Ali Muhammad s/o Noor Muhammad v. Ali Muhammad s/o Wali Muhammad (PLJ 1996 SC 831) (6) Tayyab Hussain Shah v. The State (2000 SCMR 683) and (7) Bashir Ahmed v. the State (PLJ 2000 SC 1091).
We have carefully gone through the judgments passed by the learned High Court and the trial Court in the light of the record of the case and have also considered the case law cited by the petitioner's learned counsel in support of his contentions scrutinized in view of the entire evidence.
From the contentions put forth on behalf of the petitioner, it is quite clear that the learned counsel candidly conceded that the commission of crime is not disputed by the petitioner and that he attempted to convince about the extreme penalty of death awarded to the petitioner being unwarranted and not sustainable in the given facts and circumstances of the case, which reasonably according to the learned counsel gave rise to conclude from the prosecution's evidence that something having occurred/took place between the deceased and the petitioner causing an abrupt provocation which allegedly motivated the petitioner to resort to firing, who undisputedly fired a single shot on the person of the deceased, which proved to be fatal. Such a contended aspect, has been considered and examined in the light of the evidence of ocular witnesses namely Ikram (brother of the deceased) and PW Liaqat, an independent witness and unconcerned person including the medical evidence adduced at the trial. From the medical evidence of Dr. Zakirullah M. O. DHQ Mardan (PW-14), who conducted the post-mortem of the deceased Ghulam Qadir, it has been proved by the prosecution that the deceased suffered fire-arm entrance wound on the left orbit destroying left eye, exposing brain matter with an exit wound on the left side of skull. As a result whereof his scalp, skull, membrane and brain matter were damaged leading to haemorrhage, shock and death, whereas; Ikram, brother of the deceased PW-10 has also suffered three fire-arm entrance wounds i.e. on the upper half of the posterior side of the left arm, left side of the chest just below the axilla and the entrance wounds on the 4th and 5th fingers of left hand fracturing the phalangeal bones with exit wounds corresponding to the former two injuries. The medical evidence despite cross-examination conducted could not be discredited, impeached or rebutted. The expert's evidence unequivocally leads a prudent mind to believe that the deceased and the injured were subjected to repeated fires out of which a fatal shot hit the deceased at the vital part, as above noted, of his body, therefore it could not be said that only one shot was fired by the assailant and luckily PW Ikram, brother of the deceased, survived, who too sustained serious fire-arm wound on the left side of his chest just below the axilla having an exit wound on the back of left half of his chest and was brought to the hospital promptly after the incident in semi unconscious condition with a non recordable BP, hence it cannot be said that the appellant fired multiple shots with the deadly weapon without any intention to cause the death of the deceased or had no knowledge that the attributed act will not in the ordinary course of nature be sufficient to cause the death of the person subjected to firing.
It has been alleged in the report that PW Muhammad Ikram alongwith his brother Ghulam Qadir deceased and a neighbour Liaqat were present on the place of incident and in the meantime accused Abdul Raziq, Usman, and Nisar interse brothers equipped with fire-arms made firing on them as a result whereof he suffered serious injuries whereas; his brother Ghulam Qadir died on the spot. The motive of the crime was disclosed that about 2/3 days ago there was a row between them. PW Ikram in his deposition at the trial supported to his version as contained in the report and specifically alleged that all the three nominated accused persons came to the spot duly armed, out of whom accused Muhammad Nisar made firing initially in the air and he restrained him from doing so, on which accused Muhammad Nisar got annoyed and with the help of his other brothers/co accused persons made firing at him and Ghulam Qadir, due to which he was injured and Ghulam Qadir after receiving fire-arm injures died on the spot. It is worthwhile to note that PW Ikram in serious condition was brought to the hospital promptly after the incident alongwith the dead body of his deceased brother Ghulam Qadir. Hence, it could not be expected from him to have mentioned in his report the details of the incident as it happened. Therefore, in such view of the matter his testimony containing details of the occurrence before the trial Court will be of great significance and value as he was subjected to cross-examination by the defence. PW Ikram in his deposition has supported to the contents of his report on all material particulars. No doubt he for the first time in his evidence before the trial Court stated that the nominated accused present in Court came to the post duly armed with deadly weapons, out of whom accused Nisar made aerial firing so he restrained him from doing so, on which accused Nisar got annoyed and with the help of his brothers/co-accused persons, Nisar accused started firing at him and Ghulam Qadir. This part of his evidence has not been challenged or disputed by the defence in cross-examination nor relating to such deposed fact, the PW was confronted with the contents of the report made by him to the policy officer; hence such a deposed fact in the given circumstances of the case and the physical status of the PW at the relevant time when he made the report shall be deemed to have been accepted by the accused, which further gets due corroboration from the testimony of the other uninterested and independent ocular witness of the incident namely Liaqat (PW-11), who had fully corroborated to the version of PW Ikram and was subjected to cross-examination as well but his testimony and that of PW Ikram remained firm, consistent, convincing, straight forward and reliable. Hence, the direct evidence adduced in support of the incident by the ocular witnesses cannot be doubted, discredited or discarded on mere suppositions or any hypothesis not emerging from the prosecution evidence.
Reverting to the contention of the learned ASC that the probability of something very serious in nature had happened immediately preceding the incident stands excluded from the specific and positive version of the coular witnesses, who stated that the nominated accused persons reached to the place of incident out of whom accused Nisar initially made aerial firing on which PW Ikram asked him not to do so, on which the petitioner Nisar felt annoyed and started firing with the pistol at him and his deceased brother Ghulam Qadir. In view of such an undisputed and unchallenged version of the PWs, the contention raised by the learned counsel for the petitioner becomes devoid of any substance to award lesser sentence to the petitioner as against normal penalty of death confirmed by the learned High Court on proper appraisal and scrutiny of entire evidence and on taking into consideration the entire facts and circumstances of the case. It has been held in the reported judgment of this Court i.e. Muhammad Bashir supra that awarding of lesser sentence is not a universal rule in the case of solitary fata below as the Courts have to take notice of seat of injury, weapon used and damage done together with the relevant knowledge, preparation, intention or premeditation to be the relevant factors to be considered while awarding lesser sentence. The case law cited in support of the contention by the learned counsel for the petitioner for awarding lesser sentence in view of the above mentioned facts and reasons is not applicable to the case in hand in view of the material distinguishable facts of each case. The petitioner alongwith his two brothers/the nominated co-accused persons came to the place of incident equipped with fire-arms and started aerial firing on which he was asked by the PW Ikram not to do so which annoyed the petitioner and thereupon; he started firing at the PW Ikram and Ghulam Qadir deceased; does not in our considered view in absence of any reason, apparent or emerging from the evidence nor the act of asking the accused to stop firing would create a cause of grievance in the ordinary course of the event to the petitioner to have resorted to firing resulting in the instantaneous death of Ghulam Qadir deceased and inflicting serious injures to PW Ikram. There is nothing on record to presume that something had preceding the incident taken place, which caused abrupt provocation to the petitioner to resort to firing. The learned trial Court has also attended to such an aspect in its judgment and came to the conclusion in view of the evidence that nothing emerges from the prosecution evidence to militate, in awarding lesser sentence of life imprisonment as against the normal penalty of death, which has been maintained by the learned High Court on consideration, appraisal and scrutiny of entire evidence.
Non recovery or failure on the part of the investigating officer to recover the weapon of offence from the accused, who absconded after commission of the offence and seizure of one empty from the place of occurrence per se will not by any stretch have an adverse effect on the prosecution case in view of the un-impeached ocular account of the incident, medical evidence corroborated by other pieces of circumstantial evidence, such as, seizure of blood-stained earth from the place of incident, blood-stained clothes of the deceased and the injured, seizure of crime empty emitting fresh discharge of gun powder and the report of serologist coupled with the absconsion of the accused after the incident.
No case for leave to appeal is made out, consequently; this petition is dismissed and leave to appeal is refused.
(Aziz Ahmad Tarar) Leave refused.
PLJ 2006 SC 796 [Appellate Jurisdiction]
Present: Javed Iqbal and Raja Fayyaz Ahmed, JJ.
MUHAMMAD AMIN—Petitioner
versus
STATE--Respondent
Criminal Petitions Nos. 46 & 49-Q of 2005, decided on 24.10.2005.
(On appeal from the judgment dated 5.9.2005 passed by the High Court of Balochistan, Quetta, in Criminal Appeal No. 56 of 2003).
(i) Anti--Terrorism Act, 1997 (XXVII of 1997)--
----S. 7(a)--Criminal Procedure Code, 1898 (V of 1898), Ss. 164, 342 & 340(2)--Retracted confession--Validity of conviction--No doubt that accused had retracted from his statement got recorded u/S. 164 Cr.P.C. but stated in his statement got recorded u/S. 342 Cr.P.C. that it was result of coercion and torture but surprisingly in his statement got recorded u/S. 340 (2) Cr.P.C. a complete somersault was taken by saying that it was not got recorded--Once Confessional Statement was found true and voluntary, conviction could have been awarded--Held: Confessional statement finds full corroboration from medical evidence. [Pp. 799, 800 &801] A, B & D
(ii) Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 7(a)--Criminal Procedure Code, 1898 (V of 1898), S. 164--Retracted confession--Punishment--Challenge to--Appreciation of evidence--Recovery of pistol was recovered at pointation of accused at his disclosure and disclosure memo was produced before trial Court--Alleged recovery was effected was within exclusive knowledge of accused and there could be no other inference except that it was got recovered at pointation of accused--Entire evidence has been appreciated in accordance with well-entrenched prevalent principles of criminal administration of justice and no illegality or irregularity has been committed by Courts below--Held: Impugned judgment being well based does not warrant interference--Petition dismissed. [Pp. 800 & 802] C & E
Mr. M. Aslam Chishti, Sr. ASC and Mr. S.A.M. Quadri, AOR (in both cases) for Petitioner.
Nemo for State.
Date of hearing : 24.10.2005.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 5.9.2005 whereby the criminal appeal preferred on behalf of petitioner has been dismissed and the judgment dated 10.9.2003 passed by learned Judge Anti-Terrorism Court Mekran at Turbat has been kept intact whereby the petitioner was convicted under Section 302(b) PPC read with Section 7(a) of the Anti Terrorism Act, 1997 and sentenced to death for two counts. The petitioner was also directed to pay an amount of rupees one lac as compensation pursuant to the provisions as contained in Section 544-A Cr.P.C. to the legal heirs of the deceased and in case of default to suffer R.I. for six months has been kept intact.
Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "P.W. 2 Tariq in his report dated 22.5.2003, registered with Tehsildar Tump District Kech vide FIR No. 16/2003, offence under Sections 302/109/34 PPC alleged that on the said date at about 11.00 a.m. his two brothers Nasir and Hakeem, who were teachers, after performing their duties were coming back to their home on a motorcycle, near Gomazi cross accused Jameel, Hakeem and Amin, made firing on them, due to which Nasir died at the spot while Aslam succumbed to the injuries on his way to hospital. The complainant by means of supplementary statement Ex. P/2-A, recorded by Naib Tehsildar/ Investigating Officer at the spot, added that accused Jameel, Hakeem and Amin with Kalashnikov, rifle made firing upon his brothers, due to which Nasir died at the spot while Aslam, who sustained injuries, told him that nominated accused persons made firing upon them, he after informing Tehsildar Tump over telephone took his injured brother to RHC Tump but he died on his way to hospital. The motive behind the incident was old enmity. P.W.7 Bashir Ahmed Naib Tehsildar was appointed Investigating Officer of the case, he reached at the place of incident seized the dead bodies vide memo Ex. P/7-A, inspected the site and prepared sketch Ex. P/7-B, blood-stained clothes were seized vide memo Ex. P/5-A. He arrested accused Muhammad Amin on 3.6.2003, who during investigation on 4.6.2003 vide disclosure Ex. P/4-A led the recovery of a TT pistol alongwith magazine and two live cartridges and memo Ex. P/4-B was prepared. On the very day the appellant made confession and his statement was recorded by Judicial Magistrate Tump, co-accused Hakeem and Jameel absconded as such on completion of investigation incomplete challan Ex. P/7-C was filed in the Court and appellant was sent up to face trial." On conclusion whereof the petitioner was convicted and sentenced as per detail mentioned in the preceding paragraph.
Mr. Muhammad Aslam Chishti, learned Sr. ASC entered appearance on behalf of petitioner and contended strenuously that on the basis of retracted confession which otherwise not true and voluntary, no conviction could have been awarded in the absence of any corroboratory material. It is also contended that medical evidence does not lend corroboration to the retracted confession which, according to him, was not examined in its true perspective by the learned Courts below. Mr. Muhammad Aslam Chishti, learned Sr. ASC also argued that the alleged recovered pistol could not have been treated as `crime weapon', hence no corroboration could be sought from it qua retracted confession. It is contended emphatically that dying declaration should have been discarded as the deceased was not in a position to make such statement.
We have carefully examined the above mentioned contentions in the light of relevant provisions of law and record of the case. The judgments of learned trial as well as appellate Courts have been examined carefully and evidence which has come on record scrutinized with the eminent assistance of learned ASC. After having gone through the entire record we are of the view that the prosecution has established the guilt to the hilt by producing cogent and concrete evidence. We are not persuaded to agree with the prime contention of Mr. Muhammad Aslam Chishti, learned Sr. ASC that on the basis of retracted confession no conviction could have been awarded in the absence of any corroboratory material and more so it was not voluntary and true which elements are sine qua non for believing such statement because it transpired from scrutiny of record that the petitioner was arrested on 3.6.2003 and confessional statement was got recorded on 4.6.2003 which eliminates the possibility of use of coercion, inducement or persuasion. The promptitude with which the confessional statement was got recorded depicts voluntariness. We have gone through the statement of learned Judicial Magistrate namely Abdul Saboor (P.W.1) by whom the confessional statement of petitioner was recorded which revealed that all the necessary formalities as enumerated in Section 364 Cr.P.C. were complied with in letter and spirit. The learned Judicial Magistrate (P.W.1) was subjected to cross-examination but nothing beneficial could be extracted rendering any assistance to the case of petitioner. No question regarding maltreatment or coercive measure was asked from the learned Judicial Magistrate and the only irresistible conclusion would be that the confessional statement was got recorded by the petitioner voluntarily and at his own. It is also indicative from the answers to the Questions Nos. 5, 6, 7 and 8 asked from the petitioner at the time of recording his confessional statement. A careful scrutiny of the confessional statement would further reveal that it was admitted in a categoric manner that at the time of occurrence the petitioner was armed with TT pistol and fired upon Aslam on his feet and also fired upon Nasir at his chest who showed resistance and both of them (Aslam deceased and Nasir) fell at the spot. The operative portion of the confessional statement is reproduced herein below in the words of the petitioner:--
There is no doubt that petitioner has retracted from his statement got recorded under Section 164 Cr.P.C. but stated in his statement got recorded under Section 342 Cr.P.C. that it was a result of coercion and torture but surprisingly in his statement got recorded under Section 340(2) Cr.P.C. a complete somersault was taken by saying that it was not got recorded. The learned Sr. ASC could not answer how to reconcile such a contradictory pleas. We are of the considered view that the confessional statement got recorded by the petitioner was true and voluntary. It is to be noted that once a confessional statement was found true and voluntary, conviction could have been awarded. Besides that what has been stated above the confessional statement finds full corroboration from medical evidence furnished by Dr. Nasir Ali (P.W.6) who found the following injuries on the dead body of Aslam:--
"1. Two bullets would seen on posterior aspects of knee joint. Exit was anterior surface of knee joint. Knee cap and knee joint severely damaged and lacerated.
One bullet wound seen upper border of right shoulder. Exit seen anterior axillary artery damaged and extremely bleeding."
The dead body of Nasir was also examined by Dr. Nasir (P.W.6) and the following injuries were noted:--
"1. A circular bullet wound with entrance on his right lumber region with no exit.
A circular bullet wound seen lateral side left upper arm with no exit."
A careful scrutiny of the medical evidence would reveal that it lends full corroboration to the confessional statement of the petitioner who did not mention the seat of injuries in the manner as portriated by Mr. Muhammad Aslam Chishti, learned Sr. ASC and no farfetched interpretation on the plain and simple language as used by the petitioner in his confessional statement and reproduced herein above would be required.
The factum of recovery has been proved and on the disclosure and pointation of petitioner, a TT pistol bearing No. CAL-30-MAUSER made as China by NORINCO alongwith two live cartridges and a magazine was recovered duly concealed in a boundary wall which was taken into possession vide recovery memo. (Ex. P/4-B). As mentioned herein above the recovery of pistol was recovered at the pointation of petitioner at his disclosure and disclosure memo. (Ex. P/4-A) was produced before the learned trial Court. It is worth mentioning that the place from where the alleged recovery was effected was within the exclusive knowledge of the petitioner and there could be no other inference except that it was got recovered at the pointation of the petitioner. No doubt that the said pistol was never sent to Forensic Science Laboratory but it hardy makes any difference as the above said fact has been admitted by the petitioner himself in his confessional statement which has been adjudged as true and voluntary and besides that an admitted fact is not required to be proved again as there is no such legal requirement.
There is no cavil to the proposition that conviction could have been awarded on the basis of retracted confession which proposition was examined in case of Mst. Joygun Bibi v. The State (PLD 1960 SC (Pak.) 313 as under:--
"We are unable to support the proposition of law laid down by the learned Judges in this regard. The retraction of a confession is a circumstance which has no bearing whatsoever upon the question whether in the first instance it was voluntarily made, and on the further question whether it is true. The fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings reached as to whether the confession was voluntary, and if so, whether it was true, for to withdraw from a self-accusing statement in direct face of the consequences of the accusation, is explicable fully by the proximity of those consequences and need have no connection whatsoever with either its voluntary nature, or the truth of the facts stated. The learned Judges were perfectly right in first deciding these two questions, and the answers being in the affirmative, in declaring that the confession by itself was sufficient, taken with the other facts and circumstances, to support Abdul Majid's conviction. The retraction of the confession was wholly immaterial once it was found that it was voluntary as well as true."
"As for the confessions the High Court, it appears, was duly conscious of the fact that retracted confession, whether judicial or extra-judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is well-settled that as against the maker himself his confession, judicial or extra-judicial, whether retracted or not retracted, can in law validly form the sale basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement."
The above view also finds support from the following judgments:--
Muhammad Yaqoob v. The State 1992 SCMR 1983, Mokha v. Zulfiqar PLD 1978 SC 10, Zakir Khan v. The State 1995 SCMR 1973, Roshan v. The State PLD 1977 SC 557, Umar Din v. Crown ILR 1921 Lah. 129, State v. Waqar Ahmed 1992 SCMR 950, Nadir Hussain v. The Crown 1969 SCMR 442, Habib Ullah v. The State 1971 SCMR 341, State v. Minhun PLD 1964 SC 813.
The retracted confession got recorded by the petitioner has been examined on the touchstone of the criterion as mentioned herein above. We have not found any irregularity or infirmity in the confessional statement which was got recorded in accordance with law and corroborated by eye account, medical evidence and recovery of pistol at the pointation of petitioner which has rightly been taken into consideration by the learned trial Court determination whereof has been upheld by the learned Division Bench of High Court.
An attempt has been made to show that from the place of occurrence empty cartridges of kalashnikov were recovered and therefore, the alleged murder was not committed by the pistol seems to be futile for the simple reason that the dead body of Nasir was lying on the southern side of the road from where no empty of pistol or kalashnikov was recovered which were subsequently handed over to the Investigating Officer by complainant which aspect of the matter has been made clear by Bashir Ahmad, Naib Tehsildar/I.O. (P.W.7.). It is not understood how the kalashnikov empties produced by the complainant can be treated as `crime weapon' as pressed time and again by the learned Sr. ASC on behalf of petitioner.
In the light of what has been mentioned above the question as to whether dying declaration has got any evidentiary value or otherwise? would have no material bearing on the fate of the case which otherwise has been discarded by the learned High Court. The entire evidence has been appreciated in accordance with the well-entrenched prevalent principles of criminal administration of justice and no illegally or irregularity has been committed by the Courts below. The determination of learned trial Court upheld by the learned High Court vide judgment impugned which being well based does not warrant interference. The petitioner being merit less is dismissed. For the reasons as mentioned herein above the criminal petition bearing No. 49-Q of 2005 is also dismissed.
(Aliya Sattar Chaudhry) Petition dismissed.
PLJ 2006 SC 802 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, HCJ, Muhammad Nawaz Abbasi & Tassaduq Hussain Jillani, JJ.
M. YOUNUS HABIB--Petitioner
versus
STATE--Respondent
Cr. P.L.A. No. 63 of 2001, decided on 7.12.2005.
(On appeal from the judgment of the High Court of Sindh at Karachi dated 6.3.2000 passed in Crl. A. No. 25 of 1995).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 537--Constitution of Pakistan, 1973, Art. 185(3)--Remand of case by High Court on the ground that charge framed against accused was defective--Legality--Charge framed against accused would indicate that the same did spell out period within which alleged transaction took place; total amount allegedly misappropriated; manner the offence took place and offences which were attracted to facts of case--F.I.R. registered against accused on complaint of concerned official specifically alleged that accused had acted in violation of Banking and other laws applicable to accused/bank officer--High Court while remanding case did not appreciate that minor errors and omission in charge framed against accused would not be material unless accused was in fact misled by such error and omission and that the same had occasioned a failure of justice--Admittedly accused did not raise such objections before trial Court that he had been misled by framing of charge in question--Such plea was not even taken in grounds of appeal filed before High Court--Order of retrial by High Court annulling judgment of Trial Court after five years and directing retrial was not warranted--Irregularity if any in framing of charge was curable u/Ss. 223 and 537 of Cr.P.C.--Order of remand in question was set aside and appeal of accused would be deemed to be pending before High Court to be decided on merits. [Pp. 804 & 805] A & B
AIR 1954 SC 657, ref.
Mr. Afzal Siddiqui, ASC for Petitioner.
Raja Abdul Ghafoor, ASC for Respondent.
Date of haring : 7.12.2005.
Order
Iftikhar Muhammad Chaudhry, CJ.--In this case learned High Court vide impugned judgment dated 6.3.2000 had remanded the case noticing that the charge framed against petitioner is defective. The learned counsel contended that for the reason of a defective charge trial will not be vitiated because if there was any defect that same was curable under Section 537 Cr.P.C. However, the learned counsel appearing for caveat contended that as the charge was not proper, therefore, the High Court had rightly remanded the case to the trial Court.
Admittedly, the accused had already undergone the sentence when the learned High Court set aside the judgment of the trial Court and remanded the case for retrial on the grounds that mere non-deposit of sale proceeds of dollar bearer certificates amounting to U.S. Dollars 36.7 Million within 72 hours after the sale would not amount to criminal misappropriation on the part of the accused, that the charge about the falsification of accounts under Section 477-A PPC was defective as no particulars of the manner of falsification of accounts by the accused had been given to him and similarly no particulars have been given about the charge under Section 5(2) of the Prevention of Corruption Act, 1947.
For a better appreciation of the issues raised it would be pertinent to refer to the charge which has been found to be defective by the learned High Court. The charge reads as under:--
"I, Rasheed A. Razvi, Presiding Officer. Special Court (Offences in Banks) Sindh, Karachi, hereby charge you accused namely Muhammad Younus Habib S/o Abdul Habib, as under:--
That during the period January to March 1994, while you were performing, acting as Chief Operating Officer, Mehran Bank Limited, criminally misappropriated the sale proceeds of Dollar Bearer Certificates amounting to U.S. $ 36.7 million (equivalent to Pak. Rupees 11 billion) which were under your control and dominion which were to be deposited with the State Bank of Pakistan within 72 hours after sale of the above said Dollar Bearer Certificates including its interest which you have not deposited with the S.B.P within the stipulated time and misappropriated the same by illegally converting, disposing of the same in violation of rules, legal contract and by falsification of Bank record and thus you have committed offences punishable under Section 409, 477-A PPC read with Section 5(2) of the Prevention of Corruption Act, 1947, and within the cognizance of this Court."
"Effect of errors. No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."
Besides this specific provision, there is Section 537 Cr.P.C. which, inter alia, lays down that no finding or sentence or order passed by Court of competent jurisdiction shall be reversed on account of any error in the charge or misjoinder of charges and that to determine whether any error, omission or irregularity in this regard has occasioned failure of justice, "the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
Coming to the facts and circumstances of the instant case, we note that non-mention of the particular State Bank regulation, or rule which required deposit of sale deposits of Dollar Bearer Certificates with the State Bank within 72 hours, the absence of particulars and the manner of falsification of accounts by the accused as also about the charge under Section 5(2) of Prevention of Corruption Act, 1947 were omissions or irregularities but they could warrant annulling of the findings of conviction justifying retrial only if the accused (a) had been misled by it and (b) if it had occasioned miscarriage of justice. A close look at the charge framed against the accused would indicate that the charge did spell out the period within which the alleged transaction took place the total amount allegedly misappropriated, the manner the offence took place and the offences which were attracted to the facts of the case. Moreover, the F.I.R. registered against the petitioner on the complaint of the Director General F.I.A. specifically alleged that petitioner who was the Chief Operating Officer of the Mehran Bank Ltd. had acted in violation of the banking and other laws applicable in the manner as under:--
"Dollar Bearer Certificates amounting to US dollar 36.7 million (equivalent to Rs. 1.1 billion) were sold by the bank during the period from January-March, 1994. Dollar Bearer Certificate is a Federal Government Paper, and is sold by banks on behalf of the Government of Pakistan. Full sale proceeds of the Dollar Bearer Certificates were required to be deposited in the Government account with the State Bank of Pakistan within 72 hours under the prescribed rules. Mehran Bank Limited have not deposited the sale proceeds of the said DBC's valuing US Dollar 36.7 million (equivalent to Pak Rupees 1.1 billion) and have instead obtained wrongful gain by misappropriation of the same thereby committing criminal breach of trust causing wrongful loss to the Government exchequer to the time of US $ 36.7 million (equivalent to Pak Rupees 1.1 billion) excluding the return/interest amount accrued thereupon by not depositing the amount within the stipulated period. Further inquiries into the affairs of Mehran Bank Limited are being conducted/carried out by the State Bank of Pakistan."
The afore-mentioned allegation was explicit and could not be described as vague. The learned High Court did not appreciate that these errors or omissions would not be material, "unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice." In para-10 of the impugned judgment, the learned High Court has attempted to explain how according to it the accused misled and referred to a question asked to the accused in his statement under Section 342 Cr.P.C. with regard to his salary and the reply given by him. This had nothing to do with the charge framed and no inference could be drawn from it that he was misled or that it had occasioned failure of justice. Furthermore, before giving any finding or observation that any error or omission had occasioned a "failure of justice", the law mandates that "the Court shall have regard to the fact that whether the objection should have been raised at an earlier stage in the proceedings." Admittedly, petitioner-accused did not raise this objection before the trial Court that he had been misled by the framing of the charge. Even after conviction the petitioner did not allege so in the grounds of appeal filed before the learned High Court and even during arguments, the petitioner's learned counsel never raised this plea that the petitioner had been misled by the framing of the charge. In these circumstances, it was not open for the Court of Appeal to have annulled the judgment and directed retrial after more than five years of the judgment of the trial Court. If the High Court was of the view that the evidence was deficient to prove the charge or it was not a case of conviction, the Court could proceed as mandated in law. But in the facts and circumstances given above, it was not a case in which conviction could be annulled on that sole ground. We are fortified in our view by a judgment of the Indian Supreme Court in Moti Das and others v. The State of Bihar (AIR 1954 SC 657) wherein at page 65 it was observed that, "but a mere imperfection in the charge cannot be used to over-throw a conviction unless prejudice can be shown. The irregularity is curable both under Section 225 and Section 537 of the Criminal Procedure Code."
For what has been discussed above, the judgment of the High Court of Sindh at Karachi dated 6.3.2000 is set aside and the appeal of the petitioner shall be deemed to be pending before the High Court to be decided on merits. Petition converted into appeal and allowed.
(Aziz Ahmad Tarar) Case Remanded.
PLJ 2006 SC 806 [Shariat Appellate Jurisdiction]
Present: Abdul Hameed Dogar, Chairman. Mian Shakir-ullah Jan, Raja Fayyaz Ahmed, Dr. Allama Khalid Mahmud and Dr. Rashid Ahmad Jullundhari, JJ.
NAWAB--Petitioner
versus
STATE--Respondent
Jail Petition No. 44(s) of 2003, decided on 1.12.2005.
(On appeal from the judgment dated 24.9.2003 passed by the Federal Shariat Court in Criminal Appeal No. 59-K of 2001 and Murder Reference No.12/I 2001).
(i) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence of death, assailed--Appreciation of evidence--Ocular, straight forward and consistent testimony furnished by complainant and her sister was found to be trustworthy by trial Court and Appellate Court--No inherent defect or material lacuna in evidence of both witnesses whose presence at place of occurrence was established was pointed out--Prosecution has fully proved its case by producing cogent and convincing evidence extent that accused had fired at deceased--Recovery of weapon of offence with one empty cartridge stood established prompt recording of statement of victim lady u/S. 164 Cr.P.C. in which she had implicated accused, was corroborated by Magistrate who had recorded the same--Case of murder against accused thus, stood established. [Pp. 808 & 809] A
(ii) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Acquittal of co-accused--Effect--Case of accused and co-accused who was acquitted, was distinguishable and was not at par with him--Accused had caused fatal fire-arm injury to deceased while acquitted co-accused was empty handed, therefore, accused could not claim that his case was at par with acquitted co-accused and he was also not entitled to mitigation of sentence of death as he had caused death of deceased by his callous and brutal act--No illegality and material irregularity having been pointed out in impugned judgment, Leave to appeal was refused. [P. 809] B
Sardar Muhammad Siddique Khan, ASC for Petitioner.
Nemo for Respondent.
Date of hearing : 1.12.2005.
Judgment
Dr. Allama Khalid Mahmud Member.--Petitioner seeks leave to appeal against the judgment dated 24.9.2003 of learned Federal Shariat Court, whereby conviction and sentence under Section 302(b) PPC of death awarded to him was maintained whereas co-convict Muhammad was acquitted under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as `the Ordinance') but was convicted to 12 years R.I. under Section 18 of the Ordinance with benefit of Section 382(B) Cr.P.C.
Briefly, stated, the facts of the case are that on 23.10.1996 at 2.30 p.m. complainant Mst. Suhni (PW-5) lodged FIR at Police Station Kandiaro, District Naushahro Feroze, alleging therein that two days prior to the occurrence she alongwith her husband Amir Bakhsh and her sister Mst. Fatul went for Ziarat to Sehvan Sharif and after staying there two nights, they left for their village Ranipur by bus. However, when they reached at Kandiaro they were forcibly deboarded from the bus due to shortage of fare. Her husband went to the town for begging to arrange for the fare. There petitioner Nawab met them and he took them to his village enabling them to spend the night there. The complainant party stayed in the Otak of Sarwar Nangraj to spend a night. It was at mid-night time Mst. Fatul PW-6 raised cries on which complainant and her husband woke up and saw that petitioner armed with gun and co-convict Muhammad were dragging Mst. Fatul out of Otak for committing zina with her. The complainant's husband intervened on which petitioner fired a shot hitting him on his head. The deceased fell down on the ground and died at the spot. Petitioner and co-convict ran away from the spot.
Petitioner and co-convicted Muhammad were arrested on 23.10.1996 and on the same day the petitioner got recovered .12 bore gun and two live cartridges.
On conclusion of investigation, both of them were sent up to face trial.
At the trial, the prosecution examined as many as 9 witnesses.
On autopsy, Dr. Muhammad Malook (PW-2) found the following injuries on the person of deceased Amir Bukhsh:
(i) Fire-arm wound of size 12 x 10 cm removing left partial and occipital bone alongwith brain matter on left side with blackening around the wound and on front of face.
PW-8 Lady Dr. Tasleem Memon on 23.10.1996 medically examined Mst. Fatul and opined that there was no sign of fresh coitus present, therefore, she belied the version of Mst. Fatul that she had been subjected to zina by co-convicted Muhammad.
Petitioner and co-convict in their respective statements recorded under Section 342 Cr.P.C. denied the case of the prosecution and claimed innocence. They neither examined themselves on Oath as required under Section 340(2) Cr.P.C. nor led any evidence in defence.
On the conclusion of trial, petitioner was convicted under Section 302(b) PPC and sentenced to death with fine of Rs. 30,000/- to be paid to the legal heirs of the deceased Amir Bakhsh under Section 544-A Cr.P.C. or in default to suffer six months. However, co-convict Muhammad was convicted under Section 10(3) of the Ordinance and was sentenced to 25 years R.I as Tazir.
Being aggrieved, petitioner and co-convict challenged the judgment in appeal before learned Federal Shariat Court, which was disposed as stated above.
We have heard Sardar Muhammad Siddique Khan, learned ASC for petitioner and have gone through the record and the proceedings of the case in minute particulars.
It is mainly contended by the learned counsel for petitioner that the impugned judgement is erroneous, untenable in law, unjust and is based on non-appreciation of evidence. He maintained that the ocular evidence is contradicted by the medical evidence and suffers from material discrepancies. He pointed out that the case of the prosecution is based on interested evidence, as such, it required independent corroboration which is lacking in this case.
The ocular straightforward and consistent testimony furnished by complainant Mst. Suhni (PW-5) and Mst. Fatul (PW-6) was found to be trustworthy by the trial Court as well as the First Appellate Court. There appears to be no inherent defect or material lacuna in the evidence of both the witnesses whose presence at the site has been established beyond any reasonable shadow of doubt. It is true that both PWs are close relatives of the deceased but fact of the matter remains that mere relationship of the witnesses with the deceased per se would not render them as interested or partisan witnesses. The prosecution has fully proved its case by producing cogent and convincing evidence to the extent that it was petitioner who fired at the deceased. Though the witnesses were cross-examined yet their evidence was not shattered at all. Both the eye-witnesses have categorically stated in their statements that the deceased sustained fire-arm injury. However, it is proved from the record that at the time of incident co-convict Muhammad was empty handed, therefore, the learned trial Court neither acted illegally nor arbitrarily in extending the benefit of doubt to him. The above ocular version is fully corroborated by medical evidence according to which death of Amir Bakhsh occurred due to fire-arm injury caused by petitioner. Irrespective of the same, recovery of one empty cartridge from Otak of Gul Hassan and Sarwar Nangraj and a Double Barrel gun with two cartridges further strengthens the case of prosecution. Prompt recording of 164 Cr.P.C. statement of victim Mst. Fatul in which she implicated the petitioner has been supported by PW4 Khair Muhammad the Magistrate. The factor that petitioner was a Tonga driver and took away to Otak the deceased, victim and Mst. Suhni on the pretext that there was no Musafir Khana and subsequently recovery of dead body from there is also a strong reason to believe that he has committed the crime. All the above circumstantial piece of evidence coupled with ocular testimony was sufficient to base conviction against petitioner. At any event, case of petitioner is distinguishable and is not at par with that of co-convict. The callous and brutal manner in which petitioner acted in this case and caused fatal fire-arm injury, in our view, does not justify mitigation of sentence. In the event of proof of charge of qatl-e-amd normal penalty under the law is death and exceptional circumstances must be shown for taking a lenient view and for the award of lesser penalty, which do not appear to exist on the face of record. The learned counsel for petitioner has failed to point out any illegality or irregularity in the impugned judgment warranting interference by this Court.
For what has been stated above, we do not find any reason to interfere with the concurrent findings of two Courts below. Accordingly, the petition being devoid of force is dismissed and leave to appeal refused.
(Aziz Ahmad Tarar) Leave refused.
PLJ 2006 SC 809 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ.
SULEMAN--Petitioner
versus
STATE--Respondent
Jail Petition No. 219 of 2004, decided on 8.11.2005.
(On appeal from the judgment dated 27.4.2004 of Peshawar High Court, Peshawar passed in Crl. J.A. No. 835/03)
Anti Terrorism Act, 1997 (XXVII of 1997)--
----S. 7(a)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence of death as Tazir, on charge of murder, assailed--Appreciation of evidence--Accused in his confessional statement before judicial Magistrate had categorically admitted to have killed deceased on instigation of co-accused as they promised to pay him specified amount, if any one of sons of complainant was brought before them either alive or dead--Entire story disclosed by accused himself was voluntarily without any duress before judicial Magistrate/Civil Judge--Judicial confession alone if found true, convincing and made voluntarily without any duress or coercion could be basis for conviction--Convict/accused having confessed his guilt before judicial Magistrate which was otherwise corroborated by extra-judicial confession would not justify mitigation of sentence of death especially in absence of any misreading, non-reading or illegality in impugned judgment--Judgment of High Court being based on valid and convincing evidence does not justify interference--Leave to appeal was thus, refused. [Pp. 811 & 812] A
Sardar Muhammad Siddique Khan, ASC for Petitioner.
Pir Liaquat Ali Shah, Addl. A.G. NWFP for State.
Mr. Sanaullah Zahid, ASC for Complainant.
Date of hearing : 8.11.2005.
Judgment
Abdul Hameed Dogar, J.--Petitioner Suleman seeks leave to appeal against judgment dated 27.4.2004 passed by a learned Division Bench of Peshawar High Court, Peshawar, whereby Criminal Jail Appeal No. 835 of 2003 filed by him was dismissed and sentence of death awarded by the trial Court was maintained. Murder Reference No. 44 of 2003 was also answered in affirmative.
Briefly, stated the facts leading to the filing of instant petition are that on 30.5.2003 minor son of Sharifullah complainant, namely, Saddam Hussain aged about 7/8 years after taking his lunch went outside the house and till evening did not come back, thus complainant alongwith the co-villagers started the search of his son but in vain. On the same day the complainant, reported the matter to the police about missing of his son. On 31.5.2003 Police in the company of complainant while searching the boy in the village when reached near the house of Rehmat Ali, they suspected a septic tank, over with the cover was laying disorderly. The same was removed and a gunny bag of green colour was found inside the said tank. On opening the bag, the dead body of minor boy Saddam Hussain was found. A piece of cloth was wrapped around his neck. On the statement of complainant case under Sections 302/364-A/109/34 PPC was registered vide FIR No. 90 at Police Station Alpuri, District Shangla.
Petitioner was arrested on 1.6.2003 and on the following day i.e. on 2.6.2003 he made confessional statement before Syed Ali Raza, Civil Judge (PW-7) wherein he confessed the guilt and admitted to have killed minor boy Saddam Hussain on the instigation of Dilawar Khan and Muhammad Ismail as they promised to pay him Rs. 200,000/-, if any one of among the sons of complainant is brought before them either alive or dead.
After usual investigation petitioner and Dilawar Khan were sent up to face trial before Judge, Anti Terrorism Court, Malakand Division. However, accused Muhammad Ismail could not be arrested and was declared proclaimed offender.
The prosecution in order to prove its case examined as many as 12 witnesses.
In their respective statements recorded under Section 342 Cr.P.C. petitioner and his co-accused Dilawar denied the case of prosecution and claimed innocence. However, they neither examined themselves on Oath as required under Section 340(2) Cr.P.C. nor led any evidence in defence.
On conclusion of trial, petitioner was convicted under Section 7(a) of the Anti Terrorism Act, 1997 (hereinafter referred to as `the Act') and sentenced to death as Tazir whereas his co-accused Dilawar was sentenced to imprisonment for life with a fine of Rs. 2,00,000/- under Section 109 PPC read with Section 7(a) of the Act or in default to suffer two years R.I. more. It was directed that fine if realized shall be given to the legal heirs of the deceased child.
We have heard Sardar Muhammad Siddique Khan, learned counsel for the petitioner, Pir Liaquat Ali Khan, Addl. AG NWFP for State and Mr. Sanaullah Zahid, learned counsel for the complainant at length and have gone through the record and proceedings of the case in minute particulars.
At the very outset learned counsel for the petitioner stated that petitioner confessed the guilt voluntarily on the next day of his arrest and also made extra-judicial confession before Sardar Zeb (PW-2). Learned counsel further stated that the deposition of PW-2 Sardar Zeb is not free from doubt as being a practicing lawyer he should have been in the District Courts at Shangla at the relevant time and not at the place of occurrence. He, however, urged for reduction of the sentence as the motive is not proved which is sufficient mitigating circumstance to reduce the sentence of petitioner.
Learned counsel appearing for the State and complainant while supporting the impugned judgment contended that a minor boy of 7/8 years has been killed in a gruesome manner, therefore, petitioner does not deserve any leniency in the sentence.
We are not persuaded with the contentions of the learned counsel for the petitioner mainly for the reason that petitioner in his confessional statement before Judicial Magistrate (PW-7) has categorically admitted to have killed the deceased on the instigation of Dilawar Khan and Muhammad Ismail as they promised to pay him Rs. 2,00,000/-, if any one of among the sons of complainant is brought before them either alive or dead. During investigation, the petitioner led the police at the site where he had taken the deceased to his house and then he pointed out the room of his house where he had kept the deceased on a double bed lying over there. He also got recovered a pair of shoes of deceased from the bathroom of his room. He also got recovered silver bowl having lime stains of bluish colour. The entire story has been disclosed by petitioner himself voluntarily and without any duress before PW-7 Syed Ali Raza, Civil Judge. It is well-settled principle of law that the judicial confession alone if it is found true, convincing and made voluntarily without any duress or coercion, the same can be basis for conviction. In this case, it is on his own that petitioner confessed his guilt and there is no reason to disbelieve the same which even otherwise is corroborated by his extra-judicial confession made before PW-2 Sardar Zeb. Learned counsel for the petitioner has neither pointed out any extenuating circumstance to reduce the sentence nor referred any misreading, nor-reading or illegality in the impugned judgment.
For what has been discussed above, we are of the considered view that the petition being devoid of force is dismissed and leave to appeal refused.
(Aziz Ahmad Tarar) Leave refused.
PLJ 2006 SC 812 [Shariat Appellate Jurisdiction]
Present: Abdul Hameed Dogar, Chairman; Mian Shakirullah Jan, Raja Fayyaz Ahmed, Dr. Allama Khalid Mahmud and Dr. Rashid Ahmed Jullundhari, JJ.
MUZAMMAL alias TIDDI and another--Appellants
versus
STATE--Respondent
Crl. A. No. 25(s) of 2003, decided on 15.11.2005.
(On appeal from the judgment dated 27.2.2002 of the Federal Shariat Court, Camp at Lahore, passed in Crl. A. Nos. 319-L, 21-L and 22-L of 2001).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 458 & 395--Constitution of Pakistan, 1973, Art. 203-D--Conviction and sentence of imprisonment awarded to appellants, assailed--Appreciation of evidence--Case of accused was distinguishable with case of acquitted accused in as much as they were neither put in identification test nor any looted property was recovered from acquitted accused--Sufficient evidence to justify conviction was however, available on record against accused--Irrespective of such evidence looted property worth substantial value was also recovered from them--Accused persons failed to bring on record any animosity about their false implication either on part of complainant or witnesses--Accused did not even furnish any convincing and cogent explanation for their implication in present case--Impugned judgment of Federal Shariat Court being based on valid and sound reasons and being entirely in consonance with law was not open to interference. [Pp. 814 & 815] A
Nemo for Appellants.
Nemo for Respondent.
Date of hearing : 15.11.2005.
Judgment
Abdul Hameed Dogar, Chairman.--This appeal with leave of this Court is directed against judgment dated 27.2.2002 of the learned Federal Shariat Court, Camp at Lahore, whereby Criminal Appeal Nos. 319-L, 21-L and 22-L of 2001 filed by the appellants were dismissed while reducing their sentence under Section 458 PPC to six years and under Section 395 PPC to seven years with fine.
Briefly, stated the facts, according to the prosecution are that Muhammad Zahid complainant had taken Siddique Corporation Oil Mills on lease from Mst. Farhat Begum. He also kept an iron safe in the Mills in which cash, prize bonds and ornaments had been placed. On 22.10.1996 at about 8.00 p.m. the complainant left for home after locking the safe while leaving Muhammad Taj and Muhammad Yousaf, Labour Contractor PWs for looking after the Mills. Besides them, 11/12 other persons were present there who were working there. At about 4.15 a.m. Muhammad Yousaf Contractor informed him on telephone that five persons one of them aged 20/25 years holding rifle, second aged 18/20 years having khanjar, two other persons armed with pistols and one person armed with an iron rod by scaling over the wall had entered in the Mills. Out of them three entered in the office and threatened Muhammad Yousaf and Muhammad Taj PWs not to raise noise and hand over keys of the safe to them otherwise they will be done to death. They told them that the owner had taken the keys with him, on which they had broken the iron safe and removed prize bonds, ornaments and cash and ran away by scaling over the wall. Complainant came to the Mills and found that a sum of Rs. 9,60,000/- in cash, prize bonds of Rs. 1000/- denomination worth Rs. 8,30,000/- and ornaments weighing 20 tolas, valuing Rs. 1,10,000/- were missing.
On 2.1.1997 petitioners alongwith their, namely, co-accused were arrested. On 9.1.1997 during interrogation, petitioner Abdul Razzaq got recovered a sum of Rs. 121,000/- which were taken into possession. On 15.1.1997 he also led to the recovery of pistol alongwith two bullets from a room of his house. On 9.1.1997 petitioner Muzammal got recovered a sum of Rs. 25,000/- from a room of his house.
Charge under Sections 458/148/149 PPC and Section 17 Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was framed against the petitioners and their co-accused to which they pleaded not guilty and claimed trial.
At the trial, the prosecution in order to prove the charge and substantiate the allegations leveled against them produced 15 witnesses in all.
In their statements recorded under Section 342 Cr.P.C. petitioners and their co-accused denied the case of prosecution and claimed innocence. However, they neither examined themselves on Oath as required under Section 340(2) Cr.P.C. nor led any evidence in defence.
The learned trial Court vide judgment dated 29.9.2001 acquitted Ali Asghar, Abdul Shakoor and Abdul Ghafoor while petitioners and their co-accused Arshad alias Achian, Muhammad Riaz alias Raju and Shahid alias Shada were convicted and sentenced as under:
(i) U/S 458-PPC Each was sentenced to undergo R.I. for seven years plus to pay a fine of Rs. 10,000/- in default whereof to undergo S.I. for one year.
(ii) U/S 395 PPC Each was sentenced to undergo R.I. for 8 years plus to pay a fine of Rs. 50,000/- each, in default whereof to undergo S.I. for 1« year.
On appeal, the learned Federal Shariat Court vide impugned judgment while acquitting co-accused Shahid alias Shada, Riaz alias Raju and Arshad alias Achian from the charges reduced the substantive sentence of both petitioners under Section 395 PPC from eight years to seven years R.I. each with fine of Rs. 30,000/- each and under Section 458 PPC from seven years to six years each. However, sentence of fine was maintained.
Leave to appeal was granted for reappraisal of the circumstantial evidence on which the conviction of the petitioners rests. The petitioners were not put to identification parade like their acquitted co-accused and PW Muhammad Saleem, who had seen the petitioner Muzammal near the place of occurrence armed with a pistol and the petitioner Abdul Razzaq landing in the street by scaling over the wall of the Factory has not been believed qua the acquitted accused Arshad. Besides, implicit reliance has been placed on the incriminating recoveries, namely, pistol which was not used and some currency notes which apparently do not bear any specific mark of identification."
We have gone through the impugned judgments of both the Courts below and do not find any misreading or non-reading of evidence. The case of the appellants is distinguishable with the case of acquitted accused Ali Asghar, Abdul Shakoor, Abdul Ghafoor, Arshad alias Achian Shahid alias Shada, Arshad alias Achian and Muhammad Riaz alias Raju as they were neither put in identification test nor any looted property was recovered from them whereas there is sufficient evidence against the petitioners furnished by PW Muhammad Saleem. According to him, appellant Muzammal was seen near the place of occurrence armed with pistol whereas Abdul Razzaq was nominated by complainant and also that he was one of those persons who were seen landing in the street by scaling over the wall of the factory. Irrespective of above, the looted property worth substantial value was also recovered from them.
Above all, the petitioners have failed to bring on record any animosity about their false implication either on the part of complainant or the witnesses. Even the petitioners did not furnish any convincing and cogent explanation for their implication in the case.
For what has been discussed above, we are of the considered opinion that the impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither, there is any misreading or non-reading of material evidence nor misconstruction of facts and law. Resultantly, the appeal being devoid of force is dismissed.
(Aziz Ahmad Tarar) Appeal dismissed.
PLJ 2006 SC 815 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry C.J.; Muhammad Nawaz Abbasi and Tassaduq Hussain Jillani, JJ.
KHURRAM MALIK and another--Appellants
versus
STATE and another--Respondents
Crl. A. Nos. 122 & 123 of 2000, decided on 7.12.2005.
(On appeal from the judgment dated 23.12.1999 of Peshawar High Court, Abbottabad Bench in Crl. A. No. 13 of 1999 and M.R. No. 3 of 1999).
(i) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Constitution of Pakistan, 1973, Art. 185--Sentence of death awarded to accused by Trial Court modified to life imprisonment by High Court--Legality--Trial Court and High Court were unanimous to the extent that accused had committed offence of murder--Scrutiny of evidence also indicated that offence of murder was in fact committed by accused--Prosecution on basis of circumstantial evidence has established presence of deceased with accused in the morning time when both of them left together--Recovery of different parts of human body on pointation of accused was identified to be that of the deceased--Medical evidence alongwith other incriminating pieces of evidence would lead to presumption that accused is guilty for commission of offence--Most important piece of evidence against accused in his confessional statement which he got recorded before judicial Magistrate--Accused in his confessional statement had admitted presence of two ladies at the spot when he had committed murder--On the same day confessional statement of ladies was recorded wherein they admitted that accused had committed murder of deceased--Confessional statement of accused having been recorded immediately after his arrest was voluntary and the same was corroborated by confessional statements of ladies concerned which can be considered against accused in terms of Art. 43 of Qanun-e-Shahadat Order, 1984--In presence of such strong circumstantial evidence mitigation of sentence of death to that of life imprisonment without assigning any reason was not warranted. [Pp. 820, 821, 822 & 823] A, B, C & D
(ii) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Motive--While determining and awarding adequate sentence to accused involved in capital offence existence of motive is not necessary. [P. 823] E
(iii) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Constitution of Pakistan 1973, Art. 185--Reduction of sentence of death to that of life-imprisonment--Legality--Scrutiny of evidence would indicate that accused after committing murder of accused had in a most brutal and desperate manner cut into pieces the dead body of deceased and threw parts thereof to different places--No mitigating circumstances thus, existed warranting lesser punishment--Besides, accused having taken plea to claim lesser punishment, burden was on him to established the same which he failed to discharge. [P. 824] F
(iv) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Constitution of Pakistan, 1973, Art. 185--Plea of expectancy of life--Entitlement--Petitioner's plea that he had attained expectancy of life in as much as his appeal was being disposed of after a considerable time and that on that basis his request for lesser punishment be considered, was not a valid ground for awarding lesser punishment--Sentence of life imprisonment was converted to that of death. [P. 824] G
PLD 1994 SC 178; 1995 SCMR 1776; 2003 SCMR 884; PLD 1996 SC 1; PLD 2002 SC 558; PLD 1995 SC 1 and 1995 SCMR 1190, ref.
Mr. Muhammad Munir Peracha, ASC & Ch. Akhtar Ali, AOR for Appellant (in Crl. A. No. 122/2000).
Mr. Muhammad Saeed, Addl. A.G. NWFP & Mr. Mushtaq Ahmed Tahir Kheli, ASC for Respondents (in Crl. A. No. 122/2000).
Mr. Mushtaq Ahmad Tahir Kheli, ASC for Appellant (in Crl. A. NO. 123/2000).
Mr. Muhammad Munir Peracha, ASC & Ch. Akhtar Ali, AOR for Respondents (in Crl. A. No. 123/2000).
Date of hearing : 7.12.2005.
Order
Iftikhar Muhammad Chaudhry, CJ.--By this common judgment we intend to dispose of both the listed appeals as they have arisen out of the same judgment of the Peshawar High Court, Abbottabad Bench dated 23.12.1999 passed in Cr. A. No. 13 of 1999 and Murder Reference No. 3 of 1999.
Precisely stating facts of the case are that Haji Muhammad Nazir appellant in CA 123/2000 lodged a report on 24.11.98 about missing of his maternal nephew namely Muhammad Ejaz son of Muhammad Riaz aged about 19/20 years, who was the student of 1st Year of FA in Government Post Graduate College, Mansehra. He stated that Ijaz Ahmad set out for the college on 24.11.98 but did not return home till evening. In the process of search, Zulfiqar Ahmed, son of the maternal aunt of Ejaz, was told by a shopkeeper namely Noman (PW-10) that Ejaz had come to his shop in the morning left his note books with him and then accompanied accused Khurram Malik. Zulfiqar still continued his search and met Ismail (PW-2) and on his enquiry Ismail told him that he saw the deceased sitting in the company of appellant in a vacant plot. On this Zulfiqar Ahmed and Ismail went to the house of accused Khurram Malik, who on questioning, replied that Ijaz (deceased) was in his company in the morning but thereafter he did not know about his whereabouts.
On 25.11.1998 Khawaja Muhammad (PW-5) found a sac near Ghazo Mor containing something and a human leg without foot at some distance from the sac. This fact was brought to the notice of Adalat Shah, ASHO, who visited the spot alongwith DSP and collected the limbs and cloths and registered a case vide FIR 511 dt. 25.11.1998. He prepared injury sheet (Ex. PW-20/1) and inquest Report (Ex. PW/4) and sent them to DHQ Hospital Mansehra for Post Mortem where Nazir complainant and mother of the deceased identified the parts to be of deceased Ijaz. Adalat Shah, ASHO recovered remaining parts of the body beneath a bridge and took them into possession. On 26.11.1998, Jaffar Shah, SHO arrested accused Khurram Malik in the light of the police statements of Ismail (PW-2) and Noman (PW-10) who had last seen the deceased in the company of the accused. On interrogation, Khurram Malik, accused disclosed the commission of offence. In this respect he pointed out the house where he had killed the deceased and a well where he had thrown the parts of the body and the place where he had concealed revolver (Ex. PB/6) with which he had killed the deceased. He later on made a statement u/S. 164 Cr.P.C. before Senior Civil Judge/Magistrate wherein he made fully confession of his crime. The gist of his confession is to the effect that he was in love with Mst. Nazia daughter of Ghulam Rasool. Since the deceased was also on visiting terms with Mst. Nazia, which he had not like, and so made his mind to do away with the deceased. On 24.11.1998 at morning time, he met deceased and asked him to got together to the house of Mst. Nazia. He then went to his house and took the revolver of his father as it was a good chance for him to get rid of the deceased. On 27.11.1998 accused Khurram Malik while in police custody, also led the police party to the house of one Ghulam Rasool, situated in Mohallah Dab No. 2 and pointed out the room located on its upper storey where he had killed the deceased by firing at him with the revolver and thereafter cut his dead body into pieces which a Churri and packed them into bags for disposal. During the course of investigation, the offence was found to have been committed within the jurisdiction of P.S. City, hence another FIR 1020 dated 28.11.98 was registered under Section 302/201/202 PPC at PS City Mansehra. After conclusion of the necessary investigations the accused Khurram Malik was sent up to face trial u/S. 302 PPC and Sections 201/202/34 PPC before the Court of Sessions Judge, Mansehra where he did not plead guilty to the charge and claimed trial. The Prosecution in order to substantiate accusation against the accused produced as many as 22 witnesses whereafter the statement of accused u/S. 342 Cr.P.C. was recorded. However he did not opt to make his statement u/S. 340(2) Cr.P.C. He also did not produce any one in his defence.
3-A. The learned Sessions Judge Mansehra, after hearing both the sides, evaluating the entire evidence found the accused guilty of the offence u/S. 302(b) PPC and vide his judgment dated 16.3.1999 sentenced him to death as Tazir with direction that he would pay Rs. 30,000/- as compensation to the LRs. of the deceased under Section 544-A Cr.P.C. or suffer R.I. for six months in case of default.
On appeal filed by the convict learned High Court vide judgment dated 23.12.1999 partly allowed his appeal by modifying his sentence of death to that of life imprisonment and increased the amount of compensation from Rs. 30,000/- to Rs. 100,000/- to be paid to the LRs of the deceased.
Against the above judgment Khurram Malik/accused filed Appeal No. 122/2000 for acquittal of the charge while Haji Nazir filed Appeal No. 123/2000 for enhancement of sentence of the accused.
Learned counsel for convict/appellant contended that prosecution has miserably failed to substantiate accusation against him. The evidence brought on record is not confidence inspiring as according to him in the cases where conviction is based alone on circumstantial evidence it becomes the duty of the Court to scrutinize the evidence carefully because in such like cases the element of false involvement of innocent person cannot be over-ruled. He further contended that the High Court being mindful of these facts awarded lesser sentence to the convict although he was entitled for acquittal therefore, he prayed that on accepting the appeal the convict may be exampted of the charge.
On the other hand learned counsel appearing on behalf of the complainant contended that in presence of overwhelming strong circumstantial evidence learned High Court erred in law in reducing the sentence of the convict. He explained that the circumstances proved on record by the prosecution, if are put together sequence-wise no other conclusion can be drawn except that it was the convict who committed brutal murder of the deceased. He further stated that the convict is a desperate criminal as it is evident from the manner in which he committed the crime i.e. after killing the deceased, Ijaz @ Goga aged about 18/19 years by a shot of fire. He cut into pieces his dead body and had thrown them in different places therefore, lenient treatment extended to him by the Appellate Court warrants interference by this Court in the interest of justice and to ensure that in such like cases an exemplary punishment is awarded which would not only meet the ends of justice but would also be detterence for life-minded persons.
We have heard learned counsel for both the sides and have also gone through the available record carefully. A perusal of the prosecution case indicates that the convict killed the deceased in the house of Mst. Nazia, a lady with whom both of them had fallen into love. It seems that convict/appellant, to achieve the nefarious goal had planed the murder of his rival/competitor as while leaving the house he had picked up his revolver and while sitting alongwith the deceased and Mst. Nazia, created an occasion for entangling himself with the deceased and on having succeeded in doing so, availed the chance promptly to remove the deceased from his way as he fired on his skull, resulting in brain damage and causing instantaneous death. The prosecution version also depicts his desperateness as after the commission of the crime he went to Bazaar from where he purchased a knife and on coming back cut his dead body into pieces and managed to throw the same at different places recovery of which was affected by the police later on, at his pointation. It is a case in which prosecution has entirely relied upon circumstantial evidence including the statements of PWs Muhammad Ismail and Noman. Scrutiny of their evidence leads to believe their version to be correct and true. Both of them had seen the accused in the company of the convict, Khurram Malik PW(10) Noman had also testified that accused Khurram Malik on the day of incident i.e. 24th November 1998 at about 9:00 a.m came to his shop and left his two note-books with him saying that he would get them back in the evening thereafter the deceased and accused proceeded towards the street which is leading downward beside the Ice Factory. Both the witnesses had supported the version of each others. From their statements, prosecution had established the presence of deceased with the accused in the morning time when both of them left together. The company of both the persons with each other was not for a noble cause but for an anti-social activity as they had gone to visit Mst. Nazia with whom both of them were carrying on.
Dead body of the deceased of Ijaz @ Goga was found in a dried well lying into different pieces. Though it was difficult to identify the pieces of the dead body, to be of the deceased but when they were brought to District Headquarter, Mansehra on 25th November 1998, Muhammad Nazir, complainant and the sister of mother of the deceased on having seen the cloths i.e. Shalwar Qameez pullover etc. identified that part of the human body were of the deceased Ijaz. The recovered parts of the human body i.e. lower portion of the trunk from the umblicus down to buttock and perimeum, Anus, secotum and penis intact were subjected to postmortem on by PW-11 Dr. Niaz Muhammad who vide report dated 27th November 1998 expressed his opinion as follows:--
"The cause of death is fire-arm injury to skull resulting in brain damage and death. A plastic bag and one bullet recovered from the body weighing 2 grams and 8 grains, sealed in bottle and handed over to the police. Time between injury and death, sudden and between death and postmortem examination within three days. The P.M. report is Ex. PW/2."
"He was in love with Mst. Nazia daughter of Ghulam Rasool co-accused. The deceased was also on visiting terms with her which he did not like and so decided to do away with him. On 24th November 1998 at morning time he met the deceased and asked him to go together to the house of Mst. Nazia. Considering it an appropriate chance to get rid of the deceased, he went back to his house and brought the revolver of his father. Deceased left his note books in the shop of Noman, PW-10 on reaching the house of Mst. Nazia they all three sat down in the room of the house. He asked the deceased as to why he visits the house of Mst. Nazia. On this, convict replied that he visits the house of Nazia as he is in love with her but Nazia stated that she loves the deceased. On this he got a chance and fired on the deceased who got injured and fell down. He threatened Nazia and her mother not to disclose the incident to any body otherwise they would too be killed. He locked the door of the house and purchased a churri from a shopkeeper at Shinikiari Road for Rs. 20/- and a rope. He got sharpened the Churri from another shop and came to the house where incident took place and cut the dead body into pieces and put them in a plastic bag. He also took the severed head, hands and feet in separate bag and threw them in a well, situated in Mohallah Neelan thereafter he took the remaining parts in suzuki carry and threw them in Changa on two different places. After arrest, he pointed out the places to the police from where parts of the body were recovered. The revolver was also recovered from his house at his pointation. He had thrown the Churri in a well in the office Aurat Foundation, Mansehra.
Although PW-Sajjad Anwar Khan, Senior Civil Judge/Judicial Mansehra who recorded the confession of the accused, was put to cross-examination at length but without any substance. Thus confessional statement which was recorded on the following day of his arrest, being true voluntarily furnishes most important piece of evidence."
It is to be noted that voluntariness of a confessional statement u/S. 164 Cr.P.C. of an accused can be adjudged if it is recorded without unexplained delay after his arrest. In instant case, convict got recorded his statement on the following day of his arrest but in Court proceedings had denied recording of confession in statement u/S. 342 Cr.P.C. alongwith recovery of incriminating articles but as it has been stated herein that the recovery of incriminating evidence has been duly established against him and as far confessional statement is concerned, it also gets strong corroboration from the same. Therefore, without any hesitation it can be used against the accused. It may be noted that Mst. Nazia and Amrezan in their confessional statements had also not denied the happening of the incident therefore, their statements can also be considered as circumstance against the convict in terms of Article 43 of the Qanoon-e-Shahadat Order, 1984 which envisages that when more persons than one are being tried jointly for the same offence and confession made by one of such persons is proved, the Court may take into consideration the such confession as circumstantial evidence against such other person.
Learned counsel for the convict state that in the instant case, prosecution as failed to establish motive because it was not set up in FIR and subsequently convict committed the crime on account of the rivalry with the deceased who was also carrying on with the same girl with whom latter had also fallen into love, therefore, the conviction of life imprisonment awarded to him may be maintained. The arguments so put forward, vehemently opposed by the other side. It is to be noted that in the instant case appellate Court had agreed with the findings recorded by the trial Court concerning the commission of offence by the convict but had expressed its reservation only on the quantum of the sentence. Undoubtedly the learned appellate Court is legally empowered to record its own findings but subject to furnishing the reply of the reasons advanced by the trial Court for the purpose of not awarding normal penalty of death to an accused u/S. 302 PPC, as it has been held in the case of Abdul Subhan vs. Rahim Bukhsh & others (PLD 1994 SC 178) wherein it has been observed:
The First Appellate Court while disagreeing with the conclusion of the trial Court, on the point of fact, will have to take into account the reasons advanced by the Trial Court and if it disagrees with the reasoning of the trial Court, it must give its own reasoning for such disagreement which should proceed on some logical basis."
Admittedly the learned High Court reappraised the evidence in its own manner and endorsed the findings of the trial Court so far it relates to the happening of the incident is concerned but differed on the question of awarding of sentence, without assigning any reason. Whereas the learned trial Court had advanced the strong reasons in this behalf.
Now we advert towards the arguments of learned counsel for the convict with regard to the non-availability of the motive for the commission of offence. In this context it is to be borne in mind that motive is always known to the accused who commits the crime and there are cases like the one in hand where it is not possible to disclose the motive by the prosecution in First Information Report. As we have noticed in the instant case that the deceased Ijaz @ Goga and Khurram Malik were carrying on with the same girl and the latter had decided to get rid to him. This fact was only known to him therefore, to accomplish his object he killed him in the house of Mst. Nazia, thereafter being a highly desperate person, went to Bazar, purchased a churri and with it cut into pieces the dead body and packed the same in separate plastic bags and thrown them on different places. The police had registered FIR Ex. PA/2 on 25th November 1998, on receiving information that parts of a human body have been recovered. These parts of the body were taken to hospital and a case was registered. The complainant was not any of the relatives of the deceased, therefore for such reasons he was not in a position to disclose the motive which even otherwise was not possible to disclose because as affair of love could not be disclosed by the deceased to any of his relatives. By the time it is well settled that for determining and awarding adequate sentence to an accused involved in capital offence existence of motive is not necessary. Reference in this behalf may be made to Talib Hussain vs. State (1995 SCMR 1776) Muhammad Akbar and another vs. The State (PLD 2004 SC 44).
Learned counsel appearing for Nazir Ahmad, maternal uncle of the deceased, contended that prosecution had produced overwhelming incriminating evidence against the convict, therefore, in absence of any mitigating circumstance, he is liable for normal penalty of death, under the circumstances of the case and deserves no leniency on quantum of punishment.
On the other hand learned counsel for the convict was of the opinion that he is the first offender and at the time of offence he was riot, therefore, deserves leniency in awarding sentence to him.
On having taken into consideration the facts and circumstances of the case we have attended to this aspect of the case as well, carefully. In our independent appreciation of the evidence, which has been undertaken in the interest of justice we are of the opinion that the convict murdered the deceased in a most brutal and desperate manner. Inasmuch as after the commission of the crime be exhibited inhuman attitude by cutting into pieces the dead body of the deceased and throwing the same in different places, therefore, question for consideration, would be whether there are mitigating circumstances warranting lesser punishment to convict? A perusal of record has persuaded us to answer the query in negative. It is a cardinal principle of criminal administration of justice that if an accused takes a special plea to claim lesser punishment on the basis of particular facts and circumstances of the case burden lies upon him to establish the same, as it has been held in the case of Mandoos Khan vs. The State (2003 SCMR 884), Abdul Haque vs. The State (PLD 1996 SC 1). It is also to be noted that justice is not for one but is for all and while examining the case of convict, the Court owe a duty to the legal heirs/relatives of the convict and also to the society that justice should also be done with them as well, thus the sentence should be such which should serve as deterrent for the like minded persons as observed in the case of Muhammad Saleem vs. The State (PLD 2002 SC 558), State vs. Farhan Ali (PLD 1995 SC 1).
Learned counsel lastly contended that the convict has attained expectancy of life because the appeal is being disposed of after a considerable time therefore, keeping in view this angle, his request for lesser punishment may be considered. The arguments so raised by him is not available to him in view of the principle that per se expectancy of life is not a valid ground for awarding lesser punishment. (Moahzam Shah v. Mohsan Shah & another (1995 SCMR 1190).
Thus for the foregoing reasons, Criminal Appeal No. 122/2000 filed by convict Khurram Malik is dismissed whereas Criminal Appeal No. 123/2000 filed by Haji Nazir is allowed.
Herein above are the reasons of our short order which is reproduced herein below for convenience:--
"For the reasons, to be recorded later, Criminal Appeal No. 122/2000 filed by convict Khurram Malik is dismissed whereas Criminal Appeal No. 123/2000 filed by Haji Nazir is allowed as a consequence whereof while maintaining conviction u/S. 302(b) PPC awarded to Khurram Malik (convict) his sentence is enhanced to death with direction of payment of compensation of Rs. 30,000/- to the heirs of deceased Ijaz @ Goga if recovered as arrears of land revenue."
(Aziz Ahmad Tarar) Order accordingly.
PLJ 2006 SC 825 [Shariat Appellate Jurisdiction]
Present: Abdul Hameed Dogar, Chairman; Mian Shakirullah Jan, Raja FAyyaz Ahmed, Dr. Allama Khalid Mahmud & Dr. Rashid Ahmed Jullundhari, JJ.
ASIF and another--Appellants
versus
STATE--Respondent
Criminal Appeal No. 40(S) of 2003 and Jail Petition No. 18(S) of 2005, decided on 15.12.2005.
(On appeal from the judgment of the Federal Shariat Court, passed in Criminal Appeal No. ).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 377--Murder and unnatural offence--Conviction and sentence--Appreciation of evidence--Held: Besides ocular testimony of PWs, act of sodomy with 12 years old boy had also been proved by M.O.--Recovered Churri was opined by chemical examiner to be stained with human blood--Swabs taken out from the anus were proved to be stained with semens--Concurrent finding about commission of unnatural lust with the boy and then his brutal murder by cutting his throat with churri could not attract any leniency--Conviction & sentence maintained. [Pp. 827 & 828] A & B
Nemo for Appellants.
Raja Saeed Akram, Addl. A.G. Punjab for State.
Date of hearing : 15.12.2005.
Judgment
Justice Abdul Hameed Dogar, Chairman.--By this single judgment, we propose to dispose of Jail Petition No. 18(S) of 2005 filed by petitioner Dilawar Shafique and Criminal Appeal No. 40(S) of 2003 filed by appellant Asif.
Death sentence awarded to petitioner under Section 302(b) PPC was converted into imprisonment for life with a fine of Rs. 100,000/- to be paid to the legal heirs of the deceased whereas five years R.I. with fine of Rs. 20,000/- or in default to further undergo one year R.I. under Section 377 PPC with benefit of Section 382-B Cr.P.C.
Appellant Asif convicted under Section 302(b) PPC and sentenced to imprisonment for life with fine of Rs. 1,00,000/- to be paid to the legal heirs of deceased.
Also convicted under Section 377 PPC and sentenced to five years R.I. with fine of Rs. 20,000/- or in default one year R.I. with benefit of Section 382(B) Cr.P.C.
However, acquittal of respondents namely, Manzoor-ul-Hassan, Fayyaz Ahmed, Nisar Ahmad and Furrukh Iftikhar was maintained.
The case of prosecution in brief is that on 6.7.1998 at evening time complainant Muhammad Sarfraz alongwith his brother-in-law PW Muhammad Ashfaq was present in his house when petitioner Dilawar Shafique and appellant Asif came there and called his nephew Sohail and took him away. Sohail did not return, as such, complainant Muhammad Sarfraz alongwith PWs Muhammad Ashfaq and Ahmad Ali started his search and when they reached near the Poultry Farm of Ihsan Arian, they heard the noise from the nearby sugarcane field. They went there and on torch light saw Sohail lying in a water Khal. Petitioner Dilawar Shafique and appellant Asif were present there armed with churris alongwith acquitted accused, namely, Manzoor-ul-Hassan alias Mithu, Fayyaz and two unknown persons were standing who ran away on seen them coming. Sohail was found dead and his throat was completely cut with Sharp edged weapon and his shalwar was removed. It was stated that the deceased was enticed away with the intention of committing unnatural act and was subsequently done to death. The said case was reported at Police Station Dijkot, on 7.3.1998. During investigation, appellant Asif, petitioner Dilawar Shafique and acquitted accused were arrested and on completion of investigation, they all were sent up to face trial before the Court of learned Additional Sessions Judge, Faisalabad.
At the trial, the prosecution examined as many as ten witnesses.
On autopsy, PW-4 Dr. Liaqat Ali Rana, S.M.O. found the following injury on the persons of deceased:
"1. An incised wound 27 cm X 4 cm, into all soft Tissues cut upto cervical spine on front both sides of neck mid part."
Anal swabs were sent to the Chemical Examiner who reported the same to be stained with semen and on such information, the doctor declared that the sodomy had been committed with the deceased a boy of 12 years. The blood-stained churri was recovered at the pointation of petitioner Dilawar Shafique on 8.8.1998 which was also reported to be stained with human blood by the Chemical Examiner.
In their statement recorded under Section 342 Cr.P.C. petitioner Dilawar Shafique, appellant Asif and other acquitted accused defined the case of prosecution and claimed innocence. They neither examined themselves on Oath as required under Section 340(2) Cr.P.C. nor led any evidence in defence. However, petitioner Dilawar Shafique produced three DWs, namely, DW-1 Muhammad Basit Waheed, DW-2 Imran Iftikhar and DW-3 Muhammad Akram in his defence.
On the conclusion of trial, the trial Court acquitted accused Manzoor-ul-Hassan alias Mithu, Fayyaz Ahmad, Nisar Ahmad, Farrukh Iftikhar and appellant Asif from the charges whereas convicted petitioner Dilawar Shafique under Section 302(b) PPC as Tazir and sentenced to death with a fine of Rs. 100,000/- as compensation to the legal heirs of deceased.
Complainant Muhammad Sarfraz challenged the acquittal of all the acquitted accused whereas petitioner Dilawar Shafique challenged his conviction before the Federal Shariat Court which was disposed of by impugned judgment as stated above.
We have heard Raja Saeed Akram, learned Additional A.G. Punjab on behalf of State and have gone through the record and proceedings of the case in minute particulars as well as the judgment of both Courts below.
Raja Saeed Akram, learned Additional Advocate-General Punjab for the State has fully supported the impugned judgment and contended that the prosecution has brought on record ocular testimony of complainant Muhammad Sarfraz, PW(6) Muhammad Arshad and PW(8) Muhammad Ashfaq which is corroborated by medical evidence. Act of the commission of sodomy upon the person of deceased has also been supported by Medical Officer. Irrespective of above blood-stained churri was recovered from Dilwar Shafique petitioner which were opined by the Chemical Examiner to be stained with human blood. Even swabs taken out from the anus of the deceased was opined to be stained with semen. Accordingly, the learned Courts below have rightly held that deceased boy aged about 12 years was firstly subjected to unnatural lust and then killed with Churri so much so that the entire throat was cut. It shows that the deceased was done to death in a brutal manner for which appellant and petitioner could not deserve any leniency. The learned Federal Shariat Court has rightly converted the acquittal of appellant Asif into conviction and for that valid reasons have been advanced. Admittedly, acquittal of appellant Asif was not only perverse, arbitrary, foolish and capricious but also was based on misreading, non-reading and non-appraisal of evidence.
Accordingly, we do not find any force in the appeal as well as in the petition, thus the conviction and sentence awarded by the learned Federal Shariat Court are maintained. Hence appeal filed by Asif appellant being without substance is dismissed. Similarly petition of petitioner Dilawar Shafique is also dismissed and leave to appeal refused.
(Javed Rasool) Order accordingly.
PLJ 2006 SC 828 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar, Mian Shakirullah Jan and Raja Fayyaz Ahmed, JJ.
MUHAMMAD RAFIQ--Petitioner
versus
STATE--Respondent
Jail Petition No. 176 of 2004, decided on 29.11.2005.
(On appeal from the judgment dated 5.4.2002 of Lahore High Court, Rawalpindi Bench, passed in Crl. A. No. 192/03).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction & Sentence awarded against, petitioner assailed--Appreciation of evidence--Held: FIR was recorded by the deceased himself which was declared as dying declaration--Incident took place over a minor dispute between the parties--Ocular testimony was corroborated by medical evidence--Dying declaration was corroborated by the person who had recorded the statement of deceased--Prosecution proved its case with cogent, convincing and unshattered evidence--Concurrent finding having no illegality, misreading or non-reading of evidence--Conviction and sentence upheld. [P. 830] A, B & C
Mr. Rafaqat Hussain Shah, ASC for Petitioner.
Mr. Mahmood Ahmed Sheikh, ASC for State.
Date of hearing : 29.11.2005.
Judgment
Abdul Hameed Dogar, J.--Petitioner Muhammad Rafiq, seeks leave to appeal against the judgment dated 5.4.2004 of the learned Single Judge in Chambers of the Lahore High Court, Rawalpindi Bench, whereby Criminal Appeal No. 192 of 2003 filed by him was dismissed and his conviction under Section 302(b) PPC and sentence of imprisonment for life as Ta'zir with payment of fine of Rs. 50,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. or in default thereof to further undergo six months SI, awarded by the learned Sessions Judge, Jhelum were maintained. However, benefit of Section 382-B Cr.P.C. was extended to him.
Precisely, stated, the facts giving rise to the filing of instant petition are that on 17.6.2002 at about 7.00 p.m. when Adalat Khan deceased was returning his cattle towards the village and when he reached in the land of one Muhammad Hussain, petitioner asked him as to why he was not properly supervising the cattle and also abused the deceased. The deceased, also retaliated in the same manner, whereupon the petitioner inflicted three hatchet blows from its back side, to the deceased on different parts of the body. PWs, namely, Muhammad Rafiq and Muhammad Bilal got attracted at the spot and witnessed the same. Thereafter, the injured was shifted to the hospital where his statement to the above facts was recorded by Sarfraz Hussain, S.I. while in injured condition. However, on 18.6.2002, he was succumbed to the injuries in the hospital and a case under Section 302 PPC was registered at Police Station Domeli, District Jehlum. On 25.6.2002, the police arrested petitioner and during interrogation he got recovered hatchet from his house situated in village Dehra, District Jhelum.
After usual investigation, the petitioner was sent up to face the trial before the learned Sessions Judge, Jhelum.
The prosecution in order to prove its case examined as many as 11 witnesses.
In his statement recorded under Section 342 Cr.P.C. denied the case of prosecution and claimed innocence. He neither examined himself on Oath as required under Section 340(2) Cr.P.C. nor led any evidence in defence.
On conclusion of trial, petitioner was convicted and sentenced as stated above. Being aggrieved, petitioner challenged the judgment in appeal before the learned Lahore High Court, which was dismissed vide impugned judgment.
We have heard Mr. Rafaqat Hussain Shah, learned ASC for petitioner and Mr. Mahmood Ahmed Sheikh, learned ASC for the State and have gone through the record and the proceedings of the case in minute particulars.
It is mainly contended by the learned counsel for petitioner that the impugned judgment is erroneous, untenable in law and unjust. He maintained that the ocular evidence is contradicted by the medical evidence and suffers from material discrepancies. He contended that the dying declaration was not recorded in accordance with the rules on the subject which reduces its value to null and void. He pointed out that the case of prosecution is based on interested and inimical evidence, as such, it requires independent corroboration which is lacking in this case.
Learned State counsel supported the impugned judgment. He submitted that Muhammad Rafique and Muhammad Bilal PWs had given reasonable explanation for their presence at the spot; they had absolutely no motive to come forward as false witnesses against petitioner because there was no background of any previous enmity between the parties.
In this case eye-witness account was furnished by PW-6 Muhammad Rafique and PW-7 Muhammad Bilal irrespective of the fact that the FIR was recorded by the deceased himself, which was declared as dying declaration. The incident took place over a minor dispute between the parties. Ocular testimony, is also corroborated by the medical evidence furnished by PWs Dr. Riaz Ahmed and Dr. Faisal Mehmood. According to PW-2 Dr. Faisal Mehmud, Injury No. 2, which was caused upon cervical spine of neck, caused compression of cervical spinal card. The injury was ante-mortem and was caused by blunt weapon and in the opinion of doctor the same was sufficient to cause death in the ordinary course of nature. The dying declaration was further corroborated by Sarfraz Hussain, SI PW-10, who recorded his statement, while in an injured condition in the hospital. The ocular account was also found to be trustworthy by the trial Court as well as the Appellate Court. There appears to be no inherent defect or material lacuna in the evidence of both the witnesses whose presence at the site has been established beyond any reasonable shadow of doubt. It is true that PWs are related to the deceased but fact of the matter remains that mere relationship of the witness with the deceased per se would not render them as interested or partisan witnesses. The prosecution has fully proved its case by producing cogent and convincing evidence. Though the witnesses were cross-examined yet their evidence was not shattered at all, as such, we do not find any illegality, mis-reading or non-reading in the evidence. There are concurrent findings of two Courts below, which do not suffer from any illegal infirmity warranting interference by this Court.
Accordingly, the petition being devoid of any substance is dismissed and leave to appeal refused.
(J.R.) Leave refused.
PLJ 2006 SC 830 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar, Chairman; Muhammad Nawaz Abbasi; Mian Shakirullah Jan, Dr. Allama Khalid Mahmood and Dr. Rashid Ahmad Jullundhari, JJ.
MUHAMMAD ASLAM--Petitioner
versus
STATE and another--Respondents
Crl. P. No. 2(S) of 2005, decided on 22.12.2005.
(On appeal from the judgment of Federal Shariat Court dated 24.11.2004, passed in Criminal Appeal No. 199-L/1996)
(i) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----S. 10(3)--Constitution of Pakistan (1973), Art. 203-DD--Offence of Zina--Acquittal of petitioner by Trial Court, converted into conviction and sentence of seven years imprisonment--Legality--Verdict of acquittal although carries double presumption of innocence and unless there are strong reason reversal of finding of acquittal into that of conviction was not justified, yet in present case Federal Shariat Court having made detailed scrutiny of statement of victim and two eye-witnesses have rightly concluded that discrepancies and contradictions in their statement as pointed out by trial Court were not of much significance to draw inference adverse to prosecution and that view of evidence taken by trial Court was not only perverse but was also against principle of criminal administration of Justice--Reasons given by trial Court for acquittal of petitioner were speculative, artificial and conclusions drawn being based on mis-interpretation of evidence, was perverse and wholly un-reasonable therefore, conclusions drawn by Federal Shariat Court were quite in accordance with law--Statement of victim and eye-wintesses coupled with circumstanial evidence of un-impeachable character would suggest that Appellate Court had drawn right conclusion of evidence by converting verdict of acquittal into verdict of conviction--Impugned judgment of Appellate Court would not call for interference. [Pp. 834 & 835] A & B
(ii) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----S. 10(3)--Constitution of Pakistan (1973), Arts. 187 & 203-DD--Offence of Zina with girl of 12/13 years of age--Sentence awarded by Federal Shariat Court being imprisonment of seven years was inadequate--Supreme Court in exercise of powers under Art. 203-DD and 187 of the Constitution in interest of complete justice enhance sentence of petitioner from seven years to fourteen years after giving notice to petitioner. [Pp. 836 & 837] C
Mr. Muhammad Aslam Uns, ASC for Petitioner.
Ch. Munir Sadiq, ASC for Respondents.
Date of hearing : 22.12.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This petition has been directed against the judgment dated 14.11.2004 passed by the Federal Shariat Court, Islamabad, in an appeal filed by Mst. Atia, respondent herein, against the acquittal of petitioner from the charge under Section 10 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979, read with Section 452 PPC by a learned Additional Sessions Judge, Mandi Bahauddin.
The relevant facts in the background giving rise to this petition are that Mst. Atia (PW1), lodged a report on 23.7.1994 at Police Station Miana Gondal District Mandi Bahauddin to the effect that during the night between 22nd and 23rd of July 1994 she alongwith her father, who had weak eye-sight, was sleeping in the courtyard of her house when Muhammad Aslam, petitioner, and his co-accused Allah Bakhsh, while trespassing into their house and gagging her mouth with a piece of cloth, lifted her to the nearby fruit garden and committed zina-bil-jabr with her turn by turn. She stated that when Muhammad Aslam, petitioner, was busy in evil act, her neighbourer namely Muhammad Sher (PW 6) and Said Ahmed (PW 7) reached at the spot whereupon the accused leaving her in naked position, escaped from the place of occurrence. The witnesses brought her in semi-conscious condition to her house and she on gaining consciousness, narrated the incident to her parents.
The petitioner and his co-accused were tried for the charge under Section 10(4) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979, read with Section 458/34 PPC by the learned Additional Sessions Judge, Mandi Bahauddin. The prosecution mainly relied upon the testimony of Mst. Atia, complainant, a minor girl of 12/13 years. Sher Muhammad (PW 6) and Said Ahmed (PW 7) who having reached at the spot, have seen the occurrence and not only supported the prosecution story as contained in the FIR but also corroborated each other as well the statement of victim in each material point. Dr. Fazal Ahmed, (PW.9) Medical Officer, Rural Health Center, Miana Gondal having medically examined the petitioner and his co-accused found them fit to perform the sexual act. Mst. Atia was medically examined by Dr. Mubashara Anwaar, District Headquarters Hospital, Mandi Bahauddin but she having gone abroad, was not available during the trial, therefore, the medical legal report (Ex. "H") of the victim prepared and signed by her was proved by Azhar Javed (PW 10), a Dispenser of DHQ Hospital. The investigating officer of the case, Sub Inspector Nazar Hussain, was examined as PW 8 whereas the police officials, Muhammad Arshad, FC and Muhammad Azam, ASI who remained associated with the investigation, were examined as PW 4 and PW5 respectively.
The petitioner and Allah Bakhsh, his co-accused, who is also his brother-in-law, in their statement under Section 342 Cr.P.C. denied the charge and pleaded false implication. Allah Bakhsh also made a statement on oath under Section 340(2) Cr.P.C. wherein he stated that during the nigh of occurrence, he was present at his house in village Sandha at a distance of about 10 kilometers from the house of victim situated in village Head Faqiran and having strained relation with his in-laws, could not possibly commit such an offence jointly with his brother-in-law.
The learned trial Judge on conclusion of the trial, having formed an opinion that the prosecution has failed to prove the case against the accused beyond reasonable doubt, acquitted them from the charge. However, Mst. Atia, victim girl, being aggrieved of the acquittal of the accused, filed an appeal before the Federal Shariat Court under Section 20 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and learned Judges in the Federal Shariat Court after detailed scrutiny of the evidence having found the opinion that the conclusion of the evidence drawn by the trial Court was perverse being the result of misreading and misappreciation of evidence and after setting aside the acquittal of accused, convicted them under Section 10(3) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and awarded both of them a sentence of R.I. for 7 years with each benefit of Section 382-B, Cr.P.C.
Learned counsel for the petitioner has contended that Federal Shariat Court in utter disregard to the principles governing the appeal against acquittal and in departure to the rule of criminal administration of justice that acquittal carries double presumption of innocence, reversed verdict of acquittal given by the trial Court in favour of accused without any justification. Learned counsel while pointing out the contradiction and discrepancies in the prosecution evidence, has argued that the conclusion drawn by the trial Court was neither perverse nor un-reasonable as the circumstances leading to the happening of the alleged occurrence, would not support the claim of eye witnesses of suddenly reaching at the spot without any alarm of the victim and identified the assailants in the dark. The learned counsel argued that the factual situation of the case would suggest that it was an unseen occurrence and even victim was not in a position to identify the culprits in the dark, consequently in view of the doubtful character of evidence of identification of the assailants, the involvement of the accused in the occurrence was not proved beyond doubt. Lastly, he submitted that the victim was admittedly unconscious when she was brought to her house therefore, her claim of narrating the occurrence to her father in such condition, would not be accpetable and taking into consideration the above circumstances in totality it would be evident on record that the prosecution has failed to prove the charge against the petitioner and his co-accused beyond reasonable doubt.
Learned counsel for the State while supporting the judgment of the Federal Shariat Court has contended that the victim has clearly stated that the accused having forcibly taken her to the fruit garden, committed zina-bil-jabr with her and she was brought back to her house in semi-conscious condition and that after some time, she on gaining the consciousness, narrated the incident to her parents. The learned counsel submitted that neither the victims nor the witnesses had any malice or enmity against the accused or any other consideration to substitute them for the unknown culprits and that the direct evidence of the victim, coupled with the evidence of the two witnesses who having reached at the spot brought her to the dera of her father in naked condition, the medical evidence as well as the attending circumstances would strongly exclude even a remote possibility of the innocence of the accused or a slight doubt regarding their guilt.
There is no cavil to the proposition that the verdict of acquittal carries double presumption of innocence and unless there are strong reason, the reversal of finding of acquittal into that of conviction is not justified. However, in the present case, we find that the learned Judges in the Federal Shariat Court having made detail scrutiny of the statement of victim and the two eye witnesses have come to the conclusion that the discrepancies and contradictions in their statement as pointed out by the learned trial Judge were not of much significance to draw an inference adverse to the prosecution and that the view of the evidence taken by the trial Court was not only perverse but was also against the principle of criminal administration of justice. We having examined the record would take no exception to the view of the evidence taken by the Federal Shariat Court as the reasons given by the trial Judge for the acquittal of the accused were speculative, artificial and the conclusion drawn being based on misinterpretation of evidence, was perverse and wholly unreasonable, therefore, the appraisal of evidence by the Federal Shariat Court to draw its own conclusion in appeal against acquittal was quite in accordance with law. This is correct that weight is to be given to the finding of the trial Court if the conclusion drawn is based on fair reading of evidence and is not perverse or wholly unreasonable and thus interference in the acquittal for mere reason that another view of the evidence is possible, is not proper but if the appreciation of evidence has caused failure of justice, the order of acquittal must be set aside. In the present case, the victim girl was examined by a lady doctor on the day of occurrence and her medico legal report revealed as under:--
"1. A young girl brought to me via police for the examination of rape.
Date of examination 23-7-1994 at 11.20 p.m.
Age: 14/15 years.
Sic
(iv) Bite on the tip of tongue 2 cm x 2 cm area. (3) Cloths Shalwar is stained with blood discharge and soaked which is sealed into parcel and sent to chemical examiner.
(4) Examination private parts:--Thick black abundant hairs on vulva.
Hymen. Fresh tear present 2 cm x 1 cm with blood and pus on it. External and internal vaginal swabs taken, secured and sent to the chemical examiner Punjab for detection of semen. Vagina 2 F passed difficulty, blood came on p/v into R/v R/F size-------
FX clear.
Menstruation: Age of ------------- 12-13 years M/c 4-5 days and M.D two weeks back according to her statement.
Breasts: Nipple pink colour.
Final opinion will be given after the receipt of report of chemical examiner.
K.U.O.
Weapon Strangulation."
The report of the chemical examiner, Punjab, Lahore, was to the following effect:
"I hereby certify that I received by C. Muhammad Arshad No: 445 a packet of the WMO DHQH of Mandi Bahauddin alleged to have been dispatched by him on the 23rd day of July, 1994 referred to in his office MLR No. 24-F/94 dated 23.7.1994 and received by me on the 2nd day of the August, 1994.
The contents of the packet were as follows:--
Shalwar.
Vaginal Swabs......Two.
The above seals were opened in my presence and the contents of the packet were duly examined by me, remaining under my immediate custody until the examination was completed.
The stains/material I was led to examine for were: semen and Blood."
The examination of the statement of victim and the eye witnesses in the light of above pieces of circumstantial evidence of unimpeachable character, would suggest no other conclusion of the evidence except the one drawn by the Federal Shariat Court in appeal. This may be noticed that the finding of acquittal arrived at by the trial Court was based on minor contradiction and discrepancies, therefore, the conclusion drawn was certainly result of misinterpretation of evidence and against the principles of appraisal of evidence in criminal cases. It is evident from the record that the finding of acquittal being wholly unreasonable and perverse, have rightly been set aside by the Federal Shariat Court in appeal by reappraising the evidence and consequently, the judgment under challenge would not call for interference of this Court.
The Federal Shariat Court having found the accused guilty of committing an offence under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 awarded them a sentence of 7 years R.I. each without giving any reason as to how in the given facts and circumstances, the sentence was justified to meet the ends of justice. The quantum of sentence is certainly determined by the trial Court or the appellate Court as the case may be in consideration of (a) the nature of offence (b) the circumstances in which the offence was committed, (c) the gravity and degree of deliberation shown by the offender and such other factors appearing in the evidence but in the present case, the Federal Shariat Court without taking into consideration the above factors, has taken an extreme lenient view in the matter of sentence in such a serious case. This may be pointed out that the victim, a minor girl of 12/13 years was forcibly taken to the fruit garden adjacent to her house and was subjected to zina bil jabr by the accused who with a view to fulfil their sexual lust, raptured the virginity of an innocent girl therefore, they would not deserve any leniency in the matter of sentence. We may point out that the purpose of sentence is prevention of crime and to discourage the others to turn to crime. It is generally agreed that leniency in the matter of sentence in serious offences is against the object and wisdom of law whereas the rationale behind the deterrent punishment is to eliminate the crime or at least to reduce and discourage the crime in the interest of peaceful atmosphere in the Society. The ultimate purpose of deterrence or the lenient view in the matter of sentence directly or indirectly is the reformation of an individual as well as the Society. The concept of lenient view in the punishment is to bring down an offender to reform himself and restrain from repeating the crime whereas the goal of deterrence in the sentence is reduction in crime in the Society due to fear of law.
This Court in the light of facts and circumstances of the present case and the nature and gravity of offence, being of the view that sentence awarded to the petitioner and his co-accused in appeal by the Federal Shariat Court under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was inadequate, issued notice to the accused as to why their sentence be not enhanced. The learned counsel has not been able to satisfy us that in the circumstances of the present case, the sentence of seven years R.I. was sufficient to meet the ends of justice and consequently we in exercise of the powers under Article 203-DD read with Article 187 of the Constitution in the interest of complete justice, enhance the sentence of petitioner from seven years R.I. to 14 years and grant him benefit of Section 382-B, Cr.P.C. This petition with enhancement of sentence in the above manner in dismissed. Leave is refused.
Notice was also required to be issued to Allah Bakhsh, co-convict of the petitioner who has not filed any petition before this Court but the office has omitted to issue notice to him in terms of order dated 7.12.2005. The notice be also issued to Allah Bakhsh convict and case for enhancement of sentence against him shall be taken up separately in the next session after he is served and meanwhile he shall not be released from jail.
(Aziz Ahmad Tarar) Order accordingly.
PLJ 2006 SC 837 [Appellate Jurisdiction]
Present: Javed Iqbal and Hamid Ali Mirza, JJ.
MUHAMMAD AMIR (deceased) through Legal Representatives--Petitioners
versus
MUHAMMAD SHER and others--Respondents
C.P. No. 3344 of 2003, decided on 7.10.2005.
(On appeal from the order of the Lahore High Court, Lahore dated 16.10.2003 passed in C.R. No. 1892 of 2003)
(i) Constitution of Pakistan (1973)--
----Art. 185(3)--Concurrent findings of facts recorded by two Courts below--Such findings cannot be reversed without any lawful justification which is badly lacking in present case. [P. 838] A
(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Civil Procedure Code (V of 1908), O. XX, R. 5--Talb-i-Muwathibat--Petitioner failed to prove talb-i-muwathibat through cogent and concrete evidence--Evidence led by petitioner appears to be contrary to his own version--Scrutiny of judgment of First Appellate Court would indicate that finding was not given by him on each of the issue separately however, contentions dilated before First Appellate Court has been dilated upon and decided in a comprehensive manner--Judgment which deals with all points raised fulfills requirements of law even though the same might not have discussed each issue separately, cannot be termed as illegal or ab-initio void--Judgments impugned being well based does not warrant interference--Leave was refused. [P. 839] B
2000 SCMR 431; PLD 1994 SC 291; PLD 2002 SC 293 and 1991 SCMR 1816, ref.
Ch. Akhtar Ali, AOR for Petitioners.
Nemo for Respondents.
Date of hearing : 7.10.2005.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the order dated 16.10.2003 whereby revision petition preferred on behalf of petitioner has been dismissed and the judgment of learned Additional District Judge dated 1.10.2003 has been kept intact.
Precisely stated the facts of the case are that "Muhammad Amir the predecessor-in-interest of the present petitioners, filed a suit for possession through pre-emption, against the respondents, qua the land measuring 129-Kanals 16 Marlas, asserting therein, that the respondents purchased the land through mutation dated 24.1.1995 and got entered on ostensible sale price of Rs. 1,95,000/- as against the actual sale consideration of Rs. 1,50,000/- It was further the case of the petitioners that they came to know about sale on 11.4.1995 through Muzaffar Khan and Allah Ditta and they immediately announced their intention to file the suit, as they are co-sharers, owners of adjacent land and co-sharers in the amenities. The respondents contested the suit, thereby controverting the allegations made in the plaint, which culminated to the framing of the issues. The learned trial Court recorded the evidence of the parties and ultimately dismissed the suit, vide judgment and decree dated 19.4.2001. The petitioners filed the appeal but without any success, as their appeal was also dismissed by the learned Additional District Judge". Being aggrieved a revision petition was filed assailing the judgment/decree of the learned Additional District Judge, which was rejected by the learned Single Judge of the Lahore High Court in chambers, hence this petition.
Ch. Akhtar Ali, learned AOR entered appearance on behalf of petitioner and urged strenuously that the petitioners have substantiated Talabs pursuant to Section 13 of the Punjab Pre-emption Act, 1991 which aspect of the matter escaped the notice of the learned Courts below which resulted in serious miscarriage of justice. It is next contended that the learned Additional District Judge has decided the appeal in oblivion of the provisions as contended on Order 20, Rule 5 CPC and failed to render his findings of all the issues and on this score the judgment was liable to be set aside which aspect of the matter has been ignored by the learned High Court without any rhyme and reason.
We have carefully examined the contentions as agitated on behalf of petitioners, scanned the entire record with the eminent assistance of learned ASC and perused the judgment of learned trial and Appellate Courts as well as the judgment impugned. It is significant to note that concurrent findings of facts have been recorded by the Courts below which cannot be reversed without any lawful justification which is badly lacking in this case. It is well-entrenched legal proposition that without such justification the concurrent findings of facts cannot be reversed. In this behalf we are fortified by the dictum laid down in case of Anwar Zaman & five others v. Bahadur Sher and others (2000 SCMR 431), Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rashid Ahmed v. Muhammad Siddique (PLD 2002 SC 293).
A careful scrutiny of the entire record would reveal that even the witnesses of petitioner have not supported his claim. In this regard reference can be made to the statements of Allah Ditta (PW-3) and Muzaffar Khan (P.W.4). The petitioner has failed miserably to prove Talb-e-Mawatibat by producing any cogent and concrete evidence. The evidence led by him appears to be contrary to his own version. We have also adverted to the question as to whether the learned Additional District Judge has not given findings on each of the issues as required under Order 20, Rule 5 CPC. It transpired from scrutiny of judgment of learned Additional District Judge that each issue was not discussed separately but it hardly matters for the simple reason that all the contentions agitated before the learned Addl. District Judge has been dilated upon and decided in a comprehensive manner. It is well settled by now that a judgment which deals with all the points raised, fulfills the requirements of law even though it may not have discussed each issue separately cannot be termed as "illegal or ab initio void as pressed time and again by the learned ASC on behalf of the petitioner. If any reference is required the dictum laid down in Umar Din v. Ghazanfer Ali (1991 SCMR 1816) can be referred.
The upshot of the above discussion is that the judgment impugned being well based does not warrant interference and the petition being meritless is dismissed and leave refused.
(Aziz Ahmad Tarar) Leave refused.
PLJ 2006 SC 839 [Appellate Jurisdiction]
Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ.
Mst. FARAH NAZ--Appellant
versus
JUDGE FAMILY COURT SAHIWAL and others--Respondents
C.A. Nos. 1336 & 1337/2005, decided on 6.3.2006.
(On appeal from judgment of Lahore High Court, Multan Bench dated 15.12.2005 passed in W.P. Nos. 3179 & 4259 of 2004)
(i) Affidavit--
----Evidentiary value of--Affidavit filed in Court without opportunity cross examination to opposite party does not constitute legal and valid evidence and must be excluded from consideration. [P. 843] C
(ii) Civil Procedure Code, 1908 (V of 1908)--
----O. VIII, R. 1--Qanun-e-Shahadat Order (10 of 1984), Art. 89--Written statement--Defendant filing written statement residing in a foreign country--Such written statement must be got attested from Embassy of Pakistan in that country--Written statement having not been got attested in such manner would be deemed to have been in competently filed.
[P. 841] A
(iii) Limitation Act, 1908 (IX of 1908)--
----Ss. 5 & 14--Constitution of Pakistan (1973), Art. 185--Delayed filing of petition for leave to appeal on wrong advice of counsel--Effect--Party to litigation would not be made to suffer or prejudiced on account of wrong advice of counsel provided such advice was tendered bona fide. [P. 843] B
(iv) West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 5 & Sched--Limitation Act (IX of 1908), Art. 120 & S. 13--Claim for past maintenance--Limitation--Claim for past maintenance would be governed by Art. 120, Limitation Act 1908, which prescribes period of six years in a suit for which no period is provided elsewhere in Schedule to Limitation Act, 1908, from the date when right to sue accrues--Section 13, Limitation Act, 1908, however, postulates that in computing period of limitation prescribed for any suit, the time during which defendant had been absent from Pakistan and from the territories beyond Pakistan under administration of Central Government would be excluded. [P. 843] D
(v) West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 5 & Sched.--Suit for maintenance filed by wife against husband--Husband's claim to have divorced his wife--No document relating to divorce was produced in Court nor procedure prescribed in Muslim Family Laws Ordinance 1961 was followed--Oral allegation of divorce would neither be effective nor valid and binding on appellant, thus, wife would be legally entitled to past maintenance as claimed by her--Suit for past maintenance as per claim of appellant was decreed while findings of trial Court and High Court granting her lesser amount of maintenance were set aside while that of Appellate Court with modification was maintained. [P. 844] E
(vi) West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 5 & Sched.--Constitution of Pakistan (1973), Art. 185--Amount of maintenance and dowry--Amount claimed by appellant wife was neither contradicted nor rebutted--Amount worked out as value of dowry article was also neither rebutted nor contradicted, Nor any objection was filed relating to list of articles of dowry--Amount worked out by Appellate Court was found to be justified--High Court acted wrongly in reducing such amount in exercise of its Constitutional jurisdiction--Finding of High Court was set aside while that of Appellate Court was restored.
[Pp. 844 & 845] F
PLD 1968 Lahore 520; AIR 1937 PC 276; 1992 SCMR 592; PLD 1972 SC 302; 1993 CLC 2063; PLD 2004 SC (AJK) 25 and PLD 2005 Peshawar 194, ref.
Mr. S. M. Masud, ASC for Appellant.
Nemo for Respondent Nos. 1 & 2.
Mr. Muhammad Asghar Bhutta, ASC and Ch. Arshad Ali, AOR for Respondent No. 3.
Date of hearing : 6.3.2006.
Judgment
Rana Bhagwandas, J.--Both the appeals with the leave of the Court are directed against judgment of the Lahore High Court dated 15.12.2004 setting aside judgments passed by appellate forum in the suits arising out of proceedings under West Pakistan Family Courts Act 1964.
Appellant Mst. Farah Naz was married to respondent Inam Qadir on or about 28.12.1996. Marital relationship between the parties lasted for about one month when the respondent left for Paris leaving the appellant at her parental home in Sahiwal. Admittedly, there is no issue from the wedlock. As the respondent did not take care of appellant-wife for a pretty long time and married a second wife at Paris, she feeling frustrated and in distress filed a suit for recovery of maintenance on or about 16.2.2002 at the rate of Rs. 10,000/- per month. The respondent, who had by this time settled in Paris, managed to file a written statement admitting the factum of marriage with the assertion that as the appellant was insane and of imbalanced mind, he had announced divorce to her on 13.12.1997 in presence of witnesses, therefore, she was not entitled to the relief of maintenance. Coming to know about the so called act of divorce, appellant was persuaded to file another Suit No. 133 of 2002 on 15.7.2002 for recovery of the amount of dowry articles given to her by her parents at the time of her wedding. Likewise, this suit was resisted by the respondent through a written statement from Paris and both the suits proceeded before a Family Court at Sahiwal. It is pertinent to mention here that written statements in both the suits were incompetently filed as these respondent, at the relevant time, was settled in Paris (France) and written statements were not got attested from the Embassy of Pakistan, France as per Articles 89 of Qanun-e-Shahadat 1984. Reference may be made to Saeed Ahmad v. Mehmood Ahmad (PLD 1968 Lahore 520). The suit for maintenance was dismissed by Family Court vide judgment dated 17.7.2003 on the premise that the appellant having been divorced on the date of suit was not entitled to her maintenance. Second suit for recovery of Rs. 9,55,038/-, being value of the dowry articles, was decreed by the trial Court through its judgment of even date in the sum of Rs. 4,00,000/-.
Appellant challenged both judgments and decrees in appeals, which came up for hearing before an Additional District Judge, who decided the appeals by two separate judgments dated 22.4.2004. On re-evaluation of the evidence Appellate Court held that by reason of divorce announced by the respondent, she would be entitled to claim maintenance with effect from 28.12.1996 to 14.4.1998 and directed the respondent to pay the same at the rate of Rs. 8000/- per month. In the second appeal, he enhanced the value of dowry articles from Rs. 4,00,000/- to Rs. 9,55,038/- and decreed the suit accordingly. Respondent being dissatisfied with the judgments in both appeals filed two writ petitions before the Lahore High Court, Multan Bench. Learned Judge in the High Court while accepting writ petition impugning the decree for maintenance passed by Appellate Court, held that the plaintiff, in law, being entitled to claim maintenance for a period of three years prior to the filing of the suit could only be awarded maintenance from 15.2.1999 but since she stood already divorced on this date, therefore, her suit for maintenance was rightly dismissed by the trial Court. By another judgment in the writ petition filed by the respondent, learned Judge proceeded to re-evaluate the evidence and substituted the findings of fact recorded by the Appellate Court. Consequently, he set aside the judgment of the Appellate Court and restored that of the Family Court decreeing the suit in the sum of Rs. 4,00,000/-.
Both the parties being dissatisfied, filed three separate petitions for leave to appeal, in which leave was granted by this Court on 20.10.2005 to examine the question, inter alia, whether judgment passed by the High Court suffers from misreading or non-reading of record and whether the question of limitation for the purpose of past maintenance was correctly decided by the High Court in accordance with law. It may be pertinent to note that C.P.L.As in these appeals filed by the appellant were barred by 27 days and 12 days respectively and leave to appeal was granted subject to the question of limitation.
We have heard Mr. S.M. Masood, learned ASC for the appellant in both the civil appeals and Mr. Muhammad Asghar Bhutta, learned ASC for the private respondent at length and gone through the record.
Adverting to the question of limitation in filing these petitions, it may be noted that explanation furnished by the appellant is that she is a parda observing lady and her brother Shaukat Ali Khan used to look after her affairs, but he being employed in Merchant Navy was out of country. He returned to Pakistan from Singapore on 21.1.2005 where after he contacted a local counsel at Sahiwal, who being not a practicing Advocate of Supreme Court having consulted the latest diary published by Punjab Bar Council for the year 2005, informed him that under Article 179 of the Schedule to the Limitation Act, as mentioned at page 14 of the Diary, period of 90 days was provided for filing a petition for leave to appeal from the date of decree. He advised the brother of the appellant accordingly that period for such purpose would be 90 days. In these circumstances, the appellant pleaded that she being a parda observing lady and not moving in public was misled due to wrong advice tendered by the counsel. Thus the delay, if any, was neither deliberate nor intentional. In support thereof apart from her affidavit, she has filed affidavit of Mr. Israr Ahmad Chaudhry, Advocate Sahiwal, copies of relevant pages from the diary of the Punjab Bar Council as well as copies of the entries in the passport of Shaukat Ali Khan to demonstrate that he landed at Lahore on 21.1.2005.
Upon hearing learned counsel for parties and examination of the aforesaid documents, which have remained un-rebutted, we are persuaded to the view that there was a sufficient cause for filing the petitions beyond the period prescribed by law. We earnestly feel that a party shall not be made to suffer or prejudiced on account of wrong advice of a counsel provided it was tendered bonafide. We are fortified in our view by Rajendra Bahadur v. Rajeshwar Bali (AIR 1937 P.C. 276), Nazar Muhammad v. Shahzada Begum (PLD 1974 SC 22) and Abdur Raud v. Khurshid Ali (1992 SCMR 592) Period for filing of leave petitions in both the appeals is, therefore, extended under the provisions of Order XIII Rule 2 of the Pakistan Supreme Court Rules 1980 in the larger interest of justice.
Reverting to the merits of the appeal in the suit for maintenance, it may be observed that the trial Court as well as the Appellate Court and the High Court fell in serious misconception of law. The first two Courts having accepted the averments of written statement of the respondent and his affidavit without proper attestation as gospel truth treated the same as legal evidence without subjecting him to the test of cross-examination. It is ironical to note that the appellant had moved an application under Section 11(4) of the Family Courts Act 1964 praying the trial Court to summon the respondent for cross-examination in relation to his affidavit forwarded from Paris but the Family Court illegally rejected the said prayer and accepted the affidavit on its face value merely because the respondent had been living in Paris and was not readily available in Pakistan. This approach on the part of the trial Court and endorsed by the Appellate Court apart from being without any legal backing is repugnant to the settled principles of law that an affidavit without an opportunity of cross-examination to the opposite party does not constitute legal and valid evidence and must be excluded from consideration.
On its part, High Court also committed serious error of law by non-suiting the appellant with the observation that period for recovery of past maintenance being three years, without citing any provision of the Limitation Act proceeded to endorse the judgments of the two Courts below. Indeed the claim for past maintenance would be governed by Article 120 of the Schedule to the Limitation Act 1908, which prescribes a period of six years in a suit for which no period is provided elsewhere in this Schedule from the date when the right to sue accrues. Furthermore, by reason of Section 13 of the Limitation Act 1908 in computing the period of limitation prescribed for any suit the time during which the defendant had been absent from Pakistan and from the territories beyond Pakistan under administration of the Central Government shall be excluded. Assuming, without conceding even if the period of limitation for such suit be three years, in view of the admitted absence of the respondent from Pakistan, the period of his absence from Pakistan shall be excluded for reckoning the period of limitation. We are supported in this view by the precedents reported as Muhammad Nawaz v. Khurshid Begum (PLD 1972 S.C. 302), Mst. Bushra Qasim v. Dr. Abdul Rasheed & others (1993 CLC 2063), Mst. Zaibun v. Mehrban (PLD 2004 S.C. (AJ&K) 25) and Mst. Anar Mamana & another v. Misal Gul and others. (PLD 2005 Peshawar 194).
On the merits of the case, we find that the appellant having been lawfully wedded to the respondent in the absence of any proof of dissolution of marital tie, it was his legal, moral as well as social duty under the Islamic principles to provide adequate maintenance for her respectable living as in law he could not neglect to maintain her during the subsistence of the marriage tie. His bald statement that he had announced talaq to her on 13.12.1997 cannot be accepted at all as he utterly failed to substantiate it. In law, he was required to send notice to the Arbitration Council under the Muslim Family Laws Ordinance 1961 and also to send a copy of notice to the appellant by registered post. No such proceedings having been ever conducted, oral allegation of talaq would neither be effective nor valid and binding on the appellant, who would, in all fairness, be legally entitled to past maintenance as claimed by her. In view of social status and income of the respondent, living in a highly developed country like France the amount of maintenance claimed by the appellant was neither excessive nor unreasonable in view of inflation in the cost of living and the amount of probable income earned by the respondent. Her claim, therefore, was justified by all canons of justice and reason. Two Courts below as well as the High Court, therefore, suffered from serious error of law by misreading of record and exclusion of material piece of evidence from consideration, which has resulted in gross miscarriage of justice. In fact the written statement cannot be considered as substitute of evidence on oath. Similarly, as observed earlier, affidavit of the respondent though attested by Pakistan Embassy in France would not constitute legal evidence as he did not appear for his cross-examination before the Family Court. In fact he did not endeavour to appear even before the Appellate Court at any point of time. Un-rebutted version of the appellant would, therefore, be considered as valid and legal for all intents and purposes, particularly, when it stood uncontroverted. Consequently we are of the considered view that the interference of the High Court in the matter in its Constitutional jurisdiction was beyond the scope of Article 199 of the Constitution and the judgment of the High Court must not be allowed to remain in field. We, therefore, while setting aside the judgments of the High Court and the trial Court direct that in partial modification of the judgment of the Appellate Court the suit of the plaintiff for maintenance be decreed in the sum of Rs. 10,000/- per month as claimed by her in the suit.
Taking up the issue of dowry articles, again the evidence of the appellant was neither contradicted nor rebutted and the list of articles as well as value of the articles shown in it must be accepted on its face value. Indeed reasons recorded by the trial Court in this behalf do not appeal to mind and assessment of value of the articles in the sum of Rs. 4,00,000/- appears to be artificial, whimsical and arbitrary. On the other hand calculation made by the Appellate Court accepting the claim of the appellant in the sum of Rs. 9,55,038/- is evidently justified and warranted by law. It was none of the business of the High Court in writ jurisdiction to substitute its own findings for the findings recorded by the Court of appeal after due appraisal of evidence. We would, therefore, set aside the judgment of the High Court as well as that of the Family Court decreeing the suit in the sum of Rs. 4,00,000/- and restore the judgment of the Appellate Court accepting the claim of the appellant, as pleaded in the suit.
For the aforesaid facts, circumstances and reasons, both the appeals were allowed with costs.
(Aziz Ahmad Tarar) Appeals accepted.
PLJ 2006 SC 845 [Appellate Jurisdiction]
Present: Rana Bhagwandas, Khalil-ur-Rehman Ramday and Nasir-ul-Mulk, JJ.
M/s PARKS PAKISTAN (Pvt.) Ltd.--Appellant
versus
DIRECTOR GENERAL EXCISE AND TAXATION, LAHORE and others--Respondents
C.A. No. 1703 of 2003, decided on 1.2.2006.
(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 30.9.2003 passed in W.P. No. 1149 of 2002).
Punjab Entertainment Duty Act, 1958--
----Ss. 3 & 3-A (added by Punjab Finance Act, 2000)--Imposition and collection of entertainment duly assailed by appellant--Appellant's writ petition against imposition and collection of tax in question was dismissed--Repeal of entries at Serial No. 1 of S. 3-A--Effect--Entertainments mentioned in repealed entry were not exonerated from payment of duty, if they were otherwise covered by definition of "entertainment" and were thus, chargeable to duty under S. 3 of Punjab Entertainment Duty Act 1958--Rides in chair lift by those who make payment for the same would be "amusement" which is one of the kinds of "entertainments" mentioned in Clause (d) of S. 2 of Punjab Entertainment Duty Act, 1958--High Court, thus, correctly concluded that appellant was still liable to pay duty under S. 3 of Punjab Entertainment Duty Act 1958, notwithstanding repeal of relevant part of S. 3-A of the Act of 1958. [Pp. 848 & 849] A & B
1994 CLC 1034 and PLD 1991 SC 870, ref.
Mr. Muhammad Munir Peracha, ASC & Mr. Ejaz Muhammad Khan, AOR for Appellant.
Mrs. Afshan Ghazanfer, A.A.G. Punjab for Respondents.
Date of hearing : 1.2.2006.
Judgment
Nasir-ul-Mulk, J.--This appeal, by leave of the Court, filed by M/s Parks Pakistan (Pvt.) Limited, arises from the judgment of the Lahore High Court, Rawalpindi Bench, of 30.9.2003 by which the appellant's writ petition, challenging the imposition and collection of entertainment duty under Section 3 of the Punjab Entertainments Duty Act, 1958, was dismissed.
"The question of interpretation of Sections 2(d), 3(1) of the West Pakistan Entertainments Duty Act, 1958, Section 3-A added through Punjab Finance Act, 1992 and the legal consequence of their omission by Punjab Finance Ordinance, 2000 and the notification of 1995 produced by the learned Assistant Advocate General has risen which is undoubtedly a question of law of public importance, therefore, we would grant leave to appeal."
The appellant is operating a Chair Lift System at Bansra Gali, Murree, since the year 1988, charging free from those taking rides in the Chair Lift. The Director, Excise & Taxation, Rawalpindi, imposed 100% entertainment duty on the admission fee to the Chair Lift under Section 3 of the Entertainments Duty Act. After contesting the imposition of the duty before the relevant authorities, the appellant filed a writ petition in the Lahore High Court, Rawalpindi Bench, urging that the rides in the Chair Lift was not entertainment as defined in Clause (d) of Section 2 of the Act. The argument did not persuade the Court and the writ petition was dismissed by judgment dated 2.5.1993, reported as "Parks Pakistan (Pvt.) Ltd. v. Director, Excise and Taxation (1994 CLC 1034)". From the said judgment, the appellant filed petition for leave to appeal before this Court. The petition was, however, not pressed in view of a Notification dated 12.1.1995 by which the appellant was allowed some relief in the payment of entertainment duty as the same was not directed to be charged under Section 3-A of the Entertainments Duty Act, added by the Punjab Finance Act, 1992. Section 3-A was however, repealed by the Punjab Finance Act, 2000, whereafter the appellant was again being charged entertainment duty under Section 3 of the Act. The appellant questioned this imposition before the Lahore High Court, contending that with the repeal of Section 3-A, no entertainment duty whatsoever was payable by the appellant. This contention did not prevail with the High Court, which by the impugned judgment held that notwithstanding the repeal of Section 3-A, the appellant was liable to pay duty under Section 3 as the appellant's activities fell within the definition of `entertainment' as given in Section 2(d) of the Act. It was in these circumstances that the leave was granted to the appellant.
In order to properly appreciate the contentions raised by Mr. Muhammad Munir Peracha, ASC representing the appellant and Mrs. Afshan Ghazanfer, Assistant Advocate General, Punjab, appearing for the respondents, it will be appropriate to refer to the relevant provisions in the Entertainments Duty Act and the amendments made therein.
Clause (d) of Section 2 of the Act as it originally appears reads: "Entertainment, includes any exhibition, performance, amusement, game or sport to which persons are admitted on payment". This definition of `entertainment' underwent a slight change by the amendment made in the Act by Section 3 of the Punjab Finance Act, 1992 where the words "game or sport" were substituted by the words "horse racing". By the amendment, the rate of duty in the charging Section 3 was altered to 65%. By this amending Act, Section 3-A was added which reads:--
"3-A Duty on special classes of entertainments.--Notwithstanding the provisions of Section 3, the duty on the entertainments mentioned below in Column No. 2 shall be charged at the rates mentioned against each in Column No. 3:--
Sr. No. Entertainment
Rate of duty
(a) No duty for the first two years of the functioning of such entertainments;
(b) Ten per cent of the payment for admission during the next two years; and
(c) Twenty-five per cent of the payment for admission thereafter.
............................................
............................................"
The Punjab Finance Ordinance 2000 repealed the entries at Sr. No. 1 of Section 3-A.
The learned counsel appearing for the appellant contended that once the appellant was duly notified by the Director, Excise & Taxation to be subject to payment of entertainment duty under Section 3-A, with repeal of its relevant provision, the appellant cannot now be charged duty under Section 3 of the Act. That by the repeal, the intention of the Legislature was to exclude from levy of duty those premises and activities mentioned at Sr. No. 1 of Section 3-A.
The learned Assistant Advocate General, Punjab, pointed out that the appellant had earlier too challenged the duty in a writ petition on the ground that the appellant's activity was not covered by the definition of entertainment' which was dismissed by the Lahore High Court, in the case of "Parks Pakistan (Pvt.)
Ltd. v. Director, Excise and Taxation" (ibid) and since the appellant had withdrawn its petition for leave to appeal against the said judgment, the decision of the Lahore High Court that rides in the Chair Lift was entertainment, had attained finality. The learned Assistant Advocate General, also brought to our notice a judgment of this Court in Government of West Pakistan v. Jabees Limited (PLD 1991 SC 870), where the scope of the wordentertainment' as it appears in the Entertainments Duty Act, has comprehensibly been explained.
The original charging provision under the Entertainments Duty Act was Section 3, which levied duty on entertainments as defined in Clause (d) of Section 2. The Punjab Finance Act, 1992, apart from bringing about some change in the definition of entertainment, added another charging provision by incorporating Section 3-A in the Act and giving it an over riding effect over Section 3. The two sections were not mutually exclusive, but rather overlapped. However, those activities that were covered by Section 3-A were liable to duty in terms and at the rate mentioned therein, whereas the remaining kinds of entertainment were still liable to be charged under Section 3 of the Act. Thus, by the repeal of entries at Sr. No. 1 of Section 3-A by the Finance Ordinance, 2000, the entertainments mentioned therein were not exonerated from the payment of duty, if they were otherwise covered by the definition of `entertainment' and thus were chargeable to duty under Section 3.
The learned counsel for the appellant had also contended that the rides in the Chair Lift would not fall within any of the activities mentioned in the definition of entertainment' given in Clause (d) of Section 2. We do not find ourselves in agreement with this contention and are of the view that the rides in the law Chair Lift by those who make payment for the same would beamusement', which is one of the kinds of entertainments mentioned in Clause
(d) of Section 2. Though the word amusement' has not been defined in the Act, according to the Oxford English Dictionary, it inter alia means
"recreation, relaxation, the pleasurable action upon the mind of anything light and cheerful, pleasant excitement". Those who go for the rides in the Chair Lift, obviously do so for relaxation, pleasure or excitement. It may also be noted that definition ofrecreation' appearing in Clause (d) of
Section 2 of the Act is not exhaustive as it begins with the word `include'
{See "Government of West Pakistan v. Jabees Limited (ibid)}. The facility provided by the appellant of rides in the Chair Lift on payment of fee, is a recreation for those who avail the facility. The Lahore High Court, therefore, correctly concluded that the appellant was still liable to pay duty under
Section 3 of the Entertainments Duty Act, notwithstanding the repeal of the relevant part of Section 3-A.
The appeal is, therefore, dismissed with no order as to costs.
(Aziz Ahmad Tarar) Appeal dismissed.
PLJ 2006 SC 849 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ.
Sh. JAMIL AHMAD (represented through his Legal Representatives)--Petitioner
versus
ADMINISTRATION MUNICIPAL COMMITTEE, ABBOTTABAD and others--Respondents
C.P. Nos. 1758 & 1856 of 2005, decided on 25.1.2006.
(On appeal from judgment dated 9.2.2005, passed by Peshawar High Court, Abbottabad Bench in W.P. No. 226/2001 in both cases).
North West Frontier Province Public Property (Removal of Encroachment) Act, 1977
----S. 3--Constitution of Pakistan (1973), Art. 185(3)--Petitioner's claim of ownership relating to property in question, was dismissed by Tribunal and High Court--Supreme Court in earlier round of litigation had determined character and status of shops in question, whereby respondent was found owner thereof--Matter relating to dispute of title and ownership of shops in question, having attained finality was a past and closed transaction which could not be re-opened--As for compensation for re-construction of shops, respondent had allowed him to reconstruct the same earlier without treating him as un-authorized occupant and allowed him to retain possession thereof, as landlord--Status of occupant would thus, be that of licensee and he would have legitimate claim for compensation for construction raised by him--Finding no substance in findings of High Court, leave to appeal was refused. [Pp. 851 & 852] A & B
Qazi Ghulam Rauf, ASC with Ch. Akhtar Ali, AOR for Petitioner (in C.P. No. 1758/2005).
Nemo for Respondent (in both petitions).
Malik Manzoor Hussain, ASC & Mr. M. S. Khattak, AOR for Petitioner (in C.P. No. 1856/2005).
Date of hearing : 25.1.2006.
Judgment
Muhammad Nawaz Abbasi, J.--These two connected petitions under Article 185(3) of Constitution have been directed against the judgment dated 9.2.2005 passed by the Peshawar High Court, Abbottabad Bench, whereby the Constitutional petition filed by the present petitioner questioning the legality of judgment dated 2.7.2001 passed by learned District Judge exercising the power of Tribunal constituted under Public Property (Removal of Encroachment Act), NWFP 1977 was dismissed.
The relevant facts in the background giving rise to these petitions are that property subject matter of the dispute, (shops) is situated within the premises of Empire Cinema, Abbottabad, was a leased property and late Sh. Jamil Ahmed, predecessor-in-interest of Sh. Zahoor and others, (present petitioners) purchase the property (shops) in auction held in execution of a decree passed by Senior Civil Judge, Abbottabad in 1966. The suit property was mortgaged by Mian Yameen ul Haq, the original lessee, in favour of one Muhammad Ashraf, who by way of filing of a suit, challenged the auction but the suit was dismissed and the judgment of Court of first instance was further upheld by the High Court in appeal. The Municipal Committee, Abbottabad, in the ejectment proceedings initiated by the petitioners against a tenant, denied his title in the property but the Rent Controller having treated the petitioner as owner of the property (shops) held him landlord of the shops and rejected the claim of the tenant as well as that of the Municipal Committee, Abbottabad. In consequence thereto, the Municipal Committee having acknowledged the title of petitioner, approved the site-plan submitted by him in 1982 for reconstruction of the shops and he accordingly, reconstructed the shops. The property being of evacuee character, was on lease with the judgment debtor, who had further mortgaged it with a third person and on expiry of original lessee in 1986, Municipal Committee, Abbottabad, issued notice to the petitioner under Section 3 of NWFP Public Property (Removal of Encroachment) Act, 1977 (hereinafter called the Ordinance) whereupon, he filed a suit in the Court of District Judge, Abbottabad exercising the power of Tribunal constituted under the Ordinance, wherein a declaration was sought to the effect that petitioner having purchased the property in Court auction, was its lawful owner and was not an unauthorized occupant. The suit was dismissed by the Tribunal vide judgment dated 2.7.2001 and further in the constitution petition filed by the petitioner, this judgment was maintained by the High Court.
The learned counsel for the petitioner has contended that the property was purchased by the petitioner in an open auction held in execution of decree and notwithstanding any defect in the title of the original owner, he being a bona-fide purchaser was lawful owner of the shops and could not be considered as an unauthorized occupant in terms of Section 3 of the Ordinance but the Tribunal as well as the High Court through misconception of law, held him unauthorized occupant.
The learned counsel for the administrator Municipal Committee, Abbottabad, respondent herein, has contended that the claim of the petitioner regarding ownership of the property was without any substance, as the property was on lease with the judgment-debtor, therefore, the title of the auction purchaser would be confined only to the extent of the lease hold rights and in any case, the question regarding the title of property has already been settled by this Court in the earlier round of litigation between the parties. The learned counsel for the petitioner to the contrary claimed exclusive ownership in the suit property with the assertion that the shops and the premises of Empire Cinema were two independent properties and the shops were not included in the lease in question.
This Court in Civil Appeal No. 1655 of 1997 arising out of the dispute regarding the title of the property, between the original lessee and the Municipal Committee, Abbottabad, having determined the character and status of the shops as part of the premises of Empire Cinema, held that the entire property belonged to Municipal Committee, Abbottabad. In view thereof, the matter relating to the dispute of title and ownership of the disputed shops having attained finality, was a past and closed transaction which could not be reopened. Consequently, the concurrent finding of the two Courts regarding the origin and the character of property would not call for interference of this Court, in the present petition (CP 1758 of 2005). In the light of the above legal and factual position, we have not been able to find out any substance in the contention raised by the learned counsel for the petitioner in support of this petition for grant of leave.
The Administration Municipal Committee Abbottabad being aggrieved of the order of High Court relating to the grant of compensation to the respondent for construction of shops, has filed the connected petition bearing number 1759 of 2005. The learned counsel for the petitioner in this petition, has contended that the respondent was not entitled to the compensation for the construction of shops as he has regularly been receiving the rent of the shops even after expiry of the original lease and was adequately compensated. This is an admitted fact that the shops were reconstructed by the respondent in 1982 with the permission of petitioner and even after expiry of the original lease in 1986, the petitioner without treating him as an unauthorized occupant, allowed him to retain the possession as landlord of the shops till issue of notice under Section 3 of the ibid Act in 1996. In any case, the status of the respondent would be recognized in law as licensee and he would have legitimate claim of the compensation for the construction raised by him with the permission of Municipal Committee.
In the light of the foregoing discussion, we do not find any substance in these petitions and the same are accordingly dismissed. Leave is refused in both the petitions.
(Aziz Ahmad Tarar) Leave refused.
PLJ 2006 SC 852 [Appellate Jurisdiction]
Present: Rana Bhagwandas, Saiyed Saeed Ashhad and Hamid Ali Mirza, JJ.
MIAN CORPORATION through their MANAGING PARTNER--Petitioner
versus
M/s. LEVER BROTHERS OF PAKISTAN LTD. through their General Sales Manager, Karachi--Respondent
C.P.L.A. No. 490 of 2004, decided on 15.12.2005.
(On appeal from judgment of High Court of Sindh Karachi dated 23.1.2004 passed in H.C.A. No. 875 of 2000)
Arbitration Act, 1940 (X of 1940)--
----S. 14--Limitation Act (IX of 1908), S. 14--Constitution of Pakistan (1973), Art. 185(3)--Award made rule of the Court by High Court--Legality--Arbitrator acts in a quasi judicial manner and his decision is entitled to utmost respect and weight unless misconduct is proved against him to the satisfaction of Court--Arbitration award would be discarded if his findings were contrary to law and material on record--No legal infirmity or defect or want of jurisdiction on part of Arbitrator was, however pointed out--Court does not sit in appeal over award--Questions raised by petitioner were questions of fact which High Court had rejected for valid reasons to which no exception can be taken--Leave to appeal was thus, refused. [Pp. 853 & 854] A & B
PLD 2003 SC 301, ref.
Rana Fayyaz Ahmad, ASC & Ch. Akhtar Ali, AOR for Petitioner.
Sheikh Iftikhar Ahmad, ASC for Respondent.
Date of hearing : 15.12.2005.
Judgment
Rana Bhagwandas, J.--Petitioner seeks leave to appeal against Sindh High Court judgment dated 23.1.2004 dismissing its objections to the arbitration award made by Mr. Justice (Retd) G.H. Malik to whom the dispute was referred by the High Court in Suit No. 875 of 2000.
Petitioner being the sole distribution agent of the respondent Company with right to distribute their products of tea, on termination of the agency, filed a suit for specific performance of contract and claimed damages to the tune of 10,064,500/- before the Sindh High Court. In view of arbitration clause in the agency agreement between the parties, High Court referred the dispute to the Arbitrator, who, after conducting requisite proceedings and entertaining claims of the petitioner and objections, by the Company decided against the petitioner, through his award dated 15.5.2002 and filed by the same before the High Court in terms of Section 14(2) of the Arbitration Act 1940.
Upon notice of filing of the award, petitioner filed a number of objections alleging misconduct against the Arbitrator, which were resisted by respondent. High Court decided all the objections as being without any merit and on acceptance of the award, made the same rule of the Court and dismissed the suit with no order as to costs.
We have heard learned counsel for the parties at quite some length and gone through the impugned judgment and the record.
Main contention of the learned counsel for the petitioner appears to be that his claim was not barred by limitation and that the Arbitrator fell into error by not allowing exclusion of time as permissible under Section 14 of the Limitation Act 1908 because the petitioner had been prosecuting his remedy before proper forums bona fide and in good faith, which period ought to have been excluded while reckoning the period of limitation.
We have carefully considered the submission of the learned counsel, which was also attended to by the learned Arbitrator and found against the petitioner. Petitioner had agitated this question before the Sindh High Court as well but the High Court has discarded the same for valid reasons, to which no exception can be taken.
Learned counsel attempted to persuade us to examine the merits of the claim of the petitioner involving disputed questions of fact. It is well settled that the Arbitrator acts in a quasi judicial manner and his decision is entitled to utmost respect and weight unless the misconduct is not only alleged but also proved against him to the satisfaction of the Court. The arbitration award may, however, be discarded if the findings are contrary to law and the material on record. Learned counsel has been unable to pinpoint any inherent legal infirmity or defect or want of jurisdiction on the part of the Arbitrator who has elaborately dealt with the claim of the petitioner in minute details which reference to the explanation furnished by the respondent Company. Suffice it to observe that while examining the award Court does not sit in appeal over the award and has to satisfy itself that the award does not run counter to the settled principles of law and the material available on record. Indeed Arbitrator is final judge on the questions of law and facts and it is not open to a party to challenge the decision if it is otherwise valid. If an arbitrator has made an award in terms of the submissions made before him, no adverse inference can be drawn against him. An award cannot be lawfully disturbed on the premise that a different view was possible if the facts were appreciated from a different angle. In fact the Court while examining the correctness and legality of the ward does not act as a Court of appeal and cannot undertake reappraisal of evidence recorded by the Arbitrator in order to discover the error or infirmity in the award. Learned counsel for the respondent has referred to Pakistan Steel Mills Corporation v. Mustafa Sons (Pvt.) Ltd. (PLD 2003 S.C. 301), which fully supports the impugned judgment as well as the view taken by us in this petition.
For the aforesaid facts, circumstances and reasons, we find no merit in this petition, which is accordingly dismissed and leave to appeal refused.
(Aziz Ahmad Tarar) Leave refused.
PLJ 2006 SC 854 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Faqir Muhammad Khokhar and M. Javed Buttar, JJ.
COLLECTOR OF CUSTOMS, CENTRAL EXCISE AND SALES TAX--Appellants
versus
MAHBOOB INDUSTRIES (PVT) LTD. and others--Respondents
C.A. Nos. 813 to 821, 932 & 933 of 2002, decided on 21.12.2005.
(On appeal from order/judgment dated 21.1.2002 & 11.2.2002 passed by the Lahore High Court, Lahore in C.As Nos. 347/2001, 348/2001, 349/2001, 350/2001, 351/2001, 352/2001, 355/2001, 356/2001, 357/2001, 359/2001 & 2/2002)
Central Excises Act, 1944 (I of 1944)--
----S. 2(25)--Constitution of Pakistan, (1973), Art. 185--Plastic pouches manufactured by respondents--Liability to Central Excise Duty and Sales Tax on Plastic pouches--Preparation of plastic pouches bags by converting polyethylene film was manufacturing process--Plastic pouches bags manufactured by respondents were capable of being sold in market--Notification dated 13.6.1996 issued under S. 3 of Central Excises Act, 1944 and Sales Tax Act 1999, were clearly applicable--Poly bags in question, having been put to business use were not exempt from sales tax under provisions of S. 3 of Central Excises Act, 1944 coupled with 6th Schedule of Sales Tax Act, 1990--Mere fact that vegetable oil/ghee was exempt from central excise and Sales Tax would not exclude production/manufacturing of polyethylene poly bags from ambit of taxable activity or goods for purpose of Central Excises Act and Sales Tax Act. [Pp. 856 & 857] A & B
1999 SCMR 526; 2001 SCMR 1376; PLD 1965 SC 161; 1988 CLC 1772; AIR 1981 SC 1206 and 2000 SCMR 1708, ref.
Mr. Makhdoom Ali Khan, Attorney General alongwith Mr. Izhar-ul-Haq Sheikh, ASC & Mr. Khurram Hashmi, Advocate for Appellant.
Mr. Zaeem-ul-Farooq Malik, ASC for Respondents.
Date of hearing : 21.12.2005.
Judgment
Faqir Muhammad Khokhar, J.--These appeals, by leave of the Court, are directed against judgment dated 21.1.2002, passed by a learned Division Bench of the Lahore High Court in Appeal No. C.As. Nos. 347/2001, 348/2001, 349/2001, 350/2001, 351/2001, 352/2001, 355/2001, 356/2001, 357/2001, 359/2001, 2/2002.
The respondents are manufacturers of vegetable ghee. The appellant served them show-cause notices in that the plastic pouches covered by PCT heading 3923.0000 produced by them were liable to the Central Excise Duty and Sales Tax being an independent product. The respondents took the position that the pouch manufacturing was not an independent but a simultaneous process of ghee manufacturing or packing of oil and ghee in those pouches. The same were covered under H.S. Code 15.16 and not 39.23 under the head plastic pouches. They also took the plea that they had not charged any excise duty or sales tax from the consumers. The appellant directed the respondents to pay central excise duty and sales tax along with additional duty and additional tax together with the penalties under Rule 210 of the Central Excise Rules, 1944 and Section 33(4) of Sales Tax Act, 1990. Therefore, the respondents preferred appeals before the Customs, Excise and Sales Tax Appellate Tribunal, Lahore, against orders passed by the appellant. The Tribunal also found that the poly bags manufactured by respondents were chargeable to central excise duty @ 5% in terms of Notification S.R.O. No. 456(1)/1996 dated 13.6.1996 and also to sales tax at the standard tax rate being taxable goods. The respondents filed further appeals before the Lahore High Court, which were allowed by the impugned judgment whereby the levy of the excise duty and sales tax by the Collector as affirmed by the Tribunal were set aside. Hence these appeals by leave of the Court.
Mr. Makhdoom Ali Khan, the learned Attorney General for Pakistan argued that the conversion of polyethylene film into polyethylene poly bags was an independent manufacturing process with a separate entity which was covered by definition of "Manufacture" as provided in Section 2(25) of the Central Excises Act, 1944 and Section 2(16) of the Sales Tax Act, 1990. Therefore, the same were liable to central excise duty as well as the sales tax. The polyethylene poly bags were also taxable supply within the meaning of Section 2(33) of the Sales Tax Act, 1990. Therefore, the respondents were rightly required by the appellant to pay the central excise duty as well as the sales tax under Section 3 of the Act of 1944 read with S.R.O. No. 456(1)/96 dated 13.6.1996, and Section 3 of the Sales Tax Act, 1990. In support of his submissions, the learned Attorney General relied on the cases of Commissioner of Sales Tax and others versus Hunza Central Asian Textile and Woolen Mills Ltd. and others (1999 SCMR 526) and Sheikhu Sugar Mills Ltd. and others versus Government of Pakistan and others (2001 SCMR 1376).
On the other hand, Mr. Zaeem-ul-Farooq Malik, ASC, the learned counsel for the respondents argued that the process of preparation of pouches was simultaneous with the manufacturing of vegetable ghee/oil. Therefore, the plastic pouches prepared by them could not be classified under P.T.C. Heading 3923.3300 but under Heading 3923.0000. It was next submitted that since at the time of assessment, poly bags/pouches were found to be filled with vegetable ghee/oil, the same were to be classified as composite goods under PTC Heading which were exempt. The filling and sealing machinery for packing vegetable ghee in plastic pouches was installed in the premises of mills of the respondents and the same were connected with the kettle of oil/ghee manufacturing plants through pipelines meant for transfer of oil or ghee from kettle to the machine through which the rolls of polyethylene films were folded.
We have heard learned Attorney General for Pakistan as well as the learned counsel for the respondents at length and have also gone through the available record. We find that the preparation of pouches/poly bags by converting the polyethylene film was a manufacturing process. The word "manufacture" under Section 2(25) of the Central Excises Act, 1944 includes any process incidental or ancillary to the completion of a manufactured product, any process of re-manufacture, re-melting, reconciliation or repair and the process of packing or re-packing such product. The pouches/poly bags manufactured by the respondents were capable of being sold in the market. It would hardly make any difference even if the conversion of polyethylene bags were manufactured for self or home consumption. The Notification S.R.O. No. 456(1) dated 13.6.1996 issued under Section 3 of the Central Excises Act, 1944 and the Sales Tax Act 1999 were clearly applicable. The poly bags were put to business use. They were not exempt from sales tax under the provisions of Section 3 read with 6th schedule of the Sales Tax Act, 1990.
In the case of Sheikhoo Sugar Mills Ltd. and others (supra), one of us (Mr. Justice Iftikhar Muhammad Chaudhry, the Hon'ble Chief Justice), speaking for the Court, took the view that Bagassee was an intermediary process which was manufactured/produced during process of extrusion of sugarcane to obtain juice by the Sugar Mills which was consumed as a fuel against the value which was to be calculated at market price excluding the amount of tax if it was not otherwise determinable as such. Therefore, bagasse being a taxable activity was liable to sales tax under Section 3 of the Sales Tax Act, 1990.
In the case of Messrs Noorani Cotton Corporation versus The Sales Tax Officer "A" Ward, Lyallpur (PLD 1965 SC 161), it was held that keeping of manufactured goods by a manufacture was a sale by virture of Section 2 (15), Section 3(4)(6)(d) of the Sales Tax Act III of 1951, and the goods became liable to sales tax unless they could be shown to be exempted on some other ground. In Messrs Pak Cosmetic Products Karachi versus Pakistan through the Secretary, Ministry of Finance, Government of Pakistan, Islamabad and 3 others (1988 CLC 1772), Mr. Justice Ajmal Mian (as he then was in the High Court of Sindh), took the view that a process of packing or re-packing of a product was included in the process of manufacturing as defined by Section 2(f) of the Central Excises and Salt Act I of 1944. In State of Karnataka versus B. Raghurama Shetty etc. (AIR 1981 SC 1206), the Supreme Court of India held that rice and paddy were two different commodities and after conversion of paddy into rice the assessee was liable to pay sales tax.
In the case of Hunza Central Asian Textile and Woolen Mills Ltd. and others (supra) it was held that use and consumption of intermediary goods, in a restricted sense, could be treated as sales by legal fiction so as to bring such goods under the levy of sales tax although the final product was not subject to sales tax when sold. The use or consumption of intermediary goods in such circumstances had a rational nexus with sale.
In Adil Polyprophlene Products Limited and others versus The Federation of Pakistan through Secretary Finance, Federal Secretariat, Islamabad and others (2000 SCMR 1708), this Court held that the expression "goods" for the purpose of Section 3 of the Central Excises Act was as an item which could be used, brought and sold in the market. These were excisable goods although the same were claimed to be an intermediary products being vendible and having a distinct entity. It was further held that an intermediary product by itself was not ground for not charging the excise duty if the same was covered by the schedule to the Act.
The mere fact that the vegetable oil/ghee was exempt from central excise and sales tax would not exclude the production/manufacturing of polyethylene poly bags from the ambit of taxable activity or goods for the purpose of Central Excises Act and the Sales Tax Act. The High Court took the erroneous view of the matter in treating the manufacturing activity of the polyethylene poly bags as an inseparable part of the vegetable ghee/oil making and not a distinct product. The impugned judgment of the High Court is not sustainable at law.
For the foregoing reasons, these appeals are allowed. Consequently, the impugned judgment of the High Court is set aside. However, the parties are left to bear their own costs.
(Aziz Ahmad Tarar) Appeals accepted.
PLJ 2006 SC 858 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan and Raja Fayyaz Ahmad, JJ.
GOVERNMENT OF N.W.F.P. through THE SECRETARY EDUCATION DEPARTMENT, PESHAWAR and 2 others--Petitioners
versus
AMIL KHAN WAZIR DIRECTOR PHYSICAL EDUCATION GOVERNMENT POSTGRADUATE COLLEGE, ABBOTTABAD--Respondent
C.P. No. 779-P of 2003, decided on 8.11.2005.
(On appeal from the judgment dated 2.9.2003 passed by the learned N.W.F.P. Service Tribunal, Peshawar in Appeal No. 2088/2000).
North West Frontier Province Service Tribunal Act, 1974--
----S. 4--Constitution of Pakistan (1973), Art. 212--Service Tribunal's direction to concerned departments to formulate policy and service structure for the posts in question and also granting relief to respondent as prayed for by him--Legality--Jurisdiction--Respondents case and relief granted to him by Service Tribunal falls beyond scope of provisions of S. 4 of N.W.F.P. Service Tribunal Act 1974, within which Service Tribunal has to exercise its jurisdiction--Relief granted to respondent as prayed for including grant of BPS-18 with effect from specific date and move-over to B.P.S. 19 with all back benefits without examining his case on merits as to his entitlement to the grant of B.P.S. 18 with effect from specified date and move-over to B.P.S. 19 from due date is not sustainable in law--Service Tribunal thus, transgressed its authority vested in it to be exercised within purview of S. 4 of N.W.F.P. Service Tribunal Act, 1974, by directing administrative departments to formulate policy on the pattern of policy of Punjab Government--Respondent's appeal before Service Tribunal beyond 90 days from date of his representation was also time barred and thus, the same was in competent--Service Tribunal, judgment being in violation of law and beyond the scope of its authority could not be allowed to hold the field and thus, by converting petition for leave to appeal was disposed of by setting aside the impugned judgment.
[Pp. 864 & 865] A & B
2004 PLC (CS) 1213, ref.
Mr. M. Bilal, Sr. ASC for Petitioners.
Mr. Roohul Amin, ASC/AOR for Respondent.
Date of haring : 8.11.2005.
Judgment
Raja Fayyaz Ahmed, J.--This civil petition for leave to appeal has been directed against the judgment dated 2.9.2003 passed in Service Appeal No. 2088/2000 filed by respondent, Amil Khan Wazir, Director Physical Education, whereby his Appeal has been accepted and the departments of Education and Finance were directed to formulate a policy and service structure for the DPEs on the pattern of Punjab Government or Federal Government before 31st May 2004, failing which, the pattern/policy of Punjab Government would be deemed to have been adopted in letter and spirit.
"It is, therefore, most respectfully prayed that on acceptance of this appeal, the impugned action of the respondents being discriminatory, violative of the constitution, illegal, mala fide, without lawful authority and without jurisdiction and on such declaration, an appropriate order be issued to the respondents to allow BPS-18 to the appellant from 12.4.1978 and Move-over to BPS-19 falling on due date including with all back benefits."
The case of the respondent, as set up in the service appeal, has been that he was initially inducted in service as Director Physical Education in BPS-16 on 21.2.1974 after acquiring senior Diploma in Physical Education and subsequent thereto he qualified M.Sc. in Health and Physical Education on 12.4.1978 and later on move-over to BPS-18 was granted to him w.e.f. 1.12.1989. It has further been pleaded that the service structure of the Physical Education has elaborately been dealt with vide Education Policy issued by the Ministry of Education, Government of Pakistan in 1972 providing therein that the teachers belonging to Physical Education will be governed by the same terms and conditions of service besides salary and status including prospectus of promotion as teachers with comparable qualifications available to the teachers of the other disciplines. However, the case of the respondent was that inconsonance with the above quoted Education Policy and analogy, the Government of Punjab issued a Notification dated 10.9.1991, whereby the post of Director Physical Education (BPS-17), who possessed degree of MA in Physical Education have been re-designated as Lecturers in Physical Education and in relaxation of Rule-3 of the Punjab Civil Servants (Appointments & Conditions of Service) Rules, 1974 to absorb them in the General Cadre of Lecturers (Colleges) of Education Department with immediate effect, whereas; Petitioner No. 2, Director of Education (Colleges) NWFP, Peshawar in view of the Education Policy, 1973 issued by the Ministry of Education, Government of Pakistan and the above referred Notification of the Government of Punjab dated 10.9.1991, recommended and processed the matter for up-gradation of the post of Director Physical Education to BPS-18, vide recommendations dated 16.8.1995 and 3.9.1996 but with no result. The respondent after issuance of Education Policy in the year 1973 and the first recommendations made by Petitioner No. 2 on 16.8.1995 for up-gradation of the post of Director Physical Education to BPS-18 for the first time filed representation on 18.4.2000 to the Secretary Education, Government of NWFP, Peshawar requesting for re-designation of the post of Director of Physical Education, as Lecturer in Health and Physical Education/entitled to the benefits of 4-Tier Structure to which no response despite lapse of 90 days from the date of representation was filed, hence, he approached to the learned tribunal by filing service appeal.
Mr. M. Bilal, the learned Sr. ASC for the petitioners and Mr. Roohul Amin, the learned ASC for the respondent have been heard.
Mr. M. Bilal, the learned Sr. ASC strenuously contended that the learned Service Tribunal travelled beyond its jurisdiction and the specified parameters of law, has granted the relief as prayed for in the service appeal. According to the learned counsel, the learned Tribunal had no jurisdiction to grant the reliefs prayed for within the provided spheres of law, as laid down by Section 4 of the NWFP Service Tribunals Act, 1974 and to direct the departments of Education and Finance, Government of NWFP to formulate a policy and service structure for the DPEs on the pattern of Punjab Government or Federal Government before 31.5.2004 failing which the pattern/policy of the Government of Punjab would be deemed to have been adopted in letter and spirit. The learned ASC maintained that the matter does not relate to the terms and conditions of the service of the respondent in the light of the 4-Tier Structure notified Scheme issued by the Federal Government in respect of the teachers of General Cadre of the Federal Government Educational Institutions, Islamabad/Federal Area, whereby the service structure of the teachers of the General Cadre has been re-organized involving up-gradation/re-designation of teachers of the General Cadre, which by no stretch in terms could be made applicable to the case of the respondent nor the same can legitimately be enforced to the case of the respondent by approaching to the learned Service Tribunal, and; learned Tribunal cannot direct the Government to formulate policy and service structure for the DPEs on the pattern introduced by the Government of Punjab or Federal Government before a specified date failing which the pattern/policy Punjab Government would be deemed to have been adopted in letter and spirt. The learned Sr. ASC further contended that the learned Tribunal has mis-exercised the authority vested in it, as well as; passed the impugned judgment in violation of the law, liable to be set aside.
The learned ASC for the respondent contended that in the light of the Education Policy, 1973 issued by the Government of Pakistan as well as; in view of the service structure of the staff members of the Physical Education required to be re-organized or re-structured inline with the teachers of the General Cadre of the Federal Government Educational Institutions Islamabad/Federal Area, as made by the Notification dated 4.9.2000, which has also been followed by the Government of Punjab adversely affected the legitimate rights of the respondent to further promotions in higher grades being at par with the other teachers of the Federal Government Educational Institutions and the Education Department of the Government of Punjab, were constrained to file Writ Petition No. 379 of 2000 in the Peshawar High Court, Peshawar disposed of by the learned High Court on 6.6.2001 with the observation that in view of the Constitutional bar as contained in Article 212 writ as prayed for could not be issued and secondly the relief prayed for since involves a number of changes in the entire structure of the service cadre of lecturers qua interse seniority of the petitioners in addition to financial implications and the demand of the petitioners can be met with only after thorough examination by the concerned authorities with the further observation that the Provincial Government, to appoint a Committee to examine the entire case and, if possible to give them an adequate relief by making suitable changes in the service structure of the petitioners. After that according to the learned ASC, the petitioners in the writ filed before the Peshawar High Court approached to this Court by preferring Civil Petition No. 364-P/2001, disposed of by this Court vide order dated 7.5.2004, as not pressed in view of the statement made before this Court by the learned Advocate General, NWFP that summary for suitable changes in the service structure of the petitioners has been moved to the Chief Minister and its finalization, would entail pursuant to which sometime through Notification dated 25.10.2003, a Committee on the subject was constituted by the Government of NWFP. Higher Education Department, but with no positive result, hence; being constrained and having been left with no option, the petitioners approached to the learned Service Tribunal NWFP Peshawar seeking for appropriate reliefs. The learned ASC strenuously contended that the respondent has been meted out with discriminatory treatment alongwith the other staff members of the Physical Education though being entitled in view of his qualification and status to be treated alike with the lecturers and so on by designation, status and grades similarly placed and situated in the educational institutions of the Federal Government and the Education Department of the Government of Punjab. The learned ASC further submitted that the learned Tribunal appropriately on correct application of law passed the impugned judgment to which no exception can be taken. After concluding the arguments, Mr. Roohul Amin, the learned ASC for the respondent placed on record photo state copies of the order dated 6.6.2001 of the Peshawar High Court, Peshawar passed in W.P. No. 379/2000 (Sultan Mahmood etc. v. The Secretary Education etc), Notifications dated 25.10.2003, 16.12.2003 of the Government of NWFP, Higher Education Department, Peshawar, order dated 7.5.2004 of this Court passed in Civil Petition No. 364-P-2001 (Sultan Mahmood and others v. Province of NWFP through Secretary Peshawar and others), judgment dated 15.2.2005 of this Court passed in Civil Appeals Nos. 589 & 590 of 2000 (Muhammad Ismail v. Fazle Rehman) and Notification dated 10.5.2005 of the Government of NWFP, Higher Education, Archives and Libraries Department, Peshawar.
The contentions noted above put forth on behalf of the parties' learned counsel have been considered in the light of the impugned judgment and the documents/available on record including the photo state copies of the documents filed by the learned ASC for the respondents after the conclusion of his arguments.
It is worthwhile to note that the respondent was not a party to the legal proceedings launched through Writ Petition before the learned Peshawar High Court and this Court, however; the fact remains that in the light of the observations made by the learned Peshawar High Court in its order dated 6.6.2001 passed in W.P.No. 379/2000 referred to above Notification dated 25.10.2003 was issued by the Government of NWFP, Higher Education Department, whereby the Committee headed by the Secretary, Higher Education Department, as its Chairman was constituted to make recommendations in respect of the issue for re-desigantion of the post of Director Physical Education as Lecturer Physical Education and to merge them in the General Cadre by amending relevant rules, the implications involved in respect of the proposed amendments to be worked out for perusal and orders of the Competent Authority, which eventually submitted its recommendations on 11.12.2003 pursuant to which a sub-Committee was constituted to hold its meetings on weekly basis in order to examine the case of the service structure of the DPEs on the pattern of Punjab, Azad Kashmir and Federal Government and to submit reports and recommendations to the Secretary Higher Education Department for further proceedings in the case, within a period of one month from the date of issuance of Notification dated 16.12.2003. It appears that pursuant to the statement made by the learned Advocate General, NWFP before this Court in Civil Petition No. 364-P/2001, the matter was expedited. Copy of the judgment of this Court passed in Civil Appeal Nos. 589 & 590/2000 does not relate directly to the subject in hand. Eventually the Government of NWFP vide Notification dated 10.5.2005 accorded administrative approval for the placement of 25% of the sanctioned posts of Director Physical Education BPS-16 in BPS-17 and 25% of the BPS-17 posts in BPS-18. Further notifying that share of male and female DPEs will be worked out on the basis of their sanctioned strength.
As hereinabove noted, the learned ASC for the respondent after the conclusion of his arguments placed on record the above mentioned documents including copy of Notification dated 10.5.2005, nor the same was provided before hand to the other side. He also made no comments nor made any submissions in view of the Notification dated 10.5.2005 eventually issued by the Government of NWFP relating to the subject through which Grade-17 and Grade-18 respectively has been provided to the Directors Physical Education on ratio-wise basis without re-designating them as Lecturers Physical Education but as no arguments or contentions in respect of the last mentioned Notification was advanced by the learned counsel for the respondent nor during the arguments this Notification was brought to the notice of the Court, therefore, we refrain to take the same into consideration for the purposes of disposal of this petition.
Adverting to the contentions raised by the learned Sr. ASC for the petitioners, it may be seen that declaration was sought for from the learned Tribunal that refusal on the part of the concerned departments to re-designate and re-structure the service cadre of the Directors Physical Education in equal grades as compared to the College Lectures of General Cadre similarly placed and situated is illegal, malafide and violative of the Constitution and on such declaration an appropriate order be issued to the respondents in service appeal to allow BPS-18 to the respondents from 12.4.1978 and move-over to BPS-19 with all back benefits, obviously in the circumstances of the case falls beyond the scope of provisions of Section-4 of the NWFP Service Tribunals Act, 1974, within which the learned Tribunal has to exercise its jurisdiction, but the learned Tribunal on the one hand accepted the appeal by granting the relief as prayed for including the grant of BPS-18 to the respondent with effect from 12.4.1978 and move-over to BPS-19 with all back benefits without examining the case of the respondent on merits as to his entitlement to the grant of BPS-18 with effect from 12.4.1978 and move-over to BPS-19 from the due date inclusive of all consequential benefits, which consequently in our considered view on this score alone is not sustainable being violative of law; and on the other hand, the learned Tribunal transgressed the authority vested in it to be exercised squarely within the purview of Section-4 of the NWFP Service Tribunals Act, 1974 by directing the administrative departments of the Government to formulate a policy in line with the service structure notified for DPEs on the pattern of Punjab Government or Federal Government before the specified date failing which the pattern/policy of the Punjab Government would be deemed to have been adopted in letter and spirit. This could not have been done in the lawful exercise of powers by the learned Tribunal to substitute its own decision for that of the Government of NWFP to be taken and exercisable by it in accordance with the law after taking into account of the pros and cons of the matter involving financial and administrative implications including inter se seniority of the incumbents etc, as rightly so held by the learned Peshawar High Court in its above referred order.
Besides, the above discussed aspects of the case, it is worthwhile to note that according to the respondent's own showing in the year 1973, Education Policy was issued by the Ministry of Education, Government of Pakistan and after lapse of considerable period, the Government of Punjab inconsonance with the Education Policy issued notification dated 10.9.1991, whereby the post of Director, Physical Education (BPS-17), who possessed degree of M.A. in Physical Education were re-designated as Lecturers in Physical Education and in relaxation of Rule-3 of the Punjab Civil Servants (Appointments & Conditions of Service) Rules, 1974 to absorb them in the General Cadre of Lecturers (Colleges) of Education Department with immediate effect, whereas; for up-gradation of the post of Director of Physical Education to BPS-18, recommendations were made by Petitioner No. 2 dated 16.8.1995 and the respondent for the first time filed representation on 18.4.2000 to the Secretary Education, Government of NWFP, Peshawar requesting for re-designation of the post of Director Physical Education, as Lecturer in Health and Physical Education Department, as well as; entitled to the benefits of 4-Tier Structure Scheme to which no response despite lapse of 90 days from the date of representation was shown, so he approached to the learned Tribunal by filing Service Appeal, therefore, in our considered view the representation made by the respondent was barred by time and consequently; on this score too, the Service Appeal filed before the learned Tribunal would be incompetent. Such a proposition has been dealt with by this Court in its judgment passed in the case of State Bank of Pakistan v. Khyber Zaman and others 2004 PLC (CS) 1213, wherein it has been held that it is a well settled legal proposition that a service appeal would be incompetent in case the appeal before the departmental authority is time barred.
The learned Tribunal without applying its mind to the facts of the case, scope of powers exercisable by it under the law passed a sweeping judgment in violation of the law, which could not be allowed to hold the field on any ground. Consequently, the impugned judgment is set aside by converting this petition into appeal, which stands disposed of in the above terms, leaving he parties to bear their own costs.
(Aziz Ahmad Tarar) Order accordingly.
PLJ 2006 SC 865 [Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi and Mian Shakirullah Jan, JJ.
Haji NOOR AHMED--Appellant
versus
GOVERNMENT OF PUNJAB & others--Respondents
C.A. No. 2128 of 2004 and Civil Petition Nos. 1178-L/2004 and 1179-L of 2004, decided on 13.10.2005.
(On appeal from the judgment dated 2.4.2003 passed by the Punjab Service Tribunal, Lahore in Appeal No. 1098/98, Appeal No. 2555/03 and in Appeal No. 1426/03 dated 6.1.2004).
Punjab Education Department (Secondary Education) Recruitment Rules, 1987--
----Item No. 5--Constitution of Pakistan (1973) Art. 212--Petitioner's claim for promotion to BPS-18--Dismissal of petitioner's appeal by Punjab Service Tribunal, assailed--Exception was created in Rules of 1987 to protect right of promotion of SS Teachers in service of Education Department, Government of Punjab immediately before enforcement of Rules of 1987--SS Teachers being of two categories, graduate and post graduate, right of promotion of first category was protected against posts of Head Master/Deputy District Education Officer in B.PS-17 of promotion quota and SS Teachers of Second Category possessing Master degree in any division were made eligible for promotion to BPS-18 posts and could also be posted as subject specialist--No distinction was visible in Rules of 1987 so far as qualification of master degree for promotion to BPS-18 was concerned except that condition of second division was relaxed for a limited class of SS Teachers, who were in service prior enforcement of rules in question--Petitioner who was in service as SS Teacher prior to promulgation of Rules of 1987 and possessing master's degree in their division was eligible for promotion to BPS-18 and notwithstanding his retirement pending final decision of case, he would be considered for promotion for the post of Head Master/Deputy District Education Officer (BPS-18) as per his entitlement in accordance with law. [Pp. 869 & 870] A & B
Mr. Amir Alam Khan, ASC with Mr. Mahmood A. Qureshi, AOR for Appellant (in C.A. No. 2128/04).
Syed Sajjad Hussain Shah, A.A.G. Punjab, for Respondents (in C.A. No. 2128/04).
Syed Sajjad Hussain Shah, A.A.G., Punjab for Petitioner (in C.P. No. 1178-L/04).
Respondent in person.
Syed Sajjad Hussain Shah, A.A.G., Punjab for Petitioner (in C.P. No. 1179-L/04).
Mr. A.H. Masood, AOR for Respondent.
Date of hearing : 13.10.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court has been directed against the judgment dated 7.4.2003 passed by the Federal Service Tribunal, whereby the appeal filed by the present appellant for redressal of his grievance relating to the claim of promotion to BPS-18 under the Punjab Education Department (Schools Education) Recruitment Rules, 1987, was dismissed. The leave was granted in this appeal vide order dated 29.12.2004 as under:
"This petition arises out of the judgment dated 2nd April 2003 passed by Punjab Service Tribunal, Lahore whereby appeal filed by petitioner has been dismissed. Concluding para therefrom reads as under thus:--
"A copy of the relevant Rules have been placed on record. According to the rules, M.A. Second Division in the pre-requisite for promotion from BPS-17 to BPS-18. Since, the appellant is admittedly M.A. 3rd Division therefore, he is not entitled to promotion from BPS-17 to BPS-18. Even otherwise, the question for the fitness for promotion is to be determined by the Departmental Authority and not by this Court."
A perusal of above para from the impugned judgment indicates that petitioner has been non-suited on the ground that he was not eligible for promotion from BPS-17 to BPS-18 because he had passed M.A. examination in 3rd Division. Learned counsel by making reference to Item No. 5 from the Punjab Education Department (Schools Education) Recruitment Rules 1987, as amended from time to time, contended that requirement of possessing degree at least of 2nd Division in M.A. is meant for those candidates who had applied for initial recruitment against 33% quota, whereas candidates whose cases were covered under 67% of promotion quota, amongst SSTs for the posts of Head Master/Head Mistress are not required to at least possess 2nd Division in M.A. For reference Item No. 5 pointed out by the learned counsel is reproduced herein below:--
1,2,3
Headmaster/Head-mistresses High Schools with enrolement less than 1500
Deputy District Education Officer/Subject-Specialists. Elementary College and Higher Secondary School (BPS-17).
4,5,6
(i) M.A./M.Sc (2nd Div) provided that for those who are M.A. (English) (3rd Div(c) the same condition shall apply as mentioned in column (5)
(ii) B.Ed. (2nd Div (C)
(iii) For promotion to post of Subject-Speicalists, the above mentioned qualification in the relevant subject.
7,8
(i) 33% initial recruitment
(ii) 67% by promotion from amongst SSTs.
Note:1: SSTs on strength of the Education Department immediately before enforcement of these rules, will be eligible for promotion as Head Master/Headmistresses/Deputy District Education Officer without having M.A./M.Sc. Degree but shall not be eligible for posting as Subject-Specialists or for promotion to the posts in BPS-18 without possession M.A./M.Sc./M.Ed/M.A. (Education).
Note.II: Subject-Specialists shall not be eligible for posting as Head Master/Head Mistress/Deputy District Education Officer shall not be eligible for posting as Subject-Specialist unless they have served as such for a period of ten years.
After hearing learned counsel for petitioner and having gone through the impugned judgment carefully, we are of the opinion that contention so raised by the learned counsel, in view of above provisions of the schedule to the Rules, requires consideration as such leave to appeal is granted.
Learned counsel further contended that on the same subject, learned Service Tribunal had taken a different view in some of the cases, wherein candidatures of the candidates, who possess degree of M.A. in 3rd Division, have been rejected. In this behalf he made reference to one of the judgments, which has been challenged before this Court in Civil Petition No. 1178 of 2004. He further contended that said CPSLA be heard and disposed of along with the appeal arising out of instant petition.
Order accordingly. As short point is involved in the matter and petitioner is going to be retired on attaining the age of superannuation, therefore, office is directed to fix the appeal arising out of instant petition along with above noted petition for leave to appeal, after two months at Islamabad, subject to soliciting necessary approval from Hon'ble Chief Justice."
The claim of the appellant was that he was in service as SS Teacher prior to the promulgation of Punjab Education Department (Secondary Education) Rules, 1987, and while possessing master degree in third division was entitled for promotion to the post of Head Master/Deputy District Education Officer (BPS-18) in terms of Note-I to the above rules as amended from time to time but he was wrongly deprived of the legitimate right of promotion and to get the retirement benefit of higher grade. The stance of the department on the other hand, was that the qualification provided in the rules for promotion to BPS 18 was MA/M.Sc. second division and appellant having not possessed the requisite qualification, was not eligible for promotion. The appeal of the appellant was dismissed by the Tribunal on the ground firstly that he was not possessing the requisite qualification for promotion to BPS-18 post and secondly, the determination of the question relating to the fitness or otherwise for holding a particular post was beyond the jurisdiction of Tribunal under Section 4(1)(b) of the Punjab Service Tribunal Act, 1974.
The learned counsel for the appellant with reference to Note-I in Column No. 7 of the ibid rules, has contended that notwithstanding the qualification of Second Division M.A./M.Sc. prescribed for appointment/promotion to BPS-18 posts, the SS Teachers who were in service prior to the enforcement of the Punjab Education Department (Schools Education) Rules, 1987, even if where not holding the Master Degree, would be entitled for promotion as Head Master/Deputy District Education Officer and their ineligibility would be confined only to the extent of posting as Subject Specialist or for promotion to BPS-18 posts but if such a SS Teacher was holding the M.A. /M.Sc. degree in any division, he would be eligible for promotion to BPS-18 post as Headmaster/Deputy District Education Officer and could also be posted as Subject Specialist. The learned counsel has submitted that in the connected petition Bearing No. 1178-L/04, (Government of Punjab through Secretary Education vs. Ahmed Yar Butta), the Tribunal on the basis of opinion of S&GAD (Regulation Wing), Government of Punjab, vide judgment dated 6.1.2004 held that SS Teachers with MA/M.Sc. third Division, who were in the service of Government of Punjab before the promulgation of 1987 rules, were eligible for promotion to BPS-18 as Headmaster/Deputy District Education Officer and the requirement of MA/M.Sc. Second Division was not applicable to this category of SS Teachers.
The learned AAG, on the other hand, has contended that the basic qualification of M.A./M.Sc. second division has been prescribed in the rules for the posts of Head Master/Deputy District Education Officer, BPS 18, and for Subject Specialist without any distinction and relaxtion in favour of SS Teachers referred in Note-I to the above rules was only to the extent of posts of Head Master/Deputy District Education Officer BPS 17 of the promotion quota.
The careful examination of the above rules would show that by virtue of Note-I an exception was created in rules to protect the right of promotion of SS Teachers in service of education department, Government of Punjab, immediately before the enforcement of the rules in question. These SS Teachers were of two categories, graduate and postgraduate. The right of promotion of the first category of SS Teachers, was protected against the posts of Head Master/Deputy District Education Officer in BPS-17 of promotion quota and SS Teachers of second category possessing master degree in any division, were made eligible for promotion to BPS-18 posts and could also be posted as Subject Specialist. There was no ambiguity in the rules to suggest that the exception created in the rules, would be confined only to the extent of posts of Head Master/Deputy District Education Officer other than BPS-18 posts of promotion quota. It may be seen that there is no distinction in the rules so far as the qualification of master degree for promotion to BPS-18 is concerned except that the condition of second division was relaxed for a limited class of SS Teachers, who were in service prior to the enforcement of rules in question. The purpose of this relaxation was to protect their right of promotion and most probably reason for exclusion of the strict application of condition of second division Master Degree for the this category of SS Teachers was that in the old promotion policy, there was no such condition of second division M.A./M.Sc. degree for promotion to BPS-18 posts of Headmaster/Deputy District Education Officer. It may be pointed out that placing a different construction on the rules, would amount to deprive this limited class of SS Teachers from their legitimate right of promotion.
The Tribunal in a similar case, titled Ahmed Yar vs. Secretary Education, Government of Punjab, supra, on the same subject on the basis of an opinion of S&GAD Department, Government of Punjab has taken a different view of the matter and we find that this view of the Tribunal was quite in consonance with law.
In the light of foregoing discussion, we hold the appellant was eli-gible for promotion to BPS-18 under the Punjab Education Department (Se-cond Edition) Recruitment Rules, 1987 and notwithstanding his retirement pending final decision of the case, he would be considered for promotion for the post of Head Master/Deputy District Education Officer (BPS-18) as per his entitlement in accordance with law. In view thereof, we set side the judgment of the Tribunal and allow this appeal with no orders as to costs.
The connected two Petitions Bearing Nos. 1178-L and 1179-L of 2004 are dismissed.
(Aziz Ahmad Tarar) Order accordingly.
PLJ 2006 SC 870 [Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi and Mian Shakirullah Jan, JJ.
MUHAMMAD SALIM and another--Petitioners
versus
STATE and others--Respondents
Crl. P. No. 299 of 2005 & 377-L of 2005, decided on 26.10.2005.
(i) Constitution of Pakistan, 1973--
----Art. 185--Interference in discretionary power of High Court--Held: Supreme Court is normally reluctant to interfere in the discretion exercised by High Court in bail matters but if it is exercised in departure to the settled principles of criminal administration of justice, the reluctance would result in miscarriage of justice. [P. 874] B
(ii) Criminal Procedure Code, 1898 (V of 1898)--
----S. 426(1)--Pakistan Penal Code (XLV of 1860), S. 302--Constitution of Pakistan, 1973--Art. 185(3)--Suspension of sentence and grant of bail--Held: Power of appellate Court u/S. 426(1) is not limited and the Court might suspended the sentence of a convicted in an appropriate case for good and sufficient reasons but such power is not wider than that of u/S. 497 Cr.P.C.--Grant of bail u/S. 426(1) Cr.P.C. with the consideration of ascertaining the question of guilt or innocence on merits through appraisal of evidence is not justified as bail could be allowed only on the basis of tentative assessment of evidence. [P. 873] A
(iii) Criminal Procedure Code, 1898 (V of 1898)--
----S. 426(1)--Constitution of Pakistan 1973--Art. 185--Suspension of sentence--Held: Appellate Court would not go deep into evidence for the purpose of suspension of sentence by giving the reasons which might amount to express its views on merits of the case prejudicing the interest of any party. [P. 874] C
(iv) Criminal Procedure Code, 1898 (V of 1898)--
----S. 426(1)--Suspension of sentence--Held: Sentence could not be suspended on the basis of defence version, minor contradictions and discrepancies of prosecution evidence, without detailed scrutiny of evidence which could not be done by Supreme Court at that stage.
[P. 875] D
Mr. Muhammad Hussain Chachar, ASC for Petitioner (in Crl. P. 299/2005).
Rana M. Arshad ASC & Mr. A.H. Masood, AOR for Complainant.
Rana M. Arshad, ASC & Mr. A.H. Masood, AOR for Petitioner (in Crl. P. 377-L) 2005.
Mr. Muhammad Hussain Chachar, ASC for Complainant (in Crl. P. 377-L/2005)
Dil Muhammad Tarar, ASC for State.
Date of hearing : 26.10.2005.
Judgment
Muhammad Nawaz Abbasi, J.--These two connected petitions involving common questions of law and facts are proposed to be disposed of through this single judgment.
In Criminal Petition No. 299 of 2005, Muhammad Saleem, petitioner has sought leave to appeal against the order dated 15.6.2005 passed by Lahore High Court, Lahore, whereby his application for suspension of sentence under Section 426(1) Cr.P.C. was dismissed and in Criminal Petition Bearing No. 377-L of 2005, Jamshed Ali, complainant, has sought leave to appeal against the order of the High Court of even date, by virtue of which Rao Ali Shehr Yar respondent, was allowed bail by suspension of his sentence under Section 426(1) Cr.P.C.
Muhammad Saleem and Rao Ali Shehr Yar, alongwith others, were tried for the charge of murder of Shakir Ali, deceased, by a learned Additional Sessions Judge, Faisalabad and having been found guilty of the charge, were convicted and sentenced to imprisonment for life with direction to pay compensation to the legal heirs of the deceased vide judgment dated 20.11.2005. The assailants allegedly armed with lathies, opened attack on the deceased and in consequence thereto, he sustained six injuries on the sensitive part of the body, out of which the following two injuries fatal to life, were attributed to the above named two accused:--
"AL/W 1 cm x 1/2 cm on top of head 1/2 cm right to midline (correspond to Injury No. 2).
A swelling 5 cm x 4 cm on left side of head in front of surgically stitched wound `A' (correspond to MLC Injury No. 4)."
The occurrence in the present case had taken place in an ahata owned by Jamshed Ali, complainant, situated in Chak No. 3GB in the area of Police Station, Thekrewala District Faisalabad, which was in joint possession of Ghulam Muhammad and his son Muhammad Boota as licensee. The immediate cause of the occurrence, was that complainant having suspected the occupants of ahata to have misappropriated certain articles belonging to him lying in the ahata when alongwith the witnesses went to the ahata to inquire from them about the articles in question, the accused named in the FIR, armed with deadly weapon suddenly opened attack on the deceased in consequence to which, he sustained injuries. The prosecution case was that the companions of the above named two accused made indiscriminate firing at the spot whereas they inflicted injuries to the deceased with Lathies on sensitive part of his body which proved fatal to his life. The real motive for the occurrence was that real brother of Rao Ali Shehr Yar was an accused in a case registered against him under Offence of Zina (Enforcement of Hadood) Ordinance, 1979, and Shakir Ali deceased was a prosecution witness against him in the said case.
The sentence of the Rao Ali Shehr Yar, respondent in Cr.P. No. 377-L/2005 was suspended by the High Court and he was granted bail mainly for the reason that there was an apparent conflict of the medical evidence with the ocular account as the injuries in question attributed to the two accused, in fact were the result of single blow attributed to Muhammad Saleem and the role of causing of an independent injury to the deceased by Ali Shehr Yar was not free from doubt. The learned Judge in the High Court having assessed the evidence concluded as under:
"10. The case of the prosecution was that Muhammad Saleem accused gave successive blows to the left side of head of Shakir Ali. Thereafter, Rao Ali Shehr Yar, statingly, gave two blows with "Lathi" to the same part of the head of the victim. The medical evidence has not indicated that deceased had received successive blows to his head, rather, the replies given by medical Officer-PW 2, during cross-examination, indicated that it was only one injury, which was received by deceased. Rao Ali Shehr Yar, apparently, was convicted by improper appreciation of record. After tentative assessment of evidence, it can safely be concluded that a second view about conviction and sentence awarded to him is quite possible. He has a case for suspension of sentence awarded to him. Therefore, I am inclined to allow the application to the extent of Rao Ali Shehr Yar accused. The sentence awarded to him by Addl. Sessions Judge by order dated 20.4.2005 in case FIR No. 287 dated 19.6.2000 under Section 302(b) PPC is hereby suspended. Rao Ali ShahR Yar-petitioner shall be released from custody during pendency of the appeal, subject to furnishing bail bonds in the sum of Rs. 1,00,000/- with two sureties, each in the like amount, to the satisfaction of the trial Court."
Learned counsel for Jamshid Ali, petitioner in Cr.P.C. No. 377-L/2005 has contended that High Court having appraised the evidence in detail, suspended the sentence of Ali Shehr Yar, respondent under Section 426(1) Cr.P.C. and virtually decided the appeal on merits by holding that the two fatal injuries on the head of deceased were result of single blow which was attributed to Muhammad Saleem.
Learned counsel for the respondent on the other hand has submitted that the conflict of medical evidence with ocular account, was apparent on the face of record and in view thereof, the High Court taking notice of the major contradictions in the prosecution evidence seriously reflecting upon the truthfulness of the eye-witnesses' account of the prosecution suggesting strong possibility of ultimate acquittal of the accused, proceeded to suspend his sentence strictly in accordance with the principle laid down by this Court for exercise of the power under Section 426(1) Cr.P.C. in such a case of doubtful character.
There is no cavil to the proposition that appellate Court in exercise of its power under Section 426 Cr.P.C. may in a suitable case, suspend the sentence of a convict and grant him bail pending disposal of his appeal and notwithstanding any material difference in the principle governing for grant of bail under Sections 497 and 426 Cr.P.C. the consideration for suspension of sentence and grant of bail pending trial may not be the same, therefore, the distinction must be adhered to for exercise of power under the above provisions in proper manner. The power of appellate Court under Section 426(1) Cr.P.C. is not limited and the Court may, pending disposal of an appeal, suspend the sentence of a convict in an appropriate case in its discretion for good and sufficient reasons but this power of suspension of sentence and grant of bail is not wider than that of under Section 497 Cr.P.C. and unless it is shown that conviction is based on no evidence or being based on an inadmissible evidence, is not ultimately sustainable, the grant of bail under Section 426(1) Cr.P.C. with the consideration of ascertaining the question of guilt or innocence on merits through appraisal of evidence is not justified as the bail either under Section 497 or 426(1) Cr.P.C. could be allowed only on the basis of tentative assessment of evidence.
The High Court in the present case, after appraisal of evidence in detail, having held that ocular account was in conflict to the medical evidence, granted bail to Ali Shehr Yar with the observation that the role of causing injuries to the deceased assigned to him was not supported by medical evidence as the two injures on the head of deceased, declared fatal to his life were the result of single blow attributed to Muhammad Saleem and the injury attributed to Ali Shehr Yar was not the result of an independent blow. The observation to the extent of more than one injury can be result of single blow may be tentative in nature but the conclusion that Ali Shehr Yar having not caused the fatal injury to the deceased, did not incur vicarious liability, would certainly be considered a verdict of acquittal on merit pending disposal of appeal. This Court normally is reluctant to interfere in the discretion exercise by the High Court in bail matters but if the discretion is exercised in departure to the settled principles of criminal administration of justice, the reluctance to interfere would result in miscarriage of justice. The witnesses have clearly stated that Muhammad Saleem, petitioner in Crl.P. No. 299 of 2005 and Rao Ali Shehr Yar, respondent in Crl. P.377-L/2005, caused one injury each to the deceased on his head and according to the medical evidence deceased sustained two independent fatal injuries on his head. The finding of the trial Court was also that the two fatal injuries sustained by the deceased on head were caused by the above named two accused and unless it could be shown from the evidence that the finding of the trial Court was in utter disregard to the factual position on the record, the mere possibility of another view of the evidence would not be a valid and sufficient ground to suspend the sentence under Section 426(1) Cr.P.C. and grant bail to a life convict pending disposal of his appeal against the conviction on capital charge. There is difference between tentative assessment and deep appraisal of evidence and rule is that appellate Court may on the basis of tentative assessment for reason to be recorded, suspend the sentence and grant bail to a convict but the exercise of the power of grant of bail through suspension of sentence on the basis of deep appraisal of evidence is against the principle governing the exercise of powers under Section 426(1) Cr.P.C. This is settled law that appellate Court should not go deep into the evidence for the purpose of suspension of sentence by giving the reasons which may amount to express its views on the merits of the case prejudicing the case of one or the other party in appeal.
In the light of foregoing reasons we are of the considered view that Rao Shehr Yar, Respondent in C.P No. 377-L/2005 has been granted bail under Section 426(1) Cr.P.C. in improper exercise of discretion.
Muhammad Saleem, petitioner in Criminal Petition No. 299 of 2005 has sought suspension of sentence on the grounds firstly that there was material contradiction of the medical evidence with the ocular account which would lead to a definite result of ultimate acquittal of the petitioner and secondly the injuries sustained by the accused, would strongly suggest that defence plea was more plausible and near to the truth, therefore, there was every possibility of his success in appeal. In nutshell the learned counsel on the basis of defence version, and the minor contradictions and discrepancies in the prosecution evidence, made an attempt to make out a case for suspension of sentence. We are afraid, the grounds taken in support of this petition for suspension of sentence and grant of bail cannot be appreciated without detail scrutiny of evidence and such an exercise cannot be undertaken by this Court at this stage.
In the light of foregoing reasons we dismiss Criminal Petition No. 299 of 2005 and refuse leave in this petition whereas Criminal Petition No. 377-L of 2005 is converted into an appeal and allowed. The bail granted to Ali Shehr Yar, respondent, in by the High Court under Section 426(1) Cr.P.C. is cancelled.
(Javed Rasool) Order accordingly.
PLJ 2006 SC 875
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan and Khalil-ur-Rehman Ramday, JJ.
Mst. ATTA ELAHI--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, MUZAFFARGARH and 4 others--Respondents
Civil Petition No. 883 of 2004, decided on 28.11.2005.
(On appeal from the judgment dated 23.12.2003 passed by the Lahore High Court, Multan Bench, Multan in Writ Petition No. 216-PR of 1996)
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 35(2)--Constitution of Pakistan, 1973--Art. 185(3)--Right of pre-emption--Talb-i-Ishhad was not mentioned in plaint--Effect--Petition was time barred of 38 days for leave to appeal plea raised by pre-emptor for condonation of delay due to obtaining copies of trial Court was not tenable--Validity--High Court rightly declined to review the suit for reason that facility of proving Talb-i-Ishhad was not available due to being a question of fact having not been alleged in plaint--Plea raised by pre-emptor for condonation of delay was not tenable as the period which was not computed under law was spent in obtaining copies of impugned order that the petitioner might required--Delay was not condoned by Supreme Court--Leave to appeal was refused. [P. 876] A, B & C
Pir Muhammad Asif Rafi, ASC, for Petitioner.
Nemo for Respondents.
Date of hearing : 28.11.2005.
Judgment
Sardar Muhammad Raza Khan, J.--Mst. Atta Elahi seeks leave to appeal against the judgment dated 23.12.2003 of Lahore High Court, Multan Bench whereby her writ petition has been dismissed.
"(2) Notwithstanding anything in Sections 13 and 30, in respect of the suits mentioned in sub-section (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor establishes that he had made Talb-i-Ishhad in the presence of two truthful witnesses."
Not only that we agree with the observation made by the learned High Court but also are of the view that the Shariat Appellate Bench of this Court in Haji Rana Muhammad Shabbir Ahmed Khan's case (PLD 1994 SC 1) has declared the provisions of Section 35(2) of Punjab Pre-emption Act, 1991 repugnant to the injunctions of Islam, in so far as it exempts the suit of pre-emption instituted or pending between Ist day of August 1986 and 28th March 1990 from the requirements of talb-i-muwathibat and because it has extended the period of limitation for such suits to one year.
The instant petition is also time barred by 38 days. The ground for condonation, to the effect that the time was lost in obtaining copies of Civil Court record, is also not tenable. The period which is not computed under the law is the one spent in obtaining the copies of impugned judgment or order and not for any other copies that the petitioner might require.
Consequently, there being no force in the hopelessly time barred petition, it is hereby dismissed and leave to appeal refused.
(Rafaqat Ali Sohal) Leave refused.
PLJ 2006 SC 877
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ.
MUSHTARI KHAN--Petitioner
versus
JEHANGIR KHAN--Respondent
Civil Petition No. 1955 of 2005, decided on 28.3.2006.
(On appeal from judgment dated 25.4.2005 passed by Peshawar High Court, Peshawar in Civil Revision No. 292/2005).
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Constitution of Pakistan, 1973, Art. 185(3)--Jurisdiction of Court--Suit for specific performance was decreed by trial Court--Appeal accepted--Civil revision was also dismissed--Assailed--Legality--Suit of the petitioner was reversed by Appellate Court and while reversing same no proper reason have been advanced--High Court had erred in dismissing revision by holding that it cannot be invoked against conclusion of law or facts which did not in any way affect the jurisdiction of the Court--It is well settled that non-reading or mis-appreciation of evidence also amounts to an illegality to be examined under S. 115 CPC by revisional Court--Case remanded to High Court for disposal of revision petition in accordance with law. [P. 878] A & B
Hafiz Saeed Ahmad Sheikh, ASC with Ch. Akhtar Ali, AOR for Petitioner.
Sardar Liaqat Ali, ASC with Mr. Ejaz Muhammad Khan, AOR for Respondent.
Date of hearing : 28.3.2006.
Order
Abdul Hameed Dogar, J.--This petition is directed against the Jehangir dated 25.4.2005 passed by a learned Single Judge of Peshawar High Court, Peshawar whereby Civil Revision No. 292/2005 was dismissed and the judgment of Appellate Court was maintained.
Petitioner has filed a suit against his brother namely respondent Jahangir Khan for specific performance of contract in respect of land described in the plaint. It was also averred in the plaint that in pursuance of exchange deed dated 10.2.1999 the parties agreed to exchange their respective lands alongwith possession. Subsequently, respondent resiled which led the petitioner to file suit. Learned trial Court decreed the suit vide judgment dated 3.3.2004. Appeal preferred against the same was accepted by learned Additional District Judge, Kohat vide judgement dated 13.1.2005. Feeling aggrieved petitioner preferred Civil Revision before Peshawar High Court which was also dismissed by impugned judgment dated 25.4.2005.
We have heard Hafiz Saeed Ahmed Sheikh, ASC for petitioner and Sardar Liaqat Ali, ASC for respondent at length and have minutely gone through the judgments of all the three Courts.
At the outset Hafiz Saeed Ahmed Sheikh, learned counsel for the petitioner contended that the judgments of the Appellate Court as well as of the Revisional Court are not sustainable as both the Courts have not dilated upon the matter in its true perspective. He criticized the judgment of the High Court and referred to para-8 in which the learned High Court refused to exercise jurisdiction and conclusions drawn by it are against law and facts. He further contended that Appellate Court has ignored the provisions of Order XLI, Rule 31 CPC while writing the judgment. According to him the judgment of the trial Court was reversed by the Appellate Court without advancing any reasons and pointing out as to which evidence was misread or non-appreciated by the trial Court. Neither points for determination were framed nor any decision thereon was given. Similarly learned High Court while dismissing the revision has also not considered this aspect of the case. Therefore, he submitted that the matter may be remanded to the High Court for proper appreciation of the evidence and disposal in accordance with law.
Sardar Liaqat Ali, controverted the above contentions of learned counsel for the petitioner and contended that the judgment of the Appellate Court as well as of the High Court are in accordance with law as both the Courts have appreciated the evidence properly.
Admittedly the judgment of the trial Court decreeing the suit of the petitioner was reversed by the Appellate Court and while reversing the same no proper reasons have been advanced. The High Court has erred in dismissing the revision by holding that it cannot be invoked against the conclusion of law or facts which do not in any way affect the jurisdiction of the Court. It is well settled that non-reading or mis-appreciation of evidence also amounts to an illegality to be examined under section 115 CPC by revisional Court.
In view of above this petition is converted into appeal and is allowed. The impugned judgment of the High Court is set aside and the case is remanded to the High Court for disposal of the revision petition in accordance with law. No order as to costs.
(Rafaqat Ali Sohal) Case remanded.
PLJ 2006 SC 879
[Appellate Jurisdiction]
Present: Rana Bhagwandas, Khalil-ur-Rehman Ramday and Nasir-ul-Mulk, JJ.
UNIVERSITY OF THE HEALTH SCIENCES, LAHORE and others--Petitioners
versus
Sheikh NASIR SUBHANI and others--Respondents
Civil Petition No. 314 of 2005, decided on 27.1.2006.
(On appeal from the judgment and order of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 3.12.2004 passed in W.P. No. 2896 of 2004)
Educational Institution--
----Constitution of Pakistan, 1973--Art. 185(3)--Vice--Chancellor reiterated request for award of grace marks--In pursuance of office order--Grace marks to failed candidate--Vice-Chancellor of University has statutory power under Statute of University or any other law--Validity--Syndicate of University might have discretion but Vice-Chancellor alone would not be competent to exercise all power of Syndicate and benevolently grant grace marks to the failed candidate in theory as well as practical subjects--Once a student failed to qualify First Professional MBBS Examination and availed of three chances he would not be entitled to promotion to the Second Professional MBBS Class--Such culture of seeking award of grace marks was against settled principles of good governance and improving the higher standards of professional education more particularly medical education, because doctors were required to deal with precious human lives--Medical practitioners were expected to be fully equipped with professional skill, knowledge and expertise in medical discipline to practice the profession to deal with patient and looking after their health and hygiene--Held: High Court was not bound to exercise its jurisdiction which is always equitable and discretionary in favour of respondent in given facts and circumstances--Appeal accepted. [P. 881] A
Mr. Shahid Karim, ASC for Petitioners.
Mr. Shoukat Aziz Siddiqui, ASC with Mr. Arshad Ali Chaudhry, AOR for Respondent No. 1.
Date of hearing : 27.1.2006.
Judgment
Rana Bhagwandas, J.--This petition for leave to appeal is directed against the Lahore High Court judgment dated 3.12.2004, allowing respondents' writ petition seeking following reliefs:--
"It is, therefore, respectfully prayed that writ may very kindly be issued and the Respondents Nos. 1 and 2 may very amiably be directed to award five grace marks to the petitioner in pursuance of Office Order dated 23.1.2004 issued by the Respondent No. 1.
It is further prayed that the Respondent No. 3 may very graciously be directed to declare the result of the petitioner after grant of five grace marks."
Respondent No. 1 was admitted to the First Professional MBBS Class at Rawalpindi Medical College, in the academic Session 2001-2002. He appeared in the First Professional MBBS Annual Examination, 2003, held in October 2003 and passed in Islamiat and Pakistan Studies. Subsequently, he appeared in supplementary examination held in January 2004 and passed the subjects of Biochemistry and viva of Anatomy and Physiology. His earlier with petition for award of five extra grade marks in the failure subjects was disposed of by the Lahore High Court vide order dated 15.9.2004, with direction to Respondent No. 1 to approach the Vice-Chancellor of the University, with a written application. Accordingly, he approached the Vice-Chancellor reiterating his request for award of five grace marks in pursuance of office order dated 23.01.2004 issued by the Vice-Chancellor himself. The respondent being dissatisfied with the last order passed by the Vice-Chancellor, filed second writ petition before the Lahore High Court, seeking similar relief, which has been allowed vide judgment dated 3.12.2004, hence this petition for leave to appeal.
It is inter-alia contended that the office order dated 23.1.2004, heavily been relied upon by the respondent in support of his writ petition was considered by a Division Bench of the Lahore High Court, in Writ Petition No. 5617 of 2005, decided on 20.4.2005 and the same has been struck down by the High Court with the following observations:--
"9. Office order dated 23.1.2004 and the judgment by the learned Single Judge in Chamber of this Court in Writ Petition No. 2896-2004 have no legal basis, as Vice-Chancellor could not confer 5 grace marks in each subject, in violation of the controlling Regulation of the Calander and thus, we feel overselves handicapped to contribute to this view that such grace marks should be given to the students in each failing subject. If the view canvassed by the petitioner is adopted, the result would be annulling the Regulations which is not the function of the Courts. In like circumstances, this Court took off its hands from interfering in executive orders, in the judgment in the case of Zahoor Ahmed Azhar vs. Islamia University, Bahawalpur through Vice-Chancellor and 4 others (PLD 1998 Lahore 324). Besides it, law is not settled about the proposition that the acts have to be done in the manner prescribed and in no other method. Office order dated 23.1.2004 was un-authorisedly issued, hence, the same did not confer any right on the petitioners to claim that the same treatment be met with them on the basis thereof. Judgment if needed in support of this principle of law, reference can be made to the case of Jalil Ahmad vs. Public Service Commission and another (1998 CLC 435)".
Upon hearing learned counsel for the parties, we entertain serious doubts whether the Vice-Chancellor of University has statutory powers under the statute of the University or any other law for the time being in force to grant grade marks in each subject and thereby deteriorate the quality of education which has already gone below standard. The Syndicate of a University might have certain discretion but the Vice-Chancellor alone, in our opinion, would not be competent to exercise all the powers of the Syndicate and benevolently grant grace marks to the failed candidates in theory as well as practical subjects. It is well settled that once a student fails to qualify First Professional MBBS Examination and avails of three chances he would not be entitled to promotion to the Second Professional MBBS Class. Even otherwise, this culture of seeking award of grace marks is against the settled principles of good governance and improving the higher standards of professional education more particularly medical education, because the doctors are required to deal with precious human lives. Medical practitioners are expected to be fully equipped with professional skill, knowledge and expertise in the medical discipline to practice the profession, to deal with the patients and looking after their health and hygiene. On no principle or authority, therefore, in our view, the impugned judgment of the High Court can be sustained. To our mind, the High Court was not bound to exercise its writ jurisdiction which is always equitable and discretionary in favour of the respondent in the given facts and circumstances of the case.
For the aforesaid facts, circumstances and reasons, we convert this petition into appeal and on acceptance, set aside impugned judgment of the High Court dated 03.12.2004, with no order as to costs.
(Rafaqat Ali Sohal) Petition accepted.
PLJ 2006 SC 881
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ and Mian Shakirullah Jan, J.
MUHAMMAD ILYAS KHOKHAR and 24 others--Petitioners
versus
FEDERATION OF PAKISTAN and others--Respondents
Civil Petitions Nos. 2002, 2023, 2024 to 2046 of 2004, decided on 20.3.2006.
(On appeal from the judgment dated 08.07.2004 passed by the Federal Service Tribunal in Service Appeals Nos. 269(P) CS/2000, 270(R) CS/2000, 61(P) CS/2000, 62(P) CS/2000, 718(R) CS/2000, 64(P) CS/2000, 260(P CS/2000, 261(P) CS/2000, 262(P) CS/2000, 263(P) CS/2000 to 268(P) CS/2000, 60(P) CS/2000, 714(R) CS/2000, 717(R) CS/2000, 63(P) CS/2000, 719(R) CS/2000, 720(R) CS/2000, 736(R) CS/2000, 737(R) CS/2000, 738(R) CS/2000, 739(R) CS/2000).
Civil Servants Act, 1973--
----Ss. 3(ii) & 9(b)--Constitution of Pakistan, 1973--Art. 212--Leave to appeal--Conflict with provision--Jurisdiction to condone of delay--Establishment Division Constituted Account Group and amended later on--Auditor-General modified conditions regarding to promotion to higher grade--Juniors possessing such qualifications were inducted--Appeal accepted by Service Tribunal--Assailed--Auditor--General has got no lawful authority to lay down the policy unless it was approved by Establishment Division in accordance with Rules of Business as well as relevant law--Held: Service Tribunal had jurisdiction to condone delay if beyond the limitation and interference by Supreme Court in order of Service Tribunal condoning delay in filing appeal before it would not advance cause of justice. [Pp. 882 & 884] A, B & C
Ch. Mushtaq Ahmed Khan, Sr. ASC with Mr. M.S. Khattak, AOR for Petitioners.
Mrs. Naheeda Mehboob Elahi, Dy. A.G., Mr. Fazal Elahi Siddiqui, ASC with Ch. Akhtar Ali, AOR for Respondents.
Date of hearing : 20.3.2006.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--Petitioners seek leave to appeal against the judgment dated 8.7.2004.
Facts necessary for disposal of the instant petitions are that as back as on 23.1.1974, the Establishment Division constituted Accounts Group. Later on the relevant O.M. was amended on 3.3.1976 wherein mode of induction in the IDC was specified. The system of mode of induction/promotion as per the quota specified therein continued till 1999 when vide Circular No. 1016-DIR(A)/3-1/Induction/97 dated 8.9.1999, the Auditor General modified some of the conditions noted therein with regard to the promotion to the higher grade. As a result whereof, the Officers of the Office of Auditor-General who were not holding qualifications like ICMA, ICAP/MBA/M. Com/M.Sc, (Computer Science) had been denied the chance of promotion. Consequently, their junior who were possessing such qualifications were inducted in the IDC leaving behind some of the seniors though they had long service at their credit and age-wise they were also seniors.
Thus, being aggrieved, from the decision of the department, they preferred appeals before the Service Tribunal which have ultimately been accepted vide impugned judgment, concluding para therefrom is reproduced herein below"--
"24. For the aforesaid reasons, we are constrained to set-aside the impugned circular of the Auditor General dated 8.9.1999 read with Establishment Division's aforesaid letter dated 19.1.2001 and direct the Respondents that induction in the IDC should continue to be made in line with para-4 of the Accounts Group's O.M. dated 23/01/1974 as amended in 1976."
Learned counsel for the petitioners contended that the circular issued in 1999 was subsequently got approved by the Auditor-General from the Establishment Division, therefore, it has got a legal sanctity and any action taken under it, shall stand ratified. On the other hand, learned Deputy Attorney General as well as the learned counsel appearing for the caveators stated that the Auditor-General had no lawful authority to change the terms and conditions to the disadvantage of the respondents, inasmuch as the Establishment Division also can not give approval to a circular which has got no legal backing. Therefore, under the circumstances the Service Tribunal had rightly declared the said circular illegal.
We have heard the learned counsel and have gone through the impugned judgment. It is to be noted that the Tribunal proceeded to accept the appeals filed by the respondents for the following reasons:--
"(i) The impugned circular has materially changed the service prospect of the appellants who were now almost barred from induction in the IDC and subsequent promotion which will cause them to be stagnant and with obvious financial consequences.
(ii) The change is in violation of section 3(ii) of the Civil Servants Act, 1973 which prescribes that terms and conditions of service shall not be varied to the disadvantages of a civil servant.
(iii) The impugned circular is in violation and in conflict with Section 9(b) of the Civil Servants Act, 1973 because the basic formula of 50:50 whereby departmental promotees are to be inducted into the IDC has not been changed, induction/promotion in the IDC cannot be altered to the disadvantage of senior persons who have been considered on the basis of seniority-cum-fitness in accordance with appointment, Promotion and Transfer Rules, 1973 with prospects of rising up posts in B-19 and above."
Learned counsel when called upon to explain as to whether the Auditor-General under the Original O.M. No. 1/2/74-ARC dated 23.1.1974 or amended O.M. No. 2/1-75/ARC dated 3.1.1976 enjoys authority or the jurisdiction to change the policy by exercising the powers which have not been delegated to him by the Establishment Division, frankly stated that except the policy as well as the impugned circular, there is no other instrument on record conferring the authority on him, however his argument was that the Establishment Division had subsequently given the approval of the impugned circular with ex-post facto on 19.1.2001.
We have examined his arguments and also considered the letter of the Establishment Division dated 19.1.2001 but in our considered opinion the ex-post facto approval of the Establishment Division would not make the circular valid and legal for the reasons that the circular itself is in conflict with the provisions of section 3(ii) read with Section 9(b) of the Civil Servants Act, 1973. It may be noted that as far as the Auditor General is concerned, he in his capacity has got no lawful authority to lay down the policy unless it is approved by the Establishment Division, in accordance with the Rules of Business as well as the relevant law on the subject.
Keeping in view these facts and circumstances, the Tribunal has rightly held that as far as the circular is concerned, it has got no legal backing or sanctity. Learned counsel conceded that subsequently the impugned circular issued in 1999 by the Auditor-General has been withdrawn. This fact itself proves that it had no legal value, therefor, the Government did not allow it to continue to hold the field. Learned counsel further contended that as for as the appeals filed by the respondents before the Tribunal are concerned the same were barred by time, in this behalf, it may be noted that the Service Tribunal had the jurisdiction to condone the delay if those were beyond the limitation and interference by Supreme Court in the order of the Service Tribunal, condoning the delay in filing appeal before it would not advance the cause of justice in view of the law laid down in the case of "Managing Director, sui Southern Gas Company Ltd., Karahci vs. Ghulam Abbas" (PLD 2003 SC 724).
Thus for the foregoing reasons, we see no substance in these petitions, therefore, the same are dismissed. Leave refused.
(Rafaqat Ali Sohal) Leave refused.
PLJ 2006 SC 884
[Appellate Jurisdiction]
Present: Javed Iqbal and Hamid Ali Mirza, JJ.
GOVERNMENT OF PAKISTAN through MINISTRY OF WORKS and andother--Petitioners
versus
M/s. MALBROW BUILDERS, CONTRACTOR SIALKOT--Respondent
Civil Petition No. 1823 of 2004, decided on 7.12.2005.
(On appeal from the judgment of the Lahore High Court dated 14.5.2004 passed in R.S.A. No. 20 of 1998).
Limitation--
----Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Petitioner could not be knocked out due to technicalities--Plausible justification--Determination--Question of limitation being not mere technicality cannot be taken lightly and rights accrued to other party due to limitation cannot be snatched away without sufficient cause and lawful justification which are lacking in the present case--Held: Sufficient cause was not capable of connotation with exactitude and would differ from case to case but laxity, carelessness and cursory approach of the functionaries of the Government did not constitute sufficient cause and question of indulgence did not arise--Delinquent officers who were responsible for such delay must be taken to task being responsible for loss of public exchequer. [P. 886] A
Raja M. Irshad, Dy. A.G. (Punjab) and Mr. M.S. Khattak, A.O.R. for Petitioner.
Nemo for Respondent.
Date of hearing : 7.12.2005.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 14.5.2004 whereby RSA preferred on behalf of petitioner has been dismissed.
Precisely stated facts of the case are that the respondent filed a suit on 1.9.1987 for declaration and rendition of accounts with the averment that pursuant to tenders called on for the construction of Bungalows for Punjab Rangers, Sialkot dated 30.12.1981, the respondent floated its bid, which being the highest was accepted and contract awarded to him which could not be completed due to uncalled for interpretation made by the official functionaries. On 22.11.1982 a notice was served upon the plaintiff for cancellation of the contract. The suit preferred on behalf of respondent was contested and the learned trial Court after framing of issues and recording the evidence pro and contra decreed the suit in the sum of Rs. 2,29,226/- by means of judgment/decree dated 27.11.1996. Being aggrieved an appeal was preferred by the petitioner which was partly allowed vide judgment dated 6.12.1997 and the decretal amount was reduced from Rs. 2,29,226/- to Rs. 83155/- which was assailed before the learned High Court by means of RSA which has been rejected, hence this petition.
There is no denial of the fact that appeal is barred by time and no plausible justification could be rendered on the basis whereof it could be condoned. It is stressed time and again by the learned ASC on behalf of petitioner that delay was under the compelling circumstances in view of the time consuming formalities and the petitioner cannot be held responsible for it. It is also contended that on the basis of technicalities the petitioner could not have been knocked out. In order to substantiate his contentions reliance has been placed on the case Managing Director Sui Southern Gas Company Limited v. Ghulam Abbas (PLD 2003 SC 724).
We have carefully examined the contentions as agitated on behalf of the petitioners, scanned the entire record and perused the judgments of Courts below. We have also examined the dictum as laid down by this Court in Managing Director SSGC Limited's case (supra) which is not applicable as it was given altogether in a different context and there is a drastic difference between both the cases. We may mention here that the question of limitation being not mere a technicality cannot be taken lightly and the rights accrued to the other party due to limitation cannot be snatched away without sufficient cause and lawful justification which are lacking in this case. We are conscious of the fact that sufficient cause is not capable of connotation with exactitude and would differ from case to case but laxity, carelessness and cursory approach of the functionaries of the Government do no constitute sufficient cause and hence the question of any indulgence does not arise. The delinquent officers/officials who are responsible for such delay must be taken to task being responsible for the loss of public exchequer.
Be as it may no illegality or infirmity could be pointed out in the judgment impugned which being well based does not warrant interference. No preferential treatment can be shown to the Government as held on various occasions by this Court. In this regard reference can be made to Chairman, District Evacuee Trust v. Abdul Khaliq through Legal Heirs and others (PLD 2002 SC 436), Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Sambrial, District Sialkot and others v. M/s. Raja Industries (Pvt.) Ltd. through General Manager and 3 others (1998 SCMR 307), Federation of Pakistan through Secretary Ministry of Foreign Affairs, Govt. of Pakistan and 5 others v. Jamaluddin and others (1996 SCMR 727) and Govt. of Punjab through Secretary (Services) SA & I Department Lahore & another v. Muhammad Saleem (PLD 1995 SC 396). The petition being merit less is dismissed and leave refused.
(Rafaqat Ali Sohal) Leave refused.
PLJ 2006 SC 886
[Appellate Jurisdiction]
Present: Javed Iqbal, Muhammad Nawaz Abbasi & Syed Jamshed Ali, JJ.
MUHAMMAD YOUSAF and others--Petitioners
versus
Mst. NAJMA BIBI and others--Respondents
Civil Petitions Nos. 83, 84 & 1499 of 2005, decided on 29.3.2006.
(On appeal from the judgment dated 22.12.2004 of Lahore High Court, Lahore, passed in CM 247-C/04 in C.R. 19/1997 and CM 246-C/04 in CR No. 20/1997 and order dated 9.2.2005 passed in CM No. 1-C/2004 in CR 1274/1998).
Constitution of Pakistan, 1973--
----Art. 185(3)--Question of law--Leave to appeal was inclined to grant on the following grounds--Whether the provisions as contained in Art. 181 of the Limitation Act, 1908 can be made applicable in case of an application moved for restoration of a civil revision which was dismissed in default as no specific period of limitation has been provided in schedule or in S. 48 of CPC, whether no remedy whatsoever was available against dismissal of civil revision for non-prosecution and in as such eventuality can the Court invoke its inherent powers as conferred upon it under S. 151 CPC, whether omission of the case from cause list circulated by the registry of High Court does constitute sufficient cause for restoration of the civil revision petition, and whether divergence of opinion qua application of Art. 181 of limitation Act has not created anomalous situation justifying an authoritative judgment. [Pp. 887 & 888] A
Mr. M. A. Zaidi, AOR for Petitioners (in CPs 83-84/05).
Malik Rab Nawaz Noon, Sr. ASC Mr. M.A. Zaidi, AOR for Petitioner (in CPC 1499/05).
Nemo for Respondents in CPS 83-84/05.
Mr. Mahmood Khan, ASC for Respondents (in CP 1499/05 on Court notice).
Date of hearing : 29.3.2006.
Judgment
Javed Iqbal, J.--Heard Malik Rab Nawaz Noon, learned Sr. ASC on behalf of petitioners and Mr. Mahmood Khan, learned ASC for the respondents. In the above captioned petitions a similar question of law is involved. After having scanned the entire record and perused the judgments impugned with care and caution we are inclined to grant leave, inter alia, on the following points:--
(i) Whether the provisions as contained in Article 181 of the Limitation Act, 1908 can be made applicable in case of an application moved for restoration of a civil revision petition which was dismissed in default as no specific period of limitation has been provided in the Schedule or in Section 48 of CPC.
(ii) Whether no remedy whatsoever is available against dismissal of a civil revision petition for non-prosecution and in as such eventuality can the Court invoke its inherent powers as conferred upon it under Section 151 CPC.
(iii) Whether omission of the case from the cause list circulated by the registry of the High Court does constitute sufficient cause for restoration of the civil revision petition.
(iv) Whether the divergence of opinion qua application of Article 181 of the Limitation Act, 1908 in case Allah Bachai v. Fida Hussain (2004 SCMR 615), Muhammad Sadiq v. Bashiran (PLD 2000 SC 820) have not created an anomalous situation justifying an authoritative judgment.
The above captioned petitions which are converted into appeal be clubbed together and fixed at some early date in view of the significant and important questions involved therein.
(Rafaqat Ali Sohal) Appeal accepted.
PLJ 2006 SC 888
[Appellate Jurisdiction]
Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ.
FEDERAL PUBLIC SERVICE COMMISSION--Petitioner
versus
Mrs. ZAKIA LATIF and others--Respondents
Civil Petition No. 1596 of 2003, decided on 25.7.2005.
(On appeal from the judgment dated 28.5.2003 passed by the Lahore High Court, Rawalpindi Bench in W.P. No. 2088 of 1999).
Constitution of Pakistan, 1973--
----Art. 185(3)--Islamabad Model Schools & Colleges (Service Regulations, 1988), Reglu. No. 13--Respondent, and ad hoc Senior English Teacher was allocated category 1 by Ministry of Education in the regularization policy--Petitioner's objection regarding her category was turned down by High Court in writ petition--Held: Policy of regularization was made by Government and Ministry of Education, being its component would be in the better position to allocate category to its employees in light of its policy--Leave refused. [Pp. 889 & 890] A
Mr. Nasir Saeed Sheikh, DAG and Ch. Akhtar Ali, AOR for Petitioner.
Mr. Naseer Ahmad, ASC for Respondents.
Date of hearing : 25.7.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 185(3) of the Constitution has been directed against the judgment dated 28.5.2003 passed by a learned Judge in Chambers of the Lahore High Court Rawalpindi Bench in a Constitution petition.
The facts in small compass giving rise to the petition are that the Respondent No. 1 was appointed as senior teacher (English) on ad hoc basis, in 1989 under Regulation No. 13 of Islamabad Model Schools and Colleges (Services Regulations 1988) and later she was selected as Senior Teacher (English) on regular basis by a Selection Committee but due to ban on appointment, could not be appointed on regular basis and continued as ad hoc teacher. In 1994 the Federal Government introduced the policy of regularization of the employees who were appointed on ad hoc basis during the period from October 1981 to December 1990 and were classified into two categories for the purpose of regularization. The Ministry of Education, Government of Pakistan, having processed the case of respondent, placed her in Category No. 1 but the Federal Public Service Commissions by changing her category, declined to recommend her for regularization on the basis of criteria applicable to the employees of the category in which she was placed by the Ministry. The respondent being aggrieved of the action of petitioner, invoking the Constitutional jurisdiction of the High Court, filed a writ petition in the matter which succeeded and a learned Judge in the High Court directed for treating the respondent in the category in which she was placed by the Ministry of Education.
The learned Deputy Attorney General has contended that the categorization of the ad hoc employees for the purpose of regularization was a policy decision and it was in the exclusive domain of the petitioner to place an employee in proper category, therefore, the High Court was not supposed to interfere in the matter. Learned DAG added that the petitioner while strictly observing the criteria for the regularization, placed the respondent in the category to which she actually belonged.
The learned counsel for the respondents on the other hand submitted that the respondent was entitled for regularization in the light of the criteria prescribed for Category No. 1 in which she was placed by the concerned Ministry and FPSC, by changing her category, has taken away her right of regularization.
We having heard the learned counsel for the parties when confronted, learned DAG that respondent being an employee of Ministry of Education was placed in category-1 by the Ministry and how the change of her category by the petitioner, was justified, he without satisfying us regarding the authority of petitioner to change the category of the respondent allocated by the concerned Ministry submitted that the decision taken by the petitioner was quite in consonance with the policy. We are afraid, the policy of regularization was made by the Government and the Ministry of Education, a component of Government, would be in better position to allocate proper category to its employees in the light of the policy in question.
In the light of foregoing discussion, we would take no exception to the judgment of the High Court and dismiss this petition. Leave is refused.
(Javed Rasool) Leave refused.
PLJ 2006 SC 890
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, Muhammad Nawaz Abbasi and Mian Shakirullah Jan, JJ.
IBRAHIM SHAMSI and others--Petitioners
versus
BASHIR AHMED MEMON and others--Respondents
Civil Appeal No. 1071 of 2005, alongwith Civil Appeal No. 1325 of 2005, decided on 15.2.2006.
(On appeal from the judgment of High Court of Sindh at Karachi passed in J. Misc. No. 37 of 2003, dated 3.8.2005 in both cases).
Constitution of Pakistan, 1973--
----Art. 185(3)--Companies Ordinance, (XLVII of 1984), Ss. 305, 309 & 311--Acceptance of bid against direction of Supreme Court--Held: High Court instead of deciding the dispute in terms of judgment of Supreme Court confirmed the auction in favour of respondent who had entered in competition at a later stage and offered matching bid with a nominal margin--Case remanded. [P. 892] A
Raja Muhammad Ibrahim Satti, ASC for Appellant (in CA No. 1071 of 2005).
Nemo for Respondent No. 1 (in C.A. No. 1071/2005).
Mr. M. Ikram Siddiqui, ASC, for Respondent No. 2 (in C.A. No. 1071/2005).
Mr. Fakhruddin G. Ebrahim, ASC & Mr. M.S. Khattak, AOR, for Appellant (in CA No. 1325 of 2005).
Mr. M. Jaffar Hashmi, ASC for Respondent No. 39 in C.A. No. 1325/2005).
Mr. M. Ikram Siddiqui, ASC for Respondent No. 40, Nemo for other Respondents.
Date of hearing: 15.2.2006.
Judgment
Muhammad Nawaz Abbasi, J.--These direct appeals have been preferred against the judgment dated 3.8.2005 passed by a learned Single Judge of the High Court of Sindh at Karachi in a matter arising out of proceedings under Sections 305, 309 & 311 of Companies Ordinance, 1984. The order passed by the learned Company Judge in the High Court, was challenged before this Court in C.P. No. 319-K of 2005 which was converted into an appeal and case was remanded to the High Court for fresh decision of the References Nos. 2 & 3 of 2005 alongwith the objections and miscellaneous applications of the parties. The learned Judge in the High Court in post-remand proceeding vide order dated 11.7.2005, directed for holding fresh bid and this order was also assailed before this Court in Civil Appeal No. 781 of 2005 but pending disposal of the appeal, fresh bid was received, therefore, the appeal was dismissed as not pressed because References in question were still pending for final disposal. The learned Company Judge in the High Court, however, accepted the bid of Rs. 46.20 crore of Memon Abdul Qadir, respondent herein (subsequent bidder) as against bid of Rs. 46.15 crore offered by Ibrahim Shamsi (appellant) and directed him to pay the earnest money within 15 days but he failed to deposit the amount. The grievance of the appellant in the present appeal is that learned Judge in the High Court without deciding the references on merits, in terms of the judgment dated 22.6.2005 passed by this Court in CA No. 652 of 2005, could not accept the bid offered by Memon Abdul Qadir.
"Consequently, the petition after conversion into appeal is accepted, the impugned order dated 18.4.2005 is set aside and the case is remanded to the learned Company Bench of the Sindh High Court with direction to decide Reference No. 2 of 2005 and Reference No. 3 of 2005 alongwith all the objections and applications of the parties, after hearing all the parties concerned keeping in view, the larger interest, in accordance with law, of the company under liquidation as well as the creditors. The Court shall decide the matter within 15 days from the receipt of this order."
"I have failed to see how Reference No. 3/2005 can be termed as a Reference in violation of any order of the Court. The Official Liquidator was specifically directed to sell the assets of the Company and in compliance of such directions sealed bids were invited by him. A bidder does not acquire any right or interest in the property to be sold merely because he had given highest bid till the time sale is made absolute under Order XXI Rule 92, CPC in his favour. However, after receiving the bids by the Court in case any bid is received more than the bid offered by the highest bidder, then it is advisable that the highest bidder be called and give him an opportunity to meet the same, which opportunity in the instant case has been given to him, but he expressed his inability to match the highest bid given by Memon Abdul Qadir. The learned official Liquidator stated that huge amount is outstanding against the liquidated company apart from dues of the labour, who are running from pillar to post for their long outstanding dues. Official Liquidator was directed to call fresh bids for sale of the assets of the company through publication of advertisement in newspapers vide order dated 11.7.2005. The Official Liquidator got notice published in compliance of the Court order, however, he received only one bid of Rs. 2.5 corer. I would like to mention here that Official Liquidator has received claim from nine creditors totaling to Rs. 91,24,51,653.27 apart from outstanding dues of employees of the company.
As the auction purchase, Memon Abdul Qadir, offered to purchase the property on "as is where is" basis and have a notice of objection taken by Mr. Faisal Kamal on behalf of KEPZ, the offer given by him for the sum of Rs. 46.20 crore, being the highest bid, is accepted. The auction purchaser is directed to deposit the balance amount within 15 days from the date of this order. It made clear that no letter for the renewal of lease in respect of land in question will be issued by the Official Liquidator as properties were sold on "as is where is" basis.
The References Nos. 2, 3, 4 & 5 stand disposed in terms above."
(Javed Rasool) Case remanded.
PLJ 2006 SC 893
[Appellate Jurisdiction]
Present: Javed Iqbal, Sardar Muhammad Raza Khan and Hamid Ali Mirza, JJ.
ASHIQ HUSSAIN and 8 others--Appellants
versus
KABIR--Respondent
Civil Appeal No. 2041 of 2001, decided on 17.1.2006.
(On appeal from the judgment dated 28.2.2000 passed by the Lahore High Court, Multan Bench, Multan in Civil Revision No. 233-D-89)
West Pakistan Muslim Personal Law (Shariat) Application Act 1962 (V of 1962)--
----S. 3--Constitution of Pakistan (1973), Art. 185--Termination of limited estate--Devolution of property owners by last male owner--Termination of limited estate by S. 3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, would entitle legal heirs of last male owner to interest his estate in accordance with Muslim Law of inheritance--Last male owner having no male issue, was survived by two daughters who would inherent 2/3 share collusively while respondent being only surviving collateral would be entitled to 1/3 share out of the property of deceased--Respondent's claim to inherit half share of daughter of last male owner who had died was not warranted in as much as she having inherited her shari share had transferred her entire estate in her life time--Owner of High Court whereby 1/2 share was decreed in favour of respondent was modified to the extent of 1/3 share of the estate of deceased. [Pp. 895 & 896] A & B
1997 SCMR 1412; 1983 SCMR 80 ref.
Mr. Riyasat Ali Chaudhry, ASC for Appellants.
Awan Muhammad Hanif, ASC for Respondent.
Date of hearing : 13.12.2005.
Judgment
Sardar Muhammad Raza, J.--Ashiq Hussain and eight others have filed this appeal by leave of Court against the judgment dated 28.2.2000 of a learned Judge in Chambers of Lahore High Court, Multan Bench, whereby, on acceptance of the revision petition filed by Kabir respondent, the judgment dated 14.3.1989 of the learned District Judge Khanewal was set aside and that dated 14.6.1988 of learned Civil Judge Khanewal was restored, maintaining the decree to the effect that Kabir, as prayed for, was entitled to half share in the property of Sardara duly inherited from him as well as his daughter Mst. Daulan.
The following pedigree-table would help comprehend the background:--
The property measuring 200 kanalas 2 marlas alongwith Ihata # 2 measuring 1 marla 4 sarsahis situated in Chak 5/8AR, Tehsil Mian Channu District Khanewal, admittedly was allotted to Sardara son of Noora under the scheme of the Colonization of Government Lands (Punjab) Act 1912. Upon his death, the entire property devolved upon his two daughters Mst. Budhai and Mst. Daulan, under the orders of the Collector on the basis whereof Mutation # 47 was attested on 6.3.1942. According to the aforementioned admitted pedigree-table Sardara was survived by two sets of successors. One set flowed from the daughters while the other set included the sons of the first cousins of Sardara. Out of such collaterals only Kabir is alive being respondent while the first set aforesaid are the appellants who have been deprived of 1/2 share in the property of Sardara having been deceased by the trial Court and upheld by the High Court.
It may be stated at the very outset that leave to appeal involving the question of limitation was granted by this Court on the strength of Mst. Ajaib Sultana and another v. Gohar-ur-Rehman and five others (1997 SCMR 1412). A perusal of aforesaid authority revealed that it too was a leave granting order in Civil Petition # 1377-L of 1993. The two points on which the leave was granted did not directly relate to the question of limitation. However, the aforesaid petition was converted into Civil Appeal # 255 of 1995 which was subsequently decided on merits and the appeal of Mst. Ajaib Sultana denying the claims of the collaterals was dismissed on 8.1.2001. Limitation, even if involved, was never considered to be a hurdle.
Coming to the merits of the present case, the disputed one being a colony land and proviso to section 14 being not applicable, the succession to the tenancy was to devolve in accordance with Section 20 of the Colonization of Government Lands (Punjab) Act 1912, and it so devolved upon his two daughters Mst. Budhai and Mst. Daulan. Both the daughters aforesaid vide Mutation # 12 of 10.8.1965 transferred the entire property in favour of Ashiq Hussain and Dad, the sons of Mst. Budhai. One may recall that Mst. Daulan had died issue-less in the year 1978. Dad son of Budhai having died in 1984, his legal heirs are before us as appellants. Kabir, while claiming his shari share in the property of Sardara and Mst. Daulan has also challenged the aforesaid transfer vide Mutation # 12 of 10.8.1965.
The devolution aforesaid under Section 20 as well as 30-A of the Colonization of Government Lands Act, 1912 (inserted by Punjab Act VI of 1944), from the plaint reading of the sections, appears to be a devolution under Customary Law and the daughters of Sardara would therefore be deemed to have held the property as limited owners.
This Court in Mst. Began v. Mst. Bai (1983 SCMR 80) has elaborately discussed the factum of devolution of inheritance under Sections 20 and 30-A of Colonization of Government Lands (Punjab) Act, 1912 and the effect thereon of Sections 2, 3 and 5 of West Pakistan Muslim Personal Law (Shariat Application Act 1962. It was held that the rules of successions contained in Sections 20 and 30-A of the Act of 1912 are mainly derived from the rules of customary succession. That such female owners would always be deemed to be limited owners and on termination of the limited estate, the legal heirs of the last full owner would inherit the property in accordance with Muslim Personal Law, including the limited owner who will also inherit her Shari share in accordance therewith.
In the instant case, the limited estate s stood finally terminated by Section 3 of West Pakistan Muslim Personal Law (Shariat) Application Act 1962 and from the year 1962 onwards all the legal heirs of Sardara would become owners in accordance with their shari share. It is an admitted fact that Sardara having no male issue was survived by two daughters who would inherit 2/3 share collusively while 1/3 share would go to the collaterals (cousin's sons of Sardara) out of whom only Kabir is alive, inheriting the share of his real uncle Nadra having dies issue-less. In the given circumstances the present appellants would be entitled only to 2/3 share and the respondent Kabir to 1/3 share in the property left by Sardara.
Kabir had claimed 1/2 share because apart from his 1/3 he also claims entitlement through inheritance to 1/6 share in the property of Mst. Daulan. Mst. Daulan is otherwise entitled to 2/6 share being half of 2/3 of the two daughters. This half share in the property of Sardara was decreed by the trial Court and maintained by the High Court. We have given our considered thought to the matter and are of the firm view that 1/6 share of Mst. Daulan was wrongly allocated to Kabir respondent, for the strong reason, that Mst. Daulan having died in the year 1978, she had transferred her entire entitlement in favour of the sons of Mst. Budhai vide Mutation # 12 attested on 10.8.1965. Kabir cannot, therefore, inherit anything from Mst. Daulan. In nutshell, Kabir is entitled only to 1/3 share in the property of Sardara.
Consequent upon what has been discussed above, the appeal is partially accepted and the judgment and decree granted by the trial Court and upheld by the learned High Court is modified to the effect that the appellants are entitled to 2/3 share, while, the respondent Kabir is entitled to 1/3 share, in the property of Sardara. The decree be deemed to be amended accordingly.
(Aziz Ahmad Tarar) Appeal accepted.
PLJ 2006 SC 896
[Appellate Jurisdiction]
Present: Rana Bhagwandas and Nasir-ul-Mulk, JJ.
DIRECTOR-GENERAL, RAWALPINDI DEVELOPMENT AUTHORITY and others--Petitioners
versus
Mian MUHAMMAD SADIQ & another--Respondents
C.P. No. 1850 of 2004, decided on 13.12.2005.
(On appeal from the order of Lahore High Court, Rawalpindi Bench, Rawalpindi dated 7.6.2004 passed in Writ Petition No. 1629 of 2000)
Constitution of Pakistan, 1973--
----Art. 185(3)--Issuance of demand notice by petitioner--Setting aside by High Court in writ petition--Validity--Held : Action of petitioner/ authority in directing resumption of plots & claiming rent was not supported by any law because the property was permanently transferred to respondent's predecessor being the highest bidder--No question of public importance--Impugned order upheld. [Pp. 897 & 898] A, B & C
Mrs. Afshan Ghazanfar, ASC for Petitioners.
Nemo for Respondents.
Date of hearing : 13.12.2005.
Judgment
Rana Bhagwandas, J.--Petitioner-Rawalpindi Development Authority is aggrieved by Lahore High Court judgment dated 7.6.2004 allowing respondents' writ petition directed against decision dated 15.6.2000 passed by Director-General of the petitioner Authority in pursuance of the Lahore High Court order dated 15.3.2003 in Writ Petition No. 503 of 2000 filed by Respondent No. 1 against the petitioner Authority and others.
Respondents' predecessor-in-interest Fazal Karim and Muhammad Amin purchased Plots Nos. 22 & 33 in open auction from the erstwhile Rawalpindi Improvement Trust. Upon payment of the price of the plots, a sale agreement was executed in their favour. They submitted a site-plan for construction of the building, which was duly approved. They there upon constructed a house thereon. On the death of Fazal karim and Muhammad Amin, an application was made for mutation of the plots in the name of respondents vide application dated 4.11.1991. On its part, petitioner Authority directed the respondents to submit proof of payment of Rs. 5059/- as arrears of land revenue due and payable. Respondents refuted the said demand, whereafter demand notice for payment of Rs. 13,91,830/- as arrears of rent at the rate of Rs. 303/- per month with effect from 26.8.1962 to 31.12.1999 was issued to them. Respondents challenged the demand in the earlier writ petition, which was disposed of with a direction to the Authority to look into their grievance and to dispose of their pending appeal strictly according to law. Respondents' appeal was rejected and the decision vide letter dated 15.6.2000 communicated to the Deputy Registrar of the High Court with a copy to the respondents leading to the writ petition.
Writ petition was resisted on the averments that the respondents were directed vide notice dated 9.9.1961 to deposit a sum of Rs. 4,702/- but they failed to deposit the same. Accordingly a resolution was passed by the Trust to serve the allottees with final a show-cause to pay composition fee within two weeks, failing which illegal construction would be demolished. Respondents submitted a representation for remission of penalty, which was rejected on 22.3.1962, where after the Trust resumed the plots vide order dated 25.8.1962. According to the petitioner Authority, since the plots were resumed, the respondents were liable to pay rent at the rate of Rs. 7,992/- for two years with effect from 26.8.1962 to 25.8.1964 and at the rate of Rs. 303/- per month for the subsequent period.
Upon hearing learned counsel for the parties and examining the record as well as rival contentions, Lahore High Court allowed the writ petition on the premise that though the demand for dues amounting to Rs. 4,702/- as composition fee was raised as far back as 7.8.1962, but, for non-deposit thereof, no action was taken till 20.1.2000 when for the time demand notice was issued to the respondents calling upon them to deposit a sum of Rs. 13,91,830/-. High Court observed that the action of the petitioner-Authority in directing resumption of the plots and claiming rent was not supported by any law because the property in dispute was permanently transferred to the respondents' predecessor-in-interest being the highest bidder. High Court noted that in payment of Rs. 18,000/- as bid money had been made on acceptance of highest bid and, thus, the bidder acquired absolute right, interest and title to the property, which could not be disturbed for non-payment of composition fee. In the ultimate analysis, High Court accepted the demand of the petitioner authority in the sum of Rs. 4,702/- raised in the year 1961 and calculating the same with mark-up reckoned the amount to Rs. 31,362/-. Consequently, writ petition was allowed subject to deposit of above said amount within a period of one month with direction to the petitioner Authority to effect mutation in favour of the respondents subject to payment of transfer fee and other ancillary charges, hence this petition.
We have heard Mrs. Afshan Ghazanfar, learned ASC for the petitioners and gone through the impugned judgment as well as the record.
Learned counsel has not been able to pin point any question of law of public importance arising in the facts and circumstances of the petition. Learned counsel contended that the High Court ought not to have declared the demand notice as without lawful authority and should have allowed the petitioner authority to recover rent of the plots from the writ petitioners. Learned counsel is, however, unable to cite any provision of law enabling and authorizing the petitioner Authority to resume the plots and claim rent after a period of 38 years in a writ petition filed by the respondents, when they had acquired absolute right and title in the property and raised construction after approval of the site-plan. Only allegation against them appears to be some irregularity or deviation from the approved plan, which would not justify the resumption of the plots as wrongly resorted to by the petitioner Authority. In our considered opinion, High Court was perfectly justified in striking down the impugned action of the petitioner Authority, which was patently illegal and unwarranted. It is high time to act fairly and rationally while resorting to avoidable and unnecessary litigation by public authorities.
At any rate, no question of law of public importance has been raised within the contemplation of Article 185(3) of the Constitution with the result that we find no merit in this petition, which is accordingly dismissed.
(Javed Rasool) Petition dismissed.
PLJ 2006 SC 899
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan and Falka Sher, JJ.
AHMAD SHER and others--Appellants
versus
MUHAMMAD HAYAT--Respondent
Civil Appeal No. 2569 of 2001, decided on 8.3.2006.
(On appeal from the judgment dated 23.4.2001 passed by the Lahore High Court, Lahore in Civil Revision No. 1764/D of 1985).
Civil Procedure Code, 1908 (V of 1908)--
----S. 2(2)--Pre-emption suit--Non-making of Talb-i-Muwathibat--Effect of said Kamal's case--Held: Suit was decreed ex parte--Decree set aside--Ex parte decree was obtained before stipulated period--There was no difference between ex parte decree and a decree passed after contested, for both were executable decreed u/S. 2(2) C.P.C.--It was immaterial whether such decree was set aside subsequently--More over as a dismissed of suit was also a decree u/S. 2(2) C.P.C. and which had occurred prior to the target date, so pre-emptor could not be non suited for non performance of Talb-i-Muwathibat--Leave was refused.
[Pp. 900, 901] A, B & C
1999 SCMR 2518; 1992 SCMR 1328; 1992 SCMR 2117; 1999 SCMR 210 ref.
Mr. Maqbool Ilahi Malik, Sr. ASC, Ch. Mumtaz Yousaf, ASC with Ch Akhtar Ali, AOR for Appellants.
Mr. Gulzarin Kiani, ASC for Respondent.
Date of hearing : 8.3.2006.
Judgment
Sardar Muhammad Raza, J.--Ahmed Sher and others, original vendees in pre-emption suit have filed this appeal after leave of Court against the judgment dated 23.4.2001 of a learned judge in Chambers of Lahore High Court whereby, on acceptance of the revision petition of Muhammad Hayat, respondent/pre-emptor, the latter was granted a decree for possession through pre-emption.
Vide Mutation # 29 attested on 5.5.1970, the disputed property measuring 250 Kanals was purchased by the vendees. Muhammad Hayat, on 5.5.1971, filed a pre-emption suit where he obtained an ex-parte decree for possession through pre-emption on 15.12.1973. The vendees moved the same Court for getting the ex-parte decree set aside which, eventually was set aside on 22.10.1975. After holding the trial, the learned trial Court dismissed the pre-emption suit on 2.3.1982.
Muhammad Hayat, pre-emptor went in appeal but the same was dismissed on 20.3.1985. Such concurrent dismissal was further challenged by the pre-emptor in revision before the High Court, which was accepted through the impugned judgment dated 23.4.2001. The finding of the two Courts aforesaid were set aside and the pre-emptor was granted a decree for possession of the suit land through pre-emption on payment of Rs. 31,285/- as pre-emption money. The pre-emption amount, after adjustment of 1/5th if already deposited, was to be deposited on/or before 31.5.2001. The petitioner-vendees seek leave to appeal.
The first and the foremost point raised by the learned counsel for the petitioners was that, as the pre-emptor had not made talb-i-mowathibat in the plaint and had not succeeded in obtaining a decree in his favour before the target date of 31.7.1986 as determined in Said Kamal Shah's case (PLD 1986 SC 360), his suit was liable to be dismissed. The argument was controverted by the learned counsel for the respondent on the ground that the pre-emptor had already obtained an ex-parte decree on 15.12.1973, much earlier to the target date of 31.7.1986 and hence he was not bound to prove the performance of talb-i-mowathibat.
Learned counsel for the petitioners while meeting the aforesaid argument alleged that the ex-parte decree obtained on 15.12.1973 had lost its relevant efficacy because, it was set aside by the same Court on 22.10.1975 and thus was non-existent for the purposes of the target date of 31.7.1986. All these points need to be determined and discussed at some length.
It may be recalled that after setting side of the ex-parte decree on 22.10.1975, the suit was otherwise dismissed on 2.3.1982. Though under Section 2(2) of the CPC a dismissal of the suit is also a decree and even such dismissal on 2.3.1982 had occurred prior to the target date of 31.7.1986 yet this Court in Babar Shehzad's case (1999 SCMR 2518) has already determined that a pre-emptor in order to avoid the implications of Said Kamal Shah's case must obtain a decree in his favour. The learned counsel for the respondent while placing reliance upon the aforesaid ruling claimed that even if the dismissal of suit on 2.3.1982 is not considered to be a decree, still the pre-emptor had succeeded in obtaining a decree in his favour of 15.12.1973 irrespective of the fact that it was an ex-parte decree. Reliance in this behalf was placed in Ghulam Rasool's case (1992 SCMR 1328), Bahadur Khan's case (1992 SCMR 2117) and Nazir Begum's case (1999 SCMR 210) here this Court has held that an ex-parte decree obtained in favour of the pre-emptor prior to the target date throws the case of pre-emptor out of the mischief involved and further that there was no difference between a decree passed ex-parte or a decree passed after contest, for, both were executable decrees falling within the scope of Section 2(2) of the CPC and it is altogether immaterial whether such decree was set aside subsequently. Once a decree is obtained before the target date, it operates to meet the required demand.
Learned counsel for the petitioner lastly argued that in the cases aforesaid the ex-parte decrees were set aside by the Higher Court whereas in the instant case it had been set aside by the same Court and hence is to be taken as nonexistent. Despite our mental exercise, we could not legally or intellectually agree with the proposition because there is no difference between an ex-parte decree set aside by the same Court and the one set aside by the higher Court. The effect of the both is the same. It is not at all necessary that such ex-parte or contested decree must subsist up to 31.7.1986. The argument that such decree must subsist up to 31.7.1986, leaves no room for discussion because that would almost be a decree for all intents and purposes.
After having gone through the case law and after having extensively heard the learned counsel on either side, we hold the consistent view that in the instant case, the pre-emptor had already obtained an ex-parte decree on 15.12.1973, much before the target date regardless of the fact that such decree was subsequently set aside. Once, it is obtained before the target date, it eliminates the mischief involved. The pre-emptor could not, therefore, be non-suited for non-performance of talb-i-muwathibat.
Provenly, the pre-emptor has a superior right of being owner in the estate which right is not possessed by the vendee. The amount of consideration has also been rightly fixed and determined by the learned High Court.
Last, it was contended by the learned counsel for the petitioners that, by another party, another suit was instituted challenging the sale in question which stood decreed on 2.1.1978. That such decree having the effect of cancelling the disputed sale, no pre-emption suit could exist nor could it be decreed. We have given our anxious thought to this aspect as well and believe firstly, that the present pre-emptor was not a party to such suit and moreover, it was obtained on 2.1.1978 on the conceding written statement of defendant. Being a consent decree, it was no more than a mere agreement between the parties regardless of the judicial imprimatur that it contained. Such agreement without the pre-emptor being a party to it, is not binding upon him. The learned High Court was, therefore, justified in holding that such consent decree was collusion between the parties thereto to damage the already pending suit for pre-emption. Such suit could not have been filed in the absence of the present vendees and if such vendees were a party thereto, they could well have informed about the pendency of pre-emption suit of Muhammad Hayat.
Viewed from any angle, we do not find any reasons to interfere with the impugned judgment dated 23.4.2001 of the learned Single Judge of the High Court. There being no merit in the appeal, it is hereby dismissed.
(Javed Rasool) Appeal dismissed.
PLJ 2006 SC 902
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ.
GHULAM SARWAR and others--Appellants
versus
CHANAN DIN (deceased) through Legal heirs and another--Respondents
Civil Appeals Nos. 137 & 1315 of 2002, decided on 31.1.2006.
(On appeal from the judgment dated 30.11.2001 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Regular Second Appeal No. 124 of 1981).
Punjab Pre-emption Act, 1913 (I of 1913)--
----S. 15--Constitution of Pakistan 1973, Art. 185(3)--MLR 115, Para 25(3)(d)--Pre-emption suit on the basis of co-tenancy--Decree to extent of 1/2 share--Validity--Held: Both brothers were physically tenanting the entire property regardless of what share they commanded--Their behalf each would become relevant or consequential only when their landlord allocated specific share to each of the tenants on the spot by meets and bounds or they themselves distributed the portions among themselves--As such eventualities had never occurred so by virtue of inheritance, each brother was a tenant over the entire property and no one could be restricted to 1/2 portion in physical terms--Judgement a decree of High Court was set aside. [Pp. 903 & 904] A, B C & D
Mr. Abdul Karim Kundi, Mr. M.S. Khattak, AOR (absent), for Appellants.
Mr. Muhammad Munir Peracha and Mr. Ejaz M. Khan AOR (absent) for Respondents.
Date of hearing : 31.1.2006.
Judgment
Sardar Muhammad Raza, J.--Ghulam Sarwar, a vendee in pre-emption suit, seeks leave to appeal against the judgment dated 30.11.2001 of a learned Judge in Chambers of Lahore High Court whereby half of the property sold has been decreed in favour of Chanan Din, the pre-emptor, now dead, his legal representatives impleaded.
The trial Court vide judgment dated 20.12.1980 had not suited the pre-emptor on the ground that Ghulam Sarwar vendee, being a tenant over the suit land, had a superior right of pre-emption. The learned Additional District Judge, while accepting the appeal decreed the whole suit vide judgment dated 15.6.1981, on payment of Rs. 50,000/- as pre-emption money. The learned High Court in regular second appeal, after remand by this Court, granted the pre-emptor a decree for half of the suit land holding that one Muhammad Akbar was a tenant over the suit land after whose death his two sons namely Ghulam Sarwar, the appellant and Muhammad Iqbal had inherited the tenancy in equal shares and thus Ghulam Sarwar could defend the pre-emption suit only to the extent of half share" comprised in his tenancy" as contemplated by para 25(3)(d) of Martial Law Regulation 115.
It is a proved fact that at the time of sale the two brothers aforesaid were tenanting the property as inherited from their father but in equal shares. Same is evident from the revenue record as well. The question to be decided in the instant petition is as to whether the property comprised in the tenancy of Ghulam Sarwar is the entire property or only half of it.
Again, it is admitted that one Muhammad Akbar was a tenant on payment of half bhatai over the entire property. His tenancy is admittedly inherited by the two sons who are entered in the revenue record as tenants of the entire property subject, of course, to their individual share which is one-half. The words used in Para 25(3)(d) of MLR 115 are "comprised in tenancy" which, on the face of it, is referable to the piece of land physically possessed by a tenant, as such. The question in the instant case is as to what portion the two tenant brothers physically possess.
The record as well as evidence indicates that both the brothers are physically tenanting the entire property regardless of what share they command. They are throughout incorporated in record as co-tenants of the entire property with half share each. This scenario would attract the principle of ownership where each co-sharer is the owner of each and every inch of the property regardless of his specific share, which becomes relevant or material only at the time of partition. In the instant case as well, both the brothers would be considered tenants over the entire property. Their half share each would become relevant or consequential only when either the landlord allocates that specific share to each of the tenants on the spot by meets and bounds or they themselves distribute the portions among themselves.
Both these eventualities have never occurred. Neither the landlord allotted them any specific portion nor they distributed it among themselves, on the principle of partition. We are of the view that each brother, by virtue of inheritance is a tenant over the entire property and that is the only conclusion that falls in consonance with the principle of co-tenancy in line with the principle of co-sharership.
The matter can be viewed from still another angle; as to what would be the nature of tenancy after when Ghulam Sarwar, the tenant vendee succeeds. Obviously, after success, he will become the owner of the entire property while the other brother Muhammad Iqbal would never lose his tenancy rights and would remain a tenant over the entire property as inherited from his father. The learned High Court seems to have misconstrued the principle of co-tenancy particularly when no specific portion of suit land was possessed as tenant by any of the brothers. Unless, it was proved that the brothers had divided between themselves their portion of tenancy in accordance with their share, no one could be restricted to half portion in physical terms.
Consequent upon what has been discussed above, Civil Appeal No. 137 of 2002 filed by Ghulam Sarwar, tenant vendee, is accepted while Civil Appeal No. 1315 of 2002 filed by the pre-emptor is rejected, holding that one of the tenants can defend a pre-emption suit on the basis of his co-tenancy over the entire land. The pre-emption suit is hereby dismissed and the judgment dated 20.12.1980 of the learned trial Court is restored.
(Javed Rasool). Order accordingly.
PLJ 2006 SC 904
[Shariat Appellate Jurisdiction]
Present: Abdul Hameed Dogar, Chairman, Mian Shakirullah Jan, Raja Fayyaz Ahmed, Dr. Allama Khalid Mahmud and Dr. Rashid Ahmed Jullundhari, JJ.
SHAUKAT ALI--Appellant
versus
STATE--Respondent
Criminal Appeal No. 38(s) of 2003, decided on 2.12.2005.
(On appeal from the judgment dated 29.3.2002 of the Federal Shariat Court, Branch at Lahore, passed in Criminal Appeal No. 39-L of 2002).
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----S. 10(2)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction & sentence recorded against accused, assailed--Appreciation of evidence--Held: There was no other independent & reliable evidence except the testimony of PWs who deposed to have seen accused, once or twice, committing zina with the deceased lady who subsequently become pregnant and died after 4 days of delivery of a baby--No criminal proceeding had been initiated against accused at the relevant time--Mere fact of pregnancy of giving birth to a baby would not by itself ex facie prove the commission of zina--Criminal proceeding were initiated after death of the deceased--Prosecution could not prove its case beyond doubt--Accused was acquitted. [P. 906] A & B
Nemo for Appellant.
Mr. Muhammad Zaman Bhatti, ASC for Respondent.
Date of hearing : 2.12.2005.
Judgment
Abdul Hameed Dogar Chairman--This appeal by leave is directed against the judgment dated 29.3.2002 passed in Criminal Appeal No. 39-L of 2002 whereby the said appeal was dismissed by learned Judge in Chambers of the Federal Shariat Court, whereby the judgment dated 23.1.2002 passed by learned Additional Sessions Judge, Faisalabad was upheld maintaining the conviction of appellant under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as `the Ordinance') with modification in sentence of imprisonment from ten years R.I. and fine of Rs. 20,000/- to six years R. I and fine of Rs. 4,000/-, so also maintaining acquittal of co-accused Mst. Kausar Bibi alias Nanhi.
Briefly, stated the facts of the case are that appellant alongwith acquitted accused Mst. Kausar Bibi and charged that he had committed zina with Mst. Asia alias Bibi, daughter of Mukhtar Ahmad in the area of Mohallah Madina Abad, Dhodhiwala, Faisalabad, knowing that he was not legally wedded to the said Mst. Asia and further that while committing zina with her, she became pregnant and he induced to cause miscarriage of foetus through co-accused Mst. Kausar Bibi but failed resulting in the birth of baby and death of said Mst. Asia. The appellant and acquitted accused denied the charged offence, therefore, prosecution examined PW-1 Muhammad Sharif, H.C., PW-2 Muhammad Irshad, PC, PW-3 lady doctor Hameera Parveen, PW-4 Muhammad Younas, PW-5 Muhammad Saleem, ASI, PW-6 Dr. Muhammad Ilyas, PW-7 Abdul Rehman, PW-8 Mukhtar Ahmad, PW-9 Bahadar Ali and PW-10 Jafar Ali, ASI.
The appellant and acquitted accused were examined under Section 342 Cr.P.C. wherein they denied the commission of offence and stated that they have been falsely implicated in the case because of the appellant's quarrel with complainant objecting the visit of several persons in the complainant's house and has also asked the owner of the house to get the same vacated from the complainant and further PWs were inimical to them being under influence of the complainant. After recording of evidence and examining the appellant, so also acquitted accused, the trial Court convicted the appellant under Section 10(2) of the Ordinance and sentenced him to ten years R.I. with fine of Rs. 20,000/- or in default of payment of fine to undergo three months R.I. while the appellant and acquitted accused were acquitted from the charge of Section 322 PPC extending benefit of doubt. The appellant appealed before the Federal Shariat Court which was dismissed maintaining the conviction against the appellant with modification in sentence and fine as mentioned above.
We have heard Mr. Muhammad Zaman Bhatti, learned ASC for State and have gone through the record and the proceedings of the case in minute particulars.
Mr. Muhammad Zaman Bhatti, learned ASC for the State has contended that the prosecution has fully established its case by producing independent and cogent evidence. He further contended the appellant has committed an heinous offence, therefore, he is not entitled to any leniency.
No one is present on behalf of appellant though called.
On the point of commission of zina by the appellant upon victim/deceased Mst. Asia, the prosecution examined Mukhtar Ahmad, father of victim/deceaed Mst. Asia as PW-8 and Bahadar Ali son of complainant as PW-9. They both admitted that after divorce Mst. Asia deceased was living with them and appellant Shaukat Ali was residing in their neighbourhood who developed illicit relations with deceased Mst. Asia. Both the PWs deposed that they time and again asked appellant to discontinue illicit relations with Mst. Asia but appellant did not pay any heed to it and went on continuing committing zina in their house which the said PWs had seen about two years prior to the recording of their statements but they did not lodge any report with the police due to family honour and because of intervention of respectable persons. There is no other independent and reliable evidence except the testimony of both said PWs who deposed to have seen appellant once or twice committing zina upon Mst. Asia deceased and she subsequently became pregnant and after four days of delivery of a baby, she expired. Prima faice both the PWs deposed that they were in the knowledge of the alleged commission of zina between appellant and Mst. Asia being committed in their house about two years prior to the registration of the case but did not initiate criminal proceedings against them. Their testimony with regard to having seen commission of zina in their house when they were most of the time away from the house, considering also the fact that they did not initiate the criminal proceedings against appellant after having seen the said occurrence would appear to be unnatural and not confidence inspiring. Mere fact that Mst. Asia became pregnant and gave birth to a baby and after four days she expired would not by itself ex-facie prove the commission of zina by appellant. Burden to prove commission of zina always lies upon the prosecution which in the instant case it has failed to prove. Criminal proceedings were initiated after the death of Mst. Asia. Considering the fact that an attempt to miscarriage foetus was also done at the instance of appellant and acquitted co-accused was also not proved by the prosecution beyond reasonable doubt. The learned State counsel thought argued at length yet could not point out any cogent evidence on record to establish the allegation against appellant in the case.
Resultantly, we allow this appeal while giving the benefit of doubt to appellant. He is in custody. He be released forthwith if not required in any other case.
(Javed Rasool) Appeal accepted.
PLJ 2006 SC 907
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., M. Javed Buttar and Tassaduq Hussain Jillani, JJ
GHULAM ABBAS and others--Petitioners
versus
STATE--Respondent
C.P. Nos. 848-L, 920-L & 921-L of 2002 and Jail P. No. 2 of 2003 a/w Crl. Misc. No. 62/2005, in Crl. P. No. 920-L/2002, decided on 12.12.2005.
(On appeal against the judgment dated 2.10.2002, passed by the Lahore High Court, Lahore in Crl. Appeals Nos. 622, 637, 638/97 and M.R. No. 247-T of 1997)
Pakistan Penal Code 1860 (XLV of 1860)--
----Ss. 391 & 396--Constitution of Pakistan, 1973, Art. 185(3)--Docoity--Conviction and sentence recorded against accused, assailed--Held: If the sentence of death of one accused was maintained, then remaining convicte d would also be liable to the same punishment--Leave granted. [P. 910] A
AIR 1953 Assam 44; AIR 1955 Hyd. 147; 1986 PCr. LJ 2192; PLD 2004 Kar. 232; 2004 SCMR 199 and 2004 SCMR 1170 ref.
Syed Mazhar Ali Akbar Naqvi, ASC for Petitioner (in Crl. P. 848L/02).
Nemo for Petitioner(s) (in Crl. P. 920-L, 921-L/02 and JP. 2/2003).
Mrs. Afshan Ghazanffar, AAG. for State.
Dates of hearing: 12 and 13.12.2005.
Order
Iftikhar Muhammad Chaudhry, C.J.--Listed petitions have been filed for leave to appeal against the judgment dated 2nd October 2002 passed by the Lahore High Court, Lahore.
Precisely stating facts of the case are that vide FIR Ex. PC/1 dated 1st April 1997 lodged by Sheikh Attique Ahmed (PW-12) at Police Station Cantt. Sialkot, alleging therein that when he was present in his house alongwith Zaheer Haider his business partner, his wife Farida Atteeq and two sons namely Mohsin Ateeq aged about 11/12 years and Danish Ateeq aged about 8/9 years and his father Sh. Shafique Ahmed who was lying on the bed, all of a sudden three persons duly armed with pistol entered into the room. His wife made a shriek on seeing them, his father got up from the bed and by raising Lalkara made an attempt to catch hold of one of the accused. At the same time one of the accused fired with his pistol hitting his father on is neck who fell down on the ground. The third accused kept watch while holding pistol in his hand and also threatened them that if any one of them made an attempt to move he would be met with the same fate. Two of the accused took his son namely Mohsin Ateeq to adjacent room and from an Almirah, they took away golden ornaments, one Rado Writs watch (Ladies) and also searched for Cash. One of the accused kept watch on the inmates of room while holding pistol and also continued threatening them. The accused remained in his house for 25/30 minutes and thereafter scaled over the wall behind the house upon which he and others raised hue and cry attracting their neighbours. His father was shifted to hospital but he died on his way to hospital. Accordingly FIR of the incident was registered. Accused persons involved in the commission of offence were arrested and following six persons were sent up to answer the charge:--
Ghulam Abbas.
Arshad Masih.
Iftikhar Ahmad alias Chand
Irfan Javed alias Bhaia.
Munir Ahmad.
Shaukat Ali.
Learned trial Court vide judgment dated 6th November 1997 convicted/ awarded following sentence to the accused persons:
U/s. 458 PPC
Iftikhar Ahmed @ Chand, Arshad Masih and Ghulam Abbas
14 years R.I. with payment of fine of Rs. 50,000/- and in default whereof to suffer further two years R.I. each.
U/S. 458/114 PPC
Irfan Javed @ Bhaia, Munir Ahmad and Shaukat Ali
14 years R.I. with payment of fine of Rs. 50,000/- and in default whereof to suffer further two years R.I. each.
U/S. 395 PPC
Ghulam Abbas, Arshad, Iftikhar Ahmad @ Chand, Irfan Javed @ Bhaia, Munir Ahmad and Shaukat Ali.
R.I. for life with payment of fine of Rs. 50,000/- and in default whereof to suffer further two years R.I. each.
U/S. 396 PP
Ghulam Abbas, Arshad Masih and Iftikhar @ Chand.
Death sentence subject to confirmation by the High Court, with payment of fine of Rs. 50,000/- and in default whereof to suffer further two years each.
U/S. 396 PPC
Irfan Javed @ Bhaia, Munir Ahmad and Shaukat Ali.
R.I. for life with payment of fine of Rs. 50,000/- and in default whereof to suffer further two years R.I. each.
U/S. 412 PPC
Ghulam Abbas, Arshad Masih, Iftikhar Ahmad @ Chand, Irfan Javed, Munir Ahmad and Shaukat Ali.
10 years R.I. with payment of fine of Rs. 20,000/- and in default whereof to suffer further one year R.I. each.
Learned High Court, however, up-held the sentence of death of one of the petitioner namely Ghulam Abbas, whereas sentence awarded to Arshad Masih and Iftikhar Ahmed alias Chand was reduced to life imprisonment. Sentence awarded to other convicts namely Irfan Javed @ Bhaia, Munir Ahmed and Shaukat Ali was reduced to seven years R.I. As far a remaining sentences under Section 396 PPC awarded to the convicts were maintained by the High Court by means of impugned judgment. Listed petitions have been filed on behalf of convicts for leave to appeal.
Learned counsel appearing in Crl. Petition No. 848-L of 2002 contended that in accordance with the provisions of Section 391 read with Section 396 PPC, the accused deserve for same sentence as they are all equally responsible for the commission of offence. On having reduced the sentence of the other convicts, the sentence of the petitioner Ghulam Abbas is not liable to be maintained. To substantiate his plea he placed reliance upon the cases of puranmal Agarwalla and others v. Rautmal Pincha (AIR 1953 "Assam 44), Shivappa and others v. Hyderabad State (AIR 1955 Hyd. 147). Geedo and others v. The State (1986 P.Cr. LJ 2192), Abdul Qayyum and others v. The State (PLD 2004 Karachi 232), Khalid Mehmood and four others v. The State (2004 SCMR 199).
It may be noted that as far as convict Munir Ahmed is concerned he entered into compromise with the C.Rs. of the deceased whereas Irfan Javed @ Bhaia and Shaukat Ali are contesting the conviction awarded to them. As far as question in respect of acceptance or otherwise of the compromise is concerned, it will be dealt with in view of the judgment in the case of Muhammad Rawab v. The State (2004 SCMR 1170). However, at this stage having seen the law relied upon by the learned counsel of the petitioner-Ghulam Abbas, prima facie, we are of the opinion that if the sentence of death of Ghulam Abbas is maintained then remaining convicts would also be liable to the sentence for death. Therefore, while granting leave to appeal in their cases as well notices be also issued to them to explain as to why their sentences may also not be enhanced.
Thus for the above reasons inter alia, to examine the contentions put forward by the learned counsel for petitioners as well as merits of the case to the extent of other accused persons, leave to appeal is granted.
(Javed Rasool) Leave granted.
PLJ 2006 SC 910 [Suo Motu Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ. Khalil-ur-Rehman Ramday, Tassaduq Hussain Jillani & Ch. Ijaz Ahmed, JJ.
SUO MOTU PETITION
(LOST OF LIVES OF INNOCENT CHILDREN DUE TO KITE FLYING)
Suo Motu Petition No. 11 of 2005, decided 25.10.2005.
(Petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan)
Punjab Prohibition of Dangerous Kite Flying Activities Ordinance (LIX of 2001)--
----Preamble--Punjab Local Government Ordinance (XIII of 2001), Ss. 141, 142, 143, 144 & Fourth Schedule, Part 11, Constitution of Pakistan, 1973 Arts. 9, 24, 184 (3) & 204--Suo Motu action under Art. 184(3) of Constitution of Pakistan, 1973, origination from article sent by a citizen of Pakistan with request that on having gone through said article restriction be imposed on kite flying as it was causing loss of money as well as human being--Validity--Held: Punjab Prohibition of Dangerous Kite Flying Activities Ordinance, 2001 did not fulfill certain requirement as indicated by High Court and result was that day by day incidents of causing damages to public property and life were increasing on account of kite flying activity--Laws so far applicable in province of Punjab, seemed to be insufficient to achieve object--Provisions of Ss. 141 & 142, if adhered to enforced thing even then there was need to promulgating stringent law to nab those persons, who were directly or indirectly responsible for causing danger to lives of innocent citizens as well as property owned by individual and company responsible for supply electricity which involved denial of fundamental rights of citizens and it would not be fair to allow kite--flying activity at cost of life of human being and property, owned by Government institution or private--Supreme Court in view of situation created by kite flying issued directions to the following concerned that manufacturers seller of kites--Kite flying strings of all kind including "sharp Maanjha", metallic wire and nylon cord are retrained to indulge into such trade--No one might be allowed to flying kites with "sharp Maanja", metallic wire, nylon cord or any sort of string during period of operation of same order--Inspector General Police and representatives of the local government would ensure compliance of such order in letter and spirit--However if any one is found violating he shall be served with notice for facing proceedings of contempt of Court and would be dealt with in accordance with provisions of law of contempt of Court and if found guilty would be punished adequately--If in meantime, any untoward incident took place the concerned police station would registered case against the person including manufacturers and sellers of the kites and kite flying strings and after investigation case would be forwarded before the Court of law--The owners/occupants of the house, shops, hospitals building would not allow kite-flying activity on their roof-tops, failing which they would be liable for action of contempt of Court and concerned SHO--Kite Flying Associations and Provincial Government would examined ways and means jointly to prevent the citizen from loss of life and property in future--Notice be issued through newspapers at cost of Provincial Government to all the concerned of Kite-Flying. [P. 919 to 921] A & B
Mr. Shahid Hamid, Sr. ASC, Mr. M. Ismail Qureshi, Sr. ASC, Mr. Ahmer Bilal Sufi, ASC and Mr. Muhammad Fahim Shehzad, On Court Notice.
Mr. Aftab Iqbal Chaudhry, A.G. (Punjab) and Dr. Danishwar Malik, Dy. AG (Punjab), for Govt. of Punjab.
Mr. Javed Shaukat Malik, ASC and Mr. M.A. Qureshi, AOR for Govt. of NWFP.
Mr. S.M. Masud, ASC and Mr. Mahmood-ul-Islam, AOR for K.B. Traders.
Mr. Muhammad Akram Arain, Chief Executive (WAPDA) for WAPDA.
Mr. Muhammad Afzal Sindhu, ASC and Haji M. Qayyum Mazhar, AOR for Faisalabad Kite Flying Association.
Date of hearing : 25.10.2005.
Order
Iftikhar Muhammad Chaudhry, C.J.--The petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan [herein after referred to as "the Constitution"] originates from an article appeared in the weekly "Ghazwa" Lahore dated 8th September 2005, sent by one Syed Riaz Ahmed Zaidi son of Nazeer Ahmed Zaidi, resident of Rahimyar Khan with the request than on having gone through it, restriction be imposed on kite flying as it is causing loss of billions of rupees of property as well as valuable human being. The article is published under caption wherein tragic incidents of deaths of innocent children by a sudden incision on their throat, caused by a kite-string have been reported. These incidents resulted in number of deaths of motorcyclists and pedestrians, when reinforced kite string cut their throats. It may be noted that for the purpose of kite flying, chemical coated twines, mixed up with ground glass, having sharp edges, is prepared. The mixture, which is coated on the thread is commonly known as "sharp Maanjha", which is a secret paste made from eggs, wet flour, or boiled rice, and mixed up finely with ground glass, glue, colours and few other ingredients. The number of reports available on recent indicates that if a flying kite is cut, the children starts running into the streets or on roof-tops, armed with bamboo sticks or stone attached to the "door" other then the twines, with an idea to grab the trailing kite line that is floating downwards to the ground from the sky. This race amongst the children results in causing their deaths, when they fell down from the roof-tops or met an accident with vehicular automobiles. Similarly, some of the children use steel wire attached with the stone, to get at kites that are cut and if such wire drops on overhead high power transmission lines, the power breakdown occurs due to tripping, which causes damage of the electricity installation including domestic electric appliances and deaths due to electrocution of innocent persons.
The reports submitted by the Police department reveals that the incidents of death and injuries took place due to kite-flying are not reported and some of the cases had been disposed of by the Police under Section 174 Cr.P.C. without probing into the cases in depth.
Similarly, despite of registration of cases by the Police, under Punjab Prohibition of Dangerous Kite Flying Activities Ordinance, 2001 [herein after referred to as "the Ordinance 2001"] and prior to its promulgation, by initiating proceedings under Section 144 Cr.P.C., the object of avoiding ugly incidents of deaths and injuries to innocent citizens, could not be achieved. As majority of cases registered by the Police had been cancelled for no other reasons but for what of proof to establish accusation against any particular person.
It may be noted that before the promulgation of Ordinance, 2001, the Administration had been initiating action under Section 144 Cr.P.C. by imposing ban on kite flying activities. The Courts, from time to time, had given number of suggestions to control this menace, as it is evident from the case of M.D. Tahir, Advocate v. Government of Punjab (2001 CLC 1180). Relevant para therefrom is reproduced therein below:--
"The learned Advocate General, Punjab has placed on record measures taken by the respondents in obedience of the direction of the learned Single Judge of this Court, and as directed by us vide order dated 13.2.2001, which are reproduced hereunder:--
(1) Legal Order under Section 144 Cr.P.C.
District Magistrate Lahore has issued prohibitory orders under Section 144, Cr.P.C. imposing complete ban on manufacture, sale and use of metal wire for kite-flying or any aerial firing, or misuse of loudspeakers, etc, (Copy attached). This order has been passed for ensuring maintenance of public peace and tranquility and for preventing any danger human life or property.
(2) Legal Security Bonds
All owners/managers of those venues/places were public functions of Basant are being arranged, like hotels, Havelis, etc. have been made to furnish security bonds in sum of Rs. 5 lacs each for ensuring good behaviour and for adherence to code of conduct. More then 2000 such security bonds have been got executed and in case of violation concerned persons have been warned that in addition to strict action per law against them, these persons will also be made to pay the said amount of penalty for violation of code of conduct.
(3) Operational Special Teams
25 Special Teams/Squads have been constituted for Lahore, which include Magistrate, SHOs, representative of WAPDA and notable citizens of area. These teams are conducting regular raids for the last one week to identify those units which are manufacturing metal wire for use in kite flying. These special teams/squads have also been tasked to conduct raids against those who are using metal wires for kite-flying. More than 600 raids have been conducted by these Teams/squads.
(4) Penal
Strict penal action is being taken against those who are found guilty of use of metal wire for kite flying, or for aerial firing, 68 cases have been registered in Lahore and 78 persons have been arrested for violation of law on this count.
(5) Warnings
Apart from this, general public is being warned also against use of metal wire for kite flying, or any aerial firing during Basant related activities as this causes danger to public life and property. Warning notices are being issued and more than 2000 such handbills have been distributed in those areas of Lahore, where Basant activities are more intense.
(6) Publicity
Massive publicity is also being done to solicit support of general public in these efforts of administration. D.C. Lahore and Officers of Divisional Administration have been part in two Talk-Shows in this regard which have been telecast on PTV in which also general public was requested to desist from any illegal activities during Basant which endanger lives of other people. Press is also being requested to give positive coverage to these efforts. Recent Press clippings in this regard as attached."
It may be noted with regret that after the pronouncement of above judgment on 15th February 2001, the Ordinance 2001 was promulgated on 26th December 2001 but without incorporating any of these conditions therein. A perusal of the Ordinance 2001 reveals that it does not contain preventive mechanism, nature of criminal liability, followed by a penal offence, for causing deaths and injuries, particularly to the innocent citizens including the children, who have sustained losses of life and property for none of their fault. In number of cases deaths had taken place by a sudden incision of throat by a reinforced kite flying string to the motorcyclist and pedestrians.
The Chief Secretary, in para-wise comments has admitted that the Government of Punjab was apprised through public complaints, media reports and other sources that kite flying, particularly in Lahore, had assumed alarming proportions and posed a grave danger to human life due to use of metallic wire/nylon by the kite flyers, therefore, in order to protect and safeguard human lives from such dangerous activities, the Government promulgated the Ordinance 2001. But in our opinion, the Ordinance, 2001 does not fulfill certain requirements as it has been indicated herein above, and the result is that day by day the incidents of causing huge damage to the public property and life are increasing on account of kite flying activity.
In addition to para-wise comments, submitted by the Chief Secretary, the Advocate General (Punjab) in an addendum has admitted that the Ordinance, 2001 suffers from omissions and lacunas. Relevant portion therefrom reads as under:--
"........A bare perusal of the Ordinance denotes that nothing dealing with the material used in the dangerous kite flying has been provided therein. It is queer that the kite flyers who use "tandy" (nylon cord) for flying kites may be nabbed and proceeded against, therefor but the cause thereof i.e. the manufacture, transportation, storage and sale of nylon cord has nowhere been dealt with in the entire Ordinance. Legislation to supply the omission shall got to the root of the cause in curbing the dangerous kite flying effectively and efficiently........"
Above admission of the Government has strengthened to our above conclusion.
Year 11 KV Revenue 132 KV Revenue Net Equip. Total loss
Tripping loss Tripping loss Tripping Net loss Loss
2000 82688 320,004,844 3430 254,822,968 86118 574,887,812 680,000 575,567,812
2001 87255 363,656,787 3551 284,146,399 90806 647,803,186 7,321,000 655,124,186
2002 95211 425,159,340 4518 387,392,649 999729 812,551,989 568,000 813,119,989
2003 102677 489,066,802 5355 489,689,561 108032 987,756,364 30,537,170 1,009,293,534
2004 115667 564,712,022 5582 523,253,069 121249 1,087,965,091 5,897,000 1,093,862,091
2005 124917 483,436,325 4867 456,190,777 129784 939,627,102 12,211,056 951,838,158
up to
September
(i) Interruption in supply.
(ii) High voltage develops in the system.
(iii) flow of heavy current in the lines.
(iv) Weakens the joints.
(v) Reduce life of conductor & transformer.
(vi) Complete damage of equipment.
(vii) Fatal/non-fatal accidents.
(viii) Revenue loss.
He had placed on record photographs, depicting that the kite flyers climbs over the high power electric transmission installations, with an idea to grab trailing kite line, which often proves fatal for their lives either due to their electrocution or by falling down from these electric installations.
Learned counsel further pointed out that the consumers of electricity also sustained losses as "tripping" causes sudden discontinuation of electricity results in blowing up domestic electric appliances, computers, etc. Similarly due to discontinuation of the electricity, many other persons suffer equally, including the patients, being operated upon in hospitals as breakdown of electricity threaten to their lives as well. He emphasize that on one hand kite flying provides enthusiasm to kite flyers but at the same time, it becomes a serious hazard to public peace and tranquility, as number of citizens have lost their lives and have sustained permanent injuries etc., therefore, strong preventive measures to control such menace is called for.
"13. According to Oxford dictionary, `life' means state of all functional activity and continual change peculiar to organized matter and specially to the portion of it constituting an animal or plant before death and animate existence.
In Black's law Dictionary, "life" means "that state of animals, humans and plants or of an organized being, in which its natural functions and motions are performed, or in which its organs are capable of performing their functions. The interval between birth and death. The sum of the force by which death is resisted.......`life' protected by the Federal Constitution includes all personal rights and their enjoyment of the faculties, acquiring useful knowledge, the right to marry, establish a home and bring up children, freedom of worship, conscience, contract, occupation, speech, assembly and press."
The Constitutional Law in America provides an extensive and wide meaning to the word "life" which includes all such rights which are necessary and essential for leading a free, proper, comfortable and clean life. The requirement of acquiring knowledge, to establish home, the freedoms as contemplated by the Constitution, the personal rights and their enjoyment are nothing but part of life. A person is entitled to enjoy his personal rights and to be protected from encroachment on such personal rights, freedom and liberties. Any action taken which may create hazards of life will be encroaching upon the personal rights of a citizen to enjoy the life according to law. In the present case this is the complaint the petitioners have made. In our view the word `life' constitutionally is so wide that the danger and encroachment complained of would impinge fundamental right of a citizen. In this view of the matter the petitioner is maintainable."
He also stated that due to the kite flying activities, citizens are being denied the fundamental right of the protection of the property envisaged under Article 24 of the Constitution. To elaborate his arguments, he stated that electric installations owned by LESCO belongs to the public in large, therefore, any loss sustained by it shall be incidentally the loss of the public and similarly blowing up of domestic electric appliances, computer etc. due to disconnection of the electricity on account of tripping causes direct denial of protection to their property, therefore, substantial questions involving fundamental rights of the citizens, calls for an authoritative pronouncement from this Court to control the kite flying activities in an effective manner.
Mr. Muhammad Ismail Qureshi, ASC, who also appeared on Court notice reinforced the arguments of petitioners' counsel and put forward his view point to canvas that as the kite flying activities are hazard to lives and the property of the citizens, therefore, the same deserves to be banned completely.
Mr. Ahmer Bilal Sufi, ASC who had also appeared voluntarily, pointed out number of defects in the Ordinance 2001 and stated that it is required to be amended drastically. He suggested that the Government should amend it in such a manner so it may acquire full control to prevent the kite flying activities, particularly on the roof-tops and thereby populated areas and if at all it is indispensable to allow kite flying activities being so called part of the culture of Lahore, then the measures should be adopted so the kite flying may make place out side the urban area as in the neighboring countries, such festivals of kite flying take place for limited purpose in the open places. He quoted the example of Jodhpur and Ahmedabad. It was also contended by him that the Government may examine the provisions for the purpose of granting compensation to the victims, after recovering the same from the Kite Flying Association, who are responsible to manage the kite flying activities.
Mr. S.M. Masood, learned counsel who appeared on behalf of K.B. Traders, stated that as far as thread manufacturers are concerned, they cannot be held responsible for causing damage to the lives and properties of the citizens, due to kite flying, because they being the industrialists supply thread for number of other purposes. He explained that actually trouble arises when the kites are flied with the metallic wire, ordinarily taken out from clutch-wire of the motorcycle, and the thread coated with "sharp Maanjha", therefore, no restriction can be imposed upon the weavers of thread.
Mr. Muhammad Afzal Sindhu, ASC appeared on behalf of Kite Flying Association, Faisalabad. His argument was that in Faisalabad no untoward incident of causing death of innocent citizen by a sudden incision on throat of any person with the kite flying string had taken place, therefore, no action is called for against the association.
At this stage, a young boy namely Muhammad Fahim Shahzad appeared in Court and placed on record his written statement mentioning therein that when he was going back after taking B.A. examination, suddenly he got incision on his throat, with the kite flying string. Though he is alive but without speaking powers, as his vocal cords have become un-functional, therefore, not only his educational career has spoiled but he had also no social life and now he has also developed breathing problem.
On his behalf Mr. Shahid Hamid, learned ASC had placed on record certain documents compiled by his counsel namely Mr. Muhammad Akram Sheikh, Sr. ASC, who is on adjournment as he is out of country. These documents are sufficient to understand the miseries being suffered by him due to kite flying activity.
It is important to note that in pursuance of order dated 7th October 2005, the Government of Punjab through Inspector General of Police was directed to issue instructions to all concerned Superintendent of Police to register the names of the persons, dealing with the trade of thread as well as manufacturing of kites. In pursuance of this order, the Inspector General of Police (Punjab) had furnished the details of the dealers, involved in the trade of the thread and in kite manufacturing. Their names have been registered with the local police, except few of them as directions have already been issued to the DPOs, to ensure their registration as well. As a result of his exercise, the Police had got complete data of the persons, engaged in the preparation of kite flying strings with "Maanjha" and manufacturers of kites. As far as wholesale dealers are concerned, they are few in numbers whereas the number of retail seller retail of kite flying strings and kites is on the high side. Thus, now it is not difficult for police to initiate action against such persons, who are involved in the business of manufacturers of kite flying strings, "Maanjha" and kites because on account of their such activity, the general public throughout the country has been exposed to danger to their lives and property, as it has been noted herein above in detail. It is the duty of the Provincial Government to ensure the application of Articles 9 and 24 of the Constitution, which guaranteed the fundamental rights of life, liberty and protection to property of the citizens.
Material so brought on record, abundantly makes it clear that the kite flying activity, prima facie, is no more the activity of enthusiasm but a serious threat to the lives of innocent citizens. The laws so far applicable in the Province of Punjab, seems to be insufficient to achieve the object, as it has been discussed herein above. It may be noted that the provisions of Punjab Local Government Ordinance, 2001 i.e. Ss. 141 and 142 etc. even if adhered to/enforced fully, even then there is need of promulgating a stringent law, to nab those persons, who are directly or indirectly responsible for causing danger to the lives of innocent citizens, as well as the property owned by the individual and the company, responsible for supply of electricity.
Learned Advocate General stated that Local Governments Election had taken place recently and elected representative i.e. Nazims and Naib Nazims so far had not taken over completely charge of their offices, therefore, if some time is given, then Inspectors shall be appointed in terms of Section 142 of the Local Government Ordinance, 2001, to prevent the offences of manufacturing, keeping, selling kite flying string, or any material which can be used in preparation of kite flying string and kites, causing danger to human life or disruption in electric supply, in accordance with item 34, Part-II, 4th Schedule, under Sections 141, 142, 143 and 144 of the Local Government Ordinance, 2001.
We are ready to accept his request but on having taken the cognizance of the matter, which involves denial of fundamental rights of the citizens, enshrined in Article 9 and 24 of the Constitution, it would not be fair to allow the kite flying activity, at the cost of life of human being and property, owned by the Government institution or private individual. As such, keeping in view overall facts and circumstances of the case, which have been discussed herein above in detail, case is adjourned to 8th December 2005 with the following directions:--
(i) Pending decision of the petition, the manufacturers/sellers of kites, kite flying strings of all kinds, including the "sharp Maanjha", metallic wire and nylon cord, are retrained to indulge into this trade, either manufacturing or selling in wholesale or in retail, on any business or open place, till the next date of hearing. Similarly, no one, whosoever he may be, is allowed to fly kites with "sharp Maanjha", metallic wire, nylon cord or any sort of string, during the period of operation of this order.
(ii) Inspector General of Police (Punjab) and other Provinces with the assistance of Nazim/Naib Nazim, DCOs, Councilors of the District, Towns, Tehsils as well as Union Councils, shall ensure the compliance of this order in letter and spirit. However, if any one is found, violating the order, he shall be served with a notice by the concerned SHO of the Police
Station, to appear before this Court on the next date of hearing for facing the proceedings of contempt of Court and on having taken surety bonds from each of them in the sum of Rs. 5,000/- he or they shall be released. Photo-copy of the ID Card of the contemner be also retained for the purpose of identification at the time of hearing of the case.
(iii) The alleged contemner, if any, shall be dealt with in accordance with the provisions of law of Contempt of Court and if found guilty, shall be punished adequately.
(iv) The Inspector General of Police (Punjab) and other Provinces shall transmit a report qua the incidents of violations of the order of the Court, to the Registrar of this Court immediately, who shall issue notices to the violators, forthwith, to appear and explain as to why action for contempt of Court may not be initiated against them. The cases of all such persons shall be fixed on the next date of hearing.
(v) If, in the meantime, any untoward incident takes place within the jurisdiction of a particular Police Station, the concerned SHO shall register a case against the persons, including the manufacturers and sellers of the kites and kite flying strings, and after investigation, cases shall be forwarded against them before the Court of law, notwithstanding the fact that they may be facing the proceedings of violating the order of this Court.
(vi) The Chief Secretary of the Provincial Governments shall ensure necessary amendments, if needed, in the relevant laws, in the meantime, in order to make the existing laws viable for the purpose of controlling kite flying activities, within the urban areas.
(vii) The owners/occupants of the house, shops, hospitals, buildings, etc. shall not allow kite-flying activity on their roof-tops, failing which, they would also be liable for action of contempt of Court and the concerned SHO shall submit a report against them, as well, in the manner specified herein above.
(viii) The Kite Flying Associations and the Provincial Government shall examine ways and means, jointly, to prevent the citizens from loss of life and property, in future.
(ix) The Provincial Governments shall give wide publication to this order through press and electronic media, so every one may know that kite flying activity has been banned by this Court.
(x) The Chairman of Lahore Electric Supply Company shall submit a report indicating that how many trippings took place during the period of operation of this order and the quantum of loss, if sustained by it.
(xi) The Secretary, Health Department, Government of Punjab is directed to examine, in the meantime, as to whether officially arrangements can be made for the treatment of Muhammad Fahim Shahzad, within or out side Pakistan. A report in this behalf shall be submitted by him on the next date of hearing.
Notice in the meantime, be issued through newspapers at the cost of Provincial Governments, to the manufacturers/sellers of kites, kite flying strings of all kinds, including the "sharp Maanjha", metallic wire and nylon cord, to appear, if desired/advised, on the next date of hearing in support of their respective pleas. Notice to Nazims, Naib Nazims of the Districts, DCOs and Councilors be also issued through publication at the cost of Provincial Governments.
Attorney General for Pakistan as well as Advocates General of the Provinces be also requested to appear and assist the Court.
Herein above are the reasons of our short order of even date.
(Rafaqat Ali Sohal) Order accordingly.
PLJ 2006 SC 921 [Appellate Jurisdiction]
Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ.
HABIB BANK LTD.--Petitioner
versus
GHULAM MUSTAFA KHAIRATI--Respondent
C.P. No. 411-K of 2004, decided on 10.10.2005.
(On appeal from the order dated 12.3.2004 passed by Federal Service Tribunal at Karachi in Appeal No. 1472(K)/1998)
(i) Master and Servant--
----Law of--Applicability--Termination of respondent's service of employee of petitioner--Petitioner/bank was being managed run and controlled by Federal Government at the time when respondents service was terminated--Law of Master and Servant was thus, not applicable in as much as, petitioner bank was not a privately managed bank at that time and further employees of petitioner bank had been given guarantees and by that time Rules for petitioner's employees had been framed and were in existence--Respondent's service thus, could not have been terminated without issuing show-cause notice calling upon his explanation and holding of requisite inquiry. [P. 926] C
(ii) Service Tribunal Act, 1973 (LXX of 1973)--
----S. 2-A--Constitution of Pakistan (1973), Art. 212--Petitioner's contention that when impugned judgment was announced, Service Tribunal had ceased to have jurisdiction in as much as by that date petitioner bank after completion of privatization process had been handed over to new owner--Contention now being raised was not available to petitioner at the time when appeal was argued before Service Tribunal, therefore, Tribunal could not have considered and dilated upon the same which has been raised before Supreme Court for the first time--Petitioner did not raise such contention in its petition for leave to appeal--Such plea even otherwise would be of no help to petitioner in as much as, mere fact of privatization of Nationalized Institutions by way of transfer/sale of its controlling shares by Federal Government to private party would not be sufficient to oust jurisdiction of Service Tribunal to proceed with case of employees of such institution, as at the time of filing appeal before Service Tribunal he was civil servant as per terms of S.2-A of Service Tribunal Act, 1973--Subsequent development would not deprive or strip such civil servant of his status and the same would have no adverse effect on his pending appeal. [P. 925] A
(iii) Service Tribunal Act, 1973 (LXX of 1973)--
----S. 2-A--Civil Servant--Termination of respondents service on the ground that criminal case was registered against him and he was arrested in charge of criminal offence--Legality--Mere allegation of commission of an offence against a person and registration of F.I.R. in respect of certain offence against him would not ipso facto make him guilty of commission of such offence--Such person would continue to enjoy presumption of innocence until convicted by a Court of competent jurisdiction after a proper trial with opportunity to defend himself of allegations levelled against him--Removal of respondent on the ground that respondent had lost faith, confidence and trust of competent Authority being illegal order was not be sustainable in law. [P. 925] B
(iv) Service Tribunal Act, 1973 (LXX of 1973)--
----S. 2-A--Constitution of Pakistan (1973), Art. 212 (3)--Limitation Act (IX of 1908), Ss. 5 & 14--Appeal against termination of service--Limitation--Condonation of delay, assailed--Delay was condoned by Service Tribunal after minute and detailed examination of facts and circumstances of case, grounds advanced by respondent for delay and pronouncement made by Supreme Court in a large number of cases laying down principles for condonation of delay in filing appeals and applications etc--Service Tribunal having exercised its discretion judiciously and properly, interference in such exercise of discretion was not warranted.
[Pp. 927 & 928] D, E
2004 PLC (CS) 809; 2004 PLC (C.S) 802; PLD 2001 SC 176; 2004 SCMR 145; 1994 SCMR 2232; 2003 PLC (CS) 796 and 2004 SCMR 145, ref.
Mr. Shahid Anwar Bajwa, ASC & Mr. Ahmad Ullah Faruqi, AOR for Petitioner.
Mr. Suleman Habib-ullah, AOR for Respondent.
Date of hearing : 10.10.2005.
Order
Saiyed Saeed Ashhad, J.--This petition for leave to appeal has been filed by petitioner Bank assailing the judgment dated 12.3.2004 of the Federal Service Tribunal, (hereinafter referred to as the "Tribunal") in Appeal No. 1472(K)/1998 whereby the Tribunal has set aside the order of termination of the respondent and reinstated him in service with full monetary and other consequential benefits.
Facts requisite for disposal of this petition are that respondent was employed as Senior Executive Vice President in Habib Bank Limited. He was involved in some criminal charges for which an FIR was registered and he was arrested therein. As a result of his arrest which prolonged on account of dismissal of his bail applications he could not perform his duties on the post held by him. The petitioner Bank after observing that the post could not be kept vacant for an indefinite period is it was not known when he would be enlarged on bail or released from the charges leveled against him and further that on account of his involvement in criminal acts they had lost faith and confidence in him, thus constraints on the part of the management from allowing to occupy a very senior and confidential position terminated his services with immediate effect in pursuance of Clause 15 of the Habib Bank Limited (Staff) Service Rules, 1981 on three months pay in lieu of notice.
The respondent submitted his representations legal notices etc but the petitioner Bank did not redress the grievance of the respondent on the ground that his termination was simpliciter and further that his service with the bank was governed by the principle of master and servant which gave ample power to the petitioner Bank to remove/terminate an employee after serving of notice or pay in lieu thereof and there was no requirement of providing opportunity of personal hearing.
As the petitioner Bank failed to redress has grievance the respondent approached High Court of Sindh by filing Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan. This petition was dismissed after incorporation of Section 2-A in the Service Tribunals Act, 1973 (hereinafter referred as the "Act"). It will be advantageous to reproduce the observations of the High Court regarding condonation of delay in filing appeal before the Tribunal as under:
"The petitioner, apart from the available pleas, would be free to apply for condonation of delay under Section 5 of the Limitation Act for the reason that the petitioner has been pursuing his petition diligently and in good faith."
The order of the High Court was challenged by respondent before this Court by way of CPLA No. 52 of 1998. The CPLA was dismissed vide order dated 4.6.1998 upholding the order of the High Court to the effect that the Tribunal would have the sole jurisdiction to proceed with the case of the respondent after incorporation of Section 2-A in the Act. Consequently respondent filed appeal under Section 6 of the Act on 4.4.1998.
The petitioner objected to the maintainability of appeal before the Tribunal on the ground of limitation. The Tribunal after minute and thorough examination of the provisions of Section 5 of the Limitation Act and taking into consideration the facts and circumstances of the case condoned the delay by placing reliance on the pronouncements of this Court laying down the principles for condonation of delay.
Feeling aggrieved and dis-satisfied with the impugned judgment the petitioner Bank filed this petition for leave to appeal.
We have heard the arguments of Mr. Shahid Anwar Bajwa learned ASC on behalf of petitioner and Mr. Suleman Habibullah learned AOR for respondent.
Mr. Shahid Anwar Bajwa in support of the petition raised the following three contentions,--
(i) that on 12.3.2004 when the judgment was announced, the Tribunal had ceased to have jurisdiction to proceed with the case of the respondent inasmuch as by that date the petitioner Bank after completion of privatization process had been handed over to Agha Khan Foundation as they had acquired 51% interest in the petitioner Bank whereafter it could not be said that the Bank was being run controlled and managed by the Federal Government thus depriving the respondent of the status of civil servants as per Section 2-A of the Act.
(ii) that the petitioner on account of his involvement in criminal acts and offences of serious nature for which FIR No. 98 of 1994 dated 26.12.1994 was registered by FIA under Sections 161/162 PPC read with Section 5(2) of Prevention of Corruption Act (II of 1947) was found to be dishonest unreliable, unscrupulous and tricky person becoming unfit for employment in an institution like a Bank were utmost trust respect credibility and honesty is required leaving no option with the Bank but to terminate his services ; and
(iii) that the Tribunal had erred in condoning the delay in filing the appeal by the respondent as no cogent plausible and satisfactory ground had been advanced by the respondent for the delay in filing the appeal and the Tribunal had aced in an arbitrary and fanciful manner in condoning the delay.
Mr. Suleman Habibullah, learned AOR appearing on behalf of respondent on the other hand supported the judgment of the Tribunal and submitted that the Tribunal had considered each and every aspect of the case in condoning the delay and minutely examined all the contentions of the counsel for the parties, as well as relevant provisions of the law applicable to the facts and circumstances of the case relating to the rights liabilities and obligations of the parties.
Relative to the first contention raised by Mr. Shahid Anwar Bajwa it is to be observed, that this contention was not available to the petitioner at the time when the appeal was argued before the Tribunal therefore, the Tribunal could not have considered and dilated upon the contention which has been raised for the first time today. The petitioner did not even raise this ground in their petition for leave to appeal filed by them in this Court. Even otherwise raising of this plea or ground before us would be of no help to the petitioner in view of the judgment of a larger Bench of this Court in Civil Petitions Nos. 204 to 240, 247, 248-K/2004 and 199-K/05 (Manzoor Ali and others vs. United Bank Ltd. and another) holding that mere fact of privatization of Nationalized Institution by way of transfer/sale of its controlling share by the Federal Government to a private party would not be sufficient to oust the jurisdiction of the Service Tribunal to proceed with the case of an employee of such institution as at the time of filing of the appeal before the Tribunal he was civil servant as provided by Section 2-A of the Act and a subsequent development would not deprive or strip such civil servant of his status as civil servant would have no adverse effect on the pending appeal. This contention is therefore decided against the petitioner.
Taking into consideration the second contention advanced by Mr. Shahid Bajwa it may be observed that it is a settled principle of law that mere allegation of commission of an offence against a person and registration of FIR in respect of a certain offence or more than one offence against such person would not ipso facto make him guilty of commission of such offence and he would continue to enjoy the presumption of innocence until convicted by a Court of competent jurisdiction after a proper trial with opportunity to defend himself on the allegations levelled against him. In the present case the petitioner had acted with utmost hurry and hot haste for which no plausible explanation was provided by them either before the Tribunal or by Mr. Shahid Bajwa while arguing this petition in this Court What was stated in support of removal/termination was that the post occupied by the respondent was of Senior Executive Vice President, which could not be kept vacant for a long period and that on account of the criminal act/offence committed by him he had lost faith confidence and trust of the competent authority for holding such a senior appointment. Both the grounds advanced by Mr. Shahid Bajwa do not appear to carry weight. As regards the contention that the post could not be kept vacant for long period. It may to be observed that it could have been filled in by posting another officer or additional charge of the post could have been given to another officer till such time the respondent's case had been decided by a competent Court. However, in case of conviction he would have lost his job. The petitioner could have instituted departmental proceedings against the respondent for his alleged criminal acts under their service rules known as Habib Bank Limited (Staff) Service Rules, 1981 (hereafter referred to the "Rules"). Removal of the respondent under clause 15 of the Rules on the ground that respondent had lost faith, confidence and trust of the competent authority was an illegal order which in the garb of termination simplicter was in effect by way of punishment for the alleged criminal acts of respondent which were sub-judice before a competent Court and which subsequent were found to be baseless and false. Before the quashment of the FIR and pendency of the criminal case the petitioner could have initiated departmental proceedings as the criminal case and the departmental proceedings are entirely different not being co-extensive nor inter-connected. Even after acquittal of respondent in criminal trial, departmental proceedings could have been instituted as the departmental proceedings are concerned with the service discipline, good conduct, integrity and efficiency of the employees. For the above reliance is placed on the case of Syed Muhammad Iqbal Jafri vs. Registrar, Lahore High Court, (2004 PLC (C.S.) 809).
Admittedly at the time when action of termination was taken against the respondent the petitioner bank was being managed, run and controlled by the Federal Government and though at that time the exact status of the employees of the Nationalized Banks could not be determined but the fact is that the law of Master and Servant had ceased to be applicable as the petitioner bank was no longer a privately managed bank and further that the employees of the petitioner bank had been given certain guarantees and sanction under the Banks (Nationalization) Act, 1974. It is also an admitted fact that Service Rules for the petitioner employees had been framed and were in existence. The competent authority of the respondent bank thus had no power to terminate the services of the respondent without issuing show-cause notice to the respondent, calling upon his explanation and holding an inquiry, if so required, into the allegations. The competent authority thus acted not only in contravention of the provisions of law relating to the removal dismissal and termination of the employees of a nationalized bank but also violated the provisions of natural justice according to which no one can be condemned without providing him an opportunity of defending himself. Such order could not be said to be a legal valid and proper order. The fact that the Service Rules in existence in the Petitioner's Bank did not have statutory backing would not give unlimited unfettered and absolute power to the Petitioner to ignore the same and to deprive the respondent of his right of access to natural justice. If any authority is required in support of the above proportion the same are available from the judgments in the cases of (i) Arshad Jamal vs. N.W.F.P. Forest Development Corporation and others (2004 PLC (C.S.) 802), (ii) The Managing Director, Sui Southern Gas Co. Ltd. Versus Saleem Mustafa Shaikh and others (PLD 2001 SC 176) (iii) Managing Director, Sui Southern Gas Company Limited, Karachi vs. Ghulam Abbas and others (2003 PLC (CS) 796); (iv) Nazakat Ali vs. WAPDA through Manager and others (2004 SCMR 145) and (v) Anisa Rehman vs. P.I.A.C. (1994 SCMR 2232).
With regard to the contention that the Tribunal had erred in condoning the delay on the ground that no plausible satisfactory and sufficient ground was advanced by respondent for condonation of delay in failing the appeal. It may be stated that delay was condoned by the Tribunal after a minute and detailed examination of the facts and circumstances of the case the grounds advanced by the respondent for the delay and the pronouncements made by this Court in a large number of cases laying down the principles for condonation or otherwise of the delay in filing appeals and applications etc. The Tribunal while condoning the delay did not commit any illegality or material irregularity or acted arbitrarily or against the settled principles governing condonation of delay which would compel this Court to interfere with the exercise of discretion. In a large number of the cases this Court has pronounced that when discretion of condoning the delay in filing an appeal has been legally judiciously and properly exercised then same is not required to be interfered with. Reference may be made to the case of Managing Director, Sui Southern Gas Company Limited, Karachi vs. Ghulam Abbas and others (2003 PLC (CS) 796) wherein this Court while discussing the ambit of the discretionary power of the Tribunal relative to condonation of delay observed as under:
"Besides above reference, decision of the cases, on merits have always been encouraged instead of non-suiting this litigants for technical reasons including on limitation. In this behalf good number of precedents can be cited where question of limitation was considered sympathetically after taking into consideration the relevant facts. Reliance is placed on the cases of Muhammad Yaqub v. Pakistan Petroleum Limited and another (2000 SCMR 830), Messrs Pakistan State Oil Company Limited v. Muhammad Tahir Khan and others (PLD 2001 SC 980), Teekam Das M. Haseja Executive Engineer, WAPDA vs. Chairman, WAPDA (2002 SCMR 142). There are application from the appellant but no interference was made by this Court on the premises that Service Tribunal had passed order in exercise of its discretionary powers. In this behalf reference may be made to the case of WAPDA v. Muhammad Khalid (1991 SCMR 1765). Relevant para therefrom reads as under thus:
"......As regards the question that no application for condonation of delay had been filed by the respondent, the matter being one of the discretion the finding of the Tribunal cannot be set aside on a technicality alone...."
In the case of Nazakat Ali vs. WAPDA through Manager and others (2004 SCMR 145) this Court made the following observations:--
"....It hardly needs any elucidation that sufficiency of cause of condonation of delay being question of fact is within the exclusive jurisdiction of learned Federal Service Tribunal and once the discretion concerning condonation of delay was exercised judiciously by the Service Tribunal it cannot be disturbed by this Court without any justification which is lacking in this case. In this regard we are fortified by the dictum laid down in Syed Ali Hasan Rizvi v. Islamic Republic of Pakistan (1986 SCMR 1086), Muhammad Azhar Khan v. Service Tribunal Islamabad (1975 SCMR 262), Water and Power Development Authority v. Abdur Rashid Dar (1990 SCMR 1513) and Sher Bahadur v. Government N.W.F.P. (1990 SCMR 1519).
The conclusion arrived at by the learned Federal Service Tribunal being strictly in conconance of law and being well-based does not warrant any interference. The petition being meritless is dismissed and leave refused.
Perusal of the relevant portion of the judgment of the Tribunal dealing with this issue leaves no doubt that it had decided this issue after a thorough and very minute examination of the facts circumstances and the relevant case. This the exercise of discretion does not require to be interfered with.
(Aziz Ahmad Tarar) Petition dismissed.
PLJ 2006 SC 929 [Original Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ. Main Shakirullah Jan & Syed Jamshed Ali, JJ.
SUO MOTU CASE
(CUTTING DOWN OF TREES IN JEHANGIR PARK, SADDAR, KARACHI)
Suo Motu Case No. 3 of 2006, decided on 5.4.2006.
Suo Motu Notice--
----Construction of Multi-Storied Car Parking Plaza--Explanation by representative of City District Government--Jurisdiction of District Government--In view of the order of Supreme Court and objections raised by non-governmental organizations, the City District Government decided to drop the project for construction of car parking plaza--Representative stated that the park was being utilized specified year as a public place, therefore, City District Government had no lawful authority to convert same for commercial purpose--Held: Although project has been abandoned for the reasons mentioned in statement but City District Government is restrained to convert same in future to any other use save in accordance with law--City District Government was directed to restore the status of public park and develop accordingly. [Pp. 930 & 931] A & B
Mr. Naeem-ur-Rehman, ASC for Applicant.
Mrs. Naheeda Mehboob Elahi, Dy. A.G. Mr. Manzoor Ahmed, EDO (Law), City Government, Karachi on Court's Notice.
Date of hearing : 5.4.2006.
Order
In pursuance of notice dated 27.3.2006, Manzoor Ahmed, EDO (Law) City Government, Karachi appeared and filed following statement on behalf of City District Government, Karachi.
"The City District Government has already written Letter to the Chief Secretary, Government of Sindh. Copy of the same produced herewith annexure "A". However, CDGK has dropped the project for construction of Parking facility on a portion of Jehangir Park due to serious reservations from the NGOs."
"Subject: Construction of Multi-Storied Car Parking Plazas on various Potential Sites of Karachi City.
The City District Government had planned for development of multi-storied car parking plazas at various potential locations in the city, in view of the serious traffic congestions being observed in the CBD Area and other arterials experiencing commercial activities resulting from the on-street parking. Under the first phase of the overall strategy the CDGK had planned for development of parking plazas at following five (05) locations:--
Lines Area near Saddar Dawakhana
Clifton near Schon Underpass
Faizi Rehman Gallery near Arts Council
Muhammad Community (Old Burial Ground) near Boulton Market Tonga Stand.
Portion of Jehangir Park (Machenzie Pavilion Ground) Saddar.
Since the parking problems is very severe in Saddar Area the City Government has already planned for development of parking facility in Lines Area Re-development project. Since this facility is not sufficient to cater for complete demand of parking, it was, therefore, planned to utilize a portion of Jehangir Park for development of multi-storied parking facility.
In view of the serious reservations from NGOs and the orders passed by the Hon'ble Supreme Court of Pakistan on Suo Motu Case No. 3 of 2006, the City District Government Karachi has dropped the project for construction of parking facility on a portion of Jehangir Park."
The representative of the City District Government explained that a portion of the Jehangir Park was ear-marked for the purpose of construction of multi-storied car parking plaza. However, in view of the order of this Court and the objections raised by other non-governmental organizations, the City District Government had decided to drop the project for construction of car parking plaza. Mr. Naeem-ur-Rehman appeared and stated that the park is being utilized since 1893 as a public place, therefore, the City District Government had no lawful authority to convert the same for commercial purposes. Reliance was placed by him on a judgment of this Court in (C.P. No. 36 of 2005). "Moulvi Iqbal Haider vs. Capital Development Authority etc." He further stated that the directions be issued to the City District Government for restoring the status of the park to its original position and it should be developed because the same is meant for the public welfare as the general public uses the same from time to time.
After having gone through the judgment relied upon by him and on perusing the statement filed on behalf of the City District Government, we direct that although the project has been abandoned for the reasons mentioned in the statement but City District Government is restrained to convert the same in future to any other use save in accordance with the law. However, in terms of the judgment which has been relied the City District Government is directed to restore the status of the public park and develop the same accordingly.
Petition stands disposed of.
(Rafaqat Ali Sohal) Petition disposed of.
PLJ 2006 SC 931 [Appellate Jurisdiction]
Present: Rana Bhagwandas; Saiyed Saeed Ashhad and Nasir-ul-Mulk, JJ.
SHER ZAMAN--Appellant
versus
STATE and others--Respondents
Crl. A. No. 167/2002 and J.P. No. 14-Q/2002, decided on 31.5.2005.
(On appeal from the judgment dated 31.12.2001 of the High Court of Balochistan Quetta passed in Crl. A. No. 310/2000 and Crl. J. A. No. 130/2000).
(i) Criminal Procedure Code, 1898 (V of 1898)--
----S. 103--Recovery of dead body and several incriminating articles on pointation of accused as witnessed by
Magistrate who had also attested/verified mushirnama' of seizure of such incriminating articles--Presence of Magistrate and attestation by him ofmushirnama' lent credibility and sanctity to recoveries as well as to "mashirnamas" of recoveries--Non-association of public instant of S. 103 Cr.P.C. would in present case not be a circumstance adverse to prosecution. [Pp. 940
& 941] D
(ii) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 40--Validity of confession--Magistrate concerned had satisfied himself that the accused was making confession voluntarily and he made efforts to find out whether confession in question, was truthful and contained true account of facts--Accused lady while being examined by Magistrate had made statement to the same effect as her disclosure in F.I.R.--No further efforts were thus, required to be made for ascertaining or verifying truth of confession--Confession in question was thus, valid and truthful--Information or disclosure of accused in custody of police officer would be admissible as evidence if in consequence thereof something relating to commission of crime was recovered--Even a statement by way of confession which distinctly relates to any fact discovered would be admissible as evidence against accused. [Pp. 939 & 940] B & C
(iii) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 40--Judicial confession of accused lady assailed on the ground that judicial officer on account of his association with investigation of case, confession recorded by him would have no legal sanctity--Presence of a Magistrate or an officer of equal rank would be necessary whenever body of any dead person is to be exhumed--Apart from witnessing process of exhumation of dead body, seizure of crime weapon and other in-criminating articles and signing mushirnamas of such seizure by Magistrate concerned had not been associated and did not participate in any further proceeding during course of investigation--Such circumstances would not impair or damage his impartiality and independence so as to render judicial confession of accused lady as illegal and invalid confession. [Pp. 938 & 939] A
(iv) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 43--Judicial confession--Proof of--Effect--Proved confession of accused in a case where other accused were facing joint trial for the same offence can be used as evidence/proof against person making the same while as against other accused person, such statement can be taken as circumstantial evidence. [P. 941] E
(v) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Qanun-e-Shahadat Order (10 of 1984), Art. 43--Offence punishable with capital punishment--Retracted judicial confession--Conviction of accused for such offence can be based on retracted judicial confession if the same was found to have been made voluntarily, containing true and satisfactory account of incident and fully implicating or incriminating maker thereof, duly substantiated and corroborated by circumstantial evidence in shape of recovery of dead body, crime weapon etc. on pointation of accused--Confession of accused lady can be relied upon for convicting her for offence charged with in as much as, the same stands corroborated by very strong circumstantial evidence--Prosecution has thus succeeded in proving charge of murder against petitioner lady beyond any shadow of doubt, however, charge against co-accused/appellant was not proved--Conviction of accused lady was maintained while that co-accused was set aside. [Pp. 941 & 942] F
1991 SCMR 643; PLD 1994 SC 314; 1999 SCMR 2003; AIR 1972 SC 3; 1991 SCMR 1643; 2003 SCMR 1419; PLD 1995 SC 336, ref.
Sardar M. Ishaq Khan, Sr. ASC for Appellant (in Crl. A. No. 167/2002).
Raja Abdul Ghafoor, ASC/AOR for State (in Crl. A. No. 167/2002).
Mr. M. Zaman Bhatti, ASC for Petitioner (in J.P. No. 14-Q/2002).
Raja Abdul Ghafoor, ASC/AOR for State (in J.P. No. 14-Q/2002).
Date of hearing : 31.5.2005.
Judgment
Saiyed Saeed Ashhad, J.--This judgment will dispose of Criminal Appeal No. 167 and Jail Petition No. 14-Q of 2002 involving common questions of law and facts which have been filed on behalf of accused Sher Zaman and Mst. Zarlashta who were convicted by the learned Sessions Judge, Musakhail at Loralai for an offence under Section 302 (b)/34 PPC and sentenced to undergo imprisonment for life. In addition, accused-appellant Sher Zaman was also sentenced to pay a fine of Rs. 1,00,000/- which when deposited was to be paid to the children of deceased Babul Khan as compensation under Section 544-A Cr.P.C. or in default of payment to undergo further RI for 5 years. The learned Sessions Judge also extended the benefit of Section 382-B Cr.P.C. to both the accused. Being aggrieved and dissatisfied with the judgment of the learned Sessions Judge, both accused Sher Zaman and Mst. Zarlashta filed criminal appeals against their conviction before the Balochistan High Court which vide judgment dated 31.12.2001 while dismissing the appeals reduced the sentence of imprisonment of appellant Sher Zaman in default of payment of fine of Rs. 1,00,000/- from 5 years RI to 6 months RI.
(i) As to whether confessional statement made by Mst. Zarlashta, co-accused can be used against the petitioner in terms of Article 43 of the Qanun-e-Shahadat Order as well as the judgments in the cases of Muhammad Noor and another v. Member-I, Board of Revenue, Balochistan and others (1991 SCMR 643), Arif Nawaz Khan and 3 others v. The State (PLD 1994 SC 314) and Faqirullah v. Khalil-uz-Zaman and others (1999 SCMR 2203)?
(ii) As to whether confessional statement recorded by Abdul Hameed Magistrate, who remained associated with the investigation during the course of effecting recoveries of incriminating articles from the house of Mst. Zarlashta, can be treated a confessional statement recorded by him lawfully in terms of Section 164 read with Section 364 Cr.P.C. if so, to what effect"?
The brief facts of the prosecution case as stated in the FIR lodged by
PW1 Lal Khan ASI are that on 14.5.2000, petitioner Mst. Zarlashta came to
Police Station Musakhail at about 12.00 noon and made a disclosure to above said Lal Khan, ASI to the effect that she alongwith appellant Sher Zaman had committed the murder of her husband-deceased Babul Khan by means of knife and thereafter they buried the dead body in a room of the house. It is the case of the prosecution that motive for the murder of Babul Khan deceased was that Mst.
Zarlashta had developed illicit relations with appellant Sher Zaman and on one night, when appellant Sher Zaman was in the house of deceased Babul Khan having illicit liaison with petitioner Mst. Zarlashta, deceased Babul Khan woke up on which appellant Sher Zaman ran away. Deceased Babul Khan inquired from petitioner Mst. Zarlashta the identity of the person but inspite of physical beating, she did not divulge the name of appellant Sher Zaman. This fact was disclosed by petitioner Mst. Zarlashta to appellant Sher Zaman on which he went the house of deceased Babul Khan at about 4.00 p.m. in the evening of the day of incident and handed over some pills to petitioner Mst. Zarlashta for putting the same in the tea to be taken by the deceased who mixed the same in the tea which was taken by deceased Babul Khan at about 7.00 p.m. whereafter he went in a deep sleep. At about 11.00 p.m., appellant Sher Zaman again went to the house of deceased Babul Khan and both he and petitioner Mst. Zarlashta committed the murder of deceased Babul Khan by means of knife whereafter they buried the dead body in a room of the house.
After recording her statement, SHO Hamidullah alongwith Assistant Commissioner
Musakhail (PW5 Abdul Hamid) and Dr. Hafiz Muhammad Rafiq Jaffar (PW3) went to the house of petitioner Mst. Zarlashta on her pointation after digging the earth, recovered dead body of the late Babul Khan which was wrapped in a
chaddar's and achattai'. The dead body was taken into possession vide Memo
(Ex.P/B). SHO also took into possession blood stained chaddar' andchattai' vide memo (Ex. P/C) besides blood stained shirt of deceased vide memo (Ex. P/D).
He also secured blood stained earth vide Memo (Ex. P/E) and on search of the dead body took into possession one ring from one of the fingers of deceased vide Memo (Ex.P/F). In the meantime, petitioner Mst. Zarlashta produced blood stained `Darri' and quilt which were taken into possession vide Memos Ex. P/G
& H. Petitioner Mst. Zarlashta also produced crime weapon i.e. dagger which was taken into possession vide memo Ex. P/J. Besides a spade and lantern which were taken into possession vide memos (Ex. P/K & I). Thereafter, the SHO prepared the site-plan (Ex. P/M). All the recovery memos were attested by Abdul
Hamid Assistant Commissioner and witnessed by Constable Muhammad Hassan and
Atta Muhammad. The dead body of the deceased was examined by PW3 Dr. Hafiz
Muhammad Rafiq Jaffar who after examination issued certificate (Ex. P/N). The blood stained articles were sent to the Chemical Analyzer for analysis.
On the next day i.e. 15.5.2000, petitioner Mst. Zarlashta was produced before the Assistant Commissioner (PW5 Abdul Hamid) who recorded her confessional statement (Ex. P/O) and also appended his certificate thereto. Thereafter, I.O./SHO Hamidullah arrested appellant Sher Zaman and after obtaining Chemical Analyst Report submitted challan (Ex. P/RP) before the learned Sessions Judge, Musakhail who framed charge against both the accused under Section 302/34 PPC to which they pleaded not guilty and claimed to be tried whereafter the prosecution was directed to adduce evidence in support of its case.
Prosecution examined PW-1 Lal Khan ASI who reiterated the contents of the FIR which have already been reproduced in the paragraph containing the facts of the case. PW 2 Dunia Gul stated that he was informed by one of his relative Rehmat Khan that deceased Babul Khan was missing on which he went to Zhob to search for him and inquired about the deceased from his relative at Zhob who told him that deceased Babul Khan had not come. He further stated that he inquired from petitioner Mst. Zarlashta about the whereabouts of deceased Babul Khan who told him that deceased had gone to Zhob. On 14.5.2000, he was informed that dead body of the deceased Babul Khan had been found whereafter he was called by the police and he identified the dead body.
PW-3 is Dr. Hafiz Muhammad Rafiq Jaffar who performed post-mortem examination on the dead body of the deceased Babul Khan and opined that the throat of the deceased was cut with a sharp edged weapon as a result of which all the blood vessels of neck were cut. He further opined that probable cause of death was due to cut of throat and profused blood loss.
PW 4 Muhammad Hussain, Head Constable is the witness of disclosure memo (Ex. P/T) prepared by SHO when petitioner Mst. Zarlashta went to Police Station Musakhail on 14.5.2000 as well as of memos of recoveries of dead body, crime weapon, blood stained earth, Chadar, chattai, spade, lantern, darri and quilt. In his evidence in the Court he stated that on 14.5.2000 he alongwith PW-1 Lal Khan was present in Police Station Musakhail when petitioner Zarlashta came there and made disclosure of committing murder of her husband deceased Babul Khan alongwith appellant Sher Zaman and recovery of dead body in the room of her house. He further stated that he alongwith PW-6, SHO, PW-1, ASI Lal Khan, PW-3 Dr. Hafiz Muhammad and PW-5 Abdul Hamid Assistant Commissioner went to the house of petitioner Mst. Zarlashta from where the dead body of the deceased Babul khan was recovered after digging the floor and the aforesaid crime weapon/incriminating articles were produced by her. He testified to the memos/mushir namas of recoveries and seizure of the aforesaid articles Ex. P/B to Ex. P/H & P/J to L and admitted his signatures thereon as well as of co-mushir Ata Muhammad, constable. He further deposed that all the articles were sealed into parcel.
PW-5 Abdul Hamid Assistant Commissioner had accompanied SHO, Dr. Hafiz Muhammad Rafiq Jaffar and ASI Lal Khan to the house of petitioner Mst. Zarlashta and from one of the rooms of the house, the dead body of the deceased Babul Khan was recovered by digging the floor of the room on the pointation of petitioner Mst. Zarlashta. He also stated regarding production of crime weapon and other incriminating articles and seizure thereof and preparation of mushir namas Ex. P/B to H and P/J to L. He further stated that on 15.5.2000 ASI Lal Khan produced petitioner Mst. Zarlashta before him for recording her confession u/S. 164 Cr.P.C. where upon he after satisfying himself that petitioner Mst. Zarlashta was willing to make a confession voluntarily and without any inducement or coercion recorded her statement. He stated that after recording the statement he obtained the thumb impression of petitioner Mst. Zarlashta, signed the statement himself and certified the same. He produced the same as Ex. P/Q testifying to its veracity and admitted his signature thereon as well as thumb impression of the petitioner Mst. Zarlashta.
PW-6 Hameedulla SI had carried out the investigation in the case and after completion thereof submitted Challan against both petitioners Mst. Zarlashta and appellant Sher Zaman which was forwarded to the Court of learned Sessions Judge Musakhail for trial against the above two accused. Both the accused in their statements u/S. 342 Cr.P.C. completely denied all the prosecution allegations appearing against them in the evidence as well as their involvement in the above crime.
Petitioner Mst. Zarlashta in her statement u/S. 342 Cr.P.C. stated that she would not give evidence on oath but subsequently she made a statement on oath on 25.9.2000 wherein she gave an absolutely different version of the incident than what she had disclosed before PW-1 Lal Khan ASI at Police Station Musakhel and in her confession recorded by PW-5 Abdul Hamid. In her statement on oath she tried to absolve herself of the murder by stating that it was appellant Sher Zaman who had committed the murder in the room of her house after sending her to another room from where she heard the noise of her husband. She was cross-examined by the learned counsel for the appellant Sher Zaman as well as by the District Attorney and in her cross-examination to the District Attorney, she admitted that on her pointation police had got recovered dead body of deceased.
We have heard the arguments of Mr. Muhammad Zaman Bhatti, ASC, Sardar Muhammad Ishaq Khan, Sr. ASC on behalf of petitioner Mst. Zarlashta and accused Sher Zaman, respectively and Raja Abdul Ghafoor, ASC/AOR on behalf of the State.
Mr. Muhammad Zaman Bhatti, ASC assailed the judgment of the Balochistan High Court on several grounds, as under:--
That the learned Division Bench of the High Court had erred in accepting the confessional statement of petitioner Mst. Zarlashta as proper and valid inspite of the fact that it suffered from following illegalities and infirmities:--
(i) that PW-5 while recording the confession of petitioner Mst. Zarlashta did not observe and fulfill all the legal formalities and requirements necessary to be complied with before and after recording the confessional statement;
(ii) that PW-5 Abdul Hamid Assistant Commissioner remained deeply associated with the investigation of the accused therefore he could not be said to be an independent and impartial person. Consequently confessional statement recorded by a partisan magistrate would have no sanctity in the eye of law; and
(iii) that PW-5 did not satisfy himself whether accused/petitioner Mst. Zarlashta had made the statement voluntarily without any inducement or coercion from any quarter and that the account given by her was true;
that the learned Division Bench of Balochistan High Court committed grave illegality in relying on the evidence of PW-1 Lal Khan in Court which was made on the basis of the information/disclosure made by petitioner Mst. Zarlashta and treating the same as evidence in violation of well settled principle of criminal administration of justice that statement made to a police officer is inadmissible and cannot be treated as evidence for deciding the guilt of an accused; and
that Balochistan High Court also fell in error in accepting the evidence of PW-1 Lal Khan ASI and PW-4 Muhammad Hussain Head Constable relative to recoveries of the dead body, crime weapon and other incriminating articles allegedly on the pointation of petitioner Mst. Zarlashta without insisting for a strict compliance of Section 103 Cr.P.C. in the face of the evidence that several persons from the adjoining houses had come to the house of deceased Babul Khan and witnessed the scene of incident.
Sardar Muhammad Ishaq Khan appearing on behalf of accused/appellant Sher Zaman adopted the arguments of Mr. M. Zaman Bhatti, ASC and additionally submitted that both the trial Court and Balochistan High Court committed grave illegality in convicting appellant Sher Zaman on the basis of confession of co-accused Mst. Zarlashta in as much as it was not only against the provisions of the Qanun-e-Shahadat Order and the Criminal Procedure Code but also against pronouncements made by this Court in a large number of cases to the effect that confessional statement of an accused cannot be used a substantive evidence against co-accused for convicting him and in the absence of any substantive or direct evidence, whatsoever, against appellant Sher Zaman, the confessional statement of petitioner Mst. Zarlashta would not be of any assistance to establish the guilt of appellant Sher Zaman. He further submitted that the disclosure made by petitioner Mst. Zarlashta before PW.1 ASI Lal Khan in pursuance whereof dead body of deceased Babul Khan as well as crime weapon and other incriminating articles were recovered could neither be used against appellant Sher Zaman nor would advance the prosecution case against him.
Learned counsel for the State supported the judgment of Balochistan High Court and submitted that there was no illegality or infirmity in the judgment and both the accused had rightly been convicted on the basis of evidence and material on record.
The arguments of the learned counsel for the parties have been considered, prosecution evidence has been minutely appraised, and the relevant provisions of law as well as the judgments of the trial Court and Balochistan High Court have also been examined.
Primary evidence available to the prosecution in this case is the judicial confession of petitioner Mst. Zarlashta recorded by PW-5 Abdul Hamid Assistant Commissioner. It was contended that judicial confession of petitioner was not valid and proper as it was not recorded in consonance with legal requirements necessary for recording judicial confessions. From perusal of the evidence of PW-5 Abdul Hamid, it transpires that PW-5 categorically stated that all the legal requirements and formalities necessary to be observed for recording of judicial confession were complied with by him. There is thus no reason for disbelieving the above circumstance. In view of the above, this contention is devoid of force.
The next contention advanced by the learned counsel relative to the validity of judicial confession was that PW-5 Abdul Hamid was not an impartial or independent officer on account of his association with the investigation of the case, he had indeed become a part of the prosecution agency and confession made to the police or an officer associate with police would have no legal sanctity. From the evidence of PW-1 Lal Khan and PW-5 Abdul Hamid, only part which can be assigned to PW-5 Abdul Hamid is of supervising the recovery of dead body as well as of the dead body of deceased Babul Khan and other incriminating articles on pointation of petitioner Mst. Zarlashta from the house of deceased Babul Khan. He had also attested mushir namas of recoveries and seizure of above articles which were prepared by PW-1 Lal Khan in presence of PW-4 Muhammad Hussain and Atta Muhammad constables. Presence of a Magistrate or an officer of equal rank is always necessary whenever a body of a dead person is to be exhumed. Apart from witnessing the process of exhumation of dead body, seizure of crime weapon and other incriminating articles and signing the mushir namas of such seizure, he had not been associated and did not participate in any further proceedings during the course of investigation. The above circumstances would not impair or damage his impartiality and independence so as to render judicial confession of petitioner Mst. Zarlashta as invalid and illegal confession. This contention also lacks force and does not require consideration.
The next contention with regard to the validity of the judicial confession was that PW-5 Abdul Hamid had not taken upon himself the duty of satisfying that petitioner Mst. Zarlashta was making the confession voluntarily and that it contained true facts/accounts of the incident. From perusal of the confession of the petitioner Ex. P/Q, it transpires that before recording the confession, PW-5 he had put several questions, which appear on the opening page of the confession of petitioner Mst. Zarlashta. From the answers given by petitioner Mst. Zarlashta to the above questions, it can reasonably be inferred that petitioner Mst. Zarlashta made her confession voluntarily. Relative to the question whether PW-5 had made efforts to find out whether confession was truthful and contained a true account of the facts, it may be observed that while recording confessional statement of petitioner Mst. Zarlashta, the facts of the prosecution case were within his knowledge as per FIR recorded on the disclosure petitioner Mst. Zarlashta in pursuance whereof recovery of dead body and many incriminating articles including the crime weapon was affected on her pointation. Petitioner Mst. Zarlashta while being examined by PW-5 had made statement to the same effect as her disclosure in the FIR. No further efforts were required to be made for ascertaining or verifying the truth of the confession. This contention too has no force.
The next ground agitated by the learned counsel for the accused was that reliance on the evidence of PW1 Lal Khan was wrongly placed for deciding the fate of the case. It was submitted that PW1 Lal Khan had lodged the FIR on the basis of disclosure made by petitioner Mst. Zarlashta regarding the commission of an offence and that confession of an accused made to a police office regarding commission of crime is inadmissible in evidence. This contention is devoid of force. Article 40 of the Qanun-e-Shahadat Order lays down the principle whereby information received from an accused relative to the commission of an offence may be proved. It will be proper for a clear understanding to reproduce Article 40 as under:--
"40. How much of information received from accused may be proved.
When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved".
From a bare perusal of Article 40, it transpires that any information conveyed or disclosed by an accused to a police officer which actually leads to the discovery of some fact which fact was unknown to the police officer before such disclosure was made or information was conveyed, for the first time was derived from the accused; and further that the discovery of the fact related to the commission of the offence, then such information whether it amounts to confession or not may be proved. The information or disclosure of the accused in custody of a police officer would be admissible as evidence if in consequence thereof something relating to the commission of the crime is recovered. Even a statement by way of confession which distinctly relates to the fact discovered is admissible as evidence against the accused as held by the Supreme Court of India in the case of The Delhi Administration vs. Balakrishan (AIR 1972 SC 3). For relying on any fact from the disclosure or information by the accused as evidence for connecting him with the crime, it is also necessary that the accused should be in police custody and that the facts disclosed or found on the basis of such disclosure or information were not known to the police. For the purpose of Article 40, the word "custody" does not necessarily mean detention or confinement and if the accused comes in contact with the police officer or approaches the police station, he will be deemed to be in custody as his freedom/movement would be restricted. This contention is, therefore, without any substance.
The next contention advanced by the learned counsel for the accused was that the various recoveries alleged to have been made on pointation of petitioner Mst. Zarlashta were not beyond suspicion and doubt as the same were not made in compliance with the provisions of Section 103 Cr.P.C. inspite of fact that several persons from the adjoining houses had gathered at the place of incident, but none of them was asked to witness the recoveries and to act as mashir of recovery. It was further submitted that the provisions of Section 103 Cr.P.C., were mandatory and their violation without any plausible and tangible explanation would render the recoveries illegal and of no value. No doubt that provisions of Section 103 Cr.P.C. are mandatory and persons from the locality are required to be associated for witnessing the search but departure from this mandatory provision would not per se vitiate the recovery and invalidate the conviction where such non-association was not malafide or there was no malice on the part of the police ruling out the possibility of false implication. Furthermore, the object of associating independent persons of the locality to witness the recovery is to lend sanctity and credibility to such recovery. In the present case, the recovery of dead body and several incriminating articles on pointation of accused Mst. Zarlashta were witnessed by PW5 Assistant Commissioner Abdul Hamid who had also attested/verified the mushir nama of seizure of such incriminating articles. Presence of PW5 and attestation by him of the mushirnamas lent credibility and sanctity to the recoveries as well as to the mashirnamas of recoveries. Thus non-association of public would in the instant case not be a circumstance adverse to the prosecution.
According to the contention of Mr. Sardar Muhammad Ishaq Khan, Sr. ASC on behalf of accused Sher Zaman that a proved judicial confession in a case where more than one accused are facing trial can legally be used as substantive evidence only against the maker thereof, reference may be made to Article 43 of the Qanun-e-Shahadat Order as under:--
"43. Consideration of proved confession affecting person making it and others jointly under trial for same offence. When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons is proved.
(a) such confession shall be proof against the persons; making it; and
(b) the Court may take into consideration such confession as circumstantial evidence against such other person".
From a bare perusal of the above Article 43, it is absolutely clear that a proved confession of an accused in a case where other accused are facing joint trial for the same offence can be used as evidence/proof against person making it and as against other accused person, it may be taken into consideration as circumstantial evidence. Pronouncements to the above effect have been made by this Court in the cases of Muhammad Noor and another v. Member-1, Board of Revenue, Balochistan and others (1991 SCMR 643), Arif Nawaz Khan and 3 others v. The State (PLD 1994 SC 314) and Faqirullah v. Khalil-uz-Zaman and others (1999 SCMR 2203) in the case of Khalid Javed and others versus The State (2003 SCMR 1419), this Court reiterated its views/pronouncements in the afore cited judgments.
The next question which arises for determination is whether the judicial confession of the petitioner Zarlashta which was retracted by her subsequently could be relied upon as substantive evidence for establishing her guilt. In this regard it is to be observed that conviction of an accused for an offence punishable with capital punishment can be based on retracted judicial confession if it is found to have been made voluntarily and containing a true and satisfactory account of the incident and fully implicating or incriminating the maker thereof duly substantiated and corroborated by circumstantial evidence in the shape of recovery of dead body, crime weapon etc. on the pointation of the accused, as held by this Court in case reported as Bahadur Khan versus The State (PLD 1995 S.C. 336). The Judicial confession of petitioner Zarlashta has been found to be voluntary, free from coercion, undue influence and inducement. It has also been found to be true in view of the attending circumstances of the case in which the maker of the confession made a disclosure before the police officer at police station of having murdered deceased Babul Khan and relating to the recovery of dead body of deceased Babul Khan, crime weapon and other incriminating articles. In the circumstances retraction of confessional statement of petitioner Zarlashta is not of much importance and it can be relied for convicting her for the offence charged with because it stands corroborated by very strong circumstantial evidence referred to herein above.
For the foregoing facts, reasons and discussion it is held that the prosecution has succeeded in proving the charge of murder against petitioner Zarlashta beyond any shadow of doubt but failed to establish the charge against appellant Sher Zaman. Accordingly, conviction of accused Zarlashta by the trial Court and upheld by the Balochistan High Court was based on proper reading of the evidence and documents on record and does not suffer from any illegality or infirmity. The same does not require any interference. However both the trial Court and Balochistan High Court committed serious illegality in holding accused Sher Zaman guilty of murder of Babul Khan and convicting him for the same as there is no evidence against him warranting his conviction.
Vide short order of 31.5.2005 Jail Petition No. 14-Q of petitioner Zarlashta was dismissed refusing her leave to appeal while Cr. Appeal No. 167/2002 arising out of Cr. PLA 5-Q/2002 filed by Appellant Sher Zaman was allowed acquitting him and setting aside his conviction for reasons to be recorded. These are the reasons for the said short order.
(Aziz Ahmad Tarar) Order accordingly.
PLJ 2006 SC 942 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan and Raja Fayyaz Ahmed, JJ.
INAYATULLAH and another--Petitioners
versus
DIRECTOR GENERAL and others--Respondents
C.Ps. Nos. 1032 & 1033 of 2003, decided on 8.11.2005.
(On appeal from the judgment dated 5.3.2003 of the Federal Service Tribunal Islamabad passed in Appeals Nos. 642 & 643 (R)/C.S/2001)
(i) Constitution of Pakistan, (1973)--
----Arts. 212(3), 4 & 25--Violation of provision of equal protection of law, claimed--Upgradation of "General Cadre" of teachers--Teachers of Physical Education not included in such set up of up-gradation--Legality--Teacher of Physical Education and those of "General Cadre" have different duties to perform--Petitioners belonging to cadre of physical education having been selected to import physical education cannot claim as a matter of right to be amalgamated and merged into general cadre of school teachers who were directly inducted into service for providing education to students in view of their eligibility to impart education to students, thus, no discriminatory treatment has been meted out to petitioners by not merging them into general cadre of school teachers up-graded and re-designated to different pay scales--Impugned notification re-structuring cadre of school teachers does not offend provisions of Arts. 25 & 4 of the Constitution by not including in such re-organization teachers of physical education. [P. ] A & B
(ii) Service Tribunal Act, 1973 (LXX of 1973)--
----S. 4--Constitution of Pakistan (1973), Art. 212(3)--Jurisdiction of Service Tribunal--Extent of--No final order, whether original or appellate was passed by departmental authority in respect of terms and conditions of service of the petitioners--Impugned notification exclusively related to re-organization and re-designation of various posts of teachers of "general cadre" to which petitioners admittedly do not belong nor their terms and conditions of service has any nexus with notification in question--Service Tribunal have rightly observed in its judgment that it has no jurisdiction to entering petitioner's appeal--No substantial question of law of public importance having been raised, leave to appeal was refused. [P. ] C
2001 SCMR 955; 1991 SCMR 1041; 2005 PLC (C.S.) 1335 and 2004 PLC (C.S.) 1213 ref.
Mr. Fazal Ellahi Siddiqui, ASC & Mr. Ejaz Muhammad Khan, AOR for Petitioners (in both Civil Petitions).
Mr. Nasir Saeed, Sh. DAG for Respondents (in both Civil Petitions).
Dates of hearing : 7, 8.11.2005.
Judgment
Raja Fayyaz Ahmed, J.--Civil Petitions Nos. 1032 & 1033 of 2003 are directed against a common judgment dated 5.3.2003 of the learned Federal Service Tribunal, Islamabad passed in Appeals Nos. 642 & 643(R)/CS/2001 dated 5.3.2003, whereby the appeals filed by Petitioners Nos. 1 & 2 namely, Inayatullah, Director Physical Education (DPE) in BPS-17 (In CP No. 1032/2003) and Muhammad Javed Iqbal, Physical Training Instructor (PTI) in BPS-16 (In CP No. 1033/2003) have been dismissed.
We propose to dispose of the abovementioned Civil Petitions by this judgment, as common questions of facts and law are involved therein.
The brief facts of the case are that the Ministry of Education re-organized the General Cadre' of the teachers working in Federal Government
Educational Institutions at Islamabad and the Federal Area into a4-Tier
Structure' vide Notification dated 4.9.2000, reproduced herein below:--
"Government of Pakistan
Ministry of Education
Islamabad 4.9.2000
NOTIFICATION
No. F.3-12/96-SA (FDE) A. III. The competent authority has been pleased to approve re-organization of the existing cadre of Principal/Vice Principal/Headmaster/Headmistress/Deputy Headmaster/Deputy Headmistress/Senior Teacher and Trained Graduate Teachers (SG) working in Federal Government Schools/Higher Secondary Schools Islamabad and Federal Area as per revised 4-Tier Structure for Federal Government School Teachers in the ratio of 1:15:34:50 for BPS-20, BPS-19, BPS-18 and BPS-17 respectively.
Resultantly, the present sanctioned strength of 348 (Male) and 443 (Female) posts of the Schools/Higher Secondary School Teachers (General Cadre) as on 30.11.1999 are up-graded and re-designated to BPS-20, BPS-19, BPS-18, BPS-17 as detailed below:
Principal Principal H/Mster/H Dy Head
(BPS-20) (BPS-19) /Mistress/V. Master/Dy
1% of total 15% of P/TGT/(SG)/ Headmistres/
strength total S. Teacher TGT(SG). Total
Cadre strength (B-18) 34% of Senior
total strength Teacher (B-
17) 50% of
total strength
Male 04 52 118 174 348
Female 04 66 151 222 443
The above revised up-gradation/re-designation will be subject to the following:--
(i) The advance increments for acquiring/possession higher qualification will not be admissible for which higher scales are now sanctioned.
(ii) The Ph.D Allowance for acquiring/possession higher educational qualification will continue to be admissible.
(iii) The award of selection grade @ 33% will also cease to be admissible for which higher pay scales are now sanctioned.
(iv) It shall be governed by such recruitment rules as framed/shall be framed from time to time for filling up the posts by promotion/recruitment as per prescribed rules.
(v) The up-gradation shall take effect from the date up-graded posts are actually filled in the prescribed manner.
Sd/xxx
Muhammad Munir Arif
Education Officer
The Manager, Gazette of Pakistan
Printing Corporation of Pakistan Press
Karachi"
In the abovementioned 4-Teir notified
Scheme, the teachers of Physical Education are not included in the re-organization set-up involving up-gradation/re-designation of General cadre' of teachers. The petitioners claimed to have informally agitated against the stated discrimination meted out to them but their grievances were not redressed, so they filed written representation dated 27.6.2001 requesting for induction of Trained Graduate PTIs (B-16) and DPEs (B-17) in the 4-Tier structure meant for teachers of Federal Government Educational Institutions. It is the case of the petitioners that as their representation remained un-respondend, they filed separate service appeals before the learned Federal
Service Tribunal, Islamabad, hereinafter referred to asthe learned Tribunal', in which the following reliefs were claimed:--
"Service Appeal may kindly be accepted with costs and the cadre of physical Training Instructors (SG) may kindly be included in the Reorganization Scheme, by modifying the impugned Notification dated 4.9.2000, with all consequential back benefits."
"There does not seem to any reason to justify the refusal to grant up gradation to the appellants with effect from 1.6.1991 in that their cases are at par with all the existing Trained Graduate/Untrained Graduate Teachers i.e. BA/BSc, B.Ed working in B-15 in Federal Government Educational Institutions, Islamabad/Federal Area. Admittedly all the above teachers have been placed in B-16 with effect from up gradation of the post i.e. 1.6.1991, vide Notification No. F-90/91 (SA) FME. This being so, we see no reason why discriminatory treatment be meted out to the appellants qua the other teachers similarly placed."
Mr. Fazal Ellahi Siddiqui, the learned ASC for the petitioners, Mr. Nasir Saeed Sheikh, the learned DAG have been heard at length.
It has been inter alia, contended by Mr. Fazal Ellahi Siddiqui, the learned ASC for the petitioners that the impugned notification runs counter to the letter and spirit of the judgment of this Court reported in 2001 SCMR 955 (supra), as discriminatory treatment has been meted out to the PTIs and DPEs, as they have been, in violation of the above cited judgment of this Court and the Constitutional guarantees stand excluded from the 4-Tier structure formulate meant for the Federal Government School Teachers in the given ratio with the result that they despite enjoying equal status and having equal and even higher educational qualifications stand deprived in the line of promotion to further higher grades as compared to the Federal Government School Teachers governed vide impugned notification. According to the learned ASC, PTIs and the DPEs have been described as a separate cadre with the same terms and conditions of service so as to exclude them from the common seniority list of the Federal Government Schools Teachers although; a good number of PTIs in view of their higher qualification are imparting education to the students. The learned ASC maintained that for all intents and purposes the PTIs and the DPEs in view of their equal status and being at par with the other schools teachers, as well as; having acquired higher qualifications are entitled to earn promotions to the next higher grades at par with the other school teachers, i.e. senior English teachers, headmasters and so on and be included ratio wise in the 4-Tier structure re-organized by the Federal Government by impugned notification.
The learned DAG for the respondents controverting the contentions put forth on behalf of the petitioners contended that by no stretch, the impugned notification can be treated as discriminatory to Article-25 read with Article-4 of the Constitution of the Islamic Republic of Pakistan, as well as; none of the Constitutional guarantees in such behalf by issuing the notification in question have been offended or violated. According to the learned DAG, the notification exclusively relates to the school teachers of general cadre involved in the imparting education to the students including Headmasters and Deputy Headmasters, Principals and Vice Principals in BPS-17 to BPS-20, directly concerned with and to act for ensuring effective education to the students and other allied matters, as well as ; to objectively run such institutions, which thus by dint of the nature of their duties are quite distinctive to the one entrusted and being discharged by the PTIs and DPEs irrespective of their individual educational and higher qualifications, as it be. The marked distinction between the general cadre of teachers and the PTIs and DPEs relates to the nature of duties of each cadre hence the latter were not merged into general cadre of secondary school and higher secondary school teachers. The learned DAG pointed out that right from the very beginning PTIs and DPEs belong to a separate and distinctive cadre of service and get their further promotions up to the highest post and grade within the cadre which cannot be amalgamated with the school teachers etc. in the re-organization of the existing cadre of principal/vice principal/headmaster/headmistress/deputy headmaster/Deputy head-mistress/senior teachers and trained graduate teachers (SG) working in the Federal Government Schools/Higher Secondary Schools, Islamabad and Federal Area as per revised 4-Teir Structure, for the Federal Government School Teachers in the given ratio introduced vide notification in question which according to the learned DAG, embraces the entire lot of the specified class of teachers etc. permissible, as a reasonable classification, not violative of the Constitutional guarantees.
The contentions put forth by the learned ASC for the petitioners and the learned DAG for the official respondents have been considered in the light of the impugned judgment and the documents available on record, gone through and scrutinized carefully. The case law cited by the parties' learned counsel have also been considered and perused. It is an undisputed feature of the case that from the very inception of the cadres comprising of the general cadre of the school teachers of the Federal Government and the Physical Training Instructors (PTIs) and so on including Directors Physical Education (DPEs) belonged to two separate and distinctive cadres irrespective of their grades, pay scales and other terms and conditions of their service, therefore, it can hardly be assumed that PTIs and others belonging to the category and class primarily concerned with the physical education of the students for their physical health, fitness etc. of the schools of the Federal Government perform and discharge their functions, as school teachers, who are directly concerned with and imparting education to the students for which they have been inducted into service. It is also an undisputed fact that by dint of the nature of their duties the PTIs and other staff members belonging to this group and cadre do not perform their duties and discharge their functions, as entrusted and being done by the school teachers belonging to general cadre of school teachers. In the past, DPEs and PTIs were denied advance increments on acquisition of Bachelor degrees and higher educational qualifications as extended to other school teachers belonging to the general cadre, however; such relief was granted to them, as a result of the judgment of the learned Tribunal, but they were not up-graded to B-16, while the teachers of the general cadre were up-graded and their appeals regarding up-gradation failed before the learned Tribunal. Eventually up-gradation was allowed to the PTIs (Senior) from B-15 to B-16 w.e.f. 22.8.1997, during the pendency of their appeals before this Court, whereas; their claim was that they should be up-graded w.e.f. 1.6.1991 when other teachers were up-graded. Their appeals were allowed by this Court on 24.1.2001 and it was held that the appellants shall stand up-graded and placed in B-16 w.e.f. 1.6.1991 with all consequential benefits and it was observed that there does not seem to any reason to justify refusal to grant up-gradation to the petitioners w.e.f. 1.6.1991 being at par with all the existing Trained Graduate/Untrained Graduate Teachers i.e. BA/BSc, B.Ed. working in B-15 in Federal Government Educational Institutions Islamabad/Federal Area and admittedly all such teachers have been placed in B-16 with effect from the date of up-gradation of the posts i.e. 1.6.1991 and this being so we see no reason to discriminate the appellants qua the other teachers similarly placed vide judgment of this Court reported in 2001 SCMR 955 supra.
It has strenuously been contended before us by the learned ASC for the petitioners that since the DPEs and PTIs belong to the teachers cadre though not involved in imparting education in the Federal Government Educational Institutions, Islamabad/Federal Area enjoying the same pay scales of the grades, as well as; some of them in view of their higher educational qualifications have been at time entrusted with the duties to deliver lectures to students and taking classes, therefore, they could not be treated differently and discriminated as far as their merger into general cadre of school teachers is concerned. Undisputedly the PTIs are primarily concerned and entrusted with the duties concerning the physical education of the students of the above said institutions have been declared and notified as teachers of the institutions equal in grade as compared to other school teachers of general cadre including other terms and conditions of their service, enjoying the same pay and privileges despite some of them having acquired additional educational and higher qualifications, as contended before us, are not directly concerned nor entrusted with the duties to provide and impart education to the students of the above said educational institutions. Moreover; the PTIs and other staff members belonging this group were admittedly inducted in the services on the basis of their eligibility, as such; to provide physical education to the students for their physical fitness, alertness etc. and they never before agitated or claimed by dint of their educational qualifications to be legally entitled, treated and dealt with, as school teachers belonging to the general cadre involved in providing education to the students in the light of the prescribed syllabus relating to various science, mathematics and other subjects of studies nor merely on account of educational qualifications of the PTIs and other staff members acquired by them, if any, subsequent to their induction into service relating to physical education for which they were found to be fit for appointment; can claim as a matter of right to be amalgamated and merged into the general cadre of school teachers etc. directly inducted into the service for providing education to the students in view of their eligibility to impart education to the students, as per their courses of studies, therefore, it could not be said that discriminatory treatment has been meted out to the petitioners by not merging them in the general cadre of school teachers, re-structured vide impugned notification, which exclusively related to the teachers of the general cadre, up-graded and re-designated to BPS-20, BPS-19, BPS-18 and BPS-17 in the given ratio keeping in view the present sanctioned strength of the male and female posts of the schools/higher secondary school teachers as on 30.11.1999. The general cadre of the school teachers, as it stood on 30.11.1999, has been upgraded and re-designated vide impugned notification, which abundantly shows that never before the PTIs and other staff members of the same group belonged to the general cadre of the school teachers and had it been so, of course, the petitioners could have validly claimed to have been treated with discrimination but, as noted above, it was never the claim of the petitioners since their induction into service that they for whatever reasons belonged to the general cadre of school teachers and for the first time subsequent to the issuance of impugned notification dated 4.9.2000, providing revised 4-Tier Structure for the Federal Government School Teachers in the given ratio resulting into up-gradation and re-desingation of the school teachers of the general cadre, as it stood on 30.11.1999, the petitioners, have belatedly started claiming to have been illegally excluded, as a class vide impugned notification, but such exclusion claim is not well based for the simple reason that the petitioners never belonged to the general cadre of the school teachers to which they have been allegedly excluded and thereby deprived to further promotions in BPS-17 and to above grades. The fact remains that the general cadre of the school teachers, as it stood on 30.11.1999, has been re-structured by introducing revised 4-Tier Structure Scheme involved up-gradation and re-designation of the general cadre of the school teachers having no nexus or relevancy to the cadre to which the PTIs and other staff members including DPEs belonged; so their claim to have been discriminated appears to be devoid of any substance nor for the above mentioned reasons it could be legitimately claimed that the impugned notification runs counter to the letter and spirit of the judgment of this Court reported in 2001 SCMR 955 supra, which exclusively relates to the entire class and category of the school teachers of the physical education cadre of the Federal Government Educational Institutions of Islamabad/Federal Area being run by the Federal Government. The impugned notification in our considered view does not offend the provisions of Article-25 read with Article-4 of the Constitution of Islamic Republic of Pakistan, 1973 and is not discriminatory. In the significant, an elaborate and frequently quoted judgment of this Court in the case of I.A. Sharwani and others v. Government of Pakistan (1991 SCMR 1041) the question regarding equality of citizens before the law, entitlement to equal protection of law, and the principles of the reasonable classification as enshrined in Article 25(1) of the Constitution were dilated upon and examined in depth, relevant portion whereof for convenience and reference is reproduced herein below:--
"Following are the principles with regard to equal protection of law and reasonableness of classification:
(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances may be unreasonable the other set of circumstances;
(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) in order to make a classification reasonable, it should be based:-
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.
Principles as to classification are as under:--
(a) A law may be constitutional even though it relates to a single individual if, on account of some special circumstances, or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself.
(b) There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The person, therefore, who pleads that Article-25, has been violated, must make out that not only has he been treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis and such differential treatment has been unjustifiably made. However, it is extremely hazardous to decide the question of the constitutional validity of a provision on the basis of the supposed existence of facts by raising a presumption. Presumptions are restored to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact;
(c) it must be presumed that the Legislature understands and correctly appreciate the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based on adequate grounds;
(d) the Legislature is free to recognize the degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest;
(e) in order to sustain the presumptions of constitutionality, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation;
(f) while good faith and knowledge of the existing conditions on the part of the Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of the constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation;
(g) a classification need not be scientifically perfect or logically complete;
(h) the validity of a rule has to be judged by assessing its overall effect and not by picking up exceptional cases. What the Court has to see is whether the classification made is a just one taking all aspects into consideration".
In the above quoted judgment of this Court, seized of a pension matter, while dealing with the question of reasonable classification with reference to Article 25 of the Constitution, has held that a reasonable classification will be that all the pensioners as a group are to be treated as one class and all civil servants as a group or to be treated as a separate class and if pay scales of serving civil servants are raised, the civil servants, who have by then already retired cannot have any legitimate grievance to agitate for notional revision of their pay scales for re-computing their pension amounts for any purpose and there cannot be any uniformity in the amounts of pension among the civil servants despite of having equal rank and equal length of service, if they retire not on one date but on different dates and in between such dates pay scales are revised. The pensioner can, however, have a legitimate grievance if he is not treated alike with other pensioners.
The case of the petitioners has also been considered and examined on the touchstone of the principles and the guidelines provided in the above referred judgment of this Court with reference to the provisions of Article 25 of the Constitution, which makes it quite clear that the petitioners being the members of the staff of Physical Education Section of the Educational Institutions of the Federal Government, Islamabad/Federal Area throughout since its inception was and has been treated a separate group, as a whole which never belonged or merged to the general cadre of the school teachers apparently by dint of their nature of duties i.e. a separate class. The impugned notification exclusively related to the school teachers of the general cadre and has not created or made any classification within the category or group of staff members of the physical education/section of the PTIs and so on, similarly placed and situated, to be treated alike. The rationality of the existence of the general cadre of school teachers has never been questioned or assailed till date at any stage and all that can be gathered in view of the agitation of the claim of the petitioners is that by virtue of the impugned notification they claim to have been deprived to further promotions; at the face of it is without any substance for the simple reason that they admittedly do not belong to the group of general cadre of school teachers since existence from its very inception for decades and the petitioners to a separate cadre of physical education though enjoying similar pay scales, grades and posted in the Federal Government Educational Institutions, Islamabad/Federal Area, undisputedly is a separate class and; are not discharging exactly the same or similar nature of duties rather; directly are concerned with the physical education of the students, therefore, right from the very beginning they have been treated and belonged to a separate class of teachers of physical education and such classification, decades old right from its inception is also not unreasonable nor offends the provisions of the Article-25 of the Constitution.
The judgment of this Court passed in the case Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others (2005 PLC (CS) 1335 is not applicable to the facts of the instant case, as the petitioners are not performing exactly the same duties, as are being discharged by the staff members of the general cadre of the school teachers. The contention of the learned counsel for the petitioners, even if be considered that some of the PTIs at time were entrusted with the duties to take classes or deliver lectures to students on a subject in view of their higher educational qualifications would not perse entitle them to be treated as members of the school teachers belonging to general cadre nor for such reason PTIs can be treated as having been merged into general cadre of the school teachers.
It has further been contended by the learned DAG that without prejudice to his other contentions since the departmental appeals filed by the petitioners were barred by time, consequently; the service appeals filed before the learned Tribunal were also hit by limitation and the grounds urged in their Misc. applications filed before the learned Tribunal for condonation of delay being not plausible and convincing had rightly been rejected and; this proposition is contested by the learned ASC for the petitioners on the ground that there was sufficient reason to condone the delay in filing the service appeals beyond prescribed period of limitation. However; he remained unable to refute the main contention raised in such behalf that departmental appeals against the impugned notification were not filed within the prescribed period of limitation. Such a proposition has been dealt with by this Court in its judgment passed in the case of State Bank of Pakistan v. Khyber Zaman and others 2004 PLC (CS) 1213, wherein it has been held that it was a well settled legal proposition that a service appeal would be incompetent in case the appeal before the departmental authority is time barred. In the instant case, undisputedly the departmental appeal was not filed by the petitioners within the prescribed period of limitation, consequently; the service appeal filed before the learned Tribunal would be incompetent and there would be no reason for condonation of such delay in filing the appeal filed beyond the period of limitation before the learned Tribunal on any ground.
In our considered view, the learned Tribunal appropriately rejected the application for condonation of delay and dismissed the Service Appeals on the point of limitation, as well.
It has further been rightly held by the learned Tribunal that it has no jurisdiction to order or to modify the impugned notification or to include teachers of the physical education cadre in the general cadre of the secondary and higher secondary school teachers. The jurisdiction of the Tribunal by virtue of sub-section (1) of Section-4 of the Service Tribunals Act, 1973 conferred the right of an appeal before the Service Tribunal to a civil servant if he is aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of his terms and conditions of the service within thirty days of communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later subject to sub-clause (A), which provides a precondition for filing of a service appeal by providing that an aggrieved civil servant before approaching the Service Tribunal should file an appeal, review or representation as may be provided for under the relevant Rules before the departmental authority and should wait for the expiry of 90 days from the date on which such appeal, review or representation was preferred, if the same is not decided before the expiry of above period, whereas, sub-clauses (b) and (c) provide the cases in which no appeal shall lie to the Service Tribunal namely (i) against an order or decision of departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to higher post or grade and (ii) against an order or decision of a departmental authority made at any time before the 1st July, 1969.
"9. For the aforementioned reasons the appeals fail and are dismissed being misconceived and barred by time. Having said that, we would observed that the respondent Directorate of Education and the Ministry of Education would do well to examine the case of teachers of Physical Education sympathetically, devise an equitable formula for their advancement and remove any heart burning in the interests of good governance."
(Aziz Ahmad Tarar) Leave refused.
PLJ 2006 SC 955 [Appellate Jurisdiction]
Present: Javed Iqbal; Muhammad Nawaz Abbasi and Mian Shakirullah Jan, JJ.
MUHAMMAD NADEEM--Petitioner
versus
STATE--Respondent
J.P. No. 336 of 2004, decided on 2.1.2006.
(On appeal from the judgment of the High Court of Sindh, Karachi dated 7.10.2004 passed in Spl. A. T. Acq. Appeal No. 82 of 2001)
Anti Terrorism Act, 1997 (XXVII of 1997)--
----Ss. 6(c) & 7(ii)--Pakistan Penal Code (XLV of 1860), S. 377--Constitution of Pakistan (1973) Art. 185(3)--Un-natural offence committed on minor boy--Acquittal of appellant reversed by High Court whereby appellant was convicted and sentenced to imprisonment--Legality--Quantum of proof--Appraisal of evidence showed that prosecution has proved accusation by adducing confidence inspiring evidence which could not be appreciated by trial Court in its true perspective--Statement of victim of offence is indicative of the fact that appellant had committed sodomy with him--Victim was subjected to exhaustive cross-examination but inspite of various searching questions nothing beneficial could be extracted--Statement of witness was corroborated by medical evidence--Factum of delay in lodging F.I.R. ipso facto would not cast any doubt on categorical statement of victim duly supported by medical evidence--Judgment of trial Court being based on conjectural presumptions was rightly reversed by High Court which is based on appraisal of entire evidence and the same does not warrant interference--Leave to appeal was refused. [P. ] A, B & C
1996 SCMR 135 and 1978 SCMR 136.
Mr. Sadaqat A. Mirza, ASC for Petitioner.
Nemo for State.
Date of hearing : 2.1.2006.
Judgment
Javed Iqbal, J.--This jail petition for leave to appeal is directed against the judgment dated 12.10.2004 whereby the appeal preferred on behalf of State against acquittal of Muhammad Nadeem (petitioner) has been accepted and the judgment dated 25.9.2001 passed by learned Anti Terrorism Court-II, Karachi has been reversed and the petitioner has been convicted under Section 377 PPC read with Section 6(c) & Section 7(ii) of Anti Terrorism Act, 1997 and sentenced to rigorous imprisonment for 10 years and fine of Rs. 25,000/- and in case of default further to suffer imprisonment for 6 months with further direction to pay compensation of Rs. 25,000/- to the victim and in case of non-payment to suffer imprisonment for 6 months.
"Briefly facts giving rise to the present appeal are that on 15.5.2001, victim Walid Ahmed aged about 10 or 11 years had gone to play Video Game at shop situated on Nizami Road. At about 2:30 p.m. The respondent took him to a double storied school known as "DOMANZALA SCHOOL" on the pretext of finding a boy. Thereafter the respondent committed sexual intercourse with the victim. The victim Walid Ahmed went to his house but his father was not available, who came in the evening. The victim informed the incident to his father. The complainant noticed that the boy was bleeding from rectum and he was weeping. He started inquiries about the respondent and then went to police station alongwith his brother and victim boy where he lodged the report." the petitioner was sent up for trial and on conclusion whereof he was convicted and sentenced a per details mentioned herein above, hence this petition.
Mr. Sadaqat Ali Mirza learned ASC entered appearance on behalf of petitioner and contended emphatically that the judgment of learned trial Court has been reversed on extraneous consideration and conjectural presumptions having no nexus whatsoever with the evidence which has come on record. It is next contended that the medical evidence does not support the ocular version which aspect of the matter has been ignored by the learned High Court causing serious prejudice against the petitioner. It is also contended that there was delay in lodging FIR which is indicative of the deliberation and concoction which has been ignored by the learned High Court resulting in serious miscarriage of justice as no explanation whatsoever could be furnished by the complainant for such delay.
We have scanned the entire evidence with eminent assistance of learned counsel to appreciate the contentions as mentioned hereinabove. The judgment of learned trial Court as well as the judgment impugned have been perused carefully. We are of the considered view that prosecution has proved the accusation by adducing confidence inspiring evidence, which could not be appreciated by the learned trial Court in its true perspective. The statement of Walid Ahmed unfortunate victim of the offence is indicative of the fact that he was taken by the petitioner to school and committed sodomy in a classroom. Walid Ahmed has mentioned in a categoric manner that sodomy was committed by the petitioner. It is to be noted that Walid Ahmed (victim) was subjected to an exhaustive cross-examination but in spite of various searching questions nothing beneficial could be extracted. The statement of Walid Ahmed has been corroborated by Dr. Abdul Razak (PW-3) who observed the following injuries during the examination of the victim:--
"1. Spectrum of buttock was painful.
Mucosa was tender to touch.
Congestion was noted around the anal region."
Dr. Abdul Razak (PW-3) has opined in a categoric manner that Walid Ahmed was subjected to sodomy. We are not persuaded to agree with the prime contention of learned ASC on behalf of petitioner that medical evidence does not support ocular version in view of the opinion of Dr. Abdul Razak (PW-3) as well as the factum of congestion, which was noted around anal region which lend full corroboration to ocular version. The petitioner was also got medically examined and in the opinion of Dr. Ghulam Hussain (PW-2) he was having the capability of performing sexual intercourse. Besides that the victim was referred by Muhammad Soomer (PW-1) to Radiologist to determine his age and after having received the report of Radiologist, Dr. Muhammad Soomer (PW-1) opined that Walid Ahmed was about 11 years of age. It may not be out of place to mention here that father of the victim namely Aziz Ahmed (PW-3) also supported the version of Walid Ahmed and stated that he was informed about incident by Walid Ahmed on 15.5.2001 at sunset time after his arrival to home who also observed blood-stained on the legs of his son which came out from rectum. He has furnished a plausible justification qua the minor delay in lodging FIR as some time was consumed to trace out the petitioner and FIR was got lodged on the next day. The factum of delay ipso facto would not cast any doubt on the categoric statement made by Walid Ahmed victim duly supported by the medical evidence. It may not be out of place to mention here that FIR is a simple device to set the law in motion and where plausible explanation has come on record qua delay the same can be ignored. In this regard we are fortified by the dictum laid down in case Sughran Bibi v. Aziz Begum (1996 SCMR 135). Even otherwise such delay would be of no consequence where there is no evidence of enmity between the parties. If any reference is required the case Zar Bahadar v. State (1978 SCMR 136) can be referred.
We have also kept the defence version in juxtaposition and perused the statement of petitioner got recorded under Section 342 Cr.P.C. which reveals that a false and concocted case was got registered against him due to a dispute between the prosecution witnesses as prior to the incident he met an accident while his motorcycle was hit by the prosecution witnesses who also maltreated him and member of MQM Haqeeqi was also sent to get him apprehended. The petitioner did not opt to get his statement recorded on oath and no evidence whatsoever was led in defence. The plea of innocence and denial simplicitor have rightly been disbelieved by the learned High Court. No specific particulars qua the accident were mentioned and more so the factum of accident could not be substantiated. Even otherwise on such a trivial issue the question of involvement of petitioner in such a heinous case does not arise. A careful perusal of judgment of learned trial Court would indicate that it is based on conjectural presumptions and the evidence which has come on record could not be appreciated in its true perspective and petitioner was acquitted on flimsy grounds. The reasoning as given by learned trial Court does not appear to be convincing and the well-entrenched principles qua appreciation of evidence have not been kept in view while evaluating the same. Be as it may learned High Court vide judgment impugned has appreciated the entire evidence strictly in accordance with law and settled norms of justice. The conclusion arrived at by the learned High Court is based on sound reasoning as given in the judgment impugned which being well based does not warrant interference. The petition being merit less is dismissed and leave refused.
(Aziz Ahmad Tarar) Leave refused.
PLJ 2006 SC 958 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ.
MUHAMMAD IBRAR--Petitioner
versus
STATE--Respondent
Jail Petition No. 129 of 2005, decided on 22.3.2006.
(On appeal from the judgment dated 3.3.2005 of the Lahore High Court Bahawalpur Bench, Bahawalpur passed in Crl. A. No. 147 of 2001)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(c)--Constitution of Pakistan (1973), Art. 185(3)--Conviction and sentence of fourteen years for offence of murder--Legality--Quantum of proof--Ocular testimony of complainant corroborated by medical evidence--Participation of petitioner was also proved in occurrence as he was not only injured in such occurrence but also admitted to have fired at deceased in exercise of right of self-defence whereas witnesses sustained injuries with hard and sharp edged weapon and acquitted accused, father of petitioner sustained one blunt weapon injury on head and his brother received three injuries with blunt weapon and raised plea of self-defence--Main reason which found favour with High Court for reduction in sentence of petitioner was that incident in question, was not premeditated one and that the same took place at the door of petitioner--Impugned judgment based on proper appraisal of evidence does not require interference--Petitioner being devoid of merit, leave to appeal was refused. [P. 962] A
Nemo for Petitioner.
Mr. Dil Muhammad Tarar, ASC for State.
Date of hearing : 22.3.2006.
Judgment
Abdul Hameed Dogar, J.--This petition is directed against common judgment dated 3.3.2005 passed by a learned Division Bench of Lahore High Court, Bahawalpur Bench, Bahawalpur whereby Criminal Appeal No. 147 of 2001 filed by petitioner Muhammad Ibrar was partly allowed, his conviction under Section 302 PPC was altered to under Section 302(c) PPC and the sentence was reduced from imprisonment for life to 14 years R.I. Criminal Appeal No. 147 of 2001 filed by complainant Ghulam Nabi challenged the acquittal of Muhammad Shafi and Muhammad Saif and Criminal Revision No. 68 of 2001 seeking enhancement of sentence of petitioner were dismissed.
Briefly, stated the facts of the case are that on 9.2.1997 complainant Ghulam Nabi lodged FIR No. 10/97 at Police Station Mandi Sadiq Ganj stating therein that on the fateful day at about 3.00 p.m. he alongwith his brothers Liaqat Ali and Niamat Ali and one Alam went to his fields to see their damaged wheat crop. They while passing near the house of acquitted accused Muhammad Shafi protested to him for the damage caused to their wheat crops whereupon said Muhammad Shafi, petitioner Muhammad Ibrar and acquitted accused Muhammad Saif got furated which resulted in exchange of harsh words. Thereafter, acquitted accused Muhammad Shafi armed with hatchet, Muhammad Saif armed with a stick and petitioner Muhammad Ibrar armed with .12 bore double barrel gun launched murderous assault upon them. Petitioner fired from .12 bore double barrel gun and the shot hit at the abdomen of Liaqat Ali deceased. Acquitted accused Muhammad Shafi caused a hatchet blow on the head of Niamat Ali whereas Muhammad Saif caused dang blows on the head and right bicep of complainant. Said Muhammad Shafi also caused hatchet blow on the left arm of Muhammad Alam. On hue and cry PWs Muhammad Ashiq and Noor Ahmad got attracted to the scene of occurrence. As a result of this assault Liaqat Ali lost his life.
The motive behind the occurrence was cause of damage to wheat crop of complainant made by the cattle of acquitted accused Muhammad Shafi.
Petitioner Muhammad Ibrar and above acquitted accused were arrested on 18.2.1997. Petitioner led to the recovery of .12 bore double barrel gun from inside his residential room. After usual investigation they were sent up to face trial.
In order to prove its case prosecution examined 10 witnesses in all.
Dr. Muhammad Sharif (PW-6) conducted the autopsy of deceased Liaqat Ali noticed following injuries on his person:--
A. Entry wound There were ten rounded blackened fire-arm entry wounds of pellets seen on abdomen. Below umbilicus. Margins were inverted radius of each hole was 7 mm. Maximum distance between two holes 12 mm and minimum distance between two holes were 5 cm.
B. Wound Tracks Pellets penetrated through intestine, right iliac vessels and right hip bone and gluteal muscles. Three pellets recovered from right buttock.
C. Exit wound There were four rounded exit wounds of pellets on right buttock with averted margins radius 4 mm.
Irrespective of injured Ghulam Nabi (PW-1), Niamat Ali (PW-2) and Muhammad Alam (PW-3), petitioner Muhammad Ibrar and acquitted accused were also medically examined by Dr. Muhammad Sharif (PW-6).
"The day of occurrence was an Eid day. I alongwith my father and brother was in my house. Niamat Ali brother of Liaqat Ali deceased came near our house and gave slaps and fists blows to me saying that we had damaged their crop. I replied that we had no cattle at all so there was no question of damaging their crop. Niamat Ali returned to his house which is at a distance of about 1« kilometers from house. After some time Niamat Ali alongwith Liaqat Ali deceased, Muhammad Alam, Ghulam Nabi and few others persons armed with Dangs and hatchets came to our house. I alongwith my brother Muhammad Saif, was in our house. Niamat Ali and his companions attached upon our house and started causing abuses us and also started causing injuries to me and my brother Muhammad Saif. My mother and sisters intervened and they were also given beatings by the complainant party. My father Muhammad Shafi who was irrigating the land near our house reached at the spot on hearing hue and cry. When he reached in our house, Niamat Ali, Ghulam Nabi and Liqat Ali caught hold of him and started giving slaps, fists blows and also injuries with soties. Liaqat Ali deceased caught hold of my father Muhammad Shafi and made him fall on the ground and he sat on his chest and started strangulating his throat. I apprehending death and grievous injury to my father and ourselves went inside my house and brought licensed gun with that gun I made fire on Liaqat Ali when he was sitting on the chest of my father and trying to strangulate him.
Our house is the only house at the place of occurrence where we used to cultivate land. The village abadi and the houses of deceased and complainant party and the PWs. were situated at the distance of 1 « Kilometers. The complainant party duly armed with sticks and hatchets had traveled 1 « Kilometers from their house and attacked upon our house. The complainant party wanted to dispossess us from the land which we used to cultivate and for that reason they had attacked upon our house.
I alongwith my brother and father in injured condition had reported the matter to the police. We were also got medically examined by the police. The complainant party is an influential party and land owners of the village whereas we were poor persons and tenants. The complainant party prevailed over the police and got registered the present case by twisting the actual incident. The gun was produced by us on the very first day of occurrence before the police. We had no cattle. The story of grazing buffaloes and damage of complainant's party crop has been introduced in the complaint after more than a year of the date of occurrence."
He neither opted to give statement on Oath as required under Section 340(2) Cr.P.C. nor led any evidence in his defence.
On conclusion of trial petitioner was convicted and sentenced under Section 302 PPC to imprisonment for life and to pay Rs. 50,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. while co-accused were acquitted from the charge.
On appeal the learned High Court vide impugned judgment altered the conviction of the petitioner from 302 PPC to 302(c) PPC and reduced to sentence to 14 years R.I. However, the sentence of compensation under Section 544-A Cr.P.C. and benefit of Section 382-B Cr.P.C. was remained intact.
None is present on behalf of petitioner whereas Mr. Dil Muhammad Tarar, learned ASC is present on behalf of State and with his kind assistance we have gone through the record and impugned judgments.
It is pertinent to note that petitioner did not challenge the appeal on merits before learned High Court but urged for reduction of sentence only.
Prosecution has successfully brought on record ocular testimony of Ghulam Nabi (PW-1), Niamat Ali (PW-2) and Muhammad Alam (PW-3) which stands corroborated by medical evidence. Participation of petitioner is also proved in the case as he was not only injured in the incident but also admitted to have fired at deceased Liaqat Ali in exercise of right of self-defence. Admittedly, Liaqat Ali lost his life, whereas PWs Ghulam Nabi, Niamat Ali and Alam sustain injuries with hard and sharp edged weapon whereas acquitted accused Muhammad Shafi his father sustained one blunt weapon injury on head and acquitted accused Muhammad Saif his brother received three injuries with blunt weapon and raised the plea of self-defence. The main reason with weighted with the learned High Court for reduction in sentence of petitioner was that it was not a premeditated incident and that it took place at the door of petitioner. Impugned judgment is based on proper appraisal of evidence and does not require interference.
Accordingly, the petition being devoid of force is dismissed and leave to appeal refused.
(Aziz Ahmad Tarar) Leave refused.
PLJ 2006 SC 962 [Appellate Jurisdiction]
Present: Javed Iqbal; Muhammad Nawaz Abbasi and Raja Fayyaz Ahmad, JJ.
MUSHTAQ HUSSAIN alias MUSHTAQI and another--Petitioners
versus
STATE--Respondent
J.Ps. Nos. 9 & 10 of 2005, decided on 4.1.2006.
(On appeal from the judgment of the Lahore High Court, Lahore dated 26.11.2004 passed in Crl. As. Nos. 619 & 239 of 2004)
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 7(i)--Pakistan Penal Code (XLV of 1860), Ss. 392, 353--Constitution of Pakistan (1973), Art. 185(3)--Looting of money from possession of complainant and his companion on pistol point--Conviction and sentence of imprisonment assailed--Perusal of evidence on record would show that petitioners had played pivotal role in commission of alleged offence--Inspite of exhaustive cross-examination nothing advantageous could be elicited rendering any help to petitioners--Amount in question, was proved to be looted by petitioners who were duly armed with fire-arms and one of them was apprehended at the spot by Police Officials who were available at place of occurrence and looted amount was also recovered which strong piece of corroboration and the same cannot be discarded--Prosecution witnesses were natural and impartial having no enmity against petitioners--Weapons of offence were also recorded from petitioners--Identification parade would be unnecessary where witnesses claim that they could identify accused persons--Defence version when part in juxta-position to prosecution version appears to be false; fabricated and an after thought which was rightly rejected by trial Court and the High Court--No interference was warranted in impugned judgment which was well reasoned and un-exceptionable--Leave to appeal was thus, refused. [Pp. 965 & 966] A
PLD 1995 SC 1 and 1992 SCMR 129, ref.
Mr. Zulfiqar Khalid Maluka, ASC for Petitioners (in both cases).
Sh. Mahmood Ahmad, ASC for State.
Date of hearing : 4.1.2006.
Order
Javed Iqbal, J.--These petitions for leave to appeal are directed against the judgment dated 26.11.2004 where by the criminal appeal preferred on behalf of petitioners has been dismissed and the judgment dated 9.2.2004 passed by learned Special Court-III, Lahore constituted under the Anti Terrorism Act, 1997 has been kept intact, whereby the petitioners were convicted & sentenced as follows:--
(1) Under Section 7(i) of Anti Terrorism Act, 1997:--to four years RI each.
(2) Under Section 392 PPC:--to seven years RI each with a fine of Rs. 50,000/- each in default whereof to further undergo RI for six months each.
(3) Under Section 353 PPC:--to a fine of Rs. 1,000/- each in default whereof to undergo RI for one week each.
(4) Benefit on Section 382-B Cr.P.C.:--was extended to them and the sentence were directed to run concurrently.
"The prosecution story, as unfolded through FIR registered on the statement of the complainant, briefly stated is that on 22.1.2003, the complainant Sher Ali Bhatti alongwith his Muhammad Riaz came to Standard Charted Bank, Garden Town, Lahore, and got an amount of Rs. 6,90,000/-. He put Rs. 600000/- in a bag and the remaining Rs. 90,000/- were given by him to his employee Muhammad Riaz. They proceeded for City Bank, Alfalah Building Branch, the Mall Road, Lahore, in their Car No. LOY-989. When they reached near Alhamra Art Council at 11:30 a.m., both the accused stopped their Motorcycle No. LRB-753 in front of their car forcing them to stop their car on pistol point, both the accused snatched the said amount from the complainant and his employee Muhammad Riaz and ran away on their motorcycle. Meanwhile, some police officials in an official vehicle reached there. The complainant informed them about the occurrence. The police chased the accused-persons whereupon the accused-persons started firing on the police party. On reaching Chowk Faisal, the police gave a push of official vehicle to the motorcycle of the accused-persons fell down alongwith their motorcycle. However Muhammad Saleem accused succeeded to run away making firing alongwith Rs. 90,000/- from the spot while his companion Mushtaq Hussain alias Mushtaqi was caught hold of by the police and Rs. 6,00,000/- were recovered from him alongwith a .30 bore pistol and live bullets. The motorcycle of the accused persons was also taken into possession by the police. Mushtaq Hussain accused was injured due to fall on the ground from his motorcycle, as the motorcycle was given a push by the vehicle of the police. Later on, Muhammad Saleem accused was arrested and Rs. 40,0000/- were recovered from him besides a .30 bore pistol and live bullets. Separate cases for unlicensed arms were got registered against both the accused-persons under the Arms Ordinance." the petitioner was sent up for trial alongwith co-accused namely Muhammad Saleem and on conclusion whereof the petitioners were convicted and sentenced as per details mentioned in the preceding paragraph.
Mr. Zulfiqar Khalid Maluka, learned ASC entered appearance on behalf of the petitioners and mainly contended that a false and concocted case was got registered by the police to show its efficiency but the accusation could not be substantiated by producing cogent and concrete evidence. It is next conceded that statements of police officials should have been discarded being interested witnesses who have deposed falsely in order to get the conviction of the petitioners. It is argued that the prosecution has concealed the factum of injuries sustained by the petitioner which creates doubt about the prosecution story benefit whereof should have been given to petitioner. It is next contended that no identification parade could be held and thus the identification of the petitioners being doubtful no conviction could have been awarded. It is also contended that prosecution has failed miserably to prove that by whom the bag containing the alleged recovered amount was snatched which is demonstrative of the fact that prosecution has concocted a false story. It is also pointed out that the material contradictions in the statements of prosecution witnesses have been ignored having a substantial bearing on merits of the case which resulted in serious miscarriage of justice.
Sh. Mahmood Ahmed, learned ASC appeared on behalf of State and supported the judgment impugned for the reasons enumerated therein with the further submission that overwhelming incrimnating evidence has come on record showing that petitioners were responsible for the commission of alleged offences. It is also submitted that prosecution has established the guilt beyond any shadow of doubt by producing worthy of credence evidence and the alleged amount was also recovered from the petitioner which lends corroboration to the eye account furnished by the prosecution witnesses.
We have carefully examined the contentions as agitated on behalf of the parties, scanned the entire evidence which has come on record by keeping the defence version in juxtaposition and perused the judgment of learned trial Court as well as the judgment impugned. A careful scrutiny and in-depth evaluation of the entire evidence would reveal that prosecution has substantiated the accusation by producing cogent and concrete evidence. In this regard the eye account has furnished by Muhammad Arshad (PW-3), Sher Ali Bhatti (PW-10) Naseem-ul-Hye/Inspector Police (PW-12) can be referred. A conscious analysis of the deposition of the above mentioned PWs would reveal that petitioners have played a pivotal role in the commission of alleged offences. No glaring contradiction could be pointed out in their statements and in so far as the minor contradictions are concerned the same do creep in with the passage of time and can be ignored safely. It is wroth mentioning that in spite of exhaustive cross-examination nothing advantageous could be elicited rendering any help to the case of petitioners. The statements of Muhammad Arshad (PW-3) and Sher Ali Bhatti (PW-10) have rightly been considered and relied upon by the learned trial Court who made it abundant clear in their statements that alleged offences were committed by the petitioners. The amount in question was looted by the petitioners who were duly armed with fire arms and Mushtaq Hussain (petitioner) was apprehended at the spot by the police officials who were fortunately available at the place of occurrence and looted amount was also recovered which is a strong piece of corroboration and cannot be discarded. We are of the firm opinion that all the prosecution witnesses were natural and impartial having no enmity or rancour against the petitioners. In view of the overwhelming evidence as mentioned herein above the question of false implication of the petitioners does not arise who were apprehended at the spot duly armed with .30 bore pistol and besides that the looted amount was also recovered as mentioned herein above. We are not persuaded to agree with the prime contention of learned ASC that no identification parade could be held and therefore the identification of petitioners being doubtful, they should have been given benefit of doubt for the simple reason that identification parade was absolutely unnecessary because it becomes essential if a witness gets a momentary glimpse of the accused and he claims that he would be able to identify the accused in such an eventuality identification test becomes inevitable which is to be conducted in accordance with law as laid down by this Court in case State v. Farman Hussain Shah (PLD 1995 SC 1). Even otherwise the identification parade is immaterial if the identification of the accused is proved by other convincing evidence. In this regard reference can be made to the case of Muhammad Afzal v. The State (1982 SCMR 129). The statements of prosecution witnesses specially Sher Ali Bhatti PW-10 and Muhammad Arshad PW-3 are indicative of the fact that there was absolutely no doubt in their minds qua identification of petitioner who was apprehended at the spot. In such view of the matter identification parade was not necessary at all. In so far as the injuries sustained by the petitioner are concerned a plausible justification has been given by the prosecution that the same were caused due to accident as the police vehicle hit the motorcycle which was being driven by the petitioner alongwith co-accused and resultantly the petitioner had fallen on ground and sustained a few injuries. In view of such a plausible justification no adverse inference as pressed time and again by the learned ASC on behalf of petitioners can be drawn. In our considered opinion this aspect of the matter further lends corroboration to the prosecution case.
We have also kept the defence version in juxtaposition which being false, fabricated and an after thought has rightly been rejected by the Courts below. No other point was argued. The evidence which has come on record has rightly been appreciated by the learned trial Court determination whereof has been upheld by the learned High Court vide judgment impugned which being well reasoned and unexceptionable does not call for any interference for which no lawful justification or concrete reasoning is available. The petitions being devoid of merit are dismissed and leave refused.
(Aziz Ahmad Tarar) Leave refused.
PLJ 2006 SC 966 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ.
MUHAMMAD NABI and 4 others--Petitioners
versus
STATE--Respondent
Crl. P. No. 50 of 2004, , decided on 26.1.2006.
(On appeal from the judgment dated 6.1.2004 of the High Court of Balochistan, in Criminal Appeal No. 255 of 2001)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 365-A & 337-F (ii)--Constitution of Pakistan (1973), Art. 185(3)--Abduction and demand of ransom for release of abduction--Conviction and sentence of imprisonment assailed--Quantum of proof--Petitioners voluntarily confessed their guilt and their confessional statements were fully corroborated by Magistrate concerned who stated in his testimony that the same were true and voluntary--Record would indicate that immediately after abduction petitioners demanded ransom amount and got letter written from complainant to his brother for the same--Irrespective of that, petitioners, took specified amount from abductees during their captivity--Ingredients of S. 365-A P.P.C. were thus, fully attracted--Nothing was pointed out from record to interfere with concurrent findings of Courts below--Case being heinous in nature, petitioners could not be treated lightly therefore, they do not deserve any leniency leave to appeal was refused. [P. 969] A
Mr. Muhammad Anwar Sipra, ASC for Petitioners.
Nemo for State.
Date of hearing : 26.1.2006.
Judgment
Abdul Hameed Dogar, J.--This petition is directed against the judgment dated 6.1.2004 passed by a learned Division Bench of the High Court of Balochistan, Quetta, whereby Crl. Appeal No. 255 of 2001 filed by the petitioner was dismissed and their conviction and sentence under Section 365-A PPC to imprisonment for life and under Section 337-F(ii) to three years with compensation of Rs. 10,000/- to be paid to each injured/abducted person as Daman or in default was directed to be dealt with in terms of Section 337-Y PPC and under Section 342 PPC to suffer R.I. for five years awarded by the trial Court were maintained.
Precisely the case of the prosecution is that on 24.3.1998 PW-7 complainant Syed Obedullah Shah was going to Zhob from Qamar Din Karez in his vehicle. Muhammad Ibrahim also accompanied him when at about 1.30 p.m. They reached near Musafir Bridge on Quetta Zhob Road, a person standing armed on the road side, signaled them to stop. While the driver did not stop the vehicle, as a result firing was made at the vehicle from both the sides of the road. Thus vehicle was stopped and complainant Malik Haji Muhammad received bullet injury. Meanwhile armed persons grappled them and blind folded them and drove the vehicle to an unknown place where they alighted them at some place. Three culprits stood there whereas two of them took the vehicle to some unknown place. Thereafter, they asked him to write a letter to his brother for payment of rupees fifty lacs as ransom. They spent the night there and in the morning, the abductees were taken to the hilly area. As the complainant was injured, they used to serve him with tea and thereafter they took cash of rupees ten thousand from them. In the meanwhile, Assistant Commissioner Zhob raided the said place. In an encounter, the petitioners were arrested and the complainant and abductees were recovered from their possession. During investigation, the blood-stained clothes of complainant Syed Obedullah Shah were recovered. Blood-stained clothes of petitioner Taweez Khan who was injured in the encounter was also taken into possession. The cash amount was recovered from petitioners Muhammad Nabi and Bakht Muhammad vide memo Ex. PA. On 25.3.1998 confessional statements of all the petitioners were recorded by the Magistrate in which they confessed the guilty. Thereafter, they were sent up to face trial before the Special Judge, STA, Zhob.
To establish its case the prosecution examined PW-1 Sultan Shah, Assistant Commissioner/Magistrate, who testified that the petitioners voluntarily confessed their guilt and such confessional statements were recorded by him. PW-2 Malik Haji Muhammad Rahim informed the Levies Authorities about the abandoned vehicle of complainant. PW-3 Abdul Ghaffar, Jamadar Special Levies Zhob witness of recovery of abductees fully testified that abductees were recovered during encounter from the possession of the petitioners and also blood-stained clothes of abductee Syed Obedullah Shah and petitioner Taweez Khan were taken into possession. PW-4 Dr. Arif Khan examined abductees Syed Obedullah Shah, XEN, Akbar Khan driver and petitioner Taweez Khan, PW-5 Yar Muhammad was the marginal witness of recovery of vehicle of XEN which was taken into possession in his presence. PW-6 Muhammad Shah also accompanied the raiding party and was the witness of recovery memo. PW-7 Syed Obedullah Shah, PW-8 Akbar Khan driver and PW-9 Muhammad Ibrahim the abductees fully supported the case of prosecution. PW-10 Abdul Ahmed, Naib Tehsildar was the Investigating Officer. PW-11 Saifullah, Naib Tehsildar submitted the challan in the Court. PW-12 Noorullah Naib Tehsildar was also the member of the raiding party who recovered the abductees. And PW-13 Abdul Naffey brought the vehicle of the XEN from Shaghaloo to Zhob and informed Deputy Commissioner Zhob about the said incident.
Petitioner in their respective statements recorded under Section 342 Cr.P.C. denied the case of the prosecution and claimed innocence. They neither examined themselves on oath as required under Section 340(2) Cr.P.C. nor led any evidence in defence.
On conclusion of trial the petitioners were convicted and sentenced as stated above.
Being aggrieved, petitioners challenged the judgment in appeal before the learned High Court of Balochistan, Quetta, which was dismissed vide impugned judgment.
We have heard Mr. Muhammad Anwar Sipra, learned ASC for the petitioners and have gone through the record and the proceedings of the case in minute particulars.
It is vehemently contended that the confessional statements were recorded belatedly. He argued that all the three abductees have only implicated petitioners Hameed Gul, Taweez Khan and Bakht Muhammad whereas have exonerated petitioners Muhammad Nabi and Ghami therefore, they are entitled for acquittal. According to him offence does not fall under Section 365-A PPC and at the most it falls within the ambit of Section 365 PPC, therefore, the sentences awarded to the petitioners were harsh.
Admittedly, the abductees were recovered from the possession of the petitioners on the next day of the incident i.e. 25.3.1998 during that encounter which took place in between raiding party and the petitioners. During that encounter complainant Syed Obedullah Shah as well as petitioner Taweez Khan were got injured. Besides that all of them voluntarily confessed their guilty. Accordingly their confession statements were recorded by PW-1 Sultan Shah, Assistant Commissioner who fully corroborated and stated that the said confessional statements were true and voluntarily. It is also established on record that immediately after the abduction, petitioners demanded a ransom amount of Rs. 50 lacs and got said letter written from complainant Syed Obedullah Shah to his brother. Irrespective of the same, it is also proved on record that the petitioners took Rs. 10,000/- from the abductees during their captivity. Thus the ingredients of Section 365-A PPC. are fully attracted. Simple demand of ransom amount for the release of abductees is sufficient to bring the case within its ambit. Though heard at length yet learned counsel for the petitioners could not refer any illegality or irregularity in the impugned judgment warranting interference by this Court.
Accordingly, we do not find any reason to interfere with the concurrent findings of two Courts below. The case being heinous in nature should not be treated lightly, as such, petitioners do not deserve any leniency.
Resultantly, the petition being devoid of force is dismissed and leave to appeal refused.
(Aziz Ahmad Tarar) Leave refused.
PLJ 2006 SC 969 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Falak Sher, JJ.
MUHAMMAD SARWAR and another--Petitioners
versus
STATE--Respondent
J.P. No. 37 of 2005, decided on 24.2.2006.
(On appeal from the judgment dated 23.12.2004 of the Lahore High Court Lahore passed in Crl. A. No. 149-J/2000).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan (1973), Art. 185(3)--Conviction and sentence of death for offence of murder, assailed--Legality--Ocular version stood fully corroborated by medical evidence--Empties recovered from place of occurrence matched with guns recovered from petitioners--Positive report of Forensic Science Laboratory was sufficient to believe that fires have been made from guns recovered from petitioners--Counter version of defence that complainant party had come to abduct female of their household, when put in juxtaposition to prosecution version appears to be false while non-examination of female concerned was vital--Petitioners counsel has failed to point out any misreading, non-reading or non-appreciation of evidence in impugned judgment--Concurrent judgments to Courts below were maintained--Leave to appeal was refused. [P. 972] A
Syed Ali Hassan Gillani, ASC for Petitioner.
Ch. Munir Sadiq, ASC for Respondent.
Dates of hearing : 23 & 24.2.2006.
Judgment
Abdul Hameed Dogar, J.--This petition is directed against judgment dated 23.12.2004 passed by a learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeal No. 149-J of 2000 filed by petitioners Muhammad Sarwar and Muhammad Tufail was dismissed and their conviction under Section 302(b) PPC and sentence of death for committing murder of Shah Muhammad and Muhammad Aslam with compensation of Rs. 50,000/- each to be paid to the legal heirs of deceased or in default to undergo 6 months S.I. awarded by the trial Court was maintained. Murder Reference No. 373 of 2000 was answered in affirmative.
Precisely the case of prosecution as narrated by complainant Muhammad Yasin is that on 16.8.1998 at about 9.30 a.m. he, Khadim Hussain (PW-4), deceased Muhammad Aslam his nephew and deceased Shah Muhammad went to the house of Wali Muhammad their cousin located in Basti Sohan. At about 9.45 a.m. deceased Muhammad Aslam and Shah Muhammad went out of the house of Wali Muhammad in order to go to their home while complainant and Khadim Hussain were present in the courtyard of the house of Wali Muhammad, they heard noise outside and saw petitioner Muhammad Sarwar armed with double barrel gun raised lalkara to teach a lesson to Muhammad Aslam for insult and fired at him hitting his chest, left arm, left thigh, right leg and right ribs who fell down. Deceased Shah Muhammad tried to rescue him whereupon petitioner Muhammad Tufail fired at him hitting on different parts of body who also fell down. Both of them succumbed to the injuries at the spot.
The motive behind the incident was stated to be that petitioner Muhammad Tufail was married to Mst. Haleema Bibi daughter of Talib Hussain about 12/13 years ago. Petitioner Muhammad Tufail did not like his wife. Deceased Muhammad Aslam has refrained petitioner Muhammad Tufail from divorcing his wife and hot words were exchanged between them in front of the house of Wali Muhammad two days prior to the occurrence but the matter was settled by the respectable.
Investigation was taken over by Muhammad Hayat SI/SHO (PW-9) who inspected the place of occurrence, took dead bodies of deceased and prepared inquest report and sent the bodies for postmortem. He also took into possession blood-stained earth from beneath the deceased bodies of Muhammad Aslam and Shah Muhammad. He also recovered 6 crime empties from the place of occurrence. Nazir Ahmed Draftsman also prepared the sketch of the incident. .12 bore double barrel gun alongwith 5 live cartridges was recovered from possession of petitioner Muhammad Sarwar whereas .12 bore single barrel gun alongwith 5 live cartridges was recovered from petitioner Muhammad Tufail during investigation.
4A. At trial prosecution examined 10 witnesses in all. Learned prosecutor tendered in evidence report of Chemical Examiner, Serologist and Forensic Science Laboratory.
"I am innocent. Mst. Haleema Bibi is the wife of my brother Tufail. Aslam deceased had used to visit our house and developed illicit relations with Mst. Haleema wife of my brother Tufail. My brother Tufail had forbidden many times Aslam deceased but he did not stop from visiting her house. On the day of occurrence, my brother Tufail was not present in the house as he had gone outside for labour purposes when Shah Muhammad and Aslam deceased alongwith four/five Gundas came at our house in the absence of my brother Tufail and tried to abduct Mst. Haleema Bibi and in order to save the prestige of our family as well as the abduction of Mst. Haleema Bibi, I fired with my gun P.2 which hit Aslam and Shah Muhammad. I had not committed this act intentionally, but to save the honour of my family and abduction of Mst. Haleema Bibi. The PWs are interse related and are not residents of the same locality and they only deposed against me due to relationship with the deceased and grudge with us."
They did not opt to record statement on Oath as required under Section 340(2) Cr.P.C., however, produced Jalal Din (DW-1) in their defence.
On conclusion of trial petitioners were convicted and sentenced as stated above.
We have heard Syed Ali Hasan Gillani, learned counsel for the petitioner and Ch. Munir Sadiq, ASC on behalf of State at length and have gone through the record and proceedings of the case in minute particulars.
Learned counsel appearing on behalf of petitioners contended that eye-witnesses are not residents of the locality and have been planted in this case. They in their statement have not disclosed any reason for their presence in the early hours of day as such their presence is doubtful. He next contended that Wali Muhammad who was cited as witness and his statement under Section 161 Cr.P.C. was recorded was not examined which fact also shows that the incident has not taken place in the manner as has been stated in the case by prosecution. He further contended that eye-witness account does not confirm injuries over persons of the deceased. According to him, although petitioners took a defence plea yet the initial burden to prove the case lies upon the prosecution.
On the other side learned counsel appearing on behalf of State supported the impugned judgment and contended that question of mistaken identity does not arise in this case as the incident has took place in a broad-day-light. The defence taken by petitioners is misconceived as the blood-stained earth was recovered from outside the house of Wali Muhammad and not from inside the house of petitioners, even Mst. Haleema Bibi was not examined by the petitioners in their defence in order to substantiate their stance.
We have given out anxious thought but do not agree with the learned counsel appearing on behalf of petitioners mainly for the reasons that incident in this case has taken place outside the house of Wali Muhammad, therefore, the stance taken by petitioners is falsified and non-examination of Mst. Haleema Bibi in their defence is also vital. Therefore, theory put forth by petitioners that deceased had come to abduct Mst. Haleema Bibi has no force at all irrespective above, ocular version given by eye-witnesses complainant Muhammad Yaseen and Khadim Hussain is fully corroborated by medical evidence. The empties recovered from the place of occurrence matched with the guns recovered from the petitioners and the positive report of Forensic Science Laboratory is sufficient to believe that fires have been made from said guns. Learned counsel has failed to point out any misreading, non-reading or non-appreciation of evidence in the impugned judgment. We also do not find any reason to interfere with the concurrent findings of the two Courts below, which are maintained.
Accordingly, the petition being devoid of force is dismissed and leave to appeal refused.
(Aziz Ahmad Tarar) Leave refused.
PLJ 2006 SC 973 [Shariat Appellate Jurisdiction]
Present: Justice Abdul Hameed Dogar (Chairman); Mian Shakirullah Jan; Raja Fayyaz Ahmad; Dr. Allama Khalid Mehmood and Dr. Rashid Ahmad Jullundhari, JJ.
NADEEM--Petitioner
versus
STATE--Respondent
J.P. No. 37(S) of 2004, decided on 16.12.2005.
(On appeal from the judgment dated 24.3.2004 of Federal Shariat Court Islamabad passed in Jail Crl. Appeal No. 205-I 2001 & Crl. Murder Ref. No. 6-I of 2003).
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----S. 12--Pakistan Penal Code (XLV of 1860), Ss. 302-A, 377 & 201--Constitution of Pakistan (1973), Art. 203-G--Conviction and sentence of death for offence of murder and, sentences of imprisonment for other crimes--Legality--Quantum of proof--Testimony of complainant in support of case of prosecution as disclosed in F.I.R. has established version of prosecution--Most strong factor which implicates petitioner with commission of offence is disclosure about commission of sodomy with deceased boy and then throttling him to death and throwing his body in canal which was recovered immediately after his arrest on his pointation--Witnesses of recovery have corroborated such recovery--Such strong evidence thus, established case of prosecution against petitioner--Version of prosecution remained uncontradicted by defence--No illegality, irregularity misreading, non reading and mis-appreciation of evidence was pointed out--Impugned judgment of Courts below as maintained--Leave to appeal was refused. [P. 975] A
Mr. Arshad Ali Ch., ASC for Petitioner.
Nemo for State.
Date of hearing : 16.12.2005.
Judgment
Abdul Hameed Dogar, J.--Petitioner, Nadeem, seeks leave to appeal against the judgment dated 24.3.2004 of the learned Federal Shariat Court, Islamabad, whereby Jail Criminal Appeal No. 205-I/2002 filed by him was dismissed and his conviction and sentences awarded by trial Court was maintained.
Briefly, stated the facts of the case are that on 4.6.2001, complainant Abdul Hameed (PW-4) appeared before Muhammad Raees S.I. Incharge, Police Post, By Pass Police Station, Galla Mandi, and submitted complaint in writing, which was later on reduced into formal FIR, wherein he stated that on 2.6.2001 at about 8.00 p.m. Langer of Khattam Sharif was being distributed at the house of his brother-in-law Habib and many children had gathered there. His son Aamer Hamid aged seven years, who has already gone there, was enticed away by petitioner and did not return till 10.00 p.m. During search, the complainant met Muhammad Ali (not produced) and Muhammad Yasin (PW-5), who informed him that they had seen Aamer Hamid proceeding on the bank of 9/L Canal alongwith the petitioner. After sometime they saw the petitioner coming back alone and on asking he started trembling and could not reply satisfactorily, as such, was pressurized, whereafter, he succeeded in running away. The complainant had firm belief that the petitioner had abducted his son with intention to commit unnatural offence and after the commission of sodomy he might have been done to death. The petitioner was arrested on 4.6.2001, on the day when FIR was registered and immediately after his arrest he disclosed and led to the place of occurrence. He disclosed about the commission of offence and on his pointation a pair of chappal (softi) was recovered, which was taken into possession vide recovery memo Exh-PE. The dead body of Aamer Hamid was recovered 50/55 feet away from the spot, down stream, which was sent to the hospital and post mortem examination was conducted.
After usual investigations, the petitioner was sent up for trial before the learned trial Court. The learned trial Court framed the charge against the petitioner, who pleaded innocence and claimed to be tried.
The prosecution in order to establish its case examined 10 witnesses, namely, Muhammad Saeed Akhtar (PW-1), Haq Nawaz (PW-2), M. Tariq (PW-3), Abdul Hameed (PW-4), Muhammad Yaseen (PW-5), Parvaiz Noor (PW-6), Dr. Munir Ahmed (PW-7), Manzoor Ahmed ASI (PW-8), Muhammad Raees, SI (PW-9) and Farzand Ali H.C. (PW-10).
Petitioner in his statement recorded under Section 342 Cr.P.C. denied the case of prosecution and claimed innocence. He neither examined himself on Oath as required under Section 340(2) Cr.P.C. nor led any evidence in defence.
On conclusion of the trial, he was found guilty and was convicted and sentenced as under:--
U/S. 12 of the Offence of Zina (E.O.H) Ordinance VII 1979. Death and a fine of Rs. 50,000/- or in default six months R.I. The fine if recovered, half of it shall be paid to L.Rs of deceased as compensation.
U/S. 302 (A) PPC Death.
U/S. 377 PPC Ten years R.I. and a fine of Rs. 10,000/- or in default three months R.I.
U/S. 201 Seven years R.I. and fine of Rs. 20,000/- or in default three months R.I. The fine if recovered half of which shall be paid to L.Rs of deceased as compensation with benefit of S. 382-B Cr.P.C.
Being aggrieved, the petitioner challenged the judgment in appeal before learned Federal Shariat Court, Islamabad which was dismissed vide impugned judgment.
We have heard Mr. Arshad Ali Ch. learned counsel for the petitioner and have gone through the record and the proceedings of the case in minute particulars.
Dr. Munir Ahmed Qadari, Medical Officer (PW-7) conducted autopsy of the deceased and observed that it was a dead body of a boy aged about 7 to 8 years and there were scratches on the neck on front side. Rectum was protruding from the anus. There was an abrasion present at 11.0' Clock position on anus and a laceration about 3/4 c.m. x half c.m. on 12 O's clock position at a no Rectal junction. On dissection sub-cutenous haemorrhage were present on front of neck and on both sides of neck. Pieces of small and large intestines were sent to the Chemical Examiner. Ultimately, after seeing the report of Chemical Examiner and report of Bacteriologist he came to the conclusion that the cause of death was throttling. He also sent two ractal swabs to Chemical Examiner for detection of semen, which were found stained with semen.
The prosecution in this case has been able to bring on record the testimony of complainant Abdul Hameed, who supported the case of prosecution as disclosed in the FIR. PWs Muhammad Yasin and Parvaiz Noor unequivocally deposed that they saw minor Aamer Hameed going alongwith the petitioner at the bank of canal and during the search on the night of incident complainant and the above witnesses saw the petitioner coming back alone and on enquiry he got perturbed and ran away. The most strong factor, which implicates the petitioner with commission of offence is disclosure about the commission of sodomy with the deceased boy and then throttling him to death and thrown his body in the canal, which was recovered immediately after his arrest on 4.6.2000 on his pointation Muhammad Yaseen (PW-5) and Parvaiz Noor (PW-6) also corroborated the version that dead body of boy was recovered from the canal. This being strong piece of evidence has established the case of the prosecution against the petitioner. Above all the petitioner has not given any satisfactory reply of the questions put to him under Section 342 Cr.P.C. so much so he neither examined himself on oath nor produced any witness in defence. Learned counsel though argued at length, yet, could not point out any illegality, misreading, non reading or mis-appreciation of evidence from the impugned judgment. There is no substance to interfere in the impugned judgment, which is accordingly, maintained. The petition being devoid of force is dismissed and leave to appeal refused.
(Aziz Ahmad Tarar) Leave refused.
PLJ 2006 SC 976 [Appellate Jurisdiction]
Present: Javed Iqbal; Muhammad Nawaz Abbasi and Raja Fayyaz Ahmed, JJ.
RIASAT ALI--Petitioner
versus
STATE--Respondent
J.P. No. 407 of 2004, decided on 4.1.2006.
(On appeal from the judgment of Lahore High Court Multan Bench dated 27.9.2004 passed in Crl. A. No. 371/2000)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 (b) & 324--Constitution of Pakistan 1973, Art. 185(3)--Sentence of death for offence of murder--Legality--Parties being close relative, their residential houses were at a close distance from cattle shed of complainant party, therefore, presence of witnesses with deceased at time of occurrence was quite natural--Petitioner having admitted occurrence sole question would be as to whether deceased and complainant were victim of aggression or they were aggressors and accused in exercise of right of their self-defence while resisting their aggression caused injuries to them--Petitioner's claim that occurrence took place in court-yard of their house was not borne out from record in as much as, blood-stained earth was recovered from place pointed out by complainant party--Such claim of prosecution was not contradicted by defence--Eye-witnesses were most natural witnesses and one of them also sustained injuries in occurrence at the hand of petitioner--If defence version was put in juxtaposition with prosecution case, there would not be remote possibility of its occurrence--Deceased as per medical evidence suffered four fire-arm injuries on most sensitive part of body and the same would suggest that shots were fired with intention to kill--Occurrence appeared to be pre-planned, therefore, no question of leniency in sentence of death would arise--Concurrent findings of two Courts regarding guilt of petitioner would not call for interference--Leave to appeal was refused. [P. 979] A
Mr. Javed Aziz, ASC for Petitioner.
Mr. Dil Muhammad Tarar, ASC for Respondent.
Date of hearing : 4.1.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This jail petition has been directed against the judgment dated 27.9.2004 passed by a Division Bench of Lahore High Court, in a joint criminal appeal preferred by the petitioner and his co-accused Abdul Sattar against their conviction and sentence awarded to them by the trial Court. The petitioner was awarded sentence of death under Section 302(b) PPC for the charge committing the murder of Muhammad Yasin, with the direction to pay Rs. 100,000/- as compensation to the legal hears of the deceased under Section 544-A Cr.P.C. and in default of payment of compensation he was directed to undergo SI for 2 years. Abdul Sattar, the co-accused of the petitioner was acquitted from the charge of murder but was sentenced under Section 324 read with Section 337-F(i), (iii) and (v) PPC for causing injuries to Shaukat Ali, complainant and the different sentences awarded to him, were directed to run concurrently with benefit of Section 382-B Cr.P.C. The murder reference sent by the trial Court was answered in the affirmative and criminal appeal of the accused as well as the criminal revision filed by the complainant against the acquittal of Abdul Sattar under Section 302(b) PPC and for enhancement of his sentence for the remaining offences was dismissed.
The occurrence in the present case had taken place at about 7 a.m. on 10.4.1996 when Liaquat Ali, (complainant) and his brother Shaukat Ali (PW), alongwith Muhammad Younas deceased, their brother, were proceeding towards their residential house from their cattle shed and when reached at a short distance from their dara, Riasat Ali petitioner, armed with gun and Abdul Sattar, his co-accused, armed with Sota, suddenly attacked on them raising lalkara to each them lesson for filing a pre-emption suit against Rehmat Ullah. The petitioner fired successive shots as a result of which deceased was hit and he succumbed to the injuries at the spot. Shaukat Ali (PW) made an attempt to run away from the spot but he was also fired at by the petitioner and was hit on the right arm. Abdul Sattar his co-accused, inflicted him blows with Sota on different parts of his body. The motive behind the occurrence as stated, was that on Ghulam Sarwar sold land measuring 2 acres to one Rehmat Ullah Arain against which a suit for pre-emption was filed by Muhammad Yasin deceased and pending adjudication of the suit, Rehmat Ullah handed over the possession of land to Riasat Ali etc. for cultivation. The accused party was putting pressure on the deceased for withdrawal of the suit and this tussle between the parties ultimately led to the fateful occurrence.
The prosecution mainly relied upon the ocular account furnished by Liaquat Ali (PW-8), complainant of the case and Shaukat Ali (PW-9) an injured witness, the medical evidence and the motive for the occurrence. The accused in his statement under Section 342 Cr.P.C. pleaded as under:--
"The case is false and fabricated. The PWs are interested related inter-se and are inimical towards us. Liaquat complainant and Sarwar PWs were not present at the spot nor they witnessed the occurrence. I and my brother Abdul Sattar co-accused were cultivating the land of Rehmat Ullah and Muhammad Ashraf co-accused. Yaseen deceased had filed a pre-emption suit against Rehmat Ullah as Rehmat Ullah had purchased the said land from Muhammad Sarwar PW. The deceased and Shaukat Ali PW wanted that we should vacate the land and also should not water the same, so that Rehmat Ullah etc may surrender in favour of deceased. We did not agree with the inimical towards and bore grudge against us. They had threatened us many times to teach lesson for not vacating the land. Due to this grudge and enmity while armed deceased Shaukat Ali PW trespassed into our house early in the morning and made firing upon me. I hided myself in a room. My co-accused Abdul Sattar was not present there., I requested deceased and Shaukat Ali PW to vacate my house but they stated abusing and threatened me with dire consequence by feeling upon me. I was luckily saved. Finding no way out and of inmates of my house I in self-defence made single fire so the deceased and Shaukat Ali PW and then they went away. Later on Yaseen died. Abdul Sattar my co-accused was not present in the house nor he had taken part in the occurrence. He has been involved falsely being my brother and also tenant myself appeared before the IO and pleaded my innocence. I also narrated the actual story to him and had also produced my gun and its licence but he after preliminary investigation spot inspection cooked up a false story in connivance with were not present at the time of occurrence. The IO took my house, where occurrence took place but later on in order to instead of aggressed showed these recoveries from outside my house in connivance with the complainant. He wrongly showed the place of occurrence outside of my house. He investigated the case one sidedly and did not bring my detailed defence/version on the file. Many respectables and persons of the locality appeared from outside. I requested the IO to register the case against the deceased and Shaukat Ali PW for committing house trespass and firing upon me but due to the pressure of the complainant party he ignored my request. I also gave application to the higher officers but in vain as there was no body to peruse our case. I am innocent. I have committed no offence."
Learned counsel for the petitioner has contended that prosecution taking benefit of the injuries sustained by the deceased and Shaukat Ali (PW-9) introduced the story of the aggression of the accused party whereas factually the deceased and Shaukat Ali were aggressor and petitioner in exercise of his right of self-defence, fired a single shot as a result of which the deceased as well as Shaukat Ali, sustained injuries and Muhammad Yasin succumbed to the injuries. The learned counsel contended that except Shaukat Ali (PW) none else was present at the scene of occurrence and in view of the circumstances leading to the occurrence, it could be visualized that occurrence did not take place in the manner as stated by the prosecution. In the light of the motive of dispute of land, set up by the prosecution, the complainant party being interested in the possession of land having nursed grudge against the accused, committed aggression upon them and in the given facts the defence version appearing more plausible was near to the truth and was confidence inspiring. In nutshell, learned counsel argued that the circumstances the case would strongly suggest that it being a sudden occurrence, the case would squarely fall within the ambit of Section 302(c) PPC for the purpose of punishment and the conviction and sentence awarded to him under Section 302(b) PPC was not legal. In the alternate, learned counsel argued that since the possibility of suppression of material facts by the prosecution is not ruled out, therefore, the extreme penalty of death in such a case is not justified and the sentence of life imprisonment would sufficiently meet the ends of justice.
The occurrence was admitted by the petitioner by taking the plea of self-defence but perusal of record would show that the defence version was not substaintiated by any evidence, direct or circumstantial, and consequently, the concurrent finding of two Courts regarding the guilt of petitioner would not call for interference either on merits or on the question of sentence.
The parties are closely related inter se and their residential houses were situated at a close distance from the cattleshed of the complainant party, therefore, the presence of the witness with the deceased at the time of occurrence was quite natural. However, in the right of the admission of petitioner, the sole question for determination would be as to whether the deceased and Shaukat Ali were the victim of aggression or they were aggressors and the accused in exercise of right of their self-defence while resisting their aggression, caused injuries to them. The prosecution case is that the place of occurrence was in the field at some distance from the residential houses of the parties whereas according to the defence, the incident happened in the courtyard of their house. The investigating officer recovered blood-stained earth from a place at a reasonable distance from the house of accused and according to the site-plan, occurrence took place at the same place. The defence has not produced any evidence to the contrary to suggest that occurrence did not take place in the manner as claimed by the prosecution.
The learned counsel has not been able to show us from the record that the defence version was directly or indirectly supported by the prosecution evidence or the attending circumstances. The eye-witnesses were most natural witnesses and Shaukat Ali (PW-9) also sustained injuries in the occurrence at the hand of petitioner. The circumstance leading to the occurrence would not suggest that the complainant party was aggressor and accused acted in exercise of their right of private defence. The evidence is that petitioner fired two successive shots at the deceased and Shaukat Ali, who were proceeding to their houses unarmed and if the defence version is put in juxta position with the prosecution case, there would not be a remote possibility of its correctness. The deceased, as per medical evidence, sustained four fire-arm injuries on the most sensitive part of the body and these injuries would evidently suggest that the shots were fired with the intentions to kill and not to save himself from the aggression of empty handed opponents. In the light of circumstances under which the occurrence had taken place, the occurrence was certainly a pre-planed and premeditated and case against the petitioner would not fall within the ambit of Section 302(c) PPC for the purpose of punishment.
For the reasons given above we do not find any substance in this petition and the same is accordingly dismissed. Leave is refused.
(Aziz Ahmad Tarar) Leave refused.
PLJ 2006 SC 980 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J.; Muhammad Nawaz Abbasi and Hamid Ali Mirza, JJ.
IKRAM SHAH--Petitioner
versus
STATE through A.G. Pakistan and another--Respondents
Crl. P. No. 80 of 2002, decided on 17.10.2005.
(On appeal from the judgment dated 20.1.2004, passed by Peshawar High Court Peshawar in Crl. Appeal No. 5/2002)
National Accountability Bureau Ordinance, 1999 (XVIII of 1999)--
----Ss. 10(a) & 11--Constitution of Pakistan (1973), Art. 185(3)--Assets of petitioner and his dependant family members were found to be disproportionate to his known sources of income--Conviction and sentence of imprisonment coupled with confiscation of his certain properties, assailed--Quantum of proof--Valuation of landed property of petitioner on basis of valuation table issued by collector under Stamp Act 1899, being in accordance with law, was not questionable--Initial burden of proof that properties owned by accused was disproportionate to his known source of income was satisfactorily discharged by prosecution--Onus thereafter having shifted to accused to prove the contrary and give satisfactory account of holding those properties, he failed to discharge the same--Court in such case can raise presumption of guilt--No exception could be taken to finding of High Court regarding value of assets of petitioner--Factual controversy having been concluded by concurrent finding of two Courts cannot be re-opened before Supreme Court--High Courts conclusion being in accord with principle of assessing evidence laid down by Supreme Court that petitioner was holding assets disproportionate to his known sources of income was guilty of offence with which he was charged, does not warrant interference--Leave to appeal was thus, refused. [P. 985] A
Syed Zafar Abbas Zaidi, ASC for Petitioner.
Mr. Naveed Saeed, ASC and Mr. Arshad Ali Chaudhry, AOR for Respondents/NAB.
Date of hearing : 17.10.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan has been directed against the judgment dated 20.1.2004 passed by a Division Bench of Peshawar High Court, Peshawar whereby criminal appeal filed by the petitioner against his conviction and sentence awarded to him by the Accountability Court No. 3 at Peshawar, under Section 10(a) read with Section 11 of NAB Ordinance, 1999, was dismissed. The learned trial Judge, having found the petitioner guilty of the above charges, awarded him sentence of 7 years R.I. with a fine of Rs. 3 crores and also directed forfeiture of certain properties owned by him and his dependent family members. The High Court in appeal filed by the petitioner while maintaining the conviction, awarded to him under Section 10(a) read with Section 11 of NAB Ordinance, reduced his sentence to four years R.I. and fine to rupees 10 millions, vide judgment dated 11.7.2002. The petitioner being not satisfied, filed a Criminal Petition Bearing No. 343 of 2002 against his conviction and sentence before this Court, whereas his family members filed Civil Petition No. 425-P of 2002 against the judgment of the High Court by virtue of which the criminal appeal of the petitioner as well as the writ petition filed by his family members, were converted into an appeal and disposed of together vide judgment dated 13.5.2003, in the following manner:--
"Both the above mentioned petitions for leave to appeal are directed against the common judgment dated 11th of July 2002, whereby, a learned Division Bench of the Peshawar High Court maintained petitioner's conviction on the charge under Sections 9(v) of the NAB Ordinance 1997, whereas, his sentence under Section 10(a) of NAB Ordinance, 1999 was reduced from 7 years to 4 years RI, similarly, the amount of fine was also reduced from Rs. Three crores to Rs. one crore keeping in view the agricultural income derived by him from year 1950 to 2000. It was directed that the amount of fine shall be paid by the convict petitioner within a period of two months to the State, failing which, it shall be set off against the forfeited properties in terms of Section 11 of NAB Ordinance 1999. In addition thereto, petitioner was also disqualified for ten years for holding any public office and the benefit as contemplated by Section 382-B, Criminal Procedure Code was also extended to the petitioner. As regards writ petition filed by his wife and children, the same too was dismissed on the ground that petitioners therein had failed to justify the properties purchased in their names."
Petitioner was tried by an Accountability Court at Peshawar on charges under Sections 9 and 10 of the Accountability Ordinance for having acquired properties disproportionate to his known sources of income. Petitioner's defence before the trial Court was that he had acquired these properties out of the income from the produce of agricultural land owned by him. Assessment of his income was made by the trial Court, and thus it came to the conclusion that if defence put forth by petitioner is to be believed, even then, value of the property is in excess to his known sources of income.
On appeal, the High Court had re-assessed the value of the property, and had come to the conclusion that petitioner was unable to satisfactorily account for the amount of Rs. 99, 65,894/- and the same was held to be disproportionate to his legal sources of income, and therefore, the same was held to be obtained or acquired to him through corruption or corrupt practices, hence, the properties purchased by petitioner and in the name of his wife and children were ordered to be forfeited.
With the assistance of the learned counsel for the petitioner and the NAB we have carefully gone through the judgments of both the Courts below. Grievance of the petitioner as canvassed before this Court is that the assessment of the price of agricultural land was based upon a Notification issued by the Deputy Commissioner assessing the value of the property. It is stated that this Notification was issued for the first time in 1992, therefore, it could not furnish the basis for assessment of the entire period from 1985 till date, therefore, the mutation ought to have been resorted to, to which, the presumption of truth could be attached.
That the assessment of agriculture income produce was assessed on the basis of rates prevalent in 1950 and the same rate has been assessed for the produce upto year 1972 and similarly onwards from 1972 the agriculture produce has been calculated.
Prima facie, we are convinced that there is force in the contention raised on behalf of the petitioner, therefore, by converting these petitions into appeal, we allow the same and remit the cases to the Peshawar High Court while direction that its Appellate Bench shall determine the value of the property as well as that of the agriculture produce afresh in accordance with admissible evidence."
"We after taking evidence in consideration hold that Mst. Nasim Begum could prove having acquired land measuring 1 Kanal 10 Marlas at Habibullah Colony Abbottabad after death of her father and that the shares of brothers were surrendered in her favour in the said plot, she also proved having acquired land measuring 11 Kanals 11 Marlas in the year 1998 through inheritance from her brother vide Mutation No. 259 attested on 11.8.98 Ex. D.W.4/N-1. She is also held to have sold the plot of Habibullah Colony for a sum of Rs. 10,58,999/- vide Mutation Ex. P.W. 23/D-4 and sum of Rs. 9,63,000/- lying in PLS Account No. 3819-0 at National Bank of Pakistan Maneri Branch Swabi is the amount of sale consideration of the said plot, hence the same is given to her. We, therefore, find no merit in the writ petition and the same is dismissed with no order as to costs".
The grievance of the petitioner in the present petition is that the value of the properties owned by him and his family members as mentioned in the mutations of sale brought on record by the prosecution which were used as an evidence of assets of the petitioner, was much less to that of the value assessed on the basis of valuation table contained in the notification dated 7.12.1992 issued by the Collector under Stamp Act, 1899 but the High Court in preference to the direct evidence in the form of mutations, assessed the value of properties on the basis of valuation table and thereby failed to determine the value of the assets of petitioner in accordance with law. The learned counsel for the petitioner has contended that the properties subject-matter of the charge against the petitioner, were being possessed by him either before the issue of valuation table or prior to the joining of service and assessment of the value of these properties on the basis of valuation table which was prepared in the light of average prices of the land in the area without its classification to be introduced for collecting the stamp duty and other taxes on the transactions of sale, was not legal. The learned counsel placing reliance on the judgment of this Court by virtue of which the case was earlier remitted to the High Court for determination of the value of properties in question afresh, has submitted that the valuation table may not have the status of legal evidence for ascertaining the correct value of the property and consequently, the price mentioned in the mutations, would be considered the best evidence of the actual value of the properties.
The charge against the petitioner was that he purchased certain immovable properties of huge value during the period from 1987 to 1999 in addition to the maintaining of three bank accounts with the balance of Rs. 12,00,000/- and was also holding vehicles of approximate value of Rs. 3000,000 in his name. The learned trial Judge having made detail scrutiny of the evidence and assessed the value of the movable and immovable properties owned by the petitioner in his name and in the name of his dependent family members concluded as under:--
The accused Ikram Shah is the real owner of all the properties included in the reference and the ostensible owners are Benamidars.
The accused Ikram Shah proved that how's owner of ancestral gifted land measuring about 108 kanals, which generated a genuine and legal agricultural income of Rs. 21,46,000/-.
The cost of Bungalow No. 90/D-1, Hayatabad, one Pajero Jeep and one Toyota Corolla Car Model 1987 stand adjusted in this legal earning.
Rupees about 2 Lakh in this adjustment and Rs. 2,58,492/- in Bank Accounts at HBL Swabi and ABL Charsadda, totaling Rs. 4,58,400/- could not be accounted for but this amount has been ignored to cover the margin of human error in calculations and approximate assessments so that injustice is not done to accused.
The accused Ikram Shah has failed to satisfactorily account for the properties described in Table Nos. 2 to 15 above, which are held to be disproportional to the known legal sources of his income and which are presumed to have been acquired by money obtained through corruption and corrupt practices in his own name or in the names of his dependents family members/Benamidars and they are liable to forfeiture to the appropriate govt. Current value of this property for the purpose of Section 11 of NABO has been fixed as Rs. 1,52,95,137/-"
The High Court having come to the conclusion that the assets of the petitioner and his dependent family members were disproportionate to his known source, dismissed his appeal with reduction of section and the fine imposed upon him by the trial Court.
The careful examination of the record would lead to an irresistible conclusion that the value of the landed properties of the petitioner assessed by the High Court on the basis of valuation table issued by the Collector under Stamp Act, 1899, being quite in accordance with the law was not questionable. The object of the issue of valuation table was to fix the minimum value of the property in an area to restrict the suppression of actual price and evasion of the levy of the stamp duty and payment of other taxes on the transaction of sale either through mutation or registered sale-deed. The valuation table is prepared area wise on the basis of average price of the properties which is considered minimum price and with the increase of price, may vary from time to time. The price of the property mentioned in the mutation, may be relevant to determine the value of the property but it is not ipso facto an evidence of the actual value, therefore, no sanctity can be attached to such price unless it is otherwise proved through cogent and reliable evidence to be correct value of the property whereas the valuation table having been prepared on the basis of data collected in respect of the prevailing market value of the properties was to be considered more authentic and reliable evidence of actual value of the property as compared to the price mentioned in the mutation. The initial burden of proof is on the prosecution to establish the possession of properties by an accused disproportionate to his known sources of income to prove the charge of corruption and corrupt practices under NAB Ordinance 1999 and once this burden is satisfactorily discharged, onus is shifted to the accused to prove the contrary and give satisfactory account of holding the properties and in case of his failure, Court may raise the presumption of guilt. The petitioner has neither denied the ownership of the assets in his name and in the name of his family members nor has produced any cogent evidence to substantiate his plea of acquiring the assets through lawful means, therefore, no exception could be taken to the finding of the High Court regarding the value of the assets of petitioner. Learned counsel for the petitioner has not been able to satisfy us that the method of assessment of the value of properties, on the basis of valuation table was against the law or that the price mentioned in the mutation was the actual value of the properties. The assertion that petitioner had sufficient source as his income from agricultural produce, was much more to that of the income calculated, was not supported by any evidence oral or documentary and in absence of any reasonable explanation or cogent and convincing evidence to suggest that the properties owned by the petitioner were acquired by him from his known sources, the legitimate presumption would be that the assets being held by him, were ill-gotten. The contentions raised in support of this petition certainly relate to appreciation of evidence and the factual controversy having been concluded by the concurrent finding of two Courts cannot be re-opened before this Court. This is settled law that Supreme Court does not lay its hand in a case of concurrent finding based on proper appraisal of evidence unless a serious question of law arises or the findings are found palpably perverse or untenable in law. In the present case, we find that the High Court following the principles of assessing the evidence laid down by this Court has drawn a conclusion that petitioner was holding assets disproportionate to his known sources and was guilty of the offence with which he was charged. Learned counsel for the petitioner has not been able to point out any omission or misreading of evidence or violation of any principle of law in coming to the conclusion justifying interference of this Court. The scope of a petition under Article 185(3) of the Constitution is confined to the extent of substantial question of law and no such question of law has been raised to maintain this petition.
In the light of foregoing discussion, this petition being without any substance, is dismissed. Leave is refused.
(Aziz Ahmad Tarar) Leave refused.
PLJ 2006 SC 986 [Shariat Appellate Jurisdiction]
Present: Abdul Hameed Dogar, Chairman; Mian Shakirullah Jan;
raja Fayyaz Ahmed, Dr. Allama Khalid Mahmud and Dr. Rashid Ahmed Jullundhari, Members
RASHID AHMAD--Petitioner
versus
STATE--Respondent
Crl. M.A. No. 423 of 2004 & Crl. P. No. 24(s) of 2004, decided on 28.11.2005.
(On appeal from the judgment dated 15.10.2003 of the Federal Shariat Court, Lahore passed in Crl. A. No. III-L/99).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 149, 324, 364, 449 & 452--Constitution of Pakistan (1973), Art. 203-G--Conviction and sentence of death for offence of murder and sentence of imprisonment for other offences, assailed--Quantum of proof--Prosecution has brought on record truthful and convincing evidence of complainant and injured eye-witnesses--Petitioner has played pivotal role in commission of murder of deceased and has been assigned specific role of abducting relative lady of complainant on the pretext that her father had played a major role in earlier case of abduction of complainant lady--No misreading, non-reading or illegality in impugned judgment was pointed out--No interference was warranted in judgment in question, and leave to appeal was refused. [P. 990] A
Mr. Sanaullah Zahid, ASC for Petitioner.
Raja Saeed Akram, A.A.G. Punjab for State.
Date of hearing : 28.11.2005.
Judgment
Abdul Hameed Dogar, Chairman.--Petitioner Rashid Ahmed seeks leave to appeal against judgment dated 15.10.2003 passed by learned Federal Shariat Court, Karachi Registry whereby Criminal Appeal No. 1110-L of 1999, filed by condemned prisoner Amanat Ali, Cr. A. No. 111-L of 1999 filed by petitioner Rashid Ahmed, Cr. A. No. 112-L of 1999 filed by condemned prisoner Safdar Hussain Shah were dismissed and appeal of Sajid Hussain who died during pendency of appeal got abated while no appeal was filed by Razzaq Proclaimed Offender before Federal Shariat Court.
Whereafter they went to the house of Mubarak Ali and abducted Mst. Sajida.
In this case, initially Amanat Ali, Safdar Hussain, Sajid Hussain, Mehmood Akhtar, petitioner Rashid Ahmed, Abdul Razzaq were sent up to face trial. Out of whom Amanant Ali and Abdul Razzaq were sentenced to death whereas Safdar Shah, petitioner Rashid Ahmed and Sajid Hussain were sentenced to life imprisonment. Co-accused Mehmood Akhtar was not arrested as such his case was separated whereas Abdul Razzaq absconded.
Prosecution in order to establish its case examined as many as 19 witnesses.
On autopsy of deceased Nazir Ahmed Dr. Muhammad Imdad Aasi (PW-1) observed following injuries:--
"External Injuries
(i) Stab wound 3 x 2 x 11 cm on the root of left lateral side of neck just above the left clavical on the middle portion.
(ii) Stab wound 5x2x4 « cm oval shaped on the lateral side of right shoulder.
(iii) Incised wound 3 « x 1 cm at a distance.
(iv) Scratch 15 cm on the front of chest.
(v) A scratch 6 cm on the front of chest on right side, 7 cm below Injury No. 4.
(vi) Abrasion 1 x « cm on the tip of nose.
On dissection, under Injury No. 1, left carotid artery was ruptured (cut). On further dissection, thorax cavity was full of blood and left lung was punctured on back side on its upper portion. There was no other abnormality detected in other organs. The probable time between injures and death was immediate and that between death and post-mortem was 30 hours."
Dr. Ghulam Abbas Bajwa (PW-2) examined Mst. Naziran Bibi and found following injuries on her person:--
Contusion 4 x 4 cm with swelling on whole of the right side of face and both eye-lids. Contusion was just lateral to left eye involving lateral part of both eye lids.
An incised wound 2 « cm x « cm on back side right chest on inferior and if scapula. Depth of the wound was to muscle level.
Contusions 2 x 1 cm on back side of left chest blackish in colour.
Contusion 5 x 2 cm on right buttock blackish in colour.
Contusion 3 cm x 2 cm blackish in colour on left buttock.
Contusion 7 cm x 2 cm on back side of left lateral chest blackish in colour.
Blood stained earth, four empties of bullet .12 bore gun, two empties of bullet 7 MM rifle were recovered from the place of occurrence whereas from the house of Mubarik three empties cartridges of .12 bore gun were recovered, which were also taken into possession.
On 10.7.1988, co-convict Safdar Hussain Shah, co-accused Sajid Hussain Shah, (since dead) petitioner Rashid Ahmed and Mehmood Akhtar proclaimed offender were apprehended by police and from their possession abductee Mst. Sajida was recovered while she was being taken into a car.
Abdul Razzaq was arrested on 17.7.1988 and on his pointation blood stained churri was recovered. Amanat Ali was declared proclaimed offender and was arrested by Shafique ASI from Faisalabad who led to the recovery of churri from his haveli.
Petitioner in his statement under Section 342 Cr.P.C. denied the case of prosecution and adopted the statement of condemned prisoner Safdar Hussain Shah given by him under Section 342 Cr.P.C. He did not to opt to examine himself on oath as required under Section 340(2) Cr.P.C., however, he produced Muhammad Rashid (DW-1) and Haji Shukar Din (DW-2) in his defence.
On the conclusion of trial, petitioner, co-convict Safdar Hussain Shah, accused Sajid Hussain Shah, (since dead), convict Amanat Ali and Abdul Razzaq, absconded accused, were convicted and sentenced as under:--
Under Section 148 PPC -- All accused were sentenced to 2 years R.I. each;
Under Section 324/149 PPC - All the accused were sentenced to 2 years R.I. with fine of Rs. 2,000/- each or in default whereof to undergo 6 months R.I.;
Under Section 302/149 - Accused Amanat Ali and Abdul Razzaq were sentenced to death each whereas co-convict Safdar Hussain Shah, accused Sajid Hussain Shah (since dead) & petitioner Rashid Ahmed were sentenced to imprisonment for life each with fine of Rs. 20,000/- each in default whereof to undergo 2 years R.I. each;
Under Section 364 PPC - All the accused were sentenced to 10 years R.I. with fine of Rs. 5,000/- each in default whereof to further undergo 1 year R.I.;
Under Section 449 PPC - All the accused were sentenced to 10 years R.I. each with fine of Rs. 2,000/- each or in default to undergo 1 year R.I.;
Under Section 452 PPC - All the accused were sentenced to 5 years R.I. each with fine of Rs. 2,000/- or in default whereof to undergo 6 months R.I.
Benefit of Section 382-B Cr.P.C. was extended to all accused.
On appeal, the learned Federal Shariat Court maintained the conviction and sentence of petitioner and co-convict Safdar Hussain Shah but reduced the sentence of death of co-accused Amanat Ali to imprisonment for life vide impugned judgment.
We have heard Mr. Sanaullah Zahid, learned counsel for the petitioner and Raja Saeed Akram, learned AAG Punjab on behalf of State at length and have gone through the record and proceedings of the case in minute particulars.
Learned counsel for the petitioner mainly contended that incident being of dark night is unseen one. Petitioner has been falsely implicated in this case due to fact that he was friend of Safdar Hussain Shah and others. According to him, petitioner was not previously known to the complainant and eye-witnesses as he had nothing to do with the affairs of the co-accused in the earlier case. In such circumstances, he prayed for reduction of the sentence of the petitioner particularly in view of compromise arrived at between the petitioner and the legal heirs of deceased.
Learned counsel appearing on behalf of State vehemently opposed the above contentions and while supporting the impugned judgment contended that partial compromise cannot be allowed.
In order to establish its case prosecution has brought on record truthful and convincing evidence of complainant Mst. Riffat Bibi, injured/eyewitness Naziran Bibi, and abductee Sajida Bibi. It has been proved that petitioner has played pivotal role in the commission of murder of deceased Nazir Ahmed by forming unlawful assembly and with common object entered into the house of deceased. He has been assigned specific role of kidnaping Sajida Bibi daughter of Mubarik on the pretext that Mubarik had played a major role in the early case of abduction of Mst. Riffat Bibi at the hands of Amanat Ali accused. Mst. Sajida victim while narrating the incident has clearly deposed at the trial that while she was being carried in the car after abduction, was recovered from that car and petitioner and other accused were also arrested by police from the car. Irrespective of above, learned counsel could not refer any misreading, non-reading or illegality in the impugned judgment warranting interference by this Court.
Accordingly, the petition being devoid of force is dismissed and leave to appeal refused.
Since it is not a case of simplicitor murder but is coupled with kidnapping of Mst. Sajida Bibi, which being an offence against society is not compoundable. Hence, compromise application is also dismissed.
(Aziz Ahmad Tarar) Leave refused.
PLJ 2006 SC 990 [Shariat Appellate Jurisdiction]
Present: Abdul Hameed Dogar, Chairman; Mian Shakirullah Jan;
Raja Fayyaz Ahmad; Dr. Allama Khalid Mehmood and Dr. Rashid Ahmad Jullundhari, Members
MUHAMMAD SHARIF--Appellant
versus
STATE--Respondent
Crl. A. No. 28(S) of 2003, decided on 16.12.2005.
(On appeal from the judgment dated 5.3.2002 of the Federal Shariat Court, Islamabad passed in J. Crl. A. No. 219-I/2001)
(i) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----S. 16--Constitution of Pakistan (1973), Art. 203-G--Appellant charged with under Ss. 11 & 10(3) of the Ordinance of 1979, while he was sentenced under Ss. 16 & 10(2) of the Ordinance of 1979--Legality--No embargo in placed in convicting and sentencing appellant for an offence other than charged with in terms of S. 237 Cr.P.C. [P. 992] A
(ii) Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979)--
----Ss. 16 & 10(2)--Conviction and sentence of imprisonment of appellant for abduction and committing of zina--Legality--Quantum of proof--Occurrence had admitted taken place--Victim lady was sister of wife of appellant and she was enticed away by him and remained with him for a period of about 6 months till she died due to miscarriage of pre-mature child--Ocular version furnished by witnesses who saw appellant alongwith deceased lady with boarding a bus, implicates appellant with commission of offence--Courts below have appraised evidence furnished by prosecution fully and rightly convicted appellant--Courts below were correct in holding that such immoral act of appellant has ruined entire family of his in laws--No justification was pointed out to interfere with impugned judgment--Appeal being devoid of merit was dismissed. [P. 993] B
Raja Saeed Akram, A.A.G. Punjab for State.
Date of hearing: 16.12.2005.
Judgment
Abdul Hameed Dogar, J.--This Criminal Appeal is directed against the judgment dated 5.3.2002 of the learned Federal Shariat Court, Islamabad passed in Jail Criminal Appeal No. 219-I of 2001 filed by appellant Muhammad Sharif, whereby his conviction under Section 16 of the Offences of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as "the Ordinance' and sentence to undergo R.I. for seven years with fine of Rs. Five thousand or in default to undergo S.I. for three months and conviction under Section 10(2) of the Ordinance and sentence to undergo ten years R.I. with fine of Rs. Five thousand or in default to undergo S.I. for three months awarded by the learned Sessions Judge Pakpattan Sharif vide judgment dated 12.10.2001 were maintained. The sentences were ordered to run consecutively by the trial Court, which were also maintained. However, he was extended benefit of Section 382-B Cr.P.C. by the trial Court, which was also maintained.
Leave to appeal has been granted by this Court by means of order dated 24.4.2003 to reappraise the evidence as to whether the convictions and sentences passed are in accordance with the principles laid down by this Court for appreciation of evidence.
The appellant was charged that he on 21.9.1999 abducted Mst. Naseem Bibi for the purpose of zina thereby committed an offence under Section 11 of the Ordinance and further that after abduction he committed zina-bil-jabr with her thereby committed an offence under Section 10(3) of the Ordinance.
The appellant is said to have abducted his sister-in-law Mst. Naseem Bibi on 21.9.1999 when PW-5 Muhammad Yasin and PW-6 Mokha had seen them. The incident was confined to their family, therefore, efforts were made through punchayat to get back Mst. Naseem Bibi but when she was not returned, the complainant lodged report at police station Malka Hans. The trial Court convicted the appellant on the testimony of PW-4 Liaqat Ali coupled with the statements of PW-5 Muhammad Yasin and PW-6 Mokha. Besides on the report of one Haji Muhammad Bux proceedings were initiated under Section 174 Cr.P.C. against the petitioner after the death of Mst. Naseem Bibi, victim due to miscarriage of the premature child, wherein the victim was named as wife of the appellant.
The appellant in the jail petition has submitted that there was no evidence on record to connect him with the commission of crime and further that PWs were interested and inimical to him. He further submitted that the learned Federal Shariat Court and the trial Court have not appreciated the evidence in the light of principles laid down by this Court for safe administration of criminal justice.
We have heard Raja Saeed Akram, learned AAG, Punjab on behalf of the State and have perused the record with his assistance.
I may be observed that appellant was charged under Section 11 and Section 10(3) of the Ordinance, whereas he was convicted and sentenced under Sections 16 and 10(2) of the Ordinance. It is true that there is no embargo in convicting and sentencing the appellant for an offence other than charged with, as provided under Section 237 of the Code of Criminal Procedure, however Sections 16 and 10(2) of the Ordinance are reproduced as under:--
"16. Enticing or taking away or detaining with criminal intent a woman. Whoever takes entices away any woman with intent that she may have illicit inter-course with any person, or conceals or detains with intent any woman, shall be punished with imprisonment of either description for a terms which may extend to seven years and with whipping not exceeding thirty stripes, and shall also be liable to fine."
"10.............
(2) Whoever commits zina liable to tazir shall be punished with rigorous imprisonment for a terms which may extend to ten years and with whipping numbering thirty stripes, and shall also be liable to fine."
PW-4 Liaqat Ali has deposed that the appellant had developed illicit relations with his younger sister Mst. Naseem Bibi, who was a virgin and when the elders were not in the house, the appellant took away Mst. Naseem Bibi with him for illicit purpose and further that appellant was seen taking away Mst. Naseem Bibi by PWs Muhammad Yasin and Mokha. PW-5 Muhammad Yasin has deposed that when he was standing alongwith Mokha at Pakpattan bus stand he saw the appellant alongwith Mst. Naseem Bibi (since dead) boarding a bus for Bahawalnagar. PW-6 Mokha has corroborated what has been said by PW-5 Muhammad Yasin, PW-7 Muhammad Asghar deposed that he received information that Mst. Naseem Bibi has died due to her miscarriage in Bahawalnagar. PW-9 Muhammad Nausherwan, SI has deposed that complainant has submitted an application Ex. P.B. for registration of a case against the appellant. The appellant in his statement under Section 342 Cr.P.C. has denied the commission of offence and has further stated that abortion was made by the mother of Mst. Naseem Bibi herself and that he has neither caused any miscarriage, nor has committed zina with her, so also he denied to have abducted the deceased Mst. Naseem Bibi.
Admittedly, it is not disputed that the occurrence had taken place. It is also an admitted fact that Mst. Naseem Bibi deceased was sister of wife of the appellant and was enticed away on 21.9.1999 by him and she remained with him till her death on 1.4.2000. There is also no denial of the fact that she died due to miscarriage of premature child, which too occurred during the period she was residing with the appellant and the above act was done in order to conceal the fact of her being pregnant. Ocular version furnished by PWs Muhammad Yasin and Mokha, that they saw the appellant alongwith Mst. Naseem Bibi, while boarding a bus going to Bahawalnagar, too implicate the appellant with the commission of offence. The two Courts below have apprised the evidence furnished by the prosecution fully and rightly convicted the appellant. It has rightly been held by the two Courts below that due to such an immoral act of appellant, the entire family of his in-laws was ruined. Accordingly, we do not find any justification to interfere with the impugned judgment, which is maintained. The appeal being devoid of force is dismissed.
(Aziz Ahmad Tarar) Appeal dismissed.
PLJ 2006 SC 994 [Appellate Jurisdiction]
Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ.
MUHAMMAD LATIF--Petitioner
versus
STATE--Respondent
Jail Petition No. 45 of 2005, decided on 30.12.2005.
(On appeal from the judgment of Lahore High Court, Lahore, dated 19.10.2004 passed in MR 311/2000 and Cr.A. 559/2000)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction & sentence recorded against petitioner, assailed--Appreciation of evidence--Determination of--Whether occurrence had taken place in manner as claimed by the prosecution or as stated in the defence version--Held: Accused armed with rifle, having prepared himself went to the place of occurrence with intention to commit the crime and thus was not a sudden occurrence as pleaded in the defence version--Conviction and sentence of life imprisonment was upheld. [P. 996] A
Mr. Tariq Bilal, ASC for Petitioner.
Sardar Muhammad Siddique, ASC for State.
Date of hearing : 30.12.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This jail petition is directed against the judgment 19.10.2004 passed by Lahore High Court, Lahore in Criminal Appeal No. 559 of 2000 filed by the petitioner against his conviction and sentence of death awarded to him by learned Additional Sessions Judge, Faisalabad, under Section 302(b) PPC whereby the appeal was dismissed with conversion of sentence of death into imprisonment for life with direction to pay Rs. 1,00,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C.
"About five day before the occurrence, the deceased Allah Ditta had committed unnatural act with me in the watercourse in which occurrence tool place and I did not talk about this fact with anybody on account of shame. A day before the occurrence the deceased again caught hold of me for the above purpose and on the pretext of my sickness I got myself released from the deceased. On the evening of occurrence, I had gone armed with rifle to save myself from the assault of deceased Allah Ditta. Shortly before the occurrence the deceased caught me and put Japha to satisfy his unnatural lust and thereupon I fired shot from the rifle at the deceased."
Learned counsel for the petitioner has contended that the occurrence had taken place after sunset at a lonely place at a reasonable distance from the village Abadi and the circumstances leading to the incident would suggest that it was an unseen occurrence and no one except the petitioner and deceased, was present at the spot. Learned counsel argued that the admission of petitioner regarding firing at the deceased in exercise of his right of self-defence to resist the evil design of the deceased of committing sodomy with him, would strongly suggest that the prosecution version relating to the motive and pre-mediation was not based on truth and the case against the petitioner would squarely fall within the ambit of Section 302(c) PPC for the purpose of punishment.
Learned counsel for the State, on the other hand, has contended that the occurrence had taken place at a shot distance from the residence of the deceased when he alongwith the petitioner and the witnesses were proceeding to the dara of Muhammad Hanif, father of petitioner and submitted that the eye-witnesses who were entirely independent, truthful and confidence inspiring, have fully supported the prosecution case as contained in the First Information Report lodged immediately after the occurrence. The learned counsel added that in the light of unimpeachable character of ocular account duly supported by the medical evidence and attending circumstances, the defence plea taken by the petitioner being not supported by any evidence, direct or circumstantial, would not be given any weight and mere admission of the petitioner of firing at the deceased would not be sufficient to discard the prosecution evidence and believe the defence version.
In the light of admission of the petitioner, the only question requiring determination would be whether the occurrence had taken place in the manner as claimed by the prosecution or as stated in the defence version. The examination of the two versions in the light of evidence and the circumstances leading to the occurrence would show that the petitioner armed with rifle, having prepared himself went to the place of occurrence with the intention to commit the crime and thus it was not a sudden occurrence as pleaded in the defence version. We having considered the defence plea of self-defence in the light of prosecution evidence, have not been able to find out any substance in the contentions raised by the learned counsel in support of this petition. Taking the question of sentence, we find that learned trial Judge having found the petitioner guilty of the charge of murder, awarded him maximum sentence of death provided under Section 302(b) PPC whereas the learned Judges in the High Court being of the view that the petitioner under the influence and command of his father committed the offence, reduced his sentence from death to imprisonment for life and we would take no exception to the judgment of the High Court.
In the light of forgoing reasons, we find no merit in this petition and the same is accordingly dismissed. Leave is refused.
(Javed Rasool) Leave refused.
PLJ 2006 SC 997 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ.
AMEER NAWAZ--Petitioner
versus
STATE--Respondent
Jail Petition No. 177 of 2004, decided on 9.3.2006.
(On appeal from the judgment dated 24.2.2004 of the Lahore High Court, Lahore passed in Cr.A. No. 145-J/02)
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction & sentence of life-imprisonment recorded against petitioner, assailed--Recovery of 80 Kg charas--Appreciation of evidence--Held: No misreading, non-reading or any glaring irregularity was found in the impugned judgment--Prosecution fully established its case with evidence of PWs and positive report of chemical examiner--Accused failed to prove fabricated recoveries or his false implication--Appeal refused.
[Pp. 998 & 999] A
Malik Muhammad Kabir, ASC for Petitioner.
Mr. Muhammad Aslam Malik, ASC for State.
Date of hearing : 9.3.2006.
Order
Abdul Hameed Dogar, J.--This petition is directed against judgment dated 24.2.2004 passed by learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeal No. 145-J of 2002 filed by petitioner Ameer Nawaz was dismissed, the conviction and sentence under Section 9(c) of the Control of Narcotic Substances Act, 1997 to imprisonment for life with fine of Rs. 200,000/- or in default thereof six months S.I. awarded by the trial Court was maintained. He was, however, granted benefit of Section 382-B Cr.P.C. towards computation of sentence.
Precisely, the case of prosecution against petitioner is that on 7.4.2000 at about 5.40 a.m. petitioner was apprehended alongwith Car No. STH-1639 by raiding party consisting of Lt. Col. Manzar Akbar, Joint Director, Anti Narcotics Force, Lahore and others near Shobra Hotel, Lahore. From the secret cavities of car 80 packets of charas each weighing one kilogram were recovered. One gram of charas was separated from each packet which were made into single parcel as sample for the purpose of chemical examination and the rest was put in two bags and were sealed. From personal search of petitioner Rs. 4225 Pak rupees, golden ring, I.D. Card, photo copy of I.D. Card, driving license and registration book of car were recovered and such recovery memo was prepared.
After usual investigation, petitioner was sent up to face trial whereas his co-accused namely, Shakeel and Raaz Muhammad were declared as proclaimed offender.
At trial in order to establish its case prosecution examined Muhammad Sarwar, ASI (PW-1), Abdul Ghafoor, Constable (PW-2), Amir Hussain Toor, Constable (PW-3) and Muhammad Riaz Sumro (PW-4). Learned prosecutor also produced chemical examiner's report which was positive in nature.
In his statement recorded under Section 342 Cr.P.C. petitioner denied the allegation and claimed that he was arrested from the room of Shobra Hotel where he was staying with his family. While replying to Question No. 6 he replied as under:
"I used to write letters against the officials of ANF to their higher authorities due to that in revenge the ANF officers trapped me in this case falsely. The real culprits were let off and I was substituted. On 7.4.2000 I was staying in a room of Shobra Hotel, Lahore with my wife and children wherefrom I was arrested. I was not capable of driving any type of vehicle nor I have any Driving License. The Driving License produced is fabricated document. The PWs deposed against me because they were subordinate to ANF officials and they made statements against me on oath under the influence and pressure of their Higher officers. I am a Gazetted Officer and was posted at Accountant General's Office at Peshawar in Grade-17. I was heart patient and had come to Lahore with my family for my check up from Punjab Institute of Cardiology. I am innocent in this case."
He did not opt to appear as his own witness under Section 340(2) Cr.P.C. but tendered in evidence photocopies of medical reports of hospital in his defence.
On conclusion of trial, petitioner was convicted and sentenced as stated above.
We have heard Malik M. Kabir, learned counsel for the petitioner and Mr. M. Aslam Malik, learned ASC appearing on behalf of State at length and have gone through the record and proceedings of the case in minute particulars.
Though argued at length yet learned counsel for the petitioner could not refer any misreading, non-appraisal of evidence or any glaring irregularity in the impugned judgment. Prosecution has fully established its case by bringing on record the evidence of above said PWs and positive report of chemical examiner. Petitioner has failed to prove the fabricated recoveries or false implication. Accordingly, the petition being devoid of force is dismissed and leave to appeal refused.
(Javed Rasool) Appeal refused.
PLJ 2006 SC 999 [Appellate Jurisdiction]
Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ.
SAJID--Petitioner
versus
STATE--Respondent
Jail Petition No. 47 of 2005, decided on 30.12.2005.
(On appeal from the judgment of Lahore High Court, Lahore, dated 8.4.2004 passed in Cr. A. 125-J/2001)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973, Art. 185--Conviction & sentence of life imprisonment--Appreciation of evidence--Held: Occurrence took place in broad day light in the house of deceased--Statement of PW was recorded by police within one and half hour--Eye witnesses being inmates of the house were natural witnesses--As they had no enmity or malice against accused, so their deposition was quite natural & truthful notwithstanding the minor discrepancies & contradictions in the prosecution evidence--Credibility of the testimony of eye witnesses duly corroborated by medical evidence--Motive & attending circumstances were of unimpeachable character--No misreading, non-reading or material defect found in the concurrent findings--Conviction and sentence maintained. [Pp. 1001 & 1002] A & B
Mr. Zulfiqar Ahmad Bhutta, ASC for Petitioner.
Sheikh Mahmood Ahmad, ASC for State.
Date of hearing : 30.12.2005.
Judgment
Muhammad Nawaz Abbasi, J.--The petitioner, through the instant jail petition, has sought leave to appeal against the judgment, dated 8.4.2004 passed by the Lahore High Court whereby the appeal filed by the petitioner against the conviction and sentence of life imprisonment awarded to him by the trial Court under Section 302(b) PPC with a fine of Rs. 20,000/- to be paid to the legal heirs of deceased as compensation under Section 544-A Cr.P.C. and sentence of R.I. for 5 years with a fine of Rs. 10,000/- under Section 452 PPC or in default of payment of fine to suffer R.I. for six months, was dismissed with direction that both the sentences would run concurrently with benefit of Section 382-B, Cr.P.C.
The brief facts in the background giving rise to this petition are that Muhammad Feroz, husband of Bashiran Bibi, deceased, lodged a report at the concerned police station stating therein that on 4.4.1999 Mst. Bashiran Bibi, restrained Sajid (petitioner) and Muhammad Sabir, his co-accused from visiting her house as they did not enjoy good reputation whereupon the accused felt insulted and exchanged abuses with the deceased. The complainant, on the next day of the incident, visited the father of petitioner at his house and lodged protest to him regarding the incident. Later on the same day when the complainant alongwith Alam Ali and Allah Yar, PWs, were sitting in the courtyard of his house when Mst. Bashiran Bibi on the knock at the door, opened the door, Sajid, armed with pistol and Sabir Ali, empty handed, entered into the house. Sabir Ali raised lalkara of teaching lesson to Mst. Bashiran Bibi for abusing them whereupon Sajid fired two successive shots at her and she sustaining the injuries on her right flank and left elbow fell on the ground. The complainant with the help of PWs, took her to the hospital for medical aid but she succumbed to the injuries.
Talib Hussain, S.I./SHO after recording the statement of complainant in the hospital and preparing the injury statement (Ex. PA ) as well as the inquest report (Ex. PB) of the deceased, despatched the dead body for post-mortem examination and therefore during the spot inspection, took into possession blood-stained earth and crime empty from the courtyard of the house of complainant. The Investigating Officer on the arrest of petitioner, recovered pistol .30-bore alongwith two live bullets at his instance and after completion of the investigation, submitted the challan. The prosecution mainly placed reliance on the ocular account furnished by Muhammad Feroz (PW-5) and Allah Yar (PW-6) in addition to the motive and the medical evidence. The postmortem examination of the deceased, conducted by lady doctor Shamim Akhtar (PW-1), revealed the following injury on her body:
"A fire-arm lacerated entrance wound 1x1 cm in the right posterior axillary line 29 cm below the shoulder bridge, directed leftward and forward, passed through and through from the chest cavity after damaging the lungs, heart and exited on the left outer part of breast causing exit wound of 1.5 x 1.5 cm after exit then touching the inner side of left arm at 2 places".
"I have been falsely involved in this case due to enmity. The PWs are related inter se as well as with the deceased. They have falsely deposed against me and my co-accused. I was declared innocent by the police. Mst. Bashiran deceased was a lady of easy virtues".
Learned counsel for the petitioner has contended that it was a blind murder which took place before the day break in the dark and petitioner and his co-accused were substituted by changing the time of occurrence in the FIR to make it a daylight occurrence which fact would be supported by the contents of digested food in the stomach of deceased. Learned counsel next contended that according to the prosecution version, the deceased was fired at from close distance but there was no blackening around the wound which would suggest that shot was fired from a reasonable distance and assailant was not identifiable. In nutshell the argument of the learned counsel was that the ocular account was in conflict to the medical evidence and in absence of any other independent corroborative evidence, it was not safe to place reliance on the ocular account of related and interested witnesses for conviction on the capital charge.
Learned counsel for State on the other hand, has vehemently contended that the occurrence having taken place in the courtyard of the house of deceased in the broad-day-light, was witnessed by the inmate of the house who are most natural witnesses and their deposition being free from any material contradiction or discrepancy was confidence inspiring and alone would be sufficient to prove the charge.
The occurrence in the present case had taken place 7.30 am on 5th of April 1999 in the broad day light in the courtyard of the house of deceased and within one and a half hour, Talib Hussain, SI, recorded the statement Muhammad Feroz (PW-5) in District Headquarter Hospital, Pakpattan on the basis of which, case was registered. The eye-witnesses being the inmates of the house, were most natural witnesses of the occurrence and notwithstanding their relationship with the deceased, they having no enmity or malice against the petitioner, were quite independent and their deposition has been found quite natural and truthful, therefore, notwithstanding the minor discrepancies and contradictions in the prosecution evidence, the credibility of the testimony of the eye-witnesses duly corroborated by the medical evidence, motive and attending circumstances would be of unimpeachable character, therefore, the contention of learned counsel that digested food in the stomach of deceased would suggest the time of occurrence much before the day break has no substance as the people in the village normally take their breakfast early in the morning and process of digestion is immediately started, therefore digested food in the stomach of deceased would not be suggestive of the happening of the incident before the deceased had taken her breakfast. The contention of the learned counsel that the absence of blackening around the injuries would indicate that shot was fired from a reasonable distance and the assailant would not be identifiable, also has no substance. The eye-witnesses were not expected to measure the exact distance and in that any discrepancy in describing the distance, would be of no significance to doubt their credibility. We having heard the learned counsel for the parties and perused the record with their assistance have not been able to find out any misreading or non-reading of evidence or material defect in the concurrent finding of the two Courts, qua the guilty of the petitioner to interfere in the matter.
In the light of foregoing discussion we find no substance in this petition and the same is accordingly, dismissed. Leave is refused.
(Javed Rasool) Leave refused.
PLJ 2006 SC 1002 [Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ.
Mst. ZAHIDA BIBI--Petitioner
versus
STATE--Respondent
Jail Petition No. 182 of 2004, decided on 19.7.2005.
(On appeal from the judgment dated 15.8.2002 of the Lahore High Court, Lahore passed in Crl. Appeal No. 921 of 2001)
(i) Dying Declaration--
----Dying declaration or a statement of a person without the test of cross-examination is a weak kind of evidence--Its credibility depends upon the authenticity of record and the circumstances under which it is recorded--So its believing and non-believing is a matter of judgment but it is dangerous to accept it without careful scrutiny regarding its truthfulness. [P. 1008] D
(ii) Dying Declaration--
----Dying declaration like the statement of an interested witness requires close scrutiny and is not to be believed merely for the reason that the dying person is not expected to tell lie. [P. 1008] E
(iii) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302/34--Constitution of Pakistan, 1973, Art. 185(3)--Conviction & sentence of imprisonment for life--Appreciation of evidence--Dying declaration--Held: Allegation of that accused lady threw burning kerosene oil on the complainant who died in hospital--Presence of sole eye-witness was not satisfactorily explained--Statement of deceased was not recorded by S.I. in presence of any doctor or other hospital staff--It could not be considered as dying declaration and so could not be relied upon and treated as an admissible evidence for conviction on capital charge--Convcition & sentence set aside. [Pp. 1007, 1008 & 1009] A, B, C & F
Mr. Zia-ul-Qamar Bhatti, ASC with Mr. A.H. Masood, AOR (absent) for Petitioner.
Ms. Afshan Ghazanfar, A.A.G. Punjab for State.
Date of hearing : 19.7.2005.
Judgment
M. Javed Buttar, J.--The petitioner Mst. Zahida Bibi, the co-accused Muhammad Saleem (the petitioner's husband) and Mst. Zubaida Bibi (the petitioner's sister) were tried by the Additional Sessions Judge, Lahore in case FIR No. 69/1999 dated 22.4.1999 registered at Police Station Garhi Shahu, Lahore for the offence under Section 324/34 PPC, on the statement of the complainant/Mst. Abida Bibi (the deceased), wife of Muhammad Nadeem. On the death of the complainant the offence was changed to Section 302/34 PPC. The trial Court vide its judgment dated 30.5.2001, while acquitting the co-accused Muhammad Saleem, by extending him the benefit of doubt, convicted the petitioner and Mst. Zubaida Bibi under Section 302-B/34 PPC and sentenced them to imprisonment for life and also directed them to pay Rs. 50,000/- each as compensation to the legal heirs of the deceased under Section 544-A, Cr.P.C. and in default of the payment of the same, to further undergo six months S.I. each. They were, however, extended the benefit of Section 382-B Cr.P.C. The co-convict Mst. Zubaida was on bail. She was directed to be taken into custody. The joint appeal of the petitioner and Mst. Zubaida (Criminal Appeal No. 921/2001) was dismissed by a learned Single Judge of Lahore High Court vide his judgment dated 15.8.2002. At the announcement of the order, both the appellants were on bail and were directed to be taken into custody to serve out their sentence. Only the petitioner has come forward through this Jail Petition, seeking leave to appeal against the judgment of the High Court. We have been informed that the co-convict Mst. Zubaida Bibi, after dismissal of her appeal, was not taken into custody and she has not filed any petition before this Court.
The relevant facts as alleged by the complainant, in her complaint are that she was residing on the ground floor of the house at the address mentioned in the complaint, while the accused Muhammad Saleem, her husband's brother (the complainant's Jaith) and his wife Mst. Zahida Bibi, the petitioner, resided on the first floor and the parties used to quarrel with each other as the petitioner used to throw filth in her house on the ground floor and on the day of occurrence when her husband Muhammad Nadeem, as usual, had left for his shop, Muhammad Saleem and the petitioner called the co-accused Mst. Zubaida, sister of the petitioner, to their house and at about 1.00 p.m. when she was cooking food on a Kerosene Oil Stove, all the three accused came down stairs and Muhammad Saleem asked his wife, the petitioner and the petitioner's sister Mst. Zubaida Bibi to throw the burning oil stove on her, where upon the petitioner and here sister Mst. Zubaida threw the burning stove on her, her cloths caught fire and she was badly burnt. It was further alleged that on her hue and cry, her neighbour Mst. Khurshid Bibi wife of Ashiq and other persons of the locality got attracted and Muhammad Saleem (the acquitted accused) and Mst. Khurshid Bibi brought her to the Emergency Ward of the Mayo Hospital, Lahore and got her admitted there. The complainant concluded that Muhammad Saleem, his wife the petitioner and the petitioner's sister Mst. Zubaida with the connivance of each other had thrown the burning stove on her and had burnt her with the common intention to kill her.
On receipt of the information in regard to the occurrence, SI Bashir Hussain (PW-11), reached the Emergency Ward of the Mayo Hospital, obtained a certificate from the doctor in regard to the fitness of the complainant to make a statement, recorded the complaint (detail above) lodged by the complainant at 5.55 p.m. on 22.4.1999 and sent the same to the Police Station through Constable Muhammad Arif for the registration of the formal FIR which was recorded by ASI Javed Iqbal on the same day, at 6.25 p.m.
In the investigation, all the accused were found guilty and challaned to face the trial. The accused pleaded not guilty to the charge framed by the trial Court for the offence under Section 302/34 PPC and claimed trial.
The prosecution produced 12 witnesses. PW-1 Mst. Munaza Arshad deposed that on the day of occurrence when she came to the house of her sister-in-law i.e. the complainant, at about 1.00 p.m., a boy was also standing at the main door, they heard the noise of quarrelling from inside the house, they entered the house and saw that the acquitted co-accused Saleem was asking his wife Mst. Zahida, the petitioner and his sister-in-law Mst. Zubaida to burn the complainant with Kerosene Oil and simultaneously both the convicts threw burning Kerosene Oil Stove on the complainant and at that time Saleem also caught hold of the complainant so that she may burn completely. She further stated that she and the other boy namely Shahzad (PW-2) tried to rescue the complainant but all the three accused pushed them away, then they went out side in the street and raised hue and cry, which attracted the neighbourers and thereafter Saleem accused brought a Motor Cycle Riksha in which Saleem and Mst. Khurshid Bibi took the complainant Mst. Abida to the hospital. The statement of this witness was recorded by police on 12.5.1999.
PW-2 Shahzad Hussain deposed to the same effect as by PW-1 Mst. Munaza Arshid. He further deposed that Saleem's hands were also burnt. PW-3 Muhammad Kashif Motor Cycle Riksha driver stated that the deceased was taken to the hospital by Muhammad Saleem and another woman in his Motor Cycle Riksha, which was arranged by Muhammad Saleem and on the way to the hospital Mst. Abida deceased stated that she was burnt by Saleem, Zahida and Zubaida and at that time the hands of Saleem were also burned. The statement of this witness was recorded by the Investigating Officer on 12.5.1999. PW-4 Arshad Mehmood, the brother of the complainant deposed that the complainant was in her senses in the Emergency Ward and had told him that the petitioner and her sister Mst. Zubaida at the instigation of the petitioner's husband Saleem had thrown the burning stove of Kerosene Oil on her by which she received the injuries. PW-5 Dr. Muhammad Abaid Ullah examined the complainant on 22.4.1991 at 2.00/2.30 p.m and found 70% burning of the body involving face, both upper limbs, front and back of chest, front and back of abdomen and both thighs partially and in his opinion the burning was due to Kerosene Oil fire. It was stated by him in the cross-examination that PW-6 took the dead body to mortuary. I do not remember that if any other person other then Saleem accused was also present with the injured. It is correct according to the record only Saleem accused was present with the injured. I did not record a separate statement of the injured. The injured was brought to the emergency by accused Saleem and not by the police.
PW-7 Dr. Iftikhar Ahmad conducted the autopsy on the dead body of Mst. Abida on 23.4.1999 at 9.45 p.m. and gave the details of burns which in his opinion, were Anti-mortem and caused by dry flame. The cause of death was stated to be 80% burns and its complications.
PW-8 Nazir Ahmad S.I. arrested both the female accused on 8.6.1999.
PW-9 Javed Iqbal ASI, drafted the formal FIR.
PW-10 Dr. Muhammad Absar Sarati deposed that on 22.4.1999 while he was posted as House Surgeon at South Surgical Ward Mayo Hospital, Lahore, Bashir Hussain S.I. (PW-11) presented before him an application (Ex. PG) for recording the statement of complainant Mst. Abida, upon which he gave a note (Exh. PG/1) that Mst. Abida was fit to make a statement which was in his hand writing and signed by him.
PW-11 Bashir Hussain SI/I.O deposed that on receiving of a report, he reached Emergency Ward of Mayo Hospital, obtained permission from the doctor to record statement of Mst. Abida through application Ex. PG, recorded the statement of Mst. Abida (Ex. PF), which was thumb marked by Abida (Ex. PF/2) dispatched the complaint (Ex. PF) for the formal registration of the FIR, went to the place of occurrence, inspected the same, took into possession Kerosene Oil Stove (P1), prepared a site-plan (Ex. PJ), on the death of Abida on 23.4.1999, prepared inquest report (Ex. PD), arrested the accused Saleem, prepared the injury statement of Muhammad Saleem accused (Ex. PK), got prepared the site-plan from the draftsman on 7.5.1999 and thereafter the investigation was transferred from him to ASP Mr. Sultan Ahmad Chaudhry (PW-12).
PW-12 Sultan Ahmad Chaudhry, ASP stated that on 12.5.1999 he recorded the statements of three P.Ws namely Mst. Munaza, Kashif and Shahzad, after completing the investigation the case file was sent by him to the local police on 5.7.1999. CW-Younas Bukhari draftsman identified the hand writing and signatures of the draftsman Imran Bukhari who had prepared the site-plans (Ex. PE and PE/1) and had left for abroad.
All the three accused in their statements under Section 342 Cr.P.C. denied the allegations and alleged that Mst. Abida had committed suicide. They did not opt to appear as their own witnesses under Section 340(2) Cr.P.C. However, they produced three defence witnesses namely, Mst. Khurshid Bibi (DW.1), Mst. Zainab Bibi (DW-2) and Muhammad Azam (PW-3).
DW-1 Mst. Khurshid Bibi deposed that on the day of occurrence, after hearing noise, when she reached the house of the complainant, she saw that complainant had caught fire and the petitioner and her husband Saleem were trying to put it off, she, petitioner, Saleem and the driver of the car, took her to the hospital in the vehicle provided by Mst. Zainab, she remained in the hospital from 2.00 p.m. to 7.00 p.m. and that on the way to the hospital and in the hospital, Abida did not make any statement in her presence.
DW-2 Mst. Zainab Bibi stated that on the day of occurrence when she was called by Mst. Uzma daughter of Mst. Khurshid Bibi, she went to the house of Abida Bibi and saw that the clothes of Abida Bibi were burning and the Saleem accused was putting off the fire, whereupon she called her driver Azam alias Puppo (DW-3), who brought her car, in which Abida was carried to the hospital by Saleem accused, who was sitting on the front seat and that on the back seat of the car Mst. Khurshid Bibi and the petitioner were sitting, keeping Abida Bibi in the center. She further stated that in her presence Abida did not make any statement against any one and that the accused persons in this case were innocent. DW-3 Muhammad Azam alias Puppo supported DW-2 Mst. Zainab Bibi. He further stated that on the way to the hospital, the complainant/deceased did not make any statement against any one.
We have heard the learned counsel for the parties and have seen the relevant record.
It is submitted by the learned counsel for the petitioner that the prosecution has failed to prove its case against the accused beyond reasonable doubt, there is no eye-witness of the occurrence, the case of the prosecution is based on the sole statement of the deceased which cannot be considered as a dying declaration because it had not been verified by the doctor or the Magistrate, the statement of the alleged eye-witnesses were recorded after about 20 days of the alleged occurrence and their names are not mentioned in the F.I.R. therefore, their evidence cannot be accepted under the law, there is delay of 5 hours in lodging the F.I.R. and the distance between the place of occurrence and the police station is only one kilometer the site-plan of the place of occurrence (Ex.PE), was prepared after 7 days of the date of occurrence. The Kerosene Oil Stove (P-1) was produced in Court without seal and Mst. Kurshid Bibi, an eye-witness of the occurrence, was not examined by the prosecution rather she was produced by the accused in support of defence version. Learned counsel pointing out the contradictions and discrepancies in the prosecution evidence, asserted that prosecution has not been able to bring on record any independent and reliable evidence providing corroboration to the dying declaration whereas, the correctness of the defence version was evident from the circumstances under which the incident had taken place. The learned counsel added that the claim of Muhammad Arshid (PW-4), real brother of the deceased, of his present at the time of recording the statement of the deceased by the investigation officer, would create serious doubt qua the credibility of dying declaration of the deceased and similarly motive set up by the prosecution was not plausible.
The learned Assistant Advocate-General, Punjab supported the impugned judgment with the assertion that the dying declaration made by the deceased in the hospital was seeking sample corroboration from independent source and being truthful and confidence inspiring, alone would be sufficient to prove the charge. He submitted that defence version was afterthought and the concurrent finding of the two Courts qua guilt of the petitioner being not suffering from any misreading or non-reading of evidence or any other legal defect would not call for interference of this Court.
This is a case of two versions. The prosecution version as contained in the FIR is that the petitioner at the instigation of Muhammad Saleem, the acquitted accused, threw burning kerosene oil stove on the deceased as a result of which she sustained burnt injurious which proved fatal to her life whereas according to the defence version deceased committed suicide. The perusal of the statement of the eye-witnesses and the dying declaration would suggest that both versions of the occurrence were based on exaggerations and the circumstances leading to the sad incident would suggest that probably the deceased sustained the burnt injuries with burning kerosene oil stove by chance in consequence to the sudden quarrel between the ladies. The presence of Shahzad Hussain (PW-11), the sole eye witness of the occurrence, a resident of Kachi Abadi, Mehmoodabad, situated at a reasonable distance from the house of deceased located in main Bazar, Garhi Shahu in the area of Police Station, Haveli Haji Moosa at the relevant time, was not satisfactorily explained therefore, notwithstanding the fact that witness had no enmity or grudge against the petitioner or the acquitted accused, his presence at the scene of occurrence being doubtful, it would not be safe to place reliance on his evidence. The medical evidence revealed that 70% body of the deceased was burnt and this is a matter of common sense that in such a precarious condition, it was not possible for the deceased to narrate the occurrence in each detail to Muhammad Kashif (PW-3), rickshaw driver and Sh. Bashir Hussain, S.I. (PW-2) who recorded the statement of deceased in the hospital. The Sub-Inspector has claimed to have obtained the permission from Dr. Muhammad Absar Sirati (PW-10) present on duty and no doubt the said doctor has also confirmed to have given such permission but certainly the statement of the deceased was recorded in absence of the doctor and the staff of the hospital. This may be seen that permission for recording the statement of deceased was not obtained from Dr. Muhammad Obaidullah (PW-5) who initially examined the deceased on her arrival in the hospital and provided her the treatment so much so the chart of the patient containing initial investigation regarding the condition of the deceased prepared by him was not produced in evidence to show that she was conscious and was fit to make a statement. Sultan Ahmed Chaudhry, ASP (PW-12) stated that petitioner had cordial relations with the deceased and as per his investigation, none of the witnesses was present at the spot at the time of occurrence and that except the dying declaration of the deceased, no other evidence, direct or circumstantial, was available. This in an admitted fact that the statement of the deceased was not recorded by the Sub-Inspector of police in hospital in presence of the doctor and further neither any member of the hospital staff was associated at the time of recording the statement nor it was got verified by any official of the hospital that the statement was actually made by the deceased. Be that as it may, the status of such a statement would be hardly a statement under Section 161 Cr.P.C. and not a dying declaration of the deceased. This may be seem that the dying declaration or a statement of a person without the test of cross-examination is a weak kind of evidence and its credibility certainly depends upon the authenticity of the record and the circumstances under which it is recorded, therefore, believing or disbelieving the evidence of dying declaration is a matter of judgment but it is dangerous to accept such statement without careful scrutiny of the evidence and the surrounding circumstances, to draw a correct conclusion regarding its truthfulness. The rule of criminal administration of justice is that the dying declaration like the statement of an interested witness requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell lie.
This is a matter of common knowledge that in such circumstances in preference to any other person, a doctor is most trustworthy and reliable person for a patient to depose confidence in him with the expectation of sympathy and better treatment to disclose the true facts. In the present case, in the manner in which the statement of deceased was recorded by the Sub-Inspector, would seriously reflect upon its correctness and consequently, could not be considered worthy of any credit to be relied upon as dying declaration. The perusal of record would show that the two Courts in complete departure to the principles of appraisal of evidence and the rule of criminal administration of justice, held the petitioner guilty of the charge on the basis of hearsay and shaky evidence.
In the light of the above analyses of the evidence, we are of the considered view that the dying declaration could not be treated as an admissible evidence and the conviction on the basis of such an evidence on capital charge, was not legal and with the exclusion of dying declaration of deceased which was foundation of the prosecution case, the remaining evidence would not be sufficient to sustain the conviction. We, therefore, hold that prosecution has not been able to prove the charge against the petitioner beyond reasonable doubt.
In the light of above discussion, we convert this petition into an appeal, set aside the conviction and sentence awarded to the appellant and direct her release from jail if not required in any other case. This appeal is accordingly allowed.
(Javed Rasool) Appeal allowed.
PLJ 2006 SC 1009 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Raja Fayyaz Ahmed, JJ.
MUHAMMAD YAQOOB--Petitioner
versus
DISTRICT POLICE OFFICER, DISTRICT SAHIWAL and 2 others Respondents
Civil Petition No. 3027 of 2003, decided on 10.11.2005.
(On appeal from the judgment dated 2.9.2003 of the Federal Service Tribunal, Islamabad passed in Appeal No. 1939/2003).
Punjab Removal from Service (Special Powers) Ordinance, 2000 (IV of 2000)--
----Ss. 9 & 10--Punjab Police (Efficiency and Discipline) Rules, 1975--R. 12--Constitution of Pakistan, 1973--Art. 212 (3)--Right of review--Compulsory retirement from service--Maintainability--Civil Servant was compulsory retired from service on charge of gross negligence and misconduct--Departmental appeal was filed against penalty imposed by authority, which was dismissed--Civil Servant filed appeal before service tribunal but dismissed due to time barred--Assailed--Civil Servant sought shelter behind Rule 12 of Punjab Police (Efficiency and Discipline) Rules, 1975, cannot take benefit thereof that no right is given in special law having over riding effect and revision contemplated by Rules of 1975--No doubt empower of concerned department to revise the order of departmental authority but it does not vest any right in civil servant to file a revision as a matter of right--Held: Service Tribunal rightly refused to condone delay as no valid arguments were advanced in that behalf--Leave refused. [P. 1011] A & C
(ii) Punjab Removal from Service (Special Powers) Ordinance, 2000 (IV of 2000)--
----S. 10--Constitution of Pakistan, 1973--Art. 212(3)--Appeal before Service Tribunal--Limitation--Penalty of compulsory retirement was imposed on Civil Servant under Removal from Service (Special Powers) Ordinance, 2000--Service Tribunal dismissed the appeal being barred by limitation--Validity--Civil Servant was to wait for period of 60 days whereafter he has to file appeal within 30 days--Civil Servant had only period of 90 days commencing from filing of appeal because Service Tribunal had failed to decide appeal within 60 days--Civil Servant was infact supposed to have filed appeal before Tribunal on 21.3.2003, which instead was filed on 21.8.2003--Delay in filing of appeal before Service Tribunal was of five months--Service Tribunals rightly refused to condone delay and dismissed appeal. [P. 1011] B
Ch. Akhtar Ali, AOR for Petitioner.
Syed Sajjad Hussain Shah, Assistant Advocate General for Respondents.
Date of hearing : 10.11.2005.
Judgment
Sardar Muhammad Raza Khan, J.--Muhammad Yaqoob, former Sub-Inspector of Police Sahiwal, on charges of gross negligence and misconduct, was proceeded against under Punjab Removal from Service (Special Powers) Ordinance 2000, Superintendent of Police Sahiwal vide order dated 11.12.2002 imposed the penalty of compulsory retirement which was upheld in appeal by the Deputy Inspector General of Police, Multan on 4.6.2003. His appeal before the Punjab Service Tribunal was dismissed on 2.9.2003 and hence the present petition seeking leave to appeal.
The petitioner pleaded in response to the bar of limitation that after rejection of his appeal on 4.6.2003 he had filed a revision before the authority under Rule 12 of the Punjab Police (Efficiency and Discipline) Rules, 1975, which also was rejected on 9.7.2003. That he received the copy thereof on 6.8.2003 and thereafter his resort to the Tribunal on 21.8.2003 was within time.
The matter is to be dealt with in accordance with the aforesaid Ordinance 2000. Under Section 11 thereof, the provisions of any other law for the time being in force shall be considered not to have any effect. Section 9 deals with representation and review against the order passed by the departmental authority. It provides a right of one representation or review, as the case may be, but no second revision is at all permissible. The petitioner seeking shelter behind Rule 12 of the Punjab Police (Efficiency and Discipline) Rules, 1975, cannot take the benefit thereof; firstly, on the ground that no such right is given in the special law having over riding effect and, secondly, that the revision contemplated by the Rules of 1975, no doubt empowers the Inspector General of Police, etc. to revise the order of departmental authority in the circumstances given in the rule itself but it does not vest any right in the accused officer to file a revision as a matter of right. The finding of the learned Tribunal is perfectly in accord with the spirit of the Rules of 1975 as well as with the provisions of Punjab Removal from Service (Special Powers) Ordinance 2000.
The petitioner was supposed to have filed the appeal before the Punjab Service Tribunal, under Section 10 of the Ordinance, within thirty days from the order passed under Section 9 thereof. The order under Section 9 was passed on 4.6.2003 and hence, even if the petitioner is given the relaxation from the application of proviso to Section 10 of the Ordinance, he could have filed appeal within thirty days from 4.6.2003. Instead he has filed appeal before the Tribunal on 21.8.2003 after the lapse of two months and seventeen days.
If viewed in the light of proviso to Section 10 of the Ordinance, the appeal before the Tribunal was still barred by much larger a time. Departmental appeal was filed on 21.12.2002. According to the said proviso, the petitioner was to wait only for a period of sixty days whereafter he was to file the appeal within thirty days. He had only a period of ninety days commencing from the filing of appeal on 21.12.2002 because the appellate authority had failed to decide his appeal within sixty days. Accordingly, he was in fact supposed to have filed the appeal before the Tribunal on 21.3.2003, which instead was filed on 21.8.2003. In reality, the real delay is of five months.
The Tribunal rightly refused to condone the delay in the circumstances as no valid arguments were advanced in this behalf. We decline to show indulgence. There being no merit in the petition, it is hereby dismissed and leave to appeal refused.
(Rafaqat Ali Sohal) Leave refused.
PLJ 2006 SC 1012 [Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Nasir-ul-Mulk, JJ.
RIAZ HUSSAIN, Ex.A.S.I., NO. 35/PC, RAWALPINDI POLICE--Petitioner
versus
INSPECTOR GENERAL OF POLICE, PUNJAB and 2 others--Respondents
Civil Petition No. 3071 of 2003, decided on 14.11.2005.
(On appeal from the judgment of the Punjab Service Tribunal Rawalpindi, dated 27.9.2003 passed in Appeal No. 1081 of 2003)
(i) Criminal Trial--
----Defect in investigation--Insufficiency of evidence--Effect--Defect in investigation might not be a valid ground for discharge of accused, but insufficiency of evidence was definitely be a strong ground to discharge him. [P. 1013] A
(ii) Punjab Police (Efficiency and Discipline) Rules, 1975--
----Rr. 3 & 4(1)(b)(v)--Dismissal from Service--Allegation of misconduct--Omission of civil servant as Investigating Officer of a criminal case to obtain signatures of witnesses on recovery memo was intentional it would be treated as bona fide mistake which could not constitute act of misconduct--Petition converted into appeal and appellant reinstated in service without any back benefit--Appeal allowed. [P. 1014] B & C
Roy Muhammad Nawaz Khan Kharal, A.S.C. for Petitioner.
Syed Sajjad Hussain Shah, AAG for Respondents.
Date of hearing : 14.11.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This petition has been directed against the judgment dated 27.9.2003 passed by the Punjab Service Tribunal, whereby appeal of the petitioner against the penalty of dismissal from service imposed upon him by the Senior Superintendent of Police, Rawalpindi, was dismissed and order of the Departmental Authority was upheld.
"S.P./City has reported that you remained in touch with the inquiry of case FIR No. 103 dated 4.4.2001 u/S. 381-A PPC P.S. New Town for long time. You are also sent to Gilgit from where the stolen car in question was recovered and brought to Police Station New Town. You wrote the recovery memo of the witnesses and did not get this recovery memo signed by from the witnesses. Resultantly, the accused were discharged on the plea that recovery memo was not signed by the witnesses which shows you inefficiency and gross misconduct."
"Present accused is neither named in the FIR nor any body has seen him while taking away the car nor the car was recovered from the accused, moreover, no incriminating evidence is on record against the accused, therefore, he is discharged from the case. He be released forthwith if not required in any other case. The recovery memo is not signed by the witnesses."
The perusal of the order of the magistrate would show that the accused was discharged for the reason that no incriminating evidence whatsoever was brought on record to connect him with the commission of offence and not only for the reason that recovery memo was not signed by the witness. It may be seen that the petitioner who recovered the stolen vehicle was also a competent witness and without examining the recovery witnesses, it would be difficult to ascertain the question of admissibility of their evidence. The learned Assistant Advocate General, Punjab, without satisfying us that the defect in the recovery memo was the sole basis of the order of magistrate, contended that notwithstanding the fact that the order was passed by the magistrate for different consideration, the charge of negligence against the petitioner of not obtaining the signature of witnesses on the recovery memo stood established beyond doubt. It may be seen that accused was acquitted by the magistrate on the ground that there was no evidence to connect him with the crime, therefore, it would not be fair to shift the burden of weakness of the prosecution case to the petitioner and held him responsible for the discharge of accused. The defect in the investigation may not be a valid ground for discharge of an accused but insufficiency of evidence is definitely a strong ground to discharge a person from criminal charge and it is clear from the order of Magistrate that accused was discharged for want of evidence and not only for the defect in the recovery memo or in the investigation. The omission of the petitioner as an investigating officer of the case in not obtaining the signature of the witnesses on the recovery memo may or may not be a factor to damage the prosecution case but in absence of any evidence that the omission of not obtaining the signatures on the recovery memo was intentional, it would be treated as a bona fide mistake which may not constitute an act of misconduct.
In the light of foregoing reasons, we convert this petition into an appeal and set aside the judgment of the Tribunal. The appellant shall be reinstated in service but he shall not be entitled to the back benefits, and the intervening period shall be treated as leave without pay. This appeal is allowed in the above terms with no order as to costs.
(Rafaqat Ali Sohal) Appeal allowed.
PLJ 2006 SC 1014 [Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Ch. Ijaz Ahmad & Syed Jamshed Ali, JJ.
ABDUL MATEEN--Petitioner
versus
SAHIB KHAN etc.--Respondents
Crl. P. No. 39-Q of 2005, dismissed on 17.4.2006.
(On appeal from the order dated 8.8.2005 passed by High Court of Balochistan in Crl. Appeal No. 136/2005).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Appeal against acquittal--Principles enunciated--Superior Courts while dealing with appeal against acquittal interfered only in such cases where judgment and acquittal is based on misreading and non-appraisal of evidence or his speculative, artificial, arbitrary and foolish on its face--Extra judicial confessions must be proved by evidence of very high and un-impeachable character but there was no evidence of that character in circumstances of case--High Court had also after scanning evidence on record came to conclusion that discovery of dead body on pointation of respondent was highly doubtful as prosecution failed to bring on record any memo about disclosure of respondent before witnesses or to bring on record any memo about seizure of dead body on pointation of respondent coupled with fact that memo was prepared for recovery of blood stained earth from place of occurrence but same has not mentioned about recovery of dead body of deceased on pointation of respondent accused and prosecution did not corroborate such piece of evidence brought any independent piece of evidence--It is settled principle of law that accused in criminal trial is presumed to be innocent unless proved otherwise and when he is acquitted by High Court on his appeal against his conviction, earns double presumption of innocence--Burden heavily lies on prosecution to rebut said presumption--Principle of Criminal jurisprudence that finding of guilt against accused cannot be based only on probabilities that may be inferred from evidence in given case and finding of guilt should rest firmly on evidence produced--Held: High Court was justified to give benefit of doubt to him keeping in view golden rule of benefit of doubt--Petition dismissed. [Pp. 1016, 1017 & 1018] A, B, C, D & E
PLJ 1985 SC 154; PLJ 1984 SC 61 & PLD 1977 SC 109, ref.
Mr. M. Ayaz Khan Swati, ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 17.4.2006.
Order
Ch. Ijaz Ahmad, J.--The detailed facts have already been mentioned in the impugned judgment. However, necessary facts out of which the present petition arises are that Respondent No. 1 was involved in a case FIR No. 43/2002 which was registered at P.S. Kuchlac, Quetta u/S. 302 PPC for committing murder of one Saeed Khan on the complaint of Abdul Mateen father of deceased (present petitioner). The investigation agency investigated the matter and found Sahib Khan respondent guilty and submitted challan in the competent Court against the respondent. The learned Addl. Sessions Judge Quetta vide judgment dated 26.3.2004 convicted the Respondent u/S 302(b) PPC and sentenced him to undergo imprisonment for life as Tazeer alongwith compensation to the tune of Rs. 50,000/-. In case of default in payment of compensation to further undergo S.I for six month. It is pertinent to mention here that benefit of Section 382-B of Cr.P.C. was also extended in favour of respondent. Respondent being aggrieved filed Crl. Appeal No. 136/2005 in the High Court of Balochistan whereas the complainant/petitioner also filed Crl. Revision No. 23/2004 which were decided by one consolidated judgment by the learned High Court. The learned High Court accepted the appeal of the respondent vide impugned judgment dated 8.8.2005 and acquitted him whereas the revision petition filed by the petitioner was dismissed. Hence, the present petition.
The learned counsel for the petitioner submits that the trial Court had convicted the respondent as the prosecution has proved its case against the respondent beyond the shadow of doubt consisting of confession of the respondent, circumstantial evidence, recoveries and discoveries, motive and medical evidence whereas the learned High Court had accepted the appeal by mis-reading and non reading of the record. He further urges that learned High Court had decided the case against the petitioner on surmises and conjunctures. He further urges that learned High Court had acquitted the respondent without judicial application of mind.
He have given our due consideration to the contention of learned counsel of the petitioner and perused the record. It is deemed proper to reproduce principle laid down to interfere where the accused were acquitted by the Courts before:--See Ghulam Sakindar and another v. Mamaraz Khan and others (PLD 1985 SC 11):--
(i) "In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This different of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: on initial, that till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence.
(ii) The acquitted will not carry the second presumption and will also thus loose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) mis read such evidence; (c) received such evidence illegally.
(iii) In either case the well known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principles as noted above and for no other reason.
(iv) The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusions; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching right, should be found wholly as artificial, shocking and ridiculous".
It is well settled by now that the superior Courts while dealing with the appeal against acquittal interfered only in such cases where the judgment and acquittal is based on misreading and non appraisal of evidence or his speculative, artificial, arbitrary and foolish on its face. The learned High Court while deciding the appeal of the respondent had kept in mind the aforesaid principle. According to the prosecution version, the respondent had admitted the guilt himself before PW7 Abdul Mateen complainant. The learned High Court had not believed the extra-judicial concession with cogent reasons in view of contradictions and improvements in the statements of the witnesses and PW7 had improved the statement in such a manner to explain the delay of more than 8 hours i.e. from 2:00 p.m. to 10:20 p.m. and this fact had brought the statement of PW7 in the area of doubt. It is pertinent to mention here that prosecution could not brought any independent corroboration to prove the extra-judicial confession made by respondent. It is true that extra-judicial confessions must be proved by evidence of a very high and un-impeacable character but we are of the opinion that there is no evidence of that character in the circumstances of this case. The learned High Court had also after scanning the evidence on record came to the conclusion that discovery of dead body on the pointation of respondent was highly doubtful as the prosecution failed to bring on record any memo about the disclosure of respondent before witnesses or to bring on record any memo about the seizure of dead body on the pointation of respondent coupled with the fact that memo was prepared for recovery of blood stained earth from the place of occurrence but the same has not mentioned about the recovery of dead body of deceased on pointation of respondent accused and the prosecution did not corroborate this piece of evidence through any independent piece of evidence. The learned High Court had also after proper re-appraisal of the evidence on record had found recovery of weapon of offence from the respondent/accused to be shrouded in doubt. PW4 Moula Dad ASI had also admitted in cross examination that weapon of offence was not blood stained. Similarly the learned High Court had also come to conclusion that recoveries of knife and Shalwar could not lend any support to the case of prosecution to connect the respondent with the commission of crime with cogent reasons coupled with the fact that PW9 Abdul Manaf SI/SHO also admitted that complainant Abdul Mateen had filed application before him wherein he alleged that apart from the respondent others were also involved in the murder of his son and use of Kalashnikov/pistol was also alleged. The learned High Court after scanning of the evidence had come to the conclusion that prosecution had failed to prove the case against the respondent beyond any shadow of doubt. It is a settled principle of law that a accused in a criminal trial is presumed to be innocent unless proved otherwise and when he is acquitted by the learned High Court on his appeal against his conviction, earns double presumption of innocence. The burden heavily lies on the prosecution to rebut the said presumption. The learned counsel of the petitioner has miserably failed to rebut the said pre-sumption. It is an admitted fact that there is no direct evidence in this case. All the evidence is based on different sets of circumstantial evidence. We are of the opinion that such evidence which requires corroboration cannot corroborate each other and therefore, cannot legal basis for conviction. Meaning thereby where they are two sets of evidence neither of which alone can be accepted without corroboration, they cannot each in its turn be taken to corroborate the other and joint together so as to justify any Court in acting on such evidence. See Empress v. Jadub Das (ILR 27 Kal. 295) & Machia and two others v. The State (PLD 1976 SC 695). It is a settled law that, even if recovery is believed, it is only corroborative. When there is no evidence on record to be relied upon, then there is nothing which can be corroborated by the recover as law laid down by this Court in Saifullah's case (PLJ 1985 SC 154). It is the basic principle of criminal jurisprudence that finding of guilt against an accused cannot be based only on the probabilities that may be inferred from evidence in a given case and finding of the guilt should rest firmly on the evidence produced. The learned High Court was justified to give benefit of doubt to him keeping in view the golden rule of benefit of doubt. See Muhammad Ramzan's case (PLJ 1984 SC 61). It is a settled principle of law that this Court cannot interfere in the conclusions arrived at by the learned High Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan unless and until the conclusion is result of perversity arbitrary. See Malik Muhammad Ishaque's case (PLD 1977 SC 109).
In view of what has been discussed above, we do not find any merit in this petition which is dismissed. Leave to appeal is refused.
(Aliya Sattar Chaudhry) Petition dismissed.
PLJ 2006 SC 1018 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Muhammad Nawaz Abbasi, JJ.
SULTAN MEHMOOD--Petitioner
versus
STATE--Respondent
Jail Petition No. 141 of 2005, decided on 17.4.2006.
(On appeal from the judgment dated 6.6.2005 of Lahore High Court, Rawalpindi Bench passed in Criminal Appeal No. 372/2000 and Murder Reference No. 573 of 2000).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/324/337-F(i)-F(iii)--Conviction & sentence--Leave to appeal--Three witnesses were natural witnesses--One had no reason to doubt their presence--Two witnesses were provenly injured by pallets from .12 bore shotgun--Being injured witnesses, their presence was all more fortified--Testimony, status and credibility of eye witnesses is such that it does not even need corroboration--As many as three natural eye-witnesses including two injured, one does not normally require corroboration and conviction can be based solely on such testimony--Ocular testimony is fully supported by post-mortem report indicating pallet injuries on front chest area of deceased--Distance involved between assailant and victims is again relevant in connection with spread of pallets, seen in view of site-plan where three victims are standing next and close to each other--Petitioner is single accused charged by his own wife where possibility of substitution is highly improbable--Held: Prosecution version initiated by eye-witnesses is fully supported by independent evidence as well as strong attending circumstances including motive--Held further: It was case of premeditated murder--Petition dismissed and leave to appeal refused.
[Pp. 1020, 1021 & 1022] A, B, C, D, E, F, G & H
Sh. Mehmood Ahmad, ASC for Petitioner.
Mr. Dil Muhammad Tarar, ASC for State.
Date of hearing : 17.4.2004.
Judgment
Sardar Muhammad Raza Khan, J.--Sultan Mehmood son of Sher Afzal convict has filed this petition through Superintendent Central Jail, Rawalpindi seeking leave to appeal against the judgment dated 6.6.2005 of a learned Division Bench of Lahore High Court, Rawalpindi Circuit, whereby, his appeal was dismissed, the death sentence awarded to him by learned Additional Sessions Judge Rawalpindi vide judgment dated 12.9.2000, was maintained and murder reference under Section 374 Cr.P.C. was answered in the affirmative.
The petitioner stood convicted under Section 302 PPC and sentenced to death. He was also convicted under Sections 324/337-F(i)/337-F(iii) PPC and sentenced to imprisonment for ten years, three years and one year respectively, in addition to a compensation of Rs. 2,00,000/- (rupees two lac) to be paid to the legal heirs of the deceased and to the injured prosecution witnesses, in equal shares.
The background is given in FIR 185 dated 3.3.1998 of Police Station Wah Cantt. District Rawalpindi, lodged by Mst. Rafia Begum, the wife of convict Sultan Mehmood. Mst. Rafia Begum had previously been married to one Abdul Hameed, the union having resulted into the birth of two sons and two daughters. Five to six years prior to the occurrence she got divorced and joined service in Pakistan Ordnance Factory Hospital. She started residing in House # 25-G/69 Wah Cantt alongwith one daughter and two sons.
About four years prior to the occurrence she married Sultan Mehmood convict, a colleague in the hospital who already was married and had children living in House # 25-G/63 Wah Cantt. As desired by Sultan Mehmood, she got her daughter Mst. Nagina Bibi married. For the last about six months Sultan Mehmood ousted her son Aamer Shahzad from her house.
On the day of occurrence (3.3.1998), she, after duty hours, was present in the hospital gate when her son Aamer Shahzad and her son-in-law Allah Ditta came there. They all started for the house and reached there at 14:30 hours to find her husband Sultan Mehmood and her younger son Tamour Shahzad already present. When Sultan Mehmood saw Aamer Shahzad and Allah Ditta, he started hurling abuses at them as to why they had come to that house. This resulted into scuffle between Aamer Shahzad and Allah Ditta on the one hand and her husband Sultan Mehmood on the other. Mst. Rafia Begum managed to separate them and thus Sultan Mehmood left for the house where his first wife resided. He returned after some time duly armed with a .12 bore shotgun. Aiming the gun at Aamer Shahzad, Tamour Shahzad and Allah Ditta, he fired a shot that hit at the chest of Tamour Shahzad while the pallets injured Aamer Shahzad and Allah Ditta, standing close by. The accused ran away from the spot. On the hue and cry of the complainant lady, people from muhallah got attracted with whose help she took her injured son Tamour Shahzad to POF Hospital where he succumbed to the fatal injury. Motive for the occurrence is that Sultan Mehmood did not like Aamer Shahzad and Tamour Shahzad, the sons of complainant to live with her in her house. Shaukat Ali, Sub-Inspector alongwith other police party reached the Hospital where the aforesaid FIR was registered after one hour and thirty minutes.
The accused during his statement under Section 342 Cr.P.C. pleaded innocent, saying that all the witnesses were closely related inter se and had falsely involved the accused because divorce was demanded for Mst. Rafia Begum which was refused by him.
The occurrence has taken place in the residential house of Mst. Rafia Begum after the close of duty hours. PW Allah Ditta is the son-in-law of the complainant lady while Aamer Shahzad and deceased Tamour Shahzad are her sons living with her in that very house. The presence of all the four on the spot is most natural phenomena and hence the three eye-witnesses Mst. Rafia Begum, Aamer Shahzad and Allah Ditta are the natural witnesses. One has no reason to doubt their presence. PW Aamer Shahzad and PW Allah Ditta both are provenly injured, by pallets form a .12 bore shotgun. Being injured witnesses, their presence is all the more fortified.
Without abandoning anyone, the prosecution has examined all the three eye-witnesses against the appellant. They have been consistent throughout in supporting the facts having already been narrated in the FIR which, in the given circumstances, was the most promptly lodged report. Any chances of false involvement, concoctions and deliberations are altogether excluded. The testimony could not be shattered at all in the cross-examination. We are satisfied that the case of prosecution is squarely proved by the mere examination of as many as three eye-witnesses who were most natural and out of whom two were injured bearing the marks of occurrence on their person. The testimony, the status and credibility of the eye-witnesses is such that it does not even need corroboration. No doubt they are related to the complainant as well as the deceased but the convict Sultan Mehmood equally carries the status of being the husband of Rafia Begum, complainant and the step-father of Aamer Shahzad and the step-father-in-law of Allah Ditta. But for the murder of Tamour Shahzad, the witnesses have no enmity whatsoever with the accused to the extent of involving him in an offence of capital charge. The two Courts have rightly believed such evidence which, at the first instance, does not require corroboration.
The convict has taken the plea that Mst. Rafia Begum demanded divorce, which was refused by him and hence, because of such ill-will, he was falsely involved. To us, it sounds not only unnatural but also ridiculous. If the complainant lady and her sons wanted to get rid of the convict, it could very well have been done by asking for divorce through legal process. It does not appeal to reason that Tamour Shahzad was murdered by somebody else who was spared to go scot-free and Sultan Mehmood was dishonestly involved merely because lady wanted a divorce. The risk involved in the substitution is too high to be true. The accused has failed to prove any demand of divorce by or on behalf of the lady.
In a case supported by as many as three natural eye-witnesses including the two injured, one does not normally require corroboration and conviction can be based solely on such testimony. When we say that conviction can be based on the testimony of three eye-witnesses without corroboration, it is only with reference to a principle of appreciation of evidence in criminal justice and it does not at all mean that, in the present circumstances, there is no corroboration.
The ocular testimony is fully supported by postmortem report indicating pallet injuries on the front chest area of deceased Tamour Shahzad. It is further supported by the medico legal reports of Aamer Shahzad (PW-10) and Allah Ditta (PW-11) who have sustained injuries that could well be caused by natural spread of pallets. The distance involved between the assailant and the victims is again relevant in connection with the spread of pallets, seen in view of the site-plan where the three victims are standing next and close to each other.
Further corroboration is sought from the gun recovered at the instance of the accused and the empty of .12 bore that matched with the gun and was fired therefrom.
The convict never denied in his statement under Section 342 Cr.P.C. in specific, that at the day, time and place of occurrence, he was not present at all. The plea of divorce is totally uncorroborated as well as fake. The occurrence also has not taken place at the spur of the moment because on the spot the accused and the victims had grappled with each other and were separated by the wife of the accused. The matter had ended up there and then but the accused went to his house and again arrived at the spot by fetching a shotgun. His second appearance with shotgun is a clear indicator of his premeditated design. The motive, because of previous occurrence on the spot, seems to have aggravated and he attempted to eliminate, may be, Aamer Shahzad whom the had already turned out of the house of his second wife. The shot hit Tamour Shahzad instead which, by all means is a murder of the first degree.
In the instant case, the petitioner is the single accused charged by his own wife where the possibility of substitution, in the circumstance, is highly improbable. The instant prosecution version initiated by the eye-witnesses is fully supported by independent evidence as well as strong attending circumstances, including the motive.
After having thoroughly gone through the case record, we are convinced that the prosecution has successfully brought home the guilt to the petitioner's doorstep. It was a case of premeditated murder and hence required the imposition of normal penalty of death. There being no force in the petition, it is hereby dismissed and leave to appeal refused.
(Aliya Sattar Chaudhry) Petition dismissed.
PLJ 2006 SC 1022 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J. & Mian Shakirullah Jan & Syed Jamshed Ali, JJ.
STATE through FORCE COMMANDER, ANTI-NARCOTICS FORCE, RAWALPINDI--Petitioner
versus
KHALID SHARIF--Respondent
Crl. Petition No. 397 of 2005, decided on 10.4.2006.
(On appeal from the judgment/order dated 31.10.2005 passed by Lahore High Court Rawalpindi Bench, Rawalpindi in Crl. Misc. No. 1031-B/2005).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Control of Narcotic Substances Act, 1997 (XXV of 1997), Ss. 9(c), 14 & 15--Constitution of Pakistan, 1973--Art. 185(3)--Bail--Cancellation--Recovery of narcotic--Incriminating evidence available--Filing of affidavits by witnesses--Grant of bail by High Court--Challenge to--Both witnesses got recorded their statements two days from date of registration of case--Careful perusal of these statements reveals that they had fully substantiated prosecution case--They remained strict to their stand till disposal of request of accused for grant of bail, but after his submission of bail application before High Court, affidavits, denying earlier stand were managed by defence and were filed--In affidavits, they have resiled from their stand earlier taken by them before investigating Agency--Both witnesses at time of investigation of case furnished incriminating evidence to prima facie, conclude that respondent is involved in commission of offence falling within mischief of S. 9(c) of Act, 1997--High Court despite evidence available on record had conducted further inquiry in vague manner to make out case for grant of bail--Held: It was case in which High Court may have not exercised discretion in favour of respondent for purpose of granting bail to him--Held further: Such order being contrary to recognized principles of law for grant of bail, deserved to be set aside--Appeal allowed and bail cancelled.
[Pp. 1027, 1028 & 1029] A, B, C, D, & E
Mr. Muhammad Munir Peracha, ASC and Mr. Ejaz Muhammad Khan, AOR for Petitioner.
Malik Rabnawaz Noon, ASC and Ch. Arshad Ali, AOR for Respondent.
Date of hearing : 10.4.2006.
Order
Iftikhar Muhammad Chaudhry, CJ.--Petitioner has challenged the order dated 31st October 2005, passed by Lahore High Court, Rawalpindi Bench, Rawalpindi whereby respondent, being an accused under Section 9(c), 14 and 15 of the Control of Narcotic Substances Act, 1997 [herein after referred to as "the Act, 1997"] has been granted bail, therefore, instant petition for cancellation of bail has been filed.
Facts, giving rise to instant proceedings, are that respondent is the owner of Muslim Hotel, I & T Centre, G-10, Islamabad [herein after referred to as `the Hotel']. On 20th July 2005, at 10.00 p.m. Shehzad Ali Kavish, Inspector, ANF, Rawalpindi, in pursuance of psy information about concealment of narcotics in different rooms of the Hotel, statedly meant for sale to foreigners, conducted raid in Hotel's rooms including the Room No. 102. Its lock was opened and 1 Kg of heroine and 2 Kg Charas, concealed in special designed cavities were recovered therefrom. Similarly, from Rooms Nos. 103, 104 and 105 and 115, narcotics of different quantity, were recovered. The rooms were occupied by foreign nationals as such they were also arrested. According to investigation respondent had earmarked Room No. 102 for his exclusive use. The samples of the recovered narcotics from Room No. 102 were prepared for the report of chemical analyzer. Later on, respondent was arrested. During investigation, statements of co-accused Raja Muhammad Nawaz and one Malik Najeebullah, being responsible to look after the accounts of the Hotel were recording. It is stated that Malik Najeebullah is related to respondent bieng his maternal uncle. PWs-Zaheer Ahmed and Ijaz Muhammad, waiters of the Hotel, were also examined. They supported the prosecution case and charged the respondent for the commission of the offence. The Trial Court declined to release respondent on bail. However, concession of bail was extended to him by the learned High Court vide impugned judgment. As such present petition has been filed for cancellation of the bail.
Learned counsel for the State contended that:--
(i) Admittedly business of Hotel was being run by respondent through employees, as he himself is in the Government Service, therefore, he had obtained licence in the name of Malik Najeebullah.
(ii) PWs Zaheer Ahmed and Ijaz Muhammad, in their statements, before the Police, recorded on 22nd July 2005 furnished strong incriminating evidence to substantiate that narcotics were kept in Room No. 102 by the respondent.
(iii) Sentence under Section 9(c) of the Act, 1997, is death or imprisonment for life, therefore, he was not entitled for grant of bail.
(a) Though the respondent is the owner of the Hotel but he has no physical control over it as Malik Najeebullah, his maternal uncle, on whose name professional licence was issued by the Excise Department, used to run it.
(b) PWs-Zaheer Ahmed and Ijaz Muhammad has resiled from their statements, given to Investigation Officer, as they furnished affidavit dated 31st October 2005, filed during pendency of the application of respondent for grant of bail in the High Court, which was instituted on 17th September 2005.
(c) Raja Muhammad Nawaz being co-accused legally is not capable to furnish incriminating evidence against the respondent.
(d) Malik Najeebullah was running the Hotel, therefore, respondent cannot be held responsible for the commission of offence, if any committed.
(e) The prosecution version that Room No. 102 was in the exclusive use of respondent is incorrect because according to the register of booking of rooms, this room had been let out from time to time.
(f) The trial of the case is about to commence, therefore, cancellation of bail of respondent will not advance the cause of justice.
(g) The superior Courts, ordinarily, had declined to cancel the bail of an accused, unless the order of the High Court is not found perverse or otherwise in the eye of law.
We have heard parties counsel at length and have also gone through the relevant record so made available before us. It is an admitted fact that respondent is the owner of the Hotel. He is in the employment of the Government and business of hotel was being run by him through one Malik Najeebullah as the licence was obtained by him on his name from the Excise Department, but said person had left the job as it is pointed out by the learned counsel appearing for him who had read the affidavit filed by him, which was in possession of learned counsel. According to him he was arrested by the police, initially in the case but to prove his innocence, he prepared this affidavit.
It is note worthy that in the affidavit in unambiguous terms, Malik Najeebullah maintained that he left the job eight months back. Thus no evidence is available on record to infer that the Hotel was not being run by the respondent himself. Record further reveals that keys of Room No. 102 of the Hotel were obtained by investigating agency from the counter and opened in presence of witnesses as per recovery memos. It is important to note that on search of Room No. 102, narcotics were found lying in special designed cavities. As far as the guests or employees of the Hotel are concerned, they are not suppose to make such cavities as built-in cavities could be made at the time of construction of the Hotel or later on, by no one else, except the owner of the Hotel, or with his permission.
So far as the statements of two witnesses i.e. Zaheer Ahmed and Ijaz Ahmad are concerned, they are very important. Both the witnesses got recorded their statements on 22nd July 2005 i.e. two days from the date of registration of the case. A careful perusal of these statements reveals that they had fully substantiated the prosecution case. It is important to note that they remained strict to their stand till the disposal of the request of the petitioner for grant of bail, but after his submission of bail application before the High Court on 17th September 2005, affidavits, denying earlier stand, were managed by the defence and were filed on 31st October 2005. In affidavits, they have resiled from their stand earlier taken by them before the Investigating Agency. The learned High Court had believed their changed stance as it is evident from the following para of the judgment:--
"7. Khalid Aziz, Manager of the Hotel, Najeeb Awan, Accountant, Zubair Ahmad and Muhammad Ejaz both waiters recorded their statements under Section 161 Cr.P.C. with an inordinate delay. However, all the witnesses executed an affidavit exonerating the petitioner from the commission of the crime. In this view, the prosecution is in possession of a solitary statement of Muhammad Nawaz, a co-accused of the petitioner. The case of the petitioner, thus, is open to further inquiry into his guilt.
"Be that as it may, we do not propose to make any comments with regard to the statements of these two witnesses mentioned above for the reason that they would still be examined in the trial Court as witnesses where they would be subjected to cross-examination but this fact alone is not enough to falsify other material on the record, i.e. statements of four injured eye-wintesses implicating the petitioner, the motive alleged against him, absconsion, recovery of five empties of pistol of .30 bore from the spot before the recovery of pistol from the petitioner and the positive report of the Ballistic Expert. At the time of hearing of bail application Court is supposed to do tentative assessment of the material available on the record, which is different from final appraisement and evaluation of evidence which is to be done by the Trial Court which was to record evidence of witnesses. A trend has developed nowadays that eye-witnesses some times take a somersault and give statements which are different from prosecution case and some times file affidavits also at the stage of hearing of bail applications of accused persons with intention of creating doubt in the case of prosecution to enable the accused to get bail. The Courts have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court. It is the mind of the Court which is to be satisfied where about-turn of some of eye-witnesses in the manner stated above shakes up the whole prosecution case from the point of view of credibilities of the remaining material. In that respect each is to be decided on its own merits. In the instant case we are of the view that there is sufficient material on the record which satisfies the mind of the Court to the effect that it is case of not only Lalkara but the petitioner had come armed with a pistol and had fired and the motive is mentioned in the FIR against him and there is positive report of the Billistic Expert that the five crimes/empties were fired from the pistol which was recovered from the petitioner and the fact that he was arrested after a delay of twenty-three days."
It is important to note that in this case earlier two judgments referred to herein above were not discussed but with due deference to the view taken therein, we may point out that this Court had time and again stated that the bail applications are to be disposed of on the basis of material available on record as the Court is required to form a tentative assessment of the evidence available on record, as it has been held in Behram Khan v. Nasir Ahmad Bacha (PLD 1986 SC 118).
It may be noted that the cases of accused persons, who are involved in the commission of drug trafficking, etc. are to be considered carefully, in view of the fact that the menance of the drugs is creating havoc for the society and the Courts in such like cases may have not granted relief for technical reasons. If the Court is satisfied that the sufficient material is available on record, then on hesitation should be felt in declining relief to them. Reference in this behalf can be made to Munawar Hussain v. The State (1993 SCMR 785). It may also be noted that accused persons, particularly involved in narcotics cases, faced no difficulty in obtaining affidavit from the witnesses, resiling from their previous statements, therefore, while considering the same the Court is required to see facts of each case in its peculiar perspective to ascertain as to whether the accused is involved in the commission of offence or not? Both the witnesses Zaheed Ahmed and Ijaz Muhammad at the time of investigation of the case furnished incriminating evidence to, prima facie, conclude that respondent is involved in the commission of offence, falling within the mischief of Section 9(c) of the Act, 1997.
Learned counsel for respondent contended that once the bail is granted, it is not to be cancelled unless the prosecution alleges that the concession of bail has been abused by the accused. In this behalf he relied upon Ajmal Khan v. Liaqat Hayat (PLD 1998 SC 97), wherein it has been held that Supreme Court, normally does not interfere with the order of the Court regarding bail in cases in which either the challan has been put in the Court and the trial is likely to commence shortly or the trial has begun. He also relied upon Muhammad Jahangir Badar v. State (PLD 2003 SC 525). In this judgment it has been held that if the trial of the case had commenced, then, instead of releasing the accused on bail, direction be made for expeditious disposal of the case by adopting certain modalities to ensure that the accused was not detained further for indefinite period.
We have examined both the principles discussed in these cases. In our considered opinion, the principles enunciated therein are not applicable on the facts of the case in hand for the reason that the Court is empowered to cancel the bail if the order on the face of it is perverse and has been passed in violation of the principles laid down for grant or cancellation of bail. Essentially in instant case, learned High Court, despite evidence, available on record, had conducted further inquiry in a vague manner, to make out a case for grant of bail. This practice has been prohibited by this Court. Reference in this belief can be made to Gulzar Hassan v. Ghulam Murtaza (PLD 1970 SC 335), wherein, on the basis of the judgment in the case of Farid v. Ghulam Hussain and others (1969 SCMR 924), held that "the Court is not called upon at the stage of bail to conduct anything in the nature of preliminary trial to consider the probability of an accused to guilt or innocence, though it is necessary to ascertain as to whether there exists any reasonable ground upon which its belief can be founded that he had been guilty of such an offence". As it has been pointed out herein above that the affidavits were obtained from both the witnesses on 31st October 2005, after filing of application by the respondent for grant of bail before the High Court on 17th September 2005 and learned High Court on having believed the same, granted bail to the respondent. As far as the judgment in the case of Muhammad Jahangir Badar (ibid), relied upon by the learned counsel is concerned, it is not helpful to him because in that case bail was not granted to the accused but the time was fixed for conclusion of the trial. In instant case as well, the charge has been framed and in such like situation, learned High Court may have directed for completion of trial by adopting certain modalities.
Learned counsel also relied upon Tariq Bashir vs. State (PLD 1995 SC 34), to canvas that when once bail has been granted then strong and exceptional grounds would be required for the cancellation thereof. He also relied upon Razi Khan v. Muhammad Mushtaq (1996 SCMR 984). In this case leave to appeal was refused while holding that the Court of competent jurisdiction in its discretion had allowed bail to Respondent No. 1; the reasons given by the learned High Court that the discretion exercised by Sessions Court in allowing bail to accused were supported by the evidence and circumstances appearing in the case; accused was not named in the FIR; consideration for the grant of bail and cancellation thereof being altogether different. Apparently the facts of the case in hand are altogether different from the facts of the case relied upon by the learned counsel.
Learned counsel also relied upon Muzaffar Iqbal v. Muhammad Imran Aziz (2004 SCMR 231). In this case a very important principle has been highlighted namely "the discretion is left to the Court under Section 497(5) Cr.P.C. which is `pari materia' with the principles which apply to the setting aside of the order of acquittal". There is no cavil with the proposition discussed therein. Applying this principle on the case in hand, if can safely be held that as the evidence of both the PWs-Zaheer Ahmed and Ijaz Muhammad, recorded by the Police, cannot be kept out of consideration, on the basis of affidavits filed by them, subsequently, when the matter was pending before the High Court, therefore, their evidence could have been kept out of consideration, as in acquittal cases, if some important evidence is not discussed or kept out of consideration, interference is called for by the Appellate Court. Reference in this behalf may be made to Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11).
Learned counsel also relied upon Suba Khan v. Muhammad Ajmal (2006 SCMR 66). In this case as well the same principle, which has been highlighted herein before has been reiterated, therefore, judgment needs not to be discussed.
On the basis of material, whatsoever has been brought on record, prima facie, we are of the opinion that it was a case in which learned High Court may have not exercised discretion in favour of respondent for the purpose of granting bail to him under Section 497(2) Cr.P.C., as such the order, being contrary to recognized principles of law for the grant of bail, deserved to be set aside.
Thus, for the foregoing reasons, petition is converted into appeal and allowed, impugned order dated 31st October 2005 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Cr. Misc. No. 1031-B of 2005 is set aside, as a result whereof bail granted to respondent Khalid Sharif is cancelled. He is directed through surety to surrender immediately, failing which surety bond shall be forfeited by the Trial Court in accordance with law.
(Aliya Sattar Chaudhry) Appeal allowed.
PLJ 2006 SC 1029 [Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Ch. Ijaz Ahmad & Syed Jamshed Ali, JJ.
Mst. GUL NISSA and another--Petitioners
versus
MUHAMMAD YOUSAF and another-Respondents
Crl. Petitions Nos. 25 & 26-Q of 2005, decided on 21.4.2006.
(On appeal from the order dated 15.6.2005 passed by the High Court of Balochistan on Crl. Appeal No(s) 50/2003).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Criminal Procedure Code, 1898 (V of 1898), S. 164--Confessional Statement--Appraisal of evidence--Conviction and sentence--Leave to appeal--High Court had convicted the convict by accepting confessional statement of convict by holding that confessional statement was given by him without duress of his own free will--Mere reading of confessional statement, convict committed murder of deceased is grave and sudden provocation--Confession or admission when made sole basis of conviction must consider as whole--Held: Accused can be convicted on his own statement even if prosecution evidence is rejected--Held further: Counsel of parties have failed to point out that discretion exercised by High Court amounted to mis-carriage of justice--sentence reduced from death to life imprisonment--Petition dismissed.
[P. 1031 & 1032] A, B, C, D & E
NLR 1989 Cr. 101; 1990 SCMR 1053; PLD 1977 SC 153; 1976 SCMR 138; NLR 1984 Criminal 7; 1982 Pakistan SC Cases 1482; NLR 1991 Criminal 239; PLD 1958 Lahore 142 and PLD 1961 Karachi 240.
Mr. Amanullah Kamrani, ASC for Petitioner (in Crl. Petition No. P 25-Q/05).
Mr. Tariq Mehmood, ASC for Petitioner (in Crl. P. 26-Q/05).
Nemo for Respondent.
Date of hearing : 21.4.2006.
Order
Ch. Ijaz Ahmad, J.--We intend to decide both the aforementioned petitions by one consolidated order having similar facts and law arising out of the same impugned judgment.
The detailed facts have already been mentioned in the impugned judgment. However, necessary facts out of which the present petitions arise are that respondent Muhammad Yousaf in Crl. Petition No. 25-Q/05 & petitioner in Crl. Petition No. 26-Q/05 in involved in a case FIR No. 17/2000 registered against him u/S. 302/34 PPC at Police Station Levies Thana Tamboo alongwith his co-accused Abdul Fateh, Ghulam Muhammad and Abdul Haleem on 9.3.2003 on the complaint of Liaqat Ali PW2 for the murder of Niaz Muhammad and Mst. Malik Naz. The investigating agency investigated the case, found the respondent guilty and submitted challan before the competent Court. The learned Sessions Judge, Nasirabad at Dera Murad Jamali convicted and sentenced the respondent to death on each account. It is pertinent to mention here that remaining three co-accused were declared absconders. The respondent being aggrieved filed criminal appeal in the High Court of Balochistan. The learned High Court after reappraisal of the evidence found that prosecution had proved the case against the respondent beyond any shadow of doubt. However, keeping in view the circumstances of the case specially confessional statement of the convict, the learned High Court converted the sentence of death into life imprisonment u/S. 302(b) of PPC and benefit of Section 382-B Cr.P.C. was also extended to him. Hence, the present petitions.
Mr. Tariq Mehmood, learned ASC appearing on behalf of petitioner in Crl. Petition No. 26-Q/2005 submits that learned High Court had disbelieved the ocular account as furnished by the prosecution through PW-2 Liaqat Ali, PW-3 Muhammad Waqar. He further urges that learned High Court had also noted the contradictions in the statements of the PW-2 Liaqat Ali and PW-3 Muhammad Waqar. He further urges that PW-3 Muhammad Waqar was chance witness as observed by the learned High Court in the impugned judgment on the ground that Muhammad Waqar was a student of Govt. College Quetta and he failed to furnish sufficient explanation qua his presence at the time of incident at the place of occurrence. He further urges that the learned High Court had awarded the sentence to the convict after rejecting the evidence of the prosecution on his confessional statement. He further urges that convict had not given confessional statement of his own free well and infact he had given confessional statement under duress and this fact was not noted by the Courts below the benefit of same was not given to him in accordance with the mandatory provisions of law. He further urges that confessional statement of the convict must be read as a whole and not any piece of the statement.
Mr. Amanullah Kamrani, learned counsel appearing on behalf of petitioner in Crl. Petition No. 25-Q/2005 submits that both the Courts below had give finding of fact against the convict to the extent that prosecution had proved the case against him beyond any shadow of doubt. He further urges that the learned trial Court had awarded the capital punishment to the convict whereas the learned High Court had reduced the sentence of death into life imprisonment without any cogent reasons and it was the duty of the learned High Court to give reasons for reducing the sentence of the convict.
We have given our due consideration to the contentions of learned counsel of the parties and perused the record. It is an admitted fact that learned High Court after re-appraisal of evidence had given findings of fact that PW-3 Muhammad Waqar was not present at the place of occurrence. The learned High Court had after analyzing the evidence of the two witnesses namely Liaqat Ali and Muhammad Waqar came to the conclusion that their statement on material points are at variance. The learned High Court had convicted the convict by accepting the confessional statement of the convict by holding that the confessional statement was given by him without duress of his own free well. It is better and appropriate to reproduce the confessional statement to resolve the controversy between the parties:--
Mere reading of the aforesaid confessional statement, it is crystal clear that convict had committed murder of the deceased in grave and sudden provocation. It is a settled law that confession or admission when made sole basis of conviction must consider as a whole. See Hamid Ullah Khan's case (NLR 1989 Cr. 101) & Muhammad Aksar's case (1990 SCMR 1053). The learned High Court was justified to convert the death into life imprisonment. This Court had reduced the even sentence in such type of cases to sentence of five years. Therefore, learned High Court was justified and with cogent reasons reduced the sentence of the convict from death to life imprisonment. It is pertinent to mention here that the same is inconsonance with the law laid down by the superior Courts. See Kamal's case (PLD 1977 SC 153), Karamat Ali's case (1976 SCMR 138), Mst. Fazal Elahi's case (NLR 1984 Criminal 7), Allah Wasaya's case (1982 Pakistan S.C. cases 1482), and Muhammad Iqbal's case (NLR 1991 Criminal 239).
It is a settled principle of law that accused can be convicted on his own statement even if the prosecution evidence is rejected. See Fazal Hussain's case (PLD 1958 Lahore 142) & Baboo's case (PLD 1961 Karachi 240).
The learned High Court keeping in view all the circumstances had already reduced the sentence from death to life imprisonment. The learned counsel of the parties have failed to point out that discretion exercised by the learned High Court amounted to mis-carriage of justice.
In view of what has been discussed above, we do not find any force in both these petitions which are dismissed. Leave to appeal declined.
(Aliya Sattar Chaudhry) Petition dismissed.
PLJ 2006 SC 1032 [Review Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan & Syed Jamshed Ali, JJ.
FAZAL-ULLAH SIDDIQUI--Appellant
versus
STATE--Respondent
Crl. Appal No. 62 of 2003, decided on 28.4.2006.
(Against the order dated 18.10.2002 passed by Sindh High Court, Karachi in Accountability Appeal No. 22/02).
National Accountability Ord. 1999 (XVIII of 1999)--
----Ss. 9 & 10--Misappropriation--Land Acquisition officer--Acquisition of land--Rendering of awards--Avoidance and acting on forged B-Forms--Failure to get measurement of acquired land--Illegal payments--Huge loss to exchequer--Conviction and sentence--Culpability--Question of--on award files were only photocopies of notifications but since these were before appellant, these should have atleast put appellant to an inquiry as to area which was actually acquired because B-Forms on record of these files were not in accordance with these copies of notifications of acquisition--Therefore, unless notifications of acquisition of land and B-Forms were reconciled awards could not have been rendered/announced by appellant--He clearly misused his authority--On basis of wards rendered by appellant, payment was made to land owners exactly of same amounts which were awarded by appellant--Appellant should not have acted on B-Forms which were forged and area given therein was not got verified by appellant from Director, Settlement and Land Record--Fact that award was not challenged could hardly be ground to claim immunity from being prosecuted as circumstances of case found by two Courts and noted by Supreme Court, leave no manner of doubt that appellant did not act in good faith--Nothing done without due care and caution can be accepted as having been done in good faith--Minutes of meeting of land acquisition committee being relied upon did not, in any manner authorize appellant to grant compensation for land which had not been acquired--Evidence brought on record read with presumption u/S. 14 of the said Ordinance established charge against appellant beyond any reasonable doubt--Although appellant rendered awards but it is in evidence that before making actual payments to land owners 141 B-Forms were sent to Director, settlement and land Record for Verification but certain queries were raised by said office and before these were settled, payment was released to land owners--Fact remains that actual disbursement on basis of awards rendered by appellant was made after appellant's, transfer from post of Land Acquisition Officer--Held: It is mitigating Circumstance--Sentence undergone will meet ends of justice--Appeal dismissed. [Pp. 1039, 1040 & 1041] A, B, C, D, E, F, G & H
Mr. Azizullah Sheikh, ASC for Appellant.
Ch. Naseer Ahmad, ASC and Mr. Arshad Ali Ch., AOR for Respondent.
Date of hearing: 4.4.2006.
Order
Syed Jamshed Ali, J.--The conviction and sentence recorded against the appellant by the learned Accountability Court Sindh, Karachi, dated the 11.3.2002 was affirmed by the learned Sindh High Court with slight modification in the sentence vide impugned judgment dated 30.10.2002. Leave was granted vide order dated 27.2.2003 with the following order.
"After hearing Mr. Aziz Ullah Sheikh, ASC and going through the contents of the judgment impugned, we are of the view that the entire case requires re-examination of evidence, particularly, with regard to the culpability of the petitioner. Furthermore, in order to ascertain as to whether the procedure followed by petitioner could have made him responsible for the offences under Section 10 of the NAB Ordinance. To reappraise the entire evidence, we grant leave to appeal which should be heard on the basis of same record."
On a complaint made to the Minister of State for Water and Power, that funds allocated for the Left Bank Out-Fall Drain WAPDA (hereinafter refer to LBOD), had been misappropriated, an inquiry committee was constituted. On the basis of its report a detailed inquiry was conducted by the F.I.A. and ultimately by the NAB as a result of which four public servants (Two Project Directors), the petitioner who was Land Acquisition Officer, Mangharam Sherma, successor of the petitioner and fifty two, Land owners were indicated for an offence under Section 9 of the National Accountability Ordinance (No. XVIII) 1999. According to the report under Section 173 of the Code of Criminal Procedure, the Government had sustained a total loss of Rs. 3,81,81,932/- on account of illegal payment of land which was not acquired or did not belong to any private individual and this over payment was because of the forged B-Forms (indicating measurement of the acquired land). Precisely, the allegation was that although land measuring 192.37 acres was actually acquired yet payment was made for 716.20 acres. Thus, excess payment was made for 523.23 acres.
In this case, awards exhibits 52/2 to 55/99 (98 in number) were involved but an disputed fact is that the petitioner passed/rendered awards exhibits 55/77 & 55/87 (in all eleven awards).
On consideration of the oral and documentary evidence of the parties, the petitioner was convicted under Section 10 of Ordinance No. XVIII 1999 and sentenced to undergo five years R.I with a fine of rupees Sixty lacs and in default to undergo simple imprisonment for two years. On his appeal to the learned High Court the sentence was reduced to 2« years and sentence in lieu of fine was reduced from 2 to 1 year. The benefit of Section 382 of Criminal Procedure of Code was also extended to the petitioner.
It may be noted here that the tenure of the petitioner as Land Acquisition Officer has been from 2.6.1994 to 20.11.1994 and all the awards were rendered by him on 4.10.1994. It is also not disputed by the prosecution that no payment was made during incumbency of the petitioner. We will like to add that three Official Co-accused absconded, 16 private land owners who were tried entered a plea-bargain the rest did not appear.
The learned counsel for the petitioner has vehemently contended that the learned two Courts have not attended to material prospects of the case and have either ignored material evidence or have misread it. His contentions are as follows:--
(i) No compensation was paid by the petitioner, therefore, he could not be held responsible for the loss caused to the Government exchequer.
(ii) While rending the awards the petitioner had acted upon the report of measurement jointly carried out by the local revenue department and the WAPDA officials.
(iii) No body had challenged the awards rendered by the petitioner under the provision of the Law.
(iv) According to the minutes of meeting of the land Acquisition Committee held on 11.9.1994, which was constituted under the direction of the Prime Minister, the Land Acquisition Officer was required to prepare the land statements and get it verified from the Mukhtar Kar and thereafter "general award under Section 15 of the land acquisition be prepared". The petitioner acted on this direction/decision.
(v) The contention based on this decision was that verification of the Director Settlement and Land Record was not necessary.
(vi) The learned High Court had also condemned the petitioner for having paid excessive amount as compensation although the said amount of compensation i.e. Rs. 50,000/- per acre was even settled by aforesaid Committee while the Mukhtar Kar had reported more than Rs. 50,000/- per acre as market price of the acquired land. Further, it has never been a charge against the petitioner that the compensation was determined dishonestly on the higher side.
On the other hand, the learned counsel appearing for the respondent (NAB) has defended the impugned judgments. He maintains that the matter stands concluded by concurrent findings of the learned two Courts that the charge against the petitioner stood proved. He contended that according to the Standing Order No. 12, issued by the Board of Revenue of the Sindh, the petitioner was required to get verification of the measurement of the acquired area, (B-Forms) from the Director Settlement and Land Records which the petitioner deliberately avoided and acted on forged forms B resulting into huge loss to the exchequer and even the land which was not acquired was said for on the basis of the awards rendered by the petitioner.
The submissions made by learned counsel for the parties have been considered and the record examined with their assistance. It will be appropriate to reproduce the charge against the petitioner:--
"That you Fazaullah Siddiqui S/o Mushtaq Ahmed Siddiqui during the period 1994 to 1996, were holding public office being Land Acquisition Officer in LBOD WAPDA Mirpurkhas Project, funded by the Government of Pakistan for construction of Sem Nala. You were entrusted the duties, to acquire the land for the project, verify the claims of the land effectees with the record of revenue, to ascertain the actual amount of claim and to pass the Awards for payment to the land effectees.
That you in collusion, connivance and collaboration with the absconding accused Hassan Zaeem Aftab and Muhammad Kaleem, Farooqi, the Project Directors, mangharam Sherma, Land Acquisition Officer, with mala fide intention and common object to provide illegal gains and benefits to co-accused misused your authority and passed the Awards on the basis of forged/fake documents without getting the same verified from the concerned authorities and thereby caused the loss to the public exchequer to the tune of Rs. 3,81,81,932/- and thus such acts you have committed the offence of corruption and corrupt practices as defined in Section 9 of National Accountability Bureau Ordinance, 1999 punishable under Section 10 of National Accountability Bureau Ordinance 1999."
(i) Ex. 55/77
It is the file of Award No. 15 dated 4.10.1994, and is for 3.15 Acres comprising:
Field No. Acres
83/2 0-20
83/3 0-30
95/12 0-35
95/13 0-30
95/14 0-20
However, according to notification (a copy of the relevant extract of which is on the file of this award), except land measuring, 0-31, Acre no other land from the above described area was acquired. Thus, there was an excess of 2.24 Acres.
(ii) Ex 55/78
It is the file of Award No. 13 dated 4.10.1994 for an area measuring 10.20 Acres comprising:
Field No. Acres
68 6-05
10-20
However, according to the copy of the Notification (which is on the record of this award file) the area acquired was as follows:
Field No. Acres
68 0-33
69 0-37
1-30
Thus, an excess of 8.30 Acres
(iii) Ex 55/79
It is the file of Award No. 9 dated 4.10.1994 for an area measuring 1-34 Acres. Photo-copies of the covering letter and of Form-B are on the record. No Notification is on this award file.
(iv) Ex 55/80
It is the file of Award No. 4 dated 4.10.1994 for 7.20 Acres. No Notification is on the record. Photo copy of covering letter dated 28.5.1994 and Form-B are on the record.
(v) Ex 55/81
It is the file of Award No. 5 dated 4.10.1994 for 9-09 Acres. Photo-copy of covering letter and Form-B are on the record. According to an extract from Notification dated 21.2.1994 on the record of this award file, the area in the award and area in this Notification is as follows:
Field No. Awarded Area Area in the Notification
46 3-11 0-4
47 3-21 Nil
59 1-37 0-12
60 0-20 1-0
9.09 1-16
Excess:- 17.33 Acres
(vi) Ex 55/82
It is the file of Award No. 3 for 21-02 Acres. An extract from the copy of Notification dated 3.1.1994 is there. The area in the award and this Notification is as under:
Field No. Awarded Area Area in the Notification
25 8-02 Nil
28 6-01 0-39
38 6-01 5-11 (as 38/4)
20-4 6-0
Excess: 14.4 Acres
(vii) Ex. 55/83
It is the file of Award No. 10 dated 4.10.1994 for 7.28 acres. A copy of extract from Notification dated 3.1.1994 is on the record. The awarded area and the area given in the Notification is as under:
Field No. Awarded Area Area in the Notification
129/3 0-39 Nil
4 0-38 0-10
5 0-38 0-21
6 0-39 0-32
11 0-39 0-31
12 0-38 0-25
13 0-38 0-23
14 0-38 0-25
7.28 4.07
Excess:- 3-21 Acres
(viii) Ex. 55/84
It is the file of Award No. 3 dated 4.10.1994 in favour of Manzoor Ahmad for 21-02 acres. Award Ex 55/82 was in favour of Bashir Ahmad. Both awardees are real brothers. the area involved in both the award is the same and separate payments were made in both these awards.
Excess:- 21-2 Acres
(ix) Ex 55/85
It is the file of Award No. 6 dated 4.10.1994 for 15-0 Acres. B-Form is there. No Notification is on the file of this award.
(x) Ex 55/86
It is the file of Award No. 18 for 23-03 Acres. No Notification is on the record of this file.
(x) Ex 55/87
It is the file of Award No. 18 in favour of the same persons and exactly for the same area.
Excess:- 23.03 Acres
In seven awards (details given above), compensation for an excess area of 80-37 was awarded which was not acquired while in four cases, in absence of relevant Notifications, it could not be ascertained whether in these cases area awarded was or was not in excess.
According to the report under Section 173, Cr.P.C. the appellant had awarded compensation for an excess area of 71.36 Acres although on the basis of the award files, our conclusion is that the excess was 80.20 Acres. The investigating officer (PW 17) testified that he had verified the genuineness or otherwise of the B-Forms on these award files but these were found to be forged and bogus. PW 13, whose signatures purport to appear on the B-Forms on these award files, also categorically deposed that the said forms did not bear his signatures. We are quite mindful that on the award files were only photo copies of the notifications but since these were before the appellant, these should have atleast put the appellant to an enquiry as to the area which was actually acquired because the B-Forms on the record of these files were not in accordance with these copies of the notifications of acquisition.
Therefore, unless the notifications of acquisition of land and B-Forms were reconciled, the awards could not have been rendered/announced by the appellant. He clearly misused his authority.
As far as the contentions of the learned counsel for the appellant are concerned, all these pertain to factual domain. In any case none has merit to absolve him of the criminal liability. Taking the first, it may be noted that on the basis of the awards rendered by appellant, payment was made to the land owners exactly of the same amounts which were awarded by the appellant. As far as the second contention is concerned, in view of copies of the extracts of the notifications on the files of the awards, the appellant should not have acted on the B-Forms which were formed and the area given therein was not got verified by the appellant from the Director, Settlement and Land Record. As far as the third contention is concerned, the fact that the award was not challenged could hardly be a ground to claim immunity from being prosecuted as the circumstances of the case found by the learned two Courts and noted by us, leave no manner of doubt, that the appellant did not act in good faith. We will like to observe that nothing done without due care and caution can be accepted as having been done in good faith. This principle has statutory backing by virtue of Section 52 of the Pakistan Penal Code. Although, since the trial of the appellant was held under Ordinance No. XVIII of 1999, the definition aforesaid may not be stricto senso applicable to a trial under the said statute yet the principle is well recognized in the administration of criminal justice. The minutes of the meeting of the Land Acquisition Committee being relied upon did not, in any manner, authorize the appellant to grant compensation for the land which had not been acquired.
As far as the Contention No. (vi) is concerned, we have noticed that appellant was neither charged that the assessed excessive amount of compensation nor he was convicted and sentenced on that score. However, we will like to say that the observations of High Court in the impugned judgment do not have the effect of abrading the sustainability of the judgment.
The charge as framed against the appellant alleged an offence under Section 9(vi) of the Accountability Ordinance, punishable under Section 10 thereof. The evidence brought on the record read with the presumption under Section 14 of the said Ordinance established the charge against the appellant beyond any reasonable doubt. The findings of fact recorded by the learned two Courts below are based on evidence and, therefore, do not warrant any interference.
The question of substantive sentence has, however, attracted our attention. The appellant was arrested on 29.5.2001 and was ordered to be released on bail on 19.3.2005. Thus, he has been confined to the prison for a total period of about 22 months while the learned High Court had reduced the sentence to 2« years allowing him the benefit of Section 382-B Cr.P.C. It may noted that although the appellant rendered awards but it is in evidence (PW 17) that before making actual payments to the land owners 141 B-Forms was sent to Director, Settlement and Land Record for verification but certain queries were raised by the said office and before these were settled payment was released to the land owners. The fact remains that actual disbursement, on the basis of the awards rendered by the appellants, was made after appellant's transfer from the post of Land Acquisition Officer. We see it as a mitigating circumstance and are of the opinion that the sentence (including the benefit of Section 382-B Cr.P.C.) undergone will meet the ends of justice. We order accordingly. As far as fine of rupees sixty Lacs and sentence of one year in default is concerned, it is maintained. The appellant is, however, allowed a period of two months to deposit the fine and in case he fails to do so he shall be taken into custody to serve the imprisonment in lieu of fine.
Accordingly, this appeal is dismissed with the modification of substantive sentence of imprisonment as indicated above.
(Aliya Sattar Chaudhry) Appeal dismissed.
PLJ 2006 SC 1041 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan & Syed Jamshed Ali, JJ.
Raja MUHAMMAD IRSHAD--Petitioner
versus
MUHAMMAD BASHIR GORAYA etc.--Respondents
Crl. Petition No. 122 of 2005, decided on 14.4.2006.
(On appeal from the judgment/order dated 21.2.2005 passed by Peshawar High Court, Abbottabad Bench in Crl. Misc. 385/2004).
(i) Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 324, 109, 120B & 34--Criminal Procedure Code, 1898 (V of 1898), Ss. 164 & 161--Development of enmity--Confessional Statement--Grant of bail by High Court--Challeng to--Contradiction in FIR and confession, but at this stage this cannot be discarded--High Court had wrongly termed it as extra judicial confession which is incorrect statement of fact--Further stated that accused has retracted confession, he submitted an application before sessions Judge retracting same confession which is u/s 164 Cr.P.C. cannot be brushed aside because its volunteerness and truthfulness shall be taken into consideration by Court at time of trial--However, confessional statement of co-accused prima facie had connected respondent with commission of offence--High Court was not justified in any manner to discard this piece of evidence at bail stage--There was assertion before High Court that deceased had allegedly filed complaint with NAB against respondent and fact was disclosed by widow of deceased in her statement which she got recorded u/s 161 Cr.P.C.--If prosecution evidence right from FIR till recording of confession is considered cumulatively, no difficultly can be faced in holding prima facie involvement of respondent in commission of offene--Prima facie, evidence brought on record by prosecution has established that conspiracy was hatched by respondent to eliminate deceased as relations between both of them have become so strain that if deceased had succeeded in furnishing before N.A.B. evidence of financial embezzlement of funds of university against respondent, he would gone behind bars--Reference in this behalf can be made to statement of co-accused who in so many words says that he was hired alongwith his brother-in-law by accused to assassinate deceased--Held: High Court had not rightly approached to issue by amalgamating act of abetment with conspiracy for commission of offence--Held further: Respondent was not entitled for grant of bail--Petition converted into appeal and allowed.
[Pp. 1046, 1047, 1048, 1049 & 1050] A, B, C, D, H, I & J
2004 SCMR 283, ref.
(ii) Words and Phrases--
----Words "abetment", & "conspiracy"--Distinction--As far as "abetment" is concerned, it is punishable as provided for original offence charged against principal accused falling within mischief of S. 109 P.P.C.; whereas conspiracy itself is an offence and person can separately charged with regard to conspiracy--There may be an element of abetment in conspiracy; it is something more than abetment--Whereas "criminal conspiracy" consists in agreement of two or more persons to do an unlawful act or to do lawful act by unlawful means--In cases of conspiracy better evidence than acts and statements of conspirators in pursuance of conspiracy is hardly ever available. [P. 1049] E, F & G
AIR 1961 SC 1241; 1971 SCJ 43; AIR 1974 SC 898 & 2006 SCMR 66, ref.
Mr. Mushtaq Ali Tahirkhaily, ASC and Ch. Akhtar Ali, AOR for Petitioner.
Sardar Latif Khan Khosa, ASC and Mr. Saeed Akhtar, ASC for Respondents.
Date of hearing : 14.4.2006.
Order
Iftikhar Muhammad Chaudhry, C.J.--This petition has been filed against the judgment dated 21st February 2005 passed by Peshawar High Court, Peshawar whereby concession of bail has been granted to respondent accused for offences under Sections 302, 324, 109, 120-B and 34 PPC, in a case registered vide FIR No. 353 of 2004, dated 18th September 2004 at Police Station Khanpur (Hairpur).
Precisely stating facts of the case are that on the fateful day PW-Raja Muhammad Irshad reported to Police in DHQ Hospital Haripur that he has been working as Driver with Raja Shiraz Kiani (deceased) Rector of Al Khayer University, Islamabad [herein after referred to as `the University']. He alongwith the deceased was travelling in Motor Car No. 4503-IDK, proceeding towards Abbottabad from Islamabad. Raja Sheraz Kiani (deceased) was sitting on the rear seat of the Car. When the car reached near Padni on Khanpur-Taxila Road, a Motor Car No. 748-IDG being driven by Muhammad Amin (since dead), who is driver of the respondent Muhammad Bashir Goraya came, wherein Saeed and Ehsan were sitting on front and rear seats respectively. Said motorcar started overtaking their car. Saeed and Ehsan opened fire at him and Raja Sheraz Kiani (deceased). He escaped by laying in the car while Raja Sheraz Kiani (deceased) got hit but to their firing and succumbed to his injuries.
It is important to note that in FIR he got mentioned that further details of the motive can only be disclosed by the heirs of the Raja Sheraz Kiani (deceased). Subsequently, PWs Mawajid Ali Kiani s/o Raja Sheraz Kiani (deceased), Raja Iltaf Hussain son of Raja Ghulam Hussain, brother of the deceased and Mst. Samina Kiani widow of Raja Sheraz Kiani (deceased) appeared before the police and disclosed that the respondent Muhammad Bashir Goraya had developed enmity with Raja Sheraz Kiani (deceased) who being Rector of the University, where former is working as Rector, objected on his grave financial misappropriation of funds of the University and this tussle was going on between Raja Sheraz Kiani (deceased) and respondent Muhammad Bashir Goraya. Mst. Samina Kiani widow of deceased categorically stated that her husband had expressed apprehension to his life at the hands of the respondent Muhammad Bashir Goraya, therefore, according to her, the respondent engaged to Muhammad Amin (since dead), his driver, Ehsan his brother-in-law and Saeed his nephew against a heavy amount for the purpose of committing the murder of her husband Raja Sheraz Kiani (deceased).
It is to be noted that immediately after the incident of firing, the Motorcar No. 7489-IDG, which was obtained on rent from a Car Dealer by Muhammad Amin, met with an accident in which Driver Muhammad Amin (co-accused) had died, whereas Ehsan sustained injuries. It is equally important to note that Ehsan made statement under Section 164 Cr.P.C. wherein he had confessed his guilt and attributed the act of firing upon Driver Muhammad Amin and Saeed and had also supported to the version of legal heirs of the deceased Raja Sheraz Kiani, concerning enmity and hatching conspiracy of killing him. The respondent was accordingly arrested and subjected to interrogation. His request for grant of bail was declined by Judicial Magistrate and Sessions Judge, Haripur on 29th November 2004 and 7th December 2004, respectively. However, the learned High Court vide impugned judgment released the respondent on bail. As such instant petition for leave to appeal has been filed.
Before dilating upon the respective contentions of the parties' counsel, we consider it appropriate to reproduce herein below following para from the judgment of the High Court:--
"On the following day the legal heirs of deceased namely, Mawajid Ali Kiani (son) and Raja Iltaf Hussain (brother) in their police statement recorded on 19th September 2004 charged the petitioner for abetting the murder of deceased and advanced motive that the petitioner, Pro-Chancellor of Al-Khayer University was involved in embezzlement of funds to the extent of lacs of rupees and deceased had make complaint to NAB and was in the process of collecting proof of said misappropriation which annoyed petitioner, who hatched conspiracy of killing the deceased and got it executed through his driver/security guard Amin and his relatives Ehsan and Saeed by giving huge amount to them. Similarly, the wife of the deceased also recorded her police statement on 28.4.2004 and on the basis of same alleged motive charged petitioner for abetting the murder of her husband.
Ehsan, who was arrested on 19th September 2004 and again on 23.9.2004, made extra-judicial confession to police after eight (8) days of arrest. He, while in custody, led the police to the place where he had thrown the rifle after the occurrence. The Police, on 26.9.2004 at his pointation recovered 8 MM rifle. The police sent the empties recovered from the spot and the rifle at the pointation of Ehsan to the FSL and received its report in the positive. The piece of bullet recovered from the deadbody of the deceased was not sent to the FSL. Ehsan on 27.9.2004 made exculpatory judicial confession in which he attributed the role of firing at the deceased to Amin (dead). He also disclosed that Amin had told him that he had been killing deceased at the instance of petitioner."
The learned High Court observed that except the motive, retracted exculpatory judicial confession of Ehsan and the charge of abetment and conspiracy, leveled by the legal heirs of deceased on the second day of occurrence, there is no other evidence against the respondent.
Learned counsel appearing for petitioner contended that:--
(a) Learned High Court while granting bail to the respondent Muhammad Bashir Goraya, had appreciated the facts of the case in depth, contrary to settled principles applicable at the time of considering the application for release of an accused on bail under Section 487 (1) Cr.P.C.
(b) Inasmuch as, record of the case was misread and important incriminating material available against the respondent has been ignored.
(c) Learned High Court has failed to make distinction between the abetment and conspiracy as it has been defined under the law.
(d) Respondent being an influential person, after his release, is tempering with the evidence, therefore, the concession of bail extended to him deserves to be recalled.
Learned Additional Advocate General supported the counsel for petitioner and added that in given facts and circumstances of the case, respondent was not entitled for grant of bail.
Learned counsel appearing for respondent-accused, however, stated that:--
(i) Prosecution has failed to procure sufficient incriminating evidence warranting the detention of respondent for an indefinite period, without any justification because ultimately, there is no chance of convicting him for the commission of offence.
(ii) There is no evidence to prima facie prove that respondent has abetted commission of offence.
(iii) This is consistent practice of this Court that once bail is granted to a person, then it is not to be cancelled ordinarily.
Learned counsel made a statement at the bar that during subsequent investigation, the respondent has been found innocent, therefore, his bail may be kept intact.
We have heard learned counsel for both the sides and have perused the record so made available. It is an admitted fact that Raja Sheraz Kiani (deceased) was working as Rector of the University at the time of incident whereas respondent Muhammad Bashir Goraya was its Pro-Chancellor. Both of them allegedly have developed differences with each other. Raja Sheraz Kiani (deceased) had submitted representation/ application to NAB for taking action against respondent on account of his financial misappropriation of the funds of the University. This point was argued before the High Court as it is evident from the relevant para, which has been reproduced herein above. Learned counsel appearing for petitioner had also referred to copy of the representation, which was submitted by Raja Sheraz Kiani (deceased) to NAB alongwith certificates.
It is to be noted that Muhammad Amin (dead) had hired the Car Bearing No. 7489-IDG on 17th September 2004 for two days, therefore, was bound to return it on 19th October 2004. Statedly, co-accused Ehsan and Seed, are his brother-in-law and nephew, respectively. Muhammad Amin was driver of respondent and was an employee of the University. It is a settled principle of law that while considering the request of the accused for his release on bail, a deep appreciation of evidence is not called for and the Court seized with the matter in terms of Section 497(1) Cr.P.C. is required to make tentative assessment of evidence available on record. As per the material so produced on record, PW Raja Muhammad Irshad (complainant), who was the driver of the deceased Raja Sheraz Kiani, in FIR has nominated to Muhammad Amin (dead) Ehsan and Saeed. The FIR was lodged promptly i.e. no sooner he reached in DHQ Hospital Mansehra. Since he had no knowledge about the motive or the enmity of the deceased, therefore, he left this aspect of the case to be explained by the heirs of deceased Raja Sheraz Kiani. Therefore, it could not be said that in the FIR, the fact of conspiracy for the commission of murder was withheld by him. The legal heirs of the deceased i.e. PWs Mawajid Ali Kiani, Raja Iltaf Hussain and Mst. Samina Kiani, who are son, brother and widow of deceased respectively, made statement in continuation of the FIR and disclosed conspiracy for the commission of murder by the respondent, within two days from the day of incident.
Learned counsel further contended that dead body of the deceased was identified by his son but at that time he had not disclosed the enmity of the deceased with the respondent.
In our opinion, this point is not required to be considered at this stage, because might the witness had some plausible explanation to offer in this behalf. Disclosing of conspiracy by these three witnesses in their statements, wherein they involved the respondent in the commission of murder of Raja Sheraz Kiani (deceased) is, prima facie, supported by Ehsan, who was arrested on 24th September 2004 and got recorded his statement on 27th September 2004, wherein he has, prima facie, involved the respondent in the commission of murder but had attributed the act of firing to Muhammad Amin (dead). The statements of witnesses give rise to two important questions. Firstly; whether at this stage, such evidence can be used against the respondent in view of the provisions of Article 43 of the Qanun-e-Shahadat Order. Answer to this proposition lies in the case of Javed Masih v. State (PLD 1994 SC 314), just to form a, prima facie, opinion because we are conscious of the fact that Article 43 of the Qanun-e-Sahahdat Order is distinct from the provisions of Section 27 of the repealed Evidence Act. As now the confession of a co-accused can be used as circumstance and not as an exclusive evidence for the purpose of recording of the conviction. Besides, the judgment which has been referred to herein above also pertains to final determination of the case for the purpose of considering the same as material confession of co-accused cannot be used, but for cancellation of bail, such statement, implicating the accused, can be validly taken into consideration. Reference in this behalf can be made to Naseem Malik v. The State (2004 SCMR 283). We are conscious of the fact that there is a contradiction in FIR and confession but at this stage, this cannot be discarded. Learned High Court, however, had wrongly termed it as `extra judicial confession', which is incorrect statement of fact. Further it is also stated that the accused has retracted the confession as on 8th October 2004, he submitted an application before the Sessions Judge retracting the same. Learned counsel appearing for respondent in this behalf explained that no sooner he got opportunity, he filed an application in this behalf before the Sessions Judge. In our considered opinion, even for this reason, the confession which is under Section 164 Cr.P.C. cannot be brushed aside because its volunteer-ness and truthfulness shall be taken into consideration by the Court at the time of trial. However, confessional statement of Ehsan, prima facie, had connected the respondent with the commission of offence. We failed to understand as to why the learned High Court termed it to be extra judicial confession, knowing well that it was recorded before the Judicial Magistrate under Section 164 Cr.P.C. Be that as it may, learned High Court was not justified in any manner to discard this piece of evidence at the bail stage. We may, however, observe that actually it had happened on account of non-reading of record carefully. In addition to this, there was assertion before the High Court that Raja Sheraz Kiani (deceased) had allegedly filed a complaint with the NAB against the respondent and this fact was disclosed by Mst. Samina Kiani, widow of deceased in her statement which she got recorded under Section 161 Cr.P.C. before the Police. If the prosecution evidence, right from the FIR till the recording of confession, is considered cumulatively, no difficulty can be faced in holding, prima facie, involvement of respondent in the commission of offence.
Learned counsel for petitioner also relied upon Gulzar Hassan Shah v. Ghulam Murtaza (PLD 1970 SC 335) to contend that while dealing with the application under Sections 497 and 498 Cr.P.C. the High Court is not required to enter into the merits of the case or the plea of defence for arriving at the conclusion whether the accused her been guilty of an offence punishable with death or transportation for life; the only requirement is whether reasonable grounds exists tending to connect the accused with crime. According to him if these principles are followed, the bail is liable to be cancelled. Similarly while relying upon the case of Iqbal Hussain v. Abdul Sattar (PLD 1990 SC 758), he argued that learned High Court has failed to notice all the relevant circumstances of the case and misread the record, as such fallen into error, therefore, the bail granted to respondent is required to be cancelled. He also relied upon Nazir Ahmad v. Muhammad Ismail (2004 SCMR 1160), wherein a very important principle of law has been highlighted concerning the cancellation of the bail namely; "for cancellation of bail strong and exceptional grounds are required; it is to be seen whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice."
Learned counsel appearing for respondent stated that the principles highlighted in the judgments being relied upon by the petitioner's counsel are not attracted because the High Court on having taken into consideration the material available on record had granted bail to respondent and discretion of this Court to cancel the bail under Section 497(5) Cr.P.C. is pari materia with the principles, applicable for setting aside the order of acquittal. In support of his contention he relied upon Malik Muhammad Younas v. Umar Hayat (NLR 1998 Criminal 425).
In our opinion, this judgment perhaps would not help him in view of the fact that this Court had declined to grant leave to appeal and had not announced or pronounced the principle of law in this behalf. So far as the judgment in the case of Malik Muhammad Younas (ibid), relied upon by the learned counsel is concerned, in this judgment learned Division Bench of the
Peshawar High Court granted bail to the accused who were implicated on the basis of confession of their co-accused. In our opinion, this judgment need not to be discussed in presence of the latest law on the subject in the case of
Naseem Malik (ibid). Learned counsel also relied upon Mehr Ghulam Nabi v.
Muhammad Shafiq and another (PLJ 1979 SC 202), wherein this Court declined to cancel the bail in view of circumstances, leading to misuse of concession of bail by the accused and held that such circumstances cannot be made basis for reversal of impugned order of bail. In our considered opinion, this judgment is not attracted, as here bail has been granted to respondent by misreading the record and ignoring the material, which, prima facie, is sufficient to connect him for the commission of offence. Learned counsel next relied upon Shukat
Hussain v. The State (1995 SCMR 1249) and highlighted the principle regarding the grant of bail i.e. term reason to believe' can be classified at a higher pedestal than mere suspicion and allegation but not equivalent to proved evidence; even the strongest suspicion cannot transform inreason to believe'.
As it has been pointed out herein above that prima facie, the evidence brought on record does not involve the respondent on the basis of suspicion but had furnished strong reasons to believe that he is involved in the commission of offence, therefore, the judgment relied upon by the learned counsel had not advanced his case.
Learned counsel for respondent next contended that admittedly the respondent was not present at the time of commission of offence nor he had instigated the accused persons in presence of prosecution witnesses to kill him, therefore, the cases where the allegation is only of conspiracy, the bail granted to an accused deserved to be maintained by this Court. In this behalf he relied upon Amanullah Shah v. State (PLD 1996 SC 241) Relevant para from the judgment is reproduced herein below:--
"4. Being conscious of the principle that considerations for cancellation of bail granted by a Court of competent jurisdiction are quite different, we carefully attended to the arguments addressed by the learned counsel for the parties. In the instant case the petitioner was not present at the time of occurrence, so had caused no injury to the deceased. The allegation against him are that one hour before the occurrence he, in the presence of Muhammad Rafique and Noor Hussain PWs instigated Irshad Ahmed to eliminate the deceased the deceased. In the FIR it has been stated:--
A perusal of above para indicates that the facts note therein are quite distinct and different from the facts of the case in hand. Without dilating upon the same in depth, it is to be noted that, prima facie, evidence brought on record by the prosecution has established that conspiracy was hatchet by the respondent to eliminate Raja Sheraz Kiani (deceased) as relations between both of them have become so strain that if the deceased had succeeded in furnishing before NAB the evidence of financial embezzlement of the funds of the University against the respondent, he would gone behind the bars. Thus for such reason, it was not necessary for him to be present at the time of incident. Reference in this behalf can be made to the statement of Ehsan, who in so many words says that he was hired alongwith his brother-in-law by the accused to assassinate deceased.
abetment' andconspiracy'. As far as abetment' is concerned, it is punishable as provided for the original offence, charge against the principle accused, falling within the mischief of Section 109 PPC; whereasconspiracy' itself is an offence and person can separately charged with regard to conspiracy'. In this behalf in State of Andhra Pradesh v. Kandimalla Subhaiah and another (AIR 1961 SC 1241) it has been held that "there may be an element of abetment in conspiracy; it is something more than an abetment." Whereascriminal conspiracy' has been defined in Hulsbery Laws 4th Edition, Vol. 11 para 58 page 44 as `conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment of which is imprisonment or fine or both in the discretion of the Court." Likewise, in the case of Noor Muhammad Yusuf Momin v. The
State of Maharashtra
(1971 SCJ 43), Indian Supreme Court observed as follows:--"Like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other facts, constitute relevant material.
Similarly in Bhagwandas Keshwani, etc. v. State of Rajasthan (AIR 1974 SC 898), it is held that "in cases of conspiracy better evidence than the acts and statements of conspirators in pursuance of the conspiracy is hardly ever available."
Thus keeping in view this principle, we are of the opinion that learned High Court had not rightly approached to the issue by amalgamating the act of abetment with conspiracy for the commission of offence, therefore, for this reason alone, the impugned judgment deserves to be set aside.
Learned counsel then stated that bail of the respondent cannot be cancelled merely for the reason that on the basis of evidence two opinions are possible, one in favour of the State and the other in favour of accused, therefore, accused would be entitled for the benefit of doubt. In this behalf he relied upon Suba Khan v. Muhammad Ajmal (2006 SCMR 66).
It is not necessary to discuss this aspect of the case because we are not examining the evidence for the purpose of forming another opinion but it has been taken into consideration with reference to non-reading of the record by the learned High Court and ignoring of some important pieces of evidence, which were sufficient to hold that, prima facie, respondent is involved in the commission of offence.
The cumulative effect of the evidence and the discussion, made herein above, leads us to conclude that the respondent was not entitled for grant of bail, as such impugned order is not sustainable under the circumstances of the case.
Thus for the foregoing reasons, impugned judgment dated 21st February 2005 passed by the Peshawar High Court, Abbottabad Bench is set aside. Concession of bail granted to respondent Muhammad Bashir Goraya S/o Taj Din Goraya is recalled. He is directed to surrender before the Sessions Judge Haripur, failing which his attendance shall be procured through sureties, if need be.
Petition is converted into appeal and allowed.
(Aliya Sattar Chaudhry) Petition allowed.
PLJ 2006 SC 1050 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ.
ALLAH BAKHSH--Appellant
versus
STATE--Respondent
Crl. Appeal No. 227 of 2003, decided on 23.1.2006.
(On appeal from the Judgement dated 31.5.2002 of the Lahore High Court, Lahore in Crl. Appeal No. 685 of 2000).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviciton and sentence--Appeal against--Had deceased not died as result of firing by accused, there was no accasion or reason for complainant the real brother of deceased to falsely involved accused--No inherent defect or material lacuna in evidence of both witnesses whose presence at site has been established beyond any reasonable shadow of doubt--Case of accused is distinguishable and not at par with that of his co-accused since acquitted, therefore trial Court neither acted illegally nor arbitrarily in extending benefit of doubt to them--Held: Prosecution has fully proved its case by producing cogent and convincing evidence to extent that it was accused who fired at deceased which hit on his chest--Appeal devoid of force is dismissed. [P. 1053] A, B, C & D
Mr. M. Javed Aziz Sindhu, ASC for Appellants.
Ch. Dil Muhammad Tarar, ASC for State.
Date of hearing : 23.1.2006.
Judgment
Abdul Hameed Dogar, J.--This appeal by leave of this Court is directed against the judgment dated 31.5.2002 of a learned Judge in Chambers of the Lahore High Court, Lahore, whereby Crl. Appeal No. 685 of 2000 filed by appellant Allah Bakhsh was dismissed and the conviction and sentence awarded by the trial Court under Section 302(b) PPC sentencing him to suffer imprisonment for life and to pay Rs. 50,000/- as compensation was maintained.
Briefly, stated that facts of the case are on 5.3.1998 at about 10.00 p.m. complainant Muhammad Sarwar, his brother deceased Rashed Ahmed, PWs, namely, Abid Iqbal, Javed and Muhammad Fayyaz were sitting at the Dera of Abid Iqbal, the paternal cousin of the complainant. In the meanwhile acquitted accused Muhammad Aslam, Khizar Hayat and Ahmed came there and after seeing the complainant, deceased and others sitting together, went away. After sometime, appellant duly armed with .12 bore gun reached there and called the deceased out side and fired at him who succumbed to the injuries. The incident was witnessed by the above mentioned PWs.
The motive behind the incident was that a few days prior to the occurrence a dacoity was committed in the house of uncle of complainant and the deceased suspected that the appellant and his relatives were involved in the said dacoity.
The complainant Muhammad Sarwar being dissatisfied with the result of the investigation filed the private complaint. The Court summoned the appellant as well as acquitted accused Muhammad Aslam Ahmad and Khizar Hayat to face trial.
At trial complainant produced as many as 8 witnesses, namely, Muhammad Safdar, Dr. Waqar Hamid, Medical Officer, Muhammad Shehbaz HC, Shan Muhammad F.C. Muhammad Saleem Draftsman, Noor Muhammad F.C., Muhammad Sarwar and Abid Iqbal. Malik Muhammad Akram, DSP, Abdul Qadir DSP and Amir Masood Inspector, Gul Hamid, S.I. appeared as Court witnesses.
On autopsy, on 6.3.1998 Dr. Waqar-ul-Hassan found the following injuries on the person of deceased:
"A lacerated fire-arm wound of entry on right lateral side of chest 4 cm away and lateral to right nipple 3.5 cm x 3.5 cm, having inverted margins and circular in shape. Blackening present all around the wound with corresponding holes upon the shirt."
Petitioner and his acquitted accused in their respective statements recorded under Section 342 Cr.P.C. denied the case of the prosecution and claimed innocence. They neither examined themselves on Oath as required under Section 340(2) Cr.P.C. nor led any evidence in defence.
On conclusion of trial, the learned trial Court acquitted accused Muhammad Aslam, Ahmad and Khizer Hayat from the charge of abetment. However, convicted the appellant under Section 392(b) PPC and sentenced him to imprisonment for life as Tazir. He was also directed to pay fine of Rs. 50,000/- as compensation under Section 544-A Cr.P.C. to the legal heirs of the deceased or in default to further undergo R.I. for six months.
Being aggrieved appellant challenged the judgment in appeal before the learned High Court by filing Crl. Appeal No. 685 of 2000 whereas complainant Muhammad Sarwar filed Crl. Petition No. 28 of 2000 against the acquittal of Muhammad Aslam, Ahmad and Khizar Hayat which were dismissed vide impugned judgment.
On 24.6.2003, leave to appeal was granted by this Court to consider the following points:
"There are two versions on record. According to some witnesses it was "qatal-e-amd", while the investigating agency held it as "qatal-e-khata". Scrutiny of the evidence is required to reach the conclusion as to which of two versions is correct."
We have heard Mr. M. Javed Aziz Sindhu, learned ASC for the appellant and Ch. Dil Muhammad Tarar, learned ASC for the State and have gone through the record and the proceedings of the case in minute particulars.
It is mainly contended by the learned counsel for the appellant that the impugned judgment is erroneous, untenable in law and unjust. He maintained that the ocular evidence is contradicted by the medical evidence and suffers from material discrepancies. He pointed out that the case of the complainant is based on interested and inimical evidence as such it requires independent corroboration which is lacking in this case. Learned counsel further submitted that the case of prosecution as unfolded in the FIR was found false by the police, as such complainant filed private complaint. To substantiate the same he referred the evidence of CW-2 Abdul Qadir DSP Range Crime, who deposed in his statement that the appellant used to serve the complainant party as driver and body fraud. He also deposed that the complainant party used to report to aerial firing every night after said dacoity to scare the dacoits not to come to the complainant's village again. He also stated that the complainant party had purchased a new rifle and a double barrel gun and used to test those weapons outside their house. According to him, on reinvestigation of the case he reached the conclusion that death of the deceased occurred accidentally due to said firing. The witness also deposed that on 21.12.1998 he had directed the local police to submit supplementary charge sheet against the appellant alone under Section 319 PPC as such the case against appellant would fall within the ambit of `qatal-e-rhata' and not "qatal-e-amd". He lastly contended that on the same evidence co-accused of the appellant had been acquitted by the trial Court, therefore, the benefit of doubt should also have been extended in favour of the appellant.
On the other hand, learned counsel for the State controverted the above contentions and argued that the complainant has successfully proved its case as narrated in the complainant by him by producing unimpeacable and truthful account of eye-witnesses, namely, Abid Iqbal, Javed Iqbal and Muhammad Fayyaz. Irrespective of above the complainant has also proved the motive against the appellant on the factum that a few days prior, a dacoity was committed in the house of complainant's father and the deceased suspected the appellant for the same.
We do not agree with the contentions of the learned counsel for the appellant mainly for the reason that he has not been able to show any reason for his false implication. When examined his defence plea in juxtaposition to the eye-witness account furnished by PW-7 Muhammad Sarwar and PW-8 Abid Iqbal latter seems to be true as the appellant has miserable failed to prove his plea. Had the deceased not died as a result of firing by the appellant, there was no occasion or reason for the complainant the real brother of deceased to falsely involved the appellant. The appellant cannot be acquitted mainly on the ground that the prosecution has not been able to bring on record the report of Forensic Science Laboratory on the factum of recovery of gun from the appellant.
The ocular testimony furnished by PW-7 Muhammad Sarwar PW-8 Abid Iqbal was found to be trustworthy by the trial Court as well as the learned High Court. There appears to be no inherent defect or material lacuna in the evidence of both the witnesses whose presence at the site has been established beyond any reasonable shadow of doubt. The prosecution has fully proved its case by producing cogent and convincing evidence to the extent that it was the appellant who fired at the deceased which hit on his chest. Though the witnesses were cross-examined at length yet their evidence was not shattered at all. Both the eye-witnesses have categorically stated in their statements that the deceased sustained fire-arm injury on his chest. At any event, case of petitioner is distinguishable and not at par with that of his co-accused since acquitted, therefore, the learned trial Court neither acted illegally nor arbitrarily in extending the benefit of doubt to them. The learned counsel for the petitioner has failed to point out any illegality or irregularity in the impugned judgment warranting interference by this Court.
B
(Aliya Sattar Chaudhry) Appeal dismissed.
PLJ 2006 SC 1054 [Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Raja Fayyaz Ahmed,JJ.
FAQIR HUSSAIN--Petitioner
versus
STATE--Respondent
Jail Petition No. 246 of 2004, decided on 16.1.2006.
(On appeal from Lahore High Court, Lahore in Crl. Appeal No. 110/J-1996 dated. 20.9.2001).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Direct evidence of unimpeachable character--Conviction and sentence--Leave to appeal--Prayer for--Eye witnesses have no personal grudge or enmity or motive to substitute him for unknown culprit and they while deposing quite consistently in straightforward manner have also corroborated each other on each material point and further their testimony was also supported by medical evidence as well as attending circumstances to be relied upon to maintain conviction--Counsel for accused has not been able to point out any misreading or non-reading of evidence or any legal or factual infirmity in conclusion drawn by two Courts regarding guilt of accused calling for interference of Supreme Court--Held: No exception could be taken to judgment of High Court--Petition dismissed and leave refused. [P. 1056] A & B
Syed Ali Hassan Gillani, ASC for Petitioner.
Mr. Tariq Bilal, ASC for Respondent.
Date of hearing : 16.1.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This jail petition has been directed against the judgment dated 20.9.2001 passed by a Division Bench of Lahore High Court, Lahore, whereby the criminal appeal filed by the petitioner against the conviction and sentence of death awarded to him under Section 302(b) PPC by learned Additional Sessions Judge Nankana Saib, district Sheikupura, was dismissed.
The occurrence in the present case had taken place at 5:30 a.m. on 3.7.1994, on the grocery shop being run by Nazir Ahmed, deceased, in village Gujjar Town Bucheki in the area of Police Station Bara Hhar, district Sheikhupura and case was registered within two hours on the same day on the statement of Haji Fazal Din (complainant). The sad incident was the result of altercation taken place a day earlier between the petitioner and Nazir Ahmed, deceased at his shop. The complainant, Haji Fazal Din (PW5) alongwith Falak Sher (PW 6) and Ahsan, (given up PW) went to see Nazir Ahmed at his shop to inquire from him about the last day incident and as soon as they reached near the shop of Nazir Ahmed, the petitioner, armed with Churri, suddenly appearing at the scene within their sight, having inflicted three successive churri blows to the deceased on his left arm, left hand and abdomen, ran away with churri from the place of occurrence. The deceased was taken to the hospital for medical aid but he succumbed to the injuries. The motive for the occurrence as stated was that a day earlier, deceased objected to the standing of petitioner in front of his shop as females also used to make purchases from the shop whereupon petitioner having picked up a quarrel with the deceased, extended him threats of dire consequences.
The ocular account was furnished by Haji Fazal Din (PW.5) complainant of the case and Falak Sher (PW 6). Dr. Muhammad Aslam (PW 1) having conducted postmortem examination of the deceased found three incise wounds on his person, declared the inquiry on the abdomen fatal to life.
The petitioner in his statement under Section 342 Cr.P.C. having denied the charge, pleaded false implication due to enmity. The learned trial Judge having found the petitioner guilty of the charge, convicted and sentenced him as aforesaid and the learned Judges in the High Court in appeal filed by the petitioner maintained his conviction and sentence with conversion of fine into compensation under Section 544-A, Cr.P.C. payable to the legal heirs of the deceased and dismissed the appeal.
The learned counsel for the petitioner contended that the claim of eye-witnesses to have gone to the shop of deceased early in the morning to inquire about the last day's incident being not plausible, their presence at the spot at the time of occurrence was highly doubtful, therefore, it was not safe to place reliance on their testimony. Learned counsel argued that it was an unseen occurrence which took place during the night and the petitioner was substituted for unknown culprit for the reason that he had extended threats to Ahsan (given up PW), real nephew of complainant for having developed illicit relations with his wife. The learned State counsel, on the other hand has submitted that the charge of murder was proved against the petitioner through the direct evidence beyond any reasonable doubt and he would not deserve any leniency even in the matter of sentence.
The petitioner in his statement under Section 342 Cr.P.C. stated that:
"Ahsan PW (not produced) is a real nephew of the complainant, who had developed intimate relations with my wife. I shunted her out from my house and threatened Ahsan to take revenge of my family honour and repute prior to the alleged occurrence. After a few days, deceased Nazir Ahmad was killed by some unknown persons. He was a man of bad character and used to tease girls and was killed at night time. On asking of Ahsan, complainant party involved me falsely in this case due to unfounded suspicion, and enmity."
The medical evidence revealed that deceased was caused two injuries on left arm and one on the abdomen with sharp edged weapon and as per postmortem report of the deceased, the time between the death and injury was about two hours and between death and postmortem was 12 hours. The medical evidence thus supported the ocular account furnished by the quite natural and independent witnesses to the extent of time of occurrence, the nature of injuries and weapons used for causing the injuries to the deceased. The blood stained churri, which was used by the petitioner as weapon of offence, was recovered on third day of the occurrence at his instance and even if the evidence of recovery would have been excluded from consideration, the charge against the petitioner could be proved on the basis of direct evidence of unimpeachable character, truthful and confidence inspiring. Learned counsel for the petitioner, laid much stress on the point that motive set up by the prosecution, was not proved and in absence of motive, there was no reason for the petitioner to commit the crime and in any case, the extreme penalty of death was not warranted in the given circumstances. The contention has no substance as motive is not an essential ingredient to prove the charge as crimes are also committed without any motive whereas in the present case, motive set up by the prosecution was proved through the most reliable evidence of eye-witnesses. The learned counsel for the petitioner has not been able to show us any material on the record to suggest that the motive was false or the petitioner at the instance of Ahsan was involved in the case by the complainant. The eye-witnesses were present of village at a short distance from the shop of deceased and it was natural for them being closely related to the deceased to got to see him at his shop in the morning to inquire from him about the incident taken place in the last day evening at his shop. The eye-witnesses have no personal grudge or enmity or motive to substitute him for unknown culprit and they while deposing quite consistently in a straightforward manner have also corroborated each other on each material point and further their testimony was also supported by the medical evidence as well as the attending circumstances to be relied upon to maintain the conviction. The learned counsel for the petitioner has not been able to point out any misreading or non-reading of evidence or any legal or factual infirmity in the conclusion drawn by the two Courts regarding the guilt of petitioner calling for interference of this Court, and consequently, we would take no exception to the judgment of the High Court.
In the light of foregoing reasons, this petition, being without any substance is dismissed. Leave is refused.
(Aliya Sattar Chaudhry) Petition dismissed.
PLJ 2006 SC 1057 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Muhammad Nawaz Abbasi, JJ.
MUHAMMAD HUSSAIN--Petitioner
versus
STATE--Respondent
Jail Petition No. 344 of 2003, decided on 17.4.2006.
(On appeal from the judgment dated 7.5.2003 of Lahore High Court, Lahore passed in Murder Reference No. 64/1999 & Criminal Appeal No. 6-J/1999).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 & 324--Conviction and sentence--Challenge to--Though, in absence of any previous enmity, no corroboration is required yet testimony of as many as four eye-witnesses is fully supported by medico legal report of injured persons and postmortem reports of deceased persons--Blood was recovered from their respective places--Accused remained absconder for nine days and during investigation he led to recovery of crime pistol Ex.P-9 that matched with empties of .30 bore recovered from spot--It does not appeal to reason that within view of accused victims would be kissing and embracing each other in house of her own maternal aunt who happened to be her uncle's wife as well--One fails to comprehend as to how real culprits were left alive by angny assailant--It is not sufficient and forceful enough to dislodge unimpeachable version of eye-witnesses especially injured one whose injuries are admitted to have been caused by accused--Held: Accused had acted in highly desperate manner justifying no leniency--Petition dismissed. [Pp. 1059, 1060 & 1061] A, B, C & D
Mr. Arshad Ali Chaudhry, ASC for Petitioner.
Mr. M. Ilyas Mian, ASC for State.
Date of hearing : 17.4.2006.
Judgment
Sardar Muhammad Raza Khan, J.--Muhammad Hussain son of Siraj Din of Hamid Shah Colony, Depalpur, with reference to FIR 329 dated 20.7.1995 of Police Station Hujra Shah Maqeem, was tried by Additional Sessions Judge Okara Camp Depalpur under Section 302 PPC for the murder of Mst. Zubaida Bibi and Mst. Khurshid Bibi and also, under Section 324 PPC for effective attempt at the lives of Mst. Kausar Parveen (his wife) and Muhammad Ali.
At the close of trial he got convicted under Section 302(b) PPC on two counts and sentenced to death with compensation of Rs. 25,000/- under Section 544-A Cr.P.C. on each count; under Section 324 PPC he was sentenced to five years rigorous imprisonment with a fine of Rs. 10,000/- and a compensation of Rs. 5,000/- to the victim, Mst. Kausar Parveen; under Section 337-F(i) PPC, sentenced to daman of Rs. 5,000/- and imprisonment for six months as tazir. Daman was to be paid to the injured, Muhammad Ali. Through this jail petition, Muhammad Hussain, convict seeks leave to appeal.
The petition is time-barred by eighty-eight days. The reasons for condonation do not appear to be either true or plausible. The application also does not furnish any explanation for the delay of each and everyday. It is not a fit case where condonation be allowed in routine.
Merits of the case require a glance into the background under which the occurrence took place. Muhammad Hussain and Mst. Kausar Parveen were married to each other for about five years prior to the occurrence. A few days before the occurrence, they had quarreled and the husband belaboured Mst. Kausar Parveen, whereupon, Hafiz Sultan Ahmad, the father of the lady brought her to his house.
On 20.7.1995, Mst. Kausar Parveen had gone to pay a visit to the house of Mst. Zubaida Bibi, her maternal aunt. After performing Asr prayer, Hafiz Sultan Ahmad also joined them. Muhammad Hussain, convict while armed with a .30 bore pistol entered the house calling upon Mst. Kausar Parveen as to why she had left without his permission and that he would not spare her. Simultaneous therewith, he opened fire at Mst. Kausar Parveen, which landed at the abdominal area. Out of fear, she rushed inside when Muhammad Hussain fired a second shot hitting the lady on the back of shoulder. Mst. Zubaida Bibi intervened to save Mst. Kausar Parveen but Muhammad Hussain fired consecutive shots at her. Mst. Zubaida Bibi died on the spot. The inmates raised hue and cry attracting Muhammad Din to the spot who also witnessed the occurrence. Leaving Muhammad Ishaque to take care of the dead body. Hafiz sultan Ahmad alongwith Muhammad Din immediately chased accused Muhammad Hussain who, in turn, straight entered the house of Hafiz Sultan Ahmad. He also opened fire at Mst. Khurshid Bibi, the mother of Mst. Kausar Parveen, who was busy cooking. Having received injuries on different parts of the body, Mst. Khurshid Bibi also died on the spot. The hue and cry attracted Muhammad Ali also and all the three tried to apprehend the accused but he opened fire at Muhammad Ali as well hitting him on his left thigh. The complainant party retracted due to fear and so the accused found a chance to decamp. The aforesaid narration was made by Hafiz Sultan Ahmad in his report lodged at 6.30 p.m.
The relationship between the parties has already become clear. It may be added that Mst. Zubaida Bibi deceased, besides being the maternal aunt of Mst. Kausar Parveen also happened to be the wife of Muhammad Ishaque who is the real brother of the complainant, Hafiz Sultan Ahmad. Their houses are near to each other in the same vicinity. Complainant, Hafiz Sultan Ahmad, Mst. Kausar Parveen, Muhammad Ali and Muhammad Ishaque were examined as PW-2, PW-3, PW-4 and PW-5 respectively as eye-witnesses. In view of the relationship that they maintained and in view of the two places of occurrence, they happened to be the most natural witnesses. Out of them. Mst. Kausar Parveen and Muhammad Ali are seriously injured bearing the marks of occurrence on their person. Their consistent deposition could not be shattered at all by the defence in the cross-examination.
Though, in the absence of any previous enmity, no corroboration is required yet the testimony of as many as four eye-witnesses is fully supported by the medico legal report of Mst. Kausar Parveen and Muhammad Ali and the post-mortem reports of Mst. Zubaida Bibi and Mst. Khurshid Bibi. The blood was recovered from their respective places. The accused remained absconder for nine days and during investigation he led to the recovery of crime pistol Ex. P-9 that matched with the empties of .30 bore recovered from the spot. The report of Forensic Science Laboratory to that effect is at page-144.
The aforesaid is narrated only to emphasize that the prosecution has proved its case against the convict beyond any shadow of reasonable doubt, notwithstanding the fact that the occurrence has been admitted by accused in his statement under Section 342 Cr.P.C. the relevant portion whereof runs as under:--
"I am innocent. The prosecution has suppressed the true facts. The real facts are that Mst. Kausar Parveen PW had developed illicit connection with her cousin Muhammad Ali PW. On account of this illicit intimacy she used to leave my house. Mst. Kausar Parveen PW wanted to get divorce from me but I was not willing to do so. In pursuance of the said illicit intimacy with Muhammad Ali PW she had filed a suit for dissolution of marriage against me but it was withdrawn on account of the pressure of the punchayat, which was initiated at my instance. On the day of occurrence, Mst. Kausar Parveen PW left my house without my permission in order to meet her paramour Muhammad Ali. I went in search of her and reached the house of Mst. Zubaida Bibi. I saw Kausar Parveen and Muhammad Ali present inside a room in objectionable condition while they were kissing and embracing each other. Out of sudden and grave provocation as I had lost self-control I fired at Mst. Kausar Parveen and Muhammad Ali. In the meantime, Zubaida Bibi entered the house from outside on hearing the alarm and accidentally she sustained fire-arm injuries. Mst. Kausar Parveen also received fire-arm injuries. In order to save life Muhammad Ali PW went out of the house and I chased him. Muhammad Ali entered the house of Hafiz Sultan Ahmad PW where my mother-in-law was present. I fired at Muhammad Ali out of sudden and grave provocation, which had been caused due to the indecent act of Mst. Kausar Parveen and Muhammad Ali PW and in that firing Muhammad Ali was injured and Mst. Khurshid Bibi also sustained fire-arm injuries accidentally. I had no intention to injure Mst. Zubaida Bibi and Khurshid Bibi or to cause their death. I had admonished Kausar Parveen after seeing her in objectionable condition with Muhammad Ali but she had replied shamelessly threatening me to carry on illicit relations with Muhammad Ali. After the occurrence I went to the P.S. and informed about the occurrence but the police did not record the report on my version. I had also taken the plea of grave and sudden provocation before the police as my first plea during the investigation. After the registration of this case Kausar Parveen PW again filed a suit for dissolution of marriage against me which was decreed in her favour because I did not want to keep as a wife such a corrupt and shameless lady. Thereafter, the whole investigation was conducted in a false and fabricated manner and the same was not conducted at the spot by the I.O. himself but the same was carried out by some of his subordinate whose name he could not disclose even at the trial. All the documents of this case prepared during the investigation of this case was not the handwriting of the I.O. but was simply signed by the I.O. at the P.S. The whole investigation is one sided and the story was fabricated by the police in connivance with the complainant in order to falsely involve me in this false case by giving a touch of Qatl-e-amd".
Reiterating the same plea, Muhammad Hussain, convict also appeared as his own witness under Section 340(2) Cr.P.C. but declined to produce defence evidence. This brings us to a juncture where the occurrence is admitted but the version is changed. As a matter of abundant caution, it is to be sifted as to which version is plausible and inferable from the prosecution evidence and whether any plea favourable to the accused is available to him even if not pleaded specifically notwithstanding the fact that, in the instant case, the accused has come out with a specific plea giving a parallel story.
In the version of the accused, it is admitted that Mst. Kausar Parveen had left the house without his permission. That is what is mentioned in the FIR that the accused asked Mst. Kausar Parveen as to why she had left the house without his permission. The killing of two ladies and injuring Mst. Kausar Parveen and Muhammad Ali is also admitted by the accused in his statement. With regard to the veracity of the plea taken, it does not appeal to reason that, within the view of the accused, Mst. Kausar Parveen and Muhammad Ali would be kissing and embracing each other in the house of her own material aunt who happened to be her uncle's wife as well. One fails to comprehend as to how the real culprits were left alive by the angry assailant while two innocent ladies were killed.
We have gone through the evidence, wherefrom the plea of accused is not inferable. While appearing as witness under Section 340(2) Cr.P.C., he admitted in the cross-examination that after about two years of his marriage, he had come to know that Mst. Kausar Parveen had developed illicit relations with Muhammad Ali. It is amazing that he tolerated such known illicit relations for more or less three years. It does not appeal to logic and reason. Had it been true, he would have either divorced his wife or have killed her alongwith paramour long ago. It is again amazing that despite knowledge of illicit relations, he contested her suit for dissolution of marriage and persuaded her allegedly through punchayat to withdraw. The evidence of the prosecution juxtaposed to two statements of the accused indicate nothing but an effort of the accused to achieve some concession in the sentence, knowing very well that the prosecution case is proved otherwise. The parallel version is introduced for the above object only. It is not sufficient and forceful enough to dislodge the unimpeached version of the eye-witnesses, especially the injured one whose injuries are admitted to have been caused by the accused.
The parallel story advanced by the accused being implausible, we are of the considered view that it cannot be brought under consideration for mitigation of sentence in a case where two murders have been committed in addition to effective attempt at the lives of two others. The petitioner had acted in a highly desperate manner justifying no leniency. There being no merit in the petition, it is hereby dismissed and leave to appeal refused.
(Aliya Sattar Chaudhry) Petition dismissed.
PLJ 2006 SC 1061 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Muhammad Nawaz Abbasi, JJ.
MUHAMMAD RIAZ & 2 others--Petitioners
versus
STATE--Respondent
Jail Petition No. 244 of 2005, decided on 28.4.2006.
(On appeal from the judgment dated 26.4.2005 passed by Peshawar High Court Peshawar in Criminal Appeal No. 363 of 2004).
Control of Narcotics Substance Act, 1997 (XXV of 1997)--
----S. 9(c)--Constitution of Pakistan, 1973--Art. 185(3)--Appreciation of evidence--Appeal against conviction and sentence--Contraband charas and opium in form of blocks may not be conveniently carried in bandolier, rather as stated by PW-4, recovery of Charas and opium would certainly be in form of slabs--It was mentioned in complaint as well as in recovery memo prepared by PW-3 that opium and charas was recovered in blocks and 4 grams from each block was taken for chemical examination whereas in his statement in Court while disposing that four grams of charas and four grams of opium was taken from each piece of recovered charas and opium--Trial judge as well as Judge in High Court without taking notice of above defect in prosecution case, proceeded to determined quantum of punishment on basis of allegation of recovery of narcotics more than 10 kg from each female accused and consequently sentence of life imprisonment was awarded to all three accused--While taking into consideration that out of total recovered charas and opium quantity of two kg of charas and two kg of opium was proved as narcotics maintain conviction of accused but keeping in view circumstances of case in totality, petition converted into appeal and allowed with reduction of sentence of life imprisonment award to accused to 14 years R.I whereas sentence of other accused reduced to R.I. for 10 years--Appeal partly allowed. [P. 1064] A, B, C & D
Mr. Sardar Abdul Majeed, ASC for Petitioners.
Mr. M. Saeed Khan, Addl. AG for Respondent.
Date of hearing : 28.4.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 185(3) of the Constitution has been directed against the judgment dated 26.4.2005 passed by the Division Bench of Peshawar High Court, whereby criminal appeal filed by petitioners against the conviction and sentence of life imprisonment with fine of Rs. 25,000/- awarded to each of them by the learned Sessions Judge, Kohat exercising power of Special Court established under the Control of Narcotics Substances Act, 1997, was dismissed.
The short facts in the background are that Dost Muhammad Khan, S.I (PW.3) on the instruction of SSP, Kohat having arranged a raiding party on 22.8.2001 started checking of vehicles coming from Kohat side, at Khushal Garh and on interception of a flying coach No. 2573-BUC at about 10.30 am, recovered opium weighing 5 kg and charas weighting 6 kg, from the possession of Mst. Perveen Bibi and similarly opium weighing 7 kg and charas 3.50 kg from Mst. Kausar Perveen, petitioners herein who were traveling in the company of Muhammad Riaz (petitioner) husband of Mst. Parveen and brother of Mst. Kausar. The contraband charas and opium was being carried by these two petitioners in jacket type bandoliers worn by them underneath their shirts and Incharge raiding party having secured 4 grams from each block of recovered charas and opium in four separate sealed parcels sent the same to the chemical examiner for analysis and as per report of chemical examiner, the parcels contained opium and charas. The prosecution in proof of the charge against the petitioners, produced Dost Muhammad Khan, S.I. (PW-3) and Adil Niaz, Head constable (PW-4) who were members of raiding party and tendered the report of chemical examiner, sent by the Forensic Science Laboratory NWFP, Peshawar, in evidence. Munawar Khan, ASI (PW-2), on the complaint prepared by Dost Muhammad Khan (PW-3), registered the case and final report was submitted by Mosam Khan, SHO (PW-1) whereas, Jehangir Khan, another member of raiding party and marginal witness of recovery memo, was examined as Court witness. The petitioners in their statements under Section 342 Cr.P.C. denying the charge, pleaded innocence and the learned trial Judge having found them guilty of the charge for keeping in their possession huge quantity of narcotics while traveling in the public transport, convicted and sentenced them as aforesaid. The appeal filed by the petitioners in the High Court, was dismissed vide impugned judgment and they have filed this joint petition from jail before this Court.
Learned counsel for the petitioners pointing out contradiction and discrepancies in the statements of witnesses, contended that except the statement of the official witnesses, no other evidence, oral or documentary, was brought on record in proof of the charge so much so the driver or conductor of the vehicle or any passenger, was not examined in proof of the fact that petitioners while traveling in coaster, were arrested which would make the alleged recovery of charas and opium from the personal search of the two female accused doubtful and mere fact that Muhammad Riaz being closely related to them was traveling in their company, would not give rise to the presumption that he was responsible for transporting narcotics. Learned counsel argued that it is clear from the evidence that the opium and charas allegedly recovered from the possession of the petitioners was in the form of slabs and weight of one slab being not more than one kg, the samples of charas and opium prepared for chemical examiner, pertained only to one kg of charas and one kg of opium recovered from each female accused and as per report of chemical examiner, two kgs of narcotics would be deemed to have been recovered from the possession of each female accused, therefore, the sentence of life imprisonment was excessive.
Learned counsel appearing on behalf of State has contended that notwithstanding the discrepancies and contradictions pointed out by the learned counsel for the petitioners in the statement of witnesses, the recovery of narcotics from the petitioner was proved beyond any doubt and narcotics exceeding one kg would bring the case within the ambit of Section 9(c) of Control of Narcotic Substances Act, 1997, providing the sentence of death or imprisonment for life or imprisonment for a term which may extend to 14 years R.I with fine. The learned counsel, however, has not been able to satisfy us that the sentence less than life imprisonment could not be imposed in the present case.
The perusal of statements of the witnesses, namely Muhammad Khan, S.I. (SHO) who conducted raid, Adil Niaz, Head Constable (PW-4) and Jehangir Khan, Court Witness, who was also member of raiding party and marginal witnesses of recovery memo, would show that contention of learned counsel for the petitioners that out of total recovered charas and opium, only two kg of charas and two kg of opium as per report of chemical examiner, was proved as narcotics, is not without substance. Dost Muhammad, SI (PW-3) has stated that the recovered charas and opium was in blocks whereas, Adil Niaz, Head Constable stated that it was in the form of slabs and Jehangir Khan, Court Witness has said nothing that in what form the charas and opium was recovered. The contraband charas and opium in the form of blacks may not be conveniently carried in the bandolier, rather as stated by Adil Niaz (PW-4), the recovery of the charas and opium would certainly be in the form of slabs. It was mentioned in the complaint as well as in the recovery memo prepared by Dost Muhammad (PW 3) that opium and charas was recovered in blocks and 4 grams from each block was taken for chemical examination whereas in his statement in the Court while deposing that four grams of charas and four grams of opium was taken from each piece of recovered charas and opium he made an attempt to improve his statement to cover the lacuna in the prosecution case and material contradiction in the evidence. The perusal of record would show that learned trial Judge as well as the Learned Judge in the High Court without taking notice of the above defect in the prosecution case, proceeded to determine the quantum of punishment on the basis of allegation of recovery of narcotics more than 10 kg from each female accused and consequently, sentence of life imprisonment was awarded to all the three petitioners with the consideration that they were found transporting about 23 kg of the narcotics whereas the detail analysis of the evidence would lead to an irresistible conclusion that only 4 kg of charas and opium was proved as narcotics. It is also evidence on the record that female accused were carrying narcotics with them at the instance of Muhammad Riaz who was accompanying as guard being main beneficiary of the narcotics.
In the light of foregoing reasons, we while taking into consideration that out of total recovered charas and opium, a quantity of two kg of charas and two kg of opium was proved as narcotics, maintain the conviction of petitioners under Section 9(C) of Control of Narcotics Substances Act, 1997 with fine imposed upon them but keeping in view the circumstances of the case in totality, we are inclined to reduce their sentence of imprisonment. This petition is therefore converted into an appeal and allowed with reduction of sentence of life imprisonment awarded to Muhammad Raiz to 14 years R.I., whereas the sentence of the petitioners namely, Mst. Perveen Bibi and Mst. Kausar Perveen is reduced to R.I for 10 years each. The sentence of petitioners in default of payment of fine is also reduced from 1 year to 6 months and they shall be entitled to the benefit of Section 382-B Cr.P.C.
With the above reduction in the sentence, this appeal is partly allowed.
(Aliya Sattar Chaudhry) Appeal partly allowed.
PLJ 2006 SC 1065 [Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Raja Fayyaz Ahmad, JJ.
ANWAR KHAN and another--Petitioners
versus
STATE--Respondent
Crl. Petition No. 453 of 2004 & JP No. 454 of 2004, decided on 16.1.2006.
(On appeal from Peshawar High Court, Peshawar dated 3.11.2004 passed in Criminal Appeal No. 266/2004 and 280/2004 respectively).
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9--Criminal Procedure Code, 1898 (V of 1898), S. 164--Recovery of Narcotics--Conviction and sentence--Appeal against--Recovery of contraband opium and charas from vehicle in which present accused and their co-accused were travelling was proved through directed evidence and in addition principle accused has also confessed his guilt before judicial magistrate in his statement u/s 164 Cr.P.C. therefore, to his extent no exception can be taken to judgment of High Court--However, case against female co-accused is distinguishable and she would stand at par to Mst. "S" who was acquitted by trial judge with observation that probably she had no conscious knowledge of narcotic being carried in vehicle by her co-accused--Mere fact that car which was used for crime, belonged to son in law of Mst. "N" and she was also travelling in car, would not be sufficient to suggest that she had conscious knowledge of narcotic in car and consequently charge against her was not proved beyond reasonable doubt--Prosecution has not been able to bring on record any convincing evidence to distinguish her case to that of "S" and prove that she being privy to crime was travelling in car with her co-accused. [Pp. 1067 & 1068] A & B
Dr. Babar Awan, ASC for Petitioner in Cr. P. No. 453/04.
Nemo for State in Cr.P. No. 453/04.
Mr. Tariq Bilal, ASC for petitioner in J.P. No. 454/04.
Mr. M. Bilal, ASC for State in J.P. No. 454/2004.
Date of hearing : 16.1.2006.
Judgment
Muhammad Nawaz Abbasi, J.--These two connected petitions have been directed against the judgment dated 3.2.2004 passed by Peshawar High Court, Peshawar whereby the criminal appeal filed by the petitioners against the conviction and sentence awarded to them by Special Court established under Control of Narcotics Substances Act, 1997 at Kohat was dismissed.
"I am educated upto middle level i.e. 8th Class. Nisar s/o Totay Khan R/o Fatehpur persuaded me and Kalid to transport narcotic to Lahore in lieu of Rs. 10,000/- as transport charges. Accordingly, we were on board along with two ladies and when the M/car Bearing No. Peshawar D-4610 reached on Kohat Check post on which we were on board, on checking charas weighing 38 Kg and opium weighting 42 kg was recovered from us and we all ie. 2 ladies and male were arrested and narcotics with M/Car were taken into custody."
The petitioner, in his statement under Section 342 Cr.P.C., having denied the charge pleaded not to have made a confessional statement voluntarily before the judicial magistrate whereas Mst. Najam-un-Nisa, (petitioner, in the connected petition) taking plea of lack of knowledge about the narcotics recovered from the secret cavities of the car, denied the charge with the assertion that she and Mst. Samina Gul having taken lift from the male accused were travelling with them as passengers.
The learned counsel for Anwar Khan, petitioner, has contended that the alleged confessional statement of petitioner and Khalid Khan, his co-accused, recorded by a judicial magistrate under Section 164 Cr.P.C. would have no evidentiary value to be used as admissible evidence being the result of torture and also in conflict to the provisions of Section 265-J, Cr.P.C. Learned counsel next argued that the case against Mst. Najamun Nisa being not distinguishable to that of Samina Gul who has been acquitted, she could not be convicted on the basis of same evidence in absence of independent corroboration. Learned counsel for the State, on the other hand, has submitted that the petitioners having been found transporting huge quantity of narcotics were arrested at the spot and apart from judicial confession made by Anwar Khan, (petitioner) prosecution has produced sufficient direct evidence of unimpeachable character to establish the charge against them and was successful in proving their guilt beyond reasonable doubt.
The contention of the learned counsel regarding the inadmissibility of confessional statement of Anwar Khan, (petitioner) has no substance as nothing has been brought on record to suggest that the confession was the result of coercion, undue influence, torture or it was made by him under the compelled circumstances. The confessional statement of a person, if is found voluntary and confidence inspiring, must not be discarded for mere reason that it was retracted at the trial. In the present case, prosecution has produced sufficient direct evidence and even if the confessional statement of Anwar Khan (petitioner) is excluded from consideration, still the charge against him would be proved beyond any doubt. Mr. Tariq Bilal, learned ASC, counsel for Mst. Najam-un-Nisa, petitioner in Jail Petition No. 454 of 2004 appointed on State expenses, has argued that the case against this petitioner was not distinguishable to that of Mst. Samina Gul who has been acquitted, therefore she was also entitled to the same benefit.
The recovery of contraband opium and charas from the vehicle in which the present petitioners and their co-accused were travelling was proved through directed evidence and in addition thereto, Anwar Khan has also confessed his guilt before a judicial magistrate in his statement under Section 164 Cr.P.C. therefore, to his extent no exception can be taken to the judgment of the High Court. However, the case against Mst. Najamun Nisa, petitioner, in Jail Petition No. 454 of 2004 is distinguishable and she would stand at par to Mst. Samina Gul who was acquitted by the learned trial Judge with the observation that probably, she had no conscious knowledge of the narcotic being carried in the vehicle by her co-accused. The mere fact that the car which was used for the crime, belonged to son in law of Mst. Najamun Nisa and she was also travelling in the car, would not be sufficient to suggest that she had conscious knowledge of narcotic in the car and consequently, the charge against her was not proved beyond reasonable doubt. The prosecution has not been able to bring on record any convincing evidence to distinguish her case to that of Samina Gul and prove that she being privy to the crime, was travelling in the car with her co-accused.
In the light of foregoing discussion, Criminal Petition No. 453 2004 filed by Anwar Khan, convict, is dismissed and leave is refused in this petition whereas Jail Petition No. 454 of 2004 filed by Mst. Najaum Nisa is converted into an appeal and conviction and sentence awarded to her is set aside by giving her the benefit doubt. She is directed to be released from jail forthwith if not required in any other case. The appeal of Mst. Najam-un-Nisa is allowed.
(Aliya Sattar Chaudhry) Order accordingly.
PLJ 2006 SC 1068 [Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Ch. Ijaz Ahmad & Syed Jamshed Ali, JJ.
NASIR ALI--Petitioner
versus
SAJJAD HUSSAIN & others--Respondents
Crl. Petitions Nos. 13 to 15-Q of 2004, decided on 19.4.2006.
(On appeal from the order dated 25.2.2004 passed by High Court of Balochistan in Criminal Appeal No. 104 of 2002).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 337-K, 338-A (ii), 452 & 34--Constitution of Pakistan, 1973, Art. 185(3)--Appeal against acquittal--Interested witnesses--Ocular testimony directly in conflict with medical evidence--Powers of Supreme Court to re-appraisal evidence under Art. 185(3) of constitution--Prior to instant incident, civil litigation was going on between parties--Therefore, eye witnesses are interested and inimical qua respondents/accused persons--Evidence of inimical witness cannot be accepted without independent corroboration--High Court had given finding of fact against petitioner after proper appreciation of evidence with ocular testimony directly in conflict with medical evidence--In case of conflict between ocular and medical evidence, then medical evidence is to be preferred--Statement of eye witnesses in respect of nature and seat of injuries could not connect respondents as their statements are not in consonance with medical evidence and this finding was duly considered/noted by High Court after re-appraisal of eye witnesses and medical evidence in minutely--When incident took place, the FIR was lodged one month later and this fact was also considered by High Court and in case all sets of evidence are put in juxta position, then it brings case of prosecution in area of doubt--Benefit of doubt must be given to accused--Held: Supreme Court cannot re-appraisal evidence while exercising power under Art. 185(3) of constitution unless and until High Court had committed perversity or arbitrary while re-appraisal of evidence on record and in the very exceptional cases--Petition devoid of any merit is accordingly dismissed. [P. 1071] A, B & C
PLD 1985 SC 11; 1983 SCMR 1292; 1969 SCMR 462 & PLD 1985 SC 11, ref.
Mr. Khushnood Ahmad, ASC with Mr. M.N.W. Kohli, AOR for Petitioner (in all petitions).
Respondents Nos. 1 & 2 in person.
Mr. Salahuddin Khan Mangal, A.G. Balochistan for State.
Date of hearing : 19.4.2006.
Order
Ch. Ijaz Ahmad, J.--We intend to decide the above captioned petitions by one consolidated order having similar facts arising out of the same impugned judgment of the High Court of Balochistan.
Name of accused Under Section Sentence.
(1) Sajjad Hussain 337K PPC Sentence to 2 years imprisonment each.
(2) Ijaz Hussain Daman of Rs. 10000/- each payable to the Complainant.
It is pertinent to mention here that benefit of Section 382-B Cr.P.C. was extended & accused-respondents were acquitted u/S. 316 PPC.
Respondents being aggrieved filed appeal in the High Court of Balochistan u/S. 410 Cr.P.C. Petitioner being aggrieved filed revision petition u/S. 435 read with Section 439 Cr.P.C. in the High Court for enhancement of the sentence of the respondents, whereas the petitioner had also filed criminal appeal u/S. 417(2) Cr.P.C. to the extent of acquittal of the respondents u/S. 316 PPC. The learned High Court had accepted the appeal of the respondents vide impugned judgment dated 25.2.2004. Consequently respondents were acquitted whereas the criminal appeal and criminal revision filed by the petitioner were dismissed. Hence, the present petitions.
Contents of FIR reveal that at mid night of 9:10 of August, 2000 all the three accused in a white Car No. DGB/8282 went at the house of the complainant, entered in the house and attacked on the complainant and injured him with fists and kicks. His wife came in between to save her husband when she was also beaten, which resulted miscarriage/abortion. They also beaten the daughter of complainant.
The learned counsel of the petitioner submits that learned High Court had erred in law to accept the appeal of the respondents on surmises and conjunctures without judicial application of mind and had reversed the findings of the trial Court which was based on sound reasons. He further urges that prosecution had proved the case against the respondents beyond any shadow of doubt. The learned High Court had erred in law to discard the veracity of the ocular version of the prosecution which was produced by the prosecution through the natural witnesses whose presence was not doubted as the respondents had attacked and injured them in the house of the complainant. He further urges that respondents had beaten Mst. Hakima due to which she suffered mis-carriage of three months pregnancy. The learned High Court had erred in law to discard the ultrasound and other documentary evidence included opinion of the doctor qua her pregnancy. He further urges that learned High Court was not justified to discard the statement of eye-witnesses merely on the ground that witnesses are inter se related and interested. He further urges that learned High Court had erred in law to accept the appeal of the respondents on the ground that prosecution failed to produce neighbourers to prove the case against the respondents as the incident took place in brought day light. He further urges that non production of the neighbourers is not a ground to discard the natural injured eye-witnesses.
The learned counsel of the respondent had acquitted the respondents after re-appraisal of evidence on record with sound reasons and had come to its own conclusion in view of evidence on record and discussed each and every piece of evidence on record.
The learned Additional Advocate General has also supported the impugned judgment and submits that learned counsel of the petitioner has failed to point out any infirmity or illegality in the impugned judgment.
We have given our due consideration to the contentions of learned counsel of the parties and perused the record. It is pertinent to mention here that all the eye-witnesses are closely related with each other. The relationship of the eye-witnesses are as follows:--
(i) PW-2 Mst. Hakima is wife of the complainant PW-4.
(ii) PW-3 Mst. Nadia is daughter of the complainant of PW-4.
It is an admitted fact that prior to the instant incident, civil litigation was going on between the parties. Therefore, eye-witnesses are interested and inimical qua the respondents/accused persons. It is a settled principle of law that evidence of inimical witnesses cannot be accepted without independent corroboration. See Ghulam Sikandar's case (PLD 1985 SC 11). The learned High Court had given finding of fact against the petitioner after proper appreciation of evidence with ocular testimony directly in conflict with medical evidence. It is a settled principle of law that in case of conflict between the ocular and medical evidence, then medical evidence is to be preferred. See Bagh Ali' case (1983 SCMR 1292) and Muhammad Aslam's case (1969 SCMR 462). It is pertinent to mention here that statement of eye-witnesses in respect of nature and seat of injures could not connect the respondents as their statements are not inconsonance with medical evidence and this finding was duly considered/noted by the High Court after re-appraisal of eye-witnesses and the medical evidence in minutely. The learned High Court had also with cogent reasons given findings of fact that prosecution had failed to prove the allegations of mis-carriage. It is pertinent to mention here that as per doctor & gynaecologist that there was no bleeding. Ultrasound carried on the day of incident was also silent about the pregnancy report Ex. P1 dated 11th August, 2000 was not considered on the ground that the person who had issued said report or conducted test was not produced in the Court coupled with the fact that no independent witness was produced by the prosecution inspite of the fact that incident had taken place in the house of the complainant. It is pertinent to mention here that incident took place on 9/10 of August, 2000 but the FIR was lodged by the complainant Nasir Ali against the respondents and their father after one month and this fact was also noted and considered by the learned High Court in the impugned judgment and in case all the sets of evidence are put in juxta position then it brings the case of the prosecution in the area of doubt. It is a settled principle of law that benefit of doubt must be given to the accused. It is a settled principle of law that there are different principles and parameters prescribed by this Court qua the re-appraisal of evidence with regard to the petitioners/appeals of acquittal/conviction. See Ghulam Sakindar's case (PLD 1985 SC 11). It is a settled principle of law that this Court cannot re-appraisal the evidence while exercising power under Article 185(3) of the Constitution unless and until the learned High Court had committed perversity or arbitrary while re-appraisal of evidence on record and in the very exceptional cases. This case does not fall in the category of exceptional cases.
We have examined the record with the assistance of the learned counsel of the parties and do not find any illegality or infirmity in the impugned judgment. The petition being devoid of any merit is hereby dismissed. Leave to appeal is declined.
(Aliya Sattar Chaudhry) Petition dismissed.
PLJ 2006 SC 1072 [Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Ch. Ijaz Ahmad & Syed Jamshed Ali, JJ.
MUHAMMAD RAHIM etc.--Petitioners
versus
BAKHT MUHAMMAD etc.--Respondents
Crl. Petition No. 7-Q of 2004, dismissed on 18.4.2006.
(On appeal from the Order dated 8.1.2004 passed by the High Court of Balochistan in Crl. Appeal No. 5/2003).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 324/337A/147/148/149 & 34--Appeal against acquittal--Delay in recording statements of witnesses--Improvement in statements--Suppression of injuries--Effect of--Statement of witnesses were not recorded promptly which were recorded after considerable delay and witnesses had failed to explain delay and this fact was considered by High Court in true perspective and found that their statements were not trust worthy as their statements created doubt in their veracity--Petitioners had suppressed injuries qua accused persons, therefore, High Court was justified to acquit respondent coupled with fact that trial Court had acquitted nine (9) persons on basis of the same evidence on which trial Court had convicted respondents--Prosecution witnesses had made improvements in their statements to strength the prosecution case, therefore, High Court was justified to discard their evidence--Medical evidence is always considered as supporting evidence--Injuries by themselves are not sufficient to identify the culprits--Held: Supreme Court is not Court of appeal while exercising power u/Art. 185(3) of constitution and not expected to re-appraisal of evidence except in exceptional circumstances--Petition dismissed. [Pp. 1074 & 1075] A, B, C & D
1993 SCMR 850; 1985 SCMR 685; 1992 SCMR 1445; 1995 SCMR 127 & 1995 SCMR 635, ref.
Mr. Ayaz Khan Swati, ASC for Petitioners.
Mr. M. Aminuddin Bazai, Addl. A.G. for State.
Date of hearing : 18.4.2006.
Order
Ch. Ijaz Ahmad, J.--Brief facts out of which the present petition arises are that respondents alongwith nine (9) acquitted co-accused were involved in a Case No. 2/2001 on the complaint of Jan Muhammad Petitioner No. 3 which was registered at police station Lavies P.S. Chamman u/S. 324/337-A read with Section 147, 148, 149 and 34 of PPC. The investigating agency investigated the case and found them guilty and the challan was submitted before the competent Court. Respondents were convicted and sentenced vide judgment dated 31.12.2002 by Sessions Judge/Special Judge, STA Pashin as under:--
Name of accused Under Section Sentence
Bakhat Muhammad & 337Fii/34 PPC Punished to suffer R.I 2 years Allah Muhammad each with Daman Rs. 5000/- each or in default thereof to further suffer S.I. for six months each.
-do- 337Fiii/34 PPC To suffer R.I 2 years each with daman Rs. 10000/- each or in default thereof to further suffer S.I for six months each.
-do- 337F(v)/34 PPC To suffer R.I 4 years each with daman Rs. 20000/- each or in default thereof to further suffer S.I 8 months each.
It is pertinent to mention here that nine(9) on accused were acquitted by giving them benefit of doubt.
Respondents being aggrieved filed Criminal Appeal No. 5 of 2003 in the High Court which was accepted and respondents were acquitted vide impugned judgment dated 8.1.2004. Hence, the present petition.
Learned counsel for the petitioners submits that prosecution had proved the case against the respondents beyond any shadow of doubt and the learned trial Court was justified to convict them with cogent reasons whereas the learned High Court had erred to acquit the respondents by misreading and non reading of record. He further urges that learned High Court had acquitted them merely on the ground that statement of witnesses of the prosecution were recorded after considerable delay and the prosecution witnesses failed to explain the delay which was not sufficient ground to acquit the respondents in view of law laid down by the superior Courts. In support of his contention, he relied upon Abdul Ali's case (2002 SCMR 203). He further urges that learned High Court had acquitted them without judicial application of mind as the reasoning of the learned High Court were based on surmises and conjunctures. The learned High Court had not scrutinized the evidence in its true perspective and reversed the conclusions of the trial Court without any justification. He further urges that learned High Court was influenced in view of the cross case lodged by the accused party against the petitioners.
The learned Additional Advocate General supported the judgment of the learned High Court and stated that learned High Court had acquitted the respondents after re-examining evidence on record and found that prosecution had failed to prove the case against the respondents.
We have given our due consideration to the contention of learned counsel of the parties and perused the record. It is pertinent to mention there that this is a petition for leave to appeal against the acquittal. Consideration for interference in an appeal/petition against acquittal and in an appeal/petition for conviction are altogether different. It is well settled principle that appreciation of evidence against acquittal is entirely different as compared to the appreciation of evidence to the appeal against conviction. There are several pronouncements of this Court qua the aforesaid proposition of law. See Muhammad Iqbal's case (1994 SCMR 1928) and Ghulam Sikandar's case (PLD 1985 SC 11). The learned High Court had examined the case within the parameters prescribed by this Court in the aforesaid judgments. Keeping in view the principle laid down by this Court in the aforesaid judgments and have come to the conclusion that evidence of the prosecution PW-2 Muhammad Ibrahim, PW3 Allahuddin and PW5 Muhammad Aslam were variance in their statements and contradicting each other on material points. So much so the aforesaid witnesses had improved their statements before the trial Court to connect the respondents with the commission of offence. It is pertinent to mention here that statement of witnesses were not recorded promptly which were recorded after a considerable delay and the witnesses had failed to explain delay and this fact was considered by the learned High Court in its true perspective and found that their statements were not trust worthy as their statements created doubt in their veracity as the law laid down by this Court in Syed Saeed Muhammad Shah's case (1993 SCMR 550). The petitioners had suppressed the injuries qua the accused persons, therefore, learned High Court was justified to acquit the respondent coupled with the fact that the trial Court had acquitted nine (9) persons on the basis of the same evidence on which the trial Court had convicted the respondents. The learned High Court was justified to acquit the respondent keeping in view all the attending circumstances of the case in hand. We have gone through the record in the interest of justice and fair play with the able assistance of the learned counsel of the parties and we find the reasons advanced by the learned High Court while giving benefit of doubt to the respondents are well founded. It is an admitted fact that prosecution witnesses had made improvements in their statements to strength the prosecution case, therefore, learned High Court was justified to discard their evidence. See Amir Zaman's case (1985 SCMR 685). It is a settled principle of law that medical evidence is always considered as supporting evidence. Injuries by themselves are not sufficient to identify the culprits. See Abdul Karim's case (1992 SCMR 1445), Mehmood Ahmad's case (1995 SCMR 127) and Muhammad Sharif's case (1995 SCMR 635). It is a settled principle of law that this Court is not a Court of appeal while exercising power under Article 185(3) of the Constitution, therefore, we are not expected to re-appraisal of evidence except in exceptional circumstances. As mentioned above the petitioners' counsel has failed to bring the case within the category of exceptional cases. The judgment (Abdul Ali's case supra) relied by the counsel of petitioners is distinguished on facts and law.
In view of what has been discussed above, we do not find any merit in this petition which is hereby dismissed. Leave to appeal is declined.
(Aliya Sattar Chaudhry) Petition dismissed.
PLJ 2006 SC 1075 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & M. Javed Buttar, JJ.
MUHAMMAD SABIR--Petitioner
versus
STATE--Respondent
Jail Petition No. 412 of 2005, dismissed on 6.4.2006.
(On appeal from the judgment dated 23.9.2005 of Lahore High Court, Bahawalpur Bench passed in Criminal Appeal No. 217/2001)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Conviction and sentence--Appreciation of evidence--Petition for leave to appeal--Sister of accused claiming to have been ravished by deceased at night and killed by her with Churri which the deceased had placed on right side during sexual intercourse--She never got herself medically examined and made no complaint to police or to higher officers for any lapses on their part-very act of killing in reaction is unbelievable because deceased had been frequent visitor--By taking plea aforesaid and by producing victim the accused has rather proved fact that the deceased was kill with same churri recovered in the instant case--Held: Prosecution fully proved its case by producing eye-witnesses that seek support from the recovery of Churri, the recovery of blood-stained earth, postmortem report and motive which has now become undisputed due to abortive effort of accused in shifting burden upon her sister--Held further: He was rightly convicted as well as sentenced--Petition dismissed. [Pp. 1077 & 1078] A, B, C, D & E
Hafiz S. A. Rehman, Sr. ASC for Petitioner.
Mr. M. Zaman Bhatti, ASC for State.
Date of hearing : 6.4.2006.
Judgment
Sardar Muhammad Raza, J.--With reference to a case FIR # 194/99 dated 2.5.1999 of Police Station Baghdadul Jadid, District Bahawalpur registered under Section 302/34 PPC, Muhammad Sabir son of Sher Muhammad, Awami Colony Bahawalpur was tried for the murder of Hazoor Bakhsh, deceased by stabbing him to death on 2.5.1999 at 7.00 a.m.
He was held guilty under Section 302 PPC by learned Sessions Judge Bahawalpur vide judgment dated 29.6.2001 and sentenced to imprisonment for life with a compensation of rupees fifty thousand under Section 544-A Cr.P.C. The conviction and sentences aforesaid were maintained by a learned Judge in Chambers of Lahore High Court Bahawalpur Bench vide judgment dated 23.9.2005 in Criminal Appeal # 217/2001, whereby, his appeal as well as revision for the enhancement of sentence, were both dismissed. Muhammad Sabir seeks leave to appeal.
Noor Muhammad, complainant lives in Awami Colony. His nephew cum son-in-law named Hazoor Bakhsh also resided with him. As he is a labourer, he, along with his nephew Hazoor Bakhsh, Allah Bakhsh and Muhammad Siddique went to work in the house of one Moulvi Muhammad Asad. As the masons had not then reached, they sat in waiting. Hazoor Bakhsh went away to urinate. After when he was coming back, it was about 0700 hours when accused Muhammad Sabir armed with a churri appeared at the corner of Muhammad Ismail's house. He raised a lalkara that he would teach a lesson to Hazoor Bakhsh for coming to his place despite forbidding, and simultaneous therewith he gave a churri blow to Hazoor Bakhsh in the abdomen. Abdul Hameed, an uncle of the accused also reached at the spot to help the assailant. Both the accused decamped while Hazoor Bakhsh died on the spot.
Motive for the occurrence is, that Muhammad Sabir accused had developed a suspicion that the deceased had illicit relations with his sister.
We would not go into the details of the prosecution evidence because the occurrence that Hazoor Bakhsh was murdered, is admitted by the accused in his statement under Section 342 Cr.P.C. The learned counsel for the petitioner did not lay any stress on the prosecution but his main stance was that Hazoor Bakhsh had been killed in the circumstances given by the accused. For being specific, we would reproduced the plea of the accused in answer to the question as to why he was charged and why the witnesses deposed against him:--
"I was as usual working at my shop situated at the distance of about one furlong form my house. It was about 4.30 p.m. my sister Mst. Rashida came there at my shop along with the churri blood stained P-4 and stated that Hazoor Bakhsh deceased use to come to her house and asked her to develop illicit relations with him. I told him that more than once I am not girl of that type. On his still insistence I had abused him. Today at about 3.30 a.m. in the room I was sleeping alone in the house. I woke up when I felt that the string of my shalwar was opened. I saw that Hazoor Bakhsh armed with Churri P-4 had over powered her by gaging her mouth. Hazoor Bakhsh threatened her to kill with churri if she raised alarm. I got frightened. He started intercourse by placing the churri near side of right hand in order to gag her mouth. When he was in the intercourse she succeeded in getting hold of the churri and giving him blows on the face near his chest. She took the churri and came to me. I took my sister to the police. My sister narrated the above story to them. I produced the churri under the above mentioned circumstances."
The accused though himself refused to be examined on oath under Section 340(2) Cr.P.C, produced his sister Mst. Rashida Mai in defence. According to her, Hazoor Bakhsh deceased who was running a tea stall near her house used to visit her whenever she had been alone in the house. He had been compelling her to develop illicit relations but the girl refused such advances saying that she was not a girl of that type. That she had also abused him prior to the occurrence. On the night of occurrence at about 0300/0330 hours Hazoor Bakhsh came to her house. He gagged her mouth and tried to untie her trouser string. She woke up to find the accused armed with a churri. He started committing sexual intercourse with her while the churri was lying on the right side. She picked up the churri and stabbed the accused on his left flank. Taking few steps from the cot, he fell down on the ground. Mst. Rashida Mai picked up churri and went to her brother Muhammad Sabir and informed him about the occurrence. The accused took her to the Police Station where she narrated the whole occurrence by producing the churri. That thereafter, the police visited the spot and, in connivance with the complainant party, falsely involved her brother.
A close perusal of the statement of Mst. Rashida Mai together with the plea taken by the accused under Section 342 Cr.P.C, we are of the view that it is a cock and bull shortly. According to her admission in cross examination, the accused had been trying to develop illicit relations with her for two and a half year prior to the occurrence, but still, she never informed either her brother or her uncle who had been living with them. It is also admitted that the deceased had visited for many times before the occurrence. She claimed to be a virgin before the occurrence, meaning thereby that she lost virginity during occurrence. Still, she never got herself medically examined and she made no complaints to the police or to the higher officers for any lapses on their part.
One cannot doubt the implausibility of the story advanced. The very act of killing in reaction is unbelievable because the deceased had been a frequent visitor. It is also not believable as to how could the deceased at the relevant time enter the house in the presence of all the inmates. It is also not believable that at such odd hours of the night, the accused would be present at his shop. Above all, the dead body was never found inside the house of the accused but was found near the house of one Muhammad Ismail, 250 yards away from the house of the petitioner. This matter has been dealt with by the learned High Court in para-11 of the impugned judgment, with sound and plausible reasons. We would further supplement by saying that, by taking the plea aforesaid and by producing Mst. Rashida Mai, the accused has rather proved the fact that the deceased was killed with the same churri recovered in the instant case.
The accused could not be condemned for the only reason that he took a false plea in defence. Even if a plea is false yet the Court is bound to consider the prosecution evidence in order to prove the guilt of the accused. In the instant case, the prosecution fully proved its case by producing eye-witnesses that seek support from the recovery of churri, the recovery of blood-stained earth, the postmortem report and the motive, which has now become undisputed due to the abortive effort of the accused in shifting the burden upon her sister.
After having examined the pros and cons of the case, we are of the view that he was rightly convicted as well as sentenced. There being no merit in the petition, it is hereby dismissed and leave to appeal refused.
(Aliya Sattar Chaudhry) Petition dismissed.
PLJ 2006 SC 1078 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Raja Fayyaz Ahmad, JJ.
FAZAL ILLAHI and another--Petitioners
versus
INSPECTOR GENERAL OF POLICE N.W.F.P., PESHAWAR and 2 others--Respondents
C.Ps. Nos. 1825 & 588-P of 2003, decided on 10.11.2005.
(On appeal from the judgment dated 28.5.2003 of N.W.F.P. Service Tribunal passed in Appeal No. 58/2001.)
(i) North West Frontier Province Police Rules, 1975--
----R. 5(3)--Constitution of Pakistan (1973), Art. 212(3)--Police official--Charge of misconduct involving imposition of major penalties specified in Rules of 1975--Departmental Authority is vested with powers either to direct holding of departmental regular inquiry or to dispense with the same by conducting General Police Proceedings--Overwhelming incriminating material during course of preliminary inquiry had been collected by Inquiry Officer--Petitioner was heard before departmental forums at all levels to whom, also final show-cause notice before passing of final order by Departmental Authority resulting into his dismissal from service was issued--Petitioner failed to satisfactorily explain his position or rebut incriminating material--Procedure under Relevant Police Rules was followed and proper opportunity of hearing by Departmental Authority before Service Tribunal was provided to petitioner in consonance with principles of natural justice and law--Orders passed by Departmental Authority and impugned judgment of Service Tribunal being un-exceptionable no interference was warranted in the same--Leave to appeal was refused. [Pp. 1084, 1085 & 1086] A & B
(ii) North West Frontier Province Police Rules, 1975--
----R. 5(3)--Dismissal of co-petitioner from service--Evidence collected during course of inquiry resulting into submission of report by inquiry officer, eventually culminating into dismissal of co-petitioner from service has been misread and misconstrued by departmental forum and was not taken notice of even by Service Tribunal furnishing basis for dismissal of co-petitioner from service, would render judgment passed by Service Tribunal as not sustainable in law and on facts--Judgment relating to dismissal of co-petitioner was set aside by converting petition for leave into appeal with direction to Departmental Authority to hold further inquiry into allegations against petitioner in accordance with law and there upon to pass appropriate order after hearing petitioner on its own merits. [P. 1086] C
2003 SCMR 207; 2004 SCMR 192 and 2003 SCMR 1172, ref.
Mr. Muhammad Naeem Sheikh, ASC for Petitioners.
M. M. Bilal, Sr. ASC for Respondents Nos. 1 & 3.
Date of hearing : 10.11.2005.
Judgment
Raja Fayyaz Ahmed, J.--Through CP No. 588-P/2003 and CP No. 1825/2003, leave to appeal have been sought for from the judgment dated 28.5.2003 passed by the learned NWFP Service Tribunal, Peshawar whereby separate appeals filed by the petitioners Ghulam Sadiq and Fazal Illahi relating to the same transaction and subject matter have been dismissed and the orders of their dismissal from service were maintained.
"FINAL SHOW CAUSE NOTICE
WHEREAS, you Constable Fazal Illahi No. 408 are reported to be involved in the commission of following misconduct as defined in NWFP Police Rules 1975:--
While posted in Police Lines, D.I. Khan now at guard in District Hqrs: Hospital, D.I. Khan. You proceeded to village Kala-Gorh Police Station Paharpur and demanded a huge amount of Rs. 40,000/- from the villagers of Kala-Gorh in some criminal case fraudulently by showing themselves the member of C.I.A. Staff.
During the preliminary Enquiry conducted by SDPO/Hqrs DI Khan, the allegation/charges levelled against you have been proved, which being a bad name for Police Force.
AND WHEREAS, the material placed before me is sufficient to establish the commission of above serious misconduct and un-becoming of good Police Officer against you.
NOW THEREFORE, I Ejaz Ahmad Langrial, Superintendent of Police Dera Ismail Khan, call upon you Constable Fazal Ellahi No. 408 through this Final Show Cause Notice within 7 days of the receipt of this Notice as to why you should not be major punishment including dismissal from service as provided under Rule 4(i)(b) WR 75 of the above said rules. Also state whether you wish to be heard in person.
In case your reply is not received within stipulated period, without any reasonable/sufficient cause, it will be presumed that you have nor defence to offer and the matter shall be dealt with ex-parte.
Sd/-
(EJAZ AHMAD LANGRIAL)
Superintendent of Police, Dera Ismail Khan."
"An enquiry was ordered to be conducted into the matter through SIPO/Hqrs DI Khan under "General Proceedings" under Rule 5(3) of NWFP Police Rules, 1975. The Enquiry Officer held the defaulters constables guilty of misconduct as charged for and submitted findings report on 14.2.2000. Therefore no further enquiry is necessitated. The defaulters were served with final show-cause notice received, which was perused and placed on record. The defaulters were summoned in the orderly room to provide them lawful opportunity of hearing, they appeared in orderly room on 6.3.2000. They failed to give any reasonable explanation. I heard Constable Ghulam Sadiq No. 175, has no excuse to offer. He is only trying to bluff the senior. He has been guilty of gross misconduct. Not only he tried to extort money from the amongst villagers, he also left his (dim) without permission and brought a very bad name to this force. Even now he is telling lies. He also took with him the other constables. Fazal Ellahi No. 408 constable was also accompanied and was hence V. patiently but he is talking senseably. He is even negating his statements which he had already given in front of us where he had confessed that Ghulam Saddiq No. 175 LHC and he had go together for this (extorticed). In view the enquiry report, his reply to Final Show Cause Notice and his verbal submission, today, his misconduct is proved.
On the available record and with no genuine explanation from hearing of defaulters I have satisfied that the charges of misconduct stand proved beyond any shadow of doubt, as leaving nothing expect of them becoming a good Police Officers.
In the light of above I Ejaz Ahmed Mangrial, Superintendent of Police Dera Ismail Khan, in exercise of the power confirmed under NWFP Police Rules, 1975 awarded constables, Ghulam Sadiq No. 175 and Fazal Elahi No. 408 a major punishment of dismissal from service with effect from 6.3.2000."
"ORDER
This order will dispose of an appeal preferred by Ex-Constable Fazal Ellahi No.408 of DI Khan District against the order of his dismissal from service passed by SP, DI Khan vide O.B. No. 3000 dated 6.3.2000.
Brief facts of the case are that while posted in Police Lines, DI Khan Ex-Constable Fazal Ellahi No. 408 was on guard duty at District Hqrs Hospital, DI Khan. He alongwith another Constable Ghulam Sadiq No. 175 proceeded to village Kalagorh, Police Station Paharpur, District DI Khan and demanded Rs. 40,000/- from the villagers in some criminal cases and fraudulently deposing himself to be an officer of the CIA staff, DI Khan with pretext of providing assistance to them.
An enquiry was conducted against him through SDPO/Hqrs: D.I. Khan under Rules 5(3) of NWFP Police Rules, 1975. The Enquiry Officer held him guilty of misconduct. The defaulter was served with show-cause notice. The SP D.I. Khan also provided him opportunity of personal hearing but he failed to rebut the allegations. The allegations have been proved against him. He not only tried to extort money from the innocent villagers but also left his place of duty without any permission. His act was prejudicial to good order and discipline of the district police. He undeniably brought a bad name to the police in the eyes of the citizens.
I have gone through the appeal as well as the service record of the defaulter constable and also heard him in person during which he offered nothing tangible in his defense. He has been rightly dismissed from service because the charges levelled against him have been proved irrevocably. Therefore, I see, no reason to interfere with the order already passed by SP, D.I. Khan and reject his appeal"
Petitioners feeling themselves dissatisfied with the order of the rejection of their appeals assailed the same by filing separate Service Appeals before the learned NWFP Service Tribunal. The learned Tribunal after hearing the parties learned counsel vide judgment of even date mentioned above dismissed their appeals, assailed through these petitions.
Mr. Muhammad Naeem Sheikh, the learned ASC for the petitioners and Mr. M. Bilal, Sr. ASC for the respondents have been heard at length. The learned counsel for the petitioners strenuously contended that the petitioners were condemned unheard as they were not associated nor afforded opportunity to defend themselves during the course of inquiry proceedings conducted into the allegations which consequently vitiated the entire proceedings of inquiry including the inquiry report culminating into their dismissal from service. Further the learned ASC argued that without prejudice to the above noted contentions, the evidence collected during the course of inquiry has been misconstrued and misread by all the forums below which consequently, renders the impugned judgment as not sustainable in law and on facts. According to the learned counsel as the petitioners have been dismissed from service on the charge of misconduct therefore, it was obligatory and a statutory duty cast upon the Authority to have ordered to conduct regular inquiry into the allegations which has not been done in the instant case, therefore, the petitioners deserve to be reinstated in service and a regular inquiry to be conducted if so warranted into the allegations. To supplement his contentions as regards holding of regular inquiry reliance has been placed on the judgment of this Court in the case of Inspector General of Police, Police Headquarters Office, Karachi and two others v. Shafqat Mehmood (2003 SCMR 207).
Controverting to the above noted contentions put forth on behalf of the petitioners Mr. M. Bilal, learned Sr. ASC for the respondents contended that admittedly the petitioners were the members of Disciplined Force and in matters relating to the breach of discipline of the force are governed by NWFP Police Rules, 1975 in which detailed procedure in respect of matters specified in Rule-3 including a member of the police force alleged to have been found guilty of misconduct has been prescribed which was duly followed by the Authority who dispensed with the regular inquiry in exercise of the powers vesting in him and directed for holding of General Police Proceedings in the orderly room during the course whereof; after service of final Show Cause Notice personal hearing was also afforded to the petitioners and finally after scrutiny of the proceedings conducted by the Inquiry Officer, his report and the submissions made by the petitioners, they were dismissed from service. The learned counsel for the respondents pointed out that the petitioners were also heard by the Appellate Authority and for the reasons recorded in the order passed by the Appellate Authority their departmental appeals were rejected and the learned NWFP Service Tribunal for valid and plausible reasons also dismissed their Service Appeals vide impugned judgments which are unexceptionable. Mr. M. Bilal. Sr. ASC, maintained that it was not a statutory obligation on the part of the Authority to have directed for holding a regular inquiry in view of the overwhelming incriminating material it was deemed appropriate in the exercise of powers vesting in him under the law to dispense with the holding of regular inquiry, therefore, no exception to the exercise of powers by the Authority in such behalf could be taken. Reliance has placed on the judgments of this Court in the cases of Khaliq Dad vs. Inspector General of Police and 2 others (2004 SCMR 192) and Altaf Hussain Shah vs. Punjab Service Tribunal, Lahore and others (2003 SCMR 1172).
The contentions put forth on behalf of the parties by their learned counsel have been considered minutely and carefully in the light of the impugned judgments and the case law cited during the course of arguments. The NWFP Police Rules, 1975, the orders passed by the departmental Appellate Authority and the Authority including the inquiry proceedings and the report of the Inquiry Officer based upon preliminary inquiry have been gone through with the assistance of the parties' learned counsel. The allegations against the petitioners were that they being Police Constables while posted in Police Line, D.I. Khan alleged to have proceeded to Kala-Gorh within the jurisdiction of P.S. Paharpur, District D.I. Khan and allegedly demanded and amount of Rs. 40,000/- from the villagers in some criminal case by fraudulently representing themselves to be the personnel of CIA Staff amounting to gross misconduct. In view of these allegations, the SP, D.I. Khan being the Authority in the case in exercise of the powers vesting in him under sub-rule (3) read with Clause (a) of Rule-3 of the NWFP Police Rules, 1975 dispensed with the formal inquiry in view of the serious allegations and misconduct levelled against the petitioners and ordered for General Police Proceedings to be conducted into the matter. The Authority after having scrutinized the incriminating material collected during the course of preliminary inquiry; and the report of the Inquiry Officer, issued final Show Cause Notice to the petitioners and the response given by the defaulters to the Show Cause Notice, as well as; after hearing them in the orderly room in which as noted in the order passed by the Authority; they failed to reasonably explain their position in the light of the incriminating material were dismissed from service. The petitioners filed departmental appeals before the Appellate Authority which too were rejected after hearing the petitioners for the reasons recorded in such order and their service appeals also failed before the learned NWFP Service Tribunal.
Adverting to the contention that it was obligatory on the part of the Authority to have directed for holding of a regular inquiry on the charge of misconduct involving imposition of one of the major penalties specified in the NWFP Police Rules, 1975, it may be seen that in such behalf exclusive powers have been invested in the Departmental Authority to decide in view of the incriminating material or the nature of the allegations for holding of regular inquiry or the case to be dealt with in General Police Proceedings in matters relating to the charge of misconduct involving imposition of one the major penalties including dismissal from service. Hence it could not be said that it was the statutory duty obligation of the Authority to have essentially directed for holding of a formal inquiry into the allegations. Intent of the rule maker is quite manifest from the powers expressly invested in the Departmental Authority to direct for holding of a departmental regular inquiry or to dispense with the same by conducting General Police Proceedings which obviously on general principles relating to the subject of inquiry can not be done away with or annulled against the clear intent of letter and the law. In the reported judgment cited by the learned ASC for the petitioners i.e (2003 SCMR 207) the NWFP Police Rules, 1975 and in particular provisions of sub-rule (3) of Rule-3 of the NWFP Police Rules, 1975 with regard to the powers of the Departmental Authority to direct for holding a formal inquiry proceedings into the allegations of misconduct or to dispense with the same were not brought under consideration as the case from such angle was not argued before the honourable Bench hence, with utmost respect in our humble opinion, in view of the sub-rule (3) of Rule-3 of the NWFP Police Rules, 1975 we are constrained to observe that the Departmental Authority in the case had the powers to decide for holding a formal inquiry into allegations amounting to misconduct or otherwise. Moreover, the facts of the case relating to the above mentioned cited judgment are distinguishable as in that case, the civil servant was charged with a criminal case in which he was exonerated by the complainant and was eventually, acquitted and department constituted. Facts-finding Committee which investigated the matter but the employee was not allowed to take part in the investigation and on the basis of report submitted by the Committee, he was dismissed from service. The Service Tribunal allowed the appeal filed by such civil servant and he was reinstated in service on the ground that after acquittal there was no material available with the Authority to take action and impose major penalty of dismissal from service. The CPLA was dismissed and leave to appeal was refused on the ground that neither there was misreading nor non-reading of material evidence or misconstruction of facts and law and the petitioners failed to raise any question of general public importance as contemplated under the Article 212(3) of the Constitution. In the instant case, overwhelming incriminating material, during the course of a preliminary inquiry has been collected by the Inquiry Officer against petitioner Fazal Illahi in C.P. No. 1825/2003 who was even caught red handed by the villagers but as far as involvement of petitioner Ghulam Sadiq in CP No. 588-P/2003 is concerned it was alleged and stated by the villagers before the Inquiry Officer that Fazal Illahi was accompanied by a person at the relevant time who made good his escape but no further probe with regard to the person, who had accompanied Fazal Illahi when they demanded an amount of Rs. 40,000/- for extending benefit to a party to criminal case was made. The petitioner Fazal Illahi was heard before the departmental forums at all the levels to whom, also final Show Cause Notice before passing of the final order by the Departmental Authority resulting into his dismissal from service was issued but he failed to satisfactorily explain his position or rebut the incriminating material. Record reveals that procedure under the NWFP Police Rules, 1975 had been observed in the case as well as; full and proper opportunity of hearing by the departmental forums and before the Service Tribunal was provided in consonance with the principles of natural justice and the law. No. part of incriminating evidence appears to have been misread, non-read or misconstrued by the departmental forums and the judgment of the learned NWFP Service Tribunal impugned through Civil Petition passed in the case of Fazal Illahi is unexceptionable. No substantial question of public importance within the meaning of Article 212 (3) of the Constitution could be raised resultantly, CP. No. 1825/03 is dismissed and leave is refused.
As hereinabove observed in the case of Ghulam Sadiq petitioner in CP No. 588-P/03, the evidence collected during the course of preliminary inquiry resulting into submission of report by the Inquiry Officer, eventually culminating into the dismissal of the petitioner from service has been misread and misconstrued by the departmental forums and was not taken notice of even by the learned NWFP Service Tribunal furnishing basis for the dismissal of the petitioner from service which therefore, renders the judgment passed by the learned NWFP Service Tribunal as not sustainable in law and on facts. Consequently, the same is set aside by converting this C.P. into appeal with the direction to the Departmental Authority in the case, to hold further inquiry into allegations against petitioner Ghulam Sadiq in accordance with law and thereupon; to pass appropriate order after hearing the petitioner, on its own merits. The result is that the petitioner stands reinstated in service and the intervening period from date of his dismissal from service be treated as any kind of `leave due'. Appeal stands disposed of, in the above terms with no order as to costs.
(Aziz Ahmad Tarar) Appeal dismissed.
PLJ 2006 SC 1086 [Appellate Jurisdiction]
Present: Hamid Ali Mirza & Karamat Nazir Bhandari, JJ.
HAMID-UL-HUSSAIN and others--Petitioners
versus
FEDERATION OF PAKISTAN through SECRETARY ESTABLISHMENT DIVISION, ISLAMABAD and others--Respondents
C.Ps. Nos. 1153, 1154, 1460, 1496, 1498, 1501, 1532 to 1534, 1571 to 1578 & 1742 of 2004, decided on 15.2.2006.
(On appeal from the judgment dated 24.4.2004 in Appeal No. 165(R)CS/2000 and others passed by the Federal Service Tribunal Islamabad).
(i) Civil Servants Seniority Rules, 1993--
----R. 4--Constitution of Pakistan 1973, Art. 212(3)--Petitioners' appointment as Section Officers by transfer on deputation--Petitioners claim that their induction into O.M.G should be deemed to have taken effect from that year, 1989 when they were initially transferred on deputation was rejected by Department and subsequently by Service Tribunal--Legality--Seniority in service, cadre or post to which a civil servant is appointed by transfer would take effect from date of regular appointment of service, cadre or post as per Rule 4 of Civil Servants Seniority Rules--Admittedly petitioners were appointed on regular basis vide notification dated 17.11.1999, therefore, they are not correct in claiming their seniority from any earlier date--Besides petitioners could not be permitted to wriggle out of unconditional consent given in 1999 for seeking induction in accordance with Rule 4 of Civil Servants Seniority Rules 1993. [Pp. 1091 & 1092] A
(ii) Civil Servants Seniority Rules, 1993--
----R.4--Constitution of Pakistan (1973), Art. 212 (3)--Regular appointment of petitioners by transfer through deputation--Seniority of petitioners would be counted from the date of their regular appointment and not from the date of their initial appointment transfer--Petitioner's plea of alleged discrimination and that of injustice meted out to them could not be accepted--Inaction of petitioners for years amounted to acquiescence--Seniority of petitioners having been determined in accordance with Rule 4 of Civil Servants Seniority Rules, 1993, Leave to appeal was refused. [P. 1092] B
PLD 1996 SC 771; 1998 SCMR 432; 1999 SCMR 185; 1995 SCMR 1840 and 2004 SCMR 497, ref.
Mr. Muhammad Akram Sheikh, Sr. ASC & Mr. M.A. Zaidi, AOR for Petitioners (in C.P. Nos. 1153-1154 and C.P 1577/04 only).
All in person for other connected petitions.
Mr. Aitzaz Ahsan, Sr. ASC for Respondents (in C.P. Nos. 65, 73, 183 and 219/2004 only.)
Respondent No. 24 in person.
Ch. Afrasiab, ASC for Respondents (Absent).
Date of hearing : 15.2.2006.
Order
Karamat Nazir Bhandari, J.--By a short order dictated in open Court today, we refused leave and dismissed Civil Petitions Nos. 1153, 1154, 1460, 1496, 1498, 1501, 1532 to 1534, 1571 to 1578, and 1742/2004. The following are the reasons for the short order.
Relevant facts of these petitions are that petitioners were initially serving in various Departments/Divisions as a result of their selection by Federal Public Service Commission (hereinafter referred to as FPSC). Around the years 1988-89, they were appointed as Section Officers by transfer on deputation where they remained as such until their appointments as Section Officers in the Officer Management Group (hereinafter referred to as O.M.G.) in their own pay and scales with immediate effect, vide Notification No. 6/6/1997-OMG-II dated 17.11.1999 (page 95 of the paper book of C.P. 1153/2004). The petitioners filed representations within the department claiming that their induction into O.M.G. should be deemed to have taken effect from the initial respective dates of deputation, approximately from the year 1989 and their seniority be determined accordingly. The representation made by the petitioner Hamidul Hussain is at page 76 of the Paper Book. Seemingly getting no response and after the lapse of prescribed time the petitioners filed appeals in the Federal Service Tribunal, Islamabad which appeals were initially accepted on 9.2.2001. This order however, was set aside by this Court on appeal and the cases were remanded to the Tribunal with a direction "to take fresh decision after hearing the selectees deputationist/transferees in accordance with law". After remand, the appeals were re-heard in presence of all the interested parties and dismissed vide judgment dated 24.4.2004 against which decision the petitioners seek leave to appeal from this Court through these petitions.
In support of these petitions Mr. Muhammad Akram Shaikh, learned Senior ASC has contended that the Tribunal has wrongly applied Rule 4 of the Civil Servants (Seniority) Rules 1993 (enforced on 28.2.1993) (hereinafter referred to as Seniority Rules, 1993) since the case of the petitioners was required to be decided under the earlier dispensation. According to him applying Seniority Rules 1993 to the cases of the petitioners would amount to giving retrospective effect to the Rules which is not permissible and this principal has been so declared by this Court in judgments referred to by him. He has further vehemently urged that the petitioners' case ought to have been decided in accordance with the decision taken by the Prime Minister on the summary sent by the Establishment Division, copy of which appears at pages 99-104 of the Paper book. The decision seems to be in the handwriting of the Principal Secretary to the Prime Minister and appears at page 104 of the paper book. As the petitioners primarily base their case on this decision, the same is reproduced for the sake of convenience:--
"The Prime Minister has been pleased to approve the proposals in paragraphs 2 and 3 above subject to the modification that the quota for induction by transfer may be raised from 10% to 20% and that for direct recruitment be reduced from 60% to 50%. The quota for promotion should remain 30%".
He submits that even though the decision of the Prime Minister has not been formally notified by issuing the office memorandum or otherwise, the decision became applicable and respondents officials were bound to implement the same. In this context he also urged that the petitioners on their own could not have approached the F.P.S.C. for examining them and it was for the respondents-officials to send requisition to the F.P.S.C. He has emphasized that the petitioners cannot be allowed to suffer for inaction of the respondents-officials. He has also argued that as against the maximum period of deputation of 5 years laid down in various paragraphs of the ESTACODE, the petitioners have served on deputation for about a decade or so and they are not in a position to go back to their parent departments. He has elaborated that the case of the petitioners is that of gross injustice. Reliance has been placed on Muhammad Arshad Sultan, Section Officer, Cabinet Division, Islamabad and another versus Prime Minister of Pakistan, Islamabad and others, (PLD 1996, SC 771), Mrs. Fakhera T. Abbasi, S.O. Finance Division, Islamabad and 2 others versus The Secretary, Establishment Division, Islamabad and 63 others, (1998 SCMR 432), Mehr Sher Muhammad and others versus Federation of Pakistan, (1999 SCMR 185) and Muhammad Zafar Khan versus Secretary Establishment Division, Islamabad and 155 others (1995 SCMR 1840) to urge that the point involved already stands settled in these judgments. He has finally urged that some of the Section Officers similarly placed were inducted into O.M.G. in the years 1989/90 (numbering about 7) and no reason has been shown as to why the petitioners have been denied this treatment. According to him this discrimination is forbidden by Article 25 of the Constitution.
Mr. Nasir Saeed Shaikh, learned DAG in defence of the petitions has replied that the whole scenario changed with the enforcement of Seniority Rules, 1993 with effect from 28-2-1993. Rule 4 lays down that the seniority in such a situation shall be reckoned from the date of absorption/regular appointment and not from the date of initial deputation. He has objected to reliance/reference to the summary submitted to the Prime Minister and decision taken thereon on the ground that the said summary is a secret document and petitioner cannot lawfully refer to the same. In any case according to him the approval by the Prime Minister of the proposals mentioned in paras 2 & 3 of the summary with the modification contained in the order cannot improve the case of the petitioners since conditions laid down in paras 2 and 3 were still required to be fulfilled and it is wrong to assume that Prime Minister ordered automatic induction of the petitioners. He has explained that the matter was required to be processed in terms of paras 2-3 where after the F.P.S.C. was required to examine the candidates for absorption in the O.M.G. He has explained that while this process was underway Seniority Rules of 1993 came into field and stalled that exercise. He has further contended that the case of the petitioners is governed by Seniority Rules, 1993 and it is wrong to contend that decision by these rules will amount to retrospective application of Rules. He has fortified this argument by referring to Rule 7 of the Seniority Rules, 1993 which repeals all the previous instructions, office memorandums and orders on the subject. He has further argued that the cases relied upon by Mr. Akram Shaikeh, are distinguishable and these were decided in accordance with the legal dispensation prevailing before the enforcement of Seniority Rules, 1993. He has replied to the argument of discrimination by pointing out that 4 of the persons appointed as Section Officers in the year 1989 were so appointed because their parent departments were being wound up and their cases stood on a different footing.
Mr. Aitzaz Ahsan, learned ASC appearing for some of the private respondents has by and large adopted the line of arguments of the learned D.A.G. He has submitted that petitioners in fact have been seeking seniority and absorption/induction in O.M.G. is altogather a different claim. According to him the petitioners by failing to agitate for induction/ absorption, after completion of the terms of deputation, accepted the sate of affairs in which they found themselves. He explained that from 1992 to 1999 they did not protest or lodge a claim for absorption/inducation otherwise than in accordance with Rule 4 of the Seniority Rules, 1993. He has drawn our attention to the consent given by Mr. Hamidul Hussain, petitioner which is unconditional in which he clearly states that "I hereby give my consent for induction in the Office Management Group in terms of para 4 of Civil Servants (Seniority) Rules, 1993 with reference to the Establishment Division's O.M.No. 6/6/97-OMG-II, dated 14.4.1999". He has argued that the consent given by the petitioners in 1992, became redundant in view of promulgation of Seniority Rules, 1993. He has also urged that most of the private respondents, if not all, have been appointed as Section Officers in a transparent manner after clearance by the F.P.S.C. He has relied on the case of Mehr Sher Muhammad and others versus Federation of Pakistan, (1999 SCMR 185), to draw support for the proposition that it is the seniority Rules, 1993, which will govern the cases in hand. He has also referred to Muhammad Zakir Khan versus Government of Sindh and others, (2004 SCMR 497) and Muhammad Arshad Sultan, Section Officer, Cabinet Division, Islamabad and another versus Prime Minister of Pakistan, Islamabad and others, (PLD 1996 SC 771) to show that once an unconditional consent has been given the civil servant cannot go behind it. He has further explained that application of the Seniority Rules, 1993 to the cases of the petitioners will not amount to given retrospective effect to the same as these rules came into force while the cases of the petitioners were yet to be finalized as per the previous legal dispensation.
Let us first examine the position as if Seniority Rules, 1993 were not in the field. The petitioners completed their 3 years tenure as deputationist in May/June, 1992. This period could have been extended by a further period of 2 years at the most although nothing has been placed on record to show that this was done. It is also reasonably established that the petitioners never protested against the induction of some of the deputationist in the O.M.G. way back in 1989. There is nothing on record to show that the petitioners ever urged their claim during the period 1992 to 1999. In fact they seem to have given unconditional consent for induction in the O.M.G. in terms of Rule 4 of the Seniority Rules, 1993. We find force in the submission of Mr. Aitzaz Ahsan that the petitioners' silence/inaction for 7/8 years has disentitled them to claim induction/absorption either with effect from 1992 when they completed 3 years period as deputationist or from the year 1989 the date of initial deputation.
However, the Seniority Rules, 1993 cannot be overlooked. They were enforced with effect from 28.2.1993 when the case of the petitioners had not been finalized in terms of the decision dated 19.11.1992 of the Prime Minister on the summary initiated by the Establishment Division, on which much emphasis has been placed by Mr. Akram. Whether inaction on the Prime Minister's decision was motivated and deliberate as claimed by Mr. Akram Shaikh or it was not immediately acted upon for good reasons as asserted by the learned DAG, fact remains that the Seniority Rules, 1993, came into force and changed the entire scenario. These had to be applied to the case of the petitioners and we repel the contention that its application would amount to enforcing them retrospectively. Rule 4 of the Seniority Rules, 1993 is relevant and is reproduced:
"Seniority on appointment by transfer.--Seniority in a service, cadre or post to which a civil servant is appointed by transfer shall take effect from the date of regular appointment to the service, cadre or post:
Provided that:--
(a) persons belonging to the same service, cadre or posts selected for appointment by transfer to a service cadre or post in one case batch shall, on their appointment, take inter se seniority in the order of their date of regular appointment in their previous service, cadre or post; and
(b) persons belonging to different services, cadre or posts selected for appointment by transfer in one batch shall take their inter se seniority in the order of the date of their regular appointment to the post which they were holding before such appointment and, where such date is the same, the person older in age shall rank senior".
Rule 7 is relevant to the situation in as much as it repeals the General Principles of seniority circulated vide Establishment Divisions O.M No. 1/16/69-D.II, dated the 31st December, 1970 and all other existing rules, orders and instructions relating to seniority. There are 3 exceptions to this repeal, none of which is relevant to the present situation.
Rule 4 in so many words lays down that seniority in service, cadre or post to which a civil servant is appointed by transfer shall take effect from the date of regular appointment to the service, cadre, or post. Undisputedly the petitioners were appointed on regular basis vide notification dated 17-11-1999 and they are not correct in claiming their seniority from any earlier date on the ground that they ought to have been absorbed or inducted into O.M.G. in the year 1992 or before that. The fact is that their induction did not take place earlier and the further fact is that until 2000 the petitioners did not agitate against the inaction to absorb them in O.M.G. Besides and further, the petitioners cannot be permitted to wriggle out of unconditional consent given in 1999, for seeking induction in accordance with Rule 4 of the Seniority Rules, 1993. Mr. Aitzaz is correct in saying that earlier consent given in 1992 was relevant to the exercise being undertaken as per the previous legal dispensation and since the exercise did not fructify, the consent of 1992 became irrelevant.
The argument of discrimination again does not help the petitioners. The alleged discrimination took place way back in 1989 and no grievance was made on this account by the petitioners until 1999/2000. Clearly this arguments cannot be accepted after the lapse of about a decade. Besides at least 4 of the deputationist were regularized/inducted into O.M.G. for sufficient reasons viz. abolition of their parent departments. Their case is clearly distinguishable.
The argument of gross in-justice having been done to the petitioners is again different to accept because of the conduct/inaction of the petitioners for years, which amounts to acquiescence. If the petitioners have suffered injustice they themselves have to take the responsibility, at least partially if not wholly. Mr. Atizaz Ahsan may be right in explaining that the petitioners' inaction was deliberate in as much as they wanted to remain in the Secretariat at all cost and under any terms as the stay in the Secretariat is advantageous. We need not evaluate this argument further as it has no bearing to the outcome of the petitions. Even in case of gross injustice, law cannot be thrown over-bound.
For the above reasons leave in these cases is refused and these petitions are dismissed.
(Aziz Ahmad Tarar) Leave refused.
PLJ 2006 SC 1092 [Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi and Saiyed SAeed Ashhad, JJ.
TANVEER HUSSAIN--Petitioner
versus
DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS and 2 others--Respondents
C.P. No. 2597 of 2005, decided on 23.1.2006.
(On appeal from judgment of Federal Service Tribunal Islamabad dated 7.9.2005 in Appeal No. 971 (R)(CS)/2002)
(i) Removal from Service (Special Powers) Ordinance 2000 (IV of 2000)--
----S. 10--Service Tribunals Act (LXX of 1973), S. 4(1) Proviso (a)--Constitution of Pakistan, (1973), Art. 212 (3)--Limitation for filing appeal before Service Tribunal by Civil Servant--Where aggrieved civil servant had preferred appeal, application or representation to Competent Departmental Authority and the same remained undecided for a period of 60 days, appeal before Service Tribunal would be required to be filed within maximum period of 30 days of expiry of 60 days i.e. within maximum period of 90 days from the date of submission of departmental appeal instead of 120 days which period has been provided under S. 4(1) Proviso of Service Tribunals Act, 1973--After promulgation of Ordinance viz. Removal from Service (Special Powers) Ordinance 2000, resort cannot be had to Proviso (a) to S. 4(1) of Service Tribunals Act, 1973, which impliedly stands repealed by S. 10 of Removal from Service (Special Powers) Ordinance, 2000 on the principle that where provision of earlier statute is inconsistent had in conflict with a provision of latter statute and the two statutes cannot be reconciled or harmonized so as to stand together then provision of earlier statute would give way to similar provision in latter statute on the doctrine of implied repeal.
[Pp. 1095 & 1096] A & B
(ii) Removal from Service (Special Powers) Ordinance, 2000 (IV of 2000)--
----S. 10--Constitution of Pakistan (1973), Art. 212 (3)--Petitioner having been compulsorily retired from service was required to have filed appeal within 90 days from the date on which has filed his representation--Petitioner kept waiting for decision of his representation which was decided when time of 90 days had already expired--Appeal of petitioner before Service Tribunal was thus, clearly time barred--Contention advanced by petitioner for condonation of delay even if taken to be true would not be of any assistance to him in explaining and over coming delay infiling appeal--Besides petitioner before filing his appeal before Service Tribunal had given undertaking by way of affidavit that he would not file appeal if his pensionary benefits were given to him--In pursuance of such undertaking pensionary benefits were paid to him--Petitioner after receipt of pensionary benefits would have no right to assail order of compulsory retirement as he would be deemed to have waived his right to assail order in question as he acquiesced with the same--Petition being without substance, leave to appeal was refused. [P. 1097] C
1997 SCMR 1160; 2001 SCMR 1229; 2002 SCMR 143; PLD 2001 SC 169; PLD 1956 FC 2001; PLD 1964 SC 673; 1996 SCMR 826 and PLD 2003 SC 828, ref.
Ch. Sadiq Muhammad Warraich, ASC & Mr. Ejaz M. Khan, AOR (Absent) for Petitioner.
Nemo for Respondent.
Date of hearing : 21.1.2006.
Order
Saiyed Saeed Ashhad, J.--This petition for leave to appeal has been filed against the judgment of Federal Service Tribunal Islamabad (hereinafter referred to as the "Tribunal") dated 7.9.2005 in Appeal No. 971(R)(CS)/2002.
The petitioner who was serving as Station Master in the service of Pakistan Railways was proceeded against for misconduct under the Removal from Service (Special Powers) Ordinance, 2000 (hereinafter referred to as the "Ordinance") and was awarded the penalty of compulsory retirement. He filed a departmental appeal on 26.3.2002 to the Chairman/ Secretary Railways Board which was rejected on 23.10.2002 whereafter he filed appeal before the Tribunal on 30.11.2002. According to the Tribunal, the appeal filed by the petitioner was barred by 7 days and no application for condonation of delay was submitted by the petitioner alongwith the memo of appeal. However, on 23.3.2003 he submitted an application for condonation of delay stating therein that he had received the order of rejection of his appeal dated 23.10.2002 on 7.11.2002. The Tribunal was not satisfied with the explanation given by the petitioner and held the appeal to be barred by time. The Tribunal also observed that the petitioner after filing the appeal had accepted the pensionary benefits by way of satisfaction of his claim.
Feeling aggrieved and dissatisfied with judgment of the Tribunal the petitioner has filed this petition or leave to appeal.
We have heard the arguments of Ch. Sadiq Muhammad Warriach, ASC and have perused the material on record.
The petitioner was compulsorily retired vide over-dated 11.3.2002 under the provisions of the Ordinance. Section 10 of the Ordinance provides for filing of an appeal to the Tribunal by a person aggrieved by any final order under Section 9 of the Ordinance within 30 days of the order. Proviso to Section 10 of the Ordinance provides that where a representation preferred under Section 9 of the Ordinance remains undecided and no decision is received or communicated to the aggrieved person within a period of 60 days from the date of its submission to the competent authority then he may file an appeal to the Tribunal within 30 days of the expiry of aforesaid period of sixty days. In view of Section 10 of the Ordinance, an aggrieved civil servant is required to file an appeal to the Tribunal within 90 days from the date of submission of his representation. Prior to promulgation of the Ordinance, the period for filing an appeal before the Tribunal was governed by Section 4 of the Service Tribunals Act, 1973 (hereinafter referred to as the "Act"). Proviso (a) to subsection (1) of Section 4 of the Act provided that where an aggrieved civil servant had preferred as appeal, application or representation to the competent departmental authority and the same remained undecided for a period of 90 days from the date of such appeal, application or representation then the appeal was to be filed within 30 days of the expiry of 90 days. According to the provision of Section 4 of the Act, the maximum period available to an aggrieved civil servant for filing an appeal to the Tribunal where his appeal, application or representation remained pending or was not decided by the competent authority was 120 days. This Court in cases of (i) Syed Firdos Ali v. Secretary Establishment Division, Islamabad and 2 others (1997 SCMR 1160) (ii) Ghulam Sarwar Bhutto v. Chief Secretary, Government of Sindh and 2 others (2001 SCMR 1229) and (iii) Teekam Das M. Haseeja, Executive Engineer, WAPDA v. Chairman, WAPDA and another (2002 SCMR 142) pronounced that after waiting for 90 days for decision on his appeal, application or representation the civil servant would have to file an appeal within 30 days and he was not required to wait indefinitely for decision of his appeal, application or representation. Applying the above principle for filing appeal before the Tribunal under Section 10 of the Ordinance which prescribes a waiting period of 60 days for decision of the departmental appeal, the same will be required to be filed within 30 days of expiry of 60 days i.e. within a maximum period of 90 days from the date of submission of departmental appeal instead of 120 days. After promulgation of the Ordinance the period for filing an appeal before the Tribunal will be governed by Section 10 of the Ordinance in view of the fact that the Ordinance has been given over-riding effect over all the laws dealing with the subject-matter which falls within the sphere of the Ordinance as is evidently clear from Section 11 of the Ordinance, thus making the provisions of the Ordinance to prevail over the laws or a provision of a law dealing with the subject-matter covered by the Ordinance.
The right, methodology and the period of limitation for filing appeal before the Tribunal is regulated by Section 4 of the Act. However, after promulgation of the Ordinance, resort cannot be had to Proviso (a) to sub-section (1) of Section 4 of the Act as it impliedly stands repealed by Section 10 of the Ordinance on the principle of partial repeal of a statute on the ground that when provision of an earlier statute is inconsistent and in conflict with a provision of a latter statute and the two cannot be reconciled or harmonized so as to stand together then the provision of the earlier statute will give way to similar provision in the latter statute on the doctrine of implied repeal. As the provisions of both proviso (a) to sub-section (1) of Section 4 of the Act and Section 10 of the Ordinance are inconsistent or in conflict with one another and if both are allowed to remain in the field then it is bound to result in ambiguity and inconsistency relative to determination of the period within which the departmental appellate authority will be required to decide the appeal of an aggrieved civil servant or the period for which he is to wait for the decision of the appellate authority as well as the period available to a civil servant, after submission of his departmental appeal, for approaching the Tribunal because proviso (a) to sub-section (1) of Section 4 of the Act provides 90 days waiting period and a maximum period of 120 days from the date of his appeal, application, representation for filing appeal before the Tribunal, while the aforesaid periods have been curtailed to 60 days and 90 days respectively by Section 10 of the Ordinance. Such discrepancy or conflict is bound to create uncertainty amongst the aggrieved civil servants for deciding which of the two provisions would have to be relied upon for determining the period of limitation as well as create problem for the Tribunal to decide about the maintainability of the appeals before it relative to the limitation.
The necessary conditions of implied repeal of an earlier statute or a provision thereof by a latter statute; firstly, that the two statutes cannot stand or co-exist together; secondly, that to stand side by side they will lead to absurd consequences; and thirdly that when the entire subject matter of the earlier statute or a provision thereof is taken away by the latter statute are available in the case in hand and proviso (a) to sub-section (1) of Section 4 of the Act would be deemed to have been impliedly repealed by Section 10 of the Ordinance in respect of appeals to be filed before the Tribunal under the Ordinance. In support of the above observation reliance is placed on principles laid down by this Court relative to implied repeal in the cases of (i) Mumtaz Ali Khan Rajban and another vs. Federation of Pakistan and others (PLD 2001 SC 169) (ii) The Punjab Province v. Malik Khizar Hayat Khan Tiwana (PLD 1956 F.C. 200) and (iii) Saiyyid Abul A'la Maudoodi and others v. The Government of West Pakistan and others (PLD 1964 S.C. 673).
This Court in the case of Neimat Ali Goraya and 7 others vs. Jaffar Abbas, Inspector/Sargeant Traffic through S.P., Traffic, Lahore and others (1996 SCMR 826) pronounced that where a general Law as well as special Law was applicable to a particular case then to the extent of application of special law, provisions of General Law would stand displaced. A similar observation was made by this Court in the case of Dur Muhammad vs. Abdul Sattar, (PLD 2003 SC 828) reiterating that special provisions would prevail over general provisions and the same was to applied strictly. The above observation was made while dealing with the special and general provisions of a statute and by way of analogy this principle can be applied to hold that to the provision(s) of a special statute will prevail over the provision(s) of a general statute dealing with the same subject matter.
It may also be pointed out that the Ordinance is a special law which has been promulgated in public interest and for good governance to provide for measures, inter alia, dismissal, removal etc. of certain persons from Government service and corporation service and to provide speedy disposal of cases and further that the provisions of the Ordinance have been given over-riding effect notwithstanding anything to the contrary contained in any other law for the time being in force dealing with subject-matter falling within the scope of the Ordinance. In this view of the matter also, the provisions of Section 10 of the Ordinance will have over-riding effect over proviso (a) to sub-section (1) of Section 4 of the Act, which stands impleadly repealed.
It was thus incumbent for the petitioner to have approached the Tribunal within 90 days from 26.3.2002, the date on which he filed/submitted his representation. The petitioner kept waiting for decision of his representation, which was decided on 23.10.2002 by which time the period of 90 days provided in Section 10 of the Ordinance had already expired. The appeal of the petitioner before the Service Tribunal was clearly time barred. The contention advanced by the petitioner for condonation of delay even if taken to be true would not be of any assistance to him in explaining and over-coming the delay in filing the appeal before the Tribunal.
Apart from above, it may be noted that the petitioner before filing his appeal before the Tribunal had given an undertaking by way of an affidavit dated 16.11.2002 that he would not file an appeal if his pensionary benefits were given to him. In pursuance of above his pensionary benefits were paid to him on 2.12.2002. After accepting the pensionary benefits, the petitioner would have no right to assail the order of compulsorily retirement as he would be deemed to have waived his right to assail the order of his compulsory retirement as he acquiesced with the same.
For the forgoing facts, reasons and discussions this petition is found to be without any substance and is accordingly dismissed. Leave to appeal is refused.
(Aziz Ahmad Tarar) Leave refused.
PLJ 2006 SC 1097 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Saiyed Saeed Ashhad, JJ.
SHAHID WAZIR--Petitioner
versus
THE SECRETARY KASHMIR AFFAIRS AND NORTHERN AREAS & STATES & FRONTIER REGIONS DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD and another--Respondents
Civil Petition No. 171 of 2006, decided on 27.3.2006.
(On appeal from the judgment dated 8.1.2006 of the Federal Service Tribunal, Islamabad, in Appeal No. 146(P) CS/2003).
(i) Constitution of Pakistan 1973--
----Art. 212(3)--No mis-reading, non-reading of material evidence or misconstruction of facts--No question of general public importance is involved--Held: Impugned judgment is based on valid and sound reasons and is entirely in consonance with law laid down by Supreme Court--Neither, there is misreading, nor non-reading of material evidence, or misconstruction of facts and law--Moreover, no question of general public importance as contemplated under Art. 212(3) of Constitution is involved in present case--Accordingly, petition being devoid of substance is dismissed and leave to appeal refused. [P. 1100] B
(ii) Principle of Res-Judicata--
----Appellant was dismissed from service after regular inquiry--Acquitted in criminal case later on Criminal Proceeding & Departmental Proceeding effect--Both proceedings have independent effect and result--Held: Departmental penalty was imposed on the petitioner, not on account of criminal proceedings but, as a consequence of departmental inquiry having been conducted in which petitioner was found guilty of charge though he was afforded full opportunity of defence--Departmental and criminal proceedings can be taken simultaneously and independent of each other--Second round of litigation--In first round, as stated, petitioner had failed to make out his case in which also each and every aspect of matter was considered even criminal liability was considered by Supreme Court in CPLA No. 1922 of 2001--Departmental proceedings initiated against him were on basis of misappropriation and using of such standerous, insulting and intemperate language of unbecoming Officer--Held: Civil Servant has deliberately started the second round of litigation without any justification and was hit by principle of res-judiciata. [P. 1100] A
2005 SCMR 948 ref.
Hafiz S.A. Rehman, Sr. ASC for Petitioner.
Respondents not represented.
Date of hearing : 27.3.2006.
Judgment
Abdul Hameed Dogar, J.--Through this petition, petitioner Shahid Wazir seeks leave to appeal against the judgment dated 8.1.2006 passed by Federal Service Tribunal, Islamabad, (hereinafter referred to as `the Tribunal') whereby Appeal No. 146(P) CS of 2003 filed by him for his reinstatement in service was dismissed.
Briefly, stated the facts of the instant petition are that petitioner was working as Executive Engineer in he Federally Administered Tribal Areas Development Corporation (FATA). On 27.1.2000, he was served with a charge-sheet on account of embezzlement and misconduct under the Government Servants (Efficiency and Discipline) Rules, 1973. As a result of disciplinary proceedings, the penalty of removal from service was imposed upon him. The said order was challenged by petitioner through Appeal No. 65(P) CE/2000 before the Tribunal which was dismissed on 28.5.2001. Feeling aggrieved, petitioner assailed that judgment before this Court through Civil Petition No. 1922 of 2001 which was also dismissed on 23.4.2002.
Beside disciplinary proceedings, a criminal case vide FIR No. 10 under Sections 409/420/468/471/109 PPC read with Section 5(2) of Prevention of Corruption Act, 1947 was also registered on 25.8.2000 against the petitioner, his co-accused Muhammad Saleem Khan and Rasheed Ahmad at Police Station FIA, Peshawar. A formal charge was framed against them by the learned Special Judge (Central), Anti-Corruption, Peshawar. On conclusion of trial, the petitioner was acquitted by the trial Court vide judgment dated 30.4.2003 for want of evidence. Feeling aggrieved, respondents challenged the said order of acquittal before the Peshawar High Court by filing Criminal Appeal No. 314 of 2003 which was dismissed vide order dated 12.9.2003 on the ground that the same was not filed by a competent authority inasmuch as the case against petitioner and his co-accused was investigated, inquired into and tried under the provisions of the Central Anti-Corruption Laws and Rules and in view of this fact the Federal Government alone was competent to file an appeal against an order of acquittal passed by the trial Court. Respondent challenged this order through Civil Petition No. 158-P of 2003 before this Court which was also dismissed on 2.5.2005.
After acquittal from the Criminal Court, petitioner filed departmental appeal before Respondent No. 2 for reinstatement in service on 19.5.2003 which was rejected vide order dated 19.6.2003. This order was challenged by the petitioner in the Tribunal by filing Appeal No. 146(P)CS of 2005 which was dismissed vide impugned judgment.
We have heard Hafiz S.A. Rehman, learned Sr. ASC for the petitioner at length and have gone through the record and proceedings of the case in minute particulars.
Learned counsel for the petitioner contended that petitioner was tried by Central Judge Anti-Corruption in case FIR No. 10 dated 25.8.2000 under Sections 409/420/468/471/109 PPC in which he was acquitted. The order of his acquittal was maintained by the learned High Court as well as by this Court. He further submitted that since the petitioner has been exonerated from the criminal charges by a Criminal Court, therefore, there could be no justification to impose upon him, the major penalty of removal from service as the very basis for the penalty had not been found justifiable. It was further argued that the departmental punishment was discriminatory in nature. Even otherwise the major penalty of removal of the petitioner from service was not warranted in the facts and circumstances of the case. He contended that a civil servant could not be penalized by departmental authority if he had been acquitted by a Criminal Court on merits, on the same charge.
The departmental penalty was imposed on he petitioner, not on account of criminal proceedings but, as a consequence of departmental inquiry having been conducted in which the petitioner was found guilty of the charge though he was afforded full opportunity of defence. The departmental and criminal proceedings can be taken simultaneously and independent of each other. In this context, this Court in the case reported as Dawood Ali vs. Superintend of Police and others (2005 SCMR 948) while dealing with the same aspect has held as under:
"The departmental penalty was imposed on the petitioner, not on account of criminal proceedings but, as a consequence of departmental inquiry having been conducted in which the petitioner was found guilty of the charge. It is now well-settled that the departmental and criminal proceedings can be taken simultaneously and independently of each other."
Irrespective of the above, this is the second round of litigation. In the first round, as stated, the petitioner had failed to make out his case in which also each and every aspect of the matter was considered even the criminal liability was considered by this Court in CPLA No. 1922 of 2001. Departmental proceedings initiated against him were on the basis of misappropriation and using of such standerous, insulting and intemperate language of unbecoming Officer.
In view of the above discussion, it is clear that the petitioner has deliberately started the second round of litigation without any justification and is thus hit by the principle of res judicata.
For what has been discussed above, we are of the considered opinion that the impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither, there is misreading, nor non-reading of material evidence, or misconstruction of facts and law. Moreover, no question of general public importance as contemplated under Article 212(3) of the Constitution is involved in this case. Accordingly, the petition being devoid of substance is dismissed and leave to appeal refused.
(Asif Nazeer Awan) Appeal refused.
PLJ 2006 SC 1101 [Appellate Jurisdiction]
Present: Javed Iqbal & Muhammad Nawaz Abbasi, JJ.
MUHAMMAD AKRAM--Petitioner
versus
STATE--Respondent
Jail Petition No. 326 of 2004, decided on 30.12.2005.
(On appeal from the judgment of Lahore High Court, Lahore, dated 21.4.2004 passed in Cr. A. 337/2003 and Criminal Revision 297 of 2003).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973 Art. 185(3)--Conviction & sentence of life imprisonment--Appreciation of evidence--Held: Occurrence took place in broad day light in the street near the residence of parties & witnesses--Presence of witnesses were quite natural and beyond doubt--Witnesses had no enmity or malice against accused--Their testimony was supported by medical evidence--Accused had admitted the occurrence with his own version--Accused on the instigation of acquitted accused, fired a fatal shot at the sensitive part of the body of deceased--It could neither be said as an accidental murder nor a sudden occurrence--Held: Element of premeditation or intention to kill was missing and case would fall within ambit of S. 302(c) for purpose of punishment--Conviction & sentence was not interfered--Leave refused. [Pp. 1102 & 1103] A
Mr. Zulfiqar Khalid Maluka, ASC for Petitioner.
Mr. Muhammad Zaman, ASC for State.
Date of hearing : 30.12.2005.
Judgment
Muhammad Nawaz Abbasi, J.--The petitioner, through the instant jail petition, has sought leave to appeal against the judgment, dated 21.4.2004, passed by Lahore High Court, Lahore, whereby the conviction and sentence of life imprisonment awarded to him by the trial Court under Section 302 (b) PPC with direction to pay Rs. 50,000/- to the legal heirs of deceased and in default thereof to suffer S.I. for six months was maintained with grant of benefit of Section 382-B, Cr.P.C. and his appeal alongwith the criminal revision filed by the complainant for enhancement of his sentence, was dismissed.
The brief facts of the case in the background, are that on 29.8.2001, at 3 p.m. Muhammad Siddique complainant, alongwith Khalid Pervez and Liaquat Ali (PW7) was present in front of his house when his son, Muhammad Rafique within their right was caught by Mst. Nasreen in the street in front of her shop and Muhammad Akram, in her call coming out of her house armed with .30 bore pistol, fired a shot at Muhammad Rafique which proved fatal to his life. The motive for the occurrence as stated was that Mst. Nasreen was carrying illicit relation with Muhammad Akram who was living in her house and on the objection of Muhammad Rafique to their immoral activities, they developed enmity against the deceased. Khalid Iqbal, inspector, SHO (PW10) on reaching at the place of occurrence, took blood-stained earth into possession from the spot, prepared injury statement (Ex-PB) and inquest report (Ex-PC) of the dead body. Subsequently, on 7.9.2001 at the instantance of petitioner he recovered the weapon of offence (pistol) vide memo (Ex-PG) and on completion of investigation challaned the petitioner and Mst. Nasreen to face the trial. The prosecution, in order to prove its case, produced ten witnesses in all and learned DDA having tendered in evidence the report of chemical examiner (Ex-PK) and the Serologist (Ex-PL) closed the prosecution evidence. The petitioner and his co-accused in their statements under Section 342 Cr.P.C. denied the charge and pleaded false implication. The learned trial judge at the conclusion of the trial acquitted Mst. Nasreen and having found the petitioner guilty of the charge convicted and sentenced him as stated above.
Learned counsel for the petitioner pointing out certain contradictions and discrepancies in the prosecution evidence has contended that the occurrence did not take place in the manner as stated by the eye-witnesses and their claim of having seen the occurrence would be negated in the light of exaggeration apparent in their evidence. The learned counsel submitted that while putting the prosecution version in juxta position to the defence plea, the situation arising would strongly suggest that it was not pre meditated occurrence rather it happened suddenly and would not be an intentional murder. The learned counsel argued that the circumstances leading to the fateful occurrence would bring it within the ambit of Section 302(c) PPC for the purpose of punishment.
Learned counsel for the State on the other hand has contended that the parties were close neighbourer and except the objection of deceased regarding the illicit connection of the petitioner with Mst. Nasreen, there was no serious enmity between them and that the ocular account was furnished by the quite independent and trust worthy witnesses duly supported by the medical evidence and attending circumstances.
The careful examination of the evidence would show that since the occurrence had taken place in he broad day light in the street near the residence of the parties and witnesses therefore, the presence of eye witnesses at the scene of occurrence in the street was quite natural and beyond any doubt. The incident happened within the sight of eye witnesses, who have no enmity or malice against the petitioner and their testimony duly supported by medical evidence having been found confidence inspiring, truthful and of un impeachable character was concurrently relied upon by the two Courts. The petitioner has admitted the occurrence with his own version and thus the only question requiring determination would be whether the defence version or the prosecution story was more plausible and near to truth. The detail scrutiny of evidence would not indicate a remote possibility of the happening of occurrence as suggested in the defence version, therefore, the contention of the learned counsel that since it was a sudden occurrence, therefore, the element of premeditation or the intention to kill was missing and case would fall within the ambit of Section 302(c) for the purpose of punishment has no substance. The evidence is that petitioner on the instigation of Mst. Nasreen (acquittted accused) fired a shot at the most sensitive part of the body of deceased which proved fatal to his life and thus it would be neither an accidental murder nor a sudden occurrence to bring the case within the purview of Section 302(b) PPC.
In the light of forgoing discussion we do not find any substance in this petition and the same is accordingly dismissed. Leave is refused.
(Javed Rasool) Leave refused.
PLJ 2006 SC 1103 [Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Nasir-ul-Mulk, JJ.
SARFRAZ ALI KHAN, ASSISTANT DIRECTOR, FIA, RAWALPINDI--Appellant
versus
FEDERATION OF PAKISTAN and others--Respondents
Civil Appeal No. 1225 of 2001, decided on 24.11.2005.
(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 2.2.2001 passed in Appeal No. 903 (R) of 1999).
Service Tribunal Act, 1973 (LXX of 1973)--
----S. 4(b)--Virtue of--Proviso--Promotion--Held: A person cannot be superseded/ignored on the ground of ailment unless he is medically categorized on the basis of medical examination conducted by competent medical authority in accordance with the rules--Aggrieved Government Servant might avail remedy of appeal if civil servant was deprived of such legitimate right of promotion in an illegal & improper manner--Case remanded for decision afresh. [P. 1106] A & B
Mr. Fazal Ellahi Siddiqui, ASC & Mr. Ejaz Muhammad Khan, AOR (absent) for Appellant.
Raja Muhammad Irshad, Dy. A.G. and Raja Abdul Ghafoor, AOR for Respondents.
Date of hearing : 24.11.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal with leave of the Court has been directed against the judgment dated 2.2.2001 passed by the Federal Service Tribunal, Islamabad, whereby the appeal filed by the present appellant seeking direction for his promotion from the date on which his juniors were promoted, was dismissed with the observation that by virtue of Proviso (b) to Section 4 of the Service Tribunal Act, 1973, such an appeal was not maintainable.
"1. In this case the petitioner was declared unfit for promotion but the requirement of law as laid down in FR 10-A (a) was not complied with as there was no medical examination of the petitioner or any special medical examination in order to determine that he was medically unfit.
In Annual Medical Reports the petitioner had been declared fit for promotion.
The petitioner had never been declared in category `C' in the Annual Medical Examination and, therefore, he could not be declared unfit particularly in the absence of Annual Medical Examination."
The sole question involved in the present appeal for determination relates to the fitness of a person to hold a particular post or to be promoted to the higher grade which include his physical fitness and whether the Selection Board can ignore a person by declaring him medically unit without his medical examination by a medical Board as envisaged under the rules to ascertain his physical and mental fitness to accept the high responsibility or to retain him in service.
Learned counsel for the appellant placing reliance on FR 10(a) has contended that appellant having clear service record has fulfilled required qualification for promotion but the Selection Board without any legal justification superseded him with the observation that notwithstanding the recovery of appellant from the ailment, he would still not be able to make any contribution.
Learned counsel for the appellant has contended that the supersession of the appellant on the basis of his ailment, without ascertaining of the question of his physical fitness or otherwise through the medical examination by a medical board as provided under the rules was not legal.
Learned Deputy Attorney General has conceded the proposition that the physical fitness of a civil servant to accept the higher responsibilities or to retain him in service, cannot be determined by the Selection Board without medical examination by a medical Board as provided under FR 10-A, (a) as under:--
"F.R. 10-A, (a) The authority competent to fill the post held by a Government servant may require him to appear before a medical authority for medical examination if, in the opinion of the competent authority, the Government servant is suffering from a disease which renders him unfit for the proper and efficient discharge of his duties or from a disease which is communicable and is likely to endanger the health of others Government servants."
The plain reading of the above provision would show that without obtaining medical opinion about the mental and physical fitness of a person he cannot be declared unfit to be inefficient to discharge his duty or in the nature of his decease, his further retention in service is not proper. The competent authority may direct for medical examination of a person if he is found suffering from a decease which may render him unfit to discharge his functions effectively and thereby require him to appear before Medical Board to determine the question of his suitability for further service in the light of opinion of medical authority. The question of medical fitness or a disability of a person to discharge his duty cannot be determined without his medical examination and the law does not permit to declare a person medically unfit to hold a particular post on the basis of the remarks of reporting or countersigning authority in the A.C.R. regarding his poor health or that he was suffering from a deceased which may endanger the health of other Government servants.
The observation of the Selection Board regarding the fitness of the appellant was based on the remarks in the ACR whereas according to the instructions contained in FR 10-A(a) and supplementary Rules, 3 to 4-A of the
Compilation of Fundamental & Supplementary Rules, Vol. 1, the mental and physical fitness of a Government servant on the first appointment or during service must be ascertain on the basis of his medical examination. The
Instruction No. 4.15 contained in "A Guide to the Performance
Evaluation" issued in 1991 by the Cabinet Secretariat Management and
Services Division, divided the Government servants into three categories.
Category A' consists of Government servants without any mental or physical disability and the categoryB' relates to the Government servants of partial disability whereas Category `C' relates to complete incapacitation. In view thereof, the health condition of a Government servant to determine his category must be ascertained on the basis of the opinion of medical Authority and not in the light of personal observation of the departmental authorities or the selection board.
In the light of foregoing discussion we hold that a person can not be superseded/ignored on the ground of ailment unless he is a medically categorised on he basis of medical examination conducted by the competent medical authority in accordance with the rules on the subject and in that an aggrieved Government servant may avail the remedy of appeal under Section 4(b) of Service Tribunals Act, 1973 if he was deprived of his legitimate right of promotion in an illegal manner and improper exercise of jurisdiction.
In the light of foregoing reasons, we set aside the judgment of the Tribunal impugned in the present appeal and send the case back to the competent authority for consideration of the case of appellant for promotion on the basis of his eligibility and the service record in accordance with law within three months. This appeal is accordingly allowed with no order as to costs.
(Javed Rasool) Appeal allowed.
PLJ 2006 SC 1106 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan; Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ.
ZAFAR IQBAL, EST (TECH.) GOVERNMENT HIGH SCHOOL, TEH. & DISTT. SAHIWAL and another--Appellants
versus
DIRECTOR SECONDARY EDUCATION, MULTAN DIVISION and 3 others--Respondents
C.A. No. 2522 of 2001, decided on 15.12.2005.
(On appeal from the judgment of Lahore High Court, Multan Bench, dated 25.11.1998 passed in I.C.A. No. 227/98)
(i) Punjab Education Department (School Education) Recruitment Rules, 1987--
----Sched.--Promotion--Claim of petitioners based on equivalence of qualification of appellants--Legality--Question of equivalence of qualification of appellants for purpose of promotion under amended rules was neither raised at any stage nor was considered by appropriate forum--Such question, therefore, cannot be taken for the first time before Supreme Court for ascertaining right of appellants for promotion to higher grade--Government is, however always empowered to change promotion policy and domain of Government to prescribe qualification for particular post through amendment in relevant rules is not questionable--Notwithstanding fulfillment of required qualification and other conditions contained in rules, promotion cannot be claimed as or vested right. [P. 1110] A
(ii) Punjab Education Department (School Education) Recruitment Rules, 1987--
----Sched.--Constitution of Pakistan (1973), Art. 185--Qualification for promotion to specified post on basis of teaching experience relevant subject--Such plea has not substance in as much as appellants were never considered for promotion on such basis or being eligible for promotion at any stage price to amendment in rules in question--Teaching experience, however, could not treated as equivalent qualification under amended rules as experience in a particular filed cannot be considered as substitute for the basis qualification prescribed under rules to hold a post--Without fulfillment of requirement of qualification prescribed under rules for specified post, appellants could not claim promotion on basis of their experience as of right. [P. 1110] B
Mr. Muhammad Iqbal Khan, ASC for Appellant, Mr. S. Sajjad Hussain Shah, A.A.G. for Respondents.
Date of hearing : 15.12.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court has been directed against the judgment dated 25.11.1998 passed by a Division Bench of Lahore High Court, Multan Bench, in an ICA arising out of a constitution petition. The appellants, EST (Tech) of the Education Department, Government of Punjab, while serving in the Multan Region, filed a writ petition seeking direction to the Director, Secondary Education, Multan Division for their promotion as SST (Technical) on the basis of their entitlement under the Punjab Education Department (School Education) Rules, 1987. The writ petition was dismissed by a learned single Judge in chamber vide judgment dated 24.9.1997 and further a Division Bench of the High Court in ICA maintained the judgment rendered in the writ petition with the observation that after the amendment in the Punjab Education Department (School Education) Recruitment Rules, 1987 vide Notification dated 30.7.1992 the appellants were not eligible for promotion as SST (Tech) and notwithstanding their eligibility prior to the amendment in the rules, the promotion being not a vested right, they could not claim it as of right. Leave was granted in this appeal vide order dated 6.12.2001 in the following terms:
"Leave to appeal is sought against judgment dated 25.11.1998 passed by a Division Bench of the Lahore High Court, Multan Bench, Multan dismissing ICA No. 227 of 1998 with the result that the judgment dated 30.9.1998 by a learned judge in Chambers dismissing Write Petition No. 7462 of 1997 on 25.11.1998 was upheld.
Learned counsel for the petitioners, inter alia, contended that it was way back in the year 1988 that the appropriate quarters were required to submit service books of both the petitioners accompanied by other relevant papers so that the then Director Secondary Education Multan could be asked to consider their cases for appointment as SST (Technical). The matter was not resolved and during the interregnum Notification dated 30.7.1992 was issued prescribing qualification for appointment of SST (Technical) as Matric with Diploma in Industrial Arts Education from Government Technical Teachers Training College, Faisalabad with two years teaching experience from a Government Institution after acquiring the Diploma or equivalent qualification. The precise contention is that the case of the petitioners were initiated in the year 1988 and the then qualifications were duly met. The increase in the educational qualifications through Notification dated 30.7.1992 did not stop at requiring two years teaching experience from a Government Institution but required that either Diploma or equivalent qualifications would also be relevant for persons similarly placed as the petitioner.
After hearing the learned counsel for the petitioners and the learned Additional Advocate General Punjab we are inclined to grant leave to consider whether the case of the petitioners has received due consideration at the level of the High Court both before the learned judge in Chambers and the ICA Bench by keeping in view the requirements which were current in the year 1988 as also in the year 1992. Order accordingly."
The grievance of the appellants, who were employed in the Education Department, Government of Punjab as Elementary School Teacher (EST Technical BPS-15) was that before the amendment in the rules, they were possessing required qualification and experience for promotion as SST (Technical BPS-16) but the process of their promotion was knowingly delayed and subsequent to the amendment in the rules in 1992, they were not considered on the pretext of being not qualified for promotion as SST (Technical). The claim of the appellants was that they while holding Diploma of Associate Engineers (Elect.) from Polytechnic Institute Sahiwal duly recognized by Punjab Board of Technical Education, Lahore, were entitled to the promotion prior to the amendment in rules and in any case they having equivalent qualification to that of Diploma in Industrial Art Education from Government Technical Teachers Training School, Faisalabad, would be qualified for promotion as SST (BPS-16) even under the amended rules. The notification dated 30.7.1992 by virtue of which the rules in question were amended is reproduced hereunder:--
"GOVERNMENT OF THE PUNJAB SERVICES, GENERAL ADMINISTRATION & INFORMATION DEPARTMENT NOTIFICATION
The 30th July 1992
No: SO R III-1-13/85:--In exercise of the powers conferred on him by Section 23 of the Punjab Civil Servants Act, 1974 (VIII of 1974, the Governor of the Punjab is pleased to direct that in the Punjab Education Department (School Education) Recruitment Rules, 1987, the following further amendments shall be made, namely:--
AMENDMENT
I. In the schedule after the existing entries at Serial No. 10 the following new entires shall be inserted:--
II. The Rules mentioned below shall stand amended to the extant they are inconsistent with these rules:--
(i) The West Pakistan Education Department Subordinate Regional Service (Teaching Administrative Branch) (Women's Section Rules, 1965).
The question of equivalence of the qualification of appellants for the purpose of promotion under the amended rules was neither raised at any stage nor was considered by the appropriate forum and consequently, the question of equivalence cannot be taken for the first time before this Court for ascertaining the right of appellants for promotion to higher grade. The Government is always empowered to change the promotion policy and the domain of the Government to prescribe the qualification for a particular post through amendment in the relevant rules, is not changeable. This is also a settled law that notwithstanding fulfillment of the required qualification and other conditions contained in the rules, the promotion cannot be claimed as a vested right.
The contention of the learned counsel that appellants would be deemed to be qualified for promotion as SS Teachers (Tech) on the basis of their teaching experience in the relevant subjects has no substance. The appellants were never considered for promotion on the basis of their teaching experience or eligibility as claimed by them at any stage prior to the amendment in the rules in question and further the teaching experience could not be treated as an equivalent qualification under the amended rules because the experience in a particular filed cannot be considered as substitute for the basic qualification prescribed under the rules to hold a post. The teaching experience in the relevant field without the basic qualification, would not be sufficient to declare the appellants eligible to hold the post of SS Teachers under the rules and in view thereof, we may observe that without fulfillment of the requirement of the qualification prescribed under the rules for the post of SST (Technical), the appellants could not claim promotion on the basis of their experience as of right.
The upshot of above discussion is that unless the qualification of Diploma of Associate Engineers (Electrical) held by the appellants is declared equivalent qualification for promotion as SS Teachers (Tech), the appellants cannot merely on the basis of their experience in the relevant subjects, claim promotion and consequently this appeal is dismissed. There will be no order as to costs.
(Aziz Ahmad Tarar) Appeal dismissed.
PLJ 2006 SC 1111 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar, Mian Shakirullah Jan and Raja Fayyaz Ahmed, JJ.
AHMAD BAKHSH--Petitioner
versus
STATE--Respondent
Jail Petition No. 151 of 2003, decided on 5.12.2005.
(On appeal from the judgment dated 24.2.2003 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No. 244-J of 2001)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction of sentence--Assailed--Prosecution has successfully proved case against accused by producing cogent evidence--Prosecution has successfully brought on record evidence of complainant, extra-judicial confession, recovery of dead body on pointation of accused and recovery of string--Complainant and PWs has categorically stated that accused voluntarily confessed to kill deceased by strangulation because he suspected her to be lady of bad-character--Held: To substantiate his stance, accused could not even refer to single person with whom she had earlier eloped or any person from whose custody she was recovered--Petition devoid of force is accordingly dismissed and leave declined. [P. 1112 & 1113] A & B
Mr. Rafaqat Hussain Shah, ASC for Petitioner.
Mr. S.M. Siddique Khan, ASC for Respondent.
Date of hearing: 5.12.2005.
Order
Abdul Hameed Dogar, J.--This petition is directed against the judgment dated 24.2.2003 passed by learned Judge in Chamber of the Lahore High Court, Lahore whereby Criminal Appeal No. 244-J of 2001 filed by petitioner was dismissed and his conviction and sentence under Section 302(b) PPC to imprisonment for life was maintained whereas co-accused Mst. Sakina and Mst. Allah Wasai were acquitted from the charges.
The background for filing the instant petition is that Mst. Shehnaz Bibi was married to Allah Ditta, brother of petitioner. Allah Ditta used to work in Karachi whereas Shehnaz Bibi used to live in the Abadi of village Machhiana, District Jhang. The case of the prosecution against the petitioner is that FIR No. 96 was lodged on 28.3.1999 with P.S. 18-Hazari, District Jhang, on the statement of Riaz Hussain complainant father of deceased alleging therein that petitioner and acquitted accused Mst. Ghulam Sakina and Mst. Allah Wasai had killed Mst. Shehnaz 4/5 days prior. It was the petitioner, who went to the house of complainant and disclosed that his daughter Mst. Shehnaz had eloped with someone and was missing. On inquiry from the petitioner, he disclosed that he had killed Mst. Shehnaz by strangulation in presence of Muhammad Mumtaz and Nawaz PWs. He further disclosed that since he suspected her character, therefore, he has murdered and buried her. He also pointed out the place of burial and dug out the dead body.
On autopsy, lady Dr. Razia Afzal WMO, PW-2, found the following injuries on the body of deceased:--
"1. Tip of the nose was cut.
Contused welling in area of 15 x 5 cm present 1 cm above sternal notch.
A contusion mark 4 cm x 10 cm on the front of left arm starting from shoulder downward.
A contusion marks 38 cm x 12 cm on front of right arm 4 cm below the right shoulder.
A contusion mark in front of right side of chest in an area of 15 x 20 cm.
A contusion marks in an area 6 x 4 cm on the front of left leg, lower part 7 cm below the knee joint.
At trial, prosecution examined 08 witnesses in all. Petitioner in his statement under Section 342 Cr.P.C. denied the case and claimed that deceased was a lady of bad character and used to go on her own and return on many occasions. The complainant Riaz Hussain and PWs dug out that place and recovered the dead body of Mst. Shehnaz Bibi on their pointation.
We have heard Mr. Riffaq Hussain, learned counsel for the petitioner and Mr. S.M. Siddique Khan, learned ASC for the State and have gone through the record and proceeding of the case in minute particulars. Learned counsel though argued the matter at some length, but could not refer to any illegality, infirmity, misreading or non-appreciation of evidence.
The prosecution has successfully proved the case against the petitioner by producing cogent evidence. In this case, prosecution has successfully brought on record the evidence of complainant, the extra-judicial confession, recovery of dead body on the pointation of the petitioner and recovery of string. Riaz Hussain complainant and Mumtaz Nawaz PWs have categorically stated that the petitioner voluntarily confessed to kill the deceased by strangulation because he suspected her to be a lady of bad character. But to substantiate his stance, the petitioner could not even refer to a single person with whom she had earlier eloped or any person from whose custody she was recovered. Accordingly, we do not find any reason to interfere with the impugned judgment.
Resultantly, the petition being devoid of force is dismissed and leave declined.
(Aliya Sattar Chaudhry)
PLJ 2006 SC 1113 [Appellate Jurisdiction]
Present: Khalil-ur-Rehman Ramday and Muhammad Nawaz Abbasi, JJ.
ATIQ-UR-REHMAN (MINOR) through SAGHEER AHMED (real father) and another--Appellants
versus
MUHAMMAD AMIN--Respondent
C.A. No. 846 of 2005, decided on 20.9.2005.
(On appeal from the judgment of Lahore High Court, Lahore dated 3.3.2005 passed in C.R. No. 2084/03)
(i) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Suit for pre-emption--Performance of Talbs in mandatory requirement--Pre-emptor without satisfying performance of talbs in accordance with requirements of S. 13 of Punjab Pre-emption Act 1991, cannot succeed and unless specific date of knowledge of sale was established and also the Majlis in which declaration was made for exercise of right of pre-emption, requirement of talb-e-muwathibat was not fulfilled--Wherefirst talb was not proved to have been made in accordance with law, performance of second talb i.e., talb-i-ishhad also cannot be proved--Right of pre-emption being piratical right, pre-emptor must prove essential conditions for exercise of such right strictly in accordance with law. [Pp. 1117] A
(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Constitution of Pakistan (1973), Art. 185--Suit for pre-emption--Pre-emptor having knowledge of mutation of sale much before making declaration for excise of right of pre-emption, has not been able to substantiate his claim of making of talb-i-muwathibat and talb-i-ishhad in accordance with requirement of law--Pre-emptor could not prove particular date of knowledge of sale thus, he failed to prove burden of proof relating to performance of talbs strictly in accordance with provisions of S. 13, Punjab Pre-emption Act 1991--High Court finding of fact on question of performance of talbs through re-appraisal of evidence in exercise of revisional jurisdiction was contrary to law, therefore, the same was set aside while that of Appellate Court, whereby suit for pre-emption was dismissed, was restored. [P. 1118 & 1119] B
2000 SCMR 329; 2005 SCMR 231; PLD 2003 SC 315 and 2001 SCMR 298, ref.
Syed Fayyaz Ahmad Sherazi, ASC for Appellants.
Mr. M. Anwar Bahour, ASC for Respondent.
Date of hearing : 20.9.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This direct appeal has been filed against the judgment dated 3.3.2005 passed by a learned Judge in chamber in the Lahore High Court, Lahore, in revisional jurisdiction, in a pre-emption matter.
The essential facts for disposal of this appeal in the background are that land measuring 46 kanals 17 marlas situated in muaza Wazirke Chatta Tehsil Wazirabad District Gujranwala, was purchased by the appellants vide Mutation No. 239 dated 28.12.1998 against which Muhammad Amin, respondent herein, having claimed superior right of pre-emption firstly on the ground of co-owner in the land and secondly, owner of the adjacent land with common source of irrigation, instituted a suit for pre-emption in the Civil Court at Gujranwala on 28.4.1999. The plaintiff/ respondent asserted in the plaint that he on coming to know about the transaction of sale through Abdul Aziz and Muhammad Suleman on 14.4.1999, at his dera there and then announced for the exercise of right of pre-emption in performance of talab-e-muwathabat and on the next day sent a notice of talab-e-ishhad under registered cover to the appellants (vendee). The suit was resisted by the appellants on various grounds but the main contest was regarding non performance of talabs in accordance with the provisions of Section 13 of Punjab Pre-emption Act, 1991. The learned trial Judge, having come to the conclusion that tables were performed in accordance with law, decreed the suit vide judgment dated 3.1.2002 but a learned Additional District Judge, Gujranwala, camp at Warizabad, in appeal filed by the present appellants, vide judgment dated 6.10.2003 reversed the findings of the trial Court on the issue of talabs and dismissed the suit. The judgment of the appellate Court was assailed by the respondent before the Lahore High Court in a civil revision and a learned Judge in chambers in the High Court vide impugned judgment, set aside the judgment and decree passed by the appellate Court and restored that of the trial Court.
The appellants at the first instance, filed a petition for leave to appeal before this Court against the impugned judgment but subsequently realizing the legal position regarding the maintainability of direct appeal, withdrew the civil petition and filed the present appeal, after the expiry of the normal period of limitation provided under the law for filing such an appeal. The learned counsel for the appellants has submitted that due to the bona fide mistake, the appellants initially filed a petition for special leave to appeal but later, after withdrawing the same filed this appeal therefore, the delay caused in filing the appeal was not deliberate and the same may be condoned in the interest of justice. Learned counsel for the respondent, has not been able to show us that the appellants were negligent in not filing the appeal within the time or that the filing of the civil petition was not in good faith or it being not a bona fide mistake, would not be considered a valid ground for condonation of delay. In the light of the explanation given by the learned counsel for the appellants and the circumstances leading to the delay in filing the appeal, it appears that the delay was not intentional and deliberate rather it was result of the bona fide mistake and consequently, we condone the same and proceed to decide this appeal on merits.
Learned counsel for the appellants has contended that without fulfillment of the requirement of talab-e-Muwathabat in accordance with the provisions of Section 13 of Punjab Pre-emption Act, 1991, the performance of talab-e-ishhad would be meaningless, and unless the first talab is proved to the satisfaction of requirement of law, the performance of second talab has no significance. The learned counsel has argued that in pre-emption suit the plaintiff is under heavy burden to prove the performance of talabs in accordance with the law to exercise the right of pre-emption but in the present case, the respondent has not been able to bring on record any convincing evidence of performance of talb-e-Muwathabat and consequently talb-e-ishhad was also not proved in terms of Section 13 of the Punjab Pre-emption Act, 1991.
The learned counsel for the respondent, on the other hand, has submitted that there is no cavil to the proposition that the performance of talabs is an essential pre-requisite for exercise of right of pre-emption and it is the requirement of law to perform talb-e-Muwathabat immediately on acquiring knowledge of sale whereas talab-e-ishhad is made within 14 days of the date of making talab-e-Muwathabat in the manner as provided in Section 13 of Punjab Pre-emption Act, 1991, but it is not essential for the pre-emptor to prove the performance of talab-e-muwathabat with reference to the specific date and place rather proof of a tentative date of performance of the first talab would be sufficient to fulfil the requirement of second talab with reference to the said date for exercise of right of pre-emption and in support thereof, placed reliance on Noor Muhammad vs. Abdul Ghani (2000 SCMR 329).
For the purpose of appreciation of the above contentions raised by the learned counsel for the parties, it is essential to examine the provisions of 13 of the Punjab Pre-emption Act, 1991, which provides as under:--
"13. Demand of pre-emption.--(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:--
(a) talb-i-Muwathibat;
(b) talb-i-Ishhad; and
(c) talb-i-Khusumat
Explanations
I. "talb-i-Muwathibat" means immediate demand by a preemptor in the sitting or meeting (majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre-emption.
Note. Any words indicative of intention to exercise the right of pre-emption are sufficient.
II. "Talb-I-Ishhad" means demand by establishing evidence, III. "Talb-I-Khusumat" means demand by filing a suit.
(2) Where the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb-i-Muwathibat.
(3) Where a pre-emptor has made Talb-e-Mawathibat under sub-section (3), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due to the vendee, confirming his intention to exercise the right of pre-emption:
Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-e-Ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of talb-i-muwathibat under Subsection (2) and Talb-i-Ishhad under sub-section (3), he shall make talb-i-khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."
The legal position emerged is that right of pre-emption cannot be claimed without filfillment of the requirement of talab-e-muwathabat and talab-e-ishhad and performance of talab-e-muwathabat is pre-requisite for the performance of talab-e-ishhad. The first talab is talab-e-muwathabat which is immediate demand for exercise of right of pre-emption in the sitting or meeting in which the pre-emptor comes to know about the sale and without proving the performance of first talab, the requirement of second talab namely talab-e-ishhad even if fulfilled, is of no consequence. The essential condition to fulfil talab-e-muwathabat is that pre-emptor must declare his intention for exercise of right of pre-emption in presence of witnesses immediately on coming to know about the sale and the performance of the first talab, cannot be proved unless pre-emptor proves through positive evidence the specific date on which he on coming to know about the sale, made declaration for exercise of right of pre-emption. This is settled law that talab-e-muwathabat is the foundation for exercise of right of pre-emption but there is difference of opinion on the question regarding the manner of proving the requirement of this talab. The one view is that proof of tentative date of knowledge of sale is sufficient to fulfil the requirement of talab-e-muwathabat whereas according to other view without proof of specific date of knowledge, the requirement of talab-e-muwathabat is not performed and in consequence thereto, the performance of talab-e-ishhad is also not fulfilled in terms of Section 13 of Punjab Pre-emption Act, 1991. In view thereof, the crucial question for determination would be whether without proof of particular date of knowledge of sale, the performance of talab-e-muwathabat with reference to a tentative date would be sufficient to serve the purpose of law or the date of knowledge of sale and the majlis in which pre-emptor made a declaration for exercise of right of pre-emption must be specifically proved. In Noor Muhammad vs. Abdul Ghani (2000 SCMR 329), this Court held that performance of talab-e-muwathabat may not be essentially proved with reference to the specific date and time or place and the majlis in which the exercise of right of pre-emption was announced but in the subsequent judgments in Muhammad Saleem vs. Khuda Bakhsh (PLD 2003 SC 315), Muhammad Siddique vs. Muhammad Sharif (SCMR 2005 SCMR 1231). Abdul Qayyum through L.Rs. vs. Muslik-e-Alam and another (2001 SCMR 298) and Civil Appeal No. 560 of 1995 (Zarghoon Shah (deceased) through L.Rs. vs. Muhammad Yaqoob Khan) and Civil Petitions Nos. 424 & 528 of 2004 (Fazal Subhan vs. Mst. Sahib Jamala) it was consistently held that requirement of making talab-e-muwathabat without the proof of the date and the meeting in which declaration for exercise of right of pre-emption was made, would not be fulfilled. This is settled proposition of law that the pre-emptor without satisfying the performance of talabs in accordance with the requirement of Section 13 of Punjab Pre-emption Act, 1991, cannot succeed and unless it is established on record the specific date of knowledge of sale and the majlis in which the declaration was made for exercise of right of pre-emption, the requirement of talab-e-muwathabat is not fulfilled and if the first talab is not proved to have been made in accordance with law, the performance of second talab (talab-e-ishhad) also cannot be proved. The right of pre-emption is a piratical right and the pre-emptor must prove the essential conditions for exercise of such right strictly in accordance with law.
The pre-emptor in the present case pleaded the knowledge of sale on 14.4.1999 in the plaint but in his statement in the Court he stated in general terms that he having acquired the knowledge of sale about eight months prior to the date of making the statement, fulfilled the requirement of talab-e-muwathabat and also sent notice of talab-e-ishhad on the next day of making talab-e-muwathabat. The pre-emptor thus without proving the specific date of making talab-e-muwathabat claimed performance of both the talabs on the basis of the notice of talab-e-Ishhad.
The pre-emptor in addition to his own statement, also placed reliance on the statement of two witnesses namely Abdul Aziz (PW2) and Sattar (PW3) who have also in general terms stated that about one year and eight months ago, they on coming to know of the sale, informed the pre-emptor and he in their presence, there and then, made an announcement for the exercise of right of preemption. In rebuttal, Saghir Hussain vendee and his father in their cross-examination denying the claim of pre-emptor of performance of talabs as per requirement of law, stated that at the time of sanction of mutation in the village an announcement was made on loud speaker of the village mosque regarding the transaction of sale and that all concerned, including the pre-emptor had direct knowledge of mutation much before his making of declaration of exercise of right of pre-emption. In the light of the evidence of the parties, the assertion of the vendee that it was not a secret transaction of sale and the pre-emptor having knowledge of the mutation of sale much before making declaration for exercise of right of pre-emption, has not been able to substantiate his claim of making talab-e-muwathabat and talab-e-ishhad in accordance with the requirement of law, is not without substance. The detail examination of the evidence would unambiguously suggest that the pre-emptor having not been able to prove the particular date of knowledge of sale, has not been able to discharge the burden of proving the performance of talab-e-muwathabat and talab-e-ishhad strictly in accordance with the provisions of Section 13 of the Punjab Pre-emption Act, 1991 to succeed in the suit for pre-emption.
The learned Judge in the High Court reversed the finding of fact arrived at by the appellate Court on question of performance of talabs through reappraisal of evidence in the exercise of revisional jurisdiction without pointing out any defect of mis-reading or non reading of evidence or that the conclusion drawn by the appellate Court was contrary to the law. The scope of revisional jurisdiction is confined to the extent of mis-reading or non reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or the conclusion drawn therein is perverse or contrary to the law but the interference for the mere fact that the appraisal of evidence may suggest another view of the matter, is not possible in revisional jurisdiction. There is a difference between the mis-reading, non reading and misappreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of mis-reading or non reading of evidence and the conclusion drawn is contrary to law.
In the light of foregoing discussion, we allow this appeal, set aside the judgment of the High Court, and restore that of the judgment and decree passed by the Appellate Court. There will no order as to costs.
(Aziz Ahmad Tarar) Appeal accepted.
PLJ 2006 SC 1119 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
SHABBIR HUSSAIN--Petitiner
versus
STATE--Respondent
Jail Petition No. 39 of 2004, decided on 26.1.2006.
(On appeal from the judgment dated 16.12.2003 in Cr. Appeal No. 20-J of 2000 by the Lahore High Court, Lahore).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence, assailed--Concurrent findings--Appreciation of evidence--Since counsel appearing or behalf of accused, frankly conceded that both Courts below have rightly convicted and sentenced the accused after evaluating and appreciating ocular the testimony, motive, recovery of weapon of offence and medical evidence while discussing same in detail, Irrespective of above High Court also called Forensic Science Expert in Court who after examining the doctor's, testimony and details of injuries categorically stated that both these injuries were caused from same weapon dispelling the contention of defence counsel raised before High Court that injuries were result of two different type of firearm weapons--Held: No reason to interfere with concurrent findings recorded by two Courts below which were recorded on proper appraisal of evidence--Petition, accordingly dismissed. [P. 1121] A & B
Mr. Muhammad Zaman Bhatti, ASC for Petitioner.
Raja Saeed Akram, Addl. A.G. Punjab for State.
Date of hearing : 26.1.2006.
Judgment
Abdul Hameed Dogar, J.--This jail petition for leave to appeal is directed against judgment dated 16.12.2003 passed by a learned Division of the Lahore High Court, Lahore, whereby Criminal Appeal No. 20-J of 2000 was dismissed and death sentence awarded under Section 302(b) PPC with fine of Rs. 40,000/- as compensation to the legal heirs of deceased or in default to undergo six months S.I. against the petitioner was maintained. Murder Reference No. 23 of 2000 forwarded by the trial Court was answered in affirmative.
Briefly, stated the facts of the case according to the FIR are that on 7.8.1998 at about 11.30 a.m. complainant Muhammad Ramzan alongwith his son Aamer had gone to the house of his sister Mst. Ghulam Fiza. When at about 2.30 p.m. his son started going out of the house of his sister, PW Safi-ul-Hassan son of Mst. Ghulam Fiza came to say them good-bye at the door. As soon as the complainant came out of the door, he saw petitioner Shabbir Hussain, his real brother, standing with pistol. He raised lalkara to tech lesson of filing civil suit and to end the race of complainant and made two successive fires at his son Aamer which hit on front side of his chest near the; right and left nipple who fell down on the ground and died at the spot. The motive of the occurrence was stated to be the dispute over the house and civil litigation. The petitioner fled away from the spot.
On 13.8.1998 the petitioner was arrested and having 7 MM rifle with him at that time. Thereafter, a .30 bore pistol was also recovered at his pointation from his residential quarter in village Ali Chak. On completion of investigation, he was sent up to face trial.
At trial, prosecution examined 11 witnesses in all.
On autopsy, PW-11 Dr. Farooq Ahmed Bungish found the following injuries on the person of deceased Aamer:
(i) A fire-arm injury wound 2 cm x 1 « cm x going inward over the front of upper part of right side of the chest 3 c.m. away and media to the right nipple. No blackening was present. Note: A metallic body recovered beneath the entry wound lying over the rib gage.
(ii) A fire-arm entry wound 1/2 cm x 1/2 cm x margin inverted over the front and middle part of left side of the chest 3 cm away from the mid sternal line, no blackening was present. Exit wound 1 1/2 cm x 1/2 cm back or right side of the chest lower aspect of 2 cm away from the med vertebral line.
Petitioner in his statement recorded under Section 342 Cr.P.C. admitted the motive i.e. filing of civil suit over a dispute of a house in between him and his real brother complainant Muhammad Ramzan father of Aamer deceased. However, he neither examined himself on Oath as required under Section 340(2) Cr.P.C. nor led any evidence in defence.
We have heard Mr. Muhammad Zaman Bhatti, learned ASC for the petitioner and Raja Saeed Akram, Additional A.G. for the State and have gone through the record and the proceedings of the case in minute particulars.
At the very out set learned counsel appearing on behalf of the petitioner frankly conceded that the prosecution has been able to establish its case against the petitioner beyond any shadow of doubt. According to him, in this case the prosecution has put forth eye-witness account furnished by (PW-3) complainant Muhammad Ramzan, real brother of petitioner and father of deceased and PW-4 Safi-ul-Hassan the son of Ghulam Fiza, his as well as the petitioner's real sister. Irrespective of above, PW-5 Muhammad Hanif, brother-in-law of the petitioner and that of complainant has given a straight forward account of the recovery of crime weapon from the petitioner. According to him, both the Courts below has properly appreciated the ocular testimony, medical evidence as well as that of recovery and arrived at proper conclusion.
On the other hand Raja Saeed Akram, Additional Advocate General Punjab has supported the impugned judgment.
Since learned counsel appearing on behalf of the petitioner frankly conceded that both Courts below have rightly convicted and sentenced the petitioner after evaluating and appreciating the ocular testimony, motive, recovery of weapon of offence and medical evidence while discussing the same in detail. Irrespective of above, learned High Court also called Fronesic Science Expert in the Court who after examining the doctor's testimony and details of injuries categorically stated that both these injuries were caused from the same weapon dispelling the contention of the learned defence counsel raised before the High Court that the injuries were the result of two different type of fire-arm weapons.
Accordingly, we do not find any reason to interfere with the concurrent findings recorded by the Courts below which were recorded on proper appraisal of evidence. Resultantly, the petition being devoid of force is dismissed and leave to appeal refused.
(Aliya Sattar Chaudhry) Petition dismissed.
PLJ 2006 SC 1121 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar, Mian Shakirullah Jan & Raja Fayyaz Ahmed, JJ.
RIAZ MASIH--Petitioner
versus
STATE--Respondent
Jail Petition No. 62 of 2005, decided on 7.12.2005.
(On appeal from the judgment dated 11.6.2004 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No. 78-T of 2004).
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 7(b) & (h)--Police Signed to accused with torch to stop--Indiscriminate firing at police party--Recovery of stolen car and crime empties--Conviction and sentence--Challenge to--Accused is habitual car lifter and is involved in so many cases--Police has collected so many articles including registration books and number plates of different vehicles--Prosecution has produced as many as 7 witnesses who have fully implicated accused with commission of offence--Petition is also barred by 198 days for which no plausible explanation has been given--Held: No reason to differ with impugned judgment--Petition dismissed and leave declined. [P. 1123] A & B
Mr. Zulfiqar Ahmad Bhutta, ASC for Petitioner.
Mr. Mehmood Ahmed Sheikh, ASC for State.
Date of hearing : 7.12.2005.
Order
Abdul Hameed Dogar, J.--This petition is directed against the judgment dated 11.6.2004 passed by the Lahore High Court, Rawalpindi Bench whereby Criminal Appeal No. 78-T of 2004 filed by petitioner was dismissed and his conviction and sentence recorded under Section 7(b) of Anti-Terrorism Act to 5 years R.I. with fine of Rs. 10,000/- or in default to further undergo R.I. for 3 months and under Section 7(h) of Anti-Terrorism Act, 1997 to one year R.I. was maintained. Benefit of Section 382-B Cr.P.C. was extended to the petitioner.
Precisely, the allegations against the petitioner was that he alongwith his co-accused fired successive shots on police party while Abdur Razzaq, Inspector AC.LC Headquarter, Golera Sharif, Islamabad, accompanied by Asjad Mehmood S.I. and other police officials were present on patrol duty in Sector I-8 and were checking stolen vehicles. While checking the car, a Suzuki Mehran came rushing from the side of Sector I-8/2 at 8:20 p.m to which Muhammad Akram, Constable gave it signal with a torch to stop but the driver dashed the car towards him in order to hit him but he was saved. The said car had the Plate No. IDL-3571. The complainant party followed the car but the culprits succeeded in running away. However, the petitioner was arrested on 8.8.2003 in some other cases bearing FIR Nos. 275 and 276. He was shown his arrest in these cases on 19.8.2003 and on his pointation the police recovered Registration Book of IDL/3517, ID Card, transfer letter, diary, cheque book, photo copy of bill of entry, note book, another note book, purse containing telephone diary etc, two number plates LXM 6327, two more number plates IDT 6205, two number plates IDK/2013 and 6 number plates, 6 digits of IDM 15 figures, photo copy of ID card, registration book, photo copy of ID card, registration letter, registration book, photo copy of ID card, Transfer letter, registration book, photo copy of ID card, transfer letter and registration book from his house. Police also recovered above mentioned stolen car and crime empties which were sent to Forensic Science Laboratory and the report was positive.
From above narration, it transpires that the petitioner is habitual car lifter and is involved in so many cases. In instant case, police has collected so many articles including registration books and number plates of different vehicles. The prosecution has produced as many as 7 witnesses who have fully implicated petitioner with the commission of offence. Petition is also barred by 198 days for which no plausible explanation has been given.
Accordingly, we find no reason to differ with the impugned judgment, thus petition is dismissed and leave declined.
(Aliya Sattar Chaudhry) Petition dismissed.
PLJ 2006 SC 1123 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Mian Shakirullah Jan, JJ.
MUHAMMAD IQBAL--Petitioner
versus
STATE--Respondent
Jail Petition No. 19 of 2005, decided on 24.1.2006.
(On appeal from the judgment dated 17.1.2005 of the Lahore High Court, Lahore, passed in Criminal Appeal No. 187 of 2000).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Assailed--There appears to be no inherent defect or material lacuna in evidence of both witnesses whose presence at site has been established beyond any reasonable shadow of doubt--Prosecution has fully proved its case by producing cogent and convincing evidence to the extent that it was accused who fired at deceased--Though witnesses were cross-examined yet their evidence was not shattered at all--Held : High Court has already taken lenient view by reducing his sentence from death to imprisonment for life--Further Held: Counsel for accused has failed to point out any illegality or irregularity in impugned judgment warranting interference by High Court--Petition being devoid of force is dismissed and leave to appeal refused. [P. 1125] A
Mr. Hifz-ur-Rehman, ASC for Petitioner.
Ch. Dil Muhammad Tarar, ASC for State.
Date of hearing : 24.1.2006.
Judgment
Abdul Hameed Dogar, J.--Petitioner seeks leave to appeal against the judgment dated 17.1.2005 of a learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeal No. 187 of 2000 filed by him was dismissed and sentence of death awarded by the trial Court was confirmed.
Briefly, stated the facts of the case are that on 10.9.1997 at about 7.00 a.m. complainant Suba alongwith his brother Muhammad Aslam was going to their Dhari from their house. When they reached at some distance from the village Abadi, acquitted accused Nasir Ali crossed them and he went ahead of them. Petitioner Muhammad Iqbal was sitting in a maiz crop. As soon as complainant reached there Nasir Ali acquitted accused informed Muhammad Iqbal about their presence whereupon petitioner suddenly came out of the crop and raised lalkara. He fired with his .12 bore gun which hit Muhammad Aslam on his right thigh who fell down. He raised alarm whereupon Zafar and Mansabdar got attracted and witnessed the incident. The petitioner and acquitted accused Nasir ran away from the spot. Muhammad Aslam succumbed to the injuries while shifting to the hospital. Complainant lodged the report at Police Station Bhowana, District Jhang.
The motive behind the occurrence was an old enmity between the petitioner and the complainant party.
On conclusion of investigation, petitioner was sent up to face trial alongwith acquitted accused, namely, Nisar Ali.
At the trial, the prosecution examined as many as 11 witnesses.
On autopsy, Dr. Saifullah Haral, M.O. (PW-7) found the following injuries on the person of deceased Muhammad Aslam:
(i) Multiple small lacerated ovel wounds of entry in an area of 6 x 5 1/2 cm on back, inner part of right upper thigh with lacerated wounds of exit in an area of 7 x 6 cm on front of thigh. A grazing lacerated wound 2 x 1 cm on inner side of left thigh was also present.
Petitioner and his acquitted accused in their respective statements recorded under Section 342 Cr.P.C., denied the case of the prosecution and claimed innocence. They neither examined themselves on Oath as required under Section 340(2) Cr.P.C. nor led any evidence in defence. However, petitioner tendered in evidence copy of judgment of learned High Court as Ex. PB.
On the conclusion of trial, petitioner was convicted under Section 302(b) PPC and sentenced to death. However, co-accused Nisar Ali was acquitted from the charges.
Being aggrieved, petitioner challenged the judgment in appeal before learned Lahore High Court, Lahore, which was dismissed vide impugned judgment by reducing his sentence to imprisonment for life and imposed a fine of Rs. 50,000/- to be paid as compensation to the legal heirs of the deceased or in default to suffer six months S.I. with benefit of Section 382-B Cr.P.C.
We have heard Mr. Hafz-ur-Rehman, learned ASC for petitioner and Mr. Dil Muhammad Tarar, learned ASC for the State and have gone through the record and the proceedings of the case in minute particulars.
Learned counsel appearing for the State has supported the impugned judgment.
It is mainly contended by the learned counsel for petitioner that the impugned judgment is erroneous, untenable in law and unjust. He maintained that the ocular evidence is contradicted by the medical evidence and suffers from material discrepancies. He pointed out that the case of the prosecution is based on interested and inimical evidence, as such, it requires independent corroboration which is lacking in this case. Learned counsel submitted that on identical evidence co-accused Nisar Ali had been acquitted by the trial Court, therefore, the benefit of doubt should also have been extended to petitioner.
The ocular testimony furnished by PW-8 complainant Soba and PW-8 Zafar was found to be trustworthy by the trial Court as well as the First Appellate Court. There appears to be no inherent defect or material lacuna in the evidence of both the witnesses whose presence at the site has been established beyond any reasonable shadow of doubt. The prosecution has fully proved its case by producing cogent and convincing evidence to the extent that it was petitioner who fired at deceased Muhammad Aslam. Though the witnesses were cross-examined yet their evidence was not shattered at all. Both the eye-witnesses have categorically stated in their statements that the deceased sustained fire-arm injuries. However, it is proved from the record that at the time of incident acquitted accused Nisar Ali was empty handed, therefore, the learned trial Court neither acted illegally nor arbitrarily in extending the benefit of doubt to him. At any event, case of petitioner is distinguishable and not at par with that of co-accused Nisar Ali since acquitted. The learned High Court has already taken a lenient view by reducing his sentence from death to imprisonment for life. The learned counsel for petitioner has failed to point out any illegality or irregularity in the impugned judgment warranting interference by this Court.
For what has been stated above, we do not find any reason to interfere with the impugned judgment. Accordingly, the petition being devoid of force is dismissed and leave to appeal refused.
(Aliya Sattar Chaudhry) Petition dismissed.
PLJ 2006 SC 1126 [Appellate Jurisdiction]
Present: Javed Iqbal, Muhammad Nawaz Abbasi & Raja Fayyaz Ahmed, JJ.
MUHAMMAD AMEER--Petitioner
versus
STATE--Respondent
Jail Petition No. 322 of 2003, decided on 27.12.2005.
(On appeal from the judgment of Lahore High Court, Lahore, dated 27.5.2003 passed in MR 111/99 and Crl. A. 203/99, with Civil Revision No. 186/99).
(i) Pakistan Penal Code, 1860--
----S. 302(b)--Conviction & Sentence--Appreciation of evidence--Held : It was a case of two versions--According to the defence version accused having come to know about immoral act of deceased with his daughter lost self control and due to gairat under grave and sudden provocation, fired at the deceased--It could hardly be suggested that accused was provoked and instead of setting the machinery of law at motion, took the law in his own hands, on the excuse of grave and sudden provocation--Convication and sentence not interfered--Leave refused. [Pp. 1129 & 1130] A
(ii) Criminal Trial--
----Gairat and family honour--Held: The commission of an offence due to gairat or family honour, must be differentiated from the grave and sudden proviocation--The plea of grave and sudden provocation may not be available to an accused who having taken the plea of ghariat and family honour, committed the crime with pre-meditation. [P. 1130] B
Mr. Niaz Ahmed Rathore, ASC for Petitioner.
Ch. Munir Sadiq, ASC for State.
Date of hearing : 27.12.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This petition is directed against the judgment dated 27.4.2003 passed by the Lahore High Court, Lahore in Murder Reference No. 111/99, Crl. A. 203/99 and Criminal Revision No. 186/99 whereby the sentence of death awarded to the petitioner by the learned Sessions Judge, Mianwali, under Section 302(b) PPC was converted into imprisonment for life with the direction to pay compensation of rupees one lac to the legal heirs of deceased under Section 544-A, Cr.P.C. and in default thereof to undergo R.I. for two years. The benefit of Section 382-B Cr.P.C. was also allowed to the petitioner and his criminal appeal with reduction of sentence was dismissed. The murder reference was answered in the negative and criminal revision filed by the complainant was also dismissed.
The prosecution placed reliance on the evidence of motive, ocular account, medical and recoveries and to prove the charge, produced Abdul Rauf (P 7) and Ghulam Sarwar (PW8) as eye witnesses, Dr. Maqbool Mubarik Malik, Medical Officer (PW1), who conducted postmortem examination of the deceased, Qamar Abbas Shah, Halqa patawri (PW2), Nemat Ali, FC (PW3), Mohyuddin (PW4), Muhammad Jamil, FC (PW 5), Muhammad Amir (PW6) and Noor Muhammad, ASI (PW9) who remained associated with the investigation. The deceased sustained the following injuries on his person:--
(i) A fire-arm wound of entry 4 cm x 3 on the front of left side of chest, 4.5 cm from mid-line and 2.5 cm above and medical to left nipple.
(ii) A fire-arm entry wound 6 cm x 4 on the dorsum of left hand between the left index finger and left thumb.
(iii) A fire-arm exit wound 9 cm x 5 on the palmer surface of left hand.
In his opinion the cause of death was hemorrhage and shock as a result of damage to right and left lungs, the heart and other vital organs of the body and Injury No. 1 was grievous and dangerous to life and also sufficient to cause death in the ordinary course of nature and so far as injures Nos. 2 and 3 being grievous also attributed towards killing and that all the injuries were caused fire-arms."
In addition, the prosecution also tendered in evidence the report of chemical examiner (Ex. PN) and that of serologist (Ex-PP).
"I am a driver by profession. I am a poor man. My residential Dera and that of Muhammad Ibrahim, deceased are close to each other. Ameer Sultan a brother of Ibrahim deceased committed rape with my unmarried daughter Mst. Shameem Akhtar as a result she became pregnant. On coming to know about the above said incident, I approached the local MPA Malik Ghulam Shabbir Joya and placed my complaint before him. The local MPA formed a punchait, which was attended and participated by about 2000 people from both the sides. Ameer Sultan and Muhammad Ibrahim admitted before the Punchait that the former had committed zina with Mst. Shameem Akhtar. I demanded the hands of some woman of the family of the complainant party so that my family honour could be vindicated. Muhammad Ibrahim deceased rejected and dismissed my above said proposal by saying that he was not ready to marry any woman of his family with a man of my family as prositute Mst. Shameem Akhtar lived in my house Muhammad Ibrahim proclaimed in presence of the participants of the Punchait proceedings that he would commit zina with Mst. Shameem Akhtar.
On 6.4.1997 my unmarried daughter Mst. Shameem Akhtar went outside of her house in the land near the Dera of Muhammad Ibrahim for cutting grass. Muhammad Ibrahim held her there and committed rape on her. Mst. Shameem Akhtar returned home and narrated the above-said incident to me. I lost my self-control, picked up a gun, reached the spot and killed Muhammad Ibrahim by firing single shot under grave and sudden provocation. I took my daughter Shameem Akhtar to the police station the same day and narrated the above-said incident to the SHO. The SHO did not record my version and instead postponed my arrest till 22.5.1997. The SHO fabricated a false story and dishonestly involved my brothers Muhammad Ramzan and Ghulam Shabbir. We are five brothers. We the three brothers were arrested in this case while the remaining two apprehended in the case of Ameer Sultan. There was non to prosecute our cause before the investigating agency. I preferred to die as the social and moral compulsion did not allow to pocket my insult."
Learned counsel for the petitioner, pointing out discrepancies and contradictions in the statements of eye witnesses, contended that their presence at the spot was highly doubtful and further their deposition was not supported by any independent evidence. The motive set up by the prosecution was not proved as the victim girl of the alleged incident of Zina bil jabr was not produced as witness and similarly, the medical evidence would not provide corroboration to the ocular account. The evidence of recoveries also being not confidence inspiring, could not be relied to be used as corroborative piece of evidence and in the light of statement of petitioner under Section 342 Cr.P.C. contended that even if the prosecution version as such is believed, the cause of the murder being the family honour which was the result of grave and sudden provocation, the conviction and sentence under Section 302 (b) PPC was not justified and at the maximum, the case would fall within the ambit of Section 302 (c) PPC for the purpose of punishment.
Learned counsel for the State on the other hand, has submitted that the petitioner having admitted the occurrence, has not been able to prove the defence plea of grave and sudden provocation, therefore, the conviction and sentence awarded to him would not call for interference.
This is a case of two versions and we having put the prosecution case in juxta position to the defence version, according to which the petitioner having felt insulted because of the immoral act of the deceased, reacted and fired at him, have found that nothing was brought on record to suggest that petitioner at any time, had seen his daughter Mst. Shamim Akhtar and the deceased together at any place. The case of the petitioner was that he having come to know about the immoral act of deceased with his daughter, lost self control and in the heat of patience due to ghairat under grave and sudden provocation fired at the deceased. This version of the petitioner even if is given full weight, still the element of grave and sudden provocation would be missing and it could hardly be suggested that the petitioner on receiving the information about the act of deceased, was provoked and instead of setting the machinery of law at motion against the deceased took the law in his own hands on the excuse of grave and sudden provocation. The commission of an offence due to ghairat or family honour, must be differentiated from the grave and sudden provocation in consequence to which crime is committed in the light of facts and circumstances of each case. The plea of grave and sudden provocation may not be available to an accused who having taken plea of ghairat and family honour, committed the crime with premeditation. The petitioner in the presence case, with the intention to take revenge of the immoral act of the deceased of outraging the modesty of his daughter having prepared himself to commit the crime, armed with gun, went to the place of occurrence and fired successive shots at the deceased, therefore, his action would not be covered by the provisions of Section 302(c) PPC, which may attract in a case, in which the essential ingredients of qatl-i-amd punishable under Section 302(a) and (b) PPC are missing. Learned counsel has also not been able to convince us that the case against the petitioner would not fall within the ambit of Section 302(b) PPC or that it was a case of lesser punishment under Section 302 (c) PPC.
In the light of foregoing discussion, this petition being without any substance, is accordingly, dismissed. Leave is refused.
(Javed Rasool) Leave refused.
PLJ 2006 SC 1130 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Rana Bhagwandas, Javed Iqbal, Abdul Hameed Dogar, Muhammad Nawaz Abbasi, Tassaduq Hussain Jillani, Saiyed Saeed Ashhad, Hamid Ali Mirza and Karamat Nazir Bhandari, JJ.
WATTAN PARTY through its PRESIDENT--Petitioner
versus
FEDERATION OF PAKISTAN and others--Respondents
Constitution Petition No. 9 of 2006 & C.P. Nos. 345 & 394 of 2006, decided on 23.6.2006.
(One appeal from the judgment/order of High Court of Sindh at Karachi dated 30.3.2006 passed in Constitution Petition No. D-240 of 2006)
Acquisition of Equity Stake--
----Privatization Commission--Potential bidder would be disqualified--Purpose of--Thus, his involvement in the litigation as well as the corporate behaviour as is evident from the Task Force Report could have disqualified him--Apparently this aspect seems to have been ignored by the Privatization Commission--Supreme Court are conscious of the fact observations being made herein are not conclusive and can only be used for the purposes of the present litigation in view of the principle laid down by Supreme Court in the case of Mohtarma Benazir Bhutto ibid (PLD 2000 SC 77)--A potential bidder would be disqualified to participate in the bidding process if, "he is involved in litigation, arbitration or any other dispute or event which may have material adverse effect on its ability to acquire the Equity Stake or to manage PSMC after completion of the acquisition of the Equity Stake"--Although allegations are a matter of record and have not been controverted either by respondent or by the Privatization Commission yet he was cleared of the qualification process and was allowed to participate. [Pp. 1201 & 1202] PP & QQ
Administrative of Law--
----Court while exercising power of judicial review may not express opinions on polycentric issues requiring technical expertise and specialized knowledge--In present case, however, Supreme Court seized not with a polycentric issue as such but with the legality, reasonableness and transparency of the process of privatization of the project under consideration i.e. PSMC--Held: In exercise of the power of judicial review, the courts normally will not interfere in pure policy matters (unless the policy itself is shown to be against Constitution and the law) nor impose its own opinion in the matter--However, action taken can always be examined on the well established principles of judicial review. [Pp. 1176 & 1177] W
Administrative of Law--
----Question of--Supreme Court have considered Attorney General's contention and have gone through the precedent case law--The case law would have been relevant if the public functionaries had not committed violation of the rules, noted above--Question of reasonableness would be relevant if the transaction/action was otherwise in accordance with law/rules. [P. 1196] KK
Constitution of Pakistan, 1973--
----Art. 154(3)--Purpose of functioning of Council of Common Interest--Council has framed its rules which have inter alia provided a procedure for implementing the decisions--Rule 4 of the Procedure stipulates the kind of cases which are to be submitted to the Council for formulation and regulation of the policies on which the CCI has jurisdiction of supervision and control--Projects and schemes of such institutions, establishments, bodies and corporations; industries, projects and undertaking owned wholly or partially by the Federal Government or by a Corporation set up by the Federation--Essentially it also includes the supervision and control over PSMC--Chairman from time to time has been authorized to summon a meeting of the Council to meet at such time and place as he thinks fit--According to this rule there shall be at least one meeting of the Council in a year. [P. 1173] O
Constitution of Pakistan, 1973--
----Art. 154(4)--Elaborate role of executive for implementation--Perusal--Constitution makers have even not allowed the Parliament to speak to the CCI directly but for communication of its directions it has also taken the help of the Federal Government--Since both the institutions are Constitutional bodies there was no impediment for the Parliament even to address directly to the CCI in respect of the resolution passed by it--Making available the agency of the Federal Government clearly goes to show that it is just within the scheme of the Constitution because such decisions/resolutions even if passed by the Parliament have to be carried out or implemented through the Federal Government in terms of Art. 97 of the Constitution which is repository of the Federal executive powers--Object was nothing but to implement the decision of the CCI through a Privatization Commission which has been constituted under a statutory provision and the functions etc of the Privatization Commission clearly demonstrate that it was just for the purpose of providing a vehicle to the CCI for the implementation of its programme on the same analogy as the Majlis-e-Shoora (Parliament) takes the assistance of the Federal Government for purpose of getting implemented its resolution in terms of Art. 154 (4) of the Constitution. [P. 1174] Q
Constitution of Pakistan, 1973--
----Art. 154(5)--Privatization of Pakistan Steel Mill--Technical support to increase its capacity--Purpose of--Validity--No further discussion was called for except to consider the effect of the stand which had been taken in the written statement by the counsel of PSMC namely that the decision was dropped and its restructuring was planned by the then Chief Executive--Once the approval had been obtained from the CCI, the same decision could be set aside except in accord with the procedure laid down in Art. 154(5)--On having gone through the relevant Constitutional provision Supreme Court agree with his contention but at the same time Supreme Court are mindful of the fact that in the process of restructuring which started after about 3 years of the decision of CCI, the project was restructured by investing huge money--MoUs were also signed with the governments of China and Russia for the purpose of providing technical support to increase its capacity up to 1.5 metric tons per year and thereafter the Mill had started making profit as is evident from the Statements of Accounts/balance sheets pertaining to specified years--During these years the project made remarkable profits and according to the stand taken on behalf of PSMC it wiped off all its losses and carried forward accumulated specified profit therefore, Supreme Court observed that in view of these healthy developments having taken place during the intervening period and the divergent stand taken by the counsel for Federal Government to effect that order dated 29th May 1997 was never recalled and the stand taken for the PSMC that the matter of its privatization was dropped subsequently, by way of propriety if not as a matter of legal obligation, it would be in order if the matter is referred to the Council of Common Interests (C.C.I) for fresh consideration. [Pp. 1162 & 1163] H & I
Constitution of Pakistan, 1973--
----Art. 184(3)--Privatization of Pakistan Steel Mill--Question of public importance--Violation of--Attorney General conceded that present case involves questions of public importance, therefore cannot be thrown away summarily--Supreme Court were conscious of the fact that it was not only the petition under Art. 184 (3) of the Constitution which was pending consideration before Supreme Court but at the same time there were two other petitions which had been filed under Art. 185(3) of the Constitution (one by the Workers Union and second by the Federation of Pakistan), involving similar questions therefore, keeping in view the importance of the case and the alleged violation of Arts. 4 & 9 of the Constitution--Held: Petition under Art. 184(3) of the Constitution filed by the Wattan Party was maintainable. [P. 1157] A
Constitution of Pakistan, 1973--
----Arts. 153 & 154--Privatization Commission Ordinance, 2000, S. 28--Privatization of Pakistan Steel Mills--Vires of Law--Challenged to--It would not be fair to compel the petitioner to avail the remedy under the same law--High Court within its limited jurisdiction u/S. 28 can not strike down any of the provisions of the Ordinance--Furthermore, petitioner's counsel had raised issues of great public importance falling within the Constitutional domain of Supreme Court which could not have been adequately addressed to by the Court in terms of S. 28 of the Ordinance. [P. 1159] F
Constitution of Pakistan, 1973--
----Arts. 153 & 154--Privatization of Pakistan Steel Mill--Importance of Council of Common Interest--After perusal of judgment in Muhammad Nawaz Sharif's case as well as an earlier judgment reported in Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan (PLD 1992 SC 646), one can well conceive the importance of CCI and by making it functional the Federal Government can resolve number of issues/differences including the process of privatization of industries owned by the Federal Government as per mandate of the Constitution and procedure laid down therein--In present case, decision/approval was taken to privatize good number of industries--Held: Supreme Court in the case of Messrs Gadoon ibid is respectfully approved with reference to functioning of C.C.I. under Arts. 153 & 154 of the Constitution--As a consequence whereof the view taken by the Sindh High Court in the impugned judgment is upheld. [P. 1162] G
Constitution of Pakistan, 1973--
----Arts. 184(3) & 199--Supreme Court had no reason to disagree with the above proposition of the law--However, in the present case controversy is not only to be settled on the basis of the press clippings which were filed for the first time when the petition was submitted by the petitioner under Art. 184(3)--The petition filed by Mr. Abdul Mujeeb Pirzada also has no documents to decide the factual controversy perhaps for the reason that when originally petitioner invoked the jurisdiction of the High Court under Art. 199 of the Constitution the petition was dismissed in limine and against the short order--At the same time the Federation of Pakistan has also filed petition for leave to appeal (No. 394 of 2006) against the same judgment of the Sindh High Court--Thus, Supreme Court will be evaluating the documents which have been placed on record by the respondents themselves--Amongst those, the important documents which were filed on behalf of the PSMC in pursuance of order dated 18th May 2006 passed by Supreme Court--Some other documents including Memorandum and Art. of Association of PSMC were also placed on record--Similarly on behalf of the Privatization Commission all the necessary documents were filed including a secret report of CCI approving the privatization of the PSMC along with other projects--It is important to note that this document otherwise was not part of the pleadings but was placed on record during the course of hearing. [Pp. 1179 & 1180] Y
Constitution of Pakistan, 1973--
----Arts. 8 & 143--Provision of--Power of judicial review--Art. 8 of the Constitution grants the power of judicial review of legislation according to which Supreme Court is empowered to declare a law void if it is inconsistent with or in derogation to the fundamental rights--However, Supreme Court is empowered to declare any legislation contrary to the provisions of Constitution under some of the identical provisions of the Constitution as under Art. 143 of the Constitution on having noticed inconsistencies between the Federal and Provincial laws the Court is empowered to declare that which out of the two laws is in accordance with the Constitution--Besides it is an accepted principle of the Constitutional jurisprudence that Constitution being a basic document is always treated to be higher than other statutes and whenever a document in the shape of law given by the Parliament or other competent authority is in conflict with the Constitution or is inconsistent then to that extent the same is liable to be declared un-Constitutional. [P. 1169] L
Constitution of Pakistan, 1973--
----Arts. 8 & 270-AA--Mala fides and lack of jurisdiction--Supreme Court failed to find any provision in the Ordinance 2000 to be contrary to any of the fundamental rights--Besides it has got constitutional protection under Art. 270-AA and adhering to the principles laid down in Mehmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426). [P. 1175] S
Council of Common Interests--
----Preamble--Object and Purpose of--Concept of Council of Common Interests/Inter Provincial Council was conceived during the making of 1973 Constitution in pursuance of an Accord between the Parliamentarians--Council of Common Interests was to be constituted with following objects and purposes:
"24. COUNCIL OF COMMON INTERESTS/INTER PROVINCIAL COUNCIL.
There shall be a Council of Common Interests under the Constitution which shall consist of four provincial Chief Ministers and four members of the Federal Cabinet to be nominated by the Prime Minister.
In respect of the items No.17 , 27 and 29 of the Federal List above and item of electricity on the Concurrent List in so far as it relates to the Federation, the Council shall exercise supervision and control on policy--The institutions relating to these items shall function under the control and supervision of this Council.
The decisions of the Council shall be implemented by the concerned Ministries of the Federal Government. 27. The Council shall, through the Prime Minister, be responsible to the Parliament."
Constitution makers transformed the provisions in Art. 153 and 154 of the Constitution--Art. 153 provides for the composition of the Council of Common Interests whereas Art. 154 deals in respect of the functions and rules of procedure. [Pp. 1165, 1166 & 1167] K
Duty of Court--
----Principle of law--Jurisdiction of High Court--There is no cavil with the same and Supreme Court with utmost respect approve the same--But at the same time, Supreme Court have also to keep in mind important principle of law enunciated by Supreme Court in the case of Syed Ali Abbas v. Vishan Singh (PLD 1967 SC 294) i.e. petitioner cannot be refused relief and penalized for not throwing himself again (by way of revision or review) on mercy of authorities who are responsible for such excesses--If an adequate remedy provided by law is less convenient, beneficial and effective in case of a legal right to performance of a legal duty, the jurisdiction of the High Court can be invoked. [P. 1158] C
Ex-Post Facto--
----Proviso--Sale proceeds can be used by the Federal Government for the purpose other than that which has been approved by the CCI--Federal Government has to examine its implication and to ensure that it takes ex post facto approval from the CCI. [Pp. 1171 & 1172] M
Highest Bidder--
----Requirements--Rule has a wisdom behind it when it says that the CCOP will approve the name of the highest ranked bidder and not the highest bid--To Supreme Court the wisdom in requiring approval of the highest bidder rather than the highest bid is that the Cabinet/CCOP will also have to keep in view the considerations not purely economic in approving or not approving the names of the highest bidder--As mandatory and absolute requirement of Rule 4 has not been met--Held: Alone is sufficient to invalidate the Letter of Acceptance and the Share Purchase Agreement based on it. [P. 1196] JJ
Interpretation of Rules--
----Procedural rules are not ordinary rules framed under an Act of Parliament but are the rules which have been framed under the Constitutional provision, therefore, their status would not be less than that of an Act of the Parliament in any manner and so long Majlis-e-Shoora has not made the rules they shall hold the field--There is identical rule making provision in the Constitution i.e. Art. 191 which confers power upon the Supreme Court and Art. 202 which confers power upon the High Courts to frame their rules--Similarly Arts. 90 and 99 confer powers upon the Federal Government to frame their Rules of Business--Held: Procedural rules framed by the CCI are required to be adhered to strictly for the purpose of implementation/carrying out its policies. [P. 1174] R
Judicial Review--
----Normally in exercise of the powers of judicial review Supreme Court will not scrutinize the policy decisions or to substitute its own opinion in such matters as held in Messrs Elahi Cotton Mills ibid--Likewise in the case of Balco Employees--Supreme Court's view as given in Elahi Cotton ibid--Similar view was taken by the Indian Supreme Court in Delhi Science Forum v. Union of India (AIR 1996 SC 1356)--Parameters of judicial review were graphically commented upon in Associated Provincial Picture Houses Ltd. Ibid. [Pp. 1175 & 1176] U & V
Jurisdiction--
----Judicial review to examine--Court's powers were restored for judicial review to examine the legislation at the touchstone of the Constitution nothing has been identified or pointed out lacking or against the mandate of the Constitution--Held: Privatization Commission Ordinance, (LII) of 2000 is not ultra vires of the Constitution. [P. 1175] T
Method of Valuation--
----Purpose of assertaining correct value--Crux whereof is that in the fiscal year 2004-2005, PSMC had recorded annual sales of over Rs.30.00 billion and net profit of Rs.6.00 billion--After restructuring, the liquidity of the Corporation improved and it paid off principal amount of debt--Therefore under these circumstances it was incumbent upon the Privatization Commission to have taken care about these facts and these must have been mentioned categorically in the terms of reference framed for the Financial Advisor that the Mill is ongoing profitable concern and it has marketable assets and the liabilities are much less than the assets, therefore, keeping in view these facts any internationally acceptable methodology for calculating its shares may be adopted--According to the report of PSMC 10% equity offer will be made to the private sector meaning thereby enlisting its shares on the Stock Exchange for the purpose of ascertaining correct value in order to achieve the object for which in terms of the Ordinance the privatization was to take place. [P. 1186] CC
Potential Bidder--
----Basis of disqualification--Provision--Consortium had not applied within due date and their qualification as Consortium had not undergone the test of scrutiny--Such aspect had assumed importance for two reasons: firstly because during the course of hearing of C.M.A. No. 1190 of 2006 levelling serious allegations which remained uncontroverted and such factual position has also been admitted during the hearing at the Bar, with regard to his qualification to participate in the bidding process falling within the mischief of Condition (i) and (ii) of the Basis of Disqualification (reproduced ibid)--Conditions for qualification required that change can be brought about in the consortium "not later than 30 days" prior to the proposed date of bidding--If there was a valid sanction order for the creation of the Consortium that change in the composition of the bidding party was hit by condition--A comment on the corporate credentials of a member of the consortium would be pertinent in view of the mandatory requirements of the "Request for Statement of Qualification" (RSOQ). [Pp. 1199 & 1200] OO
Privatization Commission (Modes & Procedure) Rules, 2001--
----R. 4(2)--Privatization of Pakistan Steel Mill--Violation of law and irregularity--This transaction is outcome of a process reflecting serious violation of law and gross irregularities with regard to sale of the first and the biggest steel mill of Pakistan--From the facts admitted before Supreme Court even the procedural irregularities are not disputed. [P. 1195] II
Privatization Commission (Modes & Procedure) Rules, 2001--
----R. 4--Purpose of legislation--Determiantion of--No consequences of non-compliance of Rule 4 have been provided in the Rules, the same be held as directory and not mandatory--Non provision of consequence is one of the tests to determine the "directory" or "mandatory" nature of a statutory provision--Whole purpose of legislation is also to be kept in view to determine whether the duty cast is of absolute nature or of directory nature--Supreme Court have already explained that the rule creates a distinction between the bid and the bidder and obliges the CCOP to approve the highest ranked bidder and not the bid--Language employed is mandatory in nature--Therefore, Supreme Court repel the argument that the rule is "directory" in nature and having been substantially complied with the Court should condone the twisted or as he put it "convoluted" procedure--Reference made by him on Messrs Nishtar Mills Limited v. Superintendent of Central Excise Circle II (PLD 1989 SC 222) is not apt under the circumstances--As far as the argument of the learned Attorney General that as making fresh reference to the CCOP for reconsideration may result in reiteration of the earlier decision, therefore, the Court should not strike down the decision on this ground is concerned, Supreme Court are not striking down the action on this ground alone as the contents of such judgment reveal--In any case Reaffirmation of the decision after compliance with law, would demonstrate the supremacy of law. [Pp. 1196 & 1197] MM & NN
PLJ 2001 SC 380 rel.
Privatization Commission (Modes and Procedure) Rules, 2001--
----R. 4(2)--Contract Act (IX of 1872), S. 10--Successful bidder--It is clear that bidders are different than the purchasers--Names of the purchasers shown in the Agreement dated 24.04.2006 have not been approved by the C.C.O.P--When asked to explain the anomaly, counsel for successful bidder explained that the arrangement was devised with a view to provide a corporate vehicle through which the successful bidder could exercise corporate control on P.S.M.C.--Such devise was adopted to save the double taxation--Supreme Court failed to understand that the Privatization Commission readily accepted the arrangement which was to the benefit of the bidders for the purpose of entering into the Sale Purchase Agreement knowing well that under the law of our country no such permission can be granted because the contract is to be entered between the seller and the purchaser as approved by the Privatization Commission Board and the CCOP in terms of Rule 4(2) of the Privatization Commission (Modes and Procedure) Rules, 2001--Further u/S. 10 of the Contract Act the parties have to make contract for a lawful consideration and with a lawful object which are not thereby expressly declared to be void--Expediencies of the bidder with regard to save their skin from double taxation could not form a valid basis for the Privatization Commission to accept such a plea for the purpose of allowing them to enter into contract through an offshore company which has been incorporated out of the country--Supreme Court cannot encourage such practice because if at all the bidders wanted to have any benefit of taxation they should have resorted to the municipal law of Pakistan and in that behalf if at all there was necessity they could have obtained incorporation of any other company within the territory of Pakistan having its own permanent office or business--Now turning towards the contents of the contract it may be noted that the same has been signed after vetting but there is not a single clause incorporated therein to the effect as to whether the bidders had furnished any guarantee for the purpose of making investment in the PSMC with a view to raise its production capacity--Supreme Court enquired from the Attorney General as well as counsel appearing for the bidders. [Pp. 1203 & 1204] RR, SS & TT
Privatization Commission (Valuation of Property) Rules, 2001--
----R. 6--Privatization (Modes & Procedure) Rules, 2001, R. 4(2)--Decision of the CCOP not only reflects disregard of the mandatory rules but also all material which was essential for arriving at a fair reference price--Because firstly determining the reference price for approval of the CCOP is a separate exercise to be carried out in terms of Rule 6 of the Privatization Commission (Valuation of Property) Rules 2001 whereas the approval of the highest bidder is a separate exercise undertaken under the Privatization (Modes & Procedure) Rules, 2001--Rule 4(2) of these rules mandates that, "Upon selection of a highest ranked bidder as specified in sub-rule (1) the Board shall refer the matter for approval, or rejection of such highest ranked bidder with full justification, to the Cabinet"--While approving the summary the Cabinet Committee totally ignored Rule 4 of the Privatization (Modes & Procedure) Rules, 2001, and instead abdicated its authority to the Privatization Commission to issue Letter of Acceptance to whoever is the highest bidder--Secondly the Cabinet Committee totally ignored the proposal of the Board of Privatization Commission that the net assets should also be included while valuing the project--Thirdly the decision that the Government of Pakistan shall bear the liability of the entire VSS of the employees of the PSMC was neither part of the summary submitted by the Privatization Commission nor was it included in the initial public offering given to the bidders through advertisement--Fourthly notwithstanding the proposal of the Board of Privatization Commission to value the share of PSMC at specified rate it reduced it to without assigning any good reason whatsoever. [P. 1192] GG
Privatization Commission Ordinance, 2000--
----Preamble--Determination of validity transparency--To determine validity/transparency or otherwise following questions are to be addressed:-
(i) Whether the terms of reference framed for the valuer were in accord with the Privatization Commission Valuation Rules, 2001?
(ii) Whether the method adopted in valuing the property satisfied the mandate of law contained in Privatization Ordinance 2000 and the rules framed thereunder and whether it is in accord with the internationally recognized principles in this regard?
(iii) Whether the process of pre-qualification of potential bidders satisfied the requirement of Privatization Commission Regulations?
(iv) Whether the decision dated 31.03.2006 taken by the Cabinet Committee (CCOP) to sell the Mill if the bid was above Rs.16.18 per share satisfied the requirements of law?
(v) Whether the final terms/concession offered to the highest bidder/consortium on 31.03.2006 were in accord with the terms and conditions of initial public offering given to the potential bidders through advertisement dated 19.10.2005 and if not whether these can be justified on the touchstone of law and "reasonableness"?
Council of Common Interest had given the approval for the privatization of the Federal Government owned projects or entities for the purpose of retiring the debts and such object had been duly transformed in the Preamble of the Ordinance 2000, therefore, the object for privatization it should have been the endeavour on the part of the Privatization Commission to adopt such ways and means which might fetch highest price of its assets--Admittedly, in this context the report of the statement of affairs submitted on behalf of the Chairman of PSMC becomes more relevant coupled with the Statements of Accounts--The owners generally make their efforts to show less book value of the assets for purpose of lessening the tax burden on the concern--Statements of accounts were never prepared for the purposes of disposing of the assets, shares in the market--Valuation of property is to be done in the prescribed manner i.e. the Privatization Commission (Valuation of Property) Rules, 2001 by independent valuers who are to be hired in accordance with Privatization Commission (Hiring of Valuers) Regulations, 2001--As per Section 2 (l) of the Ordinance, property "includes any right, title or interest in property, moveable or immovable in whole or in part or any means and instruments of production owned or controlled directly or indirectly by the Federal Government or any enterprise owned or controlled by the Federal Government whether in or outside Pakistan"--Cumulative effect of the relevant law/rules/regulations is that the valuation of the property is part of the process of privatization of an ongoing concern--Held: Privatization Commission (Hiring of Valuers) Regulation 2001--Regulation 3 of which provides that for a fair and independent valuation of the property the Privatization Commission shall frame terms of reference for the valuer which shall, "include inter alia, a brief history of the entity, the financial position, a description of the produce line/service of the entity if any, a description of land, building, plant and machinery, the current assets and liabilities and the current state of industry. [Pp. 1180, 1181 & 1182] Z
Privatization Commission Ordinance, 2000--
----S. 27--Importance of the document--Supreme Court consider it appropriate at that stage to first of all ascertain the status of the material which was available on record in order to decide as to whether the Court has to confine to the material which had been placed on record only by the petitioners or in view of the importance of the case the documents which are not disputed between the parties can be taken into consideration--Counsel for the Privatization Commission stated that as far as the newspaper clippings are concerned those cannot be considered valid piece of evidence for judicial review--Reference in this behalf has been placed by him on the case of Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others (1986 SCMR 1736). [P. 1177] X
Privatization Commission Ordinance, 2000--
----S. 27--Interest of justice--It would not be in the interest of justice to push the petitioners back to the authority who had already exercised the jurisdiction and is insisting that the action so taken by it is not only in accordance with law as it suffers from no legal discrepancy or infirmity but is also transparent--Supreme Court directing investigation u/S. 27 of the Ordinance would be inappropriate and an exercise in futility and it would also not serve the interests of justice. [P. 1159] D
Privatization Commission Ordinance, 2000--
----S. 28--No remedy for redressal of grievance--Jurisdiction--Matters related, arising from or under or in connection with the Ordinance as also all matters transferred pursuant to section 31 and to try offences punishable under the Ordinance--Held: Matters shall be arising in respect of the rights and obligations of the parties who are the subject of the Ordinance--As far as pro bono publico cases are concerned, those shall not be covered under this provision of law because in such cases Court has been called upon to exercise Constitutional jurisdiction on the basis of the information laid before it that the matter involves question of public importance relating to their fundamental rights individually or collectively. [P. 1159] E
Privatization Commission Ordinance, 2000--
----Ss. 27 & 28--Alternate remedy--Supreme Court turned to the question relating to availability of alternate remedy to petitioner in terms of Ss. 27 and 28 of the Privatization Commission Ordinance. [P. 1157] B
Privatization Commission Ordinance, 2000--
----Ss. 5 & 22--Constitution of Pakistan, 1973, Art. 97--Purpose of--Validity--Powers of the C.C.I. have been transferred/delegated to the Commission for the purpose of making its policies independent of C.C.I. while discharging the functions in terms of Ss. 5 & 22 of the Ordinance 2000--It would not be out of place to mention that as far as the procedural rules are concerned they have got Constitutional support/backing, therefore, whatever decision will be pronounced by the CCI the Executive Government in discharge of its functions in terms of Art. 97 of the Constitution is bound to implement the same unless it is varied by the Parliament--It may be recorded that validity of such Rules had not been challenged before Supreme Court. [Pp. 1173 & 1174] P
Privatization--
----Object of--Object of privatization would be to retire the debts and such policy has been incorporated in the Privatization Commission Ordinance 2000, as well--Therefore, if the P.C. wanted to sell the shares of PSMC for any other purpose i.e. to build its capacity for the purpose of catering the requirements of steel in the country then in that case they should have again approached the CCI for the purpose of modification of its policy--Only object should be the debt retirement and for this purpose the government might apply any such formula internationally recognized which may ensure to bring more money in the country--In the above context the next important question is with regard to the period of holding--Admittedly, in the agreement the holding period has been fixed only three years meaning thereby that after three years there is no guarantee whether the actual purchaser would not sell the shares of this on-going concern which is an industry of a very important nature known as mother industry--But no guarantee in this behalf has been obtained--Learned counsel appearing for the PC stated that there is a clause that the shares shall not be transferred against the security of Pakistan--Supreme Court quite agree with him but at the same time it has not been defined anywhere that for the purpose of ensuring the security of Pakistan what measures shall be followed if the purchaser ultimately decides to dispose of/sell the shares against the interests of Pakistan--Therefore, in this behalf a clause should have been incorporated into the agreement--Supreme Court have observed hereinabove that even the agreement dated 24th of April 2006 has not been conditionalized to safeguard the interest and it seems that it is an ordinary standard type of agreement which has been signed without looking into the pros and the cons. [Pp. 1206 & 1207] WW & XX
Privatization--
----Pakistan Steel Mill--Cabinet Committee on Privatization (CCOP) considered the summary submitted by the Privatization & Investment Division on "Privatization of Pakistan Steel Mills Corporation" and approved the valuation of US$ 464 million based on DCF valuation for privatization of the Pakistan Steel Mills Corporation Limited (PSMC) for its 100% equity stake--On the basis of above, 75% equity stake (specified shares) works out to US$ 348 million i.e. Rs. 16.18 per share. [P. 1191] FF
Process of Privatization Pakistan Steel Mill--
----Whole exercise reflected indecent haste by P.C. as well as C.C.O.P. in that on 30th of March 2006 the final report of the F.A is received, the officials of the PC process the same on the same day, the meeting of the Board of Privatization Commission also takes place the same day and the summary was prepared the same day--The very next day i.e. 31st of March 2006, the CCOP meets, considers the summary, fixes a reference price and authorizes the P.C. to approve the highest bid--Even the Managing Director of the FA had already flown a day earlier to make presentation--During lengthy hearing spread over almost three weeks, no counsel much less Mr. Abdul Hafeez Pirzada learned Sr. ASC for Federation could offer any explanation for the haste in finalizing the process of the privatization--Apart from the illegality noted above viz complete violation of Rule 4, this unexplained haste casts reasonable doubt on the transparency of the whole exercise. [P. 1196] LL
Reference Price--
----Question as to whether decision taken by the Cabinet Committee (CCOP) on specific date for sale in favour of anybody offering more than the reference price of specific is valid. [P. 1188] EE
Successful Bidder--
----Public Offering--Question of divergence in the initial public offering to the successful bidders and the final terms/conditions offered to the highest bidder and whether these were in accord with the terms and conditions of public offering given through advertisement. [P. 1192] HH
Ultra Vires--
----Vires of Privatization Commission Ordinance, 2000--Purpose of Privatization--Important question raised before Supreme Court was with regard to the vires of the Privatization Commission Ordinance--Ordinance 2000 is ultra vires of the Constitution--It was promulgated during the period when the Constitution was in abeyance therefore the requirements of Art. 154 of the Constitution were not fulfilled. [P. 1163] J
Valuation of Project--
----Requirements--Requirement of six weeks was mandatory as after submission of the valuation report the P.C. is required to examine it at its own level so as to fix a fair reference price for approval by the C.C.O.P. [P. 1188] DD
Valuation of Share--
----Enhancement of production capacity--Amount shall be invested because the language employed therein indicates that in the revamping of the existing facilities of PSMC in an effort to ensure sustained utilization of its design production capacity of 1.1MTA and thereafter shall seek enhancement of its production capacity to 1.5 MTA it is estimated that immediately an investment of U.S. $ 250 mm will be required for PSMC to become economically viable--Thereafter further investment will be made to raise the capacity to 3.0 MTA--Counsel for the bidder stated that such letter might be read as one of the conditions of the warranty of the agreement and might be read and treated as part of the agreement--Submission made on their behalf was not acceptable for a number of reasons: firstly the document was not the part of the original transaction; secondly during the Court proceedings such documents could not be read as part of the agreement unless it is agreed to by the PC and when essentially this document does not bear the signatures on behalf of the PC; thirdly it was not signed by the parties who were signatories to the Share Purchase Agreement--Fourthly, it has been issued and placed on record not as a reflection of genuine transaction between the contracting parties but to allay the concerns of the Court reflected in observations made during hearing--There was no necessity to privatize the PSMC at a lesser price instead of selling it at a fair market price for achieving the objects set out for privatization. [Pp. 1205 & 1206] UU & VV
Value of Assets--
----Supreme Court can look into the models of valuation internationally recognized to ascertain as to which out of them suits the seller and buyer respectively. [P. 1185] BB
Value of Shares--
----Determining--Value of share--Supreme Court are conscious of the fact that the courts are not supposed to settle the controversy as to which method should have been followed by the valuer for the purpose of determining the value of shares. [P. 1185] AA
Words and Phrases--
----Framing the policy and issuing the programme for the purpose of carrying out privatization are distinct and different from each other--The word "Policy" has been defined in Black's Law Dictionary 7th Edition Page 1178 as follows:
"the general policies by which a Government is guided in its management of public affairs."
Whereas the word "Programme" has been defined in 20th Century Dictionary Page 1107:
"the schedule of proceedings for and list of participants in a theatre performance, entertainment, ceremony, etc; an agenda, plan or schedule, a series of the planned projects to be undertaken".
On having seen the meanings of both the expressions one can conveniently conclude that the programme which is to be provided by the Commission is merely a schedule for the purpose of the privatization in a manner prescribed in law. [Pp. 1172 & 1173] N
Barrister Zafarullah Khan, Sr. ASC Raja Muhammad Akram, Sr. ASC Assisted by Ms. Sadia Abbasi, Advocate Muhammad Habib-ur-Rehman, Advocate for Petitioner (in Const. P. 9/2006).
Mr. Abdul Mujeeb Pirzada, ASC, Mr. M.S. Khattak, AOR for Petitioner (in C.P. 345/2006 and for Respondent No. 1 in C.P. No. 394/2006).
Syed Zafar Abbas Naqvi, AOR for Petitioner (in C.P. No. 394/2006).
Mr. Makhdoom Ali Khan, Attorney General for Pakistan, Assisted by Mr. Khuram M. Hashmi, Advocate on Court Notice (in Const. P. 9/2006 & for Petitioner in C.P. No. 394/2006).
Mr. Abdul Hafeez Pirzada, Sr. ASC Raja Abdul Ghafoor, AOR Mr. Mehr Khan Malik, AOR Assisted by Mr. Hamid Ahmed, Adv. Mr. Sikandar Bashir Mohmand, Advocate for Respondent No. 1 (in Cosnt. P. No. 9/06 & for Respondent No. 2 in C.P. No. 345/2006).
Syed Sharifuddin Pirzada, Sr. ASC Mr. Sulman Aslam Butt, ASC Mr. Mehr Khan Malik, AOR Assisted by Ms. Danish Zubari, Advocate Mr. Waqar Rana, Advocate for Respondents Nos. 2 & 4 (in Cosnt. P. 9/2006).
Mr. Wasim Sajjad, Sr. ASC Mr. Arshad Ali Ch., AOR Assisted by Mr. Idrees Ashraf, Advocate Mr. Ali Hassan Sajjad, Advocate for Respondent No. 3 (in Const. 9/2006 & for Respondent No. 5 (in C.P. 345/2006).
Mr. Khalid Anwar, Sr. ASC Mr. Kazim Hassan, ASC Mr. M.A. Zaidi, AOR Assisted by Mr. Raashid Anwar, Advocate for Respondent No. 7 (in Const. P. 9/2006).
Mr. Anwar Mansoor Khan, AG (Sindh) Dr. Qazi Khalid Ali, Addl. AG (Sindh) Raja Abdul Ghafoor, AOR for Respondent No. 4 (in C.P. 345/2006).
Mr. Ahmer Bilal Sufi, ASC Mr. G.N. Gohar, AOR for Applicant (in CMA 1190/2006).
Nemo for Respondents Nos. 5 & 6 (in Const. P. 9/2006).
Nemo for Respondents Nos. 2-3 & 5 (in C.P. 345/2006).
Nemo for Respondents Nos. 2-5 (in Const. P. 394/2006).
Dates of hearing: 30 & 31.5, 1, 5 to 8, 12 to 15, 19 to 23.6.2006.
Judgment
Iftikhar Muhammad Chaudhry, C.J.--These petitions were disposed of vide short order dated 23rd June, 2006, concluding para therefrom is reproduced hereinbelow:-
"we have heard learned counsel for the parties at great length, in view of the importance of the matter. After due deliberations and taking into consideration the issues involved therein in depth, by means of instant short order, which will be followed by detailed reasons later, it is held and directed as follows:--
Conscious of the mandate of Article 153 and 154 of the Constitution, we hold that the establishment and working of the Council of Common Interests (CCI) is a cornerstone of the Federal structure providing for protection of the rights of the Federating units. Mindful that this important institution is not functioning presently and taking note of the statement made by the counsel for the Federal Government Mr. Abdul Hafeez Pirzada that the process for making it functional is underway, we direct the Federal Government to do the needful expeditiously as far as possible but not later than six weeks.
The approval for the privatization of Pakistan Steel Mills Corporation by the Council of Common Interests on 29th May 1997 continues to hold the field. But in view of the developments having taken place during the intervening period and the divergent stand taken by the counsel for the Federal Government to the effect that the afore-referred order was never recalled and the stand taken by the counsel for the P.S.M.C. that the matter of its privatization was dropped subsequently, by way of propriety, it would be in order if the matter is referred to the Council of Common Interests (C.C.I.) for consideration.
The Privatization Commission Ordinance No. LII of 2000 is not ultra vires of the Constitution.
While exercising the power of judicial review, it is not the function of this Court, ordinarily, to interfere in the policy making domain of the Executive which in the instant case is relatable to the privatization of State owned projects as it has its own merits reflected in the economic indicators. However, the process of privatization of Pakistan Steel Mills Corporation stands vitiated by acts of omission and commission on the part of certain State functionaries reflecting violation of mandatory provisions of law and the rules framed thereunder which adversely affected the decisions qua prequalification of a member of the successful consortium (Mr. Arif Habib), valuation of the project and the final terms offered to the successful consortium which were not in accord with the initial public offering given through advertisement.
For the foregoing reasons, the Letter of Acceptance (LoA) dated 31st March, 2006 and Share Purchase Agreement dated 24th April, 2006 are declared as void and of no legal effect."
Brief facts are that Pakistan Steel Mills Corporation (P.S.M.C.) is a private limited company and its 100% equity is owned by Government of Pakistan. It was incorporated in 1968 at a total cost of Rs. 24.7 billion. It commenced production in 1981 to 1984. The Mill is the biggest producer of steel in Pakistan and the only major manufacturer of flat and long bars and billet. It being situated near Port Qasim (Karachi) has got its jetty, water, natural gas and power. The plant was installed with the collaboration of Russian Government by the Ministry of Industries, Production and Special Initiatives. Mills net assets include land measuring about 19000 acres out of which the plant and the machinery is located on 4457 acres of land (core land) besides the land of downstream industrial estates.
The annual designed capacity of P.S.M.C. is 1.1 million tons. As explained in the written reply submitted by the management of the Mill, during initial years of its establishment, its profitability was not too remarkable on account of overstaffing, financial liabilities, poor work discipline, low capacity utilization, low sales, mismanagement and lack of a culture of accountability, etc. It was added that no appreciable investment was made in maintenance and mandatory repairs resulting in deterioration of machinery/equipment. However, in the year 1997, the Government of Pakistan (G.O.P.) decided to privatize it and got approval for the same from the Council of Common Interests (C.C.I.). But somehow process of privatization could not be completed and in the meanwhile on 20th May, 2000, its restructuring was approved by the Chief Executive of Pakistan. The process also included rightsizing of its manpower, repair and maintenance of plants, etc. It is the case of the Chairman P.S.M.C. that these measures were aimed at making P.S.M.C. a financially viable entity. To achieve the object following measures were adopted:-
(a) Financial Restructuring.
(b) Manpower Restructuring.
(c) Repair & Maintenance.
(d) Offer of Equity to Private Sector.
(e) No New Investment in Direct Expansion.
The idea of restructuring of the plant was conceived perhaps due to dropping the idea of privatization in 1998. The plan of restructuring so put forward proved successful as in the following years i.e. 2002-03, 2003-04, 2004-05, the audited accounts depicted its financial position as follows:-
Years Capacity Net Net Accumulated Duties End Earning Utilization Profit Profit Profit/ & Year Per (%) before after Loss taxes Liquidity share Tax tax paid (Rupees)
2002-03 92 1239 1024 (7648) 5505 412 0.60
2003-04 94 7094 4852 (2796) 5395 7751 2.82
2004-05 89 10191 6734 3938 8901 11096 3.91
TOTAL 18,524 12610 19,801 9280\
\as on 19.05.2006
"PSMC is the country's largest and only integrated steel manufacturing plant with an annual designed production capacity of 1.1 million tons. It was incorporated as a private limited company in 1968 and commenced full scale commercial operations in 1984. PSMC complex includes coke oven batteries, billet mill, hot and cold rolling mills, galvanizing unit and 165 MW of own power generation units, supported by various other ancillary units. It is located 30km south east of the coastal city of Karachi, in close proximity to Port Bin Qasim, with access to a dedicated jetty, which facilitates import of raw materials. PSMC manufactures a wide mix of products, which includes both flat and long products. PSMC effectively enjoys a captive domestic market due to the prevalent demand-supply imbalance in the country's steel industry, where demand has historically exceeded local supply. PSMC also strives to maintain high quality and environmental standards and in this regard has received ISO 9001, ISO 1400-1 and SA 8000 certifications, along with the Environmental Excellence Award 2005. As a result of sustained improvement in Pakistan's macroeconomic environment, the demand for steel in the country is expected to grow substantially. PSMC is uniquely positioned to take advantage of the expected demand growth as adequate infrastructure is already in place to cater to capacity expansion."
Before inviting E.O.I the Valuers were appointed to carry out a valuation. As per record, M/s City Group were appointed. The Group was assisted by Advisors namely M/s CORUS to provide technical "due diligence", including plant mechanical integrity assessment and technical inputs to the valuation model and environmental "due diligence" and M/s A.F. Ferguson & Co. (an affiliate firm of Price Waterhouse Coopers) for the purpose of Accounting, Tax, HR and IT "due diligence" along with M/s ORR, Dignam & Co. Advocates for legal "due diligence". It is relevant to point out that Financial Advisors/Valuers prepared the Valuation Report on the basis of the report submitted by A.F. Ferguson, CORUS and ORR, Dignam & Co. without undertaking independent exercise in respect of accounting, tax, etc and other aspects of the matter. A.F. Ferguson had also relied upon the Statement of Accounts furnished by P.S.M.C. In fact the Statement of Accounts and the balance sheet were copied in verbatim by the A.F. Ferguson. As far as these reports are concerned, admittedly, they are prepared on historical value of assets of a concern i.e. according to the book value which is always based on depreciated price of the unit.
The Financial Advisor completed exercise for preparation of Valuation Report on following guidelines provided by Privatization Commission (P.C.):---
"The objective is to apply various internationally accepted valuation techniques to obtain a valuation range for PSMC as a going concern. The valuation model will take into account the capital expenditure and earning projections, costs and other business considerations. The model will be used to undertake a sensitivity analysis in order to highlight the impact of changes in different variables, such as gross product margins, rate of custom duty on import of iron. A valuation based on comparative pricing analysis will also be prepared. Inputs of the valuation model and valuation methodology will be reviewed with the PSMC management."
(i) Aljomaih Holding Company (Saudi Arabia).
(ii) Al-Tuwairqi Group (Saudi Arabia) and Arif Habib Group (Pakistan).
(iii) Azovstal Steel/System Capital Management (Ukraine).
(iv) Government of Ras-Al-Khaimah (UAE).
(v) International Industries Ltd (Pakistan) and Industrial Union of Donbass (Ukraine).
(vi) Magnitogorsk Iron & Steel Works Open JSC (Russia).
(vii) Nishat Mills Ltd. and D.G. Khan Cement Co. Ltd (Pakistan).
(viii) Noor Financial Investment Co. (Kuwait).
(ix) Shanghai Baosteel Group Corporation (China).
It is stated that in the meanwhile on 28th October 2005, the Financial Advisor (F.A.) City Group submitted the interim report of Valuation of Shares followed by the final report on 30.03.2006.
(i) The stock in trade contained in the Unit worth about Rs. 10.00 billion.
(ii) The commitment of the Government of Pakistan to clear the loan liability of PSMC which was due for the year 2013 to 2019, amounting to about Rs.7.67 billion from the cash of Rs.8.559 billion lying with the Mills as per the Statement of Account.
(iii) Refund of Rs.1.00 billion paid in advance as tax to Government of Pakistan
(iv) Responsibility accepted by Government of Pakistan to satisfy the claim of the workers opting for Voluntary Separation Scheme (V.S.S.) up to Rs. 15.00 billion.
"The Board of Privatization Commission considered the valuation carried out by the FA as well as the replacement cost of plant and recommended total value of PSMC at US $ 500 Million. Based on this, the Reference price for 75% strategic stake would be US$ 375 Million i.e. Rs. 17.43 per share calculated at the rate of Rs.60 per US $ (total shares being divested are 1,290,487,275)."
The summary also indicates that the Privatization Commission Board (BOPC) having considered the valuation recommended by the Financial Advisor proposed that, " the current market value of total assets of P.S.M.C. may also be taken into account." The Board of Privatization Commission however while considering F.A. report as well as the replacement cost of the plant recommended that the total value of P.S.M.C. would be U.S. $ 500 Million and based on this the reference price for 75% strategic stake would come to US $ 375 million i.e. Rs. 17.43 per share calculated at the rate of Rs. 60 per U.S. $.
"The Cabinet Committee on Privatization (CCOP) considered the summary dated 30th March 2006, submitted by the Privatization & Investment Division on "Privatization of Pakistan Steel Mills Corporation" and approved the valuation of US$ 464 million based on DCF valuation for privatization of the Pakistan Steel Mills Corporation Limited (PSMC) for its 100% equity stake. On the basis of above, 75% equity stake (1,290,487,275 shares) works out to US$ 348 million i.e. Rs. 16.18 per share.
II. The CCOP also approved the proposal contained in Para 8 of the summary to issue Letter of Acceptance (LoA) to the Successful Bidder if their per share price is equal or higher than the Reference Price mentioned in sub para I above.
III. The CCOP directed the Privatization Division to follow the approved policy for Privatization, strictly in letter and spirit. Any deviation from the approved policy, if deemed necessary, should be brought up to the CCOP well in advance for consideration and approval of waiver, if any.
IV. The CCOP directed the Privatization Division to impress upon the potential buyer to make the entire payment of the transaction to the GoP within the period stipulated in the bid documents.
V. The CCOP directed the Privatization Division to invariably add their viewpoint(s) recommendations explicitly in their summaries, in future."
In view of the above decision of C.C.O.P. the consortium comprising M/s Arif Habib Group of Companies, M/s Al-Tuwairqi Group of Companies and M/s Magnitogorsk Iron and Steel Works, Russia was declared successful bidder at the rate of Rs.16.80 per share. Thereafter the matter was not again placed before the CCOP and the Letter of Acceptance (LoA) was issued on the same date.
In the meanwhile on 27th February, 2006, the ongoing process of privatization of P.S.M.C. was challenged by Pakistan Steel Mills Workers Union (CBA) and three others before the High Court of Sindh at Karachi in a Constitutional petition (bearing No. 240 of 2006) claiming therein the following reliefs:-
"(a) Direct the respondent No.1 to constitute Council of Common Interests (CCI) under Articles 153 and 154 of the Constitution.
(b) Declare that the provisions of Sections 3,5,6,7,9,14,16,22 of the Privatization Ordinance LII of 2000 are ultra vires of Articles 153 and 154 of the Constitution and therefore, void and of no legal effect.
(c) Declare that the process of Privatization is violative of Articles 2-A, 3, 4, 5, 9, 25, 38 of the Constitution.
(d) Declare that the process of Privatization adopted by respondents No.1 and 3 in respect of sale of shares and management control in the PSM is illegal, arbitrary, irrational and without any lawful authority.'
(e) Restrain the respondents No. 1 and 3 from carrying through with the Privatization of P.S.M. without the directions and supervision of CCI and the Province of Sindh.
(f) Direct the respondents to maintain status quo during the pendency of this petition.
(g) Any other relief (s) fit and necessary in the circumstances of this case may also be granted."
"For reasons to be recorded later, we are of the view that the provisions of Article 154 are mandatory and the functions of the Cabinet under the Privatization Ordinance 2000 ought to be performed by the Council of Common Interest. Nevertheless in view of the fact that the Provincial Government has consented to the privatization of the respondent No.5 and other facts and circumstances we are not persuaded to exercise discretionary jurisdiction under Article 199 for the purpose of issuing any directions in respect of respondent No.5. The petition stands disposed of."
Later on detailed reasons for the above order were issued on 31.05.2006.
Wattan Party through Barrister Zafarullah Khan filed a petition under Article 184 (3) of the Constitution of the Islamic Republic of Pakistan challenging the process of privatization and acceptance of bid of respondent No.7 before this Court. Aggrieved by the order/decision of High Court, C.P. No. 345 of 2006 was filed by the Workers Union C.B.A. and C.P. No. 394 of 2006 has been filed by the Federation of Pakistan against the same judgment.
It is to be observed that Federation of Pakistan and others challenged the judgment of the Sindh High Court at Karachi inter alia on the ground that Articles 153 and 154 of the Constitution of Islamic Republic of Pakistan are not attracted in the case of privatization of a company wholly owned by the Federal Government and further that in exercise of its Constitutional jurisdiction, the High Court can not decide academic question like vires of a statute when such decision was not warranted, upon the facts of the case. The learned Sindh High Court in the detailed reasons concluded that for privatization of the Federal Government owned industries approval of CCI is mandatory but relief was declined because the Chief Minister Sindh being one of the members of the C.C.I. had consented to the privatization of P.S.M.C. and in the facts and circumstances of the case, this consent of Chief Minister was sufficient to deny the petitioner, the discretionary relief under Article 199 of the Constitution.
Before dilating upon the merits of the case it is to be noted that both the learned counsel for Federation of Pakistan and Privatization Commission admitted that approval of CCI for privatization of Federal Government owned industrial units is necessary. Learned counsel for the Privatization Commission during his arguments placed on record a decision of CCI dated 29th May 1997 to substantiate that approval of CCI had already been obtained. Similarly learned counsel for the Government of Pakistan relied on the same decision and also brought on record complete summary placed before the CCI seeking approval for privatization of Federal Government owned industries including PSMC. He contended that the assertion (in Statement of Affairs filed by PSMC through its Chairman) that in 1998 the decision of privatization of PSMC was dropped is incorrect. He added that he has been instructed to make statement that the decision of C.C.I. dated 29th May 1997 still holds the field. On enquiry by the Court on the point as to whether C.C.I. has been appointed/activated so far or not, learned counsel after explaining the importance of C.C.I., answered that the process of making C.C.I. functional was "underway".
Learned counsel for the petitioner (C.P. No. 9 of 2006) Barrister Zafarullah contended that P.S.M.C. is the only huge integrated iron mill having finishing plants, blast furnaces, steel converters, Hot and Cold Roll Galvanizing Unit, grinding units, 65 mega watts power generation plant, 4 steel plants in Thatha, water supply plant, thermal power plant, 40 locomotives of 100 HP each, more than 100 railway wagons, 110 kilometers metalled road, 10 k.m. railway track, water treatment plant, jetties and 98 coke ovens, 80 brand new vehicles, cash in hand, etc. But the Privatization Commission had sold its 75% shares against Rs.16.80 per share which comes to U.S. $ 348 million i.e. Rs. 21.68 billion along with the land measuring 4457 acres which has been unbundled from total land of 19086 acres on which Gulshan-i-Hadeed Town, schools etc are located. He further stated that out of the downstream industrial estates located on P.S.M.C. 220 acres land has been allotted to M/s Al-Tuwairqi Group of Companies by the Government of Pakistan (GoP) for the purpose of establishing a steel mill. Earth breaking ceremony of the said mill was carried out on 30th March, 2006, therefore, according to him for the best reasons known to the Privatization Commission its shares were sold to the same group along with the consortium of M/s Arif Habib Group of Companies, M/s Al-Tuwairqi Group of Companies and M/s Magnitogorsk Iron and Steel Works, Russia. He added that the petitioner being a registered political party having direct interest in national assets including the Steel Mill has invoked the jurisdiction of this Court under Article 184 (3) of the Constitution in its own right. He contended that 'Access to Justice' is a fundamental right of everyone, therefore, petition is maintainable. Reliance in this behalf has been placed by him on S.P.Gupta v. M. Tarkunde and others (A.I.R. 1982 SC 149), Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), Malik Asad Ali v. Federation of Pakistan (PLD 1998 SC 161) and Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869).
Mr. Abdul Mujeeb Pirzada, learned ASC contended that he is appearing on behalf of the members of the Union and it being a public interest litigation locus standi of the petitioners to invoke the jurisdiction either of the High Court or this Court should not be questioned for the purpose of denying relief to the petitioners. He stated that before the completion of the process of privatization, the Privatization Commission itself took into confidence the workers as it is evident from the letter dated December 20th, 2005 because the members of the Union have a right to form the workers and management group for the purpose of giving a bid to purchase the shares of the Mill and in fact in pursuance of such offer the workers were ready to participate in the bid but as at the eleventh hour they were called upon to deposit U.S. $ 30 Million as earnest money which they could not arrange hurriedly although the funds belonging to the workers amounting to about Rs. 18.00 billion were lying with the management. Therefore, the objection to the maintainability of the petitions is without any substance. Reliance was placed on Multiline Associates v. Ardeshir Cowasjee (PLD 1995 SC 423) and Ardeshir Cowasjee v. Karachi Building Control Authority (KMC) Karachi (1999 SCMR 2883). Learned counsel contended that the petitions have also been filed under Article 185(3) of the Constitution against the judgment of the Sindh High Court at Karachi passed in writ petition on 30th of March, 2006, detailed reasons thereof were issued subsequently on 31st May 2006. Against this very judgment, the Federation of Pakistan had also filed a petition under Article 185(3) of the Constitution with the prayer that the same may be set aside. The issues involved being similar, the question of locus standi would be merely an academic and insignificant question.
Syed Sharif-ud-Din Pirzada learned counsel for the Privatization Commission contended that to invoke jurisdiction of this Court under Article 184(3) of the Constitution, two conditions are required to be fulfilled namely infringement of the fundamental rights and absence of alternate remedy. In the case in hand no fundamental right has been infringed and under the scheme of Privatization Commission Ordinance No.LII, 2000 (hereinafter referred to as "Ordinance"), two alternate remedies are available in terms of section 27 and section 28 of the Ordinance. According to learned counsel the judgment relied upon by the petitioner in S.P. Gupta's case ibid, in the circumstances of the instant case is not applicable because thereafter the Indian Supreme Court in the case of BALCO Employees Union (Regd) v. Union of India (AIR 2002 SC 350) has explained the scope of the public interest litigation.
Learned Attorney General, however, at the outset contended that after hearing the case at length by this Larger Bench for a long period, it will not be fair on his part to say that, "no point of public importance is involved in this case", therefore, he will not be questioning locus standi of the petitioners particularly in view of the judgments in the cases of Multiline Associates and Ardeshir Cowasjee ibid.
This Court in the referred cases and the Indian Supreme Court in the case of S.P. Gupta ibid have laid down a rule namely that any member of the public having sufficient interest can maintain an action for judicial redress of public injury arising from breach of the public duty or from violation of some provision of the Constitution or the law and for enforcement of such public duty and observance of such Constitutional provision.
In the case of Benazir Bhutto ibid, it was held that only when the element of public importance is involved, the Supreme Court can exercise its power to issue the writ while sub Article 1(c) of Article 199 of the Constitution has a wider scope as there is no such limitation therein.
In Al-Jehad Trust ibid, it has been held that, "question of locus standi is relevant in a High Court but not in the Supreme Court when the jurisdiction is invoked under Article 184(3) of the Constitution."
In Malik Asad Ali ibid it was observed that under Article 184(3) of the Constitution, this Court is entitled to take cognizance of any matter which involves a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I Part II of the Constitution even suo moto, without having any formal petition.
In Multiline Associates ibid this Court held that requirement of the locus standi in the case of pro bono publico (public interest litigation is not so rigid) has extended scope. This principle has been reiterated in Wukala Mahaz Barai Tahafuz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263)
As far as the judgment in All Pakistan Newspaper Society v. Federation of Pakistan (PLD 2004 SC 600) cited by the learned Sr. ASC Syed Sharif-ud-Din Pirzada is concerned, it is distinguishable because in that case we have held that it pertains to a financial dispute between two groups of newspaper industry i.e. employer and employees and no question of public importance was involved as the parties (employer and employees) were litigating with each other in respect of the validity or otherwise of Wage Board Award published by the Government of Pakistan on 25th October, 2001. Likewise, Balco's case ibid need not be discussed in view of the judgments referred hereinabove and keeping in view that the learned Attorney General has himself conceded that this case involves questions of public importance, therefore cannot be thrown away summarily. Besides we are conscious of the fact that it is not only the petition under Article 184 (3) of the Constitution which is pending consideration before us but at the same time there are two other petitions which have been filed under Article 185(3) of the Constitution (one by the Workers Union and second by the Federation of Pakistan), involving similar questions therefore, keeping in view the importance of the case and the alleged violation of Article 4 and Article 9 of the Constitution, we hold that the petition under Article 184(3) of the Constitution filed by the Wattan Party is maintainable.
"27. Investigations.-(1) The Federal Government or any of its agencies authorized by it, may of its own or on a complaint oversee, scrutinize or investigate any privatization transaction within one year of the completion of the privatization.
(2) After the expiry of the period referred to in sub-section (1), the Federal Government or any of its agencies shall not be empowered to carry out any such scrutiny or investigation.
(a) to adjudicate and settle all matters related to, arising from or under or in connection with this Ordinance;
(b) to adjudicate and settle all matters transferred pursuant to section 31; and
(c) to try offences punishable under this Ordinance."
Learned counsel Mr. Abdul Mujeeb Pirzada contended that the Federal Government itself is petitioner in one of the petitions (C.P. No. 394 of 2006), in the memo of the petition it is supporting the process of privatization as prayer has been made for the dismissal of petition filed on behalf of the Workers Union before the High Court bearing C.P. No. D-240/2006. Besides from day one when the proceedings started the matter was discussed at considerable length wherein number of omissions and commissions in the privatization of the project under consideration have been pointed out which according to him were sufficient to annul the Letter of Acceptance (LoA) dated 31st March, 2006 and the subsequent Share Purchase Agreement between the parties dated 24th April, 2006. But no concern was shown at all on its behalf, therefore, under these circumstances availing an opportunity to lodge complaint before the Federal Government in terms of section 27 of the Ordinance would be nothing but a futile exercise. In this behalf he has placed reliance on Anjuman-e-Ahmadiya, Sargodha v. The Dy Commissioner Sargodha (PLD 1966 SC 639) and The Murree Brewery Co. Ltd v. Pakistan thr. The Secretary to Government of Pakistan, Works Division (PLD 1972 SC 279). He also submitted that because he is challenging the very vires of the Ordinance, he cannot be compelled to avail the so-called remedies.
Syed Sharif ud Din Pirzada, learned ASC for the Privatization Commission opposed the arguments put forward by Mr. Abdul Mujeeb Pirzada learned ASC and stated that in presence of a statutory remedy the petition under Article 199 or Article 184(3) of the Constitution is not maintainable.
Learned Attorney General contended by relying on the principles laid down in The Chairman East Pak Railway Board Chittagong etc v. Abdul Majid Sardar, Ticket Collector Pak Eastern Railway Laksam (PLD 1966 SC 725) and Lahore Improvement Trust, Lahore thr. Its Chairman v. The Custodian Evacuee Property West Pak Lahore (PLD 1971 SC 811) that "the Court to explore possibility of every possible explanation for the validity of an order passed by public authority," suggested resort to section 27 of the Ordinance by making reference to the Federal Government for the purpose of further probe into the case to examine the legality and validity of transaction.
It is important to note that as far as the principle of law discussed in the cases of Anjuman-e-Ahmadiya, Sargodha and Lahore Improvement Trust ibid is concerned, there is no cavil with the same and we with utmost respect approve the same. But at the same time, we have also to keep in mind another very important principle of law enunciated by this Court in the case of Syed Ali abbas v. Vishan Singh (PLD 1967 SC 294) i.e. petitioner cannot be refused relief and penalized for not throwing himself again (by way of revision or review) on mercy of authorities who are responsible for such excesses. This principle has to be read along with the principle laid down in the case of Anjuman-e-Ahmadiya, Sargodha ibid wherein it has been held that if an adequate remedy provided by law is less convenient, beneficial and effective in case of a legal right to performance of a legal duty, the jurisdiction of the High Court can be invoked. Similarly this principle has been reiterated in the The Murree Brewery's case ibid wherein it has been held that if a statutory functionary acts mala fide or in a partial, unjust and oppressive manner the High Court in exercise of its writ jurisdiction has power to grant relief to the aggrieved party.
Thus we are of the opinion that under the circumstances of the case, it would not be in the interest of justice to push the petitioners back to the authority who had already exercised the jurisdiction and is insisting that the action so taken by it is not only in accordance with law as it suffers from no legal discrepancy or infirmity but is also transparent. Therefore under the circumstances, referring the case of the petitioner to the Federal Government or this Court directing investigation under section 27 of the Ordinance would be inappropriate and an exercise in futility and it would also not serve the interests of justice.
Now turning towards the implication of section 28 of the Ordinance a perusal whereof indicates that civil and criminal jurisdiction has been conferred on the High Court to adjudicate and settle all matters related, arising from or under or in connection with the Ordinance as also all matters transferred pursuant to section 31 and to try offences punishable under the Ordinance. In our opinion the matters shall be arising in respect of the rights and obligations of the parties who are the subject of the Ordinance. As far as pro bono publico cases are concerned, those shall not be covered under this provision of law because in such cases Court has been called upon to exercise Constitutional jurisdiction on the basis of the information laid before it that the matter involves question of public importance relating to their fundamental rights individually or collectively. A perusal of section 28 clause a, b, c, indicates that for such like litigants this section provides no remedy for redressal of their grievances.
Besides above reasons there is an important aspect of the case namely these remedies are available within the Ordinance and Mr. Abdul Mujeeb Pirzada learned ASC has challenged its vires on the touchstone of Article 153 & 154 of the Constitution. Therefore the law vires, of which have been challenged, it would not be fair to compel the petitioner to avail the remedy under the same law. The High Court within its limited jurisdiction under section 28 can not strike down any of the provisions of the Ordinance. Furthermore, petitioner's learned counsel has raised issues of great public importance falling within the Constitutional domain of this Court which could not have been adequately addressed to by the Court in terms of section 28 of the Ordinance.
Mr. Abdul Mujeeb Pirzada learned ASC argued that without the approval of C.C.I. privatization of P.S.M.C. is unconstitutional in view of the mandate of Article 154 of the Constitution. The Mill is owned by the people of Pakistan and its tax payers, there is representation of employees of all the Provinces and its sale proceeds are to be spent for alleviation of poverty of the people and discharge of debts, therefore, bypassing the CCI by the Federal Government is not only illegal but is also against the Command of the Constitution. He further contended that despite restoration of the Constitution w.e.f. 31st December, 2002, the C.C.I. has not been constituted and made functional so far. Therefore, the whole process of privatization has become illegal for this reason. He also stated that the learned High Court accepted the arguments of the petitioner in this behalf but declined to grant relief by not exercising discretionary jurisdiction under Article 199 of the Constitution for reasons which are not tenable in law. Therefore, he prayed that on this sole ground the process of privatization of P.S.M.C. deserves to be declared unconstitutional. According to him, even the Ordinance is bad law having not been approved by the CCI.
Syed Sharif-ud-Din Pirzada, learned Sr. ASC contended that as far back as 29th May, 1997, approval for the privatization of P.S.M.C. had been obtained. To substantiate his plea, he has placed on record decision of the CCI dated 29th of May 1997 along with the Schedule containing approval for privatization of Pakistan Steel Mills Corporation and its units and contended that after having taken approval there was no necessity for placing again the matter before the CCI.
Mr. Abdul Hafeez Pirzada learned Sr. A.S.C. contended that Article 173 of the Constitution has directly conferred authority upon the Federation and Provinces to dispose of their property. In this case as well, in exercise of the same authority, the CCI has not been bypassed as the Federal Government had received its categorical, explicit and unambiguous endorsement of the entire privatization programme on a summary submitted to it in accordance with the rules on 25th May 1997 approval of which was granted on 29th May, 1997. He explained the object of establishing the institution of CCI during the process of making of Constitution of 1973. According to him, in the Federal System of Government, it is necessary to take along the Federating Units in the affairs of the Federation and once CCI had taken a decision this Court in judicial proceedings has no jurisdiction to revise the same because under the principles of trichotomy of Powers the three Organs of the State have got their respective areas for the purpose of exercising jurisdiction. Therefore, interference made in the approval of the CCI dated 29th May 1997 would give rise to an anomalous position. Learned counsel placed on record a paper book containing documents of "Constitution Making in Pakistan" ever since the inception of this country. It is to be noted that management of P.S.M.C. had stated in unambiguous terms that the decision of its privatization was dropped in 1998 and in the year of 2000 a decision was taken by the then Chief Executive to revamp the Pakistan Steel Mills and to achieve the object loans were to be arranged from the banks. Two Memoranda of Understanding (MOUs) were also signed with Russian and Chinese Governments for the purpose of providing technical support to the Government of Pakistan to revamp Pakistan Steel Mills. In view of such stand taken by P.S.M.C., Mr. Wasim Sajjad learned counsel appearing on its behalf was asked to explain the position by filing another statement. In compliance of the order, he submitted an explanation wherein he took the stand that, "by implication the privatization process was dropped. The restructuring was approved by the then Chief Executive on 20.05.2000."
Mr. Abdul Hafeez Pirzada, learned counsel for the Federal Government and learned Attorney General were on the same wavelength when they contended that the decision of C.C.I. can only be annulled by the Parliament in a joint sitting in accordance with the provisions of Article 154 (5) or could be rescinded by the CCI itself and such decision cannot be undone by any other functionary. This is in line with this Court's earlier view given in Messrs Gadoon Textile Mills v. WAPDA (1997 SCMR 641) wherein at Page 769 it was observed as under:--
"It is significant to note that the Federal Government has not been authorized to give any direction to the CCI. Clause 5 of Article 154 provides a procedure in a case where the Federal Government or the Provincial Government is dissatisfied with the decision of the Council. Any of the aggrieved governments may refer the matter to Majlis-i-Shura (Parliament) in joint sitting whose decision in that behalf shall be final."
"The Council of Common Interests is an important Constitutional institution which irons out differences, problems and irritants between the Provinces inter se and the Provinces and the Federation in respect of matters specified in Article 154. The Council is responsible to Majlis-e-Shoora, which in joint sitting may from time to time by resolution issue directions through the Federal Government generally or in particular matters to take action as the Parliament may deem just and proper and such directions shall be binding on the Council. Ground C(i) of the dissolution order specifies that the Council of Common Interests has not discharged its Constitutional functions to exercise its powers particularly in the context of privatization of industries in relation to the subject matter mentioned in Article 154."
After perusal of judgment in Muhammad Nawaz Sharif's case as well as an earlier judgment reported in Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan (PLD 1992 SC 646), one can well conceive the importance of CCI and by making it functional the Federal Government can resolve number of issues/differences including the process of privatization of industries owned by the Federal Government as per mandate of the Constitution and procedure laid down therein. In the instant case, the decision/approval was taken to privatize good number of industries mentioned in the schedule attached to the decision dated 29th May 1997 including P.S.M.C. Therefore the view taken by this Court in the case of Messrs Gadoon ibid is respectfully approved with reference to functioning of C.C.I. under Articles 153 & 154 of the Constitution. As a consequence whereof the view taken by the Sindh High Court in the impugned judgment is upheld.
Thus in view of the statement so made on behalf of the Federation of Pakistan as well as learned counsel appearing for Privatization Commission that approval from CCI had already been taken on 29th May 1997, no further discussion is called for except to consider the effect of the stand which has been taken in the written statement by the counsel of PSMC namely that in 1998 the decision was dropped and its restructuring was planned by the then Chief Executive on 20.05.2000. Learned counsel for Federation of Pakistan stated that once the approval has been obtained from the CCI, the same decision cannot be set aside except in accord with the procedure laid down in Article 154(5). On having gone through the relevant Constitutional provision we agree with his contention but at the same time we are mindful of the fact that in the process of restructuring which started after about 3 years of the decision of CCI dated 29.05.1997, the project was restructured by investing huge money. The MoUs were also signed with the governments of China and Russia for the purpose of providing technical support to increase its capacity up to 1.5 metric tons per year and thereafter the Mill had started making profit as is evident from the Statements of Accounts/balance sheets pertaining to the years 2002-03, 2003-2004 and 2004-05. It is significant to note that during these years the project made remarkable profits and according to the stand taken on behalf of PSMC it wiped off all its losses and carried forward accumulated profit of Rs.3.938 billion as on 30th June, 2005, therefore, we observe that in view of these healthy developments having taken place during the intervening period and the divergent stand taken by the counsel for the Federal Government to the effect that order dated 29th May 1997 was never recalled and the stand taken by the counsel for the PSMC that the matter of its privatization was dropped subsequently, by way of propriety if not as a matter of legal obligation, it would be in order if the matter is referred to the Council of Common Interests (C.C.I) for fresh consideration. There is another reason to keep intact the decision dated 29th May 1997 because its validity or otherwise has not been challenged before us nor it was ever challenged before the Parliament in terms of Article 154 (5) of the Constitution.
During the course of arguments, learned counsel for the Federation was called upon to apprise the Court as to whether C.C.I. is functioning or not? He, after obtaining instructions, stated at the Bar on the following day that process for making C.C.I. functional was underway.
Thus in view of the importance of C.C.I. as a body envisaged by the Constitution, we direct the Federal Government to do the needful expeditiously as far as possible but not later than six weeks.
The next most important question raised before us is with regard to the vires of the Privatization Commission Ordinance LII 2000. Mr. Abdul Mujeeb Pirzada learned ASC argued that Ordinance 2000 is ultra vires of the Constitution. He explained that it was promulgated during the period when the Constitution was in abeyance therefore the requirements of Article 154 of the Constitution were not fulfilled. However, on revival of the Constitution it was necessary to amend the same in order to bring it in line with the said Article. According to him, the C.C.I. is an important Constitutional body but perusal of the contents of Ordinance 2000 indicates that it has no role to play for the purpose of getting its policies implemented. As far as the executives are concerned, they are not supposed to take decisions for the purpose of privatization of the industries belonging to the Federal Government or to deal in other fields wherein CCI has got jurisdiction as per its Constitutional mandate. He emphasized that the vires of Ordinance 2000 were challenged before the Sindh High Court but it has failed to dilate upon this aspect of the case as the Constitutional petition has been dismissed in limine. It was also argued by the learned counsel that Constitutional protection available to the Ordinance in pursuance to 17th Amendment in the Constitution does not prohibit the Legislature to repeal or amend different sections of the Ordinance through the process of legislation. Substance of his arguments was that when there is a conflict between Constitutional provision and the sub constitutional provision then the sub Constitutional provision has to yield to the Constitutional provision and different provisions of the Ordinance including sections 2,3,5,6,7,9,14,16,22 are not in consonance with Articles 153 and 154 of the Constitution, therefore, the same are liable to be struck down. Reliance was placed by him on Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445) and Syed Zafar Ali Shah ibid to explain judicial powers of the Court to examine the constitutionality of a law on the subject. He also contended that where a law encroaches upon fundamental rights or it comes in conflict with another provision of the Constitution, the same shall be deemed to be violative of the Constitutional provisions. The workers of P.S.M.C. are earning their livelihood and are responsible for its effective running but they were not permitted to form a group for the purpose of participating in the bid, therefore, section 25 of the Ordinance needs to be amended incorporating a further clause in the modes of privatization and in absence of such provision of law they have been deprived of their fundamental right to life. He further submitted that the Constitution is a social contract and it regulates rights and obligations of its subjects, therefore, any violation of the same by a subordinate legislation calls for striking off the same being contrary to Constitutional commitments between the parties.
Mr. Abdul Hafeez Pirzada learned ASC for the Federation contended that Ordinance 2000 does not suffer from procedural or substantive ultra vires. He argued that perhaps an impression has been gathered that CCI has to be approached for each and every item of privatization which is neither required nor possible. Reliance was placed on Gadoon Textile Mills ibid wherein it has been held that CCI superimposes its will on the Cabinet and the Cabinet is bound under the provisions of Article 154 of the Constitution to follow the decisions and directions of the CCI. According to him it would not be proper to say that in the entire process of privatization CCI is involved. He submitted that Ordinance 2000 was promulgated by the Chief Executive competently under the powers available to him at the relevant time and the same was protected/ratified under Article 270-AA of the Constitution. According to him the intent of the Parliament cannot be overridden by this Court in exercise of the power of judicial review unless it is shown that it is in conflict with any provision of the Constitution. He further explained that this Court can strike down a law on the following touchstones:-
(i) If it is tainted with malice which must be proved as a fact.
(ii) If it lacks procedural propriety which is extension of the principle of natural justice.
(iii) If it is ex facie illegal.
(iv) If there is failure to conform to the principle of proportionality (proportionality has not been defined even in England). In this regard he referred to the principle of reasonableness laid down in Associated Provincial Picture Houses Ltd. v. Wednesbury Corp., [1947] 2 All ER 680.
He also submitted that if this Court at all comes to the conclusion that there is conflict between Article 154 and 270-AA which has provided protection to the Ordinance then the two Articles of the Constitution are to be reconciled as this Court is not empowered to strike down any provision of Constitution.
He further contended that according to his information Rules and Procedure of the Council of Common Interests were promulgated (in exercise of the powers conferred by sub Article 3 of Article 154 of the Constitution) by the C.C.I. in the year 1991 and since then CCI is implementing its policies through the executives who are exercising the jurisdiction as per the provisions of Rules of Business of the Government of Pakistan.
Learned Attorney General for Pakistan (on Court notice) contended that there are two kinds of ultra vires, procedural and substantive. Procedural ultra vires is that law has been made in a manner different from which it should have been made as required by the Constitution and Substantive ultra vires means that it is in conflict with the provisions of the Constitution. Procedural ultra vires is sought to be cured by curative legislation in the form of validation of laws. Article 270-AA cured that procedural ultra vires because it has been protected by this Constitutional provision, therefore, this question is no longer open to this Court. As far as substantive ultra vires is concerned, the Ordinance will be protected throughout the extra Constitutional period and after the restoration of Constitution the Ordinance has been protected by 17th Amendment, therefore, it would be deemed to be a protected law and cannot be called ultra vires. Reliance was placed by him on Miss Benazir Bhutto ibid, Mrs. Benazir Bhutto v. Federation of Pakistan (PLD 1989 SC 66). He further contended that legislation should not be randomly struck down. The Court must endeavour to find every reason for its validity as held in The Province of East Pakistan v. Sirajul Haq Patwari (PLD 1966 SC 854), Mehreen Zaibun Nisa v. Land Commissioner (PLD 1975 SC 397), Inamur Rahman v. Federation of Pakistan (1992 SCMR 563), Multiline Associates ibid, Messrs Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997 SC 582), Pakistan Burma Shell Ltd. v. Federation of Pakistan (1998 PTD 1804), Dr. Tariq Nawaz v. Govt of Pakistan (2001 PLC (CS) 57), Mian Asif Islam v. Mian Mohammad Asif (PLD 2001 SC 499), Pakistan Muslim League (Q) v. Chief Executive of Pakistan (PLD 2002 SC 994) and Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719).
Before examining respective arguments advanced by the learned counsel for the parties it would be appropriate to observe that the concept of Council of Common Interests/Inter Provincial Council was conceived during the making of 1973 Constitution in pursuance of an Accord between the Parliamentarians:--
"To conform to the spirit of federalism, a new arrangement has been worked out to ensure effective participation of the Provincial Governments in sensitive and important spheres of national life. In respect of the subjects in Part II of the Federal Legislative List and the item of electricity in the Concurrent Leglislative List, special provision has been made for the creation of a Council of Common Interest to be appointed by the President as envisaged in the Constitutional Accord. The Council shall consist of the Chief Ministers of the Provinces and an equal number of members from the Federal Government. The Council shall formulate and regulate policies in relation to the specified matters and exercise supervision and control over related institutions."
"24. COUNCIL OF COMMON INTERESTS/INTER PROVINCIAL COUNCIL.
There shall be a Council of Common Interests under the Constitution which shall consist of four provincial Chief Ministers and four members of the Federal Cabinet to be nominated by the Prime Minister.
In respect of the items No.17 , 27 and 29 of the Federal List above and item of electricity on the Concurrent List in so far as it relates to the Federation, the Council shall exercise supervision and control on policy. The institutions relating to these items shall function under the control and supervision of this Council.
The decisions of the Council shall be implemented by the concerned Ministries of the Federal Government.
The Council shall, through the Prime Minister, be responsible to the Parliament."
Subsequent thereto, the Constitution makers transformed the above provisions in Article 153 and 154 of the Constitution. Article 153 provides for the composition of the Council of Common Interests whereas Article 154 deals in respect of the functions and rules of procedure. For convenience these Articles are reproduced hereinbelow:-
"153. (1) There shall be a Council of Common Interests, in this Chapter referred to as the Council, to be appointed by the President.
(2) The members of the Council shall be--
(a) the Chief Ministers of the Provinces, and
(b) (an equal number of members from the Federal Government to be nominated by the Prime Minister from time to time.
(3) The Prime Minister, if he is a member of the Council, shall be the Chairman of the Council but, if at any time he is not a member, the President may nominate a Federal Minister who is a member of the Council to be its Chairman.
(4) The Council shall be responsible to [Majlis-e-Shoora] (Parliament)].
"154. (1) The Council shall formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and, in so far as it is in relation to the affairs of the Federation, the matter in entry 34 (electricity) in the Concurrent Legislative List, and shall exercise supervision and control over related institutions.
(2) The decisions of the Council shall be expressed in terms of the opinion of majority.
(3) Until [Majlis-e-Shoora] (Parliament) makes provision by law in this behalf, the Council may make its rules of procedure.
(4) [Majlis-e-Shoora (Parliament)] in joint sitting may from time to time by resolution issue directions through the Federal Government to the Council generally or in a particular matter to take action as [Majlis-e-Shoora (Parliament)] may deem just and proper and such directions shall be binding on the Council.
(5) If the Federal Government or a Provincial Government is dissatisfied with a decision of the Council, it may refer the matter to [Majlis-e-Shoora (Parliament)] in a joint sitting whose decision in this behalf shall be final."
A perusal of Article 154 indicates that the Council shall formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and in so far as it is in relation to the affairs of the Federation, the matter in entry 34 (electricity) in the concurrent legislative list and shall exercise supervision and control over related institutions. There is no need to furnish the details of the matters enunciated in Part II of the Federal Legislative List because presently we are only concerned in respect of privatization of Federally owned industries. It is nobody's case that in the matter of disinvestment or privatization of PSMC the CCI has no jurisdiction.
"Based on the functions and powers of CCI, its concurrence is necessary for the privatization of utilities (electricity, oil, natural gas and miners resources) and state-owned entities (industrial units and other undertakings). The honourable Supreme Court of Pakistan in Muhammad Nawaz Sharif v. the Federation of Pakistan (PLD 1993 Supreme Court Page 473) had observed that the Government ought not to have transferred any units included in Part II of the Federal Legislative List to the private sector in the absence of a policy or policies framed by the CCI."
"The Council of Common Interests (CCI) considered the summary dated 25th May, 1997 submitted by the Privatization Commission on "Privatization of Utilities and other State Owned Entities" and decided to grant ex post facto approval to the disinvestments completed by the Privatization Commission so far subject to the reservations that non transparent and irregular transactions during the previous government's tenure of office as in the case of Kot Addu Power Station, PTC, National Press Trust Newspapers and any other transactions should be thoroughly investigated and necessary action taken to proceed against those involved.
II. The CCI decided to approve the recommendations as outlined in the Summary submitted by the Privatization Commission for early implementation.
III. The CCI decided that the Privatization Commission should include at least one representative from each Province.
IV. The CCI decided that the net sale proceeds accruing from privatization process should be utilized primarily for debt retirement and should not be used for budgetary support.
V. The CCI approved the sale of surplus railway land for improving the financial position of the railways, providing better railway facilities and retirement of debt. The sale of surplus land available with federal and provincial governments/agencies should be expedited to retire the debt of federal and provincial governments.
VI. The CCI decided that the share of hydel profits or royalties/gas development surcharge from Oil and Gas sources should remain at levels at which it would have remained, had there been no privatization.
VII. The CCI endorsed the need for establishment of Regulatory Authorities i.e. for power, gas, telecommunications, railways and wherever required. The Regulatory Authorities, apart from other functions, should keep in view the CCI decision at (VI) above concerning their respective fields."
It is to be noted that prior to the promulgation of Ordinance 2000 the privatization was being done by a Commission established under the executive fiat of the Federal Government. Later on, apparently to implement the decisions of the CCI, Ordinance 2000 was promulgated also with a view to structure the discretionary authority of the Privatization Commission and to ensure greater transparency.
Article 8 of the Constitution grants the power of judicial review of legislation according to which this Court is empowered to declare a law void if it is inconsistent with or in derogation to the fundamental rights. However, at the same time this Court is empowered to declare any legislation contrary to the provisions of Constitution under some of the identical provisions of the Constitution as under Article 143 of the Constitution on having noticed inconsistencies between the Federal and Provincial laws the Court is empowered to declare that which out of the two laws is in accordance with the Constitution. Besides it is an accepted principle of the Constitutional jurisprudence that a Constitution being a basic document is always treated to be higher than other statutes and whenever a document in the shape of law given by the Parliament or other competent authority is in conflict with the Constitution or is inconsistent then to that extent the same is liable to be declared un-Constitutional. This is not for the first time that a law like Ordinance 2000 has come for examination before the Court as in the past a number of laws were examined and when found against the Constitution the same were declared void and of no legal effect. Reference may be made to the case of Syed Zafar Ali Shah v. Gen. Pervez Musharaf, Chief Executive of Pakistan (PLD 2000 SC 869) wherein it was held that judicial power means that the superior courts can strike down a law on the touchstone of the Constitution. The nature of judicial power and its relation to jurisdiction are all allied concepts and the same cannot be taken away. It is inherent in the nature of judicial power that the Constitution is regarded as a supreme law and any law contrary to it or its provisions is to be struck down by the Court, as the duty and the function of the Court is to enforce the Constitution. Prior to the case of Zafar Ali Shah, this Court had examined different laws and declared that provisions of some of them were contrary to the provisions of the Constitution. Reference to the cases of Mehram Ali ibid, Sh. Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504), Khan Asfand Yar Wali v. Federation of Pakistan (PLD 2001 SC 607), etc is pertinent. Keeping in view the principles defining the powers of judicial review of this Court to examine a law at the touchstone of the Constitution, we have considered the arguments put forward by learned counsel for the petitioner and have also minutely gone through the provisions/sections of the Ordinance 2000 referred to by the learned counsel in his arguments to ascertain as to whether any of them negates the provisions of the Constitution.
It may be noted that the main concern of Mr. Mujeeb Pirzada was that as under Article 154 of the Constitution, it is the domain of the C.C.I. to lay down policies, therefore, with reference to the process of privatization the legislature must have given some role to the C.C.I. instead of conferring the jurisdiction upon the Privatization Commission. According to him, even in the definition clause C.C.I. has not been mentioned. It may be noted that a perusal of the Preamble of Ordinance 2000 shows that it has been drafted substantially and in consonance with the spirit of the summary which was put up before the C.C.I. on 25th May 1997. The Federal Government had made some commitments therein that the proceeds of privatization will be utilized for the retirement of the Federal Government debt and for poverty alleviation. To achieve the object a Privatization Commission has been established under section 3 for carrying out the purpose of the Ordinance. It is most important to note that earlier to the promulgation of the Ordinance, the Privatization Commission was responsible for disinvestment of the government entities in the industrial sector and it was functioning under the Notification bearing No. F(5)(1) Admn-1/1991 dated 22nd January, 1991. But after the promulgation of the Ordinance the said notification was rescinded in terms of section 3(ii) of the Ordinance.
The provisions of section 5 of the Ordinance deal with the functions and powers of the Commission. One of the functions enumerated therein is to recommend privatization policy guidelines to the Cabinet etc. It is to be noted that in the year 2000 when the Ordinance was promulgated at that time the Constitution was in abeyance. Therefore, the Commission was authorized to provide guidelines to the Cabinet but no sooner the Constitution has been revived the policy guidelines of privatization prepared by the Commission shall be subservient to the policy guidelines of the CCI which it has to provide under Article 154 of the Constitution. Under the scheme of the Constitution the Commission independently cannot provide such guidelines and it has to follow whatever guidelines are provided by the CCI.
Section 6 deals with the composition of Board of the Commission, general management and decision of the affairs of the Commission. This provision has been promulgated for the purpose of smooth working of the Commission for the purpose of implementing the Constitutional mandate given to the CCI in terms of Article 154 of the Constitution.
Section 7 of the Ordinance deals with the appointment of the Chairman, Secretary and the members by the Federal Government. Obviously for the purpose of carrying out the object and the purposes of the Privatization Commission, appointments have to be made by the Federal Government and such appointment when made cannot be said to be un-Constitutional.
As far as section 9 relating to the delegation of powers by the Board its examination does not identify violation of any of the provisions of law for the purpose of holding it contrary to the Constitution.
Likewise sections 14, 16 and 22 deal with the privatization fund and their distribution for the purpose of the smooth running of the affairs of the Commission. Sections 14 and 16, deal with the establishment of fund, preparation of budget of the Commission which will be utilized while performing its functions and exercising its powers under the Ordinance.
As far as section 16 is concerned, it is one of the important sections in the Ordinance therefore the same is reproduced hereinbelow:-
"Privatization Fund.--(1) The Commission shall establish and maintain a distinct and separate Privatization Fund in which all Privatization proceeds shall be deposited. The Commission shall, out of the moneys so deposited, withdraw and contribute to the Commission's Account such amount or amounts as may be needed by it from time to time but only to supplement the other resources therein if and to the extent necessary. The remaining Privatization proceeds shall be kept in trust for and distributed to the Federal Government or the enterprise owned or controlled by the Federal Government entitled to such proceeds."
The above provision seems to have been enacted to carry out the object for which CCI has given the approval on the summary dated 25th May 1997 viz that the sale proceeds of the project shall be used for the purpose of retirement of Federal Government debts.
2.---Amendment of Section 16, Ordinance LII of 2000.--In the Privatization Commission Ordinance, 2002 (LII of 2000) in section 16, in subsection (1) for the full stop at the end, a colon shall be substituted and thereafter the following provisos shall be inserted, namely:-
"Provided that the Commission may, if so required by the Federal Government, withhold a specified amount out of the Privatization proceeds, of the Government of Pakistan's shares in the oil and gas fields specified in the Schedule to this Ordinance.
Provided further that the amount withheld under the foregoing proviso shall be paid to the Federal Government and shall not exceed the sum equivalent to such proceeds as may be necessary to compensate the Federal Government for the investments made by it in such oil and gas fields."
Perusal of the above provisos indicates that the sale proceeds can be used by the Federal Government for the purpose other than that which has been approved by the CCI therefore the Federal Government has to examine its implication and to ensure that it takes ex post facto approval from the CCI.
Thus it is concluded that subject to above observation, section 16 is also not contrary to any of the provisions of the Constitution.
"22.---Privatization Programme.--Subject to the provisions hereinafter provided, the Commission shall, after approval by the Cabinet, carry out the Privatization programme in the prescribed manner."
Learned counsel emphasized that in terms of Article 154 of the Constitution, it is the CCI which has to give the programme and as this section gives power of approval to Cabinet, it is in conflict with Article 154. At this juncture Mr. Abdul Hafeez Pirzada, Learned Sr. ASC appearing for the Federal Government stated that all the policies of the CCI have to be implemented by some agency therefore section 22 has provided a vehicle for the implementation of such policy. A perusal of this section indicates that it does not speak in respect of the policy which essentially has to be framed by the CCI under Article 154(1) of the Constitution. Admittedly CCI has no implementing agencies, therefore, the Constitution makers had only assigned the job of giving the policies to it and as far as their implementation is concerned for that purpose Privatization Commission has been established. As stated hereinabove initially the Commission was acting under a notification but then it has been institutionalized by way of promulgating Ordinance 2000. It is Cabinet which is bound by the policy of the CCI and has to see that privatization programme is in accord with the same.
Before discussing the manner in which CCI policies are implemented by the Federal Government it would be appropriate to note that framing the policy and issuing the programme for the purpose of carrying out privatization are distinct and different from each other. The word "Policy" has been defined in Black's Law Dictionary 7th Edition Page 1178 as follows:
"the general policies by which a Government is guided in its management of public affairs."
Whereas the word "Programme" has been defined in 20th Century Dictionary Page 1107:
"the schedule of proceedings for and list of participants in a theatre performance, entertainment, ceremony, etc; an agenda, plan or schedule, a series of the planned projects to be undertaken".
On having seen the meanings of both the expressions one can conveniently conclude that the programme which is to be provided by the Commission is merely a schedule for the purpose of the privatization in a manner prescribed in law.
Rule 5 is again important as it deals with the meetings of the Council. The Chairman from time to time has been authorized to summon a meeting of the Council to meet at such time and place as he thinks fit. According to this rule there shall be at least one meeting of the Council in a year.
As far as Rule 14 is concerned, according to it the minutes of the meeting should be circulated by the Cabinet Division to all the members who shall return the same after perusal. Discrepancies, if any, shall be reported by the members within seven days of the receipt of the minutes. Sub rule (2) says that the Cabinet Division shall also pass on the decision of the Council to all concerned for necessary action but the primary responsibility for the proper implementation of the decision would be that of the sponsoring secretary or the chief secretary of the Province concerned who would ensure that the decision has been duly passed on to all the agencies concerned. As per sub rule (4) it is the responsibility of the Cabinet Secretary to watch the implementation of the decision and the Secretary of the Division concerned or the Chief Secretary of the Provincial Government concerned shall supply to the Cabinet Secretary such documents as the latter should by general or special request require to enable him to complete his record of the case and to satisfy himself that the decision has been fully implemented.
It is important to note that a perusal of both these rules abundantly makes it clear that the policy decisions of the CCI are required to be implemented by the Cabinet Secretary as well as the Secretary of the concerned Ministry. Therefore, it is not correct to assert that the powers of the C.C.I. have been transferred/delegated to the Commission for the purpose of making its policies independent of C.C.I. while discharging the functions in terms of section 5 as well as section 22 of the Ordinance 2000. It would not be out of place to mention that as far as the procedural rules are concerned they have got Constitutional support/backing, therefore, whatever decision will be pronounced by the CCI the Executive Government in discharge of its functions in terms of Article 97 of the Constitution is bound to implement the same unless it is varied by the Parliament. It may be recorded that validity of these Rules has not been challenged before us.
We may point out here that the procedural rules are not ordinary rules framed under an Act of Parliament but are the rules which have been framed under the Constitutional provision, therefore, their status would not be less than that of an Act of the Parliament in any manner and so long Majlis-e-Shoora has not made the rules they shall hold the field. There is identical rule making provision in the Constitution i.e. Article 191 which confers power upon the Supreme Court and Article 202 which confers power upon the High Courts to frame their rules. Similarly Articles 90 and 99 confer powers upon the Federal Government to frame their Rules of Business.
Thus it is held that the procedural rules framed by the CCI are required to be adhered to strictly for the purpose of implementation/carrying out its policies.
All the above provisions have been tested by us at the touchstone of Article 8 of the Constitution in the light of the arguments put forward by the parties' counsel. But we fail to find any provision in the Ordinance 2000 to be contrary to any of the fundamental rights. Besides it has got constitutional protection under Article 270-AA and adhering to the principles laid down in Mehmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426) it was promulgated competently by the Chief Executive and it has not been shown to us that either it has been framed by an incompetent authority, or that it suffers from mala fides and lack of jurisdiction. In as much in the post revival period of the Constitution when the Court's powers were restored for judicial review to examine the legislation at the touchstone of the Constitution nothing has been identified or pointed out lacking or against the mandate of the Constitution as has been discussed hereinabove. Therefore, it is held that the Privatization Commission Ordinance, (LII) of 2000 is not ultra vires of the Constitution.
The next question is in respect of the judicial review of the policies of the Government. It is well settled that normally in exercise of the powers of judicial review this Court will not scrutinize the policy decisions or to substitute its own opinion in such matters as held in Messrs Elahi Cotton Mills ibid. Likewise in the case of Balco Employees ibid, the Supreme Court of India observed as follows:-
"Process of disinvestments is a policy decision involving complex economic factors. The Courts have consistently refrained from interfering with economic decisions as it has been recognized that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the Courts would decline to interfere. In matters relating to economic issues, the Government has while taking a decision, right to "trial and error" as long as both trial and error are bona fide and within limits of authority."
This view is in line with this Court's view as given in Elahi Cotton ibid. Similar view was taken by the Indian Supreme Court in Delhi Science Forum v. Union of India (AIR 1996 SC 1356).
"I do not wish to repeat what I have said, but it might be useful to summarize once again the principle, which seems to me to be that the court is entitled to investigate the action of the local authority with a view to seeing whether it has taken into account matters which it ought not to take into account, or, conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not that of an appellate authority to override a decision of the local authority, but is that of a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in it."
This view was further reiterated and the principle laid down therein was followed in Nottinghamshire County Council v. Secretary of State for the Environment and another appeal (1986) 1 All ER 199) wherein the Court observed as follows:
"The law has developed beyond the limits understood to apply to judicial review as practiced by the courts in 1947. The ground on which the courts will review the exercise of an administrative discretion by a public officer is abuse of power. Power can be abused in a number of ways: by mistake of law in misconstruing the limits imposed by statute (or by common law in the case of a common law power) on the scope of the power; by procedural irregularity; by unreasonableness in the Wednesbury sense; or by bad faith or an improper motive in its exercise. A valuable, and already 'classical'; but certainly not exhaustive analysis of the grounds on which courts will embark on the judicial review of an administrative power exercised by a public officer is now to be found in Lord Diplock's speech in Council of Civil Service Unions v. Minister for the Civil Service [1984] 3 All ER 935, [1985] AC 374."
There is no cavil to the proposition being espoused by learned Attorney General with reference to Peter Can's "An Introduction to Administrative Law" 2nd Edition that the Court while exercising power of judicial review may not express opinions on polycentric issues requiring technical expertise and specialized knowledge. In the instant case, however, we are seized not with a polycentric issue as such but with the legality, reasonableness and transparency of the process of privatization of the project under consideration i.e. PSMC. These are well established basis for exercise of judicial review. Thus it is held that, in exercise of the power of judicial review, the courts normally will not interfere in pure policy matters (unless the policy itself is shown to be against Constitution and the law) nor impose its own opinion in the matter. However, action taken can always be examined on the well established principles of judicial review.
Barrister Zafar Ullah Khan learned ASC contended that process of privatization of PSMC lacks transparency for number of reasons which he has explained in his petition duly supported with evidence available to him, therefore irrespective of the fact as to who is the successful bidder the transaction deserves to be declared contrary to the provisions of the Ordinance 2000 as well as rules framed thereunder. Mr. Abdul Mujeeb Pirzada learned ASC as well as Ahmar Bilal Sufi Advocate who appeared on behalf of Intervener (Iftikhar Shafi) supported his contention. Learned counsel for the Federation, for Privatization Commission, for P.S.M.C. and the bidders contended that the transaction of privatization of PSMS has been completed in the most transparent manner, therefore, calls for no interference by this Court. Learned Attorney General, however, contended that in the facts and circumstances of the case, the Court may not enter into controversial facts and can find out middle way to resolve the controversy, the suggested way was to direct investigation provided under section 27 of the Ordinance 2000.
We consider it appropriate at this stage to first of all ascertain the status of the material which is available on record in order to decide as to whether the Court has to confine to the material which has been placed on record only by the petitioners or in view of the importance of the case the documents which are not disputed between the parties can be taken into consideration. Learned senior ASC for the Privatization Commission stated that as far as the newspaper clippings are concerned those cannot be considered valid piece of evidence for judicial review. Reference in this behalf has been placed by him on the case of Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others (1986 SCMR 1736). He further emphasized that if the practice of equating the news clippings with evidence is allowed then every public interest litigation will be based on the press clipping. It will be highly dangerous. Similarly learned Attorney General contended that it is not the first case in which the reliance has been placed on the news clippings but there are may other cases like Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57), Khawaja Ahmad Tariq Rahim ibid, Miss Benazir Bhutto ibid and Mian Muhammad Nawaz Sharif ibid but the distinction which is required to be noted by this Court is that in the cases which he has referred to the decision had already been taken by the President of Pakistan for the purpose of forming his view not only on the basis of media reports but information received by him from different sources and this Court had to examine the validity of the decision of the President in dissolving the Assembly or taking action for banning a political party whereas in the instant case the Court is being called upon to accept the news clippings and based on the same give a verdict that the transaction of privatization lacks transparency which according to him is not possible unless the allegations are proved in accordance with law. He contended that all these judgments were reconciled by the Lahore High Court in the judgment reported in Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2004 Lahore 130) authored by one of the learned Member of this Bench Mr. Justice Tassaduq Hussain Jillani. In this context he also relied upon the judgments in the case of Benazir Bhutto v. President of Pakistan (PLD 2000 SC 77) and Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583). In the case of Pakistan Lawyers Forum ibid, the learned author Judge laid down following parameters for the purpose of taking judicial notice of a newspaper report and articles:-
(i) Where direct evidence is not available.
(ii) Where it is sought to be proved that a person has notice of the contents of the newspaper report.
(iii) Where it is sought to be shown that a person is an author or otherwise responsible for the statement or article published in a newspaper which is to be used against him.
(iv) In cases of defamation.
(v) If the issue/occurrence is rather old and eye-witnesses are either wanting or less reliable.
From the above parameters laid down by the learned Lahore High Court it is manifest that newspaper reports and articles can only be used in above exceptional circumstances meaning thereby that if on record admissible evidence is available which is not disputed between the parties particularly in the cases where the defendant/respondent himself had brought on record certain documents in proof of his plea then the Court is not debarred to look into the same for the purpose of arriving at a just conclusion particularly in the exercise of jurisdiction under Article 199 and Article 184(3) of the Constitution, where the Court had no occasion to record the evidence itself and had to base on the pleadings of the parties who are supported with the documents like the instant case although the petitioners in Const. Petition No. 9 of 2006 had relied upon the press clippings and articles but the respondents either on their own or under directions of the Court had brought on record material to satisfy the Court that the transaction under challenge is in accordance with law. Therefore, while accepting such request and declining to give relief, it would be incumbent upon the Court to rely upon the documents which are not disputed between the parties and such documents can be considered/treated as evidence on record. It may be noted that in the judgment passed by this Court in Constitutional Petition No. 59 of 1996 Mohtarma Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388), a review was filed under Article 188 of the Constitution on the premise that in the judgment under review findings had been recorded in a summary manner and such findings may be detrimental during the trial of the petitioner on different charges. Keeping in view this aspect, this Court observed in the case of Benazir Bhutto ibid that in order to remove any doubt, it was clarified that the observations made in the order under review were restricted in their application to the proceedings under Article 184 of the Constitution for the purpose of Article 58 (2-b) alone and were not to be treated as a proof of charges for any other purpose. In Mian Muhammad Shahbaz Sharif ibid, this Court observed as under:-
"23. As far as evidentiary value of press reports is concerned, it is noted that one line of precedents in the jurisprudence of the country is that no evidentiary value is attached to the press reports and no reliance can be placed on a press report where a person claims a legal right on its basis. The Courts do not decide cases on press reports. In the other line of authorities, such as Wali Khan's case, Ms. Benazir Bhutto's case and Mian Muhammad Nawaz Sharif's case, the press reports are relied upon, but these cases are distinguishable. This Court in exercise of its jurisdiction under Article 184(3) does not act as a Court of appeal, but as a Court of review.
We have no reason to disagree with the above proposition of the law. However, in the present case controversy is not only to be settled on the basis of the press clippings which were filed for the first time when the petition was submitted by the petitioner under Article 184(3). The other petition filed by Mr. Abdul Mujeeb Pirzada bearing (C.P.No. 345 of 2006) also has no documents to decide the factual controversy perhaps for the reason that when originally petitioner invoked the jurisdiction of the High Court under Article 199 of the Constitution the petition was dismissed in limine and against the short order followed by detailed reasons, petition for leave to appeal was filed. At the same time the Federation of Pakistan has also filed petition for leave to appeal (No. 394 of 2006) against the same judgment of the Sindh High Court. Thus, we will be evaluating the documents which have been placed on record by the respondents themselves. Amongst those, the important documents which were filed on behalf of the PSMC in pursuance of order dated 18th May 2006 passed by this Court are as follows:-
(i) Comprehensive report about the existing affairs of the Mill along with its assets and the balance sheets duly audited for the last three years.
(ii) The Privatization Commission also produced before the Court complete proceedings including the summary it submitted and the deliberations/proceedings by the Cabinet Committee for Privatization, its decisions and the reasons/grounds which persuaded the Commission and the Government of Pakistan to privatize Pakistan Steel Mills.
Some other documents including Memorandum and Article of Association of PSMC were also placed on record. Likewise financial statements for the period ended June 30th 2003, June 30th 2004 and June 30th 2005 were filed without expressing any reservation to their admissibility. Similarly on behalf of the Privatization Commission all the necessary documents were filed including a secret report of CCI approving the privatization of the PSMC along with other projects. It is important to note that this document otherwise was not part of the pleadings but was placed on record during the course of hearing.
It is most interesting to note that as far as the Government of Pakistan/Federation of Pakistan is concerned, it also filed a thick paper book of about 650 pages containing documents and other record of proceedings/ deliberations taking place during the process of the privatization. The petitioners have not denied these documents in any manner whereas the respondents are bound by the same. Therefore, for our findings/decision, we will be relying upon/referring to these documents rather than press clippings or media reports, unless reference to latter is found absolutely necessary and we are convinced of its correctness and authenticity.
(i) Whether the terms of reference framed for the valuer were in accord with the Privatization Commission Valuation Rules, 2001?
(ii) Whether the method adopted in valuing the property satisfied the mandate of law contained in Privatization Ordinance 2000 and the rules framed thereunder and whether it is in accord with the internationally recognized principles in this regard?
(iii) Whether the process of pre-qualification of potential bidders satisfied the requirement of Privatization Commission Regulations?
(iv) Whether the decision dated 31.03.2006 taken by the Cabinet Committee (CCOP) to sell the Mill if the bid was above Rs.16.18 per share satisfied the requirements of law?
(v) Whether the final terms/concession offered to the highest bidder/consortium on 31.03.2006 were in accord with the terms and conditions of initial public offering given to the potential bidders through advertisement dated 19.10.2005 and if not whether these can be justified on the touchstone of law and "reasonableness"?
In view of the above points it may also be borne in mind that CCI vide its approval dated 29th May 1997 had given the approval for the privatization of the Federal Government owned projects or entities for the purpose of retiring the debts and this object has been duly transformed in the Preamble of the Ordinance 2000, therefore, keeping in view the object for privatization it should have been the endeavour on the part of the Privatization Commission to adopt such ways and means which may fetch highest price of its assets. Admittedly, in this context the report of the statement of affairs submitted on behalf of the Chairman of PSMC becomes more relevant coupled with the Statements of Accounts. The owners generally make their efforts to show less book value of the assets for purpose of lessening the tax burden on the concern. Admittedly such balance sheets and the statements of accounts were never prepared for the purposes of disposing of the assets, shares etc in the market. It is not disputed that before the appointment of Financial Advisor (F.A.), the P.C. was required to determine and decide the most important issue i.e. valuation of property according to section 24 of the Ordinance 2000 and its mode. The valuation of property is to be done in the prescribed manner i.e. the Privatization Commission (Valuation of Property) Rules, 2001 by independent valuers who are to be hired in accordance with Privatization Commission (Hiring of Valuers) Regulations, 2001. It may be noted that as per section 2 (l) of the Ordinance, property "includes any right, title or interest in property, moveable or immovable in whole or in part or any means and instruments of production owned or controlled directly or indirectly by the Federal Government or any enterprise owned or controlled by the Federal Government whether in or outside Pakistan". The cumulative effect of the relevant law/rules/regulations is that the valuation of the property is part of the process of privatization of an ongoing concern. This conclusion about legislative intent is further reiterated by the Privatization Commission (Hiring of Valuers) Regulation 2001. Regulation 3 of which provides that for a fair and independent valuation of the property the Privatization Commission shall frame terms of reference for the valuer which shall, "include inter alia, a brief history of the entity, the financial position, a description of the produce line/service of the entity if any, a description of land, building, plant and machinery, the current assets and liabilities and the current state of industry."
In the instant case during the hearing of the case, the land of PSMC had been one of the focal points for consideration, both for the Court as well as for the learned counsel appearing on behalf of the parties. Perhaps this issue has arisen in view of the report which has been submitted by the PSMC in respect of its affairs which says that the value of the non-core property situated in the downstream industrial estate is considerably high, therefore, the valuation of the land has attained more importance under the circumstances of the case. As already stated in Para (supra) the terms of reference given by the Privatization Commission to the valuer did not make any reference to determine the value of land. A perusal of the report of the statement of affairs of the PSMC reveals that PSMC has total of 19086 acres of land out of which little less than 9000 acres is meant for labour colony and little more than 1000 is earmarked for plants, storage of raw material and waste products. The Government of Pakistan has offered plant and machinery located on 4457 acres of the land for bidding purposes but unfortunately in the reference sent to the Financial Advisor nothing was stated for the valuation of the land and if the same was added in the assets then what would be the price of a share which the government was going to privatize. It was all the more essential as strategic equity share of 75% and management control was being handed over to the successful bidder. With this percentage of share holding, the owner under the Companies Ordinance has very wide powers. It was precisely for these reasons that, "the Disinvestment Commission of India" while laying down policy guidelines stressed the need that if strategic sale of equity holding of more than 50% has been offered for sale then the valuation of land becomes necessary. The report lays down as under:-
"Strategic sale implies sale of a substantial block of government holdings to a single party which would not only acquire a substantial equity holdings of up to 50% but also bring in the necessary technology for making the PSU viable and comparative in the global market. It should be noted that the valuation of the share would depend on the extent of disinvestment and the nature of share holder interest in the management of the company. Where the Government continues to hold 51% or more of the share holding the valuation will relate mainly to the shares of the company and not to the assets of the company. On the other hand where shares are sold through strategic sale and management is transferred to the strategic partner, the valuation of the enterprise would be different as the strategic partner will have control of the management. In such cases the valuation of land and other physical assets should also be computed at current market values in order to fix the reserve price for the strategic sale."
The afore-referred recommendation of the Disinvestment Commission of India is in accord with the spirit which underlies section 24 of the Privatization Ordinance, 2000 and rule 3 of the Privatization Commission (Hiring of Valuers) Regulations, referred to above. When the case was being heard and reports were being examined the learned counsel appearing for the respondents candidly admitted that the Financial Advisor (City Group) had not valued the land on which the PSMC is located which is described as core land. This fact is also evident from the report of the City Group. Contrary to it the agreement of sale and purchase as per clause 4.2 of the Share and Purchase Agreement dated 24.04.2006 entered with purchasers, lays down condition precedent to completion that notwithstanding any other provision of this agreement completion shall not occur until and unless the unmutated land has been mutated in the name of the company in the relevant record of rights. When we inquired from the learned counsel for P.C. that without adding the value in the property (assets) of PSMC in terms of section 24 read with valuation rule 3 how can the property/land be mutated, he got recorded following statement as an officer of the Court but not as a counsel for P.C.:-
"Admittedly the land has not been evaluated. What is the nature of the land subject to the document which has been produced by the learned Advocate General of Sindh, my submission is that since the land has not been valued and it appears that land was partly acquired under Acquisition Act for the purpose of the PSM by the Sindh Government and secondly it was given by the Sindh Government at a special rate again for the purpose of Steel Mill, so my personal opinion, I am not speaking as a counsel for the Privatization, my personal opinion as officer of the Hon'ble Court, that so long as the unit of the Steel Mills they can leave/use it, but if they are not going to leave/use it as Steel Mill then they are not entitled to the land, it will revert to the Federal Government, subject to the document which will come."
Whereas contrary to the above statement Mr. Khalid Anwar who appeared on behalf of the successful bidders contradicted the above statement and stated as follows:-
"The land always belong to a company and name of the Company is PSM Co. Before the sale to me the land belongs to the company. The shape of the agreement the foundation says I am buying shares in the company. A separate question what does the company owns, the answer is the company owns land, plant, current assets. Land as such is not being sold. Not a single square inch of the land as such is being sold. Why not? The land always belong to the company; the land will always continue belong to the company. It will never ever be mutated in the name of the buyer. All that is happened is that out of that 19000 acres of land, which is already in the name of the company, the company will surrender only 13500 acres, and small amount of few hundred acres will be transferred in the name of the company not in the name of the buyer. I state in all integrity and seriousness before your lordship that my client is not buying a single square inch. Not one."
The above facts are sufficient to draw the inference that in the valuation process of the property the land underneath the unit was not added. Similarly A.F. Ferguson & Co. one of the Advisors to assist the City Group (F.A) engaged to conduct the accounting, tax, HR and I.T. due diligence had stated in unequivocal terms that they had conducted their due diligence review based on the draft UNAUDITED financial statements of the Corporation for the year ended June 30, 2005 which were provided to them by the management on September 16, 2005. The data provided to the F.A. was all the more insignificant as it had been informed by the management that significant adjustments had been incorporated in the financial statements of the Corporation in the year ended June 30, 2005 subsequent to the date on which the un-audited financial statements were provided to them for the purpose of their report. It was admitted at the Bar by the learned counsel appearing on behalf of the official respondents that these unaudited financial statements were prepared on book value (historical value and not on the basis of market value of its assets, stock in trade raw material etc). It is important to note that the market value of the assets is reckoned all over the world, reference in this behalf may be made to the report prepared by the experts in the exercise carried out under the auspices of United Nations. While commenting on the mode of valuation the report concludes as under:-
"Unfortunately, the lesson of valuation as an inexact science has not been easy to learn. Political expediency (e.g. government officials often believe that the more financially rigorous the valuation is, the more politically defensible the sale will be) and the investment banking culture brought by most Western financial advisors, has led to the construction of sophisticated valuation models in perhaps too many privatization exercises.
This is not to suggest that conventional valuation techniques are useless or should not be applied. Rather, their results should be viewed with an understanding of this uncertain and evolving context. There is never" one right answer." The quality of the results of the valuation exercise is a function of the accuracy of the inputs used and the validity of assumptions made. The adage "garbage in-garbage out" rings true in this setting. Ultimately, we believe that resources are better spent developing and strengthening market-based mechanisms for price discovery, rather than relying on armies of investment bankers to conduct a valuation." (Emphasis is supplied).
"..........The government, on the other hand, has a fiduciary responsibility to its citizens when it privatizes an asset. It is entrusted to sell privatizable assets at or above their fair market value, and must take every precaution to ensure that this happens. Agreeing to sell state assets below their market value is tantamount to favouring a buyer, and it deprives the state of needed financial resources. While this may sometimes be politically desirable---for example, in the case of employees of privatized companies---transparency is crucial. Thus the size of the discount offered should be determined and publicly disclosed."
(Emphasis is supplied).
The above quotation from the World Bank Report goes to show that the Government must make efforts to adopt such a procedure on the basis of which fair market value of its assets can be achieved. As far as the judgments cited by the learned Attorney General are concerned, which are referred to hereinabove, those are not helpful in the context of the instant case, in as much as they are relatable to fixation of share for the purposes of Wealth Tax and Income Tax Act. These do not seem to be relevant for determining the share value for the purposes of privatization under the Ordinance.
Mr. Khalid Anwar, learned Sr. ASC appearing for the bidder stated that the bidders before the bid got prepared valuation report for their consumption from an independent valuer and the reference price fixed by the said valuers was mostly similar, therefore, the report of the City Group does not suffer from any material irregularity.
Suffice to observe in this behalf that the method of valuation favoured by buyers is known as "Discounted Cash Flow" (D.C.F.) and the method liked by the seller for calculating market value of share are different and distinct from each other. Incidentally the bidders got assessment of the share on the basis of historical evaluation of the assets handed over to it by PSMC, rightly so because their interest was to purchase the share at a lesser value whereas as has been noted above, generally this formula is not preferred by the seller. Be that as it may, even in the report which has been relied upon by the bidders, the assets including the land have not been evaluated and the valuation has been based on the discounted cash flow method. Both the reports prepared by the City Group and Taseer Hadi from whom the bidders got prepared the report had calculated the discounted cash flow from 2006 onward without having regard to the fact that after restructuring in the year 2002-03 the PSMC did increase its profitability and the P.C. while publishing the notices for Expression of Interest in the newspapers had shown the statement of positive financial condition. The crux whereof is that in the fiscal year 2004-2005, PSMC had recorded annual sales of over Rs.30.00 billion and net profit of Rs.6.00 billion. It is equally important to note that after restructuring, the liquidity of the Corporation improved and it paid off principal amount of debt of Rs. 11.35 billion on 30th June 2003. Therefore under these circumstances it was incumbent upon the Privatization Commission to have taken care about these facts and these must have been mentioned categorically in the Terms of Reference framed for the Financial Advisor that the Mill is ongoing profitable concern and it has marketable assets and the liabilities are much less than the assets, therefore, keeping in view these facts any internationally acceptable methodology for calculating its shares may be adopted. At this juncture it is important to note that according to the report of PSMC 10% equity offer will be made to the private sector meaning thereby enlisting its shares on the Stock Exchange for the purpose of ascertaining correct value in order to achieve the object for which in terms of the Ordinance the privatization was to take place.
It is equally important to note at this stage that this procedure could have been more appropriate, accurate and acceptable to the seller i.e. the Government of Pakistan in view of its experience in respect of privatization of 23.2 percent government owned shares of the National Bank of Pakistan and to follow this procedure there was no difficulty to take steps for the purpose of offering 10% shares for public through Stock Exchange. In this behalf, the Privatization Commission had a precedent in respect of the case of National Bank of Pakistan which is reported as PLJ 2004 Central Statutes 259, the following paragraphs are relevant to discussion:-
"NBP was the first SOE whose shares were offered by means of an Offer for Sale to the general public. The Cabinet Committee on Privatization (CCOP) decided to offer 5% (18,652,000) shares of NBP with a green shoe option of an additional 5% shares in case of over-subscription Shares of NBP were listed on the Karachi, Lahore and Islamabad Stock Exchanges and subscription for the shares was held during 19-22 November 2001. Since it was an initial offering, shares were offered at par value (Rs. 10/- per share) to attract small investors. The offering was heavily over-subscribed and applications for an amount of Rs.1.04 billion were received against the required amount of Rs.186.5 million (for 5% shares). Thus Government exercised the green shoe option and divested 37,304,000 shares for gross proceeds of Rs.373 million.
In October 2002, it was decided to divest an additional 5% (18,652,000) shares of NBP through a secondary public offering at the Stock Exchanges with a green shoe option of additional 5% shares. Taking the market price of NBP share as a benchmark, the CCOP fixed the offer price as Rs.21/- per share. Subscription for the shares was held during 07-09 October, 2002. This offer was also heavily oversubscribed and applications were received for an amount of Rs.1.63 billion against the target amount of Rs.391.7 million (for 5% shares). The Government chose to exercise the green shoe option and realized proceeds of Rs.783.3 million.
To take advantage of the bullish market and excess liquidity available with investors, it was decided in June 2003 to offer additional shares through a third public offering. However, on this occasion the offer size was restricted to 3.2% (13.131 million) of the outstanding shares in order to keep the Government's shareholding above 75%. Again using the market price as a benchmark, shares were offered at the price Rs.46/- per share and subscription as held during 13-15 October 2003. The offer was oversubscribed and funds received amounted to Rs.1.22 billion against the required amount of Rs.604 million.
Through the above process, The Government has divested 23.2% (87.7 million) shares of NBP for total proceeds of Rs.1.76 billion.
As the divested shares were owned by the Government through State Bank of Pakistan ('SBP'), the Privatization Commission remitted the proceeds for the first two offerings to SBP in early 2002 and early 2003. Sale proceeds for the 3rd offering have also been remitted to SBP on January 14, 2004. The transaction stands successfully completed on January 14, 2004."
It is in our knowledge that the shares of the National Bank of Pakistan were already listed on the Stock Exchange but there was no harm in even taking steps and adopting measures for the purpose of enhancing the value of the shares of the PSMC by adopting the same procedure and bringing its limited shares on the Stock Exchange as the Government had already decided to sell its 10% equity to the public. And if for this purpose, some legal formalities were required to be taken, the same ought to have been resorted to.
"3.2.6. Final Valuation Model
The final valuation model will be used to determine the Reserve Price for the bidding process. The FA is expected to present the valuation model to explain and discuss the underlying assumptions and workings at various forums within the Government to obtain approval of the Reserve Price. The final valuation report shall be submitted at least six weeks prior to the bidding date."
For reasons best known to the F.A. and which have not been explained either in the written statement filed by the counsel for the P.C. or by the counsel for the Federal Government the final report was submitted to the P.C. on 30th March 2006, the date P.C. sent a summary to the C.C.O.P. regarding approval of the reference price. The requirement of six weeks was mandatory as after submission of the valuation report the P.C. is required to examine it at its own level so as to fix a fair reference price for approval by the C.C.O.P. This belated submission just 24 hours before the bidding date on the one hand deprived the PC to assess the report independently and the CCOP of a well considered and independent comment on the said report on the other hand.
The argument of Mr. Abdul Hafeez Pirzada, learned Sr. ASC that the interim report submitted on 28th October 2005 meets the requirement of Regulation is not tenable because requirement under Para 3.2.6. is that of "FINAL REPORT" and not the interim report and secondly the lapse of "half a year" may have changed the objective conditions and thirdly it is not the case of PC that the interim report was considered at the time of fixing the reference price.
This brings us to the question as to whether decision taken by the Cabinet Committee (CCOP) on 31.03.2006 for sale in favour of anybody offering more than the reference price of the share i.e. Rs. 16.18 is valid.
Unmindful of the codal violation (violation of para 3.2.6. of the Terms of Reference sent to the valuer) and of the qualitative infirmity, the PC carried out the exercise of preparing a summary for approval of the reference price by the CCOP the same day. According to the written statement filed by Mr. Zahid Hameed Consultant P.C., during course of hearing, on 30.03.2006 the Board of Privatization Commission convened and deliberated on the privatization of PSMC for 4-5 hours. During this meeting the Managing Director of the F.A. Mr. Joz Garza who had already flown in from U.K. came and presented salient features of the valuation report to the members of the Board. The meeting according to him was held in the afternoon of the afore-referred date. The summary prepared by P.C. and submitted to the CCOP on 31.03.2006 reads as under:-
"The Financial Advisors, Citigroup Global Markets Limited (FA) has conducted the valuation of Pakistan Steel mills Corporation (PSMC) using three standard valuation methodologies used in global M&A transactions. These include:
(a) Discounted Free Cash Flow Analysis (DCF)
(b) Public Multiple Analysis (comparable companies).
(c) Precedent Transaction Analysis.
On the basis of DCF approach, the valuation ranges between US$ 407-464 Million. The weighted average cost of capital assumed for discounting the free cash flows to the firm is 12%.
Using Public multiple Analysis, the valuation ranges between US$307-406 Million.
On the basis of Precedents Transaction Analysis, the valuation ranges between US$ 389-501 Million.
The FA has recommended a value of US$ 375 Million (on 100% equity basis). This recommendation is on the basis of average of above three valuation methodologies with a 10% discount as bidders are not expected to pay full fair value.
The PC Board considerd the valuation as recommended by the FA and proposed that the current market value of total assets of PSMC may also be taken into account. Valuation recommended by the FA reflects the core operations of PSMC (i.e., excluding surplus land and assets) and therefore, is based on PSMC as a going concern. The non-core land and assets being unbundled from PSMC includes Steel Town and Gulshan-e-Hadeed land which have been evaluated at US$ 500 Million by Nanjee & Co Karachi. The replacement value of the plant is estimated at around US$500 Million. These estimates do not include the current market value of Downstream Industries land and land reserved for NIP (this segment includes approximately 5,000 acres). Adding up these elements the value of PSMC comes in excess of US$ 1.0 Billion.
The Board of Privatization Commission considered the valuation carried out by the FA as well as the replacement cost of the plant and recommended total value of PSMC at US$ 500 Million. Based on this, the Reference price for 75% strategic stake would be US$ 375 Million i.e. Rs. 17.43 per share calculated at the rate of Rs. 60 per US$ (total shares being divested are 1,290,487,275).
It is proposed that the Privatization Commission may be authorized to issue Letter of Acceptance (LoA) to the Successful Bidder if their per share price is equal or higher than the Reference Price approved by the CCOP.
The Cabinet Committee on Privatization (CCOP) is requested to approve the proposals made in para 7 and 8 above.
The Minister of the Privatization and Investment has seen and authorized the submission of this summary to CCOP."
The C.C.O.P. on examining the above summary recorded its minutes and the decision on 31.03.2006 as follows:-
"MINUTES--Privatization Division informed the CCOP that the Financial Advisor (FA) of Pakistan Steel Mills Corporation (PSMC) has recommended a valuation of US$ 375 million for privatization of PSMC on 100% equity basis. The FA of PSMC is Citigroup Global Markets Limited.
(i) Discounted Free Cash Flow Analysis (DCF) valuation ranges between US$ 407-464 million with weighted average cost of capital assumed for discounting at the rate of 12%.
(ii) Public Multiple Analysis (comparable companies) valuation ranges between US$ 307-406 million.
(iii) Precedents Transaction Analysis valuation ranges between US$ 389-501 million.
CCOP was informed that the Board of Privatization Commission has recommended a total value of US$ 500 million for 100% equity stake of PSMC. According to this, the Reference Price for 75% equity stake (1,290,487,275 shares) works out to US$ 375 million i.e. Rs. 17.43 per share (calculated at the rate of Rs. 60 per US$).
Privatization Division briefed the CCOP that the Board of Privatization Commission considered the valuation as recommended by the FA and proposed that the current market value of total assets of PSMC may also be taken into account. PC Board observed that the valuation recommended by the FA reflects the core operations of PSMC (i.e. excluding surplus land and assets) and therefore, is based on PSMC as a going concern. The non-core land and assets being unbundled from PSMC includes Steel Town and Gulshan-e-Hadeed land which have been evaluated at US$ 500 million by the evaluators. The replacement value of the plant is estimated at around US$ 500 million. These estimate do not include the current market value of Downstream Industries and land reserved for NIP (this segment includes approx 5,000 acres). Adding up these elements the value of PSMC comes in excess of US$ 1.0 billion.
It was acknowledged that DCF is the most acceptable methodology for valuation of on-going units.
Privatization Division briefed the CCOP on the profiles of the prospective bidders, also.
CCOP observed that Privatization Division has not amplified their viewpoint in the summary in detail. Privatization Division clarified that the viewpoints of FA, Board of Privatization, as well as, the Privatization Division have been covered in its overall context in the summary.
On the question of payment of VSS to the employees of PSMC, the CCOP was informed that the entire liability on this account would be borne by the GoP.
DECISION
The Cabinet Committee on Privatization (CCOP) considered the summary dated 30th March, 2006, submitted by the Privatization & Investment Division on "Privatization of Pakistan Steel Mills Corporation" and approved the valuation of US$ 464 million based on DCF valuation for privatization of the Pakistan Steel Mills Corporation Limited (PSMC) for its 100% equity stake. On the basis of above, 75% equity stake (1,290,487,275 shares) works out to US$ 348 million i.e. Rs. 16.18 per share.
II. The CCOP also approved the proposal contained in para 8 of the summary to issue Letter of Acceptance (LoA) to the Successful Bidder if their per share price is equal or higher than the Reference Price mentioned in sub-para I above.
III. The CCOP directed the Privatization Division to follow the approved policy for Privatization, strictly in letter and spirit. Any deviation from the approved Policy, if deemed necessary, should be brought up to the CCOP well in advance for consideration and approval of waiver, if any.
IV. The CCOP directed the Privatization Division to impress upon the potential buyer to make the entire payment of the transaction to the GoP within the period stipulated in the bid documents.
V. The CCOP directed the Privatization Division to invariably add their viewpoint(s) recommendations explicitly in their summaries, in future."
The above decision of the CCOP not only reflects disregard of the mandatory rules but also all material which was essential for arriving at a fair reference price. Because firstly determining the reference price for approval of the CCOP is a separate exercise to be carried out in terms of rule 6 of the Privatization Commission (Valuation of Property) Rules 2001 whereas the approval of the highest bidder is a separate exercise undertaken under the Privatization (Modes & Procedure) Rules, 2001. Rule 4(2) of these rules mandates that, "Upon selection of a highest ranked bidder as specified in sub-rule (1) the Board shall refer the matter for approval, or rejection of such highest ranked bidder with full justification, to the Cabinet". While approving the summary the Cabinet Committee totally ignored rule 4 of the Privatization (Modes & Procedure) Rules, 2001, referred to above and instead abdicated its authority to the Privatization Commission to issue Letter of Acceptance to whoever is the highest bidder. Secondly the Cabinet Committee totally ignored the proposal of the Board of Privatization Commission that the net assets should also be included while valuing the project. Thirdly the decision that the Government of Pakistan shall bear the liability of the entire VSS of the employees of the PSMC was neither part of the summary submitted by the Privatization Commission nor was it included in the initial public offering given to the bidders through advertisement. Fourthly notwithstanding the proposal of the Board of Privatization Commission to value the share of PSMC at the rate of Rs.17.43 it reduced it to Rs. 16.18 without assigning any good reason whatsoever. This is violative of section 24-A of the General Clauses Act of 1997 as interpreted by this Court in M/s Airport Support Services v. Area Manager Quaid-i-Azam International Airport Karachi (1998 SCMR 2268). There is no cavil to the proposition that when the law entrusts a power to an authority it has to be exercised by the said authority and this Court may not substitute its opinion with that of the said authority. But if the decision of the authority betrays total disregard of the rules and the relevant material, then the said decision fails the test of reasonableness laid down by the Constitutional Courts for the exercise of the power of judicial review. Faced with such a situation a Constitutional Court would be failing in its Constitutional duty if it does not interfere to rectify the wrong more so when valuable assets of the nation are at stake.
The last question framed pertains to the question of divergence in the initial public offering to the successful bidders and the final terms/conditions offered to the highest bidder (on 31.03.2006) and whether these were in accord with the terms and conditions of public offering given through advertisement dated 16.09.2005.
For a better appreciation of the issue under consideration it would be in order if the terms offered in the advertisement are kept in view. The advertisement dated 16.09.2005 reads as under:-
"The Transaction:
The Privatization Commission ("PC") intends to sell as 51-74% equity stake in Pakistan Steel Mills Corporation (Pvt) Ltd. (PSMC or the Company), together with management control; to a qualified strategic investor on an "as is, where is" basis. A consortium led by Citigroup Global Markets Limited is advising the PC on the sale.
Expression of Interest
Investors interested in joining the process are requested to submit an Expression of Interest (EOI), at the earliest. EOIs should clearly provide the following information:
. Name of company/group and its background information
. Audited financial statements for the preceding three years.
. Details of ownership/group structure.
Upon receiving the EOIs and processing fee, Request for Statement of Qualification (RSOQ) will be dispatched to the interested investors immediately. EOIs should be submitted (in duplicate) together with a non-refundable processing fee of US$ 5,000/- or Pkr 300,000/- payable in the form of a bank draft favouring 'Privatisation Commission, Government of Pakistan'. EOIs and the bank drafts should reach the Director General (I&T), PC at the given address by 8th October, 2005.
The Company
PSMC is the country's largest and only integrated steel manufacturing plant with an annual designed production capacity of 1.1 million tons. It was incorporated as a private limited company in 1968 and commenced full scale commercial operations in 1984. PSMC complex includes coke oven batteries, billet mill, hot and cold rolling mills, galvanizing unit and 165 MW of own power generation units, supported by various other ancillary units. It is located 30km south east of the coastal city of Karachi, in close proximity to Port Bin Qasim, with access to a dedicated jetty, which facilitates import of raw materials. PSMC manufactures a wide mix of products, which includes both flat and long products. PSMC effectively enjoys a captive domestic market due to the prevalent demand-supply imbalance in the country's steel industry, where demand has historically exceeded local supply. PSMC also strives to maintain high quality and environmental standards and in this regard has received ISO 9001, ISO 1400-1 and SA 8000 certifications, along with the Environmental Excellence Award 2005.
PSMC's brief financial summary is as follows:
Financial Summary
(Pkr million) FY02 FY03 FY04 FY05
Net Sales 14,286 22,084 24,778 30,452
Operating Profit 4 2.275 6.666 9.761
Net Income 102 1,024 4,852 6,008
Total Assets 30,151 23,669 30,935 36.687
Equity 8,544 9,568 14,420 20,419
(1) Provisional
As a result of sustained improvement in Pakistan's macroeconomic environment, the demand for steel in the country is expected to grow substantially. PSMC is uniquely positioned to take advantage of the expected demand growth as adequate infrastructure is already in place to cater to capacity expansion.
Preliminary information on PSMC is available on the following websites:
www.paksteel.com and www.privatization.gov.pk."
A bare reading of the afore-referred advertisement would show that the Privatization Commission had invited Expression of Interest from strategic investors for the privatization of PSMC and the salient features of the public offering were mainly two:-
(i) Sale of 51 to 74% equity stake (it was increased to 75% by way of corrigendum) of PSMC.
(ii) The sale carried with it the transfer of management control to strategic investors on and "as is" "where is" basis.
There was no break up of the land which was to be sold to the strategic investors along with PSMC. There was no undertaking that the liability of VSS (up to Rs.15.00 billion) would be borne by the seller. There was no commitment that loans (about Rs. 7.67 billion) would be cleared before the Sale Purchase Agreement is signed. These concessions which had been offered after the acceptance of the bid were rather huge. The liability of VSS it was admitted before this Court by the counsel for Federation and counsel for the Steel Mills would amount to Rs.15.00 billion. The loan liability which was to be cleared by the Government of Pakistan amounted to Rs.7.67 billion and this was payable immediately even though the due date was June 2013, onwards.
Similarly valuable core land part of which had not been transferred to the PSMC had to be transferred to it without which it was stipulated in the agreement that the agreement shall not be complete (Clause 4.2 of the agreement). The value of inventories it was admitted before the Court was not less than 12.00 billion. Similarly the refund of Rs. 1.00 billion excess tax which shall now be received by the bidder if he is allowed to operate after issuing the letter of acceptance in this manner minus the price of land the bidder shall be having benefit of Rs. 12.451 billion (Inventories of raw material etc as per Statement of Net Assets dated 31st March 2006) + Rs. 8.517 billion (cash in hand as per Statement of Net Assets dated 31st March 2006) + Rs. 1.00 billion (refund of Rs. 1.00 billion tax as per report 2006) = Rs. 21.968 Billion. When Mr. Wasim Sajjad counsel was confronted with the afore-referred figures and asked what is the net benefit of the sale he replied that the cost of the land which is being unbundled amounts to Rs.70.00 billion and this according to him would be the ultimate gain. This argument ignores the reality that land always belonged to Government of Pakistan and could be unbundled, even without privatization. Similarly Mr. Abdul Hafeez Pirzada, learned Sr. ASC said that as the Government of Pakistan is disbursing the loans which were due in 2013 therefore the amount of mark up (existing) which would come to about Rs. 6.00 billion shall be saved in this manner. We asked him as to whether the amount of the interest would have not been paid if the mill remains in operation and has shown profit as it has started making the improvement in its performance from the year 2000 to 2003, he could not answer satisfactorily. It may also be noted that besides the above profit the bidder will also be entitled to get another profit if the employees opt for VSS then the liability of Rs.15.00 billion shall be paid by the Government of Pakistan. On our enquiry during the hearing, it was informed by the Director Operations that up till now more than 2000 employees have applied for VSS Scheme.
This transaction is outcome of a process reflecting serious violation of law and gross irregularities with regard to sale of the first and the biggest steel mill that this country has. From the facts admitted before us, even the procedural irregularities are not disputed. It has been argued by Mr. Abdul Hafeez Pirzada that rule 4(2) of the Privatization Commission (Modes & Procedure) Rules 2001 has been satisfactorily applied even though it was conceded that the name of the highest bidder was neither before the CCOP nor approved. The fact is that even the bidding took place after CCOP decision dated 31.03.2006. He obliquely suggested that in any case the CCOP knew the names of the bidders. If this be correct, how could the CCOP import its behind the scene knowledge into decision making and that also without noting it. Learned Attorney General argued somewhat on the similar lines even though he admitted that PC and CCOP have adopted somewhat "convoluted" procedure.
In our judgment rule 4 is couched in absolute language which requires full compliance. The rule has a wisdom behind it when it says that the CCOP will approve the name of the highest ranked bidder and not the highest bid. To us the wisdom in requiring approval of the highest bidder rather than the highest bid is that the Cabinet/CCOP will also have to keep in view the considerations not purely economic in approving or not approving the names of the highest bidder. As mandatory and absolute requirement of Rule 4 has not been met, in our considered view this alone is sufficient to invalidate the Letter of Acceptance and the Share Purchase Agreement based on it.
Learned Attorney General stated that the Courts are not supposed to substitute their own opinion with that of the authority under the law unless it is shown that the action is not sustainable being unreasonable. He relied upon Associated Provincial Picture Houses ibid and Nottinghamshire County Council ibid.
We have considered learned Attorney General's contention and have gone through the precedent case law. The case law would have been relevant if the public functionaries had not committed violation of the rules, noted above. Question of reasonableness would be relevant if the transaction/action was otherwise in accordance with law/rules.
Besides it has been noted by us with concern that the whole exercise reflected indecent haste by P.C. as well as C.C.O.P. in that on 30th of March 2006 the final report of the F.A is received, the officials of the PC process the same on the same day, the meeting of the Board of Privatization Commission also takes place the same day and the summary is prepared the same day. The very next day i.e. 31st of March 2006, the CCOP meets, considers the summary, fixes a reference price and authorizes the P.C. to approve the highest bid. Even the Managing Director of the FA had already flown a day earlier to make presentation. During lengthy hearing spread over almost three weeks, no counsel much less Mr. Abdul Hafeez Pirzada learned Sr. ASC for Federation could offer any explanation for the haste in finalizing the process of the privatization. Apart from the illegality noted above viz complete violation of Rule 4, this unexplained haste casts reasonable doubt on the transparency of the whole exercise.
It has been argued by the learned Attorney General that as no consequences of non-compliance of rule 4 have been provided in the Rules, the same be held as directory and not mandatory. For this purpose he relied on Maulana Noor ul Haq v. Ibrahim Khalil (PLJ 2001 SC 380). Non provision of consequence is one of the tests to determine the "directory" or "mandatory" nature of a statutory provision. The whole purpose of legislation is also to be kept in view to determine whether the duty cast is of absolute nature or of directory nature. We have already explained that the rule creates a distinction between the bid and the bidder and obliges the CCOP to approve the highest ranked bidder and not the bid. The language employed is mandatory in nature. Therefore, we repel the argument that the rule is "directory" in nature and having been substantially complied with the Court should condone the twisted or as he put it "convoluted" procedure. Reference made by him on Messrs Nishtar Mills Limited v. Superintendent of Central Excise Circle II (PLD 1989 SC 222) is not apt under the circumstances.
As far as the argument of the learned Attorney General that as making fresh reference to the CCOP for reconsideration may result in reiteration of the earlier decision, therefore, the Court should not strike down the decision on this ground is concerned, it is clear that we are not striking down the action on this ground alone as the contents of this judgment reveal. The argument, therefore, has no merit. In any case reaffirmation of the decision after compliance with law, would demonstrate the supremacy of law.
The process of pre-qualification of potential bidders is an important limb of privatization process as it is the declared motto of the Privatization Commission (as manifested on the first page of the Annual Report 2004) that "Privatization in an open, fair and transparent manner, for the benefit of the people of Pakistan, in the right way, to the right people, at the right price". To ensure that only "sound bidders with adequate experience and sound track record of corporate governance participate in the bidding process" the PC issued elaborate set of conditions in October 2005 containing conditions of eligibility and disqualification for pre-qualification with nomenclature titled as, "Request for Statement of Qualification. Pakistan Steel Mills Corporation Limited October 2005". The definition clause defines, inter alia, consortium, due date and lead bidder. The due date for submission of seeking pre-qualification was 29th October 2005. Condition 2.1 lays down the eligibility requirements sub paras of which are relevant for the instant case:
(a) the Potential Bidder, and if the Potential Bidder is a Consortium the Lead Bidder, must be a company or a body corporate, whether incorporated in Pakistan or abroad (refer to Section 3.5).
(b) ...............
(c) if the Potential Bidder is a Consortium there must be a Lead Bidder (refer to Section 3.5(b) who is duly authorized (to the satisfaction of the Commission) by all other Consortium members to act on their behalf. After the submission of the SOQ, the Consortium members shall not be changed (both in respect of the percentage of the Equity Stake specified in Section 3.5 (b) below and any addition or deletion in the composition of the Consortium), unless the Commission consents to the same, in its sole discretion, not later than thirty (30) days prior to the proposed date of bidding.
(d) ..............
(e) the Potential Bidder, and in the event the Potential Bidder is a Consortium each Consortium member, must demonstrate a track record of sound corporate performance and governance.
(f) ................
(g) the acquisition of the Equity Stake by the Potential Bidder (or where the Potential Bidder is a Consortium, any part of the Equity Stake by any member of the Consortium) should not be in violation of the laws of Pakistan."
Condition 2.2 spells out the basis for disqualification some paras of which would be relevant, those are as follows:-
"(a) ............
(b) ............
(c) ............
(d) ............
(e) has a track record of corporate behaviour evidencing any willful defaults on any of its obligations to any bank or financial institution in or outside Pakistan or is currently in default of its payment obligations to any bank or financial institution;
(f) .............
(g) .............
(h) ...............
(i) .................
(j) is involved in any litigtion, arbitration or any other dispute or event which may have a material adverse effect on its ability to acquire the Equity Stake or to manage PSMC after completion of the acquisition of the Equity Stake.
(k) ............
(l) ..............
(m) ..............
(n) .............."
(i) Aljomaih Holding Company (Saudi Arabia).
(ii) Al-Tuwairqi Group (Saudi Arabia) and Arif Habib Group (Pakistan).
(iii) Azovstal Steel/System Capital Management (Ukraine).
(iv) Government of Ras Al Khaimah (UAE).
(v) International Industries Ltd (Pakistan) and Industrial Union of Donbass (Ukraine).
(vi) Magnitogorsk Iron & Steel Works Open JSC (Russia).
(vii) Nishat Mills Ltd. and D.G. Khan Cement Co. Ltd (Pakistan).
(viii) Noor Financial Investment Co. (Kuwait).
(ix) Shanghai Baosteel Group Corporation (China).
At Sr. No.2 of the above eligible parties, Arif Habib and Al-Tuwairqi Group formed a consortium from the very beginning. The due date for constitution of consortium as given in the Request for Statement of Qualification was 29th October 2005. The Consortium which ultimately participated in the bidding process on 31.03.2006 consisted of the following:--
(i) M/s Arif Habib Group of Companies.
(ii) M/s Al-Tuwairqi Group of Companies.
(iii) M/s Magnitogorsk Iron and Steel Works, Russia
Admittedly this Consortium had not applied within the afore-referred due date and their qualification as Consortium had not undergone the test of scrutiny. This aspect has assumed importance for two reasons: firstly because during the course of hearing of C.M.A. No. 1190 of 2006 filed by Iftikhar Shafi levelling serious allegations which remained uncontroverted and this factual position has also been admitted by counsel for Mr. Arif Habib during the hearing at the Bar, with regard to his qualification to participate in the bidding process falling within the mischief of Condition (i) and (ii) of the Basis of Disqualification (reproduced ibid). The conditions for qualification required that change can be brought about in the consortium "not later than 30 days" prior to the proposed date of bidding (Para 2.1 of the Request for Statement of Qualification). In the instant case even if there was a valid sanction order for the creation of the Consortium on 22.03.2006 this change in the composition of the bidding party was hit by the afore-referred condition.
(i) FIR No. 55/2003 dated 26.05.2003 under sections 342, 386/ 409 and 506 of Pakistan Penal Code at PS Lahore.
(ii) Suit No. 481/2003 for the recovery of Rs.5600611760 in Sindh High Court filed by Iftikhar Shafi against Arif Habib/Ms Arif Habib Securities Ltd.
(iii) Suit No.639/2003 for the recovery of Rs.1701035843 in Sindh High Court filed by M/s Shafi Chemicals against Arif Habib and M/s Arif Habib Securities Ltd.
(iv) Suit No.480/2003 for the recovery of Rs.10989948199 in the Sindh High Court Karachi, filed by M/s Diamond Industries Ltd against Arif Habib and M/s Arif Habib Securities Ltd.
(v) Representation dated 5 April 2002 filed before SECP and pending against Arif Habib.
(vi) Representation to the President of Pakistan against Arif Habib.
(vii) Representation to the Prime Minister of Pakistan against Arif Habib.
(viii) Arbitration proceedings notified by the Chief Minister Punjab and still pending.
(ix) Proceedings of the inquiry Committee reports on the affairs of Karachi Stock Exchange and Lahore Stock Exchange dated 31st August 2000 and 14th June 2002."
Copies of the afore-referred F.I.R and the civil suits were appended with C.M.A. No. 1190 of 2006 which indicate that in the F.I.R., he was the principal accused and the allegations were that through his manipulation the stock exchange crashed leading to enormous losses to the small investors running into billions. In the civil suits the allegations are that the respondent Arif Habib and others manipulated the stock market and thereby caused losses. Learned counsel placed on record a copy of the report of four member Task Force headed by Mr. Justice Saleem Akhtar (a retired Judge of the Supreme Court of Pakistan) against certain individuals. In the report on different occasions the Commission had made observations about the corporate behaviour of Mr. Arif Habib. It may be noted that at the time of the crash of the Karachi Stock Exchange (K.S.E.) Mr. Arif Habib was President of the KSE as well as one of its major brokers. One of the following paras from the Task Force report would reflect about the corporate behaviour of Mr. Arif Habib:-
"In these circumstances, the role of Badla financing in whetting investor appetite needs to be understood. Badla financing which grew markedly during this period, provided financing to investors who lacked liquidity to purchase in the ready market, albeit at high interest rate. Investors were willing to borrow at exorbitant Badla rates (which were capped at 18% in KSE but rose in the uncapped LSE to over 100%) because the accelerated rise in stock prices made such expensive borrowing feasible. The growing availability of Badla financing from lenders, who were largely brokers and institutions added to the buying frenzy in the ready market, raising stock prices on a daily basis and further amplifying expectations in the futures market. It may be noted that some of the major Badla providers were the same people who were selling the future market, and thus benefiting from the heightened expectations of price rises in the future. In other words, there was a strong nexus between lenders and brokers/investors who could influence market sentiment to their own advantage.
The major brokers representing financiers of Badla on February 28, 2005 and some of the largest net sellers in the March Futures were:-
Badla Providers 28th Amount (Rs. Million)
February 2005
Arif Habib Securities 4,622
Aqeel Akarim Dedhi 4,233
It is equally significant to note here that in reply to C.M.A. filed on behalf of Iftikhar Shafi it was admitted on behalf of Arif Habib that, "it may be mentioned that the existence of these suits has been expressly stated in the annual accounts of Arif Habib Securities Limited, which is a public document and it was also filed with the Privatization Commission." This statement in the pleadings on behalf of Arif Habib goes to substantiate without any doubt that his involvement in litigation was in the knowledge of the Privatization Commission. Thus, it had a duty to have applied mind before declaring him qualified to be one of the members of the consortium because we are of the opinion that a person who is involved in litigation in respect of the matter which pertains to a corporate body like K.S.E., etc, and against whom a report publicly has also been issued by the Task Force could not be considered a person who could, prima facie, handle the affairs of the Pakistan Steel Mills transparently. Thus, his involvement in the litigation as well as the corporate behaviour as is evident from the Task Force Report could have disqualified him under Para 2.2(j) of the RSOQ. Apparently this aspect seems to have been ignored by the Privatization Commission. We are conscious of the fact that the observations being made herein are not conclusive and can only be used for the purposes of the present litigation in view of the principle laid down by this Court in the case of Mohtarma Benazir Bhutto ibid (PLD 2000 SC 77).
This Court would not like to comment on the veracity of the allegations levelled either in the application, in the F.I.R., the civil suits filed or the report of the Enquiry Commission lest it may prejudice the case of either side before appropriate forums/courts. However, for the purposes of qualification as a potential bidder, the disqualification condition stipulates that a potential bidder would be disqualified to participate in the bidding process if, "he is involved in litigation, arbitration or any other dispute or event which may have material adverse effect on its ability to acquire the Equity Stake or to manage PSMC after completion of the acquisition of the Equity Stake." It is surprising that although the afore-referred allegations are a matter of record and have not been controverted either by respondent Mr. Arif Habib or by the Privatization Commission yet he was cleared of the qualification process and was allowed to participate.
After bidding the consortium consisting of (i) M/s Magnitogorsk Iron & Steel Works (ii) M/s Al-Tuwairqi Group of Companies and (iii) M/s Arif Habib Group of Companies was declared successful and Letter of Acceptance dated 31.03.2006 issued. But surprisingly agreement dated 24.04.2006 was executed between the:--
(i) President of Islamic Republic of Pakistan through the Ministry of Privatization and Investment (the "Seller") and
(ii) the Privatization Commission, established under the Privatization Commission Ordinance, 2000 (Ordinance LII of 2000), having its principal office located at 5-A Constitution Avenue, Islamabad, hereinafter referred to as the "Commission". and
(iii) PSMC SPV (Mauritius) Limited a company incorporated and existing under the laws of Mauritius as joint venture company having its registered office at Suite 450, 4th Floor, Barkly Wharf East, Le Caudan Waterfront, Port Louis, Mauritius and the existing and paid up capital of which is owned entirely by ATG Holdings and MMK Holdings in equal shares ("PSMC Mauritius") and
(iv) Arif Habib Securities Limited a company incorporated and existing under the laws of Pakistan and having its registered office at 60-63 Karachi Stock Exchange Building, Stock Exchange Road, Karachi Pakistan ("AHSL") and
(v) Arif Habib son of Habib Haji Shakoor, resident of 86/11 10th Street, Khayaban-e- Sehr Phase VI, DHA Phase NIC No.42301-1015651-1 ("AH") (AHSL and AH forming "AHG" as defined below.
Following parties stood as guarantors for the purchasers named above:-
(i) ATG Holdings Mauritius Limited, a company incorporated and existing under the laws of Mauritius a wholly owned subsidiary of ISPC whose registered office is at Suite 450, 4th Floor, Barkly Wharf East, Le Caudan Waterfront, Port Louis, Mauritius ("ATG Holdings").
(ii) Al-Ittefaq Steel Products Company, a company incorporated and existing under the laws of the Kingdom of Saudi Arabia whose registered office is at P.O. Box 2705 Dammam-31461, Kingdom of Saudi Arabia ("ISPC").
(iii) MMK Holdings (Asia) Limited, a company incorporated and existing under the laws of Mauritius whose registered office is at Suite 450, 4th Floor, Barkly Wharf East, Le Caudan Waterfront, Port Louis, Mauritius a wholly owned subsidiary of MMK ("MMK Holdings").
(iv) Magnitogorsk Iron and Steel Works Open Stock Company, a company incorporated and existing under the laws of the Russian Federation whose registered office is at 93 Kirova Street, Magnitogorsk, Chelyabinsk Region, Russia ("MMK").
"The guarantors ATG Holdings Mauritius Limited, Al-Ittefaq Steel Products Company, MMK Holdings (Asia) Limited and Magnitogorsk Iron and Steel Works Open Stock Company do not have any place of business or office in Pakistan at the present time.
PSMC SVP (Mauritius) Limited also does not have any place of business or offices in Pakistan at the present time.
Arif Habib Securities Limited however is a public limited company duly incorporated in Pakistan having its registered office at Karachi."
It is clear that bidders are different than the purchasers. The names of the purchasers shown in the Agreement dated 24.04.2006 have not been approved by the C.C.O.P. When asked to explain the anomaly, learned counsel for successful bidder explained that the afore-referred arrangement was devised with a view to provide a corporate vehicle through which the successful bidder could exercise corporate control on P.S.M.C. He further attempted to explain that this devise was adopted to save the double taxation. We fail to understand that the Privatization Commission readily accepted the arrangement which was to the benefit of the bidders for the purpose of entering into the Sale Purchase Agreement knowing well that under the law of our country no such permission can be granted because the contract is to be entered between the seller and the purchaser as approved by the Privatization Commission Board and the CCOP in terms of Rule 4(2) of the Privatization Commission (Modes and Procedure) Rules, 2001. Further under section 10 of the Contract Act the parties have to make contract for a lawful consideration and with a lawful object which are not thereby expressly declared to be void. In view of this principle of law it is to be borne in mind that the expediencies of the bidder with regard to save their skin from double taxation could not form a valid basis for the Privatization Commission to accept such a plea for the purpose of allowing them to enter into contract through an offshore company which has been incorporated out of the country. Even otherwise, we cannot encourage such practice because if at all the bidders wanted to have any benefit of taxation they should have resorted to the municipal law of Pakistan and in this behalf if at all there was necessity they could have obtained incorporation of any other company within the territory of Pakistan having its own permanent office or business. Although we are mindful of the fact that after starting the business in Pakistan a company can open its office and can get the registration for the same purpose in terms of section 450 of the Companies Act. But if a corporate body i.e. PSMC SVP (Mauritius) Limited had got incorporation few days before entering into an agreement i.e. on 19th April 2006 in a different country coupled with the fact that this company is not a bidder, the PC should have not entered into contract in the present shape.
"We refer to your request for clarification regarding the utilization of PSMC land and future enhancement in the production capacity of PSMC.
We hereby confirm that PSMC land will only be used for purposes of the steel industry and related industrial activities and we shall not carve it out for sale or disposal for commercial or residential purposes.
We hereby confirm that immediately after the Completion Date we shall commence work on the repair and revamping of the existing facilities of PSMC in an effort to ensure sustained utilization of its designed production capacity of 1.1 MTA and thereafter shall seek an economic enhancement of its production capacity up to 1.5 MTA. It is estimated that immediately an investment of US$ 250 mm will be required for PSMC to be become economically viable. Thereafter furthr investments will be made to raise the capacity of up to 3.0 MTA."
It may be noted that at the initial stage of the hearing when the learned counsel appearing for the P.C. Syed Sharif-ud-Din Pirzada made a statement in his personal capacity that the land underneath the Mill cannot be used for any other purpose except for the purpose of running the business of the Mill, the learned counsel for the bidder did not agree but when the proceedings went on and the Court expressed its apprehension in respect of the valuation of shares without including the value of the land as has been discussed, then for the first time the above statement was filed. It is equally important to note that no assurance/guarantee was obtained earlier. The incorporation of the above letter to the effect as to how much investment would be made when for the first time this fact was also highlighted in the above letter but without making any commitment that the amount shall be invested because the language employed therein indicates that in the revamping of the existing facilities of PSMC in an effort to ensure sustained utilization of its design production capacity of 1.1MTA and thereafter shall seek enhancement of its production capacity to 1.5 MTA it is estimated that immediately an investment of U.S. $ 250 mm will be required for PSMC to become economically viable. Thereafter further investment will be made to raise the capacity to3.0 MTA. The letter in terms does not clearly suggest that this much amount shall be invested. However, the learned Attorney General as well as the counsel for the bidder stated that this letter may be read as one of the conditions of the warranty of the agreement and this may be read and treated as part of the agreement. The submission made on their behalf is not acceptable for a number of reasons: firstly the document is not the part of the original transaction; secondly during the Court proceedings such documents cannot be read as part of the agreement unless it is agreed to by the PC and when essentially this document does not bear the signatures on behalf of the PC; thirdly it is not signed by the parties who are signatories to the Share Purchase Agreement. Fourthly, it has been issued and placed on record not as a reflection of genuine transaction between the contracting parties but to allay the concerns of the Court reflected in observations made during hearing.
At this juncture it is noted that the amount which purchaser intends to spend, if the statement is considered as commitment for the sake of argument, then the same has to be examined along with the fact that equal to this amount the Government of Pakistan itself is paying to its employees i.e. Rs. 15.00 billion if they all accept VSS besides other financial benefits break-up of which has already been given in above paras. Thus, examined from this angle as well, there was no necessity to privatize the PSMC at a lesser price instead of selling it at a fair market price for achieving the objects set out for privatization.
It may be pertinent to point out here that the learned counsel appearing for the bidder was not holding the brief on behalf of the PSMC SVP (Mauritius) because power of attorney had been filed only on behalf of guarantors and Arif Habib. We may explain as to why it was enquired with regard to the investment of the amount because during the hearing impression was being created that the object of privatization is not to close the PSMC but to increase its production capacity. Therefore, the violation was also done by following the internationally acceptable principle of DCF which only deals with in respect to the future prospects of an on-going concern. It was pointed out to the learned counsel for the respondents that if the object was so, then where is the condition in the contract of Sale Purchase Agreement dated 24.04.2006 to the effect that how much money will be invested by the purchaser for enhancing its capacity. There was no answer to it and at the end of the day the above statement was filed. It is equally important to note here that there is no doubt that the Government can independently form a policy for the purpose of privatization but here in Pakistan the policies have to be framed in pursuance to the decisions of the C.C.I. The decision of C.C.I. dated 29th May 1997 explicitly provides that the object of privatization would be to retire the debts and this policy has been incorporated in the Ordinance 2000, as well. Therefore, if the P.C. wanted to sell the shares of PSMC for any other purpose i.e. to build its capacity for the purpose of catering the requirements of steel in the country then in that case they should have again approached the CCI for the purpose of modification of its policy. Thus the result could be that after framing a policy through C.C.I., privatization can take place, however, the only object should be the debt retirement and for this purpose the government may apply any such formula internationally recognized which may ensure to bring more money in the country.
In the above context the next important question is with regard to the period of holding. Admittedly, in the agreement the holding period has been fixed only three years meaning thereby that after three years there is no guarantee whether the actual purchaser would not sell the shares of this on-going concern which is an industry of a very important nature known as mother industry. But no guarantee in this behalf has been obtained. Learned counsel appearing for the PC stated that there is a clause that the shares shall not be transferred against the security of Pakistan. We quite agree with him but at the same time it has not been defined anywhere that for the purpose of ensuring the security of Pakistan what measures shall be followed if the purchaser ultimately decides to dispose of/sell the shares against the interests of Pakistan. Therefore, in this behalf a clause should have been incorporated into the agreement. As we have observed hereinabove that even the agreement dated 24th of April 2006 has not been conditionalized to safeguard the interest and it seems that it is an ordinary standard type of agreement which has been signed without looking into the pros and the cons.
In the circumstances and for above reasons, Constitution Petition No. 9 of 2006 and C.P. No. 345 of 2006 (after conversion into appeal) are allowed and C.P. No. 394 of 2006 is dismissed, all in the above terms. Parties are left to bear their own costs.
(Waseem Iqbal Butt) Order accordingly.
PLJ 2006 SC 1207 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar, Hamid Ali Mirza & Karamat Nazir Bhandari, JJ.
STATE through ADVOCATE-GENERAL SINDH--Appellant
versus
MOOSA--Respondent
Crl. A. No. 287 of 1994, decided on 6.4.2006.
(On appeal from the judgment dated 1.2.1994 of the High COurt of Sindh, Karachi, in Cr. A. No. 236/1993)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 365-A, 148, 149, 336 & 506--Constitution of Pakistan, 1973, Art. 185(3)--Kidnapping or abduction for extorting property--Conviction and sentence by trial Court--Acquittal by High Court--Appeal against--At the time of abduction clear demand of ransom for release of each abductee was made which attracted the ingredients of S. 365-A PPC--S. 365-A P.P.C expressly prescribes that even demand of ransom amount is sufficient to bring case in its ambit--Held: Impugned judgment is not only perverse, arbitrary but based on misreading, non-appreciation of evidence and contrary to record--Appeal allowed. [P. 1210] A, B & C
Dr. Kazi Khalid, Addl. A.G. Sindh for Appellant.
Mr. Ghulam Nabi Soomro, ASC for Respondent.
Date of hearing : 6.4.2006.
Judgment
Abdul Hameed Dogar, J.--This appeal by leave of this Court is directed against the judgment dated 1.12.1994 passed by learned single Judge of High Court of Sindh, Karachi, whereby Criminal Appeal No. 236 of 1993 filed by respondent was allowed and he was acquitted.
Briefly, stated the case of prosecution is that on 21.6.1993 complainant Hakim Ali lodged FIR No. 17 under Sections 365-A, 148, 149, 336, 506 PPC and Section 13(d) of Arms Ordinance at Police Station Tharoo Shah alleging therein that on 20.5.1992 he alongwith Munawar Din, Barkat Ali, Khalid Hussain, Mumtaz, Ghulam Shabbir and Muhammad Qasim were working at the "Dera" of wheat crop in land of Muhammad Acharin deh, Darbello Tualka Kandiaro, District Naushahro Feroze when dacoits namely, appellant Mooso, accused Wahid Bux, Noor Ahmed, Jaro, Suleman, Mohabat, Mutalib, Shabir, Ghulam Sarwar, Ali Hassan, Mukhtiar Ahmed, Niaz Hussain, Nabun, Paroo, Mohikum and Budho came there alongwith 8/10 unidentified persons, duly armed with deadly weapons like Kalashnikovs, rifles and guns. They while firing in the air threatened the PWs to sit there and abducted Khalid Hussain, Munawar Din and Barkat Ali. While leaving that place, they told the remaining persons that each of the three abductees would be released on payment of Rs. 2,00,000/- as ransom. Thereafter, two abductees, namely, Barkat Ali and Munawar Din were got released whereas third abductee, namely, Khalid Hussain was killed by the dacoits as he was trying to escape from the clutches of the dacoits.
After usual investigation respondent Moosa was arrested on 29.10.1992 and sent up to face trial before Judge Special Court (Suppression of Terrorist Activities), Sukkur Division, Hyderabad Division and Nawabshah.
Prosecution in order to prove its case, examined (PW-1) Hakim Ali, (PW-2) Muhammad Saddik, (PW-3) Mumtaz, (PW-4) Munawaruddin, (PW-5) Barkat Ali, (PW-6) Anwar Ali and (PW-7) Ahmad Din, S.I.
In his statement recorded under Section 342 Cr.P.C. respondent denied the case of prosecution and claimed false implication. He neither examined himself on Oath as required under Section 340(2) Cr.P.C. nor led any evidence in his defence.
On the conclusion of trial, respondent Mooso was convicted and sentenced under Section 365-A PPC to imprisonment for life. However, benefit of Section 382-B PPC was extended to him.
Feeling aggrieved, respondent filed Criminal Appeal No. 236 of 1993 before learned High Court which was allowed and he was acquitted vide impugned judgment.
Leave to appeal was granted by this Court on 27.6.1994 to reappraise the evidence brought on the record. To secure the attendance of respondent bailable warrant in the sum of Rs. 50,000/- with one surety was issued against him.
We have heard Dr. Kazi Khalid Ali, Additional A.G Sindh for State and Mr. Ghulam Nabi Soomro, learned counsel for respondent and have gone through the record and proceedings of the case in minute particulars.
Learned counsel appearing on behalf of appellant vehemently contended that learned High Court erred in acquitting the respondent on the ground that there was nothing on record to show that ransom was either demanded or paid. According to him, though there was no evidence about payment of ransom but there was sufficient evidence on record that ransom was demanded by the respondent. It was also contended two kidnappee namely, Munawaruddin and Barkat Ali who were got released in the encounter between law enforcing agencies and dacoits have supported the prosecution version and the ingredients of Section 365-A PPC are fully attracted in the instant case. He further contended that impugned judgment of the learned High Court being erroneous, perverse and capricious on facts and law is liable to be set aside and that of the trial Court be restored.
On the other hand learned counsel on behalf of the respondent controverted the above contentions and supported the impugned judgment and contended that learned High Court has acquitted respondent after re-appraisal of the evidence.
Prosecution has fully established its case by brining on record testimony of complainant Hakim Ali (PW-1), Mumtaz (PW-3) and abductees Munawarardin (PW-4) and Barkat Ali (PW-5) coupled with other circumstantial evidence. Learned High Court has acquitted respondent Mooso on wrong presumption and has not appreciated the evidence properly. Even from the perusal of impugned judgment it is clear that learned Judges of the High Court while discussing the evidence of witnesses have categorically stated that all the above-mentioned witnesses have implicated respondent Mooso in the commission of offence. Learned High Court while discussing the evidence of complainant Hakim Ali (PW-1) in the impugned judgment has mentioned that respondent Mooso alongwith Nabu Sahto and others came at the place of occurrence and abducted Khalid Hussain, Barkat Ali and Munawaruddin and demanded Rs. 2,00,000/- as wrongly mentioned that complainant was declared hostile whereas it was not so as per record whereby he was never declared hostile but has fully implicated respondent Mooso and others namely, Wahid Bux, Nooruddin, Jano, Sulleman, Muhbat Mutalib, Shabir, Ghulam Sarwar, Ali Hassan, Mukhtiar, Niyaz Hussain, Naban Bhoro, Paro and 8/10 unidentified persons on the factum of abduction and demand of ransom of Rs. 2,00,000/-. About PW-3 Mumtaz and other eye-witnesses it has been mentioned therein that out of dacoits they identified respondent Mooso. Even on the role of abduction learned Division Bench of High Court has mentioned that complainant Hakim Ali and PW Mumtaz have supported the factum of abduction and also the encounter which took place in between law enforcing agencies and dacoits during which abductee Khalid Hussain was killed whereas other two namely Munawaruddin and Barkat Ali were got released by police. It is worth mentioning that complainant, and PW Mumtaz and abductees in their respective statements at trial have fully supported the case of prosecution both on the factum of abduction and demand of ransom. At trial even all the PWs have identified respondent Mooso to be one of the culprit for kidnapping and demand of ransom. Since in our opinion the impugned judgment is not sustainable in law as such its concluding paragraph is reproduced below:--
"Even if the prosecution evidence, is accepted as correct, there is nothing on record to show if ransom money was paid to the appellant. There is nothing on record to show that demand of ransom money was made by the appellant. In the circumstances there was no evidence for conviction of the appellant under Section 365-A of PPC."
It will not be out of context to point out that appreciation of evidence by the trial Court is to be given full weight by an appellate Court for the reasons that the trial Court had the advantage of observing the demeanor of the witness. If the appellate Court is to take a different view then it should give cogent reasons for doing so which fact is lacking in the instant case. The moment the learned Division Bench came to the conclusion that there was sufficient prosecution evidence brought on record then there was no justification of recording his acquittal merely on the ground that neither ransom money was paid nor said demand was made by respondent. This too is in contradiction with the evidence of PWs discussed above. From which it is clear that at the time of abduction a clear demand of ransom of Rs. 2,00,000/- for release of each abductee was made, which attracted the ingredients of Section 365-A PPC. Section 365-A PPC expressly prescribe that even demand of ransom amount is sufficient to bring the case in its ambit. Learned Division Bench of High Court Sindh while sealing with a case reported as Dhani Bux alias Dhanoo and 2 others versus The State (2000 P.Cr.L.J. 239) convicted and sentenced the accused under Section 365-A PPC; though demand of ransom was made by accused at the time of abduction but ransom amount was got paid as abdutee was not released during encounter in between police and kidnappers.
One of the ingredients of Section 365-A PPC is simple demand of ransom amount for the release of abductee which is fully attracted in the instant case.
Accordingly, we are of the opinion that impugned judgment is not only perverse, arbitrary but is based on misreading, non-appreciation of evidence and is contrary to record. Resultantly, the appeal is allowed and impugned judgment is set aside; the conviction and sentence recorded by the trial Court is restored.
In pursuance of Non-Bailable warrants issued by this Court respondent Mooso was arrested and remanded to custody. Jail authorities are directed to keep him in confinement till he serves out the sentence.
(Aliya Sattar Chaudhry) Appeal allowed.
PLJ 2006 SC 1211 [Appellate Jurisdiction]
Present: Ch. Ijaz Ahmed & Syed Jamshed ali, JJ.
MUHAMMAD FAROOQ & another--Appellants
versus
STATE--Respondent
Crl. A. No. 435 of 2002, decided on 22.6.2006.
(Against the judgment dated 11.3.2002 passed by Lahore High Court, Lahore, in Criminal Appeal No. 880/2000)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 & 34--Constitution of Pakistan, 1973--Art. 185--Conviction and sentence--Solitary witness--Plea of alibi--Appeal against--Complainant, was an accused alongwith deceased in which brother of accused persons, was murdered and on the date of occurrence in the present case, murder case of brother of accused persons was pending--This was statedly the motive for murder of deceased in this case--PW was inimical and interested witness who had a motive to falsely depose against the accused--Plea of alibi of the appellants was rejected on the ground that according to report of finger prints expert, the persons confirmed in District Jails were not the accused persons--Deceased had twenty five injuries out of which eighteen were entry wounds--Besides deceased PW was also challaned in case of murder of brother of accused persons--Had PW been present on the spot, he was not likely to be spared because number of injuries on person of deceased also leads to believe that more than one person participated in occurrence--Therefore, it is unnatural and improbable that if PW was present at spot, he would not be targeted--When he appeared in witness box, he attributed a positive role to co-accused by saying that he took out carbine from his "Dub" and fired at deceased--In these circumstances, presence of PW at spot was highly doubtful--Even Sub-Inspector who had effected the recovery, was not produced and only witness to support recovery was the Head Constable--Provisions of S. 103 Cr.P.C. were not complied with while empties recovered from spot were sent to Forensic Science Laboratory with undue and unexplained delay--A part from fact that two named eye-witnesses were not produced and pretexts for their non-appearance was disbelieved, it has come on record that deceased had other enemies--Possibility of somebody else being responsible for murder of deceased cannot be ruled out--Held: Plea of alibi was wrongly rejected by two Courts--Appeal allowed. [Pp. 1213, 1214 & 1215] A, B, C, D, E, F, G & H
Sardar Muhammad Latif Khan Khosa, ASC for Appellants.
Mr. Mehmood Ahmad Sheikh, ASC for State.
Date of hearing: 22.6.2006.
Order
Ch. Ijaz Ahmad, J.--The appeal was allowed vide short order of even date in the following term:
"For the detailed reasons to be recorded later, this appeal is allowed, the impugned judgments of the Courts below are set aside and the appellants are directed to be released from custody unless required to be detained in some other case".
Following are the reasons of the short order.
The appellants were tried alongwith their co-accused namely Munir Ahmad and Muhammad Sharif and co-convict Amjad Javed under Section 302/34 PPC for the murder of Muhammad Abbas alias Manhoo and sentenced to life imprisonment as Tazir alongwith compensation of Rs. 50,000/- each to the L.Rs of the deceased or in default to suffer six months S.I with benefit of Section 382-B Cr.P.C. vide judgment dated 30.5.2000 of the learned Addl. Sessions Judge, Sargodha. The trial Court acquitted Munir Ahmad and Muhammad Sharif. Sentence and conviction of the appellants were maintained on their appeal by the learned High Court vide impugned judgment dated 11.3.2002 whereas their co convict Khalid Pervez was acquitted.
The learned counsel for the appellants submits that appellants were in jail on the date of occurrence and this fact was admitted by PW9, appellants were granted bail by the learned High Court on the basis of plea of Alibi and both the Courts below have misread the entire evidence of prosecution especially that of PW 16, Sarfraz Mahmood Khan, DSP, CPO who admitted in cross examination that appellant Farooq was lodged in Faisalabad jail against Entry No. 2897 while Amjad Javed was shown to be confined in Sheikhupura Jail. PW9 and PW16 however, took up the position that, in fact, instead of the appellants some other persons went to the jail with their names. Evidence of PW17 Mr. Ramzan Ali Khan/Judicial Magistrate was also ignored who had stated that he had not signed the proceedings of obtaining the sample thumb impressions of the appellants. The recovery effected from Muhammad Farooq appellant is totally false and frivolous. The prosecution failed to produce any independent ocular evidence in the case. Abdul Razzaq was the solitary witness, examined as PW9, who is brother of the deceased and was inimical towards the appellants, the prosecution had cited two other eye-witnesses namely Babar and Sanaullah, but none of them was produced by the prosecution which clearly gave rise to an adverse inference against the prosecution. PW9, having been disbelieved to the extent of the two acquitted co-accused namely Munir Ahmad and Muhammad Sharif could not have been believed against the appellants. Appellant Amjad Javed was declared innocent and nothing was recovered from him. The deceased had received 25 injuries while PW9, the complainant did not receive any injury, although the deceased and PW9, were earlier tried for the murder of Saeed, brother of the appellants and were acquitted and this was the motive to kill the deceased.
The learned counsel for the respondent has supported the impugned judgment.
The submissions have been considered. Both the Courts below have recorded concurrent findings as to the guilt of the two appellants and this Court does not normally interfere in such a situation. However, when it is satisfied with findings of the Courts below, have been arrived at by disregarding any provision of law or accepted principles of appreciation of evidence or are based on inadmissible evidence or misreading of evidence, then the concurrent conclusions loose their sanctity. As would be demonstrated hereunder, the conclusions of the leaned two Courts are against certain settled principles of appreciation of evidence.
PW-9, Abdul Razzaq, the complainant, was an accused alongwith Abbas, deceased in which Saeed, brother of the two appellants, was murdered and on the date of occurrence in the present case, the murder case of Saeed was pending. This was statedly the motive for the murder of Abbas (deceased), in this case. Abdul Razzaq was inimical and an interested witness who had a motive to falsely depose against the appellants. However, in case of Muhammad Farooq, the learned two Courts found that recovery of rifle and the report of the Forensic Science Laboratory that the empties matched with the gun recovered at his instance sufficiently corroborated the testimony of PW-9. As far as Amjad Javed, appellant, is concerned, the only corroborative piece of evidence found was that he had absconded. The plea of alibi of the appellants was rejected on the ground that according to the report of the finger print expert, the persons confined in the District Jails Sheikhupura and Faisalabad were not the two appellants.
The emphasis of the learned counsel has been that if presence of PW-9, at the time of occurrence is disbelieved then the supporting evidence i.e. alleged recovery of rifle from Muhammad Farooq, appellant and absconsion of Amjad Javed would not at all even be relevant.
We will first like to examine the question whether presence of PW-9 at the spot, could in the circumstances, be believed. It may be noted that the deceased had twenty five injuries out of which eighteen were entry wounds. Besides the deceased Muhammad Abbas, PW-9 was also challenged in the case of murder of Saeed, the brother of appellants. Had PW-9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased. The number of injures on the person of the deceased also leads us to believe that more than one person participated in the occurrence. Therefore, it is unnatural and improbable that if PW9 was present at the spot, he would not be targeted. Another reason for us to doubt his presence is that on the same evidence the co-accused namely Munir and Sharif were acquitted by the learned trial Court while Khalid Pervez was acquitted by the learned High Court. Yet another reason which persuaded us to agree with the contention of the learned counsel is that in the FIR except `lalkara', no other role was attributed by PW-9 to Muhammad Sharif. However, when he appeared in the witness box, he attributed a positive role to Muhammad Sharif by saying that he took out carbine from his "Dub" and fired at the deceased. In these circumstances, we are of the view that presence of PW-9 at the spot was highly doubtful.
As far as the alleged recovery of rifle at the pointation of Muhammad Farooq is concerned, even the Sub Inspector who had effected the recovery, was not produced and the only witness to support the recovery was Muhammad Iqbal, Head Constable. The provisions of Section 103 Cr.P.C., were not complied with the while the empties recovered from the spot were sent to the Forensic Science Laboratory with undue and unexplained delay. Therefore, we have no doubt in our mind that recovery of rifle at the pointation of Muhammad Farooq could not be believed. Thus, even if presence of PW-9 at the time of occurrence is accepted, strong corroborative evidence was required to sustain conviction of Muhammad Farooq in view of the rule laid down in `Taj Muhammad vs. Pesham Khan and others (1986 SCMR 823) which was missing.
As far as Amjad Javed is concerned, his case is still simpler. Although we have disbelieved that PW-9 was present at the spot at the time of occurrence yet we will like to add that absconsion has never been considered to be a corroborative piece of evidence. See Nazim Khan and two others vs. The State PLJ 1984 SC 403).
Apart from the fact that two named eye-witnesses were not produced and the pretexts for their non appearance, was disbelieved, it has come on record that Abbas deceased had other enemies (apart from the fact that he was accused in the murder case of Saeed, brother of the appellants), as he was an accused in murder case of Riasat Ali registered vide FIR No. 652, dated 18.11.1986, Police Station, Sadar, Sargodha. Therefore, the possibility of somebody else being responsible for the murder of Abbas deceased cannot be ruled out.
Coming to the plea of alibi of the two appellants, PW-9 and PW-16, had admitted that both the appellants were confined in Faisalabad and Sheikupura jails respectively. The question to be determined was as to the identity of the those persons. The learned two Courts relied upon the report of the finger prints expert. The finding of the learned two Courts was unsustainable for the reason that there was no evidence on record that the finger prints expert had compared the thumb-impressions of the appellants in the jail record with their undisputed thumb-impressions. Mr. Ramzan Ali Khan, Judicial Magistrate who was examined as PW-17, stated that the proceedings of obtaining thumb impressions of Amjad Javed, Khalid Pervez and Muhammad Farooq, do not bear his signatures as the proceedings were not supervised by him. It was some other executive Magistrate and the Investigating Officer inadvertently recorded his name. The Investigating Officer, PW-16, admitted that there was nothing on the sample papers as to the identification of the accused persons before the Magistrate and that their national identity card numbers were not given on the sample papers. Therefore, in the absence of proof of comparison by the expert of undisputed thumb impressions of the appellants with the thumb impressions in the jail record, the evidentiary value of the report of the finger expert was nil. Therefore, we have no doubt in our mind that the plea of alibi was wrongly rejected by the learned two Courts.
Resultantly, we allow this appeal, set aside the impugned judgments of the Courts below and the appellants are directed to be released from the custody unless required in some other case.
(Aliya Sattar Chaudhry) Appeal allowed.
PLJ 2006 SC 1215 [Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar, M. Javed Buttar & Ch. Ijaz Ahmed, JJ.
KHIZAR HAYAT--Petitioner
versus
STATE--Respondent
Criminal Petition No. 143 of 2006, decided on 21.6.2006.
(Against the judgment dated 12.4.2006 passed by the Lahore High Court, Lahore, in Crl. A. No. 971/2000, M.R. No. 405/2000).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 84--Constitution of Pakistan, 1973--Art. 185(3)--Conviction and sentence--Insanity--Plea of accused--Leave to appeal--Prayer for--Motive of occurrence according to prosecution was that accused and his mother approached complainant a week before occurrence demanding hands of his daughter which proposal was not agreed to--It is not every person who is mentally diseased, ipsofacto, is exempted from criminal responsibility--Any person who seeks the benefit of S. 84 of P.P.C. must prove that at the time of committing act, he was labouring under such defect of reason as not to know the nature and quality of the act he was doing--Question as to whether accused was insane at time of occurrence so as to attract the application of S. 84 of P.P.C. was question of fact to be decided on facts of that case--Concurrent finding of fact recorded by Courts below after proper appreciation of evidence as was evident from impugned judgment of High Court--Statement of complainant was consistent even though subjected to lengthy cross examination--His statement was corroborated by PW, motive and medical evidence--Accused was named as accused in this case by real father of deceased and uncle of accused--Complainant has lodged F.I.R promptly against accused only--Substitution of real culprit was a rare phenomenon--Held: Concurrent findings of fact recorded by Courts below were in consonance with law laid down by Supreme Court--Petition devoid of any substance was dismissed and leave refused. [Pp. 1217 & 1219] A, B, C, D, E & F
Sardar Asmatullah Khan, ASC and Mr. Arshad Ali Chaudhry, AOR Petitioner.
Nemo for Respondent.
Date of hearing : 21.6.2006.
Order
Ch. Ijaz Ahmed, J.--The petitioner was convicted and sentenced under Section 302(b) PPC to death alongwith compensation of Rs. 1,000,00/- to the legal heirs of the deceased or in default to suffer six months' S.I. for the murder of Aamer Hayat vide judgment dated 28.6.2000 passed by the learned Sessions Judge, Mianwali. His conviction and sentence were maintained by the learned High Court on his appeal vide impugned judgment dated 12.4.2006. Hence the present petition.
The learned counsel for the petitioner submits that petitioner was insane person and was suffering from schizophrenia and his case was fully covered under Section 84 of PPC but both the Courts below erred in law to reject his plea of insane. That petitioner had taken a specific plea in his statement under Section 342 Cr.P.C. and had proved the same by producing DW1 to DW5 alongwith documentary evidence. Both the Courts below erred in law to discard evidence of DW1 to DW5 who are doctors and the documentary evidence. That petitioner was taking medicine qua the said disease on 16.12.1998, 2 days prior to the occurrence. That incident had taken place all of sudden. PW5 is father of the deceased whereas the mother of PW6 Sultan Khan is cousin of PW5 Aamer Umar Khan/complainant. In support of his contention he relied upon Mst. Shamshad v. The State (1998 SCMR 854) and Juma Khan v. The State (PLD 2003 Lahore 60).
We have given our due consideration to the contention of learned counsel for the petitioner and perused the record. All the contentions raised before us are exactly same which were raised before the High Court. The said pleas were rejected with cogent reasons by the learned High Court vide paras Nos. 10 to 19 of the impugned judgment. The petitioner is nephew of the complainant/PW5 and first cousin of the deceased. One daughter of the complainant was married to the real younger brother of the petitioner. Motive of the occurrence according to the prosecution is that the petitioner and his mother approached the complainant/PW5 a week before the occurrence demanding the hands of his daughter which proposal was not agreed to.
We have now to examine the plea of the petitioner with regard to the unsoundness of his mind. Petitioner wants to get the benefit of Section 84 of PPC which runs thus;
"nothing is an offence which is done by a person who at the time of doing it, by reasons of unsoundness of mind, is incapable of knowing the nature of the fact, or that he is doing either wrong or contrary of law."
"(i) If the accusaed raises any special plea or claims exoneration on the basis of any special or general exception he must prove his special plea or the existence of conditions entitling him to claim the exoneration.
(ii) Irrespective of the success or failure of the special plea raised by the defence or its claim to exoneration the prosecution must prove its case beyond any reasonable doubt.
(iii) If after an examination of the entire evidence the Court is of opinion that there is a reasonable possibility that the defence put forward by the accused may be true or that the evidence casts a doubt on the existence of the requisite intention or mens rea which is a necessary ingredient of a particular offence, this will react on the whole prosecution case entitling the accused to the benefit of doubt.
(iv) Legal insanity as contemplated in Section 84, P.P.C. is different from medical insanity. If the cognitive faculty is not impaired and the accused knows that what he is doing either wrong or contrary to law he is not insane. Merely being subjected to uncontrollable impulses or insane delusions or even partial derangement of mind will not do, nor mere eccentricity or singularity of manner.
(v) If there is evidence of premeditation and design or evidence that the accused after the act in question tried to resist arrest the plea of insanity may be negatived.
(vi) If the facts are clear so far as the act complained of is concerned motive is irrelevant.
"This decision was arrived at after a comprehensive review of the relevant law on the point before their Lordships. The aforesaid proposition of law is also supported by the (AIR 1960 Madras 316) in re Kantasami Mudali."
It is a settled maxim in law, until the contrary is proved, every man is presumed to be sane and possessed of a sufficient decree of reasons to be responsible for his actions. This clear follows from Article 121 of the Qanun-e-Shahadat Order, 1984 which provides that the burden of proving that the case of an accused person follows within an exception is on him. Reference may be made from the following judgments:--
Dewa Ram v. Emperor (AIR 1937 Lahore 486);
Jamshaid Beg v. Muhammad Iqbal and another (1988 SCMR 855);
Allah Wadhayo and another v. The State (2001 SCMR 25);
Baswantrao Bajirao v. Emperor (AIR 1949 Nagpur 66);
Mani Ram v. Emperor (AIR 1927 Lahore 52).
It is a settled proposition of law that medical and the legal standards of sanity are not identical. See (AIR 1959 Madras 230) in re Pappathi Ammal and (AIR 1923 Lahore 508) Shera Singh v. The Crown. The relevant observation is as follows:--
"From the medical point of view it is probably correct to say that every man at the time when he commits a murder is insane, that is, he is not in a sound, healthy normal condition, but from the legal point of view a man must be held to be same so long as he is able to distinguish between right and wrong, so long as he knows that the offence he is committing is a wrong thing to do, so long as he has a guilty mind".
It is also a settled law that the medical expert would at the most furnish the Court with a data to the existence, character and the extent of the mental disease. Thereafter the job of the Court to see whether the accused was legally insane at the time of the commission of crime or not. It is a settled proposition of law that the question as to whether the petitioner was insane at the time of occurrence so as to attract the application of Section 84 of PPC is a question of fact to be decided on the facts of that case. See:
The State of Madhya Pardesh v. Ahmadulla (AIR 1961 SC 998);
Dewa Ram v. Emperor (AIR 1937 Lahore 486).
The ratio of the aforesaid precedents is that the benefit of Section 84 PPC could only be given when petitioner/convict is found insane at the time of commission of offence. Both the Courts below after proper appreciation of evidence have given finding of fact against the petitioner that he was not insane at the time of commission of offence. In the interest of justice and fair play, we have re-examined the evidence on record. We are of the view that conclusion arrived at by the Courts below were justified on the basis of evidence on record. The concurrent finding of fact recorded by the Courts below after proper appreciation of evidence as is evident from para 16 to 18 of the impugned judgment of the learned High Court. The statement of complainant PW5 is consistent even though subjected to lengthy cross-examination. His statement is corroborated by PW-6, motive and medical evidence. As mentioned above the petitioner was named as an accused in this case by the real father of the deceased and uncle of the petitioner. The daughter of the complainant is also married with the real brother of the petitioner. The complainant has lodged First Information Report promptly against the petitioner only. Substitution of real culprit is a rare phenomenon. See Sirajuddin vs. Kala (PLD 1964 SC 26) and Muhammad Ayub's case (1983 SCMR 197). It is settled law that each and every case is to be decided on its own peculiar circumstances and facts specially the verdict in a criminal case generally must be confined to the facts of the reported case and cannot be universally apply to all cases. The judgments cited by the learned counsel for the petitioner are distinguishable on facts and law as observed by the learned High Court in the impugned judgment in para 17. The concurrent findings of fact recorded by the Courts below are in consonance with the law laid down by this Court in Jalal Din v. The State (1974 SCMR 214).
In view of what has been discussed above we do not find any infirmity or illegality in the impugned judgment. The petition being devoid of any substance is dismissed. Leave refused.
(Aliya Sattar Chaudhry) Petition dismissed.
PLJ 2006 SC 1220 [Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Raja Fayyaz Ahmed, JJ.
MUHAMMAD AKRAM--Appellant
versus
STATE--Respondent
Criminal Appeal No. 260 of 2001, decided on 17.1.2006.
(On appeal from the judgment dated 14.1.2000 of Lahore High Court, Lahore passed in Crl. Appeal No. 94-J of 1999).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973--Art. 185--Conviction and sentence--Ocular evidence--Recovery of weapon of offence--Appeal against--Presence of PW at spot was established beyond doubt and mere fact that he was father of deceased or that was also witness of recovery of Bugda, would not be sufficient to call him a partisan or an interested witness to discord his evidence--This is mentioned in judgment of High Court that PW, prior to making of statement before trial Court also made statement on oath u/S. 164 Cr.P.C. before Addl. Sessions Judge in which he nominated accused as assailant but this statement u/S. 164 Cr.P.C. was neither tendered in evidence nor was recorded in presence of accused, therefore, could not be considered--Perusal of record and analysis of evidence would suggest that presence of PW at place of occurrence as mentioned in complaint lodged by PW, real brother of accused, on basis of which case was registered stood proved beyond doubt, therefore, there was no reason to disbelieve this most natural and truthful witness--Held: In light of unimpeachable character of testimony of eye-witness duly supported by medical evidence and recovery of weapon of offence (iron Bugda) and circumstances of case in totality, the conclusion of evidence drawn by trial Court and High Court was unexceptional--Appeal dismissed. [Pp. 1224 & 1225] A & B
Mr. Muhammad Zaman Bhatti, ASC for Appellant.
Malik Muhammad Aslam, ASC for Respondent.
Date of hearing : 17.1.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court has been directed against the judgment dated 14.1.2000 passed by a learned Judge in chamber of the Lahore High Court, Lahore whereby the appeal filed by the present appellant against the conviction and sentence of life imprisonment awarded to him under Section 302(b) PPC with direction to pay compensation of Rs. 10,000 under Section 544-A Cr.P.C. to the legal heirs of the deceased by the learned Sessions Judge, Sheikhupura was dismissed. Leave was granted in this appeal vide order dated. 1.11.2000 as under:--
"This petition for leave to appeal has been filed from jail by one Muhammad Akram. It has arisen from the judgment dated whereby the petitioners appeal against his conviction and sentence in the murder case of his sister-in-law (brother's wife Mst. Shamim Akhtar was dismissed).
The occurrence had taken place on 7.7.1997 at about 8.00 p.m and the FIR was lodged at Police Station Saddar Muridke at was charged for committing murder of the deceased with a Bugda. The petitioner was convicted under Section 302(b) PPC and sentences to imprisonment for life with benefit of Section 382-B Cr.P.C. and directed to pay a sum of Rs. 10000/- as compensation to the legal heirs of the deceased.
The complainant had resiled from his statement at the trial. The conviction of the petitioner rests on the ocular evidence furnished by Muhammad Bashir, father of the deceased, and recovery of the weapon of crime from his residential room which was stained with human blood according to the reports of the Chemical Examiner and the Serologist.
In my opinion that is a case for condonation of delay and grant of leave to examine whether Muhammad Bashir was present on the spot and had witnessed the occurrence because, according to the FIR, he was attracted to the spot on hearing, alarm raised by the complainant. Besides, he had not taken any step either to rescue the deceased from the clutches of the petitioner or to apprehend the petitioner. The incriminating recovery also needs scrutiny inasmuch as the complainant and the petitioner had allegedly run away from the spot alongwith Bugda he was arrested on 11.7.1997 and the weapon of crime was recovered on 16.7.1997 from an unlocked Truck lying in his room."
The sole question requiring determination in the present case would be as to whether Muhammad Bashir, a single eye witness had actually seen the occurrence or he being not resident of place of occurrence, subsequently on receiving the information of the murder of his daughter reached at the spot.
The occurrence in the present case, in which Mst. Shamim Bibi, wife of complainant, was murdered, had taken place at 8.00 a.m. on 7.7.1997 in the house of her husband situated in Mouza Tapiala Dost Muhammad and report was lodged by Muhammad Asghar, complainant (PW 6) on the same day at 10.15 a.m. at Police Station Muridkay District Sheikhupura. The facts in the background as narrated in the FIR are that appellant, real brother of Muhammad Asghar (complainant) was not happy with the marriage of complainant with Mst. Shamim and used to quarrel with her even on petty matters. On the fateful day, the appellant having picked up a quarrel with the deceased, inflicted successive blows with an iron budga, on her head and on her hue and carry, Muhammad Bashir, father of deceased, who was already present in the house of her daughter, made an attempt to intervene but could not save the life of his daughter. The appellant after causing injuries to the deceased escaped form the place of occurrence with the weapon of offence and deceased in injured condition, was taken to the hospital but she succumbed to the injures in the Hospital. Ghulam Nabi, S.I during the spot inspection took into possession blood-stained earth from the place of occurrence and on arrest of the appellant recovered iron Bugda at his instance from his residential house. The post-mortem examination of Mst. Shamim Akhtar conducted by Dr. Muhammad Maqsood revealed eight injuries of following description, caused on different parts of her body with sharp-edged weapon:--
"1. An oblique cut lacerated wound 8 x 3 cm x going deep with sharp angles present on left side of fact involving left ear pinna 3 cm from left eye-brow and cm from left ear labule.
An oblique cut lacerated wound 4.5 x 1 cm x going deep with acute angles and contused edged present on top of head 16 cm above left ear 16 cm above the roots of nose.
A cut lacerated wound 305 x 1 cm x going deep with acute angles and contused edges present on right side of head 5 cm above right ear.
A cut lacerated wound 6 x 4 cm x going deep with acute angles and contused edges present on the back of right side neck 4.5 cm above the root of neck.
A wound complex of 4 spindle shape incised wound in an area of 25 cm x 6 cm x going deep present on upper part of back of chest minimum size is 1.5 x 1 cm and maximum size is 2.5 x 2 cm. There were multiple abrasions in this area.
A spindle shape incised wound 2 x 1 cm x going deep present on back of right forearm 5 cm below right elbow joint (defence wound).
7 An incised wound 3 x 1/2 cm on the palm of left hand 2 cm below left wrist joint. It was a defence wound.
The cause of death was the result of cutting of second survical vertebra in the spinal cord. The prosecution in support of the charge, produced Asghar Ali, complainant (PW6), Muhammad Bashir (PW9) and also placed reliance on the medical evidence as well as recovery of weapon of offence. The complainant (PW6), however, resiled at the trial and did not support the prosecution but in the cross-examination by the prosecutor, he admitted to have thumb marked the statement (Ex-PB) on the basis of which was registered and that he took the deceased (Mst. Shamim) in injured condition to Meo Hospital Lahore but denied to have seen the occurrence as stated in the First Information Report and also denied the presence of Muhammad Bashir, father of deceased, at his house at the relevant time. The learned trial Judge having made detailed scrutiny of the evidence, observed that complainant has suppressed the truth to save the life of his real brother whereas the presence of Muhammad Bashir, (PW 9), father of deceased at her house was quite natural and he was a truthful witness. The learned trial Judge having held the petitioner guilty of charge, convicted and sentenced him to imprisonment for life under Section 302(b) PPC with observation that occurrence was the result of sudden quarrel. The appeal filed by the petitioner was dismissed by the learned Judge in chamber in the High Court with the finding that although Muhammad Asghar, (complainant), has not supported the prosecution but the charge against the appellant stood proved on the basis of evidence of Muhammad Bashir (PW9) duly supported by medical evidence and recovery of blood-stained Bugda.
The learned counsel for the appellant has challenged the presence of Muhammad Bashir, sole eye witness of occurrence on the ground that his residence was not at a short distance from the house of his deceased daughter, therefore, his claim of having seen the occurrence was not correct which was also negated by the fact that in the FIR it was mentioned that father of deceased reached at the scene of occurrence on the hue and cry raised by complainant and thus it stood established on record that assailant escaped from the place of occurrence before he reached at the spot. The learned counsel added that the recovery of weapon of offence (Bugda) after 5 days of the arrest of appellant from his residential house in presence of Muhammad Bashir (PW 9), being doubtful was not reliable and motive was also shrouded in mystery. In nutshell the learned counsel argued that Muhammad Asghar, lodger of FIR and the sole eye witness of the occurrence having disowned the story of FIR, has not supported the prosecution and in these circumstances uncorroborated statement of Muhammad Bashir who has not seen the actual occurrence, would be of no use and help to the prosecution to sustain he conviction.
Learned counsel for the State on the other hand, has argued that the occurrence took place in the broad-day-light in the house in which the appellant and the complainant with his deceased wife were living together in separate rooms. The presence of Muhammad Bashir, father of deceased in the house of her daughter being not unexpected, could not be doubted and further in the report lodged by the complainant immediately after the occurrence, he was shown as an eye witness. Therefore, he was quite natural witness of the occurrence. The testimony of Muhammad Bashir being supported by the medical evidence, recovery of Bugda (weapon of offence) and the attending circumstances would alone be sufficient to sustain the conviction.
The appellant and complainant being real brother were living in the same house in separate rooms with common courtyard. The complainant has admitted his signatures on the statement made by him before Ghulam Nabi, S.I. which was converted into FIR and according to Ghulam Nabi, S.I. he recorded the statement of, Complainant, at Ada Monoabad, shortly after the occurrence, wherein the name of Muhammad Bashir as eye witness of the occurrence was mentioned. In view thereof, the presence of Muhammad Bashir at the spot was established beyond doubt and mere fact that he was father of deceased or that was also witness of recovery of Bugda, would not be sufficient to call him a partisan or an interested witness to discord his evidence. Ghulam Nabi, S.I. who recovered Bugda at the instance of appellant was as good a witness as any other person and even if the evidence of Muhammad Bashir to the extent of recovery of weapon of offence would have been excluded from consideration, the statement of SI Ghulam Nani would be sufficient to prove the recovery of blood-stained Bugda at the instance of appellant from his house. There is no cavil to the proposition that FIR is not a substantive piece of evidence but in the present case the complaint lodged by Muhammad Asghar (PW6) under this thumb impression was converted into FIR wherein Muhammad Bashir was shown as an eye witness of the occurrence taken place in the house of complainant and Muhammad Bashir deposed quite consistent with the facts mentioned therein therefore, the FIR could be safely used as a source of independent corroboration. This is mentioned in the judgment of the High Court that Muhammad Asghar, prior to the making of statement before the trial Court also made a statement on oath under Section 164 Cr.P.C. before the Additional Sessions Judge in which he nominated Muhammad Akram as an assailant but this statement under Section 164 Cr.P.C. was neither tendered in evidence nor was recorded in presence of the appellant, therefore, could not be considered. The perusal of record and analysis of evidence would suggest that presence of Muhammad Bashir (PW.9) at the place of occurrence as mentioned in the complaint lodged by Muhammad Asghar, real brother of petitioner, on the basis of which case was registered stood proved beyond doubt, therefore, there was no reason to disbelieve this most natural and truthful witness. In the light of unimpeachable character of testimony of Muhammad Bashir, duly supported by the medical evidence and recovery of weapon of offence (iron bugda) and the circumstances of the case in totality the conclusion of evidence drawn by the trial Court and the High Court was unexceptional. The learned counsel for the appellant has not been able to convince us that the concurrent finding of the two Courts regarding the guilt of appellant was suffering from any misreading or non reading of evidence or there was any other legal defect in the judgment of High Court calling for interference of this Court.
In the light of forgoing discussion, this appeal fails and same is accordingly dismissed.
(Aliya Sattar Chaudhry) Appeal dismissed.
PLJ 2006 SC 1225 [Appellate Jurisdiction]
Present: Javed Iqbal, Nasir-ul-Mulk & Hamid Ali Mirza, JJ.
SANA-UR-REHMAN & another--Petitioners
versus
NAYYAR AHMED & another--Respondents
Criminal Petitions Nos. 286 & 341 of 2004, decided on 25.4.2006.
(On appeal from the judgment dated 21.5.2004 of the Peshawar High Court, Abbottabad Bench, passed in Cr. A. No. 47 of 2002).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 337-A (ii), 337 & 34--Constitution of Pakistan, 1973, Art. 185(3)--Shajjah-i-mudihah--Acquittal by trial Court--Conviction by High Court--Petition for leave to appeal--Statement of PW had been misconstrued by judicial Magistrate who had mentioned in categoric manner that respondents were quarrelling with P.W. while respondent was sitting at some distance and blood was oozing from his forehead and mouth--Judicial Magistrate had ignored fact that PW had arrived at place of occurrence due to commotion and witnessed occurrence as stated by him--No exaggeration or dishonest concealment could be pointed out in his statement by judicial magistrate and being worthy of credence it could not have been discarded--Statement of P.W. who was an eye-witness had been discarded being brother of the respondent in violation of well entrenched legal proposition that on the basis of interse relationship, the statement of witness cannot be discarded--Judicial Magistrate had failed to appreciate the intrinsic value of the eye account as furnished by P.W.--Medical evidence lends full corroboration to the occular evidence furnished by PW--Held: High Court in chambers had appreciated the evidence in accordance with law, settled norms of justice and well entrenched principles enunciated by Supreme Court qua safe administration of justice--Held further: Judgment impugned being well based does not warrant interference--Petitions dismissed and leave refused. [Pp. 1227, 1228 & 1229] A, B & C
Mr. Muhammad Ilyas Siddiqi, ASC for the Petitioner (in Cr.P. 286/04).
Mr. M.A. Zaidi, AOR & for Respondent No. 2 (in Cr. P. 341/04).
Mr. Ch. Akhtar Ali, AOR & for Respondent No. 1 in Cr.P. 286/04) (in Cr.P. No. 341/04).
Date of hearing : 25.4.2006.
Judgment
Javed Iqbal, J.--The above captioned petitions for leave to appeal are directed against the judgment dated 21.5.2004 whereby the criminal appeal preferred on behalf of Nayyar Ahmed (Respondent in Cr. A. No. 286 of 2004) has been accepted by setting aside the acquittal order passed by learned Judicial Magistrate, Balakot.
Precisely stated the facts of the case are that an altercation ensued due to a dispute on cutting grass which resulted in an attack by Raza-ur-Rehman, Sana-ur-Rehman and Saif-ur-Rehman upon the respondent who sustained tooth injuries which was determined as grievous. A case was got registered by the respondent by means of FIR No. 187 dated 9.6.1998 at Police Station Balakot under Sections 337-A (ii) and 337 and Section 34 PPC. The petitioner alongwith co-accused were arrested and after completion of investigation sent up for trial and on conclusion whereof they were acquitted by the learned Judicial Magistrate, Balakot by means of order dated 5.7.2000 which was assailed by the respondent by way of appeal which has been accepted, hence these petitions.
Mr. Muhammad Ilyas Siddiqi, learned ASC entered appearance on behalf of petitioner and contended that the learned single Judge of the Peshawar High Court, (Abbottabad Bench) has failed to appreciate the legal and factual aspects of the matter in its true perspective which resulted in serious miscarriage of justice as the order passed by learned Judicial Magistrate, Balakot, acquitting the petitioner being well based should have not been interfered with. It is next contended that the learned single Judge in chambers has erred while holding that the ocular account was supported by medical evidence. It is also pointed out that no reasoning whatsoever could be given by the learned single Judge in chambers for convicting the respondents and besides that the evidence led by the prosecution was inconsistent, vague and sketchy on the basis whereof no conviction could have been awarded.
We have carefully examined the contentions as canvassed at bar on behalf of the petitioners, thrashed out the entire record and perused the judgment impugned with care and caution. Let we make it clear here at this juncture that "the principles which have been consistently followed by the Supreme Court are that as an ultimate Court, the Supreme Court must give due weight and consideration to the findings of the Courts below, and normally it should not interfere with their findings where it is satisfied that they are reasonable and were not arrived at by disregard of any accepted principle regarding appreciation of evidence. The mere fact the Supreme Court might have taken a different view of the evidence should not be sufficient to over-rule the findings of the Court below. However, if the grounds upon which the High Court has acted are not supportable on the record, or the decision on a question of fact has turned upon inadmissible evidence or upon a faulty reading of evidence, or where there has been a departure from the procedure in the reception of evidence or otherwise inference by this Court would be justified and necessary. Therefore, Supreme Court will be reluctant to interfere with such orders unless it is possible to demonstrate with certainty that none of the grounds upon which he was acquitted is at all supportable, even though upon the evidence on record a different conclusion might be arrived at. But where the acquittal of the respondent cannot be maintained as the findings recorded by the High Court are clearly not supportable on the record, interference by the Supreme Court is not only justified but necessary in the interest of justice." (Farid v. Aslam PLD 1977 SC 4, State v. Khan Beg 1970 SCMR 353, Haq Nawaz v. Muhammad Khan 1997 SCMR 356), Dal Singh v. King-Emperor AIR 1917 PC 25, Bertrand's case (1867) 1 PC 520, Abraham Mallory Dillett's case (1887) 12 AC 459, Taba Singh v. Emperor AIR 1925 PC 59, Otto George Gfeller v. The King AIR 1943 PC 211, Mohindar Singh v. Emperor AIR 1932 PC 234, Muhammad Nawaz v. Emperor AIR 1941 PC 132, Muhammad Ashiq v. Allah Bakhsh PLD 1957 SC [Pak.] 293, Fateh Muhammad v. Bagoo PLD 1960 SC 286, Zafar Ali v. The State PLD 1962 SC 320), Siraj Din v. Kala PLD 1964 SC 26).
On the touchstone of the criterion as mentioned herein above we have examined the order passed by the learned Judicial Magistrate, Balakot acquitting the accused which has been reversed vide judgment impugned. We are of the considered view that the learned Judicial Magistrate, Balakot has not appreciated the evidence in its true perspective causing serious prejudice against the respondent. It has been observed that the statement of Ajab Khan PW has been misconstrued by the learned Judicial Magistrate who had mentioned in a categoric manner that respondents were quarrelling with Sajjad Ahmed PW while Nayyar Ahmed (respondent/complainant) was sitting at some distance and blood was oozing from his forehead and mouth. The learned Judicial Magistrate has ignored the fact that Ajab Khan (PW) has arrived at the place of occurrence due to commotion and witnessed the occurrence as stated by him. No exaggeration or dishonest concealment could be pointed out in his statement by the learned Judicial Magistrate and being worthy of credence it could not have been discarded. It has been observed that the statement of Sajjad Ahmed PW who is an eye-witness has been discarded being brother of Nayyar Ahmed (respondent/complainant) in violation of the well entrenched legal proposition that on the basis of inter-se relationship, the statement of a witness cannot be discarded. The learned Judicial Magistrate has failed to appreciate the intrinsic value of the eye account as furnished by Sajjad Ahmed (PW). The medical evidence lends full corroboration to the ocular evidence furnished by Dr. Fazlur Rehman, Medical Officer (P.W.1) and Dr. Salim Anwar, Dental Surgeon (PW) which is reproduced herein below for ready reference:--
Dr. Fazlur Rehman, Medical Officer, PW
"1. Complaining of pain in the teeth for which referred to Dental Surgeon.
Scratches on the right side of neck only superficial layer of skin.
A lacerated wound on forehead left 1/4" into underlying bone visible.
Complaining of vertigo.
According to this witness the weapon was blunt and time between the injury and examination was 1/2 hours to 2.00 hours."
Dr. Salim Anwar, Dental Surgeon, PW
"1. Left upper central incisor is out of place due to the blow. The tooth socket is bleeding. That is completely out of socket due to the blow.
Duration: Three hours.
Nature of injury: Grievous."
A bare perusal of the medical evidence would lead to draw the conclusion that left upper central incisor was out of place due to the blow and more so the tooth socket was bleeding and besides that one lacerated wound on the joint lower lip was also pointed out which escaped the notice of learned Judicial Magistrate. Insofar as the non-production of lost tooth is concerned, it would have no substantial bearing on merits of the case.
After having gone through the entire record we are of the considered view that the prosecution has established the guilt to the hilt. The learned single Judge of the High Court in chambers has appreciated the evidence in accordance with law, settled norms of justice and well entrenched principles enunciated by this Court qua safe administration of justice. The judgment impugned being well based does not warrant interference.
The criminal petition Bearing No. 341 of 2004 preferred on behalf of Nayyar Ahmed being barred by 76 days and devoid of merit is dismissed. It would not be out to place of mention that sufficient incriminating material could not be brought on record inferring that Raza-ur-Rehman and Saif-ur-Rehman were also responsible for the commission of the alleged offences and they are not liable to be conviction and sentenced as pressed time and again on behalf of Nayyar Ahmed, petitioner in Criminal Petition No. 341 of 2004.
In sequel to above mentioned discussion, both the petitions are hereby dismissed and leave refused.
(Aliya Sattar Chaudhry) Petition dismissed.
PLJ 2006 SC 1229 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Falak Sher, JJ.
NASIR SHAH--Petitioner
versus
STATE--Respondent
Jail Petition No. 39 of 2005, decided on 13.6.2006.
(On appeal from the judgment dated 12.1.2005 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 449 of 2004).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Qanun-e-Shahadat Order, 1984 (10 of 1984, Art. 46--Leave to appeal--Dying declaration--Conviction and sentence--Challenge to--It was proved by tailor master PW that after aftari which they had together, son of deceased was called out by someone--Soon thereafter, he heard report of single fire shot, that he rushed out to see that deceased was lying injured only seven paces away from the shop--Second phase of dying declaration in the Hospital, is also proved by same witness who, being a friend, had admittedly accompanied the injured to the Hospital--He confirmed that report was lodged by deceased in his presence and that he had lived thereafter for about three hours--Veracity of dying declaration was above all proved by Doctor according to whose medico legal report the injured was mentally alert--Both accused though friends otherwise, had absconded and petitioner was arrested more than five months after occurrence--Abscondence being supportive evidence, proves the involvement of petitioner--Evidence is suggestive of fact that petitioner was around and in search of deceased, already armed with weapon especially carried for criminal purpose--Held: Prosecution having proved its case beyond any shadow of reasonable doubt, trial Court has rightly convicted and High Court has rightly maintained conviction as well as sentence--Petition dismissed and leave to appeal refused.
[Pp. 1230, 1231 & 1232] A, B, C, D & E
Mr. M. Zaman Bhatti, ASC for Petitioner.
Nemo for State.
Date of hearing : 13.6.2006.
Judgment
Sardar Muhammad Raza, J.--Nasir Shah son of Pir Badshah, through this jail petition, seeks leave to appeal against the judgment dated 12.1.2005 of a learned Division Bench of Peshawar High Court, whereby, the conviction under Section 302(b) PPC and the sentence of death in addition to a compensation under Section 544-A Cr.P.C. of Rs. 1,00,000/- recorded against the petitioner by the learned Additional Sessions Judge-III Kohat vide judgment dated 31.5.2004, was upheld and the murder reference answered in the affirmative.
Brief facts of the case as narrated by Mukhtiar Khan son of Madar Khan deceased, then injured, are that the deceased on 1.12.2000 at about 1800 hours was present in the shop of one Anwar Tailor Master when Sher Muhammad Khan alias Maikh, an Afghan Refugee came there and informed him that he was being called by some one outside. He came out and saw Nasir Khan. convict armed with a 12 bore pistol, who fired a shot at Bukhtiar Khan with which he got hit at abdomen in the front area. Motive was not known to the convict.
Both, the convict Nasir Shah and Sher Muhammad alias Maikh were tried under Section 302/34 PPC. The trial concluded into the conviction and sentence aforesaid of the present petitioner and conviction under Section 302(c) PPC of Sher Muhammad alias Maikh, who was sentenced to rigorous imprisonment for five years and a compensation of Rs. 25,000/-.
The substantive piece of evidence in the instant case is the report of the deceased himself, which was lodged by the deceased in the emergency room of Liaquat Memorial Hospital Kohat. The veracity as well as the strength of this dying declaration is to be determined by the evidence as well as the attending circumstances. It has come on record that the deceased, Sher Muhammad messenger and the convict Nasir Shah were friends inter se. In such circumstances and in the wake of no enmity at all, the charge brought about by a friend against a friend seems to be true and genuine, more particularly when the petitioner stood singularly charged for the fatal act.
It is a promptly lodged FIR with 30 minutes and hence, in view of the singular charge and the absence of enmity, it excludes all the possibilities of prompting, deliberations and concoctions. Rather, the record shows that even his father was not present when the deceased lodged the report.
It is proved by Anwar Ali Khan, tailor master (PW-12) that after aftari which they had together, Bakhtiar was called out by someone. That soon thereafter, he heard the report of single fire shot, that he rushed out to see that the deceased was lying injured only seven paces away from the shop. He did not see any one because by that time, which could be a matter of seconds, the petitioner as well as the messenger had decamped. The second phase, of dying declaration in the hospital, is also proved by the same witness who, being a friend, had admittedly accompanied the injured to the hospital. He confirms that the report was lodged by the deceased in his presence and that he had lived thereafter for about three hours. The veracity of dying declaration is above all proved by the doctor according to whose medico legal report the injured was mentally alert.
The medical evidence is in accord with the statement of the deceased. Both the accused though friends otherwise, had absconded and the petitioner Nasir Shah was arrested more than five months after the occurrence on 7.5.2001. The abscondence being a supportive evidence, proves the involvement of the petitioner. All these circumstances, taken together go a long way to prove that the dying declaration in hand was promptly lodged, leaving no room for consultations or deliberations. Rather, there was no one available for such consultations and deliberations. That it is spontaneous and rings true. We hold that in the light of evidence and the attending circumstances, both the learned Courts have rightly recorded and maintained the conviction as well as the sentence.
The learned counsel for the petitioner contended that no blood was recovered from the spot and hence the prosecution failed to prove that the occurrence took place near the shop of Anwar Ali Tailor. It may be emphasized that the recovery of blood is a circumstance proving only the place of occurrence. When there is overwhelming evidence on record to sufficiently prove the place of occurrence, it makes the least difference whether the blood is recovered or not. Anwar Ali Tailor is the most independent witness who has proved that the occurrence had taken place seven paces away from his shop. The objection is not well founded.
Next contention of the learned counsel for the petitioner was that the confessional statement of Sher Muhammad Khan was exculpatory and hence no conviction could be based thereon. We agree that it was exculpatory but the prosecution case is fully proved even if such statement of Sher Muhammad co-accused is excluded.
Learned counsel further alleged that the petitioner Nasir Khan was a juvenile and hence could not have been sentenced to death. A certificate from Principal, Pakistan Public School, Havelian dated 12.6.2004 was produced in support of the assertion that he was born on 6.5.1985 and was more or less 15/16 at the time of occurrence. The enclosures shown in the certificate were not produced. The learned High Court has rightly discarded this certificate considering the same to be subsequently procured and after thoughts, for, no such plea was taken at the trial. Apart from the fact, that how could an afghan refugee belonging to and resident of Kohat would go all the way to Havelian about 150 miles away for getting admitted in a private school, there is sufficient evidence on record to suggest otherwise. In the inquest report the age of the petitioner is mentioned as 21/22 years. From statement under Section 342 Cr.P.C, his age can be calculated as 20 years. At the time of charge he was 22 years. All these pieces of evidence sufficiently proved that the certificate produced at such a belated stage, was a procured one and fake altogether. No benefit can, therefore, be extended.
Coming to the question of sentence, it was alleged that the motive is shrouded in mystery and hence the petitioner was not liable to be imposed the normal sentence. This Court has held in numerous cases that when a case is otherwise proved, the knowledge and proof of motive is not at all necessary. Sometimes, it is known to the assailant and the almighty alone. The evidence is suggestive of the fact that the petitioner was around and in search of the deceased, already armed with a weapon especially carried for criminal purpose. He knew as to where the deceased was and he sent a messenger after him to call him out. It is a sufficient evidence indicating premediation of the petitioner using a weapon that does not fail and at the same time can conveniently be concealed. In the circumstances, we hold that it was never a case of mitigation in the sentence.
The prosecution having proved its case beyond any shadow of reasonable doubt, the learned trial Court has rightly convicted and the learned High Court has rightly maintained the conviction as well as the sentence. There being no merit in the petition, it is hereby dismissed and leave to appeal refused.
(Aliya Sattar Chaudhry) Petition dismissed.
PLJ 2006 SC 1232 [Appellate Jurisdiction]
Present: Tassaduq Hussain Jillani, Ch. Ijaz Ahmed & Syed Jamshed Ali, JJ.
KHAN alias KHANI and another--Appellants
versus
STATE--Respondent
Criminal Appeal No. 93 of 2002 in Criminal Petition No. 356-L of 2001, decided on 26.6.2006.
(On appeal from the judgment dated 30.4.2001 passed by Lahore High Court, Lahore in Crl. A. No. 497/1996 and M.R. No. 70 of 1996).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 34--Constitution of Pakistan, 1973, Art. 185--Conviction and sentence--Lesser punishment--Prayer for--All three witnesses were consistent in their statements inspite of facing lengthy cross-examination--Minor contradictions and discrepancies between testimony of eye-witnesses and that of other prosecution witnesses in murder case do not materially affect the testimony of eye-witnesses which otherwise appeared to be true and genuine meaning thereby discrepancies in statement of eye-witnesses are of no importance--Courts below had believed ocular account furnished by three witnesses with cogent reasons and also justified to award capital punishment--Both Courts below have recorded concurrent conclusions qua the guilt of the appellants as the appellants had murdered two persons in brutal manner without any Substantial motive by inflicting fire arm injuries--Held: Statement of eye-witnesses inspire confidence as they were inconsistent in their statements subject to lengthy cross-examination--Held further: There is no valid reason to reduce sentence of death into life imprisonment--Appeal has no merit and is accordingly dismissed.
[Pp. 1235, 1236 & 1238] A, B & C
Ch. Muhammad Anwar, Bhinder, ASC for Appellants.
Mrs. Afshan Ghazanfar, A.A.G. Punjab for State.
Sardar Muhammad Latif Khan Khosa, ASC for Complainant.
Date of hearing : 26.6.2006.
Order
Ch. Ijaz Ahmed, J.--The appellants alongwith their acquitted co-accused namely Ayub and Muhammad Yar were tried for Qatl-e-Amd of Dewan Riaz Ahmad and Ahmad Din alias Manzoor Ahmad under Section 302(b)/34 of PPC and sentenced to death each also directed them to pay compensation of Rs. 80,000/- each to the L.Rs of the aforesaid deceased vide judgment dated 26.5.1996 passed by the learned Additional Sessions Judge, Depalpur. Their conviction and sentence were maintained by the learned High Court on their appeal vide impugned judgment dated 30.4.2001. Appellants being aggrieved filed Crl. Petition No. 356-L of 2001. Leave was granted by this Court vide order dated 18.3.2003 in the following term:
"The motive as alleged in the FIR was old enmity but learned counsel for the petitioners submitted that the prosecution has failed to prove any such enmity on the record. The incident took place in a "Mela". Learned counsel for the petitioners submitted that the recovery of weapon of offence was disbelieved by the Courts below, though even if believed it would not have been substantial evidence. He submitted that from the manner in which the incident took place, it appears that it was a sudden flare and as to what was the motive, the same is shrouded in mystery, therefore, it is a case of lesser punishment which aspect of the case has not received consideration of the Courts below. Leave is granted to consider inter alia, the question of quantum of sentence".
(a) Nazeer Ahmad v. The State (1999 SCMR 396)
(b) Muhammad Riaz and another v. The State (1999 SCMR 976).
(c) Ulfat Hussain alias Ulfar Nawaz v. The State (2001 SCMR 652).
The prosecution has failed to prove the conspiracy against conspirators which facts proved that the two deceased were killed without premediation in heat of moment. Motive was not proved and in fact immediate motive shrouded in mystery. Medical evidence contradicts the ocular account. One injury is attributed to each of the appellant and learned High Court erred in law at the time of awarding capital punishment to the appellants inspite of the fact that the aforesaid circumstances were sufficient to convert, the sentence of death to life imprisonment. He maintains that eye-witnesses have no enmity with the appellants which does not mean that their statements are trust worthy. He relied upon Muhammad Iqbal v. Abid Hussain and others (1994 SCMR 1928). That medical evidence or recovery evidence only proves the weapons used, the number and nature of injuries but not the identity of the assailants. In support of his contention, he relied upon Ahmad v. Muhammad R.A. No. 92/2002, Nawaz and others (PLD 1989 SC 440) and Abdul Rehman v. The State (1998 SCMR 1778).
Learned counsel for the respondent has supported the impugned judgment. He maintains that FIR was lodged promptly within one hour mentioning the role of each of the appellant. Both the Courts below had given findings of fact that eye-witnesses were present at the spot who had explained their cogent reasons for their presence at the spot at the relevant time. Mere non-proving of the fact that Punchayat was not convened would not effect the prosecution case in any manner. The prosecution proves the case against the appellants beyond any shadow of doubt and the version of the defence was rejected by both the Courts below with cogent reasons.
We have considered the submissions and perused the record. It is admitted fact that both the Courts below had believed the statement of the eye-witnesses as the eye-witnesses had explained their presence at the place of occurrence. All the contentions raised before us are exactly the same which were raised before the learned courts below. The learned trial Court rejected the same vide paras 16 to 27. The said pleas were re-agitated before the learned High Court which were rejected after judicial application of mind by the learned High Court in paragraphs Nos. 21 to 26 of the impugned judgment coupled with the fact that the incident has been admitted by the appellants as is evident from reply of Khan alias Khani in reply of Question No. 5. Both the Courts below were justified to reject the defence version on the ground that when eye-witnesses appeared before the trial Court, the defence version was not suggested to them which plea was taken only at the fage-end of the trial and even this plea was not taken before the investigating officer at appropriate time. Both the Courts below were justified to accept the prosecution version and reject the defence version as the appellants failed to prove the plea in terms of Article 121 of the Qanun-e-Shahadat Order, 1984. All the three witnesses were consistent in their statements inspite of facing lengthy cross-examination. It is a settled law that minor contradiction and discrepancies between testimony of eye-witnesses and that of other prosecution witnesses in a murder case do not materially affect the testimony of eye-witnesses which otherwise appeared to be true and genuine meaning thereby the discrepancies in the statements of eye-witnesses are of no importance. The statements of eye-witnesses are in consonance with the medical evidence. It is a settled law that absence of motive is no ground to award lesser punishment as the law laid down by this Court in Haroon Rashid and 6 others v. The State (2005 SCMR 1568). It is a settled law that weakness of motive or its absence might not be helpful to accused when unimpeachable ocular evidence is available as the law laid down by this Court in Moazam Shah v. Mohsin Shah and another (PLD 2001 SC 458). It is settled law that each and every case is to be decided on its own peculiar circumstances and fact and verdict given in a criminal case must be confined to the facts of the reported case and cannot be universally apply to all cases. See Allah Wadhayo and another v. The State (2001 SCMR 25). The contention of learned counsel for the appellants that their death penalty be converted into life imprisonment as the appellants had committed offence under the instigation of their father has no force. In the cited judgment of Muhammad Riaz's case Supra, petitioner was of tender age whereas in the present case, the appellants were aged about 30 and 32 years respectively. In the cited case of Ulfat Hussain supra, it is also distinguishable on facts and law as evident from the operative part of the cited judgment which is to be following effect:
"We are inclined to take a lenient view as the appellant and the two deceased were close relatives and there was no enmity between them; there was no premeditation because the appellant was empty-handed".
"In case reported as Abdul Wahab alias Rehra v. The State (1999 SCMR 1668), this Court taken into consideration more than 20 cases referred to therein held that motive remained shrounded in mystery by itself was not a mitigating circumstance for lesser sentence. It was also held that motive would not play any effective role on the question of sentence, when it was established beyond reasonable doubt from the evidence that accused had committed premeditated and cold-blooded murder in a brutal manner. In this reported matter, an observation recorded in Appeal No. 174 of 1995 (Noor Muhammad v. The State) was quoted, which is as under:--
"However, we may observe that the people are losing faith in the dispensation of criminal justice by the ordinary criminal Courts for the reason that they either acquit the accused persons on technical grounds or take a lenient view in awarding sentences. It is high time that the Courts should realise that they owe duty to the legal heirs/relations of the victims and also to the society. Sentences awarded should be such, which should act as a deterrent to the commission of offences.
As a result, we find no mitigation circumstance to commute the death sentence, a legal and appropriate sentence awarded by the trial Court and confirmed by High Court."
Besides, such cases must be seen with reference to the interest of society and be condemned as such. To curb crime is the need of hours. One of the object of criminal justice is to award exemplary punishment to offenders in order to deter them from committing crimes and in this way also to serve a stern warning to those members of society, who have behavioural leaning towards criminality".
Both the Courts below have recorded concurrent conclusions qua the guilt of the appellants as the appellants had murdered two persons in brutal manner without any substantial motive by inflicting fire-arm injuries. In the interest of justice and fairplay we have re-examined the evidence on record and we find that conclusions arrived at by the Courts below are valid and susta Sinable in the eye of law. Therefore, same is upheld. In this view of matter we do not find any valid reason to reduce the sentence of death into life imprisonment. Therefore both the Courts below were justified to award death sentence. See Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others (2005 SCMR 427). It is admitted position that general reluctance to appear as witness and to tell the truth is a lamentable situation in this country. See Muhammad Iqbal alias Javed Iqbal v. The State (PLD 1976 SC 291) and Yaqub Shah v. The State (PLD 1976 SC 53). This Court does not, normally, interfere in the concurrent conclusions arrived at by the Courts below while exercising power under Article 185(3) of the Constitution as law laid down in Noora and another vs. State (PLD 1973 SC 469). In the present case, the statement of eye-witnesses inspite confidence as they were inconsistent in their statements subject to lengthy cross examination.
Accordingly, the appeal has no merit and the same is dismissed.
(Aliya Sattar Chaudhry) Appeal dismissed.
PLJ 2006 SC 1238 [Appellate Jurisdiction]
Present: Javed Iqbal & Hamid Ali Mirza, JJ.
RIAZ HUSSAIN--Petitioner
versus
KHUDA DAD etc.--Respondents
Civil Petition No. 3293 of 2003, decided on 11.11.2005.
(On appeal from the judgment dated 8.10.2003 of Lahore High Court, Rawalpindi Bench, passed in C.R. No. 179-D of 1998).
Civil Procedure Code, 1908 (V of 1908)--
----O. XXIII, R. 3--Compromise of suit--Validity--Petitioner was not present in person and so called compromise was never signed by heirs--Statement of counsel was also silent as to prior consultation with petitioner before recording such statement--Power of attorney also did not confer unfettered or unbridled, whimsical, prejudicial and detrimental manner against the interest of his client--Held: Courts are bound to see that such compromise is signed by the concerned parties preferably before the Court--Case remanded. [Pp. 1239 & 1240] A & B
2005 SCMR 1123, ref.
Pirzada Noor Ali Shakoori, ASC for the Petitioner.
Ch. Mahmood Akhtar, ASC Mr. Arshad Ali Ch. AOR for Respondents Nos. 2 to 12.
Date of hearing : 11.11.2005.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 8.10.2003 whereby the civil revision petition preferred on behalf of petitioner has been dismissed.
The facts of the case have been mentioned elaborately in the judgment impugned hence reproduction whereof would be of no use.
Heard, Mr. Pirzada Noor Ali Shakoori, learned ASC on behalf of petitioner and Ch. Mahmood Akhtar, learned ASC for Respondents Nos. 2 to 12 at length, scanned the entire record and perused the judgments of learned trial and appellate Courts as well as the judgment impugned. The prime contention of learned ASC on behalf of petitioner is that no consent whatsoever was given to the learned counsel to get the controversy resolved by means of a compromise, which apparently is detrimental to the interest of petitioner. The pivotal question which needs determination would be as to whether the compromise in question could have been executed without having the consent of the petitioner by his counsel at his own? The statement of learned counsel got recorded by the Court and subsequently treaded as compromise is reproduced herein below for ready reference:--
A bare perusal of the said statement would reveal that the petitioner was not present in person and the so called compromise was never signed by him. The statement of learned counsel is also silent to the effect as to whether the petitioner was ever consulted before recording such statement. The power of attorney (Wakalat-nama) does not confer unfettered or unbridled powers on the learned counsel for the petitioner to act in a capricious, whimsical, prejudicial and detrimental manner against the interest of his client. It is also pointed out that the bounden duty of the Court is to see that such a compromise is signed by the parties concerned preferably before the Court. It has been observed in the same wake of events that the land entered vide Mutation No. 1609 does not belong to Nawaz but Syed Bibi. How a compromise could be made qua the said land in the absence of its owner or legal heirs? This Court in Inayat v. Altaf Ali (2005 SCMR 1123) while examining a similar situation where a suit was withdrawn by a counsel without having the consent of parties concerned has observed as follows:
"The only point involved in this case is, whether the learned counsel appearing for Respondent No, 1 had the authority to withdraw the suit in the circumstances of the case in hand. The learned Single Judge of the High Court has dealt with this matter in extenso and has come to a definite conclusion that no such instructions were ever imparted by the lady to her counsel nor they are reflected from the power of attorney executed by her. The learned Single Judge, after advancing valid reasons, has exercised the discretion properly and no exception can be taken to the same."
"For the reasons to be recorded separately this petition is converted into appeal, judgment and decree impugned is set-aside and matter remanded to the learned High Court to decide afresh after affording opportunity of hearing to all concerned preferably within a period of six months."
(Javed Rasool) Case remanded.
PLJ 2006 SC 1240 [Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Ch. Ijaz Ahmad and Syed Jamshed Ali, JJ.
KHAIR MUHAMMAD--Petitioner
versus
MUHAMMAD HUSSAIN and others--Respondents
Civil Petition No. 5-Q of 2005, decided on 19.4.2006.
(On appeal from the judgment dated 22.11.2004 passed by High Court of Balochistan, Quetta in C.R. No. 276 of 2002).
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 11--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Decision of two civil suits--One decree challenged but not the other--Effect of omission--Non-challenged decree will separate as res-judicata--Contention of--Validity--The issue as to the effect of omission to challenge the second decree followed by a single judgment has been subject matter of a serious debate before High Courts--Held: One appeal against the decree passed was sufficient to get rid of the adjudication made by the single judgment and the un-appealed decree did not operate as res-judicata. [Pp. 1243 & 1249] B, C & D
(ii) West Pakistan Urban Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Constitution of Pakistan, 1973, Art. 185(3)--Landlord after eviction of tenant/petition filed suit for recovery--Petitioner also filed a suit of same nature--Both suits consolidated and disposed of--Held: Entitlement of--Despite passing of two decrees, appeal was filed against one decree only which was not maintainable because the decree was not challenged operated as res-judicata--Contention of--Validity--Main controversy was decided by the trial Court which was reversed by the First Appellate Court--Thus as against the decree of trial Court which was verbatim copy of the decree sheet the decree of First Appellate Court will prevail--It was a case in which there was one decision followed by separate decrees--Decree passed in appeal by First Appellate Court would have precedence over the decree passed by trial Court--No injustice had been done in view of the adjudication of the First Appellate Court and High Court that landlords were entitled to rent for the area of specified sq.ft--Petition was dismissed. [Pp. 1242, 1243 & 1249.] A, E, F & G
AIR 1927 Lahore 289; ILR 29 Madras 333; AIR 1946 Oudh 33; AIR 1953 SC 252; PLD 1957 (W.P.) Peshawar 129; 1992 SCMR 979 and PLD 1961 (W.P) Karachi 38, relied.
1992 MLD 771; PLD 1961 Dacca 344; 1993 CLC 1367 and 1989 MLD 3663.
Mr. M.W.N. Kohli, AOR for the Petitioner.
Respondent No. 1 in person.
Mr. Kamran Murtaza, ASC for Respondent No. 4.
Date of hearing: 19.4.2006.
Order
Syed Jamshed Ali, J.--Leave is sought against the judgment dated 22.11.2004 of the learned High Court of Baluchistan, Quetta. It arises out of the following circumstances.
"It is declared that the land-lord Babu Abdul Haleem was/is entitled to receive the only rent to the extent of 900 Sq. ft. belong to him while tenant Khair Muhammad is only to receive back rent paid and deposit to the extent of 1350 Sq. ft. of the adjacent area which belongs to Q.D.A. Department. However, the prayer of the decree regarding expenses incurred in construction and payment of PAGRI of the tenant Khair Muhammad is declined. The Civil Court has no power to fix the fair rent of an area falls under Rent Restriction Ordinance, therefore, both the parties at liberty to approach the Rent Controller for determination of the fair rent regarding 900 Sq. ft. covered area and 1350 Sq. ft. adjacent area and after decision of that application, they approach for execution of decree passed by this Court".
The respondents filed an appeal against the judgment and decree passed in their suit. The learned First Appellate Court found that the area of 1350 Sq. ft. did not belong to the Q.D.A. and the area of the Q.D.A., on which illegal construction was raised by the petitioner, was not included in the area leased out to the petitioner. With this finding, the appeal was allowed and the respondents-land lords were held entitled to the rent claimed by them for 1350 Sq. ft. The revision petition filed by the petitioner was dismissed vide judgment dated 22.11.2004 which is impugned in this petition.
The only contention of the learned counsel is that the suit of the petitioner was numbered as 55-A/2001, while that of the respondents was 54-A/2001, yet separate decrees were passed in both the suits but the decree passed in Suit No. 55-A was not challenged with the result that appeal against the decree passed in the Suit No. 54-A was not maintainable because the decree in the Suit No. 55-A/2001 operated as res judicata.
The submission made has been considered. Apart from the fact that it was not pressed before the learned High Court at the time of hearing, it has otherwise no merit. In both the suits, the main controversy was whether the respondents were entitled to receive rent in respect of 1350 Sq. ft. It was decided by the trial Court in favour of the petitioner in his suit which was reversed by the learned First Appellate Court. Thus, as against the decree of the learned trial Court in Suit No. 55-A which was verbatim, copy of the decree sheet in Suit No. 54-A, the decree of the learned First Appellate Court of appeal will prevail. Thus, in the circumstances of the case, it was not necessary for the respondents to challenge the decree passed in the suit of the petitioner to claim the same relief which they could obtain in the appeal against the decree passed in their suit. It was a case in which there was one decision followed by separate decrees. It was more a matter of form than of substance.
The issue as to the effect of omission to challenge the second decree followed by a single judgment has been subject-matter of serious debate before the High Courts of Madras, Patna, Calcutta, Allahabad, Rangoon, Oudh, Lahore and of this Court. The first important case to be noted is a full bench judgment of the Lahore High Court in Mt. Lachhmi vs. Mt. Bhulli (AIR 1927 Lahore 289). This is an exhaustive survey of the precedent cases. In the said case, there were two cross suits about the same subject-matter between the same parties which were consolidated and one judgment delivered in both the cases but the decrees drawn were separate. An appeal was filed against only one of the decrees by one plaintiff in her suit. It was held by majority judgment that the un-appealed decree did not operate as res judicata. It will be appropriate to reproduce relevant extracts from the said judgments;
"It must, therefore, be settled at the very outset whether S. 11 applies to appeals or whether its operation is limited only to suits as meaning proceedings in an action in Courts of the first instance as distinguished from proceedings in appellate Courts. After a careful examination of the section, I have reached the conclusion that it applies to suits only and not to appeals."
"Let us see what are the fundamental principles of res judicata and how do they affect the present case. It has already been indicated that the foundation of the rule, as understood both by ancient and modern lawyers is that a question must be once fairly and finally tried by a competent Court and after this has been done all further litigation about it should be concluded for ever between the parties. The maxim is, as has been stated above, that "no one shall be vexed twice over the same matter". This, to my mind, presupposes that the issue has been once fairly and finally tried in a former litigation, which was independent of the proceedings in which the matter is again in dispute. The essence of the rule seems to me to be that the two proceedings should be so independent of each other that the trial of one cannot be confused with the trial of the other. Where two suits, having a common issue, are, by consent of parties or by order of the Court, tried together, the evidence being written in one record and both suits disposed of by a single judgment, can it be said that there have been two distinct and independent trials? There being but one finding and one judgment, on what principle can the hearing of the appeal in which this finding and this judgment are under consideration be barred merely because no appeal has been filed in the connected suit which was disposed of by that very judgment? There has been, in substance as well in form, but one trial and one verdict, and, I venture to think, it will be a travesty of justice to stifle the hearing of the appeal against such a judgment on the ground that the findings contained in it operate as res judicata. In such a case there can be no question of the successful party being "vexed twice" over the same matter, nor does the hearing of the appeal in any way militate against any rule of public policy, which requires that there must be an end of litigation. There is not only nothing here to attract the principles underlying the rule of resjudicata, but, on the other hand, it seems to me that the acceptance of such a plea in such circumstances would strike at the very root of the basic conception of the doctrine which requires that a party must have at least one fair trial of the issue resulting in a decision by the Court of ultimate appeal as allowed by the law for the time being in force."
"Another point remains to be noticed, viz., that even though the two suits were tried together, and may be taken to have been disposed of by one judgment, yet two decrees were actually passed, one in each suit, and as only one such decree has been appealed against, the other remains outstanding and has become final. It is suggested, that if the appeal is allowed to proceed and is successful, an anomalous and embarrassing situation of having two inconsistent and contradictory decrees on the record of the Court might be created. This argument, which at first sight appears to be unanswerable, is the basis of the leading Allahabad case reported as Zaharia v. Debia (1). It also found favour with my learned brother Addison in Sulaiman v. Partab (36) and has the high authority of the great Calcutta Judge, Sir Asutosh Mookerjee, in support of it: vide Isup Ali v. Gour Ghandra Deb (37). I have, therefore, given much careful and anxious thought to it, and it is with a great deal of hesitation and difference that I have found myself unable to accept it. It is necessary to emphasize here what has been stated already, that res judicata is either estoppel by verdict or estoppel by judgment (or record), and there is no such thing as estoppel by `decree'. As remarked by Caspersz in para, 575 of his book on Estoppel, "the decree itself is not the test of what is or is not res judicata, but the question in each case is what did the Court decide". The determining factor is not the decree but the decision of the matter in controversy".
"That the circumstance that a decree in a former suit is outstanding in favour of the defendant is in itself insufficient to support the plea of res judicata is further clear from the Privy Council decisions in Sheo Sagar Singh v. Sita Ram Singh (38) and Abdullah Asghar Ali v. Ganesh Das (39), in each of which, though the decree in the former suit was subsisting in favour of the defendant, the subsequent suit was allowed to proceed as the matter could not be said to have been finally decided therein. In determining, therefore, whether the plea has any force, attention must be concentrated, not upon the fact that there is a record of an outstanding decree in favour of a party, but upon the question whether there has been an independent decision upon which the record was based".
"Looking at the matter from another standpoint we arrive at the same conclusion. When the parties decide to have the two suits tried together, the strictly proper procedure would have been to pass a formal order of consolidation, and it that had been done only one decree would have been prepared and one appeal would have been sufficient. Where this formality has not, however, been gone through, but a virtual consolidation of the suits has been (as suggested above) brought about, I think the position of the parties should not be in any way made worse. As pointed out in Damodar Das v. Sheoram Das (11), which has been approved in Ghansham Singh v. Bhola Singh (9), there is in such a case in reality "but one decree, though written in duplicate" on two different pieces of the paper, one of which is attached to the record of each suit. Looking, therefore, to the substance of the matter, rather than to its form, one appeal should be considered to be sufficient. I am, therefore, of opinion that no "estoppel by record" is created by the omission to appeal against the second decree in such a case".
"For it is now well settled that, if two or more conflicting decrees happen to be passed regarding the same property in two different proceedings, it will be the last one which will prevail. In such cases the later decision should be taken as superseding the earlier, and is thenceforward the only effective adjudication"
"The result of the examination of the rulings of the various High Courts may be summed up as follows:
(a) The Madras High Court is whole heartedly in favour of the right to proceed.
(b) The Allahabad High Court has held different views at different times, but the tendency of the latest decisions is in favour of the right to proceed.
(c) The opinion of the majority in Mariam Nissa Bibi v. Joynab Bibi (8) is in favour of the right to proceed. In the Calcutta Court subsequent decisions of Division Benches (none of which, it is significant, has found its way into the authorized Reports) have taken the contrary view, but I venture to think that the reasoning of these decisions in so far as it conflicts with the earlier case cannot be supported.
(d) The High Courts of Patna and Rangoon have followed the earlier decisions of the Allahabad High Court but these latter are no longer considered to be authoritative in that Court itself.
(e) In the Punjab the rulings are not uniform, but on the whole, it seems to me that though much of the reasoning of the Full Bench judgment in Jogul Kishore v. Chammo (2) cannot be supported the conclusion arrived at in that case is correct".
"Technically, no doubt, the tenant's appeal ought to have been in both suits and the proper course for the District Judge to have taken would have been to require the appellant to amend his memorandum of appeal so as to make it an appeal in both suits; but the fact that the tenant only appealed in his own suit and did not prefer an appeal in the landlord's suit did not preclude the District Judge from deciding upon the merits the question raised in the appeal which was before him. The subject matter of the litigation in the two suits was the same, the evidence was the same, and the two suits were tried together. The reasons for which the tenant's suit was dismissed were the reasons for which judgment was given in favour of the landlord in his (the landlord's) suit."
(Underlining is ours to supply emphasis)
"(i) Where two suits between the same parties involving common issues are disposed of by one judgment but two decrees, and an appeal is preferred against the decree in one but it is either not preferred in the other or is rejected as incompetent does the matter decided by the latter decree become res judicata, so that it cannot be re-opened in appeal against the former?
After examining the entire case-law, the learned Judges answered the question in the negative and stated:
"If the consolidated judgment in suits between the same parties wherein common issues are raised and disposed of, forms the foundation of two decrees and it is reopened so as to necessitate the re-examination of the grounds on which the decision rests, it can scarcely be said that it represents in any sense a final adjudication between the parties. The suggestion that the single judgment must a fiction be regarded as two independent separate judgments governing two separate decrees between the same parties appears to us to be more imaginary than real. If the grounds for decision are common and are attacked as erroneous, the finality cannot be invoked for supporting a plea of res judicata till it has in fact become final. In the case before us the subject-matter of the litigations as well as the evidence in both cases is the same. The trial is one trial and the reasons, which necessitated the dismissal of one case, are also the reasons which impelled the Court to pronounce in favour of the plaintiff in the other. If the object of the appeal is to get rid of this adjudication, it is only the technical consideration of form which can alone be restored to for the success of the plea of res judicata. The success of the plea of res judicata. The existence of two decrees is merely for the sake of complying with the barest formalities of law, and it will, in our judgment, be the negation of the principle to say that a matter, which is still res integra, should operate nevertheless as res judicata. The forceful objection of Sir Aushotosh Mukerji in 37 C.L.J. 184 that to permit one appeal in these circumstances was tantamount to allow the decision, from which no appeal was filed, to be "collaterally attacked or implicitly ignored" seems, if we may say so with very great respect, to over look the fundamental feature of the case, namely that there is only one trial, one evidence and one decision".
The rule laid down by the learned full bench of the Lahore High Court in Mt. Lachhmi supra was approved in The State of Bombay and another vs. The United Motors (India) Ltd. and others (AIR 1953 SC 252).
In the full bench judgment of the Peshawar High Court in Muhammad Zaman Khan vs. Inzar Gul and others (PLD 1957 (W.P.) Peshawar 129, the rule was explained as under:
"Where two or more suits have common issues, are consolidated by the order of the Court, are tried at one and the same time, only one record of issues and evidence is prepared in all of them and finally they are adjudicated upon ad disposed of by one single judgment, the Court applying its mind only once to all cases collectively treating them as one case, then in substance as well as in form there will most definitely by one trial and one verdict in all those suits. To hold otherwise would, if I may venture to say so strain credibility and would amount to flying in the face of the realities."
In this case the judgment in the case of Mst. Lachmi supra was followed.
"After hearing the learned counsel for the parties sand going through the records, we find that in fact as the memo of appeal filed before the District Judge shows at the very first opportunity the judgment in both the suits had been challenged. It was not an appeal in one case and not in the other. Copy of the decree sheet of Civil Suit No. 6 had been filed but not of Civil Suit No. 7 of 1972. It at that stage by examining the memorandum of appeal corrective steps had been taken and appellants asked to file copy of the decree sheet ad judgment separately in Civil Suit No. 7 of 1972 in order to bifurcate the composite attack, no such anomaly would have resulted. The failure here and at this stage was partly of the Court and its functionary. The parties should have known better. All such technical failures could be remedied if properly attended to promptly. Even at the argument stage, the District Judge should have deferred the decision in order to achieve the same and after allowing the opportunity to the parties to file the same. There was no question of treating the appeal to be one confining to Civil Suit No. 67 of 1972 when in fact the substance of the appeal attacked the decisions in both the suits."
(Underlined to supply emphasis)
The learned Karachi High Court in Allahdin and others vs. Jamshed Aderji Dubash (PLD 1961 (W.P.) Karachi 38) took the similar view.
It would not be out of place to note the contrary view. The first is expressed in the judgment of the Karachi High Court in Ghiyasuddin and another vs. Muhammad Ismail (1992 MLD 771). This is based on Jamini Kanta Roy Chowdhury and others vs. Aswini Kumar Haldar and others (PLD 1961 Dacca 344). The other judgment of the Lahore High Court is Shukar Din and others vs. Nazir Ahmed and others (1993 CLC 1367). Similar view was also taken by the learned division bench of the Lahore High Court in Sh. Muhammad Riaz Diwana through his legal heirs vs. Sh. Muhammad Sharif and others (1989 MLD 3663).
From perusal of the above precedent cases, it is clear that preponderance of opinion has been in favour of the view taken by the learned full bench of the Lahore High Court in Mt. Lachhmi's case. We are of the opinion that in the facts and circumstances of the case, one appeal against the decree passed in the suit of the respondents was sufficient to get rid of the adjudication made by the single judgment and the un-appealed decree did not operate as res judicata. It is also held that the decree passed in appeal by the learned first Court of appeal shall have precedence over the decree passed by the trial Court in Suit No. 55-A.
Therefore, in the circumstances of the case, no injustice has been done in view of the adjudication of the first Court of appeal and the learned High Court that the respondents-landlords were entitled to the rent for the area of 1350 Sq. Ft. We therefore, do not find any merit in this petition which is dismissed and leave declined accordingly.
(M. Ajmal Rana) Petition dismissed.
PLJ 2006 SC 1249 [Appellate Jurisdiction]
Present: Javed Iqbal, Mian Shakirullah Jan, Raja Fayyaz Ahmed, Dr. Allama Khalid Mehmood & Dr. Rashid Ahmad Jullundhari, JJ.
JEHANDAD and 2 others--Petitioners
versus
STATE & another--Respondents
Crl. Petition 35(S) of 2005, decided on 31.1.2006.
(On appeal from the judgment dated 12.5.2005 of the Federal Shariat Court, passed in Crl. M. No. 77-I of 2004).
(i) Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Petitiners awarded death sentence and appeal was pending before Federal Shariat Court--Crl. Misc. application for summoning record of Military Court and writ petition--Opportunity be afforded for perusing the same enabling petitioners to evolve a strategy for defence--Dismissal of petition--Assailed--Validity--Trial has been concluded and evolving of a defence strategy at appellate stage was not understandable--Supreme Court were not aware how such aspect of the matter was portraited before trial Court and how it was determined--Whether any attempt was made to procure the requisite record during trial or any application was made to that effect, how it was determined, its impact and import, the question which squarely fall within the jurisdiction domain of Federal Shariat Court for determination and cannot be addressed by Supreme Court at that stage as it would be too pre-mature--Held: All proceedings conducted by Military Court were set aside by High Court and by Supreme Court which culminated into fresh trial which had been concluded and at moment appeal was pending adjudication before Federal Shariat Court which would be decided in accordance with law--Petition dismissed and leave refused.
[P. 1252] A & C
(ii) Constitution of Pakistan, 1973--
----Art. 185(3)--Interim Order--Challenge to--Leave to appeal--Order impugned was ad interim order which could not be assailed by invoking the provisions as contained in Art. 185(3) of the Constitution. [P. 1252] B
1979 SCMR 577; 1978 SCMR 334; 1968 SCMR 1143; PLD 1966 SC 717 & 1971 SCMR 702, JJ.
Mr. Fazal Ellahi Siddiqui, ASC & Mr. M.A. Zaidi, AOR for Petitioners.
Mr. M. Saeed Khan, Addl. A.G. NWFP for State.
Date of hearing : 3.1.2006.
Order
Javed Iqbal, J.--This petition for leave to appeal is directed against the order dated 12.5.2005 whereby the criminal misc. application Bearing No. 77-I of 2004 has been dismissed whereby it was requested that the entire record of the proceedings conducted by Military Court No. 88, Havelian and record of Writ Petition No. 4 of 1988 of the Peshawar High Court may be summoned and an opportunity be afforded to the petitioners for perusing the same enabling them to evolve a strategy for their defence.
Heard Mr. Fazal Ellahi Siddiqui, learned ASC on behalf of petitioners who mainly contended that the petitioners have been awarded death sentence merely on the basis of confessional statements which were never got recorded by them but considered by the learned trial Court and the evidence which favoured the petitioners has been ignored rather suppressed by the learned trial Court for the reasons best known to the learned trial Judge. The learned ASC on behalf of petitioners has referred various provisions of Qanun-e-Shahadat Order, 1984 such as Articles 76, 85 and 87. The relevant provisions of the Pakistan Army Act, 1952 were also referred. The learned ASC has read all the most entire evidence placed before this Court in Part-II of paper-book to substantiate his prime contention that the confessional statements were never got recorded and the petitioners were subjected to torture and maltreatment. It is pressed time and again that the petitioners could not have been denied access to the relevant record and proceedings conducted by the Military Court No. 88, Havelian, perusal whereof is inevitable to defend the petitioners and it is their legal right to have the copies of all the relevant record.
Mr. M. Saeed Khan, learned Additional Advocate General, NWFP entered appearance on behalf of the State and controverted the view point as canvassed at bar by the learned ASC for the petitioners and supported the order impugned for the reasons enumerated therein with the further submission that the legal provisions are being exploited to prolong the matter and more so against ad interim order no petition for leave to appeal is maintainable under Article 185(3) of the Constitution of Islamic Republic of Pakistan.
We have carefully examined the respective contentions in the light of relevant provisions of law, scanned the available record with the eminent assistance of learned ASC for the petitioners and perused the order impugned carefully. Let us make it clear at the out set that we are not deciding the question of guilt or innocence of the petitioners hence we are deliberately not dilating upon the merits of the case. The main persuasive factor for not touching the merits of the case is that the appeal preferred on behalf of the petitioners is pending adjudication before the learned Federal Shariat Court and all the contentions qua innocence of the petitioners can be raised for the consideration of learned Federal Shariat Court. It transpired from the scrutiny of the appeal that the prime contention of the learned ASC i.e. confessional statements were never recorded but result of torture, coercive measures and maltreatment, has been incorporated in the memo of appeal, relevant paragraphs whereof are reproduced herein below for ready reference:--
"3. That the so-called confessions were the result of torture and undue influence and all the accused were kept in police custody without obtaining genuine remand during the martial regime, even the marks of violence was shown by the accused to the magistrate and the concerned Court and this fact is mentioned in the judgment of the Peshawar High Court.
That so-called confessions are not supported with any independent evidence or with any recovery supported by any independent witness or with the medical evidence.
That the Magistrates who recorded the confessional statements were under the supervision of the administration who was interested in the present as in the present case IGP himself and other high-ups visited the crime village and they in order to satisfy the then Martial Law Authorities were interested to bring some story with some culprits."
The above mentioned grounds will definitely be considered by the learned Federal Shariat Court as may be deemed fit and appropriate. It is significant to note that the trial has been concluded and evolving of a defence strategy at appellate stage is not understandable. We are not aware how this aspect of the matter was portraited before the learned trial Court and how it was determined. Whether any attempt was made to procure the requisite record during trial of any application was made to that effect, how it was decided, its impact and import, what was the defence before learned trial Court, whether the confessional statements were got exhibited afresh or simply transferred from the record of previous proceedings by the Military Court, whether the learned Magistrate by whom the confessional statements were got recorded appeared before the learned trial Court and cross-examined, are the questions which squarely fall within the jurisdictional domain of learned Federal Shariat Court for determination and cannot be addressed by us at this stage as it would be too pre-mature. It is an admitted feature of the case that all the proceedings conducted by learned Military Court were set aside by the learned Peshawar High Court by means of judgment dated 21.1.1990 and by this Court vide order dated 31.3.1992 which culminated into fresh trial which has already been concluded and at the moment appeal is pending adjudication before the learned Federal Shariat Court which shall be decided in accordance with law and on merits. The fate of the said appeal cannot be adjudged during its pendency on conjectural presumptions. Even otherwise order impugned is ad interim order which cannot be assailed by invoking the provisions as contained in Article 185(3) of the Constitution of Islamic Republic of Pakistan. It is well settled by now that "entertainment of petition against interim order and hearing of case piecemeal, is not desirable. Petition in a case was dismissed as incompetent with observation that the petitioner would be at liberty to raise all or any of the contentions raised in the proceedings against the judgment finally disposing of appeal in case of its being decided against him." (Said Khan v. Aya Khan 1979 SCMR 577, Ismat Khanum Toor v. Riaz Ali Khan 1978 SCMR 334, Abdul Hamid v. Sher Alam 1968 SCMR 1143, Muhammad Sadiq v. Bashir Ahmed PLD 1966 SC 717, Zafarullah Khan v. Abdul Rehman 1971 SCMR 702).
In sequel to above mentioned discussion the petition being merit less is dismissed and leave refused.
(M. Ajmal Rana) Petition dismissed.
PLJ 2006 SC 1253 [Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Ch. Ijaz Ahmed & Syed Jamshed Ali, JJ.
Syed MUHAMMAD ARIF and others--Petitioners
versus
UNIVERSITY OF BALOCHISTAN & others--Respondents
C.P. No. 51-Q of 2004, decided on 17.4.2006.
(On appeal from the order dated 29.3.2004 passed by the High Court of Balochistan in C.P. No. 154/2002).
(i) University Grants Commission Act, 1974 (XXIII of 1974)--
----Preamble & Ss. 8 & 9--Constitution of Pakistan, 1973, Art. 185(3)--Higher Education Commission Ordinance, (LIII of 2000)--Preamble & Ss. 10 & 20--Petitioners applied for appointment as Professor and Associate Professor in the University--Selection Board recommended their names for appointment--Matter deferred by the Syndicate--Constitution of Committee--Selection Board after considering matter recommended that petitioners being non-Ph.D could not be considered for appointment--Constitutional petition dismissed by High Court--Assailed--Validity--University Grants Commission as well as Higher Education Commission had given directions in terms of their functions to all the Universities of the country for the purpose of appointment of Professor and Associate Professor having qualification of Ph.D--University had adopted the pay scales for the university teachers approved by the Federal Government in the year 1975, therefore, action of respondent was in accordance with law--University was very fair with the petitioners as they were provided chance to improve their qualifications but they could not improve--Petitioners could not point out that action of respondents was in violation of their rules and regulations, therefore, High Court was justified to dismiss the Constitutional petition--Petitioner's counsel had failed to point out any infirmity or illegality whereas the impugned judgment was in consonance with the law laid down by Supreme Court--Petition dismissed. [Pp. 1258, 1259 & 1260] A, B, D & G
2004 SCMR 35; 2006 PLC (CS) 110; 1992 SCMR 1093; 1984 SCMR 433; 1992 SCMR 2430 rel.
(ii) University Grants Commission Act, 1974 (XXIII of 1974)--
----Ss. 8 & 9--Higher Education Commission Ordinance, (LIII of 2000), Ss. 10 & 20--Appointment of Professor and Associate Professor--Recommendations of the Selection Board--Held: Recommendations of the Selection Board was not binding upon the Syndicate. [P. 1260] E
PLD 1973 SC 144.
(iii) Obiter Dicta--
----Our Constitution is based on Trichotomy and Supreme Court has only jurisdiction to interpret the law--Supreme Court has no jurisdiction to take the role of policy maker in the garb of interpretation. [P. 1260] F
PLD 1973 SC 49; PLD 1975 SC 667 and 1978 SCMR 327;
Mr. H. Shakeel Ahmad, ASC for Petitioners.
Mr. Ihsan-ul-Haq, ASC for Respondent No. 3.
Date of hearing : 17.4.2006.
Order
Ch. Ijaz Ahmad, J.--The brief facts out of which the present petition arises are that respondent university had issued advertisement/public notice in Daily "The Dawn" dated 12.4.1999 for filling the posts of Professor BS-20 and Associate Professor of BS-19 with the following qualifications and experience:--
"STATUTORY REQUIREMENTS:
PROFESSOR: Ph. D with fifteen years teaching/research experience in a recognized University, or Professional experience in the relevant field in a national or international organization. Eight research publications in journals of International repute. OR
Master's degree with eighteen years teaching/research experience in a recognized University or professional experience in the relevant field in a national or international organization. Eight research publications in journals of international repute.
ASSOCIATE PROFESSOR: Ph. D with ten years teaching/research experience in a recognized University, or Professional experience in the relevant field in a national or international organization. Five research publications in journals of International repute. OR
Master's degree with thirteen years teaching/research experience in a recognized University or professional experience in the relevant field in a national or international organization. Five research publications in journals of international repute.
The petitioners in obedience of aforesaid advertisement submitted their applications before the respondents. The respondents had scrutinized their applications and found their applications in accordance with rules and regulations of the respondent. Respondent had issued intimation/call notices to the petitioners for appearing before the selection board. The selection board had found them suitable and selection board recommended their name for appointment to the posts in question. The recommendations of the selection board were placed before the Syndicate in meeting held on 2nd December, 2000 and deferred the matter till next meeting of the Syndicate and sub-committee was also constituted to go through all the representations/included in the agenda of the present meeting pertaining to the minutes of the meeting of the selection board held on 26.8.2000 and submitted its findings for consideration of the Syndicate in its next meeting. Syndicate had referred the matter back to the selection board vide its meeting held on 14 and 15 of January, 2002. The selection board had reversed its earlier decision and send its recommendations to the extent to the Syndicate that petitioners being non-Ph.D could not consider for appointment for the posts in question in view of the earlier decision of the Syndicate wherein the University had adopted the decisions of the Government of Pakistan and University Grants Commission regarding appointments and only Ph.D candidates are eligible for the posts of the Professor and Associate Professor and Syndicate had no authority to grant relaxation after 1996 due to adoption, the existing rules amended. Petitioners being aggrieved filed Constitutional petition in the High Court of Balochistan which was dismissed vide impugned judgment dated 29th March, 2004. Hence, the present petition.
The learned counsel for the petitioners submits that action of the respondent is hit by Article 25 of the Constitution and this fact was not considered in its true perspective by the learned High Court in the impugned judgment. He further urges that selection board had recommended the case of the petitioners to the Syndicate and the Syndicate in its meeting held on 2nd December, 2000 approved the same and deferred the case for consideration of the Syndicate in its next meeting for issuing appointment letters to the petitioners as depicted from the affidavits attached by the petitioners alongwith the Constitutional petition and the learned High Court was not justified to ignore the affidavits of the members of the Syndicate. He further urges that selection board has no lawful authority to review its earlier decision. He further urges that Syndicate had referred the matter to the selection board under the dictate and dictation of the Higher Court Education Commission. Therefore, the action of the respondent was without lawful authority as the higher education commission had no lawful authority to issue directions to the respondents. In support of his contention he relied upon Fida Hussain's case (PLD 1995 SC 701). The Syndicate had already decided to give one time relaxation to the non-Ph.Ds, therefore, sub committee was not competent to re-open the issue.
The learned counsel for the respondents submits that respondent had not appointed a single person after 2000 who had not possessed the Ph. D. degree qua the posts of Professor and Associate Professor. He further urges that Syndicate had not approved the recommendations of the selection board as evident from the minutes of the meeting itself. He further urges that learned High Court was justified to ignore the affidavits filed by the petitioners alongwith the Constitutional petition with cogent reasons. He further urges that petitioners have not vested right to be appointed in violation of the rules and regulations of the respondents.
We have given our due consideration to the contentions of learned counsel of the parties and perused the record. It is deemed proper to reproduce the relevant provisions of University Grants Commission (Act XXIII) of 1974 and relevant provisions of Higher Education Commission Ordinance 2000 (LIII) to resolve the controversy between the parties:--
PREAMBLE OF UNIVERSITY GRANTS COMMISSION ACT (XVIII OF 1974)
An Act to provide for the establishment of a University Grants Commission.
Whereas, in the interest of educational planning and laying down a uniform policy as also to secure coordination between the universities, it is expedient to provide for the establishment of a University Grants Commission and for matters connected herewith or incidental thereto;
SECTION 8 OF UNIVERSITY GRANTS COMMISSION ACT XXIII of 1974.
Functions of the Commission.--For the promotion and co-ordination of University education, the determination and maintenance of standard of teaching, examination and research in Universities, the promotion of national unity and solidarity, the orientation of university programmes to national needs the commission may ... ...
(I) ... ... ...
(h) "Supervise generally the academic programme and development of various institutions of higher learning and education in the country;
(i) recommend to the universities the necessary for the improvement of university education";
(j) Perform such other functions, not inconsistent with the provisions of this Act, as may be prescribed or as may be incidental or consequential to the discharge of the aforesaid functions;
SECTION 9 OF UNIVERSITY GRANTS COMMISSION
Additional functions of the Commission.--For ascertaining the financial needs of a university or its standard of teaching, examination and research, the Commission may--(a) after consultation with the Federal Government or as, the case may be, a Provincial Government, and a university, cause a visitation of any department of the university to be made, in such manner as may be prescribed, by a person appointed by the Commission; and (b) after such visitation, communicate its views to the Federal Government or, as the case may be, Provincial Government and the university concerned, together with its recommendations, if any, regarding any action to be taken".
PREAMBLE OF HIGHER EDUCATION COMMISSION ORDINANCE, 2002.
Whereas in the interest of improvement and promotion of higher education, research and development it is expedient to provide for the establishment of a Higher Education Commission and for matters connected therewith or incidental thereto;--
RELEVANT PROVISION OF HIGHER EDUCATION COMMISSION.
SECTION 10. Power and functions of the Commission.--(1) For the evaluation, improvement, and promotion of higher education, research and development, the commission may--
(a) "Formulate policies, guiding principles and priorities for higher education institutions for promotion of socio-economic development of the country"
(b) Cause evaluation of the performance of Institutions;
(h) "Review and examine financial requirements of public sector institutions, approve and provide funds to these institutions on the basis of annual recurring needs as well as for development projects and research based on specific proposals and performance and while approving funds for a public sector institution the commission shall ensure that a significant proportion of the resources of the institution are allocated to research support and libraries"
(l) "facilitate the introduction of educational programmes that meet the needs of the employment market and promote the study of basic and applied sciences in every field of national and international importance in the Institutions;
(m) "Advice institutions in ensuring a proper balance between teaching and research;
(p) "Develop guidelines and facilitate the implementation of a system of evaluation of performance of faculty member of institution".
(q) "Provide guidelines as regards minimum criteria and qualifications for appointment, promotion, salary structure in consultation with the Finance Division and other terms and conditions of service of faculty for adoption by individual institutions and review its implementation;
(v) "guide Institutions in designing curricula that provides a proper content of basic sciences, social sciences, humanities, engineering and technology in the curricula of each level and guide and establish minimum standards for good governance and management of Institutions and advise the Chancellor of any institution on its statutes and regulations;
Section 20, Ordinance to override other laws.--The provisions of this Ordinance shall have effect notwithstanding anything to the contrary contained in law for the time being in force.
Section 22. Repeal.--(1) The University Grants Commission Act, 1974 (XXIII of 1974) is hereby repealed.
(b) Everything done, action taken, obligation or liabilities incurred, rights and assets acquired, persons appointed, or authorized jurisdiction or power conferred, endowment, bequests, funds, or trust created donations or grants made or issued under any provisions of the repealed Act, rules, applicable to the said UGC shall remain in force and be continued and, be deemed to have been respectively done, taken, incurred, acquired, appointed, authorized, conferred, created, made or issued under this Ordinance and reference in any document, to any provision of the said Act or rules made thereunder shall, so far as may be, be deemed to be reference to the corresponding provisions of this Ordinance or the rules made or deemed to have been made thereunder; and
(c) any rules made under the repealed Act shall, insofar as they are not inconsistent with the provisions of this Ordinance or the rules made thereunder having recourse to the various matters which by this Ordinance have to be regulated or prescribed by rules shall continue to be in force, until they are repealed, replaced, rescinded or modified in accordance with the provisions of this Ordinance; and
"The aforesaid provision was extended from time to time by the Vice Chancellors Committee. Lastly upto 13.2.1996 and thereafter the competent body did not extend the time. After the expiry of the said extended period, no university in the country was allowed to appoint non-Ph.D teachers to the posts in question. However, the respondent university filled posts in violation of the mandatory provisions. The said violation was brought into the notice of the Chancellors of the Universities in the country. Resultantly, the Chancellor of respondent university had asked the vice chancellor of respondent university qua the aforesaid violation and directed to taken action against the officials/officers who were responsible for the same. In view of the aforesaid direction the competent body of the respondent university had taken decision to fill posts in question having requisite qualification of Ph.D only".
(i) Zia Ghafoor Paracha's case (2004 SCMR 35).
(ii) Asad Bashir's case (2006 PLC (CS) 110).
This Court while interpreting similar statute of Punjab University had laid the principle that relationship of the employees of the University fell under the pharse of master and servant as laid down by this Court in University of Punjab vs. Ch. Sardar Ali (1992 SCMR 1093). The University is very fair with the petitioners as the petitioners were provided chance to improve their qualifications as evident from letter dated 1.6.1980 (page 11 of paper book-II with regard to Petitioner No. 1). Similarly to the Petitioner No. 2 as depicted from letter dated 15.12.1990 (page 12 of the paper book-II) but the petitioners could not improve their qualifications. In view of the prevailing circumstances in the world, the competent authority framed University Grants Commission Act and thereafter by repealing the said Act, 1974 has promulgated the Higher Education Commission Ordinance 2002 to compete with the world for improving the standard of qualification. It is the knowledge and knowledge only to compete with the world now a days due to which the aforesaid laws promulgated to improve the standard of education. It is a settled principle of law that for the purpose of maintaining a Constitutional petition it is the duty and obligation of the petitioners to point out that action of the respondents was in violation of their rules and regulations which the petitioners had failed to point out, therefore, learned High Court was justified to dismiss the Constitutional petition as the law laid down by this Court in Ali Mir's case (1984 SCMR 433). The learned counsel of the petitioners had failed to bring the case within the parameters prescribed in Article 25 of the Constitution. It is a settled principle of law that recommendations of the selection board are not binding upon the Syndicate as the law laid down by this Court in Dr. Habibullah's case (PLD 1973 SC 144). The learned High Court was justified to hold that case of Fida Hussain supra did not support the case of the petitioners and infact it was supported the stand of the respondents. It is a settled principle of law that our Constitution is based on Trichotomy as the law laid down by this Court in Ziaur Rehman's case (PLD 1973 SC 49) and this Court has only jurisdiction to interpret the law. This Court has no jurisdiction to take the role of the policy maker in the garb of interpretation as the law laid down by this Court in Zamir Ahmad Khan's case (PLD 1975 SC 667) & in Zamir Ahmad Khan's case (1978 SCMR 327).
In view of what has been discussed above, the petitioner's counsel has failed to point out any infirmity or illegality whereas the impugned judgment is in consonance with the law laid down by this Court in Federation of Pakistan v. Muhammad Irfan Baig (1992 SCMR 2430), therefore, the petition being devoid of any merit is hereby dismissed. Leave to appeal is declined. It is pertinent to mention here that petitioner's counsel had not pressed the petition to the extent of Petitioners Nos. 3 and 4 in view of order dated 31.10.2005 passed by this Court due to subsequent events.
(M. Ajmal Rana) Petition dismissed.
PLJ 2006 SC 1260 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi & Saiyed Saeed Ashhad, JJ.
JAHANZEB KHAN NIAZI & others--Appellants
versus
NOOR KHAN and others--Respondents
Civil Appeals Nos. 680 & 681 of 2002, decided on 1.2.2006.
(On appeal from the judgment of Lahore High Court, Lahore dated 26.3.2001 passed in R.S.A. 103 and 104 of 1986 respectively).
(i) Punjab Pre-emption Act, 1913 (I of 1913)--
----S. 8(2)--Constitution of Pakistan, 1973, Art. 185(3)--Pre-emption suits filed by respondents decreed by trial Court as well as appellate Court--High Court remanded the cases for deciding superior right of pre-emption inter se rival pre-emptors--Challenge to--Validity--Question to resolve the issue would relate to determination of the boundaries of Municipal Committee and Town--Notification issued regarding the inclusion or exclusion of an area from the local limits under the law governing the local Government might be relevant to determine the character of land situated in municipal areas but in consequence to such notification, agricultural land was not ipso facto exempted from the operation of pre-emption law unless a separate notification under the Pre-emption Act was issued--Right of pre-emption in the area of Town was extinguished vide notification issued under Pre-emption Act, 1913 but no evidence was brought on record showing the boundaries of Town at the time of issue of notification in question and unless the correct factual position regarding the limits of Municipal Committee and Town, would have ascertained the question relating to the pre-emptibility of suit land could not be properly determined--Right of pre-emption in respect of land situated in Town was certainly not exercisable after the issue of notification, u/S. 8(2) of the Punjab Pre-emption Act, 1913 but the matter relating to the limits of Town and the true character of property being purely question of fact, was not properly appreciated, therefore, Supreme Court consider it necessary to remand case the trial Court for proper determination of the mixed question of law and fact relating to the pre-emptibility of suit land--Finding of High Court on the issue relating to the pre-emptibility of suit land and set aside and case remanded to trial Court for fresh decision of in the suit in accordance with law--Appeals allowed. [Pp. 1263 & 1264] B, C, D & E
PLD 1982 SC 159.
(ii) Punjab Pre-emption Act, 1913 (I of 1913)--
----S. 8(2)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal was granted to consider whether through Notificaiton issued under Section 8(2) of the Punjab Pre-emption Act, 1913, no right of pre-emption existed in Town and this aspect has not been appreciated in its true perspective by the Courts below. [P. 1262] A
Mr. Allah Wasaya Malik, ASC for Appellants (in both cases).
Mr. Muhammad Munir Peracha, ASC for Respondent (in both cases).
Date of hearing : 1.2.2006.
Judgment
Muhammad Nawaz Abbasi, J.--These connected appeals by leave of the Court, have been directed against the judgment dated 26.3.2001 passed by a learned Judge in chamber in the Lahore High Court, Lahore whereby two separate regular second appeals arising out of a pre-emption suit were partly allowed and case was remanded to the trial Court for decision of superior right of pre-emption inter se rival pre-emptors. Leave was granted in these appeals vide order dated 30.4.2002 as under:--
`This order shall dispose of the above two petitions as they are directed against the judgment dated 26.3.2001 of a learned Single Judge of the Lahore High Court, Lahore whereby he affirmed the finding on Issue No. 1. holding the disputed land as pre-emptible and remanded the case to the learned Senior Civil Judge, Mianwali, to determine whether the respondents had superior right qua the petitioners.
The facts briefly stated are that the petitioners predecessor-in-interest Lt. Col. (Retd.) Muhammad Aslam Khan Niazi purchased the land in dispute measuring 3 Kanals 2 Marlas in the revenue estate of Ratta Khali, district Mianwali, vide registered sale-deed dated 7.8.1997. The respective respondents filed their suits for possession through pre-emption on the basis of their superior right being collaterals, co-owners in the suit land and owners in the estate. Both the suits were consolidated and issues were framed. The parties led their evidence and the trial Court vide its judgment dated 27.1.1983 decreed the suit. An appeal was filed by the petitioners and the First Appellate Court through its judgment dated 15.2.1986 maintained the trial Court's decree with a direction to deposit Rs. 6000/- extra for registration fee. The petitioners challenged the First Appellate Courts judgment through RSA Nos. 103 and 104 of 1986, both of which have been remanded to the learned Senior Civil Judge, Mianwali. However, the learned Single Judge of the Lahore High Court affirmed the determination qua the pre-emptibility of the disputed land, hence these petitions for leave to appeal.
It is inter alia argued by the learned counsel for the petitioners that through Notification No. 2280-S issued under Section 8(2) of the Punjab Pre-emption Act, 1913, no right of pre-emption existed in Mianwali Town. According to him, this aspect has not been appreciated in its true perspective by the Courts below.
Leave to appeal is granted to consider inter alia the above point. Status quo shall be maintained by both the parties till the disposal of the appeal emanating out of these petitions."
The learned Judge in chamber in the High Court having come to the conclusion that the suit land was pre-emptible, remanded the case to the trial Court only on the limited question for determination of the superior right of pre-emption inter se the rival pre-emptors whereas in the present petitions it has been contended with vehemence that the suit land was not subject to the law of pre-emption. The claim of the pre-emptor respondent herein, was that notwithstanding the issue of notification under Section 8(2) of Punjab Pre-emption Act, 1913 and notification issued under Punjab Local Government Ordinance, 1979, the suit land was not exempted form law of pre-emption whereas the assertion of petitioner was that the land being situated in Mianwali Town, was exempted from the operation of law of pre-emption by virtue of the notification dated 18.7.1918 issued under Section 8(2) of the Punjab Pre-emption Act, 1913 and in support of the respective contentions, the parties relied upon oral and documentary evidence. Learned counsel for the respondents placing reliance on Hafiz Hassan Muhammad and 2 others vs. Abdul Hameed and 2 others (PLD 1982 SC 159), contended that without specific proof of non existence of right of pre-emption, mere inclusion of an area in the municipal limits would not be sufficient to exclude the sale of agricultural land in the said area form law of pre-emption and vendees in the present case without bringing any evidence on record to show that the suit land acquired the status of urban immovable property, claimed exemption of law of pre-emption. Learned counsel argued that mere issue of a notification under Section 8(2) of Punjab Pre-emption Act, 1913 in respect of a local area or issue of a notificaiton under the municipal law for fixing the boundaries of municipal area for the purpose of local government would not as such be an evidence of change of character of agricultural land falling within the Municipal limits or that agricultural land stood exempted from operation of law of pre-emption.
The learned counsel for the petitioner on the other hand, on the basis of the notification issued under Section 8(2) of Pre-emption Act, 1913 argued that there was not ambiguity regarding the exemption of law of pre-emption in respect of the land situated within the limits of Mianwali town or municipal Committee Mianwali.
We having heard the learned counsel for the parties, have found that the real question requiring decision to resolve the issue would relate to the determination of the boundaries of Mianwali Municipal Committee and Mianwali town. The notification issued regarding the inclusion or exclusion of an area from the local limits under the law governing the local government may be relevant to determine the character of land situated in the municipal areas but in consequence to such notification, agricultural land is not ipso facto exempted from the operation of pre-emption law unless a separate notification under the pre-emption Act is issued. The right of pre-emption in the area of Mianwali Town was extinguished vide notification dated 8.7.1918 issued under Pre-emption Act, 1913 but no evidence was brought on record showing the boundaries of Mianwali Town at the time of issue of notification in question and unless the correct factual position regarding the limits of Mianwali Municipal Committee and Mianwali Town, would have ascertained the question relating to the pre-emptibility of suit land could not be properly determined.
The learned counsel for the parties have not been able to satisfy us from the existing record that the limits of Mianwali Town and the Municipal Committee Mianwali were same or not and whether the right of pre-emption in the area of suit land was or was not in existence at the time of sale. The right of pre-emption in respect of the land situated in Mianwali Town was certainly not exercisable after the issue of notificaiton, under Section 8(2) of the Punjab Pre-emption Act, 1913, but the matter relating to the limits of Mianwali Town and the true character of property being purely question of fact, was not properly appreciated, therefore, we consider it necessary to send the case back to the trial Court for proper determination of the mixed question of law and fact relating to the pre-emptibility of suit land.
In the light of foregoing discussion, we without further dilating on the matter, set aside the finding of the High Court on the issue relating to the pre-emptibility of suit land and send the case back to the trial Court for fresh decision of Issues Nos. 1 and 3 in the suit in accordance with law. The parties shall be allowed to produce additional evidence in support of their respective stance on the issues regarding the pre-emptibility of suit land and the superior right of pre-emption. These appeals in the above terms are allowed with no order as to costs.
(Rafaqat Ali Sohal) Appeal allowed.
PLJ 2006 SC 1264 [Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar & M. Javed Buttar, JJ.
HUSNAIN CONSTRUCTION CO. PVT. Ltd. and another--Petitioners
versus
SYED KHAWAR GARDEZI--Respondent
C.P. No. 157 of 2006, decided on 2.5.2006.
(On appeal from the judgment dated 29.11.2005 of the Peshawar High Court, Abbottabad Bench passed in F.A.L. No. 3/2004).
Industrial Relations Ordinance, 2002 (XCI of 2002)--
----Ss. 46 (6) & 48(1)--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Complaint was dismissed for want of prosecution--Application for restoration of the complaint was allowed--F.A.L. was dismissed by High Court--Assailed--Effect of--Determination the rights or obligation of parties--Validity--Legislature had not intended each every order of labour Court to appealable before High Court--Order of High Court was just and fair to which no exception can be taken--Case was not a fit for grant of leave to appeal. [P. 1265 ] A
Mr. Muhammad Tariq Tanoli, ASC and Mr. M.S. Khattak, AOR for Petitioners.
Nemo for Respondents.
Date of hearing : 2.5.2006.
Order
Faqir Muhammad Khokhar, J.--The respondent had filed a complaint under Section 46(6) of the Industrial Relations Ordinance, 2002 which was dismissed for want of prosecution. The application for restoration of the complaint was allowed by the Presiding Officer, Labour Court, Haripur vide order dated 13.3.2004. Therefore, the petitioners preferred F.A.L. No. 3 of 2004 which was dismissed by the Peshawar High Court, Abbottabad Bench, vide impugned judgment dated 29.11.2005.
The learned counsel for the petitioners argued that the respondent had no locus-standi and justification to file an application for restoration of the complaint. It was further contended that the Chief Executive of the Company of the petitioner was duly authorized to file an appeal before the High Court, against order dated 13.3.2004.
We have heard the learned counsel for the petitioners at some length and have also perused the available record.
Sub-section (1) of Section 48 of the Industrial Relations Ordinance, 2002 (hereinafter referred to as the Ordinance) provides, that the High Court may, on appeal, confirm, set aside, vary or modify the award or decision given under Section 46 or 33, a sentence having passed under clause (c) of sub-section (4) of Section 44 and shall exercise all the powers conferred by this Ordinance on the Labour Court, save as otherwise provided. The learned counsel failed to satisfy us as to how an order of restoration of complaint could be treated to be a decision within the meaning of Sections 46 or 48 of the Ordinance so as to be applicable before the High Court. In our view, order dated 13.3.2004 passed by the Labour Court was not in the nature of a decision or judgment as contemplated by Sub section (1) of Section 48 of the Ordinance. It did not have the effect of determining the rights or obligations of the parties. It appears that the legislature had not intended each and every order of the Labour Court to be appealable before the High Court. The impugned judgment of the High Court is just and fair to which no exception can be taken. Even otherwise, this is not a fit case for grant of leave to appeal.
For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly.
(Rafaqat Ali Sohal) Leave refused.
PLJ 2006 SC 1266 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday & Raja Fayyaz Ahmed, JJ.
FAISAL ASHFAQ & 2 others--Petitioners
versus
STATE and another--Respondents
Criminal Appeal No. 118 of 2005, decided on 24.5.2006.
(On appeal from the judgment dated 10.5.2002 passed by Lahore High Court, Lahore in Criminal Revision No. 41 of 1998).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 517--Pakistan Penal Code, 1860 (XLV of 1860), Ss. 109/248, 420, 468 & 471--Prevention of Corruption Act, 1947, S. 5(2)--Constitution of Pakistan, 1973--Art. 185(3)--Disposal of property--Transfre of State land in name of "M" under collusion of Patwari and other revenue authorities--Conviction of "A" by social Judge Anti-Corruption while no order could be passed against "M" due to his death during trial--Possession of land was ordered to be taken from "M" and stored to State--Decision upheld in appeal by High Court--Leave to appeal--Prayer for--Order for disposal of property, if act all, can be passed u/S. 517 Cr.P.C. only when trial is concluded--Property has been in name of "M" deceased who was accused but against whom trial never concluded--Because of his death during trial he had ceased to be owner of property that stood vested by devolution of inheritance in appellants--Such owners through inheritance were never arrayed as accused in trial and thus their rights could not be jeopardized at conclusion of proceedings to which they were never party--Order of nature contemplated by S. 522 or 522-A Cr.P.C. can also be passed only when person is convicted of offence of cheating, forgery, criminal mis-appropriation of property or criminal breach of trust--In instant case "M" apparent owner of property was never convicted and also had ceased to be owner during pendency of trial--Appeal of Provincial Govt. which normally is supposed to be presented either by Advocate General or by District Attorney was, in all boldness, withdrawn under letter of Tehsildar who had no authority to withdraw--In order that status of property qua which fraud is alleged to have been committed, does not go unsettled and in order that complete justice is done in case and to both parties no other remedy except invoking or jurisdiction under Art. 187 of Constitution--Appeal accepted--First Appellate Court is directed to implead legal heirs of "M" and also to implead any other party that it deems proper. [Pp. 1268, 1269 & 1270] A, B, C, D, E & F
Mr. Gulzarin Kiani, ASC with Mr. M.S. Khattak, AOR for Petitioners.
Mrs. Afshan Ghazanfar, Assistant Advocate General, Punjab with Mr. Mehmood A. Sheikh, ASC for Respondents.
Date of hearing : 24.5.2006.
Judgment
Sardar Muhammad Raza, J.--Faisal Ashfaq, Tahir Ashfaq and Mst. Saiqa Ashfaq, the sons and daughter respectively of Muhammad Ashfaq (deceased) have been granted leave to appeal against the judgment dated 10.5.2002 of a learned Judge in chambers of Lahore High Court, Rawalpindi Bench, deciding Criminal Appeal # 86 and Criminal Revision # 41 of 1998.
Muhammad Ashfaq alongwith eight others, with reference to FIR # 26 dated 12.10.1985 of Anti-Corruption Establishment Rawalpindi, was tried under Sections 109/218/420/468/471 PPC read with Section 5(2) of the Prevention of Corruption Act 1947. The offences aforesaid were alleged to have been committed in connection with forged and fictitious transfer of land property.
For the limited purpose of this appeal, the relevant background is that Muhammad Ashfaq died during the pendency of trial aforesaid and hence qua him the trial abated. Another co-accused named Muhammad Ashraf, the then Patwari, was convicted. The impugned judgment of the learned High Court was with reference to his Appeal # 86 of 1998 while the present appellants had filed Criminal Revision # 41 of 1998, both having been heard together. The learned Special Judge, Anti-Corruption Rawalpindi providing cause of grievance to the present appellants, passed an order apparently under Section 517 Cr.P.C. that reads as follows:--
"...........................................................................
........................................therefore land measuring 108 kanals 2 marlas purporting to be transferred in favour of Muhammad Ashfaq accused through Mutations Nos. 2048 to 2051 belongs to the State and the State is entitled to its possession. Under the provisions of Section 517 Cr.P.C., it is hereby ordered, that whosoever is in possession of the said land, after the death of Muhammad Ashfaq accused, its possession be taken from him and restored to the State. This order is to be carried into effect by the District Magistrate/District Collector. However it shall not be carried out for one month from the date of this order."
The aforesaid order, having been upheld by the learned High Court through the impugned judgment, the appellants have resorted to this Court.
In order to appreciate the circumstances under which the order, purporting to be under Section 517 Cr.P.C. is passed, one has to go a little further in the background. One Mushtaq Hussain son of Lal Khan of Narhali, Gujar Khan through this attorney, had filed an application before Additional Commissioner, Rawalpindi that a fraud had been committed by Muhammad Ashfaq in collusion with the revenue authorities regarding land in question which was originally allotted to one Fateh Ali son of Hasan Muhammad refugee from Jammu and Kashmir. In the order of allotment two family members namely Fateh Ali and Mst. Zainab Bibi widow of Boota were mentioned. That Fateh Ali died as bachelor while Mst. Zainab Bibi died as an issue-less widow. The ownership rights were transferred to them six years after their death, in 1978-79.
That Muhammad Ashfaq, being Chairman of Union Council Narhali and in collusion with the revenue staff got transferred the property of Fateh Ali in favour of a fake lady named Mst. Salima Bibi, personating as daughter of Fateh Ali. A Mutation # 1776 was attested to that effect the `part patwar' whereof was manoeuvered to be misplaced.
Thereafter, one Khuda Bux was shown to be an attorney of Mst. Salima Bibi and the land was transferred through the attorney in favour of Muhammad Ashfaq vide Mutations # 2048 and 2049. This also included the transfer of state land measuring 40 kanals, having not been transferred to Fateh Ali.
An inquiry was conducted on the basis whereof a case was registered, eventually, to be tried by learned Special Judge Anti-Corruption Rawalpindi who vide judgment dated 13.3.1998 convicted Muhammad Ashraf but no order against Muhammad Ashfaq could be passed due to his death during trial. The order qua the landed property, reproduced in the earlier part of this judgment and upheld by the learned High Court, has culminated into this appeal.
After having gone through the entire record and history of the case, one cannot fail to comprehend that an order for disposal of property, if at all, can be passed under Section 517 Cr.P.C. only when the trial is concluded. In the instant case the properly has been in the name of Muhammad Ashfaq deceased who was an accused but against whom the trial never concluded. Because of his death during trial he had ceased to be an owner of the property that stood vested by devolution of inheritance in the present appellants. Such owners through inheritance were never arrayed as accused in the trial and thus their rights could not be jeopardized at the conclusion of proceedings to which they were never a party. The learned counsel for the appellant relied, in principle, on Tara Chand v. The State (AIR (38) 1951 Madhya Bharat 154).
The learned Special Judge has also ignored a judicial fact that qua the title of the property there was a decree of Civil Court dated 12.5.1993 in favour of Muhammad Ashfaq against which the Government had withdrawn its appeal 185 before the District Court on 21.11.1993. The judgment, which would be discussed thoroughly in due course, being of Civil Court concerning title of a party at the relevant stage could not be undone by a criminal Court, under Section 517 Cr.P.C. The aforesaid circumstances taken together sufficient provide that a Court exercising criminal jurisdiction, in the given condition, was not legally equipped with reasons to pass an absolute order deciding the title of any party in the landed property. Order of the nature contemplated by Section 522 or 522-A Cr.P.C. can also be passed only when a person is convicted of an offence of cheating, forgery, criminal misappropriation of property or criminal breach of trust. In the instant case Muhammad Ashfaq, apparent owner of the property was never convicted and also had ceased to be an owner during the pendency of trial.
This has brought us to a fairly anomalous situation where, according to the concurrent finding of two Courts of criminal jurisdiction the offence of fraud by cheating, forgery and personation stood finally proved. The landed property concerning which the fraud is committed certainly belongs now to the legal heirs of Muhammad Ashfaq, whose title should not be allowed to be disturbed by an order of Court of criminal jurisdiction before whom they were not a party and before whom even the trial against their father had abated and not concluded.
The situation aforesaid happens to be better comprehended when one reverts back to a decree dated 12.5.1993 of the Civil Court that had become final due to withdrawal by the Government of appeal before the District Court on 21.11.1993. The details of such appeal and withdrawal thereof are available at (pp-166-171). The filing of the suit by Muhammad Ashfaq himself, the obtaining of ex parte decree and the withdrawal of appeal before the Additional District Judge Rawalpindi become extremely relevant when looked at in the context of criminal case registered on 12.10.1985. It was in connection with the complaint of one Mushtaq Hussain, that a departmental inquiry was first conducted. Through the exact date of Mushtaq Hussain's application is not decipherable yet the period of such complaint and inquiry apparently seems to be coinciding with the period of the civil suit and this makes the matter dubious.
In the civil suit, an ex parte decree was obtained by Muhammad Ashfaq on 12.5.1993 from Senior Civil Judge Rawalpindi (pp 160-165) against the Government of Punjab and its functionaries of revenue department (p-154). They, at the first instance, attended the Court, filed written statement and subsequently disappeared and were thus proceeded against ex parte. Government of the Punjab filed Appeal # 185 on 15.6.1993 before the District Judge which was withdrawn on 21.11.1993. On the crucial date one Muhammad Tufail, Junior Clerk had produced a letter from Tehsildar Gujar Khan disclosing that the Provincial Government had no interest in the land having already been allotted. Thus the appeal stood dismissed as withdrawn (pp-170-171).
It is amazing to observe that the appeal of Provincial Government which normally is supposed to be represented either by the Advocate General or by the District Attorney was, in all boldness, withdrawn under the letter of Tehsildar Gujar Khan who had no authority to withdraw. Even the office bearers of the office of Advocate General cannot withdraw any proceedings from the Court without the instructions in writing of the Government, as such. Government of the Punjab was not doubt a party but no functionary beyond district level was arrayed as defendants. Even the Board of Revenue was not made a party with Special reference to the Government land involved. This withdrawal dated 21.11.1993 under dubious circumstances has resulted into miscarriage of justice and into non-rendering of a decisive judgment on merits. The technical difficulty is that the judgment has become final as well. On the one hand there are judgments of two Courts in the civil hierarchy rendered under dubious circumstances and on the other hand there are judgments of criminal Courts that negate the genuineness of transfer of land but with no judicial finding against Muhammad Ashfaq who happened to have died during criminal trial. We are left with no decisive verdict.
In order that the status of the property qua which fraud is alleged to have been committed, does not go unsettled and in order that complete justice is done in the case and to both the parties, we could, in the circumstances, comprehend of no other remedy except invoking our jurisdiction under Article 187 of the Constitution.
Consequently, the instant appeal is accepted, the order purporting to be passed under Section 517 Cr.P.C. is set aside, and that dated 21.11.1993 of withdrawal of appeal by Additional District Judge Rawalpindi is also set aside. Appeal # 185 instituted on 15.6.1993 decided on 21.11.1993 by Additional District Judge Rawalpindi is hereby restored to its original number with direction that it be decided on merits. The first appellate Court is directed to implead the legal heirs of Muhammad Ashfaq and also to implead any other party that it deems proper in accordance with law and in the interest of justice. Mrs. Afshan Ghazanfar, learned Assistant Advocate General Punjab, present in Court is directed to appraise the Government of the background and to instruct the Government to properly pursue the matter in accordance with law.
(Aliya Sattar Chaudhry) Order accordingly.
PLJ 2006 SC 1271 [Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Ch. Ijaz Ahmed and Syed Jamshed Ali, JJ.
AMIN and others--Petitioners
versus
Hafiz GHULAM MUHAMMAD & others--Respondents
C.P. Nos. 84 & 105-Q of 2005, decided on 3.5.2006.
(Against the judgment dated 19.8.2005 passed by the High Court of Baluchistan, Quetta in FAOs Nos. 41 & 43 of 2004).
(i) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 115--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Ejectment petition--Denial of relationship--Ejectment ordered on the ground of default--Estoppel to deny relationship of landlord and tenant--Applicability of principle of estoppel--Held: Principle of Art. 115 of Qanun-e-Shahadat was applicable to the facts and circumstances of the case and unless the petitioners had surrendered possession, they could not repudiate landlord's title--Question of title to property--Question of title was not relevant to adjudicate an ejectment petition--Civil appeals had no force--Petitions dismissed. [Pp. 1275 & 1276] A, C & E
PLD 1992 SC 401; 1976 SCMR 77; PLD 1985 SC 1; 1989 SCMR 913; NLR 1995 Rev. 41; AIR 1937 Lah. 243; AIR 1973 Orissa 44; 1982 SCMR 1120; 1981 SCMR 139; PLD 1981 SC 545; 1996 SCMR 795 rel. 1996 MLD 1543 and 1996 MLD 948, disting.
(ii) Locus Standi--
----Respondent gave property on rent to petitioner--Chairman Evacuee Trust Property Board declared said property as Evacuee Trust, directed cancellation of P.T.O. in favour of respondent and recommended sale--Federal Government directed sale through auction giving first right of refusal to respondent--Tenant withhold payment of rent--Ejectment petition on ground of default, accepted by trial Court, appeals also dismissed--Leave to appeal--Validity--Petitioners tenants were inducted in the premises after superstructure had been raised by the landlord and in the letter of the Federal Govt.--Respondent/landlord had been accepted as "allottee/occupant"--Not only by virtue of induction in the property by the respondent but also on the basis of facts, no justification for the petitioners-tenants to repudiate the title of the landlord--Held: By paying rent to the E.T.P.B the tenants were making a ground ultimately to claim sale of the property in their favour--Default was not deliberate--Petitions dismissed. [Pp. 1275 & 1276] B, D & F
Mr. Tariq Mehmood, ASC for Petitioners (in both cases).
Respondent No. 1 in person.
Mr. Rashid Awan, ASC for Respondent No. 2.
Date of hearing : 21.4.2006.
Judgment
Syed Jamshed Ali, J.--This judgment will dispose of CPs Nos. 84-Q and 105-Q of 2005. Both these petitions arise out of an ejectment matter. The first is by the tenants while the second is by the Assistant Administrator, Evacuee Trust Property Board (E.T.P.B), who is claiming rival title qua Respondent No. 1, the landlord. Both petitions seek leave to appeal against the consolidated judgment dated 19.8.2005 of the learned Baluchistan High Court, Quetta. The facts, briefly stated, are as under.
The property in dispute comprises five shops and a godown on a plot of land which was provisionally transferred to Respondent No. 1 on 15.9.1960 under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The respondent-landlord raised construction thereon and inducted the petitioners in the first petition as tenants under a written rent note. On 12.12.1991, on the application of the Assistant Administrator, Evacuee Trust Property Board (E.T.P.B), the Chairman of the said Board declared the said property as evacuee trust, and directed cancellation of the PTO issued in favour of the respondent. On a revision petition of the respondent-landlord, the Federal Government, vide order dated 30.3.1994, remanded the case. However, even after the remand, the Chairman vide his order dated 13.12.1995 maintained his earlier order. He however, recommended out right sale of the property in dispute in favour of the respondent.
Pursuant to the recommendation aforesaid, the Federal Government directed sale of the property through auction giving first right of refusal to the respondent-landlord. Not contended with the aforesaid order, respondent filed a suit for declaration in which the plaint was rejected on 28.9.2001 and his appeal was dismissed on 27.2.2002. The learned High Court on revision petition of the land-lord, vide judgment dated 10.10.2003, remanded the case to the trial Court against which leave was granted by this Court in C.Ps. Nos. 213-Q and 218-Q of 2003 which are pending as C.As Nos. 226 & 227 of 2004, before this Court.
However, as a result of the order dated 12.12.1991, the tenants withheld payment of rent to the respondent-landlord and started paying it to the E.T.P.B. on which he filed an ejectment petition. The petitioners-tenants denied the relationship of the landlord and tenant on which issues were framed and after recording the evidence, the learned Rent Controller directed ejectment of the petitioners-tenants from the premises in dispute vide judgment dated 10.9.2004. FAOs Nos. 41 and 43 of 2004 filed respectively by the tenants and the Assistant Administration, E.T.P.B., were dismissed vide judgment dated 19.8.2005, impugned in these petitions. Ejectment of the petitioners was ordered on the ground of default with the observation that the petitioners were estopped to deny the relationship of landlord and tenant.
Mr. Tariq Mehmood, ASC, who represents the petitioners-tenants, submits that the principle of estopple contemplated by Article 115 of the Qanoon-e-Shahadat Order, 1984 (Section 116 of the Evidence Act) was not applicable in the facts and circumstances of the case. The tenants were only estopped to deny the relationship during the subsistence of the tenancy and not when relationship of landlord and tenants comes to an end by operation of law or intervention of the Court as happened in this case. He vehemently relied upon the order dated 13.12.1995 of the Chairman, E.T.P.B. who declared the property as evacuee trust with the result that the PTO, on the basis of which the respondent had claimed to be the landlord stood nullified and, therefore, the learned Courts below wrongly applied Article 115 of the Qanoon-e-Sahahdat Order, 1984. In support of his submission, he relied on an unreported judgment of the learned Peshawar High Court in Writ Petition No. 1332 of 2003 decided on 11.10.2005, Kumar Kirshna Prosad Lal Singha Deo vs. Baraboni Coal Concern, Ltd., and others (AIR 1937 Privy Council 251), Izhar ul Hassan Rizvi vs. Mian Abdur Rahman and others (1992 SCMR 1352). He also relied upon the judgments noted by the learned Peshawar High Court in the above said case. He next contended that as a result of order dated 12.12.1991, the Chairman, E.T.P.B., the petitioners were threatened with the eviction from the premises in dispute by the E.T.P.B. and were called upon the deposit the rent and, therefore, in the circumstances, payment of rent by them to the real owner did not at least constitute contumacious and willful default. He lastly submitted that dispute as to title between E.T.P.B. and the respondent is pending before this Court and it will be appropriate that these petitions are heard alongwith appeals Nos. 226 and 227 of 2004.
Mr. Rashid Awan, Advocate appearing for the petitioners in CP No. 84 of 2005 adopted the arguments of Mr. Tariq Mehmood, ASC. The petitioner appeared in person. He, however, did not make any submission.
The submissions made have been considered. The case of the respondent-landlord that he had raised construction on the vacant plot was admitted by Petitioners Nos. 1 and 2 while the other petitioners denied it for want of knowledge. Both the set of petitioners. however, admitted that they were inducted in the premises as tenants by Respondent No. 1 and have been paying rent to him till 12.12.1991 on which date the PTO issued in his favour was ordered to be cancelled. Another admitted fact is that dispute as to title between the E.T.P.B. and Respondent No. 1 is subjudice before this Court. We have also noticed that according to letter dated 27.10.1998, Secretary, E.T.P.B., Government of Pakistan, right of first refusal has been given to the respondent and in this letter he has been described as "sitting allottee/occupant". Thus, his right to hold the property has been fully recognized. These admitted facts have been noted by us to examine whether the principle of Article 115 of the Qanoon-e-Shahadat Order, 1984, was or was not attracted to the peculiar facts and circumstances of the case.
The learned High Court while dismissing the FAOs, relied on a judgment of this Court in Madrissa Darul Uloom Al-Baqiat-ul-Salehat registered vs. The Additional District Judge (Appellate Court) and another (PLD 1992 SC 401). In the said case Madarissa Dar-ul-Aloom, the petitioner before this Court, had obtained eleven kanals of land on lease from E.T.P.B., had raised construction thereon and then inducted tenants. On eviction petition against a tenant he denied relationship on the ground that the land belonged to the Lahore Development Authority. The learned Rent Controller ordered ejectment which was reversed by the learned Additional District Judge and maintained by the High Court. This Court interfered with the finding that the tenant could not repudiate the title of the landlord without surrendering possession.
The other judgments of this Court are also being noted hereunder. The first is Kalimullah vs. Amin Hazin and others (1976 SCMR 77). In the said case the title of the landlord was denied on the ground that the property was evacuee, the principle of Section 116 of Evidence Act, was applied. We will also like to add that the judgment of this Court in Province of Punjab through Education Secretary and another vs. Mufti Abdul Ghani (PLD 1985 SC 1) was considered in this case. In Syed Izhar ul Hassan Rizvi supra the tenant had purchased a portion of the property and had become co-sharer. This Court, relied on Kumar Krishna Prosad Lal Singha Deo supra and held that the principle of estopple was not applicable and the ejectment order passed by the High Court was set aside. It may be noted that this was a case in which tenant had set up his own title as co-sharer to deny the title of the landlord. This judgment was rendered by two honourable judges of this Court. In Nazir Ahmad vs. Mst. Sardar Bibi and others (1989 SCMR 913) which is a judgment by a five learned member bench, the principle of estopple was applied against a tenant who had denied title of the landlord and had set up the plea of becoming a co-sharer. The other important case to be noted is Munjri Khan, etc. vs. Faridoon, etc. (NLR 1995 Revenue 41). This involved a case of ejectment from agricultural land. The land was allotted to one Abdul Lateef, A J & K refugee, which was sold in favour of the landlord in this case who had inducted the tenants on the land in dispute. The tenant denied tenancy on the ground that the land stood transferred in favour of Shad Muhammad Khan and others, therefore, the landlords title had extinguished to be as such. The principle underlying Article 115 was considered at great length and, inter alia, the Privy Council case in Kumar Krishna Prosad Lal Singha Deo supra was also considered. Besides, the following judgments were also considered:--
. Ahman Shah Muhammad vs. Emperor (AIR 1937 Lahore 243).
. Krupasinghu Routra and another vs. Purna Chandra Misra and others (AIR 1973 Orissa 44).
. Muhammad Anwer through his legal representatives vs. Abdul Shakoor (1982 SCMR 1120).
. Messrs Muhammad Ismail & Bros. vs. Malik Muhammad Tahir etc. (1981 SCMR 139).
. Ismail Brothers vs. Keval Ram (PLD 1981 SC 545).
and the tenant was not allowed to repudiate the title of the landlord. This is also a case in which the tenant had set up somebody else's titled. In Muhammad Idress vs. Mst. Safia Begum and others (1986 SCMR 795), the tenant had denied the title of the landlord by contending that the transfer in favour of the displaced person from whom the landlord had purchased had been cancelled and the house was transferred in his favour. The tenant was not allowed to repudiate the title of the landlord.
The judgment of the learned Peshawar High Court, inter alia, referred to two judgments of the Lahore High Court which took the view that a tenant is estopped to deny landlord's title only during the subsistence of the tenancy. These are Zafar Iqbal and others vs. A.D.C. (G) and others (1996 MLD 1543) and Sarbland and 19 others vs. Ghulam Fatima and 6 others (1996 MLD 948). In the case of Zafar Iqbal supra fraud and forgery in setting up by the title by the land lord was involved while in the case of Sarbland and 19 others, denial was by a co-sharer. However, none of the judgments of this Court, noted above was considered.
Perusal of the above judgments shows that in case of denial of landlord's title in both the situation i.e. when the tenant sets up his own title or when he sets up somebody else's title, the principle of Article 115 of the Qanoon-e-Shahadat Order was applied and the tenant was ordered to be ejected. The reason therefor, is not far to seek. In all the judgments, dominant feature has been that in ejectment matters, the question of title is not relevant. We may like to add that if a dispute arises between the two rival contenders for title to the property, the tenant has no locus standi to intervene and it is for the appropriate Court to resolve the dispute. We have also noted some peculiar features of this case in the paragraph 7 ante. Undisputedly, the petitioners-tenants were inducted in the premises after the superstructure had been raised by the landlord and in the letter dated 27.10.1998 of the Federal Government respondent-landlord has been accepted as "allottee/occupant". Not only by virtue of induction in the property by the respondent but also on the basis of the facts noted above there was absolutely no justification for the petitioners-tenants to repudiate the title of the landlord. It appears that by paying rent to the E.T.P.B. the tenants are making a ground ultimately to claim sale of the property in their favour. Thus, we hold that principle of Article 115 of the Qanoon-e-Shahadat Order was applicable to the facts and circumstances of the case and unless the petitioners had surrendered possession, they could not repudiate landlord's title.
The second plea of the learned counsel for the petitioners that default was not contumacious has no merit either. In such a situation, the plea might have been acceptable had the tenants deposited the rent in the Court and then filed an inter-pleader suit which was not done. Therefore, we are not persuaded to accept the plea that the default was not deliberate. As far as the last contention is concerned, we have also considered it and feel that since the question of title is not relevant to adjudicate an ejectment petition, the prayer to hear these petitions and Civil Appeals Nos. 226 & 227 of 2004 together has no force. As far as C.P. No. 105-Q/2005 is concerned, it has no merit because as far as the matter of ejectment is concerned, the position of the petitioner is not better than that of an intervener.
Resultantly, both the petitions fail and are dismissed.
(M. Ajmal Rana) Petitions dismissed.
PLJ 2006 SC 1276 [Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Ch. Ijaz Ahmed & Syed Jamshed Ali, JJ.
MUHAMMAD YAQOOB--Petitioner
versus
BEHRAM KHAN--Respondent
C.Ps. Nos. 22 & 23-Q of 2005, decided on 19.4.2006.
(On appeal from the order dated 13.4.2005 passed by the High Court of Balochistan in Civil Petitions No. 18 & 17 of 2003 respectively).
Civil Procedure Code, 1908 (V of 1908)--
----S. 151--Inherent Powers of Civil Court--Consolidation of suits--Held: Where a common subject of claim was in dispute in counter suits, both the suits were consolidated and decided together--Such rule was imperative in order to avoid conflicting decisions--Consent of parties was not the condition precedent for the consolidation. [Pp. 1277 & 1278] A & B
Petitioner in person.
Nemo for Respondent.
Date of hearing : 19.4.2006.
Order
Ch. Ijaz Ahmed, J.--We intend to decide both the above mentioned captioned petitions by one consolidated order having common question of law arising out of the same impugned judgment. The detailed facts have already been mentioned in the impugned judgment. However, necessary facts out of which the present petitions arise are that petitioner filed a Suit No. 1/2000 for Specific Performance of a Contract and permanent injunction against the respondent/defendant in the Court of Civil Judge Quetta. Respondent had also filed a Suit No. 53/2003 against petitioner and six others in the Court of District Judge Quetta for possession mesne profits and permanent injunction. It is pertinent to mention here that petitioner and respondent had also filed written statements in the aforesaid suits. Respondent filed an application u/S. 151 CPC for consolidated of suits in the Court of Civil Judge Quetta. The learned trial Court dismissed the application vide order dated 4.9.2003 in civil suit 53/2003 and ordered that the Suit No. 53/2003 be stayed and also dismissed the application for consolidation in Civil Suit No. 1/2000. Respondent being aggrieved filed Civil Revision No. 17/2003 and 18/2003 in the High Court of Balochistan. The learned High Court accepted the revision petitions vide impugned consolidated judgment dated 13.4.2004 wherein both the suits were ordered to be consolidated and the orders of the trial Court dated 4.9.2003 and 11.9.2003 were set aside with the direction to the trial Court to dispose of the matter within six months. Hence the present petitions.
Petitioner submits that trial Court was justified to dismiss the application for consolidation of cases with cogent reasons and stayed the suit of the respondent as the petitioner had filed suit prior in time. He further urges that suit of the petitioner was at the stage of conclusion whereas the suit of the respondent was at initial stage.
We have given our due consideration to the contention of petitioner and perused the record. It is settled principle of law that where a common subject of claim is in dispute in counter suits, both the suits are consolidated and decided together. This rule is imperative in order to avoid conflicting decisions. The rule was completely ignored by the trial Court as it failed to decide the issue in question and committed error to stay the proceeding of the respondent's suit which was rightly rectified by the learned High Court with cogent reasons in the impugned judgment. It is pertinent to mention here that parties in both the suits are the same and subject matter/property is the same. It is a well settled by a long chain of authorities that the consolidation of the suits can be ordered by the Court in exercise of its inherent powers. The consent of the parties is not the condition precedent for exercise of such powers. The purpose of consolidation is to avoid multiplicity of litigation to eliminate award of contradictory judgments and to prevent the abuse of the process of the Court. These purposes are merely illustrative and not exhaustive of the powers of the Court. There may be other variety of grounds that in the interest of justice the Court may be persuaded to consolidate the cases. The learned trial Court had stayed the proceedings of the suit of the respondent without judicial application of mind in violation of the law laid down by this Court in various pronouncements. See Mollah Ejahar Ali's case (PLD 1970 SC 173) and Gouranga Mohan Sikdar's case (PLD 1970 SC 158). The impugned order has been passed with jurisdiction, is a just and proper order, expedient and in the interest of both the parties, as it will conclusively and finally decide the entire issues comparatively in much less number of years than if the same were to be tried one after the other. The impugned judgment is in accordance with the law laid down by the superior Courts. See Adam Ltd's case (PLD 1963 Kar. 514) (four suits were consolidated) and Nur Elahi's case (PLD 1966 SC 708) (two criminal cases were consolidated). No jurisdictional defect or error of law has been pointed out so as to persuade us to interfere with the impugned judgment in the exercise of constitutional jurisdiction under Article 185 (3) of the Constitution. If we are to analyse the rationale behind Sections 10 and 11 CPC, two sections seem to be based on the principle that the multiplicity of litigation should be avoided and no one should be troubled twice for the same cause and bearing in mind the same principle and the plethora of case law taken note of in Pakistan Industrial Credit and Investment Corporation Ltd.'s case (PLD 1976 Karachi 249).
In view of what has been discussed above, we do not find any merit in both these petitions which are hereby dismissed. Leave to appeal is declined. However, in the interest of justice and fair play, the trial Court is directed to conclude the trial within a period of one year after giving opportunity of hearing to the parties.
(Javed Rasool) Order accordingly.
PLJ 2006 SC 1278 [Appellate Jurisdiction]
Present: Javed Iqbal & Saiyed Saeed Ashhad, JJ.
SH. MUHAMMAD RAFIQUE GOREJA and another--Petitioners
versus
ISLAMIC REPUBLIC OF PAKISTAN etc.--Respondents
C.Ps. Nos. 2155 & 2563 of 2004, decided on 9.12.2005.
(On appeal against the judgment dated 31.8.2004 passed by the Federal Service Tribunal, Islamabad passed in Appeals Nos. 284 and 838(L)/CS/2002).
(i) Constitution of Pakistan, 1973--
----Art. 189--Decision of Supreme Court--Held: Ultimate responsibility of interpreting the law of the land is that of Supreme Court--Any decision of Supreme Court to the extent that it decides a question of law or is based upon or enunciates a principle of law, is binding on all other Courts in Pakistan. [P. 1283] A
(ii) Constitution of Pakistan, 1973--
----S. 189--Decision of Supreme Court--Held: A decision in suo motu Shariat Review Petition followed by Supreme Court would be binding on all other Courts in Pakistan--Law declared by Supreme Court becomes law of the land and is binding not only on all Courts in Pakistan but also on all functionaries of Government. [P. 1283] B
(iii) Constitution of Pakistan, 1973--
----Art. 189--Obiter dictum--National Accountability Ordinance (XVIII of 1999), S. 5(g)--Terms and conditions of Judges of Accountability Courts--Decision of Supreme Court--Held: Directions given by Supreme Court qua the terms a conditions of Judges of Accountability Courts even if considered obiter dictum, it would be of binding nature because, "where Supreme Court deliberately & with the intention of setting the law, pronounces upon a question, such pronouncement becomes the law, declared by Supreme Court and is binding on all Courts in Pakistan" So it cannot be treated as mere obiter dictum. [P. 1283] C
(iv) Constitution of Pakistan, 1973--
----Art. 185(3)--National Accountability Ordinance (XVIII of 1999), S. 5(g)--Petitioners appointed as Judges of the Accountability Courts--Their claim of entitlement for pay as being drawn by High Court Judges was not accepted even by Service Tribunal--Held: Judges of the Accountability Courts were not entitled to get pay being drawn by High Court Judges as directed by Court in PLD 2001 SC 607--Reasonable concession has alredy been granted by the President to petitioners--They were well aware regarding modification of terms & conditions so no separate legislation was needed to modify these conditions--Leave refused. [P. 1284] E
(v) Obiter Dictum--
----The obiter dictum given with the intention of enunciating a principle would have binding force and cannot be ignored lightly. [P. 1284] D
PLD 2001 SC 607; (1972) 4 SCC 267; (1989) 1 SCC 101; (1991) 4 SCC 139; (1989) 1 SCC 272, 278; PLD 1968 Lah. 329; PLD 1964 Lah. 23; NLR 1992 Cir. 97; PLJ 1990 Cr.C. 270; 1989 CLC 776; PLJ 1987 Lah. 384; AIR 1953 All. 613; 1986 CLC 507; PLD 1996 Dacca 296 & AIR 1955 Bom. 220, ref.
Mr. Khadim Nadeem Malik, ASC for the Petitioner (in CP No. 2155/04).
Mr. Mujeeb-ur-Rehman, ASC & Ch. Akhtar Ali, AOR for Petitioner (in CP. 2563/2004).
Nemo for Respondents.
Date of hearing : 9.12.2005.
Judgment
Javed Iqbal, J.--The above captioned petitions for leave to appeal arising out the common judgment dated 31.8.2004 passed by the learned Federal Service Tribunal, Islamabad, whereby the appeals preferred on behalf of petitioners have been dismissed, are being disposed of by this judgment as similar questions of law and facts are involved.
Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "Mr. Muneer Ahmed Sheikh retired as District and Sessions Judge with effect from 29.2.2000 on attaining the age of superannuation. He was directed vide notification dated 1.3.2000 to continue to hold charge of the Judge Accountability Court on a contract of one year which was extended for another year with effect from 1.3.2001 vide notification dated 27.2.2001. Sheikh Muhammad Rafiq Goreja superannuated and retired as District and Sessions Judge with effect from 7.9.2000. He was appointed Judge Accountability Court for a period of two years under Section and privileges of the Judge of a High Court vide Notification (g) of the NAB Ordinance 1999, on the pay, allowances dated 31.8.2000," and resultantly the terms and conditions of appointment of petitioners were modified and they were treated at par with their counterparts qua remuneration and privileges with the specific direction that they shall not be paid the salary admissible to the High Court Judge. Being aggrieved, a representation was made to the Ministry of Law, Justice and Human Rights Division, which was rejected. The President of Islamic Republic of Pakistan was approached as a last resort by way of appeal, which resulted in 50% waiver of the amount due on account of excess payment. The petitioners being dissatisfied preferred appeals before learned Federal Service Tribunal which were rejected, hence these petitions.
Heard Mr. Khadim Nadeem Malik and Mr. Mujeeb-ur-Rehman, learned ASCs on behalf of petitioners at length, scanned the entire record and perused the judgment impugned with care and caution. The prime contention of the learned ASCs on behalf of petitioners is that the judgment of this Court reported in Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607) has been ministerpreted and misconstrued and more so the terms and conditions of the petitioners could not have been modified unilaterally adversely affecting the vested rights of the petitioners. In order to appreciate the said contention we have carefully perused the judgment of this Court passed in Khan Asfandyar Wali's case (supra), relevant portion whereof is reproduced herein below for ready reference:--
"193. We are of the view that for smooth and effective functioning of the Accountability Courts all the judges should be serving District and Sessions Judges qualified to be appointed as Judges of the High Court. They should be appointed for a period of three years in consultation with the Chief Justice of the concerned High Court and not with the Chief Justice of Pakistan as contemplated in Section 5(g) of the NAB Ordinance. During their term of appointment as such they shall not be transferred to any other place nor removed from service except on ground of misconduct or physical or mental infirmity by the competent authority i.e. the High Court concerned after following the procedure prescribed in the relevant rules in that regard. They shall be entitled to same remuneration, privileges, facilities and allowances as are admissible to their counter parts who are performing functions in respect of Courts and Tribunals established by the Federal Governments. They shall not be paid the salaries and privileges as are admissible to Judges of the High Court except security arrangements if and when required having regard to the nature of their work. Remuneration already drawn for the period they performed their functions as Judges of the Accountability Courts shall not be recovered being hit by the doctrine of past and closed transaction. Further, appointment and posting as Judge of Accountability Court shall not debar such judge from being elevated as Judge of a High Court if so appointed in terms of Article 193 of the Constitution.
The present incumbents/Judges of the Accountability Courts who are not serving District and Sessions Judges shall be given an option to serve as such on the last pay/salary drawn at the time of their retirement as District and Sessions Judges for the remainder part of their term of three years otherwise their services shall be dispensed with by giving them three months salary."
A careful scrutiny of the relevant paragraphs of the judgment reported in Khan Asfandyar Wali's case (supra) would reveal that the same have been couched in a very simple and plain language which being free from any ambiguity hardly needs any scholarly interpretation. It is directed in a categoric and crystal clear manner that:--
(i) the Judges of the Accountability Courts should be serving District and Sessions Judges qualified to be appointed as Judges of the High Court;
(ii) the appointment should be for a period of three years after having consultation with the Chief Justice of the concerned High Court;
(iii) there should be no consultation with the Chief Justice of Pakistan as enumerated in Section 5(g) of the NAB Ordinance, 1999;
(iv) the Judges of the Accountability Courts should not be transferred or removed from service except on the ground of misconduct, physical or mental infirmity by the competent authority after completion of all the necessary mandatory and legal formalities;
(v) the Judges of the Accountability Courts shall be entitled to same remuneration, privileges and facilities as are admissible to the other District and Sessions Judges;
(vi) the Judges of the Accountability Courts shall not be paid the salaries and privileges as are admissible to the Judges of the High Court except security arrangements;
(vii) the remuneration already drawn by the Judges of the Accountability Courts shall not be recovered being hit by the doctrine of past and closed transaction;
(viii) the appointment as Judge of Accountability Court shall not impose a restriction on such Judge from being elevated as Judge of the High Court;
(ix) the serving Judges of the Accountability Courts who are not serving as District and Sessions Judges shall be given an option to serve as such on the last pay/salary drawn at the time of their retirement as District and Sessions Judges;
(x) the services of Judges of the Accountability Courts could have been dispensed with by giving them three months salary.
The terms and conditions of appointment of the Judges of the Accountability Courts have been determined in Khan Asfandyar Wali's case (supra) and the question of any deviation therefrom does not arise. It has been made abundant clear as mentioned herein above that the Judges of the Accountability Courts shall not be paid the salaries and privileges as are admissible to the Judges of the High Court. The above categoric direction has been implemented as it was obligatory for the Government to do the needful, which has been done. We are not persuaded to agree with the prime contention of the learned ASC that the view point as portraited in paragraphs 193 and 194 of the judgment of Khan Asfandyar Wali's case (supra) is mere expression of view and at the best can be treated as suggestions but cannot be implemented without making suitable amendments in the relevant Act and more so no question of law was decided by this Court hence the question of its implementation does not arise for the simple reason that the decision of the Supreme Court is binding not only on all the Courts in Pakistan but also on all functionaries of the Government irrespective of its nature. "The law declared by the Supreme Court is binding on the State and its officers and they are bound to follow it whether the respondents in a particular case were parties or not to the previous petition." (T.K.N. Rajgopal v. T.M. Karunanidhi, (1972) 4 SCC 267). "Decisions per incurim do not constitute binding precedent. Such decisions are those which are given in ignorance of the terms of the Constitution or of a statute or of a rule having the force of a statute. Also an order delivered without argument, without reference to the relevant provisions of the Constitution or the Act and without any citation of authority is per incurium. Similarly, decisions sub silentio have no precedental value. Such decisions are those which are given on a point of law not perceived by the Court or present to its mind. Sometimes well considered obiter dicta of the Supreme Court is taken as precedent but every passing expression of a judge cannot be treated as an authority." (Municipal Corpn. of Delhi v. Gurnam Kaur (1989) 1 SCC 101, State of U.P. v. Synthetics & Chemicals Ltd. (1991) 4 SCC 139, Saiyada Mossarrat v. Hindustan Steel Limited, Bhilai Steel Plant (1989 1 SCC 272, 278). It is well settled by now that "the ultimate responsibility of interpreting the law of the land is that of the Supreme Court. Therefore any decision of the Supreme Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law is binding on all other Courts in Pakistan. A decision in suo motu Shariat review petition followed by Supreme Court would be binding on all other Courts in Pakistan. Law declared by Supreme Court becomes the law of the land and is binding not only on all Courts in Pakistan but also on all functionaries of the Government." (Ali Muhammad v. Mahmoodul Hassan PLD 1968 Lah. 329, Mubinul Haq v. Muhammad Iqbal PLD 1964 Lah. 23, Maroof Khan v. Damsar Khan NLR 1992 Civ. 97, Salahuddin v. State PLJ 1990 Cr.C. 270, Malik Muhammad v. Jan Muhammad 1989 CLC 776, Abdul Ghaffar Khan v. Saghir Ahmed Aslam PLJ 1987 Lah. 384). Apart from the Constitutional obligation as enumerated in Article 189 of the Constitution of Islamic Republic of Pakistan even the propriety demands that all the functionaries of the Government must adhere to the decisions of the Supreme Court and if any direction is given in such decisions that would also be considered as binding on all the Government functionaries and cannot be considered lightly being an integral part of the decision. Even for the sake of argument if it is admitted that the directions given by the Supreme Court qua the terms of conditions of Judges of Accountability Court as obiter dictum of the Supreme Court, even then it would be binding in nature because "where the Supreme Court deliberately and with the intention of setting the law, pronounces upon a question, such pronouncement is the law declared by the Supreme Court within the meaning of this article and is binding on all Courts in Pakistan. It cannot be treated as mere obiter dictum. Even obiter dictum of the Supreme Court, due to the high place which the Court holds in the hierarchy of Courts in the country, enjoy a highly respected positions as precedent, and is binding on all other Courts, if it contains a definite expression of their Lordships opinion." (Emphasis provided) (Bimla Devi v. Chaturvedi AIR 1953 All. 613, Faiz Bakhsh v. Muhammad Munir 1986 CLC 507, Muhammad Ismail & Sons v. Trans-Oceanic Steamship Co. Ltd. PLD 1966 Dacca 296, K.P. Doctor v. State of Bombay AIR 1955 Bom. 220). The obiter dictum given with the intention of enunciating a principle would have binding force and cannot be ignored lightly.
It is worth mentioning that an option was given to the Judges of the Accountability Courts and besides that the appointment letter has removed all the doubts qua their salary/privileges and from whatever angle it may be interpreted the Judges of the Accountability Courts are not entitled to get the pay being drawn by a High Court Judge as directed by this Court in the above referred to judgment. It is wroth mentioning that a reasonable concession has already granted by the President of Pakistan and no more indulgence is called for. The petitioners were well aware regarding the modification of the terms and conditions as notified earlier and made pursuant to the judgment passed in Khan Asfandyar Wali's case (supra) and no separate legislation whatsoever was needed to modify the terms and conditions of appointment of the Judges of the Accountability Courts.
Be as it may ever fair opportunity was afforded to the petitioners to join service or otherwise after modification in the terms and conditions of the Judges of the Accountability Court made pursuant to the directions as contained in Khan Asfandyar Wali's case (supra). No injustice whatsoever has been done and even otherwise reasonable indulgence has been shown by the President of Pakistan by waiving the 50% of the amount due as mentioned herein above. No other question was argued. The petitions being devoid of merits are dismissed and leave refused.
(Javed Rasool) Leave refused.
PLJ 2006 SC 1284 [Appellate Jurisdiction]
Present : Iftikhar Muhammad Chaudhry, C.J., Mian Shakir Ullah Jan & M. Javed Buttar, JJ.
Haji MUHAMMAD AYUB KHAN AFRIDI and others--Appellants
versus
SPECIAL APPELLATE COURT, Peshawar--Respondents
C.As. Nos. 1918 & 1919 of 2002 and C.P. No. 280 of 2001, decided on 29.3.2006.
(On appeal from the judgment/order dated 14.12.2000 passed by Peshawar High Court, Peshawar in W.P. No. 627 of 1995 & 1275 & 1276 of 1996).
(i) Prevention of Smuggling Act, 1977 (XII of 1977)--
----Ss. 31, 32, 39 & 42--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Issuance of notice to appellant by Special Judge (Central) Customs, Taxation and Anti Smuggling as to why properties mentioned therein be not forfeited--Non-appreance despite issuance of proclamation--Appeals filed by appellant and dismissed by Appellate Court--Constitutional petitions as well as a petition filed by dismissed by High Court--Assailed--Validity--As the list of the properties produced before the Court contained the names of some of the respondents, therefore, they were bound to contest the notice if they were holding the properties in their own rights--Surprisingly, no one had appeared for the reasons best known to them, despite notice served upon the except one N.A. who instead of filing reply to notice, challenged to same by filing writ petition, ultimately when the matter had been decided against them, they filed an appeal within 30 days as envisaged under the law, which would mean that they had a notice about the proceedings against them, otherwise, there was no event available to them to file an appeal within 30 days, if at all they had not been served--In fact the properties vest in the name of appellant--Such fact can be substantiated by making reference to the order passed by the Special Judge on application u/S. 39 of the Act, 1977--Although that order was against all appellants but they did not bother to challenge the same except appellant before appellate forum, which dismissed his appeal and against the said order a Civil Petition for leave to appeal was also disposed of--As far as the other appellants are concerned, they had no vested right otherwise they would have jointly filed appeal before the Special Judge alongwith appellant--A perusal of orders indicated that conclusion was drawn against the appellant on the basis of the material placed before the Courts--If there is some technical error in conducting the proceedings or recording evidence--Property was acquired by appellant in his own name as well as the names of other relatives/ associates by smuggling, to whom other relatives/associates by smuggling, to whom notices were also issued and as all the forum below, on having taken into consideration the material on record have expressed their opinion against the appellants, therefore, no interference in such concurrent findings of fact is called for--Petition dismissed. [Pp. 1292 & 1293] H, I, J & K
2002 SCMR 664, disting.
(ii) Constitution of Pakistan, 1973--
----Art. 185(3)--Prevention of Smuggling Act, (XII of 1977), Ss. 31, 32, 39 & 42--Leave to appeal was granted to consider the following questions:--
(i) No reasons on which the ntoice issued u/S. 31.
(ii) Notice under Section 42 was not served as required law.
(iii) Petitioners were not notified date on which effective.
(iv) Provisions of S. 32(1) had not been complied with. [P. 1289] A
(iii) Prevention of Smuggling Act, 1977 (XII of 1977)--
----S. 42--Constitution of Pakistan, 1973, Art. 185(3)--Mode of Service--Powers of Special Judge--In exercise of powers conferred by this Section the special Judge enjoys powers to adopt the methods specified therein, separately or collectively and also to follow any other mode as is directed by him for effecting service--Held: Section 42 of the Act, 1977 seems to be more comprehensive than Section 9(3) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act 1997 as it gives a discretion as well to the Special Judge to adopt any other mode of Service, other than notified therein--Further held: Legislation to expanded the scope of exercising discretion stead of using the word "and" had used the word "or". [P. 1290] B & C
(iv) Words and Phrases--
----Word "or" defined. [Pp. 1290 & 1291] D
Words and Phrases, Permanent Edition, (Vol. 30) page 55, AIR 1963 SC 1638 and PLD 1957 (WP) Karachi 956, relied.
(v) Prevention of Smuggling Act, 1977 (XII of 1977)--
----Ss. 31(1) & 31(3)--Issuance of show-cause notice by Special Judge to appellant to appear and explain as to why properties mentioned in the notice, suspected to be acquired through smuggling be not forfeited to the Federal Government--Copy of notice endorsed/sent to relatives/associate--Relatives/associates were required to be served with notice separately after recording of evidence, if it has been proved that properties being forfeited--Contention of--Held: Service of notice upon the relatives/associates of the appellants had not to be effected after recording evidence in respect of a person against whom information has been laid of holding property which is reasonably suspected to be acquired by smuggling in view of the provisions of Section 31(3) of Act, 1977--Further held: Scheme of law u/Ss. 31(1) & (3) abundantly makes it clear that the relatives/associates of such persons have to be joined in the proceedings simultaneously. [P. 1291] E
(vi) Prevention of Smuggling Act, 1977 (XII of 1977)--
----S. 42--Mode of service--Held: Wisdom behind is that the person to whom notice had been issued must be informed by adopting more than one means of service--This is not only for the person who has acquired the property by smuggling but relatives/associates as well, because generally in such like cases, the property is transferred by such person to their relatives or associates with a view to save themselves from criminal or civil liability in future. [P. 1291] F
(vii) General Clauses Act, 1897 (X of 1897)--
----S. 27--Service by post--Service by post is deemed to be effected properly, unless contrary is proved. [P. 1292] G
1982 SCMR 354.
Khawaja Haris Ahmad, ASC and Mr. M.A. Zaidi, AOR for Appellants (in both cases).
Respondents Nos. 1 & 2: Ex-parte.
Dr. Babar Awan, ASC, Mr. Ejaz Muhammad Khan, and Mr. M.S. Khattak, AOR for Respondent No. 3.
Mrs. Naheeda Mehboob Ellahi, Deputy Attorney General for Pakistan, for State.
Date of hearing : 29.3.2006.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--Above noted appeals are by leave of the Court against the judgment of the Peshawar High Court Peshawar dated 14th December 2000 passed in Writ Petitions Nos. 1275 & 1276 of 1996. Whereas a petition for leave to appeal has also been filed by Noor Alam, challenging the same judgment. As common questions of facts and law are involved, therefore, we intend to decide the appeals and petition by instant common judgment.
"A copy of this order alongwith a notice, under Section 31 of the Prevention of Smuggling Act, 1977 be sent to Haji Muhammad Ayub Khan Afridi and to each of his relatives/associates, mentioned above by registered post as well as through Political Agent Khyber Agency, for their service. It is directed that a copy of the notice shall also be affixed on the main entrance of the buildup properties mentioned at Sr. Nos. 1 to 4 below.
It is also directed that notices shall also be sent to the Managers for publication in the dailies Mashriq' andFrontier Post' Peshawar."
In compliance with the above order, the process server approached them and returned the process with the endorsement that "Haji Muhammad Ayub Khan Afridi was not present at his home; his brother Haji Shah Zamir Afridi and other relatives Hunar Khan and Babu Khan, etc. declined to accept the notice; the contents of the same were read over to them; original notice was affixed on the doors of the addresses".
Similarly, notices by registered post were also sent as per the postal receipts available on record. Simultaneously, publication of the complete notice alongwith the names of the relatives/associates, to whom the same was communicated, was also made in dailies Mashriq' on 17th May 1995 and inFrontier Post' on 18th May 1995. But neither the appellant nor any of his relative/associate opted to appear and contest the notice, except Noor Alam
(petitioner), grandson of appellant who appeared before the Special Judge on 1st June 1995 and obtained a copy of joint notice, issued to him and remaining persons. Thereafter, he instituted Writ Petition No. 627 of 1995 before the
Peshawar High Court, Peshawar, challenging the issuance of the notice and succeeded in obtaining stay order dated 19th June 1995. Perhaps due to this reason, no progress was made by the learned Special Judge. However, the stay order dated 19th June 1995 was vacated on 11th July 1995 and thereafter on 12th July 1995, learned Special Judge, in respect of non-appearance of appellant, observed as follows:--
"4. A careful perusal of the "information" supported by various documents consisting of registration deeds, Court decrees and other revenue record, involvement and conviction of Haji Muhammad Ayub Afridi by Courts in various cases relating to smuggling/dealing in narcotics, inclusive of reports by the agencies concerned regarding his absconsion in Illaqa Ghair i.e. Terrah, indicates no justification for conducing further proceedings against Haji Muhammad Ayub Afridi and his other relatives/associates which cannot produce the desired result, but a futile exercise. There appears no possibility of their appearance in the near future. He is also wanted for trial by foreign Courts especially USA in connection with export of huge narcotics."
Later on, appellant and his relatives/associates filed two separate appeals Bearing Nos. 270 & 271 of 1995, before the Appellate Court, under the Act of 1977. Both the appeals were dismissed vide judgment dated 30th October 1996.
It may be noted that during the pendency of appeals filed by the appellant and his relatives/associates, an application was filed by the Special Public Prosecutor, Anti Narcotics Forces, on which learned Special Judge, in exercise of powers under Section 39 of the Act, 1977, passed an order dated 25th September 1995, directing the occupants of the properties, which were to be forfeited in favour of the Federal Government, to surrender/deliver their possession with 30 days, failing which directions were made for taking over possession of the properties in terms of sub-sections (2) to (5) of Section 39 of the Act, 1977. Against this order, appellant alone preferred Appeal No. 1038 of 1995, which was dismissed on 23rd October 1995 and Civil Petition No. 579 of 1995, filed by him against this order before this Court, was also disposed of vide order dated 7th November 1995.
Feeling aggrieved from the orders dated 12th July 1995 and 30th October 1996, appellant and his relatives/associates instituted two Writ Petitions Nos. 1275 and 1276 of 1996, respectively. Both the writ petitions alongwith the petitions filed by Noor Alam Being No. 627/1995, were dismissed by means of impugned judgments. Hence these appeals, by leave of the Court and petition for leave to appeal.
Leave to appeal was granted, inter alia, to examine the following questions:--
(i) There are no reasons on which the notice issued under Section 31 of the Prevention of Smuggling Act, 1977 is based and what is the legal implication if no reasons are stated in the said notice.
(ii) The notice under Section 42 of the Prevention of Smuggling Act, 1977 was not served as required under the law.
(iii) The petitioners were not notified the date on which effective proceedings were conducted against them.
(iv) That the provisions of Section 32(1) of the Act ibid have not been complied with.
(a) Appellants and petitioner have been condemned unheard as no notice was served upon them.
(b) The relatives/associates of the appellant were required to be served with the notice separately, after recording of the evidence, if it has been proved that properties being forfeited, do vest in them in their own right, as per the provisions of Section 32(1) of the Act.
(c) The mode adopted by the Special Judge for effecting service of notice upon the appellant, was unwarranted under the law, as he was not found at his home. When the process server failed to serve notice on him, the Court should have tried to search him and thereafter may have ordered affixation of notice at his home, as well as by making publication in the newspapers.
Reliance in this behalf was placed by him on Ahmed Khan vs. Muhammad Qasim (2002 SCMR 664).
Learned counsel appearing for Anti Narcotics Force and learned Deputy
Attorney General of Pakistan stated that the notices were prepared and served in accordance with law as the appellant declined to accept the notice, therefore, simultaneously, they were served by affixation of the notice at the door of the house, despite issuance of publication in dailies Frontier Post' andMashriq' in terms of Section 42 of the Act 1977.
It may be noted that Section 42 of the Act 1977 has allowed mode of service of notice by means of registered post to the persons on whom it is required to be served or, if such service is not possible, by affixing it on a conspicuous place or part of the premises of such person where he last resided or carried on business or personally worked for gain, or by any other mode as the Special Judge or the Special Appellate Court may direct. In exercise of powers conferred by this Section the Special Judge enjoys powers to adopt the methods specified therein, separately or collectively and also to follow any other mode as is directed by him for effecting service. There is no bar upon the Special Judge for effecting service upon the person/persons, to whom notices have been given, calling upon him/them to show-cause as to why the whole or any part of such property acquired by him or them, belong to him or in the name of any of his relatives or associates, which is reasonably suspected to be acquired by smuggling, be not forfeited. Such powers are very familiar in the judicial system prevailing in this country, as there are some other laws as well like Banking Companies (Recovery of Loans, Advances, Credits and Finances)
Act, 1997. Under Section 9(3) of this Act, Banking Court was authorized to serve plaint on the defendant through the bailiff or process-server of the
Court by registered post acknowledgment due by courier and by publication in one English language and one Urdu language daily newspapers and service duly effected in any one of the aforesaid modes shall be deemed to be valid service for the purpose of this Act. Section 42 of the Act, 1977 seems to be more comprehensive then the laws referred to herein before as it gives a discretion as well to the Special Judge to adopt any other mode of service, other than notified therein. The legislature to expand the scope of exercising discretion instead of using the word "and" has used the word "or". The word "or" has been employed which authorizes the Court to adopt alternatively any of the modes specified therein, simultaneously, because with reference to context at times, word "or" can also be used conjunctively. In
Words and Phrases, Permanent Edition, Vol.30, (page 55), the word
"or" has been described as "OR" is a conjunction, disjunctive and correlative, used to connect co-ordinate words, phrases or clauses, i.e. expressions having the same grammatical construction".
Similarly reference can also be made to shri Govindlalji v. State of Rajasthan
(AIR 1963 SC 1638) and C.E. Gibban v. Pakistan (PLD 1957 (WP) Karachi 956). In the last mentioned judgment, it has been observed word or' has, prima facie, an alternative significance but not that it never meansand'.
Thus it is held that Special Judge exercised all options available to him for effecting service upon the appellant and his relatives/associates. Service of notice upon the relatives/associates of the appellants had not to be effected after recording of evidence in respect of a person against whom information has been laid of holding property which is reasonably suspected to be acquired by smuggling, in view of the provisions of Section 31(3) of Act, 1977, which provides that where a notice under sub-section (1) issued to any person specifies any property as being held on his behalf by any of his relatives or associates, a copy of the notice shall also be served upon such relative or associate. Scheme of law under Section 31(1) and (3) abundantly makes it clear that the relatives/associates of such person have to be joined in the proceedings simultaneously.
Learned counsel for appellant(s) while relying upon the case of Ahmed Khan (ibid) contended that as according to the report of process server, appellant was not present at his home, therefore, before affixing the notice at his home, or making publication in newspaper, serious steps should have been taken to effect the personal service upon him. In our opinion, the authority relied upon by the learned counsel was not helpful to him because, as it has been discussed herein above, the Special Judge had discretion to adopt any of the modes mentioned in Section 42 of the Act, 1977 or follow all the modes, simultaneously, besides effecting service by any other mode mentioned therein. The wisdom behind is that the person to whom notice had been issued must be informed by adopting more than one means of service. This is not only for the person who has acquired the property by smuggling but relatives/associates as well, because generally in such like cases, the property is transferred by such persons to their relatives or associates, with a view to save themselves from criminal or civil liability, in future.
It is equally important to note that appellant and others had not denied that they were living at the addresses on which the notices were served upon them. In this behalf report of the process server indicates that he succeeded in establishing contact with all of them at one place, although appellant was not present at his home but remaining persons particularly Haji Shah Zamir declined to accept the notice, therefore, the contents of the same were read over to them and original notice was fixed on the door. In this manner, denial to accept the notice by him tantamount to acquiring the knowledge about the proceedings and affixation of original notice at the door of their home would be deemed to be service upon all of them, including the appellant, because it was nobody's case whether affixation took place or not. Likewise, publications appeared in both the newspapers and the service in registered cover, sent to them including appellant by post, would be deemed to be a valid service.
It may also be noted that under Section 27 of the General Clauses Act, 1897 the service by post is deemed to be effected properly, unless contrary is proved. In this behalf, the appellant categorically has never pleaded anywhere that the service by post was also not effected, therefore, following the law laid down in the case of Amir Din v. Muhammad Siddique (1982 SCMR 354), the service would be deemed valid for all intents and purposes. This aspect of the case can also be examined from another angle namely petitioner Noor Alam challenged the action of issuance of notice in pursuance of order dated 15th May 1995 by the Special Judge before the High Court, as record reveals that he is grandson of appellant and they were living in the same house under one roof i.e. house, as per the report of process server, which has been endorsed by the Political Agent, Khyber Agency, coupled with the fact that remaining appellants had not pleaded before any of the three forums that they are not residents of the house, where the process server reached for effecting service as throughout there case had been that they were not duly served, after the issuance of the notice by the Special Judge, on receipt of information. Thus, the argument being devoid of force merits no consideration.
Learned counsel for appellant vehemently contended that in terms of Section 32(1) of the Act, 1977, relatives/associates of the appellant were entitled for a separate notice, after recording of evidence, to provide them reasonable opportunity of being heard.
This argument is devoid of force. Section 32(1) of the Act, 1977 conceives a situation where a person is holding property which is reasonably suspected to be acquired by the smuggling and his relatives/associates, holding the property on his behalf, therefore, they are also to be joined in the proceedings. Provisions of Section 32(1) of the Act, 1977 are to be read along with Section 31(3) of the Act, 1977. Admittedly, contents of the notice indicate that the copies of the same were also endorsed to them and one of them Noor Alam had filed writ petition before the High Court, challenging the same. Therefore, we are of the opinion that as the proceedings were initiated on the basis of information received by the Special Judge, passed on to him on 15th May 1995, on having gone through the evidence produced before him to initiate action against the appellant. As the list of the properties produced before the Court contains the names of some of the respondents, therefore, they were bound to contest the notice if they were holding the properties in their own right and once on the basis of evidence produced before the Court, notices have been issued, simultaneously to such persons, who have acquired the property by smuggling and his relatives/associates on whose behalf the property exists, though not holding that in their own rights but as retainer on behalf of the person, to whom notice has been issued under Section 31(1) of the Act, 1977, they were bound to offer explanation about the forfeiture of the property by the Federal Government on receipt of notice. Surprisingly, in instant case, no one had appeared for the reasons best known to them, despite notice served upon them, except one Noor Alam who instead of filing reply to notice, challenged the same by filing writ petition. Ultimately, when the matter had been decided against them on 12th July 1997, they filed an appeal within 30 days, as envisaged under the law, which would mean that they had a notice about the proceedings against them, otherwise, there was no event available to them to file appeal within 30 days, if at all they had not been served. In fact, the properties vest in the name of appellant. This fact can be substantiated by making reference to the order dated 25th September 1995 passed by the Special Judge on the application under Section 39 of the Act, 1977. Although this order was against all the appellants but they did not bother to challenge the same, except appellant before the Appellate forum, which has dismissed his appeal on 23rd October 1995 and against this order a civil petition for leave to appeal was also disposed of by this Court on 7th November 1995. It indicates that as far as the other appellants are concerned, they had no vested right, otherwise, they would have jointly filed appeal before the Special Judge alongwith appellant.
On merits, learned counsel contended that there is no evidence available on record to substantiate the accusation of acquiring the property by smuggling.
In this behalf it may be noted that a perusal of the orders dated 15th May 1995, 12th July 1995 and 14th December 2000, indicates that the conclusion was drawn against the appellant on the basis of the material placed before the Courts. If there is some technical error in conducting the proceedings or recording of evidence, etc, it would not be fatal in view of the fact that sufficient material is available on record to hold that the property was acquired by appellant in his own name as well as in the names of other relatives/associates by smuggling, to whom notices were also issued and as all the forums below, on having taken into consideration the material on record have expressed their opinion against the appellants, therefore, no interference in such concurrent findings of fact is called for.
No other point was argued by the learned counsel.
Thus for the foregoing reasons, both the appeals and the petition are dismissed.
(Javed Rasool) Appeals and petition dismissed.
PLJ 2006 SC 1294 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Muhammad Nawaz Abbasi & Raja Fayyaz Ahmed, JJ.
SIKANDAR RAZA--Petitioner
versus
STATE--Respondent
Crl. P. No. 321 of 2004, decided on 6.1.2006.
(On appeal from the judgment dated 5.7.2004 of the Lahore High Court Rawalpindi Bench, Rawalpindi, in Crl. No. 404 of 2001).
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction & sentence--Challenge to--Appreciation of evidence--Held: Ocular testimony of PWs, confessional statement of petitioner/accused was on record--A huge quantity of 30 kg of charas had been recovered at the pointation of accused from inside the Trunk belonging to him--Report of chemical examiner was positive--Accused put a quite contradictory version in his statement under Section 342 Cr.P.C. and in cross-examining a P.W.--No illegality, misreading or non-reading of evidence found in the impugned judgments--Leave refused. [P. 1295] A & B
Mr. Altaf Ellahi Sheikh, ASC and Ch. Muhammad Akram, AOR for Petitioner.
Nemo for State.
Date of hearing : 6.1.2006.
Judgment
Abdul Hameed Dogar, J.--This petition is directed against the judgment dated 5.7.2004 of a learned Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Criminal Appeal No. 404 of 2001 filed by petitioner was dismissed and conviction and sentence recorded under Section 9-C of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as `the Act') to imprisonment for life with a fine of Rs. 5,00,000/- or in default to further undergo two years R.I. was maintained and benefit of Section 382(B) Cr.P.C. was also extended to him.
Precisely stated the facts of the case of the prosecution are that on 10.11.1998 at 9.00 a.m. complainant Muhammad Sharif Toor PW-5 along with other officials was present at Channi Bridge, Rewat. He received a wireless message from Shahid Hamid Jafferi, Regional Director that petitioner was travelling in Vehicle No. IDT-2346 with huge quantity of Charas. It was at about 9.45 a.m. above mentioned vehicle arrived at the spot. The petitioner was apprehended and on his pointation a Trunk lying on the roof of the Coach was brought down and was opened by the petitioner while taking out the key from his pocket. Out of the said Trunk 30 bundles of Charas wrapped in polythene bag was recovered which were weighed to be 30 K.Gs. Out of the same 1200 grams were separated for chemical analysis which were reported as positive by the Chemical Examiner.
The prosecution in order to prove its case examined six witnesses in all.
Petitioner in his statement recorded under Section 342 Cr.P.C. denied the case of prosecution and claimed that he was apprehended by the police from Adam K. Cheema Bus Stop, District Sialkot whereafter was brought to Rawalpindi and above said property was foisted upon him. Though he claimed to be examined himself on Oath yet did not examine himself on oath but examined one Shahid Sheikh, Clerk Motor Taxation Branch, Islamabad in defence. On the conclusion of trial the petitioner was found guilty and convicted and sentenced as stated above.
We have heard Mr. Altaf Ellahi Sheikh, learned ASC for the petitioner and have gone through the record and proceedings of the case in minute particulars.
In this case irrespective of above said ocular testimonies furnished by Muhammad Sadiq (PW-4) and complainant Muhammad Sharif Toor, FIO (PW-5). Confessional statement of petitioner recorded by Malik Sanaullah, Magistrate (PW-6) was also brought on record. A huge quantity of 30 Kgs of Charas has been secured at the pointation of petitioner from inside a Trunk belonging to him. Out of recovered charas 1200 grams Charas were separated and sent for chemical analysis the report of which has been found positive which further corroborates the case of prosecution. It is wroth mentioned that presence of recovered charas was in the exclusive knowledge of the petitioner and it was because of such reason, he took out the key from his pocket of his shirt and opened the Trunk and pointed out the contraband. At trial, not only recovery of charas but key, Trunk and other article was produced and exhibited at the trial which further strengthens the case of prosecution. A quite contradicting version has been taken by the petitioner in his defence. While cross-examining the witnesses he suggested them that he such arrested from his village and brought to police station and Charas was planted on him whereas in his statement under Section 342 Cr.P.C. he stated that he was present at Adam K. Cheema, District Sialkot and was apprehended from there and was brought to Rawalpindi, whereafter said Charas was foisted upon him.
Learned counsel for the petitioner though argued at length yet could not refer any illegality, mis-reading or non-appraisal of evidence. There being concurrent findings of two Courts below while convicting and sentencing the petitioner, we do not find any reason to interfere with the same. Resultantly, the petition is dismissed and leave to appeal refused.
(Javed Rasool) Leave refused.
PLJ 2006 SC 1296 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Rana Bhagwandas, Javed Iqbal, Abdul Hameed Dogar, Faqir Muhammad Khokhar, Mian Shakirullah Jan, M. Javed Buttar, Tassaduq Hussain Jillani and Syed Jamshed Ali, JJ.
MUHAMMAD MUBEEN-US-SALAM and others--Apellants
versus
FEDERATION OF PAKISTAN through SECRETARY, MINISTRY OF DEFENCE and others--Respondents
C.As. Nos. 792 to 816 of 2005, C.M.As. Nos. 2208-2211/2003 in C.R.Ps. Nos. 426, 427, 428, 430, 432, 429, 421 & 431 of 2001, C.M. Appeals Nos. 138-139/2003, 47-48/2004 in C.P. No. Nil/2003, C.Ps. Nos. 305-L/2001, 305-L/2001, 586, 587-L/2001, 643-L/2001, 647-L/2001, 931-L/2001, 980-L/2001, 998-L/2001, 999-L/2001, 1008-L/2001, 1024-L/2001, 1069-L/2001, 1065-L/2001, 1066-L/2001, C.M.A. No. 1439-L/2002 in C.P. No. 1276-L/2001, C.Ps. Nos. 1291-L/2001, 1491-L/2001, 1509-L/2001, 1557-L/2001, 1638-L/2001, 1818-L/2001, 1909-L/2001, 1983-L/2001, 2042-L/2001, 2026-L/2001, 2030-L/2001, 2189-L/2001, 2770-L/2001, 2307-L/2001, 2378-L/2001, 2426-L/2001, 2495-L/2001, 2498-L/2001, 2568-L/2001, 2643-L/2001, 2769-L/2001, 2972-L/2001, 2777-L/2001, 2951-L/2001, 3105-L/2001, 3108-L/2001, 3173-L/2001, 3218-L/2001, 3247-L/2001, 3248-L/2001, 3274-L/2001, 3275-L/2001, 3774-L/2001, 3775-L/2001, 3994-L/2001, 4026-L/2001, 4027-L/2001, 4073-L/2001, 347-K/2001, 348-K/2001, 1202-L/2002, 1346-L/2002, 1808-L/2002, 3094-L/2002, 3095-L/2001, 3477-L/2002, 3632-L/2002, 3797-L/2002, 3807-L/2002, 4206-L/2002, 57-L/2003, 180-L/2003, 215-K/2003, 276-L/2003, 284-K/2003, 293-L/2003, 329-L/2003, 401-K/2003, 441-L/2003, 442-L/2003, 544-L/2003, 584-K/2003, 654-L/2003, 712-L/2003, 735-L/2003, 884-L/2003, 911-K/2003, 912/2003, 529-531/2004, 982-L/2003, 1025-L/2003, 1112-L/2003, 1166-L/2003, 1267/2003(DB), 1271-1272/2003, 1282-1283/2003, 1288-L/2003, 1312/2003, 1314-L/2003, 1339/2003, 1415/2003 (C.O.) 1432-L/2003, 1515-1516/2003, 1611/2003, 1645-1648/2003, 1657-1658/2003, 1674-L/2003, 1788-L/2003, 1857/2003, 1899-1900/2003, 2003/2003, 2013/2003, 2134-L/2003, 2139-L/2003, 2140-2141-L/2003, 2146-L/2003, 2211-L/2003, 2254-L/2003, 2299-L/2003, 2363-L/2003, 2434/2003, 2565/2003, 2566-L/2003, 2568-2569/2003, 2579, 2604/2003, 515/2004, 2017-2020/2003, 2576/2003, 2627/2003, 2748-L/2003, 2752-L/2003, 2773-L/2003, 2774-L/2003, 2792-2793-L/2003, 2805-L/2003, 2825-L/2003, 2836-L/2003, 2881-L/2003, 3001/2003, 3011/2003, 3074-L/2003, 3076/2003, 3088/2003, 3134/2003, 3175/2003, 3182/2003, 3238-L/2003, 3288-L/2003, 3369-3381/2003, 3386/2003, 3387/2003, 52/2004, 74/2004, 106-L/2004, 109-L/2004, 136-L/2004, 192/3004, 193/2004, 235-L/2004, 265/2004, 294-L/2004, 329/2004, 337-L/2004, 359-K/2004, 349-353/2004, 365-L/2004, 380-381-K/2004, 386-K/2004, 391-392/2004, 416-L/2004, 418-L/2004, 419/2004, 421-L/2004, 419-424-K/2004, 425-K/2004, 499/2004, 425-L/2004, 464-K/2004, 466-K/2004, 527/2004, 562/2004, 514-515-K/2004, 545-K/2004, 627-629/2004, 657-K, 659-K/2004, 671-K/2004, 703/2004, 802-K, 812-K/2004, 889/2004, 905/2004, 914/2004, 927/2004 (Ch.O), 1006/2004, 1007/2004, 1021/2004, 1022/2004, 1048-L/2004, 1074-L/2004, 1112-L/2004, 1125/2004, 1127/2004, 1142-L/2004, 1145-L/2004, 1146/2004, 1188-L/2004, 1343-1448/2004, 1413/2004, 796-K/2005, 1492/2004, 1598-L/2004, 1610/2004, 1625/2004, 1637-1638-L/2004, 1668-L/2004, 1671/2004, 1683-1685/2004, 1705/2004, 1711/2004, 1743/2004, 1749/2004, 1773/2004, 1779/2004, 1780-1788/2004, 1798/2004, 1811/2004, 1827-1828, 1915-1916/2004, 1829/2004, 1834/2004, 1836/2004, 1850-L/1852-L/2004, 1869/2004, 1876/2004 (Ch.O.), 1889/2004, 1909-L/2004, 1924-1925/2004, 1937/2004, 1939/2004, 1942/2004, 1950/2004, 1960/2004, 1974/2004, 1989/2004, 1990-L/2004, 1993/2004, 2001/2004, 2004-2009/2004, 2054-2059/2004, 2091/2004, 2093-2094/2004, 2091/2004, 2095/2004, 2128/2004, 2134/2004, 2137-2144/2004, 2164/2004, 2179/2004(C.O.), 2181-2182/2004, 2186/2004, 2189/2004, 2308-L/2004, 2317-L/2004, 2342-L/2004, 2349-L-2352-L/2004, 2347-2348-L/2004, 2377/2004, 2381-L/2004, 2387-L/2004, 2407/2004 (C.O.), 2411/2004, 2412/2004, 2419/2004, 2431/2004, 2463/2004, 2464/2004, 2478/2004, 2506-L/2004, (Service), 2522-L/2004, 2533/2004, 2536/2004, 2539/2004, 2561/2004, 2626/2004, 2631/2004, 2634/2004, 2707/2004, 2714/2004, 2723/3004, 2726/2004, 2747-L/2004, 2748/2004, 2752-2753/2004 (Ch.O.), 2757-L/2004, 2758-2759/2004, 2760-L/2004, 2761/2004, 2762/2004, 2821-L/2004, 2881-L/2004, 2890/2004 (Ch.O.), 2896-L/2004, 2897-L/2004, (Service), 2985-L/2004, 3085-L/2004, 3107-L/2004, 3113-L/2004, 3136-3137-L/2004, (Service), 3138-L/2004, 3139-L/2004, 3239-L/2004, 3243-L/2004, 3277-L/2004, 3308-L/2004, 3329-L/2004, 3361-L/2004, 3376-L/2004, 3377-3379-L/2004, 3380-L/2004, 3388-L/2004, 3417-L/2004, 2/2005, 5-L/2005, 2-L/2005, 3/2005, 14-L/2005, 25/2005, 27-28/2005, 41-L/2005,
(i) Civil Servants Act, 1973 (LXX of 1973)--
----Ss. 2(1)(b) & 5--Service Tribunals Act (LXX of 1973), Preamble & S. 2(a)--Constitution of Pakistan (1973), Arts. 240, 260 & 212--"Civil servant"--Definition connoted--Expressions--Term `civil servant' as given in S. 2(1)(b) of Act, includes a person, who is a member of All Pakistan Services or is a civil servant of the Federation or holds a civil post in connection with the affairs of the Federation including post connected with defence but does not include the persons mentioned in sub-clauses (i) and (ii) to the above clause (b), whereas S. 5 of Civil Servants Act, provides that the appointment to three categories of the persons shall be made in the prescribed manner. [P. 1334] B
(ii) Civil Servant Act, 1973 (LXXI of 1973)--
----Ss. 2(1)(b) & 5--Constitution of Pakistan, 1973--Arts. 240, 260 & 212--Preamble--Civil Servant and "Service of
Pakistan" not synonymous--Perusal of definition of the term civil servant' in S. 2(1)(b) of the Civil Servants Act, it emerges that in order to attain the status of acivil servant' it is necessary that the person should be a member of All Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation. There may be some employees who fall within the definition of `civil servant' for the purpose of Service Tribunal Act, 1973 but do not enjoy the status of All
Pakistan Service or of a civil service of the Federation--Both these expressions are not synonymous. [Pp.
1334 & 1335] C
(iii) Service Tribunals Act, 1973 (LXX of 1973)--
----S. 2-A--Constitution of Pakistan, (1973), Art. 260--Civil Servants Act (LXXI of 1973), S. 2(1)(b)--"Service of Pakistan"--"Civil Servant"--Connotation--Art. 260 of the Constitution of Pakistan, 1973 empowers the Legislature to declare any service to be service of Pakistan by or under an act of the parliament--Nevertheless it does not empower the Legislature to declare any person to be in the Service of Pakistan, on the basis of a legal fiction--Legislature by using expression "shall be deemed in S. 2-A, Service Tribunals Act, has allowed to enjoy the status of Civil Servant, even to those persons who were excluded from its definition in terms of S. 2(1)(b) of the Civil Servants Act, which also includes a person, who is a contract employee--Art. 260 of the Constitution does not mandate to the Legislature to declare any person to be in service of Pakistan, and by deeming clause to be a civil servant for the purpose of Service Tribunals Act, 1973--If an employee stands excluded from the definition of "Civil Servant" as contained in Civil Servants Act, 1973, then statutory provision made for civil servants will not apply--To illustrate the point it can be said that Members of the Armed Force, through fall in the category of "service of Pakistan", but they are not civil servant with in the meaning of Civil Servants Act and Service Tribunals Act--Under Art. 260 of the Constitution, a person can be declared to be in service of Pakistan if his duties have a nexus with the affairs of the Federation, meaning thereby a person who is playing an active role in the performance of sovereign functions of the State and exercises public powers can legitimately claim to be in the service of Pakistan--Parliament, can declare any service of Pakistan but subject to the condition that such declaration should not be based on legal fiction, secondly, conditions under Art. 260 of the Constitution of Pakistan, 1973 with regard to having nexus/connection with the affairs of the Federation have not been fulfilled. [P. 1351 to 1354] R, S, T & U
Constitution of Pakistan, 1973--
----Art. 260--Civil Servant Act (LXXI of 1973) S. 2(1)(b)--"Civil Servant"--Definition connoted--Expressions--Expression "Service of Pakistan" used in Art. 260 of the Constitution has much wider connotation than the term "Civil Servant" in Civil Servant Act, while "Civil Servant" is included in expression "Service of Pakistan", the vice versa is not true, "Civil Servant" as defined in the Civil Servants Act, 1973 is just a category of "Service of Pakistan" mentioned in Art. 260 of the Constitution of Pakistan.
[Pp. 1351 to 1354] R & T
(iv) Constitution of Pakistan, 1973--
----Arts. 8, 184, 185, 186, 187(1) & 212(3)--Judicial review--Examination of vires of a Statute--Scope--Surpeme Court in exercise of Constitution jurisdiction conferred upon it under various provision of the Constitution, enjoys power of judicial review, it has also been vested with inherent powers to regulate its own authority of judicial review--Supreme Court is competent to examine the vires of a Statute, if it has been promulgated in derogation of any of the provisions of the Constitution, apart from Art. 8 of the Constitution of Pakistan, 1973. [Pp. 1344, 1345, 1346 & 1348] F to J
(v) Constitution of Pakistan, 1973--
----Arts. 184, 185, 186, 187(1) & 212(3)--Constitutional jurisdiction--Question of law--Ground of laches cannot prevail on question relating to the Constitutionality of actions, which is unconstitutional cannot become constitutional by lapse of time nor can it vest anyone with any kind of legal right to benefit from such constitutional Act--Supreme Court cannot be refrained from examining the constitutionality of a law because of lapse of time, therefore, notwithstanding any objection, if constitutionality of law is under challenge, its vires can be examined despite fact that it had remained on the statue book for a considerable time. [Pp. 1349 & 1350] K & L
(vi) Constitution of Pakistan, 1973--
----Arts. 2-A & 212--Service Tribunals Act (LXX of 1973), S. 2-A--Service of Pakistan--Element of Public duty--Service Tribunals Act, 1973 is a law enacted under Art. 212 of the Constitution and though the Parliament is competent to declare a person to be in Service of Pakistan, such person, must perform an element of public duty. [Pp. 1362 & 1363] FF
(vii) Service Tribunals Act, 1973 (LXX of 1973)--
----S. 2-A--Constitution of Pakistan (1973), Arts. 63 & 212--Service of Pakistan Only those persons who are covered within the definition of "Service of Pakistan" in terms of Art. 212 (1)(a) of the Constitution, can invoke jurisdiction of Service Tribunal, otherwise when Constitution framers have used the expression "Service of any statutory body or any body, owned and controlled by Government and interest" along with expression "Service of Pakistan" may have used it--Such distinction is presumed to be in knowledge of the framers of the Constitution of Pakistan, 1973. [Pp. 1363 & 1364] GG
(viii) Constitution of Pakistan, 1973--
----Arts. 212(3) & 185(3)--Constitutional jurisdiction--Scope--Whenever there is a pure question of law, it can be raised at any time, either by party or taken up by Court itself, and the duty to decide same in accordance with law cannot be avoided on an untenable alibi because such duty flows from the Constitution--Art. 212(3) of the Constitution of Pakistan, 1973, casts duty upon Court to specify as to whether a substantial question of law of public importance is involved, before leave to appeal is granted which would mean that the leave can be granted only is Supreme Court is satisfied to examine a particular aspect of the case, including the question of constitutionality of substantive law on the basis of which case has arisen for adjudication. [P. 1350] M & N
(ix) Service Tribunals Act, 1973 (LXX of 1973)--
----S. 5--Constitution of Pakistan, 1973, Art. 212(3)--Provision of S. 5 of the Service Tribunals Act, 1973, if competent to adjudge the validity of a statute, therefore, the Supreme Court while granting leave to appeal under Art. 212(3) of the Constitution, being an appellate forum cannot logically be denied the same power as an appal is always considered to be continuation of the original proceedings. [Pp. 1350 & 1351] O & P
(x) Service Tribunals Act, 1973 (LXX of 1973)--
----S. 2-A--Constitution of Pakistan (1973), Art. 260--Civil Servants Act (LXXI of 1973), S. 2(1)(b)--Civil Servants'--Definition--Art. 260 of the Constitution of Pakistan has conferred authority upon the Parliament to declare any other service to be the service of Pakistan under an Act of Parliament--Word "declare" in Art. 260 of the Constitution is of much significance--Essentially on the plain reading of the definition of "Civil Servant" both under S. 2-A of Service Tribunals Act, and S. 2(1)(b) of Civil Servants Act, 1973 there was absolutely no doubt--Parliament had also not identified any doubt as would be evident from the Parliament debates, which took place at the time of promulgation of S. 2-A, Service Tribunals Act, 1973--Declaration, however, had not been made to clarify any doubt rather by introducing a legal fiction, the person working in Government controlled Corporations, had been made Civil Servants for the purposes of Art. 260 of the Constitution--Language employed authorizing the Parliament to declare any service of Pakistan, only conferred authority to make a solid declaration in respect of any such service instead of bringing it into the folds of service of Pakistan by introducing legal fiction--Whether there was any doubt or difficulty in the definition of "Civil Servant" under S. 2-A Service Tribunals Act, 1973 which persuaded the legislature to make a declaration that the persons working in the Government controlled corporation shall be declared to be in the service of Pakistan and Parliament could decide to pass a declaratory Act, setting out what the law was. [P. 1359] BB & CC
(xi) Constitution of Pakistan, 1973--
----Arts. 240& 260--Service of Pakistan--Basic propositions for the purpose of ascertaining as to whether a person is in the service of Pakistan are that a declaration must exist that he shall be deemed to be in the service of Pakistan and such person must hold a post or office in connection with the affairs of the Federation or of a Province and includes in all Pakistan Service. [P. 1351] Q
(xii) Interpretation of Statutes--
----Deeming clause--Fiction--Impact--Fiction cannot be extended beyond the language by which it is created or by importing another fiction--Principle of harmonization shall be attracted to find out the solution--Impact of deeming clause can be curtailed if it produces a disgraceful result.
[P. 1354] V & W
(xiii) Interpretation of Statutes--
----General terms following particular ones apply only to such persons or things as are ejusdem with those comprehended in the language of the Legislature. [P. 1362] EE
(xiv) Service Tribunals Act, 1973 (LXX of 1973)--
----S. 2-A--Civil Servants Act (LXXI of 1973), S. 2(1)(b)--Constitution of Pakistan (1973), Art. 212--Leave to appeal was granted inter alia, to examine the questions whether or not the teachers/employees of PAF Educational Institutions managed by the Managing Committees for the purpose of S. 2-A of the Service Tribunals Act, 1973; and whether employees/teachers of PAF Education Institution could invoke the jurisdiction of the service tribunal as well as Supreme Court under Art. 212(3) of the Constitution and the question of validity and vires of S. 2-A of Service Tribunals Act, on the touchstone of Art. 212 of the Constitution. [P. 1315] A
(xv) Service Tribunals Act, 1973 (LXX of 1973)--
----S. 2-A--Civil Servants Act (LXXI of 1973), S. 2(1)(b)--Constitution of Pakistan (1973), Art. 260--"Civil Servant"--"Affairs of the Federation"--Ipso facto--Whether persons working in the Government controlled corporations in terms of S. 2-A, Service Tribunals, Act, are performing their functions in connection with the affairs of the Federation, being one of the most important conditions for attaining the status of being in the service of Pakistan--Determination--To determine as to whether a person is holding a cost or office in connection with the affairs of the Federation, an element of sovereign authority and exercise of public powers is essential to bring an employee or service within the scope of "affairs of the Federation"--Parliament cannot enact a law declaring any other service to be the service of Pakistan by or under any Act, without demonstrating that such declared service has nexus with the "affairs of the Federation"--Framers of the Constitution of Pakistan, have restricted power of the Parliament to declare any service to be service of Pakistan by placing an embargo that such person should also hold a post or office in connection with the "affairs of the Federation"--Unless such condition is fulfilled, every service cannot be declared by the Parliament to be service of Pakistan--Corporations or Bodies being distinct and different from the Government, their employees are not ipso, facto, in the service of Pakistan. [Pp. 1359 to 1362] DD
(xvi) Industrial Relations Ordinance (XCI of 2002)--
----Preamble--Service Tribunals Act, 1973 (LXX of 1973)--S. 2-A--Constitution of Pakistan (1973), Arts. 260 & 240--Service of Pakistan--Workers or workmen, whose cases are covered under the Industrial Relations Ordinance, 2002, cannot be declared to be in the service of Pakistan for the purpose of invoking the jurisdiction of the Service Tribunal because their appointment had not taken place by virtue of the terms and conditions laid down by the Legislature under Art. 240 of the Constitution nor such persons shall be deemed to be civil servants because they are not holding a permanent post for the purpose of discharging their functions in connection with the affairs of the Federation. [P. 1369] OO
(xvii) Service Tribunals Act, 1973 (LXX of 1973)--
----S. 2-A--Constitution of Pakistan (1973), Arts. 260, 240 & 212--"Civil Servant"--"Service of Pakistan"--Provision of S. 2-A, Service Tribunals Act, 1973 creates a new and district class of Government Servants, which is neither covered by the definition of "Civil Servant" nor by the definition of "Service of Pakistan", therefore, for this reason alone S. 2-A, Service Tribunals Act, 1973 becomes ultra vires of the Constitution Principles--Employees of Government controlled corporations are not covered by the definition of `Service of Pakistan' as provided under Art. 260 of the Constitution nor their cases can be taken up under Art. 212(1)(a) of the Constitution, as such the Federal Service Tribunal has no jurisdiction to grant them relief in terms of Art. 212(1)(a) of the Constitution--Administrative tribunals are set up for the purpose of exercising jurisdiction in respect of the terms and conditions of service of those persons, who are in the service of Pakistan and the same are required to be specified under Art. 240 of the Constitution--Only those persons, who are in the service of Pakistan, and if their terms and conditions are governed either by a statute or statutory rules, in terms and conditions are governed either by a statute or statutory rules, in terms of Art. 240 of the Constitution, can seek remedy before the Service Tribunals but whose terms and conditions of service are not governed by a state or statutory rules, cannot invoke the jurisdiction of the Federal Service Tribunal--According to Art. 240, the terms and conditions of the persons in service of Pakistan were to be determined by or under Act of Parliament while conditions of persons in service of Provinces were to be governed by or under Act or Provincial Assembly; this was the natural consequence of Art. 212 because earlier the civil servants were enjoying constitutional guarantees; the Parliament in pursuance of this Article proceeded to promulgate Civil Servant Act (LXII of 1973); similarly the Provinces also promulgated the Provincial Civil Servants Acts; these statutes provided the superstructure while for disciplinary matters and procedure thereof Rules were promulgated at different levels. It is true that a person may not be a civil servant within the meaning of Civil Servants Act, 1973 but may be in the service of Pakistan as is the case with an Ambassador; however, that fact remains that in such cases also appointments, terms and conditions of offices are determined by or under the Act of appropriate legislature or by rules framed pursuant to Art. 240 of the Constitution which is not so in respect of holders of constitutional offices; the terms and conditions of person in service of Pakistan were to be determined by or under the Act of the Parliament or the Provincial Assembly as mandated by Art. 240 of the Constitution, which shows that the determining factor as to whether or not a person is in the service of Pakistan, as to whether his terms and conditions are determined by law made under Art. 240 of the Constitution. Service Tribunal has no jurisdiction in cases where the terms and conditions of service of an employee in question are not or cannot be determined in terms of Art. 240 of the Constitution. [Pp. 1364 to 1366] II
(xix) Service Tribunals Act, 1973 (LXX of 1973)--
----S. 2-A--Constitution of Pakistan (1973), Arts. 184, 185, 187(1), 212(3) & 8--Vires of Statute--Statute which does not provide at least one appeal is unreasonable and can be struck down--Section 2-A, Service Tribunals Act, 1973 for such reason seems to be unconstitutional. [P. 1357] Y
(xx) Constitution of Pakistan, 1973--
----Arts. 260, 240 & 212--Service Tribunals Act, (LXX of 1973), S. 2-A--Constitution of Pakistan (1973), Arts. 260, 240 & 212--Provision of--Service Tribunals Act, 1973 only relates to change of forum but does not alter the terms and conditions of the employees, as there are corporations who have statutory rules for the purpose of governing the affairs of their employees and some of the Corporations have got only Regulations, therefore, out of both the categories, the one who fulfilled the requirement of Arts. 240 & 260 of the Constitution shall have remedy before the Service Tribunals, constituted under Art. 212 of the Constitution. [P. 1368] KK
(xxi) Service Tribunals Act, 1973 (LXX of 1973)--
----S. 2-A--Constitution of Pakistan (1973), Arts. 260 & 240--Scope of--If the terms and conditions of the employees have not been determined under Art. 240 of the Constitution, then they cannot seek remedy before the Service Tribunal and S. 2-A would not be of any help of them--Merely for the purpose of providing a forum the employees of Government controlled Authority cannot be considered in the Service of Pakistan.
[P. 1368] LL & MM
(xxii) Service Tribunals Act, 1973 (LXX of 1973)--
----S. 2-A--Constitution of Pakistan (1973), Arts. 240 & 260--Civil Servant--Employees of statutory Corporations whose terms and conditions of Service are regulated by statutory rules, would fall within domain of S. 2-A, Service Tribunals, Act, 1973, whereas the Government controlled Corporations which have got no statutory backing nor any statutory rules governing the terms and conditions of service of their employees, they would not fall within the mischief of S. 2-A of Service Tribunals Act, 1973. [Pp. 1370 & 1371] QQ
(xxiii) Constitution of Pakistan, (1973)--
----Art. 260--Service Tribunals Act, 1973 (LXX of 1973), S. 2-A--Civil Servants Act (LXXI of 1973), S. 2(1)(b)--Constitution of Pakistan (1973), Art. 260--Civil Servant--Impact of enacting S. 2-A, Service Tribunals Act, 1973--Section 2-A, indicates that provision has impliedly included in the definition of civil servant person who stands excluded by means of clauses (i), (ii) and (iii) of Section 2(1)(b) of the Civil Servants Act, 1973--There are a number of persons who are serving as deputationists, contingency as well as workmen in connection with the affairs of the Federation of Pakistan and can not avail remedy for the redressal of their grievance before the Service Tribunal but persons working under any authority, corporation, body or organization established by or under a Federal law, have been made eligible to seek remedy before the Service Tribunal, notwithstanding, the fact whether they are workers, workmen, permanent or temporary, holding a post on contract, Prima facie, this provisions of law, i.e. Section 2-A of Service Tribunal Act, 1973 has not advanced the cause of employees of Corporations, by providing them remedy before the Service Tribunal if it has statutory backing, and rules are framed thereunder, its employees other than the workers, used to invoke the jurisdiction of the High Court under Art. 199 of the Constitution whereas the employees governed by the relationship of master and servant rule used to approach the Civil Court for redressal of their grievance while workers and the workmen were eligible to seek remedy before Labour Courts, functioning under Industrial Relations Ordinance 2002, at the divisional level with a right of appeal before High Courts and appeal under Art. 185(2) or a petition for leave to appeal under Article 185(3) of the Constitution before Supreme Court, under which Supreme Court enjoys vast jurisdiction, as compared to limited jurisdiction under Article 212(3) of the Constitution.
[Pp. 1341, 1344, 1355 to 1357] D, E, X & AA
(xxiv) Constitution of Pakistan (1973)--
----Arts. 260, 240 & 212--Service Tribunals Act (LXX of 1973), S. 2-A--"Civil Servant"--"Service in connection with affairs of the Federation"--"Service of Pakistan"--Under the provision of S. 2-A of Service Tribunal Act, 1973, the Legislature has not declared the service of a person in the Government controlled organization to be the "Service in connection with the affairs of the Federation"--Under Art. 240 of the Constitution "Service of Pakistan" means any service, post or office in connection with the affairs of Federation--Essentially, when a person is not holding a post in connection with the affairs of the Federation or of a Province, he would not be entitled to claim himself to be in service of Pakistan; another important conditions is that he must hold a post or office in connection with affairs of Pakistan. [P. 1366] JJ
(xxv) Constitution of Pakistan (1973)--
----Arts. 240 & 260--Service Tribunals Act (LXX of 1973), S. 2-A--Civil Servant--Service--of Pakistan--Merely for the reasons that legislature has declared the service of a Government controlled Corporation/Authority to be service of Pakistan and such person is holding the post in connection with the affairs of Pakistan, attempt should be made to extend the benefit of S. 2-A, Service Tribunals Act, 1973 to some of the persons, whose cases are protected by the provisions i.e. Arts. 240 & 260 of the Constitution. [P. 1369] PP
(xxvi) Constitution of Pakistan, 1973--
----Art. 212(1)(a)--Intention of framers of Constitution had never been to provide a forum of the Service Tribunals to the employees of the Government controlled Corporation, in terms of S. 2-A, of Service Tribunals Act, 1973, had it been so, it could have incorporated the same in Art. 212(1)(a) of the Constitution. [P. 1364] HH
(xxvii) Vires of Statute--
-----Considerations--The question of constitutionality of a law, or to ut it differently, whether a law is intra vires or ultra vires does not depend upon consideration of jurisprudence or of policy; it depends simply on examining language of Constitution and of comparing the legislative authority conferred on the Parliament with the provisions of the sub-constitutional law by which the Parliament purports to exercise that authority. [P. 1357] Z
Judgment
Iftikhar Muhammad Chaudhry, C.J.--In Appeals Nos. 792 of 2005 and 148 to 167 and 174 to 178, etc. appellant questioned the judgment dated 27th November 2004, passed by Federal Service Tribunal. Relevant para therefrom reads thus:--
"11. The upshot of the whole discussion is that the appellant is a civil servant in terms of Section 2(i)(b) of the Civil Servants Act, 1973 and Section 2-A of the Service Tribunals Act, 1973 and therefore, can invoke the jurisdiction of this Tribunal for redressal of his grievance in respect of his terms and conditions of service. The FST's jurisdiction in the PAF Educational Institutions has been recognized by the Hon'ble Supreme Court in its judgments referred to earlier. The fact that the Appellant is considered as a civil servant for limited purpose for invoking the jurisdiction of this Tribunal, he will not be automatically entitled to all the benefits of rules, regulations which govern the civil servants Appellant shall be governed by the terms and conditions of service as laid down in AFM-540, which he accepted at the time of joining of service and any violation of the terms and conditions contained in the said Manual and if he is adversely affected he can approach the FST for redressal. The perusal of the AFM also indicates that some Government rules have been adapted by the PAF for application in these Institutions and now form part of AFM No. 54-2. The employees of these Institutions shall be governed by those adopted Government rules by the Respondents and therefore, the plea of the Appellant is accepted to that extent. All the Government rules and regulations governing civil servant which do not form part of the AFM No. 54-2 cannot be made applicable to him till these are adopted by the PAF Management Committee for these Institutions. Furthermore, having accepted the terms and conditions of his appointment letter Appellant is estopped from requesting for ipso facto application of Government rules and regulations to him."
(1) Whether or not the teachers/employees of PAF Educational Institutions managed by the Managing Committees or bodies are civil servants under Section 2(1)(b) of the Civil Servants Act, 1973 or for the purpose of Section 2-A of the Service Tribunals Act, 1973?
(2) Whether employees/Teachers of PAF Educational Institution can invoke the jurisdiction of the Tribunal as well as of this Court under Article 212(3) of the Constitution of Islamic Republic of Pakistan.
(3) The question of validity and vires of Section 2-A of the Service Tribunals Act, 1973 on the touchstone of Article 212 and other provisions of the Constitution of Islamic Republic of Pakistan.
It may be noted that above questions, particularly the question cited at Sr. No. 3, was likely to affect a large number of cases of the employees who are deemed to be civil servants under Section 2-A of the Service Tribunal Act, 1973 [herein after referred to as "STA, 1973"], therefore, Constitution of larger bench was considered appropriate and office was directed to club all identical petitions and appeals for disposal by means of an authoritative pronouncement on the subject. Learned Attorney General for Pakistan was also asked to assist the Court, as different Constitutional provisions were likely to come under examination.
Learned counsel for the parties argued as follows:--
Mr. Muhammad Akram Sheikh, learned Sr. ASC contended that:--
(a) Ultimate Constitutional objective is to establish an egalitarian society, and if there was a sufficient public law element, then the concept of master and servant will not be applicable.
(b) Section 2-A of the STA, 1973 should be saved, instead of destroying it as it is well settled that the Court must act in favour of upholding the Constitutionality of a legislation.
Reliance in this behalf has been placed on Gunton v. London Borough of Richmond upon Thames [1980] 3 All ER 577, R v. Civil Service Appeal Board [1988] 3 All ER 686, Inamur Rehman v. Federation of Pakistan (1992 SCMR 563) and Farasat Hussain v. Pakistan National Shipping Corporation (2004 SCMR 1874).
(c) If ultimately, this Court comes to the conclusion that Section 2-A is ultra vires of the Constitution, the judgment being pronounced on its Constitutionality shall be declared to have application prospectively.
(d) This Court is always fully empowered to provide guidelines on the issues to the Federation of Pakistan under the circumstances of the case.
Reliance in this behalf has been placed on Workers of M/s. Rohtas Industries Ltd. v. Rohtas Industries Ltd. (AIR 1990 SC 481)
(i) There is no limitation on the powers of Parliament to declare any service to be the service of Pakistan, therefore, in exercise of these powers, a declaration in terms of Section 2-A of the STA, 1973 has been made accordingly, as a result whereof every person holding a post in a statutory body and Federally controlled and managed organization shall be deemed to be in the service of Pakistan and would be treated as civil servant under the CSA, 1973, for the purpose of availing remedy under the law. In this manner, by reason of a legal fiction, the employees covered by Section 2-A of the STA, 1973 shall be deemed to be civil servants.
Reliance in this behalf has been placed by him upon Mehreen Zaibun Nisa v. Land Commissioner Multan (PLD 1975 SC 397 at 433) and Siraj Din v. Sardar Khan (1993 SCMR 745 at 749).
(ii) The
Legislature was fully conscious that Article 260 of the Constitution excludes certain persons from the definition of service of Pakistan' but in spite of it, by enacting Section 2-A of the STA 1973, for class of employees holding a post in a statutory authority and Government managed or controlled bodies and
Corporations, whose cases are covered under Section 2-A, though excluded from the definition ofcivil servant' by providing a deeming clause indeed for this reason, ignorance is not to be imputed to the Legislature because, wisdom is always expected in favour of the Legislature, which has not to be called in question by the Courts while interpreting the law on the subject.
In this behalf he relied upon Aftab Ahmed v. K.E.S.C. (1999 SCMR 197), PIA Corporation v. Koural Channa (1999 PLC (CS) 1539), Divisional Engineer Phones v. Muhammad Shahid (1999 SCMR 1526), Zahir Ullah v. Chairman WAPDA, Lahore (2000 SCMR 826), Anwar Ali Sahto v. Federation of Pakistan (PLD 2002 SC 101), Managing Director, SSGC Ltd. v. Ghulam Abbas (PLD 2003 SC 724).
(iii) In the light of the judgments cited above, Section 2-A of the STA, 1973 is intra vires of the Constitution. However, one aspect appears to have been overlooked e.g. every person, if not holding a post, would be governed by terms of the contract, and the remedy available to such a person would be a suit for damages. Word `permanent post' has been defined in Section 2(1)(e) of the CSA, 1973.
Reliance is placed on State of Assam v. Kanak Chandra (AIR 1967 SC 884 rel. 886 at para 10)
(iv) Section 2-A of the STA, 1973 holds the field from 1997 and its constitutionality has never been challenged, therefore, at this belated stage, it would not be appropriate to strike it down.
(a) Section 2-A is applicable to those employees who do not fall within the category of worker or workman.
(b) Article 212 of the Constitution does not cater to protect the validity of Section 2-A of the STA, 1973 and the remedy is independent of Article 212 of the Constitution because Section 2-A of the STA, 1973 itself provides a remedy.
(c) As regards the worker or workman, since Article 212 of the Constitution is not attracted in the case of Section 2-A and if so, Section 2-A is reduced to ordinary piece of legislation, dealing with routine cases of service and employment.
(d) Industrial Relation Ordinance is a special law, dealing with special class of people. Section 2-A of the STA, 1973 is an ordinary piece of legislation, thus the former is to prevail.
(e) Service Tribunal Act is a procedural law whereas Civil Servants Act is a substantive law. Unless corresponding amendment is made in the substantive law i.e. Civil Servants Act, they do not become civil servants and Article 212 of the Constitution would not be applicable.
(f) Under jurisprudence, there are two types of interpretations; one is literalities and the other is centialigus. The Court must accept first interpretation because the legislature has said that what is means in so many words, and second interpretation can be adopted if there is ambiguity.
Ch. Muhammad Farooq, ASC adopted the arguments of Mr. M.A. Ghani, ASC.
Syed Asif Ali Shah, learned ASC argued that:--
(a) Section 2-A of STA, 1973 is not in derogation of the Constitution, therefore, its constitutionality cannot be objected to.
(i) Section 2-A is intra vires of the Constitution.
(ii) This Court cannot examine the vires of any legislation in collateral proceedings.
(iii) No one, either an employee or an employer, has challenged the validity of Section 2-A of the STA, 1973.
(iv) In collateral proceedings, only under Article 8 of the Constitution, this Court can strike down the vires of legislative instrument. Since provision of Section 2-A of the STA, 1973 is a beneficial provision, therefore, it cannot be struck down.
(v) No decision by this Court can affect the petitions and appeals pending before this Court.
(i) Neither any one has challenged the vires of Section 2-A of the STA, 1973 nor amongst both the parties has any one prayed for examination of its constitutionality.
(ii) This Court cannot widen the scope of Article 212 of the Constitution by framing a question to examine the constitutionality of Section 2-A of the STA, 1973.
(iii) This Court does not act in a vacuum. The Court has to take notice of these conditions in which the Society is functioning. That is why it is said that no Constitution is rigid. While dealing with the case, we have to look into the ever changing circumstances of the society.
(a) The Court has no power of judicial review to declare any law against the Constitution, unless the test laid down in Article 8 of the Constitution is fulfilled.
(a) Section 2-A is intra vires of the Constitution.
(b) If the Court has decided to examine the vires of Section 2-A of the STA, 1973, it would also be required to take into consideration the implications of the Removal from Service (Special Powers) Ordinance, 2000, which covers both the categories of the employees i.e. civil servants and the workers; and this Ordinance has got the Constitutional protection, in view of 17th Amendment of the Constitution.
(c) The definition of service of Pakistan' under Article 260 of the Constitution is very wide and generally it is termed asGovernment service'.
In his behalf he relied upon Ajit Singh v. State of Punjab (AIR 1970 Haryana 351), Salahuddin v. Frontier Sugar Mills and Distillery Ltd. (PLD 1975 SC 244), to define the expression i.e. person performing functions in connection with the affairs of the Federation or Province.
(d) Article 260 of the Constitution deals only with one aspect of the service of Pakistan. Article 212 of the Constitution is an independent Article and it deals in respect of matters relating to the terms and conditions of service of the persons, who are or have been in the service of Pakistan, whereas Article 240 of the Constitution deals in respect of the service of the Federation, posts in connection with the affairs of the Federation and All Pakistan Service by or under the Act of [Majlis-e-Shoora (Parliament)]. Therefore, the Tribunal can exercise exclusive jurisdiction in respect of the employees whose cases are covered by Section 2-A of the STA 1973, notwithstanding that under Article 240 of the Constitution, their terms and conditions have been prescribed or not.
(e) The Court while interpreting the Constitutional provisions has to keep in mind the social set up of the country.
Reliance in this behalf has been placed by him on M/s. Ellahi Cotton Mills v. Federation of Pakistan (PLD 1997 SC 582) and Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193).
He also relied upon American Jurisprudence 2nd Edition Vol. 16 para 86 and the copy of speech of the then Law Minister Khalid Anwar, when Section 2-A was being promulgated.
(f) If the Court comes to the conclusion that Article 2-A of the STA, 1973 is ultra vires of the Constitution following the judgment in the case of L. Chandra Kumar v. Union of India (AIR 1997 SC 1125), it may be held that the earlier judgments passed by the Service Tribunal are valid and within jurisdiction but these can be challenged before the High Court under Article 199 of the Constitution and this Court may transfer pending, petitions for leave to appeal to the respective High Courts for treating them as Constitution Petitions under Article 199 of the Constitution for disposal.
(i) The Legislature through, Section 2-A of the STA, 1973, has validly declared the status of persons holding a post in statutory Corporations and autonomous bodies as "service of Pakistan" with the intention to protect them from arbitrary exercise of administrative discretion and in conformity with prevalent universal practice of enforcement of rule of law and protection of rights of employees.
(ii) Section 2-A of the STA, 1973 was inserted through an Act of Parliament, therefore, it is a valid enactment.
(iii) Jurisdiction of the Tribunal under Section 2-A of the STA, 1973 is to be judged in conjunction with Section 5 of the STA, 1973.
(iv) Jurisdiction conferred on Tribunal under Section 2-A of the STA, 1973 to adjudicate upon the grievance and claims of the persons, classified therein, does not offend the spirit of the Constitution because it is a Constitutional jurisdiction, by means of which word `deemed, has been inserted in law, therefore, Section 2-A of the STA, 1973 has to be protected.
(v) A forum of Appeal with the leave of this Court is provided under Article 212(3) of the Constitution, to this Court.
(vi) No law can be declared as void under the scheme of the Constitution, unless it falls within the parameters of Article 8 of the Constitution.
(vii) Article 37(d) of the Constitution provides for promotion of social justice and to ensure inexpensive and expeditious justice to every citizen.
Reliance in this behalf has been placed on The State v. Zia-ur-Rehman (PLD 1973 SC 49) and Hakam Qureshi v. Judges of the Lahore High Court (PLD 1976 SC 713).
(viii) The Federation has not come forward to do something for the poor employees of the Corporations, etc. therefore, instead of striking down Section 2-A of the STA, 1973 as a whole, instructive guidelines and directions, as deemed fit, may be issued to the Federation in view of the judgment of this Court in the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607).
(ix) There are a number of laws under which one segment of the society is excluded from the jurisdiction of Special Courts under a particular provision of law. Reference in this behalf can be made to NAB Ordinance, 1999.
(i) The Federal Government itself is not interested to repeal Section 2-A of the STA 1973, as would be evident from the statement filed on its behalf by the learned Deputy Attorney General.
(ii) Section 2-A of the STA, 1973 is intra vires of the Constitution and it does not violate any of its provisions.
(iii) The principle of master and servant is violative of the injunctions of Islam, Quran, Sunnah and the Objectives Resolution. This principle is also violative of Article 14 of the Constitution being against the dignity of person, security of life and property of the individual employees, guaranteed under Article 9 of the Constitution. This principle is also discriminatory and runs against the provisions of Article 25 of the Constitution, therefore, Article 2-A of STA, 1973 is to be saved in the interest of justice.
(iv) Section 2-A of STA, 1973 has only provided a forum to the employees of Corporation, etc. and their cases have to be decided according to rules and regulations, governing their service, therefore, for this reason, there is no point to discuss as to whether Section 2-A of STA, 1973 is ultra vires of the Constitution or not.
(a) The class of service under Section 2-A of the STA, 1973 is distinct from civil servants as defined in Section 2(1)(b) of the CSA, 1973, therefore, neither they are in the service of Pakistan, nor they are civil servants. This distinction has been highlighted firstly in the case of Noor Mustafa Khuhro v. The Federation of Pakistan (1998 PLC (CS) 1263) and approved in Zahir Ullah (ibid) and Muhammad Nasim Turyali v. Ghulam Sarwar Khan (PLD 2005 SC 570).
(b) Under Article 63 of the Constitution, the Government service and the service of a statutory body has been treated at par and not distinctly, therefore, in view of the judgment in the case of Shahid Nabi Malik v. Chief Election Commissioner (PLD 1997 SC 32), it may be treated as a new specie.
(c) In the case of Zahir Ullah (ibid) it has been held that the employees covered under Section 2-A of the STA, 1973 have attained the status of Government servant by fiction of law, as it also includes the persons appointed on contract basis, etc., therefore, they can avail remedy before the Service Tribunal.
(d) As per the will of the Legislature, the employees of a Corporation have been declared to be holders of post in the service of Pakistan, therefore, whether it is right or wrong decision of the Legislature, the same has to be respected and it cannot be struck down for reasons of jurisdiction, impropriety or expediency.
In this behalf he relied upon Reference by the President [No. 1 of 1957] (PLD 1957 SC (Pak) 219), Kihota Hollohon v. Zachilhu (AIR 1993 SC 412), Pir Sabir Shah v. Shah Muhammad Khan (PLD 1995 SC 66) and Zulfiqar Ali Babu v. Government of the Punjab (PLD 1997 SC 11).
(a) Section 2-A of the STA, 1973 is wholly ultra vires and unenforceable.
(b) As per Article 260 of the Constitution, unless a person is in the service and holding a post, his case does not fall within the definition of "service of Pakistan".
(c) It is a misconception that the Parliament, by means of a deeming clause, can declare that the persons holding a post under any authority or Corporation, body or organization, established by or under the Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has controlling share or interest, to be in service of Pakistan and holder of post under such authority or Corporation, body or organization shall be deemed to be a civil servant for the purpose of this Court, because no such power is available to it under Article 142 of the Constitution.
(d) A declaration could be given for the purpose of STA, 1973 and CSA, 1973 and even for the purpose of the Constitution but not for legislative purposes.
(e) According to Article 240, read with Article 260 of the Constitution, if a person who is in service of Pakistan or has been declared to be in service of Pakistan, his appointment and the terms and conditions of service shall be determined by the Act of Parliament.
(f) Section 2-A of the STA, 1973 has not provided any appeal to the Supreme Court, as appeal with the leave, lies before it if the conditions laid down in Article 212(3) of the Constitution are fulfilled, therefore, if it is concluded that remedy to the persons covered by Section 2-A of the STA, 1973 is before an ordinary statutory Tribunal, their remedy would lie before the High Court under Article 199 of the Constitution, being the only Article in the Constitution to safeguard the fundamental rights, there-under.
(g) Declaration of status of persons under Section 2-A of the STA, 1973 is for the purpose of Article 260 of the Constitution or for the purpose of STA, 1973 or CSA, 1973, therefore, all those persons, who are not holding the post, cannot be declared to be in service of Pakistan for the purpose of treating them to be civil servant under STA, 1973.
(h) Section 5 of the CSA, 1973 deals with the appointment in all Pakistan service or to civil service of the Federation or to a civil post in connection with the affairs of the Federation in the prescribed manner, whereas Sections 6 and 7 of the CSA, 1973 deal with the probation and confirmation of a civil servant, therefore a person who is appointed on contract basis, etc. cannot be deemed to be in regular appointment and cannot be said to hold a post, as such he has no legal entitlement to avail of remedy before the Service Tribunal.
(i) In Ghulam Abbas case (ibid) [2003 SCMR 734], this Court has held that law of master and servant does not apply and in such situation the High Court may be approached by an employee; and if no relief is granted by the High Court, then he may invoke the jurisdiction of this Court under Article 185(3) of the Constitution.
(j) The workers/workmen, in presence of the Industrial Relations Ordinance, 2002 [herein after referred to as "IRO, 2002"] cannot avail remedy before the Service Tribunal under Section 2-A of the STA, 1973 because the Labour laws being special law shall prevail, which is meant specially for such category of people, instead of invoking jurisdiction of the Service Tribunal, which is a general law for all intents and purposes.
(i) The Court cannot be estopped to examine the constitutionality of Section 2-A of the STA, 1973, at a belated stage because in the earlier judgments cited at the bar, its vires on the touchstone of the Constitution were not examined, therefore, if this Court comes to the conclusion that it is unconstitutional, the same can be declared at as such, notwithstanding the fact that the law has worked for a long time.
Reliance in this behalf has been placed on Mr. Fazlul Quader Chowdhry v. Mr. Muhammad Abdul Haque (PLD 1963 SC 486) and Thomas Cole Contech v. Queen (PLD 1957 PC 112).
(ii) It is not necessary for the Court to wait for an occasion that some one must challenge the constitutionality of a law. The Court can examine the validity/constitutionality of the statutory provision, itself when it comes to its notice or it has been brought into notice by the parties and mere passage of time is not a criteria for the validation of the constitutionality of law.
In this behalf reliance has been placed by him on Immigration and Naturalization Service v. Jagdish Rai Chandha (462 US 919 [77 L Ed. 2d 317], Abdullah Khan v. Nisar Muhammad Khan (PLD 1965 SC 690) and Board of Intermediate and Secondary Education v. Salma Afroze (PLD 1992 SC 263).
(iii) If this Court comes to the conclusion that Section 2-A of the STA, 1973 is violative of any of the provisions of the Constitution, other than the chapter relating to fundamental rights, then the law is to be struck down and the declaration would be considered retrospective. It will not protect the pending proceedings.
In this behalf he relied upon Ghulam Qadir v. The State (PLD 1959 SC 387), Constitution of Canada by Hog at page 1241, Fundamental Law of Pakistan by A.K. Brohi (page 591).
(iv) If the Court strikes down Section 2-A of the STA, 1973, being contrary to the Constitution, the workers of autonomous bodies, etc. shall avail forum of the Labour Courts and ultimately come to this Court under Article 185(3) of the Constitution. Under this provision, the threshold requirement is much lower than that of Article 212 of the Constitution.
(v) The employees who are in the Corporation service and whose terms and conditions of service are statutory, would be entitled to remedy in the form of a Constitution Petition and the third category, where rules of service are not statutory in nature, they can file a suit for recovery of damages. Besides, it is a cardinal principle of legal jurisprudence that mere change of a forum itself does not give rise to any vested right.
Reference in this behalf can be made to Inamur Rehman (ibid).
(vi) Examining Section 2-A of the STA, 1973 on the touchstone of Articles 212, 240 and 260 of the Constitution, one can conclude that the law under examination has only provided a forum and not the procedure of appointment, etc. therefore, it being contrary to the Constitution deserves to be struck down.
(vii) Article 260 of the Constitution, while defining the expression service of Pakistan', does not provide thatany person employed', rather it deals with the persons who are in service of Pakistan, in connection with the affairs of the
Federation. The words "affairs of the Federation" have to be interpreted in the sense that there must be some role in the performance of the sovereign functions of the State and in absence of that a person cannot be said to be employee in the affairs of the Federation.
Reference in this behalf can be made to Salahuddin v. Frontier Sugar Mills and Distillery Ltd. (PLD 1975 SC 244) and Aitchison College v. Muhammad Zubair (PLD 2002 SC 326).
(viii) Definition of civil servant' under Section 2(1)(b) of the CSA, 1973 had made number of exclusions, enumerated therein in clauses (i), (ii) and (iii), and this has been done deliberately because the persons of such categories do not fulfill the requirement ofin the service of Pakistan in connection with the affairs of the Federation', under Article 260.
In this behalf he relied upon Employees' Old Age Benefit Institution v. N.I.R.C. (1988 SCMR 765) and Province of Punjab v. Punjab Labour Appellate Tribunal (2002 SCMR 836).
(ix) The words employed in Article 260 of the Constitution i.e. "and any other service declared to be service of Pakistan by or under the Act of [Majlis-e-Shoora (Parliament)] are required to be interpreted in the perspective of Article 260 of the Constitution.
While quoting an example whether the Legislature can declare the service of a person in domestic employment to be the service of Pakistan or holding a post or office in connection with the affairs of Federation, he argued that such expression must be read in the context of the Article 260 of the Constitution.
In order to reinforce his above contention, he relied upon Don Basco High School v. The Assistant Director E.O.B.I. (PLD 1989 SC 128), Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), Farooq Ahmed Khan Leghari v. Federation of Pakistan (PLD 1999 SC 57) and Reference No. 2 of 2005 by the President of Pakistan (Hisba) (PLD 2005 SC 873).
(x) This
Court in so many cases has made distinction between service of Pakistan' andservice of a Corporation' with reference to the provisions of Article 63 of the Constitution. [disqualification of membership of Majlis-e-Shoora
(Parliament)].
In support of above contention he relied upon Adil Abdul Jabbar v. Chairman Sindh Labour Appellate Tribunal [2005 PLC (CS) 956].
(xi) A person, in absence of a statute or statutory rules, governing the terms and conditions of his service, is not permitted by the Constitution to approach this Court under Article 212.
He relied upon Muhammad Shahbaz Sharif v. Muhammad Altaf Hussain (PLD 1995 Lahore 541), Registrar, Supreme Court of Pakistan v. Wali Muhammad (1997 SCMR 141) and Muhammad Siddique v. Lahore High Court (PLD 2003 SC 885).
(xii) Under a deeming clause, a person covered by Section 2-A of STA, 1973 cannot be declared as civil servant, unless the nexus can be brought within the scope of a civil service and at least it should have some relevancy with the context.
Reference in this behalf can be made to Commissioner of Sales Tax v. Hunza Central Asian Textile and Woollen Mills Ltd. (1999 SCMR 526), Sheikhoo Sugar Mills Ltd. v. Government of Pakistan (2001 SCMR 1376).
(a) Section 2-A does not cover the employees whose terms and conditions are not governed by the statutory provisions of law qua the employees who fall within the definition of civil servant under the CSA, 1973 and those employees whose terms and conditions re regulated by statute, have the remedy before the Service Tribunal and by invoking the jurisdiction of the High Court under Article 199 of the Constitution, therefore, they ought to seek remedy under the Labour Laws.
(b) Section 2-A of the STA, 1973 has conferred jurisdiction upon the Service Tribunal, in respect of matters of the employees covered by it, being a procedural law but such jurisdiction cannot be exercised unless the terms and conditions have been regulated by a statute or statutory rules.
(c) For the purpose of considering a person, covered by Section 2-A of the STA, 1973, falling within the definition of civil servant, it is necessary that conditions laid down under Articles 240 and 260 of the Constitution must exists; firstly it should be a service of Pakistan actually and not by a deeming fiction; secondly, the terms and conditions of such employee must be laid down under the Act of Parliament.
(d) The intention of Legislature in enacting Section 2-A of the STA, 1973 was not to place the employees covered by it at a pedestal higher than that of a civil servant, including those who are employed on contractual basis and allowing remedy to the workers/labourers before the Service Tribunal merely by incorporating a deeming clause therein. In order to reinforce his arguments, he relied upon Mehreen Zaibun Nisa (ibid).
(i) That the amendment introduced by Section 2-A of the STA, 1973 only relates to the change of forum but they do not alter the terms and conditions of the service of the employees, therefore, the employees whose terms and conditions are not defined by a statutory provision cannot avail of remedy before the Service Tribunal and they must avail of remedy before a forum other than the Service Tribunal.
(a) Without complying with the provisions of Article 240 of the Constitution, a person cannot be declared to be in the service of Pakistan, therefore, by granting a fictional status under Section 2-A of the STA, 1973, status of a civil servant cannot be granted to State managed Corporations employees, therefore, Section 2-A of the STA, 1973 be declared ultra vires of the Constitution.
(b) Section 2-A of the STA, 1973 also does not qualify the test laid down under Article 260 of the Constitution with reference to the definition of "service of Pakistan", therefore, for this reason as well, it being a law contrary to the Constitution may not be allowed to hold the field any longer.
(c) Assuming that by means of a declaration, persons covered by Section 2-A are deemed to be in service of Pakistan, for limited purpose, amendment in the definition of civil servant under Section 2(1)(b) of the CSA, 1973 was necessary.
(d) As the terms and conditions of the persons, covered under Section 2-A remained same in view of the law laid down by this Court in this case of Qazi Wali Muhammad (ibid), applicable prior to amendment, they cannot invoke the jurisdiction of Service Tribunal for the redressal of their grievance in view of a deeming clause incorporated therein.
(e) This Court, time and again, has held that where rules of service of Corporation are not statutory, only remedy available to such employees of the Corporation is to claim damages and not reinstatement.
In this behalf he relied upon number of judgments starting from Lahore Central Co-operative Bank Ltd. v. Saif Ullah Shah (PLD 1959 SC 210) and United Bank Ltd. v. Shahmim Ahmed Khan (PLD 1999 SC 990).
(i) Section 2-A of the STA, 1973 is not in consonance with the provisions of Articles 240 and 260 of the Constitution, therefore, for the purpose of filing an appeal before a forum, a person cannot be treated as civil servant under this Section.
(ii) The provisions of Section 2-A of the STA, 1973 are against the principles of State Policy under Article 37 of the Constitution, which caste duty upon the State to provide inexpensive and speedy justice, therefore, clustering of litigation before one Tribunal, which is mostly working in Islamabad has created a lot of problems for the employees who do not fall within the definition of civil servant, therefore, it requires to be declared as ultra vires of the Constitution.
(a) Employees of the Private Companies cannot be considered to be civil servants, therefore, declaration in this behalf is required to be made, otherwise Federal Service Tribunal has taken up the cases of such employees as well, contrary to law.
(i) Article 260 of the Constitution talks about three kinds of service; (1) service in connection with the affairs of Federation; (2) service in connection with the affairs of Province; and (3) service declared by the law to be service of Pakistan; but it does not deal with the post or the office for declaring the same to be service of Pakistan, whereas Article 240 of the Constitution deals in respect of categories of the service noted herein above at Nos. (1) and (2), therefore, the Legislature cannot declare a person to be civil servant by introducing a deeming clause. Thus, it being contrary to the Constitution deserves to be struck down.
(ii) First part of Section 2-A of the STA, 1973 declares service to be service of Pakistan and according to its second part, a person holding a post shall be deemed to be civil servant, whereas Article 260 of the Constitution speaks of declaring a service to be a service of Pakistan. Article 260 of the Constitution authorizes Majlis-e-Shoora (Parliament) to declare a service to be service of Pakistan but it does not enjoy any power to declare a post or office in connection with the affairs of Pakistan. Conversely, Article 240(a) of the Constitution lays down that conditions of service of a person in the service of Pakistan shall be determined in the case of service of the Federation, posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of [Majlis-e-Shoora (Parliament)]. It does not speak in respect of office, therefore, second part of Section 2-A is ultra vires of the Constitution.
(a) Section 2-A of the STA, 1973 is intra vires of the Constitution so far it deals with the persons, whose terms and conditions have been laid down by statutory provisions and it is ultra vires in respect of persons who do not enjoy such status.
(b) The Service Tribunal is performing functions of judicial forum and against judgments/orders of the Tribunal, appeal by leave of the Court is competent before this Court, therefore, appointment of its Chairman and the Members should be made with the consent of the Supreme Court of Pakistan to ensure the independence of Tribunal.
(c) STA, 1973 does not lay down the terms and conditions of the Members of the Service Tribunal, therefore, directives be issued to the Federal Government to prescribe their terms and conditions including qualifications for their appointment to the Service Tribunal.
(d) The persons, working in Corporation, as per the provisions of Section 2-A of the STA, 1973, cannot be considered to be civil servants as it would defeat their fundamental right to form association and trade union under Article 17 of the Constitution and consequential benefits arising therefrom in terms of IRO, 2002.
(e) Article 212 of the Constitution provides that the jurisdiction with regard to the matters relating to the terms and conditions of the persons, who are or have been in the service of Pakistan, including disciplinary matters shall exclusively vest in the Tribunal, whereas in the case of worker and the workman, whose terms and conditions are governed under IRO, 2002 cannot be deemed to be a person holding a post under the Authority or Organization as mentioned in Section 2-A. Thus such declaration being void deserves to be declared ultra vires of the Constitution.
(f) So far as the workman or worker are concerned, Labour Laws i.e. IRO, 2002 being a special law, prevails over the general law, as held in I.G. of Police Punjab v. Mushtaq Ahmad Warraich (PLD 1985 SC 159) and Neimat Ali Goraya v. Jaffar Abbas, Inspector/Sargeant Traffic (1996 SCMR 826).
(i) Section 2-A of the STA, 1973 can be saved by interpreting it in the manner that so far it deals with the persons whose services are regulated by the statutory provisions; they can be deemed to be civil servants, therefore, to their extent it is valid law. Whereas in respect of others, whose terms and conditions of service are not governed by a statutory provision, it is contrary to the Constitution and deserves to be struck down partially.
M/s. Hafiz S.A. Rehman ASC, Barrister Ch. Muhammad Jamil ASC, Ch. Zafar Farooq, ASC, Dr. Sohail Akhtar ASC, Raja Abdul Ghafoor ASC, Qamar-uz-Zaman ASC, Abdul Karim Kundi ASC, M. Bilal Sr. ASC, Ch. Mushtaq Masood ASC, Noor Muhammad Chandia ASC, Mian Abdul Rauf ASC and Raja Sher Muhammad Khan ASC adopted the arguments, advanced by learned Attorney General for Pakistan.
Mrs. Naheeda Mehboob Ellahi, learned Deputy Attorney General for Pakistan appeared on behalf of Federation of Pakistan and filed the following statement:
"As desired by this Hon'ble Court, the undersigned contacted the Ministry of Law, Justice & Human Rights to seek specific instructions regarding the stand of the Federal Government. I have been instructed to state as follows:--
(i) That the vires of the legislation is a matter of this Hon'ble Court.
(ii) The Federal Government, is however, examining reviewing this legislation in view of the implications that it has given rise to.
Sd/- Nahida Mehboob Ellahi, Deputy Attorney General for Pakistan."
"Whereas it is expedient to regulate by law, the appointment of persons to, and the terms and conditions of service of persons in the service of Pakistan, and to provide for matters, connected therewith or ancillary thereto;"
Section 2(1)(b) of the CSA, 1973 defines `civil servant' as under:--
"Civil servant means a person who is a member of an All Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include:--
(i) a person who is on deputation to the Federation from any province or other authority;
(ii) a person who is employed on contract, or on work-charged basis or who is paid from contingencies; or
(iii) a person who is a "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934), or the Workman's Compensation Act, 1923 (VII of 1923).
In the above definition of the civil servant, the expression "All Pakistan Service or of a civil service of Federation" has been included, therefore, Section 5 of CSA, 1973 defines the competent authority for appointment. According to which "Appointments to an All-Pakistan Service or to a civil service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with defence, shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf." To meet the requirements of this provision of law, Federal Public Service Commission Ordinance, 1977 was promulgated in pursuance whereof the Commission was authorized to conduct tests and examinations for recruitment of persons other than officers of the Armed Forces of Pakistan, etc.
"Whereas it is expedient to provide for the establishment of Administrative Tribunals, to be called Service Tribunals, to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of civil servants, and for matters connected therewith or ancillary thereto."
Section 2(a) defines the "civil servant" as follows:
"civil servant means a person who is, or has been, a civil servant within the meaning of the Civil Servants Act, 1973 (LXXI of 1973); and shall include a person declared to be a civil servant under Section 2(a);"
"240. Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined--
(a) In the case of the services of the federation, posts in connection with the affairs of the Federation and All Pakistan Services, by or under Act of [Majlis-e-Shoora (Parliament)]; and
(b) In the case of services of a Province and posts in connection with the affairs of a province, by or under Act of the Provincial Assembly.
Explanation.--In this Article, "All Pakistan Service" means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of [Majlis-e-Shoora (Parliament)].
"212. (1) Notwithstanding anything herein before contained the appropriate Legislature may by Act [provide for the establishment of] one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) Matters relating to the terms and conditions of persons [who are or have been] in the service of Pakistan, including disciplinary matters;
(b)
(c)
(2)
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal.
Perusal of the above definition of civil servant' reproduced earlier indicates that at least three types of persons were excluded from the definition ofcivil servant'; firstly, those who are on deputation to the
Federation from any Province or other authority; secondly, who are employed on contract, or on work-charged basis or who are paid from contingencies; and thirdly who are workers' orworkmen' as defined in the Factories Act, 1934
(XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923).
This Court, right from 1973, when the CSA, 1973, was promulgated, had examined the definition of `civil servant' in a number of cases, with reference to Section 5 of the CSA, 1973. Reference, however, may be made to the case of Mrs. M.N. Arshad v. Miss Naeem Khan (PLD 1990 SC 612). Relevant para therefrom is reproduced herein below for convenience:
"7. A perusal of the above-quoted definition of the term `civil servant' indicates that it includes a person, who is (i) a member of All Pakistan services or (ii) is a civil servant of the Federation or (iii) holds a civil post in connection with the affairs of the Federation including any such post connected with defence but does not include the persons mentioned in sub-clauses (i) and (ii) to the above clause (b), whereas the above quoted Section 5 provides that the appointment to the above three categories of the persons shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf. It may also be pointed out that the above-quoted Section 7 of the Ordinance provides that the test and examinations for recruitment of the above three categories of persons referred to in the above clause (b) and Section 5 of the Act are to be conducted as may be prescribed by rules made under Section 10 of the Ordinance. We may observe that the learned ASC has not been able to point out any rules, requiring the junior teachers to appear in the Federal Public Service Commission examination. In any case this is not the point in issue. The controversy is, as to whether Respondent No. 1 falls in any of the above three categories of persons, who have been defined as civil servants. Admittedly the Federation has established inter alia the college in Islamabad, which is the capital of the Federation. This has been done in the discharge of this Constitutional and/or statutory obligation as a State. In the capital of the Federation, the Federal Government discharges dual functions namely, of the Federal Government and of the Provincial Government. In the above background, it cannot be denied that Respondent No. 1 holds a civil post in connection with the affairs of the Federation. The Tribunal has dilated upon the above question exhaustively and has pointed out the factum that the schools and colleges were constructed by the Federation and even annual budget is provided by the Federation."
The above view has been reaffirmed in Saeed Rabbani v. Director-General Leather Industry Development Organization (PLD 1994 SC 123), Chairman, Pakistan Broadcasting Corporation v. Nasir Ahmad (1995 SCMR 1593), Dr. Rashid Anwar v. Federation of Pakistan (1996 SCMR 1572) and Managing Committee, P.A.F. v. Muhammad Pervaiz Akhtar (1997 SCMR 1957). It may be noted that in last mentioned case, the teachers of PAF Model Inter-College were declared to be `civil servants' and with the majority opinion, the appeal filed by the Managing Committee, PAF Model Inter-College was dismissed. [Implications/reflections of the ratio decidendi of this case shall be examined in depth at a later stage while disposing of Civil Appeals, which pertains to School Teachers of PAF].
civil servant' in Section 2(1)(b) of the CSA, 1973, it emerges that in order to attain the status of acivil servant' it is necessary that the person should be member of All Pakistan
Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation. There may be some employees who fall within the definition of `civil servant' for the purpose of STA, 1973 but do not enjoy the status of All Pakistan Service or of a civil service of the
Federation. Both these expressions are not synonymous, as declared by this
Court in the case of Registrar, Supreme Court of Pakistan v. Wali Muhammad
(1997 SCMR 141). Relevant para therefrom is reproduced herein below:"We would like to mention here that from the trend of arguments at the bar it appeared that two expressions
service of Pakistan' andCivil Servants' were treated as synonymous. This in our opinion is not so. Service of Pakistan is defined in Article 260 of the
Constitution as meaning, any service, post or office in connection with the affairs of Federation or a Province. This expression also includes an All
Pakistan Service and service in the Armed Forces or any other service declared under an Act of the Parliament or a
Provincial Assembly a Service of Pakistan. The terms Civil Servant' is defined in the Civil Servants Act, 1973 as a person, who is a member of an All Pakistan
Service or of a civil service of the Federation or a person holding a civil post in connection with the affairs of Federation, including a civil post connected with the defence. However, a person on deputation to the Federation from any Province or other authority, a person who is employed on a contract or on work-charge basis who is paid from contingencies and a person who isworker' or workman' as defined in the Factories Act, 1934 or the Workmen's
Compensation Act, 1923, are expressly excluded from the category ofCivil
Servant'. On a careful examination of the definitions of Service of Pakistan' as given in Article 260 of the Constitution and theCivil Servant' as mentioned in Civil Servants Act, 1973, it would appear that the two expressions are not synonymous. The expression service of Pakistan' used in Article 260 of the Constitution has a much wider connotation than the termCivil Servant' employed in the Civil Servants Act. While a Civil Servant' is included in the expressionService of Pakistan', the vice versa is not true. Civil Servant' as defined in the Civil Servants Act, 1973 is just a category of service of
Pakistan mentioned in Article 260 of the Constitution. To illustrate the point, we may mention here that members of Armed Forces though fall in the category ofService of Pakistan' but they are not civil servants within the meaning of
Civil Servants Act and the Service Tribunals Act. The scope of expression
service of Pakistan' andCivil Servants' came up for consideration before this Court in the case of Syed Abida Hussain v. Tribunal for N.A. 69 (PLD 1994
SC 60). In that case the petitioner was disqualified from contesting the general elections of 1993 on the ground that she was a person who held the office of profit in the Service of Pakistan. It was contended by the petitioner in that case that she was appointed as an Ambassador on contract for two years and as a person employed on contract was specifically excluded from the definition of civil servant the petitioner could not be disqualified. The contention was repelled by this Court in the above case as follow:
"6. It is difficult to subscribe to the contention of the learned counsel. The expression `service of Pakistan' has been defined in Article 260(1) of the Constitution. It reads as follows:--
means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis-e-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Minister of State, Chief Minister, Provincial Minister, Attorney-General, Advocate General, Parliamentary Secretary or Chairman or Member of a Law Commission, Chairman or Member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Advisor to the Prime Minister, Special Assistant to the Chief Minister, Adviser to a Chief Minister or Member of a House or a Provincial Assembly;"
Learned counsel for the petitioner rightly concedes that the post of an Ambassador is a post in connection with the affairs of the Federation. It will be seen that the definition does not take notice of the manner in which a post in connection with the affairs of the Federation or a Province may be filled. Thus so far as the inclusion of the post in the service of Pakistan is concerned, it is immaterial whether the holder thereof has come to occupy it through a special contract or in accordance with the recruitment rules framed under the Civil Servants Act: consequently, the mere fact that a person is not a civil servant within the meaning of the Civil Servants Act would not put him beyond the pale of the said Constitutional definition. The contention that the case of the petitioner was covered by sub-clause (n) ibid, is entirely misconceived as ex-facie it does not apply to situations where the relationship of master and servant exists between the parties. Here the petitioner was a whole-time employee of the Government and except for matters, which were specifically provided in the letter of appointment she was governed by the ordinary rules of service applicable to the civil servants. It may perhaps be of interest to mention here that these rules were framed in pursuance of the provision of Article 240 ibid. Thus the assertion on her behalf that while serving as an Ambassador she could not be treated as one in the service of Pakistan merely because her appointment to the post owed its origin to a special contract cannot be accepted. Admittedly, a period of two years has not passed since she relinquished charge of the said post. Therefore, she has been rightly held to be suffering from the disqualification laid down in clause (k) ibid. We find no merit in this petition. It is hereby dismissed.
For the above discussion, it is quite clear that a person may be in the service of Pakistan but for that reason he cannot be classed as a `Civil Servant' as well, as defined in the Civil Servants Act. The Service Tribunal established in pursuance of Article 212 of the Constitution has been conferred exclusive jurisdiction only in respect of the dispute relating to terms and conditions of the service of a "Civil Servant" as defined under the Civil Servants Act, 1973 and as such the jurisdiction of the Tribunal could not be extended to any other category."
It is important to note that in the above judgments, for all intents and purposes, a person on deputation to the Federation from any Province or other authority, or a person who is employed on contract or work charge basis and is paid from contingencies and a person who is a worker' orworkman' as defined in Factories Act, 1934 or the Workmen's Compensation Act, 1923 has been expressly excluded from the definition of civil servant as defined in CSA, 1973. It is also important to note that in the judgments noted herein above, none of the employees was on contract or deputation or workman and as their terms and conditions were laid down under Article 260(1) of the Constitution, therefore, they were declared to be civil servant' Reference at this stage to
Syeda Abida Hussain v. Tribunal for N.A. 69, Jhang (PLD 1994 SC 60), would not be out of context. In the case of Qazi Wali Muhammad (ibid), relevant para of which has been reproduced herein above, this case has also been referred. In this case an Ambassador, on having qualified both the conditions of service of
Pakistan and performing duties in connection with the affairs of the
Federation, was found to be acivil servant'. In fact, both these judgments i.e. Qazi Wali Muhammad (ibid) and Syeda Abida Hussain (ibid) clearly lay down the criteria for the purpose of treating a person to be a member of All
Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, etc.
Thus, in view of ratio decidendi of the above judgments, it can be held that a worker or a workman as defined in Factories Act, 1934 or the Workmen's
Compensation Act, 1923, notwithstanding the fact that the controlling share in the industry vests in the Federal Government, shall not be treated as civil servant. Similarly, persons on contract, even though discharging their functions in connection with the affairs of the Federation and likewise, as well as the deputationists from the Provinces to the Federal Government have not been granted protection of CSA, 1973, therefore, they were excluded from the definition of civil servant' and as per terms and conditions of the person of later category, laid down in CSA, 1973 they shall not be entitled to approach the Service Tribunal, established under Article 212 of the
Constitution. It may be noted that this Court in the case of Qazi Wali Muhammad
(ibid), has crystalized the proposition, leaving no ambiguity in respect ofcivil servant' or other persons, as per Section 2(1)(b)(i), (ii) and (iii) of the CSA, 1973 to avail remedy before the Service Tribunal in respect of their terms and conditions, being in the service of Pakistan, including disciplinary matters, as per the mandate of Article 212(1) of the Constitution.
It is important to note that enactment of Section 2-A of the STA, 1973 is not new to statutory regime. In this behalf, presently there are two identical provisions of law, one by Federal Legislature and one by Provincial Legislature of Sindh on the subject, implication of which will be discussed herein below. In pursuance of West Pakistan Water and Power Development Authority (Amendment) Act, 1975, (Ordinance No. LXXXIV of 1975), the West Pakistan Water and Power Development Authority (Amendment) Ordinance XVI of 1975 was amended and Section 17(1-B) of the Pakistan Water and Power Development Authority Act, 1958, was added. For the sake of convenience same is reproduced herein below:
"[(1-B) Service under the Authority is hereby declared to be service of Pakistan and every person holding a post under the Authority, not being a person who is on deputation to the Authority from any Province, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (LXX of 1973)]."
civil servants' for the purpose of STA, 1973.
Significance of the amendment is that holder of a post under the Authority was declared to be in the Service of Pakistan. This Court, in the case of WAPDA v.
Muhammad Arshad Qureshi (1986 SCMR 18) examined the provisions of Section 17(1-A), (1-B) and (1-C) of the WAPDA Act, 1958 alongwith Sections 4 & 6 of the STA, 1973 (Act LXX of 1973) and held that jurisdiction of the Service
Tribunal itself shall not be affected. Again this view was reaffirmed in the case of WAPDA v. Agha Nazim Ali (1986 SCMR 574). Similar view was reiterated in the case of WAPDA v. Javaid Ahmad (1989 SCMR 1068). Subsequent thereto, in the case of Project Director Ghotki, (WAPDA) v. Commissioner, Workmen's
Compensation Authority for the Payment of Wages Act (PLD 1992 SC 451), leave to appeal was granted to examine the question of law "whether the respondents were employees of WAPDA and as such in the service of Pakistan and their grievance, if any, could be redressed by the Service Tribunal and not by the
Commissioner Workmen's Compensation and Authority under Payment of Wages
Act." In this case, facts were that respondents were appointed as work charge employees in the projects known asSalinity, Control and Reclamation
Project (SCARP). On completion and successful running of the Project, these were handed over to the Government of Sindh alongwith the staff, which opted for such transfer. The Government of Sindh took them to be fresh appointees, regular in nature, and the WAPDA took the transfer as termination of their appointment with it. In this background, affected employees approached the
Commissioner Workmen's Compensation and Authority under the Payment of Wages
Act, claiming gratuity, pay etc. in lieu of earned leave and notice pay. The question of jurisdiction was seriously raised but was repelled and the
Authority granted them relief. This order was challenged before the High Court by invoking its Constitutional jurisdiction but without any success as the High
Court declined to grant relief. Consequently, the matter came up for consideration before this Court and the proposition was answered as follows:"9.
In the position of work charge establishment under the Authority the respondents would undoubtedly be treated as in the service of Pakistan but not everyone in the service of Pakistan is a civil servant for the purposes of the
Service Tribunals Act. In the Service Tribunals Act itself and in the Civil
Servants Act civil servant' has been so defined as to exclude workmen. That apart, for the purposes of the Service Tribunals Act only such of the employees of the WAPDA could be treated as civil servants who were holding a post under the Authority. Work charge establishment as such holds no post hence they cannot for the purposes of Service Tribunals Act be treated as civil servants.
In the absence of their being civil servants, the remedy lay before the forum other than the Service Tribunal. If they fell in the definition ofworkmen' the authorities providing them the redress were the appropriate authorities and there was no exclusion of their jurisdiction in the case."
"9. This provision of law is in two parts. By the first, service under the Authority has been declared to be a service of Pakistan. The second part, which is distinct from the first is that every person holding a post under the Authority of the type described shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973. The result of this bifurcation is that the employee shall be deemed to be in service of Pakistan but not necessarily a civil servant as defined in the Civil Servants Act. If the respondent stands excluded from the definition of the civil servant as contained in the Civil Servants Act, then the statutory provision made for the civil servants will not apply. In the case in hand, it appears that the respondent is excluded from the definition of employee under the Workmen's Compensation Act, 1923 [clause (xix) to Schedule II] whereby persons connected with the generation, transformation and supply of electricity are to be treated as workmen for the purposes of Workmen's Compensation Act. (underlined by us to supply emphasis).
Whereas in the case of Wasim Ahmed Khan v. WAPDA (1997 SCMR 2000), once again the employees of WAPDA, holding post under the Authority, were deemed to be in service of Pakistan, for the purposes of STA, 1973, therefore, it was held that "removal or termination of service of such employee, falling within the mischief of Section 17(1-A) of the Act, could not be called into question under Industrial Relations Ordinance, 1969 or the Essential Services (Maintenance) Act, 1952, or under any law for the time being in force, before any Court, tribunal or commission". In the case of Chairman, WAPDA v. Abdul Hafeez Khan (2000 SCMR 1734), it was ruled by this Court that "every person holding a post under the WAPDA, not being a person who was on deputation to the Authority from any province, was to be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973". Again in the case of Muhammad Ibrahim Mangrio v. Chairman WAPDA (2001 SCMR 848) this Court examined the question "as to what is the rationale behind the legislative move in relation to employees of WAPDA in the context of the Constitutional mandate, contained in Articles 260, 240 and 212 of the Constitution" and answer to the query was that "it is an admitted position that the provisions contained in Section 17(1-B) (ibid) are tantamount to making the declaration by the Legislature to the effect that the petitioners were in the `service of Pakistan and deemed to be civil servants for the purposes of Section 4 of the Service Tribunals Act (No. LXX of 1973).
Now it would be appropriate to note that earlier to promulgation of Section 2-A of the STA, 1973, by a legal fiction, Legislature similarly conferred status of `civil servant' upon the employees of Corporation, etc. by means of Corporation Employees (Special Powers) Ordinance, 1978 (Ordinance No. XIII of 1978). Sections 3 and 5, being relevant are reproduced herein below for convenience sake:--
"3. Notwithstanding anything contained in any law for the time being force, or in the terms and conditions of service, a person in Corporation service appointed or promoted during the period from the first day of January, 1972, to the fifth day of July, 1977, may be removed from service or reverted to his lower post or grade, as the case may be, without notice, by the President, or a person authorized by him in this behalf, on such date as the President, or as the case may be, the person so authorized may, in the public interest, direct.
Service of a Corporation is hereby declared to be service of Pakistan and every person in Corporation service who is removed from service or reverted to a lower post or grade, under this Ordinance, not being a person who is on deputation to a Corporation from any Province, shall be deemed to be a civil servant for the purpose of the Service Tribunals Act, 1973."
It may be noted that action against the employees of a Corporation was not intended to be taken generously but only in respect of those who were inducted into service from the first day of January, 1972 to the fifth day of July 1977, and were to be removed from service or reverted to lower post or grade, as the case may be, without notice, by the President or a person authorized by him in this behalf, on such date as the President, or as the case may be, the person so authorized may, in the public interest, direct. In order to provide remedy to such like persons, they were deemed to be `civil servants' for the purpose of STA, 1973. It appears that said Ordinance was promulgated for limited purposes, therefore, had not covered the cases of all those employees, who were in the Corporation service or institutions, set up, established, managed or controlled by the Federal Government. [Section 2 of the Ordinance No. XIII of 1978]. The implication of Sections 3 and 5 of the Ordinance No. XIII of 1978 were examined by this Court in the cases of Mabood Khan v. Agricultural Development Bank of Pakistan (1989 SCMR 41) and Mehdi Khan v. Islamic Republic of Pakistan (1989 SCMR 345). For reference sake, relevant para from the case of Mabood Khan (ibid) is reproduced herein below:
"5.
Being not earlier to the Ordinance, in service of Pakistan, the
President could not exercise in respect of such employees any power relating to the terms and conditions of their Service. Declaration by law of "any other service" as declaration having been made by Section 5 of the
Ordinance, the President acquired the power reserved in Article 240, by Section 3 of the Ordinance. Reading Section 5 of the Ordinance, alongwith the
Constitutional provisions just reproduced, it follows that in declaring the
person in Corporation service' to bein service of Pakistan', power under
Article 240 of the Constitution was acquired by the President for determining their conditions of service. Nothing beyond should be read into that declaration. Next follows in Section 5 of the deeming provision whereby those employees who have been dealt with under Section 3 have been provided relief/remedy in the Service Tribunal. The deeming clause is available only to those who are proceeded under Section 3 of the Ordinance and none else. On that view of the matter, as in this case action had not been taken under the
Ordinance, the petitioner would not be deemed to be a civil servant for the purposes of Civil Servants Act or Service Tribunals Act. Therefore, Article 212 of the Constitution was not a bar to the petitioner seeking relief from the
High Court, in its Constitutional jurisdiction."
Likewise, in the case of Mehdi Khan (ibid), it was concluded that where an action is not taken under Section 3 of the Ordinance, the employees of the Corporation and those institutions controlled by the Government continue to be governed by their own terms and conditions as provided by or under any law or regulation. Therefore, Article 212 of the Constitution is not an impediment for them to seek relief from the High Court if they feel aggrieved by an illegal order of removal or dismissal or imposition of any other penalty by or under any law or regulation.
The Provincial Legislature of Sindh incorporated Section 3-E of the Sindh Service Tribunals Act, 1973, declaring "notwithstanding anything contained in any law, service of Corporation, to be the service of the Province and every person holding post in the Corporation, not being a person who is on deputation to the Corporation, shall, for the purpose of this Act, be deemed to be a civil servant".
The above legislative history furnishes proof that by making declaration, Legislature is competent to declare an employee, under any Authority, Corporation, Body or Organization established by or under the Federal Law, to be in the service of Pakistan, if he holds a post or office in connection with the affairs of the Federation or of a Province. Emphasis has been laid on the words "post in connection with the affairs of the Federation" as commonly used in Articles 240 and 260 of the Constitution, with reference to appointment to service of Pakistan and conditions of service, and the definition of service of Pakistan.
Now in view of above discussion, it becomes necessary to examine relevant provisions of the Constitution, in pursuance of which Service Tribunals are established. In this behalf, Article 212(1)(a) of the Constitution confers authority upon the appropriate Legislature to establish Administrative Courts and Tribunals. For convenience same is reproduced herein below:
"212. (1) Notwithstanding anything herein before contained the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters;
(b)
(c)
"323-A. Administrative Tribunals.--(1) Parliament may, by law, provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation owned or controlled by the Government."
"2-A. Service under certain Corporations, etc. to be service of Pakistan.--Service under authority, Corporation, body or organization established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, Corporation, body or organization shall be deemed to be a civil servant for the purposes of this Act."
A plain reading of above definition indicates that this provision has impliedly included in the definition of civil servant, such persons, who stand excluded by means of clauses (i), (ii) and (iii) of Section 2(1)(b) of the CSA, 1973. It may be recalled that there are a number of persons who are serving as deputationists, contingency staff as well as workmen in connection with the affairs of the Federation of Pakistan who could not otherwise avail remedy for the redressal of their grievance before the Service Tribunal but by enacting Section 2-A in STA, 1973, persons working under any authority, Corporation, body or organization established by or under a Federal Law, etc. have been made eligible to seek remedy before the Service Tribunal, notwithstanding the fact whether they are workers, workmen, permanent or temporary, holding a post on contract, etc. Prima facie, this provision of law, i.e. Section 2-A of the STA, 1973 has not advanced the cause of employees of Corporations, etc. by providing them remedy before the Service Tribunal because initially in the case of a Corporation/body, etc. if it has statutory backing, and rules are framed thereunder, its employees other than the workers, used to invoke the jurisdiction of the High Court under Article 199 of the Constitution i.e. a remedy which is always considered to be speedy, expeditious and in-expensive; whereas the employees governed by the relationship of master and servant rule used to approach the Civil Court for the redressal of their grievance while workers and the workmen were eligible to seek remedy before the local Labour Courts, functioning under the new dispensation of Industrial Relations Ordinance 2002, at the Divisional level with a right of appeal before the respective High Courts and appeal under Article 185(2) or a petition for leave to appeal under Article 185(3) of the Constitution before this Court, under which this Court enjoys vast jurisdiction, as compared to limited jurisdiction under Article 212(3) of the Constitution.
We have heard parties counsel at length and examined their respective contentions thoroughly, while taking into consideration the law and the judgments cited at the bar on the subject. Essentially, it would be just, fair and appropriate to examine the preliminary objections raised by learned counsel M/s. Abdul Hafeez Pirzada, Sr. ASC, Raja Muhammad Ibrahim Satti, ASC and others to the jurisdiction of this Court to examine the constitutionality of Section 2-A of the STA, 1973.
In this behalf it may be noted that this Court, in exercise of Constitutional Jurisdiction conferred upon it under various provisions of the Constitution, including Articles 184, 185, 186, 187(1) and 212(3), enjoys enormous power of judicial review. Besides, it is well settled by this time that being the apex Court, it has also been vested with inherent powers to regulate its own authority of judicial review, in as much as, that in Zafar Ali Shah v. Pervaiz Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), it has been held by the full Court that "so long as the Superior Courts exist, they shall continue to exercise powers and functions within the domain of their jurisdiction and shall also continue to exercise power of judicial review in respect of any law or provision of law which comes for examination before the Superior Courts." Argument by one of the learned counsel that in the absence of violation of any of the fundamental rights, guaranteed by the Constitution, Section 2-A of the STA, 1973 can be struck down only if in derogation of Article 8 of the Constitution and there is no other specific provision in the Constitution, authorizing this Court to exercise powers in this behalf is untenable on the face of it. A reference to the case of Mr. Fazlul Qader Chowdhry (ibid) would indicate that "Superior Courts have inherent duty, together with the appurtenant power, to ascertain and enforce the provisions of the Constitution in any case coming before them." In the case of A.M. Khan Leghari v. Government of Pakistan (PLD 1967 Lahore 227), it has been emphasized that "............ in cases of conflict between the supreme law of the Constitution and an enactment it is the duty of the Superior Courts as its protectors and defenders to declare the enactment in question as invalid to the extent of its repugnancy with the Constitutional provision in the absence of any bar either express or implied." Similarly, in Messrs Electric Lamp Manufacturers of Pakistan Ltd. v. The Government of Pakistan (1989 PTD 42), it has been held that "the Parliament in England is sovereign in the real sense and it is not subject to any constraints as in England there is no written Constitution, whereas in Pakistan the Parliament is subject to constraints contemplated by the Constitution in accordance with the procedure provided therein, but so long as it is not amended the Parliament has to act within its four corners; so a statute or any of its provisions can be struck down on the ground of being ultra vires of the Constitution." Likewise, in the case of Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457), it is held that "....... when a Court, which is a creature of the Constitution itself, examines the vires of an Act, its powers are limited to examine the legislative competence or such other limitations as are in the Constitution; and while declaring a legislative instrument as void, "it is not because the judicial power is superior in degree or dignity to the legislative power" but because it enforces the Constitution as a paramount law either where a legislative instrument is in conflict with the Constitutional provision so as to give effect to it or where the Legislature fails to keep within its Constitutional limits." In the case of Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504), the conclusion was that "Court cannot strike down a statute on the ground of mala fides, but the same can be struck down on the ground that it is violative of a Constitutional provision. In Collector of Customs and others v. Sheikh Spinning Mills (1999 SCMR 1402), this Court struck down the imposition of pre-shipment inspection service charge under the Customs Act, 1969 as unconstitutional, which of course was not based on any fundamental rights. Relevant para reads as under:--
"Considering the case from all angles, although the Federal Legislature is competent to legislate for the imposition of fees within the meaning of Entry 54, in the Federal Legislative List, Fourth Schedule to the Constitution, but again as already discussed herein before, one has to see what is the nature of the legislation and whether the same could have been legislated within the ambit of the powers of the Federal Legislature. No doubt, legislation can be made to impose fee in respect of any of the matters in the Federal Legislative List, but definitely not for pre-inspection, the benefit of which has to go to the companies appointed to carry out the inspection and not to the payees of the fees. The imposition of such fee is not in lieu of services to be rendered for the benefit of its payees .........................
For the foregoing reasons, we are of the view that the imposition of service charge as imposed under Section 18-B of the Act towards the pre-shipment inspection is ultra vires of the powers of the Federal Legislature."
Likewise, in the case of Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others (2002 SCMR 312) this Court observed that "the function of the judiciary is not to question the wisdom of Legislature in making a particular law nor it can refuse to enforce it even if the result of it be to nullify its own decisions provided that law is competently made; its vires can only be challenged being violative of any of the provisions of the Constitution and not on the ground that it nullifies the judgment of the Superior Courts." In this judgment the use of expression `any' has widened the jurisdiction of the Court and extended it to the extent of the violation of the any of the provisions of the Constitution including fundamental rights. Similarly in Ghulam Mustafa Ansari v. Government of Punjab (2004 SCMR 1903) it was held that "ordinarily it is not for us to question the wisdom of the Legislature merely on the ground that a provision of law may work some inconvenience or hardship in the case of some persons, unless it be violative of a Constitutional provision including the fundamental rights."
Adverting to the submission by Mr. Tariq Asad, ASC that Supreme Court of India has been vested with the powers to declare any law unconstitutional under Article 131-A of Indian Constitution, whereas no such powers have been conferred upon this Court under the Constitution except the powers under Article 8 of the Constitution, which are subject to violation of fundamental rights.
It may be pointed out that Article 131-A was inserted in the Constitution of India by means of 42nd Amendment but later on omitted by 43rd Amendment of the Constitution. However, fact remains that prior to the amendment and even now the Supreme Court of India had been examining the constitutionality of different laws and has declared them unconstitutional. Reference in this behalf may be made to Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536. In this judgment, Section 11-B of the Central Excise and Salt Act, 1944 was struck down as being violative of Article 265 of the Constitution. Reference may also be made to Marbury v. Madison [(1803 2 Law Ed. 60 (73)], which was relied upon and approved in Saiyyid Abul A'la Maudoodi v. The Govt. of West Pakistan (PLD 1964 SC 673).
It may be observed that in the Constitution of United States, there is no express provision, empowering the Supreme Court of United States to invalidate a statute. Nevertheless, in the case of Marbury (ibid), Chief Justice Marshall observed that "it is, emphatically, the province and duty of the judicial department to say what the law is; those who apply the rule to particular cases, must of necessity expound and interpret that rule; if two laws conflict with each other, the Courts must decide on the operation of each; So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the Court must determine which of these conflicting rules governs the case; this of the very essence of judicial duty; if then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary Act of the Legislature, the Constitution and not such ordinary Act, must govern the case to which they both apply."
The principle laid down in Marbury case (ibid) has been followed invariably by the Courts of different jurisdictions. Reference in this behalf may also be made to the case of Australian Communist Party v. The Commonwealth [83 CLR 1 (1950-51)]. It is also to be noted that although in the Australian Constitution as well, there is no express provision, authorizing the High Court (which is the highest Court of the country) to strike down a statute, yet a number of laws have been struck down by the said Court being contrary to Constitutional provisions, essentially on the basis that Constitution being the highest law every statute must conform to its parameters and where it fails to do so, it must be held repugnant to the Constitution and struck down. The Supreme Court of India expressed similar view in the case of Supreme Court Advocates-on-Record Association v. Union of India (AIR 1994 SC 268). Relevant para therefrom is reproduced herein below:
"The Constitution of India which we have given to ourselves is the fundamental law of the land. The Judiciary, under the Constitution, is designed to be an intermediary body between the people on the one side and the Executive on the other. It belongs to the Judiciary to ascertain the meaning of the Constitutional provisions and the laws enacted by the Legislature. In order to keep the Executive/Legislature within the limits assigned to their authority under the Constitution, the interpretation of laws is the proper and peculiar province of the Judiciary. Constitution is the "will" of the people whereas the statutory laws are the creation of the Legislature who are the elected representatives of the people. Where the will of the legislators--declared in the statutes--stands in position to that of the people--declared in the Constitution--the will of the people must prevail. The Constitution of India provides for an elected President, House of People is elected. The State Legislators are elected. Supreme Court Judges are not elected, they are appointed under the Constitution. So are other High Court Judges. Yet the Constitution gives unelected Judges a power--called judicial review under which they may nullify unconstitutional acts of the Executive and of the elected representatives of the people assembled in the Parliament and the State Legislatures. This conclusion does not suppose that the Judiciary is superior to the Legislature. It only supposes that the power of the people--embodied in the Constitution--is superior to both.
It may also be emphasized that in the Indian jurisdiction as well, learned Supreme Court struck down a statute where there was no question of violation of fundamental rights. Reference in this behalf may be made to Sundararamier & Co. v. State of Andhra Pradesh (AIR 1958 SC 468). Relevant para therefrom is also reproduced herein below for convenience:
"Now, in considering the question as to the effect of unconstitutionality of a statute, it is necessary to remember that unconstitutionality might arise either because the law is in respect of a matter not within the competence of the Legislature, or because the matter itself being within its competence, its provisions offend some Constitutional restrictions. In a Federal Constitution where legislative powers are distributed between different bodies, the competence of the Legislature to enact a particular law must depend upon whether the topic of that legislation has been assigned by the Constitution Act to the Legislature."
Thus, foregoing discussion leads us to conclude that this Court is competent to examine the vires of a statute, if it has been promulgated in derogation of any of the provisions of the Constitution, apart from Article 8 of the Constitution.
Mr. Naeem Bukhari, learned ASC objected to the maintainability of the proceedings on the premise that Section 2-A of the STA, 1973 was promulgated as far back as 10th June 1997 by means of Service Tribunals Amendment (Act No. XVII) of 1997, and it worked successfully, therefore, at this belated stage, it cannot be struck down.
Learned Attorney General opposed the arguments and stated that laches cannot be pleaded when a question of constitutionality of a law has been raised.
It is a factual position that since the promulgation of Section 2-A of the STA, 1973 its constitutionality never came under attack. However, in the instant case as noted in the paras supra, on examining the pleadings of the parties, it became necessary to examine its constitutionality. This Court in the case of Fazlul Quader Chowdhry (ibid) has held that "In any event, on questions relating to the constitutionality of actions the ground of laches cannot prevail, for there, can be no estoppel against the Constitution and an act which is unconstitutional cannot become Constitutional by lapse of time, nor can it vest anyone with any kind of legal right to benefit from such an unconstitutional act." Similarly in the case of Attorney General of Australia v. The Queen Boilermakers' Society of Australia (PLD 1957 Privy Council 115), identical question was examined and it was held as under:--
"It is, therefore, asked, and no one can doubt that it is a formidable question, why for a quarter of a century no litigant has attacked the validity of this obviously illegitimate union. Why in Alexander's case itself was no challenge made? How came it that in a series of cases, which are enumerated in the majority and the dissentient judgments it was assumed without question that the provisions now impugned were valid?
It is clear from the majority judgment that the learned Chief Justice and the Judges who shared his opinion were heavily pressed by this consideration. It cannot be otherwise. Yet they were impelled to their conclusion by the clear conviction that consistently with the Constitution the validity of the impugned provisions could not be sustained. Whether the result would have been different if their validity had previously been judicially determined after full argument directed to the precise question and had not rested on judicial dicta and common assumption it is not for their Lordships to say. Upon a question of the applicability of the doctrine of stare decisis to matters of far-reaching Constitutional importance, they would imperatively require the assistance of the High Court itself. But here no such question arises. Whatever the reason may be, just as there was a patent invalidity in the original Act which for a number of years went unchallenged, so for a greater number of years an invalidity which to their Lordships as to the majority of the High Court has been convincingly demonstrated, has been disregarded. Such clear conviction must find express in the appropriate judgment."
Learned Attorney General also relied upon Immigration and Naturalization Service (ibid) and stated that Supreme Court of United States of America struck down the power of legislative veto even through grant of such powers had become common over a span of several decades.
Thus, it is concluded that this Court cannot be refrained from examining the constitutionality of a law because of lapse of time, therefore, notwithstanding any objection, if the constitutionality of a law is under challenge, its vires can be examined despite the fact that it had remained on the statute book for a considerable time.
Preliminary objection raised in Paragraph No. 51 has already been attended to above. However, it may be observed that whenever there is a pure question of law, it can be raised at any time, either by the party or taken up by the Court itself, and the duty to decide in accordance with law cannot be avoided on an untenable alibi (of not having been raised by a party) i.e. ignorance of a litigant or his counsel because this duty flows from the Constitution. Reference in this behalf may be made to the cases of Abdullah Khan (ibid) and Board of Intermediate and Secondary Education (ibid). In the last mentioned case, it was observed as follows:
"A Judge must know the adage that a Judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise him is not a complete excuse in the matter."
(i) When an appeal is filed, the matter becomes sub-judice and is re-heard by the Appellate Court, which does not act merely as the Court of error;
(ii) After, there has been an appeal even though, an Appellate Court simply affirms the order of Original Court the only decree or order in existence is the order of the Appellate Court;
(iii) The Original and appellate proceedings are steps in one proceedings."
This Court had an opportunity to examine identical proposition in the case of Pir Sabir Shah's case (ibid), wherein it has been held that "the doctrine that there is distinction between judicial review and appellate jurisdiction in the sense that questions of vires belong to the former and not to the latter jurisdiction is a judicially evolved doctrine, and like all judicially evolved doctrines, it is, and ought to be, flexible and capable of new application; the distinction should not be regarded as something "engraved on tablets of stone"; Foster case serves as an example in which that doctrine was effectively exploded." High Court of Sindh in the case of Nazrul Hassan Siddiqui v. Federation of Pakistan (2000 PLC (CS) 189), after having surveyed the judgments on the point concluded that "the Federal Service Tribunal had the jurisdiction to determine the vires of a statute." That being the case, the Supreme Court certainly would have jurisdiction to determine the vires of a statute in exercise of its jurisdiction under Article 212(3) of the Constitution.
It is important to note that in the cases, pertaining to WAPDA, particularly Project Director Ghotki, (WAPDA) (ibid), it was specifically held that "that apart, for the purposes of the Service Tribunals Act only such of the employees of the WAPDA could be treated as civil servants who were holding a post under the Authority and as Work charge employees hold no post hence they cannot for the purposes of Service Tribunals Act be treated as civil servants. (emphasis provided); and finality it was concluded that "in the absence of their being civil servants, the remedy lay before the forum other than the Service Tribunal."
The ratio decidendi of the judgments, discussed above, lays down following two basic propositions, for the purpose of ascertaining as to whether a person is in the service of Pakistan:--
(a) A declaration must exist that he shall be deemed to be in the service of Pakistan.
(b) Such person must hold a post or office in connection with the affairs of the Federation or of a Province and includes in all Pakistan Service.
"The above view taken by the learned Tribunal does not appear to be correct as Section 2-A which was inserted in the Service Tribunals Act, 1973 by its own force, created a class of Government servants by fiction, for the purpose of allowing them to avail remedy of appeal before the learned Service Tribunal. Section 2-A ibid while providing that the service under an authority, Corporation, body or organization established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share of interest is declared to be the service of Pakistan and every person holding a post under such Corporation or organization shall be deemed to be a civil servant for the purpose of Service Tribunals Act, does not make any differentiation between the employees working in such organization either as regular employees or contract employees or workmen. We are, therefore, of the view that as the appellants were covered by the provisions of Section 2-A for the purposes of availing remedy before the Service Tribunal. The fact that they were employed in the organization/Corporation on contract basis, could not disentitle them to the remedy of appeal which became available to them on account of in Corporation of Section 2-A of the Service Tribunals Act, 1973. Accordingly, the above appeals are allowed, the order of the learned Service Tribunal is set aside and the cases are remanded to the learned Service Tribunal with the direction to decide the same afresh in the light of above observations. There will, however, be no order as to costs."
Learned Attorney General pointed out that if this principle is accepted then the persons, working in the Government controlled Corporation, either on deputation or on contract basis or in the capacity of worker or workman, shall enjoy the status of the civil servant on account of the legal fiction because no such declaration is required to be made in their favour, as they are already working in the Government departments.
In view of above position, we are of the opinion that Article 260 of the Constitution does not mandate to Legislature to declare any person to be in the service of Pakistan, and by deeming clause to be a civil servant for the purpose of STA, 1973. We have minutely examined the earlier judgments on the point, particularly the cases of WAPDA employees, discussed above, as well as the judgment in the case of Qazi Wali Muhammad (ibid), to come to the conclusion that a person can be declared to be in service of Pakistan but not necessarily a civil servant, in terms of CSA, 1973. It was further observed in Ashraf Naeem (ibid) that "if the respondent stands excluded from the definition of civil servant as contained in Civil Servants Act, then the statutory provision made for the civil servants will not apply and such persons connected with the generation, transformation and supply of electricity are to be treated as workmen for the purposes of Workmen's Compensation Act." Reference in this behalf has already been made to a number of judgments. This Court in another case i.e. Divisional Engineer Phones (ibid) also examine this proposition and concluded as under:
"The respondents in their appeals belong to the category of the person who has been declared as civil servant under Section 2-A of the Service Tribunals Act, 1973, for the purpose of availing the remedy before the Service Tribunal, such persons in the absence of a corresponding amendment in the Civil Servants Act, 1973 cannot automatically become the civil servants, within the meaning of Civil Servants Act, 1973."
As a result of above conclusion, the appeals filed by Divisional Engineer Phones were accepted for the reason that the respondents who were admittedly appointed after creation of the Corporation, did not enjoy the status of civil servant, therefore, they could not avail the remedy in respect of disputes, relating to their terms and conditions of service before the Service Tribunal established under the Service Tribunal Act, 1973. This view has been approved in the case of Koural Channa (ibid).
Undoubtedly the proposition laid down in the above judgments was very important from the jurisprudential point of view but subsequent thereto liberal view was followed by this Court, allowing a person to continue to avail remedy under Section 2-A of the STA, 1973 because of the fact that its constitutionality had never been examined, otherwise, this proposition being more logical and convincing is bound to be followed subsequently in the judgments delivered from time to time. At this juncture, reference to the case of Qazi Wali Muhammad (ibid) would not be out of context, wherein this Court while examining the status of employees of the Supreme Court has held that
"the expression service of
Pakistan' used in Article 260 of the Constitution has a much wider connotation than the termcivil servant' employed in the Civil Servants Act; while the
civil servant' is included in the expressionservice in Pakistan', the vice versa is not true; civil servant' as defined in the Civil Servants Act, 1973 is just a category of service of Pakistan mentioned in Article 260 of the
Constitution." It was further observed that "to illustrate the point, it is stated that members of Armed Forces though fall in the category ofservice of Pakistan' but they are not civil servants within the meaning of
Civil Servants Act and the Service Tribunal Act".
It is equally important to observe that under Article 260 of the Constitution, a person can be declared to be in the service of Pakistan if his duties have a nexus with the affairs of the Federation, meaning thereby that a person who is playing an active role in the performance of sovereign functions of the State and exercises public powers can legitimately claim to be in the service Pakistan. Undoubtedly the Parliament can declare any service to be service of Pakistan but subject to the condition that such declaration should not be based on a legal fiction, as done in the instant case, whereby through a deeming clause, a person of a Government controlled Corporation in terms of Section 2-A of the STA, 1973 has been declared to be in the service of Pakistan and for such reason he shall be deemed to be a civil servant. Secondly, conditions under Article 260 of the Constitution with regard to having nexus/connection with the affairs of the Federation of Pakistan have not been fulfilled. According to "Understanding Statutes" by S.M. Zafar 2nd Edition page 101, the purpose of importing a deeming clause is to impose an artificial construction of a word or phrase that would not otherwise prevail and sometimes it is to make the construction certain." It has been further observed by the learned jurist that "if the deeming provision is invalid, all the ancillary provisions fall to the ground alongwith it; and if the later Act is entirely dependent upon the continuing existence and validity of the earlier Act, which is held to be unconstitutional and has no legal existence the provisions of the later Act are incapable of enforcement." It is important to note that two important concepts have been introduced by the learned author in the construction of the provision creating a statutory fiction, namely; "statutory fiction should be carried to its logical conclusion as held in Muhammad Yasin v. Sheikh Ghulam Murtaza and another (PLD 1988 SC 163) but the fiction cannot be extended beyond the language of the section by which it is created or by importing another fiction," therefore, to find out a solution, it has been observed that "principle of harmonization shall be attracted" and ultimately it was held that "the impact of deeming clause could be curtailed if it produces a disgraceful result."
This Court had an occasion to examine the effect of a deeming clause in the case of Mehreen Zaibun Nisa (ibid), wherein the effect of a deeming clause in light of the earlier judgments was summed up as follows:--
(i) When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist.
(ii) Where a statute says that you must imagine the state of affairs, it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
(iii) At the same time, it cannot be denied that the Court has to determine the limits within which and the purposes for which the Legislature has created the fiction.
(iv) When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to."
As far as third principle, noted herein above, is concerned, the Court is required to determine the limits within which and the purpose for which the Legislature has created the fiction. Before its promulgation, a debate had also taken place in the Parliament, extracts whereof have been placed on record. A perusal whereof indicates that the objects of enacting Section 2-A was to facilitate the persons working in Government controlled Corporations in order to provide them adequate and efficacious remedy for the redressal of their grievance. But, in our considered opinion promulgation of Section 2-A of the STA, 1973 has not advanced the cause of the employees working in the Corporations, particularly where statutory backing is not available to them. Although this law was promulgated on 10th June 1997 and thereafter the Courts took sufficient time in interpreting its provisions, initially at the High Court level, subsequently before the Service Tribunal and finally before this Court but in none of the judgments, its vires were examined. However, keeping in view the socio-economic conditions, prevailing in the country, it seems that even by promulgation of Section 2-A of the STA, 1973, the said object has not been achieved. In this behalf, it may be noted that the persons who fall within the category of worker or workman, have more efficacious, adequate and speedy remedy before the Labour Court, headed by a District Judge and appeal before the High Court under the IRO, 2002 and after exhausting remedy before the High Court, a petition for leave to appeal is competent before this Court under Article 185(3) of the Constitution, the scope whereof is broader than the provisions of Article 212(3) of the Constitution, where leave can only be granted if a substantial question of law of public importance is involved. As far as the other category of the contract employees and work charged employees are concerned, they can avail the remedy of claiming compensation before the Civil Courts, functioning all over the country. Similar would be the position of deputationists if aggrieved by an order relating to terms and conditions of service. Comparing to it, the remedy provided under Section 2-A of the STA, 1973 is more cumbersome, harsh and expensive. Moreover, it is a fact that a large number of cases have piled up before the Federal Service Tribunal, which, eventually, would take a long time in disposal and thereafter, aggrieved party, challenging the decision, with the result that the dispute shall remain pending for a considerable period, before higher forum.
It may also be noted that the persons covered under Section 2-A of the STA, 1973 have been deprived of a right of appeal because earlier the view was that after exhausting departmental remedy, such persons can file appeal before the Service Tribunal but after the judgment in Ghulam Abbas's case (ibid) an aggrieved person can directly approach the Service Tribunal for redressal of his grievance whereas it has been held by this Court that under the Islamic system of dispensation of justice, as a matter of right, one appeal should be made available. Reference in this behalf can be made to the cases Pakistan v. General Public (PLD 1989 SC 6), Chenab Cement v. Banking Tribunals (PLD 1996 Lahore 672) and Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193), laying down that a statute which does not provide at least one appeal is unreasonable and can be struck down. Therefore, for this reason as well, Section 2-A of the STA, 1973 seems to be unconstitutional.
So far as the fourth principle is concerned, it is not attracted in the instant case because after promulgation of Section 2-A of the STA, 1973, the persons working in the Government controlled Corporations, are being treated to be in the service of Pakistan and due to this reason, they are being treated as civil servant for the purpose of STA, 1973. The purpose for which the status of civil servant was given to them has already been discussed herein above.
"In Pakistan Corporations are not created by a Royal Charter but they are incorporated either by a statute like the Karachi Port Trust incorporated under the Karachi Port Trust Act, 1886, or by registration under a statute like companies under the Companies Act or associations under the Societies Act or cooperative societies under the Cooperative Societies Act or a trust under the Trust Act, etc. However, Corporations can also be created by an executive order under the authority delegated by an Act of Parliament. In Pakistan, we find such a delegation inter alia in Section 3 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act XIII of 1975), which provides that the Federal Government shall constitute a body to be known as the Evacuee Trust Property Board, for the management and disposal of evacuee trust property and that the Board shall be a body corporate by the name aforesaid having perpetual succession and common seal, with power to acquire, hold and dispose of property both movable and immovable, and to contract and sue and be sued in its name. It is an admitted position that the Resolution has not been passed in pursuance of any such delegated statutory power. In this view of the matter, the Board is neither a corporate body nor a juristic person competent to employ teachers. Mr. Bashir Ahmed Ansari has invited our attention to the factum that the employees of the Pakistan Broadcasting Corporation, the Pakistan Television Corporation, the WAPDA and the PIA have been held to be employees of corporate bodies and not civil servants though they are controlled by the Federal Government. This is so, for the reason that the corporate status of the above Organization has been created by virtue of a statute or by virtue of registration as a corporate body under the Companies Act. "
At this juncture it may also be observed that Article 260 of the Constitution has conferred authority upon the Parliament to declare any other service to be the service of Pakistan under an Act of Parliament. The words "declared" used therein is of much significance. In view of its importance, it has to be seen as to whether there was any doubt or difficulty in the definition of civil servant under Section 2-A of the STA, 1973, which persuaded the Legislature to make a declaration that the persons working in the Government controlled Corporations, etc. shall be declared to be in the service of Pakistan and incumbents, therefore, shall be deemed to be civil servants. In case, there is some doubt in respect of a state of the law, Parliament may decide to pass a declaratory Act, setting out what the law is. ["Understanding Statute" by S.M. Zafar Second Edition (Page 287)]. Essentially on the plain reading of the definition of the civil servant, both under Section 2-A of the STA, 1973 and Section 2(1)(b) of the CSA, 1973, there was absolutely no doubt. In this behalf the Parliament had also not identified any doubt as would be evident from the Parliamentary debates, which took place at the time of promulgation of Section 2-A of the STA, 1973. A declaration, however, has not been made to clarify any doubt rather by introducing a legal fiction, the persons working in Government controlled Corporations, etc. have been made civil servants for the purpose of Article 260 of the Constitution. The language employed by the Constitution, authorizing the Parliament to declare any other service as service of Pakistan, only confer authority to make a solid declaration in respect of any such service, instead of bringing it into the folds of service of Pakistan by introducing a legal fiction.
Now turning towards the second limb of the argument i.e. as to whether the persons working in the Government controlled Corporations, etc. in terms of Section 2-A of the STA, 1973 are performing their functions in connection with the affairs of the Federation, being one of the most important condition for attaining the status of being in the service of Pakistan. In this behalf, a criteria has been laid down in the case of Saeed Rabbani (ibid). Similarly, in the case of Salahuddin (ibid), it was held as under:
"Now what is meant by the phrase "performing functions in connection with the affairs of the Federation or a Province." It is clear that the reference is to governmental or state functions, involving, in one form or another, an element of exercise of public power. The functions may be the traditional police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or the Federal Government or a Provincial Government. However, in recent years, there has been manifest a growing tendency on the part of Governments to create statutory Corporations for undertaking many such functions, particularly in the industrial and commercial spheres, in belief that free from the inhibiting effect of red-tapism, these semi-autonomous bodies may prove more effective, flexible and also profitable. Inevitably, Government retains effective control over their functioning by appointing the heads and other senior officers of these Corporations, by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities.
Examples of such statutory Corporations are the National Bank of Pakistan, the West Pakistan Water and Power Development Authority, the National Shipping Corporation, the Agricultural Development Bank of Pakistan and the large number of Universities functioning under their respective statutes. On account of their common attributes, as mentioned in the preceding paragraph, they have all been regarded as persons performing functions in connection with the affairs of the Federation or a Province.
However, private organizations or persons, as distinguished from Government or semi-Government agencies and functionaries cannot be regarded as persons performing functions in connection with the affairs of the Federation or a Province simply for the reason that their activities happen to be regularized by laws made by the State. Accordingly, a joint-stock company, incorporated under the Companies Act, for the purpose of carrying on commercial or industrial activity for the benefit of its shareholders, cannot be regarded as a person performing State functions, just for the reason that its functioning is regulated by law or that the distribution of its manufactured products is subject to Government control in the public interest. The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not."
This view has also been reiterated in the Aitchison College (ibid).
Mr. Wasim Sajjad, learned Sr. ASC while relying upon the case of Salahuddin (ibid), argued that statutory Corporations are the same as the Government itself, therefore, their employees are to be treated at par with each other.
Argument advanced by him is not acceptable because the ratio decidendi of the judgment is that to determine as to whether a person is holding a post or office in connection with the affairs of the Federation, an element of sovereign authority and exercise of public power is essential to bring an employee or service within the scope of the words "affairs of the
Federation". Thus it is concluded that the Parliament cannot enact a law declaring any other service to be the service of Pakistan by or under any Act, without demonstrating that such declared service has nexus with the affairs of the Federation. In fact, the framers of the Constitution have restricted the power of the Parliament to declare any service to be service of Pakistan by placing an embargo that such person should also hold a post or office in connection with the affairs of the Federation. Unless this condition is fulfilled, ever service cannot be declared by the Parliament to be service of Pakistan. In a number of judgments, this Court, in respect of statutory Corporations and
Bodies owned or controlled by the Government, has held that such Corporations or Bodies are distinct and different from the Government and their employees are not ipso facto in the service of Pakistan. Reference in this behalf to the case of Printing Corporation of Pakistan v. Province of Sindh (1985 CLC 1486), would not be out of context, wherein it was held that "workers working the petitioner company drawing up to Rs. 1000/- in terms of the definition of
worker' given in the Ordinance can be said to be in service of State; they are in fact in service of the petitioner Company. As pointed out herein above the company has the power to employ any person under the Memorandum of Association; the mere fact that the Federal Government has totally subscribedA' class shares and appoints the Directors or that it issues directives from time to time will not change the status of the petitioner workers into the status of service in State; the concept of person in the service of the State' is a very old concept and in fact is now akin to the phrase "persons in the service of Pakistan"; in this regard reference may be made to Articles 242 and 275 of the Constitution, 1973; it has been consistently held by the Supreme Court that the employees of Corporations established by the Federal Government are not in service of Pakistan." To arrive at this conclusion, reference was made to Chairman East Pakistan Industrial Development Corporation, Dacca v.
Rustam Ali (PLD 1966 SC 848), Abdul Salam Mehta v. Chairman Water and Power
Development Authority (1970 SCMR 40), Shahid Khalil v. Pakistan International
Airlines Corporation Karachi (1971 SCMR 568), Shujauddin Ahmad v. Oil and Gas
Development Corporation (1971 SCMR 566) and R.T.H. Janjua v. National Shipping
Corporation (PLD 1974 SC 146). The judgment in the case of Printing Corporation of Pakistan (ibid) came up under consideration before this Court in the case of
Printing Corporation of Pakistan v. Province of Sindh (PLD 1990 SC 452), wherein it was held that "the fact that the part of the capital has been subscribed by the Government does not, in any manner, establish that the
Federal Government controls the affairs of the appellant and the workers of the appellant are in the service of the State; similarly, if the Government has provided working capital, it would be a loan to the appellant, which has to be repaid; therefore, it cannot be said by any reason or logic that by doing so the Federal Government controls the affairs of the appellant or the workers of the appellant could be considered to be in the service of the State." It was further held that "merely by the fact that the Government owns 60 per cent share capital or theA' class ordinary shareholders representing the
Government of Pakistan can appoint Directors including the Chairman, the
Managing Director and the Finance Director, would not establish that the affairs of the Corporation are controlled by the Government."
This Court, while interpreting the Constitutional provisions, in the case of Don Basco High School (ibid), has held that it is well established rule of construction of statute that general terms following particular ones apply only to such persons or things as are Ejusdem Generis with those comprehended in the language of the Legislature. Reliance in this behalf has also been placed on R.V. Cleworth (1864) 4.B & S. 927. Relevant para therefrom is reproduced herein below:
"In other words, the general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended."
In the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), it was observed that "the general words cannot be construed in isolation but the same are to be construed in the context in which, they are employed; in other words, their colour and contents are derived from their context." Likewise, in the case of Farooq Ahmed Khan Leghari (ibid), similar observations were made. Similarly, in this very context, while disposing of Presidential Reference No. 2 of 2005 (PLD 2005 SC 873), it was observed that "general words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In another judgment in the case of Adil Abdul Jabbar (ibid), High Court of Sindh observed that "it also needs to be kept in view that the Service Tribunals Act is a law enacted under Article 212 of the Constitution and though the Parliament is competent to declare a person to be in the service of Pakistan, such person, must perform an element of public duty; we fail to comprehend how a clerk of a private Stock Exchange could be deemed to be performing such public service."
Article 63 of the Constitution creates a disqualification for a candidate for the membership of Parliament if he is in the service of any statutory body or body, owned or controlled by the Government or in which the Government has controlling share or interest but status of such person is different, if he is in service of Government controlled Corporation and has been declared to be in the service of Pakistan. The service of Pakistan' is a broader expression which itself covers theservice of any body, owned or controlled by the
Government or in which the Government has a controlling share or interest'.
This expression would not have been used as it would have been redundant in this Article because it is well settled that redundancy cannot be attributed to a Constitutional provision. Reference in this behalf may be made to the case of
Shahid Nabi Malik (ibid) and Reference No. 2 of 2005 (ibid). Therefore, both the expressions are to be considered distinctly with reference to the context, relating to the matter under discussion. It is established rule of interpretation that where the Legislature has used two different words in legislation, they must be given different meanings. Even if the words appear to be synonymous or akin to one another they should be assigned different meanings to avoid making one or the other legislative expression redundant. Reference may be made to State v. Zia-ur-Rehman (PLD 1973 SC 49) and Raja Maula Dad Khan v. West Pakistan Bar Council (PLD 1975 SC 469). From the principle highlighted herein above and as discussed in these two judgments, it is abundantly clear that Legislature, under Article 63 of the Constitution, by using the expressions service of Pakistan' andservice of any statutory body or any body, owned or controlled by the Government or the Government has controlling share or interest' in it had identified the consequences, which would ultimately result in disqualification of a candidate in terms of clause (k) of
Article 63(1) of the Constitution. Comparing this Article with Article 212(1)(a), expression service of Pakistan' has been employed and it does not make any reference toservice of any statutory body or any body, owned or controlled by the Government or in which the Government has controlling share or interest'. Thus only those persons who are covered within the definition of
service of Pakistan' in terms of Article 212(1)(a) of the Constitution, can invoke the jurisdiction of Tribunal, otherwise when the Constitution framers have used the expressionservice of any statutory body or any body, owned or controlled by the Government or in which the Government was controlling share or interest' alongwith the expression service of Pakistan' may have used it.
This distinction is presumed to be in the knowledge of the Constitution framers in view of the earlier judgment of this Court in the case of Chairman East
Pakistan Industrial Development Corporation, Dacca (ibid), wherein it has been held that "employees of statutory Corporations are not the Government servants." Similarly in the case of Fazlul Quader Chowhdry (ibid), it has been held that "between amendment and adaptation there is a clear distinction and this distinction had already been the subject of discussion in judgments of Courts before this Constitution was framed; the framer of the
Constitution is presumed to have been well aware of the distinction which had been accepted by the Courts; when he used the wordadaptation', therefore, and omitted the word `amendment' in Article 224(3), there can be little doubt that he did so deliberately; the Legislature is by presumption an ideal person and has full knowledge of the state of case law, at least the important part of it."
It is important to note that intention of the framer of the Constitution had never been to provide a forum of the Service Tribunal to the employees of the Government controlled Corporations, in terms of Section 2-A of the STA, 1973. Had it been so, it could have incorporated the same in Article 212(1)(a) of the Constitution as provided under Article 323-A of the Constitution of India, which reads as under:
"323A. (1). Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation owned or controlled by the Government. (emphasis provided)
Thus, with reference to above Article of the Constitution of India, the argument put forward by Mr. Iftikhar Gillani, learned Sr. ASC that Section 2-A creates a new and distinct class of Government servants, which is neither covered by the definition of civil servant' nor by the definition ofservice of Pakistan', seems to be correct. Therefore, for this reason alone Section 2-A of the STA, 1973 becomes ultra vires of the
Constitution because the employees of Government controlled Corporations etc.
are not covered by the definition of `service of Pakistan' as provided under
Article 260 of the Constitution nor their cases can be taken up under Article 212(1)(a) of the Constitution, as such the Federal Service Tribunal has no jurisdiction to grant them relief in terms of Article 212(1)(a) of the
Constitution because under this provision of the Constitution, administrative tribunals are set up for the purpose of exercising jurisdiction in respect of the terms and conditions of service of those persons, who are in the service of
Pakistan. The terms and conditions of service of those employees, however, are required to be specified under Article 240 of the Constitution by or under Act of the Parliament. Thus, the conclusion would be that only those persons, who are in the service of Pakistan, as discussed herein above, and if their terms and conditions are governed either by a statute or statutory rules, in terms of
Article 240 of the Constitution, can seek remedy before the Service Tribunals.
It can be, therefore, said in other words that as the persons, who are in service of Pakistan but whose terms and conditions of service are not governed by a statute or statutory rules, cannot invoke the jurisdiction of the Federal
Service Tribunal. In this behalf in Mehboob Khan (ibid) it was observed that
"it was for the first time in 1973 that it was decided to regulate the terms and conditions of the Civil Servants through a statute and to set up
Administrative or Service Tribunals to adjudicate the matters in respect of the terms and conditions of Civil Servants; and to achieve this object Articles 212 and 240 were introduced in the present Constitution; this was followed by promulgation of Civil Servants Act, 1973 to regulate the appointment and providing for terms and conditions of the persons in service of Pakistan; simultaneously Service Tribunals Act, 1973 was introduced; the result was that jurisdiction of all Courts excluding this Court in respect of the terms and conditions of service of the Civil Servants was excluded." In this very judgment it was further observed that "according to this Article [240], the terms and conditions of the persons in service of Pakistan were to be determined by or under Act of Parliament while conditions of persons in service of Provinces were to be governed by or under Act of Provincial Assembly; this was the natural consequence of Article 212 because earlier the civil servants were enjoying Constitutional guarantees; the same having been excluded from the purview of the Constitution, the Parliament in pursuance of this Article proceeded to promulgate Civil Servants Act LXXI of 1973; similarly the
Provinces also promulgated the Provincial Civil Servants Acts; these statutes provided the superstructure while for disciplinary matters and procedure thereof Rules were promulgated at different levels." Reference at this stage to the case of Muhammad Shahbaz Sharif (ibid) would not be out of context, wherein it has been held that "it is true that a person may not be a civil servant within the meaning of Civil Servants Act, 1973 but may be in the service of Pakistan as is the case with an Ambassador; however, the fact remains that in such cases also appointments to and terms and conditions of offices are determined by or under the Act of appropriate legislature or by rules framed pursuant to Article 240 of the Constitution which is not so in respect of holders of Constitutional offices; apart from the fact that Syeda
Abida Hussain's case did not deal with the holder of Constitutional office and is, therefore, clearly distinguishable, on a closer analysis of the said judgment, it will be seen that one of the reason for holding that Syeda Abida
Hussain was in service of Pakistan as an Ambassador was that she was governed by Rules of Service applicable to civil servants framed pursuant to Article 240 of the Constitution; similarly, the case of Mahboob Khan and 242 others v.
Government of Pakistan through Secretary, Ministry of Railways, Islamabad and 5 others (1991 PLC (CS) 415) has no relevance nor does it advance the case of the petitioner; moreover in that case also it was observed that the terms and conditions of person in service of Pakistan were to be determined by or under the Act of the Parliament or the Provincial Assembly as mandated by Article 240 of the Constitution, which shows that the determining factor as to whether or not a person is in the service of Pakistan, is as to whether his terms and conditions are determined by law made under Article 240 of the
Constitution." Similarly in Qazi Wali Muhammad's case it has been held that the Federal Service Tribunal has no jurisdiction in cases where the terms and conditions of service of an employee in question are not or cannot be determined in terms of Article 240 of the Constitution. This view was followed by this Court in the case of Muhammad Siddique (ibid).
It may be noted that under Section 2-A of the STA, the Legislature has not declared the service of a person in the Government controlled organization to be the service in connection with the affairs of the Federation'. It may also be noted that under Article 240 of the Constitutionservice of Pakistan' means "any service, post or office in connection with the affairs of the
Federation." Essentially, when a person is not holding a post in connection with the affairs of the Federation or of a Province, he would not be entitled to claim himself to be in the service of Pakistan, as discussed herein above. Likewise, there is yet another important condition i.e. he must hold a post or office in connection with the affairs of Pakistan.
Mr. Naeem Bukhari, learned ASC candidly conceded that if a person is not holding a post in connection with affairs of State, he would be governed by a contract and the remedy lies in damages. In this behalf it may be noted that word permanent post' as defined in Section 2(1)(e) of the CSA, 1973, meansa post sanctioned without limit of time.' In the case of State of Assam v. Kanak
Chandra (AIR 1967 SC 884), wherein with reference to Articles 309 and 310 of the Constitution of India, the `post' has been defined as follows:
"10. In the context of Arts. 309, 310 and 311, a post denotes an office. A person who holds a civil post under a State holds `office' during the pleasure of the Governor of the State, except as expressly provided by the Constitution, see Art. 310. A post under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. Article 310(2) contemplates that a post may be abolished and a person holding a post may be required to vacate the post, and it emphasizes the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post."
In view of the criteria laid down in the above judgment, as well as the definition of `permanent post', it is concluded that the persons working in the Government controlled Corporations would not be deemed to be holding a post under Section 2-A of the STA, 1973 unless there is warrant under law i.e. that a statute governs appointments and regulates terms and conditions. In this context reference may be made to the employees, who are working on contract basis or are on deputation or fall within the definition of worker or workman, but cannot be considered to be holders of the post, in order to fulfill the requirement of Article 260 of the Constitution, according to which a person will be in the service of Pakistan, if he is holding a post or office in connection with the affairs of the Federation. Similarly, Article 240(a) of the Constitution speaks in respect of services of the Federation, posts in connection with the affairs of the Federation and All Pakistan Services. In order to make out a case for the purpose of hearing before a Service Tribunal, a person falling within the scope of Section 2-A of the STA, 1973, is required to hold a post, otherwise, in absence of such mandatory condition, he would not be deemed to be in service of Pakistan. Therefore, the Service Tribunal would have no jurisdiction to grant him relief.
Mr. M.A. Ghani, learned ASC contended that Civil Servants Act is a substantive law which creates rights and duties whereas Service Tribunals Act is a procedural law and the persons whose cases are covered under Section 2-A of the STA, 1973 are seeking remedy under the substantive law. So long as CSA, 1973 is not amended, incorporating the category of the persons falling within the mischief of Section 2-A of the STA, they cannot claim relief. Reliance in this behalf has also been placed by him on Divisional Engineer Phones (ibid).
This argument has already been discussed herein above, therefore, need not be repeated.
Malik Abdul Qayyum, learned ASC while supporting the arguments of learned Attorney General for Pakistan argued that the efforts should be made to save the enactment instead of destroying it, therefore, he contended that by harmonizing the provisions of Section 2-A of the STA, 1973, it may be declared that the employees of the Government controlled Corporations, whose terms and conditions have been determined by means of a statute, in terms of Article 240 of the Constitution, would be considered to be civil servants, provided they can show that a post or office is held by them; secondly, the employees whose terms and conditions are not governed by a Statute but they are discharging their functions in connection with the affairs of the Federation, they can invoke the jurisdiction of the High Court under Article 199 of the Constitution for the redressal of their grievance; thirdly, the persons who are not covered under these two categories, they may be left to avail the remedy subject to their terms and conditions and; fourth category of the persons shall have the remedy before the forums provided by the labour laws.
Mr. Kamal Azfar, learned ASC has rightly contended that Section 2-A of the STA, 1973 only relates to change of forum but does not alter the terms and conditions of the employees, as according to him, there are Corporations who have statutory rules for the purpose of governing the affairs of their employees and some of the Corporations have got only Regulations, therefore, according to him out of both the categories, the one who fulfilled the requirement of Articles 240 and 260 of the Constitution shall have remedy before the Service Tribunal, constituted under Article 212 of the Constitution and the others may approach to the High Court or the Labour Court as the case may be.
The contention of Khawaja Muhammad Farooq, ASC seems to be correct that if the terms and conditions of an employee have not been determined under Article 240 of the Constitution, then they cannot seek remedy before the Service Tribunal and Section 2-A of the STA, 1973 would not be of any help to them. He further emphasized that if there are no statutory rules for governing the terms and conditions of the employees of a Corporation, they have to seek remedy by way of filing a suit for damages as this law is still holding the field. Reliance in this behalf has been placed by him on Lahore Central Co-operative Bank Ltd. Saif Ullah Shah (PLD 1959 SC 210) and Ms. Zeba Mumtaz v. First Women Bank Ltd. (PLD 1999 SC 1106).
Likewise, the argument put forward by Ch. Mushtaq Ahmed Khan, learned ASC that clustering of litigation before one Tribunal is against the principle of policy enshrined under Article 37 of the Constitution, therefore, merely for the purpose of providing a forum the employees of Government controlled Corporation/Authority cannot be considered in the service of Pakistan, is also found with force and substance.
Mr. Shahid Anwar Bajwa, learned ASC has also advanced convincing argument that according to Article 260 of the Constitution, the Parliament is competent to declare any service to be the service of Pakistan, subject to the condition that terms and conditions of such service shall be governed by a statute or statutory rules, under Article 240 of the Constitution and if it is not possible for the law giver to lay down the terms and conditions of the service under Article 260 of the Constitution, such service cannot be declared to be service of Pakistan. Therefore, according to him, the employees of those statutory Corporations or bodies, who do not fulfill these two tests, cannot be considered to be in the service of Pakistan nor civil servant for the purpose of availing remedy before an administrative tribunal, constituted under Article 212 of the Constitution. His argument seems to be convincing that the first part of Section 2-A of the STA, 1973, whereby the service of a statutory Corporation has been declared to be the service of Pakistan, seems to be in accordance with the Constitution subject to Articles 240 and 260 of the Constitution but second part is ultra vires of the Constitution because post or office cannot be declared to be the service of Pakistan. Since such persons do not hold any post in connection with the affairs of the Federation, they cannot be deemed to be civil servants.
Similarly, Raja Muhammad Akram, learned ASC was right in saying that workers or workmen, whose cases are covered under the IRO, 2002, cannot be declared to be in the service of Pakistan for the purpose of invoking the jurisdiction of the Service Tribunal because their appointment had not taken place by virtue of the terms and conditions laid down by the Legislature under Article 240 of the Constitution nor such persons shall be deemed to be civil servants because they are not holding a permanent post for the purpose of discharging their functions in connection with the affairs of the Federation.
Mr. Wasim Sajjad, learned Sr. ASC contended that while examining the vires of Section 2-A of the STA, 1973, it would be appropriate if the Court keeps in mind the social set up of the country, in view of the observation in the case of Arshad Mehmood (ibid) and M/s. Ellahi Cotton Mills (ibid), therefore, if the status of a civil servant is conferred upon a person, covered under Section 2-A of the STA, 1973, it must be kept intact as held earlier in the case of Farid Ahmed v. Karachi Shipyard and Engineering Works Ltd. (PLD 1983 Karachi 576), Nisar Ahmed v. Secretary Ministry of Information (1984 PLC (CS) 372) and Printing Corporation of Pakistan v. Province of Sindh (1990 PLC (CS) 176).
Above argument, while making reference to the Constitutional provisions, discussed herein above, has no force. It may also be noted that in the judgments cited by the learned counsel, vires of Section 5 of the Corporation Employees (Special Powers) Ordinance, 1978 (Ordinance No. XIII of 1978) were not examined, therefore, merely for the reason that Legislature has declared the service of a Government controlled Corporation/Authority to be service of Pakistan and such person is holding the post in connection with the affairs of Pakistan, is not acceptable. However, in view of the principle of taking into consideration the social set up of the country, attempt should be made to extend the benefit of Section 2-A of the STA, 1973 to some of the persons, whose cases are protected by the Constitutional provisions i.e. Articles 240 and 260 of the Constitution.
Learned counsel also contended that following the case of L. Chandra Kumar (ibid), if this Court comes to the conclusion that the provisions of Section 2-A of the STA, 1973 are ultra vires of the Constitution then, it may be held that the judgments delivered by the Service Tribunal are with jurisdiction but they can be challenged before the High Court under Article 199 of the Constitution, or recommendations be made to the Government that against the decision of the Service Tribunal, a right of appeal be given to such employees before the High Court for the purpose of disposing of the cases and; lastly any other appropriate direction, which deemed appropriate by this Court, be issued in this behalf.
Syed Iftikhar Hussain Gillani, learned Sr. ASC also stated that instead of striking down Section 2-A of the STA, 1973, it may be interpreted in such a way that the law should be saved and intention of the Legislature can be ascertained. Indeed, Court should refrain from entering into technicalities. He has placed reliance on Reference by the President No. 1 of 1957 (ibid), Pir Sabir Shah (ibid) and Zulfiqar Ali Babu (ibid). Relevant para from the case of Pir Sabir Shah (ibid) is reproduced herein below for convenience:
"27. The question of the constitutionality of a law, or to put it differently, whether a law is intra vires or ultra vires does not depend upon consideration of jurisprudence or of policy. It depends simply on examining the language of the Constitution and of comparing the legislative authority conferred on the Parliament with the provisions of the sub-Constitutional law by which the Parliament purports to exercise that authority."
We have examined the arguments put forward in this context and we are quite in agreement with Syed Iftikhar Hussain Gillani, learned ASC that efforts should be made to save the law by excluding those portions which appear to be contrary to any Constitutional provision.
Dr. Babar Awan, learned ASC also vehemently argued that as Section 2-A of the STA, 1973 has been enacted through an Act of Parliament, therefore, the same should be saved.
There can be no cavil with the proposition but the exception is that if any Act of the Parliament is found to be in derogation of any provision of the Constitution, it would not be allowed to hold the field because of the mandate of Constitution, which is supreme for all intents and purposes.
Argument by Raja Muhammad Bashir, learned ASC seems to be convincing that there are many employees of statutory Corporations whose terms and conditions of service are regulated by statutory rules, therefore, they would fall within the domain of Section 2-A of the STA, 1973, whereas the Government controlled Corporations, which have got no statutory backing nor any statutory rules governing the terms and conditions of service of their employees, they would not fall within the mischief of Section 2-A of the STA, 1973. Such persons have remedy before the Civil Courts and thirdly as far as the workers or workmen are concerned, can have recourse to the Labour Court, which is now a days being headed by a District & Sessions Judge, therefore, Section 2-A may not be declared ultra vires of the Constitution, in entirety.
Mr. Muhammad Akram Sheikh, learned Sr. ASC contended that undoubtedly a category of the persons not covered under the definition of civil servant stands excluded from the definition of the civil servant, has been declared to be civil servant by virtue of Section 2-A of the STA, 1973 but it should not be treated as a discrimination in view of the judgment in the case of Inamur Rehman (ibid) because so far, no argument has been advanced that due to this discrimination, injustice has been caused to some of the persons. He further stated that if at all this Court declares Article 2-A of the STA, 1973 ultra vires of the Constitution, in respect of those employees whose service conditions are not protected by statutory provisions, they would be governed by the rule of master and servant, a phenomena which has already undergone radical changes, because the intent of the Constitution is to establish an egalitarian society, where all citizens are equal and there should be no concept of master and servant between and employee and employer. Reference in this behalf has been made by him to R v. Civil Service Appeal Board [1988] 3 All E.R. 686 and Gunton v. London Borough of Richmond upon Thames [1980] 3 All E.R. 577.
In this behalf it may be noted that in Farasat Hussain's case (ibid), while placing reliance on Zahir Ullah's case, it was held that "the concept of master and servant has undergone a radical change during the last couple of years mainly due to insertion of Section 2-A in Service Tribunals Act, 1973". It may be noted that in the said judgment as well, this Court had not examined the vires of Section 2-A of the STA, 1973, therefore, the argument of the learned counsel that this phenomena cannot be re-introduced, has no substance because if Section 2-A is declared to be un-constitutional then position prior to its insertion shall revive. So far as the judgments from other jurisdictions, relied upon by the learned counsel are concerned, relevance of the same also depends upon the conclusion, which shall be drawn in respect of constitutionality of Section 2-A of the STA, 1973.
The threadbare discussion on the subject persuades us to hold:-
Section 2-A of the STA, 1973 is, partially, ultra vires of Articles 240 and 260 of the Constitution, to the extent of the category of employees, whose terms and conditions of service have not been determined by the Federal Legislature and by a deeming clause they cannot be treated civil servants as defined under Section 2(1)(b) of the CSA, 1973 and they are not engaged in the affairs of the Federation.
Section 2-A of the STA, 1973 cannot be enforced in the absence of amendment in the definition of the civil servant under Section 2(1)(b) of the CSA, 1973.
The cases of the employees under Section 2-A, STA, 1973, who do not fall within the definition of civil servant as defined in Section 2(1)(b) of the CSA, shall have no remedy before the Service Tribunal, functioning under Article 212 of the Constitution and they would be free to avail appropriate remedy.
Now the question is as to what would be the effect of this judgment on the cases pending before this Court and Federal Service Tribunal. In this behalf it may be noted that following the rule of past and closed transactions, laid down in the case of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), it is directed as follows:--
(a) The cases which have been decided finally by this Court in exercise of jurisdiction under Article 212(3) of the Constitution shall not be opened and if any Review Petition, Misc. Application or Contempt Application filed against the judgment is pending, it shall be heard independently and shall not be affected by the ratio of this judgment.
(b) The proceedings instituted either by an employee or by the an employer, pending before this Court, against the judgment of the Service Tribunal, not cover by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of Section 2-A of the STA, 1973.
(c) The cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period.
(d) The cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings, which ever is earlier.
(e) The Service Tribunal shall decide pending cases under Section 2-A of the STA, 1973 in view of the above observations. However, if any of the cases is covered by clause `c' (ibid), a period of 90 days shall be allowed to aggrieved party to approach the competent forum for the redressal of its grievance.
(T.S. Faisal)
PLJ 2006 SC 1373 [Appellate Jurisdiction]
Present: Khalil-ur-Rehman Ramday & Raja Fayyaz Ahmed, JJ.
MUHAMMAD MANSHA--Petitioner
versus
S.H.O., P.S. CITY CHINIOT, DISTRICT JHANG etc.--Respondents
C.P. No. 1327-L of 2005, decided on 9.3.2006.
(On appeal from the order dated 31.5.2005 of the Lahore High Court, Lahore, passed in Writ Petition No. 4470 of 2005).
(i) Constitution of Pakistan, 1973--
----Art. 185(3)--Criminal Procedure Code, (V of 1898), S. 561-A--Pakistan Penal Code, (XLV of 1860), S. 379/447/148/149--Quashment of FIR--FIR was quashed by High Court on the basis of opinion of A.S.I. and report of local commission--Assailed--Validity--No extra ordinary remedy existed which could have permitted the High Court to make a departure from the normal mandatory procedure prescribed by law for trial of the cases that the material which had weighed with the High Court in reaching the impugned conclusion was no material in the eyes of law which could have been used to determine the guilt or innocence of an accused--Petition converted into appeal. [Pp. 1375 & 1376] C & D
(ii) Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Constitution of Pakistan, 1973, Arts. 185(3) & 199--Quashment of criminal case--An extra-ordinary remedy--Determination--Resort to the provisions of S. 561-A Cr.P.C. or to the provision of Art. 199 of the Constitution seeking quashment of a criminal case was an extra-ordinary remedy which could be invoked in extra ordinary circumstances and provision could never be exploited as a substitute for the prescribed trial or to decide the question of guilt or innocence of an accused on the basis of material which was not admissible in terms of Qanun-e-Shahadat Order, 1984. [P. 1375] A
(iii) Constitution of Pakistan, 1973--
----Art. 185(3)--Report of commission--Evidence in a criminal trial--Held: Such report could not be acted upon without an opportunity to the parties to raise objections in accordance with law and in any case such a report could not be considered as evidence in a criminal trial unless same was brought on record at such trial in accordance with law.
[P. 1375] B
Malik Muhammad Imtiaz Mahl, ASC with Haji Muhammad Rafi Siddiqui, AOR for Petitioner.
Nemo for Respondents Nos. 1, 2 & 4.
Mr. M. Taqi Khan, ASC with Mr. A. H. Masood, AOR for Respondent No. 3.
Date of hearing : 9.3.2006.
Judgment
Khalil-ur-Rehman Ramday, J.--Mansha petitioner had alleged through FIR No. 633 dated 10.12.2004 of Police Station City Chiniot registered for the alleged commission of offences punishable under Sections 379/447/148 and 149 of Pakistan Penal Code that he had purchased, through a sale-deed dated 28.3.2003, twenty kanals of land in Batakianwala of Tehsil Chiniot for a consideration of Rs. 1050000/-; that possession of the said land had also been delivered to him whereafter he even built a residential house thereon and started living there; that on 18.3.2004, the nominated accused persons trespassed into the said land after arming themselves with fire-arm weapons and dispossessed him and his family from the said land and even looted away their house-hold articles and other property.
One of the accused persons, namely, Majid, rushed to the Lahore High Court through W.P. No. 4470 of 2005 praying for quashment of the said FIR on the ground that on an application submitted by Mansha complainant seeking registration of this FIR, it had been reported by one Muhammad Akram S.I. that though the complainant that purchased the land in question from the mother of the said accused writ-petitioner yet the possession of the same had not been delivered to him; that like-wise a Local Commission appointed by a learned Civil Judge seized of a suit filed by Mansha complainant had also reported that the possession of the said land was not with the complainant and that in the circumstances since the complainant was not in possession, therefore, there was no question of the accused persons trespassing into the same and dispossessing him from the said land.
Relying upon the said opinion of Akram S.I. and on the said alleged report of a Local Commission, the learned Judge in Chamber, quashed the said FIR through the impugned judgment dated 31.5.2005.
Despite our best efforts for the purpose, we have not been able to persuade ourselves to approve either of the manner in which the FIR in question had been quashed or even the reasons which had led His lordship to the said end.
This Court has been repeatedly reminding all concerned that determination of the correctness or falsity of the allegations levelled against an accused person; the consequent determination of the guilt or innocence of such an accused person and the ultimate conclusion regarding his conviction or acquittal, was an obligation cast on the Court prescribed by the Code of Criminal Procedure for the purpose on the basis of legal evidence led at the trial after a proper opportunity to both the parties to plead their causes. It is a principle too well established by now that a report to the provisions of Section 561-A Cr.P.C. or to the provisions of Article 199 of the Constitution seeking quashment of a criminal case was an extra-ordinary remedy which could be invoked only in extra-ordinary circumstances and the said provisions could never be exploited as a substitute for the prescribed trial or to decide the question of guilt or innocence of an accused on the basis of material which was not admissible in terms of Qanun-e-Shahadat Order of 1984.
No such extra-ordinary circumstances could be indicated to us which could have permitted the learned High Court to deviate from the normal course of law and to quash the FIR by exercising the extra-ordinary Constitutional remedy under Article 199 of the Constitution.
Secondly, as has been noticed above, what had weighed with the learned High Court in so doing, on merits, was a report allegedly submitted by one Muhammad Akram S.I. of Police Station City Chiniot which report had been made by him in pursuance of an order of the learned Sessions Judge under Section 22-A of the Cr.P.C. in pursuance of an application made to him seeking registration of the case. By no stretch of imagination could such a report be held to be legal evidence at a trial and most which the either party could have done at the trial was to produce the said Muhammad Akram S.I. as a witness either of the prosecution or of the defence who could then have been subjected to cross-examination which obviously was not done and could not have been done through a summary resolution of the issue pursuant to a writ petition filed in the High Court. The learned High Court was thus in error in this connection, firstly, because the said report was not legal evidence and was in fact not even admissible in evidence being opinion of a person who was not an expert and secondly because no evidence was available with His lordship regarding the hotly contested question of possession and dispossession vis-a-vis the land in question.
Similar was the position of an alleged report of Local Commission submitted in a civil suit pending between the parties. Suffice it again to say that such a report could not be acted upon without an opportunity to the parties to raise objections thereto in accordance with law and in any case such a report could not be considered as evidence in a criminal trial unless the same was brought on record at such a trial in accordance with law.
Having thus examined all aspects of the matter we find, firstly, that no extra-ordinary circumstances existed which could have permitted the learned High Court to make a departure from the normal mandatory procedure prescribed by law for trial of cases and, secondly, that the material which had weighed with the learned High Court in reaching the impugned conclusion was no material in the eyes of law which could have been used to determine the guilt or innocence of an accused person.
Consequently, this petition is converted into an appeal which is allowed as a result whereof the impugned judgment dated 31.5.2005 passed by the Lahore High Court in Writ Petition No. 4470 of 2005 is set aside. The S.H.O. of Police Station City Chiniot shall now feel free to proceed with the said FIR in accordance with.
(Rafaqat Ali Sohal) Appeal allowed.
PLJ 2006 SC 1376 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ; Abdul Hameed Dogar & Saiyed Saeed Ashhad, JJ.
COLLECTOR OF CUSTOMS, FAISALABAD and another--Appellants
versus
SHAMSUL ANWAR KHAN and others--Respondents
Civil Appeals Nos. 265 to 272 of 2001, decided on 18.4.2006.
(On appeal from the order dated 29.9.2000 of the Lahore High Courts, Lahore, in Review Applications Nos. 83, 84, 85, 86, 87, 88, 89 and 90 of 2000).
Constitution of Pakistan, 1973--
----Arts. 185 & 199--Customs Act, (IV of 1969), Ss. 30, 31-A & 82--Withdrawal of concession by appellants through, SRO--Constitutional petition was dismissed--Review was accepted, assailed--Determination--Date for determining rate and amount of duty applicable to any imported goods shall be the rate and amount chargeable on date of submission of the bill of entry to concerned authority--Respondents were not entitled to the exemption of custom duty--Impugned order being illegal and without jurisdiction was set-aside--Appeals allowed. [P. 1380] A
Mr. Jawahar A. Naqvi, ASC, for Appellants (in C.As.).
Mr. Ihsanul Haq Chaudhry, ASC for Respondents (in all C.As.).
Date of hearing : 18.4.2006.
Judgment
Abdul Hameed Dogar, J.--These appeals by leave of this Court arise out of order dated 29.9.2000 passed by a learned Judge in Chambers of the Lahore High Court, Lahore, whereby Review Applications Nos. 83/2000, 84/2000, 85/2000, 86/2000, 87/2000, 88/2000, 89/2000 and 90/2000 filed by respondents and others were allowed and order dated 21.6.2000 passed in Writ Petitions Nos. 10556/2000, 10557/2000, 10558/2000, 10559/2000, 10560/2000, 11091/2000, 11092/2000, 11093/2000, 11094/2000, 11095/2000, 11096/2000, 11097/2000, 11098/2000, 11099/2000, 11100/2000, 11324/2000, 11325/2000, 11326/2000 and 11327/2000 was reversed.
Briefly, stated the facts of the case leading to the filing of instant appeals are that Federal Government vide SRO No. 898(1)/99 dated 4th of August, 1999, launched a scheme with a view to provide incentive and save Foreign Exchange in the Import Policy Order, 1999, wherein it was provided that import of used machinery/equipments shall be released without payment of any custom duty or sales tax with the only stipulation that such machinery had to be imported between 1st of July, 1999 to 30th of June, 2000. Respondents the Pakistanis living abroad in all the above appeals imported used dump trucks from Singapore Port, Osaka Japan Port, Dubai U.A.E. Port, Yokohama Japan Port and Tokyo Japan Port for Faisalabad via Karachi which reached the port on 2.3.2000. The appellants amended Table-III of the Finance Act, 1999 through SRO No. 116(1) 2000 dated 7.3.2000 whereby withdrew the above-mentioned concession and asked the respondents to pay full payment of the custom duty and in case of non-payment of the same, goods imported by them were to be auctioned as they filed their bill of entry on 9.3.2000. Notice under Section 82 of the Customs Act, 1969 was also issued against the respondents. The above act of the appellants was challenged before the learned High Court through Writ Petitions mentioned above by the respondents which were dismissed on 21.6.2000.
Feeling aggrieved, respondents filed above-mentioned review applications before the same learned Judge of the Lahore High Court which were allowed vide impugned order dated 29.9.2000.
On 12.1.2001 while hearing the petitions leave to appeal, this Court granted leave to consider the following:
"Considering the conflicting view in the judgment delivered by this Court in CP No. 2427-L of 2000 Mahmood A. Sheikh v. The Federation of Pakistan and others) and to render the authoritative opinion leave to appeal is granted in all these cases."
We have heard M. Mr. Jawahar A. Naqvi, learned counsel for the appellants and Mr. Ihsanul Haq Chaudhry, learned counsel for respondents and have gone through the record and the proceedings of the case in minute particulars.
Learned counsel for the appellants vehemently objected to the impugned order and contended that the learned Judge had already dismissed the writ petitions of the respondents by an exhaustive order, but allowed review applications in short slip manner without having any material or any error apparent on the face of the record. According to Section 30 of Customs Act, the rate of the duty is to be charged on the date of filing of bill of entry and not on the date on which consignment landed at the Port in Pakistan. According to him, the learned Judge has committed serious error in holding that a discriminating treatment was made by the appellants and the machinery which had reached in Pakistan before 7.3.2000 was liable to be cleared without payment of any custom duty. According to him, as the learned Judge himself in his earlier order found this contention as devoid of force and dismissed the claim of the respondents, as such impugned order is not sustainable in law. Even provisions of Sections 123, 30 and 31-A of the Customs Act have wrongly been constructed by the learned Judge in his impugned order, as such it being illegal ab initio and without jurisdiction is liable to be set aside.
On the other side, Mr. Ihsanul Haq Chaudhry, learned counsel for the respondents contended that the impugned order is well in accordance with law and was passed in a proper manner. According to him, respondents were entitled to the concession/exemption under the earlier SRO as they imported Dump Trucks under the assurance/guarantee of the said SRO, thus cannot be deprived of vested right created in their favour. He contended that SRO No. 116(1)/2000 dated 7.3.2000 being an executive act issued in exercise of delegated powers, could not be made applicable retrospectively, and (sic) did not affect the contract/agreement for sale already entered into, goods shipped to Pakistan and those arrived in Pakistan within the period fixed in the Finance Act, 1999.
As regards leave granting order, it would be appropriate to clarify firstly, that there was obviously no conflicting view in the judgment delivered by this Court in Civil Petition No. 2427-L of 2000 Muhmood A. Sheikh v. The Federation of Pakistan and others. On its perusal, it is found that a Full Bench of this Court delivered titled judgment on the issue in controversy and dismissed the petition and refused leave to appeal. It was held that Notification No. SRO 116(1) of 2000 dated 7.3.2000 referred to above was valid and was made by virtue of amendment of Section 18 of the Finance Act, 1999 whereby entries in column III had been omitted and the custom duty became leviable. In this case, though it was contended that by virtue of the amendment in Section 18 of the Finance Act, 1999 entries in column III had been omitted and the custom duty became leviable, but the respondents had shipped their goods before the issuance of the Notification amending the Finance Act, therefore, they were not liable to pay any duty. The said contention was found devoid of force in view of Section 31-A of the Customs Act which provides for the payment of duty notwithstanding any vested right which may have been created in favour of any person on account of opening of the letter of credit or having entered into any other contract. It was also held in the said judgment that Section 31-A of the Customs Act clearly takes away vested rights and the legislature is competent to take away such right under the law.
At this juncture, it would be appropriate to refer conflicting findings of learned Judge in Chambers made in both the orders passed by him about the release of goods imported by the respondents.
Para 4 of order dated: 21.6.2000:
"I am not impressed by this contention of the learned counsel which cannot be accepted in view of the clear language of Section 31-A read with Sections 30 and 31 of the Customs Act, 1969 which ordains that for the purpose of Sections 30 and 31 of the Act, the rate of duty applicable shall be the duty in force on the day when the bill of entry is filed, even in cases where contracts and agreements for the sale of goods have been arrived at before the exemption was withdrawn or the letter of credits had been opened in that respect."
Para 3 of the impugned order:
"The contention appears to be well-founded. The petitioner is entitled to have the machinery cleared, which had reached Pakistan before the Notification in question was withdrawn on 7.3.2000 in accordance with the law then in force."
On perusal, former order seems to be more appropriate, elaborate and in accordance with law whereas the latter is not only passed in short slip manner but is also non-speaking, illegal, ab initio and without any justification.
This Court in the case of Anoud Power Generation Limited and others v. Federation of Pakistan and others (PLD 2001 SC 35) while dealing with the similar aspect of the matter has held as under:
"Thus we are of the opinion that as the petitioner-companies who have opened L.Cs. after the issuance of amended Notification No. SRO 584(I)/95 dated 1st July, 1995 and perhaps have also submitted the Bills of Entry are not entitled for the benefit of original Notification SRO No. 279(I)/94 dated 2nd April, 1994 because they were not placed in similar circumstances qua the power generating companies who have fulfilled the conditions laid down in the un-amended notification and have also filed Letters of Credits and Bills of Entry prior to its amendment. Moreover in view of above discussion the powers of competent authority cannot be curtailed and a notification once issued cannot be allowed to remain intact for all times to come notwithstanding the fact that the circumstances had changed and it is not possible for the Government to extend the benefit of exemption of duty to the companies who have not yet decided to install projects of power generation in the country or intending to do so in new circumstances prevailing after the date of issuance of amended notification after 1st July, 1995."
Admittedly, an exemption from the payment of customs and sales tax was allowed by the Government vide SRO No. 898(1)/99 dated 4th August, 1999 to import machinery to Pakistan. The respondents while availing this concession brought the goods from above-mentioned destinations which reached Karachi Port on 2.3.2000. In the meanwhile Government withdrew the above concession vide SRO No. 116(1)/2000 dated 7.3.2000 and directed the respondents to pay full payment of the customs duty and declared that in case of non-payment of the same, the goods imported by them would be auctioned. As per record respondents filed bill on entry on 9.3.2000 i.e. after the withdrawal of the above concession/exemption. In view of provisions as ordained in Sections 30, 31 and 31-A of the Act and the case law referred (supra), the date for determining rate and amount of duty applicable to any imported goods shall be the rate and amount chargeable on the date of the submission of the bill of entry to concerned authority. Thus the respondents are not entitled to the above mentioned exemption.
Accordingly, the impugned order being illegal, ab initio and without jurisdiction is set aside and the appeals are allowed with no order as to costs.
(T.S. Faisal) Appeals allowed.
PLJ 2006 SC 1380 [Appellate Jurisdiction]
Present: Javed Iqbal & Hamid Ali Mirza, JJ.
ABDUL AZIZ BUTT--Appellant
versus
FEDERATION OF PAKISTAN, etc.--Respondents
Civil Appeal No. 435 of 2002, decided on 18.4.2006.
(On appeal from the judgment dated 11.7.2000 of the Federal Service Tribunal, Islamabad, passed in Appeal No. 235(R) CS of 2000).
Constitution of Pakistan, 1973--
----Art. 185, r/w Art. 486 of CSR--Service matter--Whether special pay can be incorporated toward pension of civil servant--Question of--Service appeal filed by civil servant before Federal Service Tribunal was dismissed--Assailed--Pension of a civil servant shall be calculated at existing rate on last pay drawn, provided the post has been held by civil servant on a regular basis--Appellant had never held additional charge on regular basis--No illegality was pointed out by appellant warranting interference in impugned order--Appeal was dismissed. [P. 1383] A
Appellant in person.
Mr. Nasir Saeed Sheikh, DAG Ch. Muhammad Akram, AOR and Ch. Akhtar Ali, AOR for Respondents.
Date of hearing: 18.4.2006.
Judgment
Javed Iqbal, J.--This appeal with leave of the Court is directed against the judgment dated 11.7.2000 whereby the appeal preferred on behalf of appellant has been dismissed.
"The question whether full special pay allowed to a civil servant, while holding additional charge of higher post, is to be treated as emoluments for the purpose of pension and interpretation of Article 486 CSR made by Ministry of Finance and Auditor General of Pakistan vide their letters dated 17.7.1986 and 9.9.1996 respectively, is correct, is a question of law of public importance as it will have the consequence of affecting all the civil servants in general, therefore, leave is granted to consider the same."
Heard Abdul Aziz Butt (petitioner) in person who mainly argued that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is urged with vehemence that Art. 486 of the CSR has been misinterpreted and misconstrued by the learned Service Tribunal causing serious prejudice. It is next contended that no deletion, insertion or amendment could have been made in Article 486 of the CSR either by the Finance Division or by the Auditor General of Pakistan to the disadvantage of the appellant. It is also pointed out that no gazette notification amending Article 486 of the CSR was ever issued and the Finance Division's O.M. dated 17.7.1986 duly clarified by the Auditor General of Pakistan by means of letter dated 9.9.1996 cannot be equated to that of an amendment. It is also contended that the benefit given to Government employees by virtue of the provisions as contained in Article 486 of the CSR cannot be curtailed.
Mr. Nasir Saeed Sheikh, learned Deputy Attorney General appeared on behalf of the Federation of Pakistan and strenuously controverted the view point as canvassed by the appellant and supported the judgment impugned for the reasons enumerated therein with the further submission that the additional charge was held by the appellant on current charge basis just for a short span of time i.e. three months and twenty five days and therefore, the special pay amounting to Rs. 800/- cannot be incorporated towards his pension forever. It is also pointed out that the policy as famed by the Finance Division and clarified by the Auditor General of Pakistan is in consonance with Article 486 of the CSR. It is also mentioned that the appellant had opted for his pay pursuant to letter No. F. 10(4) Reg(6)/86, dated 1.7.1986 and no `U' could be taken by the appellant at this belated stage.
We have carefully examined the respective contentions as agitated on behalf of the appellant in the light of relevant provisions of law and rules made thereunder. The point which needs determination is whether full special pay allowed to civil servant while holding additional charge of higher post is to be treated as emolument for the purpose of pension or otherwise? A careful scrutiny of the entire record would reveal that the formula which has been adopted i.e. that the special pay drawn, the period will be divided by twelve months to get the average determination for the purpose of pension, is conformity with Article 486 of the CSR and O.M. No. F. 10(4)-Reg(6)/86, dated 17.7.1986 of Finance Division (Regulation Wing-II) and the letter of Auditor General of Pakistan Bearing No. 391-Reg-II/Pen/1-94C, dated 9.9.1996. It is worth mentioning that the Finance Division, Government of Pakistan is competent to clarify or interpret Art. 486 of the CSR being the Competent Division. The clarification as made by the Finance Division is not in contradiction of the provisions as contained in Article 486 of the CSR. Besides that the Auditor General of Pakistan has duly clarified that special pay drawn during previous twelve months will be averaged out and counted towards pensionable emoluments. The significant feature of the case is that the appellant had held the current charge of higher post for a short span of time i.e. three months and twenty five days and therefore, special pay attached with the higher post cannot be counted towards his pension as it does not appeal to logic and reason. It may be kept in view that the appellant was holding the charge of higher post on current charge basis and he was never promoted against the higher post. Had he been promoted the position would have been different.
We have also examined letter No. F. 10(4)-Reg(6)/86, dated 1.7.1986 which is reproduced herein below for ready reference:--
"No. F. 10(4)-Reg(6)/86
Government of Pakistan
Finance Division
(Regulation Wing-II)
Islamabad, the Ist July, 1986.
OFFICE MEMORANDUM
Subject:--Culculation of Pension on last pay/emoluments drawn.
The undersigned is directed to state that under the existing rules, pension is calculated on the average emoluments drawn during the last 36/12 months of service. The President has been pleased to decide that w.e.f. 1.7.1986 the pension of a civil servant who shall retire on or after this date shall be calculated at the existing rate on last pay/emoluments drawn provided the post has been held by him on a regular basis. Otherwise, pension shall be calculated on average emoluments as admissible prior to the issue of this Office Memorandum.
(Ikram H. Ghauri)
Section Officer."
"OPTION CERTIFICATE
In terms of Finance Division (Regulation Wing-II) O.M. No. F. 10(4)-Reg(6)/86 dated 1st July 86, I opt for calculation of my pension on the basis of last pay/emoluments.
In pursuance of Finance Division (Regulation Wing-II) O.M. No. F. 10(3)-Reg(6)/86 (II), dated Ist July, 86, I opt for commutation of 50% of my gross pension.
Sd/- Signature __________
Name & Designation No. 052
Abdul Aziz Butt
Branch/Dte G-II (CIV)
Dated July 1990, Countersignature.
Sd/-
G-III (Civ).
(Munsif Khan)"
The learned Federal Service Tribunal has examined the controversy with diligent application of mind by scrutinizing the entire record in depth in the judgment impugned, relevant portion whereof is reproduced herein below for ready reference:--
"5. The appellant in substance wants that this Tribunal should strike down the above mentioned letters dated 17.7.1986 and 9.9.1996 and under Article 486 CSR full amount of Rs. 800/- drawn as Special pay from 26.6.1990 to 14.10.1990 be included in the pay drawn by the appellant for the purpose of payment of pension and commutation. We are unable to strike down the aforementioned letters for the reasons that in the O.M. dated 17.7.1986 issued by the Finance Division, Regulation Wing, it is clearly laid down that "such special pays drawn will be divided by 12 months for ascertaining the average in terms of Article 486 CSR." This letter is a letter of Government of Pakistan, Finance Division, Regulation-II which is referred before for the sake of convenience. The further letter dated 9.9.1996 of the office of the Auditor General of Pakistan is also referred for the sake of convenience. The above letters clearly pointed out that special pay drawn during the previous period will be divided by 12 months for ascertaining the average and will be counted towards pension emoluments. We do not find any inconsistency with the above letters and Article 486 CSR and, therefore, the appeal of the appellant for including the full Special Pay of Rs. 800/- is misconceived and the appeal is dismissed."
No illegality or irregularity could be pointed out by the appellant warranting interference in the judgment impugned. The appeal being devoid of merit is dismissed.
(T.S.Faisal) Appeal dismissed.
PLJ 2006 SC 1384 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ; Mian Shakirullah Jan & Syed Jamshed Ali, JJ.
SYED ISHFAQ HUSSAIN SHAH and another--Appellants
versus
DISTRICT JUDGE WITH THE POWERS OF DISTRICT RETURNING OFFICER, LAHORE and 3 others--Respondents
C.A. Nos. 975 & 976-L of 2005, in C.P. Nos. 1588 & 1589-L of 2005, decided on 1.6..2006.
(Against the order dated 10.8.2005 passed by Lahore High Court, Lahore in W.Ps. Nos. 14373 & 14367 of 2005).
(i) Constitution of Pakistan, 1973--
----Art. 199--Punjab Local Government Ordinance, (XIII of 2001), S. 163--Determination of disqualification--Scope--Question of disqualification of a candidate has to be determined only with reference to the Punjab Local Government Ordinance (XIII of 2001) and Punjab Local Government Elections Rules, 2005--Validity--Question as to whether on the date of scrutiny of nomination papers a candidate was disqualified, will have to be determined only with reference to the provisions of the Ordinance and Rules and reference to any other law and for that matter even to West Pakistan General Clauses Act will not be relevant. [P. 1390] E
(ii) Punjab Local Government Ordinance, 2001 (XIII of 2001)--
----S. 163--Constitution of Pakistan, 1973, Art. 199--Period of disqualification--Four years disqualification to be started from notification of recall--Held: Four years disqualifying period started from the notification of the recall as a Nazim or Naib Nazim and such a disqualification would not be eligible to contest any election or bye-election existed on the statute book. [P. 1388] B
(iii) Punjab Local Government Ordinance, 2001 (XIII of 2001)--
----S. 163--West Pakistan General Clauses Act, 1956, S. 4--Ineligibility continues to be attached even after omission of Section 163--Validity--Disqualification incurred under the omitted provision will not subsist if the intention of legislature was otherwise--Right to elect or be elected--Held: Legislature created right, it abridged in the form of Section 163 and removed the embargo by deleting Section 163--This intention is discoverable by the fact that for future elections, there will not be any such disqualification. [P. 1389] C & D
(iv) Punjab Local Government Ordinance, 2001 (XIII of 2001)--
----S. 163--Constitution of Pakistan, 1973, Art. 199--Re-election contemplated--Appellant contended that re-election contemplated by Section 163 of Ordinance, (XIII of 2001), is in fact bye-election for the same office, from which appellant was removed and it will not apply to any future election--Validity--Interpretation can neither be reasonably on S. 163 nor it could possibly be the intention of the law maker because period of four years specified in the Section 163 would become meaningless. [P. 1388] A
(v) Punjab Local Government Ordinance, 2001 (XIII of 2001)--
----Ss. 163 & 152--Nature of ineligibility--Nature of ineligibility under Section 163 is of temporary nature--Validity--Object of the legislature in providing ineligibility under Section 163 appeared to be temporary, otherwise, the qualifications and disqualifications, which are permanent in nature, have been clubbed together by the legislature in the form of Section 152 of Local Government Ordinance--Effect of temporary legislative measure--Scope--A temporary legislative measure does not have the same effect as a permanent one--Whether omission/deletion of temporary measure attract the provisions of Section 4 of General Clauses Act--Held: Omission or deletion of temporary measure does not normally attract the provisions of Section 4 General Clauses Act. [P. 1390] F
(vi) Punjab Local Government Ordinance, 2001 (XIII of 2001)--
----S. 163--Penal provision to be construed in favour of candidate where it is doubtful--Held : Provisions of Section 163 being penal in nature has to be construed in favour of a candidate in case of doubt. [P. 1390] G
(vii) Punjab Local Government Ordinance, 2001 (XIII of 2001)--
----S. 163--West Pakistan General Clauses Act, (VI of 1956) S. 4--Temporary nature of disqualification--Disqualification u/S. 163 is of temporary nature and after its omission appellant does not carry it with him--Scope--Object of Section 4 of General Clauses Act was to keep in tact the rights and liabilities accrued under repealed or omitted legislation--In case of an election, no right or liability of an individual is likely to be jeopardized--Held: Keeping in view the relevant considerations, the disqualification contemplated by S. 163 of Ordinance was temporary in nature and with its omission, appellant did not carry it with him on the date of scrutiny of nomination papers. [Pp. 1390 & 1391] H
PLJ 2005 Lahore 275, PLD 1964 SC 266, PLD 2002 SC 757, PLD 1970 SC 514, 1999 SCMR 2213 ref.
Dr. Mohy-ud-Din Qazi, ASC for Appellants (in both cases).
Mr. Shahzad Shaukat, ASC for Respondent No. 3 (in both cases).
Date of hearing : 12.4.2006.
Order
Syed Jamshed Ali, J.--The nomination papers of the two appellants for the office of Nazim and Naib Nazim respectively of Union Council No. 86, Lahore were accepted by the Returning Officer vide order dated 30.7.2005. Appeals filed by Respondents Nos. 3 & 4 were dismissed by the learned District Returning Officer vide order dated 3.8.2005. The objection against the candidature of the appellants was that Syed Ishfaq Hussain Shah, Appellant No. 1, having been recalled as Naib Nazim under Section 92 of the Punjab Local Government Ordinance, (No. XIII) 2001 on 31.7.2003 stood disqualified for four years under Section 163 of the aforesaid Ordinance.
Respondents Nos. 3 & 4 challenged the orders passed by the Returning Officer and District Returning Officer in Writ Petition No. 14373 of 2005. The objection of Respondents Nos. 3 & 4 was sustained and nomination papers of appellants were rejected. In Civil Appeal No. 976/2005, the facts are identical except that the objector/writ petitioner in the said case was Zahid Mehmood Chaudhry, Respondent No. 3.
Leave was granted by this Court, inter alia, to examine:--
(i) "As to whether in pursuance of Section 163 of the Punjab Local Government Ordinance, 2000 (before amendment) petitioners are eligible to contest the election because according to learned counsel they are debarred to contest re-election and not General Elections of Local Councils."
(ii) "As to whether despite omitting/repealing the provision of Section 163 of the Punjab Local Government Ordinance, 2001, the petitioner shall remain debarred to contest election on account of the effect of recalling."
(i) That Appellant No. 1 was elected under the Punjab Local Government Election Ordinance, 2000 (No. V of 2000) which did not provide for any provision for recall of a Nazim or Naib Nazim. Therefore, the notification dated 31.7.2003 of Appellant No. 1 of recall did not render him disqualified.
(ii) That the effect of recall of the Appellant No. 1 was re-election under Section 163 of Ordinance No. XIII of 2001 which only meant bye-election to the office of Naib Nazim and not any fresh election.
(iii) That on the date of the submissions of the nomination papers on 25.7.2005 Section 163 of Ordinance No. XIII of 2001 had already been omitted by Punjab Local Government, Amendment Act (No. X of 2005) promulgated on 9.7.2005 and, therefore, appellants could not be disqualified. He maintained that, in fact, Section 4 of the West Pakistan General Clauses Act was not applicable in the facts and circumstances of the case.
Mr. Shahzad Shaukat, ASC appearing for the successful writ petitioners, contended that under Section 196 (3), of Ordinance No. XIII of 2001, elections held under Punjab Local Government Election Ordinance, 2000 are deemed to have been held under the Punjab Ordinance, No. XIII of 2001 and, therefore, all the provisions of the later Ordinance being applicable, the recall of the Appellant No. 1 clearly entailed a disqualification for four years. He relied on the reasoning of the learned High Court.
We have considered the submissions made by the learned counsel for the parties. The view of the learned High Court was that notwithstanding omission of Section 163, Appellant No. 1, carried with him the disqualification on account of the operation of Section 4 of the West Pakistan General Clauses Act, 1956.
We have carefully applied ourselves to the legal issues raised before us. As far as first contention of the learned counsel for the appellants is concerned, it may be noted that by virtue of Section 196(3) of the Punjab Ordinance, No. XIII of 2001, election held under Punjab Ordinance No. V of 2000, shall be deemed to have been held under Ordinance No. XIII of 2001. The relevant provision of the said Ordinance is reproduced herein below for facility of reference.
"Section 196 (3): Not withstanding the repeal of Punjab Local Elections Ordinance, 2000 (V of 2000), all Nazims, Naib Nazims and members of the Local Governments elected under the said Ordinance shall be deemed to have been elected under this Ordinance and shall continue to hold their respective offices till the completion of their terms unless earlier removed, resigned or recalled under this Ordinance."
Therefore, the contention that there was no provision for recall of a Nazim or a Naib Nazim under the aforesaid Ordinance of 2000 and therefore, Appellant No. 1, did not incur any disqualification under Ordinance No. XIII of 2001 has no force.
8A. The contention that has attracted our attention is as to whether ineligibility of Appellant No. 1 will continue to be attached to him notwithstanding omission of Section 163 from the Punjab Ordinance, 2001 and whether Section 4 of the West Pakistan General Clauses Act, 1956, was applicable. It will be appropriate to reproduce Section 4 of the aforesaid Act.
"4. Effect of appeal. (1) Where this Act or any other West Pakistan Act repeals any enactment then, unless a different intention appears, the repeal, shall not:--
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed.
(2) The provisions of sub-section (1) shall apply on the expiry or withdrawal of any Ordinance promulgated by the Governor as if it had been repealed by a West Pakistan Act"
"14(3). The Returning Officer, may either suo moto or upon any objection, conduct such summary enquiry as the may think fit an reject a nomination paper if he is satisfied that--
(i) the candidate is not qualified to be elected as member;
(ii) ......................................................
(iii) ......................................................
(iv) ......................................................"
It shows that the disqualification in presenti (emphasis supplied) entails rejection of nomination papers and, therefore, the question as to whether on the date of scrutiny of nomination papers a candidate was disqualified, will have to be determine only with reference to the provisions of the Punjab Ordinance No. XIII of 2001, the Punjab Local Government Elections Rules, 2005 and reference to any other law and for the matter even to the West Pakistan General Clauses Act will not be relevant.
Another aspect of the matter which needs to be noted is that the object of the legislature in providing ineligibility under Section 163 appeared to be temporary, otherwise, the qualifications and disqualifications, which are permanent in nature, have been clubbed together by the legislature in the form of Section 152 of the Ordinance XIII of 2001. A temporary legislature measure does not have the same effect as a permanent one. The omission/deletion of a temporary measure does not normally attract the provisions of Section 4 of the West Pakistan General Clauses Act (which is in pari materia with Section 6 of the General Clauses Act). In fact, the Returning Officer and the Appellate Authority, on a simple and straightforward view of the laws in force, held that on the date of the scrutiny of the nomination papers the disqualification was no more on the statute book to be enforced. Another fact to be noted is that if the intention of the legislature was that the disqualification contemplated by Section 163 will be carried by the person, it could have been so indicated while omitting Section 163. We have also kept in mind that the provision of Section 163 being penal in nature has to be construed in favour of a candidate in case of doubt.
We will also like to observe that a recall motion betrays lack of confidence of the house expressed through the electorate. After the term of the Local Council comes to an end, the continued disqualification attached to a person would mean that he will not command the confidence of the new house as a result of fresh election. This interpretation, on the face of it, is absurd. In fact, to disqualify such a candidate will amount to even disenfranchising the electorate. The object of Section 4 of the West Pakistan General Clauses Act was to keep in tact the rights and liabilities accrued under repealed or omitted legislation. In case of an election, no right or liability of an individual is likely to be jeopardized. Keeping in view the relevant considerations, we are of the opinion that the disqualification contemplated by Section 163 of Ordinance XIII of 2001 was temporary in nature and with its omission, Appellant No. 1 did not carry it with him on the date of scrutiny of nomination papers.
Before we part with this judgment, we deem it appropriate to examine the judgments relied upon by the learned High Court while setting aside the orders passed by the Returning Officer and the appellate authority. In the case of Saeed Ahmad vs. The State (PLD 1964 SC 266) one Saeed Ahmed was convicted for offering bribe to a Police Officer under Section 165-A of the PPC. During pendency of the appeal before the High Court Section 165-B, was added to the Pakistan Penal Code on 6.6.1962 whereby a person giving bribe was exempted from the operation of Section 165-A under certain circumstances. The convict sought protection of the aforesaid section. The plea was repelled. In Dr. Mukhtar Hamid Shah and others vs. Government of the Punjab and others (PLD 2002 SC 757), tax was levied on the hospitals under Sections 8 and 9 of the Punjab Finance Act, 1996 w.e.f. 1.7.96. The aforesaid sections were deleted by the Punjab Finance Ordinance, 2000. The prayer before the High Court and this Court was that because the aforesaid provisions were deleted it was not a case of repeal to attract the provisions of West Pakistan General Clauses Act and therefore from 1997 upto 2000, no tax being payable, it was required to be refunded. The plea was repelled and it was held that "repeal" and "deletion" carry the same meaning. In the case Province of East Pakistan vs. Sharafatullah and 87 others (PLD 1970 SC 514), the controversy was as to the date of assessment of compensation for the property requisitioned under East Bengal (Emergency) Requisition of Property Act (XIII), 1948. None of the judgments aforesaid relates to the controversy in respect of an electoral right. It is reiterated that a general statement of law is not the exposition of the whole law on the subject. Role of a precedent was explained by this Court in Trustees of the Port of Karachi vs. Muhammad Saleem (1994 SCMR 2213) by relying upon the following passage:
"Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found (Quinn v. Leathem (1901) AC 495, 506)."
(Rao Farid-ul-Haque Khan) Appeal allowed.
PLJ 2006 SC 1392 [Appellate Jurisdiction]
Present: Javed Iqbal & Nasir-ul-Mulk, JJ.
MUHAMMAD ILYAS etc.--Petitioners
versus
KHADIM HUSSAIN etc.--Respondents
C.P. No. 1157 of 2004, decided on 7.3.2006.
(On appeal from the judgment dated 2.4.2004 of the Lahore High Court, Lahore, passed in C.R. No. 1865 of 1997).
(i) Punjab Pre-emption Act, 1991 (IX of 1991)--
----Preamble--Question of limitation--Question of Limitation being a question of law can be raised at any time--Validity--Question of Limitation being a question of law can be raised at any moment but it must not be lost sight of that initially it should have been incorporated in the pleadings--No objection as to limitation was raised in pleadings and no issue got framed--Held: A careful perusal of the written statements is indicative of the fact that no objection whatsoever was raised qua limitation which was never pressed into service and no issue was got framed which, in our considered view, amounts to waiver. [P. 1394] A
(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----Ss. 6 & 7--Question of contiguity--Question of fact--Thorough evidence has already been examined--Held: Question of contiguity cannot be reconsidered--Validity--Question of contiguity being question of fact cannot be reconsidered as the evidence led in this regard has been examined in its true perspective by Appellate Court. [P. 1395] B
(iii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----Preamble--Contradiction in the statement of witnesses--Where no grave contradiction can be pointed out, and minor contradictions can be ignored--Validity--In so far as the question of contradictions is concerned, no grave contradiction could be pointed out by ASC on behalf of petitioners and minor contradictions can be ignored which usually do creep in with the passage of time--Petition dismissed. [P. 1396] C
PLJ 2000 SC 336, 1979 SCMR 630 & PLD 1986 SC 360, ref.
Mr. Mehdi Khan Chauhan, ASC and Mr. M.A. Zaidi, AOR for Petitioners.
Sh. Naveed Shehryar, ASC for Respondent No. 1.
Date of hearing : 7.3.2006.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 2.4.2004 passed by the learned Lahore High Court, Lahore, whereby the civil revision petition preferred on behalf of petitioners has been dismissed and judgment and decree dated 28.10.1997 passed by learned Additional District Judge, Kharian has been kept intact.
The facts of the case has been mentioned elaborately in the judgment impugned hence reproduction whereof would be of no use. Suffice it to say that the petitioners were vendees qua sale transaction dated 13.7.1986 which was challenged by means of a pre-emption suit by the predecessor-in-interest of the respondents which was dismissed by the learned Civil Judge by means of a decree dated 15.5.1995, however, on appeal preferred on behalf of respondents it was set aside vide judgment impugned, hence this petition.
Mr. Mehdi Khan Chauhan, learned ASC entered appearance on behalf of petitioners and contended strenuously that the evidence which has come on record has not been appreciated in its true perspective by the learned appellate and revisional Courts which resulted in serious miscarriage of justice. It is argued that the question of decreeing the suit would have not arisen as Talb-e-Ishhad was never made by the pre-emptors (respondents). It is urged with vehemence that the question of limitation has not been dilated upon and decided by the learned appellate and revisional Courts properly and the suit preferred on behalf of respondents should have been dismissed on the point of limitation. It is also argued that the suit of pre-emption cannot be decreed in favour of the legal heirs of the original pre-emptor as no decree could have been passed during the life time. It is also contended that pre-emptor has got no superior right of pre-emption as the land was not located adjacent to the land in question. It is also pointed out by the learned ASC on behalf of petitioners that there are certain glaring contradictions in the statements of witnesses produced by the respondents to substantiate their claim which have been ignored by the learned appellate and revisional forums and on this score alone the judgment impugned is liable to be set aside. It is also mentioned that the talbs could not be proved by adducing worthy of credence evidence by the respondents. It is lastly argued that no reasoning whatsoever has been given by the learned High Court for upholding the judgment of learned Additional District Judge and reversing the judgment of learned trial Court which being well reasoned and thus the judgment impugned is laconic.
Sh. Naveed Shehryar, learned ASC appeared on behalf of caveators and strenuously controverted the view point as canvassed at bar on behalf of petitioners with the further submission that learned appellate and revisional Courts have taken into consideration all the pros and cons of the controversy and set the same at naught in accordance with law and settled norms of justice. It is also pointed out that the evidence which has come on record has been appreciated in its true perspective and more so, that the objection of limitation was neither raised in the pleadings nor brought to the notice of learned trial Court but in order to frustrate the object of the judgment and decree passed by the learned appellate forum the objection of limitation was raised for the first time before the learned High Court which has been discarded for the valid reasons as given in the judgment impugned. The learned counsel for caveator has supported the judgment impugned being unexceptional and well based for the reasons enumerated therein.
We have carefully examined the rival contentions, scanned the entire evidence and perused the judgment of learned trial and appellate Courts as well as the judgment impugned. We intend to dilate upon the question of limitation first which has been pressed into service time and again by the learned ASC on behalf of petitioners. It is worth mentioning that the objection of limitation was never raised before the learned trial and appellate Courts but on the contrary it was introduced at revisional stage and no reason whatsoever could be given for this laxity. We are conscious of the fact that the question of limitation being a question of law can be raised at any moment but it must not be lost sight of that initially it should have been incorporated in the pleadings. A careful perusal of the written statements is indicative of the fact that no objection whatsoever was raised qua limitation which was never pressed into service and no issue was got framed which, in our considered view, amounts to waiver. It is worth mentioning that no cross appeal was filed on the point of limitation by the petitioners. In this regard reference can be made to case Atta Hussain Khan v. Muhammad Siddique Khan 1979 SCMR 630.
In so far as the dictum as laid down in case Government of N.W.F.P. v. Said Kamal Shah (PLD 1986 SC 360) is concerned that would have no substantial bearing on the merits of this case, hence it would be an academic exercise to discuss it again as it would not serve any useful purpose. We have also adverted to the contention of learned ASC that the suit is not maintainable as no cause of action whatsoever was available to the petitioners. This contention has probably been made in oblivion of the provisions as enumerated in Section 20 CPC read with Order 6 Rule 2 CPC which stipulates that "it does not comprise every piece of evidence which is necessary to prove each fact but every fact which is necessary to be proved to entitle the plaintiff to a decree." (1948 Pat. 723).
We have also addressed to the question as to whether factum of contiguity does constitute superior right of pre-emption? This is not the first occasion when the question of contiguity is being examined but it is well settled by now that the factum of contiguity does constitute superior right of pre-emption which aspect of the matter was discussed in case Haji Rozi Gul v. Mst. Mumtaz Begum (PLJ 2000 SC 336) as follows:--
"11. Mr. Saeed Baig, learned ASC, representing Respondent No. 1, submitted that the appellant's claim throughout had been that appellant had purchased the whole property vide registered sale-deed Nos. 314, 315 and 317 but the property which was subject-matter of registered sale-deed No. 316 was never pressed into service before any of the two Courts below and the learned High Court and, therefore, claim of the appellant that he remained co-sharer vide purchased portion of the disputed land through registered sale-deed No. 316 is not tenable. The learned counsel has further argued that the learned two Courts below have concurrently held that being an owner of contiguous property she had superior right of pre-emption which finding had been upheld by the learned High Court whereas the appellant had no such right.
After perusal of the record we find that the contentions raised on behalf of the appellant can hardly justify the reversal of concurrent findings of the two Courts below duly affirmed by the learned High Court. The concurrent finding aforesaid are based on the correct appraisal of evidence made available on the record of the case. Even if another view was possible on the submissions made by the learned counsel for appellant, this would hardly provide justification to interfere in the findings concurrently arrived at by the learned two Courts below and affirmed by the learned High Court."
The question of contiguity being question of fact cannot be reconsidered as the evidence led in this regard has been examined in its true perspective by the learned appellate Court as follows:--
".....I have given ample consideration to the material available on the file and I hold that the plaintiff was not a share holder in the Khatas of the suit land, however his land as per entries of Shajra Kishatwar is adjacent to the land in dispute consequently, on the basis of contiguity, I hold that the pre-emptor enjoy superior right of pre-emption qua the vendee/defendant."
The learned Single Judge in chambers of High Court also adverted to this point and discussed in a comprehensive manner in the judgment impugned, relevant portion whereof is reproduced herein below for ready reference:--
On the issue of superior right of the respondents, the learned counsel for the petitioners admitted that one corner of the suit land and that of the respondents' land abutted and touched each other and that the said two pieces of land were attached with each other at a corner. The lands thus adjacent each other. In support of the ground that Bunna Had to be shared equally to give physical contiguity to the lands, neither any law nor any precedent, were presented on behalf of the petitioner. The concurrent findings of the learned Courts below rendered through due and proper appreciation and analysis of evidence do not deserve any interference on the contiguity of the lands to vest the respondents' with a superior rights."
Besides that the question that Talb-e-Ishhad was not performed has rightly been considered by the Courts below which aspect of the matter has been taken care of properly by the learned High Court in the judgment impugned which being unexceptional does not warrant interference. In so far as the question of contradictions is concerned no grave contradiction could be pointed out by the learned ASC on behalf of petitioners and minor contradictions can be ignored which usually do creep in with the passage of time. No other point was argued. The petition being merit less is dismissed and leave refused.
(Rao Farid-ul-Haque Khan) Petition dismissed.
PLJ 2006 SC 1396 [Appellate Jurisdiction]
Present: Javed Iqbal & Abdul Hameed Dogar, JJ.
ATA ULLAH KHAN and others--Petitioners
versus
Mst. SURRAYA PARVEEN--Respondent
C.P. No. 102 of 2005, decided on 13.3.2006.
(On appeal from the order dated 2.12.2004 of the Lahore High Court, Lahore passed in C.R. No. 1461 of 2003).
(i) Constitution of Pakistan, 1973--
----Art. 201--Principle of--Judgment of larger Bench to be followed by judgment of smaller Bench--It is well settled principle enunciated by High Court that the judgment of large Bench is binding on the judgment of smaller Bench. [P. 1398] A
(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13(3)--Right of pre-emption--Common right of passage and right of irrigation--Respondent had superior right on basis of contiguity, common boundary line, common right of passage and common right of irrigation--No exception to findings of First Appellate Court and High Court on talabs which according to them were made well in accordance with law. [P. 1399] B
1997 SCMR 315, 2004 SCMR 1580, 1999 SCMR 717, 1999 SCMR 958 and 2000 SCMR 329 ref.
Mr. Saeed Akhtar, ASC and Mr. M.A. Zaidi, AOR for Petitioners.
Nemo for Respondent.
Date of hearing : 13.3.2006.
Judgment
Abdul Hameed Dogar, J.--Petitioners seek leave to appeal against the order dated 2.12.2004 passed by a learned Judge in Chambers of the Lahore High Court, Lahore, whereby Civil Revision No. 1461 of 2003 filed by them was dismissed.
Briefly, stated, facts giving rise to the filing of instant petition are that petitioners purchased 455 kanals of agricultural land in village Cheenapura, Tehsil Issakhel, District Mianwali for a consideration of Rs. 10,00,000/- (Rupees ten lacs) vide Mutation No. 28 dated 28.3.1995. Respondent filed suit for pre-emption which was dismissed on 15.12.2000 by learned Trial Court.
Feeling aggrieved, respondent preferred appeal which was allowed by the learned Additional District Judge, Mianwali, on 3.7.2003. The said judgment was assailed by petitioners before the learned High Court in the above mentioned civil revision which was dismissed vide impugned judgment.
We have heard Mr. Saeed Akhtar, learned counsel for the petitioners at length and have gone through the record and the proceedings of the case in minute particualrs.
Learned counsel for the petitioners vehemently contended that learned High Court has not appreciated the evidence brought on record in its true perspective which resulted in miscarriage of justice. According to him, the pre-requisite conditions of Talb-i-Muwathibat as prescribed by law were not fulfilled in this case. Even the names of two truthful witnesses in whose presence she made declaration to pre-empt have not been mentioned. He vehemently urged that the requirement of Talb-i-Muwathibat cannot be fulfilled unless the details, particulars, date, time and place are specifically indicated in the plaint and the names of persons in whose presence such Talab was made. He went on to argue that witnesses, namely, (PW-3) Muhammad Zafar Ullah Khan and (PW-4) Saeed Ullah even did not disclose in their respective statements in evidence the time and the date of sale. Even notice of Talb-i-Ishhad did not bear the time and date of reconfirmation of Talb-i-Muwathibat while making Talb-i-Ishhad. Lastly, the learned counsel contended that the judgment of First Appellate Court is based on misreading and non-appraisal of evidence as such, the same may be set aside.
On the other hand, according to the learned counsel for the respondents the impugned judgment does not suffer from any legal flaw and contended that all the three PWs examined are unanimous about the date, time and place of gaining of knowledge by the respondent regarding sale and has unambiguously deposed that the respondent instantly expressed her intention of pre-empting the sale. He further contended that the respondent has proved notice of Talb-i-Ishhad by producing its marginal witnesses, namely, (PW-3) Zafar Ullah Khan and (PW-4) Saeed Ullah who without any contradiction supported the case of respondent on making of Talabs. He further contended that even service of notice on petitioners is established through the testimony of independent witness, namely, PW-1 Noor Muhammad, Postman who also produced postal receipts Ex.P1 to Ex.P.17. He contended that respondent sent the notices to the petitioners under registered envelope according to their addresses as mentioned in the impugned mutation. Postal receipts are enough to substantiate the issuance of the notice under Section 13 of the Punjab Pre-emption Act, 1991. He strenuously argued that whosoever comes forward to testify shall be presumed to be truthful unless otherwise proved as it has been held by this Court in the case of Muhammad Ilyas v. Ghulam Muhammad and another (1999 SCMR 958). According to him, the manner of making Talb-i-Muwathibat and sending the notice of Talb-i-Ishhad have been elaborately discussed by a larger Bench of this Court in the case of Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCMR 329) and the case of respondents is at par with that case as such it being a decision of larger Bench is binding on the decision of smaller Bench of this Court.
According to the plaint on coming to know about the sale on 22.6.1995, respondent immediately disclosed her intention to pre-empt the suit land in the majlis of village in presence of (PW-3) Muhammad Zafar Ullah Khan and (PW-4) Saeed Ullah. According to the averments, the sale was kept secret and came to the notice of respondent after about two months and 24 days, i.e. 22.6.1995 which fact is established and not rebutted. The factum of sending of notice of Talb-i-Ishhad on the same day i.e. on 22.6.1995 after getting it attested by two truthful witnesses, namely, (PW-3) Muhammad Zafar Ullah Khan and (PW-4) Saeed Ullah also stood established on the record. As regards the right of pre-emption, it has been categorically stated by PWs, namely, (PW-3) Muhammad Zafar Ullah Khan and (PW-4) Saeed Ullah that respondent had the superior right on the basis of contiguity, common boundary line, common right of passage and common right of irrigation. Above all, there is no exception to the findings of learned Additional District Judge and that of learned High Court on both Talabs, which according to them, were made well in accordance with law. Learned counsel for petitioners though argued at length yet could not refer to any illegality, misreading or non-appraisal of evidence. It is well-settled principle enunciated by this Court that the judgment of large Bench is binding on the judgment of smaller Bench. Examining the case of respondent on the touchstone of the case of Haji Noor Muhammad (supra), it is found to be exactly the same on all four corners. Thus it being the decision of larger Bench is binding on the smaller Bench. In this context, we are fortified by the case of Chaudhry Muhammad Saleem v. Fazal Ahmad and other (1997 SCMR 315) wherein it has been held that the judgment rendered by the Full Bench of this Court comprising five Judges would be binding upon the Bench comprising of three Judges. In the case of Haji Noor Muhammad (supra) it has also been held that the plaintiff could not be non-suited merely on the ground that other details of time and place of the Talabs and names of witnesses etc. had not been specifically mentioned in the plaint. In the case of Allah Bakhsh and another v. Falak Sher (2004 SCMR 1580), this Court has held that minor discrepancy of time would not come in the way of pre-emptor. This Court also held in the case of Abdul Malik v. Muhammad Latif (1999 SCMR 717) that the service of registered notice by pre-emptor containing the names of the two truthful witnesses before whom Talb-i-Ishhad was allegedly made amounted to substantial compliance of the provisions of Section 13(3) of the Act and pre-emptor could not be non-suited on the ground that the notice served on the vendee containing Talb-i-Ishhad was not attested by two truthful witnesses whose names were disclosed in the notice.
For what has been discussed above, we are of the considered opinion that impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither there is misreading nor non-reading of material evidence brought on record or misconstruction of facts or law.
Resultantly, the petition being devoid of force is dismissed and leave to appeal refused.
(Rao Farid-ul-Haque Khan) Petition dismissed.
PLJ 2006 SC 1399 [Appellate Jurisdiction]
Present: Rana Bhagwandas, HACJ; Khalil-ur-Rehman Ramday & Nasir-ul-Mulk, JJ.
FEDERATION OF PAKISTAN through SECRETARY REVENUE DIVISION CENTRAL BOARD OF REVENUE ISLAMABAD and another--Appellants
versus
M/s BALOCHISTAN MINERALS & OIL (Pvt.) Ltd. Quetta--Respondent
C.A. No. 728 of 2002, decided on 14.2.2006.
(On appeal from the judgment of the Balochistan High Court, Quetta, dated 28.2.2002 passed in C.P. No. 634 of 2001).
(i) Interpretation of Statute--
----Conditions for imposition of Central
Excise Duty on Lubricating Oil--Levy of Central Excise Duty in pack' not on supply of oil in any other way--Validity--Second column of SRO No. 456 lays down the conditions for levy of Central Excise Duty on lubricating oil--Levy is on the oilin pack'--Held: No levy on supply on oil on any mode other than in packs. [P. 1402] A
(ii) Interpretation of Rules--
----Judgments were challenged--Judgment were not challenged means interpretation made by Courts is accepted--Validity--Judgments of High Courts interpreting language of legislature not challenged rather addition in statute is made--Effect--Acceptance of interpretation made by High Court--Held: Judgments of the Sindh High Court and Lahore High Court and instead adding another such heading to bring into the regime lubricating oil in bulk, the appellants have accepted the interpretation placed by two High Courts on the relevant provision of SRO No. 456. [P. 1403] B
(iii) Interpretation of Rules--
----Supply of oil--Object of--Supply of oil not covered by existing items--Object of new provision was to clarify the existing situation, the same has to be done by adding some explanation in existing provision and not by making addition by separate item--Validity--Object of such new provision was simply to clarify the situation already in existence, the same would have been incorporated as an explanation to existing items--Addition of a separate item by SRO No. 685 in SRO No. 456 amounts to acknowledgment by the legislature that supply of the oil in the bulk was not covered by existing items. [P. 1403] C
Mr. Raja M. Irshad, Deputy Attorney General with Sh. Mumtaz Ahmed, Member Legal, CBR for Appellants.
Mr. Fakharuddin G. Ebrahim, Sr. ASC with Mr. Shehanshah Hussain, ASC with Raja Abdul Ghafoor, AOR for Respondent.
Date of hearing : 14.2.2006.
Judgment
Nasir-ul-Mulk, J.--The Federation of Pakistan through Secretary Revenue Division Central Board of Revenue, Islamabad and another, have filed this appeal by leave of the Court from the judgment of the Balochistan High Court of 28.2.2002, allowing the writ petition of the respondent, M/s Balochistan Minerals & Oil Private Limited, Quetta, by holding that the respondent was not liable to pay Central Excise Duty (CED) on Mobile and Lubricating Oil, manufactured by it and transported for sale to different parts of the country, as the same, being supplied in bulk, was exempted from the Duty, for it was leviable on such oils only if supplied in packs under SRO No. 456(I)/96 dated 13.6.1996, which reads:--
Heading/Sub-
heading
number
Conditions
Rate of duty
(1)
(2)
(3)
..Lubricating Oil, i.e. Oil such as is not ordinarily issued for any other purpose than lubrication which has flash point at or above 200 F by Abel's Close Test
2710.0081
In packs not exceeding 10 litres
10 percent of the retail price or seven rupees and fifteen paisa per litre whichever is higher
2710.0082
In packs exceeding 10 litres
Ten percent of the retail price or seven rupees and fifteen paisa per litre, whichever is higher"
By Finance Ordinance, 2001, the schedule to the Customs Act was replaced and under Heading No. 2710.0083, another item was introduced namely, Lubricating Oil etc. in bulk (vessels, bowzers and lorries etc.). By SRO No. 685(I)/2001 dated 27.9.2001, this additional item was incorporated, by amendment, in SRO No. 456 levying Central Excise Duty at the rate of Rs. 7.15 per litre. Leave to appeal was granted to consider whether lubricating oil supplied in excess of 10 litres would not be covered by Item No. 2710.0081 of SRO No. 456. Further that whether the levy of Central Excise Duty on bulk by SRO No. 685 was not meant to clarify that the duty thereon was also payable under SRO No. 456.
pack' and inbulk' are terms not mutually exclusive and that even oils in bulk, that is in large quantities, can still be packed in big packs for transportation. It was thus contended that lubricating oil in excess of 10 litres supplied by the respondent would fall under Item 2710.0082 of SRO No.It was further pointed out that SRO No. 685 issued on 27.9.2001 was intended to be a clarification, necessitated by an earlier decision of the Sindh High Court similar to the one impugned in this appeal.
Mr. Fakharuddin G. Ebrahim, Sr. ASC and Mr. Shehanshah Hussain, ASC, appearing for the respondent, argued that the Sindh High Court as well as the Lahore High Court had earlier held that lubricating oil supplied in bulks was not amenable to levy of Central Excise Duty as under SRO No. 456 only the oil supplied in packs was subject to such levy. That the Central Board of Revenue has not assailed the said judgments before this Court and therefore, the declaration given therein has attained finality. As to the connotation of `pack' appearing in SOR No. 456, the learned counsel submitted that it would not cover supply in bulks. Elaborating, it was argued that the supply in packs means supplying the contents along with packing whereas the respondent was simply supplying the oil in bulk even if it was to be transported in some containers to the retailers.
The dispute relates to the payment of Central Excise Duty by the respondent already made between 13.6.1996, the date of SRO No. 456 and 27.9.2001 on which SRO No. 685 was issued, as after that admittedly the lubricating oil even supplied in bulks by the respondent is validly subjected to payment of they Duty. Though extensive arguments were advanced at the bar by both sides on the exact connotation of the term pack' appearing in SRO No. 456, there is no finding by the High Court as to the mode of transportation used by the respondent for supplying the oil, and quite obviously, as there was no such controversy raised before the Court. The respondent in his writ petition had simply averred in para 5 that "it purchases raw material for manufacturing all lubricating oils from Karachi and after processing the same through plant, the same is transported to various parts of the country". The mode of this transportation was not specified but it was stated elsewhere that the supply was being made in bulks. The appellants in their parawise comments before the High Court did not make any assertion that the respondent transported the oil in any form of packs, small or large, but defended the levy by pleading that bulk consignments would fall under Item No. 7210.008 as the same exceeded 10 litres. In the absence of any factual foundation it would be nothing more that fruitless academic exercise to try to give meaning topack' in the context used in SRO No. 456.
The second column of SRO No. 456 lays down the conditions for levy of Central Excise Duty on lubricating oil. The levy is on the oil `in pack'. Thus, there is no levy on supply of the oil on any mode other than in packs. It was in this view of the matter that the Sindh High Court in the case "Adam Lubricants Limited vs. Federation of Pakistan & others" (Suit No. 840 of 2001) held on 27.6.2001 that SRO No. 456 imposed Central Excise Duty on lubricating oil only when supplied in packs. This view was followed by the Lahore High Court in "Punjab Petroleum Industries (Pvt.) Limited vs. Collector Central Excise (Writ Petition No. 14312 of 2001, decided on 6.8.2001)". Neither of the two decisions have been questioned before this Court and it seems that it was on account of the judgment of the Sindh High Court that in the following Finance Ordinance of 2001, a provision was made for levy of Duty on bulk supplies of lubricating oil, and the Central Excise Duty was imposed by SRO No. 685 dated 27.9.2001 by the addition of Heading No. 2710.0083. By not challenging the judgments of the Sindh High Court and the Lahore High Court and instead adding another such heading to bring into the regime lubricating oil in bulk, the appellants have accepted the interpretation placed by the two High Courts on the relevant provisions of SRO No. 456.
The contention on behalf of the appellants based on the addition of subheading No. 2710.0083 rather supports the case of the respondent. The addition, it seems, became necessary after the Central Board of Revenue, had released that the existing provisions of SRO No. 456 did not cover the supply of oil in bulks. If the object of this new provision was simply to clarify the situation already in existence, the same would have been incorporated as an explanation to the existing Item No. 2710.0082. The addition of a separate item (No. 2710.0083) by SRO No. 685 in SRO No. 456 amounts to acknowledgement by the legislature that supply of the oil in bulk was not covered by the existing items.
In the light of the above, we would maintain the judgment of the Balochistan High Court and subsequently, dismiss the appeal with no order as to costs.
(Rao Farid-ul-Haque Khan) Appeal dismissed.
PLJ 2006 SC 1403 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ.
MALIK MUHAMMAD INAM and others--Appellants
versus
FEDERATION OF PAKISTAN and others--Respondents
C.As. Nos. 857 to 867, 1792, 1793 of 2002, 589 & 48 of 2003 and 2511, 2512 of 2001, 448 of 2004 and 379 of 2006, decided on 17.4.2006.
(On appeal from the judgment dated 31.10.2001 passed by Lahore High Court, Lahore in Writ Petitions Nos. 1973, 13908, 13972, 17396, 17397, 1739, 11552, 11553, 14965, 13863, 25079, 8826, 11366, 14549, 13717, 24448, 1086, 24202, 16000, 14379 of 2001, 19234, 19844, 23256 of 2000, 1985, 7552, 436, 12979, 12378, 14847, 14848, 13878, 13877, 13879, 14401, 14402, 13259, 13261, 13262, 13263, 13265, 13211, 13215, 13216, 14881, 13612, 13374, 13494, 14234, 15806, 17379 of 2001 and 17762, 2912 and 2465 and 2900 of 2000 and dated 28.1.2004 in I.C.A. No. 22 of 2002)
Income Tax Ordinance, 1979 (XXXI of 1979)--
----S. 16(2)(a)(iii) & (2)(c)(i)--Constitution of Pakistan, 1973, Arts. 212 & 185(3)--Financial institution order to reduce inflated and introudced "Golden Hand Shake Scheme" to employees to voluntarily seek retirement--Services of retiring employees were terminated--As per instructions of Central Board of Revenue deducted tax--Petitions were disposed of by single bench--Deductions were ultra vires of power of CBR dismissed appeals--Assailed--leave to appeal--Payments in lieu of salary or by way of compensation for loss of service includes in salary--Validity--Payments irrespective whether they were by way of compensation for loss of service or payments in lieu of the salary, which they would have been entitled to draw till their services came to an end in the normal course of their service, squarely fell within the definition of salary--Held: Language used by the legislature in Section 16 of repealed Ordinance even in absence of the words payments or profits received on retirement or termination of employment on account of golden hand shake scheme or voluntary retirement scheme without any doubt or ambiguity brought such payments within the ambit of definition of salary in the repealed Ordinance--Effect--Such payments would fall within the tax net and chargeable to tax. [Pp. 1410 & 1411] A & B
Income Tax Ordinance, 1979 (XXXI of 1979)--
----S. 16(2)(a)(iii) & (2)(c)(i)--Constitution of Pakistan, 1973, Arts. 212 & 185(3)--Financial institution order to reduce inflated and introudced "Golden Hand Shake Scheme" to employees to voluntarily seek retirement--Services of retiring employees were terminated--As per instructions of Central Board of Revenue deducted tax--Petitions were disposed of by single benefits--Deductions were ultra vires of power of Central Board of Revenue--ICA dismissed appeals--Assailed--Payments received by retiring employees from their employer would be deemed to be salary/salaries--Effect--Courts bound to give effect to deeming provision/legal fiction--Validity--Payments made or received by the retiring employees from their employers, would not be covered or fall within the definition of salary would be deemed to be salary/salaries and the Courts would be bound to give effect to the deeming provisions/legal fiction created by the Legislature for bringing such payments within the meaning of salary--Held: Retiring employees would be liable to pay tax. [Pp. 1411 & 1412] E
Income Tax Ordinance, 1979 (XXXI of 1979)--
----S. 16(2)(a)(iii) & (2)(c)(i)--Constitution of Pakistan, 1973, Arts. 212 & 185(3)--Financial institution order to reduce inflated and introudced "Golden Hand Shake Scheme" to employees to voluntarily seek retirement--Services of retiring employees were terminated--As per instructions of Central Board of Revenue deducted tax--Petitions were disposed of by single bench--Deductions were ultra vires of power of Central Board of Revenue--ICA dismissed appeals--Assailed--Whether the circular issued by the CBR regarding treatment of payments received by the retiring employees levied or imposed tax thereon or conferred powers on authorities to deduct tax--Contention appears to be misconceived--Validity--Contents of the circular only amount to giving effect to the provision of the Ss. 16(2)(a)(iii) & (2)(c)(i) of the repealed Ordinance by virtue of which payments fell within the definition of salary--If provisions had not existed then in their absence such instructions or directions would have amounted to levying tax. [P. 1414] F
Interpretation of Statute--
----Hardship or inconvenience--Determination--Validity--Hardship or inconvenience which might be caused to a citizen by a provision of law is not a ground to be considered by the Courts in interpreting and determining the legality of a provision of a statute. [P. 1415] G
Interpretation of Rules--
----Interpreting the word "included" or "includes"--Legislature use the word "included" or "includes" the rule of interpretation is that it is used as a word of enlargement and it ordinarily implies that something what has been included which falls outside the general meaning of the word--It might be used to give a comprehensive description that includes what is not obvious what is uncertain and what is in the ordinary sense not impossible. [P. 1411] D
Words & Phrases--
----Legal fiction--Concept of--Legislature may in a statute provide the existence of a certain fact or the happening of an event or meaning of a word, which actually does not exist or happen or which ordinarily is not assigned to it--It is made to exist or happen or mean by deeming provisions/creating a legal fiction. [P. 1411] C
PLD 1997 SC 582; AIR 1963 SC 1343 and AIR 1932 Privy Council 138 ref.
Mr. Ibrar Hussain Naqvi, ASC with Mr. Ejaz Muhammad Khan, AOR for Appellants (in C.A. 858 of 2002).
Mr. C.M. Lateef, ASC for Appellants (in C.A. 857 & 860/2002).
Roy Muhammad Nawaz Kharal, ASC for Appellants (in C.A. No. 1792 & 1793/2002).
Mr. Sikandar Hayat Khan, ASC for Appellants (in C.A. No. 379 of 2006).
Mr. Muhammad Ilyas Khan, Sr. ASC for Respondents (in C.As. Nos. 857-867/2002 & 589/2003).
Malik Muhammad Nawaz, ASC with Raja Abdul Ghafoor, AOR for Respondents (in C.A. No. 1792 & 1793/2002).
Ch. Akhtar Ali, AOR for Respondents (in C.A. 1792/2002).
Mr. Mehr Khan Malik, AOR for Respondents (in C.A. No. 2512/2001).
Mr. Muhammad Ilyas Khan, Sr. ASC with Ch. Muhammad Aslam Chattha, AOR (absent) for Appellants (in C.A. No. 2511 of 2001).
Nemo for for Respondent (in C.A. No. 2511 of 2001).
Mr. Muhammad Ilyas Khan, Sr. ASC with Ch. Muhammad Aslam Chattha, AOR (absent) for Appellants (in C.A. No. 2512 of 2001).
Mehr Khan Malik, AOR for Respondent (in C.A. No. 2512 of 2001).
Mr. Muhammad Ilyas Khan, Sr. ASC with Ch. Muhammad Aslam Chattha, AOR (absent) for Appellants (in C.A. No. 448 of 2004).
Nemo for Respondent (in C.A. No. 448 of 2004).
Date of hearing: 17.4.2006.
Judgment
Saiyed Saeed Ashhad, J.--The above 19 appeals with leave of the Court have been directed against the judgment of Lahore High Court dated 31.10.2001 in Writ Petition No. 1973 of 2001 and other connected writ petitions, judgment dated 17.10.2000 in Writ Petitions Nos. 17762 of 2000 and 18145 of 2000, and judgment dated 10.4.2002 and in Writ Petition No. 2900 of 2000. In sixteen appeals the appellants are the employees/assessees while Federation of Pakistan and the I.T. Department are the respondents. In three appeals Federation of Pakistan and the I.T. Department are appellants while the employees/assesses are the respondents.
The brief facts leading to these appeals are that the assesses (hereinafter referred to as the "retiring employees") where in the service of nationalized banks and financial institutions (hereinafter referred to as the "Financial Institutions") managed and controlled by the Federal Government. The financial institutions in order to reduce the inflated and large number of employees in their Establishments introduced schemes known as "Golden Hand Shake Scheme/Voluntary Separation Scheme (hereinafter referred to as "the Scheme") giving option to their employees to voluntarily seek retirement before attaining the age of superannuation on payment of lump sum amounts as compensation for premature voluntary retirement/loss of employment or in lieu of salary (hereinafter referred to as "such payments"). The Financial Institutions offered different terms and conditions to their employees for opting to leave the employment on voluntary retirement. The services of the retiring employees were terminated and they voluntarily retired earlier then their due date of retirement on receipt of such payments offered to them under the aforesaid schemes. Such termination/voluntary retirement took place in the years 2000 and 2001 before promulgation of Income Tax Ordinance, 2001. The Financial Institutions as per instructions of Central Board of Revenue contained in Circular No. 15 dated 16.11.1997 deducted tax under Section 50 of the repealed Income Tax Ordinance 1979 (hereinafter referred to as the "repealed Ordinance"). In making such deductions, they were allowed the benefits of CBR Circular No. 1 of 1965 dated 1st July, 1965.
The retiring employees felt aggrieved and dissatisfied with the deduction of tax from such payments and assailed the action of the Financial Institutions/Income Tax Department by filing Writ Petitions in Lahore High Court.
A large number of writ petitions were disposed of by a learned Single Judge of the Lahore High Court vide judgment dated 16.4.1998 in Writ Petition No. 282 of 1998 allowing the writ petition, holding the circular dated 23.8.1997, where under the deductions were said to have been made, to be ultra vires of the power of the CBR and declaring the same to be without lawful authority. Another learned Single Judge of Lahore High Court, Rawalpindi Bench vide judgment dated 13.12.1999 in Writ Petition No. 2086 of 1999 also allowed similar writ petitions holding that such payments received by the retiring employees from their employers were not compensation in lieu of salary but compensation for loss of employment and were to be treated as capital receipts not liable to be taxed as income. The judgments of the learned Single Judge were not accepted by the Income Tax Department and it assailed the same by way of ICA No. 241 of 2000. At the same time a large number of writ petitions were heard and disposed of by a Division Bench of Lahore High Court, Lahore, vide judgment dated 31.10.2001 dismissing all the writ petitions filed by the retiring employees holding that such payments were in the nature of salary as defined in Section 16 of the repealed Ordinance and were liable to tax under Section 15 of the repealed Ordinance.
The retiring employees feeling aggrieved and dissatisfied with the judgment of the learned Division Bench of the High Court dated 31.10.2000 assailed the same by filing Civil Petition for Leave to Appeal in this Court. The Department filed three Civil Petitions for Leave to Appeal against the judgments of Lahore High Court dated 17.10.2000 in Writ Petitions Nos. 17762 of 2000 and 18145 of 2000; and dated 10.4.2002 in Writ Petition No. 2900 of 2000.
We have heard Mr. Ibrar Hussain Naqvi, ASC in Civil Appeal No. 858 of 2002, Mr. Sikandar Hayat Khan, ASC in CA 379 of 2006 on behalf of the retiring employees. Mr. C.M. Latif, ASC, Rai Muhammad Nawaz Khan Kharal, ASC appearing in other civil appeals on behalf of the retiring employees had adopted the arguments of Mr. Sikandar Hayat Khan and Ibrar Hussain Naqvi, ASCs. Mr. Muhammad Ilyas Khan, Sr. ASC and Malik Muhammad Nawaz, ASC appeared on behalf of the Department.
M/s. Ibrar Hussain Naqvi and Sikandar Hayat Khan in the appeals filed by the retiring employees assailed the judgment of Lahore High Court dated 31.10.2001 on the following grounds--
(i) that the High Court erred in not holding that such payments were in the nature of ex-gratia payments basically made to the retiring employees to compensate them for the loss of employment and in lieu of salary, which they were legally entitled to receive till attaining the age of superannuation i.e. 60 years; and, as such would be exempt from charge to tax;
(ii) that the High Court committed a grave illegality in holding that such payments fell within the ambit of Section 16 of the repealed Ordinance;
(iii) that the High Court failed to appreciate that such payments were neither in the nature of compensation or profits for the loss of service or in lieu of salaries but were one time ex-gratia payments falling within the definition of capital gains and were exempted from charge to tax under the repealed Ordinance. It was also submitted that the payments were in the nature of a windfall not liable to be taxed;
(iv) that the High Court committed grave illegality in holding that the retirement of the retiring employees in pursuance of golden hand shake scheme/voluntary separation scheme amounted to modification of terms and conditions of their service inasmuch as they were never in the service of the financial institutions after acceptance of the payments;
(v) that the High Court also committed grave illegality in not to giving due consideration to Clauses 17, 17-AA and 77 of the Second Schedule to the repealed Ordinance; and
(vi) that the High Court failed to take into consideration the provisions of Section 16(2)(c)(i) of the repealed Ordinance and Section 12(2)(c)(iii) of the Income Tax Ordinance, 2001 (hereinafter referred to as the "Ordinance") which if duly considered in juxtaposition would have lead to the only possible inference that such payments were not salary but retirement/pensionary benefits exempt from change to tax in pursuance of the aforesaid clauses of the Second Schedule to the repealed Ordinance.
Mr. M. Ilyas Khan, Sr. ASC and Malik Muhammad Nawaz, ASC appearing on behalf of the Department on the other hand vehemently controverted the arguments advanced by the learned counsel for the retiring employees and submitted that the same did not carry and substance and were not tenable. They fully supported the impugned judgment of Lahore High Court dated 30.10.2001 and submitted that the learned Division Bench in deciding the writ petition filed by the retiring employees had minutely examined the provisions of the Ordinance as well as of the repealed Ordinance, the arguments advanced by the learned counsel for the parties and the case law referred to it and rightly pronounced that such payments were in the nature of salary as defined in the repealed Ordinance, liable to be taxed thereunder.
We have considered the arguments of the learned counsel for the parties and have gone through the material on record. The sole question, which requires determination, is whether such payments would fall within the definition of salary so as to be taxable under the repealed Ordinance. The relevant provisions of law dealing with the above question are contained in Section 16(2)(a)(iii) & 2(c)(i) of the repealed Ordinance. It will be beneficial to reproduce the above two provisions as under:
(1) The following incomes shall be chargeable under the head "Salary", namely:--
(a)
(b)
16 (2) for the purpose of sub-section (1):
(a)
(i)
(ii)
(iii) any fees, commissions, allowances, perquisites or profits in lieu of, or in addition to salary or wages;
(b) "perquisite" includes--
(i)
(ii)
(iii)
(iv)
(v)
(c) "profits in lieu of salary" includes--
(i) the amount of any compensation due to or received by, an assessee from his employer at, or in connection with, the termination of or the modification of any terms or conditions relating to, his employment;
From a bare perusal of Section 16(2)(a)(iii) of the repealed Ordinance it may be observed that the salary as defined includes profits in lieu of or in addition to salary or wages. Furthermore, according to Section 16(2)(c)(i) of the repealed Ordinance the words profit in lieu of salary used in Section 16(2)(a)(iii) of the repealed Ordinance would include any amount due or received by any employee or assessee from his employer on account of termination of or the modification of any terms and conditions relating to his service/employment. The aforesaid provision of the repealed Ordinance read together leave no room for doubt that such payments irrespective whether they were by way of compensation for loss of service or payments in lieu of the salary, which they would have been entitled to draw till their services came to an end in the normal course of their service, squarely fell within the definition of salary. This conclusion is obvious from a bare reading of the two afore-referred provisions of Section 16 of the repealed Ordinance which admit of no other conclusion or inference. By virtue of the golden hand shake/voluntary separation scheme, the terms and conditions of the retiring employees were modified which resulted in termination of their employment on their voluntarily agreeing to retire from service on acceptance of such payments as compensation. Once it is concluded that such payments made to the retiring employees were salaries as defined in Section 16 of the repealed Ordinance, the natural consequence would be that such payments would be liable to be taxed under clause `a' of Section 15 of the repealed Ordinance. In view of the clear/express and unambiguous provisions of Section 16(2)(a)(iii) and (2)(c)(i) of the repealed Ordinance all the contention and arguments advanced by the learned counsel for the retiring employees pale into insignificance. The learned counsel were unable to advance plausible, satisfactory and cogent arguments to press home their contention that such payments would not fall within the ambit of the provisions of Section 16 of the repealed Ordinance. One of the contentions advanced by the learned counsel for the retiring employees with great vehemence was that they would not fall within the tax net as in Section 12 of the Ordinance, which defines salary; such payments have been specifically included in the definition of salary, which was not the case in the repealed Ordinance. It was submitted that inclusion of such payments in the definition of salary in Section 12(2)(e)(iii) of the Ordinance would lead to an inference/conclusion that they would not fall within the definition of salary as defined in the repealed Ordinance in absence of specific inclusion of such payments in Section 16 of the repealed Ordinance and that the Legislature being mindful of this lacuna or the shortcoming specifically included such payments in the definition of salary in the Ordinance. On the basis of the above contention it was submitted that when the Legislature intended to bring such payments within the tax net it specifically included them in the definition of salary as it was a clear indication that the Legislature was satisfied that without doing so such payments could not be brought within tax net under the Ordinance and, if it be so, in the Ordinance then it was imperative that a provision similar to one contained in Section 12(2)(e)(iii) of the Ordinance should have been incorporated in the repealed Ordinance for bringing such payments within the tax net without which they would not fall within the definition of salary.
This contention is without any substance and does not merit consideration as the Legislature though not specifying or including such payments yet it had taken due care to bring such payments within the definition of salary in the repealed Ordinance. The language used by the Legislature in Section 16(2)(a)(iii) and (2)(c)(i) of the repealed Ordinance even in absence of the words payments or profits received on retirement or termination of employment on account of golden hand shake scheme or voluntary retirement scheme without any doubt or ambiguity brought such payments within the ambit of definition of salary in the repealed Ordinance, thus, falling within the tax net and chargeable to tax.
The contention that such payments could never be considered as profits in lieu of salary as the employment/service of the retiring employees had come to an end on their acceptance of voluntary retirement/termination of their service and treating the said lump sum payments as salary would be contrary and violative of the provisions of Section 16 of the repealed Ordinance as while defining the word salary it necessarily envisaged continuation of employment/service and existence of relationship of employer and employees, which had ceased to exist, is without any substance and does not merit consideration. The legislature may in a statute provide the existence of a certain fact or the happening of an event or meaning of a word, which actually does not exist or happen or which ordinarily is not assigned to it. It is made to exist or happen or mean by deeming provisions/creating a legal fiction. The legislature sometimes uses the deeming provisions in a statute to impose for the purpose of the statute an artificial construction of a word or a phrase that would not otherwise prevail. Where in defining anything, the Legislature uses the word "included" or "includes" the rule of interpretation is that it is used as a word of enlargement and it ordinarily implies that something else has been included which falls outside the general meaning of the word. It may also be used to give a comprehensive description that includes what is not obvious what is uncertain and what is in the ordinary sense not impossible. It will be useful for having a clear understanding of the scope of the deeming provision and the device of legal fiction to reproduce a passage from N.S. Bindra's book titled Interpretation of Statutes, Sixth Edition from page 43 as under:
"When the legislature says that rules, regulations and bye-laws which have been framed under the statutory power conferred by the Act "shall have effect as if enacted in this Act", it is adopting the well-known device of legal fiction whereby we are bidden to treat "Rule" not framed under the Act as which are usually applicable for interpreting legal fictions will have to be resorted to."
Thus the effect of the above two referred provisions of Section 16 of the repealed Ordinance is that such payments made or received by the retiring employees from their employers, which otherwise would not be covered or fall within the definition of salary would be deemed to be salary/salaries and the Courts would be bound to give effect to the deeming provision/legal fiction created by the Legislature for bringing such payments within the meaning of salary. Such payments would, thus fall within the definition of salary and the retiring employees would be liable to pay tax thereon. If any authority is required in support of the above proposition, the same is available from the judgment of this Court in the case of Ellahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others (PLD 1997 SC 582) wherein following observations were made:
"(xvii) That generally the effect of a deeming provision in a taxing statute is that it brings within the tax net an amount which ordinarily would not have been treated as an income. In other words, it brings within the net of changeability income not actually accrued but which supposedly to have accrued notionally.
(xix) That where a person is deemed to be something the only meaning possible is that whereas he is not in reality that something, the Act required him to be treated as he were with all inevitable collaries of that state of affairs."
From the pronouncement of this Court in cited case reproduced above not only such payments would have to be treated as salary but every retiring employee would be deemed to be an "assessee" as defined in Section 2(6) of the repealed Ordinance.
In the circumstance the contention that such payments were in the nature of retirement/pensionary benefits would be exempt to tax under Clause 17, 17(AA) and 77 of the Second Schedule to the Repealed Ordinance is without any substance and is repelled.
Learned counsel for the appellants had heavily relied on the case of Income Tax Commissioner vs. E.D. Sheppard (AIR 1963 SC 1343) in support of their contention that such payments would not fall within the meaning of salary and not liable to be subjected to income tax. After going through the said judgment it is observed that the pronouncement made therein has no application to the facts and circumstances of this case as the facts and circumstances of the cited case were altogether different. The Supreme Court of India while dealing with Explanation 2 to Section 11 of the repealed Income Tax Act, 1922, as it existed before it was amended by Finance Act, 1955, specifically provided the payments made solely as compensation for loss of employment to be not liable to tax, which is not the case in hand.
Learned counsel also relied on the judgment in the case Commissioner of Income Tax Bangal v. Shawallace and Company (AIR 1932 Privy Council 138) in support of their above contention. In this case the Privy Council pronounced that sums received as salary for terminating agency would not be income, profit or gain and further that income necessarily connoted a periodical monetary return coming in with some sort of regularity or expected regularity from definite source. In the cited case the question for determination was whether the sums received as salary for terminating agency would be income or other wise. In the case in hand it is not the case of termination of agency but a case of termination/retirement of employees before reaching the age of superannuation who agreed to accept the beneficial, extra or special monetary payments. Further more, in the repealed Income Tax Act, 1922 there was no provisions analogous to Section 16(2)(a)(iii) and (2)(c)(i) of the repealed Ordinance.
It was argued with vehemence that the Central Board of Revenue had no authority in law to declare a particular payment/receipt of money as income and directing the concerned Authority to deduct or charge income tax thereon, under the repealed Ordinance. It was further submitted that the power to subject any receipt or payment of money to income tax and to direct the concerned Authority to make deduction would be the sole prerogative of the Legislature and, therefore, the Circular of CBR was illegal, ultra vires and of no legal effect.
For determining the legality or otherwise of the said Circular it will be proper to reproduce the same as under:
C.No. 1(39) E&IC/97 Government of Pakistan CENTRAL BOARD OF REVENUE
Islamabad, the November 6, 1997
CIRCULAR NO. 15 OF 1997 (INCOME TAX)
Subject: PAYMENTS UNDER THE GOLDEN HANDSHAKE SCHEME-TAX TREATMENT OF.
Recently a number of banks and other organizations have announced golden handshake schemes for their employees, offering a variety of compensation packages to them. It has been represented to the Board that a portion of this compensation amount would be deducted by way of income tax and, therefore, the actual amount that a terminated/retired employee would be reduced.
Payment made under the golden handshake scheme is primarily a "compensation in connection with termination of employment" and is taxable under the head "salary" under Section 16(2)(c) of the Income Tax, 1979. The compensation forms part of an employee's income for the year in which it is received. This treatment obviously results in taxation at a rate higher than that which would normally be applicable to a terminated employee. Realizing this hardship, the CBR issued Circular No. 1 of 1965 dated July 1, 1965, whereby a terminated employee was granted the concession of getting this compensation taxed as a separate block, at his three preceding year's average tax rate.
In response to the queries referred to the Board in this regard, it has been confirmed that this concession is still available.
The Board has received representations that in view of the fact that the rates of tax have been substantially reduced from the Assessment Year 1998-99 onwards, the employees who have been allowed golden handshake would not be able to benefit from this reduction if they are taxed at the previous three years average rate.
The matter has been considered by the Board and it has been decided that the terminated/retired employees if they so opt, can get the amount of termination compensation taxed at the reduced rates applicable to assessment year 1998-99. However, if an employee considers that the three years average tax method is more beneficial to him, he can opt for it. These concessions are obviously in addition to exemptions already available to private sector employees in respect of payments from Recognized/Gratuity Funds."
From a bare perusal of the Circular this contention appears to be misconceived. It may be observed that CBR had neither levied nor imposed tax on such payments nor had conferred powers on the concerned persons/authorities to deduct income tax under the repealed Ordinance. The contents of the Circular only amount to giving effect to the provision of the Section 16(2)(a)(iii) and (2)(c)(i) of the repealed Ordinance by virtue of which such payments fell within the definition of salary. If these two provisions had not existed then in their absence such instructions or directions would have amounted to levying tax. In the circumstances, the instructions/directions of the CBR in the Circular in question were for apprising the concerned persons/authority of the relevant provisions of Section 16 of the repealed Ordinance whereby such payments were to be treated as salary falling within the tax net and as a natural corollary of the above would be that the provision of Section 50(4) of the repealed Ordinance would have to be resorted to by the concerned persons/authority. No exception can be taken relative to the validity of the said circular.
Lastly it was submitted that by virtue of termination of services/employment by way of voluntary retirement under the golden hand shake/voluntary separation schemes the retiring employees had already undergone/suffered huge financial/monetary loss inasmuch as had they continued of serve the Financial Institutions as per their original terms and conditions of service, they would have earned much more from the salaries which they would be drawing till their retirement together with the perks and fringe benefits than such payments made to them and would be well of financially and subjecting such payments to tax would further adversely affect them financially leading to hardships as huge amount would be deducted from such payments rendering them incapable of meeting the requirements and providing subsistence to there families. This contention also is without merit in view of the settled principle that hardship or inconvenience which may be caused to a citizen by a provision of law is not a ground to be considered by the Courts in interpreting and determining the legality of a provision of a statute. If the subject falls within the ambit of the statute then irrespective of the hardships which he may face, the provision of the statute is to be given effect to and the citizen cannot be absolved his liability on sympathetic or humanitarian grounds as was declared by this Court in the case of Ghulam Mustafa Insari and 48 others vs. Government of the Punjab and others (2004 SCMR 1903) if not found to be violative of any provision of the Constitution including fundamental rights.
For the foregoing facts, discussion and reasons we find that the appeals filed by the retiring employees are without any merit. The impugned judgment of Lahore High Court dated 31.10.2001 does not suffer from any illegality, infirmity or irregularity requiring interference therewith. Accordingly the appeals filed by the retiring Employees No. 857 to 867 of 2002, 1792, 1793 of 2002, 589, 48 of 2003 and 379 of 2006 are dismissed. Appeals Bearing Nos. 2511, 2512 of 2001 and 448 of 2004 filed by the Department against the judgments of Lahore High Court dated 17.10.2000 and 10.4.2002 are allowed in terms of the above pronouncement and the impugned judgments are set aside. The parties are left to bear their own costs.
(Rao Farid-ul-Haque Khan) Order accordingly.
PLJ 2006 SC 1415 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmed, JJ.
HAMEED GUL--Petitioner
versus
TAHIR and 2 others--Respondents
Crl. Petition No. 260 of 2004, decided on 26.5.2006.
(On appeal from the judgment dated 22.1.2004 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 118 & Criminal Revision No. 33 of 2003)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302/324--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence recorded against accused by trial Court--Acquittal by High Court--Appreciation of evidence--Held: Dying declaration were not worthy of credence and could not be placed reliance upon in a case of capital charge--It was an unseen night occurrence where the identity of the accused could not be established--Petition dismissed. [P. 1417] A
Mr. S. Ibne Ali, ASC with Mr. Mehr Khan Malik, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 26.5.2006.
Judgment
Sardar Muhammad Raza Khan, J.--Hameed Gul, complainant of FIR # 871 dated 25.12.1999 of Police Station Hangu, seeks leave to appeal against the judgment dated 21.5.2004 of a learned Division Bench of Peshawar High Court whereby Tahir and Muhammad Ayaz, respondents were acquitted of charges under Sections 302/324 PPC.
The prosecution version according to the complainant/brother of the deceased namely Hameed Gul son of Niaz Bahadur is that on 25.12.1999 at 7.30 p.m., his brother Mian Asghar had taken his vehicle from house and left for village Wrasta. The complainant was present in his house, when he received information that his brother Mian Asghar was murdered by someone and his dead body was lying in a ditch known as Razghai. He rushed thereto. On reaching there he found his brother lying murdered while Khair Muhammad who had been injured was removed to Civil Hospital Hangu. He further stated that he has no enmity with anyone. He added that he was enquiring and after satisfaction will charge the culprits. He, however, charged none in the FIR.
The prosecution case mainly depends upon the dying declaration of Khair Muhammad who, then injured, subsequently died. The complainant himself is not a witness to the occurrence. Attributed to Khair Muhammad PW are two dying declarations Ex.PA/2 and Ex.PA/3. Taking Ex.PA/2, first, one can notice that it is undated. It bears an endorsement of doctor (PW-10) but in cross-examination, he (PW-10) categorically stated that it had been recorded by the police and was brought to him for endorsement and further that at the time of recording the statement, he was busy in attending to the patients inside the causality. Abdul Hakim (PW-7) appeared as Investigating Officer, giving an amazing statement that such dying declaration in writing was given to him by Khair Muhammad. He did not know as to who in fact had handed over the statement to the Investigating Officer nor any such person was cited as a witness. A statement in writing given to the Investigating Officer is pregnant with strong doubt that it was written with consultations and prompting by someone interested in the matter and was not in fact the statement of Khair Muhammad. The scribe of such statement is unknown till today. Under the law it cannot be placed reliance upon.
The second statement Ex.PA/3 is in the form of statement under 161 Cr.P.C. It was never recorded in the presence of the doctor. It does not bear any date. The Investigating Officer admitted that he recorded Ex.PA/3 on the basis of already recorded statement Ex.PA-2. That it was handed over to him by some unknown person. Because of the aforesaid background Ex.PA/3 is a word-by-word reproduction of Ex.PA/2. Khair Muhammad had remained unconscious for quite some time and was so unconscious even when the Investigating Officer contacted him in the Lady Reading Hospital at Peshawar. The strong possibility cannot be ruled out, as rightly held by the High Court, that it could be the result of consultations and prompting by the relatives. This statement also cannot be relied upon as genuine dying declaration.
Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurrence. The one Haid Akbar who produced the same before the Investigating Officer was never produced at the trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence. It was never found on the spot alongwith other recoveries though there was no occasion for the injured and the deceased to have carried it along. There is no evidence as to how it came to the possession of Hamid Akbar, who was not produced.
In nutshell, we are convinced that the dying declarations in the instant case are not worthy of credence and cannot be placed reliance upon in a case of capital charge. We are also convinced that it was an unseen night occurrence where the identity of the accused could not be established. The respondents, therefore, were rightly acquitted. There being no force in the petition, it is hereby dismissed and leave to appeal refused.
(Javed Rasool) Leave refused.
PLJ 2006 SC 1417 [Appellate Jurisdiction]
Present: Ch. Ijaz Ahmed and Syed Jamshed Ali, JJ.
AMANAT KHAN and others--Petitioners
versus
NOOR-UR-REHMAN and another--Respondents
C.P. No. 239-P of 2002, decided on 17.5.2006.
(Against the judgment dated 1.4.2002 passed by High Court of
Peshawar in CR No. 296/1996)
Civil Procedure Code, 1908 (V of 1908)--
----S. 9--Constitution of Pakistan, 1973, Art. 185(3)--Jurisdiction of Civil Court--Held: Civil Court, as a Court of plenary jurisdiction, is competent to examine whether a tribunal of special jurisdiction has acted within the limits set out by the statute creating it and if the order brought under challenge before Civil Court is passed within the four corners of the statute only then clause ousting jurisdiction of Civil Court will become operative--Order passed by a functionary under a special law could hardly be said to have been passed under the Act to claim blanket protection. [P. 1421] B
Land Reforms Regulation, 1972 (MLR 115)--
----Para 26--Bar of jurisdiction--Held: Immunity would be available only to the orders which had been competently passed under the Land Reforms Regulation, 1972--Land surrendered under MLR 64 of 1959 had been utilized and was no more available to be dealt with under MLR 115, any allotment would clearly fall beyond the scope of the Regulations--Appeal allowed. [Pp. 1420, 1421 & 1422] A & C
PLD 1971 Pesh. 153; PLD 1993 Pesh. 60; 1993 SCMR 1469 and 1999 CLC 1883 ref.
Sh. Wazir Mahmud, ASC for Petitioners.
Mr. Abdul Sattar Khan, ASC and Mr. Zahoor Qureshi, AOR for Respondents.
Date of hearing: 17.5.2006.
Order
Syed Jamshed Ali, J.--The judgment dated 26.3.2002 of the learned Peshawar High Court has been assailed in this petition which arises out of the following circumstances.
On 5.4.1995, petitioners filed suit against the respondents claiming a declaration that they were owners in possession of land measuring 11 Kanals and 3 Marlas. Noor-ur-Rehman, Respondent No. 1, had nothing to do with the said land and the order of the allotment dated 19.6.1993 passed by the Deputy Land Commissioner in his favour followed by Mutation No. 22 dated 28.10.1993 was based on fraud, collusion, void and inoperative qua the rights of the petitioners. The basis of their claim was allotment of the said land in favour of Mehboob, their predecessor under MLR 64 of 1959.
Respondent No. 1 contested the suit and inter alia, raised the objection that the Civil Court had no jurisdiction. Vide order dated 24.10.1995, the plaint was rejected by the Civil Judge, Mardan on the ground that the suit was barred by law. The learned First Appellate Court, however, set aside the order of rejection of the plaint on the ground that Civil Court alone was competent to determine the question of title between the parties. Accordingly, the case was remanded to the learned trial Court. This remand order was challenged by Respondent No. 1 in CR No. 296/1996 which was allowed by the learned High Court vide judgment dated 1.4.2002 with the finding that under Paragraph 26 of the Land Reforms Regulation, 1972 (MLR 15), the Civil Court had no jurisdiction. The judgments of the Peshawar High Court in Central Government through the Income Tax Officer Dera Ismail Khan vs. Sher Muhammad Khan and others (PLD 1971 Peshawar 153), Muhammad Amin Khan and 6 others vs. The Central Government of Pakistan (PLD 1993 Peshawar 60) and Shah Nawaz vs. Umar Daraz and 9 others (1999 CLC 1883), were relied upon by the learned High Court.
The learned counsel for the petitioners submits that question of jurisdiction was essentially a mixed question of law and fact and could not have been summarily answered. Since the plaint disclosed a triable issue, it could not have been summarily rejected. His main thrust of the argument is that since the land in dispute was granted to the predecessor-in-interest of the petitioners under MLR No. 64 of 1959, it never framed part of the pool under Land Reforms Regulation 1972 (MLR-115) to be dealt with thereunder by any functionary constituted by the said Regulation. He submits that bar of jurisdiction of Civil Court will only be attracted if the order impugned before the Civil Court is shown to have been passed in accordance with law. In case of absence of jurisdiction, no immunity could be claimed. He placed reliance on Yousaf Ali vs. Muhammad Aslam Zia (PLD 1958 SC 104) and Abdul Rauf and others vs. Abdul Hamid Khan and others (PLD 1965 SC 671).
Mr. Abdul Sattar, ASC who has appeared for Respondent No. 1, on the basis of judgments noted by the learned High Court and Muhammad Hussain and 6 others vs. Malik Allah Ditta and 4 others (1993 SCMR 1469), submits that bar of jurisdiction contemplated by Paragraph 26 of the Land Reforms Regulation (MLR 115) has correctly been applied. He has also disputed the validity of the allotment in favour of Mehoob, predecessor-in-interest of the petitioners. Although he had reluctantly conceded that validity of the documents is a question that could only be determined after recording of evidence.
The submissions made have been considered. It will not be out of place to reproduce Para 26 of Land Reforms Regulation (MLR 115).
"Bar of jurisdiction.--No provision of this Regulation or of any rules or orders made thereunder shall be called in question in any Court including the High Court and the Supreme Court, or before any authority other than an authority appointed under this Regulation, and no such Court or authority shall have jurisdiction in respect of any matter which the Commission is empowered to determine.
(2) No such Court or authority as aforesaid shall be competent to grant any injunction or other order in relation to any proceedings before the Commission or before any officer exercising any power or discharging any function under this Regulation or the Rules or orders made thereunder, or in relation to anything done or intended to be done by or at the instance of the Commission or such officer."
(underlining is ours to supply emphasis)
"We are quite familiar with the words "under the Act" or "under Chapter ..... "No order is an order passed "under the Act" if it was not passed in exercise of powers granted by the Act and was therefore without jurisdiction. In a particular Act the words "under the Act" or "under Chapter ....." may not appear and words of similar import may be used. But whatever the phraseology employed, any provision of enactment saying that orders passed under the enactment or by virtue of the powers conferred by the enactment would not be liable to challenge in a Court of law has reference only to orders passed with jurisdiction. It can be stated as a general rule, without reference to the language used in an enactment, that barring provisions like those with which we are here concerned apply only to orders passed with jurisdiction."
Although the aforesaid case arose out of Frontier Crimes Regulation (No. III of 1901) yet a similar ouster clause in the aforesaid law was under examination. We may observe here that an order passed under the Act or an "order passed thereunder" used in Land Reforms Regulation No. 1972 (MLR-115) are synonymous. The question also came up before the learned Lahore High Court in Kassu Khan alias Ghulam Hassan Khan vs. Muhammad Amin and 6 others (PLD 1994 Lahore 24) in which the sweep of Para 26 of the Land Reforms Regulation No. 1972 (MLR-115) was considered:
"The Civil Court enjoys plenary jurisdiction under Section 9 of the C.P.C. Therefore, it was competent to entertain and decide the suit for permanent injunction filed by Allah Bakhsh deceased/plaintiff. As discussed above, the order, dated 17.11.1967 whereby the earlier order, dated 25.6.1959 was reviewed, was no order in the eye of law. It is non-speaking and arbitrary order and does not even indicate that the earlier order dated 25.6.1959 was being recalled or set aside."
The Civil Court as a Court of plenary jurisdiction is competent to assume initial jurisdiction to examine whether a tribunal of special jurisdiction has acted within the limits set out by the statute creating it and if the order brought under challenge before the Civil Court is passed within the four corners of the statute only then the clause ousting jurisdiction of the Civil Court will become operative. In case of absence or excess of authority, the order passed by a functionary under a special law could hardly be said to have been passed under the Act to claim blanket protection.
The judgments relied upon by the learned Peshawar High Court have been examined. In the case of Federal Government supra, the bar of Income Tax Act, 1922, was enforced against maintainability of a civil suit. In the case of Muhammad Amin Khan supra, the question involved was as to the bona fides a transaction under Para 7 of the Land Reforms Regulation No. 1972 (MLR-115) and the observation, by the learned Peshawar High Court was that it was within the competence of Land Commission authorities to determine. In case of Shah Nawaz supra, the first allottee under the Land Reforms Regulation No. 1972 was aggrieved of the allotment of the same land to another person which was assailed in a civil suit. The observation of the learned Peshawar High Court was as follows:
"Thus, the grant of land which vested in the Government under the Regulation is not an act which could be described as without jurisdiction without lawful authority or coram non judice."
However, in the instant case, the very applicability of the Land Reforms Regulation No. 1972 (MLR-115) is in question.
(Javed Rasool) Appeal allowed.
PLJ 2006 SC 1422 [Appellate Jurisdiction]
Present: Javed Iqbal, Muhammad Nawaz Abbasi & Syed Jamshed Ali, JJ.
ARBAB JEHANGIR KHAN and others--Appellants
versus
INAYATULLAH KHAN and others--Respondents
Civil Appeal No. 187 of 2002, decided on 30.3.2006.
(On appeal against the judgment dated 16.3.2001 passed by Peshawar High Court, Peshawar, in Civil Revision No. 131 of 2000).
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Land Reforms Regulation 1972 (MLR 115)--Para 28--Constitution of pakistan, 1973, Art. 185(3)--Ouster of--Jurisdiction of Civil Court--Rejection of plaint--Held--Order of Chief Land Commissioner was neither without jurisdiction nor coram non-judice and mala fides--Civil Court had no jurisdiction in the matter, so framing of issues would have been an exercise in futility--Appellants would have approached the forum concerned, available under MLR 115 instead of approaching civil Court--Plaint was rightly rejected by lower Courts--Appeal dismissed. [P. 1426] A & B
PLJ 1985 SC 202; AIR 1973 SC 1461; PLD 1994 SC 738; AIR 1980 SC 1789; AIR 1967 SC 1643; PLD 1976 SC 57; PLD 1977 SC 397; PLD 1989 SC 26; PLD 1983 SC 457; PLD 1975 SC 383; PLD 1989 SC 166; PLD 1975 Lah. 1250; PLD 1992 SC 646; PLD 1977 Kar. 604; 1993; SCMR 473; 1970 AC 379; PLD 1973 SC 49; PLD 1980 Lah. 206; 1974 SCMR 1177 & PLD 1973 SC 49, ref.
Sheikh Wazir Muhammad, ASC/AOR for Appellants.
Mian Mohibullah Kakakhel, ASC & Syed Safdar Hussain, (AOR) for Respondents.
Date of hearing : 30.3.2006.
Judgment
Javed Iqbal, J.--This appeal with leave to the Court is directed against the judgment dated 16.3.2001 passed by the Peshawar High Court, Peshawar whereby the civil revision petition preferred on behalf of appellants has been dismissed.
"This is a petition for leave to appeal against the judgment dated 16.3.2001 passed by the Peshawar High Court in Civil Revision No. 131 of 2000, whereby the rejection of plaint of the petitioners under Order VII, Rule 11 of the CPC made by the trial Court and the lower appellate Court was upheld, on the ground that it was a case of surrender, resumption and allotment of land under Martial Law Regulation 115 and hence the jurisdiction of Civil Court was barred.
(i) Under what conditions and with special reference to para-13 of MLR 115, the Civil Court does or does not have the jurisdiction.
(ii) Whether the provisions of Order 7, Rule 11 CPC were invoked by the Courts below under genuine circumstances and was the recording of evidence necessary even for the determination of question of jurisdiction.
(iii) What was the nature of title and possession of the suit land at the time of surrender and who among the parties was justified to surrender and with what effect.
Heard Sheikh Wazir Muhammad, learned ASC on behalf of appellants whose prime contention is that the plaint of the appellants could not have been rejected under Order 7, Rule 11 CPC without framing of issues and affording proper opportunity of hearing to appellants and besides that the provisions as enumerated in para-26 of MLR 115 have been misinterpreted and misconstrued. It is also argued that action of the Chief Land Commissioner whereby the land belonging to the predecessor of appellants was resumed being illegal and void the controversy could have been dilated upon and adjudicated by the Civil Court. In order to substantiate the said contention the learned ASC on behalf of appellants has referred the dictum as laid down in Abdul Rauf v. Abdul Hameed Khan (PLD 1965 SC 671).
Mian Mohibullah Kakakhel, learned ASC on behalf of respondents while controverting the view point as canvassed at bar by Sheikh Wazir Muhammad, learned ASC for appellants contended that no civil suit could have been filed in view of the provisions as contained in para-26 of MLR-115 which debars the jurisdiction of a Civil Court. It is also contended that the appellants should have approached the concerned authorities at appropriate time for the redressal of their grievances. In order to substantiate his contention reference has been made to Sher Zaman v. Muhammad Ishaq (PLJ 1985 SC 202).
We have carefully examined the rival contentions as mentioned above in the light of relevant provisions of MLR-115, thrashed out the entire evidence and perused the judgment impugned with care and caution. The pivotal question which needs determination would be as to whether the plaint could have been rejected under Order 7, Rule 11 CPC without framing of issues pursuant to the bar of jurisdiction as contained in para-26 of MLR-115? After having gone through the relevant provisions of law and record of the case we have no hesitation in our mind that the answer to the above question would be in affirmative for the simple reason that this controversy has not arisen at the first time but the same has already been set at naught by this Court in Sher Zaman v. Muhammad Ishaq (PLJ 1985 SC 202) relevant portion whereof is reproduced herein below for ready reference:--
"The argument of the learned counsel is that Paragraph 4(6) gives a power to the Commission to pass only general orders and not those, which are to be passed as decisions in individual cases. But there is nothing in the afore-quoted provision to support it. The expression "where any dispute arises" gives a clear indication that the dispute might be between two contesting parties which when becomes a genuine dispute, has to be referred to the Commission. In this case the perusal of the plaint filed by the appellant shows that a dispute had arisen between the parties thereto regarding the carrying into effect of the provisions of sub-paras (4) & (5) of Paragraph 24 of the Regulation. That being so, the dispute having been noticed by the Civil Court there is nothing wrong if the appellant-plaintiff has been referred to the Commission for the resolution of the dispute raised before the Civil Court. This, it is not contended, was not permissible under the Civil Procedure Code or by Specific Relief Act where-under the suit was filed in the Civil Court. Although depending upon the circumstances of each case as observed in some judgments, the Civil Court might decide a dispute which is to go before the Commission but that would not mean that the Commission cannot deal with the same under Paragraph 4(6) of the Regulation. This Court has in several cases clarified the jurisdiction question. They are, amongst others: Mst. Bibi Avesha v. Chief Land Commissioner, West Pakistan (PLD 1966 SC 84), Mst. Hajiani v. West Pakistan Land Commission (PLD 1966 SC 114); K.B. Mian Feroze Shah v. Nawabzada Muhammad Umar Khan (PLD 1966 SC 340), Nawab Haji Khair Muhammad Khan v. The State (PLD 1966 SC 604); Nawab Muhammad Farid Khan v. Muhammad Afzal Khan (1968 SCMR 262), Nasir Ahmad Khan v. Mst. Ismat Jehan Begum (1968 SCMR 667), Mst. Ahmedi Begum v. Muhammad Mushtaq Ali Khan (PLD 1971 SC 736), Haji Ali Bux Khan v. The Chief Land Commissioner, West Pakistan (1974 SCMR 98), Mst. Hamida Begum v. Mst. Murad Begum (PLJ 1976 SC 44), Muhammad Umar v. Mr. S.M. Nasim, Member Board of Revenue (N.L.R. 1982 Revenue 89). It may also be explained that some case which come before the High Court and the Supreme Court in the writ jurisdiction of the High Court might have to be treated differently (as in the last mentioned case of Muhammad Umar (NLR 1982 Rev. 89) than a case coming through the Civil Court. While deciding the matter under Constitutional jurisdiction of the High Court the superior Courts are to be guided by several considerations including those relatable to the Regulations itself. This aspect of the Constitutional jurisdiction has been highlighted into recent judgments of this Court in Federal Land Commission v. Mst. Zarin Qasha (PLJ 1984 SC 299) and, Federal Land Commission, Islamabad v. Said Rehmat Shah (PLJ 1984 SC 302). With regard to the jurisdiction of the Civil Courts, no doubt it has to be remarked that as held by this Court earlier in several cases, these Courts would be competent to decide various questions but subject to the condition that where the Commission is also competent to determine a matter the final decision shall always remain of the Commission. This rule finds practical illustration in two of the above-referred cases: One, Mst. Hamida Begum's case where the question regarding incompetence of the Commission to determine a question was high-lighted; and two, the case of Nasir Ahmad Khan were this Court kept an appeal pending adjourning it sine die with a view to enable the appellant therein to get "a decision in his favour from the Chief Land Commissioner upholding his objection as to the validity of the transaction". The present case is covered by that rule. The difference being that the Civil Court returned the plaint to the appellant for presenting it before the Land Reform Forum."
The question of jurisdiction was also discussed in Sabir Shah v. Federation of Pakistan (PLD 1994 SC 738) wherein it was held that "even if the impugned act or action has been protected by Constitutional provision by ouster clause, the superior courts still have the jurisdiction to interfere with in the three categories of cases, namely, without jurisdiction, coram non judice and mala fides. Notwithstanding an ouster clause in the Constitution or in any other statute, the Courts have jurisdiction in the above three categories of cases." (L.C. Golak Nath and others v. State of Punjab AIR 1967 SC 1643 His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala AIR 1973 SC 1461, Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789, Islamic Republic of Pakistan through Secretary, M/o Interior & Kashmir Affairs, Islamabad v. Abdul Wali Khan PLD 1976 SC 57, Federation of Pakistan through the Secretary, Ministry of Finance, Government of Pakistan, Islamabad etc. v. United Sugar Mills Ltd., Karachi PLD 1977 SC 397, Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457, Federation of Pakistan v. Haji Muhammad Saifullah Khan PLD 1989 SC 166, Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan PLD 1992 SC 646, Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473, The State v. Ziaur Rehman PLD 1973 SC 49, Federation of Pakistan v. Saeed Ahmad Khan PLD 1974 SC 151, Federation of Pakistan v. Malik Ghulam Mustafa Khar PLD 1989 SC 26, Sindh Quality Ckntrol Board of Drug. Pioneer Laboratories, Karachi 1993 SCMR 1177, Ch. Zahur ilahi, v. Zulfikar Ali Bhutto PLD`1975 SC 383, Amanullah Khan v. The Federal Government of Pakistan 1990 SC 1092, Malik Muhammad Suleman v. Islcmic Republic of Pakistan PLD 1976 Lah. 1250, Niaz Ahmed Khan v. Province of Sindh PLD 1977 Kar. 604, Stephen Kalong Ningkan v. Government of Malaysia 1970 SC 379, Darvesh M. Arbey, Advocate v. Federation of Pakistan PLD 1980 Lah. 206, State v. Ziaur Rehman PLD 1973 SC 49."
On the touchstone of the criterion as mentioned herein above the controversy in hand could not have been resolved by the learned civil Judge as the order passed by the Chief Land Commissioner, NWFP Peshawar was neither without jurisdiction, nor coram non judice and mala fides. It is worth mentioning that jurisdiction of Civil Court has been ousted in a categoric manner by the provisions as contained in Para-26 of MLR-115 and pursuant whereof plaint has been rejected under Order 7, Rule 11 CPC. The question of jurisdiction was not controversial as such the framing of issues would have been an exercise in futility. the appellants should have approached the forum concerned available under the hierarchy of MLR-115 for the redressal of their grievances instead of approaching the Civil Court as the controversy does not fall within its domain of jurisdiction. In so far as the dictum as laid down in Abdul Rauf's case (supra) is concerned it hardly renders any assistance to the case of appellants as it was given in a different context while examining the provisions as contained in Sections 8, 10 and 60 of the Frontier Crimes Regulation (III of 1901) whereby it was held that if the impugned action is not in accordance with the provisions of the Frontier Crimes Regulation (III of 1901) that can be assailed before the Civil Court.
In the light of what has been stated above the judgment being unexceptionable does not warrant interference. The appeal being devoid of merit is dismissed.
(Javed Rasool) Appeal dismissed.
PLJ 2006 SC 1427 [Appellate Jurisdiction]
Present: Rana Bhagwandas, Khalil-ur-Rehman Ramday & Nasir-ul-Mulk, JJ.
MUHAMMAD UMAR WAHID etc.--Petitioners
versus
UNIVERSITY OF HEALTH SCIENCE LAHORE etc.--Respondents
Civil Petition No. 45 of 2006, decided on 26.1.2006.
(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench Bahawalpur, dated 10.11.2005 passed in Writ Petition No. 2029 of 2005.
Pakistan Medical & Dental Council Regulations, 1998--
----S. 4(3)--Statutes and Regulations of the University of Health Sciences, Lahore 2004, Regul. 3--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Non promotion of the MBBS students to the next higher class--Held: S. 3 of the Regulations 2004 was applicable to all the medical colleges falling under its authority, which imposed a bar on the promotion of students to the second year until all the subjects in the first professional Part-1 examination have been cleared--Leave refused. [P. 1428] A
PLD 2004 Pesh 307, referred.
Sardar Muhammad Rafiq Khan, ASC for Petitioners.
Nemo for Respondents.
Date of hearing : 26.1.2006.
Judgment
Nasir-ul-Mulk, J.--By a common judgment the Lahore High Court on 10.11.2005 dismissed fourteen Writ Petitions filed by students of Quaid-i-Azam Medical College, Bahawalpur questioning the orders of the principal of the College disallowing them to appear in the examination of the next higher class on the ground that they had not cleared the subjects of the previous classes. The petitioners, seven in number, who have filed this petition for leave to appeal were studying in the first year MBBS, were admitted to the College in the Session 2003-2004 and had impugned order of the principal dated 6.6.2005, which specifically related to them. The High Court had for the dismissal of the Writ Petitions relied upon Regulation No. 3 of the Statutes and Regulations for MBBS first, second, third and final professional, examinations, made by the UNIVERSITY of Health Sciences, Lahore published by Notification on 14.7.2004, which reads:--
"A candidate who passes in one or more subjects but fails in the annual examination shall, if he/she so desires, provisionally be allowed to joint second year MBBS class till the commencement of supplementary examination. The candidate, however, shall have to pass the failed subjects in this supplementary examination filing which he/she shall be detained in the first year. Under no circumstances a candidate shall be promoted to the second year MBBS till he/she has previously passed all the subjects in the First Professional Part-I Examination".
Mr. Sardar Muhammad Rafiq Khan, ASC appearing for the petitioners contended that the above Regulation violated the corresponding provisions in the Regulations of the Pakistan Medical and Dental Council (PM & DC) and thus the same must give way to the later. The learned counsel further cited a judgment of the Peshawar High Court in Alaptagin versus Principal, Saidu Sharif Medical College, Swat, etc. (PLD 2004 Peshawar 307) and contended that the first professional MBBS has been split into two parts, Part-I and Part-II, and the two parts together shall be considered as one class for the purpose of the bar regarding the clearance of all subjects of one class before being promoted to the next higher class.
The relevant provisions on which reliance is placed by the learned counsel for the petitioners is contained in Clause 3 of Section-IV of the P.M.D.C Regulations dated 22.3.1998 which states that "No student can be promoted to the higher classes unless he passes all the subjects of the previous classes". In Alaptagin case (ibid) the Peshawar High Court had, while interpreting a provision in the prospectus issued by the Provincial Health Department for regulation of admission and examination in Medical Colleges, held that in the light of the above Regulation of P.M.D.C. promotion to Part-II of the first professional examination cannot be withheld on account of the students failure to pass the subjects of part-I examination. The said judgment turned on the interpretation of the relevant provision in the prospectus and cannot be cited as laying down a general principle. In the present case Regulation No. 3 of the Statutes and Regulations of the University of Health Sciences, Lahore, dated 14.7.2004, reproduced above, which admittedly is applicable to all the Medical Colleges falling under its authority, in unequivocal terms imposes a bar on the promotion of students to the second year until all the subjects in the first professional Part-I examination have been cleared. The said provision is not only not in conflict with the restrictions imposed by the P.M.D.C., but is a step further in achieving the objects for which the provision was incorporated, namely, to strengthen the academic competency of the students. Finding no error in the conclusion drawn by the High Court no case for leave to appeal is made out. The petition is dismissed and leave declined.
(Javed Rasool) Petition dismissed.
PLJ 2006 SC 1429 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi & Saiyed SAeed Ashhad, JJ.
ABDUL MAJEED, Ex.A. XEN (B&R), E-IN-C'S BRANCH, GHQ, RAWALPINDI--Petitioner
versus
GOVT. OF PAKISTAN through SECRETARY ESTABLISHMENT DIVISION & others--Respondents
C.P. No. 1570 of 2003, decided on 24.1.2006.
(On appeal from the judgment dated 20.6.2003 passed from Federal Service Tribunal, Islamabad in Appeal No. 676 (R) CS/2002).
(i) Civil Servants Act, 1973 (LXXI of 1973)--
----S. 13(1)(i)--Constitution of Pakistan, 1973, Art. 212(3)--Retirement from service on the ground that he was censured and awarded punishment of withholding one increment--Appeal dismissed by Federal Service Tribunal--Assailed--Validity--As per instructions contained in the guidelines issued by the Establishment Division, two or more penalties imposed upon a civil servant might provide a ground for retirement--Civil servant was imposed only penalty of censure and the competent authority, in departure to the instructions, proceeded to retire him from service--Competent authority might subject to the fulfillment of the criteria laid down by Establishment Division invoke such special provision but the discretionary power provided therein must not be exercised without sufficient material and valid ground--Except one penalty of censure, petitioner had a clean service record and there was no adverse entry or remarks in his ACRs in respect of his responsibility, integrity, reliability, output of work and behaviour with the public--Petition converted into an appeal and allowed with direction that appellant shall be re-instated in service. [P. 1431] B, C & E
(ii) Civil Servants Act, 1973 (LXXI of 1973)--
----S. 13(1)(i)--Constitution of Pakistan, 1973--Art. 212(3)--Censure--Effect of such penalty--Held: Censure was minor penalty of the sort of warning which might not have a serious stigma effecting the service career of a person--Single penalty of censure cannot be considered sufficient for invoking the provisions of Section 13(1)(i) of the Act. [Pp. 1430 & 1431] A
(iii) Constitution of Pakistan 1973--
----Art. 9--Civil Servants Act, (LXXI of 1973), S. 13(1)(i)--Retirement from service in public interest--Penalty of--Retirement in normal circumstance could not call for interference but the retirement of a person on whimsical grounds amounts to deprive him from the legitimate right of earning which was a part of fundamental rights in terms of Art. 9 of the Constitution and is definitely not in the public interest. [P. 1431] D
Mr. Fazal Elahi Siddiqi, ASC and Ch. Muhammad Akram, AOR for Petitioners.
Ms. Nahida Mehboob Elahi, DAG and Raja Abdul Ghafoor, AOR for Respondents Nos. 1 to 3.
Date of hearing : 24.1.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 212(3) of the Constitution has been directed against the judgment dated 20.6.2003 passed by Federal Service Tribunal whereby the appeal filed by the petitioner against the order of his retirement under Section 13(1)(i) of the Civil Servants Act, 1973 passed by the competent authority was dismissed.
The relevant facts in the background giving rise to this petition are that a show cause notice under Section 13(1)(i) of the Civil Servants Act, 1973 was issued to the petitioner on 20.11.2001 for retirement on the grounds, firstly that he was censured on 18.1.1973 for disobedience of the order of Garrison Engineer and secondly he was awarded punishment of withholding of one increment for one year in 1979 for failure to supervise the work efficiently. The petitioner submitted reply to the show cause notice and the competent authority having considered his reply in the light of relevant provisions, passed the order of his retirement which was communicated to him vide letter dated 9.4.2002. The petitioner having exhausted the departmental remedy, filed an appeal before Federal Service Tribunal which was dismissed by the Tribunal vide impugned judgment.
Learned counsel for the petitioner has contended that penalty of censure was awarded to the petitioner in 1973, whereas the order of stoppage of one increment passed in 1979 was not implemented and after that the petitioner has satisfactorily rendered about 23 years of service, therefore, the penalties referred above would not provide a valid ground for invoking the provisions of Section 13(1)(i) of the Civil Servants Act, 1973 at this belated stage and argued that in absence of a strong and valid ground, based on sufficient material, exercise of power under Section 13(1)(i) of the Civil Servants Act, 1973 was not justified. The Learned Deputy Attorney General on the other hand, has argued that the review committee headed by Secretary Ministry of Defence having made scrutiny of the service record of the petitioner considered it proper to retire him from service in the public interest and the order passed by the competent authority under above provision of law in the public interest, would not be questionable.
The censure is minor penalty of the sort of warning which may not have a serious stigma effecting the service career of a person and in any case the single penalty of censure cannot be considered sufficient for invoking the provisions of Section 13(1)(i) of the Civil Servants Act, 1973. The departmental representative present in Court has informed us that the order of withholding of one increment of the petitioner, passed in 1979 was not given effect and consequently, it would be deemed that the penalty of stoppage of one increment was waived. In the light of the instructions contained in the guidelines issued by the Establishment Division, two or more penalties imposed upon a civil servant under Government Servants (E&D) Rules, 1973 may provide a ground for his retirement under Section 13(1)(i) of the Civil Servants Act, 1973 whereas in the present case, the petitioner was imposed only one penalty of censure and the competent authority, in departure to the instructions of Establishment Division, proceeded to retire him from service. The competent authority, may subject to the fulfillment of the criteria laid down by the Establishment Division invoke this special provision but the discretionary power provided therein must not be exercised without sufficient material and valid ground. The discretion of the competent authority under this provision of law being not absolute, must not be exercised beyond the wisdom of the legislature and deprive a person from the legitimate right of service. The purpose is that if further retention of a person in service is not useful or is not in the public interest, the competent authority may in the light of the criteria laid down by the Establishment Division, exercise this power but the retirement of a person under this provision just for the sake of exercise of discretion, is not in the spirit and wisdom of law. In the present case, except one penalty of censure, the petitioner had a clean service record and there was no adverse entry or remarks in his ACRs in respect of his responsibility, integrity, reliability output of work and behaviour with the public or his conduct as civil servant which may bring his case within the ambit of Section 13(1) (b) (i) of Civil Servants Act, 1973. The retirement in the normal circumstances may not call for interference but the retirement of a person on whimsical grounds amounts to deprive him from the legitimate right of earning which is part of fundamental rights to live in terms of Article 9 of the Constitution and is definitely not in the public interest.
In the light of forgoing reasons, we convert this petition into an appeal and allow the same with direction that appellant shall be reinstated in service but the claim for payment of salary for the intervening period will be subject to the result of the inquiry to be held by the competent authority to ascertain as to whether he was jobless or has been engaged in any service or business. The appellant in support of his claim for payment of salaries, will furnish an affidavit and the competent authority in the light of relevant material, will determine the question regarding his entitlement for the payment of salaries for the period during which he remained out of service. This appeal is accordingly allowed with no order as to cost.
(Sh. Zulfiqar Ahmad) Appeal allowed.
PLJ 2006 SC 1432 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Muhammad Nawaz Abbasi, JJ.
ZULFIQAR ALI & 3 others--Petitioners
versus
BARKAT ALI & others--Respondents
Civil Petition No. 1873 of 2005, decided on 16.5.2006.
(On appeal against the judgment dated 11.4.2005 passed by Lahore High Court, Lahore in RSA No. 61/89).
Transfer of Property Act, 1882 (IV of 1882)--
----S. 41--Constitution of Pakistan, 1973, Art. 185(3)--Suit for specific performance contract--Bona fide purchaser--Entitlement--Held: Purchased property from the real owner without any defect in their title and free from all encumbrances, therefore, notwithstanding the subsequent acknowledgement of claim of petitioners by vendees-respondents--Right of title and interest of respondents-purchaser, would be protected on all force under the law because respondent had no authority to enter into an agreement with the petitioners beyond his share in the property. [P. 1433] A
Sardar Liaquat Ali, ASC for Petitioners.
Nemo for Respondents.
Date of hearing : 16.5.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 185(3) of the Constitution has been directed against the judgment dated 11.4.2005 passed by Lahore High Court, Lahore whereby regular second appeal arising out of a suit for specific performance of the contract was dismissed.
The short facts in the background giving rise to this petition are that Barkat Ali, co-allottee of Respondents Nos. 1 to 11 of the suit land, subject-matter of dispute on 25.1.1979 entered into an agreement of sale of land with the petitioner for consideration of Rs. 80,000/- and having received an amount of Rs. 40,000/- as earnest money, delivered to them the possession of land. It was settled in the agreement that Barkat Ali would obtain power of attorney from his co-sharers and balance price would be paid at the time of registration of sale-deed. However, the sale agreement could not be materialized for want of execution of power of attorney by the co-sharers of Barkat Ali in his favour and meanwhile Muhammad Shafi, respondent herein, in his capacity as general attorney of Respondents Nos. 1, 2 and 13, executed registered sale-deed in favour of Respondents Nos. 12 & 13 whereupon the petitioners on the basis of their agreement dated 25.7.1979, filed suit for specific performance of the contract. The claim of the petitioner was conceded by Respondents Nos. 1 to 7 and 10 whereas Respondents Nos. 12 & 13 contested the suit with the assertion that they were bona fide purchaser for value without notice and also denied the validity of sale agreement in question. The suit was dismissed by the learned trial Judge vide judgment dated 16.6.1984 and the appeal filed by petitioners was also dismissed by learned District Judge, Layyah, vide judgment dated 25.4.1989. The regular second appeal filed by the petitioners in the High Court was dismissed with the observation, firstly that petitioners failed to deposit expenses for publication for service of respondents, secondly, the agreement on the basis of which suit was filed, was executed by one of the respondent, namely Barkat Ali as co-shares in the property without any authority to enter into such an agreement on behalf of the other co-sharers and consequently, the agreement would not be binding on the co-sharers, who are not party to it and thirdly, the property was purchased by the Respondents Nos. 12 & 13 for valuable consideration free form all encumbrance and without notice of the agreement in question.
Learned counsel for the petitioners has contended that the respondents in their written statement, having acknowledged the execution of agreement, conceded their claim to the extent of their share, therefore, suit was wrongly dismissed.
This is an admitted fact that respondents, who have conceded the claim of petitioners in the written statement were not party to the agreement on the basis of which suit was filed and this is also admitted that Khushi Muhammad, respondent, holding a valid power of attorney, transferred the suit land in favour of Respondents Nos. 12 & 13 before filing of suit by the petitioners therefore, the subsequent acknowledgement of agreement of petitioners with Barkat Ali by the respondents, in their written statement would neither effect the transaction of sale in favour of Respondents Nos. 12 & 13 who where bona fide purchaser for valuable consideration nor the sale would be hit by the principle of lis pendens and apart from the provision of Section 41 of Transfer of Property Act, 1882 by virtue of which right of a bona fide purchaser subject to the conditions contained therein is protected in law, the right of transferor in the present case would be protected by the general principle of law according to which a person cannot transfer right or title in the property more than what he possesses whereas the principle contained in Section 41 of Transfer of Property Act, 1882 is an exception to the general rule which is based on equitable doctrine of estopple. In the present case, the Respondents Nos. 12 & 13, purchased the property from the real owner without any defect in their title and free from all encumbrances, therefore, notwithstanding the subsequent acknowledgement of claim of petitioners by the vendees-respondents, the right, title and interest of respondents-purchaser, would be protected on all force under the law because Barkat Ali had no authority to enter into an agreement with the petitioners beyond his share in the property. The learned counsel for the petitioners has not been able to satisfy us that the judgment of tie High Court in the given facts, was suffering from any defect of misreading or non-reading of evidence or any other legal or factual infirmity calling for interference of this Court.
(Fouzia Fazal) Petition dismissed.
PLJ 2006 SC 1434 [Appellate Jurisdiction]
Present: Javed Iqbal & Nasir-ul-Mulk, JJ.
SARDAR MUHAMMAD, etc.--Petitioners
versus
Mst. SHARIFAN BIBI--Respondent
Civil Petition No. 1933 of 2004, decided on 3.3.2006.
(On appeal from judgment dated 31.5.2004 of the Lahore High Court, Lahore passed in C.R. No. 3069 of 1994).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Point which has not been urged before the lower Courts and was not mentioned in petition for leave to appeal could not be allowed to be raised at the hearing of the petition--There would be no substantial change even the gift was considered annulled for the reasons--Petitioners had no cause of action whatsoever when the gift was already restricted to the lawful share and hence the question of annulment of the gift did not arise which was never challenged by the predecessor-in-interest of the petitioner but admitted impliedly which culminated into a compromise between the predecessor-in-interest of the Petitioners--Leave refused. [Pp. 1436 & 1437] A & B
Mr. Saleem A. Rehman, ASC and Mr. Mehr Khan Malik, AOR for Petitioners.
Nemo for Respondent.
Date of hearing : 3.3.2006.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 31.5.2004 whereby the revision petition preferred on behalf of petitioners has been dismissed.
Precisely stated the facts of the case are that "Fazal Din/original right-holder was owner in possession of 286 Kanals 6 Marlas of land in Revenue Estate Chak No. 282/RB known as Abdullahpur Collar, Tehsil and District Sheikhupura. On his demise he was survived by Mst. Hussain Bibi widow, Bulanda brother, Mst. Akki and Amir Bibi as sister. The legacy of Fazal Din was mutated in favour of Mst. Hussain Bibi vide Mutation No. 192 which was attested on 26.2.1946 as a limited owner. Bulanda filed a suit, seeking declaration that the property had devolved Mst. Hussain Bibi for the purposes of maintenance and she was not absolute owner of the same. This suit was filed some where in 1958 and during its proceedings, the case was compromised and Mst. Hussain Bibi was given 82 kanals 6 marlas while Bulanda was given 20 kanals 5 marlas of land left by Fazal Din. However, this was not the end of the matter. The heirs of Mst. Akki and Amir Bibi came to the scene of litigation, as they filed a suit for declaration that the consent decree dated 19.11.1958 was collusive and was not binding upon them and so it be set aside. This suit was contested and was finally decreed on 27.11.1959. The appeal filed by the heirs of Bulanda was dismissed by the appellate Court on 16.10.1978. It is not disputed between the parties that successor's of Bulanda could not succeed before this Court as well as the Honourable Supreme Court. Another circumstances, which is worth noting, is that during the pendency of the RFA, before this Court, Mst. Hussain Bibi gifted away her share of 82 kanals 6 marlas which came to her by compromise decree dated 19.12.1958 to one Mst. Sharifan Bibi who was her adopted daughter. Then the parties made arrangement to get this gift deed confirmed through the Court and so a Mutation No. 314 was attested on 26.2.1965. The consent decree was passed on 9.4.1963. Mst. Hussain Bibi died on 31.12.1970. This was the launching point for the present litigation. Sardar and others herein petitioners, who are legal heirs of Bulanda got Mutation No. 442 attested on 14.5.1983. Feeling dissatisfied Mst. Sharifan Bibi then filed an appeal which was accepted and the case was remanded. Pursuant to it, again the revenue officer repeated the same order and the same was again remanded. It will be futile to note that this litigation has no bearing on the case in hand, except that the A.C. was directed to approach the Civil Court. The Civil Court maintained the first mutation. Against this appeal and revision failed up to the Revenue hierarchy and the Board of Revenue ultimately passed the order dated 3.6.1989. In this factual background, Sardar and 11 others instituted a suit for declaration to the effect that they were owners in possession of 82 kanals 6 marlas which fell to the share of Mst. Hussain Bibi as they were the legal heirs of Fazal Din and the widow being the limited owner, had no right to gift this property. The suit was contested by Mst. Sharifan Bibi, Respondent No. 1 being defendant in the suit by filing her written statement wherein she besides raising certain preliminary objections regarding maintainability of the suit, jurisdiction of the Civil Court, estoppal against the petitioners, res-judicata, cause of action, valuation of the suit for the purposes of Court fee and jurisdiction, limitation and that suit is not maintainable under Order XXIII C.P.C. On merits it was pleaded that under a compromise, specific khasra numbers were given to Mst. Hussain Bibi by the predecessor-in-interest of the petitioners and Mst. Hussain Bibi was admitted as a perfect owner of the land so given to her. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter, after doing the needful, vide his judgment and decree dated 13.3.1993 dismissed the suit of the petitioners." Being aggrieved an appeal was preferred by the petitioners which was dismissed by means of order dated 1.6.1994 by the learned Additional District Judge which was assailed by way of revision which met the same fate vide judgment impugned, hence this petition.
Mr. Saleem A. Rehman, learned ASC entered appearance on behalf of petitioners and pointedly asked at the outset that how the petitioners could get any share from the gifted property restricted to ¬ Shari'a share of Mst. Hussain Bibi. The learned ASC on behalf of petitioners while conceding that it could not have been done simultaneously urged with vehemence that Mst. Hussain Bibi got more than ¬ share and the petitioners are claimant for the excessive land got by Mst. Hussain Bibi as a result of wrong calculation. It is wroth mentioning that the plea of "wrong calculation" has been taken after lapse of a few decades that too without any concrete base. This specific point was never agitated before any forum available in the hierarchy of revenue laws. In fact it was never the case of petitioners that they were deprived of their legal share as excessive land was devolved upon Mst. Hussain Bibi pursuant to the gift. It transpired from the scrutiny of record that the case of petitioners before the High Court was that the learned trial Court had not framed the proper issues and more so the evidence could not be appreciated in its true perspective which resulted in serious miscarriage of justice. It is amazing that new plea press into service even does not find mention in the memorandum of petition for leave to appeal. It is well settled by now that "a point which has not been urged before the lower Court and is not mentioned in petition for leave to appeal cannot be allowed to be raised at the hearing of the petition." In this regard we are fortified by the dictum laid down in case of Muhammad Ibrahim v. Allah Bakhsh (1968 SCMR 143), Ghulam Haider v. Settlement Commissioner (1972 SCMR 599). The learned ASC has attempted to portrait altogether a new case which we are afraid cannot be done at this belated stage. There is no cavil with the proposition that "where points formulated for consideration were not urged before High Court and High Court did not express any opinion thereon, Supreme Court refused to allow such points to be raised at appeal stage before the Supreme Court." In this regard reference can be made to case of Begum Zahoorul Haq v. Muhammad Younus (1985 SCMR 1657). This new strategy has probably been evolved to frustrate the object of "gift", validity whereof has been determined and a past and closed chapter cannot be reopened which was all the most settled by this Court vide judgment dated 24.2.1985. It would not be out of place to mention here that the validity of gift was also challenged by means of writ petition preferred by one Khalid Naqvi which was dismissed by the learned High Court and it was held in a categoric manner that the gift in favour of Mst. Sharifan Bibi was neither illegal nor inoperative. The validity of gift has been questioned as per learned ASC on behalf of petitioner it is yet to be determined which is not correct and the said contention has been made in oblivion of the fact that pursuant to that judgment a compromise was executed between the predecessor-in-interest of the petitioners and resultantly mutations of specific Khasra number were sanctioned in favour of Mst. Hussain Bibi which remained intact. No doubt that the petitioners are successors of Fazal Din but how the land in question exclusively belonged to Mst. Hussain Bibi devolved upon her under Islamic Law to the extent of ¬th share could be given to the petitioners who are admittedly not her legal heirs. There would be no substantial change even the gift is considered annulled for the reasons as mentioned above. The petitioners had no cause of action whatsoever when the gift was already restricted to the lawful share of Mst. Hussain Bibi and hence the question of annulment of the gift does not arise which was never challenged by the predecessor-in-interest of the petitioners but admitted impliedly which culminated into a compromise between the predecessor-in-interest of the petitioners and Mst. Hussain Bibi.
In view of what has been stated herein above the petition being devoid of merits is dismissed and leave refused.
(Fouzia Fazal) Leave refused.
PLJ 2006 SC 1437 [Appellate Jurisdiction]
Present: Ch. Ijaz Ahmed & Syed Jamshed Ali, JJ.
HIDAYATULLAH and others--Petitioners
versus
STATE through ADVOCATE GENERAL NWFP, PESHAWAR--Respondent
Criminal Petitions Nos. 105, 106 & 115-P of 2005, decided on 5.5.2006.
(Against the judgment dated 17.8.2005 passed by Peshawar High Court in Crl. Misc. Q Nos. 87, 132 & 87 respectively).
(i) Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 63, 195(1)(c), 561-A & 439-A r/w S. 435--Pakistan Penal Code, 1860 (XLV of 1860)--Ss. 419, 420,468 & 471--Discharge of accused--It is the discretion of magistrate concerned to pass order u/S. 63 of Cr.P.C. to discharge the accused persons--However, the discretion must be exercised by concerned magistrate justly, fairly and in case discharge order was passed by magistrate mechanically without application of his independent mind to the facts of the case, perversity of reasoning and adoption of a procedure which offenders against letter and spirit of law relating to discharge, then High Court has ample jurisdiction to interfere and set aside such an order u/s 561-A of Cr.P.C.--Order passed by magistrate is of administrative nature--Same of the powers of the magistrate are administrative, executive or ministerial and he discharges these duties not as a Court but as a persona designata--Petitions dismissed. [Pp. 1441 & 1442] A & B
Mr. Abdul Samad Khan, ASC and Mr. Adam Khan, AOR for Petitioners (in all cases).
Mr. Tasleem Hussain, ASC for State.
Mr. Javed A. Khan, ASC for Complainant (in all cases).
Date of hearing : 5.5.2006.
Order
Ch. Ijaz Ahmed, J.--We intend to decide the captioned petitions by one consolidated order as these arise out of the same impugned judgment of the Peshawar High Court dated 17.8.2005.
The detailed facts have already been mentioned in the impugned judgment. However, necessary facts out of which the present petitions arise are that Faqir Gul and Naimatullah, brothers inter-se, preferred a complaint addressed to the Director Anti-Corruption Peshawar for taking punitive action under the law against their brother Hayadayatullah, Shakeel Ahmed petition written concerned record keeper and concerned incharge record room. The contents of complaint reveal that House No. 770/2961 in question is the legacy of their father and his legal heirs are co-sharers in the disputed house. Petitioners allegedly prepared collusive, fictitious, in effective and fraudulent deed in the preceding date on a stamp paper allegedly signed by the stamp vendor who had already died and prepared relinquishment deed dated 12.10.1998 on behalf of the complainant which was forged and fraudulent. The complaint was inquired into and on the basis of findings of the inquiry FIR No. 2 of 2005 was registered at police station ACE, Peshawar, under Sections 419, 420, 468, 471 PPC read with Section 5(2) PC Act on 29.1.2005. The learned judicial magistrate, however, discharged the petitioners u/S. 63 of Code of Criminal Procedure 1898 vide orders dated 1.2.2005 on the ground that respondents have filed suit for declaration against the petitioners and seven others in the Civil Court Peshawar wherein petitioners and others filed written statement on 27.5.2004 and relied on relinquishment deed dated 12.10.1998 in reply to para 6 of the plaint. The said suit is pending adjudication and said document was produced by petitioners/defendants during proceedings pending before competent Civil Court and that complaint could only be filed by the Court in view of Section 195 (1)(c) of the Cr.P.C.
The state and complainants being aggrieved filed revision petitions under Section 439-A read with Section 435 Cr.P.C, in the Court of Additional Sessions Judge, Peshawar who dismissed the same vide consolidated order dated 19.3.2005. Respondents being aggrieved filed petitions under Section 561-A of Cr.P.C. in the Peshawar High Court which were accepted vide impugned judgment dated 17.8.2005. Hence, the present petitions.
The learned counsel for the petitioner submits that learned magistrate had discharged the petitioner under Section 63 of Cr.P.C., therefore, petitions filed by the respondents before the Peshawar High Court were not maintainable, learned High Court had mis-understood the facts of the case as the respondent had already filed a suit against the petitioner in the Civil Court wherein petitioner had filed written statement whereas the learned High Court has mentioned in the impugned judgment that suit was not filed, the impugned judgment of the High Court was not in consonance with the law laid down by the superior Courts. He strenously pressed the bar of Section 195(1) (c) Cr.P.C, to the registration of the criminal case. In support of his contention, he relied upon the following judgments:--
(i) Rasool Khan & others v. Haji Banaras Khan & others (PLD 2004 SC 364);
(ii) Ashiq Hussain vs. Sessions Judge Lodhran & 3 others (PLD 2001 Lahore 271);
(iii) Abdul Wahab Khan vs. Muhammad Nawaz & 7 others (2000 SCMR 1904).
The learned counsel for the respondents submits that learned High Court had passed the impugned judgment after considering all the pleas raised by the learned counsel for the petitioners. The judgments relied upon by the petitioner were duly considered by the learned High Court and it was held that the cited judgments were not applicable to the case in hand on account of distinguishable features.
We have given our due consideration to the contentions of the learned counsel of the parties and perused the record. The learned High Court had distinguished the first two cases cited by the counsel for the petitioners (PLD 2004 SC 364 and PLD 2001 Lahore 271) in para 16 of the impugned judgment. Abdul Wahab Khan's case supra relied upon by the learned counsel for the petitioners is also distinguishable. Facts of the cited judgment are that appellant who had been performing his duties as special magistrate WAPDA filed a private complaint against the respondents namely Muhammad Nawaz, Ex-Director etc. under Sections 411, 381, 109, 166, 171, 166, 477-A, 201, 161, 167 PPC and Section 5(2) of Prevention of Corruption Act, 1947, in the Court of learned Special Judge, Anti-Corruption Lahore on 1.11.1990 where in various serious allegations of corruption, tempering with official record, theft of judicial files with ulterior motive and receiving of an amount of Rs. 30,000/- in lieu of alleged sale of judicial files were levelled against the respondents. The learned Special Court after, recording statement of complainant, dismissed the complaint by order dated 1.11.1990 without holding a preliminary inquiry with the finding that non scheduled offences could not be tried with scheduled offences without adverting to Section 5(7) of the Criminal Law Amendment Act, 1958. In the cited case allegedly judicial files were sold in the year 1984. Complaint was got lodged on 1.11.90 without any plausible jurisdiction. In para 13 of the judgment following observations were made which show that the cited case is not applicable to the facts of the present case--
"It appears from signature of complainant that all the alleged offences were never committed simultaneously and purpose in between runs into years but no complaint was filed at the particular moment. As to why the complainant awarded for such a long period is a mystery but it cannot be without reason which could only be explained by the appellant alone. IT is apparent from record that prima facie sufficient evidence is lacking to show that Ghulam Yasin (respondent) had delivered two judicial files to Raja Saeed Akhtar in lieu of Rs. 30000/- as the complainant had himself admitted that neither the said transaction was made in his presence nor the amount was paid by the Raja Saeed in his presence. .............
No complaint could have been filed regarding tempering in judicial files as it was the executive prerogative of the Courts below as mentioned hereinabove".
Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal & 5 others (PLD 1992 SC 178 page 197).
"(i) Whether the provisions of Section 195, sub-section (1), Clause (c) of the Cr.P.C. as regards offences described in Section 463 or offences punishable under Section 475 or Section 476 of the PPC apply to a document which is produced or given in evidence in a suit or in any other proceedings in a Court but which had been forged before the institution of the suit or proceeding"? And
(ii) If the facts of a case attract the provisions of Section 195, but no complaint has been made by the Court concerned, is the police competent to register a case and investigate it?"
"Now can it be said that the offence of forgery was against the administration of justice in a case in which the offence was committed, say, ten or twenty years before the suit in which the forged document was produced or given in evidence? The answer must obviously be in the negative. The former must have, before the suit, used the forged document on a number of occasion in deceiving a number of persons. And when his fraud and forgery came to light and the real owner or the persons defrauded were preparing to take criminal proceedings, he hit upon the clever device of instituting a civil suit and producing the forged document in the civil suit. He would, then, on the view contended for by the petitioner, be able to say. `Well, I have produced the document in the Civil Court; you have to wait will that Court has finally decided the genuineness or otherwise of the document, for unless that is done, that Court will not be in a position to say whether an offence of forgery was committed or not and to lodge a complaint under Section 195'. Unfortunately civil suits usually take very long to decide and, in practical terms, it may amount to completely defeating the ends of justice. On this view, therefore, the Civil Courts will become a place for the protection of criminals. This obviously could not have been the intention of the law. The cause of action for proceeding against the forger arose immediately when the offence of forgery as defined in Section 463 of the PPC was committed. The commission of that offence was not only intended deprive the real owner of his property but had also enabled the forger to deceive others and to deprive them of money. No proceedings were pending in any Court at that time. There was, therefore, no question of the offence, at the date of its commission, being against the Court or the administration of justice; nor did it, then, in any way sully the proceedings of the Court, for none were pending".
"As the two interpretations of clause (c) of sub-section (1) of Section 195 of the Cr.P.C. are so evently balanced, the one that does not deprive the ordinary Criminal Courts of their ordinary jurisdiction and persons of the right of redress must be adopted. On that view of the matter also, the view that clause (c) of sub-section (1) of Section 195 of the Cr.P.C. does not apply to cases in which the forgery was committed before the institution of a suit or other proceedings in which the forged document is produced or given in evidence should, in my opinion, be preferred".
"For these reasons, my answer to the first question is in the negative".
"As the second question does not arise out of the fats of the case before us, we did not call upon learned counsel to address argument. We do not, therefore, think it necessary to answer that question".
It is a settled principle of law that it is the discretion of the magistrate concerned to pass order under Section 63 of the Code of Criminal Procedure to discharge the accused persons. However, the discretion must be exercised by the concerned magistrate justly, fairly and in case discharge order was passed by magistrate mechanically without application of his independent mind to the facts of the case, blindfolded acceptance of a recommendation of the police in that regard, perversity of reasoning and adoption of a procedure which offends against the letter and spirit of the law relating to discharge, then High Court has ample jurisdiction to interfere and set aside such an order under Section 561-A of Cr.P.C. See Arif Ali Khan and others v. The State & others (1993 SCMR 187) and Muhammad Sharif & others v. The State and another (1997 SCMR 304).
It is by now settled that order passed by the magistrate is of administrative nature. This Court expressed the view that some of the powers of the magistrate are administrative, executive or ministerial' and he discharges these duties not as a Court but as a persona designata. See Arif Ali Khan v. The State (1993 SCMR 187), Muhammad Sharif v. The State (1997 SCMR 304) and Hussain Ahmed v. Irshad Bibi (1997 SCMR 1503), Bahadur and another v. The State and another (PLD 1985 SC 62). Ratio decidendi of all the cases mentioned above appears to be that since the magistrate, while concurring with a police report submitted under Section 173 Cr.P.C., does not act as Criminal Court subordinate to the Court of Session and the High Court, his order cannot be set aside, revised or modified under the provisions of Sections 435, 439 Cr.P.C, but in that case as stated above it is amenable to the inherent jurisdiction of the High Court under Section 561-A Cr.P.C. provided the order amounts to an abuse of process of the Court. Meaning thereby that a magistrate can, thus, effectively grant release to a person who may have been arrested or detained without sufficient cause. High Court is vested with the authority under Section 561-A Cr.P.C. to exercise the said power to secure the ends of justice, suppress the patent mischief if non interference with the impugned order will perpetuate unjustice, in case the magistrate concerned had passed the order without judicial application of mind as per the law laid down by this Court in Eng. Bashir Ahmad v. Senior Superintendent of Police Islamabad (2002 SCMR 239).
It is a settled law that "every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the impressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found as law laid down by this Court in Trustees of the Port of Karachi vs. Muhammad Saleem (1994 SCMR 2213). As mentioned above, the judgments relied upon by the learned counsel of the petitioners are distinguishable on facts and are not applicable to the controversy in the present case.
In view of what has been discussed above, we do not find any infirmity or illegality in the impugned judgment of the Peshawar High Court. The petitions being devoid of any force are hereby dismissed. Leave declined.
(T.S. Faisal) Petitions dismissed.
PLJ 2006 SC 1443 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi & Saiyed Saeed Ashhad, JJ.
ABDUL GHAFFAR KHAN--Appellant
versus
UMAR KHAN--Respondent
Civil Appeal No. 649 of 2002, decided on 31.1.2006.
(On appeal from Lahore High Court, Lahore dated 4.3.2002 in Civil Revision No. 578 of 2001).
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Punjab Pre-emption Act, (IX of 1991) S. 13--Constitution of Pakistan, 1973, Art. 185(3)--Question of transaction was sale or exchange--Trial Court decided the pivotal issue relating to the nature of transaction--Whether sale or exchange dismissed the suit for pre-emption--Appeal filed by pre-emptor failed--High Court confining the matter to the nature of transaction decreed the suit--Held: Matter on appraisal of evidence would not be a valid reason to disturb the concurrent finding of fact in civil revision--Further held: Without reversing the concurrent finding of Courts below on each issue, the suit could not be decreed by the High Court merely on the basis of observation that transaction was sale and was not an exchange--Case remanded. [P. 1445] A & B
Malik Muhammad Qayyum, ASC and Ch. Akhtar Ali, AOR, for Appellant.
Sh. Zamir Hussain, ASC and Mehr Khan Malik, AOR for Respondent.
Date of hearing : 31.1.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This direct appeal has been preferred against the judgment dated 4.3.2002 passed by a learned single Judge in chamber in the Lahore High Court, Lahore, in a civil revision arising out of a suit for possession through pre-emption.
The relevant facts in small compass are that Faizullah Khan exchanged the land measuring 100 kanals and 12 marlas situated in Chak No. 569-GB, Tehsil Jaranwala District Faisalabad, with the land in Chak No. 587 GB also situated in Tehsil Jaranwala, owned by the appellant vide Mutation No. 1347 dated 27.5.1993. The respondent claiming superior right of pre-emption, filed a suit for pre-emption with the assertion that transaction was given the colour of exchange to defeat his superior right of pre-emption on the basis of ownership of adjacent land and co-sharer in joint khata as well as common right of passage and irrigation. The pre-emptor pleaded in the suit that the value of the land transferred in exchange was almost double to the price of the suit land and the land given to the vendor in exchange was further sold by him to Abdul Waheed Khan, his son in law, for a consideration of Rs. Six lac but in the mutation, the transaction was shown as exchange to defeat his right of pre-emption. The respondent thus claiming the performance of talab-e-muwathabat and talab-e-ishhad in presence of witnesses in accordance with provisions of Section 13 of Punjab Pre-emption Act, 1991, sought a decree for pre-emption. The main contest of appellant (vendee) in the written statement was that the transaction being an exchange and not a sale was not pre-emptible and the suit for pre-emption was not maintainable. The vender also asserted that pre-emptor was estopped by his conduct to bring the suit and having not been able to fulfil requirement of talab-e-muwathabat and talab-e-ishhad in accordance with law, could not succeed in the suit. The learned trial Judge decided the pivotal issue relating to the nature of transaction whether it was sale or exchange in favour of the vendee and dismissed the suit with the finding that transaction was exchange and further performance of talabs was also not proved. The appeal filed by the respondent (pre-emptor) was dismissed by a learned Additional District Judge, Jaranwala vide judgment dated 3.5.2000 but respondent succeeded in civil revision filed by him in the High Court under Section 115 CPC and a learned single Judge, while reversing the concurrent finding of the two Courts on the above issues, decreed the suit vide impugned judgment.
The learned counsel for the appellant in support of this petition, has contended that the nature of transaction whether it was sale or exchange was a pure question of fact and concurrent finding of two Courts on the above question, has been reversed by the High Court, through appraisal of evidence in civil revision without pointing out any defect of misreading or non-reading of evidence, requiring to be cured in revisional jurisdiction. It was argued by the learned counsel that the High Court while confining the matter to the extent of issue relating to the nature of transaction, decreed the suit in civil revision, without touching the concurrent finding on the issues relating to the superior right of pre-emption, performance of talabs for exercise of such right, estopple and waiver. Learned counsel for the respondent, on the other hand, has contended that the main contest between the parties was on the issue whether the transaction was sale or exchange and remaining issues being of less importance, were not agitated on behalf of appellant, therefore, it would be deemed that performance of talabs and exercise of right of pre-emption in accordance with law, was conceded and thus the reversal of finding by the High Court on all the issues, was not objectionable.
The question whether the transaction was sale or exchange, being a question of fact, was to be necessarily decided in the light of evidence of the parties and the finding of the Court of first instance as well as appellate Court on this issue was reversed by the High Court in civil revision with the observation with transaction of sale was taken or treated as exchange to defeat the right of pre-emption. We having perused the record with the assistance of learned counsel for the parties but have not been able to find out any legal or factual infirmity in the concurrent findings of two Courts on the question of fact, calling for interference by the High Court in its revisional jurisdiction and mere fact that another view of the matter was possible on appraisal of evidence, would not be a valid reason to disturb the concurrent findings of fact in civil revision. Be that as it may, we have noticed that the learned Judge in the High Court after reversing the finding on the issue relating to the nature of transaction, without pointing out any misreading or non-reading of evidence on the rest of the issues relating to the performance of talabs to exercise the right of pre-emption, estopple and waiver, set aside the judgment of the appellate Court with the observation in general terms that the conclusion of two Courts regarding non performance of talab-e-muwathabat and talab-e-ishhad was based on misreading of the evidence. We find force in the contention of the learned counsel that without reversing the concurrent finding of the two Courts on each issue, the suit could not be decreed by the High Court merely on the basis of observation that transaction was sale and was not an exchange. The pre-emptor cannot succeed without proving the performance of talabs in accordance with law and right of pre-emption can also be defeated on the ground of estopple and waiver. Learned counsel for the respondent has not been able to satisfy us that in the present case, the finding of the High Court on the pivotal issue was based on sound reasons and without reversing the finding on the issue relating to the estopple and waiver, the suit could be decreed.
In the light of foregoing discussion, this appeal is allowed and case is remanded to the High Court for decision afresh of the civil revision on all issues in accordance with law. There will be no order as to costs.
(Malik Sharif Ahmed) Case remanded.
PLJ 2006 SC 1445 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ; Abdul Hameed Dogar & Saiyed Saeed Ashhad, JJ.
COLLECTOR OF SALES TAX & CENTRAL EXCISE LAHORE--Appellant
versus
MITCHELL'S FRUIT FARM (PVT.) LTD. RENALA KHURD DISTT. OKARA & others--Respondents
Civil Appeals Nos. 1141 and 1142 of 2003, decided on 19.4.2004.
(On appeal from the judgment dated 15.11.2001 of the Lahore High Court, Lahore in W.P. No. 5662 & 5663 of 1990).
Central Excise and Salt Act, 1944 (I of 1944)--
----S. 4(2)--Central Excise Rules, 1944, Rr. 7, 10, 226 & 241--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Preparation of beverages--Provisions--Exemption to--Held: Juices which require water to make them drinkable fall under Item No. 02-01-B which instant drinks are to be treated as "Beverages"--As such products prepared from fruit juices in the manner prescribed would fall within the ambit of exemptor to Item No. 02-1-B (a) and not under 02-01-B(b). [P. 1449] A
Mr. A. Karim Malik, Sr. ASC for Appellant.
Syed Mansoor Ali Shah, ASC for Respondent No. 1.
Date of hearing : 19.4.2004.
Judgment
Abdul Hameed Dogar, J.--These appeals by leave of this Court are directed against the judgment dated 15.11.2001 passed by learned single Judge of Lahore High Court, Lahore whereby Writ Petitions Nos. 5662 and 5663 of 1990 filed by Respondent No. 1 were allowed and it was directed that excess amount recovered by appellant shall be refunded.
"Show Cause Notice dated 22.12.1986
Whereas it has been reported to the undersigned that during the course of audit of the accounts of M/s. Mitchell's Fruit Farms, Ltd., Renala Khurd relating to the years 1984-85 & 1985-86, the staff of the DRRA observed that the juices manufactured by them were charged to central exercise duty @ Rs. 0.40 per container which was less than the duty payable @ 5% of the retail price in terms of Item No. 02-01-B(b) of the First Schedule to the Central Excise & Salt Act, 1944. Thus, they evaded central excise duty amounting to Rs. 1,34,007.52 in contravention of the provisions of Rules 7,10,226, and 241 of the Central Excise Rules, 1944 read with Section 4(2) of the Central Excise & Salt Act, 1944.
"Show Cause Notice dated 11.1.1998
Whereas it has been reported the undersigned by the Deputy Superintendent, Central Excise & Sales Tax I/C M/s. Mitchell's Fruit Farms (Pvt.) Ltd., Renala Khurd that during the audit conducted by the staff of Directorate Revenue Receipt Audit, Lahore, it was observed that M/s. Mitchell's Fruit Farm (Pvt.) Ltd, Renala Khurd, are the manufacturers of syrups, squashes and juices. Quantity of all products were indelibly/legibly and prominently printed on each bottle/container, as such the same are liable to Central Excise duty at the rate of 5% of the retail price in terms of Item No. 02-01-B(b) of the First Schedule to the Central Excise & Salt Act, 1944. It was however observed that syrup and quashes were charged to duty at correct rate while the juices were charged to duty @ Rs. 00.40 per container which is not in accordance with the prescribed rate of duty i.e. 5% of the retail price a mentioned above. Thus the party has contravened Rules 7,10,226 and 241 of the Central Excise Rules, 1944 read with Section 4(2) of the Central Excise & Salt Act, 1944 and evaded Central Excise duty amounting to Rs. 57,514.66.
Respondent No. 1 replied by stating that their tinned fruit juices are made wholly from juices and pulp indigenous vegetables, food grains of fruits and do not contain any other ingredient, indigenous or imported, other than sugar, colouring materials, preservatives or additives in quantities prescribed under the West Pakistan Pure Food Rules, 1965 (hereinafter referred to as `the Rules') and are correctly cleared under exemption to Item No. 02-01-B(a). The Respondent No. 3 feeling not satisfied with the reply conducted proceedings and on conclusion held that the charges leveled in the show cause notices were established and Respondent No. 1 was liable to pay excise duty @ 5% of the retail price as mentioned in Item No. 02-01-B(b). This order was assailed by Respondent No. 1 in appeals before Collector Central Excise and Land Customs (Appeals) Northern Zone, Lahore which were dismissed vide order dated 21.5.1989. Against which revisions were filed before Additional Secretary, Government of Pakistan, Ministry of Finance which also met the same fate. Said orders were assailed in writ petitions before learned High Court which were allowed vide impugned judgment.
Leave to appeal was granted by this Court on 23.5.2003 to determine whether the liquid in question being produced and marketed by respondent-company was "Fruit Juice" or "Beverage".
We have heard Mr. A. Karim Malik, learned Sr. ASC appearing on behalf of appellant and Syed Mansoor Ali Shah, learned ASC appearing on behalf of Respondent No. 1 at length and have gone through the record and proceedings of the case in minute particulars.
Learned counsel for the appellant vehemently contended that learned High Court has erred by holding that the product in dispute are covered under Item No. 02-01-B(a) and not under Item No. 02-01-B(b) according to which rate of duty was 5% of the retail price. According to him Respondent No. 1 contravened the provisions of Rules 7, 10, 226 and 241 of the Central Excise Rules, 1944 read with Section 4(2) of the Central Excise & Sales Tax Act, 1944 and evaded duty amounting to Rs. 134,007.052 for the years 1984-85 and 1985-86 and Rs. 57,511 for the year 1986-87. According to him, appeals and revisions filed by Respondent No. 1 were rightly rejected by holding that the products in question were not meant for instant drinking, and as per criteria laid down in the Rules did not qualify the classification of beverages and were thus not covered by the exemption to it as laid down vide Notification No. SRO 555(1)/79 dated 28th June 1979 as amended by the Federal Government vide Notification No. SRO 572(1)/83 dated 11.6.1983. He attacked the impugned judgment and contended that same is liable to be set aside as it suffers from material illegality.
On the other hand, learned counsel appearing on behalf of Respondent No. 1 controverted the above contentions and supported the impugned judgment. He contended that learned High Court has elaborately discussed each and every aspect of the matter and there is no material apparent on record warranting interference by this Court. He further contended that products in question were instant drink, and as per criteria laid down in the Rules, the products qualify the classification of beverages and were thus covered by the exemption to Item No. 02-01-B(a).
We have considered the arguments of learned counsel for the parties and have gone through the relevant provisions of law relating to the facts and circumstances of the case. The precise question involved in these cases is as to whether the product in question are beverage made from Juice' orJuices'.
The terms have been described in exemption B(a) and B(b) to Item 02-01 in the first schedule to the Central Excise and Salt Act, 1944 which are reproduced as under:--
"B (a) Beverage made wholly from juices or pulp of indigenous vegetables; food grains or fruits and which do not contain any other ingredient indigenous or imported, other than sugar, colouring materials, preservatives or additives in quantities prescribed under the West Pakistan Pure Food Rules, 1965.
(i) if filled in container containing less than 260 milliliters-ten paisa per unit container.
(ii) if filled in container containing 260 milliliters or more-forty paisas per liter or fraction thereof.
(b) Juices. syrup and squashes, if the retail price and quantity of such items are indelibly, legibly and prominently printed on each container or its cork or label-5% of the retail price.
It would also be advantageous to reproduce here Rule 85 of the Rules:--
"85. Fruit Beverage or Fruit Drink or Fruit Crush means by any beverages or drink which is purported to be prepared from fruit juice and water or carbonated water, by whatever, name it is called, and containing sugar, dextrose, invert sugar, or liquid glucose, either singly or in combination and with or without peel oil, fruit essences or flavours, citric acid, ascorbic acid, permitted preservatives and colours. It shall conform to the following standards:--
(a) Total soluble solid - Not less than 10 per cent.
(b) The beverages prepared artificially by mixing the separated components of juices shall be labeled "Artificial".
A combined reading of the above would show that in case of beverages prepared from fruit juices in the manner prescribed in the Rules the product would fall within the ambit of exemption to Item No. 02-01-B(a) and not under 02-01-B(b). The products in dispute were also got analyzed from P.C.S.I.R. Laboratories, Lahore. The bare reading of the said report would show that the products do confirm to the standards prescribed in Rules. The percentage of the said soluble solids in orange juice is 13.78% while in Grape fruit juice is 14.03% . The water contents were 83.55% and 84.9% respectively. In view of above, it is clear that juices which require water to make them drinkable fall under Item No. 02-01-B while instant drinks are to be treated as `Beverages'. As such products prepared from fruit juices in the manner prescribed would fall within the ambit of exemption to Item No. 02-1-B(a) and not under 02-01-B(b). We do not find any illegality, infirmity, misreading or non-reading in the impugned judgment warranting interference by this Court.
(Malik Sharif Ahmed) Appeals dismissed.
PLJ 2006 SC 1450 [Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & M. Javed Buttar, JJ.
ABDUL SATTAR and another--Appellants
versus
DIRECTOR FOOD PUNJAB etc.--Respondents
Civil Appeals Nos. 316 and 317 of 2003, decided on 25.10.2005.
(On appeal from the judgment dated 21.4.2001 passed by Punjab Service Tribunal, Lahore in Appeal No. 3094 of 2000).
Constitution of Pakistan, 1973--
----Art. 212(3)--Service matter--Awarded major penalty of dismissal from service with recovery of loss caused to Government--Charge of misconduct--Both appellants were proceeded under rules on the charge of misconduct having misappropriated the imported wheat--Both found guilty of charge in departmental enquiry and were dismissed from service--Appeal before Punjab Service Tribunal had also failed--Held: Shortage of huge quantity of wheat was the result of short delivery of consignment or wastage due to the wreckage in the transit, a presumption would be raised that shortage was caused at PR center, therefore, could not be treated a case of short delivery and thus no exception could be taken by the tribunal to the finding of the departmental authority qua the responsibility of the appeal--Further held: Appellants having failed to show the shortage of wheat in the record relating to stock or inform the higher authorities about the shortage at the relevant time, were rightly held responsible for loss caused to Government--Compulsory retirement was given instead of dismissal from services to meet the ends of justice. [P. 1454] A, B & C
Shah Abdul Rashid, Sr. ASC with Hafiz Tariq Naseem, ASC and Mr. M.S. Khattak, AOR for Appellants.
Syed Sajjad Hussain Shah, AAG and Mr. Zaman Bhatti, AOR, for Respondents.
Date of hearing : 25.10.2005.
Judgment
Muhammad Nawaz Abbasi, J.--These connected appeals by leave of the Court directed against the judgment dated 21.4.2001 passed by the Punjab Service Tribunal, Lahore, involving common question of law and facts are proposed to be disposed of through this single judgment.
"As common questions of law and facts are involved in these petitions, which are directed against the judgments of the Punjab Service Tribunal, Lahore (hereinafter referred to as the Tribunal) dated 27.4.2001, passed in Appeal No. 3094 of 2001, therefore, we intend to dispose of the same by this consolidated order.
"that while posted at P.R. Centre, Musa Virk during 1985-86 scheme, they declared unjustified enroute shortage of imported wheat weighing 442.132 M. tons in the stock received from Karachi. Their misdeed has caused a heavy loss to the State on account of showing less receipt of imported wheat by them deliberately with malafide wheat by them deliberately with malafide at the destination station than with weight advised in the consignment."
The petitioners replied to the charge-sheets. Authorized officer appointed the Enquiry Officer to conduct the inquiry, who vide his inquiry report dated 2.10.1995 enonerated the petitioners from the charge leveled against them. However, Authorized Officer after adhering to the rules recommended major penalty and forwarded the case to the Authority concerned. The Authority after hearing the petitioners vide order dated 21.6.2000 dismissed the petitioner from service and penalty of Rs. 12,37,969/- was ordered to be recovered from them in equal proportion within one month on the passing of the order in lump-sum through legal or coercive means.
Feeling aggrieved, petitioners filed appeals before the departmental authorities, but the same were not decided within 90 days, therefore, they filed appeals before the Tribunal, which were dismissed vide impugned judgment dated 27.4.2001. Hence, these petitions.
Learned counsel for the petitioner, inter alia, contended:--
(a) that in an identical case on the same charges Qaswar Ali Abbas, Storage and Enforcement Officer, Rana Muhammad Afzal, Assistant Food Controller and Ghulam Farid, Food Grains Inspector, the departmental authorities initiated disciplinary action against them and awarded minor penalty in reduction in the time scales of their pay by three stages dated 28.4.1997 and 16.7.1997:
(b) that thereafter the above-noted No. 2593/97, 2686/97 and 2638 /97 and the Tribunal accepted their appeals and set aside the penalty awarded by the departmental authorities vide judgment dated 19.10.2001, copy of which is available at page 14, Part II of paper book of CMA No. 40/02 in C.P. No. 2002-L/01:
(c) that the Inquiry Officer exonerated the petitioners herein from the charges leveled against them; but after lapse of 10 years the Authorized Officer in his report found them guilty, but it is very strange to note that in this very report he also observed as under:
(d) that on the one hand the departmental authorities had held the petitioners guilty of the charges and on the other hand District Food Controller, Multan, had filed claim regarding shortage of wheat with the Railway authorities through letter No. 8989-91/CC. Dated 11.3.1986, which is available at page 64 of the Paper Book of C.P. 2002-1/01;
(e) that the Tribunal could not dismiss the petitioners" appeals without taking into consideration the point of discrimination as well as the action of the departmental authorities, which was in violation of Article 4 & 25 of the Constitution;
(f) that the Tribunal could not dismiss the appeal without adhering to the point that the dispute related to 1985, whereas the departmental proceedings against the petitioners were initiated in the year 1995 at a very belated stage i.e. after a span of 10 years.
Leave to appeal is granted to consider, inter alia, the above points raised by the learned counsel for the petitioners. Interim relief already granted to the petitioners by this Court vide order dated 27.6.2001 shall continue till the disposal of the appeals, which may be fixed for hearing with six months time.
The parties are permitted to file necessary documents/concise statement, if they so desire."
The appellants were proceeded against under the Punjab Civil Servants (E&D) Rules 1975 for the charge of misconduct on the basis of allegation that they while posted at P.R. Centre, Musa Virk, Khanewal, having misappropriated the imported wheat of 442.132 Matric Tons caused heavy loss to the government. The appellants in consequence to the departmental inquiry, were found guilty of the charges and were dismissed from service.
The learned counsel for the appellants contended that there was no direct evidence in support of the allegation that the imported wheat was misappropriated by the appellants at PR Center Khanewal and factually the shortage of wheat happened due to the wastage in the transit which was evident from the fact that the department much before the initiation of departmental proceedings against the appellants claimed damages from Pakistan Railways for the shortage of the wheat in the carriage from Karachi to Khanewal. He submitted that in these circumstances, it was unfair to proceed against the appellants for the charge of shortage of wheat as the possibility of shortage of wheat in the carriage because of mishandling in the transit or for such other reason could not be ruled out and further in absence of any positive evidence that shortage took place after the delivery of wheat at PR Center, the appellants could not be held responsible.
The learned AAG in reply to the arguments of the learned counsel for the appellants has submitted that there was nothing on record to show that the shortage of the wheat took place in the transit or that Railway has accepted the liability of payment of damages. He argued that as per record, maintained at the PR Center it was not a case of short delivery and the appellants being custodian of the wheat at the center would be directly responsible for the loss caused to the government. The learned AAG, however, has submitted that if ultimately damages claimed by the Government from Pakistan Railways are paid, the appellant may claim refund of the amount required to be deposited by them in terms of the order of departmental authority.
The perusal of record with the assistance of learned counsel for the appellants, revealed that shortage of huge quantity of wheat was not shown by the appellants in the record of PR Center which was subsequently, deducted in the process of physical check up, and consequently the sole question requiring determination would be whether it was a case of enroute shortage of wheat from Karachi to Khanewal or the shortage happened at the centre after delivery of the consignment. In absence of any evidence that the shortage of huge quantity of wheat was the result of short delivery of consignment or wastage due to the wreckage in the transit, a legitimate presumption would be raised that shortage was caused at PR Center, therefore, it would not be treated a case of short delivery and thus no exception could be taken by the Tribunal to the finding of the departmental authority qua the responsibility of the appellant.
Notwithstanding the making of the claim of damages by the department against the Pakistan Railways for the loss caused to the government, the appellants having failed to show the shortage of wheat in the record relating to the stock at PR Center or inform the higher authorities about the shortage at the relevant time, were rightly held responsible for the loss caused to the Government. In view of the above factual position, we have not been able to find out any substance in the contentions raised by the learned counsel in support of these appeals and he also has not been able to point out any legal defeat or factual lacuna either in the departmental proceedings or in the judgment or Tribunal calling for our interference. Learned counsel for the appellants, has submitted that in the similar circumstances, in an identical case pertaining to Multan Center, the concerned officials have been awarded the punishment of reduction in rank whereas the appellants, who have legitimate expectation of normal retirement, with clear service record of more than 30 years of service, have been awarded the major penalty of dismissal from service, on the basis of presumptive liability and requested for conversion of their penalty of dismissal from service into compulsory retirement.
Having considered the question relating to the quantum of punishment, we have found that in the circumstances of the case, the penalty of dismissal from service awarded to the appellants was harsh and instead the penalty of compulsory retirement would be sufficient to meet the ends of justice. Consequently, we convert the penalty of dismissal from service awarded to the appellants into compulsory retirement with direction that the amount recoverable form them a loss of Government in terms of order of departmental authority shall be deposited by them within three months and if the damages claimed by the department from Pakistan Railways are ultimately paid to the Government, the amount deposited by the appellants will be refunded to them. These appeals, with the above modification in the quantum of punishment, are partly allowed with no order as to costs.
(Malik Sharif Ahmed) Order accordingly.
PLJ 2006 SC 1455 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J.; Saiyed Saeed Ashhad & Hamid Ali Mirza, JJ.
FAQIR ABDUL MAJEED KHAN--Petitioner
versus
DISTRICT RETURNING OFFICER etc.--Respondents
Civil Petition No. 2645 of 2005, decided on 5.5.2006.
(On appeal from the judgment dated 2.11.2005 passed by Lahore High Court, Lahore in W.P. No. 17196/2005).
Punjab Local Government Election Rules, 2005--
----R. 36(6)(i) & (ii)--Constitution of Pakistan, Art. 185(3)--Jurisdiction--Recounting can be ordered by the District Returning officer to Returning Officer who subject to availability of the conditions under Rules 36(6) (i) and (ii) of the Rules 2005 can undertake the process of recounting--Returning Officer can only take into consideration and recount valid ballot papers in respect of any polling station if any of two conditions enumerated in clauses (i) and (ii) were fulfilled--Held: Jurisdiction of Returning Officer was only to examine excluded ballot papers under Rule 30(3) in accordance with provision to Rule 30(6)(ii) of the Rules 2005 for the purpose of determining whether a ballot paper was valid or not--Order was passed without jurisdiction when such ballot papers declared valid for the purpose of recounting in favour of particular candidate--Order suffering from patent illegality or without jurisdiction, deserves to be knocked down. [Pp. 1460 & 1464] A & B
PLD 1958 SC 104; PLD 1973 SC 326; PLD 2002 SC 630; 2003 SCMR 59; 2004 SCMR 28 and 2004 SCMR 1798, referred.
Ch. Mushtaq Ahmad Khan, Sr. ASC and Mr. M.S. Khattak, AOR for the Petitioner.
Syed Iftikhar Hussain Gillani, ASC with Mr. Mehr Khan Malik, AOR and Ms. Afshan Ghazanfar, AAG (Pb.) for the Respondents.
Date of hearing : 5.5.2006.
Order
Iftikhar Muhammad Chaudhry, CJ.--This petition has been filed under Article 185(3) of the Constitution of Islamic Republic of Pakistan against the judgment of Lahore High Court whereby Writ Petition No. 17196/2005 instituted by the petitioner has been dismissed.
The District Returning Officer disposed of above application on 7th October 2005 without providing opportunity of hearing to petitioner. Relevant para therefrom reads thus:
"The Returning Officer is directed to look into the rejected votes of the contesting candidates and to decide their fate in accordance with law before consolidating the final result."
(a) The Presiding Officer excluded 26 ballot papers from the count on the ground that those were not properly stamp marked by the voters.
(b) The Form ECP-II has been de-sealed, out of which 26 ballot papers have been taken which were excluded from the count.
(c) 13 ballot papers so taken out of the sealed envelop, show a circle impression on election symbol (Umbrella) allotted to the applicant (respondent Muhammad Feroz).
(d) One out of it also bears the official mark stamp. Likewise 5 ballot papers also find same marks on the symbol of Faqir Abdul Majeed Khan (petitioner) and 6 against symbole of another candidate namely Ghayas Khan. Two ballot papers contained double impression on Umbrella, Boat and Eagle.
On having noted above facts and relying upon the judgment in the case of Dr. Sher Afghan vs. Aamar Hayat Khan & two others (1987 SCMR 1987), the Returning Officer held that ballot papers excluded from the count had mostly marks on the wrong side of the official marking aid stamp and therefore, keeping in view the dictum laid down by the Apex Court, it was concluded that the Presiding Officer wrongly excluded 13 votes which should have been counted in favour of applicant (Respondent No. 5), raising his total valid votes to 74. Consequently his count was changed from 61 to 74. Similarly the count of the petitioner was raised from 67 to 71 and respondent was declared returned un-officially.
"As the petition has already been admitted to regular hearing and it is prima facie borne out that the learned Returning Officer acted on the directions of District Returning Officer Mianwali in a petition for recounting of the votes the said recounting could apparently be only made in respect of valid votes and invalid votes could not be included in the count. Therefore, the petitioner has a prima facie case and Respondent No. 5 will not be administered on oath till 2.11.2005."
Subsequently thereto when the petition came up for hearing it was dismissed for reasons to be recorded later, being not maintainable on 2nd November 2005. Reasons thereof were, however, delivered on 16th November 2005. Petitioner, in the meantime, instituted instant petition which came up for hearing on 14th November 2005, which was postponed for 16th November, 2005. However, operation of the order of Returning Officer dated 8th October 2005 was suspended. Subsequent thereto the reasons of the High Court's judgment were also filed. Relevant para on merits is reproduced herein below:
"The contention that the District Returning Officer had directed the Returning Officer to recount the invalid votes appears to be misconceived. Under Rule 36 sub-rule 3 supra the Returning Officer while consolidating the results is obliged to examine and decide the fate of invalid ballot papers and he appears to have carried out his legal duty in this case. The Returning Officer in this case had not held the recount of the valid ballot papers in respect of any polling station on the direction of the District Returning Officer. Under Rule 36 sub-rule (6) a Returning Officer has been bound not to recount the valid ballot papers in respect of any polling station unless he is so directed by the Chief Election Commissioner or the District Returning Officer. Thus a Returning Officer while consolidating the result is bound to examine and decide the fate of invalid votes but he has been debarred from recounting the valid ballot papers unless so directed by the District Returning Officer. In the present case the recount of valid ballot papers cast in favour of each candidate was not made by the Returning Officer, therefore, all the proceedings in this case had been carried out under sub-rule (3) of Rule 36 and not under sub-rule (6) of the said Rule."
The above conclusion, however, led to the dismissal of the petition being not maintainable in view of the judgment of this Court in the case of Ch. Nazir Ahmed and others vs. Chief Election Commissioner and 4 others (PLD 2002 SC 184). Hence this petition for leave to appeal.
(i) As to whether Constitution petition, instituted by the petitioner was maintainable, in view of the facts and circumstances of the case.
(ii) What is the extent of the jurisdiction of the District Returning Officer in terms of Rule 36 of the Punjab Local Government Elections Rules, 2005.
(iii) As to whether the Returning Officer, while consolidating the results can express opinion of excluded votes, contrary to allied provision of the Rules, if not then what would be its effect.
Learned counsel for the respondent emphatically stressed that the High Court had no jurisdiction to entertain a Constitution petition under Article 199 of the Constitution of the Islamic Republic of Pakistan in election matters, particularly when before institution of petition, Election Tribunal has been constituted, providing adequate remedy to the aggrieved candidates to seek relief, therefore, the High Court had rightly dismissed the petition.
On the other hand learned counsel for the petitioner strenuously stressed that nothing is left for the Tribunal to decide in view of the finding of the Returning Officer vide order dated 8th October, 2005 coupled with the judgment of the High Court who had not only dismissed the petition on the question of maintainability but on merits as well, as it is indicated from its reading. In this behalf it may be noted that this Court time and again had observed that with reference to the elections held under Article 225 of the Constitution of the Islamic Republic of Pakistan that any matter can only be called in question through an election petition. Readily reference may be made to the case of Election Commission of Pakistan vs. Javed Hashmi and others (PLD 1989 SC 396). Subsequent thereto the judgment in the case of Javed Hashmi (ibid) was affirmed in the case of Ghulam Mustafa Jatoi vs. Additional District & Sessions Judge/Returning Officer and others (1994 SCMR 1299). But, with an exception namely where no legal remedy is available to an aggrieved party during the process of election or after its completion against an order of Election Functionary, which is patently illegal/without jurisdiction and the affect of which is to defranchise a candidate, he can press into service Constitutional jurisdiction of the High Court. For convenience, relevant observations therefrom read as follows:
"The upshot of the above discussion is that generally in an election process the High Court cannot interfere with by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can press into service Constitutional jurisdiction of the High Court. The majority view in the case of Election Commission of Pakistan v. Javaid Hashmi (supra) is not applicable. We may clarify that we do not intend to overrule the above majority view in the above case. The above case in fact is distinguishable from the instant case for the reasons already discussed hereinabove.
The above judgment was followed in the case of Aftab Shahban Mirani vs. President of Pakistan & others (1998 SCMR 1863).
It may be noted that in the case of Nazir Ahmad (ibid) this Court has held that the principle announced in the judgment pertaining to election held under the Constitutional provision shall also be applicable on the election under Local Government provision shall also be applicable on the election disputes shall have the binding effect under Article 189 of the Constitution. There is no cavil with the proposition but following the observation made in the cases of Ghulam Mustafa Jatoi and Aftab Shahban Merani, the election under the Local Government Ordinance, can be called in question as well if an order of an election functionary is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate. In presence of such observations made by this Court, now it would be proper to examine that under the circumstances of the case what is the status of the order, passed by the District Returning Officer dated 8th October, 2005. The relevant para therefrom has been reproduced herein above.
It is an undisputed fact that Respondent No. 5 submitted an application praying therein for recounting of votes as it is evident from the prayer clause of the application reproduced herein above. The District Returning Officer under the scheme of Punjab Election Rules 2005 only figures under sub-rule (6) of Rule 36 which is reproduced herein below for convenience:
"The Returning Officer shall not recount the valid ballot papers in respect of any polling station unless:--
(i) the count by the Presiding Officer is challenged in writing by a contesting candidate or his election agent and the Returning Officer is satisfied about the reasonableness of the challenge; or
(ii) he is directed to do so by the Chief Election Commissioner or the District Returning Officer."
The above provision has defined the jurisdiction of the District Returning Officer as well as the Returning Officer. Essentially in exercise of such powers recounting can be ordered by the DRO to Returning Officer who subject to availability of the conditions under Rule 36(6)(i) & (ii) of the Rules 2005 can undertake the process of recounting. In exercise of these powers, Returning Officer can only take into consideration and recount valid ballot papers in respect of any polling station if any of the two conditions enumerated in clauses (i) and (ii) above is fulfilled.
It is to be noted that in the instant case polling took place on 6th October 2005. As per the schedule Returning Officer had fixed the date for the consolidation of the results. The contents of the application submitted by Respondent 5 indicates that respondent was not interested in the consolidation of the election results but wanted recounting because of little scope of getting a favourable result during consolidation hence in the process of consolidation the Returning Officer had to adhere to the provision of Rule 36(3) strictly whereas in the process of re-counting in terms of Rule 36(6) the scope is comparatively larger and it provides more chance of success. However, District Returning Officer had no authority to direct to Returning Officer vide order dated 8th October 2005 for recounting the rejected votes of the contesting candidates because Returning Officer was bond to examine ballot papers under Rule 36(3) of the Rules 2005 to consider only excluded votes. Similarly District Returning Officer could have not disposed of application without providing opportunity of hearing to the petitioner as well but this discrepancy would not be of much importance in view of the fact that Returning Officer examined rejected votes in presence of parties. A perusal of order of Returning Officer, synopsis of which have been reproduced herein above indicates that he had disposed of the whole controversy between the parties without making reference to the Rules meant for declaring valid or invalid votes.
At this juncture it is to be noted that Rule 30(2) provides voting procedure. Rule 30(6)(ii) provides that "the voter, on receiving ballot paper or ballot papers shall put the marking aid rubber stamp on the ballot paper at place within the space containing the symbol of contesting candidate of his choice." This procedure has been provided in order to ensure the sanctity of secret ballot, otherwise if a voter is allowed to put in front of the candidate's choice any other visible mark (by the candidate in whose favour the votes have been cast) than it would lose its sanctity as it would be against the concept of electing a representative by means of secret ballot and if such procedure is allowed to prevail, there would be no purpose of holding the election as then it would become a selection by means of open balloting, which is not the object of the Constitution of the law relating to the Election. Reference in this behalf may be made to Mukhtar Hussain Shah vs. Waseem Sajjad (PLD 1986 SC 178). In this case appellant contested election of Senate against reserved seats of Aalam, technocrats and other professionals under the Houses of Parliament and Provincial Assemblies (Election) Order, 1977 and in this behalf the validity of ballot papers, if any mark or line, additional mark like underlining etc. was considered and following observations were made:
"In examining the ballot-papers if it appears that the voter has done the unwanted marking purposely then it should be taken to have been done perversely and done in such a way as to legitimately forfeit his vote. A very illuminative discussion as regards such a provision of law is to be found in the case of Mian Jamal Shah vs. The Member, Election Commission, Government of Pakistan, Lahore (1). In the opinion recorded by Kaikaus, J. his Lordship first noticed the following two alternative possible interpretations:--
"These words are capable of two meanings:--
(1) that a candidate or some other person concerned with the election is in fact able to identify the elector on account of this mark;
(2) that (although the elector may not be in fact identified) the mark is of a kind which if permitted can be used as an identifying device."
And after examining them at great length concluded as follows:--
"I could point out further difficulties, but I do not think it is necessary. The upshot of the above discussion is that if we adopt the first of the two interpretations stated above neither the Returning Officer not the Member, election Commission, will be able to reject any ballot-paper on the ground that it bears a mark by which the elector can be identified. The result will be that there will be a licence to all concerned to freely use marks for the purpose of identification of voters. Secrecy of the ballot will come to an end and bargaining about votes will be easy. He who is able to exert undue influence on a voter will have ample means to ensure that the vote is cast in accordance with his directions. This is a matter of vital importance for the country and if the second of the two interpretations stated above is not accepted the only proper course for the Government will be to secure an amendment of the law.
If the first interpretation be wholly unacceptable then the second should be adopted as long as its is a possible interpretation, but it is not only a possible interpretation, it is a reasonable one. It invalidates all ballot-papers which bear such marks as can be used for identification. It provides a simple rule and creates no difficulty in the way of the Presiding Officers and Returning Officers. An elector is to make only one mark on the ballot-paper that is the mark for indicating the candidate for whom he is voting and if any other mark which he makes in spite of the knowledge that he is to make only one mark invalidates the ballot-paper he has not cause for grievance. The only objection taken to the second interpretation is that if this was the intention of the Legislature Section 38 should have said that every mark will invalidate a ballot-paper instead of saying a mark by which the voter can be identified'. The answer is that it is possible to conceive of a mark which not be used as an identifying device. It may be too insignificant. It may be accidental. Or, the Legislature may have employed these words without coming to a conclusion whether there could or could not be marks which were incapable of use as identifying devices. The qualification of mark as a mark by which the elector could be identified' is a proper one and what is being urged is that as all marks can be used for identification the qualification was unnecessary. This is not a serious objection particularly when the only other interpretation is an impossible one."
We wholly adopt that view and this brings us in the case of Senate Elections to the position as was taken in Wigtown case (1) that any additional mark like circle underlining, etc. invalidates the ballot paper unless it is attributable to carelessness or want of skill."
It may be noted that in the ballot-papers which have been included in favour of Respondent No. 5, official mark of rubber stamp was not used and the Returning Officer as well as learned High Court accepted the same in view of the arguments that the intention of the voter is to be seen by putting a circle instead of election symbol does indicate that a valid vote was not cast in favour of Respondent No. 5. It is nobody's case that voters had deviated from the said procedure laid down under Rule 30(6)(ii) for a strong reason and exploring of intention of the voters was necessary as it has been highlighted in the case of Nazir Ahmad (ibid). It is to be borne in mind that Returning Officer first of all has to see whether the votes have been cast in the prescribed manner by putting, marking aid rubber stamp and if there is no such mark of rubber stamp, before considering the intention it should be decided whether a vote has been duly cast or not and if answer is in negative then there is no necessity of proceeding ahead. With regard to measuring intention of votes, an elaborate discussion has already been made in the case of Dr. Sher Afghan vs. Aamar Hayat Khan (1987 SCMR 1987).
Thus in view of these observations in both the judgments we are of the opinion that in the instant case admittedly the mark of circle placed on the symbol of Respondent No. 5 would indicate that the right of vote has not been exercised by a voter because such identification on the paper is against the concept of election of secret ballot. It is to be noted that in such like situation where a voter due to inadvertence had not used the marking aid rubber stamp, he can request for another ballot paper in terms of Rule 33 of the Rules 2005 and if such request has not been made then such vote would be excluded being a spoiled ballot paper and would not be counted in favour of any of the candidates. However, if marking aid rubber stamp has been used and there is some defect in its affixation then Returning Officer, on examining the same in his judicial discretion, can direct to count the same in favour of any of the candidates. As Returning Officer had counted invalid votes, instead of excluding them, therefore, such conclusion would be deemed contrary to the provisions of Rule 30(6)(ii) of the Rules 2005 and were not liable to be counted in favour of Respondent No. 5.
The language used in Rule 36(3) would clearly indicate that the Presiding Officer if he finds that such ballot paper should not have been so excluded then he should have counted it as a valid ballot paper in favour of contesting candidate. Essentially when there is no marking aid rubber stamp, no conclusion can be drawn that it has been validly used. Therefore, Returning Officer who, in fact was influenced by the direction of the District Returning Officer, had looked these ballot papers over-consciously and wrongly included these votes in favour of Respondent No. 5. As has been pointed out herein above that whenever there is such an illegality or an order has been passed without jurisdiction and its effect is to defranchise the candidate, then petition under Article 199 can be maintained.
The foregoing discussion clearly demonstrates the patent illegality which has resulted on account of exercise of jurisdiction not vested in Returning Officer. Thus the High Court relying on the judgment in the case of Ghulam Mustafa Jatoi and Aftab Shahban Merani (ibid) should have exercised jurisdiction under Article 199 of the Constitution instead of non-suiting. We may note here that the judgment in the case of Ghulam Mustafa Jatoi (ibid) was composed by a larger Bench comprising of five Judges of this Court, whereby on having taken into consideration the effect of the case of Javed Hashmi had made such observation. It may also be noted that jurisdiction of Returning Officer was only to examine excluded ballot papers under Rule 30(3) strictly in accordance with the provision of Rule 30(6)(ii) of the Rule 2005 for the purpose of determining whether a ballot paper containing a small circle is valid or not and order was passed without jurisdiction declaring such ballot papers valid for the purpose of recounting in favour of Respondent No. 5. By now it is well settled that any order which suffers from patent illegality or is without jurisdiction, deserves to be knocked down. Reference in this behalf may be made to the following judgments:--
(i) Yousaf Ali vs. Muhammad Aslam Zia & two others (PLD 1958 SC 104);
(ii) Nawab Syed Raunaq Ali etc. vs. Chief Settlement Commissioner and others (PLD 1973 SC 326);
(iii) Col. (Retd. Ayub Ali Rana vs. Dr. Carlite S. Pune & another (PLD 2002 SC 630), (iv) Zahoor and another vs. Said-ul Ibrar and another (2003 SCMR 59), (v) Malik Nazar Hussain vs. National Bank of Pakistan & another (2004 SCMR 28), (vi) Qazi Shamsher Rehman & another vs. Mst. Chaman Dasta & others (2004 SCMR 1798).
These are the reasons of our short order of even date.
"For the reasons to be recorded separately, this petition is converted into appeal and allowed. The impugned judgment of the Lahore High Court is set aside. As a consequence whereof petition is declared returned as Tehsil Nazim of Tehsil Piplan, District Mianwali. No order as to costs."
(Malik Sharif Ahmed) Appeal allowed.
PLJ 2006 SC 1465 [Appellate Jurisdiction]
Present: Javed Iqbal & Nasir-ul-Mulk, JJ.
MUHAMMAD FAROOQ SHAH--Appellant
versus
SHAKIRULLAH--Respondent
Civil Appeal No. 1275 of 2003, decided on 25.5.2006.
(On appeal against the judgment dated 16.6.2003 passed by Peshawar High Court, Peshawar, FAO No. 200 of 2002).
Administration of Justice--
----There must be purity in the administration of justice as well as in the administration of quasi-justice which are involved in the adjudicatory process before the Arbitrators. [P. 1467] C
Arbitrator--
----Once the arbitrator enters in an arbitration, the Arbitrator must not be guilty of any act which can possibly be construed as indicative of partiality or unfairness--Umpire had failed to determine the controversy diligently and there was no application of mind but the award was given without examining the view point of second Arbitrator appointed by the respondent--Appeal dismissed. [Pp. 1467 & 1468 ] D & E
Arbitration Act, 1940 (X of 1940)--
----S. 26-A--Applicable--Question of--Section 26-A of Arbitration Act has not been made applicable to PATA--Insertion of S. 26-A in Arbitration Act was made on 11.5.1981 which provides that reasons for award should be stated in sufficient detail in award to enable the Court to consider any question of law arising out of award--Prior to insertion of S. 26-A in Arbitration Act--The Arbitrator was not supposed to give reasoning for award but it must not be lost sight of that award was not to be made in vacuum but entire evidence was to be considered. [Pp. 1466 & 1467] A & B
Mr. Abdul Samad Khan, ASC for Appellant.
Qazi Muhammad Jamil, Sr. ASC and Raja Abdul Ghafoor, AOR for Respondent.
Date of hearing : 28.2.2006.
Judgment
Javed Iqbal, J.--This appeal is directed against the judgment dated 16.6.2003 whereby the FAO preferred on behalf of respondent has been accepted and the judgment/decree of the learned trial Court was set aside and the case was remanded to the learned trial Court for appointment of new Umpire after having consent of the parties, hence this appeal.
Mr. Abdul Samad Khan, learned ASC entered appearance on behalf of appellant and urged with vehemence that no appeal was competent against the judgment and decree of the learned trial Court as such resumption of jurisdiction by the learned High Court was ab initio void and on this score alone the judgment impugned is liable to be set aside. It is next contended that Section 26-A of the Arbitration Act, 1940 (herein after referred to as the `Arbitration Act') was not made applicable to PATA which aspect of the matter has been ignored by the learned High Court without any rhyme and reason resulting in serious miscarriage of justice. It is also pointed out that the matter has been decided by the learned High Court without perusing the relevant record which in fact was never summoned which caused grave prejudice against the appellant.
Qazi Muhammad Jamil, learned Sr. ASC entered appearance for respondent and controverted the view point as canvassed at bar by the learned ASC on behalf of appellant and supported the judgment impugned for the reasons enumerated therein with the further submission that no award could have been made without having gone through the entire record and without affording proper opportunity of hearing to all concerned which could not be done but on the contrary the award given by Sajjad Ahmad Jan, Advocate (Arbitrator) has been adopted in toto without an independent application of mind therefore, the award given by the Umpire cannot be termed as an award stricto senso because award must be based on evidence and reasoning.
We have carefully examined the respective contentions as agitated on behalf of the appellant in the light of relevant provisions of law and record of the case. We have also scanned the entire evidence and perused the judgment of the learned trial Court as well as the judgment impugned. It is an admitted feature of the case that Section 26-A of the Arbitration Act has not been made applicable to PATA. The insertion of Section 26-A in the Arbitration Act was made on 11.5.1981, which "provides that the reasons for the award should be stated in sufficient detail in the award to enable the Court to consider any question of law arising out of the award. This provision is mandatory and in case of non-compliance the Court shall remit the award. However, on this ground the award cannot be straightaway set aside. The arbitrators or umpire are now under a legal obligation to give reasons for the award in sufficient detail. Merely giving reasons in sketchy or summary manner will not amount to compliance with this provision of law. The arbitrators or umpire are bound to give reasons in sufficient detail and such reasons should be made in the award itself. There had been practice that the award were made in non-speaking terms and sometimes the reasons were stated separately which did not form part of the award itself. Now it is compulsory that the reasons should be contained in the award itself. The manner in which the reason has to be given is also specified. It should be in "sufficient detail" so that the Court may be in a position to consider any question of law arising out of the award. The law now contemplates a speaking award." (Ghandhara Indus Ltd. v. Govt. of Pakistan (PLJ 1982 Karachi 105). There is no doubt that "with the insertion of Section 26-A in the Act a radical change has been brought about in the law of arbitration inasmuch as the old concept that the arbitrators or the umpire were not bound to follow technical rules of procedure in proceedings before them because they were not expected under the law to record reason in support of the conclusion arrived at by them while adjudicating the dispute between the parties has been done away with. For reasons, which it is not necessary to state here, it has been considered expedient that the arbitrators or the umpire should state in the award the reasons for the award in sufficient detail to enable the Court to consider any question of law arising out of the award. Section 26-A has accordingly been inserted in the Act." (Province of Punjab v. Industrial Machine Pools (PLJ 1986 Lahore 232).
There is no cavil to the proposition that prior to insertion of Section 26-A in the Arbitration Act the Arbitrator/Umpire was not supposed to give reasoning for the award but it must not be lost sight of that award is not to be made in vacuum but the entire evidence is required to be considered. It would be a misconceived motion that prior to insertion of Section 26-A in the Arbitration Act the award could have been made by the Arbitrator in accordance with his own whims and wishes which could never be an object of Arbitration Act and it would not be in consonance with the provisions as enumerated in Sections 13, 16 and Schedule-I (Para 6) of the Arbitration Act. It is well settled that there must be purity in the administration of justice as well as in the administration of quasi-justice which are involved in the adjudicatory process before the Arbitrators. It is also well settled that once the Arbitrator enters in an arbitration, the Arbitrator must not be guilty of any act which can possibly be construed as indicative of partiality or unfairness. A bare perusal of the added Section 26-A would reveal that after insertion it is obligatory upon the Arbitrator or Umpire to give reasons in sufficient detail and such reasons should be made in the award itself. A line of distinction is to be drawn in between "sufficient detail/reasons" and that of `application of mind' to determine the controversy as both are not synonymous and interchangeable. By no stretch of imagination it can be imagined that prior to Section 26-A in the Arbitration Act, the Arbitrator or Umpire were not bound to examine the entire controversy with diligent application of mind to make an in depth scrutiny of the evidence and thereafter draw conclusion irrespective of the fact whether it was to be mentioned in the award itself or otherwise, would hardly makes any different as an Arbitrator or Umpire cannot be relieved of his duties i.e. to set the controversy at naught by imparting speedy justice after having taken into consideration all the relevant factors. The Arbitrator and Umpire are supposed to act diligently and with vigilance even prior to the insertion of Section 26-A. It may not be out of place to mention here that "the ordinary meaning of the word "umpire" is a person who is to decide upon disagreement. There is a technical meaning attached to the expression which denotes a person who is to settle any difference that may arise between the Arbitrators. It is in this sense that the expression is used in the Act," (2000 Arbitration Manual by M.A. Zafar, page 760), which means that Umpire is required to settle any difference that may arise between the Arbitrators which cannot be settled without having gone through the entire record with independent and diligently application of mind which could not be done in this case. There is no cavil to the proposition that prima facie the duties of an Umpire are the same as those of Arbitrator. We are conscious of the fact that duty of the Court is to give every reasonable intendment in favour of award and lean towards upholding rather than vitiating the same but after having gone through the verdict of Umpire we have no doubt that the Umpire has done nothing but toed the line of action as determined by Sajjad Ahmad Jan, Advocate (Arbitrator) and endorsed his views without any addition, deletion or insertion which depicts that the entire evidence was neither examined nor the factual aspects of the controversy were appreciated in its true perspective. Where an Umpire has applied his mind honestly and arrived at a decision to the best of his ability, the fact that a Judge might take different view was not a ground for holding the award as illegal but the award given in this case by the Umpire is indicative of the fact that there was no application of mind at all. As mentioned herein above the Umpire has failed to determine the controversy diligently and it appears that there was no application of mind but the award given by Sajjad Ahmad Jan, Advocate (Arbitrator) was followed without examining the view point of second Arbitrator appointed by the respondent.
It is to be noted that the appeal has been converted into revision and the objection of learned ASC on behalf of appellant has been taken care of by the learned High Court that no appeal would be competent. We have also observed that no prejudice whatsoever has been caused to the appellant by the judgment impugned as the learned trial Court has been directed to appoint another Umpire after obtaining the consent of the parties to set the controversy at naught for ever. The appellant would have an ample opportunity to canvass his point of view before the Umpire.
In sequel to above mentioned discussion we are of the view that the judgment impugned being well reasoned does not call for any interference. The appeal being merit less is dismissed and leave refused.
(Fouzia Fazal) Appeal dismissed.
PLJ 2006 SC 1469 [Appellate Jurisdiction]
Present: Falak Sher & Karamat Nazir Bhandari, JJ.
Sheikh ABDUL HAKLIM and others--Petitioners
versus
GHULAM NABI (deceased) through L.Rs & others--Respondents
Civil Petitions Nos. 1461 to 1466 of 2004, decided on 19.5.2006.
(On appeal from the Judgement dated 8.3.2004 passed by the Lahore High Court, Rawalpindi Bench in C.R. 22-D to 26-D & 57-D/2002).
Constitution of Pakistan, 1973--
----Arts. 185(3) & 187--Determination of price--Inordinate delay in the disposal of cases, law declared by Supreme Court--The other Courts in the country, can refix the value at which the successful pre-emptor should be allowed to take the property--Cases had already been taken 25 years for disposal--Held: Appeals arising out of petitions would be heard within 6 months on the present record with permission to the parties to add to the documents--Petition accepted. [P. 1470] A & B
Mr. Muhammad Munir Peracha, ASC for Petitioners (in all cases).
Sh. Zamir Hussain, ASC for Respondent.
Date of hearing : 19.5.2006.
Order
Karamat Nazir Bhandari, J.--These six petitions are filed by the vendees-defendants questioning the judgments by which the suits of the respondents-plaintiff for possession through preemption have been decreed.
The sales in these cases had taken place in February, 1979. The suit land ranged from 2 kanals 11 marlas to 5 kanals 3 marlas and the price roughly worked out to be between Rs. 4000/- to 5000/- per marla. The plaintiff deposited the 1/5 price in October, 1979, the remaining price on 10.9.1984. However the total amount was withdrawn on 6.7.1986 and deposited on 10.11.2001.
The suits were mainly defended on the ground that the land had ceased to be agricultural and therefore not pre-emptable. After review of evidence the first appellate Court as well as the High Court have held the same to be pre-emptable. After hearing the learned counsel for the parties we are inclined to uphold the above findings of the High Court.
Mr. Muhammad Munir Peracha, learned ASC for the petitioner has however strenuously urged that because of the defect/weakness in the working of the system of administration of justice, it has taken about quarter of the century for the litigation to conclude. He has urged that during this period of 25 years while money value has depreciated considerably the prices of real estate have gone up progressively. He has submitted that it would be highly unjust if the suit land whose market value has gone up is allowed to be taken away by the pre-emptor at the rate prevailing in the year 1979. Mr. Zamir Hussain, learned ASC on the other hand has with equal vehemence urged that preemption is a right of substitution and this Court cannot enhance the consideration agreed to by the parties or fixed by the trial Court; that plaintiff pre-emptor is not to be blamed for the delay of twenty five years or for the depreciation in the value of money and that in any case the plaintiff-pre-emptor parted with the money and deposited it in Court as required and it was for the Court to have utilized the deposited amount in some profitable scheme so as to compensate one or the other party for the loss in its value and further that the Court should keep in mind that through-out this period the vendees-petitioners have been in possession of the land and enjoying its usufruct.
The above are relevant consideration for determining the question as to at what price, after lapse of 25 years the successful pre-emptor be allowed to enjoy the property. In particular deeper examination of the Article 187 of the Constitution alongwith relevant statutory provisions is required to authoritatively determine as to whether in cases of inordinate delay in the disposal of cases, this Court and following the law declared by this Court the other Courts in the country, can refix the value at which the successful preemptor should be allowed to take the property. Similar questions may arise in cases of specific performance, maintenance of minors under Family Courts Act, 1964/Guardians and Wards Act, 1890 and so. Accordingly we grant leave in all these petitions to consider the above questions and questions which may be subsidiary or incidental to this question.
Since these cases have already taken more than 25 years for disposal we direct that appeals arising out of these petitions will be heard within 6 months on the present record with permission to the parties to add to the documents.
Since the questions are of general public importance, the Presidents of the Supreme Court Bar Association and all the High Court Bar Associations of the country will be requested to render assistance.
(Fouzia Fazal) Petition accepted.
PLJ 2006 SC 1471 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J.; Faqir Muhammad Khokhar & M. Javed Buttar, JJ.
M. ASHRAF BHATTI and others--Petitioners
versus
M. AASAM BUTT and others--Respondents
Crl. P. 435-L/02 and Crl. M. A. 187/04 in Crl. P. 445-1/02, decided on 19.12.2005.
(On appeal from the judgment dated 9.4.2002 of the Lahore High Court, Lahore, passed in Cr. Appeal No. 98/99 of 2001 and M.R. No. 8/T-2001).
(i) Criminal Procedure Code, 1898 (V of 1898)--
----S. 345(2)--Pakistan Penal Code, (XLV of 1860), Ss. 302--Double murder--Compounding offences--Held: Parties, had compromised the matter and compensation had already been received by the complainants therefore, permission was accorded to compound the offence u/S. 345(2) Cr.P.C. [P. 1473] A
(ii) Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 & 311--Tazir after waiver of Qisas--Validity--Held: Murder of two young boys had been committed when they were confined in the lock-up, in a shocking manner which had outraged the public conscience--Convicts were liable to punishment on the principle of Fasd-fil-arz--They took the law in their hands, without caring that police station or Court premises were considered such places where law protects the life of the citizens--The death sentence of the two convicts was reduced from death to life imprisonment--Order accordingly. [Pp. 1473 & 1474] B
Petitioners in person.
Mr. Dil Muhammad Tarar, ASC (in Cr. P. 435-L/02) a/w Mrs. Yasmeen, for Respondents.
Mr. Maqbool Elahi Malik, Sr. ASC on Court notice.
Date of hearing : 19.12.2005.
Order
Iftikhar Muhammad Chaudhry, C.J.--These petitions have been filed against the judgment dated 9.4.2002 passed by Lahore High Court, Lahore.
(i) Muhammad Aasam Butt son of Noor Ahmad
(ii) Moazam Butt son of ....
(iii) Naheeb @ Bhutto son of .....
(iv) Abdul Hameed son of Muhammad Ibrahim
(v) Rana Adnan s/o Ghulam Hussain
(vi) Hafiz Jameel s/o Muhammad Boota
(vii) Muhammad Shahbaz @ Dodi s/o Muhammad Sadiq
(viii)Muhammad Shahbaz @ Kaka Khanda s/o Muhammad Nawaz were convicted vide judgment dated 24.1.2001 as follows:--
u/S. 302(b)/149 PPC: Sentenced to death as Tazir each on two counts. They were also directed to pay compensation of Rs. 2,00,000/- each to the LRs of deceased or in default whereof to suffer six months S.I. on two counts.
u/S. 7 of the Anti- Sentenced to death.
Terrorism Act 1997
u/S. 148/149 PPC Sentenced to undergo 3 years R.I. each with fine of Rs. 50,000/- each, in default whereof, to further undergo 3 months S.I.
u/S. 186/149 PPC Sentenced to 3 months R.I. each.
u/S. 353/149 PPC Sentenced to undergo 2 years R.I each with fine of Rs. 50,000/- each in default whereof to further undergo 3 months S.I. each.
It may be noted that some of the accused persons were declared as proclaimed offenders and non-bailable warrants of arrest were issued against them. Statedly accused Muhammad Azam Butt, Bahawal Sher alias Goonga and Bagga were killed in Police encounter.
The learned High Court while disposing of Murder Reference No. 8-T/01 and Criminal Petition No. 98/2001 filed by the convicts dismissed the appeal of Naheeb Butt and Moazzam Butt and their death sentences on all the charges were confirmed. However the sentences of Muhammad Aasim and Shahbaz @ Dody were reduced as under:
u/S. 302/149 PPC: Imprisonment for life on both the counts.
u/S. 7 (b) ATA: Imprisonment for life.
Benefit of Section 382-B Cr.P.C. also extended to them. The compensation payable to heirs of deceased as directed by the Trial Court maintained.
All the sentences orders to run concurrently.
As far as the remaining accused are concerned, they were acquitted of all the charges.
Pending listed petitions, parties compromised the matter outside the Court. As both the deceased were teenager therefore, their father Ashraf Bhatti, who had also filed separate petition for enhancement of sentence of two of the convicts and the matter Mst. Yasmeen Bhatti were summoned in the Court for purpose of verification of the compromise. Meanwhile certain other informations were also collected, on basis whereof it revealed that the convicts party have compensated to the complainants, Ashraf Bhatti as well as Mst. Yasmeen Ashraf by agreeing to pay Rs. 25,00,000/- to them. It may be noted that at an earlier stage when the compromise was affected, Rs. 7,00,000/- were paid whereas the remaining amount was still outstanding. However, on the last date of hearing, learned counsel appearing for the petitioners/convicts stated that they are ready to pay Rs. 20,00,000/- in cash and a plot of land but parents of the deceased stated that they would be given the price of plot. As such it was agreed that total amount of Rs. 25,00,000/- will be paid. The convicts had deposited Rs. 15,00,000/- on 16.12.2005 and had paid Rs. 3,00,000/- in the Court. As Ashraf Bhatti had already received 7,00,000/- out of Rs. 25,00,000/-, therefore, under an arrangement between them, he is entitled to receive only Rs. 5,50,000/- whereas the remaining Rs. 12,50,000/- shall be given to mother of the deceased Mst. Yasmeen Ashraf.
Office is directed to deposit Rs. 5,50,000/- in the account of Muhammad Ashraf Bhatti and Rs. 12,50,000/- in the account of Mst. Yasmeen Ashraf respectively which they had opened in HBL branch of this Court.
In view of the facts that parties have compromised the matter and compensation has already been received by the complainants therefore, permission is accorded to compound the offence u/S. 345 (2) Cr.P.C. Now we would advert to examine whether in the cases like one in hand were brutal murder of two young boys has been committed when they were confined in judicial lock-up, in a shocking manner which has outraged the public conscience, the convicts are liable for punishment on the principle of Fasad-fil-arz. The facts of the case and material available on record reveal that petitioners/convicts have committed crime in a brutal manner of the deceased who were confined in lock-up. Therefore, considering them sitting ducks, they took the law in their hands, without caring that police stations or Court premises are considered such places where law protects the life of citizens. Therefore, in exercise of jurisdiction u/S. 311 PPC the sentence of death of the two convicts namely Naheeb Butt alias Bhutto and Moazzam Butt is reduced from death to life imprisonment u/S. 302 PPC and u/S. 7(b) of ATA on both the counts. Similarly sentences awarded to Muhammad Aasam and Shahbaz @ Dodi for imprisonment of life u/S. 302(b) PPC is reduced to 14 years and sentence awarded to them for life imprisonment u/S. 7(b) of ATA is kept in tact on both the counts with benefit of Section 382-B of Cr.P.C., which has already been extended to them by the Lahore High Court. Remaining sentences awarded to them are kept intact. All the sentences shall run concurrently.
As a consequence of above, Cr. P. 445-L/2002 filed by convicts is disposed of whereas Crl. P. 435-L/02 filed by Muhammad Ashraf Bhatti is dismissed.
I.G., Police (Punjab) is directed to take action against the officer/official who allowed culprits to have a free excess in police station due to which they committed murder of two young boys and submit report for further orders if need be.
(Fouzia Fazal) Order accordingly.
PLJ 2006 SC 1474 [Appellate Jurisdiction]
Present: Javed Iqbal & Karamat Nazir Bhandari, JJ.
ZULFIQAR ALI SAJID--Petitioner
versus
KHAWAJA KALEEM YOUSAF--Respondent
Civil Petition No. 1715 of 2005, decided on 7.8.2006.
(On appeal from the judgment dated 16.3.2005 of the High Court of Sindh, Karachi passed in J.M. No. 57 of 2004).
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Ex-parte proceedings--Concealment of address--Determination--Decree was obtained by giving incorrect address of petitioner--Application was rejected--Assailed--Contentions--Justification--Correct address of the petitioner was concealed appears to have been made in oblivion of the relevant record which is demonstrative of the fact that correct business address of the petitioner was mentioned by respondent and it is same address on which decree passed in favour of respondent was got transferred--Held: No fraud has been committed or misrepresentation made by respondent which are sine qua non for invocation of provisions as contemplated in S. 12(2) CPC--Futile exercise appears to have been made by petitioner to flout decree passed against him--Leave to appeal refused. [P. 1476] A
Malik Muhammad Imtiaz Mahl, ASC for Petitioner.
Nemo for Respondent.
Date of hearing : 7.8.2006.
Order
This petition for leave to appeal is directed against the judgment dated 16.3.2005 whereby application under Section 12(2) CPC preferred on behalf of petitioner alongwith CMA No. 7971 of 2004 have been dismissed.
Pursuant to ex-parte proceedings suit for recovery instituted on behalf of respondent has been decreed which was assailed by way of filing an application under Section 12(2) CPC on the main ground that respondent had obtained the decree by giving incorrect address of the petitioner amounting to misrepresentation and fraud. The application has been rejected vide order impugned, hence this petition.
Malik Muhammad Imtiaz Mahl, learned ASC appeared on behalf of petitioner and contended that legal and factual aspects of the controversy have not been dilated upon in its true perspective which resulted in serious miscarriage of justice and the learned single Judge of High Court of Sindh at Karachi has dismissed the application preferred on behalf of petitioner under Section 12(2) CPC without any lawful justification and by ignoring fraudulent conduct and misrepresentation of the respondent who obtained decree by concealing the correct address of the petitioner. It is next contended that the learned single Judge in Chambers has not adverted to the facts of the case with diligent application of mind and dismissed the application preferred under Section 12(2) CPC in an arbitrary manner without framing any issue or recording evidence. It is also contended that no order for depositing the decretal amount within fifteen days could have been passed by the learned single Judge in chambers.
We have carefully examined the contentions as agitated on behalf of the petitioner, scanned the entire record with his eminent assistance and perused the judgment impugned carefully. An in-depth scrutiny of the record would reveal that the petitioner and his counsel remained absent on 15.2.2005 and 17.2.2005 and no plausible justification could be furnished for such absence. Besides that the order dated 17.2.2005 could not be complied with for the reasons best known to the petitioner, however, the learned ASC on behalf of petitioner could not justify non-compliance of the order dated 17.2.2005. The prime contention of the learned ASC on behalf of petitioner that the correct address of the petitioner was concealed, appears to have been made in oblivion of the relevant record which is demonstrative of the fact that correct business address of the petitioner was mentioned by the respondent and it is the same address on which the decree passed in favour of respondent was got transferred from Karachi to Sargodha. It is not the case of petitioner that incorrect business address was mentioned by the respondent. No fraud has been committed or misrepresentation made by the respondent which are sine qua non for invocation of the provisions as contemplated in Section 12(2) CPC. In fact a futile exercise appears to have been made by the petitioner to flout the judgment/decree passed against him.
In view of what has been stated above, we do not find any merit in this petition, which is dismissed and leave refused.
(Rafaqat Ali Sohal) Petition dismissed.
PLJ 2006 SC 1476 [Appellate Jurisdiction]
Present: Rana Bhagwandas & Sardar Muhammad Raza Khan, JJ.
Mst. GHULAM AYESHA alias ILYAS BEGUM and another--Petitioners
versus
SARDAR SHER KHAN (deceased) represented by LRs and others--Respondents
Civil Petition No. 797 of 2004, decided on 25.11.2005.
(On appeal from the judgment dated 1.10.2003 passed by the Lahore High Court, Rawalpindi Bench in Civil Revision # 41/D of 1998).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Determination of faith--Flying of Alam strong indication--The performance of Jinaza prayer in accordance with a particular faith was no proof at all of the faiths that the deceased professed--Plaintiff as well as the defendants, closely related to deceased were all Shias--The deceased used to fly Alam (flag) of Hazrat Abbas on his house--Held: Flying of Alam of Hazrat Abbas on ones house, inter alia, was a strong indication of ones Shia faith--Appeal accepted. [Pp. 1477 & 1478] A, B & C
Mr. Shehzad Ahmed, ASC with Mr. Ejaz Muhammad Khan, AOR for Petitioners.
Mr. Azhar Naveed Shah, ASC with Mr. S. Zafar Abbas Naqvi, AOR for Respondents # 1-4 to 6.
Date of hearing : 25.11.2005.
Judgment
Sardar Muhammad Raza, J.--Mst. Ghulam Ayesha Begum alias Ilyas Begum and Mst. Shahzadan Begum daughters of Sardar Fazal Khan seek leave to appeal against the judgment dated 1.10.2003 of a learned Judge in Chambers of Lahore High Court, Rawalpindi Bench whereby their revision petition against the judgment dated 8.1.1998 of the learned Additional District Judge Attock, was dismissed.
The dispute relates to the entire property of one Sardar Fazal Khan of village Shahrae Saadullah, Tehsil Fateh Jang, District Attock. After his death the property, vide inheritance mutation # 97 of 24.6.1992, devolved upon his two daughters Mst. Ghulam Ayesha and Mst. Shahzadan Begum, the present petitioners. One Sardar Sher Khan and four others, the collaterals of the deceased brought a suit against the aforesaid ladies claiming 1/3 share of inheritance, on the ground that Sardar Fazal Khan belonged to Sunni faith and that his mutation of inheritance attested under Shia law of inheritance was void, unlawful and ineffective upon their rights.
The learned trial Court dismissed the suit but the same was decreed by the learned Additional District Judge, upheld by the learned High Court in revision. The learned counsel for the petitioners is of the view that the learned High Court has failed to exercise its revisional jurisdiction and had incorrectly endorsed the appreciation of evidence wrongly done by the learned Additional District Judge. He added that there was overwhelming evidence even from plaintiff side to prove that Sardar Fazal Khan professed Shai faith. This, the learned counsel for the respondents vehemently opposed and supported the findings of last two Courts.
In the given circumstances, we have perused the record. One Hafiz Muhammad Yousaf (PW-1) is proved to have led the Jinaza prayer of Sardar Fazal Khan in accordance with Sunni faith. This by itself is no proof of the faith of deceased because he is not alive to make any choice. Being at the mercy of the living people it are they who have the choice and not the deceased whose faith is in question. The performance of Jinaza prayer in accordance with a particular faith is no proof at all of the faith that the deceased professed. We would, therefore, take the evidence of Hafiz Muhammad Yousaf out of consideration.
Even Hafiz Muhammad Yousaf admits that the plaintiff party had asked him to lead the prayers. Strong possibility cannot be ruled out that it was done to create evidence for benefit in future. It has particularly come in evidence that the close relatives, especially the daughters and wives were kept away from the scene. Hafiz Muhammad Yousaf has further admitted that especially in the month of Muharram, the deceased used to liberally give charity for the mosque but that he never offered prayers led by Hafiz Muhammad Yousaf.
Maqsood Hussain Shah (PW-2) is himself a Shia and he had performed Jinaza prayer of the deceased according to Shia faith. It has come on record that the plaintiffs as well as the defendants, closely related to Sardar Fazal Khan, area all Shias.
Sardar Sikandar Hayat Khan (PW-3), one of the plaintiffs has categorically admitted that deceased used to fly the Alam (flag) of Hazrat Abbas on his house.
The aforementioned evidence of the plaintiff where the flying of Alam is proved, is further fortified by the evidence of defendants and thus we have no reason to declare Sardar Fazal Khan as Sunni. The flying of Alam of Hazrat Abbas on ones house, inter alia is a strong indication of ones shia faith. A similar view has already been taken by the Supreme Court of AJ&K in case of Lal Hussain Shah (PLD 2000 SC (AJ&K) 25). Record is not properly appreciated either by the learned Additional District Judge or by the learned High Court.
Consequently, the petition after conversion into appeal is accepted, the impugned judgment is set aside and that dated 28.5.1995 of the learned Civil Judge Ist Class Attock, dismissing the suit of the respondent, is hereby restored.
(Fouzia Fazal) Leave accepted.
PLJ 2006 SC 1478 [Appellate Jurisdiction]
Present: Javed Iqbal & Hamid Ali Mirza, JJ.
Mst. SAADAT SULTAN & others--Petitioners
versus
MUHAMMAD ZAHUR KHAN & others--Respondents
Civil Petition No. 294 of 2004, decided on 14.11.2005.
(On appeal against the judgment dated 15.2.2003 passed by Peshawar High Court, Abbottabad Bench, in C.R. No. 85 of 1996).
(i) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 59, 60 & 61--Expert opinion--Handwriting expert--Scope--Value of evidence--Opinion of handwriting expert is a very weak type of evidence and is not that of a conclusive nature--Expert's evidence is only confirmatory or explanatory of direct or circumstnatial evidence and confirmatory evidence cannot be given preference where confidence inspiring and worthy of credence evidence is available--Held: There is nothing in Evidence Act to require evidence given by an expert in particular case to be corroborated before it could be acted upon as sufficient proof of what expert states--Question as to how much reliance a Court would be entitled to place on the statement of particular witness in particular case must necessarily depend on facts and circumstances. [Pp. 1480 & 1481] A & B
(ii) Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 61--Specific Relief Act (I of 1877), S. 42--Constitution of Pakistan, 1973--Art. 185(3)--Report of handwriting expert--Concurrent findings of fact by trial Court--Suit for declaration of title and cancellation of mutation--Signature available on impugned mutation was not made by deceased but opinion has been rebutted by respondent by producing cogent concrete and forthright evidence--Concurrent findings of facts recorded by Courts below though not being sacrosanct yet cannot be reversed unless and until it is established that there is a misreading or non-reading of evidence--Plaintiff could not point out misreading or non-reading of evidence or illegality and irregularity committed by Courts below in arriving at conclusion which is strictly in accordance with evidence which has rightly been appreciated by Courts below--Leave to appeal was refused. [Pp. 1481 & 1482] C & D
Syed Muhammad Ayub Bokhari, ASC and Ch. Akhtar Ali, AOR, for Petitioners.
Nemo for Respondents.
Date of hearing : 14.11.2005.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 15.2.2003 passed by learned Peshawar High Court (Abbottabad Bench) whereby the revision petition preferred on behalf of petitioner has been dismissed and the judgment of learned Additional District Judge, Haripur dated 2.7.1989 has been kept intact.
"(i) The Hand Writing Expert be examined under Order XLI, Rule 27 CPC in support of his report alongwith drawing and enlargements at the expense of the petitioners.
(ii) The respondent shall be afforded an opportunity to adduce evidence in rebuttal of the afore-mentioned evidence of Hand Writing Expert and its evidentiary value to be determined.
(iii) The questioned signature of the deceased transferor be independently compared in Court with his admitted signature on the mortgage deed Ex. DW.4/1 genuineness or otherwise.
(iv) The ocular and documentary evidence already adduced at the trial stage may be scrutinized either independently or in conjunction with the above mentioned three categories of evidence and then finding be recorded on the pivotal question as to the genuineness otherwise of the sale transaction and whether it was with consideration."
The learned Additional District Judge dismissed the appeal on 17.12.1995 after having examined the handwriting expert and other evidence which has come on record. The petitioner being aggrieved filed a revision petition which has been dismissed vide judgment impugned, hence this petition.
Syed Muhammad Ayub Bokhari, learned ASC entered appearance on behalf of petitioners and strenuously contended that the claim of petitioner was supported by the handwriting expert, who made it abundant clear that the signatures were never made on the impugned mutation by Muhammad Ayub (deceased) and no legal justification whatsoever was available for the learned Additional District Judge to differ with the opinion of handwriting expert. It is also contended that sale consideration was never received by Muhammad Ayub which aspect of the matter has not been appreciated properly by learned revisional Court which resulted in serious miscarriage of justice.
We have carefully examined the contentions as adduced on behalf of petitioners in the light of relevant provisions of law and record of the case. We have scanned the entire evidence and perused the judgments of learned trial and appellate Courts as well as the judgment impugned. Let we make it clear at the outset that the opinion of handwriting expert is a very weak type of evidence and is not that of a conclusive nature. It is well established by now that expert's evidence is only confirmatory or explanatory of direct or circumstantial evidence and the confirmatory evidence cannot be given preference where confidence inspiring and worthy of credence evidence is available. In this regard we are fortified by the dictum as laid down in case of Yaqoob Shah v. The State (PLD 1976 SC 53). There is no doubt that the opinion of handwriting expert is relevant but it does not amount to conclusive proof as pressed time and again by the learned ASC on behalf of petitioner and can be rebutted by overwhelming independent evidence. In this regard reference can be made to Abdul Majeed v. State (PLD 1976 Kar. 762). It is always risky to base the findings of genuineness of writing on expert's opinion. In this behalf we are fortified by the dictum as laid down in case of Ali Nawaz Gardezi v. Muhammad Yousuf (PLD 1963 SC 51). It hardly needs any elaboration that "expert opinion must always be received with great caution, especially the opinion of handwriting experts. An expert witness, however impartial he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him. The mere fact of opposition on the part of the other side is apt to create a spirit of partisanship and rivalry, so that an expert witness is unconsciously impelled to support the view taken by his own side. Besides it must be remembered and an expert is often called by one side simply and solely because it has been ascertained that he holds views favourable to its interests. Although such evidence has to be received with "great caution", yet such evidence, and reasons on which it is based, are entitled to careful examination before rejection and non-acceptance by Court of expert's evidence does not mean that the expert has committed perjury. Of all kinds of evidence admitted in a Court, this is the most unsatisfactory. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence." (Kazim Hussain v. Shambhoo Nath 1931 O. 298, Deputy Commissioner, Lucknow v. Chandra Kishore Tewari 1974 O. 180, Mushtaq Ahmad Gurmani v. Z. A. Sulehri PLD 1958 Lah. 747, Sadiqa Begum v. Ata Ullah 1933 L 885, Lt. Col. Muhammad Yusuf v. Ali Nawaz Gardezi PLD 1963 Lah. 141, Indar Datt v. E, 1931 L 408). There is nothing in the Evidence Act to require the evidence given by an expert in any particular case to be corroborated before it could be acted upon as sufficient proof of what the expert states. Of course the question as to how much reliance a Court would be entitled to place on the statement of any particular witness in any particular case must necessarily depend on the facts and circumstances of that particular case. (Ladharam Narsinghdas v. E., 1945 S. 4).
In the light of the criterion as mentioned herein above we have examined the report of handwriting expert by whom it has been opined in a categoric manner that the signature available on impugned mutation was not made by Muhammad Ayub (deceased) but the said opinion has been rebutted by the respondent by producing cogent, concrete and forthright oral evidence. In this regard the statement of Fazal Dad (D.W.5) can be referred by whom it has been stated in an unambiguous manner that mutation in question was signed by Muhammad Ayub (deceased) before Khan Zaman Khan, the Revenue Officer. The version of Fazal Dad (D.W.5) has been corroborated by the Revenue Officer who appeared as (D.W.3) by stating that on 5.10.1974 Muhammad Ayub appeared before him and admitted to have received a sale consideration of Rs. 31000/-. The Revenue Officer further stated that the statement got recorded by Muhammad Ayub was read over to him which was signed in the presence of witnesses. The statements of Fazal Dad (D.W.5) and Khan Zaman Khan, Revenue Officer (D.W.) have rightly been taken into consideration and believed by the Courts below as they stood firm to the test of cross-examination and nothing beneficial and advantageous could be extracted rendering any assistance to the case of respondents. In such view of the matter the concurrent findings of fact recorded by the learned trial and appellate Courts determination whereof has been upheld by the learned High Court cannot be reversed without any lawful justification which is lacking in this case. It is well settled by now that the concurrent findings of fact recorded by the Courts below though not being sacrosanct yet cannot be reversed unless and until it is established that there is a misreading or non-reading of evidence. The learned ASC could not point out any misreading or non-reading of evidence or illegality and irregularity committed by the Courts below in arriving at the conclusion as mentioned herein above which is strictly in accordance with the evidence which has rightly been appreciated by the Courts below. The sale consideration was admittedly received by Muhammad Ayub (deceased) as stated by Khani Zaman Khan (D.W.3) and thus the contention of learned ASC that no sale could be finalized unless and until its consideration is passed on to the vendor seems to be fallacious.
In the light of what has been discussed herein above the petition being devoid of merit is dismissed and leave refused.
(Rafaqat Ali Sohal) Petition dismissed.
PLJ 2006 SC 1482 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J. and M. Javed Buttar, J.
SHER KHAN--Petitioner
versus
UNITED BANK LTD. & others--Respondents
Civil Petitions Nos. 560-K of 2004 & 602-K of 2005, decided on 22.1.2005.
(On appeal from the judgment dated 13.4.2004 & 15.7.2005 passed by Federal Service Tribunal, Karachi in Appeal No. 154(k)/98 & Appeal No. 926(K) CE/2004).
Service Tribunal Act, 1973 (LXX of 1973)--
----S. 2-A--Constitution of Pakistan 1973--Art. 212(3)--Dismissal from service--Privatization of UBL--Federal Service Tribunal declined to exercise jurisdiction--Question of public importance--Validity--As a question of public importance is involved in petitioners, therefore, appeals arising out of petitions are ordered to be fixed before Bench Scheduled to hold hearing wherein question inter alia, relating to validity or otherwise of S. 2-A is being considered--Held: Office to prepare the appeal on present record with liberty to parties to file additional documents. [P. 1484] A
2005 SCMR 1785, ref.
Mr. Muhammad Muzaffar ul Haq, ASC for Petitioner (in C.P. No. 560-K/04).
Mr. Mehmood A. Ghani, ASC and Mr. K.A. Wahab, AOR for Respondents (in C.P. No. 560-K/04).
Mr. Shahid Hussain Bajwa, ASC Mr. Ahmad Ullah Farooqi, AOR for the Petitioner (in C.P. No. 602-K/05).
Respondent No. 1 in person (in C.P. No. 602-K/05).
Date of hearing : 22.11.05
Order
Iftikhar Muhammad Chaudhry, CJ.--Listed petitions have been filed against the judgment dated 13.4.2004 & 15.7.2005 passed by Federal Service Tribunal, Karachi in Appeal No. 154 (K)/98 & Appeal No. 926(K) CE/2004.
"5. It has been now conclusively held that after the Privatization of the United Bank Limited. FST has lost its jurisdiction and in the light of provisions of Section 28 and 31 of the Privatization Commission Ordinance of 2000 all the pending cases shall now came within the ambit of the jurisdiction of the Hon'ble High Court. Section 42 of the said Ordinance also provides that the provisions of Privatization Ordinance shall have effect of over riding all other laws.
Similarly in the connected case CP No. 602-K/2005 the Tribunal exercised its jurisdiction despite the process of privatization of HBL. Relevant para therefrom is reproduced herein below:
"For our purpose, relying on the judgment in the above cases against UBL, which is a judgment in rem, constituting the precedence for the like cases, we hold that the Tribunal has jurisdiction to hear the cases of HBL pending before the Tribunal prior to the privatization of HBL. As such, we allow the request of the Appellant for fixation of his appeal regular hearing Issue, we allow the request of the Appellant for fixation of his appeal regular hearing. Issue Notice to the parties for regular hearing Adjourned to 15.11.2005."
Learned counsel for the petitioner contended that in view of the judgment in the case of Manzoor Ali & 39 others v. United Bank Limited through President (2005 SCMR 1785) the Service Tribunal would continue to exercise its jurisdiction. He also stated that the view expressed in this judgment has been re-affirmed in another judgment announced on 12th May, 2005 in Muhammad Yousaf Qureshi & others v. M/s. United Bank etc. (CAs No. 99, 108, 111 & 114 of 2004 a/w CPs 571-L, 1057-L, 1061-L & 1064-L/2004).
On the other hand learned counsel contended that in the above noted cases, the effect of the earlier judgments in CP No. 247-L/98 and CPs No. 2767-L, 3030-L/2000, 157-L & 235 of 2001, wherein it has been held that after the privatization, the Tribunal would have no jurisdiction to decide the cases of the employees whose cases are covered by Section 2-A of the Service Tribunals Act 1973, was not considered.
Mr. Shahid Hussain Bajwa, learned counsel for HBL contended that in the matters where there is equal number of the Judges and earlier judgment has not been considered, the later judgment would be considered to have passed incuriam. He made reference to the following para from Salmond of Jurisprudence.
Inconsistency with earlier decision of higher Court. It is clear law that a precedent loses its binding force if the Court that decided it overlooked an inconsistent decision of a higher Court. If, for example, the Court of appeal decides a case in ignorancy of a decision of the House of Lords which went the other way, the decision of the House of Lords which went the other way, the decision of the Court of Appeal is per incuriam, and is not binding either on itself (r) or on lower Courts (s); on the contrary, it is the decision of the House of Lords that is binding. The same rule applies to precedents in other Courts, such as the Divisional Court (t).
After having heard the learned counsel for the parties and noticing the above judgments leave to appeal is grnated to examine respective contentions of parties counsel.
As a question of public importance is involved in these petitions, therefore, appeals arising out of these petitions are ordered to be fixed before a larger Bench scheduled to hold hearing at Islamabad w.e.f. 12th December 2005 wherein question, inter alia, relating to the validity or otherwise of Section 2-A is being considered.
Office to prepare the appeal on the present record with liberty to the parties to file additional documents, if need be.
(Rafaqat Ali Sohal) Leave granted.
PLJ 2006 SC 1485 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Nasir-ul-Mulk, JJ.
COLLECTOR CUSTOMS, CUSTOM HOUSE, PESHAWAR, AMAN GARH--Petitioner
versus
M/s. PAPER INTERNATIONAL (PVT.) LTD. NOWSHERA and another--Respondents
Civil Petition No. 173-P of 2002, decided 16.8.2006.
(On appeal from the judgment dated 12.12.2001 of the Peshawar High Court, Peshawar passed in FAO. No. 91/2000).
Customs Act, 1969 (IV of 1969)--
----S. 156(1)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Clause 62--Penalty and jurisdiction--Held: Penalty shall not exceed rupees twenty five thousand and the person concerned could also be tried by the Special Judge Customs--If found guilty he should liable to imprisonment for a term not exceeding five years or fine or to both--Petition dismissed. [P. 1488] A
Mr. Abdur Rauf Rohaila, ASC with Mr. Tasleem Hussain, AOR for Petitioner.
Syed Safdar Hussain, AOR for Respondent No. 1.
Nemo for Respondent No. 2.
Date of hearing : 16.8.2006.
Judgment
Sardar Muhammad Raza Khan, J.--The Collector Customs Peshawar seeks leave to appeal against the judgment dated 12.12.2001 rendered by a learned Division Bench of Peshawar High Court whereby, it was held that, to the irregularity committed by M/s. Paper International (Pvt.) Ltd., the correct section of Customs Act applicable was Section 156(1) Clause 62 and not Section 156(1) Clause 90, as claimed by the Customs department.
The respondent imported to consignments of wood pulp on 20.5.1998 and 25.5.1998 from Canada and Indonesia. The consignment of 3000 metric tons of Indonesian origin was cleared at Karachi while Canadian consignment of 497.361 metric tons was unloaded in the factory in private bonded warehouse; both simultaneously. When the department physically checked the consignment on 5.10.1998, a shortage of 357.361 metric tons was discovered, to have been consumed without intimation to the Customs authorities.
The adjudication officer vide order-in-original dated 4.11.1998 imposed a penalty of rupees three million plus duties which, by the Custom Appellate Tribunal was reduced to rupees one million. The order of the Tribunal was set aside by the Hon'ble High Court through impugned judgment, holding that the respondents were liable to a penalty not exceeding rupees twenty-five thousand as provided by Section 156(1) Clause 62 of the Customs Act.
Having comprehended the actual commission or omission by the respondent company, we are left to determine as to what section of law is attracted, in the circumstances. Clauses 62 and 90 of Section 156(1) of the Act are reproduced for facility of ready reference:--
Offences
Penalties.
Section of this Act to which offence has reference.
Such person shall be liable to a penalty, not exceeding twenty five thousand rupees and upon conviction by a Special Judge, he shall further be liable to imprison-ment for a term not exceeding five years, or to fine, or to both.
Such goods shall be liable to confiscation; and any person concerned shall also be liable to penalty not exceeding ten times the value of the goods.
A plain reading of the two clauses juxtaposed, would indicate without difficulty of comprehension or interpretation that to the circumstances of the present case, it is Clause 62 of the section that applies and not Clause 90. It clearly provides that the penalty shall not exceed rupees twenty-five thousand and the person concerned can also be tried by the Special Judge Customs. If found guilty he shall be liable to imprisonment for a term not exceeding five years or fine or to both.
In the circumstances, the High Court rightly came to the conclusion that it arrived at. There being no force in the petition, it is hereby dismissed and leave to appeal refused.
(Fouzia Fazal) Petition dismissed.